Sierra Club v. Wheeler

• Decision Date: 17 April 2020
• Docket Number: No. 18-5328,18-5328
• Citation: 956 F.3d 612
• Parties: SIERRA CLUB, Appellant v. Andrew WHEELER, Administrator, U.S. Environmental Protection Agency, in his official capacity, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

956 F.3d 612

SIERRA CLUB, Appellant

v.Andrew WHEELER, Administrator, U.S. Environmental Protection Agency, in his official capacity, Appellee

No. 18-5328

United States Court of Appeals, District of Columbia Circuit.

Argued December 3, 2019

Decided April 17, 2020

Gordon E. Sommers argued the cause for appellant. With him on the briefs was James S. Pew.

Robert J. Lundman, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, and James A. Maysonett, Attorney.

Before: Henderson, Wilkins and Rao, Circuit Judges.

Concurring opinion filed by Circuit Judge Wilkins.

Karen LeCraft Henderson, Circuit Judge:

The Clean Air Act (CAA) directs the Environmental Protection Agency (EPA) to periodically issue emission guidelines for solid waste incinerators. When the EPA issues such guidelines, States have one year to submit to the EPA Administrator (Administrator) a plan to ensure incinerators within their jurisdictions comply with the guidelines. But the CAA’s federal scheme cannot be undone by a noncompliant State and, should a State fail to submit a plan within two years of the guidelines’ issuance, the CAA directs the Administrator to impose a federal plan in that State.

The EPA issued guidelines for two categories of solid waste incinerator well over two years ago and the Administrator has not imposed a federal plan on noncompliant States. Sierra Club filed a complaint in district court under the CAA’s citizen-suit provision, seeking to compel the Administrator’s action. The district court determined that the Administrator does not have a nondiscretionary duty to impose a federal plan on a noncompliant State and dismissed the claim for lack of subject matter jurisdiction. We affirm for the reasons set forth infra .

I

Toxic pollutants discharged by solid waste incinerators harm the environment and threaten human health. See Davis Cty. Solid Waste Mgmt. v. E.P.A. , 101 F.3d 1395, 1397 (D.C. Cir. 1996) ("Combustion ... results in the emission of various air pollutants, such as acid gases, organics, metals, nitrogen oxides and ash, some of which are considered to be carcinogens or to have other adverse effects when inhaled."). Section 129 of the Clean Air Act (CAA), 42 U.S.C. § 7429, therefore requires the Administrator to "establish performance standards" for air pollutants discharged by different categories of solid waste incinerators. CAA § 129(a)(1)(A). At issue here are commercial or industrial solid waste incinerators (CISWI), id. § 129(a)(1)(D), and incinerators falling within the statute’s catch-all for "other" categories of solid waste (OSWI), id. § 129(a)(1)(E). The EPA last revised its CISWI emission standards in 2013 in an action aimed to eliminate 34,771 tons of pollution annually, 78 Fed. Reg. 9112, 9131 (Feb. 7, 2013), and OSWI emission standards were last updated in 2005, 70 Fed. Reg. 74,870 (Dec. 16, 2005).

To implement these standards, the CAA distinguishes between "new" and "existing" sources. Compare CAA § 129(a), with id. § 129(b). For new incinerators, implementation of the performance standards is straightforward—any unit built or modified after the standards are promulgated must comply with them. Id. § 129(a)(2). More complicated is bringing existing incinerators—i.e., the large majority of regulated units neither constructed nor modified after the standards took effect, id. § 129(g)(4)—into compliance with new emission standards. See Federal Plan Requirements for Other Solid Waste Incineration Units Constructed on or Before December 9, 2004, 71 Fed. Reg. 75,816 (proposed Dec. 18, 2006) ; Federal Plan Requirements for Commercial and Industrial Solid Waste Incineration Units, 82 Fed. Reg. 3554 (proposed Jan. 11, 2017).

Initially, the CAA requires the Administrator to, inter alia , establish emission guidelines for existing incinerators. CAA § 129(b)(1). The burden then shifts to the States, which must submit to the Administrator "a plan to implement and enforce the guidelines with respect to" existing incinerators "[n]ot later that [one] year after" guidelines are promulgated. Id. § 129(b)(2). A State plan must be "at least as protective as the guidelines" and must ensure that all existing incinerators in the State comply with the guidelines "not later than [three] years after the State plan is approved by the Administrator but not later than [five] years after the guidelines were promulgated." Id. "The Administrator shall approve or disapprove any State plan within 180 days of the submission, and if a plan is disapproved, the Administrator shall state the reasons for disapproval in writing." Id. Thus, once the EPA issues guidelines: 1) each State has one year in which to submit an implementation plan for the Administrator’s approval; 2) a State’s plan must be at least as protective as the guidelines; 3) the Administrator has 180 days to approve the State plan; and 4) the State plan must be tailored to meet a specific timeline.

