United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 19, 2022 Decided July 26, 2022
No. 20-5174
WATERKEEPER ALLIANCE, INC., ET AL.,
APPELLANTS
v.
MICHAEL S. REGAN, ADMINISTRATOR, U.S. ENVIRONMENTAL
PROTECTION AGENCY, IN HIS OFFICIAL CAPACITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02230)
Jennifer Cassel argued the cause for appellants. With her
on the briefs was Charles McPhedran.
Robert J. Lundman, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
were Todd Kim, Assistant Attorney General, Jennifer Scheller
Neumann and Tsuki Hoshijima, Attorneys, and Laurel Celeste,
Senior Attorney, U.S. Environmental Protection Agency.
Rebecca Jaffe and Katelin Shugart-Schmidt, Attorneys, U.S.
Department of Justice, entered appearances.
2
Mithun Mansinghani, Solicitor General, Office of the
Attorney General for the State of Oklahoma, argued the cause
for intervenors State of Oklahoma, et al. in support of
appellees. With him on the brief were Douglas H. Green,
Margaret K. Fawal, Megan H. Berge, Kent Mayo, and Martha
S. Thomsen.
Before: SRINIVASAN, Chief Judge, WILKINS and WALKER,
Circuit Judges.
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: Coal-fired power plants
produce considerable amounts of waste known as coal ash.
Because coal ash contains carcinogens and other toxic
chemicals, its improper disposal can substantially harm the
environment and impair the health of anyone living near
disposal facilities.
In 2015, the Environmental Protection Agency established
federal standards for coal ash disposal facilities. Under the
governing statute, a state, instead of submitting to federal
oversight of coal ash facilities within its borders, can develop
its own permitting program and seek EPA’s approval of the
state program as consistent with federal standards.
Oklahoma chose that path and obtained EPA’s approval of
its permitting program. Plaintiffs, a trio of environmental
groups, then brought this action contesting EPA’s approval.
They challenge the adequacy of Oklahoma’s permitting
program on several grounds. The district court granted
summary judgment to EPA on most of the claims, and plaintiffs
now appeal.
3
We do not reach the merits of the claims before us because
we conclude that plaintiffs lack standing to bring them. We
thus vacate the district court’s grant of summary judgment to
EPA and remand for dismissal of the relevant claims.
I.
A.
The Resource Conservation and Recovery Act (RCRA),
42 U.S.C. § 6901 et seq., addresses the generation,
transportation, treatment, storage, and disposal of solid waste.
See id. § 6902. Subtitle C of the statute, id. §§ 6921–6939g,
governs the regulation of hazardous waste, and Subtitle D, id.
§§ 6941–6949a, governs the regulation of non-hazardous
waste.
Of relevance here, RCRA contains a provision addressed
to public participation in programs established under the
statute. Id. § 6974(b). That provision calls for the EPA
Administrator, working in cooperation with states, to provide
for “[p]ublic participation in the development, revision,
implementation, and enforcement” of RCRA programs, and to
“develop and publish minimum guidelines for public
participation in such processes.” Id. § 6974(b)(1). RCRA also
contains a citizen-suit provision. Id. § 6972. That provision
authorizes actions against “any person . . . alleged to be in
violation of any . . . requirement, prohibition, or order which
has become effective pursuant to” the statute, as well as actions
against the EPA Administrator for failure to perform a
nondiscretionary duty imposed by the statute. Id.
§ 6972(a)(1)(A), (a)(2).
