Our Children's Earth Foundation v. United States Environmental Protection Agency

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OUR CHILDREN’S EARTH 
FOUNDATION, and ECOLOGICAL
RIGHTS FOUNDATION; ECOLOGICAL
RIGHTS FOUNDATION,
Plaintiffs-Appellants,
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; MICHAEL O. No. 05-16214
LEAVITT, Administrator of EPA;
STEVEN L. JOHNSON,
Defendants-Appellees,
 D.C. No.
CV-04-02132-PJH
ASSOCIATION OF METROPOLITAN OPINION
SEWERAGE AGNENCIES; EFFLUENT
GUIDELINES INDUSTRY COALITION;
THE UTILITY WATER ACT GROUP
(UWAG); NATIONAL
ASSOCIATION OF CLEAN WATER
AGENCIES (NACWA),
Defendants-Intervenors-
Appellees.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted
February 13, 2007—San Francisco, California

Filed October 29, 2007

Before: J. Clifford Wallace, Dorothy W. Nelson, and
M. Margaret McKeown, Circuit Judges.

14215
14216 OUR CHILDREN’S EARTH v. EPA
Opinion by Judge McKeown;
Partial Concurrence and Partial Dissent by Judge Wallace
14218 OUR CHILDREN’S EARTH v. EPA

COUNSEL

Christopher Sproul, Environmental Advocates, San Francisco,
California, for the appellant.

Sue Ellen Wooldridge, Assistant Attorney General, Washing-
ton, DC, for the appellees.

Fredric P. Andes, Carolyn S. Hesse, and David T. Ballard,
Barnes & Thornburg, L.L.P., Chicago, Illinois, for intervenor-
appellee Effluent Guidelines Industry Coalition.
 OUR CHILDREN’S EARTH v. EPA 14219
David W. Burchmore and Jill A. Grinham, Squire, Sanders,
& Dempsey L.L.P., Cleveland, Ohio, for intervenors-
appellees Association of Metropolitan Sewerage Agencies,
now known as National Association of Clean Water Agen-
cies.

Melanie Shepherdson, National Resources Defense Counsel,
Washington, DC, amicus in support of the appellants.

Jeffrey Odefey, Waterkeeper Alliance, Tarrytown, New York,
amicus in support of the appellants.

OPINION

McKEOWN, Circuit Judge:

In 1972 Congress passed the Clean Water Act (“CWA” or
“the Act”) “to restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters.” See Federal
Water Pollution Control Act Amendments of 1972 (Clean
Water Act of 1972), Pub. L. No. 92-500, 86 Stat. 816 (1972),
codified at 33 U.S.C. § 1251(a). Central to that legislation and
later amendments is the notion that pollution discharges
would be controlled through technology-based effluent limita-
tions.

Environmental advocates, Our Children’s Earth Foundation
and Ecological Rights Foundation (collectively “OCE”), filed
this citizen suit under the Clean Water Act, 33 U.S.C. § 1251
et seq., alleging that the Environmental Protection Agency
(“EPA” or “the Agency”) has failed to fulfill its mandate to
review effluent guidelines and limitations in a timely manner
and in accord with technology-based standards. Specifically,
OCE claims that EPA violated its statutorily-mandated duties
by abandoning technology-based review in favor of hazard-
based review; neglecting to identify new polluting sources;
14220 OUR CHILDREN’S EARTH v. EPA
and failing to publish timely plans for future reviews. See
CWA § 301(b), 33 U.S.C. § 1311(b); CWA § 301(d), 33
U.S.C. § 1311(d); CWA § 304(b), 33 U.S.C. § 1314(b); CWA
§ 304(m), 33 U.S.C. § 1314(m).1

A technology-based approach to water quality focuses on
the achievable level of pollutant reduction given current tech-
nology, whereas a hazard-based2 approach seeks to identify
known hazards or contaminants in the water and to reduce the
prevalence of those hazards. See, e.g., S. Rep. No. 92-414, at
8 (1971), 1972 U.S.C.C.A.N. 3668, 3674-78. Although these
approaches are not mutually exclusive, OCE claims that EPA
jettisoned a technology-based approach altogether, thus abdi-
cating its statutory duties.

The district court granted judgment in favor of EPA, hold-
ing that the challenged acts or omissions were discretionary.
We agree that the decision whether to revise the effluent
guidelines falls within EPA’s discretion. We do not agree,
however, that in its periodic review of the guidelines, EPA
has discretion to ignore the technology-based criteria. Conse-
quently, we affirm in part, reverse in part, and remand for fur-
ther proceedings.

BACKGROUND

OCE’s amended complaint contains four claims alleging
non-compliance with what OCE characterizes as EPA’s man-
datory duties under the Act:
1
Sections of the Clean Water Act, 33 U.S.C. § 1251 et seq., are conven-
tionally cited using the sections of the original Act, rather than the section
numbers assigned after codification in the U.S. Code. We follow that con-
vention here. The first time we cite to a provision of the Act, we include
a preliminary parallel citation to the U.S. Code. All citations are to the
CWA unless indicated otherwise.
2
Hazard-based regulation is also referred to in the record as water-
quality-based and harm-based regulation.
 OUR CHILDREN’S EARTH v. EPA 14221
(1) EPA failed to review effluent guidelines based on the
“best conventional pollutant technology” (“BCT”) and “best
available technology” (“BAT”), as mandated by § 304(b),
(m);

(2) EPA failed to review existing effluent limitations as
required by § 301(b), (d);

(3) EPA failed to issue timely final effluent guidelines
plans as required by § 304(m)(1); and

(4) EPA failed to identify new polluting sources as
required by § 304(m)(1)(B).

