                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

                                         )
THE HUMANE SOCIETY OF THE                )
UNITED STATES, et al.,                   )
                                         )
            Plaintiffs,                  )
                                         )
            v.                           )                Civil Action No. 15-cv-00141 (TSC)
                                         )
GINA McCARTHY, in her official           )
Capacity as Administrator, United States )
Environmental Protection Agency, and )
UNITED STATES ENVIRONMENTAL )
PROTECTION AGENCY,                       )
                                         )
            Defendants.                  )
                                         )

                                 MEMORANDUM OPINION

       Plaintiffs the Humane Society of the United States, Association of Irritated Residents,

Environmental Integrity Project, Friends of the Earth, and Sierra Club have brought this action

against the Environmental Protection Agency (“EPA”) for declaratory and injunctive relief

pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. Plaintiffs seek to

compel the EPA to provide a response to their 2009 petition for rulemaking, which requests that

the EPA regulate Concentrated Animal Feeding Operations (“CAFOs”) as a source of air

pollution under the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq. Plaintiffs allege that the

EPA’s failure to respond to their petition constitutes a violation of the APA, 5 U.S.C. § 555.

       Defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6), arguing that the court lacks subject matter jurisdiction because Plaintiffs failed to

provide notice, as required under Section 304(a) of the Clean Air Act, before filing this lawsuit.




                                                  1
For the reasons set forth below, the court will GRANT Defendants’ motion to dismiss.1

         I.       BACKGROUND

         The CAA requires the EPA “from time to time” to publish and revise a list of categories

of “stationary sources” it will regulate. 42 U.S.C. § 7411(b)(1)(A). “The term ‘stationary

source’ means any building, structure, facility, or installation which emits or may emit any air

pollutant.” 42 U.S.C. § 7411(a)(3); see 42 U.S.C. § 7602(z).

         CAFOs are industrial animal production facilities used to house and raise livestock until

they are sent to slaughter. (Compl. ¶ 2). Plaintiffs want the EPA to list CAFOs as a “stationary

source” under the CAA, and to promulgate certain standards and regulations relating to them.

(Compl. ¶ 6). To this end, in 2009 Plaintiffs filed a petition for rulemaking with the EPA

pursuant to the APA, which provides that agencies must “give an interested person the right to

petition for the issuance, amendment or repeal of a rule.” 5 U.S.C. § 553(e). The APA requires

that, when a rulemaking petition is filed, “[w]ith due regard for the convenience and necessity of

the parties or their representatives . . . each agency shall proceed to conclude a matter presented

to it.” 5 U.S.C. § 555(b). If, however, an agency fails to respond to the petitioner “within a

reasonable time,” the petitioner may attempt to compel a response by seeking judicial review. 5

U.S.C §§ 555(b), 555(e), 551(13); 5 U.S.C. §§ 702, 706.

         After initial communications between the parties, on November 1, 2013, the EPA

informed Plaintiffs that it “did not intend to substantively address the Petition until after it

completed an administrative settlement agreement that it entered into with the CAFO industry.”

(Compl. ¶ 82). Plaintiffs filed this suit in January 2015, more than five years after filing the

2009 petition.


1
 Because the court dismisses Plaintiffs’ suit under Fed. R. Civ. P. 12(b)(1), the court does not reach Defendants’
12(b)(6) argument.

                                                          2
         It is undisputed that the EPA’s obligations with respect to revising CAFO standards stem

from the CAA, that the duty to rule on Plaintiffs’ petition derives from the APA, and that the

agency has not responded to the petition for rulemaking. However, the parties disagree as to

whether the court has jurisdiction to hear this case under the APA or the CAA. If the court’s

jurisdiction arises under the APA, then this action may go forward. If, however, jurisdiction

arises under the CAA, then this action cannot be maintained because under the CAA’s Citizen

Suit Provision, 42 U.S.C. § 7604(a)(2), EPA’s waiver of sovereign immunity is conditioned on

the requirement that prospective plaintiffs provide EPA with 180 days’ notice before filing suit,

and Plaintiffs did not provide such notice. 2

         II.      LEGAL STANDARD

         Federal courts are courts of limited jurisdiction and, as such, a district court “may not

exercise jurisdiction absent a statutory basis.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545

U.S. 546, 552 (2005); see also Fed. R. Civ. P. 12 (“If the court determines at any time that it

lacks subject-matter jurisdiction, the court must dismiss the action.”). “Limits on subject-matter

jurisdiction ‘keep the federal courts within the bounds the Constitution and Congress have

prescribed,’ and those limits ‘must be policed by the courts on their own initiative.’” Watts v.

