Sierra Club v. Browner, No. Civ. A. 98-2733(CKK).

CourtU.S. District Court — District of Columbia
Writing for the CourtKollar-Kotelly
Citation130 F.Supp.2d 78
Decision Date29 January 2001
Docket NumberNo. Civ. A. 98-2733(CKK).
PartiesSIERRA CLUB, et al., Plaintiffs, v. Carol M. BROWNER, et al. Defendants.
130 F.Supp.2d 78
SIERRA CLUB, et al., Plaintiffs,
v.
Carol M. BROWNER, et al. Defendants.
No. Civ. A. 98-2733(CKK).
United States District Court, District of Columbia.
January 29, 2001.

Page 79

Lewis C. Green, Green, Hennings & Henry, St. Louis, MO, Joseph Mendelson, III, International Center for Technology Assessment, Washington, DC, Douglas R. Williams, St. Louis University School of Law, St. Louis, for Plaintiffs.

Eileen McDonough, U.S. Dept. of Justice, Environment and Natural Resources Division, Kendra Sagoff, U.S. Environment

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Protection Agency, Office of General Counsel, Washington, DC, Robert Patrick, Office of Regional Counsel, Kansas City, for Defendant.

Jeremiah W. Nixon, Attorney General, James Robert Layton, Joseph P. Bindbeutel, Timothy Duggan, Jefferson City, MO, for Intervenor State of Missouri.

James E. Ryan, Attorney General, Matthew J. Dunn, Thomas Davis, Office of the Attorney General, Springfield, IL, for Intervenor State of Illinois.

Jeffrey R. Gans, Douglas L. Patin, Washington, DC, Bradley S. Hiles, David R. Erickson, Blackwell Sanders Peper Martin, St. Louis, MO, for AIM-AGC Intervenors.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.


Seeking relief under the Clean Air Act, 42 U.S.C. § 7401 et seq. (CAA), Plaintiffs Sierra Club and Missouri Coalition for the Environment filed two separate complaints alleging that Defendant Carol M. Browner, Administrator of the Environmental Protection Agency, had failed to enforce the Act and perform nondiscretionary statutory duties.1 These duties include publication of notice in the Federal Register identifying the St. Louis Nonattainment Area as a region that has failed to attain the applicable standards for ozone pollutants and approval or disapproval of Missouri's revisions to its state implementation plan (SIP) for reducing volatile organic compound emissions.

On January 28, 2000, the Court dismissed one complaint altogether, see Order Granting EPA's Mot. to Dismiss, No. 99-388 (Jan. 28, 2000), and dismissed five of the seven counts contained in the other. See Order Granting in Part and Holding in Abeyance in Part EPA's Mot. for Partial J. on the Pleadings, No. 99-2733 (Jan. 28, 2000).2 Although dispositive motions relating to the other two counts were pending as well, the Court held them in abeyance to allow potential intervenors an opportunity to brief pertinent issues. See id. On February 2, 2000, the Court allowed three additional parties to intervene in the surviving suit and invited them to promptly file responses, if any, opposing or supporting the pending dispositive motions. See Intervention Order, No. 98-2733 (Feb. 2, 2000).3

A variety of motions are currently pending before the Court in the surviving case. First, EPA requests dismissal of Count II for reasons of mootness. See EPA's Mot. to Dismiss Count II; EPA's Mem. in Supp. of Mot. to Dismiss Count II. Sierra Club opposes the motion, see Pls.' Mem. in Opp'n to EPA's Mot. to Dismiss Count II, and EPA has filed a reply. See EPA's Reply Mem. in Supp. of Mot. to Dismiss Count II. Upon consideration of the pleadings and the applicable law, the Court shall grant the motion to dismiss the count. Second, Sierra Club asks the Court to modify its January 28, 2000, rulings in two respects. See Pls.' Mot. for Modification of Op. & Order ¶¶ 2-6. EPA opposes the request. See EPA's Opp'n to Pls.' Mot. for Modification of Op. & Order. Upon review of the pleadings and in light of the Court's decision with respect to Count II, the Court shall grant the motion to modify in part and deny it in part. Finally, the Sierra Club and EPA have submitted

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cross-motions for summary judgment on Count I. Upon consideration of the thorough briefing supplied by the parties and the intervenors,4 the Court shall grant summary judgment and order the relief described in this opinion.5

