SOUTHERN ILLINOIS POWER COOPERATIVE, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY and Scott Pruitt, Administrator, Respondents.
Nos. 16-3398 & 17-1442
United States Court of Appeals, Seventh Circuit.
July 12, 2017
861 F.3d 666
Argued May 30, 2017
We REVERSE the grant of summary judgment, and we REMAND for further proceedings consistent with this opinion.
protected activity and an adverse employment action, evidence of “suspicious timing” alone is insufficient to find a causal connection. See Lalvani, 269 F.3d at 791 (“[T]here will be cases in which a plaintiff can demonstrate causation despite a substantial time lag. This, however, is not one of them. Other than pure speculation [plaintiff] offers nothing to support a causal connection.“) (citation omitted); Boston v. U.S. Steel Corp., 816 F.3d 455, 464 (7th Cir. 2016) (fifteen-month gap too long to establish causal connection when plaintiff did “not cite any evidence that demonstrates that her supervisor knew about the 2010 EEOC charge“); Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 481 (7th Cir. 2010) (year-long gap is insufficient evidence of causal connection when plaintiff presented “no other factual or legal theory linking [protected activity] to her termination“); Turner v. The Saloon, Ltd., 595 F.3d 679, 687 (7th Cir. 2010) (suspicious timing, without more, is insufficient to establish causal connection when gap is over half a year); Haywood v. Lucent Tech., Inc., 323 F.3d 524, 532 (7th Cir. 2003) (plaintiff provided “nothing to establish causation” other than “pure speculation” and one-year gap was “far too long—at least on this record—to allow a reasonable fact-finder to infer that her termination was causally related to the filing of her complaint“), overruled in part on other grounds, Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016); Filipovic v. K&R Express Sys., Inc., 176 F.3d 390, 399 (7th Cir. 1999) (no causal connection when gap is four months and plaintiff “has not presented any direct evidence of causal connection“); Salvato v. Illinois Dep‘t of Human Rights, 155 F.3d 922, 925 (7th Cir. 1998) (six-month gap, without other evidence, is insufficient evidence to find causal connection); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998) (five-month gap, without other evidence, is insufficient evidence to find causal connection); Hughes v. Derwinski, 967 F.2d 1168, 1174 (7th Cir. 1992) (four-month gap “standing by itself” does not establish a causal connection).
David M. Loring, Attorney, Schiff Hardin LLP, Chicago, IL, for Petitioner (Case No. 16-3398).
Dustin J. Maghamfar, Attorney, Department of Justice, Environmental Enforcement Section, Avi S. Garbow, Attorney, Environmental Protection Agency, Washington, DC, Bharat Mathur, Attorney, Environmental Protection Agency, Region 5, Office of the Regional Counsel, Chicago, IL, for Respondents.
SYKES, Circuit Judge.
Southern Illinois Power Cooperative seeks review of a final rule of the Environmental Protection Agency designating Williamson County, Illinois, as a nonattainment area for national air quality standards for sulfur dioxide. The rule in question is not limited to Williamson County; it makes attainment designations for 61 geographic areas spanning 24 states. The EPA moves to dismiss or transfer the petition to the D.C. Circuit under the terms of the judicial-review provision of the Clean Air Act, which designates that circuit as the exclusive venue for review of “nationally applicable” agency actions.
I. Background
The Clean Air Act “establishes a comprehensive program for controlling and improving the nation‘s air quality through both state and federal regulation.” Sierra Club v. EPA, 774 F.3d 383, 386 (7th Cir. 2014). The Act directs the EPA to establish National Ambient Air Quality Standards, which set the “maximum permissible atmospheric concentrations for certain harmful air pollutants.” Indiana v. EPA, 796 F.3d 803, 804 (7th Cir. 2015); see
In 2010 the EPA revised the national air quality standards for sulfur dioxide. See Primary National Ambient Air Quality Standard for Sulfur Dioxide, 75 Fed. Reg. 35,520 (June 22, 2010) (as codified at 40 C.F.R. pts. 50, 53, and 58). The agency did not have sufficient information to complete the initial compliance designations within two years, so it took advantage of a one-year extension allowed by statute. See
The Sierra Club and the National Resources Defense Council sued the agency alleging that it had failed to carry out a nondiscretionary duty under the Clean Air Act. The parties ultimately negotiated a consent decree in which the EPA agreed to issue the remaining designations in multiple rounds by 2020. See Sierra Club v. McCarthy, No. 3:13-cv-3953-SI, Consent Decree (N.D. Cal. Mar. 2, 2015).
After entering the consent decree, the EPA solicited updated recommendations from the states. Illinois promptly responded. As relevant here, state regulators recommended that the EPA designate Williamson County in southern Illinois as an attainment area. The EPA reviewed the proposed designations from the state regulators and in due course announced its intention to reject their recommendation for Williamson County and instead designate it as an area of nonattainment. The EPA attached a technical-support document explaining that the modeling method used by the state regulators was flawed. The EPA solicited public comments on the proposed designation.
