Food and Water Watch v. United States Environmental Protection Agency , 5 F. Supp. 3d 62 ( 2013 )


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  •                             UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    FOOD AND WATER WATCH and                          :
    FRIENDS OF THE EARTH                              :
    :
    Plaintiffs,                                :      Civil Action No.:      12-1639 (RC)
    :
    v.                                         :      Re Document Nos.:      35, 36
    :
    UNITED STATES ENVIRONMENTAL                       :
    PROTECTION AGENCY and                             :
    BOB PERCIASEPE, Acting Administrator              :
    :
    Defendants.                                :
    MEMORANDUM OPINION
    GRANTING DEFENDANTS’ MOTIONS TO DISMISS
    I. INTRODUCTION
    The plaintiffs in this action challenge the Environmental Protection Agency’s (“EPA”)
    “authorization” of pollution trading and offsets outlined in its 2010 Chesapeake Bay Total
    Maximum Daily Loads (“Bay TMDL”). They allege that the “authorization” of pollution trading
    and offsets is contrary to the Clean Water Act, and arbitrary and capricious in violation of the
    Administrative Procedure Act (“APA”). They also allege that the “authorization” of pollution
    trading and offsets violates the APA’s requirement for Notice and Comment Rulemaking. The
    defendants and defendant-intervenors1 moved to dismiss the Complaint for lack of subject matter
    1
    The Court granted two motions to intervene in this case on February 1, 2013:
    collectively to the American Farm Bureau Federation and the National Association of Home
    Builders, and collectively to the National Association of Clean Water Agencies, Virginia
    Association of Municipal Wastewater Agencies, Virginia Nutrient Credit Exchange Association,
    Inc., Maryland Association of Municipal Wastewater Agencies, Inc., North Carolina Water
    jurisdiction because, they allege, the plaintiffs do not have standing. In addition, the defendants
    moved to dismiss the Complaint for failure to state a claim because, they allege, the plaintiffs do
    not challenge a final agency action in this case. For the reasons that follow, the Court will grant
    the defendants’ motions to dismiss on both grounds.
    II. FACTUAL BACKGROUND
    A. Statutory Background
    The Clean Water Act (“CWA”) was implemented to “restore and maintain the chemical,
    physical, and biological integrity of the Nation’s waters.” 
    33 U.S.C. § 1251
     (a). The Act
    contemplates collaborative efforts between the Federal Government, through the EPA, and State
    governments “to develop comprehensive solutions to prevent, reduce, and eliminate pollution in
    concert with programs for managing water resources.” 
    Id.
     § 1251(g).
    The CWA specifies that “the discharge of any pollutant by any person shall be unlawful.”
    
    33 U.S.C. § 1311
    (a). The CWA recognizes two types of pollutant sources: point and nonpoint.
    Point sources are defined in the CWA as “any discernible, confined, and concrete conveyance,
    including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure . . .
    from which pollutants are or may be discharged.” 
    33 U.S.C. § 1362
    (14). Nonpoint sources are
    not defined in the CWA, but in the regulations promulgating it, and are defined as “not traceable
    to a discrete identifiable origin, but [as] generally result[ing] from land runoff, precipitation,
    drainage, or seepage.” 
    40 C.F.R. § 35.1605-4
    .
    Quality Association, Inc., the West Virginia Municipal Water Quality Association, Inc., and
    CSO Partnership, Inc. See ECF No. 19. Though the latter group filed an answer, it never filed
    any dispositive motions, only the former group did. ECF Nos. 20, 34, 35. The latter group of
    intervenors will nevertheless still be bound by this Court’s judgment. See Schneider v.
    Dumbarton Developers, Inc., 
    767 F.2d 1007
    , 1017 (D.C. Cir. 1985) (“When a party intervenes, it
    becomes a full participant in the lawsuit and is treated just as if it were an original party. The
    intervenor renders itself ‘vulnerable to complete adjudication by the federal court of the issues in
    litigation between the intervenor and the adverse party.’” (citation omitted)).
    2
    There are two main ways the CWA controls the discharge of these two sources into
    navigable waters of the United States: through technology-based controls and through water
    quality standards. See, e.g., Bravos v. Green, 
    306 F. Supp. 2d 48
    , 50-51 (D.D.C. 2004). The
    main technology-based regulation implemented by the CWA is the National Pollutant Discharge
    Elimination System (“NPDES”). That system only regulates point sources, and does so by
    allowing the EPA Administrator, and/or the States, to issue permits for the discharge of a point
    source pollutant. 
    33 U.S.C. § 1342
    . The regulations implementing the NPDES system specify
    that “no permit may be issued [w]hen the conditions of the permit do not provide for compliance
    with the applicable requirements of CWA, or regulations promulgated under CWA.” 
    40 C.F.R. § 122.4
    (a). States are authorized to adopt programs for issuing permits to point sources, but the
    EPA retains the authority to object to an inadequate State permit and to issue a federal permit
    instead. 
    33 U.S.C. § 1342
    (d). The anti-backsliding provision of the permit system provides that
    “a permit may not be renewed, reissued, or modified on the basis of effluent guidelines . . . to
    contain effluent limitations2 which are less stringent than the comparable effluent limitations in
    the previous permit.” 
    33 U.S.C. § 1342
    (o).
    The other main way the CWA seeks to control the discharge of pollutants, point source
    and nonpoint source alike, is through the water quality standards (“WQS”) process outlined in
    Section 303 of the CWA, and codified in 
    33 U.S.C. § 1313
    . Section 1313 specifies that “each
    State shall identify those waters within its boundaries for which the effluent limitations . . . are
    not stringent enough to implement any water quality standard applicable to such waters.” 33
    2
    In order to carry out the objectives of the CWA, “there shall be achieved . . .
    effluent limitations. . . .” 
    33 U.S.C. § 1311
    (b)(1)(A). “Effluent limitation means any restriction
    imposed by the Director on quantities, discharge rates, and concentrations of ‘pollutants’ which
    are ‘discharged’ from ‘point sources’ into the ‘waters of the United States.’” See 
    40 C.F.R. § 122.2
    .
    
    3 U.S.C. § 1313
    (d)(1)(A). “Each State shall [also] establish for the waters identified in paragraph
    (1)(A) . . . the total maximum daily load (“TMDL”), for those pollutants which the Administrator
    identifies . . . as suitable for such calculation.” 
    Id.
     § 1313(d)(1)(C). The regulations
    implementing the CWA specify that States are to “identify those water quality-limited segments
    (“WQLS”)3 still requiring TMDLs within its boundaries for which technology-based effluent
    limitations . . . are not stringent enough to implement any water quality standards applicable to
    such waters.” 
    40 C.F.R. § 130.7
    (b)(1)(i)-(iii).
    Under § 1313(d)(2), the State shall submit to the Administrator the waters identified and
    the loads established in sections (1)(A), (1)(B), and (1)(C), and the Administrator shall either
    approve those identifications and loads, or if the Administrator does not approve the
    identifications and loads, the Administrator “shall identify such waters in such State and
    establish such loads for such waters as he determines necessary to implement the water quality
    standards applicable to such waters,” and then the State shall incorporate them into its
    “continuing planning process,” as codified in § 1313(e). See 
    33 U.S.C. § 1313
    (d)(2). Each State
    is to “have a continuing planning process” to ensure that it comports with the TMDL that either
    it, or the EPA sets. See 
    33 U.S.C. § 1313
    (e).
    Though there is no NPDES analogue for nonpoint sources, the EPA can use federal
    grants to encourage states to address nonpoint source pollution and implement the load
    allocations established in a TMDL. See 
    33 U.S.C. § 1329
    (h). See also Chesapeake Bay TMDL
    ES-8 (“nonpoint sources are not covered by a similar federal permit program; as a result,
    3
    A water quality limited segment is defined as “[a]ny segment where it is known
    that water quality does not meet applicable water quality standards, and/or is not expected to
    meet applicable water quality standards, even after the application of the technology-based
    effluent limitations required by sections 301(b) and 306 of the Act.” 
    40 C.F.R. § 130.2
    (j).
    4
    financial incentives, other voluntary programs and state-specific regulatory programs are used to
    achieve nonpoint source reductions”).
    Because this action arises specifically from the EPA’s establishment of the Chesapeake
    Bay TMDL, it is useful to describe what, exactly, a TMDL is. A TMDL is the “total maximum
    daily load” of a given pollutant that can be added into a navigable water of the United States on a
    given day. It essentially “identifies the maximum amount of a pollutant that can be added to a
    body of water consistent with attaining applicable water quality standards.” EPA’s Mot. to
    Dismiss 4, ECF No. 36. The way this number is calculated is defined in 
    40 C.F.R. § 130.2
    (i),
    and it turns largely on the amount of point and nonpoint sources of pollution in that particular
    body of water. “The portion of a receiving water’s loading capacity that is allocated to one of its
    existing or future point sources of pollution” is known as the wasteload allocation (“WLA”). 
    40 C.F.R. § 130.2
    (h) (emphasis added). “The portion of a receiving water’s loading capacity that is
    attributed either to one of its existing or future nonpoint sources of pollution” is known as the
    load allocation (“LA”). 
    Id.
     § 130.2(g) (emphasis added). The TMDL is the sum of the LA and
    the WLA, plus a “margin of safety.” Id. § 130.2(i); 
    33 U.S.C. §§ 1313
    (d)(1)(C), (d)(1)(D). See
    also Chesapeake Bay TMDL 1-2.
    B. The Chesapeake Bay TMDL
    The Chesapeake Bay is the largest estuary in the United States and one of the largest and
    most biologically productive estuaries in the world. See Chesapeake Bay Protection and
    Restoration, 
    74 Fed. Reg. 23,099
    , 23,099 (May 12, 2009). Unfortunately, and despite
    decades-long efforts by federal and state regulators, the Bay remains widely polluted, which has
    prevented “the attainment of existing State water quality standards and the ‘fishable and
    swimmable’ goals of the Clean Water Act.” See 
    id.
     The main pollutants in the Bay are nitrogen,
    5
    phosphorus and sediment. See Chesapeake Bay TMDL 2-7, ECF No. 36-1.4 These pollutants
    generally come from point sources such as municipal wastewater facilities and industrial
    discharge facilities; and from nonpoint sources such as agricultural lands and other runoff. See
    
