Clean Water Action v. Pruitt

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CLEAN WATER ACTION, et al.,
Plaintiffs,
v.
Civil Action No. 17-0817 (DLF)
E. SCOTT PRUITT, Administrator, U.S.
Environmental Protection Agency, et al.,
Defendants.
MEMORANDUM OPINION
Before the Court are five pending motions. For the reasons that follow, the Court will
deny the Plaintiffs’ Motion for Leave to Amend and Supplement the Complaint, Dkt. 63, and
grant the Defendants’ Motion to Dismiss, Dkt. 60. In addition, because the Court will grant
dismissal, the Court will deny as moot the Plaintiffs’ Motion for Summary Judgment, Dkt. 20,
the Defendants’ Cross-Motion for Summary Judgment or Dismissal or Transfer, Dkt. 32, and the
Intervenor-Defendant’s Cross-Motion for Summary Judgment or Dismissal or Transfer, Dkt. 49.
I. Background
The Clean Water Act prohibits “the discharge of any pollutant by any person” except as
authorized by the Act, 33 U.S.C. § 1311(a), and it requires the Environmental Protection Agency
and its Administrator (collectively, the EPA) to promulgate effluent limitations and standards
governing the discharge of pollutants from power plants, see id. §§ 1311(b), 1314(b), 1316(a),
1317, 1342(a). An “effluent limitation” is “any restriction established by a State or the
Administrator on quantities, rates, and concentrations” of certain pollutants “discharged from
point sources,” such as power plants, into various waters. Id. § 1362(11). The Clean Water Act
also requires the EPA to review and, if necessary, revise its effluent limitations and standards.
See id. §§ 1311(d), 1314, 1317(b).
The EPA enforces effluent limitations and standards through, among other programs, the
National Pollutant Discharge Elimination System program. Under that program, the EPA issues
permits allowing power plants to discharge pollutants that wash downstream “upon [the]
condition that such discharge will meet . . . all applicable requirements under [various provisions
of the Clean Water Act].” Id. § 1342(a)(1). The permits “impose limitations on the discharge of
pollutants, and establish related monitoring and reporting requirements, in order to improve the
cleanliness and safety of the Nation’s waters.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct.
617, 625 (2018) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 174
(2000)).
This case involves three actions taken by the EPA with regard to effluent limitations
under the Clean Water Act: a final rule promulgated in 2015, an indefinite stay issued in April
2017, and a subsequent final rule promulgated in September 2017.
A. Effluent Limitations under the Clean Water Act
The EPA promulgated the Steam Electric Power Plant Effluent Limitations Guidelines
Rule (ELG Rule) on November 3, 2015. See 80 Fed. Reg. 67,838. Relevant here, the ELG Rule
addressed effluent limitations and standards for six wastestreams generated by steam electric
power plants: bottom ash transport water, combustion residual leachate, flue gas desulfurization
wastewater, flue gas mercury control wastewater, fly ash transport water, and gasification
wastewater. See id. at 67,841–42. The ELG Rule required most power plants to comply with the
effluent limitations “as soon as possible” after November 1, 2018, and no later than December
31, 2023. Id. at 67,854. Within that range, the particular compliance date for each plant would
2
be determined by the plant’s National Pollutant Discharge Elimination System permit, which is
typically issued by a state environmental agency. See 40 C.F.R. § 423.11(t). The ELG Rule also
provided for effluent limitations that took effect immediately for “legacy wastewater,” i.e.,
certain wastewaters generated after the ELG Rule but before the future compliance deadlines
kicked in. 80 Fed. Reg. at 67,854–55. The ELG Rule quickly became the subject of legal
challenges: the EPA received seven petitions for review, which were consolidated before the
U.S. Court of Appeals for the Fifth Circuit. See Consolidation Order, U.S. Judicial Panel on
Multidistrict Litigation, Sw. Elec. Power Co. v. EPA, No. 15-60821 (5th Cir. Dec. 8, 2015), Doc.
513301255; see also 82 Fed. Reg. 43,494, 43,495. The EPA also received petitions for
administrative reconsideration of the ELG Rule. See 82 Fed. Reg. at 43,495.
On April 25, 2017, the EPA issued an Indefinite Stay of the ELG Rule. 82 Fed. Reg.
19,005. As authority for the Indefinite Stay, the EPA invoked Section 705 of the Administrative
Procedure Act, which permits an agency to “postpone the effective date of action taken by it,
pending judicial review,” when the agency “finds that justice so requires.” 5 U.S.C. § 705; see
also 82 Fed. Reg. at 19,005–06. According to the EPA, the Indefinite Stay sought to preserve
the regulatory status quo while the Fifth Circuit litigation remained pending and the EPA
reconsidered the ELG Rule. Id. at 19,005. The Stay indefinitely postponed the compliance
deadlines for five of the six wastestreams addressed by the ELG Rule (all but combustion
residual leachate). Id. at 19,005–06. In addition, the EPA noted that it would conduct notice-
and-comment rulemaking in order to revise the ELG Rule’s compliance deadlines, see id. at
19,006, which the EPA initiated with a notice of proposed rulemaking in June 2017, see 82 Fed.
Reg. 26,017.
3
On September 18, 2017, the EPA promulgated the ELG Rule Amendment. See
Postponement of Certain Compliance Dates for ELGs for Steam Electric Power Generating Point
Source Category, 82 Fed. Reg. 43,494. The ELG Rule Amendment withdraws the Indefinite
Stay and changes the earliest compliance deadlines for two wastestreams (bottom ash transport
water and flue gas desulfurization wastewater) from November 1, 2018 to November 1, 2020
while the EPA completes a new rulemaking on those wastestreams. Id. at 43,496, 43,498,
43,500. Also, by withdrawing the Indefinite Stay, the Amendment changes the “no later than”
compliance deadline for bottom ash transport water and flue gas desulfurization wastewater to
December 31, 2023, as it had been under the ELG Rule. Id. at 43,496; see also 40 C.F.R.
§ 423.13(g)(1)(i), (k)(1)(i). And, for the other three wastestreams 1 affected by the Indefinite
Stay, the Amendment permits the effluent limitations and standards initially imposed by the ELG
Rule to go back into effect, and the Amendment announces that the EPA does not plan to
conduct a new rulemaking for those wastestreams. See 82 Fed. Reg. at 43,494–96, 43,498.
