Environmental Litigation Standing After Massachusetts v. EPA: Center for Biological Diversity v. EPA

Author:Andy Hosaido
Position::J.D. Candidate, May 2011, at American University Washington College of Law
30FALL 2009
As a consequence of the U.S. Supreme Court’s landmark
2007 decision in Massachusetts v. Environmental Pro-
tection Agency, reduced standing requirements have
enabled litigators to pursue environment al claims an d compel
U.S. Federal agencie s to e nforce existing statutes. Center for
Biologic al Div ersity v. En vironmental Protectio n Agen cy is
predicated upon these reduced standing requirements. On May
14, 200 9, the Center for Biologic al Diversity (“CBD”) filed a
complaint in the Western District of W ashington a gainst the
Environmental Protection Agency (“EPA”) based on EPA’s fail-
ure to list and regulate damage caused to Washington’s coastal
waters by ocean acidification.1 In the suit, the CBD alleged that
the EPA’s approv al of Washington’s list of impaired waters,
which only include d inl and waters and did not i nclude the
adversely affected coastal ocean areas, h armed the right of its
members to enjoy the marine animals in the area.2 As a result of
the EPA’s action, CBD also claimed that its members s uffered
procedural and informational injury.3 Pursuant to the holding in
Massachusetts, where the Court found that the EPA violated its
statutory obligation when it declined to regulate CO2 and green-
house ga sses (“GHG”), th e CBD is seeking to compel similar
EPA action by requesting declaratory relief against the EPA
for its procedurally improper approval of Washington’s list of
impaired waters.4
Prior to Massachusetts, environme ntal lit igants h ad dif-
ficulty meeting require ments for sub stantive and procedural
standing, because comprehensive regulations such as the Clean
Air Act (“CAA”) preempted claims that fe ll under its man-
date.5 Massachuset ts wa s significant because the Court found
substantiv e standin g despite the difficulty of proving i njury,
traceability, and redressability, and it also vested environmental
litigants with the right to enforc e procedural violations by fed-
eral agencies such as the EPA.6 Massachusetts held that a plain-
tiff can claim procedural standing when the alleged harm can be
redressed by the government agency reconsidering the adminis-
trative decision that caused the harm.7 This procedural standing
forms the basis of much of the current litigation against govern-
ment agencies for not enforcing statutory regulations according
to provisions of the Clean Air Act, Clean Water Act, National
Environmental Policy Act, Endangered Species Act, and other
federal and state environmental protection laws.
As a result of the decis ion in Ma ssachusetts, courts have
found standing in several recen t cases of envir onmental litiga-
tion.8 Center for Biological Diversity v. Environmental Protec-
tion Agency follows in the footsteps of these prior cases.
At issue in Center for Biological Diversity v. Environmental
Protection Agency is the listing provision of the Clean Water Act
(“CWA”), which requires states to establish water quality stan-
dards and prepare lists of water bodies where pollution controls
are insufficient (known as the “impaired waters list”).9 After the
list is prepared, it is submitted to the EPA and approved, disap-
proved, or partially disapproved.10 On August 15, 2007 the CBD
submitted data to Washington Department of Ecology (“WDE”)
to notif y them that Washington’s c oastal ocean w aters should
be included on the impa ired waters list be cause the pH level
was o utside the range proscribe d by stat e law, a nd was c aus-
ing damage to ocean fauna.11 Subsequently, CBD petitioned the
WDE to include the ocean waters on the CWA impaired waters
list.12 However on June 23, 2008 when WDE submitted the list
to the EPA for approval, the ac idified ocean waters we re not
included.13 As a result , the CBD submitted letters to the EPA
with scientific document ation c ontending that Washington’s
coastal ocean waters were impaired due to substantial changes
in pH level that were beyond statutory limits, and requested that
the EPA include the acidified waters on the list.14 Despite the
evidence s ubmitted by CBD that demonstrated that the waters
were impaired due to ocean acidification, the EPA approved
Washington’s list on January 29, 2009.15
CBD brought suit against the EPA because of its approval
of W ashington’s list of imp aired waters without t he acidified
ocean waters allege dly violated CWA sect ion 303(d).16 CBD
also contends that the EPA’s approval o f the li st violated the
Administrative Procedure Act, which allows judicial review of
agency action that is arbitrary, capricious, and not in accordance
with the law.17 CBD seeks declaratory relief from the court
that the EPA violated its duties under the CWA and an order to
require that the EPA add the impaired ocean waters to the list.18
If CBD’s complaint is successful, the EPA would be compelled
to address the effect of CO2 emissions on ocean acidification.
The decisions in Massachusetts and its successors have had
a sig nificant impact on environmen tal litigation in the United
States. Although some provisions of the various environmental
laws discussed above may be rendered obsolete for the purpose
of cli mate-related litigati on because of their ab sorption into a
new climate and energy regulatory regime under consideration
in Congress , Center for Biological Diversity v. Environmental
Protection Agency demonstr ates that the reduced requirement
for substantive and procedural standing establ ished i n Mas-
sachusetts will co ntinue to stimulate environmental l itigation
against agencies’ lack of regulatory enforcement.19
Endnotes: Environmental Litigation Standing After Massachusetts v.
EPA: Center for Biological Diversity v. EPA continued on page 82
* Andy Hosaido is a J.D. Candid ate, May 2011, at American Unive rsity
Washington College of Law.
environmental litigation StanDing after
maSSachuSettS v. epa: center for biological DiverSity v. epa
by Andy Hosaido*