Wheeler

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 6 EARTH ISLAND INSTITUTE, et al., Case No. 20-cv-00670-WHO

Plaintiffs,

ORDER RE MOTION TO DISMISS

v. 9 Re: Dkt. No. 16 ANDREW R. WHEELER, et al., Defendants.

Defendants Andrew Wheeler and the U.S. Environmental Protection Agency (collectively, “EPA”) bring this motion to dismiss plaintiffs’ (collectively, “Earth Island”) cause of action for violation of the Clean Water Act (“CWA”). At issue is whether, as a matter of law, the CWA imposes a nondiscretionary duty on the EPA to update or amend the National Contingency Plan (“NCP”), a plan for responding to oil and hazardous substance contamination that is mandated by the CWA; if so, Earth Island is allowed to bring a cause of action pursuant to the CWA’s citizen- suit provision. I find that the EPA has such a duty and its motion is DENIED. In addition, I DENY the American Petroleum Institute’s motion to intervene because this lawsuit addresses the agency’s procedure, not its substantive decision. …