Sanitary Board of the City of Charleston, West Virginia v. McCarthy
2:16-cv-03060
| S.D.W. Va | Mar 29, 2018Background
- Sanitary Board of Charleston submitted a site-specific water-effect-ratio (WER) for copper (5.62) to WVDEP and EPA so its NPDES permit could incorporate a higher copper effluent limit reflecting local water conditions.
- EPA rejected the proposed Copper Standard as inconsistent with the Clean Water Act; the Sanitary Board sued alleging the rejection was arbitrary, capricious, contrary to law, and procedurally defective.
- WVDEP later reissued the Sanitary Board a 2017 NPDES permit that did not include a copper effluent limit (instead required quarterly copper monitoring) because EPA had not approved the WER and WVDEP’s reasonable potential analysis found no need for a numeric copper limit.
- Defendants (EPA) moved for summary judgment arguing the reissued 2017 Permit eliminated any live controversy and thus the case is moot; Sanitary Board opposed on several grounds (monitoring burden, risk of future limits, paid costs, injury capable of repetition).
- The district court held the Sanitary Board’s claims were moot: alleged injuries were speculative or not fairly traceable to EPA’s conduct, and the “capable of repetition, yet evading review” exception did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff has an Article III live case or controversy after reissued permit | EPA’s rejection causes ongoing injury (monitoring burden, threat of future copper limit, paid for WER) | 2017 permit removed copper limit and requires only monitoring; no concrete, imminent injury exists | Moot — no Article III jurisdiction |
| Whether monitoring requirement constitutes cognizable injury fairly traceable to EPA | Monitoring is burdensome and stems from EPA’s rejection of WER | Monitoring is routine, not shown to be caused by EPA, and plaintiff offered no specific evidence of concrete harm | Monitoring alone is not a sufficient, traceable injury |
| Whether heightened risk of future enforcement establishes standing | Risk that a single elevated sample could trigger limits; WER rejection increases future risk | Risk is speculative and not certainly impending; plaintiff must show concrete probability | Risk too speculative to constitute injury in fact |
| Whether case fits the “capable of repetition, yet evading review” exception to mootness | WER approval process takes years; future rejections would be too short to litigate before penalties apply | No reasonable expectation of recurrence and long permit term gives time for review; plaintiff failed burden to show exception applies | Exception does not apply; case still moot |
Key Cases Cited
- Powell v. McCormack, 395 U.S. 486 (standing requires a legally cognizable interest)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (injury in fact must be concrete and imminent)
- City of Los Angeles v. Lyons, 461 U.S. 95 (plaintiff must show real and immediate threat of injury)
- Already, LLC v. Nike, 568 U.S. 85 (mootness occurs when issues are no longer live)
- Porter v. Clarke, 852 F.3d 358 (mootness and continuation of case-or-controversy)
- West Virginia Highlands Conservancy v. Huffman, 625 F.3d 159 (relation of WER and NPDES permits)