                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
SIERRA CLUB,                   )
                               )
          Plaintiff,           )
                               )
          v.                   )    Civil Action No. 08-424 (RWR)
                               )
UNITED STATES ENVIRONMENTAL    )
PROTECTION AGENCY, et al.,     )
                               )
          Defendants.          )
______________________________)


                   MEMORANDUM OPINION AND ORDER

     Plaintiff Sierra Club brings this action against the U.S.

Environmental Protection Agency and its Administrator

(collectively “the EPA”) under the citizen suit provision of the

Clean Air Act (“CAA”), 42 U.S.C. § 7604, and the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 701-706, alleging that the EPA

violated a statutory obligation to promulgate by November 15,

2000 regulations to reduce emissions of hazardous air pollutants

created during the manufacturing of brick and structural clay

products.   The EPA has moved to dismiss the Sierra Club’s

complaint for lack of jurisdiction, arguing that it is time-

barred and the claim that the EPA has failed to perform a non-

discretionary duty was mooted in 2003 when the EPA issued

regulations even though the court of appeals later vacated them.

However, because jurisdiction exists over a claim that the EPA
                                 -2-

still has not promulgated regulations that Congress required

the EPA to enact by 2000, the EPA’s motion will be denied.

                             BACKGROUND

     In 1990, Congress revised the CAA as it applied to the

regulation of approximately 189 specified hazardous air

pollutants.    It directed the EPA to identify the sources of those

pollutants and to promulgate regulations governing the emission

of hazardous air pollutants from those sources.   The EPA then

listed brick kilns and clay products manufacturing as a major

source of hazardous air pollutants.    (Compl. ¶ 10; Pl.’s Opp’n

at 3.)   Section 112(e)(1) of the CAA directs the EPA to

promulgate emissions standards for major sources of hazardous air

pollutants by November 15, 2000.   42 U.S.C. 7412(e)(1).   (See

Compl. ¶ 9.)   However, the EPA did not issue until 2003 a final

rule creating a category containing both brick and structural

clay products manufacturing and clay ceramics manufacturing, and

promulgating national emission standards for hazardous air

pollutants for new and existing sources at brick and structural

clay products manufacturing facilities and clay ceramics

manufacturing facilities.   (Compl. ¶ 12.)   In March 2007, the

D.C. Circuit vacated the emission standards for both the brick

and structural clay products manufacturing and clay ceramics

manufacturing, and remanded the proceedings to the EPA.    Sierra
                                 -3-

Club v. EPA, 479 F.3d 875 (D.C. Cir. 2007). (See Compl. ¶ 15.)

By one year later, no new standards had been promulgated.

     The Sierra Club filed the instant action under the citizen

suit provision of the CAA, 42 U.S.C. § 7604, arguing that the

Circuit’s order remanding the case to the EPA restored the status

quo that existed before the standards were enacted, placing the

EPA again in violation of its non-discretionary duty under 42

U.S.C. 7412(e)(1) to issue by 2000 emission standards for brick

and ceramic kilns.   (Compl. ¶ 16.)    The EPA has moved under

Federal Rule of Civil Procedure 12(b)(1) to dismiss the complaint

for lack of subject matter jurisdiction.    It argues that Congress

waived sovereign immunity under these circumstances only for a

citizen suit alleging unreasonable agency delay, not one alleging

an agency’s failure to perform a non-discretionary duty, and that

a six-year statute of limitations is jurisdictional and bars the

complaint as pled.   The Sierra Club opposes.

                             DISCUSSION

     Rule 12(b)(1) permits a defendant to move to dismiss a

complaint for lack of subject-matter jurisdiction.    Fed. R. Civ.

P. 12(b)(1).    “‘Before a court may address the merits of a

complaint, it must assure that it has jurisdiction to entertain

the claims.’”   Cornish v. Dudas, 715 F. Supp. 2d 56, 60 (D.D.C.

2010) (quoting Marshall v. Honeywell Tech. Solutions, Inc., 675

F. Supp. 2d 22, 24 (D.D.C. 2009)).     A plaintiff bears the burden
                                 -4-

to establish that the court has subject-matter jurisdiction over

the claims in the complaint.   Shuler v. United States, 531 F.3d

930, 932, (D.C. Cir. 2008).    If the plaintiff is unable to do so,

the Court must dismiss the action.     Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94 (1998) (citing Ex parte McCardle,

74 U.S. 506, 514 (1868)).

     “‘[S]overeign immunity is jurisdictional’ and ‘[a]bsent a

waiver, . . . shields the Federal Government and its agencies

from suit.’”   Cohen v. United States, 650 F.3d 717, 723 (D.C.

Cir. 2011) (quoting FDIC v. Meyer, 510 U.S. 471, 475 (1994)

(citing Loeffler v. Frank, 486 U.S. 549, 554 (1988), and Federal

Housing Administration v. Burr, 309 U.S. 242, 244 (1940))).     “‘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.’”   Bloch v. United States Census Bureau, 754 F.

Supp. 2d 15, 17 (D.D.C. 2010) (quoting United States v. Mitchell,

463 U.S. 206, 212 (1983)).

     The CAA’s citizen suit provision, 42 U.S.C. § 7604, waives

sovereign immunity for suits seeking to compel an agency to

perform a non-discretionary duty by providing that any person

“may commence a civil action on his own behalf . . . against the

Administrator where there is an alleged failure of the

Administrator to perform any act or duty under this chapter which

is not discretionary with the Administrator,” and that the
                               -5-

“district courts of the United States shall have jurisdiction to

compel . . . agency action unreasonably delayed.”    42 U.S.C.

