REVISED APRIL 13, 2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-31214

GULF RESTORATION NETWORK; MISSOURI COALITION FOR THE 

ENVIRONMENT; IOWA ENVIRONMENTAL COUNCIL; TENNESSEE 

CLEAN WATER NETWORK; MINNESOTA CENTER FOR 

ENVIRONMENTAL ADVOCACY; SIERRA CLUB; PRAIRIE RIVERS 

NETWORK; KENTUCKY WATERWAYS ALLIANCE; ENVIRONMENTAL 

LAW & POLICY CENTER; NATURAL RESOURCES DEFENSE COUNCIL, 

INCORPORATED; WATERKEEPER ALLIANCE, INCORPORATED,

Plaintiffs - Appellees

v.

GINA McCARTHY, Administrator of the United States Environmental 

Protection Agency; UNITED STATES ENVIRONMENTAL PROTECTION 

AGENCY,

Defendants - Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

Before HIGGINBOTHAM, CLEMENT, and HIGGINSON, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The Clean Water Act establishes a statutory scheme to protect and 

improve the quality of the country’s waters. The administration of the Act

depends on complicated interactions of three actors: the states, with lead 

responsibility for protecting waters within their borders; the EPA, which steps 

United States Court of Appeals

Fifth Circuit

FILED

April 7, 2015

Lyle W. Cayce

Clerk

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in when the state-led efforts are inadequate; and the federal courts, which 

enforce Congressional mandates against state and federal regulators. 

Not every state or EPA action taken under the Act is judicially 

cognizable; some are committed to agency discretion and are unreviewable. 

Under the statute, the EPA Administrator is obligated to issue new water 

quality standards in any case where she “determines that a revised or new 

standard is necessary to meet the requirements of” the Act. Here, the

Administrator denied a petition for rulemaking, declining to make a so-called 

“necessity determination.” The petitioners challenged this decision in federal 

court. The EPA countered that the denial was an unreviewable discretionary 

act.

This case poses two questions. First, do we have subject matter 

jurisdiction to review the EPA’s decision not to make a necessity 

determination. We hold that we do. Second, was the EPA required to make 

such a determination. We hold that it was not. 

I.

A.

Congress passed the Clean Water Act1 “to restore and maintain the 

chemical, physical, and biological integrity of the Nation’s waters.”2 The Act

bans “the discharge of any pollutant by any person,” unless affirmatively 

allowed by law.3 In regulating discharge, the Act “anticipates a partnership 

1 The “Act” or “CWA.”

2 33 U.S.C. § 1251(a). 

3 Id. § 1311(a). A “pollutant” includes, with certain enumerated exceptions, “dredged 

spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical 

wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, 

rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into 

water.” Id. § 1362(6). “Discharge of a pollutant” is defined broadly as “any addition of any 

pollutant to navigable waters from any point source,” id. § 1362(12), and “navigable waters,” 

in turn, “means the waters of the United States, including the territorial seas,” id. § 1362(7). 

The outer limit of the phrase “waters of the United States” remains fuzzy. See, e.g., Rapanos

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between the States and the Federal Government,”4 with both sovereigns 

sharing regulatory responsibilities for water protection.5

One area where both states and the federal government play a role is in 

the setting and administration of water quality standards. These regulations

“define[] the water quality goals of a water body . . . by designating the use or 

uses to be made of the water and by setting criteria necessary to protect the 

uses.”6 The states are the primary player in this process; they are “responsible 

for reviewing, establishing, and revising water quality standards.”7 The 

federal government plays a secondary role, with important backstop 

responsibilities. State standards must be submitted to the EPA, the agency

tasked with reviewing and approving these standards, to ensure that they are

sufficient to “protect the public health or welfare, enhance the quality of water 

and serve the purposes of this [Act].”8 If the state’s standards do not pass 

muster, the EPA specifies changes required for approval.9 

v. United States, 547 U.S. 715, 733-34 (2006); id. at 766-67 (Kennedy, J., concurring in the 

judgment).

4 Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992).

5 In New York v. United States, 505 U.S. 144 (1992), the Court termed this regulatory 

arrangement one of “cooperative federalism,” where Congress “offer[s] States the choice of 

regulating that activity according to federal standards or having state law pre-empted by 

federal regulation.” Id. at 167 (internal citation omitted). 

6 40 C.F.R. § 131.2. These standards must “protect public health or welfare, enhance 

the quality of water and serve the purposes of the [Act].” Id. “‘Serve the purposes of the Act’ 

(as defined in . . . the Act) means that water quality standards should, wherever attainable, 

provide water quality for the protection and propagation of fish, shellfish and wildlife and for 

recreation in and on the water and take into consideration their use and value of public water 

supplies, propagation of fish, shellfish, and wildlife, recreation in and on the water, and 

agricultural, industrial, and other purposes including navigation.” Id. 7 Id. § 131.4(a).

8 33 U.S.C. § 1313(c)(2)(A).

9 Id. § 1313(c)(3). The EPA must notify the states of any changes within 90 days after 

the proposed water quality standards are submitted to it. Id.

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The EPA may also directly set water quality standards through its own 

regulations under the two circumstances set out in 33 U.S.C. § 1313(c)(4)(A) 

and (B) (“section 1313(c)(4)”). 

(A) if a revised or new water quality standard submitted by such 

State . . . for such waters is determined by the Administrator not 

to be consistent with the applicable requirements of this chapter, 

or

(B) in any case where the Administrator determines that a revised 

or new standard is necessary to meet the requirements of this 

chapter.10

In other words, in order to regulate pursuant to its section 1313(c)(4)(B)

powers, the EPA must make what is called a “necessity determination.” If the 

agency sets water quality standards, it acts through a rulemaking process, and 

“is subject to the same policies, procedures, analyses, and public participation 

requirements established for States in these regulations.”11

B.

This case began when a group of environmental organizations petitioned 

the EPA12 to “use its powers [pursuant to section 1313(c)(4)(B)] to control 

nitrogen and phosphorous pollution” within the Mississippi River Basin and 

the Northern Gulf of Mexico.

