January 30, 2023

Volume XIII, Number 30


January 27, 2023

Subscribe to Latest Legal News and Analysis

Another NGO Asks a Federal Appeals Court to Manage EPA. What's Next?

Inside EPA reports that a Pacific Northwest NGO has asked the Ninth Circuit Court of Appeals to order the United States Environmental Protection Agency to act on the NGO's demand that EPA revoke its delegation of Clean Water Act NPDES authority to the State of Washington.  The NGO also asks the Appeals Court to retain jurisdiction for the purpose of "ensur[ing] EPA's response [to the NGO's demand] is complete."

It isn't out of the question that the Appeals Court will grant the NGO's petition.  If that happens, it will be only the most recent example of federal Appeals Courts taking the implementation of the Clean Water Act into their own hands.

On the other side of this summer I wrote about another Ninth Circuit petition for review of EPA's Clean Water Act NPDES Multi-Sector General Permit because a different NGO concluded EPA should have done more in that permit to prevent the possibility of plastic pollution and to protect endangered species.  I also wrote about a First Circuit decision that same day allowing another NGO to prosecute its citizen suit for alleged violations of an individual NPDES permit covering a facility in Massachusetts while EPA was still working on that Facility's NPDES permit.

There can be no serious argument over whether EPA has had sufficient resources to fulfill the Clean Water Act responsibilities given it by the Congress and President of the United States, nor about whether EPA's ability to fulfill those responsibilities has been further impaired by litigation and other external forces.

In the Washington case filed yesterday, the NGO has been waiting for a response to its demand of EPA since 2017. 

But do we really want Appeals Courts to fill EPA's shoes?  And once that happens, what's next?

"Because a writ of mandamus is necessary to remedy EPA’s egregious delay, preserve this Court’s jurisdiction, provide NWEA with access to judicial relief, and protect Puget Sound and all its inhabitants, NWEA respectfully requests that this Court issue a writ of mandamus compelling EPA to respond to NWEA’s Petition within 90 days and retain jurisdiction to ensure EPA’s response is complete,” the filing says.

-Environmentalists Eye Rare Order To Force EPA Action On Puget Sound

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 236

About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.