United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2002 Decided April 5, 2002
Nos. 01-5123 & 01-5299
Sierra Club and
Missouri Coalition for the Environment,
Appellants
v.
Christine Todd Whitman, Administrator, EPA, et al.,
Appellees
Appeals from the United States District Court
for the District of Columbia
(98cv02733)
Douglas R. Williams argued the cause for appellants.
With him on the briefs were Lewis C. Green and Joseph
Mendelson III.
Ronald M. Spritzer, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
John C. Cruden, Assistant Attorney General, Greer S. Gold-
man and Eileen T. McDonough, Attorneys. Kathryn E.
Kovacs, Attorney, entered an appearance.
James E. Ryan, Attorney General, and A. Benjamin Gold-
gar, Assistant Attorney General, State of Illinois; Jeremiah
W. (Jay) Nixon, Attorney General, State of Missouri, and
James R. Layton, State Solicitor, were on the brief for
appellees State of Illinois and State of Missouri.
Bradley S. Hiles was on the brief for appellees Associated
Industries of Missouri, Inc., et al.
Before: Henderson, Randolph, and Rogers, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: The complicated procedural his-
tory of these consolidated appeals from the district court
masks the simplicity of the three issues presented. In light
of the complexities, a summary of these issues would serve no
useful purpose at this point. We will begin instead with an
abbreviated account of how the cases reached this court.
I.
More than a decade ago, the Environmental Protection
Agency designated St. Louis, Missouri a "nonattainment"
area of "moderate" classification for ozone. See 56 Fed. Reg.
56,694, 56,751, 56,788 (Nov. 6, 1991) (codified at 40 C.F.R.
ss 81.314, 81.326). As a consequence of EPA's designation,
Missouri and Illinois had to revise their state implementation
plans to attain the primary standard for ozone, 42 U.S.C.
s 7511a(a); the time for attainment became November 15,
1996, see 42 U.S.C. s 7511(a)(1) tbl.1; and EPA had to
determine, within six months of the attainment date (by about
May 15, 1997), whether St. Louis had reached the primary
standard. See 42 U.S.C. s 7511(b)(2)(A). If St. Louis were
not in attainment, the Clean Air Act directed EPA to reclassi-
fy the area--to the "serious" level, or a higher level applicable
to the area's "design value" (as calculated by EPA using
readings from the area)--and to publish a notice of nonattain-
ment in the Federal Register within the same six month
window. See id. s 7511(b)(2)(A)(i)-(ii) & (B).
The higher an area's nonattainment classification, the more
stringent and numerous are the requirements placed upon the
States to take action to improve the region's air quality. See
generally 42 U.S.C. s 7511a. If, for instance, St. Louis's
classification were at the "serious" level, Illinois and Missouri
would have to implement an "enhanced" vehicle inspection
and maintenance program to reduce hydrocarbon and nitro-
gen oxide emissions from motor vehicles. See 42 U.S.C.
s 7511a(c)(3).
In November 1998, after giving EPA notice, the Sierra
Club filed a complaint, invoking the Act's citizen-suit provi-
sion. 42 U.S.C. s 7604(a)(2). The complaint alleged that
EPA had not performed its nondiscretionary duty to publish
a timely notice of nonattainment in the Federal Register and
a notice of the reclassification of St. Louis's ozone status.
The argument was in the alternative: either EPA had made a
determination of nonattainment and failed to publish it, or
EPA had not made a determination although the Act required
it to do so. EPA admitted that it had not made the required
determination. After permitting the States of Missouri and
Illinois and several associations to intervene as defendants,
the court ordered EPA to make a determination of St. Louis's
ozone air quality attainment status by March 12, 2001, and to
publish any required notices in the Federal Register by
March 20, 2001. Sierra Club v. Browner, 130 F. Supp. 2d 78,
95 (D.D.C. 2001) (amended by order on Feb. 14, 2001). The
court refused to order EPA to make its determination retro-
active, as the Sierra Club had urged, and it rejected the
argument that the EPA had already made the attainment
determination, as the Sierra Club also argued. See id. at 90-
94.
