Louisiana Environmental Action Network v. Browner

• Decision Date: 24 October 1996
• Docket Number: 94-1057 and 94-1058,94-1049,Nos. 94-1042,94-1054,s. 94-1042
• Parties: , 318 U.S.App.D.C. 370, 26 Envtl. L. Rep. 21,561 LOUISIANA ENVIRONMENTAL ACTION NETWORK, et al., Petitioners, v. Carol M. BROWNER, Administrator, and United States Environmental Protection Agency, Respondents, Chemical Manufacturers Association, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1379

87 F.3d 1379

43 ERC 1054, 318 U.S.App.D.C. 370, 26

Envtl. L. Rep. 21,561

LOUISIANA ENVIRONMENTAL ACTION NETWORK, et al., Petitioners, v. Carol M. BROWNER, Administrator, and United States Environmental Protection Agency, Respondents Chemical Manufacturers Association, et al., Intervenors.

Nos. 94-1042, 94-1049, 94-1054, 94-1057 and 94-1058.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 20, 1995.

Decided July 9, 1996.

Rehearing Denied Oct. 24, 1996.

Henry V. Nickel, Washington, DC, argued the cause for petitioners Alabama Power Company, et al., with whom Norman W. Fichthorn and Evelina J. Norwinski were on the briefs. Melvin S. Schulze, Atlanta, GA, and Lee B. Zeugin, Washington, DC, entered appearances.

David M. Driesen, Washington, DC, argued the cause for petitioners Louisiana Environmental Action Network, et al., with whom Sharon Buccino and David G. Hawkins were on the briefs. A brief was also filed by the same parties as intervenors.

William H. Lewis, Jr., Washington, DC, argued the cause for petitioners Clean Air Implementation Project, et al., with whom Michael A. McCord, David F. Zoll, Washington, DC, Nancy C. Cookson, Susan R. Connella, Arlington, VA, and V. Mark Slywynsky, Detroit, MI, were on the briefs. A separate brief was also filed by the same parties as intervenors. Hunter L. Prillaman, Washington, DC, and K. Denise Grant, Arlington, VA, entered appearances.

Karen L. Egbert, United States Department of Justice, Washington, DC, argued the cause for respondents, with whom Lois J. Schiffer, Assistant Attorney General, was on the brief. Patricia A. Embrey, Attorney, entered an appearance.

Before: BUCKLEY, SENTELLE and RANDOLPH, Circuit Judges.

SENTELLE, Circuit Judge:

Section 112(l) of the 1990 Amendments to the Clean Air Act permits the Environmental Protection Agency ("EPA") to delegate its authority and responsibility to implement various air-pollution requirements to a state if that state's program to regulate air pollution receives the EPA approval. See 42 U.S.C. § 7412(l). In a rule-making pursuant to this section, see 40 C.F.R. § 63.90-.96, the EPA established procedures to use in deciding whether it should approve state rules or programs and in governing the ramifications of such approval. See 40 C.F.R. § 63.90. Three petitioners have challenged these "delegation rules," alleging that the rules are illegal for various reasons, including that the rules violate the Clean Air Act or constitute an improper delegation of federal power.

We cannot address the merits of any of these claims. An Article III court cannot entertain the claims of a litigant unless that party has demonstrated constitutional and prudential standing, see, e.g., Warth v. Seldin, 422 U.S. 490, 517-18, 95 S.Ct. 2197, 2214-15, 45 L.Ed.2d 343 (1975), and unless its claim is constitutionally and prudentially ripe. See, e.g., Office of Com. of United Church of Christ v. FCC, 826 F.2d 101, 104 n. 2 (D.C.Cir.1987). None of these petitioners have demonstrated each of these essential predicates of judicial review. If, at some later time, one or more of the parties develops a justiciable claim, they will be able to seek judicial relief. See Eagle-Picher Indus. v. EPA, 759 F.2d 905, 913-14 (D.C.Cir.1985).

BACKGROUND

Under the Clean Air Act as amended, see Amendments to the Clean Air Act, Pub.L. No. 101- 549, Title III, § 301, 104 Stat. 2531 (1990), as codified at 42 U.S.C. § 7412 (1995), the EPA is authorized and required, inter alia, to "promulgate regulations establishing emissions standards for" a full range of major sources of hazardous air pollutants. 42 U.S.C. § 7412(d). After establishing these federal standards, the EPA is authorized to enforce them through appropriate administrative, civil, or (with the cooperation of the Attorney General) criminal actions. 42 U.S.C. § 7413(a)(3). In addition to mandating federal regulation of emissions of air pollutants, the Act expressly does not preempt states from adopting and enforcing their own regulations, with certain exceptions not here pertinent. 42 U.S.C. § 7416. Indeed, section 7412(l) declares that each state may develop and submit to the Administrator "a program for the implementation and enforcement ... of emissions standards and other requirements" for covered air pollutants.

