PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT

CASE NO. 4:13-CV-03953 SI

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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

DAVID S. BARON, Admitted Pro Hac Vice
Earthjustice
1625 Massachusetts Ave, STE 702
Washington, DC 20036
dbaron@earthjustice.org
Tel: 202-667-4500/Fax: 202-667-2356

Attorneys for Plaintiffs Sierra Club
and Natural Resources Defense Council

ZACHARY M. FABISH, State Bar No. 247535
The Sierra Club
50 F Street, NW - 8th Floor
Washington, DC 20001
zachary.fabish@sierraclub.org
Tel: 202-675-7917/Fax: 202-547-6009

Attorney for Plaintiff Sierra Club



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION




SIERRA CLUB and NATURAL RESOURCES
DEFENSE COUNCIL,

Plaintiffs,
v.

REGINA MCCARTHY, in her official capacity as
Administrator of the United States Environmental
Protection Agency,

Defendant.
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Case No: 4:13-cv-03953 SI


PLAINTIFFS NOTICE OF MOTION AND
MOTION FOR SUMMARY JUDGMENT


Date: Dec. 13, 2013
Time: 9:00 AM
Place: Courtroom 10, 19th Floor
Senior Judge: Susan Illston
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PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
CASE NO. 4:13-CV-03953 SI ii
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
NOTICE OF MOTION FOR SUMMARY JUDGMENT
MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1
INTRODUCTION ....................................................................................................................1
STATEMENT OF THE ISSUE .................................................................................................1
STATEMENT OF FACTS ........................................................................................................1
I. The Clean Air Act Requires EPA to Set National Ambient Air Quality
Standards to Protect Public Health. ....................................................................................1
II. The Promulgation of Area Designations Is a Critical Step in Implementing the
NAAQS. ...............................................................................................................................2
III. EPA Failed to Promulgate SO
2
Designations for All Areas by the Statutory
Deadline of June 3, 2013. ....................................................................................................3
JURISDICTION, NOTICE, VENUE, AND STANDING. .......................................................5
ARGUMENT .............................................................................................................................9
I. Legal Standard. . .........................................................................................................9
II. EPA Has Failed to Perform Its Non-Discretionary Duty of Promulgating All
Designations for the Standard by the Statutory Deadline. ..................................................9
CONCLUSION ........................................................................................................................10

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PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
CASE NO. 4:13-CV-03953 SI iii
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TABLE OF AUTHORITIES

CASES PAGE(S)
Am. Canoe Assn v. City of Louisa Water & Sewer Commn,
389 F.3d 536 (6th Cir. 2004) ...............................................................................................8
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) .............................................................................................................9
Ctr. for Biological Diversity v. Brennan,
571 F. Supp. 2d 1105 (N.D. Cal. 2007) ...............................................................................8
Ecological Rights Found. v. Pac. Lumber Co.,
230 F.3d 1141 (9th Cir. 2000) .............................................................................................7
Ethyl Corp. v. EPA,
306 F.3d 1144 (D.C. Cir. 2002) ...........................................................................................8
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
467 U.S. 837 (1984) .............................................................................................................7
Hall v. Norton,
266 F.3d 969 (9th Cir. 2001) ...............................................................................................7
Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) .............................................................................................................8
Hunt v. Wash. State Apple Adver. Commn,
432 U.S. 333 (1977) .............................................................................................................7
NRDC v. EPA,
507 F.2d 905 (9th Cir. 1974) ...............................................................................................7
NRDC v. N.Y. State Dept of Envtl. Conservation,
700 F. Supp. 173 (S.D.N.Y. 1988).....................................................................................10
NRDC v. Train,
545 F.2d 320 (2d Cir. 1976).................................................................................................9
Salmon Spawning & Recovery Alliance v. Gutierrez,
545 F.3d 1220 (9th Cir. 2008) .............................................................................................7
Sierra Club v. EPA,
129 F.3d 137 (D.C. Cir. 1997) .............................................................................................7


