Case 3:22-cv-04191-TSH Document 1 Filed 07/19/22 Page 1 of 9
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`BRENT J. NEWELL (State Bar No. 210312)
`LAW OFFICES OF BRENT J. NEWELL
`245 Kentucky Street, Suite A4
`Petaluma, CA 94952
`Tel: (661) 586-3724
`brentjnewell@outlook.com
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`Attorney for Plaintiff
`Center for Community Action
`and Environmental Justice
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`CENTER FOR COMMUNITY ACTION AND
`ENVIRONMENTAL JUSTICE, a nonprofit
`corporation,
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`Plaintiff,
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`v.
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`UNITED STATES ENVIRONMENTAL
`PROTECTION AGENCY, MICHAEL
`REGAN, in his official capacity as
`Administrator of the United States
`Environmental Protection Agency, and
`MARTHA GUZMAN, in her official capacity
`as Regional Administrator for Region 9 of the
`United States Environmental Protection
`Agency,
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`Defendants.
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`Case No.
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`COMPLAINT FOR INJUNCTIVE AND
`DECLARATORY RELIEF
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`COMPLAINT
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`Case 3:22-cv-04191-TSH Document 1 Filed 07/19/22 Page 2 of 9
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`INTRODUCTION
`Plaintiff Center for Community Action and Environmental Justice (“CCAEJ”) files this
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`Clean Air Act citizen suit to compel Defendants United States Environmental Protection Agency
`(“EPA”), Michael Regan, and Martha Guzman to approve, disapprove, or partially approve/disapprove
`the Innovative Clean Transit regulation (“ICT regulation”).
`Fine particulate matter (“PM2.5”) and ozone air pollution in the South Coast air basin has
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`caused, and continues to cause, a public health crisis. According to the American Lung Association’s
`State of the Air 2022 report, counties in the South Coast Air Basin rank among the worst in the United
`States for ozone and PM2.5. San Bernardino, Riverside, and Los Angeles counties are the first, second,
`and third most ozone-polluted counties in the United States, respectively. For long-term exposure to
`PM2.5, San Bernardino, Riverside, and Los Angeles counties rank as the ninth, eleventh, and sixteenth
`most polluted counties in the United States, respectively.
`The Clean Air Act is a model of cooperative federalism, whereby the EPA sets health-
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`based National Ambient Air Quality Standards (“NAAQS” or “standards”) and the states develop the
`plans and strategies to achieve those standards. States submit their plans and strategies to EPA for
`review and approval. EPA shall approve a submission if it meets the Act’s minimum requirements. EPA
`and citizens may enforce the EPA-approved State Implementation Plan as a matter of federal law to hold
`states and regulated entities accountable.
`The California Air Resources Board (“Board”) adopted the ICT regulation as part of
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`California’s strategy to reduce PM2.5 and ozone-forming air pollution, and the Board submitted the ICT
`regulation to the EPA for review and approval as part of the State Implementation Plan.
`EPA’s review and approval of the ICT regulation, with public notice and opportunity to
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`comment, ensures that the ICT regulation meets minimum Clean Air Act requirements, including but not
`limited to ensuring the regulation is enforceable by citizens and the EPA.
`To date, EPA has failed to take final action on the ICT regulation. §
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`JURISDICTION
`This Court has jurisdiction over this action to compel the performance of a
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`COMPLAINT
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`Case 3:22-cv-04191-TSH Document 1 Filed 07/19/22 Page 3 of 9
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`nondiscretionary duty pursuant to 42 U.S.C. § 7604(a)(2) (citizen suit provision of the Clean Air Act)
`and 28 U.S.C. § 1331 (federal question jurisdiction).
`The declaratory and injunctive relief CCAEJ requests is authorized by 28 U.S.C. §§
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`2801(a) and 2202, and 42 U.S.C. § 7604.
`On May 16, 2022, CCAEJ provided EPA, Regan, and Guzman written notice of the
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`claims stated in this action at least 60 days before commencing this action, as required by Clean Air Act
`section 304(b)(2), 42 U.S.C. § 7604(b)(2) and 40 C.F.R. §§ 54.2 and 54.3. A copy of the notice letter,
`sent by certified mail, return receipt requested, is attached as Exhibit 1. Although more than 60 days
`have elapsed since CCAEJ provided written notice, EPA has failed to take action and remains in
`violation of the Clean Air Act.
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`VENUE
`Venue lies in the Northern District of California pursuant to 28 U.S.C. § 1391(e)(1),
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`because the Regional Administrator for Region 9 is located in San Francisco County and because EPA’s
`alleged violations relate to the duties of the Regional Administrator in San Francisco.
