Zen-Noh Grain Corporation v. United States Environmental Protection Agency
Filing
35
ORDER AND REASONS granting 14 Motion to Dismiss for Lack of Jurisdiction.. Signed by Chief Judge Sarah S. Vance on 4/30/13. (jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ZEN-NOH GRAIN CORPORATION
CIVIL ACTION
VERSUS
NO: 12-2535
LISA JACKSON, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
SECTION: R(1)
ORDER AND REASONS
Defendant Lisa Jackson, administrator of the Environmental
Protection Agency (EPA), moves to dismiss Zen-Noh’s claim for
lack of subject matter jurisdiction. For the following reasons,
the EPA’s motion is GRANTED.
I.
FACTUAL BACKGROUND
The Louisiana Department of Environmental Quality ("LDEQ")
issued permits for the Nucor facility in Convent, Louisiana to
manufacture pig iron and direct reduced iron. On June 25, 2010,
Zen-Noh petitioned the EPA to object to the pig iron process
permit. LDEQ modified both permits for the Nucor facility before
the EPA objected, but Zen-Noh again petitioned the EPA to object
to the new permits. The EPA granted Zen-Noh’s petition on March
23, 2012, and objected to the permits. On June 21, 2012, the LDEQ
responded to the EPA’s objection, but has not yet revised its
permits. Nor has the EPA terminated, modified, or revoked the
permits.
Zen-Noh brought this suit against the EPA charging that it
has failed to perform nondiscretionary duties under 42 U.S.C. §
7661d(b)(2) and (c) by failing to terminate, modify, or revoke
Nucor's permits. Zen-Noh sues under section 304 of the CAA, which
allows any person to bring an action against the EPA
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,” and provides
“district courts [with] jurisdiction . . . to order the
Administrator to perform such act or duty.” 42 U.S.C. §7604(a).
The EPA contends that its obligations under 42 U.S.C. §
7661d(b)(2) and (c) are discretionary, and that this Court lacks
subject matter jurisdiction over this case.
II.
STANDARD
The Court must first determine whether the EPA’s motion to
dismiss is governed by Rule 12(b)(1) or Rule 12(b)(6). Federal
Rule of Civil Procedure 12(b)(1) permits dismissal for lack of
jurisdiction over the subject matter of the claim.
In ruling on
a Rule 12(b)(1) motion to dismiss, the court may rely on (1) the
complaint alone, presuming the allegations to be true, (2) the
complaint supplemented by undisputed facts, or (3) the complaint
supplemented by undisputed facts and by the court’s resolution of
disputed facts. Den Norske Stats Oljeselskap As v. HeereMac Vof,
241 F.3d 420, 424 (5th Cir. 2001); see also Barrera-Montenegro v.
2
United States, 74 F.3d 657, 659 (5th Cir. 1996). The party
asserting jurisdiction bears the burden of establishing that the
district court possesses jurisdiction.
Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001). A court’s dismissal of a case
for lack of subject matter jurisdiction is not a decision on the
merits, and the dismissal does not ordinarily prevent the
plaintiff from pursuing the claim in another forum. See Hitt v.
City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
When a defendant attacks the complaint because it fails to
state a legally cognizable claim, Rule 12(b)(6) provides the
appropriate challenge. To survive a Rule 12(b)(6) motion to
dismiss, the plaintiff must plead enough facts “to state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1960 (2009)(quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible when the
plaintiff pleads facts that allow the court to “draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 1949. A court must accept all
well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired,
Inc., 565 F.3d 228, 239 (5th Cir. 2009); Baker v. Putnal, 75 F.3d
190, 196 (5th Cir. 1996). But the Court is not bound to accept as
true legal conclusions couched as factual allegations.
129 S.Ct. at 1949.
3
Iqbal,
RULE 12(b)(1) APPLIES
Suits against officials of the United States in their
official capacities, including the EPA Administrator, are barred
if there is no waiver of sovereign immunity. Hawaii v. Gordon,
373 U.S. 57, 58 (1963). Section 7604(a)(2) waives sovereign
immunity for claims “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.” 42 U.S.C. § 7604(a)(2). The EPA argues that
because § 7661d(b)(2) and (c) are discretionary duties, Zen-Noh’s
claim falls outside of the waiver of sovereign immunity outlined
in § 7604(a)(2). Accordingly, it argues that this Court lacks
subject matter jurisdiction. Zen-Noh argues that the EPA’s motion
goes to the merits of its claim because:
Where the defendant’s challenge to the court’s jurisdiction
is also a challenge to the existence of a federal cause of
action, the proper course of action for the district court .
