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Sierra Club v. State of North Dakota

United States Court of Appeals, Ninth Circuit

August 28, 2017

Sierra Club; Natural Resources Defense Council, Plaintiffs-Appellees,
v.
State of North Dakota; State of Arizona; Commonwealth of Kentucky, Energy and Environment Cabinet; State of Nevada; State of Louisiana, Department of Environmental Quality; State of Texas, Intervenor-Plaintiffs-Appellants,
v.
Scott Pruitt, in his official capacity as Administrator of the United States Environmental Protection Agency, Defendant-Appellee.

          Argued and Submitted March 16, 2017 San Francisco, California

         Appeal from the United States District Court for the Northern District of California D.C. No. 3:13-cv-03953-SI Susan Illston, District Judge, Presiding

          Paul M. Seby (argued), Special Assistant Attorney General for the State of North Dakota, Greenberg Traurig LLP, Denver, Colorado; Wayne Stenehjem, Attorney General; Margaret I. Olson, Assistant Attorney General; Office of the Attorney General, Bismarck, North Dakota; Mark Brnovich, Arizona Attorney General; Monique K. Coady, Assistant Attorney General; Office of the Attorney General, Phoenix, Arizona; C. Michael Haines, Executive Director; Jacquelyn A. Quarles, Staff Attorney; Office of General Counsel, Energy and Environment Cabinet, Frankfort, Kentucky; Spencer B. Bowman, Legal Division, Louisiana Department of Environmental Quality, Baton Rouge, Louisiana; Adam Paul Laxalt, Attorney General; Belinda A. Suwe, Deputy Attorney General; Office of the Attorney General, Carson City, Nevada; Ken Paxton, Attorney General; Charles E. Roy, First Assistant Attorney General; James E. Davis, Deputy Attorney General for Civil Litigation; Jon Niermann, Chief, Environmental Protection Division; Nancy Olinger, Assistant Attorney General; Office of the Attorney General, Austin, Texas; for State Intervenor-Plaintiffs-Appellants.

          Zachary M. Fabish (argued), Sierra Club Environmental Law Program, Washington, D.C.; Paul R. Cort, Earthjustice, San Francisco, California; Nicholas Morales and David S. Baron, Earthjustice, Washington, D.C.; for Plaintiffs-Appellees Sierra Club and Natural Resources Defense Council.

          J. David Gunter II (argued) and Martha C. Mann, Attorneys; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Michael Thrift, Office of General Counsel, United States Environmental Protection Agency, Washington, D.C.; for Defendant-Appellee.

          Before: J. Clifford Wallace, M. Margaret McKeown, and Jay S. Bybee, Circuit Judges.

         SUMMARY[*]

         Clean Air Act / Consent Decree

         The panel affirmed the district court's approval of a Consent Decree between the Environmental Protection Agency ("EPA") and the Sierra Club that set a schedule for the EPA to promulgate designations whether geographic areas met national ambient air quality standards for sulfur dioxide under the Clean Air Act.

         The Consent Decree settlement provided that so long as the EPA followed the agreed-upon designation schedule, the Sierra Club would not move forward with its suit under the citizen-suit provision of the Clean Air Act. The settlement did not modify the EPA's statutory authority, nor did it affect or bind the several states that intervened in the suit and objected to the settlement.

         The panel rejected the States' three main objections to the Consent Decree: that the Decree improperly disposed of their claims; that the Decree imposed duties and obligations on the States without their consent; and that the Decree was not "fair, adequate and reasonable" because its deadlines far exceeded the Clean Air Act's three-year period to promulgate designations.

         Judge Wallace dissented because he disagreed with the majority's holding that the consent decree's seven-year extension of a deadline imposed by the Clean Air Act for the EPA to fulfill a mandatory statutory duty did not conflict with the Act. Judge Wallace would vacate the district court's judgment and remand for further proceedings

          OPINION

          McKEOWN, Circuit Judge:

         Under the Clean Air Act ("the Act"), the Environmental Protection Agency ("EPA") must establish and periodically revise national ambient air quality standards ("NAAQS"). After NAAQS are promulgated, the agency designates whether geographic areas meet those NAAQS. At issue in this appeal are the NAAQS designations for sulfur dioxide, a pollutant that causes environmental harm and health risks. When the EPA missed the statutory deadline to issue its designations, the Sierra Club sued to force agency action. The EPA and the Sierra Club ultimately resolved their claims through a Consent Decree that set a schedule for the EPA to promulgate designations. After a detailed hearing, consideration of objections, and publication of the proposed Consent Decree in the Federal Register, the district court approved the settlement as "fair, adequate and reasonable."

