State v. U.S. Envtl. Prot. Agency

• Decision Date: 03 September 2014
• Docket Number: Nos. 13–9535,13–9536.,s. 13–9535
• Parties: State of UTAH, on behalf of the Utah Department of Environmental Quality, Division of Air Quality, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Gina McCarthy, Administrator, United Stated Environmental Protection Agency, Respondents. Utah Associated Municipal Power System, Intervenor. PacifiCorp, Petitioner, v. United States Environmental Protection Agency, and Gina McCarthy, Administrator, United States Environmental Protection Agency, Respondents. Utah Associated Municipal Power System, State of Utah, Department of Environmental Quality and Division of Air Quality, Intervenors.
• Court: U.S. Court of Appeals — Tenth Circuit

765 F.3d 1257

State of UTAH, on behalf of the Utah Department of Environmental Quality, Division of Air Quality, Petitioner,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Gina McCarthy, Administrator, United Stated Environmental Protection Agency, Respondents.

Utah Associated Municipal Power System, Intervenor.

PacifiCorp, Petitioner,

v.United States Environmental Protection Agency, and Gina McCarthy, Administrator, United States Environmental Protection Agency, Respondents.

Utah Associated Municipal Power System, State of Utah, Department of Environmental Quality and Division of Air Quality, Intervenors.

Nos. 13–9535, 13–9536.

United States Court of Appeals,

Tenth Circuit.

Sept. 3, 2014.

Craig W. Anderson, Christian Stephens, Utah Attorney General's Office, Salt Lake City, UT, for Petitioner.

Scott C. Fulton, U.S. Epa Office of Enforcement & Compliance Assurance, Chloe H. Kolman, Stephanie J. Talbert, U.S. Department of Justice, Washington, DC, for Respondents.

Mason Baker, General Counsel Utah Associated Municipal Power Systems, Salt Lake City, UT, Mary Jane Elizabeth Galvin–Wagg, Esq., Homer Michael Keller, Van Cott, Bagley, Cornwall & McCarthy, Michael G. Jenkins, PacifiCorp Energy, E. Blaine Rawson, Ray Quinney & Nebeker, Salt Lake City, UT, for Intervenor.

Before BACHARACH, SEYMOUR, and MURPHY, Circuit Judges.

OPINION DENYING PANEL REHEARING

BACHARACH, Circuit Judge.

In a previous opinion, we dismissed Utah and PacifiCorp's petitions for review based on a lack of jurisdiction. We lack jurisdiction because Utah and PacifiCorp filed their petitions after the expiration of a jurisdictional deadline. The Petitioners apply for panel rehearing, and we deny the applications.

I. The Petitioners' Earlier Arguments & Our Panel Opinion

The Clean Air Act required Utah to submit a proposed implementation plan to the Environmental Protection Agency. Utah complied, but the EPA rejected parts of the plan. The State of Utah and other aggrieved parties could obtain judicial review under 42 U.S.C. § 7607(b)(1) by filing a petition within 60 days. See Clean Air Act, 42 U.S.C. § 7607(b)(1) (2012).

The State of Utah and PacifiCorp missed the deadline, prompting our court to order briefing on appellate jurisdiction in light of the 60–day deadline. Utah and PacifiCorp responded that the petitions were timely but never addressed the jurisdictional nature of the deadline.

We ultimately held that the petitions were untimely and that the defect was jurisdictional. Now, for the first time, Utah and PacifiCorp argue that the statutory deadline is not jurisdictional, complaining that the panel should have more fully explained its conclusion.

II. The Jurisdictional Nature of the 60–Day Deadline

With the benefit of the parties' newly presented arguments, we revisit whether the statutory deadline is jurisdictional. Ultimately, however, we adhere to the conclusion stated in the panel opinion: The deadline in § 7607(b)(1) is jurisdictional.

Filing deadlines can be jurisdictional or non jurisdictional. To decide which deadlines are jurisdictional, we apply a “bright-line” rule. See Sebelius v. Auburn Reg'l Med. Ctr., ––– U.S. ––––, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013).

This rule focuses on Congress's stated intention. Id. When Congress clearly states that a deadline is jurisdictional, we regard it as jurisdictional. Id. To make its intention “clear,” however, Congress need not use any particular words. Id. Thus, when we determine whether Congress has spoken clearly, we focus on the legal character of the deadline, as shown through its text, context, and historical treatment. See Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) ( “[T]he jurisdictional analysis must focus on the ‘legal character’ of the requirement, which we discerned [in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) ] by looking to the condition's text, context, and relevant historical treatment.” (citation omitted)).

Following this framework, we focus on § 7607(b)(1)'s text, context, and historical treatment to determine whether the 60–day deadline is jurisdictional.

We first look to the statutory text. “[A] statutory restriction need not go so far as to use the magic word ‘jurisdiction,’ but must use ‘clear jurisdictional language.’ ” United States v. McGaughy, 670 F.3d 1149, 1156 (10th Cir.2012) (quoting Gonzalez v. Thaler, ––– U.S. ––––, 132 S.Ct. 641, 649, 181 L.Ed.2d 619 (2012)).