On March 19, 2001, EPA published a notice of its determi-
nation that the St. Louis area had failed to attain the primary
ozone standard by November 15, 1996, and that reclassifica-
tion by operation of law to the "serious" category would occur
on the effective date of the rule, May 18, 2001. See 66 Fed.
Reg. 15,578. On the same day, EPA proposed another rule
that would delay the effective date of the March 19 determi-
nation until June 29, 2001. See 66 Fed. Reg. 15,591. Shortly
thereafter, EPA issued a notice of proposed rulemaking to
extend the attainment date until November 15, 2004, and to
withdraw the March 19, 2001, reclassification and nonattain-
ment determinations. See 66 Fed. Reg. 17,647 (Apr. 3, 2001).
The Sierra Club petitioned this court for a writ of prohibition
on the proposed rules, which we denied. See In re Sierra
Club, No. 01-1141, 2001 WL 799956, at *1 (D.C. Cir. June 8,
2001). After EPA finalized these proposed rules, see 66 Fed.
Reg. 27,036 (May 16, 2001) & 66 Fed. Reg. 33,996 (June 26,
2001), the Sierra Club petitioned for judicial review in the
Seventh Circuit of the two rulemakings; its petitions are still
pending. The Sierra Club also filed a motion in the district
court to enforce the court's judgment, claiming that EPA's
rulemakings regarding St. Louis's attainment status and its
time limits violated the order. The district court denied the
motion. We consolidated the Sierra Club's appeal from the
denial of its motion with its appeal from the district court's
original order.
II.
The Sierra Club's first argument is that before this lawsuit
began EPA had already taken final agency action by deter-
mining that St. Louis had failed to attain the required ozone
standard. As evidence, it cites several documents, including
most prominently a March 1998 letter from the EPA Admin-
istrator to the Governor of Missouri discussing St. Louis's air
quality. The relevant portion of the letter is as follows:
In recent years, Missouri has employed a variety of
stationary source and fuel regulations which have result-
ed in improved air quality for the St. Louis area. While
this progress is positive, it has not been sufficient to
solve the air quality problem in the area. As you know,
we have been considering whether to reclassify the St.
Louis area's nonattainment status from moderate to seri-
ous. Recent air quality improvements and Missouri's
commitments to implement an enhanced vehicle emis-
sions inspection program, and opt into the Federal refor-
mulated gasoline (RFG) program, are among the factors
being considered.
While the Sierra Club thinks this excerpt reflects EPA's final
determination that St. Louis was not in attainment for ozone,
the last two sentences indicate otherwise. Besides, EPA has
maintained throughout this litigation that it makes nonattain-
ment determinations and reclassifications simultaneously and
only through rulemaking. The Sierra Club counters that
under the Clean Air Act and the Administrative Procedure
Act the agency must proceed by adjudication rather than
rulemaking, despite the fact that the Clean Air Act requires
EPA determinations to be published in the Federal Register.
42 U.S.C. s 7511(b)(2)(B). This misses the point. No matter
what the Sierra Club thinks the Clean Air Act or the APA
required of EPA, the fact remains that "EPA's established
practice for making a final decision concerning nonattainment
and reclassification is to conduct a rulemaking under the
APA, not to issue a letter, a list, or some other informal
document." Brief of Appellee at 28; see, e.g., 63 Fed. Reg.
