Opinion
Civil Action No. 00-2206 (CKK/JMF)
March 11, 2002
REPORT AND RECOMMENDATION
This matter is before me for report and recommendation pursuant to LCvR 72.3. I herein take up plaintiffs' Motion for Partial Summary Judgment ("Plains. Mot.") and defendants' Cross-Motion to Dismiss Certain Claims for Lack of Jurisdiction ("Defs. Cross Mot.").
BACKGROUND
The Clean Air Act, 42 U.S.C.A. §§ 7401 et seq. (1995) ("CAA"), enacted in 1970 and amended in 1977 and 1990, was passed to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42. U.S.C.A. § 7401(b)(1). The CAA regulates specific air pollutants that threaten public health and welfare. The key mechanism by which such pollutants are measured is the National Ambient Air Quality Standards ("NAAQS"). The NAAQS represent quantitative levels of a regulated pollutant in the outside air that the Environmental Protection Agency ("EPA") deems necessary to protect the public health and welfare. § 7409(b). Depending on the type pollutant, the NAAQS are typically measured in parts per million or billion.
Under the CAA, the United States is divided into distinct "air quality control regions," typically comprising a metropolitan area or surrounding counties. 42 U.S.C.A. § 7407(b). Each air quality control region is designated by EPA as an attainment or nonattainment area for each regulated pollutant based on its success in achieving the NAAQS for that particular pollutant. 42 U.S.C.A. § 7407(d). An air quality control region might be designated as an attainment area for carbon monoxide, say, but a nonattainment area for ozone. The requirements for achieving attainment vary according to the regulated pollutant, but most are based on the frequency with which a particular type of pollutant exceeds the NAAQS over a specified time period. In the case of ozone, an area is accorded nonattainment status if the number of exceedances averages less than one per year over a three-year period. 40 C.F.R. § 50, Appendix H. Nonattainment areas must adopt State Implementation Plans ("SIPs") specifying how they plan to achieve attainment. 42 U.S.C.A. § 7407(a).
The 1990 Amendments to the CAA established a system of penalties for nonattainment and incentives for achieving attainment status. Depending on the number and severity of exceedances of the NAAQS over this period, ozone nonattainment areas are classified as "marginal," "moderate," "serious," "severe," or "extreme." § 7511(a)(1); 57 Fed. Reg. 13506 (1992). If EPA determines that an area has not attained the NAAQS standard by the attainment date, the area is reclassified (a.k.a. "bumped up") by operation of law to a higher classification. §§ 7511(b)(2)(A). Generally, if an area is bumped up to a higher nonattainment status, it must meet more exacting emission standards. § 7511a.
The CAA imposes nondiscretionary duties on EPA in the event that an area fails to achieve attainment. In language that goes to the heart of this litigation, the CAA provides:
(A) Within 6 months following the applicable attainment date (including any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area's design value (as of the attainment date), whether the area attained the standard by that date. Except for any Severe or Extreme area, any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law in accordance with table 1 of subsection (a) of this section to the higher of—
(i) the next higher classification for the area, or (ii) the classification applicable to the area's design value as determined at the time of the notice required under subparagraph (B). . .
(B) The Administrator shall publish a notice in the Federal Register, no later than 6 months following the attainment date, identifying each area that the Administrator has determined under subparagraph (A) as having failed to attain and identifying the reclassification, if any, described under subparagraph (A).
§ 7511(b)(2); see also § 7509(c) for a virtually identical provision governing nonattainment determinations in general.
The CAA allows a state to apply for up to two one-year extensions of the ozone attainment date. Id. § 7511(a)(5).
A separate provision of the CAA, § 7407(d)(3)(D), authorizes EPA to redesignate an area's attainment classification. Such redesignation may occur upon EPA's own initiative or upon a request from the state. In the typical state redesignation request, the state submits data showing that its air quality has improved enough to qualify for either an attainment designation or a less severe nonattainment designation. EPA then has 18 months to approve or deny such a request. § 7407(d)(3)(D). A redesignation, whether arising from a state's request or EPA's initiative, may only be promulgated if five specific requirements are met. § 7407(d)(3)(E). One of these requirements is that the area has attained the NAAQS for that pollutant.