. . is to find that jurisdiction exists and deal with the
objection as a direct attack on the merits of the
plaintiff’s case.
Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981); see also
Bell v. Hood, 327 U.S. 678, 682 (1945).
The Fifth Circuit held that "[a] district court has
jurisdiction under [section 7604(a)(2)] only if the plaintiff has
alleged a duty which is not discretionary.” See Seabrook v.
Costle, 659 F.2d 1371, 1372-75 (5th Cir. Unit A Oct. 1981); see
also CleanCOALition v. TXU Power, 536 F.3d 469, 473-74 (5th Cir.
4
2008) (affirming dismissal for lack of subject matter
jurisdiction for claims brought under sections 7604(a)(1) and
7604(a)(3) of the CAA). Additionally, its decisions interpreting
challenges to nondiscretionary duty claims under the APA analyze
them under Rule 12(b)(1). See Watson v. Chief Admin. Law Judge,
No. 10-40411, 2010 WL 4033991, at *2 (5th Cir. Oct. 15, 2010)(per
curiam) (“Under the APA, there is no judicial review of agency
action when that ‘agency action is committed to agency discretion
by law.’” (quoting 5 U.S.C. § 701(a)(2))). Accordingly, this
Court will analyze the EPA’s motion under Rule 12(b)(1).1
1
Other courts addressing similar suits have held that
whether a complaint alleges a nondiscretionary duty is
determinative of the district court’s subject matter
jurisdiction. See, e.g., Maier v. EPA, 114 F.3d 1032, 1039 (10th
Cir. 1997) (Clean Water Act citizen suit provision analyzed as a
matter of jurisdiction); Monongahela Power Co. v. Reilly, 980
F.2d 272, 276 (4th Cir. 1992) (“Jurisdiction of the district
court over this [section 7604(a)(2) suit] turns upon the question
of whether the Administrator’s challenged course of action
violates a nondiscretionary duty imposed [by the CAA].”);
Fairview Twp. v. EPA, 773 F.2d 517, 525 (3d Cir. 1985) (analyzing
the citizen suit provision of the Federal Water Pollution Control
Act and noting that “[d]istrict court jurisdiction over citizens’
suits depends on the existence of a duty alleged to be
nondiscretionary with the Administrator; if no nondiscretionary
duty exists, then neither can a citizens’ suit” (citing 33 U.S.C.
§ 1365(a))); Am. Rd. & Transp. Builders Ass’n v. EPA, 865 F.
Supp. 2d 72, 81 (D.D.C. 2012) (“To invoke this court’s
jurisdiction under the citizen suit provision, a plaintiff must
point to an act or duty under [the CAA] which is not
discretionary.”); WildEarth Guardians v. Jackson, No. 12035BB/WPL, 2012 WL 3292974, at *2-4 (D.N.M. Aug. 2, 2012) (noting
that section 7604(a)(2) “waives sovereign immunity for certain
specific claims against the EPA”); Sierra Club v. Leavitt, 355 F.
Supp. 2d 544, 547-48 (D.D.C. 2005) (analyzing a CAA claim under
section 7604(a)(2) as dispositive of jurisdiction). But see
WildEarth Guardians v. Salazar, 859 F. Supp. 2d 83, 96 n.11
5
III. THE CLEAN AIR ACT
This case arises under the Clean Air Act (CAA), 42 U.S.C. §§
7401-7671q (2006). The CAA aims to “protect and enhance the
quality of the Nation’s air resources so as to promote the public
health and welfare and the productive capacity of its
population.” Id. § 7401(b)(1). In pursuit of this goal, the CAA
provides a role for the EPA, the states, and public citizens
themselves. The following is a brief overview of the respective
roles of these three players.
The EPA sets national ambient air quality standards (NAAQS)
for certain air pollutants. Id. § 7409(a)(1). The states submit
plans to the EPA for achieving and maintaining these standards.
