                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

___________________________________
                                      )
SIERRA CLUB,                          )
                                      )              Civil Action No. 01-1537 (PLF)
             Plaintiff,               )              (consolidated with
                                      )              Civil Action No. 01-1548
       v.                             )              Civil Action No. 01-1558
                                      )              Civil Action No. 01-1569
GINA McCARTHY, Administrator,         )              Civil Action No. 01-1578
U.S. Environmental Protection Agency, )              Civil Action No. 01-1582
                                      )              Civil Action No. 01-1597)
                        1
             Defendant.               )
___________________________________ )


                          MEMORANDUM OPINION AND ORDER

               This matter is before the Court on Sierra Club’s motion to enforce this Court’s

Orders of March 31, 2006 and January 20, 2011. 2 Sierra Club alleges that the Environmental

Protection Agency (“EPA”) has failed to promulgate emission standards for certain sources of

three hazardous air pollutants as required under Section 112(c)(6) of the Clean Air Act and this

Court’s Order. Sierra Club asks the Court to declare that EPA has failed to undertake these

nondiscretionary actions, and to establish dates certain for EPA’s proposal and finalization of

new standards for specified sources with respect to the three pollutants.

               EPA opposes the motion, arguing that it has fulfilled its obligations under the Act

and the Order, and that Sierra Club simply is dissatisfied with the substance of the standards that
       1
                Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court
substitutes as defendant the current EPA Administrator, Gina McCarthy, for former
Administrator Lisa P. Jackson.
       2
                The Court’s 2011 Order reiterated the terms of Paragraph 3 of its 2006 Order,
concerning EPA’s obligations under Section 112(c)(6) of the Clean Air Act, but the 2011 Order
extended the deadline for EPA’s compliance with those terms. For simplicity, the Court will
refer singularly to its “Order,” although, more precisely, Sierra Club seeks to enforce both the
2006 and 2011 orders.
EPA already has established. EPA contends that such substantive review lies within the

exclusive jurisdiction of the United States Court of Appeals for the District of Columbia Circuit,

and that this Court therefore lacks subject matter jurisdiction to entertain Sierra Club’s request

for relief. Intervenor Coalition for Clean Air Implementation (“Intervenor”) has filed a response

in further support of EPA’s opposition to Sierra Club’s motion.

                Upon consideration of the parties’ and Intervenor’s arguments, the relevant legal

authorities, and pertinent portions of the record, the Court will grant Sierra Club’s motion in part

and deny it in part. 3


                                        I. BACKGROUND

                On July 16, 2001, Sierra Club filed seven different complaints against EPA under

the citizen suit provision of the Clean Air Act. Sierra Club v. Johnson, 444 F. Supp. 2d 46, 51

(D.D.C. 2006). The complaints each sought relief for EPA’s failure to discharge a different

aspect of its regulatory duties under the Act. Id. The cases were consolidated on June 20, 2002,

and then stayed while the parties sought mediation. Id. The parties engaged in settlement

negotiations until early 2005, when they filed cross-motions for summary judgment. Id. EPA

did not contest liability. Sierra Club v. Jackson, No. 01-1537 (PLF), 2011 WL 181097, at *3

(D.D.C. Jan. 20, 2011). Instead, EPA conceded that it had failed to promulgate standards for

sources of hazardous air pollutants by the required statutory deadline of November 15, 2000, for

Clean Air Act Sections 112(c)(3), 112(k)(3)(b), and 112(c)(6). Id. It is the third of these,
        3
               The papers reviewed in connection with the pending motion include: Sierra
Club’s Memorandum in Support of the Motion to Enforce (“Pl.’s Mot. to Enforce”) [Dkt. No.
158-1]; Sierra Club’s Proposed Order (“Pl.’s Proposed Order”) [Dkt. No. 158-2]; EPA’s
Memorandum in Opposition to Sierra Club’s Motion to Enforce (“Def.’s Opp.”) [Dkt. No. 166];
Intervenor’s Opposition to Sierra Club’s Motion to Enforce (“Intervenor’s Opp.”) [Dkt. No.
165]; and Sierra Club’s Reply in Support of the Motion to Enforce (“Pl.’s Reply”) [Dkt. No.
167].


