AL-ZAHRANI v. DONALD RUMSFELD, et al

Filing 40

AL-ZAHRANI v. DONALD RUMSFELD, et al

Doc. 40

Case 1:09-cv-00028-ESH Document 13

Filed 06/26/09 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SIERR CLUB, )
STEPHEN L. JOHNSON, Administrator, )

) ) )

Plaintiff, )

v. )
) ) ) )
)

Case No. 1:03CV02411 (GK)

United States Environmental Protection Agency, )

Defendant. )

LOUISIAA ENVIRONMENTAL )

ACTION NETWORK, )

Plaintiff, )

v. )
) )
) )

Case No. 1 :04CV00484 (GK)

STEPHEN L. JOHNSON, Administrator, )

United States Environmental Protection Agency, )

Defendant. )
EP A'S REPLY MEMORADUM IN SUPPORT OF EP A'S MOTION TO TERMINATE CONSENT DECREE
In opposing EPA's Motion to Terminate Consent Decree, Plaintiffs Sierra Club and

Louisiana Environmental Action Network claim that the Cour should merely hold this case in

abeyance so that - if it is necessar at some futue date - Plaintiffs can retu to this Cour to
enforce the provisions of the Consent Decree. This arguent rests on the erroneous assumption
that, ifthe D.C. Circuit takes certain actions in separate cases, Plaintiffs would be entitled to
retu to this Cour for fuher relief

under the Consent Decree. However, even ifthe D.C.

Circuit acts as Plaintiffs predict, Plaintiffs could secure no fuher relief in this case because each

Dockets.Justia.com

Case 1:09-cv-00028-ESH Document 13

Filed 06/26/09 Page 2 of 5

of

the obligations of

the Consent Decree has been met.

Plantiffs do not dispute that EP A has promulgated each of the rules it was required to

promulgate under the Consent Decree, but they speculate that the D.C. Circuit may vacate two of
those rules. In their view, this would constitute a "restoration of

the non-discretionar duties at

issue in the present case." Plaintiffs' Opp. and Cross-Mot. at 3-4 (Aug. 7,2007). However, the
issue of whether EP A has a non-discretionar duty to take certain actions has already been settled

in this case by entry of the Consent Decree. Plaintiffs have also already won the relief required
under the Consent Decree, because EP A has done what the Consent Decree requires.

Plaintiffs attempt to distinguish EDFv. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983), on the
grounds that they do not ask this Cour to pass judgment on the validity of the rules that EP A has
promulgated. This is not a meaningful distinction. In EDF, the D.C. Circuit distinguished

between the following questions: first, whether EP A had promulgated regulations in accordance

with the Cour's order, and second, whether EPA's action to suspend those regulations was valid.
Plaintiffs here point to the D.C. Circuit's holding that the validity ofEP A's action in suspending
the regulation was a question for the cour of

appeals. EDF, 713 F.2d at 813. However, before

reaching that question, the D.C. Circuit also held that EPA's promulgation of

the regulation

fulfilled the statutory duty (and EPA's obligation under the District Cour order), regardless of

the fact that EP A then suspended the regulation. See id at 812 ("the cour properly determined
that the act it commanded had been performed"). The D.C. Circuit also found, quoting the

District Cour, that "the Cour directed the Agency to promulgate regulations, and the agency has

done so." Id EDF names only one circumstance in which promulgation of the regulations could
be considered not to fulfill the statutory duty, and that is the agency's bad faith, an issue that is
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Case 1:09-cv-00028-ESH Document 13

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not present here. See id
The interpretation that promulgation fulfills a non-discretionar duty, regardless of

what

happens after promulgation, is borne out in subsequent cases. In Sierra Club v. Whitman, 285

