Our Children's Earth Foundation v. United States Environmental Protection Agency

In 1972 Congress passed the Clean Water Act (“CWA” or “the Act”) “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” See Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act of 1972), Pub.L. No. 92-500, 86 Stat. 816 (1972), codified at 33 U.S.C. § 1251 (a). Central to that legislation and later amendments is the notion that pollution discharges would be controlled through technology-based effluent limitations.

Environmental advocates, Our Children’s Earth Foundation and Ecological Rights Foundation (collectively “OCE”), filed this citizen suit under the Clean Water Act, 33 U.S.C. § 1251 et seq., alleging that the Environmental Protection Agency (“EPA” or “the Agency”) has failed to fulfill its mandate to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards. Specifically, OCE claims that EPA violated its statutorily-mandated duties by abandoning technology-based review in favor of hazard-based review; neglecting to identify new polluting sources; and failing to publish timely plans for future reviews. See CWA § 301(b), 33 U.S.C. § 1311 (b); CWA §…

concurring in part and dissenting in part:

I agree with the majority that the CWA does not unambiguously state that the EPA must conduct a technology-based review of its effluent guidelines. Because the CWA does not clearly mandate a particular method of review, I would hold that the district court properly refused to exercise jurisdiction.

Environmental advocates OCE brought suit under section 505(a)(2) of the CWA. This section provides jurisdiction in the district court for any claims alleging “a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.” CWA § 505(a)(2). We have recognized that only “clear-cut” nondiscretionary duties give rise to jurisdiction under this section. See Farmers Union Cent. Exch., Inc., 881 F.2d 757, 760 (9th Cir.1989). We have further emphasized that section 505(a)(2) was “intended to provide relief only in a narrowly-defined class of situations in which the Administrator failed to perform a mandatory function,” and was not intended to “permit the court to direct the manner in which any discretion given the Administrator in the performance of those functions should be exercised.”…

BACKGROUND

OCE’s amended complaint contains four claims alleging non-compliance with what OCE characterizes as EPA’s man- datory duties under the Act: 1 Sections of the Clean Water Act, 33 U.S.C. § 1251 et seq., are conven- tionally cited using the sections of the original Act, rather than the section numbers assigned after codification in the U.S. Code. We follow that con- vention here. The first time we cite to a provision of the Act, we include a preliminary parallel citation to the U.S. Code. All citations are to the CWA unless indicated otherwise. 2 Hazard-based regulation is also referred to in the record as water- quality-based and harm-based regulation. OUR CHILDREN’S EARTH v. EPA 14221 (1) EPA failed to review effluent guidelines based on the “best conventional pollutant technology” (“BCT”) and “best available technology” (“BAT”), as mandated by § 304(b), (m);

(2) EPA failed to review existing effluent limitations as required by § 301(b), (d);

(3) EPA failed to issue timely final effluent guidelines plans as required by § 304(m)(1); and

(4) EPA failed to identify new polluting sources as required by § 304(m)(1)(B).

In sum, OCE argues that the CWA…