Sierra Club v. United States Environmental Protection Agency , 850 F. Supp. 2d 300 ( 2012 )


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  •                    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
    -3-
    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
    -4-
    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.)
    -6-
    “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.
    -7-
    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