Nucor Steel-Arkansas v. Pruitt
| Decision Date | 31 March 2017 |
| Docket Number | No. 14–cv–0199 (KBJ),14–cv–0199 (KBJ) |
| Citation | 246 F.Supp.3d 288 |
| Parties | NUCOR STEEL–ARKANSAS & Nucor–Yamato Steel Company, Plaintiffs, v. Scott PRUITT, in his official capacity as Administrator, U.S. Environmental Protection Agency, Defendant. |
| Court | U.S. District Court — District of Columbia |
David Richard Taggart, Bradley Murchison Kelly & Shea, LLC, Shreveport, LA, for Plaintiffs.
Eileen T. McDonough, U.S. Department of Justice Environmental Defense Section, Washington, DC, for Defendant.
This case is nominally a procedural action that Plaintiffs Nucor Steel–Arkansas and Nucor–Yamato Steel Company (collectively, "Nucor") have filed against the Administrator of the Environmental Protection Agency ("EPA") pursuant to one of the citizen-suit provisions of the Clean Air Act ("CAA"), 42 U.S.C. §§ 7401 – 7671q. See id. § 7604(a)(2) (). But in the broader scheme of things, this matter is actually one of many battlegrounds in a multi-front conflict between two competing steel-manufacturing companies with facilities in Mississippi County, Arkansas. Nucor operates two manufacturing facilities near Blytheville, Arkansas, which is approximately twenty miles from a site in Osceola, Arkansas, at which Big River Steel Company ("Big River Steel") has proposed to build a new manufacturing facility. (See Nucor's Second Suppl. & Am. Compl. ("Compl."), ECF No. 40, ¶¶ 4–5, 10.)1 Big River Steel obtained a permit from the Arkansas Department of Environmental Quality ("ADEQ") that authorized the construction and operation of its planned facility, and Nucor responded by launching legal attacks against the permit, both in the Arkansas state court system and in the U.S. District Court for the Eastern District of Arkansas. See Nucor Steel–Arkansas v. Ark. Pollution Control & Ecology Comm'n (Nucor I ), 2015 Ark. App. 703, 478 S.W.3d 232 (2015) ; Nucor Steel–Arkansas v. Big River Steel, LLC (Nucor II ), 825 F.3d 444 (8th Cir. 2016).2
Significantly for present purposes, Nucor has also sought to challenge Big River Steel's permit by petitioning the EPA to object to the permit under Title V of the CAA, 42 U.S.C. §§ 7661 – 7661f. Per Title V, the EPA may object to any operating permit that a state permitting authority issues if the permit does not comply with the CAA, id. § 7661d(b)(1), and if EPA fails to object on its own, any person may petition the agency to issue an objection, id. § 7661d(b)(2). When the EPA failed to respond timely to Nucor's petition for an objection to Big River Steel's permit, Nucor filed this lawsuit, seeking a court order that compels the EPA to respond to Nucor's petition. (See Compl., Prayer for Relief, ¶ B.)
Before this Court at present is the EPA's motion to dismiss Nucor's complaint. (See EPA's Mot. to Dismiss Second Suppl. & Am. Compl. for Lack of Jurisdiction ("Mot."), ECF No. 43.) In the motion, the agency contests Nucor's various stated bases for Article III standing, only one of which this Court finds worthy of discussion here.3 Specifically, Nucor's complaint asserts that, by operation of a set of rules within the CAA known as the Prevention of Significant Deterioration ("PSD") program, the permitted emissions from the new Big River Steel mill will cause a construction project that Nucor has planned to undertake at one of its Arkansas facilities to be subject to more stringent emissions limitations than would have applied to Nucor's project otherwise. (See Compl.
¶¶ 63, 71–81.) The EPA argues that Nucor has not adequately alleged that Big River Steel's permit will cause Nucor imminent injury in this way, because the complaint does not sufficiently assert that Nucor has any imminent construction plans that will require PSD–program review or that such plans would actually be affected by Big River Steel's emissions. (See Mot. at 18–23.)4
For the reasons explained below, this Court agrees with Nucor that certain allegations in the complaint are sufficient to demonstrate (for the purpose of the pleading stage of this litigation) that Big River Steel's permit works a plausible and imminent injury to Nucor in the form of more stringent limitations under the PSD program. (See, e.g. , Compl. ¶ 78 (); id. ¶ 28 ().) Consequently, this Court finds that the complaint adequately alleges Nucor's standing to bring the instant lawsuit, which means that the EPA's motion to dismiss for lack of standing must be DENIED. A separate order consistent with this Memorandum Opinion will follow.