                                                 2
Section 112(c)(6) — which requires EPA to “assur[e] that sources accounting for not less than

90 per centum of the aggregate emissions of [seven hazardous air pollutants] are subject to

standards under subsection (d)(2) or (d)(4) of [Section 112 of the Act]” — that is the subject of

Sierra Club’s instant motion to enforce. 4

               On March 31, 2006, the Court issued an Order stating in relevant part that, by

December 15, 2007, “EPA shall promulgate emission standards assuring that source categories

accounting for not less than ninety percent of the aggregate emissions of each of the hazardous

air pollutants enumerated in Section 112(c)(6) [of the Act] are subject to emission standards

under Section 112(d)(2) or (d)(4).” Order at 3 (Mar. 31, 2006) [Dkt. No. 80]; see also Sierra

Club v. Johnson, 444 F. Supp. 2d at 59-60 (explaining reasoning underlying the Order). From

2006 to 2010, the Court granted a number of EPA’s motions to extend the deadlines of the

March 31, 2006 Order, all without Sierra Club opposition. Sierra Club v. Jackson, 2011 WL

181097, at *1. In December 2010, EPA sought an extension of the deadline to April 13, 2012,

but Sierra Club opposed that request. Id. In an Order issued on January 20, 2011, the Court

denied EPA’s request for an extension until April 13, 2012, but extended the deadline to

February 21, 2011. Order at 3 (Jan. 20, 2011) [Dkt. No. 149].

               In March of 2011, EPA issued a brief determination notice (“Determination”)

stating that it had fulfilled its duty to promulgate the emission standards required under Clean

Air Act Section 112(c)(6). 76 Fed. Reg. 15308/1 (Mar. 21, 2011). In the Determination, EPA
       4
                The seven hazardous air pollutants — or “HAPs” — specified in Section
112(c)(6) are the following: alkylated lead compounds, polycyclic organic matter,
hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans and
2,3,7,8-tetrachlorodibenzo-p-dioxin. 42 U.S.C § 7412(c)(6). As already noted and as described
infra at page 6, Sierra Club maintains that EPA has yet to set standards for sources accounting
for 90 percent of the aggregate emissions of three of these pollutants. The Court also notes that
the references in Section 112(c)(6) to standards under subsections 112(d)(2) or 112(d)(4)
implicate further requirements as to the stringency of standards for the seven enumerated HAPs.
See generally Desert Citizens Against Pollution v. EPA, 699 F.3d 524, 525-28 (D.C. Cir. 2012).

                                                 3
provided a link to a docket it had established, which contains a technical memorandum. See id.

(referencing Docket ID No. EPA-HQ-OAR-2004-0505 at www.regulations.gov). The

memorandum describes the actions the agency has taken that, in its view, satisfy in full the

requirements placed upon it by Section 112(c)(6). Id. (citing “Emission Standards for Meeting

the 90 Percent Requirement Under Section 112(c)(6) of the Clean Air Act,” EPA-HQ-OAR-

2004-0505-0006 (Feb. 18, 2011) (“Technical Memo”) [Dkt. No. 166-1]). The Technical Memo

also features a table listing a number of final rules — issued as long ago as the early 1990s, and

as recently as 2011 — which, according to EPA, operate in concert to fulfill its statutory duty to

assure that sources of the seven HAPs specified in Section 112(c)(6) are subject to emission

standards with respect to those pollutants. See Technical Memo at Appendix II; see also Def.’s

Opp. at 7-8, 11 (discussing the Technical Memo). As the D.C. Circuit has explained, some of

these rules cited by EPA were promulgated “in an express effort to satisfy [EPA’s] § 112(c)(6)

obligations,” while others were issued “with no reference to § 112(c)(6).” Sierra Club v. EPA,

699 F.3d 530, 532 (D.C. Cir. 2012).

               Sierra Club challenged EPA’s Determination in the court of appeals, arguing first

that the substance of the Determination was arbitrary and capricious, and second that the

