New Jersey v. Wheeler

• Decision Date: 28 July 2020
• Docket Number: 20-cv-1425 (JGK)
• Citation: 475 F.Supp.3d 308
• Parties: State of NEW JERSEY et al., Plaintiffs, v. Andrew R. WHEELER et al., Defendants.
• Court: U.S. District Court — Southern District of New York

475 F.Supp.3d 308

State of NEW JERSEY et al., Plaintiffs,

v.Andrew R. WHEELER et al., Defendants.

20-cv-1425 (JGK)

United States District Court, S.D. New York.

Signed July 28, 2020

Robert J. Kinney, Office of the Attorney General, Aaron Kleinbaum, Division of Law, Trenton, NJ, for Plaintiff State of New Jersey.

Jill Nancy Lacedonia, Office of the Attorney General, State of Connecticut, Hartford, CT, for Plaintiff State Of Connecticut.

Valerie Satterfield Edge, Delaware Department of Justice, Dover, DE, for Plaintiff State of Delaware.

Claiborne Ellis Walthall, Morgan Anna Costello, NYS Office of Attorney General Environmental Protection, Albany, NY, for Plaintiff State of New York.

I. Andrew Goldberg, MA Attorney General's Office, Boston, MA, for Plaintiff Commonwealth of Massachusetts.

Nathan Michael Potter Taylor, New York City Law Department, New York, NY, for Plaintiff City of New York.

Lucas Estlund Issacharoff, United States Attorney's Office Southern District Of New York, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiffs—the States of New Jersey, Connecticut, Delaware, and New York; the Commonwealth of Massachusetts; and the City of New York—brought this action against the Environmental Protection Agency and the Administrator of the Environmental Protection Agency, Andrew R. Wheeler (collectively, the "EPA"). The plaintiffs claim that the EPA has failed to fulfill a nondiscretionary duty under the Clean Air Act (the "CAA" or the "Act"), namely to promulgate, pursuant to Section 110(c)(1) of the Act, 42 U.S.C. § 7410(c)(1), Federal implementation plans for the 2008 ozone National Ambient Air Quality Standards ("NAAQS") that fully address the requirements of the "Good Neighbor Provision" of the Clean Air Act, 42 U.S.C. § 7410(a)(2)(D)(i)(I), with respect to sources of ozone pollution in Illinois, Indiana, Michigan, Ohio, Pennsylvania, Virginia and West Virginia (the "Defaulting States" or the "Upwind States"). The parties have filed cross motions for summary judgment. The plaintiffs request that the Court enter an order setting a schedule for the EPA to come into compliance with the Act. The EPA argues that the Court lacks jurisdiction to hear this case, but that in any event the schedule requested by the plaintiffs is impossible for the EPA to comply with.

For the reasons that follow, the plaintiff's motion for summary judgment is granted as to the EPA's liability; the EPA's motion for summary judgment is denied; and the Court will impose a schedule on the EPA to promulgate a complete-remedy rulemaking addressing the EPA's outstanding statutory obligations by March 15, 2021.

I.

The standard for granting summary judgment is well established. "The Court shall grant summary judgment if the 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) ; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The substantive law governing the case will identify those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993) ; see also Scotto v. Almenas, 143 F.3d 105, 114–15 (2d Cir. 1998). Where there are cross-motions for summary judgment, the Court must assess each of the motions and determine whether either party is entitled to judgment as a matter of law. See Admiral Indem. Co. v. Travelers Cas. & Sur. Co. of Am., 881 F. Supp. 2d 570, 574 (S.D.N.Y. 2012).

Claims that the EPA failed to fulfill a nondiscretionary duty under the Act are typically resolved on summary judgment. See Sierra Club v. Johnson, 444 F. Supp. 2d 46, 52 (D.D.C. 2006) (collecting cases).

II.

A.