In sum, OCE argues that the CWA requires, as a non-
discretionary matter, that the Agency take a particular
approach to water safety regulation: technology-based review,
published in a sufficiently timely fashion to afford a meaning-
ful opportunity for notice and comment. EPA and Intervenors
Effluent Guidelines Industry Coalition and Association of
Metropolitan Sewerage Agencies (now known as the National
Association of Clean Water Agencies) (together, “Interve-
nors”) counter that EPA’s non-discretionary duties do not
extend to a particular manner of performing reviews and revi-
sions.

We first address the argument by EPA and the Intervenors
that this suit was not properly brought under the citizen suit
provision of the Act, § 505(a), 33 U.S.C. § 1365(a)(2), but
rather should have been brought under § 509(b)(1), 33 U.S.C.
§ 1369(b)(1). Then, we consider whether the district court has
jurisdiction over each of OCE’s four claims under
§ 505(a)(2). Because § 505(a)(2) jurisdiction is predicated on
citizen enforcement of a non-discretionary duty, our analysis
focuses on whether the claims relate to discretionary or non-
discretionary duties under the Act.
14222 OUR CHILDREN’S EARTH v. EPA
ANALYSIS

I. JURISDICTION TO REVIEW AGENCY ACTION3

[1] The CWA contains two separate jurisdictional sections:
§ 505(a), known as the citizen suit provision, and § 509(b)(1),
which relates primarily to challenges to promulgation of cer-
tain standards and determinations. OCE brought suit under
§ 505(a)(2), which permits “any citizen [to] commence a civil
action on his own behalf . . . against the Administrator where
there is alleged a failure of the Administrator to perform any
act or duty under this chapter which is not discretionary with
the Administrator.”4 CWA § 505(a)(2).

[2] Alternatively, § 509(b)(1) permits suits against the EPA
Administrator for review of action

(A) in promulgating any standard of performance
under section 1316 of this title, (B) in making any
determination pursuant to section 1316(b)(1)(C) of
this title, (C) in promulgating any effluent standard,
prohibition, or pretreatment standard under section
1317 of this title, (D) in making any determination
as to a State permit program submitted under section
1342(b) of this title, (E) in approving or promulgat-
ing any effluent limitation or other limitation under
section 1311, 1312, 1316, or 1345 of this title, (F) in
issuing or denying any permit under section 1342 of
3
The Agency’s position on jurisdiction is not entitled to deference under
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984). See, e.g., Fox Television Stations, Inc. v. FCC, 280 F.3d 1027,
1038-39 (D.C. Cir. 2002) (“Nor is an agency’s interpretation of a statutory
provision defining the jurisdiction of the court entitled to our deference
under Chevron.”) (citing Adams Fruit Co. v. Barrett, 494 U.S. 638, 650
(1990)).
4
OCE’s amended complaint also cites the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 702, 706, as an alternative basis for jurisdiction, but
does not allege any claims under the APA.
 OUR CHILDREN’S EARTH v. EPA 14223
this title, and (G) in promulgating any individual
control strategy under section 1314(l). . . .

Suits brought pursuant to § 509(b)(1) must be filed directly

in the Circuit Court of Appeals of the United States
for the Federal judicial district in which [petitioner]
resides or transacts business. Any such application
shall be made within 120 days from the date of such
determination, approval, promulgation, issuance or
denial, or after such date only if such application is
based solely on grounds which arose after such
120th day.

CWA § 509(b)(1). Section 509(b)(1) actions, as opposed to
suits brought under § 505(a)(2), challenge the exercise of the
Administrator’s discretion in promulgating standards and
issuing determinations.

[3] So long as EPA’s challenged acts and omissions relate
to non-discretionary duties under the Act, OCE’s action was
properly brought in the district court under § 505(a)(2). To the
extent OCE challenges actions within the discretion of the
Administrator, the district court properly refused to exercise
jurisdiction under § 505(a)(2). Nonetheless, a jurisdictional
defect under § 505(a)(2) does not mean that jurisdiction is
proper under § 509(b)(1).

“[T]his Court has counseled against expansive application
of section [509(b)].” League of Wilderness Defenders v. Fors-
gren, 309 F.3d 1181, 1190 n.8 (9th Cir. 2002). Sec-
tion 509(b)(1) covers only challenges to “promulgation” or
“approval” or “determinations” on permits, not failure to
comply with allegedly mandated procedures, which is the
thrust of OCE’s suit.

Additionally, § 509(b)(1) lists a number of sections for
which review obtains in the court of appeals: §§ 301, 1312,
14224 OUR CHILDREN’S EARTH v. EPA
304(l), 1316, 1317, 1342, and 1345. Neither §§ 304(b) or
304(m) are referenced in § 509(b)(1). Because the challenge
here does not stem from the promulgation or approval of an
effluent limitation or permit, we need not decide whether
§ 509(b) encompasses a challenge under § 304. Compare E.I.
du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977)
(suggesting that the EPA could collapse the limitations to be
promulgated under §§ 301 and 304 into a single review), with
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1310 (9th
Cir. 1992) (holding that the sections listed in § 509 are suffi-
ciently specific that unlisted sections should not be interpreted
to be covered by § 509).

[4] We thus agree with the district court that the circuit
court’s exclusive jurisdiction “extends only to a substantive
review of the appropriateness of the guidelines actually pro-
mulgated, and not to the threshold question of whether the
statutory requirements of the CWA have been met.” No such
promulgated guidelines or limitations are at issue here. The
district court had jurisdiction under § 505(a)(2) to determine
whether EPA discharged its non-discretionary duties under
the CWA.

