Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 1 of 15
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`Paul R. Cort, State Bar No. 184336
`Earthjustice
`50 California Street
`San Francisco, CA 94111
`Tel: 415-217-2000/Fax: 415-217-2040
`pcort@earthjustice.org
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`Kathleen Riley, Pro Hac Vice Pending
`Neil Gormley, Pro Hac Vice Pending
`Earthjustice
`1001 G St NW, Suite 1000
`Washington, DC 20001
`Tel: 202-667-4500/Fax: 202-667-2356
`kriley@earthjustice.org
`ngormley@earthjustice.org
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`Counsel for Plaintiffs Sierra Club, Air Alliance Houston, Center for Biological Diversity, and
`Texas Environmental Justice Advocacy Services
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`Zachary Fabish, State Bar No. 247535
`Sierra Club
`50 F Street, NW, 8th Floor
`Washington, DC 20001
`(202) 675-7917
`zachary.fabish@sierraclub.org
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`Counsel for Plaintiff Sierra Club
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`Hayden Hashimoto, State Bar No. 325150
`Clean Air Task Force
`114 State St., 6th Floor
`Boston, MA 02109
`(808) 342-8837
`hhashimoto@catf.us
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`Counsel for Plaintiffs Citizens for Pennsylvania’s Future and Clean Air Council
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 2 of 15
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SIERRA CLUB; AIR ALLIANCE
`HOUSTON; CENTER FOR BIOLOGICAL
`DIVERSITY; CITIZENS FOR
`PENNSYLVANIA’S FUTURE; CLEAN AIR
`COUNCIL; and TEXAS
`ENVIRONMENTAL JUSTICE
`ADVOCACY SERVICES,
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`Plaintiffs,
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`v.
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`MICHAEL S. REGAN, in his official
`capacity as Administrator of the United States
`Environmental Protection Agency,
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` Defendant.
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`Civil Action No. ________________
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`COMPLAINT FOR
`DECLARATORY AND INJUNCTIVE
`RELIEF
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`INTRODUCTION
`Ground-level ozone, also called smog, seriously harms human health and the
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`environment. Exposure to ozone, whether at high levels over short periods of time, or at lower
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`levels sustained over longer periods of time, impairs breathing, inflames lungs, sends people to
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`the hospital, and can even kill. Ozone pollution also harms plants and ecosystems.
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`2.
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`Ozone forms in the air when its precursors, nitrogen oxides and volatile organic
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`compounds, react in the presence of sunlight. These precursor pollutants are emitted from
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`numerous sources—for example, power plants, chemical plants, oil and gas production, and
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`vehicles. Both ozone and its precursor pollutants travel across state lines and contribute to
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`unhealthy ozone levels in downwind states.
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`3.
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`The Clean Air Act requires the United States Environmental Protection Agency (“EPA”)
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`to set health- and welfare-protective national standards limiting the concentration of ozone
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 3 of 15
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`allowed in the outdoor air. 42 U.S.C. § 7409(a), (b). The Act also includes a “Good Neighbor”
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`provision that requires upwind states to control the pollution emitted within their borders that
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`significantly contributes to violations of the standards in downwind areas. 42 U.S.C. §
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`7410(a)(2)(D)(i)(I).
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`4.
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`States must submit to EPA plans to attain the standards and to satisfy the Good Neighbor
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`provision. 42 U.S.C. § 7410(a)(1). If a state fails to submit a Good Neighbor plan or submits an
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`inadequate Good Neighbor plan, EPA must promulgate a federal plan instead. 42 U.S.C. §
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`7410(c)(1).
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`5.
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`In 2015, EPA strengthened the national ozone standard, triggering a requirement for
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`states to adopt plans implementing the Good Neighbor provision and submit them “within 3
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`years” to EPA for approval. 42 U.S.C. § 7410(a); 80 Fed. Reg. 65,292 (Oct. 26, 2015).
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`6.
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`On December 5, 2019, and effective January 6, 2020, EPA found that four states failed to
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`submit complete plans: New Mexico, Pennsylvania, Utah, and Virginia.1 84 Fed. Reg. 66,614
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`(Dec. 5, 2019) (effective Jan. 6, 2020). This finding triggered EPA’s obligation to promulgate
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`federal plans for the four states within two years, or by January 6, 2022. 42 U.S.C. § 7410(c)(1).
