Air Alliance Hous. v. U.S. Chem. & Safety Hazard Investigation Bd.
| Decision Date | 04 February 2019 |
| Docket Number | Case No. 17-cv-02608 (APM) |
| Citation | 365 F.Supp.3d 118 |
| Parties | AIR ALLIANCE HOUSTON, et al., Plaintiffs, v. U.S. CHEMICAL AND SAFETY HAZARD INVESTIGATION BOARD, Defendant. |
| Court | U.S. District Court — District of Columbia |
Adam Scott Carlesco, Paula Naomi Dinerstein, Public Employees for Environmental Responsibility, Silver Spring, MD, for Plaintiffs.
Eileen T. McDonough, U.S. Department of Justice, Washington, DC, for Defendant.
This action seeks to compel a federal agency, Defendant U.S. Chemical and Safety Hazard Investigation Board ("CSB" or "the Board"), to promulgate regulations requiring persons to report accidental chemical releases to the CSB. The CSB does not deny that its enabling statute requires the agency to so act. See 42 U.S.C. § 7412(r)(6)(C)(iii). Instead, it advances two contentions to fend off Plaintiffs' suit. First, the CSB vigorously asserts that Plaintiffs lack standing to sue. Second, the CSB half-heartedly maintains that the agency's inaction has not been "unreasonably delayed," even though nearly 30 years have passed since Congress enacted the CSB's enabling statute. The court finds neither argument has merit. Accordingly, the court grants judgment in favor of Plaintiffs. As relief, the court directs the CSB to promulgate reporting regulations within 12 months of the date of the court's order.
Congress established the CSB by the Clean Air Act Amendments of 1990. See generally 42 U.S.C. § 7412(r)(6). Congress modeled the CSB on the "structure, activities and authorities of the National Transportation Safety Board." S. REP. NO. 101-228 at 228 (1989). The agency's mission is to investigate certain types of accidental chemical releases and to propose safety measures "to reduce the likelihood or the consequences of accidental releases." 42 U.S.C. § 7412(r)(6)(i), (ii).
To facilitate that mission, Congress directed the CSB to promulgate certain reporting requirements concerning accidental chemical releases. The agency's enabling statute provides: The Board "shall" "establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject to the Board's investigatory jurisdiction." 42 U.S.C. § 7412(r)(6)(C)(iii). The Board does not dispute that the quoted provision imposes an affirmative obligation to adopt reporting regulations. Yet, since beginning its operations in 1998, the CSB has not done as Congress directed.
Ten years ago, the agency did take a step towards developing regulations, but ultimately that effort came up empty. See generally Chemical Release Reporting , 74 Fed. Reg. 30,259, 30,260 (June 25, 2009) [hereinafter Chemical Release Reporting.]. In July 2009, the CSB published an advanced notice of proposed rulemaking to obtain comments on "how best to proceed with implementing [the reporting] requirement" before developing the final rule. Id. at 30,259. By the close of the commenting period, the CSB had received 27 comments, yet the process thereafter inexplicably came to a halt. Compl., ECF No. 1 [hereinafter Compl.], ¶ 19; Answer, ECF No. 6 [hereinafter Answer], ¶ 19. The CSB has not taken any action in the ensuing 10 years to promulgate reporting regulations. See Def.'s Cross-Mot. for Summ. J., ECF No. 21 [hereinafter Def.'s Mot.], Def.'s Stmt. of Issues, ECF No. 21-1 [hereinafter Def.'s Facts], at 2.
Plaintiffs are four non-profit groups and one individual. Plaintiff Air Alliance Houston ("AAH") is a "non-profit environmental advocacy group that works to reduce air pollution and other health and safety threats," with their efforts focused on the Houston Ship Channel area. Compl. ¶ 8. AAH states that as a result of the CSB's failure to promulgate release reporting requirements, its staff has been directly exposed to and harmed by chemical releases when taking air quality readings after Hurricane Harvey, visiting constituent communities, and leading their daily lives as a result of their proximity to various industrial facilities. See Pls.' Mot. for Summ. J., ECF No. 15 , ¶ 11; see also id. , Ex. A, ECF No. 15-1 [hereinafter Nelson Decl.], ¶ 8. Moreover, AAH asserts that it has expended unnecessary resources to ascertain information that would "conceivably be immediately reported" under the required regulations. Nelson Decl. ¶ 8.
Plaintiff Public Employees for Environmental Responsibility ("PEER") is a nonprofit organization headquartered in Silver Spring, Maryland. Compl. ¶ 9. PEER's mission includes "educating the public and speaking out, as well as defending those who speak out, about environmental ethics and compliance with environmental laws." Id. PEER avers that it works nationwide with scientists, land managers, field specialists, and other environmentally focused professionals, but it does not allege any specific harm to it or its nationwide network as a result of the CSB's inaction. See generally Compl.
