American Road & Transportation Builders Association v. Environmental Protection Agency , 865 F. Supp. 2d 72 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN ROAD &
TRANSPORTATION BUILDERS
ASSOCIATION,
Plaintiff,
Civil Action 11-1713 (RC)
v.
ENVIRONMENTAL PROTECTION
AGENCY et al.,
Defendants.
MEMORANDUM OPINION
For the last ten years, the American Road and Transportation Builders Association
(“ARTBA”) has sought to alter the regulations implementing section 209(e) of the Clean Air
Act. The Environmental Protection Agency (“EPA”) has consistently denied its petitions. In
2009, the D.C. Circuit dismissed a challenge to one such denial; two other challenges are
currently pending in the courts of appeals. ARTBA now asks this court to review the EPA’s
denial of its petitions. But only the courts of appeals may review final action taken under the
Clean Air Act, see 42 U.S.C. § 7607(b)(1), and so this court dismisses the case for lack of
subject matter jurisdiction.
I. BACKGROUND
In 1990, Congress amended the Clean Air Act to authorize the federal regulation of
emissions from nonroad engines,1 which power vehicles and mobile equipment from
1
The statute defines “nonroad engine” as “an internal combustion engine (including the
fuel system) that is not used in a motor vehicle or a vehicle used solely for competition, or that is
lawnmowers to locomotives. Pub. L. No. 101-549, § 213, 104 Stat. 2399, 2500 (codified at 42
U.S.C. § 7547). At the same time, in section 209(e) of the amended Act, Congress preempted
state regulation of such emissions. 42 U.S.C. § 7543(e). Section 209(e)(1) prohibits states from
adopting or enforcing “any standard or other requirement relating to the control of emissions”
from “new” locomotives or their engines or “new” engines below a certain horsepower that are
used in farm or construction vehicles or equipment. Id. § 7543(e)(1). That bar is absolute, but
section 209(e)(2) requires the EPA under certain conditions to “authorize California to adopt and
enforce standards and other requirements relating to the control of emissions” from nonroad
engines and vehicles not named in section 209(e)(1). Id. § 7543(e)(2)(A). Other states can then
opt in to the California standards. Id. § 7543(e)(2)(B).
In 1994, the EPA published two regulations interpreting the preemptive scope of section
209(e). One regulation—the “preemption rule”—defined statutory terms and clarified the class
of preempted state law, see Preemption of State Regulation for Nonroad Engine and Vehicle
Standards, 59 Fed. Reg. 36,969, 36,986–87 (July 20, 1994) (“1994 Preemption Rule”) (codified
at 40 C.F.R. § 85.1602–03 (1995)), while the other—the “interpretive rule”—emphasized the
types of state regulation that were permitted without federal authorization, see Emission
Standards for New Nonroad Compression-Ignition Engines At or Above 37 Kilowatts, 59 Fed.
Reg. 31,306, 31,339–40 (June 17, 1994) (“1994 Interpretive Rule”) (codified at 40 C.F.R. § 89subpt. A, App’x A (1995)). The agency’s rationales for the two regulations were nearly
not subject to standards promulgated under section 7411 of this title or section 7521 of this title,”
that is, Clean Air Act sections 111 and 202. 42 U.S.C. § 7550(10). Most of the provisions
concerning nonroad engines also apply to nonroad vehicles, defined as “a vehicle that is powered
by a nonroad engine and that is not a motor vehicle or a vehicle used solely for competition,” id.§ 7550(11).
2
identical. Compare id. at 31,328–31 with 1994 Preemption Rule, 59 Fed. Reg. at 36,971–74. In
justifying both the preemption rule and the interpretive rule, the EPA acknowledged the “clear
preemption of state regulation of nonroad engines . . . in section 209(e)(1)” and determined that,
although “[t]he language of section 209(e)(2) does not state any clear preemption,” some
preemption was nonetheless implied.2 The agency further “noted that section 209(e)(2) of the
Act does not prevent California or other states from regulating nonroad engines and vehicles in
use,” and stated its belief that “the requirements of section 209(e)(2) apply only to new nonroad
engines and vehicles.” 1994 Interpretive Rule, 59 Fed. Reg. at 31,330 (emphases added); 1994
Preemption Rule, 59 Fed. Reg. at 36,973 (same). The preemption rule therefore provided that no
state could “enforce any standards or other requirements relating to the control of emission[s]
from new nonroad engines or vehicles” unless California was first authorized to enforce them.
