State of California et al v. United States Environmental Protection Agency et al, No. 4:2018cv03237 - Document 98 (N.D. Cal. 2019)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS 87 MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS 92 MOTION FOR SUMMARY JUDGMENT. ***Civil Case Terminated.***Signed by Judge Haywood S. Gilliam, Jr. on 5/6/2019. (ndrS, COURT STAFF) (Filed on 5/6/2019)

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State of California et al v. United States Environmental Protection Agency et al Doc. 98 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 STATE OF CALIFORNIA, et al., 7 Plaintiffs, 8 v. 9 United States District Court Northern District of California Case No.18-cv-03237-HSG 10 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., 11 Defendants. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Re: Dkt. Nos. 87, 92 12 13 Pending before the Court are cross-motions for summary judgment filed by Plaintiffs1 and 14 Defendants U.S. Environmental Protection Agency and Andrew R. Wheeler,2 in his official 15 capacity as Acting Administrator of the U.S. Environmental Protection Agency (collectively, 16 17 18 “EPA”), briefing for which is complete. Dkt. Nos. 87 (“Pls.’ Mot.”), 92 (“Defs.’ Mot.”), 93 (“Pls.’ Reply”), 94 (“Defs.’ Reply”). The parties agree there is no dispute that EPA failed to fulfill certain mandatory duties under 40 C.F.R. § 60.27. See Dkt. No. 58. The only questions before the 19 Court is whether Plaintiffs have standing and, if so, how long to give EPA to comply with its long20 overdue nondiscretionary duties. 21 // 22 // 23 24 25 26 27 28 1 Plaintiffs are eight states: the State of California, by and through the Attorney General and the California Air Resources Board; the State of Illinois; the State of Maryland; the State of New Mexico; the State of Oregon; the Commonwealth of Pennsylvania; the State of Rhode Island; and the State of Vermont. Dkt. No. 1 ¶¶ 1, 10–18. Plaintiffs also include the Environmental Defense Fund (“EDF”), which the Court permitted to intervene on November 20, 2018. See Dkt. No. 78. EDF has represented to the Court that it only intends to proceed in this action under the existing complaint filed by the States. See Dkt. No. 78 at 7 n.3. 2 Acting Administrator Wheeler is automatically substituted for former Administrator Scott Pruitt. See Fed. R. Civ. P. 25(d). Dockets.Justia.com 1 I. A. 2 Landfill Emissions The relevant facts in this case are not in dispute. “The United States produces roughly 265 3 4 million tons of solid waste annually, or 4.5 pounds per person, per day . . . .” Dkt. No. 1 5 (“Compl.”) ¶ 27; Dkt. No. 91 (“Answer”) ¶ 27. Emitted from solid waste landfills are numerous 6 harmful pollutants, including not only greenhouse gases but also “nearly thirty different organic 7 hazardous air pollutants,” which “present a range of public health and safety concerns.” Compl. 8 ¶¶ 28, 36; Answer ¶¶ 28, 36. These hazardous air pollutants “are known to cause adverse health 9 effects . . . including heart attacks, asthma, and acute bronchitis leading to premature mortality.” 10 Compl. ¶ 36; Answer ¶ 36. One such greenhouse gas is methane, a potent pollutant and the leading greenhouse gas 11 United States District Court Northern District of California BACKGROUND 12 behind carbon dioxide, which—along with other human-generated greenhouse gases—is “a 13 significant driver of observed climate change.” Compl. ¶¶ 2, 29; Answer ¶¶ 2, 29. Municipal 14 solid waste landfills in particular “are the third-largest source of [domestic] human-related 15 methane emissions.” Compl. ¶ 29; Answer ¶ 29. 16 B. 17 The Clean Air Act (“CAA” or the “Act”) “protect[s] and enhance[s] the quality of the Landfill Emission Regulations 18 Nation’s air resources so as to promote the public health and welfare and the productive capacity 19 of its population.” 42 U.S.C. § 7401(b)(1).3 To that end, the Act directs the EPA Administrator to 20 “publish . . . a list of categories of stationary sources” that “in [the Administrator’s] judgment . . . 21 cause[], or contribute[] significantly to, air pollution which may reasonably be anticipated to 22 endanger public health or welfare.” Id. § 7411(b)(1)(A). Once the agency includes a category of 23 stationary sources in the list, the agency must “publish proposed regulations, establishing Federal 24 standards of performance” for emission of pollutants from new or modified sources “within such 25 category.” Id. § 7411(b)(1)(B); see also id. § 7411(a)(2). As relevant here, the Act also requires the regulation of “existing sources” that fall within 26 27 28 3 All statutory citations are to the Clean Air Act, 42 U.S.C. § 7401 et seq., unless otherwise stated. 