WildEarth Guardians v. Perciasepe

Filing 36

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS. Defendant's Motion to Dismiss 8 is GRANTED for lack of subject matter jurisdiction. Plaintiff's remaining claim is DISMISSED WITHOUT PREJUDICE. Judgment shall enter in favor of Defendant. Each party shall bear her or its own costs, by Judge William J. Martinez on 3/11/2014.(dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Case No. 13-cv-1275-WJM-KMT
WILDEARTH GUARDIANS,
Plaintiff,
v.
GINA MCCARTHY, in her official capacity as Administrator of the United States
Environmental Protection Agency,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

Plaintiff Wildearth Guardians brings this action against the Administrator for the
Environmental Protection Agency (“EPA”), Gina McCarthy (“Defendant”). (ECF No. 1.)
This case is brought pursuant to Section 304(a)(2) of the Clean Air Act, which provides
that any person can sue the Administrator of the EPA “where there is alleged a failure
of the Administrator to perform any act or duty under this chapter which is not
discretionary.” 42 U.S.C. § 7604(a)(2).
Before the Court is Defendant’s Motion to Dismiss (“Motion”) for lack of subject
matter jurisdiction. (ECF No. 8.) For the reasons set forth below, the Motion is granted
and this action is dismissed without prejudice.
I. LEGAL STANDARD
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). Where Congress places limits on the jurisdiction
of federal courts, such limits “must be neither disregarded nor evaded.” Owen Equip. &

Erection Co. v. Kroger, 437 U.S. 365, 375 (1978).
Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of jurisdiction
over the subject matter.” Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not
a judgment on the merits of a plaintiff’s case. Rather, it calls for a determination that
the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction
rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576,
1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and
may only exercise jurisdiction when specifically authorized to do so). The burden of
establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
II. BACKGROUND
Congress enacted the Clean Air Act (“CAA”), 42 U.S.C. §§ 7401–7671q, “to
protect and enhance the quality of the Nation’s air resources so as to promote the
public health and welfare and the productive capacity of its population.” Id. at
§ 7401(b)(1). In 1970, Congress enacted broad-sweeping amendments to the CAA to
“guarantee the prompt attainment and maintenance of specified air quality standards.”
Ak. Dep’t of Env. Conservation v. EPA, 540 U.S. 461, 469 (2004) (“ADEC”). It imposed
numerous mandatory deadlines on the EPA and created a citizen suit provision, 42
U.S.C. § 7604(a)(2), to allow the public to enforce those deadlines.
A.

General Background on the CAA
As part of the CAA, Congress charged the EPA with setting National Ambient Air

Quality Standards (“NAAQS”) for certain pollutants. 42 U.S.C. § 7409. The NAAQS set

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the maximum allowable air concentration for a particular pollutant and, every five years,
must be reviewed and revised. Id. §§ 7408, 7409(b). Within two years of the revision
of a NAAQS, the EPA must identify areas in the United States that do not meet the
standard, which are designated “non-attainment” areas. Id. §§ 7407(d)(1)(A)(i)-(ii).
Once a NAAQS is revised, each state must adopt and submit to the EPA for
approval a State Implementation Plan (“SIP”) that “provides for implementation,
maintenance, and enforcement of [the NAAQS] in each air quality control region (or
portion thereof) within such State.” Id. § 7410(a)(1). Each SIP must “include
enforceable emission limitations and other control measures, means, or techniques . . .
, as well as schedules and timetables for compliance, as may be necessary or
appropriate to meet the [CAA’s] applicable requirements.” Id. § 7410(a)(2)(A). While
certain components are universal in each SIP, the CAA affords the states discretion to
create an appropriate plan, so long as the SIPs achieve the articulated standards for
clean air. Id.
For non-attainment areas, the CAA provides specific deadlines and requirements
for the SIPs, which are set forth in Part D of the CAA. See 42 U.S.C. § 7501 et seq.
Part D is broken down into six Subparts: Subpart 1 sets forth general requirements for
SIPs that are applicable to all non-attainment areas for any NAAQS, while Subparts 2-6
set forth more specific requirements for non-attainment areas, depending on the nature
of the NAAQS that has not been met. Relevant to this case, Subpart 4 applies to
particulate matter NAAQS. See 42 U.S.C. §§ 7513-7513b. The deadline for submitting
a SIP under Subpart 1 is no later than 3 years after designation as a non-attainment

