285 F.3d 63 (D.C. Cir. 2002), 01-5123, Sierra Club v. Whitman

Docket Nº:01-5123, 01-5299.
Citation:285 F.3d 63
Party Name:SIERRA CLUB and Missouri Coalition for the Environment, Appellants, v. Christine Todd WHITMAN, Administrator, EPA, et al., Appellees.
Case Date:April 05, 2002
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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285 F.3d 63 (D.C. Cir. 2002)

SIERRA CLUB and Missouri Coalition for the Environment, Appellants,


Christine Todd WHITMAN, Administrator, EPA, et al., Appellees.

Nos. 01-5123, 01-5299.

United States Court of Appeals, District of Columbia Circuit.

April 5, 2002

Argued Feb. 20, 2002.

Rehearing and Rehearing En Banc Denied Aug 6, 2002.

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Appeals from the United States District Court for the District of Columbia (98cv02733).

Douglas R. Williams argued the cause for appellants. With him on the briefs were Lewis C. Green and Joseph Mendelson III.

Ronald M. Spritzer, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were John C. Cruden, Assistant Attorney General, Greer S. Goldman and Eileen T. McDonough, Attorneys. Kathryn E. Kovacs, Attorney, entered an appearance.

James E. Ryan, Attorney General, and A. Benjamin Goldgar, Assistant Attorney General, State of Illinois; Jeremiah W. (Jay) Nixon, Attorney General, State of Missouri, and James R. Layton, State Solicitor, were on the brief for appellees State of Illinois and State of Missouri.

Bradley S. Hiles was on the brief for appellees Associated Industries of Missouri, Inc., et al.

Before: HENDERSON, RANDOLPH, and ROGERS, Circuit Judges.


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RANDOLPH, Circuit Judge

The complicated procedural history of these consolidated appeals from the district court masks the simplicity of the three issues presented. In light of the complexities, a summary of these issues would serve no useful purpose at this point. We will begin instead with an abbreviated account of how the cases reached this court.


More than a decade ago, the Environmental Protection Agency designated St. Louis, Missouri a "nonattainment" area of "moderate" classification for ozone. See 56 Fed. Reg. 56,694, 56,751, 56,788 (Nov. 6, 1991) (codified at 40 C.F.R. §§ 81.314, 81.326). As a consequence of EPA's designation, Missouri and Illinois had to revise their state implementation plans to attain the primary standard for ozone, 42 U.S.C. § 7511a(a); the time for attainment became November 15, 1996, see 42 U.S.C. § 7511(a)(1) tbl.1; and EPA had to determine, within six months of the attainment date (by about May 15, 1997), whether St. Louis had reached the primary standard. See 42 U.S.C. § 7511(b)(2)(A). If St. Louis were not in attainment, the Clean Air Act directed EPA to reclassify the area--to the "serious" level, or a higher level applicable to the area's "design value" (as calculated by EPA using readings from the area)--and to publish a notice of nonattainment in the Federal Register within the same six month window. See id. § 7511(b)(2)(A)(i)-(ii) & (B).

The higher an area's nonattainment classification, the more stringent and numerous are the requirements placed upon the States to take action to improve the region's air quality. See generally 42 U.S.C. § 7511a. If, for instance, St. Louis's classification were at the "serious" level, Illinois and Missouri would have to implement an "enhanced" vehicle inspection and maintenance program to reduce hydrocarbon and nitrogen oxide emissions from motor vehicles. See 42 U.S.C. § 7511a(c)(3).

In November 1998, after giving EPA notice, the Sierra Club filed a complaint, invoking the Act's citizen-suit provision. 42 U.S.C. § 7604(a)(2). The complaint alleged that EPA had not performed its nondiscretionary duty to publish a timely notice of nonattainment in the Federal Register and a notice of the reclassification of St. Louis's ozone status. The argument was in the alternative: either EPA had made a determination of nonattainment and failed to publish it, or EPA had not made a determination although the Act required it to do so. EPA admitted that it had not made the required determination. After permitting the States of Missouri and Illinois and several associations to intervene as defendants, the court ordered EPA to make a determination of St. Louis's ozone air quality attainment status by March 12, 2001, and to publish any required notices in the Federal Register by March 20, 2001. Sierra Club v. Browner, 130 F.Supp.2d 78, 95 (D.D.C.2001)...

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