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Citizens Can't Force EPA to Take Action, 9th Circuit Panel Rules

Citizens cannot force the Environmental Protection Agency to take enforcement action against polluters under the Clean Water Act, the Ninth U.S. Circuit Court of Appeals has ruled. "[T]he Clean Water Act leaves it to the discretion of the EPA Administrator whether to find violations and to take enforcement action, and … those discretionary decisions are not subject to judicial review," Judge William Canby wrote for the three-judge panel. The case involved the Nogales International Water Treatment Plant in Pio Rico, Arizona, about 10 miles north of the Mexican border. The City of Nogales, Arizona, and the U.S. Section of the Boundary Commission jointly operate the plant, which serves about 185,000 people on either side of the border. From January 1995 though January 2000, plant operators reported 128 violations of the facility's National Pollution Discharge Elimination System permit. The Sierra Club sued the EPA, the Boundary Commission and the City of Nogales. The Sierra Club reached an out of court settlement with the Commission and the city to upgrade the facilities, but the group pressed forward with its suit against the EPA. The group asked the court to order the EPA to take enforcement action against the sewer plant operators. Federal District Court Judge Raner Collins ruled for the EPA, holding that citizens cannot sue the agency to force it to take enforcement action. The Sierra Club appealed, pointing to the Clean Water Act's use of the word "shall" in regard to enforcement activities. But the Ninth Circuit upheld the lower court ruling. In this instance, "shall" simply authorizes the EPA to act. The word does not compel action, as Congress did not intend for enforcement provisions to be mandatory, the court ruled. "The language of authorization, for both the commencement of a civil action and the issuance of a compliance order, shows congressional intent to give the Administrator these options, not to require their use in all instances," Canby wrote. The Eighth Circuit reached a similar conclusion in Dubois v. Thomas, 820 F.2d, 943 (8th Cir. 1987), Canby noted. "[T]he purpose of the Clean Water Act is to restore and maintain national waters and waterways," Canby wrote. "As previously recognized by the Eighth Circuit, requiring the EPA to ‘expend its limited resources investigating multitudinous complaints, irrespective of the magnitude of their environmental significance' could lead to an inability to investigate and enforce those violations the Administrator believes to be the most serious." In a concurring opinion, Judge Ronald Gould said the court should not have even reached the issue of whether enforcement was discretionary. Although he called the EPA's inaction "troubling" in this case, Gould wrote, "No prior finding of violation was alleged here by the Sierra Club in its complaint, and the record does not disclose such a finding." Thus, there was no basis for an enforcement action, he wrote. The Case: Sierra Club v. Whitman, No. 00-16895, 01 C.D.O.S. 8576, 2001 DJDAR 10637. Filed October 2, 2001. The Lawyers: For the Sierra Club: Vera Kornylak, Arizona Center for Law in the Public Interest, (520) 529-1798. For Whitman: Ellen Durkee, Department of Justice Environment & Natural Resources Division, (202) 514-2000.
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