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PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
CASE NO. 4:13-CV-03953 SI iv
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STATUTES
28 U.S.C. 1391(e)(1)(A) ..........................................................................................................6
28 U.S.C. 1391(e)(1)(C) ..........................................................................................................6
42 U.S.C. 7401(a)(2) ................................................................................................................1
42 U.S.C. 7401(b)(1) ...............................................................................................................1
42 U.S.C. 7407(a) ..................................................................................................................10
42 U.S.C. 7407(d)(1)(A) ..........................................................................................................2
42 U.S.C. 7407(d)(1)(A)(i) ......................................................................................................2
42 U.S.C. 7407(d)(1)(A)(ii) .....................................................................................................2
42 U.S.C. 7407(d)(1)(A)(iii) ....................................................................................................2
42 U.S.C. 7407(d)(1)(B) .........................................................................................................6
42 U.S.C. 7407(d)(1)(B)(i) ................................................................................1, 2, 3, 5, 9, 10
42 U.S.C. 7407(d)(1)(B)(ii) .....................................................................................................3
42 U.S.C. 7407(d)(2) ...............................................................................................................5
42 U.S.C. 7407(d)(2)(A) ..................................................................................................1, 3, 8
42 U.S.C. 7407(d)(2)(A)(iii) ....................................................................................................8
42 U.S.C. 7408(a)(1)(A) ..........................................................................................................2
42 U.S.C. 7408(a)(1)(B) ..........................................................................................................2
42 U.S.C. 7409(a)(1) ................................................................................................................2
42 U.S.C. 7409(b)(1) ...............................................................................................................2
42 U.S.C. 7409(d)(1) ...............................................................................................................2
42 U.S.C. 7502(c) ....................................................................................................................3
42 U.S.C. 7503(a) ....................................................................................................................3
42 U.S.C. 7514(a) ................................................................................................................3, 7
42 U.S.C. 7514a(a)...............................................................................................................3, 7
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PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
CASE NO. 4:13-CV-03953 SI v
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42 U.S.C. 7604(a) ....................................................................................................................6
42 U.S.C. 7604(a)(2) ............................................................................................................1, 6
REGULATIONS
40 C.F.R. 50.17(a)....................................................................................................................4
FEDERAL REGISTER NOTICES
36 Fed. Reg. 8186 (Apr. 30, 1971) ............................................................................................4
75 Fed. Reg. 35,520 (June 22, 2010) ...........................................................................3, 4, 5, 10
77 Fed. Reg. 46,295 (Aug. 3, 2012).................................................................................5, 9, 10
78 Fed. Reg. 47,191 (Aug. 5 2013)....................................................................................2, 4, 5
OTHER AUTHORITIES
Fed. R. Civ. P. 56(a) ..................................................................................................................9
Fed. R. Civ. P. 56(c)(1)(A) ........................................................................................................9
H.R. Rep. No. 91-1146 (1970) ...................................................................................................1




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PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
CASE NO. 4:13-CV-03953 SI
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NOTICE OF MOTION FOR SUMMARY JUDGMENT
PLEASE TAKE NOTICE that on December 13, 2013, at 9:00 AM in Courtroom 10, 19th
Floor, 450 Golden Gate Avenue, San Francisco, CA 94102, plaintiffs Sierra Club and Natural
Resources Defense Council (collectively, Sierra Club or plaintiffs) will move this Court for
summary judgment pursuant to Federal Rule of Civil Procedure 56 on the basis of the points and
authorities presented below, the attached declarations and exhibits, the record of this action, and
argument that may be presented at the hearing on this motion.
Sierra Club filed this action to compel the Administrator of the U.S. Environmental
Protection Agency (Administrator or EPA) to take action mandated by the Clean Air Act, 42
U.S.C. 7401 et seq., to protect human health from sulfur dioxide (SO
2
) air pollution in
communities throughout the nation. In this motion for summary judgmentwhich is limited to
EPAs liability for violating the Clean Air Act (the Act)Sierra Club seeks an order determining
that EPA is in violation of its non-discretionary duty under the Act to promulgate and publish
designations for all areas of each state for the revised SO
2
national primary ambient air quality
standard no later than three years from the date of promulgation of the SO
2
standard. If the Court
grants Sierra Clubs motion, Sierra Club intends to request that the Court issue a mandatory
injunction requiring EPA to perform its mandatory duty by a date certain. Accordingly, Sierra Club
further requests that, if summary judgment is granted on liability, the Court set a briefing schedule
on the issue of remedy.
U.S. District Judge Susan Illstons standing order limits parties to one motion for summary
judgment. Although Sierra Club does not believe that, if this motion on liability is granted, the
subsequent briefing on remedy would constitute a second motion for summary judgment, to the
extent the Court might view it as such, Sierra Club requests leave to follow this procedure because it
will simplify and narrow the issues early in this case, provide for an orderly presentation of this
matter to the Court, and expedite resolution of the case.



