DocketNumber: Case No. 17–cv–06900–HSG
Citation Numbers: 286 F. Supp. 3d 1082
Judges: Gilliam
Filed Date: 3/12/2018
Status: Precedential
Modified Date: 7/25/2022
On December 4, 2017, a coalition of environmental and health organizations ("NGO Plaintiffs") filed suit against Scott Pruitt in his official capacity as the Administrator of the United States Environmental Protection Agency ("EPA"). See Dkt. No. 1 ("NGO Compl."). That same day, NGO Plaintiffs filed a motion for summary judgment. See Dkt. No. 11 ("NGO Mot."). On December 15, 2017, the Court related that action to California v. Pruitt , Case No. 4:17-cv-06936-HSG. In California v. Pruitt , fifteen states ("State Plaintiffs") asserted virtually identical claims against the Administrator and EPA (collectively, "Defendants"). See Dkt. No. 1 ("State Compl."), Case No. 4:17-cv-06936-HSG.
On December 29, 2017, State Plaintiffs filed a motion for summary judgment. Dkt. No. 43 ("State Mot."), Case No. 4:17-cv-06936-HSG. On January 19, 2018, Defendants opposed the motions submitted by NGO and State Plaintiffs (collectively, "Plaintiffs"). Dkt. No. 40 ("Opp."). On January 23, 2018, the Court granted State Plaintiffs' request to consolidate the actions.
*1084See Dkt. No. 41. NGO Plaintiffs replied to Defendants' opposition on January 26, 2018. Dkt. No. 42 ("NGO Reply"). State Plaintiffs replied on January 31, 2018. Dkt. No. 43 ("State Reply"). On February 22, 2018, the Court heard argument on the motions. See Dkt. No. 63.
After carefully considering the parties' arguments, the Court GRANTS Plaintiffs' motions for summary judgment. There is no dispute as to liability: Defendants admit that the Administrator violated his nondiscretionary duty under the Clean Air Act ("CAA") to promulgate by October 1, 2017 initial area air quality designations under the 2015 national ambient air quality standards ("standards" or "NAAQS") for ozone. See NGO Mot. at 13; Opp. at 2. The remaining inquiry pertains to the appropriate equitable remedy, which the Court crafts in its discretion.
I. SUMMARY JUDGMENT
A. LEGAL STANDARD
Summary judgment is proper when a "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. ,
The moving party bears both the ultimate burden of persuasion and the initial burden of producing those portions of the pleadings, discovery, and affidavits that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett ,
"If, however, a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense."
*1085Matsushita Elec. Indus. Co. ,
B. DISCUSSION
For purposes of liability, the CAA's operative provision states:
Upon promulgation or revision of a national ambient air quality standard, the Administrator shall promulgate the designations of all areas (or portions thereof) submitted under subparagraph (A) as expeditiously as practicable, but in no case later than 2 years from the date of promulgation or the new or revised national ambient air quality standard. Such period may be extended for up to one year in the event the Administrator has insufficient information to promulgate the designations.
[T]he Administrator may at any time notify the Governor of any State that available information indicates that the designation of any area or portion of an area within the State or interstate area should be revised. In issuing such notification, which shall be public, to the Governor, the Administrator shall provide such information as the Administrator may have available explaining the basis for the notice.
In addition, a state can independently commence the redesignation process. See
Defendants do not dispute that the Administrator violated section 7407(d)(1)(B)(i) by failing to promulgate by October 1, 2017 initial area air quality designations under the 2015 ozone NAAQS for all areas of the country. See Opp. at 2. Thus, summary judgment in favor of Plaintiffs is appropriate. See Sierra Club v. Johnson ,
*1086Am. Lung Ass'n v. Browner ,
II. REMEDY
A. LEGAL STANDARD
The Court has "broad latitude" to fashion an equitable remedy other than injunctive relief. Alaska Ctr. for Env't v. Browner ,
In Train , the D.C. Circuit identified two categories of constraints that can excuse untimely agency action.
B. DISCUSSION
Defendants contend that they are acting expeditiously to implement the 2015 ozone NAAQS. Opp. at 2. Defendants request that the Court order "EPA to promulgate all of the remaining area designations by April 30, 2018, except for the eight counties that comprise the San Antonio, Texas area." Opp. at 3, see
NGO Plaintiffs agree with Defendants that EPA must implement by April 30, 2018 all remaining area designations, except those governing the San Antonio area. See Dkt. No. 37 ("NGO Admin. Mot.") at 2; NGO Reply at 2. For San Antonio, NGO Plaintiffs request that the Court direct Defendants, within seven days of the *1087Court's equitable order, to send Texas "a 120-day notice detailing the designations EPA intends to make for the San Antonio area, and promulgate designations by 120 days later." NGO Reply at 8. NGO Plaintiffs "further request" that the Court specify that EPA make the designations "effectively immediately upon promulgation." See id. at 9-11.
