Environmental Defense v. Leavitt

• Decision Date: 03 August 2004
• Docket Number: No. CIV.A. 03-1737(RMU).,CIV.A. 03-1737(RMU).
• Citation: 329 F.Supp.2d 55
• Court: U.S. District Court — District of Columbia
• Parties: ENVIRONMENTAL DEFENSE, Plaintiff, v. Michael O. LEAVITT, Administrator, United States Environmental Protection Agency,<SMALL><SUP>1</SUP></SMALL> Defendant.

329 F.Supp.2d 55

ENVIRONMENTAL DEFENSE, Plaintiff, v. Michael O. LEAVITT, Administrator, United States Environmental Protection Agency,¹ Defendant.

No. CIV.A. 03-1737(RMU).

United States District Court, District of Columbia.

August 3, 2004.

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David S. Baron, Washington, DC, for Plaintiff.

Eileen T. McDonough, U.S. DOJ, Washington, DC, for Defendant.

MEMORANDUM OPINION

DENYING CEED'S MOTION TO INTERVENE; GRANTING THE PARTIES' MOTIONS TO ENTER CONSENT DECREE

URBINA, District Judge.

I. INTRODUCTION

Plaintiff Environmental Defense, an environmental organization, brings suit against the Administrator of the Environmental Protection Agency ("EPA"), alleging that EPA failed to carry out its responsibilities under the Clean Air Act ("the CAA"), 42 U.S.C. §§ 7401 et seq., to promulgate regulations that provide guidelines and requirements for Best Available Retrofit Technology ("BART") for sources of air pollution that contribute to haze in national parks and wilderness areas. After the parties proposed to resolve this case via consent decree, the Center for Energy and Economic Development ("CEED") filed a motion to intervene accompanied by a proposed motion to dismiss for lack of subject-matter jurisdiction. The court now confirms its subject-matter jurisdiction and denies CEED's motion to intervene because CEED fails to demonstrate standing or an impairment of interest. Moreover, the court determines that the proposed consent decree is fair, adequate, reasonable and appropriate, and grants the parties' motions to enter the decree.

II. BACKGROUND

A. Statutory and Regulatory Background

Many parks and wilderness areas across the country suffer from manmade air pollution that significantly impairs visibility. Compl. ¶ 9. This visual impairment, or "haze," arises primarily from emissions of sulfur dioxide, oxides of nitrogen and particular matter from certain "stationary sources," including fossil-fuel power plants. Id. ¶¶ 10, 12.

Concerned about regional haze, Congress amended the CAA in 1977 to add section 169A (current version at 42 U.S.C. § 7491). Id. ¶ 11. 42 U.S.C. § 7491(a)(1) establishes as a national goal "the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from manmade pollution."² Id. ¶ 11 (quoting 42 U.S.C. § 7491(a)). Furthermore, § 7491(a)(4) requires the EPA Administrator to "promulgate regulations to assure ... reasonable progress toward meeting the national goal ... and ... compliance with the requirements of this section." 42 U.S.C. § 7491(a)(4).

The regulations that § 7491(a)(4) requires the EPA Administrator to promulgate must generally (1) provide guidelines to states on techniques for implementing the national goal ("Guidelines Requirement"), and (2) require that state implementation plans ("SIPs") contain requirements that certain "major stationary sources" install BART to control emissions contributing to visibility impairment ("BART Requirement"). Compl. ¶ 12; 42 U.S.C. § 7491(b)(1) (elaborating the Guideline Requirement), (b)(2) (elaborating the BART Requirement).

In December 1980, EPA issued its first visibility regulations in accordance with § 7491(b). Am. Corn Growers Assoc. v. Envtl. Prot. Agency, 291 F.3d 1, 3 (D.C.Cir.2002) ("American Corn"). The 1980 regulations "[were] limited ... to impairment attributable to specific sources and deferred any action on regional haze attributable to multiple sources located across broad geographic regions because there was insufficient data regarding the relationship between emitted pollutants, pollutant transport and visibility impairment." Id. (citing 45 Fed.Reg. at 80086).

Ten years later, Congress again amended the CAA to address visibility impairment, this time adding section 169B (current version at 42 U.S.C. § 7492). Compl. ¶ 13; American Corn, 291 F.3d at 4. The newly-added section (1) directs EPA to identify sources of visibility impairment in class I areas, (2) authorizes EPA to establish visibility-transport commissions to report on visibility impairment in affected regions, and (3) requires EPA to establish a visibility-transport commission for the Grand Canyon National Park. 42 U.S.C. § 7492(a), (c)-(d), (f). In addition, § 7492(e) provides that within eighteen months of receiving a report from a visibility-transport commission, EPA must "carry out [its] regulatory responsibilities under section 7491 of this title, including [establishing] criteria for measuring `reasonable progress' toward the national goal." Id. § 7492(e)(1); Compl. ¶ 13.

