Notice & Comment

Court Will Not Compel EPA Determination on Aviation Gasoline Effects, by Katherine Kennedy

The District Court for the District of Columbia recently granted the Environmental Protection Agency’s (“EPA”) motion to dismiss a suit by Friends of the Earth (“FOE”) seeking to compel the agency to make a determination regarding aviation gasoline and its effects on human health.  Friends of the Earth v. EPA, et. al., 2013 U.S. Dist. LEXIS 43263 (D.D.C. Mar. 27, 2013).  Specifically, FOE sought to make EPA determine whether lead emissions from general aircraft engines using aviation gasoline endanger the public health or welfare under 42 U.S.C. § 7571(a)(2)(A) of the Clean Air Act (“CAA”).  If the EPA determined that the emissions cause or contribute to air pollution, and therefore endangers public health or welfare, the agency would have to make the endangerment finding and govern the emissions.

This dispute began when FOE filed a petition for rulemaking with EPA in October 2006. Two and a half years later, on April 28, 2010, EPA issued an Advance Notice of Proposed Rulemaking on Lead Emissions from Piston-Engine Aircraft Using Leaded Aviation Gasoline, Available at 75 Fed. Reg. 22,440 (Apr. 28, 2010). However, FOE still brought suit alleging that EPA failed to respond to its original petition. After an inability to resolve the issue through briefing and discovery, the EPA denied the petition, stating that although it would not make a rule, it would engage in notice and comment to determine if FOE’s evidence was true regarding pollution and human health.

FOE brought this claim under the citizen suit provision, the same provision utilized in the infamous Mass v. EPA case, due to EPA’s “unreasonable delay under its statutory duty to perform.” EPA moved for summary judgment to dismiss the case for lack of subject matter jurisdiction. The court in this case only heard the issue of whether FOE had standing to bring this suit under section 304 of CAA, allowing citizen suits against the EPA. The court held for EPA and that FOE lacked standing to challenge EPA in this manner, although the court expressly stated that it did not discredit the underlying public health concerns of this case.

The citizen suit provision of CAA, section 304(a)(2), states that a person can bring a civil action against the EPA in district court if there is an alleged failure to perform any non-discretionary act or duty under the law. Further, the section provides the district courts shall have jurisdiction to compel agency action when unreasonably delayed.  However, the court has subject matter jurisdiction over this action only if making the endangerment determination that would require the agency to promulgate standards is a nondiscretionary act assigned to the agency. The court reasoned that since the Act does not create a mandatory duty within the EPA to regulate aviation gasoline, and since the court lacks the authority to tell EPA how to regulate these types of emissions, the court lacks jurisdiction to hear the case. Thus, the court held that the endangerment determination is not a nondiscretionary act or duty that the citizen suit provision grants the district courts the jurisdiction to compel.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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