`INTRADISTRICT ASSIGNMENT
`Because the failure to perform a nondiscretionary duty alleged in this Complaint relates
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`to the duties of the Regional Administrator located in San Francisco County, assignment to the San
`Francisco Division of this Court is proper under Civil L.R. 3-2(c) and (d).
`PARTIES
`Plaintiff CENTER FOR COMMUNITY ACTION AND ENVIRONMENTAL JUSTICE
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`is a progressive, base-building, non-profit corporation that brings communities together to find
`opportunities for cooperation, agreement, and problem solving to improve their social and natural
`environment. CCAEJ uses the lens of environmental health to achieve social change, and works within
`communities to develop and sustain democratically based, participatory decision-making that promotes
`the involvement of a diverse segment of the community in ways that empower communities. CCAEJ
`prioritizes air quality and water quality advocacy to secure environmental justice and improve public
`health and welfare in the Inland Empire and South Coast Air Basin. Members of CENTER FOR
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`Case 3:22-cv-04191-TSH Document 1 Filed 07/19/22 Page 4 of 9
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`COMMUNITY ACTION AND ENVIRONMENTAL JUSTICE reside in Riverside and San Bernardino
`counties and in the South Coast Air Basin.
`Plaintiff CENTER FOR COMMUNITY ACTION AND ENVIRONMENTAL JUSTICE
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`is a person within the meaning of section 302(e) of the Clean Air Act, 42 U.S.C. § 7602(e), and may
`commence a civil action under section 304(a) of the Act, 42 U.S.C. § 7604(a).
`14. Members of CENTER FOR COMMUNITY ACTION AND ENVIRONMENTAL
`JUSTICE live, raise their families, work, and recreate in Riverside and San Bernardino counties and the
`South Coast Air Basin. They are adversely affected by exposure to levels of PM2.5 and ozone air
`pollution that exceed the health-based National Ambient Air Quality Standards. The adverse effects of
`such pollution include actual or threatened harm to their health, their families’ health, their professional,
`educational, and economic interests, and their aesthetic and recreational enjoyment of the environment
`in the Inland Empire and South Coast Air Basin.
`The Clean Air Act violation alleged in this Complaint also deprives CENTER FOR
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`COMMUNITY ACTION AND ENVIRONMENTAL JUSTICE members of certain procedural rights
`associated with EPA’s required action on the ICT regulation, including notice of, and opportunity to
`comment on, EPA’s action and the capacity to enforce the ICT regulation.
`The Clean Air Act violation alleged in this Complaint has injured and continues to injure
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`CENTER FOR COMMUNITY ACTION AND ENVIRONMENTAL JUSTICE members. Granting the
`relief requested in this lawsuit would redress these injuries by compelling EPA action that Congress
`required as an integral part of the regulatory scheme for improving air quality in areas violating the
`National Ambient Air Quality Standards.
`Defendant UNITED STATES ENVIRONMENTAL PROTECTION AGENCY is the
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`federal agency Congress charged with implementation and enforcement of the Clean Air Act. As
`described below, the Act assigns to the UNITED STATES ENVIRONMENTAL PROTECTION
`AGENCY certain nondiscretionary duties.
`Defendant MICHAEL REGAN is sued in his official capacity as Administrator of the
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`United States Environmental Protection Agency. He is charged in that role with taking various actions to
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`COMPLAINT
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`Case 3:22-cv-04191-TSH Document 1 Filed 07/19/22 Page 5 of 9
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`implement and enforce the Clean Air Act, including the actions sought in this Complaint.
`Defendant MARTHA GUZMAN is sued in her official capacity as Regional
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`Administrator for Region 9 of the United States Environmental Protection Agency. She is responsible
`for implementing and enforcing the Clean Air Act in Region 9, which includes California and the South
`Coast Air Basin.
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`STATUTORY FRAMEWORK
`The Clean Air Act establishes a partnership between EPA and the states for the
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`attainment and maintenance of the National Ambient Air Quality Standards (“NAAQS”). See 42 U.S.C.
`§§ 7401-7515. Under the Act, EPA has set health-based NAAQS for six pollutants, including ozone and
`PM2.5. States must adopt a State Implementation Plan (“SIP”) that contains enforceable emissions
`limitations necessary to attain the NAAQS and meet applicable requirements of the Act. 42 U.S.C. §§
`7401(a)(1), (a)(2)(A); 7502(c)(6). States must submit all such plans and plan revisions to the EPA. 42
`U.S.C. § 7410(a)(1).