The EPA declined to do so. While the agency agreed that nitrogen and 

phosphorous pollution “is a significant water quality problem,” it did “not 

believe that the comprehensive use of federal rulemaking authority is the most 

10 Id. § 1313(c)(4)(A)-(B) (emphasis added). 11 40 C.F.R. § 131.22(c). 12 The organizations included: Gulf Restoration Network, Louisiana Environmental 

Action Network, Tennessee Clean Water Network, Public Employees for Environmental 

Responsibility, Kentucky Waterways Alliance, Missouri Coalition for the Environment, Iowa 

Environmental Council, Prairie Rivers Network, Environmental Law & Policy Center, 

Midwest Environmental Advocates, Minnesota Center for Environmental Advocacy, Natural 

Resources Defense Council, and the Sierra Club.

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effective or practical means of addressing these concerns at this time.” Instead, 

the EPA said that, because its “long-standing policy, consistent with the CWA, 

has been that states should develop and adopt standards in the first instance,” 

and in light of the fact that the states had been “quite active” in addressing 

water pollution issues, it was appropriate to let the states take the primary 

role in issuing new standards. In denying the petition, the EPA was explicit

that it was “not determining that [new standards] are not necessary to meet 

CWA requirements,” but rather was “exercising its discretion to allocate its 

resources in a manner that supports targeted regional and state activities to 

accomplish our mutual goals of reducing [nitrogen and phosphorous] pollution 

and accelerating the development and adoption of state approaches to 

controlling [nitrogen and phosphorous].”

The petitioners filed suit, positing that the EPA had violated the 

Administrative Procedure Act13 and the CWA by declining to make a necessity 

determination. The EPA moved to dismiss the case on subject matter 

jurisdiction grounds, arguing that the decision whether to make a necessity 

determination was a discretionary act that the court lacked authority to 

review. The parties also cross-moved for summary judgment on the merits. 

The district court ruled that it had jurisdiction to review the EPA’s 

decision not to make a necessity determination.14 It then went one step 

further. Pursuant to the Supreme Court’s decision in Massachusetts v. EPA,15

it held that the “EPA could not simply decline to make a necessity 

determination in response to . . . [the] petition for rulemaking.”16 It remanded 

13 5 U.S.C. § 551 et seq. (the “APA”).

14 Gulf Restoration Network v. Jackson, No. 12-677, 2013 WL 5328547, at *4 (E.D. La. 

Sept. 20, 2013). 15 549 U.S. 497 (2007).

16 Gulf Restoration Network, 2013 WL 5328547, at *6.

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the case to the agency with orders to conduct a necessity determination.17 In

doing so, the district court declined to issue specific guidance on “the types of 

factors that EPA can or cannot consider when actually making the necessity 

determination.”18

This timely appeal followed.

II.

We review de novo the district court’s legal conclusions about its subject

matter jurisdiction.19 

A.

We begin with the elementary principle that “the United States, as 

sovereign, is immune from suit save as it consents to be sued.”20 The 

petitioners have the burden of proving that Congress has consented to suit by 

affirmatively waiving sovereign immunity in the specific context at issue.21 In 

the Administrative Procedure Act, the statute governing federal agency 

operations generally, Congress provided a general waiver of sovereign 

immunity for “[a] person suffering legal wrong because of agency action, or 

adversely affected or aggrieved by agency action within the meaning of a 

relevant statute.”22 In light of this language, federal courts must apply a 

general presumption that they have jurisdiction to review final agency 

actions.23 But this waiver is not absolute, and Congress has provided that the 

17 Id. at *7. 18 Id. 19 Filer v. Donley, 690 F.3d 643, 646 (5th Cir. 2012).

20 La. Dep’t. of Envtl. Quality v. U.S. E.P.A., 730 F.3d 446, 448 (5th Cir. 2013) (bracket 

omitted) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)).

21 See id. at 448-49.

22 5 U.S.C. § 702. The APA waives sovereign immunity for all claims “other than 

money damages.” Id. Only final agency actions are reviewable under the APA. Id. § 704.

23 See, e.g., Sackett v. E.P.A., 132 S. Ct. 1367, 1373 (2012) (“The APA, we have said, 

creates a ‘presumption favoring judicial review of administrative action,’ but as with most 

presumptions, this one ‘may be overcome by inferences of intent drawn from the statutory 

scheme as a whole.’”) (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984)); Save 

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APA – and its concomitant grant of judicial review – does not apply in two 

circumstances: first, if the “statute[] preclude[s] judicial review,” an exception 

not at issue in this case; and second, if “agency action is committed to agency 

discretion by law.”24

In a quartet of cases, the Supreme Court provided two principles that 

guide our discretion analysis. The first is that the agency discretion clause “is 

a very narrow exception” to the principle of judicial review of administrative

action.25 It applies only “in those rare instances where statutes are drawn in 

such broad terms that in a given case there is no law to apply.”26 These are 

situations where “the statute is drawn so that a court would have no 

meaningful standard against which to judge the agency’s exercise of discretion. 

In such a case, the statute (‘law’) can be taken to have ‘committed’ the 

decisionmaking to the agency’s judgment absolutely.”27

In determining whether Congress has provided a “meaningful standard,” 

the court conducts a “careful examination of the statute on which the claim of 

agency illegality is based.”28 We look first to the statutory text, paying 

particular attention to the words Congress has chosen. For example, in 

Webster v. Doe, reviewing a statute that allowed the Central Intelligence 

the Bay, Inc. v. Adm’r. of E.P.A., 556 F.2d 1282, 1293 (5th Cir. 1977) (“A long-standing and 

strong presumption exists that action taken by a federal agency is reviewable in federal 

court.”).

24 5 U.S.C. § 701(a)(1), (2); see also Webster v. Doe, 486 U.S. 592, 597 (1988) (“The scope 

of judicial review under [section] 702 . . . is predicated on satisfying the requirements of 

[section] 701.”).

25 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), abrogated 

on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).

