IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SIERRA CLUB,

Plaintiff,

vs.

LISA JACKSON, ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION 

AGENCY,

Defendants.

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Case No. 1:11-CV-00100-JDB

 

[PROPOSED] BCCA APPEAL GROUP’S MOTION TO DISMISS AND MEMORANDUM 

OF LAW IN SUPPORT THEREOF 

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), BCCA Appeal Group 

(“BCCAAG”), by and through counsel, hereby moves this Court to dismiss the claims asserted by 

Sierra Club in this action because (i) Sierra Club has failed to establish constitutional standing; 

(ii) the Court does not have jurisdiction to grant the requested relief; and (iii) Sierra Club has 

failed to state a claim upon which relief can be granted. This Motion is based on the below 

memorandum of law, and any other authorities that the Court may consider. 

MEMORANDUM OF LAW IN SUPPORT OF MOTION

INTRODUCTION

This action is nothing more than an attempt by Sierra Club to substitute its policy

preferences and objectives for those of Congress and the Environmental Protection Agency

(“EPA”). Not only is such an attempt improper, but Sierra Club has already challenged the 

regulations at issue in this case, and the D.C. Circuit has already rejected that challenge. It is for 

good reason that parties are precluded from re-litigating issues and claims time and time again: relitigation wastes judicial resources and promotes inconsistent judgments. Because the positions 
2

taken by Sierra Club in this action have already been considered and rejected, and more 

importantly, because this Court lacks jurisdiction to consider Sierra Club’s claims, the Court 

should dismiss the action in full. 

This case involves essentially one claim: Sierra Club asserts that EPA, pursuant to the 

Clean Air Act (“CAA”), must make statutory determinations whether various air quality control 

regions, including the Houston-Galveston-Brazoria (“HGB”) area, attained EPA’s now revoked

1-hour national ambient air quality standard for ozone (the “1-hour ozone standard”) as of the 

applicable attainment date, and that EPA has failed to comply with that obligation. Sierra Club 

also contends that if EPA finds that a severe nonattainment area under the 1-hour ozone standard, 

such as HGB, “‘failed to attain the [1-hour ozone standard] by the applicable attainment date,’ all 

major sources of volatile organic compounds (‘VOCs’)” and oxides of nitrogen “‘are required to 

pay a fee to the State . . . until the area is redesignated as an attainment area for ozone.’” Compl. 

¶ 39 (quoting and citing Clean Air Act (“CAA”) Section 185, 42 U.S.C. § 7511d(a)). Sierra Club 

seeks declaratory and injunctive relief that require EPA to determine whether the areas identified 

in the Complaint met the 1-hour ozone standard as of their attainment date. However, the relief 

requested cannot be awarded for several reasons. 

First, Sierra Club has failed to establish standing under Article III. Because Sierra Club

alleges that it has associational standing, it must identify at least one member who would have 

standing in his own right to bring this action. The D.C. Circuit recently reaffirmed that an 

association fails to meet its burden when it simply avers that “some” member “somewhere” has 

suffered an injury—the association must identify a specific member. Sierra Club has plainly 

failed to do so. Further, even assuming that Sierra Club had identified a member, the Complaint 
3

includes no allegations showing that EPA’s alleged inaction has caused anyone an injury or that 

forcing EPA to act would redress any injury.

Second, in seeking to require EPA to apply the 1-hour ozone standard, Sierra Club is 

essentially challenging EPA’s decision in 2004 to revoke the 1-hour ozone standard and replace it 

with an 8-hour ozone standard. When EPA revoked the 1-hour standard, it expressly ruled that it 

no longer had an obligation to make the findings sought by Sierra Club: “Upon revocation of the 

1-hour [ozone standard] for an area, EPA is no longer obligated–(A) [t]o determine pursuant to 

section 181(b)(2) or section 179(c) of the CAA whether an area attained the 1-hour [ozone 

standard] by that area's attainment date for the 1-hour [ozone standard].” 40 C.F.R. 

§ 51.905(e)(2)(i); 69 Fed. Reg. 23,857, 24,000 (Apr. 30, 2004). In seeking to require EPA to 

make the findings that it requests, Sierra Club is asking this Court to undo aspects of rules set 

forth in 2004. However, under the CAA, if a party wants to challenge a regulation promulgated 

by EPA, the party “shall” petition for review in the D.C. Circuit no later than 60 days from the 

date that notice of such action appears in the Federal Register. Therefore, this action has not only

been filed in the wrong court, but it is also untimely by more than six years.

