Sierra Club v. Whitman

Nos. 01-5123 & 01-5299

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

285 F.3d 63; 350 U.S. App. D.C. 411; 2002 U.S. App. LEXIS

6215; 54 ERC (BNA) 1149; 32 ELR 20586

February 20, 2002, Argued

April 5, 2002, Decided

DISPOSITION: Affirmed.

[*65] RANDOLPH, Circuit Judge: The

complicated procedural history of

these consolidated appeals from the

district court masks the simplicity of

the three issues presented. In light

of the complexities, a summary of

these issues would serve no useful

purpose at this point. We will begin

instead with an abbreviated account of

how the cases reached this court.

I.

More than a decade ago, the

Environmental Protection Agency

designated St. Louis, Missouri a

"nonattainment" area of "moderate"

classification for ozone. See 56 Fed.

Reg. 56,694, 56,751, 56,788 (Nov. 6,

1991) (codified at 40 C.F.R. 81.314,

81.326).§§ As a consequence of EPA's

designation, Missouri and Illinois had

to revise their state implementation

plans to attain the primary standard

for ozone, 42 U.S.C. § 7511a(a); the

time for attainment became November

15, 1996, see 42 U.S.C. § 7511(a)(1)

tbl.1; and EPA had to determine,

within six months of the attainment

date (by about May 15, 1997), whether

St. Louis had reached the primary

standard. See 42 U.S.C. §

7511(b)(2)(A). If St. Louis were not

in attainment, the Clean Air Act

directed EPA to reclassify the

area--to the "serious" level, or a

higher level applicable to the area's

"design value" (as calculated by EPA

using readings from the area)--and to

publish a notice of nonattainment in

the Federal Register within the same

six month window. See id. §

7511(b)(2)(A)(i)-(ii) & (B).

The higher an area's nonattainment

classification, the more stringent and

numerous are the requirements placed

upon the States to take action to

improve the region's air quality. See

generally 42 U.S.C. § 7511a. If, for

instance, St. Louis's classification

were at the "serious" level, Illinois

and Missouri would have to implement

an "enhanced" vehicle inspection and

maintenance program to reduce

hydrocarbon and nitrogen oxide

emissions from motor vehicles. See 42

U.S.C. § 7511a(c)(3).

In November 1998, after giving EPA

notice, the Sierra Club filed a

complaint, invoking the Act's

citizen-suit provision. 42 U.S.C. §

7604(a)(2). The complaint alleged that

EPA had not performed its

nondiscretionary duty to publish a

timely notice of nonattainment in the

Federal Register and a notice of the

reclassification of St. Louis's ozone

status. The argument was in the

alternative: either EPA had made a

determination of nonattainment and

failed to publish it, or EPA had not

made a determination although the Act

required it to do so. EPA admitted

that it had not made the required

determination. After permitting the

States of Missouri and Illinois and

Page 1
several associations to intervene as

defendants, the court ordered EPA to

make a determination of St. Louis's

ozone air quality attainment status by

March 12, 2001, and to publish any

required notices in the Federal

Register by March 20, 2001. Sierra

Club v. Browner, 130 F. Supp. 2d 78,

95 (D.D.C. 2001) (amended by order on

Feb. 14, 2001). The court refused to

order EPA to make its determination

retroactive, as the Sierra Club had

urged, and it rejected the argument

that the EPA had already made the

attainment determination, as the

Sierra Club also argued. See id. at

90-94.

On March 19, 2001, EPA published a

notice of its determination that the

St. Louis area had failed to attain

the primary ozone standard by November

15, 1996, and that reclassification by

operation of law to the "serious"

category would occur on the effective

date of the rule, May 18, 2001. See 66

Fed. Reg. 15,578. On the same day, EPA

proposed another rule that would delay

the effective date of the March 19

determination until June 29, [*66]

