Sierra Club v. Ruckelshaus

No. C-84-0656 WHO (N.D. Cal. July 25, 1984)

The court holds that the Environmental Protection Agency (EPA) must act on its proposed standards under Clean Air Act § 112 for radionuclides within 90 days. The court first grants the petition of the Idaho Mining Association to intervene in the case. It rules that the Association has the requisite interest in the subject matter of the litigation, even though the substance of the radionuclide rules, which will govern many of the Association's members, is not at issue. The court then rules that plaintiff has standing to bring its claim since it has demonstrated that a number of its members live near facilities that would be governed by the radionuclide standards. The court rejects intervenor's argument that injunctive relief is unnecessary because there is no health emergency, ruling that a district court's sole jurisdiction is to enforce the nondiscretionary duty imposed by Congress, not to consider the need for regulation. The court also rules that neither § 307(d)(6)(A) nor § 117(c) authorizes further delay in EPA action. The former allows EPA to extend a deadline for final promulgation of a rule to develop additional supporting documentation only if the statute allowed less than six months between proposal and promulgation. The latter directs EPA to consult with experts in developing rules, but also to do so within the time prescribed by statute. The court rules that EPA has not made a case for exercise of the court's equitable discretion to fashion a remedy other than injunctive relief. To avoid an injunction, EPA has the burden of proving that compliance with the statute is impossible. EPA has made no such demonstration in this case.The court orders EPA to promulgate final rules within 90 days.

[Other decisions in this action are published at 15 ELR 20082 and 20101. Related decisions are published at 12 ELR 20457 and 13 ELR 20231.]

Counsel for Plaintiff
Roger Beers, Kathryn Burkett Dickson
Beers & Dickson
Suite One, Civic Center
380 Hayes Street, San Francisco CA 94102
(415) 861-1401

Counsel for Defendant
Dean Dunsmore
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2216

[15 ELR 20080]

ORRICK, J.:

Opinion

The Sierra Club, an organization devoted to the preservation of the environment, filed this suit against William D. Ruckelshaus as Administrator of the United States Environmental Protection Agency (the "EPA") to compel the EPA to comly with certain requirements of the federal Clean Air Act, 42 U.S.C. §§ 7401 et seq. Because the sole question in the case is a matter of statutory interpretation and enforcement, plaintiff filed a motion for summary judgment, which is now before the Court. Also before the Court is a motion for intervention filed by the Idaho Mining Assocation pursuant to Federal Rule of Civil Procedure 24(a). For the reasons detailed below, the motion to intervene and plaintiff's motion for summary judgment are both granted.

The dispute now before this Court had its genesis in 1977 when Congress determined that radionuclides posed a potentially serious health hazard.¹ Radionuclides are radioactive particles that may be released into the atmosphere from a wide range of sources, including facilities that use radioactive materials (nuclear power plants, weapons factories, hospitals), and uranium and phosphate mining operations. Finding that no federal agency regulated these emissions, Congress amended the Clean Air Act, instructing the EPA to investigate radionuclides and to determine if these emissions indeed posed a health risk. 42 U.S.C. § 7422.² The Act then required the EPA, if it determined that radionuclides posed a health risk, to issue emission standards on a timetable fixed by statute. See 42 U.S.C. §§ 7412, 7422.

After investigation, the EPA in November 1979 issued its determination that radionuclides increase the risk of cancer, genetic damage, and death, and added radionuclides to the list of "hazardous pollutants" regulated pursuant to the Clean Air Act, 42 U.S.C. § 7412.

Having made that determination, the EPA was required by statute to issue proposed regulations, which were to be followed by final regulations:

Within 180 days after the inclusion of any air pollutant in such list, the Administrator shall publish proposed regulations establishing emission standards for such pollutant together with a notice of a public hearing within thirty days. Not later than 180 days after such publication [of the proposed standards], the Administrator shall prescribe an emission standard for such pollutant, unless he finds, on the basis of information presented at such hearings, that such pollutant clearly is not a hazardous pollutant. . . ."

