FOOD AND WATER WATCH and Friends of the Earth, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Bob Perciasepe, Acting Administrator, Defendants.
Civil Action No.: 12-1639(RC)
United States District Court, District of Columbia.
December 13, 2013
RUDOLPH CONTRERAS, United States District Judge
Because the Court will dismiss without prejudice Count VI, the only federal law claim in this case and will grant Ms. Colbert the opportunity to amend the Complaint, the Court cannot determine at this juncture whether it will elect to exercise supplemental jurisdiction over the remaining D.C. law claims. The District‘s motion to dismiss or for summary judgment with regard to the D.C. law claims will be denied without prejudice.
IV. CONCLUSION
For the reasons set forth above, the motion to dismiss or for summary judgment filed by the District of Columbia [Dkt. 9] will be granted in part and denied in part. Count VI (Fifth Amendment claim) will be dismissed without prejudice; Count XI (punitive damages claim) will be dismissed as to the District of Columbia with prejudice. The District of Columbia‘s motion will be denied without prejudice as to the D.C. law claims. Ms. Colbert will have a reasonable period of time to file an amended complaint; if she fails to timely file, the dismissal of Count VI shall be deemed with prejudice. A memorializing Order accompanies this Opinion.
Angeline Purdy, U.S. Department of Justice, Washington, DC, for Defendants.
Re Document Nos.: 35, 36
MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTIONS TO DISMISS
RUDOLPH CONTRERAS, United States District Judge
I. INTRODUCTION
The plaintiffs in this action challenge the Environmental Protection Agency‘s (“EPA“) “authorization” of pollution trading and offsets outlined in its 2010 Chesapeake Bay Total Maximum Daily Loads (“Bay TMDL“). They allege that the “authorization” of pollution trading and offsets is contrary to the Clean Water Act, and arbitrary and capricious in violation of the Administrative Procedure Act (“APA“). They also allege that the “authorization” of pollution trading and offsets violates the APA‘s requirement for Notice and Comment Rulemaking. The defendants and defendant-intervenors1 moved to dismiss
II. FACTUAL BACKGROUND
A. Statutory Background
The Clean Water Act (“CWA“) was implemented to “restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.”
The CWA specifies that “the discharge of any pollutant by any person shall be unlawful.”
There are two main ways the CWA controls the discharge of these two sources into navigable waters of the United States: through technology-based controls and through water quality standards. See, e.g., Bravos v. Green, 306 F.Supp.2d 48, 50-51 (D.D.C.2004). The main technology-based regulation implemented by the CWA is the National Pollutant Discharge Elimination System (“NPDES“). That system only regulates point sources, and does so by allowing the EPA Administrator, and/or the States, to issue permits for the discharge of a point source pollutant.
The other main way the CWA seeks to control the discharge of pollutants, point source and nonpoint source alike, is through the water quality standards (“WQS“) process outlined in Section 303 of the CWA, and codified in
Under
Though there is no NPDES analogue for nonpoint sources, the EPA can use federal grants to encourage states to address nonpoint source pollution and implement the load allocations established in a TMDL. See
Because this action arises specifically from the EPA‘s establishment of the Chesapeake Bay TMDL, it is useful to describe what, exactly, a TMDL is. A TMDL is the “total maximum daily load” of a given pollutant that can be added into a navigable water of the United States on a given day. It essentially “identifies the maximum amount of a pollutant that can be added to a body of water consistent with attaining
B. The Chesapeake Bay TMDL
The Chesapeake Bay is the largest estuary in the United States and one of the largest and most biologically productive estuaries in the world. See Chesapeake Bay Protection and Restoration, 74 Fed. Reg. 23,099, 23,099 (May 12, 2009). Unfortunately, and despite decades-long efforts by federal and state regulators, the Bay remains widely polluted, which has prevented “the attainment of existing State water quality standards and the ‘fishable and swimmable’ goals of the Clean Water Act.” See id. The main pollutants in the Bay are nitrogen, phosphorus and sediment. See Chesapeake Bay TMDL 2-7, ECF No. 36-1.4 These pollutants generally come from point sources such as municipal wastewater facilities and industrial discharge facilities; and from nonpoint sources such as agricultural lands and other runoff. See id. at 4-1.