1994 Preemption Rule, 59 Fed. Reg. at 36,987 (codified at 40 C.F.R. § 85.1603(d) (1995))
(emphasis added). It defined a “new” engine or vehicle as one which has neither been “placed
2
1994 Interpretive Rule, 59 Fed. Reg. at 31,330; 1994 Preemption Rule, 59 Fed. Reg. at
36,973. As the D.C. Circuit explained when the regulation was challenged:
. . . if no state regulation were preempted, California would have no need to seek
authorization for its regulations, and other states would not need to opt in to the
California rules. Thus, the California authorization provision assumes the existence
of a category of sources that are subject to preemption. In other words, states must
be preempted from adopting any regulation for which California could seek
authorization.
Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1087–88 (D.C. Cir. 1996) (citations omitted).
3
into service” nor had its “equitable or legal title . . . transferred to an ultimate purchaser.”3 The
interpretive rule described the EPA’s understanding of “in-use” regulations:
EPA believes that states are not precluded under section 209 from regulating the use
and operation of nonroad engines, such as regulations on hours of usage, daily mass
emission limits, or sulfur limits on fuel; nor are permits regulating such operations
precluded once the engine is placed into service or once the equitable or legal title
to the engine or vehicle is transferred to an ultimate purchaser, as long as no
certification, inspection, or other approval related to the control on emissions is
required as a condition precedent to the initial retail sale, titling, or registration of the
engine or equipment.
1994 Interpretive Rule, 59 Fed. Reg. at 31,339 (codified at 40 C.F.R. § 89 subpt. A, App’x A
(1995)).
An industry group challenged the preemption rule’s definition of “new” and its limitation
of section 209(e)(2)’s preemptive effect to new nonroad engines, as well as the interpretive
rule’s assertion that section 209(e)(2) did not preempt state regulation of the use of nonroad
engines. Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075 (D.C. Cir. 1996) (“EMA”). This suit was
brought in the D.C. Circuit under Clean Air Act § 307(b)(1), which provides that review of
“nationally applicable regulations promulgated” under the Act “may be filed only in the United
States Court of Appeals for the District of Columbia.” 42 U.S.C. § 7607(b)(1) (emphasis added).
The D.C. Circuit upheld the definition of “new,” ruling that the statutory term was ambiguous
and the agency’s interpretation permissible. EMA, 88 F.3d at 1087. Turning to the question
3
1994 Preemption Rule, 59 Fed. Reg. at 36,986 (codified at 40 C.F.R. § 85.1602(1995)). This definition of “new” did not apply to locomotives and their engines. Id. (codified
at 40 C.F.R. § 85.1602 (1995)) (“This definition of new shall not apply to locomotives or engines
used in locomotives.”). “New” was defined for that purpose in 1998. See Emission Standards
for Locomotives and Locomotive Engines, 63 Fed. Reg. 18,978, 18,998 (Apr. 16, 1998)
(codified at 40 C.F.R. §§ 85.1602, 85.1603(c) (1998)).
4
“whether, as the EPA decided, only new nonroad sources are covered by § 209(e)(2), or, as [the
industry group] argue[d], both new and non-new sources are covered,” id. at 1088, the court
concluded that Congress had spoken to the issue by omitting the word “new” from § 209(e)(2),
see id. at 1087–93. The agency’s attempt to limit the scope of the provision was therefore barred
by the statutory text. Id. at 1093. Having established “which nonroad sources the states are
preempted from regulating,” the Circuit addressed the question of “what sorts of regulations the
states are preempted from adopting,” id., upholding the EPA’s determination that section
209(e)(2) did not preempt state regulation of the use of nonroad engines. Id. at 1094.
The EPA revised its regulations to conform to the Circuit’s decision in EMA. See
Preemption of State Regulation for Nonroad Engine and Vehicle Standards; Amendments to
Rules, 62 Fed. Reg. 67,733, 67,735 (Dec. 30, 1997) (“Amendments to Rules”) (“Today’s direct
final rule implements the opinion of the Court regarding the scope of preemption of section
209(e)(2) by amending the language of the implementing regulations to reflect that California
must request authorization for its emissions standards and other related requirements for all
nonroad vehicles and engines.”) (emphasis added). The agency removed the word “new” from
the preemption rule’s description of the engines whose emissions could not be regulated without
federal approval, see id. at 67,736 (amending 40 C.F.R. § 85.1603(d)), and revised the language
of the interpretive rule’s “determination that states are not precluded from regulating the use of
nonroad engines,” id. at 67,734.
