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NATIONAL PARKS CONSERVATION ASSOCIATION, et al., Pl aintiffs, v.
UNITED STATES DEPARTMENT OF INTERIOR and UNITED STA TES DEPARTMENT OF AGRICULTURE, Defendants.

Civil Action No. 11-130 (GK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CO LUMBIA

794 F. Supp. 2d 39 ; 2011 U.S. Dist. LEXIS 70170 ; 74 ERC (BNA) 1015

June 30, 2011, Decided

COUNSEL: [**1] For NATIONAL PARKS CONSERVATION ASSOCIATION, A non-profit corporation headquartered in Washington D.C., WILDEARTH GUARDIANS, A non-profit corporation headquartered in Santa Fe, NM, GRAND CANYON TRUST, A non-profit corporation headquartered in Flagstaff, Arizona, NORTHWEST ENVIRONMENTAL DEFENSE CENTER, A non-profit corporation headquartered in Portland, Oregon, SAN JUAN CITIZENS ALLIANCE, A non-profit corporation headquartered in Durango, Colorado, CENTER FOR BIOLOGICAL DIVERSITY, A non-profit corporation headquartered in Tucson, A rizona, WASHINGTON WILDLIFE FEDERATION, A non-profit corporation headquartered in Bellevue,Washington, TO'NIZHONI ANI, A non-profit corporation headquartered in San Francisco, California, DO ODA DESERT ROCK, SIERRA CLUB, A non-profit corporation headquartered in San Francisco, Califor nia, Plaintiffs: Reed Zars, PRO HAC VICE, REED ZARS ATTORNEY AT LAW, Laramie, WY; William LisleMiller, WILLIAM MILLER GROUP, PLLC, Washington, DC.

For UNITED STATES DEPARTMENT OF THE INTERIOR, UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant: Eileen T. McDonough, LEAD ATTORNEY, U.S. DOJ - ENVIRONMENTAL DEFENSE SECTION, Washington, DC.

For SALT RIVER PROJECT AGRICULTURE IMPROVEMENT [**2] AND POWER DISTRICT,ARIZONA PUBLIC SERVICE COMPANY, CENTRAL ARIZONA WATER CONSERVATION DISTRICT, Intervenor Defendants: Henry V. Nickel, LEAD ATTORNEY, HUNTON & WILLIAMS, Washington, DC; Aaron M. Flynn, HUNTON & WILLIAMS, LLP, Washington, DC; Norman William Fichthorn, HUNTON & WILLIAMS LLP, Washington, DC.

JUDGES: Gladys Kessler, United States District Judge.

OPINION BY: Gladys Kessler

OPINION

[*40] MEMORANDUM OPINION

Plaintiffs, ten non-profit environmental and conser

vation organizations (together, "NPCA"), 1 bring this suit against Defendants, the United States Department of the Interior ("DOI") and United States Department of Ag riculture ("USDA," collectively the "Departments"), f or declaratory and injunctive relief, pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 706(1) and 555(b)

. NPCA seeks a declaratory judgment that Defendants have unreasonably delayed responding to its petitio ns [*41] for formal certification of reasonably attributab le visibility impairments in various national parks an d wilderness areas. Plaintiffs also seek an order requir ing the Departments to act on the petitions within 30 days. The Arizona Public Service Company, Central Arizona Wat er Conservation District, and Salt River Project Agric ultural [**3] Improvement Power District have intervened on
behalf of Defendants. The matter is now before the Court on Defendants' Motion to Dismiss [Dkt. No. 12]. Upo n consideration of the Motion, Opposition, and Replie s, and the entire record herein, and for the reasons s tated below, Defendants' Motion to Dismiss is granted

.Page 2 794 F. Supp. 2d 39, *; 2011 U.S. Dist. LEXIS 70170, **;

74 ERC (BNA) 1015

1 Plaintiffs are National Parks ConservationAssociation, WildEarth Guardians, Grand Canyon Trust, Northwest Environmental Defense Center, San Juan Citizens Alliance, Center forBiological Diversity, Washington Wildlife Federation, To' Nizhoni Ani, Dooda Desert Rock,
and Sierra Club.

I. BACKGROUND

A. Statutory Framework

The Clean Air Act ("CAA"), 42 U.S.C. §§ 7401-7671q (2011) , is the principal federal statute designed to "protect and enhance the quality of the N ation's
air resources." Id. § 7401(b)(1) . Section 169A addresses visibility impairment in certain national parks and wilderness areas, which are designated as "mandatory c lass I
Federal areas." 2 Id. § 7491(a)(1) . Section 169A of the CAA establishes a "national goal" of preventing and remedying visibility impairment in Class I areas resu lting from manmade air pollution. 3 Id.