B. Procedural History
The plaintiffs are eight environmental advocacy organizations that seek to improve water
quality, particularly by reducing water pollution from large sources such as power plants.2
Compl. ¶ 9, Dkt. 1. On May 3, 2017, they filed this action as a challenge to the Indefinite Stay
for allegedly violating the Administrative Procedure Act in a number of ways. Id. ¶¶ 1, 19–20,
56–89. On June 13, 2017, the EPA moved to dismiss the case, transfer it to the Fifth Circuit
1
The three wastestreams are flue gas mercury control wastewater, fly ash transport water, and
gasification wastewater. 82 Fed. Reg. at 19,005.
2
The eight organizations are Clean Water Action, Environmental Integrity Project, Sierra Club,
Waterkeeper Alliance, Inc., PennEnvironment, Inc., Chesapeake Climate Action Network,
Physicians for Social Responsibility Chesapeake, Inc., and Prairie Rivers Network. Compl. ¶¶ 1,
10–18; see also Proposed. Am. Compl. ¶¶ 1, 11–20, Dkt. 63-3.
4
pursuant to 28 U.S.C. § 1631, or stay proceedings. Dkt. 18. The next day, the plaintiffs moved
for summary judgment. Dkt. 20. The Court then denied the EPA’s motion to dismiss without
prejudice but invited the EPA to reassert the same arguments in a consolidated brief in
opposition to the plaintiffs’ summary judgment motion. Dkt. 23. In the ensuing consolidated
briefing, the EPA accepted the Court’s invitation by opposing the plaintiffs’ motion for summary
judgment and cross-moving for summary judgment, dismissal, or transfer.3 Dkt. 32. The
consolidated briefing concluded on September 11, 2017. See Dkt. 57; Dkt. 58.
One week later, the EPA promulgated the ELG Rule Amendment. Soon after, on
September 21, 2017, the EPA again moved to dismiss this case, arguing that the case is moot
because the ELG Rule Amendment withdraws the Indefinite Stay challenged by the plaintiffs.
Dkt. 60.
On October 5, 2017, the plaintiffs moved for leave to amend and supplement their
complaint to add two claims challenging the ELG Rule Amendment under the Administrative
Procedure Act.4 See Dkt. 63; see also Proposed Am. Compl. ¶¶ 104–111, Dkt. 63-3. In
opposition, the EPA argued that the proposed claims are futile because the Court lacks
3
The intervenor-defendant Utility Water Act Group also cross-moved for summary judgment,
dismissal, or transfer. Dkt. 49.
4
Contemporaneously, the plaintiffs filed a protective petition for review of the ELG Rule
Amendment in the U.S. Court of Appeals for the D.C. Circuit. Clean Water Action v. Pruitt, No.
17-1216 (D.C. Cir. Oct. 11, 2017), Doc. 1698542. The D.C. Circuit transferred the petition to
the Fifth Circuit pursuant to 28 U.S.C. § 2112, explaining that such transfer “is appropriate
‘where the same or inter-related proceeding was previously under review in a court of appeals,
and is now brought for review . . . in a follow-on phase.’” Order, Clean Water Action v. Pruitt,
No. 17-1216 (D.C. Cir. Feb. 1, 2018) (per curiam), Doc. 1716063 (quoting Pub. Serv. Comm’n v.
FPC, 472 F.2d 1270, 1270 (D.C. Cir. 1972)); see also Dkt. 78 (notice of order).
Upon receiving the transferred petition, the U.S. Court of Appeals for the Fifth Circuit stayed
further proceedings until a decision by this Court on the pending motions in this case. See Order,
Clean Water Action v. EPA, No. 18-60079 (5th Cir. Apr. 5, 2018), Doc. 514417108; see also
Dkt. 84 (notice of order).
5
jurisdiction over them. Dkt. 70 at 2–6. In addition, the intervenor-defendants argued that the
proposed claims are futile because 28 U.S.C. § 2112 would require this Court to transfer the
proposed claims to the Fifth Circuit and, moreover, the proposed claims would unduly expand
and delay the litigation before this Court. Dkt. 69 at 18–21, 26–29. Briefing concluded on
October 26, 2017. See Dkt. 71. The case was reassigned to the undersigned judge on December
4, 2017. The plaintiffs have since submitted a notice of supplemental authority regarding a
recently decided United States Supreme Court case, National Ass’n of Manufacturers v.
Department of Defense, 138 S. Ct. 617, 623 (2018). Dkt. 74. The Court now addresses the
plaintiffs’ motion for leave to amend and supplement the complaint, followed by the EPA’s
motion to dismiss.
II. Plaintiffs’ Motion for Leave to Amend and Supplement the Complaint
Whereas their initial complaint challenged the Indefinite Stay, the plaintiffs now seek to
add two claims challenging the ELG Rule Amendment. Dkt. 63. The proposed claims assert
that the EPA violated the Administrative Procedure Act by promulgating the ELG Rule
Amendment (1) in excess of the agency’s statutory authority and (2) without considering all
relevant factors and providing an adequate justification for the agency’s decision. See Proposed
Am. Compl. ¶¶ 104–11. The proposed claims, however, are futile, and they would unduly delay
and alter the scope of this litigation. Therefore, the Court will deny the plaintiffs’ motion.
A. Legal Standard
An addition to a pleading may be an “amendment” under Rule 15(a) or a “supplement”
under Rule 15(d) of the Federal Rules of Civil Procedure. The distinction “is in most instances
of little moment,” but an amendment “typically rest[s] on matters in place prior to the filing of
the original pleading,” while the “distinguishing feature of [a supplement] is that it sets forth
6
‘transactions or occurrences or events which have happened since the date of the pleading sought
to be supplemented.’” United States v. Hicks, 283 F.3d 380, 385 (D.C. Cir. 2002) (quoting Fed.
R. Civ. P. 15(d)). Because the plaintiffs here seek to add claims challenging a rule promulgated
months after the initial complaint, the plaintiffs’ request is best styled a motion for leave to
supplement their complaint.
Rule 15(d) of the Federal Rules of Civil Procedure provides that “the court may, on just
terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d)
(emphasis added). Some cases state that Rule 15(d) motions are “subject to the same standard”
as Rule 15(a) motions, see, e.g., Wildearth Guardians v. Kempthorne, 592 F. Supp. 2d 18, 23
(D.D.C. 2008), which would mean that leave is warranted “unless there is sufficient reason, such
as ‘undue delay, bad faith or dilatory motive . . . repeated failure to cure deficiencies by
[previous] amendments . . . [or] futility of amendment.’” Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); see also Cause of
Action Inst. v. DOJ, No. 16-2226, 2017 WL 4541352, at *3 (D.D.C. Oct. 10, 2017) (labeling any
difference between the two motions “a matter of semantics”).
