Sierra Club v. United States Environmental Protection Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SIERRA CLUB,
Plaintiff,
v.
UNITED STATES ENVIRONMENTAL Civil Action No. 10-cv-01541 (CKK)
PROTECTION AGENCY and GINA
McCARTHY, Administrator, United States
Environmental Protection Agency,
Defendants.
MEMORANDUM OPINION
(June 14, 2016)
Plaintiff Sierra Club filed suit against Defendants, the United States Environmental
Protection Agency and Gina McCarthy, Administrator (collectively, the “EPA”), seeking
injunctive relief to compel the EPA to perform certain nondiscretionary duties mandated by the
Clean Air Act (“the Act”). Presently before the Court are Defendants’ [54] Motion to Dismiss
for Lack of Jurisdiction, Plaintiff’s [55] Cross Motion to Hold in Abeyance, and Plaintiff’s [67]
Motion for Procedural Order. Upon consideration of the pleadings,1 the relevant legal
authorities, and the record as a whole, the Court DENIES Defendants’ [54] Motion to Dismiss
for Lack of Jurisdiction, GRANTS Plaintiff’s [55] Cross Motion to Hold in Abeyance, and
GRANTS the relief requested by Plaintiff in its [67] Motion for Procedural Order. Specifically,
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The Court’s consideration has focused on the following documents: Pl.’s Complaint, ECF No.
[1]; Defs.’ Motion to Dismiss for Lack of Jurisdiction, ECF No. [54]; Pl.’s Cross Motion to Hold
in Abeyance / Response to Defs.’ Motion to Dismiss for Lack of Jurisdiction, ECF Nos. [55] /
[56]; Defs.’ Reply in Support of Defs.’ Motion to Dismiss for Lack of Jurisdiction / Opp’n to
Pl.’s Cross Motion to Hold in Abeyance, ECF Nos. [57] / [58]; Pl.’s Reply in Support of Pl.’s
Cross Motion to Hold in Abeyance, ECF No. [60]; Defs.’ Notice of Supplemental Authority,
ECF No. [65]; Pl.’s Motion for Order / Response to Defs.’ Notice of Supplemental Authority,
ECF Nos. [66] / [67]; Defs.’ Opp’n to Pl.’s Motion for Order, ECF No. [68]; Pl.’s Reply in
Support of Pl.’s Motion for Order, ECF No. [69].
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the Court shall issue an Order (1) directing the EPA to file, within 45 days of this Memorandum
Opinion, by no later than July 29, 2016, a Notice describing the agency’s schedule for proposing
and completing action to adopt a valid Clean Air Act “good neighbor” federal implementation
plan for Texas with respect to the 1997 particulate matter (“PM2.5”) national ambient air quality
standards, and to provide status reports to the Court every 90 days thereafter; and (2) holding
Plaintiff’s PM2.5 interstate transport claim in abeyance until completion of an EPA action
adopting a valid 1997 PM2.5 good neighbor FIP for Texas, without prejudice to Sierra Club’s
right to move for additional relief should the EPA fail to adopt or implement an expeditious
schedule on remand.
I. BACKGROUND
The Clean Air Act states that the EPA must set national ambient air quality standards
(“NAAQS”) for certain air pollutants, namely particulate matter with a diameter of less than 2.5
microns—or PM2.5. See 42 U.S.C. § 7409(a). If a state fails to adopt an adequate state
implementation plan (“SIP”) to comply with the NAAQS within three years of the promulgation
of the NAAQS in question, 42 U.S.C. § 7410(a)(1), then the Administrator must promulgate its
own federal implementation plan (“FIP”) within two years of finding that SIP absent or
inadequate, 42 U.S.C. § 7410(c)(1).
On September 14, 2010, Plaintiff Sierra Club filed a complaint against the EPA, alleging
three claims under the Clean Air Act: (1) that the EPA failed to promulgate an interstate
transport FIP for the State of Texas with respect to the 1997 ozone and PM2.5 NAAQS; (2) that
the EPA failed to promulgate an FIP for the State of Texas with respect to the 1997 ozone
NAAQS; and (3) that the EPA failed to take final approval or disapproval action on Texas’s SIP
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with respect to the 1997 PM2.5 NAAQS. See Complaint for Declaratory and Injunctive Relief,
ECF No. [1], ¶¶ 32-40.