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`7.
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`Separately, EPA missed its deadline to approve or disapprove Good Neighbor plans
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`submitted by thirty-two additional states. Plaintiffs Sierra Club, Air Alliance Houston, Center for
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`Biological Diversity, and Texas Environmental Justice Advocacy Services, among others, sued
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`to compel the overdue action, and this Court entered a consent decree. See Consent Decree,
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`Downwinders, No. 4:21-cv-03551-DMR (N.D. Cal. Jan. 12, 2022).
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`1 EPA also found that Maine, Rhode Island, and South Dakota failed to submit adequate plans.
`84 Fed. Reg. 66,614 (Dec. 5, 2019). These states are not at issue in this complaint because EPA
`subsequently approved new plans from these states. 85 Fed. Reg. 67,653 (South Dakota); 86 Fed.
`Reg. 45,870 (Maine); 86 Fed. Reg. 70,409 (Rhode Island).
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 4 of 15
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`In accordance with that consent decree, on February 28, 2022, EPA signed proposed
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`federal Good Neighbor plans for 22 states.2 At the same time, EPA also signed proposed federal
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`Good Neighbor plans for Pennsylvania, Utah, and Virginia.3 These proposals are expected to be
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`published shortly in the Federal Register. However, as of the date of this filing, EPA has not
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`finalized federal Good Neighbor plans for Pennsylvania, Utah, and Virginia, and has neither
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`proposed nor finalized a federal Good Neighbor plan for New Mexico.
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`9.
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`EPA has failed to promulgate federal Good Neighbor plans for New Mexico,
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`Pennsylvania, Utah, and Virginia by January 6, 2022. This failure violates the Clean Air Act.
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`Thus, Sierra Club, Air Alliance Houston, Center for Biological Diversity, Citizens for
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`Pennsylvania’s Future, Clean Air Council, and Texas Environmental Justice Advocacy Services
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`(collectively, “Plaintiffs”) seek both declaratory relief and an order to compel the Administrator
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`to promptly promulgate final federal Good Neighbor plans for these four states.
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`JURISDICTION, VENUE, DIVISIONAL ASSIGNMENT, AND NOTICE
`This is an action to compel the Administrator to perform a non-discretionary act or duty
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`under the Clean Air Act. 42 U.S.C. § 7604(a)(2); id. § 7410(a)(2)(D)(i)(I), (c)(1). This Court has
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`jurisdiction pursuant to section 7604(a)(2) of the Act; 28 U.S.C. § 1331 (federal question
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`jurisdiction); and 28 U.S.C. § 1361 (action to compel an officer of the U.S. to perform [their]
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`duty).
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`2 Including Alabama, Arkansas, California, Illinois, Indiana, Kentucky, Louisiana, Maryland,
`Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New York, Ohio, Oklahoma,
`Tennessee, Texas, West Virginia, Wisconsin, and Wyoming. See EPA, Federal Implementation
`Plan Addressing Regional Ozone Transport for the 2015 Ozone, available at:
`https://www.epa.gov/system/files/documents/2022-03/nprm_transport-fip_2060-
`av5_prepublication.pdf (not yet published in the Federal Register).
`3 Id. EPA also signed a proposal to correct its prior approval of Delaware’s Good Neighbor plan
`and issue a federal plan. Id.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 5 of 15
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`11.
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`This Court may grant the relief Plaintiffs request pursuant to 42 U.S.C. § 7604(a)(2); the
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`Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202; and 28 U.S.C. § 1361.
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`12.
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`By certified mail postmarked January 7, 2022, with a courtesy copy sent by electronic
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`mail, Plaintiffs provided the Administrator with written notice of this action as required by the
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`Clean Air Act, 42 U.S.C. § 7604(b)(2), and 40 C.F.R. § 54.1-54.3.
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`13.