II. THE CHEVRON FRAMEWORK

In determining whether OCE’s four claims challenge non-
discretionary obligations under the Act, our first point of ref-
erence is the statute itself. We must first address whether
Congress resolved the contested issues in the statute. If so,
“the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” See Chevron,
467 U.S. at 842-43. Chevron deference is not due where the
clear dictates of the statute counsel an interpretation different
from the Agency’s. See Bonneville Power Admin. v. FERC,
422 F.3d 908, 920 (9th Cir. 2005). We “must reject adminis-
trative constructions which are contrary to clear congressional
intent.” Chevron, 467 U.S. at 843 n.9.
 OUR CHILDREN’S EARTH v. EPA 14225
In the event that congressional intent cannot be determined
or is ambiguous, the second step of the Chevron analysis con-
siders whether the agency’s interpretation of the statute is a
reasonable one. Id. at 843. Even if an opposing construction
of the statute is better supported by policy considerations, we
do “not sit to judge the relative wisdom of competing statu-
tory interpretations.” Chem. Mfrs. Ass’n v. Natural Res. Def.
Council, Inc., 470 U.S. 116, 134 (1985). As long as the agen-
cy’s construction “is not inconsistent with the language, goals,
or operation of the Act,” the agency should prevail. Id. How-
ever, the agency “may not ignore factors Congress required be
taken into account.” Earth Island Inst. v. Hogarth, 484 F.3d
1123, 1131 (9th Cir. 2007).

Although the line between a congressional mandate and an
area of agency discretion is not difficult to state, ascertaining
that line is not always as easy. When Congress specifies an
obligation and uses the word “shall,” this denomination usu-
ally connotes a mandatory command. See Alabama v. Boze-
man, 533 U.S. 146, 153 (2001). On the other hand, “[a]bsent
some provision requiring EPA to adopt one course of action
over the other, we can only conclude that EPA’s choice repre-
sented an exercise of discretion.” Farmers Union Cent. Exch.
v. Thomas, 881 F.2d 757, 761 (9th Cir. 1989).

However, not every decision is so easily categorized. As
the Supreme Court teaches, the decision-making process does
not necessarily collapse into a single final decision. “It is rudi-
mentary administrative law that discretion as to the substance
of the ultimate decision does not confer discretion to ignore
the required procedures of decisionmaking.” Bennett v. Spear,
520 U.S. 154, 172 (1997). In Bennett, considering a citizen
suit provision parallel to that in the CWA, the Supreme Court
held, “[s]ince it is the omission of these required procedures
that petitioners complain of, their . . . claim is reviewable.” Id.
at 172 (emphasis added).

With these general principles in mind, we consider the
CWA provisions relevant to each of OCE’s claims to deter-
14226 OUR CHILDREN’S EARTH v. EPA
mine whether the particular claim relates to a mandatory obli-
gation or discretionary agency function under the Act.

III. TECHNOLOGY-BASED REVIEW AND REVISION

A. HISTORY OF THE CWA AND TECHNOLOGY

By way of brief overview, when the CWA was enacted in
1972, its stated goal was the elimination of all discharges of
pollutants into the Nation’s waters by 1985. See CWA
§ 101(a)(1); 33 U.S.C. § 1251(a)(1). This goal was to be
accomplished through ambitious technological improvements,
because the previous water-quality based approach to pollu-
tant control had been “limited in its success.” S. Rep. No. 92-
414, at 8 (1971), 1972 U.S.C.C.A.N. at 3675. In the CWA’s
Declaration of Goals and Policy, Congress wrote, “it is the
national policy that a major research and demonstration effort
be made to develop technology necessary to eliminate the dis-
charge of pollutants into the navigable waters, waters of the
contiguous zone, and the oceans.” CWA § 101(a)(6).

The CWA formally prohibits the “discharge of a pollutant”
from any source into navigable waters except when autho-
rized by a permit issued under the National Pollutant Dis-
charge Elimination System (“NPDES”). See CWA § 301(a).
NPDES permits, issued either by the EPA, or by the states in
a federally-approved permitting system, are statutorily
required to set forth, at the very least, “effluent limitations”—
that is, certain “restriction[s] . . . on [the] quantities, rates, and
concentrations of chemical, physical, biological, and other
constituents which are discharged . . . into navigable waters.”
Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 491 (2d Cir.
2005) (citing S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe
of Indians, 541 U.S. 95 (2004)).

The specific effluent limitations contained in each NPDES
permit are determined by the terms of more general “effluent
limitation guidelines,” which are separately promulgated by
 OUR CHILDREN’S EARTH v. EPA 14227
the EPA. The effluent limitations and the guidelines have long
been understood to be determined according to the best avail-
able or practicable technology. See E.I. du Pont de Nemours
& Co., 430 U.S. at 121 (explaining the technology-based
character of effluent limitations and guidelines); see also
Waterkeeper Alliance, 399 F.3d at 491 (“ELGs, [Effluent
Limitation Guidelines] and the effluent limitations established
in accordance with them, are technology-based restrictions on
water pollution. They are technology-based, because they are
established in accordance with various technological stan-
dards that the Act statutorily provides . . . .”).

Since 1972 Congress has amended the CWA on a number
of occasions. In the 1985 amendments, Congress reaffirmed
its commitment to a technology-based approach to water qual-
ity regulation:

The technology-based approach to water pollution
control was adopted in 1972 because of the historical
ineffectiveness of the previous water-quality-based
approach. This approach failed because of uncertain-
ties about the relationship between pollutant loadings
and water quality and the association between water
quality and health and environmental effects. There
are still significant gaps in knowledge of these rela-
tionships. Consequently the reported bill reaffirms
the technologically-based approach established in
1972 as an immediate and effective method of
achieving the goals of the Act.

