Sierra Club v. Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2014 Decided June 13, 2014

No. 13-1014

SIERRA CLUB, ET AL.,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND GINA

MCCARTHY, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENTS

BIG BROWN LIGNITE COMPANY, LLC, ET AL.,

INTERVENORS

On Petition for Review of Final Action of the

United States Environmental Protection Agency

Thomas Cmar argued the cause for petitioners. With him

on the briefs were Abigail Dillen and Jocelyn D’Ambrosio.

Norman L. Rave Jr., Attorney, U.S. Department of Justice,

argued the cause for respondents. With him on the brief was

Robert G. Dreher, Acting Assistant Attorney General.

Norman W. Fichthorn argued the cause for intervenors.

With him on the brief were E. Carter Chandler Clements, Aaron

M. Flynn, and Leslie S. Ritts.

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Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge ROGERS, with

whom Judge Henderson and Judge Tatel join.

ROGERS, Circuit Judge: On November 19, 2012, the

Assistant Administrator of the Environmental Protection Agency

issued a memorandum to regional directors on the “Next Steps

for Pending Redesignation Requests and State Implementation

Plan Actions Affected by the Recent Court Decision Vacating

the 2011 Cross-State Air Pollution Rule.” The Memorandum

stated that certain pending state submissions could proceed

based on emissions reductions under a rule this court had

invalidated but temporarily left in effect pending its

replacement. Petitioners challenge the Memorandum on

procedural and substantive grounds. The court lacks jurisdiction

to consider their challenge because petitioners fail to show they

suffer injury that is imminent or certain as a result of the

Memorandum, and therefore they lack standing to sue.

Accordingly, we dismiss the petition for review.

I.

The Clean Air Act (“CAA”), 42 U.S.C. § 7410(a)(1),

requires each State to submit for approval by the EPA an

implementation plan (“SIP”) specifying how national primary

and secondary ambient air quality standards (“NAAQS”) will be

implemented and maintained within the State. To redesignate

an area from non-attainment to attainment of the applicable

NAAQS, EPA must determine that “the improvement in air

quality is due to permanent and enforceable reductions in

emissions resulting from implementation of the applicable

implementation plan and applicable Federal air pollutant control

regulations and other permanent and enforceable reductions.”

Id. § 7407(d)(3)(E)(iii) (emphasis added). In States containing

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“mandatory class I Federal areas,” such as national parks and

wilderness areas, the SIP must include such “measures as may

be necessary to make reasonable progress toward meeting the

national goal” of remedying impairment of visibility caused by

manmade pollution, including requiring that certain emitting

sources use the “best available retrofit technology” (“BART”)

to control emissions, and a 10–15 year strategy for making

reasonable progress. Id. § 7491(a), (b)(2). EPA regulations

allow an “emissions trading program or other alternative” to

BART so long as the alternative “achieve[s] greater reasonable

progress” than BART. 40 C.F.R. § 51.308(e)(2).

Under the CAA’s good-neighbor provision, 42 U.S.C.

§ 7410(a)(2)(D)(I), a SIP must also include “adequate

provisions” prohibiting emissions activity within the State from

“contribut[ing] significantly to nonattainment in, or interfer[ing]

with maintenance by, any other State with respect to any such

[NAAQS].” The Clean Air Interstate Rule (“CAIR”), 70 Fed.

Reg. 25,162 (May 12, 2005), was designed to carry out the

good-neighbor provision. It was initially vacated by this court

in North Carolina v. EPA, 531 F.3d 896, 929–30 (D.C. Cir.

2008), but, upon reconsideration, was “allow[ed] . . . to remain

in effect until it is replaced by a rule consistent with our opinion

[because this] would at least temporarily preserve the

environmental values covered by CAIR,” North Carolina v.

EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008); see also id. at

1178–79 (Rogers, J., concurring in granting rehearing in part).

The subsequent Cross-State Air Pollution Rule (the “Transport

Rule”), 76 Fed. Reg. 48,208 (Aug. 8, 2011), was to replace

CAIR, but it was also vacated by this court, see EME Homer

City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012),

cert. granted, 133 S. Ct. 2857 (2013); see also id. at 38–61

(Rogers, J., dissenting). The court instructed “EPA [to] continue

administering CAIR pending the promulgation of a valid

replacement,” id. at 38 (majority opinion).