    id. at 4-1
    .
    On December 29, 2010, the EPA established the Chesapeake Bay TMDL because the
    State TMDLs were not achieving the water quality standards mandated by the CWA. See
    Chesapeake Bay TMDL ES-1. The TMDL establishes final load allocations (from both point
    and nonpoint sources of pollution) for the entire Chesapeake Bay and it “identifies the necessary
    pollution reductions of nitrogen, phosphorus, and sediment across Delaware, Maryland, New
    York, Pennsylvania, Virginia, West Virginia, and the District of Columbia and sets pollution
    limits necessary to meet applicable water quality standards in the Bay and its tidal rivers and
    embayments.” Chesapeake Bay TMDL ES-1.
    Because the finality and legality of the TMDL are in dispute in this case, it is helpful to
    outline several of its key provisions. The Executive Summary of the TMDL explains EPA’s
    process in establishing the numbers set out in the TMDL. See Chesapeake Bay TMDL ES-1‒5.
    EPA collaborated with the Chesapeake Bay jurisdictions (Delaware, Maryland, Virginia,
    Pennsylvania, New York, West Virginia, and the District of Columbia) to arrive at the various
    loading allocations. Each State submitted its own Watershed Implementation Plan (“WIP”) that
    details how each State will implement the TMDL in its own State to achieve its jurisdiction-
    specific pollutant loading allocations. The EPA and the Bay jurisdictions went back-and-forth
    exchanging drafts of loading allocations, and the draft TMDL was published for a 45-day public
    comment period. The EPA then evaluated each State’s WIP, along with all the public comments
    4
    also available at http://www.epa.gov/reg3wapd/tmdl/ChesapeakeBay
    /tmdlexec.html.
    6
    to arrive at the TMDL it finally published on December 29, 2010. 
    Id.
     at ES-5. The WIPs “are
    the roadmap for how the jurisdictions, in partnership with federal and local governments, will
    achieve and maintain the Chesapeake Bay TMDL nitrogen, phosphorus, and sediment
    allocations.” 
    Id. at 7-6
    .
    Section 10 of the TMDL, whose provisions are most in dispute in this case, outlines
    EPA’s expectations for how States will keep pollution levels down despite future population
    growth. Section 10 begins by discussing offsets, which “[f]or purposes of the Chesapeake Bay
    TMDL, means . . . compensating for the loading of a pollutant of concern from a point or
    nonpoint source with a reduction in the loading from a different source or sources, in a manner
    consistent with meeting WQS.” Chesapeake Bay TMDL, Appendix S-2. Section 10.1.2 notes
    that the “EPA expects that new or increased loadings of nitrogen, phosphorus, and sediment in
    the Chesapeake Bay that are not specifically accounted for in the TMDL’s WLA or LA will be
    offset by loading reductions and credits generated by other sources . . . .” 
    Id. at 10-1
     (emphasis
    added). The EPA also states that it “encourages and expects that the jurisdictions will generally
    develop and implement programs for offsetting new and increased loadings consistent with the
    definitions and common elements described in Appendix S . . . .” 
    Id.
     (emphasis added).
    Section 10.2 covers water quality trading. The EPA has defined trading as an approach
    that “allows one source to meet its regulatory obligations by using pollutant reductions created
    by another source that has lower pollution control costs. Trading capitalizes on economies of
    scale and the control cost differentials among and between sources.” See United States
    Environmental Protection Agency, Final Water Quality Trading Policy 1, January 13, 2003
    (“Final Water Quality Trading Policy”).5 With respect to water quality trading, “EPA recognizes
    5
    available at http://water.epa.gov/type/watersheds/trading/upload
    7
    that a number of Bay jurisdictions already are implementing water quality trading programs.
    EPA supports implementation of the Bay TMDL through such programs, as long as they are
    established and implemented in a manner consistent with the CWA, its implementing regulations
    and the EPA’s Water Quality Trading Policy and 2007 Water Quality Trading Toolkit for
    NPDES Permit Writers.” 
    Id. at 10-3
     (emphasis added). The EPA also states that “an assumption
    of this TMDL is that trades may occur between sources contributing pollutant loadings to the
    same or different Bay segments, provided such trades do not cause or contribute to an
    exceedance of WQS in either receiving segment or anywhere else in the Bay watershed.” 
    Id.
    (emphasis added). In addition, EPA notes that it “does not support any trading activity that
    would delay or weaken implementation of the Bay TMDL that is inconsistent with the
    assumptions and requirements of the TMDL.” 
    Id.
    Appendix S of the TMDL outlines the common elements from which the EPA “expects”
    the jurisdictions to develop and implement offset programs. See 
    id.
     at S-1‒S-2. Appendix S
    goes on to note that, “[t]hose common elements are not presented here as regulatory
    requirements. However, EPA believes that in the aggregate, they will help to ensure that offsets
    are achieved through reliable pollution controls and that the goals of the Bay TMDL are met
    . . . .” 
    Id.
     (emphasis added).
    The EPA’s authority to oversee such a comprehensive management plan stems in part
    from 
    33 U.S.C. § 1313
    (e) and in part from 
    33 U.S.C. § 1267
    (g), which states that the
    “Administrator, in coordination with other members of the Chesapeake Executive Council, shall
    ensure that management plans are developed and implementation is begun by signatories to the
    /2008_09_12_watershed_trading_finalpolicy2003.pdf.
    8
    Chesapeake Bay Agreement to achieve and maintain” the goals of the Chesapeake Bay
    Agreement.6
    C. Plaintiffs’ Allegations
    Plaintiff Food and Water Watch is a non-profit organization that advocates for common
    sense policies that will result in access to safe and healthy food and clean water. Am. Compl.
    ¶ 6, ECF No. 29. Its “members live, work, recreate, and own property in the lands and waters of
    the Chesapeake Bay watershed.” Am. Compl. ¶ 7. Plaintiff Friends of the Earth, Inc., is a non-
    profit environmental advocacy organization whose “mission is to defend the environment and
    champion a healthy and just world.” Am. Compl. ¶ 8. Its members also live near and enjoy the
    area surrounding the Chesapeake Bay watershed. Am. Compl. ¶ 9. Plaintiffs allege that the
    Chesapeake Bay TMDL reflects the EPA’s “authorization” of offsets and water pollution trading
    and that such “authorization of pollution trading is unlawful, arbitrary and capricious.” Am.
    Compl. ¶¶ 88-96. In addition, they allege that “EPA’s authorization of offsets for new and
    expanded pollutions sources is unlawful, arbitrary and capricious” and that “EPA’s authorization
    of pollution trading and offsets violates notice and comment requirements under the APA.” Am.
    Compl. ¶¶ 101-123.
    Because of this “authorization,” plaintiffs allege that their members’ ability to enjoy the
    Chesapeake Bay will be impaired. For instance, Food and Water Watch member Paul Stern
    “lives near a new point source that will be allowed to discharge if and when it identifies offsets
    6
    The term “Chesapeake Bay Agreement” means “the formal, voluntary agreements
    executed to achieve the goal of restoring and protecting the Chesapeake Bay ecosystem and the
    living resources of the Chesapeake Bay ecosystem and signed by the Chesapeake Executive
    Council.” See 
    33 U.S.C. § 1267
    (a)(2). The EPA explained in the TMDL that “[i]n establishing
    the Bay TMDL, EPA acted pursuant to the consensus direction of the Chesapeake Executive
    council’s PSC [principal’s staff committee] and in partnership with each of the seven
    Chesapeake Bay watershed jurisdictions.” See Chesapeake Bay TMDL at 1-16.
    9
    as required by the TMDL.” Pl.’s Opp. Mot. to Dismiss 15, Stern Decl. ¶ 6, ECF No. 39-1.
    Another member, Fred Tutman, alleges that “EPA’s authorization of pollution trading has and
    will diminish his enjoyment of the beauty and natural resources of the Chesapeake Bay.” Pl.’s
    Opp. Mot. to Dismiss 15, Tutman Decl. ¶ 5, ECF No. 39-5. Additionally, plaintiffs’ members
    generally “are all concerned about the creation of hot[ ]spots in the Bay watershed where high
    levels of pollution will exacerbate existing impairments.” Pl.’s Opp. Mot. to Dismiss 16, ECF
    No. 39. They allege that “hotspots” are “created when one source increases its discharges into a
    water body because it has purchased pollution credits from another source that has allegedly
    decreased its discharges.” Pl.’s Opp. Mot. to Dismiss 14. The defendants have moved to
    dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, and under Fed. R.
    Civ. P. 12(b)(6) for failure to state a claim. The Court now turns to the relevant legal standards.
    III. ANALYSIS
    A. Legal Standards
    1. Motion to Dismiss for Lack of Subject Matter Jurisdiction (12(b)(1))
    Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies
    outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 
    511 U.S. 375
    ,
    377 (1994); see also Gen. Motors Corp. v. E.P.A., 
    363 F.3d 442
    , 448 (D.C. Cir. 2004) (“As a
    court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). It is
    the plaintiff’s burden to establish that the court has subject matter jurisdiction. Lujan v.
    Defenders of Wildlife, 
    504 U.S. 555
    , 561 (1992).
    Because subject matter jurisdiction focuses on the Court’s power to hear a claim, the
    Court must give the plaintiff’s factual allegations closer scrutiny than would be required for a
    12(b)(6) motion for failure to state a claim. See Grand Lodge of Fraternal Order of Police v.
    10
    Ashcroft, 
    185 F. Supp. 2d 9
    , 13 (D.D.C. 2001). Thus, the court is not limited to the allegations
    contained in the complaint. See Wilderness Soc’y v. Griles, 
    824 F.2d 4
    , 16 n.10 (D.C. Cir.
    1987). Instead, “where necessary, the court may consider the complaint supplemented by
    undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus
    the court’s resolution of disputed facts.” Herbert v. Nat’l Acad. of Scis., 
    974 F.2d 192
    , 197 (D.C.
    Cir. 1992) (citing Williamson v. Tucker, 
    645 F.2d 404
    , 413 (5th Cir. 1981)).
    The D.C. Circuit has explained that a motion to dismiss for lack of standing constitutes a
    motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure because “the defect of
    standing is a defect in subject matter jurisdiction.” Haase v. Sessions, 
    835 F.2d 902
    , 906 (D.C.
    Cir. 1987). See also City of Harper Woods Employees’ Retirement Sys. v. Olver, 
    577 F. Supp. 2d 124
    , 128 (D.D.C. 2008) (“In this jurisdiction, a motion to dismiss for lack of standing is treated
    as a challenge to the subject matter jurisdiction of the court, and is properly analyzed under Rule
    12(b)(1).”).
    2. Motion to Dismiss for Failure to State a Claim (12(b)(6))
    The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
    statement of the claim” in order to give the defendant fair notice of the claim and the grounds
    upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 
    551 U.S. 89
    , 93 (2007)
    (per curiam). A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate
    likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim.
    See Scheuer v. Rhodes, 
    416 U.S. 232
    , 236 (1974), abrogated on other grounds by Harlow v.
    Fitzgerald, 
    457 U.S. 800
     (1982). A court considering such a motion presumes that the
    complaint’s factual allegations are true and construes them liberally in the plaintiff’s favor. See,
    e.g., United States v. Philip Morris, Inc., 
    116 F. Supp. 2d 131
    , 135 (D.D.C. 2000). It is not
    11
    necessary for the plaintiff to plead all elements of her prima facie case in the complaint. See
    Swierkiewicz v. Sorema N.A., 
    534 U.S. 506
    , 511–14 (2002); Bryant v. Pepco, 
    730 F. Supp. 2d 25
    ,
    28–29 (D.D.C. 2010).
    Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient
    factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
    v. Iqbal, 
    556 U.S. 662
    , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570
    (2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief
    above the speculative level, on the assumption that all the allegations in the complaint are true
    (even if doubtful in fact).” Twombly, 
    550 U.S. at
    555–56 (citations omitted). “Threadbare
    recitals of the elements of a cause of action, supported by mere conclusory statements,” are
    therefore insufficient to withstand a motion to dismiss. Iqbal, 
    556 U.S. at 678
    . A court need not
    accept a plaintiff’s legal conclusions as true, see 
    id.,
     nor must a court presume the veracity of the
    legal conclusions that are couched as factual allegations. See Twombly, 
    550 U.S. at 555
    .
    B. Standing
    The defendants first argue that the plaintiffs do not have standing to bring this case, and
    for that reason, the court lacks subject matter jurisdiction to hear it. In order to demonstrate
    Article III standing, a plaintiff must meet three requirements. First, “the plaintiff must have
    suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and
    particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 
    504 U.S. at 560
     (citations omitted). “Second, there must be a causal connection between the injury and the
    conduct complained of—the injury has to be fairly traceable to the challenged action of the
    defendant, and not the result of the independent action of some third party not before the court.”
    