Determination was procedurally invalid for failure to comply with notice and comment

requirements. Sierra Club v. EPA, 699 F.3d at 532. The Circuit held that the Determination

constituted a legislative rulemaking, which requires notice and comment. Id. at 534-35. Because

EPA did not adhere to the notice and comment procedural requirements, the court vacated the

Determination and remanded to EPA to follow those procedures. Id. at 531, 535. The panel

emphasized, however, that it did “not reach Sierra Club’s arguments on the substance of the

Determination or express the slightest opinion as to their merit.” Id. at 534. Subsequently, EPA



                                                 4
appears to have abandoned any intention to reissue its Determination. See Pl.’s Mot. to Enforce

at 12 (stating that counsel for EPA informed Sierra Club by telephone on April 17, 2013, that the

agency does not intend to undertake any further action with respect to Section 112(c)(6)); see

generally Def.’s Opp. (declining to refute Sierra Club’s assertion on this point). As a result,

Sierra Club has filed the instant motion seeking to enforce this Court’s Order, which, it contends,

remains unfulfilled with respect to three of the seven HAPs enumerated in Section 112(c)(6).


                                        II. DISCUSSION

                            A. Legal Standard on a Motion to Enforce

               “District courts have the authority to enforce the terms of their mandates.”

Flaherty v. Pritzker, No. 11-0660 (GK), 2014 WL 642658, at *2 (D.D.C. Feb. 19, 2014). “The

exercise of this authority is ‘particularly appropriate’ when a case returns to a court on a motion

to enforce the terms of its mandate to an administrative agency.” Id. (quoting Int’l Ladies’

Garment Workers’ Union v. Donovan, 733 F.2d 920, 922 (D.C. Cir. 1984)). The Court should

grant a motion to enforce if a “prevailing plaintiff demonstrates that a defendant has not

complied with a judgment entered against it.” Heartland Hosp. v. Thompson, 328 F. Supp. 2d 8,

11 (D.D.C. 2004). But if a plaintiff “has received all relief required by that prior judgment, the

motion to enforce [should be] denied.” Id. Included within “a court’s power to administer its

decrees is the power to construe and interpret the language of the judgment.” Id. at 11-12 (citing

SEC v. Hermil, Inc., 838 F.2d 1151, 1153 (11th Cir. 1988)).


                                            B. Analysis

                “[T]he Clean Air Act contains an ‘unusual, bifurcated jurisdictional scheme’ that

divides jurisdiction between the federal district and circuit courts.” Sierra Club v. Jackson, 813



                                                 5
F. Supp. 2d 149, 156 (D.D.C. 2011) (quoting Sierra Club v. Thomas, 828 F.2d 783, 794 (D.C.

Cir. 1987)). Under the Act, a person may bring suit in district court against the EPA

Administrator for an alleged failure to perform a nondiscretionary act or duty, and the district

court has jurisdiction “to order the Administrator to perform such act or duty,” as well as to

“compel . . . agency action unreasonably delayed.” 42 U.S.C. § 7604(a). By contrast, “judicial

review of final action by the EPA Administrator rests exclusively in the appellate courts.” Envt’l

Def. v. Leavitt, 329 F. Supp. 2d 55, 63 (D.D.C. 2004) (citing 42 U.S.C. § 7607(b)(1)). Thus,

whereas the substance of agency action already undertaken is reviewable only by an appropriate

court of appeals, EPA’s failure to take nondiscretionary action is a matter within the purview of a

district court. And, “[a]s a logical matter, [the Clean Air Act’s] grant of jurisdiction to the

District Courts to order EPA to perform a nondiscretionary duty must presuppose the District

Courts’ jurisdiction to determine whether such duties have been performed in the first place.”

Sierra Club v. Whitman, No. 00-2206 (JMF), 2002 WL 393069, at *4 (D.D.C. Mar. 11, 2002),

Report and Recommendation adopted in relevant part in Sierra Club v. Whitman, No. 00-2206

(CKK), Memo. Op. at 5-8 (D.D.C. July 10, 2002).

