United States District Court, District of Columbia
Mehta United States District Judge
action seeks to compel a federal agency, Defendant U.S.
Chemical and Safety Hazard Investigation Board
(“CSB” or “the Board”), to promulgate
regulations requiring persons to report accidental chemical
releases to the CSB. The CSB does not deny that its enabling
statute requires the agency to so act. See 42 U.S.C.
§ 7412(r)(6)(C)(iii). Instead, it advances two
contentions to fend off Plaintiffs' suit. First, the CSB
vigorously asserts that Plaintiffs lack standing to sue.
Second, the CSB half-heartedly maintains that the
agency's inaction has not been “unreasonably
delayed, ” even though nearly 30 years have passed
since Congress enacted the CSB's enabling statute. The
court finds neither argument has merit. Accordingly, the
court grants judgment in favor of Plaintiffs. As relief, the
court directs the CSB to promulgate reporting regulations
within 12 months of the date of the court's order.
Accidental Release Reporting
established the CSB by the Clean Air Act Amendments of 1990.
See generally 42 U.S.C. § 7412(r)(6). Congress
modeled the CSB on the “structure, activities and
authorities of the National Transportation Safety
Board.” S. Rep. No. 101-228 at 228 (1989). The
agency's mission is to investigate certain types of
accidental chemical releases and to propose safety measures
“to reduce the likelihood or the consequences of
accidental releases.” 42 U.S.C. § 7412(r)(6)(i),
facilitate that mission, Congress directed the CSB to
promulgate certain reporting requirements concerning
accidental chemical releases. The agency's enabling
statute provides: The Board “shall”
“establish by regulation requirements binding on
persons for reporting accidental releases into the ambient
air subject to the Board's investigatory
jurisdiction.” 42 U.S.C. § 7412(r)(6)(C)(iii). The
Board does not dispute that the quoted provision imposes an
affirmative obligation to adopt reporting regulations. Yet,
since beginning its operations in 1998, the CSB has not done
as Congress directed.
years ago, the agency did take a step towards developing
regulations, but ultimately that effort came up empty.
See generally Chemical Release Reporting, 74 Fed.
Reg. 30, 259, 30, 260 (June 25, 2009) [hereinafter Chemical
Release Reporting.]. In July 2009, the CSB published an
advanced notice of proposed rulemaking to obtain comments on
“how best to proceed with implementing [the reporting]
requirement” before developing the final rule.
Id. at 30, 259. By the close of the commenting
period, the CSB had received 27 comments, yet the process
thereafter inexplicably came to a halt. Compl., ECF No. 1
[hereinafter Compl.], ¶ 19; Answer, ECF No. 6
[hereinafter Answer], ¶ 19. The CSB has not taken
any action in the ensuing 10 years to promulgate
reporting regulations. See Def.'s Cross-Mot. for
Summ. J., ECF No. 21 [hereinafter Def.'s Mot.],
Def.'s Stmt. of Issues, ECF No. 21-1 [hereinafter
Def.'s Facts], at 2.
are four non-profit groups and one individual. Plaintiff Air
Alliance Houston (“AAH”) is a “non-profit
environmental advocacy group that works to reduce air
pollution and other health and safety threats, ” with
their efforts focused on the Houston Ship Channel area.
Compl. ¶ 8. AAH states that as a result of the CSB's
failure to promulgate release reporting requirements, its
staff has been directly exposed to and harmed by chemical
releases when taking air quality readings after Hurricane
Harvey, visiting constituent communities, and leading their
daily lives as a result of their proximity to various
industrial facilities. See Pls.' Mot. for Summ.
J., ECF No. 15 [hereinafter Pls.' Mot.], ¶ 11;
see also id., Ex. A, ECF No. 15-1 [hereinafter
Nelson Decl.], ¶ 8. Moreover, AAH asserts that it has
expended unnecessary resources to ascertain information that
would “conceivably be immediately reported” under
the required regulations. Nelson Decl. ¶ 8.
Public Employees for Environmental Responsibility
(“PEER”) is a nonprofit organization
headquartered in Silver Spring, Maryland. Compl. ¶ 9.
