Nat'l Parks Conservation Ass'n v. United States Dep't of Interior

• Decision Date: 30 June 2011
• Docket Number: Civil Action No. 11–130(GK).
• Citation: 794 F.Supp.2d 39
• Parties: NATIONAL PARKS CONSERVATION ASSOCIATION, et al., Plaintiffs,v.UNITED STATES DEPARTMENT OF INTERIOR and United States Department of Agriculture, Defendants.
• Court: U.S. District Court — District of Columbia

794 F.Supp.2d 39

NATIONAL PARKS CONSERVATION ASSOCIATION, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF INTERIOR and United States Department of Agriculture, Defendants.

Civil Action No. 11–130(GK).

United States District Court, District of Columbia.

June 30, 2011.

Reed Zars, Reed Zars Attorney at Law, Laramie, WY, for Plaintiffs.William Lisle Miller, William Miller Group, PLLC, Washington, DC, for Defendants.

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiffs, ten non-profit environmental and conservation organizations (together, “NPCA”),¹ bring this suit against Defendants, the United States Department of the Interior (“DOI”) and United States Department of Agriculture (“USDA,” collectively the “Departments”), for declaratory and injunctive relief, pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 706(1) and 555(b). NPCA seeks a declaratory judgment that Defendants have unreasonably delayed responding to its petitions for formal certification of reasonably attributable visibility impairments in various national parks and wilderness areas. Plaintiffs also seek an order requiring the Departments to act on the petitions within 30 days. The Arizona Public Service Company, Central Arizona Water Conservation District, and Salt River Project Agricultural Improvement Power District have intervened on behalf of Defendants. The matter is now before the Court on Defendants' Motion to Dismiss [Dkt. No. 12]. Upon consideration of the Motion, Opposition, and Replies, and the entire record herein, and for the reasons stated below, Defendants' Motion to Dismiss is granted.

I. BACKGROUNDA. Statutory Framework

The Clean Air Act (“CAA”), 42 U.S.C. §§ 7401–7671q (2011), is the principal federal statute designed to “protect and enhance the quality of the Nation's air resources.” Id. § 7401(b)(1). Section 169A addresses visibility impairment in certain national parks and wilderness areas, which are designated as “mandatory class I Federal areas.” ² Id. § 7491(a)(1). Section 169A of the CAA establishes a “national goal” of preventing and remedying visibility impairment in Class I areas resulting from manmade air pollution.³ Id.

Section 169A charges the Environmental Protection Agency (“EPA”) with the responsibility to issue regulations to assure reasonable progress toward the CAA's national visibility goals. Id. § 7491(a)(4). In order to meet these goals, Section 169A instructs EPA, in consultation with the Secretary of the Interior, to require those States it identifies as containing Class I areas “where visibility is an important value,” as well as States from which emissions “may reasonably be anticipated to cause or contribute to impairment of visibility” in Class I areas, to submit State implementation plans (“SIPs”) for safeguarding visibility in protected Class I areas. Id. §§ 7491(a)(2), (b)(2).

EPA must require these SIPs to include “such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress.” Id. § 7491(b)(2). In particular, these SIPs must require the installation and operation of the “best available retrofit technology” (“BART”) ⁴ at certain major stationary sources placed in operation between 1962 and 1977. Id. § 7491(b)(2)(A). The BART provisions apply to specific types of stationary sources that emit more than 250 tons per year of any pollutant. Id. § 7491(g)(7).

The same CAA implementation requirements apply to Indian reservations. ⁵ An Indian tribe, like a State, may submit a tribal implementation plan (“TIP”). Id. § 7410( o ). In instances where the tribe does not assume this responsibility, EPA must promulgate a federal implementation plan (“FIP”) applicable to the reservation. 40 C.F.R. § 49.11.

In addition to EPA and the States, Federal Land Managers (“FMLs”),⁶ such as the Departments in the present case, play a role in this process. In particular, the appropriate FMLs must be consulted regarding any SIP revision intended to meet the requirements of section 169A. 42 U.S.C. § 7491(d).

B. Implementing Regulations

In 1980, EPA issued regulations addressing “reasonably attributable visibility impairment,” meaning “visibility impairment that is caused by the emission of air pollutants from one, or a small number of sources.” 40 C.F.R. § 51.301. In relevant part, these visibility impairment regulations state that “[t]he affected Federal Land Manager may certify to the State, at any time, that there exists reasonably attributable impairment of visibility in any mandatory Class I Federal area.” Id. § 51.302(c)(1). If such a certification is issued more than six months before a SIP or a SIP revision is scheduled to be submitted for EPA approval, the subsequent SIP must include appropriate BART determinations and compliance schedules for each of the offending stationary facilities. See id. § 51.302(c)(2)(iii).

