A district court dismissed two claims and sustained one claim brought against the Environmental Protection Agency seeking to compel agency action in regard to the regulation of emissions from nonroad vehicles and engines and aircraft engines. Center for Biological Diversity et al., v. United States Environmental Protection Agency, 2011 WL 2620995 (D.D.C.)( No. 10–00985 (HHK))(July 5, 2011). Judge Henry Kennedy Jr. (Clinton) delivered the opinion.
The Center for Biological Diversity sent three petitions to the EPA between 2007 and 2008 asking the agency to use its authority under the Clean Air Act to regulate air pollutants under Section 213 (concerning emissions from nonroad engines and vehicles) and Section 231 (addressing air pollutants caused by aircraft engines). The EPA issued an Advanced Notice of Proposed Rulemaking, but the plaintiffs contend that the notice did not address their complaints because it did not address whether the emissions in question endangered public welfare or propose a plan to regulate such emissions.
The plaintiffs filed suit alleging that the EPA failed to respond to its petitions; failed to determine whether emissions of greenhouse gases and black carbon from marine vessels contribute to dangerous air pollution; failed to determine whether emissions from nonroad vehicles and engines contribute to dangerous air pollution; and failed to determine whether aircraft engines contribute to dangerous air pollution. The EPA moved to dismiss the last three claims arguing plaintiffs failed to adequately notify the EPA of its intent to sue and that plaintiffs failed to identify an enforceable obligation that was not met.
The court quickly determined that the plaintiffs adequately notified the EPA of their intent to sue under each claim. The EPA argued that the plaintiff’s notice of intent to sue only mentioned their first claim. The court looked at the petitions plaintiffs sent to the EPA and found that the content of the letters plainly identified the sections under which plaintiffs believed the EPA failed to act and its intent to sue for failure to exercise its authority under those sections.
Section 213 states that “If the Administrator determines that any emissions…from new nonroad engines or vehicles significantly contribute to air pollution…the Administrator may promulgate such regulations…” 42 U.S.C. § 7547(a)(4). The EPA argued that the use of the words “if” and “may” show that its authority is discretionary, allowing the agency to address nonroad or vehicle emissions if it decides that doing so is necessary. In support of its opinion, the EPA pointed out that §213(a)(4) is the only portion of §213 that does not set a concrete deadline for agency action. The court agree, declining to assume Congress’ use of different wording was not deliberate and rejecting the plaintiff’s argument that “if” was used only to denote what would happen should the agency make a positive determination, not that the agency should make a determination in the first place. The court also rejected the plaintiff’s argument that interpreting §213(a)(4) as discretionary would defeat the purpose of the statute by allowing the EPA to avoid regulating air pollution. Judge Kennedy agreed with the EPA’s interpretation of the section as a catch-all provision; after Congress affirmatively dealt with carbon monoxide, oxides of nitrogen, and volatile organic compounds in previous sections, it allowed the EPA discretion to regulate additional emissions. The court concluded that the language of the statute created no obligation under §213(a)(4) and inferring one would go beyond Congress’ express instructions, creating practical difficulties. Therefore, the court dismissed the second and third claim.
The court upheld the plaintiffs claim under §231, which provides that the agency “shall, from time to time, issue proposed emission standards applicable to the emissions of any air pollutant…of aircraft engines which…causes, or contributes to, air pollution.” 42 U.S.C. §7571(a)(2)(A). The plaintiffs pointed to Massachusetts v. EPA, 549 U.S. 497, 497 (2007), where the Court interpreted almost identical language from another subsection to impose a non-discretionary requirement on the EPA to make endangerment findings. Kennedy held that Massachusetts was not controlling because the Court did not impose an independent obligation on EPA to conduct endangerment findings; the Court held that once the EPA has responded to a petition for rulemaking, its reasons for action or inaction cannot be beyond the scope of the Act. Id. at 533. However, the court agreed with plaintiffs that the compulsory language stating that the EPA “shall” issue emissions standards, considered in light of the compulsory language used throughout Subsection 231(a), evidences a comprehensive scheme intended to mandate the regulation of harmful aircraft emissions. That scheme would be defeated if the EPA were allowed to avoid triggering enforcement in the first place by not issuing emission standards.
In support of its analysis, the court looked at the wording of §231(a)(2)(A) at the time the provision was enacted, which set a concrete 180 day deadline for when the Administrator had to submit emission standards following a study or investigation. The court held that the wording shows Congress’ intent was to create a study-and-regulate scheme with two mandatory steps. Adding that the phrase “time to time” was not too vague to allow judicial review of unreasonable delay, the court found that Congress intended to create an obligation. Accordingly, the Court did not dismiss the plaintiff’s final claim.