American Forest & Paper Ass'n v. United States Environmental Protection Agency

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 1 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk

AMERICAN FOREST & PAPER
ASSOCIATION,

Petitioner,

v.

UNITED STATES
ENVIRONMENTAL PROTECTION
AGENCY; JANE N. SAGINAW,
Regional Administrator, United States
Environmental Protection Agency, 97-9506
Region 6,

Respondents,

-------------------------------

AMERICAN PETROLEUM
INSTITUTE, AMERICAN WOOD
PRESERVERS INSTITUTE,
CHAMBER OF COMMERCE OF
THE UNITED STATES
INDEPENDENT PETROLEUM
ASSOCIATION OF AMERICA,
MICHIGAN MANUFACTURERS
 ASSOCIATION, NATIONAL
ASSOCIATION OF HOME
BUILDERS, NATIONAL
ASSOCIATION OF
MANUFACTURERS, THE STATE
CHAMBER, OKLAHOMA’S
ASSOCIATION OF BUSINESS AND
INDUSTRY,

Amici Curiae.

ON PETITION FOR REVIEW OF FINAL AGENCY ACTION
BY THE ENVIRONMENTAL PROTECTION AGENCY

Russell S. Frye, of Chadbourne & Parke, LLP, Washington, D.C. (Erin Buckley
Bradley, Chadbourne & Parke, LLP, and Cynthia H. Evans of American Forest &
Paper Association, Inc., Washington, D.C., with him on the briefs) for Petitioner.

Alan D. Greenberg, Attorney, U.S. Department of Justice, Environment & Natural
Resources Division, Denver, Colorado (Lois J. Schiffer, Assistant Attorney
General, U.S. Department of Justice, Environment & Natural Resources Division,
Denver, Colorado, and Steven Neugeboren and Thomas S. Marshall, U. S.
Environmental Protection Agency, Washington, D.C., with him on the brief) for
Respondents.

Scott M. DuBoff, John W. Heiderscheit III, Wright & Talisman, P.C.,
Washington, D.C., Counsel for Amici Curiae, Alice Crowe, Washington, D.C., on
the brief for American Petroleum Institute, Robin S. Conrad, National Chamber
Litigation Center, Inc., Washington, D.C., on the brief for Chamber of Commerce
of the United States, David M. Sweet, Washington, D.C., on the brief for
Independent Petroleum Association of America, J. Walker Henry, Clark, Hill
P.L.C, Detroit, Michigan, on the brief for Michigan Manufacturers Association,
Alec Ugol, Washington, D. C., on the brief for National Association of Home
Builders, Jan Amundson, Washington, D. C., on the brief for National Association
of Manufacturers, and James R. Barnett, Kerr, Irvine, Rhodes & Ables, Oklahoma
City, Oklahoma, on the brief for The State Chamber, Oklahoma’s Association of
Business and Industry, submitted an Amici Curiae brief in support of Petitioner.

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Before SEYMOUR, Chief Judge, McWILLIAMS and MURPHY, Circuit Judges

MURPHY, Circuit Judge.

American Forest and Paper Association (Association) brought this action

challenging the Environmental Protection Agency’s (EPA) approval of the

Oklahoma Pollutant Discharge Elimination System permit program. The

Association specifically challenges that portion of the permit program relating to

the consultation procedures between the State of Oklahoma and the United States

Fish and Wildlife Service to ensure compliance with the Endangered Species Act.

Because this court concludes the Association lacks constitutional standing, we

dismiss their claims.

I. BACKGROUND

Congress passed the Clean Water Act (Act) in an effort “to restore and

maintain the chemical, physical, and biological integrity of the Nation’s waters.”

33 U.S.C. § 1251(a). In furtherance of these goals, § 301(a) of the Act makes it

unlawful to discharge any pollutant into navigable waters unless specifically

authorized by the Act. See id. § 1311(a). Section 402 of the Act establishes the

National Pollutant Discharge Elimination System (NPDES). See id. § 1342.

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Under the NPDES, the Administrator of the EPA has authority to issue permits for

the discharge of pollutants. See id. § 1342(a).

Although Congress granted the EPA initial authority to issue NPDES

permits, it intended that the states would eventually assume primary responsibility

over the NPDES program. See id. § 1251(b). Section 402(b) of the Act thus

provides that each state may establish and administer its own permit program,

subject to approval and oversight by the EPA. See id. § 1342(b). So long as a

proposed state permit program satisfies several enumerated conditions, the EPA

must approve the program. See id. The EPA retains oversight authority over

state permit programs and may withdraw its approval of a particular program if it

determines the state is not complying with the Act. See id. § 1342(c)(3). The

EPA further retains oversight authority over individual permits issued by a state

and may veto a proposed permit if it determines the permit would violate the Act.