After RCRA’s enactment in 1976, EPA for decades
considered whether and how to regulate the handling and
disposal of coal ash (also known as coal residuals). See
4
generally Util. Solid Waste Activities Grp. v. EPA (USWAG),
901 F.3d 414, 419-24 (D.C. Cir. 2018). Eventually, in 2015,
EPA adopted a rule regulating coal ash as non-hazardous waste
under Subtitle D of RCRA. See id. at 424; Hazardous and Solid
Waste Management System; Disposal of Coal Combustion
Residuals from Electric Utilities, 80 Fed. Reg. 21,302 (Apr. 17,
2015) (2015 Rule), J.A. 104. The 2015 Rule “set[s] forth
guidelines on where and how disposal sites for [coal ash] are to
be built, maintained, and monitored,” and establishes
“minimum criteria for the disposal of [coal ash] in landfills and
surface impoundments.” USWAG, 901 F.3d at 424. The Rule,
however, does not establish a federal permitting program or
otherwise provide for EPA enforcement of its standards. See
2015 Rule, 80 Fed. Reg. at 21,309, J.A. 106.
One year after EPA adopted the 2015 Rule pursuant to
RCRA Subtitle D, Congress amended Subtitle D in the Water
Infrastructure Improvements for the Nation Act
(Improvements Act). Pub. L. No. 114-322, 130 Stat. 1628,
1736–40 (codified at 42 U.S.C. § 6945(d)). The Improvements
Act adds provisions to Subtitle D that are specifically
addressed to “coal combustion residuals units,” i.e., coal ash
disposal units. The new provisions expressly build on—and
repeatedly reference—the coal ash regulations that had
recently been promulgated in the 2015 Rule. See 42 U.S.C.
§ 6945(d); USWAG, 901 F.3d at 426.
Under Subtitle D as amended by the Improvements Act,
states have a choice about the regulation of coal ash disposal
units within their borders. A state can either develop its own
permitting program for in-state facilities or instead submit to
federal oversight and regulation. See 42 U.S.C. § 6945(d)(1),
(d)(2).
5
A participating state—a state that chooses the former
route—must submit its permitting program for approval by the
EPA Administrator. See id. § 6945(d)(1). And the
Administrator “shall approve” a state permitting program if the
state program’s standards “are at least as protective as the
criteria” in the 2015 Rule. Id. § 6945(d)(1)(C).
For “nonparticipating states,” the Improvements Act
directs the EPA Administrator to “implement a [federal] permit
program to require each coal combustion residuals unit located
in [a] nonparticipating State to achieve compliance with
applicable criteria established by” the 2015 Rule “or successor
regulations.” Id. § 6945(d)(2)(B). That obligation, however,
is “subject to the availability of appropriations specifically
provided . . . to carry out a program in a nonparticipating State.”
Id. EPA has yet to adopt a federal permitting program for
nonparticipating states as of the date of this opinion.
Soon after Congress enacted the Improvements Act,
Oklahoma developed and submitted a coal ash disposal unit
permitting program for approval by EPA. The Oklahoma
Program grants operating permits to facilities that meet a set of
state standards that are designed to mirror or be more protective
than the 2015 Rule. Two features of the Oklahoma Program
are particularly relevant to this case.
First, Oklahoma provides for varying levels of public
participation in connection with permitting actions depending
on the “tier” to which a given action is assigned. Okla. Admin.
Code § 252:4-7-58 to 4-7-60; J.A. 249. Actions in the highest
tier (Tier III) afford the greatest opportunity for public
participation, including an opportunity for public meeting and
comment and for an administrative hearing. Actions in the
lowest tier (Tier I) allow for the fewest opportunities for public
participation, including no opportunity for public comment.
6
See Oklahoma: Approval of State Coal Combustion Residuals
Permit Program, 83 Fed. Reg. 30,356, 30,358–59 (June 28,
2018), J.A. 168–69; Okla. Stat. tit. 27A, § 2-14-103(9)-(11)
(2020).
Second, the Oklahoma Program provides for permits for
the “life” of a unit, or until the facility ceases or suspends
operations. Okla. Admin. Code § 252:517-3-1. Those permits
are subject to state laws and rules “as they exist on the date of
filing an application and afterwards as changed.” Id. § 252:4-
7-3. In practice, that means a permit for “life” may need to be
modified or re-issued to remain up to date with state criteria.
But the permits are not tied to changes in applicable federal
standards.
In January 2018, EPA provided notice of its intent to
approve the Oklahoma Program. The plaintiffs in this action
submitted comments in opposition. They contended, among
other things, that EPA could not lawfully approve the
Oklahoma Program before fulfilling its obligation under
RCRA’s public-participation provision to promulgate public-
participation guidelines for state permitting programs, see 42
U.S.C. § 6974(b); that Oklahoma provided insufficient
opportunities for the public to participate in Tier I permitting
actions; and that the issuance of lifetime permits contravened
the Improvement Act’s requirement that state programs be at
least as protective as federal standards, see id. § 6945(d)(1)(C).
In June 2018, EPA approved the Oklahoma Program.
Oklahoma has since adopted regulations cementing its program
under state law.
B.
Following EPA’s approval of the Oklahoma Program,
three environmental groups—Waterkeeper Alliance, Local
7
Environmental Action Demanded Agency, and Sierra Club—
sued the EPA Administrator in the district court. The State of
Oklahoma and various utility companies intervened on behalf
of EPA.
