Our Children's Earth Foundation v. U.S. E.P.A.

• Decision Date: 23 May 2008
• Docket Number: No. 05-16214.,05-16214.
• Citation: 527 F.3d 842
• Parties: OUR CHILDREN'S EARTH FOUNDATION, and Ecological Rights Foundation; Ecological Rights Foundation, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Michael O. Leavitt, Administrator of EPA; Steven L. Johnson, Defendants-Appellees, Association of Metropolitan Sewerage Agencies; Effluent Guidelines Industry Coalition; The Utility Water Act Group (UWAG); National Association of Clean Water Agencies (NACWA), Defendant-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

527 F.3d 842

OUR CHILDREN'S EARTH FOUNDATION, and Ecological Rights Foundation; Ecological Rights Foundation, Plaintiffs-Appellants, v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Michael O. Leavitt, Administrator of EPA; Steven L. Johnson, Defendants-AppelleesAssociation of Metropolitan Sewerage Agencies; Effluent Guidelines Industry Coalition; The Utility Water Act Group (UWAG); National Association of Clean Water Agencies (NACWA), Defendant-Intervenors-Appellees.

No. 05-16214.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 13, 2007.

Filed May 23, 2008.

Christopher Sproul, Environmental Advocates, San Francisco, CA, for the plaintiffs-appellants.

Allen M. Brabender(argued), Sue Ellen Wooldridge, Assistant Attorney General, John A. Bryson and Eileen T. McDonough, Attorneys, United States Dept. of Justice, Environment and Natural Resources Div., Washington, DC; Carol Ann Siciliano and Pooja Seth Parikh, Office of General Counsel, United States Environmental Protection Agency, Washington, DC, for the defendants-appellees.

Fredric P. Andes, Carolyn S. Hesse, and David T. Ballard, Barnes & Thornburg, L.L.P., Chicago, IL, for intervenor-appellee Effluent Guidelines Industry Coalition.

David W. Burchmore and Jill A. Grinham, Squire, Sanders, & Dempsey L.L.P., Cleveland, OH, for intervenors-appelleesAssociation of Metropolitan Sewerage Agencies, now known as National Association of Clean Water Agencies.

Melanie Shepherdson, National Resources Defense Counsel, Washington, DC, amicus in support of the appellants.

Jeffrey Odefey, Waterkeeper Alliance, Tarrytown, NY, amicus in support of the appellants.

Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding.D.C. No. CV-04-02132-PJH.

Before: J. CLIFFORD WALLACE, D.W. NELSON, and M. MARGARET McKEOWN, Circuit Judges.

ORDER AND OPINIONORDER

The petition for panel rehearing is granted.The petition for rehearing en banc is denied as moot.

The opinion filed October 29, 2007, slip op. 14215, and appearing at 506 F.3d 781, is withdrawn.It may not be cited as precedent by or to this court or any district court of the Ninth Circuit.It is replaced by the concurrently filed opinion.

OPINION

McKEOWN, Circuit Judge:

In 1972Congress passed the Clean Water Act("CWA" or "the Act")"to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."SeeFederal Water Pollution Control Act Amendments of 1972 (Clean Water Act of 1972), Pub.L. No. 92-500, 86 Stat. 816(1972)(codified at 33 U.S.C. § 1251(a)).Central to that legislation and later amendments is the notion that pollution discharges would be controlled through technology-based effluent limitations.

Environmental advocates, Our Children's Earth Foundation and Ecological Rights Foundation (collectively "OCE"), filed this citizen suit under the Clean Water Act,33 U.S.C. § 1251 et seq., alleging that the Environmental Protection Agency("EPA" or "the Agency") has failed to fulfill its mandate to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards.Specifically, OCE claims that EPA 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.SeeCWA § 301(b), 33 U.S.C. § 1311(b);CWA § 301(d), 33 U.S.C. § 1311(d);CWA § 304(b), 33 U.S.C. § 1314(b);CWA § 304(m), 33 U.S.C. § 1314(m).¹

A technology-based approach to water quality focuses on the achievable level of pollutant reduction given current technology, whereas a hazard-based² approach seeks to identify known hazards or contaminants in the water and to reduce the prevalence of those hazards.See, e.g.,S.Rep. No. 92-414, at 8(1971), 1972 U.S.C.C.A.N. 3668, 3674-78.Although these approaches are not mutually exclusive, OCE claims that EPA jettisoned a technology-based approach altogether, thus abdicating its statutory duties.

The district court granted judgment in favor of EPA, holding that the challenged acts or omissions were discretionary.We agree that the decisions whether to revise the effluent guidelines and whether to incorporate technology-based criteria in its periodic review of the guidelines fall within EPA's discretion.Consequently, we affirm.

