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Sierra Club v. United States Environmental Protection Agency

United States District Court, District of Columbia

June 14, 2016

SIERRA CLUB, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and GINA McCARTHY, Administrator, United States Environmental Protection Agency, Defendants

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY United States District Judge.

         Plaintiff Sierra Club filed suit against Defendants, the United States Environmental Protection Agency and Gina McCarthy, Administrator (collectively, the "EPA"), seeking injunctive relief to compel the EPA to perform certain nondiscretionary duties mandated by the Clean Air Act ("the Act"). Presently before the Court are Defendants' [54] Motion to Dismiss for Lack of Jurisdiction, Plaintiff's [55] Cross Motion to Hold in Abeyance, and Plaintiff's [67] Motion for Procedural Order. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court DENIES Defendants' [54] Motion to Dismiss for Lack of Jurisdiction, GRANTS Plaintiff's [55] Cross Motion to Hold in Abeyance, and GRANTS the relief requested by Plaintiff in its [67] Motion for Procedural Order. Specifically, the Court shall issue an Order (1) directing the EPA to file, within 45 days of this Memorandum Opinion, by no later than July 29, 2016, a Notice describing the agency's schedule for proposing and completing action to adopt a valid Clean Air Act "good neighbor" federal implementation plan for Texas with respect to the 1997 particulate matter ("PM2.5") national ambient air quality standards, and to provide status reports to the Court every 90 days thereafter; and (2) holding Plaintiff's PM2.5 interstate transport claim in abeyance until completion of an EPA action adopting a valid 1997 PM2.5 good neighbor FIP for Texas, without prejudice to Sierra Club's right to move for additional relief should the EPA fail to adopt or implement an expeditious schedule on remand.

         I. BACKGROUND

         The Clean Air Act states that the EPA must set national ambient air quality standards ("NAAQS") for certain air pollutants, namely particulate matter with a diameter of less than 2.5 microns-or PM2.5. See 42 U.S.C. § 7409(a). If a state fails to adopt an adequate state implementation plan ("SIP") to comply with the NAAQS within three years of the promulgation of the NAAQS in question, 42 U.S.C. § 7410(a)(1), then the Administrator must promulgate its own federal implementation plan ("FIP") within two years of finding that SIP absent or inadequate, 42 U.S.C. § 7410(c)(1).

         On September 14, 2010, Plaintiff Sierra Club filed a complaint against the EPA, alleging three claims under the Clean Air Act: (1) that the EPA failed to promulgate an interstate transport FIP for the State of Texas with respect to the 1997 ozone and PM2.5 NAAQS; (2) that the EPA failed to promulgate an FIP for the State of Texas with respect to the 1997 ozone NAAQS; and (3) that the EPA failed to take final approval or disapproval action on Texas's SIP with respect to the 1997 PM2.5 NAAQS. See Complaint for Declaratory and Injunctive Relief, ECF No. [1], ¶¶ 32-40.

         Soon after the filing of the Complaint, the parties reached a Partial Consent Decree, which the Court approved in 2011, resolving claims (2) and (3). See Order granting Partial Consent Decree, ECF No. [23]. Claim (1)-Plaintiff's interstate transport claim-is now the sole claim remaining in this case. The first half of Plaintiff's interstate transport claim-that the EPA has failed to promulgate an interstate transport FIP for the State of Texas with respect to the 1997 ozone NAAQS (Plaintiff's "ozone interstate transport claim")-is being held in abeyance, at the request of the parties, until August 31, 2016, to allow the EPA to finalize an update to the Cross-State Air Pollution Rule for the 2008 ozone NAAQS. See Minute Order (Feb. 19, 2016); see also Joint Status Report (Feb. 18, 2016), ECF No. [74]. The second half of Plaintiff's first claim-that the EPA has failed to promulgate an interstate transport FIP for the State of Texas with respect to the 1997 PM2.5 NAAQS (Plaintiff's "PM2.5 interstate transport claim")-is the subject of the pending motions.

         As relevant to Plaintiff's PM2.5 interstate transport claim-the EPA, on August 8, 2011, promulgated the Cross-State Air Pollution Rule ("CSAPR" or the "Rule"), which included a FIP addressing interstate transport of pollutants from Texas. See 76 Fed. Reg. 48, 208 (Aug. 8, 2011); see also Complaint ¶¶ 33-34. Initially, the Rule was stayed pending review by the United States Court of Appeals for the District of Columbia Circuit (the "D.C. Circuit") and the United States Supreme Court. See EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir.), Per Curiam Order (Dec. 30, 2011), Document No. 1350421. On October 23, 2014, the D.C. Circuit, on remand from the Supreme Court, lifted the stay, and the Rule went into effect in January 2015. See id., Per Curiam Order (Oct. 23, 2014), Document No. 1518738.

