Sierra Club v. Thomas, C-86-0971-WWS.

• Decision Date: 08 April 1987
• Docket Number: No. C-86-0971-WWS.,C-86-0971-WWS.
• Parties: SIERRA CLUB, et al., Plaintiffs, v. State of California, Plaintiff-Intervenor, v. Lee M. THOMAS, in his official capacity as Administrator of the United States Environmental Protection Agency, Defendant, and Alabama Power Company, et al., Defendant-Intervenors.
• Court: U.S. District Court — Northern District of California

658 F. Supp. 165

SIERRA CLUB, et al., Plaintiffs, v. State of California, Plaintiff-Intervenor, v. Lee M. THOMAS, in his official capacity as Administrator of the United States Environmental Protection Agency, Defendant, and Alabama Power Company, et al., Defendant-Intervenors.

No. C-86-0971-WWS.

United States District Court, N.D. California.

April 8, 1987.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Deborah S. Reames, Sierra Club Legal Defense Fund, Inc., San Francisco, Cal., Robert E. Yuhnke, Environmental Defense Fund, Boulder, Colo., for plaintiffs.

Rodney Hamblin, Francis Boone, Asst. U.S. Attys., San Francisco, Cal., Lisa F. Ryan, Environmental Defense Section, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

Henry V. Nickel, Andrea Bear Field, Maida O. Lerner, Hunton & Williams, Washington, D.C., Robert A. Goodin, Diane Wear Larrabee, Jane Z. Felder, Armour, St. John, Wilcox, Goodin & Schlotz, San Francisco, Cal., for Alabama Power Co., intervenor.

Andrea Sheridan Ordin, Theodora Berger, Susan L. Durbin, Asst. Atty. Gen., Los Angeles, Cal., for State of Cal., intervenor.

MEMORANDUM OF OPINION AND ORDER

SCHWARZER, District Judge.

Plaintiffs have brought this action against defendant Lee M. Thomas, Administrator of the Environmental Protection Agency ("EPA"), to compel him to issue regulations under § 166(a) of the Clean Air Act, 42 U.S.C. § 7476(a), to prevent the significant deterioration of air quality from emissions of nitrogen oxides.¹ Section 166(a) requires EPA to promulgate the regulations within two years of August 7, 1977, but as of this date, almost ten years later, EPA has yet to comply. It now seeks an additional fifty months within which to promulgate the regulations the statute mandates.

FACTUAL AND PROCEDURAL BACKGROUND

In 1977, Congress enacted a statutory program, Part C, 42 U.S.C. §§ 7470-7479, of Subchapter I of the Clean Air Act, id. §§ 7401-7642, to prevent the significant deterioration of air quality (the "PSD program"). The program applies to areas of the country with ambient concentrations of air pollutants below national ambient air quality standards ("NAAQS"). NAAQS are maximum permissible concentrations of pollutants established by EPA under § 109 of the Clean Air Act, id. § 7409, and are enforced by the states, id. § 7410.

As part of the PSD program, § 163 of the Clean Air Act establishes numerical limits (called "increments") on increases in concentrations of sulfur dioxide and particulate matter ("Set I pollutants"). The size of the increase allowed under § 163 varies according to whether an area subject to the PSD program is a class I, II, or III area under a classification system established by §§ 162 and 164 of the act, id. §§ 7472, 7474. A major new emitting facility may not be constructed in a PSD area without a permit from state enforcement officials. Id. § 7475(a)(1). In order to obtain a permit, the owner or operator of the facility must demonstrate that the emissions from the facility will not result in an increase in pollution in excess of Set I increments. Id. § 7475(a)(3). This demonstration calls for the application of mathematical dispersion models, which predict the impact of new emissions on ambient concentrations of air pollutants.² See 40 C.F.R. § 51.24(1).

Nitrogen oxides are also subject to PSD regulation. Nitrogen oxides pollution has been identified as a likely cause of acute respiratory diseases, H.R.Rep. No. 294, 95th Cong., 1st Sess. 109-10, reprinted in 1977 U.S.Code Cong. & Admin.News 1077, 1188, and cancer, id. at 114, 1977 U.S.Code Cong. & Admin.News at 1192, and is known to cause acid rain, id. at 130, 1977 U.S.Code Cong. & Admin.News at 1209. Congress did not establish increments for nitrogen oxides, but instead in § 166(a) of the Clean Air Act required EPA to promulgate regulations to prevent significant deterioration in air quality from emissions of nitrogen oxides and other specified pollutants ("Set II pollutants").³

Congress provided that PSD regulations for Set II pollutants need not include an area classification system like that established for Set I pollutants. Section 166, however, establishes several other criteria for Set II PSD regulations. They must (1) fulfill the purposes of the Clean Air Act and the PSD program,⁴ 42 U.S.C. § 7476(c), (2) include "specific numerical measures against which permit applications may be evaluated," id., (3) provide a "framework for stimulating improved control technology," id., (4) protect air quality values, id., and (5) establish "specific measures at least as effective as the increments established for Set I pollutants," id. § 7476(d). The statute requires EPA to issue regulations not later than two years after August 7, 1977. Id. § 7476(a).

