JUDICIAL DEVELOPMENTS

December 2002

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Ninth Circuit Finds Dismissal of CERCLA Claim against EPA Appropriate but Clean Water Act Claim against Corps of Engineers May Proceed
Dierker, et al. v. Clarke, et al.

Two individual litigants challenging agency action at a sediment cleanup in Washington State had their Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) claims against the U.S. Environmental Protection Agency (EPA) dismissed because they failed to allege a non-discretionary act. Their Clean Water Act (CWA) claims against the U.S. Army Corps of Engineers (Corps) were reinstated, however, after the agency formally issued a permit under the CWA during the pendency of the appeal.