In 2002, ARTBA petitioned the EPA to amend its regulations. Petition to Amend Rules
Implementing Clean Air Act § 209(e), EPA Docket HQ-OAR-2004-0008, Doc. 531 (July 12,
2002) (“Petition to Amend Rules”). The association asked the agency to declare that certain
5
types of state regulation which the revised interpretive rule4 listed as permissible were in fact
preempted by section 209(e), along with other types of regulation not discussed in the extant
rules. Petition to Amend Rules at 1. ARTBA criticized the research and reasoning of the EMA
decision at some length and identified allegedly untenable distinctions introduced by an
amendment to the preemption rule dealing with locomotives. Id. at 3 (discussing Emissions
Standards for Locomotives and Locomotive Engines, 63 Fed. Reg. 18,978, 18,998 (Apr. 16,
1998) (amending 40 C.F.R. § 85.1602–03)). ARTBA also noted that it had successfully
challenged a Texas regulation as preempted by section 209(e). Id. at 1 (describing the holding of
Engine Mfrs. Ass’n v. Huston, 190 F. Supp. 2d 922 (W.D. Tex. 2001), vacated (5th Cir. Mar. 5,
2002) and dismissed as moot (5th Cir. May 14, 2002)). After the Supreme Court’s decision in
Engine Manufacturers Association v. South Coast Air Quality Management District, 541 U.S.
246 (2004), ARTBA argued in an email to the EPA that the new precedent compelled the agency
to grant the regulatory revisions that the association was seeking. ARTBA Petition, EPA Docket
HQ-OAR-2004-0008, Doc. 532 (Apr. 30, 2004).
The EPA put ARTBA’s petition out for comment in 2007, see Control of Emissions from
Nonroad Spark-Ignition Engines and Equipment, 72 Fed. Reg. 28,098, 28,209–10 (May 18,
4
The revised description of “the authority of states to regulate the use and operation of
nonroad engines” read:
EPA believes that states are not precluded under section 209 from regulating the use
and operation of nonroad engines, such as limitations on hours of usage, daily mass
emission limits, or sulfur limits on fuel; nor are permits regulating such operations
precluded, once the engine is no longer new.
Amendments to Rules, 62 Fed. Reg. at 67,736 (codified at 40 C.F.R. § 89 Subpt. A, Appx. A
(1998)).
6
2007), and rejected it the following year, see Control of Emissions From Nonroad Spark-Ignition
Engines and Equipment, 73 Fed. Reg. 59,034, 59,130 (Oct. 8, 2008) (“After reviewing
ARTBA’s petition and the comments received regarding the petition, EPA is not adopting the
changes requested by ARTBA in its petition.”).5 The agency explained that “although EPA does
agree in part with ARTBA’s interpretation, EPA does not believe it is necessary or appropriate to
revise its regulations based on ARTBA’s petition.” Response to the Petition of ARTBA to
Amend Regulations Regarding the Preemption of State Standards Regulating Emissions from
Nonroad Engines, EPA Docket HQ-OAR-2004-0008, Doc. 921, at 11 (Aug. 21, 2008). Where
the EPA agreed that certain forms of state regulation unmentioned in its regulations were in fact
preempted by section 209(e), it nonetheless concluded that “the regulations as written are
sufficient and need not be revised” to make that preemption explicit. Id. at 1. And the EPA
maintained its position that, contrary to ARTBA’s reading of the statute, “Congress did not
intend to preempt state and local regulation of the use and operation of nonroad engines under
section 209(e) of the Clean Air Act.” Id. at 27 (abbreviation expanded).
