[00:00:03] Speaker 00: Case number 14-5187, Samuel Zook et al. [00:00:07] Speaker 00: Appellants vs. Environmental Protection Agency and Gina M. McCarthy. [00:00:11] Speaker 00: Mr. Taylor for the appellants, Mr. Gunter for the appellees. [00:00:16] Speaker 00: Good morning. [00:00:18] Speaker 02: I may please the court. [00:00:19] Speaker 02: My name is Wally Taylor. [00:00:21] Speaker 02: I represent four plaintiffs who are requesting that the EPA list certain pollutants as pollutants under the Clean Air Act to be regulated and animal feeding operations as stationary sources to be regulated. [00:00:37] Speaker 02: We have brought this case to the Citizen Suit Statute of the Clean Air Act, which provides both for [00:00:49] Speaker 02: that suits regarding non-discretionary actions where there is a time-certain deadline or a ministerial act or unreasonable delay. [00:01:03] Speaker 02: That unreasonable delay provision was put in there in 1990 with the amendments to the Clean Air Act. [00:01:10] Speaker 02: The EPA takes a position that the language in sections 108 and 111, which provide for the listings of these pollutants and sources, allows them the judgment or the discretion to never make this listing under either statute. [00:01:34] Speaker 02: Statutes, however, are clearly mandatory. [00:01:39] Speaker 02: They say that EPA shall list from time to time or revise the list from time to time. [00:01:51] Speaker 02: The courts have said that this judgment that is set forth in that clause in the administrator's judgment simply means at most that the administrator has the judgment concerning the specifics of a proposed rule or proposed listing, not the judgment to never list those pollutants or those sources. [00:02:21] Speaker 04: Well, they're not saying that they have the discretion never to do it. [00:02:27] Speaker 04: They're just saying under this statute, you can't challenge it. [00:02:29] Speaker 04: You could file rulemaking and argue that their actions are arbitrary and capricious, then you could challenge it that way. [00:02:37] Speaker 04: Isn't your problem that this statute's limited to violations of non-discretionary acts? [00:02:46] Speaker 04: And that's all the case is really about. [00:02:49] Speaker 04: You can challenge their discretion. [00:02:53] Speaker 04: You just have to do it in a rulemaking. [00:02:57] Speaker 02: The EP's position, as I understand it, is that the discretion they're asking for is never to make the listing. [00:03:04] Speaker 04: You could challenge that. [00:03:06] Speaker 04: If that's what they responded in a request for rulemaking, you'd probably have a pretty good case. [00:03:16] Speaker 02: A petition for rulemaking, as I said in my brief, is a very difficult petition to take in terms of the deference and everything that's given to the EPA. [00:03:32] Speaker 02: But I don't see anything in either the Clean Air Act or the citizen supervision that requires a plaintiff [00:03:44] Speaker 02: to undertake a petition for rulemaking, and in fact, as I noted, the... No, there isn't anything in that statute that requires it. [00:03:52] Speaker 04: You're totally right about that. [00:03:55] Speaker 04: But it's limited to non-discretionary acts, and citizens have rights to file petitions for rulemaking separate from the Citizens Act. [00:04:06] Speaker 02: You certainly could, but I don't think you have to. [00:04:09] Speaker 02: And as I indicated in my reply brief, the impetus for the amendment in 1990 to the Citizenship Provision was a decision in Maine versus Thomas. [00:04:20] Speaker 02: In that case, the court said that [00:04:25] Speaker 02: Unfortunately, prior to the amendment, the only remedy that the plaintiffs had was a petition for rulemaking. [00:04:33] Speaker 02: So it seems pretty clear that the purpose of the amendment to the citizen supervision was to allow a plaintiff to [00:04:48] Speaker 02: directly sue the EPA under the citizen suit provision for unreasonable delay and not have to go through the petition for rulemaking. [00:04:57] Speaker 01: But the point the EPA makes, I think, is that it's one thing to file a citizen suit that complains about unreasonable delay and then says something to the effect of [00:05:08] Speaker 01: You need