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The Memorandum of November 19, 2012,

“communicate[d] . . . [EPA’s] intent with regard to a range of

actions potentially affected by” this court’s decision in EME

Homer City. Mem. at 1. It stated that “[c]ertain state submittals

awaiting approval . . . may be partly dependent on the assurance

of ongoing regional NOx and SO2 emission reductions” based on

“the expectation that [the Transport Rule] . . . would be fully

implemented.” Id. With regard to pending “attainment SIPs,

redesignation requests, and associated maintenance SIPs,” the

Memorandum stated that “based on th[e] direction from the

Court [in EME Homer City to ‘continue administering CAIR’],

. . . it will be appropriate to rely on CAIR emission reductions

as permanent and enforceable for certain actions in certain

circumstances.” Id. at 1–2 (emphasis added).

Specifically, . . . it will be appropriate to rely on those

reductions either until th[e] petition [for rehearing filed

by EPA] and any further proceedings in the . . . case

are resolved or, if the decision vacating [the Transport

Rule] is not changed, until a valid replacement rule is

developed and implementation plans complying with

any new rule are submitted by the states and acted

upon by the EPA. Thus, action on those pending

requests and SIPs may go forward.

Id. at 2. With regard to regional haze, the Memorandum stated

that it “will be appropriate to approve” a specific proposed state

regional haze plan “that relies on CAIR emission reductions.”

Id. The Memorandum also stated that “at this time the EPA

does not intend to make findings that states failed to submit SIPs

to comply with [the good neighbor provision],” id.; this court

had instructed in EME Homer City, 696 F.3d at 37, that “[w]hen

EPA quantifies States’ good neighbor obligations, it must give

the States a reasonable first opportunity to implement those

obligations.”

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II.

Petitioners contend that the Memorandum is a legislative

rule that required a notice-and-comment rulemaking process,

and, further the Memorandum is arbitrary and capricious and

contrary to law in allowing regions to rely on temporary

emissions reductions from CAIR rather than demonstrating

“permanent and enforceable” reductions. EPA maintains that

Petitioners lack standing and that the Memorandum is neither

final agency action, nor a rule, nor inconsistent with either the

CAA or this court’s precedent. Our consideration of the

Memorandum begins and ends with an examination of our

jurisdiction to consider Petitioners’ contentions.

A.

This case is not moot as a result of the Supreme Court’s

recent decision in EPA v. EME Homer City Generation, L.P.,

134 S. Ct. 1584 (2014), reversing the vacatur of the Transport

Rule. “A case becomes moot — and therefore no longer a

‘Case’ or ‘Controversy’ for purposes of Article III — ‘when the

issues presented are no longer live or the parties lack a legally

cognizable interest in the outcome.’” Already, LLC v. Nike, Inc.,

133 S. Ct. 721, 726 (2013) (internal quotation marks omitted)

(quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)).

Petitioners acknowledge that their petition would be moot

if EPA ceased relying on CAIR. EPA, in turn, acknowledges

that the Supreme Court’s decision means the specific factual

circumstance addressed by the Memorandum no longer exists.

EPA counsel advised during oral argument, however, that EPA

has not yet determined whether it will continue to rely on CAIR

emissions reductions. Counsel explained this is because there

are pending SIP submissions as to which EPA faces certain

deadlines as well as outstanding challenges to the Transport

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Rule that this court must still address. See Oral Arg. Rec.

18:43–19:45; see also, e.g., 42 U.S.C. § 7410(c).

Because EPA has not yet determined that the

Memorandum’s instructions regarding reliance on CAIR

emissions reductions will no longer apply to pending SIP

submissions, it is not “absolutely clear the allegedly wrongful

behavior could not reasonably be expected to recur.” Already,

LLC, 133 S. Ct. at 727 (internal quotation marks omitted).

Therefore, the petition is not moot.

B.

Petitioners do not claim to have standing under Article III

of the U.S. Constitution based on injury to themselves. Instead,

they claim that they have associational standing because (1) at

least one of their members would have standing to sue; (2) the

interests they seek to protect are germane to the organizations’

purposes; and (3) neither the claim asserted nor the relief

requested requires the participation of individual members. See

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

528 U.S. 167, 181 (2000) (citing Hunt v. Wash. State Apple

Adver. Comm’n, 432 U.S. 333, 343 (1977)); Am. Chemistry

Council v. Dep’t of Transp., 468 F.3d 810, 815 (D.C. Cir. 2006).

