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Friends of the Earth v. United States Environmental Protection Agency

United States District Court, District of Columbia

March 27, 2013

FRIENDS OF THE EARTH, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants

For FRIENDS OF THE EARTH, Plaintiff: Timothy David Ballo, LEAD ATTORNEY, EARTHJUSTICE, Washington, DC; Bridget M. Lee, PRO HAC VICE, Marianne L. Engelman Lado, PRO HAC VICE, EARTHJUSTICE, New York, NY.

For UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, LISA JACKSON, Administrator, United States Enviornmental Protection Agency, Defendants: Eric G. Hostetler, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington, DC.

YVONNE D. WEBB-LEWIS, Amicus, Pro se, Columbus, OH.

OPINION

Page 41

AMY BERMAN JACKSON, United States District Judge.

MEMORANDUM OPINION

Plaintiff Friends of the Earth (" FOE" ) has brought this action seeking to compel defendants -- the United States Environmental Protection Agency and Lisa Jackson in her official capacity as Administrator of the United States Environmental Protection Agency (together, " EPA" ) -- to make a determination as to whether lead emissions from general aviation aircraft engines using aviation gasoline endanger the public health or welfare under section 231(a)(2)(A) of the Clean Air Act of 1970, as amended (" Clean Air Act" ), 42 U.S.C. § 7571(a)(2)(A). A finding that emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare is referred to as an " endangerment determination," and the making of such a finding would trigger EPA's statutory obligation to promulgate standards to govern the emissions.

Plaintiff claims that EPA's failure to make an endangerment determination for lead emissions to date constitutes the unreasonable delay by the agency in performing its statutory duty that private individuals may challenge under section 304 of the Clean Air Act, 42 U.S.C. § 7604(a), known as the " citizen suit provision." EPA has moved for summary judgment, and the Court undertook to resolve the threshold jurisdictional question first. The only question before the Court at this juncture is whether the citizen suit provision of the Clean Air Act authorizes this lawsuit and provides this Court with the jurisdiction to grant the relief that plaintiff seeks.

The Court finds that plaintiff's claim does not satisfy the condition for jurisdiction under the citizen suit provision because the act or duty that plaintiff seeks to compel is not a mandatory or nondiscretionary one. Accordingly, the Court will grant EPA's motion for summary judgment.

Page 42

BACKGROUND

I. The Clean Air Act

Section 231(a) of the Clean Air Act, 42 U.S.C. § 7571(a), requires EPA to study the effects of air pollutant emissions from aircraft on air quality, and to issue proposed emission standards for any air pollutant " which, in [the Administrator's] judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare." Id. § § 7571(a)(1), (2)(A). The provision also dictates how EPA should go about setting the emissions standards. It directs EPA's Administrator to consult with the Administrator of the Federal Aviation Administration and to hold public hearings. Id. § § 7571(a)(2)(B), (3).

The Act also establishes a bifurcated scheme that divides jurisdiction to oversee EPA between the district courts and the circuit courts. See Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654, 657-58, 169 U.S. App. D.C. 195 (D.C. Cir. 1975).

Under section 307(b)(1), 42 U.S.C. § 7607(b)(1), the United States Court of Appeals for the District of Columbia has exclusive jurisdiction to review action of the EPA Administrator in promulgating certain national standards and rules, as well as " any other nationally applicable regulations promulgated, or final action taken, by the Administrator." The same section provides that an individual may file a petition for review of final actions of the Administrator that are locally or regionally applicable only in the federal court of appeals for the appropriate circuit.

Section 304(a)(2), 42 U.S.C. § 7604(a)(2), the " citizen suit provision," permits any person to commence a civil action on his own behalf against the EPA Administrator in the district court " 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." Section 304(a) further provides that " [t]he district courts of the United States shall have jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed[.]"

II. Factual Background

This suit arises out of a petition for rulemaking that plaintiff filed with EPA on October 3, 2006. The petition requested that EPA: (1) make a finding that lead emissions from general aviation aircraft using aviation gasoline endanger public health or welfare; and (2) issue regulations limiting such emissions, pursuant to section 231 of the Clean Air Act. Compl. [Dkt. # 1] ¶ 1; Ex. 1 to Defs.' Mot. for Summ. J. (" Defs.' Mot." ) [Dkt. # 22-3]. Plaintiff has dedicated a large portion of its complaint to identifying the harms attendant to lead emissions and the quantity of lead emissions that come from aircraft engines using leaded aviation gasoline. Compl. ¶ ¶ 23-36. While the allegations raise significant concerns, they do not bear on the narrow jurisdictional issue now before the Court, and they need not be recited here. The Court notes that its decision that it lacks the authority to hear this case should not be viewed as making any statement at all about the importance or the validity of the concerns that underlie this action.

On November 16, 2007, EPA issued a Notice of Petition for Rulemaking in the Federal Register soliciting information and public comment on the issues raised by plaintiff in its petition, including the use of leaded aviation gasoline in general aviation piston-engine aircraft and the potential impact of its use on public health and welfare. 72 Fed. Reg. 64,570, 64,572-73 (Nov. 16, 2007). Two and a half years later, on April 28, 2010, EPA issued an Advance Notice of Proposed Rulemaking on Lead

Page 43

Emissions from Piston-Engine Aircraft Using Leaded Aviation Gasoline. 75 Fed. Reg. 22,440 (Apr. 28, 2010). The notice included a description of the information that EPA had obtained concerning the health and environmental impacts of exposure to lead emissions from general aviation piston-engine aircraft, and it solicited additional information on that issue. Id. at 22,441.