SEC, 482 F.3d 501, 505 (D.C. Cir. 2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S.

574, 583 (1999)). Such limits are especially important in the agency review context, where

“Congress is free to choose the court in which judicial review of agency decisions may occur.”

Am. Petroleum Inst. v. SEC, 714 F.3d 1329, 1332 (D.C. Cir. 2013) (internal quotation marks



2
 Plaintiffs filed a similar action in this District in 2015 challenging EPA’s delay in responding to a 2011 petition
concerning ammonia gas pollution. That case was dismissed on the same grounds as this case. See Envtl. Integrity
Project v. United States Envtl. Prot. Agency, No. 15-0139 (ABJ), --- F. Supp. 3d ---, 2015 WL 7737307 (D.D.C.
Dec. 1, 2015).


                                                          3
omitted). The law presumes that “a cause lies outside [the court’s] limited jurisdiction” unless

the party asserting jurisdiction establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994). Thus, the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992);

Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002).

       In evaluating a motion to dismiss under Rule 12(b)(1), the court must “assume the truth

of all material factual allegations in the complaint and ‘construe the complaint liberally, granting

plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat'l Ins.

Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970,

972 (D.C. Cir. 2005)). Nevertheless, “‘the court need not accept factual inferences drawn by

plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the

Court accept plaintiff's legal conclusions.’” Disner v. United States, 888 F. Supp. 2d 83, 87

(D.D.C. 2012) (quoting Speelman v. United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006)).

Further, under Rule 12(b)(1), the court “is not limited to the allegations of the complaint,” Hohri

v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64

(1987), and “a court may consider such materials outside the pleadings as it deems appropriate to

resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of

Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat'l Acad. of Scis.,

974 F.2d 192, 197 (D.C. Cir. 1992)).

       III.    ANALYSIS

       The question of whether this court has jurisdiction in this matter turns on whether the

government has waived immunity to suit, because “[s]overeign immunity is jurisdictional in

nature.” FDIC v. Meyer, 510 U.S. 471, 475, (1994); see also United States v. Mitchell, 463 U.S.



                                                  4
206, 212 (1983) (“It is axiomatic that the United States may not be sued without its consent and

that the existence of consent is a prerequisite for jurisdiction.”).

        As a general matter, a suit challenging an agency action may be brought in federal court

under the APA, which “provides a cause of action for the plaintiff and a waiver of sovereign

immunity by the government.” Envt’l. Integrity Project v. United States Envt’l. Prot. Agency,

No. 15-0139 (ABJ), 2015 WL 7737307, at *3 (D.D.C. Dec. 1, 2015) (internal citation omitted).

However, this waiver of immunity is limited—it applies only to an “[a]gency action made

reviewable by statute and final agency action for which there is no other adequate remedy in a

court.” 5 U.S.C. § 704; see also Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v.

Patchak, 132 S. Ct. 2199, 2204 (2012) (“[T]he APA’s waiver of immunity comes with an

important carve-out: The waiver does not apply ‘if any other statute that grants consent to suit

expressly or impliedly forbids the relief which is sought’ by the plaintiff.”).

        Defendants argue that the CAA provides an adequate remedy because its Citizen Suit

Provision, 42 U.S.C. § 7604, gives individuals the right to sue the Administrator of the EPA “to

compel . . . agency action unreasonably delayed,” which is the gravamen of Plaintiffs’ case.

(Def’s Mot. to Dismiss at 12). However, the Citizen Suit provision requires that a plaintiff

provide the EPA with notice 180 days before commencing an unreasonable delay suit. (Id.); see

also 42 U.S.C. § 7604(a). Defendants argue that because Plaintiffs did not provide the mandated

notice, the United States never waived immunity to suit, and therefore the court lacks

jurisdiction.

        Plaintiffs assert that they do not have an adequate remedy under the CAA. They contend

that the EPA’s duty to revise the list of stationary sources under Section 111 of the CAA is

discretionary, and the Citizen Suit Provision only grants district courts subject matter jurisdiction



                                                   5
to hear suits where there is an alleged failure to perform a nondiscretionary duty or act.

       Prior to 1990, the Citizen Suit Provision stated, in pertinent part:

                (a) Authority to bring civil action; jurisdiction
               Except as provided in subsection (b) of this section, any person may
               commence a civil action on his own behalf –
                                                         ***
                       (2) 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[.]
                                                         ***
               The district courts shall have jurisdiction, without regard to the amount in
               controversy or the citizenship of the parties . . . to order the Administrator
               to perform such act or duty, as the case may be.

