United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

DINÉ CARE and NATIONAL PARKS

CONSERVATION ASSOCIATION,

Plaintiffs,

 v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY and LISA P.

JACKSON,

Defendants.

 /

No. C 12-03987 JSW

ORDER GRANTING

DEFENDANT AND

INTERVENOR’S MOTIONS FOR

SUMMARY JUDGMENT AND

DISMISSING ACTION FOR LACK

OF SUBJECT MATTER

JURISDICTION

Now before the Court are the parties’ cross motions for summary judgment. Plaintiffs

Diné Care and National Parks Conservation Association (collectively “Plaintiffs”) move to have

the Court issue an order requiring Defendant, the United States Environmental Protection

Agency and Lisa Jackson in her official capacity as administrator (collectively “EPA”), issue a

final rule within one year that establishes Best Available Retrofit Technology for the Navajo

Generating Station. The EPA and the intervenor-defendant Salt River Project Agricultural

Improvement and Power District (“Intervenor”) each cross-move for summary judgment on the

basis that the Court lacks subject matter jurisdiction to hear Plaintiffs’ complaint under the

Clean Air Act (“CAA”). Having considered the parties’ pleadings and the relevant legal

authority, the Court hereby GRANTS the EPA’s and Intervenor’s motions for summary

judgment. The Court finds that it lacks subject matter jurisdiction of this citizen suit and

dismisses the action.

Case3:12-cv-03987-JSW Document55 Filed12/03/13 Page1 of 6
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

BACKGROUND

In this citizen suit, Plaintiffs allege that the EPA have unreasonably delayed

promulgating a final rule establishing Best Available Retrofit Technology (“BART”) for the

Navajo Generating Station (“NGS” or “Station”). The Station is a coal-fired power plant

located on the Navajo National Indian Reservation located in northern Arizona, approximately

12 miles from the eastern edge of Grand Canyon National Park. Plaintiffs contend that the

EPA’s regulations create a mandatory duty requiring the EPA to make a BART determination

for certain sources of air pollution within Indian territory. Plaintiffs allege that the CAA

requires the EPA to “remedy unhealthful, scenery-impairing air pollution in protected national

parts and wilderness areas in the American Southwest.” (Complaint at ¶ 1.) Plaintiffs allege

that pollution from the Station has “plagued the Grand Canyon since coal was first fed to its

boilers over thirty years ago.” (Id. at ¶ 10.) They further allege that on an annual basis, the

Station discharges into the air of the Southwest over 34,000 tons of nitrous oxides, 1,900 of

particulate matter, 3,690 tons of sulfur dioxide, and 20 million tons of carbon dioxide. (Id. at ¶

11.) Plaintiffs allege this pollution has caused visibility impairment which requires that the

EPA mandate the installation and operation of BART.

Plaintiffs further allege that the EPA provided written notification to the operators at the

Station that regional BART analyses were required because the facility was BART-eligible. 

(See id. at ¶ 31; see also Motion Statement of Facts at ¶ 9; Ex. 4 (email from EPA employee

indicating that the “EPA will stipulate that ‘EPA has considered NGS to be BART-eligible and

subject to BART since July 22, 2007.’”).)

Plaintiffs have filed this action to have the Court declare that the EPA’s failure to

promulgate final BART determination for the Navajo Generating Station constitutes a failure to

perform a nondiscretionary duty without unreasonable delay. Plaintiffs also seek to have this

Court order the EPA to issue final BART determinations forthwith. (See Complaint at ¶ 52.) 

The EPA and Intervenor seek to dismiss Plaintiffs’ action on the ground that the Court lacks

subject matter jurisdiction to entertain this matter. 

Case3:12-cv-03987-JSW Document55 Filed12/03/13 Page2 of 6
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

 The Court does not find persuasive or binding the dicta in the footnote of Maine v.

Thomas, 874 F.2d 883, 888 n.7 (1st Cir. 1989), which indicates that the only nondiscretionary duties under the CAA must be statutory and not regulatory. See Leavitt, 355 F.

Supp. 2d at 556 (holding that under the CAA, the phrase “under this chapter” encompasses

both the statutory obligations imposed in the Act itself, and the regulatory obligations

promulgated under the auspices of the Act.”)

