New York v. Ruckelshaus

No. 84-0853 (D.D.C. October 5, 1984)

The court rules that defendant violated a non-discretionary duty in failing to act on plaintiffs' Clean Air Act § 126 petitions, which concern interstate air pollution from the midwest, within 60 days and failed to demonstrate that he should be allowed extra time. Defendant concedes that he has violated the terms of § 126 by not ruling on plaintiffs' § 126 petitions for over two years in spite of the statutory 60-day deadline. The court rejects defendant's request for approximately six months within which to rule. It notes that while it is within its equitable powers to extend statutory deadlines when it is impossible to comply, this discretion is to be exercised only in exceptional circumstances. Finding that defendant failed to justify an extension of the already long delay, the court orders him to act on the petitions within 60 days.

Counsel for Plaintiffs
David P. Wooley, Ass't Attorney General
Department of Law, Capitol, Albany NY 12224
(518) 474-4819

Counsel for Plaintiffs-Intervenors
Thomas Y. Au
Department of Environmental Resources
Executive House, Room 505, P.O. Box 2357, Harrisburg PA 17120
(717) 787-7060

Counsel for Defendant
Catherine A. Cotter
Land and Natural Reosurces Division
Department of Justice, Washington DC 20530
(202) 633-4438

Counsel for Defendants-Intervenors
Henry V. Nickel
Hunton & Williams
P.O. Box 19230, Washington DC 20036
(202) 955-1561

[14 ELR 20873]

Johnson, J.:

Memorandum Opinion

Plaintiffs bring this action for declaratory and injunctive relief to compel defendant to fulfill mandatory duties imposed upon him by the Clean Air Act. Presently before the Court is the motion of plaintiffs for summary judgment on the first cause of action. Plaintiffs allege that defendant has failed to issue a timely ruling on plaintiffs' petitions regarding violation of interstate air pollution regulations. After consideration of the motion, the memoranda submitted by the parties, and oral argument, the Court grants summary judgment to plaintiffs on the first cause of action and directs defendant to fulfill his statutory obligations set out in the Order accompanying this Opinion.

Background

Pursuant to section 126 of the Clean Air Act, as amended, a state may petition the Environmental Protection Agency (EPA) for a finding that emissions from facilities in another state are causing air pollution within its borders. 42 U.S.C. § 7426(b). In the petition, the state must show that interstate emissions are preventing attainment and maintenance of the national ambient air quality standards (NAAQS) or are interfering with its measures to prevent significant deterioration of air quality and to protect visibility. See 42 U.S.C. § 7410(a)(2)(E). If the petition is granted, the Administrator of the EPA may impose more stringent emission controls on the facility or he may require a responsible facility to cease operations until the violation is corrected. See 42 U.S.C. §§ 7426(c)(2), 7413. Following the receipt of the petition, the statute requires the Administrator to hold a public hearing, propose a decision, and accept public comments before issuing his final public decision. 42 U.S.C. § 7607(d). The statute directs the Administrator to complete these proceedings within sixty days. 42 U.S.C. § 7426(b).

On January 16, 1981, the State of New York filed a section 126 petition with EPA asking the Administrator to find that the emissions of sulfur dioxide and nitrogen in seven midwestern states were causing violations of the NAAQS for particulate matter within its border. The State of New York alleged that the emissions (commonly referred to as acid rain) were interfering with its program for the prevention of significant deterioration of air quality. In October 1981, the State of Maine petitioned EPA for a finding that the same emissions identified by New York were interfering with Maine's program and were degrading visibility in Acadia National Park, an area designated by Congress and EPA for special visibility protection. 42 U.S.C. §§ 7406(2) and 7491; 40 C.F.R. § 81.413. The New York and Maine petitions were consolidated with a prior section 126 petition filed by the Commonwealth of Pennsylvania.^*

On June 18 and 19, 1981, the EPA held joint hearings on the New York and Pennsylvania petitions. Maine waived further public hearing on its petition. The EPA consolidated the three petitions into one administrative proceeding and received submissions from the states until August 1982. At the hearing and thereafter, the EPA received testimony from the State of Vermont and the Commonwealth of Massachusetts which demonstrated that these [14 ELR 20874] states also suffer from violations of NAAQS by reason of sulfur and nitrogen emissions from midwestern states.

