The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiffs Sierra Club and Valley Watch, Inc., proceeding under the citizen suit provision of the Clean Air Act ("CAA"), 42 U.S.C. § 7604(a)(2), challenge the inaction of the Environmental Protection Agency ("EPA") with respect to the proposed construction of three new major pollution-emitting facilities in Kentucky. Defendant, arguing that the EPA has no mandatory duty to act to prevent the facilities' construction, has moved to dismiss for lack of subject matter jurisdiction. For the reasons set forth herein, the Court concludes that it lacks jurisdiction to review the agency's decision to not act in this case, and it will therefore grant defendant's motion.
In furtherance of the CAA's twin goals "to  protect and  enhance the quality of the Nation's air resources," 42 U.S.C. § 7401(b)(1), the statute establishes two concurrent regulatory schemes: one to enhance air quality in regions that do not meet National Ambient Air Quality Standards ("NAAQS"), see, e.g., id. §§ 7407-10, and one to protect air quality in regions that comply with NAAQS -- referred to in the CAA as "attainment" areas. See, e.g., id. §§ 7470-7479. The EPA establishes and regularly updates the NAAQS for each of a small group of common air pollutants, called criteria pollutants, that includes, inter alia, ozone, lead, and carbon monoxide. Id. §§ 7408-7409; see 40 C.F.R. 50.8, 50.12, 50.15. Each state, in turn, promulgates a State Implementation Plan ("SIP") to set out its means for attaining NAAQS or for protecting air standards in areas that have already attained NAAQS, and it submits its SIP to the EPA for approval. 42 U.S.C. § 7410.
Each state's SIP outlines a permit program to oversee the "modification, construction, and operation of any stationary source" of air pollution. Id. § 7410(a)(2)(D). Stationary sources in attainment areas are subject to a higher burden in the permit process, since those regions are subject to the Prevention of Significant Deterioration of Air Quality ("PSD") program. Id. §§ 7470-7479. In attainment areas, a PSD permit is required before building any new "major emitting facility," id. § 7475(a)(1), which the CAA defines as a stationary source with "the potential to emit two hundred and fifty tons per year or more of any air pollutant." Id. § 7479(1).
Section 167 of the CAA charges the EPA Administrator with preventing the installation of major air pollution sources in attainment areas if she finds that the proposed facility would be constructed or operated inconsistently with PSD requirements. 42 U.S.C. § 7477; see Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 484 (2004). Section 167, titled "Enforcement," reads:
The Administrator shall, and a State may, take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction or modification of a major emitting facility which does not conform to the requirements of this part, or which is proposed to be constructed in any area designated pursuant to section 7407(d) of this title as attainment or unclassifiable and which is not subject to an implementation plan which meets the requirements of this part.
This action focuses on the EPA's duties under § 167 with respect to the proposed construction of three facilities in Kentucky: East Kentucky Power Cooperative's proposed J.K. Smith Generating Station coal-fired CFB Boiler Project ("Smith"), Conoco Phillips and Peabody's proposed Kentucky NewGas Synthetic Natural Gas Production plant ("NewGas"), and Cash Creek Generation LLC's proposed coal-fired Cash Creek Generating Station ("Cash Creek"). (Compl. ¶ 1.) Both parties agree that each proposed facility, if built, would represent a major emitting facility. (Id.; Def.'s Mot. to Dismiss ["Def's Mot."] at 1.) In addition, all three facilities are in counties currently designated as attainment areas. (Compl.¶ 1; Def.'s Mot. at 1.)
Because the proposed installations are major emitting facilities in attainment areas, they are subject to the EPA's enforcement authority under § 167 if they do not comply with CAA requirements. Plaintiffs "do not believe that [Smith, NewGas, and Cash Creek's] operating and construction permits conform with the requirements of the CAA," and therefore, they argue that the facilities trigger § 167's provision for enforcement. (Compl. ¶ 9.) However, as plaintiffs complain, the agency is not acting to prevent the construction of these facilities. (Id.)
Reading § 167 as imposing a non-discretionary duty on the EPA, plaintiffs have sued the EPA Administrator pursuant to the citizen suit provision of the CAA, which allows civil actions for "failure of the Administrator to perform any act or duty under [CAA] which is not discretionary." 42 U.S.C. § 7604(a)(2). Plaintiffs seek declaratory and injunctive relief aimed at compelling the Administrator "to immediately take measures as necessary to prevent construction" of the three facilities in question. (Compl. at 14-15 ¶¶ [A]-[E].) Defendant has moved to dismiss the complaint for lack of jurisdiction, on the ground that under the citizen suit provision, district courts may only hear cases involving "a non-discretionary, or mandatory, duty" and "cannot dictate how the Administrator must act." Rushing v. Leavitt, No. 03-CV-1969, 2005 WL 555415, at *3-*5 (D.D.C. Mar. 7, 2005).