Third, even if Sierra Club could challenge the regulations at issue, they have already done 

so and their challenge was rejected. South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 

(D.C. Cir. 2006), modified on reh’g, 489 F.3d 1245 (D.C. Cir. 2007). In South Coast, the court 

upheld both the revocation of the 1-hour ozone standard and EPA’s elimination of its obligation 

to determine whether areas attained the 1-hour standard by their attainment date. Accordingly,

Sierra Club’s requested relief—forcing EPA to make its requested findings under the 1-hour 

ozone standard—is barred by the regulations themselves and by the D.C. Circuit’s decision 

upholding the regulations.
4

Finally, Sierra Club’s lawsuit amounts to an effort to bypass, under cover of an order from 

this Court, the administrative procedures that must be followed under the CAA. Sierra Club has 

not sought, and apparently does not intend to seek, recourse through proper administrative 

channels. This Court should not allow Sierra Club through this lawsuit to avoid the 

administrative procedures that Congress saw fit to prescribe. 

For these reasons, the Court should dismiss the case for lack of jurisdiction and for failure 

to state a claim upon which relief can be granted.

BACKGROUND

The CAA requires EPA to set a national ambient air quality standard (“NAAQS”) for 

ozone, which is a standard for the concentration of ozone in the air that the states seek to achieve. 

In 1979, EPA, using 1-hour average concentration as the measure, set the standard at 0.12 parts 

per million (“ppm”) (the “1-hour ozone standard”). See 44 Fed. Reg. 8202 (Feb. 8, 1979). 

In 1990, Congress amended the CAA to require EPA and the states to develop attainment 

plans for areas not in compliance with that standard. An attainment plan, or state implementation 

plan (“SIP”), includes the methods by which the state will work to attain the applicable ozone 

standard by its attainment date. EPA was also required to classify nonattainment areas as 

marginal, moderate, serious, severe, or extreme, depending on an area’s deviation from the 1-hour 

ozone standard. The HGB area was classified as a “severe” nonattainment area and assigned an 

attainment date of November 15, 2007. See 42 U.S.C. § 7511(a)(1)–(2); 40 C.F.R. § 81.344. 

In addition, the 1990 amendments added a new Section 185 to the CAA to impose penalty 

fees in “severe” and “extreme” areas that failed to attain the 1-hour ozone standard by their 

attainment dates. If applicable, Section 185 requires states, as part of their SIPs, to pass 

legislation or develop administrative rules to collect the penalty fees from major stationary

sources in the nonattainment area. 42 U.S.C. § 7511d(a). 
5

In 1997, EPA adopted a more stringent standard for ozone—the 8-hour ozone standard, 

which is met when the 8-hour average concentration of ozone in a given area is 0.08 ppm or less. 

See 40 C.F.R. § 50.10; 62 Fed. Reg. 38,894 (July 18, 1997). In 2004, to manage the transition 

from the 1-hour ozone standard to the 8-hour ozone standard, EPA promulgated the Phase I ozone 

implementation rule. The Phase I rule revoked the 1-hour ozone standard and eliminated EPA’s 

obligation to determine whether an area “attained” the 1-hour standard by its attainment date. See

40 C.F.R. § 50, 51, 81 (as effective June 15, 2004); 69 Fed. Reg. 23,857 (Apr. 30, 2004); 40 

C.F.R. § 51.905(e)(2)(i)(A) (“Upon revocation of the 1-hour [standard] for an area, EPA is no 

longer obligated . . . [t]o determinate pursuant to section 181(b)(2) or section 179(c) of the CAA 

whether an area attained the 1-hour [standard] by that area’s attainment date for the 1-hour 

[standard].”). 

