Citizens for a Better Environment v. Costle, 80 C 0003.

• Decision Date: 16 May 1985
• Docket Number: No. 80 C 0003.,80 C 0003.
• Citation: 610 F. Supp. 106
• Parties: CITIZENS FOR A BETTER ENVIRONMENT, etc., and Martin Wojcik, Plaintiffs, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, et al., Defendant. INLAND STEEL COMPANY, et al., Plaintiffs, v. Douglas M. COSTLE, etc., et al., Defendants. PEOPLE OF the STATE OF ILLINOIS, et al., Plaintiffs, v. Douglas M. COSTLE, etc., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

610 F. Supp. 106

CITIZENS FOR A BETTER ENVIRONMENT, etc., and Martin Wojcik, Plaintiffs, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, et al., Defendant.

INLAND STEEL COMPANY, et al., Plaintiffs, v. Douglas M. COSTLE, etc., et al., Defendants.

PEOPLE OF the STATE OF ILLINOIS, et al., Plaintiffs, v. Douglas M. COSTLE, etc., et al., Defendants.

No. 80 C 0003.

United States District Court, N.D. Illinois, E.D.

May 16, 1985.

Robert E. Yuhnke, Boulder, Colo., for plaintiffs.

Scott Slaughter, Richard Bozof and F. Henry Habicht III, Dept. of Justice, Washington, D.C., for defendants.

John M. Cannon and Susan W. Wanat, Mid-America Legal Foundation, Chicago, Ill., for intervenor defendants.

MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiffs, Citizens for a Better Environment and Martin Wojcik, a citizen and resident of Illinois (hereinafter collectively referred to as "CBE"), have filed this action under section 304(a)(2) of the Clean Air Act, 42 U.S.C. § 7604(a)(2), against defendants William D. Ruckelshaus, the Administrator of the United States Environmental Protection Agency ("EPA") and Valdas V. Adamkus, EPA's Regional Administrator for Region V. CBE has moved for clarification and for reconsideration of this court's memorandum and order of December 27, 1983, dismissing count I for lack of subject matter jurisdiction. In count I CBE claimed, inter alia, that the EPA failed to perform a nondiscretionary duty under the Clean Air Act (the "Act") by failing to promulgate regulations to remedy a deficiency the EPA found in Illinois' implementation plan. CBE now seeks an order compelling the EPA to perform its non-discretionary duty pursuant to section 110(c)(1)(B) of the Act, 42 U.S.C. § 7410(c)(1)(B).

I. BACKGROUND

A. Statutory Background

The primary goal of the Clean Air Act is to protect the public's health. Clean Air Act § 101(b)(1), 42 U.S.C. § 7401(b)(1). The Act places the responsibility for achieving this goal on both federal and state governments. Due to the states' failure to adequately respond to the problem of air pollution, however, Congress has increasingly placed greater reliance on the federal government to ensure the states' compliance. See, e.g., Union Electric Co. v. EPA, 427 U.S. 246, 249, 96 S.Ct. 2518, 2522, 49 L.Ed.2d 474, reh'g denied, 429 U.S. 873, 97 S.Ct. 189, 50 L.Ed.2d 154 (1976).

Accordingly, the Act required the EPA to adopt "national primary ambient air quality standards," and the states to adopt "state implementation plans" ("SIPs") designed to attain those standards by 1975. Nevertheless, many states failed to attain those standards, see 123 Cong.Rec. 18015 (1977) (statement of Act's chief sponsor, Senator Muskie), and so Congress amended the Act in 1977. See Clean Air Act Amendments of 1977, Pub.L. No. 95-95, 91 Stat. 685 (1977). The 1977 Amendments added a new section, part D, for those states with "non-attainment areas." Part D requires each state to revise its SIP for these non-attainment areas and section 172 of part D specifies the provisions required in the revised plans. Clean Air Act § 172(a)(1), (b)(1)-(10), 42 U.S.C. § 7502(a)(1), (b)(1)-(10). Section 172(a)(1) requires that the revised plan "provide for attainment" of the national primary standards "not later than December 31, 1982," 42 U.S.C. § 7502(a)(1), and section 110(a)(2)(I) subjects states to a construction ban for failing to revise their SIPs. 42 U.S.C. § 7410(a)(2)(I). Moreover, section 110(c)(1)(A-B) provides that

"the Administrator shall . . . promptly prepare and publish proposed regulations setting forth an implementation plan, or any portion thereof, for a State if—

(A) the State fails to submit an implementation plan which meets the requirements of this section, or

(B) the plan, or any portion thereof ... is determined by the Administrator not to be in accordance with the requirements of this section....