Plaintiff Louisiana Bucket Brigade ("LBB") is a nonprofit "environmental health and justice organization" that works with communities that neighbor Louisiana's oil refineries and chemical plants. See id. ¶ 10; see also Pls.' Mot., Ex. B, ECF No. 15-2 [hereinafter Rolfes' Decl.], Attachment A [hereinafter LBB Bylaws]. LLB's membership consists of contributors to the organization, volunteer air samplers, members of local community groups that LBB supports, and the organization's officials. Rolfes Decl. ¶ 4; LBB Bylaws § II.1. LBB asserts that its members live or work near chemical plants, and additionally, that they partake in an annual awareness-raising bicycle ride through contaminated areas, during which members have experienced "burning of the eyes, difficulty breathing, and overall discomfort" from accidental chemical releases. Rolfes' Decl. ¶ 9. Furthermore, LBB asserts that the lack of reporting requirements has made it "exceedingly difficult" to perform one of its functions of providing timely information about accidental releases to its members. Id. ¶ 7.
Plaintiff United Support and Memorial for Workplace Fatalities ("USMWF") is a nonprofit organization that offers "support, guidance, and resources to those affected by preventable work-related deaths or serious injuries," such as accidents within chemical plants. Compl. ¶ 11. USMWF alleges that due to the lack of reporting requirements it has had to expend "additional resources, organizational time, and money" to supply information to families impacted by accidental chemical releases. See Pls.' Mot., Ex. C, ECF No. 15-3, ¶ 7. Moreover, USMWF cites several events where USMWF and the families it serves have been harmed by chemical leaks, which it avers could have been prevented if the CSB had promulgated the required reporting regulations. Id. ¶ 16.
The final Plaintiff, Dr. Neil Carman, Ph.D., is the Clean Air Program Director of the Sierra Club Lone Star Chapter in Texas. See Pl.'s Mot., Ex. D., ECF No. 15-4, ¶¶ 1, 3. Dr. Carman asserts that his ability to provide information to Sierra Club members regarding toxic air pollution and its health effects has been impaired by the CSB's failure to promulgate reporting requirements. See generally ¶¶ 11, 17. Additionally, Dr. Carman cites to several instances where Sierra Club members living in close proximity to chemical accidents suffered injuries, such as exposure to "high levels of toxic air," due to delays in the release of chemical accident information, such as several incidents that occurred when Hurricane Harvey came ashore in August 2017. Id. ¶¶ 10, 13.
On December 7, 2017, Plaintiffs filed a one-count complaint against the CSB seeking declaratory relief and an injunction to compel the CSB to promulgate the reporting regulations. See Compl. Plaintiffs contend that the CSB's failure to implement reporting regulations in the 27 years since Congress amended the CAA violates the prohibition in the Administrative Procedure Act ("APA") against agency action unlawfully withheld or unreasonably delayed. See Compl. ¶ 3 (citing 5 U.S.C. § 706(1) ). Plaintiffs further allege that as public interest organizations "dedicated to ensuring accidental chemical releases are reported," the CSB's unreasonable delay has caused various injuries to the organizations and their members. Id. ¶ 2.
On May 29, 2018, Plaintiffs filed a motion for summary judgment. See Pls.' Mot. The CSB opposed and filed a cross-motion for summary judgment on July 13, 2018, asserting that (1) Plaintiffs lack standing to invoke the court's jurisdiction, and (2) the agency's inaction was not "unreasonably delayed." See Def.'s Cross Mot. for Summ. J., ECF No. 21, Def.'s Mem. in Support of Def.'s Mot for Summ. J., ECF No. 21-1 [hereinafter Def.'s Mem.]. The parties' motions are now ripe for consideration.
As it must, the court first evaluates Plaintiffs' standing, before turning to the merits. See Steel Co. v. Citizens for a Better Environment , 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
Plaintiffs bear the burden of establishing that they have standing to assert their claim. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To establish standing, a plaintiff must make a showing of three elements: (1) injury in fact, (2) causation, and (3) redressability. See id. at 560–61, 112 S.Ct. 2130. These elements together constitute the "irreducible constitutional minimum of standing." Id. at 560, 112 S.Ct. 2130. As here, at the summary judgment stage, mere allegations of standing do not suffice. Rather, Plaintiffs must set forth by affidavit or other evidence specific facts, which for purposes of summary judgment will be taken as true. See id. at 561, 112 S.Ct. 2130. "Statements of fact must be sufficiently specific to rise above the level of ‘conclusory allegations.’ " Swanson Grp. Mfg. LLC v....
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