945 F. Supp. 2d 39
D.D.C.2013Background
- Plaintiff National Wildlife Federation challenges 40 C.F.R. § 124.55(b) under the Administrative Procedure Act, alleging it cannot be applied to add more stringent state-certification conditions after a permit issues.
- EPA may issue a Vessel General Permit (VGP) only after state certifications (or waivers) are issued; states have a sixty-day deadline to act on certification, with deviation allowed under the rule.
- A 2012–2013 consent decree required the EPA to replace the 2008 VGP with a new one, which was drafted in 2011 and issued as final in 2013; New York state certification was issued September 26, 2012 with allegedly more stringent conditions.
- Plaintiff filed suit in New York challenging New York’s certification; separately, this federal suit seeks relief arguing § 124.55(b) violates the Clean Water Act and that the EPA must incorporate stricter conditions upon certification.
- The court dismissed the case for lack of final agency action and ripeness, finding no applicable final decision by the EPA and that there is no discrete action to review; the New York action had not been resolved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is a final agency action subject to review | NWF argues EPA’s potential future application of § 124.55(b) constitutes final action. | EPA has not yet taken final action applying § 124.55(b) to the VGP. | No final agency action; the action is not final. |
| Whether the as-applied challenge is ripe and properly brought in district court | Challenge to EPA’s post-permit application of § 124.55(b) is ripe in district court. | As-applied challenge requires final agency action and proper timing; not ripe here. | Not ripe; no final action and potential future states do not establish ripeness. |
| Whether the plaintiff has standing to bring an as-applied challenge | Plaintiff seeks review of EPA’s anticipated application to the VGP. | Standing requires a concrete final action; none exists. | Lack of final agency action defeats standing for an as-applied challenge. |
| Whether an exception to finality applies to allow review | Coca-Cola exception could permit review of interstitial agency rulings. | Exception is narrow and inapplicable where agency action has not occurred. | No applicable exception; no reviewable action. |
Key Cases Cited
- Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 112 F.3d 1283 (5th Cir. 1997) (finality and final agency action in APA challenges)
- Bennett v. Spear, 520 U.S. 154 (Supreme Court 1997) (finality requirement for agency action)
- Coca-Cola Co. v. Federal Trade Commission, 475 F.2d 299 (5th Cir. 1973) (narrow exception to finality for excess- jurisdiction actions)
- Leedom v. Kyne, 358 U.S. 184 (Supreme Court 1958) (narrow finality exception; not applicable here)
- American Petroleum Inst. v. EPA, 683 F.3d 382 (D.C. Cir. 2012) (ripeness and agency action in regulatory review)
- Reliable Automatic Sprinkler Co., Inc. v. Consumer Prod. Safety Comm’n, 324 F.3d 726 (D.C. Cir. 2003) (practical consequences vs. legal consequences in final action)
- Cellular Telecommunications & Internet Ass’n v. FCC, 330 F.3d 502 (D.C. Cir. 2003) (no as-applied challenge without agency enforcement action)