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Our Children's Earth Found. v. EPA

ELR Citation: 38 ELR 20125
Nos. No. 05-16214, (9th Cir., 05/23/2008) Replaces earlier decision

The Ninth Circuit affirmed a lower court decision dismissing a Clean Water Act (CWA) citizen suit brought by environmental advocates alleging that the U.S. Environmental Protection Agency (EPA) failed to fulfill its mandate to review effluent guidelines and limitations in a timely manner and in accord with technology-based standards. Decisions on whether to revise the effluent guidelines and whether to incorporate technology-based criteria in the Agency's periodic review of the guidelines fall within EPA's discretion. Nothing in the CWA specifically obligates EPA to review the effluent guidelines and limitations using a technology-based approach. Because the statute falls short of imposing a mandatory duty, the review criteria are not properly before the court under the CWA's citizen suit provision, §505(a)(2). The court also rejected the environmental advocates' 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.

[This decision replaces the court's prior decision in 37 ELR 20269.]