United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE.
the Court are five pending motions. For the reasons that
follow, the Court will deny the Plaintiffs' Motion for
Leave to Amend and Supplement the Complaint, Dkt. 63, and
grant the Defendants' Motion to Dismiss, Dkt. 60. In
addition, because the Court will grant dismissal, the Court
will deny as moot the Plaintiffs' Motion for Summary
Judgment, Dkt. 20, the Defendants' Cross-Motion for
Summary Judgment or Dismissal or Transfer, Dkt. 32, and the
Intervenor-Defendant's Cross-Motion for Summary Judgment
or Dismissal or Transfer, Dkt. 49.
Clean Water Act prohibits “the discharge of any
pollutant by any person” except as authorized by the
Act, 33 U.S.C. § 1311(a), and it requires the
Environmental Protection Agency and its Administrator
(collectively, the EPA) to promulgate effluent limitations
and standards governing the discharge of pollutants from
power plants, see Id. §§ 1311(b), 1314(b),
1316(a), 1317, 1342(a). An “effluent limitation”
is “any restriction established by a State or the
Administrator on quantities, rates, and concentrations”
of certain pollutants “discharged from point sources,
” such as power plants, into various waters.
Id. § 1362(11). The Clean Water Act also
requires the EPA to review and, if necessary, revise its
effluent limitations and standards. See Id.
§§ 1311(d), 1314, 1317(b).
enforces effluent limitations and standards through, among
other programs, the National Pollutant Discharge Elimination
System program. Under that program, the EPA issues permits
allowing power plants to discharge pollutants that wash
downstream “upon [the] condition that such discharge
will meet . . . all applicable requirements under [various
provisions of the Clean Water Act].” Id.
§ 1342(a)(1). The permits “impose limitations on
the discharge of pollutants, and establish related monitoring
and reporting requirements, in order to improve the
cleanliness and safety of the Nation's waters.”
Nat'l Ass'n of Mfrs. v. Dep't of Def.,
138 S.Ct. 617, 625 (2018) (quoting Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 174
case involves three actions taken by the EPA with regard to
effluent limitations under the Clean Water Act: a final rule
promulgated in 2015, an indefinite stay issued in April 2017,
and a subsequent final rule promulgated in September 2017.
Effluent Limitations under the Clean Water Act
promulgated the Steam Electric Power Plant Effluent
Limitations Guidelines Rule (ELG Rule) on November 3, 2015.
See 80 Fed. Reg. 67, 838. Relevant here, the ELG
Rule addressed effluent limitations and standards for six
wastestreams generated by steam electric power plants: bottom
ash transport water, combustion residual leachate, flue gas
desulfurization wastewater, flue gas mercury control
wastewater, fly ash transport water, and gasification
wastewater. See Id. at 67, 841-42. The ELG Rule
required most power plants to comply with the effluent
limitations “as soon as possible” after November
1, 2018, and no later than December 31, 2023. Id. at
67, 854. Within that range, the particular compliance date
for each plant would be determined by the plant's
National Pollutant Discharge Elimination System permit, which
is typically issued by a state environmental agency.
See 40 C.F.R. § 423.11(t). The ELG Rule also
provided for effluent limitations that took effect
immediately for “legacy wastewater, ”
i.e., certain wastewaters generated after the ELG
Rule but before the future compliance deadlines kicked in. 80
Fed. Reg. at 67, 854-55. The ELG Rule quickly became the
subject of legal challenges: the EPA received seven petitions
for review, which were consolidated before the U.S. Court of
Appeals for the Fifth Circuit. See Consolidation
Order, U.S. Judicial Panel on Multidistrict Litigation,
Sw. Elec. Power Co. v. EPA, No. 15-60821 (5th Cir.
Dec. 8, 2015), Doc. 513301255; see also 82 Fed. Reg.
