Natural Resources Defense Council, Inc. v. Ruckelshaus

No. 84-758 (D.D.C. September 14, 1984)

The court rules that the Environmental Protection Agency (EPA) violated nondiscretionary duties by failing to promulgate standards and nonconformance penalties for emissions from heavy-duty vehicles and engines under Clean Air Act § 201(a)(3)(A)(i)-(iii) and § 205(g)(3). The court holds the Clean Air Act directed EPA to promulgate standards for emissions of oxides of nitrogen from 1985 model year heavy duty vehicles during or before 1981 and particulate standards for vehicles in the 1981 model year. In addition, the Act required promulgation of nonconformance penalty regulations by August 7, 1978. The court rules that these duties were mandatory. The language of the statute and legislation leave no question that EPA was to have no discretion to deviate from the statutory schedules, a conclusion confirmed by courts of appeals and by EPA itself. EPA flagrantly failed to comply with the statutory mandate. The Agency did not take preliminary regulatory steps until 1981 and has failed to make further progress since. The court next rules that EPA failed to establish that prompt promulgation is infeasible, the only grounds on which the court could allow the extra time sought by EPA. EPA has not demonstrated that budgetary or staffing shortages or the need for additional information necessiate additional delay.

The court orders EPA to propose emission standards for heavy-duty vehicles and engines no later than October 15, 1984 and to promulgate final standards by March 15, 1985. In addition, it orders EPA to promulgate final generic nonconformance penalty rules by August 31, 1985, and final specific nonconformance penalty rules by December 31, 1985. The court finds that there is no need for the additional time requested by EPA since the attention already given the issues should allow the Agency to compress its normal procedures and there is no need for review by the Office of Management and Budget.

Counsel for Plaintiff
Eldon Greenberg
Natural Resources Defense Council, Inc.
1350 New York Ave. NW, Suite 300, Washington DC 20005
(202) 783-7800

Counsel for Defendant
David E. Dearing
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2741

[14 ELR 20817]

Pratt, J.:

Memorandum Opinion

Plaintiff, a national environmental organization, has brought suit against the Administrator of the United States Environmental Protection Agency (EPA), challenging the latter's failure to promulgate regulations governing the emission of oxides of nitrogen (NO_x) and particulate matter from heavy duty vehicles and engines¹ and providing for non-conformance penalties (NCP's) for vehicles and engines which do not meet such standards. The Administrator's duty to issue these standards arises from the Clean Air Act, 42 U.S.C. §§ 7401 et seq. (the Act). Plaintiff has moved this Court for summary judgment pursuant to Rule 56, Fed. R. Civ. P., declaring that defendant has failed to fulfill non-discretionary statutory duties under the Act, and for an injunction requiring defendant to comply with the Act forthwith. Having considered plaintiff's motion, defendant's opposition, plaintiff's reply, and the entire record herein, we grant plaintiff's motion and order defendant's compliance with the Act in accordance with a definite schedule.

Discussion

The Clean Air Act provides for regulation by the EPA, pursuant to certain timetables, of emissions of harmful pollutants from motor vehicles. See NRDC v. EPA, 655 F.2d 318, 320-322 [11 ELR 20361] (D.C. Cir. 1981). Certain portions of the Act, incorporated by § 224 of the 1977 Amendments, specifically direct the establishment by EPA of standards governing the emission of NO_x and particulate matter from heavy duty vehicles and engines. The legislative history of the amendments demonstrates that Congress regarded the specified standards and regulations as a matter of great urgency. See, e.g., H.R. Rep. No. 95-294 at 272, 4 Leg. Hist. at 2739; S. Rep. No. 95-127 at 61, 3 Leg. Hist. at 1441.

The sections of the Act at issue here specify that the EPA Administrator shall prescribe for the 1985 motor vehicle model year standards requiring reduction in NO_x emissions from heavy duty vehicles of at least 75% over the 1979 baseline model year. 42 U.S.C. §§ 7521(a)(3)(A)(i), (ii). The Administrator may deviate from this requirement only by temporarily revising the standards, id., at § 7521(a)(3)(B), or by changing them, id., at § 7521(a)(3)(E), in either case pursuant to notice-and-comment procedures. Moreover, the Administrator must exercise his or her authority to revise or change the standards no later than four years in advance of the 1985 model year. Id.

