TX Independent v. EPA ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3277, 03-3278, 03-3279, 03-3280 & 03-3281
TEXAS INDEPENDENT PRODUCERS
AND ROYALTY OWNERS ASSOCIATION, et al.,
Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
____________
Petitions for Review of an Order
of the Environmental Protection Agency.
No. 02-OW-55
____________
ARGUED DECEMBER 7, 2004—DECIDED JANUARY 27, 2006
____________
Before BAUER, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. In a previous opinion, Texas Inde-
pendent Producers and Royalty Owners Association v. EPA, 410
F.3d 964, 977-78 (7th Cir. 2005), this court addressed various
issues concerning a general permit issued by the Environmen-
tal Protection Agency (“EPA”) for storm water discharges. We
reserved several issues pending the resolution of litigation in
another circuit. This opinion now addresses those unresolved
issues relating to the “Final National Pollutant Discharge
Elimination System General Permit for Storm Water Dis-
2 Nos. 03-3277, et al.
charges From Construction Activities” (“General Permit”),
promulgated by the EPA on July 1, 2003. 68 Fed.Reg. 39,087
(July 1, 2003). To recap: Following the EPA’s issuance of this
General Permit, several organizations filed petitions for
review, and those petitions were consolidated before this
court. On June 13, 2005, this court held that the General Permit
does not violate the Clean Water Act’s (“CWA”) requirements
for public notice and public hearing. Texas Indep. Producers and
Royalty Owners Ass’n v. EPA, 410 F.3d 964, 977-78 (7th Cir.
2005). We also held that in issuing the General Permit, the EPA
complied with the requirements of the Endangered Species
Act. Id. at 979. However, we dismissed the petition filed by the
Natural Resources Defense Council, Inc., for lack of standing.
Id. at 976. We then stayed consideration of the remaining
challenges presented by organizations representing individu-
als in the oil and gas industries, pending resolution by the
Fifth Circuit as to whether those petitioners were required to
obtain a permit in the first instance. Id. at 980. After the Fifth
Circuit held that the Oil and Gas Petitioners’ challenge to the
application of the General Permit was not ripe for review,
Texas Independent Producers and Royalty Owners Assoc. v. EPA,
413 F.3d 479, 484 (5th Cir. 2005), we directed the parties to file
supplemental briefing addressing the import of that decision.
Before briefing was due, Congress passed the Energy Policy
Act of 2005, which expressly exempts construction activities in
the oil and gas industries from the permit requirements of the
1
CWA. Energy Policy Act of 2005, Pub. L. No. 109-58, § 323,
119 Stat. 594, 694 (2005). We directed further briefing on the
impact of the Energy Policy Act. We now hold that because
of the exemption contained in the Energy Policy Act, those
1
Following passage of the Energy Policy Act, the Oil and Gas
Petitioners sought rehearing. On December 2, 2005, the Fifth
Circuit denied the Petition for Rehearing, “WITHOUT PREJU-
DICE to seeking relief in the event of unreasonable delay by the
Agency.”
Nos. 03-3277, et al. 3
aspects of the General Permit that the Oil and Gas Petitioners
seek to challenge do not apply to them. We therefore dis-
miss this petition for lack of standing.
I.
Congress enacted the Clean Water Act (“CWA” or “Act”) “to
restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Among
other things, the CWA prohibits the “discharge of any pollut-
ant,” except in compliance with the Act’s provisions. 33 U.S.C.
§ 1311(a). In particular, the discharge of pollutants into
navigable waters is illegal unless authorized by a permit
issued pursuant to § 402 of the Act. 33 U.S.C. § 1342. Section
402 established the National Pollutant Discharge Elimination
System (“NPDES”), and requires dischargers to obtain a
2
permit from the EPA or an authorized state. 33 U.S.C.
§ 1342(a)(1), (b).
In 1987, Congress added § 402(p) to the CWA, establishing
a two-step phased approach to regulating storm water
discharges. 33 U.S.C. § 1342(p). “In Phase I, Congress required
NPDES permits for storm water discharges from ‘industrial
activities,’ 33 U.S.C. § 1342(p)(3)(A), defined as construction
activities involving five or more acres, as well as discharges
from certain large municipal storm sewer systems. 55 Fed.Reg.