This case involves the Administrator’s duties in the event a State fails to comply with § 129(b)(2). If this happens, the Administrator must "develop, implement and enforce" a plan to bring existing units into compliance with the guidelines. Id. § 129(b)(3). The Administrator’s "federal plan" often mirrors the guidelines, i.e., a State that fails to create its own plan usually ends up with the EPA’s guidelines imposed on it. See, e.g. , 82 Fed. Reg. at 3559 ("The emissions limits in this proposed CISWI Federal Plan are the same as those contained in the final CISWI [emission guidelines]."); 71 Fed. Reg. at 75,820 ("The emission limitations in this proposed OSWI Federal plan are the same as those contained in the [emission guidelines].").

To date, the Administrator has yet to impose a federal plan upon any State that failed to submit an implementation plan following issuance of either the 2013 CISWI guidelines or the 2005 OSWI guidelines. In response, Sierra Club filed a complaint in district court under the CAA’s citizen-suit provision, CAA § 304, 42 U.S.C. § 7604, "to compel the Administrator ... to protect public health and the environment from the hazardous emissions of" CISWI and OSWI. Compl. for Declaratory and Injunctive Relief at ¶ 1, Sierra Club v. McCarthy , No. 16-2461 (D.D.C. Dec. 16, 2016), ECF No. 1. Sierra Club’s complaint suggests in passing that the Administrative Procedure Act (APA) also supports its claim. See id. at ¶ 3. Before the district court and now on appeal, Sierra Club has increasingly relied on this argument, see Appellant’s Br. 1, 23, 32, and we therefore reach it in Section III infra . The district court "dismiss[ed] for lack of subject matter jurisdiction Sierra Club’s claims that [§ 129(b)(3) ] imposes nondiscretionary duties on EPA to ‘develop, implement and enforce’ federal implementation plans for the 2013 CISWI Standards and the 2005 OSWI Standards" because the claims fell outside an applicable waiver of sovereign immunity. Sierra Club v. Wheeler , 330 F. Supp. 3d 407, 423 (D.D.C. 2018).¹ Sierra Club timely appealed to us.

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Because sovereign immunity is "jurisdictional in nature," we must assure ourselves that Sierra Club's claims fall within a valid waiver of sovereign immunity before allowing the suit to proceed. Id. We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s dismissal for lack of subject matter jurisdiction de novo . See Am. Hosp. Ass’n v. Azar , 895 F.3d 822, 825 (D.C. Cir. 2018).

II

The CAA’s citizen-suit provision, CAA § 304, "empower[s]" "private citizens ... to enforce emission standards by filing suit in district court." U.S. Sugar Corp. v. EPA , 830 F.3d 579, 609 (D.C. Cir. 2016). Sierra Club’s suit was brought under § 304(a)(2), Compl. ¶ 64, which is a conditional waiver of sovereign immunity.² It gives the district court jurisdiction over a claim "against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary." CAA § 304(a)(2). A duty is nondiscretionary under the CAA if it is "clear-cut" and requires the Administrator to act by a "date-certain deadline." Sierra Club v. Thomas , 828 F.2d 783, 791 (D.C. Cir. 1987). This interpretation of § 304(a)(2) is consistent with the requirement that "a waiver of sovereign immunity must be ‘unequivocally expressed’ in the statutory text" and ambiguities "construed in favor of immunity." F.A.A. v. Cooper , 566 U.S. 284, 290, 132 S.Ct. 1441, 182 L.Ed.2d 497 (2012) (citations omitted). The district court held that the Administrator’s duty to act under § 129(b)(3) once a state fails to submit a plan does not impose a date-certain deadline. Accordingly, it concluded that it lacked subject matter jurisdiction under the CAA because the duty in question failed to qualify for § 304's conditional waiver of sovereign immunity. Sierra Club , 330 F. Supp. 3d at 421. We agree.

Because this case is one of statutory interpretation, "[a]s always, our inquiry starts from ‘the fundamental canon that statutory interpretation begins with the language of the statute itself.’ " Butler v. West , 164 F.3d 634, 639 (D.C. Cir. 1999) (quoting Pa. Dep’t of Pub. Welfare v. Davenport , 495 U.S. 552, 557–58, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990) ). We must decide whether the Administrator’s duty to "develop, implement and enforce a plan for existing solid waste incineration units ... located in any State which has not submitted an approvable plan under this subsection with respect to units in such category within [two] years after the date on which the Administrator promulgated the relevant guidelines," CAA § 129(b)(3), is nondiscretionary under Thomas . The answer hinges on the clause "within [two]...