Royster-Clark Agribusiness, Inc. v. Johnson
Citation | 391 F.Supp.2d 21 |
Decision Date | 29 August 2005 |
Docket Number | No. CIV.A.05-0122 ESH.,CIV.A.05-0122 ESH. |
Parties | ROYSTER-CLARK AGRIBUSINESS, INC. and Royster-Clark, Inc., Plaintiffs, v. Stephen L. JOHNSON, Administrator, United States Environmental Protection Agency, Defendant. |
Court | U.S. District Court — District of Columbia |
Matthew David Schwartz, Ryan Kenneth Manger, Thompson Coburn, LLP, Washington, DC, Joseph M. Kellmeyer, Stephen G. Jeffery, Thompson Coburn LLP, St. Louis, MO, for Plaintiffs.
Jessica O'Donnell, U.S. Department of Justice, Washington, DC, for Defendant.
Plaintiffs seek a declaration that defendant has acted in excess of his statutory authority by issuing a Notice of Violation ("NOV") of the Clean Air Act ("CAA"), 42 U.S.C. § 7401, et seq., and an injunction to prevent defendant from instituting "any civil, administrative, or legal action or proceeding of any sort, in any forum, arising out of or related to the events, transactions, occurrences, or legal relations at issue" in the NOV. (Am. Compl. at 17.) Defendant moves for dismissal on the basis of lack of jurisdiction, arguing that sovereign immunity has not been waived; the action, if justiciable at all, properly lies within the exclusive jurisdiction of a circuit court; and the agency action is not final and therefore non-reviewable. For the reasons stated below, the Court grants defendant's motion and dismisses plaintiffs' complaint for lack of jurisdiction.
In July 2004, the United States Environmental Protection Agency ("EPA") issued a NOV to plaintiffs alleging that a nitric acid manufacturing facility that plaintiffs owned and operated was violating Part C of the CAA, the Ohio State Implementation Plan ("SIP"), the federal New Source Performance Standards ("NSPS") for nitric acid plants, and sections 502 and 503 of the CAA. (Am.Compl.¶¶ 38, 40, Ex. D.) Plaintiffs claim that this action exceeded defendant's statutory authority because plaintiffs did not violate the statute and regulations and because affirmative defenses prevent enforcement. (Id. ¶¶ 47-73.) While plaintiffs allege that a "decision as to enforcement has been made," they fail to assert that defendant has in fact brought an enforcement action. (Pls.' Opp'n at 2.)
Federal courts are courts of limited jurisdiction that may exercise only those powers authorized by the Constitution and statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). "" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citations omitted). In a suit where the United States or one of its agencies is a defendant, a waiver of sovereign immunity is a prerequisite to subject matter jurisdiction. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Here, the Court is without jurisdiction because plaintiffs have failed to satisfy the requirements for any of three potentially applicable waivers of statutory immunity: (1) the Larson doctrine for ultra vires acts of federal officers; (2) section 702 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701, et seq.; and (3) section 307(b)(1) of the CAA.
In reviewing a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), "the Court must accept the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiffs' favor." Thompson v. Capitol Police Bd., 120 F.Supp.2d 78, 81 (D.D.C.2000). When opposing a Rule 12(b)(1) motion, plaintiffs have the burden of persuasion to establish by a preponderance of the evidence the existence of subject matter jurisdiction. Id. "It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673 (citations omitted).
Plaintiffs attempt to cast their complaint as one that seeks a determination that defendant has acted ultra vires, rather than as a facial attack upon the validity of the NOV issued by the EPA. (See Pls.' Opp'n at 7 () .) Were the Court to blindly accept this characterization, it would have to agree that judicial review would be favored, since "[t]he presumption is particularly strong that Congress intends judicial review of agency action taken in excess of delegated authority." Amgen, Inc. v. Smith, 357 F.3d 103, 111 (D.C.Cir.2004). Consistent with that presumption, sovereign immunity does not bar a suit challenging the actions of a federal officer who has acted in excess of his legal authority. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) () ; see Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1329 (D.C.Cir.1996) ().
However, plaintiffs cannot invoke this narrow exception to the doctrine of sovereign immunity. Although plaintiffs appear to believe that the mere invocation of the words "ultra vires" is sufficient to eviscerate the protections of sovereign immunity, they fail to allege any ultra vires action by defendant. On the contrary, plaintiffs raise a laundry list of defenses to a potential enforcement action. In effect, they contend that defendant has acted ultra vires by issuing a NOV to a party that lacks liability. But as Larson and its progeny make clear: Larson, 337 U.S. at 690, 69 S.Ct. 1457 (emphasis added). See also Amgen, Inc., 357 F.3d at 113 (D.C.Cir.2004) ( ). Defendant is clearly authorized to issue a NOV "[w]henever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit" or various other requirements or prohibitions. 42 U.S.C. § 7413(a)(1), (3). Thus, defendant acts within his statutory power if he finds a violation, and even if this finding is ultimately found to be in error, as plaintiffs allege, it is still within defendant's statutory authority to issue a notice.1
Furthermore, were the Court to embrace plaintiffs' expansive interpretation of ultra vires action, administrative adjudication would effectively be precluded by artful pleading. In this case, Congress has provided enforcement mechanisms for reviewing alleged violations of the CAA. After the EPA issues a NOV, it may issue an order requiring compliance, issue an administrative penalty, bring a civil enforcement action, or request the Attorney General bring a criminal enforcement action. 42 U.S.C. § 7413(a)(1), (3). Each of these enforcement options provides an opportunity for plaintiffs to raise the very defenses they argue here. See 42 U.S.C. § 7413(a)(4) ( ); 42 U.S.C. § 7413(d)(2)(A) ( ); 42 U.S.C. § 7413(b) ( ); 42 U.S.C. § 7413(a)(3)(D) ( ). See also Union Elec. Co. v. EPA, 593 F.2d 299, 304-06 (8th Cir.1979) ( ). If an alleged CAA violator is able to enjoin an agency's nascent enforcement action by merely claiming that the Administrator has acted ultra vires, as plaintiffs attempt to do here, the statutory enforcement mechanisms would be rendered meaningless. This outcome is flatly inconsistent with the notion of administrative adjudication and Congress' intent when enacting section 113 of the CAA.
Thus, plaintiffs cannot merely parrot the phrase ultra vires and thereby benefit from the Larson doctrine and avoid the doctrine of sovereign immunity.
Plaintiffs argue in the alternative that, even if Larson does not apply, statutory immunity has been explicitly waived by § 702 of the APA.2 (See Pls.' Opp'n at 22-23.) Although plaintiffs claim to be adversely affected by agency action and seek relief other than money damages, § 702 does not waive sovereign immunity in this case because another statute grants consent to suit and expressly forbids plaintiffs from bringing this action.
The CAA provides its own waiver of sovereign immunity and procedures for review, and it precludes all other forms of judicial review, stating that "[n]othing in this [Act] shall be construed to authorize judicial review of regulations or orders of the Administrator under this [Act], except as provided in [section...
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