Ouachita Riverkeeper et al v. United States Environmental Protection Agency et al
MEMORANDUM OPINION AND ORDER: The court grants Defendants' Motion to Dismiss (Doc. 12 ); grants Intervenor Georgia-Pacific LLC's Motion to Dismiss (Doc. 24 ); denies as moot Plaintiffs' Unopposed Motion for Oral Argument on Defendants' Motion to Dismiss (Doc. 22 ); and dismisses without prejudice this action for lack of subject matter jurisdiction. (Ordered by Judge Sam A Lindsay on 1/19/2016) (sss)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
OUACHITA RIVERKEEPER, INC. AND
U.S. ENVIRONMENTAL PROTECTION
AGENCY AND GINA MCCARTHY,
in her official capacity as Administrator
of the United States Environmental
Civil Action No. 3:14-CV-4495-L
MEMORANDUM OPINION AND ORDER
Before the court is Defendants’ Motion to Dismiss (Doc. 12), filed March 20, 2015;
Plaintiffs’ Unopposed Motion for Oral Argument on Defendants’ Motion to Dismiss (Doc. 22), filed
April 21, 2015; and Intervenor Georgia-Pacific LLC’s Motion to Dismiss (Doc. 24), filed June 24,
After considering the motions, briefs, record, and applicable law, the court grants
Defendants’ Motion to Dismiss (Doc. 12); grants Intervenor Georgia-Pacific LLC’s Motion to
Dismiss (Doc. 24); denies as moot Plaintiffs’ Unopposed Motion for Oral Argument on Defendants’
Motion to Dismiss (Doc. 22); and dismisses without prejudice this action for lack of subject matter
Factual and Procedural Background
Plaintiffs Ouachita Riverkeeper, Inc. and Louisiana Environmental Action Network
(collectively, “Plaintiffs”) brought this action against the U.S. Environmental Protection Agency
Memorandum Opinion and Order – Page 1
(“EPA”) and Gina McCarthy, in her official capacity as Administrator of the United States
Environmental Protection Agency (collectively, “Defendants”) on December 22, 2014. Plaintiffs
seek judicial review Defendants’ decision to not object to a draft permit (“Permit”) the Arkansas
Department of Environmental Quality (“ADEQ”) proposed to issue to Georgia-Pacific LLC pursuant
to the State’s Clean Water Act National Pollution Discharge Elimination System (“NPDES”) permit
program. Plaintiffs seek an order declaring that the Permit violates the Clean Water Act and
remanding Defendants’ decision not to object to the draft Permit to the EPA for further
consideration. Plaintiffs also seek attorney’s fees. Plaintiffs allege that: (1) the Permit authorizes
violations of the Administrative Procedure Act (“APA”) that the EPA failed to consider; (2) the EPA
has failed to explain its decision not to object to the Permit in light of the Permit’s illegality under
the Clean Water Act; (3) and the EPA based its decision to not object on factors other than the
Permit’s consistence with the Clean Water Act. Alternatively, Plaintiffs allege that the EPA’s
decision not to object to the Permit was arbitrary, capricious, an abuse of discretion, and not made
in accordance with the law.
On March 20, 2015, Defendants moved to dismiss the action for lack of subject matter
jurisdiction. On June 24, 2015, Intervenor Georgia-Pacific LLC (“Georgia-Pacific”) moved to
dismiss the action for essentially the same reasons as set forth in Defendants’ Motion to Dismiss.
The motions have been fully briefed and are ripe for decision.
Dismissal for Lack of Subject Matter Jurisdiction Under Rule 12(b)(1)
A federal court has an independent duty, at any level of the proceedings, to determine
whether it properly has subject matter jurisdiction over a case. Ruhgras AG v. Marathon Oil Co.,
526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own
initiative even at the highest level.”); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir.
Memorandum Opinion and Order – Page 2
2005) (A “federal court may raise subject matter jurisdiction sua sponte.”) (citation omitted).
Standing pertains to subject matter jurisdiction and can be raised in a Rule 12(b)(1) motion to
dismiss. Cobb v. Central States, 461 F.3d 632, 635 (5th Cir. 2006); Lee v. Verizon Commc’ns Inc.,
954 F. Supp. 2d 486, 496 (N.D. Tex. 2013), aff’d, ––– F. App’x ––––, 2015 WL 4880972 (5th Cir.
Aug.17, 2015). The doctrine of standing deals with the question of who may bring suit in federal
court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing “involves both
constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.”
Warth v. Seldin, 422 U.S. 490, 498 (1975). A plaintiff must satisfy constitutional and prudential
requirements to establish standing. See Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560
(5th Cir. 2001). The issue raised by Defendants’ motion is constitutional standing, which requires
a plaintiff to establish: (1) injury-in-fact that is concrete and actual or imminent, not hypothetical;
(2) a fairly traceable causal link between the injury and the defendant’s actions; and (3) that the
injury will likely be redressed by a favorable decision. See Little v. KPMG LLP, 575 F.3d 533, 540
(5th Cir. 2009).
Challenges to subject matter jurisdiction are either facial or factual in nature. Paterson v.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). If a party relies only its motion, the challenge to
subject matter jurisdiction is considered a facial attack, and the court’s determination of the motion
is based on the sufficiency of the plaintiff’s pleadings, which must be accepted as true. Id. A factual
attack of the court’s subject matter jurisdiction, on the other hand, “challenges the facts on which
jurisdiction depends and matters outside of the pleadings, such as affidavits and testimony.” Oaxaca
v. Roscoe, 641 F.2d 386, 391 (5th Cir. 1981). When a motion to dismiss for lack of subject matter
jurisdiction is supported by evidence, it is considered a factual attack, and “no presumptive
truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not
Memorandum Opinion and Order – Page 3
preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Williamson
v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). The court is, therefore, “free to weigh the evidence and
satisfy itself as to the existence of its power to hear the case.” Id.