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area1, while Subpart 4 requires that the SIP be submitted within 18 months of the
designation. Compare 42 U.S.C. § 7502(b) with § 7513a(a)(2)(B).
Between 1987 and 1997, the NAAQS applied only to air particles equal to or
smaller than 10 micrometers (“PM10”). See Revisions to the National Ambient Air
Quality Standards for Particulate Matter, 52 Fed. Reg. 24,634, 24,639 (July 1, 1987).
However, in 1997, the EPA revised the particulate matter NAAQS, this time setting
separate PM2.5 standards for fine particles (having a diameter of 2.5 micrometers or
less), while retaining the existing PM10 standards. See National Ambient Air Quality
Standards for Particulate Matter, 62 Fed. Reg. 38,652, 38,654 nn. 5-6 (July 18, 1997).
In 2005, EPA published its Proposed Rule To Implement the 1997 Fine Particle
National Ambient Air Quality Standards, 70 Fed. Reg. 65,984 (Nov. 1, 2005). After
notice and comment, the final Clean Air Fine Particle Implementation Rule
(“Implementing Rule”) was adopted on April 25, 2007. See Clean Air Fine Particle
Implementation Rule, 72 Fed. Reg. 20586 (April 25, 2007). In the Implementing Rule,
the EPA expressly followed the general provisions in Subpart 1 of Part D rather than
Subpart 4’s particulate-matter-specific provisions. Id. at 20,589 (“EPA is issuing this
rule to implement the 1997 PM2.5 NAAQS in accordance with the statutory requirements
of the CAA set forth in Subpart 1 of Part D of Title 1, i.e., sections 171-179B of the Act.
. . . EPA has concluded that Congress did not intend the Agency to implement
particulate matter NAAQS other than those using PM10 as the indicator in accordance

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The CAA directs the EPA to “establish a schedule” for a state to submit its SIP, but
mandates that the deadline can be no later than 3 years after designation as a non-attainment
area. 42 U.S.C. § 7502(b).

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with Subpart 4 of Part D of Title 1 . . . .”). Thus, the EPA explicitly directed states to
submit their PM2.5 SIPs in accordance with the requirements and timing set forth in
Subpart 1.
A number of environmental organizations filed a petition challenging the EPA’s
decision to promulgate the Implementing Rule pursuant to the provisions of Subpart 1
rather than Subpart 4. In National Resources Defense Council et al. v. EPA, 706 F.3d
428 (D.C. Cir. 2013) (“NRDC Decision”), the United States Court of Appeals for the
D.C. Circuit held that the Implementing Rule ignored the plain meaning of the CAA
because Subpart 4’s reference to PM10, which includes all particles less than ten
micrometers in diameter, necessarily included all PM2.5 particles since they are smaller
than ten micrometers in diameter. Id. at 435. Thus, by the CAA’s express terms,
Subpart 4 governed the SIPs for PM2.5 non-attainment areas. Id. Based on this
interpretation of the CAA, the court granted the petition and remanded the case to the
EPA to “re-promulgate these rules pursuant to Subpart 4.” Id. at 437. The court
declined the plaintiff’s request to set a deadline for the EPA to act. Id. at 437 n.10.
On November 21, 2013, the EPA issued its proposed rule clarifying PM2.5
implementation requirements in response to the NRDC decision. See Identification of
Nonattainment Classification and Deadlines for Submission of State Implementation
Plan (SIP) Provisions for the 1997 Fine Particle (PM2.5 ) National Ambient Air Quality
Standard (NAAQS) and 2006 PM2.5 NAAQS, 78 Fed. Reg. 69806-01 (Nov. 21, 2013).
This proposed rule sets a deadline of December 31, 2014 for submission of PM2.5 SIPs
that comply with the requirements in Subpart 4. Id.

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B.

Factual Background for this Action
In September 2006, the EPA finalized revisions to the PM2.5 NAAQS. (Am.