    Id. at 560-561
     (citations omitted). Finally, “it must be likely, as opposed to merely speculative,
    12
    that the injury will be redressed by a favorable decision.” 
    Id. at 561
    . To establish standing to
    sue on behalf of its members, an organization must demonstrate that “its members would have
    standing to sue in their own right, the interests at stake are germane to the organization’s
    purpose, and neither the claim asserted nor the relief requested requires members’ participation
    in the lawsuit.” Consumer Fed’n of Am. v. F.C.C., 
    348 F.3d 1009
    , 1011 (D.C. Cir. 2003)
    (quoting Hunt v. Washington State Apple Adver. Comm’n, 
    432 U.S. 333
    , 343 (1977)).
    1. Injury
    With respect to the injury, “[a] prospective plaintiff must show that it has suffered a
    concrete and particularized injury in order to convince the court that it is sufficiently involved in
    the current legal dispute to have a defined and personal stake in the outcome of the litigation.”
    Fla. Audubon Soc’y v. Bentsen, 
    94 F.3d 658
    , 663 (D.C. Cir. 1996). The Supreme Court has
    “repeatedly reiterated that the threatened injury must be certainly impending to constitute injury
    in fact, and that allegations of possible future injury are not sufficient.” Clapper v. Amnesty
    Intern., USA, 
    133 S. Ct. 1138
    , 1147 (2013) (emphasis in original, internal quotation marks
    omitted). The plaintiffs allege that their members are “fearful of using waters contaminated by
    NPDES permit holders who discharge excess pollutants pursuant to trading and offset
    programs.” Am. Compl. ¶¶ 7, 9. To show that their injuries are particularized, the plaintiffs cite
    declarations by various members whose use and enjoyment of the Chesapeake Bay will be
    impaired because of EPA’s “authorization” of the offset and trading program. For instance, one
    member alleges that EPA’s “authorization” of pollution trading has and will diminish his
    enjoyment of the beauty and natural resources of the Chesapeake Bay, because the issuance of
    certain NPDES permits by state agencies will lead to the creation of “hotspots” and other over-
    polluted areas in the Bay. See Walls Decl. ¶ 25, ECF No. 39-3. Another individual member “is
    13
    concerned that increased pollution and sediments from new or increased discharges will impede
    his ability to enjoy” walking, hiking, and kayaking near the Chesapeake Bay. See Stern Decl. ¶¶
    11-12; see also Tutman Decl. ¶ 22. Such aesthetic, recreational injuries are cognizable injuries-
    in-fact. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envt’l. Svcs. (TOC), Inc., 
    528 U.S. 167
    ,
    183 (2000) (“environmental plaintiffs adequately allege injury in fact when they aver that they
    use the affected area and are persons for whom the aesthetic and recreational values of the area
    will be lessened by the challenged activity.” (citations omitted)); Sierra Club v. Morton, 
    405 U.S. 727
    , 734 (1972).
    The plaintiffs’ standing problem, however, is not the lack of a particularized injury7—it is
    the lack of an actual or imminent one. To show that their injury is actual or imminent, the
    plaintiffs allege, through declarations by their members, that their use and enjoyment of the
    Chesapeake Bay will be affected by the creation of “hotspots” once various state agencies start
    granting new or modified NPDES permits to would-be polluters. Pl.’s Opp. Mot. to Dismiss 14-
    16. The plaintiffs also allege that the West Virginia Department of Environmental Protection’s
    (“WVDEP”) granting of a “NPDES permit to Mountain Springs Utility is one such offset that
    injures Plaintiffs’ members.” Id. at 18. They also allege that WVDEP has “permitted a permit
    modification on an offset for the Jefferson County Public Service District,” and that Maryland
    “began a process to certify farms for credit generation.” Id. at 19.
    The creation of “hotspots” by the issuance of such permits is neither actual nor imminent.
    There is no indication that the trading and offset programs supported by—but not required or
    7
    To the extent the plaintiffs allege that their injury is a procedural one in that the
    EPA violated the APA’s notice-and-comment requirement (see Pl.’s Opp. Mot. to Dismiss 26,
    EPA’s Mot. to Dismiss 18), it is clear that “the deprivation of a procedural right without some
    concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient
    to create Article III standing.” Summers v. Earth Island Institute, 
    555 U.S. 488
    , 496 (2009).
    14
    “authorized” by—the EPA will result in the creation of “hotspots” of pollution. The plaintiffs
    offer no support beyond their own conclusory allegations that “hotspots” have been, or
    necessarily will be created by the offset and trading programs. They describe “hotspots” as areas
    “where increased discharges of pollutants will occur resulting in water quality that is worse than
    other areas in the watershed.”8 Id. at 14. However, all the provisions of the TMDL and the Bay
    jurisdictions’ WIPs specifically state that any implementation program must comply with the
    requirements of the CWA and the TMDL itself. 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
    WQS [water quality standard] in either receiving segment or anywhere else in the Bay
    watershed.” Chesapeake Bay TMDL at 10-3. Nor could any trading or offsetting occur if it
    would “delay or weaken implementation of the Bay TMDL, [or be] inconsistent with the
    assumptions and requirements of the TMDL.” Id. Nor could a permit issue “[w]hen the
    imposition of conditions cannot ensure compliance with the applicable water quality
    requirements of all affected States.” 
    40 C.F.R. § 122.4
    (d). As the defendants aptly note, the
    plaintiffs “fail to explain how any trading or offsets authorized by a State could override the
    [CWA’s] overarching command that a point source discharge that does not comply with a permit
    is a violation of the Act.” EPA’s Mot. to Dismiss 17, ECF No. 36. The creation of “hotspots”
    (to the extent such creation even results in an actionable injury) in other words, is highly
    speculative and therefore not “certainly impending” enough to show an actual or imminent injury
    for purposes of Article III. See Clapper, 
    133 S. Ct. at 1147
    .
    8
    Plaintiffs do not explain whether this term is a term of art that derives from the
    CWA, its implementing regulations, or the case law interpreting them. In fact, it is not clear that
    the creation of a “hotspot” necessarily violates the CWA.
    15
    Additionally, the plaintiffs’ complaints about the State agencies’ actions do not establish
    an actual or imminent injury. As the EPA points out in its reply brief, the WVDEP has rescinded
    the certificate of convenience and necessity for the Flowing Spring Wastewater Treatment Plant
    that the plaintiffs indicated would lead to an offset of 500 lbs/year of nitrogen downstream. See
    EPA’s Reply 15-16, ECF No. 42; West Virginia Department of Environmental Protection Letter
    from Scott Mandirola at 2, ECF No. 39-3 (explaining the modification of a permit for the
    Flowing Springs Wastewater Treatment Plant); EPA’s Reply Brief Ex. A, Public Service
    Commission of West Virginia Commission Order at 22, ECF No. 42-1 (ordering that “the
    District petition for approval of revised financing and post-project rates for its Flowing Springs
    Project is denied and the previously issued certificate of convenience and necessity for the
    Flowing Springs project is rescinded.” (emphasis added)). Therefore, the permit modification—
    issued in 2006, well before the creation of the TMDL—is moot because the plant whose loads it
    authorized will not be financed, and therefore will not be constructed.
    The Mountain Springs Utility also poses no injury to the plaintiffs—actually or
    imminently. The plaintiffs essentially note this themselves saying that the Utility will be allowed
    to discharge extra pollutants “once it identifies an offset.” Pl.’s Opp. Mot. to Dismiss 19
    (emphasis added). See also id. at 15 (“Paul Stern . . . lives near a new point source that will be
    allowed to discharge if and when it identifies offsets as required by the TMDL.” (emphasis
    added)). See also Stern Decl. ¶ 9 (“the agency does not allow any operation or discharge of any
    phosphorus or nitrogen from the wastewater treatment plant under any circumstances until
    appropriate offsets have been obtained” (emphasis added)). The permit the plaintiffs fear will
    cause increased levels of pollution, therefore, is not even in effect, and it will not be until the
    Utility identifies an offset that comports with the requirements of the Bay TMDL, and more
    16
    importantly the CWA. Thus, it is not “certainly impending” that any injurious discharges will
    occur if lawful offsets cannot be identified by the plant, and thus the plaintiffs may never suffer
    an injury. Moreover, and as set forth above, even if permitted discharges begin, there is no
    indication that such discharges will cause the plaintiffs any actionable injury. Each permit
    issuance and modification must comport with the requirements of the Bay TMDL and the CWA.
    See, e.g., Pl.’s Opp. Mot. to Dismiss, WVDEP letter, ECF No. 39-1 (“the nitrogen and
    phosphorus loadings associated with this new discharge must be offset so that there is no net
    increase in loading to the Chesapeake Bay”); 
    33 U.S.C. § 1342
    (o) (“a permit may not be
    renewed, reissued, or modified on the basis of effluent guidelines . . . to contain effluent
    limitations which are less stringent than the comparable effluent limitations in the previous
    permit”). There is no indication that, even if offsets are identified and permitted discharges
    begin, that such discharges will not comport with that relevant water segment’s TMDL, contain
    higher pollutants than allowed under the previous permit, or not comport with the CWA. The
    purported injury that the plaintiffs envision is thus far too speculative, as the entire purpose of
    the Bay TMDL is to reduce the amount of pollution in the Chesapeake Bay—not to increase it.
    2. Traceability
    Even if the plaintiffs could show that their injury was actual or imminent, they would still
    have a serious traceability problem. The Supreme Court has stated that “[w]hen the suit is one
    challenging the legality of government action or inaction . . . [and] a plaintiff’s asserted injury
    arises from the government’s allegedly unlawful regulation of someone else . . . it becomes the
    burden of the plaintiff to adduce facts showing that those choices have been or will be made in
    such a manner as to produce causation and permit redressability of injury.” Lujan, 
    504 U.S. at 561-62
    . See also Simon v. Eastern Ky. Welfare Rights Org., 
    426 U.S. 29
    , 41-42 (1976) (“Art. III
    17
    still requires that a federal court act only to redress injury that fairly can be traced to the
    challenged action of the defendant, and not injury that results from the independent action of
    some third party not before the court.”). The D.C. Circuit has explained that “[w]hen a
    plaintiff’s asserted injury arises from the Government’s regulation of a third party not before the
    court, it becomes ‘substantially more difficult to establish standing.’” Nat’l Wrestling Coaches
    Ass’n v. Dep’t of Educ., 
    366 F.3d 930
    , 938 (D.C. Cir. 2004) (citing Lujan, 
    504 U.S. at 562
    ).
    The plaintiffs make two arguments on causation. First, they argue that the EPA’s
    references to offsets and trades in the Bay TMDL has indirectly caused their injury “through
    authorization,” citing Animal Legal Def. Fund, Inc. v. Glickman, 
    154 F.3d 426
    , 440-44 (D.C. Cir.
    1998) (en banc) and Am. Road & Transp. Builders Ass’n v. E.P.A., 
    588 F.3d 1109
     (D.C. Cir.
    2009), for the proposition that even if the EPA itself did not directly cause the plaintiffs’ injuries,
    it could still satisfy the traceability requirement through authorization of third party conduct that
    directly caused the plaintiffs’ injuries.9 See Pl.’s Opp. Mot. to Dismiss 20-21. Second, the
    plaintiffs argue that the EPA’s references to offsets and trades in the Bay TMDL has directly
    caused their injury by coercing and “strong-arming” States into implementing offset and trading
    programs, thereby serving as a proxy for a command.10 See Pl.’s Opp. Mot. to Dismiss 22-23.
    As to this point, the plaintiffs argue that “EPA essentially requires” States to adopt offsets and
    trading programs to comply with the Bay TMDL, and that the EPA’s review of the States’
    9
    As another court explained: “[c]ausation and redressability thus are satisfied
    [where] . . . the intervening choices of third parties are not truly independent of government
    policy.” Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 
    366 F.3d 930
    , 940-41 (D.C. Cir.
    2004). Importantly, in the D.C. Circuit, “a federal court may find that a party has standing to
    challenge government action that permits or authorizes third-party conduct that would otherwise
    be illegal in the absence of the Government’s action.” 
    Id. at 940
     (emphasis added). In this case,
    the third party conduct “authorized”— offset and trading programs—would not “otherwise be
    illegal in the absence of the Government’s action.”
    10
    Given the plaintiffs’ litigation position that offset and trading programs violate the
    CWA, it appears that their “concern” about such coercion is strategic rather than empathetic.
    18
    implementation plans “constitutes de facto approval authority” of the offset and trading
    programs. 
    Id. at 9, 22
     (emphasis added).
    The plaintiffs are incorrect on both counts for similar reasons. First, the Bay TMDL does
    not authorize offset or trading programs. The plaintiffs’ repetition of that assertion throughout
    their opposition does not make it more true. The trading program being challenged here has
    been approved by the EPA since 2003 (at the latest), when the EPA established its Water Quality
    Trading Policy Statement. See generally Final Water Quality Trading Policy. Since (or even
    before) then, many States have engaged in trading and offset programs to achieve desired water
    quality levels, including States in the Chesapeake Bay. See, e.g., VA. CODE ANN. § 62.1-
    44.19:12 (West 2013) (explaining that because of the 2000 Chesapeake Bay Agreement, the
    “General Assembly finds and determines that adoption and utilization of a watershed general
    permit and market-based point source nutrient credit trading program will assist” in achieving