2 1 the same category, provided that the emissions are not already covered by certain other CAA 2 programs. See id. § 7411(d). Specifically, the CAA states that “[t]he Administrator shall 3 prescribe regulations which shall establish a procedure similar to that provided by section 7410 of 4 this title under which each State shall submit to the Administrator a plan [that] establishes 5 standards of performance,” and “provides for the implementation and enforcement of such 6 standards of performance.” Id. § 7411(d)(1). The Act further provides that the Administrator has 7 authority to promulgate a federal implementation plan “in cases where [a] State fails to submit a 8 satisfactory plan.” Id. § 7411(d)(2); see also id. § 7410(c). United States District Court Northern District of California 9 Consistent with the CAA’s instruction, EPA promulgated regulations, which established 10 deadlines for the implementation of emission guidelines. According to the regulations, once EPA 11 published an emission guideline, each State to which the guideline pertained was required to 12 “adopt and submit to the Administrator . . . a plan” to implement the guideline “[w]ithin nine 13 months.” 40 C.F.R. § 60.23(a). The agency then was required to “approve or disapprove” such 14 implementation plans “within four months after the date required for submission of a plan or plan 15 revision.” Id. § 60.27(b). Last, if states to which the guideline pertained did not submit an 16 implementation plan or EPA disapproved of a submitted plan, the Administrator was required, 17 “within six months after the date required for submission of a plan or plan revision, [to] 18 promulgate [a federal plan]” to implement the guideline. Id. § 60.27(d). 19 On August 29, 2016, EPA promulgated a final rule related to Municipal Solid Waste 20 (“MSW”) landfills. Emission Guidelines and Compliance Times for Municipal Solid Waste 21 Landfills, 81 Fed. Reg. 59,276 (Aug. 29, 2016) (“Landfill Emissions Guidelines”). The Landfill 22 Emissions Guidelines were the result of decades of consideration, as EPA first proposed rules 23 regulating such emissions in 1991. Compl. ¶ 38; Answer ¶ 38. And in 1996, EPA promulgated 24 landfill emission guidelines, which explained that landfill emissions are “a significant source of air 25 pollution” and that the guidelines aimed to “significantly reduce landfill gas emissions, which 26 have adverse effects on human health and welfare.” Standards of Performance for New Stationary 27 Sources and Guidelines for Control of Existing Sources: Municipal Solid Waste Landfills, 61 Fed. 28 Reg. 9,905, 9,909, 9,918 (Mar. 12, 1996). The Administrator in particular determined “that 3 1 municipal solid waste landfills cause, or contribute significantly to, air pollution that may 2 reasonably be anticipated to endanger public health or welfare.” Id. at 9905. The Landfill Emissions Guidelines became effective on October 28, 2016. In turn, 3 4 according to EPA’s regulations: 5 1. States were required to submit implementation plans by May 30, 2017, see 40 C.F.R. § 60.23(a)(1); 6 2. EPA was required to approve or disapprove submitted plans by September 30, 2017, see 40 C.F.R. § 60.27(b); and 7 3. If either (i) states to which the guideline pertained did not submit implementation plans, or (ii) EPA disapproved a submitted plan, then EPA was required to promulgate a federal plan by November 30, 2017, see 40 C.F.R. § 60.27(d). 8 9 United States District Court Northern District of California 10 As of May 30, 2017, EPA received implementation plans as described by the regulations 11 from California and two from New Mexico—one covering Albuquerque and Bernalillo County 12 and another covering the rest of New Mexico. Defs.’ Mot. at 1–2 & n.2 (citing Dkt. No. 92-1 13 (“Lassiter Decl.”) ¶ 15); see also Dkt. No. 58 ¶ 2. Subsequently, EPA received implementation 14 plans from Arizona (one covering Maricopa County and another covering the remainder of the 15 state), Delaware, and West Virginia. Defs.’ Mot. at 1–2 & n.2 (citing Lassiter Decl. ¶ 15); see 16 also Dkt. No. 58 ¶ 2. To date, EPA has neither approved or disapproved of any submitted plans 17 nor promulgated a federal plan. Dkt. No. 58 ¶¶ 1–2. Accordingly, Plaintiffs brought this action, 18 which asks this Court to “[i]ssue a declaratory judgment that, by failing to implement and enforce 19 the Emission Guidelines, EPA has violated the Clean Air Act;” and “[i]ssue a mandatory 20 injunction compelling EPA to implement and enforce the Emission Guidelines.” Compl. at 19. 21 II. 22 LEGAL STANDARD Summary judgment is appropriate if, viewing the evidence and drawing all reasonable 23 inferences in the light most favorable to the nonmoving party, “there is no genuine dispute as to 24 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 25 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 26 The parties agree that this case is properly resolved on their cross-motions for summary 27 judgment. Pls.’ Mot. at 1; Defs.’ Mot. at 6. When there is no dispute that an agency failed to 28 timely fulfill a nondiscretionary obligation, summary judgment is the appropriate mechanism to 4 1 determine when compliance is due. See, e.g., In re Ozone Designation Litig., 286 F. Supp. 3d 2 1082, 1085 (N.D. Cal. 2018) (setting deadlines for EPA to comply with mandatory duties under 3 the CAA at summary judgment). In those situations, courts generally have broad equitable 4 discretion to fix an appropriate deadline. See Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 5 985, 999–1000 (9th Cir. 2000). That said, if Congress found that a certain amount of time was 6 appropriate for the agency to complete its statutory duty in the first instance, that timeframe 7 generally still controls. Sierra Club v. Thomas, 658 F. Supp. 165, 171 (N.D. Cal. 1987). Courts should not, however, demand a deadline for agency compliance that is impossible 8 United States District Court Northern District of California 9 or infeasible. Nat. Res. Def. Council, Inc. v. Train, 510 F.2d 692, 713 (D.C. Cir. 1974) (“The 10 sound discretion of an equity court does not embrace enforcement through contempt of a party's 11 duty to comply with an order that calls for him to do an impossibility.”) (internal quotation 12 omitted). To determine whether a deadline is infeasible, the Court should consider: (1) whether 13 the “budgetary” and “manpower demands” required are “beyond the agency's capacity or would 14 unduly jeopardize the implementation of other essential programs”; and (2) an agency's need to 15 have more time to sufficiently evaluate complex technical issues. Id. at 712–13. A delinquent 16 agency, though, bears an “especially heavy” burden of showing infeasibility. Thomas, 658 F. 17 Supp. at 172.4 18 III. DISCUSSION EPA admits that it has failed to meet its nondiscretionary obligations to implement the 19 20 Landfill Emissions Guidelines, as compelled by the CAA. See Dkt. No. 58. For that reason, the 21 Court enters the declaratory judgment of liability requested by Plaintiffs. See Compl. at 19(1). 22 Plaintiffs also ask the Court to compel EPA immediately to perform its nondiscretionary duties 23 under the Landfill Emissions Guidelines. Id. at 19(2). EPA does not dispute that it has failed to perform its nondiscretionary duties. Dkt. No. 58 24 25 ¶¶ 1–2. Nor does it dispute that this Court has authority to “enter an order setting a deadline for 26 27 28 Plaintiffs suggest that this Court should adopt an “impossibility” standard, rather than an “infeasibility” standard. Pls.’ Reply at 12. Although courts have explained that agency officials should not be required to do the impossible, the Ninth Circuit does not appear to have held that courts should impose Plaintiffs’ requested standard. 5 4 1 EPA to perform an obligation for which it admits liability.” See Defs.’ Mot. at 6. EPA argues, 2 however, that (1) Plaintiffs lack standing, and (2) Plaintiffs’ proposed deadlines are not feasible. 3 A. 4 EPA contends that neither the State Plaintiffs nor the intervenor-Plaintiff EDF have 5 standing to sue. Because the Court finds the State Plaintiffs have standing, it need not evaluate 6 whether EDF has standing. See Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 7 U.S. 47, 52 n.2 (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article 8 III’s case-or-controversy requirement.”); Int’l Brotherhood of Teamsters v. U.S. Dep’t of Transp., 9 861 F.3d 944, 951 (9th Cir. 2017) (declining to evaluate whether co-petitioners had standing). 10 11 United States District Court Northern District of California State Plaintiffs Have Standing 1. Legal Standard A plaintiff seeking relief in federal court bears the burden of establishing the “irreducible 12 constitutional minimum” of standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) 13 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). First, the plaintiff must have 14 “suffered an injury in fact.” Spokeo, 136 S. Ct. at 1547. This requires “an invasion of a legally 15 protected interest” that is concrete, particularized, and actual or imminent, rather than conjectural 16 or hypothetical. Lujan, 504 U.S. at 560 (internal quotation marks omitted). Second, the plaintiff's 17 injury must be “fairly traceable to the challenged conduct of the defendant.” Spokeo, 136 S. Ct. at 18 1547. Third, the injury must be “likely to be redressed by a favorable judicial decision.” Id. 19 (citing Lujan, 504 U.S. at 560–61). “States are not normal litigants for the purposes of invoking 20 federal jurisdiction” and are “entitled to special solicitude in [the] standing analysis.” 