The instant dispute is over whether or not EPA complied with the nonattainment determination and reclassification process for ozone with respect to the Birmingham Area, Alabama, and the Kent and Queen Annes County Area, Maryland. Plaintiffs assert that the six-month deadlines for EPA's attainment determinations expired in the mid 1990's. EPA responds that it has in fact published these determinations as required, albeit belatedly. The material facts are not in dispute and resolution of this matter turns entirely on questions of law.
Plaintiffs' motion for summary judgment also sought injunctive relief for Salt Lake and Utah Counties, Utah, and Spokane County, Washington. Due to subsequent actions by the EPA, however, these claims are now moot and have been dismissed by the parties. Stipulation to Dismissal, October 11, 2001; Order (D.D.C. October 11, 2001).
Birmingham Area
Pursuant to the 1990 Amendment to the CAA, the Birmingham Area was classified as a marginal ozone nonattainment area. The statutory attainment date therefore was November 15, 1993. § 7511(a)(1). EPA concedes that it "should have made a determination on Birmingham's attainment status by May 15, 1994, but did not." Defs. Cross Mot. at 11.
However, EPA contends that proposed and final actions in 1997 under the § 7407(d)(3) redesignation provisions of the CAA also served as a formal determination of attainment for the purposes of § 7511(b)(2). In 1995, the State of Alabama submitted a request for a redesignation of the area from nonattainment to attainment pursuant to § 7407(d)(3)(D). In April and September 1997, respectively, EPA published a proposed and final disapproval of Birmingham's request. See 62 Fed. Reg. 23,421 (Apr. 30, 1997); 62 Fed. Reg. 49,154 (Sept. 19, 1997) (collectively "the 1997 Rules"). In both the proposed and final rules, EPA included a brief mention of the area's attainment data from 1990 through 1994. 62 Fed. Reg. at 23,421; id. at 49,155. EPA argues that this acknowledgment of attainment constitutes a formal attainment determination under § 7511(b)(2).
Kent and Queen Annes Counties Area
This two-county area was originally designated as "marginal" for ozone nonattainment and had an attainment deadline of November 15, 1993. 56 Fed. Reg. 56,694 (1991); § 7511(a)(1). EPA thus had until May 15, 1994, to publish an attainment determination or a reclassification in the Federal Register. § 7511(b)(2). EPA concedes that no such action was taken by this date.
However, EPA asserts that it did perform its § 7511(b)(2) obligations through two Federal Register publications in 1995. First, on January 17, 1995, EPA published a "Direct Final Rule" entitled "Clean Air Act Promulgation of Reclassification of Ozone Nonattainment Areas in Virginia, and Attainment Determinations." 60 Fed. Reg. 3,349 (1995) ("January 1995 Rule"). Despite the title, the January 1995 Rule contained formal attainment determinations for several areas outside of Virginia, including areas in Delaware, New Jersey, Pennsylvania, West Virginia and the Kent and Queen Annes Counties Area in Maryland. In particular, the notice included a finding that the Kent and Queen Annes Counties Area had not timely attained the ozone standard during the 1991-1993 period, but did attain the standard by the 1992-1994 period. 60 Fed. Reg. at 3,351. Based on the 1992-1994 values, EPA essentially compromised by declining to bump up the Kent and Queen Annes Counties Area to moderate status but also in extending its marginal nonattainment status. Id. at 3,351.
By entitling the notices as a "Direct Final Rule," EPA intended the rule to go into effect without prior proposal unless a person notified it within 30 days that he wished to file a critical comment. 60 Fed. Reg. 3,349.
The rule also included a proposed new EPA method for making attainment determinations, but this section is not at issue here.
On March 13, 1995, EPA published another rule entitled "Designation of Areas for Air Quality Planning Purposes; Virginia; Withdrawal of Final Rule Pertaining to the Clean Air Act Promulgation of Reclassification of the Hampton Roads Ozone Nonattainment Areas in Virginia and Attainment Determinations." 60 Fed. Reg. 13,368 (1995) ("March 1995 Rule"). This rule withdrew the portion of the January 1995 Rule that applied to the Virginia area. It also professed to have no effect on the attainment determinations in the January 1995 Rule with respect to the areas outside of Virginia, and expressly listed all of the relevant states except Maryland. Id.