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PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
CASE NO. 4:13-CV-03953 SI 1

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MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
EPAs continuing failure to promulgate and publish SO
2
designations for all areas violates
the Clean Air Act. The Act imposes a non-discretionary duty on EPA to promulgate and publish
designations for all areas in each state as expeditiously as practicable but no later than three years
after the promulgation of a new or revised national ambient air quality standard. 42 U.S.C.
7407(d)(1)(B)(i), (d)(2)(A). EPA promulgated a revised and more protective national ambient air
quality standard for SO
2
in June 2010. It is now more than three years past the date of the standards
promulgation, and EPA has failed to promulgate SO
2
designations for all areas of the country.
EPAs delay is unlawful.
STATEMENT OF THE ISSUE
Is EPAs ongoing failure to promulgate and publish SO
2
designations for all areas in each
state a failure of the Administrator to perform [an] act or duty under [the Clean Air Act] that is not
discretionary with the Administrator, 42 U.S.C. 7604(a)(2), where the outside deadline for
promulgating all designations was June 3, 2013?
STATEMENT OF FACTS
I. The Clean Air Act Requires EPA to Set National Ambient Air Quality
Standards to Protect Public Health.
Congress enacted the Clean Air Act to speed up, expand, and intensify the war against air
pollution in the United States with a view to assuring that the air we breathe throughout the Nation is
wholesome once again. H.R. Rep. No. 91-1146 at 1 (1970), reprinted in 1970 U.S.C.C.A.N. 5356,
5356. The Act was passed in light of Congresss finding that growth in the amount and complexity
of air pollution brought about by urbanization, industrial development, and the increasing use of
motor vehicles, has resulted in mounting dangers to the public health and welfare. 42 U.S.C.
7401(a)(2). A stated purpose of the Act is to protect and enhance the quality of the Nations air
resources so as to promote the public health and welfare. Id. 7401(b)(1).
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CASE NO. 4:13-CV-03953 SI 2

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To this end, the Act requires EPA to promulgate national ambient air quality standards
(NAAQS) for all criteria pollutants. Id. 7409(a)(1). Criteria pollutants are those pollutants that
EPA finds cause or contribute to air pollution which may reasonably be anticipated to endanger
public health or welfare and are emitted by numerous or diverse mobile or stationary sources. Id.
7408(a)(1)(A)-(B). The national ambient air quality standards establish maximum allowable
concentrations in the air of criteria pollutants. Primary (health) ambient air quality standards must
be set at a level requisite to protect the public health with an adequate margin of safety. Id.
7409(b)(1). Once EPA has established ambient air quality standards for criteria pollutants, EPA is
obligated to review and (as appropriate) revise those standards at five-year intervals. Id.
7409(d)(1).
II. The Promulgation of Area Designations Is a Critical Step in Implementing the NAAQS.
The promulgation of a national ambient air quality standard triggers mandatory statutory
timetables for designating all areas of the country based on whether they comply with the new or
revised standard. Within one year of promulgation of a new or revised air quality standard, the
governor of each state must submit to EPA a list of recommended designations for all areas (or
portions thereof) in the state as nonattainment, attainment, or unclassifiable for that standard.
1
42
U.S.C. 7407(d)(1)(A). The Clean Air Act defines a nonattainment area as any area that does not
meet (or that contributes to ambient air quality in a nearby area that does not meet) the [NAAQS] for
the pollutant. Id. 7407(d)(1)(A)(i). An attainment area is any area . . . that meets the [NAAQS]
for the pollutant. Id. 7407(d)(1)(A)(ii). An unclassifiable area is any area that cannot be
classified on the basis of available information as meeting or not meeting the [NAAQS] for the
pollutant. Id. 7407(d)(1)(A)(iii).
EPA must then promulgate final designations for all areas in each state, with whatever
modifications to the states submissions EPA deems necessary, as expeditiously as practicable, but
in no case later than 2 years from the date of promulgation of the new or revised [NAAQS]. Id.

