Waterkeeper Alliance, Inc. v. Michael Regan, No. 20-5174 (D.C. Cir. 2022)

In 2015, the Environmental Protection Agency established federal standards for coal ash disposal facilities. Under the governing statute, a state, instead of submitting to federal oversight of coal ash facilities within its borders, can develop its own permitting program and seek EPA’s approval of the state program as consistent with federal standards. Oklahoma chose that path and obtained EPA’s approval of its permitting program. Plaintiffs, a trio of environmental groups, then brought this action contesting EPA’s approval. They challenged the adequacy of Oklahoma’s permitting program on several grounds. The district court granted summary judgment to EPA on most of the claims, and Plaintiffs appealed.
 
The DC Circuit did not reach the merits because the court concluded that Plaintiffs lack standing to bring them. Thus, the court vacated the district court’s grant of summary judgment to EPA and remanded for dismissal of the relevant claims. The court explained that Plaintiffs failed to show why compelling EPA to publish guidelines for public participation in state permitting programs would redress alleged injuries to their members from deficiencies in Oklahoma’s program. Thus they lack standing to bring the citizen-suit claim.
 
Further, the court wrote that Plaintiffs have made no effort to demonstrate, for instance, likely satisfaction of the condition that there be “appropriations specifically provided in appropriations Act to carry out a [federal permitting] program in a nonparticipating state.” Moreover, the court explained that Plaintiffs failed to establish their standing to bring that claim because they fail to demonstrate imminent injury in connection with it.