On December 29, 2010, the EPA established the Chesapeake Bay TMDL because the State TMDLs were not achieving the water quality standards mandated by the CWA. See Chesapeake Bay TMDL ES-1. The TMDL establishes final load allocations (from both point and nonpoint sources of pollution) for the entire Chesapeake Bay and it “identifies the necessary pollution reductions of nitrogen, phosphorus, and sediment across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia and sets pollution limits necessary to meet applicable water quality standards in the Bay and its tidal rivers and embayments.” Chesapeake Bay TMDL ES-1.
Because the finality and legality of the TMDL are in dispute in this case, it is helpful to outline several of its key provisions. The Executive Summary of the TMDL explains EPA‘s process in establishing the numbers set out in the TMDL. See Chesapeake Bay TMDL ES-1-5. EPA collaborated with the Chesapeake Bay jurisdictions (Delaware, Maryland, Virginia, Pennsylvania, New York, West Virginia, and the District of Columbia) to arrive at the various loading allocations. Each State submitted its own Watershed Implementation Plan (“WIP“) that details how each State will implement the TMDL in its own State to achieve its jurisdiction-specific pollutant loading allocations. The EPA and the Bay jurisdictions went back-and-forth exchanging drafts of loading allocations, and the draft TMDL was published for a 45-day public comment period. The EPA then evaluated each State‘s WIP, along with all the public comments to arrive at the TMDL it finally published on December 29, 2010. Id. at ES-5. The WIPs “are the roadmap for how the jurisdictions, in partnership with federal and local governments, will achieve and main-
Section 10 of the TMDL, whose provisions are most in dispute in this case, outlines EPA‘s expectations for how States will keep pollution levels down despite future population growth. Section 10 begins by discussing offsets, which “[f]or purposes of the Chesapeake Bay TMDL, means ... compensating for the loading of a pollutant of concern from a point or nonpoint source with a reduction in the loading from a different source or sources, in a manner consistent with meeting WQS.” Chesapeake Bay TMDL, Appendix S-2. Section 10.1.2 notes that the “EPA expects that new or increased loadings of nitrogen, phosphorus, and sediment in the Chesapeake Bay that are not specifically accounted for in the TMDL‘s WLA or LA will be offset by loading reductions and credits generated by other sources....” Id. at 10-1 (emphasis added). The EPA also states that it “encourages and expects that the jurisdictions will generally develop and implement programs for offsetting new and increased loadings consistent with the definitions and common elements described in Appendix S....” Id. (emphasis added).
Section 10.2 covers water quality trading. The EPA has defined trading as an approach that “allows one source to meet its regulatory obligations by using pollutant reductions created by another source that has lower pollution control costs. Trading capitalizes on economies of scale and the control cost differentials among and between sources.” See United States Environmental Protection Agency, Final Water Quality Trading Policy 1, January 13, 2003 (“Final Water Quality Trading Policy“)5. With respect to water quality trading, “EPA recognizes that a number of Bay jurisdictions already are implementing water quality trading programs. EPA supports implementation of the Bay TMDL through such programs, as long as they are established and implemented in a manner consistent with the CWA, its implementing regulations and the EPA‘s Water Quality Trading Policy and 2007 Water Quality Trading Toolkit for NPDES Permit Writers.” Id. at 10-3 (emphasis added). The EPA also states that “an assumption of this TMDL is that trades may occur between sources contributing pollutant loadings to the same or different Bay segments, provided such trades do not cause or contribute to an exceedance of WQS in either receiving segment or anywhere else in the Bay watershed.” Id. (emphasis added). In addition, EPA notes that it “does not support any trading activity that would delay or weaken implementation of the Bay TMDL that is inconsistent with the assumptions and requirements of the TMDL.” Id.
Appendix S of the TMDL outlines the common elements from which the EPA “expects” the jurisdictions to develop and implement offset programs. See id. at S-1-S-2. Appendix S goes on to note that, “[t]hose common elements are not presented here as regulatory requirements. However, EPA believes that in the aggregate, they will help to ensure that offsets are achieved through reliable pollution controls and that the goals of the Bay TMDL are met....” Id. (emphasis added).