         Although styled as a Consent Decree, the settlement between the EPA and the plaintiffs, the Sierra Club and the Natural Resources Defense Council (collectively, the "Sierra Club"), can best be described as a standstill, or non-suit, agreement: so long as the EPA follows the agreed-upon designation schedule, the Sierra Club will not move forward with its suit. The agreement does not modify the EPA's statutory obligations, nor does it affect or bind the several states (the "States") that intervened in the suit and objected to the settlement. The States may pursue a parallel lawsuit that some of them previously initiated in North Dakota or otherwise advance their claims elsewhere. We affirm the district court's approval of the Consent Decree.

         Background

         The Act is intended "to protect and enhance" the country's air resources "to promote the public health and welfare and the [nation's] productive capacity, " which it seeks to accomplish by allocating implementation and enforcement activities between the federal and state governments. 42 U.S.C. § 7401. One of the Act's provisions aimed at reducing air pollution requires the EPA to set NAAQS that relate to the permissible ambient concentration of certain pollutants considered harmful to public health and the environment. Id. §§ 7408-7410. Each state has the primary responsibility for ensuring that the air quality within its boundaries meets and remains within the NAAQS for each pollutant. Id. § 7407(a).

         The EPA is directed to review the NAAQS every five years and revise them as appropriate. Id. § 7409(d). Within one year of the EPA's promulgation of revised NAAQS for a pollutant, each state must submit recommended designations for areas within the state. Id. § 7407(d)(1)(A). A region may be given one of three designations: (1)"attainment, " for areas that meet the NAAQS; (2)"nonattainment, " for areas that do not meet the NAAQS; or (3) "unclassifiable, " for areas that "cannot be classified on the basis of available information as meeting or not meeting the [NAAQS]." Id.

         What happens next is the genesis of the dispute before us. After the states submit recommended designations, the EPA must promulgate the designations of all regions "as expeditiously as practicable, but in no case later than 2 years from the date of promulgation" of the revised NAAQS. Id. § 7407(d)(1)(B). Congress provides a limited extension for "up to one year" when the agency "has insufficient information to promulgate the designations." Id.

         In June 2010, the EPA revised the primary NAAQS for sulfur dioxide, a gas emitted chiefly when combusting fossil fuels and high-sulfur-containing fuels. Although the precise details of the revised NAAQS are not important for our purposes, this revision caused unique challenges for the collection of relevant emissions data.

         Within the year, the States[1] complied with their obligations and recommended designations for the revised NAAQS. In August 2012, in part because data collection challenges stemming from the revised NAAQS resulted in insufficient data, the EPA opted for the one-year statutory extension to June 2013. See id. § 7407(d)(1)(B). The EPA also began consulting with stakeholders about the best way to address the data challenges posed by the revised NAAQS, which eventually culminated in the EPA's promulgation of the Data Requirements Rule. See Data Requirements Rule for the 2010 1-Hour Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard (NAAQS) ("Data Requirements Rule"), 80 Fed. Reg. 51, 052 (Aug. 21, 2015) (to be codified at 40 C.F.R. pt. 51). However, by August 2013-after the EPA's deadline had expired-the agency had designated only 29 areas, leaving undesignated more than 3, 000 counties throughout the country.

         In August 2013, the Sierra Club sued the EPA in the Northern District of California under the Act's citizen-suit provision, 42 U.S.C. § 7604(a)(2), seeking to compel the EPA to issue designations. Shortly after, the States moved to intervene, asserting that their "claims against [the] EPA will address [the] EPA's failure to promulgate [sulfur dioxide] NAAQS attainment designations in the time frame mandated by the [Act]" and that they "have a significant protectable interest in the terms of any remedial order or settlement that might result from th[e Sierra Club's] case." Nevada, North Dakota, South Dakota, and Texas had previously filed their own citizen suit in the District Court of North Dakota seeking the same relief, and that suit was stayed pending the resolution of the case in California.

         A month after the States asked to join the California suit, the Sierra Club moved for summary judgment in an effort to speed up the EPA's publication of designations. The EPA acknowledged that it missed the three-year deadline. With no dispute on liability, the district court granted the Sierra ...


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