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Sierra Club v. United States Environmental Protection Agency

ELR Citation: 46 ELR 20113
Nos. 10-cv-01541, (D.D.C., 06/14/2016) (Kollar-Kotelly, J.)

A district court ordered EPA to impose a "good neighbor” federal implementation plan (FIP) for Texas with respect to the 1997 fine particulate matter (PM2.5) NAAQS. In 2015, the D.C. Circuit invalidated portions of EPA's Cross-State Air Pollution Rule, which included a FIP addressing interstate transport of pollutants from Texas. The D.C. Circuit remanded the rule to EPA, leaving the rule in effect while EPA remedied the issues identified by the court. An environmental group filed suit against EPA, asking the court to compel Agency action. Relying on the fact that the rule remains in effect on remand, EPA argued the lawsuit is moot because it already fulfilled its duty to promulgate a FIP addressing interstate transport of pollutants from Texas. But the D.C. Circuit held as “invalid” the very part of the rule that, according to EPA, satisfied the Agency's duty underlying the group's PM2.5 interstate transport claim. The D.C. Circuit concluded that remand without vacatur was the appropriate remedy for unique circumstances entirely unrelated to the rule’s legality. It also urged EPA “to move promptly on remand.” Dismissal of the groups' interstate transport claim on mootness grounds is therefore not warranted. The district court thus held the groups' PM2.5 interstate transport claim in abeyance, until completion of EPA’s action adopting a valid 1997 PM2.5 good neighbor FIP for Texas, without prejudice to the group's right to move for additional relief should EPA fail to adopt or implement an expeditious schedule on remand. EPA must file by July 29, 2016, a notice describing its schedule for proposing and completing action to adopt a valid CAA good neighbor FIP for Texas with respect to the 1997 PM2.5 NAAQS, and it must provide status reports to the district court every 90 days thereafter.