Sierra Club v. Envtl. Prot. Agency

• Citation: 699 F.3d 530
• Decision Date: 09 November 2012
• Docket Number: No. 11–1184.,11–1184.
• Parties: SIERRA CLUB, Petitioner v. ENVIRONMENTAL PROTECTION AGENCY and Lisa Perez Jackson, Administrator, U.S. Environmental Protection Agency, Respondents American Chemistry Council, et al., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

699 F.3d 530

403 U.S.App.D.C. 61

SIERRA CLUB, Petitioner

v.ENVIRONMENTAL PROTECTION AGENCY and Lisa Perez Jackson, Administrator, U.S. Environmental Protection Agency, Respondents

American Chemistry Council, et al., Intervenors.

No. 11–1184.

United States Court of Appeals,District of Columbia Circuit.

Argued Sept. 12, 2012.

Decided Nov. 9, 2012.

On Petition for Review of Final Action of the United States Environmental Protection Agency.

James S. Pew filed the briefs and argued the cause for petitioner.

Madeline Fleischer, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief were Norman L. Rave Jr., Attorney, and Michael Thrift, Attorney, U.S. Environmental Protection Agency.

Lisa M. Jaeger, Jeffrey A. Knight, David M. Friedland, and Leslie A. Hulse were on the brief for intervenors American Chemistry Council, et al., in support of respondents.

Before: HENDERSON and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

Opinion concurring in the judgment filed by Circuit Judge HENDERSON.

WILLIAMS, Senior Circuit Judge:

Sierra Club here challenges a “Determination” of the Environmental Protection Agency. In the Determination, EPA announced that it had met the regulatory obligations imposed on it by § 112(c)(6) of the Clean Air Act (“CAA”), 42 U.S.C. § 7412(c)(6). We conclude that the Determination is a legislative rulemaking subject to the notice-and-comment provisions of the Administrative Procedure Act, 5 U.S.C. § 553. Because EPA issued the Determination without providing notice and opportunity for comment, we vacate and remand for the agency to follow those procedures.

* * *

In 1990 Congress amended the CAA to assign EPA the following duty:

With respect to [seven specified hazardous air pollutants (“HAPs”) ], the Administrator shall, not later than five years after November 15, 1990, list categories and subcategories of sources assuring that sources accounting for not less than 90 per centum of the aggregate emissions of each such pollutant are subject to standards under subsection (d)(2) or (d)(4) of this section. Such standards shall be promulgated not later than 10 years after November 15, 1990.

42 U.S.C. § 7412(c)(6). The obligation thus comprises both listing sources (due by November 15, 1995) and promulgating standards (due by November 15, 2000).

In 1998 EPA published its conclusion that it had satisfied its duty to list sources, a conclusion Sierra Club immediately challenged. But the CAA specifically precluded review of the agency's source-listing under § 112(c)(6) until the agency had issued emissions standards thereunder, 42 U.S.C. § 7412(e)(4), so we dismissed the challenge, without prejudice to the Sierra Club's seeking review once EPA issued standards. Sierra Club v. EPA, No. 98–1270, 1998 WL 849408 (D.C.Cir. Nov. 24, 1998).

EPA's listing of sources and promulgation of standards continued after its 1998 rulemaking, and well after the statutory deadline. As to sources, it made successive adjustments in the 1998 list by adding new sources and delisting old ones. See, e.g., 76 Fed.Reg. 9450/1 (Feb. 17, 2011) (adding gold mine source category); 73 Fed.Reg.1916/1 (Jan. 10, 2008) (finalizing decision not to regulate gasoline distribution area sources); 72 Fed.Reg. 53,814/1 (Sept. 20, 2007) (listing electric arc furnace steelmaking facilities as an area source); 67 Fed.Reg. 68,124/1 (Nov. 8, 2002) (delisting asphalt hot-mix production, fabricated metal products, paint and allied products, paper coated and laminated, packaging and transportation equipment manufacturing, and open burning of scrap tires as area source categories).

As to emissions standards, it continued to set such standards for a variety of sources, sometimes in an express effort to satisfy its § 112(c)(6) obligations, see, e.g., 76 Fed.Reg. 15,554/1, 15,556 (Mar. 21, 2011) (setting emissions standards for 112(c)(6) chemicals emitted by industrial, commercial, and institutional boilers), sometimes with no reference to § 112(c)(6), see, e.g., 62 Fed.Reg. 52384/1 (Oct. 7, 1997) (setting emissions standards for Primary Aluminum Reduction Plants, with specific reference to chemicals listed in § 112(b), but not § 112(c)(6)).

