Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

The United States Court of Appeals for the Eighth Circuit reversed a District Court’s grant of summary judgment for the Environmental Protection Agency (EPA). The City of Kennett, Missouri (“the City”), brought action alleging the EPA’s approval of total maximum daily load (TMDL) of pollutants for stream into which city’s wastewater treatment plant was point source of pollutants. The United States District Court for the Eastern District of Missouri granted summary judgment to EPA. The Court of Appeals held that the City established injury in fact and redressability of the jury required for standing, and the EPA’s approval of TMDL was ripe for judicial review.

Background on the Clean Water Act

The Clean Water Act requires states to establish water quality standards which “shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” (Se3 33 U.S.C. § 1313). The Act imposes “effluent limitations,” which are restrictions on “qualities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources.” A “point source” is defined as “any discernible, confined and discrete conveyance, including but not limited to any . . . well . . . from which pollutants are or may be discharged.”

Waters for which the effluent limitations are not stringent enough to implement any water quality standard applicable to such waters are “impaired waters.” For impaired waters, states establish a “total maximum daily load” (TMDL) for certain pollutants subject to EPA approval. The TMDL’s loading capacity is the greatest amount of a pollutant that can be introduced without violating water quality standards. TMDLs are implemented by a pollution permitting program, such as the National Pollution Discharge Elimination System (NPDES), under which point-source operators obtain permits for the discharge. NPDES permits are issued by states, who must notify the EPA when they intend to issue a permit. EPA has an opportunity to object to the permit.

Background on this Suit

The City’s Wastewater treatment Plant is a point source of pollutants into the Buffalo Ditch stream. A TMDL was approved for Buffalo Ditch in 2010. This TMDL set waste load allocations for pollutants from the Treatment Plant which are more stringent than the City’s NPDES permit limits. Though the TMDL stated it was the intention of the Missouri Department of Natural Resources to conduct additional research before implementing the more strict dissolved oxygen criterion, the criterion have not changed. The City filed suit, alleging that the EPA exceeded its authority in approving the TMDL, acted arbitrarily and capriciously, and failed to provide the required notice and comment. The District Court granted summary judgment to the EPA, holding that the City lacked standing and ripeness.

This Court’s Ruling

The first issue on appeal was whether the City had standing to bring the suit, which requires (1) an injury in fact, (2) that is fairly traceable to the defendant’s conduct, and (3) is likely to be redressed by a favorable judicial decision. The City argued that it would incur compliance costs when the TMDL is implemented, and these costs would be traceable to the TMDL approval by the EPA. Because the TMDL requirements were more stringent limits on discharge than the City’s current permit, this Court agreed that moving into compliance will be costly and constituted an impending injury. Causation was not at issue on appeal. Likewise, the Court determined this regulatory burden may be decreased or delayed by a favorable court decision. Therefore, the Court determined the City to have standing.

The second issue on appeal was whether the administrative action was ripe for judicial review, which requires consideration of whether the case would benefit from further factual development, to which the Court determined it would not. Additionally, the Court considered the hardship the parties would suffer in the absence of judicial review, and determined that delay in review would harm the City.

The Court of Appeals vacated and remanded the District Court’s dismissal of these claims on summary judgement based on standing and ripeness.