to make an endangerment finding at some point and you haven't made an endangerment finding. [00:05:12] Speaker 01: It's another thing to say, what you need to do is list. [00:05:17] Speaker 01: Because as the EPA reads the statute, I think, there's a sequence. [00:05:22] Speaker 01: First, there's the discretionary making of an endangerment finding. [00:05:26] Speaker 01: And then the mandatory duty that your suit is predicated upon presupposes that that endangerment finding has been made. [00:05:33] Speaker 01: But what your suit does is to skip over the first discretionary part and go directly to the mandatory part. [00:05:40] Speaker 01: And that's what EPA is saying the citizen's suit permission doesn't allow. [00:05:43] Speaker 01: It would be one thing if you file a suit that said, you need to make a finding. [00:05:47] Speaker 01: It's just taken too long to make a finding. [00:05:50] Speaker 01: It would be another thing to say, based on everything that's out there in the world, you need to list. [00:05:56] Speaker 01: Because the list is contingent, the statute makes the list contingent on the finding. [00:06:00] Speaker 02: Well, I believe, Your Honor, that the error the EPA is making here is saying that that initial step, the endangerment finding, is totally in their discretion whether to ever make it or not. [00:06:13] Speaker 02: And if that were the case, then the mandatory nature of the statute would be annul it. [00:06:23] Speaker 02: They would never do the listing from time to time as the statute requires. [00:06:28] Speaker 02: So that's why [00:06:32] Speaker 02: the court have said in the Friends of the Earth case and the Center for Biological Diversity case that the phrase in the Administrator's judgment does not mean that they have the judgment [00:06:47] Speaker 02: whether or not to ever make that finding, the judgment is the specifics of that finding. [00:06:58] Speaker 02: And that is a determination that the district court is in a position to make whether or not the specifics are correct or not. [00:07:10] Speaker 02: But that does not preclude the [00:07:16] Speaker 02: the non-discretionary nature of the EPA's duty to make that finding and to revise the listing from time to time. [00:07:28] Speaker 01: And the courts have said that from time to time is a perfectly acceptable... But how would you say that there's a non-discretionary duty to make the finding, by which finding I'm talking about endangerment? [00:07:43] Speaker 01: when the statute speaks in terms, both statutes speak in terms of judgment, that it's hard to see, at least there would seem to be some tension between an argument that there's a non-discretion, there's no discretion involved in the endangerment finding, but then the statute speaks in terms of the EPA's judgment. [00:08:02] Speaker 01: That seems like discretion. [00:08:05] Speaker 04: Well, in fact, in Mass EPA, the Supreme Court referred to it as discretionary. [00:08:12] Speaker 02: Well, the endangerment finding, as I said, is something that has to be done in order for the listing to be made. [00:08:27] Speaker 02: And if the endangerment finding is something the EPA never has to do, or just do whatever they want, then the mandatory nature of the statute [00:08:39] Speaker 02: is not carried out. [00:08:41] Speaker 02: And that's in fact what even Judge Jackson found in the Friends of the Earth case, that the phrase of administrative judgment does not mean that the VPA has the discretion to never make that judgment. [00:08:59] Speaker 02: And I would point out that in this case, [00:09:05] Speaker 02: We believe that the evidence is so clear regarding the endangerment from these pollutants and from these sources that the district court could find if we get a remand and go back and do discovery that there's just no question that the EPA would have to make the finding. [00:09:28] Speaker 02: question to the district court. [00:09:30] Speaker 02: The issue here is that the EPA does not have the discretion to never make that finding. [00:09:39] Speaker 02: Most of the cases that the EPA relies on are pre-1990 cases. [00:09:48] Speaker 02: The one post-1990 case that seems to be the most relevant is American Lung Association v. Riley. [00:09:55] Speaker 