Environmental organizations Natural Resources Defense Council and Waterkeeper Alliance (collectively Plaintiffs) brought suit against the U.S. Environmental Protection Agency (EPA), alleging EPA violated the Clean Water Act (CWA)[1] and the Administrative Procedure Act (APA)[2] by failing to promulgate regulations for stormwater pollution discharges caused by the construction and development industry. The U.S. District Court for the Central District of California granted Plaintiffs' motion for partial summary judgment and issued a permanent injunction compelling EPA to issue effluent limitation guidelines (ELGs) and new source performance standards (NSPSs) for the construction industry. EPA appealed, challenging the district court's jurisdiction, Plaintiffs' standing to sue, and the grant of partial summary judgment in favor of Plaintiffs. The Ninth Circuit affirmed, holding the district court properly exercised jurisdiction over Plaintiffs' claim; Plaintiffs had standing to sue; and EPA had a mandatory duty under the CWA to promulgate ELGs and NSPSs for the construction industry.

The CWA prohibits the discharge of any pollutant from a point source into the navigable waters of the United States without a National Pollutant Discharge Elimination System (NPDES) permit.[3] NPDES permits establish limits on the type and quantity of pollutants that can be released into waters; these limits are determined according to more specific guidelines-ELGs and NSPSs-which are promulgated by EPA. Under section 304(m) of the CWA, every two years EPA must publish a plan in the Federal Register identifying categories of sources that discharge toxic or nonconventional pollutants and establish a schedule for promulgating ELGs and NSPSs for the categories identified.[4] In 2000, EPA's plan identified construction activities as a point source category, thus requiring the promulgation of guidelines under section 304(m).

Two years later, EPA issued a proposed rule to address stormwater discharge from construction sites which identified three options under consideration by the agency.[5] In 2004, EPA withdrew its proposed ELGs and NSPSs for the construction and development industry and decided instead to establish no new requirements to control stormwater runoff from construction sites. EPA explained its decision by stating that existing NPDES regulations adequately addressed stormwater discharge for most construction sites and that the cost was "simply too high" relative to the expected benefits to be achieved by the proposed ELGs.[6] EPA removed the construction industry from subsequent section 304(m) plans in 2004 and 2006; the latter plan stated EPA "mistakenly" identified the construction industry in its 2002 plan and corrected its own mistake by removing the industry from its 2004 plan.[7]

Plaintiffs subsequently brought suit against EPA to challenge its decision not to issue ELGs and NSPSs for the construction industry after it had listed construction activities as a point source category under section 304(m).[8] Defendants moved to dismiss, claiming the district court lacked jurisdiction over Plaintiffs' claim and that Plaintiffs lacked standing. The states of Connecticut and New York (state-intervenors) intervened on behalf of Plaintiffs, and the National Association of Home Builders and the Associated General Contractors of America (industry-intervenors) did the same on behalf of Defendants. The district court denied defendants' motion to dismiss and granted Plaintiffs' motion for summary judgment. The district court also issued a permanent injunction requiring EPA to establish ELGs and NSPSs for the construction industry by December 1, 2009. Defendants appealed.

Reviewing the district court's assertion of jurisdiction and interpretation of the CWA de novo, the Ninth Circuit first considered whether the district court properly exercised its original jurisdiction.[9] Section 505(a)(2) of the CWA grants the district court original and exclusive jurisdiction over suits "against the Administrator where there is alleged a failure . . . to perform any act or duty under this chapter which is not discretionary."[10] Section 509(b)(1), in contrast, grants the courts of appeal jurisdiction to "[r]eview . . . the Administrator's action . . . in approving or promulgating any effluent or other limitation."[11] EPA argued the latter provision applied and that the court of appeals had exclusive original jurisdiction. The Ninth Circuit disagreed, holding that district courts have exclusive jurisdiction "where a plaintiff alleges that the EPA has failed to perform a non-discretionary duty under the CWA and the plaintiff does not challenge the substance of any existing regulations."[12] Because Plaintiffs did not challenge the substance of any existing regulations, but rather, EPA's failure to issue such regulations, section 509(b)(1) was inapplicable, and the district court had original jurisdiction pursuant to section 505(a)(2).