43, 494, 43, 495. The EPA also received petitions for
administrative reconsideration of the ELG Rule. See
82 Fed. Reg. at 43, 495.
April 25, 2017, the EPA issued an Indefinite Stay of the ELG
Rule. 82 Fed. Reg. 19.005. As authority for the Indefinite
Stay, the EPA invoked Section 705 of the Administrative
Procedure Act, which permits an agency to “postpone the
effective date of action taken by it, pending judicial
review, ” when the agency “finds that justice so
requires.” 5 U.S.C. § 705; see also 82
Fed. Reg. at 19, 005-06. According to the EPA, the Indefinite
Stay sought to preserve the regulatory status quo while the
Fifth Circuit litigation remained pending and the EPA
reconsidered the ELG Rule. Id. at 19, 005. The Stay
indefinitely postponed the compliance deadlines for five of
the six wastestreams addressed by the ELG Rule (all but
combustion residual leachate). Id. at 19, 005-06. In
addition, the EPA noted that it would conduct
notice-and-comment rulemaking in order to revise the ELG
Rule's compliance deadlines, see Id. at 19.006,
which the EPA initiated with a notice of proposed rulemaking
in June 2017, see 82 Fed. Reg. 26, 017.
September 18, 2017, the EPA promulgated the ELG Rule
Amendment. See Postponement of Certain Compliance
Dates for ELGs for Steam Electric Power Generating Point
Source Category, 82 Fed. Reg. 43, 494. The ELG Rule Amendment
withdraws the Indefinite Stay and changes the earliest
compliance deadlines for two wastestreams (bottom ash
transport water and flue gas desulfurization wastewater) from
November 1, 2018 to November 1, 2020 while the EPA completes
a new rulemaking on those wastestreams. Id. at 43,
496, 43, 498, 43, 500. Also, by withdrawing the Indefinite
Stay, the Amendment changes the “no later than”
compliance deadline for bottom ash transport water and flue
gas desulfurization wastewater to December 31, 2023, as it
had been under the ELG Rule. Id. at 43, 496; see
also 40 C.F.R. § 423.13(g)(1)(i), (k)(1)(i). And,
for the other three wastestreams affected by the Indefinite
Stay, the Amendment permits the effluent limitations and
standards initially imposed by the ELG Rule to go back into
effect, and the Amendment announces that the EPA does not
plan to conduct a new rulemaking for those wastestreams.
See 82 Fed. Reg. at 43, 494-96, 43, 498.
plaintiffs are eight environmental advocacy organizations
that seek to improve water quality, particularly by reducing
water pollution from large sources such as power
plants.Compl. ¶ 9, Dkt. 1. On May 3, 2017,
they filed this action as a challenge to the Indefinite Stay
for allegedly violating the Administrative Procedure Act in a
number of ways. Id. ¶¶ 1, 19-20, 56-89. On
June 13, 2017, the EPA moved to dismiss the case, transfer it
to the Fifth Circuit pursuant to 28 U.S.C. § 1631, or
stay proceedings. Dkt. 18. The next day, the plaintiffs moved
for summary judgment. Dkt. 20. The Court then denied the
EPA's motion to dismiss without prejudice but invited the
EPA to reassert the same arguments in a consolidated brief in
opposition to the plaintiffs' summary judgment motion.
Dkt. 23. In the ensuing consolidated briefing, the EPA
accepted the Court's invitation by opposing the
plaintiffs' motion for summary judgment and cross-moving
for summary judgment, dismissal, or transfer. Dkt. 32. The
consolidated briefing concluded on September 11, 2017.
See Dkt. 57; Dkt. 58.
week later, the EPA promulgated the ELG Rule Amendment. Soon
after, on September 21, 2017, the EPA again moved to dismiss
this case, arguing that the case is moot because the ELG Rule
Amendment withdraws the Indefinite Stay challenged by the
plaintiffs. Dkt. 60.
October 5, 2017, the plaintiffs moved for leave to amend and
supplement their complaint to add two claims challenging the
ELG Rule Amendment under the Administrative Procedure
See Dkt. 63; see also Proposed Am. Compl.