Southern Illinois Power Cooperative, which operates a large power plant in Williamson County, submitted public comments opposing the nonattainment designation. The Cooperative challenged the technical basis for the EPA‘s designation and submitted alternative modeling results showing that the area surrounding the power plant met the new air quality standard. The EPA reviewed the comments but was unmoved.
In July 2016 the EPA promulgated a final rule listing and explaining its Round 2 Designations. See Air Quality Designations for the 2010 Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard—Round 2, 81 Fed. Reg. 45,039 (July 12, 2016) (as codified at 40 C.F.R. pt. 81). The rule contained attainment designations for 61 additional areas across 24 states, id. at 45,040, and included a nonattainment designation for Williamson County, id. at 45,047.
The Cooperative filed a timely petition for review with this court under the judicial-review provision of the Clean Air Act,
The EPA moved to dismiss the petition for lack of jurisdiction or improper venue under
The Cooperative opposed the motion, relying heavily on our decision in Madison Gas. After reviewing the EPA‘s motion and the Cooperative‘s response, we noted a conflict between the approach we took in Madison Gas and the text of
II. Analysis
The Clean Air Act assigns judicial review of EPA actions to either the D.C. Circuit or the appropriate regional circuit based on the nature of the agency action in question. The Act‘s venue provision separates reviewable agency actions—typically, final rules—into three distinct categories and allocates venue accordingly (the statute is quite verbose, so we paraphrase here and quote only the key operative language):
- a petition for review of a “nationally applicable” final agency action “may be filed only in the United States Court of Appeals for the District of Columbia“;
- a petition for review of a final agency action that is “locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit“; except that
- a petition for review of a “locally or regionally applicable” agency action must be filed in the D.C. Circuit if the agency action “is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”
This case clearly falls in the first basket. The Cooperative seeks review of the EPA‘s Round 2 Designations, a final rule of broad geographic scope containing air quality attainment designations covering 61 geographic areas across 24 states—from New York to Hawaii—and promulgated pursuant to a common, nationwide analytical method. A rule with these characteristics is “nationally applicable” within the meaning of
The Cooperative insists that the Round 2 Designations are just an amalgamation of many different locally or regionally applicable agency actions and notes that its petition challenges only one: the EPA‘s designation of Williamson County as a nonattainment area. That‘s not an accurate description of the petition, which is just a one-paragraph pleading seeking review of the rule and attaching a copy. There are no details in the petition about the scope or nature of the Cooperative‘s challenge; that information has come to the fore in the briefing on the EPA‘s motion. More importantly, the Cooperative‘s petition-focused approach to the venue question cannot be squared with the plain language of
The Cooperative‘s argument to the contrary rests largely on our decision in Madison Gas. There we held that a petition challenging “an element of a national program” based on an “entirely local factor” could be brought in the regional circuit court. 4 F.3d at 530-31. Madison Gas, a Wisconsin electrical utility, sought review of a final EPA rule that allocated tradable pollution allowances to electrical generating facilities across the country. Id. at 530. This national system, designed to curb acid rain, was based on each facility‘s generating capacity, and Madison Gas contested the EPA‘s calculation of the generating capacity at three of its Wisconsin plants. Id. The EPA moved to dismiss for improper venue, arguing that because the rule in question was clearly nationally applicable—it allocated pollution allowances nationwide—the D.C. Circuit was the exclusive venue for judicial review. Id.
We rejected the EPA‘s argument, reasoning that “[i]f Madison were challenging a national feature of the acid-rain program, such as the tradability of emission allowances, it would be plain that its challenge could be brought only in the D.C. Circuit, even if the impact of the program varied greatly across the country.” Id. And “[i]t would be equally clear that the challenge could be brought only in a regional circuit if the challenge were to a state implementation plan or some other regulation avowedly local or regional rather than national in its scope.” Id. The utility‘s petition, we said, was “the intermediate case“: Madison is challenging an element of a national program—for the program involves allocating allowances to all the
It should be clear from our earlier discussion of the language of
The Tenth Circuit noted this flaw in our reasoning in ATK Launch Systems. There the petitioners sought review of a final rule that—much like the rule at issue in this case—listed attainment and nonattainment designations for the EPA‘s air quality standards (in that case it was the agency‘s 2006 standards for fine particulate matter). 651 F.3d at 1195. Though the petitioners contested the nonattainment designations of just two counties in Utah, id., the rule in question “enumerate[ed] designations for areas across the country,” id. at 1196. The EPA moved to dismiss or transfer the petition, arguing that the rule was nationally applicable and the D.C. Circuit was the exclusive forum for judicial review. Id. at 1195.