2001. See 66 Fed. Reg. 15,591. Shortly

thereafter, EPA issued a notice of

proposed rulemaking to extend the

attainment date until November 15,

2004, and to withdraw the March 19,

2001, reclassification and

nonattainment determinations. See 66

Fed. Reg. 17,647 (Apr. 3, 2001). The

Sierra Club petitioned this court for

a writ of prohibition on the proposed

rules, which we denied. See In re

Sierra Club, 2001 U.S. App. LEXIS

18045, No. 01-1141, 2001 WL 799956, at

*1 (D.C. Cir. June 8, 2001). After EPA

finalized these proposed rules, see 66

Fed. Reg. 27,036 (May 16, 2001) & 66

Fed. Reg. 33,996 (June 26, 2001), the

Sierra Club petitioned for judicial

review in the Seventh Circuit of the

two rulemakings; its petitions are

still pending. The Sierra Club also

filed a motion in the district court

to enforce the court's judgment,

claiming that EPA's rulemakings

regarding St. Louis's attainment

status and its time limits violated

the order. The district court denied

the motion. We consolidated the Sierra

Club's appeal from the denial of its

motion with its appeal from the

district court's original order.

II.

The Sierra Club's first argument is

that before this lawsuit began EPA had

already taken final agency action by

determining that St. Louis had failed

to attain the required ozone standard.

As evidence, it cites several

documents, including most prominently

a March 1998 letter from the EPA

Administrator to the Governor of

Missouri discussing St. Louis's air

quality. The relevant portion of the

letter is as follows:

In recent years, Missouri

has employed a variety of

stationary source and fuel

regulations which have

resulted in improved air

quality for the St. Louis

area. While this progress is

positive, it has not been

sufficient to solve the air

quality problem in the area.

As you know, we have been

considering whether to

reclassify the St. Louis

area's nonattainment status

from moderate to serious.

Recent air quality

improvements and Missouri's

commitments to implement an

enhanced vehicle emissions

inspection program, and opt

into the Federal

reformulated gasoline (RFG)

program, are among the

factors being considered.

While the Sierra Club thinks this

excerpt reflects EPA's final

determination that St. Louis was not

in attainment for ozone, the last two

sentences indicate otherwise. Besides,

EPA has maintained throughout this

litigation that it makes nonattainment

Page 2

285 F.3d 63, *65; 350 U.S. App. D.C. 411;

2002 U.S. App. LEXIS 6215; 54 ERC (BNA) 1149
determinations and reclassifications

simultaneously and only through

rulemaking. The Sierra Club counters

that under the Clean Air Act and the

Administrative Procedure Act the

agency must proceed by adjudication

rather than rulemaking, despite the

fact that the Clean Air Act requires

EPA determinations to be published in

the Federal Register. 42 U.S.C. §

7511(b)(2)(B). This misses the point.

No matter what the Sierra Club thinks

the Clean Air Act or the APA required

of EPA, the fact remains that "EPA's

established practice for making a

final decision concerning

nonattainment and reclassification is

to conduct a rulemaking under the APA,

not to issue a letter, a list, or some

other informal document." Brief of

Appellee at 28; see, e.g., 63 Fed.

Reg. 8128 (Feb. 18, 1998) (Dallas-Fort

Worth nonattainment determination); 62

Fed. Reg. 65,025 (Dec. 10, 1997)

(Santa Barbara); 62 Fed. Reg. 60,001

(Nov. 6, 1997) (Phoenix). In other

words, if there has not been a

rulemaking there has not been an

attainment determination. More than

that, if the Sierra Club were right

that in this case EPA took the

alternative route of adjudication, see

NLRB v. Bell Aerospace Co., 416 U.S.

267, 294, 40 L. Ed. 2d 134, 94 S. Ct.

1757 (1974); Public Util. Dist. No.

[*67] 1 v. FERC, 272 F.3d 607, 620

(D.C. Cir. 2001) (per curiam), there

is no explaining the absence of

anything to indicate that such an

adjudication occurred, or when. Still

further, to credit the Sierra Club's

argument would require us to assume

that the adjudication took place in

secret, without notice to the States

of Missouri and Illinois, and without

their participation, perhaps in

violation of the Due Process Clause of

the Constitution, see generally Henry

J. Friendly, Some Kind of Hearing, 123

U. PA. L. REV. 1267 (1975), and that

EPA then kept the determination in its

pocket and deprived it of legal effect

by failing to publish it in the

Federal Register. The scenario may not

be impossible, but it is surely

incredible. We constantly remind

agencies to draw only rational

inferences. Courts must do the same.

