Sierra Club v. Johnson, CIV.A.04-2163(JR).
| Decision Date | 06 April 2005 |
| Docket Number | No. CIV.A.04-2163(JR).,CIV.A.04-2163(JR). |
| Citation | 374 F.Supp.2d 30 |
| Parties | SIERRA CLUB, Plaintiff, v. Stephen L. JOHNSON, Acting Administrator, United States Environmental Protection Agency, Defendant. |
| Court | U.S. District Court — District of Columbia |
David S. Baron, Earthjustice, Washington, DC, for Plaintiff.
Eileen T. McDonough, U.S. DOJ, Washington, DC, for Defendant.
The Sierra Club seeks injunctive relief to compel the Administrator of the Environmental Protection Agency to fulfill his obligation, assigned to him by the Clean Air Act, to take final approval/disapproval action on state implementation plans (SIPs) submitted by Washington, D.C., Maryland, and Virginia ("the states"). At oral argument of the Sierra Club's motion on February 14, 2005, I stated that EPA would indeed be affirmatively enjoined to take the required action, and to do it no later than the date by which EPA has promised to take action, May 3, 2005. This memorandum states the reasons for that mandatory injunction.
Clean Air Act (CAA)
EPA has promulgated national ambient air quality standards (NAAQS) specifying permissible concentrations of certain pollutants, one of which is ozone. Geographic areas are designated "attainment" or "nonattainment" areas depending on whether they meet the NAAQS. Nonattainment areas for ozone are subclassified as marginal, moderate, serious, severe, or extreme. The Clean Air Act set deadlines by which designated areas must achieve the ozone NAAQS. In 1991, EPA designated the Washington D.C. area a "serious" ozone nonattainment area, with a designated attainment date of November 15, 1999. 42 U.S.C. § 7511(a)(1). If the EPA finds a nonattainment area has not met its attainment deadline, the EPA must reclassify, or "bump up", the area.
The Clean Air Act required submission of state implementation plans (SIPs) showing how states would meet, maintain, and enforce the NAAQS for ozone. Id. at § 7410(a)(2). Within six months after the submission of an SIP, EPA was required to determine whether the plan was complete. If six months passed with no EPA action on a SIP, the plan was deemed complete by operation of law. Id. at § 7410(k)(1)(B). Once an SIP was deemed complete, the EPA had 12 months to approve or disapprove it, either in whole or in part. Id. at § 7410(k)(2).
History of the current dispute
Washington, D.C., Maryland, and Virginia submitted their SIPs to the EPA in 1997 and 1998. (These plans are collectively referred to as the pre-2001 submissions). In their pre-2001 submissions, consisting of rate of progress plans (ROP)1 and attainment plans, the states asked the EPA to push back the attainment deadline for ozone emissions by six years, to November 15, 2005. The EPA promulgated a rule on January 3, 2001 approving the submissions, including the requested extension. In Sierra Club v. EPA, 294 F.3d 155 (D.C.Cir.2002) (Sierra Club I), upon a petition for review, the Court of Appeals remanded that rule, finding that EPA lacked the authority to extend state attainment deadlines or to approve SIPs that failed to meet Clean Air Act criteria.2 Id. at 158.
When the EPA did not act timely upon the remand, the plaintiff filed a citizen suit in this court (Sierra Club II ).3 On December 18, 2002, in Civil Action No. 02-2235, I ordered EPA to publish a final determination as to whether the states had met their deadlines for NAAQS ozone attainment in the D.C. area and to reclassify the area appropriately if it found nonattainment. On January 24, 2003 EPA issued its determination that the states had not complied with the November 15, 1999 attainment deadline for serious nonattainment areas and "bumped up" the D.C. area to "severe." See 42 U.S.C. § 7511(b)(2). The attainment deadline for severe nonattainment areas is November 15, 2005. Id. at 7511(a)(1).
