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SIERRA CLUB v. BROWNER

January 29, 2001

SIERRA CLUB, ET AL., PLAINTIFFS,
v.
CAROL M. BROWNER, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Kollar-kotelly, District Judge.

MEMORANDUM OPINION

Seeking relief under the Clean Alr Act, 42 U.S.C. § 7401 et seq. (CAA), Plaintiff's Sierra Club and Missouri Coalition for the Environment filed two separate complaints alleging that Defendant Carol M. Browner, Administrator of the Environmental Protection Agency, had failed to enforce the Act and perform nondiscretionary statutory duties.*fn1 These duties include publication of notice in the Federal Register identifying the St. Louis Nonattainment Area as a region that has failed to attain the applicable standards for ozone pollutants and approval or disapproval of Missouri's revisions to its state implementation plan (SIP) for reducing volatile organic compound emissions.

On January 28, 2000, the Court dismissed one complaint altogether, see Order Granting EPA's Mot. to Dismiss, No. 99-388 (Jan. 28, 2000), and dismissed five of the seven counts contained in the other. See Order Granting in Part and Holding in Abeyance in Part EPA's Mot. for Partial J. on the Pleadings, No. 99-2733 (Jan. 28, 2000).*fn2 Although dispositive motions relating to the other two counts were pending as well, the Court held them in abeyance to allow potential intervenors an opportunity to brief pertinent issues. See id. On February 2, 2000, the Court allowed three additional parties to intervene in the surviving suit and invited them to promptly file responses, if any, opposing or supporting the pending dispositive motions. See Intervention Order, No. 98-2733 (Feb. 2, 2000).*fn3

A variety of motions are currently pending before the Court in the surviving case. First, EPA requests dismissal of Count II for reasons of mootness. See EPA's Mot. to Dismiss Count II; EPA's Mem. in Supp. of Mot. to Dismiss Count II. Sierra Club opposes the motion, see Pls.' Mem. in Opp'n to EPA's Mot. to Dismiss Count II, and EPA has filed a reply. See EPA's Reply Mem. in Supp. of Mot. to Dismiss Count II. Upon consideration of the pleadings and the applicable law, the Court shall grant the motion to dismiss the count. Second, Sierra Club asks the Court to modify its January 28, 2000, rulings in two respects. See Pls.' Mot. for Modification of Op. & Order ¶¶ 2-6. EPA opposes the request. See EPA's Opp'n to Pls.' Mot. for Modification of Op. & Order. Upon review of the pleadings and in light of the Court's decision with respect to Count II, the Court shall grant the motion to modify in part and deny it in part. Finally, the Sierra Club and EPA have submitted cross-motions for summary judgment on Count I. Upon consideration of the thorough briefing supplied by the parties and the intervenors,*fn4 the Court shall grant summary judgment and order the relief described in this opinion.*fn5

I. EPA'S MOTION TO DISMISS COUNT II

The Court turns first to EPA's motion to dismiss Count II in its entirety.*fn6 In that count, Sierra Club argues that EPA failed to perform its non-discretionary duty of approving or disapproving Missouri's proposed SIP within the time period required by section 110(k)(2) of the Clean Alr Act. See Compl. ¶¶ 48-51 (citing 42 U.S.C. § 7410 (k)(2)). Arguing that Missouri's proposal was deficient in several respects, Sierra Club asks the Court to issue a declaratory judgment stating, inter alia, that the proposal does not satisfy the pertinent legal requirements, that EPA failed to act within the statutory time period, and that such inaction amounts to a constructive disapproval. See id. at 16-17, subpara. 1. Additionally, Sierra Club seeks an order requiring EPA to detail the deficiencies in the proposal and formally disapprove it. See id. at 17, subpara. 2.

In its motion to dismiss the count, EPA argues that the CAA allows this Court to grant relief only by requiring EPA to take the non-discretionary step of approving or disapproving the SIP. See EPA's Mem. in Supp. of Mot. to Dismiss Count II at 3. Noting that EPA approved a revised SIP for Missouri since the initiation of this suit, EPA contends that there is no further relief that this Court may grant, regardless of the underlying merits. See id. at 3-4. According to EPA, after the agency has taken the mandatory step of approving or disapproving a plan, parties seeking to overturn the decision are statutorily required to commence such challenges in the federal court of appeals that covers the region in question. See id. at 4. Thus, EPA maintains, this Court has no power to assess the substantive validity of EPA's decision to approve the Missouri SIP. When a court has no power to grant relief, EPA contends, the case is moot, the controversy is not live within the meaning of Article III, and the court lacks jurisdiction to consider the matter. See id. at 3-4; EPA's Reply Mem. in Supp. of Mot. to Dismiss Count II at 2. Without disputing the thrust of EPA's argument, Sierra Club maintains that dismissal of Count II is inappropriate because the time for appellate court review of EPA's substantive decision has not expired. See Pls.' Mem. in Opp'n to EPA's Mot. to Dismiss Count II at 1-2.