S. Comm. on Env’t & Pub. Works, 99th Cong., Report to
Accompany S. 1128 (1985 Clean Water Act Amendments) 3-
4 (Comm. Print 1985).

B. THE STATUTORY FRAMEWORK

[5] Three key statutory provisions of the CWA are at issue
here: §§ 301(d), 304(b) and 304(m). Section 301(d) requires
14228 OUR CHILDREN’S EARTH v. EPA
EPA to review, every five years, the effluent limitations
established under § 301(b)(2) and to revise such regulations
“if appropriate.” These processes are undergirded by a series
of mandated criteria stating what the regulations “shall” con-
tain. The mandated criteria include technology-based require-
ments. Sections 304(b) and (m) require an annual review of
“guidelines for effluent limitations” applicable to direct dis-
chargers and revision “if appropriate.” As in § 301, § 304(b)
includes mandated criteria that reference technology-based
requirements, without differentiating between application of
these criteria to promulgation, review or revision. Sec-
tion 304(m) specifically provides for a schedule for review of
the guidelines in accordance with § 304(b).

According to EPA, rather than conducting separate
reviews, it consolidates effluent limitations required under
§ 301(d) into effluent limitation guidelines under § 304(b). As
EPA puts it: “through its annual review of its consolidated
‘effluent limitation guidelines’ EPA also reviews the effluent
limitations they contain, thus meeting its review requirements
under § 301(d) and § 304(b) simultaneously.”

C. CRITERIA FOR REVIEW AND REVISION

It is undisputed that EPA has an obligation to review efflu-
ent guidelines and limitations for possible revision, and that
such a review is mandatory. It is also undisputed that EPA’s
ultimate decision whether to revise the guidelines and limita-
tions is discretionary, as “appropriate.” And, it is undisputed
that any revision must be in accord with detailed statutory
criteria that incorporate variants of the best-technology stan-
dard. What remains in dispute is whether, as part of its man-
dated review process, EPA must consider the technology-
based criteria. To address this question, we begin with the
statute itself.

[6] The Act imposes on EPA non-discretionary duties to
review its current effluent limitations guidelines regulating
 OUR CHILDREN’S EARTH v. EPA 14229
the pollutants discharged into the nation’s waters, and, “where
appropriate,” to revise them, according to the criteria in the
statute. See CWA §§ 301(d); 304(b), (m). Under § 304(b),
“the Administrator shall, after consultation with appropriate
Federal and State agencies and other interested persons, pub-
lish within one year of October 18, 1972, regulations, provid-
ing guidelines for effluent limitations, and, at least annually
thereafter, revise, if appropriate, such regulations.” The stat-
ute goes on to provide that “[s]uch regulations shall” conform
to specific criteria. The requirement of a technology-based
approach to promulgation and revision of regulations runs
throughout the statutory text of § 304(b).

Section 304(b)(1)(A) states:

Such regulations shall—identify . . . the degree of
effluent reduction attainable through the application
of the best practicable control technology currently
available for classes and categories of point sources
....

CWA § 304(b)(1)(A).

Section 304(b)(1)(B) relates that the regulations “shall”:

specify factors to be taken into account . . . . relating
to the assessment of best practicable control technol-
ogy currently available . . . includ[ing] consideration
of the total cost of application of technology in rela-
tion to the effluent reduction benefits to be achieved
from such application, and shall also take into
account the age of equipment and facilities involved,
the process employed, the engineering aspects of the
application of various types of control techniques
. . . . and such other factors as the Administrator
deems appropriate.5
5
This last phrase, “and such other factors as the Administrator deems
appropriate,” indicates, as OCE acknowledges, that the EPA could adopt
14230 OUR CHILDREN’S EARTH v. EPA
CWA § 304(b)(1)(B).

Section 304(b)(2)(A) continues to mandate a technology-
based approach, without differentiating between promulgation
and revision:

regulations shall . . . identify, . . . the degree of efflu-
ent reduction attainable through the application of
the best control measures and practices achievable
including treatment techniques, process and proce-
dure innovations . . . .

CWA § 304(b)(1)(A).

Section 304(b)(4)(A) yet again requires an analysis in terms
of “application of the best conventional pollutant control tech-
nology . . . .” Each of the subsections of § 304(b) includes a
mandatory requirement related to technology.

[7] Under § 304(m), EPA also has an obligation to publish
a biennial plan announcing a schedule for performing the
annual review and for establishing rules regarding any exist-
ing effluent guideline selected for possible revision as a con-
sequence of the annual review. Section 304(m)(1) states in
full:

(m) Schedule for review of Guidelines

(1) Publication

Within 12 months after February 4, 1987, and
biennially thereafter, the Administrator shall publish
in the Federal Register a plan which shall—

additional factors for consideration, including harm or risk-based factors.
The discretion to consider additional factors does not, however, render the
mandatory factors optional.
 OUR CHILDREN’S EARTH v. EPA 14231
(A) establish a schedule for the annual review
and revision of promulgated effluent guidelines, in
accordance with subsection (b) of this section [speci-
fying technology-based factors];

(B) identify categories of sources discharging
toxic or nonconventional pollutants for which guide-
lines under subsection (b)(2) of this section and sec-
tion 1316 of this title have not previously been
published; and

(C) establish a schedule for promulgation of
effluent guidelines for categories identified in sub-
paragraph (B), under which promulgation of such
guidelines shall be no later than 4 years after Febru-
ary 4, 1987, for categories identified in the first pub-
lished plan or 3 years after the publication of the
plan for categories identified in later published plans.

