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Defenders of Wildlife v. Perciasepe

ELR Citation: 43 ELR 20096
Nos. 12-5122, (D.C. Cir., 04/23/2013)

The D.C. Circuit upheld a consent decree that established a schedule for EPA to initiate notice-and-comment rulemaking and make a formal decision whether to promulgate a new rule revising certain effluent limitations and effluent limitations guidelines under the CWA. Below, an association of energy companies moved to intervene, but the lower court denied its motion and went on to enter the consent decree. On appeal, the association challenged not only the lower court's denial of intervention, but also argued that the consent decree should be vacated. The association, however, lacks standing. The consent decree does not require EPA to promulgate a new, stricter rule. Instead, it merely requires that EPA conduct a rulemaking and then decide whether to promulgate a new rule—the content of which is not in any way dictated by the consent decree—using a specific timeline. Article III standing requires more than the possibility of potentially adverse regulation. In addition, the association provides no more than speculation to support its argument that the consent decree caused or will cause increased information gathering costs. Accordingly, because the association is not a party to the case, it cannot appeal the lower court's entry of the consent decree.