The opinion of the court was delivered by: Donald C. Pogue United States District JUDGE*fn3
Plaintiffs, the Izaak Walton League of America, the National Wildlife Federation, and the Natural Resources Council of Maine (collectively "Plaintiffs"), petition this court to order the Administrator of the Environmental Protection Agency ("Administrator" or "EPA") to perform his non-discretionary duty to promulgate emission standards for coal- and oil-fired electric utility steam generating units ("EUSGUs") under the Clean Air Act, 42 U.S.C. § 7412(c) (2000) ("CAA"). While this matter was pending, the EPA took action which it claims mooted the Plaintiffs' cause of action. Accordingly, the EPA has moved to dismiss the Plaintiffs' action as moot. Before the court are the EPA's motion to dismiss, and the parties' cross-motions for summary judgment. Because the court agrees with the EPA that its action has rendered the exercise of jurisdiction by this court improper, the court grants Defendant's motion to dismiss.
The CAA, 42 U.S.C. §§ 7401-9471q, enacted in 1970, establishes a comprehensive scheme to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare." 42 U.S.C. § 7401(b)(1). In 1990, Congress amended the CAA to authorize the EPA to regulate hazardous air pollutants, as defined under 42 U.S.C. §§ 7412(b)(1)&(2), emitted from "all categories and subcategories of major sources and area sources," 42 U.S.C. §§ 7412(c). The 1990 amendments required the EPA to publish an initial list of source categories no later than November 15, 1991 and to periodically revise the list. Id. Additionally, Section 7412(c) permits the EPA to list additional categories and subcategories of hazardous air pollutants not included on the initial list, see 42 U.S.C. § 7412(c)(5), and to delete sources from the list upon certain findings, 42 U.S.C. § 7412(c)(9).*fn1 If a source is listed, the CAA requires the EPA to "establish emission standards" not later than "10 years after November 15, 1990, or within 2 years after the date on which such category or subcategory is listed, whichever is later," 42 U.S.C. § 7412(c)(5); see also 42 U.S.C. § 7412(c)(2).
The CAA also includes a specific provision regarding EUSGUs. See 42 U.S.C. § 7412(n). Under Section 7412(n), the EPA was required to "perform a study on the hazards to public health reasonably anticipated to occur as a result of emission" of hazardous air pollutants emitted by EUSGUs and to report the study's results to Congress no later than November 15, 1993. Id. Section 7412(n) further authorizes the EPA to "regulate electric utility steam generating units under this section, if the Administrator finds such regulation is appropriate and necessary after considering the results of the study required by this subparagraph." Id.
In February 1998, the EPA completed its study of EUSGUs and submitted a report to Congress as required under 42 U.S.C. § 7412(n). Subsequently, on December 20, 2000, the EPA made a finding under Section 7412(n) that regulation of EUSGUs was "appropriate and necessary." Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units, 65 Fed. Reg. 79,825, 79,829 (EPA Dec. 20, 2000) (notice of regulatory finding). Concurrent with this assessment, the EPA added EUSGUs as a source category to the list described in Section 7412(c) ("source category list"). Id. at 79,831. Despite listing EUSGUs as a source category, the EPA never promulgated emission standards for EUSGUs as required under Section 7412(c)(5).
On January 30, 2004, the EPA issued a proposed rule that presented two primary alternative regulatory approaches for EUSGUs: (1) to delete EUSGUs from its list compiled under Section 7412(c) or (2) to promulgate emission standards for EUSGUs, Proposed National Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 69 Fed. Reg. 4,652, 4,668 (EPA Jan. 30, 2004) (proposed rule) ("Proposal"), expressing its preference for the former course of action. Id. After a comment period, (then Acting) EPA Administrator Stephen L. Johnson signed a notice of agency action removing EUSGUs from the source category list on March 15, 2005. Revision of December 2000 Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units and the Removal of Coal- and Oil-Fired Electric Utility Steam Generating Units From the Section 112(c) List, 70 Fed. Reg. 15,994 (EPA March 29, 2005) ("Delistment Decision") amended by, Revision of December 2000 Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units and the Removal of Coal- and Oil-Fired Electric Utility Steam Generating Units From the Section 112(c) List, 70 Fed. Reg. 33,000 (EPA June 7, 2005) (final rule; correction). In its official notice in the Federal Register, the EPA noted that "[p]ursuant to CAA section 307(b), judicial review of this final rule is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by May 31, 2005. EPA designates this action a CAA section 307(d) rulemaking." Id. at 15,994.
Plaintiffs filed a complaint in this court on April 28, 2004. Compl. at 15. Plaintiffs claimed that because the EPA had listed EUSGUs as a source category on December 20, 2000, the EPA had a non-discretionary duty to promulgate emission standards by December 20, 2002, which the EPA had failed to honor. Plaintiffs therefore asked this court to order the promulgation of such emission standards.
Plaintiffs and Defendant filed cross-motions for summary judgment. Following the conclusion of briefing, but before the court issued a decision pertaining thereto, the EPA announced its action to delist EUSGUs. The next day, the EPA supplemented its filings with a motion to dismiss the Plaintiffs' complaint as moot under Rule 12(b)(1).
It is an imperative of Article III of the U.S. Constitution that every case initiated before the federal judiciary must be, and remain, a "case" or "controversy." See Church of Scientology of Cal. v. United States, 506 U.S. 9, 12-13 (1992), Lewis v. Continental Bank Corp., 494 U.S. 472, 447-48 (1990). Therefore, if during the pendency of proceedings before the court, "intervening events make it impossible to grant the prevailing party effective relief," the court may no longer decide the questions presented, but rather, must dismiss the action as moot. Burlington N. R.R. Co. v. Surface Transp. Bd., 75 F.3d 685, 688 (D.C. Cir. 1996). In determining whether a question has been mooted by intervening events, the court must look to both the relief sought, and the court's ability to grant such requested relief. Cf. Adeleke v. United States, 355 F.3d 144, 151 (2d Cir. 2004); United States v. Martinson, 809 F.2d 1364, 1368 (9th Cir. 1987) ("So long as the court may order relief responsive to the wrong alleged, the appeal is ...