United States District Court, District of Columbia
AMY BERMAN JACKSON UNITED STATES DISTRICT JUDGE
Plaintiffs the Environmental Integrity Project, the Center for Food Safety, the Humane Society of the United States, Clean Wisconsin, Iowa Citizens for Community Improvement, and the Association of Irritated Residents have brought this action against the United States Environmental Protection Agency (“EPA”) and the EPA Administrator, Regina McCarthy, complaining that the agency has not responded to their 2011 petition concerning ammonia gas pollution. Compl. [Dkt. # 1]. Plaintiffs ask the Court to declare that the EPA’s failure to respond to the petition within a reasonable time violates the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., and to compel the agency to respond to the petition within 90 days. Compl., Req. for Relief, at 25.
Defendants maintain that this is an action which falls within the scope of the citizen-suit provision of the Clean Air Act, 42 U.S.C. § 7604(a), and therefore could not have been brought under the APA. Defs.’ Mot. to Dismiss [Dkt. # 11] (“Defs.’ Mot.”) at 1-2. They have moved to dismiss the complaint on the grounds that plaintiffs failed to notify the EPA 180 days prior to commencing this action, as is required by section 304(a) of the Clean Air Act. Id. The Court finds that the citizen-suit provision of the Clean Air Act does provide plaintiffs with an adequate remedy for the wrong they have alleged, and that plaintiffs have failed to comply with its notice requirement. So plaintiffs are not free to bring an action under the APA, and there is no other applicable government waiver of sovereign immunity. Thus, the Court lacks subject matter jurisdiction over this case, and defendants’ motion to dismiss will be granted.
I. The Clean Air Act
The Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq., establishes a program for the regulation and control of air pollution by the federal government and by the states. It requires the EPA to establish National Ambient Air Quality Standards for “a small group of common air pollutants, called criteria pollutants, ” including “ozone, lead, and carbon monoxide.” Sierra Club v. Jackson, 724 F.Supp.2d 33, 35 (D.D.C. 2010), citing 42 U.S.C. §§ 7408-7409, and 40 C.F.R. §§ 50.8, 50.12, 50.15. The statute directs that the EPA Administrator “shall from time to time . . . revise” the list of criteria pollutants. 42 U.S.C. § 7408(a)(1).
The Act also divides jurisdiction to review actions by the EPA between the district courts and the circuit courts. See Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654, 657-58 (D.C. Cir. 1975). Under section 307(b)(1), the United States Court of Appeals for the District of Columbia has exclusive jurisdiction to review an action of the EPA Administrator in promulgating certain national standards and rules, as well as “any other nationally applicable regulations promulgated, or final action taken, by the Administrator.” 42 U.S.C. § 7607(b)(1). The same section provides that an individual may file a petition for review of final actions of the Administrator that have local or regional application only in the federal court of appeals for the appropriate circuit. Id.
Section 304(a), the citizen-suit provision, permits any person to bring a civil action on his own behalf against the EPA Administrator in the district court “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator, ” id. § 7604(a)(2), and it also permits the district courts “to compel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed.” Id. § 7604(a).
II. Factual Background and Procedural History
On April 5, 2011, the Environmental Integrity Project and multiple other national, regional, and community-based organizations submitted a formal petition to the EPA asking it to do several things: find that ammonia gas pollution endangers the public health and welfare; designate ammonia as a “criteria pollutant” under the CAA; and establish National Ambient Air Quality Standards for ammonia. Compl. ¶¶ 1, 4. Plaintiffs state that the EPA has yet to respond to or take any action with respect to their petition. Id. ¶ 5. So on January 28, 2015, plaintiffs initiated this action, and they ask the Court to declare that the EPA’s failure to respond to the petition violates the APA and to order the agency to respond to the petition within 90 days. See generally id.
