United States District Court, D. Columbia.
For City of Dover, New Hampshire, Plaintiff: John C. Hall, Philip D. Rosenman, LEAD ATTORNEYS, HALL & ASSOCIATES, Washington, DC USA; Robert Lucic, PRO HAC VICE, SHEEHAN, PHINNEY, BASS & GREEN, P.A., Manchester, N.H. USA.
For City of Portsmouth, New Hampshire, City of Rochester, New Hampshire, Plaintiffs: John C. Hall, LEAD ATTORNEY, Philip D. Rosenman, HALL & ASSOCIATES, Washington, DC USA; Robert Lucic, PRO HAC VICE, SHEEHAN, PHINNEY, BASS & GREEN, P.A., Manchester, N.H. USA.
For United States Environmental Protection Agency, Gina Mccarthy, Administrator, United States Environmental Protection Agency, H. Curtis Spalding, in his official capacity as Regional Administrator of EPA Region 1, United States Environmental Protection Agency, Region 1, Defendants: Eileen T. McDonough, LEAD ATTORNEY, U.S. - ENVIRONMENTAL DEFENSE SECTION, Washington, DC USA.
JOHN D. BATES, United States District Judge.
Plaintiffs, three New Hampshire cities, filed this action pursuant to the citizen-suit
provision of the Clean Water Act (" CWA" or " the Act" ), 33 U.S.C. § 1365(a)(2). After some initial stumbles, they filed an amended complaint alleging that the defendants, including (and jointly referred to as) the Environmental Protection Agency (" EPA" ), violated the Administrative Procedure Act, 5 U.S.C. § 701 et seq., in approving New Hampshire's impaired waters list under the CWA. Now before the Court is  defendants' motion to dismiss  plaintiffs' amended complaint for lack of subject-matter jurisdiction. For the reasons explained below, the Court will grant the motion.
Last year, this Court granted defendants' motion to dismiss plaintiffs' complaint, dismissing it with prejudice for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). July 30, 2013 Order [ECF No. 18]. Plaintiffs own and operate waste treatment plants that discharge into the Great Bay Estuary, and they challenged several regulatory decisions made by EPA that they believe affected their ability to continue to do so. In rejecting plaintiffs' arguments that EPA acted improperly, the Court noted in dicta that plaintiffs might have raised their challenge to EPA's actions in the context of an APA challenge to certain decisions that EPA made. See July 30, 2013 Mem. Op. [ECF No. 17] (" Mem. Op." ) 15 (noting that " plaintiffs' real argument . . . is that the EPA . . . [has] improperly given [a certain report] the force of law in subsequent decisions" and that plaintiffs' " challenge must be raised in the context of those subsequent decisions" ). Plaintiffs, seeing this language as an invitation, moved under Fed.R.Civ.P. 59(e) and 15(a) to reopen the judgment and to amend their complaint to assert an APA claim, and the Court granted that motion. See Nov. 15, 2013 Mem. Op. & Order [ECF No. 27]. After plaintiffs amended their complaint, EPA again moved to dismiss the complaint. The Court will grant that motion because, in effect, plaintiffs still have not chosen the proper decisions to challenge.
The Court is mindful that, assuming plaintiffs' allegations are true, they may someday be forced to expend significant resources to comply with EPA's directives. That day is not today, however, which is the central flaw in their case. The regulatory decisions that plaintiffs challenge have not yet caused them harm, and indeed whether plaintiffs will be harmed is still uncertain. They ask the Court to tell EPA that it acted improperly when listing the Great Bay Estuary waters as impaired, or polluted. But EPA's action does not mean plaintiffs have to change their behavior today. And even if EPA had never listed those waters as impaired, plaintiffs might have to change their behavior anyway because of a separate permitting process. So even if plaintiffs are right that EPA acted improperly, taking the waters off the list will not help them. Down the road, plaintiffs may receive permits that do force them to spend money, whether or not the waters are listed as impaired. When they do, by statute, plaintiffs will have to challenge those permits in another forum. See 33 U.S.C. § 1369(b). This Court also cannot review actions that EPA and New Hampshire have yet to take, such as the issuance of a total maximum daily load for the Great Bay Estuary and the issuance of a new general stormwater permit. Moreover, plaintiffs do not have a right to participate in EPA's listing decision, so when EPA excluded them from that decisionmaking process, plaintiffs lost nothing to which they were entitled. Plaintiffs may yet have their day in court, but they have simply picked the wrong day.
STANDARD OF REVIEW
EPA asserts two grounds for dismissal, arguing that plaintiffs do not have standing to bring their claims and that their claims are not ripe. See Defs.' Mem. in Supp. of Mot. to Dismiss [ECF No. 32-1] (" Defs.' Mot." ) 1. These are challenges to this Court's subject-matter jurisdiction and therefore will be evaluated under Fed.R.Civ.P. 12(b)(1). See Haase v. Sessions, 835 F.2d 902, 906, 266 U.S.App.D.C. 325 (D.C. Cir. 1987) (stating that " the defect of standing is a defect in subject matter jurisdiction" ). " [I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Leatherman v. Tarrant Cnty. Narcotics Intel. & Coord. Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Therefore, the factual allegations must be presumed true, and plaintiffs must be given every favorable inference that reasonably may be drawn from the allegations of fact. See Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.App.D.C. 268 (D.C. Cir. 2000). The Court need not, however, accept as true " a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. FTC, 456 F.3d 178, 193, 372 U.S.App.D.C. 335 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).
Although courts examining a Rule 12(b)(1) motion to dismiss--such as for lack of standing or ripeness--will " construe the complaint in favor of the complaining party," see Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the " 'plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim," Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13-14 (D.D.C. 2001) (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1350 (2d ed. 1987)). Because the elements necessary to establish jurisdiction are " not mere pleading requirements but rather 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; i.e., with the manner and degree of evidence required at successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Thus, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, so long as the court accepts the factual allegations in the complaint as true. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54, 365 U.S.App.D.C. 270 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3, 326 U.S.App.D.C. 67 (D.C. Cir. 1997).
I. REGULATORY BACKGROUND
a. Water Standards Under The Clean Water Act
Generally, the Clean Water Act uses two different types of standards " to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" : technology-based standards and water-quality standards. 33 U.S.C. § 1251(a). Technology-based standards set a minimum level of treatment that must be performed by those who discharge pollutants into waters. That level is predetermined by EPA to be both technologically available and economically achievable. Id.
§ 1311(b)(1)(B) (requiring certain standards for publicly owned treatment works). In contrast, water quality standards depend on the purpose for which a particular body of water is used. 40 C.F.R. § 131.3(i). A body of water designated as a water supply, for example, may have a different standard from a body of water designated for watercraft navigation. States are primarily responsible for creating and revising water quality standards, but they must also submit those standards to EPA for approval. Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 349, 302 U.S.App.D.C. 80 (D.C. Cir. 1993) (water quality standards " are primarily the states' handiwork" ); 33 U.S.C. § 1251(b) (stating Congressional policy to " recognize, preserve, and protect the primary responsibilities and rights of States" in reducing pollution and protecting their water resources); see also 33 U.S.C. § 1313(c)(2)(A) (states must submit new or revised standards to EPA for review); 33 U.S.C. § 1313(c)(3) (EPA must approve or disapprove standards and notify state of proposed changes); 40 C.F.R. § 131.21(a) (same); 33 U.S.C. § 1313(c)(4) (if state fails to adopt changes, EPA must promulgate standards).
Water quality standards can be expressed as numerical criteria or as narrative criteria. 40 C.F.R. § 131.3(b). Numerical criteria define specific levels or concentrations of particular pollutants, while narrative criteria describe the body of water or levels of pollutants in qualitative terms. Whether expressed numerically or narratively, standards describe the maximum amount of pollutants that waters can contain before their designated use is considered to be impaired. For example, a water quality standard relating to a water supply might set a level of chlorine in parts per billion (" PPB" ). Waters that contain levels of chlorine higher than, e.g., 20 PPB would be considered, under that water quality standard, impaired for use as a water supply. Narrative standards are less specific: for example, one might provide that bodies of water designated for use as water supplies shall not contain chlorine in concentrations that would impair their use as water supplies. Several parts of the Act's regulatory scheme call for EPA or a state to translate narrative criteria into numerical standards for some purpose.
b. National Pollution Discharge Elimination System Permits
Under the Act, certain sources (such as plaintiffs' waste treatment plants) may discharge pollutants only under the terms of a National Pollution Discharge Elimination System permit (" NPDES permit" or simply " permit" ), which may be administered by a state or by EPA. See Am. Paper Inst., 996 F.2d at 349; see also 33 U.S.C. § § 1311(a), 1342.
Permits are waterway- and discharger-specific. Permits limit those who discharge pollutants into particular waterways by limiting the amount of a particular pollutant a permitholder may release (often referred to as " effluent limits" ). Those limits are set with reference to the waterway into which the permitholder is releasing pollutants. If the applicable water quality standard for a particular waterway is strict, a permitholder likely will face strict limits on how much of a particular pollutant it can release into that waterway.
Permits contain both technology-based limits and water-quality-based limits. 33 U.S.C. § § 1311(b), 1314(b). Technology-based limits essentially act as a floor: they describe a minimum level of treatment a permitholder must perform. Permitholders must meet both technology-based limits and water-quality-based limits. If technology-based limits are not strict enough to ensure that a state's water quality standards
will be met, then a permit must contain additional limits regardless of technological or financial concerns. 40 C.F.R. § 122.44(d)(1); see 33 U.S.C. § 1311(b)(1)(C). EPA's regulations provide a detailed process for determining water-quality-based limits, starting with the identification of pollutants of concern. See 40 C.F.R. § 122.44(d)(1). Thus, permits contain both technology-based limits and (usually more stringent) water-quality-based limits.
c. The 303(d) List
NPDES permits are but one piece of the Act's larger scheme designed to protect the nation's waters. Another piece of that scheme is provided in 33 U.S.C. § 1313(d) (section 303(d) of the Act). Under that provision, every two years, each state must identify and list waters for which technology-based limits are not strict enough to achieve or maintain state water quality standards. 40 C.F.R. § 130.7; see 33 U.S.C. § 1313(d)(2). In creating its section 303(d) list, a state must " assemble and evaluate all existing and readily available water quality-related data and information." 40 C.F.R. § 130.7(b)(5). EPA must then approve or disapprove of that list, referred to as the " impaired waters list" or the " 303(d) list." 33 U.S.C. § 1313(d)(2) (EPA must establish its own list if it disapproves of state's list). To sum up, waters are included on ...