United States District Court, District of Columbia
G. SULLIVAN, UNITED STATES DISTRICT JUDGE
action the plaintiff, Sierra Club, asks the Court to declare
unlawful the failure of Defendant Rick Perry, in his official
capacity as the Secretary of the United States Department of
Energy (the “Secretary”), to promulgate final
regulations establishing standards for energy efficiency in
manufactured housing pursuant to the Energy Independence and
Security Act of 2007 (“EISA”), 42 U.S.C. §
17071(a)(1), and pursuant to the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706(1). In the
EISA, Congress mandated that these standards
“shall” be established by the Secretary
“[n]ot later than 4 years after December 19,
2007[.]” 42 U.S.C. § 17071(a)(1). The Secretary
does not deny that he was required by statute to publish
final regulations on or before December 19, 2011. Rather, the
Secretary contends that Sierra Club lacks standing to bring
before the Court is the Secretary's motion to dismiss the
amended complaint. Upon careful consideration of the
Secretary's motion, the opposition, and the reply
thereto, the applicable law, and the entire record, the
Secretary's motion to dismiss is DENIED.
For the reasons stated below, the Court finds that Plaintiff
Sierra Club has standing to sue on behalf of its members.
six percent of all homes in the United States are
manufactured homes. Energy Conservation Standards for
Manufactured Housing, 81 Fed. Reg. 39756, 39762 (June 17,
2016). Manufactured housing is an accessible and affordable
housing option, but owners and residents of manufactured
homes have higher utility bills than those living in
traditional “site-built and modular homes in part due
to different criteria for energy conservation and variability
among building codes and industry practice.”
Energy Independence and Security Act
2007, Congress enacted the EISA to, among other things,
“increase the efficiency of products, buildings, and
vehicles, ” with an energy code improvements provision
for manufactured homes. Pub. L. 110-140, 121 Stat 1492 (Dec.
19, 2007) (codified at 42 U.S.C. § 17071(a)(1)). Section
17071(a)(1) provides: “Not later than 4 years after
December 19, 2007, the Secretary shall by regulation
establish standards for energy efficiency in manufactured
housing.” 42 U.S.C. § 17071(a)(1). The Secretary
must establish these standards “after . . . notice and
an opportunity for comment by manufacturers of manufactured
housing and other interested parties” and
“consultation with the Secretary of Housing and Urban
Development, who may seek further counsel from the
Manufactured Housing Consensus Committee.” Id.
§ 17071(a)(2). Further, the statute requires:
The energy conservation standards established under this
section shall be based on the most recent version of the
International Energy Conservation Code [“IECC”]
(including supplements), except in cases in which the
Secretary finds that the code is not cost-effective, or a
more stringent standard would be more cost-effective, based
on the impact of the code on the purchase price of
manufactured housing and on total life-cycle construction and
Id. § 17071(b)(1) (footnote omitted). Finally,
the IECC is revised “every three years.”
Building Energy Codes 101: An Introduction,
10, U.S. Dep't of Energy (May 2010) (“The IECC
applies to both residential and commercial
Codes 101.pd f.
than nine years ago, the United States Department of Energy
(“DOE”) took steps to fulfill its obligations
under the EISA by attempting to promulgate the required
regulations. See, e.g., Am. Compl., ECF No. 14
¶ 15; Energy Efficiency Standards for Manufactured
Housing, 75 Fed. Reg. 7556-01, 7556 (Fed. 22, 2010); 81 Fed.
Reg. at 39756. In February 2010 and June 2016, DOE published
two different advanced notices of proposed rulemaking and
requested public comments. See 75 Fed. Reg. at 7556;
see also 81 Fed. Reg. at 39756. After receiving and
considering the comments, DOE submitted the draft notices to
the White House Office of Information and Regulatory Affairs
(“OIRA”) in 2011 and 2016. Def.'s Mem. of
Points & Authorities in Support of Def.'s Mot. to
Dismiss, ECF No. 18-1 at 7-10 [hereinafter “Def.'s
Mem.”]. The draft notices did not make it through
OIRA's review process, and DOE withdrew them on March 13,
2014 and January 31, 2017, respectively. Id. at 8,
The Secretary contends that “DOE's rulemaking
efforts on energy efficiency for manufactured housing remain
active and ongoing.” Id. at 10. Nonetheless,
in the Secretary's own words, “DOE has yet to
publish final regulations[.]” Id. at 5.
Plaintiff Sierra Club and Its Members
Club is a national, non-profit environmental organization.