The Tenth Circuit agreed and transferred the petition, explaining that “[t]he language of [the venue] provision makes clear that this court must analyze whether the regulation itself is nationally applicable, not whether the effects complained of or the petitioner‘s challenge to that regulation is nationally applicable.” Id. at 1197. The court reasoned: “That the regulation reaches geographic areas from coast to coast and beyond is, at a minimum, a strong indicator that the regulation is nationally applicable.” Id. The court noted another key indicator of national applicability: The EPA had applied “a uniform process and standard across the country” in promulgating the nationwide rule. Id. The Tenth Circuit went on to consider and reject the “intermediate case” approach announced in Madison Gas:
To the extent that Madison Gas suggests ... that the manner in which a petitioner frames his challenge to a regulation may alter the court in which the suit belongs, that suggestion is inconsistent with the language of the Act‘s judicial review provision.... The provision assigns to the D.C. Circuit all challenges to “nationally applicable regulations,” not, for instance, all national challenges or all challenges that will have national effect. See
42 U.S.C. § 7607(b)(1) . The nature of the regulation, not the challenge, controls.
In a similar vein, the D.C. Circuit has remarked that the distinction drawn in Madison Gas is “rather elusive” in practice. Texas Mun. Power Agency v. EPA, 89 F.3d 858, 867 (D.C. Cir. 1996). Because the procedural posture of Texas Municipal Power did not require the D.C. Circuit to decide whether to accept or reject the approach we took in Madison
We might be able to avoid a collision with Madison Gas if this case could be meaningfully distinguished. It cannot be. Both Madison Gas and this case involve EPA rules of national applicability that explain and list in table format the agency‘s determinations about areas and entities across the country: here, the sulfur-dioxide attainment designations for 61 geographic areas in 24 states; in Madison Gas, the allocation of acid-rain allowances to utilities in 47 states and the District of Columbia. Madison Gas, 4 F.3d at 530; see Acid Rain Allowance Allocations and Reserves, 58 Fed. Reg. 15,634, 15,651-15,704 (Mar. 23, 1993) (as codified at 40 C.F.R. pts. 72, 73, and 75). The two cases are materially the same. If we apply the petition-centric approach of Madison Gas, the case may remain in this circuit; if we apply
So a confrontation with Madison Gas cannot be avoided. We now conclude that the approach announced in that case cannot be reconciled with the plain text of
It‘s worth noting that the Cooperative does not defend the reasoning in Madison Gas, relying instead on the principle that stare decisis carries special force in the domain of statutory interpretation. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008). That‘s an accurate statement of the doctrine, but the principle is not without limits. As we have shown, Madison Gas directly contradicts the venue statute‘s plain text; the petition-centered approach adopted in that case allows review of a single, nationally applicable EPA rule in both the D.C. Circuit and the regional circuits (based on local factors or effects). Under that approach, 12 circuit courts could rule on issues arising from a single, national EPA rule, utterly defeating the statute‘s obvious aim of centralizing judicial review of national rules in the D.C. Circuit.
Madison Gas also introduces needless uncertainty into the determination of venue, where the need for clear rules is especially acute. A petition for review of an EPA action is not normally accompanied by a statement of the basis for the petitioner‘s challenge. As we‘ve noted, the Cooperative‘s petition did not contain such a statement; it was a bare-bones, one-page pleading simply citing the EPA rule, attaching a copy, and asking for judicial review. If, as Madison Gas implicitly holds, the nature and scope of the petitioner‘s challenge dictates the proper forum for judicial review, then resolving venue questions will require close examination of the specific grounds of each challenge, spawning extensive venue litigation (as this case shows).
The ultimate outcome in Madison Gas demonstrates the substantive risks of this approach to venue. Despite our initial conclusion in Madison Gas that the petitioner‘s challenge was based on an entirely
The principle of stare decisis does not require us to refuse to correct our own mistakes. Regrettably, Madison Gas was mistaken. And here, the structural significance of the Clean Air Act‘s venue provision makes the case for overruling especially strong. Overlapping, piecemeal, multicircuit review of a single, nationally applicable EPA rule is potentially destabilizing to the coherent and consistent interpretation and application of the Clean Air Act. Madison Gas is overruled.
Our decision today does not disturb deeply established precedent; we‘ve cited Madison Gas in just one published opinion. See New York v. EPA, 133 F.3d 987, 990 (7th Cir. 1998). In that case, three northeastern states filed a petition for review challenging an EPA action exempting several Great Lakes states from nitrogen-oxide emission regulations. Id. at 989. We concluded that review was proper in this court because the exemption in question “is limited to a cluster of states; it thus is regional in a literal sense.” Id. at 990 (citing Madison Gas, 4 F.3d 529). The citation to Madison Gas is a bit mysterious; our decision in New York did not follow the petition-focused method adopted in that case. Quite the contrary: We said that “[d]etermining whether an action by the EPA is regional or local on the one hand or national on the other should depend on the location of the persons or enterprises that the action regulates rather than on where the effects of the action are felt.” Id. This mode of analysis keeps the focus on the nature of the agency‘s action, not the scope of the petition, and thus is fully consistent with the text of
Because the Cooperative seeks review of a nationally applicable EPA rule, this petition belongs in the D.C. Circuit.
PETITION TRANSFERRED.
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 139 and International Union of Operating Engineers Local 420, Plaintiffs-Appellants / Cross-Appellees, v. Brad D. SCHIMEL and James R. Scott, Defendants-Appellees / Cross-Appellants.
Nos. 16-3736 & 16-3834
United States Court of Appeals, Seventh Circuit.
Argued June 2, 2017
Decided July 12, 2017
Rehearing En Banc Denied September 1, 2017