Tuesday, May 27, 2008

Our Children's Earth Foundation v. U.S. EPA

May 23: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-16214. Environmental advocates, Our Children’s Earth Foundation and Ecological Rights Foundation (collectively OCE), filed a citizen suit under the Clean Water Act, alleging that U.S. EPA 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.

The Appeals Court explained that, "A technology-based approach to water quality focuses on the achievable level of pollutant reduction given current technology, whereas a hazard-based approach seeks to identify known hazards or contaminants in the water and to reduce the prevalence of those hazards. 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. The Appeals Court said, "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."

On a related Motion to Transfer issue, the Appeals Court said, "The district court properly dismissed OCE’s claims regarding the manner and timing of review of the guidelines, the scheduling of plan publication and identification of new polluting sources, and did not abuse its discretion in refusing to transfer OCE’s claims to this court."

Access the complete opinion (
click here).

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