The EPA‘s authority to oversee such a comprehensive management plan stems in part from
C. Plaintiffs’ Allegations
Plaintiff Food and Water Watch is a non-profit organization that advocates for common sense policies that will result in access to safe and healthy food and clean water. Am. Compl. ¶ 6, ECF No. 29. Its “members live, work, recreate, and own property in the lands and waters of the Chesapeake Bay watershed.” Am. Compl. ¶ 7. Plaintiff Friends of the Earth, Inc., is a nonprofit environmental advocacy organization whose “mission is to defend the environment and champion a healthy and just world.” Am. Compl. ¶ 8. Its members also live near and enjoy the area surrounding the Chesapeake Bay watershed. Am. Compl. ¶ 9. Plaintiffs allege that the Chesapeake Bay TMDL reflects the EPA‘s “authorization” of offsets and water pollution trading and that such “authorization of pollution trading is unlawful, arbitrary and capricious.” Am. Compl. ¶¶ 88-96. In addition, they allege that “EPA‘s authorization of offsets for new and expanded pollutions sources is unlawful, arbitrary and capricious” and that “EPA‘s authorization of pollution trading and offsets violates notice and comment requirements under the APA.” Am. Compl. ¶¶ 101-123.
Because of this “authorization,” plaintiffs allege that their members’ ability to enjoy the Chesapeake Bay will be impaired. For instance, Food and Water Watch member Paul Stern “lives near a new point source that will be allowed to discharge if and when it identifies offsets as required by the TMDL.” Pl.‘s Opp. Mot. to Dismiss 15, Stern Decl. ¶ 6, ECF No. 39-1. Another member, Fred Tutman, alleges that “EPA‘s authorization of pollution trading has and will diminish his enjoyment of the beauty and natural resources of the Chesapeake Bay.” Pl.‘s Opp. Mot. to Dismiss 15, Tutman Decl. ¶ 5, ECF No. 39-5. Additionally, plaintiffs’ members generally “are all concerned about the creation of hot[]spots in the Bay watershed where high levels of pollution will exacerbate existing impairments.” Pl.‘s Opp. Mot. to Dismiss 16, ECF No. 39. They allege that “hotspots” are “created when one source increases its discharges into a water body because it has purchased pollution credits from another source that has allegedly decreased its discharges.” Pl.‘s Opp. Mot. to Dismiss 14. The defendants have moved to dismiss under
III. ANALYSIS
A. Legal Standards
1. Motion to Dismiss for Lack of Subject Matter Jurisdiction (12(b)(1))
Federal courts are courts of limited jurisdiction, and the law presumes
Because subject matter jurisdiction focuses on the Court‘s power to hear a claim, the Court must give the plaintiff‘s factual allegations closer scrutiny than would be required for a 12(b)(6) motion for failure to state a claim. See Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001). Thus, the court is not limited to the allegations contained in the complaint. See Wilderness Soc‘y v. Griles, 824 F.2d 4, 16 n.10 (D.C.Cir.1987). Instead, “where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court‘s resolution of disputed facts.” Herbert v. Nat‘l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992) (citing Williamson υ. Tucker, 645 F.2d 404, 413 (5th Cir.1981)).
The D.C. Circuit has explained that a motion to dismiss for lack of standing constitutes a motion under
2. Motion to Dismiss for Failure to State a Claim (12(b)(6))
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim” in order to give the defendant fair notice of the claim and the grounds upon which it rests.
Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that a plaintiff‘s factual allegations “must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if
B. Standing
The defendants first argue that the plaintiffs do not have standing to bring this case, and for that reason, the court lacks subject matter jurisdiction to hear it. In order to demonstrate Article III standing, a plaintiff must meet three requirements. First, “the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citations omitted). “Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. at 560-561. Finally, “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 561. To establish standing to sue on behalf of its members, an organization must demonstrate that “its members would have standing to sue in their own right, the interests at stake are germane to the organization‘s purpose, and neither the claim asserted nor the relief requested requires members’ participation in the lawsuit.” Consumer Fed‘n of Am. v. F.C.C., 348 F.3d 1009, 1011 (D.C.Cir.2003) (quoting Hunt v. Washington State Apple Adver. Comm‘n, 432 U.S. 333, 343 (1977)).