Several parties, including the Sierra Club, challenged the validity of the Phase I rule on 

various grounds in the South Coast litigation. The D.C. Circuit upheld nearly all aspects of the 

Phase I rule, and specifically upheld EPA’s revocation of the 1-hour ozone standard. The court 

explained that:

EPA retains the authority to revoke the one-hour standard so long as 

adequate anti-backsliding provisions are introduced. Additionally, 

EPA was not, as the Environmental petitioners contend, arbitrary 

and capricious in withdrawing the one-hour requirements, having 

found in 1997 that the eight-hour standard was “generally even 

more effective in limiting 1-hour exposures of concern than is the 

current 1-hour standard.” [62 Fed. Reg. at 38,863] The only 

remaining requirements as to the one-hour NAAQS are the antibacksliding limitations.
6

472 F.3d at 899 (emphasis added). Further, the court, by not expressly rejecting EPA’s 

elimination of its obligation to make attainment findings under the 1-hour standard as of an area’s 

attainment date, upheld that portion of the Phase I rule.1 

Although the 1-hour ozone standard was validly revoked and replaced with the 8-hour 

standard, the D.C. Circuit and EPA interpreted Section 172(e) to require EPA to promulgate 

“anti-backsliding” measures that are “not less stringent than the controls” that would have been 

“applicable” if the 1-hour ozone standard had remained in place. See CAA § 172(e), 42 U.S.C. 

§ 7502(e); South Coast, 472 F.3d at 900. That is, Section 172(e) does not require Section 185 

fees, only an anti-backsliding measure that is “not less stringent” than a Section 185 fee program. 

And EPA in fact has begun to promulgate anti-backsliding measures for areas that failed 

to attain the 1-hour ozone standard, consistent with CAA Section 172(e) and the South Coast

decision, without the imposition of Section 185 fees. For example, two “severe” nonattainment 

areas recently sought Termination Determinations (the Baton Rouge, Louisiana and Sacramento, 

California areas), and in 2011, EPA proposed administrative rules that would establish Section 

185 “Termination Determinations” for those two areas. If finalized, these Termination 

Determinations would include a finding by EPA that the areas in question have currently attained 

the revoked 1-hour ozone standard due to permanent and enforceable emission reductions and 

encompass a legal determination that the areas in question are no longer subject to an antibacksliding requirement associated with Section 185 fees. See 76 Fed. Reg. 28,696 (May 18, 

2011) (Sacramento Metro Area); 76 Fed. Reg. 17,368 (Mar. 29, 2011) (Baton Rouge). Notably,

 

1

 The only provisions of the Phase I rule that the D.C. Circuit vacated were those that addressed 

the following requirements: New Source Review, or “NSR” (codified at 40 C.F.R. § 

51.905(e)(4)(i)); Section 185 fees (codified at 40 C.F.R. § 51.905(e)(2)(ii)); Contingency plans 

(codified at 40 C.F.R. § 51.905(e)(2)(iii)); and Motor Vehicle Emission Budgets (codified at 40 

C.F.R. § 51.905(e)(3)). 472 F.3d at 900–05; 489 F.3d at 1248 (confirming that the Phase I rule 

was “vacated only to the extent that the court has sustained challenges to it”).
7

EPA proposed no findings as to these areas’ status with respect to the revoked 1-hour ozone 

standard as of their attainment dates, which have passed. See 40 C.F.R. § 81.305 (recognizing 

Sacramento as a “severe-15” 1-hour ozone nonattainment area (an area with a November 15, 2005 

attainment date; see 42 U.S.C. § 7511(a)(1) & tbl. 1)) 68 Fed. Reg. 20,077 (Apr. 24, 2003) 

(establishing November 15, 2005 as Baton Rouge’s 1-hour ozone attainment date). 

In addition, a guidance memorandum issued by EPA on January 5, 2010 points out that 

“[O]nce an area attains the 1997 8-hour ozone standard, which replaced the now revoked 1-hour 

standard, the purpose of retaining the section 185 fee program as an anti-backsliding measure 

would also be fulfilled as the area would have attained the 8-hour standard for which the fee 

program was retained as a transition measure.” Memorandum from Stephen D. Page, Director, 

Office of Air Quality Planning and Standards; regarding Guidance on Developing Fee Programs 

Required by Clean Air Act Section 185 for the 1-Hour Ozone NAAQS (Jan. 5, 2010), at 3.2 This 

guidance memorandum also explained that, because the 8-hour ozone standard is more stringent 

than the 1-hour ozone standard, a Termination Determination may also be available for an area if 

that area has attained the 8-hour ozone standard. See id.

