Center For Biological Diversity et al v. McCarthy
Filing
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Order by Hon. Phyllis J. Hamilton denying 40 Motion for Relief from Consent Decree.(pjhlc2S, COURT STAFF) (Filed on 8/31/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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CENTER FOR BIOLOGICAL
DIVERSITY, et al.,
Case No. 16-cv-04092-PJH
Plaintiffs,
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ORDER DENYING MOTION FOR
RELIEF FROM CONSENT DECREE
v.
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Re: Dkt. No. 40
SCOTT PRUITT,
United States District Court
Northern District of California
Defendant.
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Before the court is defendant Scott Pruitt’s motion for relief from the Consent
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Decree. Dkt. 40. The matter is fully briefed and is to be decided on the papers pursuant
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to a prior order of the court. Dkt. 39. Having read the parties’ papers and carefully
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considered their arguments and the relevant legal authority, and good cause appearing,
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the court hereby DENIES the motion.
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BACKGROUND
This is a closed environmental law case involving air quality requirements, brought
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pursuant to § 304(a)(2) of the Clean Air Act (“CAA”). On July 21, 2016, plaintiffs the
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Center for Biological Diversity, the Center for Environmental Health, and the Clean Air
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Council (collectively, “plaintiffs”) brought this action against Gina McCarthy, in her
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capacity as the Administrator of the United States Environmental Protection Agency
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(“EPA”). The current Administrator, Scott Pruitt, has since been substituted as the
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defendant following the change in administration.
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Plaintiffs alleged that EPA failed to perform non-discretionary duties required by
the CAA in relation to the 2008 National Ambient Air Quality Standards (“NAAQS”) for
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ozone. See Dkt. 27, First Amended Complaint (“FAC”) ¶ 1. Once EPA promulgates the
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NAAQS, the CAA requires that EPA designate areas of the country as in compliance
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(“attainment”) or not in compliance (“nonattainment”). FAC ¶ 16. Each state is required
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to submit state implementation plans (“SIPs”) to ensure that it meets the NAAQS.
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If a state or area fails to submit a SIP, EPA must make that determination and
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publish notice of it on the Federal Register, a process called a “finding of failure to
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submit.” FAC ¶ 20. Once a region submits a SIP, EPA must make a determination as to
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whether or not that SIP is “administratively complete” within 6 months. FAC ¶ 19. EPA
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must then either approve or disapprove the SIP within one year. FAC ¶ 21.
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Plaintiffs alleged that EPA did not perform these duties in a timely manner. The
United States District Court
Northern District of California
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FAC brought two causes of action. The first claim alleged that EPA has failed to make a
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“finding of failure to submit” with respect to certain regions. FAC ¶¶ 30–35. The second
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claim alleged that the SIPs submitted by other regions were “deemed administratively
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complete” by law after six months, but EPA has failed to make any determination
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approving or disapproving the SIP within a year, as required by law. FAC ¶¶ 36–42.
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On January 19, 2017, the court granted the parties’ joint motion to enter a Revised
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Consent Decree. Dkt. 32 (the “Consent Decree”). As relevant to this motion, paragraph
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3.n. of the Consent Decree requires EPA to take a final action, by September 29, 2017,
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on Delaware’s SIP regarding (i) the Ozone Transport Region Reasonable Available
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Control Technology (RACT) Nitrogen Oxide (NOx) for Major Sources, and (ii) the RACT
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Non-Control Technique Guidelines (CTG) Volatile Organic Compounds (VOC) for Major
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Sources.
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Stated more plainly, the Consent Decree requires that EPA approve, disapprove,
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or conditionally approve Delaware’s plan to use reasonably available technologies to
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control major sources of nitrogen oxides and other volatile organic compounds by
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September 29, 2017.
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On July 28, 2017, plaintiffs filed an administrative motion requesting that the court
hold a telephonic status conference because it appeared that EPA would not be able to
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comply with this deadline in the Consent Decree. Dkt. 36. The court granted the motion
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and held a telephonic status conference on August 7, 2017. Dkt. 38. Following the
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conference, the court ordered EPA to file a motion for an extension of the deadline, which
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is now fully briefed and ripe for decision.
DISCUSSION
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A.
Legal Standard
Because an approved consent decree represents a judgment of the court, a party
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seeking relief from its terms must establish one of the grounds identified in Federal Rule
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of Procedure 60(b). Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 378 (1992). Here,
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EPA seeks relief from the judgment because “applying [the consent decree] prospectively
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United States District Court
Northern District of California
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is no longer equitable,” as well as “any other reason that justifie[s] relief.” Fed. R. Civ. P.
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60(b)(5)–(6). Rule 60(b)(5) “provides a means by which a party can ask a court to modify
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or vacate a judgment or order if a significant change either in factual conditions or in law
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renders continued enforcement detrimental to the public interest.” Horne v. Flores, 557
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U.S. 433, 447 (2009) (quotations omitted).
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There is two-part standard for modifying a consent decree under Rule 60(b)(5).