DISCUSSION
Jurisdiction to Determine Whether EPA's Actions Satisfy Its Nondiscretionary Determination and Publication Duties
Plaintiffs Sierra Club and Group Against Smog and Pollution (collectively "Sierra Club") bring this action under the citizen-suit provision of the CAA. This provision grants a private right of action against the Administrator of EPA "where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." 42 U.S.C.A. § 7604(a)(2). In a citizen suit, the court may grant relief "order[ing] the Administrator to perform such act or duty [or] compel[ling] . . . agency action unreasonably delayed." § 7604(a); Sierra Club v. Browner, 130 F. Supp.2d 78, 89 (D.D.C. 2001).
EPA argues that this court has no jurisdiction to determine whether its Federal Register notices with respect to the Birmingham Area and the Kent and Queen Annes Counties Area satisfied its obligations under § 7511 of the CAA. Rather, the EPA claims that the issue falls under § 7607(b)'s grant of exclusive jurisdiction to the Circuit Court to review the Agency's "final actions." EPA does not dispute that the duty to make and publish an attainment determination is nondiscretionary. Rather, EPA asserts that because the agency has already taken final action, any challenge to that decision falls under the exclusive jurisdiction of the Circuit Court.
EPA's interpretation of § 7607(b) would render meaningless any grant of jurisdiction under § 7604(a) empowering a District Court to order EPA to perform a nondiscretionary duty. As a logical matter, the statute's grant of jurisdiction to the District Courts to order EPA to perform a nondiscretionary duty must presuppose the District Courts' jurisdiction to determine whether such duties have been performed in the first place. Aside from the obvious case, such as in Spokane County, where EPA concedes that it has done absolutely nothing to fulfill its nondiscretionary duties, it is difficult to conjure a situation where a plaintiff alleges a failure to perform a nondiscretionary that does not require the court to determine whether some action by EPA qualifies as a formal attainment determination.
EPA's argument is further undercut by the plain language of § 7604(a), which gives the District Court jurisdiction when a private plaintiff has " alleged a failure of the Administrator to perform" a nondiscretionary duty. § 7604(a) (emphasis added). This is precisely what has occurred here. Sierra Club maintains that EPA's notices pertaining to both the Kent and Queen Annes Counties Area and the Birminham Area constitute a failure to perform its nondiscretionary duties pursuant to § 7511.
Moreover, Sierra Club seeks the limited remedy of ordering EPA to perform these duties, not a review of the substance of any action. EPA protests that Sierra Club's ultimate goal is to challenge the substance of the determinations made with respect to each nonattainment area. However, this challenge could not now be brought under § 7607(b) because that provision imposes a 60-day statute of limitations on such claims and that period would have long since passed if EPA's actions were to be viewed as formal determinations. EPA appears deeply aggrieved that by having to issue a formal determination now, Sierrra Club will have an opportunity to challenge the substance of the determination. In fact, Sierra Club readily concedes that it will petition for review in the event that it prevails in this action. Plains. Reply at 7 n. 6. But Sierra Club argues, and rightly so, that its ultimate objective is irrelevant to the immediate issue of whether EPA has performed its nondiscretionary duties under § 7511(b). Indeed, it is equally irrelevant to the jurisdictional question.
In other words, if the court determines that EPA's January 1995 Rule and 1997 Rule constitute formal attainment determinations, Sierra Club will have no opportunity to bring an action in Circuit Court, because § 7607(b) sets a 60-day statute of limitations for such actions. Thus, only by bringing the claim under § 7511(b) and forcing EPA to issue a determination will Sierra Club have the opportunity to overturn the substantive outcome.
