# Natural Resources Defense Council, Inc. v. Russell E. Train, in His Official Capacity as Administrator, Environmental Protection Agency

> Court of Appeals for the D.C. Circuit · March 10, 1975 · 510 F.2d 692

URL: https://www.frixlaw.com/law-library/cases/9461459

## Case

- **Full name:** NATURAL RESOURCES DEFENSE COUNCIL, INC. v. Russell E. TRAIN, in His Official Capacity as Administrator, Environmental Protection Agency, Et Al., Appellants
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** March 10, 1975
- **Citations:** 510 F.2d 692; 166 U.S. App. D.C. 312
- **Precedential status:** Published
- **Opinion:** Dissent by Robb
- **Judges:** Leventhal, Robb, Nichols, Claims
- **Cited by:** 357 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9461459

## How later opinions describe it (automated extraction)

- holding that “compliance with the permit program is a prerequisite to lawful discharge of pollutants”
- finding that the trial court acted reasonably in incorporating a publication schedule into its order that the EPA publish effluent limitation guidelines within one year to compel performance of the EPA’s statutory duty
- noting, with respect to the Administrator of EPA claiming inadequate resources to comply with statutory duty, that “[t]he sound discretion of an equity court does not embrace enforcement through contempt of a party’s duty to comply with an order that calls him to do an impossi…
- affirming district court's timetable given missed statutory deadline and lack of progress toward compliance
- noting that a court may choose not to hold a party in contempt if “he has in good faith employed the utmost diligence in discharging his ... responsibilities.”

## Opinion text

ROBB, Circuit Judge
(dissenting):
Although I do not quarrel with the able discussion and resolution of the merits in the majority opinion I believe the District Court should have dismissed this action for want of jurisdiction.
Section 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365 provides:
§ 1365. Citizen suits — Authorization; jurisdiction
(a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf—
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.
* * * 5k * *
Notice
(b) No action may be commenced—
(2) under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator,
*731 NRDC did not give the notice required by the statute; indeed at oral argument in this court counsel for NRDC stated that they purposely did not give notice because the giving of notice would have entailed a delay.
The notice requirement is plain and unequivocal and applies to this case, but the majority opinion in effect reads it out of the statute. In this I cannot concur.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9461459. Public record. Not legal advice.