Meanwhile, the Act also mandates that the Administrator prescribe standards for particulates applicable to "classes or categories of vehicles manufactured during and after model year 1981." 42 U.S.C. § 7521(a)(3)(A)(iii). Finally, the Act specifies [14 ELR 20818] that the EPA promulgate, no later than one year following enactment of the 1977 amendments — that is, by August 7, 1978 — certain non-conformance penalties. 42 U.S.C. § 7525(g)(3). Those penalties would be paid by manufacturers which sold heavy duty vehicles or engines which do notconform with those applicable emission standards established pursuant to 42 U.S.C. § 7521.

Quite apart from the statutory language of the 1977 amendments, it is beyond doubt that Congress deemed the directives contained in the foregoing sections of the Act as mandatory. For example, the Conference Report dealing with the amendments declared that the standards which "mandate" a 75% reduction of NO_x heavy vehicle emissions over the baseline year will take effect in model year 1985, while the particulate standards "are to become effective as expeditiously as practicable . . . but in no event later than the 1981 model year." H.R. Rep. No. 95-564, 95th Cong., 1st Sess. 163 (1977), 3 Leg. Hist. 543. This mandatory quality of EPA's responsibilities concerning the NO_x regulations has been affirmed by both the Court of Appeals for this Circuit, NRDC v. EPA, 655 F.2d at 325, and by the agency itself. See, e.g., EPA "regulatory agendas," Plaintiff's 1-9(h) Statement, Exs. E-M.

Despite Congress' determination to establish a specific, unqualified timetable for the promulgation of regulations governing NO_x emissions from heavy vehicles, the EPA has done virtually nothing to establish those prescribed standards. Although EPA issued an Advance Notice of Proposed Rulemaking regarding NO_x standards during the waning days of the Carter Administration, 45 Fed. Reg. 5838, it has done nothing since that time: no promulgation of regulations, no announcement of proposed standards, and no attempt to revise temporarily or change the standards scheduled to be in place by 1985. The same inaction characterizes EPA's treatment of the subject of particulate standards. EPA issued proposed standards on January 7, 1981, 45 Fed. Reg. 1910, which were already too late to apply to vehicles manufactured in 1981, as they were supposed to. Some three and onehalf years later, EPA has still not issued final regulations. Finally, with respect to non-conformance penalties, EPA has never issued regulations covering such penalties for NO_x or particulate emissions. Congress specified that such penalties should be promulgated no later than August 7, 1978 — more than six years ago. In each of the foregoing cases, EPA has repeatedly declared that it would shortly issue the required regulations, only to in fact fail to meet any of its self-imposed timetables.²

We find no reasonable grounds for the delays thus far incurred, or any future postponement which would attend defendant's proposed timetable.Indeed, other than a somewhat irrelevant discussion of certain steps in the administrative process and the complexity of the issues EPA must address before issuing final regulations, defendant's brief is devoid of justification for the agency's laggard performance of its mandatory duties. It is nothing short of astonishing that the agency seeks additional time to promulgate the required regulations when it offers not one shred of evidence as to why it has thus far failed to issue those standards. We understand the complexity of the issues facing EPA in the area of NO_x and particulate emissions, not to mention the sensitivity of the novel technologies involved. We similarly recognize that EPA must compile an adequate record and explain the reasons for its decision. We have no reason to doubt that EPA is working "diligently" Def. Mem. at 7, at introduce the new technologies in the production of heavy vehicles. Yet Congress was aware of all these factors when, as the deliberate result of several years of debate, it concluded in the 1977 Amendments to the Clean Air Act that a specific timetable was called for to accelerate the cleanup of this country's air.

Although EPA asserts that it needs more than a year from the present time to promulgate regulations for NO_x and particulate emissions, as well as for non-conformance penalties, Congress has mandated that they already be in place at this time. We concur with another district court which, when faced with a similar case of EPA foot-dragging, noted that "[i]f Congress wanted to leave the Administrator with the flexibility to implement regulations based upon [his] own judgment of the most desirable time schedule, it obviously knew how to do so. Clearly, however, it did not." State of "New York v. Gorsuch, 554 F. Supp. 1060, 1064 [13 ELR 20248] (S.D.N.Y. 1983).

The only basis on which this court could extend the time for compliance within the Congressionally-mandated time limit — or deny summary judgment for plaintiffs — is if it found that it would be infeasible or impossible for the EPA, acting in good faith, to meet the deadline. The Court of Appeals for this Circuit has established the courts may excuse performance only for reasons of limited staff or budget, or because the agency requires further study of substantive issues. Alabama Power Co. v. Costle, 636 F.2d 323, 359 [10 ELR 20001] (D.C. Cir. 1980); NRDC v. Train, 510 F.2d 692, 712-13 [5 ELR 20046, 20696] (D.C. Cir. 1975). In such circumstances, the agency, not the complaining party, bears the burden of demonstrating the existence of an impossibility. Alabama Power, at 359. Courts must "scrutinize such claims carefully," Train, at 713, since "[t]he agency's burden in such case is especially heavy." Alabama Power, at 359.