02: And in that case, the court said that it's for the district court to determine the unreasonable delay under the citizen suit when there is no [00:10:10] Speaker 02: a time-certain deadline, but that the time period is from time to time. [00:10:15] Speaker 02: So I think that's what we have here. [00:10:16] Speaker 02: The two statutes, Section 108 and 111, clearly say that the EPA shall, from time to time, make these listings. [00:10:27] Speaker 02: And they cannot avoid that by saying that they have the judgment to never make that listing. [00:10:35] Speaker 06: All right. [00:10:35] Speaker 06: Why don't we hear from Pelley, and then we'll give you some time on rebuttal. [00:10:50] Speaker 03: Good morning, I'm David Gunter from the Department of Justice here on behalf of EPA. [00:10:54] Speaker 03: With me at council table is Scott Jordan from EPA's Office of General Counsel. [00:10:59] Speaker 03: What's at stake in this case is the question of who can set the regulatory agenda for EPA's regulation of air pollutants and stationary sources. [00:11:07] Speaker 03: In Norton v. Sewell, the Supreme Court said that the court can only compel agency action if Congress has given EPA a specific unequivocal command that leaves EPA with no discretion. [00:11:17] Speaker 03: So if the court has given EPA such a command, then the court is bound to enforce it. [00:11:25] Speaker 03: But if Congress has left EPA any discretion at all, then the act doesn't allow private litigants to come in with a complaint and drive EPA's agenda. [00:11:34] Speaker 06: So let me ask you, what's the status of these rule makers? [00:11:37] Speaker 03: Currently there is a, there are petitions for rule makings from other parties. [00:11:44] Speaker 03: They're not alleged in the complaint and so I don't think we can consider them here. [00:11:48] Speaker 05: Matter of public record. [00:11:49] Speaker 03: Matter of public record and EPA has not yet acted upon them and there's an active case. [00:11:54] Speaker 06: So the reason I ask the question is suppose hypothetically there had been a series of requests for rule making and nothing happened for two decades. [00:12:06] Speaker 06: Still [00:12:08] Speaker 06: No way to get at that. [00:12:10] Speaker 03: uh... noise citizens the way to get at that would be to file for making and then to allege unreasonable delay this is an action right in a sense it yes this is a suit under section three or four uh... and in fact other parties have filed such a petition and litigation is ongoing as well happen what's unusual about this in the district court here i believe it's currently in the district court in district of dc uh... assessment clarification on that [00:12:40] Speaker 01: The party that filed the citizen suit alleging that there's unreasonable delay in dealing with the petition for rulemaking does not have to be the same party that filed the petition for rulemaking in the government's view, or does it have to be the same party? [00:12:53] Speaker 03: I don't know what our position is on that. [00:12:56] Speaker 01: I'm sorry. [00:12:57] Speaker 01: That's okay. [00:12:58] Speaker 01: So in other words, if the same entity here, if the same plaintiff here wanted to file a citizen suit and says, I don't have my own petition for rulemaking pending, but there are petitions for rulemaking pending. [00:13:11] Speaker 01: I care a lot about them because the folks that I represent have the same interests as those folks. [00:13:16] Speaker 01: There's been a lot of delay in taking any action in response to those. [00:13:19] Speaker 01: So I'm filing a citizen suit. [00:13:21] Speaker 03: I could imagine some defenses that the government might raise to that, such as whether the plaintiffs in that case had exhausted their administrative remedies. [00:13:28] Speaker 03: But I can't bind the government on that here, because this case is different. [00:13:33] Speaker 06: OK, so let me just be clear. [00:13:35] Speaker 06: The argument here is, for the reasons Judge Tatel was exploring with counsel for Appellant, this lawsuit, as he styled it, doesn't fit within [00:13:49] Speaker 06: the statute. [00:13:51] Speaker 06: And I just want to be clear, the argument EPA makes is, well, you can file a