ELR Citation: ELR 20598
No(s). C92-1636 TEH (N.D. Cal. Aug 19, 1994)

The court holds that it has jurisdiction over environmental groups' claim that the U.S. Environmental Protection Agency (EPA) failed to perform a non-discretionary duty under §176(c) of the Clean Air Act (CAA) when it refused to issue final regulations governing conformity requirements for transportation projects in attainment areas. On November 24 and 30, 1993, EPA issued rules setting forth conformity criteria and procedures for transportation plans and projects and other federally supported projects in nonattainment and maintenance areas. Believing it to be a matter within its discretion, EPA decided not to issue a rule governing attainment areas. The court holds that jurisdiction lies in the district court rather than the U.S. Court of Appeals for the D.C. Circuit, because the groups' claim is more accurately characterized as a claim that EPA has failed to perform a non-discretionary duty than as a challenge to a final agency action or a national regulation. The groups are not challenging the adequacy, merits, or scope of EPA's conformity rules for maintenance or nonattainment areas. Rather, the groups assert that EPA has failed to promulgate any rule on a discrete and separate matter—conformity for attainment areas—despite a non-discretionary duty to do so under the statute. That EPA may issue one subset of rules required by a statute does not deprive the district court of jurisdiction to compel the Agency to issue an additional subset of rules, concerning a discrete area, if the statute also mandates the additional subset by a specified deadline. Moreover, CAA §176(c)(4) contains a special provision for suit in the district court to compel EPA to promulgate conformity criteria and procedures. Although the language refers to CAA §304, which is the Act's basic jurisdictional provision for district courts, it is significant that Congress specifically authorized district courts to address claims that EPA has not satisfied its duty to issue conformity criteria under §176(c)(4). Further, EPA's argument that the groups are really seeking review of a final agency action does not withstand close scrutiny. The final action that EPA relies on to support appellate jurisdiction is its decision that the CAA should not be interpreted to impose a mandatory duty to issue conformity criteria for attainment areas. If this constitutes final action for jurisdictional purposes, then EPA could transform any claim that it has failed to perform a non-discretionary duty into an appellate issue simply by making a "final decision" that it has interpreted the statute as not imposing such a duty. Such a rule would substantially undermine the jurisdiction that Congress bestowed on district courts in §304. The court holds that EPA's reliance on Sierra Club v. U.S. Environmental Protection Agency, 23 ELR 20827 (D.C. Cir. 1993), is misplaced. That decision did not, as EPA claims, enunciate any flat rule that jurisdiction always lies in the D.C. Circuit except when EPA concedes that a rule it has issued does not satisfy the statutory mandate. If anything, Sierra Club supports the groups' position, because it confirms that although EPA may issue a final rule addressing one discrete sub-area, this final action does not automatically deprive the district court of jurisdiction to compel EPA to undertake additional rulemaking addressing another discrete, but related sub-area, where EPA has a non-discretionary duty to do so. The court also notes that if a court were to find that EPA has a non-discretionary duty to engage in additional rulemaking regarding conformity criteria for attainment areas, then it would be required to fashion and monitor a remedy, which normally entails a number of factual issues. Notably, district courts were given jurisdiction over claims alleging the failure to undertake a non-discretionary action, at least in part, because district courts are often better equipped to address factual issues and to monitor compliance with deadlines. In a footnote, the court rejects as premature the groups' request that the court require EPA to begin preparations for additional rulemaking pending the outcome of the jurisdiction issue. The court finds no basis for ordering such preparatory actions absent any finding that EPA is under a non-discretionary duty to engage in additional rulemaking. The court orders EPA to respond to the groups' motion for partial summary judgment and/or motion for enforcement of a prior court order pursuant to a specified schedule.

Counsel not available at this printing.