Citizens for Pennsylvania's Future v. Wheeler
| Decision Date | 26 June 2020 |
| Docket Number | Case No. 19-cv-02004-VC |
| Parties | CITIZENS FOR PENNSYLVANIA'S FUTURE, et al., Plaintiffs, v. Andrew R. WHEELER, Defendant. |
| Court | U.S. District Court — Northern District of California |
James S. Pew, Tosh Sagar, Earthjustice, Washington, DC, Paul Robert Cort, Attorney at Law, San Francisco, CA, for Plaintiffs.
Sydney Alexandra Menees, U.S. Department of Justice, Washington, DC, for Defendant.
Re: Dkt. Nos. 31, 32
This case addresses the provisions of the Clean Air Act that restrict types of air pollution that are particularly hazardous to human health. The Act requires the Environmental Protection Agency to regulate the sources of this pollution in two primary ways. First, the agency must adopt "technology-based standards" to which polluters must adhere. As the name suggests, these standards are designed to ensure that the polluters are using the best available technology to mitigate the hazards created by their activities. And the statute requires EPA to revisit technology-based standards periodically. Second, even after adopting technology-based standards, the agency must assess the risks created by the polluters to determine whether additional restrictions should be imposed. Such additional restrictions are referred to as "risk-based standards."
This case involves EPA's failure to fulfill its statutory obligations to regulate pollution from coke ovens. EPA mostly concedes its failures, so judgment will be entered for the plaintiffs on most issues presented by this case. But one key legal issue remains in dispute: whether the Clean Air Act requires EPA to perform a risk assessment every time it revises its technology-based standards for a hazardous pollution source, or only in connection with its initial adoption of technology-based standards for that pollution source.
The plaintiffs have a reasonable legal argument (as well as a reasonable policy argument) that the statute should be read to impose a mandatory duty on the agency to conduct risk assessments repeatedly rather than merely initially. But having a reasonable argument is not enough in this context. Courts may not interpret statutes as imposing mandatory duties on agencies unless the mandate is clear and unequivocal. The Clean Air Act does not clearly speak to whether repeated risk assessments are mandatory or discretionary; that is to say, the statute could reasonably be interpreted either way. Therefore, the Court may not interpret the statute as imposing a mandatory duty on EPA to revisit its risk-based standards for hazardous pollution sources whenever the agency revises technology-based standards.
In 1970, Congress amended the Clean Air Act to create a system of national emission standards for hazardous air pollutants. See Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676. The cornerstone of that legislative effort was Section 112, which directed the EPA Administrator to publish and, when appropriate, to revise a list of hazardous air pollutants "for which he intends to establish an emission standard." § 112(b)(1)(A), 84 Stat. at 1685. Upon the listing of a hazardous air pollutant, the EPA Administrator was required to promulgate emission standards that would provide an "ample margin of safety to protect the public health" from that pollutant. § 112(b)(1)(B), 84 Stat. at 1685. This margin-of-safety standard was (and is) called a "risk-based" approach because EPA calibrates emission standards to mitigate risks to human health. Sierra Club v. EPA , 353 F.3d 976, 979 (D.C. Cir. 2004).
The regime established by the 1970 amendments was—to put it bluntly—a failure. Two decades later, Congress surveyed EPA's lack of progress in establishing national emission standards, compiling a "record of false starts and failed opportunities." S. Rep. No. 101-228, p. 132 (1989). Congress, not content merely to blame EPA for the problem, acknowledged the shortcomings of its own efforts to craft a workable statutory framework.
For one thing, Section 112 conferred a great deal of discretion on EPA in deciding whether to regulate any particular pollutant. Although that provision required the EPA Administrator to promulgate emission standards within 360 days of the listing of a hazardous air pollutant, no provision of the Act forced him to decide in the first instance whether to add a pollutant to the list. See Clean Air Act § 112(b), 84 Stat. at 1685. The upshot was that the EPA Administrator didn't have to assert authority over a pollutant, but if he did list a pollutant, he then had to finalize emission standards on an "unrealistic" timetable. S. Rep. No. 101-228, at 132. Small wonder that EPA had established standards for only seven hazardous air pollutants in the prior 20 years. See Sierra Club , 353 F.3d at 979.
