ELR Citation: ELR 21161
No(s). 80-2630T (W.D. Tenn. May 2, 1990)

The court holds that the Environmental Protection Agency's (EPA's) duty to take enforcement action under §309(a)(3) of the Federal Water Pollution Control Act (FWPCA) is discretionary. Citizens brought suit to compel EPA to enforce the violation of FWPCA §301 effluent limitations. The court notes that although §309 uses the word "shall," which is generally an indication of mandatory intent, there is disagreement among the circuits whether the duty to take such enforcement action is mandatory. The court thus holds that absent a nondiscretionary duty to enforce, it lacks subject matter jurisdiction under the citizen suit provisions of §505, lacks jurisdiction under the mandamus provisions of §501, and lacks jurisdiction under the Administrative Procedure Act. Moreover, the court holds that the Declaratory Judgment Act does not provide the court with an independent grant of jurisdiction.

[A previous decision in this case is published at 14 ELR 20394.]

Counsel for Plaintiffs
Frank E. Deale
Center for Constitutional Rights
666 Broadway, New York NY 10012
(212) 614-6464

Counsel for Defendants
Carl Strass
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Joseph Freedman
U.S. Environmental Protection Agency
401 M St., SW, Washington DC 20460
(202) 382-7714

Todd, J.