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Sierra Club v. Whitman

ELR Citation: 32 ELR 20538
Nos. No. 00-2206(CKK/JMF), (D.D.C., 03/11/2002)

The court recommends that the U.S. Environmental Protection Agency (EPA) be ordered to publish formal Clean Air Act (CAA) ozone attainment determinations for the Birmingham, Alabama, area and the Kent and Queen Annes counties area in Maryland. Environmental groups brought suit against EPA alleging that the Agency failed to meet the six-month CAA deadlines for ozone attainment determinations in the areas. Both areas were classified as marginal ozone nonattainment areas with CAA-imposed ozone attainment dates of November 15, 1993. Under CAA §181(b)(2), EPA should have made an attainment determination for both areas by May 15, 1994. EPA argued that it had published the determinations, albeit belatedly. In 1997, the state of Alabama requested a redesignation of its area from nonattainment to attainment, but EPA disapproved this request in a rule that included a brief mention of the area's attainment data. EPA claimed that this publication served as the formal determination required by CAA §181(b). Similarly, the Agency claimed that a 1995 draft rule met its §181(b) requirements for the counties. The court first holds, however, that both publications provided inadequate notice under the Administrative Procedure Act (APA) and, thus, did not meet §181(b)'s standards for formal determinations. The title to the 1995 rule made no mention of Maryland or the counties and specifically only referenced the state of Virginia. It is unreasonable to expect anyone searching for information on the counties to scrutinize such a role. The later omission of any mention of Maryland and the counties from this rule added to the ambiguity of the attainment status of the area. Moreover, the 1997 rule applied to Alabama's redesignation request included no invitation to comment on the alleged attainment determination, and, in fact, only mentioned the area's attainment status in two sentences that failed to reference CAA §181. Such a rule does not meet the APA's reasonable opportunity to participate standard. The court next holds that it has jurisdiction to review the groups' challenges under a CAA §104 provision giving district courts jurisdiction over a private plaintiff's allegations of failure by EPA to perform a non-discretionary duty.

The full text of this decision is available from ELR (9 pp., ELR Order No. L-474).

Counsel for Plaintiffs
Stuart Henry
Henry, Lowerre, Johnson, Hess & Frederick
202 W. 17th St., Austin TX 78701
(512) 479-8125

Counsel for Defendants
Wells D. Burgess
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000