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Natural Resources Defense Council

United States District Court for the Northern District of California · Civil Procedure

Civil ProcedureSubject Matter JurisdictionMootnessRule 12(b)(1)Rule 12(b)(6)Clean Water Act Citizen Suitsmootnesscapable of repetition yet evading review

Facts

Following California's drought emergency proclamations, the State Water Resources Control Board granted a series of temporary urgency change petitions in 2014 through 2016 that amended or rescinded requirements in Water Rights Decision 1641 and related requirements tied to the Bay-Delta and Central Valley Plans. Plaintiffs alleged these temporary orders weakened flow, export, salinity, gate, and dissolved oxygen requirements and therefore revised EPA-approved state water quality standards. Plaintiffs sued EPA officials, claiming EPA had a nondiscretionary duty under the Clean Water Act to review and act on those revisions but failed to do so. By the time of the motion to dismiss, the challenged temporary orders had expired.

Issue

Whether the case was moot because the temporary state orders had expired, and whether plaintiffs plausibly alleged that EPA had a nondiscretionary duty to review those orders under the Clean Water Act. More specifically, the question was whether the state temporary orders could qualify as revisions to water quality standards even though they did not amend the text of the plans themselves.

Rule

A Clean Water Act citizen suit against EPA requires an alleged failure to perform a mandated, nondiscretionary duty. When a state action is alleged to revise water quality standards, EPA's review duty is triggered if the action has the effect of changing an existing water quality standard, not merely when the state formally amends the text of a water quality plan. A claim for declaratory relief is not moot when the challenged action is capable of repetition yet evading review, meaning its duration is too short for full litigation and there is a reasonable expectation the plaintiffs will face it again.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Oregon, the state water board issued a series of 120-day emergency directives during successive wildfire seasons allowing lower instream flow protections in a salmon-bearing river. By the time a conservation group sued federal officials for failing to review the directives under a citizen-suit provision, the latest directive had expired, but the complaint alleged the board had used the same mechanism each year and likely would do so again.

On a facial Rule 12(b)(1) motion, which is the best argument against mootness of the group’s claim for declaratory relief?

Explanation. The majority held declaratory relief may survive expiration of the challenged state action under the capable-of-repetition-yet-evading-review exception. The plaintiff must show both that the action is too short-lived for full litigation before it ends and that recurrence is reasonably expected. Short emergency directives repeatedly used in recurring conditions fit that framework. (Derived from Natural Resources Defense Council (n.d.).)