CWA § 304(m)(1).

In § 301, which deals with the five year review and revision
of effluent limitations, Congress wrote: “Any effluent limita-
tion required by paragraph (2) of subsection (b) of this section
shall be reviewed at least every five years and, if appropriate,
revised pursuant to the procedure established under such para-
graph.” CWA § 301(d). The cross-referenced subsection
(b)(2) mandates the application of technology-based criteria
in determining the applicable effluent limitations.

For example, § 301(b)(2)(A) states that effluent limitations
for categories other than publicly-owned treatment works
“shall require application of the best available technology
economically achievable . . . .” The mandated technology-
based criteria run throughout the text of § 301(b). See, e.g.,
CWA § 301(b)(1)(A) (“[E]ffluent limitations . . . shall require
the application of the best practicable control technology cur-
rently available . . . .”); § 301(b)(2)(E) (“[P]ollutants identi-
14232 OUR CHILDREN’S EARTH v. EPA
fied . . . shall require application of the best conventional
pollutant control technology . . . .”).

Under the first step of the Chevron analysis, the plain lan-
guage of these provisions reflects that the CWA repeatedly
mandates a technology-based approach as a non-discretionary
matter in the promulgation of the regulations, at least as one
methodology among others. Further, the statute makes clear
that the regulations must comport with technological criteria
that change over time, suggesting logically that review and
revision must attend to such criteria as well in order for the
regulations and limitations to remain in compliance with the
mandatory and temporally changing criteria. The statutory
language is unambiguous that revision decisions, although
discretionary as indicated by the “if appropriate” language,
are constrained by the statute’s mandate as to what “such reg-
ulations” “shall” accomplish. The statute states that the regu-
lations “shall” account for the technological factors without
distinguishing between promulgation and revision.

[8] While the overall structure of the Act strongly counsels
that any review to determine whether revision is appropriate
must contemplate the mandatory technology-based factors,
the statute does not expressly and unequivocally state as
much. Therefore, we move to the second step of the Chevron
analysis to consider whether EPA’s position that the review
need not abide by the same factors governing revision and
promulgation is reasonable. Our review of the statute, its pur-
pose, and its logical construction lead us to conclude that to
the extent EPA argues that it may totally ignore technology as
part of its annual review, EPA’s position is unreasonable. To
adopt EPA’s position would require us to “ignore factors
Congress required to be taken into account.” Earth Island,
484 F.3d at 1131.

Although the dissent questions the invocation of the Chev-
ron framework, we note that this approach gives the EPA the
benefit of any ambiguity or doubt in analyzing these inter-
 OUR CHILDREN’S EARTH v. EPA 14233
locking statutory provisions. Our charge, in any event, is to
interpret the statute and determine whether there is a manda-
tory duty. As explained below, under traditional principles of
statutory construction, the result is the same.

The statute all but explicitly states that the review is gov-
erned by the revision standards. Section 304(1)(A)—
pertaining to the schedule for the annual review of the
guidelines—cross-references § 304(b), which extensively
delineates the technology-based criteria. Under
§ 304(m)(1)(A) the Administrator “shall” “establish a sched-
ule for the annual review and revision of promulgated effluent
guidelines, in accordance with subsection (b) of this section.”
Since § 304(m) itself references the timing of the reviews, the
cross-reference to § 304(b) cannot relate solely to timing,
unless the cross-reference is mere surplusage. Similarly,
§ 301(d), pertaining to review and revision of effluent limita-
tions, cross-references § 301(b)(2), which in turn mandates
various technological considerations. The rule against sur-
plusage requires that we not regard Congressional acts as
meaningless and the amendment of acts as “mere surplusage.”
Natural Res. Def. Council, Inc. v. Train, 545 F.2d 320, 325
(2d Cir. 1976); see also Reiter v. Sonotone Corp., 442 U.S.
330, 339 (1978) (stating that “[in] construing a statute we are
obliged to give effect, if possible, to every word Congress
used”). The only reasonable interpretation of the cross-
referenced provisions is that they tie the review and revision
to § 304(b) and § 301(b), respectively, both of which mandate
a technology-based approach.

We next look at the common sense reading of the statute.
The clear purpose of review and revision is to provide for
continuing regulatory compliance with the statutorily-
mandated and temporally changing criteria reflecting what the
regulations and limitations “shall’ accomplish. If the regula-
tions and any revision must incorporate technology-based fac-
tors, how could EPA conduct a review to assess continuing
compliance with the statutorily-mandated technology-based
14234 OUR CHILDREN’S EARTH v. EPA
requirements, while ignoring technology considerations alto-
gether? For review to meaningfully determine whether revi-
sion is appropriate, such review must attend to the statutorily-
mandated technology factors that provide for what the regula-
tions are to accomplish. It makes no sense that Congress
would require promulgation and revision tethered to
technology-based requirements, but would somehow silently
render discretionary the choice as to whether to review in
light of the statutorily-required technological criteria. If the
review is not also technology-based, the review could hardly
inform the discretionary decision of whether revision is in fact
appropriate, thus ignoring Congress’ mandate as to what the
regulations and limitations “shall” accomplish. To be sure,
the ultimate decisions in the review process are discretionary
“as appropriate,” but the foundational standard for review—
the technology approach—is not optional.