42 U.S.C. § 7412(b)(1)(B).

The EPA did not issue the proposed regulations within the 180 days prescribed by statute and in 1982 the Sierra Club sued the EPA in Sierra Club v. Gorsuch, 551 F. Supp. 785 [13 ELR 20231] (N.D. Cal. 1982) (Sweigert, J.). On plaintiff's motion for summary judgment in that case, the court ruled that the EPA had failed "to perform its mandatory statutory duty to issue proposed radionuclide emission standards within 180 days of listing them as a hazardous air pollutant." Id. at 787.

By way of designing an appropriate remedy, Judge Sweigert at first offered to allow the EPA to develop a compliance schedule and to attempt to agree with plaintiff as to that schedule. The EPA, in response, offered to issue proposed regulations by 1989, more than nine years after the mandatory statutory deadline. Judge Sweigert, finding that Congress had set the 180-day limit for the prescise purpose of rapidly implementing clean air standards, rejected the EPA's proposal and ordered it to issue proposed regulations for radionuclides within 180 days. See id. at 789. The EPA finally issued proposed standards for radionuclide emissions on April 6, 1983, approximately three years after the deadline set by statute.

The next stage in the Clean Air Act's regulatory process is the issuance of final regulations governing emissions of the hazardous air pollutant. Section 7412(b)(1)(B), quoted above, mandates that the EPA will either issue the final emission standards, or make a determination that radionuclides do not pose a health risk, within 180 days after issuance of the proposed regulations. The final regulations for radionuclide emissions were, therefore, due on October 3, 1983; to date the EPA has not issued final regulations.

The Sierra Club has again sued in the case now before this Court for a judgment ordering the EPA to comply with the mandatory requirement of 42 U.S.C. § 7412.

The proposed intervenor in this lawsuit, Idaho Mining Association ("the Association"), represents numerous companies that mine more than 50 percent of the elemental phosphorus produced in the United States. Radionuclides are emitted when elemental phosphorus is mined and proposed.

Intervention in a lawsuit is permitted of right upon the timely application of anyone with an interest in the subject matter of the litigation, who is so situated that disposition of the case may "as a [15 ELR 20081] practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." F.R. Civ. P. 24(a).³

Because Association members mine phosphorus, they will be directly affected by final radionuclide emission standards.⁴ Although the Association is arguably more concerned with the content of the regulations, a matter not before this Court, than with when they are issued and would have the opportunity to litigate the merits of the regulations at a later date,⁵ such an after-the-fact remedy:

may, "as a practical matter," afford much less protection than the opportunity to participate in . . . proceedings that seek to ensure sustainable regulations in the first place, with no need for judicial review . . . . [I]t may [also] be that review might be had only after final effectiveness, during a period when appellants may be subject to compliance and enforcement [of the regulations].

Natural Resources Defense Council v. Costle, 561 F.2d 904, 909 [7 ELR 20547] (D.C. Cir. 1977). Thus, the Association's interests might be impaired if intervention in this action were not allowed.

Finally, although both the Association and the EPA oppose the motion for summary judgment, the ultimate interests of the mining Association clearly differ from those of the EPA.⁶ See id. at 912 (agency's interest in content of regulation will differ from the interest of the one governed by those regulations). Accordingly, the motion for intervention by the Association is granted.

III

In its brief opposing summary judgment, the EPA admits that "it has not made the required determinations within the time established by 42 U.S.C. § 7412(b) and that is it under a statutory obligation to make these determinations." Def. Br. at 2:10-13. Nonetheless, the EPA and the Association oppose summary judgment. The EPA argues, first, that the Sierra Club has no standing and, second, that this Court should exercise its discretionary power to refuse the remedy sought. The Association argues that issuance of these regulations is not, in fact, a matter of great urgency and that certain procedural steps must be completed by the EPA before final standards are promulgated.