47,990, 48,066 (Nov. 16, 1990).” Texas Indep. Producers, 410 F.3d
at 968. The EPA decided to implement the permit requirement
for Phase I by using a general permit system, as opposed to a
system requiring individual permits for each construction
2
“The EPA administers the NPDES program in each state unless
the EPA previously authorized a state program to issue NPDES
permits.” Am. Paper Inst., Inc. v. EPA, 890 F.2d 869, 871 (7th Cir.
1989) (citing 33 U.S.C. § 1342(b)).
4 Nos. 03-3277, et al.
activity. 55 Fed.Reg. 47,990, 48,005-06 (Nov. 16, 1990). Texas
Indep. Producers, 410 F.3d at 968. As we explained in our prior
opinion, “[t]he NPDES permitting system originally used
individual permits, which was feasible for regulating dis-
charges from wastewater facilities or industrial plants.
However, by the 1980’s it became clear that the individual
permitting process was unworkable to regulate storm water
discharges which can occur virtually anywhere.” Texas Indep.
Producers, 410 F.3d at 967-68 (citing 56 Fed.Reg. 40,948,
40,949-50 (Aug. 16, 1991)). “With a general permit, the EPA
issues a permit for specific types of activities and establishes
specific rules for complying with the permit. Then, rather than
apply for an individual permit, operators must file a Notice of
Intent stating that they plan to operate under the general
permit, and absent a negative ruling by the EPA, discharges
that comply with the terms of the general permit are automati-
cally authorized.” Id. at 968.
In 1992, the EPA issued its first general permit for construc-
tion-related storm water discharges. 57 Fed.Reg. 41176 (Sept.
9, 1992). The EPA, in 1997, proposed a revised general permit.
62 Fed.Reg. 29786 (June 2, 1997). Texas Indep. Producers, 410
F.3d at 968. Then in 1999, the EPA issued its Phase II storm
water rules, which defined as additional discharges subject to
the general permitting requirements “small construction sites
(one to five acres), smaller municipalities, and additional
sources that might be designated on a case-by-case basis. 64
Fed.Reg. 68722 (Dec. 8, 1999); 40 Fed.Reg. § 122.26(b)(15).”
Texas Indep. Producers, 410 F.3d at 968. On December 20, 2002,
the EPA proposed a third General Permit for storm water
discharges from both large and small construction sites, 67
Fed.Reg. 78,116 (Dec. 20, 2002), although this General Permit
only applies in jurisdictions not regulated by a State or Tribal
NPDES permitting program. Texas Indep. Producers, 410 F.3d at
968. “After holding a series of public meetings and considering
public comments, the EPA published notice of the final
Nos. 03-3277, et al. 5
General Permit on July 1, 2003. 68 Fed.Reg. 39,087.” Texas
Indep. Producers, 410 F.3d at 968.
Under the terms of the final General Permit, potential
dischargers must submit a Notice of Intent to operate under
the General Permit and a responsible corporate official must
certify the basis for eligibility for such coverage under the
General Permit. General Permit, Appendix G at 11A.1. We
detailed many of the other terms of the General Permit in our
prior opinion:
The General Permit also requires that the operator create,
maintain, and implement a site-specific Storm Water
Pollution Prevention Plan (“SWPPP”), which must also be
certified by a corporate official. General Permit 3.13;
General Permit, Appendix G at 11A.1. The discharger
must further implement best management practices
(“BMP”) necessary to comply with water quality stan-
dards, assure weekly site inspections, and document those
inspections, including detailing weather conditions. See
General Permit 4.5A (construction operators must “select,
install, and maintain BMPs at your construction site” that
minimize pollutants in the discharges as necessary to meet
applicable water quality standards); General Permit 3.10.A
(detailing requirements for inspections).
410 F.3d at 969.
After the EPA issued the General Permit, several organiza-
tions filed petitions for review of this final agency action, and
those petitions were consolidated before this court. Of rele-
3
vance here, the Oil and Gas Petitioners presented several
arguments. First, “the Oil and Gas Petitioners argue[d] that the
EPA’s definition of ‘common plan’ contained in the General
Permit is so broad, ambiguous, and vague that it violates their
3
As noted above, this court resolved all the remaining petitions
in our previous opinion. Texas Indep. Producers, 410 F.3d at 980.
6 Nos. 03-3277, et al.
rights to due process because they do not know if they need to
apply for a General Permit.” Texas Indep. Producers, 410 F.3d at
970. Similarly, “[t]he Oil and Gas Petitioners . . . argue[d] that
the EPA’s definition of ‘final stabilization’ is too vague.” Id.
