WILDEARTH GUARDIANS, MIDWEST ENVIRONMENTAL DEFENSE CENTER, and SIERRA CLUB, Plaintiffs-Appellants,
GINA MCCARTHY, in her official capacity as Administrator of the Environmental Protection Agency, Defendant-Appellee
Argued and Submitted, San Francisco, California:
October 10, 2014.
Appeal from the United States District Court for the Northern District of California. D.C. No. 4:11-cv-05651-YGR. Yvonne Gonzalez Rogers, District Judge, Presiding.
The panel affirmed the district court's dismissal for lack of subject matter jurisdiction of plaintiff environmental groups' Clear Air Act citizen-suit action seeking to require the Environmental Protection Agency's Administrator to issue revised regulations governing ozone pollution.
The Clean Air Act's citizen-suit provision, 42 U.S.C. § 7604, authorizes suits against the EPA's Administrator only for actions where there is an alleged failure by the Administrator to perform an act or duty which is not discretionary with the Administrator. In 1977, Congress added a new program to the Clean Air Act, known as the Prevention of Significant Deterioration (PSD) program, to prevent air quality from significantly deteriorating in areas that already had relatively clean air. Section 166(a) of the Clean Air Act required the EPA to issue regulations implementing the PSD program, and plaintiffs alleged that the Administrator had a nondiscretionary duty to issue revised ozone regulations under § 166(a).
The panel held that given § 166(a)'s ambiguity, the existence of a nondiscretionary duty to promulgate revised PSD regulations for ozone was not clear cut or readily ascertainable from the statute. The panel concluded that this was enough to preclude plaintiffs' reliance on § 7604(a)(2) as the jurisdictional basis for their suit.
David Bender (argued) and Christa Westerberg, McGillivray, Westerberg & Bender, Madison, Wisconsin; Robert Ukeiley, Berea, Kentucky; Kristin Henry, Sierra Club, San Francisco, California; James Jay Tutchton, WildEarth Guardians, Centennial, Colorado, for Plaintiffs-Appellants.
Robert Lundman (argued), Ignacia Moreno, Assistant Attorney General, Eileen McDonough, and David Gunter, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Brian Doster and Melina Williams, Office of General Counsel, Environmental Protection Agency, for Defendant-Appellee.
Before: William C. Canby, Jr., William A. Fletcher, and Paul J. Watford, Circuit Judges. Opinion by Judge Watford.
WATFORD, Circuit Judge:
Plaintiffs WildEarth Guardians, Midwest Environmental Defense Center, and Sierra Club are organizations dedicated to environmental conservation. They believe the Environmental Protection Agency (EPA) has been derelict in its duty to protect the nation's air from ground-level ozone pollution. They sued the EPA's Administrator in federal district court, seeking an order that would force the Administrator to issue revised regulations governing ozone pollution.
Plaintiffs invoked the Clean Air Act's citizen-suit provision, 42 U.S.C. § 7604, as the sole basis for subject matter jurisdiction. That provision authorizes suits against the Administrator, but only for actions " 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." § 7604(a)(2) (emphasis added). Plaintiffs contend the Administrator has a nondiscretionary duty to issue revised ozone regulations under § 166(a) of the Clean Air Act, 42 U.S.C. § 7476(a). The district court held that the statute permits, but does not require, the Administrator to issue such regulations and therefore dismissed plaintiffs' claim for lack of subject matter jurisdiction. To facilitate immediate appeal, the court granted plaintiffs' request to enter final judgment on that claim under Federal Rule of Civil Procedure 54(b).
The only issue on appeal is whether plaintiffs have adequately alleged the violation of a nondiscretionary duty. Before we discuss the parties' competing interpretations of § 166(a), a brief ...