Soon after the filing of the Complaint, the parties reached a Partial Consent Decree,
which the Court approved in 2011, resolving claims (2) and (3). See Order granting Partial
Consent Decree, ECF No. [23]. Claim (1)—Plaintiff’s interstate transport claim—is now the
sole claim remaining in this case. The first half of Plaintiff’s interstate transport claim—that the
EPA has failed to promulgate an interstate transport FIP for the State of Texas with respect to the
1997 ozone NAAQS (Plaintiff’s “ozone interstate transport claim”)—is being held in abeyance,
at the request of the parties, until August 31, 2016, to allow the EPA to finalize an update to the
Cross-State Air Pollution Rule for the 2008 ozone NAAQS. See Minute Order (Feb. 19, 2016);
see also Joint Status Report (Feb. 18, 2016), ECF No. [74]. The second half of Plaintiff’s first
claim—that the EPA has failed to promulgate an interstate transport FIP for the State of Texas
with respect to the 1997 PM2.5 NAAQS (Plaintiff’s “PM2.5 interstate transport claim”)—is the
subject of the pending motions.
As relevant to Plaintiff’s PM2.5 interstate transport claim—the EPA, on August 8, 2011,
promulgated the Cross-State Air Pollution Rule (“CSAPR” or the “Rule”), which included a FIP
addressing interstate transport of pollutants from Texas. See 76 Fed. Reg. 48,208 (Aug. 8, 2011); see
also Complaint ¶¶ 33-34. Initially, the Rule was stayed pending review by the United States Court
of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) and the United States
Supreme Court. See EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir.), Per Curiam
Order (Dec. 30, 2011), Document No. 1350421. On October 23, 2014, the D.C. Circuit, on remand
from the Supreme Court, lifted the stay, and the Rule went into effect in January 2015. See id., Per
Curiam Order (Oct. 23, 2014), Document No. 1518738.
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On July 28, 2015, the D.C. Circuit held invalid the part of the CSAPR that is relevant to
Plaintiff’s PM2.5 interstate transport claim. See EME Homer City Generation, L.P. v. E.P.A., 795
F.3d 118, 128-29 (D.C. Cir. 2015). In particular, the D.C. Circuit held that the sulfur dioxide
(“SO2”) emissions budgets that the EPA had established for Texas were unlawful because they
required Texas “to reduce emissions by more than the amount necessary to achieve attainment in
every downwind State to which it is linked.” Id. at 124 (quoting EME Homer City v. EPA, 134
S. Ct. 1584, 1608 (2014)) (emphasis in original). The D.C. Circuit remanded the Rule to the
EPA, without vacatur, leaving the Rule in effect while the EPA remedied the issues identified by
the D.C. Circuit. See id. at 132.
Defendants request that this Court dismiss Plaintiff’s PM2.5 interstate transport claim as
moot, arguing that the EPA has fulfilled its duty to promulgate a FIP addressing interstate
transport of pollutants from Texas. See Defs.’ Notice of Supp. Authority, ECF No. [65], at 2-3;
Defs.’ Opp’n to Pl.’s Mot. for Procedural Order, ECF No. [68], at 3-7; see also Defs.’ Mem. in
Support of Defs.’ Mot. to Dismiss, ECF No. [54-1], at 5-9. Defendants, relying on the fact that
the rule promulgated by the EPA remains in effect on remand, contend that there is no longer a
statutory duty left to satisfy under the Clean Air Act with respect to Plaintiff’s PM2.5 interstate
transport claim. See Defs.’ Opp’n to Pl.’s Mot. for Procedural Order, ECF No. [68], at 4.2
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Initially, Defendants argued in their Motion to Dismiss that the CSAPR promulgated by the
EPA in August 2011 “fully addressed its duty to promulgate a FIP for Texas with respect to the
1997 PM2.5 NAAQS,” and that the fact that CSAPR was “subject to remaining challenges in the D.C.
Circuit on remand from the Supreme Court does not change that conclusion.” Defs.’ Mem. in
Support of Defs.’ Mot. to Dismiss, ECF No. [54-1], at 7. Several months after Defendants filed
that Motion to Dismiss, the D.C. Circuit held as invalid the part of the CSAPR relevant to
Plaintiff’s PM2.5 interstate transport claim. Since the D.C. Circuit’s decision, the parties have
revised their arguments regarding Defendant’s Motion to Dismiss through supplemental briefing.
