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Center for Biological Diversity v. McCarthy

United States District Court, N.D. California

April 6, 2015

GINA McCARTHY, Defendant.


WILLIAM H. ORRICK, District Judge.


Plaintiffs Center for Biological Diversity ("CBD") and Center for Environmental Health ("CEH") filed this action against defendant Gina McCarthy in her official capacity as administrator of the Environmental Protection Agency ("EPA"), alleging that the EPA has failed to comply with certain duties mandated by the Clean Air Act in a way that impacts fifteen judicial districts, including twelve states and the Commonwealth of Puerto Rico. California is not one of those states. The issue I must decide in this motion to transfer venue is whether the plaintiffs' desire to litigate here and the inconvenience to them if I transferred the case is outweighed by the local interest of the other districts to have the case heard in one of them. If I transfer the case to one of the other districts, I will not have advanced the public interest of the other fourteen. Because of the plaintiffs' choice of this forum and the inconvenience they would suffer if I transfer the case, and because the number of other districts that are affected dilutes the interest of any one of them to have the case transferred to it, I DENY the motion to transfer.


The Clean Air Act requires the EPA to promulgate and implement National Ambient Air Quality Standards ("NAAQS") for certain pollutants. First Amended Complaint ("FAC") ¶ 18. NAAQS establish maximum allowable concentrations for the pollutants they govern. Id. Once the EPA promulgates a NAAQS, it must designate regions across the United States as either attainment regions (i.e., regions that already satisfy the standard) or nonattainment regions (i.e., regions that do not already satisfy the standard). FAC ¶ 19. The Act also requires states to provide SIPs to the EPA. FAC ¶ 20. All states must provide "infrastructure" SIPs within three years of a new or revised standard's promulgation to explain plans for implementing the standard within their borders. FAC ¶ 21. States with nonattainment regions must provide "nonattainment" SIPs to explain plans for implementing the relevant standards within their particular nonattainment regions. FAC ¶ 22.

The EPA must determine whether a SIP is "administratively complete" within six months of the SIP submission deadline. FAC ¶ 23. If a state fails to submit a required SIP, the EPA must publish a "finding of failure to submit" in the Federal Register. FAC ¶ 24. Once a state submits an administratively complete SIP, the EPA has twelve months to "take final action" on the SIP by approving it in full, disapproving it in full, or approving it in part and disapproving it in part. FAC ¶ 25.

Plaintiff CBD is a non-profit organization whose mission is to "ensure the preservation, protection, and restoration of biodiversity, native species, ecosystems, public lands and waters, and public health through science, policy, and environmental law." FAC ¶ 11. It is incorporated in California and has more than 50, 000 members throughout the United States and the world. Id. Plaintiff CEH is a nonprofit organization based in Oakland, California. FAC ¶ 13. It "helps protect the public from toxic chemicals and promotes business products and practices that are safe for the public health and the environment." Id.

Plaintiffs make the following three claims under the Clean Air Act. First, the EPA failed to make "findings of failure" regarding nonattainment SIPS for Pottawattamie, Iowa and Arecibo, Puerto Rico.[1] FAC ¶ 2. Second, the EPA failed to take final action to approve or disapprove, in whole or in part, nonattainment SIPs for six regions: (1) Tampa, Florida; (2) Muncie, Indiana; (3) Cleveland, Ohio; (4) Delta, Ohio; (5) Eagan, Minnesota; and (6) Frisco, Texas. FAC ¶ 3. Finally, the EPA failed to take final action to approve or disapprove, in whole or in part, the infrastructure SIP for North Carolina. FAC ¶ 4.

McCarthy moves to transfer the case to a judicial district that is either (i) in one of the states or territories whose air quality is at issue in this litigation; or (ii) where the acts or omissions at issue allegedly occurred or will occur. Mot. (Dkt. No. 31). McCarthy identifies fifteen districts that satisfy one or both of these criteria: (1) District of Puerto Rico, (2) Southern District of Iowa, (3) Middle District of Florida, (4) District of Minnesota, (5) Eastern District of Texas, (6) Southern District of Indiana, (7) Northern District of Ohio, (8) District of Kansas, (9) Southern District of New York, (10) Northern District of Georgia, (11) Northern District of Illinois, (12) Northern District of Texas, and (13) Eastern, (14) Western, and (15) Middle Districts of North Carolina. Id. I heard argument from the parties on March 25, 2015. Dkt. No. 36.


"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." 28 U.S.C. § 1404(a). Section 1404(a) "requires two findings-that the district court is one where the action might have been brought and that the convenience of parties and witnesses in the interest of justice favors transfer."[2] Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985) (quotations omitted). The "district court has discretion to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness." Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (quotations omitted).

Under the convenience inquiry, the "defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum." Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). The defendant must point to, and the court must weigh, "private and public interest factors affecting the convenience of the forum." Id. These factors include:

(1) the plaintiff's choice of forum; (2) the convenience of the parties; (3) the convenience of the witnesses; (4) ease of access to evidence; (5) familiarity of each forum with the applicable law; (6) feasibility of consolidation of other claims; (7) any local interest in the controversy; and (8) the relative court congestion and time [to] trial in each forum.

Gerin v. Aegon USA, Inc., No. C 06-5407, 2007 WL 1033472, at *4 (N.D. Cal., Apr. 4, 2007) (citing ...

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