But the two rules are not the same. Rule 15(d) is permissive: it tells courts that they
“may” grant leave to supplement, while Rule 15(a)(2) states that courts “should” give leave to
amend “when justice so requires.” Fed. R. Civ. P. 15; see also Jama v. ICE, 543 U.S. 335, 346
(2005) (“The word ‘may’ customarily connotes discretion. That connotation is particularly apt
where . . . ‘may’ is used in contraposition to the word ‘shall’ . . . .”); Lopez v. Davis, 531 U.S.
230, 241 (2001) (“Congress’ use of the permissive ‘may’ . . . contrasts with the legislators’ use
of a mandatory ‘shall’ in the very same section” and thus confers an “authority, but not [a]
7
duty[.]”); Baylor v. Mitchell Rubenstein & Assocs., 857 F.3d 939, 947 (D.C. Cir. 2017) (“[I]t is
clear that [a Rule’s] use of the permissive verb ‘may’ refers to the permissive nature of the
district judge’s authority . . . .”); Anglers Conservation Network v. Pritzker, 809 F.3d 664, 671
(D.C. Cir. 2016) (“Ordinarily, legislation using ‘shall’ indicates a mandatory duty while
legislation using ‘may’ grants discretion.”); Baptist Mem’l Hosp. v. Sebelius, 603 F.3d 57, 63
(D.C. Cir. 2010) (“‘[M]ay’ is permissive rather than obligatory.”); Ala. Power Co. v. FERC, 160
F.3d 7, 12 (D.C. Cir. 1998) (same); Antonin Scalia & Bryan A. Garner, Reading Law 112 (2012)
(stating that the “traditional, commonly repeated rule . . . that ‘may’ is permissive” is “so obvious
as to be hardly worth the saying”). The plain text of Rule 15(d) thus permits a court to grant
leave to supplement, but imposes no standard requiring a court to do so. See Fed. R. Civ. P. 15
advisory committee’s note to 1963 amendment (“Rule 15(d) is intended to give the court broad
discretion in allowing a supplemental pleading.”); James Madison Project v. DOJ, 208 F. Supp.
3d 265, 277 (D.D.C. 2016) (“The decision to grant leave under Rule 15(d) is discretionary.”).
Even looking past the text of the rules to this Circuit’s caselaw discussing them, the Rule
15(d) standard overlaps with the Rule 15(a)(2) standard, but they are not the “same standard.”
Wildearth Guardians, 592 F. Supp. 2d at 23. Compare Firestone, 76 F.3d at 1208, with Hall v.
CIA, 437 F.3d 94, 101 (D.C. Cir. 2006). Both standards, however, consider futility and delay.
“[B]oth motions for leave to amend and motions to supplement should be denied where
amendment (or supplementation) would be futile,” i.e., if the proposed claim would not survive a
motion to dismiss. Sai v. DHS, 149 F. Supp. 3d 99, 126 (D.D.C. 2015); see also Hettinga v.
United States, 677 F.3d 471, 480 (D.C. Cir. 2012) (affirming denial of leave to supplement on
futility grounds). Also, “[d]elay and prejudice are precisely the matters to be addressed in
considering whether to grant motions for supplemental pleadings; such motions are to be ‘freely
8
granted when doing so will promote the economic and speedy disposition of the entire
controversy between the parties, will not cause undue delay or trial inconvenience, and will not
prejudice the rights of any of the other parties to the action.’” Hall v. CIA, 437 F.3d 94, 101
(D.C. Cir. 2006) (quoting 6A Wright & Miller, Federal Practice & Procedure § 1504, at 186–87
(2d ed. 1990)); see also Firestone, 76 F.3d at 1208. Because futility and delay undergird the
Court’s decision to deny plaintiffs’ motion for leave to supplement the complaint, there is no
need to further analyze the precise differences between the two standards at this time.
B. Jurisdiction
In this case, the plaintiffs’ proposed claims are futile because this Court lacks jurisdiction
to review them. The Administrative Procedure Act generally provides for district court review
of EPA actions. 5 U.S.C. § 704. But the Clean Water Act enumerates seven categories of EPA
actions for which review lies directly and exclusively in the federal courts of appeals. 33 U.S.C.
§ 1369(b)(1); see also Nat’l Ass’n of Mfrs., 138 S. Ct. at 623, 626, 628. Under the category
relevant here, the federal courts of appeals have exclusive jurisdiction to review EPA actions “in
approving or promulgating any effluent limitation or other limitation under section 1311, 1312,
1316, or 1345 of [the Clean Water Act].” 33 U.S.C. § 1369(b)(1)(E). The Act defines “effluent
limitation” as “any restriction established by a State or the Administrator on quantities, rates, and
concentrations” of certain pollutants “discharged from point sources” into various waters. Id.
§ 1362(11). And “an ‘other limitation’ must be similar in kind to an ‘effluent limitation’: that is,
a limitation related to the discharge of pollutants.” Nat’l Ass’n of Mfrs., 138 S. Ct. at 628. “An
‘other limitation,’ for instance, could be a non-numerical operational practice or an equipment
specification that, like an ‘effluent limitation,’ restricts the discharge of pollutants, even though
9
such a limitation would not fall within the precise statutory definition of ‘effluent limitation.’”
Id. at 628–29.
To begin, it is undisputed that the 2015 ELG Rule promulgated effluent limitations within
the meaning of Section 1369(b)(1). In particular, the ELG Rule established effluent limitations
for six wastestreams generated by new and existing steam electric power plants; the earliest
compliance deadlines for those effluent limitations were November 1, 2018. 5 See 80 Fed. Reg.
at 67,841–42. Also, the ELG Rule established effluent limitations for “legacy wastewater,” i.e.,
wastewater generated after the Rule’s effective date but before the compliance deadlines kicked
in. Id. at 67,854. Because the ELG Rule fell within the ambit of Section 1369(b)(1), the Rule’s
challengers filed in courts of appeals, and their actions were consolidated before the Fifth
Circuit. See Consolidation Order, U.S. Judicial Panel on Multidistrict Litigation, Sw. Elec.
