SIERRA CLUB; Michael Sinclair; Theresa Cole; Josephine Cole, Plaintiffs-Appellees, v. Christopher KORLESKI, Director, Ohio Environmental Protection Agency, Defendant-Appellant.
No. 10-3269
United States Court of Appeals, Sixth Circuit
May 25, 2012
683 F.3d 342
Argued: July 20, 2011.
ARGUED: Alexandra T. Schimmer, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. D. David Altman, D. David Altman Co., L.P.A., Cincinnati, Ohio, for Appellees. Peter J. McVeigh, United States Department of Justice, Washington, D.C., for Amici Curiae. ON BRIEF: Alexandra T. Schimmer, David M. Lieberman, Gregg H. Bachmann, Thaddeus H. Driscoll, Samuel C. Peterson, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. D. David Altman, Justin D. Newman, D. David Altman Co., L.P.A., Cincinnati, Ohio, for Appellees. Peter J. McVeigh, United States Department of Justice, Washington, D.C., David E. Northrop, Robert L. Brubaker, Porter, Wright, Morris & Arthur LLP, Columbus, Ohio, for Amici Curiae.
KETHLEDGE, J., delivered the opinion of the court, in which SILER, J., joined. COLE, J. (pp. 353-55), delivered a separate dissenting opinion.
OPINION
KETHLEDGE, Circuit Judge.
The State of Ohio, pursuant to legislation passed by its General Assembly and signed by its Governor, has chosen no longer to administer a particular federal regulation promulgated under the Clean Air Act. The plaintiffs brought this lawsuit to compel the State to administer the federal regulation. As authority for the suit, the plaintiffs invoke the Clean Air Act‘s citizen-suit provision. The State contends that the suit is not authorized by that provision. The district court agreed with the State‘s contention, but felt bound to rule otherwise in light of a case decided in 1980 by this court. The district court therefore entered an injunction expressly ordering the State to administer the federal rule. We conclude, based upon intervening Supreme Court precedent and the text and structure of the Clean Air Act itself, that the Act‘s citizen-suit provision does not authorize this lawsuit. We therefore reverse the district court‘s judgment and remand with instructions to dismiss the complaint.
I.
A.
“The federal Clean Air Act is a model of cooperative federalism.” Ellis v. Gallatin Steel Co., 390 F.3d 461, 467 (6th Cir. 2004). The Act requires the EPA to establish National Ambient Air Quality Standards for certain types of air pollutants.
If a State fails to propose a SIP, or proposes one that the EPA determines will not meet the Air Quality Standards, then the EPA may impose its own federal implementation plan for the State.
The Act contemplates that each State will take primary responsibility for enforcing its SIP. If a State fails to enforce the SIP‘s requirements, the statute affords the EPA itself various means of enforcing them. First, the EPA may take action against violators directly: When “any person has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit,” the EPA‘s Administrator may “issue an order requiring such person to comply,” “issue an administrative penalty order,” or “bring a civil action” to require compliance.
To a limited extent, the Act also contemplates private enforcement of its provisions. Specifically, the Act includes a citizen-suit provision that allows “any person” to file suit against “any person ... who is alleged to have violated ... or to be in violation of ... an emission standard or limitation under this chapter[.]”
B.
The EPA first approved Ohio‘s SIP in 1972. See
The Director enforced the BAT requirement for several decades. Then, in 2006, the Ohio General Assembly passed legislation that allows the Director to issue permits to smaller emission sources—those producing less than 10 tons per year of emissions (“small emitters“)—without first determining whether those sources will employ BAT. Ohio‘s Governor signed this legislation. The Ohio EPA amended the Ohio Administrative Code to reflect the exemptions. These amendments took effect on December 1, 2006. Since then, the Director has issued permits to small emitters without determining whether those sources will use BAT. The result is that Ohio no longer administers the BAT requirement against small emitters.
In June 2008, Ohio sought approval to amend its SIP to eliminate the BAT requirement with respect to small emitters. The federal EPA rejected the proposed amendment on procedural grounds, and thus the BAT requirement remains part of the SIP today. But the federal EPA has chosen not to enforce the requirement itself, even though the Act empowers it to do so. See
C.
In September 2008, the Sierra Club, joined by three Ohio residents, filed a citizen suit against the Director of Ohio‘s EPA. The complaint alleged, among other things, that the Director‘s refusal to make a BAT determination before issuing permits to small emitters constituted a “violation of [ ] an emission standard or limita
The Sierra Club moved for reconsideration, citing this court‘s decision in United States v. Ohio Department of Highway Safety, 635 F.2d 1195, 1204 (6th Cir. 1980), which involved a different but related provision of the Clean Air Act. The district court adhered to its view that the most natural reading of
This appeal followed.
