                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 SIERRA CLUB,

         Plaintiff,

         v.
                                                             Civil Action No. 08-1545 (CKK)
 STEPHEN L. JOHNSON, Administrator,
 United States Environmental Protection
 Agency,

         Defendant.


                                  MEMORANDUM OPINION
                                      (June 8, 2009)

       Plaintiff Sierra Club has brought this action against Defendant Stephen L. Johnson, the

Administrator of the United States Environmental Protection Agency, alleging that Defendant

has violated his obligation to issue or deny an operating permit for the Hugh L. Spurlock

Generating Station in Maysville, Kentucky (the “Spurlock facility”). Currently pending before

the Court is Defendant’s [9] Motion to Dismiss or, in the alternative, [10] Motion to Transfer,

based on the specific venue provisions in the Clean Air Act that limit the possible venues in

which Plaintiff may assert one of the three claims raised in its Complaint. After a searching

review of the parties’ submissions, applicable case law and statutory authority, and the entire

record of the case as a whole, the Court agrees with Defendant that Plaintiff has brought this case

in an improper venue. Accordingly, the Court shall GRANT Defendant’s [10] Motion to

Transfer and, in the Court’s discretion, shall order this case to be transferred to the Eastern

District of Kentucky, for the reasons that follow.
                                       I. BACKGROUND

       A.      Statutory and Regulatory Background

       The Clean Air Act, 42 U.S.C. §§ 7401, et seq. (“CAA”), is intended “to protect and

enhance the quality of the Nation’s air resources so as to promote the public health and welfare

. . . .” Id. § 7401(b)(1). The CAA establishes a comprehensive program for the regulation of air

pollution through a system of shared federal and state responsibility. At the federal level, the

Administrator of the Environmental Protection Agency (“EPA”) is responsible for directing the

activities of the EPA and implementing certain requirements set forth in the CAA. Id. § 7402(b),

7661d. At the state level, the CAA delegates to each state the obligation and authority to develop

an operating permit program that complies with the emissions and regulatory requirements set

forth in the Act. Id. § 7661a(d)(1). In this case, the EPA has approved Kentucky’s operating

permit program, pursuant to which the authorized permitting authority is the Kentucky Division

of Air Quality (“KDAQ”). See 66 Fed. Reg. 54,953 (Oct. 31, 2001).

       Title V of the CAA establishes the procedure for processing air pollution permit

applications and the issuance of permits by the state. Specifically, 42 U.S.C. § 7661d(a) requires

that state permitting authorities submit each proposed permit to the Administrator of the EPA for

review. If the Administrator does not object to a deficient permit during the statutory period, any

person may petition the Administrator to object to the Title V permit. 42 U.S.C. § 7661d(b)(2).

The Administrator must then grant or deny the petition. Id.

       If the Administrator objects to the proposed permit because of non-compliance with the

applicable requirements of the CAA, the state permitting authority must submit a permit that has

been “revised to meet the objection” for further review by the EPA within 90 days of the


                                                 2
Administrator’s objection. 42 U.S.C. § 7661d(c). If the state permitting authority fails to timely

submit a revised permit proposal, “the Administrator shall issue or deny the permit in accordance

with the requirements of [Title V].” Id. § 7661d(c). It is this last requirement that is at issue in

this case.

        The CAA contains several citizen suit provisions. A person may bring an action “where

there is alleged a failure of the Administrator to perform any act or duty under this Act which is

not discretionary . . . .” Id. § 7604(a)(2). The Act provides that such an action may be brought in

any district court. Id. § 7604(a) (emphasis added). The CAA also authorizes a person to bring

suit to compel performance of “agency action unreasonably delayed.” Id. Unlike claims brought

to compel an act or duty that is not discretionary, the CAA requires “unreasonably delayed”

claims to be brought in a specific venue:

        [t]he district courts of the United States shall have jurisdiction to compel . . .
        agency action unreasonably delayed, except that an action to compel agency
        action referred to in [42 U.S.C. § 7607(b)] 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 [42 U.S.C. § 7607(b)].

Id; see also 42 U.S.C. § 7606(b)(1) (allocating petitions for certain “locally or regionally

applicable” actions of the EPA to “the appropriate circuit”).

        B.     Factual Background

        Sierra Club is a non-profit organization whose purpose is to “preserve, protect, and

enhance the natural environment.”1 Compl. ¶ 3. Plaintiff has over 800,000 members nationwide,

including members who live around and are affected by the Spurlock facility:


        1
        These facts are drawn from the well-pleaded factual allegations in Sierra Club’s
Complaint, which the Court shall accept as true for purposes of the present motion. See
Scandinavian Satellite Sys. v. Prime TV Ltd., 291 F.3d 839, 844 (D.C. Cir. 2002).

