The Court finds that nunc pro tunc relief is not fitting in this Clean
Air Act case. Preliminarily, the Court observes that its limited
statutory authority under 42 U.S.C. § 7604 (a) vests only after EPA
has failed to undertake some mandatory action prior to a certain
deadline. (The Court has no such authority prior to the expiration of a
deadline because, in advance of a deadline's expiration, the agency has
not yet failed to undertake its duty.) In other words, the Court's power
to grant relief in cases such as this one arises only in situations in
which the administrator should have taken action in the past.
Interestingly, however, even though the CAA envisions relief following
EPA's failure to take nondiscretionary steps by deadlines in the past,
the statute does not expressly allow for nunc pro tunc relief. See
42 U.S.C. § 7604 (a). Further, none of the parties to this suit refer
the Court to a single case in which a court, exercising jurisdiction
under section 7604(a)(2), granted nunc pro tunc relief relating back to
the missed deadline. On the other hand, several courts have issued orders
requiring EPA to undertake nondiscretionary actions without requiring
retroactivity to the deadline that has passed. See, e.g., Sierra Club v.
Thomas, 658 F. Supp. 165, 171 (N.D.Cal. 1987); New York v. Thomas,
613 F. Supp. 1472, 1476, 1481-86 (D.D.C. 1985), rev'd on other grounds.
Thomas v. State of New York, 802 F.2d 1443 (D.C.Cir. 1986). Accordingly,
this Court is not persuaded that nunc pro tunc relief is required simply
because EPA missed the deadlines clearly established by the CAA.
In support of its request for nunc pro tunc relief, Sierra Club turns
to Ethyl Corp. v. Browner, 67 F.3d 941 (D.C.Cir. 1995), a CAA case in
which the D.C. Circuit required EPA to issue a waiver nunc pro tunc
allowing distribution of a fuel additive known as MMT. See id. at
941-42. Notwithstanding Ethyl's seeming applicability in this case, the
appeals court's decision to grant the exceptional relief was rooted in
factors not present here. First, unlike this Court, the Ethyl court was
not considering a grant of relief under section 7604(a)(2) following
EPA's failure to perform a nondiscretionary duty. Second, the Ethyl court
granted relief retroactively because, it concluded, EPA had long since
formally determined that the fuel additive in question satisfied the only
requirement for receiving a waiver. See id. at 943-44 ("[O]n November
30, 1993, EPA found that MMT did not `cause or contribute' to the failure
of emissions controls systems — the sole criterion for granting a
waiver."). In this case, by contrast, EPA has not reached final
conclusions or findings of fact that would necessarily trigger further
action under the Act. To the contrary, as already noted, EPA continues to
mull the attainment data for the St. Louis NAA, its interplay with the
NOx SIP Call Rule, and applicable public comments. Because there has been
no triggering finding of fact or final determination, the relief granted
in Ethyl does not fit the facts of this case. Finally, nunc pro tunc
relief was appropriate in Ethyl only because the D.C. Circuit "has
extended the traditional doctrine to embrace agency conduct, where
necessary to put the victim of agency error `in the economic position it
would have occupied but for the error.'" Id. at 945. In this case, by
contrast, Sierra Club has not demonstrated that EPA's failure has caused
economic harm, nor that nunc pro tunc relief would satisfactorily reverse
The matter before this Court is more in keeping with the Supreme
Court's analysis in Weinberger v. Romero-Barcelo, 456 U.S. 305, 102
S.Ct. 1798, 72 L.Ed.2d 91 (1982). In that case, the "Supreme Court
determined that, under the watchful eye of an equity court, technical
statutory directives should give way when they clash with the underlying
purposes of the legislation in question. See id. at 313-14, 102 S.Ct.
1798; see also Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 543,
107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). The CAA, the statute at issue in
this case, was enacted in order to afford the national population relief
from airborne pollutants.
See 42 U.S.C. § 7401 (b). In keeping with the statutory mandate, EPA
works together with states and localities in an effort to fulfill the
CAA's purpose. In part, EPA's efforts at reducing airborne pollutants
requires it to assess the manner in which upwind pollutants affect
downwind regions. As noted, in keeping with that effort, EPA has
promulgated the NOx SIP Call Rule, which, in pertinent part, the D.C.
