Case 3:20-cv-05436-EMC Document 1 Filed 08/06/20 Page 1 of 12
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`Jonathan Evans (Cal. Bar #247376)
`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Phone: 510-844-7118
`Fax: 510-844-7150
`Email: jevans@biologicaldiversity.org
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`Attorney for Plaintiffs Center for Biological
`Diversity, Center for Environmental Health, and
`Sierra Club
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`Civil Action No. ______________
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`COMPLAINT FOR
`DECLARATORY AND INJUNCTIVE
`RELIEF
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`(Clean Air Act, 42 U.S.C. §§ 7401 et. seq.)
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`CENTER FOR BIOLOGICAL DIVERSITY,
`CENTER FOR ENVIRONMENTAL
`HEALTH, and SIERRA CLUB,
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`Plaintiffs,
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`v.
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`ANDREW R. WHEELER,
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`in his official capacity as Administrator,
`United States Environmental Protection
`Agency,
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` Defendant.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:20-cv-05436-EMC Document 1 Filed 08/06/20 Page 2 of 12
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`1.
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`INTRODUCTION
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`All areas of the country are legally entitled to healthy, clean air. Not all areas have it.
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`This is a Clean Air Act “deadline” suit against Andrew R. Wheeler, Administrator of the United
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`States Environmental Protection Agency (EPA), for his failure to protect people, ecosystems,
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`and wildlife from dangerous exposure to sulfur oxides (SOx) air pollution.
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`2.
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`SOx, which is formed primarily from the combustion of fuel with sulfur, such as coal and
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`diesel, harms human health and the environment. Even short-term exposure to SOx has
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`significant health impacts, including decrements in lung function, aggravation of asthma, and
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`respiratory and cardiovascular morbidity. SOx also contributes to the formation of acid rain,
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`which damages trees, crops, historic buildings, and monuments, and alters the acidity of both
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`soils and water bodies.
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`3.
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`The Clean Air Act requires EPA to establish health- and welfare-protective National
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`Ambient Air Quality Standards (NAAQS) to limit the amount of SOx in the outdoor air. Areas
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`with SOx pollution levels that exceed the standards must clean up their air.
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`4.
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`To better protect the public from SOx, the EPA promulgated a sulfur dioxide (SO2)
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`NAAQS in 2010. In response to the 2010 NAAQS, EPA designated the following areas as
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`nonattainment, meaning that the air quality in these areas has SO2 pollution that violates the
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`standard: Piti-Cabras, Guam; Huntington, Indiana; Evangeline Parish (partial), Louisiana; and
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`Guayama-Salinas and San Juan, Puerto Rico. More than half a million people live and work in
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`these areas with air pollution that exceeds the SO2 NAAQS. The congressionally mandated
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`deadline has passed for all of these states and territories to submit to EPA plans, called State
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`Implementation Plans (SIPs), to clean up the SOx pollution in their nonattainment areas.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:20-cv-05436-EMC Document 1 Filed 08/06/20 Page 3 of 12
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`5.
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`EPA has a mandatory duty to make a finding that a state has failed to submit a SIP to
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`reduce air pollution within six months after a SIP submittal is due. 42 U.S.C. § 7410(k)(1)(B).
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`This deadline has passed as well. Yet EPA has not published the required findings. EPA’s
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`failure to meet the deadline that Congress prescribed violates the Clean Air Act.
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`JURISDICTION AND NOTICE
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`6.
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`This case is a Clean Air Act “citizen suit.” Therefore, the Court has jurisdiction over this
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`action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 42 U.S.C. § 7604(a)
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`(Clean Air Act citizen suits).
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`7.
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`This case does not concern federal taxes, is not a proceeding under 11 U.S.C. § 505 or
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`1146 of Title 11, and does not involve the Tariff Act of 1930. Thus, this Court has jurisdiction to
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`order declaratory relief under 28 U.S.C. § 2201. If the Court orders declaratory relief, 28 U.S.C.
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`§ 2202 authorizes this Court to issue injunctive relief.
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`8.
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`Plaintiffs mailed to EPA by certified mail, return receipt requested, written notice of
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`intent to sue regarding the violations alleged in this Complaint. The notice letter was postmarked
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`May 28, 2020. EPA received it no later than June 5, 2020. More than 60 days have passed since
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`Plaintiffs mailed the notice letter. EPA has not remedied the violations alleged in this
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`Complaint. Therefore, a present and actual controversy exists between the parties.
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`VENUE
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`9.
