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