Nucor Steel-Arkansas v. Pruitt ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
NUCOR STEEL-ARKANSAS & )
NUCOR-YAMATO STEEL )
COMPANY, )
)
Plaintiffs, )
)
v. ) No. 14-cv-0199 (KBJ)
)
SCOTT PRUITT, in his official capacity )
as Administrator, U.S. Environmental )
Protection Agency, )
)
Defendant. )
)
MEMORANDUM OPINION
This case is nominally a procedural action that Plaintiffs Nucor Steel-Arkansas
and Nucor-Yamato Steel Company (collectively, “Nucor”) have filed against the
Administrator of the Environmental Protection Agency (“EPA”) pursuant to one of the
citizen-suit provisions of the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401–7671q. See
id. § 7604(a)(2) (authorizing lawsuits against the Administrator of the EPA where the
agency has allegedly failed to perform a non-discretionary duty). But in the broader
scheme of things, this matter is actually one of many battlegrounds in a multi-front
conflict between two competing steel-manufacturing companies with facilities in
Mississippi County, Arkansas. Nucor operates two manufacturing facilities near
Blytheville, Arkansas, which is approximately twenty miles from a site in Osceola,
Arkansas, at which Big River Steel Company (“Big River Steel”) has proposed to build
a new manufacturing facility. (See Nucor’s Second Suppl. & Am. Compl. (“Compl.”),
ECF No. 40, ¶¶ 4–5, 10.) 1 Big River Steel obtained a permit from the Arkansas
Department of Environmental Quality (“ADEQ”) that authorized the construction and
operation of its planned facility, and Nucor responded by launching legal attacks
against the permit, both in the Arkansas state court system and in the U.S. District
Court for the Eastern District of Arkansas. See Nucor Steel-Arkansas v. Ark. Pollution
Control & Ecology Comm’n (Nucor I), 478 S.W.3d 232 (Ark. 2015); Nucor Steel-
Arkansas v. Big River Steel, LLC (Nucor II), 825 F.3d 444 (8th Cir. 2016). 2
Significantly for present purposes, Nucor has also sought to challenge Big River
Steel’s permit by petitioning the EPA to object to the permit under Title V of the CAA,
42 U.S.C. §§ 7661–7661f. Per Title V, the EPA may object to any operating permit that
a state permitting authority issues if the permit does not comply with the CAA, id.
§ 7661d(b)(1), and if EPA fails to object on its own, any person may petition the agency
to issue an objection, id. § 7661d(b)(2). When the EPA failed to respond timely to
Nucor’s petition for an objection to Big River Steel’s permit, Nucor filed this lawsuit,
seeking a court order that compels the EPA to respond to Nucor’s petition. (See
Compl., Prayer for Relief, ¶ B.)
Before this Court at present is the EPA’s motion to dismiss Nucor’s complaint.
(See EPA’s Mot. to Dismiss Second Suppl. & Am. Compl. for Lack of Jurisdiction
(“Mot.”), ECF No. 43.) In the motion, the agency contests Nucor’s various stated bases
for Article III standing, only one of which this Court finds worthy of discussion here. 3
1
Big River Steel is participating in this lawsuit as an amicus curiae. (See Order, ECF No. 34.)
2
Both of these legal challenges were ultimately unsuccessful. See Nucor I, 478 S.W.3d at 236–37;
Nucor II, 825 F.3d at 446–47.
3
In order to demonstrate that it has standing to sue, a plaintiff needs to identify only one type of
cognizable injury-in-fact, and therefore, a court “need not address” alternative theories of injury once
2
Specifically, Nucor’s complaint asserts that, by operation of a set of rules within the
CAA known as the Prevention of Significant Deterioration (“PSD”) program, the
permitted emissions from the new Big River Steel mill will cause a construction project
that Nucor has planned to undertake at one of its Arkansas facilities to be subject to
more stringent emissions limitations than would have applied to Nucor’s project
otherwise. (See Compl. ¶¶ 63, 71–81.) The EPA argues that Nucor has not adequately
alleged that Big River Steel’s permit will cause Nucor imminent injury in this way,
because the complaint does not sufficiently assert that Nucor has any imminent
construction plans that will require PSD-program review or that such plans would
actually be affected by Big River Steel’s emissions. (See Mot. at 18–23.) 4
For the reasons explained below, this Court agrees with Nucor that certain
allegations in the complaint are sufficient to demonstrate (for the purpose of the
pleading stage of this litigation) that Big River Steel’s permit works a plausible and
imminent injury to Nucor in the form of more stringent limitations under the PSD
program. (See, e.g., Compl. ¶ 78 (alleging that one of Nucor’s facilities “is currently
pursuing permit modifications that may require PSD review”); id. ¶ 28 (asserting that
Big River Steel’s emissions “will impact the overall air quality of Mississippi County,
including the air quality in and around Nucor’s facilities”).) Consequently, this Court
finds that the complaint adequately alleges Nucor’s standing to bring the instant
lawsuit, which means that the EPA’s motion to dismiss for lack of standing must be
DENIED. A separate order consistent with this Memorandum Opinion will follow.
one injury-in-fact is established. Sierra Club v. EPA, 755 F.3d 968, 976 n.2 (D.C. Cir. 2014).
4
Page-number citations to the documents the parties have filed refer to the page numbers that the
Court’s electronic filing system automatically adds.
3
I. BACKGROUND
This Memorandum Opinion addresses the EPA’s contention that Nucor lacks
Article III standing because its complaint does not adequately allege that Nucor has
imminent construction plans that the emissions from Big River Steel’s new facility will
affect by operation of the PSD program. Notably, the EPA appears to accept Nucor’s
suggestion that an injury of the type Nucor alleges can constitute a concrete,
particularized injury that would confer Article III standing if an entity that has
imminent construction plans demonstrates that it actually would be harmed in this way.
In order to evaluate the EPA’s assertion that Nucor’s complaint fails to make an
adequate showing of imminent injury, it is important to understand how the operation of
the PSD program could possibly inflict a cognizable injury-in-fact for standing
purposes, and achieving that understanding requires background knowledge of the
overall CAA scheme and the contours of the PSD program, both of which are sketched
out below.
A. The Clean Air Act Framework
With the CAA Amendments of 1970, Congress enacted a “comprehensive
national program that made the States and the Federal Government partners in the
struggle against air pollution.” Gen. Motors Corp. v. United States, 496 U.S. 530, 532
(1990). At the heart of the CAA are the National Ambient Air Quality Standards
(“NAAQS”), which are specified numerical thresholds for the concentration of
particular pollutants in the outdoor air (also known as the “ambient” air). See 42 U.S.C.
§ 7409. Because of their role within the overall statutory scheme, the NAAQS are
generally considered to be “the engine that drives nearly all of Title I of the CAA.”
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).