The complaint raises seven claims. The first is brought
under RCRA’s citizen-suit provision. 42 U.S.C. § 6972(a)(2).
That claim (the citizen-suit claim) contends that RCRA’s
public-participation provision, 42 U.S.C. § 6974(b), imposes a
nondiscretionary duty on the EPA Administrator to promulgate
regulations establishing guidelines for public participation in
state coal ash programs. As relief, the citizen-suit claim seeks
an order compelling the Administrator to issue the ostensibly
necessary regulations.
Next, the complaint raises a series of challenges under the
Administrative Procedure Act to EPA’s approval of the
Oklahoma Program. The first of those claims is not part of this
appeal: it successfully challenged the Oklahoma Program’s
allowance of unlined surface impoundments, and EPA has not
appealed the district court’s ruling against it on that claim.
The second APA challenge reframes the previously
described citizen-suit claim. That challenge (the guidelines
claim) alleges that EPA’s approval infringed RCRA’s public-
participation provision because it occurred before the
Administrator promulgated regulations with public
participation guidelines for state permitting programs.
The third APA challenge (the Tier I claim) contends that
EPA’s approval was inconsistent with RCRA’s public-
participation provision for a second reason: the Oklahoma
Program allows for insufficient public-participation
opportunities in Tier I permitting actions.
8
The fourth APA challenge (the lifetime-permits claim)
alleges that EPA’s approval of a program with lifetime permits
contravened the Improvement Act’s requirement that a state
permitting program secure compliance with standards at least
as protective as the 2015 Rule. Plaintiffs argue that facilities
with lifetime permits would cease to comply with federal
standards upon any amendment of those standards.
In the fifth and sixth APA claims (the comments claims),
the complaint challenges EPA’s approval as arbitrary and
capricious because EPA failed to adequately respond to two of
plaintiffs’ comments. The first comment had presented the
argument underlying the guidelines claim, and the second had
presented the argument underlying the lifetime-permits claim.
The parties cross-moved for summary judgment. Apart
from the one claim on which the district court granted judgment
to the plaintiffs (which, as explained, involved Oklahoma’s
allowance of unlined surface impoundments), the court granted
judgment in favor of EPA. Plaintiffs now appeal the ruling
against them on those remaining six claims.
II.
Although neither EPA nor Intervenors contest plaintiffs’
standing to bring the claims before us in this appeal, we have
an independent obligation to assure ourselves of our
jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 95 (1998). Plaintiffs are a trio of membership
organizations. “[A]n association has standing to bring suit on
behalf of its members when: (a) its members would otherwise
have standing to sue in their own right; (b) the interests it seeks
to protect are germane to the organization’s purpose; and (c)
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Hunt v.
9
Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
The first of those conditions is dispositive here.
A member of the plaintiff organizations would have
standing to sue in her own right if: (i) she “suffered an injury
in fact . . . which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical”; (ii) the
injury is “fairly traceable to the challenged action of the
defendant”; and (iii) it is “likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992) (citations, alterations, and quotation marks omitted).
Plaintiffs bear the burden to establish the elements of
standing. Id. at 561. Because standing is a claim-specific
inquiry, see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
(2006), we separately examine plaintiffs’ standing as to each of
the claims they raise on appeal. They fail to demonstrate their
standing to bring any of those claims.
A.
We start with plaintiffs’ citizen-suit claim. That claim,
as noted, alleges that the EPA Administrator has failed to
satisfy a nondiscretionary duty under RCRA’s public-
participation provision to adopt regulations setting guidelines
for public participation in state coal ash programs. See 42
U.S.C. § 6974(b). As relief, the claim seeks an order
compelling the Administrator to issue those regulations.
Plaintiffs lack standing to bring that claim because they
fail to show that the requested relief would likely redress their
alleged injuries. See Lujan, 504 U.S. at 561. They assert that
their members suffer injury from the dearth of public-
participation opportunities afforded by the Oklahoma Program.
The members believe that, if they were better heard about how
10
“coal ash pollution affects [them],” the relevant government
actors might act in a way that would “prevent or reduce their
injuries from coal ash” in Oklahoma. Plaintiffs’ Br. 20, 23.
But whereas plaintiffs’ injuries thus stem from the Oklahoma
Program’s ostensible lack of meaningful public-participation
opportunities, their claim seeks relief against the EPA
Administrator, in the form of an order directing the
Administrator to issue minimum guidelines for public
participation in state permitting programs. EPA’s role in
plaintiffs’ injuries, then, rests on the effect of the agency’s
actions or inactions on Oklahoma’s choices.
