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Dover, City of v. United States Environmental Protection Agency

ELR Citation: 44 ELR 20091
Nos. 12-1994, (D.D.C., 04/14/2014) (Bates, J.)

A district court dismissed three New Hampshire cities' citizen suit challenging EPA's decision to approve New Hampshire's impaired waters list under the CWA. The cities lack standing because the regulatory decisions that the cities challenge have not yet caused them harm, and whether cities will be harmed is still uncertain. The cities alleged that as a result of the listing decision, they will receive NPDES permits. But none of the cities have yet been issued permits with the nitrogen limits of which they complain. Because it is uncertain whether the permits they are issued in the future will contain those limits, they have not alleged a cognizable Article III injury. And even if EPA had never listed those waters as impaired, the cities might have to change their behavior anyway because of a separate permitting process. In short, the cities' injury related to the permits is speculative, is not caused by EPA's decision to approve New Hampshire’s §303(d) list, and is not redressable by overturning the listing decision.