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Humane Society of United States v. McCarthy

United States District Court, District of Columbia

September 19, 2016

THE HUMANE SOCIETY OF THE UNITED STATES, et al., Plaintiffs,
v.
GINA MCCARTHY, in her official Capacity as Administrator, United States Environmental Protection Agency, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN United States District Judge.

         Plaintiffs 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.

         Defendants 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 dismiss.[1]

         I. BACKGROUND

         The CAA 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).

         CAFOs 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.

         After 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.

         It is 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.[2]

         II. LEGAL STANDARD

         Federal 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).

         In 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)).

         III. ANALYSIS

         The 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 jurisdiction.”).

         As a 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 plaintiff.”).

         Defendants 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. ยง 7604(a). Defendants argue that ...


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