Consolidated Environmental Management, Inc. et al v. U.S. Environmental Protection Agency, No. 2:2016cv01432 - Document 28 (E.D. La. 2016)

Court Description: ORDER & REASONS granting 16 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Sarah S. Vance on 11/22/2016. (mmm)

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Consolidated Environmental Management, Inc. et al v. U.S. Environmental Protection Agency Doc. 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA CONSOLIDATED ENVIRONMENTAL MANAGEMENT, INC. AND NUCOR STEEL LOUISIANA, LLC VERSUS CIVIL ACTION NO. 16-1432 REGINA MCCARTHY, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY SECTION “R” (1) ORD ER AN D REASON S Defendant Regina McCarthy, adm inistrator of the Environm ental Protection Agency (EPA), m oves to dism iss Nucor Steel Louisiana, LLC’s claim for lack of subject m atter jurisdiction. 1 For the following reasons, the EPA’s m otion is GRANTED. I. BACKGROU N D Plaintiffs are Consolidated Environm ental Managem ent, Inc. and Nucor Steel Louisiana, LLC. Nucor operates pig iron and direct reduced iron (DRI) m anufacturing facilities near the town of Convent, St. J ames Parish, 1 R. Doc. 16. Dockets.Justia.com Louisiana. In conjunction with the construction and operation of these facilities, Nucor received various perm its from the Louisiana Department of Environm ental Quality (LDEQ), including Louisiana Prevention of Significant Deterioration perm its and Louisiana Title V perm its for both pig iron and DRI. These perm its are authorized under the Clean Air Act, and LDEQ has been approved by the EPA to adm inister these perm itting program s. See 42 U.S.C. § 7661a(d); 40 C.F.R. § Pt. 70 , App. A. On J anuary 27, 20 11, LDEQ issued Nucor a Title V perm it for the DRI processing facility and m odified a previous perm it for the pig iron processing facility. 2 Consistent with LDEQ regulations, LDEQ also issued PSD perm its for both the DRI and pig iron facilities concurrently with the Title V perm its. 3 The PSD perm its have since been m odified. 4 The EPA did not object to these perm its pursuant to 42 U.S.C. § 7661d(b)(1). 5 On May 3, 20 11, the Zen-Noh Grain Corporation, the Louisiana Environm ental Action Network (“LEAN”), and the Sierra Club petitioned the EPA to object to the DRI perm its. 6 On March 24, 20 12, the EPA granted in 2 R. Doc. 1 at 7 ¶ 20 . This m odified perm it, Title V perm it No. 2560 -0 0 281-V1 was stayed the same day it was issued. R. Doc. 16-4 at 2. 3 R. Doc. 1 at 7 ¶ 21. 4 Id. at ¶ 22. 5 Id. at 8 ¶ 27. 6 Id. at 9 ¶¶ 36-37. 2 part Zen-Noh’s petition (“20 12 Order”). 7 On J une 21, 20 12, LDEQ subm itted a response to the 20 12 Order. The EPA treated this response as a new proposed perm it subject to petitions for an objection under section 7661d(b)(2). 8 The Sierra Club and LEAN subm itted a new petition to the EPA asking it to object to LDEQ’s response, which the EPA denied in part on J une 19, 20 13 (“20 13 Order”). 9 The EPA did not address all of the issues raised by Sierra Club and LEAN in the 20 13 Order, but addressed the rem aining issues in its J anuary 30 , 20 14 order (“20 14 Order”). 10 The 20 14 Order granted the petitions in part and denied them in part. 11 LDEQ subm itted a response to the 20 14 Order, and consistent with its previous practice, EPA treated this response as a new proposed perm it. 12 On February 19, 20 16, Nucor filed this citizen suit alleging that the EPA failed to take nondiscretionary actions and/ or unreasonably delayed taking m andatory actions as required by the Clean Air Act, and violated the 7 Id. at ¶ 40 . Id. at 12-13 ¶¶ 54-55. Zen-Noh then brought suit against the EPA alleging that EPA failed to perform a nondiscretionary duty under the Clean Air Act by not term inating, m odifying, or revoking Nucor’s perm its pursuant to 42 U.S.C. §7661d(b)(2) and (c). This Court rejected Zen-Noh’s argument, finding that the challenged actions were discretionary. See Zen-N oh Grain Corp. v. Jackson, 943 F. Supp. 2d. 657, 660 (E.D. La. 20 13). 9 R. Doc. 16-2 at 6. 10 R. Doc. 1 at 14 ¶ 65. 11 Id. 12 R. Doc. 16-2 at 7. 3 8 Adm inistrative Procedure Act by issuing orders that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 13 Plaintiffs seek an order vacating the EPA’s 20 12 and 20 14 Orders. They also seek a declaratory judgm ent stating what actions the EPA can and cannot take, and establishing that Nucor’s four perm its are valid, enforceable, and free and clear of any continuing EPA objection. 14 In response, the EPA has filed this m otion to dism iss for lack of subject m atter jurisdiction. 