Compl. ¶ 1.) In November 2009, the EPA designated portions of Idaho and Utah as
non-attainment areas; these designations became final on December 14, 2009. (Id.
¶¶ 2, 33.) As of September 11, 2013, neither Idaho nor Utah had submitted PM2.5 SIPs
which satisfied either Subpart 1 or Subpart 4. Therefore, Plaintiff brought this action
alleging that the EPA had failed to make the required finding that these states had
failed to submit timely SIPs, under either Subpart 4 (Claim One) or Subpart 1 (Claim
Two). (Id. ¶¶ 39-54.) After the Amended Complaint was filed, Idaho and Utah both
submitted SIPs pursuant to Subpart 1, which led to Plaintiff voluntarily dismissing Claim
Two. (ECF No. 35.) Thus, the only claim remaining in this case is whether the EPA
failed to make the required finding that Idaho and Utah had failed to timely submit PM2.5
SIPs that satisfy Subpart 4.
III. ANALYSIS
Defendant moves to dismiss this action arguing that the Court does not have
subject matter jurisdiction because Plaintiff has not shown that this case falls within the
CAA’s limited waiver of sovereign immunity. (ECF No. 8 at 1.) “It is axiomatic that the
United States may not be sued without its consent and that the existence of consent is
a prerequisite for jurisdiction.” Nero v. Cherokee Nation of Okla., 892 F.2d 1457, 1463
(10th Cir. 1989). Such consent “cannot be implied but must be unequivocally
expressed.” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quotation omitted).
Thus, where the defendant is a federal agency, a plaintiff must establish that Congress

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has waived sovereign immunity for the particular claim at issue.
The CAA’s citizen suit provision waives sovereign immunity for certain specific
claims against the EPA. 42 U.S.C. § 7604(a). Pertinent to this case, sovereign
immunity is waived for lawsuits alleging that the EPA missed a statutorily-imposed, nondiscretionary deadline. See 42 U.S.C. § 7604(a)(2); see also Mountain States Legal
Found. v. Costle, 630 F.2d 754, 766 (10th Cir. 1980) (finding that, by enacting section
304(a)(2), Congress “restricted citizens’ suits to actions seeking to enforce specific
non-discretionary clear-cut requirements of the Clean Air Act.”); Farmers Union Cent.
Exchange, Inc. v. Thomas, 881 F.2d 757, 760 (9th Cir. 1989) (explaining that only
violations of “clear-cut” non-discretionary duties give rise to jurisdiction under the
citizen-suit provision). Thus, in order for this case to fall within the limited waiver of
sovereign immunity, Plaintiff must show that it is seeking to enforce a specific nondiscretionary duty with which the EPA failed to comply.
Section 110(k)(1)(B) of the CAA requires the EPA to make a finding that a state’s
SIP is complete or incomplete within 2 months of submission. 42 U.S.C.
§ 7410(k)(1)(B). If no SIP is submitted, the EPA must make a deficiency finding no
later than 6 months after the submission deadline. Id. Unless a complete SIP is
approved within 2 years after the EPA issues its deficiency finding, the state loses its
right to implement its own plan, and the EPA must promulgate a Federal
Implementation Plan. 42 U.S.C. § 7410(c)(1).
Plaintiff contends that the EPA has failed to perform its non-discretionary duty to
make a finding that Utah and Idaho (together “the States”) failed to submit timely SIPs
to the EPA in accordance with Subpart 4. (ECF No. 13 at 9.) Plaintiff alleges that,
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since the NRDC Decision made it clear that the requirements of Subpart 4 “have always
governed” SIPs submitted in response to the 2007 declaration of PM2.5 non-attainment
areas, the States’ SIPs should have been submitted within 18 months of the nonattainment designation, or no later than June 14, 2011. (Id. at 11.) Because it is
undisputed that the States did not submit their PM2.5 SIPs by June 14, 2011, Plaintiff
argues that the EPA was required to make a finding of non-compliance no later than
December 14, 2011. (Id. at 13.) Plaintiff contends that the EPA’s failure to make a
deficiency finding violates its mandatory, non-discretionary duty under 42 U.S.C.
§ 7410(k)(1)(B), such that this case falls within the CAA’s limited waiver of sovereign
immunity. (Id. at 3.)
The EPA argues that its duty under 42 U.S.C. § 7410(k)(1)(B) is only triggered if
a state has an obligation to submit an SIP by a date certain and fails to do so. (ECF
No. 19 at 3.) The EPA contends that, because the Implementing Rule specified that
the States did not have to submit their PM2.5 SIPs until 3 years after designation as a
non-attainment area—which would have been December 14, 2012—the States’ failure
to submit their PM2.5 SIPs by June 14, 2011 did not trigger § 7410(k)(1)(B). (Id.) The
EPA therefore argues that sovereign immunity has not been waived and the Court lacks
subject matter jurisdiction.
The parties have failed to cite, and the Court has been unable to locate, any
decision discussing a situation similar to this. The Court sees some merit to each of the
parties’ arguments. However, the Court is compelled to rule in favor of the EPA for two
reasons: (1) the NRDC Decision did not vacate the Implementing Rule, which compels