8128 (Feb. 18, 1998) (Dallas-Fort Worth nonattainment deter-
mination); 62 Fed. Reg. 65,025 (Dec. 10, 1997) (Santa Bar-
bara); 62 Fed. Reg. 60,001 (Nov. 6, 1997) (Phoenix). In other
words, if there has not been a rulemaking there has not been
an attainment determination. More than that, if the Sierra
Club were right that in this case EPA took the alternative
route of adjudication, see NLRB v. Bell Aerospace Co., 416
U.S. 267, 294 (1974); Public Util. Dist. No. 1 v. FERC, 272
F.3d 607, 620 (D.C. Cir. 2001) (per curiam), there is no
explaining the absence of anything to indicate that such an
adjudication occurred, or when. Still further, to credit the
Sierra Club's argument would require us to assume that the
adjudication took place in secret, without notice to the States
of Missouri and Illinois, and without their participation, per-
haps in violation of the Due Process Clause of the Constitu-
tion, see generally Henry J. Friendly, Some Kind of Hearing,
123 U. Pa. L. Rev. 1267 (1975), and that EPA then kept the
determination in its pocket and deprived it of legal effect by
failing to publish it in the Federal Register. The scenario
may not be impossible, but it is surely incredible. We
constantly remind agencies to draw only rational inferences.
Courts must do the same.
The Sierra Club also argues that EPA made a determina-
tion in a rulemaking. It points to a 1998 EPA rule listing
areas that had attained ozone standards; the rule did not
include St. Louis on the list. See 63 Fed. Reg. 31,014, 31,059
(June 5, 1998). The focus of the rule was not the St. Louis
area's attainment status. The rule instead provided a founda-
tion for EPA's plan to switch from one-hour to eight-hour
attainment standards. EPA specifically noted that the pur-
pose of the rule was not to reclassify any areas. See 63 Fed.
Reg. 31,017. Furthermore, the status quo for St. Louis's air
quality after 1991 was "nonattainment," so the fact that it was
not included on a list of regions that had attained compliance
does not, in itself, indicate that EPA had made the statutory
determination.
The next issue is whether the district court erred in
refusing the Sierra Club's request for what it calls "nunc pro
tunc" relief--that is, to order EPA to date its attainment
determination May 15, 1997, although it actually made the
decision pursuant to the court's direction in a rule published
on March 19, 2001.
"Nunc pro tunc" is a fancy phrase for backdating. Trans-
lated as "now for then," Black's Law Dictionary 1097 (7th ed.
1999), it is an ancient tool of equity designed to give retroac-
tive effect to the order of a court. See, e.g., Mitchell v.
Overman, 103 U.S. 62, 65 (1880); Eppes ex rel. Wayles v.
Randolph, 6 Va. (2 Call) 125, 180, 186-87 (1799); Broom's
Legal Maxims 94 & n.5 (6th Am. ed. 1868). Courts have not
been consistent in their use of this power. See In re Auto-
Train Corp., 810 F.2d 270, 275 (D.C. Cir. 1987). One line of
authority holds that the "power to amend ... must not be
confounded with the power to create" and limits nunc pro
tunc relief to situations in which a clerical error creates a
defect in the record that a nunc pro tunc order can relieve.
See Gagnon v. United States, 193 U.S. 451, 457-59 (1904); see
also Gray v. Brignardello, 68 U.S. (1 Wall.) 627, 636 (1863);
Cent. Laborers' Pension, Welfare & Annuity Funds v. Grif-
fee, 198 F.3d 642, 644 (7th Cir. 1999) ("[T]he only proper
office of a nunc pro tunc order is to correct a mistake in the
records; it cannot be used to rewrite history."). While this
formulation appears to predominate, there are other cases
that speak of nunc pro tunc orders and judgments which
supply "action[s] that did not occur on the earlier date." In
re Auto-Train Corp., 810 F.2d at 275 (citing In re Triangle
Chems., Inc., 697 F.2d 1280, 1288-89 (5th Cir. 1983)). On
several occasions, this court has directed agencies to re-
adjudicate matters retroactive to the date of the initial deter-
mination, often--but not always--invoking the Latin phrase
in our opinion. See Ethyl Corp. v. Browner, 67 F.3d 941, 945
(D.C. Cir. 1995), and cases there cited.
