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National Wildlife Fed'n v. Browner

ELR Citation: 31 ELR 20442
Nos. 00-1258, 237 F.3d 670/(D.C. Cir., 01/30/2001)

The court dismissed industry groups' petition to dismiss an environmental group's challenge to the U.S. Environmental Protection Agency's (EPA's) Clean Water Act (CWA) discharge regulations for pulp and paper mills. The industry groups also challenged EPA's regulations, but they argued that the court lacks subject matter jurisdiction to review the environmental group's claims. CWA §509(b)(1) allows for review of CWA rules by an interested person in U.S. circuit courts in the judicial district where "such person resides or transacts business." Thus, the industry groups argue that the court lacks subject matter jurisdiction over the environmental group because only one petitioner from the environmental group resides or does business in the Ninth Circuit—where the case originated before transfer—and that petitioner's claim is now moot. The court first holds that CWA §509(b)(1)'s provision at issue determined venue, not jurisdiction. Unlike similar provisions in other environmental statutes, CWA §509(b)(1) does not contain exclusive language stating that the environmental group's petition for review may be filed and heard only by a specified circuit. Instead, CWA §509(b)(1) allows for review of any enumerated claim in whichever circuit an interested person resides or transacts business. Thus, its purpose is to divide cases among the circuits. Because objections to venue may be waived and since the industry groups concede that proper venue is no longer at issue, the motion to dismiss the environmental group's claim is dismissed.

Counsel for Petitioners
Neil S. Kagan
National Wildlife Federation
1400 16th St. NW, Ste. 501, Washington DC 20036
(202) 797-6800

Counsel for Respondents
Jon M. Lipshultz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Williams and Silberman, JJ.