Sierra Club v. United States Environmental Protection Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
SIERRA CLUB, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-424 (RWR)
)
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Sierra Club brings this action against the U.S.
Environmental Protection Agency and its Administrator
(collectively “the EPA”) under the citizen suit provision of the
Clean Air Act (“CAA”), 42 U.S.C. § 7604, and the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 701-706, alleging that the EPA
violated a statutory obligation to promulgate by November 15,
2000 regulations to reduce emissions of hazardous air pollutants
created during the manufacturing of brick and structural clay
products. The EPA has moved to dismiss the Sierra Club’s
complaint for lack of jurisdiction, arguing that it is time-
barred and the claim that the EPA has failed to perform a non-
discretionary duty was mooted in 2003 when the EPA issued
regulations even though the court of appeals later vacated them.
However, because jurisdiction exists over a claim that the EPA
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still has not promulgated regulations that Congress required
the EPA to enact by 2000, the EPA’s motion will be denied.
BACKGROUND
In 1990, Congress revised the CAA as it applied to the
regulation of approximately 189 specified hazardous air
pollutants. It directed the EPA to identify the sources of those
pollutants and to promulgate regulations governing the emission
of hazardous air pollutants from those sources. The EPA then
listed brick kilns and clay products manufacturing as a major
source of hazardous air pollutants. (Compl. ¶ 10; Pl.’s Opp’n
at 3.) Section 112(e)(1) of the CAA directs the EPA to
promulgate emissions standards for major sources of hazardous air
pollutants by November 15, 2000. 42 U.S.C. 7412(e)(1). (See
Compl. ¶ 9.) However, the EPA did not issue until 2003 a final
rule creating a category containing both brick and structural
clay products manufacturing and clay ceramics manufacturing, and
promulgating national emission standards for hazardous air
pollutants for new and existing sources at brick and structural
clay products manufacturing facilities and clay ceramics
manufacturing facilities. (Compl. ¶ 12.) In March 2007, the
D.C. Circuit vacated the emission standards for both the brick
and structural clay products manufacturing and clay ceramics
manufacturing, and remanded the proceedings to the EPA. Sierra
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Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007). (See Compl. ¶ 15.)
By one year later, no new standards had been promulgated.
The Sierra Club filed the instant action under the citizen
suit provision of the CAA, 42 U.S.C. § 7604, arguing that the
Circuit’s order remanding the case to the EPA restored the status
quo that existed before the standards were enacted, placing the
EPA again in violation of its non-discretionary duty under 42
U.S.C. 7412(e)(1) to issue by 2000 emission standards for brick
and ceramic kilns. (Compl. ¶ 16.) The EPA has moved under
Federal Rule of Civil Procedure 12(b)(1) to dismiss the complaint
for lack of subject matter jurisdiction. It argues that Congress
waived sovereign immunity under these circumstances only for a
citizen suit alleging unreasonable agency delay, not one alleging
an agency’s failure to perform a non-discretionary duty, and that
a six-year statute of limitations is jurisdictional and bars the
complaint as pled. The Sierra Club opposes.
DISCUSSION
Rule 12(b)(1) permits a defendant to move to dismiss a
complaint for lack of subject-matter jurisdiction. Fed. R. Civ.
P. 12(b)(1). “‘Before a court may address the merits of a
complaint, it must assure that it has jurisdiction to entertain
the claims.’” Cornish v. Dudas, 715 F. Supp. 2d 56, 60 (D.D.C.
2010) (quoting Marshall v. Honeywell Tech. Solutions, Inc., 675
F. Supp. 2d 22, 24 (D.D.C. 2009)). A plaintiff bears the burden
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to establish that the court has subject-matter jurisdiction over
the claims in the complaint. Shuler v. United States, 531 F.3d
930, 932, (D.C. Cir. 2008). If the plaintiff is unable to do so,
the Court must dismiss the action. Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94 (1998) (citing Ex parte McCardle,
74 U.S. 506, 514 (1868)).
“‘[S]overeign immunity is jurisdictional’ and ‘[a]bsent a
waiver, . . . shields the Federal Government and its agencies
from suit.’” Cohen v. United States, 650 F.3d 717, 723 (D.C.
Cir. 2011) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)
(citing Loeffler v. Frank, 486 U.S. 549, 554 (1988), and Federal
Housing Administration v. Burr, 309 U.S. 242, 244 (1940))). “‘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.’” Bloch v. United States Census Bureau, 754 F.
Supp. 2d 15, 17 (D.D.C. 2010) (quoting United States v. Mitchell,
463 U.S. 206, 212 (1983)).
The CAA’s citizen suit provision, 42 U.S.C. § 7604, waives
sovereign immunity for suits seeking to compel an agency to
perform a non-discretionary duty by providing that any person
“may commence a civil action on his own behalf . . . against the
Administrator where there is an alleged failure of the
Administrator to perform any act or duty under this chapter which
is not discretionary with the Administrator,” and that the
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“district courts of the United States shall have jurisdiction to
compel . . . agency action unreasonably delayed.” 42 U.S.C.
§ 7604(a); see also Sierra Club v. Johnson, 500 F. Supp. 2d 936,
940 (N.D. Ill. 2007) (stating that “42 U.S.C. § 7604(a)(2)
expressly waives the sovereign immunity of the United States”).