In § 7607(b)(1), Congress used jurisdictional terminology: “shall” and “petition for review.” Clean Air Act, 42 U.S.C. § 7607(b)(1) (2012); see Sebelius v. Auburn Reg'l Med. Ctr., ––– U.S. ––––, 133 S.Ct. 817, 825–26, 184 L.Ed.2d 627 (2013) (stating that the words “shall” and “notice of appeal” carry “jurisdictional import” in connection with the statutory deadline for appeals from district courts). Congress used this terminology because it regarded the 60–day deadline as jurisdictional.

In 1970, Congress amended the Clean Air Act to impose a 30–day deadline for citizen suits. Clean Air Act, 42 U.S.C. § 1857h–5(b)(1) (1970). In amending the statute, Congress recognized that if a petition was filed after 30 days, the court could consider the matter only if “significant new information [had] become available.” S.Rep. No. 91–1196, pp. 65–66 (1970), reprinted in U.S. Sen. Comm. on Pub. Works, A Legislative History of the Clean Air Amendments of 1970 465–66 (1974).

With this statutory amendment, courts characterized the 30–day deadline as jurisdictional. E.g., Nat'l Ass'n of Demolition Contractors, Inc. v. Costle, 565 F.2d 748, 750 n. 2 (D.C.Cir.1977); Sears, Roebuck & Co. v. EPA, 543 F.2d 359, 361 (D.C.Cir.1976) (per curiam); Natural Res. Def. Council, Inc. v. EPA, 483 F.2d 690, 692 n. 1 (8th Cir.1973).

One appeals court took a different approach when confronting a similar deadline in the Glass–Steagall Act, suggesting that claimants might be able to avoid the deadline if they had a legitimate excuse. Inv. Co. Inst. v. Bd. of Governors, 551 F.2d 1270, 1281–82 (D.C.Cir.1977) (dicta). This language alarmed many in Congress, who hoped to dispel any notion that the Clean Air Act's deadline could be avoided if the claimant had an “excuse.” Thus, the House Committee on Interstate and Foreign Commerce explained its concern over this court decision and emphasized the inflexible nature of the statutory deadline in the Clean Air Act: “What is of concern to the committee is the possible application of dictum in that case [ Investment Company Institute v. Board of Governors ] to the Clean Air Act. The dictum which is of concern states that, with an undefined legitimate excuse, the statutory deadline (and the underlying policies of expedition and finality) may be circumvented.” H.R.Rep. No. 95–294, at 322 (1977), reprinted in 4 U.S. Sen. Comm. on Env't & Pub. Works, A Legislative History of the Clean Air Act Amendments of 1977 2789 (1979).

Notwithstanding this concern, Congress lengthened the deadline (from 30 days to 60 days) in the Clean Air Act. Pub.L. No. 95–95, 91 Stat. 685, 776 (1977). Though Congress lengthened the period for suit, the House Committee on Interstate and Foreign Commerce stressed the jurisdictional nature of the new 60–day deadline:

In extending to 60 days the time within which a party may file a petition for review of certain EPA actions, the committee wishes to reaffirm its intent to strictly limit section 307 challenges to those which are actually filed within that time. The only instance in which the committee intends that later challenges may be entertained by the court of appeals are those in which the grounds arise solely after the 60th day. Thus, unless a petitioner can show that the basis for his challenge did not exist or was not reasonably to be anticipated before the expiration of 60 days, the court of appeals is without jurisdiction to consider a petition filed later than 60 days after the publication of the promulgated rule.

H.R.Rep. No. 95–294, at 322 (1977) (emphasis added), reprinted in 4 U.S. Sen. Comm. on Env't & Pub. Works, A Legislative History of the Clean Air Act Amendments of 1977 2789 (1979). Thus, the statutory language reflects Congress's explicit recognition that the 60–day deadline is jurisdictional.

Like the statutory language, the context of § 7607(b)(1) supports the conclusion that it is jurisdictional. This section not only supplies a deadline but also serves as the jurisdictional basis for petitions like the ones here. See Oklahoma v. EPA, 723 F.3d 1201, 1204 (10th Cir.2013) (stating that the court had jurisdiction under 42 U.S.C. § 7607(b)(1)); Ariz. Pub. Serv. Co. v. United States EPA, 562 F.3d 1116, 1118 (10th Cir.2009) (stating that jurisdiction existed under 42 U.S.C. § 7607(b)(1)); see also Harrison v. PPG Indus., Inc., 446 U.S. 578, 593, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980) (stating that “Congress ... vested the courts of appeals with jurisdiction under [42 U.S.C. § 7607(b)(1) ]”).¹

Without § 7607(b)(1), we would lack jurisdiction because the federal government would have enjoyed sovereign immunity in suits against the EPA. See Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir.2001) (“Suits against the EPA, as against any agency of the United States, are barred by sovereign immunity, unless there has been a specific waiver of that immunity.”); see also FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (stating that sovereign immunity shields federal agencies from suit). Congress waived sovereign immunity through § 7607(b)(1). See Royster–Clark Agribusiness, Inc. v. Johnson, 391 F.Supp.2d 21, 25–26 (D.D.C.2005).

Though § 7607(b)(1) waives sovereign immunity, the waiver contains limitations, including the 60–day deadline. Through this deadline, § 7607(b)(1) serves a jurisdictional function by restricting the congressional waiver of sovereign immunity. See Block v. North Dakota ex rel. Bd. of Univ. & School Lands, ...