EPA cannot be sued to enforce clean water laws, appeals court rules

By David Kravets Associated Press Writer
Wednesday October 03, 2001

SAN FRANCISCO — A federal appeals court said Tuesday that the Environmental Protection Agency cannot be sued to enforce clean water laws. 

The decision stemmed from a suit the Sierra Club brought against the EPA last year claiming the government had evidence that the Nogales International Wastewater Treatment Plant, in Nogales, Ariz., was polluting the Nogales Wash and the Santa Cruz River. 

Because of cracked sewage pipes, the suit maintained, hepatitis and cholera have been detected in the two waterways. 

Environmentalists sued the International Boundary and Water Commission, and the city of Nogales, both of which operate the plant, and they sued the EPA. The Sierra Club reached an out-of-court settlement with the city and water commission to clean up the plant, but appealed a federal judge’s decision barring the group from demanding that the EPA take action against the plant. 

The 9th U.S. Circuit Court of Appeals noted that the EPA, like criminal prosecutors, are immune from suits for actions they do not take. The appeals panel said the government, not the judiciary, should decide what environmental action should be done, just as prosecutors decide whether to charge a suspected criminal. 

Two other federal circuits have ruled similarly. All three circuits, however, said the public has the right to sue suspected water polluters, which resulted in the settlement of the Sierra Club’s case. 

The Arizona Center for Law in the Public Interest in Tuscon, which argued the case on behalf of the Sierra Club, urged the 9th Circuit not to follow its sister circuits. 

“We felt the two other circuits had decided it incorrectly,” said the group’s attorney, Joy Herr-Cardillo. 

She said the group was considering asking the U.S. Supreme Court to review the decision. 

The high court might be more apt to intervene had the 9th Circuit ruled otherwise. The Supreme Court usually reviews cases when there is a split among circuits. 

The case is Sierra Club v. Whitman, 00-16895.