Home » Case Summaries » 2015 » WildEarth Guardians v. McCarthy, 772 F.3d 1179 (9th Cir. 2014)


WildEarth Guardians v. McCarthy, 772 F.3d 1179 (9th Cir. 2014)


WildEarth Guardians and other environmental conservation groups (collectively, WildEarth)[1] sued the United States Environmental Protection Agency (EPA) under the citizen suit provision of the Clean Air Act (CAA),[2] alleging that EPA failed to perform its nondiscretionary duty to issue revised ozone regulations under CAA section 166(a).[3] The United States District Court for the Northern District of California dismissed the claim for lack of subject matter jurisdiction on grounds that the CAA permits, but does not require, EPA to issue such regulations. The Ninth Circuit, reviewing the dismissal de novo, affirmed the district court.

The only issue on appeal was the scope of CAA section 166(a). This statutory provision has two sentences. The first sentence imposes a nondiscretionary duty to enact regulations by 1979 for four pollutants, including ozone.[4] The second sentence requires regulations for “pollutants for which national ambient air quality standards [NAAQS] are promulgated.”[5] WildEarth argued that the two sentences should be read in concert—meaning the nondiscretionary duty is imposed not only when NAAQS are issued for newly regulated pollutants but also when NAAQS are revised for already regulated pollutants. Consequently, WildEarth argued that when EPA revised the NAAQS for ozone in 2008, it had a nondiscretionary duty to promulgate revised Prevention of Significant Deterioration (PSD) regulations. Alternately, EPA argued that the two sentences should be read as referring to two mutually exclusive sets of pollutants, and that the second sentence only imposes a duty for newly regulated pollutants other than the four listed in the first sentence.

The Ninth Circuit held that the statute is ambiguous and that both statutory interpretations are plausible. Consequently, the Court held that it did not have to decide whether a nondiscretionary duty was imposed because nondiscretionary requirements must be “clear-cut—that is, readily ascertainable from the statute allegedly giving rise to the duty.”[6] As the duty was not readily ascertainable, WildEarth was precluded from relying on CAA’s citizen-suit provision as a jurisdictional basis.

In sum, the Ninth Circuit affirmed the district court’s dismissal of the case for lack of subject matter jurisdiction because the statute did not unambiguously provide EPA with a nondiscretionary duty.

Footnotes    (↵ returns to text)

  1. Midwest Environmental Defense Center and Sierra Club were also plaintiffs.
  2. 42 U.S.C. §§ 7401–7671q (2012).
  3. Id. § 7476(a).
  4. The statute lists “photochemical oxidants,” which the court here describes as ozone pollutants. Id.
  5. Id.
  6. WildEarth Guardians v. McCarthy, 772 F.3d 1179, 1182 (9th Cir. 2014) (citation omitted).
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