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New York Public Interest Research Group, Inc. v. Whitman

August 22, 2002

NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC., PLAINTIFF,
v.
CHRISTINE T. WHITMAN, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS.
SIERRA CLUB PLAINTIFF,
v.
CHRISTINE T. WHITMAN, IN HER OFFICIAL CAPACITY AS ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle, United States District Judge

MEMORANDUM OPINION

Plaintiffs seek discovery to bolster their claim that because the Environmental Protection Agency ("EPA") has failed to respond to Clean Air Act ("CAA") petitions within the sixty-day statutory deadline, 42 U.S.C. § 7661d(b)(2), they are entitled to far-reaching injunctive relief that would force the EPA to perform future non-discretionary duties in a timely fashion. As explained more fully below, no purpose would be served by compelling the requested discovery relating to the EPA's nationwide administration of CAA petitions, for Congress has limited the relief that can be court ordered. The Court therefore grants defendants' motion to stay discovery.

BACKGROUND

Title V of the CAA requires the EPA Administrator (the "Administrator") to object to permits issued by state permitting authorities which are not in compliance with CAA requirements. 42 U.S.C. § 7661d(b)(1). If the Administrator does not object to the issuance of a permit, then any person may petition the Administrator to take such action, and the Administrator must grant or deny such petition within sixty days after the petition is filed. 42 U.S.C. § 7661d(b)(2). The CAA allows any person to bring a "citizen['s] suit" "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 . . . ." 42 U.S.C. § 7604(a)(2).

On February 21, 2002, plaintiffs brought citizen suits pursuant to 42 U.S.C. § 7604(a) to require the EPA to respond to numerous petitions that plaintiffs had submitted. The sixty-day deadline for each of the petitions had already passed at the time the complaints were filed. Plaintiffs' original complaint, filed on February 21, 2002, alleged that the EPA had engaged in a "pattern and practice" of failing to respond to similar petitions in a timely manner, and sought equitable relief ordering the EPA to take steps to ensure that it would respond in the future to such petitions within the legal deadline. In response, the EPA moved to dismiss such claims based on sovereign immunity, ripeness grounds, lack of standing, and failure to provide adequate pre-suit notice. Thereafter, plaintiffs voluntarily amended their complaint on two occasions and dismissed their "pattern and practice" claims.

Plaintiffs now seek discovery, consisting of up to three depositions and twenty-five interrogatories addressing the EPA's nationwide administration of CAA petitions. They claim that "[such] discovery is relevant to establishing that prospective relief is necessary and what that relief should be." (Revised Joint Rule 16.3 Report at 4.) As plaintiffs explain, they want to "take discovery on the current nature and causes of EPA's delays as well as solutions to address the delay." (Pls.' Opp. at 12.) They contend that the Court has "considerable latitude in shaping its order that requires EPA to perform its non-discretionary [duty] of responding to Plaintiffs' Title V petitions." (Pls.' Opp. at 5.) According to plaintiffs, the Court's broad equitable powers would enable it to issue an order "requiring EPA to respond to all of Plaintiffs['] petitions in 60 days while still maintaining a first in, first out system." (Id. at 5-6.) Alternatively, as indicated at the July 2, 2002 status conference, plaintiffs believe that the Court can order the EPA "to fix" the system, for instance, by requiring the EPA "to implement a system of petition review that ensures that it is possible to respond to petitions within the legally allowed 60 days." (Id. at 6.)

In the absence of any case law directly on point, plaintiffs support their contention that this Court has broad equitable powers to fashion an appropriate remedy by citing case law decided under different statutes. In response, defendants argue that plaintiffs are not entitled to discovery, because the CAA expressly limits the relief that a court may order. They claim that the CAA Citizen Suit Provision, 42 U.S.C. § 7604(a), only permits a court to order the Administrator to respond to specific petitions, and that any injunction that reaches beyond a specific petition would exceed the scope of the court's statutory authority. Defendants further argue that the cases cited by plaintiffs are inapposite because they refer to different statutes that grant different equitable powers and "do not interpret the applicable limitation on this Court's jurisdiction." (Defs.' Rep. at 2.) While there can be no doubt that timely responses to citizen suits does, as argued by plaintiffs, further the public good, the Court is constrained in its ability to remedy the systemic problem that plaintiffs have identified.