`21. Within 60 days of EPA’s receipt of a proposed SIP revision, the Clean Air Act requires
`EPA to determine whether the submission is sufficient to meet the minimum criteria established by EPA
`for such proposals. 42 U.S.C. § 7410(k)(1)(B). If EPA fails to make this “completeness” finding, the
`proposed SIP revision becomes complete by operation of law six months after a state submits the
`revision. If EPA determines that the proposed SIP revision does not meet the minimum criteria, the state
`is considered to have not made the submission. 42 U.S.C. 7410(k)(1)(C).
`22. Within twelve months of an EPA finding that a proposed SIP revision is complete (or
`deemed complete by operation of law), EPA must act to approve, disapprove, or approve in part and
`disapprove in part, the submission. 42 U.S.C. § 7410(k)(2).
`If EPA disapproves the revision, in whole or in part, then the Clean Air Act requires EPA
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`to impose sanctions against the offending state or region, including increased offsets for new and
`modified major stationary sources or a prohibition on the use of federal highway funds, unless the state
`submits revisions within 18 months. 42 U.S.C. §§ 7509(a), (b). EPA must impose both offsets and
`highway funding sanctions within 24 months unless the state has corrected the deficiency. Moreover, the
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`COMPLAINT
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`Case 3:22-cv-04191-TSH Document 1 Filed 07/19/22 Page 6 of 9
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`Act requires EPA to promulgate a Federal Implementation Plan within 24 months of disapproval unless
`the state has corrected the deficiency and EPA has approved the revision. 42 U.S.C. § 7410(c).
`Once EPA approves a SIP or SIP revision, the state and any regulated person must
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`comply with emissions standards and limitations contained in the SIP, and all such standards and
`limitations become enforceable as a matter of federal law by the EPA and citizens. 42 U.S.C. § 7413;
`7604(a), (f).
`If EPA fails to perform a non-discretionary duty, including acting on a proposed SIP or
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`SIP revision by the Clean Air Act deadline, then the Act allows any person to bring suit to compel EPA
`to perform its duty. 42 U.S.C. § 7604(a)(2).
`FACTUAL BACKGROUND
`PM2.5 is a directly emitted pollutant and forms secondarily in the atmosphere by the
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`precursor pollutants nitrogen oxides (“NOx”), ammonia, sulfur oxides, and volatile organic compounds
`(“VOC”). Ground-level ozone is formed by a reaction between NOx and volatile organic compounds in
`the presence of heat and sunlight. Unlike ozone in the upper atmosphere which is formed naturally and
`protects the Earth from ultraviolet radiation, ozone at ground level is primarily formed from
`anthropogenic pollution.
`Short-term exposure to PM2.5 pollution causes premature death, causes decreased lung
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`function, exacerbates respiratory disease such as asthma, and causes increased hospital admissions.
`Long-term exposure causes development of asthma in children, causes decreased lung function growth
`in children, exacerbates respiratory disease such as asthma, increases the risk of death from
`cardiovascular disease, and increases the risk of death from heart attacks. Individuals particularly
`sensitive to PM2.5 exposure include older adults, people with heart and lung disease, and children.
`Short-term exposure to ozone irritates lung tissue, decreases lung function, exacerbates
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`respiratory disease such as asthma and Chronic Obstructive Pulmonary Disease (COPD), increases
`susceptibility to respiratory infections such as pneumonia, all of which contribute to an increased
`likelihood of emergency department visits and hospitalizations. Short-term exposure to ozone also
`increases the risk of premature death, especially among older adults. Long-term exposure to ozone
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`COMPLAINT
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`causes asthma in children, decreases lung function, damages the airways, leads to development of
`COPD, and increases allergic responses.
`On July 18, 1997, the EPA established a 24-hour PM2.5 standard of 65 µg/m3 and an
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`annual PM2.5 standard of 15 µg/m3 after considering evidence from “numerous health studies
`demonstrating that serious health effects” occur from exposures to PM2.5. See 81 Fed. Reg. 6936
`(February 9, 2016); see also 62 Fed. Reg. 38652 (July 18, 1997); 40 C.F.R. § 50.7.
`On October 17, 2006, EPA strengthened the short-term 24-hour PM2.5 standard by
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`lowering it to 35 µg/m3. 70 Fed. Reg. 61144 (Oct. 17, 2006); 40 C.F.R § 50.13.
`Effective March 18, 2013, the EPA strengthened the primary annual PM2.5 standard by
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`lowering the level from 15 to 12 µg/m3 while retaining the secondary annual PM2.5 NAAQS at the level
`of 15.0 µg/m3. 78 Fed. Reg. 3086 (January 15, 2013); 40 C.F.R. § 50.18.
