The U.S. District Court for the Northern District of California has given the U.S. Environmental Protection Agency (EPA) deadlines by which it must act on a San Joaquin Valley Air Pollution Control District plan for managing ozone air pollution, in a win for a community group that sued the agency in an effort to force its hand.

Ruling on competing motions for summary judgment last month, U.S. District Judge Yvonne Gonzalez Rogers granted most of the motion filed by the Association of Irritated Residents (AIR) in its lawsuit accusing the EPA of taking too long to approve or reject the San Joaquin Valley Air Pollution Control District’s 2016 plan for implementing a 2008 ozone standard rule. [Association of Irritated Residents v. U.S. Environmental Protection Agency et al, ___F.Supp.3d___, Case No. 3:18-cv-01604(N.D. Cal. July 24, 2018).]

Background

The federal Clean Air Act (CAA) “sets forth a cooperative state-federal scheme for improving the nation’s air quality.” Vigil v. Leavitt, 381 F.3d 826, 830 (9th Cir. 2004). Under [the Clean Air Act (CAA)] scheme, the EPA EPA must establish National Ambient Air Quality Standards (NAAQS) that limit concentrations of six “criteria air pollutants” in the outside air. 42 U.S.C. §§ 7408(a)(1), 7409(a), (b). Among these six regulated pollutants is ground-level ozone, a gas that forms when oxides of nitrogen react with volatile organic compounds in the presence of sunlight. The standard at issue here is the NAAQS for ground-level ozone that EPA issued in 2008 (2008 Ozone NAAQS).

After the EPA issues a new or revised NAAQS, it must designate areas as either attaining or not attaining that standard. Id.§ 7407(d)(1). Areas that do not meet an ozone NAAQS—“nonattainment areas”—may be further classified as “marginal,” “moderate,” “serious,” “severe,” or “extreme,” depending on the amount by which ozone concentrations in those areas exceed the applicable NAAQS. Id. § 7511(a).

States have primary responsibility for ensuring that their air quality meets the standards set by the EPA. Id. § 7407(a). To that end, States must develop State Implementation Plans (SIPs) that provide for the attainment, maintenance, and enforcement of the NAAQS in each air quality control region within their borders. Id.§§ 7410(a)(1), (2).

This case concerns California’s plan for implementing the 2008 Ozone NAAQS in the San Joaquin Valley (2016 Ozone Plan). Because the San Joaquin Valley has been classified and designated as an extreme nonattainment area for the 2008 Ozone NAAQS, the 2016 Ozone Plan must demonstrate that the state will reduce emissions of ozone precursors in the area by an average of three percent per year, as compared to a baseline year.

The San Joaquin Valley Unified Air Pollution Control District (District) approved the 2016 Ozone Plan at a public hearing on June 16, 2016. The District then submitted the 2016 Ozone Plan to the California Air Resources Board (CARB). Following a separate round of notice and comment, on July 21, 2016, CARB approved the 2016 Ozone Plan as a revision to California’s state implementation plan. On August 24, 2016, CARB submitted the 2016 Ozone Plan to EPA for action under § 7410(k). On December 19, 2016, the EPA determined that the 2016 Ozone Plan was complete, a finding that triggered the agency’s duty to approve or disapprove the 2016 Ozone Plan within 12 months. Thereafter, on February 16, 2018, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in South Coast Air Quality Management District v. Environmental Protection Agency, 882 F.3d 1138 (D.C. Cir. 2018) (South Coast), a case concerning several provisions of the Plan Requirements Rule, including the provision allowing for the use of alternative baseline years—the very provision on which the San Joaquin Valley District relied in choosing the 2016 Ozone Plan’s 2012 baseline year. In its decision, the Court in South Coastannounced its intention to vacate the alternative baseline provision of the Plan Requirements Rule. Thereafter, the EPA filed a petition for rehearing. Briefing is still outstanding on the petition. As a result, the EPA has not acted on the 2016 Ozone Plan.

In March AIR filed its lawsuit in the United States District Court for the Northern District of California seeking to compel the EPA to act on the 2016 Ozone Plan. (See,https://www.epa.gov/sites/production/files/2018-03/documents/air_complaint_3.18cv1604_03142018.pdf)

In April AIR filed a motion for summary judgment seeking an order declaring that the EPA had failed to act on the plan and requiring the agency to do so by no later than Dec. 19. In its opposition to the motion, the EPA conceded that it failed to act on the plan and said it could make a decision about nine of the plan’s 13 components by that date. It also brought its own summary judgment motion seeking an extended period of time until at least March 19, 2019, to act on the plan’s four other elements.

The District Court’s Decision

On July 24, 2018, Judge Gonzalez Rogers ordered the EPA to act on the nine plan components by Dec. 19, siding with AIR in that regard. As for the other four plan elements, she gave the agency until Jan. 31, 2019—extra time, but not as much as it had requested. “The court finds unreasonable EPA’s request for nearly thirteen additional weeks,” the judge wrote, adding, “at most, an additional extension of six weeks is appropriate.”

Judge Gonzalez Rogers also rejected the EPA’s motion to stay the lawsuit pending the outcome in South Coast. In seeking a stay the EPA argued that without a stay it would be forced to act on the 2018 Ozone Plan “without knowing the law governing” parts of it, due to the continuing dispute on the issue in the D.C. Circuit. The court, however, stated that:

• . . .to grant a stay in this case would undermine the statutory timetable articulated by the CAA, interfere with AIR’s capacity to enforce provisions of the 2016 Ozone Plan, and undercut the public interest in enforcement of the CAA.

The court concluded that as a result, the EPA has failed to establish:

• . . .that the instant case is one of the ‘rare circumstances’ in which ‘a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.’

Conclusion And Implications

In the instant matter, it was clear to all parties that the EPA had failed to comply with its mandated duties within the statutorily prescribed time period. While a court should compel an agency to correct any statutory violations as quickly as possible, it should not be so quickly that the court’s order calls on the agency “to do impossibility.” Courts have recognized two categories of circumstances that might delay agency action so as to render compliance with a particular deadline infeasible: 1) budgetary and manpower constraints; and 2) the need for an agency to have more time to sufficiently evaluate complex technical issues. National Res. Def. Council v. Train, 510 F.2d 692, 712-713 (D.C. Cir. 1975). Here, the court recognized that the EPA might need more time to evaluate issues that became more complex after issuance of the decision in South Coast. It, however, concluded that the EPA’s extension until March 2019 was unreasonable. It, therefore, compromised and exercised its flexible equitable powers by giving the EPA until January 31, 2019, to act on the plan’s final four elements.

The court’s ruling can be found here: https://www.pacermonitor.com/public/case/23934890/Association_of_Irritated_Residents_v_United_States_Environmental_Protection_Agency_et_al.

(David D. Boyer)