California v. U.S. E.P.A., Case No. 18-cv-03237-HSG

• Decision Date: 21 December 2018
• Docket Number: Case No. 18-cv-03237-HSG
• Citation: 360 F.Supp.3d 984
• Court: U.S. District Court — Northern District of California
• Parties: State of CALIFORNIA, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

360 F.Supp.3d 984

State of CALIFORNIA, et al., Plaintiffs,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Case No. 18-cv-03237-HSG

United States District Court, N.D. California.

Signed December 21, 2018

Timothy Eugene Sullivan, Elizabeth B. Rumsey, California State Attorney General's Office, Oakland, CA, Daniel Isaac Rottenberg, Pro Hac Vice, Illinois State Attorney General's Office, Chicago, IL, Leah Tulin, Pro Hac Vice, Office of the Maryland State Attorney General, Baltimore, MD, William G. Grantham, Pro Hac Vice, New Mexico Attorney General's Office, Albuquerque, NM, Ari Biernoff, New Mexico Attorney General's Office, Santa Fe, NM, Paul Andrew Garrahan, Pro Hac Vice, Oregon Department of Justice Natural Resources Section, Portland, OR, Michael John Fischer, Pro Hac Vice, Office of Attorney General, Philadelphia, PA, Nicholas F. Persampieri, Pro Hac Vice, Office of the Attorney General, Montpelier, VT, for Plaintiffs.

Leslie M. Hill, Martha Collins Mann, United States Department of Justice Environment & Natural Resources Division Environmental Defense Section, Washington, DC, for Defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND MOTION TO STAY CASE

Re: Dkt. Nos. 28, 70

HAYWOOD S. GILLIAM, JR., United States District Judge

Pending before the Court is a motion to dismiss Plaintiffs complaint,¹ see Dkt. No. 1. ("Compl"), filed by Defendants—U.S. Environmental Protection Agency and Andrew R. Wheeler, in his official capacity as Acting Administrator of the U.S. Environmental Protection Agency (collectively, "EPA"),² see Dkt. No. 28 ("MTD"). Briefing on this motion is complete. See Dkt. Nos. 48 ("MTD Opp."),³ 65 ("MTD Reply"). The Court held a hearing on October 25, 2018. See Dkt. No. 69. Also pending before this Court is EPA's motion to stay proceedings through April 30, 2019, Dkt. No. 70 ("MTS"), briefing for which is also complete, see Dkt. Nos. 73 ("MTS Opp."),⁴ 76 ("MTS Reply").⁵

For the reasons set forth below, the Court DENIES both motions.

I. BACKGROUND

The Clean Air Act ("CAA" or the "Act") "protect[s] and enhance[s] the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401(b)(1).⁶ To that end, the Act directs the EPA Administrator to "publish ... a list of categories of stationary sources" that "in [the Administrator's] judgment ... cause[ ], or contribute[ ] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare." Id. § 7411(b)(1)(A). Once the agency includes a category of stationary sources in the list, the agency must "publish proposed regulations, establishing Federal standards of performance" for emission of pollutants from new or modified sources "within such category." Id. § 7411(b)(1)(B); see also id. § 7411(a)(2).

As relevant here, the Act also requires the regulation of "existing sources" that fall within the same category, provided that the emissions are not already covered by certain other CAA programs. See id. § 7411(d). Specifically, the CAA states that "[t]he Administrator shall prescribe regulations which shall establish a procedure similar to that provided by section 7410 of this title under which each State shall submit to the Administrator a plan [that] establishes standards of performance," and "provides for the implementation and enforcement of such standards of performance." Id. § 7411(d)(1). The Act further provides that the Administrator has authority to promulgate a federal implementation plan "in cases where [a] State fails to submit a satisfactory plan." Id. § 7411(d)(2); see also id. § 7410(c).

Consistent with the CAA's instruction, EPA promulgated regulations, which established deadlines for the implementation of emission guidelines. According to the regulations, once EPA published an emission guideline, each State to which the guideline pertained was required to "adopt and submit to the Administrator ... a plan" to implement the guideline "[w]ithin nine months." 40 C.F.R. § 60.23(a)(1). The agency then was required to "approve or disapprove" such implementation plans "within four months after the date required for submission of a plan or a plan revision." Id. § 60.27(b). Last, if states to which the guideline pertained did not submit an implementation plan or EPA disapproved of a submitted plan, the Administrator was required, "within six months after the date required for submission of a plan or plan revision, [to] promulgate [a federal plan]" to implement the guideline. Id. § 60.27(d).