2 "Class I" areas include all international parks

, [**4] national wilderness areas which exceed 5,000 acres in size, national memorial parks which exceed 5,000 acres in size, and national parks which exceed 6,000 acres in size, which were in existence on August 7, 1977. See 42 U.S.C. § 7472(a) . The term "mandatory class I
Federal areas" is defined as "Federal areas which may not be designated as other than class I." Id. § 7491(g)(5)

. 3 Although the CAA distinguishes between "mandatory class I areas" and "class I areas," this distinction is not relevant for the purposes of thi s Memorandum Opinion. Therefore, the Court will simply refer to "Class I areas."

Section 169A charges the Environmental Protection Agency ("EPA") with the responsibility to issue reg ulations to assure reasonable progress toward the CAA' s national visibility goals. Id. § 7491(a)(4) . In order to meet these goals, Section 169A instructs EPA, in co nsultation with the Secretary of the Interior, to re quire those States it identifies as containing Class I ar eas "where visibility is an important value," as well a s States from which emissions "may reasonably be anticipated to cause or contribute to impairment of visibility" in Class I areas, to submit State implementation plans [**5] ("SIPs") for safeguarding visibility in protected C lass I
areas. Id. §§ 7491(a)(2)

, (b)(2)

.EPA must require these SIPs to include "such emission limits, schedules of compliance and other meas ures as may be necessary to make reasonable progress." I d. § 7491(b)(2) . In particular, these SIPs must require the installation and operation of the "best available r etrofit technology" ("BART") 4 at certain major stationary sources placed in operation between 1962 and 1977. Id. § 7491(b)(2)(A) . The BART provisions apply to specific types of [*42] stationary sources that emit more than 250 tons per year of any pollutant. Id. § 7491(g)(7)

.

4 BART means:

an emission limitation based on the degree of reduction achievable through the application of the best system of continuous emission reduction for each pollutant which is emitted by an existing stationary facility. The emission limitation must be established, on a case-by-case basis, taking into consideration the technology available, the costs of compliance,the energy and nonair quality environmental impacts of compliance, any pollution control equipment in use or in existence at the source, the remaining useful life of the source, and the degree of improvement [**6] in visibility which may reasonably be anticipated to result from the use of such technology.

40 C.F.R. § 51.301

. The same CAA implementation requirements apply
to Indian reservations. 5 An Indian tribe, like a State, may submit a tribal implementation plan ("TIP"). Id. § 7410(o) . In instances where the tribe does not assume this responsibility, EPA must promulgate a federal implementation plan ("FIP") applicable to the reserva tion. 40 C.F.R. § 49.11

.

5 Two of the facilities identified in NCPA's petitions, the Navajo Generating Station and the Four Corners Power Plant, are located on Navajo
tribal land.

In addition to EPA and the States, Federal Land Managers ("FMLs"), 6 such as the Departments in the present case, play a role in this process. In parti cular, the appropriate FMLs must be consulted regarding any SI P revision intended to meet the requirements of secti on 169A. 42 U.S.C. § 7491(d)

.

6 Federal Land Manager "means, with respect to any lands in the United States, the Secretary ofPage 3 794 F. Supp. 2d 39, *; 2011 U.S. Dist. LEXIS 70170, **;

74 ERC (BNA) 1015

the department with authority over such lands." 42 U.S.C. § 7602(i)

.

B. Implementing Regulations

In 1980, EPA issued regulations addressing "reasonably attributable visibility impairment," meanin g "visibility [**7] impairment that is caused by the emission of air pollutants from one, or a small number of so urces." 40 C.F.R. § 51.301 . In relevant part, these visibility impairment regulations state that "[t]he affected Fed eral Land Manager may certify to the State, at any time, that there exists reasonably attributable impairment of visibility in any mandatory Class I Federal area." Id. § 51.302(c)(1) . If such a certification is issued more than
six months before a SIP or a SIP revision is schedu led to be submitted for EPA approval, the subsequent SIP m ustinclude appropriate BART determinations and compliance schedules for each of the offending station ary facilities. See id. § 51.302(c)(2)(iii)

. In 1999, EPA issued additional regulations to carry out its statutory mandate under Section 169A. These include the "regional haze program requirements," i d. §
51.308 , which are far broader in scope than the visibilit y impairment regulations contained in Section 51.302

. They apply to all "BART-eligible sources" within th e State. Id. § 51.308(e) . A BART-eligible source is defined as any of a number of specified types of stationary facilities first placed into operation between August 7, 1962 and August 7, [**8] 1977, with the potential to emit 250 tons per year or more of any pollutant. Id. § 51.301

. In most relevant part, each State must submit a SIP :

containing emission limitations representing BART and schedules for compliance with BART for eachBART-eligible source that may reasonably be anticipated to cause or contribute toany impairment of visibility in any mandatory Class I Federal area, unless the
State demonstrates that an emissions trading program or other alternative willachieve greater reasonable progress toward natural visibility conditions.

