NATIONAL PARKS CONSERVATION ASSOCIATION et al v. UNITED STATES DEPARTMENT OF THE INTERIOR et al

Filing 27

MEMORANDUM OPINION to the Order granting Defendants' Motion to Dismiss. Signed by Judge Gladys Kessler on 6/30/11. (CL, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NATIONAL PARKS CONSERVATION
ASSOCIATION, et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF
INTERIOR and UNITED STATES
DEPARTMENT OF AGRICULTURE,
Defendants.

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: Civil Action No. 11-130 (GK)
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MEMORANDUM OPINION
Plaintiffs, ten non-profit environmental and conservation
organizations

(together,

“NPCA”),1

bring

this

suit

against

Defendants, the United States Department of the Interior (“DOI”)
and United States Department of Agriculture (“USDA,” collectively
the “Departments”), for declaratory and injunctive relief, pursuant
to the Administrative Procedure Act, 5 U.S.C. §§ 706(1) and 555(b).
NPCA seeks a declaratory judgment that Defendants have unreasonably
delayed responding to its petitions for formal certification of
reasonably attributable visibility impairments in various national
parks and wilderness areas. Plaintiffs also seek an order requiring
the Departments to act on the petitions within 30 days. The Arizona

1
Plaintiffs are National Parks Conservation Association,
WildEarth Guardians, Grand Canyon Trust, Northwest Environmental
Defense Center, San Juan Citizens Alliance, Center for Biological
Diversity, Washington Wildlife Federation, To’ Nizhoni Ani, Dooda
Desert Rock, and Sierra Club.

Public

Service

Company,

Central

Arizona

Water

Conservation

District, and Salt River Project Agricultural Improvement Power
District have intervened on behalf of Defendants. The matter is now
before the Court on Defendants’ Motion to Dismiss [Dkt. No. 12].
Upon consideration of the Motion, Opposition, and Replies, and the
entire record herein, and for the reasons stated below, Defendants’
Motion to Dismiss is granted.
I.

BACKGROUND
A.

Statutory Framework

The Clean Air Act (“CAA”), 42 U.S.C. §§ 7401-7671q (2011), is
the principal federal statute designed to “protect and enhance the
quality of the Nation’s air resources.” Id. § 7401(b)(1). Section
169A addresses visibility impairment in certain national parks and
wilderness areas, which are designated as “mandatory class I
Federal

areas.”2

establishes

a

Id.

§

“national

7491(a)(1).
goal”

of

Section

169A

preventing

of

and

the

CAA

remedying

visibility impairment in Class I areas resulting from manmade air
pollution.3 Id.
2

“Class I” areas include all international parks, national
wilderness areas which exceed 5,000 acres in size, national
memorial parks which exceed 5,000 acres in size, and national parks
which exceed 6,000 acres in size, which were in existence on August
7, 1977. See 42 U.S.C. § 7472(a). The term “mandatory class I
Federal areas” is defined as “Federal areas which may not be
designated as other than class I.” Id. § 7491(g)(5).
3

Although the CAA distinguishes between “mandatory class I
areas” and “class I areas,” this distinction is not relevant for
the purposes of this Memorandum Opinion. Therefore, the Court will
(continued...)
2

Section

169A

charges

the

Environmental

Protection

Agency

(“EPA”) with the responsibility to issue regulations to assure
reasonable progress toward the CAA’s national visibility goals. Id.
§ 7491(a)(4). In order to meet these goals, Section 169A instructs
EPA, in consultation with the Secretary of the Interior, to require
those States it identifies as containing Class I areas “where
visibility is an important value,” as well as States from which
emissions “may reasonably be anticipated to cause or contribute to
impairment

of

implementation

visibility”
plans

in

Class

(“SIPs”)

for

I

areas,

to

safeguarding

submit

State

visibility

in

protected Class I areas. Id. §§ 7491(a)(2), (b)(2).
EPA must require these SIPs to include “such emission limits,
schedules of compliance and other measures as may be necessary to
make reasonable progress.” Id. § 7491(b)(2). In particular, these
SIPs must require the installation and operation of the “best
available

retrofit

technology”

