Summary of a Recent
Judicial Development in
Clean Water Act

CWA Citizen Suit Must Point to a Nondiscretionary Duty
to Compel Agency Action

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Our Children's Earth Foundation v. U.S. Environmental Protection Agency, 527 F.3d 842 (9th Cir. 2008), the United States Ninth Circuit Court of Appeals affirmed the decision of the district court which granted the United States Environmental Protection Agency's (EPA) motion for summary judgment. Environmental groups filed a citizen suit pursuant to the Clean Water Act (CWA), claiming that the EPA failed to follow mandatory technology-based review of effluent guidelines and failed to follow protocol for future reviews or identify new polluting sources. The court held that the EPA was not required to use an approach-based on technology. Additionally, the court dismissed the plaintiffs' challenge of the sufficiency of the EPA's identification of new pollution sources because it could not be asserted under the CWA's citizen suit provision.

Background

One of Congress's central purposes in passing the CWA was to control pollution discharges through technology-based effluent limitations. Id. at 844. Claiming that the EPA had "failed to fulfill its mandate to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards," environmental groups filed suit under the CWA's citizen suit provision, 33 U.S.C. § 1365(a)(2). Id. The district court granted the EPA's motion for summary judgment, "holding that the challenged acts or omissions were discretionary." Id. at 845. The environmental groups appealed. Id.

Arguments

The environmental groups claimed that the EPA had "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." Id. at 844-45. Essentially, the plaintiffs argued "that the CWA requires, as a non-discretionary matter, that the [EPA] take a particular approach to water safety regulation: technology-based review, published in a sufficiently timely fashion to afford a meaningful opportunity for notice and comment." Id. at 845.

The defendants argued "that EPA's non-discretionary duties do not extend to a particular manner of performing reviews and revisions." Id. Because citizen suit jurisdiction, pursuant to 33 U.S.C. § 1365(a)(2), is "predicated on citizen enforcement of a non-discretionary duty," the defendants argued that the court lacked jurisdiction over the plaintiffs' claims. Id.

Analysis and Holdings

The court first addressed whether it had jurisdiction to determine whether the EPA had discharged its non-discretionary duties under the CWA. Id. at 846-47. After reviewing relevant case law and the text of the CWA, the court held that its jurisdiction "extend[ed] only to a substantive review of the appropriateness of the guidelines actually promulgated, and not to the threshold question of whether the statutory requirements of the CWA [had] been met." Id. at 847. Because "such promulgated guidelines or limitations" were not at issue in this lawsuit, the court held that the district court properly exercised "jurisdiction under § 505(a)(2) to determine whether EPA discharged its non-discretionary duties under the CWA." Id.

The court then addressed whether the plaintiffs were challenging non-discretionary actions. Id. To make this determination, the court looked to the CWA itself. Id. After extensively reviewing CWA § 301 and § 304, the court held, "The plain language of these provisions reflects that the CWA repeatedly mandates a technology-based approach as a non-discretionary matter in the promulgation of the regulations." Id. at 849-50. However, the court found that "[n]othing in the CWA specifically obligate[d] the EPA to review the effluent guidelines and limitations using a technology-based approach." Id. at 851. Because the statute failed to impose a mandatory duty on the EPA, the court did not have jurisdiction under the CWA citizen suit provision. Id.

The case was decided on May 23, 2008.