State of Me. v. Thomas

• Decision Date: 27 July 1988
• Docket Number: Civ. No. 87-0204-P.
• Citation: 690 F. Supp. 1106
• Parties: STATE OF MAINE, et al., Plaintiffs, v. Lee M. THOMAS, Administrator United States Environmental Protection Agency, Defendant.
• Court: U.S. District Court — District of Maine

690 F. Supp. 1106

STATE OF MAINE, et al., Plaintiffs, v. Lee M. THOMAS, Administrator United States Environmental Protection Agency, Defendant.

Civ. No. 87-0204-P.

United States District Court, D. Maine.

July 27, 1988.

James E. Tierney, Gregory W. Sample, Asst. Atty. Gen., Office of Atty. Gen., Augusta, Me., Jeffrey L. Amestoy, J. Wallace

Malley, Office of Atty. Gen., Montpelier, Vt., Robert Abrams, David R. Wooley, Michael Moore, Office of Atty. Gen., Albany, N.Y., James M. Shannon, Janet McCabe, Office of the Atty. Gen., Boston, Mass., W. Cary Edwards, Paul Schneider, Office of Atty. Gen., Trenton, N.J., Joseph Lieberman, Brian Comerford, Office of Atty. Gen., Hartford, Conn., Thomas C. Newman, Portland, Me., James E. O'Neil, Gary Powers, Office of Atty. Gen., Providence, R.I., Howard I. Fox, Sierra Club Legal Defense, Washington, D.C., Michael Herz, Environmental Defense Fund, New York City, Armond Cohen, Conservation Law Foundation of New England, Boston, Mass., for plaintiffs.

John A. Amodeo, U.S. Dept. of Justice, Environmental Defense Section, Washington, D.C., Gregory B. Foote, Office of Gen. Counsel, U.S. EPA, Washington, D.C., Pamela Hill, U.S. EPA, Boston, Mass., David R. Collins, Asst. U.S. Atty., Portland, Me., for defendant.

GENE CARTER, District Judge.

MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANT'S AND DEFENDANT-INTERVENORS' MOTION TO DISMISS

Seven Northeastern states and six environmental groups¹ have brought an action for declaratory judgment and injunctive relief which requests the court to compel the Environmental Protection Agency (EPA) to promulgate additional air pollution regulations for the protection of visibility in federal parks and wilderness areas. Pursuant to this court's order granting the defendant's motion to bifurcate, the legal issues of liability and appropriate standards for any rulemaking schedule will be decided first; if the defendant is found liable, the court will then, in the second stage of the proceeding, make factual determinations regarding the proper remedy. Before the court now are the plaintiffs' motion for summary judgment and the defendant's and the defendant-intervenors'² (Utilities) motion to dismiss or for summary judgment.

This action arises under § 169A of the Clean Air Act which is entitled "Visibility Protection of Federal Class I Areas,"³ and which sets forth as a national goal "the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from manmade air pollution." 42 U.S.C. § 7491(a)(1).⁴ The statute requires that:

Not later than twenty-four months after August 7, 1977, and after notice and public hearing, the Administrator shall promulgate regulations to assure (A) reasonable progress toward meeting the national goal specified in paragraph (1) and (B) compliance with the requirements of this section....

In determining reasonable progress there shall be taken into consideration the costs of compliance, the time necessary for compliance, and the energy and nonair environmental impacts of compliance, and the remaining useful life of any existing source subject to such requirements.

42 U.S.C. § 7491(a)(4), (g)(1). The Clean Air Act provides that any citizen may bring a civil action in federal district court "against the 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," § 7604(a)(2); for purposes of § 7604, "the meeting of the national goal specified in § 7491(a)(1), supra by any specific date or dates shall not be considered a `nondiscretionary duty' of the Administrator." § 7491(f). A petition for review of "any final action taken by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia." § 7607(b), (e).

In December, 1980,⁵ pursuant to § 7491(a)(4) and in an action entitled "Final Rulemaking," the EPA promulgated regulations "to assure reasonable progress" toward the § 7491(a)(1) national goal. See 45 Fed.Reg. 80,084. In these regulations, the EPA recognized two types of air pollution which impair visibility, plume blight and regional haze,⁶ and adopted a phased approach to the prevention and remedying of such pollution. The regulations themselves (Phase I) address only "impairment that can be traced to a single existing stationary facility or small group of existing stationary facilities," while specifically reserving for future phases "more complex problems such as regional haze and urban plumes.... when improvement in monitoring techniques provides more data on source-specified levels of visibility impairment, regional scale models become refined, and ... scientific knowledge about the relationships between emitted air pollutants and visibility impairment improves." 45 Fed.Reg. 80,086.⁷ The EPA explicitly declined to adopt a schedule or deadline for any subsequent phase. Defendant's Exhibit L, Summary of Comments and Responses.