Id. § 7407(a). State governors also designate areas within their
states as: (1) nonattainment, if the area does not meet the
standards; (2) attainment, if the area meets the standards; and
(3) unclassifiable, if the area cannot be classified on the basis
of available information. Id. § 7407(d). The facility at issue in
(D.D.C. 2012) (noting that a challenge to a claim under the
citizen suit provision of the APA is analyzed under Rule
12(b)(6)); Sierra Club, 648 F.3d at 853-54 (addressing the
inconsistency within the D.C. Circuit and holding under the APA
“a complaint seeking review of agency action ‘committed to agency
discretion by law,’ 5 U.S.C. § 701(a)(2), . . . should be
dismissed under Rule 12(b)(6)); WildEarth Guardians v. Salazaar,
No. 09-cv-1893, 2009 WL 6443120, at *3 (S.D. Tex. Dec. 7, 2009)
(analyzing the Endangered Species Act and holding that citizen
suits against the Administrator are a direct attack on the merits
of plaintiff’s case under Rule 12(b)(6)).
6
this case is located in an area designated as attainment or
unclassifiable for all NAAQS.
Further rules, known as the Prevention of Significant
Deterioration Program (PSD), attach to areas designated as
attainment or unclassifiable. The PSD requires facilities that
emit air pollution in excess of certain thresholds to obtain a
permit prescribing its emission limitations before it begins
constructing or modifying a major stationary emission source. Id.
§§ 7475(a), 7479(1).
As to facility operations, Title V of the CAA implements a
nationwide system of operating permits. Title V makes it unlawful
to operate major sources of air pollution “except in compliance
with a permit issued by a permitting authority.” Id. § 7661a(a);
see also Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC,
548 F.3d 738, 741-42 (9th Cir. 2008). A permitting authority is
the “air pollution control agency authorized by [the EPA] to
carry out a permit program” in a state or local jurisdiction. 42
U.S.C. § 7661(4); Sierra Club v. EPA, 536 F.3d 673, 674 n.1 (D.C.
Cir. 2008). The relevant permitting authority for this case is
the Louisiana Department of Environmental Quality ("LDEQ").
While the state and local permitting authorities issue
permits, the EPA has the opportunity to review proposed permits
and object to them if “any permit contains provisions that are .
. . not in compliance” with law. 42 U.S.C. § 7661d(a)(1), (b)(1).
7
If the EPA does not object, any person may petition the
Administrator to object. Id. § 7661d(b)(2). The Administrator
must object to the permit if the petitioner “demonstrates to the
Administrator that the permit is not in compliance with the
[CAA’s] requirements.” Id.
IV.
THE ADMINISTRATOR’S DUTIES ARE DISCRETIONARY
There are two settings in which the EPA objection process
may arise. The first is if the EPA objects before the permitting
authority issues a permit. In this setting, the permitting
authority may not issue the permit before revising it to meet the
objections. Id. § 7661d(b)(3). Section 505(c) provides that the
permitting authority has 90 days to submit the revised permit.
Id. § 7661d(c). If it does not, the EPA “shall issue or deny the
permit in accordance with [Title V].” Id.
The second setting, and the one at issue here, involves
cases in which the permitting authority has already issued a
permit before it receives an objection from the EPA. In this
setting, section 7661d(b)(3) provides:
If the permitting authority has issued a permit prior to
receipt of an objection by the Administrator under paragraph
(2) of this subsection, the Administrator shall modify,
terminate, or revoke such permit and the permitting
authority may thereafter only issue a revised permit in
accordance with subsection (c) of this section.
42 U.S.C. 7661d(b)(3). Next, section 7661(c) provides:
If the permitting authority fails, within 90 days after the
date of an objection under subsection (b) of this section,
to submit a permit revised to meet the objection, the
8
Administrator shall issue or deny the permit in accordance
with the requirements of this subchapter. No objection shall
be subject to judicial review until the Administrator takes
final action to issue or deny a permit under this
subsection.
42 U.S.C. 7661d(c).
Further, EPA regulations supplement these statutes and
provide that if a permit has been issued before an EPA objection,
the permitting authority has 90 days to resolve the objection. 40
C.F.R. § 70.7(g)(4). If the permitting authority fails to resolve
the objection, the Administrator “will terminate, modify, or
revoke and reissue the permit” after providing 30 days’ notice to
the permittee and providing the permittee an opportunity to
comment on the Administrator’s proposed action "and an
opportunity for a hearing." Id. § 70.7(g)(5).
The merits of this motion turn entirely on whether the EPA’s
duties under sections 7661d(b)(2), 7661d(b)(3), and 7661d(c) are
nondiscretionary duties. Here, LDEQ issued the permits before the
EPA’s objection, and Zen-Noh argues that these provisions impose
a nondiscretionary duty on the EPA to modify, terminate, or
revoke the permit. This Court determines that the duties at issue
are discretionary for two reasons: (1) to be nondiscretionary the
statute must provide an explicit deadline and (2) the regulatory
framework provides the EPA discretion over when it acts. See
discussion infra Parts IV.1-2.