                                                  3
        Plaintiff’s members live, work, and recreate around the Spurlock facility in
        Maysville, Kentucky. Plaintiff’s members breathe, use and enjoy the ambient air
        around the area of Maysville, Kentucky. Their health and use of the air is
        impaired by the pollution in the air caused by the Spurlock facility in Maysville.
        The Spurlock facility emits hazardous air pollutants which negatively impact
        Plaintiff’s members.

Id. at ¶ 4.

        On August 15, 2006, Plaintiff petitioned Defendant to object to a Title V permit for the

Spurlock facility proposed by KDAQ, the authorized state permitting authority for facilities in

Kentucky. Id. ¶ 13. On August 30, 2007, Defendant objected to the permit issued by KDAQ on

account of non-compliance with CAA requirements. Id. KDAQ submitted a revised proposed

permit to Defendant on March 5, 2008. Id. ¶ 16. As of September 5, 2008, Defendant had not

made any determination with respect to the revised Title V permit proposal, and had not issued a

Title V permit for the Spurlock facility. Id. ¶ 24, 31.

        C.     Procedural Background

        Plaintiff filed this lawsuit on September 5, 2008, asserting three claims for relief. Id. at

¶¶ 18-36. Count I alleges that Defendant failed to perform a mandatory duty by failing to issue

or deny a Title V air pollution operating permit for the Spurlock facility. Compl. ¶¶ 19, 23-25,

26. Count II, which is pled in the alternative, alleges that Defendant unreasonably delayed its

decision to issue or deny the Title V permit. Id. ¶¶ 28-32. Count III seeks a declaratory ruling

that Defendant must issue or deny the permit for the Spurlock facility. Id. ¶¶ 33-36.

        Defendant filed a Motion to Dismiss or, in the Alternative, Motion to Transfer, arguing

that the District of Columbia is an improper venue for Count II of Plaintiff’s Complaint and that

this case should either be dismissed or, in the Court’s discretion, transfered to the Eastern District



                                                  4
of Kentucky (the judicial district in which the Spurlock facility is located). In Opposition,

Plaintiff argues that a transfer of this case is unwarranted and that the Court should exercise

“pendent venue” over Count II of the Complaint even if venue is otherwise improper. Defendant

also filed a Reply in support of its Motion. Accordingly, Defendant’s Motion is fully briefed and

ripe for decision.

                                     II. LEGAL STANDARD

        A. Motion To Dismiss, Fed. Rule of Civ. P. 12(b)(3)

        Defendant argues that the District of Columbia is an improper venue for this case and that

it should be dismissed pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(3). “In

considering a Rule 12(b)(3) motion, the court accepts the plaintiff’s well-pled factual allegations

regarding venue as true, draws all reasonable inferences from those allegations in the plaintiff’s

favor, and resolves any factual conflicts in the plaintiff’s favor.” Darby v. U.S. Dep’t of Energy,

231 F. Supp. 2d 274, 276 (D.D.C. 2002). Nevertheless, a plaintiff “bears the burden of

establishing that venue is proper.” Varma v. Gutierrez, 421 F. Supp. 2d 110, 113 (D.D.C. 2006)

(internal quotations omitted). See also Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003)

(“[b]ecause it is the plaintiff’s obligation to institute the action in a permissible forum, the

plaintiff usually bears the burden of establishing that venue is proper”).2

        B. Motion to Transfer, 28 U.S.C. § 1406(a)


       2
         Citing a variety of cases from other judicial districts, Plaintiff argues that some courts
“have held that the defendant, as the party challenging venue, bears the burden” of demonstrating
that a venue is improper. Pl.’s Opp’n at 3-4. As reflected in the cases cited above, that is not the
law in this district, which places the burden on Plaintiff to demonstrate that the forum it has
selected is an appropriate one. In any event, for the reasons set forth below, the Court would find
the District of Columbia to be an improper venue for Count II of Plaintiff’s Complaint regardless
of the party carrying the burden.

                                                   5
        Defendant alternatively argues that, if the Court does not dismiss Plaintiff’s Complaint in

its entirety, then it should exercise its discretion to transfer the case. Pursuant to 28 U.S.C. §

1406(a), when a case is filed in the wrong federal judicial district, the district court in which the

action is filed “shall dismiss, or if it be in the interest of justice, transfer such case to any district

or division in which it could have been brought.” In considering a motion to dismiss for lack of

venue, “unless contradicted by an evidentiary showing, the court accepts the plaintiff’s well-pled

factual allegations regarding venue as true, draws all reasonable inferences from those allegations

in the plaintiff’s favor, and resolves any factual conflicts in the plaintiff’s favor.” Jyachosky v.