Id. § 51.308(e) . Under EPA's regional haze regulations, "[a] single source that is responsible for a 1.0 de ciview change or more should be considered to 'cause' visi bility impairment" 7 and the threshold for "determining whether a source 'contributes' to visibility impairment sho uld not
be [*43] higher than 0.5 deciviews." Id. pt. 51, App. Y (2005). 7 A deciview is a "haze index" calculated"such that uniform changes in haziness correspond to uniform incremental changes in perception across the entire range of conditions, from pristine to highly impaired." 40 C.F.R. § 51.301

.

C. Factual and Procedural Background 8

8 For purposes of ruling on a motion [**9] to dismiss, the factual allegations of the complaintmust be presumed to be true and liberally construed in favor of the plaintiff. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15, 381 U.S. App. D.C. 76 (D.C. Cir. 2008) ; Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253, 196 U.S. App. D.C. 344 (D.C. Cir. 1979)

. Therefore, unless otherwise noted, the facts set forth herein are taken from the Complaint.

Plaintiffs bring this case based on three administr ative petitions they submitted to the Defendants, wh o are the FMLs for the lands relevant to Plaintiffs' peti tions. The first petition, dated May 5, 2009, requested th at DOI issue a certification that the visibility in Class I areas within its jurisdiction is impaired and that the im pairment is reasonably attributable to emissions from t he Navajo Generating Station in Arizona. 9 The second petition, dated June 24, 2009, requested a similar cert ification from DOI with respect to emissions from the Ce ntralia Power Plant ("Centralia") in Washington Stat e. 10 The third petition, dated February 16, 2010, was se nt to both Departments and requested that each Department issue certifications with respect to emissions from the Four Corners Power Plant ("Four Corners") [**10] in
New Mexico. 11 If issued, these certifications would trigger the requirement that subsequent SIPs include BA RT determinations and compliance schedules for the pow er plants in question. See 40 C.F.R. § 51.302(c)(2)(iii)

.

9 National Parks Conservation Association,Sierra Club, Grand Canyon Trust, San Juan Citizens Alliance, To' Nizhoni Ani, and Diné CARE filed this petition. 10 National Parks Conservation Association, Washington Wildlife Federation, Sierra Club, and
Northwest Environmental Defense Center filed this petition. 11 National Parks Conservation Association,Earthjustice, Sierra Club, San Juan Citizens Alliance, Grand Canyon Trust, Center for Biological Diversity, Diné Care, Dooda Desert Rock, and Wild Earth Guardians filed this petition.

On January 20, 2011, in the absence of a response from Defendants regarding their petitions, Plaintif fs filed this Complaint [Dkt. No. 1], alleging that Defendan tsPage 4 794 F. Supp. 2d 39, *; 2011 U.S. Dist. LEXIS 70170, **;

74 ERC (BNA) 1015

unreasonably delayed acting on their petitions and seeking an order requiring Defendants to respond to the m.

On March 8, 2011, DOI sent a letter in response to Plaintiffs' petitions. Defs.' Mot. Ex. 4. The lette r noted that all the petitioned sources have already been d etermined by the [**11] State or EPA to cause or contribute to visibility impairment, and therefore are su bject to BART determinations under the regional haze rule. T he letter also outlined the actions being taken with r egard to each petitioned source. With regard to the first pe tition, the letter explained that although EPA's "BART dete rmination for Navajo Generating Station has been delayed," EPA is working on the development of a proposed rule to determine BART for the Navajo Generat

ing Station. Id. Ex. 4, at 1. With regard to the se cond petition, Defendants indicated that the State of Wa shington has already proposed regional haze SIPs and BAR T determinations for Centralia. With regard to the th ird petition, the letter stated that EPA has already pr oposed a
FIP that would establish BART for Four Corners.

