State of New Jersey v. Wheeler

Background

The States of New Jersey, Connecticut, Delaware, and New York; the Commonwealth of Massachusetts; and the City of New York sued the Environmental Protection Agency and its Administrator, Andrew R. Wheeler. They alleged that the EPA had failed to perform a mandatory duty under the Clean Air Act: issuing federal implementation plans (FIPs) that fully addressed interstate ozone pollution from Illinois, Indiana, Michigan, Ohio, Pennsylvania, Virginia, and West Virginia.

The Clean Air Act’s “Good Neighbor Provision” requires state plans to prevent pollution sources in one State from significantly contributing to another State’s failure to meet or maintain national air-quality standards. If a State does not submit an adequate plan, the EPA must issue a federal plan within two years after making the required finding. The EPA had made those findings for the relevant States, creating deadlines of August 12, 2017, for most of the States and July 15, 2018, for Indiana and Ohio.

The EPA issued the Cross-State Air Pollution Rule Update in 2016. That rule addressed some emissions reductions, primarily from electric generating units, but the EPA acknowledged that it was only a partial response and did not fully address emissions from other sources. In earlier litigation, the Court had ordered the EPA to complete its obligations. The EPA later issued a Close-Out Rule stating that no further FIPs were necessary, but the D.C. Circuit Court of Appeals vacated that rule. The D.C. Circuit also held that the earlier rule was deficient because it did not require upwind States to eliminate their significant contributions by the relevant downwind attainment deadlines.

Jurisdiction and liability

The Court first found that the plaintiffs had standing because they showed that interstate ozone pollution and the EPA’s failure to issue complete FIPs harmed, and would continue to harm, the downwind States and their citizens. The requested relief could address those injuries by requiring the EPA to issue the required FIPs.

The Court also held that it had jurisdiction under the Clean Air Act’s citizen-suit provision. That provision allows a suit alleging that the EPA Administrator failed to perform a duty that is not discretionary. The Court distinguished such a suit from a claim that agency action was unreasonably delayed. Because the Clean Air Act set specific deadlines for the EPA’s action, the Court treated the case as a mandatory-duty suit rather than an unreasonable-delay suit.

The EPA did not dispute that it had a mandatory duty to issue FIPs or approve adequate state plans by the statutory deadlines. It also did not dispute that it had not issued regulations fully addressing the Good Neighbor obligations for the seven upwind States. The Court therefore held that the EPA had not fulfilled its nondiscretionary statutory duty.

Summary judgment and remedy

Summary judgment is a decision entered when there is no genuine dispute about facts that could affect the outcome and one side is entitled to judgment under the law. The Court granted the plaintiffs’ motion for summary judgment as to the EPA’s liability and denied the EPA’s motion for summary judgment.

The EPA proposed separating the rulemaking into two stages, with later rules for emissions from sources other than electric generating units. It argued that the plaintiffs’ requested schedule was impossible because of scientific uncertainty, complexity, and the time needed for agency review and public comment.

The Court rejected that argument. It held that the EPA had not met its heavy burden to show impossibility, noting that the EPA had known for years that a complete rulemaking would need to address non-electric-generating-unit sources. The Court also concluded that scientific uncertainty and administrative complexity, without a showing that they made the rulemaking impossible, did not excuse the EPA’s failure to comply with the Act.

The Court did not set a deadline for the EPA to issue a proposed rule. It ordered the EPA to issue a final notice of a complete-remedy rulemaking by March 15, 2021. The order required the rulemaking to fully address the Good Neighbor obligations for the upwind States and to include emissions controls for both electric-generating-unit and non-electric-generating-unit sources. The Court stated that the EPA could later raise an impossibility argument if circumstances warranted and retained jurisdiction to enforce the judgment.

Attorney’s fees and costs

The Court held that an award of attorney’s fees and costs to the plaintiffs was appropriate under the Clean Air Act because the plaintiffs had compelled the EPA to take action required by the statute. The Court deferred determining the exact amount to allow the parties an opportunity to resolve it without further briefing. If they could not agree, the plaintiffs were directed to proceed under Federal Rule of Civil Procedure 54(d).