    water quality) (emphasis added); 25 PA. CODE § 96.8 ([Oct. 9,] 2010) (outlining the use of
    offsets and tradable credits from pollution reduction in the Chesapeake Bay watershed);
    Chesapeake Bay TMDL 10-3 (“EPA recognizes that a number of Bay jurisdictions are already
    implementing water quality trading programs.”). In addition, offset programs have been
    authorized and supported by the EPA since at least the 1980s. See, e.g., Environmental
    Protection Agency, Office of Water, A Summary of U.S. Effluent Trading and Offset Projects,
    November 1999 (listing various offset programs, including several in the Chesapeake Bay
    States) [hereinafter “A Summary of U.S. Effluent Trading and Offset Projects”].11 To the extent
    there is any cognizable injury caused by the offset and trading programs, then, it cannot be traced
    11
    available at http://water.epa.gov/type/watersheds/upload/2000_01_21_
    watershed_trading_traenvrn.pdf.
    19
    to the 2010 Chesapeake Bay TMDL because the TMDL does not authorize or require such
    programs, as they already existed before the establishment of the 2010 TMDL.
    Second, the plaintiffs mischaracterize the EPA’s role in the supervision of the States’
    WIPs. The EPA does have an extensive role in helping States develop their respective
    implementation plans, as demonstrated in particular in this case. See Chesapeake Bay TMDL
    ES-5. But ultimately, it is up to the States to choose how to implement those plans. See 
    33 U.S.C. §1313
    (e). That being said, States are often left with the difficult choice of implementing
    the TMDL in accordance with EPA’s suggestions, or face losing federal grants if they do not.
    See Pronsolino v. Marcus, 
    91 F. Supp. 2d 1337
    , 1340 (N.D. Cal. 2000) (explaining that “failure
    to implement the TMDL [established by the EPA] could imperil federal funding”); 
    id. at 1355
    (“[The State] is also free to moderate or to modify the TMDL reductions, or even refuse to
    implement them, in light of countervailing state interests. Although such steps might provoke
    EPA to withhold federal environmental grant money, [the State] is free to run the risk. A
    practical reality, of course, is that once federal environmental grant money begins to flow, state
    regulatory agencies become dependent on it [and] [t]hey become sensitive to threats to terminate
    it . . . .”). The EPA’s extensive involvement in the planning process is not, however, tantamount
    to “authorization” of State action, but instead, a result of the structure of the CWA, which
    contemplates both State and federal involvement in the process. See 
    33 U.S.C. § 1251
    (g).
    Moreover, the difficult choices States face is just a reflection of the reality that if States wish to
    accommodate growth and development and meet the goals of the CWA, they may have to use
    offsets and trading programs to implement the Bay TMDL, which happen to be encouraged and
    supported—but not authorized—by the Bay TMDL.
    20
    The plaintiffs’ coercion arguments similarly ignore the practical reality of the difficult
    choices States face—which, again, is not the result of EPA strong-arming or coercion in the Bay
    TMDL document—but of the balance States must strike if they want to—in an environmentally-
    friendly and cost-effective way— (1) comply with the TMDL numbers allotted to them, (2)
    comport with the CWA, and (3) accommodate population growth, and promote agricultural and
    industrial growth. Offsets and trades are but one option in the States’ arsenal for achieving those
    goals—that the EPA encourages the use of trades and offsets does not make it the States’ only
    option, or a coercive one at that, in achieving water quality.
    Neither does the fact that the EPA retains supervisory authority over the TMDL
    implementation process amount to causation through coercion. As the EPA’s supplemental
    authority notes, though “there may be a fine line between collaboration and coercion, the court
    finds this [TMDL] framework to be more indicative of collaboration. The purpose of the
    revision process . . . was to strengthen the WIPs to ensure attainment of water quality standards
    through the use of both federal and state resources and expertise . . . [and] the record is replete
    with numerous communications that demonstrate discussion, debate, and negotiation between the
    federal and state government, not coercion.” See American Farm Bureau Fed’n v. E.P.A., No.
    1:11-cv-0067, 
    2013 WL 5177530
    , at *29 (M.D. Pa. Sept. 13, 2013). Thus, there is no coercion,
    commanding, or “strong-arming” here, but instead, a joint federal and state effort aimed at
    achieving a common objective: better water quality.
    The plaintiffs’ purported injury, then, is not ultimately caused by the Bay TMDL—
    directly or indirectly—because 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.
    21
    3. Redressability
    Even if the plaintiffs could establish an injury that is traceable to the conduct of the EPA,
    it would still not be redressed by a decision in their favor. With respect to the redressability
    analysis, a court “examines whether the relief sought, assuming that the court chooses to grant it,
    will likely alleviate the particularized injury alleged by the plaintiff.” Fla. Audubon Soc’y, 94
    F.3d at 663-64. The plaintiffs seek a declaratory judgment from this Court “that the trading and
    offset provisions of the TMDL are in violation of the Clean Water Act and notice and comment
    procedural requirements of the APA and are null and void.” Am. Compl. ¶ 124.
    The relief the plaintiffs seek cannot be redressed by an order from this Court. As set
    forth above, the EPA did not “authorize” offsets and trading programs, as the plaintiffs
    repeatedly assert. Rather, the EPA made statements in the TMDL referencing already-existing
    (and state-implemented) trading and offset programs. This Court could only order those
    references removed from the Bay TMDL—but such an order would not change the legal
    landscape because (1) the authority to implement offset and trading programs is with the States
    themselves, (2) there is no WIP approval before the Court, and (3) the pre-existing 2003 EPA
    Water Quality Trading Policy remains in place. Therefore, any order from this Court removing
    all references in the Bay TMDL to offsets or trades would have no effect on the legal landscape,
    and would therefore not redress the plaintiffs’ injuries.12
    12
    This is not to say that the approval of offsets and trades that violate the CWA
    could not be challenged. They certainly could be challenged—through the remedial scheme
    created by the CWA itself. If the EPA issues an NPDES permit that violates the CWA, that
    action is subject to judicial review in the Court of Appeals. See 
    33 U.S.C. § 1369
    (b)(1)(F). If it
    is issued by a State agency, the State is obligated under the CWA to provide a judicial review
    process. See 
    40 C.F.R. § 123.30
    . In addition, the citizen-suit provision of the CWA allows “any
    citizen” to “commence a civil action on his own behalf against any person [including the United
    States and other government agency] . . . who is alleged to be in violation of” the CWA. See 33
    22
    The plaintiffs have failed to show that they have an actual or imminent injury that is
    traceable to the EPA’s conduct and redressable by an order of this Court. Therefore, the Court
    must dismiss this case for lack of subject matter jurisdiction. 13
    C. Ripeness
    The defendants also argue that the plaintiffs’ claims are not ripe for adjudication. The
    D.C. Circuit has explained that “[r]ipeness, while often spoken of as a justiciability doctrine
    distinct from standing, in fact shares the constitutional requirement of standing that an injury in
    fact be certainly impending.” Nat’l Treas. Employees Union v. United States, 
    101 F.3d 1423
    ,
    1427 (D.C. Cir. 1996). See also Wyo. Outdoor Council v. United States Forest Serv., 
    165 F.3d 43
    , 48 (D.C. Cir. 1999) (“Just as the constitutional standing requirement for Article III
    U.S.C. § 1365(a)(1). Thus, there are other ways the plaintiffs can seek redress from the
    appropriate entities if, and when, a violation of the CWA, and in turn, an injury, occurs.
    13
    The only other case considering the Chesapeake Bay TMDL’s legality is
    American Farm Bureau Fed’n v. E.P.A., No. 1:11-cv-0067, 
    2013 WL 5177530
    , at *1 (M.D. Pa.
    Sept. 13, 2013). In that case, the court found that the plaintiffs had standing to challenge the
    TMDL because the injury they alleged—economic injury from having to comply with the
    requirements of the TMDL—was traceable to the EPA’s establishment of the TMDL. 
    Id.
     at *18-
    19. The challenge in that case was to the legality of the TMDL itself—not its references to the
    permissive offset and trading program being challenged in the instant action. Additionally, the
    injury alleged there was an actual and imminent economic injury of having to comply with the
    TMDL requirements, which arose directly from the EPA’s establishment of the TMDL itself.
    That court’s reasoning is not inconsistent with this Court’s logic because the plaintiffs here (1)
    do not allege an actual or imminent injury as set forth above, and (2) do not challenge the TMDL
    itself, but instead challenge EPA’s “authorization of offsets and trading.” Because as set forth
    above, such purported “authorization” does not arise from the Bay TMDL, that district court’s
    finding on standing does not conflict with this Court’s finding.
    Also, the Court notes that the defendant-intervenors in this case were the plaintiffs in
    American Farm Bureau. They challenged the Bay TMDL as contrary to the Clean Water Act
    and as arbitrary and capricious in violation of the APA. The district court upheld the Bay TMDL
    in that case, whose decision is currently on appeal in the Third Circuit Court of Appeals. See
    Notice of Appeal, American Farm Bureau Fed’n, et al. v. E.P.A., No. 11-0067 (M.D. Pa.
    October 7, 2013), ECF No. 153; Civil Case Docketed, American Farm Bureau Fed’n, et al. v.
    E.P.A., No. 13-4079 (3d Cir. October 16, 2013). The plaintiffs in that case intervened in this
    case because, “to the extent the Bay TMDL survive[d] their lawsuit, Intervenors’ members will
    depend on, and benefit from, state pollutant trading and offset programs during the states’
    implementation of the Bay TMDL.” Def. Intervenor’s Mot. to Dismiss 2 n.1, ECF No. 35-1.
    23
    jurisdiction bars disputes not involving injury-in-fact, the ripeness requirement excludes cases
    not involving present injury.”). If a court establishes constitutional ripeness, it then goes on to
    analyze the prudential aspect of ripeness, which is “where a court balances ‘the fitness of the
    issues for judicial decision and the hardship to the parties of withholding court consideration.’”
    Nat’l Treas., 
    101 F.3d at 1427-28
     (quoting Abbott Labs. v. Gardner, 
    387 U.S. 136
    , 149 (1967)).
    The Supreme Court has elaborated that with respect to the ripeness inquiry, the court must
    consider “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial
    intervention would inappropriately interfere with further administrative actions, and (3) whether
    the courts would benefit from further factual development of the issues presented.” Ohio
    Forestry Ass’n Inc. v. Sierra Club, 
    523 U.S. 726
    , 733 (1998). The “paradigmatic hardship
    situation is where a petitioner is put to the choice between incurring substantial costs to comply
    with allegedly unlawful agency regulations and risking serious penalties for non-compliance.”
    Natural Res. Def. Council, Inc. v. E.P.A., 
    859 F.2d 156
    , 166 (D.C. Cir. 1988). In addition,
    “neither the possibility that the petitioner may have to make capital budgeting decisions under a
    cloud of uncertainty, nor the fact that it may incur future expense in challenging the regulations
    in a later permit or enforcement proceeding, will qualify as hardship.” 
    Id.
     (citations omitted).
    The ripeness requirement has been described as being designed “to prevent the courts,
    through avoidance of premature adjudication, from entangling themselves in abstract
    disagreements over administrative policies, and also to protect the agencies from judicial
    interference until an administrative decision has been formalized and its effects felt in a concrete
    way by the challenging parties.” Wyo. Outdoor, 
    165 F.3d at 50
     (quoting Abbott Labs, 
    387 U.S. at 148-49
    ). In Wyoming Outdoor, for instance, the plaintiffs challenged U.S. Forest Service
    regulations that had designated certain lands as suitable for oil and gas leases. Id. at 45, 50. The
    24
    court found the plaintiffs’ challenges (brought under the National Environmental Policy Act)
    unripe for review because of the multiple-stage nature of the agency action at issue—it was when
    the agency actually issued a lease under the regulations, after other phases of regulation it
    promulgated, that the agency action would be ripe for review, and that had not yet happened in
    that case. See id. at 50. See also Cntr. for Biological Diversity v. Dep’t of Interior, 
    563 F.3d 466
    , 480 (D.C. Cir. 2009) (finding plaintiff’s National Environmental Policy Act claims not ripe
    because the Department of Interior had only approved a leasing program and no leases had yet
    been issued under it).
    In this case, the Court finds that none of the elements of the ripeness inquiry are satisfied.
    First, as set forth above, there is no injury that is certainly impending in this case to meet the
    constitutional ripeness requirement. Second, even if there were, the Court does not find that the
    plaintiffs can establish any prudential aspect of ripeness. To begin, there is no indication that the
    plaintiffs will suffer any hardship from the lack of judicial review at this stage in the litigation.
    The trading and offsets statements in the Bay TMDL impose no legal obligation on the
    plaintiffs—or any other actor for that matter—and therefore, there is no risk that plaintiffs will
    have to expend resources in order to comply with the EPA’s “requirements.” In addition,
    judicial intervention at this stage would be premature because any reviewing court could benefit
    from further factual development. For instance, there is currently no indication that the EPA (or
    any state actor) is issuing any permits in violation of the provisions of the CWA. Nor is there
    any indication that any permits have been issued by the EPA or state agencies that has actually,
    or imminently will, injure the plaintiffs. Because there are multiple stages to the implementation