1
With regard to the SO
2
standard, EPA interprets the all areas (or portions thereof) language
to mean that it is permitted to set attainment, nonattainment, and unclassifiable designations for areas
based on full or partial county boundaries, and contiguous or non-contiguous areas, as may be
appropriate. See, e.g., 78 Fed. Reg. at 47,194/1-95/2.
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7407(d)(1)(B)(i). If the governor of a state fails to submit the list of designations in whole or in
part, EPA is required to promulgate the designation that it deems appropriate for any area (or portion
thereof) not designated by the state. Id. 7407(d)(1)(B)(ii). EPA may extend the two-year deadline
for up to one year in the event the Administrator has insufficient information to promulgate the
designations. Id. 7407(d)(1)(B)(i). Thus, at the outside, EPA must promulgate designations for
all areas of every state within three years after the promulgation of a new or revised national ambient
air quality standard. Id. EPA must publish notice in the Federal Register promulgating those
designations. Id. 7407(d)(2)(A).
EPAs promulgation of area designations initiates several important steps to implement the
national ambient air quality standards. Among other things, designation of an area as nonattainment
triggers the following requirements: a) an 18-month deadline for states to submit plans setting forth
how all nonattainment areas in the state will attain the standard; b) a requirement that such plans
provide for attainment of the standard as expeditiously as practicable, but no later than five years
from the date of designation; and c) a requirement that such plans provide for implementation of all
reasonably available pollution control measures as expeditiously as practicable, including, at a
minimum, such reductions from existing sources in the area as may be obtained through the adoption
of reasonably available pollution control technology. Id. 7502(c)(1), 7514(a), 7514a(a); see also
Exh. F, Walke Decl. 14. Because an areas designation also determines the stringency of the
permitting requirements for certain sources of air pollution, EPAs designation of an area as
nonattainment will also cause more rigorous permitting requirements to become applicable to certain
sources in that area. 42 U.S.C. 7503(a); see also Exh. F, Walke Decl. 15.
III. EPA Failed to Promulgate SO
2
Designations for All Areas by the Statutory Deadline of
June 3, 2013.
SO
2
is a dangerous criteria air pollutant for which EPA must establish national ambient air
quality standards. SO
2
has numerous harmful effects on human respiratory systems, including
narrowing of the airways that can constrict breathing (bronchoconstriction) and increased asthma
symptoms. 75 Fed. Reg. 35,520, 35,525/3-26/1 (June 22, 2010) (codified at 40 C.F.R. pts. 50, 53,
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and 58). Short-term exposure to SO
2
has also been linked to increased hospital and emergency room
admissions for respiratory illness, particularly among children, the elderly, and asthmatics. Id. at
35,525/1-27/3; 78 Fed. Reg. 47,191, 47,193/2-3 (Aug. 5, 2013) (to be codified at 40 C.F.R. pt. 81).
Even exposure to SO
2
for just five minutes can damage the functioning of the lungs. 75 Fed. Reg. at
35,525/3-26/1, 35,536/2. Individuals who spend time outdoors, especially when active, are at higher
risk of harm. Id. at 35,527/2.
EPA first set ambient air quality standards for SO
2
in 1971, establishing a 24-hour primary
standard at 140 parts per billion (ppb), and an annual average standard at 30 ppb. See 36 Fed.
Reg. 8186 (Apr. 30, 1971). Four decades later, on June 2, 2010, in light of extensive scientific
evidence that the 1971 primary standard did not adequately safeguard public health from SO
2

pollution, EPA promulgated a new one-hour SO
2
standard at a level of 75 ppb (the standard). 75
Fed. Reg. at 35,520/1, 35,525/1-29/3 (signed June 2, 2010, published June 22, 2010); see also 40
C.F.R. 50.17(a). At the same time, EPA revoked the previous 24-hour and annual primary
standards since they would not provide additional public health protection given the more stringent
one-hour standard. See 75 Fed. Reg. at 35,520.
2

EPA estimated that implementation of the revised standard would prevent, annually, up to
5,900 premature deaths, 3,900 heart attacks, 54,000 cases of asthma exacerbation, and 290,000 lost
work days. EPA, Revisions to the Primary National Ambient Air Quality Standard, Monitoring
Network and Data Reporting Requirements for Sulfur Dioxide (SO
2
), General Overview at 20-21
(June 2010), available at
http://www.epa.gov/oaqps001/sulfurdioxide/pdfs/20100603presentation.pdf; EPA, Final Regulatory
Impact Analysis (RIA) for the SO
2
National Ambient Air Quality Standards (NAAQS) 5-35 tbl.5.14
(June 2010), available at http://www.epa.gov/ttnecas1/regdata/RIAs/fso2ria100602full.pdf.
Adoption of the revised standard triggered EPAs non-discretionary duty to promulgate and
publish designations under the standard for all areas of each state as expeditiously as practicable, but

2
Scientific studies reviewed by EPA in formulating the standard even reported adverse effects
for short-term, one-hour exposures to levels of SO
2
at about 50 ppbwell below the 75 ppb standard
EPA ultimately adopted. 75 Fed. Reg. at 35,543/2.
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no later than June 2, 2012two years from the standards adoption.
3
42 U.S.C. 7407(d)(1)(B)(i),
(d)(2); 75 Fed. Reg. at 35,552/1, 35,585/2. EPA missed this deadline. Two months past the
deadline, on August 3, 2012, EPA invoked its authority under 42 U.S.C. 7407(d)(1)(B)(i) to extend
by one year the deadline for promulgating area designations for the standard and identified a new
deadline for completing designations of June 3, 2013.
4
See 77 Fed. Reg. 46,295, 46,295/1, 46,297/2-
3 (Aug. 3, 2012). Even with the one-year extension, EPA failed to promulgate any SO
2
designations
by June 3, 2013. Answer 29.
Two months later, on August 5, 2013, EPA published SO
2
designations for just a handful of
areas across the country, finding those areas to be in nonattainment for the standard based on
monitored air quality data. See 78 Fed. Reg. 47,191. EPAs area designations covered only 29 areas
in just 16 states, which comprise approximately one percent or less of the total number of air quality
areas in the country. Id. at 47,193/1; U.S. Geological Survey, How Many Counties Are There in the
United States? (Jun. 9, 2013), http://gallery.usgs.gov/audios/124 (identifying over 3,200 counties
and county equivalents in the United States). In its August 2013 action, EPA expressly stated that it
intended to address designations for the remaining areas in separate future actions. 78 Fed. Reg. at
47,191/3. To date, EPA has not promulgated designations for any of the thousands of areas that
remain undesignated. Exh. F, Walke Decl. 13.
JURISDICTION, NOTICE, VENUE, AND STANDING
This Court has jurisdiction under the Clean Air Acts citizen suit provision, which authorizes
district courts to hear actions brought by any person to compel EPAs performance of any act or
duty under the Act which is not discretionary with [EPA]. 42 U.S.C. 7604(a), (a)(2). EPAs
failure to timely promulgate all area designations is a failure to perform an act which is not
discretionary, as the Administrators duty to promulgate such designations within the required time

