Summary of a Recent
Judicial Development in
Environmental Law

Harm to Aesthetic, Recreational, and Economic Interests Protected
by Clean Water Act is Sufficient to Establish Injury in Fact

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Ohio Valley Environmental Coalition v. Horinko, 279 F. Supp. 2d 732 (S.D. W. Va. 2003), granted in part and denied in part the parties' cross-motions for summary judgment. The plaintiffs, concerned citizens and environmental organizations, brought this action against the United States Environmental Protection Agency (EPA) for alleged violations of the Clean Water Act (CWA) in approving the antidegradation implementation procedures of West Virginia. The court held that injuries to members' aesthetic, conservation, and economic interests were sufficient to give the environment organization standing, and that deeming nonpoint sources of pollution to be in compliance if best management practices (BMPs) were used was reasonable. Ultimately, the court vacated and remanded the EPA's approval of West Virginia's antidegradation procedures.

Background

The Federal Clean Water Act requires states to "develop and adopt a statewide antidegradation policy and identify methods for implementing such policy." Id. at 738 (quoting 40 C.F.R. § 131.12(a) (2003)). On April 14, 2001, the West Virginia legislature passed legislation establishing the state's antidegradation implementation procedures. Id. at 739. On July 5, 2001, the state submitted the procedures to the EPA for approval, and the agency approved them on November 26, 2001. Id. On January 23, the plaintiffs brought the instant lawsuit challenging the EPA's approval of West Virginia's procedures. Id.

Arguments

The plaintiffs asserted that the EPA's approval was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. at 739 (quoting 5 U.S.C. § 706(2)(A)). They sought a judicial declaration stating the same, an order to set aside the EPA's approval, remand, and an "award of costs and expenses, including reasonable attorneys' and expert witness fees, under 28 U.S.C. § 2412." Id. Of particular import, the plaintiffs claimed that the state's antidegradation procedures were "inconsistent with EPA regulations implementing the Clean Water Act." Id.

Municipal intervenors argued that environmental organizations lacked standing to bring the instant lawsuit because "no actual, concrete injury [could] ever flow from a State's failure to protect water quality, so long as the State adequately protects the existing uses of a water body." Id. at 744.

Analysis and Holdings

In examining the EPA's approval of West Virginia's antidegradation implementation procedures, the court was limited to ensuring only that "the approval was not 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Id. at 741 (quoting 5 U.S.C. § 706(2)(A)). Pursuant to this standard of review, the court set out "to scrutinize [the EPA's] activity to discern whether the record reveals that a rational basis exists for [its] decision." Id. (quoting Reynolds Metals Co. v. EPA, 760 F.2d 549, 558 (4th Cir.1985)).

Before addressing the merits of the case, the court examined whether the environmental organizations had standing. Id. at 742. To establish standing, the plaintiff organizations filed affidavits stating the harms they would face if the antidegradation procedures were approved and sustained. Id. Municipal intervenors argued that the organizations lacked standing to bring the instant lawsuit because "no actual, concrete injury [could] ever flow from a State's failure to protect water quality, so long as the State adequately protects the existing uses of a water body." Id. at 744. The court disagreed, stating that "Congress may, by statute, create cognizable legal interests, the injury of which suffices for Article III standing." Id. The CWA is concerned with the quality of waters in addition to the uses of water. Id. The court held that the plaintiffs had constitutional standing because they "alleged a threat of harm to their aesthetic, recreational, and economic interests protected by the Clean Water Act's goal of maintaining water quality." Id.

After resolving the issue of the plaintiffs' standing, the court turned to the merits of the case. Id. at 746. The plaintiffs objected to the "treatment of nonpoint sources in the West Virginia regulations." Id. at 762. The parties agreed that the CWA did not give the EPA the authority to regulate nonpoint sources of pollution directly. Id. at 762-63. Nonpoint source regulation is left to the states. Section 1.5(b) of the antidegradation procedures at issue stated: "Nonpoint source activities will be deemed to be in compliance with antidegradation requirements with the installation and maintenance of cost-effective and reasonable best management practices . . . ." Id. at 763. The plaintiffs argued that such a rule was "inconsistent with EPA regulations because nonpoint source activities [were] deemed to be in compliance so long as best management practices [were] installed and maintained, whereas the EPA's regulation require[d] that the State assure that best management practices be achieved." Id. Disagreeing with the plaintiffs, the court stated, "saying that certain practices must be 'installed and maintained' is roughly equivalent to saying that those practices must be 'achieved.'" Id.

In addition to the plaintiffs' argument regarding the state's regulation of nonpoint sources of pollution, the plaintiffs raised challenges to the EPA's approval of twelve other parts of West Virginia's antidegradation procedures. Id. at 776. Ultimately, the court held that the "EPA's approval of West Virginia's plan was reasonable as to six of these issues, but arbitrary and capricious as to the remaining seven issues." Id. at 775. Therefore, the court granted the plaintiffs' motion for summary judgment, denied the motions by the EPA and municipal intervenors, vacated the EPA's approval of West Virginia's antidegradation procedures, and remanded to the EPA for further proceedings consistent with the court's opinion. Id. at 776.

The case was decided on August 29, 2003.