Section 112's risk-based approach to emission standards had also been difficult to administer in practice. Because people in industrial and urban areas are exposed to higher quantities of hazardous air pollutants, they suffer from higher rates of adverse health outcomes. See S. Rep. No. 101-228, at 132. This inequality with respect to exposure created uncertainty regarding what the appropriate emissions standard should be for a given pollutant. The Senate Report therefore proposed to shift EPA's "principal focus" under Section 112 away from directly regulating pollutants and toward regulating pollution sources to reduce emissions with the "best available control technology." Id. at 133. This target, the Senate hoped, would prove an easier mark for EPA to hit.
With these findings in hand, Congress substantially restructured Section 112. See Clean Air Act Amendments of 1990, Pub. L. No. 101-549, § 301, 104 Stat. 2399, 2531–74. Section 112, as amended, is codified at 42 U.S.C. § 7412. For simplicity's sake, this ruling will refer to the provision by its U.S. Code location—that is, " section 7412"—from this point forward.
The 1990 amendments altered the original 1970 design in several important ways. Rather than wait for EPA to take the initiative, Congress itself identified 189 hazardous air pollutants and directed EPA to revise that initial list on a regular basis. 42 U.S.C. § 7412(b). Congress then reoriented EPA's attention, as the Senate Report suggested, to "sources" of pollution, specifying two categories: "major sources" and "area sources." § 7412(c). The former are defined as having the potential to emit many tons of pollutants, while the latter are defined as "any building, structure, facility, or installation [other than a vehicle] which emits or may emit any air pollutant" at an amount below a major source. §§ 7411(a)(3), 7412(a)(1)–(3). To remedy the perceived failings of the risk-based approach, Congress adopted the Senate Report's proposal of technology-based standards. § 7412(d). And to give teeth to this alternative regime, Congress set a strict statutory timeline for EPA to promulgate technology-based standards for each source category. § 7412(e)(1). Congress nonetheless preserved the risk-based approach to protect against residual risks to public health that might linger after the adoption of technology-based standards. § 7412(f). Taken together, these changes "eliminate[d] much of EPA's discretion" in setting national emission standards. New Jersey v. EPA , 517 F.3d 574, 578 (D.C. Cir. 2008).
The Clean Air Act thus now establishes a "two-phase approach" to emission standards for hazardous air pollutants. Sierra Club , 353 F.3d at 980. At the first phase, EPA promulgates technology-based emission standards requiring the "maximum achievable control technology" for the source category. Id. ; see 42 U.S.C. § 7412(d)(2) (). Section 7412(d) —once you muddle through its jargon—simply means that polluting businesses must adopt the technology, techniques, and practices that their best-performing peers use (or that the source category could practically adopt if the industry as a whole has not installed cost-effective control technology). § 7412(d)(3). Every eight years, EPA must assess whether the technology-based standards should be updated to reflect advances in control technology. § 7412(d)(6).
At the second phase, EPA performs a "risk-based analysis" to assess "whether residual risks remain that warrant more stringent standards" to supplement the technology-based standards. Sierra Club , 353 F.3d at 980 ; see 42 U.S.C. § 7412(f). This backstop—commonly called a "residual risk review"—reflects Congress' concern about "lingering public health risk" not eliminated by "the initial standard" mandating the adoption of maximum achievable control technology. National Association for Surface Finishing v. EPA , 795 F.3d 1, 5 (D.C. Cir. 2015). Congress chose a very specific type and amount of risk that would force EPA to act: If "lifetime excess cancer
risks to the individual most exposed to emissions from a source" exceed one in one million, EPA must promulgate risk-based standards that "provide an ample margin of safety to protect public health." 42 U.S.C. § 7412(f)(2)(A). Although the margin of safety must be "ample," EPA need not lower cancer risks below the one-in-one-million threshold. See
Natural Resources Defense Council v. EPA , 529 F.3d 1077, 1081–82 (D.C. Cir. 2008). The agency may consider, in addition to health outcomes, other relevant factors like cost, feasibility, and environmental impacts. See
This dispute involves coke ovens, which convert coal into coke, a component in steel production. Coke ovens emit multiple substances, including benzene and lead, that are harmful to human health, and coke oven emissions are accordingly listed as a hazardous air pollutant by the Clean Air Act. See 42 U.S.C. § 7412(b)(1). Indeed, the 1990 amendments, perhaps due to the outsized health risks posed by coke...
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(PARTIAL) CLARITY: ELIMINATING THE CONFUSION ABOUT THE REGULATION OF THE "FACT" UAL BASES FOR EXPERT TESTIMONY UNDER THE FEDERAL RULES OF EVIDENCE.
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