Because Petitioners are not the objects of the Memorandum,

standing “is ordinarily ‘substantially more difficult’ to

establish.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 562

(1992) (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)); see

Sierra Club v. EPA, 292 F.3d 895, 899–900 (D.C. Cir. 2002).

Here, it is only necessary to address the first requirement, which

entails Petitioners showing that at least one of their members has

(1) suffered an “injury in fact” that is “concrete and

particularized,” and “actual or imminent, not conjectural or

hypothetical,” (2) the injury is “fairly traceable to the challenged

action,” and (3) “it is likely, as opposed to merely speculative,

that the injury will be redressed by a favorable [judicial]

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decision.” Laidlaw Envtl. Servs., 528 U.S. at 180–81 (citing

Defenders of Wildlife, 504 U.S. at 560–61); cf. Summers v. Earth

Island Inst., 555 U.S. 488, 498 (2009).

Petitioners have submitted two sets of declarations from

their members that are relevant to standing. The first set is from

three members who are concerned that by authorizing approval

of redesignation requests relying on CAIR, the Memorandum

has denied them the protection of “permanent and enforceable”

emission reductions “guarantee[d]” by the CAA. See Decl. of

Beth Remmes ¶¶ 6–7 (Sept. 17, 2013); Decl. of William Lide

¶¶ 8–9 (Sept. 9, 2013); Decl. of Kelly Pierce ¶¶ 11–12 (Sept. 22,

2013). These members identify two areas in which they live —

Chicago and Atlanta — that EPA proposed to redesignate from

non-attainment to attainment based on CAIR emissions

reductions. Although they live in areas that currently meet the

applicable NAAQS, these members fear those areas may fail to

do so if, in the future, emission sources increase their emissions

when CAIR is replaced by another program to control interstate

transport of pollutants and those increased emissions cause the

Chicago or Atlanta areas to violate the NAAQS. See, e.g.,

Remmes Decl. ¶ 7. They are aware CAIR “was struck down by

a court years ago,” and they consequently view CAIR emissions

reductions to be “temporary.” See, e.g., id. ¶ 6. As Petitioners

note, this court instructed EPA to replace CAIR “expeditiously.”

EME Homer City, 696 F.3d at 38 n.35; see also North Carolina,

550 F.3d at 1178.

The second set of declarations is from Petitioners’ members

who visit Shenandoah National Park in Virginia, or Mingo

National Wildlife Refuge in Missouri, or Mammoth Cave

National Park in Kentucky. They understand the Memorandum

to be EPA’s general authorization to approve regional haze

plans that rely on CAIR emission reductions as an alternative to

requiring sources to use BART. See Decl. of Drew S. Toher

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¶¶ 5–7 (Sept. 20, 2013) (National Parks Conservation

Association); Decl. of John Hickey ¶¶ 5–7 (Aug. 29, 2013)

(Sierra Club); Decl. of Jim Duffer ¶¶ 4–7 (Sept. 10, 2013)

(Sierra Club); Decl. of Joseph Roberts ¶¶ 4–7 (Sept. 6, 2013)

(NRDC). Although the “permanent and enforceable” provision

of the CAA applies only to redesignation requests and the

regional haze regulation cited by Petitioners refers only to

“enforceable emissions limitations,” 40 C.F.R. § 51.308(d)(3),

EPA requires “as a policy matter” that control measures in a

regional haze plan “be permanent for the length of the relevant

plan,” Resp’t’s Br. 28. These members are concerned that

reliance on CAIR will allow greater pollution in the class I areas

they visit. See, e.g., Toher Decl. ¶ 7.

Based on these declarations Petitioners maintain that they

have shown Article III injury-in-fact because the Memorandum

“strips away the Clean Air Act’s guarantee of enduring air

quality protections, threatening imminent injury to members

who live and breathe in areas where temporary emissions

reductions from CAIR can now substitute for the durable

emissions controls that they are guaranteed under the Act.”

