The opinion of the court was delivered by: Paul L. Friedman United States District Judge
In Sierra Club v. Jackson, Civil Action No. 01-1537, 2011 WL 181097 (D.D.C. Jan. 20, 2011), this Court ordered the Environmental Protection Agency to promulgate long-overdue emission standards under the Clean Air Act by February 21, 2011. See Sierra Club v. Jackson, 2011 WL 181097, at *14. In accordance with that order, EPA signed two final rules regulating hazardous air pollutants on February 21, 2011. But then, two days before those rules were to go into effect, EPA imposed an administrative stay on their effective date.
On July 14, 2011, Sierra Club filed a complaint in this Court seeking judicial review of that administrative stay. This matter now is before the Court on EPA's motion to dismiss Sierra Club's complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Upon consideration of the parties' papers, the oral arguments presented by counsel on September 8, 2011, the relevant legal authorities, and the entire record in this case, the Court will deny EPA's motion to dismiss.*fn1
This case arises from seven related cases, consolidated under Civil Action No. 01-1537, that were filed in 2001 before this Court. The 2001 proceedings concerned the EPA's failure to discharge fully its duty under the 1990 Clean Air Act amendments to promulgate regulations governing the discharge of certain hazardous air pollutants. See Sierra Club v. Jackson, 2011 WL 181097, at *1; Sierra Club v. Johnson, 444 F. Supp. 2d 46, 47 (D.D.C. 2006).
As the Court previously has discussed, Section 112(c)(6) of the Clean Air Act requires that EPA regulate the sources of especially dangerous hazardous air pollutants by assuring that sources accounting for 90% of those pollutants are subject to protective emission standards. See 42 U.S.C. § 7412(c)(6); see also Sierra Club v. Jackson, 2011 WL 181097, at *2. By statute, EPA was to have promulgated its Section 112(c)(6) emission standards, among others, by November 15, 2000. 42 U.S.C. § 7412(c)(6).
EPA failed to comply with that statutory deadline. See Sierra Club v. Jackson, 2011 WL 181097, at *3. Consequently, in 2001, Sierra Club filed seven different complaints against EPA before this Court, each seeking relief for EPA's failure to discharge a different aspect of its regulatory duties under the Clean Air Act. Id.
[Dkt. No. 19]; the plaintiff's opposition to the defendant's motion to dismiss ("Opp.") [Dkt. No. 22]; the reply of intervenors to plaintiff's opposition to defendant's motion to dismiss ("Intervenors' Reply") [Dkt. No. 24]; the plaintiff's reply to intervenors' response in support of defendant's motion to dismiss for lack of subject matter jurisdiction ("Pl. Reply to Intervenors' Response") [Dkt. No. 26]; and the defendant's reply in support of its motion to dismiss for lack of subject matter jurisdiction ("Reply") [Dkt. No. 27].
On March 31, 2006, the Court issued an Order in the consolidated cases requiring that EPA promulgate emission standards under the Clean Air Act on a prescribed schedule. See Sierra Club v. Jackson, 2011 WL 181097, at *3-4. After the Court granted a number of EPA's unopposed requests for extensions, ultimately EPA was required to comply with its Section 112(c)(6) obligations by January 16, 2011. See id. In December 2010, however, EPA moved for an extension of that deadline to April 13, 2012. Id. at *5. The Court denied that request and ordered that EPA promulgate the required emission standards by February 21, 2011. See id. at *14.
In accordance with that order, on February 21, 2011, EPA signed two rules regulating emission standards: (1) the "Boiler Rule," defined by EPA as a rule "to regulate emissions of hazardous air pollutants . . . from industrial, commercial, and institutional boilers and process heaters located at major sources of [hazardous air pollutant] emissions"; and (2) the "CISWI Rule," defined by EPA as a rule to "regulate emissions of certain air pollutants from commercial and industrial solid waste incineration units." 76 FED. REG. 28,662, at 28,663 (May 18, 2011). One month later, on March 21, 2011, EPA published these two rules in the Federal Register and established an effective date for both rules of May 20, 2011. See id. Also on March 21, 2011, EPA announced that it was initiating an administrative reconsideration process with respect to certain aspects of both rules, see id., a procedure provided for under the Clean Air Act. See 42 U.S.C. 7607(d)(7)(B).
