Connecticut v. Pruitt et al

Filing 52

ORDER granting 36 Motion for Summary Judgment; denying 37 Motion for Order; granting 39 Motion for Summary Judgment. The Court retains jurisdiction over this matter. Accordingly, this case will not be closed until the parties provide notice that defendants have completed review of the petition.Signed by Judge Warren W. Eginton on 2/7/2018. (Gould, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STATE OF CONNECTICUT,
Plaintiff,
SIERRA CLUB and Connecticut
FUND FOR THE ENVIRONMENT,
Intervenor-Plaintiffs
v.

3:17cv796 (WWE)

SCOTT PRUITT and
THE UNITED STATES
ENVIRONMENTAL PROTECTION
AGENCY (“EPA”),
Defendants.
RULING ON MOTIONS FOR SUMMARY JUDGMENT AND
MOTION CONCERNING REMEDY
This action concerns plaintiff State of Connecticut‘s petition to the defendant EPA
pursuant to the Clean Air Act (“CAA”) concerning emissions from Brunner Island Steam
Electric Station in Pennsylvania. Plaintiff State of Connecticut and intervenor-plaintiff
Connecticut Fund for the Environment seek summary judgment based on defendant
EPA and EPA Administrator Scott Pruitt’s failure to act on the petition. Defendants,
who admit to liability due to their failure to act, have filed a motion concerning remedy.
For the following reasons, the Court will grant plaintiff State of Connecticut and
intervenor-plaintiff Connecticut Fund for the Environment’s motions for summary
judgment, and it will deny defendants’ motion concerning remedy.
BACKGROUND
The parties have submitted factual statements that reflect that the following facts
are not in dispute.
The CAA provides that states and downwind political subdivisions can petition

the EPA to (1) find that a polluter in an upwind state is causing air quality problems in
the downwind state; and (2) require the polluter to reduce its air pollution. 42 U.S.C. §
7426(b).
On June 1, 2016, Connecticut filed its petition pursuant to Section 126(b) of the
CAA for the EPA to make a finding that Brunner Island is emitting air pollutants that
significantly contribute to nonattainment or interfere with maintenance of the 2008
ozone National Ambient Air Quality standards in Connecticut.
Pursuant to 42 U.S.C. § 7426(b), the EPA was required to make the requested
finding or deny the petition within 60 days, or by July 31, 2016. On July 25, 2016, the
EPA announced in the Federal Register that it was granting itself a six-month extension,
until January 25, 2017, to take action on the petition. The EPA represented that the
additional time was necessary for the EPA to complete its “notice-and-comment
rulemaking” and to hold a public hearing on the petition. 81 Fed. Reg. 48,348 (July 25,
2016). However, to date, the EPA has not made the requested finding or denied the
petition; it has failed to hold a public hearing or propose a draft petition response for
public comment.
In a letter dated March 9, 2017, plaintiff provided the EPA with notice of its intent
to sue. Plaintiff served defendants with the instant complaint on March 22, 2017.
DISCUSSION
A motion for summary judgment will be granted where there is no genuine issue
as to any material fact and it is clear that the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Only when
reasonable minds could not differ as to the import of the evidence is summary judgment

proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).
The burden is on the moving party to demonstrate the absence of any material
factual issue genuinely in dispute. Am. Int’l Group, Inc. v. London Am. Int’l Corp., 664 F.
2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue exists, the
court must resolve all ambiguities and draw all reasonable inferences against the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
If a nonmoving party has failed to make a sufficient showing on an essential
element of his case with respect to which he has the burden of proof, then summary
judgment is appropriate.

Celotex Corp., 477 U.S. at 323.

