Environmental Defense Fund v. Browner

No. C92-1636 TEH (N.D. Cal. August 19, 1994)

The court holds that it has jurisdiction over environmental groups' claim that the U.S. Environmental Protection Agency (EPA) failed to perform a nondiscretionary duty under § 176(c) of the Clean Air Act (CAA) when it refused to issue final regulations governing conformity requirements for transportation projects in attainment areas. On November 24 and 30, 1993, EPA issued rules setting forth conformity criteria and procedures for transportation plans and projects and other federally supported projects in nonattainment and maintenance areas. Believing it to be a matter within its discretion, EPA decided not to issue a rule governing attainment areas. The court holds that jurisdiction lies in the district court rather than the U.S. Court of Appeals for the D.C. Circuit, because the groups' claim is more accurately characterized as a claim that EPA has failed to perform a nondiscretionary duty than as a challenge to a final agency action or a national regulation. The groups are not challenging the adequacy, merits, or scope of EPA's conformity rules for maintenance or nonattainment areas. Rather, the groups assert that EPA has failed to promulgate any rule on a discrete and separate matter — conformity for attainment areas — despite a nondiscretionary duty to do so under the statute. That EPA may issue one subset of rules required by a statute does not deprive the district court of jurisdiction to compel the Agency to issue an additional subset of rules, concerning a discrete area, if the statute also mandates the additional subset by a specified deadline. Moreover, CAA § 176(c)(4) contains a special provision for suit in the district court to compel EPA to promulgate conformity criteria and procedures. Although the language refers to CAA § 304, which is the Act's basic jurisdictional provision for district courts, it is significant that Congress specifically authorized district courts to address claims that EPA has not satisfied its duty to issue conformity criteria under § 176(c)(4). Further, EPA's argument that the groups are really seeking review of a final agency action does not withstand close scrutiny. The final action that EPA relies on to support appellate jurisdiction is its decision that the CAA should not be interpreted to impose a mandatory duty to issue conformity criteria for attainment areas. If this constitutes final action for jurisdictional purposes, then EPA could transform any claim that it has failed to perform a nondiscretionary duty into an appellate issue simply by making a "final decision" that it has interpreted the statute as not imposing such a duty. Such a rule would substantially undermine the jurisdiction that Congress bestowed on district courts in § 304. The court holds that EPA's reliance on Sierra Club v. U.S. Environmental Protection Agency, 23 ELR 20827 (D.C. Cir. 1993), is misplaced. That decision did not, as EPA claims, enunciate any flat rule that jurisdiction always lies in the D.C. Circuit except when EPA concedes that a rule it has issued does not satisfy the statutory mandate. If anything, Sierra Club supports the groups' position, because it confirms that although EPA may issue a final rule addressing one discrete sub-area, this final action does not automatically deprive the district court of jurisdiction to compel EPA to undertake additional rulemaking addressing another discrete, but related sub-area, where EPA has a nondiscretionary duty to do so. The court also notes that if a court were to find that EPA has a nondiscretionary duty to engage in additional rulemaking regarding conformity criteria for attainment areas, then it would be required to fashion and monitor a remedy, which normally entails a number of factual issues. Notably, district courts were given jurisdiction over claims alleging the failure to undertake a nondiscretionary action, at least in part, because district courts are often better equipped to address factual issues and to monitor compliance with deadlines. In a footnote, the court rejects as premature the groups' request that the court require EPA to begin preparations for additional rulemaking pending the outcome of the jurisdiction issue. The court finds no basis for ordering such preparatory actions absent any finding that EPA is under a nondiscretionary duty to engage in additional rulemaking. The court orders EPA to respond to the groups' motion for partial summary judgment and/or motion for enforcement of a prior court order pursuant to a specified schedule.

Counsel not available at this printing.

[25 ELR 20598]

Order

Henderson, J.:

This matter came before the court on Wednesday, August 10, 1994, at 10:00 a.m. for hearing on Plaintiffs' Motion for Partial Summary Judgment and/or Motion for Enforcement of Prior Court Order. Defendant Environmental Protection Agency ("EPA") opposed the motion on jurisdictional grounds.