ARTBA challenged the denial of its petition before the D.C. Circuit. ARTBA v. EPA, 588
F.3d 1109 (D.C. Cir. 2009). This challenge was also brought directly to that court under Clean
Air Act § 307(b)(1), which provides that petitions for review of regulations promulgated under
the Act “shall be filed within sixty days from the date notice of such promulgation . . . appears in
the Federal Register,” unless the “petition is based solely on grounds arising after such sixtieth
5
At the same time, the EPA recodified the preemption rule at 40 C.F.R. part 1074. See
Control of Emissions From Nonroad Spark-Ignition Engines and Equipment, 73 Fed. Reg. at
59,130 (noting that, with two exceptions not relevant here, the EPA was “not changing the
meaning of these regulations”); id. at 59,379–80 (codified at 40 C.F.R. § 1074.1 et seq. (2009)).
7
day.” 42 U.S.C. § 7607(b)(1). The Circuit held that ARTBA’s suit was an untimely attack on
the 1997 re-promulgation of the preemption and interpretive rules rather than a timely challenge
to the EPA’s denial of its 2008 petition because Clean Air Act § 307(b)(1) enacted an exception
to “[t]he general rule . . . that it is a perfectly valid ‘method of obtaining judicial review of
agency regulations once the limitations period has run . . . to petition the agency for amendment
or rescission of the regulations and then to appeal the agency’s decision.’” ARTBA, 588 F.3d at
1112 (quoting NLRB Union v. FLRA, 834 F.2d 191, 196 (D.C. Cir. 1987)) (second ellipsis in
original). Because ARTBA had not filed suit within sixty days of either the 1997 re-
promulgation or a later event that ripened its claim, the Circuit dismissed the case for lack of
subject matter jurisdiction. Id. at 1113–16.
In 2010, ARTBA submitted comments on California’s proposed revisions to a portion of
its state implementation plan (“SIP”),6 and “renew[ed] [ARTBA’s] petition with respect to the
nonroad preemption rules.” ARTBA Comments and Rulemaking Petition Regarding Revision to
California State Implementation Plan, EPA Docket R09-OAR-2010-0430, Doc. 14, at 1 (July 6,
2010). The association sought “EPA’s denial of California’s SIP revision for the same reasons
that ARTBA ha[d] long sought amendment of EPA’s rules implementing Section 209(e).” Id. at
2. Rejecting the petition, the EPA explained that “ARTBA’s petition seems to be little more
than a renewal of its earlier request for an amendment to EPA’s rule implementing Clean Air Act
section 209(e).” Revisions to the California State Implementation Plan, 76 Fed. Reg. 26,609,
6
Under the Clean Air Act, “states must adopt, and submit to the EPA for approval, SIPs
that provide for the implementation, maintenance, and enforcement” of the national air quality
standards. County of Delaware, Pennsylvania v. Dep’t of Transp., 554 F.3d 143, 145 (D.C. Cir.
2009).
8
26,611–12 (May 9, 2011). The agency noted that it had “already reviewed these issues several
times and [was] not revisiting these broader issues in this limited proceeding.” Id. at 26,612.
On July 8, 2011, ARTBA filed suit in the Ninth and D.C. Circuits. ARTBA petitioned
the D.C. Circuit to review (1) the EPA’s approval of the SIP revisions, (2) the agency’s refusal to
designate its action as having “nationwide scope or effect” under section 307(b)(1) and therefore
subject to challenge in the D.C. Circuit instead of the Ninth Circuit, and (3) its denial of
ARTBA’s petition to amend or repeal the rules concerning the preemptive scope of section
209(e). See Petition for Review, ARTBA v. EPA, No. 11-1256 (D.C. Cir. July 8, 2011). ARTBA
petitioned the Ninth Circuit to review only the approval of the SIP revisions. See Petition for
Review, ARTBA v. EPA, No. 11-71897 (9th Cir. July 8, 2011). The Ninth Circuit case is
currently stayed pending the resolution of the D.C. Circuit case.
On September 22, 2011, ARTBA brought this case “to challenge EPA’s final agency
action with respect to” the 2008 rulemaking at issue in ARTBA v. EPA, 588 F.3d 1109 (D.C. Cir.
2009), as well as the 2011 rulemaking regarding the California SIP revisions, both of which
“relate to the preemptive scope of Clean Air Act § 209(e), 42 U.S.C. § 7543(e).” Compl. ¶ 1.