(“BART”)4

at

certain

major

3

(...continued)
simply refer to “Class I areas.”
4

BART means:
an emission limitation based on the degree of
reduction achievable through the application
of the best system of continuous emission
reduction for each pollutant which is emitted
by an existing stationary facility. The
emission limitation must be established, on a
case-by-case basis, taking into consideration
the technology available, the costs of
compliance, the energy and nonair quality
environmental impacts of compliance, any
(continued...)
3

stationary sources placed in operation between 1962 and 1977. Id.
§ 7491(b)(2)(A). The BART provisions apply to specific types of
stationary sources that emit more than 250 tons per year of any
pollutant. Id. § 7491(g)(7).
The same CAA implementation requirements apply to Indian
reservations.5 An Indian tribe, like a State, may submit a tribal
implementation plan (“TIP”). Id. § 7410(o). In instances where the
tribe does not assume this responsibility, EPA must promulgate a
federal implementation plan (“FIP”) applicable to the reservation.
40 C.F.R. § 49.11.
In addition to EPA and the States, Federal Land Managers
(“FMLs”),6 such as the Departments in the present case, play a role
in this process. In particular, the appropriate FMLs must be
consulted

regarding

any

SIP

revision

intended

to

meet

the

requirements of section 169A. 42 U.S.C. § 7491(d).

(...continued)
pollution control equipment in use or in
existence at the source, the remaining useful
life of the source, and the degree of
improvement in visibility which may reasonably
be anticipated to result from the use of such
technology.
40 C.F.R. § 51.301.
5

Two of the facilities identified in NCPA’s petitions, the
Navajo Generating Station and the Four Corners Power Plant, are
located on Navajo tribal land.
6

Federal Land Manager “means, with respect to any lands in
the United States, the Secretary of the department with authority
over such lands.” 42 U.S.C. § 7602(i).
4

B.
In

Implementing Regulations
1980,

EPA

issued

regulations

addressing

“reasonably

attributable visibility impairment,” meaning “visibility impairment
that is caused by the emission of air pollutants from one, or a
small number of sources.” 40 C.F.R. § 51.301. In relevant part,
these visibility impairment regulations state that “[t]he affected
Federal Land Manager may certify to the State, at any time, that
there exists reasonably attributable impairment of visibility in
any mandatory Class I Federal area.” Id. § 51.302(c)(1). If such a
certification is issued more than six months before a SIP or a SIP
revision is

scheduled

to be

submitted for

EPA

approval, the

subsequent SIP must include appropriate BART determinations and
compliance

schedules

for

each

of

the

offending

stationary

facilities. See id. § 51.302(c)(2)(iii).
In 1999, EPA issued additional regulations to carry out its
statutory mandate under Section 169A. These include the “regional
haze program requirements,” id. § 51.308, which are far broader in
scope than the visibility impairment regulations contained in
Section 51.302. They apply to all “BART-eligible sources” within
the State. Id. § 51.308(e). A BART-eligible source is defined as
any of a number of specified types of stationary facilities first
placed into operation between August 7, 1962 and August 7, 1977,
with the potential to emit 250 tons per year or more of any

5

pollutant. Id. § 51.301. In most relevant part, each State must
submit a SIP:
containing emission limitations representing
BART and schedules for compliance with BART
for each BART-eligible source that may
reasonably
be
anticipated
to
cause
or
contribute to any impairment of visibility in
any mandatory Class I Federal area, unless the
State demonstrates that an emissions trading
program or other alternative will achieve
greater reasonable progress toward natural
visibility conditions.
Id. § 51.308(e). Under EPA’s regional haze regulations, “[a] single
source that is responsible for a 1.0 deciview change or more should
be considered to ‘cause’ visibility impairment”7 and the threshold
for “determining whether a source ‘contributes’ to visibility
impairment should not be higher than 0.5 deciviews.” Id. pt. 51,
App. Y (2005).
C.

