9th Circuit Panel Rejects POTWs' Challenge To EPA Testing Guidance

摘要

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit has unanimously upheld a lower court's dismissal of California wastewater utilities' long-running challenge to a 2010 EPA guidance on using a specific statistical method for assessing water toxicity, finding the guidance was not a final agency action that could be litigated."The Administrative Procedure Act [APA] allows a plaintiff to challenge only final agency action, and an agency's action is final only if it imposes legal consequences," Judge Eric Miller writes in the Aug. 5 ruling in Southern California Alliance of POTWs (SCAP) v. EPA. "Because the guidance at issue imposes no such consequences, we conclude that the APA does not permit this challenge, and we affirm the district court's judgment in favor of the agency" to dismiss the case.The ruling follows oral argument last year where Judge Patrick Schiltz, sitting on the panel by designation from the U.S. District Court for the District of Minnesota, told attorney Melissa Thorme, representing publicly owned treatment works (POTWs), that her brief had numerous lengthy sentences that use "a lot of verbs" and contain so many conditional phrases that he was unclear what her clients are seeking.In contrast, Schiltz told Justice Department (DOJ) attorney John David Gunter, representing EPA, that his "brief was really well done." Schiltz added that perhaps Gunter was fooling all the judges, but his arguments were easy to understand.