3

ANALYSIS

Plaintiffs contend that this Court has subject matter jurisdiction under the citizen suit

provision of the CAA. 42 U.S.C. § 7604(a)(2). This provision of the CAA waives the

government’s sovereign immunity as to a claim “against the Administrator where there is

alleged a failure of the Administrator to perform any act or duty under this chapter which is not

discretionary . . . .” Id. If sovereign immunity is waived under this provision, then the Court is

vested with subject matter jurisdiction. If, however, sovereign immunity has not been waived,

the Court lacks subject matter jurisdiction to hear the matter. See United States v. Mitchell, 463

U.S. 206, 212 (1983) (holding that absent an express waiver of sovereign immunity, the United

States is not amenable to suit). As a rule of statutory construction, any waiver of sovereign

immunity must be narrowly construed in favor of the government. See U.S. Dep’t of Energy v.

Ohio, 503 U.S. 607, 6115 (1992).

Pursuant to the plain language of the CAA, a person may only bring an action to compel

the Administrator to perform a duty that is “not discretionary.” 42 U.S.C. § 7604(a)(2). 

Accordingly, the Court first must determine whether the duty allegedly neglected is a

mandatory duty or a duty that was merely discretionary. See Sierra Club v. Leavitt, 355 F.

Supp. 2d 544, 549 (D.D.C. 2005). Plaintiffs allege that although the EPA started the process of

determining the best technology for the project, the EPA has not issued a final BART

determination in violation of 40 C.F.R. § 49.11. This regulation governs the EPA’s authority to

adopt federal plans for tribal lands. See 42 U.S.C. § 7601(d)(4). The question of whether this

regulation requires conduct by the Administrator that is not discretionary calls for an

interpretation of the regulation, which is discernable from the language of the regulation itself.1

In 1998, the EPA promulgated regulations at 40 C.F.R. Part 49 which are referred to as

the Tribal Authority Rule (“TAR”) relating to the implementation of CAA programs on tribal

Case3:12-cv-03987-JSW Document55 Filed12/03/13 Page3 of 6
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

lands. The TAR allows the EPA to treat eligible Indian tribes in the same manner as states

“with respect to all provisions of the [CAA] and implementing regulations, except for those

provisions [listed] in § 49.4 and the [EPA] regulations that implement those provisions.” 40

C.F.R. § 49.3.

According to 40 C.F.R. § 49.11, the EPA Administrator 

(a) Shall promulgate without unreasonable delay such Federal implementation

plan provisions as are necessary or appropriate to protect air quality, consistent

with the provisions of section 304(a) and 301(d)(4), if a tribe does not submit a

tribal implementation plan [TIP] meeting the completeness criteria of 40 C.F.R.

part 51, appendix V, or does not receive EPA approval of a submitted tribal

implementation plan.

Plaintiffs contend that the EPA finding in 2007 that the Station was eligible for and subject to

BART requirements was tantamount to its finding that it was both necessary and appropriate to

promulgate BART determinations without unreasonable delay pursuant to 40 C.F.R. § 49.11. 

Plaintiffs argue that the EPA’s BART eligibility determination triggered a mandatory legal duty

pursuant to the regional haze regulations which provide that “[t]he State . . . must submit a

determination of BART for each BART eligible source.” at 40 C.F.R. § 51.308(e)(1)(ii). 

However, Plaintiffs’ contentions lack merit. First, the EPA’s stipulation that the Station

was eligible for BART did not trigger the provision of 40 C.F.R. § 49.11 which requires the

EPA to promulgate an implementation plan without unreasonable delay. And second, the

provision cited by Plaintiffs requiring the State to submit a determination for each eligible

BART source does not apply to the Tribe or to the EPA.

Plaintiffs cite the alleged finding by the EPA in 2007 that the Navajo Generating Station

was eligible for and subject to BART requirements. In making this citation, Plaintiffs contend

that this finding constituted a formal determination that BART implementation was necessary

and appropriate. It follows then, according to Plaintiffs, that such an implementation by the

EPA is both nondiscretionary and must be promulgated without reasonable delay. However,

Plaintiffs’ contention is based upon the faulty premise that the 2007 finding was a formal

determination that BART implementation was necessary and appropriate. Such a formal

determination must follow a thorough notice and comment process. See Arizona Public Service

Case3:12-cv-03987-JSW Document55 Filed12/03/13 Page4 of 6
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

 It appears that the deadline for submission of public comments was May 6, 2013. 