Shortly thereafter, multiple parties, including Sierra Club, filed petitions for review of the Boiler Rule and the CISWI Rule in the United States Court of Appeals for the District of Columbia Circuit. The court of appeals consolidated 16 petitions for review of the Boiler Rule into one proceeding, U.S. Sugar Corp v. EPA, No. 11-1108, and consolidated 17 petitions for review of the CISWI Rule into another proceeding, American Forest & Paper Ass'n v. EPA, No. 11-1125. Those petitions for review present substantive challenges to the legal sufficiency of the Boiler Rule and the CISWI Rule under the Clean Air Act, a matter that both Sierra Club and EPA agree is reserved for the exclusive jurisdiction of the court of appeals. See 42 U.S.C. § 7607(b)(1); see also Sierra Club v. Johnson, 444 F. Supp. 2d at 60.
While those petitions for review were pending in the court of appeals, on May 18, 2011, two days before the Boiler Rule and the CISWI Rule were to go into effect, EPA issued a notice, referred to by the agency as the "Delay Notice," staying the effective date of both rules "until the proceedings for judicial review of these rules [in the court of appeals] are complete or the EPA completes its reconsideration of the rules, whichever is earlier." 76 FED.
REG. at 28,664. In the Delay Notice, EPA made explicit that it was staying the effective date of these two rules "pursuant to the APA [that is, the Administrative Procedure Act], rather than . . . the Clean Air Act." Id. at 28,663. Specifically, EPA stated that it was acting pursuant to its authority under 5 U.S.C. § 705 of the APA, rather than 42 U.S.C. § 7607(d)(7)(B) of the Clean Air Act. Id.
Sierra Club filed this lawsuit on July 14, 2011 to challenge the validity of EPA's Delay Notice. See generally Compl. In its complaint, Sierra Club asserts that it has a cause of action against EPA under the APA, and that this Court has jurisdiction to review the Delay Notice under the federal question statute, 28 U.S.C. § 1331. Compl. ¶ 8. Sierra Club then contends that the Delay Notice is unlawful for three independent reasons: (1) EPA failed to provide notice or an opportunity for comment before issuing the Delay Notice, id. ¶¶ 33-36; (2) EPA lacked the authority to issue the Delay Notice, id. ¶¶ 37-43; and (3) EPA failed to provide adequate justification for the issuance of the Delay Notice. Id. ¶¶ 44-47.*fn2 In its request for relief, Sierra Club asks that the Court declare the Delay Notice unlawful and that the Court vacate it. Id. at 10.
On August 11, 2011, EPA filed a motion to dismiss Sierra Club's complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Sierra Club filed an opposition, and EPA replied.*fn3 The Court heard oral argument on September 8, 2011. This matter now is ripe for decision.
Federal courts are courts of limited jurisdiction, with the ability to hear only the cases entrusted to them by a grant of power contained in either the Constitution or in an act of Congress. See, e.g., Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939, 945 (D.C. Cir. 2005); Hunter v. District of Columbia, 384 F. Supp. 2d 257, 259 (D.D.C. 2005). On a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing that the Court has jurisdiction. See Brady Campaign to Prevent Gun Violence United with the Million Mom March v. Ashcroft, 339 F. Supp. 2d 68, 72 (D.D.C. 2004). In determining whether to grant a motion to dismiss for lack of subject matter jurisdiction, the Court must construe the complaint in the plaintiff's favor and treat all well-pled allegations of fact as true. See Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005). The Court need not accept unsupported inferences or legal conclusions cast as factual allegations. See Primax Recoveries, Inc. v. Lee, 260 F. Supp. 2d 43, 47 (D.D.C. 2003). Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Court may dispose of the motion on the basis of the complaint alone, or it may consider materials beyond the pleadings "as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Board of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000); see Lopez v. Council on American-Islamic Relations Action Network, Inc., 741 F. Supp. 2d 222, 231 (D.D.C. 2010).
III. THE ADMINISTRATIVE PROCEDURE ACT AND THE CLEAN AIR ACT
In issuing the Delay Notice, EPA made explicit that it was acting under the APA, 5 U.S.C. § 705, rather than the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B). 76 FED. REG. at 28,663-64. As EPA stated in the Delay Notice, 5 U.S.C. § 705 provides that "[w]hen an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review." 5 U.S.C. § 705; see 76 FED. REG. at 28,663. By contrast, the authority to stay a rule under the Clean Air Act is more limited, providing that a rule issued under the Clean Air Act may be stayed by the EPA (or a ...