Wheeler

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EARTH ISLAND INSTITUTE, et al., Case No. 20-cv-00670-WHO

8 Plaintiffs,

ORDER RE MOTION TO DISMISS

v. 9 Re: Dkt. No. 16 10 ANDREW R. WHEELER, et al., Defendants. 11

12 Defendants Andrew Wheeler and the U.S. Environmental Protection Agency (collectively, 13 “EPA”) bring this motion to dismiss plaintiffs’ (collectively, “Earth Island”) cause of action for 14 violation of the Clean Water Act (“CWA”). At issue is whether, as a matter of law, the CWA 15 imposes a nondiscretionary duty on the EPA to update or amend the National Contingency Plan 16 (“NCP”), a plan for responding to oil and hazardous substance contamination that is mandated by 17 the CWA; if so, Earth Island is allowed to bring a cause of action pursuant to the CWA’s citizen- 18 suit provision. I find that the EPA has such a duty and its motion is DENIED. In addition, I 19 DENY the American Petroleum Institute’s motion to intervene because this lawsuit addresses the 20 agency’s procedure, not its substantive decision. 21 …