¶¶ 104-111, Dkt. 63-3. In opposition, the EPA
argued that the proposed claims are futile because the Court
lacks jurisdiction over them. Dkt. 70 at 2-6. In addition,
the intervenor-defendants argued that the proposed claims are
futile because 28 U.S.C. § 2112 would require this Court
to transfer the proposed claims to the Fifth Circuit and,
moreover, the proposed claims would unduly expand and delay
the litigation before this Court. Dkt. 69 at 18-21, 26-29.
Briefing concluded on October 26, 2017. See Dkt. 71.
The case was reassigned to the undersigned judge on December
4, 2017. The plaintiffs have since submitted a notice of
supplemental authority regarding a recently decided United
States Supreme Court case, National Ass'n of
Manufacturers v. Department of Defense, 138 S.Ct. 617,
623 (2018). Dkt. 74. The Court now addresses the
plaintiffs' motion for leave to amend and supplement the
complaint, followed by the EPA's motion to dismiss.
Plaintiffs' Motion for Leave to Amend and Supplement the
their initial complaint challenged the Indefinite Stay, the
plaintiffs now seek to add two claims challenging the ELG
Rule Amendment. Dkt. 63. The proposed claims assert that the
EPA violated the Administrative Procedure Act by promulgating
the ELG Rule Amendment (1) in excess of the agency's
statutory authority and (2) without considering all relevant
factors and providing an adequate justification for the
agency's decision. See Proposed Am. Compl.
¶¶ 104-11. The proposed claims, however, are
futile, and they would unduly delay and alter the scope of
this litigation. Therefore, the Court will deny the
addition to a pleading may be an “amendment”
under Rule 15(a) or a “supplement” under Rule
15(d) of the Federal Rules of Civil Procedure. The
distinction “is in most instances of little moment,
” but an amendment “typically rest[s] on matters
in place prior to the filing of the original
pleading, ” while the “distinguishing feature of
[a supplement] is that it sets forth ‘transactions or
occurrences or events which have happened since the date of
the pleading sought to be supplemented.'”
United States v. Hicks, 283 F.3d 380, 385 (D.C. Cir.
2002) (quoting Fed.R.Civ.P. 15(d)). Because the plaintiffs
here seek to add claims challenging a rule promulgated months
after the initial complaint, the plaintiffs'
request is best styled a motion for leave to supplement their
15(d) of the Federal Rules of Civil Procedure provides that
“the court may, on just terms, permit a party
to serve a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the
pleading to be supplemented.” Fed.R.Civ.P. 15(d)
(emphasis added). Some cases state that Rule 15(d) motions
are “subject to the same standard” as Rule 15(a)
motions, see, e.g., Wildearth Guardians v.
Kempthorne, 592 F.Supp.2d 18, 23 (D.D.C. 2008), which
would mean that leave is warranted “unless there is
sufficient reason, such as ‘undue delay, bad faith or
dilatory motive . . . repeated failure to cure deficiencies
by [previous] amendments . . . [or] futility of
amendment.'” Firestone v. Firestone, 76
F.3d 1205, 1208 (D.C. Cir. 1996) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)); see also Cause of
Action Inst. v. DOJ, No. 16-2226, 2017 WL 4541352, at *3
(D.D.C. Oct. 10, 2017) (labeling any difference between the
two motions “a matter of semantics”).
two rules are not the same. Rule 15(d) is permissive: it
tells courts that they “may” grant leave to
supplement, while Rule 15(a)(2) states that courts
“should” give leave to amend “when justice
so requires.” Fed.R.Civ.P. 15; see also Jama v.
ICE, 543 U.S. 335, 346 (2005) (“The word
‘may' customarily connotes discretion. That
connotation is particularly apt where . . . ‘may'
is used in contraposition to the word ‘shall' . . .
.”); Lopez v. Davis, 531 U.S. 230, 241 (2001)
(“Congress' use of the permissive ‘may' .