PEER's mission includes “educating the public and
speaking out, as well as defending those who speak out, about
environmental ethics and compliance with environmental
laws.” Id. PEER avers that it works nationwide
with scientists, land managers, field specialists, and other
environmentally focused professionals, but it does not allege
any specific harm to it or its nationwide network as a result
of the CSB's inaction. See generally Compl.
Louisiana Bucket Brigade (“LBB”) is a nonprofit
“environmental health and justice organization”
that works with communities that neighbor Louisiana's oil
refineries and chemical plants. See id. ¶ 10;
see also Pls.' Mot., Ex. B, ECF No. 15-2
[hereinafter Rolfes' Decl.], Attachment A [hereinafter
LBB Bylaws]. LLB's membership consists of contributors to
the organization, volunteer air samplers, members of local
community groups that LBB supports, and the
organization's officials. Rolfes Decl. ¶ 4; LBB
Bylaws § II.1. LBB asserts that its members live or work
near chemical plants, and additionally, that they partake in
an annual awareness-raising bicycle ride through contaminated
areas, during which members have experienced “burning
of the eyes, difficulty breathing, and overall
discomfort” from accidental chemical releases.
Rolfes' Decl. ¶ 9. Furthermore, LBB asserts that the
lack of reporting requirements has made it “exceedingly
difficult” to perform one of its functions of providing
timely information about accidental releases to its members.
Id. ¶ 7.
United Support and Memorial for Workplace Fatalities
(“USMWF”) is a nonprofit organization that offers
“support, guidance, and resources to those affected by
preventable work-related deaths or serious injuries, ”
such as accidents within chemical plants. Compl. ¶ 11.
USMWF alleges that due to the lack of reporting requirements
it has had to expend “additional resources,
organizational time, and money” to supply information
to families impacted by accidental chemical releases.
See Pls.' Mot., Ex. C, ECF No. 15-3, ¶ 7.
Moreover, USMWF cites several events where USMWF and the
families it serves have been harmed by chemical leaks, which
it avers could have been prevented if the CSB had promulgated
the required reporting regulations. Id. ¶ 16.
final Plaintiff, Dr. Neil Carman, Ph.D., is the Clean Air
Program Director of the Sierra Club Lone Star Chapter in
Texas. See Pl.'s Mot., Ex. D., ECF No. 15-4,
¶¶ 1, 3. Dr. Carman asserts that his ability to
provide information to Sierra Club members regarding toxic
air pollution and its health effects has been impaired by the
CSB's failure to promulgate reporting requirements.
See generally ¶¶ 11, 17. Additionally, Dr.
Carman cites to several instances where Sierra Club members
living in close proximity to chemical accidents suffered
injuries, such as exposure to “high levels of toxic
air, ” due to delays in the release of chemical
accident information, such as several incidents that occurred
when Hurricane Harvey came ashore in August 2017.
Id. ¶¶ 10, 13.
December 7, 2017, Plaintiffs filed a one-count complaint
against the CSB seeking declaratory relief and an injunction
to compel the CSB to promulgate the reporting regulations.
See Compl. Plaintiffs contend that the CSB's
failure to implement reporting regulations in the 27 years
since Congress amended the CAA violates the prohibition in
the Administrative Procedure Act (“APA”) against
agency action unlawfully withheld or unreasonably delayed.
See Compl. ¶ 3 (citing 5 U.S.C. § 706(1)).
Plaintiffs further allege that as public interest
organizations “dedicated to ensuring accidental
chemical releases are reported, ” the CSB's
unreasonable delay has caused various injuries to the
organizations and their members. Id. ¶ 2.
29, 2018, Plaintiffs filed a motion for summary judgment.
See Pls.' Mot. The CSB opposed and filed a
cross-motion for summary judgment on July 13, 2018, asserting
that (1) Plaintiffs lack standing to invoke the court's
jurisdiction, and (2) the agency's inaction was not
“unreasonably delayed.” See Def.'s
Cross Mot. for Summ. J., ECF No. 21, Def.'s Mem. in
Support of Def.'s Mot for Summ. J., ECF No. 21-1
[hereinafter Def.'s Mem.]. The parties' motions are
now ripe for consideration.
must, the court first evaluates Plaintiffs' standing,
before turning to the merits. See Steel Co. v. Citizens
for a Better Environment, 523 U.S. 83, 89 (1998).