26 Id. (internal quotation marks and citation omitted).

27 Heckler v. Chaney, 470 U.S. 821, 830 (1985). The Court recognized that adopting 

“[t]his construction avoids conflict with the ‘abuse of discretion’ standard of review in [section] 

706 [of the APA] – if no judicially manageable standards are available for judging how and 

when an agency should exercise its discretion, then it is impossible to evaluate agency action 

for ‘abuse of discretion.’” Id.

28 Webster, 486 U.S. at 600.

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Agency Director to terminate an employee, the Supreme Court highlighted the 

fact that the statute was drawn so that the Director could fire the employee 

whenever he “‘shall deem such termination necessary or advisable in the 

interests of the United States,’ not simply when the dismissal is necessary or 

advisable to those interests.”29 This word choice, the Court concluded, “fairly 

exudes deference to the Director, and appears to us to foreclose the application 

of any meaningful judicial standard of review.”30 The reviewing court must 

also look at the structure and purpose of the statute.31 Turning again to 

Webster, there, the Court found dispositive the fact that the CIA’s “efficacy, 

and the Nation’s security, depend in large measure on the reliability and 

trustworthiness of the Agency’s employees.”32 Judicial review of the 

termination decision, the Court implicitly concluded, would hinder the 

agency’s effectiveness. 

The second agency discretion principle is that different substantive types 

of agency decisions are subject to different presumptions of reviewability. In 

general, agency decisions to affirmatively do something are presumptively 

reviewable.33 The reviewability of agency decisions not to do something 

depends on the type of activity at issue. For “[r]efusals to take enforcement 

steps . . . the presumption is that judicial review is not available.”34 While 

29 Id. 30 Id.

31 See id. at 600-01.

32 Id. at 601.

33 See Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967), abrogated on other grounds 

by Califano v. Sanders, 430 U.S. 99 (1977).

34 Heckler v. Chaney, 470 U.S. 821, 831 (1985). A refusal to institute investigative 

actions is also presumptively unreviewable. Id. at 838. The Court justified this presumption 

on several grounds, including (1) the agency’s need to determine how best to allocate its 

enforcement resources, id. at 831, (2) the fact that “when an agency refuses to act it generally 

does not exercise its coercive power over an individual’s liberty or property rights, and thus 

does not infringe upon areas that courts often are called upon to protect,” id. at 832 (emphasis 

omitted), and (3) the similarity between “an agency’s refusal to institute proceedings” and a 

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Congress can trump this presumption, it must be explicit in doing so.35 In 

contrast, an agency’s denial of a petition for rulemaking is “susceptible to 

judicial review” though, as a substantive matter, “such review is ‘extremely 

limited’ and ‘highly deferential.’”36 

We pause to resolve one doctrinal uncertainty: whether a denial of a 

rulemaking petition is categorically reviewable, or whether it is merely 

presumptively reviewable? The petitioners urge us to adopt the former 

construction. We cannot. While the Supreme Court’s language in 

Massachusetts v. EPA could support such a holding,37 we conclude that the 

better reading is that these denials are presumptively reviewable, subject to 

Congressional language clearly to the contrary, a reading faithful to Webster’s 

exhortation that we determine reviewability only after a “careful examination 

of the statute.”38 It would accord with readings of Massachusetts v. EPA by 

prosecutor’s decision “not to indict – a decision which has long been regarded as the special 

province of the Executive Branch,” id. 35 See id. at 838. 36 Massachusetts v. EPA, 549 U.S. 497, 527-28 (2007) (quoting Nat’l Customs Brokers 

& Forwarders Ass’n of Am., Inc. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989)) (internal 

quotation marks omitted). In distinguishing between refusals to initiate enforcement actions 

and denials of petitions for rulemaking, the Court concluded that “agency refusals to initiate 

rulemaking ‘are less frequent, more apt to involve legal as opposed to factual analysis, and 

subject to special formalities, including a public explanation.’” Id. at 527 (quoting Am. Horse 

Protection Ass’n, Inc. v. Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987)). The Court also recognized that 

these agency decisions “arise out of denials of petitions for rulemaking which (at least in the 

circumstances here) the affected party had an undoubted procedural right to file in the first 

instance.” Id. 37 See id. at 527 (stating, without relevant terms of limitation, that “[r]efusals to 

promulgate rules are thus susceptible to judicial review”). The Second Circuit has 

interpreted this language consistent with a categorical right to review. See, e.g., New York

v. U.S. Nuclear Regulatory Comm’n, 589 F.3d 551, 554 (2d Cir. 2009) (holding that “[a]n 

agency decision to deny a rulemaking petition is subject to judicial review,” but cautioning 

that the standard of review is sufficiently deferential that it “has been said to be so high as 

to be akin to non-reviewability”) (internal citation and quotation marks omitted). 38 Webster, 486 U.S. at 600.

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some of our sister circuits,39 and our own court’s long-standing conclusion that 

there is a “strong presumption,” subject to Congressional language, that 

“action taken by a federal agency is reviewable in federal court.”40 By “strong” 

we mean that this presumption is not easily overcome. Nonetheless, textual 

limits on agency action remain a prerequisite to our jurisdiction.

B.

Our inquiry proceeds in two steps: First, we determine whether the 

agency action is akin to a denial of a rulemaking petition or whether it is 

properly termed a refusal to engage in enforcement actions. If it is the former, 

we employ the presumption of reviewability, if it is the latter, the presumption 

is nonreviewability. Second, we look to the statutory provision at issue to see 

whether Congress has spoken sufficiently clearly as to override the appropriate 

presumption.

1.

We begin by determining whether the EPA’s denial of the plaintiffs’ 

request for the adoption of water quality standards is properly classified as a 

denial of a rulemaking petition or is better termed a refusal to engage in 

39 For example, in Conservancy of Sw. Fla. v. U.S. Fish & Wildlife Service, 677 F.3d 

1073 (11th Cir. 2012), the Eleventh Circuit, citing Massachusetts, rejected the proposition 

“that the denial of a petition for rulemaking is always unreviewable, or even presumptively 

unreviewable.” Id. at 1085. Even still, it concluded that “in context – against the backdrop 

of a statutory and regulatory regime that provides absolutely no standards that constrain the 

Service’s discretion – the statute’s permissive language makes it all the more apparent that 

the decision at issue is committed to agency discretion.” Id. at 1084. Similarly, in Preminger

v. Sec’y of Veterans Affairs, 632 F.3d 1345, 1351-52 (Fed. Cir. 2011), the Federal Circuit 

concluded that it had authority to review the denial of a rulemaking petition after using 

standard statutory interpretation techniques, such as reasoning-by-structure and legislative 

history, implicitly suggesting its view that there was no categorical right to review divorced 

from the statutory context.