Having received no response to its petition from EPA, plaintiff filed the complaint in this action on March 7, 2012. In its three claims for relief, the complaint asserted that: (1) EPA's failure to respond to plaintiff's 2006 petition to regulate lead emissions from certain aircraft constitutes unreasonable delay in violation of the Clean Air Act, id. ¶ ¶ 52-56; (2) EPA's failure to respond to plaintiff's 2006 petition constitutes unreasonable delay in violation of the Administrative Procedure Act, id. ¶ ¶ 57-61; and (3) EPA's failure to make a finding as to whether lead emissions from aviation gasoline-fueled aircraft cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare constitutes unreasonable delay under section 231 of the Clean Air Act, id. ¶ ¶ 62-67.

Pursuant to the local rules of this Court, the parties filed a meet and confer statement in this case on June 1, 2012. Joint Report Pursuant to Local Rule 16.3 [Dkt. # 21]. The statement indicated that the parties did not agree on how briefing and discovery should proceed. Id. ¶ ¶ 7- 8. According to the statement, EPA believed that discovery would not be needed to resolve the unreasonable delay claims in plaintiff's complaint, " in part because the relevant administrative docket concerning EPA's response to Plaintiff's Petition is publicly available." Id. ¶ 7. The plaintiff maintained that discovery was necessary on the issue of whether there has been unreasonable delay " since evidence relating to these issues is within EPA's control and is not publicly available." Id. ¶ 8. It took the position that the administrative docket was not complete, " as EPA has yet to respond to the Petition or to make an endangerment finding." Id.

Shortly thereafter, though, on July 19, 2012, EPA issued its final decision in response to plaintiff's rulemaking petition. Ex. 4 to Defs.' Mot. [Dkt. # 22-6]. The decision explains:

This document is EPA's final decision on the FoE Petition, and to the extent the Petition requests additional or different action by EPA, we are denying it. In response to Petitioners' request, EPA is not at this time issuing a judgment on whether lead emissions from general aviation aircraft piston engines cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, and is consequently not prepared at this time to propose standards for such emissions. However, EPA intends to initiate a notice and comment proceeding under [Clean Air Act] section 231(a)(2)(A) regarding whether such emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.

Id. at 4. The decision details the factors that EPA believed it must consider in order to conduct the endangerment determination, as well as all of the relevant research and data that was available to EPA at the time, the research and data that EPA expected to obtain in the future, and the steps that EPA was taking to produce more research and data on the relevant factors. Id. at 4-15. Finally, the decision concludes that given the available data, the ongoing technical work that EPA was engaged in for the purpose of making an endangerment finding, and EPA's limited

Page 44

resources, EPA believed that rulemaking would be premature at that time. Id. at 17-18. EPA stated that it expected to undertake the endangerment proceeding in the future " on a timeframe consistent with its other priorities and the continuing technical activities regarding such emissions." Id. at 18. It estimated that it would take " up to three years, or until mid- to late 2015, to develop a proposal, publish it for comment, review and analyze the extensive comments that are expected, and issue a final determination with regard to endangerment and contribution from lead emissions of piston aircraft engines." Id. at 15.

The next day -- July 20, 2012 -- EPA filed a motion for summary judgment in this case. [Dkt. # 22]. The motion argued, in part, that since EPA had made its final decision on plaintiff's petition, the first and second claims for relief in the complaint were moot. Defs.' Mem. in Support of Mot. for Summ. J. (" Defs.' Mem." ) [Dkt. # 22-1] at 17-19. As to the third claim for relief, EPA argued that summary judgment should be granted for two reasons. First, plaintiff failed to state a claim and failed to identify an applicable waiver of sovereign immunity that would give rise to jurisdiction because the endangerment determination plaintiff sought was not a mandatory duty that could be compelled under the citizen suit provision of the Clean Air Act. Id. at 19-26. Second, EPA moved for summary judgment on the merits, on the grounds that the determination was not unreasonably delayed. Id. at 20-33.

The Court ordered the parties to submit another report addressing whether plaintiff still believed that any further discovery was necessary and, if so, whether the mootness of the first and second causes of action and the jurisdictional question underlying the third cause of action should be briefed and decided first. Minute Order (July 23, 2012). In response, plaintiff filed a stipulation dismissing the first and second claims for relief from its complaint without prejudice, [Dkt. # 23], and the parties filed the requested status report, setting forth their respective positions on how to proceed, [Dkt. # 25].

EPA proposed that the Court address the threshold legal issue of whether the Clean Air Act imposes an enforceable mandatory duty on EPA to make an endangerment determination for each pollutant emitted by aircraft engines before the parties briefed the merits of whether the determination for lead emissions was unreasonable delayed. Joint Status Report [Dkt. # 25] ¶ 6. EPA also argued that should the Court recognize the existence of such a duty, further briefing should proceed solely on an administrative record, which would consist of EPA's decision on plaintiff's petition and its underlying record. Id. ¶ ¶ 8-9. Plaintiff took the position that discovery should proceed immediately without bifurcated briefing, id. ...


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