II.
The issue presented by this appeal is whether the Clean Air Act‘s citizen-suit provision,
(a) Authority to bring a civil action; jurisdiction
Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation[.]
It is undisputed that the State of Ohio, like the federal government, is a “person” potentially subject to suit under this provision. What is disputed is whether the State is subject to the particular kind of suit the plaintiffs filed here.
A.
The plaintiffs’ theory is that Ohio‘s failure to administer the BAT requirement with respect to small emitters is itself a “violation of ... an emission standard or limitation” as those terms are used in
The plaintiffs and their amicus, the federal EPA, advance a technical meaning here: In their view,
The Seventh Circuit recently read
For there is a second term whose meaning the plaintiffs must establish in order to bring this lawsuit—namely, “violation” as used in
The State‘s argument is based in part upon the Supreme Court‘s decision in Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). There, the Court held that “the term ‘violation[,]’ as used in the citizen-suit provision in the Endangered Species Act,
As an initial matter, we “must be careful not to apply rules under one statute to a different statute without careful and critical examination.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 2349, 174 L.Ed.2d 119 (2009) (quoting Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008)). Our task “is not to fashion a sort of judicial string theory, under which we develop universal principles that harmonize different statutes with different language.” Hadden v. United States, 661 F.3d 298, 303 (6th Cir. 2011). But “if two statutes use the same words in related contexts, the caselaw for one statute might be relevant in construing the other.” Id. So we will give the two statutes a careful and critical examination here.
The text of the ESA‘s citizen-suit provision is virtually identical to that of
[A]ny person may commence a civil action ... against any person ... who is
alleged to have violated ... or to be in violation of ... an emission standard or limitation under this chapter[.]
Similarly, the ESA‘s citizen-suit provision provides in relevant part:
[A]ny person may commence a civil suit ... to enjoin any person ... who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.
The enabling language of the two provisions is the same: each provision authorizes “any person” to sue “any person” who is alleged “to be in violation of” certain provisions of each Act. (The only difference between the two provisions, so far as this language is concerned, is that the ESA‘s provision is more broadly permissive of citizen suits, since it permits suits based on a “violation” of any provision of that Act, whereas the Clean Air Act provision here permits suits based on a “violation” only of an emission standard or limitation.)
In Bennett, the Supreme Court held that this language did not permit a citizen suit against a federal agency for its failure to perform a regulatory duty. Bennett concerned a determination by the United States Fish and Wildlife Service that the operation of the Klamath Irrigation Project—“a series of lakes, rivers, dams, and irrigation canals in northern California and southern Oregon,” 520 U.S. at 158, 117 S.Ct. 1154—“was likely to jeopardize the continued existence of the Lost River and shortnose suckers[,]” both of which are endangered species. Id. at 159, 117 S.Ct. 1154. The Service also found that the maintenance of certain minimum water levels within the project would “avoid jeopardy” to the suckers. Id. Certain private parties affected by those water levels thereafter sued the Service‘s Director and the Secretary of the Interior Department (of which the Service is a part) under the ESA‘s citizen-suit provision,
The Supreme Court agreed: “Viewed in the context of the entire statute, § 1540(g)(1)(A)‘s reference to any ‘violation’ of the ESA cannot be interpreted to include the Secretary‘s maladministration of the ESA.” 520 U.S. at 174, 117 S.Ct. 1154. The Court cited three principal reasons for its decision. First, the Court said that the plaintiffs’ interpretation of § 1540(g)(1)(A) was “simply incompatible with the existence of § 1540(g)(1)(C)[.]” 520 U.S. at 173, 117 S.Ct. 1154. The latter subsection provides in relevant part:
(g) Citizen suits
(1) ... any person may commence a civil suit on his own behalf— ...
(C) against the Secretary where there is an alleged failure of the Secretary to perform any act or duty under section 1533 of this title which is not discretionary with the Secretary.
The Court observed that, by its plain terms, § 1540(g)(1)(C) “authorizes suit against the Secretary, but only to compel him to perform a nondiscretionary duty under § 1533.” 520 U.S. at 173, 117 S.Ct. 1154. And the Court reasoned that § 1540(g)(1)(C) “would be superfluous—and worse still, its careful limitation to § 1533 would be nullified—if § 1540(g)(1)(A) permitted suit against the Secretary for any ‘violation’ of the ESA.” Id. (emphasis in original). Thus, if the term “violation” as used in § 1540(g)(1)(A) were construed to allow suits against regulators qua regulators, the express limitations upon that kind of suit in § 1540(g)(1)(C) would be meaningless.