21 Massachusetts v. EPA, 549 U.S. 497, 518–20 (2007). 22 2. Analysis 23 The Court finds the State Plaintiffs are entitled to “special solicitude” under Massachusetts 24 v. EPA. The Supreme Court there held that Massachusetts had standing to contest EPA's decision 25 not to regulate greenhouse-gas emissions that allegedly contributed to a rise in sea levels and a 26 loss of coastal land. Massachusetts v. EPA, 549 U.S. at 526. It was “of considerable relevance” to 27 the Court “that the party seeking review [was] a sovereign State and not . . . a private individual” 28 because “States are not normal litigants for the purposes of invoking federal jurisdiction.” Id. at 6 1 518. The Court then identified two other factors that entitled Massachusetts “to special solicitude 2 in [the Court's] standing analysis.” Id. at 520. The first was that the CAA created a procedural 3 right to challenge EPA's conduct: 4 5 6 7 8 9 United States District Court Northern District of California 10 The parties' dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. That authorization is of critical importance to the standing inquiry: Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before. In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. We will not, therefore, entertain citizen suits to vindicate the public's nonconcrete interest in the proper administration of the laws. 11 Id. at 516–17 (internal quotation marks and citations omitted). The second was that EPA's 12 decision affected Massachusetts's “quasi-sovereign” interest in its territory: 13 14 15 16 17 18 19 20 21 22 When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted. These sovereign prerogatives are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to the “emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator's] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Id. at 519–20 (citation omitted) (quoting 42 U.S.C. § 7521(a)(1)). As was the case in Massachusetts v. EPA, the State Plaintiffs here “are not normal 23 litigants” for purposes of federal jurisdiction. Id. at 518. And just as Congress afforded 24 Massachusetts a right to challenge EPA's decision not to regulate greenhouse-gas emissions, 25 Congress afforded the State Plaintiffs here the right to challenge EPA’s failure to perform its 26 nondiscretionary duties. Compare id. at 517 (finding the procedural right afforded under 42 27 U.S.C. § 7607(b)(1)), with 42 U.S.C. § 7604(a)(2) (affording the present procedural right). 28 Despite Massachusetts v. EPA’s clear applicability, EPA argues that the State Plaintiffs 7 1 lack standing for failure to plead causation, and relatedly, redressability. Defs.’ Mot. at 9 (“[T]he 2 States fail to demonstrate either a sufficient causal connection between EPA’s inaction and the 3 alleged injuries to the States’ sovereign interests (fairly traceable) or the requested relief 4 (redressability).”). To this end, EPA relies exclusively on Washington Environmental Council v. 5 Bellon, 732 F.3d 1131 (9th Cir. 2013), in which the Ninth Circuit found the plaintiffs’ alleged 6 injuries were too attenuated to the climate change caused by the defendants’ conduct to support 7 causation. Defs.’ Mot. at 10–11. The Court finds EPA’s reliance on Bellon unavailing. First, the Bellon Court explained 8 United States District Court Northern District of California 9 that its holding was based on two factors: (1) plaintiffs there were not sovereigns; and (2) unlike in 10 Massachusetts v. EPA, the plaintiffs did not provide evidence that the relevant emissions had a 11 “meaningful contribution” on greenhouse-gas levels. 732 F.3d at 1145–46. Neither factor is 12 present here. As detailed above, the parties do not dispute that the United States “produces 13 roughly 265 million tons of solid waste annually,” and that emissions from solid waste landfills 14 contain numerous harmful pollutants. See Answer ¶ 27. And the parties do not dispute that solid 15 waste landfills “are the third-largest source of [domestic] human-related methane emissions” and 16 that methane is the leading greenhouse gas behind carbon dioxide. Id. ¶¶ 2, 29. Further, the 17 Landfill Emissions Guidelines themselves—promulgated by EPA—detail the meaningful 18 contribution of landfill emissions to harmful pollution. See 81 Fed. Reg. at 59,276–77. And the 19 EPA Administrator long ago determined “that municipal solid waste landfills cause, or contribute 20 significantly to, air pollution that may reasonably be anticipated to endanger public health or 21 welfare.” 