4
The CAA requires the EPA “to promulgate NAAQS for each air pollutant” about
which the agency has made certain findings, id. at 462; see also 42 U.S.C. § 7409(a),
and the agency must set these uniform, nationally applicable pollution standards at the
levels necessary “to protect the public health,” 42 U.S.C. § 7409(b)(1), while also
providing for “an adequate margin of safety,” id., and “accurately reflect[ing] the latest
scientific knowledge” about the effects on public health from the presence of each
pollutant in the ambient air, id. § 7408(a)(2). To date, the EPA has promulgated
NAAQS for six types of air pollutants. Util. Air Regulatory Grp. v. EPA (UARG), 134
S. Ct. 2427, 2435 (2014); see 40 C.F.R. pt. 50. As pertinent here, there are two
NAAQS that relate to a pollutant called “particulate matter”: one that applies to PM 2.5
and another that applies to PM 10 . See 40 C.F.R. §§ 50.6 (setting NAAQS for PM 10 ),
50.13, 50.18 (setting NAAQS for PM 2.5 ). 5
The States’ Role In The Regulation Of New And Modified
Stationary Sources Under The CAA
Once the EPA establishes a NAAQS for a particular pollutant, each state assumes
the lead role in implementing that air quality standard, with each state adopting (subject
to EPA approval) “a plan which provides for implementation, maintenance, and
enforcement” of that NAAQS. 42 U.S.C. § 7410(a)(1). 6 Each state’s implementation
plan (“SIP”) is subject to certain minimum requirements laid out in the CAA, see id.
§ 7410(a)(2), but “[i]t is to the States that the CAA assigns initial and primary
responsibility for deciding what emissions reductions will be required from which
5
These two NAAQS reflect different particle sizes. PM 2.5 takes account of particles with a diameter of
2.5 micrometers or less, while PM 10 takes account of particles with a diameter of 10 micrometers or
less. See 40 C.F.R. §§ 50.6, 50.7, 50.13.
6
The EPA has approved Arkansas’s SIP. See 40 C.F.R. §§ 52.170, 52.172.
5
sources” in order to achieve the NAAQS. Am. Trucking Ass’ns, 531 U.S. at 470; see
also 42 U.S.C. § 7407(a) (“Each State shall have the primary responsibility for assuring
air quality within the entire geographic area comprising such State by submitting [a
SIP] which will specify the manner in which [the NAAQS] will be achieved and
maintained within each air quality control region in such State.”).
As a general matter, through its SIP, each state implements a permit program that
requires each new and modified major stationary source of pollution to seek a pre-
construction permit that sets emissions limitations for that source. See Texas v. EPA,
726 F.3d 180, 183–84 (D.C. Cir. 2013); see also 42 U.S.C. §§ 7410(a)(2)(C). For
example, in Arkansas, the ADEQ issues pre-construction permits, Nucor II, 825 F.3d at
447; see Ark. Code §§ 8-4-201, 203, and any entity that plans to build a new major
emitting facility, or modify an existing one, must apply to the ADEQ for a permit that,
if granted, contains allowable emissions levels pertaining to that source, Nucor II, 825
F.3d at 447.
Importantly, the particular emissions limitations that apply to a new or modified
source depend on where the source is located. The EPA divides the country into “air
quality control regions” and classifies each region as being in “attainment,” or in “non-
attainment,” or treats the region as “unclassifiable,” with respect to each NAAQS. 42
U.S.C. § 7407(d)(1)(B); see 40 C.F.R. pt. 81, subparts B–C. And these designations
dictate which emissions limitations the states must impose in any pre-construction
permits that they issue in a particular region. See 42 U.S.C. §§ 7475 (setting permit
requirements for sources in “attainment” and “unclassifiable” regions), 7503 (setting
permit requirements for sources in “non-attainment” regions).
6
In essence, “the [CAA] triggers more or less stringent [emissions] requirements
depending on the quality of an area’s ambient air.” Catawba Cty, N.C. v. EPA, 571
F.3d 20, 26 (D.C. Cir. 2009). Furthermore, the EPA can change a region’s designation
“at any time[,]” based on “any . . . air quality-related considerations the Administrator
deems appropriate[.]” 42 U.S.C. § 7407(d)(3)(A).
The PSD Program
In regions that have been designated “attainment” or “unclassifiable,” the CAA
requires states to implement the statute’s Prevention of Significant Deterioration
(“PSD”) program. See id. § 7471. The PSD program is so named because, in
attainment and unclassifiable regions, the pre-construction permits that states issue have
to impose the emissions limitations that are “necessary . . . to prevent significant
deterioration of air quality,” 42 U.S.C. § 7471 (emphasis added); hence, the pre-
construction permits that the states issue in those regions are known as “PSD permits,”
Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 470, 472 (2004). When a
major new or modified emitting facility seeks a PSD permit, it is required to certify that
it will comply with a number of requirements. See 42 U.S.C. § 7475. One such
requirement is that the new or modified facility must employ the best available control
technology (“BACT”) for each pollutant subject to the PSD program. Id. § 7475(a)(4).
Another is that the facility must “demonstrate[]” that its emissions “will not cause, or
contribute to, air pollution in excess of any . . . [NAAQS] in any air quality control
region[.]” Id. § 7475(a)(3).
In addition, and importantly for this case, the applicant must also
“demonstrate[]” that its emissions “will not cause, or contribute to, air pollution in
excess of any . . . maximum allowable increase or maximum allowable concentration
7
for any pollutant in any area [subject to the PSD program] more than one time per
year[.]” Id. With respect to this last requirement, the “maximum allowable increase”
for a particular pollutant is known as the PSD “increment.” Alaska Dep’t of Envtl.
Conservation, 540 U.S. at 473; see also 42 U.S.C. § 7473 (setting “increments” for
specific pollutants).
The PSD increment is a number that is expressed as an ambient concentration of
a given pollutant in micrograms per meter cubed (µg/m 3 ), and it reflects “the maximum
allowable increase in concentration[ of a pollutant] . . . over the baseline
concentration.” 42 U.S.C. § 7473(b)(2); see also 40 C.F.R. § 52.21(c) (setting PSD
increments). The EPA establishes the “baseline concentration” for a given pollutant,
and the baseline, which varies from region to region, is generally equal to the
concentration of the pollutant that was present in the ambient air at the time the first
application for a PSD permit in a particular region was submitted. See 42 U.S.C.
§ 7479(4); see also 40 C.F.R. § 52.21(b)(13)–(15). The PSD increment—which, as
explained, is the maximum allowable increase above the baseline—is a single number
that the EPA fixes for each pollutant, and it applies to all regions that have been
designated as “attainment” or “unclassifiable” with respect to that pollutant; for
example, in the case of PM 2.5 and PM 10 , the established PSD increments are 4 and 17
µg/m 3 , respectively. See 40 C.F.R. § 52.21(c). 7 What this means, as a general and
practical matter, is that all new or modified stationary sources of pollution in attainment
7
These numbers reflect the “annual arithmetic mean” PSD increments—that is, the maximum allowable
increase in the ambient concentration of each pollutant as measured over the course of a year. See 40
C.F.R. § 52.21(c). Moreover, these numbers apply in “Class II areas,” see id., which the law defines as
all areas other than certain large national and international parks, see 42 U.S.C. § 7472.
8
and unclassifiable areas must be mindful not to construct facilities whose emissions of a
pollutant would cause the region to exceed the PSD increment for that pollutant.
The method by which a new or modified facility must demonstrate that it will not
“cause or contribute to” air pollution in excess of the PSD increment, 42 U.S.C.