Winter, 04-1733, 2006 U.S. Dist. LEXIS 44399 at *4 (D.D.C. Jun. 29, 2006) (citations and

internal quotations omitted). Pursuant to 28 U.S.C.§ 1406(a), the decision whether to transfer or

dismiss “rests within the sound discretion of the district court.” Naartex Consulting Corp. v.

Watt, 722 F.2d 779, 789 (D.C. Cir. 1983) (citations omitted).

                                          III. DISCUSSION

        There is no dispute that the District of Columbia is a proper venue for Counts I and III of

Plaintiff’s Complaint, both of which may be heard in this district pursuant to the general venue

provision in 28 U.S.C. § 1391. The parties’ sole dispute concerns whether Count II (Plaintiff’s

“unreasonable delay” claim) is properly asserted in this district given the specific venue

provisions in the CAA:

        [t]he district courts of the United States shall have jurisdiction to compel . . . agency
        action unreasonably delayed, except that an action to compel agency action referred
        to in [42 U.S.C. § 7607(b)] 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 [42 U.S.C. § 7607(b)].




                                                     6
42 U.S.C. § 7604(a). This provision interacts with Section 7607(b), the CAA’s judicial review

provision, creating a sort of venue dichotomy, whereby the appropriate venue depends on

whether the issue is regional or national in scope:

          [a] petition for review of…any other final action of the Administrator under this
          Act…which is locally or regionally applicable may be filed only in the United
          States Court of Appeals for the appropriate circuit. Notwithstanding the
          preceding sentence a petition for review of any action referred to in such sentence
          may be filed only in the United States Court of Appeals for the District of
          Columbia if such action is based on a determination of nationwide scope or effect
          and if in taking such action the Administrator finds and publishes that such action
          is based on such a determination.

42 U.S.C. § 7607(b)(1). The D.C. Circuit has explained that these venue provisions are intended

“to place nationally significant decisions in the D.C. Circuit,” while localized controversies

remain in the affected regions. Texas Mun. Power Agency v. EPA, 89 F.3d 858, 867 (D.C. Cir.

1996).3

          Based on these venue provisions, a claim seeking to compel unreasonably delayed agency

action may be brought only in a district court in the appropriate circuit where the action is to be

performed, unless the action involves an issue of nationwide scope or effect. As such, the critical

determination for purposes of Defendant’s Motion is whether the issuance or denial of a Title V

permit to the Spurlock facility would constitute an action that is “locally or regionally applicable”

(and is judicially reviewable only in the Sixth Circuit) or whether it constitutes an action that has

a “nationwide scope or effect” (and is judicially reviewable only in the District of Columbia).




          3
         The Court notes that Section 7607(b)(1) is a venue and not jurisdictional provision. See
Texas Mun. Power Agency v. EPA, 89 F.3d 858, 867 (D.C. Cir. 1996) (holding this provision to
“be read as prescribing the choice among circuits and not the power of a particular federal circuit
court to hear a claim”).

                                                   7
       The few courts that have engaged in this type of inquiry have not set forth a unitary

standard for doing so. On the one hand, certain actions are clearly nationally applicable, such as

the issuance of an EPA regulation that applies uniformly nationwide. See, e.g., Motor Vehicle

Mfrs. Ass’n v. Costle, 647 F.2d 675, 677 (6th Cir. 1981) (finding a nationwide regulation

concerning vehicle emission system manufacturers to be a nationwide issue). On the other hand,

certain types of actions are clearly regionally applicable, such as an EPA determination that

applies promulgated standards to a particular facility. See Harrison v. PPG Indus., 446 U.S. 578,

586 (1980) (finding an EPA determination concerning the applicability of emissions standards to

a specific power facility to be local in scope); Illinois EPA v. EPA, 947 F.2d 283, 288-89 (7th

Cir. 1991) (finding the denial of a supplemental grant application to be regionally applicable).

Significantly, a court’s inquiry should focus on the subject of the regulation, and not on its

speculative effects. See Natural Res. Def. Council v. Thomas, 838 F.2d 1224, 1229 (D.C. Cir.

1988) (holding that a determination of venue “turn[ing] on the de facto scope of the regulation . .

