HUMANE SOCIETY OF THE UNITED STATES et al v. MCCARTHY et al
MEMORANDUM AND OPINION: Re Defendants' Motion to Dismiss 10 . Signed by Judge Tanya S. Chutkan on 09/19/2016. (lctsc3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
THE HUMANE SOCIETY OF THE
UNITED STATES, et al.,
GINA McCARTHY, in her official
Capacity as Administrator, United States )
Environmental Protection Agency, and )
UNITED STATES ENVIRONMENTAL )
Civil Action No. 15-cv-00141 (TSC)
Plaintiffs the Humane Society of the United States, Association of Irritated Residents,
Environmental Integrity Project, Friends of the Earth, and Sierra Club have brought this action
against the Environmental Protection Agency (“EPA”) for declaratory and injunctive relief
pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. Plaintiffs seek to
compel the EPA to provide a response to their 2009 petition for rulemaking, which requests that
the EPA regulate Concentrated Animal Feeding Operations (“CAFOs”) as a source of air
pollution under the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq. Plaintiffs allege that the
EPA’s failure to respond to their petition constitutes a violation of the APA, 5 U.S.C. § 555.
Defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6), arguing that the court lacks subject matter jurisdiction because Plaintiffs failed to
provide notice, as required under Section 304(a) of the Clean Air Act, before filing this lawsuit.
For the reasons set forth below, the court will GRANT Defendants’ motion to dismiss.1
The CAA requires the EPA “from time to time” to publish and revise a list of categories
of “stationary sources” it will regulate. 42 U.S.C. § 7411(b)(1)(A). “The term ‘stationary
source’ means any building, structure, facility, or installation which emits or may emit any air
pollutant.” 42 U.S.C. § 7411(a)(3); see 42 U.S.C. § 7602(z).
CAFOs are industrial animal production facilities used to house and raise livestock until
they are sent to slaughter. (Compl. ¶ 2). Plaintiffs want the EPA to list CAFOs as a “stationary
source” under the CAA, and to promulgate certain standards and regulations relating to them.
(Compl. ¶ 6). To this end, in 2009 Plaintiffs filed a petition for rulemaking with the EPA
pursuant to the APA, which provides that agencies must “give an interested person the right to
petition for the issuance, amendment or repeal of a rule.” 5 U.S.C. § 553(e). The APA requires
that, when a rulemaking petition is filed, “[w]ith due regard for the convenience and necessity of
the parties or their representatives . . . each agency shall proceed to conclude a matter presented
to it.” 5 U.S.C. § 555(b). If, however, an agency fails to respond to the petitioner “within a
reasonable time,” the petitioner may attempt to compel a response by seeking judicial review. 5
U.S.C §§ 555(b), 555(e), 551(13); 5 U.S.C. §§ 702, 706.
After initial communications between the parties, on November 1, 2013, the EPA
informed Plaintiffs that it “did not intend to substantively address the Petition until after it
completed an administrative settlement agreement that it entered into with the CAFO industry.”
(Compl. ¶ 82). Plaintiffs filed this suit in January 2015, more than five years after filing the
Because the court dismisses Plaintiffs’ suit under Fed. R. Civ. P. 12(b)(1), the court does not reach Defendants’
It is undisputed that the EPA’s obligations with respect to revising CAFO standards stem
from the CAA, that the duty to rule on Plaintiffs’ petition derives from the APA, and that the
agency has not responded to the petition for rulemaking. However, the parties disagree as to
whether the court has jurisdiction to hear this case under the APA or the CAA. If the court’s
jurisdiction arises under the APA, then this action may go forward. If, however, jurisdiction
arises under the CAA, then this action cannot be maintained because under the CAA’s Citizen
Suit Provision, 42 U.S.C. § 7604(a)(2), EPA’s waiver of sovereign immunity is conditioned on
the requirement that prospective plaintiffs provide EPA with 180 days’ notice before filing suit,
and Plaintiffs did not provide such notice. 2
Federal courts are courts of limited jurisdiction and, as such, a district court “may not
exercise jurisdiction absent a statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545
U.S. 546, 552 (2005); see also Fed. R. Civ. P. 12 (“If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.”). “Limits on subject-matter
jurisdiction ‘keep the federal courts within the bounds the Constitution and Congress have
prescribed,’ and those limits ‘must be policed by the courts on their own initiative.’” Watts v.
