New York v. Browner

• Decision Date: 01 June 1999
• Docket Number: No. 97-CV-1028.,97-CV-1028.
• Citation: 50 F.Supp.2d 141
• Parties: State of NEW YORK, Plaintiff, and States of Connecticut and New Hampshire, Intervenor-Plaintiffs, v. Carol M. BROWNER, Administrator of the United States Environmental Protection Agency and the United States Environmental Protection Agency, Defendants.
• Court: U.S. District Court — Northern District of New York

50 F.Supp.2d 141

State of NEW YORK, Plaintiff and States of Connecticut and New Hampshire, Intervenor-Plaintiffs, v. Carol M. BROWNER, Administrator of the United States Environmental Protection Agency and the United States Environmental Protection Agency, Defendants.

No. 97-CV-1028.

United States District Court, N.D. New York.

June 1, 1999.

Office of Attorney General, Department of Law, Albany, NY, for plaintiff State of New York.

United States Department of Justice, Environmental & Natural Resources Division, Washington DC, for defendants, Kim L. Simmons, J. Jared Snyder, of counsel.

MEMORANDUM — DECISION & ORDER

McAVOY, Chief Judge.

The State of New York brings this citizen suit pursuant to the Clean Air Act of 1990 (the "Act"), 42 U.S.C. § 7604, as amended, against defendants, the Environmental Protection Agency and its Administrator, seeking to compel them to perform their nondiscretionary duties under 42 U.S.C. § 7651 note, Clean Air Act Amendments ("CAAA"), 1990 Pub.L. 101-549, § 404, 104 Stat. 2632 (1990) ("§ 404"). The States of Connecticut and New Hampshire have intervened in this action. The Complaint alleges that a report issued by the Environmental Protection Agency ("EPA") failed to comply with the statutory mandate of § 404(2) of the Act. Presently before the Court are the parties' cross-motions for summary judgment.

I. BACKGROUND

This matter was the subject of the Court's prior Memorandum — Decision & Order dated April 21, 1998, familiarity with which is assumed. See State of New York v. Browner, 1998 WL 213708 (N.D.N.Y. Apr.21, 1998). The relevant facts are as follows.

In 1990, Congress added Title IV, 42 U.S.C. § 7651, to the Act. Title IV addresses the harmful effects of acid rain by requiring reductions in emissions of sulphur and nitrogen oxides. Section 404 of Title IV, 42 U.S.C. § 7601 note, provides, in relevant part, that:

Not later than 36 months after the date of enactment of this Act, the administrator of the [EPA] shall transmit ... a report on the feasibility and effectiveness of an acid deposition standard or standards to protect sensitive and critically sensitive aquatic and terrestrial resources. The study required by this section shall include, but not be limited to, consideration of the following matters ...

(2) description of the nature and numerical value of a deposition standard or standards that would be sufficient to protect such resources.

In October 1995, the EPA submitted the "Acid Deposition Standard Feasibility Study Report to Congress" (the "Report").

Plaintiffs allege that the Report failed to comply with § 404(2)'s mandate that it include a description of the nature and numerical value of a deposition standard or standards that would be sufficient to protect sensitive and critically sensitive aquatic and terrestrial resources. Plaintiffs now move for summary judgment requiring defendants to comply with § 404(2), and defendants cross-move for summary judgment seeking dismissal of the Complaint.

II. DISCUSSION

A. Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, judgment may be entered in favor of the moving party if "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, all facts must be construed in favor of the nonmoving party. Id.; Buttry v. General Signal Corp., 68 F.3d 1488, 1492 (2d Cir.1995). Where the moving party has supported the motion by affidavits and/or documentary evidence, the nonmovant "may not rest upon mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in rule [56], must set forth specific facts showing that there is a genuine issue [of material fact] for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." FED.R.CIV.P. 56(e); see BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996). With this standard in mind, the Court will now address the motions for summary judgment.