1. Injury
With respect to the injury, “[a] prospective plaintiff must show that it has suffered a concrete and particularized injury in order to convince the court that it is sufficiently involved in the current legal dispute to have a defined and personal stake in the outcome of the litigation.” Fla. Audubon Soc‘y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996). The Supreme Court has “repeatedly reiterated that the threatened injury must be certainly impending to constitute injury in fact, and that allegations of possible future injury are not sufficient.” Clapper v. Amnesty Intern., USA, ___ U.S. ___, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (emphasis in original, internal quotation marks omitted). The plaintiffs allege that their members are “fearful of using waters contaminated by NPDES permit holders who discharge excess pollutants pursuant to trading and offset programs.” Am. Compl. ¶¶ 7, 9. To show that their injuries are particularized, the plaintiffs cite declarations by various members whose use and enjoyment of the Chesapeake Bay will be impaired because of EPA‘s “authorization” of the offset and trading program. For instance, one member alleges that EPA‘s “authorization” of pollution trading has and will diminish his enjoyment of the beauty and natural resources of the Chesapeake Bay, because the issuance of certain NPDES permits by state agencies will lead to the creation of “hotspots” and other overpolluted areas in the Bay. See Walls Decl. ¶ 25, ECF No. 39-3. Another individual member “is concerned that increased pollution and sediments from new or increased discharges will impede his ability to enjoy” walking, hiking, and ka-
The plaintiffs’ standing problem, however, is not the lack of a particularized injury7—it is the lack of an actual or imminent one. To show that their injury is actual or imminent, the plaintiffs allege, through declarations by their members, that their use and enjoyment of the Chesapeake Bay will be affected by the creation of “hotspots” once various state agencies start granting new or modified NPDES permits to would-be polluters. Pl.‘s Opp. Mot. to Dismiss 14-16. The plaintiffs also allege that the West Virginia Department of Environmental Protection‘s (“WVDEP“) granting of a “NPDES permit to Mountain Springs Utility is one such offset that injures Plaintiffs’ members.” Id. at 18. They also allege that WVDEP has “permitted a permit modification on an offset for the Jefferson County Public Service District,” and that Maryland “began a process to certify farms for credit generation.” Id. at 19.
The creation of “hotspots”8 by the issuance of such permits is neither actual nor imminent. There is no indication that the trading and offset programs supported by—but not required or “authorized” by—the EPA will result in the creation of “hotspots” of pollution. The plaintiffs offer no support beyond their own conclusory allegations that “hotspots” have been, or necessarily will be, created by the offset and trading programs. They describe “hotspots” as areas “where increased discharges of pollutants will occur resulting in water quality that is worse than other areas in the watershed.” Id. at 14. However, all the provisions of the TMDL and the Bay jurisdictions’ WIPs specifically state that any implementation program must comply with the requirements of the CWA and the TMDL itself. To the extent trades and permits were and are granted by the various state agencies, such offsets would still have to comport with the TMDL and the CWA, and no offset or trade could be permitted if it would result in an “exceedance of WQS [water quality standard] in either receiving segment or anywhere else in the Bay watershed.” Chesapeake Bay TMDL at 10-3. Nor could any trading or offsetting occur if it would “delay or weaken implementation of the Bay TMDL, [or be] inconsistent with the assumptions and requirements of the TMDL.” Id. Nor could a permit issue “[w]hen the imposition of conditions cannot ensure compliance with the applicable wa-
Additionally, the plaintiffs’ complaints about the State agencies’ actions do not establish an actual or imminent injury. As the EPA points out in its reply brief, the WVDEP has rescinded the certificate of convenience and necessity for the Flowing Spring Wastewater Treatment Plant that the plaintiffs indicated would lead to an offset of 500 lbs/year of nitrogen downstream. See EPA‘s Reply 15-16, ECF No. 42; West Virginia Department of Environmental Protection Letter from Scott Mandirola at 2, ECF No. 39-3 (explaining the modification of a permit for the Flowing Springs Wastewater Treatment Plant); EPA‘s Reply Brief Ex. A, Public Service Commission of West Virginia Commission Order at 22, ECF No. 42-1 (ordering that “the District petition for approval of revised financing and post-project rates for its Flowing Springs Project is denied and the previously issued certificate of convenience and necessity for the Flowing Springs project is rescinded.” (emphasis added)). Therefore, the permit modification—issued in 2006, well before the creation of the TMDL—is moot because the plant whose loads it authorized will not be financed, and therefore will not be constructed.