I. EPA'S MOTION TO DISMISS COUNT II

The Court turns first to EPA's motion to dismiss Count II in its entirety.6 In that count, Sierra Club argues that EPA failed to perform its non-discretionary duty of approving or disapproving Missouri's proposed SIP within the time period required by section 110(k)(2) of the Clean Air Act. See Compl. ¶¶ 48-51 (citing 42 U.S.C. § 7410(k)(2)). Arguing that Missouri's proposal was deficient in several respects, Sierra Club asks the Court to issue a declaratory judgment stating, inter alia, that the proposal does not satisfy the pertinent legal requirements, that EPA failed to act within the statutory time period, and that such inaction amounts to a constructive disapproval. See id. at 16-17, subpara. 1. Additionally, Sierra Club seeks an order requiring EPA to detail the deficiencies

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in the proposal and formally disapprove it. See id. at 17, subpara. 2.

In its motion to dismiss the count, EPA argues that the CAA allows this Court to grant relief only by requiring EPA to take the non-discretionary step of approving or disapproving the SIP. See EPA's Mem. in Supp. of Mot. to Dismiss Count II at 3. Noting that EPA approved a revised SIP for Missouri since the initiation of this suit, EPA contends that there is no further relief that this Court may grant, regardless of the underlying merits. See id. at 3-4. According to EPA, after the agency has taken the mandatory step of approving or disapproving a plan, parties seeking to overturn the decision are statutorily required to commence such challenges in the federal court of appeals that covers the region in question. See id. at 4. Thus, EPA maintains, this Court has no power to assess the substantive validity of EPA's decision to approve the Missouri SIP. When a court has no power to grant relief, EPA contends, the case is moot, the controversy is not live within the meaning of Article III, and the court lacks jurisdiction to consider the matter. See id. at 3-4; EPA's Reply Mem. in Supp. of Mot. to Dismiss Count II at 2. Without disputing the thrust of EPA's argument, Sierra Club maintains that dismissal of Count II is inappropriate because the time for appellate court review of EPA's substantive decision has not expired. See Pls.' Mem. in Opp'n to EPA's Mot. to Dismiss Count II at 1-2.

Sierra Club's suit, including Count II, arises under 42 U.S.C. § 7604(a)(2), which grants a private right of action against the EPA Administrator "where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." 42 U.S.C. § 7604(a)(2); see Compl. ¶ 2. The Court's power to grant relief in such suits is limited to "order[ing] the Administrator to perform such act or duty [or] compel[ling] ... agency action unreasonably delayed." 42 U.S.C. § 7604(a). In other words, this Court's power is limited to requiring EPA to undertake the nondiscretionary duty at issue. In this case, that duty involves the timely approval or disapproval of Missouri's SIP proposal within the statutory time period. See 42 U.S.C. § 7410(k)(2) ("the Administrator shall act on the submission" within twelve months of a determination that the plan meets general completeness criteria) (emphasis added).

As EPA notes in its motion, the agency has now taken that nondiscretionary step. See EPA's Mem. in Supp. of Mot. to Dismiss Count II at 3-4. On May 18, 2000, it published a notice in the Federal Register approving a revised SIP submitted by Missouri. See 65 Fed.Reg. 31,485. Since the Court's power is limited to ordering EPA to take nondiscretionary action, and since EPA has taken that action by approving the Missouri SIP, the Court is without power to grant meaningful relief with regard to Count II. In its opposition, Sierra Club appears to dispute the logic and validity of EPA's decision to approve the SIP. See Pls.' Mem. in Opp'n to EPA's Mot. to Dismiss Count II at 1. However, as EPA argues, this Court is precluded from assessing the substance of the agency's decision. Such review is reserved for the federal court of appeals responsible for the region covered by the particular SIP. See 42 U.S.C. § 7607(b)(1); Navistar Int'l Transp. Corp. v. EPA, 941 F.2d 1339, 1341 (6th Cir.1991) ("The EPA's determination is a final agency action subject to judicial review in the courts of appeals under [42 U.S.C. § 7607(b)(1)].").7

Because the Court is unable to grant any relief beyond requiring steps that EPA has already taken, Count II is moot. See Burlington N.R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 688 (D.C.Cir.

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1996) (citing Church of Scientology v. United States, 506 U.S. 9, 11, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)) As such, Count II does not present a live case or controversy as required by the Constitution. See id. ("Article III confines federal courts to the resolution of actual cases or controversies, and thus prevents their passing on moot questions — ones where intervening events make it impossible to grant the prevailing party effective relief."). Because Count II does not satisfy this threshold constitutional requirement, this Court lacks authority to consider it.

