Monday, January 5, 2009

Coalition of Watershed Towns v. EPA

Dec 29: In the U.S. Court of Appeals, Second Circuit, Case Nos. 07-2449 & 07-3912. Petitioners are a confederation of towns in the Catskill and Delaware watershed region of New York, that are seeking review of two actions regarding the implementation of the Safe Drinking Water Act of 1974 (SDWA) by U.S. EPA. The Appeals Court says, "For the reasons explained in this opinion, we may not address the merits of the petition because petitioners lack standing to sue under Article III of the Constitution. Specifically, petitioners have not shown that their proposed injuries are likely to be redressed by a favorable court decision. The petition is denied."

The towns petition for review of two “final actions” by the EPA: (1) an April 25, 2007 letter from the EPA highlighting the State’s non-compliance with certain EPA regulations regarding administrative penalties and temporarily postponing the previously scheduled transfer to the State of primary enforcement responsibility (primacy) over the Catskill and Delaware watersheds until the State complies with the relevant regulations; and (2) a July 30, 2007 Filtration Avoidance Determination (FAD), which required the City to spend additional monies on land acquisition in the Catskill and Delaware watershed regions.

As a threshold matter, the EPA argues that, under the “case-or-controversy” requirement of Article III of the Constitution, the Towns lack standing to bring this petition because they have not suffered any “injury-in-fact,” i.e., an invasion of a legally protected interest that is “concrete and particularized . . . and [ ] actual or imminent, not conjectural or hypothetical”.

The Appeals Court ruled, "Despite any injury the Coalition may allege, any relief this Court could provide is speculative. Even if we were to hold that the EPA was required by the MOA [Memorandum of Agreement] to transfer primacy to the State in May 2007, as opposed to September 2007, when they actually transferred primacy, there is no basis for us to conclude that petitioners would more likely than not be in any different position than they are now. While the State might have been required by state regulations and laws to perform a cost-benefit review of the substance of the July 2007 FAD [Filtration Avoidance Determination], petitioners do not point to any evidence suggesting that the State’s analysis would have substantially differed from the EPA’s, or would remedy any injury alleged by petitioners. Indeed, the State’s intervention in this case on the side of the EPA and in support of the June 2007 FAD leads us to conclude that the State would have promulgated substantially the same determination."

Access the complete opinion (
click here).

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