BACKGROUND

OCE's amended complaint contains four claims alleging non-compliance with what OCE characterizes as EPA's mandatory duties under the Act:

(1) EPA failed to review effluent guidelines based on the "best conventional pollutant technology"("BCT") and "best available technology"("BAT"), as mandated by §§ 304(b), (m);

(2) EPA failed to review existing effluent limitations as required by §§ 301(b), (d);

(3) EPA failed to issue timely final effluent guidelines plans as required by § 304(m)(1); and

(4) EPA failed to identify new polluting sources as required by § 304(m)(1)(B).

In sum, OCE argues that the CWA requires, as a non-discretionary matter, that the Agency 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.EPA and Intervenors Effluent Guidelines Industry Coalition and Association of Metropolitan Sewerage Agencies(now known as the National Association of Clean Water Agencies)(together, "Intervenors") counter that EPA's non-discretionary duties do not extend to a particular manner of performing reviews and revisions.

We first address the argument by EPA and the Intervenors that this suit was not properly brought under the citizen suit provision of the Act, § 505(a),33 U.S.C. § 1365(a)(2), but rather should have been brought under § 509(b)(1),33 U.S.C. § 1369(b)(1).Then, we consider whether the district court has jurisdiction over each of OCE's four claims under § 505(a)(2).Because § 505(a)(2) jurisdiction is predicated on citizen enforcement of a non-discretionary duty, our analysis focuses on whether the claims relate to discretionary or non-discretionary duties under the Act.

ANALYSIS

I.JURISDICTION TO REVIEW AGENCY ACTION³

The CWA contains two separate jurisdictional sections: § 505(a), known as the citizen suit provision, and § 509(b)(1), which relates primarily to challenges to promulgation of certain standards and determinations.OCE brought suit under § 505(a)(2), which permits "any citizen[to] commence a civil action on his own behalf ... against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator."⁴CWA § 505(a)(2).

Alternatively, § 509(b)(1) permits suits against the EPA Administrator for review of action

(A) in promulgating any standard of performance under section 1316 of this title, (B) in making any determination pursuant to section 1316(b)(1)(C) of this title, (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title, (D) in making any determination as to a State permit program submitted under section 1342(b) of this title, (E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, (F) in issuing or denying any permit under section 1342 of this title, and (G) in promulgating any individual control strategy under section 1314(l). ...

Suits brought pursuant to § 509(b)(1) must be filed directly

in the Circuit Court of Appeals of the United States for the Federal judicial district in which [petitioner] resides or transacts business. ...Any such application shall be made within 120 days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such 120th day.

CWA § 509(b)(1).Section 509(b)(1) actions, as opposed to suits brought under § 505(a)(2), challenge the exercise of the Administrator's discretion in promulgating standards and issuing determinations.

So long as EPA's challenged acts and omissions relate to non-discretionary duties under the Act, OCE's action was properly brought in the district court under § 505(a)(2).To the extent OCE challenges actions within the discretion of the Administrator, the district court properly refused to exercise jurisdiction under § 505(a)(2).Nonetheless, a jurisdictional defect under § 505(a)(2) does not mean that jurisdiction is proper under § 509(b)(1).

"[T]his Court has counseled against expansive application of section[509(b)]."League of Wilderness Defenders v. Forsgren,309 F.3d 1181, 1190 n. 8(9th Cir.2002).Section 509(b)(1) covers only challenges to "promulgation" or "approval" or "determinations" on permits, not failure to comply with allegedly mandated procedures, which is the thrust of OCE's suit.

Additionally, § 509(b)(1) lists a number of sections for which review obtains in the court of appeals: §§ 301,1312,304(l),1316,1317,1342, and1345.Neither §§ 304(b) or 304(m) is referenced in § 509(b)(1).Because the challenge here does not stem from the promulgation or approval of an effluent limitation or permit, we need not decide whether § 509(b) encompasses a challenge under § 304.CompareE.I. du Pont de Nemours & Co. v. Train,430 U.S. 112, 136-37, 97 S.Ct. 965, 51 L.Ed.2d 204(1977)(suggesting that the EPA could collapse the limitations to be promulgated under §§ 301and304 into a single review), with Longview Fibre Co. v. Rasmussen,980 F.2d 1307, 1310(9th Cir.1992)(holding that the sections listed in § 509 are sufficiently specific that unlisted sections should not be interpreted to be covered by § 509).

We thus agree with the district court that the circuit court's exclusive jurisdiction "extends only to a substantive review of the appropriateness of...