. . contrasts with the legislators' use of a mandatory
‘shall' in the very same section” and thus
confers an “authority, but not [a] duty[.]”);
Baylor v. Mitchell Rubenstein & Assocs., 857
F.3d 939, 947 (D.C. Cir. 2017) (“[I]t is clear that [a
Rule's] use of the permissive verb ‘may' refers
to the permissive nature of the district judge's
authority . . . .”); Anglers Conservation Network
v. Pritzker, 809 F.3d 664, 671 (D.C. Cir. 2016)
(“Ordinarily, legislation using ‘shall'
indicates a mandatory duty while legislation using
‘may' grants discretion.”); Baptist
Mem'l Hosp. v. Sebelius, 603 F.3d 57, 63 (D.C. Cir.
2010) (“‘[M]ay' is permissive rather than
obligatory.”); Ala. Power Co. v. FERC, 160
F.3d 7, 12 (D.C. Cir. 1998) (same); Antonin Scalia &
Bryan A. Garner, Reading Law 112 (2012) (stating that the
“traditional, commonly repeated rule . . . that
‘may' is permissive” is “so obvious as
to be hardly worth the saying”). The plain text of Rule
15(d) thus permits a court to grant leave to supplement, but
imposes no standard requiring a court to do so. See
Fed. R. Civ. P. 15 advisory committee's note to 1963
amendment (“Rule 15(d) is intended to give the court
broad discretion in allowing a supplemental
pleading.”); James Madison Project v. DOJ, 208
F.Supp.3d 265, 277 (D.D.C. 2016) (“The decision to
grant leave under Rule 15(d) is discretionary.”).
looking past the text of the rules to this Circuit's
caselaw discussing them, the Rule 15(d) standard overlaps
with the Rule 15(a)(2) standard, but they are not the
“same standard.” Wildearth Guardians,
592 F.Supp.2d at 23. Compare Firestone, 76 F.3d at
1208, with Hall v. CIA, 437 F.3d 94, 101 (D.C. Cir.
2006). Both standards, however, consider futility and delay.
“[B]oth motions for leave to amend and motions to
supplement should be denied where amendment (or
supplementation) would be futile, ” i.e., if
the proposed claim would not survive a motion to dismiss.
Sai v. DHS, 149 F.Supp.3d 99, 126 (D.D.C. 2015);
see also Hettinga v. United States, 677 F.3d 471,
480 (D.C. Cir. 2012) (affirming denial of leave to supplement
on futility grounds). Also, “[d]elay and prejudice are
precisely the matters to be addressed in considering whether
to grant motions for supplemental pleadings; such motions are
to be ‘freely granted when doing so will promote the
economic and speedy disposition of the entire controversy
between the parties, will not cause undue delay or trial
inconvenience, and will not prejudice the rights of any of
the other parties to the action.'” Hall v.
CIA, 437 F.3d 94, 101 (D.C. Cir. 2006) (quoting 6A
Wright & Miller, Federal Practice & Procedure §
1504, at 186-87 (2d ed. 1990)); see also Firestone,
76 F.3d at 1208. Because futility and delay undergird the
Court's decision to deny plaintiffs' motion for leave
to supplement the complaint, there is no need to further
analyze the precise differences between the two standards at
case, the plaintiffs' proposed claims are futile because
this Court lacks jurisdiction to review them. The
Administrative Procedure Act generally provides for district
court review of EPA actions. 5 U.S.C. § 704. But the
Clean Water Act enumerates seven categories of EPA actions
for which review lies directly and exclusively in the federal
courts of appeals. 33 U.S.C. § 1369(b)(1); see also
Nat'l Ass'n of Mfrs., 138 S.Ct. at 623, 626,
628. Under the category relevant here, the federal courts of
appeals have exclusive jurisdiction to review EPA actions
“in approving or promulgating any effluent limitation
or other limitation under section 1311, 1312, 1316, or 1345
of [the Clean Water Act].” 33 U.S.C. §
1369(b)(1)(E). The Act defines “effluent
limitation” as “any restriction established by a
State or the Administrator on quantities, rates, and
concentrations” of certain pollutants “discharged
from point sources” into various waters. Id.
§ 1362(11). And “an ‘other limitation'
must be similar in kind to an ‘effluent
limitation': that is, a limitation related to the
discharge of pollutants.” Nat'l Ass'n of
Mfrs., 138 S.Ct. at 628. “An ‘other