Finally, “the Oil and Gas Petitioners argue[d] that the EPA’s
definitions of ‘common plan’ and ‘final stabilization’ are
arbitrary and capricious because the definitions do not take
into account the differences in construction activities related to
oil and gas exploration and conventional residential and
commercial activities.” Id.
In presenting these arguments, the Oil and Gas Petitioners
also asserted that the permit requirements of the CWA did not
apply to them in the first instance. Id. However, the Oil and
Gas Petitioners maintained that they were not challenging the
EPA’s decision that they must obtain storm water discharge
permits, as that question was pending before the Fifth Circuit.
Id. The Fifth Circuit case involved several final rules promul-
gated by the EPA, beginning with Final Rule, 68 Fed.Reg.
11,325. See 413 F.3d at 481. In 68 Fed.Reg. 11,325 (“Deferral
Rule”), the EPA deferred the Phase II permit requirements it
had established in 64 Fed.Reg. 68,722 for construction activities
disturbing one to five acres, but only for construction activities
at oil and gas sites. Specifically, the EPA stated that
“[d]ischarges associated with small construction activity at
such oil and gas sites require permit authorization by March
4
10, 2005.” 68 Fed.Reg. at 11,330.
Although the Deferral Rule extended the deadline for
obtaining permits for construction activities at oil and gas
sites, in doing so, the Deferral Rule also constituted the first
time that the EPA maintained in a final agency action that such
construction activities were subject to the permit requirements
of the CWA. In response, in their petition filed in the Fifth
Circuit, the Oil and Gas Petitioners argued that the EPA lacked
4
The EPA in 64 Fed.Reg. 68,722 originally required permits by
March 10, 2003.
Nos. 03-3277, et al. 7
the authority to require permits for oil and gas construction
activities based on § 402(l)(2) of the CWA. Section 402(l)(2)
expressly prohibited the EPA from requiring a § 402 permit for
storm water discharges for oil and gas activities unless the
discharges were contaminated by contact with materials
located on the site of such operations. 33 U.S.C. § 1342(l)(2).
After filing a petition for review of 68 Fed.Reg. 11,325, the
EPA issued 70 Fed.Reg. 2832 (Jan. 18, 2005), which extended
the deadline until March 10, 2005, and then in 70 Fed.Reg.
11,560 (March 9, 2005), the EPA extended the deadline again
until June 12, 2006. On June 16, 2005, the Fifth Circuit issued
its ruling, holding that the Oil and Gas Petitioners’ challenge
to the Deferral Rule was not ripe for review. 413 F.3d at 484.
The Fifth Circuit reasoned: “Given that EPA has specifically
stated its intent to examine, during the Deferral Period, the
issue of ‘how best to resolve questions posed by outside
parties regarding section 402(l)(2) of the Clean Water Act,’ any
interpretation we would provide would necessarily prema-
turely cut off EPA’s interpretive process.” Id. at 483.
Following the Fifth Circuit’s decision, this court directed the
parties to file supplemental briefing on the issue of ripeness
and the import of the Fifth Circuit’s decision, later extending
the briefing schedule, pursuant to the parties’ request, until
September 9, 2005. Before briefing was completed, Congress
passed the Energy Policy Act of 2005, signed into law on
August 8, 2005. Energy Policy Act of 2005, Pub. L. No. 109-58,
§ 323, 119 Stat. 594, 694 (2005). Among other things, the
Energy Policy Act amended the CWA’s definition of oil and
gas exploration, providing:
Section 502 of the Federal Water Pollution Control Act (33
U.S.C. § 1362) is amended by adding at the end the follow-
ing:
(24) OIL AND GAS EXPLORATION AND PRODUC-
TION.—
8 Nos. 03-3277, et al.
The term “oil and gas exploration, production, processing
or treatment operations or transmission facilities” means
all field activities or operations associated with explora-
tion, production, processing, or treatment operations, or
transmission facilities, including activities necessary to
prepare a site for drilling and for the movement and
placement of drilling equipment, whether or not such field
activities or operations may be considered to be construction
activities.
Energy Policy Act of 2005, Pub. L. No. 109-58, § 323, 119 Stat.
594, 694 (2005) (emphasis added).
Based on the Energy Policy Act’s amendment to the defini-
tion of oil and gas exploration, the Oil and Gas Petitioners
filed with this court a “Motion to Dismiss Without Prejudice.”