ANALYSIS

At the outset, plaintiffs "do[] not dispute that this Court's authority is limited to ordering EPA to perform its non-discretionary duty." (Pls.' Opp. at 5.) Plaintiffs argue, nonetheless, that the Court has "considerable latitude" in "shaping its order" so as to require the EPA to comply with its non-discretionary duty to "grant or deny" plaintiffs' Title V petitions. Whatever the exact limits of the Court's powers are, it is clear that they do not extend far enough to encompass the relief that plaintiffs seek here.

First, the Court looks to the express language set forth in the CAA. Under 42 U.S.C. § 7604(a), "district courts shall have jurisdiction . . . to order the Administrator to perform such act or duty." That duty is explained in 42 U.S.C. § 7661d(b)(2) -- the Administrator must "grant or deny [a Title V] petition within sixty days after the petition is filed." The discovery plaintiffs seek, however, is not related to "grant[ing] or deny[ing]" the specific petitions that are the subject of plaintiffs' amended claims, and in fact, at a status conference held on July 2, 2002, defendants appear to have conceded liability as to the petitions that are still outstanding. Rather, plaintiffs desire broad programmatic relief to remedy what they perceive to be flaws in the agency's system for responding to petitions. The statutory language, however, limits the Court's power to addressing only the petitions before it.

In effect, plaintiffs ask this Court to intrude upon the agency's discretionary domain to organize its operations with respect to Title V petitions; however, the Court lacks jurisdiction to provide such a remedy. "[T]he district court has jurisdiction, under Section 304, to compel the Administrator to perform purely ministerial acts, not to order the Administrator to make particular judgmental decisions." Envtl. Defense Fund v. Thomas, 870 F.2d 892, 899 (2d Cir. 1989); see also Monongahela Power Co. v. Reilly, 980 F.2d 272, 276 (4th Cir. 1993) (the term "non-discretionary [is] narrowly construed"); Sierra Club v. Train, 557 F.2d 485, 488 5th Cir. 1977) (analyzing non-discretionary duties in context of Federal Water Pollution Control Act ("substantive issue . . . whether [statute] imposes a discretionary or a non-discretionary duty"). Indeed, a citizen's suit "'was intended to provide relief only in a narrowly-defined class of situations in which the Administrator failed to perform a mandatory function; it was not designed to permit review of the performance of those functions, nor to permit the court to direct the manner in which any discretion given the Administrator in the performance of those functions should be exercised.'" Kennecott Cooper Corp. v. Costle, 572 F.2d 1349, 1355 (9th Cir. 1978) (quoting Wisconsin Envtl. Decade, Inc. v. Wisconsin Power & Light Co., 395 F. Supp. 313, 321 (W.D. Wis. 1975)).

Both the structure of the Act and its legislative history indicate that Congress intended that the available remedies were limited to those expressly provided for. "The legislative history of the [CAA] contains explicit indications that private enforcement suits were intended to be limited to the injunctive relief expressly provided for." Middlesex County Sewerage Authority, 453 U.S. 1, 18 n.27 (1981). See also 116 Cong. Rec. 33104 (1970) ("It has been argued . . . that conferring additional rights on the citizen might burden the courts unduly. . . . [T]he citizen suit provision . . . has been carefully drafted to prevent this consequence . . . .") (statement of Senator Hart); See id. at 33102 ("The [CAA is] limited to seek[ing] abatement of violation of standards established administratively under the act, and expressly excludes damages actions.") (statement of Senator Muskie).

The Court's conclusion is also consistent with the rationale of this Court in Sierra Club v. Browner, 130 F. Supp. 2d 78 (D.D.C. 2001), aff'd, 285 F.3d 63 (D.C. Cir. 2002), where the Honorable Colleen Kollar-Kotelly observed:

[T]he CAA expressly limits the relief that district courts may afford in citizen suits like this one. Under 42 U.S.C. § 7604(a), the Court may grant no relief beyond "order[ing] the Administrator to perform [a non-discretionary] act or duty [or] compel[ling] . . . agency action unreasonably delayed." 42 U.S.C. §7604(a). In other words, the Court's ...


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