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?
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