See Defs.’ Notice of Supporting Authority, ECF No. [65], Pl.’s Motion for Order / Response to
Defs.’ Notice of Supplemental Authority, ECF Nos. [66] / [67]; Defs.’ Opp’n to Pl.’s Motion for
Order, ECF No. [68]; Pl.’s Reply in Support of Pl.’s Motion for Order, ECF No. [69].
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Plaintiff, in response, argues that the D.C. Circuit’s decision in Homer City “invalidated
the exact action EPA relies on here to resolve Sierra Club’s claim concerning the agency’s
outstanding nondiscretionary duty to promulgate a good neighbor FIP for Texas.” Pl.’s
Response to EPA’s Notice of Supp. Authority, and Mot. for Procedural Order, ECF Nos. [66] /
[67], at 2. Plaintiff contends that its PM2.5 interstate transport claim is “live and unresolved, and
will not become moot until EPA acts on remand to correct the specific flaws identified in Homer
City.” Id. at 1. Citing these arguments, Plaintiff moves this Court to enter an Order: (a)
directing the EPA to notify the Court within 45 days of the agency’s schedule for proposing and
completing action to adopt a valid Clean Air Act “good neighbor” FIP for Texas with respect to
the PM2.5 NAAQS and to provide status reports to the Court every 90 days thereafter; and (b)
holding this case in abeyance until completion of an EPA action adopting a valid 1997 PM2.5
good neighbor FIP for Texas, without prejudice to Sierra Club’s right to move for additional
relief at any time should EPA fail to adopt or implement an expeditious schedule on remand. Id.
at 1-2.3
II. LEGAL STANDARD
Article III of the Constitution limits federal courts’ judicial power to only live “cases” or
“controversies.” This requirement persists throughout the entirety of any judicial proceedings.
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Plaintiff initially requested that the Court hold Plaintiff’s PM2.5 interstate transport claim in
abeyance by way of its [55] Cross-Motion to Hold in Abeyance, filed in response to Defendant’s
[54] Motion to Dismiss for Lack of Jurisdiction. As noted previously by the Court, these two
motions, and the parties’ briefing of said motions, occurred prior to the D.C. Circuit’s decision in
Homer City, holding as invalid the part of the CSAPR relevant to Plaintiff’s PM2.5 interstate
transport claim. See note 2, supra. Since the D.C. Circuit’s decision, the parties have revised
their arguments through supplemental briefing. See Defs.’ Notice of Supporting Authority, ECF
No. [65], Pl.’s Motion for Order / Response to Defs.’ Notice of Supplemental Authority, ECF
Nos. [66] / [67]; Defs.’ Opp’n to Pl.’s Motion for Order, ECF No. [68]; Pl.’s Reply in Support of
Pl.’s Motion for Order, ECF No. [69].
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See Lewis v. Cont’l Bank Corp, 494 U.S. 472, 477 (1990). Accordingly, the doctrine of
mootness precludes the Court from adjudicating claims to which it cannot provide any specific
relief. See United States v. Mich. Nat’l Corp., 419 U.S. 1, 4 (1974).
A case becomes moot “when the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome,” Cty. of Los Angeles v. Davis, 440 U.S. 625, 631
(1979) (citation omitted), or when “intervening events make it impossible to grant the prevailing
party effective relief,” Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008) (citation omitted).
The party claiming an issue is moot bears a “heavy” and “formidable” burden. Friends of the
Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 176, 189, 190 (2000); see also Honeywell
Int’l, Inc. v. Nuclear Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010) (The “heavy
burden of establishing mootness lies with the party asserting a case is moot.”) (citation and
internal quotation marks omitted).
A defendant’s voluntary cessation of unlawful conduct does not suffice to moot an issue.
See United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968) (quoting
United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). Voluntary cessation of unlawful
conduct can only moot a case if (1) there is no reasonable expectation that the alleged unlawful
conduct will recur and (2) interim events or relief have destroyed the effects of the alleged
violation. See Los Angeles County v. Davis, 440 U.S. 625, 631 (1979).
