In re Ozone Designation Litig.

• Citation: 286 F.Supp.3d 1082
• Decision Date: 12 March 2018
• Docket Number: Case No. 17–cv–06900–HSG
• Parties: IN RE OZONE DESIGNATION LITIGATION
• Court: U.S. District Court — Northern District of California

286 F.Supp.3d 1082

IN RE OZONE DESIGNATION LITIGATION

Case No. 17–cv–06900–HSG

United States District Court, N.D. California.

Signed March 12, 2018

ORDER GRANTING PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT

Re: Dkt. No. 11;

Dkt. No. 43, Case No. 4:17-cv-06936-HSG

HAYWOOD S. GILLIAM, JR., United States District Judge

On December 4, 2017, a coalition of environmental and health organizations ("NGO Plaintiffs") filed suit against Scott Pruitt in his official capacity as the Administrator of the United States Environmental Protection Agency ("EPA"). See Dkt. No. 1 ("NGO Compl."). That same day, NGO Plaintiffs filed a motion for summary judgment. See Dkt. No. 11 ("NGO Mot."). On December 15, 2017, the Court related that action to California v. Pruitt , Case No. 4:17–cv–06936–HSG. In California v. Pruitt , fifteen states ("State Plaintiffs") asserted virtually identical claims against the Administrator and EPA (collectively, "Defendants"). See Dkt. No. 1 ("State Compl."), Case No. 4:17–cv–06936–HSG.

On December 29, 2017, State Plaintiffs filed a motion for summary judgment. Dkt. No. 43 ("State Mot."), Case No. 4:17–cv–06936–HSG. On January 19, 2018, Defendants opposed the motions submitted by NGO and State Plaintiffs (collectively, "Plaintiffs"). Dkt. No. 40 ("Opp."). On January 23, 2018, the Court granted State Plaintiffs' request to consolidate the actions.

See Dkt. No. 41. NGO Plaintiffs replied to Defendants' opposition on January 26, 2018. Dkt. No. 42 ("NGO Reply"). State Plaintiffs replied on January 31, 2018. Dkt. No. 43 ("State Reply"). On February 22, 2018, the Court heard argument on the motions. See Dkt. No. 63.

After carefully considering the parties' arguments, the Court GRANTS Plaintiffs' motions for summary judgment. There is no dispute as to liability: Defendants admit that the Administrator violated his nondiscretionary duty under the Clean Air Act ("CAA") to promulgate by October 1, 2017 initial area air quality designations under the 2015 national ambient air quality standards ("standards" or "NAAQS") for ozone. See NGO Mot. at 13; Opp. at 2. The remaining inquiry pertains to the appropriate equitable remedy, which the Court crafts in its discretion.¹

I. SUMMARY JUDGMENT

A. LEGAL STANDARD

Summary judgment is proper when a "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is "genuine" if there is evidence in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. The Court views the inferences reasonably drawn from the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and "may not weigh the evidence or make credibility determinations," Freeman v. Arpaio , 125 F.3d 732, 735 (9th Cir. 1997), overruled on other grounds by Shakur v. Schriro , 514 F.3d 878, 884–85 (9th Cir. 2008).

The moving party bears both the ultimate burden of persuasion and the initial burden of producing those portions of the pleadings, discovery, and affidavits that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will not bear the burden of proof on an issue at trial, it "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos. , 210 F.3d 1099, 1102 (9th Cir. 2000). Where the moving party will bear the burden of proof on an issue at trial, it must also show that no reasonable trier of fact could not find in its favor. Celotex Corp. , 477 U.S. at 325, 106 S.Ct. 2548. In either case, the movant "may not require the nonmoving party to produce evidence supporting its claim or defense simply by saying that the nonmoving party has no such evidence." Nissan Fire & Marine Ins. Co. , 210 F.3d at 1105. "If a moving party fails to carry its initial burden of production, the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Id. at 1102–03.

"If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense." Id. at 1103. In doing so, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts."

Matsushita Elec. Indus. Co. , 475 U.S. at 586, 106 S.Ct. 1348. A nonmoving party must also "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan , 91 F.3d 1275, 1279 (9th Cir. 1996). If a nonmoving party fails to produce evidence that supports its claim or defense, courts enter summary judgment in favor of the movant. Celotex Corp. , 477 U.S. at 323, 106 S.Ct. 2548.