42 U.S.C. § 7604(a) (1988).

       In 1987, the D.C. Circuit held that the Citizen Suit Provision gave it exclusive

jurisdiction over suits involving discretionary agency actions, while district courts had

jurisdiction over actions alleging violations of nondiscretionary duties imposed by the Clean Air

Act. Sierra Club v. Thomas, 828 F.2d 783, 791-92 (D.C. Cir. 1987). The Thomas Court defined

nondiscretionary functions as those where it was “categorically mandat[ed] that all specified

action be taken by a date-certain deadline.” Id. at 791(emphasis in original) (internal quotation

marks omitted). Applying this definition, the Court found that the district court could not

properly exercise jurisdiction over the plaintiff’s claim that the EPA had unreasonably delayed

concluding a rulemaking concerning strip mine emissions, because the Clean Air Act did not

require the EPA to conclude the rulemaking by a specific deadline. Id. at 791-792. Thus, if the

current dispute had taken place pre-1990, this court would lack subject matter jurisdiction

because CAA Section 111 gives no specific deadline for when the EPA must conclude

rulemakings regarding categories of stationary sources. See 42 U.S.C. § 7411(1)(A).

       In 1990, three years after Thomas was decided, Congress added the following language to



                                                 6
the Citizen Suit Provision:

        The district courts of the United States shall have jurisdiction to compel (consistent with
        paragraph (2) of this subsection) agency action unreasonably delayed, except that an
        action to compel agency action referred to in section 7607(b) of this title which is
        unreasonably delayed may only be filed in a United States District Court within the
        circuit in which such action would be reviewable under section 7607(b) of this title. In
        any such action for unreasonable delay, notice to the entities referred to in subsection
        (b)(1)(A) of this section shall be provided 180 days before commencing such action.

42 U.S.C. § 7604(a); see also Clean Air Act, Amendments, Pub. L. No. 101-549, § 707(f), 104

Stat. 2399 (1990).

        The D.C. Circuit briefly discussed the implications of the 1990 Amendments in a

footnote in Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544 (D.C. Cir. 2015):

        Congress has partly abrogated Sierra Club v. Thomas, but its analytical framework
        for determining whether EPA’s delay was unreasonable remains applicable to
        whether Petitioners may be excused for their failure to exhaust their administrative
        remedies. Thomas addressed the circumstances in which courts may compel EPA
        to take action under the Clean Air Act, and, in that context, held that this court had
        exclusive jurisdiction over claims to compel agency action “unreasonably delayed.”
        Thomas, 828 F.2d at 792–96. Congress in the 1990 Amendments to the Clean
        Air Act abrogated Thomas’s jurisdictional holding and shifted to the district
        court the power to compel EPA to act.

Id. at 553 n.6 (emphasis added). The footnote indicates that the Circuit interpreted the 1990

Amendments as giving district courts jurisdiction over unreasonable delay claims. Despite this,

Plaintiffs still argue that the 1990 Amendments do not give the court jurisdiction for their

unreasonable delay claim, based on the restrictive language in Paragraph (2) of the Citizen Suit

Provision—that the action must be brought “under this chapter,” and “is not discretionary.” 42

U.S.C. § 7604(a). Therefore, the court must examine the restrictions to see if they impact its

jurisdiction.

        The parties agree that the Agency’s duty to respond in a timely manner to a petition for

rulemaking comes from the APA, 5 U.S.C. § 555(b), not the CAA. So, the Citizen Suit



                                                  7
Provision’s grant of a right to bring an unreasonable delay claim “under this chapter” appears to

be internally contradictory, since unreasonable delay claims do not arise under the CAA.

However, the cannons of statutory interpretation instruct courts to avoid construing the text of a

statute to be contradictory; “our task is to fit, if possible, all parts into a harmonious whole.”

Roberts v. Sea-Land Servs., Inc., 132 S. Ct. 1350, 1356, (2012) (citing FTC v. Mandel Brothers,

Inc., 359 U.S. 385, 389 (1959)); see also, Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 180 (2012) (“The provisions of a text should be interpreted in a

way that renders them compatible, not contradictory . . . [T]here can be no justification for

needlessly rendering provisions in conflict if they can be interpreted harmoniously”).

       Further, Thomas found that district courts had jurisdiction over claims to compel the EPA

to perform nondiscretionary duties arising under the Clean Air Act. Thomas, 828 F.2d at 794.