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`Venue is vested in this Court under 28 U.S.C. § 1391(e) because this suit names an
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`officer of an agency of the United States acting in their official capacity, no real property is
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`involved in this action, and Plaintiff Sierra Club resides in this judicial district. Additionally,
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`EPA maintains an office in San Francisco.
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`14.
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`This case is properly assigned to the Oakland Division of this Court because Sierra Club
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`resides in Oakland. Civil L.R. 3-2(c), (d).
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`PARTIES
`Plaintiff Sierra Club is a nonprofit corporation organized and existing under the laws of
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`the State of California, with its headquarters located in Oakland, California. The Sierra Club is a
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`national membership organization dedicated to the protection of public health and the
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`environment, including clean air, with over 780,000 members who reside in all 50 states, the
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`District of Columbia, and U.S. territories.
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`16.
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`Plaintiff Air Alliance Houston is a nonprofit corporation organized and existing under the
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`laws of the State of Texas, with its headquarters in Houston, Texas. Air Alliance Houston works
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`to reduce air pollution in the Houston region to protect public health and environmental integrity
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`through research, education, and advocacy.
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`17.
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`Plaintiff Center for Biological Diversity is a nonprofit conservation organization
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`incorporated under the laws of the State of California, headquartered in Tucson, Arizona, and
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`with an office in Oakland, California. The Center for Biological Diversity has approximately
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 6 of 15
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`84,000 members throughout the United States and the world. The Center for Biological
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`Diversity’s mission is to ensure the preservation, protection, and restoration of biodiversity,
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`native species, ecosystems, public lands and waters, and public health through science, policy,
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`and environmental law. Based on the understanding that the health and vigor of human societies
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`and the integrity and wildness of the natural environment are closely linked, the Center for
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`Biological Diversity is working to secure a future for animals and plants hovering on the brink of
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`extinction; the ecosystems they need to survive; and a healthy, livable future for all of us.
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`18.
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`Plaintiff Citizens for Pennsylvania’s Future (“PennFuture”), a corporation organized and
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`existing under the laws of the Commonwealth of Pennsylvania, is a nonprofit organization
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`dedicated to the transition to a clean energy economy and the protection of air, water, and land.
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`19.
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`Plaintiff Clean Air Council is a non-profit environmental organization, organized under
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`the laws of the Commonwealth of Pennsylvania. Clean Air Council’s mission is to protect and
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`defend everyone’s right to breathe clean air.
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`20.
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`Plaintiff Texas Environmental Justice Advocacy Services is a nonprofit organization
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`organized and existing under the laws of the State of Texas, with its headquarters in Houston,
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`Texas. Texas Environmental Justice Advocacy Services advances environmental justice through
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`education, policy development, community outreach, and legal action to achieve a healthy
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`environment for all, regardless of race or income.
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`21.
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`Collectively, Plaintiffs have members living, working, and engaging in outdoor activities
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`in all 50 states, Washington, D.C., and U.S. territories, including in the downwind areas that
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`receive pollution from states for which EPA has failed to promulgate federal Good Neighbor
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`plans.
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`Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 7 of 15
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`22.
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`Defendant Michael S. Regan is the Administrator of the U.S. Environmental Protection
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`Agency. Administrator Regan is charged with the duty to uphold the Clean Air Act and to take
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`required regulatory actions according to the schedules established by the Act.
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`FACTUAL BACKGROUND: OZONE
`Ozone, the main component of smog, is a corrosive air pollutant that inflames the lungs,
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`constricts breathing, and can kill. See Am. Trucking Ass’ns v. EPA, 283 F.3d 355, 359 (D.C. Cir.
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`2002); 80 Fed. Reg. 65,292, 65,308/3-309/1 (Oct. 26, 2015); EPA, Integrated Science
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`Assessment for Ozone and Related Photochemical Oxidants at 2-20 to -24 tbl.2-1, EPA-HQ-
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`OAR-2008-0699-0405 (Feb. 2013) (“ISA”). It causes and exacerbates asthma attacks,
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`emergency room visits, hospitalizations, and other serious health harms. E.g., EPA, Policy
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`Assessment for the Review of the Ozone National Ambient Air Quality Standards at 3-18, 3-26
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`to -29, 3-32, EPA-HQ-OAR-2008-0699-0404 (Aug. 2014) (“PA”); ISA 2-15 to -18, 2-20 to -24
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`tbl.2-1. The health harms caused by ozone pollution can force children and adults to stay indoors,
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`take medication, and miss work or school. E.g., PA 4-12.