rulemaking. [00:14:00] Speaker 06: So Judge Trina Vossum's question, I just want to be clear that if a rulemaking has been filed, a petition for rulemaking involving these same pollutants and the same stationary sources, [00:14:18] Speaker 06: Are you suggesting that if this plaintiff were to file the citizen suit under 304, that there would be an exhaustion problem? [00:14:28] Speaker 06: I realize this is beyond your case, but I just want to be clear, because in your brief you did say they could file, and I thought that may be where Judge Sreenivasan's question was coming from. [00:14:41] Speaker 03: What I suggested in my brief is that these plaintiffs could file a notice, I'm sorry, a petition for rulemaking. [00:14:47] Speaker 03: And if they did that and EPA had not acted on it, then they could seek review for unreasonable life. [00:14:53] Speaker 06: So if the very identical petition for rulemaking had already been filed, and part of their brief is that there have been rulemakings, petitions for rulemakings filed, then nothing's been done. [00:15:10] Speaker 03: That's the case that I don't want to take a position on. [00:15:12] Speaker 03: No, that's the case that they argue. [00:15:14] Speaker 06: No, they argue that in their brief. [00:15:16] Speaker 06: They say there are rulemaking pending and EPA hasn't done anything. [00:15:22] Speaker 03: I agree with that, Judge Reuters. [00:15:24] Speaker 03: They do make that point in their brief. [00:15:26] Speaker 03: They did not make that allegation in their complaint. [00:15:29] Speaker 03: And since this was dismissed on a 12b6, what we need to look at is whether the allegations of their complaint state a claim. [00:15:36] Speaker 03: Now, the only claim of duty that their complaint makes is a freestanding duty that's independent of any petition for rulemaking. [00:15:43] Speaker 03: that can arise any time there is scientific literature in the public record to suggest that a pollutant or a group of sources has harmful health effects. [00:15:51] Speaker 03: They say that once that information is out there and EPA knows about it, that Congress commanded EPA to act and to list. [00:15:59] Speaker 03: And that's where EPA has a problem with this claim. [00:16:02] Speaker 06: So let's suppose hypothetically the scientific community as a whole had come together and issued a report [00:16:11] Speaker 06: saying we think it's essential that the administrator list these pollutants and regulate these stationary sources. [00:16:23] Speaker 06: As I understand your argument, it would be that plaintiff is still out of court under a citizen suit. [00:16:32] Speaker 03: on the type of claim that the plaintiffs here have alleged, yes, they're out of court. [00:16:37] Speaker 03: And I can explain that with reference to the text of the statute, and also with respect to this court's case law. [00:16:43] Speaker 03: So let me start with the text. [00:16:45] Speaker 03: As Judge Srinivasan pointed out, both Section 108 and Section 111 require the administrator's exercise of judgment before any duty to list. [00:16:53] Speaker 06: So could you file a petition for mandamus? [00:16:56] Speaker 03: I don't believe you could file a petition for mandamus because the exercise of judgment makes it a discretionary action and the only time that mandamus relief is available is when the agency has no discretion. [00:17:07] Speaker 06: So discretion assumes [00:17:10] Speaker 06: Does it assume anything about reasonable action or inaction? [00:17:16] Speaker 03: I believe that mandamus does not. [00:17:17] Speaker 03: Mandamus is only available to compel a ministerial action. [00:17:20] Speaker 03: Clear duty, yeah. [00:17:21] Speaker 03: Right. [00:17:21] Speaker 03: So I think that the relief that you're proposing would be under Section 307. [00:17:27] Speaker 03: If a petition for rulemaking were filed, and EPA had to make an administrative record that the court could review about its reasons for denying that petition, then the situation you're describing, in which there's overwhelming scientific consensus, [00:17:39] Speaker 03: might be a case in which plaintiffs could allege that EPA's exercise of discretion were arbitrary and capricious. [00:17:44] Speaker 03: But