5 F. Supp. 3d 62
D.D.C.2013Background
- Plaintiffs (Food and Water Watch and Friends of the Earth) challenge EPA’s 2010 Chesapeake Bay TMDL, alleging it "authorizes" water-quality trading and offsets in violation of the Clean Water Act (CWA) and APA (including notice-and-comment).
- The Bay TMDL sets load allocations (WLAs and LAs) for nitrogen, phosphorus, and sediment across seven jurisdictions and includes Section 10 and Appendix S discussing offsets and trading in permissive terms ("expects", "encourages", "recognizes").
- Plaintiffs claim EPA’s language will lead to permit approvals, creation of local "hotspots," and aesthetic/recreational injury to members; they cite particular state permitting actions as examples.
- Defendants and intervenors moved to dismiss for lack of subject-matter jurisdiction (no standing, ripeness) and for failure to state a claim (no final agency action).
- District Court held the trading/offset language is nonbinding guidance, that plaintiffs’ alleged injuries are speculative and not certainly impending, that causation and redressability fail, and that the TMDL’s trading/offset references are not final agency action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — injury in fact | Members will be harmed (aesthetic/recreational) by future permits/trades creating pollution "hotspots" | Alleged harms are speculative; no imminent, concrete injury because trades/permits must comply with CWA/TMDL before any discharge | No injury that is actual or imminent; standing fails |
| Standing — traceability/redressability | EPA "authorized" trades in the TMDL, so EPA action sets in motion state permits causing injury; vacatur of TMDL trading language would redress harms | TMDL does not authorize or require trades; trading predated TMDL and states control implementation; vacating language would not prevent state actions | Plaintiffs cannot trace injury to EPA or obtain redress from vacating TMDL language |
| Ripeness | Pre-enforcement review appropriate because TMDL language pressures states to act | Challenges are premature because no final permitting decisions or concrete effects have occurred; further factual development is needed | Claims are not ripe; prudential ripeness weighs against review |
| Final agency action (APA) | TMDL statements about offsets/trading are final, binding actions subject to APA review | The TMDL’s offset/trading language is hortatory/policy guidance ("expects", "encourages"); no new legal obligations imposed; implementation by states is required | Not final agency action under Bennett v. Spear; dismissal for failure to state a claim |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete, particularized, and imminent injury)
- Bennett v. Spear, 520 U.S. 154 (two-part test for final agency action)
- Clapper v. Amnesty Int’l USA, 568 U.S. 398 (threatened injury must be certainly impending)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (aesthetic/recreational injury can confer standing)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility pleading standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (complaint must state plausible claim)
- Center for Auto Safety v. NHTSA, 452 F.3d 798 (agency guidance that leaves agency free to exercise discretion is non-final)
- Sierra Club v. Morton, 405 U.S. 727 (use and enjoyment allegations for environmental standing)
- Pronsolino v. Nastri, 291 F.3d 1123 (TMDL implementation and informational nature of some agency actions)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (federal courts are courts of limited jurisdiction)