15 Nucor filed a response in opposition to the EPA’s m otion, 16 and the EPA replied. 17 II. LEGAL STAN D ARD Federal courts are courts of lim ited jurisdiction and possess power over only those cases authorized by the United States Constitution and federal statutes. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). If a district court lacks jurisdiction over the subject m atter of a plaintiff’s claim s, dism issal is required. See Fed. R. Civ. P. 12(b)(1). In ruling on a Rule 12(b)(1) m otion to dism iss, the court m ay rely on (1) the com plaint alone, presum ing the allegations to be true, (2) the com plaint supplem ented by undisputed facts, 13 14 15 16 17 R. Doc. 1 at 3. R. Doc. 1 at 24-25. R. Doc. 16. R. Doc. 20 . R. Doc. 27. 4 or (3) the com plaint supplemented by undisputed facts and by the court’s resolution of disputed facts. Den N orske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420 , 424 (5th Cir. 20 0 1); 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. Ram m ing v. United States, 281 F.3d 158, 161 (5th Cir. 20 0 1). A court’s dism issal of a case for lack of subject m atter jurisdiction is not a decision on the merits, and the dism issal does not ordinarily prevent the plaintiff from pursuing the claim in another forum . See Hitt v. City of Pasadena, 561 F.2d 60 6, 60 8 (5th Cir. 1977). A rule 12(b)(1) m otion is analyzed under the sam e standard as a motion to dism iss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 20 0 8). To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead enough facts “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). 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 m isconduct alleged.” Iqbal, 556 U.S. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor 5 of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 239 (5th Cir. 20 0 9); 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, 556 U.S. at 678. III. TH E CLEAN AIR ACT This case arises under the Clean Air Act (CAA), 42 U.S.C. §§ 740 1– 7671q (20 0 6). The CAA aim s to “protect and enhance the quality of the Nation’s air resources so as to prom ote the public health and welfare and the productive capacity of its population.” Id. § 740 1(b)(1). In pursuit of this goal, the CAA provides a role for the EPA, the states, and public citizens them selves. The following is a brief overview of the respective roles of these three players. The EPA sets national am bient air quality standards (NAAQS) for certain air pollutants. Id. § 740 9(a)(1). The states subm it plans to the EPA for achieving and m aintaining these standards. Id. § 740 7(a). State governors also designate areas within their states as: (1) nonattainm ent, if the area does not m eet the standards; (2) attainm ent, if the area m eets the standards; and (3) unclassifiable, if the area cannot be classified on the basis 6 of available information. Id. § 740 7(d). The facilities at issue in this case are located in an area designated as attainm ent 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 em it air pollution in excess of certain thresholds to obtain a perm it prescribing its em ission lim itations before it begins constructing or m odifying a m ajor stationary em ission source. Id. §§ 7475(a), 7479(1). As to facility operations, Title V of the CAA im plem ents a nationwide system of operating perm its. Title V m akes it unlawful to operate m ajor sources of air pollution “except in com pliance with a perm it issued by a perm itting authority.” Id. § 7661a(a); see also Rom oland Sch. Dist. v. Inland Em pire Energy Ctr., LLC, 548 F.3d 738, 741-42 (9th Cir. 20 0 8). A perm itting authority is the “air pollution control agency authorized by [the EPA] to carry out a perm it 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. 20 0 8). The relevant perm itting authority for this case is the Louisiana Department of Environm ental Quality. While the state and local perm itting authorities issue perm its, the EPA can review proposed perm its and object to them if “any perm it contains 7 provisions that are . . . not in com pliance” with law. 42 U.S.C. § 7661d(a)(1), (b)(1). If the EPA does not object, any person m ay petition the Adm inistrator to object. Id. § 7661d(b)(2). The Adm inistrator m ust object to the perm it if the petitioner “demonstrates to the Adm inistrator that the perm it is not in com pliance with the [CAA’s] requirements.” Id. If the EPA objects to an already-issued perm it, the “Adm inistrator shall m odify, term inate, or revoke such perm it and the perm itting authority m ay thereafter only issue a revised perm it.” Id. § 7661d(b)(3). If the perm itting authority fails to subm it a revised