40 See, e.g., RSR Corp. v. Donovan, 747 F.2d 294, 299 n.23 (5th Cir. 1984) (quoting 

Deering Milliken, Inc., Unity Plant v. Occupational Safety & Health Review Comm’n, 630 

F.2d 1094, 1099 (5th Cir. 1980)). The denial of a rulemaking petition is a form of agency 

action. See, e.g., Defenders of Wildlife v. Gutierrez, 532 F.3d 913, 918-19 (D.C. Cir. 2008).

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enforcement activities. While we recognize that the line between enforcement 

and rulemaking is not always clear,41 we conclude that the EPA’s action was

akin to a denial of a rulemaking petition and is presumptively reviewable. 

In classifying a petition, we look not to the title of the plaintiffs’ filing

but to the substance of their request.42 In their petition, the plaintiffs proposed

that:

EPA should adopt numeric water quality standards for the 

portion of the ocean protected by the Clean Water Act but outside 

the jurisdiction of any state and for all water bodies in all states 

for which numeric water quality standards concerning nitrogen 

and phosphorous pollution have not yet been established. In the 

alternative, EPA should do this for the Northern Gulf of Mexico 

and for all waters of the United States within the Mississippi 

River Basin. At a minimum, EPA should establish water quality 

standards to control nitrogen and phosphorous pollution in the 

mainstem of the Mississippi River and the Northern Gulf of 

Mexico.

On their face, the wide scope of these requests, which would require the 

adoption of water quality standards across many different states, resembles 

the type of “broadly applicable . . . policy” that is generally considered a 

hallmark of rulemaking.43 The standards, if adopted, would also “grant rights, 

impose obligations, or produce other significant effects on private interests,” 

and would “effect a change in existing law or policy,” both of which are 

considered essential features of substantive rules.44 Moreover, the mechanism 

by which the EPA would implement the new water quality standards would be 

41 Cf., e.g., Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 202 (1947) 

(recognizing that agencies can set broadly applicable standards of policy “either by general 

rule or by individual order”).

42 See, e.g., Animal Legal Def. Fund v. U.S. Dep’t of Agric., No. 2:12-cv-4028, 2013 WL 

1191736, at *3 (C.D. Cal. Mar. 22, 2013).

43 Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 677 (D.C. Cir. 1994).

44 Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987) (internal citations 

omitted).

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by “prepar[ing] and publish[ing] proposed regulations”45 pursuant to “the same 

policies, procedures, analyses, and public participation requirements” that 

bind the states when they issue their own standards.46 This implementation 

process sounds in rulemaking, not enforcement.

In arguing that the denial of the water quality standards petition is an 

unreviewable nonenforcement decision, the EPA relies heavily on our decision 

in Public Citizen, Inc. v. United States Environmental Protection Agency.47

There, the petitioner challenged the EPA’s decisions not to issue a Notice of 

Deficiency48 to the state of Texas for failing to comply with certain regulatory 

requirements set out in Title V of the Clean Air Act.49 We concluded that the 

decision not to issue a NOD was essentially a “decision not to invoke an 

enforcement mechanism,” and was presumptively unreviewable.50 The 

language of the statute, which stated that the EPA must “issue an NOD when 

it determines a program is being inadequately administered,” was not 

sufficiently specific to constrain EPA’s discretion and overcome the 

presumption against judicial review.51

45 33 U.S.C. § 1313(c)(4). 

46 40 C.F.R. § 131.22(c).

47 343 F.3d 449 (5th Cir. 2003).

48 A “NOD.” 49 See id. at 453-55. Title V of the Clean Air Act, the “CAA,” “requires major stationary 

sources of air pollution, such as factories, to receive operating permits incorporating CAA 

requirements and establishes a procedure for federal authorization of state-run Title V 

permit programs. Title V permits do not impose additional requirements on sources but, to 

facilitate compliance, consolidate all applicable requirements in a single document.” Id. at 

453 (internal citation omitted). As is relevant here, “[a]fter the EPA approved a State's Title 

V permit program, the EPA was to maintain an oversight role. The CAA provides that, 

whenever the EPA makes a determination that a State is not adequately administering and 

enforcing its permit program in accordance with Title V, it shall provide a notice of deficiency 

(NOD) to the State. If the State does not correct the deficiency within 18 months, it faces 

sanctions and, eventually, EPA takeover of its program.” Id. at 454 (internal citations 

omitted).

50 Id. at 464.

51 Id. at 465; see also id. at 464-65.

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The EPA argues that Public Citizen controls. We disagree. Given the

factual differences between the NOD process under the CAA and the necessity 

determination mechanism under the CWA, our earlier decision is inapposite. 

First, a NOD determination is explicitly premised on the determination by the 

EPA that the state in question is not “adequately administering and enforcing” 

its Title V permitting program.52 Agency action, then, depends on a conclusion 

that the state is failing to meet its statutory requirements, a finding that fits 

comfortably within the ambit of an enforcement action.53 By contrast, section 

1313(c)(4)(B) of the CWA requires the EPA to issue new water quality 

standards “in any case where the Administrator determines that a revised or 

new standard is necessary to meet the requirements of this chapter.”54 Under 

a plain reading of this provision, the state need not do anything wrong for the 

EPA to take action. Further buttressing that conclusion is that the 

immediately preceding clause, section 1313(c)(4)(A), requires the EPA to issue 

a new standard “if a . . . water quality standard submitted by such State . . . 

for such waters is determined by the Administrator not to be consistent with 

the applicable requirements of this chapter.”55 Here, the EPA must determine

that the state’s standards do not meet the federal requirements. An action to 

correct that inadequacy could be termed an enforcement mechanism. But the 

two sections are set off by the disjunctive “or,” which suggests that section 

1313(c)(4)(B) does not require a finding of inadequacy, a feature more in line 

with rulemaking.