. might raise complex factual and line-drawing problems” that “would waste time and serve little

purpose”). See also New York v. EPA, 133 F.3d 987, 989-90 (7th Cir. 1998) (holding that a

court’s inquiry “should depend on the location of the persons or enterprises that the action

regulates” because an alternative inquiry based on the scope of the effect would be vague and

unworkable). Id.

       On the facts of this case, the Court has little difficulty concluding that the issuance or

denial of a Title V permit by Defendant to the Spurlock facility is an action of local or regional

applicability. This claim concerns a single power plant in Kentucky. Compl. ¶ 2. There are no

allegations that the decision to grant or deny the operating permit would necessarily affect similar


                                                  8
facilities nationwide, nor anything to suggest that the permit determination would be based on

nationwide considerations. The allegations in Plaintiff’s Complaint even underscore its local

focus:

         Plaintiff’s members live, work, and recreate around the Spurlock facility in
         Maysville, Kentucky. Plaintiff’s members breathe, use and enjoy the ambient air
         around the area of Maysville, Kentucky. Their health and use of the air is
         impaired by the pollution in the air caused by the Spurlock facility in Maysville.
         The Spurlock facility emits hazardous air pollutants which negatively impact
         Plaintiff’s members.

Id. at ¶ 4.

         Plaintiff’s perfunctory arguments in Opposition do not alter this local focus. For

example, Plaintiff argues that the effect of Defendant’s permitting decision is not yet known and,

therefore, it is “too soon” to make a determination with respect to venue. See Pl’s Opp’n at 10,

12. This argument suggests that the Court should not assess the proper venue for Plaintiff’s

unreasonable delay claim until after Defendant has made the permitting decision at issue. If the

Court were to accept that argument, the venue question – and the unreasonable delay claim itself

– would illogically be rendered moot. See Def’s Rep. at 5. Plaintiff also argues that emissions

from Kentucky power plants interfere significantly with ambient air quality in downwind states,

thereby implying a more nationwide focus. Id. at 11 (citing a 2005 EPA finding). The Court

agrees that pollution may, in some instances, affect more than a single state, and that such issues

may, in some cases, be addressed through nationwide regulations or other nationwide actions.

But Defendant’s decision to grant or deny an operating permit to one plant in Kentucky does not

fit those facts. This is particularly so because the Court is unwilling to engage in speculation

regarding the de facto effect of the Spurlock facility permitting decision – an inquiry that is more



                                                  9
appropriately resolved by Defendant and not the judiciary. Cf. Nat. Res. Def. Council, 838 F.2d

at 1229. For these reasons, the Court finds that Defendant’s determination to grant or deny the

Spurlock facility operating permit is an issue of local or regional scope and that Plaintiff’s

unreasonable delay claim (Count II) must be brought in a district court within the Sixth Circuit,

and not in this Court.

       Anticipating that the Court may find Count II subject to improper venue in this district,

Plaintiff argues that this Court should nevertheless apply the doctrine of “pendent venue” over

this claim. See Pl.’s Opp’n at 12-17. This doctrine is similar to the concept of supplemental

jurisdiction, providing an exception to the traditional rule that venue must be appropriate for each

claim asserted by a plaintiff. See Bartel v. FAA, 617 F. Supp. 190, 197 n.31 (D.D.C. 1985).

Pursuant to pendent venue, federal courts may exercise their discretion to hear claims as to which

venue is lacking if those claims arise out of a common nucleus of operative facts as the claims

that are appropriately venued and the interests of judicial economy are furthered by hearing the

claims together. See Beattie v. United States, 756 F.2d 91, 102-03 (D.C. Cir. 1984), abro’d on

other grounds by, Smith v. United States, 507 U.S. 197 (1993).

       In this case, the Court rejects Plaintiff’s argument that the Court should exercise pendent

venue because that doctrine is inconsistent with the specific venue provisions of the CAA, 42

U.S.C. §§ 7604(a), 7607(b)(1). Where a special venue provision places venue in a specific

district, such a provision controls venue for that claim, even where it arises from a common

nucleus of operative fact as a properly situated claim. See, e.g., Jyanchosky, 2006 U.S. Dist.

LEXIS 44399 at *13 n.3 (refusing to invoke the doctrine of pendent venue to avoid the statutory

venue requirements of Title VII); Boggs v. United States, 987 F. Supp. 11, 18-19 (D.D.C. 1997)


                                                 10
(rejecting pendent venue over Federal Tort Claims Act because doing so would circumvent

congressional intent to limit where such claims could be heard); Bartel, 617 F. Supp. at 198 n.33

(rejecting pendent venue because the Court “lacks the authority to ignore the congressional intent

to limit venue” and must abide by such restrictions, despite the presence of related claims

properly situated under the general venue statute). Accordingly, the Court finds that application

of pendent venue over the unreasonable delay claim is inappropriate given Congress’s clear

intent to limit the districts in which such claims may be heard.

