Sierra Club v. Jackson
396 U.S. App. D.C. 297
| D.C. Cir. | 2011Background
- Sierra Club and Valley Watch challenge EPA Administrator Jackson under the Clean Air Act citizen-suit provision for failing to act to prevent three proposed major emitting facilities in Kentucky.
- The facilities—Smith (J.K. Smith Generating Station), NewGas (Kentucky New-Gas Synthetic Natural Gas Plant), and Cash Creek (Cash Creek Generating Station)—were slated for construction in attainment areas and required PSD permits under § 7475(a).
- Kentucky granted PSD permits for all three before September 15, 2010, but Kentucky's SIP had remaining PSD deficiencies (NOx precursor regulation and 1997 ozone NAAQS incorporation) not addressed until after that date.
- EPA had previously approved Kentucky's PSD program (1989) and then updates in 1997 and 2005, but Kentucky did not incorporate the 1997 ozone NAAQS or NOx precursor regulations into the SIP until 2010.
- Because the SIP was noncompliant at issuance, the Smith, NewGas, and Cash Creek permits did not satisfy § 7475(a) at the time of issuance.
- The district court dismissed the case for lack of jurisdiction, ruling the Administrator's decision not to act under § 7477 was discretionary; Sierra Club appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the EPA's failure to act under § 7477 reviewable? | Sierra Club contends § 7477 imposes a mandatory duty to act and is subject to review. | EPA argues § 7477 is discretionary and not subject to APA review. | Not reviewable; discretionary action under § 7477. |
| Does mootness bar review of the Smith, NewGas, or Cash Creek challenges? | Sierra Club argues controversy remains due to SIP defects and public-notice requirements. | EPA contends issues are moot because conditions changed and PSD permits may be valid under updated SIP. | Smith moot; NewGas and Cash Creek live controversy saved by SIP defects and notice issues. |
| What is the proper basis for jurisdiction, Rule 12(b)(1) or Rule 12(b)(6)? | The claim challenges agency action, so review under APA standards. | The action challenges discretionary agency action outside review. | Rule 12(b)(6) governs; dismissals can be affirmed under Rule 12(b)(6) for failure to state a claim. |
| Does § 7477 render the EPA's discretionary decision to refrain from acting subject to APA review despite Chaney and Overton Park? | § 7477's mandatory language (shall) shows Congress intended judicial review. | The statute provides broad discretion without meaningful standards, leaving action to agency judgment. | § 7477 action is committed to agency discretion by law; not subject to APA review. |
Key Cases Cited
- Honig v. Doe, 484 U.S. 305 (1988) (standing and mootness principles governing jurisdiction)
- Church of Scientology v. United States, 506 U.S. 9 (1992) (mootness and justiciability limitations)
- Mills v. Green, 159 U.S. 651 (1895) (mootness; finality doctrine)
- Chaney v. Secretary of Health and Human Services, 470 U.S. 821 (1985) (agency discretion; limits on review of enforcement decisions)
- Twentymile Coal Co. v. Sec'y of Labor, 456 F.3d 151 (D.C. Cir. 2006) (presumption of nonreviewability for enforcement decisions; when standards exist, review possible)
- Association of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007) (agency decisions excluded from review under § 701(a)(2))
- Oryszak v. Sullivan, 576 F.3d 522 (D.C. Cir. 2009) (APA not applicable to agency action committed to discretion; jurisdiction for review exists but under Rule 12(b)(6))
- Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006) (finality requirement not jurisdictional; APA jurisdictional analysis guidance)
- Oryszak v. Sullivan, 576 F.3d 522 (D.C. Cir. 2009) (enforces Rule 12(b)(6) review for discretionary agency action)
- St. Francis Xavier Parochial Sch., 117 F.3d 621 (D.C. Cir. 1997) (affirmative dismissal standards under Rule 12(b)(6))