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Ninth Circuit Permits Environmental Justice Lawsuit to Proceed In Light of EPA's Repeated Noncompliance

By: Paul S. Weiland, Reed W. Neuman, Benjamin Z. Rubin

On September 17, 2009, the United States Court of Appeals for the Ninth Circuit issued a decision critical of the United States Environmental Protection Agency ("EPA") for a consistent pattern of delay in processing environmental justice complaints filed with the agency. Rosemere Neighborhood Ass'n v. EPA, Ninth Circuit Case No. 08-35045. The decision sends a clear signal to EPA that the agency cannot ignore mandatory legal deadlines.

Under Title VI of the Civil Rights Act of 1964, EPA established the Office of Civil Rights ("OCR") to investigate discrimination complaints related to activities funded by the EPA. According to regulations promulgated by the EPA, "the OCR will review [a] complaint for acceptance, rejection, or referral to the appropriate Federal agency" within 25 days of receipt of the complaint. 40 C.F.R. § 7.120(d)(1)(i). Further, regulations provide that if a complaint is accepted, OCR must issue preliminary findings within 180 days of initiating the complaint investigation. Id. § 7.115(c)(1).

In 2003, plaintiff-appellant Rosemere Neighborhood Association ("Rosemere") filed a complaint with OCR alleging that the City of Vancouver, Washington ("City") failed to use EPA funds to address environmental problems in low-income and minority communities. OCR eventually dismissed this complaint, concluding that Rosemere failed to establish the requisite nexus between EPA funds and the City's conduct. Shortly after Rosemere filed its complaint with OCR, the City revoked Rosemere's status as a neighborhood association. In response, Rosemere filed a second complaint with OCR, this one alleging unlawful retaliation by the City.

After 18 months of inaction by OCR, Rosemere filed a federal lawsuit seeking to compel OCR to accept or reject the second complaint. Six weeks later OCR notified Rosemere that it had accepted the complaint for investigation. EPA then moved to dismiss the federal action as moot. The district court granted the motion, concluding that the delay was simply an "isolated instance of untimeliness and oversight."

In February 2007, because the OCR had failed to complete its investigation into the complaint after 18 months, Rosemere filed a second federal action seeking a declaratory judgment and an injunction compelling OCR to complete its investigation. Ten weeks later OCR completed its investigation, concluding that while the timing was "suspicious," the City's action did not amount to impermissible retaliation. Again, EPA moved to dismiss the federal action on mootness grounds.

Prior to the Court's ruling on the motion to dismiss, Rosemere conducted some limited discovery that indicated OCR had consistently missed its regulatory deadlines in recent years. In light of this discovery, Rosemere filed an amended complaint, adding a claim for injunctive relief to compel OCR to timely process all complaints filed by Rosemere within the next five years. To support this claim, Rosemere stated that it intended to re-file its original complaint with additional documentation demonstrating the requisite nexus between EPA funds and the City‘s conduct.

In opposition to the motion to dismiss, Rosemere asserted that because OCR had only performed in response to the federal litigation, the controversy fell squarely within an exception to the mootness doctrine.

After the district court granted the EPA's motion to dismiss, Rosemere appealed. The Ninth Circuit reversed, explaining that the district court had improperly placed the burden on Rosemere to demonstrate likely future delay, instead of on EPA to demonstrate that Rosemere will not encounter further regulatory delays in OCR's processing of its complaints. The Ninth Circuit further explained that to satisfy its burden, EPA must demonstrate either that there was "very little chance" of further delays or that Rosemere could not file another complaint. The Ninth Circuit found that EPA failed to satisfy its burden, noting strong evidence of a consistent pattern of delay by OCR, and that Rosemere had already stated its intent to file another complaint with OCR.

While grounded in discrimination complaints, this decision has potentially broad ramifications in the environmental arena. Environmental plaintiffs, many of whom are "repeat customers," frequently face similar delays when seeking agency review of listing petitions or other actions. As such, federal environmental agencies are likely to face additional pressure to adhere to regulatory deadlines, and if they fail to do so, increased litigation.

Paul Weiland is the Land Use Practice Group Leader at Nossaman. He counsels clients regarding environmental and land use matters and litigates such matters in trial and appellate courts under a variety of statutes. He can be reached at 949.833.7800 or

Reed Neuman represents major manufacturers and other corporations on environmental compliance disputes in administrative and trial courts and has a particular experience with contaminated media and associated natural resource damage (NRD) claims. He can be reached at 202.887.1480 or

Ben Rubin is an Associate in the Land Use Practice Group. He assists clients on a variety of issues, including matters dealing with the Federal and State Endangered Species Act, the California Environmental Quality Act, and local zoning variances. He can be reached at 949.833.7800 or

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