In enacting the Clean Air Act, Congress specifically provided for citizen suits to enforce the Act. Section 7604(a) provides in pertinent part that:

any person may commence a civil action on his own behalf —

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary

An association has standing to sue if it or its members are in a position to suffer actual or threatened injury. See, e.g. Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464 (1982).

Although the government raised no objection to the Sierra Club's standing to sue in the prior suit before Judge Sweigert, it here argues that plaintiff has failed to prove "its membership and alleged injury or threatened injury thereto." See Def. Br. at 6.

In response to the standing argument the Sierra Club has offered the declaration of Eugene Coan, Assistant Conservation Director of the Sierra Club, demonstrating that members of the Sierra Club live in close proximity to specific facilities that emit radionuclides.⁷ See Plf. Reply Br. at 4 and Declaration of Coan. That declaration more than adequately illustrates the threat of injury to Sierra Club members and establishes plaintiffs' standing to sue.

The Association's first argument against summary judgment is that "the fixing of an early date for issuing final regulations is not urgent." Assoc. Br. at 7. Taking as an example the EPA's hypothetical that radionuclide emissions from a particular phosphorus plant pose only one potential cancer death in 100 years of plant operation, the Association urges that there is no emergency and that this Court should not order the EPA to issue final regulations pending further EPA review of the health risks caused by radionuclides.

Whatever the scientific merits of the Association's position may be, the "emergency" factor is irrelevant to this lawsuit. This Court has no jurisdiction to evaluate the health risks posed by radionuclides or to review the adequacy or even the need for regulation. Congress divided jurisdiction to review actions pursuant to the Clean Air Act between the district and appellate courts. The district court may enforce nondiscretionary agency actions, 42 U.S.C. § 7604(a); only the Court of Appeals for the District of Columbia may review the merits of regulations, the risks associated with the pollutant, or the adequacy of the data before the EPA when it promulgates regulations pursuant to the Act, 42 U.S.C. § 7607(b)(1). The need for regulation of radionuclide emissions is simply not a matter that this Court has the power to determine.

The Association also argues, joined by the EPA, that the Act sets forth several "nondiscretionary" procedural requirements that the EPA must follow before issuing a final rule. Particularly, it is contended that the Administrator must make a determination that the pollutant poses a "significant health risk" by preparing a "health assessment document"; that the health assessment document must be reviewed by certain advisory agencies; and that Congressionally established advisory committees must be consulted.

In making this argument, the Association and the EPA rely on certain sections of the Clean Air Act that, when read in context, do not at all support their position. First, they point to the rule-making provision of the Act, 42 U.S.C. § 7607. Subsection (d)(6)(A) provides that a promulgated rule "shall be accompanied by" certain supporting documents, which the EPA and the Association claim have not yet been prepared. Subsection (d)(10) of § 7607, however, provides that when the statutory deadline for promulgating a rule is less than six months after the date of proposal, the Administrator can extend the deadline for issuance of the final rule by another six months.⁸ Where, as here, the statutory deadline for promulgating the final rule is six months or more after the proposals, no such extension is provided, whether or not the supporting materials have been prepared.

The second section relied on by the Association and the EPA, 42 U.S.C. § 7417(c), also does not support their position. That section provides that before issuing emission standards, the EPA administrator "shall, to the maximum extent practicable within the time provided, consult with appropriate advisory committees, independent experts, and Federal departments and agencies." Id. Thus, while the statute requires consultation to "the maximum extent possible," it specifically provides that such activities must be carried out within the statutory deadlines for issuing the regulations.

The primary argument made by the EPA and joined by the Association is that even though the EPA has violated the Act, this [15 ELR 20082] Court has the discretion to fashion any appropriate remedy and is not required to order immediate compliance.⁹

The remedy requested by plaintiff, a mandatory injunction ordering the EPA Administrator to act, is within the jurisdiction of this Court as established by the Act: "The district courts shall have jurisdiction . . . to order the Administrator to perform such [a nondiscretionary . . . act or duty . . . ." 42 U.S.C. § 7604(a)].