F.3d 63 (D.C. Cir. 2002), the District Cour imposed a deadline On EPA to make a determination
required by the Clean Air Act. EP A met the deadline, but at the same time that it made the

determination, it proposed a rule to stay the effective date of its determination. The plaintiffs in
Whitman challenged the stay in the Cour of Appeals, and also sought to enforce the original

deadline in the District Cour. The District Cour held, and the D.C. Circuit agreed, that
promulgation of the rule satisfied EP A's obligation regardless of

the stay of effectiveness. Id at

68. The Cour noted: "The objection is that once having complied, EP A undid what the order

required and thereby violated it. To accept this contention would require us to read the cour's
order as restricting more than the cour itself

intended." Id See also Center for Science in the

Public Interest v. Regan, 727 F.2d 1161, 1164 (D.C. Cir. 1984) (holding that agency met the

requirements of a cour order by publishing a rule, even though the agency rescinded that rule by
subsequent administrative action before it took effect).
In a recent unpublished decision involving the paries to this case, the District Cour had

granted a preliminar injunction requiring EP A to act on several state submissions under the
Clean Air Act, and publish Federal Register notices ofthat action, by a paricular deadline. See

Sierra Club v. Whitman, No. 02-2235, slip op. (D.D.C. August 24, 2004) (attached hereto as

Exhbit 2). EP A approved the state submissions, but that one of those approval actions was

subsequently invalidated by the D.C. Circuit. Sierra Club then moved to enforce the preliminar
injunction that the District Cour's had originally issued. Judge Robertson rejected that request,
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Case 1:09-cv-00028-ESH Document 13

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and ruled that the publication of

the Federal Register notices satisfied the terms of

the injunction.

In each of these cases, EP A fulfilled a non-discretionar duty to act, even though that

action did not take legal effect because of some intervening factor. These situations are not
materially different from the possible vacatu of EP A's regulations that Plaintiffs posit may occur
here. Even if

the D.C. Circuit were to restore the legal status quo by vacating certin rules, that

would not affect the

factual question of

whether, by the dates specified in the Consent Decree,

EP A had taken the required actions and forwarded notice of those actions to the Federal Register.
Vacatu would remove the legal effect of

EPA's regulations, but it would not mean that, as a

factual matter, they had never been promulgated at all. See Sierra Club v. Whitman, slip op.

(noting that the D.C. Circuit invalidated the substance ofEP A's decision, but not the act of
makng the decision). If Plaintiffs sought to retu to this Cour and seek enforcement of

the

Consent Decree, therefore, the Cour would have no choice but to conclude that EP A had

complied with each of its terms. Because there is no possibility for fuher relief for Plaintiffs in
this case under the Consent Decree, Plaintiffs' argument in favor of abeyance must be rejected.

For the foregoing reasons, EPA moves that the Consent Decree in this litigation be

terminated and that the Cour bring its jurisdiction over this matter to a close.
Respectfully submitted,

DAVID GUNTER Environmental Defense Section United States Deparment of Justice P.O. Box 23986 Washington, DC 20026 [phone] Counsel for Defendant Stephen L. Johnson
Dated: August 10, 2007
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Case 1:09-cv-00028-ESH Document 13

Filed 06/26/09 Page 5 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SIERR CLUB, )

)
) ) )

Plaintiff, )

v. )
) ) )

Case No. 1:03CV02411 (GK)

STEPHEN L. JOHNSON, Administrator, )

United States Environmental Protection Agency, )

Defendant. )

LOUISIANA ENVIRONMENTAL )

ACTION NETWORK, )

Plaintiff, )

v. )
) ) )

)

Case No.1 :04CV00484 (GK)

STEPHEN L. JOHNSON, Administrator, )

United States Environmental Protection Agency, )

Defendant. )
)
On August 10,2007, I am filing EPA's Reply In Support of

CERTIFICATE OF SERVICE
EPA's Motion to Terminate

Consent Decree in the above-captioned case using the Cour's electronic fiing system. I certify
that the following counsel are registered to receive electronic service in this case and that EPA's

Motion to Terminate Consent Decree will be served on them in that maner upon fiing.
Adam Babich James S. Pew
ababichcqlaw. tulane.edu

jpewcqearhjustice.org

DA ID GUNTER

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