42 U.S.C. § 7410(c)(1)(A-B) (emphasis added).

Judicial review of the Administrator's actions (e.g., to adopt an SIP, to promulgate federal regulations, etc.), must be had in the courts of appeals. Clean Air Act § 307(b)(1), 42 U.S.C. § 7607(b)(1). Section 307(b)(1) provides, in pertinent part, that "review of the Administrator's action in approving or promulgating any implementation plan ... or any other final action of the Administrator ... may be filed only in the United States Court of Appeals for the appropriate circuit." 42 U.S.C. § 7607(b)(1). To remedy any action which after review the Court of Appeals finds arbitrary and capricious, section 307(d)(9) provides only that "the court may reverse any such action...."¹ 42 U.S.C. § 7607(d)(9).

An order compelling the Administrator to perform a non-discretionary duty under the Act, however, must be had in the district courts. Clean Air Act § 304(a), 42 U.S.C. § 7604(a). Section 304(a) provides, in pertinent part, that

any person may commence a civil action ... (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.... The district courts shall have jurisdiction ... to ... order the Administrator to perform such act or duty....²

42 U.S.C. § 7604(a). See e.g., Council of Commuter Organizations v. Metropolitan Transportation Authority, 683 F.2d 663, 665 (2d Cir.1982).

B. Factual Background

Illinois was one of those states which failed to obtain the national primary standards, despite the existence of its approved SIP. Thus, pursuant to section 172, Illinois submitted a draft version of its revised plan on April 3, 1979, three months after the statutorily-mandated submittal date. Section 110(c)(1) requires federal rulemaking within six months of the submission if the Administrator finds that the SIP, or any portion of it, fails to satisfy the Act's requirements. 42 U.S.C. § 7410(c)(1).

By January 8, 1980, the EPA had made no final decision regarding the sufficiency of Illinois' SIP, nor had the EPA proposed federal rulemaking. CBE thus filed this action in federal district court and, in count I, sought to compel federal rulemaking under section 304(a)(2), 42 U.S.C. § 7604(a)(2). The EPA moved to dismiss CBE's complaint for lack of subject matter jurisdiction, but that motion was denied in Citizens for a Better Environment v. Costle, 515 F.Supp. 264 (N.D.Ill.1981) ("CBE I"). In CBE I this court found that "the states and the public are entitled to prompt EPA rulemaking to remedy any nonconforming provisions of the states' submissions. And ... the duty to promulgate promptly federal rules is not discretionary under section 110(c)(1) and may be enforced pursuant to a `citizens suit' in district court." CBE I at 277.

Subsequent to this court's decision in CBE I, the EPA published a notice of final rulemaking with respect to the Illinois SIP. 46 Fed.Reg. 44172, et seq. (Sept. 3, 1981). In that notice, the EPA approved, conditionally approved and disapproved specific portions of the SIP. The importance of that rulemaking for purposes of the instant action lies in the EPA's disapproval of the regulation establishing a limitation on the emission of particulate matter from byproduct coke plant pushing operations. 46 Fed.Reg. 44178 (Sept. 3, 1981) (codified at 40 C.F.R. § 52.725(b)(2) (1984) ).

Following the EPA's September 1981 action, CBE filed a petition for review of the EPA's decision to conditionally approve the Illinois SIP in the Seventh Circuit Court of Appeals, pursuant to section 307. 42 U.S.C. § 7607. CBE did not, however, seek review of the EPA's decision to disapprove Illinois' regulation controlling emissions from coke plant pushing operations. Instead, CBE sought an order from this court, under section 304, compelling the Administrator to perform his non-discretionary duty to propose federal rulemaking for those portions of Illinois' SIP which the Administrator disapproved. Moreover, CBE challenged, in this court, EPA's use of "conditional approvals," claiming that this was merely a device by which the EPA could avoid its responsibilities under the Act.

On December 27, 1983, this court dismissed count I in Citizens for a Better Environment v. Costle, No. 80 C 0003 (N.D.Ill. Dec. 27, 1983) ("CBE II"). In CBE II this court was concerned with the possibility of disrupting the administrative process. CBE II, at 8. The EPA had conditionally approved Illinois' SIP by determining that many provisions of the SIP did not conform to the Act's requirements. Thus, the EPA had not approved or disapproved of these provisions. Although the Act does not specifically provide for conditional approvals, this court determined that review of the propriety of such action was properly before the Seventh Circuit Court of Appeals. Consequently, this court declined to exercise its questionable jurisdiction to order the EPA to promulgate federal regulations when it was unclear whether the EPA actually had a non-discretionary duty to act in that situation. Had the EPA disapproved the provisions, its non-discretionary duty to begin federal rulemaking would have been clear. The EPA had merely conditionally approved much of the SIP, however, and this court therefore dismissed count I for lack of subject matter jurisdiction.

Although the EPA had specifically disapproved several Illinois regulations as well, it had subsequently proposed to reverse this action. 47 Fed.Reg. 53000 et seq. (Nov. 24, 1982). At the time CBE II was decided, no final action had been taken regarding that proposed rulemaking. CBE II, at 7. This court correctly decided not to interfere in the ongoing administrative process. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967); Bethlehem Steel Corp. v. U.S.E.P.A., 536 F.2d 156, 161 (7th Cir.1976). An order compelling the Administrator to promulgate federal regulations would have preempted the Administrator's discretionary...