In their complaint, the plaintiffs allege that under § 7491(a)(4) the EPA had a nondiscretionary duty to issue regulations "to achieve the visibility goal"⁸ by August 7, 1979, Complaint ¶ 16; that the December, 1980 Phase I regulations are not "a full response to that nondiscretionary directive," Complaint ¶ 17; that the EPA's eight-year failure to implement subsequent phases is also a failure to perform a § 7491(a)(4) nondiscretionary duty, Complaint ¶ 18; and that this failure

subjects plaintiffs to certain visibility impairment impacts ... and further harms plaintiffs by depriving them of (a) the statutory benefits conferred by 42 U.S.C. § 7491, (b) in the case of plaintiff states, the ability to devise effective visibility protection programs to address impairment in Mandatory Class I Areas, (c) the right to be protected by the federal visibility enforcement efforts of the Environmental Protection Agency, and (d) the right to bring plaintiffs' own visibility enforcement actions pursuant to 42 U.S. C. § 7604.

Complaint ¶ 12. The plaintiffs request summary judgment based on the court's declaration that the EPA had a nondiscretionary duty to issue complete visibility impairment regulations, including regional haze regulations, by August 7, 1979.

The defendant and the defendant-intervenors have moved to dismiss the complaint based on lack of subject matter jurisdiction under § 7604, arguing that § 7491 does not require the EPA to regulate specific kinds of air pollution but only to issue regulations which assure "reasonable progress" toward the national visibility protection goals, a requirement fulfilled by the Phase I regulations. Both the EPA and the Utilities have also moved for summary judgment based either on collateral estoppel, arguing that the claim is actually a challenge to the 1980 regulations, or on res judicata grounds, arguing that this claim and these plaintiffs are virtually identical to an earlier claim brought by another environmental group, Friends of the Earth, and settled by consent decree, see n. 5, supra.

The court first addresses the jurisdictional issue since it is potentially dispositive of all other issues and motions. When a party challenges the actual existence of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), as opposed to a challenge to the facial sufficiency of the complaint, the burden of proving jurisdiction is on the pleader. Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939); Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir.1977); Wright & Miller, Federal Practice and Procedure § 1350 (1969). In such a case, the court does not draw inferences favorably to the pleader but should consider any material outside the pleadings submitted by the pleader and the movant.⁹ Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Cloutier v. Town of Epping, 547 F.Supp. 1232, 1239 (D.N.H.1982); Wright and Miller, supra. When a claim is brought under a specific federal statute, rather than under the general federal question statute, the court must determine whether the pleader has met the jurisdictional requirements of that statute. Wright & Miller, supra, § 1210.

Here, the plaintiffs rely¹⁰ on 42 U.S.C. § 7604, which requires that a Clean Air Act civil suit brought in federal district court allege "a failure of the Administrator to perform any act or duty which is not discretionary with the Administrator." Thus the plaintiffs must first show that their claim is not a petition for review of "any final action taken by the Administrator" properly brought under § 7607, and then must show that promulgation of the requested additional regulations is nondiscretionary, or mandatory, under § 7491.

The plaintiffs concede that the Administrator had no mandatory duty to issue regulations which achieved the § 7491(a)(1) national goal by any date. § 7491(f).¹¹ It is clear that the Administrator's only mandatory duty was the timely issuance of regulations which "assure reasonable progress" toward that goal. § 7491(a)(4).¹² The parties agree that in December, 1980, the Administrator did issue some plume blight regulations and adopted a phased approach with no deadline as to other types of air pollution. The issues thus are whether the Administrator's deferral of additional regulations was a "final action," and if not, whether the term "reasonable progress" is intended to measure the adequacy of the Administrator's Phase I regulations in the context of a § 7604 action. Determination of the finality of an action is important because the 1977 Clean Air Act amendments to § 7607 expanded appellate court review to include "any ... final action of the Administrator," § 7607(b)(1); judicial review of final regulations or orders of the Administrator rests exclusively with the appellate court under § 7607(e). Thus, if jurisdiction exists under § 7607, it cannot be...