1.
A STATUTORY DEADLINE IS NECESSARY TO DISTINGUISH
UNREASONABLE DELAY ACTIONS FROM NONDISCRETIONARY DUTY
9
ACTIONS
a.
Overview
The statutory scheme of the CAA provides two distinct
avenues for a citizen to compel agency action. The first is when
the EPA has failed to fulfil a nondiscretionary duty. As
explained below, nondiscretionary duties are statutory
obligations with an explicit deadline for the EPA to act. The
second avenue is to compel agency action unreasonably delayed.
Unreasonable delay claims concern statutory obligations that give
the EPA discretion over when it will act. The EPA's duties at
issue fall into the second category of statutory obligations
without an explicit deadline. These conclusions follow from a
reading of the CAA's statutory and regulatory scheme.
b.
The CAA's Statutory Scheme
Section 7604 recognizes a cause of action for an agency’s
failure to perform a nondiscretionary duty, 42 U.S.C. §
7604(a)(2), and a cause of action to compel agency action
unreasonably delayed. Id. § 7604(a). These are distinct causes of
action: a claim alleging a failure to perform a nondiscretionary
duty requires a plaintiff to give 60 days’ notice, while a claim
to compel agency action unreasonable delayed requires a plaintiff
to give 180 days’ notice. Id. § 7604(a), (b)(2). Further,
unreasonable delay claims have their own venue requirement as
they must be filed in a district court within the circuit in
10
which “such action would be reviewable under section 7607(b).”
Id. § 7604(a).
Courts have developed a bright-line test to distinguish the
two claims:
When the administrator misses a statutorily-imposed
deadline, his failure is not reviewed on a “reasonableness”
basis. Only when a statute requires agency action at
indefinite intervals, such as “from time to time”, can
“unreasonable delay” be a meaningful standard for judicial
review. In contrast, when, as here, a statute sets forth a
bright-line rule for agency action . . . there is no room
for debate- congress has prescribed a categorical mandate
that deprives EPA of all discretion over the timing of its
work.
Am. Lung. Ass’n v. Reilly, 962 F. 2d 258, 263 (2d Cir. 1992)
(citing Sierra Club v. Thomas, 828 F.2d 783, 791 (D.C. Cir.
1987)). In Sierra Club, the Court held that: “In order to impose
a clear-cut nondiscretionary duty, we believe that a duty of
timeliness must ‘categorically mandat[e]’ that all specified
action be taken by a date-certain deadline.” Sierra Club, 828
F.2d at 791 (citing NRDC v. Train, 510 F. 2d 692, 711 (D.D.C.
1974)). Sierra Club sets out a bright-line rule that has been
echoed by other circuit courts interpreting the CAA. See, e.g.,
Maine v. Thomas, 874 F.2d 883, 888 (1st Cir. 1989) (holding that
for a duty to be nondiscretionary “the appropriate check is to
ask when the duty must be fulfilled”); NRDC v. Thomas, 885 F.2d
1067, 1075 (2d Cir. 1989) (holding that a provision under the CAA
requiring the Administrator to act “from time to time” is
discretionary because of the absence of an explicitly listed
11
deadline); see also Mountain States Legal Found. v. Costle, 630
F.2d 754, 766 (10th Cir. 1980) (“Congress thus restricted
citizens’s suits to actions seeking to enforce specific nondiscretionary clear-cut requirements of the Clean Air Act.”)
(citing Anaconda Co. v. Ruckelshaus, 482 F.2d 1301 (10th Cir.
1973).2
The Fifth Circuit has not affirmatively adopted the Sierra
Club rule, but in Seabrook, a case predating Sierra Club, it
expressed the need for clear statutory language before finding a
nondiscretionary duty. Seabrook interpreted section 113 of the
CAA which provided that “[w]henever, on the basis of information
available to him, the Administrator finds that violations . . .
are so widespread. . . he shall notify the state.” 42 U.S.C. §
7413. The Court held that this language did not impose a
nondiscretionary duty on the EPA to make such a finding:
The language of neither § 113 nor any other section of the
statute imposes a mandatory duty on the Administrator to
make a finding every time some information concerning a
possible violation of a SIP is brought to his attention. In
the absence of a clear statutory mandate, we decline to
impose such a duty on the administrator.