§ 7475(a)(3), is critical to Nucor’s PSD-related theory of injury in this case. In brief,
each PSD-permit applicant must begin by conducting an air quality impact analysis that
identifies the area in which the proposed new or modified facility will have a
significant impact on air quality. See 42 U.S.C. § 7475(a)(6); 40 C.F.R. § 52.21(m);
see also Environmental Protection Agency, New Source Review Workshop Manual
C.26–31 (Draft, Oct. 1990) (hereinafter “NSRWM”). This “impact area” is “a circular
area” that is centered on the proposed facility and has a radius that extends out either 50
kilometers or to the most distant point where air modeling suggests that a significant
impact will occur, whichever is less. See NSRWM at C.26. Next, the PSD permit
applicant must develop an inventory of “all increment-affecting sources located in the
impact area” as well as “all increment-affecting sources located within 50 kilometers of
the impact area . . . if they, either individually or collectively, affect the amount of PSD
increment consumed.” Id. at C.35. Sources are “increment-affecting” (and thus must
be included in the inventory) if they have caused a change in emissions subsequent to
the setting of the baseline concentration. See id.
Finally, after assembling this inventory of nearby sources that already affect the
PSD increment, the permit applicant must demonstrate that its proposed facility, in
conjunction with the pre-existing facilities, will not cause the PSD increment to be
exceeded. See 40 C.F.R. § 52.21(k)(ii); see also id. § 52.21(b)(13)(ii)(a) (explaining
9
that emissions from other sources constructed after the baseline concentration has been
set “affect the applicable maximum allowable increase[]” that a new facility must take
into account when applying for a PSD permit). Put another way, once the baseline
concentration of a given pollutant has been set in a particular region, any facility
constructed thereafter that increases the ambient concentration of that pollutant
“consumes” a portion of the PSD increment, leaving less of the increment available for
subsequent new facilities in the region to use. NSRWM at C.10.
B. Underlying Facts And Procedural History
Big River Steel is currently constructing a steel mill near the town of Osceola in
Mississippi County, Arkansas. (Compl. ¶¶ 1, 9.) Mississippi County is part of the
Northeast Arkansas Intrastate Air Quality Control Region, see 40 C.F.R. § 81.139,
which the EPA has classified as “attainment” or “unclassifiable” with respect to PM 2.5
and PM 10 , see id. § 81.304, and thus the area is subject to the PSD program, see 42
U.S.C. § 7471.
In January of 2013, Big River Steel applied to ADEQ for a pre-construction PSD
permit related its new mill, and it did so at the same time that it sought an operating
permit under Title V of the CAA with respect to the proposed new facility. See Nucor
I, 478 S.W.3d at 237–38 & n.1. The basic requirements for seeking and receiving a
PSD permit are described above, see supra, Part I.A.2, while the purpose and
procedures for operating permits under Title V—which is the vehicle pursuant to which
the instant case is brought—are as follows.
1. The Title V Permitting Process
Title V of the CAA mandates that each major stationary source obtain a facility-
wide operating permit that lays out all federally enforceable emissions limitations
10
applicable to that facility. See Sierra Club v. EPA, 551 F.3d 1019, 1022 (D.C. Cir.
2008); 42 U.S.C. §§ 7661–7661f. Title V “is designed to facilitate compliance and
enforcement by consolidating into a single document all of a facility’s obligations under
the Act.” UARG, 134 S. Ct. at 2436. Title V operating permits are distinct from PSD
permits, see id. at 2435–36, but PSD-permit requirements are among the obligations
that must be included in a Title V permit, see 40 C.F.R. § 70.2 (defining “applicable
requirement” for the purposes of Title V to include “[a]ny term or condition of any
preconstruction permits” issued under the PSD program). The EPA allows states to
consolidate their PSD and Title V permits, see EPA, Operating Permit Program, 57 Fed.
Reg. 32,250, 32,259 (July 21, 1992), and Arkansas has done so, see Nucor II, 825 F.3d
at 453; Nucor I, 478 S.W.3d at 238 n.1. Moreover, having a Title V permit shields a
facility from the charge of operating in violation of the CAA, because once a facility
obtains a Title V permit, Title V’s “permit shield” provision dictates that “compliance
with the permit shall be deemed compliance with” the statute. 42 U.S.C. § 7661c(f);
see also Sierra Club, 551 F.3d at 1022.
Significantly for present purposes, Title V establishes that a state permitting
authority must subject each Title V permit application to public comment and judicial
review by the state’s courts, 42 U.S.C. § 7661a(b)(6), and it must also transmit all
proposed Title V permits to the EPA for review, id. § 7661d(a)(1). If, upon review of a
Title V application, the EPA determines that the proposed Title V permit would violate
the CAA in any respect, it “shall . . . object to its issuance” and “provide a statement of
reasons for the objection” to the state permitting authority and to the permit applicant.
Id. § 7661d(b)(1). If the state permitting authority receives an EPA objection, it may
11
respond by submitting a revised permit to the EPA, but it must refrain from issuing the
permit. 42 U.S.C. § 7661d(b)(3). And once it has objected, the EPA makes the final
decision whether to deny the permit or issue it with revisions, id. § 7661d(c);
consequently, an objection from the EPA is effectively a “veto[.]” Operating Permit
Program, 57 Fed. Reg. at 32,256.
However, if the EPA does not object within forty-five days of receiving a
proposed Title V permit, “any person” may petition the EPA to object on any ground
that was raised during the state permitting authority’s public comment period. 42
U.S.C. § 7661d(b)(2). The EPA must grant or deny any such petition for an objection
within sixty days of receiving it, and “shall issue an objection [i.e. grant the petition]
within such period if the petitioner demonstrates . . . that the permit is not in
compliance” with the CAA. Id. 8 The EPA’s denial of a petition for an objection is
subject to judicial review in the appropriate Court of Appeals. Id.; see also id.
§ 7607(b)(1). 9 In addition, if the EPA fails to take any action on the petition, the
CAA’s citizen-suit provision supplies a cause of action for the petitioner to bring a suit
against the EPA in federal district court for “a failure . . . to perform any act or duty
under [the CAA] which is not discretionary[.]” Id. § 7604(a)(2).
8
The EPA maintains an online list of Title V petitions and its decisions on those petitions. See EPA,
Title V Petition Database, www.epa.gov/title-v-operating-permits/title-v-petition-database (last visited
Mar. 29, 2017).
9
Because this pathway exists for judicial review of Title V permits, the CAA’s citizen suit provision,
42 U.S.C. § 7604, does not encompass direct challenges to Title V permits in district court. See Nucor
II, 825 F.3d at 452–53; Romoland Sch. Dist. v. Inland Empire Energy Ctr. LLC, 548 F.3d 738, 754–55
(9th Cir. 2008). Of course, judicial review from a state permitting authority’s decision to grant a Title
V permit is available in state court. 42 U.S.C. § 7661a(b)(6) (requiring state judicial review of Title V
permitting decisions); see, e.g., Ark. Code §§ 8-4-205, 223(a)(1), (d) (prescribing judicial review for
ADEQ permitting decisions in the Arkansas Court of Appeals); see also, e.g., Nucor I, 478 S.W.3d 232
(reviewing ADEQ Title V permitting decision).
12
Big River Steel’s Permit Application And Nucor’s Response To It
Big River Steel’s application to the ADEQ regarding the new steel mill that it
proposed to build Osceola, Arkansas, contained an air quality analysis that predicted
that the new mill would contribute 2.47 µg/m 3 to the ambient concentration of PM 2.5 in
the region, bringing the total concentration to 11.91 µg/m 3 , just below the NAAQS of
12 µg/m 3 . See Nucor I, 478 S.W.3d at 237–38. 10 ADEQ issued a draft permit in June
2013, which triggered a public comment period. Id. at 238. Nucor had “actively
followed” its prospective neighbor’s permit application, and it “submitted over forty
comments” to ADEQ, “most objecting to the technical aspects of [Big River Steel]’s
modeling and to a perceived bias in ADEQ’s evaluation of [Big River Steel]’s
application.” Id. Over Nucor’s vigorous objection, ADEQ issued a final permit on
September 18, 2013. Id.