The statutory PSD program is in part a codification of an earlier court-ordered PSD program. In 1972, a district court determined that the Act's statement of purpose in § 101(b), id. § 7401(b), required state implementation plans to include measures to insure the "non-degradation of existing clean air." Sierra Club v. Ruckleshaus, 344 F.Supp. 253, 256 (D.D.C.), aff'd, 4 Env't Rep.Cas. 1815 (D.C.Cir.1972), aff'd by an equally divided court, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973). In 1974, EPA promulgated regulations amending state plans to include PSD standards. 39 Fed.Reg. 42,510 (1974). The basic structure of the 1974 PSD program was the same as that of the present statutory PSD program.

From 1979 to 1981, EPA took steps toward promulgating a PSD regulatory program for all four Set II pollutants: ozone, carbon monoxide, lead, and nitrogen oxides. In 1980, EPA published an advance notice of proposed rule making which solicited public comments on ten alternative PSD Set II programs. 45 Fed.Reg. 30088 (1980). Sixty-five comments were received. In addition, EPA hired outside contractors to aid it in developing a regulatory package. These contractors identified five tasks involved in preparing the package: (1) describing and evaluating various regulatory alternatives, (2) testing the alternatives in several geographic regions, (3) completing a detailed regulatory analysis, (4) preparing an environmental impact statement, and (5) preparing a draft regulatory package. By February 1981, EPA and the contractors had completed tasks one and two. In a report to EPA, the contractors set a four-month schedule for completing the remaining tasks. EPA determined that it would need an additional two months for internal review of the proposal and then ten months to proceed from proposed to final rule making. See 46 Fed.Reg. 23705 (1981). In October 1981, EPA, without explanation, announced that it had cancelled the PSD Set II rule making. 46 Fed.Reg. 54036 (1981). It has taken no action to comply with its statutory duty since that time.

On March 4, 1986, plaintiffs filed suit under 42 U.S.C. § 7604 to compel EPA to comply with its statutory duty to issue PSD regulations for nitrogen oxides. On April 14, 1986, the Court granted the motion to intervene of Alabama Power Company, et al., members of an ad hoc group of utilities ("Power Companies"). On August 5, 1986, the Court granted the State of California ("California") leave to intervene. On October 14, 1986, the Court issued an order requiring the parties to submit evidence supporting their positions as to the length of time to be allowed to defendant to promulgate PSD regulations for nitrogen oxides. The order provided that the time frame for compliance ultimately established by the Court would begin to run on October 9, 1986.

DISCUSSION

It is undisputed that EPA has failed to comply with § 166 and that plaintiffs are entitled to an injunction compelling EPA to perform its statutory duties. The sole question presented therefore is on what terms relief is to be granted, i.e. within what time must EPA promulgate PSD regulations for nitrogen oxides? Plaintiffs contend that defendant must promulgate regulations within the statutory time frame, since defendant has not demonstrated that doing so would be impossible or infeasible. Defendant argues that the Court has discretion in exercising its equitable powers to mandate a reasonable period of time in excess of that allowed by the statute. Defendant proposes a fifty-month schedule and argues that it cannot reasonably issue the regulations in a lesser amount of time.

Plaintiffs' statement of the governing standard is correct. Plaintiffs derive that standard from Natural Resources Defense Council v. Train, 510 F.2d 692 (D.C.Cir. 1975), the leading case on the subject of agency failure to meet statutory deadlines. In Train, the Natural Resources Defense Council brought suit to compel EPA to issue effluent limitation guidelines under the Clean Water Act, which required issuance of the guidelines within one year of its October 1972 enactment. In November 1973, one month after the deadline had passed, the district court ordered EPA to issue the guidelines for all point sources of effluent pollutants within one year. The court of appeals upheld the district court's decree to the extent it applied to point sources identified in the statute, but determined that guidelines for other point sources were not due until December 31, 1974. Id. at 704-10.

Since the EPA indicated that it might not be able to meet even this deadline for some point sources, the court of appeals provided the district court with guidance on remand for evaluating requests for delay. The court identified "two types of restraints which might delay the formulation of adequate guidelines":

First, it is possible that budgetary commitments and manpower demands required to complete the guidelines by December 31 are beyond the agency's capacity or would unduly jeopardize the implementation of other essential programs. Second, EPA may be unable to conduct sufficient evaluation of available control technology to determine which is the best

...