See id. § 1342(d).

In 1994, the state of Oklahoma sought approval from the EPA to establish

and administer its own NPDES permit program. The EPA and the Oklahoma

Department of Environmental Quality (ODEQ) agreed to a procedure whereby

ODEQ and the Fish and Wildlife Service (Service) would work together on permit

applications to ensure compliance with the Endangered Species Act (ESA). This

consultation procedure is reflected in a Memorandum of Understanding (MOU)

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and a Memorandum of Agreement, 1 both of which are incorporated by reference

into the final rule approving Oklahoma’s permit program. See 61 Fed. Reg.

65,047, 65,053 (1996).

The MOU was entered into between ODEQ and the Service in March 1995.

See Oklahoma Dep’t of Envtl. Quality & U.S. Fish and Wildlife Serv.,

Memorandum of Understanding (1995) [hereinafter “MOU”]. Under the MOU,

the Service agreed to provide to ODEQ on an annual basis various information

relating to “federally listed threatened, endangered and proposed [species], as

well as designated or proposed critical habitat, that occur in Oklahoma and that

are dependent upon aquatic habitats for their existence.” Id. at 1. ODEQ agreed

to use the information provided by the Service to identify “sensitive waters” in

the state. Id.

The MOU further provides that “[w]hen a new NPDES permit application,

or an application for a modification of an existing permit, is received by [O]DEQ

for a sensitive water,” ODEQ will submit various specified information to the

Service. 2 Id. Within thirty days after submitting the information to the Service,

1
The Memorandum of Agreement between ODEQ and the EPA essentially
adopts the procedures specified in the MOU. See Memorandum of Agreement
Between Oklahoma Dep’t of Envtl. Quality & U.S. EPA (Region 6) at 26-27 (June
7, 1996).
2
Specifically, ODEQ must submit the following information to the Service:
(1) the facility name; (2) the location, including county and legal
(continued...)

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ODEQ must inform the Service of its initial determination as to “whether the

proposed permit ‘is not likely to adversely affect’ or ‘may affect’ a federally-

listed species, designated critical habitat, jeopardize a proposed species, or

adversely modify or destroy a proposed critical habitat.” Id. If the Service

disagrees with ODEQ’s initial determination, it must inform ODEQ of its

nonconcurrence. See id. If either the Service or ODEQ determines that a

proposed permit is likely to have an adverse effect on a species or habitat, then

ODEQ and the Service will “work together to modify the permit application to

avoid the adverse effect.” Id. at 2. At this point in the consultation process,

additional information may be requested of the permit applicant. See id.

If the Service and ODEQ are unable to reach agreement on modifications to

the permit application to avoid the adverse effect on species or habitat, the MOU

requires ODEQ to notify the EPA. See id. The EPA may make a formal objection

to the permit application if either the Service or ODEQ determines that the

proposed action “may adversely affect listed species or critical habitat.” Id. The

EPA is required to formally object to the permit application and assume

(...continued)
2

description; (3) the receiving waters to be affected by the permitted
activity; (4) the standard industrial classification of the permit,
describing the type of facility and discharge expected; and (5)
available data on the physical, chemical, and biological
characteristics of the receiving waters.
MOU at 1.

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permitting authority if the Service determines the proposed action is “likely to

jeopardize the continued existence of a listed or proposed species or destroy or

adversely modify designated or proposed critical habitat.” Id. If the EPA

assumes permitting authority, it must then consult with the Service, in accordance

with § 7(a) of the ESA, 3 to ensure compliance with the ESA. See id.

With respect to renewals of existing permits, 4 the MOU requires ODEQ to

submit to the Service on an annual basis a list of permits which ODEQ expects

will be resubmitted for renewal the following year. See id. If an anticipated

application for renewal appears to affect “sensitive water” as identified by the

Service, the Service may request additional information on that permit. See id.

The Association challenges the EPA’s approval of Oklahoma’s NPDES

permit program, arguing that the EPA acted outside its authority by requiring

Oklahoma to comply with the ESA through the consultation process with the

Service. The EPA contends that the Association lacks standing to bring this

3
Section 7(a) of the ESA requires federal agencies to consult with the
Secretary of the Interior, Commerce, or Agriculture to ensure that any action
“authorized, funded, or carried out by such agency . . . is not likely to jeopardize
the continued existence of any endangered species or threatened species or result
in the destruction or adverse modification of habitat of such species which is
determined . . . to be critical.” 16 U.S.C. § 1536(a)(2).
4
The Act provides that NPDES permits may not be issued for longer than
five years. See 33 U.S.C. § 1342(b)(1)(B).