perm it within 90 days of an objection, the “Adm inistrator shall issue or deny the perm it in accordance with the requirem ents of this subchapter.” Id. § 7661d(c). Notably, “no objection shall be subject to judicial review until the Adm inistrator takes final action to issue or deny a perm it under this subsection.” Id. IV. D ISCU SSION Nucor’s complaint asserts that the EPA failed to take nondiscretionary action in the form of either m odifying, term inating, or revoking the perm its in question, and/ or that EPA has unreasonably delayed in taking m andatory action. The EPA responds that one of the perm its that Nucor seeks to have this Court declare valid has since expired and has been replaced, m aking that 8 claim m oot. Additionally, the EPA argues that Nucor has not established standing, and that the citizen suit provision in the Clean Air Act does not provide jurisdiction over Nucor’s claim s to relief. Because this Court concludes that it lacks jurisdiction over the substance of Nucor’s com plaint, it does not reach EPA’s standing or mootness argum ents. A. So ve re ign Im m u n ity Suits against officials of the United States in their official capacities, including the EPA Adm inistrator, are barred if there is no waiver of sovereign im m unity. Haw aii v. Gordon, 373 U.S. 57, 58 (1963). Nucor alleges that jurisdiction is proper based on the waiver of im m unity in the citizen suit provision of the Clean Air Act, which states: The district courts shall have jurisdiction . . . to order the Adm inistrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties (except for actions under paragraph (2)). The district courts of the United States shall have jurisdiction to com pel (consistent with paragraph (2) of this subsection) agency action unreasonably delayed, except that an action to com pel agency action referred to in section 760 7(b) of this title which is unreasonably delayed m ay only be filed in a United States District Court within the circuit in which such action would be reviewable under section 760 7(b) of this title. 42 U.S.C. § 760 4. Nucor also alleges that the Court has jurisdiction under the Adm inistrative Procedure Act, which also gives federal courts the power to review final agency action and to com pel agency action unreasonably 9 delayed. 5 U.S.C. §§ 70 4, 70 6. Alternatively, Nucor relies on caselaw and the All Writs Act to argue that the Court has jurisdiction over its claim s. 1. Clean Air Act The Court will consider Nucor’s argument under the Clean Air Act first. In its com plaint, Nucor brings two claim s under the Clean Air Act. First, it alleges that in failing to “m odify, term inate, or revoke” the objected-to perm its under 42 U.S.C. § 7661d(b)(3), or “issue or deny” the perm its under 42 U.S.C. § 7661d(c), the EPA has (1) failed to take nondiscretionary action, and (2) has unreasonably delayed in taking m andatory action. 42 U.S.C. § 760 4. This Court has already found that the EPA’s duty to “m odify, term inate, or revoke” is discretionary, and therefore an action to com pel the EPA to m odify, term inate, or revoke the perm its in question does not fall within the scope of the citizen suit provision’s waiver of sovereign im m unity. See Zen-Noh, 943 F. Supp. 2d at 660 . This is because the EPA’s duty to “m odify, term inate, or revoke” has no statutory deadline, and because the regulatory fram ework of the Clean Air Act provides the EPA with discretion over when it acts. 18 Id. at 661. The sam e is true with respect to the EPA’s 18 To be clear, in finding that the action is discretionary, this Court is not concluding that the action is not m andatory. On the contrary, “shall does m ean shall,” but the existence of a m andatory obligation does not m ake it nondiscretionary for the purpose of section 760 4(a)(2). Zen-N oh, 943 F. Supp. 2d at 665. 10 duty to “issue or deny” perm its under 42 U.S.C. § 7661d(c), which is also discretionary. In addition, to the extent that Nucor asks this Court to review EPA’s objections to its perm its, the Fifth Circuit has established that the EPA’s objections are not final agency action, and therefore judicial review of the objections is barred by the plain language of 42 U.S.C. § 7661d(c). See 42 U.S.C. § 7661d(c) (“No objection shall be subject to judicial review until the Adm inistrator takes final action to issue or deny a perm it under this subsection.”); Louisiana Dept. of Env. Quality v. EPA, 730 F.3d 446, 449 (5th Cir. 20 13) (holding that “[b]ecause the EPA has not ‘take[n] final action to issue or deny a perm it under [title V],’ § 7661d(c) bars judicial review of the Objection”) (citation