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`24.
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`Ozone can harm anyone, but children and some adults are more vulnerable. See 80 Fed.
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`Reg. at 65,310. Because children’s respiratory tracts are not fully developed, they are especially
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`vulnerable to ozone pollution, particularly when they are breathing more quickly, such as when
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`playing outdoors. E.g., id. at 65,310/3, 65,446/1; PA 3-81 to -82. Older people and people living
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`with lung disease also have heightened vulnerability. See 80 Fed. Reg. at 65,310/3. And people
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`living with asthma suffer more severe impacts from ozone exposure and are more vulnerable at
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`lower levels of exposure. Id. at 65,311/1 n.37, 65,322/3.
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`25.
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` Ozone also damages vegetation and forested ecosystems, causing or contributing to
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`widespread stunting of plant growth, tree deaths, visible leaf injury, reduced carbon storage, and
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`Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 8 of 15
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`reduced crop yields. PA 5-2 to -3; ISA 9-1. By harming vegetation, ozone can also damage entire
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`ecosystems, leading to ecological and economic losses. See 80 Fed. Reg. at 65,370/1-2, 65,377/3.
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`STATUTORY AND REGULATORY BACKGROUND
`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). A “primary goal” of the Act is “pollution prevention.” Id.
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`§ 7401(c). Congress found the Act to be necessary in part because “the growth in the amount and
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`complexity of air pollution brought about by urbanization, industrial development, and the
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`increasing use of motor vehicles, has resulted in mounting dangers to the public health and
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`welfare.” Id. § 7401(a)(2).
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`27.
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`The Act requires that EPA establish national ambient air quality standards for certain air
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`pollutants that endanger public health and welfare, referred to as “criteria pollutants.” Id.
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`§§ 7408-7409. One such criteria pollutant is ground-level ozone. See 40 C.F.R. §§ 50.9, 50.10,
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`50.15, 50.19.
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`The national ambient air quality standards establish maximum allowable concentrations
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`of criteria pollutants in ambient air, i.e., outdoor air. Primary standards must be set at a level that
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`protects public health, including that of sensitive populations such as children, the elderly, and
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`people that suffer from asthma—with an adequate margin of safety. 42 U.S.C. § 7409(b)(1).
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`Secondary standards must be set at a level that protects public welfare, including protection
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`against damage to the environment. Id. §§ 7409(b)(2), 7602(h). EPA must review and, as
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`appropriate, revise these standards at least every five years. Id. § 7409(d)(1).
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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. EPA must “designate” areas as not meeting the standard, or
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`“nonattainment;” meeting the standard, or “attainment;” or, if EPA lacks information to make a
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`designation, “unclassifiable.” 42 U.S.C. § 7407(d)(1)(A)-(B). Simultaneous with designations,
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`the Act requires EPA to classify each ozone nonattainment area based on the severity of its
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`ozone pollution. Id. § 7511(a)(1) tbl.1. The classifications are, in increasing order, “marginal,”
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`“moderate,” “serious,” “severe,” and “extreme.” Id.
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`30.
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`All areas of the country must attain and maintain these standards “as expeditiously as
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`practicable but not later than” specified deadlines. See id.; see also NRDC v. EPA, 777 F.3d 456,
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`460 (D.C. Cir. 2014). Areas classified as being in “marginal” nonattainment must attain the
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`ozone standard by a deadline three years from the date they are designated nonattainment, while
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`“moderate” nonattainment areas have six years from the date of designation, and “serious” areas
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`have nine years. 42 U.S.C. § 7511(a)(1) tbl.1. As EPA has consistently recognized, “data from
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`the calendar year prior to the attainment date . . . are the last data that can be used to demonstrate
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`attainment with the [ozone standard] by the relevant attainment date.” 83 Fed. Reg. at 65,892.