In their motion, the Oil and Gas Petitioners argued that their
petition was moot because revised Section 502(24) made clear
that they cannot be required to obtain coverage under the
General Permit for uncontaminated discharges from oil and
gas construction sites. However, the “Oil and Gas Petitioners
request[ed] that the dismissal be without prejudice because
EPA has not yet taken a position as to the impact of the Energy
Policy Act of 2005 on the permit requirement or this litigation,
and the Oil and Gas Petitioners should be able to raise these
claims if EPA were to interpret the Energy Policy Act of 2005
to . . . require permits for uncontaminated discharges from oil
and gas sites. . . .”
Concerned about the propriety of a dismissal without
prejudice, given that 33 U.S.C. § 1369(b)(1) requires petitions
to be filed within 120 days of the Final Rule, we requested
supplemental briefing. The EPA responded that based upon 33
U.S.C. § 1369(b)(1), the deadline for filing a petition challeng-
ing the General Permit passed in October 2004, and that a
dismissal without prejudice was tantamount to a dismissal
with prejudice because any future challenge by the Oil and
Gas Petitioners would be untimely. Based on the EPA’s
Nos. 03-3277, et al. 9
position that the Oil and Gas Petitioners could not challenge
the terms of the General Permit at a later date, the Oil and Gas
Petitioners requested this court to deny their Motion to
Dismiss Without Prejudice, seeking instead resolution of their
underlying petition. The EPA did not object to the Oil and Gas
Petitioners’ request that we deny its motion to dismiss.
Accordingly, on October 6, 2005, this court denied the Oil and
Gas Petitioners’ motion to dismiss without prejudice, and
directed the parties to complete the supplemental briefing
previously ordered and stayed pending resolution on the
motion to dismiss, and to also brief the newly raised issue of
mootness. Having received and reviewed the parties’ supple-
mental briefs, we now consider the Oil and Gas Petitioners’
petition.
II.
In their petition, the Oil and Gas Petitioners challenged
various aspects of the General Permit as applied to uncontami-
nated discharges. The Oil and Gas Petitioners do not object to
the General Permit to the extent that it applies only to contam-
inated discharges, as defined by the EPA. Rather, the Oil and
Gas Petitioners claim that as to uncontaminated discharges,
the General Permit’s definitions of “common plan” and “final
stabilization” are so broad, ambiguous, and vague that the
General Permit violates their rights to due process because
they do not know if they need to apply for a General Permit
for uncontaminated discharges. The Oil and Gas Petitioners
also argued that the EPA acted arbitrarily and capriciously in
establishing the terms of the General Permit related to uncon-
taminated discharges, without accounting for the differences
between construction activities at general construction sites
and at oil and gas sites. However, before we can address the
merits of the Oil and Gas Petitioners’ challenge, we must first
determine whether the parties have standing to sue. Texas
Indep. Producers, 410 F.3d at 970-71.
10 Nos. 03-3277, et al.
The CWA authorizes any “interested person” to obtain
review of an EPA action in a Circuit Court. 33 U.S.C.
§ 1369(b)(1)(F). To qualify as an “interested person,” at a
minimum, a party must have Article III standing. Texas Indep.
Producers, 410 F.3d at 971 (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)). Generally, this requires a peti-
tioner to “demonstrate an injury in fact; a causal link between
the injury and the challenged action; and redressability
through a favorable court decision.” Texas Indep. Producers, 410
F.3d at 971 (citing Lujan, 504 U.S. at 561). Moreover, because
the Oil and Gas Petitioners are organizations, to demonstrate
standing, they must show that they represent members who
have standing in their own right. See Texas Indep. Producers, 410
F.3d at 971.
In their original brief before this court, the Oil and Gas
Petitioners made only passing reference to standing, merely
stating that they have standing because their members are
regulated under the General Permit. However, the Oil and Gas
Petitioners also asserted that they were not required to obtain
a permit for uncontaminated discharges. If true, that would
mean that the Oil and Gas Petitioners’ members would not be
injured by the terms of the General Permit that they seek to
challenge. In its supplemental briefing, the EPA agrees that if
the Oil and Gas Petitioners are not subject to the NPDES
permit requirements for storm water discharges from con-
struction activities, then their challenges to the General Permit
are no longer justiciable. Thus, before we can consider the Oil
and Gas Petitioners’ challenges to the terms of the General
Permit, we must initially determine whether the Oil and Gas
Petitioners are subject to the General Permit for uncontami-
nated discharges.