Nucor then proceeded to press its opposition to Big River Steel’s Osceola mill on
several fronts. It appealed ADEQ’s permit, first, to the Arkansas Pollution Control and
Ecology Commission, which affirmed the permit, and then to the Arkansas Court of
Appeals, which in turn affirmed the Commission. Nucor I, 478 S.W.3d at 236–37.
Nucor also sued Big River Steel directly in the U.S. District Court for the Eastern
District of Arkansas, challenging the permit under the portions of the CAA’s citizen-
suit provision allowing for claims against private parties. See 42 U.S.C. § 7604(a)(1),
(3). That court dismissed Nucor’s complaint for lack of subject matter jurisdiction, see
Nucor Steel-Arkansas v. Big River Steel, LLC, 93 F. Supp. 3d 983, 992–93 (E.D. Ark.
2015), and the Eighth Circuit affirmed, see Nucor II, 825 F.3d at 447.
10
12 µg/m 3 represents the primary annual arithmetic mean NAAQS for PM 2.5 . See 40 C.F.R. § 50.18.
13
In addition, and directly relevant here, on October 9, 2013, Nucor petitioned the
EPA to object to the permit under 42 U.S.C. § 7661d, raising many of the concerns that
Nucor had previously flagged during ADEQ’s public comment period. (Compl. ¶¶ 95–
96.) Among other things, Nucor asserted that, when ADEQ issued the permit to Big
River Steel, ADEQ failed to monitor the pre-existing concentration of PM 2.5 properly,
failed to model the air quality impacts of the Big River Steel mill, and failed to
establish an appropriate BACT standard. (Compl. ¶ 57.)
Procedural History
The EPA did not respond to Nucor’s petition within the sixty-day statutory
window. (See Compl. ¶ 97 (citing 42 U.S.C. § 7661d(b)).) After giving the agency the
requisite notice of its intent to sue (see Compl. ¶ 92 (citing 42 U.S.C. § 7604(b)(2))),
Nucor filed this lawsuit on February 11, 2014, alleging that the EPA’s ongoing failure
to respond to Nucor’s petition constitutes “a failure of the Administrator to perform any
act or duty . . . which is not discretionary[.]” 42 U.S.C. § 7604(a)(2). Nucor’s
complaint seeks an order requiring the EPA to grant or deny its petition for an objection
within 30 days. (See Compl., Prayer For Relief, ¶ B.)
Since filing this lawsuit, Nucor has twice amended its complaint (once with the
Court’s leave and once under Court order) in response to motions to dismiss
challenging its standing to sue, and both times, Nucor has expanded the complaint’s
allegations in support of standing. (See Pl.’s Mot. for Leave to File First Suppl. & Am.
Compl, ECF No. 19; Mot. for Leave to File Second Suppl. & Am. Compl., ECF No. 39.)
14
In its now-operative pleading, which is titled the Second Supplemental and Amended
Complaint, Nucor asserts several theories of injury. 11
First, Nucor alleges that particulate matter emissions from the new Big River
Steel facility “will reach the Nucor mills given the short distance between them,” and
“will negatively impact Nucor’s employees’ health and productivity, which impacts the
operations at Nucor’s facilities.” (Compl. ¶¶ 27, 29.) Second, Nucor alleges that
particulate matter emissions from the Big River Steel facility will damage Nucor’s
property by polluting a 350-acre wildlife area that Nucor preserves for its employees’
leisure (see id. ¶¶ 36–52), and by “stain[ing] and damag[ing] buildings and other
property owned by Nucor” (id. ¶ 54). Third, Nucor alleges that it will suffer
competitive injury if ADEQ issues permits to Nucor in the future that, either initially or
as the result of an EPA objection, impose emissions limitations on Nucor that should
have been, but were not, imposed on Big River Steel. (See id. ¶¶ 57–62). Fourth,
Nucor alleges that Big River Steel’s Title V permit contains unrealistic BACT
requirements, which will force Nucor to implement more expensive emissions control
technologies in the future when it submits its own permit applications. (See id. ¶¶ 82–
86.) Fifth, Nucor alleges that emissions from the Big River Steel facility will cause the
ambient concentration of PM 2.5 to exceed the NAAQS (see id. ¶ 63), which “will result
in Mississippi County being reclassified as ‘nonattainment’” (id. ¶ 64), leading to
additional regulatory burdens for Nucor (see id. ¶¶ 65–68). Sixth and finally, Nucor
alleges that emissions from the Big River Steel facility will partially or completely
11
For simplicity’s sake, the Court refers to the Second Supplemental and Amended Complaint as “the
complaint” throughout this opinion.
15
consume the regional PSD increments for PM 2.5 and PM 10 , constraining any future
Nucor construction project that generates particulate matter emissions and that requires
PSD review. (See id. ¶¶ 63, 72–81.)
With respect to the contention that the Big River Steel mill will consume some or
all of the pertinent PSD increment, Nucor alleges, first of all, that it is “nearly certain”
that its two mills in Arkansas will undergo PSD review in connection with future
modification projects. (Id. ¶ 78.) Furthermore, in support of this prediction, Nucor
alleges that both of its mills have previously been subject to PSD review (see id. ¶¶ 4–
5); that one of its two mills “is currently pursuing permit modifications that may require
PSD review” (id. ¶ 78); and that over the past 25–30 years, its two mills have averaged
almost an ADEQ-air-permit modification per year apiece, “[m]any” of which required
PSD review (id.). Nucor also alleges that any PSD permit applications that it might
seek in the future will be meaningfully constrained by Big River Steel’s emissions (see
id. ¶¶ 78, 80–81), because Big River Steel’s new facility is located just 20 miles upwind
of Nucor’s mills (see id. ¶¶ 10–11) and is in the same air quality control region as
Nucor’s mills (see id. ¶ 8), and Nucor maintains that Big River Steel’s new mill will
emit particulate matter that “will reach the Nucor mills” (id. ¶ 27) and “impact the
overall air quality in Mississippi County” (id. ¶ 28).
In its pending motion to dismiss, the EPA argues that Nucor lacks standing to
sue because none of its asserted injuries amounts to an “injury-in-fact” that is
cognizable under Article III of the Constitution. (See generally Mot.) The agency
makes compelling arguments that Nucor’s assertions of injury related to its employees
and property rely on speculation about increased risk of harm and fail to account for
16
Nucor’s own emissions (see id. at 11–14), and that Nucor’s assertions of competitive
injury, injury related to BACT standards, and injury arising from an exceedance of the
NAAQS all rely on speculation about the unpredictable future conduct of third-party
regulators (see id. at 14–17).
As for Nucor’s PSD-increment theory of standing, the EPA maintains that
Nucor’s complaint contains insufficient allegations of fact to support a finding of
standing insofar as it fails to allege adequately that Nucor will imminently need to
secure a PSD permit or that any such permit would likely be more restrictive as a result
of emissions from the Big River Steel facility. (See id. at 18–23.) Nucor responds that
its complaint references a permit modification that one of its Arkansas facilities is
currently pursuing, and thus Big River Steel’s consumption of the PSD increment
affects Nucor’s present behavior. (See Nucor’s Req. for Oral Arg. & Opp’n to EPA’s
Mot. to Dismiss Second Suppl. & Am. Compl. for Lack of Jurisdiction (“Opp’n”), ECF
No. 47, at 37.) Nucor also argues that even if those present effects are insufficient to
confer standing, Nucor has adequately alleged that it will need PSD permits in the
future and that those permits will be impacted by Big River Steel’s emissions. (Id. at
37–39.)
