The 11th Circuit gave environmentalists a narrow victory Wednesday, ruling 2-1 that water utilities in Florida could not challenge a settlement between EPA and environmental groups that sets a timeline for adoption of numeric nutrient standards for Florida waters (Florida Wildlife Fed’n v. South Fla. Water Mngt. District, 10-10886, 11th Cir.)
No case or controversy remains, the appeals court said. Chief Judge Joel F. Dubina and Senior Judge R. Lanier Edmondson comprised the majority; Circuit Judge Charles R. Wilson dissented.
Earthjustice, which represents the environmental groups in the litigation, said the court had “struck down a challenge filed by polluting industries and upheld a historic clean water settlement between the U.S. Environmental Protection Agency and Earthjustice. The 2009 settlement requires EPA to set limits on sewage, fertilizer and manure in Florida’s waterways.”
At issue was a consent decree approved by a district court on Dec. 30, 2009, which required issuance of water quality standards for Florida’s lakes and streams by December 2010.
“The only way that this court could issue a decision that ‘directly redresses the injury suffered’ from the December 2010 rule is if we were able to strike down the rule itself,” the majority said. “In other words, the rule would have to depend on the validity of the consent decree. Because this is not the case, the appellants’ alleged injuries stemming from the December 2010 rule are not redressable and do not present a justiciable claim under the mootness doctrine.”
Here’s a little more from the court on standing:
When third-party intervenors appeal a consent decree that both the nominal plaintiffs and defendants support, the court’s standing analysis becomes more complicated. While the case is pending in the district court, there is a live case or controversy between the plaintiff and defendant, so the intervenors are free to challenge the proposed consent decree without having to prove standing independently. Once the district court approves the consent decree, however, the original case or controversy evaporates, and an intervenor appealing the decree must assert an independent case or controversy in order to maintain standing.
Wilson didn’t like the majority’s reasoning:
Under the majority’s view of traceability and redressibility [sic], no one could ever have standing to challenge a consent decree that is entered prior to a final agency rulemaking on the same matter.
Here’s the court’s initial summary of its decision:
Intervenors-appellants Florida Water Environment Association Utility Council and South Florida Water Management District appeal the district court’s order approving a consent decree between [EPA] and a group of environmentalist organizations. The consent decree settled a suit filed by the plaintiffs against the EPA that alleged that the agency failed to promulgate timely new water-quality standards for the state of Florida. The appellants claim that the consent decree is substantively and procedurally unreasonable and that the district court abused its discretion by approving the decree. Because the appellants have not demonstrated a live case or controversy that would give this court jurisdiction over their case, we dismiss their appeal.
Here’s a portion of that story:
One interested observer was Chris Johnson, chief of water quality technical support for Alabama’s Department of Environmental Management. He said if EPA can set standards for Florida it could do it for other states.
“It’s certainly kind of precedent-setting,” Johnson said. “All states have their eyes on Florida.”