The states then filed revised SIPs, and, on April 17, 2003, the EPA conditionally approved them. The Sierra Club again petitioned the D.C. Circuit for review. In Sierra Club v. EPA, 356 F.3d 296 (D.C.Cir.2004) (Sierra Club III), the court "agree[d] with the Sierra Club's principal contention that EPA was not authorized to grant conditional approval to plans that did nothing more than promise to do tomorrow what the Act requires today." Id. at 298.4 The court held that the states' plans still lacked the statutory elements that the court had found lacking in Sierra Club I and noted the EPA's concession that the plans did not contain measures to account for the "bump up" of the states ozone nonattainment classification from serious to severe.
The Sierra Club then returned to this court, moving for an order enforcing the December 18, 2002 order in Sierra Club II that had directed EPA to act on the states' pre-2001 submissions. I denied that motion on August 25, 2004, noting that, although the "Court of Appeals' decision to which plaintiff refers invalidated the substance of one of those actions ... EPA's act of publishing the notices satisfied the terms of the injunction."
It has taken considerably longer to recite the background of this case than to answer the legal question it presents. That question is whether (as Sierra Club contends) EPA still has a duty enforceable in this Court to act on the SIPS submitted by the states before 2001 to address what were then serious nonattainment areas, or whether (as EPA contends) that duty was either satisfied by its 2003 rule conditionally approving the SIPS or "overtaken by events" when the states made further submissions in 2004 to address what by then had been bumped up to severe nonattainment issues.
The answer is that EPA's duty to act is still (or again) unfulfilled, because the Court of Appeals' order vacating EPA's conditional approval of the pre-2001 SIPS in Sierra Club II operated to restore the status quo ante.5 See U.S. Tanker Owners Comm. v. Dole, 809 F.2d 847, 854-55 (D.C.Cir.1987) (); Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 97 (D.C.Cir.2002) (). The status quo ante, indeed, was created by the Court of Appeals' vacatur of EPA's earlier action in Sierra Club I that left unfulfilled EPA's duty to take final approval/disapproval action on the states' plans and laid the predicate for the injunction in Sierra Club II, see Application Prelim. and Permanent Inj. in No. 02-2235 [docket # 3] at 15. The Administrator's non-discretionary duty under the Clean Air Act was to approve or disapprove the pre-2001 SIPS. The Administrator's two prior attempts to carry out that duty have been vacated by the Court of Appeals.
EPA's duty to act on the pre-2001 submissions has not been mooted or overtaken by the fact...
To continue reading
Request your trial
-
New Jersey v. Wheeler
...remanded without vacating the substantive rule that the EPA argued had discharged the nondiscretionary duty); Sierra Club v. Johnson, 374 F. Supp. 2d 30, 32-33 (D.D.C. 2005) (finding that the EPA's mandatory duty to act on SIPs submitted "is still (or again) unfulfilled, because the Court o......
-
Strait Shipbrokers Pte. Ltd. v. Blinken
...v. Bush , 945 F. Supp. 2d 64, 67 (D.D.C. 2013), "especially when directed at the United States Government," Sierra Club v. Johnson , 374 F. Supp. 2d 30, 33 (D.D.C. 2005) ; see also Mylan Pharms., Inc. v. Shalala , 81 F. Supp. 2d 30, 36 (D.D.C. 2000) ("In this Circuit, ‘the power to issue a ......
-
Kondapally v. U.S. Citizenship & Immigration Servs.
...v. Bush, 945 F. Supp. 2d 64, 67 (D.D.C. 2013), "especially when directed at the United States Government," Sierra Club v. Johnson, 374 F. Supp. 2d 30, 33 (D.D.C. 2005); see also Mylan Pharms., Inc. v. Shalala, 81 F. Supp. 2d 30, 36 (D.D.C. 2000) ("In this Circuit, 'the power to issue a prel......
-
Sierra Club v. U.S. Envtl. Prot. Agency
...F.2d 847, 854 (D.C.Cir.1987), and Sugar Cane Growers Co-op. of Florida v. Veneman, 289 F.3d 89, 97 (D.C.Cir.2002)). Sierra Club v. Johnson, 374 F.Supp.2d 30 (D.D.C.2005), recognized the same rule. That case involved a deadline under the CAA by which the EPA was required to approve or disapp......