    of the Bay TMDL at issue here, and the implementation occurs primarily through the actions of
    25
    state actors, who are not parties to this action, judicial intervention at this time would be
    inappropriate, as further factual development would better help a court adjudicate these issues.14
    D. Failure to State a Claim
    Even if the Court were to find that the plaintiffs had standing, this case must nevertheless
    be dismissed for failure to state a claim under the APA. Review under the APA requires final
    agency action. See 
    5 U.S.C. § 704
     (“agency action made reviewable by statute and final agency
    action for which there is no other adequate remedy in a court are subject to judicial review”
    (emphasis added)). The plaintiffs have failed to challenge a final agency action.
    Under the test articulated in Bennett v. Spear, “two conditions must be satisfied for
    agency action to be ‘final:’ First, the action must mark the ‘consummation’ of the agency’s
    decision-making process—it must not be of a merely tentative or interlocutory nature.” Bennett
    v. Spear, 
    520 U.S. 154
    , 177-78 (1997) (citations omitted). And second, the action must be one
    by which “rights or obligations have been determined,” or from which “legal consequences will
    flow.” 
    Id.
     The D.C. Circuit has given guidance as to the second prong of the Bennett test. “In
    determining whether an agency has issued a binding norm . . . we are guided by two lines of
    inquiry. One line of analysis considers the effects of an agency’s action, inquiring whether the
    agency has (1) imposed any rights and obligations or (2) genuinely left the agency and its
    14
    The plaintiffs rely on Time Warner Entm’t Co. v. F.C.C., 
    93 F.3d 957
    , 974 (D.C.
    Cir. 1996), which held a challenge to FCC regulations ripe even though local franchise
    authorities had discretion whether to implement certain programming. The plaintiffs analogize
    that case to the instant action, where state authorities have discretion whether to implement the
    trading and offset programs “authorized” by the EPA. That case, however, is distinguishable
    because in that case, the plaintiffs were challenging a statutory provision that they alleged
    violated the First Amendment. Thus, the question presented was purely a legal question of
    statutory interpretation—having to do with the legal impact of an act of Congress. Here, the
    plaintiffs are not challenging a statute, but rather what they deem to be agency action, where the
    purely legal question cannot be reached if there is no final agency action. Because as explained
    in Part D of this opinion, there is no final agency action, the legal question cannot be reached and
    Time Warner is inapposite.
    26
    decisionmakers free to exercise discretion.” Cntr. for Auto Safety v. Nat’l Highway Traffic
    Safety Admin., 
    452 F.3d 798
    , 806 (D.C. Cir. 2006) (citations omitted). “The second line of
    analysis looks to the agency’s expressed intentions. This entails a consideration of three factors:
    (1) the agency’s own characterization of the action; (2) whether the action was published in the
    Federal Register or the Code of Federal Regulations;15 and (3) whether the action has binding
    effects on private parties or on the agency.” 
    Id. at 806-807
    .
    In Cntr. for Auto Safety, the plaintiffs challenged letters sent to various vehicle
    manufacturers which outlined NHTSA’s “policy guidelines” for “regional recalls.” 
    Id.
     at 799-
    800. The court held that the NHTSA Guidelines did not constitute final agency action because,
    under the second prong of the Bennett test, NHTSA “has not commanded, required, ordered, or
    dictated,” and the “agency remains free to exercise discretion in assessing proposed recalls and
    in enforcing the Act.” 
    Id. at 809
    . The court also went on to say that “it does not matter that
    agency officials have encouraged automakers to comply with the guidelines.” 
    Id.
     (emphasis in
    original). The guidelines still amounted to nothing more than a general statement of policy. 
    Id.
    Moreover, the NHTSA Associate Administrator had no authority to issue binding regulations
    under the relevant statutory provision in that case. 
    Id. at 810
    . Thus, the letters were really
    nothing more than guidelines. 
    Id.
     Similarly, in Nat’l Ass’ n of Home Builders v. Norton, the
    15
    The plaintiffs make much of the fact that the TMDL was published in the Federal
    Register as an indication that the “authorization for offsets and pollutant trading” represents final
    agency action. The Court notes that what was published in the Federal Register was EPA’s
    “Notice for the Establishment of the Total Maximum Daily Load (TMDL) for the Chesapeake
    Bay”—not the TMDL itself. See 
    76 Fed. Reg. 549
     (January 5, 2011). That notice gives a brief
    overview of the TMDL. The TMDL itself, however, is not published in the Federal Register or
    the Code of Federal Regulations. Importantly, the notice published in the Federal Register
    explains that “[o]ther provisions of the CWA, as well as the jurisdictions’ Watershed
    Implementation Plans (WIPs), were developed to implement the Bay TMDL.” 76 Fed. Reg. at
    550. Thus, the only part of the TMDL published in the Federal Register recognizes that the
    TMDL itself is not self-executing, requires further implementation efforts by the States to come
    into effect, and therefore certain of its provisions are not final.
    27
    court found that a Fish & Wildlife Service Protocol that outlined recommendations for detecting
    the endangered Quino Butterfly was not a final rule because it did not establish a binding norm,
    but rather served as a recommendation. 
    415 F.3d 8
    , 11-12, 14 (D.C. Cir. 2005). The court
    explained: “[g]iven the voluntary nature of the language contained in the Protocols, it is futile for
    Home Builders to argue that the Protocols are binding on their face.” 
    Id. at 14
    .
    Under either line of analysis, the Court finds that there is no final agency action here.
    The same problems that plague the plaintiffs’ standing arguments also undermine their argument
    that the Bay TMDL document’s reference to offsets and trading constitutes final agency action:
    such references do not impose any binding or legal obligations on any actor. The EPA’s
    language in the Bay TMDL regarding offsets and trading does not legally require any conduct,
    but rather serves as an “informational tool.”16 Pronsolino v. Nastri, 
    291 F.3d 1123
    , 1129 (9th
    Cir. 2002). The Bay TMDL uses verbs such as: “EPA expects17 that new or increased loadings
    16
    The agency action the plaintiffs contest is the purported “authorization of offsets
    and trades” in the Chesapeake Bay TMDL. See Am. Compl. ¶¶ 88-123, ECF No. 29. The
    plaintiffs do not challenge the legality of the TMDL itself—only the provisions purportedly
    authorizing what they deem to be illegal water pollutant trading. The parties—and the Court—
    are in agreement that the Chesapeake Bay TMDL is a final agency action in itself. That is not in
    dispute. See Sierra Club v. E.P.A., 
    162 F. Supp. 2d 406
    , 420 (D. Md. 2001) (“approval or
    disapproval of state submissions under the Clean Water Act is not rule making; it is only the
    actual development of the list or load that is rule making”). See also EPA’s Reply 9, ECF No. 42
    (“nor is there any dispute that EPA’s establishment of the Bay TMDL is a final agency action . . .
    .”). As defendants point out, though, “[t]he fact that EPA took final action to establish the Bay
    TMDL does not, however, mean that every associated statement is equally ‘final’ within the
    meaning of the APA.” See 
    id.
     (citing Natural Res. Def. Council v. E.P.A., 
    559 F.3d 561
    , 564-
    65 (D.C. Cir. 2009) (finding the preamble statements were not final agency action because the
    EPA spoke in the conditional and the preamble statements had no legal consequences);
    Interstate Natural Gas Ass’n of Am. v. F.E.R.C., 
    285 F.3d 18
    , 59-61 (D.C. Cir. 2002) (finding
    that the discussion of seasonal rates within a final rule “represents only a policy statement and
    therefore is neither binding on any party nor ripe for judicial review”)).
    17
    The word “expect” is the most forceful verb used in the TMDL, and even still, its
    use does not impose any requirement on the States. In the context of the EPA’s relationship with
    the Bay States, it is clear that use of that word simply acknowledges the fact that States face
    difficult decisions when it comes to implementing TMDLs. Based on the conversations between
    28
    . . . will be offset by loading reductions . . . .” Chesapeake Bay TMDL 10-1 (emphasis added);
    EPA “encourages and expects that the jurisdictions will generally develop and implement
    programs for offsetting new and increased loadings . . . .” Id. at 10-2 (emphasis added); EPA
    “recognizes that a number of Bay jurisdictions already are implementing water quality trading
    programs. EPA supports implementation of the Bay TMDL through such programs, as long as
    they are established and implemented in a manner consistent with the CWA . . . .” Id. at 10-3
    (emphasis added); “An assumption of this TMDL is that trades may occur between sources
    contributing pollutant loadings to the same or different Bay segments.” Id. (emphasis added). In
    addition, in Appendix S, the EPA notes that the common elements (which include trading and
    offsets) it hopes each State will implement “are not presented here as regulatory requirements.”
    Id. at S-2. These statements create no binding legal requirement on the States—even though the
    EPA “expects” (which is the strongest verb used in the Bay TMDL) the States will engage in
    offset and trading programs, ultimately, it is in the individual States’ control whether or not to
    use offsets and trades as a method of complying with the Bay TMDL. Nothing in the Bay
    TMDL commands or requires States to engage in offsetting or trades, making this case similar to
    Cntr. for Auto Safety and Nat’l Ass’n of Home Builders, where the relevant agency language was
    voluntary and not mandatory. To be sure, a State has limited options if it wishes to implement
    the Bay TMDL, continue to comply with the CWA, accommodate population growth, and
    encourage economic expansion. But limited options does not mean no options. EPA’s
    the States and the EPA, and the lead-up to the establishment of the Bay TMDL, the EPA
    expected that the States would carry out the offset and trading programs, as the States themselves
    pledged to do in their various WIPs. The States have limited options if they hope to (1)
    implement the Bay TMDL, (2) comply with the CWA, and (3) accommodate population growth
    and support economic expansion. EPA’s “expectation,” then, is just an acknowledgement of that
    difficult reality.
    29
    encouragement that one option might be the most logical one does not command a State to
    implement it.
    Moreover, the EPA’s language cannot be mandatory because the CWA does not confer
    on the EPA the authority to command or to require the States to take specific actions, with
    respect to their implementation plans. The supplemental authority submitted by the defendants
    serves them well on this point. See American Farm Bureau, 
    2013 WL 5177530
    , at *20 (“EPA is
    not authorized to establish or otherwise take over TMDL implementation plans.”). The district
    court in that case found that while “it would go too far to say that EPA has no role in developing
    state implementation plans . . . EPA [does not have the] authority to enact its own
    implementation plan where it has determined that the state’s effort has fallen short. EPA may
    not, for example, dictate to a state what measures the state must undertake to reduce pollution
    from a particular source.” Id.18
    There are two other reasons why the Bay TMDL document’s references to offsets and
    trading do not constitute final agency action. First, such references do nothing to change the
    legal landscape, contrary to the plaintiffs’ arguments that the 2010 TMDL marks “formal legal
    authorization by the EPA” of offsets and trading programs. See Pl.’s Mot. to Dismiss 9. The
    EPA approved of such methods for regulating water quality no later than 2003 and States have
    been engaging in such practices since then. See generally Final Water Quality Trading Policy 2
    (“the policy is intended to encourage voluntary trading programs that facilitate implementation
    of TMDLs, reduce the costs of compliance with CWA regulations, establish incentives for
    18
    Importantly, American Farm Bureau is the only case to date that has analyzed the
    Chesapeake Bay TMDL in depth. In a thorough opinion, the court found that “the record, when
    viewed as a whole, does not support a finding that the framework of federal and state interaction
    was coercive in nature so as to render the TMDL an unlawful federal implementation plan.”
    American Farm Bureau, 
    2013 WL 5177530
    , at *30.
    30
    voluntary reductions, and promote watershed-based initiatives”); see also A Summary of U.S.
    Effluent Trading and Offset Projects, supra p. 19. Thus, the EPA’s statements that it “expects”
    and “encourages” trading programs to occur does absolutely nothing new. See Cntr. for Auto
    Safety, 
    452 F.3d at 811
     (“if the practical effect of the agency action is not a certain change in the
    legal obligations of a party, the action is non-final for the purposes of judicial review under the
    APA” (citation omitted)); Indep. Equip. Dealers Ass’n v. E.P.A., 
    372 F.3d 420
    , 428 (D.C. Cir.
    2004) (“By restating EPA’s established interpretation of the certificate of conformity regulation,
    the EPA Letter [did not] tread . . . new ground. It left the world just as it found it, and thus cannot
    be fairly described as implementing, interpreting, or prescribing law or policy.”). If the Bay
    TMDL document was entirely silent about offsets and trading, the legal landscape would not
    change. In light of the fact that the EPA has not imposed any new legal obligation on any actor,
    the fact that it still “expects,” or “encourages” States to engage in certain behavior has no
    practical, legally-binding effect on the States whatsoever—because they were engaging in trades
    and offsets before the TMDL came into being, and can do so even without the statements
    contained in the TMDL.19
    19
    The plaintiffs rely extensively on Natural Res. Def. Council v. E.P.A. (“NRDC”),
    