here, [00:17:45] Speaker 03: The only available relief is compulsion of the agency to perform the duty that the complaint alleges. [00:17:53] Speaker 03: And here that duty is to list. [00:17:55] Speaker 03: So the plaintiffs want to explain to the district court why the scientific evidence here justifies listing. [00:18:03] Speaker 03: But that puts in the hands of the court a decision about endangerment that the statute specifically leaves to the administrator's judgment under both Section 108 and Section 111. [00:18:14] Speaker 01: So if you take out of the field of vision the complication of having a different party file the unreasonable delay suit from the party that filed the petition for rulemaking, let's just suppose that they're the same party to make it easier. [00:18:29] Speaker 01: appears to be framed as this one is where there's a mandatory duty that's predicated on the exercise of discretion. [00:18:35] Speaker 01: The discretionary exercise hasn't happened yet and the folks who are interested are wanting to know why that's the case. [00:18:44] Speaker 01: They've already filed a petition for rulemaking, no action. [00:18:48] Speaker 01: They then file a citizen suit that says, we don't hurt anything. [00:18:52] Speaker 01: It's getting late in the day. [00:18:54] Speaker 01: Can we get an explanation of why the agency hasn't acted? [00:18:57] Speaker 01: And that suit seems like a proper suit, as far as you're concerned. [00:19:00] Speaker 01: It might be that the EPA has, the agency would have a ton of discretion in explaining why it hasn't taken action yet. [00:19:07] Speaker 01: But the suit would still be able to go forward, thus requiring the agency to come forward with some explanation as to why the action hasn't been taken. [00:19:16] Speaker 03: Yes, assuming they had met the requirements for a section 304 suit, like 180 days notice and things like that, then I think what would happen is the court would have a summary judgment hearing in which EPA could explain why it had exercised discretion not to act yet in the way that it could and would be able to offer reasons why its delay were reasonable. [00:19:36] Speaker 03: Again, that's not the case here. [00:19:39] Speaker 03: This is an allegation of a freestanding duty. [00:19:41] Speaker 03: And this court has decided a case that explains this distinction. [00:19:44] Speaker 03: It's Sierra Club v. Thomas, a 1987 case. [00:19:47] Speaker 03: Now it's true that it's before the 1990 amendments, and the court discussed some things in that case that were relevant only prior to the 1990 amendments. [00:19:54] Speaker 03: But after discussing that question, the court went on to describe different kinds of unreasonable delay cases that might come before the court of appeals. [00:20:02] Speaker 03: One of those was the agency's delay in completing a proceeding that was pending before it. [00:20:07] Speaker 03: That's the situation you were describing of a pending petition for rulemaking. [00:20:11] Speaker 03: Another kind is simply recalcitrance in the face of official duty. [00:20:15] Speaker 03: And the court said it can offer relief in those situations only where there is a clear and unequivocal statutory command that the agency act. [00:20:22] Speaker 06: But then we went on in wild earth [00:20:24] Speaker 06: to give the agency even greater leeway by saying, if the agency says, well, we don't have the staff to do it, and we have decided on different priorities, the court still has no role. [00:20:39] Speaker 03: The court held in Wilder that if the agency offers a reasonable basis for denying a petition for rulemaking, then the court will uphold it, as long as that basis is not arbitrary and capricious. [00:20:48] Speaker 03: But that's actually a very good point. [00:20:50] Speaker 06: No, but it went further. [00:20:51] Speaker 06: That's the thrust of my question. [00:20:54] Speaker 06: In other words, EPA says we're in charge of our agenda, and we have limited staff, and we've chosen to focus elsewhere. [00:21:03] Speaker 03: Yes, EPA explained in denying that petition for rulemaking that it believed it could achieve greater emissions reductions. [00:21:10] Speaker 06: So bottom line is, unless there's a way to get EPA to move on the