On March 20, 1984, the petitioning states, New York and Maine, joined by the States of Vermont, Rhode Island, Connecticut, the Commonwealth of Massachusetts, and private party plaintiffs asserted that the EPA had not carried out its nondiscretionary duties under the interstate air pollution provisions of the Clean Air Act, which require the Administrator to make findings on petitions within sixty days. Plaintiffs object to any extension of time and request the Court to enter an order requiring defendant to issue a final decision within sixty days of the Order.

The defendant admits that section 126 of the Act imposes an unqualified duty to rule upon the petitions of the plaintiff states within sixty days. The defendant, however, maintains that the complex nature of the subject matter and other demands on its resources have prevented it from ruling on the petitions in compliance with the time period fixed by Congress. Defendant argues that the Court should not enter such an order since defendant is currently engaged in rulemaking proceedings on these petitions. Rather, according to defendant, the Court should defer to the agency's judgment of the time necessary to make a finding. In the alternative, defendant requests the Court to use its discretionary equitable powers to extend the time period for compliance. Defendant estimated publication of a final decision by April 1985.

On May 8, 1984, the Court granted the motion of the Commonwealth of Pennsylvania to intervene as plaintiff.On August 8, 1984, the Court granted motion of the State of New Hampshire to intervene as plaintiff. On May 7, 1984, the Court granted the motions of Alabama Power Company and National Coal Association to intervene as defendants. Defendant intervenors take a middle ground position arguing that the Court should hold a hearing in order to develop a realistic schedule to determine the minimum additional time for the Administrator to rule on the section 126 petitions.

Discussion

A court will grant a motion for summary judgment only when it is satisfied that the moving party has met its burden of establishing that there are no genuine issues of material fact. Fed. R. Civ. P. 56(c). In ruling on a motion for summary judgment, "the court must draw all inferences from the record in the light most favorable to the party opposing the motion." Williams v. Washington Metro. Area Transit Authority, 721 F.2d 1412, 1414 (D.D.C. 1983). In the instant case, the Court is convinced that plaintiffs have sustained their burden for the following reasons. First, the applicable statute clearly states, and defendant admits, that he is required to issue a final decision within sixty days after receipt of plaintiffs' petitions. Second, it is undisputed that more than two years have passed since plaintiffs submitted their petitions. Third, defendant concedes that he has not yet ruled on the petitions, and has, therefore, violated the clear terms of the statute. Since there are no material facts in dispute, summary judgment is appropriate. Hence, the only matter for resolution is whether, and, if so, to what extent, this Court can use its equitable powers to extend the time for compliance beyond the time fixed by Congress. Sierra Club v. Gorsuch, 551 F. Supp. 785 [13 ELR 20231] (N.D. Calif. 1982).

In enacting the Clear Air Act amendments in 1977, Congress sought to address what it recognized to be the serious problem of interstate air pollution. Congress determined that air pollution was not merely a local problem and that emissions in one area may be transported and negatively impact upon the air quality in another area. By creating the section 126 petition process, it was the intent of Congress to achieve equity among the states such that downwind states would not become the "dumping ground" for other states' air pollution emissions. Senate Report No. 127, 95th Cong., 1st Sess. 42 (1977).

By providing the sixty day deadline, the legislative history of the Clean Air Act affirmatively demonstrates that Congress sought to ensure prompt regulation and control of air pollution. As stated in the House Committee Report, "[t]he petition process is intended to expedite, not delay, resolution of interstate pollution conflicts." House Report No. 294, 95th Cong., 1st Sess. 331. That the Act directs the Administrator to promulgate regulations within sixty days shows that Congress did not expect defendant to resolve every potential problem before issuing a final decision. See State of Illinois v. Gorsuch, 530 F. Supp. 340, 341 [12 ELR 20101] (D.D.C. 1981).

Despite this clear Congressional intent regarding the expeditious handling of section 126 petitions, defendant asks the Court to use its discretionary powers to craft an equitable remedy tailored to the circumstances of this case. Defendant argues that the technical complexity and public significance of the issues presented by plaintiffs' petitions render it "impossible" for defendant to act on the petitions within sixty days of an order. Defendant contends that courts have relieved the Administrator from a mandatory duty imposed by Congress when the Administrator has demonstrated that it is "impossible" to comply with the terms of the statute.

In support of the "impossibility" exception, defendant relies on the decision of the Court of Appeals in Natural Resources Defense Council v. Train, 510 F.2d 692 [5 ELR 20046, 20696] (D.C. Cir. 1975). In the NRDC case, the court stated:

We perceive two types of constraints which might delay the formulation of adequate guidelines for some few categories of point source beyond the deadline established by the Act . . .Second, EPA may be unable to conduct sufficient evaluation of available control technology to determine which is the best practicable or may confront problems in determining the components of particular industrial discharges. The courts cannot responsibly mandate flat guideline deadlines when the administrator demonstrates that additional time is necessary to insure that the guidelines are rooted in an understanding of the relative merits of available control technologies.