The EPA’s motion to dismiss Nucor’s complaint for lack of standing is now ripe
for decision (see Mot.; Opp’n; EPA’s Reply in Supp. of Mot. to Dismiss Second Suppl.
& Am. Compl. for Lack of Jurisdiction (“Reply”), ECF No. 50); this Court held a
hearing on the motion on May 17, 2016. 12
12
Big River Steel has attempted to participate in this lawsuit in several respects. It has sought leave to
intervene (ECF No. 9), which the Court denied (Order, ECF No. 34); leave to file briefs in support of
EPA as an amicus curiae (ECF Nos. 23, 29, 45), which the Court granted (Order, ECF No. 34; Min.
Order of Nov. 18, 2015); and leave to participate in the Court’s two Motion Hearings (ECF Nos. 36,
17
II. LEGAL STANDARDS
A. Motions To Dismiss For Lack of Standing Under Rule 12(b)(1)
Article III of the Constitution limits the judicial power of the federal courts to
“[c]ases” and “[c]ontroversies[,]” U.S. Const. art. III, § 2, and that limitation creates a
jurisdictional requirement that the plaintiff have standing to sue. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992). Because it is a plaintiff’s burden to demonstrate
that the court has jurisdiction over his claims, “[e]very plaintiff in federal court bears
the burden of establishing the three elements that make up the ‘irreducible
constitutional minimum’ of Article III standing: injury-in-fact, causation, and
redressability.” Dominguez v. UAL Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012)
(quoting Defs. of Wildlife, 504 U.S. at 560–61). Thus, to establish standing in a lawsuit
that seeks an injunction, “a plaintiff must show that he is under threat of suffering
‘injury in fact’ that is concrete and particularized; the threat must be actual and
imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged
action of the defendant; and it must be likely that a favorable judicial decision will
prevent or redress the injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)
(citation omitted).
Courts consider motions to dismiss a complaint for lack of standing pursuant to
Federal Rule of Civil Procedure 12(b)(1). See, e.g., Am. Freedom Law Ctr. v. Obama,
821 F.3d 44, 48 (D.C. Cir. 2016). In evaluating whether the plaintiff has established
the three elements of standing, the Court must be mindful of the stage of the litigation,
because “each element must be supported in the same way as any other matter on which
55), which the Court denied (Min. Order of Jan. 6, 2015; Min. Order of Feb. 29, 2016).
18
the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation.” Defs. of Wildlife, 504 U.S. at 561;
accord Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 912–13 (D.C. Cir. 2015).
Thus, at the pleading stage, “a complaint must state a plausible claim” that the elements
of standing are satisfied, Humane Soc’y of U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir.
2015) (emphasis added) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), and when
deciding whether the plaintiff’s assertion of standing is plausible, “the court must
accept as true all of the factual allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff, but the court need not ‘accept inferences
unsupported by the facts or legal conclusions that are cast as factual allegations.’” Cal.
Clinical Lab. Ass’n v. Sec. of Health & Human Servs., 104 F. Supp. 3d 66, 74 (D.D.C.
2015) (quoting Rann v. Chao, 154 F. Supp. 2d 61, 63 (D.D.C. 2001)). Finally, while
reviewing a motion to dismiss pursuant to Rule 12(b)(1), the Court may consider
material outside of the pleadings as it deems appropriate. Am. Freedom Law Ctr., 821
F.3d at 49.
B. When The Plaintiff Alleges A Procedural Violation, Some Standing
Requirements Are Relaxed But Others Are Not
Often, a plaintiff who is injured by a government action (or its failure to act)
sues to rectify the government’s violation of a procedural requirement that is connected
to the substantive action. In such a lawsuit, a plaintiff “who has been accorded a
procedural right to protect his concrete interests can assert that right without meeting
all the normal standards for redressability and immediacy.” Defs. of Wildlife, 504 U.S.
at 572 n.7. This principle means that the plaintiff need not demonstrate that correcting
the procedural violation itself would necessarily remedy the injurious government
19
action, so long as “there is some possibility” that it would do so. Massachusetts v.
EPA, 549 U.S. 497, 518 (2007). Thus, for example, “one living adjacent to the site for
proposed construction of a federally licensed dam has standing to challenge the
licensing agency’s failure to prepare an environmental impact statement, even though
he cannot establish with any certainty that the statement will cause the license to be
withheld or altered, and even though the dam will not be completed for many years.”
Defs. of Wildlife, 504 U.S. at 572 n.7.
Be that as it may, alleging a procedural violation does not excuse a plaintiff from
having to identify a related, substantive government action that actually does (or
imminently will) cause him concrete injury in order to establish standing to sue. Put
another way, “the requirement of injury in fact is a hard floor of Article III
jurisdiction[,]” and courts have long held that “a procedural right in vacuo . . . is
insufficient to create Article III standing.” Earth Island Inst., 555 U.S. at 496, 497.
Thus, returning to the dam example: the adjacent property owner has standing to
demand an environmental impact statement, notwithstanding the small chance that the
statement will change the government’s decision to license the dam, and without regard
to the fact that construction of the dam is years away (i.e., not imminent). However,
“persons who live (and propose to live) at the other end of the country from the dam”
would not have standing to file suit to enforce the impact-statement requirement. Defs.
of Wildlife, 504 U.S. at 572 n.7. This is because the law permits a somewhat attenuated
connection between the allegedly botched procedure and the underlying injurious
substantive action, but there must always be a causal link between the underlying
substantive action and the plaintiff’s injury. See WildEarth Guardians v. Jewell, 738
20
F.3d 298, 306 (D.C. Cir. 2013); see also Nat’l Ass’n of Home Builders v. EPA, 667 F.3d
6, 15 (D.C. Cir. 2011) (noting that the injurious action must be one “that would
otherwise confer Article III standing” if challenged directly (quoting United Transp.
Union v. ICC, 891 F.2d 908, 918 (D.C. Cir. 1989))). Thus, even a plaintiff whose
procedural rights have been violated cannot establish standing “[w]ithout an imminent
threat of injury traceable to the challenged action[.]” Nat’l Ass’n of Homebuilders, 667
F.3d at 15.
III. ANALYSIS
In its motion to dismiss, the EPA argues that Nucor has failed to establish that it
will suffer an injury-in-fact as a result of the agency’s failure to respond to Nucor’s
petition, because Nucor has not demonstrated that it will be harmed by the underlying
substantive decision at issue (i.e., the EPA’s failure to object to the permit that ADEQ
issued to Big River Steel). (See Mot. at 10–23.) As noted, the agency has dutifully
attacked each of the myriad bases upon which Nucor claims that the emissions from Big
River Steel’s new plant will injure it. (See, e.g., id. at 13 (arguing that Nucor cannot
claim that it is injured by damage that Big River Steel’s emissions will cause to its
property because the “emissions from Nucor’s own mills exceed the permitted
emissions from Big River”).) Nevertheless, as explained below, this Court concludes
that Nucor has asserted a concrete and particularized injury resulting from ADEQ’s
approval of Big River Steel’s new mill, insofar as Nucor plausibly contends that its
current plans to modify its own existing plants are likely to require PSD review yet Big
River Steel’s new facility will consume all or most of the applicable PSD increment.