In short, EPA is quite right when it contends that "[o]nce EPA has taken action, the jurisdiction of this Court ends." Defs. Cross Mot. at 10. But read more closely, EPA essentially argues that once EPA itself is convinced that it has taken a final action in fulfillment of its nondiscretionary duties, the District Court has no jurisdiction to visit this issue. This is flatly inconsistent with the language of § 7604(a). It is for the District Court, and not EPA, to decide whether EPA has actually taken final action. See, e.g., Mobil Oil Corp. v. Department of Energy, 610 F.2d 796, 804 (Temp.Emer.Ct.App. 1979),cert. denied, 446 U.S. 937 (1980) (upholding a District Court's nullification of an agency action); Chemical Mfrs. Ass'n v. E.P.A., 26 F. Supp.2d 180, 182 (D.D.C. 1998) (District Court interpreted whether EPA's action qualified as a final action under the APA); Independent Petroleum Ass'n of America v. Babbitt, 971 F. Supp. 19, 27 (D.D.C. 1997) (same).
Finally, it is worth pointing out that EPA acknowledged the court's jurisdiction in Sierra Club v. Browner when it urged the court to resolve the very same substantive issue here — whether its actions fulfilled its nondiscretionary duties under § 7511. In response to private intervenors who did raise the jurisdictional issue, the court determined that it did indeed have such jurisdiction. EPA's change of view directly contradicts both its own earlier position and the court's interpretation of § 7604(a) in Sierra Club v. Browner.
". . . [T]he Court has jurisdiction to require that EPA make a[n attainment] determination. Quite plainly, the Court's jurisdiction does not extend to telling EPA what the determination should be. That limitation does not, however, eliminate the Court's jurisdiction altogether. Under the CAA, the Court unquestionably has the authority to require EPA to take nondiscretionary actions, such as reaching a determination. . . EPA itself endorses this view of the statute." Sierra Club v. Browner, 130 F. Supp.2d at 89 n. 16 (emphasis added).
EPA makes the additional argument that the District Court lacks jurisdiction to consider whether EPA complied with the APA's procedural requirements, citing to Husqvarna AB v. EPA, 254 F.3d 195, 202 (D.C. Cir. 2001), and Small Refinder Lead Phase-Down Task Force v. U.S.E.P.A., 705 F.2d 506, 547 (D.C. Cir. 1983). These cases are mere examples of the Circuit Court's determining whether EPA complied with the procedural requirements of the CAA as a part of its § 7607(b) review of an EPA final action. They in no way stand for the broad proposition that a District Court may not make a similar determination in considering whether EPA performed a nondiscretionary duty.
Adequacy of EPA's Actions
The jurisdictional issue is not the only position in Sierra Club v. Browner that EPA has now abandoned. In fact, both Sierra Club and EPA apparently have reversed themselves on a major point of contention — the degree of formality required of EPA's § 7511(b) attainment determinations and the publication thereof. In Sierra Club v. Browner, EPA adopted the position that a notice constitutes an attainment determination only if it has been published and there has been an opportunity for comment. Id. at 90. EPA, in other words, interpreted the attainment and reclassification procedure under § 7511(b)(2) as a rulemaking process, subject to the Administrative Procedure Act's requirements for notice and comment at 5 U.S.C.A. § 553(b) (1996). Sierra Club, in turn, argued that a series of letters, comments and other publications together qualified as a nonattainment determination for the St. Louis Area. Id. at 90. The court, deferring to EPA in accordance withChevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), found EPA's interpretation of § 7511(b)(2) both reasonable and consistent with the purpose of the CAA. Sierra Club v. Browner at 90-92. In particular, the court noted the value of public scrutiny and input in ensuring that EPA made reasonable and informed decisions on the often "complex" and "weighty" attainment determinations. Id. at 91.In the instant case, EPA contends that the January 1995 Rule and the 1997 Rules constitute formal attainment determinations for the purposes of § 7511(b)(2). In its argument, EPA ignores its past urging inSierra Club v. Browner for a strict interpretation of § 7511(b)(2) as an APA rulemaking, instead asserting that Sierra Club should have discovered and interpreted the January 1995 Rule and the 1997 Rules as formal attainment determinations. Sierra Club, meanwhile, eagerly embraces the court's ruling against it in Sierra Club v. Browner to support its position that the January 1995 Rule and the 1997 Rules in no way meet the rulemaking requirements of the APA.