Circuit upheld in the face of petitions for review. See Michigan v. US.
EPA, 213 F.3d 663 (D.C.Cir. 2000). This consideration — adequately
accounting for upwind pollution prior to assessing a downwind NAA's clean
air efforts — is the reason that EPA has not yet issued its
determination. See EPA's Mem. in Opp'n to Pls.' Mot. for Summ. J. on
Count I and in Supp. of Cross-Mot. for J. on Remedy at 7-9. EPA's efforts
in this regard are directly tied to the statutory purpose of
"protect[ing] and enhanc[ing] the quality of the Nation's air resources."
42 U.S.C. § 7401 (b)(1). Accordingly, in keeping with Romero-Barcelo
and distinct from Ethyl, the Court shall not order that EPA issue its
determination and any resulting publication nunc pro tunc.
The Court is further persuaded to deny the requested nunc pro tunc
relief because granting it could "create . . . an injustice at the hands
of the court itself" Weil, 898 F.2d at 201. As EPA and the State of
Missouri contend, granting nunc pro tunc relief could throw the St. Louis
NAA into extreme noncompliance. See EPA's Mem. in Opp'n to Pls.' Mot. for
Summ. J. on Count I and in Supp. of Cross-Mot. for J. on Remedy at 22;
State of Missouri's Responses to Pending Dispositive Mots. Filed by the
Parties at 6-8. If EPA were to determine, nunc pro tunc, that the NAA had
not attained the requisite ozone standards, the NAA would be
automatically reclassified as a "serious" region as of May 15, 1997. See
42 U.S.C. § 7511 (b)(2)(A). That reclassification would carry with it
a battery of new requirements, see 42 U.S.C. § 7511a (c), (i),
including a new, inflexible, and expired attainment date of November 15,
1999. See 42 U.S.C. § 7511 (a)(1). By possibly imposing a new
classification that carries with it a deadline that has already expired,
the Court could potentially expose the State of Missouri to a variety of
sanctions for failing to comply promptly and adequately. See, e.g.,
42 U.S.C. § 7509 (a), (b). In other words, by finding that EPA had
failed in its duty and by granting nunc pro tunc relief, the Court could
effectively penalize the state and local entities that are required to
comply with EPA findings. Thus, the Court determines that requiring a
nunc pro tunc determination would effectively create in an injustice with
regard to the state and the NAA. Accordingly, in keeping with Weil, the
Court shall refrain from ordering EPA to reach a formal determination
nunc pro tunc.
b. EPA's Proposed Schedule for Compliance
Contrary to Sierra Club's request for retroactive relief, EPA and the
intervenors ask the Court to issue an order that allows the agency to
further delay its determination. See EPA's Mem. in Opp'n to Pls.' Mot.
for Summ. J. on Count I and in Supp. of Cross-Mot. for J. on Remedy at
24-28; AIM/AGC Intervenors' Mem. of P. & A. in Response to Dispositive
Mots. on Counts I & II at 2, 9-13, 34-40. In its most recently revised
proposal, EPA seeks the Court's approval to wait until June 29, 2001, and
possibly until June 22, 2002, before issuing the determination and
resulting publication that the statute required by May 15, 1997. EPA
argues that this delayed scheduled is the result of the D.C. Circuit's
order of August 30, 2000, in which the court extended, by one year, the
time in which upwind states must satisfy the NOx SIP Call Rule, which
accounts for the effect that upwind pollutants have on downwind NAAs.
See EPA's Mot. for Leave to File Supplemental Decls. Ex. 1 at 5-6
(Statement of William A. Spratlin); Michigan v. EPA, No. 98-1497, 2000 WL
1341477 (D.C.Cir. Aug. 30, 2000).
The extended compliance schedule that EPA seeks is not warranted.
