GINA McCARTHY, Administrator of the United States Environmental Protection Agency,
Defendant. /
EPAS REPLY IN SUPPORT OF MOTION TO HOLD CASE IN ABEYANCE
Defendant Gina McCarthy, Administrator of the United States Environmental Protection Agency (EPA), hereby submits this reply in support of EPAs motion to hold this matter in abeyance (ECF No. 19). As explained in EPAs motion, there are three suits pending in three different district courts that all seek to compel the Administrator to perform the same alleged nondiscretionary duty under the Clean Air Act (CAA): to complete designations of areas of the country as attaining, not attaining, or being unclassifiable under the 2010 revised primary National Ambient Air Quality Standard (NAAQS) for sulfur dioxide (SO 2 ) as required by CAA Section 107(d)(1)(B), 42 U.S.C. 7407(d)(1)(B). ECF No. 19 at 2. Case 1:13-cv-00109-DLH-CSM Document 26 Filed 04/04/14 Page 1 of 7 2
Plaintiffs the States of North Dakota, Nevada, and Texas, joined by the States of Arizona and Kentucky, are all also parties in the first filed suit, in which the District Court for the Northern District of California has entered summary judgment as to the Administrators liability. Id. at 2-3. The States of North Dakota, Nevada, and Texas are also represented by the same counsel in this case and in the Northern District of California matter. Moreover, the State of North Carolina, also a party in the Northern District Court of California case, filed its own unopposed motion to hold in abeyance its separate case filed in the Eastern District of North Carolina, which the court there granted. The parties in the Northern District of California matter are currently in the process of briefing the appropriate remedy. In order to conserve the resources of the courts and the parties, EPA has moved for a stay of this action, similar to the stay entered by the District Court for the Eastern District of North Carolina in response to the State of North Carolinas motion. Id. at 4-5. ARGUMENT It is well-established that a trial court has the inherent power to stay proceedings to control its docket, to conserve judicial resources, and to ensure that each matter is handled with economy of time and effort for itself, for counsel, and for litigants. United States v. Minnkota Power Co-op, Inc., 831 F. Supp. 2d Case 1:13-cv-00109-DLH-CSM Document 26 Filed 04/04/14 Page 2 of 7 3
1109, 1118 (D.N.D. 2011) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Here, it would be inefficient and a burden on both the Courts and the parties resources to have duplicative litigation proceeding in two separate district courts, with differing degrees of progress in addressing the issues to be resolved, and with partially overlapping but partially different sets of parties. It would be far more efficient to allow the first filed and more advanced case, in which all parties in all three cases are parties (except for Plaintiff South Dakota), to progress to resolution. In response to EPAs motion, Plaintiff South Dakota the one party in the instant case who chose not to intervene in the Northern District of California case argues that to hold this case in abeyance would force it out of its chosen forum. ECF No. 22 at 4. However, a party is not guaranteed an absolute right to choose the forum in which a matter will be heard. See, e.g., 28 U.S.C. 1401(a) (authorizing transfer between district courts); Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805 (1964) (recognizing that 28 U.S.C. 1401(a) is meant to avoid unnecessary inconvenience to the litigants, witnesses, and the public, and to conserve time, energy, and money). There is likewise no guarantee that this Court would resolve the instant suit on both liability and remedy before the Northern District of California court reaches a decision as to the appropriate remedy. In the Case 1:13-cv-00109-DLH-CSM Document 26 Filed 04/04/14 Page 3 of 7 4
case management conference held before this Court on J anuary 13, 2014, Plaintiff South Dakota acknowledged that it had not sought to intervene in the first filed of the three nondiscretionary duty suits, and that it knew of no reason the Northern District of California court would deny intervention. In light of the fact that the Court in the Northern District of California allowed instant Plaintiffs North Dakota, Nevada and Texas, along with Louisiana, Kentucky, Arizona and North Carolina, to intervene in the first filed nondiscretionary duty suit, it would be a hardship to require EPA to simultaneously defend the same claim in two courts, especially given the State of North Carolinas recognition that proceeding in its own separate case was an inefficient use of judicial resources. Moreover, there is a distinct possibility that the different district courts could reach different decisions as to what schedule EPA should be operating under either nationally or with respect to specific states which would cause confusion for both the Agency and the parties involved. As Plaintiffs North Dakota, Nevada, and Texas are aware, the Northern District of California case has had a schedule in place for briefing the remedy phase of the case since J anuary 2014, and the parties to that action have been in ongoing settlement discussions since December 2013 while simultaneously proceeding to brief remedy. See Sierra Club v. McCarthy, N.D. Cal. Case No. Case 1:13-cv-00109-DLH-CSM Document 26 Filed 04/04/14 Page 4 of 7 5
3:13-cv-3953-SI, ECF Nos. 85, 89. 1 That court has also scheduled a hearing on the remedy for May 30, 2014. Any remedy that is stipulated to or ordered in the Sierra Club matter in the Northern District of California case would address the concerns that EPA anticipates the Plaintiffs would raise in this matter, and would obviate the need to litigate the issues again before this Court. EPA further anticipates that the remedy will likely be entered or decided by the district court in Sierra Club before the same issue could be briefed and decided by this Court. For these reasons of economy of resources of both the parties and the judicial system, EPA respectfully requests that the Court order that: 1. this matter be held in abeyance; 2. all pending deadlines be continued; 3. the parties file a joint status report within 120 days of the date of this Courts order, setting forth any developments in the Sierra Club matter (or any other related matter) that may affect the status of this case;
1 The briefing schedule was briefly extended on the motion of the States of North Dakota, Nevada, Texas, and other Intervenor-Plaintiffs. See Sierra Club v. McCarthy, N.D. Cal. Case No. 3:13-cv-3953-SI, ECF No. 88 at 1. Case 1:13-cv-00109-DLH-CSM Document 26 Filed 04/04/14 Page 5 of 7 6
4. any party be allowed at any time to move this Court for an order terminating, in whole or in part, the order of the Court holding the matter in abeyance. Dated: April 4, 2014 Respectfully Submitted, /s/ Martha C. Mann Martha C. Mann United States Department of J ustice Environmental & Natural Resources Division P.O. Box 7611 Washington, D.C. 20044 martha.mann@usdoj.gov Tel: 202.514.2664
Of Counsel:
Michael Thrift United States Environmental Protection Agency Office of General Counsel Air and Radiation Law Office (2344-A) 1200 Pennsylvania Ave., N.W. Washington D.C. 20460
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I caused a true and correct copy of the foregoing to be electronically filed on April 4, 2014. All registered counsel are to receive notice of the filing via the Courts electronic case filing system.
/s/ Martha C. Mann MARTHA C. MANN United States Department of J ustice Environment and Natural Resources Division
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