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Sierra Club v. Perry

United States District Court, District of Columbia

March 12, 2019

SIERRA CLUB Plaintiff,
v.
RICK PERRY, Secretary, U.S. Department of Energy, Defendant.

          MEMORANDUM OPINION

          EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE

         In this 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 this lawsuit.

         Pending 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.

         I. Background

         Roughly six percent of all homes in the United States are manufactured homes.[1] 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.” Id.

         A. Energy Independence and Security Act

         In 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 operating costs.

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 buildings.”), https://www.energycodes.gov/sites/default/files/becu/BECU Codes 101.pd f.

         More 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.”].[2] 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, 10.[3] 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.

         B. Plaintiff Sierra Club and Its Members

         Sierra 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.

         Sierra 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.

         C. Procedural History

         On 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.

         On 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.

         On May 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.[4] 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.

         II. Legal Standard

         A. Rule 12(b)(1)

         A 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 ...


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