Wisconsin v. Thomas

No. 87-C-395 (E.D. Wis. January 18, 1989)

The court holds that the Environmental Protection Agency (EPA) has a nondiscretionary duty under the Clean Air Act to formulate a federal implementation plan (FIP) to control ozone pollution in the Chicago area. Although EPA acknowledges its duty, the court orders EPA to issue the FIP within 14 months.

[The complaint filed in this case is digested at ELR PEND. LIT. 65951.]

Counsel for Plaintiff
Thomas L. Dorsch, Ass't Attorney General
State Capitol Bldg., P.O. Box 7857, Madison WI 53702
(608) 266-1221

Counsel for Defendant
Gary S. Guzy, David P. Novello
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

[19 ELR 20964]

Evans, J.:

Order

Occupying a significant chunk of table space in my chambers is a stack of papers about five inches high. They relate to the State of Wisconsin's motion for partial summary judgment and defendant Lee M. Thomas' motion to dismiss four claims in this suit. The papers contain discussions of the difficulties of controlling air pollution, of an elaborate statutory scheme, of arcane-sounding documents called SIPS and FIPS. Amazingly enough, however, distilling itself from all that is the only real issue left for decision: Should Lee M. Thomas, as administrator of the United States Environmental Protection Agency, be ordered to formulate a federal plan for ozone control for the Chicago area within fourteen months, within a longer period, or not at all?

A brief review. The State of Wisconsin filed this action in April 1987 to force the EPA to do something about ozone pollution in the Chicago area. The ozone, everyone agrees, drifts north and affects the quality of the air in Kenosha and Racine Counties in Wisconsin. There is disagreement about whether the effects are felt further north in Milwaukee County. The suit was brought pursuant to the citizen suit provisions of the Clean Air Act, 42 U.S.C. § 7604, and alternatively under the Administrative Procedure Act, 5 U.S.C. § 702.

The complaint has six claims; three claims against each of two states: Illinois and Indiana. The first and fourth claims relate to the EPA's alleged failure to perform a nondiscretionary duty to approve or disapprove the state implementation plans (SIPS) which Illinois and Indiana submitted for the control of ozone in the Chicago metropolitan area. The second and fifth claims allege that the EPA has failed to promulgate federal implementation plans (FIPS) for the same area. These four claims are the subject of the motion for partial summary judgment and the motion to dismiss. The third and sixth claims relate to a moratorium on the construction of major sources of ozone in the area.

The Clean Air Act, 42 U.S.C. § 7604 et seq., is an elaborate scheme of obligations and timetables for both federal and state agencies. The EPA was charged with compiling a list of pollutants and establishing a national ambient air quality standard. Then the states were to design plans, the SIPS, by which to achieve the standards. The SIPS were to be submitted to the EPA for approval. If a state failed to submit a plan, or if the state plan was disapproved, the EPA was to promulgate a federal plan. At first Congress intended that the SIPS would become effective by 1972 and that the air quality standards would be met by 1975. It became apparent that the timetable would not be met, and in 1977 the act was amended and the states were to meet their air quality goals not later than 1982, with the possibility of extensions of time for some areas until December 31, 1987.

When this suit was filed, both Illinois and Indiana had submitted SIPS to the EPA, but the SIPS had not been approved or disapproved. The state of Wisconsin wanted to force the EPA to take action or, on the theory that inaction is disapproval, to formulate federal plans (FIPS).

As the case wore on, some progress was made, and finally on September 30, 1988, the SIPS for Illinois and Indiana were disapproved. At this point, both Wisconsin and EPA agree that the EPA is now under an obligation to formulate a federal plan. The issue is whether it can or should be ordered to do that and, if so, within what time frame.

Title 42, United States Code, Section 7604(a), grants the district courts jurisdiction to order the administrator to perform nondiscretionary acts or duties. Once a state plan is disapproved, the administrator has a nondiscretionary duty to formulate a federal plan for ozone control. 42 U.S.C. § 7410(c)(1)(B).

At this point the EPA acknowledges its duty. However, the history of the ozone plans for the Chicago area is best characterized by delay. The time periods set forth by Congress have not been met. As have other courts in similar circumstances, I find that an order requiring the administrator to perform his statutory task is appropriate. See Association of American Railroads v. Costle, 562 F.2d 1310, 1321-22 [7 ELR 20730] (D.C. Cir. 1977); Sierra Club v. E.P.A., 719 F.2d 436, 470 [13 ELR 21001] (D.C. Cir. 1983); cert. denied, 468 U.S. 1204 (1984); Sierra Club v. Gorsuch, 551 F. Supp. 785 [13 ELR 20231] (N.D. Cal. 1982); Sierra Club v. Ruckelshaus, 602 F. Supp. 892, 899-900 [15 ELR 20080] (N.D. Cal. 1984); State v. Gorsuch, 554 F. Supp. 1060 (S.D.N.Y. 1983).

As to the timing, the state of Wisconsin is content with my "restarting" the clock and giving the EPA 14 months in which to complete its task. 42 U.S.C. § 7607(d)(10). That is the longest period allowable under any reading of the statutes. The EPA wants longer, claiming that preliminary studies cannot be completed in less than 16 months. Wisconsin disputes the claim.

[19 ELR 20965]

As a matter of law, if the lock is "restarted," the EPA has, at most under the act, 14 months in which to formulate its FIP. On the basis of the current record, I will order that the EPA complete its task within 14 months of the date of this order.

The current motions then are resolved as follows: The motion to dismiss claims one and three, requesting an order requiring the EPA to approve or disapprove the state SIP's, is GRANTED. The claims are moot; disapproval has been announced. The motion for partial summary judgment is GRANTED as to claims two and five; the administrator is required to promulgate federal implementation plans for ozone control within 14 months.

A conference call to discuss further proceedings that might be necessary here will be held on March 7, 1989, at 8:45 a.m.

SO ORDERED at Milwaukee, Wisconsin this 18th day of January, 1989.