Pet’rs’ Br. 16. Their members are directly injured, Petitioners

maintain, because they rely on the guarantee that the places they

live and visit will not be found to have met required air quality

standards unless the State can demonstrate that air quality

improvement was caused by “permanent and enforceable”

emissions reductions. Between August 8, 2011,when the

Transport Rule was promulgated, and December 31, 2011, when

this court stayed the rule, EPA had determined that CAIR

emissions reductions “could not be considered to be permanent.”

See, e.g., Proposed Rule, Redesignation of the Birmingham 2006

24-Hour Fine Particulate Matter Nonattainment Area to

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Attainment, 76 Fed. Reg. 70,091, 70,093 (Nov. 10, 2011).1

Since the Memorandum was issued, EPA has approved

submissions relying on CAIR emissions reductions as

“sufficiently permanent and enforceable for purposes such as

redesignation.” Redesignation of the Birmingham 2006 24-

Hour Fine Particulate Matter Nonattainment Area to Attainment,

78 Fed. Reg. 5306, 5308 (Jan. 25, 2013).2 EPA has also

proposed to approve a regional haze plan relying on CAIR as an

alternative to BART. See Proposed Rule, Connecticut; Regional

Haze, 78 Fed. Reg. 5,158, 5,160–61 (Jan. 24, 2013).

Petitioners fail to show they are suffering an injury-in-fact

that is fairly traceable to the Memorandum. First, their members

who are concerned about the effects of redesignations based on

CAIR emissions reductions live in the Chicago or Atlanta areas,

see Remmes Decl. ¶ 3; Lide Decl. ¶ 2; Pierce Decl. ¶ 2, which

are currently achieving the NAAQS. See Redesignation of the

Atlanta 1997 8-Hour Ozone Moderate Nonattainment Area to

Attainment, 78 Fed. Reg. 72,040, 72,041 (Dec. 2, 2013);

Redesignation of the Chicago Area to Attainment of the 1997

Annual Fine Particulate Matter Standard, 78 Fed. Reg. 60,704,

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See also Proposed Rule, Redesignation of the Kentucky

Portion of the Cincinnati-Hamilton 1997 Annual Fine Particulate

Matter Nonattainment Area to Attainment, 76 Fed. Reg. 65,458,

65,460 (Oct. 21, 2011); Proposed Rule, Redesignation of the

Greensboro-Winston-Salem-High Point 1997 Annual Fine Particulate

Matter Nonattainment Area to Attainment, 76 Fed. Reg. 59,345,

59,347 (Sept. 26, 2011).

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See also Redesignation of the Birmingham 1997 Annual

Fine Particulate Matter Nonattainnment Area to Attainment, 78 Fed.

Reg. 4341, 4343 (Jan. 22, 2013); Redesignation of the Ohio Portion

of the Huntington-Ashland 1997 Annual Fine Particulate Matter

Nonattainment Area to Attainment, 77 Fed. Reg. 76,883, 76,885–87

(Dec. 31, 2012).

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60,705 (Oct. 2, 2013). Petitioners do not challenge the NAAQS

and offer no evidence to show one of those members is suffering

an injury-in-fact from denial of the public health and public

welfare protections of the CAA. Instead, Petitioners speculate

that the Memorandum will permit excessive emissions after

CAIR is replaced by another interstate pollution program,

degrading air quality in the Chicago or Atlanta areas in violation

of the “permanent and enforceable” guarantee in the CAA.

Second, the members concerned about haze have read the

Memorandum to provide a general authorization to approve

haze plans based on CAIR emissions reductions. See Toher

Decl. ¶ 7; Hickey Decl. ¶ 7; Duffer Decl. ¶ 7; Roberts Decl. ¶ 7.