Nothing in the statute affords the Court any flexibility with regard to
developing an alternative timing schedule that bends along with a state's
efforts and EPA's reactions thereto. While the Court is unwilling to
grant the exceptional relief of ordering nunc pro tunc determination and
publication, it is similarity unwilling to allow EPA to continue to delay
the nondiscretionary duty that the statute imposes. In fact, allowing for
the flexible schedule with alternative deadlines that EPA proposes would
effectively amount to condoning a fully discretionary approach to a
nondiscretionary duty. Notwithstanding the extent of its authority to
fashion appropriate equitable relief, the Court is unwilling to order a
remedy that would so completely neutralize the mandatory nature of the
statutory directive. The statutory duty is not simply to "determine" and
"publish" in the abstract. It is to "determine" and "publish" by a date
certain. See Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C.Cir. 1987).
While the Court will not impose the nunc pro tunc relief that Sierra Club
requests, neither will it permit EPA to select the date by which it will
comply. Accordingly, the agency's request for an order imposing the
proposed alternative schedule shall be denied.
c. Timing of Determination and Resulting Publication, If Any
The Court has decided not to require EPA to issue a formal
determination nunc pro tunc and not to allow EPA an extended future
schedule within which to comply. Accordingly, EPA must reach its
statutorily required determination promptly. The Court shall allow the
agency an additional forty-five days within which to assess pertinent
data and comments. Thus, no later than March 12, 2001, EPA shall formally
determine, pursuant to 42 U.S.C. § 7511 (b)(2)(A), whether the St.
Louis NAA attained the requisite ozone standards. Furthermore, the Court
shall require that, no later than March 12, 2001, EPA must publish any
notices required by 42 U.S.C. § 7511 (b)(2)(B).
For the foregoing reasons, the Court shall (1) grant EPA's motion to
dismiss Count II; (2) grant in part and deny in part Sierra Club's motion
to modify the Court's Order issued January 28, 2000; (3) grant Sierra
Club's motion for summary judgment, yet deny the requested relief; (4)
deny the EPA's motion for summary judgment as to remedy; (5) deny the
State of Illinois' motion for summary judgment as to remedy; (6) order
EPA to reach a final determination with respect to the St. Louis NAA's
attainment no later than March 12, 2001; (6) order EPA to publish, no
later that March 12, 2001, any notices that are statutorily required as a
result of its determination; and (7) deny the AIM/ AGC Intervenors'
motion to dismiss and/or strike for lack of subject matter jurisdiction.
An Order accompanies this Memorandum Opinion.
For the reasons stated in the accompanying Memorandum Opinion, it is,
this 26 of January, 2001, hereby
ORDERED that Defendant EPA's[fn1a] Motion to Dismiss Count II [#136] is
GRANTED; it is further
ORDERED that, to the extent that it seeks amendment of the Court's
treatment of Count I in its January 28, 2000, Order, Plaintiff Sierra
Club's Motion for Modification of Opinion and Order [#109] is GRANTED.
Accordingly, the phrase in the January 28, 2000 Order that reads "HELD IN
ABEYANCE as to Counts I-II" is hereby amended so that it reads
"HELD IN ABEYANCE as to Count II." It is further
ORDERED that, to the extent that it seeks reinstatement of Count VI,
Sierra Club's Motion for Modification of Opinion and Order [#109] is
DENIED AS MOOT; it is further
ORDERED that Sierra Club's Motion for Summary Judgment on Count I [#23]
is GRANTED but that Sierra Club's requested relief is DENIED; it is
ORDERED that EPNs Cross-Motion for Judgment on Remedy Under Count I
[#61] is DENIED; it is further
ORDERED that Illinois' Cross-Motion for Summary Judgment on Count I
Remedy [#122] is DENIED; it is further
ORDERED that, in keeping with the entry of summary judgment in favor of
Sierra Club and pursuant to 42 U.S.C. § 7511 (b)(2)(A), EPA shall, no
later than March 12, 2001, DETERMINE whether the St. Louis Nonattainment
Area attained the applicable ozone standard; it is further
ORDERED that, pursuant to 42 U.S.C. § 7511 (b)(2)(B), EPA shall, no
later than March 12, 2001, PUBLISH NOTICE, if any, required as a result
of its determination; it is further
ORDERED that the AIM/AGC Intervenors' Motion to Dismiss and/or Strike
for Lack of Subject Matter Jurisdiction is DENIED [#118]; it is further
ORDERED that the Complaint is dismissed and that this is a final,