WildEarth Guardians v. McCarthy

The Environmental Protection Agency Administrator does not have a non-discretionary duty to issue regulations regarding updates to the Clean Air Act.

WildEarth Guardians, Midwest Environmental Defense Center, and Sierra Club (collectively “plaintiffs”) brought suit against the Environmental Protection Agency (“EPA”) in an attempt to force the EPA Administrator to revise administrative rules regarding ozone pollution. The Clean Air Act includes a citizen-suit provision, which allows suits against the EPA Administrator for non-discretionary actions. Plaintiffs alleged that issuing regulations is a non-discretionary duty. The district court dismissed the suit for lack of subject matter jurisdiction because while the Clean Air Act allows the Administrator to issue regulations, deciding to do so is discretionary. In 1977, the Clean Air Act was amended to include the Prevention of Significant Deterioration (“PSD”) program, which includes a provision that requires the Administrator to promulgate regulations regarding certain air pollutants. On appeal, plaintiffs argued that each time Congress sets a limit as to how much of a pollutant is allowed to be in the air, the Administrator is required to issue regulations. The Ninth Circuit read the PSD more narrowly, and determined that the non-discretionary rulemaking only referred to pollutants identified before 1979, and not to newly added chemicals. AFFIRMED.