The Oil and Gas Petitioners maintain in their supplemental
briefing that, following passage of the Energy Policy Act of
2005, they are definitively not subject to the General Permit for
Nos. 03-3277, et al. 11
5
uncontaminated discharges. We agree. As noted above, the
CWA expressly provides that:
The Administrator shall not require a permit under this
section, nor shall the Administrator directly or indirectly
require any State to require a permit, for discharges of storm
water runoff from mining operations or oil and gas exploration,
production, processing, or treatment operations or transmission
facilities, composed entirely of flows which are from
conveyances or systems of conveyances (including but not
limited to pipes, conduits, ditches, and channels) used for
collecting and conveying precipitation runoff and which
are not contaminated by contact with, or do not come into
contact with any overburden, raw material, intermediate
products, finished product, byproduct, or waste products
located on the site of such operations.
33 U.S.C. § 1342(l)(2) (emphasis added).
After the EPA issued its Deferral Rule purporting to regulate
construction activities at oil and gas sites, Congress responded
by passing the Energy Policy Act of 2005, which expressly
addressed the issue, providing:
The term “oil and gas exploration, production, processing
or treatment operations or transmission facilities” means
all field activities or operations associated with explora-
tion, production, processing, or treatment operations, or
transmission facilities, including activities necessary to
prepare a site for drilling and for the movement and
placement of drilling equipment, whether or not such field
5
The Oil and Gas Petitioners maintain that even prior to the
passage of the Energy Policy Act of 2005, Section 402(1)(2)
exempts them from the permit requirements of the CWA, but add
that the Energy Policy Act of 2005 now resolves the issue beyond
dispute.
12 Nos. 03-3277, et al.
activities or operations may be considered to be construction
activities.
Energy Policy Act of 2005, Pub. L. No. 109-58, § 323, 119 Stat.
594, 694 (2005) (emphasis added).
Given the broad definition of exempt activities for uncon-
taminated discharges and Congress’s explicit clarification that
the exemption applied even if those activities constitute
construction activities, we conclude that the Oil and Gas
Petitioners lack standing. Because the record establishes only
that the Oil and Gas Petitioners represent members involved
in oil and gas exploration and related activities and they
challenge only uncontaminated discharges which are exempt
from the permitting requirements, the Oil and Gas Petitioners
cannot establish that the General Permit injured its members.
The EPA does not challenge the Oil and Gas Petitioners’
analysis of the § 402(l)(2) exemption. In fact, notwithstanding
this court’s order directing the EPA to address whether the
Energy Policy Act of 2005 exempts the Oil and Gas Petitioners
from the permitting requirements of the CWA, the EPA failed
to address that issue. That is especially troubling since the EPA
correctly noted in its supplemental brief that “[a]n actual
controversy must exist at all stages of the case, not merely at
the time the case is filed.” The EPA further recognized that this
means that this “Court must determine whether some mem-
bers of the Oil and Gas Petitioners are still injured by the terms
of the General Permit following enactment of the Energy
Policy Act of 2005 before resolving the merits of their peti-
tion.” But then, rather than provide an analysis of the issue,
much less take a position, the EPA instead stated that it
“recognizes that the recently enacted Energy Policy Act of 2005
affects the NPDES permitting requirements applicable to oil
and gas activities [and the] EPA intends to take into account
Nos. 03-3277, et al. 13
6
this new law in forthcoming rulemaking . . . .”
On January 6, 2006, the EPA filed with this court as supple-
mental authority its proposed administrative action titled
“Amendments to the National Pollutant Discharge Elimination
System (NPDES) Regulations for Storm Water Discharges
Associated with Oil and Gas Exploration, Production, Process-
ing, or Treatment Operations, or Transmission Facilities.” 71
Fed.Reg. 894 (Jan. 6, 2006). “This proposed regulation would
implement Congress’ intention, in the Energy Policy Act of
7
2005, to exclude virtually all oil and gas construction activities
from regulation under the NPDES storm water program.” 71
Fed.Reg. at 897. This raises the issue of ripeness. In determin-
ing whether a case is ripe for review, this court considers
whether: (1) delayed review of an agency decision could cause
hardship to the petitioner; (2) judicial intervention would
inappropriately interfere with further administrative action;
and (3) the court would benefit from further factual develop-
ment of the issues presented. Ohio Forestry Ass’n, Inc. v. Sierra
Club, 523 U.S. 726, 733 (1998). Applying these three factors, the
Fifth Circuit concluded that the Oil and Gas Petitioners’
challenge to the Deferral Rule was not ripe because the EPA
6
In passing, the EPA also posits, without support, that since the
Petitioners must obtain a permit for contaminated discharges,
they have standing to challenge the terms of the General Permit.
