Standing Matters, TMDL Version

by Foley Hoag LLP - Environmental Law

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.

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