Sierra Club's suit, including Count II, arises under 42 U.S.C. § 7604 (a)(2), which grants a private right of action against the EPA 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." 42 U.S.C. § 7604 (a)(2); see Compl. ¶ 2. The Court's power to grant relief in such suits is limited to "order[ing] the Administrator to perform such act or duty [or] compel[ling] . . . agency action unreasonably delayed." 42 U.S.C. § 7604 (a). In other words, this Court's power is limited to requiring EPA to undertake the nondiscretionary duty at issue. In this case, that duty involves the timely approval or disapproval of Missouri's SIP proposal within the statutory time period. See 42 U.S.C. § 7410 (k)(2) ("the Administrator shall act on the submission" within twelve months of a determination that the plan meets general completeness criteria) (emphasis added).

As EPA notes in its motion, the agency has now taken that nondiscretionary step. See EPA's Mem. in Supp. of Mot. to Dismiss Count II at 3-4. On May 18, 2000, it published a notice in the Federal Register approving a revised SIP submitted by Missouri. See 65 Fed.Reg. 31,485. Since the Court's power is limited to ordering EPA to take nondiscretionary action, and since EPA has taken that action by approving the Missouri SIP, the Court is without power to grant meaningful relief with regard to Count II. In its opposition, Sierra Club appears to dispute the logic and validity of EPA's decision to approve the SIP. See Pls.' Mem. in Opp'n to EPA's Mot. to Dismiss Count II at 1. However, as EPA argues, this Court is precluded from assessing the substance of the agency's decision. Such review is reserved for the federal court of appeals responsible for the region covered by the particular SIP. See 42 U.S.C. § 7607 (b)(1); Navistar Int'l Transp. Corp. v. EPA, 941 F.2d 1339, 1341 (6th Cir. 1991) ("The EPA's determination is a final agency action subject to judicial review in the courts of appeals under [42 U.S.C. § 7607 (b)(1)]").*fn7

As noted, Sierra Club opposes EPA's motion with the argument that dismissal would be premature because the appropriate court of appeals may yet have occasion to rule on the validity of EPA's action. This argument is unavailing because it attempts to root this Court's jurisdiction in the speculative possibility that a final agency action will be overturned. The Court, which must remain vigilantly aware of its constitutional limitations, assesses the contours of its jurisdictional reach with respect to the actual, non-speculative facts before it. If a controversy is not actual and live, the Court is without jurisdiction to entertain the matter, even if it is possible that some later, independent action may dispel any mootness. Accordingly, in light of the Court's jurisdictional limitations with regard to Count II, the Court shall dismiss it pursuant to Rule 12(b)(1).

II. SIERRA CLUB'S MOTION TO MODIFY

In its motion to modify, Sierra Club asks the Court to revise its January 28, 2000, Memorandum Opinion and Order in two respects. First, Sierra Club notes that the Court ordered that the then-pending motion for partial judgment would be held in abeyance with respect to Count I. See Pls.' Mot. for Modification or Op. & Order ¶ 2. The parties agree, as does the Court, that the partial judgment motion in question did not seek judgment with regard to Count I. See id.; EPA's Opp'n to Pls.' Mot. for Modification of Op. & Order at 2. In other words, the Court's inadvertent inclusion of Count I in its Order was a mistake. Neither party contends that this mistake has impacted this litigation in any sense. The Court shall rectify it by ordering an amendment of its January 28, 2000, Order that deletes reference to Count I.

In its second request, Sierra Club asks the Court to reinstate Count VI, which the Court dismissed along with Counts III, IV, V and VII in its January 28, 2000, Memorandum Opinion and Order. See Pls.' Mot. for Modification or Op. & Order ¶ 2. Count VI requests the imposition of sanctions stemming from the violations described in Counts II, III, IV and V. See id. ¶ 3. In the January 28, 2000, Memorandum Opinion, the Court determined that EPA was entitled to judgment with respect to Counts III, IV and V, and therefore reasoned that Count VI, which contained a derivative request for sanctions, should be dismissed as well. See January 28, 2000, Mem. Op. at 5-6. As Sierra Club notes, however, the Court did not render judgment with respect to Count II. See Pls.' Mot. for Modification or Op. & Order ¶ 4. Therefore, since Count VI was at least partially derivative of the allegations contained in Count II, the Court should not have disposed of Count VI altogether. See id. ¶¶ 5-6.