    643 F.3d 311
     (D.C. Cir. 2011) and Appalachian Power Co. v. E.P.A., 
    208 F.3d 1015
     (D.C. Cir.
    2000). Those cases are distinguishable from the present action. In NRDC, the court found that
    an EPA Guidance Document was a final agency action because it “altered the legal regime” by
    resolving a question of statutory interpretation of the Clean Air Act. 
    643 F.3d at 320
    . That is not
    the case here because as set forth above, the EPA’s language regarding offsets and trades does
    not alter the legal regime—that regime was in place before the Bay TMDL was established, is
    not binding on the States, and does not resolve a question of statutory interpretation. Meanwhile,
    in Appalachian Power, the court found that a Guidance Document was a final agency action
    because it “reads like a ukase. It commands, it requires, it orders, it dictates.” 
    208 F.3d at 1023
    .
    The Appalachian Power court further found that “EPA has given States their ‘marching orders’
    and EPA expects the States to fall in line . . . .” 
    Id.
     That is not the case here, where, as set forth
    above, the language the EPA uses is permissive, not obligatory (nor, as set forth above, could it
    be under the CWA). Even though the EPA does “expect” that states will engage in trading and
    offset programs, in the context of the CWA, such an expectation is acknowledgment of the
    31
    In addition, this court has found that where agency action requires separate
    implementation plans to make its goals come to fruition, such agency action is not final for
    purposes of judicial review. See, e.g., Fund for Animals v. Williams, 
    391 F. Supp. 2d 132
    , 139
    (D.D.C. 2005) (“In sum, the FWS’ publication of the Strategic Plan is not a final agency action
    because it does not mandate the creation or expansion of hunting opportunities and has no direct
    effect on those regulated. Because actual implementation of the goals announced in the Strategic
    Plan occurs at a subsequent stage of decision[-]making, judicial review of the Plan would
    prematurely interfere with the agency’s decision[-]making process and would improperly
    substitute the court’s discretion for that of the agency.” (emphasis added)); Fund for Animals v.
    U.S. Bureau of Land Mgmt., 
    357 F. Supp. 2d 225
    , 229 (D.D.C. 2004), aff’d on other grounds,
    