2
Some district courts have also emphasized that a
statute needs a bright-lined rule in order to constitute a
nondiscretionary duty. See, e.g., Defenders of Wildlife v.
Browner, 888 F. Supp. 1005, 1008 (D. Ariz. 1995) (finding a
provision of the Clean Water Act requiring the agency to act
“promptly” to be discretionary because “where timeliness is at
issue, statutory provisions which do not set bright-line
deadlines fall outside the reach of a citizen’s suit”) (citing
NRDC, 885 F.2d at 1075).
12
Seabrook, 659 F.2d at 1374 (emphasis added); But see Manatee
Cnty. v. Train, 583 F.2d 179, 183-184 (5th Cir. 1978) (predating
Seabrook and analyzing the Clean Water Act). As explained below,
Seabrook supports the EPA’s position that a bright-line rule is
required for a statute to be nondiscretionary.3 This Court agrees
with the courts holding that an explicit deadline is necessary
for a duty to be nondiscretionary under the CAA.4
There is no explicit or readily ascertainable deadline in
sections 7661d(b)(2), 7661d(b)(3), or 7661d(c). The statute
requires the Administrator to revoke, terminate, or modify the
3
Seabrook explicitly disagrees with Wisconsin’s
Environmental Decade, Incorporated v. Wisconsin Power & Light,
Incorporated, 395 F. Supp. 313 (W.D. Wis. 1975), a case relied on
by Zen-Noh. The Court noted: “We think that the Wisconsin
Environmental court’s creation of a nondiscretionary duty which
is not imposed by the statutory language pays too little heed to
the doctrine of prosecutorial discretion.” Seabrook, 659 F.2d at
1375.
4
Zen-Noh notes that some district courts dispute whether
an explicit deadline is necessary for a duty to be
nondiscretionary. These courts infer from the statutory text and
structure that a duty is nondiscretionary. See, e.g., Sierra Club
v. Johnson, 500 F. Supp. 2d 936, 937 (N.D. Ill. 2007)
(interpreting section 7661d(c) to be nondiscretionary because “we
believe that ‘shall’ does not mean ‘whenever,’ and believe the
statute is meaningless without a time frame.”); Raymond Proffitt
Found. v. EPA, 930 F. Supp. 1088, 1097 (E.D. Pa. 1996) (holding
that an Administrator’s duties under the Clean Water Act were
nondiscretionary in part because of “Congress’s use of ‘shall’”);
Cross Timbers Concerned Citizens v. Saginaw, 991 F. Supp. 563,
568-69 (N.D. Tex. 1997) (asserting skepticism that duties under
the Clean Water Act do not require a readily ascertainable
deadline to be nondiscretionary). None of these cases is
controlling, and the Court does not find them persuasive on the
issue presented.
13
permits, but it does not say when. An explicit deadline is
important because it is the only way to distinguish between
claims for failure to perform a nondiscretionary duty and claims
for unreasonable delay. See Am. Lung. Ass’n, 962 F. 2d at 262-63.
If section 7604(a)(2) could be invoked to compel agency action
without an explicit deadline it would be indistinguishable from
an action for unreasonable delay. Id. (“Only when a statute
requires agency action at indefinite intervals, such as “from
time to time”, can “unreasonable delay” be a meaningful standard
for judicial review”).
Further, Zen-Noh’s argument that Congress’s use of “shall”
in the statute renders it nondiscretionary fails to preserve the
distinction between nondiscretionary duty suits and unreasonable
delay suits. First, to invoke either the nondiscretionary duty
cause of action or the unreasonable delay cause of action, the
agency action must be mandatory. See Norton v. S. Utah Wilderness
Alliance, 542 U.S. 55, 64 n.1 (2004) (“[A] delay cannot be
unreasonable with respect to action that is not required.”); Ctr.
for Biological Diversity v. EPA, 794 F. Supp. 2d 151, 156-57
(D.D.C. 2011) (“[A]n unreasonable-delay claim requires that the
agency has a duty to act in the first place.”). Accordingly, if a
mandatory duty is all that is required to invoke section
7604(a)(2), there would be no substantive difference between
nondiscretionary duty actions and unreasonable delay actions.