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the conclusion that the D.C. Circuit did not intend for its decision to be applied in a
retroactive manner; and (2) the overall structure of the CAA, particularly with regard to
the balance of the duties between the states and the federal government set forth in the
pertinent portions of the statute. The Court will address each of these issues in turn
below.
The primary basis for the Court’s finding that the EPA did not fail to perform a
non-discretionary duty comes from the NRDC Decision itself. Although the D.C. Circuit
Court of Appeals held that the EPA had misconstrued the CAA by implementing the
rules governing submission of PM2.5 SIPs under Subpart 1 rather than Subpart 4, it did
not vacate the Implementing Rule or direct the EPA to take immediate action to ensure
that all PM2.5 SIPs were submitted pursuant to Subpart 4. See NRDC Decision, 706
F.3d at 437. In fact, the court declined the plaintiffs’ invitation to set a deadline for the
EPA to re-promulgate the rules governing PM2.5 SIPs. Id. As the D.C. Circuit is well
aware that re-promulgation of an EPA rule requires the agency to go through the entire
rulemaking process, the court undoubtedly envisioned that there would be some delay
before its ruling took effect and states were required to file PM2.5 SIPs in accordance
with Subpart 4. This indicates that the NRDC court intended its decision to be
prospective in effect, rather than retroactive.
The NRDC court’s hesitance to impose retroactive obligations on the states and
the EPA has a long history of support in the cases interpreting the CAA. For example,
in Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002), the D.C. Circuit had to decide
the effective date of the EPA’s determination that the St. Louis metropolitan area did

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not meet its attainment deadline. Petitioners urged the court to make the EPA’s nonattainment determination effective as of the date that the statute required, rather than
the later date on which the EPA actually made the determination. The court rejected
this view, stating that it “would likely impose large costs on States, which would face
fines and suits for not implementing air pollution prevention plans . . . even though they
were not on notice at the time.” Id. at 68. Thus, the D.C. Circuit looked past the plain
language of the CAA which mandated that the EPA act within a certain time period, and
refused to retroactively punish a state for failing to do something that it was aware
needed to be done. Id.
Similarly, it would unfairly burden the States and the EPA to find that the States’
failure to submit their PM2.5 SIPs by June 14, 2011 triggered the EPA’s duty to make a
deficiency finding under § 7410(k)(1)(B). On June 14, 2011, the Implementing Rule
governed the States’ actions and informed the States that, because the EPA had
concluded that PM2.5 SIPs were governed by Subpart 1, they had 3 years from the date
of designation as a non-attainment area to submit their PM2.5 SIPs. See 72 Fed. Reg.
at 20,589. As the EPA is the agency charged with implementing the CAA, the States
were entitled to rely on the Implementing Rule promulgated by the EPA in scheduling
the pace with which they would proceed in developing their PM2.5 SIPs. See Vigil v.
Leavitt, 381 F.3d 826, 834 (9th Cir. 2004) (noting that Congress has given the EPA
rulemaking authority for the CAA).
The NRDC Decision was not issued until January 2013, which was the earliest
possible time that the States could have become aware that their PM2.5 SIPs should