The Mountain Springs Utility also poses no injury to the plaintiffs actually or imminently. The plaintiffs essentially note this themselves saying that the Utility will be allowed to discharge extra pollutants “once it identifies an offset.” Pl.‘s Opp. Mot. to Dismiss 19 (emphasis added). See also id. at 15 (“Paul Stern ... lives near a new point source that will be allowed to discharge if and when it identifies offsets as required by the TMDL.” (emphasis added)). See also Stern Decl. ¶ 9 (“the agency does not allow any operation or discharge of any phosphorus or nitrogen from the wastewater treatment plant under any circumstances until appropriate offsets have been obtained” (emphasis added)). The permit the plaintiffs fear will cause increased levels of pollution, therefore, is not even in effect, and it will not be until the Utility identifies an offset that comports with the requirements of the Bay TMDL, and more importantly the CWA. Thus, it is not “certainly impending” that any injurious discharges will occur if lawful offsets cannot be identified by the plant, and thus the plaintiffs may never suffer an injury. Moreover, and as set forth above, even if permitted discharges begin, there is no indication that such discharges will cause the plaintiffs any actionable injury. Each permit issuance and modification must comport with the requirements of the Bay TMDL and the CWA. See, e.g., Pl.‘s Opp. Mot. to Dismiss, WVDEP letter, ECF No. 39-1 (“the nitrogen and phosphorus loadings associated with this new discharge must be offset so that there is no net increase in loading to the Chesapeake Bay“);
2. Traceability
Even if the plaintiffs could show that their injury was actual or imminent, they would still have a serious traceability problem. The Supreme Court has stated that “[w]hen the suit is one challenging the legality of government action or inaction ... [and] a plaintiff‘s asserted injury arises from the government‘s allegedly unlawful regulation of someone else ... it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such a manner as to produce causation and permit redressability of injury.” Lujan, 504 U.S. at 561-62. See also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976) (“Art. III still requires that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.“). The D.C. Circuit has explained that “[w]hen a plaintiff‘s asserted injury arises from the Government‘s regulation of a third party not before the court, it be-comes ‘substantially more difficult to establish standing.‘” Nat‘l Wrestling Coaches Ass‘n v. Dep‘t of Educ., 366 F.3d 930, 938 (D.C.Cir.2004) (citing Lujan, 504 U.S. at 562).
The plaintiffs make two arguments on causation. First, they argue that the EPA‘s references to offsets and trades in the Bay TMDL has indirectly caused their injury “through authorization,” citing Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 440-44 (D.C.Cir.1998) (en banc) and Am. Road & Transp. Builders Ass‘n v. E.P.A., 588 F.3d 1109 (D.C.Cir.2009), for the proposition that even if the EPA itself did not directly cause the plaintiffs’ injuries, it could still satisfy the traceability requirement through authorization of third party conduct that directly caused the plaintiffs’ injuries.9 See Pl.‘s Opp. Mot. to Dismiss 20-21. Second, the plaintiffs argue that the EPA‘s references to offsets and trades in the Bay TMDL has directly caused their injury by coercing and “strong-arming” States into implementing offset and trading programs, thereby serving as a proxy for a command.10 See Pl.‘s Opp. Mot. to Dismiss 22-23. As to this point, the plaintiffs argue that “EPA essentially requires” States to adopt offsets and trading programs to comply with the Bay TMDL, and that the EPA‘s review of the States’ implementation plans “constitutes de facto approval authority” of the offset and trading programs. Id. at 9, 22 (emphasis added).
because the TMDL does not authorize or require such programs, as they already existed before the establishment of the 2010 TMDL.