But the discussion of regional haze in the Memorandum can be

construed to authorize action only with regard to a single

pending haze plan. See Mem. at 2. None of Petitioners’

members claimed to have visited or stated an intent to visit class

I areas in Connecticut, which submitted the pending haze plan

affected by the Memorandum’s instruction to proceed. See

Resp’t’s Br. 17, 22; Intervenors’ Br. 13. As regards “two other

categories of regional haze actions taken prior to” vacatur of the

Transport Rule, the Memorandum stated EPA would await a

decision on its then-pending petition for rehearing in EME

Homer City. In those actions EPA partially disapproved

regional haze plans (including those of the States visited by

Petitioners’ members) relying on CAIR and issued federal

implementation plans relying on the Transport Rule, having

found that “the trading programs in the Transport Rule . . .

achieve greater reasonable progress towards the national goal of

achieving natural visibility conditions in Class I areas than

source-specific [BART].” Regional Haze: Revisions to

Provisions Governing Alternatives to Source-Specific Best

Available Retrofit Technology (BART) Determinations, Limited

SIP Disapprovals, and Federal Implementation Plans, 77 Fed.

Reg. 33,642, 33,642 (June 7, 2012); see id. at 33,645,

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33,653–54. Again, Petitioners offer no evidence one of their

members is suffering an injury-in-fact and instead speculate that

the Memorandum will allow for greater pollution in class I areas

after CAIR is replaced, lagging behind the visibility progress

achievable through use of BART.

Both of Petitioners’ claims of injury fail to qualify as actual

or imminent. Because “[e]nvironmental and health injuries

often are purely probabilistic,” the court has “generally

require[d] that petitioners” claiming “increased health risks” to

establish standing “demonstrate a ‘substantial probability’ that

they will be injured,” in order to avoid rendering the injury-in-

fact requirement moot. Natural Res. Def. Council v. EPA, 464

F.3d 1, 6 (D.C. Cir. 2006). The increased risk “must be ‘non-

trivial,’ . . . and ‘sufficient to take a suit out of the category of

the hypothetical.’” Id. (quoting Mountain States Legal Found.

v. Glickman, 92 F.3d 1228, 1234–35 (D.C. Cir. 1996)).

Petitioners rely on vague generalities and make no attempt to tie

EPA’s alleged failure to implement the CAA’s guarantees to a

substantial probability that they will suffer diminished air

quality. As EPA points out, Petitioners have offered no

evidence to suggest that CAIR-based emissions reductions will

be fleeting or that a replacement program will result in

increased emissions. See Resp’t’s Br. 16. To that extent

Petitioners’ allegations regarding a risk of concrete harm “rel[y]

on a highly attenuated chain of possibilities.” Clapper v.

Amnesty Int’l USA, 133 S. Ct. 1138, 1148 (2013).

Petitioners’ reliance on guarantees of “permanent”

emissions reductions is thus tantamount to “an abstract, and

uncognizable, interest in seeing the law enforced.” Animal

Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 432 (D.C.

Cir. 1998) (citing Allen v. Wright, 468 U.S. 737. 754 (1984)).

The cases on which Petitioners rely illustrate that their alleged

loss of statutory and regulatory “guarantees” fails to establish

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injury-in-fact. Unlike the petitioner in Natural Resources

Defense Council v. EPA, 643 F.3d 311, 318 (D.C. Cir. 2011),

Petitioners do not claim that the Memorandum delayed

attainment or eliminated incentives to reduce emissions.

Neither do Petitioners show a concrete aesthetic injury as in

Animal Legal Defense Fund, 154 F.3d at 431, where a plaintiff

witnessed “particular animals enduring inhumane treatment”;

Petitioners’ members refer to haze marring the visual beauty of

class I areas, see, e.g., Toher Decl. ¶ 6, that is no different from

the “guarantees” claim. Neither have Petitioners shown that the

alleged “stripping away” of guarantees, Reply Br. 7, caused

“uncertainty as to whether the EPA’s actions expose[d] [their

members] to excess air pollution,” as in New York Public

Interest Research Group v. Whitman, 321 F.3d 316, 325 (2d Cir.

2003). Petitioners’ members live in attainment areas and visit

class I areas as to which the Memorandum authorized no

change.

Further, because Petitioners have failed to establish that

they will likely suffer a substantive injury, their claimed

procedural injury — being denied the right to comment on the

Memorandum — necessarily fails. “[D]eprivation of a

procedural right without some concrete interest that is affected

by the deprivation — a procedural right in vacuo — is

insufficient to create Article III standing.” Summers, 555 U.S.

at 496; see also Nat’l Ass’n of Home Builders v. EPA, 667 F.3d

6, 15–16 (D.C. Cir. 2011).

Accordingly, we dismiss the petition for lack of

jurisdiction.