               Sierra Club casts its motion in terms of a purported failure to act on EPA’s part,

arguing that the agency has not set any emission standards for one Section 112(c)(6) pollutant,

hexachlorobenzene (“HCB”), and that it has set standards for two others, polychlorinated

biphenyls (“PCBs”) and polycyclic organic matter (“POM”), for sources that do not account for

ninety percent of the aggregate emissions of these pollutants. Pl.’s Mot. to Enforce at 2. EPA

counters that it already has satisfied its obligations under Section 112(c)(6) and this Court’s

Order. Def.’s Opp. at 10-13 (citing Technical Memo and declarations of EPA official). EPA

contends that Sierra Club simply is dissatisfied with the substance of the standards that EPA has



                                                  6
issued, and that Sierra Club asks the Court to intrude into the exclusive jurisdiction of the court

of appeals. Id. at 14-17. Intervenor echoes this argument, distinguishing “district court review

of EPA’s failure to act [from] review of EPA’s failure to act appropriately,” and accusing Sierra

Club of seeking the latter, which is reserved to the D.C. Circuit. Intervenor Opp. at 7.

               This Court, in its 2006 Order and Opinion, acknowledged the limits of its

jurisdiction in the context of Sierra Club’s challenge. While the Court clearly had — and has —

the authority to order EPA to promulgate emission standards assuring compliance with the 90

percent emission requirements of Section 112(c)(6) by a date certain, “it is beyond this Court’s

authority to tell EPA how (as opposed to when) it must fulfill its duties under Section 112(c)(6).”

Sierra Club v. Johnson, 444 F. Supp. 2d at 59-60; see also Sierra Club v. Jackson, 2011 WL

181097, at *7 (quoting Sierra Club v. Browner, 130 F. Supp. 2d 78, 90 (D.D.C. 2001)).

               But as the D.C. Circuit emphasized in its recent decision, EPA had “assured [this

Court] that [EPA’s issuance of the Determination], like any other final agency action, would be

subject to review in [the court of appeals].” Sierra Club v. EPA, 699 F.3d at 532. This Court’s

2006 Order was premised on that assurance. See Sierra Club v. Johnson, 444 F. Supp. 2d at

59-60. As the court of appeals now has explained, however, EPA’s issuance of the

Determination with no opportunity for notice and comment failed to honor the terms of its

representations to this Court, upon which the Order was based. Sierra Club v. EPA, 699 F.3d at

534-35. The court therefore vacated the Determination and stated that “[its] vacatur will require

EPA, consistent with the district court’s deadline order, to entertain and respond to [Sierra

Club’s] claims about the necessary scope and stringency of the standards.” Id. at 533 (emphases

added). In other words, because this Court’s Order remains unfulfilled, EPA therefore must

initiate a process of notice and comment rulemaking before it either reissues its Determination or



                                                  7
takes other appropriate action after considering the comments submitted. 5 And it falls to this

Court — which still holds jurisdiction to compel EPA to act — to enforce the terms of this

mandate.

               EPA maintains that the terms of this Court’s Order — that the agency “shall

promulgate emission standards” assuring regulation of 90 percent of the aggregate emissions of

Section 112(c)(6) HAPs — have been satisfied by EPA’s issuance of numerous rules over the

past two decades, some specifically linked to the Section 112(c)(6) pollutants and others silent as

to them, but all of which “effectively (even if indirectly) control the relevant [HAPs].” Def.’s

Opp. at 16; see also Technical Memo. EPA further contends that this Court in 2006 did not

actually order the agency to issue the Determination notice; in EPA’s view, it “voluntarily

published” the Determination. Def.’s Opp. at 6-7. As the decision of the court of appeals

demonstrates, however, EPA’s position does not represent a fair reading of this Court’s Order

and Opinion. See Sierra Club v. EPA, 699 F.3d at 534 (noting that “in the deadline suit before

the district court, EPA based its successful response on the premise that [the] Determination

would both issue and be a final agency action reviewable in [the D.C. Circuit]” (emphasis

added)). In order for the court of appeals to review the substantive validity of EPA’s

Determination — which is not a simple announcement, but is, rather, an action from which

“legal consequences will flow,” id. — the Determination must be put forth in a manner “that will

render EPA’s legal and technical decisions more transparent and thereby facilitate substantive

review.” Id.; see also id. at 535 (“Because the Determination manifests a new yet final agency

position on [EPA’s] compliance with § 112(c)(6), it is a legislative rulemaking subject to

       5
               As Sierra Club correctly points out, see Pl.’s Reply at 12, the court of appeals’
conclusion on this point was essential to its holding that the asserted procedural injury was
redressable, thus giving Sierra Club standing to bring its petition for review. See Sierra Club v.
EPA, 699 F.3d at 533.

