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Riverkeeper, Inc. v. United States EPA

ELR Citation: 37 ELR 20267
Nos. Nos. 06-Civ-12987(PKC),, (S.D.N.Y., 09/24/2007, 09/28/2007)

A district court ruled that it had subject matter jurisdiction over the U.S. Environmental Protection Agency’s (EPA) alleged failure to promulgate standards governing water intake structures at certain existing offshore oil and gas extraction facilities, and certified its ruling to the courts of appeals for consideration. Although Clean Water Act (CWA) §509(b)(1)(E) vests exclusive jurisdiction in the courts of appeals to review cases involving “approving or promulgating any effluent limitation or other limitations,” EPA’s failure to promulgate a standard does not fall within this section’s purview. Instead, the district court has subject matter jurisdiction under CWA §505(a) and under the Administrative Procedure Act. But there is strong reason to certify this question for immediate appeal because (1) there are substantial grounds for differing opinions, (2) this is a pure question of law that will control the case outcome, and (3) there is a pending case on the same matter in the courts of appeals.