Sierra Club v. Jackson

• Decision Date: 20 July 2010
• Docket Number: Civil Action No. 09-2089 (ESH).
• Citation: 724 F.Supp.2d 33
• Parties: SIERRA CLUB et al., Plaintiffs, v. Lisa P. JACKSON, Defendant.
• Court: U.S. District Court — District of Columbia

724 F.Supp.2d 33

SIERRA CLUB et al., Plaintiffs,

v.Lisa P. JACKSON, Defendant.

Civil Action No. 09-2089 (ESH).

United States District Court,District of Columbia.

July 20, 2010.

COPYRIGHT MATERIAL OMITTED.

Robert Steven Ukeiley, Berea, KY, Andrea S. Issod, Sierra Club, San Francisco, CA, for Plaintiffs.

Mary M. Whittle, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiffs Sierra Club and Valley Watch, Inc., proceeding under the citizen suit provision of the Clean Air Act (“CAA”), 42 U.S.C. § 7604(a)(2), challenge the inaction of the Environmental Protection Agency (“EPA”) with respect to the proposed construction of three new major pollution-emitting facilities in Kentucky. Defendant, arguing that the EPA has no mandatory duty to act to prevent the facilities' construction, has moved to dismiss for lack of subject matter jurisdiction. For the reasons set forth herein, the Court concludes that it lacks jurisdiction to review the agency's decision to not act in this case, and it will therefore grant defendant's motion.

BACKGROUND

I. STATUTORY REGIME

In furtherance of the CAA's twin goals “to [1] protect and [2] enhance the quality of the Nation's air resources,” 42 U.S.C. § 7401(b)(1), the statute establishes two concurrent regulatory schemes: one to enhance air quality in regions that do not meet National Ambient Air Quality Standards (“NAAQS”), see, e.g., id. §§ 7407-10, and one to protect air quality in regions that comply with NAAQS-referred to in the CAA as “attainment” areas. See, e.g., id. §§ 7470-7479. The EPA establishes and regularly updates the NAAQS for each of a small group of common air pollutants, called criteria pollutants, that includes, inter alia, ozone, lead, and carbon monoxide. Id. §§ 7408-7409; see 40 C.F.R. 50.8, 50.12, 50.15. Each state, in turn, promulgates a State Implementation Plan (“SIP”) to set out its means for attaining NAAQS or for protecting air standards in areas that have already attained NAAQS, and it submits its SIP to the EPA for approval. 42 U.S.C. § 7410.

Each state's SIP outlines a permit program to oversee the “modification, construction, and operation of any stationary source” of air pollution. Id. § 7410(a)(2)(D). Stationary sources in attainment areas are subject to a higher burden in the permit process, since those regions are subject to the Prevention of Significant Deterioration of Air Quality (“PSD”) program. Id. §§ 7470-7479. In attainment areas, a PSD permit is required before building any new “major emitting facility,” id. § 7475(a)(1), which the CAA defines as a stationary source with “the potential to emit two hundred and fifty tons per year or more of any air pollutant.” Id. § 7479(1).

Section 167 of the CAA charges the EPA Administrator with preventing the installation of major air pollution sources in attainment areas if she finds that the proposed facility would be constructed or operated inconsistently with PSD requirements. 42 U.S.C. § 7477; see Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 484, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004). Section 167, titled “Enforcement,” reads:

The Administrator shall, and a State may, take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction or modification of a major emitting facility which does not conform to the requirements of this part, or which is proposed to be constructed in any area designated pursuant to section 7407(d) of this title as attainment or unclassifiable and which is not subject to an implementation plan which meets the requirements of this part.

II. THE INSTANT ACTION

This action focuses on the EPA's duties under § 167 with respect to the proposed construction of three facilities in Kentucky: East Kentucky Power Cooperative's proposed J.K. Smith Generating Station coal-fired CFB Boiler Project (“Smith”), Conoco Phillips and Peabody's proposed Kentucky NewGas Synthetic Natural Gas Production plant (“NewGas”), and Cash Creek Generation LLC's proposed coal-fired Cash Creek Generating Station (“Cash Creek”). (Compl. ¶ 1.) Both parties agree that each proposed facility, if built, would represent a major emitting facility. ( Id.; Def.'s Mot. to Dismiss [“Def's Mot.”] at 1.) In addition, all three facilities are in counties currently designated as attainment areas. (Compl. ¶ 1; Def.'s Mot. at 1.)