ARTBA seeks, in essence, a declaratory judgment approving its interpretation of that provision
and requiring the EPA to amend its regulations accordingly. ARTBA also asks this court to void
decisions of the United States Supreme Court and the D.C. Circuit. The association has named
as defendants the United States, the EPA, and its Administrator, Lisa P. Jackson, acting in her
9
official capacity (collectively, “the government”). The government has moved to dismiss the
case for lack of jurisdiction.7
II. LEGAL STANDARD
Sovereign immunity, which shields from suit the federal government, its agencies, and
federal officials acting in their official capacities, is “jurisdictional in nature.” FDIC v. Meyer,
510 U.S. 471, 475 (1994) (the federal government and its agencies); Jackson v. Donovan, 2012
WL 574075, at *1 (D.D.C. Feb. 23, 2012) (citing Kentucky v. Graham, 473 U.S. 159, 165–66
(1985)) (federal officials in their official capacities); see also United States v. Mitchell, 463 U.S.
206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and
that the existence of consent is a prerequisite for jurisdiction”). “A waiver of the Federal
Government’s sovereign immunity must be unequivocally expressed in statutory text, and will
not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted). “Indeed, the
‘[statutory] terms of [the United States’] consent to be sued in any court define that court’s
jurisdiction to entertain the suit.’” Meyer, 510 U.S. at 475 (quoting United States v. Sherwood,
312 U.S. 584, 586 (1941)). By the same token, because “the inferior courts of the United States
. . . are creatures of statute,” Owens v. Republic of Sudan, 531 F.3d 884, 887 (D.C. Cir. 2008),
which “may not exercise jurisdiction absent a statutory basis,” Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 552 (2005), the terms of jurisdiction-conferring statutes both define
and limit a federal court’s authority to hear a given case. The plaintiff bears the burden of
establishing both the court’s statutory jurisdiction and the government’s waiver of its sovereign
7
The government argues in the alternative that ARTBA cannot state a claim on which
relief can be granted and that the case is barred by res judicata, but the court need not reach
those arguments to resolve the motion.
10
immunity. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Tri-State Hosp.
Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003) (“A party bringing suit against
the United States bears the burden of proving that the government has unequivocally waived its
immunity.”); Jackson v. Bush, 448 F. Supp. 2d 198, 200 (D.D.C. 2006) (noting that “a plaintiff
must overcome the defense of sovereign immunity in order to establish the jurisdiction necessary
to survive a Rule 12(b)(1) motion to dismiss”).
III. ANALYSIS
Section 307(b)(1) of the Clean Air Act “channels review of final EPA action exclusively
to the courts of appeals, regardless of how the grounds for review are framed.” Virginia v.
United States, 74 F.3d 517, 523 (4th Cir. 1996); Missouri v. United States, 109 F.3d 440, 441
(8th Cir. 1997) (“The Clean Air Act . . . channels all petitions for review of EPA actions into the
courts of appeals.”) (abbreviation expanded); see also Massachusetts v. EPA, 415 F.3d 50, 54
(D.C. Cir. 2005), overruled on other grounds, 549 U.S. 497 (2007) (“Section 307(b)(1), 42
U.S.C. § 7607(b)(1), gives this court exclusive jurisdiction over ‘nationally applicable
regulations promulgated, or final action taken, by the Administrator’ under chapter 85 of the
Act.”) (emphasis added); Envtl. Def. Fund v. Thomas, 870 F.2d 892, 896 (2d Cir. 1989)
(“Because Section 307 embodies a grant of exclusive jurisdiction, it appears that if the District of
Columbia [Circuit] has jurisdiction over the present action, the district court does not.”)
(emphasis added); Royster-Clark Agribusiness, Inc. v. Johnson, 391 F. Supp. 2d 21, 25–26
(D.D.C. 2005) (“It is well-settled that subsection 307(b)(1) of the Clean Air Act provides the
exclusive means of obtaining review of final actions by EPA under the Clean Air Act.”)
(emphasis added) (abbreviation expanded). This case seeks review of final agency action by the
11
EPA under the Clean Air Act. Compl. ¶ 1. It must therefore be brought in the appropriate court
of appeals—where, indeed, ARTBA has already sought identical relief.