However, the Petitioners do not claim any injury flowing from
the General Permit where contaminated discharges are involved.
Rather, the Petitioners argue that the broad language of the
General Permit, when applied to non-contaminated discharges,
violates their due process rights and is arbitrary and capricious.
To assess standing, then, we must ask whether the Petitioners are
injured in the way they assert—not whether they would have
standing to present a different claim.
7
The only activities not exempt would be contaminated dis-
charges. 71 Fed.Reg. at 897.
14 Nos. 03-3277, et al.
has specifically stated its intent to examine, during the
Deferral Period, the issue of “how best to resolve questions
posed by outside parties regarding section 402(l)(2) of the
Clean Water Act . . . .” 413 F.3d at 483. Although the EPA had
sought dismissal on ripeness grounds in the Fifth Circuit, in its
supplemental briefing before this court, the EPA asserts that
the Oil and Gas Petitioners’ claim is ripe for review. We agree
for several reasons.
First, as the EPA recognized, the Fifth Circuit’s decision
addressed only the EPA’s rule deferring NPDES permitting
deadlines for construction activities at small oil and gas sites.
413 F.3d at 481. Because those deadlines would not go into
effect for a year, the Fifth Circuit reasoned that there is no
immediacy for resolution, and thus no hardship to the peti-
tioners. Id. at 484. In contrast, the permitting requirements for
large construction activities are currently in force. 55 Fed.Reg.
47,990, 48,066 (Nov. 16, 1990) (adopting Phase I, and requiring
NPDES permits for storm water discharges from construction
activities involving five or more acres). See Texas Indep.
Producers, 410 F.3d at 968. Moreover, the General Permit the
Oil and Gas Petitioners seek to challenge applies to uncontam-
inated storm water discharges from both small and large
construction activities. Thus, the immediacy lacking in the
Fifth Circuit case is present here.
Second, withholding of judicial review of the Oil and Gas
Petitioners’ challenge presents a significant hardship to the
Petitioners’ members. The EPA itself acknowledges this
hardship, explaining, “[w]ithholding court consideration of
the Oil and Gas Petitioners’ current challenge would likely
preclude them from seeking judicial review of the General
Permit in the future.” This again contrasts with the Fifth
Circuit decision in which no such hardship existed. Moreover,
given the breadth of the statutory exemption, further factual
development is unnecessary. Finally, while in some circum-
stances it would make sense to await final agency action, given
Nos. 03-3277, et al. 15
Congress’s clear directive this is not such a case. The agency
can no longer require permits for uncontaminated discharges
from construction activities undertaken pursuant to oil and
gas “field activities or operations associated with exploration,
production, processing, or treatment operations, or transmis-
8
sion facilities.” Energy Policy Act of 2005, Pub. L. No. 109-58,
§ 323, 119 Stat. 594, 694 (2005). Cf. Solid Waste Agency of N. Cook
County v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 174 (2001)
(striking a regulation promulgated by the Corps because it
exceeded the statutory authority granted it by Congress in the
CWA). Therefore, given the limited circumstances before us,
and because a refusal to consider their petition would cause
substantial hardship to the petitioners, this case is ripe for
review. However, as discussed above, our review discloses
that the terms of the General Permit which the Oil and Gas
Petitioners challenge do not apply to them. Therefore, because
those terms do not injure any of their members, they lack
standing.
III.
The Oil and Gas Petitioners sought review of the General
Permit as applied to uncontaminated discharges. However,
since filing their petition, Congress made clear that oil and gas
construction activities undertaken pursuant to “field activities
or operations associated with exploration, production, process-
ing, or treatment operations, or transmission facilities,” are
exempt from the permitting requirements for uncontaminated
discharges. The Oil and Gas Petitioners represent members
seeking to challenge the permit requirements for uncontami-
nated discharges. But Congress made clear in the Energy
Policy Act of 2005 that the EPA may not require permits for
such discharges. Therefore, the Oil and Gas Petitioners cannot
8
The proposed administrative action recognizes as much. 71
Fed.Reg. 894 (Jan. 6, 2006).
16 Nos. 03-3277, et al.
establish standing. Accordingly, we DISMISS this petition for
lack of standing.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-27-06