Zook v. Environmental Protection Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SAMUEL ZOOK, et al., )
)
Plaintiffs, )
)
v. ) Case N0. 13-cv-1315 (RJL)
)
GINA MCCARTHY and the UNITED )
sTATEs ENVIRQNMENTAL ) F I L E D
PROTECTION AGENCY, )
) JuN 3 0 »2011»
Defendants' ) Clerk, U.S. Dlstrict & Bankruptcy
Courts for the Distn'ct of Co|umb|a
MEMORAN UM OPINION
(June L, 2()14) [Dl329 F. Supp. 2d 55, 63 (D.D.C. 20()4). No CAA provision allows
citizens to sue EPA directly for failure to perform discretionary acts or duties.'
II. Factual Background
An'imal feeding operations, particularly concentrated animal feeding operations,
emit substances such as ammonia, hydrogen sulfide, particulate matter, and volatile
organic compounds into the air.z Compl. $13. A number of scientific studies and reports
have documented negative impacts from AFO air emissions. Id 1]1113-23. Among the
findings have been elevated ammonia levels, z``a'. 111117, 20-21, and increased rates of
asthma, z``a’. 1l18. At least two reports have recommended that EPA regulate air pollution
caused by AFOs. [d. Wl§, 19. Despite knowledge of these studies, EPA has not
regulated certain pollutants emitted from AFOs, or listed AFOs as stationary sources.3
Id. 111]24, 33.
Plaintiffs are residents of Winneshiek County, Iowa, who teach at, have attended,
or have children who attend a school that was the focus of one of the studies. Id. 11115-8,
18. They bring this suit under the CAA’s citizen suit provision, 42 U.S.C. § 76()4(a), and
claim two violations ofthe Act: (1) failure to list AFO pollutants and establish air quality
criteria and NAAQS pursuant to Section 108, Ia’. 1?1128-3 1; and (2) failure to list AFOs as
l Other mechanisms through which plaintiffs may seek the reliefthey desire are discussed below.
2 For the purposes of analyzing this motion to dismiss under Federal Rule of Civil Procedure l2(b)(6), l
take all of the factual allegations in the Complaint as true. See Sparrow v. Unitea’Air Lz``nes, Inc., 216
F.3d 11ll, 1113 (D.C. Cir. 2000).
3 Plaintiffs do not specify which AFO pollutants, exactly, they request the EPA list as criteria pollutants.
The complaint alleges that among the pollutants emitted from AFOs are ammonia, hydrogen sulfide,
particulate matter, and volatile organic compounds. Compl. 1113. The request for relief uses the broad
term "pollutants from AFOs." Id. at Relief Requested. EPA already has issued air quality criteria and
established NAAQS for particulate matter. 40 C.F.R. §§ 50.6, 50.7.
4
stationary sources of air pollution pursuant to Section 1 1 l, Id. 111]32-35. Plaintiffs request
a declaratory judgment that this lack of action violates the CAA, as well as an order
directing EPA to so list the AFOs and pollutants they emit. Compl. at Relief Requested.
Defendants move to dismiss under Federal Rule of Civil Procedure l2(b)(6), arguing that
plaintiffs fail to allege a nondiscretionary duty that would allow them to bring this action
under the CAA’s citizen suit provision. Def. Mot. to Dismiss l.
LEGAL STANDARD
Def``endants properly bring this motion to dismiss under Federal Rule of Civil
Procedure l2(b)(6) See Sz``erra Club v. Jacksorz, 648 F.3d 848, 853-54 (D.C. Cir. 201l).
A complaint must be dismissed under Federal Rule of Civil Procedure l2(b)(6) unless it
alleges facts that, if true, "state a claim to relief that is plausible on its face." Bell AIZ.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of analyzing a l2(b)(6)
motion to dismiss, the court accepts the factual allegations in the complaint as true, but is
not required to accept as true legal conclusions couched as factual allegations. Ashcroft
v. /'qbal, 556 U.S. 662, 678 (2009).
