F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

W I L D E A R

T H G U A R D I A N S , M I D W

E S T E N V I R O N M E N T A L D E F E

N S E C E N T E R , and S I E R

R A C L U B , Plaintiffs-Appellants
,

v

.

G I N A M C C A R

T H Y , in her official capacity as Administrator of the Environmental Protection Ag ency ,

Defendant-Appellee

. N o. 12-16797

D.C. No. 4:11-cv-05651- YGR

OPI NI ON

Appeal from the United States District Court for the Northern District of California Y vonne Gonz a lez Rog ers, District J udg e, Presiding

Arg ued and Submitted October 10, 2014—San F rancisco, California

F iled December 1, 2014

B efore: W illiam C. Canby , J r., W illiam A. F letcher, and Paul J . W atford, Circuit J udg es.

Opinion by

J u dg e W atfordW I L D E A R T H G U A R D I A N S V

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SUMMARY *

Environm ental Law

The panel affirmed the district court’s dismissal f or lack

o f s ubject matter jurisdiction of plaintiff environmental
g roups’ Clear Ai r A c t citiz en-suit action seeking to require the Environmental Protection Ag ency ’s Administrator to issue revised reg

ulations g overning oz one pollution.

The Clean Air Act’s citiz en-suit provision, 42 U .S. C. § 7604, authoriz es suits ag ainst the E PA’s Administrator only for actions w here there is a n allege d f

a i lure by the Administrator to perform a n act or duty w hich is not discretionary w ith the Administrator. I n 1977, Cong ress added a new prog ram to the Clean Air Act
, k n o w n as the Prevention o f Sig nificant D eterioration (PSD ) prog r am, to p revent air quality from sig n ificantly d e teriorating in areas t h a t a lready had relatively clean air. Section 166(a) of th e Clean A i r Act required the EPA to issue regulations implementing the PSD prog ram, and plaintiffs all ege d that the Administrator had a nondiscretionary duty to issue revised

oz o ne reg ulations under § 166(a).

The panel held that gi v en § 1 66(a)’s ambig uity
, the

ex istence of a nondiscretionary duty to promulg ate revised PSD reg ul a t i ons for oz one was not clear cut or readily ascertainable from the statute. The panel concluded that this

w a s enoug h to preclude plaintiffs’ reliance on § 7604(a)(2 ) as the jurisdictional basis for their suit.

* T h is s u m

m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.W I L D E A R T H G U A R D I A N S V

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COUNSEL

David B e nder ( arg ued) and Christa W esterberg
, McGillivray
, W e sterberg & B ender, Madison, W isconsin; Robert Ukeiley
, B erea, Kentucky ; K

ristin Henry
, Sierra Club, San F rancisco, California; J ames J ay Tu t c hton, W ildEarth Guardians, Centennial, Colorado, for Plaintiffs-Appellants.

Robert L undman ( a

r g ued), I g nacia More n o , Assistant Attorney General, Eileen McDonoug h, and David Gunter, United States Department of J u stice, Environment & Natural Resources D ivision, W ashing ton, D.C.; B rian Doster a nd Melina Williams, Office of General Counsel, Environmental Protection Ag e ncy , for Defendant-Appellee.

OP INION

W A TF ORD, Circuit J udg e:

Plaintiffs W ildEarth G uardians, Midwest Environmental Defense Center, and Sierra Club are org aniz a tions dedicated
to environ m e n tal conservation. T hey believe the Environmental Protection A g e ncy (EPA) has been derelict in its duty to p rotect the n a t i on’s air from g round-level oz o ne pollution. They sued the EPA’s Administrator in federal district court, seeking an o r d e r that would force the Administrator to issue revised regula t ions g overning oz o ne pollution.

Plaintiffs invoked the Clean Air A c t ’s c itiz en-suit provision, 4 2 U.S.C. § 7604, as t h e s o l e basis for subject
matter jurisdiction. Th a t provision authoriz es suits ag ainst the A dministrator, but only for actions “where there is alleg edW I L D E A R T H G U A R D I A N S V

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a failure of the Adm i n i s t rator to perform any act or duty under this chapter which is not disc r e t i o n ary with the Administrator.” § 7604(a)(2) ( e mphasis added). Plaintiffs contend the Administrator h as a nondiscretionary d u ty to issue revised oz one regul a t ions under § 166(a) o f the Clean Air Act, 42 U.S.C. § 7476(a). T h e district court held that the
statute permits, bu t does not require, the Administrator to issue such reg ulations and therefore d ismissed plaintiffs’ cl aim for lack of subject matter jurisdiction. To facilitate immediate appeal, the court g r anted p laintiffs’ request to enter f inal judg ment on that claim u nder F ederal Rule of Civil Procedure 54(b).

The only i s s u e on appeal is w hether plaintiffs have adequat ely alleg e d the violation o f a nondiscretionary duty

. B efore we d iscuss the parties’ competing interpreta t i o n s o f § 166(a), a brief summary of the relevant regulatory scheme is necessary

.