Pursuant to these directives, EPA established the Grand Canyon Visibility Transport Commission ("GCVTC") in November 1991. American Corn, 291 F.3d at 4. In June 1996, that commission issued its final report, triggering § 7492(e)'s eighteen-month clock for EPA to carry out its responsibilities under § 7491. Id.; Compl. ¶ 17. Accordingly, in July 1997 EPA published a proposed regulation that addressed regional haze. American Corn, 291 F.3d at 4. Two years later, in July 1999, EPA promulgated the final version of the regional-haze regulation ("the Haze Rule").³ Id.; Compl. ¶ 16. Among other requirements, the Haze Rule

provides that each state must develop a long-term strategy for achieving its visibility improvement goals. This strategy must include the identification of all major stationary sources subject to [BART] requirements ... us[ing] a group rather than a source-by-source approach. In addition, when establishing emission limits for BART sources, states must consider the improvement in visibility that would result if the technology were used at all comparable BART sources (rather than the improvement that a particular device at a particular source would accomplish).

American Corn, 291 F.3d at 4.

Subsequently, a group of industry associations, various states and an environmental organization challenged the Haze Rule. Id. at 2. In May 2002, the D.C. Circuit issued an opinion generally upholding the Haze Rule with the notable exception of its application of the BART Requirement. Id. at 5-15. The circuit court held that "the Haze Rule's BART provisions are contrary to the text, structure and history of [42 U.S.C. § 7491] ... because the rule isolates [42 U.S.C. § 7491(g)(2)'s] benefit calculation and constrains authority Congress conferred on the states." Id. at 9. The court therefore vacated the provisions of the Haze Rule pertaining to the BART Requirement and remanded them to EPA.⁴ Id. at 6; Compl. ¶ 16.

B. The Procedural Background

On August 15, 2003, the plaintiff filed suit in this court under 42 U.S.C. §§ 7491 and 7492, alleging that EPA failed to carry out its Guidelines Requirement and BART Requirement and requesting declaratory and injunctive relief directing EPA to complete these responsibilities. Compl. ¶¶ 14-19. As to the Guidelines Requirement, the plaintiff alleges that, although EPA proposed regional haze guidelines, EPA never promulgated regulations as required by § 7491(b)(1). Id. ¶ 15. As to the BART Requirement, the plaintiff alleges that EPA failed to promulgate regulations to require BART for certain facilities in accordance with § 7491(b)(2). Id. ¶ 16. Although EPA promulgated such regulations in July 1999, the plaintiff maintains that American Corn vacated that promulgation and thus nullified the effect of EPA's July 1999 promulgation and reset EPA's duty to promulgate. Id. Finally, the plaintiff maintains that § 7492(e)(1) requires EPA to have fulfilled the Guidelines Requirement and BART Requirement no later than December 1997, a date which has long since passed. Id. ¶ 17.

On August 18, 2003, only three days after the plaintiff filed its complaint, EPA filed a notice lodging a proposed consent decree ("decree") that, inter alia, requires EPA to issue its proposed regulations for the Guidelines Requirement and BART Requirement by no later than April 15, 2004 and its final regulations by no later than April 15, 2005. Def.'s Notice Attach. 1 ¶ 2. The decree provides in pertinent part:

DEFINITION

1. For the purposes of this Consent Decree, the following terms shall have the following meaning:

"BART rule" shall mean the regulations and guidelines that are required to be promulgated and published in the Federal Register by the Administrator pursuant to 42 U.S.C. §§ 7491(a)(4), 7491(b) and 7492(e).

EPA OBLIGATIONS

2.a. i. No later than April 15, 2004, EPA shall sign for publication in the Federal Register a notice of proposed rulemaking setting forth its proposed BART Rule[;]

ii. No later than five calendar days following signature of the notice of proposed rulemaking, EPA shall deliver the notice to the Office of the Federal Register for prompt publication. Following such delivery to the Office of the Federal Register, EPA shall not take any step (other than as necessary to correct within 10 calendar days after submittal any typographical or other errors in form) to delay or otherwise interfere with publication of such notice in the Federal Register. EPA shall make available to Plaintiff, within five business days following signature by the Administrator or her delegate, copies of the notice of proposed rulemaking referenced in paragraph 2.a.i.

b. i. No later than April 15, 2005, EPA shall sign for publication in the Federal Register a notice of final rulemaking setting forth its final BART Rule;

ii. No later than five calendar days following signature of the notice of final rulemaking referenced in paragraph 2.b.i. above, EPA shall deliver notice to the Office of the Federal Register for prompt publication. Following such delivery to the Office of the Federal Register, EPA shall not take any step (other than as necessary to correct within 10 calendar days after submittal any typographical or other errors in form) to delay or otherwise interfere with publication of such notice in the ...