315 F. Supp. 3d 72
D.C. Cir.2018Background
- EPA promulgated the Steam Electric Power Plant Effluent Limitations Guidelines (ELG Rule) in November 2015, setting effluent limitations and compliance deadlines for six wastestreams from steam-electric power plants.
- In April 2017 EPA issued an "Indefinite Stay" under APA § 705 that postponed compliance deadlines for five of those wastestreams while EPA reconsidered the rule.
- Plaintiffs (eight environmental organizations) sued in district court in May 2017 challenging the Indefinite Stay as unlawful under the Administrative Procedure Act (APA).
- In September 2017 EPA withdrew the Indefinite Stay and issued an ELG Rule Amendment (via notice-and-comment rulemaking) that reinstated or revised compliance deadlines (postponing earliest deadlines for two wastestreams to 2020 and restoring deadlines for three others).
- Plaintiffs sought leave to supplement their complaint to add claims challenging the September 2017 Amendment; EPA moved to dismiss the district-court case as moot because the Stay was withdrawn and replaced.
- The district court denied leave to supplement (futility and undue delay) and granted EPA’s motion to dismiss for lack of jurisdiction as the Stay was moot; plaintiffs’ other pending motions were denied as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs may supplement to add claims challenging the ELG Rule Amendment | Supplement proper; Amendment is not a new "effluent limitation" for § 1369(b)(1) purposes, so district court can hear it | Supplement futile because challenges to effluent limitations or related revisions fall exclusively to courts of appeals under Clean Water Act § 1369(b)(1) | Denied: supplementation futile and would unduly delay; district court lacks jurisdiction over Amendment claims (must seek review in court of appeals) |
| Whether the ELG Rule Amendment promulgated or approved effluent limitations (jurisdictional allocation) | Amendment merely postponed effective dates and did not promulgate new limitations, so § 1369(b)(1) does not apply | Withdrawal of the Stay and changing compliance dates reinstated or set different limitations compared to the immediate status quo; therefore the Amendment "approves or promulgates" limitations under § 1369(b)(1)(E) | Held for Defendants: Amendment promulgated/approved limitations under § 1369(b)(1)(E); exclusive appellate-court review applies |
| Whether the lawsuit challenging the Indefinite Stay is moot after EPA withdrew the Stay and issued the Amendment | Withdrawal is only purported; harms and disruptive effects persist, and future reinstatement is possible | Withdrawal replaced the Stay with a formal rule that reinstates or revises deadlines; intervening events make it impossible to grant effective relief regarding the Stay | Case is moot: Court cannot vacate a withdrawn stay and cannot reinstate deadlines absent a challenge to the Amendment |
| Whether mootness exceptions (voluntary cessation; capable of repetition yet evading review) apply | EPA might reinstate the Stay (or issue similar stays) in future; harms could recur and the action could evade review | EPA replaced the Stay through notice-and-comment rulemaking; no reasonable expectation of recurrence and the action is not inherently too short for litigation here (motions were fully briefed) | Exceptions do not apply; no reasonable expectation of recurrence and dispute was litigable; dismissal for mootness affirmed |
Key Cases Cited
- Nat'l Ass'n of Mfrs. v. Dep't of Def., 138 S. Ct. 617 (2018) (Supreme Court guidance on what agency actions qualify as effluent or similar limitations for § 1369 jurisdictional analysis)
- Friends of the Earth v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (describing NPDES permits’ role in imposing enforceable effluent limitations and the remedial purpose of the Clean Water Act)
- Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597 (2013) (mootness must be assessed at all stages of review)
- Cierco v. Mnuchin, 857 F.3d 407 (D.C. Cir. 2017) (describing mootness exceptions: voluntary cessation and capable-of-repetition-yet-evading-review)
- Coal. of Airline Pilots Ass'ns v. FAA, 370 F.3d 1184 (D.C. Cir. 2004) (explaining when a case is moot because nothing would turn on the court’s decision)