In the case of HGB, although currently designated as a “severe” nonattainment area for the 

8-hour ozone standard, see 40 C.F.R. § 81.344, available monitoring data indicate that the HGB 

area attained the 8-hour ozone NAAQS as of the 2007–2009 measurement period. See Finding of 

Failure to Submit Certain State Implementation Plans Required for the 1-Hour Ozone NAAQS, 

75 Fed. Reg. 232 (Jan. 5, 2010) (noting that current air quality data indicate that the HGB area has 

attained the 1997 8-hour standard). Accordingly, the State of Texas has submitted a request to 

EPA for a Termination Determination based on HGB’s attainment of the 8-hour ozone standard to 

 

2

 A judicial challenge to this guidance document is currently pending before the D.C. Circuit. See 

NRDC v. EPA, No. 10-1056 (D.C. Cir.).
8

satisfy the anti-backsliding requirements of Section 172(e) with respect to Section 185 fees. Once 

the Termination Determination is finalized by EPA in fulfillment of Section 172(e), HGB would 

no longer face any risk of Section 185 fees under the 1-hour ozone standard.3

ARGUMENT

 The Court should dismiss this action for two separate and independent reasons. First, the 

Court lacks jurisdiction to entertain Sierra Club’s claims. Second, Sierra Club has failed to state a 

claim upon which relief can be granted.

I. THE COURT LACKS JURISDICTION BECAUSE SIERRA CLUB LACKS 

STANDING.

A. Sierra Club Has Not Identified A Member With Article III Standing.

Given that Sierra Club does not allege that it, as a corporate entity, has suffered an injury, 

it is presumably relying on its status as an association to establish standing under Article III. To 

adequately allege associational standing, an association must allege, in part, that its members 

would have standing in their own right. Hunt v. Washington State Apple Adver. Comm’n, 432 

U.S. 333, 343 (1977). Thus, the association must allege as to its members: (i) an injury-in-fact, 

(ii) causation, and (iii) redressibility. Fund for Animals, Inc. v. Norton, 322 F.3d 728, 732–33 

(D.C. Cir. 2003). 

However, as the U.S. Court of Appeals for the D.C. Circuit recently explained, “When a 

petitioner claims associational standing, it is not enough to aver that unidentified members have 

been injured. Rather, the petitioner must specifically identify members who have suffered the 

requisite harm.” Chamber of Commerce of the United States of Amer. v. EPA, No. 09-1237, 2011 

WL 1601753, at *4 (D.C. Cir. Apr. 29, 2011) (emphasis added; citation omitted) (holding that 

 

3

 The Texas Commission on Environmental Quality (“TCEQ”) estimated in 2009, in connection 

with a proposed rule to implement Section 185 fees, that the annual cost for HGB major sources 

“could be between $73,134,000 and $124,269,292.” 34 Tex. Reg. 8644, 8651 (Dec. 4, 2009). 

The proposed rule was not finalized.
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“[b]ecause the Chamber has not identified a single member who was or would be injured by

EPA’s waiver decision [the regulatory action at issue], it lacks standing to raise this challenge”).

Here, Sierra Club has plainly failed to identify a single member who is allegedly injured 

by the absence of the findings sought by Sierra Club. Rather, Sierra Club relies on the 

generalized assertion that it “has over 750,000 members nationally,” including “[m]embers and 

staff [who] live, work, recreate, and travel throughout the areas at issue in this case.” Compl. ¶ 9. 

But if the general membership characteristics of the U.S. Chamber of Commerce are inadequate 

to establish standing without identification of a specific member, see Chamber of Commerce, 

2011 WL 1601753, at *4, then so are the general membership characteristics of Sierra Club. 

Accordingly, this action must be dismissed for lack of jurisdiction.

B. Sierra Club Has Not Alleged An Injury-in-Fact, Causation, Or 

Redressability.