The letter further stated that, in light of these p roceedings, DOI would "address BART through the exist

ing regional haze BART determinations prior to taki ng any additional action." Id. The letter explained th at DOI reserved the right to certify reasonably attributab le visibility [*44] impairment if it found that the proposed BART determinations did not adequately mitigate the source's visibility impact and such [**12] certification would enhance the potential for mitigation. It conc luded: "Until such time, however, this letter fully and fi nally responds to all of the referenced petitions." Id. E x. 4, at

2.

On March 17, 2011, USDA also sent a letter to
Plaintiffs. Id. Ex. 5. The letter stated that the N ational Forest Service is actively participating in EPA's d evelopment of an FIP to address BART at the Four Corner s Plant. Therefore, USDA "is deferring action on the petition until EPA makes its final BART determination." Id. Ex. 5, at 1.

Defendants filed their Motion to Dismiss, pursuant

to Fed. R. Civ. P. 12(b)(1) , on April 6, 2011. Plaintiffs filed their Opposition [Dkt. No. 19] on May 4, 2011

. Finally, both Defendants and Intervenors filed thei r Replies [Dkt. Nos. 24 and 25] on May 20, 2011.

II. STANDARD OF REVIEW

Under Rule 12(b)(1) , Plaintiffs bear the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction. See Shuler v. U.S., 531 F.3d 930, 932, 382 U.S. App. D.C. 201 (D.C. Cir

. 2008) . In reviewing a motion to dismiss for lack of subject matter jurisdiction, the Court must accept as true all of the factual allegations set forth in the Complai nt; however, such allegations "will [**13] bear closer scrutiny in resolving a 12(b)(1) motion than in resolvi ng a 12(b)(6) motion for failure to state a claim." Wilbur v. CIA, 273 F. Supp. 2d 119, 122 (D.D.C. 2003) (citations and quotations omitted). The Court may consider mat ters outside the pleadings. See Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197, 297 U.S. App. D.C. 406 (D.C. Cir. 1992) . The Court may also rest its decision on its own resolution of disputed facts. Id.

III. ANALYSIS

In this lawsuit, Plaintiffs seek "an order finding that [D]efendants . . . have failed to act without unrea sonable delay on three of [P]laintiffs' petitions" and "est ablishing a prompt deadline for DOI and DOA to act" on them. Compl. ¶ 1. Defendants argue that the "Departments' Responses fully answered NPCA's request by explaini ng that, at the present time, the Departments would no t exercise their authority." Defs.' Mot. 9. Therefore, according to Defendants, "NPCA's claim is moot" and must be dismissed pursuant to Rule 12(b)(1) . Id. Plaintiffs respond that they "have not obtained a definitive dec ision on their petitions and therefore have not obtained everything they can recover as a matter of law." Pls.' O pp'n 8. Hence, the question presented here is simply [**14] whether Defendants' letter responses of March 8 and March 17, 2011, have discharged their duty to respo nd to Plaintiffs' petitions.

The APA grants "an interested person the right to petition for the issuance, amendment, or repeal of a rule." 5 U.S.C. § 553(e) . Agencies must "conclude a matter presented to it," including a petition for issuance of a rule, "within a reasonable time." Id. at § 555(b) ; In re Am. Rivers and Idaho Rivers United, 372 F.3d 413, 4 18, 362 U.S. App. D.C. 46 (D.C. Cir. 2004) . Therefore, an agency "is required to at least definitively respon d to . . . [a] petition--that is, to either deny or grant the petition." Families for Freedom v. Napolitano, 628 F. Supp. 2d 535, 540 (S.D.N.Y. 2009)

.If the agency does not respond to a petition, a reviewing court may "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1) ; In re Am. Rivers and Idaho Rivers United, 372 F.3d at 418

. If, on the other hand, an agency does respond to a petition, even after a suit to compel a response is fil ed, such
a suit is rendered moot. Natural Res. Def. Council v. Nuclear Regulatory [*45] Comm'n, 680 F.2d 810, 814, 220 U.S. App. D.C. 261 (D.C. Cir. 1982) ("Corrective action by an agency is one type of subsequent development [**15] that can moot a previously justiciable issue."); Sierra Club, et al. v. Browner, et al., 130 F. Supp. 2d 78, 82 (D.D.C. 2001) ("Because the Court is unable to grant any relief beyond requiring steps t hat EPA has already taken, [the claim] is moot.").Page 5 794 F. Supp. 2d 39, *; 2011 U.S. Dist. LEXIS 70170, **;

