Not Everybody Can Sue the EPA

Originally published by Charles Sartain.

That’s a good thing if you like what the EPA is doing, not so much if you are its sworn enemy. In Center for Biological Diversity v. US EPA the plaintiff did not have standing so sue the EPA over the granting of a water discharge permit. The court dismissed the suit and would not resolve the substantive issues.

The basis of the suit

The Clean Water Act prohibits discharge of pollutants from any point source without a permit from the EPA. The EPA issued a general permit for various oil and gas operations in the central and western portions of the Gulf of Mexico. The CBD and other organizations petitioned the Fifth Circuit to review the grant of the permit, alleging that it violated the National Environmental Policy Act and the Clean Water Act in several ways.

Standing, the right to sue

Standing for an organization to sue is determined by the “associational standing doctrine”: In a three-part test,

• An organization’s member must have an injury in fact,
• that is fairly traceable to the conduct of the defendant, and
• that is likely to be redressed by a favorable judicial decision.

The question

Could an individual member of CBD show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent? Here, they could not.

An injury to the environment is insufficient to establish injury. Sometimes the member’s aesthetic, recreational and scientific interests provide that link. The injuries asserted by the petitioners in this case depend on four conditions:

• discharge of pollutants in the Gulf,
• discharges in areas where the petitioner’s members have interests,
• discharges are present at a time relevant to petitioner’s members’ interests,
• discharges negatively affect petitioner’s members’ interests.

Was there a geographic nexus?

An interest in an area roughly in the vicinity of a project site is not sufficient. The petitioner’s members must plan to make use of specific sites where environmental effects would allegedly be felt. While one member claimed to plan to visit specific locations, the permit authorizes discharges in a very generalized area. The members’ affidavits did not provide nearly enough information to infer with any degree of certainty that any discharges would geographically overlap with their interests.

Was there a temporal nexus?

An affiant stated that he intended to take boat trips to platforms operating under the permit. But there was no evidence that his boat trips would coincide with timing of discharges.

You can’t commit harikari and then sue the sword maker

Critical to an aesthetic injury is whether an experience was actually offensive to the plaintiff. One affiant said he intended to go looking for oil spills. That doesn’t count. Standing cannot be conferred by a self-inflicted injury.

Is the injury traceable?

The EPA prepared an allegedly inadequate Environmental Impact Statement. The CBD did show that if the EPA had properly prepared and considered an EIS before implementing its plans it might have not issued the permit. But that showing alone was not sufficient. The plaintiff must show that the injury is fairly traceable to the challenged action of the government and not the result of independent action of third parties not before the court. The affidavits supporting the claim had conclusory assertions, which are not evidence.

Musical interludes

A Cajun fiddler for a Louisiana case: D’Jalma Garnier, brother of Bob Dylan’s bassist, grandson of the leader of N. O.’s Camelia Brass Band, born in … Minnesota?

And RIP Ginger Baker.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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