American Forest & Paper Ass'n v. U.S. E.P.A., 97-9506
| Decision Date | 01 September 1998 |
| Docket Number | No. 97-9506,97-9506 |
| Parties | 29 Envtl. L. Rep. 20,132, 98 CJ C.A.R. 4537 AMERICAN FOREST & PAPER ASSOCIATION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Jane N. Saginaw, Regional Administrator, United States Environmental Protection Agency, Region 6, Respondents, American Petroleum Institute, American Wood Preservers Institute, Chamber of Commerce of the United States Independent Petroleum Association of America, Michigan Manufacturers Association, National Association of Home Builders, National Association of Manufacturers, the State Chamber, Oklahoma's Association of Business and Industry, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Russell S. Frye, of Chadbourne & Parke, LLP, Washington, DC (Erin Buckley Bradley, Chadbourne & Parke, LLP, Cynthia H. Evans of American Forest & Paper Association, Inc., Washington, DC, with him on the briefs), for Petitioner.
Alan D. Greenberg, Attorney, U.S. Dept. of Justice, Environment & Natural Resources Div., Denver, CO (Lois J. Schiffer, Asst. Atty. Gen., U.S. Department of Justice, Environment & Natural Resources Div., Denver, CO, and Steven Neugeboren, Thomas S. Marshall, U.S. Environmental Protection Agency, Washington, DC, with him on the brief), for Respondents.
Scott M. DuBoff, John W. Heiderscheit III, Wright & Talisman, P.C., Washington, DC, Counsel for Amici Curiae, Alice Crowe, Washington, DC, on the brief for American Petroleum Institute, Robin S. Conrad, National Chamber Litigation Center, Inc., Washington, DC, on the brief for Chamber of Commerce of the United States, David M. Sweet, Washington, DC, on the brief for Independent Petroleum Association of America, J. Walker Henry, Clark, Hill P.L.C, Detroit, MI, on the brief for Michigan Manufacturers Association, Alec Ugol, Washington, DC, on the brief for National Association of Home Builders, Jan Amundson, Washington, DC, on the brief for National Association of Manufacturers, James R. Barnett, Kerr, Irvine, Rhodes & Ables, Oklahoma City, OK, on the brief for The State Chamber, Oklahoma's Association of Business and Industry, submitted an Amici Curiae brief in support of Petitioner.
Before SEYMOUR, Chief Judge, McWILLIAMS and MURPHY, Circuit Judges.
ON PETITION FOR REVIEW OF FINAL AGENCY ACTION BY THE
ENVIRONMENTAL PROTECTION AGENCY
American Forest and Paper Association (Association) brought this action challenging the Environmental Protection Agency's (EPA) approval of the Oklahoma Pollutant Discharge Elimination System permit program. The Association specifically challenges that portion of the permit program relating to the consultation procedures between the State of Oklahoma and the United States Fish and Wildlife Service to ensure compliance with the Endangered Species Act (ESA). Because this court concludes the Association lacks constitutional standing, we dismiss their claims.
Congress passed the Clean Water Act (Act) in an effort "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In furtherance of these goals, § 301(a) of the Act makes it unlawful to discharge any pollutant into navigable waters unless specifically authorized by the Act. See id. § 1311(a). Section 402 of the Act establishes the National Pollutant Discharge Elimination System (NPDES). See id. § 1342. Under the NPDES, the Administrator of the EPA has authority to issue permits for the discharge of pollutants. See id. § 1342(a).
Although Congress granted the EPA initial authority to issue NPDES permits, it intended that the states would eventually assume primary responsibility over the NPDES program. See id. § 1251(b). Section 402(b) of the Act thus provides that each state may establish and administer its own permit program, subject to approval and oversight by the EPA. See id. § 1342(b). So long as a proposed state permit program satisfies several enumerated conditions, the EPA must approve the program. See id. The EPA retains oversight authority over state permit programs and may withdraw its approval of a particular program if it determines the state is not complying with the Act. See id. § 1342(c)(3). The EPA further retains oversight authority over individual permits issued by a state and may veto a proposed permit if it determines the permit would violate the Act. See id. § 1342(d).
