Conservation Law Found., Inc. v. Jackson

• Decision Date: 23 August 2013
• Docket Number: C.A. No. 11–11657–MLW.
• Citation: 964 F.Supp.2d 152
• Parties: CONSERVATION LAW FOUNDATION, INC., et al., Plaintiffs, v. Lisa P. JACKSON, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

964 F.Supp.2d 152

CONSERVATION LAW FOUNDATION, INC., et al., Plaintiffs,

v.Lisa P. JACKSON, et al., Defendants.

C.A. No. 11–11657–MLW.

United States District Court, D. Massachusetts.

Aug. 23, 2013.

Anthony Nicholas Lappin Iarrapino, Conservation Law Foundation, Inc., Montpelier, VT, Cynthia Liebman DeCambre, Conservation Law Foundation, Inc., Boston, MA, Christopher M. Kilian, Conservation Law Foundation, Montpelier, VT, Korrin N. Petersen, The Coalition for Buzzards Bay, New Bedford, MA, Mark A. Chertok, Sive, Paget & Riesel, New York, NY, for Plaintiff.

Perry M. Rosen, U.S. Department of Justice, Washington, DC, for Plaintiff/Defendant.

Anton P. Giedt, United States Attorney's Office, Boston, MA, David S. Gualtieri, Department of Justice, Environment & Natural Resources Div., Washington, DC, for Defendant.

Luke Hoffman Legere McGregor & Associates, P.C. Boston, MA for Intervenor.

MEMORANDUM AND ORDER CONCERNING COUNT IV

WOLF, District Judge.

I. INTRODUCTION

Plaintiffs Conservation Law Foundation (“CLF”) and Buzzards Bay Coalition, Inc. (“BBC”) assert in their First Amended Complaint (the “FAC”) four claims under § 208 Clean Water Act (the “CWA”), 33 U.S.C. § 1288, and the Administrative Procedure Act (the “APA”), 5 U.S.C. § 706(2). In general, plaintiffs allege that the Environmental Protection Agency (“EPA”) violated the CWA and the regulations promulgated pursuant to that statute in a manner that contributed to increased levels of nitrogen in certain waters around Cape Cod (the “embayments” or “waters”). Those increased nitrogen levels, plaintiffs contend, have degraded and continue to degrade the embayments in a manner that has injured the recreational, commercial, and aesthetic interests that plaintiffs' members have in those waters.

For the reasons described orally on August 23, 2013, the court has granted the motion of defendants Lisa P. Jackson, the Administrator of the EPA, and Curt Spaulding, its Regional Administrator, to dismiss the claims in Counts I, II, and III against them in their official capacities.

In Count IV, plaintiffs assert that the EPA's mandatory annual reviews of how Massachusetts administers its State Revolving Fund (“SRF”) monies has been arbitrary, capricious, and contrary to law. See FAC ¶¶ 103, 113. Under the CWA, the EPA has the authority to grant money to a state's SRF fund for certain types of waste water management projects and subject to certain restrictions on the use of those funds. The EPA has a mandatory duty to review on an annual basis, a state's plans and reports concerning the state's use of those SRF funds. See33 U.S.C. § 1386(e). Plaintiffs claim that Massachusetts cannot be administering its SRF funds for the Cape Cod region in accordance with the CWA because there has not been an updated, certified, and approved § 208 areawide plan for that region since 1978. See FAC ¶¶ 101–02. Therefore, they assert under the APA that the EPA's review of Massachusetts' administration of its SRF funds has been arbitrary, capricious, and contrary to the CWA. See id. ¶¶ 102–03. Plaintiffs also allege that the EPA's annual reviews are unlawful because they have been unsupported by the administrative record developed for the purpose of those reviews. See id. ¶ 103.

Plaintiffs seek declaratory and injunctive relief concerning Count IV. More specifically, plaintiffs request a declaration that defendants acted arbitrarily, capriciously, and contrary to law by determining that Massachusetts' administration of its SRF funds complies with § 208 of the CWA, and a declaration that the EPA unlawfully failed to notify the Commonwealth of its noncompliance. They seek an injunction requiring: (1) the EPA to notify the Commonwealth of its noncompliance; and (2) an update to the § 208 areawide plan within one year.

