WildEarth Guardians and the San Juan Citizens Alliance filed A Clean Air Act citizens’ suit in the U.S. District Court for the District of Columbia on January 14, 2009, against the U.S. EPA for its failure to update regulations related to oil and gas drilling.
The Clean Air Act requires the EPA to review and update certain regulations every eight years. The Plaintiffs allege that the EPA has failed to “review, and if appropriate, revise”
- “New Source Performance Standards” (NSPS) under Section 111 of the Clean Air Act (43 U.S.C. 7411) for oil and gas drilling that were first promulgated in 1985;
- “Maximum Achievable Control Technology” (MACT) standards under Section 112 of the Clean Air Act (see, 42 U.S.C. 7412(c)(2) and (d)) for oil and gas drilling that were first promulgated in 1999;
- “Residual Risk” standards under Section 112(f)(2) of the Clean Air Act (42 U.S.C. 7412(f)(2)), which are required to provide an “ample margin of safety to protect public health: or “to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect.” The Complaint alleges that the EPA has failed to determine whether to issue Residual Risk Standards as they relate to oil and gas drilling.
The critical factor in this lawsuit is not going to be whether the EPA revised the NSPS, MACT and Residual Risk s standards, but whether the actions called for in the Clean Air Act are “discretionary” or not. The citizens’ suit provision of the Clean Air Act under which the Groups are suing specifically states that a cause of action only lies 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.” 42 U.S.C. 7604(a)(2)(emphasis added).
All of the standards mentioned in the lawsuit state that the Administrator “shall” promulgate regulations. See, 111(b)(1)(A), and 112(d)(1); 42 U.S.C. 7411(b)(1)(A) and 7412(d)(1). However, once the regulations are promulgated the requirement is not revise or update the regulation, but “the Administrator shall, at least every eight years, review and, if appropriate, revise such standards.” 42 U.S.C. 7411(b)(1)(B); see also, 42 U.S.C. 7412 (“the Administrator shall review, and revise as necessary . . . emissions standards promulgated under this section no less often than every 8 years”). While the duty to review is non-discretionary, what constitutes proper “review” under the Clean Air Act is not clear.
In other words, while there probably will be no significant battle over whether the EPA actually revised the rules, the real battle will be whether the EPA reviewed the rules. EPA was not required to revise the rules, only review them. To win this lawsuit, the Groups must show that the EPA did not even review the rule.
In a similar lawsuit, filed in the U.S. District Court for Colorado, Colorado Citizens Against Toxic Waste, Inc. and Rocky Mountain Clean Air Act Action are taking on the EPA (Colorado Citizens Against Toxic Waste, Inc. v. EPA, Case No. 08-01787 (D.Colo.)) over its failure to “review, and if appropriate, revise” regulations concerning emissions of radioactive radon gas at new uranium mills. See, 42 U.S.C. 7412(q)(1). There, the EPAhas sought to dismiss the case on the basis that the six-year statute of limitations has run barring Plaintiffs from bringing the lawsuit. Plaintiffs have, of course, alleged a continuing violation by the EPA thereby defeating any running of the statute of limitations. The Court has yet to rule on the EPA’s Motion to Dismiss. The question that remains is whether the EPA will take the same absurd position in the WildEarth Guardians case?