ELR Citation: ELR 20240
No(s). s. 07-55183, 055261 (9th Cir. Sep 18, 2008)

The Ninth Circuit affirmed a lower court decision that the Clean Water Act (CWA) requires the U.S. Environmental Protection Agency (EPA) to issue effluent limitation guidelines (ELGs) and new source performance standards (NSPS) for the construction industry and upheld a permanent injunction compelling EPA to do so. The lower court properly exercised its jurisdiction over environmental groups' claim that EPA had violated its nondiscretionary duty to promulgate ELGs and NSPS for the construction industry under §505(a)(2). Where, as here, a plaintiff alleges that EPA has failed to perform a non-discretionary duty under the CWA and the plaintiff does not challenge the substance of any existing regulations, the district courts have exclusive jurisdiction under §505(a)(2). In addition, the environmental groups and state intervenors have standing. The pollution they complain of is that which ELGs and NSPS aim to address. Last, once EPA listed the construction industry as a point source category, it was required to promulgate ELGs and NSPS. The court therefore affirmed the lower court.