The EPA contends that the Court's jurisdiction to order compliance with a statutory duty does not automatically divest the Court of its usual discretion in fashioning appropriate remedies. This argument, while correct, ultimately fails, because the EPA has not carried its burden of proving that compliance with the statutory deadline is impossible.

The principle that the district court has discretion to fashion remedies other than injunctive relief when the EPA administrator fails to perform a nondiscretionary act is well-supported. In Weinberger v. Carlos Romero-Barcelo, 102 S. Ct. 1798 [12 ELR 20538] (1982), for example, the Supreme Court held that "[t]he grant of jurisdiction to insure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of the law." Id. at 1803.

The Court of Appeals for the District of Columbia Circuit has given some instruction on when a court should withhold injunctive relief to compel performance of a statutory duty. In Natural Resources Defense Council v. Train, 510 F.2d 692 [5 ELR 20046, 20696] (D.C. Cir. 1975), the court affirmed the lower court's imposition of a timetable for EPA compliance with the regulations, but noted:

We perceive two types of constraints which might delay the formulation of adequate guidelines . . . beyond the deadline established by the Act. First, it is possible that budgetary commitments and manpower demands required to complete the guidelines . . . are beyond the agency's capacity or would unduly jeopardize the implementation of other essential programs. Second, the EPA may be unable to conduct sufficient evaluation [of factors relevant to issuing appropriate regulations] . . . . The courts cannot responsibly mandate flat guideline deadlines when the Administrator demonstates 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 (emphasis added). The court concluded that the "sound discretion of an equity court does not embrace enforcement . . . of a party's duty to comply with an order that calls on him 'to do an impossibility.'" Id. at 713, citing Maggio v. Zeitz, 333 U.S. 56 (1948).

The EPA attempts to shift the burden to plaintiff to show that the EPA can in fact comply with the deadline. See Def. Br. at 15. Cases following Train, however, clearly establish that "the agency [bears] . . . a heavy burden to demonstrate the existence of an impossibility" of complying with the statute. Alabama Power Co. v. Costle, 636 F.2d 323, 259 [10 ELR 20001] (D.C. Cir. 1980) (emphasis added). The agency has not met that burden of proof.

The EPA has made some attempt to prove that compliance is "impossible" by submitting the declaration of Glen Sjoblom, Director of the Office of Radiation Programs at the EPA. He asserts that further study and analysis of materials before the EPA requires "several months" more work before final rules can be issued.¹⁰ Some particulars are given, but the thrust of the declaration is really no more than "further study always makes everything better." As the D.C. Circuit has pointed out, a district court must "separate justifications grounded in the purposes of the Act from footdragging efforts of a delinquent agency." Natural Resources Defense Council v. Train, supra, 510 F.2d at 713.

Judge Sweigert rejected the EPA's earlier claim that issuance of proposed radionuclide regulations was impossible, relying on Congress' purpose in imposing deadlines for regulation issuance, as the Train court instructed. "Congress . . . expressly stated that one of the purposes of Subchapter I of the Act (of which Section 7412 is a part) was to 'accelerate a national research and development program to achieve the prevention and control of air pollution.'" 42 U.S.C. § 7401(b)(2). Sierra Club v. Gorsuch, supra, 551 F. Supp. at 787.¹¹ He then concluded

Upon the evidentiary record before us, considered against the time period already passed, the information regarding radionuclides already before the EPA, and the Congressional purpose beyond [sic] Section 7412, this Court finds and concludes that the EPA has not met its heavy burden of demonstrating that it would be infeasible or impossible to issue the proposed regulations within the 180 day schedule proposed by plaintiffs . . . .

Id. at 789.

