Petitioners are three towns in the Catskill and Delaware watershed region of New York State (the “Towns”). For many years, they actively negotiated with and litigated against New York City (the “City”), New York State (the “State”), and the United States Environmental Protection Agency (the “EPA”) regarding the implementation of the Safe Drinking Water Act of 1974, 42 U.S.C. §§ 300f et seq. (the “SDWA”). They petition for review of two “final actions” by the EPA: (1) an April 25, 2007 letter from the EPA highlighting the State’s non-compliance with certain EPA regulations regarding administrative penalties and temporarily postponing the previously scheduled transfer to the State of primary enforcement responsibility (“primacy”) over the Catskill and Delaware watersheds until the State complies with the relevant regulations; and (2) a July 30, 2007 Filtration Avoidance Determination (“FAD”), which required the City to spend additional monies on land acquisition in the Catskill and Delaware watershed regions.
As a threshold matter, the EPA argues that, under the “case-or-controversy” requirement of Article III of the Constitution, the Towns lack standing to bring this petition because they have not suffered any “injury-in-fact,”
ie.,
an invasion of a legally protected interest that is “concrete and particularized ... and [ ] actual or imminent, not conjectural or hypothetical”.
1
Lujan v. Defenders of Wildlife,
We raise
nostra sponte
a related question about standing: assuming
ar-guendo
that petitioners’ alleged harms are cognizable as injuries-in-fact, are they likely to be redressed by a favorable court decision?
See Lujan,
Despite any injury the Coalition may allege, any relief this Court could provide is speculative. Even if we were to hold that the EPA was required by the MOA to transfer primacy to the State in May 2007, as opposed to September 2007, when they actually transferred primacy, there is no basis for us to conclude that petitioners would more likely than not be in any different position than they are now. While the State might have been required by state regulations and laws to perform a cost-benefit review of the substance of the July 2007 FAD, petitioners do not point to any evidence suggesting that the State’s analysis would have substantially differed from the EPA’s, or would remedy any injury alleged by petitioners. Indeed, the State’s intervention in this case on the side of the EPA and in support of the June 2007 FAD leads us to conclude that the State would have promulgated substantially the same determination.
* * *
For the foregoing reasons, we DENY the Towns’ petition for review and enter judgments for respondents. We take no position on whether the Coalition met its injury-in-fact requirement.
Notes
. At oral argument, the State and the City stated that they did not join in the EPA’s argument regarding the lack of an injury-in-fact.