The EPA makes no showing of impossibility or infeasibility. It does not argue that it suffers from any staff or budgetary handicaps. Nor does it present any evidence of need for further study, technical or otherwise, of the major issues involved in NO_x and particulate emissions from heavy duty vehicles and engines. In stead, it merely asserts that if the agency attempted to meet "more pressing schedules than those presently in effect, the Agency probably would be unable to promulgate sound rules, adequately supported by the administrative record." Def. Mem. at 3. When all we have before us is this remarkably abstract and obvious declaration that EPA must have defensible regulations and statements of purpose, we think it is clear that "this evidence does not demonstrate 'impossibility,' but rather a difference in rulemaking philosophy from that evinced by Congress." State of New York v. Gorsuch, 554 F. Supp. at 1066. As such, defendants fail to raise an issue of material fact which would preclude the issuance of an order by this court requiring compliance with the Congressional mandate. "To ignore or modify the statutory timetable would be to flout the considered judgment of Congress." Id., at 1063.

Other courts, under analogous circumstances, have not hesitated to grant summary judgment against EPA, requiring the agency to comply with statutory deadlines and rejecting far lengthier timeatables proposed by EPA. See, e.g., id.; Sierra Club v. Gorsuch, 551 F. Supp. 785 [13 ELR 20231] (N.D. Cal. 1982). Section 304(a) of the Clean Air Act, 42 U.S.C. § 7604(a), specifically provides that "the district courts shall have jurisdiction . . . to order the Administrator to perform such . . . act or duty" as called for by Congress. "The authority to set enforceable deadlines both of an ultimate and an intermediate nature is an appropriate procedure for exercise of the court's equity powers to vindicate the public interest." Train, at 705. Accordingly, it is entirely within the court's power to grant summary judgment for plaintiff — since no genuine issues as to the merits of the dispute exist — and to fashion a schedule requiring compliance with the Act.

Given the egregious delays encountered thus far, it is abundantly clear that a court order is necessary to make the EPA adhere to a definite regulatory schedule and execute its statutory duties. The schedule we propose closely parallels that advanced by plaintiff in its motions for summary judgment. We believe EPA can propose the NO_x and particulate standards and publish the same in the Federal Register no later than October 15, 1984, particularly in light of defendant's proposed August 15, 1984 deadline for the same contained in its opposition to plaintiff's motion. There is every reasons to believe that all EPA offices concerned [14 ELR 20819] can resolve any remaining minor differences in the near future, if they have not, as is likely, done so already. See Inside EPA, April 27, 1984, Pl. Reply, Ex. B at 5-6. OMB review is not only unnecessary, but in contravention to applicable law. See Exec. Order 12291, § 8(a)(2), 46 Fed. Reg. 13193, 13198 (Feb. 19, 1981). As for public review, EPA should be able to hold a hearing one month later, and receive public comments one month after that, or by December 15, 1984.This should not prove onerous, since all parties will likely have fully established their positions prior to the public hearing.

Following receipt of public comments, EPA should find it possible to evaluate them within a two-month period ending Febuary 15, 1985. Most likely, the agency already has, or will shortly have, a well-developed position on NO_x and particulate emission standards based on both several years' experience with the issues, as well as the benefit of the specific record developed in response to its January, 1981 rulemaking notices on NO_x and particulate emissions. Finally, we believe defendant can perform its final review and promulgation in one month, by March 15, 1985. There are no reasons why "steering committee" and "Red Border" review cannot be limited to two weeks each, while OMB review can, as noted previously, be eliminated entirely. We permit this final deadline under the assumption that this date is sufficiently early in the calendar year — and in the auto manufacturers' annual production process — so as not to lose another entire model year with respect to the application of heavy duty NO_x and particulate standards.