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action; that this action is not yet ripe for review; and that it acted within its

authority in developing procedures to facilitate compliance with the ESA.

II. STANDING

Before addressing the merits of the Association’s challenge to the EPA’s

approval of Oklahoma’s NPDES permit program, this court must first determine

whether the Association has standing to bring its claims. The Association brought

this action under § 509(b) of the Clean Water Act, which grants the federal courts

of appeals original jurisdiction over determinations by the EPA regarding a state

NPDES permit program. See 33 U.S.C. § 1369(b)(1)(D). The Act provides that

“any interested person” may bring suit to challenge the EPA’s determination. 5 Id.

§ 1369(b)(1).

The Association is a “nonprofit trade association whose member companies

grow, harvest, and process wood and wood fiber, and manufacture pulp, paper,

and paperboard products and solid wood products.” Its “general nature and

purpose is to provide a forum for sharing ideas and information, and to represent

the interests of its members in legislative and regulatory matters.” In its

statement of subject matter jurisdiction, required by Federal Rule of Appellate

Procedure 28(a)(2), the Association states that its “members include NPDES

Application for review must be made within 90 days from the date of the
5

EPA’s action which is the subject of the challenge. See 33 U.S.C. § 1369(b)(1).

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permit holders in Oklahoma.” There is no other information in the record

concerning the Association’s membership.

Although § 509(b) of the Act broadly provides that “any interested person”

may challenge the EPA’s approval of a state NPDES permit program, a plaintiff

must nevertheless satisfy the standing requirements of Article III of the U.S.

Constitution to bring such an action. See Valley Forge Christian College v.

Americans United for Separation of Church & State, Inc., 454 U.S. 464, 487 n.24

(1982) (stating that congressional enactment may not lower threshold

requirements of standing under Article III); Montgomery Envtl. Coalition v.

Costle, 646 F.2d 568, 577-78 (D.C. Cir. 1980) (stating that § 509(b) of the Clean

Water Act incorporates injury-in-fact rule for standing); cf. Public Interest

Research Group v. Magnesium Elektron, Inc., 123 F.3d 111, 119 (3d Cir. 1997)

(“Congress’ power to authorize citizen suits [under the Clean Water Act] and

draft citizens as private attorneys general is inherently limited by the ‘case or

controversy’ clause of Article III of the Constitution.”).

Article III restricts federal court adjudication to actual cases or

controversies. See Allen v. Wright, 468 U.S. 737, 750 (1984). To satisfy the

standing requirement of Article III, the Association must demonstrate the

following:

(1) that [it has] suffered an “injury in fact”--an invasion of a
judicially cognizable interest which is (a) concrete and particularized

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 and (b) actual or imminent, not conjectural or hypothetical; (2) that
there [is] a causal connection between the injury and the conduct
complained of--the injury must 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; and (3) that it [is] likely, as
opposed to merely speculative, that the injury will be redressed by a
favorable decision.

Bennett v. Spear, 117 S. Ct. 1154, 1163 (1997). “The party invoking federal

jurisdiction bears the burden of establishing these elements.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561 (1992).

An association has standing to bring suit on behalf of its members if “‘(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.’” United Food & Commercial Workers Union

Local 751 v. Brown Group, Inc. , 517 U.S. 544, 553 (1996) (quoting Hunt v.

Washington State Apple Adver. Comm’n , 432 U.S. 333, 343 (1977)). The

Supreme Court has recently recognized that the first requirement of associational

standing embodies the Article III requirements of injury in fact, causal connection

to the defendant’s conduct, and redressability. See id. at 555.

The EPA argues the Association lacks constitutional standing because its

members cannot show an imminent, concrete injury from the EPA’s approval of

Oklahoma’s NPDES permit program. The Association, whose members include

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current NPDES permit holders in Oklahoma, contends its members are injured by

the consultation procedures contained in Oklahoma’s permit program because of

the increased costs and delays in processing permits and because of the threat of

veto by the EPA. 6
The Association asserts that under the procedures set forth in

the MOU, all modifications and renewals of existing permits are subject to

consultation with the Service, thereby resulting in significant costs and delays.

Further, according to the Association, under the procedures the EPA is required to

veto any permit if the Service objects based on ESA grounds, thus increasing the

likelihood that permit applications will not be approved.

The Association overstates the scope of the consultation procedures. Under

the MOU, all permit applications will not go through the consultation process.

