WildEarth Guardians v. Jackson

• Decision Date: 07 May 2012
• Docket Number: Case Nos. 11–cv–5651–YGR, 11–cv–5694–YGR.
• Citation: 870 F.Supp.2d 847
• Parties: WILDEARTH GUARDIANS, Plaintiff, v. Lisa JACKSON, in her official capacity as Administrator of the Environmental Protection Agency, Defendant.
• Court: U.S. District Court — Eastern District of California

870 F.Supp.2d 847

WILDEARTH GUARDIANS, Plaintiff,

v.Lisa JACKSON, in her official capacity as Administrator of the Environmental Protection Agency, Defendant.

Case Nos. 11–cv–5651–YGR, 11–cv–5694–YGR.

United States District Court, N.D. California.

May 7, 2012.

James Jay Tutchton, WildEarth Guardians, Centennial, CO, Robert Steven Ukeiley, Berea, KY, for Plaintiff.

Eileen Therese McDonough, Environmental Defense Section, Washington, DC, for Defendant.

Order Granting Defendant's Motions to Dismiss Mandatory Duty Claims

YVONNE GONZALEZ ROGERS, District Judge.

Plaintiffs Midwest Environmental Defense, Sierra Club and WildEarth Guardians (collectively “Plaintiffs”), filed these now-consolidated actions pursuant to the citizen suit provision of the Clean Air Act, 42 U.S.C. § 7604(a)(2), to compel Defendant Lisa Jackson, in her official capacity as Administrator of the Environmental Protection Agency (“EPA”), to review and, if necessary, promulgate regulations “to prevent significant deterioration of air quality which would result from the emissions of” identified pollutants, specifically photochemical oxidants, or ozone.¹42 U.S.C. § 7476(a). Plaintiffs argue that because the statute creates a non-discretionary duty to review and promulgate such regulations, injunctive relief is proper. 42 U.S.C. § 7410(k)(1)(B).

EPA brings this motion to dismiss the Plaintiffs' claims for failure to promulgate regulations concerning prevention of significant deterioration with respect to revised ozone air quality standards.² EPA moves under Rule 12(b)(1) arguing that, based upon the clear provisions of the statute itself, the duty at issue is discretionary, not mandatory. EPA argues that it previously complied with the statute when it promulgated prevention of significant deterioration (“PSD”) regulations for ozone, and that the statute does not create a mandatory duty to update or revise the PSD rules simply because the national ambient air quality standards (“NAAQS”) for ozone have been revised subsequently. As a consequence, EPA argues that there is no mandatory duty at issue and the Court is without subject matter jurisdiction under the citizen suit provisions.

Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth more fully below, the Court finds that the language of the statute when read in the context of the language of the Clean Air Act in its entirety, does not create a non-discretionary duty to act as Plaintiffs allege. Accordingly, the motion to dismiss is GRANTED.

A. Background: The Clean Air Act

In 1970, Congress enacted broad-sweeping amendments to the Clean Air Act, 42 U.S.C. § 7401 et seq., to “guarantee the prompt attainment and maintenance of specified air quality standards.” Alaska Department of Environmental Conservation v. EPA, 540 U.S. 461, 469, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004) (quoting Union Elec. Co. v. EPA, 427 U.S. 246, 249, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976) (“ADEC ”)). Congress enacted the amendments to facilitate the “prompt attainment” and maintenance of those air quality standards. Id. It imposed numerous mandatory deadlines on the EPA and created a citizen suit provision, 42 U.S.C. § 7604(a)(2), to allow the public to enforce those deadlines.

When passed initially, the Clean Air Act enjoyed broad bipartisan congressional majorities with Republican presidents spearheading enforcement. See Richard N.L. Andrews, The EPA at 40: An Historical Perspective, 21 Duke Envtl. L. & Pol'y F. 223 (2011). Congress charged the EPA with setting national ambient air quality standards (“NAAQS”) for certain specified pollutants based on criteria, and with an adequate margin of safety, to protect the public health and welfare from the adverse effects of those pollutants in ambient air. 42 U.S.C. § 7409(b). Given the focus on public health in setting the NAAQS, EPA was prohibited from conducting any cost-benefit analysis. Whitman v. American Trucking Assocs. Inc., 531 U.S. 457, 467–68, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001).

Pursuant to the statutory scheme, Congress then instructed states to create state-specific plans to ensure the attainmentor maintenance of the NAAQS, now commonly referred to as SIPs or state implementation plans. ADEC, supra, 540 U.S. at 470, 124 S.Ct. 983. While the Clean Air Act required inclusion of certain universal components in each SIP, it afforded the states discretion to create an appropriate plan, so long as the SIPs achieved the articulated standards for clean air. Id. To ensure achievement of those standards, the Clean Air Act required that the EPA evaluate each state plan's sufficiency under the Act. 42 U.S.C. § 7410(k)(1)-(3).