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`31. Within three years after EPA sets or revises a standard, states must adopt and submit to
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`EPA a plan to attain the standard and to satisfy the Good Neighbor provision, by “prohibiting”
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`the pollution that significantly contributes to downwind nonattainment or interferes with
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`downwind maintenance of the standard. 42 U.S.C. § 7410(a)(2)(D)(i)(I); see Wisconsin v. EPA,
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`938 F.3d 303, 313 (D.C. Cir. 2019).
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`32.
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`If EPA finds that a state failed to submit a plan or submitted an inadequate plan, the Act
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`requires EPA to promulgate a federal implementation plan within two years. Id. § 7410(c)(1).
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`Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 10 of 15
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`EPA’S FAILURES TO ACT ON INTERSTATE OZONE POLLUTION
`UNDER THE 2015 OZONE STANDARD
`EPA strengthened the ozone standards to 70 parts per billion on October 26, 2015, based
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`on an extensive scientific record demonstrating that the prior ozone standards were inadequate to
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`protect public health and welfare. 80 Fed. Reg. 65,292.4
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`34.
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`An area violates the 2015 ozone standards if air monitoring data shows that the three-year
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`average of the annual fourth highest eight-hour daily maximum ozone concentration exceeds 70
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`parts per billion. 40 C.F.R. § 50.15(b).
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`The 2015 strengthening of the ozone standards triggered the requirement for states to
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`submit Good Neighbor plans to EPA within three years. 42 U.S.C. § 7410(a). The three-year
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`deadline for upwind states to submit Good Neighbor plans to EPA under the 2015 ozone
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`standard was October 26, 2018.
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`EPA was required to determine whether a state has submitted a complete plan within six
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`months of that date, or by April 26, 2019. See 42 U.S.C. § 7410(k)(1)(B).
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`37.
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`Because EPA missed the deadline to determine whether New Mexico, Pennsylvania,
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`Utah, and Virginia submitted complete plans, Sierra Club and, separately, the states of New
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`Jersey and Connecticut, filed suit.5 In response, EPA determined that New Mexico,
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`Pennsylvania, Utah, and Virginia had failed to submit complete plans. 84 Fed. Reg. 66,612 (Dec.
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` The most recent data indicates that the 2015 standard is inadequate to protect public health and
`the environment, and EPA is currently deciding whether to further strengthen the standard. See
`EPA, EPA to Reconsider Previous Administration’s Decision to Retain 2015 Ozone Standards
`(Oct. 29, 2021), available at https://www.epa.gov/ground-level-ozone-pollution/epa-reconsider-
`previous-administrations-decision-retain-2015-ozone.
`5 Complaint, Sierra Club v. Wheeler, No. 1:19–cv–02923 (D.D.C. filed Sept. 30, 2019)
`(regarding Arkansas, Hawaii, Louisiana, Maine, Maryland, Mississippi, New Mexico,
`Pennsylvania, Rhode Island, Utah, Vermont, and Virginia.); Complaint, New Jersey v. Wheeler,
`No. 1:19–cv–03247 (D.D.C. filed Oct. 29, 2019) (regarding Pennsylvania and Virginia).
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 11 of 15
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`5, 2019) (effective Jan. 6, 2020). This finding triggered EPA’s obligation to promulgate federal
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`Good Neighbor plans for these states within two years. 42 U.S.C. § 7410(c)(1).
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`38.
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`The two-year deadline for EPA to promulgate federal Good Neighbor plans for these four
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`states was January 6, 2022. See id.; 84 Fed. Reg. 66,614 (Dec. 5, 2019) (effective Jan. 6, 2020).
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`39.
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`On February 28, 2022, EPA signed proposed federal Good Neighbor Plans for
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`Pennsylvania, Utah, Virginia, and 23 additional states.6 These proposals are expected to be
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`published shortly in the Federal Register. However, as of the date of this filing, EPA has not
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`finalized federal Good Neighbor plans for Pennsylvania, Utah, and Virginia, and has neither
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`proposed nor finalized a federal Good Neighbor plan for New Mexico. Thus, EPA has failed to
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`discharge its nondiscretionary duty under 42 U.S.C. § 7410(c)(1) to promulgate federal Good
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`Neighbor plans for New Mexico, Pennsylvania, Utah, and Virginia.