The Sierra Club also argues that

EPA made a determination in a

rulemaking. It points to a 1998 EPA

rule listing areas that had attained

ozone standards; the rule did not

include St. Louis on the list. See 63

Fed. Reg. 31,014, 31,059 (June 5,

1998). The focus of the rule was not

the St. Louis area's attainment

status. The rule instead provided a

foundation for EPA's plan to switch

from one-hour to eight-hour attainment

standards. EPA specifically noted that

the purpose of the rule was not to

reclassify any areas. See 63 Fed. Reg.

31,017. Furthermore, the status quo

for St. Louis's air quality after 1991

was "nonattainment," so the fact that

it was not included on a list of

regions that had attained compliance

does not, in itself, indicate that EPA

had made the statutory determination.

The next issue is whether the

district court erred in refusing the

Sierra Club's request for what it

calls "nunc pro tunc" relief--that is,

to order EPA to date its attainment

determination May 15, 1997, although

it actually made the decision pursuant

to the court's direction in a rule

published on March 19, 2001.

"Nunc pro tunc" is a fancy phrase

for backdating. Translated as "now for

then," BLACK'S LAW DICTIONARY 1097

(7th ed. 1999), it is an ancient tool

of equity designed to give retroactive

effect to the order of a court. See,

e.g., Mitchell v. Overman, 103 U.S.

62, 65, 26 L. Ed. 369 (1880); Eppes ex

rel. Wayles v. Randolph, 6 Va. (2

Call) 125, 180, 186-87 (1799); BROOM'S

LEGAL MAXIMS 94 & n.5 (6th Am. ed.

1868). Courts have not been consistent

in their use of this power. See In re

Auto-Train Corp., 810 F.2d 270, 275

(D.C. Cir. 1987). One line of

authority holds that the "power to

amend ... must not be confounded with

the power to create" and limits nunc

Page 3

285 F.3d 63, *66; 350 U.S. App. D.C. 411;

2002 U.S. App. LEXIS 6215; 54 ERC (BNA) 1149
pro tunc relief to situations in which

a clerical error creates a defect in

the record that a nunc pro tunc order

can relieve. See Gagnon v. United

States, 193 U.S. 451, 457-59, 48 L.

Ed. 745, 24 S. Ct. 510 (1904); see

also Gray v. Brignardello, 68 U.S. (1

Wall.) 627, 636, 17 L. Ed. 692 (1863);

Cent. Laborers' Pension, Welfare &

Annuity Funds v. Griffee, 198 F.3d

642, 644 (7th Cir. 1999) ("The only

proper office of a nunc pro tunc order

is to correct a mistake in the

records; it cannot be used to rewrite

history."). While this formulation

appears to predominate, there are

other cases that speak of nunc pro

tunc orders and judgments which supply

"actions that did not occur on the

earlier date." In re Auto-Train Corp.,

810 F.2d at 275 (citing In re Triangle

Chems., Inc., 697 F.2d 1280, 1288-89

(5th Cir. 1983)). On several

occasions, this court has directed

agencies to readjudicate matters

retroactive to the date of the initial

determination, often--but not

always--invoking the Latin phrase in

our opinion. See Ethyl Corp. v.

Browner, 314 U.S. App. D.C. 247, 67

F.3d 941, 945 (D.C. Cir. 1995), and

cases there cited.

[*68] In any event, what Sierra

Club sought--to have the effective

date of EPA's court-ordered

determination converted to the date

the statute envisioned, rather than

the actual date of EPA's action--was a

form of relief the district court

quite properly rejected. Court-ordered

or not, EPA engaged in rulemaking. We

have held that the APA prohibits

retroactive rulemaking. See

Georgetown Univ. Hosp. v. Bowen, 261

U.S. App. D.C. 262, 821 F.2d 750,

756-58 & n.11 (D.C. Cir. 1987), aff'd,

488 U.S. 204, 102 L. Ed. 2d 493, 109

S. Ct. 468 (1988). The relevant

provisions of the Clean Air Act

contain no language suggesting that

Congress intended to give EPA the

unusual ability to implement rules

retroactively. See 821 F.2d at 758.