On August 29, 2016, EPA promulgated a final rule related to Municipal Solid Waste ("MSW") landfills. Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills , 81 Fed. Reg. 59,276 (Aug. 29, 2016) ("Landfill Emissions Guidelines"). The Landfill Emissions Guidelines became effective on October 28, 2016. In turn, according to EPA's regulations:

1. States were required to submit implementation plans by May 30, 2017, see 40 C.F.R. § 60.23(a)(1) ;

2. EPA was required to approve or disapprove submitted plans by September 30, 2017, see 40 C.F.R. § 60.27(b) ; and

3. If either (i) states to which the guideline pertained did not submit implementation plans, or (ii) EPA disapproved a submitted plan, then EPA was required to promulgate a federal plan by November 30, 2017, see 40 C.F.R. § 60.27(d).

As of May 30, 2017, California and New Mexico submitted implementation plans as described by the regulations. Dkt. No. 58 ¶ 2. Arizona submitted an implementation plan on July 24, 2018. Id. To date, EPA has neither approved or disapproved of any submitted plans nor promulgated a federal plan. Id. ¶¶ 1–2. Accordingly, Plaintiffs brought this action, which seeks to have this Court "[i]ssue a declaratory judgment that, by failing to implement and enforce the Emission Guidelines, EPA has violated the Clean Air Act;" and "[i]ssue a mandatory injunction compelling EPA to implement and enforce the Emission Guidelines." Compl. at 19.

II. MOTION TO DISMISS

EPA now moves to dismiss this case under Federal Rule of Civil Procedure 12(b)(1) because, according to EPA, there has been no unequivocal waiver of sovereign immunity. See MTD at 6–9. EPA further argues that "Plaintiffs' claim that EPA failed to promulgate federal plans must be dismissed" under Rule 12(b)(6), because Plaintiffs failed to identify any specific state that should have submitted plans, which would have triggered EPA's duty to promulgate a federal plan under the relevant regulations. Id. at 12.

A. The Court has Subject Matter Jurisdiction

The Court begins with the jurisdictional dispute, which is a threshold issue. EPA argues that dismissal under Rule 12(b)(1) is warranted because the citizen suit provision of the CAA does not "unequivocally waive[ ] the sovereign immunity of the United States" for duties imposed by agency regulations. See MTD at 6–9. Plaintiffs contend that the CAA waives sovereign immunity for duties imposed by agency regulations. MTD Opp. at 9–16. Alternatively, Plaintiffs argue that even if the CAA does not provide a remedy, either the Administrative Procedure Act ("APA") or mandamus would. Id. at 17–18.

i. Legal Standard

A defendant may move for dismissal on the ground that the court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The burden of proof on a Rule 12(b)(1) motion rests with the party asserting jurisdiction, and courts presume the absence of jurisdiction until the pleading party proves otherwise. See Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; Scott v. Breeland , 792 F.2d 925, 927 (9th Cir. 1986) ("The party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists"). Moreover, the Court has "broad discretion to consider relevant and competent evidence on a motion to dismiss for lack of subject matter jurisdiction that raises factual issues." 5B Wright & Miller, Federal Practice and Procedure § 1350 (3d ed. 2018) ; see also Arbaugh v. Y & H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

A Rule 12(b)(1) motion is appropriate where a claim is barred by the doctrine of sovereign immunity. "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." United States v. Mitchell , 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ; see also Consejo de Desarrollo Economico de Mexicali, A.C. v. United States , 482 F.3d 1157, 1173 (9th Cir. 2007) ("The United States, as a sovereign, is immune from suit unless it has waived its immunity."); 14 Wright & Miller, Fed. Prac. & Proc. Juris. § 3654 (4th ed.). In addition, "[t]he United States must waive its sovereign immunity before a federal court may adjudicate a claim brought against a federal agency." Rattlesnake Coal. v. U.S. EPA , 509 F.3d 1095, 1103 (9th Cir. 2007). Otherwise, the court lacks subject matter jurisdiction over the claims. Id. A waiver of sovereign immunity "must be unequivocally expressed in the statutory text." Lane v. Pena , 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996). Although waiver must be "clearly discernable" from the statutory text, Congress need not employ particular "magic words" or "state its intent in any particular way." F.A.A. v. Cooper , 566 U.S. 284, 291, 132 S.Ct. 1441, 182 L.Ed.2d 497 (2012). The party bringing suit has the burden of directing a court to the unmistakable waiver. See Fifty Assocs. v. Prudential Ins. Co. of Am. , 446 F.2d 1187, 1189 (9th Cir. 1970) ("A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment.").

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