Am. Compl., ECF No. 14 ¶ 4; see also Ex. 9, ECF
No. 22-1 at 46, ¶ 5 [hereinafter “Levenshus
Decl.”]. It has 822, 930 members in all fifty states
and Puerto Rico. Ex. 2, ECF No. 22-1 at 7, ¶ 4
[hereinafter “Fashho Decl.”]. According to Sierra
Club, its “purposes include enhancing public health and
the environment and practicing and promoting the responsible
use of the Earth's ecosystems and resources.” Am.
Compl., ECF No. 14 ¶ 4. It states that “Club
members are greatly concerned about air quality and energy
efficiency[.]” Fashho Decl. ¶ 2.
Club identifies some of its members as residents, owners, and
prospective purchasers of manufactured homes. E.g.,
Ex. 3, ECF No. 22-1 at 11-12, ¶¶ 5-8 [hereinafter
“Fineran Decl.”]; Ex. 5, ECF No. 22-1 at 26-28,
¶¶ 4-6, 13 [hereinafter “Flournoy
Decl.”]; Ex. 8, ECF No. 22-1 at 40-42, ¶¶
9-12 [hereinafter “Land Decl.”]. It alleges that
these members include individuals “who reside in older
manufactured homes needing replacement and those who
regularly purchase manufactured homes as part of their
business or who plan to purchase a manufactured
home[.]” Am. Compl., ECF No. 14 ¶ 30. It avers
that “[e]fficency standards save energy and lower
energy bills, saving consumers money over the life of the
manufactured home, ” Levenshus Decl. ¶ 8, and
“standards for new manufactured homes will assist
Sierra Club's members as consumers” to (1)
“reduce the members' consumption of electricity
and natural gas[, ]; (2) “ensur[e] that there is a wide
range of efficient models readily available[, ]” and
(3) “push the market to produce higher efficiency,
premium models.” Id. ¶ 10.
December 18, 2017, Sierra Club filed this action against the
Secretary under the EISA and the APA seeking declaratory
relief and an order to compel “the Secretary to
complete a final rule establishing standards for energy
efficiency in manufactured housing in accordance with section
413 of EISA, 42 U.S.C. § 17071, pursuant to an
expeditious deadline established by this Court[.]”.
Compl., ECF No. 1 at 9 (“Relief Requested”). On
April 2, 2018, the Secretary moved to dismiss the initial
complaint. Def.'s Mot. to Dismiss, ECF No. 12.
April 23, 2018, Sierra Club filed an amended complaint
seeking declaratory and injunctive relief. See
generally Am. Compl., ECF No. 14. Sierra Club asserts a
single claim under Section 17071 (a)(1) of the EISA and
Section 706(1) of the APA, alleging that the
“Secretary's failure to complete a final rule
establish[ing] standards for energy efficiency in
manufactured housing . . . constitutes an agency action
unlawfully withheld under the [APA].” Am. Compl., ECF
No. 14 ¶ 41 (citation and internal quotation marks
omitted). Sierra Club seeks a declaration stating the same.
Id. at 10 (“Relief Requested”). Sierra
Club filed a response to the Secretary's motion to
dismiss on April 30, 2018. Pl.'s Resp., ECF No. 15. On
May 3, 2018, the Court denied as moot the Secretary's
first motion to dismiss in light of the amended complaint.
May 3, 2018 Minute Order.
29, 2018, the Secretary moved to dismiss the amended
complaint on the basis that the Court lacked jurisdiction
over Sierra Club's claim because it failed to establish
standing. See Def.'s Mot. to Dismiss, ECF No.
18; see also Def.'s Mem., ECF No. 18-1. Sierra
Club filed its opposition on June 29, 2018. Pl.'s
Opp'n, ECF No. 22. The Secretary filed his reply on July
20, 2018. Def.'s Reply, ECF No. 26. The Secretary's
motion is ripe and ready for the Court's adjudication.
federal district court may only hear a claim over which it
has subject-matter jurisdiction; therefore, a Rule 12(b)(1)
motion for dismissal is a threshold challenge to a
court's jurisdiction. See Fed. R. Civ. P.
12(b)(1). On a motion to dismiss for lack of subject-matter
jurisdiction, the plaintiff bears the burden of establishing
that the Court has jurisdiction. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561, (1992). In evaluating the
motion, the Court must accept all of the factual allegations
in the complaint as true and give the plaintiff the benefit
of all inferences that can be drawn from the facts alleged.
See Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
2005). However, the Court is “not required . . . to
accept inferences unsupported by the facts ...