rulemaking, there is no relief. [00:21:23] Speaker 06: I mean, it's EPA's decision, and Congress said it was. [00:21:27] Speaker 03: That's right. [00:21:28] Speaker 03: Congress gave EPA discretion to make a judgment about whether pollutants or sources endanger health and welfare. [00:21:35] Speaker 03: And there's no mandatory duty to act until EPA exercises that judgment. [00:21:39] Speaker 03: Once EPA makes an endangerment claim, as it has for other kinds of pollutants recently, then regulatory consequences flow from that. [00:21:47] Speaker 03: And those regulatory consequences can be quite burdensome. [00:21:50] Speaker 03: EPA would have to establish [00:21:51] Speaker 03: An ambient air quality standard would have to establish new source performance standards. [00:21:55] Speaker 03: States would have to revise their SIPs. [00:21:57] Speaker 03: Now, that's not to say that there couldn't be a duty arising from these sections, but it does suggest that the court should look for a very clear statement that that's what Congress intended before it will construe Section 304 to allow this kind of claim. [00:22:12] Speaker 03: Unless the court has further questions, I'll take my seat. [00:22:15] Speaker 03: Thank you. [00:22:15] Speaker 05: Council for Appellant. [00:22:25] Speaker 02: Thank you. [00:22:28] Speaker 02: I could not find any cases where [00:22:34] Speaker 02: plaintiff synchronizable delay following a petition for rulemaking was not the party who filed the petition. [00:22:42] Speaker 02: Maybe they're out there, but I couldn't find one. [00:22:44] Speaker 02: So I hope that answers your question as best I can. [00:22:48] Speaker 02: But I don't think that in this case that we're required to file a petition for rulemaking. [00:22:59] Speaker 02: That was the purpose of the amendment [00:23:02] Speaker 02: to the citizen's supervision. [00:23:04] Speaker 02: So a party would not need to file and go through all the procedures of a petition for rulemaking, wait. [00:23:15] Speaker 02: How many years for the EPA not to act and then have to file a suit and get all that litigation. [00:23:23] Speaker 02: The purpose of the amendment was to allow a plaintiff to take action directly when there's a clear violation of a reasonable delay. [00:23:36] Speaker 02: And that's what we have here. [00:23:44] Speaker 02: I wasn't quite sure what Mr. Gutter was saying about summary judgment, but it seems to me that that's what we're [00:23:54] Speaker 02: asking for here, not some judgment necessarily, but for the district court to make fact findings for the plaintiffs to be able to undertake discovery to determine, you know, why there's a delay, what a VPA's position is on the endangerment finding these pollutants and the source, and [00:24:23] Speaker 02: That's what the district court is in the best position to do. [00:24:28] Speaker 05: Anything further? [00:24:31] Speaker 02: What? [00:24:32] Speaker 05: Anything further? [00:24:33] Speaker 02: Yes, thank you. [00:24:35] Speaker 02: The judgment, as Judge Kennedy said in the Center for Biological Diversity case, [00:24:46] Speaker 02: The judgment that is in the statutes is a fact judgment, not a policy judgment. [00:24:55] Speaker 02: And that's why it's appropriate for the district court to make that finding, and it's not the kind of discretion or judgment that would preclude this from being a non-discretionary action. [00:25:10] Speaker 06: Okay, I think you made that point in your opening remarks. [00:25:13] Speaker 06: Anything new? [00:25:17] Speaker 02: I would just finally say that Serco v. Thomas, which is the case that the EPA relies on a lot and the District Court did as well, is a pre-1990 case. [00:25:27] Speaker 02: And if you read it, that is the basis on which the Court made that decision. [00:25:33] Speaker 02: That they were looking at a time-certain deadline [00:25:38] Speaker 02: that being required to have district court jurisdiction. [00:25:40] Speaker 02: If not, it would be in this court, but that's not the case anymore. [00:25:43] Speaker 02: So I think that the 1990 amendment really makes this case appropriate for district court decision. [00:25:51] Speaker 02: Thank you. [00:25:52] Speaker 06: We will take the case under advisement.