Id. at 712. See Alabama Power Co. v. Costle, 636 F.2d 323, 359 [10 ELR 20001] (D.C. Cir. 1979); State of New York v. Gorsuch, 554 F. Supp. 1060, 1064 [13 ELR 20248] (S.D.N.Y. 1980). However, in evaluating the "impossibility" exception, the court warned:

An equity court can never exclude claims of inability to render absolute performance, but it must scrutinize such claims carefully since officials may seize on a remedy made available for extreme illness and promote it into the daily bread of convenience.

NRDC at 713. In short, the burden of showing impossibility has been deemed to be a heavy one. Sierra Club v. Gorsuch, 551 F. Supp. at 787; Alabama Power Co. v. Costle, 636 F.2d 323, 359 [10 ELR 20001] (D.C. Cir. 1979).

Based upon the evidentiary record, the fact that the Administrator's decision is already two years overdue, and, most importantly, the recent issuance of a proposed determination on September 4, 1984, the Court is not convinced that defendant has satisfied the impossibility test as set forth in NRDC v. Train. See State of New York v. Gorsuch, 554 F. Supp. 1060, 1066, n.4 (S.D.N.Y. 1983). Thus, the Court declines to use its discretionary equitable powers to extend the mandatory statutory deadline. Furthermore, the Court finds that it must effectuate the unequivocal language found in the statutory provisions governing the section 126 petition process. As the court stated in discussing an analagous provision of the Clean Air Act:

. . . it is unseemly for the Administrator to assert that she is vested with the discretion to balance the need for prompt regulation against the need for informed standards. This is a balance that has already been struck by Congress in favor of allowing a 180-day period for promulgation of proposed regulations, along with other definite time limits for further action. If Congress wanted to leave the Administrator with flexibility to implement regulations based on her own judgment of the most desirable time schedule, it obviously knew how to do so. Clearly, however, it did not. It is, therefore, incumbent upon the Administrator to establish promptly some guidelines, however general, for the regulation of inorganic arsenic emissions.

State of New York v. gorsuch at 1064. The Court is of the opinion that it is appropriate to apply the same reasoning to the instant case. In other words, if the defendant desires a certain degree of flexibility in its evaluation of section 126 petitions, the defendant [14 ELR 20875] must look to Congress, not the courts. See Environmental Defense Fund, Inc. v. Gorsuch, 17 ERC 1099, 1102 [12 ELR 20376] (D.D.C. 1982) citing Association of American Railroads v. Costle, 562 F.2d 1310, 1320 [7 ELR 20730] (D.C. Cir. 1977).

By creating the section 126 petition process, Congress sought to establish a means of protecting citizens and the environment from the harmful effects of air pollution originating outside their home state. Defendant's delay in following his statutory mandate has compromised this process. Since the Court finds there are no genuine issues of material fact in dispute, the Court grants summary judgment in favor of plaintiffs on the first cause of action. Defendant is hereby ordered to issue, within sixty days of this Memorandum Opinion and Order, a final decision on plaintiffs' section 126 petitions.

An Order consistent with this Memorandum Opinion will be entered this date.

Order

Upon consideration of the motion of plaintiffs for summary judgment, defendant's response, the memoranda submitted by the parties, and oral argument of counsel, and it appearing that there is no genuine issue as to any material fact and that the defendant has failed to perform his statutory duties under the interstate sections of the Clean Air Act, it is this 5th day of October, 1984,

ORDERED that the plaintiffs' motion for summary judgment be, and hereby is, granted, and the Court hereby declares that the Administrator has failed to perform his nondiscretionary duty under section 126 of the Clean Air Act to rule within sixty (60) days upon the interstate air pollution petitions of the States of New York and Maine and the Commonwealth of Pennsylvania; and it is further

ORDERED that the defendant shall, within sixth (60) days of the date of this Order, issue a decision pursuant to section 126 upon the interstate air pollution petitions of the State of New York and Maine and the Commonwealth of Pennsylvania.

* On December 19, 1980, Pennsylvania filed a similar § 126 petition which added a claim that its ability to attain the national standard for sulfur dioxide, as established in 40 C.F.R. §§ 50.4 and 50.5, was prevented by upwind state emissions.