14
Zen-Noh has not cited to any authority compelling another
conclusion.5 Accordingly, the distinction between
nondiscretionary duties and unreasonable delay claims under the
CAA is preserved only by distinguishing between statutes that
provide explicit deadlines from those that do not. The
Administrator’s duties do not have a date-specific deadline and
are therefore outside of the scope of section 7604(a)(2).
Two district court cases have directly addressed this issue
and have come to opposite conclusions. Compare WildEarth, 2012 WL
3292974, at *4-5 (holding that the Administrator’s duties are
discretionary for the purpose of section 7604(a)(2)), with
Johnson, 500 F. Supp. 2d at 941 (holding that the Administrator’s
duties are nondiscretionary for the purpose of section
7604(a)(2)).
5
Zen-Noh relies on district court cases that support the
EPA's argument. In Raymond Proffitt, the Court declined to apply
the Sierra Club bright-line test to the Clean Water Act. It
interpreted the use of “shall” in the statute to impose a
nondiscretionary duty. Importantly, the Clean Water Act does not
have the same venue distinctions between unreasonable delay cases
and nondiscretionary duty cases. The Court noted:
The Sierra Club court fashioned its rule as part of an
attempt to distinguish between two court-bound avenues by
which a citizen may travel to file a suit alleging
unreasonable delay under the Clean Air Act. There is no
reason to transport the Sierra Club rule into the much
different context of a citizen’s suit claim alleging
violation of a nondiscretionary duty under [the Clean Water
Act].
Raymond Proffitt, 930 F. Supp. 1088 at 1100-01.
15
This Court finds WildEarth persuasive. Johnson fails to take
account of the regulatory procedures requiring the Administrator
to provide the state 90 days to resolve the objection, provide
the permittee with 30 days’ notice, and provide the permittee
with an opportunity for hearing. It also fails to consider the
role of the unreasonable delay cause of action in CAA citizen
suits. Johnson's concerns that “‘shall’ does not mean
‘whenever’,” and that “the statute is meaningless without a time
frame” are unfounded. Johnson, 505 F. Supp. 2d at 938. "Shall"
does not mean "whenever;" it means without unreasonable delay. It
is the unreasonable delay cause of action that provides a
meaningful time frame for this statute. WildEarth, 2012 WL
3292974, at *5 (“The “EPA itself concedes that its subject to an
obligation to act within a reasonable time after the 90-day
period expires, and that obligation can be enforced through the
unreasonable delay provisions of Section 304(a).”).6 In sum, this
6
Zen-Noh relies on other cases that are distinguishable.
R. Doc. 19 at 9. Plaintiff’s claims in Center for Biological
Diversity were to compel actions for unreasonable delay and are
therefore unhelpful to Zen-Noh’s attempt to finding a section
7604(a)(2) nondiscretionary duty. Ctr. for Biological Diversity,
794 F. Supp. 2d at 153. In American Canoe Association v. EPA, 30
F. Supp. 2d 908 (E.D. Va. 1998), the Court found that the statute
at issue did “offer such a readily-ascertainable deadline” under
the Sierra Club standard. Am. Canoe Ass’n v. EPA, 30 F. Supp. 2d
at 920-921 (noting that “[u]nder Sierra Club v. Thomas, a
deadline need not be explicitly set out in a statute if its
readily ascertainable by reference to a fixed time or event” and
explaining that the Clean Water Act provided time-specific
deadlines).
Sierra Club v. Leavitt also found that the statute provided
16
Court refuses to fashion an explicit deadline into a statute that
has none in order to recognize a redundant cause of action.
2.
ZEN-NOH’S INTERPRETATION IS INCONSISTENT WITH THE EPA'S
REGULATORY SCHEME
The EPA's regulations are consistent with its interpretation
that the statutes at issue provide it discretion over when to
act. When the permitting authority issues a permit before an EPA
objection, EPA statutes and regulations provide the permitting
authority with 90 days to resolve the objection. 40 C.F.R. §
70.7(g)(4). If the permitting authority fails to resolve the
objection, the regulations provide that the Administrator “will
terminate, modify, or revoke and reissue the permit” after
providing 30 days’ notice to the permittee, providing the
permittee an opportunity to comment on the Administrator’s
proposed action, and providing the permittee an opportunity for a
hearing. 40 C.F.R. §§ 70.7(g)(5), 71.4(e). These provisions
negate the idea that the EPA must immediately act on the permit
after 90 days.