B. Section 404 of the Act

In the present matter, the parties agree on virtually every material fact. The sole issue for review is whether defendants' Report satisfied the nondiscretionary duty under 404(2) of the Act. The central point of disagreement is the scope of the duty imposed by § 404(2). Plaintiffs maintain that defendants failed to describe the requisite acid deposition standard or standards. Defendants vehemently deny this assertion. The resolution of this dispute is a legal matter that revolves around the meaning of § 404. See LNC Investments, Inc. v. First Fidelity Bank, N.A. New Jersey, 173 F.3d 454, 468 (2d Cir.1999) ("[M]atter[s] of statutory interpretation and legal definition [are] properly decided by the court, which is the `final author[ity] on issues of statutory construction.'") (quoting United States v. Nolan, 136 F.3d 265, 271 (2d Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 2307, 141 L.Ed.2d 165 (1998)).

C. What Did the Statute Require?

Plaintiffs insist that the unambiguous meaning of the statutory language, together with Congress' intent, obliged defendants to include in the Report a deposition standard or standards sufficient to protect sensitive and critically sensitive aquatic (lakes and rivers) and terrestrial (forests) resources. Plaintiffs contend that the phrase "consideration of" did not qualify or limit defendants' "obligations to address the six specified requirements in the Report to Congress, [but] that phrase instead provides simply that EPA is free to consider, and include in the Report to Congress, matters in addition to the six requirements for the Report." Pl.Mem. of Law, at 13. Defendants insist that the plain meaning of § 404(2) required them to describe their consideration of such standards. "[Defendants] argue[] that the wording requires the Agency to describe in the Report the consideration the Agency has given to the listed items." Def.Mem. of Law, at 11. Alternatively, defendants assert that even if the statute required them to set forth such standards, the Report did so.

An analysis of statutory interpretation must, of course, start with the plain language of the statute itself. See Northwest Airlines, Inc. v. Transport Workers Union of Am., 451 U.S. 77, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981); United States v. Figueroa, 165 F.3d 111, 114 (2d Cir. 1998); Motor Vehicle Manufacturers Ass'n of the United States, Inc. v. New York State Dep't of Envtl. Conserv., 17 F.3d 521, 531 (2d Cir.1994); Himes v. Shalala, 999 F.2d 684, 688 (2d Cir.1993) ("On review of an agency's construction of a statute that it administers, a court must first determine whether the plain language of the statute speaks directly to the issue.") (citing Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984)). If necessary, this inquiry may be supplemented by the statute's legislative history and the underlying purpose and structure of the statutory scheme. See Northwest Airlines, 101 S.Ct. at 1580; see also Rock of Ages Corp. v. Secretary of Labor, 170 F.3d 148, 155 (2d Cir.1999); Motor Vehicle Manufacturers, 17 F.3d at 531.

Section 404 plainly required defendants to submit to Congress a "report on the feasibility and effectiveness of an acid deposition standard or standards to protect sensitive and critically sensitive aquatic and terrestrial resources." 42 U.S.C. § 7651 note. The parties do not dispute this. This was the fundamental purpose of § 404; it must be borne in mind when analyzing the remainder of § 404. That section continues to state that:

The study required by this section shall include, but not be limited to, consideration of the following matters:

(1) identification of the sensitive and critically sensitive aquatic and terrestrial resources in the United States and Canada which may be affected by the deposition of acidic compounds;

(2) description of the nature and numerical value of a deposition standard or standards that would be sufficient to protect such resources;

(3) description of the use of such standard or standards in other Nations or by any of the several States in acid deposition control programs;

(4) description of the measures that would need to be taken to integrate such standard or standards with the control program required by Title IV of the Clean Air Act;

(5) description of the state of knowledge with respect to source-receptor relationships necessary to develop a control program on such standard or standards and the additional research that is ongoing or would be needed to make such a control program feasible; and

(6) description of the impediments to implementation of such control program and the cost-effectiveness of deposition standards compared to other control strategies including ambient air quality standards, new source performance standards and the requirements to title IV of the Clean Air Act.

The dispute here focuses on what information § 404(2) required in the Report. In particular, the parties disagree over the effect of the phrase "consideration of" as it relates to the requirements of § 404(2).

The Court rejects plaintiffs' overly-broad reading of the statute that defendants were required to actually set acid deposition standards. Plaintiffs' interpretation must be rejected because the statute did not read that "the study shall include the nature and numerical value of a deposition standard or standards that would be sufficient to protect such resources." Rather, the statute reads that the study "shall include ... consideration of ... [a] description of the nature and numerical value of a deposition standard or standards that would be sufficient to protect such resources." § 404. In other words, under the...