Factual and Procedural Background8

Plaintiffs bring this case based on three administrative
petitions they submitted to the Defendants, who are the FMLs for
the lands relevant to Plaintiffs’ petitions. The first petition,
7

A deciview is a “haze index” calculated “such that uniform
changes in haziness correspond to uniform incremental changes in
perception across the entire range of conditions, from pristine to
highly impaired.” 40 C.F.R. § 51.301.
8

For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat’l Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, unless otherwise noted, the facts set forth
herein are taken from the Complaint.
6

dated May 5, 2009, requested that DOI issue a certification that
the visibility in Class I areas within its jurisdiction is impaired
and that the impairment is reasonably attributable to emissions
from

the

Navajo

Generating

Station

in

Arizona.9

The

second

petition, dated June 24, 2009, requested a similar certification
from DOI with respect to emissions from the Centralia Power Plant
(“Centralia”) in Washington State.10 The third petition, dated
February 16, 2010, was sent to both Departments and requested that
each Department issue certifications with respect to emissions from
the Four Corners Power Plant (“Four Corners”) in New Mexico.11 If
issued, these certifications would trigger the requirement that
subsequent

SIPs

include

BART

determinations

and

compliance

schedules for the power plants in question. See 40 C.F.R. §
51.302(c)(2)(iii).
On January 20, 2011, in the absence of a response from
Defendants

regarding

their

petitions,

Plaintiffs

filed

this

Complaint [Dkt. No. 1], alleging that Defendants unreasonably

9

National Parks Conservation Association, Sierra Club, Grand
Canyon Trust, San Juan Citizens Alliance, To’ Nizhoni Ani, and Diné
CARE filed this petition.
10

National Parks Conservation Association, Washington Wildlife
Federation, Sierra Club, and Northwest Environmental Defense Center
filed this petition.
11

National Parks Conservation Association, Earthjustice,
Sierra Club, San Juan Citizens Alliance, Grand Canyon Trust, Center
for Biological Diversity, Diné Care, Dooda Desert Rock, and Wild
Earth Guardians filed this petition.
7

delayed acting on their petitions and seeking an order requiring
Defendants to respond to them.
On March 8, 2011, DOI sent a letter in response to Plaintiffs’
petitions. Defs.’ Mot. Ex. 4. The letter noted that all the
petitioned sources have already been determined by the State or EPA
to cause or contribute to visibility impairment, and therefore are
subject to BART determinations under the regional haze rule. The
letter also outlined the actions being taken with regard to each
petitioned source. With regard to the first petition, the letter
explained
Generating

that

although

Station

has

EPA’s
been

“BART

determination

delayed,”

EPA is

for

working

Navajo
on

the

development of a proposed rule to determine BART for the Navajo
Generating Station. Id. Ex. 4, at 1. With regard to the second
petition, Defendants indicated that the State of Washington has
already proposed regional haze SIPs and BART determinations for
Centralia. With regard to the third petition, the letter stated
that EPA has already proposed a FIP that would establish BART for
Four Corners.
The letter further stated that, in light of these proceedings,
DOI would “address BART through the existing regional haze BART
determinations prior to taking any additional action.” Id. The
letter explained that DOI reserved the right to certify reasonably
attributable visibility impairment if it found that the proposed
BART

determinations

did

not

adequately

8

mitigate

the

source’s

visibility

impact

and

such

certification

would

enhance

the

potential for mitigation. It concluded: “Until such time, however,
this letter fully and finally responds to all of the referenced
petitions.” Id. Ex. 4, at 2.
On March 17, 2011, USDA also sent a letter to Plaintiffs. Id.
Ex. 5. The letter stated that the National Forest Service is
actively participating in EPA’s development of an FIP to address
BART at the Four Corners Plant. Therefore, USDA “is deferring
action

on

the

petition

until

EPA

makes

its

final

BART

determination.” Id. Ex. 5, at 1.
Defendants filed their Motion to Dismiss, pursuant to Fed. R.
Civ.

P.

12(b)(1),

on

April

6,

2011.

Plaintiffs

filed

their

Opposition [Dkt. No. 19] on May 4, 2011. Finally, both Defendants
and Intervenors filed their Replies [Dkt. Nos. 24 and 25] on May
20, 2011.
II.

