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Sierra Club v. Johnson

June 8, 2009

SIERRA CLUB, PLAINTIFF,
v.
STEPHEN L. JOHNSON, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Sierra Club has brought this action against Defendant Stephen L. Johnson, the Administrator of the United States Environmental Protection Agency, alleging that Defendant has violated his obligation to issue or deny an operating permit for the Hugh L. Spurlock Generating Station in Maysville, Kentucky (the "Spurlock facility"). Currently pending before the Court is Defendant's [9] Motion to Dismiss or, in the alternative, [10] Motion to Transfer, based on the specific venue provisions in the Clean Air Act that limit the possible venues in which Plaintiff may assert one of the three claims raised in its Complaint. After a searching review of the parties' submissions, applicable case law and statutory authority, and the entire record of the case as a whole, the Court agrees with Defendant that Plaintiff has brought this case in an improper venue. Accordingly, the Court shall GRANT Defendant's [10] Motion to Transfer and, in the Court's discretion, shall order this case to be transferred to the Eastern District of Kentucky, for the reasons that follow.

I. BACKGROUND

A. Statutory and Regulatory Background

The Clean Air Act, 42 U.S.C. §§ 7401, et seq. ("CAA"), is intended "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare . . . ." Id. § 7401(b)(1). The CAA establishes a comprehensive program for the regulation of air pollution through a system of shared federal and state responsibility. At the federal level, the Administrator of the Environmental Protection Agency ("EPA") is responsible for directing the activities of the EPA and implementing certain requirements set forth in the CAA. Id. § 7402(b), 7661d. At the state level, the CAA delegates to each state the obligation and authority to develop an operating permit program that complies with the emissions and regulatory requirements set forth in the Act. Id. § 7661a(d)(1). In this case, the EPA has approved Kentucky's operating permit program, pursuant to which the authorized permitting authority is the Kentucky Division of Air Quality ("KDAQ"). See 66 Fed. Reg. 54,953 (Oct. 31, 2001).

Title V of the CAA establishes the procedure for processing air pollution permit applications and the issuance of permits by the state. Specifically, 42 U.S.C. § 7661d(a) requires that state permitting authorities submit each proposed permit to the Administrator of the EPA for review. If the Administrator does not object to a deficient permit during the statutory period, any person may petition the Administrator to object to the Title V permit. 42 U.S.C. § 7661d(b)(2). The Administrator must then grant or deny the petition. Id.

If the Administrator objects to the proposed permit because of non-compliance with the applicable requirements of the CAA, the state permitting authority must submit a permit that has been "revised to meet the objection" for further review by the EPA within 90 days of the Administrator's objection. 42 U.S.C. § 7661d(c). If the state permitting authority fails to timely submit a revised permit proposal, "the Administrator shall issue or deny the permit in accordance with the requirements of [Title V]." Id. § 7661d(c). It is this last requirement that is at issue in this case.

The CAA contains several citizen suit provisions. A person may bring an action "where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary . . . ." Id. § 7604(a)(2). The Act provides that such an action may be brought in any district court. Id. § 7604(a) (emphasis added). The CAA also authorizes a person to bring suit to compel performance of "agency action unreasonably delayed." Id. Unlike claims brought to compel an act or duty that is not discretionary, the CAA requires "unreasonably delayed" claims to be brought in a specific venue:

[t]he district courts of the United States shall have jurisdiction to compel . . . agency action unreasonably delayed, except that an action to compel agency action referred to in [42 U.S.C. § 7607(b)] which is unreasonably delayed may only be filed in a United States District Court within the circuit in which such action would be reviewable under [42 U.S.C. § 7607(b)].

Id; see also 42 U.S.C. § 7606(b)(1) (allocating petitions for certain "locally or regionally applicable" actions of the EPA to "the appropriate circuit").

B. Factual Background

Sierra Club is a non-profit organization whose purpose is to "preserve, protect, and enhance the natural environment."*fn1 Compl. ¶ 3. Plaintiff has over 800,000 members nationwide, including members who live around and are affected by the Spurlock facility:

Plaintiff's members live, work, and recreate around the Spurlock facility in Maysville, Kentucky. Plaintiff's members breathe, use and enjoy the ambient air around the area of Maysville, Kentucky. Their health and use of the air is impaired by the pollution in the air caused by the Spurlock facility in Maysville. The Spurlock ...


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