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`Venue is proper in this Court under 28 U.S.C. § 1391(e) for several reasons. First,
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`Plaintiffs Center for Environmental Health and Sierra Club reside in the district with their
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`headquarters in Oakland. Second, Defendant EPA resides and performs its official duties in this
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`district. Third, a substantial part of the events or omissions giving rise to the claims in this case
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`occurred in the Northern District of California. One of the claims in this Complaint concerns
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:20-cv-05436-EMC Document 1 Filed 08/06/20 Page 4 of 12
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`EPA’s failure to perform mandatory duties related to Guam. EPA Region 9, which is
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`responsible for Guam, is headquartered in San Francisco. Thus, a substantial part of the events
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`and omissions at issue in this action occurred at EPA’s Region 9 headquarters in San Francisco.
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`10.
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`Pursuant to Civil L.R. 3-2(c), (d), this case is properly assigned to the San Francisco or
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`Oakland Division of this Court because a substantial part of the events and omissions giving rise
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`to the claims in this case occurred in the County of San Francisco.
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`PARTIES
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`11.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY is a non-profit 501(c)(3)
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`corporation incorporated and existing under the laws of the State of California, with its main
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`California office in Oakland. The Center for Biological Diversity has approximately 74,000
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`members throughout the United States and the world. The Center for Biological Diversity’s
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`mission is to ensure the preservation, protection, and restoration of biodiversity, native species,
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`ecosystems, public lands and waters, and public health through science, policy, and
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`environmental law. Based on the understanding that the health and vigor of human societies and
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`the integrity and wildness of the natural environment are closely linked, the Center for Biological
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`Diversity is working to secure a future for animals and plants hovering on the brink of extinction,
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`for the ecosystems they need to survive, and for a healthy, livable future for all of us.
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`12.
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`Plaintiff CENTER FOR ENVIRONMENTAL HEALTH is a nonprofit corporation
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`organized and existing under the laws of the State of California, with its headquarters located in
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`Oakland. The Center for Environmental Health protects the public from toxic chemicals by
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`working with communities, consumers, workers, government, and the private sector to demand
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`and support business practices that are safe for public health and the environment. The Center
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`for Environmental Health works in pursuit of a world in which all people live, work, learn, and
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`play in healthy environments.
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`13.
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`Plaintiff SIERRA CLUB is a nonprofit corporation organized and existing under the laws
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`of the State of California, with its headquarters located in Oakland. Sierra Club is the oldest and
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`largest grassroots environmental organization in the United States, with more than 795,000
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`members nationally. Sierra Club’s mission is to explore, enjoy, and protect the wild places of
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`the Earth; to practice and promote the responsible use of the Earth’s resources and ecosystems;
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`to educate and enlist humanity to protect and restore the quality of the natural and human
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`environment; and to use all lawful means to carry out these objectives. Sierra Club performs this
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`mission through advocacy, litigation, and educational outreach to its members and state chapters.
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`Sierra Club and its members are greatly concerned about the effects of air pollution on human
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`health and the environment and have a long history of involvement in activities related to air
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`quality.
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`14.
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`Plaintiffs’ members live, work, recreate, travel, and engage in other activities throughout
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`the areas at issue in this complaint and will continue to do so on a regular basis. Pollution in the
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`affected areas threatens and damages, and will continue to threaten and damage, the health and
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`welfare of Plaintiffs’ members, as well as their ability to engage in and enjoy their other
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`activities. Pollution diminishes Plaintiffs’ members’ ability to enjoy the aesthetic qualities and
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`recreational opportunities of the affected areas.
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`15.
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`The acts and omissions of EPA alleged here harm Plaintiffs’ members by prolonging
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`poor air quality conditions that adversely affect or threaten their health, and by nullifying or
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`delaying measures and procedures mandated by the Act to protect their health from SOx
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`pollution in places where they live, work, travel, and recreate.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:20-cv-05436-EMC Document 1 Filed 08/06/20 Page 6 of 12
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`16.
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`The acts and omissions of EPA alleged here further harm Plaintiffs’ members’ welfare
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`interest in using and enjoying the natural environment. Elevated levels of SOx damage plant life,
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`aquatic life, and natural ecosystems, thus harming Plaintiffs’ members’ recreational and aesthetic
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`interests.
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`17.
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`EPA’s failure to timely perform the mandatory duties described herein also adversely
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`affects Plaintiffs, as well as their members, by depriving them of procedural protection and
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`opportunities, as well as information that they are entitled to under the Clean Air Act.
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`18.
