Earth Island Institute v. Wheeler

Background

Earth Island Institute and other plaintiffs sued Andrew R. Wheeler and the U.S. Environmental Protection Agency under the Clean Water Act and the Administrative Procedure Act. Earth Island alleged that the National Contingency Plan, which governs responses to oil and hazardous-substance contamination, was obsolete and dangerous because it continued to permit chemical dispersants that Earth Island alleged were harmful to people and the environment. Earth Island alleged that the EPA had failed to update the plan for more than a quarter-century.

The EPA moved to dismiss only the Clean Water Act claim. The American Petroleum Institute separately moved to intervene, meaning it asked to become a party to the case. The EPA did not oppose that motion, while Earth Island opposed both motions.

Clean Water Act claim

The dispute concerned 33 U.S.C. § 1321(d)(3), which says that the President may, from time to time and as deemed advisable, revise or amend the National Contingency Plan. The EPA argued that the word “may,” along with the phrases “from time to time” and “as the Administrator deems advisable,” made any revision discretionary. Earth Island argued that the provision created a duty that the EPA could be required to perform through the Clean Water Act’s citizen-suit provision.

Judge Orrick concluded that the EPA has a non-discretionary, or mandatory, duty to revise or amend the plan in light of new information. He reasoned that the provision must be read in the context of the broader statutory scheme, which requires an efficient and effective response to oil and hazardous-substance pollution and reflects an ongoing effort to protect the nation’s waters. The court also relied on a Ninth Circuit decision involving similar statutory language, which treated an apparently permissive power to amend regulations as part of an ongoing duty.

The court held that the absence of a date-specific deadline did not make the duty discretionary. It concluded that the duty was clear enough to satisfy the requirement that a citizen-suit claim identify a specific, readily ascertainable statutory duty. Because Earth Island could bring the Clean Water Act claim, the court found that the claim satisfied both the subject-matter-jurisdiction standard under Federal Rule of Civil Procedure 12(b)(1) and the pleading standard under Rule 12(b)(6).

Intervention

The court also denied the American Petroleum Institute’s motion to intervene, both as a matter of right and permissively. The court characterized the lawsuit as challenging the EPA’s procedure and alleged failure to act, rather than challenging the substantive contents of the National Contingency Plan. It concluded that API had not identified a qualifying interest that warranted intervention and noted that API would have an opportunity to comment on substantive changes during the EPA’s rulemaking process.

Disposition

The court denied the EPA’s motion to dismiss and denied API’s motion to intervene. The order did not rule on the separate Administrative Procedure Act claim because the EPA’s motion did not seek its dismissal.