320 F. Supp. 3d 722
D. Maryland2018Background
- Maryland filed a §126(b) petition (Nov. 26, 2016) asking EPA to find 36 upwind EGUs in five states were significantly contributing to Maryland’s nonattainment of the 2008 ozone NAAQS.
- EPA (and Administrator Pruitt) granted itself a six‑month extension under 42 U.S.C. §7607(d)(10) but failed to hold a public hearing or take final action by the extended deadline.
- Maryland and several environmental organizations sued under the CAA citizen‑suit provision, alleging EPA failed to perform a nondiscretionary duty to grant or deny the §126(b) petition within the statutory timeframe.
- Defendants conceded liability (failure to act) but sought an extended schedule (until Dec. 31, 2018) to take final action, citing technical complexity, internal procedures, and resource constraints.
- EPA submitted a declaration outlining its proposed multi‑step process (modeling, policy determinations, proposed Federal Register notice, hearing, comment, final action); plaintiffs submitted expert evidence disputing the necessity of the full delay.
- The Court found EPA violated a nondiscretionary statutory duty and exercised equitable power to set a shorter, enforceable deadline: final action (grant or deny) on Maryland’s petition by Sept. 15, 2018.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA failed to perform a nondiscretionary duty under the CAA to grant or deny a §126(b) petition within the statutory time | Maryland: EPA must hold a hearing and grant or deny within 60 days; EPA missed the deadline | EPA: acknowledged failure but argued need for more time (complexity, coordination, resource limits) | Court: EPA conceded duty and liability; plaintiffs entitled to summary judgment on failure to act |
| Whether the court may order relief compelling EPA to act | Plaintiffs: Court can order performance of nondiscretionary duties under §7604(a)(2) | EPA: relief should account for practical infeasibility; requested extended schedule | Court: has equitable power to set enforceable deadlines; may extend but must scrutinize impossibility claims |
| Whether EPA demonstrated impossibility or utmost diligence to justify its proposed schedule | Plaintiffs: EPA did not show impossibility or utmost diligence; expert says EPA could expedite | EPA: complexity of ozone transport, need for new methodology/policy, pending related petitions, limited staff/resources | Court: EPA failed heavy burden to show impossibility or utmost diligence; generalized resource/priority claims insufficient |
| Appropriate remedy schedule (how long to decide) | Plaintiffs: order decision within 60 days of court order | EPA: needs until Dec. 31, 2018 to act and coordinate multiple petitions | Court: 60 days unreasonable; ordered EPA to hold hearing per its plan and take final action by Sept. 15, 2018 (compromise) |
Key Cases Cited
- Maggio v. Zeitz, 333 U.S. 56 (1948) (equity does not require impossible performance)
- NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1974) (courts may set enforceable intermediate and ultimate deadlines for agencies)
- Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. Cir. 1979) (agency bears heavy burden to show impossibility)
- Sierra Club v. Thomas, 658 F. Supp. 165 (N.D. Cal. 1987) (infeasible schedules should not be imposed to punish agencies; courts may extend time pragmatically)
- Sierra Club v. Ruckelshaus, 602 F. Supp. 892 (N.D. Cal. 1984) (agency delay does not justify indefinite discretion over nondiscretionary duties)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standards for Article III standing)