160 F. Supp. 3d 50
D.D.C.2015Background
- In April 2011 several environmental groups petitioned EPA to treat ammonia as a criteria pollutant and to promulgate NAAQS; EPA had not responded as of January 2015.
- Plaintiffs filed suit in D.D.C. in January 2015 seeking to compel EPA to respond within 90 days, asserting unlawful delay under the Administrative Procedure Act (APA).
- Defendants moved to dismiss arguing the Clean Air Act (CAA) citizen-suit provision, 42 U.S.C. § 7604(a), supplies the exclusive waiver of sovereign immunity for unreasonable-delay claims and requires 180 days’ pre-suit notice which plaintiffs did not give.
- The threshold legal question was whether plaintiffs may proceed under the APA or must use the CAA citizen-suit procedure (with its 180-day notice).
- The Court held that the 1990 amendments to § 7604(a) brought APA-style unreasonable-delay claims within the CAA citizen-suit provision, so the CAA provides an adequate remedy and its 180-day notice requirement is jurisdictional.
- Because plaintiffs admitted they did not provide the 180-day notice, the Court found no waiver of sovereign immunity and dismissed for lack of subject-matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether APA provides waiver so plaintiffs may sue for unreasonable delay without complying with CAA notice | APA supplies duty to act within reasonable time (5 U.S.C. § 555) and thus is proper vehicle | CAA § 7604(a) supplies remedy for unreasonable-delay claims and contains jurisdictional 180-day notice; APA cannot be used to evade it | CAA § 7604(a) covers APA-style unreasonable-delay claims; APA cannot be invoked because CAA provides adequate remedy |
| Whether § 7604(a) covers only nondiscretionary duties "under this chapter" or also APA unreasonable-delay claims | § 7604(a) limited to nondiscretionary CAA duties (Thomas-era reading) | 1990 amendments and legislative history expanded district-court jurisdiction to compel agency action unreasonably delayed, including APA duties | 1990 amendments and legislative history show Congress intended to bring APA unreasonable-delay claims within § 7604(a) |
| Whether failure to give 180 days’ notice deprives court of jurisdiction | Notice not required for APA suit; APA should allow suit now | 180-day notice is a jurisdictional condition for CAA citizen suits and plaintiffs failed to comply | Notice requirement is jurisdictional; plaintiffs’ failure to give notice means no waiver of sovereign immunity and dismissal is required |
| Whether APA § 702 or § 704 allows plaintiffs to proceed despite CAA notice rule | APA waives sovereign immunity for agency action review and should allow relief | APA excludes review where another statute provides an adequate remedy or forbids relief; cannot circumvent CAA notice | APA does not waive immunity here because CAA provides an adequate remedy and expressly conditions relief on pre-suit notice |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing and plaintiff’s burden to establish jurisdiction)
- Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (federal courts are courts of limited jurisdiction)
- FDIC v. Meyer, 510 U.S. 471 (sovereign immunity shields federal agencies absent waiver)
- Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir. pre-1990 decision limiting § 7604(a) to nondiscretionary duties)
- Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544 (D.C. Cir. concluding 1990 amendments shifted unreasonable-delay jurisdiction to district courts)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (unreasonable-delay claim requires a duty to act)
- Hallstrom v. Tillamook County, 493 U.S. 20 (pre-suit notice provisions are mandatory conditions precedent)