STANDARD OF REVIEW
Under Rule 12(b)(1), Plaintiffs bear the burden of proving by

a preponderance of the evidence that the Court has subject matter
jurisdiction. See Shuler v. U.S., 531 F.3d 930, 932 (D.C. Cir.
2008). In reviewing a motion to dismiss for lack of subject matter
jurisdiction, the Court must accept as true all of the factual
allegations set forth in the Complaint; however, such allegations
“will bear closer scrutiny in resolving a 12(b)(1) motion than in
resolving a 12(b)(6) motion for failure to state a claim.” Wilbur

9

v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C. 2003) (citations and
quotations omitted). The Court may consider matters outside the
pleadings. See Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192,
197 (D.C. Cir. 1992). The Court may also rest its decision on its
own resolution of disputed facts. Id.
III. ANALYSIS
In this lawsuit, Plaintiffs seek “an order finding that
[D}efendants . . . have failed to act without unreasonable delay on
three

of

[P]laintiffs’

petitions”

and

“establishing

a

prompt

deadline for DOI and DOA to act” on them. Compl. ¶ 1. Defendants
argue

that

the

“Departments’

Responses

fully

answered

NPCA’s

request by explaining that, at the present time, the Departments
would not exercise their authority.” Defs.’ Mot. 9. Therefore,
according

to Defendants,

“NPCA’s

claim

is

moot”

and

must

be

dismissed pursuant to Rule 12(b)(1). Id. Plaintiffs respond that
they “have not obtained a definitive decision on their petitions
and therefore have not obtained everything they can recover as a
matter of law.” Pls.’ Opp’n 8. Hence, the question presented here
is simply whether Defendants’ letter responses of March 8 and March
17, 2011, have discharged their duty to respond to Plaintiffs’
petitions.
The APA grants “an interested person the right to petition for
the issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e).
Agencies must “conclude a matter presented to it,” including a

10

petition for issuance of a rule, “within a reasonable time.” Id. at
§ 555(b); In re Am. Rivers and Idaho Rivers United, 372 F.3d 413,
418 (D.C. Cir. 2004). Therefore, an agency “is required to at least
definitively respond to . . . [a] petition—that is, to either deny
or grant the petition.” Families for Freedom v. Napolitano, 628 F.
Supp. 2d 535, 540 (S.D.N.Y. 2009).
If the agency does not respond to a petition, a reviewing
court may “compel agency action unlawfully withheld or unreasonably
delayed.” 5 U.S.C. § 706(1); In re Am. Rivers and Idaho Rivers
United, 372 F.3d at 418. If, on the other hand, an agency does
respond to a petition, even after a suit to compel a response is
filed, such a suit is rendered moot. Natural Res. Def. Council v.
Nuclear Regulatory Comm’n, 680 F.2d 810, 814 (D.C. Cir. 1982)
(“Corrective

action

by

an

agency

is

one

type

of

subsequent

development that can moot a previously justiciable issue.”); Sierra
Club, et al. v. Browner, et al., 130 F. Supp. 2d 78, 82 (D.D.C.
2001) (“Because the Court is unable to grant any relief beyond
requiring steps that EPA has already taken, [the claim] is moot.”).
Plaintiffs argue that Defendants’ responses do not render this
case moot because the responses do not provide a “definitive
decision” and are not “final.” Pls.’ Opp’n 8-9. An agency action
will be considered final when two conditions are met: first, “the
action must mark the consummation of the agency’s decisionmaking
process;” and, second, “the action must be one by which rights or

11

obligations have been determined, or from which legal consequences
will

flow.”

Bennett

v.

Spear,

520

U.S.