74 ERC (BNA) 1015

Plaintiffs argue that Defendants' responses do not render this case moot because the responses do not provide a "definitive decision" and are not "final." P ls.' Opp'n 8-9. An agency action will be considered fina l when two conditions are met: first, "the action mus t mark the consummation of the agency's decisionmaking process;" and, second, "the action must be one by w hich rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 177-178, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997) (internal quotations omitted). Specifically, "an agency's denial of a petition to initiate a rul emaking . . . is a final agency action." Fox Television Stations, Inc. v. Fed. Commc'ns Com'n, 280 F.3d 1027, 1037, 350 U. S. App. D.C. 79 (D.C. Cir. 2002)

. It is clear from the face of the response letters i n this
case that Defendants have reached a "definitive dec ision" to deny Plaintiffs' petitions. The Department of In terior's response letter explained that "we [**16] believe it is consistent with our affirmative responsibility to p rotect air quality related values to address BART through the existing regional haze BART determinations prior to taking any additional action," and that "this lette r fully and finally responds to all of the referenced petit ions." Defs.' Mot. Ex. 4, at 1-2. Hence, DOI declined to i nitiate the rulemaking sought by Plaintiffs in deference to the ongoing efforts of EPA and the States of Washington and Colorado. Id. Ex. 4, at 1. Similarly, the letter re sponse from the Department of Agriculture stated that "the EPA is preparing the Federal Implementation Plan for Re

gional Haze that must address Best Available Retrof it Technology" for the Four Corners Power Plant and, b ecause the "EPA has not yet made a final decision re garding BART for the Four Corners Power Plant, USDA is deferring action on the petition until the EPA make s its final BART determination." Id. Ex. 5, at 1. In shor t, EPA said "no" to Plaintiffs' requests.

Plaintiffs make much of the fact that the DOI lette r noted that "[a]t such time as we determine that the impacts are not adequately mitigated [by the BART det erminations in progress] and that certifying reasonab ly [**17] attributable visibility impairment would enhance the potential for mitigation, we have the right to certify at that time" and that the USDA letter "defer[red] act ion on the petition until the EPA makes its final BART det ermination." Id. Ex. 4, at 2-3, Ex. 5, at 1. In essen ce, Plaintiffs contend that because Defendants may certify r easonably attributable visibility impairments in the parks in question at some future time, but are declining to do so now, Defendants have not fully responded to the pet itions. Pls.' Opp'n 9-10.

However, Plaintiffs point to no authority for the proposition that a denial of their petitions may on ly be considered final if Defendants foreclose taking the course of action proposed by Plaintiffs in the futu re. 12 Plaintiffs have pointed to two cases, neither of wh ich support their argument. In the first case, it was " undisputed that . . . [the agency had] neither denied no r granted plaintiffs' petition." Families for Freedom, 628 F. Supp. 2d at [*46] 540 (emphasis added). By contrast, in this case, the Department of Interior and Department of Agriculture "have made perfectly plain that, at this time, they will not issue the certification s sought by NPCA." Defs.' Reply [**18] 2. In the second case cited by Plaintiffs, the agency refused "to give [p etitioners] any answer for more than six years." In re Am. Rivers and Idaho Rivers United, 372 F.3d at 419 (emphasis in original). A rule forbidding Defendants from exp ressing their openness to reassessing their position in the future would only result in less flexible rulemakin g and restrict the discretion placed in the hands of the FMLs. 40 C.F.R. § 51.302(c)(1) (FMLs "may certify to the State, at any time, that there exists reasonably at tributable impairment of visibility in any mandatory Class I Federal area.").

12 It is perfectly understandable why, after adelay of nearly twenty-one months from the submission of their first petition, Plaintiffs filed t his suit to compel a response. What is less clear is why Plaintiffs did not dismiss their Complaint after Defendants issued their letter responses, and bring a new action under the APA, challenging the denial of the petitions as "arbitrary and capri

cious, an abuse of discretion, or otherwise not in
accordance with law." 5 U.S.C. § 706(2)(A)

. Although it is true that Defendants left open the p ossibility that they may initiate the type of rulemak ing
Plaintiffs want [**19] in the future, they have also made clear that they are denying Plaintiffs' petiti ons at this time. The Court can no longer grant any relief beyond that already provided by Defendants' respons es; Plaintiffs' claims are moot and therefore must be d ismissed under Rule 12(b)(1)

. Natural Res. Def. Council,
680 F.2d at 814 (the court "can hardly order the [agency] . . . to do something that it has already done."); Sierra Club, 130 F. Supp. 2d at 82

.

IV. CONCLUSION

For the reasons set forth above, the Defendants' Mo

tion to Dismiss is granted

. An Order will issue with this opinion.

/s/

Gladys Kessler

United States District Judge

June 30, 2011