There may be an exception for

situations in which the "statute

prescribes a deadline by which

particular rules must be in effect"

and the "agency misses that deadline."

See Bowen v. Georgetown Univ. Hosp.,

488 U.S. 204, 224-25, 102 L. Ed. 2d

493, 109 S. Ct. 468 (1988) (Scalia,

J., concurring). Even then,

retroactivity must be "reasonable,"

id. (Scalia, J., concurring), and it

is far from that here. Although EPA

failed to make the nonattainment

determination within the statutory

time frame, Sierra Club's proposed

solution only makes the situation

worse. Retroactive relief would likely

impose large costs on the States,

which would face fines and suits for

not implementing air pollution

prevention plans in 1997, even though

they were not on notice at the time.

The district court adhered to the

limits of its jurisdiction by ordering

EPA to perform the nondiscretionary

function of making an attainment

determination. See 42 U.S.C. §

7604(a)(2). Even if it could have gone

further and ordered the relief the

Sierra Club requested, we see no basis

for concluding that the court should

have been compelled to take that step.

The final issue deals with the

Sierra Club's motion to enforce the

district court's judgment through an

injunction preventing EPA from taking

further action on its proposed rules

to postpone St. Louis's nonattainment

date, and to withdraw its

nonattainment determination and

resulting classification change.

The district court was well aware

of EPA's plans. The agency asked the

court to clarify whether its order

would prevent EPA from engaging in

another rulemaking to postpone the

effective date of its court-ordered

determination of attainment. The court

ruled that its order did not restrict

EPA from engaging in such later

rulemakings. By the time of the motion

to enforce the judgment, there was no

doubt that EPA had complied with the

court's original directive and

Page 4

285 F.3d 63, *67; 350 U.S. App. D.C. 411;

2002 U.S. App. LEXIS 6215; 54 ERC (BNA) 1149
performed its non-discretionary

duties. The objection is that once

having complied, EPA undid what the

order required and thereby violated

it. To accept this contention would

require us to read the court's order

as restricting more than the court

itself intended. Given the level of

respect we owe to a district court's

decision regarding what its orders

forbid or require, see United States

v. Western Elec. Co., 310 U.S. App.

D.C. 281, 46 F.3d 1198, 1205 (D.C.

Cir. 1995), and the district court's

limited jurisdiction in a citizen suit

to order only EPA's performance of

non-discretionary duties, see 42

U.S.C. § 7604(a)(2), we cannot say the

court's rejection of the Sierra Club's

motion was in error.

The Sierra Club takes note of our

denial of its motion for a writ of

prohibition, and our statement that it

had "adequate means to obtain the

relief requested" and could "move

before the district court for

enforcement of the district court's

January 29, 2001 order." In re Sierra

Club, 2001 U.S. App. LEXIS 18045, 2001

WL 799956, at *1. We do not think much

can be read into this. A writ of

prohibition will not issue unless

[*69] the applicant has no other

adequate forum in which to seek

relief--adequate in the respect of

having a forum in which to bring the

action, not a forum that will rule in

the applicant's favor. See In re

Sealed Case No. 98-3077, 331 U.S. App.

D.C. 385, 151 F.3d 1059, 1063 (D.C.

Cir. 1998). Our order also said that

the Sierra Club could seek judicial

review of EPA's final actions

regarding the extension of the St.

Louis attainment area's effective date

and withdrawal of its nonattainment

classification in the Seventh and

Eighth Circuits. In re Sierra Club,

2001 U.S. App. LEXIS 18045, 2001 WL

799956, at *1. The Sierra Club is now

pursuing that avenue of relief. If it

succeeds in having the rules vacated,

the nonattainment classification rule

promulgated pursuant to the district

court's order will presumably stand.

* * *

Accordingly, the order of the

district court granting summary

judgment to the Sierra Club but

denying nunc pro tunc relief, and the

court's order denying the Sierra

Club's motion to enforce the judgment

are affirmed.

Page 5

285 F.3d 63, *68; 350 U.S. App. D.C. 411;

2002 U.S. App. LEXIS 6215; 54 ERC (BNA) 1149