Tuesday, July 5, 2011

Sierra Club v. Lisa Jackson

Jul 1: the U.S. Court of Appeals, D.C. Circuit, Case No. 10-5280. Appealed from the United States District Court for the District of Columbia. Appellants, nonprofit environmentalist organizations, appeal from a judgment of dismissal entered by the district court in an action against the United States Environmental Protection Agency (EPA) under the citizen suit provision of the Clean Air Act, challenging the Administrator's failure to take action to prevent the construction of three proposed pollution-emitting facilities in Kentucky. The district court held that there was no mandatory duty to act and granted the EPA's motion to dismiss for lack of subject matter jurisdiction. The Appeals Court affirmed the dismissal on different grounds.
    The three projects underlying this litigation are the East Kentucky Power Cooperative's J.K. Smith Generating Station coal-fired CFB Boiler Project (Smith), Conoco Phillips and Peabody's Kentucky NewGas Synthetic Natural Gas Production plant (NewGas), and Cash Creek Generation LLC's coal-fired Cash Creek Generating Station (Cash Creek). Because each facility qualifies as a "major emitting facility," see § 7479(1), and because each is proposed to be built in a county designated as an attainment area, all three facilities are required to obtain permits from the State of Kentucky. § 7475(a). The permits are part of the statutory Prevention of Significant Deterioration (PSD) program implementing the requirements of § 7475(a). Kentucky granted PSD permits to each facility prior to September 15, 2010. That fact is significant because until that date, the Kentucky State Implementation Plan failed to meet the requirements of the Clean Air Act's PSD regulations.
    The Appeals Court explains that, "When neither the Administrator nor the state took action to prevent the construction of the nonconforming major emitting facilities, appellants, two environmentalist nonprofits (collectively referred to as Sierra Club), brought the present action under 42 U.S.C. § 7604(a)(2), which provides for the filing of citizen suits against the Administrator for her alleged failure to perform any nondiscretionary duty under the Act. Arguing that her duty under § 7477 was discretionary, and therefore beyond the reach of the statute, the Administrator moved for dismissal. Agreeing with the Administrator, the district court ruled that the Administrator's decision not to exercise her statutory duty was discretionary, and thus not subject to judicial review. Sierra Club v. Jackson, 724 F. Supp. 2d 33 (D.D.C. 2010). The district court entered a judgment of dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction. Sierra Club brought the present appeal."
    The Appeals Court explains its ruling on different grounds and said, "Although we hold that we do not lose jurisdiction over this controversy by reason of mootness, this does not resolve the jurisdictional theory upon which the district court relied in dismissing the case under Rule 12(b)(1) for lack of subject matter jurisdiction. Sierra Club, 724 F. Supp. 2d at 42-43. The district court's ruling was based on the proposition that the Administrator's decision was discretionary and therefore not justiciable. Before this court, Sierra Club, which certainly does not concede that the district court should have dismissed the claim at all, argues that the analysis should have been under Rule 12(b)(6) to determine whether the complaint failed to state a claim upon which relief could be granted rather than under the jurisdictional standards of Rule 12(b)(1). While it does not in the end affect the outcome, we ultimately agree that Rule 12(b)(6) should govern. We hasten to state that we do not fault the district court for basing its dismissal on Rule 12(b)(1) rather than Rule 12(b)(6). The distinction between a claim that is not justiciable because relief cannot be granted upon it and a claim over which the court lacks subject matter jurisdiction is important. But we cannot fault the district court, as this court 'ha[s] not always been consistent in maintaining these distinctions.' Oryszak v. Sullivan, 576 F.3d 522, 527 (D.C. Cir.2009) (Ginsburg, J., concurring). Indeed, we have provided authority both that discretionary duty claims fall outside our jurisdiction, and that such claims are nonjusticiable under Rule 12(b)(6). In Association of Irritated Residents v. EPA, we held that agency decisions excluded from judicial review by 5 U.S.C. § 701(a)(2) are outside the court's jurisdiction. 494 F.3d 1027, 1030 (D.C. Cir. 2007) ('In this case, subject matter jurisdiction turns on whether the Agreement constitutes a rulemaking subject to APA review, or an enforcement proceeding initiated at the agency's discretion and not reviewable by this court.'). Two years later, in Oryszak v. Sullivan, we came to a different conclusion."
    Access the complete opinion (click here). [*Air, #CADC]

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