                                                 8
[5 U.S.C.] § 553’s notice-and-comment requirements.”); Int’l Union, United Mine Workers of

America v. Mine Safety & Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005) (describing the

purposes of notice and comment, which include providing “affected parties an opportunity to

develop evidence in the record to support their objections to the rule and thereby enhance the

quality of judicial review”).

               The Court therefore concludes that its Order remains unsatisfied. That Order

obligated EPA to take action by a date certain to ensure its compliance with Section 112(c)(6), in

a manner reviewable by the court of appeals. EPA elected to do so by articulating its substantive

legal and technical decisions in the Determination. But as the D.C. Circuit has held, EPA’s

issuance of that Determination was procedurally invalid. Sierra Club v. EPA, 699 F.3d at

534-35. In accordance with the court of appeals’ vacatur of EPA’s Determination and its

“remand to EPA to fulfill [] notice-and-comment requirements,” id. at 535 — as well as the

Circuit’s view as to the continuing effect of this Court’s deadline Order — the Court directs EPA

to initiate a process of notice and comment rulemaking before it reissues or, after consideration

of the comments submitted, reconsiders or modifies its Determination. Any such final action

must include a statement explaining its basis, and EPA also must respond to the comments that it

receives. See id. at 533 (stating that EPA must “entertain and respond” to Sierra Club’s claims

concerning the alleged inadequacy of the regulation of Section 112(c)(6) HAPs); see also

Louisiana Federal Land Bank Ass’n, FLCA v. Farm Credit Admin., 336 F.3d 1075, 1079 (D.C.

Cir. 2003) (noting that “an agency must respond to those ‘comments which, if true, . . . would

require a change in [the] proposed rule’” (quoting American Mining Congress v. EPA, 907 F.2d

1179, 1188 (D.C. Cir. 1990)) (omission and alteration in original)). 6

       6
                The Court recognizes that this directive does not afford Sierra Club the full relief
that it seeks. See Pl.’s Proposed Order. But this Court previously declined to craft a remedy that

                                                 9
               Because neither party has yet had the opportunity to express a view on an

appropriate schedule for the notice and comment process that EPA must initiate, the Court will

further direct the parties to meet and confer in an effort to agree upon such a schedule. In the

event that EPA and Sierra Club are unable to reach an agreement, the Court will set a schedule

after receiving the views of the parties.


                                        III. CONCLUSION

               For the foregoing reasons, it is hereby

               ORDERED that Sierra Club’s Motion to Enforce [Dkt. No. 158] is GRANTED

IN PART and DENIED IN PART; it is

               DECLARED that EPA has failed to comply with this Court’s 2006 Order

[Dkt. No. 80], as amended by this Court’s 2011 Order [Dkt. No. 149]; it is

               FURTHER ORDERED that EPA shall initiate a process of notice and comment

rulemaking before its reissues, reconsiders, or modifies its Determination; it is

               FURTHER ORDERED that the parties shall meet and confer in an effort to agree

upon a schedule for EPA’s initiation and completion of this process; and it is

               FURTHER ORDERED that on or before August 15, 2014, the parties shall file a

joint status report informing the Court of any such agreement, or, if no agreement is reached,

proposing a schedule for briefing on the question of an appropriate timeline for EPA’s actions.

               SO ORDERED.



                                                      /s/__________________________
                                                      PAUL L. FRIEDMAN
DATE: July 25, 2014                                   United States District Judge

would dictate to EPA the precise manner in which to satisfy its duties under Section 112(c)(6),
see Sierra Club v. Johnson, 444 F. Supp. 2d at 59-60, and it again declines to do so.

                                                 10
