266 F. Supp. 3d 174
D.D.C.2017Background
- Six Maryland watershed-focused environmental nonprofits challenged EPA approval of Maryland’s 2012 Integrated Report, claiming EPA unlawfully approved reclassification (139 listings moved from Category 5 to 4a) without adequate notice, explanation, or public participation under the APA and CWA.
- Maryland drafted the 2012 Report after the Chesapeake Bay TMDL (2010) treated certain local listings as addressed by the Bay TMDL; Maryland held public meetings in March and April 2012 and submitted the 2012 Report in July 2012; EPA approved it November 9, 2012.
- Maryland’s 2014 Integrated Report (submitted April 2015, approved October 16, 2015) incorporated the same reclassifications and rationale regarding the 139 listings and the 53 watershed segments in Maryland.
- Plaintiffs filed suit on March 8, 2016 (five months after EPA’s approval of the 2014 Report), alleging arbitrary and capricious agency action and violations of Clean Water Act public-participation requirements.
- EPA moved to dismiss for mootness, lack of standing, and failure to state a claim; the district court concluded the 2014 Report superseded the 2012 Report and dismissed the case as moot, rejecting the plaintiffs’ attempt to invoke the capable-of-repetition-yet-evading-review exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of challenge to EPA approval of Maryland’s 2012 Integrated Report | Challenge remains live because EPA simply reapproved the same identifications in 2014; 2012 action not superseded | 2014 Integrated Report replaced/superseded the 2012 Report, so there is no operative agency action to remedy | Court: 2014 Report superseded the 2012 Report; claims challenging 2012 approval are moot |
| Applicability of "capable of repetition, yet evading review" exception | Even if technically moot, the short-lived nature of approved Integrated Reports makes the dispute evading review | The time between approvals (2012 to 2014) exceeded two years; plaintiffs delayed suit and thus cannot claim evasion | Court: Exception does not apply because ~35 months elapsed; plaintiffs failed to show evasion |
| Whether corrective/curative actions in 2014 cured alleged procedural defects in 2012 (alternative EPA argument) | Plaintiffs argued procedural defects persisted because rationale was unchanged | EPA argued public-participation defects were cured in 2014 | Court did not reach merits of this argument because it dismissed as moot |
| Standing / Failure to state an APA claim (arbitrary and capricious) | Plaintiffs asserted concrete organizational injuries from improper delisting and inadequate participation | EPA argued lack of standing and that plaintiffs failed to state a viable APA claim | Court did not resolve standing or merits after finding mootness |
Key Cases Cited
- Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66 (D.C. Cir. 2011) (challenge to superseded agency Record of Decision is moot)
- Burlington N. R.R. Co. v. Surface Transp. Bd., 75 F.3d 685 (D.C. Cir. 1996) (intervening events that preclude effective relief can moot a case)
- Del Monte Fresh Produce Co. v. United States, 570 F.3d 316 (D.C. Cir. 2009) (agency actions under two years’ duration ordinarily evade review)
- Armstrong v. FAA, 515 F.3d 1294 (D.C. Cir. 2008) (litigant’s delay defeats claims that action evades review)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (federal courts are courts of limited jurisdiction)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (plaintiff bears burden to establish subject-matter jurisdiction)