The EPA argues that any claim that it violated a non-
discretionary duty to promulgate emissions standards for
hazardous air pollutants for new and existing sources at brick
and structural clay products manufacturing facilities and clay
ceramics manufacturing facilities before November 15, 2000 became
moot when the EPA issued such regulations in 2003. (Defs.’ Mem.
in Supp. of Mot. to Dismiss (“Defs.’ Mem.”) at 8.) According to
the EPA, its duty to promulgate those regulations is no longer
subject to the “nondiscretionary, date-certain deadline in the
statute” (Defs.’ Mem. at 7), and the government has not waived
its sovereign immunity from a suit alleging failure to perform a
nondiscretionary rule-making duty where the duty was performed
but the rule was judicially vacated. The EPA then argues that,
to the extent that the complaint alleges a claim that the EPA
unreasonably delayed responding to the order to promulgate
regulations on remand, Sierra Club would have to first comply
with the statutory requirement to give the EPA 180 days notice of
the intent to sue for the unreasonable delay. (Def.’s Mem.
at 8.)
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“When a court vacates an agency’s rules, the vacatur
restores the status quo before the invalid rule took effect and
the agency must ‘initiate another rulemaking proceeding[.]’”
Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 64 (D.D.C. 2004)
(quoting Indep. U.S. Tanker Owners Comm. v. Dole, 809 F.2d 847,
854 (D.C. Cir. 1987), and Sugar Cane Growers Co-op. of Florida v.
Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002)). Sierra Club v.
Johnson, 374 F. Supp. 2d 30 (D.D.C. 2005), recognized the same
rule. That case involved a deadline under the CAA by which
the EPA was required to approve or disapprove state air quality
plans within 12 months of their submission. The EPA approved
certain plans years after their submission by adopting rules
in 2001 and 2003 that the court of appeals vacated. The Sierra
Club filed a citizen suit complaining that the EPA was in
violation of its nondiscretionary duty to approve or disapprove
timely the state plans. The district court held that the EPA’s
non-discretionary rulemaking obligation was not discharged and
that the court had jurisdiction over the plaintiff’s citizen
suit. The opinion stated that
The existence of an unfulfilled duty to perform a
nondiscretionary act (that is, to approve or
disapprove) . . . disposes of EPA’s jurisdictional
argument. It is true that the Clean Air Act’s grant of
jurisdiction to district courts [applies to] suits to
compel nondiscretionary acts, 42 U.S.C. § 7604(a)(2),
but this is just such a suit.
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Sierra Club v. Johnson, 374 F. Supp. 2d at 33 n.5. Here,
the EPA’s 2003 regulations do not discharge the EPA’s duty to
promulgate emission standards for new and existing sources at
brick and structural clay products manufacturing facilities and
clay ceramics manufacturing facilities, and the EPA remains in
violation of its non-discretionary duty to issue those
regulations by November 15, 2000.
The defendants argue alternatively that if the proper remedy
is indeed an action for failure to discharge a non-discretionary
duty, the Sierra Club’s complaint is time barred by the six-year
limitation period set forth in 28 U.S.C. § 2401. (Def.’s Mem. at
10-11.) That statute provides, in relevant part, that “every
civil action commenced against the United States shall be barred
unless the complaint is filed within six years after the right of
action first accrues.” 28 U.S.C. § 2401. However, the D.C.
Circuit has recently spoken quite forcefully, albeit in dictum,
against the EPA’s proposition. In a case where the government
failed to take prescribed actions by deadlines set in four
environmental statutes, the D.C. Circuit opined that it was
likely error for the district court to have dismissed as
time-barred under § 2401 claims seeking to compel agency action
under the APA. The court stated:
This court has repeatedly refused to hold that actions
seeking . . . to compel agency action unlawfully
withheld or unreasonably delayed are time-barred if
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initiated more than six years after an agency fails to
meet a statutory deadline.
The Wilderness Society v. Norton, 434 F.3d 584, 588 (D.C. Cir.
2006) (internal quotation marks and citation omitted). The
opinion cited as illustrative examples cases in which the delay
between the unmet statutory deadline and the suit being filed was
eight years, In re United Mine Workers of America International
Union, 190 F.3d 545 (D.C. Cir. 1999), and nine years, In re
Bluewater Network, 234 F.3d 1305 (D.C. Cir. 2000). In each case,
the court of appeals rejected the agency’s contention that the
suit was time-barred, noting that the complaints concerned not
what the agency had done, but what it had not done. The court
acknowledged the argument that the agency inaction after missing
statutory deadlines amounted to “continuing violations,” The
Wilderness Society, 434 F.3d at 589, and rightly or not, the
circuit gave no preclusive force, as EPA here tries to do, to the
language in § 2401 timing the bar at six years after the right of
action “first accrues.” Thus, dismissing this action as untimely
likely would be error.
CONCLUSION AND ORDER
The complaint timely alleges a violation of a non-
discretionary duty to act, a claim which falls within the waiver
of sovereign immunity found within the CAA’s citizen suit
provision, 42 U.S.C. § 7604. Accordingly, it is hereby
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ORDERED that the defendant’s motion [14] to dismiss for lack
of jurisdiction be, and hereby is, DENIED.
SIGNED this 27th day of March, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge