Failed Attempts at Shutting the Valves
Ctr. for Biological Diversity v. United States EPA, 937 F.3d 533 (5th Cir. 2019).
By. Luke Norris
Petitioners, Center for Biological Diversity, GulfRestoration Network (now Healthy Gulf), and Louisiana Bucket Brigade(“Petitioners”) brought a claim against the Environmental Protection Agency (“EPA”)because of a General Permit it legally issued. General Permits "[establish] effluentlimitations, prohibitions, reporting requirements, and other conditions ondischarges."[1]
The claim stated that this Permit would lead to increased pollution in the Gulfof Mexico for it was issued to various oil and gas operations located in anddischarging into Federal waters in this area. The petitioners claimed that theEPA violated the National Environmental Policy Act (“NEPA”) through failure toprovide an adequate Environmental Impact Statement (“EIS”) and the Clean WaterAct (“CWA”) by issuing the General Permit without adequate consideration ofregulatory factors and omitting certain monitoring requirements from thepermit. The Petitioners asked the Fifth Circuit to "remand the GeneralPermit to Region 6 of EPA for further proceedings."[2]
However, the court did not address these claims becauseit held that the petitioners lacked standing under Article III of theConstitution. Petitioners bore the burden of establishing standing. Asassociations, this burden is established through use of the associational standingdoctrine, which entails a three-part test; (1) an association’s member wouldindependently meet the Article III standing, (2) interest of the associationseeks to protect are germane to the purpose of the organization; (3) neitherthe claim asserted nor the relief requested requires participation ofindividual members.[3]
The Court held that no member would independently havestanding to bring the claim because the claim and possible damages are tooattenuated to prove that the individual (1) suffered injury in fact, (2) theinjury is fairly traceable to the challenged conduct of defendant, and (3) thatit is likely to be redressed by favorable judicial decision.[4] In the instant case, thereare at last four conditions to assert injury in fact: Discharge, GeographicNexus, Temporal Nexus, and Adverse Effect. The court held that the petitionersdid not provide sufficient evidence to prove that the discharges (assumingactual occurrence) would reach specific sites of interest in the Gulf, so therewas a lack in geographic proximity. Additionally, a citation of an area asbroad as the Gulf of Mexico as one of interest as well as the petitioners’ lackof reference to relevant facilities in the Gulf as point sources leads to aninability to support Article III standing. Also, of note is the petitioners’ inabilityto show adverse effect, for they were in active pursuit of locating pollution. This meant that “successfulefforts to locate aesthetically displeasing pollution cannot serve as the basisfor an aesthetic injury in fact.”[5]
Ultimately, the EPA was able to have this attempt dismissed, withoutreaching the merit, because the Petitioners lacked proper standing.
[1] Ctr. for Biological Diversityv. United States EPA, 937 F.3d 533, 536 (5th Cir. 2019).
[2] Id.
[3] Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006) (citing Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343, 97 S. Ct. 2434, 53 L. Ed. 2d 383(1977)).
[4] Lujan v. Defs. of Wildlife, 504 U.S. 555,561 (1992).
[5] Ctr. for Biological Diversity v. United StatesEPA, 937 F.3d533, 541 (5th Cir. 2019)