Power Co. v. EPA, No. 15-60821 (5th Cir. Dec. 8, 2015), Doc. 513301255; see also, e.g.,
Petitions for Review, Sw. Elec. Power Co. v. EPA, No. 15-60821, Doc. 513280720 (5th Cir.),
Doc. 513302904 (8th Cir.), Doc. 513303045 (2d Cir.), Doc. 513319819 (9th Cir.).
The plaintiffs in this case, by contrast, maintain that the ELG Rule Amendment falls
outside the ambit of Section 1369(b)(1) because the Amendment does not promulgate “any new
limitations, but instead only postpones the effective date of effluent limitations that were
previously promulgated.” Pls.’ Reply at 7, Dkt. 71. Under the plaintiffs’ reading, the Clean
Water Act may require parallel and potentially redundant litigation: the courts of appeals
directly review any regulation that initially promulgates a new effluent limitation, while district
courts review any subsequent changes to the regulation that do not rise to the level of “new
5
As noted, the six wastestreams are: bottom ash transport water, combustion residual leachate,
flue gas desulfurization wastewater, flue gas mercury control wastewater, fly ash transport water,
and gasification wastewater. See 80 Fed. Reg. at 67,841–42.
10
restrictions.” Id. at 9; see also id. at 8–11; Pls.’ Mot. at 11–12, Dkt. 63. The Act, however, does
not require such parallel litigation in this case because the ELG Rule Amendment approves or
promulgates effluent limitations or other limitations within the meaning of Section 1369(b)(1) in
at least two ways.
First, the ELG Rule Amendment approves or promulgates “limitation[s] related to the
discharge of pollutants” by subjecting power plants to different effluent limitations for all five
wastestreams implicated by the Indefinite Stay issued in April 2017. Nat’l Ass’n of Mfrs., 138 S.
Ct. at 628. The plaintiffs rely heavily on the argument that the Amendment does not create new
effluent limitations but rather “takes existing restrictions that were established by EPA in the
2015 ELG Rule and delays their compliance date by two years.” Pls.’ Reply at 9. But in doing
so, the plaintiffs ignore an intervening event—the Indefinite Stay—that changes the relevant
status quo ante.
When the ELG Rule Amendment was promulgated, much of the ELG Rule was not in
effect; rather, the Stay had indefinitely postponed compliance for five wastestreams. 82 Fed.
Reg. at 19,005–06. As a result, under the status quo immediately preceding the Amendment,
five wastestreams were not at all subject to “existing restrictions” established by the ELG Rule.
The Amendment, by withdrawing the Indefinite Stay, limits effluents compared to the status quo
ante. In particular, the Amendment (i) imposes December 31, 2023 as the “no later than”
compliance deadline for bottom ash transport water and flue gas desulfurization, as it had been
under the ELG Rule, see 40 C.F.R. § 423.13(g)(1)(i) (flue gas desulfurization wastewater),
(k)(1)(i) (bottom ash transport water); see also 82 Fed. Reg. at 43,496; and (ii) imposes effluent
limitations initially set by the ELG Rule but indefinitely postponed by the Stay for three other
wastestreams: flue gas mercury control wastewater, fly ash transport water, and gasification
11
wastewater, see 82 Fed. Reg. at 43,494–96. In other words, the ELG Rule Amendment sets
“limitation[s] related to the discharge of pollutants” that were not in effect on the day before the
Amendment. Nat’l Ass’n of Mfrs., 138 S. Ct. at 628.
Second, the Amendment approves or promulgates limitations related to the discharge of
pollutants by revising the ELG Rule. In particular, the Amendment changes the ELG Rule’s
earliest compliance deadlines for two wastestreams: bottom ash transport water and flue gas
desulfurization wastewater. 82 Fed. Reg. at 43,496. Under the ELG Rule, the earliest
compliance deadlines for those effluent limitations would have been November 1, 2018. Under
the Amendment, the earliest deadlines are November 1, 2020. Id. at 43,500. Changing a
compliance deadline is “tantamount to amending . . . a rule.” Clean Air Council v. Pruitt, 862
F.3d 1, 6 (D.C. Cir. 2017). By amending a rule that established effluent limitations, the ELG
Rule Amendment revised the limitations and thus set different limitations. This is particularly
true because the Amendment, while changing the compliance deadlines, does not free bottom ash
transport water and flue gas desulfurization wastewater from all limitation until November 1,
2020. Rather, the Amendment subjects the two wastestreams to “legacy wastewater” limitations
for a longer period of time. Under the ELG Rule, the “legacy wastewater” limitations would
have applied until the earliest compliance deadlines in 2018. But under the ELG Rule
Amendment, power plants must comply with the “legacy wastewater” limitations until at least
2020.6 In this way, the Amendment approves or promulgates different limitations related to the
discharge of pollutants.
6
This point also distinguishes the ELG Rule Amendment from other EPA actions not considered
effluent limitations in cases cited by the plaintiffs. See, e.g., Pls.’ Reply at 9–10, Dkt. 71. Those
cases involved EPA actions that permanently exempted certain entities or effluents from
compliance, and thus “impose[d] no restrictions,” Friends of the Everglades v. EPA, 699 F.3d
1280, 1286 (11th Cir. 2012), or “provide[d] no limitation whatsoever,” Nw. Envtl. Advocates v.
12
To illustrate, consider a road with a speed limit of forty miles per hour. Changing the
road’s speed limit sets a new speed limit, and the analysis is no different if the change only
affects future compliance deadlines. If a rule (like the ELG Rule) sets twenty miles per hour as a
new speed limit that will apply on the road starting in late 2018, and a later rule (like ELG Rule
Amendment) revises the compliance deadline to 2020, the later rule sets a different speed limit
on that road for the period from late 2018 to 2020: forty miles per hour instead of twenty miles
per hour.
In fact, the plaintiffs acknowledge as much. Their proposed amended complaint
characterizes the ELG Rule Amendment as “a revision of the ELG [R]ule’s effluent limitations.”
Proposed. Am. Compl. ¶¶ 108–11. And the proposed complaint asserts that the revision was
unlawful because the EPA did not make findings required by 33 U.S.C. § 1314(b), which
provides “Effluent limitation guidelines” for “adopting or revising effluent limitations.” 33
U.S.C. § 1314(b); Proposed Am. Compl. ¶¶ 108, 110 (citing 33 U.S.C. § 1314(b)). The plaintiffs
thus fault the EPA for not complying with “effluent limitations guidelines” when promulgating
the ELG Rule Amendment, while maintaining—for jurisdictional purposes—that the EPA did
not approve or promulgate “effluent limitations or other limitations” via the ELG Rule
Amendment. The Court declines to join in their mental gymnastics and concludes that the ELG
EPA, 537 F.3d 1006, 1016 (9th Cir. 2008); see also id. (Section 1369(b)(1)(E) does not apply to
a regulation that “creates the categorical and permanent exemptions of three types of discharges
from any limit imposed by a permitting requirement”). In contrast, the ELG Rule Amendment
does not permanently exempt bottom ash transport water and flue gas desulfurization wastewater
from limitations; rather, the Amendment changes the relevant effluent limitations with which
power plants must comply going forward.
