Sierra Club v. Whitman

• Citation: 268 F.3d 898
• Decision Date: 02 October 2001
• Docket Number: No. 00-16895,DEFENDANTS-APPELLEES,PLAINTIFFS-APPELLANTS,00-16895
• Parties: (9th Cir. 2001) SIERRA CLUB, GRAND CANYON CHAPTER; TERESA LEAL, AN INDIVIDUAL,, v. CHRISTIE TODD WHITMAN, <A HREF="#fr1-*" name="fn1-*">* IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; FELICIA MARCUS, IN HER OFFICIAL CAPACITY AS REGIONAL ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX; U.S. ENVIRONMENTAL PROTECTION AGENCY; THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX; JOHN BERNAL, IN HIS OFFICIAL CAPACITY AS COMMISSIONER, U.S. SECTION OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION; THE U.S. SECTION OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION; CESAR RIOS, IN HIS OFFICIAL CAPACITY AS MAYOR, CITY OF NOGALES, ARIZONA; CITY OF NOGALES, ARIZONA,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 898

268 F.3d 898 (9th Cir. 2001)

SIERRA CLUB, GRAND CANYON CHAPTER; TERESA LEAL, AN INDIVIDUAL, PLAINTIFFS-APPELLANTS, v. CHRISTIE TODD WHITMAN,^* IN HER OFFICIAL CAPACITY AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; FELICIA MARCUS, IN HER OFFICIAL CAPACITY AS REGIONAL ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX; U.S. ENVIRONMENTAL PROTECTION AGENCY; THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX; JOHN BERNAL, IN HIS OFFICIAL CAPACITY AS COMMISSIONER, U.S. SECTION OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION; THE U.S. SECTION OF THE INTERNATIONAL BOUNDARY AND WATER COMMISSION; CESAR RIOS, IN HIS OFFICIAL CAPACITY AS MAYOR, CITY OF NOGALES, ARIZONA; CITY OF NOGALES, ARIZONA, DEFENDANTS-APPELLEES.

No. 00-16895

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 9, 2001

Filed October 2, 2001

Vera S. Kornylak, Arizona Center for Law in the Public interest, Tucson, Arizona, for the plaintiffs-appellants.

Ellen J. Durkee, Environment & Natural Resources Division, U.S. Department

of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CV-00-00184-RCC

Before: Canby, Hawkins and Gould, Circuit Judges.

Opinion by Judge Canby; Concurrence by Judge Gould.

The question presented by this appeal is whether the actions of the Administrator of the EPA in failing or refusing to find a violation of the Clean Water Act, and in failing or refusing to take enforcement action against the violators, are discretionary decisions of the Administrator that are not subject to judicial review under the Act. We conclude that both decisions are discretionary and therefore not subject to review.

Facts and Procedural Background

Sierra Club, Grand Canyon Chapter and Teresa Leal (collectively, "Sierra Club") brought this citizen suit against the Environmental Protection Agency (EPA) and its Administrator, EPA Region IX, and the Administrator of Region IX under the Clean Water Act of 1972, 33 U.S.C. § 1365(a)(2). The Sierra Club sued the EPA defendants for their failure to take any action against the City of Nogales or the International Boundary and Water Commission ("Boundary Commission") for their operation of a wastewater treatment plant that was apparently polluting the Santa Cruz River in violation of the Clean Water Act.

The Nogales International Wastewater Treatment Plant ("Treatment Plant") is located in Rio Rico, Arizona, about fourteen kilometers north of the United States-Mexico border. The Treatment Plant, in operation since 1972, serves some 25,000 people in Nogales, Arizona, and another 160,000 in Nogales, Sonora, Mexico.

In Arizona, the EPA administers the National Pollution Discharge Elimination System, a system of permits limiting to specified levels the discharge of various pollutants into waterways. See 33 U.S.C. § 1342. In 1991 the EPA granted a permit to the City of Nogales, Arizona and the United States Section of the Boundary Commission, the joint operators of the Treatment Plant.

The permit expired in 1996. Two years later, the EPA issued another permit for the facility, but withdrew the permit before it came into effect. Because the withdrawal of the new permit is under appeal, the plant continues to operate and to discharge pollutants under its expired permit.

According to the reports submitted to the EPA by Nogales and the Boundary Commission, the Treatment Plant violated its permit limitations 128 times between January 1995 and January 2000. The Clean Water Act provides that, whenever "the Administrator finds that any person is in violation" of permit conditions, the Administrator "shall issue an order requiring such person to comply . . . or . . . shall bring a civil action" against the violator. 33 U.S.C. § 1319(a)(3). The EPA Administrator, however, has not made a finding of a violation by the Treatment Plant, nor has she taken any of the enforcement actions authorized by the Act.