Having carefully considered the written and oral arguments of counsel, and the record herein, the court finds, for the reasons set forth below, that jurisdiction over plaintiffs' motion properly lies in the district court. Accordingly, EPA is directed to respond to plaintiffs' motion on the merits pursuant to the schedule provided at the close of this order.

Background

Section 176(c) of the Clean Air Act prohibits the federal government and metropolitan planning organizations from approving projects and activities that are not in "conformity" with a state's implementation plan ("SIP") for achieving or maintaining federal air quality standards. 42 U.S.C. § 7506(c). For years, this section — referred to as "the conformity requirement" — received little attention from agencies and regulators.¹

In response, Congress strengthened the conformity requirement when it amended the Clean Air Act in 1990. First, Congress specified that "conformity" means that a plan or project must conform to a SIP's purpose of eliminating or reducing violations of federal air quality standards, and achieving expeditious attainment of such standards. In addition, a "conforming project" must not cause or contribute to any new violation, increase the frequency or severity of any violation or delay attainment. Id. at § 7506(c)(1). Second, Congress required EPA to issue, by November 15, 1991, new rules establishing specific criteria and procedures that must be used in "determining conformity." 42 U.S.C. § 7506(c)(4)(A). Id.

When EPA failed to issue any conformity rules by the statutory deadline, the Environmental Defense Fund ("EDF"), the Sierra Club, and Carla Baird (hereafter "plaintiffs") filed this citizens' suit under 42 U.S.C. § 7604(a)(2) to compel EPA to issue the required rules. After settlement discussions, the parties entered into a stipulated consent decree that required EPA to issue final conformity criteria and procedures by October 15, 1993. On EPA's motion, we extended the deadline 30 days to November 15, 1993. On November 24 and November 30, 1993, EPA published (1) a conformity rule for transportation plans and projects and (2) a conformity rule for other federally funded or supported projects.

These final rules provide criteria and procedures for determining conformity in areas that have been designated as "nonattainment" or "maintenance" areas,² however, EPA expressly declined to issue any rule on a discrete but related subject: criteria and procedures for areas that are designated "attainment." EPA explains that it decided to forego any regulation for attainment areas because, under its interpretation of the Clean Air Act, it has no nondiscretionary duty to do so; rather, EPA views this as a matter left to EPA's discretion. See 58 Fed. Reg. 62190 ("EPA continues to believe that the statute is ambiguous, and that it provides discretionary authority to [issue conformity rules for attainment areas]" (emphasis added)). See also, 58 Fed. Reg. 63214. EPA further states that it intends to issue "in the near future" a supplemental notice of proposed rulemaking to deal with conformity requirements for transportation related projects in a limited category of attainment areas. Id.³

Plaintiffs claim that the statute is not ambiguous and that EPA has a clear, nondiscretionary duty to promulgate, by November 15, 1991, [25 ELR 20599] final transportation and general conformity rules that set forth criteria and procedures for determining conformity in attainment areas, as well as nonattainment and maintenance areas. Therefore, plaintiffs filed the instant motion to compel EPA to issue the "missing" attainment area rules. Plaintiffs have also filed a petition in the Court of Appeals for the District of Columbia contending that the final conformity rules for nonattainment and maintenance areas are inadequate.⁴

EPA's opposition memorandum does not respond to plaintiffs' contention that EPA has a nondiscretionary duty to issue conformity rules for attainment areas. Instead, it raises a threshold jurisdictional issue, arguing that plaintiffs' contention can only be addressed by the Court of Appeals for the District of Columbia. Accordingly, we address only the jurisdictional question at this time.

Discussion

1. Overview of Jurisdictional Scheme

The Clean Air Act provides for a bifurcated system of judicial review. Federal district courts have jurisdiction over allegations that EPA "has failed to perform a nondiscretionary duty." 42 U.S.C. § 7604(a)(2). This includes claims that EPA has failed to issue required rules or regulations by a specified deadline. Sierra Club v. Ruckelshaus, 602 F. Supp. 892 [15 ELR 20080] (N.D. Cal. 1984).

