Center for Biological Diversity v. United States Environmental Protection Agency ( 2012 )

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
_______________________________________________________
CENTER FOR BIOLOGICAL DIVERSITY, CENTER
FOR FOOD SAFETY, FRIENDS OF THE EARTH,
INTERNATIONAL CENTER FOR TECHNOLOGY
ASSESSMENT, and OCEANA,
Plaintiffs,
v. 1:10-CV-985
(FJS)
U.S. ENVIRONMENTAL PROTECTION AGENCY and
LISA JACKSON,
Defendants.
_______________________________________________________
APPEARANCES OF COUNSEL
WESTERN ENVIRONMENTAL LAW DANIEL GALPERN, ESQ.
CENTER
1216 Lincoln Street
Eugene, Oregon 97401
Attorneys for Plaintiffs
EARTHJUSTICE J. MARTIN WAGNER, ESQ.
426 17th Street, 6th Floor SARAH HELEN BURT, ESQ.
Oakland, California 94612
Attorneys for Plaintiffs
U.S. DEPARTMENT OF JUSTICE ANGELINE PURDY, ESQ.
Environmental Defense Section
601 D Street, NW
Suite 8000
Washington, D.C. 20004
Attorneys for Defendants
SCULLIN, Senior Judge
ORDER
Plaintiffs Center for Biological Diversity, Center for Food Safety, Friends of the Earth,
International Center for Technology Assessment, and Oceana (collectively, "Plaintiffs") seek to
compel Defendants U.S. Environmental Protection Agency and its Administrator, Lisa Jackson
(together, "Defendant EPA"), to respond to three rulemaking petitions regarding the regulation of
emissions from marine vessels, aircraft, and other non-road engines and vehicles under the Clean
Air Act, 42 U.S.C. § 7401 et seq. ("CAA"). See generally Dkt. No. 1, Complaint. Between
October 2007, and January 2008, Plaintiffs submitted three petitions to Defendant EPA, asking it
to use its authority to regulate greenhouse gas emissions from marine vessels, aircraft, and other
non-road vehicles. See id. at ¶¶ 48-50.
Plaintiffs' complaint sets forth the following four claims against Defendant EPA: (1) for
violations of the CAA for unreasonably delaying in responding to Plaintiffs' three rulemaking
petitions under 42 U.S.C. § 7604(a); (2) for violations of section 213(a) of the CAA, 42 U.S.C.
§ 7547(a)(4), for failure to determine whether emissions of greenhouse gases and black carbon
from marine vessels and engines cause or contribute to dangerous air pollution; (3) for violations
of section 213(a) of the CAA, 42 U.S.C. § 7547(a)(4), for failure to determine whether emissions
of greenhouse gases and black carbon from non-road vehicles and engines cause or contribute to
dangerous air pollution; and (4) for violations of section 231(a)(2)(A) of the CAA, 42 U.S.C.
§ 7571(a)(2)(A), for failure to determine whether emissions of greenhouse gases and black
carbon from aircraft engines cause or contribute to dangerous air pollution. See generally
Complaint.
On August 20, 2010, Defendant EPA filed a motion to dismiss counts two, three, and four
of Plaintiffs' complaint. See Dkt. No. 9. In a Memorandum Opinion and Order dated July 5,
2011, the Court (Kennedy, J.) granted that motion as to claims two and three but denied it as to
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claim four. See Dkt. No. 25. Currently before the Court are the parties' cross-motions for
summary judgment with regard to Plaintiffs' remaining claims. The Court heard oral argument
regarding these motions on March 14, 2012.
Having carefully reviewed the entire record in this matter, the parties' submissions and
oral arguments, as well as the applicable law, and for the reasons stated at oral argument, the
Court hereby
ORDERS that the parties' cross-motions for summary judgment are DENIED as moot
with regard to Plaintiffs' first claim because Defendant EPA has agreed in both its motion papers
and during oral argument that it will respond to Plaintiffs' three outstanding rulemaking petitions
within ninety days of the date of this Order; and Defendant EPA is hereby ORDERED to do the
same; and the Court further
ORDERS that Defendant EPA's motion for summary judgment is GRANTED and
Plaintiffs' motion for summary judgment is DENIED with regard to Plaintiffs' fourth claim
because Plaintiffs have not shown that Defendant EPA has unreasonably delayed in determining
whether aircraft engine emissions cause or contribute to air pollution which may reasonably be
anticipated to endanger public health or welfare;1 and the Court further
1
The Court reminds Defendant EPA that the degree to which it is entitled deference and
discretion is neither unlimited nor unchecked; and, although the Court finds that Defendant EPA
has not yet unreasonably delayed in making an endangerment determination under section 231 of
the CAA regarding emissions from aircraft engines, such a finding does not entitle Defendant
EPA to delay unduly in taking the appropriate agency action.
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ORDERS that Plaintiffs' counsel shall initiate a telephone conference, using a
professional telephone conferencing service, with the Court and opposing counsel on Tuesday,
June 26, 2012, at 9:30 a.m.
IT IS SO ORDERED.
Dated: March 20, 2012
Syracuse, New York
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