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U.S. District Court Holds EPA Has an Ongoing Nondiscretionary Duty under the Clean Water Act to Update the National Contingency Plan

U.S. District Court Holds EPA Has an Ongoing Nondiscretionary Duty under the Clean Water Act to Update the National Contingency Plan
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By Rebecca Andrews and Patrick Skahan

On June 2, 2020, the U.S. District Court for the Northern District of California denied defendants Andrew Wheeler and the U.S. Environmental Protection Agency’s (collectively: EPA) motion to dismiss plaintiffs’ cause of action for violation of the federal Clean Water Act (CWA). On an issue of first impression, the court considered whether the CWA imposes a nondiscretionary duty on EPA to update or amend the National Contingency Plan (NCP), a plan for responding to oil and hazardous substance contamination that was last updated over 25 years ago. District Court Judge William H. Orrick determined EPA’s duty to update is nondiscretionary, such that the environmental plaintiffs could bring a cause of action pursuant to the CWA’s citizen-suit provision. The court also denied the American Petroleum Institute’s motion to intervene, ruling that the lawsuit concerned EPA’s procedure, but not any substantive decision. [Earth Island Institute, et al., v. Andrew R. Wheeler, et al., ___F.Supp.3d___, Case No. 20-CV-00670-WHO (N.D. Cal. June 2, 2020).]

Factual and Procedural Background

Plaintiffs Earth Island et al., (plaintiffs) sued EPA on January 30, 2020, alleging causes of action under the CWA and the Administrative Procedure Act (APA), claiming that the current NCP is “obsolete and dangerous.” Plaintiffs alleged that because the current plan permits the use of chemical dispersants proven harmful to humans and the environment, EPA is required under the CWA to amend or update the plan. Plaintiffs further alleged that EPA violated its duties under the APA to conclude a matter presented to it within a reasonable time. EPA filed a motion to dismiss, and the American Petroleum Institute filed a motion to intervene, which EPA did not oppose. Plaintiffs opposed both motions.

The District Court’s Decision

The CWA requires the President to prepare and publish a National Contingency Plan for removal of oil and hazardous substances and to minimize damage from oil and hazardous substance discharges, including containment, dispersal, and removal of oil and hazardous substances. The CWA also provides that the NCP “may, from time to time, as the President deems advisable” be revised or otherwise amended.

Under the CWA’s citizen suit provision, a citizen may bring suit against the EPA where there is alleged a failure to perform any act or duty which is not discretionary. To state a claim for relief, the citizen suit must allege “a nondiscretionary duty that is ‘readily-ascertainable’ and not ‘only [ ] the product of a set of inferences based on the overall statutory scheme.’”

A Mandatory Duty

The court first considered EPA’s argument that the plain language of the CWA is permissive, not mandatory. The court rejected this argument, noting that EPA’s permissive plain language argument appeared valid on first review “without context,” however courts routinely note that “may” does not always indicate discretionary or permissive action. As it related to the CWA, the court also observed the cases interpreting EPA’s obligations have held that EPA must review relevant guidelines for possible revision, and that formal revisions must comply with detailed statutory criteria. Here, the court noted that EPA’s duty to promulgate the NCP in the first instance is nondiscretionary.

An Ongoing Duty

The court also analyzed the statute’s context and found that the CWA requires EPA to take various actions related to the NCP, including: (i) to “prepare and publish the NCP;” (ii) to ensure the NCP provides “efficient, coordinated, and effective action;” (iii) to establish a Coast Guard strike team and national center to assist in carrying out the NCP, a system of surveillance and notice to safeguard against discharges of oil and hazardous substances and imminent threats of such discharges, and a schedule of dispersants that may be used to carry out the NCP; and (iv) to ensure that removal of oil and hazardous substances “shall, to the greatest extent possible, be in accordance with” the NCP. The court concluded that the NCP requirements in the CWA contemplate an ongoing duty that in turn strongly suggests that the duty to update and revise the NCP is not discretionary, but required.

The also court rejected EPA’s interpretation of the statute, because it would allow EPA to “fail to review, update, or amend the NCP for decades, despite scientific advances,” incidences of oil and hazardous substances discharges, and “an internal report concluding that the NCP was outdated and inadequate.” EPA’s interpretation would frustrate the purpose of the statute to achieve an efficient response to pollution.

The Motion to Intervene

Finally, the court denied the American Petroleum Institute’s motion to intervene because plaintiffs’ complaint attacked only EPA’s procedures with respect to amending or revising the NCP, not the substance of the regulations, citing several supporting cases. EPA’s rule-making process adequately protected the intervening party’s interests.

Conclusion and Implications

The current NCP is more than 25 years old. This decision will obligate EPA to update the NCP with new information related to the use of chemical dispersants proven harmful to humans and the environment. The court’s opinion is available online at: