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SIERRA CLUB v. LEAVITT

February 9, 2005.

SIERRA CLUB, et al., Plaintiffs,
v.
MICHAEL O. LEAVITT, Administrator, United States Environmental Protection Agency, Defendant.



The opinion of the court was delivered by: REGGIE B. WALTON, District Judge

MEMORANDUM OPINION

The plaintiffs have filed this action to "compel the . . . [Administrator of the Environmental Protection Agency ("EPA"),] to take actions required by 40 C.F.R. § 80.1045." Complaint for Declaratory and Injunctive Relief ("Compl.") ¶ 1. This regulation provides that "no later than July 1, 2003, the Administrator shall propose any requirements to control hazardous air pollutants from motor vehicles and motor vehicle fuels that the Administrator determines are appropriate pursuant to section 202(l)(2) of the Clean Air Act." 40 C.F.R. § 80.1045. The defendant seeks to dismiss the plaintiffs' action on the ground that this Court lacks subject matter jurisdiction to entertain this matter.*fn1 For the reasons set forth below, this Court will deny the defendant's motion. Page 2

I. Background

  In 1990, Congress passed the Clean Air Act Amendments of 1990, Pub.L. No. 101-549, 104 Stat. 2531 (1990) ("1990 Amendments" or "Amendments"). Section 202(l) of the 1990 Amendments required the EPA to complete a study of the need for and feasibility of mobile source air toxic regulations by May 15, 1992, and to promulgate regulations based on that study by May 15, 1995. 42 U.S.C. § 7521(l)(2). After failing to meet these statutory deadlines, various groups brought suit against the EPA to compel it to comply with the 1990 Amendments. See Sierra Club v. Browner, No. 95-1747 (RWR) (D.D.C. Sept. 13, 1995). Shortly after the 1995 lawsuit was initiated, the EPA entered into a consent decree setting a schedule for agency action. Compl. ¶ 11; Def.'s Mem. at 2. Consistent with the consent decree, the EPA issued a proposed rule in August 2000, 65 Fed. Reg. 48,058 (Aug. 4, 2000), and a Final Rule in March 2001. 66 Fed. Reg. 17,230 (March 29, 2001) (codified at 40 C.F.R. pts. 80, 86). Section 80.1045 of this final rule is at issue in this case and it states the following:
§ 80.1045 What additional rulemaking will EPA conduct?
No later than July 1, 2003, the Administrator shall propose any requirements to control hazardous air pollutants from motor vehicles and motor vehicle fuels that the Administrator determines are appropriate pursuant to section 202(l)(2) of the Act. The Administrator will take final action on such proposal no later than July 1, 2004. During this rulemaking, EPA also intends to evaluate emissions and potential strategies relating to hazardous air pollutants from nonroad engines and vehicles.
40 C.F.R. § 80.1045. Because this regulation did not require any reduction in emissions of mobile source air toxics as required under the statute but rather deferred a decision on the matter, various groups petitioned the District of Columbia Circuit for review of the regulations adopted by the EPA. See Sierra Club v. E.P.A., 325 F.3d 374, 377 (D.C. Cir. 2003). The District of Page 3 Columbia Circuit largely upheld the regulations and in particular concluded that it was appropriate for the EPA, through the rulemaking process, to defer a rulemaking on controls to hazardous air pollutants from motor vehicles and motor vehicle fuel until a later time. Id. at 380.

  To date, the EPA has not commenced the rulemaking required by 40 C.F.R. § 80.1045. Accordingly, the plaintiffs have brought this action which seeks to have this Court "[d]eclare that [the EPA Administrator's] failure to propose [the] regulations described in 40 C.F.R. § 80.1045 by July 1, 2003 constitutes `a failure of the Administrator to perform any act or duty under this chapter which is non discretionary with the Administrator' within the meaning of 42 U.S.C. § 7604(a)(2)" and order that the defendant propose a regulation consistent with his duty under 40 C.F.R. § 80.1045. Compl. ¶ 27. The defendant now requests that this Court dismiss this case under Federal Rule of Civil Procedure 12(b)(1) on the ground that the "[p]laintiffs have failed to identify a mandatory statutory duty with which the EPA has not complied . . .," thus depriving this Court of subject matter jurisdiction. Def.'s Mem. at 1.

  II. Standard of Review

  Under Rule 12(b)(1), which governs motions to dismiss for lack of subject matter jurisdiction, "[t]he plaintiff bears the burden of persuasion to establish subject matter jurisdiction by a preponderance of the evidence." Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). In reviewing such a motion, this Court must accept as true all the factual allegations contained in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). Additionally, in deciding a Rule 12(b)(1) motion, it is well established in this Circuit that a court is not limited to the allegations in the complaint, but may also consider material outside of the pleadings in its effort to determine Page 4 whether the court has jurisdiction in the case. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n. 3 (D.C. Cir. 1997); Herbert v. Nat'l Academy of Sciences., 974 F.2d 192, 197 (D.C. Cir. 1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001).

  III. The Parties' Arguments

  The plaintiffs' contend that this Court has subject matter jurisdiction in this case under either the citizen suit provision of the Clean Air Act, 42 U.S.C. § 7604(a)(2), or the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706. Compl. ¶ 4. Resolution of whether this Court has subject matter jurisdiction in this case requires the Court to first interpret 42 U.S.C. § 7604(a)(2), which waives the government's sovereign immunity as to a claim "against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary. . . ." 42 U.S.C. § 7604(a)(2). If sovereign immunity is waived under 42 U.S.C. § 7604(a)(2), then this Court is vested with subject matter jurisdiction over the plaintiffs' challenge. However, if subject matter jurisdiction is not vested in this Court through the Clean Air Act, this Court must then determine whether the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., vests subject matter jurisdiction in this Court.

  The defendant raises three arguments in support of his motion to dismiss. First, the defendant argues that the APA, specifically 5 U.S.C. § 702, does not provide an independent basis for this Court to have subject matter jurisdiction in this case because the statute on which the plaintiffs' claim is premised specifically precludes judicial review of the plaintiffs' claims. Def.'s Reply at 2. In addition, the defendant contends that the plaintiffs' reliance on Page 5 42 U.S.C. § 7604(a)(2) is misplaced because (1) the statute does not impose a "mandatory" obligation on the Administrator to take the action sought by the plaintiffs and (2) the Clean Air Act's citizen suit provision does not waive the United States' sovereign immunity regarding regulatory duties, whether mandatory or not. Def.'s Mem. at 7-11. The plaintiffs respond, arguing that the defendant's contentions are without merit because (1) the APA's waiver of sovereign immunity applies in this case as they are seeking non-monetary relief, Pl.'s Reply at 2, and (2), contrary to the defendant's contentions, 42 U.S.C. § 7604(a)(2) of the Clean Air Act does not preclude the relief they are seeking to obtain. Id. at 5.

  IV. Legal Analysis

  The Court must begin its analysis by determining whether the Clean Air Act vests subject matter jurisdiction in this Court because if it does, an assessment of the Court's jurisdiction pursuant to the APA is unnecessary as subject matter jurisdiction under the APA only lies when "there is no other adequate remedy in a court." 5 U.S.C. § 704; see Bennett v. Spear, 520 U.S. 154, 161-62 (1997). The essence of this analysis requires the Court to determine whether 42 U.S.C. § 7604(a)(2) waives the government's sovereign immunity such that the Court has subject matter jurisdiction in this case. The answer to this question requires an interpretation of the statute and its associated regulations. When construing these provisions, the Court is mindful that a waiver of sovereign immunity may not be implied, but rather, there must be an "`unequivocal expression'" of congressional intent to waive the Government's immunity. Lane v. Pena, 518 U.S. 187, 192 (1996). And, any waiver of sovereign immunity must be narrowly construed in favor of the government. United States Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992). Page 6

  "The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used." United States v. Goldenberg, 168 U.S. 95, 102-03 (1897) (internal quotation marks omitted). "[I]t is an elementary principle of statutory construction that, in construing a statute, [this Court] must give meaning to all the words in the statute." Lewis v. Barnhart, 285 F.3d 1329, 1332 (11th Cir. 2002) (per curiam) (citations omitted) (emphasis in original). "[W]hen the statute's language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms." Lamie v. United States Tr., 540 U.S. 526, 534, 124 S.Ct. 1023, 1030 (2004) (internal quotation marks omitted). Thus, in such situations, "resort to legislative history is not appropriate in construing the plain statutory language." United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 494 (D.C. Cir. 2004). If the plain meaning of the statute leads to an "absurd or futile result?, however, [the Supreme] Court has looked beyond the words to the purpose of the act." Perry v. Commerce Loan Co., 383 U.S. 392, 400 (1966) (quoting United States v. American Trucking Ass'ns, 310 U.S. 534, 543 (1940)). The District of Columbia Circuit has held that "literal interpretation need not rise to the level of `absurdity' before recourse is taken to the legislative history, . . . [but] there must be evidence that Congress meant something other than what it literally said before a court can depart from plain meaning." Engine Mfrs. Ass'n v. E.P.A., 88 F.3d 1075, 1088 (D.C. Cir. 1996). When interpreting a statute, an agency's interpretation of the statute it is charged with administering is entitled to deference. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984). However, the Court owes no deference to an agency's interpretation of a statute that defines this Court's subject matter jurisdiction. Fox Television Stations, Inc. v. F.C.C., 280 F.3d 1027, 1038-39 Page 7 (D.C. Cir. 2002) (citing Adams Fruit Co. v. Barrett, 494 U.S. 638, 650 (1990)). Moreover, the Court

 
must give substantial deference to an agency's interpretation of its own regulations. [The Court's] task is not to decide which among several competing interpretations best serves the regulatory purpose. Rather, the agency's interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (inner quotations and citations omitted). Thus, this Court must "accord an agency's interpretation of its own regulations a `high level of deference,' accepting it `unless it is plainly wrong.'" Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (quoting Gen. Carbon Co. v. OSHRC, 860 F.2d 479, 483 (D.C. Cir. 1988)). However, "[a]s the Supreme Court recently stressed, . . . judicial deference towards an ...

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