Posted by: Steven M. Taber | April 30, 2010

Center for Biological Diversity Files PM-10 Lawsuit Against EPA in U.S. District Court for the Northern District of California

On April 29, 2010, the Tucson- and San Francisco-based Center or Biological Diversity filed a citizen’s suit under the Clean Air Act against the U.S. Environmental Protection Agency alleging that the EPA failed:

to meet numerous deadlines for limiting dangerous pollution from tiny airborne particles. The EPA has violated the Clean Air Act and undermined public health by failing to determine whether areas in five western states are complying with existing air-pollution standards and by failing to ensure that states are implementing legally required plans to meet the standards.

The suit makes three claims.  First, that the EPA has a mandatory duty to make a determination whether 13 nonattainment areas in Alaska, Arizona, Idaho, Montana, and Nevada have attained the National Air Quality Standard for particulate matter less than 10 microns in diameter (“PM-10”).  Second, the lawsuit alleges that EPA has a mandatory duty to impose sanctions and create a Federal Implementation Plan (FIP) for PM-10 for two areas in Arizona where EPA has already made a finding of a failure to submit a sufficient State Implementation Plan.  Finally, the lawsuit claims that EPA has a mandatory duty to issue a determination that Montana has failed to submit a sufficient State Implementation Plan by the date it was required to do so.

The EPA has in the past been chided by courts for failing to live up to the deadlines in the Clean Air Act.  See, for example, Natural Resources Defense Council, Inc. v. EPA, 22 F.3d 1125 (D.C. Cir. 1994).  The problem with the Center for Biological Diversity’s suit is that, as the D.C. Circuit pointed out in the NRDC case, “[w]hile the Clean Air Act is very specific about the consequences of a state’s failure to meet the submittal deadline, the Act is silent on what should occur if the agency misses its” deadline.  22 F.3d at 1135.  In other words, there is some question as to whether the Center’s requested remedy of forcing EPA to take specific actions is legally defensible.

The EPA has, in the past, settled several other cases involving its nonperformance of mandatory duties.  For example, in Desert Rock Energy Co., LLC v. EPA, 2009 WL 3247312 (S.D. Tex. Sept. 29, 2009) the court mentions that Association of Irritated Residents v. Johnson, Civil Action No. 08-227 (N.D. Calif) “the parties sued the EPA and the EPA Administrator for failing to perform nondiscretionary duties by not acting on certain state implementation plans within the time lines set forth in section 11(k)(2) of the Act.”  Thus, this is not a new issue before the Northern District of California.

The Congress, when it wrote the Clean Air Act, did not contemplate that the EPA would be the sticking point, allowing the states to extend and ignore deadlines.  It will be interesting to see if this matter goes forward, or whether the EPA will settle this one as well.

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