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`The above injuries will continue until the Court grants the relief requested herein. A
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`court order requiring EPA to promptly undertake its mandatory duties would redress Plaintiffs’
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`and Plaintiffs’ members’ injuries.
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`19.
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`Defendant ANDREW R. WHEELER is the Administrator of the EPA. Administrator
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`Wheeler is charged with the duty to uphold the Clean Air Act and to take required regulatory
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`actions according to the schedules established by the Act, including the mandatory duties at issue
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`in this case. Administrator Wheeler is sued in his official capacity.
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`FACTUAL BACKGROUND: SULFUR DIOXIDE
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`20.
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`Sulfur pollution consists of sulfur oxide (SOx) gases. Of the SOx gases, sulfur dioxide
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`(SO2) is the most common. See Sulfur Dioxide Pollution: Sulfur Dioxide Basics, EPA,
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`https://www.epa.gov/so2-pollution/sulfur-dioxide-basics#effects (last visited August 5, 2020).
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`The largest source of SO2 originates from the combustion of fossil fuels containing sulfur by
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`power plants and other industrial facilities. Id. SO2 is also produced during certain industrial
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`processes, such as extracting metal from ore and in some oil refining processes, and by ships and
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`other vehicles and heavy equipment that burn fuel with a high sulfur content. Id.; Primary
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`NAAQS for Sulfur Dioxide, 75 Fed. Reg. 35,520, 35,524 (June 22, 2010).
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`21.
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`Human health can be dangerously impacted by SOx emissions in as little as five minutes.
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`Primary NAAQS for Sulfur Dioxide, 75 Fed. Reg. at 35,525. SOx pollution contributes to
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`respiratory problems by impacting lung function and aggravating asthma, particularly for
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`children and the elderly. Id. at 35,525-29. SOx emissions can also aggravate existing heart and
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`lung diseases, and cause respiratory and cardiovascular morbidity. Id.
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`22.
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`SOx emissions also impact the environment. Acute and chronic exposures to SOx lead to
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`foliar injury, decreased photosynthesis, and decreased vegetation growth. Secondary NAAQS
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`for Oxides of Nitrogen and Sulfur, 77 Fed. Reg. 20,218, 20,224 (Apr. 3, 2012). In addition,
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`because SOx emissions may be transmitted long distances, they contribute to visibility
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`impairment problems in many national parks and wilderness areas. See Sulfur Dioxide
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`Pollution: Sulfur Dioxide Basics, EPA, https://www.epa.gov/so2-pollution/sulfur-dioxide-
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`basics#effects (last visited August 5, 2020). Furthermore, SOx emissions have the potential to
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`negatively affect endangered species. See Secondary NAAQS for Oxides of Nitrogen and
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`Sulfur, 77 Fed. Reg. at 20,234. Finally, SOx emissions contribute to the formation of acid rain,
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`which in turn impacts both the human and natural environment. Sulfur Dioxide Pollution: Sulfur
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`Dioxide Basics, EPA, https://www.epa.gov/so2-pollution/sulfur-dioxide-basics#effects (last
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`visited August 5, 2020). For example, acid rain damages trees, crops, historic buildings, and
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`monuments, and alters the acidity of both soils and water bodies. Effects of Acid Rain, EPA,
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`https://www.epa.gov/acidrain/effects-acid-rain (last visited August 5, 2020).
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`23.
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`SOx can also react with other compounds in the atmosphere to form small particles,
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`which contribute to particulate matter (PM) pollution. Secondary NAAQS for Oxides of
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`Nitrogen and Sulfur, 77 Fed. Reg. at 20,222. PM can penetrate deeply into the lungs and can
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`contribute to health problems and death. See Sulfur Dioxide Pollution: Sulfur Dioxide Basics,
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`EPA, https://www.epa.gov/so2-pollution/sulfur-dioxide-basics#effects (last visited August 5,
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`2020). SOx also facilitates mercury methylation, which results in a form of mercury that is
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`especially dangerous to humans and wildlife. EPA, Integrated Science Assessment for Oxides of
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`Nitrogen and Sulfur – Ecological Criteria, Executive Summary at 12 (2008), available at
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`https://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=201485.
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`STATUTORY AND REGULATORY BACKGROUND
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`24.
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`Congress enacted the Clean Air Act “to protect and enhance the quality of the Nation’s
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`air resources so as to promote the public health and welfare and the productive capacity of its
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`population.” 42 U.S.C. § 7401(b)(1). In so enacting, Congress wanted to “speed up, expand, and
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`intensify the war against air pollution in the United States with a view to assuring that the air we
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`breathe throughout the Nation is wholesome once again.” H.R. Rep. No. 1146, 91st Cong., 2d Sess.