When “causation and redressability . . . hinge on the
response of the regulated (or regulable) third party to the
government action or inaction,” standing is “substantially more
difficult to establish.” Lujan, 504 U.S. at 562. The plaintiff
must allege “facts . . . sufficient to demonstrate a substantial
likelihood that the third party directly injuring the plaintiff
would cease doing so as a result of the relief the plaintiff
sought.” Renal Physicians Ass’n v. U.S. Dep’t of Health &
Hum. Servs., 489 F.3d 1267, 1275 (D.C. Cir. 2007).
Here, plaintiffs must show that the relief they seek, which
would direct EPA to issue guidelines for public participation in
state permitting programs, would be substantially likely to
cause Oklahoma to cease its injurious conduct. Plaintiffs fail
to carry that burden. They point to nothing in RCRA’s
framework indicating that our granting them relief on their
citizen-suit claim would bring about any changes in the
Oklahoma Program’s public-participation regime. EPA
already approved the Oklahoma Program, and plaintiffs do not
explain how the agency’s prospective promulgation of public-
participation guidelines might retroactively alter that prior
approval. Nor do plaintiffs explain how the agency could
otherwise enforce the new federal regulations in Oklahoma.
11
To be sure, EPA can withdraw approval of a state
permitting program. 42 U.S.C. § 6945(d)(1)(E). But plaintiffs
make no suggestion that EPA, upon adopting new public-
participation guidelines, would proceed to withdraw its
approval of the Oklahoma Program.
The absence of any such suggestion by plaintiffs is
understandable. RCRA contemplates withdrawal of approval
of a state program only on specific grounds: for the program’s
failure to secure compliance with criteria in the 2015 Rule and
successor regulations promulgated under EPA’s authority to
regulate coal ash disposal practices, or for the state’s failure to
revoke a permit for a unit with possibly harmful environmental
effects. 42 U.S.C. § 6945(d)(1)(B)(i)-(ii), (d)(1)(D)(ii)(I)–
(III), (d)(1)(E). At least on its face, the statute contains no
authorization for EPA to withdraw approval of a state program
for non-compliance with a future regulation promulgated under
EPA’s public-participation provision authority. Indeed,
plaintiffs seem to recognize the point in arguing the merits of
their claim: they emphasize that, if EPA could satisfy its duty
to adopt public-participation guidelines by promulgating
regulations after approving a state permitting program, the
guidelines would “have no practical effect.” Plaintiffs’ Br. 30
(citation omitted). Plaintiffs thus fail to show that granting
relief on the citizen-suit claim would have any effect on the
Oklahoma Program’s public-participation rules, much less that
granting relief would be substantially likely to affect those
Oklahoma rules.
Plaintiffs observe in passing that we could order the
agency to “ensure that Oklahoma’s program meets [the new
public participation] guidelines.” Plaintiffs’ Br. 24. Plaintiffs’
requested relief, however, is confined to an order compelling
EPA to promulgate a set of public-participation regulations
(and that is seemingly all we could do in the circumstances per
12
terms of the citizen-suit provision, see 42 U.S.C. § 6972(a)).
At any rate, plaintiffs do not identify a legal mechanism by
which EPA could secure Oklahoma’s compliance with public-
participation guidelines the agency develops, much less the
mechanism by which a court could require EPA to do so.
In theory, Oklahoma could voluntarily opt to conform to
new public-participation guidelines adopted by EPA. But
“standing to challenge a government policy cannot be founded
merely on speculation as to what third parties will do in
response to a favorable ruling.” Renal Physicians Ass’n, 489
F.3d at 1274. And here, plaintiffs fall short of even
speculation, as they do not purport to base redressability on
Oklahoma’s actions in response to EPA’s prospective
promulgation of new public-participation guidelines.
For those reasons, plaintiffs fail to show why compelling
EPA to publish guidelines for public participation in state
permitting programs would redress alleged injuries to their
members from deficiencies in Oklahoma’s program. They thus
lack standing to bring the citizen-suit claim.
B.
We next examine plaintiffs’ APA claims related to public
participation: the guidelines claim and the Tier I claim. The
guidelines claim asserts that EPA’s approval of the Oklahoma
Program was arbitrary and capricious because it took place
before the Administrator promulgated public-participation
guidelines for state programs. And the Tier I claim challenges
EPA’s approval on the ground that Oklahoma’s permitting
program affords inadequate public-participation opportunities
for Tier I actions.
