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Golden Gate University Law Review

Authors

Mary Lim

Abstract

In Natural Resources Defense Council v. EPA ("NRDC v. EPA"), the Natural Resources Defense Council ("NRDC") challenged the EPA's permit exemption for oil and gas construction sites as a violation of the CWA, claiming that the exemption was inconsistent with the CWA's goal of protecting the nation's waters. The United States Court of Appeals for the Ninth Circuit held that the EPA's rule was arbitrary and capricious in light of the EPA's consistent, long-standing position of requiring permits for sediment discharges. In addition, the Ninth Circuit supported its reasoning with the fact that Congress did not specifically mention the term "sediment" in the relevant statute or discuss what should or should not be exempt from permitting. This Note argues that the Ninth Circuit correctly held that the permit exemption was arbitrary and capricious not only because the EPA changed its long-standing position on what it considered a contaminant, but also because the permit exemption was manifestly contrary to the CWA, as it allowed discharges of a known pollutant to go unregulated from oil and gas construction sites. The permit exemption also lacked a permitting scheme to ensure oil and gas construction sites were indeed exempt. However, the court failed to address the EPA's attempt to carve out an exemption for one segment of the construction industry, oil and gas, and not for the rest of the construction industry. By not addressing this issue, the court has left the door open for the EPA to create exemptions that give preference to certain segments of the industry, but not to others in similar situations.

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