In 1999, EPA issued additional regulations to carry out its statutory mandate under Section 169A. These include the “regional haze program requirements,” id. § 51.308, which are far broader in scope than the visibility impairment regulations contained in Section 51.302. They apply to all “BART-eligible sources” within the State. Id. § 51.308(e). A BART-eligible source is defined as any of a number of specified types of stationary facilities first placed into operation between August 7, 1962 and August 7, 1977, with the potential to emit 250 tons per year or more of any pollutant. Id. § 51.301. In most relevant part, each State must submit a SIP:

containing emission limitations representing BART and schedules for compliance with BART for each BART-eligible source that may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal area, unless the State demonstrates that an emissions trading program or other alternative will achieve greater reasonable progress toward natural visibility conditions.

Id. § 51.308(e). Under EPA's regional haze regulations, “[a] single source that is responsible for a 1.0 deciview change or more should be considered to ‘cause’ visibility impairment” ⁷ and the threshold for “determining whether a source ‘contributes' to visibility impairment should not be higher than 0.5 deciviews.” Id. pt. 51, App. Y (2005).C. Factual and Procedural Background ⁸

Plaintiffs bring this case based on three administrative petitions they submitted to the Defendants, who are the FMLs for the lands relevant to Plaintiffs' petitions. The first petition, dated May 5, 2009, requested that DOI issue a certification that the visibility in Class I areas within its jurisdiction is impaired and that the impairment is reasonably attributable to emissions from the Navajo Generating Station in Arizona.⁹ The second petition, dated June 24, 2009, requested a similar certification from DOI with respect to emissions from the Centralia Power Plant (“Centralia”) in Washington State.¹⁰ The third petition, dated February 16, 2010, was sent to both Departments and requested that each Department issue certifications with respect to emissions from the Four Corners Power Plant (“Four Corners”) in New Mexico.¹¹ If issued, these certifications would trigger the requirement that subsequent SIPs include BART determinations and compliance schedules for the power plants in question. See 40 C.F.R. § 51.302(c)(2)(iii).

On January 20, 2011, in the absence of a response from Defendants regarding their petitions, Plaintiffs filed this Complaint [Dkt. No. 1], alleging that Defendants unreasonably delayed acting on their petitions and seeking an order requiring Defendants to respond to them.

On March 8, 2011, DOI sent a letter in response to Plaintiffs' petitions. Defs.' Mot. Ex. 4. The letter noted that all the petitioned sources have already been determined by the State or EPA to cause or contribute to visibility impairment, and therefore are subject to BART determinations under the regional haze rule. The letter also outlined the actions being taken with regard to each petitioned source. With regard to the first petition, the letter explained that although EPA's “BART determination for Navajo Generating Station has been delayed,” EPA is working on the development of a proposed rule to determine BART for the Navajo Generating Station. Id. Ex. 4, at 1. With regard to the second petition, Defendants indicated that the State of Washington has already proposed regional haze SIPs and BART determinations for Centralia. With regard to the third petition, the letter stated that EPA has already proposed a FIP that would establish BART for Four Corners.

The letter further stated that, in light of these proceedings, DOI would “address BART through the existing regional haze BART determinations prior to taking any additional action.” Id. The letter explained that DOI reserved the right to certify reasonably attributable visibility impairment if it found that the proposed BART determinations did not adequately mitigate the source's visibility impact and such certification would enhance the potential for mitigation. It concluded: “Until such time, however, this letter fully and finally responds to all of the referenced petitions.” Id. Ex. 4, at 2.

On March 17, 2011, USDA also sent a letter to Plaintiffs. Id. Ex. 5. The letter stated that the National Forest Service is actively participating in EPA's development of an FIP to address BART at the Four Corners Plant. Therefore, USDA “is deferring action on the petition until EPA makes its final BART determination.” Id. Ex. 5, at 1.

Defendants filed their Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(1), on April 6, 2011. Plaintiffs filed their Opposition [Dkt. No. 19] on May 4, 2011. Finally, both Defendants and Intervenors filed their Replies [Dkt. Nos. 24 and 25] on May 20, 2011.

II. STANDARD OF REVIEW

Under Rule 12(b)(1), Plaintiffs bear the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction. See Shuler...