Under the Clean Air Act, 42 U.S.C. §§ 7401 - 7671q, the EPA must establish NAAQS that "are requisite to protect the public health" for certain pollutants. 42 U.S.C. § 7409(b). As relevant to this litigation, in March 2008, the EPA promulgated a revised NAAQS for ozone¹ , which principally set a standard for ozone of 75 parts per billion, as measured over an eight-hour period. See National Ambient Air Quality Standards for Ozone, 73 Fed. Reg. 16,436, 16,436 (Mar. 27, 2008) (the "2008 ozone NAAQS"). The promulgation of the 2008 ozone NAAQS triggered the States’ duty under the Act to submit State implementation plans ("SIPs") to the EPA by March 12, 2011. 42 U.S.C. § 7410(a)(1) ; Idsal Decl. ¶ 50. Among other things, a SIP must address the State's obligations under the Good Neighbor Provision of the Act, which requires a SIP to "contain adequate provisions (i) prohibiting, ... any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard[.]" 42 U.S.C. § 7410(a)(2)(D)(i)(I). If a state fails to file the required SIP, or the EPA determines that the SIP is insufficient, the EPA is required to promulgate a federal implementation plan ("FIP") within two years of the date that the EPA makes that determination. 42 U.S.C. § 7410(c)(1).

In order to measure compliance with the NAAQS, "the EPA, in coordination with state governments, divides the country geographically into ‘air quality control regions.’ " New York v. EPA, ––– F.3d ––––, ––––, 2020 WL 3967838, at *1 (D.C. Cir. July 14, 2020) (citation omitted) (quoting 42 U.S.C. § 7407 ). "While some air quality control regions lie within a single state, others encompass portions of two or more states." Id. (internal quotation marks and alterations omitted). Under the Act, air quality control regions are classified under a system of degrees of nonattainment, which dictates the deadline by which the air quality control region is required to attain the NAAQS. See id. at ––––, 2020 WL 3967838 at *2 (citing 42 U.S.C. § 7511(a)(1), (b)(1), (b)(2) ). These nonattainment classifications are: marginal; moderate; serious; severe; and extreme. 42 U.S.C. § 7511(a)(1). Areas in "serious" nonattainment of the 2008 ozone NAAQS, like the New York-Northern New Jersey-Long Island, New York-New Jersey-Connecticut Area (the "New York Metropolitan Area") that is one of the primary areas of focus in this litigation, has a statutory attainment deadline of July 20, 2021. See Determination of Attainment and Reclassification for 2008 Ozone NAAQS, 84 Fed. Reg. 44,238, 44,244 (Aug. 23, 2019) ; see also New York, ––– F.3d at ––––, 2020 WL 3967838, at *3.²

The Good Neighbor Provision of the Act is intended to address the fact that "[s]tate-level air quality regulation is an inherently complicated endeavor because ‘air pollution is transient, heedless of state boundaries. Pollutants generated by upwind sources are often transported by air currents, sometimes over hundreds of miles, to downwind States.’ " Maryland v. EPA, 958 F.3d 1185, 1190 (D.C. Cir. 2020) (alteration omitted) (quoting EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 496, 134 S.Ct. 1584, 188 L.Ed.2d 775 (2014) ). SIPs for Upwind States that fully address the Good Neighbor obligations of those States are thus critical to the ability of Downwind States to attain the NAAQS because " ‘[a]s the pollution travels out of state, upwind States are relieved of the associated costs,’ which ‘are borne instead by the downwind States, whose ability to achieve and maintain satisfactory air quality is hampered by the steady stream of infiltrating pollution.’ " Id. (quoting EME Homer City, 572 U.S. at 496, 134 S.Ct. 1584 ).

On July 13, 2015, the EPA published notice, which became effective August 12, 2015, that 24 States, including certain Upwind States at issue in this case—Illinois, Michigan, Pennsylvania, Virginia, and West Virginia—had failed to submit SIPs that would have satisfied their Good Neighbor obligations with respect to the 2008 ozone NAAQS. See Findings of Failure to Submit a Section 110 State Implementation Plan for Interstate Transport for the 2008 National Ambient Air Quality Standards for Ozone, 80 Fed. Reg. 39,961, 39,965 (July 13, 2015) ; Idsal Decl. ¶ 53. The "findings of failure to submit establish[ed] a 2-year deadline for the EPA to promulgate a [FIP] to address the interstate transport SIP requirements ...." 80 Fed. Reg. at 39,961 -62; see also 42 U.S.C. § 7410(c)(1). On June 15, 2016, the EPA published notice that, effective July 15, 2016, it had disapproved relevant portions of Indiana and Ohio's Good Neighbor SIPs. See Indiana; Ohio; Disapproval of Interstate...