As noted, Sierra Club opposes EPA's motion with the argument that dismissal would be premature because the appropriate court of appeals may yet have occasion to rule on the validity of EPA's action. This argument is unavailing because it attempts to root this Court's jurisdiction in the speculative possibility that a final agency action will be overturned. The Court, which must remain vigilantly aware of its constitutional limitations, assesses the contours of its jurisdictional reach with respect to the actual, non-speculative facts before it. If a controversy is not actual and live, the Court is without jurisdiction to entertain the matter, even if it is possible that some later, independent action may dispel any mootness. Accordingly, in light of the Court's jurisdictional limitations with regard to Count II, the Court shall dismiss it pursuant to Rule 12(b)(1).

II. SIERRA CLUB'S MOTION TO MODIFY

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  • National Resources Defense Council v. U.S. E.P.A., No. CV 04-8307-GHK(RCX).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 27 Junio 2006
    ...a nondiscretionary duty to establish TMDLs for California when the state failed to submit TMDLs for approval); Sierra Club v. Browner, 130 F.Supp.2d 78, 90 (D.D.C. 2001) (Chevron review is appropriate when citizen brings suit claiming agency has failed to perform nondiscretionary duty). The......
  • Envtl. Integrity Project v. U.S. Envtl. Prot. Agency, Civil Action No. 15-0139 (ABJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 1 Diciembre 2015
    ...a nondiscretionary duty on the Agency to make an endangerment finding” in response to a petition); see also Sierra Club v. Browner , 130 F.Supp.2d 78, 90 (D.D.C.2001) (finding that the court's authority to provide relief is limited to “order[ing] the EPA to take nondiscretionary actions req......
  • Voices v. McCarthy, Civil Action No. 12–0523 (RBW)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 29 Octubre 2013
    ...that the EPA's non-discretionary duty is pursued in a manner dictated solely by the Agency's discretion. SeeSierra Club v. Browner, 130 F.Supp.2d 78, 95 (D.D.C.2001). In view of the competing considerations at stake here, the Court finds it prudent to require the EPA to submit a proposed sc......
  • Voices v. McCarthy, Civil Action No. 12-0523 (RBW)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 29 Octubre 2013
    ...that the EPA's non-discretionary duty is pursued in a manner dictated solely by the Agency's discretion. See Sierra Club v. Browner, 130 F. Supp. 2d 78, 95 (D.D.C. 2001). In view of the competing considerations at stake here, the Court finds it prudent to require the EPA to submit a propose......
  • Request a trial to view additional results
25 cases
  • National Resources Defense Council v. U.S. E.P.A., No. CV 04-8307-GHK(RCX).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 27 Junio 2006
    ...a nondiscretionary duty to establish TMDLs for California when the state failed to submit TMDLs for approval); Sierra Club v. Browner, 130 F.Supp.2d 78, 90 (D.D.C. 2001) (Chevron review is appropriate when citizen brings suit claiming agency has failed to perform nondiscretionary duty). The......
  • Envtl. Integrity Project v. U.S. Envtl. Prot. Agency, Civil Action No. 15-0139 (ABJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 1 Diciembre 2015
    ...a nondiscretionary duty on the Agency to make an endangerment finding” in response to a petition); see also Sierra Club v. Browner , 130 F.Supp.2d 78, 90 (D.D.C.2001) (finding that the court's authority to provide relief is limited to “order[ing] the EPA to take nondiscretionary actions req......
  • Voices v. McCarthy, Civil Action No. 12–0523 (RBW)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 29 Octubre 2013
    ...that the EPA's non-discretionary duty is pursued in a manner dictated solely by the Agency's discretion. SeeSierra Club v. Browner, 130 F.Supp.2d 78, 95 (D.D.C.2001). In view of the competing considerations at stake here, the Court finds it prudent to require the EPA to submit a proposed sc......
  • Voices v. McCarthy, Civil Action No. 12-0523 (RBW)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 29 Octubre 2013
    ...that the EPA's non-discretionary duty is pursued in a manner dictated solely by the Agency's discretion. See Sierra Club v. Browner, 130 F. Supp. 2d 78, 95 (D.D.C. 2001). In view of the competing considerations at stake here, the Court finds it prudent to require the EPA to submit a propose......
  • Request a trial to view additional results

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