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ASSOCIATION OF METRO. WATER AGENCIES v. BROWNER

October 13, 1998

ASSOCIATION OF METROPOLITAN WATER AGENCIES, Plaintiff, and AMERICAN WATER WORKS ASSOCIATION, Plaintiff-Intervenor,
v.
CAROL M. BROWNER, Administrator United States Environmental Protection Agency, et al., Defendants.



The opinion of the court was delivered by: OBERDORFER

MEMORANDUM

 Plaintiff, the Association of Metropolitan Water Agencies, and plaintiff-intervenor, the American Water Works Association, challenge the decision of defendant Carol M. Browner, Administrator of the United States Environmental Protection Agency ("EPA"), not to reserve funds for health effects research from a particular 1997 appropriation. The issues in the case are framed by cross-motions for summary judgment. *fn1"

 I.

 The crux of this case concerns the interplay of two acts of Congress. On the one hand is the Safe Drinking Water Act Amendments of 1996, 42 U.S.C. § 300f et seq. (West Supp. 1998) ("1996 Amendments"). Sub-section 1452(m) of the 1996 Amendments authorizes appropriations for so-called drinking water state revolving loan funds -- mechanisms by which the EPA grants money to states to develop drinking water facilities. 42 U.S.C. § 300j-12(m) (West Supp. 1998). More particularly, § 1452(m) authorizes appropriations of $ 599,000,000 for fiscal year 1994 and $ 1,000,000,000 for each of fiscal years 1995 through 2003. Id. Sub-section 1452(n) of the 1996 Amendments then provides: "From funds appropriated pursuant to this section for each fiscal year, the Administrator shall reserve $ 10,000,000 for health effects studies on drinking water contaminants authorized by the Safe Drinking Water Act Amendments of 1996." 42 U.S.C. § 300j-12(n) (West Supp. 1998).

 On the other hand is the Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1997, Pub. L. 104-204, 110 Stat. 2874 (1996) ("1997 Appropriations Act"). The "State and Tribal Assistance Grants" section of the 1997 Appropriations Act provides: "That of the $ 1,900,000,000 for capitalization grants for State revolving funds to support water infrastructure financing, $ 1,275,000,000 shall be for drinking water State revolving funds." 110 Stat. 2911-12. It is undisputed that the Administrator did not reserve any money from this specific appropriation for health effects studies.

 Plaintiff and plaintiff-intervenor ("the Associations") contend that the State and Tribal Assistance Grants appropriation was made "pursuant" to § 1452 of the 1996 Amendments, such that the Administrator was required to set aside funds from it for health effects studies. Further, they argue that the 1997 Appropriations Act appropriated funds for fiscal years 1995, 1996, and 1997, thereby obligating the Administrator to reserve $ 10,000,000 for health effects studies for each of those three years. The Associations seek a declaratory judgment that the Administrator's failure to reserve funds for health effects studies for those years was unlawful, as well as injunctive relief requiring the Administrator to set aside $ 30,000,000 for health effects studies from the amounts appropriated under the State and Tribal Assistance Grants appropriation. Plaintiff-intervenor also has requested an order requiring the Administrator to reserve funds pursuant to the health effects set-aside for fiscal year 1998 and subsequent years.

 Defendants respond to the Associations' claims with jurisdictional and substantive arguments. As an initial matter, they assert that the Associations fail to satisfy the Article III standing requirements enunciated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992), and therefore cannot properly bring this suit. Even assuming standing, however, defendants contend that the Administrator was not obligated to set aside funds for health effects studies. First, they assert that the 1997 Appropriations Act did not make any appropriations for fiscal years 1995 and 1996. Second, they argue that the specific appropriation in the 1997 Act -- the State and Tribal Assistance Grants section -- was a specific earmark that did not trigger the set-aside provision in the 1996 Amendments. There are no disputed issues of material fact, and as a matter of law defendants are entitled to summary judgment.

 II.

 The first prong of defendants' cross-motion for summary judgment is that the Associations lack standing to pursue their claims. *fn2" An assessment of whether Article III standing is met is governed by the tripartite framework fashioned by the Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). To carry its burden pursuant to Lujan, a plaintiff must show that: 1) he has suffered an injury in fact; 2) that the injury is fairly traceable to the challenged action of the defendant; and 3) that it is likely that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61. As a matter of law, the Associations have made the requisite showings.

 It is undisputed that plaintiff's members, who are public agencies, special purpose districts, and regional, county, and municipal authorities, "gather, store, treat, and distribute drinking water to more than 95 million Americans throughout the United States." Pl.'s Stmt. of Undisputed Facts P 2; Defs.' Resp. to Pl.'s Stmt. of Facts at 5. It is also undisputed that in carrying out these tasks, plaintiff's members are required to comply with regulations -- promulgated by the Administrator -- that establish maximum contaminant levels for drinking water. See 42 U.S.C. § 300g-1 (West Supp. 1998); Pl.'s Stmt. of Undisputed Facts P 8; Defs.' Resp. to Pl.'s Stmt. of Facts at 7. Congress has mandated that in enacting such regulations, the Administrator shall use "the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific purposes . . . and . . . data collected by accepted methods or best available methods . . . ." 42 U.S.C. § 300g-1(b)(3)(A) (West Supp. 1998).

 Congress' explicit insistence that contaminant regulations stand on "the best available, peer-reviewed science and supporting studies" establishes the instant case as one in which a party brings suit to validate a "procedural right" that protects concrete interests. The paradigmatic procedural right case, as the Supreme Court indicated in Lujan, is one in which a person "living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement . . . ." 504 U.S. at 572 n.7. Like the case where the procedural right of an environmental impact statement protects society's environmental interests and the local population's communal interests, here too the procedural right to health effects studies protects not only the public's interest in safe drinking water but also plaintiff's members' economic and business interests in maintaining efficient, safe, and scientifically-advanced drinking water systems. That this interest is sufficiently concrete is beyond dispute. See, e.g., Animal Legal Defense Fund, Inc. v. Glickman, 1998 U.S. App. LEXIS 21398, 1998 WL 549459, at *5 (D.C. Cir. Sept. 1, 1998) (en banc) (recognizing a cognizable "aesthetic interest in seeing exotic animals living in a nurturing habitat").

 Plaintiff's inability to "establish with any certainty" that health effects studies will lead to regulations that produce benefits to its members does not deprive it of standing. Lujan, 504 U.S. at 572 n.7 (standing would exist for hypothetical plaintiff "even though he cannot establish with any certainty that the [environmental impact] statement will cause the license to be withheld or altered"). Neither does the fact that the Administrator may not promulgate new regulations in the immediate future. See id. (standing would exist "even though the dam will not be completed for many years"). Indeed, it would make little sense to require plaintiff to defer this lawsuit until the Administrator issues revised regulations, for at that point the procedural right could no longer be vindicated and the harm will already have occurred. Thus, since the Administrator has made clear that she does not intend to set aside funds for health effects studies from the State and Tribal Assistance Grants appropriation, the alleged procedural violation has already occurred, establishing the necessary imminency requirement for standing. See National Treasury Employees Union v. United States, 322 U.S. App. D.C. 135, 101 F.3d 1423, 1430-31 (D.C. Cir. 1996). *fn3" In light of the foregoing, it is clear as a matter of law that plaintiff has carried its burden of proof with respect to standing. *fn4"

 III. ...


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