In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme
Court highlighted the important distinction between a manda-
tory review process and an ultimately discretionary decision
to take action following the review. 502 U.S. at 172. The
Court considered a claim brought under the citizen suit provi-
sion of the Endangered Species Act (ESA), which, similar to
CWA § 505(a), authorizes suits against the Secretary of Com-
merce or of the Interior “where there is alleged a failure of the
Secretary to perform any act or duty under section 1533 of
this title which is not discretionary with the Secretary.” 16
U.S.C. § 1540(g)(1)(C). Petitioners alleged that the Secretary
failed to abide by the statutory mandate to “tak[e] into consid-
eration the economic impact, and any other relevant impact,
of specifying any particular area as critical habitat.” 520 U.S.
at 172. The mandatory criteria to be considered by the Secre-
tary under the ESA are followed by the statement that, except
where the extinction of the species is at issue, “[t]he Secretary
may exclude any area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of
specifying such area as part of the critical habitat.” Id. (quota-
tion marks and citation omitted).
 OUR CHILDREN’S EARTH v. EPA 14235
In Bennett, as here, the agency argued that judicial review
was not available because the Secretary had “not failed to per-
form any nondiscretionary duty.” in light of the discretionary
nature of the ultimate decision at issue. See 520 U.S. at 171.
Rejecting that analysis, the Supreme Court concluded that
“the fact that the Secretary’s ultimate decision is reviewable
only for abuse of discretion does not alter the categorical
requirement that, in arriving at his decision, he ‘tak[e] into
consideration the economic impact, and any other relevant
impact,’ and use ‘the best scientific data available.’ ” 520 U.S.
at 172 (citation omitted).

The challenge here mirrors that in Bennet v. Spear, in that
OCE alleges a failure by EPA to consider particular
statutorily-prescribed factors in making discretionary determi-
nations. As the Court made plain in Bennett, “discretion as to
the substance of the ultimate decision does not confer discre-
tion to ignore the required procedures of decisionmaking.” Id.

Significantly, our reading of the statute comports with
EPA’s own earlier interpretation of its review obligations.
EPA stated in its 2003 Notice in the Federal Register that
“[b]ecause CWA § 304(m)(1)(A) requires EPA to review pro-
mulgated guidelines in accordance with CWA section 304(b),
EPA interprets the statute to authorize EPA to employ the
same factors for its annual review that it would consider in
selecting BAT in a rulemaking context. EPA believes that this
is a reasonable approach because the outcome of EPA’s
annual review is a decision . . . identifying those effluent
guidelines for possible revision.” See Preliminary Effluent
Guidelines Plan for 2004-2005, 68 Fed. Reg. 250, 75515
(EPA Dec. 31, 2003). Now, EPA disavows that § 304(m)
links review procedures to revision and promulgation proce-
dures. This inconsistency in EPA’s position entitles its current
interpretation to less deference. See, e.g., Mt. Graham Red
Squirrel v. Madigan, 954 F.2d 1441, 1457 (9th Cir. 1992)
(“Given this fluctuation . . . we decline to rely on the Forest
Service’s ‘expertise.’ ”).
14236 OUR CHILDREN’S EARTH v. EPA
[9] Finally, the legislative history supports reading the
review provisions as mandating consideration of technology.
In adopting the legislation, the Senate Committee on Public
Works Conference Report recognized that the preexisting
harm-based or water-quality approach was “limited in its suc-
cess.” S. Rep. No. 92-414, at 8 (1971), 1972 U.S.C.C.A.N. at
3675.

Officials are still working to establish relationships
between pollutants and water uses. . . . The Commit-
tee adopted this substantial change because of the
great difficulty associated with establishing reliable
and enforceable . . . limitations on the basis of a
given stream quality . . . . The Committee recom-
mends the change to effluent limits as the best avail-
able mechanism to control water pollution. With
effluent limits, the Administrator can require the best
control technology; he need not search for a precise
link between pollution and water quality . . . . In
order to carry out . . . this legislation, a two phase
program . . . is created: the first based on best practi-
cable technology, the second based on best available
technology. In Phase I . . . all industrial pollution
sources must apply the best practicable technology
. . . . In Phase II . . . communities and industries will
be required to apply, where the goal of no-discharge
cannot be attained, the best available technology.

Id.

[10] The Committee report states that Congress intended
the CWA to adopt a technology-based approach, not just with
the initial regulations, but over time in multiple phases as
technology continuously improved. Although we have not
previously considered the particular question of EPA’s
review, in Crown Simpson Pulp Co. v. Costle, 642 F.2d 323,
327 (9th Cir. 1981), we acknowledged the technology-based
requirements of the CWA: “We need not repeat here the
 OUR CHILDREN’S EARTH v. EPA 14237
exhaustive discussions of the legislative history of the Act
. . . . These discussions demonstrate that a fundamental pur-
pose of the Act was to shift pollution control from a focus on
receiving water quality to a focus on the technological control
of effluent.” If EPA dispenses with technology-based consid-
erations altogether in deciding whether to revise the effluent
limitations and guidelines, it will be unable to fulfill Con-
gress’ mandate to tie effluent regulation to technological
improvements.

Despite the structure of the statute, EPA’s earlier statement
that its reviews under § 304 are governed by the revision
criteria, and the Act’s legislative history, EPA and the Inter-
venors argue that the technology-based approach provided for
in § 304(b) applied only to the initial promulgation of regula-
tions in 1972 and not to any subsequent review of those regu-
lations or limitations. EPA seizes on the language at the
beginning of § 304(b)—“the Administrator shall . . . publish
within one year of October 18, 1972, regulations, providing
guidelines for effluent limitations, and, at least annually there-
after, revise, if appropriate, such regulations”—and claims
that the mandatory language modifies only the promulgation
provision, not ongoing review for possible revision. Since the
mandate about what the regulations “shall” achieve does not
distinguish between promulgation, review and revision, the
plain language of the statute does not support EPA’s position.
This argument is not only strained, but it makes no sense. In
short, this position is unreasonable.