The EPA has not demonstrated that timely issuance of final regulations covering radionuclide emissions is impossible only that it is always easier to do something with more rather than less time. Considering, as Judge Sweigert did, the length of time between Congress' designation in 1977 of radionuclides as a hazardous pollutant and the EPA's issuance of proposed regulations under court order in 1983, and its further delinquency in making final those rules, no jurisdiction appears for allowing more "footdragging" by the EPA. "To accept EPA's proposal for further, indefinite and virtually open-end extension of the time for compliance, without a more convincing demonstration of evident impossibility, would be to, in effect, repeal the Congressional mandate." Id. at 789.

Accordingly

IT IS HEREBY ORDERED that

1. Plaintiff's motion for summary judgment is granted.

2. The Administrator of the EPA will issue final standards for radionuclide emissions under Section 112 of the Clean Air Act, 42 U.S.C. § 7412, within ninety (90) days from the date of this Opinion and Order.

1. The House Report accompanying the bill that ultimately became the Clean Air Act amendments of 1977 specifically addressed Congress' concern with radionuclide emissions:

It is clear that exposure to radioactive materials can cause serious harm to health, including cancer, genetic damage, and birth deformities. Materials that are radioactive may remain so for thousands of years. This longevity poses a special problem for living organisms. Furthermore, exposures to radioactivity are cumulative, that is, each new or additional exposure increases the risk of serious illness.

H.R. REP. No. 95-294, 95th Cong., 1st Sess. 36-37, reprinted in (1977) U.S. CODE CONG. & AD. NEWS 1114-15.

2. 42 U.S.C. § 7422(a) provides in pertinent part:

Not later than one year after August 7, 1977 (two years for radioactive pollutants) and after notice and opportunity for public hearing, the Administrator [of the EPA] shall review all available relevant information and determine whether or not emissions of radioactive pollutants . . . into the ambient air will cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health.

3. The parties have not opposed the motion of Idaho Mining Association to intervene.

4. Regulated industries are required to comply with final emission regulations within ninety days of their issuance by the EPA. 42 U.S.C. § 7412(c)(1)(B).

5. The merits of regulations promulgated under the Clean Air Act may be litigated before the Court of Appeals for the District of Columbia Circuit. 42 U.S.C. § 7607(b)(1); see Section IIIB infra.

6. The "adequacy of representation" prong of the intervention test carries only a minimal burden of showing that the intervenor's interests in the litigation "may be" inadequately represented. See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10 (1972).

7. Paragraph 6 of Mr. Coan's declaration, for example, states that approximately 1,092 members of the Sierra Club live near Department of Energy facilities that emit radionuclides in Columbus, Ohio.

8. 42 U.S.C. § 7607(d)(10) provides:

Each statutory deadline for promulgation of rules to which this subsection applies which requires promulgationless than six months after date of proposal may be extended to not more than six months after date of proposal by the Administrator upon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of this subsection.

9. The EPA tries to characterize its argument concerning the appropriate remedy for its breach of a mandatory statutory duty as a material question of fact, making summary judgment inappropriate when there is "no genuine issue as to any material fact . . . ." F.R. Civ. P. 56(c). The only factual issue in this case is whether or not the EPA issued final regulations for radionuclide emissions within 180 days of the issuance of proposed regulations. The EPA admits that it did not. The argument made by the Agency and the Association goes to the purely equitable issue of how this Court should exercise its power as a chancellor in fashioning a remedy for the EPA's clear violation of the law; this cannot be characterized as a factual dispute.

10. See Declaration of Sjoblom P12. The Court notes that Mr. Sjoblom's declaration is dated May 10, 1984. Two months have passed without any indication of progress on the issuance of radionuclide regulations by the EPA.

11. The purpose of the Clean Air Act is set forth in 42 U.S.C. § 11(b), which provides in pertinent part:

The purposes of this subchapter are —

(2) to initiate and accelerate a national research and development program to achieve the prevention and control of air pollution.

(Emphasis added.)