The federal court of appeals for the District of Columbia, on the other hand, has jurisdiction to review, inter alia, challenges to national air quality standards, final agency action, and nationally applicable regulations. 42 U.S.C. § 7607(b)(1); Farmers Union Cent. Exchange, Inc. v. Thomas, 881 F.2d 757, 760 [20 ELR 20013] (9th Cir. 1989); Abramowitz v. U.S. EPA, 832 F.2d 1071, 1075 [18 ELR 20151] (9th Cir. 1987) (when EPA has "clearly taken final action, the court of appeals has jurisdiction over challenges to that action"); Bethlehem Steel Corp. v. U.S. EPA, 782 F.2d 645 [16 ELR 20268] (7th Cir. 1986).⁵

As the cases and commentators have recognized, there are some matters that could arguably fall within the jurisdiction of both the appellate and district courts. See Abramowitz, 832 F.2d at 1075 ("These [jurisdictional] provisions are not exclusive . . . 'like rings linked together . . . these jurisdictional circles may spill over into one another.'") (quoting Rodgers, Environmental Law: Air and Water, § 3.3 at 197). Unfortunately, this "spill over" effect has caused confusion regarding the interplay between district court and appellate jurisdiction, and spawned considerable case law, not all of which is readily reconcilable. See, e.g., State of Maine v. Thomas, 874 F.2d 883, 884-85 [19 ELR 21046] (1st Cir. 1989) ("this jurisdictional dichotomy has created a confused class of circumforaneous litigants, wandering perplexedly from forum to forum in search of remediation").

2. Analysis

EPA argues that it has now issued its "final rules" (and has thus taken "final action") regarding conformity. Therefore, any complaint about those rules — including the complaint that they do not go far enough because they do not cover attainment areas — is a complaint seeking review of "final agency action" or "a national regulation." If we adopt this characterization, then jurisdiction belongs in the D.C. Court of Appeals.

Plaintiffs, on the other hand, argue that they are not seeking review in this court of any agency "action" or regulation that was actually issued. They are complaining that EPA has failed to issue any regulation on a certain matter, despite its nondiscretionary obligation to do so under the statute. As such, plaintiffs characterize this as a claim that EPA has "failed to perform a nondiscretionary duty." If we accept this depiction, then jurisdiction is proper in the district court.

At first glance, both of the above descriptions may appear equally plausible. Upon closer review, however, we conclude that plaintiffs' motion is more accurately characterized as a claim that EPA has failed to perform a nondiscretionary duty than a challenge to a final agency action or a national regulation. Therefore, jurisdiction lies in the district court. We reach this conclusion based on the following reasons.

First, plaintiffs are not, by this motion, challenging the adequacy, merits, or scope of EPA's conformity rules for maintenance or nonattainment areas. In other words, they are not seeking review of any national regulation that was actually issued. As both parties agree, any such challenges fall under the domain of the Court of Appeals of the District of Columbia. Sierra Club, 602 F. Supp. at 895 (courts of appeal review "merits" of regulations). Rather, what plaintiffs assert is that EPA has failed to promulgate any rule on a discrete and separate matter — conformity for attainment areas — despite a nondiscretionary duty to do so under the statute.

Where EPA fails to issue any rule on a discrete subject or area, and contends it has no duty to [do] so, jurisdiction over claims to compel issuance of such a rule properly lies in the district court — even though the agency may have already issued rules on a related matter. See, e.g., Bethlehem Steel Corp. v. U.S. EPA, 782 F.2d at 656-57 (7th Cir. 1986) (district court had jurisdiction over claim that EPA had failed to undertake additional rulemaking required by the statute); Commonwealth of Pennsylvania v. U.S. EPA, 618 F.2d 991, 993-94, 995-96 (3d Cir. 1980) (rejecting argument that district court lacked jurisdiction because EPA had affirmatively decided, as a part of rulemaking proceedings, not to issue a rule concerning a certain type of point source, although it issued rules concerning other types of point sources); reh'g granted in part, 618 F.2d 997 (3d Cir. 1980).⁶

As the court observed in Commonwealth of Penn., 618 F.2d at 996, "an allegation of inadequacy of a set of regulations is quite different from an allegation that a needed regulation [is] nonexistent." In short, the fact that EPA may issue one subset of rules required by a statute, does not deprive a district court of jurisdiction to compel the agency to issue an additional subset of rules, concerning a discrete area, if the additional subset is also mandated by the statute by a specified deadline.