Despite its activities in this area, EPA failed to meet the statutory deadline of November 15, 2000. In 2001 Sierra Club filed suit in district court to compel timely compliance. Sierra Club v. Whitman, No. 01–1558, (D.D.C. filed July 18, 2001). EPA responded with an argument that such a suit was an inappropriate remedy for any omissions in its fulfillment of its § 112(c)(6) duties. Rather, it pointed to the declaration it had filed with the court saying that it intended, once it completed emissions standards for remaining source categories, to “issue a notice that explains how it has satisfied the requirements of [§ ] 112(c)(6) in terms of issuing standards for source categories that account for the statutory thresholds identified in [§ ] 112(c)(6).” It assured the court that that action, like any other final agency action, would be subject to review in this court.

The district court accepted EPA's view, and set a remedial deadline for EPA to complete its obligations under § 112(c)(6), but refused to identify the legal standards required by that section, finding instead that the D.C. Circuit was “the exclusive forum for substantive review of EPA regulations promulgated under [§ ] 112 of the Clean Air Act.” Sierra Club v. Johnson, 444 F.Supp.2d 46, 60 (D.D.C.2006). On EPA's motion, the district court extended the deadlines announced in Johnson “a number” of times, and ultimately ordered EPA to comply with its statutory deadline by February 21, 2011. Sierra Club v. Jackson, No. 01–1537, 2011 WL 181097 at *1, *14 (D.D.C. January 20, 2011).

EPA honored that court deadline in March 2011 by issuing the Determination challenged here. The Determination declared that the agency “has completed sufficient standards to meet the 90 percent requirement” under § 112(c)(6). 76 Fed.Reg. 15308/1 (Mar. 21, 2011). The Determination also referred to an accompanying memorandum that “document[s] the actions the Agency has taken to meet these requirements.”

Sierra Club petitions for review of EPA's Determination. It claims that EPA's announcement that it has satisfied its obligations under the statute is unreasonable, arbitrary, capricious, and otherwise unlawful. Sierra Club also argues that the Determination is a legislative rulemaking subject to the notice-and-comment requirements set forth in § 553 of the APA, and invalid for failure to comply with those requirements.

EPA naturally resists Sierra Club's arguments on the merits, but also argues that we lack jurisdiction to resolve this matter for two alternative reasons. First, it claims a want of standing. Second, it argues that Sierra Club's challenges are untimely under § 307 of the CAA, 42 U.S.C. § 7607, since the suit lags some of the regulations referenced in the Determination by more than the 60 days allowed by § 307—lags those regulations, in fact, by many years. There is, besides, another threshold issue—the question whether the Determination was a “final” agency action.

* * *

Standing. EPA attacks Sierra Club's standing with the argument that “[a]lthough Sierra Club asserts that its members are harmed by emissions of [§ ] 112(c)(6) HAPs from certain source categories, ... it provides no evidence that the emission standards it discusses in its brief fail to effectively control the [§ ] 112(c)(6) HAPs.” Respondent's Br. at 23. Accordingly, it says, Sierra Club cannot show, as it must, that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted). EPA seems to suggest that Sierra Club's complaint relates solely to whether the standard-setting rules at issue explicitly mention § 112(c)(6), saying that petitioner has offered no “basis to believe that, if EPA were forced to revisit those emission standards and set numeric limitations specifically naming the [§ ] 112(c)(6) HAPs, the resulting level of control would be any more stringent....” Respondent's Br. at 23–24.

This argument misconceives the nature of Sierra Club's complaint. Sierra Club argues that despite EPA's statutory obligations, it has yet to set emission standards for two types of § 112(c)(6) HAPs, and has set standards for another type of HAPs “for sources that account for far less than ninety percent of aggregate emissions” of that type. Petitioner's Br. at 27. The Club seeks a vacatur of the Determination so that, before any such determination becomes final, it can make its case directly to EPA as to why the agency's conclusion that it has met the court-ordered deadline for all three types of HAPs is erroneous and, relatedly, why the statute compelled EPA to regulate the HAPs to which Club members are exposed more stringently than the agency has already purported to do. If correct on the merits, as we must assume for standing purposes, such a challenge presents a clearly redressable injury: some Sierra Club members unquestionably live within zones they claim are exposed to § 112(c)(6) HAPs, and our vacatur will require EPA, consistent with the district court's deadline order, to entertain and respond to the Club's claims about the necessary scope and stringency of the standards.

Having shown its members' redressable concrete interest, Sierra Club can assert violation of the APA's notice-and-comment requirements, as those procedures are plainly designed to protect the sort of interest alleged. As to such requirements, Sierra Club enjoys some slack in showing a causal relation between its members' injury and the legal violation claimed. Its position is similar to that of a party “living adjacent to the site for proposed...