For the reasons described in this Memorandum and Order, defendants' motion to dismiss Count IV, pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction is being denied.¹

II. ANALYSIS

“It is the plaintiff's burden to prove the existence of subject matter jurisdiction.” Aversa v. United States, 99 F.3d 1200, 1209 (1st Cir.1996) (citing Murphy v. United States, 45 F.3d 520 (1st Cir.1995)). Where, as the parties agree is appropriate here, a court decides a Rule 12(b)(1) motion on the pleadings, it must “construe the Complaint liberally and treat all well-pleaded facts as true[,] according the plaintiff the benefit of all reasonable inferences.” Murphy, 45 F.3d at 522;accord Calderon–Serra v. Wilmington Trust Co., 715 F.3d 14, 17 (1st Cir.2013). However, a court is not “ ‘bound to accept as true a legal conclusion couched as a factual allegation.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).

In Count IV, plaintiffs generally allege that because the § 208 areawide plan for Cape Cod is so outdated, and the 1978 plan states that it will be updated annually, any decisions by the EPA to continue to allow Massachusetts to fund SRF projects consistent with that 1978 plan are arbitrary, capricious, or contrary to law. See FAC ¶¶ 84–85, 100–03. Plaintiffs further allege that “[a]s a result of Defendants' actions and omissions” with respect to the administration of SRF funds on Cape Cod, “they have suffered and will continue to suffer injuries to their aesthetic, environmental, recreational, and commercial interests in enjoying and utilizing the affected Cape Cod waters.” Id. ¶ 104.

Defendants argue that Count IV must be dismissed for lack of subject matter jurisdiction because: (1) plaintiffs do not have standing to assert their SRF claim; (2) plaintiffs' SRF claim is not ripe for adjudication; and (3) the EPA's annual reviews of Massachusetts' administration of its SRF funds do not constitute final agency action under the APA. At the hearing on August 21, 2013, defendants also argued that the provisions of the CWA that govern the EPA's annual reviews of SRF funding, 33 U.S.C. §§ 1386(e) and (f), do not require the agency to consider whether a state's use of its SRF funds is consistent with the applicable § 208 areawide plan. As described below, none of these contentions are correct.

A. Defendants' Statutory Arguments

Defendants argue that states, not the EPA, have the obligation to determine whether SRF-funded projects are consistent with the pertinent § 208 areawide plan. Defendants are correct that the states have an obligation to ensure that each project that they finance with SRF money is consistent with any applicable § 208 areawide plan. Under 33 U.S.C. § 1383(f), “A State may provide financial assistance from its water pollution control revolving fund only with respect to a project which is consistent with plans, if any, developed under section[ ] ... 1288 [§ 208] ... of this title.”

However, contrary to defendants' contention, the EPA does have a responsibility for determining whether a state is, in fact, complying with that obligation. The CWA provides that the EPA “shall conduct an annual oversight review of each State plan” and report concerning the state's use of SRF monies, “and other such materials as are considered necessary and appropriate in carrying out the purposes of this subchapter [VI of the CWA, 33 U.S.C. §§ 1381–87].” Id. § 1386(e). As defendants recognize, one purpose of Subchapter VI is to ensure that states only allocate their SRF funds to projects that are consistent with an operative § 208 areawide plan. See id. § 1383(f). It follows that as part of the EPA's annual review process under § 1386(e) to carry out the purposes of Subchapter VI, it has a duty to ensure that states are administering their SRF funds in accordance with any operative § 208 areawide plan. In this case, the 1978 areawide plan for Cape Cod is still in effect. Accordingly, the EPA's reviews of Massachusetts' use of its SRF funds on Cape Cod must consider whether the Commonwealth is administering those funds consistent with the 1978 § 208 areawide plan.

Defendants also argue that the EPA need not consider § 208 areawide plans when the agency performs its annual reviews because 33 U.S.C. § 1386(f) states that: “Except to the extent provided in this subchapter [VI], the provisions of subchapter II of this chapter [which contains § 208] shall not apply to grants under this subchapter [VI].” The key clause in that provision, which defendants did not mention in their argument, is “[e]xcept to the extent provided in this subchapter [VI].” Id. Section 1383(f) of Subchapter VI mandates that a state spend SRF funds on a project only if that project is consistent with the applicable § 208 areawide plan. Accordingly, § 1386(f) does not relieve the EPA of the responsibility to ensure during its annual reviews that Massachusetts is using its SRF funds in a manner that is consistent with the 1978 § 208 areawide plan.

B. Standing

1. Legal Standards for Standing

The three constitutional requirements for plaintiffs to have standing are: (1) injury in fact; (2) causation; and (3) redressibility. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); accord Katz v. Pershing LLC, 672 F.3d 64, 71–72 (1st Cir.2012). Because plaintiffs are the party seeking to invoke federal jurisdiction in this case, they bear the burden of establishing the elements of standing for each claim that they assert. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130;Katz, 672 F.3d at 71. Plaintiffs must support each of the elements of standing “in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. “At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presum[e] that general...