Northwest Environmental Advocates, a Non-Profit Oregon Corporation, and Nina Bell v. City of Portland

74 F.3d 945 42 ERC 1286 NORTHWEST ENVIRONMENTAL ADVOCATES, A Non-Profit Oregon Corporation, and Nina Bell, Plaintiffs-Appellants, v. CITY OF PORTLAND, Defendant-Appellee. No. 92-35044. United States Court of Appeals, Ninth Circuit. Jan. 24, 1996. Before: PREGERSON, KLEINFELD, Circuit Judges, and INGRAM, District Judge. * ORDER Judges Pregerson and Ingram voted to deny appellee's amended petition for rehearing. Judge Pregerson voted to reject the suggestion for rehearing en banc and Judge Ingram so recommended. Judge Kleinfeld voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc. The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehearing the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35. The amended petition for rehearing is denied and the suggestion for rehearing en banc is rejected. O'SCANNLAIN, Circuit Judge, joined by HALL, T.G. NELSON, and KLEINFELD, Circuit Judges, dissenting from order rejecting suggestion for rehearing en banc: By failing to rehear this case en…

By failing to rehear this case en banc, we have significantly reshaped federal environmental law, without consent of Congress, to the curious end that any citizen will now be permitted to bring a lawsuit at government expense for the enforcement of state water quality standards that have not been translated into effluent limitations in federal permits. Such unwarranted expansion of citizen standing conflicts with the plain language of the Clean Water Act and with prior decisions of this circuit and others.

It should go without saying that the environment faces real and growing dangers that warrant protective measures and challenge us to develop innovative solutions. Nevertheless, by allowing citizens to enforce standards that Congress specifically allocated to government agencies to monitor, the court has upset the delicate balance envisioned by Congress in its promulgation of the current enforcement regime for environmental law. The result promises to invite excessive, costly, and counterproductive citizen suits, funded by the taxpayers, for the enforcement of standards that are imprecise and astronomically costly to the municipalities affected.

The Clean Water Act allows…

*946 ORDER

Judges Pregerson and Ingram voted to deny appellee’s amended petition for rehearing. Judge Pregerson voted to reject the suggestion for rehearing en banc and Judge Ingram so recommended.

Judge Kleinfeld voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehearing the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.

The amended petition for rehearing is denied and the suggestion for rehearing en banc is rejected.