`EPA classified the South Coast Air Basin as a moderate nonattainment area for the 1997
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`PM2.5 standards, a serious nonattainment area for the 2006 PM2.5 standard, and a serious
`nonattainment area for the 2012 PM2.5 standard.
`On July 18, 1997, EPA promulgated the 8-hour ozone standard to replace the less
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`stringent 1-hour ozone standard. 62 Fed. Reg. 38856 (July 18, 1997); 40 C.F.R. § 50.9(b) (2003).
`In 2008, EPA completed a review of the 8-hour ozone standard and found it necessary to
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`lower the ambient concentration of ozone to 0.075 parts per million as the 2008 Standard. 73 Fed. Reg.
`16436 (March. 27, 2008); 40 C.F.R. § 50.15. The EPA based this decision on its findings that “(1) the
`strong body of clinical evidence in healthy people at exposure levels of 0.080 and above of lung function
`decrements, respiratory symptoms, pulmonary inflammation, and other medically significant airway
`responses, as well as some indication of lung function decrements and respiratory symptoms at lower
`levels; (2) the substantial body of clinical and epidemiological evidence indicating that people with
`asthma are likely to experience larger and more serious effects than healthy people; and (3) the body of
`epidemiological evidence indicating associations are observed for a wide range of serious health effects,
`including respiratory emergency department visits, hospital admissions, and premature mortality, at and
`below 0.080 ppm.” 73 Fed. Reg. at 16476.
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`COMPLAINT
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`On October 26, 2015, EPA revised “the level of the standard to 0.070 ppm to provide
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`increased public health protection against health effects associated with long- and short-term exposures.
`80 Fed. Reg. 65292, 65294 (Oct. 26, 2015); 40 C.F.R. § 50.19.
`EPA classified the South Coast Air Basin as an extreme nonattainment area for the 2008
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`8-hour ozone standard and an extreme nonattainment area for the 2015 8-hour ozone standard.
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`FIRST CLAIM FOR RELIEF
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`Failure to Perform a Non-Discretionary Duty to Act on the Innovative Clean Transit Regulation
`(42 U.S.C. § 7410(k)(2))
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`CCAEJ re-alleges and incorporates by reference the allegations set forth in paragraphs 1-
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`On December 18, 2018, the California Air Resources Board adopted the ICT Regulation.
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`According to the Board, the ICT regulation would result in thirty avoided deaths in the
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`South Coast Air Basin and would reduce PM2.5 and oxides of nitrogen emissions from buses to zero by
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`On February 12, 2020, the Board submitted the ICT regulation to EPA for inclusion in
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`the State Implementation Plan.
`The ICT regulation became complete by operation of law on August 13, 2020.
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`EPA has a mandatory duty to act on the 2018 PM2.5 Plan no later than August 13, 2021.
`42 U.S.C. § 7410(k)(2).
`By failing to act on the ICT regulation, EPA has violated and continues to violate its
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`nondiscretionary duty to act on the ICT regulation pursuant to Clean Air Act section 110(k)(2), 42
`U.S.C. § 7410(k)(2).
`This Clean Air Act violation constitutes a “failure of the Administrator to perform any act
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`or duty under this chapter which is not discretionary with the Administrator” within the meaning of the
`Act’s citizen suit provision. 42 U.S.C. § 7604(a)(2). EPA’s violation of the Act is ongoing and will
`continue unless remedied by this Court.
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`COMPLAINT
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`Case 3:22-cv-04191-TSH Document 1 Filed 07/19/22 Page 9 of 9
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`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff respectfully requests the Court grant the following relief:
`DECLARE that the Defendants violated the Clean Air Act by failing to act on the ICT
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`regulation;
`ISSUE preliminary and permanent injunctions directing the Defendants to finalize action
`on the ICT regulation;
`RETAIN jurisdiction over this matter until such time as the Defendants have complied with
`their nondiscretionary duty under the Clean Air Act;
`AWARD to Plaintiff its costs of litigation, including reasonable attorney and expert witness
`fees; and
`GRANT such additional relief as the Court may deem just and proper.
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`Dated: July 19, 2022
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`Respectfully Submitted,
`LAW OFFICES OF BRENT J. NEWELL
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`By: /s/ Brent J. Newell
`Brent J. Newell
`Attorney for Plaintiff
`CENTER FOR COMMUITY ACTION AND
`ENVIRONMENTAL JUSTICE
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