154,

177-178

(1997)

(internal quotations omitted). Specifically, “an agency’s denial of
a petition to initiate a rulemaking . . . is a final agency
action.” Fox Television Stations, Inc. v. Fed. Commc’ns Com’n, 280
F.3d 1027, 1037 (D.C. Cir. 2002).
It is clear from the face of the response letters in this case
that Defendants have reached a “definitive decision” to deny
Plaintiffs’ petitions. The Department of Interior’s response letter
explained that “we believe it is consistent with our affirmative
responsibility to protect air quality related values to address
BART through the existing regional haze BART determinations prior
to taking any additional action,” and that “this letter fully and
finally responds to all of the referenced petitions.” Defs.’ Mot.
Ex. 4, at 1-2. Hence, DOI declined to initiate the rulemaking
sought by Plaintiffs in deference to the ongoing efforts of EPA and
the States of Washington and Colorado. Id. Ex. 4, at 1. Similarly,
the letter response from the Department of Agriculture stated that
“the EPA is preparing the Federal Implementation Plan for Regional
Haze that must address Best Available Retrofit Technology” for the
Four Corners Power Plant and, because the “EPA has not yet made a
final decision regarding BART for the Four Corners Power Plant,
USDA is deferring action on the petition until the EPA makes its

12

final BART determination.” Id. Ex. 5, at 1. In short, EPA said “no”
to Plaintiffs’ requests.
Plaintiffs make much of the fact that the DOI letter noted
that “[a]t such time as we determine that the impacts are not
adequately mitigated [by the BART determinations in progress] and
that certifying reasonably attributable visibility impairment would
enhance the potential for mitigation, we have the right to certify
at that time” and that the USDA letter “defer[red] action on the
petition until the EPA makes its final BART determination.” Id. Ex.
4, at 2-3, Ex. 5, at 1. In essence, Plaintiffs contend that because
Defendants

may

certify

reasonably

attributable

visibility

impairments in the parks in question at some future time, but are
declining to do so now, Defendants have not fully responded to the
petitions. Pls.’ Opp’n 9-10.
However, Plaintiffs point to no authority for the proposition
that a denial of their petitions may only be considered final if
Defendants foreclose taking the course of action proposed by
Plaintiffs in the future.12 Plaintiffs have pointed to two cases,
neither of which support their argument. In the first case, it was
“undisputed that . . . [the agency had] neither denied nor granted
12

It is perfectly understandable why, after a delay of nearly
twenty-one months from the submission of their first petition,
Plaintiffs filed this suit to compel a response. What is less clear
is why Plaintiffs did not dismiss their Complaint after Defendants
issued their letter responses, and bring a new action under the
APA, challenging the denial of the petitions as “arbitrary and
capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A).
13

plaintiffs’ petition.” Families for Freedom, 628 F. Supp. 2d at 540
(emphasis added). By contrast, in this case, the Department of
Interior and Department of Agriculture “have made perfectly plain
that, at this time, they will not issue the certifications sought
by NPCA.” Defs.’ Reply 2. In the second case cited by Plaintiffs,
the agency refused “to give [petitioners] any answer for more than
six years.” In re Am. Rivers and Idaho Rivers United, 372 F.3d at
419 (emphasis in original). A rule forbidding Defendants from
expressing their openness to reassessing their position in the
future would only result in less flexible rulemaking and restrict
the discretion placed in the hands of the FMLs. 40 C.F.R. §
51.302(c)(1) (FMLs “may certify to the State, at any time, that
there exists reasonably attributable impairment of visibility in
any mandatory Class I Federal area.”).
Although it is true that Defendants left open the possibility
that they may initiate the type of rulemaking Plaintiffs want in
the future, they have also made clear that they are denying
Plaintiffs’ petitions at this time. The Court can no longer grant
any relief beyond that already provided by Defendants’ responses;
Plaintiffs’ claims are moot and therefore must be dismissed under
Rule 12(b)(1). Natural Res. Def. Council, 680 F.2d at 814 (the
court “can hardly order the [agency] . . . to do something that it
has already done.”); Sierra Club, 130 F. Supp. 2d at 82.

14

IV.

CONCLUSION
For the reasons set forth above, the Defendants’ Motion to

Dismiss is granted.
An Order will issue with this opinion.

June 30, 2011

/s/
Gladys Kessler
United States District Judge

Copies to: counsel of record via ECF

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