If the nonmoving party

submits evidence which is “merely colorable,” legally sufficient opposition to the motion
for summary judgment is not met. Liberty Lobby, 477 U.S. at 24.
The parties do not contest that defendants are required by statute to take action
either granting or denying the petition and that the authorized time period for so acting
has expired. Thus, liability is not contested, and the parties request the Court to
determine the appropriate remedy relevant to the deadlines for the EPA to take action
on the petition. Specifically, plaintiff State of Connecticut requests that the Court order
that the EPA must hold a public hearing and issue a final decision within the 60-day
time period.
This parties do not contest that (1) this Court has jurisdiction pursuant to the CAA
Section 304(a)(2), or (2) that the Court has discretion to determine an equitable remedy
when an agency fails to meet its statutorily mandated deadline. Nat. Res. Def. Council
v. Southwest Marine, Inc., 236 F.3d 985, 999-100 (9th Cir. 2000). The Court has only
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discretion to fashion a remedy that comports with the express congressional intent.
Sierra Club v. McCarthy, 2015 WL 3666419, at *3 (N.D. Cal. 2015). Thus, if Congress
had established a statutory timeframe for compliance, the Court’s equitable remedy
should generally reflect the same timeframe previously set by Congress. Sierra Club v.
Thomas, 658 F. Supp. 165, 171 (N.D. Cal. 1987). At the same time, the Court should
consider whether the statutory deadline is impossible or infeasible. Id. See Nat. Res.
Def. Council, Inc. v. Train, 510 F.2d 692, 713 (D.C. Cir. 1974). The Court should
consider whether budgetary or employee demands are beyond the agency’s capacity
and whether the agency requires more time to evaluate complex technical issues.
Thomas, 658 F. Supp. at 171. Defendants bear a heavy burden of showing
impossibility of compliance. Alabama Power Co. v. Costle, 636 F.2d 323, 359 (D.C.
Cir. 1979).
Section 126(b) provides: “Within 60 days after receipt of any petition under this
subsection and after public hearing, the Administrator shall make such a finding or deny
the petition.” 42 U.S.C. § 7426(b). “This language demonstrates that the EPA must
act quickly on a Section 126(b) petition….” GenOn REMA, LLC v. EPA, 722 F.3d 513,
520 (3rd Cir. 2013). The legislative history to CAA indicates that the Section 126(b)
“petition process is intended to expedite, not delay, resolution of interstate pollution
conflicts.” New York v. Ruckelshaus, 1984 WL 13953, at *3 (D.D.C. Oct. 5, 1984).
Defendants have requested that the Court set December 31, 2018, as the
deadline for its final agency action, with proposed agency action on May 31, 2018, and
a hearing on July 2, 2018.
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In support of the assertion that a deadline of December 31, 2018, is necessary,
defendants have submitted the affidavit of Stephen Page, who was then Director of the
Office of Air Quality Planning and Standards, Office of Air and Radiation at the EPA.
His affidavit indicates that his staff has already initiated staff-level review of the petition
and preliminarily reviewed the modeling to determine the technical credibility of the
model inputs, modeling process, and whether the results substantiate petitioner’s
contention regarding emissions from Brunner Island. He represents that competing
demand on the EPA air program resources impede the progress of acting on the
petition in accordance with the time period that Congress determined to be appropriate.
Despite the priority set by Congress for review and decision on Section 126(b) petitions,
Page states that compliance with its statutory 60-day deadline would “jeopardize
completion of the many other important mandatory duties that the EPA is already
obligated to complete by the end of this fiscal year (i.e., by September 30, 2018).”
Intervenor-plaintiff Connecticut Fund for the Environment has submitted the
affidavit of Lyle Chinkin, who served as an EPA peer reviewer of the EPA particulate
matter National Ambient Air Quality Standards Criteria Document and was the project
manager and co-author of the EPA national guidance document on the preparation of
emission inputs for photochemical air quality simulation models. Based on his
experience with the EPA and his work in the area of air quality, including computerized
modeling simulations relative to emissions, he opines that the EPA could act upon the
State of Connecticut’s petition within 60 days. His affidavit notes that EPA’s 2011
modeling platform is complete and is the basis of the modeling relied upon in the
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petition filed by the State of Connecticut. Accordingly, he submits that a new modeling
platform is not necessary for the EPA to review the petition. He sets forth that
preparing specific emissions input data would take about one week for an experienced
modeler; and that analyzing the modeling results should take one to two weeks.
Defendants justify the need for almost a year extension to complete review of the
petition on the “many other important mandatory duties that the EPA is already
obligated to complete by the end of this fiscal year.” Defendants also indicate that the
extended time period is necessary to ensure a thorough evaluation and a sound
decision. However, agency compliance more than two years after the filing of the
petition is clearly at odds with period of time that Congress deemed appropriate for EPA
review of a Section 126(b) petition. Defendants’ proposed schedule contravenes the
congressional intent that EPA “act quickly on a Section 126(b) petition.” See GenOn
REMA, 772 F.3d at 520.
Defendants have not sustained their heavy burden of demonstrating the
impossibility or infeasibility of complete review of the petition within the 60-day period
accorded as appropriate by Congress. As the Court observed in Ruckelshaus: “That
the Act directs the Administrator to promulgate regulations within sixty days shows that
Congress did not expect defendant to resolve every potential problem before issuing a
final decision.” 1984 WL 13953, at *3. Defendants have already commenced review
on this petition, and EPA has another Section 126(b) petition regarding Brunner Island
pending, which should facilitate prioritizing work on this petition.
Accordingly, the Court will grant the motions for summary judgment filed by
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plaintiff State of Connecticut and intervenor-plaintiff Connecticut Fund for the
Environment. In fashioning the remedy, the Court will set the following schedule for
completion of the petition review: A public hearing on a proposed decision should be
held within 30 days of this ruling’s filing date; and final action making the requested
finding or denying the Section 126(b) petition should be issued within 60 days of this
ruling’s filing date. The Court will retain jurisdiction over this matter. Defendants’
motion concerning remedy will be denied.
CONCLUSION
For the foregoing reasons, the motions for summary judgment [docs. 36 and 39]
are GRANTED. The Motion Concerning Remedy is DENIED. Accordingly, the Court
finds that defendants are in violation of 42 U.S.C. § 7426(b) for failing to take final action
on the State of Connecticut’s petition within the 60-day deadline. EPA is instructed to
hold a public hearing on a proposed decision within 30 days of this ruling’s filing date;
and to take final action making the requested finding or denying the Section 126(b)
petition within 60 days of this ruling’s filing date.
The Court retains jurisdiction over this matter. Accordingly, this case will not be
closed until the parties provide notice that defendants’ have completed review of the
petition.

_/s/Warren W. Eginton_________________
WARREN W. EGINTON
SENIOR UNITED STATES DISTRICT JUDGE
Dated at Bridgeport, Connecticut this 7th day of February, 2018.

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