WildEarth Guardians v. McCarthy, No. 12-16797 (9th Cir. 2014)
Annotate this CasePlaintiffs filed suit against the EPA's Administrator under the Clean Air Act's (CAA), 42 U.S.C. 7604, citizen-suit provision, seeking an order that would force the Administrator to issue revised regulations governing ozone pollution. Plaintiffs claimed that the Administrator has a nondiscretionary duty to issue revised ozone regulations under section 166(a) of the CCA. The court held that, when a plaintiff sues the Administrator for failure to perform any act or duty under this chapter which is not discretionary with the Administrator, the nondiscretionary nature of the duty must be clear-cut - that is, readily ascertainable from the statute allegedly giving rise to the duty. Given section 166(a)'s ambiguity, the court could not say that the existence of a nondiscretionary duty to promulgate revised Prevention of Significant Deterioration regulations for ozone is clear-cut or readily ascertainable from the statute. This is enough to preclude plaintiffs' reliance on section 7604(a)(2) as the jurisdictional basis for their suit. Accordingly, the court affirmed the district court's dismissal of plaintiffs' claims.
Court Description: Environmental Law. The panel affirmed the district court’s dismissal for lack of subject matter jurisdiction of plaintiff environmental groups’ Clear Air Act citizen-suit action seeking to require the Environmental Protection Agency’s Administrator to issue revised regulations governing ozone pollution. The Clean Air Act’s citizen-suit provision, 42 U.S.C. § 7604, authorizes suits against the EPA’s Administrator only for actions where there is an alleged failure by the Administrator to perform an act or duty which is not discretionary with the Administrator. In 1977, Congress added a new program to the Clean Air Act, known as the Prevention of Significant Deterioration (PSD) program, to prevent air quality from significantly deteriorating in areas that already had relatively clean air. Section 166(a) of the Clean Air Act required the EPA to issue regulations implementing the PSD program, and plaintiffs alleged that the Administrator had a nondiscretionary duty to issue revised ozone regulations under § 166(a). The panel held that given § 166(a)’s ambiguity, the existence of a nondiscretionary duty to promulgate revised PSD regulations for ozone was not clear cut or readily ascertainable from the statute. The panel concluded that this was enough to preclude plaintiffs’ reliance on § 7604(a)(2) as the jurisdictional basis for their suit.
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