The process should proceed with all due speed.

5

Co. v. EPA, 562 F.3d 1116, 1125 (10th Cir. 2009) (holding that under tribal regulation, formal

federal process requires implementation plan under Section 110 of the CAA, 42 U.S.C. §

7410(a)(2)(A)). Only after such a formal process has been completed does the plan itself have

to be promulgated without reasonable delay. It is clear from the record before this Court that

the process to make such a formal determination has not been completed, although the Court

exhorts the EPA to proceed with efficiency.2

Second, Plaintiffs’ insertion of the EPA in the quoted passage of the regulation

notwithstanding, the provision upon which Plaintiffs rely to impose a nondiscretionary duty on

the EPA does not actually impose such a duty on the agency, but rather on the States. See, e.g.,

40 C.F.R. § 51.308(e)(1)(ii). The provisions of the EPA’s visibility regulations impose those

regulations on the States, not on the EPA. See generally 40 C.F.R. Part 51, Subpart P, §§

51.300-.309; see also id. § 51.300(a) (“The primary purposes of this subpart are to require

States to develop programs to assure reasonable progress toward meeting the national goal of

preventing any future, and remedying any existing, impairment of visibility in mandatory Class

I Federal areas . . . .”); id. § 51.308(e) (“The State must submit an implementation plan

containing emission limitations representing BART . . . .”); id. § 51.308(e)(1)(ii) (“To address

the requirements for BART, the State must submit an implementation plan containing . . . [a]

determination of BART for each BART-eligible source in the State . . . .”).

In an effort to avoid the application of these regulations to only the states and not to

tribes, Plaintiffs merely posit that the “EPA regulation accepted the mandatory duty imposed on

a tribe (as a state) to promulgate BART determinations for pollution sources on tribal land –

when a tribe does not make such a determination.” (Opp. Br. at 3.) Plaintiffs contend that

“[o]nce it became apparent that the Navajo Nation was not going to make a BART

determination for NGS, EPA was required to step in, pursuant to 40 C.F.R. § 49.11, and

complete this task without unreasonable delay.” (Id. at 5.) 

Case3:12-cv-03987-JSW Document55 Filed12/03/13 Page5 of 6
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

However, under the operative regulations, tribes and states are not always treated in the

same manner. There is no duty imposed on tribes to promulgate or submit implementation

plans. See 40 C.F.R. § 51.308(a)(1)(ii) (EPA’s regional haze regulation require only that “the

State must submit an implementation plan” promulgating BART determinations for applicable

sources). The specific terms of the regulations make clear that they only confer such duties

upon the states. Under the TAR, only “[t]ribes meeting eligibility criteria of § 49.6 shall be

treated in the same manner as States” for any CAA program. 40 C.F.R. § 49.3. The criteria for

eligibility listed in this section include the requirement that the tribe “is reasonably expected to

be capable, in the EPA Regional Administrator’s judgment, of carrying out the functions to be

exercised” for the specific CAA program. Id. § 49.6(d). Without this determination by the

regional administrator, a tribe will not be treated the same way as a state for the purpose of any

CAA program, including regional haze program. As the Navajo Tribe has made no formal

request for a determination of such eligibility, the EPA does not have the authority to treat the

tribe as it would a state for purposes of BART determination for the Station. See 42 U.S.C. §

7601(d)(2). Accordingly, the Court cannot find that EPA has a mandatory obligation under the

regulations.

CONCLUSION

For the foregoing reasons, the Court GRANTS the EPA’s and Intervenor’s motions for

summary judgment. The Court finds that it lacks subject matter jurisdiction of this citizen suit

and dismisses the action. A separate judgment shall issue and the Clerk shall close the file.

IT IS SO ORDERED.

Dated: December 3, 2013 

JEFFREY S. WHITE

UNITED STATES DISTRICT JUDGE

Case3:12-cv-03987-JSW Document55 Filed12/03/13 Page6 of 6