13
Rule Amendment “approv[es] or promulgat[es] effluent limitation[s] or other limitations[s].” 33
U.S.C. § 1369(b)(1)(E).7
Finally, the limitations are promulgated “under section 1311, 1312, 1316, or 1345,” as
required to fall within the scope of Section 1369(b)(1)(E); see also Friends of Earth v. EPA, 333
F.3d 184, 189 (D.C. Cir. 2003) (“[T]he references to particular sections . . . exclude others.”
(quoting Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992)). Namely, the
limitations are under Section 1311. “[T]he statutory context makes clear that the prepositional
phrase—‘under section 1311’—is most naturally read to mean that the effluent limitation or
other limitation must be approved or promulgated ‘pursuant to’ or ‘by reason of the authority of’
[Section] 1311.” Id. Here, the EPA promulgated the ELG Rule Amendment by reason of its
7
The Court’s conclusion requires no recourse to the “practical-effects” test rejected as
inconsistent with the statutory text in National Ass’n of Manufacturers, nor any other functional
approach. See 138 S. Ct. at 617; see also id. at 631–632 (rejecting a “functional interpretive
approach” because it misconstrues prior caselaw and ignores the statutory text, albeit the text of
Section 1369(b)(1)(F), not the specific provision at issue in this case); Pls.’ Reply at 6; Notice of
Suppl. Authority, Dkt. 74 (asserting that National Ass’n of Manufacturers supports the plaintiffs’
argument that the ELG Rule Amendment “do[es] not fit with the plain text” of Section
1369(b)(1)(E)).
In National Ass’n of Manufacturers, the U.S. Supreme Court assessed whether courts of appeals
or district courts have jurisdiction to review the EPA’s Waters of the United States Rule, which
defines the geographic scope of “waters of the United States” for purposes of the Clean Water
Act. See 80 Fed. Reg. 37,054. The U.S. Supreme Court held that the Rule falls outside the
ambit of Section 1369(b)(1)(E), even though the Rule might “have the ‘legal or practical effect’
of making [effluent] limitations applicable to certain waters.” Nat’l Ass’n of Mfrs., 138 S. Ct. at
630. In doing so, the Court emphasized that the Rule merely “announces” “‘a definitional rule
that clarifies the scope of’ the statutory term ‘waters of the United States,’” but “does not
establish any regulatory requirements” and “imposes no enforceable duty on any state, local, or
tribal governments, or the private sector.” Id. at 626, 628 (quoting 80 Fed. Reg. at 37,054,
37,102).
The ELG Rule Amendment, by contrast, imposes enforceable duties and establishes regulatory
requirements, specifically the limitations discussed above. Because the Amendment “impose[s]
restrictions on the discharge of certain pollutants,” it falls within the ambit of Section
1369(b)(1)(E). Id. at 629. In accordance with National Ass’n of Manufacturers, this conclusion
is “grounded in the statutory text,” not any functional approach. Id. at 630.
14
authority under Section 1311(d), which provides for EPA “review and revision of effluent
limitations.” 33 U.S.C. § 1311(d); see 82 Fed. Reg. at 43,496 (explicitly invoking Section
1311(d)).
Therefore, the ELG Rule Amendment approves or promulgates limitations within the
meaning of Section 1369(b)(1), and challenges to the Amendment belong in the federal courts of
appeals. 33 U.S.C. § 1369(b)(1)(E). Because this Court thus lacks jurisdiction over the
plaintiffs’ proposed claims challenging the Amendment, it would be futile for the plaintiffs to
pursue the claims before this Court.
C. Delay and Scope
Furthermore, the plaintiffs’ proposed claims would unduly delay and alter the scope of
this litigation. Leave to supplement is warranted if a plaintiff shows that leave “will promote the
economic and speedy disposition of the entire controversy between the parties, will not cause
undue delay or trial inconvenience, and will not prejudice the rights of any of the other parties to
the action.” Hall, 437 F.3d at 10 (internal quotation marks omitted); see Sai v. TSA, 155 F. Supp.
3d 1, 7 (D.D.C. 2016) (denying leave to supplement because the plaintiff “failed to carry his
burden” of demonstrating the Hall considerations).
Here, the plaintiffs’ proposed claims would delay resolution of this case. The parties
have already completed multiple rounds of briefing on various dispositive motions, see Dkt. 20;
Dkt. 32; Dkt. 49; Dkt. 60, including the pending motion to dismiss that predates the plaintiffs’
request to supplement the complaint. The EPA filed that motion on September 21, 2017. Dkt.
60. Fourteen days later, the plaintiffs filed their opposition brief, Dkt. 64, but also moved for
leave to supplement the complaint with two claims challenging the ELG Rule Amendment, Dkt.
63. Granting leave to supplement would necessitate yet another round of briefing based on a
15
different administrative record, and it would prevent the Court from resolving the pending
dispositive motions, which are otherwise ripe for resolution and which the Court addresses
today. See infra Section III; see also City of Williams v. Dombeck, 203 F.R.D. 10, 11 (D.D.C.
2001) (denying leave to amend in part because the time needed to compile the administrative
record and brief “yet another round” of dispositive motions “would delay resolution of the
case”); Biosafe-One, Inc. v. Hawks, 639 F. Supp. 2d 358, 370 (S.D.N.Y. 2009), aff’d, 379 F.
App’x 4 (2d Cir. 2010) (denying leave to supplement because, having “already dismissed
plaintiffs’ complaint in its entirety in the same opinion, leave would “unduly delay resolution of
[the] case”).
Moreover, the plaintiffs’ proposed claims would significantly alter the scope of this case.
The current complaint asserts six claims against the Indefinite Stay, all of which are specific to
the Stay and Section 705 of the Administrative Procedure Act. See Compl. ¶¶ 56–89 (the
Indefinite Stay violates the Administrative Procedure Act because it does not comply with
various requirements of Section 705, departs from the EPA’s prior practice, is inadequately
justified, and was issued without notice and comment).