SEC, 482 F.3d 501, 505 (D.C. Cir. 2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 583 (1999)). Such limits are especially important in the agency review context, where
“Congress is free to choose the court in which judicial review of agency decisions may occur.”
Am. Petroleum Inst. v. SEC, 714 F.3d 1329, 1332 (D.C. Cir. 2013) (internal quotation marks
Plaintiffs filed a similar action in this District in 2015 challenging EPA’s delay in responding to a 2011 petition
concerning ammonia gas pollution. That case was dismissed on the same grounds as this case. See Envtl. Integrity
Project v. United States Envtl. Prot. Agency, No. 15-0139 (ABJ), --- F. Supp. 3d ---, 2015 WL 7737307 (D.D.C.
Dec. 1, 2015).
omitted). The law presumes that “a cause lies outside [the court’s] limited jurisdiction” unless
the party asserting jurisdiction establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). Thus, the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);
Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002).
In evaluating a motion to dismiss under Rule 12(b)(1), the court must “assume the truth
of all material factual allegations in the complaint and ‘construe the complaint liberally, granting
plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat'l Ins.
Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970,
972 (D.C. Cir. 2005)). Nevertheless, “‘the court need not accept factual inferences drawn by
plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the
Court accept plaintiff's legal conclusions.’” Disner v. United States, 888 F. Supp. 2d 83, 87
(D.D.C. 2012) (quoting Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)).
Further, under Rule 12(b)(1), the court “is not limited to the allegations of the complaint,” Hohri
v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64
(1987), and “a court may consider such materials outside the pleadings as it deems appropriate to
resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of
Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat'l Acad. of Scis.,
974 F.2d 192, 197 (D.C. Cir. 1992)).
The question of whether this court has jurisdiction in this matter turns on whether the
government has waived immunity to suit, because “[s]overeign immunity is jurisdictional in
nature.” FDIC v. Meyer, 510 U.S. 471, 475, (1994); see also United States v. Mitchell, 463 U.S.
206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and
that the existence of consent is a prerequisite for jurisdiction.”).
As a general matter, a suit challenging an agency action may be brought in federal court
under the APA, which “provides a cause of action for the plaintiff and a waiver of sovereign
immunity by the government.” Envt’l. Integrity Project v. United States Envt’l. Prot. Agency,
No. 15-0139 (ABJ), 2015 WL 7737307, at *3 (D.D.C. Dec. 1, 2015) (internal citation omitted).
However, this waiver of immunity is limited—it applies only to an “[a]gency action made
reviewable by statute and final agency action for which there is no other adequate remedy in a
court.” 5 U.S.C. § 704; see also Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.
Patchak, 132 S. Ct. 2199, 2204 (2012) (“[T]he APA’s waiver of immunity comes with an
important carve-out: The waiver does not apply ‘if any other statute that grants consent to suit
expressly or impliedly forbids the relief which is sought’ by the plaintiff.”).
Defendants argue that the CAA provides an adequate remedy because its Citizen Suit
Provision, 42 U.S.C. § 7604, gives individuals the right to sue the Administrator of the EPA “to
compel . . . agency action unreasonably delayed,” which is the gravamen of Plaintiffs’ case.
(Def’s Mot. to Dismiss at 12). However, the Citizen Suit provision requires that a plaintiff
provide the EPA with notice 180 days before commencing an unreasonable delay suit. (Id.); see
also 42 U.S.C. § 7604(a). Defendants argue that because Plaintiffs did not provide the mandated
notice, the United States never waived immunity to suit, and therefore the court lacks
Plaintiffs assert that they do not have an adequate remedy under the CAA. They contend
that the EPA’s duty to revise the list of stationary sources under Section 111 of the CAA is
discretionary, and the Citizen Suit Provision only grants district courts subject matter jurisdiction
to hear suits where there is an alleged failure to perform a nondiscretionary duty or act.
Prior to 1990, the Citizen Suit Provision stated, in pertinent part:
(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section, any person may
commence a civil action on his own behalf –
(2) against the Administrator where there is alleged a failure of the
Administrator to perform any act or duty under this chapter which
is not discretionary with the Administrator[.]
The district courts shall have jurisdiction, without regard to the amount in
controversy or the citizenship of the parties . . . to order the Administrator
to perform such act or duty, as the case may be.
42 U.S.C. § 7604(a) (1988).
In 1987, the D.C. Circuit held that the Citizen Suit Provision gave it exclusive
jurisdiction over suits involving discretionary agency actions, while district courts had
jurisdiction over actions alleging violations of nondiscretionary duties imposed by the Clean Air
Act. Sierra Club v. Thomas, 828 F.2d 783, 791-92 (D.C. Cir. 1987). The Thomas Court defined
nondiscretionary functions as those where it was “categorically mandat[ed] that all specified
action be taken by a date-certain deadline.” Id. at 791(emphasis in original) (internal quotation
marks omitted). Applying this definition, the Court found that the district court could not
properly exercise jurisdiction over the plaintiff’s claim that the EPA had unreasonably delayed
concluding a rulemaking concerning strip mine emissions, because the Clean Air Act did not
require the EPA to conclude the rulemaking by a specific deadline. Id. at 791-792. Thus, if the
current dispute had taken place pre-1990, this court would lack subject matter jurisdiction
because CAA Section 111 gives no specific deadline for when the EPA must conclude
rulemakings regarding categories of stationary sources. See 42 U.S.C. § 7411(1)(A).
In 1990, three years after Thomas was decided, Congress added the following language to
the Citizen Suit Provision:
The district courts of the United States shall have jurisdiction to compel (consistent with
paragraph (2) of this subsection) agency action unreasonably delayed, except that an
action to compel agency action referred to in section 7607(b) of this title which is
unreasonably delayed may only be filed in a United States District Court within the
circuit in which such action would be reviewable under section 7607(b) of this title. In
any such action for unreasonable delay, notice to the entities referred to in subsection
(b)(1)(A) of this section shall be provided 180 days before commencing such action.
42 U.S.C. § 7604(a); see also Clean Air Act, Amendments, Pub. L. No. 101-549, § 707(f), 104
Stat. 2399 (1990).
The D.C. Circuit briefly discussed the implications of the 1990 Amendments in a
footnote in Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544 (D.C. Cir. 2015):
Congress has partly abrogated Sierra Club v. Thomas, but its analytical framework
for determining whether EPA’s delay was unreasonable remains applicable to
whether Petitioners may be excused for their failure to exhaust their administrative
remedies. Thomas addressed the circumstances in which courts may compel EPA
to take action under the Clean Air Act, and, in that context, held that this court had
exclusive jurisdiction over claims to compel agency action “unreasonably delayed.”
Thomas, 828 F.2d at 792–96. Congress in the 1990 Amendments to the Clean
Air Act abrogated Thomas’s jurisdictional holding and shifted to the district
court the power to compel EPA to act.
Id. at 553 n.6 (emphasis added). The footnote indicates that the Circuit interpreted the 1990
Amendments as giving district courts jurisdiction over unreasonable delay claims. Despite this,
Plaintiffs still argue that the 1990 Amendments do not give the court jurisdiction for their
unreasonable delay claim, based on the restrictive language in Paragraph (2) of the Citizen Suit
Provision—that the action must be brought “under this chapter,” and “is not discretionary.” 42
U.S.C. § 7604(a). Therefore, the court must examine the restrictions to see if they impact its
The parties agree that the Agency’s duty to respond in a timely manner to a petition for
rulemaking comes from the APA, 5 U.S.C. § 555(b), not the CAA. So, the Citizen Suit
Provision’s grant of a right to bring an unreasonable delay claim “under this chapter” appears to
be internally contradictory, since unreasonable delay claims do not arise under the CAA.
However, the cannons of statutory interpretation instruct courts to avoid construing the text of a
statute to be contradictory; “our task is to fit, if possible, all parts into a harmonious whole.”
Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350, 1356, (2012) (citing FTC v. Mandel Brothers,
Inc., 359 U.S. 385, 389 (1959)); see also, Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a
way that renders them compatible, not contradictory . . . [T]here can be no justification for
needlessly rendering provisions in conflict if they can be interpreted harmoniously”).
Further, Thomas found that district courts had jurisdiction over claims to compel the EPA
to perform nondiscretionary duties arising under the Clean Air Act. Thomas, 828 F.2d at 794.