Because the proposed installations are major emitting facilities in attainment areas, they are subject to the EPA's enforcement authority under § 167 if they do not comply with CAA requirements. Plaintiffs “do not believe that [Smith, NewGas, and Cash Creek's] operating and construction permits conform with the requirements of the CAA,” and therefore, they argue that the facilities trigger § 167's provision for enforcement. (Compl. ¶ 9.) However, as plaintiffs complain, the agency is not acting to prevent the construction of these facilities. ( Id.)

Reading § 167 as imposing a nondiscretionary duty on the EPA, plaintiffs have sued the EPA Administrator pursuant to the citizen suit provision of the CAA, which allows civil actions for “failure of the Administrator to perform any act or duty under [CAA] which is not discretionary.” 42 U.S.C. § 7604(a)(2). Plaintiffs seek declaratory and injunctive relief aimed at compelling the Administrator “to immediately take measures as necessary to prevent construction” of the three facilities in question. (Compl. at 14-15 ¶¶ [A]-[E].) Defendant has moved to dismiss the complaint for lack of jurisdiction, on the ground that under the citizen suit provision, district courts may only hear cases involving “a nondiscretionary, or mandatory, duty” and “cannot dictate how the Administrator must act.” Rushing v. Leavitt, No. 03-CV-1969, 2005 WL 555415, at *3-*5 (D.D.C. Mar. 7, 2005).

ANALYSIS

I. GOVERNING PRINCIPLES OF LAW

The Administrative Procedure Act (“APA”) provides a strong presumption favoring judicial review of agency actions, see, e.g., Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), to which courts have carved out two exceptions: first, where Congress has expressly precluded judicial review by statute, and second, which is the focus of this case, where the agency action is “ ‘committed to agency discretion by law.’ ” NRDC v. SEC, 606 F.2d 1031, 1043 (D.C.Cir.1979) (quoting 5 U.S.C. § 701(a)). In the seminal case relating to judicial review of enforcement actions, Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Supreme Court held that “an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.” Id. at 831, 105 S.Ct. 1649.

In Chaney, prison inmates who had been sentenced to death petitioned the Food and Drug Administration (“FDA”), alleging that the use of certain drugs for lethal injection violated the Food, Drug and Cosmetic Act (“FDCA”). Id. at 823-25, 105 S.Ct. 1649. The prison inmates further requested that the FDA take enforcement action in light of these violations, but the FDA refused. Id. In finding the FDA's non-enforcement decision to be unreviewable, the Supreme Court explained:

[A]n agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency's overall policies, and indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.

Id. at 831, 105 S.Ct. 1649. Based on these concerns, the Court found that an agency's decision to refuse to bring an enforcement action is unsuitable for review, and therefore, it “should be presumed immune from judicial review” unless the statute “has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 832-33, 105 S.Ct. 1649.

Applying this test to the FDCA, the Chaney Court found no “law to apply,” for there were no “meaningful standards for defining the limits of ... [agency enforcement] discretion.” Id. at 834, 105 S.Ct. 1649. It thus concluded that the FDA's decision not to institute enforcement proceedings was “committed to agency discretion by law” within the meaning of the APA, id. at 834-35, 105 S.Ct. 1649, and it left “to Congress, and not to the courts, the decision as to whether an agency's refusal to institute proceedings should be judicially reviewable.” Id. at 838, 105 S.Ct. 1649.

To rebut Chaney's presumption and find a nondiscretionary enforcement duty, a court must locate within the statute “guidelines for the agency to follow” and “guidelines for informed judicial review.” Chaney, 470 U.S. at 833, 836, 105 S.Ct. 1649. See also Ass'n of Irritated Residents v. EPA, 494 F.3d 1027, 1033 (D.C.Cir.2007) (requiring “meaningful guidelines defining the limits of [enforcement] discretion” to find a nondiscretionary duty). Statutes can provide these guidelines through, inter alia, a requirement “that all specified action be taken by a date-certain deadline,” Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C.Cir.1987), and a “meaningful standard” against which to judge whether an agency action satisfies the duty. E.g., Chaney, 470 U.S. at 830, 105 S.Ct. 1649.

II. SECTION 167 CONFERS DISCRETIONARY ENFORCEMENT AUTHORITY

In light of Chaney's presumption that statutory enforcement provisions are discretionary, plaintiffs focus on three factors to rebut that presumption...