On September 8, 2016, the Center for Biological Diversity ("Center") filed a complaint against EPA in the United States District Court for the District of Columbia (No. 16-1791), alleging that EPA failed to comply with its obligations under the Administrative Procedure Act ("APA") to respond to the plaintiff's petition requesting amendments to water quality criteria and the publication of additional guidance under Section 304 of the Clean Water Act ("CWA"), 33 U.S.C. § 1314, to address ocean acidification that the plaintiff contends is caused by greenhouse gas emissions.

In the complaint, the plaintiff alleges that it filed its petition on April 17, 2013, and that EPA's failure to respond for more than three years violated the agency's obligation under the APA to respond to petitions within a reasonable timeframe. The Center's petition was premised on the claim that carbon-dioxide-induced ocean acidification "is drastically transforming the chemistry of our oceans and the health of its ecosystems." The Center attributes ocean acidification to the burning of fossil fuels, on the theory that as the oceans absorb carbon dioxide, the waters become more and more acidic. The Center contends that the oceans absorb approximately one-third of carbon dioxide emissions and that seawater is 30 percent more acidic today compared to pre-industrial levels.

According to the Center, acidic seawater has a serious detrimental impact on marine ecosystems. For example, the Center alleges that acidic seawater erodes and hinders the development of shells and exoskeletons in marine invertebrates. Damage to these populations, in turn, negatively affects the entire marine food chain.

In attempting to compel EPA to take action, the Center cites Sections 304(a)(1) and 304(a)(2) of the CWA, which direct that EPA "shall" develop and publish, and "from time to time thereafter revise" water quality criteria "accurately reflecting the latest scientific knowledge" on the effects of the presence of pollutants in the water on the health and welfare of the biological ecosystem. The Center alleges that scientific evidence supports that current water quality criteria are inadequate to protect water quality and ecosystems from the effects of ocean acidification. According to the Center, EPA acknowledged as much in 2010 when it stated that it would publish guidance regarding ocean acidification. To date, no such guidance has been published by EPA.

The Center therefore requested that the district court declare that EPA has violated its duties under the APA and order the agency to respond to the Center's petition. Because the matter would still be in its early administrative stages at EPA, even if the district court awards the Center the relief it seeks, the precise nature of the water quality criteria (if any) will not emerge until after EPA responds to the Center's petition. EPA has not yet filed its response to the complaint.

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