    460 F.3d 13
     (D.C. Cir. 2006) (“Because further decision[-]making on the part of the BLM’s state
    offices is required prior to any implementation of the Strategy’s goals or guidelines, the Court
    concludes that the Strategy, simply stated, is not a final agency action. So, despite the fact that
    any decision[-]making process related to setting the Strategy may in fact be ‘final,’ it is not the
    type of decision that will directly affect the parties because further agency action is necessary
    before any concrete action will be taken by the agency that might affect the rights of the
    plaintiffs.”). Similarly here, there are other actors—state agencies—that must implement the
    TMDL established by the EPA. The plaintiffs’ rights will not be affected until further
    implementation by the States begins to take shape. Thus, the EPA setting forth its
    “expectations” is the starting point, and the States end up with the final decision as to whether to
    limited options available, but imposes no binding obligation on the States, who are free to
    implement their respective TMDLs in whatever way they see fit (as long as their plans comport
    with the Bay TMDL itself and the CWA). In contrast, in Appalachian Power, the Guidance
    Document at issue interpreted certain provisions of the Clean Air Act that imposed various
    “requirements” on the States in the document itself. Id. at 1019-22 (explaining that “periodic
    monitoring [by States] is required for each emission point . . . .” (emphasis added)).
    32
    implement trading or offset programs and, if so, whether to approve a specific trade or offset
    when it approves a new or modified permit. Any final agency actions, then, that could
    potentially injure the plaintiffs’ members are in the future—i.e., down river from this point in
    time.
    IV. CONCLUSION
    The plaintiffs want the Bay TMDL statements about offsets and trading to be declared
    null and void. But the plaintiffs can only mount such a challenge if such statements constitute
    (1) final agency action, and (2) if plaintiffs can show they have standing to challenge them. The
    plaintiffs cannot do that, and as such the Court must dismiss their action for lack of subject
    matter jurisdiction and for failure to state a claim.
    For the foregoing reasons, the defendants’ motions to dismiss for lack of subject matter
    jurisdiction and for failure to state a claim are granted. An order consistent with this
    Memorandum Opinion is separately and contemporaneously issued.
    Dated: December 13, 2013                                            RUDOLPH CONTRERAS
    United States District Judge
    33
    