This Court also finds that correcting the EPA’s alleged procedural violation would
21
create the requisite possibility of redress for this PSD-increment injury, and as a result,
Nucor’s complaint adequately alleges that Nucor has standing to sue.
A. Nucor Has Adequately Alleged An Injury-In-Fact
For the following reasons, this Court concludes that Nucor’s alleged PSD-
increment injury is “concrete and particularized[,]” and is also “actual or imminent, not
conjectural or hypothetical.” Defs. of Wildlife, 504 U.S. at 560 (internal quotation
marks and citations omitted).
Consumption Of The PSD Increment Is A Concrete, Particularized
Injury
As explained above, when a major emitting facility seeks permission to embark
on a construction project that requires PSD review, it must demonstrate that its
emissions will not “cause or contribute to” an exceedance of any applicable PSD
increment. 42 U.S.C. § 7475(a)(3). If other nearby facilities have already emitted
significant amounts of a pollutant, those prior emissions consume the corresponding
PSD increment, leaving less behind for a proposed construction project to consume.
See 40 C.F.R. § 52.21(b)(13)(ii) (providing that emissions from other sources “affect
the applicable maximum allowable increase[]” that a new facility must take into account
when applying for a PSD permit); see also NSRWM at C.26, 34–35 (explaining that a
facility must account for other increment-affecting sources within the area in which it
will have a significant impact). Under this regulatory regime, the mechanics of which
the EPA has laid out in a document called “The New Source Review Workshop
Manual,” if one facility is allowed to emit a given pollutant in a given region, its action
meaningfully constrains many of the future construction projects of its pollution-
22
emitting neighbors. See NSRWM at C.34–35. 13 Thus, it is clear to this Court that
consumption of the PSD increment is a concrete and particularized harm that qualifies
as an injury-in-fact for the purpose of Article III standing.
First of all, there can be little doubt that PSD-increment injury is a concrete
harm. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (“A ‘concrete’ injury
must be ‘de facto’; that is, it must actually exist.”). The Supreme Court has recognized
a variety of “concrete” injuries, ranging from the tangible, Vt. Agency of Natural Res. v.
United States ex rel. Stevens, 529 U.S. 765, 772 (2000) (loss of money); Lucas v. S.C.
Coastal Council, 505 U.S. 1003, 1012 & n.3 (1992) (loss of real property), to the
intangible, see Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 449 (1989)
(informational harm); Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (aesthetic
harm). Ultimately, the word “concrete” is “meant to convey the usual meaning of the
term—‘real,’ and not ‘abstract.’” Spokeo, Inc., 136 S. Ct. at 1548 (citations omitted).
A government action that restricts a plaintiff’s ability to emit pollution—and thus limits
its ability to operate a manufacturing facility as it chooses—doubtless inflicts a
concrete injury on that plaintiff. See UARG, 134 S. Ct. at 2445. Accordingly, when a
permit enables a polluter to consume all or part of the PSD increment such that a
13
The Environmental Appeals Board, an administrative tribunal within the EPA, has described the New
Source Review Workshop Manual as follows:
The New Source Review Workshop Manual is a draft document issued by EPA’s Air
Quality Management Division in October 1990. It was developed for use in conjunction
with new source review workshops and training, and to guide permitting officials.
Although it is not accorded the same weight as a binding Agency regulation, it has been
looked to by this Board as a statement of the Agency’s thinking on certain PSD issues.
In re: Commonwealth Chesapeake Corp., 6 E.A.D. 764, *3 n.6 (EAB 1997). The Supreme Court has
relied on the Manual for insight into how the EPA implements the PSD program. See Alaska Dep’t of
Envtl. Conservation, 540 U.S. at 476, 497; see also UARG, 134 S. Ct. at 2457 & n.1 (Alito, J.,
concurring in part and dissenting in part).
23
neighboring permit applicant must promise reduced emissions in order to comply with
the PSD program, the neighboring applicant suffers a concrete injury.
Second, Nucor’s alleged PSD-increment injury is sufficiently particularized.
The particularity requirement bars lawsuits that “rais[e] only a generally available
grievance[,]” because a plaintiff is “seeking relief that no more directly and tangibly
benefits him than it does the public at large[.]” Defs. of Wildlife, 504 U.S. at 573–74.
A lawsuit to redress PSD-increment injury does not raise a mere generalized grievance:
the PSD increment is a scarce resource within a confined geographical area, and its
scarcity constrains only prospective polluters within that region. See 42 U.S.C.
§ 7475(a)(3)(A) (providing that a PSD-permit applicant must demonstrate that its
emissions will not cause or contribute to an exceedance of the PSD increment “in any
area” governed by the PSD program). When one facility’s consumption of a PSD
increment subjects its neighbor’s imminent construction plans to more stringent
emissions limitations under the PSD program, the neighbor is “affect[ed] . . . in a
personal and individual way[,]” and its injury is therefore particularized. Defs. of
Wildlife, 504 U.S. at 560 n.1; cf. La. Energy & Power Auth. v. FERC, 141 F.3d 364, 367
(D.C. Cir. 1998) (explaining that when a government action benefitting one entity
increases competitive pressures on another entity within the same market, the second
entity can establish an injury-in-fact under a competitor-standing theory).
Moreover, as explained at the outset, the EPA ultimately does not dispute that a
PSD-increment injury—when plausibly alleged by a pollution emitter with genuinely
imminent construction plans that will be constrained by a neighbor’s emissions—
constitutes a concrete and particularized injury that is cognizable under Article III.
24
(See Mot. at 19 n.9 (describing allegations Nucor would need to make “[t]o show injury
based on an alleged overconsumption of the increment”).) Instead, the EPA argues that,
given the circumstances presented in Nucor’s complaint, Nucor has not adequately
alleged that such an injury is imminent. (See Mot. at 18–23.) This Court disagrees, for
the reasons explained below.
Nucor Has Adequately Alleged That The Asserted PSD-Increment
Injury Is Imminent
In its complaint, Nucor specifically alleges that, due to ADEQ’s decision to grant
the Big River Steel permit, when Nucor undertakes to “evaluat[e] whether a future
modification” to one of its facilities “will contribute to an exceedance of the NAAQS or
an exceedance of the PSD increment,” Nucor “will have to take the additional BRS
emissions into account . . . , which will constrain [Nucor]’s ability to obtain permit
modifications without additional pollution controls or operating restrictions.” (Compl.
¶ 81.) The EPA’s primary response to Nucor’s PSD-increment theory of injury is that
Nucor has not plausibly alleged that it is in fact “planning modifications [to its mills]
that would require a PSD permit” (Mot. at 18), or that there is an “overlap between the
geographic areas affected by Nucor’s emissions and the emissions from the Big River
facility” such that Big River Steel’s emissions would “affect the amount of increment
available to Nucor” (id. at 20). According to the EPA, these two inadequacies render
the allegations in Nucor’s complaint “insufficient to establish that the permitting of
emissions from Big River causes an actual or imminent injury to Nucor.” (Id. at 18.)
But the EPA’s contention disregards the pleading standards applicable at this early
stage of the litigation, which require only that Nucor plausibly allege that the asserted
PSD-increment injury is imminent.