In response to a factual attack, the plaintiff, as the party seeking to invoke jurisdiction, has
the burden of submitting evidence and proving by a preponderance of the evidence the existence of
subject matter jurisdiction. Paterson, 644 F.2d at 523. A factual attack may occur at any stage of
the proceedings. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). Regardless
of whether the attack is facial or factual, the party asserting federal jurisdiction “constantly bears
the burden of proof that jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158,
161 (5th Cir. 2001) (per curiam). “When a Rule 12(b)(1) motion is filed in conjunction with other
Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing
any attack on the merits.” Id. (citations omitted).
Defendants and Intervenor Georgia-Pacific argue, among other things, that the court lacks
subject matter jurisdiction because Plaintiffs do not have standing to challenge EPA’s decision not
to object to the draft Permit issued by the State of Arkansas pursuant to the state’s Clean Water Act.
Specifically, Defendants contend:
Plaintiffs lack standing to bring this lawsuit, because the injuries they
allege—their members’ purported loss of recreational and aesthetic use of the
Ouachita River, loss of enjoyment in and value of their properties, and “concerns and
anxiety about the potential for future harm” due to Georgia-Pacific’s
discharges—were not caused by EPA’s decision and would not be redressed by a win
in this case.
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Defs.’ Br. at 14 (Doc. 13). Georgia-Pacific similarly moves to dismiss for lack of standing, arguing:
“In this case, presuming—but not admitting—that Plaintiffs have suffered an injury, under no factual
circumstances was their injury caused by EPA’s decision to not object to the draft NPDES permit,
nor would such an injury be redressed by EPA’s objection now.” Georgia-Pacific Br. at 19 (Doc.
In response, as to causation, Plaintiffs contend that their alleged injuries were caused by EPA
decision because, notwithstanding that the ADEQ ultimately authorized the discharges by issuing
the NPDES permit under Arkansas law, EPA made a decision “not to require reform of the ADEQ
permit” and “allowed ADEQ to issue the permit as is . . . .” Pls.’ Opp’n at 11-12 (Doc. 17). With
regard to redressability, Plaintiffs contend that EPA can still object to the proposed Permit,
notwithstanding the that more than four years has passed since ADEQ issued the Permit. See id. at
Having considered Defendants’ and Georgia-Pacific’s respective arguments in support of
dismissal for lack of standing, Plaintiffs’ response, and applicable law, the court concludes that
Plaintiffs have failed to demonstrate that (i) their alleged injuries are fairly traceable to EPA’s
December 16, 2009 decision not to object to the draft Permit the ADEQ proposed to issue to
Georgia-Pacific LLC pursuant to the State’s NPDES; and (ii) their members’ alleged injuries, if any,
are likely to be redressed if Plaintiffs were to prevail in this lawsuit.
With regard to causation, the court concludes that Plaintiffs’ alleged injuries are caused by
the permitted discharges themselves. The discharges are caused by third-parties, namely, GeorgiaPacific, which discharged the wastewater pursuant to the permit, and ADEQ, which authorized
Georgia-Pacific to discharge the wastewater by issuing the NPDES permit pursuant to Arkansas law.
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The permit was issued by the State of Arkansas, not the EPA. As correctly argued by Georgia-Pacific:
The problem for Plaintiffs is that the only conceivable cause of their injuries
is the Permit itself (which authorized the discharges they claim to be injurious). The
Permit was issued by the State, not EPA. Therefore, EPA’s decision not to object
was not the cause of Plaintiffs’ alleged injuries. Instead, the state’s subsequent
decision to permit the Permit was the cause. Plaintiffs had the right to challenge this
decision on the grounds that the Permit did not meet applicable CWA guidelines, but
for whatever reason, they elected not to do so. The simply cannot be allowed to
resuscitate their allegations now, especially here against the EPA, as EPA did not
cause their injuries.
Georgia-Pacific Br. at 20 (Doc. 24).
As to redressability, Plaintiffs have not provided the court with any authority under the Clean
Water Act, and the court is aware of none, authorizing EPA to object to a proposed Permit more than
four years after the final permit has been issued and gone into effect. The statute specifies a 90-day
window within which EPA may object, after which the state is free to issue the permit, which the
State of Arkansas did in this instance.
See 33 U.S.C. § 1342(d)(2).
ADEQ is the final
decisionmaker authorized to issue the permit, and no authority has been provided to this court that
would require ADEQ to honor an untimely objection by EPA.
In summary, the court concludes that Plaintiffs lack standing to bring this lawsuit because
the injuries they allege were not caused by EPA’s decision and would not be redressed by a
favorable decision in this lawsuit.
For the reasons herein stated, the court grants Defendants’ Motion to Dismiss (Doc. 12);
grants Intervenor Georgia-Pacific LLC’s Motion to Dismiss (Doc. 24); denies as moot Plaintiffs’
Unopposed Motion for Oral Argument on Defendants’ Motion to Dismiss (Doc. 22); and dismisses
without prejudice this action for lack of subject matter jurisdiction.
Memorandum Opinion and Order – Page 6
It is so ordered this 19th day of January, 2016.
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order - Page 7
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