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Ohio Valley Environmental Coalition, Inc. v. McCarthy

ELR Citation: 46 ELR 20151
Nos. 3:15-0271, (S.D. W. Va., 09/09/2016) (Chambers, C.J.)

A district court held that environmental groups have standing to sue EPA under the APA and CWA for its failure to disapprove West Virginia's §303(d) list, which lacks TMDLs for waterbodies previously identified as "biologically impaired." The groups' members use some, but not all, impaired waterbodies throughout the state. EPA argued that to demonstrate standing, the members must have used every impaired waterbody in the state to be injured by the lack of TMDLs for all impaired waterbodies. The court disagreed. The putative harm is inflicted by absent TMDLs, without which pollution damages waters, thereby injuring the groups. It makes little sense to ask the groups if they have suffered harm in each waterbody where TMDLs are sought, when the harm they suffered results from a statewide TMDL-setting process. This sort of blended injury and causation analysis assures Article III’s injury and causation requirements are met, while also not setting the standing hurdle unnecessarily high. Here, the groups have made a sufficient showing that they have standing to compel EPA to develop TMDLs for biologically impaired waterbodies statewide.