III. DISCUSSION
Defendants contend that this Court should dismiss Plaintiff’s PM2.5 interstate transport
claim as moot, arguing that the EPA has fulfilled its duty to promulgate a FIP addressing
interstate transport of pollutants from Texas. See Defs.’ Notice of Supp. Authority, ECF No. [65],
at 2-3; Defs.’ Opp’n to Pl.’s Mot. for Procedural Order, ECF No. [68], at 3-7; Defs.’ Notice of
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Supp. Authority, ECF No. [65], at 2-3; see also Defs.’ Mem. in Support of Defs.’ Mot. to
Dismiss, ECF No. [54-1], at 5-9. Defendants contend that the “only duty at issue is EPA’s duty
to promulgate an interstate transport FIP for Texas for the 1997 PM2.5 NAAQS,” and that the
EPA has already performed that duty by promulgating the CSAPR. Defs.’ Opp’n to Pl.’s Mot.
for Procedural Order, ECF No. [68], at 4. According to Defendants, “Plaintiff has absolutely no
basis to continue to press its claim given that the Rule was not vacated and will remain in effect
and continue to limit emissions of SO2 under the budgets provided in the Rule until EPA sets
revised budgets on remand.” Id. Defendants further contend that the “only duty remaining for
EPA is action on remand in accordance with the D.C. Circuit’s decision, but that duty is not
before this Court.” Id. at 5. Defendants assert that Plaintiff “may pursue a claim at some point
in the future if EPA delays action on remand . . . [however], that is not the claim Plaintiff has
alleged in this case and that claims is certainly not ripe now.” Id.
Plaintiff, in response, contends that the D.C. Circuit’s decision in Homer City
“invalidated the exact action EPA relies on here to resolve Sierra Club’s claim concerning the
agency’s outstanding nondiscretionary duty to promulgate a good neighbor FIP for Texas that
satisfies section 110(a)(2)(D)(i) of the Clean Air Act with respect to the 1997 PM2.5 NAAQS.”
Pl.’s Motion for Order / Response to Defs.’ Notice of Supplemental Authority, ECF Nos. [66] /
[67], at 2. Plaintiff cites the D.C. Circuit’s finding that the SO2 emissions budgets for Texas
established in the CSAPR are unlawful, and argues that the D.C. Circuit “nullified the Rule as it
relates to Texas, thereby necessarily leaving the agency’s duty to address Sierra Club’s claim in
this case unfulfilled.” Id. Plaintiff also points out that the D.C. Circuit chose not to vacate the
invalid good neighbor FIPs, at least in part, because vacatur risked “substantial disruption to the
trading markets that have developed around the 2014 emissions budgets.” Homer City, 795 F.3d
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at 132. Plaintiff argues that the practical result of the D.C. Circuit’s remand is “no different than
vacatur for purposes of determining whether EPA has satisfied its nondiscretionary FIP duty,”
Pl.’s Reply in Supp. of Pl.’s Mot. for Procedural Order, ECF No. [69], at 2-3. In short,
Plaintiff’s position is that the EPA does not have in place a valid VIP for Texas that meets the
Clean Air Act’s good neighbor provision and that its claim in this case is necessarily unresolved.
Id. at 3.
Upon review of the parties’ submissions, the Court finds that, in light of the unique
circumstances of this case, Plaintiff’s PM2.5 interstate transport claim is not moot. At the outset,
the Court observes that the EPA must meet a “heavy” burden in proving that Plaintiff’s claim is
moot. Los Angeles County v. Davis, 440 U.S. 625, 631 (1979). The Court may not dismiss a
claim as moot unless “it can be said with assurance that there is no reasonable expectation that
the violation will recur” and intervening events “have completely and irrevocably eradicated the
effects of the alleged violation.” Id. (internal citations omitted). “[A]s long as the parties have a
concrete interest, however small, in the outcome of the litigation, the case is not moot.” Roane v.
Leonhart, 741 F.3d 147, 150 (D.C. Cir. 2014) (quoting Knox v. Serv. Emps. Int’l Union, Local
1000, 132 S. Ct. 2277, 2287 (2012)).