In support of its holding, the court relied on recent Ninth Circuit precedent in the case of Our Children's Earth Foundation v. EPA (OCEF).[13] The OCEF plaintiffs similarly challenged EPA's failure to timely review effluent guidelines and limitations under the CWA.[14] The court affirmed the district court's jurisdiction under section 505(a)(2) and stated section 509(b)(1) "extends only to a substantive review of . . . guidelines actually promulgated, and not to the threshold question of whether the statutory requirements of the CWA have been met."[15] In further support of its analysis, the Ninth Circuit cited a Third Circuit case in which plaintiffs sought to compel EPA to perform its nondiscretionary duty to promulgate NSPSs for the coal mining industry.[16] The Third Circuit concluded that jurisdiction was proper under section 505(a)(2) because section 509 focuses on the substance or effect of existing regulations, not on a petitioner's request to compel EPA to promulgate new or different limitations.[17] Based on the foregoing, the Ninth Circuit held the district court properly exercised it jurisdiction over Plaintiffs' claim that EPA violated its statutory mandate to promulgate ELGs and NSPSs for the construction industry.

On appeal, industry-intervenors further challenged whether Plaintiff organizations had standing to sue on behalf of their members.[18] Under Article III's standing requirements, a plaintiff must show it has suffered an injury in fact, which is concrete and particularized and actual or imminent.[19] The party must further demonstrate the injury is fairly traceable to the conduct of the defendant and is likely to be redressed by a favorable decision.[20]

Applying the three-prong standing analysis, the Ninth Circuit concluded that members of the environmental groups had demonstrated they suffered an injury in fact because they submitted declarations attesting they had used particular waterways for aesthetic and recreational purposes and that their use and enjoyment had been diminished by stormwater discharges from construction sites flowing directly into these waterways.

Next, addressing the second and third prongs of traceability and redressability, the Ninth Circuit analyzed whether Plaintiffs' injuries were traceable to EPA's failure to promulgate ELGs and NSPS and would be redressed by EPA's promulgation of these regulations. The court recognized that redressability could not be precisely determined absent knowledge of the actual substance of EPA's regulations. However, the court concluded Plaintiffs made a sufficient showing that the type of stormwater discharge causing injury is that which the ELGs and NSPSs aim to address, and that such regulations are likely to reduce the risk of injury-causing pollution. In support of its analysis, the court first relied on a number declarations submitted by Plaintiffs' members, which supported that stormwater discharges from construction sites into bodies of water that they use and enjoy were polluting and diminishing the water quality. Second, the Ninth Circuit explained that by requiring effluent limitations for identified point sources, Congress expressed its view that ELGs and NSPSs reduce the risk of the type of pollution causing members' injury. According to the court, "Where Congress has expressed the need for specific regulations relating to the environment, that expression supports an inference that there is a causal connection between the lack of those regulations and adverse environmental effects."[21] Based on these considerations, the court held that the environmental-group Plaintiffs had standing to bring suit.

Having concluded that jurisdiction was proper and Plaintiffs had standing to sue, the Ninth Circuit last reviewed de novo the district court's grant of partial summary judgment[22] and accompanying interpretation of the CWA.[23] In analyzing EPA's statutory duty to promulgate ELGs and NSPSs, the court reviewed EPA's construction of the CWA under Chevron U.S.A., Inc. v. Natural Resources Defense Council (Chevron)[24] and held that once EPA listed the construction industry as a point source category, the agency was required to promulgate ELGs and NSPSs. Applying step one of Chevron, the court concluded that the language of the CWA clearly establishes that EPA must promulgate effluent limitations and standards for all point source categories it lists in section 304(m) plans. Further, by requiring EPA to "establish a schedule" under which the guidelines shall be promulgated "no later than . . . 3 years after the publication of the plan," under section 304(m), Congress unequivocally expressed its intent that the promulgation of ELGs and NSPSs was mandatory.[25]

After holding that EPA had a nondiscretionary duty to promulgate ELGs and NSPSs, the Ninth Circuit considered whether EPA properly avoided this duty by removing the construction industry from its 2004 and 2006 section 304(m) plans. In addition to finding nothing in the CWA granting EPA authority to remove a point source category from its published plans, the court further found EPA's position-that it was allowed under the CWA to unilaterally de-list a point source category-to be an impermissible construction of the statute. The court reasoned that the congressional mandate to promulgate guidelines no later than three years after publication would be rendered meaningless if EPA could avoid the deadline by unilaterally de-listing any category of point sources. Thus, the court concluded, the three-year period provided for in section 304(m)(1)(c) is designed to give time to determine the substance of the effluent limitations and standards, not for consideration of whether to develop ELGs for a category of point source; the latter decision is made when EPA lists the point source in the section 304(m) plan.

Based on the foregoing, the Ninth Circuit affirmed the district court's grant of partial summary judgment in favor of Plaintiffs and its injunction requiring EPA to issue ELGs and NSPSs for the construction industry no later than December 1, 2009.