The Conservation Law Foundation has filed a lawsuit against EPA, alleging that EPA's approval of nitrogen total maximum daily loads ("TMDLs") in embayments located on Cape Cod and Nantucket violated the Clean Water Act, in part because EPA did not analyze the impact of climate change. Conservation Law Found., Inc. v. U.S. Envtl. Prot. Agency, No. 1:13-cv-12704-MLW (D. Mass. Oct. 24, 2013).

The Conservation Law Foundation brought similar claims against EPA back in 2010, but the United States District Court for the District of Massachusetts granted EPA's motion for summary judgment on August 29, 2013, holding that plaintiffs did not have standing to assert their claims. Conservation Law Found., Inc. v. U.S. Envtl. Prot. Agency, 2013 U.S. Dist. LEXIS 123731, No. 1:10-cv-11455-MLW (D. Mass. Aug. 29, 2013). With regard to its climate change allegations, plaintiffs relied on affidavits from two members, but the court held the affidavits were insufficient to "place injury in fact in genuine dispute" because they did "not assert any connection between the declarants' injuries and the EPA's alleged failure to consider the effects of climate change when approving the TMDLs." Id. at *33, *37. In addition, the court held that plaintiffs failed to show that the injury would be redressed by a favorable ruling:

The fact that, in general, more TMDLs may be required and adjustments to pollution controls may need to be made in some areas as a result of climate change does not constitute evidence that the EPA's inclusion of the effects of climate change in the TMDLs at issue in this case would likely alter the pollution levels that are affecting plaintiffs' interests in the particular embayments on Cape Cod involved in the instant case.

Id. at *48.

The latest complaint filed by the Conservation Law Foundation includes more specific climate change allegations than the prior complaint from the unsuccessful 2010 action. For example, the 2013 complaint cites a 2002 paper titled "Climate Change Impacts on U.S. Coastal and Marine Ecosystems," coauthored by EPA scientist James Titus, which found that

[e]stuarine impacts from climate change will be manifested through exacerbation of current stresses, including those imposed by a significantly altered nitrogen cycle.... Climate change will likely influence the vulnerability of estuaries to eutrophication in several ways, including changes in mixing characteristics caused by alterations in freshwater runoff, and changes in temperature, sea level, and exchange with the coastal ocean.

Compl. ¶ 109 (alteration and omission in original). The complaint also alleges that climate and weather data from monitoring stations near the Cape Cod embayments show "a trend of increasing ambient temperatures consistent with and/or more accelerated than predictions in climate science literature that was created by or available to EPA at the time of its review and approval of the Cape Cod TMDLs." Id. ¶ 118. Thus, the complaint alleges that EPA's failure to consider climate change when evaluating the TMDLs was arbitrary and capricious. The complaint further alleges that the improper approval of the TMDLs "further endangers these already degraded waters" and that "[a]s a result of Defendants' acts and omissions, including its omission of any climate change analysis..., CLF members have suffered and will continue to suffer injuries to their aesthetic, environmental, recreational, and economic interests in enjoying and utilizing the affected Cape Cod waters." Id. ¶ 135.

Whether this 2013 lawsuit will be more successful than the 2010 lawsuit remains to be seen. A scheduling conference was set for January 24, 2014.

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