25
Specifically, where, as here, a plaintiff’s assertion of injury depends on the
plaintiff’s own future plans, courts examine whether the injury is imminent from two
angles: the firmness of the plaintiff’s future plans, and the likelihood that the
challenged government action will implicate those plans. See, e.g., In re Navy
Chaplaincy, 697 F.3d 1171, 1176 (D.C. Cir. 2012); NB ex rel. Peacock v. District of
Columbia, 682 F.3d 77, 83 (D.C. Cir. 2012). For example, in In re Navy Chaplaincy, a
group of military chaplains alleged future injury in the form of religious discrimination
by selection boards that would consider their future candidacies for promotion. 697
F.3d at 1175–76. The D.C. Circuit assessed that “assertion of future injury” by dividing
the contention into “two subsidiary premises: that plaintiffs will be considered for
promotion by future selection boards and that selection boards will discriminate against
them.” Id. at 1176. The court proceeded similarly in NB ex rel. Peacock. See 682 F.3d
at 83. That is, in order to evaluate whether the plaintiff had adequately alleged future
denial of Medicaid prescription coverage without the requisite notice, the court
subdivided its analysis into the “contingencies” of (1) “whether [the plaintiff] ha[d]
alleged an ongoing need for prescription coverage[,]” and (2) whether the defendant
agency was “likely to . . . den[y] coverage . . . [and] fail to provide the required notice
upon denial.” Id. And these twin inquiries regarding (1) the plaintiff’s future plans,
and (2) the likelihood that the challenged government action will implicate those plans,
are parallel perspectives from which to examine the ultimate issue: whether, in light of
the plaintiff’s allegations, it is plausible that the alleged injury is imminent. See id. at
85–86.
26
With respect to Nucor’s future plans, this court finds that Nucor has adequately
alleged that its future construction projects will require a PSD permit. Nucor asserts
that it is “nearly certain” that its two mills in Arkansas will undergo PSD review in
connection with future modification projects. (Compl. ¶ 78.) Furthermore, in support
of this prediction, Nucor alleges that both of its mills have previously been subject to
PSD review (Compl. ¶¶ 4–5); that one of its two mills “is currently pursuing permit
modifications that may require PSD review” (Compl. ¶ 78); and that over the past 25–
30 years, its two mills have averaged almost one ADEQ-air-permit modification per
year apiece, “[m]any” of which required PSD review (id.). At this early stage of the
litigation, these allegations suffice to support a plausible inference that Nucor will soon
embark on a construction project that requires a PSD permit. See, e.g., Peacock, 682
F.3d at 83 (concluding that a plaintiff who had alleged that he needs two inhalers per
month “is virtually certain” to engage in the conduct in the future that would subject
him to injury); Dearth v. Holder, 641 F.3d 499, 502–03 (D.C. Cir. 2011) (holding that
plaintiff’s “stated intent to return regularly to the United States” and purchase firearms
made the injury that he would suffer in those circumstances “sufficiently real and
immediate to support his standing” at the pleading stage); Emergency Coalition to
Defend Educational Travel v. U.S. Dep’t of Treasury, 545 F.3d 4, 10 (D.C. Cir. 2008)
(holding that the plaintiff had made adequate assertions regarding his future plans to
lead a study-abroad program, where he described “the consistent annual repetition of
the . . . program over several years” and his “concrete plans for the content and focus of
the [upcoming year’s] program”).
27
The EPA’s argument regarding Nucor’s future intentions fails to appreciate the
lower standard that is applicable at this phase of the litigation. (See Mot. at 18–19.)
Citing the Supreme Court’s admonition in Defenders of Wildlife that “‘some day’
intentions . . . do not support a finding of . . . ‘actual or imminent’ injury,” the EPA
contends that Nucor’s “allegations are too vague and speculative” to establish that it has
imminent construction plans that will require PSD review. (Mot. at 19 (quoting Defs. of
Wildlife, 504 U.S. at 564).) But Defenders of Wildlife was clear that its analysis was
contingent on the case having arisen at the summary judgment stage, 504 U.S. at 561,
and indeed the decision’s author clarified just weeks later that the standing challenge in
Defenders of Wildlife “would have been unsuccessful” had it “been made at the
pleading stage.” Lucas, 505 U.S. at 1012 n.3; see also Food & Water Watch, 808 F.3d
at 912–13.
The EPA’s arguments regarding Nucor’s future plans are similarly misplaced.
For example, the agency argues that Nucor’s allegation that it is “currently pursuing
permit modifications that may require PSD review” (see Compl. ¶ 78) does not pass
muster because many Title V permit modifications do not require PSD review. (See
Mot. at 18–19 & nn.8–9 (emphasizing that PSD review is not required for changes that
do not amount to “major modifications”)); see also 40 C.F.R. § 51.166(a)(7)(i),
(b)(2)(i); Envt’l Def. v. Duke Energy Corp., 549 U.S. 561, 568–69 (2007). Moreover,
the EPA continues, even those permit modifications that do require PSD review only
entail PSD-increment analysis if the modification increases emissions of a pollutant by
a “significant” amount. (Mot. at 18 n.8 (citing 40 C.F.R. § 51.166(b)(23), (m)(1)(i)).)
But these criticisms simply identify the sorts of “‘specific facts that are necessary to
28
support the [complaint’s] claim’” of injury, Osborn v. Visa Inc., 797 F.3d 1057, 1063–
64 (D.C. Cir. 2015) (emphasis added) (quoting Defs. of Wildlife, 504 U.S. at 561), and
at the motion-to-dismiss stage, the court must “‘presum[e] that [the plaintiff’s] general
allegations embrace’” such facts. Id. (citation omitted). Consequently, Nucor’s failure
to include in the complaint detailed allegations regarding the extent to which the
planned permit modifications will actually and ultimately require PSD review does not
undermine the plausibility of an inference that it has imminent construction plans that
will require such review.
As for the likelihood that Nucor’s future PSD permits will be subject to more
stringent limitations as a result of Big River Steel’s emissions, Nucor has again alleged
enough facts to move forward. In support of the complaint’s contention that Nucor’s
future PSD permit applications will be meaningfully constrained by Big River Steel’s
emissions (see Compl. ¶¶ 78, 80–81), the complaint alleges that Big River Steel’s new
facility is located just 20 miles upwind of Nucor’s mills (see id. ¶¶ 10–11), is in the
same air quality control region as Nucor’s mills (see id. ¶ 8), and will emit particulate
matter that “will reach the Nucor mills” (id. ¶ 27) and will “impact the overall air
quality in Mississippi County” (id. ¶ 28). Given these allegations (which the Court
must accept as true), it is certainly plausible that Nucor’s future PSD permit
applications will have to account for Big River Steel’s particulate matter emissions and
that, as a result, Nucor will have to promise correspondingly lower new emissions in its
future PSD permit applications.
The EPA challenges Nucor’s allegations by pointing out that the operation of
PSD-increment analysis described above means that “[t]here can be no injury to
29
Nucor’s ability to obtain permits without an actual overlap between the geographic
areas affected by Nucor’s emissions and the emissions from the Big River facility—and
Nucor has made no allegations regarding such an overlap.” (Mot. at 20 (emphasis
added).) The agency adds that Nucor’s contentions about the geographical proximity
between the facilities do not suffice to demonstrate actual overlap, because the
“significant impact area” that would be used to determine restrictions on any future
Nucor PSD permit is identified using complex air modeling that Nucor has not yet
performed. (Id. at 21–22.)
