As citizen scientists and environmental non-governmental organizations (NGOs) have stepped up to fill what they have called an enforcement gap since President Trump took office, the NGO playbook has become more complex and creative than perhaps ever before. A recent Fourth Circuit stay is another example of litigation against governments as a routine playbook strategy likely to continue on the horizon, in addition to the primarily used litigation tactics against private parties to further NGO interests in the past.

Ohio Valley Environmental Coalition (OVEC) v. Pruitt illustrates when and how NGOs attempt to use litigation against the federal EPA to force regulation. OVEC tested the limits of the “constructive submission” doctrine, which applies when a state disregards its obligations to take action required by federal law. In OVEC, the Fourth Circuit found “constructive submission” factually inapplicable because West Virginia – the involved state – had a credible plan in place to develop the standards it was required to issue under the CWA. OVEC demonstrates that delay alone may not be enough to require the EPA to act, where both state and federal regulators agree that the state has a plan to fulfill its duties under the CWA.

Into the details of the case: Under the Clean Water Act (CWA), states are required to develop Total Maximum Daily Loads (TMDLs) for waters that are considered “impaired” – meaning not suitable for their designated uses. In 2012, the West Virginia Legislature enacted a bill requiring state regulators to create a new methodology for developing certain TMDLs. However, by the time the plaintiffs filed suit in 2015, West Virginia had not yet adopted a new methodology. Further, the state projected that it would not complete the process of developing new TMDLs until 2025.

The environmental groups sued in federal district court, claiming that because West Virginia has failed to develop the TMDLs, the EPA was required to issue its own water quality standards to fill the gap. Ordinarily, the EPA is only authorized to adopt its own TMDLs when it finds that state-submitted limits fail to meet CWA requirements. However, the district court applied doctrine of “constructive submission,” which treats a state’s failure to submit TMDLs as triggering the EPA’s nondiscretionary duty under the CWA to develop its own TMDLs for that state. The district court cited decisions by the Seventh, Ninth, and Tenth Circuits to hold that “the majority of courts” faced with state failure to submit TMDLs have recognized the doctrine of constructive submission, requiring the EPA to fill the gap.

Last month, the Fourth Circuit overturned the district court’s decision and rejected the applicability of the “constructive submission” doctrine because West Virginia had submitted TMDLs for EPA approval and “has a credible plan in place to produce others.” West Virginia, it explained, has now executed a Memorandum of Agreement with EPA that requires the state to complete all TMDLs at issue in the case by June 30, 2026. Because the EPA and the state agreed that West Virginia has a “credible plan” to complete TMDLs, the Fourth Circuit held that the EPA was not required to develop its own TMDLs for the state. The decision suggests a very high bar for finding that a state’s delay in establishing TMDLs amounts to “constructive submission” and reflects the Fourth Circuit’s reluctance toward forcing the EPA to step in and fill state roles under the CWA.

For more on citizen science, the NGO playbook, and developing creative defense strategies, contact any member of the Schiff Hardin Environmental Group.