On April 6, 2015, defendants moved to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defs.’ Mot.; Defs.’ Mem. of P. & A. in Supp. of Defs.’ Mot [Dkt. # 11] (“Defs.’ Mem.”). Plaintiffs opposed the motion on April 23, 2015, Pls.’ Mem. of P. & A. in Opp. to Defs.’ Mot. [Dkt. # 13] (“Pls.’ Opp.”), and defendants filed a reply in support of their motion on May 18, 2015. Defs.’ Reply Mem. in Supp. of Defs.’ Mot. [Dkt. # 15] (“Defs.’ Reply”). One month later, with the Court’s leave, see Min. Order (June 17, 2015), plaintiffs filed a surreply. Pls.’ Surreply [Dkt. # 17].
STANDARD OF REVIEW
The plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int’l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
The district courts of the United States “may not exercise jurisdiction absent a statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). And the United States is not amenable to suit in the federal courts absent an express waiver of sovereign immunity. United States v. Mitchell, 463 U.S. 206, 212 (1983). “Sovereign immunity is jurisdictional in nature.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). When it has not been waived, sovereign immunity shields the federal government, its agencies, and federal officials acting in their official capacities from suit. Id. (the federal government and its agencies); Kentucky v. Graham, 473 U.S. 159, 166-67 (1985) (federal officials in their official capacities). “[A]ny waiver of sovereign immunity must be narrowly construed in favor of the government.” Sierra Club v. Leavitt, 355 F.Supp.2d 544, 547-48 (D.D.C. 2005), citing U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 615 (1992).
In evaluating a motion to dismiss under either Rule 12(b)(1) or Rule 12(b)(6), the Court must “treat the complaint’s factual allegations as true, and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept the plaintiff’s legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
At this stage, the question before the Court is whether it has subject matter jurisdiction to review plaintiffs’ claim that the EPA has unreasonably delayed in responding to their 2011 petition relating to the regulation of ammonia. This turns on whether the government has waived its sovereign immunity as to plaintiffs’ claim, and if so, under which statute the waiver was effectuated - the Administrative Procedure Act or the Clean Air Act, which includes the 180-day notice provision.
Generally, when a plaintiff challenges agency action, the APA provides a cause of action for the plaintiff and a waiver of sovereign immunity by the government. See Am. Road & Transp. Builders Ass’n. v. EPA, 865 F.Supp.2d 72, 80-81 (D.D.C. 2012), aff’d, No. 12-5244, 2013 WL 599474 (D.C. Cir. Jan. 28, 2013) (per curiam). When that is the case, the district courts have subject matter jurisdiction under 28 U.S.C. § 1331, the general federal question statute. Id. However, the APA makes clear that if another statute provides an “adequate remedy in a court, ” the APA cannot supply the cause of action, which means that it cannot serve as the waiver of sovereign immunity either. See 5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”) (emphasis added).
Defendants acknowledge that the APA is the source of an agency’s duty to respond to a petition for rulemaking - including a petition seeking action under the Clean Air Act - within a reasonable time, and that plaintiffs have brought this action to enforce that obligation. See Defs.’ Reply at 2, 6; see also Compl. ¶ 70, citing 5 U.S.C. § 555(b), (e). But they argue that it is the citizen-suit provision of the Clean Air Act, 42 U.S.C. § 7604(a), that waives sovereign immunity for claims that the EPA has unreasonably delayed taking action, and they contend that plaintiffs have failed to satisfy a statutory condition precedent for the waiver of the government’s sovereign immunity here. Defs.’ Mem. at 8-10. Specifically, they point out that plaintiffs failed to provide the EPA with the required 180 days’ notice prior to bringing this action, and they assert that the APA cannot be invoked in an effort to evade that requirement. Id. at 9-13, citing 5 U.S.C. § 702 (“Nothing herein . . . confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.”). Thus, defendants ask the Court to dismiss the case for lack of subject matter jurisdiction or for failure to state a claim in light of plaintiffs’ failure to comply with the notice provision of the CAA. Id. at 8-15.
Plaintiffs do not deny that they failed to provide the EPA with notice of their intent to bring this lawsuit. See Pls.’ Opp. at 2. But they assert that the CAA’s citizen-suit provision is not the source of jurisdiction in this case, because it “waives sovereign immunity only for suits alleging the Administrator failed to perform a nondiscretionary duty.” Id. at 8 (emphasis in original). Because nothing in the CAA requires the EPA to respond to a rulemaking petition, ...