This Memorandum Opinion addresses the EPA's contention that Nucor lacks Article III standing because its complaint does not adequately allege that Nucor has imminent construction plans that the emissions from Big River Steel's new facility will affect by operation of the PSD program. Notably, the EPA appears to accept Nucor's suggestion that an injury of the type Nucor alleges can constitute a concrete, particularized injury that would confer Article III standing if an entity that has imminent construction plans demonstrates that it actually would be harmed in this way. In order to evaluate the EPA's assertion that Nucor's complaint fails to make an adequate showing of imminent injury, it is important to understand how the operation of the PSD program could possibly inflict a cognizable injury-in-fact for standing purposes, and achieving that understanding requires background knowledge of the overall CAA scheme and the contours of the PSD program, both of which are sketched out below.
With the CAA Amendments of 1970, Congress enacted a "comprehensive national program that made the States and the Federal Government partners in the struggle against air pollution." Gen. Motors Corp. v. United States , 496 U.S. 530, 532, 110 S.Ct. 2528, 110 L.Ed.2d 480 (1990). At the heart of the CAA are the National Ambient Air Quality Standards ("NAAQS"), which are specified numerical thresholds for the concentration of particular pollutants in the outdoor air (also known as the "ambient" air). See 42 U.S.C. § 7409. Because of their role within the overall statutory scheme, the NAAQS are generally considered to be "the engine that drives nearly all of Title I of the CAA." Whitman v. Am. Trucking Ass'ns , 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001).
The CAA requires the EPA "to promulgate NAAQS for each air pollutant" about which the agency has made certain findings, id. at 462, 121 S.Ct. 903 ; see also 42 U.S.C. § 7409(a), and the agency must set these uniform, nationally applicable pollution standards at the levels necessary "to protect the public health," 42 U.S.C. § 7409(b)(1), while also providing for "an adequate margin of safety," id. and "accurately reflect[ing] the latest scientific knowledge" about the effects on public health from the presence of each pollutant in the ambient air, id. § 7408(a)(2). To date, the EPA has promulgated NAAQS for six types of air pollutants. Util. Air Regulatory Grp. v. EPA (UARG ), ––– U.S. ––––, 134 S.Ct. 2427, 2435, 189 L.Ed.2d 372 (2014) ; see 40 C.F.R. pt. 50. As pertinent here, there are two NAAQS that relate to a pollutant called "particulate matter": one that applies to PM2.5and another that applies to PM10. See 40 C.F.R. §§ 50.6 (setting NAAQS for PM10), 50.13, 50.18 (setting NAAQS for PM2.5).5
Once the EPA establishes a NAAQS for a particular pollutant, each state assumes the lead role in implementing that air quality standard, with each state adopting (subject to EPA approval) "a plan which provides for implementation, maintenance, and enforcement" of that NAAQS. 42 U.S.C. § 7410(a)(1).6 Each state's implementation plan ("SIP") is subject to certain minimum requirements laid out in the CAA, see id. § 7410(a)(2), but "[i]t is to the States that the CAA assigns initial and primary responsibility for deciding what emissions reductions will be required from which sources" in order to achieve the NAAQS. Am. Trucking Ass'ns , 531 U.S. at 470, 121 S.Ct. 903 ; see also 42 U.S.C. § 7407(a) ().
As a general matter, through its SIP, each state implements a permit program that requires each new and modified major stationary source of pollution to seek a pre-construction permit that sets emissions limitations for that source. See Texas v. EPA , 726 F.3d 180, 183–84 (D.C. Cir. 2013) ; see also 42 U.S.C. §§ 7410(a)(2)(C). For example, in Arkansas, the ADEQ issues pre-construction permits, Nucor II , 825 F.3d at 447 ; see Ark. Code §§ 8–4–201, 203, and any entity that plans to build a new major emitting facility, or modify an existing one, must apply to the ADEQ for a permit that, if granted, contains allowable emissions levels pertaining to that source, Nucor II , 825 F.3d at 447.
Importantly, the particular emissions limitations that apply to a new or modified source depend on where the source is located. The EPA divides the country into "air quality control regions" and classifies each region as being in "attainment," or in "non-attainment," or treats the region as "unclassifiable," with respect to each NAAQS. 42 U.S.C. § 7407(d)(1)(B) ; see 40 C.F.R. pt. 81, subparts B–C. And these designations dictate which emissions limitations the states...
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