The Act further empowers the Administrator of the EPA to approve or disapprove such state implementation plans based on statutory criteria, including the adequacy of the authorities contained in the program to assure compliance by emissions sources with applicable standards, regulations, and requirements. 42 U.S.C. § 7412(l)(5). In 1993, the EPA promulgated regulations to establish the standards the EPA will use in determining whether to approve a state's plan. See 40 C.F.R. § 63.90. These delegation rules, adopted pursuant to section 7412(l), make clear that federal authorities will enforce an approved state program "in place of " the otherwise applicable federal regulations. Id. Three groups of petitioners challenge these delegation rules.

The first group, who style themselves "the environmental petitioners," are Louisiana Environmental Action Network, Manasota-88 and the Natural Resources Defense Council (collectively "LEAN"). The environmental petitioners claim that the delegation rules do not adequately comply with the Clean Air Act, arguing that the Act mandates that state standards could not be less stringent than applicable federal standards, and that the delegation rules do not adequately assure compliance with this congressional mandate. Indeed, these petitioners argue that EPA's rules permit states to exempt sources of air pollution within their borders from the detailed requirements of the Clean Air Act.

The second group of petitioners, "the utilities petitioners," are Alabama Power Company, the Edison Electric Institute, the National Rural Electric Cooperative Association, the American Public Power Association, and a number of individual electric utilities (collectively "Alabama Power"). The utilities petitioners contend that the EPA's rules are invalid because they allow the agency to exceed its powers under the Act by making federally enforceable standards that are more stringent than the Act mandates. Alternatively, they contend that if the EPA's rules correctly interpret section 7412(l), then section 7412(l) is an unconstitutional standardless delegation of power.

The third petition is a joint petition by trade associations, specifically, the Clean Air Implementation Project, the Chemical Manufacturers Association, and the American Automobile Manufacturers Association, Inc. (collectively "CAIP"). This petition echoes the claims of Alabama Power and adds that the delegation rules arbitrarily permit state and federal authorities to compel compliance with newly approved, more stringent state Because these petitions present troubling questions of justiciability, we directed the parties to file additional briefs on standing. After reviewing the arguments of the parties, we conclude, for the reasons set out below, that only CAIP even arguably has standing, and that the claim of CAIP is not prudentially ripe.

regulations without adequate notice under federal law.

DISCUSSION

"Article III of the Constitution confines the federal courts to adjudicating actual 'cases' and 'controversies.' " Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Prudence similarly restrains courts from hastily intervening into matters that may best be reviewed at another time or in another setting, see Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967), especially when the uncertain nature of an issue might affect a court's "ability to decide intelligently." American Trucking Ass'ns, Inc. v. ICC, 747 F.2d 787, 789-90 (D.C.Cir.1984). Therefore, before we reach the merits of any claim, we must first assure ourselves that the dispute lies within the constitutional and prudential boundaries of our jurisdiction.

These limits on the authority of the federal judiciary have given rise to several " 'doctrines that cluster about Article III--... standing[,] mootness, ripeness, political question, and the like ...,' " by which we test the fitness of controversies for judicial resolution. Allen, 468 U.S. at 750, 104 S.Ct. at 3324 (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C.Cir.1982) (Bork, J., concurring)). Our standing inquiry focuses on the appropriateness of a party bringing the questioned controversy to the court. It requires that anyone who would invoke the aid of the courts in resolving a complaint must allege, at a minimum, an actual or imminent injury personal to the plaintiff that is fairly traceable to the defendant's conduct and that is likely to be redressed by the requested relief. Allen, 468 U.S. at 751, 104 S.Ct. at 3324. Having measured LEAN's claim against these standards, we determine that it falls short at the very first step: LEAN has not demonstrated an imminent injury personal to itself.

In its supplemental brief addressing the question of standing, LEAN argued that, because the delegation rules permit the EPA not to enforce federal air-pollution standards in a particular state as soon as the EPA approves that state's proposed program, the rules permit a potentially harmful enforcement gap if a state seeks section 7412 approval prior to that state putting its proposed program into effect. Assuming, for purposes of standing, that LEAN is correct on the merits, see In re Thornburgh, 869 F.2d 1503, 1511 (D.C.Cir.1989), and that the delegation rules may make it possible for an "enforcement gap" to develop, we nonetheless conclude that LEAN has not demonstrated an injury sufficient for standing.

At first glance, LEAN's claimed injury may be thought to collapse of its own unmanageable size. Fundamental standing doctrine instructs that, "when the asserted...