§ 7604(a); see also Sierra Club v. Johnson, 500 F. Supp. 2d 936,

940 (N.D. Ill. 2007) (stating that “42 U.S.C. § 7604(a)(2)

expressly waives the sovereign immunity of the United States”).

The EPA argues that any claim that it violated a non-

discretionary duty to promulgate emissions standards for

hazardous air pollutants for new and existing sources at brick

and structural clay products manufacturing facilities and clay

ceramics manufacturing facilities before November 15, 2000 became

moot when the EPA issued such regulations in 2003.   (Defs.’ Mem.

in Supp. of Mot. to Dismiss (“Defs.’ Mem.”) at 8.)   According to

the EPA, its duty to promulgate those regulations is no longer

subject to the “nondiscretionary, date-certain deadline in the

statute” (Defs.’ Mem. at 7), and the government has not waived

its sovereign immunity from a suit alleging failure to perform a

nondiscretionary rule-making duty where the duty was performed

but the rule was judicially vacated.   The EPA then argues that,

to the extent that the complaint alleges a claim that the EPA

unreasonably delayed responding to the order to promulgate

regulations on remand, Sierra Club would have to first comply

with the statutory requirement to give the EPA 180 days notice of

the intent to sue for the unreasonable delay.   (Def.’s Mem.

at 8.)
                                   -6-

        “When a court vacates an agency’s rules, the vacatur

restores the status quo before the invalid rule took effect and

the agency must ‘initiate another rulemaking proceeding[.]’”

Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 64 (D.D.C. 2004)

(quoting Indep. U.S. Tanker Owners Comm. v. Dole, 809 F.2d 847,

854 (D.C. Cir. 1987), and Sugar Cane Growers Co-op. of Florida v.

Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002)).     Sierra Club v.

Johnson, 374 F. Supp. 2d 30 (D.D.C. 2005), recognized the same

rule.    That case involved a deadline under the CAA by which

the EPA was required to approve or disapprove state air quality

plans within 12 months of their submission.    The EPA approved

certain plans years after their submission by adopting rules

in 2001 and 2003 that the court of appeals vacated.    The Sierra

Club filed a citizen suit complaining that the EPA was in

violation of its nondiscretionary duty to approve or disapprove

timely the state plans.    The district court held that the EPA’s

non-discretionary rulemaking obligation was not discharged and

that the court had jurisdiction over the plaintiff’s citizen

suit.    The opinion stated that

        The existence of an unfulfilled duty to perform a
        nondiscretionary act (that is, to approve or
        disapprove) . . . disposes of EPA’s jurisdictional
        argument. It is true that the Clean Air Act’s grant of
        jurisdiction to district courts [applies to] suits to
        compel nondiscretionary acts, 42 U.S.C. § 7604(a)(2),
        but this is just such a suit.
                                 -7-

Sierra Club v. Johnson, 374 F. Supp. 2d at 33 n.5.    Here,

the EPA’s 2003 regulations do not discharge the EPA’s duty to

promulgate emission standards for new and existing sources at

brick and structural clay products manufacturing facilities and

clay ceramics manufacturing facilities, and the EPA remains in

violation of its non-discretionary duty to issue those

regulations by November 15, 2000.

     The defendants argue alternatively that if the proper remedy

is indeed an action for failure to discharge a non-discretionary

duty, the Sierra Club’s complaint is time barred by the six-year

limitation period set forth in 28 U.S.C. § 2401.   (Def.’s Mem. at

10-11.)   That statute provides, in relevant part, that “every

civil action commenced against the United States shall be barred

unless the complaint is filed within six years after the right of

action first accrues.”   28 U.S.C. § 2401.   However, the D.C.

Circuit has recently spoken quite forcefully, albeit in dictum,

against the EPA’s proposition.   In a case where the government

failed to take prescribed actions by deadlines set in four

environmental statutes, the D.C. Circuit opined that it was

likely error for the district court to have dismissed as

time-barred under § 2401 claims seeking to compel agency action

under the APA.   The court stated:

     This court has repeatedly refused to hold that actions
     seeking . . . to compel agency action unlawfully
     withheld or unreasonably delayed are time-barred if
                                 -8-

     initiated more than six years after an agency fails to
     meet a statutory deadline.

The Wilderness Society v. Norton, 434 F.3d 584, 588 (D.C. Cir.

2006) (internal quotation marks and citation omitted).      The

opinion cited as illustrative examples cases in which the delay

between the unmet statutory deadline and the suit being filed was

eight years, In re United Mine Workers of America International

Union, 190 F.3d 545 (D.C. Cir. 1999), and nine years, In re

Bluewater Network, 234 F.3d 1305 (D.C. Cir. 2000).    In each case,

the court of appeals rejected the agency’s contention that the

suit was time-barred, noting that the complaints concerned not

what the agency had done, but what it had not done.   The court

acknowledged the argument that the agency inaction after missing

statutory deadlines amounted to “continuing violations,” The

Wilderness Society, 434 F.3d at 589, and rightly or not, the

circuit gave no preclusive force, as EPA here tries to do, to the

language in § 2401 timing the bar at six years after the right of

action “first accrues.”    Thus, dismissing this action as untimely

likely would be error.

                         CONCLUSION AND ORDER

     The complaint timely alleges a violation of a non-

discretionary duty to act, a claim which falls within the waiver

of sovereign immunity found within the CAA’s citizen suit

provision, 42 U.S.C. § 7604.    Accordingly, it is hereby
                               -9-

     ORDERED that the defendant’s motion [14] to dismiss for lack

of jurisdiction be, and hereby is, DENIED.

     SIGNED this 27th day of March, 2012.


                                      /s/
                              RICHARD W. ROBERTS
                              United States District Judge
