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American Forest & Paper Ass'n v. EPA

ELR Citation: 29 ELR 20132
Nos. No. 97-9506, 154 F.3d 1155/(10th Cir., 09/01/1998)

The court holds that a forest and paper association does not have standing to challenge the U.S. Environmental Protection Agency's (EPA's) approval of the Oklahoma national pollutant discharge elimination system (NPDES) permit program. The association sought to challenge a portion of the permit program relating to the consultation procedures between the state and the U.S. Fish and Wildlife Service to ensure compliance with the Endangered Species Act (ESA). Although §509(b) of the Federal Water Pollution Control Act provides that any interested person may challenge EPA approval of a state's NPDES program, the challenger must satisfy Article III standing requirements. The court first holds that the association's members cannot show an imminent, concrete injury from EPA's approval of the NPDES permit program. Contrary to the association's belief, all permit applications will not go through the ESA consultation process. Rather, only those permits that may affect "sensitive waters" are subject to the process. Further, the association has not alleged that any of its members hold permits to discharge into sensitive waters nor has it alleged any of its members intend to apply for such permits. 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.

Counsel for Petitioner
Russell S. Frye
Chadbourne & Parke
1101 Vermont Ave. NW, Washington DC 20005
(202) 289-3000

Counsel for Respondents
Alan D. Greenberg
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Seymour and McWilliams, JJ.