Environmental Groups File Clean Air Complaint Against EPA

Last week, plaintiffs Center for Biological Diversity and Center for Environmental Health filed a Clean Air Act (CAA) suit to compel the administrator of the United States Environmental Protection Agency (EPA), Andrew Wheeler, to fulfill outstanding obligations legally required of him in his official capacity by the CAA. The environmental organizations claimed that “the EPA’s failure to timely perform the mandatory duties… affects Plaintiffs, as well as their members, by depriving them of procedural protection, opportunities, and information that they are entitled to under the Clean Air Act.”

The Northern District of California case was assigned to Judge William Alsup of the San Francisco Division as requested by the complaint, which stated that such assignment was proper because, “[a] substantial part of the events and omissions giving rise to the claims in this case occurred in the County of San Francisco.” For the agency’s alleged transgressions, the plaintiffs requested an order declaring that the EPA is “in violation of the Clean Air Act with regard to its nondiscretionary duty to perform each mandatory duty,” injunctive relief requiring the agency to take the requested action, and reasonable litigation costs and fees.

First, the plaintiffs charged the EPA administrator with failing to promulgate a Federal Implementation Plan (FIP) addressing a permitting rule for the Mendocino County Air Quality Management District. According to the complaint, the “EPA was required to promulgate a FIP no later than August 2, 2019, unless the state of California submits and EPA approves a revised SIP (State Implementation Plan),” yet, to date,  the “EPA has neither approved a revised SIP nor published a FIP addressing the disapproval of revised Rule 1-220 for the Mendocino County Air Quality Management District.”

Second, the environmental groups challenged the EPA’s failure to take final action on several dozen SIP elements submitted by California to “implement the 2008 8-hour ozone NAAQS for the Kern County nonattainment area.” The plaintiffs contended that the EPA has not taken final action to approve, conditionally approve, or disapprove these SIP elements for the nonattainment area, though the CAA deadline requiring it to do so has passed.

The plaintiffs also charged the EPA with failing to take final action on certain new source review requirements submitted by the state of California to meet the moderate nonattainment requirements under the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS) for the Northern Sierra Air Quality Management District. Though earlier this year the California Air Resource Commission submitted a revised proposal for approval and incorporation into the California SIP and claimed to “withdraw” its 2016 version, the February update “does not change the due date for EPA’s final action,” which has passed, according to the complaint.

Finally, the action targeted the EPA’s failure to take final action on several SIP elements submitted by the state of Colorado to implement the 2008 8-hour ozone NAAQS for the Denver Metro/North Front Range nonattainment area. The complaint averred that the EPA has not fulfilled its obligations in a timely manner because it has failed to meet the action deadline set forth by the CAA.

The plaintiffs are represented by counsel with the Center for Biological Diversity.