The APA sets forth three elements to the notice requirement: "(1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved." 5 U.S.C.A. § 553(b). In addition, the D.C. Circuit consistently has held that notice under this provision must "afford interested parties a reasonable opportunity to participate in the rulemaking process." MCI Telecommunications Corp. v. F.C.C., 57 F.3d 1136, 1140 (D.C. Cir. 1995) (quoting Florida Power Light Co. v. United States, 846 F.2d 765, 771 (D.C. Cir. 1988)); Water Transport Ass'n v. I.C.C., 684 F.2d 81, 84 (D.C. Cir. 1982) (quoting Forester v. Consumer Product Safety Commission, 559 F.2d 774, 787 (D.C. Cir. 1977), and Logansport Broadcasting Corp. v. United States, 210 F.2d 24, 28 (D.C. Cir. 1954));see also Conference of State Bank Sup'rs v. Office of Thrift Supervision, 792 F. Supp. 837 (D.D.C. 1992).
Furthermore, Connecticut Light Power Co. v. Nuclear Regulatory Commission, 673 F.2d 525, 530 (D.C. Cir. 1982) cert. denied 459 U.S. 835 (1982), held that notice of a proposed rulemaking should provide an accurate picture of the agency's reasoning so that interested parties may comment meaningfully upon the agency's proposed rule. See also Sargent v. Block, 576 F. Supp. 882, 891 (D.D.C. 1983) (holding that proposed rule complied with APA notice provision where it clearly set forth issue and the ramifications of the proposed rule). Finally, Small Refiner Lead Phase-Down Task Force v. Environmental Protection Agency, 705 F.2d 506 (D.C. Cir. 1983), held that the adequacy of an agency's notice must be interpreted in light of the policies of openness and accessibility that underlie the notice requirement. Id. at 547.
Together, these cases set forth the basic standards that EPA's rules must meet in order to qualify under the APA and by extension the CAA. The adequacy of an agency's notice is determined on a case-by-case review in light of the relevant circumstances. United Church Board for World Ministries v. Securities and Exchange Comm'n, 617 F. Supp. 837, 839 (D.D.C. 1985).
All of the circumstances surrounding EPA's January 1995 Rule and 1997 Rules lead me to conclude that these notices were inadequate. As to the January 1995 Rule, the most glaring error was the misleading title. Given the enormous volume of information published in the Federal Register, the importance of accurate and precise titles cannot be overstated. It is entirely unreasonable to expect someone searching for information pertaining to the Kent and Queen Annes Counties Area to scrutinize a proposed rule that referenced only Virginia in the title. This expectation is all the more unreasonable given that EPA's standard operating practice is to reference the geographic areas in its attainment determinations. Plains. Reply at 5. As stated in National Air Transportation Assn' v. McArtor, 866 F.2d 483 (D.C. Cir. 1989), "[a]n agency may not put up signs inducing a set of readers to turn aside and then claim they had constructive notice of what they would have found at the end of the road." Id. at 485; See also McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317, 1322-23 (D.C. Cir. 1988) (holding that misleading headings can render notice inadequate). Plaintiff further contends that the March 1995 Rule, by omitting any mention of Maryland or the Kent and Queen Annnes Counties Area, further added to the ambiguity surrounding the status of the area. Finally, I note that the misleading title of the notice was more than harmless error. In fact, Sierra Club contends, and EPA does not dispute, that Sierra Club had no actual notice of the purported attainment determination until after it had served its notice of intent to sue in this action. Plains. Mot. at 12 n. 6.
The 1997 Rules present an even more egregious failure. It would take no one less than a mindreader to interpret the 1997 Rules as an attainment determination for the Birmingham Area. These rules were issued in response to a request to redesignate the Birmingham Area from nonattainment to attainment status, a process distinct from the attainment and bump up processes. The titles and summaries of the 1997 Rules expressly reference the redesignation request but make no mention of an attainment determination. Moreover, the respective "Proposed Action" and "Final Action" sections of proposed and final rules discuss only the redesignation request. The proposed rule includes no invitation to comment on the purported attainment determination. In fact, the sole mention of the area's attainment status is found in the introductory sections of these rules, where EPA writes the following two sentences:
The State submitted its request for redesignation on March 16, 1995. The request included information showing that the Birmingham area had three years of air quality attainment data from 1990-1993. The area continued to maintain the ozone NAAQS through 1994.