III. CROSS MOTIONS ON COUNT I

Following the Court's disposition of Counts III, IV, V, VI and VII on January 28, 2000, and its dismissal of Count II today, all that remains of Sierra Club's complaint is Count I. In that count, Sierra Club asserts that EPA has failed to perform nondiscretionary duties pertaining to the efforts of the air quality control region around St. Louis to comply with air quality standards for ozone. In particular, Sierra Club contends that although EPA has determined that the St. Louis Nonattainment Area (NAA) has failed to meet the standards, it has not undertaken the nondiscretionary steps that flow from that determination. Sierra Club seeks summary judgment with respect to this Count.*fn9 In a cross-motion, EPA concedes failure to perform nondiscretionary duties, but proposes relief different from that requested by Sierra Club. Each of the intervenors argues that the Court should award the relief proposed by EPA.

Rule 56(c) of the Federal Rule of Civil Procedure requires a court to grant judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); see also Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir. 1994). Although the court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct 2505, 91 L.Ed.2d 202 (1986). The adverse party's pleadings must evince the existence of a genuine issue of material fact. See id. at 247-48, 106 S.Ct. 2505.

To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence such that a reasonable trier-of-fact could find for the nonmoving party. See id.; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C.Cir. 1987). Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment. Rather, the nonmoving party bears the affirmative duty to present, by affidavits or other means, specific facts showing that there is a genuine issue for trial. See id. at 1248-49. The adverse party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A. Pertinent Facts and Statutory Scheme

Congress enacted the Clean Air Act "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401 (b)(1). In keeping with that statutory purpose and the Act's more specific requirements, EPA has developed National Ambient Air Quality Standards (NAAQSs) for a variety of pollutants, including ozone. See 42 U.S.C. § 7408 (a)(1)(A), 7409(b)(1); 36 Fed Reg 8189 (April 30, 1971) (first NAAQS promulgated for ozone). Under the EPA's revised NAAQS for ozone that currently covers St. Louis and the surrounding area,*fn10 the region is in violation if its hourly average concentration of ozone exceeds 0.12 parts per million more than one time each year. See 36 Fed Reg 8189 (April 30, 1971); 44 Fed Reg 8202 (February 8, 1979). The CAA requires states to develop SIPs outlining the steps to be undertaken to bring a particular NAA's air quality into compliance with the applicable standard. See 42 U.S.C. § 7410 (a)(1).

Congress amended the CAA in 1990, in part in order to "revise the timing and content of the SIP requirements and provide new incentives and sanctions to encourage state compliance." Natural Resources Defense Council v. Browner, 57 F.3d 1122, 1123 (D.C.Cir. 1995). The amendments required the EPA to place each NAA into one of five categories of attainment depending on the regions s air quality as of November 15, 1990. They also required that, in its preparation of a SIP describing plans to reduce the concentration of pollutants, a state must meet particularized requirements depending on the NAA's categorization. See 42 U.S.C. § 7511, 7511a.

In keeping with the 1990 amendments, on November 6, 1991, the EPA Administrator published notice in the Federal Register categorizing the St. Louis NAA as "moderate." See Sierra Club's Statement of Material Facts ¶ 20; EPA's Statement of Material Facts at 10; 56 Fed.Reg. 56,-694 (Nov. 6, 1991). Accordingly, pursuant to 42 U.S.C. § 7511 (a)(1), the St Louis NAA was statutorily required to satisfy the prescribed ozone standards no later than November 15, 1996, the applicable attainment date. See 42 U.S.C. § 7511 (a)(1); Sierra Club's Statement of Material Facts ¶ 21; EPA's Statement of Material Facts at 10.

Section 7511(b)(2)(A) required EPA to determine, within six months of that attainment date, whether the NAA had complied.*fn11 A determination of nonattainment would automatically bump the NAA to the next higher classification, in this case "serious," by operation of law. See 42 U.S.C. § 7511 (b)(2)(A)(i). Within the same six month period after the attainment date, EPA was required to publish a notice in the Federal Register identifying any NAAs that had failed to attain and identifying resulting reclassifications. See 42 U.S.C. § 7511 (b)(2)(B).

In October 1996, the Missouri Department of Natural Resources (MDNR) informed EPA that the St. Louis NAA would not meet the relevant standards by the attainment date of November 15, 1996. See Sierra Club Statement of Material Facts ΒΆΒΆ 22, 23, Ex. 1 (letter from MDNR to EPA). MDNR accordingly sought a one-year extension, which EPA has never subsequently granted. See Sierra Club Statement of ...


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