Plaintiffs allege the same injury in connection with those
claims as with the citizen-suit claim: they contend that the
13
Oklahoma Program denies their members a meaningful
opportunity to participate in permitting processes, exposing
them to a greater risk of coal-ash pollution and its attendant
consequences. Plaintiffs, though, seek a different type of relief
under the APA claims—vacatur of EPA’s approval of the
Oklahoma Program (as opposed to an order compelling the
Administrator to issue public-participation guidelines). Still,
plaintiffs ultimately run into the same obstacle: they fail to
show that their requested relief would redress their injuries.
The immediate effect of the requested relief—i.e., of
vacating EPA’s approval of the Oklahoma Program—would be
to render Oklahoma a “nonparticipating state” under RCRA.
42 U.S.C. § 6945(d)(2)(A)(iv). If that were to happen, coal ash
disposal units in Oklahoma would no longer be governed by
the state permitting regime. Instead, they would be subject to
the default federal regulatory regime. And at least as of now
(before the promulgation of a federal permitting program, id.
§ 6945(d)(2)(B)), that default federal regime is the 2015 Rule.
Plaintiffs do not dispute, however, that the 2015 Rule
affords fewer opportunities for public participation than the
Oklahoma Program provides. See Intervenors’ Br. 30–31.
Under RCRA’s framework, then, plaintiffs would have fewer
opportunities for public participation if they prevailed on their
claims than under the status quo. Far from affording them
redress, plaintiffs’ requested relief might exacerbate their
alleged injuries.
At oral argument, plaintiffs sought to sketch out a more
attenuated redressability theory. Under that theory, their
injuries would be redressed not by the requested vacatur of
EPA’s approval itself, but instead by ensuing actions plaintiffs
posit EPA would undertake. The chain of causation would run
as follows: (i) in the course of vacating EPA’s approval of the
14
Oklahoma Program, we would announce that the public-
participation opportunities in the Oklahoma Program are
deficient under RCRA’s public-participation provision, 42
U.S.C. § 6974(b); (ii) EPA would account for that holding in
developing a federal permitting program for coal ash facilities
for nonparticipating states, see id. § 6945(d)(2)(B); (iii) EPA
would thus establish a federal program with more robust
public-participation opportunities than the Oklahoma Program
affords; and (iv) because Oklahoma would become a
nonparticipating state following our vacatur of EPA’s
approval, the new federal permitting program would go into
effect in Oklahoma and would provide for increased public
participation in permitting processes.
That newly fashioned theory of standing markedly differs
from the theory espoused by plaintiffs in their briefing—the
new theory turns on the potential implications of vacatur for a
federal permitting program, whereas the redressability theory
in plaintiffs’ briefing turns on the implications of vacatur for
Oklahoma’s own permitting program. We decline to consider
plaintiffs’ new theory at this stage. See Exxon Mobil Corp. v.
FERC, 571 F.3d 1208, 1220 (D.C. Cir. 2009). It bears noting,
moreover, that in order to establish standing based on their
newest theory, plaintiffs would need to show it is “substantially
likely” that each link in their multi-step causal chain would
come to fruition. See Dellums v. U.S. Nuclear Reg. Comm’n,
863 F.2d 968, 974 (D.C. Cir. 1988). But plaintiffs have made
no effort to demonstrate, for instance, likely satisfaction of the
condition that there be “appropriations specifically provided in
an appropriations Act to carry out a [federal permitting]
program in a nonparticipating state.” 42 U.S.C.
§ 6945(d)(2)(B).
15
C.
We now consider plaintiffs’ lifetime-permits claim. That
claim argues that EPA’s approval of a program allowing for
lifetime permits conflicts with the statutory requirement that a
state permitting program maintain standards at least as
protective as the 2015 Rule and successor regulations. See 42
U.S.C. § 6945(d)(1)(B).
Plaintiffs fail to establish their standing to bring that claim
because they fail to demonstrate imminent injury in connection
with it. The nature of the injury supporting that claim is not
entirely clear, but it seems to rely on the following causal chain:
(i) the federal standards for coal ash disposal units (currently
the 2015 Rule) will eventually be updated; (ii) one or more of
those updates will render the federal standards more protective
than whatever standards may be in effect in Oklahoma at the
time; (iii) because Oklahoma issues lifetime permits
untethered to changing federal standards, Oklahoma facilities
will continue to operate under standards less protective than the
federal ones; and (iv) Oklahoma disposal facilities then may
dispose of coal ash in a less environmentally friendly way than
federally regulated facilities.