State Plaintiffs' request differs slightly from that of NGO Plaintiffs. See State Reply at 1-2, Dkt. No. 43-1. State Plaintiffs seek an order directing Defendants to (1) complete designations by April 30, 2018 for areas where EPA has proposed modifying a state or tribe's recommended designation; (2) immediately promulgate designations for those areas where states and EPA agree-i.e. where no change to a designation is anticipated or forthcoming; (3) take action with respect to the San Antonio area within seven days of the Court's order, either by promulgating designations directly or by issuing a letter of EPA's intent to modify the state's designation; and (4) make designations effective immediately for all areas. See id.
In view of the parties' requests, there are three remedy-based issues to address. Those issues respectively pertain to the date by which Defendants must (1) promulgate designations for all areas, excluding the San Antonio area; (2) promulgate a designation for the San Antonio area; and (3) make all designations effective.
i. Defendants must promulgate by April 30, 2018 designations for all areas, excluding the San Antonio area
As discussed, Defendants and NGO Plaintiffs agree that an April 30, 2018 promulgation deadline is appropriate for all areas excluding the San Antonio area. See NGO Reply at 2. State Plaintiffs disagree, and argue that Defendants cannot justify further delaying designating areas where EPA does not intend to modify a state-recommended designation. State Reply at 2. Defendants argue that EPA cannot promulgate these designations any faster, in part because the agency has already solicited public comments on the recommended designations. Opp. at 8. According to Defendants, April 30, 2018 is the earliest date by which EPA can "diligently respond to comments and issue final designations." Id. at 9, 11; Wehrum Decl. ¶¶ 26-29 (outlining the steps EPA will take after it receives comments, including consolidating comments, drafting a response, and preparing a final Federal Register notice).
Under the circumstances, Defendants are acting expeditiously to promulgate the remaining non-San Antonio area designations. Defendants' April 30 deadline requires the Administrator to fulfill his duty less than two months from the date of this order. State Plaintiffs are correct that substantive adequacy typically must cede to expediency when the Administrator has violated a non-discretionary duty. See, e.g. , Sierra Club v. Gorsuch ,
Similarly, State Plaintiffs' authorities can be distinguished based on EPA's self-imposed April 30 compliance timeline. See State Reply at 2-3. For instance, in Communities for a BetterEnv't v. U.S. E.P.A. , EPA sought "a period of five years and one month from the initial call for information to complete the review process" for carbon monoxide ("CO") NAAQS. No. C 07-03678 JSW,
Not so here. The statutory clock began ticking on October 1, 2015, when EPA last revised the ozone NAAQS. See NGO Mot. at 5, 7;
In addition, Defendants have shown that it would be impracticable to implement State Plaintiffs' proposal for immediately issuing the remaining designations. See Train ,
ii. Defendants must promulgate final designations for the San Antonio area no later than 127 days from the date of this order
Defendants claim that EPA needs until August 10, 2018 to promulgate a designation for the San Antonio area. See Opp. at 12-13. Defendants initially attributed this delay to Texas's September 27, 2017 letter to EPA requesting additional time for the state to provide "information supporting a designation of attainment or *1089unclassifiable for the state." Opp. at 12; see Wehrum Decl. ¶ 37. EPA allowed Texas to submit by February 28, 2018 any such additional information, including a revised designation recommendation. See
Both NGO and State Plaintiffs dispute EPA's August 10, 2018 deadline. NGO Plaintiffs request that the Court direct Defendants, within seven days of this order, to send Texas "a 120-day notice detailing the designations EPA intends to make for the San Antonio area, and promulgate designations by 120 days later." NGO Reply at 8. So doing would provide Defendants with a 127-day timeline for compliance. NGO Plaintiffs contend that this timeframe is consistent with the CAA's dual mandates of requiring expeditious agency action and providing 120-day notice to states. See
State Plaintiffs' requested relief differs slightly. State Plaintiffs argue that the Court should require EPA, within seven days of this order, to take one of two actions: "(1) finalize [Texas's] designation or (2) propose a modification to Texas's recommended designation." State Reply at 5. If EPA proposes a modification, State Plaintiffs ask that the Court require the agency to finalize the designation within 120 days of that proposal.