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have been submitted in accordance with Subpart 4. To hold that the States violated the
CAA by failing to submit their PM2.5 SIPs by June 14, 2011 would be to punish them for
not meeting a deadline of which they were not aware at the time the deadline passed.
The case law implementing the CAA does not encourage such retroactive punishment.
See Sierra Club, 285 F.3d at 68.
An important aspect of the CAA is each state’s “wide discretion” in formulating its
SIP. United Elec. Co. v. EPA, 427 U.S. 246, 250 (1976). “[S]o long as the ultimate
effect of a State’s choice of emission limitations is compliance with the national
standards for ambient air, the State is at liberty to adopt whatever mix of emission
limitations it deems best suited to its particular situation.” Train v. Natural Res. Def.
Council, Inc., 421 U.S. 60, 79 (1975). If a state submits a timely and complete SIP, the
Federal Government’s role in implementing the CAA is confined to the ministerial
function of reviewing SIPs for consistency with the Act’s requirements. See 42 U.S.C.
§ 7410(k)(3) (“[T]he [EPA] Administrator shall approve [a SIP or SIP revision] as a
whole if it meets all of the applicable requirements of this chapter.” (emphasis added));
see also Fla. Power & Light Co. v. Costle, 650 F.2d 579, 587 (5th Cir. 1981) (“The great
flexibility accorded the states under the Clean Air Act is . . . illustrated by the sharply
contrasting, narrow role to be played by EPA.”). “This division of responsibility between
the states and the federal government ‘reflects the balance of state and federal rights
and responsibilities characteristic of our federal system of government.’” Luminant
Generation Co., LLC v. EPA, 675 F.3d 917, 921 (5th Cir. 2012) (quoting Fla. Power &
Light Co., 650 F.2d at 581).

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Were the Court to hold that June 14, 2011 was the States’ deadline to submit
their PM2.5, this division of responsibility would be upset. As this deadline has long
since passed and the States are yet to file a PM2.5 SIP that complies with Subpart 4, the
EPA would be required to issue its finding of non-compliance in accordance with
§ 7410(k)(1)(B). This deficiency finding would then trigger the EPA’s obligation under
§ 7410(c)(1) to begin promulgating a Federal Implementation Plan for the nonattainment areas. The EPA would therefore transition from its limited role ensuring that
the States’ SIP complies with the PM2.5 NAAQS, to fashioning an entire federal plan for
regulating the States’ emissions of PM2.5 particles. Due to no fault of their own, the
States would be denied the “wide discretion” they are afforded under the CAA to
implement whatever mix of emission limitations deemed best suited to their particular
situation. This unfair result is not warranted here. See Sierra Club, 285 F.3d at 68
(holding that retroactive application of EPA rules must be reasonable and should be
applied sparingly).
Because the NRDC Decision did not vacate the EPA’s Implementing Rule that
existed on June 14, 2011, the States were not obligated to file their PM2.5 SIPs at that
time. Therefore, the States’ failure to file the SIPs by that date did not trigger the EPA’s
obligation to issue a finding of non-compliance no later than December 14, 2011.
Moreover, retroactive application of Subpart 4 to impose deadlines of which the States
were not previously aware would be unfair and contrary to the state/federal balance
outlined in the CAA. Accordingly, the Court finds that Plaintiff has failed to show that
the EPA has missed a non-discretionary deadline and, therefore, this Court lacks
subject matter jurisdiction over this case.
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IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss (ECF No. 8) is
GRANTED for lack of subject matter jurisdiction. Plaintiff’s remaining claim is
DISMISSED WITHOUT PREJUDICE. The Clerk shall enter judgment in favor of
Defendant. Each party shall bear her or its own costs.2
Dated this 11th day of March, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

2

While costs are typically to be awarded to the prevailing party as a matter of course,
see Fed. R. Civ. P. 54(b), the Court is permitted to decline to award costs when the issues in a
case were close and complex, and are of significant public importance. See Ass’n of MexicanAm. Educators v. State of Cal., 213 F.3d 572, 591 (9th Cir. 2000). The Court finds that this
exception applies to this case.

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