The lifetime-permits claim thus is premised not on a
present injury, but on the threat of a future one in the event the
federal standards become stricter than Oklahoma’s
corresponding standards. Yet plaintiffs make no effort to show
when that contingency might come to pass, much less that it
will do so imminently. “‘[S]ome day’ intentions—without any
description of concrete plans, or indeed even any specification
of when the some day will be—do not support a finding of []
‘actual or imminent’ injury.” Lujan, 504 U.S. at 564. Plaintiffs
thus fail to demonstrate standing for their lifetime permits
claim.
16
D.
We last assess plaintiffs’ standing to bring their two
comments claims. Those claims assert that EPA’s approval of
the Oklahoma Program was arbitrary and capricious because
the agency gave no adequate response to two of plaintiffs’
comments on the proposed approval—one comment conveyed
the substance of the guidelines claim, and the other related the
substance of the lifetime permits claim.
To bring a claim stemming from the violation of a
procedural right, a plaintiff “must allege injury beyond mere
procedural misstep per se.” Ctr. for Law & Educ. v. Dep’t of
Educ., 396 F.3d 1152, 1160 (D.C. Cir. 2005). The plaintiff
must also connect the procedural misstep to an agency action
that caused the invasion of a concrete interest distinct from the
procedural interest. See id. There are then “at least two links
in an adequate causal chain between a procedural violation and
injury-in-fact, one connecting the omitted procedure to some
substantive government decision that may have been wrongly
decided because of the lack of the procedure and one . . .
showing that the particularized injury that the plaintiff is
suffering . . . is fairly traceable to the agency action that
implicated the procedural requirement in question.” City of
Waukesha v. EPA, 320 F.3d 228, 234 (D.C. Cir. 2003)
(citations, brackets, and quotation marks omitted).
The first of those links is self-evident here. The omitted
procedure (inadequate responses to two comments) is
connected to a substantive government decision: EPA’s final
approval of the Oklahoma Program. But plaintiffs fail to
demonstrate the second link. Recall that plaintiffs allege their
members suffer two particularized injuries traceable to EPA’s
approval: first, injuries due to inadequate public-participation
opportunities in certain permitting actions, and second, injuries
17
due to Oklahoma’s issuance of lifetime permits. Neither set of
injuries confers standing to bring the comment claims. The
first is not traceable to EPA’s approval of the Oklahoma
Program, and the second is not imminent.
With respect to the first type of injury, we have already
explained why it would not be redressed by vacatur of EPA’s
approval of the Oklahoma Program. It follows that any
participation-related injuries are not traceable to EPA’s
approval of the Oklahoma program. Before EPA’s approval of
the Oklahoma Program, Oklahoma was subject to the federal
default regulatory regime—i.e., the 2015 Rule. And plaintiffs
concede that the 2015 Rule affords fewer public-participation
opportunities than the Oklahoma Program. So, if anything,
EPA’s approval of the Oklahoma Program increased plaintiffs’
members’ opportunities to participate in local decisions
involving coal ash disposal. Plaintiffs’ participation-related
injury, then, is not “traceable to” EPA’s approval, “the agency
action that implicated the procedural requirement in question.”
Waukesha, 320 F.3d at 234 (quotation marks omitted).
Plaintiffs’ second set of alleged injuries—those stemming
from the issuance of lifetime permits under the Oklahoma
Program—is traceable to EPA’s approval of that program. But
as we have explained, plaintiffs have not shown that applicable
federal standards are imminently likely to become more
protective than Oklahoma’s standards. And that contingency
is a necessary precondition to demonstrating imminent injury
to plaintiffs’ members from Oklahoma’s issuance of lifetime
permits (and EPA’s approval of that practice). Just as with the
other comment claim, then, plaintiffs lack standing to challenge
EPA’s ostensibly inadequate response to the comment for
substantially the same reason they lack standing to challenge
the underlying substantive deficiency the comment identified.
18
* * * * *
For the foregoing reasons, the district court’s grant of
summary judgment to EPA is vacated, and the case is
remanded with instructions to dismiss the relevant parts of the
complaint for lack of jurisdiction.
So ordered.