May 5, 2014

Barnum Timber Co. v. EPA, standing to sue, and the Clean Water Act

By Damien M. Schiff Senior Attorney

Last last month, after more than a decade of litigation, we were able to settle amicably our lawsuit on behalf of Barnum Timber Co. against the EPA over the agency’s designation of Redwood Creek as an impaired water under Section 303(d) of the Clean Water Act.  Interesting in that, also last month, the District Court for the District of Columbia ruled, in City of Dover v. EPA, that a collection of plaintiff towns lacked standing to sue EPA over the impaired listing of New Hampshire’s Great Bay.  That’s interesting because the Ninth Circuit Court of Appeals ruled in the first Barnum Timber Co. appeal that a landowner has standing to sue EPA over an impaired water listing on the ground that such a listing reduces land values.  The Dover district court distinguished Barnum Timber Co. on the basis that, in Dover, the plaintiffs grounded their standing on the increased regulatory red-tape attributable to the impaired listing, rather than directly to any economic harm.  Now, this distinction to me seems somewhat unconvincing, given that the reason for the loss in value of Barnum’s timberlands is because, with the listing, Barnum cannot do as much on its property as it might otherwise were the listing removed.  In other words, the real or perceived regulatory restriction attributable to a water’s impaired listing—present as much in Dover as in Barnum Timber Co.—causes an obvious economic harm, regardless of whether that harm is direct or indirect.

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