These arguments both overcomplicate the mechanics of the PSD-increment
analysis and underestimate the importance of the litigation stage to a proper evaluation
of a plaintiff’s injury assertions. As explained above, the “significant impact area” that
Nucor will need to analyze in the context of any future PSD-permit application is a
circular area that is centered on the relevant Nucor mill, see NSRWM at C.26, and
Nucor’s analysis will need to account for “all increment-affecting sources located
within 50 kilometers of the impact area[,]” id. at C.35. Nucor’s allegations support
inferences both that the distance between its mills and Big River Steel’s mill is less
than 50 kilometers (see Compl. ¶ 10), and that Big River Steel’s mill is “increment-
affecting” (see Compl. ¶ 79). What is more, Nucor also specifically alleges that Big
River Steel’s emissions “will reach the Nucor mills[.]” (Compl. ¶ 27.); see also
Catawba Cty., 571 F.3d at 26 (“PM 2.5 can travel hundreds or thousands of miles.”) 14
14
In this regard, the EPA points out that Nucor’s mills are not accessible to the public, which, says the
agency, means that Nucor’s mills are not considered part of the “significant impact area” in any PSD
increment analysis per the applicable regulations. (Mot. at 22 (citing 40 C.F.R. § 50.1(e) (defining
“ambient air” for the purpose of the PSD program as “that portion of the atmosphere, external to
buildings, to which the general public has access”)).) This argument is too clever by half, because it
ignores the fact that the complaint’s allegation that Big River Steel’s emissions “will reach the Nucor
30
Thus, it is entirely plausible that Big River Steel’s emissions will reach the “significant
impact area” that Nucor will need to analyze for one of its future construction projects,
such that Nucor’s future PSD permits will be made more restrictive in light of Big
River Steel’s emissions. As a result, this Court concludes that Nucor has adequately
alleged for the purpose of the motion-to-dismiss stage that it faces imminent PSD-
increment injury. See Peacock, 682 F.3d at 83–84; see also Food & Water Watch, 808
F.3d at 912–13 (explaining the lower bar for demonstrating standing that is applicable
at the pleading stage). 15
B. Nucor Has Adequately Alleged That Its Injury Is Fairly Traceable To
The EPA’s Conduct And Would Likely Be Redressed By A Favorable
Outcome In This Lawsuit
Finally, although the EPA does not dispute the causation and redressability
aspects of Nucor’s purported standing, this Court will evaluate those standing elements,
because the Court has “an independent obligation to assure [itself] that jurisdiction is
proper.” Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 324
(2008).
mills” (Compl. ¶ 27) gives rise to the logical inference that Big River Steel’s emissions will also reach
the publicly accessible land adjacent to those mills that is within the “significant impact area.”
15
Because this Court concludes that Nucor has adequately alleged an imminent PSD-increment injury,
it need not (and will not) address Nucor’s alternative argument that it is already suffering a PSD-
increment injury by virtue of the changes to its construction plans that it must make now in anticipation
of future PSD-permit applications. (See Opp’n at 36–37.) It is doubtful that an anticipatory, self-
inflicted injury confers standing unless the plaintiff undertakes the injurious act in anticipation of a
certainly impending, externally-inflicted injury that would confer standing in its own right. See
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1151 (2013) (“[R]espondents cannot manufacture
standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that
is not certainly impending.”). This Court has already opined about the heart of the instant impending-
injury matter by concluding that Nucor’s alleged future PSD-increment injury is imminent. Thus, this
Court sees no need to evaluate whether the plan change that Nucor is allegedly making at present in
anticipation of the imminent PSD-increment injury confers standing in-and-of-itself.
31
With respect to causation, there can be little doubt that Nucor’s PSD-increment
injury is fairly traceable to the EPA’s failure to object to Big River Steel’s permit. That
is, if the EPA had objected, ADEQ would have been forbidden from issuing a Title V
permit to Big River Steel, and Big River Steel could not construct or operate its mill.
See 42 U.S.C. § 7661d(b)(3). It is likewise clear that the EPA’s failure to object is
connected to the alleged procedural failing that Nucor challenges in this lawsuit, which
is the agency’s failure to respond to Nucor’s petition for an objection. See WildEarth
Guardians, 738 F.3d at 306 (explaining that, to demonstrate causation in the
procedural-injury context, “[a]ll that is necessary is to show that the procedural step
was connected to the substantive result” (quoting Massachusetts, 549 U.S. at 518)). In
other words, if the EPA had reviewed and responded to Nucor’s petition in a timely
fashion, it would also have had to object to Big River Steel’s permit in the event that it
determined that Nucor “demonstrate[d] . . . that the permit is not in compliance with the
[CAA.]” 42 U.S.C. § 7661d(b)(2). Therefore, it is undoubtedly the case that the
procedural omission is “connected to” the substantive government action that directly
causes Nucor’s alleged injury. See WildEarth Guardians, 738 F.3d at 306.
Nucor has likewise satisfied the relaxed standard for redressability that applies in
cases raising procedural violations. Just as the landowner adjacent to a proposed dam
does not need to demonstrate that requiring an agency to issue a statutorily required
environmental impact statement will necessarily alter the substantive decision to build
the dam, see Defs. of Wildlife, 504 U.S. at 572 n.7, Nucor need not demonstrate that
requiring the EPA to respond to its petition will necessarily result in the EPA issuing an
objection and blocking Big River Steel’s permit. In the procedural-injury context, it
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suffices that the agency “might” do so, Lemon v. Green, 514 F.3d 1312, 1315 (D.C. Cir.
2008), and as just mentioned, that possibility exists here.
Accordingly, in light of the legal standards that apply to the standing
determination when a plaintiff challenges an agency’s alleged procedural violation,
Nucor’s PSD-increment injury is fairly traceable to the challenged conduct by the EPA
and would likely be redressed by the relief that Nucor seeks.
IV. CONCLUSION
Nucor has employed the CAA’s procedure for petitioning the EPA to object to a
state-issued Title V permit, and has now filed a complaint in this Court that maintains
that the agency has failed to grant or deny its petition within the required timeframe.
Thus, the immediate subject of Nucor’s lawsuit is a mere procedural violation, but
Nucor’s stake in the substantive outcome of this litigation is allegedly very real,
because the Title V permit that is the subject of Nucor’s petition enables Big River
Steel to operate a new steel mill just twenty miles away from Nucor’s two steel-
manufacturing facilities. There is no dispute that all three plants are in the same county
and in the same air quality control region, and Nucor alleges that it has pending
construction plans at one of its preexisting mills that will require PSD review, and
therefore will be meaningfully constrained by Big River Steel’s consumption of the
applicable PSD increment for the region. For the reasons explained above, this Court
concludes that, at this early stage of the litigation, Nucor has said enough to allege a
concrete and particularized injury that is fairly traceable to the EPA’s failure to timely
respond to Nucor’s petition, and that Nucor’s complaint contains sufficient facts to
support a plausible claim that the injury Nucor faces (in the form of Big River Steel’s
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consumption of the PSD-increment) is imminent and would likely be redressed by a
favorable outcome.
Accordingly, the allegations of Nucor’s complaint sufficiently support Nucor’s
contention that it has standing to pursue the relief that it seeks in this lawsuit, which
means that, as set forth in the accompanying order, the EPA’s motion to dismiss for
lack of standing must be DENIED.
DATE: March 31, 2017 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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