In an attempt to avoid that conclusion, ARTBA principally invokes the citizen-suit
provision of the Clean Air Act, §304(a)(2), 42 U.S.C. § 7604(a)(2), and the Administrative
Procedure Act, 5 U.S.C. §§ 701–706. The government responds that neither waives the
sovereign immunity of the United States nor gives the plaintiff a cause of action. It might have
added—and this court is obliged to note—that ARTBA must also identify a source of statutory
jurisdiction. When a party challenges administrative action, the three inquiries are closely
related. For instance, if the Administrative Procedure Act provides a cause of action, then it also
provides a waiver of sovereign immunity, and the federal question statute grants jurisdiction to
the district courts. See Trudeau v. FTC, 456 F.3d 178, 185 (D.C. Cir. 2006) (“[T]he APA . . .
provide[s] . . . a limited cause of action for parties adversely affected by agency action.”); id. at
187 (“[W]e hold that APA § 702’s waiver of sovereign immunity permits [the plaintiff’s] APA
cause of action . . . .”); Road Sprinkler Fitters Local Union 669 v. Herman, 234 F.3d 1316, 1319
(D.C. Cir. 2000) (“28 U.S.C. § 1331 . . . gives federal courts . . . ‘jurisdiction of all civil actions
arising under the . . . laws . . . of the United States,’ including those brought under the APA.”)
(quoting 28 U.S.C. § 1331). If, however, another statute provides an “adequate remedy in a
court,” 5 U.S.C. § 704, then the APA neither provides a cause of action nor waives sovereign
immunity. Washington Legal Found. v. Alexander, 984 F.2d 483, 486 (D.C. Cir. 1993) (“[A]n
adequate remedy is available to appellants, and we therefore conclude that appellants have no
cause of action under the APA . . . .”); Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005) (“The
APA excludes from its waiver of sovereign immunity . . . claims for which an adequate remedy
12
is available elsewhere.”) (quoting Transohio Sav. Bank v. Dir., Office of Thrift Supervision, 967
F.2d 598, 607 (D.C. Cir. 1992)) (alterations in original); Nat’l Wrestling Coaches Ass’n v. Dep’t
of Educ., 366 F.3d 930, 947 (D.C. Cir. 2004) (“[T]he waiver of sovereign immunity under § 702
is limited by the ‘adequate remedy’ bar of § 704.”). And if the statute providing the adequate
remedy channels review to the courts of appeals, it eliminates the federal question jurisdiction
that the district courts would otherwise enjoy. See Harrison v. PPG Indus., Inc., 446 U.S. 578,
584 (1980). Because statutory jurisdiction, sovereign immunity, and the ability to state a claim
are interrelated in this way, the court will analyze them together as it considers each asserted
basis for its jurisdiction and ARTBA’s claims.
The citizen suit provision of the Clean Air Act authorizes “any person” to sue the EPA in
district court “where there is alleged a failure of the Administrator to perform any act or duty
under this chapter which is not discretionary with the Administrator . . . .” 42 U.S.C. §
7604(a)(2). In doing so, it provides jurisdiction to the district courts, waives the sovereign
immunity of the United States, and establishes a cause of action. See Royster-Clark, 391 F.
Supp. 2d at 25–26 (“The Clean Air Act provides its own waiver of sovereign immunity and
procedures for review . . . .”) (abbreviation expanded). To invoke this court’s jurisdiction under
the citizen suit provision, a plaintiff must point to an “act or duty under [the Clean Air Act]
which is not discretionary with the Administrator.” The provision “has been construed
narrowly,” Monongahela Power Co. v. Reilly, 980 F.2d 272, 276 n.3 (4th Cir. 1992), because
“Congress provided for district court enforcement under section 304 in order to permit citizen
enforcement of clear-cut violations by polluters or defaults by the Administrator where the only
required judicial role would be to make a clear-cut factual determination of whether a violation
13
did or did not occur,” Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir. 1987) (quotation
marks omitted); see also Envtl. Def. Fund v. Thomas, 870 F.2d 892, 899 (2d Cir. 1989) (“[T]he
district court has jurisdiction, under Section 304, to compel the Administrator to perform purely
ministerial acts, not to order the Administrator to make particular judgmental decisions.”);
Mountain States Legal Found. v. Costle, 630 F.2d 754, 766 (10th Cir. 1980) (“Congress . . .
restricted citizens’ suits to actions seeking to enforce specific non-discretionary clear-cut
requirements of the Clean Air Act.”); Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1355
(9th Cir. 1978) (describing the citizen suit provision as “intended to provide relief only in a
narrowly-defined class of situations in which the Administrator failed to perform a mandatory
function” and “not designed to permit review of the performance of those functions”) (quoting
Wis. Envtl. Decade, Inc. v. Wis. Power & Light Co., 395 F. Supp. 313, 321 (W.D. Wis. 1975)).
