An Update On Standing — Some Specifics Really Are Required

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Last week, the 9th Circuit Court of Appeals affirmed EPA’s approval of Nevada’s State Implementation Plan for regional haze against a challenge by WildEarth Guardians. The decision isn’t earthshaking.  However, because it found that WildEarth Guardians did not have standing to challenge EPA’s reasonable further progress determination for measuring visibility improvements, but did have standing to challenge EPA’s determination regarding the Best Available Retrofit Technology for the Reid Gardner Generating Station in northeast Nevada, it provides a handy way to compare and contrast what must be alleged by citizen groups to establish standing.

First, the reasonable further progress determination. WildEarth Guardians relied on a declaration by one member, Veronica Egan. Ms. Egan proved too thin a reed for this challenge. Her declaration stated that she observed pollution from the North Valmy Generating Station and that she therefore “will continue to observe offensive amount of air pollution.” While the court assumed that this might establish injury in fact, it was not sufficient to demonstrate either traceability or redressability.

But Egan fails to show that either her aesthetic displeasure or her health concerns are causally linked to the EPA’s approval of Nevada’s worst days reasonable progress goals. … Nothing in the record suggests that a reduction in emissions from North Valmy would ameliorate Egan’s claimed aesthetic injury. … In short, Egan does not sufficiently link her claimed injury near North Valmy with the EPA’s approval of Nevada’s goals.

End of story.

WildEarth Guardians and Ms. Egan did considerably better in making concrete allegations regarding Reid Gardner. Here, she declared that “she regularly visits Class I Federal areas where visibility is affected by pollution originating in Nevada.” She also stated that Nevada itself acknowledged that Reid Gardner causes haze in Class 1 Federal areas. Thus, she not only established injury in fact, she established that the visual impairment was traceable to EPA’s approval of the BART determination for Reid Gardner, given that sulfur dioxide emissions from the plant cause regional haze. Because rejection of the BART determination would result in more stringent SO2 limits, redressability was also established. (Of course, the Court concluded that EPA’s BART determination was not arbitrary and capricious, but you can’t win them all.)

In short, in establishing standing, a little specificity goes a long way.

 

Published In: Civil Procedure Updates, Constitutional Law Updates, Energy & Utilities Updates, Environmental Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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