Second, the provision of the Clean Air Act that requires EPA to issue conformity criteria and procedures by November 15, 1991, includes a special provision for suit in the district court:

A suit may be brought against the Administrator and the Secretary of Transportation under [42 U.S.C. § [7604 of this title to compel promulgation of such [conformity] criteria and procedures and the federal district court shall have jurisdiction to order such promulgation.

42 U.S.C. § 7506(c)(4) (emphasis added). Although this language refers back to section 7604 — the basic jurisdictional provision for district courts discussed above — it is significant that Congress made a special point of authorizing district courts to address claims that EPA has not satisfied its duty to issue conformity criteria under § 7604 as an action seeking the performance of a nondiscretionary duty. Notably, EPA failed to address this jurisdictional provision in any meaningful way.

Third, EPA's argument that plaintiffs are really seeking review of a "final agency action" does not withstand close scrutiny. The "final action" that EPA relies on to support appellate jurisdiction is its decision that the Clean Air Act should not be interpreted to impose a mandatory duty to issue conformity criteria for attainment areas. However, if this constitutes "final action" for jurisdictional purposes, then EPA could transform any claim that it has failed to perform a nondiscretionary duty into an appellate issue simply by making a "final decision" that it has interpreted the statute as not imposing such a duty. Such a rule would substantially undermine the jurisdiction bestowed on district courts by Congress in section 7604.

EPA's reliance on Sierra Club v. U.S. EPA, 992 F.2d 337 [23 ELR 20827] (D.C. Cir. 1993), is also misplaced.⁷ In that case, EPA was required to promulgate revisions to criteria applicable to a range of facilities that receive hazardous wastes, including municipal and nonmunicipal facilities. Nonetheless, EPA only issued a rule governing [25 ELR 20600] municipal facilities. EPA conceded that the statute required it to promulgate revisions for nonmunicipal facilities but claimed it did not yet have sufficient information regarding these facilities to undertake rulemaking. A rule for nonmunicipal facilities, EPA stated, would be issued later, once the necessary information was acquired. Id. at 345, 347.

When EPA failed to issue any additional rules, the Sierra Club sought relief in the D.C. Court of Appeals, which held that jurisdiction belonged in the district court because there had been no "final agency action" regarding nonmunicipal facilities. Id. at 347. The court emphasized that EPA acknowledged that the statute required the missing rules (although EPA asserted the right to delay their issuance); accordingly, the rules that EPA had issued did not represent "the final regulation as to nonmunicipal facilities." Id.

EPA argues that this case stands for the proposition that once EPA has taken the "action" of issuing some final rule, jurisdiction lies in the Court of Appeals except if the Agency "acknowledges" that the rule "does not satisfy the statutory mandate," in which case jurisdiction lies in the district court. EPA Oppo. at 9. Since, in this case, EPA does not admit that its conformity rules do not completely satisfy the statutory mandate, this "exception" does not apply and jurisdiction lies in the Court of Appeals.

EPA overstates the holding of this case. The court did not enunciate any flat rule that jurisdiction always lies in the Court of Appeals "except" when EPA concedes that its rule does not satisfy the statutory mandate. Rather, the court simply concluded that there was no final agency action in that case given EPA's concession that it had not yet satisfied the statutory mandate. The court did not state, however, that a district court could exercise jurisdiction only when EPA makes such a concession. Again, such an approach would make jurisdiction turn on EPA's interpretation of the statute, rather than the nature of the claim. We doubt Congress intended such a result. CF. Abramowitz, 832 F.2d at 1075 ("[w]e do not believe the [Environmental Protection] Agency's own designation of its action determines the jurisdictional issue . . . if is the effect of the action and not its label that must be considered").

If anything, the Sierra Club decision supports plaintiffs' position more than EPA's. It confirms the fact that although EPA may issue a final rule addressing one discrete sub-area, this "final action" does not automatically deprive the district court of jurisdiction to compel EPA to undertake additional rulemaking addressing another discrete, but related, sub-area, where EPA has a nondiscretionary duty to do so.⁸

Finally, we note that if a court were to find that EPA has a nondiscretionary duty to engage in additional rulemaking regarding conformity criteria for attainment areas, then it would be required to fashion and monitor a remedy, which normally entails a number of factual issues. For example, the court would have to determine what is an appropriate deadline for completing the rulemaking, and potentially address failures to comply with the deadline or requests for extensions of time. Notably, district courts were given jurisdiction over claims alleging the failure to undertake nondiscretionary action, at least in part, because district courts are often better equipped to address such factual issues and monitor compliance with deadlines. See Citizens for a Better Environment v. Costle, 610 F. Supp. 106, 112 [15 ELR 20793] (N.D. Ill. 1985) (district courts were given jurisdiction over "agency-inaction" cases because those courts are equipped to develop a record).

