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Greene v. Costle

Citation: 14 ELR 20394
No. No. 80-2630 H, 577 F. Supp. 1225/20 ERC 2029/(W.D. Tenn., 10/31/1983) Motion to dismiss denied

The court holds that it has subject matter jurisdiction over a citizen suit to compel the Environmental Protection Agency (EPA) to enforce the Federal Water Pollution Control Act (FWPCA) and that the suit states a valid cause of action.First, the court holds that it has jurisdiction to hear plaintiffs' claim under § 505 of the FWPCA because plaintiffs allege that the EPA failed to issue a compliance order for a § 301 violation as required by § 309. The court rejects defendants' contention that the statutory enforcement duty imposed on EPA by § 309 is discretionary. It further holds that while EPA has a choice under § 309 of either issuing a compliance order or filing a civil suit, the statutory purpose, a reading of the statute as a whole, and the legislative history support a determination that enforcement action is mandatory. The court adds that enforcement by lawsuit is arguably discretionary. The court also holds that additional bases for jurisdiction are the mandamus statute, 28 U.S.C. § 1361, and the federal question statute, 28 U.S.C. § 1331. It holds that the Declaratory Judgment Act is not a grant of federal court jurisdiction, but because the court has jurisdiction over plaintiffs' claim, the Act makes the declaratory judgment remedy available. It rules that the Administrative Procedure Act serves as a basis for jurisdiction over agency actions that are arbitrary and capricious, but it declines to make such a determination now. Finally, the court holds that plaintiffs have stated a claim upon which relief can be granted.

Counsel for Plaintiffs
Frank E. Deale
Center for Constitutional Rights
853 Broadway, New York NY 10003
(212) 674-3303

Counsel for Defendants
Carl Strass
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2682