In contrast, the plaintiffs’ two proposed claims would challenge the ELG Rule
Amendment on wholly different grounds. Although the Amendment and the Stay are
superficially similar because both broadly relate to the ELG Rule, the Amendment is a different
type of agency action (a final rule promulgated after notice and comment instead of a Section
705 stay), promulgated based on a different administrative record, pursuant to different authority
(the effluent limitations provisions of the Clean Water Act, not Section 705 of the Administrative
Procedure Act). And due to these differences, the proposed claims assert different causes of
action, namely that (1) the Amendment exceeds the EPA’s statutory authority under the Clean
16
Water Act, which requires “compliance with effluent limitations” “as expeditiously as possible,
but in no case later than three years after the date such limitations are promulgated,” Proposed
Am. Compl. ¶¶ 104–106 (quoting 33 U.S.C. § 1311); and (2) the EPA promulgated the
Amendment without making the findings required by the Clean Water Act for a lawful revision
of effluent limitations, id. ¶¶ 107–111 (citing 33 U.S.C. § 1314).
The proposed claims are thus factually and legally distinct from the current claims. And
because the current claims are moot, see infra Section III, permitting the plaintiffs to supplement
would effectively swap the current complaint for an entirely new complaint. Thus, the proposed
claims—in addition to being futile—would unduly delay and alter the scope of this litigation,
and the Court will therefore deny leave to supplement the complaint. See Nat’l Treasury Emps.
Union v. Helfer, 53 F.3d 1289, 1295 (D.C. Cir. 1995) (affirming denial where the amendment
“bore only [a] tangential relationship to the original claim” and did not prejudice the plaintiff
because the plaintiff “can file [the amendment as] an independent challenge”); Sai v. TSA, 155 F.
Supp. 3d 1, 7 (D.D.C. 2016); Miss. Ass’n of Coops. v. Farmers Home Admin., 139 F.R.D. 542,
544 (D.D.C. 1991) (denying leave because the amendment “would do far more than allow
plaintiff to fully litigate all the legal dimensions of their initial action,” but rather “permit
plaintiff to transform their case into something entirely new”).
III. Defendants’ Motion to Dismiss for Lack of Jurisdiction
Without any supplemental claims, the plaintiffs’ complaint challenges only the Indefinite
Stay issued by the EPA in April 2017. This challenge, however, is moot because the Stay was
withdrawn in September 2017 and the case does not implicate exceptions to the mootness
doctrine. Because the Court lacks jurisdiction to review moot cases, the Court will grant the
defendants’ motion to dismiss this case. Dkt. 60.
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A. Legal Standard
Under Rule 12(b)(1), a party may move to dismiss an action when the court lacks subject-
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion to dismiss for mootness is properly
brought under Rule 12(b)(1) because “mootness itself deprives the court of jurisdiction.” Indian
River Cty. v. Rogoff, 254 F. Supp. 3d 15, 18–19 (D.D.C. 2017). “Federal courts lack jurisdiction
to decide moot cases because their constitutional authority extends only to actual cases or
controversies.” Conservation Force, Inc. v. Jewell, 733 F.3d 1200, 1204 (D.C. Cir. 2013)
(quoting Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983)); see also U.S. Const. art.
III, § 2. To ensure an actual controversy remains extant, mootness must be assessed at “all
stages of review.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 609 (2013).
A case is moot “when the issues presented are no longer live or the parties lack a legally
cognizable interest in the outcome.” Schmidt v. United States, 749 F.3d 1064, 1068 (D.C. Cir.
2014) (quotation marks omitted). This occurs when, for example, “intervening events make it
impossible to grant the prevailing party effective relief,” Lemon v. Geren, 514 F.3d 1312, 1315
(D.C. Cir. 2008), or when the Court’s decision “will neither presently affect the parties’ rights
nor have a more-than-speculative chance of affecting them in the future,” Aref v. Lynch, 833
F.3d 242, 250 (D.C. Cir. 2016) (quotation marks omitted). Exceptions to the mootness doctrine
may arise, however, when a challenged action is “voluntarily ceased” or “capable of repetition
yet evades review.” See Cierco v. Mnuchin, 857 F.3d 407, 414–15 (D.C. Cir. 2017).
“When ruling on a Rule 12(b)(1) motion, the court must treat the complaint’s factual
allegations as true and afford the plaintiff the benefit of all inferences that can be derived from
the facts alleged.” Jeong Seon Han v. Lynch, 223 F. Supp. 3d 95, 103 (D.D.C. 2016) (quotation
marks omitted). Those factual allegations, however, receive “closer scrutiny” than they would in
18
the Rule 12(b)(6) context. Id. Also, unlike the Rule 12(b)(6) context, a court may consider
documents outside the pleadings to evaluate whether it has jurisdiction. See Jerome Stevens
Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). If the court determines that it lacks
jurisdiction because a claim is moot, the court must dismiss the claim. Fed. R. Civ. P. 12(b)(1),
12(h)(3).
B. Mootness
This case is moot because the Indefinite Stay is no longer in effect. The EPA withdrew
the Stay via a final rule, the ELG Rule Amendement, in September 2017. See 82 Fed. Reg. at
43,495–96. The plaintiffs assert that the ELG Rule Amendment only “purports to withdraw” the
Indefinite Stay, see Pls.’ Opp’n at 5, Dkt. 64, but the plaintiffs offer no reason to think that the
Stay remains in effect. Contrary to the plaintiffs’ assertions, the ELG Rule Amendment directly
addresses the Stay and states that “EPA, hereby, withdraws that action.” 82 Fed. Reg. at 43,496.
In place of the withdrawn Stay, the ELG Rule Amendment postpones by two years the earliest
compliance deadlines for two of the five wastestreams affected by the Stay: bottom ash transport
water and flue gas desulfurization wastewater. Id. And, for the other three wastestreams
affected by the Stay, the Amendment permits compliance deadlines previously set by the ELG
Rule to go back into effect. Id. at 43,494.
The withdrawal of the Indefinite Stay and its replacement by the ELG Rule Amendment
were “intervening events [that] make it impossible to grant the prevailing party effective relief.”