Even if Sierra Club were to identify one or more members who “live, work, recreate, and 

travel throughout the areas at issue in this case,” Compl. ¶ 9, Sierra Club has still failed to 

establish Article III standing because it has not identified an injury-in-fact suffered by its 

members that was caused by EPA’s inaction that would be redressed by Sierra Club’s requested 

relief. See, e.g., Chamber of Commerce, 2011 WL 1601753, at *5 

Most significantly, although Sierra Club alleges injuries based on exposure to ozone, 

Compl. ¶ 9, the complaint does not establish a link between Sierra Club’s requested relief and a 

decrease in ozone levels. Thus, Sierra Club has not shown that an alleged injury from exposure to 

ozone could be redressed by EPA findings on the level of ozone in certain areas as of their 

attainment dates (all of which, notably, are in the past). 

To the extent Sierra Club alleges that the requested EPA statutory determinations would 

provide “procedural protection and opportunities,” id. ¶ 10, Sierra Club has identified no reason 
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to infer that EPA’s current approach to implementing anti-backsliding measures, rather than the 

requested determinations, would constitute an injury-in-fact to Sierra Club’s members. 

Similarly, to the extent that Sierra Club alleges that the requested EPA determinations 

would reduce “uncertainty for Sierra Club’s staff and members as to whether they are exposed to 

excess air pollution,” id. ¶ 10, the Court should disregard such an alleged “injury” because it 

would not be remedied by the findings that Sierra Club seeks. EPA has long provided air quality 

data from its Air Quality System database on its website. See EPA, AirData, 

http://www.epa.gov/air/data/index.html (last accessed June 5, 2011) (providing air quality 

monitoring data from EPA’s Air Quality System and National Emission Inventory databases). 

This is the same information that EPA uses to make attainment status findings. See, e.g., 74 Fed. 

Reg. 63,993, 63,994 (Dec. 7, 2009) (determining that various ozone nonattainment areas in New 

York and New Jersey had attained the 1-hour and 8-hour ozone standards, and noting that “[t]hese 

determinations are based upon certified ambient air monitoring data . . . . All these data are 

available in the EPA Air Quality System (AQS) database.”). The formula for calculating an 

area’s attainment of the 1-hour standard, based on the information on EPA’s website, is a simple 

arithmetic exercise, based on calculations explained in EPA’s regulations. See 40 C.F.R. § 50.9 

(defining the 1-hour ozone standard), App. H (explaining how to calculate attainment of the 1-

hour ozone standard). Thus, there is no “uncertainty” to be remedied by an EPA finding on ozone 

levels.

II. THE COURT LACKS JURISDICTION BECAUSE THIS ACTION IS UNTIMELY.

The jurisdiction of courts to consider challenges to EPA regulations is strictly limited. A

party has only 60 days after receiving notice of the regulation to petition for review. Because 

Sierra Club is effectively challenging regulations that were promulgated in 2004, this action is 

untimely and the Court lacks jurisdiction to consider it.
11

As explained above, the EPA regulations at issue were promulgated and published in the 

Federal Register in 2004. See 69 Fed. Reg. at 24,000 (Apr. 30, 2004). These regulations provide 

in pertinent part that “[u]pon revocation of the 1-hour [ozone standard] for an area, EPA is no 

longer obligated—(A) [t]o determine pursuant to section 181(b)(2) or section 179(c) of the CAA 

whether an area attained the 1-hour [ozone standard] by that area’s attainment date for the 1-hour 

[ozone standard].” 40 C.F.R. § 51.905(e)(2)(i).

The CAA provides that:

A petition for review of . . . nationally applicable regulations 

promulgated, or final action taken, by the [EPA] Administrator 

under this chapter [the Clean Air Act] may be filed only in the 

United States Court of Appeals for the District of Columbia. . . . 

Any petition for review under this subsection shall be filed within 

sixty days from the date notice of such promulgation, approval, or 

action appears in the Federal Register.

CAA § 307(b)(1), 42 U.S.C. § 7607(b)(1). 