52 42 U.S.C. § 7661a(i)(2).

53 Moreover, the CAA subsection setting out the NOD process is titled 

“[a]dministration and enforcement.” 42 U.S.C. § 7661a(i). While the title of a statutory 

section is not part of the law itself, and so does not control, it may be used as a guide to 

determine the meaning of a provision. See, e.g., Griffin v. Steeltek, Inc., 160 F.3d 591, 594 

n.4 (10th Cir. 1998). Here, the title suggests that the NOD provision is an enforcement tool.

54 33 U.S.C. § 1313(c)(4)(B).

55 Id. § 1313(c)(4)(A) (emphasis added).

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Second, the consequences of noncompliance with the EPA’s actions differ

between these regulatory processes. After issuing a NOD, the EPA “is 

authorized to sanction the state if the deficiencies are not corrected within 

eighteen months . . . . Possible sanctions include the loss of federal highway 

funds and the application of strict emissions offset requirements for new 

sources in certain areas within the state.”56 These sanctions are essentially 

punitive in nature, a marking of enforcement. By contrast, the CWA 

authorizes no financial consequences for noncompliance. 

Finally, the procedures by which the agency actions occur are different. 

With the CAA, after making a NOD determination, the agency must “provide 

notice to the State” before imposing sanctions,57 akin to a due process 

requirement prior to punishment. With a CWA water quality standard, by 

contrast, the EPA must “promptly prepare and publish proposed regulations,” 

without any explicit requirement that it inform the affected states.58 This 

general notification process is a feature characteristically found in 

rulemaking.59 We conclude that the EPA has denied a rulemaking petition, an 

action presumptively subject to judicial review.

2.

With this presumption in place, we turn to whether section 1313(c)(4)(B) 

provides “no meaningful” or “no substantive” standards to apply.60 We hold 

56 Ohio Pub. Interest Research Grp., Inc. v. Whitman, 386 F.3d 792, 794 (6th Cir. 2004) 

(internal citation omitted) (citing 42 U.S.C. §§ 7661a(i)(1)-(2), 7509(b)(1)-(2)).

57 42 U.S.C. § 7661a(i)(1). While the statutory language could have been more explicit, 

it appears that notice to the state must occur before sanctions can be imposed. See Legal 

Envtl. Assistance Found. v. U.S. E.P.A., 400 F.3d 1278, 1280 (11th Cir. 2005) (“The first step 

in the enforcement process is the issuance of a notice of deficiency (‘NOD’) to a state.”).

58 33 U.S.C. § 1313(c)(4).

59 See, e.g., 5 U.S.C. § 553(b) (“General notice of proposed rule making shall be 

published in the Federal Register.”).

60 Webster v. Doe, 486 U.S. 592, 600 (1988) (quoting, first, Heckler v. Chaney, 470 U.S. 

821, 830 (1985)).

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that Congress has given sufficient guidance for judicial review of the agency’s 

actions under the statute, and we have subject matter jurisdiction.

a.

An important qualification: our task is not to determine whether there 

are adequate statutory standards to judge the EPA’s decision that new water 

quality standards are or are not necessary. Rather, we must decide whether 

Congress has placed sufficient guideposts around the EPA’s prerequisite

decision not to make a necessity determination.61 These two inquiries are 

related, however, and Massachusetts v. EPA provides insight as to how.

There, the Court clarified the type of permissible response the EPA could 

give after receiving a petition asking it to make a “judgment” that greenhouse 

gases “cause, or contribute to, air pollution which may reasonably be 

anticipated to endanger public health or welfare.”62 The Court held that the 

EPA was not obligated to make a judgment that such gases do or do not 

contribute to climate change if “it provides some reasonable explanation as to 

why it cannot or will not exercise its discretion to determine whether they 

do.”63 That explanation, in turn, must be “ground[ed] . . . in the statute.”64 The 

Court was not precise in specifying how tight the connection must be between 

the underlying statute and the agency decision to decline to exercise its 

discretion to make a prerequisite determination that it would or would not take 

action under that statute. It did, however, reject as inadequate several 

explanations posited by the EPA, which provide us some useful guidance. 

61 Said differently, we are looking at the EPA’s decision not to make a decision.

62 Massachusetts v. EPA, 549 U.S. 497, 532-33 (2007) (citing 42 U.S.C. § 7521(a)(1))

(brackets omitted). 63 Id. at 533.

64 Id. at 535; see also id. at 533 (“But once EPA has responded to a petition for 

rulemaking, its reasons for action or inaction must conform to the authorizing statute.”).

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First, the Court rejected the EPA’s arguments that it could decline to 

make a determination based on certain “policy judgments,” which included (1) 

the presence of “voluntary Executive Branch programs [that] already provide 

an effective response to the threat of global warming,” (2) the potential impact 

of a determination on the President’s negotiations with foreign powers, and (3) 

the fact that regulating automobiles would be “an inefficient, piecemeal 

approach” to climate change.65 Whatever the merits of these arguments, the 

Court concluded, “they ha[d] nothing to do with whether greenhouse gas 

emissions contribute to climate change.”66 Second, the Court recognized that 

scientific uncertainty could be an acceptable explanation for refusing to make 

a threshold judgment.67 If the agency wanted to rely on this explanation, 

however, it had to be explicit about why it lacked “sufficient information . . . to 

make an endangerment finding” – it could not merely “not[e] the uncertainty 

surrounding various features of climate change.”68 These examples suggest 

that the court was looking for a close and specific linkage between the decision 

not to make a threshold determination and the statutory provision setting out 

the underlying choice. The agency cannot rely on alternative policy grounds, 

even if reasonable, if those explanations do not find clear textual support. Nor 

can it resort to general claims of scientific uncertainty – if it justifies its refusal 

to make a threshold determination on that basis, it must be explicit about what 

uncertainty is present. 

