Earth Island Institute v. Wheeler ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EARTH ISLAND INSTITUTE, et al., Case No. 20-cv-00670-WHO 8 Plaintiffs, ORDER DENYING MOTION FOR 9 v. LEAVE TO FILE MOTION FOR RECONSIDERATION 10 ANDREW R. WHEELER, et al., Re: Dkt. No. 47 Defendants. 11 12 Defendants the United States Environmental Protection Agency and its Administrator, 13 Andrew R. Wheeler (collectively, “EPA”) filed a motion for leave to file a motion for 14 reconsideration. Dkt. No. 47. The EPA argues that I failed to address dispositive arguments 15 raised by the EPA: namely, that “the plain language of the statute [33 U.S.C. § 1321(d)(3)] grants 16 the Administrator the discretion to determine when and how the National Contingency Plan 17 (“NCP”) should be revised.” Id. at 1. 18 Civil Local Rule 7-9(b)(3) states that a party may seek leave to file a motion for 19 reconsideration if it shows reasonable diligence and a “manifest failure by the Court to consider 20 material facts or dispositive legal arguments which were presented to the Court before such 21 interlocutory order.” The EPA argues manifest failure by the Court to consider its argument that 22 the statute at issue contends confers discretion to the Administrator. It states that I “did not 23 specifically address the portion of Section 1321(d)(3) that places authority in the President (which 24 has been delegated to the Administrator of EPA) to determine when it is advisable to amend or 25 revise the NCP. Id. at 4. 26 The exact terms of Section 1321(d)(3) were the central focus of the Order, including the 27 terms “may,” “from time to time,” and “as [the Administrator] deems advisable.” See Dkt. No. 42 1 for reconsideration. The EPA describes a “complete absence of analysis of the statute’s language 2 || regarding the Administrator as a decisionmaker.” Dkt. No. 47 at 5-6. But the EPA references 3 || only the language of Section 1321(d)(3), which was addressed in detail in the Order. 4 The EPA also argues that I did not address its argument as to the differences between Section 5 1321(d)(3) and the Toxic Substances Control Act (“TSCA”) at issue in In re A Community Voice, 6 878 F.3d 779, 784 (9th Cir. 2017). However, I recognized that “[n]o court has addressed the 7 question of whether Section 1321(d)(3) creates a non-discretionary duty to revise or amend the NCP.” 8 || Order 5. I stated that the provision at issue in Community Voice was “almost identical” but also 9 addressed the difference in terms “as advisable” and “as necessary.” Id. at 7. 10 The EPA’s arguments amount to an improper repetition of the arguments that it made tn its 11 motion to dismiss, which I rejected. Accordingly, there is no basis for granting its motion for leave to 12 file a motion for reconsideration. Its motion is DENIED. 13 IT IS SO ORDERED. 14 Dated: September 1, 2020 15 . 16 5 @iam H. Orrick — United States District Judge 18 19 20 21 22 23 24 25 26 27 28