The parties dispute the extent to which the same or similar reasoning applies here. A foundational point is undisputed: The Clean Air Act contains a provision almost identical to
The State argues that
But the Court‘s second reason does. In adopting the government‘s argument that the term “violation,” as used in the ESA‘s citizen-suit provision, reaches only “regulated parties” rather than regulators, the Court reasoned: “Moreover, the ESA uses the term ‘violation’ elsewhere in contexts in which it is most unlikely to refer to failure by the Secretary or other federal officers and employees to perform their duties in administering the ESA.” Bennett, 520 U.S. at 173, 117 S.Ct. 1154. One of those “contexts” was the ESA‘s provision for civil penalties: “Section 1540(a), for example, authorizes the Secretary to impose substantial civil penalties on ‘[a]ny person who knowingly violates ... any provision of [the ESA],’ and entrusts the Secretary with the power to ‘remi[t] or mitigat[e]’ any such penalty.” 520 U.S. at 173, 117 S.Ct. 1154. Another context was criminal: “Nor do we think it likely that the statute meant to subject the Secretary and his officers and employees to criminal
The same uses of “violation,” in the same contexts, are present here.
The United States’ response, so far as the civil penalties are concerned, is that
The implications of the plaintiffs’ interpretation of the term “violation” as used in the CAA render the interpretation implausible. That is all the more true given the calibrated instruments that the CAA gives the federal EPA to coax states into compliance with a SIP, see supra at 343-44 instruments compared to which the civil and criminal penalties described above would be a battleaxe. In Bennett, speaking of the civil penalties that would flow from the plaintiffs’ interpretation of “violation” there, the Supreme Court said: “We know of no precedent for applying such a provision against those who administer (as opposed to those who are regulated by) a substantive law.” 520 U.S. at 173-74, 117 S.Ct. 1154. We know of no such precedent either; and so far as we are concerned, this case is not going to be the first.
There remains the Supreme Court‘s third reason for rejecting the plaintiffs’ interpretation of “violation” in Bennett, which was that it “would effect a wholesale abrogation of the [Administrative Procedure Act]‘s ‘final agency action’ requirement.” Id. at 174, 117 S.Ct. 1154. Specifically, under the plaintiffs’ interpretation there, “[a]ny procedural default, even one that has not yet resulted in a final disposition of the matter at issue, would form the basis of a lawsuit.” Id. That reason does not itself apply here, since a state agency‘s actions are not reviewable under the APA. But an analogous and equally important reason does apply.
In construing a statute, the words matter. The word that Congress chose to describe the precise regulatory failure at issue here is “deficiency,” not “violation.” All of the problems described above demonstrate that Congress had good reason not to call this sort of regulatory failure a “violation.” We could sift through the statutory text still more to show that Congress distinguished between state failures to regulate and “violations” of a SIP, sometimes within the same sentence. See, e.g.,
The text and structure of the CAA make plain that
B.
The plaintiffs argue nonetheless that our decision in United States v. Ohio Department of Highway Safety, 635 F.2d 1195 (6th Cir. 1980), requires us to construe
That specific holding is technically not binding on us here, since in this case we construe
The plaintiffs also refer us to cases from three other circuits, which putatively support the plaintiffs’ position here. But in one of those cases, the state (actually, municipal) defendants never argued that they were not subject to suit in their regulatory capacities under
C.
That the plaintiffs cannot sue the State in this case does not mean there are no remedies for the regulatory failure of which they complain. The Clean Air Act specifically contemplates the very situation we have here: a “State‘s failure to enforce [a] SIP or permit program[.]”
That is all to say that this lawsuit is profoundly contrary to the Act‘s remedial design. The Act‘s very nature is, and constitutionally must be, “cooperative.” Ellis v. Gallatin Steel Co., 390 F.3d 461, 467 (6th Cir. 2004). And thus, in disputes like this one, the Act envisions a cooperative resolution—a resolution, moreover, worked out between branches of the state and federal governments that are in a meaningful sense democratically accountable. What the Act does not envision is a compulsory resolution imposed by a democratically unaccountable federal judiciary. And yet that is the path the EPA advocates here. For whatever reason, the EPA has chosen not to employ any of the means that the Act places at its disposal to resolve its dispute with the State of Ohio. What the EPA has chosen, instead, is to file an amicus brief in support of this lawsuit.