ANALYSIS
I. Sections 108/109: Criteria P0llutants
lt is not clear from the face of the complaint whether plaintiffs allege failures to
perform or unreasonable delays in performing nondiscretionary duties/t The difference
is one of time frames: a failure to perform claim requires a date-certain deadline, see
4 In their Resistance to Defendant’s l\/lotion to Dismiss, plaintiffs acknowledge that courts have
interpreted failure to perform duties that are to be performed "from time to time" as unreasonable delay
claims. Resistance to Def. Mot. to Dismiss 7 [Dkt. # l4].
5
Sierra Club v. Thomas, 828 F.2d 783, 790-91 (D.C. Cir. 1987), while unreasonable delay
does not. see Am. Lung Ass ’n v. Reilly, 962 F.2d 25 8, 263 (2d Cir. 1992). However, both
types of claims require the statute to impose on the EPA a nondiscretionary requirement
to act. 42 U.S.C. § 7604(a). lf Section 108 does not impose a nondiscretionary duty,
then this court cannot grant relief on either a failure to perform claim or an unreasonable
delay claim arising out of that section, and timing questions need not be reached.
"[T]he district court has jurisdiction, under Section 304, to compel the
Administrator to perform purely ministerial acts, not to order the Administrator to make
particularjudgmental decisions." Envtl. Def Funa’ v. Tlzomas, 870 F.2d 892, 899 (2d
Cir. 1989); see also Am. Rd. & Transp. Buz``lclers Ass ’n v. EPA, 865 F. Supp. 2d 72, 81
(D.D.C. 2012) (citing Envll. Def Fund). "Congress provided for district court
enforcement under section 304 in order to permit citizen enforcement of clear-cut
violations by polluters or defaults by the Administrator where the only required judicial
role would be to make a clear-cut factual determination of whether a violation did or did
not occur." Sz``erra Clul), 828 F.2d at 791 (intemal quotation marks omitted).
Plaintiffs here request that 1 order EPA to place pollutants from AFOs on the list
and to establish air quality criteria and NAAQS for those pollutants, Unfortunately for
the plaintiffs, 1 cannot! The statute makes clear that EPA’s listing duty is a
nondiscretionary duty to list any pollutant that EPA has determined meets the criteria in
Section l08(a)(l)(A) and (B). See Bennet v. Spear, 520 U.S. 154, 175 (1997) (explaining
that agency’s duty was not discretionary when the imperative "shall" was used in the
statute); Allz'ecl Pz``lols Ass ’n v. Pension Bene/Zt Gar. Corp., 334 F.3d 93, 98 (D.C. Cir.
6
2003). Case law confirms this reading~the Second Circuit has found EPA must list
those pollutants it already has determined to "cause or contribute to air pollution which
may reasonably be anticipated to endanger public health or welfare" and result from
multiple sources.$ Nal’l Res. Def. Council, Inc. v. Traz'n, 545 F.2d 320, 325 (2d Cir.
1976) (holding that "the Administrator must list those pollutants which he has determined
meet the two requisites set forth in section 108"). Listing air pollutants under Section
108(a)(l) triggers in tum a mandatory duty to issue air quality criteria and NAAQS for
those listed pollutants under Section 108(a)(2) and Section 109. 42 U.S.C. § 7408(a)(2)
("The Administrator shall issue air quality criteria for an air pollutant within 12 months
after he has included such pollutant in a list under paragraph (1)."); Ia’. § 7409(a)(2)
("With respect to any air pollutant for which air quality criteria are issued . . . the
Administrator shall publish . . . proposed national primary and secondary ambient air
quality standards for any such pollutant.").
However, the nondiscretionary duty to list a specific pollutant does not exist
unless and until EPA first makes policy determinations as to that pollutant. And, the
statute explicitly leaves the endangerment determination of Section lO8(a)( 1)(A) up to
the EPA Administrator’s sole judgment. Indeed, "the use of ‘in his judgment’ reveals
that Congress sought to assign the agency the responsibility to judge or determine which
pollutants belong to the category the agency is required to regulate . . . ." Frz'encls of the
5 The Train court determined that Section l08(a)(l)(C) does not impose an independent requirement
necessary to trigger mandatory listing when the criteria in Sections l08(a)(l)(A) and (a)(l)(B) have been
met. Nar’l Res. Def. Council, Inc. v. Train, 545 F.2d 320, 327-28 (2d Cir. 1976). EPA contends Traz``n
was wrongly decided on this point. Because EPA has made nojudgments satisfying Sections
l08(a)(l)(A) and (a)(l)(B), 1 do not reach the issue. Def. Mot. to Dismiss 15 n.l l.