Zen-Noh argues that the EPA’s notice of final rulemaking
provides support for its argument that the Administrator's duty
at issue is nondiscretionary. Zen-Noh relies on the following
an explicit deadline: “The words used in the regulation clearly
indicate that the duty imposed on the Administrator is
nondiscretionary, as it required the Administrator to prose a
rule by July 1, 2003, and to finalize it within one year
thereafter.” Sierra Club, 355 F. Supp. 2d at 549.
17
passage from the notice to the final rule:
The proposal required permitting authorities to suspend a
permit if the Administrator objected to the permit as a
result of a public petition under § 70.8(d). Upon further
review, EPA now believes that this provision would not meet
the requirements of section 505(b)(3) of the Act. The final
rule states that upon EPA objection as a result of a
petition and after the permit is issued, EPA shall modify,
terminate, or revoke the permit. The permitting authority
can thereafter issue a revised permit meeting EPA's
objections. These provisions are as section 505(b)(3) of the
Act stipulates and EPA has no discretion to do otherwise.
Operating Permit Program, 57 Fed. Reg. 32250-01, at *32290 (July
21, 1992). Zen-Noh derives two arguments from this passage.
First, it argues that because suspending the permit would not
comply with the statute, the statute must be mandatory. This is
correct because, as discussed above, “shall” does mean “shall.”
But the mere existence of an obligation does not make it
nondiscretionary for the purpose of section 7604(a)(2). Neither
the EPA nor Zen-Noh disagrees that the Administrator must modify,
terminate, or revoke the permit at some point. Here, the EPA is
simply clarifying that a fourth option of suspending the permit
would contradict the statute’s mandatory nature. Accordingly,
this first point does not help Zen-Noh.
Second, Zen-Noh argues that “upon” in the passage means that
the Administrator must modify, terminate, or revoke the permit
simultaneously with or immediately after its objection, or, at
the latest, 90 days after its objection. This argument
contradicts the final rule which provides that the EPA give the
18
state 90 days to resolve the objection, and provide the permittee
30 days’ notice, as well as an opportunity for a hearing. The EPA
acknowledged these requirements:
Section 70.8(d) provides that where EPA, in response to a
public petition, has objected to a permit that has already
been issued, EPA will modify, terminate, or revoke such
permit. The final rule clarifies that EPA shall do so
consistent with the procedures for reopening a permit for
cause set forth in § 70.7(g)(4) or (5)(i) and (ii).
Operating Permit Program, 57 Fed. Reg. at *32290. Zen-Noh’s
argument that “upon” means “immediately” is precluded by the
EPA’s own regulations. There is simply no explicit deadline to be
found in either the notice or the rule itself. See WildEarth,
2012 WL 3292974, at *4-5 (“To state these additional procedures,
then, is to make apparent that there cannot be a date-certain
deadline for EPA’s decision to deny or revoke the permit.”).
Accordingly, Zen-Noh’s interpretation is inconsistent with these
procedures.
Zen-Noh’s last attempt to work around the EPA’s procedures
is to argue that they must give way because: “To the extent that
a regulatory process frustrates or renders meaningless a
Congressional statutory mandate, it must yield to Congress’s
will.” Avenal Power Ctr. v. EPA, 787 F. Supp. 2d 1, 4 (D.D.C.
2011). Avenal, however, dealt with an explicit statutory
deadline. The statute at issue required the EPA to grant or deny
specific permits within one year, and the Court held that: “while
the Administrator is welcome to avail herself of whatever
19
assistance the EAB can provide her within the one-year statutory
period, she cannot use that process as an excuse, or haven, to
avoid statutory compliance.” Id. As discussed above, there is no
explicit deadline in the statutes at issue. Accordingly, the EPA
regulations are consistent with the statute and are not
overriding any statutory deadline.
Accordingly, because the Administrator’s duties are
discretionary for the purposes of section 7604(a)(2), this Court
lacks subject matter jurisdiction over this matter.7
V.
CONCLUSION
The EPA’s motion to dismiss for lack of subject matter
jurisdiction is GRANTED. There is no applicable waiver of the
federal government’s sovereign immunity. Zen-Noh’s claims are
dismissed for lack of jurisdiction.
New Orleans, Louisiana, this 30th day of April, 2013.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
7
Zen-Noh argues that the recent LDEQ response does
nothing to moot its claims. The EPA does not argue that the
LDEQ’s response terminates its obligations; accordingly, the
LDEQ’s response is not relevant to this Court’s decision. R. Doc.
19 at 16-17.
20
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