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`40.
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`The deadline for moderate nonattainment areas to attain the 2015 ozone standards is
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`August 2024.7 Because several of the downwind states include moderate nonattainment areas,8
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`federal Good Neighbor plans must implement pollution reductions by the 2023 ozone season—
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`that is, by May 2023—to enable downwind areas to timely demonstrate attainment. See
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`Wisconsin, 938 F.3d 303, 313 (D.C. Cir. 2019); 83 Fed. Reg. at 65,892 (“data from the calendar
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`6 Alabama, Arkansas, Delaware, California, Illinois, Indiana, Kentucky, Louisiana, Maryland,
`Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New York, Ohio, Oklahoma,
`Tennessee, Texas, West Virginia, Wisconsin, and Wyoming. See EPA, Good Neighbor Plan for
`2015 Ozone Standards (Feb. 28, 2022), available at: https://www.epa.gov/csapr/good-neighbor-
`plan-2015-ozone-naaqs.
`7 See 42 U.S.C. § 7511(a)(1) tbl.1; EPA, Ozone NAAQS Timelines,
`https://www.epa.gov/ground-level-ozone-pollution/ozone-naaqs-timelines (last visited Mar. 14,
`2022).
`8 See EPA, Green Book, 8-Hour Ozone (2015) Designated Area/State Information,
`https://www3.epa.gov/airquality/greenbook/jbtc.html (last visited Mar. 16, 2022),
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 12 of 15
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`year prior to the attainment date . . . are the last data that can be used to demonstrate attainment
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`with the [ozone standard] by the relevant attainment date.”).
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`PLAINTIFFS’ INJURIES
`EPA’s unlawful delay harms millions of people, including Plaintiffs’ members, who live,
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`41.
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`work, or recreate in areas that fail to attain or struggle to maintain the 2015 ozone standard.
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`These include areas whose failures to meet or maintain the standard are attributable in part to
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`interstate pollution originating in the four states for which EPA has failed to promulgate federal
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`Good Neighbor plans by the deadline identified by 42 U.S.C. § 7410(c)(1).
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`42.
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`Elevated ozone levels, including levels that exceed the 2015 standard of 70 parts per
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`billion, harm Plaintiffs’ members’ health and force them to limit outdoor activities that they
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`would otherwise be able to engage in. And Plaintiffs’ members’ reasonable concerns about the
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`health harms of their ozone exposure diminish their enjoyment of their outdoor activities.
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`43.
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`Plaintiffs’ members’ interests in using and enjoying the environment of areas that fail to
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`meet or struggle to maintain the 2015 standard are further harmed because elevated levels of
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`ozone damage plant life, aquatic life, and natural ecosystems. Ozone damage to vegetation can
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`lead to wildlife avoidance of certain areas, as well as a reduction in biodiversity or other changes
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`to local ecosystems, making it more difficult for Plaintiffs’ members to observe, cultivate,
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`harvest, study, research, photograph, and write about wildlife, plants, and ecosystems.
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`44.
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`EPA’s failures here also harm Plaintiffs’ members by nullifying or delaying measures
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`and procedures mandated by the Act to protect their health from ozone pollution. EPA’s failure
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`to promulgate federal Good Neighbor plans deprives Plaintiffs and their members of procedural
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`rights and protections to which they would otherwise be entitled, including, but not limited to,
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`the right to judicially challenge final federal Good Neighbor plans that fail to protect their
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 4:22-cv-01992-DMR Document 1 Filed 03/29/22 Page 13 of 15
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`members, and the right to enforce federal Good Neighbor plans to remedy and prevent violations
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`of the 2015 ozone standard.
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`45.
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`EPA’s failures here also harm Plaintiffs and their members by depriving them of relevant
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`information, including, but not limited to, EPA’s findings and analysis in support of final federal
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`Good Neighbor plans and the contents of final federal Good Neighbor plans. If Plaintiffs had
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`access to such information, they would use it to, among other things: educate their members and
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`the public about interstate ozone pollution; advocate for adoption of adequate measures to bring
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`areas that continue to violate that standard into compliance; and more efficiently target Plaintiffs’
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`actions to promote effective implementation of the 2015 ozone standard. This absence of
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`information impairs Plaintiffs’ ability to perform certain programmatic functions essential to
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`their missions, such as advocating for state or federal adoption of measures adequate to bring
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`areas that continue to violate the standard into compliance and educating members and the public
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`about cross-state ozone pollution and these protective measures.