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`1,1, 1970 U.S. Code Cong. & Admin. News 5356, 5356 (emphasis added).
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`25.
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`Central to the Act is the requirement that EPA establish national ambient air quality
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`standards (NAAQS) for certain widespread air pollutants that endanger public health and
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`welfare, referred to as “criteria pollutants.” 42 U.S.C. §§ 7408-7409. One criteria pollutant is
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`sulfur dioxide. See 40 C.F.R. §§ 50.4, 50.5, 50.17.
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`26.
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`The NAAQS establish allowable concentrations of criteria pollutants in ambient air, i.e.
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`outdoor air. Primary standards must be stringent enough to protect public health. 42 U.S.C.
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`§ 7409(b)(1). Secondary standards must be stringent enough to protect public welfare, including,
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`but not limited to, effects on soils, water, vegetation, manmade materials, wildlife, visibility (i.e.,
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`haze), climate, damage to property, economic impacts, and effects on personal comfort and well-
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`being. Id. §§ 7409(b)(2), 7602(h).
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`27.
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`After EPA sets or revises a standard, the Clean Air Act requires EPA to take steps to
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`implement the standard. Within two years of revising a standard, EPA must “designate” areas as
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`not meeting the standard, known as “nonattainment,” or meeting the standard, known as
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`“attainment.” 42 U.S.C. § 7407(d)(1)(A)-(B).
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`28.
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`For each area designated nonattainment, states must develop a plan to attain the NAAQS.
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`These plans, which must be submitted to EPA, are called State Implementation Plans (SIPs). See
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`42 U.S.C. §§ 7410(a)(2)(I), 7501 – 7509a, 7514 – 7514a. Under the Clean Air Act, the term
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`“State” includes Guam and Puerto Rico. 42 U.S.C. § 7602(d).
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`29.
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`EPA is required to determine whether a SIP submittal is administratively complete. 42
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`U.S.C. § 7410(k)(1)(B). If, six months after a submittal is due, a state has not complied by
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`providing the required documentation, there is no submittal that can be deemed administratively
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`complete, and EPA must make a determination stating that the state failed to submit the required
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`state implementation plan. Id. This determination is referred to as a “finding of failure to
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`submit.”
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`30.
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`A finding of failure to submit is critical because it triggers a two-year clock for EPA to
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`step into the void left by the state’s failure to submit a SIP by promulgating a federal
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`implementation plan (FIP) to reduce SOx levels to below the NAAQS. 42 U.S.C. § 7410(c).
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`FACTUAL BACKGROUND: FINDINGS OF FAILURE TO SUBMIT
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`31.
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`SO2 is the pollutant that EPA has used as a surrogate parameter for regulation of all SOx
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`emissions since first promulgating a NAAQS for SO2 in 1971. See Nat’l Primary and Secondary
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`Ambient Air Quality Standards, 36 Fed. Reg. 8,186 (Apr. 30, 1971). Effective August 23, 2010,
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`EPA revised the primary SO2 NAAQS. Primary NAAQS for Sulfur Dioxide, 75 Fed. Reg. at
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`35,520. EPA estimated that 2,300 to 5,900 premature deaths and 54,000 asthma attacks a year
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`will be prevented by the 2010 SO2 NAAQS. EPA, Final Regulatory Impact Analysis for the SO2
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`NAAQS, at 5-35 (2010), available at https://www3.epa.gov/ttn/ecas/docs/ria/naaqs-
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`so2_ria_final_2010-06.pdf. However, these lives can only be saved and adverse health avoided
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`if EPA actually implements the 2010 SO2 NAAQS. EPA is in violation of its mandatory duty to
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`issue a finding of failure to submit nonattainment SIPs for the nonattainment areas listed in Table
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`1 below.
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`a.
