9th Circuit Revives Case Over Delayed EPA Probes

     (CN) – The 9th Circuit reinstated a lawsuit accusing the Environmental Protection Agency of delaying an investigation into whether Vancouver, Wash., retaliated against a neighborhood association that had challenged its disbursement of federal funds.

     In 2003 the Rosemere Neighborhood Association complained to the EPA’s Office of Civil Rights that Vancouver discriminated against low-income and minority communities in disbursing federal funds meant to address lingering environmental problems.
     Shortly after Rosemere filed its complaint, the city revoked the group’s status as a formal neighborhood association.
     The nonprofit group cried retaliation, but the EPA office failed to act on its retaliation complaint within 20 days, as required by federal regulations.
     It wasn’t until Rosemere sued the EPA a year and a half later that the office agreed to investigate. The EPA moved to have the action dismissed as moot, saying there was no longer a controversy. The district court agreed.
     But another 18 months passed without any findings on the retaliation complaint. Rosemere again took action, seeking to force the office to finish the investigation it started in 2005.
     About 10 weeks later, the office released a report stating that, though the timing of the city’s revocation action was “suspicious,” it didn’t amount to retaliation.
     The EPA successfully urged the district court to toss Rosemere’s second action as moot.
     However, the Seattle-based appeals panel revived the complaint, citing the “voluntary cessation” exception to mootness, which requires proof that the “allegedly wrongful behavior could not reasonably be expected to recur.”
     In researching the office’s history of handling complaints, Rosemere learned that the office had missed its regulatory deadlines in nearly every complaint filed in recent years, according to the ruling.
     Thus, the neighborhood association had good reason to worry about future delay, the court noted.
     “[T]he burden is on the EPA to show that there is ‘very little chance’ of further delays, or that Rosemere faces an ‘insurmountable’ hurdle to filing another complaint,” Judge Tashima wrote.
     Rosemere seeks a court order requiring the EPA to process any complaints it files in the next five years within the 20-day deadline.

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