In any event, what Sierra Club sought--to have the effec-
tive date of EPA's court-ordered determination converted to
the date the statute envisioned, rather than the actual date of
EPA's action--was a form of relief the district court quite
properly rejected. Court-ordered or not, EPA engaged in
rulemaking. We have held that the APA prohibits retroac-
tive rulemaking. See Georgetown Univ. Hosp. v. Bowen, 821
F.2d 750, 756-58 & n.11 (D.C. Cir. 1987), aff'd, 488 U.S. 204
(1988). The relevant provisions of the Clean Air Act contain
no language suggesting that Congress intended to give EPA
the unusual ability to implement rules retroactively. See 821
F.2d at 758. There may be an exception for situations in
which the "statute prescribes a deadline by which particular
rules must be in effect" and the "agency misses that dead-
line." See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,
224-25 (1988) (Scalia, J., concurring). Even then, retroactivi-
ty must be "reasonable," id. (Scalia, J., concurring), and it is
far from that here. Although EPA failed to make the nonat-
tainment determination within the statutory time frame, Sier-
ra Club's proposed solution only makes the situation worse.
Retroactive relief would likely impose large costs on the
States, which would face fines and suits for not implementing
air pollution prevention plans in 1997, even though they were
not on notice at the time. The district court adhered to the
limits of its jurisdiction by ordering EPA to perform the
nondiscretionary function of making an attainment determina-
tion. See 42 U.S.C. s 7604(a)(2). Even if it could have gone
further and ordered the relief the Sierra Club requested, we
see no basis for concluding that the court should have been
compelled to take that step.
The final issue deals with the Sierra Club's motion to
enforce the district court's judgment through an injunction
preventing EPA from taking further action on its proposed
rules to postpone St. Louis's nonattainment date, and to
withdraw its nonattainment determination and resulting clas-
sification change.
The district court was well aware of EPA's plans. The
agency asked the court to clarify whether its order would
prevent EPA from engaging in another rulemaking to post-
pone the effective date of its court-ordered determination of
attainment. The court ruled that its order did not restrict
EPA from engaging in such later rulemakings. By the time
of the motion to enforce the judgment, there was no doubt
that EPA had complied with the court's original directive and
performed its non-discretionary duties. The objection is that
once having complied, EPA undid what the order required
and thereby violated it. To accept this contention would
require us to read the court's order as restricting more than
the court itself intended. Given the level of respect we owe
to a district court's decision regarding what its orders forbid
or require, see United States v. Western Elec. Co., 46 F.3d
1198, 1205 (D.C. Cir. 1995), and the district court's limited
jurisdiction in a citizen suit to order only EPA's performance
of non-discretionary duties, see 42 U.S.C. s 7604(a)(2), we
cannot say the court's rejection of the Sierra Club's motion
was in error.
The Sierra Club takes note of our denial of its motion for a
writ of prohibition, and our statement that it had "adequate
means to obtain the relief requested" and could "move before
the district court for enforcement of the district court's
January 29, 2001 order." In re Sierra Club, 2001 WL 799956,
at *1. We do not think much can be read into this. A writ of
prohibition will not issue unless the applicant has no other
adequate forum in which to seek relief--adequate in the
respect of having a forum in which to bring the action, not a
forum that will rule in the applicant's favor. See In re Sealed
Case No. 98-3077, 151 F.3d 1059, 1063 (D.C. Cir. 1998). Our
order also said that the Sierra Club could seek judicial review
of EPA's final actions regarding the extension of the St. Louis
attainment area's effective date and withdrawal of its nonat-
tainment classification in the Seventh and Eighth Circuits.
In re Sierra Club, 2001 WL 799956, at *1. The Sierra Club is
now pursuing that avenue of relief. If it succeeds in having
the rules vacated, the nonattainment classification rule pro-
mulgated pursuant to the district court's order will presum-
ably stand.
* * *
Accordingly, the order of the district court granting sum-
mary judgment to the Sierra Club but denying nunc pro tunc
relief, and the court's order denying the Sierra Club's motion
to enforce the judgment are affirmed.