But following Thomas, Congress amended the language of the Citizen Suit Provision to give
district courts jurisdiction over “action[s] for unreasonable delay.” Therefore, in order for the
new language in the 1990 amendments to make any sense, the scope of § 304 must have changed
to give district courts jurisdiction over a category of unreasonable delay suits that were not
already captured under the old version of the statute. See Envtl. Integrity Project, 2015 WL
7737307, at *7-8 (explaining that section 304(a)(2) already gave district courts jurisdiction to
compel the EPA to perform non-discretionary duties required by the CAA, including to compel
such non-discretionary action in the face of unreasonable delay, and therefore the amended
language must expand the district courts’ unreasonable-delay jurisdiction to non-discretionary
duties required under the EPA as well). If the court did not find the scope changed, it would be
rendering the added words “district courts of the United States shall have jurisdiction to compel
(consistent with paragraph (2) of this subsection) agency action unreasonably delayed”
superfluous, which it cannot do. Corley v. United States, 556 U.S. 303, 314 (2009); see also
United States v. Menasche, 348 U.S. 528, 538-539 (1955) (“It is [the court’s] duty to give effect,
if possible, to every clause and word of a statute . . . .”). This interpretation is consistent with the
D.C. Circuit’s footnote in Mexichem that in the 1990 Amendments to the Clean Air Act,
Congress nullified Thomas’s ruling and gave district courts “the power to compel EPA to act.”
Mexichem, 787 F.3d at 553 n.6 (citations omitted).
As to the second restriction, that the action “is not discretionary,” multiple courts in this
district have determined that a claim for an unreasonable delay requires that the action sought to
be compelled is “not discretionary,” since “a delay cannot be unreasonable with respect to action
that is not required.” Ctr. for Biological Diversity v. E.P.A., 794 F. Supp. 2d 151, 156 (D.D.C.
2011) (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 n. 1 (2004)) (internal
quotation marks omitted). EPA does not have “discretion” to respond to Plaintiffs’ petition, it
must respond “within a reasonable time” under 5 U.S.C. § 555(b), therefore the action “is not
Moreover, if the court interpreted the Citizen Suit Provision to deprive district courts of
jurisdiction over unreasonable delay claims such as Plaintiffs’, this would frustrate the purpose
of the Citizen Suit Provision. The Provision’s notice requirement “is intended to preserve [the]
agency's authority to enforce the regulations within its bailiwick (by preventing citizen suits from
supplanting agency action) and to allow the agency an opportunity to bring itself into complete
compliance with the Act and thus . . . render unnecessary a citizen suit.” Envtl. Integrity Project,
2015 WL 7737307, at *7 n. 6 (internal quotations omitted). If the APA provided a separate
avenue to pursue unreasonable delay claims, then Plaintiffs could simply bring suit under the
APA instead of the CAA, without providing notice to the agency, thus nullifying the purpose and
effect of the notice requirement.
While the court’s analysis leads it to conclude that it has jurisdiction under the CAA over
disputes such as Plaintiffs’—where the notice requirement is complied with—the statutory
language is far from clear. “If the statutory language is plain, we must enforce it according to its
terms. But oftentimes the ‘meaning—or ambiguity—of certain words or phrases may only
become evident when placed in context.’” King v. Burwell, 135 S. Ct. 2480, 2489 (2015)
(citations omitted). “Where the words are ambiguous, the judiciary may properly use the
legislative history to reach a conclusion.” United States v. Pub. Utilities Comm'n of Cal., 345
U.S. 295, 315 (1953). While “the bar is high,” a court “may examine the statute’s legislative
history in order to shed new light on congressional intent, notwithstanding statutory language
that appears superficially clear.” Consumer Elecs. Ass'n v. FCC, 347 F.3d 291, 298 (D.C. Cir.
2003) (internal quotation marks and citations omitted).
The legislative history of the Provision clarifies that the court would have CAA
jurisdiction to hear Plaintiffs’ suit, if proper notice was given. First, the Senate Committee on
Environment and Public Works Report on the 1990 Amendments states in the “Citizen Suits and
Petition (Section 609) Discussion”:
The amendments will allow a citizen suit to be brought in Federal district court
against the Administrator where the plaintiff alleges that EPA has failed to act, and
further alleges that the failure violates one or more of the standards set out in section
307(d)(9) of the Act, or that the failure constitutes unreasonable delay. Under this
amendment, the citizen suit provision of the Act will encompass the full range
of inaction covered by the Administrative Procedure Act (AP). Under this
amendment, the district courts would be granted authority to compel actions
by the Administrator that have been unreasonably delayed, as well as to design
remedies to address EPA failures to act that are arbitrary, capricious, and abuse of
discretion or not in accordance with law . . .