Though Plaintiffs differ over the exact form of the Court's order, Plaintiffs agree that EPA's reasons for delay are unwarranted. In addition to EPA's failure to show impracticability, Plaintiffs argue that the basis for Texas's request-to submit information regarding international transport-is not relevant to the designation process, and governed by a discrete section of the CAA. See State Reply at 7;
The Court agrees with Plaintiffs. Defendants fail to set forth budgetary, manpower, or technical constraints that would make it impracticable for the agency to promulgate a San Antonio area designation prior to August 10, 2018. See Train ,
Furthermore, EPA's reasoning effectively allows states to drive the agency's timeline for statutory compliance. See NGO Reply at 7. The circumstances here are particularly notable: Texas waited until just four days before EPA's deadline to ask the agency for additional time. Though EPA could have declined Texas's request, EPA gave Texas nearly six additional *1090months to provide the agency with more information. Any consequent agency delay is unreasonable. See Catawba Cty., N.C. v. E.P.A. ,
Defendants, moreover, fail to address why Texas's "international transport" rationale is entitled to EPA's deference. When asked at oral argument, Defendants explained, for the first time, that the agency's tardiness is partly due to processing timely submitted information pertaining to the San Antonio area. If that is the case, then Defendants are even harder pressed to explain how EPA acted in the first instance with the "utmost diligence" to meet the CAA's deadline. See Train ,
Based on Defendants' showing, the Administrator cannot wait until August 10, 2018 to promulgate an area designation for San Antonio. As to the specific form of equitable relief, the Court adopts NGO Plaintiffs' 127-day compliance deadline for the San Antonio area. NGO Plaintiffs' request is more concrete at this stage as compared to State Plaintiffs' dual-pronged demand, and is therefore more likely to result in expeditious action by the agency.
iii. No clear statutory command authorizes the Court to require Defendants to make the designations effective immediately upon promulgation, and Defendants' commitment to make the designations effective within 30 to 60 days of promulgation is reasonable
Both NGO and State Plaintiffs argue that Defendants need to make all designations effective immediately upon promulgation. See NGO Reply at 9-11; State Reply at 7-9. According to Plaintiffs, the CAA's statutory timeline for compliance imposes a duty on Defendants to immediately publish designations in the Federal Register. See State Reply at 8 & n.8; NGO Reply at 10;
In response, Defendants argue that EPA's duty to promulgate designations within two years does not include a duty to make those designations effective. See Opp. at 13. Defendants contrast the statute's lack of a specific effective date with other CAA provisions that contain such dates.
Here, the Court agrees with Defendants. The CAA does not set forth a specific date by which the agency must make designations effective. The statute does not expressly equate the Administrator's duty to promulgate with a duty to make designations effective. Plaintiffs fail to present any relevant case law that supports their statutory *1091construction. See NGO Reply at 9-11. Instead, binding case law favors the opposite finding. In WildEarth Guardians v. McCarthy , the Ninth Circuit recognized from its earlier cases a "clear statement rule in this context":
When a plaintiff sues the EPA Administrator for failure to perform any act or duty under this chapter which is not discretionary with the Administrator,42 U.S.C. § 7604 (a)(2), we have held that the nondiscretionary nature of the duty must be clear-cut-that is, readily ascertainable from the statute allegedly giving rise to the duty. We must be able to identify a specific, unequivocal command from the text of the statute at issue using traditional tools of statutory interpretation; it's not enough that such a command could be teased out from an amalgamation of disputed statutory provisions and legislative history coupled with the EPA's own earlier interpretation.
III. CONCLUSION
For the foregoing reasons, the Court hereby GRANTS NGO Plaintiffs' motion for summary judgment, Dkt. No. 11, State Plaintiffs' motion for summary judgment, Dkt. No. 43, Case No. 4:17-cv-06936-HSG, and enters judgment in favor of Plaintiffs and against Defendants. The terms of the judgment are as follows:
(1) The Court DECLARES that Defendant Pruitt, in his official capacity as Administrator of the EPA, has failed to perform a non-discretionary duty imposed by42 U.S.C. § 7407 (d)(1)(B)(i) to promulgate by October 1, 2017 area designations for all areas of the country under the 2015 NAAQS for ozone;
(2) The Court ORDERS Defendants to promulgate final designations for all areas of the country except for the eight undesignated counties composing the San Antonio area no later than April 30, 2018; and
(3) The Court ORDERS Defendants to promulgate final designations for the San Antonio area no later than 127 days from the date of this order.
The clerk is directed to enter judgment in the lead case only and close that case file. The Court retains jurisdiction to make such orders as may be necessary or appropriate.
IT IS SO ORDERED.
Parts I and II of this order set forth the relevant statutory and factual background.
EPA's voluntary notice-and-comment period closed before oral argument, but after the parties completed briefing on the motions. See State Reply at 2.
At oral argument, Defendants suggested that EPA could delay promulgating designations past the April 30 deadline depending on the comments received. The Court finds that any such further delay is unacceptable at this stage, and EPA will be held to its promised April 30 deadline.