In 1977, Congress further amended the Clean Air Act to add requirements designed to ensure not only that certain air quality standards were attained, but also that the air quality in areas which met the standards would not degrade or backslide. ADEC, supra, 540 U.S. at 470–71, 124 S.Ct. 983. The Clean Air Act Amendments of 1977 added provisions requiring states to establish in their SIPs specific programs to “prevent” the “significant deterioration” of air quality where pollutant levels were lower than the NAAQS. Id. at 470, 124 S.Ct. 983;see also42 U.S.C. §§ 7470 et seq. (Prevention of Significant Deterioration program).³ These programs, commonly known as “PSD programs,” are tied directly to the NAAQS. Each SIP must include “emission limitations and such other measures as may be necessary, as determined under regulations promulgated under this part, to prevent significant deterioration of air quality.” 42 U.S.C. § 7471. States control emissions from facilities therein by way of permitting requirements. ADEC, supra, 540 U.S. at 472, 124 S.Ct. 983. “Major emitting facilities” cannot be constructed or modified unless a permit prescribing emission limitations has been issued, and “... a PSD permit may issue only if a source ‘will not cause, or contribute to, air pollution in excess of any ... maximum allowable increase or maximum allowable concentration [i.e., “increment”] for any pollutant’ ” or any NAAQS. Id. (quoting 42 U.S.C. §§ 7475(a)(1), 7475(a)(3)).

As to certain pollutants (sulfur oxide and particulate matter), Congress itself established the maximum allowable increases and concentrations. 42 U.S.C. § 7473 (establishing specific standards expressed in micrograms per cubic meter). As to other pollutants, including ozone, Congress charged EPA with promulgating PSD regulations that would “provide specific numerical measures against which permit applications may be evaluated, a framework for stimulating improved control technology, protection of air quality values, and fulfill the goals and purposes set forth” in the PSD program. 42 U.S.C. § 7476(a), (c). “Though Congress contemplated that EPA might use increments for [them], it did not require their use.” Envtl. Def. Fund, Inc. v. Adm'r, U.S. E.P.A., 898 F.2d 183, 185 (D.C.Cir.1990) (“EDF ”).

In the PSD regulations promulgated under this authority, EPA set maximum allowable increases, or “increments,” for some pollutants based on a mathematical relationship to each pollutant's NAAQS. See, e.g.75 Fed.Reg. 64,864, 64,885 (Oct. 20, 2010) (EPA calculated the increments as a percentage of the national ambient air quality standard, consistent with the approach Congress used in the Clean Air Act itself); 50 Fed.Reg. 13,130, 13,148 (April 2, 1985) (explaining that increments to implement PSD requirements were based on “specific percentages of the lowest NAAQS concentration”); 52 Fed.Reg. 24,678, 24,685 (July 1, 1987) (explaining that increments were created by “taking a percentage of the lowest NAAQS concentration for each measurement period ...”). The EPA also established de minimis thresholds which set specific values, in relation to each pollutant's NAAQS, below which the pollutant is not considered to cause or contribute to a violation of the NAAQS or to an established increment. These increments and de minimis thresholds are then used by the states to calibrate their SIP requirements. Both are appropriate. EDF, supra, 898 F.2d at 185 (Congress did not require setting of increments).

The parties do not disagree that EPA has previously issued PSD regulations with respect to ozone. Although EPA has apparently never set an increment for ozone, it has set a de minimis threshold.⁴

B. Issue Presented and Legal Standard.

The question facing the Court is whether the language of Section 166(a) of the Clean Air Act mandates that the EPA promulgate additional regulations for ozone in light of the revised NAAQS issued on March 27, 2008.⁵ If there is no mandatory duty to promulgate additional regulations, the Court has no jurisdiction under the citizen suit provisions, and the claims must be dismissed for lack of jurisdiction.

In interpreting the statute defining the nature of EPA's duty, the Court's analysis begins “where all such inquiries must begin: with the language of the statute itself.” United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); see also In re Google Inc. Street View Electronic Communications Litig., 794 F.Supp.2d 1067, 1074–75 (N.D.Cal.2011). Where the language of the statute is plain, it is also where the inquiry should end: “the sole function of the courts is to enforce [the statute] according to its terms,” assuming that an absurd interpretation does not result. Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917); Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000).

C. Analysis of the Statute at Issue.

1. Plain Language of the Statute.

The Clean Air Act contains three primary sections.⁶ As part of the section concerning the prevention of significant deterioration of air quality, Title 42 U.S.C. 7476(a), commonly referred to as Section 166(a), provides as follows:(a) Hydrocarbons, carbon...