Lemon, 514 F.3d at 1315. The plaintiffs ask the Court to declare the Stay unlawful and vacate it,
see Compl. at 21, but the Court cannot grant that relief. Because the stay was withdrawn, there is
nothing for the Court to vacate, and a declaratory judgment would be an impermissible advisory
opinion. See Pub. Serv. Elec. & Gas Co. v. FERC, 783 F.3d 1270, 1274 (D.C. Cir. 2015) (“[T]he
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oldest and most consistent thread in the federal law of justiciability is that the federal courts will
not give advisory opinions.” (quotation marks omitted)); Ctr. for Sci. in the Pub. Interest v.
Regan, 727 F.2d 1161, 1164 (D.C. Cir. 1984) (holding a challenge moot because the superseded
agency action “no longer has any force” and “further judicial pronouncement on [the action]
would be purely advisory”); NRDC v. U.S. Nuclear Regulatory Comm’n, 680 F.2d 810, 814–15
(D.C. Cir. 1982) (holding a challenge moot because “[i]n effect, [the plaintiff] seeks a
declaration from this court that the initial promulgation of the [superseded] rule was unlawful, an
advisory opinion which federal courts cannot provide”).
Likewise, the Court cannot grant the plaintiffs’ requests that the Court reinstate the
compliance deadlines imposed by the ELG Rule and indefinitely postponed by the Stay. See
Compl. at 21. The deadlines for three of the wastestreams were already reinstated by the ELG
Rule Amendment, see 82 Fed. Reg. at 43,494, and the Court “can hardly order [the agency] to do
something that it has already done,” Nat’l Ass’n of Home Builders v. Salazar, 827 F. Supp. 2d 1,
8 (D.D.C. 2011) (quoting NRDC, 680 F.2d at 814). In addition, the deadlines for the other two
wastestreams were superseded by the ELG Rule Amendment, which proceeded through full
notice-and-comment rulemaking and replaced the relevant deadlines imposed by the ELG Rule
and postponed by the Stay. 82 Fed. Reg. at 43,496. The Court cannot reinstate those deadlines
absent a challenge to the ELG Rule Amendment, which is not properly before the Court. See
supra Section II; Ctr. for Sci., 727 F.2d at 1164 (“[I]t is not improper for an agency to engage in
new rulemaking to supersede defective rulemaking. . . . [A]n ultimate determination of the rights
and obligations of the parties concerning [the subject matter of the superseded rule] can emerge
only upon consideration of the validity of [the superseding rule].”). Because this case no longer
presents live issues and “nothing would turn on [its] outcome,” the case is moot. Coal. of Airline
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Pilots Ass’ns v. FAA, 370 F.3d 1184, 1191 (D.C. Cir. 2004) (quotation marks and alterations
omitted).
C. Exceptions
Moreover, this case does not implicate the mootness exceptions for challenged actions
that are “voluntarily ceased” or for actions that are “capable of repetition yet evade review.” See
Cierco, 857 F.3d at 414–15.
1. Voluntary Cessation
“As a general rule, a defendant’s ‘voluntary cessation of allegedly illegal conduct does
not deprive [a court] of power to hear and determine the case.” Id. at 414 (quoting Cty. of L.A. v.
Davis, 440 U.S. 625, 631 (1979)). Rather, voluntary cessation will only moot a case if the
defendant shows that (1) “there is no reasonable expectation that the alleged violation will recur”
and (2) “interim relief or events have completely and irrevocably eradicated the effects of the
alleged violation.” Id. at 414–15 (quotation marks and alterations omitted).
First, there is no reasonable expectation that the challenged stay will recur. The EPA not
only withdrew the Indefinite Stay, but also replaced the Stay with the ELG Rule Amendment.
As a result, this case does not present a situation in which the agency voluntarily ceased an
informal action but might reinstate the same action at any time. Rather, the EPA deliberated via
full notice-and-comment rulemaking, then decided that “there is no longer any need for the
Agency to maintain” the Stay and formalized that decision by partially changing compliance
dates for some wastestreams while imposing compliance dates for other wastestreams as
originally set by the ELG Rule. See 82 Fed. Reg. at 43,496.
Against this agency deliberation and rulemaking to withdraw and replace the Indefinite
Stay, the plaintiffs argue that the EPA might reinstate the Stay if the ELG Rule Amendment is
21
vacated by a court. See Pls.’ Opp’n at 10. But such speculation is insufficient to establish that
the challenged stay will likely recur. See Chamber of Commerce v. EPA, 642 F.3d 192, 208
(D.C. Cir. 2011) (“[T]he federal regulations [here, the ELG Rule and ELG Rule Amendment] are
currently in force, subject to the usual presumption of validity, and at this point the possibility
that they may be invalidated is nothing more than speculation.” (citation omitted)). In a similar
case, the D.C. Circuit held moot a challenge to the EPA’s decision to waive federal preemption
of California’s more stringent vehicle standards. After waiving preemption, the EPA
promulgated new vehicle standards as stringent as California’s. California, no longer needing a
waiver to enforce stringent standards, then withdrew its own standards in favor of the EPA’s.
Holding the case moot, the D.C. Circuit explained:
The prospect that litigants could be injured “if” a court were someday to
invalidate the federal regulations and “if” California thereafter were to reimpose
its standards, is little different from the prospect that any litigant could be injured
“if” EPA (or Congress) were eventually to enact a rule it presently had under
consideration. To seek judicial review of such a contemplated-but-not-yet-
enacted rule is to ask the court for an advisory opinion in connection with an
event that may never come to pass.
Id. It would require similarly impermissible speculation to forecast that the ELG Rule
Amendment will be vacated and that the EPA will then decide to reinstate the Indefinite Stay
challenged in this case.
The plaintiffs look even further into the future when they assert that the EPA might
reinstate the stay if the agency is still reconsidering the ELG Rule in late 2020, i.e., when the
Amendment’s new compliance deadlines begin to kick in. See Pls.’ Opp’n at 10–11. In support,
the plaintiffs point to the preamble of the ELG Rule Amendment, which stated: “If EPA does
not complete a new rulemaking by November, 2020, it plans to further postpone the compliance
dates such that the earliest compliance date is not prior to completion of a new rulemaking.” 82
22
Fed. Reg. at 43,494. It is speculative to conclude, based on the preamble alone, that the EPA
will need more than three years from the ELG Rule Amendment to complete its new rulemaking.
Indeed, the three-years projection is not guesswork; rather, the EPA calculated that the new
rulemaking will take approximately three years by “reflecting on the time it typically takes the
Agency to propose and finalize revised effluent limitations guidelines and standards” and “the
characteristics of this industry and the anticipated scope of the next rulemaking.” Id. at 43,498.
