Case 4:21-cv-06166 Document 1 Filed 08/11/21 Page 1 of 13
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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 Environmental
`Health, Sierra Club, and Center for Biological
`Diversity
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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 ENVIRONMENTAL
`HEALTH, SIERRA CLUB, and CENTER
`FOR BIOLOGICAL DIVERSITY,
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`Plaintiffs,
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`v.
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`MICHAEL S. REGAN,
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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 4:21-cv-06166 Document 1 Filed 08/11/21 Page 2 of 13
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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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`1.
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`This is a Clean Air Act “deadline” suit against Michael S. Regan, in his official capacity as
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`Administrator of the United States Environmental Protection Agency (EPA), for his failure to
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`protect people, ecosystems, and wildlife from dangerous exposure to sulfur oxides (SOx) air
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`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: Detroit, MI Wayne County (part)1 (Detroit) and Anne Arundel County and Baltimore
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`1 This is the area bounded on the east by the Michigan-Ontario border, on the south by the
`Wayne County-Monroe County border, on the west by Interstate 75 north to Southfield Road,
`Southfield Road to Interstate 94, and Interstate 94 north to Michigan Avenue, and on the north
`by Michigan Avenue to Woodward Avenue and a line on Woodward Avenue extended to the
`Michigan-Ontario border. See 40 C.F.R. § 81.323.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:21-cv-06166 Document 1 Filed 08/11/21 Page 3 of 13
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`County, MD2 (Baltimore). Nearly 1.3 million people live and work in these areas with air
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`pollution that exceeds the SO2 NAAQS.
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`5.
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`When a state submits a state implementation plan (SIP) to EPA which is supposed to
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`reduce pollution levels to below the NAAQS, the Clean Air Act requires that EPA review it
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`within specified time frames. Maryland submitted a SIP to EPA for the Baltimore nonattainment
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`area, but EPA has not met the deadline to review the SIP and determine whether it meets the
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`requirements of the Clean Air Act. See 42 U.S.C. § 7410(k)(2)-(4). If a state fails to submit a
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`required SIP by the deadline set by the Clean Air Act, EPA is required to make a finding that the
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`state failed to submit its required SIP. This finding triggers a requirement that EPA promulgate a
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`Federal Implementation Plan (FIP) within two years of the finding to filling in the gap left by the
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`state’s failure to submit a SIP. EPA made a finding, effective April 18, 2016, that Michigan
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`failed to submit the required SO2 nonattainment SIP for Detroit. However, despite that fact that
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`more than two years has passed, EPA has failed to promulgate a FIP.
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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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`2 This is portions of Anne Arundel County that are within 26.8 kilometers of Herbert A.
`Wagner's Unit 3 stack, which is located at 39.17765 N. latitude, 76.52752 W. longitude and
`portions of Baltimore County that are within 26.8 kilometers of Herbert A. Wagner's Unit 3
`stack, which is located at 39.17765 N. latitude, 76.52752 W. longitude. See 40 C.F.R. § 81.321.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:21-cv-06166 Document 1 Filed 08/11/21 Page 4 of 13
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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 18, 2021. EPA received it no later than May 25, 2021. More than 60 days have passed
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`since 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). Plaintiff Center for
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`Environmental Health maintains its principal place of business in Oakland, California. Plaintiff
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`Sierra Club maintains its principal place of business in Oakland, California. Oakland, California
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`is in the Northern California judicial district. This is a civil action in which the defendant is an
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`officer or employee of the United States or any agency thereof acting in his official capacity or
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`under color of legal authority. No real property is involved in this action. Defendant EPA
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`resides and performs its official duties in this district.
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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 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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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`and support business practices that are safe for public health and the environment. The Center
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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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`12.
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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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`13.
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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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`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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`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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`Defendant MICHAEL S. REGAN is the Administrator of the EPA. Administrator Regan
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`is charged with the duty to uphold the Clean Air Act and to take required regulatory actions
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`according to the schedules established by the Act, including the mandatory duties at issue in this
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`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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`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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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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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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`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,
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`and intensify the war against air pollution in the United States with a view to assuring that the air
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`we breathe throughout the Nation is wholesome once again.” H.R. Rep. No. 1146, 91st Cong.,
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`2d Sess. 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 with an
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`adequate margin of safety. 42 U.S.C. § 7409(b)(1). Secondary standards must be stringent
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`enough to protect public welfare, including, but not limited to, effects on soils, water, vegetation,
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`manmade materials, wildlife, visibility (i.e., haze), climate, damage to property, economic
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`impacts, and effects on personal comfort and well-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. SIPs to attain the NAAQS is areas
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`designated as nonattainment are known as nonattainment SIPs. These nonattainment SIPs
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`include various elements.