Here, Defendants concede that the D.C. Circuit held as “invalid” the very part of the Rule
that, according to Defendants, satisfied the EPA’s duty underlying Plaintiff’s PM2.5 interstate
transport claim. See Defs.’ Opp’n to Pl.’s Mot. for Procedural Order, ECF No. [68], at 3 (“The
D.C. Circuit did, however, hold invalid the part of the Rule that satisfied the duty underlying
Plaintiff’s PM2.5 interstate transport claim.”). Defendants attempt to sidestep that concession by
pointing out that the D.C. Circuit remanded the Rule to the EPA, without vacatur, leaving the
Rule in effect while the EPA remedies the issues identified by the D.C. Circuit. The Court does
not find Defendants’ position convincing. The D.C. Circuit concluded that remand without
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vacatur was the appropriate remedy for unique circumstances entirely unrelated to the rule’s
legality. See Homer City, 795 F.3d at 132 (observing that vacatur risked “substantial disruption
to the trading markets that have developed around the 2014 emissions budgets”). Furthermore,
the D.C. Circuit specifically warned that “remand without vacatur creates a risk that an agency
may drag its feet and keep in place an unlawful agency rule.” Id. (emphasis added).
Accordingly, the D.C. Circuit urged the EPA “to move promptly on remand.” Id.
In light of the foregoing, the Court finds it untenable to conclude that dismissal of
Plaintiff’s PM2.5 interstate transport claim is warranted in this case, particularly where the D.C.
Circuit has expressly determined that the part of the Rule underlying Plaintiff’s claim is “invalid”
and “unlawful.” Homer City, 795 F.3d at 129, 132. Plaintiff still has a “concrete interest” in
pursuing its PM2.5 interstate transport claim, and in ensuring that the EPA fulfills its duty to
promulgate a valid 1997 PM2.5 good neighbor FIP for Texas. See Roane, 741 F.3d at 150
(quoting Knox, 132 S. Ct. at 2287); see also Sierra Club v. Johnson, 374 F. Supp. 2d 30, 32-33
(D.D.C. 2005) (“EPA’s duty to act is still . . . unfulfilled, because the Court of Appeals’ order
vacating [the agency’s action] operated to restore the status quo ante”) (citing U.S. Tanker
Owners Comm. v. Dole, 809 F.2d 847, 854-55 (D.C. Cir. 1987)). In short, Defendants bear a
“heavy” and “formidable” burden to prove that Plaintiff’s PM2.5 interstate transport claim is
moot, and the Court concludes that Defendants have not met that burden in this case. Friends of
the Earth, 528 U.S. at 190.
Having found that Plaintiff’s PM2.5 interstate transport claim is not moot, the Court finds
it appropriate to hold Plaintiff’s PM2.5 interstate transport claim in abeyance, until completion of
the EPA’s action adopting a valid 1997 PM2.5 good neighbor FIP for Texas, without prejudice to
Sierra Club’s right to move for additional relief should EPA fail to adopt or implement an
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expeditious scheduled on remand. The Court shall direct the EPA to file, within 45 days of this
Memorandum Opinion, by no later than July 29, 2016, a Notice describing the agency’s
schedule for proposing and completing action to adopt a valid Clean Air Act good neighbor FIP
for Texas with respect to the 1997 PM2.5 NAAQS, and to provide status reports to the Court
every 90 days thereafter.
IV. CONCLUSION
For the reasons set forth above, the Court shall DENY Defendants’ [54] Motion to
Dismiss for Lack of Jurisdiction, GRANT Plaintiff’s [55] Cross Motion to Hold in Abeyance,
and GRANT the relief requested by Plaintiff in its [67] Motion for Order. Specifically, the Court
shall issue an Order (1) directing the EPA to file, within 45 days of this Opinion, a Notice
describing the agency’s schedule for proposing and completing action to adopt a valid Clean Air
Act “good neighbor” federal implementation plan (“FIP”) for Texas with respect to the 1997
particulate matter (“PM2.5”) national ambient air quality standard (“NAAQS”), and to provide
status reports to the Court every 90 days thereafter; and (2) holding Plaintiff’s PM2.5 interstate
transport claim in abeyance until completion of EPA action adopting a valid 1997 PM2.5 good
neighbor FIP for Texas, without prejudice to Sierra Club’s right to move for additional relief
should EPA fail to adopt or implement an expeditious scheduled on remand.
An appropriate Order accompanies this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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