May 01, 2019

Regional Report: Region 9

Eric L. Hiser and Brandon Curtis

The Northern District of the U.S. District Court of California recently rejected the U.S. Environmental Protection Agency’s (EPA) argument that the citizen suit provision under 42 U.S.C. 7604(a)(2) extends only to nondiscretionary duties imposed by the statutory text of the Clean Air Act (CAA). California v. United States Envtl. Prot. Agency, 360 F. Supp. 3d 984 (N.D. Cal. 2018). Instead, the court sided with petitioning states, holding that the citizen suit provision also extends to nondiscretionary duties imposed by the EPA’s own regulations. Id. 

The dispute arose out of EPA’s August 29, 2016, final rule to regulate municipal solid waste (MSW) landfills. Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills, 81 Fed. Reg. 59,276 (Aug. 29, 2016). Pursuant to EPA regulation, states were required to submit plans to implement these rules by May 30, 2017––nine months after promulgation. 40 C.F.R. § 60.23(a)(1). In turn, EPA was obligated to approve or disapprove the submitted plans by September 30, 2017––four months after submission. Id. § 60.27(b). If the states failed to submit a plan or EPA disapproved the plans submitted, EPA was required to promulgate a federal implementation plan (FIP) by November 30, 2017. Id. § 60.27(d).

By May 30, 2017, California and New Mexico submitted state implementation plans, with Arizona submitting its plan on July 24, 2018. California, 360 F. Supp. 3d at 988. As of the date of the lawsuit, EPA had not approved or disapproved any plan, nor had it implemented a FIP. Id. Several states brought suit, seeking a declaratory judgment that, by failing to implement and enforce the MSW rule, EPA had violated the CAA. Plaintiffs also requested a mandatory injunction to compel EPA to implement and enforce the emission guidelines. Id.

EPA moved to dismiss the suit on the grounds that the CAA’s citizen suit provision does not “unequivocally waive the sovereign immunity of the United States” for duties imposed by agency regulations. Id. To answer this contention, the court first turned to the text of the citizen suit provision, which states that “any person may commence a civil action on [its] own behalf . . . against the Administrator 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. § 7604(a)(2). While the parties did not dispute that the regulations at issue created nondiscretionary duties for the Administrator, the parties disagreed over whether nondiscretionary duties in regulations constitute “dut[ies] under this chapter” as that term is used in the statute. Id. at 990.

EPA contended that “duties under this chapter” only entailed duties spelled out explicitly in the CAA. Id. EPA relied on WildEarth Guardians v. McCarthy, 772 F.3d 1179 (9th Cir. 2014) and Maine v. Thomas, 874 F.2d 883 (1st Cir. 1989) for this proposition. The court did not find either case persuasive. In WildEarth, the Ninth Circuit was tasked with deciding whether a nondiscretionary duty arose out of a particular statutory provision. While some language appeared to indicate such duties could only arise out of statutory language, the California Court ultimately agreed with petitioners that the case did not stand for anything more than the “undisputed proposition that a mandatory duty must be clear-cut and unambiguous to be actionable.” Id. at 990. The court similarly rejected EPA’s characterization of Thomas, finding that it offered nothing more than “dicta in a footnote.” Id. at 991.

Instead, the court relied on Sierra Club v. Leavitt, 355 F.Supp.2d 544 (D.D.C. 2005), a case in which the EPA had raised and lost the same argument several years earlier. In that litigation, the Sierra Club court rejected EPA’s position, finding that “although the phrase ‘under this chapter’ as used in the [CAA] is not defined, its meaning is readily discernable through the application of traditional tools of statutory construction.” Sierra Club, 355 F.Supp.2d. at 555. Among other things, the court relied on several instances in the CAA statute when the phrase “under this chapter” was used to clearly encompass regulatory provisions. See, e.g., 42 U.S.C. 7604(a)(1) (granting citizen suit rights for violation of “an emission standard or limitation under this chapter”); 42 U.S.C. 7604(f) (defining “emission standard or limitation under this chapter” to include various regulatory provisions).

Ultimately, the Northern District held that the phrase “under this chapter” as used in 42 U.S.C. § 7604(a)(2) waived sovereign immunity for EPA’s failure to perform the nondiscretionary duty mandated by the regulations at issue. California, 360 F. Supp. 3d at 991.

The court also rejected EPA’s request for a stay of the proceedings, notwithstanding the fact that EPA has issued a proposed rule that would eliminate the strict deadlines underlying the lawsuit. Id. at 993–94. The court found that the inherent uncertainty in the rulemaking process creates a “fair possibility” that harm will result if the case does not proceed. Id.

The holding in California is significant in its own right as it meaningfully expands the scope of nondiscretionary duties subject to the CAA’s citizen suit provisions. These provisions are commonly employed by nongovernmental organizations to force EPA to dedicate resources to areas the agency has decided to not prioritize. The holding in California may further embolden these groups in their attempts to force EPA’s hand in important policy areas.

EPA’s posture in California also signals the agency’s continued commitment to resisting the “sue and settle” model. Under the direction of former Administrator Scott Pruitt, the agency issued the “Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements,” which instructed the agency to end the “sue and settle” practice. E. Scott Pruit, E.P.A. Administrator, “Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements” (Oct. 16, 2017). The directive described the “sue and settle” strategy as “resolv[ing] lawsuits filed against [EPA] through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups.” Id. at 1. Among other things, Pruitt’s directive forbade EPA from entering “into a consent decree or settlement agreement that converts an otherwise discretionary duty of the Agency into a mandatory duty to issue, revise, or amend regulations.” Id. at 2. EPA’s strategy in California demonstrates this policy may have continued relevance under Administrator Wheeler.

Eric L. Hiser and Brandon Curtis

Published: May 1, 2019


Eric Hiser
is a partner at Jorden Hiser & Joy, PLC.  He practices in the areas of environmental, natural resources and administrative law.

Brandon Curtis is an associate at Jorden Hiser & Joy, PLC. He practices in the areas of environmental and natural resource law.