States Say EPA Is in ‘Open Defiance’ of Clean Air Law

OAKLAND, Calif. (CN) — A federal judge appeared ready Thursday to order the U.S. Environmental Protection Agency to reduce carcinogenic air pollutants emitted by municipal solid-waste landfills nationwide, 1½ years after the EPA refused to comply with its own mandate to do so.

In an afternoon hearing on dueling motions for summary judgment, U.S. District Judge Haywood Gilliam Jr. all but rejected EPA arguments that eight plaintiff states, led by California, do not have standing to sue for the EPA’s failure to review their proposed plans for meeting stricter emissions guidelines — issued by the EPA itself in 2016 — because pollution-related injuries are not traceable to the EPA’s inaction.

"But don't the guidelines themselves establish that Congress thought there was a harm that needed to be remediated?" Gilliam asked EPA attorney Leslie Hill. "Doesn't the fact of the guidelines tell me what I need to know about the question of harm?"

The states sought an injunction in May 2018, ordering the EPA to implement the regulations issued under the Clean Air Act, which it was supposed to have done by late 2017. In court filings, the EPA conceded it had missed the deadline but said it had no mandatory duty to act because the states had not shown standing.

Gilliam said Thursday he knew of no case in which the federal government had made a mandatory-duty argument in such a case.

Hill conceded there "aren't a lot of opinions out there" on such cases, and that she didn't know whether any court has accepted the argument. But she said it didn't matter because the plaintiffs had failed to demonstrate harm.

"It can't simply be you point to climate change and standing is guaranteed," she said. "The plaintiffs still need to make a demonstration, and our position is they didn't make a demonstration."

Gilliam was doubtful, saying he would be "pioneering a new theory no other court has judged in that regard" if he accepted Hill's argument.

The only open question for Gilliam on Thursday appeared to be how long he should give the EPA to review the state plans and pass a federal plan. The EPA wants 12 months to review the California and federal plans because they're the most complicated.

Pointing out that the EPA is already 1½ years past its deadline, the states and plaintiff-intervenor Environmental Defense Fund want 30 days for review of all state plans and six months for the federal plan.

The court must put "the agency's toes to the fire to expedite its review of these state plans," said California Deputy Attorney General Elizabeth Rumsey. "The case law talks about foot-dragging, and EPA's conduct here is way worse foot-dragging. They have been in open defiance of the law here."

Gilliam acknowledged there had been a "lengthy delay," but he was open to striking a balance between the parties' proposed deadlines.

"The cases also make clear it's not punishment," Gilliam told Rumsey. "I don't impose the deadline to lay a hammer on them. I have to try to figure out what is realistically practicable, understanding there ought to be significant time pressure to get it done as expeditiously as possible, given the delay."

Before closing the proceedings, Gilliam said "I'll have to figure out what is reasonable."

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