3
EPA stated that it will make initial area designations under the revised NAAQS by June 1,
2012 (since June 2, 2012 would be on a Saturday). 75 Fed. Reg. at 35,585/2.
4
Although the Administrator signed the final rule promulgating the standard on June 2, 2010,
EPA has taken the position that the standard was not promulgated until June 3, 2010 because it was
not publicly disseminated until that day, and that the deadline should be calculated from June 3,
2010. See 77 Fed. Reg. at 46,295 n.1. Because the difference is immaterial for this motion, Sierra
Club will refer to June 3, 2013 as the deadline.
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frame is expressed in non-discretionary terms. 42 U.S.C. 7407(d)(1)(B) (the Administrator shall
promulgate the designations of all areas within two years of NAAQS promulgation, with possible
additional one-year extension).
Plaintiffs satisfied the statutory notice requirements for bringing this action. By certified
letters posted on June 4, 2013, and June 25, 2013, plaintiffs served written notice on EPA of its
failure to perform the mandatory duty of promulgating all area designations by the statutory
deadline, and of plaintiffs intent to initiate the present action, in compliance with 42 U.S.C.
7604(b)(2) and 40 C.F.R. 54.2, 54.3.
5
See EPA, Notices of Intent to Sue the U.S. Environmental
Protection Agency (EPA) (Sept. 17, 2013), http://epa.gov/ogc/noi.html. More than 60 days have
passed since the notices were served, and EPA has continued its failure to fulfill its mandatory duty.
Venue is proper in this Court because plaintiff Sierra Club has its headquarters in this district,
plaintiff NRDC has an office in this district, and this district is one in which EPA resides and
performs its official duties. 28 U.S.C. 1391(e)(1)(A), (C). Venue is also proper because (1) a
substantial part of the events and omissions giving rise to this claim occurred and is occurring in this
district because EPA failed to promulgate any designations for this district; (2) the health and
welfare of district residents, including members of Sierra Club and NRDC, Exh. G, Andersen Decl.
4(f), Exh. D, Lopez Decl. 8, are threatened by EPAs failure to make designations; and (3) EPAs
Regional Office in San Francisco, California has a substantial role in implementing the duty at issue.
28 U.S.C. 1391(e)(1)(B). See EPA, 2010 Sulfur Dioxide Standards Region 9 Initial
Nonattainment Designations (Jul. 25, 2013), http://www.epa.gov/so2designations/region9i.html;
EPA, 2010 Sulfur Dioxide Standards Region 9 State Recommendations and EPA Responses (Jul.
25, 2013), http://www.epa.gov/so2designations/region9r.html.
Sierra Club and NRDC have associational standing to bring this suit because their members
would have standing to sue in their own right, plaintiffs interest in safeguarding public health is
germane to their organizational purposes, Exh. S, Nilles Decl. 3, Exh. F, Walke Decl. 4-5, and

5
Plaintiffs served the June 25 notice out of an abundance of caution. Although EPA itself
treated the revised standard as being promulgated on June 2, 2010, the revision was not published in
the Federal Register until June 22, 2010. Plaintiffs filed the June 25 notice to avoid any argument
that the June 2 notice was premature.
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PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
CASE NO. 4:13-CV-03953 SI 7

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this suit will not require individual participation of members. Hunt v. Wash. State Apple Adver.
Commn, 432 U.S. 333, 343 (1977). Plaintiffs have members who live, work, recreate, and carry out
other activities near sources of SO
2
pollution in areas not yet designated for the SO
2
standard such
that those members are exposed or threatened with exposure to SO
2
pollution that may well violate
the standard. See Exhs. C-X, Declarations, attached. Such SO
2
pollution endangers plaintiffs
members health and also adversely impacts their enjoyment of outdoor activities by causing
members to limit the time they spend outdoors or to avoid recreating in areas they would like to
visit. See Exhs. C-X, Declarations; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 181-84 (2000) (environmental group has standing where members use area impacted
by pollutant discharges and aver reasonable concerns about the effects of those discharges on their
recreational, aesthetic, and economic interests).
6

EPAs failure to timely promulgate designations causes procedural injury to plaintiffs and
their members. The Acts procedure for promulgating all area designations within a maximum of
three years is designed to protect plaintiffs members concrete interests in breathing clean air. See
Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1225-26 (9th Cir. 2008)
(environmental group had standing where agency violated procedural requirement designed to
protect groups concrete interests in welfare of endangered species). Promulgation of nonattainment
designations triggers deadlines for adoption of measures to curb SO
2
pollution and for attainment of
the more protective revised SO
2
standard. 42 U.S.C. 7514(a), 7514a(a). EPAs continuing failure
to complete designations delays this process, postponing required steps to reduce unsafe levels of
SO
2
pollution, and thereby prolonging plaintiffs members exposure to harmful SO
2
pollution. Exh.
S, Nilles Decl. 8-11; Exh. F, Walke Decl. 14-19. Moreover, EPAs failure to complete the

