772 F.3d 1179
9th Cir.2014Background
- Plaintiffs (WildEarth Guardians, Midwest Environmental Defense Center, Sierra Club) sued the EPA Administrator under the Clean Air Act citizen-suit provision, 42 U.S.C. § 7604(a)(2), alleging EPA failed to promulgate revised PSD (Prevention of Significant Deterioration) regulations for ozone.
- Section 166(a), added in 1977, required EPA to promulgate PSD regulations for four named pollutants within two years and directed EPA to promulgate regulations "in the case of pollutants for which [NAAQS] are promulgated after August 7, 1977" within two years of promulgation.
- Plaintiffs argued that § 166(a)’s second sentence imposes a nondiscretionary duty to revise PSD regulations whenever NAAQS are revised (including the 2008 ozone NAAQS revision).
- EPA argued the second sentence applies only to pollutants whose NAAQS were first promulgated after August 7, 1977, so it imposes a one-time duty that does not cover revisions to existing NAAQS like ozone.
- The district court dismissed for lack of subject-matter jurisdiction, holding § 166(a) does not clearly impose a nondiscretionary duty to promulgate revised PSD rules for ozone; judgment entered under Rule 54(b) to permit immediate appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 166(a) imposes a nondiscretionary duty to promulgate revised PSD regulations after NAAQS revisions | § 166(a)’s second sentence reaches all pollutants and mandates PSD revisions within two years of any NAAQS revision (including 2008 ozone NAAQS) | § 166(a)’s second sentence applies only to pollutants whose NAAQS are first promulgated after Aug. 7, 1977, so it does not require PSD revisions for ozone | Court held plaintiffs did not demonstrate a clear, nondiscretionary statutory command; jurisdiction under § 7604(a)(2) lacking |
Key Cases Cited
- Our Children’s Earth Found. v. EPA, 527 F.3d 842 (9th Cir. 2008) (requiring a clear, unequivocal statutory command to establish a nondiscretionary duty under citizen-suit provision)
- Farmers Union Cent. Exch., Inc. v. Thomas, 881 F.2d 757 (9th Cir. 1989) (interpretation of citizen-suit jurisdiction requiring clear statutory duty)
- Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461 (2004) (definition and scope of PSD program and applicability to attainment/unclassifiable areas)