The Sierra Club brought this action against the EPA to compel it to initiate enforcement action. The suit was brought under 33 U.S.C. § 1365(a)(2), which authorizes any citizen to sue "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. " EPA contended that its decision not to enforce was discretionary, and therefore not within § 1365(a)(2) and its waiver of the sovereign immunity of the United States. The district court agreed with EPA and dismissed for lack of jurisdiction. ¹ The Sierra Club appeals.

We agree with the district court that the Clean Water Act leaves it to the discretion of the EPA Administrator whether to find violations and to take enforcement action, and that these discretionary decisions are not subject to judicial review under § 1365(a)(2). We therefore affirm the judgment of the district court.

Discussion

We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. Suits against the EPA, as against any agency of the United States, are barred by sovereign immunity, unless there has been a specific waiver of that immunity. Dept. of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). Similarly, suits against officials of the United States, including EPA Administrators, in their official capacity are barred if there has been no waiver. Hawaii v. Gordon, 373 U.S. 57, 58 (1963). Here, Congress has waived immunity in § 1365(a)(2) only for suits alleging a failure of the Administrator to perform a non-discretionary duty. Thus, if the Administrator acted within her discretion, the district court properly dismissed for lack of jurisdiction. We review that issue de novo. See Commodity Futures Trading Comm'n v. Frankwell Bullion Ltd., 99 F.3d 299, 305 (9th Cir. 1996) (scope of waiver of immunity is question of law reviewed de novo).

The Clean Water Act

The Clean Water Act was passed "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). More specifically, the Clean Water Act set the goal of eliminating "the discharge of pollutants into the navigable waters." 33 U.S.C. § 1251(a)(1).

One of the primary mechanisms for cleaning up the nation's waterways is a permit system, in which the EPA, or a designated state agency, issues permits for the discharge of pollutants. See 33 U.S.C. § 1342(a)-(b). In Arizona, the EPA administers the permit system. Permits contain conditions on the types and amounts of pollutants a permit holder can discharge and require permit holders to collect and report information about pollution discharges. 33 U.S.C. § 1342(a).

Beyond the permit system, the Clean Water Act provides several potential enforcement mechanisms, from abatement orders to criminal prosecution. 33 U.S.C. § 1319(a)-(d). The Sierra Club bases its current claim on § 1319(a)(3) of the Clean Water Act, which provides:

Whenever on the basis of any information available to him the Administrator finds that any person is in violation of [permit conditions], he shall issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action in accordance with subsection (b) of this section.

33 U.S.C. § 1319(a)(3).

Duty to make findings

The threshold condition for enforcement set forth in § 1319(a)(3) is that the Administrator "finds" a violation. The Sierra Club contends that, when interpreted as part of the Clean Water Act as a whole, section 1319(a)(3) creates a mandatory duty of the EPA Administrator to make findings when provided with information suggesting a violation. The argument fails for three reasons.

First and most important is the traditional presumption that an agency's refusal to investigate or enforce is within the agency's discretion, unless Congress has indicated otherwise. See Heckler v. Chaney, 470 U.S. 821, 838 (1985) (decision not to investigate or enforce committed to agency discretion and unreviewable under the Administrative Procedure Act (APA)); see also 5 U.S.C. § 701 (a)(2). The presumption of agency discretion recognized in Chaney has a long history and, contrary to the Sierra Club's assertion, is not limited to cases brought under the APA. When setting out the presumption in Chaney, the Supreme Court relied on four prior cases, none of which had been brought under the APA. See Chaney, 470 U.S. at 831 (citing United States v. Batchelder, 442 U.S. 114, 123-24 (1979) (prosecutorial discretion in enforcing criminal statutes); United States v. Nixon, 418 U.S. 683, 693 (1974) (executive branch discretion in deciding what to prosecute); Vaca v. Sipes, 386 U.S. 171, 182 (1967) (National Labor Relations Act); and Confiscation Cases, 7 Wall. 454, 457 (1869) (district attorney's discretion not to prosecute criminal cases and to dismiss civil suits)). After referring to these cases, the Court stated that "the Congress enacting the APA did not intend to alter that tradition." Chaney, 470 U.S. at 832.

This presumption of agency discretion can be overcome if Congress indicates that a decision or act is not discretionary. Id. at 838. Section 1319(a)(3) contains no language suggesting that the Administrator has a duty to make findings. See id. at 833-34; compare 33 U.S.C.§ 1319(a)(3) ("Whenever on the basis of an information available to him the Administrator finds that any person is in violation . . .") with 29 U.S.C. § 482 ("The Secretary shall investigate [complaints filed] . . ."). Instead, section 1319(a)(3) merely states what follows a finding by the Administrator. 33 U.S.C. § 1319(a)(3).

Moreover, the purpose of the Clean Water Act is to restore and maintain national waters and waterways. To achieve this end, the statute provides for a complex arrangement of monitoring through the permit system and enforcement mechanisms to ensure...