Justice Scalia’s dissent comports with this understanding. He criticized 

the majority for its narrow definition of an acceptable “reasonable 

65 Id. at 533 (internal citations omitted).

66 Id.

67 See id. at 534.

68 Id.; see also id. (“If the scientific uncertainty is so profound that it precludes EPA 

from making a reasoned judgment as to whether greenhouse gases contribute to global 

warming, EPA must say so.”).

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explanation.” He focused on the distinction between the reasons the agency 

can rely on when it makes such a judgment about air pollutants, and those it 

can depend on when refusing to make a judgment – and concluded that the 

latter category was much broader:

When the Administrator makes a judgment whether to regulate 

greenhouse gases, that judgment must relate to whether they are 

air pollutants that “cause, or contribute to, air pollution which may 

reasonably be anticipated to endanger public health or welfare.” 

But the statute says nothing at all about the reasons for which the 

Administrator may defer making a judgment—the permissible 

reasons for deciding not to grapple with the issue at the present 

time. Thus, the various “policy” rationales that the Court criticizes 

are not “divorced from the statutory text,” except in the sense that 

the statutory text is silent, as texts are often silent about

permissible reasons for the exercise of agency discretion. The 

reasons EPA gave are surely considerations executive agencies 

regularly take into account (and ought to take into account) when 

deciding whether to consider entering a new field: the impact such 

entry would have on other Executive Branch programs and on 

foreign policy. There is no basis in law for the Court's imposed 

limitation.69

Justice Scalia, then, would have allowed the agency to put forward reasonable 

explanations for not making threshold determinations that are not 

inconsistent with the statute, rather than insisting upon an explicit textual 

connection. That the majority rejected this reading suggests a tighter linkage 

is required.70

69 Id. at 552 (Scalia, J., dissenting) (quoting 42 U.S.C. § 7521(a)(1)) (emphasis omitted) 

(internal citations omitted). 70 In WildEarth Guardians v. United States Environmental Protection Agency, 751 

F.3d 649 (D.C. Cir. 2014), the D.C. Circuit upheld the EPA’s denial of a rulemaking petition 

which declined to make a determination as to whether emissions from coal mines contribute 

to air pollution. Id. at 652, 656. It justified this decision on the basis of resource constraints 

that required it to make priorities about what regulatory priorities it focused on. Id. at 652-

53. The court affirmed these reasons under Massachusetts v. EPA, concluding that they were 

“consistent with the statutory objective.” Id. at 655. This decision could be read to require a 

less searching linkage than the Massachusetts v. EPA majority applied. However, even here, 

the WildEarth court was able to point to specific statutory language, see id., which sets the 

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Informed by this precedent, we conclude that the EPA’s reasons for 

declining to make a necessity determination must be rooted in the words of 

section 1313(c)(4)(B). And because the agency can only justify its decision not 

to make a necessity determination based on factors identified in the language 

of the statute, we look to those words to decide whether the statute is 

sufficiently specific to allow judicial review.

b.

We turn back to the Clean Water Act and hold that the EPA has not

overcome the statutory presumption that we have subject matter jurisdiction

to review its denial of the plaintiffs’ rulemaking petition. 

We begin with the text. The EPA is required to publish new water 

quality standards “in any case where the Administrator determines that a 

revised or new standard is necessary to meet the requirements of [chapter 26 

of title 33 of the United States Code.]”71 Those statutory requirements are 

further defined in the statute; for example, section 1313(c)(2)(A) defines the 

necessary features of a water quality standard:

Such standards shall be such as to protect the public health or 

welfare, enhance the quality of water and serve the purposes of 

this chapter. Such standards shall be established taking into 

consideration their use and value for public water supplies, 

propagation of fish and wildlife, recreational purposes, and 

agricultural, industrial, and other purposes, and also taking into 

consideration their use and value for navigation.72

decision apart from Justice Scalia’s dissent, which relied primarily on statutory silence, 

which could then be filled by the agency under Chevron v. National Resources Defense 

Council, 467 U.S. 837 (1984). Massachusetts, 549 U.S. at 552-53 (Scalia, J., dissenting).

71 33 U.S.C. § 1313(c)(4)(B). Title 33, Chapter 26 of the United States Code codifies 

the Clean Water Act. See id. § 1251 et seq. 72 Id. § 1313(c)(2)(A).

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The EPA expanded upon these requirements in regulations issued pursuant to 

the CWA.73 While broadly drawn, these requirements provide guidance for the 

types of considerations the EPA must take into account in deciding the 

necessity of regulation. And, by Massachusetts v. EPA, these are the same 

factors that must be considered when the EPA declines to make a necessity

determination. As general factors are still reviewable factors, we cannot 

conclude that there are no standards to judge the EPA’s decision to elect not to 

make a necessity determination.74

The structure of section 1313(c)(4)(B), which employs mandatory 

language, also suggests reviewability. There, Congress required regulation if 

the EPA Administrator makes a “determin[ation]” that new standards are 

necessary. In section 7521(a)(1), found reviewable by Massachusetts v. EPA,

the EPA Administrator had to regulate if she made a “judgment” that the 

emission of greenhouse gases by motor vehicles causes or contributes to air 

pollution.75 Both statutes are structured the same way: the agency has a 

mandatory obligation to take regulatory action if it makes a judgment (or 

determination) that regulation is required. This is in contrast to provisions 

73 See 40 C.F.R. § 131.2 (“A water quality standard defines the water quality goals of 

a water body, or portion thereof, by designating the use or uses to be made of the water and 

by setting criteria necessary to protect the uses. States adopt water quality standards to 

protect public health or welfare, enhance the quality of water and serve the purposes of the 

Clean Water Act (the Act). ‘Serve the purposes of the Act’ (as defined in sections 101(a)(2) 

and 303(c) of the Act) means that water quality standards should, wherever attainable, 

provide water quality for the protection and propagation of fish, shellfish and wildlife and for 

recreation in and on the water and take into consideration their use and value of public water 

supplies, propagation of fish, shellfish, and wildlife, recreation in and on the water, and 

agricultural, industrial, and other purposes including navigation.”).

