Page 1 

31 of 59 DOCUMENTS 

NATIONAL PARKS CONSERVATION ASSOCIATION, et al., Plaintiffs, v. 

UNITED STATES DEPARTMENT OF INTERIOR and UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants. 

Civil Action No. 11-130 (GK) 

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 

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, Arizona, WASHINGTON WILDLIFE FEDERATION, A 

non-profit corporation headquartered in Bellevue, 

Washington, TO'NIZHONI ANI, A non-profit corporation headquartered in San Francisco, California, DOODA DESERT ROCK, SIERRA CLUB, A non-profit 

corporation headquartered in San Francisco, California, 

Plaintiffs: Reed Zars, PRO HAC VICE, REED ZARS 

ATTORNEY AT LAW, Laramie, WY; William Lisle 

Miller, 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 conservation organizations (together, "NPCA"), 1

 bring this suit 

against Defendants, the United States Department of the 

Interior ("DOI") and United States Department of Agriculture ("USDA," collectively the "Departments"), for 

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 petitions 

[*41] for formal certification of reasonably attributable 

visibility impairments in various national parks and wilderness areas. Plaintiffs also seek an order requiring the 

Departments to act on the petitions within 30 days. The 

Arizona Public Service Company, Central Arizona Water 

Conservation District, and Salt River Project Agricultural 

[**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]. Upon 

consideration of the Motion, Opposition, and Replies, 

and the entire record herein, and for the reasons stated 

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 Conservation 

Association, WildEarth Guardians, Grand Canyon Trust, Northwest Environmental Defense 

Center, San Juan Citizens Alliance, Center for 

Biological 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 Nation's 

air resources." Id. § 7401(b)(1). Section 169A addresses 

visibility impairment in certain national parks and wilderness areas, which are designated as "mandatory class 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 resulting 

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 this 

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 regulations 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 consultation with the Secretary of the Interior, to require 

those States it identifies as containing Class I areas 

"where visibility is an important value," as well as 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 Class I 

areas. Id. §§ 7491(a)(2), (b)(2). 

EPA must require these SIPs to include "such emission limits, schedules of compliance and other measures 

as may be necessary to make reasonable progress." Id. § 

7491(b)(2). In particular, these SIPs must require the 

installation and operation of the "best available retrofit 

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 reservation. 

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 particular, the 

appropriate FMLs must be consulted regarding any SIP 

revision intended to meet the requirements of section 

169A. 42 U.S.C. § 7491(d). 

6 Federal Land Manager "means, with respect 

to any lands in the United States, the Secretary of
Page 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," meaning "visibility [**7] impairment that is caused by the emission 

of air pollutants from one, or a small number of sources." 

40 C.F.R. § 51.301. In relevant part, these visibility impairment regulations state that "[t]he affected Federal 

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 scheduled to 

be submitted for EPA approval, the subsequent SIP must 

include appropriate BART determinations and compliance schedules for each of the offending stationary 

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," id. § 

51.308, which are far broader in scope than the visibility 

impairment regulations contained in Section 51.302. 

They apply to all "BART-eligible sources" within the 

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 each 

BART-eligible source that may reasonably be anticipated to cause or contribute to 

any impairment of visibility in any mandatory Class I Federal area, unless the 

State demonstrates that an emissions 

trading program or other alternative will 

achieve 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 deciview 

change or more should be considered to 'cause' visibility 

impairment" 7

 and the threshold for "determining whether 

a source 'contributes' to visibility impairment should 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 Background8

 

8 For purposes of ruling on a motion [**9] to 

dismiss, the factual allegations of the complaint 

must 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 administrative petitions they submitted to the Defendants, who are 

the FMLs for the lands relevant to Plaintiffs' petitions. 

The first petition, dated May 5, 2009, requested that DOI 

issue a certification that the visibility in Class I areas 

within its jurisdiction is impaired and that the impairment is reasonably attributable to emissions from the 

Navajo Generating Station in Arizona. 9

 The second petition, dated June 24, 2009, requested a similar certification from DOI with respect to emissions from the Centralia Power Plant ("Centralia") in Washington State. 10

The third petition, dated February 16, 2010, was sent 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 BART 

determinations and compliance schedules for the power 

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, Plaintiffs filed 

this Complaint [Dkt. No. 1], alleging that Defendants 
Page 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 them. 