Second, the plaintiffs mischaracterize the EPA‘s role in the supervision of the States’ WIPs. The EPA does have an extensive role in helping States develop their respective implementation plans, as demonstrated in particular in this case. See Chesapeake Bay TMDL ES-5. But ultimately, it is up to the States to choose how to implement those plans. See
The plaintiffs’ coercion arguments similarly ignore the practical reality of the difficult choices States face—which, again, is not the result of EPA strong-arming or coercion in the Bay TMDL document—but of the balance States must strike if they want to—in an environmentally-friendly and cost-effective way—(1) comply with the TMDL numbers allotted to them, (2) comport with the CWA, and (3) accommodate population growth, and promote agricultural and industrial growth. Offsets and trades are but one option in the States’ arsenal for achieving those goals—that the EPA encourages the use of trades and offsets does not make it the States’ only option, or a coercive one at that, in achieving water quality.
Neither does the fact that the EPA retains supervisory authority over the TMDL implementation process amount to causation through coercion. As the EPA‘s supplemental authority notes, though “there may be a fine line between collaboration and coercion, the court finds this [TMDL] framework to be more indicative of collaboration. The purpose of the revision process ... was to strengthen the WIPs to ensure attainment of water quality standards through the use of both federal and state resources and expertise ... [and] the record is replete with numerous communications that demonstrate discussion, debate, and negotiation between the federal and state government, not coercion.” See American Farm Bureau Fed‘n v. E.P.A., No. 1:11-cv-0067, 984 F.Supp.2d 289, 324, 2013 WL 5177530, at *29 (M.D.Pa. Sept. 13, 2013). Thus, there is no coercion, commanding, or “strong-arming” here, but instead, a joint federal and state effort aimed at achieving a common objective: better water quality.
The plaintiffs’ purported injury, then, is not ultimately caused by the Bay TMDL—directly or indirectly—because the Bay TMDL does not “authorize” any third party action, nor does it coerce States into implementing any programs they would not consider implementing on their own.
3. Redressability
Even if the plaintiffs could establish an injury that is traceable to the conduct of the EPA, it would still not be redressed by a decision in their favor. With respect to the redressability analysis, a court “examines whether the relief sought, assuming that the court chooses to grant it, will likely alleviate the particularized injury alleged by the plaintiff.” Fla. Audubon Soc‘y, 94 F.3d at 663-64. The plaintiffs seek a declaratory judgment from this Court “that the trading and offset provisions of the TMDL are in violation of the Clean Water Act and notice and comment procedural requirements of the APA and are null and void.” Am. Compl. ¶ 124.
The relief the plaintiffs seek cannot be redressed by an order from this Court. As set forth above, the EPA did not “authorize” offsets and trading programs, as the plaintiffs repeatedly assert. Rather, the EPA made statements in the TMDL referencing already-existing (and state-implemented) trading and offset programs. This Court could only order those references removed from the Bay TMDL—but such an order would not change the legal landscape because (1) the authority to implement offset and trading programs is with the States themselves, (2) there is no WIP approval before the Court, and (3) the pre-existing 2003 EPA Water Quality Trading Policy remains in place. There-
The plaintiffs have failed to show that they have an actual or imminent injury that is traceable to the EPA‘s conduct and redressable by an order of this Court. Therefore, the Court must dismiss this case for lack of subject matter jurisdiction.13
C. Ripeness
The defendants also argue that the plaintiffs’ claims are not ripe for adjudication. The D.C. Circuit has explained that “[r]ipeness, while often spoken of as a justiciability doctrine distinct from standing, in fact shares the constitutional requirement of standing that an injury in fact be certainly impending.” Nat‘l Treas. Employees Union v. United States, 101 F.3d 1423, 1427 (D.C.Cir.1996). See also Wyo. Outdoor Council v. United States Forest Serv., 165 F.3d 43, 48 (D.C.Cir.1999) (“Just as the constitutional standing requirement for Article III jurisdiction bars disputes not involving injury-in-fact, the ripeness requirement excludes cases not involving present injury.“). If a court establishes constitutional ripeness, it then
The ripeness requirement has been described as being designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Wyo. Outdoor, 165 F.3d at 50 (quoting Abbott Labs, 387 U.S. at 148-49). In Wyoming Outdoor, for instance, the plaintiffs challenged U.S. Forest Service regulations that had designated certain lands as suitable for oil and gas leases. Id. at 45, 50. The court found the plaintiffs’ challenges (brought under the National Environmental Policy Act) unripe for review because of the multiple-stage nature of the agency action at issue—it was when the agency actually issued a lease under the regulations, after other phases of regulation it promulgated, that the agency action would be ripe for review, and that had not yet happened in that case. See id. at 50. See also Cntr. for Biological Diversity v. Dep‘t of Interior, 563 F.3d 466, 480 (D.C.Cir.2009) (finding plaintiff‘s National Environmental Policy Act claims not ripe because the Department of Interior had only approved a leasing program and no leases had yet been issued under it).
