Consol. Envtl. Mgmt., Inc. v. McCarthy
| Decision Date | 22 November 2016 |
| Docket Number | CIVIL ACTION NO. 16-1432 SECTION "R" (1) |
| Parties | CONSOLIDATED ENVIRONMENTAL MANAGEMENT, INC. AND NUCOR STEEL LOUISIANA, LLC v. REGINA MCCARTHY, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY |
| Court | U.S. District Court — Eastern District of Louisiana |
Defendant Regina McCarthy, administrator of the Environmental Protection Agency (EPA), moves to dismiss Nucor Steel Louisiana, LLC's claim for lack of subject matter jurisdiction.1 For the following reasons, the EPA's motion is GRANTED.
Plaintiffs are Consolidated Environmental Management, Inc. and Nucor Steel Louisiana, LLC. Nucor operates pig iron and direct reduced iron (DRI) manufacturing facilities near the town of Convent, St. James Parish,Louisiana. In conjunction with the construction and operation of these facilities, Nucor received various permits from the Louisiana Department of Environmental Quality (LDEQ), including Louisiana Prevention of Significant Deterioration permits and Louisiana Title V permits for both pig iron and DRI. These permits are authorized under the Clean Air Act, and LDEQ has been approved by the EPA to administer these permitting programs. See 42 U.S.C. § 7661a(d); 40 C.F.R. § Pt. 70, App. A.
On January 27, 2011, LDEQ issued Nucor a Title V permit for the DRI processing facility and modified a previous permit for the pig iron processing facility.2 Consistent with LDEQ regulations, LDEQ also issued PSD permits for both the DRI and pig iron facilities concurrently with the Title V permits.3 The PSD permits have since been modified.4 The EPA did not object to these permits pursuant to 42 U.S.C. § 7661d(b)(1).5
On May 3, 2011, the Zen-Noh Grain Corporation, the Louisiana Environmental Action Network ("LEAN"), and the Sierra Club petitioned the EPA to object to the DRI permits.6 On March 24, 2012, the EPA granted inpart Zen-Noh's petition ("2012 Order").7 On June 21, 2012, LDEQ submitted a response to the 2012 Order. The EPA treated this response as a new proposed permit subject to petitions for an objection under section 7661d(b)(2).8 The Sierra Club and LEAN submitted a new petition to the EPA asking it to object to LDEQ's response, which the EPA denied in part on June 19, 2013 ("2013 Order").9 The EPA did not address all of the issues raised by Sierra Club and LEAN in the 2013 Order, but addressed the remaining issues in its January 30, 2014 order ("2014 Order").10 The 2014 Order granted the petitions in part and denied them in part.11 LDEQ submitted a response to the 2014 Order, and consistent with its previous practice, EPA treated this response as a new proposed permit.12
On February 19, 2016, Nucor filed this citizen suit alleging that the EPA failed to take nondiscretionary actions and/or unreasonably delayed taking mandatory actions as required by the Clean Air Act, and violated theAdministrative Procedure Act by issuing orders that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.13 Plaintiffs seek an order vacating the EPA's 2012 and 2014 Orders. They also seek a declaratory judgment stating what actions the EPA can and cannot take, and establishing that Nucor's four permits are valid, enforceable, and free and clear of any continuing EPA objection.14 In response, the EPA has filed this motion to dismiss for lack of subject matter jurisdiction.15 Nucor filed a response in opposition to the EPA's motion,16 and the EPA replied.17
Federal courts are courts of limited jurisdiction and possess power over only those cases authorized by the United States Constitution and federal statutes. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). If a district court lacks jurisdiction over the subject matter of a plaintiff's claims, dismissal is required. See Fed. R. Civ. P. 12(b)(1). 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. 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).
A rule 12(b)(1) motion is analyzed under the same standard as a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). 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, 556 U.S. 662, 678 (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." Iqbal, 556 U.S. at 678. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favorof 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. Iqbal, 556 U.S. at 678.
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 basisof available information. Id. § 7407(d). The facilities at issue in this case are 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.
While the state and local permitting authorities issue permits, the EPA can review proposed permits and object to them if "any permit containsprovisions that are . . . not in compliance" with law. 42 U.S.C. § 7661d(a)(1), (b)(1). 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. If the EPA objects to an already-issued permit, the "Administrator shall modify, terminate, or revoke such permit and the permitting authority may thereafter only issue a revised permit." Id. § 7661d(b)(3). If the permitting authority fails to submit a revised permit within 90 days of an objection, the "Administrator shall issue or deny the permit in accordance with the requirements of this subchapter." Id. § 7661d(c). Notably, "no objection shall be subject to judicial review until the Administrator takes final action to issue or deny a permit under this subsection." Id.
Nucor's complaint asserts that the EPA failed to take nondiscretionary action in the form of either modifying, terminating, or revoking the permits in question, and/or that EPA has unreasonably delayed in taking mandatory action. The EPA responds that one of the permits that Nucor seeks to have this Court declare valid has since expired and has been replaced, making thatclaim moot. Additionally, the EPA argues that Nucor has not established standing, and that the citizen suit provision in the Clean Air Act does not provide jurisdiction over Nucor's claims to relief. Because this Court concludes that it lacks jurisdiction over the substance of Nucor's complaint, it does not reach EPA's standing or mootness arguments.
A. Sovereign Immunity
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). Nucor alleges that jurisdiction is...
To continue reading
Request your trial