Rather, only those permits that may affect “sensitive waters” are subject to the

process. See MOU at 1 (stating that “[w]hen a new NPDES permit application, or

an application for a modification of an existing permit, is received by [O]DEQ for

a sensitive water ,” ODEQ will submit various information to the Service

(emphasis added)); id. at 2 (“If an anticipated application for renewal appears to

6
The Association has not asserted that as an organization it has been injured
by the EPA’s approval of Oklahoma’s NPDES permit program. Cf. Warth v.
Seldin, 422 U.S. 490, 511 (1975) (noting that an “association may have standing
solely as the representative of its members” or “in its own right to seek judicial
relief from injury to itself”).

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be located in a sensitive water identified by the Service, the Service can request

additional information on that permit.” (emphasis added)).

Although the Association has asserted that its members include current

NPDES permit holders in Oklahoma, it has not alleged that any of its members

hold permits to discharge into sensitive waters nor has it alleged that any of its

members intend to apply for such a permit. 7
During oral argument, counsel for

the Association suggested it could be inferred that at least one of its members

currently holds a permit to discharge into sensitive waters based on its allegation

that its members will be adversely affected by the consultation procedures. We

decline to make such an inference. “It is a long-settled principle that standing

cannot be inferred argumentatively from [the party’s] averments . . . but rather

must affirmatively appear in the record.” FW/PBS, Inc. v. City of Dallas , 493

U.S. 215, 231 (1990) (internal quotations and citations omitted); see also Warth v.

Seldin , 422 U.S. 490, 518 (1975) (“It is the responsibility of the complainant

clearly to allege facts demonstrating that he is a proper party to invoke judicial

resolution of the dispute and the exercise of the court’s remedial powers.”).

7
When asked specifically during oral argument whether there was anything
in the record indicating that any of the Association’s members held permits to
discharge into sensitive waters, counsel for the Association responded in the
negative.

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 Even assuming the Association’s assertions of injury are sufficiently

concrete and imminent to satisfy Article III, absent an allegation that its members

currently discharge or intend to discharge into sensitive waters, the Association

cannot demonstrate that its members are themselves “among the injured.” Lujan ,

504 U.S. at 563 (“‘[T]he “injury in fact” test requires more than an injury to a

cognizable interest. It requires that the party seeking review be himself among

the injured.’” (quoting Sierra Club v. Morton , 405 U.S. 727, 734-35 (1972)).

This court therefore concludes the Association lacks standing to pursue this

action. 8 Cf. Sierra Club v. Morton , 405 U.S. 727, 735 (1972) (holding

8
After oral argument was heard in this case, the Fifth Circuit in American
Forest & Paper Ass’n v. United States Environmental Protection Agency, 137
F.3d 291 (5th Cir. 1998), held that the Association had standing to challenge the
EPA’s approval of Louisiana’s NPDES permit program. See id. at 296. The court
further concluded that the dispute was ripe for review and that the EPA exceeded
its authority by conditioning its approval of Louisiana’s permit program on the
state’s compliance with the ESA. See id. at 297-99. In holding that the
Association had standing to pursue its claims, the court rejected the EPA’s
argument that the permit holders’ injuries were speculative. See id. at 296. The
court concluded that the “[p]ermit holders’ imminent need to comply, coupled
with EPA’s frank announcement of its intentions [i.e., the EPA’s identification of
the circumstances in which it will veto a proposed permit], belies the agency’s
claim that any injury is speculative.” Id.
It is unclear, however, whether the specific consultation procedures at issue
in the Fifth Circuit case are the same as the relevant procedures in this case.
When discussing Louisiana’s permit program, the court summarily stated that the
“EPA directed the Louisiana Department of Environmental Quality (‘LDEQ’) to
submit proposed permits to [the Fish and Wildlife Service] and [the National
Marine Fisheries Service] for review.” Id. at 294. The court did not discuss
whether all permit applications or only those applications affecting sensitive
(continued...)

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environmental group lacked standing to challenge Forest Service permit allowing

development in national forest because “[n]owhere in the pleadings or affidavits

did [plaintiff] state that its members use [the forest] for any purpose”); Public

Interest Research Group , 123 F.3d at 123 (holding public interest group and its

members lacked standing to challenge manufacturer’s alleged violations of

NPDES permit because neither group nor members could show injury from

violations).

III. CONCLUSION

This court concludes the Association lacks standing to pursue this action.

We therefore DISMISS their claims.

8
(...continued)
waters must be routed through the consultation process. In fact, the term
“sensitive water” does not even appear in the Fifth Circuit’s opinion. The EPA’s
final approval of Louisiana’s application to administer its own NPDES program,
published in the Federal Register, also does not specify the exact procedures to be
followed nor does it mention the term “sensitive water.” See 61 Fed. Reg.
47,932 (1996). Rather, like the EPA’s approval of Oklahoma’s permit program,
the EPA’s approval of Louisiana’s program incorporates only by reference the
memorandum of understanding between the state and the Service. See id. at
47,934.

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