In this case, the Court finds that none of the elements of the ripeness inquiry are satisfied. First, as set forth above, there is no injury that is certainly impending in this case to meet the constitutional ripeness requirement. Second, even if there were, the Court does not find that the plaintiffs can establish any prudential aspect of ripeness. To begin, there is no indication that the plaintiffs will suffer any hardship from the lack of judicial review at this stage in the litigation. The trading and offsets statements in the Bay TMDL impose no legal obligation on the plaintiffs—or any other actor for that matter—and therefore, there is no risk that plaintiffs will have to expend resources in order to comply with the EPA‘s “requirements.” In addition, judicial intervention at this stage would be premature because any reviewing court could benefit from further factual development. For instance, there is currently no indication that the EPA (or any state actor) is issuing any permits in violation of the provisions of the CWA. Nor is there any indication that any per-
D. Failure to State a Claim
Even if the Court were to find that the plaintiffs had standing, this case must nevertheless be dismissed for failure to state a claim under the APA. Review under the APA requires final agency action. See
Under the test articulated in Bennett v. Spear, “two conditions must be satisfied for agency action to be ‘final:’ First, the action must mark the ‘consummation’ of the agency‘s decision-making process—it must not be of a merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted). And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”
Under either line of analysis, the Court finds that there is no final agency action here. The same problems that plague the plaintiffs’ standing arguments also undermine their argument that the Bay TMDL document‘s reference to offsets and trading constitutes final agency action: such references do not impose any binding or legal obligations on any actor. The EPA‘s language in the Bay TMDL regarding offsets and trading does not legally require any conduct, but rather serves as an “informational tool.”16 Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir.2002). The Bay TMDL uses verbs such as: “EPA expects17 that new or in-
Moreover, the EPA‘s language cannot be mandatory because the CWA does not confer on the EPA the authority to command or to require the States to take specific actions, with respect to their implementation plans. The supplemental authority submitted by the defendants serves them well on this point. See American Farm Bureau, 984 F.Supp.2d at 313–14, 2013 WL 5177530, at *20 (“EPA is not authorized to establish or otherwise take over TMDL implementation plans.“). The district court in that case found that while “it would go too far to say that EPA has no role in developing state implementation plans ... EPA [does not have the] authority to enact its own implementation plan where it has determined that the state‘s effort has fallen short. EPA may not, for example, dictate to a state what measures the state must undertake to reduce pollution from a particular source.”
IV. CONCLUSION
The plaintiffs want the Bay TMDL statements about offsets and trading to be declared null and void. But the plaintiffs can only mount such a challenge if such statements constitute (1) final agency action, and (2) if plaintiffs can show they have standing to challenge them. The plaintiffs cannot do that, and as such the Court must dismiss their action for lack of subject matter jurisdiction and for failure to state a claim.
For the foregoing reasons, the defendants’ motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim are granted. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
RUDOLPH CONTRERAS
UNITED STATES DISTRICT JUDGE