Similar compression of the schedule fir promulgation of non-conformance penalties should also prove feasible. Assuming that EPA adheres to its policy of holding separate rulemakings for generic and specific NCP's we discern that the rulemaking process can be shortened by some three months by eliminating a public hearing and OMB review.³ Under this schedule, EPA should complete the regulatory negotiation process by March 1, 1985, and publish a generic rule by August 31, 1985. As for the specific NCP's, we endorse in their entirety plaintiff's suggestions for shortening this process. EPA offers no basis for needing substantial time after promulgation of the generic NCP's to prepare specific NCP's and itself observes that once the former are in place, formulation of the latter should be "less burdensome and timeconsuming." Cannon Aff. at P18. Accordingly, we believe the EPA can propose the specific NCP's concurrently with the publication of the generic NCP's, shrink the proposed three-month comment period to one month, shorten the evaluation period from four to two months, and limit the final approval process to one month. Under this schedule, EPA should have specific NCP's in place by December 31, 1985.

We believe these schedules are reasonable under the circumstances and fairly balance the EPA's procedural and statutory obligations with the public's urgent need for clean air and a healthy environment. Defendant has had more than enough time to do the job Congress mapped out for it, and in light of the increasing evidence of health risks associated with NO_x and particulate emissions, Pl. 1-9(h) Statement, Ex. D, we will tolerate no further delay in the promulgation of proposed and final regulations.

An order consistent with the foregoing is entered this day.

Order

Upon consideration of plaintiff's motion for summary judgment, defendant's opposition, plaintiff's reply, and the entire record herein, and having found that there is no genuine issue as to material fact and that plaintiff is entitled to judgment as a matter of law, it is by the court this 14th day of September, 1984,

ORDERED that plaintiff's motion for summary judgment be and the same hereby is granted; and it is

DETERMINED AND DECLARED that defendant has a non-discretionary statutory duty to establish standards for emission of oxides of nitrogen (NO_x) and particulate matter from heavy-duty vehicles and engines pursuant to the Clean Air Act, 42 U.S.C. §§ 7521(a)(3)(A)(i), (iii), and to promulgate regulations specifying penalties to be paid by manufacturers for selling heavyduty vehicles or engines not in conformity with such emission standards, 42 U.S.C. § 7525(g), and that defendant is in violation of the Act for failing to do so; and it is

ORDERED that defendant comply FORTHWITH which the Act by establishing proposed standards for NO_x and particulate emissions from heavy-duty vehicles or engines and publishing the same in the Federal Register no later than October 15, 1984, and final regulations for the same no later than March 15, 1985; and it is

ORDERED that defendant comply with the Act by publishing proposed generic non-conformance penalty regulations no later than March 15, 1985, and final generic NCP's no later than August 31, 1985; and it is

ORDERED that defendant comply with the Act by publishing proposed specific non-conformance penalty regulations no later than August 31, 1985, and final specific NCP's no later than December 31, 1985; and it is

FURTHER ORDERED that this court shall retain continuing jurisdiction over this matter until defendant has fully complied with the terms of this order.

1. Heavy duty vehicles are defined by the Act to include a "truck, bus or other vehicle manufactured primarily for use on the public streets, roads and highways . . . . which has a gross vehicle weight . . . in excess of six thousand pounds," 42 U.S.C. § 7521(b)(3)(C).

2. For example, in March, 1980, EPA stated that it would issue final NO_x standards by December, 1980, and final particulate standards by April, 1981. 45 Fed. Reg. 16839 (March 14, 1980). A little over a year later, EPA had pushed back the date for issuance of the particulate standards to June, 1982, and the date for issuance of the NO_x standards to July, 1983. 46 Fed. Reg. 23706 (April 27, 1981). Still another year after that, on April 12, 1982, EPA declared that both sets of regulations would be final by November, 1983. 47 Fed. Reg. 15734 (April 12, 1982). By the end of 1982, these dates had been changed to September, 1984. 47 Fed. Reg. 48759-60 (October 28, 1982). Nearly a year ago, EPA promised final action by December, 1984, and noted that new notices of proposed rulemaking for both NO_x and particulate standards would be issued by January, 1984. 48 Fed. Reg. 47915 (October 17, 1983). EPA has now modified those dates twice in the last year. On April 19, 1984, the dayafter plaintiff filed this suit, EPA announced in its regulatory agenda that the heavy duty NO_x and particulate standards would be proposed in May, 1984, and that final action on such standards would be taken in May, 1985. See 49 Fed. Reg. 16354, 16412 (April 19, 1984). Only a month later, EPA, in its opposition to plaintiff's motion, stated that it could only propose the standards by August 15, 1984, and take final action by September, 1985. Now apparently, that proposed deadline has also passed with EPA having taken no action whatsoever.

3. EPA's regulatory negotiation procedure should obviate the need for a public hearing, while OMB review is inappropriate under the instant circumstances pursuant to Exec. Order 12291.