Our Children's Earth Foundation v. Regan

Background

Our Children’s Earth Foundation and Ecological Rights Foundation, described in the opinion as nonprofit corporations focused on environmental protection and awareness, sued Michael S. Regan, the Environmental Protection Agency’s Administrator; Martha Guzman, the Regional Administrator for EPA Region IX; and the Environmental Protection Agency. The plaintiffs sought injunctive and declaratory relief under the Clean Water Act’s citizen-suit provision.

The plaintiffs alleged that the EPA Administrator failed to perform a mandatory duty under 33 U.S.C. § 1314(a)(6): identifying, publishing, and annually updating information about water-quality standards, the pollutants associated with those standards, and the waters to which the standards apply. The plaintiffs contended that the EPA had published only a partial, outdated, and inaccurate list. The defendants stated that the EPA maintained a public webpage compiling approved or effective state, territorial, and authorized tribal water-quality standards and continuously updated that webpage.

Before filing suit, the plaintiffs sent the defendants a notice of intent to sue on November 10, 2023. The notice alleged that the water-quality list was incomplete, substantially out of date, and inaccurate. After the initial complaint was filed, the parties’ lawyers discussed the matter, and the plaintiffs identified concerns about the California Water Quality Standards webpage. The EPA then corrected that webpage, and the plaintiffs filed an amended complaint.

Motion and analysis

The defendants moved to dismiss the amended complaint for lack of subject-matter jurisdiction and failure to state a claim. Under the Clean Water Act, a citizen suit alleging that the EPA Administrator failed to perform a nondiscretionary duty cannot begin until 60 days after the plaintiff gives notice. The notice must provide enough information to identify the alleged violation and allow the agency to take corrective action.

Judge Seeborg concluded that the plaintiffs’ notice described the statutory duty and generally explained the alleged failures, but it did not identify which “list” was supposedly defective. The plaintiffs did not have to identify every inaccurate or outdated water-quality standard. However, they had to identify the list at issue with reasonable specificity. The notice was ambiguous because the plaintiffs appeared to refer to Federal Register publications, while the defendants understood that the relevant list might be the EPA’s webpage.

The court rejected the argument that the EPA’s later correction of the California webpage proved that the notice was sufficient. According to the opinion, the EPA learned which webpage the plaintiffs meant only after the lawsuit began, when the parties communicated about the original complaint. Thus, the notice did not give the EPA a pre-suit opportunity to identify and correct the alleged violation.

Disposition

The court held that the inadequate notice deprived it of subject-matter jurisdiction and dismissed the First Amended Complaint without prejudice. The court did not reach the defendants’ alternative arguments that the plaintiffs had failed to identify an unperformed nondiscretionary duty or failed to state a claim. The opinion also states that summary judgment for the plaintiffs was unwarranted in light of the dismissal.