        Having determined that venue is improper as to Count II and that pendent venue is

inappropriate, the Court may either dismiss this action or, in the interest of justice, transfer the

case to a district where venue would be proper. 24 U.S.C. § 1406(a). See also Modaressi, 441 F.

Supp. 2d at 53. “The decision whether a transfer or dismissal is in the interest of justice . . . rests

within the sound discretion of the [C]ourt,” Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789

(D.C. Cir. 1983), but “[g]enerally, the ‘interest of justice’ instructs courts to transfer cases to the

appropriate judicial district rather than dismiss them,” James v. Booz-Allen & Hamilton, Inc., 227

F. Supp. 2d 16, 20 (D.D.C 2002).

        The Court shall exercise its discretion to transfer rather than dismiss this case.4 The

Court finds that this course of action promotes fairness, convenience to the parties, and judicial

economy. The Court also finds that transferring all of the claims to the same forum assures that



        4
           Although two of Plaintiff’s claim are otherwise subject to proper venue in the District of
Columbia, courts in this district have consistently transferred an entire case to another judicial
district, rather than bifurcate the litigation. See, e.g., Saran v. Harvey, Civ. A. No. 04-1847, 2005
U.S. Dist. LEXIS 8909 at *12 (D.D.C. May 9, 2005). The Court finds that transferring the entire
case is particularly appropriate here because both parties agree that the three counts in Plaintiff’s
Complaint should be heard together. See Pl’s Opp’n at 13; Def.’s Reply at 9 n.3.

                                                  11
they will be heard together, preventing the unnecessary expenditure of judicial and party

resources that would otherwise occur if the claims were heard in multiple judicial districts.

       Although Plaintiff proffers certain facts that it believes weigh against the transfer of this

action, none are meritorious. For example, Plaintiff argues that its counsel has not been admitted

to practice before the district court of the Eastern District of Kentucky, the most appropriate

district to hear this case. See Pl’s Opp’n at 16. This argument is of little persuasive value

because Plaintiff fails to explain why its counsel could not simply appear pro hac vice in that

forum. Nor would this be a reason to keep an otherwise improperly venued case in this district.

Plaintiff also argues that this case is dominated by actions and omissions that occurred at

Defendant’s headquarters in the District of Columbia and involves EPA documents and

witnesses located in the District. Id. at 17. Even if the Court were to fully credit Plaintiff’s view

of the witness and document locations, the argument has little merit; through advances in modern

technology, people and documents may move from one location to another with relative ease.

The Court therefore finds that a transfer of this case pursuant to 28 U.S.C. § 1406(a) to an

appropriate district is warranted.

       While any district court within the Sixth Circuit is a potentially proper venue under 42

U.S.C. §§ 7604(a), 7607(b)(1), the Eastern District of Kentucky appears to be the most

appropriate. This case involves issues local to Kentucky and directly affects Plaintiff’s members

living in the areas surrounding the Spurlock facility, which is located in the Eastern District of

Kentucky. The Court finds that the public interest would be promoted by deciding this local

controversy at home. Cf. National Wildlife Fed’n v. Harvey, 437 F. Supp. 2d 42, 50 (D.D.C.

2006) (finding that litigation under the Endangered Species Act would best promote the interests


                                                 12
of justice if resolved in the geographic regions with the largest stake in its outcome). Plaintiff

does not assert that there is a more appropriate forum to which this action should be transferred.

Accordingly, the Court shall exercise its discretion to transfer this entire case to the Eastern

District of Kentucky.5

                                          CONCLUSION

      For the reasons set forth above, the Court shall GRANT Defendant’s [10] Motion to

Transfer this case to the Eastern District of Kentucky. An appropriate Order accompanies this

Memorandum Opinion.

Date: June 8, 2009

                                                        /s/
                                                       COLLEEN KOLLAR-KOTELLY
                                                       United States District Judge




       5
          The last paragraph of Plaintiff’s Opposition implies that Plaintiff would consider
amending its Complaint to eliminate Count II (thereby allowing Plaintiff to potentially raise
Count II in a different forum while litigating Counts I & III in this forum). See Pl.’s Opp’n at 23.
Plaintiff did not so move, and even if it had, such a motion would be inconsistent with the
practical reality that Plaintiffs’ claims, as alternative avenues for relief, should be heard in the
same forum.

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