United States District Court, D. Maryland
K. Bredar Chief Judge.
State of Maryland filed suit against Scott Pruitt, in his
official capacity as Administrator of the United States
Environmental Protection Agency ("EPA"), and the
EPA ("Defendants"), seeking injunctive relief
related to Defendants' failure to perform a mandatory
duty under the Clean Air Act, 42 U.S.C. § 7401, et
seq. ("CAA"). The case was consolidated with a
similar action filed against Defendants by Chesapeake Bay
Foundation, Inc., Adirondack Council, Chesapeake Climate
Action Network, Environmental Defense Fund, Environmental
Integrity Project, Physicians for Social Responsibility,
Chesapeake, Inc., and Sierra Club (collectively, with
Maryland, "Plaintiffs"). (Order, ECF No. 9; Order,
No. JKB-17-2939, ECF No. 46.) The cases involve
Defendants' failure to respond to and act on a petition
filed by Maryland pursuant to section 126(b) of the CAA, 42
U.S.C. § 7426(b). Now pending before the Court is
Plaintiffs' Motion for Summary Judgment (ECF No. 15) and
Defendants' Cross-Motion on Remedy (ECF No. 26). The
issues have been briefed (ECF Nos. 16, 27, 28, and 33) and no
hearing is required, see Local Rule 105.6 (D. Md.
2016). For the reasons set forth below, Plaintiffs'
Motion will be GRANTED IN PART and DENIED IN PART and
Defendants' Cross-Motion will be DENIED. Pursuant to its
equitable powers, the Court will enter an order requiring
Defendants to take final action either making Maryland's
requested finding or denying the section 126(b) petition on
or before September 15, 2018.
parties agree on many of the relevant facts, including the
fundamental requirements of the CAA that are at issue here.
The CAA requires states to regulate sources of air pollution
within their boundaries to meet National Ambient Air Quality
Standards ("NAAQS") established by EPA. Any area
that does not meet NAAQS is designated a
"nonattainment" area and those areas that do meet
NAAQS are designated "attainment" areas. 42 U.S.C.
§ 7407(d). States also must develop and submit to EPA
State Implementation Plans ("SIPs")-comprehensive
emission control plans that specify how the state will
achieve and maintain NAAQS within the state. Id.
§§ 7407(a), 7410(a)(1).
addition to achieving attainment within their boundaries,
states also are obligated to ensure that sources of air
pollution within their boundaries do not "contribute
significantly" to nonattainment in other states.
Id. § 7410(a)(2)(D)(i)(I). In other words,
states must account for the fact that source emissions do not
respect artificial boundaries and do not simply stop at state
lines. Rather, their impact may be felt hundreds of miles
away in multiple other states. This section of the CAA is
commonly referred to as the "good neighbor"
provision. Not surprisingly, the Act provides recourse for
those states that believe their neighbors are not fulfilling
126 of the CAA provides that,
Any State or political subdivision may petition the
Administrator for a finding that any major source or group of
stationary sources emits or would emit any air pollutant in
violation of the prohibition of section 7410(a)(2)(D)(ii) of
this title or this section [i.e., the "good
neighbor" provision]. Within 60 days after
receipt of any petition under this subsection and after
public hearing, the Administrator shall make such a
finding or deny the petition.
42 U.S.C. § 7426(b) (emphasis added). If the
Administrator makes a finding pursuant to § 7426(b), it
is a violation of the Act "for any major existing source
to operate more than three months after such finding has been
made with respect to it." Id. § 7426(c).
Alternatively, the Administrator may permit a source to
continue operating past the three-month period pursuant to a
schedule designed to achieve compliance through incremental
also provides that any person, including a State, "may
commence a civil action ... against the Administrator where
there is alleged a failure of the Administrator to perform
any act or duty under this chapter which is not
discretionary." 42 U.S.C. § 7604(a)(2).
November 26, 2016, Maryland filed a § 126(b) petition
with EPA, requesting that the Administrator make a finding
that 36 electric generating units ("EGUs") located
in five different states (Indiana, Kentucky, Ohio,
Pennsylvania, and West Virginia) are violating the good
neighbor provision of the CAA. (Maryland § 126(b)
Petition, ECF No. 1-1.) Specifically, the petition contends
that the 36 EGUs are emitting nitrogen oxides in a manner
that significantly contributes to Maryland's
nonattainment of the 2008 Ozone NAAQS. (Id.) On
January 3, 2017, Defendants granted themselves a six-month
extension to respond to the petition pursuant to 42 U.S.C.
§ 7607(d)(10). Defendants, however, did not hold a
public hearing or otherwise act on Maryland's petition
within the new deadline.
20, 2017, Maryland provided notice to Defendants that it
intended to file suit against them pursuant to the CAA's
citizen suit provision, 42 U.S.C. § 7604(a)(2). The
plaintiffs in No. 17-2939 likewise provided notice to
Defendants of their intent to file suit based on the
Administrator's failure to perform a nondiscretionary
duty. After waiting the requisite sixty days following their
notice to Defendants, see 42 U.S.C. §
7604(b)(2), Plaintiffs filed the instant consolidated civil
seeking summary judgment must show "that there is no
genuine dispute as to any material fact" and that it is
"entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The burden is on the moving party to
demonstrate the absence of any genuine dispute of material
fact. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970). If a party carries this burden, then the court
will award summary judgment unless the opposing party can
identify specific facts, beyond the allegations or denials in
the pleadings, that show a genuine issue for trial.
Fed.R.Civ.P. 56(e)(2). The court will assess the merits of
the motion, and any responses, viewing all facts and
reasonable inferences in the light most favorable to the
party opposing the motion. Scott v. Harris, 550 U.S.
372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230
(4th Cir. 2008).