6
See also Hall v. Norton, 266 F.3d 969, 973-74, 976 (9th Cir. 2001) (individual has standing
where he faces a threat of harm from air pollution when traveling, shopping, and carrying out other
activities in polluted area); Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1149-50
(9th Cir. 2000) (environmental group has standing where members recreational interests in using
creek is diminished by concerns about discharges of pollution by nearby facility); NRDC v. EPA,
507 F.2d 905, 908, 910-11 (9th Cir. 1974) (individual has standing based on concern EPAs
approval of state implementation plan may result in air less pure than that mandated by the Clean
Air Act); Sierra Club v. EPA, 129 F.3d 137, 139 (D.C. Cir. 1997) (environmental group with
members in nonattainment areas has standing to challenge EPAs temporary suspension of Clean Air
Act review requirements in such areas).
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PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
CASE NO. 4:13-CV-03953 SI 8

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designations process deprives plaintiffs and their members of their procedural right to judicially
challenge any final designations that they contend are unlawful or arbitrary. An order compelling
EPA to make the designations by a certain date will redress the foregoing injuries.
EPAs failure to publish designations also deprives plaintiffs and their members of the
informational benefits of the designations and thereby causes them injury, which would be redressed
by an order compelling EPA to act. See Ctr. for Biological Diversity v. Brennan, 571 F. Supp. 2d
1105, 1118 (N.D. Cal. 2007); Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir. 2002). EPAs
SO
2
designationswhich must be published, 42 U.S.C. 7407(d)(2)(A)convey information about
the quality of air in every area of the country, or, for areas designated unclassifiable, about the
available information for evaluating air quality in those areas. Id. 7407(d)(1)(A)(iii). This
information is essential to the ability of plaintiffs to carry out their daily operations and fulfill their
institutional missions and would be used by plaintiffs for public education and advocacy. Exh. S,
Nilles Decl. 12-14; Exh. F, Walke Decl. 20-21; see also Am. Canoe Assn v. City of Louisa
Water & Sewer Commn, 389 F.3d 536, 546 (6th Cir. 2004). This information would also help
plaintiffs members determine whether they are being exposed to unsafe SO
2
levels and allow them
to take actions to limit their exposure and advocate for further air quality safeguards. See Exhs. C-X,
Declarations; Am. Canoe, 389 F.3d at 542.
In addition, EPAs failure to complete designations has caused Sierra Club to divert
organizational resources to implementing the revised standard and has frustrated its mission of
achieving the pollution reductions warranted by the more protective one-hour standard for which
plaintiffs have long advocated. Exh. S, Nilles Decl. 13-14; Havens Realty Corp. v. Coleman, 455
U.S. 363, 378-79 (1982). For example, Sierra Club has commissioned air dispersion modeling
analyses for numerous coal-fired facilities across the country in order to ascertain whether those
facilities impact attainment of the SO
2
standard, and to advocate for stronger emission limits where
necessary to protect human health and the environment. Exh. S, Nilles Decl. 14.


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PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
CASE NO. 4:13-CV-03953 SI 9

