Our Children’s Earth Foundation v. EPA

The U.S. Court of Appeals for the Ninth Circuit issued a revised opinion in May 2008 in Our Children’s Earth Foundation (OCEF) v. U.S. Environmental Protection Agency (EPA), affirming and broadening the court’s October 2007 ruling that upheld EPA’s discretion in implementing key elements of the effluent limitation guidelines (ELG) program. The revised opinion rejects the final challenge brought by activist groups to the EPA’s implementation of the ELG program and represents a resounding victory for NACWA on all of the issues raised in the appeal. The previous Ninth Circuit opinion issued in October 2007 had granted EPA and the intervenors in the case, including NACWA, important victories on three of the four issues in the appeal, including a determination that EPA has discretion to set the timing of ELG plan publication and can identify potential new categories of pollution sources without necessarily developing new effluent guidelines for them. The new ruling, issued after EPA filed a request for a rehearing, grants EPA and the intervenors a victory on the fourth issue by finding that EPA has the discretion to choose not to use a technology-based approach in reviewing ELGs.

• 304(m) Complaint Final
• NACWA's 08/19/2004 Motion to Intervene
• 09/07/2004 Opposition to NACWA's Participation
• EPA July 20 Cross-Motion for Summary Judgment
  (Note: Original 304(m) Consent Decree included as Attachment 2)
• 9/15/04 NACWA Reply to Our Children's Earth's Objection to NACWA Intervention
  • NACWA Reply
  • Exhibit 1 - Consent Decree
  • Dunn Declaration
• Order Granting NACWA's Amicus Participation - Oct. 14, 2004
• Briefing Schedule and Amended Complaint - Dec. 10, 2004
• 2/28/05 OCE Motion for Summary Judgment
• 2/28/05 OCE Motion Opposing EPA's Position
• April 1, 2005 NACWA Filings
  • Reply
  • Intervenor
  • Order
• May 20, 2005 Court Opinion Finding In Favor of NACWA/EPA
• June 29, 2005 Court Order setting Appeal Briefing Schedule
• August 15, 2005 Denial of OCE's Motion to Transfer Claims to Appeals Court
• NRDC 10/05 amicus brief
• OCE's Opening Brief on Appeal (10/05)
• NACWA 11/23/05 Brief
• EPA's Dec. 2 Answering Brief
• Dec. 2 Effluent Guidelines Coalition Answer Brief
• February 13, 2006 9th Circuit Order to OCE re: Oversized Brief
• Feb. 22, 2006 OCEF FINAL Reply Brief
• March 1, 2006 OCE Request for Oversized Brief
• OCEF May 2006 final brief
• July 24, 2006 Supplemental Authority Notice by OCEF
• OCEF Notice of Supplemental Authority, 02/07/2007
• Riverkeeper, Inc. v. EPA (as cited to be OCEF), 02/07/2007
• EPA Respose to OCEF Notice of Supplemental Authority, 02/07/2007
• Ninth Circuit Opinion, October 29, 2007
• EPA Petition for Rehearing, 1/24/2008
• Revised Ninth Circuit Opinion, 5/23/2008
• OCEF Cert. Petition, 8/21/2008
• DOJ Brief in Opposition to Cert., 10/2008
• EGIC Brief In Opposition to Cert., 10/2008