City of Kennett v. Envtl. Prot. Agency
887 F.3d 424
8th Cir.2018Background
- The City of Kennett, Missouri operates a wastewater treatment plant that discharges into Buffalo Ditch, a stream listed as impaired for low dissolved oxygen (DO).
- Missouri developed and EPA approved a TMDL for Buffalo Ditch in 2010 that set wasteload allocations for the City far more stringent than its existing NPDES permit limits.
- The TMDL’s implementation language states Missouri may first reassess whether the 5 mg/L DO criterion is appropriate and, if changed, recalculate wasteloads; the criterion and TMDL remained unchanged for years after approval.
- The City sued EPA seeking to vacate the TMDL, alleging (1) EPA exceeded its authority, (2) EPA acted arbitrarily and capriciously, (3) EPA failed to provide required notice-and-comment, and (4) requested interim relief; the district court granted summary judgment for EPA.
- The district court concluded the City lacked standing and the claims were unripe; the City appealed.
- On appeal, the Eighth Circuit affirmed dismissal of the notice-and-comment claim and the waived interim-relief claim, but held the City had standing and the challenge to EPA approval of the TMDL was ripe, vacating and remanding the remainder for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge EPA approval of TMDL | City: Imminent compliance costs from permit limits implementing the TMDL constitute concrete, imminent injury | EPA: Injury speculative until TMDL is implemented in a future permit | Held: City has standing; compliance costs are certainly impending and redressable (delay or avoidance of burden) |
| Ripeness of challenge to EPA approval | City: Administrative record is complete; delaying review causes planning and financial hardship | EPA: Review should wait until TMDL is implemented in permits; implementation may not occur or may change | Held: Challenge is ripe—issues fit for review and withholding review imposes hardship; district court erred in dismissing on ripeness grounds |
| Notice-and-comment claim (procedural challenge) | City: EPA failed to provide required notice and comment on TMDL approval | EPA: City failed to press this claim below and offered no summary-judgment briefing on it | Held: City waived this argument by not opposing EPA’s summary-judgment basis; affirmed for EPA |
| Waiver (failure to raise arguments administratively) and merits of substantive claims | City: Substantive and procedural errors preserved in administrative record | EPA: City waived substantive challenges by not raising them during administrative process; alternatively, EPA entitled to summary judgment on merits | Held: Remanded to district court to consider waiver argument and, if necessary, merits in the first instance; appellate court declined to decide those questions now |
Key Cases Cited
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (standing requires concrete, particularized, and imminent injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing elements and proof at summary judgment)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (future injury must be certainly impending or present substantial risk)
- Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) (cities had associational standing to challenge EPA letters imposing limitations implemented by permits)
- American Farm Bureau Fed’n v. EPA, 792 F.3d 281 (3d Cir. 2015) (standing to challenge TMDL where TMDL would lead to compliance costs)
- Nat’l Parks Conservation Ass’n v. EPA, 759 F.3d 969 (8th Cir. 2014) (ripeness and redressability principles in EPA review)