On March 8, 2011, DOI sent a letter in response to 

Plaintiffs' petitions. Defs.' Mot. Ex. 4. The letter noted 

that all the petitioned sources have already been determined by the [**11] State or EPA to cause or contribute to visibility impairment, and therefore are subject to 

BART determinations under the regional haze rule. The 

letter also outlined the actions being taken with regard to 

each petitioned source. With regard to the first petition, 

the letter explained that although EPA's "BART determination for Navajo Generating Station has been delayed," EPA is working on the development of a proposed rule to determine BART for the Navajo Generating Station. Id. Ex. 4, at 1. With regard to the second 

petition, Defendants indicated that the State of Washington has already proposed regional haze SIPs and BART 

determinations for Centralia. With regard to the third 

petition, the letter stated that EPA has already proposed a 

FIP that would establish BART for Four Corners. 

The letter further stated that, in light of these proceedings, DOI would "address BART through the existing regional haze BART determinations prior to taking 

any additional action." Id. The letter explained that DOI 

reserved the right to certify reasonably attributable 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 concluded: 

"Until such time, however, this letter fully and finally 

responds to all of the referenced petitions." Id. Ex. 4, at 

2. 

On March 17, 2011, USDA also sent a letter to 

Plaintiffs. Id. Ex. 5. The letter stated that the National 

Forest Service is actively participating in EPA's development of an FIP to address BART at the Four Corners 

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 their 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 Complaint; 

however, such allegations "will [**13] bear closer scrutiny in resolving a 12(b)(1) motion than in resolving 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 matters 

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 unreasonable 

delay on three of [P]laintiffs' petitions" and "establishing 

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 explaining 

that, at the present time, the Departments would not 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 decision 

on their petitions and therefore have not obtained everything they can recover as a matter of law." Pls.' Opp'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 respond 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, 418, 

362 U.S. App. D.C. 46 (D.C. Cir. 2004). Therefore, an 

agency "is required to at least definitively respond 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 filed, 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 that 

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." Pls.' 

Opp'n 8-9. An agency action will be considered final 

when two conditions are met: first, "the action must mark 

the consummation of the agency's decisionmaking 

process;" and, second, "the action must be one by which 

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 rulemaking . 

. . 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 in this 

case that Defendants have reached a "definitive decision" 

to deny Plaintiffs' petitions. The Department of Interior's 

response letter explained that "we [**16] believe it is 

consistent with our affirmative responsibility to protect 

air quality related values to address BART through the 

existing regional haze BART determinations prior to

taking any additional action," and that "this letter fully 

and finally responds to all of the referenced petitions." 

Defs.' Mot. Ex. 4, at 1-2. Hence, DOI declined to initiate 

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 response 

from the Department of Agriculture stated that "the EPA 

is preparing the Federal Implementation Plan for Regional Haze that must address Best Available Retrofit 

Technology" for the Four Corners Power Plant and, because the "EPA has not yet made a final decision regarding BART for the Four Corners Power Plant, USDA is 

deferring action on the petition until the EPA makes its 

final BART determination." Id. Ex. 5, at 1. In short, EPA 

said "no" to Plaintiffs' requests. 

Plaintiffs make much of the fact that the DOI letter 

noted that "[a]t such time as we determine that the impacts are not adequately mitigated [by the BART determinations in progress] and that certifying reasonably 

[**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] action on 

the petition until the EPA makes its final BART determination." Id. Ex. 4, at 2-3, Ex. 5, at 1. In essence, Plaintiffs contend that because Defendants may certify reasonably 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 petitions. Pls.' Opp'n 9-10. 

However, Plaintiffs point to no authority for the 

proposition that a denial of their petitions may only be 

considered final if Defendants foreclose taking the

course of action proposed by Plaintiffs in the future. 12

Plaintiffs have pointed to two cases, neither of which 

support their argument. In the first case, it was "undisputed that . . . [the agency had] neither denied nor 

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 certifications sought 

by NPCA." Defs.' Reply [**18] 2. In the second case 

cited by Plaintiffs, the agency refused "to give [petitioners] 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 expressing their openness to reassessing their position in the 

future would only result in less flexible rulemaking 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 attributable impairment of visibility in any mandatory Class I 

Federal area."). 

12 It is perfectly understandable why, after a 

delay of nearly twenty-one months from the submission of their first petition, Plaintiffs filed this 

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 capricious, 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 possibility that they may initiate the type of rulemaking 

Plaintiffs want [**19] in the future, they have also 

made clear that they are denying Plaintiffs' petitions at 

this time. The Court can no longer grant any relief

beyond that already provided by Defendants' responses; 

Plaintiffs' claims are moot and therefore must be dismissed 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' Motion to Dismiss is granted. 

An Order will issue with this opinion. 

/s/ 

Gladys Kessler 

United States District Judge 

June 30, 2011