ARTBA suggests that agencies’ “everpresent duty to insure that their actions are lawful,” Pub.
Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147, 152 (D.C. Cir. 1990), gives the
Administrator a nondiscretionary duty to grant the petitions that she denied. ARTBA’s theory is
evidently that those petitions merely asked the EPA to bring its regulations into conformity with
statutory law—and, of course, the duty to conform with the law is not discretionary. If an
allegation of such an abstract duty were enough to satisfy the citizen suit provision, then section
307(b)(1) would mean nothing: any party could challenge regulations promulgated under the
Clean Air Act in district court at any time by arguing that those regulations were contrary to the
statute. The Clean Air Act clearly forecloses that interpretation. Because ARTBA seeks
substantive review of EPA regulations rather than an order that the Administrator perform a
purely ministerial act, its case is well outside the scope of the citizen suit provision.
14
ARTBA next argues that it can bring this suit under the APA. As discussed above,
“[u]nder APA § 704, only ‘final agency action for which there is no other adequate remedy in a
court [is] subject to judicial review,’” Transohio Sav. Bank v. Dir., Office of Thrift Supervision,
967 F.2d 598, 608 (D.C. Cir. 1992) (quoting 5 U.S.C. § 704) (second alteration in original), and
“[t]he APA excludes from its waiver of sovereign immunity . . . claims for which an adequate
remedy is available elsewhere.” Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005) (quoting
Transohio, 967 F.2d at 607) (alterations in original). The D.C. Circuit, “in determining whether
an adequate remedy exists, has focused on whether a statute provides an independent cause of
action or an alternative review procedure.” El Rio Santa Cruz Neighborhood Health Ctr., Inc. v.
HHS, 396 F.3d 1265, 1270 (D.C. Cir. 2005). Section 307(b)(1) of the Clean Air Act provides
just such a procedure. The fact that, as the Circuit ruled when ARTBA first sought relief there, a
particular petition is filed after the statutory period for review does not make the statutory review
procedure inadequate. Martinez v. United States, 333 F.3d 1295, 1319–20 (Fed. Cir. 2003)
(“The fact that the complaint was untimely filed . . . does not mean that that court could not offer
a full and adequate remedy; it merely means that [the plaintiff] did not file his complaint in time
to take advantage of that remedy.”); Town of Sanford v. United States, 140 F.3d 20, 23 (1st Cir.
1998) (“A legal remedy is not inadequate for purposes of the APA because it is procedurally
inconvenient for a given plaintiff, or because plaintiffs have inadvertently deprived themselves
of an opportunity to pursue that remedy.”); Sable Commc’ns, Inc. v. FCC, 827 F.2d 640, 642
(9th Cir. 1987) (holding that the remedy provided by 28 U.S.C. § 2342 was adequate within the
meaning of 5 U.S.C. § 704 when it was the plaintiff’s “own inaction which foreclosed review
under section 2342”). ARTBA argues that the review procedures of the Clean Air Act are
15
inadequate because another provision of the Act limits judicial review to “objection[s] . . . raised
with reasonable specificity during the period for public comment.” 42 U.S.C. § 7607(d)(7)(B).
The association argues that many of its objections to the preemption rule and the interpretive rule
arose more than sixty days after those rules were re-promulgated in 1997. (ARTBA does not
explain why its challenges to the California SIP revisions now pending in the courts of appeals
will not provide an adequate remedy as to those objections.) But the Clean Air Act accounts for
just such an eventuality, providing that:
If the person raising an objection can demonstrate to the Administrator that it was
impracticable to raise such objection within [the period for public comment] or if the
grounds for such objection arose after the period for public comment (but within the
time specified for judicial review) and if such objection is of central relevance to the
outcome of the rule, the Administrator shall convene a proceeding for
reconsideration of the rule and provide the same procedural rights as would have
been afforded had the information been available at the time the rule was proposed.
Id. The judicial review provision, in turn, allows for the review of petitions based on grounds
arising after the statutory period for review has expired. Id. § 7607(b)(1). Such grounds include
“the occurrence of an event that ripens a claim,” although “a petition predicated on any such new
event [must] be filed within 60 days of the event.” ARTBA, 588 F.3d at 1113–14. The D.C.
