On August 28, the U.S. Court of Appeals for the Ninth Circuit decided the case of Sierra Club, et al., v. State of North Dakota, et al., a Clean Air Act (CAA) Citizen lawsuit. The Ninth Circuit affirmed, in a 2-1 ruling, the District Court’s approval of a Consent Decree between the Environmental Protection Agency (EPA) and Sierra Club that established a schedule by which EPA would promulgate “designations” determining which geographic locations met the National Air Quality Standards (NAAQS) for 1-Hour Sulfur Dioxide (SO2) under the CAA.

These NAAQS must, by law, be revised periodically. When EPA fails to make these designations in a timely manner and fails to adhere to the statutory deadlines, EPA was subject to Citizen Suits under the law, as happened here, and several states intervened in this litigation.

This particular lawsuit was filed in the Northern District of California, and was finally terminated by the Consent Decree, which the District Court determined to be “fair, adequate and reasonable.” The revised NAAQS for SO2 were issued in June 2010, but EPA was unable to complete the necessary designations by the June 2013 deadline; indeed, only 29 of the more that 3000 designations had been completed. The intervention of several states resulted in a series of settlement meetings and negotiations which were unsuccessful, persuading EPA and the Sierra Club to terminate the lawsuit by entering into a Consent Decree which established a new deadline by which time all designations had to be completed; this new deadline is December 31, 2020, or more than seven years after the CAA’s statutory deadline.

The intervening states argued that this action was contrary to the specific CAA deadline, but the Ninth Circuit majority dismissed the significance of this date. The Ninth Circuit concluded that these states had preserved their vital claims in separate litigation, none of which would be affected by EPA’s adherence to these new deadlines, and these states cannot block the Consent Decree by withholding their assent.

In dissent, Judge Wallace argued that the majority had effectively re-written the statutory deadlines, and by doing so violated the separation of powers doctrine which “forbids our amending the statute—only the Congress can do that.”

All in all, a very interesting case—which cannot often be said about CAA matters.