But following Thomas, Congress amended the language of the Citizen Suit Provision to give

district courts jurisdiction over “action[s] for unreasonable delay.” Therefore, in order for the

new language in the 1990 amendments to make any sense, the scope of § 304 must have changed

to give district courts jurisdiction over a category of unreasonable delay suits that were not

already captured under the old version of the statute. See Envtl. Integrity Project, 2015 WL

7737307, at *7-8 (explaining that section 304(a)(2) already gave district courts jurisdiction to

compel the EPA to perform non-discretionary duties required by the CAA, including to compel

such non-discretionary action in the face of unreasonable delay, and therefore the amended

language must expand the district courts’ unreasonable-delay jurisdiction to non-discretionary

duties required under the EPA as well). If the court did not find the scope changed, it would be

rendering the added words “district courts of the United States shall have jurisdiction to compel

(consistent with paragraph (2) of this subsection) agency action unreasonably delayed”



                                                   8
superfluous, which it cannot do. Corley v. United States, 556 U.S. 303, 314 (2009); see also

United States v. Menasche, 348 U.S. 528, 538-539 (1955) (“It is [the court’s] duty to give effect,

if possible, to every clause and word of a statute . . . .”). This interpretation is consistent with the

D.C. Circuit’s footnote in Mexichem that in the 1990 Amendments to the Clean Air Act,

Congress nullified Thomas’s ruling and gave district courts “the power to compel EPA to act.”

Mexichem, 787 F.3d at 553 n.6 (citations omitted).

        As to the second restriction, that the action “is not discretionary,” multiple courts in this

district have determined that a claim for an unreasonable delay requires that the action sought to

be compelled is “not discretionary,” since “a delay cannot be unreasonable with respect to action

that is not required.” Ctr. for Biological Diversity v. E.P.A., 794 F. Supp. 2d 151, 156 (D.D.C.

2011) (quoting Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 n. 1 (2004)) (internal

quotation marks omitted). EPA does not have “discretion” to respond to Plaintiffs’ petition, it

must respond “within a reasonable time” under 5 U.S.C. § 555(b), therefore the action “is not

discretionary.”

        Moreover, if the court interpreted the Citizen Suit Provision to deprive district courts of

jurisdiction over unreasonable delay claims such as Plaintiffs’, this would frustrate the purpose

of the Citizen Suit Provision. The Provision’s notice requirement “is intended to preserve [the]

agency's authority to enforce the regulations within its bailiwick (by preventing citizen suits from

supplanting agency action) and to allow the agency an opportunity to bring itself into complete

compliance with the Act and thus . . . render unnecessary a citizen suit.” Envtl. Integrity Project,

2015 WL 7737307, at *7 n. 6 (internal quotations omitted). If the APA provided a separate

avenue to pursue unreasonable delay claims, then Plaintiffs could simply bring suit under the

APA instead of the CAA, without providing notice to the agency, thus nullifying the purpose and



                                                   9
effect of the notice requirement.

       While the court’s analysis leads it to conclude that it has jurisdiction under the CAA over

disputes such as Plaintiffs’—where the notice requirement is complied with—the statutory

language is far from clear. “If the statutory language is plain, we must enforce it according to its

terms. But oftentimes the ‘meaning—or ambiguity—of certain words or phrases may only

become evident when placed in context.’” King v. Burwell, 135 S. Ct. 2480, 2489 (2015)

(citations omitted). “Where the words are ambiguous, the judiciary may properly use the

legislative history to reach a conclusion.” United States v. Pub. Utilities Comm'n of Cal., 345

U.S. 295, 315 (1953). While “the bar is high,” a court “may examine the statute’s legislative

history in order to shed new light on congressional intent, notwithstanding statutory language

that appears superficially clear.” Consumer Elecs. Ass'n v. FCC, 347 F.3d 291, 298 (D.C. Cir.

2003) (internal quotation marks and citations omitted).

       The legislative history of the Provision clarifies that the court would have CAA

jurisdiction to hear Plaintiffs’ suit, if proper notice was given. First, the Senate Committee on

Environment and Public Works Report on the 1990 Amendments states in the “Citizen Suits and

Petition (Section 609) Discussion”:

       The amendments will allow a citizen suit to be brought in Federal district court
       against the Administrator where the plaintiff alleges that EPA has failed to act, and
       further alleges that the failure violates one or more of the standards set out in section
       307(d)(9) of the Act, or that the failure constitutes unreasonable delay. Under this
       amendment, the citizen suit provision of the Act will encompass the full range
       of inaction covered by the Administrative Procedure Act (AP). Under this
       amendment, the district courts would be granted authority to compel actions
       by the Administrator that have been unreasonably delayed, as well as to design
       remedies to address EPA failures to act that are arbitrary, capricious, and abuse of
       discretion or not in accordance with law . . .