61 Fed. Reg. at 9,905. “Where Congress has expressed the need for specific regulations 22 relating to the environment, that expression supports an inference that there is a causal connection 23 between the lack of those regulations and adverse environmental effects.” Nat. Res. Def. Council 24 v. EPA, 542 F.3d 1235, at 1248 (9th Cir. 2008) (NRDC).5 For these reasons, the Court rejects EPA’s causation challenge. The Court similarly rejects 25 26 EPA’s redressability challenge, which is entirely derivative of its causation challenge. See Defs.’ 27 28 5 EPA made no effort to distinguish NRDC in either the briefing or at the hearing on these motions. 8 United States District Court Northern District of California 1 Mot. at 12–13. 2 B. 3 Because the Court finds the State Plaintiffs have standing, the sole remaining issue is what Deadlines 4 timetable to impose on EPA for it to complete its long-overdue nondiscretionary duties. The 5 parties each submitted proposed timetables. Plaintiffs request “strict guidelines,” including that 6 EPA be ordered to (1) review existing state plans within thirty days, (2) promulgate a federal plan 7 within five months, (3) respond to any future state plans within sixty days of submission, and (4) 8 file status reports every sixty days. Pls.’ Mot. at 17–22. EPA requests (1) four to twelve months 9 to review existing state plans, (2) twelve months to promulgate a federal plan, and (3) that the 10 Court deny Plaintiffs’ request for imposition of deadlines for future state plans. Defs.’ Mot. at 17– 11 25. In support of its timetables, EPA submits the Declaration of Penny Lassiter, the Acting 12 Director of the Sector Policies and Programs Division within the Office of Air Quality Planning 13 and Standards, Office of Air and Radiation at EPA. Lassiter Decl. ¶ 2. As a preliminary matter, Plaintiffs argue that strict deadlines are warranted due to EPA’s 14 15 longstanding recalcitrance. Pls.’ Mot. at 17–18. In Plaintiffs’ view, “[a] court order setting 16 specific and expeditious deadlines is needed to ensure EPA follows the law.” Id. at 18. There is 17 no denying EPA’s clear failure to meet its nondiscretionary duties. But that alone does not dictate 18 deadlines. The Court is now faced with the question of feasibility. And nothing about past 19 recalcitrance in any practical sense changes the feasibility of timelines moving forward. To be 20 sure, EPA’s delinquency means that it has an “especially heavy” burden of showing infeasibility. 21 Thomas, 658 F. Supp. at 172. But recalcitrance does not render feasible what is otherwise 22 infeasible. Plaintiffs also ask the Court to reject EPA’s representation that it is short-staffed, because 23 24 the President’s recent budget request seeks to reduce EPA’s funding. Pls.’ Reply at 14. Again, 25 this claim does not solve the issue at hand. As EPA notes, “the budget request is just that: the 26 Executive’s request to Congress.” Defs.’ Reply at 6. More important, that the President may seek 27 to reduce EPA’s future funding does not change EPA’s present capabilities. 28 // 9 1. 1 2 EPA received state plans from five states: California, New Mexico, Arizona, Delaware, 3 and West Virginia. Lassiter Decl. ¶ 13. Two plans are in EPA Region 3: Delaware and West 4 Virginia. Id. Two plans are in EPA Region 6: Albuquerque/Bernalillo County, New Mexico; and 5 the rest of New Mexico. Id. Three plans are in EPA Region 9: Maricopa County, Arizona; the 6 rest of Arizona; and California. Id. 7 United States District Court Northern District of California Existing State Plans Ms. Lassiter details five phases to the rulemaking process for state plan approval or 8 disapproval: (1) review and analysis of submitted state plan; (2) development of rule proposal 9 package; (3) proposed rule publication and public comment period; (4) summarization of 10 comments, development of comment responses; and (5) development of final rule package. Id. 11 ¶¶ 17–22. Ms. Lassiter provides a summary of the tasks necessary to complete each phase as well 12 as an estimate of how long she estimates EPA will need to complete those tasks for each regional 13 office, given that individual regional offices “review and approve or disapprove individual state 14 plans.” Id. ¶ 14. Each estimate purportedly represents the “minimum time” to complete a phase. 15 See id. ¶ 10. 16 Plaintiffs argue that EPA needs no more than thirty days to review existing state plans, as 17 most of the state plans are less than twenty-five pages and incorporate by reference federal 18 standards. Pls.’ Mot. at 19. EPA counters that Plaintiffs’ thirty-day proposal “is patently 19 unreasonable” because, among other things, “the required public notice and comment period and 20 response to public comments cannot be completed in less than 45 days.” Defs.’ Mot. at 17. EPA 21 adds that the presumptively reasonable timeframe is the four months afforded under the 22 regulations. Id. And indeed, EPA proposes a four-month timeframe for completing its review of 23 state plans outside of EPA Region 9. 24 EPA, however, proposes dramatically protracted deadlines for state plans from within EPA 25 Region 9, without a satisfactory explanation. Ms. Lassiter claims that EPA Region 9 is “operating 26 with seriously reduced resources; [has] a significant existing backlog of actions to complete; and 27 [has] limited staff expertise in the MSW landfill source category.” Lassiter Decl. ¶ 16. EPA adds 28 that although California submitted a plan it considers “equivalent” to the relevant requirements 10 United States District Court Northern District of California 1 underlying the Landfill Emission Guidelines, EPA “anticipates that a line-by-line analysis will be 2 necessary to determine” if that is true because California’s existing program predates the relevant 3 requirements. Id. EPA contends that these factors support an eight-month timeframe for the 4 Arizona proposals and a twelve-month timeframe for the California proposal. 5 The Court takes EPA’s representations about the phases required to conduct rulemaking 6 for final action on state plans at face value and proceeds to analyze its proposed timetables on a 7 phase-by-phase basis. In the review-and-analysis phase (Phase I), EPA Regions review the state 8 plans “to determine whether [they] conform[] to the applicable statutory and regulatory 9 requirements.” Lassiter Decl. ¶ 18. EPA estimates that this phase will take fifteen days for state 10 plans submitted in regions outside of EPA Region 9, thirty-five days for the Arizona plans, and 11 sixty-five days for the California plan. Id. Tbls. 1–2. For the development of rule proposal 12 package phase (Phase II), EPA performs some technical analysis, briefs the Regional EPA 13 Administrator, and drafts regulatory text ultimately leading to a proposed rule. Id. ¶ 19. EPA uses 14 a “tiering” approach at this phase, based on the complexity of the rulemaking actions, and 15 concedes that the present “types of rulemakings” typically fall in the least complex category. Id. 16 Nonetheless, EPA estimates that this phase will take thirty days for state plans submitted in 17 regions outside of EPA Region 9, forty days for the Arizona plans, and seventy-five days for the 18 California plan. Id. Tbls. 1–2. The next phase is the notice and comment period (Phase III), 19 which is the ordinary period for public comment on the approval or disapproval of state plans. Id. 20 ¶ 20. Publication in the Federal Register typically takes two weeks, after which the public 21 comment period is thirty days. Id. EPA thus estimates that this phase will take forty-five days for 22 all state plans. Id. Tbls. 1–2. Following notice and comment is the summarization of comment 23 phase (Phase IV), wherein EPA “drafts a comment summary document.” Id. ¶ 21. EPA estimates 24 that this phase will take fifteen days for state plans submitted in regions outside of EPA Region 9, 25 sixty days for the Arizona plans, and 120 days for the California plan. Id. Tbls. 1–2. Last is the 26 final rule phase (Phase V), which includes briefing the Regional EPA management and producing 27 the final regulatory package. Id. ¶ 22. EPA estimates that this phase will take fifteen days for 28 state plans submitted in regions outside of EPA Region 9 and sixty days for the Arizona and 11 1 United States District Court Northern District of California 2 California plans. Id. Tbls. 1–2. The Court begins by adopting the four-month deadline for state plans outside of EPA 3 Region 9, which is the presumptively reasonable timeframe. Turning then to state plans within 4 EPA Region 9, EPA has an “especially heavy” burden to prove that it is infeasible to approve or 5 disapprove state plans in four months. Thomas, 658 F. Supp. at 172. The Court finds EPA has not 6 met this burden. 7 Starting with Phase I, EPA’s fifteen-day estimate for non-Region 9 plans seems 8 imminently reasonable for the Region 9 plans as well. Although Ms. Lassiter claims that EPA 9 may need to conduct a thorough review, including potentially a “line-by-line” analysis of 10 California’s plan, see Lassiter Decl. ¶ 16, the California plan is twenty pages long, see Dkt. No. 11 87-13. The Court sees no reason why even a line-by-line analysis of a twenty-page document 12 requires sixty-five days, as EPA suggests. 13 As to Phase II, EPA only indicates that more time is needed in Region 9 because of 14 “resource constraints” and “a backlog” of other work. Defs.’ Mot. at 21. The Court finds two 15 flaws in this explanation. First, these points are true for both the Arizona plans and the California 16 plan, and yet EPA does not explain why it purportedly needs thirty-five more days for the 17 California plan. Second, Ms. Lassiter concedes in her declaration that under EPA’s “tiering” 18 approach, the rulemaking actions at issue here fall within the least complex category of actions. 19 Accepting that as true, the Court finds the thirty days EPA proposes for non-Region 9 state plans 20 is reasonable across the board. 21 Turning next to Phase III, Plaintiffs contend that EPA could avoid a full-blown notice-and- 22 comment process by approving the state plans with a “direct final rule,” which would be effective 23 “without requiring further notice.” Pls.’ Reply at 13 (citing Approval and Promulgation of State 24 Plans for Designated Facilities and Pollutants: California, 64 Fed. Reg. 51,447, 51,447, 51,449– 25 50 (Sept. 23, 1999)). As EPA responds, however, “it is not clear that [the discretionary direct final 26 rule mechanism] is appropriate” and, more important, the exemplary direct final rule Plaintiffs cite 27 states that the reception of adverse comments would render a direct final rule ineffective. Defs.’ 28 Reply at 2; see also 64 Fed. Reg. at 51,447 (“If EPA receives such comments, then it will publish 12 1 a timely withdrawal in the Federal Register informing the public that this rule will not take 2 effect.”). The Court thus finds it unreasonable to mandate that EPA employ the direct final rule 3 mechanism. 4 5 summarization phase for state plans outside of Region 9 in fifteen days, but needs sixty days for 6 the Arizona plans and 120 days for the California plan. See Defs.’ Mot. at 21 (stating summarily 7 that “Phase IV . . . will take 60 and 120 days, for the Arizona plans and the California plan, 8 respectively”). The Court finds that EPA has not met its “especially heavy” burden of 9 demonstrating it needs more than fifteen days with such conclusory statements. See Thomas, 658 10 11 United States District Court Northern District of California As to Phase IV, EPA provides no explanation whatsoever for why it can complete the F. Supp. at 172. Last, as to Phase V, EPA again provides no explanation whatsoever for why it can 12 complete the final rule phase for state plans outside of Region 9 in fifteen days, but needs sixty 13 days for the Arizona and California plans. See Defs.’ Mot. at 21 (“For the same reasons, Phase V, 14 development of final rule package, is estimated to take 60 days.”). The Court again finds that EPA 15 has not met its “especially heavy” burden of demonstrating it needs more than fifteen days with 16 such conclusory statements. See Thomas, 658 F. Supp. at 172. 17 For these reasons, the Court adopts the four-month timetable EPA set forth for state plans 18 outside of Region 9, but finds that EPA must meet the same timetable for plans within Region 9. 19 20 2. Federal Plan Although the presumptively reasonable timeframe to promulgate a federal plan is six 21 months—given the regulations—Plaintiffs argue that EPA needs no more than five months to 22 propose a single federal plan, receive comments, and finalize it. Pls.’ Mot. at 20–21. EPA 23 counters that it needs twelve months—twice the regulatory timeframe. See Defs.’ Mot. at 21–25. 24 To this end, Ms. Lassiter details six phases to the rulemaking process for finalizing a federal plan, 25 which are the same five phases described for action on state plans “plus a prefatory project kick- 26 off phase.” Id. at 21 (citing Lassiter Decl. ¶¶ 23–24). Ms. Lassiter again provides a summary of 27 the tasks necessary to complete each phase as well as an estimate of how long she estimates EPA 28 will need to complete those tasks. Id. ¶¶ 23–29. 13 United States District Court Northern District of California 1 Although the Court takes EPA’s representations about the phases required to conduct 2 rulemaking for final action on a federal plan at face value, it rejects EPA’s overall timetable for 3 promulgation of a federal plan. Due to EPA’s delinquency, it bears an “especially heavy” burden 4 to prove that six months is infeasible. See Thomas, 658 F. Supp. at 172. Merely describing what 5 tasks must be performed in the various phases as EPA does is thus unhelpful, as those steps 6 presumably have always been required. It is EPA’s burden to go beyond a description of the 7 process and instead explain why it cannot complete the process within six months. And on this 8 point EPA cites to only one factor: EPA staff members “with responsibility for rule writing” and 9 the requisite knowledge and expertise “required for the development of a federal plan . . . are 10 working on” other matters with court-ordered deadlines. Defs.’ Mot. at 24–25 (citing Lassiter 11 Decl. ¶¶ 10, 12); see also Cmty. In-Power & Dev. Ass’n, Inc. v. Pruitt, 304 F. Supp. 3d 212, 225 12 (D.D.C. 2018) (ordering EPA “to complete all nine overdue rulemakings no later than October 1, 13 2021”); Blue Ridge Envtl. Def. League v. Pruitt, 261 F. Supp. 3d 53, 61 (D.D.C. 2017) (ordering 14 EPA “to complete RTRs [Risk and Technology Reviews] for at least 7 overdue source categories 15 by December 31, 2018, and to complete the remaining 6 RTRs by June 30, 2020”); Cal. Cmtys. 16 Against Toxics v. Pruitt, 241 F. Supp. 3d 199, 207 (D.D.C. 2017) (ordering EPA to perform 17 overdue rulemaking as to “20 source category RTRs within three years”). Put differently, EPA 18 seeks additional time to complete a nondiscretionary duty it failed to meet until ordered to act by 19 the Court, because it faces other court orders to perform other unmet nondiscretionary duties. The 20 Court finds EPA’s self-inflicted inconvenience, by itself, does not satisfy the “especially heavy” 21 burden necessary to warrant more than six months to promulgate a federal plan. See Thomas, 658 22 F. Supp. at 172. 23 24 3. Future State Plans Plaintiffs finally ask this Court to “order EPA to respond to any future state plan 25 submissions within two months.” Pls.’ Mot. at 21. Plaintiffs maintain that “[m]any states did not 26 submit plans by the deadline because EPA affirmatively encouraged them not to,” and thus “this 27 Court should require EPA to quickly review and determine if [future plans are] approvable.” Id. 28 The EPA counters that this Court lacks jurisdiction to order EPA to take action based on future 14 1 plans because the “EPA has not yet missed any deadline to take final action on such plans.” Defs.’ 2 Mot. at 25. The Court finds that it does not yet have jurisdiction to order EPA to act based on as-yet- United States District Court Northern District of California 3 4 unmissed deadlines. As EPA notes, the CAA citizen suit provision under which Plaintiffs brought 5 suit only vests jurisdiction in district courts “after EPA has failed to undertake some mandatory 6 action prior to a certain deadline.” Id. (quoting Sierra Club v. Browner, 130 F. Supp. 2d 78, 93 7 (D.D.C. 2001) and citing 42 U.S.C. § 7604(a)). In response, Plaintiffs cite to no authority to the 8 contrary, but nonetheless urge this Court to exercise “close oversight in this matter,” given that 9 “EPA has shown that it has no intention of implementing the Emission Guidelines absent a 10 specific court order, that it will implement them only in the narrowest way required, and that it 11 will only fulfill additional mandatory obligations if it is hailed into court again.” Pls.’ Reply at 15 12 (internal citations omitted). Whether or not that characterization is accurate, the Court finds that 13 the proper remedy given the jurisdiction-vesting statute is limited to compelling EPA to perform 14 mandatory duties it has already failed to perform. 15 IV. 16 CONCLUSION For the foregoing reasons, the Court hereby GRANTS IN PART and DENIES IN PART 17 Plaintiffs’ motion for summary judgment and enters judgment in favor of Plaintiffs and against 18 Defendants. The terms of the judgment are as follows: 19 (1) The Court DECLARES that Defendants U.S. Environmental Protection Agency and 20 Andrew R. Wheeler, in his official capacity as Acting Administrator of the U.S. 21 Environmental Protection Agency, have failed to perform non-discretionary duties 22 imposed by 40 C.F.R. § 60.27 to both (1) approve or disapprove existing state plans 23 submitted to EPA addressing emission guidelines promulgated for municipal solid 24 waste landfills within four months of receipt, and (2) promulgate regulations setting 25 forth a federal plan addressing the emission guidelines promulgated for municipal solid 26 waste landfills by November 30, 2017, both in violation of the Clean Air Act; 27 28 (2) The Court ORDERS Defendants to approve or disapprove of existing state plans, as required by 40 C.F.R. § 60.27(b), no later than September 6, 2019; 15 1 2 3 (3) The Court ORDERS Defendants to promulgate regulations setting forth a federal plan, as required by 40 C.F.R. § 60.27(d), no later than November 6, 2019; (4) The Court ORDERS Defendants to file status reports with the Court every ninety 4 days—such that the first status report is due August 5, 2019—detailing EPA’s progress 5 in complying with this order. 6 7 8 9 The Clerk is directed to enter judgment in favor of Plaintiffs and close the case. The Court retains jurisdiction to make such orders as may be necessary or appropriate. IT IS SO ORDERED. Dated: 5/6/2019 10 United States District Court Northern District of California 11 HAYWOOD S. GILLIAM, JR. United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16

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