Zen-Noh Grain Corp. v. Jackson
| Decision Date | 30 April 2013 |
| Docket Number | Civil Action No. 12–2535. |
| Parties | ZEN–NOH GRAIN CORPORATION v. Lisa JACKSON, Administrator, United States Environmental Protection Agency. |
| Court | U.S. District Court — Eastern District of Louisiana |
OPINION TEXT STARTS HERE
John Michael Bowman, Paul N. Vance, Baldwin, Haspel, Burke & Mayer, LLC, New Orleans, LA, for Zen–Noh Grain Corporation.
ORDER AND REASONS
Defendant Lisa Jackson, administrator of the Environmental Protection Agency (EPA), moves to dismiss Zen–Noh's claim for lack of subject matter jurisdiction. For the following reasons, the EPA's motion is GRANTED.
The Louisiana Department of Environmental Quality (“LDEQ”) issued permits for the Nucor facility in Convent, Louisiana to manufacture pig iron and direct reduced iron. On June 25, 2010, Zen–Noh petitioned the EPA to object to the pig iron process permit. LDEQ modified both permits for the Nucor facility before the EPA objected, but Zen–Noh again petitioned the EPA to object to the new permits. The EPA granted Zen–Noh's petition on March 23, 2012, and objected to the permits. On June 21, 2012, the LDEQ responded to the EPA's objection, but has not yet revised its permits. Nor has the EPA terminated, modified, or revoked the permits.
Zen–Noh brought this suit against the EPA charging that it has failed to perform nondiscretionary duties under 42 U.S.C. § 7661d(b)(2) and (c) by failing to terminate, modify, or revoke Nucor's permits. Zen–Noh sues under section 304 of the CAA, which allows any person to bring an action against the EPA Administrator “where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator,” and provides “district courts [with] jurisdiction ... to order the Administrator to perform such act or duty.” 42 U.S.C. § 7604(a). The EPA contends that its obligations under 42 U.S.C. § 7661d(b)(2) and (c) are discretionary, and that this Court lacks subject matter jurisdiction over this case.
The Court must first determine whether the EPA's motion to dismiss is governed by Rule 12(b)(1) or Rule 12(b)(6). Federal Rule of Civil Procedure 12(b)(1) permits dismissal for lack of jurisdiction over the subject matter of the claim. 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).
When a defendant attacks the complaint because it fails to state a legally cognizable claim, Rule 12(b)(6) provides the appropriate challenge. 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, 129 S.Ct. 1937, 1960, 173 L.Ed.2d 868 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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.” Id. at 1949. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of 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, 129 S.Ct. at 1949.
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, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963). Section 7604(a)(2) waives sovereign immunity for claims “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 with the Administrator.” 42 U.S.C. § 7604(a)(2). The EPA argues that because § 7661d(b)(2) and (c) are discretionary duties, Zen–Noh's claim falls outside of the waiver of sovereign immunity outlined in § 7604(a)(2). Accordingly, it argues that this Court lacks subject matter jurisdiction. Zen–Noh argues that the EPA's motion goes to the merits of its claim because:
Where the defendant's challenge to the court's jurisdiction is also a challenge to the existence of a federal cause of action, the proper course of action for the districtcourt ... is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case.
Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir.1981); see also Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
The Fifth Circuit held that “[a] district court has jurisdiction under [section 7604(a)(2) ] only if the plaintiff has alleged a duty which is not discretionary.” See Seabrook v. Costle, 659 F.2d 1371, 1372–75 (5th Cir. Unit A 1981); see also CleanCOALition v. TXU Power, 536 F.3d 469, 473–74 (5th Cir.2008) (). Additionally, its decisions interpreting challenges to nondiscretionary duty claims under the APA analyze them under Rule 12(b)(1). See Watson v. Chief Admin. Law Judge, ––– Fed.Appx. ––––, ––––, No. 10–40411, 2010 WL 4033991, at *2 (5th Cir. Oct. 15, 2010)(per curiam) . Accordingly, this Court will analyze the EPA's motion under Rule 12(b)(1).1
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 basis of available information. Id. § 7407(d). The facility at issue in this case is 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 (“LDEQ”).
While the state and local permitting authorities issue permits, the EPA has the opportunity to review proposed permits and object to them if “any permit contains provisions 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.
There are two settings in which the EPA objection process may arise. The first is if the EPA objects before the permitting authority issues a permit. In this setting, the permitting authority may not issue the permit before revising it to meet the objections. Id. § 7661d(b)(3). Section 505(c) provides that the permitting authority has 90 days to submit the revised permit. Id. § 7661d(c). If it does not, the EPA “shall issue or deny the permit in accordance with [Title V].” Id.
The second setting, and the one at issue here, involves cases in which the permitting authority has already issued a permit before it receives an objection from the EPA. In this setting, section 7661d(b)(3) provides:
If the permitting authority has issued a permit prior to receipt of an objection by the Administrator under paragraph (2) of this subsection, the...
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Nw. Envtl. Advocates v. U.S. Envtl. Prot. Agency
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