In 1994, the state of Oklahoma sought approval from the EPA to establish and administer its own NPDES permit program. The EPA and the Oklahoma Department of Environmental Quality (ODEQ) agreed to a procedure whereby ODEQ and the Fish and Wildlife Service (Service) would work together on permit applications to ensure compliance with the Endangered Species Act (ESA). This consultation procedure is reflected in a Memorandum of Understanding (MOU) and a Memorandum of Agreement, 1 both of which are incorporated by reference into the final rule approving Oklahoma's permit program. See 61 Fed.Reg. 65,047, 65,053 (1996).
The MOU was entered into between ODEQ and the Service in March 1995. See Oklahoma Dep't of Envtl. Quality & U.S. Fish and Wildlife Serv., Memorandum of Understanding (1995) [hereinafter "MOU"]. Under the MOU, the Service agreed to provide to ODEQ on an annual basis various information relating to "federally listed threatened, endangered and proposed [species], as well as designated or proposed critical habitat, that occur in Oklahoma and that are dependent upon aquatic habitats for their existence." Id. at 1. ODEQ agreed to use the information provided by the Service to identify "sensitive waters" in the state. Id.
The MOU further provides that "[w]hen a new NPDES permit application, or an application for a modification of an existing permit, is received by [O]DEQ for a sensitive water," ODEQ will submit various specified information to the Service. 2 Id. Within thirty days after submitting the information to the Service, ODEQ must inform the Service of its initial determination as to "whether the proposed permit 'is not likely to adversely affect' or 'may affect' a federally-listed species, designated critical habitat, jeopardize a proposed species, or adversely modify or destroy a proposed critical habitat." Id. If the Service disagrees with ODEQ's initial determination, it must inform ODEQ of its nonconcurrence. See id. If either the Service or ODEQ determines that a proposed permit is likely to have an adverse effect on a species or habitat, then ODEQ and the Service will "work together to modify the permit application to avoid the adverse effect." Id. at 2. At this point in the consultation process, additional information may be requested of the permit applicant. See id.
If the Service and ODEQ are unable to reach agreement on modifications to the permit application to avoid the adverse effect on species or habitat, the MOU requires ODEQ to notify the EPA. See id. The EPA may make a formal objection to the permit application if either the Service or ODEQ determines that the proposed action "may adversely affect listed species or critical habitat." Id. The EPA is required to formally object to the permit application and assume permitting authority if the Service determines the proposed action is "likely to jeopardize the continued existence of a listed or proposed species or destroy or adversely modify designated or proposed critical habitat." Id. If the EPA assumes permitting authority, it must then consult with the Service, in accordance with § 7(a) of the ESA, 3 to ensure compliance with the ESA. See id.
With respect to renewals of existing permits, 4 the MOU requires ODEQ to submit to the Service on an annual basis a list of permits which ODEQ expects will be resubmitted for renewal the following year. See id. If an anticipated application for renewal appears to affect "sensitive water" as identified by the Service, the Service may request additional information on that permit. See id.
The Association challenges the EPA's approval of Oklahoma's NPDES permit program, arguing that the EPA acted outside its authority by requiring Oklahoma to comply with the ESA through the consultation process with the Service. The EPA contends that the Association lacks standing to bring this action; that this action is not yet ripe for review; and that it acted within its authority in developing procedures to facilitate compliance with the ESA.
Before addressing the merits of the Association's challenge to the EPA's approval of Oklahoma's NPDES permit program, this court must first determine whether the Association has standing to bring its claims. The Association brought this action under § 509(b) of the Clean Water Act, which grants the federal courts of appeals original jurisdiction over determinations by the EPA regarding a state NPDES permit program. See 33 U.S.C. § 1369(b)(1)(D). The Act provides that "any interested person" may bring suit to challenge the EPA's determination. 5 Id. § 1369(b)(1).
The Association is a "nonprofit trade association whose member companies grow, harvest, and process wood and wood fiber, and manufacture pulp, paper, and paperboard products and solid wood products." Its "general nature and purpose is to provide a forum for sharing ideas and information, and to represent the interests of its members in legislative and regulatory matters." In its statement of subject matter jurisdiction, required by Federal Rule of Appellate Procedure 28(a)(2), the Association states that its "members include NPDES permit holders in Oklahoma." There is no other information in the record concerning the Association's membership.
Although § 509(b) of the Act broadly provides that "any interested person" may challenge the EPA's approval of a state NPDES permit program, a plaintiff must nevertheless satisfy the standing requirements of Article III of the U.S. Constitution to bring such an action. See Valley Forge Christian College v. Americans...
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