Maryland v. Pruitt

• Decision Date: 12 June 2018
• Docket Number: CIVIL NO. JKB–17–2873, CIVIL NO. JKB–17–2939
• Citation: 320 F.Supp.3d 722
• Parties: State of MARYLAND, Plaintiff, v. Scott PRUITT, et al., Defendants. Chesapeake Bay Foundation, Inc., et al., Plaintiffs, v. Scott Pruitt, et al., Defendants.
• Court: U.S. District Court — District of Maryland

320 F.Supp.3d 722

State of MARYLAND, Plaintiff,

v.Scott PRUITT, et al., Defendants.

Chesapeake Bay Foundation, Inc., et al., Plaintiffs,

v.Scott Pruitt, et al., Defendants.

CIVIL NO. JKB–17–2873

CIVIL NO. JKB–17–2939

United States District Court, D. Maryland.

Signed June 12, 2018

Filed June 13, 2018

Michael F. Strande, Maryland Office of the Attorney General, Baltimore, MD, Jon Alan Mueller, Chesapeake Bay Foundation Inc., Annapolis, MD, for Plaintiffs.

David Jay Kaplan, United States Department of Justice, Sonya Shea, Washington, DC, for Defendants.

MEMORANDUM

James K. Bredar, Chief Judge

The State of Maryland filed suit against Scott Pruitt, in his official capacity as Administrator of the United States Environmental Protection Agency ("EPA"), and the EPA ("Defendants"), seeking injunctive relief related to Defendants' failure to perform a mandatory duty under the Clean Air Act, 42 U.S.C. § 7401 et seq. ("CAA"). The case was consolidated with a similar action filed against Defendants by Chesapeake Bay Foundation, Inc., Adirondack Council, Chesapeake Climate Action Network, Environmental Defense Fund, Environmental Integrity Project, Physicians for Social Responsibility, Chesapeake, Inc., and Sierra Club (collectively, with Maryland, "Plaintiffs"). (Order, ECF No. 9; Order, Case No. JKB–17–2939, ECF No. 46.) The cases involve Defendants' failure to respond to and act on a petition filed by Maryland pursuant to section 126(b) of the CAA, 42 U.S.C. § 7426(b). Now pending before the Court is Plaintiffs' Motion for Summary Judgment (ECF No. 15) and Defendants' Cross–Motion on Remedy (ECF No. 26). The issues have been briefed (ECF Nos. 16, 27, 28, and 33) and no hearing is required, see Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, Plaintiffs' Motion will be GRANTED IN PART and DENIED IN PART and Defendants' Cross–Motion will be DENIED. Pursuant to its equitable powers, the Court will enter an order requiring Defendants to take final action either making Maryland's requested finding or denying the section 126(b) petition on or before September 15, 2018.

I. Background

The parties agree on many of the relevant facts, including the fundamental requirements of the CAA that are at issue here. The CAA requires states to regulate sources of air pollution within their boundaries to meet National Ambient Air Quality Standards ("NAAQS") established by EPA. Any area that does not meet NAAQS is designated a "nonattainment" area and those areas that do meet NAAQS are designated "attainment" areas. 42 U.S.C. § 7407(d). States also must develop and submit to EPA State Implementation Plans ("SIPs")—comprehensive emission control plans that specify how the state will achieve and maintain NAAQS within the state. Id. §§ 7407(a), 7410(a)(1).

In addition to achieving attainment within their boundaries, states also are obligated to ensure that sources of air pollution within their boundaries do not "contribute significantly" to nonattainment in other states. Id. § 7410(a)(2)(D)(i)(I). In other words, states must account for the fact that source emissions do not respect artificial boundaries and do not simply stop at state lines. Rather, their impact may be felt hundreds of miles away in multiple other states. This section of the CAA is commonly referred to as the "good neighbor" provision. Not surprisingly, the Act provides recourse for those states that believe their neighbors are not fulfilling their obligations.

Section 126 of the CAA provides that,

Any State or political subdivision may petition the Administrator for a finding that any major source or group of stationary sources emits or would emit any air pollutant in violation of the prohibition of section 7410(a)(2)(D)(ii) of this title or this section [i.e., the "good neighbor" provision]. Within 60 days after receipt of any petition under this subsection and after public hearing, the Administrator shall make such a finding or deny the petition .

42 U.S.C. § 7426(b) (emphasis added). If the Administrator makes a finding pursuant to § 7426(b), it is a violation of the Act "for any major existing source to operate more than three months after such finding has been made with respect to it." Id. § 7426(c). Alternatively, the Administrator may permit a source to continue operating past the three-month period pursuant to a schedule designed to achieve compliance through incremental progress. Id.

