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Club v. McCarthy

United States District Court, N.D. California

May 7, 2015

SIERRA CLUB, et al., Plaintiffs,
v.
GINA McCARTHY, in her official capacity as Administrator of the United States Environmental Protection Agency, Defendant. Consolidated Case No. 14-cv-3198-YGR

ORDER GRANTING IN PART MOTIONS AND CROSS-MOTIONS FOR SUMMARY JUDGMENT

YVONNE GONZALEZ ROGERS, District Judge.

Plaintiffs Sierra Club and Wild Earth Guardians ("Plaintiffs") filed a Clean Air Act citizen suit to compel Defendant Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency ("EPA") to undertake mandatory duties for which statutory compliance deadlines had passed. ( Sierra Club v. McCarthy, 14-cv-5091-YGR, complaint filed November 18, 2014 ["the 5091 Action"].)[1] Specifically, Plaintiffs sought an order that EPA be required to fulfill certain non-discretionary duties under 42 U.S.C. section 7410(a)(2)(D)(i)(I) of the Clean Air Act ("CAA"), referred to as the "Good Neighbor" provisions, with respect to the states of Arkansas, California, Connecticut, Georgia, Iowa, Illinois, Kansas, Massachusetts, Maine, Michigan, Minnesota, Missouri, New Hampshire, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Virginia, Washington, and West Virginia.

On January 16, 2015, in the 5091 Action, Plaintiffs filed a Motion for Summary Judgment, seeking entry of an order declaring that EPA had failed to make the required finding of failure to submit a Good Neighbor State Implementation Plan (or "SIP") for the 2008 ozone National Ambient Air Quality Standard ("NAAQS"), and order EPA to do so within thirty days. (5091 Action, Dkt. No. 21.) Previously, on January 5, 2015, Plaintiff Sierra Club had moved for summary judgment in the now-related and consolidated 3198 Action on Claim 1 therein, seeking the identical relief with respect to the state of Tennessee. (3198 Action, Dkt. No. 35.) EPA, in its cross-motion and response to those motions, conceded liability but argued that it would need ninety days to comply with those mandatory duties.

Having carefully considered the arguments and papers submitted, and in light of the parties' substantial agreement as to the facts herein, the Court finds that there is no triable issue of material fact and GRANTS IN PART Plaintiffs' motion for summary judgment in the 5091 Action and in the 3198 Action and ORDERS that EPA comply with its statutory obligations under 42 U.S.C. section 7410(a)(2)(D)(i)(I) with respect to the states of Arkansas, California, Connecticut, Georgia, Iowa, Illinois, Kansas, Massachusetts, Maine, Michigan, Minnesota, Missouri, New Hampshire, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, Washington, and West Virginia no later than June 30, 2015.

I. STATUTORY OVERVIEW OF THE CLEAN AIR ACT

Under the CAA, EPA is required to set the NAAQS for certain pollutants, including ozone. 42 U.S.C. § 7409(a). Within three years of promulgating the ozone NAAQS, the CAA requires each state to submit a SIP that provides for the "implementation, maintenance, and enforcement" of the standard. 42 U.S.C. § 7410(a)(1). Each SIP is required to contain a "Good Neighbor" provision, which prohibits the state from emitting air pollutants which will contribute significantly to nonattainment, or interference with maintenance in other states. 42 U.S.C. § 7410(a)(2)(D)(i)(I). The CAA requires EPA to determine whether each SIP submitted is administratively complete. 42 U.S.C. § 7410(k)(1)(B).

II. FACTUAL BACKGROUND

EPA promulgated a NAAQS for ozone on March 12, 2008. 73 Fed. Reg. 16436 (Mar. 27, 2008). Each state was required to submit its SIP for the 2008 ozone NAAQS by March 12, 2011. 42 U.S.C. § 7410(a)(1). For states that failed to meet that deadline, EPA was required to issue a notice of failure to submit by the September 12, 2011.

On October 17, 2012, this Court found that EPA failed to meet that deadline in violation of its nondiscretionary duties under the CAA. WildEarth Guardians v. Jackson, No. 11-CV-05651-YGR, Order Granting In Part Plaintiffs' Motion for Summary Judgment, and Granting Defendant's Cross-Motion for Summary Judgment, Dkt. No. 64 (Oct. 17, 2012). The Court also found that, for certain states which submitted an SIP after the deadline, EPA had failed to take final action by approving in full, disapproving in full, or approving in part and disapproving in part, within the time required by statute. Id . citing 42 U.S.C. § 7410(k)(2), (3). Therefore, this Court required EPA to issue findings that certain states had failed to submit SIPs for the 2008 ozone National Ambient Air Quality Standard by no later than January 4, 2013.

On January 4, 2013, pursuant to this Court's order, EPA issued a finding that numerous states had failed to submit 2008 ozone SIPs except as to the "Good Neighbor" provisions found in 42 U.S.C. § 7410(a)(2)(D)(i)(I). Findings of Failure To Submit a Complete State Implementation Plan, 78 Fed. Reg. 2882 (Jan. 15, 2013). EPA declined to make findings of failure to submit on the Good Neighbor provisions in reliance on its interpretation of the D.C. Circuit's decision in EME Homer City Generation v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012), concluding that "a SIP cannot be deemed to lack a required submission or deemed deficient for failure to meet the 110(a)(2)(D)(i)(I) obligation until after the EPA quantifies that obligation." Findings of Failure To Submit a Complete State Implementation Plan, 78 Fed. Reg. at 2884.

Since then, the Supreme Court reversed the D.C. Circuit decision in Homer City, holding that the plain language of the Clean Air Act mandated that states submit Good Neighbor provisions within three years of EPA promulgating a NAAQS, and that EPA need not undertake any action to trigger this obligation. E.P.A. v. EME Homer City Generation, L.P., 134 S.Ct. 1584, 1600 (2014). In light of the Homer City opinion, on August 1, 2014, the D.C. Circuit vacated EPA's January 4, 2013 determination that it need not address the Good Neighbor provisions, and remanded the matter to EPA for further consideration. See Maryland v. EPA, 13-1070, Order, Dkt. No. 1505606, at 1 (D.C. Cir. Aug 1, 2014). Subsequent to the D.C. Circuit's vacating EPA's January 4, 2013 determination, EPA has done nothing to cure its failure to address its Good Neighbor provision duties, despite requests for action by Sierra Club, Environmental Defense Fund, the States of Maryland, Connecticut, and Delaware, and the District of Columbia.

The following states have not submitted Good Neighbor provisions in compliance with section 110(a)(2)(D)(i)(I) of the Clean Air Act, 42 U.S.C. § 7410(a)(2)(D)(i)(I), for the 2008 ozone NAAQS: Alabama, Arkansas, California, Connecticut, Florida, Georgia, Iowa, Illinois, Kansas, Massachusetts, Maine, Michigan, Minnesota, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, Washington, and West Virginia. EPA has not issued a finding of failure to submit a completed SIP as required under the CAA for any of these states.

III. LEGAL STANDARD

Summary judgment is proper where there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as ...


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