         On July 28, 2015, the D.C. Circuit held invalid the part of the CSAPR that is relevant to Plaintiff's PM2.5 interstate transport claim. See EME Homer City Generation, L.P. v. E.P.A., 795 F.3d 118, 128-29 (D.C. Cir. 2015). In particular, the D.C. Circuit held that the sulfur dioxide ("SO2") emissions budgets that the EPA had established for Texas were unlawful because they required Texas "to reduce emissions by more than the amount necessary to achieve attainment in every downwind State to which it is linked." Id. at 124 (quoting EME Homer City v. EPA, 134 S.Ct. 1584, 1608 (2014)) (emphasis in original). The D.C. Circuit remanded the Rule to the EPA, without vacatur, leaving the Rule in effect while the EPA remedied the issues identified by the D.C. Circuit. See Id. at 132.

         Defendants request that this Court dismiss Plaintiff's PM2.5 interstate transport claim as moot, arguing that the EPA has fulfilled its duty to promulgate a FIP addressing interstate transport of pollutants from Texas. See Defs.' Notice of Supp. Authority, ECF No. [65], at 2-3; Defs.' Opp'n to Pl.'s Mot. for Procedural Order, ECF No. [68], at 3-7; see also Defs.' Mem. in Support of Defs.' Mot. to Dismiss, ECF No. [54-1], at 5-9. Defendants, relying on the fact that the rule promulgated by the EPA remains in effect on remand, contend that there is no longer a statutory duty left to satisfy under the Clean Air Act with respect to Plaintiff's PM2.5 interstate transport claim. See Defs.' Opp'n to Pl.'s Mot. for Procedural Order, ECF No. [68], at 4.[2]

         Plaintiff, in response, argues that the D.C. Circuit's decision in Homer City "invalidated the exact action EPA relies on here to resolve Sierra Club's claim concerning the agency's outstanding nondiscretionary duty to promulgate a good neighbor FIP for Texas." Pl.'s Response to EPA's Notice of Supp. Authority, and Mot. for Procedural Order, ECF Nos. [66] / [67], at 2. Plaintiff contends that its PM2.5 interstate transport claim is "live and unresolved, and will not become moot until EPA acts on remand to correct the specific flaws identified in Homer City." Id. at 1. Citing these arguments, Plaintiff moves this Court to enter an Order: (a) directing the EPA to notify the Court within 45 days of the agency's schedule for proposing and completing action to adopt a valid Clean Air Act "good neighbor" FIP for Texas with respect to the PM2.5 NAAQS and to provide status reports to the Court every 90 days thereafter; and (b) holding this case in abeyance until completion of an EPA action adopting a valid 1997 PM2.5 good neighbor FIP for Texas, without prejudice to Sierra Club's right to move for additional relief at any time should EPA fail to adopt or implement an expeditious schedule on remand. Id. at 1-2.[3]

         II. LEGAL STANDARD

         Article III of the Constitution limits federal courts' judicial power to only live "cases" or "controversies." This requirement persists throughout the entirety of any judicial proceedings. See Lewis v. Cont'l Bank Corp, 494 U.S. 472, 477 (1990). Accordingly, the doctrine of mootness precludes the Court from adjudicating claims to which it cannot provide any specific relief. See United States v. Mich. Nat'l Corp., 419 U.S. 1, 4 (1974).

         A case becomes moot "when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome, " Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (citation omitted), or when "intervening events make it impossible to grant the prevailing party effective relief, " Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008) (citation omitted). The party claiming an issue is moot bears a "heavy" and "formidable" burden. Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 176, 189, 190 (2000); see also Honeywell Int'l, Inc. v. Nuclear Regulatory Comm'n, 628 F.3d 568, 576 (D.C. Cir. 2010) (The "heavy burden of establishing mootness lies with the party asserting a case is moot.") (citation and internal quotation marks omitted).

         A defendant's voluntary cessation of unlawful conduct does not suffice to moot an issue. See United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). Voluntary cessation of unlawful conduct can only moot a case if (1) there is no reasonable expectation that the alleged unlawful conduct will recur and (2) interim events or ...


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