       The amendment also gives the district courts jurisdiction under section
       304(a)(2) to compel agency action unreasonably delayed. This jurisdiction
       would apply in circumstances where EPA has already commenced a proceeding

                                                  10
       directed at the final action sought by the plaintiff, but had failed to complete it
       within a reasonable time.


S. Rep. No. 101-228 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3757-58. The D.C. Circuit

cited this section of the Senate Report in its footnote in Mexichem, in which it indicated that the

Citizen Suit Provision gave district courts jurisdiction over claims of agency inaction under the

APA—which include unreasonable delay suits. Mexichem, 787 F.3d at 553 n.6.

       Consistent with the legislative history cited by the Circuit, Congressman Michael Oxley

stated for the Congressional record:

       The bill changes the judicial review scheme under the act by giving the district
       courts jurisdiction to compel Agency action that has been unreasonably
       delayed.
       ...

       This provision has a broad effect because Agency action referred to in section
       307(b) includes any final action taken by the Administrator under the act. Thus,
       for example, final Agency action in the form of a response to a petition for
       rulemaking would fall within this category. . .

       This unreasonable delay jurisdiction, like the unreasonable delay jurisdiction
       that the circuit courts of appeals now have, authorizes the appropriate courts
       to enforce the provision of the Administrative Procedure Act that requires an
       agency, “within a reasonable time,” to “proceed to conclude a matter
       presented to it.” Thus, unreasonable delay jurisdiction is designed to allow the
       courts to compel the Agency to respond to a petition for rulemaking or other request
       for Agency action if the Agency has made no response within a reasonable time
       after the request has been presented to it.

136 Cong. Rec. E3670-01 (Nov. 2, 1990) 1990 WL 206958 (emphasis added).

       The legislative history of the 1990 amendments to the CAA therefore make clear that

Congress intended that district courts be given jurisdiction over unreasonable delay claims

alleging a failure to respond to a petition for rulemaking under the CAA, and “in every case we

must respect the role of the Legislature, and take care not to undo what it has done.” Burwell,

135 S. Ct. at 2496.

                                                 11
          Based on the court’s analysis of the text of the Citizen Suit Provision, applicable

precedent in this Circuit, and the legislative history of the 1990 Amendments to the CAA, the

court finds that it has, in general, subject matter jurisdiction over this type of dispute. Since the

Provision also provides an adequate remedy for Plaintiffs’ alleged harms—they may bring an

unreasonable delay suit—the appropriate waiver of sovereign immunity also comes from the

CAA. But that waiver of immunity requires that a prospective plaintiff give the EPA notice 180

days before filing suit, and, since Plaintiffs concede that they did not do so here, they cannot

proceed. Because the Plaintiffs failed to effectuate waiver of sovereign immunity through

notice, the court lacks subject matter jurisdiction over this particular dispute. Accordingly, the

court will grant Defendants’ motion to dismiss.

          IV.     CONCLUSION

          For the foregoing reasons, Defendants’ motion to dismiss will be granted by separate

order.3



Date: September 19, 2016

                                                      Tanya S. Chutkan
                                                      TANYA S. CHUTKAN
                                                      United States District Judge



3
  Defendants raise a new argument in their reply brief—that if CAA Section 304’s waiver does not apply to
Plaintiffs’ APA claim, then under the D.C. Circuit’s decisions in Telecommunications Research & Action Ctr. v.
F.C.C., 750 F.2d 70 (D.C. Cir. 1984) and Thomas, this suit belongs in the Court of Appeals, not the District Court.
(Def.’s Reply at 8-9). Given the court’s finding, it need not address this argument.
Plaintiffs also argue that Defendants should be judicially estopped from arguing that the Citizen Suit provision
provides the court with jurisdiction over this matter because EPA allegedly advocated a contrary position in Zook v.
McCarthy, Civ. No. 14-5187, 2015 WL 331928 (D.C. Cir. filed Jan. 26, 2015). The court disagrees with Plaintiffs
and agrees with Judge Jackson’s finding in Envtl. Integrity Project v. United States Envtl. Prot. Agency, No. 15-
0139 (ABJ), 2015 WL 7737307, at *4 n. 3 (D.D.C. Dec. 1, 2015) that the EPA did not advocate an opposite
position in Zook, since in both cases the government asked the court to apply the Citizen Suit Provision to
nondiscretionary functions.


                                                         12
