City of Dover, New Hampshire v. United States Environmental Protection Agency
36 F. Supp. 3d 103
D.D.C.2014Background
- Three New Hampshire cities (plaintiffs) operate wastewater treatment plants discharging into the Great Bay Estuary and sued EPA under the APA/Clean Water Act citizen-suit provision after EPA approved New Hampshire’s 303(d) impaired-waters lists (2009/2011).
- Plaintiffs contend EPA relied on a 2009 NHDES report proposing numeric nutrient criteria (translation of state narrative standards) and that listing Great Bay as impaired will force EPA to impose restrictive nitrogen limits in plaintiffs’ NPDES permits, limit expansions, and lead to a burdensome stormwater permit.
- Plaintiffs amended their complaint to assert APA claims after the court previously dismissed their initial complaint for failure to state a claim; EPA moved to dismiss for lack of subject-matter jurisdiction (standing and ripeness).
- The court accepted plaintiffs’ factual allegations for purposes of the motion-to-dismiss standard but reviewed jurisdictional facts closely and considered extrinsic materials where appropriate.
- The court concluded plaintiffs’ alleged injuries were speculative or too attenuated from EPA’s 303(d) listing decisions: (1) no final permits with the challenged limits have issued to plaintiffs; (2) permitting limits depend on a separate reasonable-potential analysis and/or future TMDL process; (3) section 122.4(i) (new sources) does not bar plaintiffs’ expansions; and (4) no protected liberty/property interest was shown from the listing process.
- The court dismissed the amended complaint for lack of Article III standing and for lack of ripeness, holding plaintiffs must await concrete permit- or TMDL-related agency actions (and pursue available administrative/appellate remedies) before judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge EPA approval of 303(d) listing | Listing caused or will cause immediate, restrictive NPDES permit limits and other regulatory harms | Listing did not cause present injury; harms are speculative and depend on independent permitting/TMDL steps | No standing — injury speculative or too attenuated from 303(d) approval |
| Causation between 303(d) listing and permit limits | 303(d) listing effectively establishes pollutant excursions and forces permit limits | Permits require an independent reasonable-potential determination; 303(d) listing is not dispositive | No causal link; permitting decisions are separate and may occur regardless of listing |
| Standing based on expansion/new-source restriction (40 C.F.R. §122.4(i)) | Listing precludes expansions by treating expansions as "new sources/dischargers" | §122.4(i) applies only to true new sources/dischargers; plaintiffs’ expansions are not new sources/dischargers and are speculative | No standing — regulation misread and expansion plans too hypothetical |
| Ripeness of APA challenge to 303(d) listing | Review is fit; plaintiffs face hardship now from regulatory cascade | No present hardship; concrete harms depend on future permits/TMDLs/final stormwater permit and available review routes | Not ripe — withholding review causes no present hardship; plaintiffs must await and challenge concrete agency decisions |
Key Cases Cited
- Scheuer v. Rhodes, 416 U.S. 232 (1974) (pleadings are construed favorably on motion to dismiss)
- Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coord. Unit, 507 U.S. 163 (1993) (pleading standard principles)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing elements and "injury in fact" requirements)
- Whitmore v. Arkansas, 495 U.S. 149 (1990) (threatened injury must be certainly impending)
- Warth v. Seldin, 422 U.S. 490 (1975) (standing as threshold and construing complaint for jurisdictional questions)
- Allen v. Wright, 468 U.S. 737 (1984) (attenuated causation defeats standing)
- Board of Regents v. Roth, 408 U.S. 564 (1972) (protected property interest requirement for due process claims)
- Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726 (1998) (ripeness factors: fitness and hardship)
- General Elec. Co. v. Jackson, 610 F.3d 110 (D.C. Cir. 2010) (procedural-due-process standing requires deprivation of protected interest)