Which leads to another point.
The judgment of the district court is reversed, and the case remanded with instructions to dismiss the complaint.
COLE, Circuit Judge, dissenting.
Adopting the majority‘s theory yields a particularly peculiar result. It would permit panels of this Court to reexamine and adopt arguments that previous panels had rejected, solely by questioning the logic of the previous panel‘s decision. Because so doing jeopardizes the stability of our jurisprudence, for both future panels and future litigants, I respectfully dissent.
The majority‘s thoughtful, comprehensive opinion compellingly questions the wisdom of permitting citizen groups to sue state regulators who fail to enforce emissions regulations. Permitting such private enforcement actions, given the comprehensiveness of the Clean Air Act‘s regulatory scheme, would, as the majority makes clear, yield uncertainty and confusion. If the federal administrator deems a state enforcement agency not to be in compliance with its state implementation plan, the state has eighteen months to bring itself into compliance, lest it risk losing federal highway funds.
My disagreement stems from the majority‘s approaches to Highway Safety and to the deference that we owe to prior opinions. “A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section to produce a harmonious whole.” 2A Sutherland Statutory Construction § 46:5 (7th ed.) (emphasis added). What the majority opinion seeks to do, then, is to have the word “violation” mean one thing under
The majority argues that because Highway Safety discussed a different part of the CAA, that opinion‘s definition of “violation” is “technically not binding on us here.” However, the majority fails to point to any legislative history that rebuts the presumption that words in the same statute have the same meaning. Instead, the majority seeks to distance itself from Highway Safety‘s holding by substituting its own interpretation of the CAA‘s legisla
“Sixth Circuit Rule 206(c) is unequivocal: Reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court en banc consideration [or intervening Supreme Court authority] is required to overrule a published opinion of the court.” United States v. Lucido, 612 F.3d 871, 878 (6th Cir. 2010) (Batchelder, C.J., dissenting) (internal quotation marks omitted). Which leads us to the real problem: The majority attempts to elude Highway Safety‘s reach by insisting that developments in federalism theory require abandonment of that case‘s holding. I am hard-pressed to believe that the penumbrae of cases like New York and Printz play such an abrogative role. Rule 206(c), a codification of the law-of-the-circuit doctrine, requires more than a belief that the Supreme Court, given current trends in jurisprudence, would overturn Highway Safety. There must be some precedential effect of the intervening authority that “requires” us to ignore our prior mandates. See Caswell v. City of Detroit Housing Com‘n, 418 F.3d 615, 618 n. 1 (6th Cir. 2005); United States v. Moody, 206 F.3d 609, 615 (6th Cir. 2000) (“[T]he earlier determination is binding authority unless a decision of the United States Supreme Court mandates modification....“) (emphasis added); cf. Craft v. United States, 233 F.3d 358, 378 (6th Cir. 2000) (Gilman, J., concurring) (“The purpose of the intervening-controlling-authority exception is to allow a subsequent panel of this court to respond to a new precedent, unavailable to the prior panel, not just a new decision.“) rev‘d on other grounds, 535 U.S. 274 (2002). We are not so required here. See, e.g., Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (restricting the overruling of prior precedent to when intervening Supreme Court law is “clearly irreconcilable“).
Lastly, after arguing that Highway Safety is inapplicable because it analyzes a different provision of the same statute, the majority reverses course and contends that Bennett, a case analyzing a wholly different statutory scheme, controls the outcome here. Such a tack is fraught with irony. Why is it that a Supreme Court case about the Endangered Species Act should inform our thinking on the CAA, but a prior binding panel opinion discussing the CAA does not? Mere similarity in language does not create binding precedent; it creates an inference that the interpretation of a word in one statute may apply to the interpretation of that word in another statute. But such inferences alone cannot trump this Court‘s prior interpretation of that word in that statute.
The majority opinion is a fine example of nuanced and thoughtful writing, and an opinion which I likely would join, but for Highway Safety. Even if all of us doubt that case‘s enduring vitality, as an individual panel, we are simply without power to abandon its effect. “[T]he law-of-the-circuit doctrine is derived from legislation and from the structure of the federal courts of appeals. Courts of appeals sit in panels, or divisions, of not more than three
RAYMOND M. KETHLEDGE
UNITED STATES CIRCUIT JUDGE