Opinion
1:10-CV-985 (FJS)
03-20-2012
CENTER FOR BIOLOGICAL DIVERSITY, CENTER FOR FOOD SAFETY, FRIENDS OF THE EARTH, INTERNATIONAL CENTER FOR TECHNOLOGY ASSESSMENT, and OCEANA, Plaintiffs, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and LISA JACKSON, Defendants.
EARTHJUSTICE Oakland, California 94612 Attorneys for Plaintiffs U.S. DEPARTMENT OF JUSTICE Environmental Defense Section Washington, D.C. 20004 Attorneys for Defendants
APPEARANCES
WESTERN ENVIRONMENTAL LAW CENTER
1216 Lincoln Street
Eugene, Oregon 97401
Attorneys for Plaintiffs
OF COUNSEL
DANIEL GALPERN, ESQ.
EARTHJUSTICE
Oakland, California 94612
Attorneys for Plaintiffs
J. MARTIN WAGNER, ESQ.
SARAH HELEN BURT, ESQ.
U.S. DEPARTMENT OF JUSTICE
Environmental Defense Section
Washington, D.C. 20004
Attorneys for Defendants
ANGELINE PURDY, ESQ.
SCULLIN, Senior Judge
ORDER
Plaintiffs Center for Biological Diversity, Center for Food Safety, Friends of the Earth, International Center for Technology Assessment, and Oceana (collectively, "Plaintiffs") seek to compel Defendants U.S. Environmental Protection Agency and its Administrator, Lisa Jackson (together, "Defendant EPA"), to respond to three rulemaking petitions regarding the regulation of emissions from marine vessels, aircraft, and other non-road engines and vehicles under the Clean Air Act, 42 U.S.C. § 7401 et seq. ("CAA"). See generally Dkt. No. 1, Complaint. Between October 2007, and January 2008, Plaintiffs submitted three petitions to Defendant EPA, asking it to use its authority to regulate greenhouse gas emissions from marine vessels, aircraft, and other non-road vehicles. See id. at ¶¶ 48-50.
Plaintiffs' complaint sets forth the following four claims against Defendant EPA: (1) for violations of the CAA for unreasonably delaying in responding to Plaintiffs' three rulemaking petitions under 42 U.S.C. § 7604(a); (2) for violations of section 213(a) of the CAA, 42 U.S.C. § 7547(a)(4), for failure to determine whether emissions of greenhouse gases and black carbon from marine vessels and engines cause or contribute to dangerous air pollution; (3) for violations of section 213(a) of the CAA, 42 U.S.C. § 7547(a)(4), for failure to determine whether emissions of greenhouse gases and black carbon from non-road vehicles and engines cause or contribute to dangerous air pollution; and (4) for violations of section 231(a)(2)(A) of the CAA, 42 U.S.C. § 7571(a)(2)(A), for failure to determine whether emissions of greenhouse gases and black carbon from aircraft engines cause or contribute to dangerous air pollution. See generally Complaint.
On August 20, 2010, Defendant EPA filed a motion to dismiss counts two, three, and four of Plaintiffs' complaint. See Dkt. No. 9. In a Memorandum Opinion and Order dated July 5, 2011, the Court (Kennedy, J.) granted that motion as to claims two and three but denied it as to claim four. See Dkt. No. 25. Currently before the Court are the parties' cross-motions for summary judgment with regard to Plaintiffs' remaining claims. The Court heard oral argument regarding these motions on March 14, 2012.
Having carefully reviewed the entire record in this matter, the parties' submissions and oral arguments, as well as the applicable law, and for the reasons stated at oral argument, the Court hereby
ORDERS that the parties' cross-motions for summary judgment are DENIED as moot with regard to Plaintiffs' first claim because Defendant EPA has agreed in both its motion papers and during oral argument that it will respond to Plaintiffs' three outstanding rulemaking petitions within ninety days of the date of this Order; and Defendant EPA is hereby ORDERED to do the same; and the Court further
ORDERS that Defendant EPA's motion for summary judgment is GRANTED and Plaintiffs' motion for summary judgment is DENIED with regard to Plaintiffs' fourth claim because Plaintiffs have not shown that Defendant EPA has unreasonably delayed in determining whether aircraft engine emissions cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare; and the Court further
The Court reminds Defendant EPA that the degree to which it is entitled deference and discretion is neither unlimited nor unchecked; and, although the Court finds that Defendant EPA has not yet unreasonably delayed in making an endangerment determination under section 231 of the CAA regarding emissions from aircraft engines, such a finding does not entitle Defendant EPA to delay unduly in taking the appropriate agency action.
ORDERS that Plaintiffs' counsel shall initiate a telephone conference, using a professional telephone conferencing service, with the Court and opposing counsel on Tuesday, June 26, 2012, at 9:30 a.m.
IT IS SO ORDERED.
Dated: March 20, 2012
Syracuse, New York
_________________
Frederick J. Scullin, Jr.
Senior United States District Court Judge