Further, the CAA prohibits the use of a citizen suit as a means of collaterally obtaining 

judicial review of validly promulgated EPA regulations: “Nothing in this chapter [the CAA] shall 

be construed to authorize judicial review of regulations or orders of the [EPA] Administrator 

under this chapter, except as provided in this section.” 42 U.S.C. § 7607(e). As a sister court in 

this district has noted, “It is well-settled that subsection 307(b)(1) of the CAA provides the 

exclusive means of obtaining review of final actions by EPA under the CAA.” Royster-Clark 

Agribusiness, Inc. v. Johnson, 391 F. Supp. 2d 21, 26 (D.D.C. 2005) (where plant owner sought 

relief against EPA for issuing a “notice of violation,” holding that the district court lacked 

jurisdiction but that the notice also was not a final action subject to review under section 

307(b)(1)); see also Hagedorn v. Union Carbide, 363 F. Supp. 1061, 1067 (N.D. W.Va. 1973) 

(explaining that the language now codified in CAA section 307(b)(2) “evidences a clear 
12

congressional intent that matters which can be raised in a review proceeding in the Courts of 

Appeals shall not be litigated elsewhere.”). Thus, section 307(b)(1) provides Sierra Club with its 

exclusive remedy to challenge EPA regulations, as illustrated in Maine v. Thomas, 874 F.2d 883 

(1st Cir. 1989).

There, states and environmental groups brought a CAA citizen suit against EPA in 1986, 

alleging that EPA had failed to perform a nondiscretionary duty in regulating visibility in federal 

parks and wilderness areas. Id. at 885–86. However, EPA had promulgated visibility regulations 

in 1980. Id. The First Circuit therefore correctly held that it lacked jurisdiction over the action. 

Id. at 887–89; accord Nat’l Petrochemical & Refiners Ass’n v. EPA, 287 F.3d 1130, 1150 (D.C. 

Cir. 2002).

The same analysis applies here. The current challenge should have been brought in the 

D.C. Circuit in 2004, sixty days after EPA took final action to promulgate the regulations at issue. 

As a result, this Court lacks jurisdiction.

III. THE D.C. CIRCUIT UPHELD THE EPA REGULATIONS AT ISSUE.

Even if Sierra Club’s action was timely, the exact same challenge to the regulations at 

issue had already been made and rejected. In South Coast, the D.C. Circuit upheld nearly all 

aspects of the Phase I rule, and specifically upheld EPA’s authority to revoke the 1-hour ozone 

standard:

EPA retains the authority to revoke the one-hour standard so long as 

adequate anti-backsliding provisions are introduced. Additionally, 

EPA was not, as the Environmental petitioners contend, arbitrary 

and capricious in withdrawing the one-hour requirements, having 

found in 1997 that the eight-hour standard was “generally even 

more effective in limiting 1-hour exposures of concern than is the 

current 1-hour standard.” [62 Fed. Reg. at 38,863] The only

remaining requirements as to the one-hour NAAQS are the antibacksliding limitations.
13

South Coast, 472 F.3d at 899. The only aspects of the Phase I rule vacated were those which 

rendered Section 185 penalty fees (and other specific control measures, described as New Source 

Review, Rate-of-Progress Milestones, Contingency Plans, and Motor Vehicle Emission Budgets) 

inapplicable. Id. at 900–05.4 The court specifically noted that the Phase I rule was “vacated only

to the extent that the court has sustained challenges to it.” 489 F.3d at 1248. Neither of the D.C. 

Circuit’s South Coast opinions provide that the portion of the Phase I rule at issue here (that is, 

section 51.905(e)(2)(i)(A), which eliminates EPA’s obligations to make the findings sought by

Sierra Club in this lawsuit) was vacated. To the contrary, this aspect of the Phase I rule was 

necessarily upheld by the D.C. Circuit.

Subsequent EPA actions also confirm that South Coast upheld the relevant provision of 

EPA’s Phase I rule. In fact, EPA has proposed to revise the Phase I rule to implement aspects of 

the South Coast decision with respect to Section 185 fees by removing certain components of the 

Phase I rule that refer to Section 185 fees, but expressly retaining the provision at issue in this 

case. See 74 Fed. Reg. 2936 (Jan. 16, 2009) (proposing to delete 40 C.F.R. § 51.905(e)(2)(ii) 

(which discusses Section 185 fees) but to retain section 51.905(e)(2)(i)(A) (the provision at issue 

here)).

Further, EPA has proven its ability to enforce Section 185 without making the findings 

sought by Sierra Club. EPA recently initiated a process to require the state of California to 

submit Section 185 fee SIP revisions for several areas or face federal sanctions, but EPA did so 

without making any statutory finding as to whether the areas in question had attained the 1-hour 

ozone NAAQS. See 75 Fed. Reg. 232 (Jan. 5, 2010). 