As we noted earlier, many of the particular technological
criteria the regulations and limitations “shall” incorporate
under § 301(b) and § 304(b) are temporally changing rather
than fixed in time. For instance, the statute mandates that the
regulations “shall” “identify” “the degree of effluent reduc-
tion attainable through the application of the best practicable
control technology currently available” and “the degree of
effluent reduction attainable through the application of the
best control measure and practices achievable including treat-
14238 OUR CHILDREN’S EARTH v. EPA
ment techniques” and “process and procedure innovations.”
CWA § 304(b)(1)(A)-(4)(B). How can the regulations con-
tinue over time to identify the level of effluent reduction
attainable through the best technology and procedure innova-
tions currently available if EPA’s review does not consider
post-1972 technological advances at all? It strains credulity to
the breaking point that Congress would provide in such great
detail relevant temporally changing technological factors, and
would then permit EPA to adopt regulations and limitations
that would freeze in time the technology available in 1972 or
even in the 1980s.

Finally, in support of its position that a technology-based
approach is discretionary, EPA also points to Norton v. S.
Utah Wilderness Alliance, 542 U.S. 55, 65-72 (2004), which
held that a citizen suit under the APA cannot “seek wholesale
improvement” of an agency “program by court decree.” Id. at
64. We first note that OCE does not seek to “improve” EPA’s
review but simply to ensure compliance with objective
criteria. The claim in Norton is also distinguishable from our
case in a number of other respects. First, the statutory lan-
guage in Norton was cast in discretionary and far broader
terms than the language in the CWA. Whereas Norton con-
cerned whether the Bureau of Land Management was manag-
ing wilderness areas in a manner “suitable” for preservation,
OCE challenges the omission of specific statutorily-
prescribed factors in EPA’s reviews. Notably, in Norton,
plaintiffs cited, in part, a plan rather than the statute itself as
a source of the duty in question. Finally, the language in the
plan took the form of “will” rather than “shall,” which the
Supreme Court found to lack the force of a binding commit-
ment. Id. at 69. Here, as in Bennett, the statute mandates cer-
tain criteria that are to inform discretionary determinations as
to the precise form of the regulations and effluent limitations.
The overlying discretion does not render the mandated criteria
discretionary.

[11] To the extent the EPA has completely abandoned a
technology-based review in favor of a hazard-based review,
 OUR CHILDREN’S EARTH v. EPA 14239
the Agency has breached its mandatory duties under
§§ 301(d) and 304(b), (m). Although the EPA may determine
in its exercise of discretion that no revision is appropriate, in
conducting its review to reach that decision, the Agency must
attend to the technology-based factors specifically prescribed
by the CWA.

[12] Because the district court determined that EPA had no
mandatory duty with respect to review requirements, the court
did not consider whether EPA breached that duty. At this
stage of the proceedings and on this record, however, it is not
clear whether the EPA has in fact abandoned the mandatory
technology-based approach altogether. While OCE claims
that EPA has abandoned this duty, EPA counters that in fact
it adopted a technology-based approach in addition to a harm-
based approach.6 Because this central dispute is unresolved,
we remand to the district court for further proceedings.

IV. PUBLICATION SCHEDULE PROPOSED BY OCE

[13] Section 304(m) requires biennial publication of a plan
for scheduling annual review and revision of the guidelines.
The plan must provide for public review and comment prior
to final publication. See CWA § 304(m)(2). OCE argues that
the plan should be synchronized with the annual review, but
as the district court correctly held, the Act does not require
this degree of harmonization.

[14] The statute requires only that the EPA abide by the
time limitations requiring biennial publication. Nowhere does
the statute require that the EPA synchronize its publication
6
For example, OCE claims that EPA has abandoned a technology-based
review, citing EPA’s own description of its annual review, which states,
“EPA did not . . . conduct a comprehensive screening-level review of the
availability of treatment or process technologies.” EPA now disputes this
characterization, claiming in its brief that “[i]n addition to conducting a
hazard-based review, EPA also directly reviewed the availability of
pollutant-reducing technologies for various industrial categories.”
14240 OUR CHILDREN’S EARTH v. EPA
with the calendar year. OCE objects that use of the word
“plan” implies that it be published before the described events
take place. Although this argument has logical appeal, it is
insufficient to trump the text of the statute, and the deference
owed to the EPA under Chevron.

[15] As long as the EPA meets the statutorily-prescribed
deadlines, and affords opportunity for notice and comment, it
has satisfied its mandatory duties under § 304(m). The publi-
cation schedule preferred by OCE is not mandated by the stat-
ute, and thus is not amenable to challenge under § 505(a)(2).

V. IDENTIFICATION OF NEW POLLUTING SOURCES

OCE also argues that EPA has failed to identify new cate-
gories of industry discharging toxic and nonconventional pol-
lutants not covered by existing effluent guidelines. The
district court found that in 2005 EPA identified only two new
sources for which no guidelines then existed. According to
OCE, following EPA’s 2003 review, EPA proposed not to
schedule promulgation of any new effluent guidelines.

[16] Under § 304(m)(1)(B), the Administrator “shall”
devise a plan which “shall—identify categories of sources dis-
charging toxic or nonconventional pollutants for which guide-
lines under subsection (b)(2) of this section and section 1316
of this title have not previously been published.” Id. The
Administrator is also required to schedule publication of
effluent guidelines for the categories identified under
§ 304(m)(1)(B). See CWA § 304(m)(1)(C).