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`46.
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`Accordingly, the health, recreational, aesthetic, procedural, informational, and
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`organizational interests of Plaintiffs and their members have been and continue to be harmed by
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`the acts and omissions of EPA alleged here.
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`47.
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`A court order requiring EPA to promptly promulgate final federal Good Neighbor plans
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`for New Mexico, Pennsylvania, Utah, and Virginia would redress Plaintiffs’ and Plaintiffs’
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`members’ injuries.
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`CLAIM FOR RELIEF
`The allegations of all foregoing paragraphs are incorporated as if set forth fully below.
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`48.
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`Violation of the Clean Air Act
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`49.
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`The deadlines for EPA to promulgate final federal Good Neighbor plans under the 2015
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`ozone standard for New Mexico, Pennsylvania, Utah, and Virginia expired on January 6, 2022.
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`50.
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`As of the date of this Complaint, the Administrator has failed to promulgate final federal
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`Good Neighbor plans under the 2015 ozone standard for these four states.
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`51.
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`This constitutes a “failure of the Administrator to perform any act or duty under this
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`chapter which is not discretionary” within the meaning of the Clean Air Act, 42 U.S.C.
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`§ 7604(a)(2), and violates the Act. EPA’s violations are ongoing and will continue unless
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`remedied by this Court.
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`RELIEF REQUESTED
`Plaintiffs respectfully request that the Court:
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`(1) Declare that EPA’s failure to promulgate final federal Good Neighbor plans under the
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`2015 ozone standard for New Mexico, Pennsylvania, Utah, and Virginia by the
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`deadline required by 42 U.S.C. § 7410(c)(1) constitutes a “failure of the Administrator
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`to perform any act or duty under this chapter which is not discretionary” within the
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`meaning of 42 U.S.C. § 7604(a)(2);
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`(2) Enjoin the Administrator from continuing to violate the above-described
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`nondiscretionary duty for each of the four states;
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`(3) Order the Administrator to promulgate final federal Good Neighbor plans under the
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`2015 ozone standard for New Mexico, Pennsylvania, Utah, and Virginia by a date
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`certain;
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`(4) Retain jurisdiction to ensure compliance with the Court’s decree;
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`(5) Award Plaintiffs the costs of this action, including attorney’s fees; and,
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`(6) Grant such other relief as the Court deems just and proper.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`DATED: March 29, 2022
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`Respectfully Submitted,
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`/s/ Hayden Hashimoto
`Hayden Hashimoto, State Bar No. 325150
`Clean Air Task Force
`114 State St., 6th Floor
`Boston, MA 02109
`(808) 342-8837
`hhashimoto@catf.us
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`Counsel for Plaintiffs Citizens for
`Pennsylvania’s Future and Clean Air
`Council
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`/s/ Paul R. Cort
`Paul R. Cort, State Bar No. 184336
`Earthjustice
`50 California Street
`San Francisco, CA 94111
`pcort@earthjustice.org
`Tel: 415-217-2000/Fax: 415-217-2040
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`Kathleen Riley, Pro Hac Vice Pending
`Neil Gormley, Pro Hac Vice Pending
`Earthjustice
`1001 G St NW, Suite 1000
`Washington D.C 20001
`(202) 667-4500
`kriley@earthjustice.org
`ngormley@earthjustice.org
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`Counsel for Plaintiffs Sierra Club, Air Alliance
`Houston, Center for Biological Diversity, and
`Texas Environmental Justice Advocacy
`Services
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`Zachary M. Fabish, State Bar No. 247535
`Sierra Club
`50 F Street, NW, 8th Floor
`Washington, DC 20001
`(202) 675-7917
`zachary.fabish@sierraclub.org
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`Counsel for Plaintiff Sierra Club
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