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Sierra Club & Valley Watch, Inc. v. Jackson

United States Court of Appeals for the District of Columbia Circuit

April 7, 2011, Argued; July 1, 2011, Decided

No. 10-5280


 [*850]  [**299]   Opinion for the Court filed by Chief Judge Sentelle.

Sentelle, Chief Judge: Appellants, nonprofit environmentalist organizations, appeal from a judgment of dismissal entered by the district court in an action against the United States Environmental Protection Agency ("EPA")  [***2] under the citizen suit provision of the Clean Air Act, challenging the Administrator's failure to take action to prevent the construction of three proposed pollution-emitting facilities in Kentucky. The district court held that there was no mandatory duty to act and granted the EPA's motion to dismiss for lack of subject matter jurisdiction. The nonprofits brought the present appeal. We affirm the dismissal on different grounds.

 [*851]   [**300]  I.

] The Clean Air Act ("the Act"), 42 U.S.C. §§ 7401 et seq., creates a complex regulatory regime designed "to protect and enhance the quality of the Nation's air resources." § 7401(b)(1). As part of that regime, the Act empowers the Administrator of the EPA to establish National Ambient Air Quality Standards ("NAAQS"), setting allowable concentrations of air pollutants determined by the Administrator to meet statutorily defined criteria. §§ 7408-09. In furtherance of the attainment of the National Ambient Air Quality Standards, the Act requires each state to develop a State Implementation Plan ("SIP") by which the state will achieve, maintain, and enforce those standards. § 7410. The Administrator is to designate areas of a state meeting the applicable ambient  [***3] air quality standard as "attainment" areas. § 7407(d)(1)(A)(ii). The Act further requires states to prevent "significant deterioration" of air quality in attainment areas. §§ 7470 et seq. In furtherance of this goal, the Act requires, inter alia, that no major emitting facility may be constructed in an attainment area without a permit meeting the requirements of the Act. § 7475. Section 7477, entitled "Enforcement," states that "[t]he Administrator shall, and a State may, take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction or modification of a major emitting facility . . . proposed to be constructed" in an attainment area. The present controversy involves three major emitting facilities proposed to be built in attainment areas in Kentucky.

The three projects underlying this litigation are the East Kentucky Power Cooperative's J.K. Smith Generating Station coal-fired CFB Boiler Project ("Smith"), Conoco Phillips and Peabody's Kentucky NewGas Synthetic Natural Gas Production plant ("NewGas"), and Cash Creek Generation LLC's coal-fired Cash Creek Generating Station ("Cash Creek"). Because each facility qualifies  [***4] as a "major emitting facility," see § 7479(1), and because each is proposed to be built in a county designated as an attainment area, all three facilities are required to obtain permits from the State of Kentucky. § 7475(a). The permits are part of the statutory Prevention of Significant Deterioration ("PSD") program implementing the requirements of § 7475(a).

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648 F.3d 848 *; 396 U.S. App. D.C. 297 **; 2011 U.S. App. LEXIS 13391 ***; 41 ELR 20224; 72 ERC (BNA) 2153


Prior History:  [***1] Appeal from the United States District Court for the District of Columbia. (No. 1:09-cv-02089).

Sierra Club v. Jackson, 724 F. Supp. 2d 33, 2010 U.S. Dist. LEXIS 72641 (D.D.C., 2010)


Air, agency's action, district court, attainment, facilities, moot, agency discretion, judicial review, mandatory, permits, subject matter jurisdiction, emitting, implementation plan, discretionary, contends, argues, ozone

Business & Corporate Compliance, Environmental Law, Air Quality, National Ambient Air Quality Standards, Environmental Law, Preconstruction Permits, State Implementation Plans, Enforcement, Civil Actions, Citizen Suits, Civil Procedure, Justiciability, Case & Controversy Requirements, Actual Controversy, Mootness, Real Controversy Requirement, Administrative Law, Judicial Review, Reviewability, Jurisdiction & Venue, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Preclusion, Governments, Courts, Judicial Precedent, Reviewable Agency Action, Standards of Review, De Novo Standard of Review, Dismissal, Involuntary Dismissals, Appellate Review, Evidence, Inferences & Presumptions, Presumptions, Legislation, Interpretation