This court, may, of course, ultimately reject plaintiffs' contention that EPA has a nondiscretionary duty to issue additional transportation and general conformity rules for attainment areas. However, we conclude, for the reasons set forth above, that plaintiffs are entitled to have that issue decided in the district court. See, e.g., Natural Resources Defense Council v. U.S. EPA, 695 F. Supp. 48 [19 ELR 20344] (D.D.C. 1988) (interpreting Clean Air Act provision to determine whether EPA has nondiscretionary duty to promulgate certain standards), vacated on other grounds, 707 F. Supp. 3 (D.D.C. 1988).⁹

Accordingly, and good cause appearing, it is HEREBY ORDERED that:

1. this court has jurisdiction to entertain plaintiffs' Motion for Partial Summary Judgment and/or Enforcement of Prior Court Order.

2. EPA shall file its opposition to plaintiffs' motion by no later than Friday, August 26, 1994. Plaintiffs shall file their reply thereto no later than Tuesday, September 6, 1994. Argument shall be heard on this motion on Monday, September 26, 1994, at 10:00 a.m.

IT IS SO ORDERED.

1. See 136 Cong. Rec. S16956 and S16972 (daily ed. October 27, 1990) (statements of Senators Chafee and Baucus).

2. Nonattainment areas are areas where the National Ambient Air Quality Standards ("NAAQS") have been violated. "Maintenance" areas are areas that were designated nonattainment after the 1990 amendments but are subsequently determined to be in compliance with NAAQS and thus in "attainment." 42 U.S.C. §§ 7407(d), 7505(a); 40 C.F.R. 51.932; 58 Fed. Reg. 62217.

3. It is unclear whether EPA also intends to promulgate, at some future point, an additional "general conformity" rule for a limited category of attainment areas. See 58 Fed. Reg. 63214.

4. This petition also alleges that EPA is required to issue a conformity rule for attainment areas. According to plaintiffs, this claim was included as a precautionary measure, to ensure that it was preserved in the event that we found that jurisdiction belongs in the Court of Appeals.

5. Certain EPA actions that have local or regional effects are reviewable in the Court of Appeals for that locality or region, rather than the D.C. Court of Appeals. See 42 U.S.C. § 7607(b).

6. This case was brought under the Clean Water Act; however, that Act has a jurisdictional scheme comparable to that provided by the Clean Air Act. See Commonwealth of Penn. 618 F.2d at 994-95.

7. Although this case was brought, in part, under the Resource Conservation and Recovery Act ("RCRA"), RCRA contains jurisdictional provisions comparable to those set forth in the Clean Air Act.

8. In a footnote, EPA alternatively argues that even if plaintiffs are not seeking review of final agency action or a national regulation pursuant to 42 U.S.C. § 7607(b)(1), appellate jurisdiction is nonetheless required under 42 U.S.C. § 7607(b)(2), which provides that "[w]here a final decision by the Administrator defers performance of any nondiscretionary statutory action to a later time, any person may challenge the deferral pursuant to [42 U.S.C. § 7607(b)(1)]."

Although neither side points to any case law interpreting this provision, we are not persuaded that it deprives the district court of jurisdiction in this case. First, it only provides that any person "may" — not "must" — challenge the deferral pursuant to § 7607(b)(1). Second, this provision appears to address instances where the Administrator has decided to "defer" the performance of duties that are nondiscretionary. Here, the question is not whether EPA has the right to "defer" action but whether it has a mandatory duty to act at all.

9. At argument, plaintiffs requested that EPA be required to begin preparations for additional rulemaking pending the outcome of this motion on the merits. We find no basis for ordering such preparatory actions absent any finding that EPA is under a nondiscretionary duty to engage in additional rulemaking. Not only is such a request premature on its face, but the authority cited by plaintiffs fails to support their request. Accordingly, this request is rejected.