The CAA also provides that any person, including a State, "may commence a civil action ... 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." 42 U.S.C. § 7604(a)(2).

On November 26, 2016, Maryland filed a § 126(b) petition with EPA, requesting that the Administrator make a finding that 36 electric generating units ("EGUs") located in five different states (Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia) are violating the good neighbor provision of the CAA. (Maryland § 126(b) Petition, ECF No. 1–1.) Specifically, the petition contends that the 36 EGUs are emitting nitrogen oxides in a manner that significantly contributes to Maryland's nonattainment of the 2008 Ozone NAAQS. (Id. ) On January 3, 2017, Defendants granted themselves a six-month extension to respond to the petition pursuant to 42 U.S.C. § 7607(d)(I0). Defendants, however, did not hold a public hearing or otherwise act on Maryland's petition within the new deadline.

On July 20, 2017, Maryland provided notice to Defendants that it intended to file suit against them pursuant to the CAA's citizen suit provision, 42 U.S.C. § 7604(a)(2). The plaintiffs in Case No. 17–2939 likewise provided notice to Defendants of their intent to file suit based on the Administrator's failure to perform a nondiscretionary duty. After waiting the requisite sixty days following their notice to Defendants, see 42 U.S.C. § 7604(b)(2), Plaintiffs filed the instant consolidated civil actions.

II. Legal Standard

A party seeking summary judgment must show "that there is no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). If a party carries this burden, then the court will award summary judgment unless the opposing party can identify specific facts, beyond the allegations or denials in the pleadings, that show a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). The court will assess the merits of the motion, and any responses, viewing all facts and reasonable inferences in the light most favorable to the party opposing the motion. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Iko v. Shreve , 535 F.3d 225, 230 (4th Cir. 2008).

III. Analysis

Defendants concede at the outset that they are required by the CAA to either grant or deny a petition like the one filed by Maryland within a specified time period. Defendants also concede that they failed to carry out this nondiscretionary duty. The parties also agree that the Court has jurisdiction "to order the Administrator to perform [a nondiscretionary] duty."¹

42 U.S.C. § 7604(a) ; see, e.g. , Sierra Club v. Johnson , 444 F.Supp.2d 46, 52 (D.D.C. 2006). The Court agrees. Accordingly, Plaintiffs are entitled to summary judgment and an injunction compelling Defendant Pruitt to perform his nondiscretionary duty under the CAA to hold a public hearing and grant or deny Maryland's § 126 petition. See Am. Lung Ass'n v. Browner , 884 F.Supp. 345, 346 (D. Ariz. 1994) (finding summary judgment appropriate "where, as here, it remains only for the Court, acting in its discretion, to fashion an equitable remedy"); Sierra Club v. Ruckelshaus , 602 F.Supp. 892, 898 n.9 (N.D. Cal. 1984) (granting summary judgment and rejecting EPA's argument that dispute over appropriate equitable remedy for its breach of mandatory statutory duty presents material question of fact).

However, one issue still remains to be resolved: By when must the Administrator take final action on the petition? Although Defendants do not contest their liability, they do object to the remedy sought by Plaintiffs. Plaintiffs request that the Court order Defendants to hold a public hearing and either grant or deny Maryland's petition within sixty days of the Court's order. Defendants, on the other hand, contend that it is infeasible for them to issue a final decision on Maryland's petition any sooner than December 31, 2018. Defendants, however, commit to taking final action on or before that date.

Where, as here, an agency has failed to meet the statutory deadline for a nondiscretionary act, "[a] court appropriately may decline to impose an immediate deadline ... and may afford an agency additional time for compliance." Johnson , 444 F.Supp.2d at 52. "[T]he court may exercise its equity powers ‘to set enforceable deadlines both of an ultimate and an intermediate nature [.]’ " Id. (alteration in original) (quoting NRDC v. Train , 510 F.2d 692, 705 (D.C. Cir. 1974) ). Indeed, "[t]he sound discretion of an equity court does not embrace enforcement through contempt of a party's duty to comply with an order that calls him ‘to do an impossibility.’ " Train , 510 F.2d at 713 (quoting Maggio v. Zeitz , 333 U.S. 56, 59, 68 S.Ct. 401, 92 L.Ed. 476 (1948) ). Moreover, "it would be inappropriate to set an infeasible schedule in order to punish a delinquent agency." Sierra Club v. Thomas , 658 F.Supp. 165, 172 (N.D. Cal. 1987). Put simply, the Court should not and will not order Defendants to do that which is impossible or infeasible

The Court, however, must not relieve Defendants of their mandatory duty lightly. See Train , 510 F.2d at 713 ("An equity court can never exclude claims of inability to render absolute performance, but it must scrutinize such claims carefully since...