Circuit held that “none of the[] events” that ARTBA cited there and now cites here occurred
within sixty days of its petition either to the EPA or to the court of appeals. Id. at 1114. Had
ARTBA filed its claim no more than sixty days after an event that ripened its claims, those
claims would have been heard as timely brought.8 ARTBA did not do so, and its claims were
therefore dismissed. That the association failed to comply with the review procedures of the
8
The D.C. Circuit acknowledged that there is some ambiguity as to whether such claims
should first be presented to the Administrator or brought directly to the Circuit, see ARTBA, 588
F.3d at 1114, but that ambiguity is not enough to render the review procedure inadequate.
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Clean Air Act does not render those procedures inadequate, nor permit ARTBA to bring its
claim under the APA. ARTBA therefore has no cause of action under the APA, and cannot
depend upon that statute’s waiver of sovereign immunity.
ARTBA raises other arguments, which the court addresses briefly. There is a narrow
exception to sovereign immunity for suits alleging that a federal officer has acted outside of his
delegated power, see Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689–90
(1949); Chamber of Commerce v. Reich, 74 F.3d 1322, 1329 (D.C. Cir. 1996), but “[a] claim of
error in the exercise of that power is . . . not sufficient.” Larson, 337 U.S. at 690; see also
Royster-Clark, 391 F. Supp. 2d at 24–25. There is no doubt that the Administrator had the
power to promulgate regulations implementing Clean Air Act section 209(e). 42 U.S.C. §
7543(e) (“The Administrator shall issue regulations to implement this subsection.”). To claim
that she erred in doing so is not to state a claim that she acted ultra vires. ARTBA also invokes
Ex parte Young, 209 U.S. 123 (1908), which is simply the first instance of the theory at work in
Larson. See Vann v. Kempthorne, 534 F.3d 741, 751 (D.C. Cir. 2008) (discussing the “rationale
set forth in Ex parte Young and described in Larson”). Moreover, “since 1976 federal courts
have looked to § 702 of the Administrative Procedure Act to serve the purposes of the Ex parte
Young fiction in suits against federal officers.” EEOC v. Peabody W. Coal Co., 610 F.3d 1070,
1085 (9th Cir. 2010) (citation omitted). In Leedom v. Kyne, 358 U.S. 184 (1958), “the Supreme
Court held that, even though there is a statutory prohibition against review of representation
orders of the National Labor Relations Board, a District Court has jurisdiction under section [28
U.S.C. §] 1331 in the very limited circumstance where the Board has clearly violated an express
mandate of the statute and the plaintiff has no alternative means of review.” Telecomm.
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Research & Action Ctr. v. FCC, 750 F.2d 70, 78 (D.C. Cir. 1984). ARTBA has pointed to no
“express mandate of the statute” and, as discussed above, it has an alternate means of review.
ARTBA next invokes the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02, which is not a basis
for federal jurisdiction. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671–72; see
also Motor Vehicle Mfrs. Ass’n v. Costle, 647 F.2d 675, 677 n.3 (6th Cir. 1981) (per curiam)
(“Neither the Mandamus Act, the Declaratory Judgment Act, nor a district court’s federal
question jurisdiction authorizes review . . . in the district court in light of the exclusive grant of
jurisdiction to the United States Court of Appeals for the District of Columbia by Section
307(b)(1) of the Clean Air Act.”). Finally, ARTBA urges the court to exercise its general equity
jurisdiction. But “[i]t is a basic doctrine of equity jurisprudence that courts of equity should not
act when the moving party has an adequate remedy at law . . . .” Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 381 (1992) (ellipsis and internal quotation marks omitted). The
court emphasizes once more that the Clean Air Act gave ARTBA an adequate means of judicial
review.
IV. CONCLUSION
The Clean Air Act gives the courts of appeals exclusive jurisdiction over the claims that
ARTBA would raise here. In doing so, it provides an adequate remedy at law. There is no basis
for jurisdiction over ARTBA’s claims in this court, and no applicable waiver of the federal
government’s sovereign immunity. The court will therefore grant the government’s motion to
dismiss the case for lack of jurisdiction.
Rudolph Contreras
United States District Judge
Date: June 7, 2012
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