Friday, September 19, 2008

National Resources Defense Council v. U.S. EPA

Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-55183, 07-55261. Plaintiffs-Appellees, National Resources Defense Council (NRDC) and Waterkeeper Alliance Inc. (collectively, NRDC), sued Defendants-Appellants, U.S. EPA and its administrator (collectively, EPA), under the Clean Water Act (CWA) and the Administrative Procedure Act (APA), seeking to compel EPA to promulgate effluent limitation guidelines (ELGs) and new source performance standards (NSPSs) for storm water pollution discharges caused by the construction and development industry (construction industry).

The States of Connecticut and New York, and the New York State Department of Environmental Conservation (collectively, state-intervenors) intervened on behalf of NRDC; the National Association of Home Builders and Associated General Contractors of America (collectively, industry-intervenors) intervened on behalf of the EPA.

The district court exercised its jurisdiction under the Clean Water Act’s citizen-suit provision and denied Defendants’ motion to dismiss; granted Plaintiffs partial summary judgment on their claim that the CWA requires the EPA to issue ELGs and NSPSs for the construction industry; and issued a permanent injunction compelling EPA to do so. The Appeals Court affirmed the district court decision.

The Appeals Court ruled in part saying, "Despite our conclusion that the EPA had a nondiscretionary duty to promulgate ELGs and NSPSs in this case, we also must consider whether the EPA properly avoided this duty when it removed the construction industry from its plans published pursuant to § 304(m). Nothing in the CWA expressly grants the EPA the authority to remove a point-source category from a § 304(m) plan. . . " The Appeals Court said, first, ". . .once a category is identified under subsection B, the promulgation of guidelines 'shall be no later than . . . 3 years after the publication of the plan.' This timeline effectuates Congress’ stated desire to force the EPA to more rapidly promulgate ELGs and NSPSs. If the EPA had the authority to delist point-source categories at its whim, however, this deadline would be rendered meaningless as the EPA could delist any point-source category to avoid the deadline set forth in § 304(m)(1)(c)."

Secondly, the Appeals Court said, "Congress determined that by the time a point-source category is listed in a § 304(m) plan, the EPA must have already engaged in a review process to consider whether the category should be listed. It follows logically that the three-year delay provided for in § 304(m)(1)(c) is not to decide whether to list a point-source category, but to allow the EPA to consider what the substance of the ELGs and NSPSs should be."

NRDC issued a release on the decision and said it will help to ensure that construction site pollution won’t cause beach closings, waterborne disease, flooding, fish kills and contaminated drinking water supplies. Melanie Shepherdson, staff attorney at NRDC said, “This decision will go along way towards protecting America’s streams and rivers from the construction and development industry. The court made it very clear that EPA can’t just shirk its responsibilities to reign in pollution from this industry.”

Access the complete opinion (
click here). Access the release from NRDC (click here).

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