Standing Matters, TMDL Version

by Foley Hoag LLP - Environmental Law
Contact

Last week, in Conservation Law Foundation v. EPA, Judge Mark Wolf ruled that CLF did not have standing to challenge EPA’s approval of total maximum daily loads promulgated for certain waters in and around Cape Cod.  Given the increasing number of citizen suits involving TMDL promulgation, the decision is important.

CLF asserted two claims.  First, it alleged that EPA wrongly classified certain sources, including septic systems, storm water systems, and waste water treatment facilities as non-point sources, rather than point sources.  Second, it alleged that the TMDLs failed to take into account the need for additional stringency due to the impacts of climate change.

With respect to the first claim, Judge Wolf concluded that the affidavits CLF submitted from two CLF members established injury in fact under Lujan v. Defenders of Wildlife.  However, he found that CLF had not established that the relief sought by CLF would redress its alleged injuries.  Both affiants stated that they believed that reclassifying non-point sources as point sources would reduce nitrogen pollution.  However, as the Court noted, these are expert opinions.  Since the affiants weren’t qualified as experts, the Court disregarded those opinions.  The Court also noted that:

the reclassification of the Sources from the [non-point sources] to [point sources] would not immediately change the amount of nitrogen authorized to be emitted into the embayments.

In other words, CLF wasn’t challenging the actual TMDL, but only how it was allocated.  That being the case, CLF had to present affirmative evidence at the summary judgment stage that EPA’s classifications would affect the ability to meet the TMDL.  CLF failed to present such evidence.  Presumably, point sources affected by the TMDL probably would have standing to challenge the classifications, because a failure to include all point sources within the TMDL results in a greater share of the burden of complying with the TMDL falling on those entities that are classified as point sources.

With respect to the climate change allegations, the Court found that CLF had not established injury in fact:

The … affidavits in this case do not assert any connection between the declarants’ injuries and the EPA’s alleged failure to consider the effects of climate change when approving the TMDLs. [T]here is no information in the …  affidavits concerning how their interests in the waters “will be lessened by” by the EPA’s alleged failures with respect to climate change.

The Court also found that, even if CLF had established injury in fact, it had again failed to establish redressability.  The only relevant information in the record was an EPA statement to the effect that the TMDL program will be affected by climate change, because rising water temperatures will cause more water bodies to fail to meet water quality standards.  As the Court noted:

The fact that, in general, more TMDLs may be required and adjustments to pollution controls may need to be made in some areas as a result of climate change does not constitute evidence that the EPA’s inclusion of the effects of climate change in the TMDLs at issue in this case would likely alter the pollution levels that are affecting plaintiffs’ interests in the particular embayments on Cape Cod involved in the instant case.

Given the increasing number of citizen suits involving TMDL’s, this decision could have significant implications.  Here are a few:

  • First, don’t read too much into this.  Suits alleging failure to promulgate TMDLs or suits claiming the TMDLs are not sufficiently stringent (now, as opposed to in some speculative, climate-impacted future), might not be affected.
  • Second, even on standing, expert opinions may be required, particularly on redressibility issues.
  • Third, how sources are categorized may not have sufficient impact on citizen plaintiffs to justify standing, but the sources themselves would probably have standing to challenge the agencies on classification issues.

 

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.

© Foley Hoag LLP - Environmental Law | Attorney Advertising

Written by:

Foley Hoag LLP - Environmental Law
Contact
more
less

Foley Hoag LLP - Environmental Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!