B. DISCUSSION

For purposes of liability, the CAA's operative provision states:

Upon promulgation or revision of a national ambient air quality standard, the Administrator shall promulgate the designations of all areas (or portions thereof) submitted under subparagraph (A) as expeditiously as practicable, but in no case later than 2 years from the date of promulgation or the new or revised national ambient air quality standard. Such period may be extended for up to one year in the event the Administrator has insufficient information to promulgate the designations.

42 U.S.C. § 7407(d)(1)(B)(i). The parties agree that EPA triggered the statutory compliance period when it last revised the ozone NAAQS on October 1, 2015. See id. ; NGO Mot. at 5, 7. States were then obligated to submit to EPA recommended area designations within one year. See 42 U.S.C. § 7407(d)(1)(A). EPA can modify a state's recommended designation, but must first provide the state with 120 days' notice. Id. § 7407(d)(1)(B)(ii). If the state's governor does not then submit the modified designation, "the Administrator shall promulgate the designation that the Administrator deems appropriate for any area (or portion thereof) not designated by the state." Id. If the state subsequently submits a different designation, the Administrator "shall act on those designations in accordance with the procedures ... relating to redesignation[.]" Id. § 7407(d)(1)(B)(iii). As to redesignation,

[T]he Administrator may at any time notify the Governor of any State that available information indicates that the designation of any area or portion of an area within the State or interstate area should be revised. In issuing such notification, which shall be public, to the Governor, the Administrator shall provide such information as the Administrator may have available explaining the basis for the notice.

Id. § 7407(d)(3)(A). Redesignation determinations are made "on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate[.]" See id. § 7407(d)(3)(A), (D). The CAA sets forth discrete compliance deadlines for redesignation. Id. § 7407(d)(3)(B)–(C).

In addition, a state can independently commence the redesignation process. See id. § 7407(d)(3)(D) ("The Governor of any State may, on the Governor's own motion, submit a revised designation of any area or portion within that state."). Should a state make a request for revision, then "the Administrator shall approve or deny such redesignation within 18 months of receipt of a complete State redesignation submittal." Id.

Defendants do not dispute that the Administrator violated section 7407(d)(1)(B)(i) by failing to promulgate by October 1, 2017 initial area air quality designations under the 2015 ozone NAAQS for all areas of the country. See Opp. at 2. Thus, summary judgment in favor of Plaintiffs is appropriate. See Sierra Club v. Johnson , 444 F.Supp.2d 46, 52 (D.D.C. 2006) ("Because defendant does not contest the issue of liability, the entry of summary judgment is appropriate, and it remains only for the Court to fashion an appropriate equitable remedy."); Am. Lung Ass'n v. Browner , 884 F.Supp. 345, 346 (D. Ariz. 1994) ("Summary judgment is appropriate where, as here, it remains only for the Court, acting in its discretion, to fashion an equitable remedy.").

II. REMEDY

A. LEGAL STANDARD

The Court has "broad latitude" to fashion an equitable remedy other than injunctive relief. Alaska Ctr. for Env't v. Browner , 20 F.3d 981, 986 (9th Cir. 1994). Defendants carry "a heavy burden to show that compliance with statutory mandated deadlines is impossible or infeasible." Am. Lung Ass'n , 884 F.Supp. at 347 ; see Delaney v. E.P.A. , 898 F.2d 687, 691 (9th Cir. 1990) ("When Congress has explicitly set an absolute deadline, congressional intent is clear ... The EPA cannot extract leeway from a statute that Congress explicitly intended to be strict."). It is the Court's role to "separate justifications grounded in the purposes of the [statute] from the footdragging efforts of a delinquent agency." Nat. Res. Def. Council, Inc. v. Train , 510 F.2d 692, 713 (D.C. Cir. 1974).

In Train , the D.C. Circuit identified two categories of constraints that can excuse untimely agency action. Id. The first set of constraints comprise "budgetary commitments and manpower demands" required to meet a deadline, and any such demands must be "beyond the agency's capacity or ... unduly jeopardize the implementation of other essential programs." Id. at 712. The second set of constraints are "methodological" limitations that prevent an agency from giving "meaningful consideration to the technical...