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`AREA & ELEMENT(S)
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`TABLE 1
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`SUBMITTAL
`DEADLINE
`(No later than)
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`DEADLINE FOR
`FINDING OF
`FAILURE TO
`SUBMIT
`(No later than)
`4/9/2020
`
`10/9/2019
`
`10/9/2019
`
`4/9/2020
`
`10/9/2019
`
`4/9/2020
`
`10/9/2019
`
`4/9/2020
`
`10/9/2019
`
`4/9/2020
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`b. Piti-Cabras, Guam: Attainment
`Demonstration, Contingency
`Measures, Emission Inventories,
`Nonattainment New Source Review
`(NSR), Reasonably Available Control
`Measure/Reasonably Available
`Control Technology (RACM/RACT),
`Reasonable Further Progress (RFP)
`c. Huntington, IN: Attainment
`Demonstration, Contingency
`Measures, Emission Inventories,
`Nonattainment NSR, RACM/RACT,
`RFP
`d. Evangeline Parish, (Partial), LA:
`Attainment Demonstration,
`Contingency Measures, Emission
`Inventories, Nonattainment NSR,
`RACM/RACT, RFP
`e. Guayama-Salinas, Puerto Rico:
`Attainment Demonstration,
`Contingency Measures, Emission
`Inventories, Nonattainment NSR,
`RACM/RACT, RFP
`f. San Juan, Puerto Rico: Attainment
`Demonstration, Contingency
`Measures, Emission Inventories,
`Nonattainment NSR, RACM/RACT,
`RFP
`
`
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`
`
`10
`
`
`
`

`

`Case 3:20-cv-05436-EMC Document 1 Filed 08/06/20 Page 11 of 12
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`
`
`CLAIM ONE
`
`(Failure to make Finding of Failure to Submit)
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`Plaintiffs incorporate by reference all paragraphs listed above.
`
`Effective April 9, 2018, EPA designated the following areas nonattainment for the 2010
`
`
`
`32.
`
`33.
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`primary SO2 NAAQS: Piti-Cabras, Guam; Huntington, Indiana; Evangeline Parish (partial),
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`Louisiana; and Guayama-Salinas and San Juan, Puerto Rico. Air Quality Designations for the
`
`2010 Sulfur Dioxide (SO2) Primary NAAQS – Round 3, 83 Fed. Reg. 1,098, 1,171-72, 1,122,
`
`1,130 (Jan. 9, 2018). These states and territories were required to submit a SIP to EPA for their
`
`nonattainment areas by October 9, 2019. Id. at 1,100.
`
`34.
`
`The states and territories listed in Table 1 above have not submitted nonattainment SIP
`
`elements for the nonattainment areas listed in Table 1 above. See Nat’l Designated Area
`
`Reports, EPA, https://www3.epa.gov/airquality/urbanair/sipstatus/reports/so2__2010_en.html
`
`(last visited June 23, 2020).
`
`35.
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`36.
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`It is more than six months after these nonattainment SIP submittals were due.
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`EPA had a mandatory duty to make findings of failure to submit for nonattainment SIP
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`elements for the nonattainment areas listed in Table 1 by the dates listed in Table 1.
`
`37.
`
`Yet, EPA has not issued findings of failure to submit for the nonattainment SIP elements
`
`in the nonattainment areas listed in Table 1 above.
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`38.
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`Therefore, EPA is in violation of its mandatory duty to issue findings of failure to submit
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`pursuant to 42 U.S.C. § 7410(k)(1)(B).
`
`
`Plaintiffs respectfully request that the Court:
`
`RELIEF REQUESTED
`
`(A) Declare that the Administrator is in violation of the Clean Air Act with regard to his
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`failure to perform each mandatory duty listed above;
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
`
`
`
`11
`
`
`
`

`

`Case 3:20-cv-05436-EMC Document 1 Filed 08/06/20 Page 12 of 12
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`
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`(B) Issue a mandatory injunction requiring the Administrator to perform his mandatory duties
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`by certain dates;
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`(C) Retain jurisdiction of this matter for purposes of enforcing and effectuating the Court’s
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`order;
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`(D) Grant Plaintiffs their reasonable costs of litigation, including attorneys’ and expert fees;
`
`and
`
`(E) Grant such further relief as the Court deems just and proper.
`
`
`
`
`
`
`
`
`
`Respectfully Submitted,
`
`
`
`/s/ Jonathan Evans
`
`
`Jonathan Evans (Cal. Bar #247376)
`CENTER FOR BIOLOGICAL DIVERSITY
`1212 Broadway, Suite 800
`Oakland, CA 94612
`Tel: 510-844-7118
`Fax: 510-844-7150
`Email: jevans@biologicaldiversity.org
`
`
`
`
`
`
`
`
`
`Counsel for Plaintiffs Center for Biological
`Diversity, Center for Environmental Health, and
`Sierra Club
`
`
`
`
`
`
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`
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`
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`
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`
`
`DATED:
`
`
`August 6, 2020
`
`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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