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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 SIP submittal, 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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`31.
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`If a state does submit a SIP submittal, EPA must determine if the submittal is
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`administratively complete. EPA has a mandatory duty to approve or disapprove administratively
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`complete SIP submittals within 12 months of finding the submittal administratively complete.
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`42 U.S.C. § 7410(k)(2) – (4).
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`FACTUAL BACKGROUND
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`32.
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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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`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.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:21-cv-06166 Document 1 Filed 08/11/21 Page 11 of 13
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`CLAIM ONE
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`(Failure to Approve or Disapprove Nonattainment SIP Submittal for Baltimore)
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`33.
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`Plaintiffs incorporate by reference all paragraphs listed above.
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`34. Maryland submitted a state implementation plan (SIP) to EPA for the Baltimore SO2
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`nonattainment area on February 3, 2020 which included the following elements: Attainment
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`Demonstration, Contingency Measures, Emissions Inventory, Nonattainment New Source
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`Review, Reasonably available control measures/Reasonably available control technology
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`(RACM/RACT), Reasonable Further Progress (RFP).
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`35.
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`36.
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`On March 18, 2020, EPA found Maryland’s SIP submittal administratively complete.
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`As a result, EPA has a mandatory duty to approve or disapprove, either in full or in part,
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`Maryland’s above listed elements of the SIP submittal for Baltimore by March 18, 2021. See 42
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`U.S.C. § 7410(k)(2)-(4).
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`It has been more than 12 months since EPA found the above referenced SIP submittal for
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`Baltimore administratively complete. Yet, EPA has not approved or disapproved, either in full
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`or in part, the above referenced SIP submittal.
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`38.
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`Therefore, EPA is in violation of its mandatory duty to approve or disapprove, either in
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`full or in part, Maryland’s above listed elements of the SIP submittal for Baltimore.
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`39.
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`40.
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`CLAIM TWO
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`(Failure to promulgate a FIP for Detroit)
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`Plaintiffs incorporate by reference all paragraphs listed above.
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`On March 18, 2016, effective April 18, 2016, EPA published an action finding that
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`Michigan had failed to submit the required SO2 nonattainment SIP for the Detroit nonattainment
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`area by the submittal deadline. See 81 Fed. Reg. 14,736, 14,738 (Mar. 18, 2016).
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`11
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`Case 4:21-cv-06166 Document 1 Filed 08/11/21 Page 12 of 13
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`This finding triggered a requirement that EPA promulgate a Federal Implementation Plan
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`41.
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`(FIP) within two years of the finding unless, before promulgating the FIP (a) the state had made
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`the necessary complete submittal and (b) EPA had approved the submittal as meeting applicable
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`requirements. See 42 U.S.C. § 7410(c)(1).
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`42.
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`As a result, EPA has a mandatory duty to promulgate a FIP for the Detroit SO2
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`nonattainment area by no later than April 18, 2018 for the Attainment Demonstration,
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`Contingency Measures, RACM/RACT, and RFP elements.
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`43.
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`It is after April 18, 2018.
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`44.
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`EPA has not approved a SIP submittal for the above referenced elements for the Detroit
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`SO2 nonattainment area.
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`45.
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`EPA has not promulgated a FIP for the above referenced elements for the Detroit SO2
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`nonattainment area.
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`46.
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`Therefore, EPA is in violation of its mandatory duty to promulgate a FIP for the above
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`referenced elements for the Detroit SO2 nonattainment area.
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`Plaintiffs respectfully request that the Court:
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`RELIEF REQUESTED
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`(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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`(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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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:21-cv-06166 Document 1 Filed 08/11/21 Page 13 of 13
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`(D) Grant Plaintiffs their reasonable costs of litigation, including attorneys’ and expert fees;
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`and
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`(E) Grant such further relief as the Court deems just and proper.
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`Respectfully Submitted,
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`
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`/s/ Jonathan Evans
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`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
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`Counsel for Plaintiffs Center for Environmental
`Health, Sierra Club, and Center for Biological
`Diversity,
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`DATED:
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`August 11, 2021
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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