EPA CRITICIZED

BY STATE AND INDUSTRY GROUPS

FOR LACK OF GOOD FAITH PROCEDURE

IN PROPOSED CLEAN AIR ACT DECREE

 

January 20, 2000

        Your Website host, together with the Chicagoland Chamber of Commerce, the Illinois Steel Group and the Illinois EPA have filed comments challenging EPA's announced intention to have the future schedule of local implementation plans under the Clean Air Act decided by a Washington, D.C. district court.   The comments filed by the business groups challenge the jurisdiction of a District Court to mandate a schedule for the EPA Administrator for promulgations of  rules specific to localities elsewhere than the Court's district.  In your Website host's view and research, this appears an unprecedented action by USEPA.  The judicial review provisions of the Clean Air Act indicate that where there are actions concerning local plan promulgations, they are to be raised in the local Circuit.

        In a letter to the EPA, the Illinois EPA has indicated that US EPA had taken actions that were "not appropriate" to keep details of the proposed Decree secret from the interested States.  "The EPA in fact proceeded in a manner that does not reflect good faith dealing with its states.," according to the Illinois EPA comment.

        An excerpt from the legal argument in the comment your host submitted is appended below:

 

In Re the Proposed Consent Decree

In the case of

NRDC et al v EPA

Civ. No. 99-CV-02976

(U.S. District Court for

the District of Columbia Circuit)

 

TO:  Hon. Carol Browner, as Administrator of the EPA

 

 

RE: Comment in Opposition to Entry of the Proposed Consent Decree

 

            The Chicagoland Chamber of Commerce and the Illinois Steel Group, as member organizations whose members include numerous businesses and industrial concerns in the Greater Chicago Area (consisting of several counties in Illinois and including Lake and Porter Counties in Indiana), and James Harrington, Mary Jo Williams and Harvey M. Sheldon, as individual residents of the Chicago Air Quality Control Region file this Comment for the consideration of the United States Environmental Protection Agency and other interested persons, in opposition to entry of the Consent Decree proposed in the case of Natural Resources Defense Council, et al. Vs. Environmental Protection Agency, No.99-2976 (USDC,DC).

 

            This Comment in Opposition is filed for EPA’s full and formal consideration, in response to the Notice in the Federal Register dated December 21, 1999 (64 FR 71453).

 

            EPA should not enter the Decree because: a) the Plaintiffs are not entitled to seek mandatory issuance of local implementation plans in the federal district court for the District of Columbia Circuit, b) the EPA has a duty to uphold the federal structure of the Clean Air Act and oppose the Complaint; c) the relief sought is not required, nor has EPA been derelict in implementing the one-hour standards for air quality; and d) the Consent Decree would result in inappropriate resource allocation and rule development.  Specific amplification of our views follows:

 

I.                    JURISDICTION OF ACTIONS OF THE ADMINISTRATOR DEALING WITH PROMULGATION OF IMPLEMENTATION PLANS IS VESTED EXCLUSIVELY IN THE CIRCUIT AND DISTRICT COURTS IN LOCAL AREAS REGULATED BY THE ACTIONS SOUGHT OR REVIEWED

 

Plaintiffs assert that the Administrator has a mandatory duty to promulgate a set of rules known as a Federal Implementation Plan for specific air quality regions in the United States.  Plaintiffs claim that the Administrator has delayed beyond the time allowed by the Clean Air Act to take this and related action.  The rules Plaintiffs wish to mandate would deal specifically with attainment of the so-called one-hour ozone air quality standard in 21 specific locations other than the District of Columbia.  Plaintiffs cite Section 304(a)(2) as the primary basis for the Court’s jurisdiction.

 

Section 304 (a) of the Clean Air Act provides:

        (42 U.S.C. Sec. 7604) Citizen suits

 

(a) Authority to bring civil action; jurisdiction.


Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf -

(1)    against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation,


 (2) against the Administrator where there             is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator, or

        (3) against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under part C of subchapter I of this chapter (relating      to significant deterioration of air quality) or part D of subchapter I of this chapter (relating to nonattainment) or who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of any condition of such permit.



    The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case     may be, and to apply any appropriate civil penalties (except for actions under paragraph (2)). The district courts of the United States shall have jurisdiction to compel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed, except    that an action to compel agency action referred to in section 7607(b) of this title which is unreasonably delayed may only be filed in a United States District Court within the circuit in which such action would be reviewable under section 7607(b) of this title.  In any such action for unreasonable delay, notice to the entities referred to in subsection (b)(1)(A) of this section shall be provided 180 days before commencing such action. (emphasis added)



As EPA will observe, the final paragraph of Section 304(a) makes clear the requirement that where there is “an action to compel agency action referred to in 7607(b) of this title [Act, Section 307 (b)] which is unreasonably delayed may only be filed in a United States District Court within the Circuit in which such action would be reviewable under section 7607(b) [Act, Section 307(b)] of this title.”

 

Reference to Section 307 (b) demonstrates that although a number of actions by the Administrator are of a type reviewable in the District of Columbia Circuit Court of Appeals, state and federal implementation plans (“the Administrator’s action in approving or promulgating any implementation plan under Section 110 or Section 111 (d)”) are reviewable “only in the United States Court of Appeals for the appropriate circuit”.  In the case of Chicago area plans, for example, only the Seventh Circuit may review their promulgation.   That being true, only a District Court within the Seventh Circuit has jurisdiction of cases dealing with unreasonable delay in the performance of mandatory duties.  Cf. New York v. EPA, 133 F.3d 987 (7th Cir. 1998).  In the case of Chicago, only the Northern District of Illinois District Court may hear this case.

 

This is not a case where the Consent Decree sought merely goes beyond what a Court might or could order, such as the situation in Sierra Club v Browner, 1994 WL  750290 (D.D.C.) (Alyeska Pipeline Intervention, Mem. Op. Sept. 20, 1994).  This is a case where on its face Plaintiffs’ Complaint seeks orders of promulgation of local area implementation plans that are beyond the jurisdiction of the District of Columbia courts.  

 

This Complaint is unprecedented.  In the tiny number of District Court decision in the District of Columbia Circuit that involved a Clean Air Act  “citizens’ suit” under Section 304, the District Court has always heretofore been asked either to deal with a plainly “national in scope” issue or the District Court has concluded that jurisdiction was in another Court.[1]

 

Putting the matter bluntly, it appears to the undersigned that the Plaintiff environmental groups and the EPA are proposing to run roughshod over the federal structure of the Clean Air Act and induce the District Court of the District of Columbia to start running clean air compliance schedules in other States and localities.  EPA has no authority to confer jurisdiction on the District Court, and as a governmental entity of the Executive Branch, it should be exerting its power to resist improper applications of the Clean Air Act such as are embodied in the Complaint.

 


[1] A Westlaw and notation search for citizen suits under Section 304 (a) in the District Courts of the District of Columbia has found only four cases additional to the above-cited Sierra Club vs. Browner Memorandum Opinion.  In one, orders are sought to compel clearly national rules: Natural Resources Defense Council v. Ruckelshaus 21 ERC 1953, 1984WL 6092 (Sept. 14, 1984 Mem. Op.) (deals with national rules for heavy duty vehicles), and in the other, Save the Valley, Inc. v Ruckelshaus 565 F.Supp 709 ((1983), the decision deals with a general duty regarding major source permit review.  Although the memorandum opinion mentions a specific permit, it is unpersuasive and also inapposite here because it does not deal with a duty to promulgate an implementation plan.  The other two cases kick the Plaintiffs out of the District Court: Center for Auto Safety v. E.P.A., 558 F.Supp. 103 (1983) and Environmental Defense Fund v. Costle, 448 F.Supp. 89 (1978).