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First, the “party seeking modification of a consent decree bears the burden of
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establishing that a significant change in circumstances warrants revision of the decree.”
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Rufo, 502 U.S. at 383. If this “heavy burden” is met, the “district court must then
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determine whether the proposed modification is suitably tailored to resolve the problems
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created by the changed factual or legal conditions.” United States v. Asarco Inc., 430
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F.3d 972, 979–80 (9th Cir. 2005). A court abuses its discretion when it refuses to modify
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a consent decree in light of such changes if the moving party has met its burden and the
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modification is suitably tailored. Horne, 557 U.S. at 447.
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In deciding whether to modify a consent decree, courts should act in their
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“traditional equity role” and “take all the circumstances into account.” Bellevue Manor
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Assocs. v. United States, 165 F.3d 1249, 1256 (9th Cir. 1999). Ordinarily, “modification
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should not be granted where a party relies upon events that actually were anticipated at
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the time it entered into a decree.” Id. at 385.
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B.
The Parties’ Positions
EPA’s motion asks that the court: (1) hold the deadline in paragraph 3.n of the
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Consent Decree in abeyance “while the new administration completes its review of an
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EPA final agency action addressing emission controls during the start-up, shutdown, and
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malfunction of sources” (the “SSM Action”); or (2) extend the deadline until February 28,
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2018.
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EPA submits that there is good cause to extend the deadline because it would be
“consistent” with an order of the D.C. Circuit Court of Appeals that held a challenge to the
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United States District Court
Northern District of California
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SSM Action in abeyance. The SSM Action is a regulation relating to emissions from
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stationary pollution sources during startup, shutdown, and malfunctions. This regulation
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is currently under judicial review before the D.C. Circuit. Following the change in
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administration, EPA requested that oral argument in the D.C. Circuit case be held in
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abeyance while the new administrator, Scott Pruitt, reviews the positions taken by EPA in
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that case. The D.C. Circuit granted the request. EPA asserts that its decision to approve
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or disapprove Delaware’s SIP “could well turn on the results of this policy review.”
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Plaintiffs argue that EPA has not met its burden for three reasons. First, it is not
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disputed that the extension sought by EPA would perpetuate a statutory violation of a
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mandatory duty in the CAA. EPA’s proposed modification would therefore defeat “the
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very purpose” of the Consent Decree. Second, EPA has not identified the relevant
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“change in circumstances” to justify relief. Presuming that the change in circumstances is
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EPA’s decision to undertake a “policy review” of the SSM Action, that decision was EPA’s
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“own doing” and could have been anticipated when the court entered the Consent
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Decree. Third, plaintiffs argue that EPA’s requested relief is not suitably tailored. EPA’s
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proposed stay is indefinite, and it is “pure speculation” whether the policy review will, in
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fact, impact the decision on the Delaware SIP. Even if EPA chooses to change policy,
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rescinding and revising the SSM Action is a process that could take years.
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In reply, EPA indicates that “consistent with its obligation under the Consent
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Decree” it recently signed a proposed rule that, if finalized, would satisfy its obligation to
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take final action on the Delaware SIP submission. Dkt. 42 at 1. The proposed rule will
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be open to public comment for thirty days; EPA will then consider any comments before
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taking final action.
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C.
Analysis
The court finds that EPA has not meet its burden to justify relief from the Consent
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Decree. EPA does not claim that it is unable to act on the Delaware SIP. Indeed,
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through the new proposed rule, EPA has started the process for doing so.
EPA’s alleged “change in circumstances” is of its own doing and therefore could
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United States District Court
Northern District of California
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have been anticipated. The policy review appears to be a result of the change in
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presidential administrations. Because the Consent Decree was entered several months
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after the election of President Trump, EPA was aware of this eventuality at the time.
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In any event, whether EPA’s “policy review” will have any impact on EPA’s
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decision is entirely speculative at this juncture. Even if EPA ultimately decided to change
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policy, EPA could later revise its decision on the Delaware SIP, if necessary. See 42
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U.S.C. § 7410(k)(6).
Finally, even if EPA had met its burden to show an unanticipated “change in
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circumstances” justifying relief, its proposed modification is not suitably tailored. EPA
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does not indicate any specific date by which its “policy review” will be complete. EPA’s
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proposal—an open-ended extension of the deadline—would defeat the core purpose of
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the Consent Decree by perpetuating a statutory violation. Cf. Rufo, 502 U.S. at 391
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(1992) (“Of course, a modification [to a consent decree] must not create or perpetuate a
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constitutional violation.”)
In sum, EPA’s decision to consider changing a related regulatory policy, at some
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point in the future, cannot excuse its failure to comply with its statutory duties and the
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judgment of this court.
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CONCLUSION
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For the foregoing reasons, EPA’s motion for relief from the Consent Decree is
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DENIED. EPA is hereby ORDERED to take final action on the Delaware RACT SIP
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within 90 days of the date of this order.
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IT IS SO ORDERED.
Dated: August 31, 2017
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__________________________________
PHYLLIS J. HAMILTON
United States District Judge
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United States District Court
Northern District of California
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