W h en Cong ress enacted the Clean Air Act Amendments of 1970, it required EPA to identify pollutants that “cause o r contribute t o air pollution which may reasonably be anticipated to endang er public health or welfare.” 42 U .S.C. § 7408(a)(1)(A). F or e ach such pollutant, Cong ress r equired EPA to issue national ambient air quality standards (NAAQS). § 7409(a)(1)(A). To oversimplify a b it, NAAQS
set limits on the permissible concentrations o f re g ulated pollutants in the ambient air.

I n 1971, EPA issued NAAQS for six pollutants: partic u late matter, sulfur diox ide, photochemical ox idants, hy drocarbons, carbon monox ide, and nitrog en diox id e

. 36 F ed. Reg

. 8186, 8186 (Apr. 30, 1971). The t e r m “photochemical ox idants” includes oz one, and in 1979 EPAW I L D E A R T H G U A R D I A N S V

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f o rmally chang ed the chemical desig n ation for the r elevan t NAAQS to “oz one.” 44 F ed. Reg

. 8202, 8202 (F eb. 8, 1979). F or our purposes, “photochemical ox idants” a n d “oz one” refer to the same thing

.

On A ug ust 7, 1977, Cong ress added a new prog ram to the C lean Air Act, known as the Prevention of Sig nifican t Deterioration (PSD) p rog ram. Clean Air Act A mendments o f 1977, Pub. L

. No. 95–95, 9 1 Stat. 685. As its name implies,
t h e PSD prog ram is d esig ned to prevent air quality f r o m sig nificantly deteriorating in areas that already have relatively clea n a ir. The prog ram thus a pplies to “attainment” areas, meaning areas that me e t the NAAQS for a g iven pollutant, and “uncl as sifiable” areas, meaning areas for which insufficient data ex ists to determine whether the NAAQS for

a g iven pollutant have or h a v e n o t b een met. 4 2 U .S.C. § 7471; Alaska Dep’t of

Envtl. Conservation v. EPA
, 540 U.S. 461, 470–71 (2004).

As p a r t of the newly enacted PSD prog ram, Cong ress added § 166 of the Clean Air Act, the s t a t u t e a t issue h ere. S u b s ection (a) r equires EPA to i s s u e r e gu l a t i o n s implementing the PSD prog ram. I t provides in full:

( a ) H y d r o c a r

b o n s , c a r

b o n m o n o x ide
, photochemical ox idants, and nitrog en ox ides

I n the case of the pol l u tants hy drocarbons, carbon monox ide, photochemical ox idants, and nitrog e n ox ides, the Administrator shall conduct a study and not later than two y ears after Aug ust 7, 1977, p r omulg a te regulations
to prevent the sig nificant d eterioration of air quality which would result from the emissionsW I L D E A R T H G U A R D I A N S V

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o f s u ch pollutants. I n the case of pollutant s for which n ational ambient air quali ty standards a

re promulg ated a fter Aug ust 7, 1977, he shall promulg ate such regulations
not more than 2 y ears after t h e date o f promulg ation of such standards.

42 U.S.C. § 7476(a).

B o th the first and second s e n tences of this provision unquestionably impose nondi s c r etionary duties on the Administrator. The first sentence required the Administrator
to promulg ate PSD regulations for the four listed pollutants

no later than Aug ust 7
, 1979. The parties ag ree that this duty has lon g s i n ce been discharg ed. T he focus of this appeal is therefore on the duty imposed by the second sentence. That sentence, too, requires the Administrator to promulg ate PSD
reg ulations, but the precise scope of the nondiscretionary duty it imposes depends on how broadly or narrowly one interprets the sentence.

W e ’ll beg in w ith the narrow interpretation, w hic h i s t he

one EPA favors. Read tog ether, the first and second
sentences of § 166(a) c o u ld be construed as referring to two mutually ex clusive sets o f p o llutants: pollutants for which NAAQS h ad already been promulg ated a s of A ug ust 7, 1977 (first sentence), and pollutants for w hich NAAQS would not be p r o mulg ated u n til sometime later (second sentence). Under tha t r eading
, the second sentence would impose a nondiscretionary duty
, but a one-time duty of limited scope: to promulg ate PSD regulations within tw o y e ars a fter N A A Q S are first issued for a newly regulated polluta n t

. Since oz one is one of the already regulated pollutants coveredW I L D E A R T H G U A R D I A N S V

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by the first sentence, E PA argues, the mandatory du t y imposed by

the second sentence simply doesn’t apply

here.

Plaintiffs, of course, urg e us to reject that reading . They contend the second sentence should be read more broadly to

cover all pollutants. Read in t h at f a shion, the second
sentence would impo s e a n o ndiscretionary duty to promulg ate PSD reg u lations not o nly when NAAQS are first issued f or a newly reg ulated pollutant, but a lso when NAAQS are revised for any pollutant, including the f o u r m entioned in the first
sentence. B ecause EPA revised the N A A Q S for oz one on March 27, 2008, plaintiffs argue , t he ag ency had a nondiscretionary duty to p romulg ate revised PSD regulations for oz one within two y ears of that date. I t is undisputed that EPA did not do so, and in fact still has not done so.