And even if the rulemaking ends up requiring three years, the EPA may not issue a stay
like that challenged here. Instead, the EPA may postpone the compliance dates with a notice-
and-comment rule, just as it did via the ELG Rule Amendment. And any future stay would
likely involve only the two wastestreams currently under reconsideration, not the five
wastestreams addressed by the challenged stay, because the ELG Rule Amendment already
reinstated deadlines for three of the five wastestreams based on an explicit EPA decision not to
reconsider the ELG Rule’s requirements for those wastestreams. See 82 Fed. Reg. at 43,498.
These “hypothetical possibilities . . . are nothing more than possibilities regarding regulations
and enforcement policies that do not presently exist. This is not enough to give rise to a live
dispute.” Am. Bar Ass’n v. FTC, 636 F.3d 641, 647 (D.C. Cir. 2011).
Finally, and even more speculatively, the plaintiffs argue that the challenged stay is likely
to recur because the EPA and other agencies have stayed or might stay other regulations. See
Pls.’ Opp’n at 11–12. The plaintiffs identify one other action by the EPA to stay different
regulations under Section 705 of the Administrative Procedure Act, see 82 Fed. Reg. 32,357
(July 13, 2017), as well as two actions by the Department of Interior and the Bureau of Land
Management to stay different regulations promulgated under different substantive statutes, see
82 Fed. Reg. 27,430 (June 15, 2017) (BLM stay of regulations governing venting, flaring, and
23
leaking during oil and natural gas production activities on onshore federal leases); 82 Fed. Reg.
Fed. Reg. 11,823 (Feb. 27, 2017) (DOI stay of coal valuation rule); see also California v. BLM,
277 F. Supp. 3d 1106 (N.D. Cal. 2017) (analyzing BLM stay), appeal filed, No. 17-17456 (9th
Cir. Dec. 8, 2017); Becerra v. DOI, 276 F. Supp. 3d 953 (N.D. Cal. 2017) (analyzing DOI stay).
The plaintiffs also assert that the EPA might issue stays in the future because the agency has
expressed a general intent to review current regulations. See 82 Fed. Reg. 17,793 (Apr. 13,
2017). Such examples, however, have little bearing on whether the challenged stay will recur.
Isolated invocations of Section 705 to stay other regulations promulgated under other substantive
statutes do not indicate that the EPA will again stay the ELG Rule specifically, or even other
regulations generally promulgated under the Clean Water Act. And the examples certainly do
not indicate that the EPA will stay the particular aspects of the ELG Rule implicated in this case.
To the contrary, the EPA decided via the notice-and-comment process that the ELG Rule
Amendment made such a stay unnecessary. See 82 Fed. Reg. at 43,496. As a result, there is not
a reasonable expectation that the challenged stay will recur.
Turning briefly to the second prong of the “voluntary cessation” exception to mootness,
intervening events have completely and irrevocably eradicated the effects of the alleged
violation. Because the Indefinite Stay was withdrawn and replaced by the ELG Rule
Amendment, the Stay is “now devoid of any legal effect.” Coal. of Airline Pilots Ass’ns, 370
F.3d at 1191. To the extent that the plaintiffs suffer any harm from the modified compliance
deadlines going forward, the harmful effects will stem from the ELG Rule Amendment, not the
withdrawn Stay.
To resist this conclusion, the plaintiffs conjecture that the withdrawal “has not alleviated
. . . the disruptive effects that the [S]tay has had on state and utility implementation of the ELG
24
Rule.” Pls.’ Opp’n at 14. But regardless of whether the Indefinite Stay encouraged states and
utilities to delay implementation during summer 2017, the Stay ceased to have that effect when it
was withdrawn and replaced in September 2017. Consider the plaintiffs’ examples. The
plaintiffs assert that the Stay continues to have harmful effects because the state of Nebraska and
an Indiana utility cited the Stay in summer 2017 when making compliance decisions regarding
the ELG Rule. The extent to which these past compliance decisions would have differed in the
absence of the Stay, however, remains entirely speculative. And regardless of whether Nebraska
and the Indiana utility modified their behavior based on the Stay, the ELG Rule Amendment
requires them to adhere to a different compliance regime, from which any continuing harms will
stem. As a result, the ELG Rule Amendment eradicated the effects of the allegedly unlawful
stay, and the Court concludes that the “voluntary cessation” exception does not apply in this
case.
2. Capable of Repetition yet Evading Review
Similarly inapplicable is the mootness exception for disputes that are “capable of
repetition yet evade review.” This exception applies if the plaintiffs show that (1) “the
challenged action was in its duration too short to be fully litigated prior to its cessation or
expiration” and (2) “there was a reasonable expectation that the same complaining party would
be subjected to the same action again.” United Bhd. of Carpenters v. Operative Plasterers’ Int’l
Ass’n, 721 F.3d 678, 687 (D.C. Cir. 2013) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)).
First, the plaintiffs fail to show that the duration of the challenged action was by its nature too
short to be fully litigated. In this case, multiple dispositive motions, including cross-motions for
summary judgment, were fully briefed before the stay was withdrawn and replaced by the ELG
Rule Amendment; the litigation was thus ripe for decision. See Dkt. 20; Dkt. 32; Dkt. 49.
25
Moreover, the plaintiffs themselves cite two recent cases in which Section 705 stays have been
fully litigated. See California, 277 F. Supp. 3d at 1106; Becerra, 276 F. Supp. 3d at 953.
Second, even if the challenged action were too short to be fully litigated, the plaintiffs fail to
show a reasonable expectation that the same complaining party would be subjected to the same
action again. As discussed above, the EPA is unlikely to subject the plaintiffs to the same stay
again. See supra Section III.C.1. Therefore, the “capable of repetition yet evading review”
exception does not apply. This case is moot and must be dismissed.
CONCLUSION
For the foregoing reasons, the Court denies the Plaintiffs’ Motion for Leave to Amend
and Supplement the Complaint, Dkt. 63, and the Court grants the Defendants’ Motion to
Dismiss, Dkt. 60. In addition, because the Court dismisses this action, the Court denies as moot
the Plaintiffs’ Motion for Summary Judgment, Dkt. 20, the Defendants’ Cross-Motion for
Summary Judgment or Dismissal or Transfer, Dkt. 32, and the Intervenor-Defendant’s Cross-
Motion for Summary Judgment or Dismissal or Transfer, Dkt. 49. A separate order consistent
with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
Date: April 18, 2018
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