Whitman

Sierra Club v. Whitman

Good Law
268 F.3d 898·2001 WL 1154990
United States Court of Appeals for the Ninth CircuitOctober 2, 2001No. 00-16895California4,233 words

Opinion

Lead Opinion

Canby, J.

Opinion by Judge CANBY; Concurrence by Judge GOULD.

OPINION

The question presented by this appeal is whether the actions of the Administrator of the EPA in failing or refusing to find a violation of the Clean Water Act, and in failing or refusing to take enforcement action against the violators, are discretionary decisions of the Administrator that are not subject to judicial review under the Act. We conclude that both decisions are discretionary and therefore not subject to review.

Facts and Procedural Background

Sierra Club, Grand Canyon Chapter and Teresa Leal (collectively, “Sierra Club”) brought this citizen suit against the Environmental Protection Agency (EPA) and its Administrator, EPA Region IX, and the Administrator of Region IX under the Clean Water Act of 1972, 33 U.S.C. § 1365 (a)(2). The Sierra Club sued the EPA defendants for their failure to take any action against the City of Nogales or the International Boundary and Water Commission (“Boundary Commission”) for their operation of a wastewater treatment plant that was apparently polluting the Santa Cruz River in violation of the Clean Water Act.

The Nogales International Wastewater Treatment Plant (“Treatment…

Concurring Opinion

Gould, J.

concurring:

I concur in the judgment of the court and would affirm the district court's dismissal of the Sierra Club’s claim against the Administrator alleging failure to take nondiscretionary actions under the CWA.

Section 1319(a)(3) provides that “[w]hen-ever on the basis of any information available to him the Administrator finds” a violation of certain sections of the CWA, including § 1311 or a permit condition or limitation contained in a permit issued under § 1342, the Administrator “shall issue an order requiring such person to comply” with the statute or “shall bring a civil action” for an appropriate remedy.

The Sierra Club alleges that, pursuant to the requirements of 33 U.S.C. § 1318 , the Nogales Treatment Plant submitted monthly discharge monitoring reports to the Administrator disclosing discharges of pollutants into the Santa Cruz River from the Treatment Plant consistently in excess of levels allowed by the permit issued to Nogales and the IBWC. The Sierra Club argues that these reports, the submission of which is not genuinely disputed, require the Administrator to find a violation of § 1342 and to proceed to enforce compliance with the CWA.

There was no doubt…

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