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Our Children's Earth Found. v. EPA

ELR Citation: 37 ELR 20269
Nos. No. 05-16214, (9th Cir., 10/29/2007)

The Ninth Circuit reversed and remanded for further proceedings a lower court's dismissal of citizen suit claims brought by an environmental advocate group alleging the U.S. Environmental Protection Agency (EPA) failed to fulfill its mandate to timely review effluent guidelines and limitations in accord with the Clean Water Act (CWA) technology-based standards. Because the claims are brought under CWA §505(a), jurisdiction is limited to controversies involving EPA's non-discretionary CWA duties. EPA's decision whether to revise the effluent guidelines falls within EPA's discretion, but, using the Chevron analysis, EPA does not have discretion in its review of the guidelines to ignore technology-based criteria in favor of a hazard-based review. The case is remanded because the lower court wrongly found that all of EPA's review requirements are discretionary. The lower court's decisions denying appellants' other CWA claims regarding timing of EPA's plan publication for annual review, revision of its CWA guidelines, and identification of new categories of toxic and nonconventional pollutants are affirmed.