[17] The statute does not require that the Administrator
identify all or any existing categories of sources, only that the
Administrator identify currently unregulated categories. The
Senate Committee Report on the 1985 Amendments states:
“Guidelines are required for any category of sources discharg-
ing significant amounts of toxic pollutants. In this use, ‘signif-
icant amounts’ does not require the Administrator to make
 OUR CHILDREN’S EARTH v. EPA 14241
any determination of environmental harm; any non-trivial dis-
charges from sources in a category must lead to effluent
guidelines.” S. Comm. on Env’t & Pub. Works, 99th Cong.,
Report to Accompany S. 1128 (1985 Clean Water Act
Amendments) 25 (Comm. Print 1985). The Senate Committee
Report suggests that it is at least within the discretion of the
Administrator to determine whether particular discharges are
non-trivial, and hence require new effluent guidelines.

[18] Applying Chevron deference, we hold that the identifi-
cation of new categories is a non-discretionary duty, but that
the precise number and kind of such categories identified is
discretionary with the Administrator. The statutory language
and the legislative history do not command otherwise. Since
EPA did identify two new categories of sources during the
period in question here, OCE’s challenge to the sufficiency of
new source identification is not properly brought under
§ 505(a)(2).

VI. MOTION TO TRANSFER

After filing a notice of appeal to this court, OCE filed a
motion to transfer its claims to this court as if they were origi-
nally filed here under § 509(b)(1). The district court did not
abuse its discretion in refusing to transfer claims to this court
after the notice of appeal had been filed. See Griggs v. Provi-
dent Consumer Discount Co., 459 U.S. 56, 58 (1982) (per
curiam) (holding that once a notice of appeal is filed, the dis-
trict court is divested of jurisdiction over the matter being
appealed); see also Miller v. Hambrick, 905 F.2d 259, 262
(9th Cir. 1990) (a challenge to the district court’s refusal to
transfer claims under 28 U.S.C. § 1631 is reviewed for an
abuse of discretion).

CONCLUSION

On remand, the district court has jurisdiction to consider
whether EPA is undertaking the mandated technology-based
14242 OUR CHILDREN’S EARTH v. EPA
review provided for under the Act. The district court properly
dismissed OCE’s claims regarding the scheduling of plan
publication and identification of new polluting sources, and
did not abuse its discretion in refusing to transfer OCE’s
claims to this court. The case is remanded for further proceed-
ings to determine whether EPA has in fact breached its non-
discretionary duties under §§ 301 and 304.

REVERSED and REMANDED for further proceedings as
to the claims challenging EPA’s alleged abandonment of a
technology-based approach; AFFIRMED as to the plan pub-
lication claim, new sources claim, and refusal to transfer
under 28 U.S.C. § 1631. Each party shall bear its own costs
on appeal.

WALLACE, Senior Circuit Judge, concurring in part and dis-
senting in part:

I agree with the majority that the CWA does not unambigu-
ously state that the EPA must conduct a technology-based
review of its effluent guidelines. Because the CWA does not
clearly mandate a particular method of review, I would hold
that the district court properly refused to exercise jurisdiction.

Environmental advocates OCE brought suit under section
505(a)(2) of the CWA. This section provides jurisdiction in
the district court for any claims alleging “a failure of the
Administrator to perform any act or duty under this chapter
which is not discretionary with the Administrator.” CWA
§ 505(a)(2). We have recognized that only “clear-cut” non-
discretionary duties give rise to jurisdiction under this section.
See Farmers Union Cent. Exch., Inc., 881 F.2d 757, 760 (9th
Cir. 1989). We have further emphasized that section 505(a)(2)
was “intended to provide relief only in a narrowly-defined
class of situations in which the Administrator failed to per-
form a mandatory function,” and was not intended to “permit
 OUR CHILDREN’S EARTH v. EPA 14243
the court to direct the manner in which any discretion given
the Administrator in the performance of those functions
should be exercised.” Kennecott Copper Corp. v. Costle, 572
F.2d 1349, 1355 (9th Cir. 1978) (quoting Wisconsin’s Envtl.
Decade, Inc. v. Wisconsin Power & Light Co., 395 F. Supp.
313, 321 (W.D. Wis. 1975).

I am not convinced that Chevron analysis is appropriate for
this case. We are not trying to determine whether we should
defer to the EPA’s interpretation of the statute. We are merely
trying to determine whether, objectively, the statute creates a
mandatory duty, and whether plaintiffs could therefore chal-
lenge the EPA’s failure to perform that duty in the district
court. In other words, it is not a question of whether the EPA
thinks the statute is mandatory, it is a question of whether we
do. With the Chevron confusion eliminated, this becomes a
relatively straightforward case.

It is undisputed that under the CWA, the EPA has an obli-
gation to review periodically its effluent guidelines and limi-
tations. It is further undisputed that the EPA has an obligation
to utilize technology-based criteria when it exercises its dis-
cretion to revise the guidelines and limitations. Nothing in the
CWA, however, specifically obligates the EPA to review the
effluent guidelines and limitations using a technology-based
approach. At most, the statutory provisions and legislative
history are ambiguous. Because the CWA does not create a
clear-cut, mandatory duty on the part of the EPA, I would
affirm the district court’s determination that it lacked jurisdic-
tion under 505(a)(2).

I join the majority in holding that the district court properly
dismissed OCE’s remaining claims. I also join in holding that
the district court did not abuse its discretion in refusing to
transfer OCE’s claims to this court.