62 Fed. Reg. at 23,421; id. at 49,155.
EPA asserts that these two sentences qualify as a formal attainment determination under § 7511(b)(2). Such an argument fails for several reasons. Notably, the text itself does not expressly reference § 7511(b)(2), as required by 5 U.S.C.A. § 553(b)(2). Sierra Club points to several other EPA attainment determinations that expressly reference § 7511(b)(2) and are identified as attainment determinations per se. Plains. Reply at 5. EPA offers no explanation for why it did not do so here.
Moreover, EPA does not and cannot seriously contend that its brief mention of the Birmingham Area's attainment data from 1990 through 1994 passes muster under the "reasonable opportunity to participate" standard. Its argument that the public should have been on notice because an area's attainment status is a threshold question in the redesignation rulemaking is incorrect. First, EPA denied the redesignation request, thus the importance placed on the purported attainment determination was minimal at best. Second, the relevant attainment data for a redesignation request is as of the date of the request, not as of the attainment date under § 7511(b)(2). Here, Alabama requested a redesignation in 1995, but the attainment date for the purposes of § 7511(b)(2) was May 15, 1994. How attainment data from 1990 through 1994 becomes an "essential" component of the redesignation request is beyond me.
Vahle v. Carol Browner, Civ. No. 97-G-3150-S (N.D.Ala. September 4, 1998), does not influence my recommendation in any way. In Vahle, the court held that the 1997 Rules did qualify as an attainment determination for the Birmingham Area. Both parties acknowledge that this case has no res judicata effect in the present action, given that plaintiffs were not parties thereto. Furthermore, in the subsequent case of Sierra Club v. Browner, EPA substantially changed its position with respect to the notice requirements of § 7511(b)(2) and in the process eroded the authority of Vahle. It appears that the APA's notice standards never arose in Vahle, as the court simply cites to the 1997 Rules without exploring the adequacy of the notice. Under these circumstances, I have not accorded Vahle any serious consideration.
In sum, I seriously doubt that EPA itself ever intended the 1997 Rules to serve as a formal attainment determination. Even if this were the case, the public cannot reasonably be expected to connect the dots and recognize these two sentences as an attainment determination. See, e.g.,Wagner Electric Corp. v. Volpe, 466 F.2d 1013, 1019-20 (3rd Cir. 1972) (notice inadequate where only "some knowledgeable" manufacturers would grasp link between subject notice identified and broader subject of final rule). If the public, including two environmental organizations promoting strict enforcement of the CAA, cannot even recognize a publication as notice, it follows a fortiori that such notice fails to meet the standards of the APA. To confer attainment determination status on EPA's two-sentence allusion to attainment data in the context of a lengthy rejection of a redesignation request would undermine the APA's policy of encouraging public comments in the rulemaking prcoess. In reaching this conclusion, I am simply holding EPA to the high notice standards that it set for itself in Sierra Club v. Browner.
I therefore recommend that EPA be ordered to publish formal attainment determinations for the Birmingham Area and the Kent and Queen Annes Counties Area.
Timing of Remedy
Sierra Club originally requested an order giving EPA 90 days to publish final attainment and reclassification determinations for both the Birmingham and Kent and Queen Annes Counties Areas. EPA requests 164 days for both areas. In its reply, Sierra Club has indicated that, if pressed, it would be willing to allow 120 days for final publication, and this appears to be a reasonable middle ground. I therefore recommend that EPA be given 45 days from Judge Kollar-Kotelly's order to publish the proposed determinations, another 30 days for public comment, followed by 45 more days to publish the final action in the Federal Register.
Failure to file timely objections to the findings and recommendations set forth in this report may waive your right of appeal from an order of the District Court adopting such findings and recommendations. See Thomas v. Arn , 474 U.S. 140 (1985).