National Resources Defense Council v. U.S. E.P.A.
| Decision Date | 27 June 2006 |
| Docket Number | No. CV 04-8307-GHK(RCX).,CV 04-8307-GHK(RCX). |
| Citation | 437 F.Supp.2d 1137 |
| Court | U.S. District Court — Central District of California |
| Parties | NATIONAL RESOURCES DEFENSE COUNCIL, et al. Plaintiffs, and State of New York, et al. Intervenor-Plaintiffs, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, et al. Defendants, and Associated General Contractors of America, et al. Intervenor-Defendants. |
Clare F. Saperstein, Kim J. Landsman, Patterson Belknap Webb and Tyler, New York, NY, Daniel G. Cooper, Lawyers For Clean Water, San Francisco, CA, Jason M. Booth, Dongell Lawrence Finney, Los Angeles, CA, Layne K. Friedrich, Lawyers for Clean Water, Santa Monica, CA, David T. Ballard, Barnes and Thornburg, Chicago, IL, Jeffrey S. Longsworth, Barnes and Thornburg, Washington, DC, for Plaintiffs.
Denise Lillio Vecchio, Stephen G. Vitelli, State of Connecticut Attorney General's Office, Hartford, CT, Jan Chatten-Brown, Katherine A. Trisolini, Chatten-Brown & Associates, Santa Monica, CA, Andrew G. Frank, New York State Office of the Attorney General, New York, NY, Philip Bein, New York State Attorney General's Office, Albany, NY, for Intervenor-Plaintiffs.
Alan D. Greenberg, United States Department of Justice, Denver, CO, for Defendant.
MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR PATIAL SUMMARY JUDGMENT
This matter is before the Court on a motion for partial summary judgment brought by Plaintiffs Natural Resources Defense Council ("NRDC") and Waterkeeper Alliance (collectively "Environmental Plaintiffs") and Intervenor Plaintiffs State of New York, New York State Department of Environmental Conservation, and State of Connecticut (collectively "States" or "State Plaintiffs") against Defendants United States Environmental Protection Agency and Stephen L. Johnson (collectively "EPA") and Intervenor Defendants National Association of Home Builders and Associated General Contractors of America (collectively "Intervenor Defendants"). We heard oral argument on this matter, and ordered further briefing in light of such hearing. After carefully considering all the papers filed and the parties' arguments in court, we rule as follows.
The parties are familiar with the facts in the current action. Thus, we will not repeat any facts except as necessary.
The issue before us is the scope of the EPA's obligations under the Clean Water Act ("the Act"), 33 U.S.C. §§ 1314(b), 1314(m), and 1316. In 1987, Congress amended the Act by adding section 1314(m), which provides that every two years the EPA shall publish a plan identifying "categories of sources discharging toxic or nonconventional pollutants" for which effluent limitation guidelines ("ELGs") and new source performance standards ("NSPSs") have not yet been published. 33 U.S.C. § 1314(m)(1)(B). The plan must also "establish a schedule for promulgation of effluent guidelines" for the categories identified in the plan, "under which promulgation of such guidelines shall be no later than ... 3 years" from publication of the plan. 33 U.S.C. § 1314(m)(1)(C).1
In 2002, in accordance with 33 U.S.C. § 1314(m), the EPA proposed effluent limitation guidelines and new source performance standards for storm water discharges from the construction and development industry ("the Construction Industry"). However, after receiving public comment on the proposed regulations, the EPA decided not to issue the proposed ELGs and NSPSs. Instead of establishing uniform national standards for these sources of discharge, which would be applied through the issuance of permits, the EPA elected to allow the National Pollutant Discharge Elimination System ("NPDES") authorities in various states to continue issuing permits based on their "best professional judgment," exercised on a case-by-case basis. See Effluent Limitations Guidelines and New Source Performance Standards for the Construction and Development Category, 69 Fed.Reg. 22,472 (April 26, 2004) ().
Plaintiffs sue to compel the EPA to promulgate ELGs and NSPSs for the Construction Industry. In moving for partial summary judgment on their first claim, Plaintiffs seek a declaratory judgment that the EPA, by declining to promulgate ELGs and NSPSs for the Construction Industry, has failed to comply with the requirements of 33 U.S.C. §§ 1314(b), 1314(m), and 1316. Plaintiffs argue that the Act imposes on the EPA a nondiscretionary duty to promulgate ELGs and NSPSs for categories of sources identified in a plan published pursuant to section 1314(m). Defendants respond that the Act imposes no such duty. Additionally, they argue that Plaintiffs' motion should be denied because (1) Plaintiffs lack standing to bring this claim and (2) the first claim is barred by claim preclusion. We first address these two threshold issues.
The standing inquiry serves to determine whether "a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy," Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and to ensure that legal questions will be resolved "in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge Christian Coll. v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). To ascertain whether the requirement under Article III (U.S. Const. art. III, § 2, ¶ 1) is satisfied, we must consider three issues.
First, the plaintiff must have suffered an "injury in fact"—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not `conjectural' or `hypothetical.' " Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations omitted).
In addition to the Article III standing requirements, we also adhere to self-imposed prudential principles that limit the exercise of federal jurisdiction. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). These include "the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked." Id. Unlike constitutional standing requirements, these prudential requirements can be modified or abrogated by Congress in its legislative enactments. See Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). In the case before us, the Clean Water Act's citizen suit provision authorizes civil actions by "any citizen ... on his own behalf" "where there is alleged a failure of the [EPA] Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." 33 U.S.C. § 1365(a) and (a)(2). This provision is regarded as extending standing to the "outer boundaries" set by Article III, eliminating the need for a separate prudential standing inquiry. Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir.2000).
The party invoking federal jurisdiction has the burden of establishing the various elements of standing. As "an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof." Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Because the relief sought by the State Plaintiffs and the Environmental Plaintiffs is the same, a conclusion that one group of plaintiffs has standing is sufficient to overcome Defendants' challenge. See Dept. of Commerce v. United States House of Representatives, 525 U.S. 316, 330, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999) (); Bowsher v. Synar, 478 U.S. 714, 721, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) ().
"An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.(TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The EPA does not challenge the Environmental Plaintiffs' standing. The Intervenor Defendants do not contest that the Environmental Plaintiffs satisfy the second and third prongs of the organizational standing requirements, but contend that individual members of the Environmental Groups cannot establish standing, which requires a showing of injury in fact, causation, and redressability, as set forth in Lujan.
In environmental cases, the injury in fact requirement is met if an individual member adequately shows that she or he has an economic, aesthetic, or recreational interest in a particular place, animal, or plant species and that the interest is impaired by the challenged conduct. See Laidlaw Envtl. Servs., 528 U.S. at 183-84, 120 S.Ct. 693; Lujan, 504 U.S. at 562-63, 112 S.Ct. 2130. Individual members must "distinguish themselves from the public at large" by demonstrating that the injury alleged will affect them "`in a personal and individual way.'" Harris v. Bd. of Supervisors, 366 F.3d 754, 761 (9th Cir.20...
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