United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY United States District Judge.
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'  Motion to Dismiss for Lack of
Jurisdiction, Plaintiff's  Cross Motion to Hold in
Abeyance, and Plaintiff's  Motion for Procedural
Order. Upon consideration of the pleadings,  the relevant
legal authorities, and the record as a whole, the Court
DENIES Defendants'  Motion to Dismiss for Lack of
Jurisdiction, GRANTS Plaintiff's  Cross Motion to
Hold in Abeyance, and GRANTS the relief requested by
Plaintiff in its  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.
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).
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. , ¶¶ 32-40.
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. . 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. . 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.
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.
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.
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. , at 2-3; Defs.'
Opp'n to Pl.'s Mot. for Procedural Order, ECF No.
, 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. , at
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.  / , 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
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).
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).
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 ...