74 Cf. Conservancy of Sw. Fla. v. U.S. Fish & Wildlife Serv., 677 F.3d 1073, 1082 (11th 

Cir. 2012) (“We have held before that the absence of any applicable legal standard that limits 

the agency’s discretion precludes APA review.”) (emphasis added). 

75 549 U.S. 497, 532-33 (2007) (citing 42 U.S.C. § 7521(a)(1)).

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that other courts have found unreviewable that use exclusively discretionary 

language, stating only that the agency “may” regulate, but need not do so.76 

Nor does the overall structure of the Clean Water Act call this conclusion 

into question. Both parties emphasize the fact that the CWA is a cooperative 

federalism regime. The EPA argues that the CWA is a “carefully crafted 

scheme of cooperative federalism” that would be “placed at risk” if the courts 

were “to second-guess every EPA decision not to interfere with duly 

promulgated State water quality standards.” The petitioners, in turn, focus on 

the backstop role the federal government plays in setting standards when state 

action is not enough, and argue that the Congressional intent of maintaining 

federal involvement would be frustrated if there was no judicial review. While 

both positions have merit, by the light of the required presumption of 

reviewability, we conclude that petitioners’ argument carries more weight. 

This statutory scheme is defined by federal action: as Justice White noted in a 

different context, even though the CWA is a state-federal partnership, “the 

Federal Government maintains an extraordinary level of involvement” in 

administering the act.77 

Finally, the subject matter of the CWA is also consistent with judicial 

review. Federal courts regularly hear cases addressing environmental 

regulations, including those implicating federalism issues.78 This case does 

76 See, e.g., Conservancy of Sw. Fla., 677 F.3d at 1083 (holding that the language in a 

statutory provision that stated that “[c]ritical habitat may be established for those species 

now listed as threatened or endangered” was unreviewable) (quoting 16 U.S.C. § 1532(5)(B)).

77 U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 634 (1992) (White, J., concurring in part 

and dissenting in part); see also id. (“EPA reviews state water quality standards. It retains 

authority to object to the issuance of particular permits, to monitor the state program for 

continuing compliance with federal directives, and even to enforce the terms of state permits 

when the State has not instituted enforcement proceedings.”) (internal citations omitted).

78 See generally, e.g., E.P.A. v. EME Homer City Generation, L.P., 134 S. Ct. 1584 

(2014) (federal regulation of interstate pollution); Massachusetts, 549 U.S. 497 (federal 

regulation of greenhouse gases); Rapanos v. United States, 547 U.S. 715 (2006) (federal 

regulation of navigable waters and wetlands).

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not bring the sensitive national security issues of the genus that the Supreme 

Court has held supports a determination that the actions taken are not 

judicially cognizable.79 Indeed, federal courts have reviewed or held 

reviewable EPA decisions not to propose new or revised water quality 

standards under section 1313(c)(4)(B).80 While these reviews have been 

deferential, by reviewing at all, those courts implicitly concluded that they had 

subject matter jurisdiction.81

Given the text, structure, and subject matter of section 1313(c)(4), we 

hold that the agency has not overcome the presumption in favor of 

reviewability of agency action, and that we have jurisdiction to review the 

EPA’s decision not to make a necessity determination.

III.

We now turn to whether the EPA had discretion to decide not to make a 

necessity determination. The district court concluded that the agency lacked 

such authority.82 We do not agree.

In Massachusetts v. EPA, the Court is explicit that the EPA could avoid 

making a threshold determination (in that case, that greenhouse gases do not 

contribute to climate change) “if it provides some reasonable explanation as to 

79 See, e.g., Webster v. Doe, 486 U.S. 592, 600-01 (1988).

80 See, e.g., Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 293-94 (D.C. Cir. 1981) 

(rejecting challenge which argued that EPA had unreasonably “fail[ed] to propose revised or 

new water quality standard,”); Nat’l Wildlife Fed’n v. Browner, Civ. A. No. 95-1811, 1996 WL 

601451, at *6 (D.D.C. Oct. 11, 1996) (“[S]uch a discretionary decision is not committed to the 

agency as a matter of law, and EPA’s failure to exercise its discretion under 33 U.S.C. § 

1313(c)(4)(B) could be subject to a proper challenge under the APA.”), aff’d 127 F.3d 1126 

(D.C. Cir. 1997).

81 But see Mo. Coalition for the Env’t Found. v. Jackson, 853 F. Supp. 2d 903, 910-12 

(W.D. Mo. 2012) (holding that the decision not to exercise discretionary authority under 

section 1313(c)(4)(B) is committed to agency discretion by law).

82 See Gulf Restoration Network v. Jackson, No. 12-677, 2013 WL 5328547, at *6 (E.D. 

La. Sept. 20, 2013) (reading Massachusetts v. EPA to hold that “EPA lacks the discretion to 

simply decline to make the threshold determination in response to a rulemaking petition 

even where the statutory text does not explicitly require it to do so.”).

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why it cannot or will not exercise its discretion to determine whether they 

do.”83 In dissent, Justice Scalia explicitly recognized that the majority held 

that the EPA could decline to make a prerequisite determination:

[T]he Court invents a multiple-choice question that the EPA 

Administrator must answer when a petition for rulemaking is 

filed. The Administrator must exercise his judgment in one of three 

ways: (a) by concluding that the pollutant does cause, or contribute 

to, air pollution that endangers public welfare (in which case EPA 

is required to regulate); (b) by concluding that the pollutant does 

not cause, or contribute to, air pollution that endangers public 

welfare (in which case EPA is not required to regulate); or (c) by 

“provid[ing] some reasonable explanation as to why it cannot or 

will not exercise its discretion to determine whether” greenhouse 

gases endanger public welfare, (in which case EPA is not required 

to regulate).84

We recognize that the language of the CWA and that of the CAA is not 

identical. However, the CAA section at issue in Massachusetts and the CWA 

provision at issue here have the same structure: (1) a mandatory clause 

requiring the EPA Administrator to issue regulations on a certain topic, (2) if 

she makes a specific threshold determination, using her bounded discretion, 

(3) that a substantive standard has been satisfied.85 We hold that the 

Massachusetts v. EPA “reasonable explanation” rule applies to section 

83 Massachusetts, 549 U.S. at 533. That explanation must be grounded in the statute. 

See id. at 535 (“We hold only that EPA must ground its reasons for action or inaction in the 

statute.”).

