ELR Citation: 43 ELR 20271
No(s). 12-1639 (D.D.C. Dec 13, 2013) (Contreras)

A district court dismissed environmental groups' lawsuit challenging EPA's "authorization" of pollution trading and offsets outlined in its 2010 TMDL for the Chesapeake Bay. The groups wanted statements about offsets and trading in the Bay TMDL to be declared null and void. But the groups lack standing since they failed to show that they have an actual or imminent injury that is traceable to EPA's conduct and redressable by an order of the court. The groups alleged that the issuance of certain NPDES permits by state agencies will lead to the creation of "hotspots" and other over-polluted areas in the Bay. But the groups offer no support beyond their own conclusory allegations that hotspots have been, or necessarily will be, created by the offset and trading programs. To the extent trades and permits were and are granted by the various state agencies, such offsets would still have to comport with the TMDL and the CWA, and no offset or trade could be permitted if it would result in an exceedance of a water quality standard in the Bay watershed. In addition, the Bay TMDL does not "authorize" any third party action, nor does it coerce states into implementing any programs they would not consider implementing on their own. And the relief they seek cannot be redressed since the TMDL's statements about pollution trading and offsets reference already-existing, state-implemented programs. Thus, removing all references in the Bay TMDL to offsets or trades would have no effect on the legal landscape. Nor is the case ripe. There is no injury that is certainly impending in this case to meet the constitutional ripeness requirement, and even if there were, the groups failed to establish any prudential aspect of ripeness. And even if the groups had standing, the court would dismiss the case for failure to state a claim under the APA because there is no final agency action. Nothing in the Bay TMDL commands or requires states to engage in offsetting or trade.