Document Info

Docket Number: Civil Action No. 2012-1639

Citation Numbers: 5 F. Supp. 3d 62, 43 Envtl. L. Rep. (Envtl. Law Inst.) 20271, 2013 U.S. Dist. LEXIS 174430, 2013 WL 6513826

Judges: Judge Rudolph Contreras

Filed Date: 12/13/2013

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (44)

interstate-natural-gas-association-of-america-v-federal-energy-regulatory , 285 F.3d 18 ( 2002 )

Edward Haase v. William S. Sessions, Director, F.B.I. , 835 F.2d 902 ( 1987 )

Bryant v. Pepco , 730 F. Supp. 2d 25 ( 2010 )

Indep Equip Dlrs v. EPA , 372 F.3d 420 ( 2004 )

Sierra Club v. United States Environmental Protection Agency , 162 F. Supp. 2d 406 ( 2001 )

Fund for Animals v. Williams , 391 F. Supp. 2d 132 ( 2005 )

Scheuer v. Rhodes , 94 S. Ct. 1683 ( 1974 )

National Treasury Employees Union v. United States , 101 F.3d 1423 ( 1996 )

Kokkonen v. Guardian Life Insurance Co. of America , 114 S. Ct. 1673 ( 1994 )

Victor Herbert v. National Academy of Sciences , 974 F.2d 192 ( 1992 )

John D. Williamson, Plaintiffs-Appellants-Cross v. Gordon G.... , 58 A.L.R. Fed. 371 ( 1981 )

guido-a-pronsolino-betty-j-pronsolino-as-trustees-for-the-guido-a , 291 F.3d 1123 ( 2002 )

Grand Lodge of the Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9 ( 2001 )

Hunt v. Washington State Apple Advertising Commission , 97 S. Ct. 2434 ( 1977 )

time-warner-entertainment-co-lp-appellantpetitioner-v-federal , 93 F.3d 957 ( 1996 )

Wilderness Society, a Non-Profit Corporation v. J. Steven ... , 824 F.2d 4 ( 1987 )

Bennett v. Spear , 117 S. Ct. 1154 ( 1997 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

United States v. Philip Morris Inc. , 116 F. Supp. 2d 131 ( 2000 )

Fund for Animals, Inc. v. U.S. Bureau of Land Management , 460 F.3d 13 ( 2006 )

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