The amendment also gives the district courts jurisdiction under section
304(a)(2) to compel agency action unreasonably delayed. This jurisdiction
would apply in circumstances where EPA has already commenced a proceeding
directed at the final action sought by the plaintiff, but had failed to complete it
within a reasonable time.
S. Rep. No. 101-228 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3757-58. The D.C. Circuit
cited this section of the Senate Report in its footnote in Mexichem, in which it indicated that the
Citizen Suit Provision gave district courts jurisdiction over claims of agency inaction under the
APA—which include unreasonable delay suits. Mexichem, 787 F.3d at 553 n.6.
Consistent with the legislative history cited by the Circuit, Congressman Michael Oxley
stated for the Congressional record:
The bill changes the judicial review scheme under the act by giving the district
courts jurisdiction to compel Agency action that has been unreasonably
This provision has a broad effect because Agency action referred to in section
307(b) includes any final action taken by the Administrator under the act. Thus,
for example, final Agency action in the form of a response to a petition for
rulemaking would fall within this category. . .
This unreasonable delay jurisdiction, like the unreasonable delay jurisdiction
that the circuit courts of appeals now have, authorizes the appropriate courts
to enforce the provision of the Administrative Procedure Act that requires an
agency, “within a reasonable time,” to “proceed to conclude a matter
presented to it.” Thus, unreasonable delay jurisdiction is designed to allow the
courts to compel the Agency to respond to a petition for rulemaking or other request
for Agency action if the Agency has made no response within a reasonable time
after the request has been presented to it.
136 Cong. Rec. E3670-01 (Nov. 2, 1990) 1990 WL 206958 (emphasis added).
The legislative history of the 1990 amendments to the CAA therefore make clear that
Congress intended that district courts be given jurisdiction over unreasonable delay claims
alleging a failure to respond to a petition for rulemaking under the CAA, and “in every case we
must respect the role of the Legislature, and take care not to undo what it has done.” Burwell,
135 S. Ct. at 2496.
Based on the court’s analysis of the text of the Citizen Suit Provision, applicable
precedent in this Circuit, and the legislative history of the 1990 Amendments to the CAA, the
court finds that it has, in general, subject matter jurisdiction over this type of dispute. Since the
Provision also provides an adequate remedy for Plaintiffs’ alleged harms—they may bring an
unreasonable delay suit—the appropriate waiver of sovereign immunity also comes from the
CAA. But that waiver of immunity requires that a prospective plaintiff give the EPA notice 180
days before filing suit, and, since Plaintiffs concede that they did not do so here, they cannot
proceed. Because the Plaintiffs failed to effectuate waiver of sovereign immunity through
notice, the court lacks subject matter jurisdiction over this particular dispute. Accordingly, the
court will grant Defendants’ motion to dismiss.
For the foregoing reasons, Defendants’ motion to dismiss will be granted by separate
Date: September 19, 2016
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
Defendants raise a new argument in their reply brief—that if CAA Section 304’s waiver does not apply to
Plaintiffs’ APA claim, then under the D.C. Circuit’s decisions in Telecommunications Research & Action Ctr. v.
F.C.C., 750 F.2d 70 (D.C. Cir. 1984) and Thomas, this suit belongs in the Court of Appeals, not the District Court.
(Def.’s Reply at 8-9). Given the court’s finding, it need not address this argument.
Plaintiffs also argue that Defendants should be judicially estopped from arguing that the Citizen Suit provision
provides the court with jurisdiction over this matter because EPA allegedly advocated a contrary position in Zook v.
McCarthy, Civ. No. 14-5187, 2015 WL 331928 (D.C. Cir. filed Jan. 26, 2015). The court disagrees with Plaintiffs
and agrees with Judge Jackson’s finding in Envtl. Integrity Project v. United States Envtl. Prot. Agency, No. 150139 (ABJ), 2015 WL 7737307, at *4 n. 3 (D.D.C. Dec. 1, 2015) that the EPA did not advocate an opposite
position in Zook, since in both cases the government asked the court to apply the Citizen Suit Provision to
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