I f our task were to d ecide which of these two reading s o f
t h e statute is correct, this mig ht be a hard case, since both
appear plausible. On the one hand, th e narrow reading is plausible g iven the parallel structure of the first and second
sentences. T he first sentence beg ins, “I n the case o f the [ four named pollutants] ” ; the second b e g ins, “I n the case o f pollutants for which [ NAAQS] are promulg ated after Aug ust 7, 1 977.

. . . ” The repeated use o f the p hrase “I n the case of”
sug g ests that the drafters intended the firs t s e n t ence to address one set of circumstances a nd the second sentence to address another. That inference is streng thened by the fact that, as of A ug ust 7, 1 977, the only pollutants then subject to NAAQS for which PSD reg u lations would be required were the four listed in the first sentence. (T h e r e w e re two additional pollutants f

o r wh ich NAAQS had already been i s sued—particulate matter and sulfur diox ide—but E P A didn’t need to promulg ate PSD r e g ulations for them because Cong r ess itself had established the initial PSD requirementsW I L D E A R T H G U A R D I A N S V

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in a separate statutory p rovision. S ee 42 U.S.C. § 7473.) I t’s thus easy to see why those drafting the statute in 1977 mig ht have used the phrase “pollutants for which [ N AAQS] a re promulg a ted after Aug ust 7, 1 9 7 7” to disting uish the set o f
as-y et-unreg

ulated pollutants covered by the second sentence from the d istinct set o f already r eg u lated pollutants covered by the first. W h i l e t h e tex t mig ht have been clearer had the second sentence referred to “other pollutants not covered b y the first sentence,” or “ pollutants for which NAAQS are first promulg a ted after Aug ust 7, 1977,” the drafters co u l d have understood the lang uag e they chose as a lready d r a w i n g that distinction.

On the other hand, plaintiffs’ broad reading of the second
sentence—as encompa s sing all pollutants and imposing a mandatory duty to revise the PSD regu latio n s each time the NAAQS are revised—is plausible a s well. As plaintiffs point out, it would have been sensible f o r Cong ress to conclude that whenever the NAAQS for a g iven p olluta n t are revised, the corresponding PSD regulations should b e revised too, since

new information that justifies r evisions to the NAAQS would likely justify revisions to the P S D re quirements. (EPA has historically calculated PSD requirements by c alibrating them
t o the NAAQS g overning each pollutant. See 75 F ed. Re g. 64,864-01, 64,869 (Oct. 20, 2010).) B ut eve n i f Cong ress h e ld that view, it doesn’t strike u s as irrational or absurd
, a s plaintiffs sug g est, for Cong ress to have created a regulato r y scheme predicated on the narrow reading of § 166(a). Cong r ess could have been content to kick-start the PSD
prog r am b y mandating EPA’s promulg ation o f initial PSD
reg ulations, b u t t hen have left to the ag ency ’s discretion the responsibili t y for making whatever revisions to those
reg ulations mig h t be warranted when the corresponding NAAQS were revised.W I L D E A R T H G U A R D I A N S V

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I n the end, we do n ’ t have to decide which of these conflicting interpretations of § 166(a) is correct, because our

cases have a dopted what amounts to a clear statement rule in this contex t. When a p laintiff sues the EPA Administrator for failure “to perform any a ct or duty u nder this chapter w h i c h is not discretionary with the Ad m inistrator,” 42 U .S.C. § 7604(a)(2), we ha v e held that the nondiscretionary nature of the duty must be c lear-cut—that is, r ea d i l y a scertainable from the s tatute alleg edly g iving rise to the duty

. Our Children’s Earth Found. v. EPA
, 527 F .3d 842, 851 ( 9th Cir. 2008) ( interpreting the Clean W ater Act’s similar c itiz en-suit provisi o n ) ; see also F

armers Union Cent. Exch., Inc. v

. Thomas
, 881 F .2d 757, 760 (9th Cir. 1989). W e must be able
to identify

a “specific, unequivocal command” from the tex t of the s t a t ute at issue using traditional tools of statutory interpretation; it’s not enoug h that such a command could be teased out “from an amalg amation of disputed statutory provisions and leg islative history c o u p l ed with the E PA’s

own earlier interpretation.” Our Children’s Earth
, 527 F .3d at 851 (internal quotation marks omitted).

Given § 166(a)’s ambig uity
, w e c a n n o t say that the

ex istence of a nondiscretionary duty to promulg ate revised PSD reg u lations f

or oz one is clear-cut or r eadily a scertainable from the statute. That is e n oug h to preclud e p l a i n tiffs’

r e l i a n ce on § 7604(a)(2) as the jurisdictional basis for their suit. The district court t h e refore correctly dismissed plaintiffs ’ c laim u nder the Clean Air Act’s c itiz en-suit provision for lack of subject matter jurisdiction.

AF F IRMED.