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National Parks Conservation v. United States Department of

June 30, 2011

NATIONAL PARKS CONSERVATION
ASSOCIATION, ET AL., PLAINTIFFS,
v.
UNITED STATES DEPARTMENT OF INTERIOR AND UNITED STATES
DEPARTMENT OF AGRICULTURE, DEFENDANTS.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiffs, ten non-profit environmental and conservation organizations (together, "NPCA"),*fn1 bring this suit against Defendants, the United States Department of the Interior ("DOI") and United States Department of Agriculture ("USDA," collectively the "Departments"), for declaratory and injunctive relief, pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 706(1) and 555(b). NPCA seeks a declaratory judgment that Defendants have unreasonably delayed responding to its petitions for formal certification of reasonably attributable visibility impairments in various national parks and wilderness areas. Plaintiffs also seek an order requiring the Departments to act on the petitions within 30 days. The Arizona Association, Defense Center, San Juan Citizens Alliance, Center for Biological Diversity, Washington Wildlife Federation, To' Nizhoni Ani, Dooda Desert Rock, and Sierra Club.WildEarth Public Service Company, Central Arizona Water Conservation District, and Salt River Project Agricultural Improvement Power District have intervened on behalf of Defendants. The matter is now before the Court on Defendants' Motion to Dismiss [Dkt. No. 12]. Upon consideration of the Motion, Opposition, and Replies, and the entire record herein, and for the reasons stated below, Defendants' Motion to Dismiss is granted.

I. BACKGROUND

A. Statutory Framework

The Clean Air Act ("CAA"), 42 U.S.C. §§ 7401-7671q (2011), is the principal federal statute designed to "protect and enhance the quality of the Nation's air resources." Id. § 7401(b)(1). Section 169A addresses visibility impairment in certain national parks and wilderness areas, which are designated as "mandatory class I Federal areas."*fn2 Id. § 7491(a)(1). Section 169A of the CAA establishes a "national goal" of preventing and remedying visibility impairment in Class I areas resulting from manmade air pollution.*fn3 Id.

Section 169A charges the Environmental Protection Agency ("EPA") with the responsibility to issue regulations to assure reasonable progress toward the CAA's national visibility goals. Id. § 7491(a)(4). In order to meet these goals, Section 169A instructs EPA, in consultation with the Secretary of the Interior, to require those States it identifies as containing Class I areas "where visibility is an important value," as well as States from which emissions "may reasonably be anticipated to cause or contribute to impairment of visibility" in Class I areas, to submit State implementation plans ("SIPs") for safeguarding visibility in protected Class I areas. Id. §§ 7491(a)(2), (b)(2).

EPA must require these SIPs to include "such emission limits, schedules of compliance and other measures as may be necessary to make reasonable progress." Id. § 7491(b)(2). In particular, these SIPs must require the installation and operation of the "best available retrofit technology" ("BART")*fn4 at certain major stationary sources placed in operation between 1962 and 1977. Id. § 7491(b)(2)(A). The BART provisions apply to specific types of stationary sources that emit more than 250 tons per year of any pollutant. Id. § 7491(g)(7).

The same CAA implementation requirements apply to Indian reservations.*fn5 An Indian tribe, like a State, may submit a tribal implementation plan ("TIP"). Id. § 7410(o). In instances where the tribe does not assume this responsibility, EPA must promulgate a federal implementation plan ("FIP") applicable to the reservation.40 C.F.R. § 49.11.

In addition to EPA and the States, Federal Land Managers ("FMLs"),*fn6 such as the Departments in the present case, play a role in this process. In particular, the appropriate FMLs must be consulted regarding any SIP revision intended to meet the requirements of section 169A. 42 U.S.C. § 7491(d).

B. Implementing Regulations

In 1980, EPA issued regulations addressing "reasonably attributable visibility impairment," meaning "visibility impairment that is caused by the emission of air pollutants from one, or a small number of sources." 40 C.F.R. § 51.301. In relevant part, these visibility impairment regulations state that "[t]he affected Federal Land Manager may certify to the State, at any time, that there exists reasonably attributable impairment of visibility in any mandatory Class I Federal area." Id. § 51.302(c)(1). If such a certification is issued more than six months before a SIP or a SIP revision is scheduled to be submitted for EPA approval, the subsequent SIP must include appropriate BART determinations and compliance schedules for each of the offending stationary facilities. See id. § 51.302(c)(2)(iii).

In 1999, EPA issued additional regulations to carry out its statutory mandate under Section 169A. These include the "regional haze program requirements," id. § 51.308, which are far broader in scope than the visibility impairment regulations contained in Section 51.302. They apply to all "BART-eligible sources" within the State. Id. § 51.308(e). A BART-eligible source is defined as any of a number of specified types of stationary facilities first placed into operation between August 7, 1962 and August 7, 1977, with the potential to emit 250 tons per year or more of any pollutant. Id. § 51.301. In most relevant part, each State must submit a SIP: containing emission limitations representing BART and schedules for compliance with BART for each BART-eligible source that may reasonably be anticipated to cause or contribute to any impairment of visibility in any mandatory Class I Federal area, unless the State demonstrates that an emissions trading program or other alternative will achieve greater reasonable progress toward natural visibility conditions.

Id. § 51.308(e). Under EPA's regional haze regulations, "[a] single source that is responsible for a 1.0 deciview change or more should be considered to 'cause' visibility impairment"*fn7 and the threshold for "determining whether a source 'contributes' to visibility ...


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