7
Earth v. EPA, 934 F. Supp. 2d 40, 49 (D.D.C. 2013) (analyzing Section 231 ofthe CAA,
codified at 42 U.S.C. § 7571). Knowledge-or even acknowledgement-ofa pollutant’s
adverse effects does not constitute the endangerment determination necessary to trigger
the duty to list. See Envtl. Def. Fund, 870 F.2d at 899. In the absence of an affirmative
determination made by EPA that particular AFO air pollutants endanger public health or
welfare and result from multiple sources, there is no mandatory duty to include those
pollutants on the Section l08(a)(l) list.
Plaintiffs in this case do not allege, nor could they, that EPA already has
determined that AFO pollutants satisfy the criteria in Section l08(a)(l)(A) and (B). See
generally Compl. Therefore, there is no nondiscretionary duty that would allow plaintiffs
to bring a claim under Section 304 to order EPA to list those pollutants under Section
l08(a)(1). As such, granting plaintiffs’ requested relief would improperly usurp EPA’s
exclusive authority to make the substantive judgment that AFO pollutants "cause or
contribute to air pollution which may reasonably be anticipated to endanger public health
or welfare." 42 U.S.C. § 7408(a)(l)(A). ln addition, the requirements under Sections
108(a)(2) and 109 for EPA to establish air quality criteria and NAAQS apply only to
those pollutants listed under Section 108(a)(1). Thus, there is no nondiscretionary duty to
issue such standards for pollutants EPA has not found to fulfill Section l08(a)(l)’s
. . . . 6
discretionary criteria.
6 Even ifI were to construe plaintiffs’ request as a narrower one to compel EPA to make ajudgment-
anyjudgment_regarding the criteria outlined in Section l08(a)(l) (which may then trigger the duty to
establish air quality criteria and NAAQS), plaintiffs still do not state a claim upon which 1 can grant
relief. The statutory language of 42 U.S.C. § 7408(a)(l) does not impose a clear nondiscretionary duty
for EPA to make an endangerment finding for any particular air pollutants, including AFO air pollutants.
8
III. Section 11: Stationary Sources
Finally, the same reasoning and conclusion apply to plaintiffs’ request that l order
EPA to list AFOs as stationary sources under Section 1 1l. Compl. at Re1iefRequested.
The language and structure of the two provisions are similar: Section 11 l(b)(l)(A)
provides that EPA shall list stationary sources which, "in the Administrator’s judgment . .
. cause[], or contribute[] significantly to, air pollution which may reasonably be
anticipated to endanger public health or welfare." 42 U.S.C. § 741 l(b)(l)(A). Although
this creates a nondiscretionary duty for EPA to list those stationary sources which it
already has judged to endanger public health or welfare, it does not create a
nondiscretionary duty when such a determination has not been made. Nor does it create a
nondiscretionary duty to make an endangerment finding_one way or the other_for any
category of stationary sources, for the reasons discussed above and in Frz'ends of the
Earth. 934 F. Supp. 2d 40. Plaintiffs may file a rulemaking petition seeking their desired
policy outcomes, but the absence of a nondiscretionary duty to list AFOs as stationary
sources means plaintiffs do not state a claim upon which this court can grant relief under
Section 304.
See Friends ofthe Earth v, EPA, 934 F. Supp. 2d 40, 51 (D.D.C. 2013) (examining similar language in
another part of the statue and concluding that “[s]ince the language of the statue does not clearly create a
mandatory duty to undertake the endangerment analysis, the Court . . . cannot compel the agency to begin
[an endangerment analysis] under section 304."'). Other avenues exist through which plaintiffs may
request that EPA perform the desired actions. Ia'. 54-55.
9
CONCLUSION
Thus, for all the foregoing reasons, defendants’ Motion to Dismiss [Dkt. #12] is
hereby GRANTED. An appropriate order shall accompany this Memorandum Opinion.
f »~
RICHARD J LEON
United States Disitrict Judge