84 Id. at 550 (Scalia, J., dissenting) (emphasis omitted) (quoting id. at 533 (majority 

op.)). 85 Compare 42 U.S.C. § 7521(a)(1) (“The Administrator shall by regulation prescribe 

(and from time to time revise) in accordance with the provisions of this section, standards 

applicable to the emission of any air pollutant from any class or classes of new motor vehicles 

or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution 

which may reasonably be anticipated to endanger public health or welfare.”) (CAA), with 33 

U.S.C. § 1313(c)(4)(B) (“The Administrator shall promptly prepare and publish proposed 

regulations setting forth a revised or new water quality standard for the navigable waters 

involved . . . in any case where the Administrator determines that a revised or new standard 

is necessary to meet the requirements of this chapter.”) (CWA).

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1313(c)(4)(B), and that the EPA may decline to make a necessity determination 

if it provides an adequate explanation, grounded in the statute, for why it has 

elected not to do so.86

The district court ordered the “EPA to conduct a necessity determination 

in response to Plaintiffs’ rulemaking petition.”87 Because the agency had the 

option of declining to make a necessity determination, this order was error. 

We remand this case to the district court to decide in the first instance whether 

the EPA’s explanation for why it declined to make a necessity determination 

was legally sufficient.

In doing so, the district court must bear in mind several principles. First,

the court applies the arbitrary and capricious standard of review set out in the 

APA.88 “As applied to refusals to initiate rulemakings, this standard is ‘at the 

86 In so holding, we join other courts who have applied Massachusetts to similarly 

structured statutes and concluded that the agency is not required to make a predicate 

threshold finding. See, e.g., WildEarth Guardians v. U.S. E.P.A., 751 F.3d 649, 655 (D.C. Cir. 

2014) (holding that agency had discretion to decide when to add categories of stationary 

sources “to the list of regulated air pollutants”); Natural Res. Def. Council v. U.S. Food & 

Drug Admin., 760 F.3d 151, 191 (2d Cir. 2014) (Katzmann, C.J., dissenting) (“The statute 

construed in Massachusetts v. EPA was just like the statute at issue here – part discretionary 

(as to the agency’s ‘judgment’), and part mandatory (as to the ensuing regulation). Indeed, 

the Court recognized in its opinion that the EPA was not necessarily required to take any 

action beyond adequately responding to the citizen petition.”). But see Ctr. for Biological 

Diversity v. U.S. E.P.A., 794 F. Supp. 2d. 151, 162 (D.D.C. 2011) (holding that the structure 

of a provision of the CAA “strongly suggest that Congress intended the predicate 

endangerment finding to be a compulsory step”).

87 Gulf Restoration Network, 2013 WL 5328547, at *7.

88 See 5 U.S.C. § 706(2)(A) (requiring a reviewing court to “hold unlawful and set aside 

agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law”); see also New York v. U.S. Nuclear 

Regulatory Comm’n, 589 F.3d 551, 554 (2d Cir. 2009) (applying arbitrary and capricious 

standard to denial of rulemaking petition); EMR Network v. F.C.C., 391 F.3d 269, 272-73 

(D.C. Cir. 2004) (same). In Massachusetts v. EPA, the Court applied the arbitrary and 

capricious standard found in the CAA’s judicial review provision to the agency’s refusal to 

make a threshold determination. 549 U.S. at 534 (citing 42 U.S.C. § 7607). This provision is 

subject to the same standard of review as the APA. Catawba Cnty, N.C. v. E.P.A., 571 F.3d 

20, 41 (D.C. Cir. 2009).

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high end of the range’ of deference,”89 and “such review is ‘extremely limited’ 

and ‘highly deferential.’”90 Second, in deciding whether the EPA appropriately 

declined to make a necessity decision, the district court’s review is limited to 

determining whether the EPA has “provide[d] some reasonable explanation as 

to why it cannot or will not exercise its discretion” to make a necessity 

determination.91 That explanation must be grounded in the statute.92 

In light of this highly deferential standard of review, the agency’s burden 

is slight. That is particularly true when the statute is as broadly written as 

section 1313(c)(4)(B). Moreover, when a statute sets out competing 

considerations, agencies are generally given discretion to choose how to best 

give effect to those mandates.93 Nonetheless, we leave it to the capable hands 

of the district court to determine in the first instance the propriety of the EPA’s 

actions.

IV.

We VACATE the order of the district court requiring the EPA to make a 

necessity determination and REMAND this case for proceedings consistent 

with this opinion.

89 EMR Network, 391 F.3d at 273 (quoting Am. Horse Protection Ass’n, Inc. v. Lyng, 

812 F.2d 1, 4-5 (D.C. Cir. 1987)); see also Preminger v. Sec’y of Veterans Affairs, 632 F.3d 

1345, 1353 (Fed. Cir. 2011) (same); Int’l Union v. Chao, 361 F.3d 249, 254-55 (3d Cir. 2004) 

(same).

90 Massachusetts, 549 U.S. at 527-28 (quoting Nat’l Customs Brokers & Forwarders 

Ass’n. of Am. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989)). National Customs Brokers, 

favorably cited by Massachusetts v. EPA, and written by then-Judge Ginsburg, held that the 

court “will overturn an agency’s decision not to initiate a rulemaking only for compelling 

cause, such as plain error of law or a fundamental change in the factual premises previously 

considered by the agency.” Nat’l Customs Brokers, 883 F.2d at 96-97.

91 Massachusetts, 549 U.S. at 533. 92 Id. at 535. 93 See WildEarth Guardians v. U.S. E.P.A., 751 F.3d 649, 654-55 (D.C. Cir. 2014) 

(interpreting CAA provision to “afford[] agency officials discretion to prioritize sources that 

are the most significant threats to public health to ensure effective administration of the 

agency’s regulatory agenda”).

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