Thursday, December 4, 2014

Ninth Circuit Dismisses Clean Air Act Citizen Suit Seeking to Compel New Ozone PSD Regulations

On December 1, the Ninth Circuit (Canby, Fletcher, Watford) issued a decision in WildEarth Guardians v. McCarthy.  WildEarth Guardians, Midwest Environmental Defense Center, and Sierra Club sued EPA under the Clean Air Act's citizen suit provision, 42 U.S.C. § 7604, in an attempt to force EPA to issue revised regulations for ozone under its Prevention of Significant Deterioration (PSD) program, which regulates emissions in areas that are in attainment of the National Ambient Air Quality Standard.  Clean Air Act § 166(a) requires EPA to issue regulations implementing the PSD program, initially within two years after 1977 and then, “[i]n the case of pollutants for which national ambient air quality standards are promulgated after August 7, 1977, [EPA] shall promulgate such regulations not more than 2 years after the date of promulgation of such standards.”  The plaintiffs’ suit was premised on an interpretation of this sentence that would require EPA to issue new PSD regulations within two years of any revision of a NAAQS—here, EPA’s 2008 revision of the ozone NAAQS.  EPA interprets Clean Air Act § 166(a) to require new PSD regulations only for newly regulated pollutants, not NAAQS that merely revise the standard for an already regulated pollutant.  The Ninth Circuit, without reaching the question whether EPA’s interpretation is correct, held that Clean Air Act § 166(a) was sufficiently ambiguous that it could not support the existence of a nondiscretionary duty that would form the basis for a citizen suit against EPA.  Under Ninth Circuit precedent, a citizen suit alleging EPA has violated a nondiscretionary duty must allege that EPA has violated a “specific, unequivocal command” in the relevant statute. 

—Todd Aagaard

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