 

4

 That is, the court held that these programs were “controls” under CAA Section 172(e). This 

holding does not prevent these programs from being replaced by equivalent, not less stringent 

programs.
14

IV. SIERRA CLUB IS PRECLUDED FROM RELITIGATING THE VALIDITY OF 

THE PHASE I REGULATIONS.

Sierra Club’s claims must also be dismissed because Sierra Club previously brought a 

nearly identical challenge to the regulations at issue. As explained above, the D.C. Circuit, in a 

case in which the Sierra Club was a party and had a full and fair opportunity to participate, upheld 

the provisions of the Phase I rule at issue here. Therefore, under either the rubric of claim 

preclusion or issue preclusion, Sierra Club is estopped from bringing this action. See Nader v. 

McAuliffe, 593 F. Supp. 2d. 95, 99–100 (D.D.C. 2009) (“claim preclusion forecloses all that 

which might have been litigated previously, while issue preclusion prevents the relitigation of any 

issue that was raised and decided in a prior action.”); accord Wilson v. Fullwood, Civ. Action No. 

09-2365 (CKK), 2011 WL 1113361, at *13–15 (D.D.C. Mar. 28, 2011) (applying both issue and 

claim preclusion).

V. SIERRA CLUB SEEKS TO IMPOSE A NEW REGULATORY SCHEME 

WITHOUT FOLLOWING NECESSARY ADMINISTRATIVE PROCEDURES.

Sierra Club’s claims should be dismissed for failure to state a claim upon which relief can 

be granted because no set of facts would entitle Sierra Club to relief that contravenes necessary 

administrative procedures. As explained in BCCAAG’s Motion to Intervene, Sierra Club’s 

lawsuit amounts to an end-run around applicable administrative procedures because it seeks to 

force EPA to take action where EPA's validly promulgated regulations provide that EPA is not 

required to take such actions. 

Sierra Club has a remedy if it perceives deficiencies in the EPA regulations at issue, but

that remedy is not a CAA citizen suit. Sierra Club remains free to petition EPA to reconsider any 

aspect of the Phase I rule or to propose and promulgate new regulations that might accomplish 

Sierra Club’s objectives. See Maine, 874 F.2d at 889 (noting that, although a CAA citizen suit 

was unavailable to challenge as insufficient final EPA regulations, the citizen-plaintiffs had as a 
15

remedy the option to petition EPA for administrative action, and then to seek any necessary 

judicial review of such action before the D.C. Circuit under CAA section 307(b)(1)).

In this lawsuit, Sierra Club seeks an order from this Court that would contravene EPA’s 

regulations without use of Sierra Club’s administrative remedy. Such relief would contravene not 

only validly-promulgated regulations, but also applicable administrative procedures. 

Administrative procedures for EPA rulemaking under the CAA are established in the CAA itself 

and the Administrative Procedure Act. Both require notice and an opportunity for public 

comment for rulemaking, with only narrow exceptions. See 42 U.S.C. § 7607(d); 5 U.S.C. § 553. 

Here, Sierra Club seeks a judicial order to compel EPA to take final administrative actions 

(determine whether areas attained the 1-hour ozone NAAQS) even where EPA is not required to 

do so. In effect, the relief sought by Sierra Club would overturn the very EPA rules that Sierra 

Club unsuccessfully challenged before the D.C. Circuit. Thus, the means chosen by the Sierra 

Club to accomplish its objectives would violate applicable administrative procedures, and the 

Court should dismiss Sierra Club's claims for this reason.

CONCLUSION

For the reasons above, BCCAAG’s motion to dismiss Sierra Club's claims should be 

granted.
16

Dated: June 8, 2011

Respectfully submitted,

/s/ Richard P. Sobiecki

Richard P. Sobiecki (D.C. Bar # 500163)

Baker Botts L.L.P.

1299 Pennsylvania Ave., N.W.

Washington, D.C. 20004

(202) 639-7906

rich.sobiecki@bakerbotts.com

Zachary L. Craft

Baker Botts L.L.P.

One Shell Plaza 

910 Louisiana

Houston, Texas 77002

(713) 229-1133

zachary.craft@bakerbotts.com

Attorneys for BCCA Appeal Group