United States District Court, District of Columbia
S. CHUTKAN United States District Judge.
the Humane Society of the United States, Association of
Irritated Residents, Environmental Integrity Project, Friends
of the Earth, and Sierra Club have brought this action
against the Environmental Protection Agency ("EPA")
for declaratory and injunctive relief pursuant to the
Administrative Procedure Act ("APA"), 5 U.S.C.
§ 551 etseq. Plaintiffs seek to compel the EPA
to provide a response to their 2009 petition for rulemaking,
which requests that the EPA regulate Concentrated Animal
Feeding Operations ("CAFOs") as a source of air
pollution under the Clean Air Act ("CAA"), 42
U.S.C. § 7401 et seq. Plaintiffs allege that
the EPA's failure to respond to their petition
constitutes a violation of the APA, 5 U.S.C. § 555.
moved to dismiss under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), arguing that the court lacks subject
matter jurisdiction because Plaintiffs failed to provide
notice, as required under Section 304(a) of the Clean Air
Act, before filing this lawsuit. For the reasons set forth
below, the court will GRANT Defendants' motion to
requires the EPA “from time to time” to publish
and revise a list of categories of “stationary
sources” it will regulate. 42 U.S.C. §
7411(b)(1)(A). “The term ‘stationary source'
means any building, structure, facility, or installation
which emits or may emit any air pollutant.” 42 U.S.C.
§ 7411(a)(3); see 42 U.S.C. § 7602(z).
are industrial animal production facilities used to house and
raise livestock until they are sent to slaughter.
(Compl. ¶ 2). Plaintiffs want the EPA to list
CAFOs as a “stationary source” under the CAA, and
to promulgate certain standards and regulations relating to
them. (Compl. ¶ 6). To this end, in 2009 Plaintiffs
filed a petition for rulemaking with the EPA pursuant to the
APA, which provides that agencies must “give an
interested person the right to petition for the issuance,
amendment or repeal of a rule.” 5 U.S.C. § 553(e).
The APA requires that, when a rulemaking petition is filed,
“[w]ith due regard for the convenience and necessity of
the parties or their representatives . . . each agency shall
proceed to conclude a matter presented to it.” 5 U.S.C.
§ 555(b). If, however, an agency fails to respond to the
petitioner “within a reasonable time, ” the
petitioner may attempt to compel a response by seeking
judicial review. 5 U.S.C §§ 555(b), 555(e),
551(13); 5 U.S.C. §§ 702, 706.
initial communications between the parties, on November 1,
2013, the EPA informed Plaintiffs that it “did not
intend to substantively address the Petition until after it
completed an administrative settlement agreement that it
entered into with the CAFO industry.” (Compl. ¶
82). Plaintiffs filed this suit in January 2015, more than
five years after filing the 2009 petition.
undisputed that the EPA's obligations with respect to
revising CAFO standards stem from the CAA, that the duty to
rule on Plaintiffs' petition derives from the APA, and
that the agency has not responded to the petition for
rulemaking. However, the parties disagree as to whether the
court has jurisdiction to hear this case under the APA or the
CAA. If the court's jurisdiction arises under the APA,
then this action may go forward. If, however, jurisdiction
arises under the CAA, then this action cannot be maintained
because under the CAA's Citizen Suit Provision, 42 U.S.C.
§ 7604(a)(2), EPA's waiver of sovereign immunity is
conditioned on the requirement that prospective plaintiffs
provide EPA with 180 days' notice before filing suit, and
Plaintiffs did not provide such notice.
courts are courts of limited jurisdiction and, as such, a
district court “may not exercise jurisdiction absent a
statutory basis.” Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 552 (2005); see
also Fed. R. Civ. P. 12 (“If the court determines
at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.”). “Limits on
subject-matter jurisdiction ‘keep the federal courts
within the bounds the Constitution and Congress have
prescribed, ' and those limits ‘must be policed by
the courts on their own initiative.'” Watts v.
SEC, 482 F.3d 501, 505 (D.C. Cir. 2007) (quoting
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583
(1999)). Such limits are especially important in the agency
review context, where “Congress is free to choose the
court in which judicial review of agency decisions may
occur.” Am. Petroleum Inst. v. SEC, 714 F.3d
1329, 1332 (D.C. Cir. 2013) (internal quotation marks
omitted). The law presumes that “a cause lies outside
[the court's] limited jurisdiction” unless the
party asserting jurisdiction establishes otherwise.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). Thus, the plaintiff bears the burden of
establishing jurisdiction by a preponderance of the evidence.
See Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992); Shekoyan v. Sibley Int'l Corp., 217
F.Supp.2d 59, 63 (D.D.C. 2002).
evaluating a motion to dismiss under Rule 12(b)(1), the court
must “assume the truth of all material factual
allegations in the complaint and ‘construe the
complaint liberally, granting plaintiff the benefit of all
inferences that can be derived from the facts
alleged.'” Am. Nat'l Ins. Co. v. FDIC,
642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v.
Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).
Nevertheless, “‘the court need not accept factual
inferences drawn by plaintiffs if those inferences are not
supported by facts alleged in the complaint, nor must the
Court accept plaintiff's legal conclusions.'”
Disner v. United States, 888 F.Supp.2d 83, 87
(D.D.C. 2012) (quoting Speelman v. United States,
461 F.Supp.2d 71, 73 (D.D.C. 2006)). Further, under Rule
12(b)(1), the court “is not limited to the allegations
of the complaint, ” Hohri v. United States,
782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds,
482 U.S. 64 (1987), and “a court may consider such
materials outside the pleadings as it deems appropriate to
resolve the question [of] whether it has jurisdiction to hear
the case.” Scolaro v. D.C. Bd. of Elections &
Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000) (citing
Herbert v. Nat'l Acad. of Scis., 974 F.2d 192,
197 (D.C. Cir. 1992)).
question of whether this court has jurisdiction in this
matter turns on whether the government has waived immunity to
suit, because “[s]overeign immunity is jurisdictional
in nature.” FDIC v. Meyer, 510 U.S. 471, 475,
(1994); see also United States v. Mitchell, 463 U.S.
206, 212 (1983) (“It is axiomatic that the United
States may not be sued without its consent and that the
existence of consent is a prerequisite for
general matter, a suit challenging an agency action may be
brought in federal court under the APA, which “provides
a cause of action for the plaintiff and a waiver of sovereign
immunity by the government.” Envt'l. Integrity
Project v. United States Envt'l. Prot. Agency, No.
15-0139 (ABJ), 2015 WL 7737307, at *3 (D.D.C. Dec. 1, 2015)
(internal citation omitted). However, this waiver of immunity
is limited-it applies only to an “[a]gency action made
reviewable by statute and final agency action for which there
is no other adequate remedy in a court.” 5 U.S.C.
§ 704; see also Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S.Ct. 2199, 2204
(2012) (“[T]he APA's waiver of immunity comes with
an important carve-out: The waiver does not apply ‘if
any other statute that grants consent to suit expressly or
impliedly forbids the relief which is sought' by the
argue that the CAA provides an adequate remedy because its
Citizen Suit Provision, 42 U.S.C. § 7604, gives
individuals the right to sue the Administrator of the EPA
“to compel . . . agency action unreasonably delayed,
” which is the gravamen of Plaintiffs' case.
(Def's Mot. to Dismiss at 12). However, the Citizen Suit
provision requires that a plaintiff provide the EPA with
notice 180 days before commencing an unreasonable delay suit.
(Id.); see also 42 U.S.C. § 7604(a).
Defendants argue that ...