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ARGUMENT
Summary judgment for Sierra Club on the issue of liability is warranted as a matter of law.
There can be no dispute that EPA had a non-discretionary duty under the Clean Air Act to
promulgate and publish designations under the revised SO
2
standard of all areas of each state as
expeditiously as practicable, but in no case later than June 3, 2013, and that EPA failed to and
continues to fail to carry out that duty.
I. Legal Standard.
Under Federal Rule of Civil Procedure 56, summary judgment must be granted when,
viewing the facts in the light most favorable to the nonmoving party, the records show that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). Once the moving party has satisfied its burden, it is entitled to summary
judgment if the non-moving party fails to cite specific facts showing that there is a genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); accord Fed. R. Civ. P. 56(c)(1)(A).
II. EPA Has Failed to Perform Its Non-Discretionary Duty of Promulgating All
Designations for the Standard by the Statutory Deadline.
EPA had a mandatory duty under the Clean Air Act to promulgate and publish designations
of all areas in each state for the standard by the statutory deadline, and it failed to do so.
Congress commanded that, upon revision of a national ambient air quality standard, EPA
shall promulgate the designations of all areas (or portions thereof) [in each state] as expeditiously
as practicable, but in no case later than 2 years from the date of promulgation of the new or revised
national ambient air quality standard, permitting up to a one-year extension in the event the
Administrator has insufficient information to promulgate the designations. 42 U.S.C.
7407(d)(1)(B)(i); see also 77 Fed. Reg. at 46,295/1 (acknowledgment by EPA of this statutory
requirement). On its face, the duty to promulgate all designations by the precise schedules set forth
in the Act is non-discretionary. See NRDC v. Train, 545 F.2d 320, 325, 327 (2d Cir. 1976) (holding
that EPA had non-discretionary duty under Clean Air Act where statute used the mandatory term
shall and included a specific timetable for attainment of air quality standards). Moreover, EPA
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has conceded through its own public statements that it was required to promulgate the designations
by the deadline. See 77 Fed. Reg. at 46,295 (The new deadline for the EPA to promulgate
designations for the 2010 primary SO
2
NAAQS is June 3, 2013. . . . [T]he EPA must promulgate the
designation that the agency deems appropriate within two years of promulgation of the NAAQS (or
within 3 years if the EPA extends the deadline). (emphasis added)); see also id. at 46,297/2-3; 75
Fed. Reg. at 35,552/1, 35,585/2; NRDC v. N.Y. State Dept of Envtl. Conservation, 700 F. Supp. 173,
178 (S.D.N.Y. 1988) (EPA statement implicitly conceded EPAs duty to act).
The mandatory designations for the standard are overdue. EPA adopted the standard on June
2, 2010, which made the promulgation of all area designations due no later than two years from that
date, on June 1, 2012. See 42 U.S.C. 7407(d)(1)(B)(i); 75 Fed. Reg. at 35,585/2. After missing
that deadline, EPA invoked its authority to extend the deadline for one year and identified the new
deadline as June 3, 2013. See 77 Fed. Reg. at 46,295/1. Yet EPA did not take any action until
August 5, 2013, and then it only promulgated designations for a few geographic areas, leaving the
vast majority of the country without designations and in limbo. Answer 30, 32. EPAs failure to
complete all area designations is continuing. These facts are beyond dispute.
EPAs failure to promulgate designations for all areas in each state thwarts the Clean Air
Acts mandate to assure the air quality within each states entire geographic area will achieve and
maintain the primary national ambient air quality standard for SO
2
. See 42 U.S.C. 7407(a); Exh. S,
Nilles Decl. 8; Exh. F, Walke Decl. 14-16.
Because it is undisputed that EPA has not promulgated all area designations for the standard
by the statutory deadline or to datea non-discretionary duty mandated by the Clean Air Act
Sierra Club is entitled to summary judgment finding EPA liable for violating the law.
CONCLUSION
For the foregoing reasons, Sierra Club respectfully requests the Court grant its motion for
summary judgment and find EPA liable for failing to take the non-discretionary act of promulgating
and publishing designations of all areas in each state for the revised SO
2
standard. If the Court
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PLAINTIFFS NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT
CASE NO. 4:13-CV-03953 SI 11

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grants such summary judgment, Sierra Club further requests that the Court set a schedule for briefing
on the issue of remedy.


DATED: October 29, 2013 Respectfully submitted,


/s/ David S. Baron

DAVID S. BARON, Admitted Pro Hac Vice
Earthjustice
1625 Massachusetts Ave, STE 702
Washington, DC 20036
dbaron@earthjustice.org
Tel: 202-667-4500/Fax: 202-667-2356

PAUL R. CORT, State Bar No. 184336
Earthjustice
50 California Street
San Francisco, CA 94111
pcort@earthjustice.org
igutierrez@earthjustice.org
Tel: 415-217-2000/Fax: 415-217-2040


Counsel for Plaintiffs


ZACHARY M. FABISH, State Bar No. 247535
Staff Attorney
The Sierra Club
50 F Street, NW - 8th Floor
Washington, DC 20001
zachary.fabish@sierraclub.org
Tel: 202-675-7917/Fax: 202-547-6009


Counsel for Plaintiff Sierra Club

Case3:13-cv-03953-SI Document55 Filed10/29/13 Page17 of 17