om itted). Although Nucor’s second claim , its “unreasonable delay” claim , is within the am bit of the Court’s authority under the citizen suit provision, the Court has no authority to grant the relief Nucor requests. Nowhere does Nucor ask this Court to order the EPA to take an action that has been unreasonably delayed. Instead, Nucor seeks an order vacating the EPA’s objections to its perm its. It also seeks a declaratory judgm ent stating how the EPA should conduct the objection process under 42 U.S.C. § 7661d and holding that Nucor’s four perm its are “valid, enforceable, and free and clear 11 of any continuing EPA objection.”19 The citizen suit provision does not confer jurisdiction to grant this relief. See Sierra Club v. Brow ner, 130 F. Supp. 2d. 78, 89 (D.D.C. 20 0 1). This Court does not have jurisdiction to vacate the EPA’s objections, Louisiana Dept. of Env. Quality , 730 F.3d at 449, or to order the EPA to take discretionary actions in relation to Nucor’s perm its. 20 Zen-N oh, 943 F. Supp. 2d at 660 -61. Courts have consistently held that the citizen suit provision in the Clean Air Act authorizes no relief “beyond ‘order[ing] the Adm inistrator to perform [a non-discretionary] act or duty [or] compel[ing] . . . agency action unreasonably delayed.’” Brow ner, 130 F. Supp. 2d. at 89 (quoting 42 U.S.C. § 760 4(a)); see also, e.g., Sierra Club v. Johnson, 444 F. Supp. 2d 46, 60 (D.D.C. 20 0 6). This m eans that the Clean Air Act restricts a district court’s authority to “address the content of EPA’s conduct, to issue substantive determ inations of its own, or grant other forms of declaratory relief.” Brow ner, 130 F. Supp. 2d at 90 ; Johnson, 444 F. Supp. 2d at 60 . Here, the 19 R. Doc. 1 at 24-25. To the extent that Nucor is suggesting that EPA’s objections are an unconstitutional deprivation of Nucor’s perm its without due process, Nucor does not explain how these objections or anything done by the EPA could am ount to a constitutional deprivation, especially considering that the perm its are currently valid. Nevertheless, even if Nucor intended to allege a due process claim , it does not plead enough facts to state a plausible claim . Iqbal, 556 U.S. at 678 (20 0 9). 20 12 declaratory relief that Nucor seeks would necessarily require the Court to assess the substance of the EPA’s actions or inactions, a review that is expressly reserved for the appropriate court of appeals under 42 U.S.C. § 760 7(b). 2. Adm inistrative Procedure Act Nucor also alleges that the Court has jurisdiction under the Adm inistrative Procedure Act, which also gives federal courts the power to review final agency action and to com pel agency action unreasonably delayed. 5 U.S.C. §§ 70 4, 70 6. But the APA m akes clear that it does not “affect[] other lim itations on judicial review” or “confer[] authority to grant relief if any other statute that grants consent to suit expressly or im pliedly forbids the relief which is sought.” Id. § 70 2; see also Bow en v. Massachusetts, 487 U.S. 879, 90 3 (1988) (noting that Congress did not intend the APA to “duplicate the [] established special statutory procedures relating to” review of agency action). Here, the waiver of sovereign im m unity in section 760 4 of the Clean Air Act provides an adequate rem edy for Nucor’s claim s, and section 7661d(c) provides “other lim itations on judicial review,” which foreclose review in this context. Louisiana Dept. of Env. Quality , 730 F.3d at 449; see discussion supra. Therefore, this Court does not have jurisdiction over Nucor’s claim s under the APA. 13 See Environm ental Integrity Project v. EPA, 160 F. Supp. 3d 50 , 54 (D.D.C. 20 15); see also 5 U.S.C. § 70 4 (noting that review under the APA is lim ited to “agency action . . . for which there is no other adequate rem edy in a court”) (emphasis added); Louisiana Dept. of Env. Quality , 730 F.3d at 449 (finding that § 7661d(c) of the Clean Air Act bars judicial review under the APA). Nucor’s argument that the Supreme Court decision in Sackett v. EPA, 132 S. Ct. 1367 (20 12), suggests that jurisdiction exists under the APA is unavailing. In Sackett, the Court found that an EPA com pliance order under the Clean Water Act that subjected landowners to daily fines was a “final agency action” with no other adequate remedy in a court, thus allowing review under the APA. 132 S. Ct. at 1371-72. Here, not only does Nucor have an adequate remedy via the Clean Air Act citizen suit provision, but also, as explained above, it is also not challenging any final agency action. See Lum inant Generation Co., L.L.C. v. EPA, 757 F.3d 439, 443 (5th Cir. 20 14) (distinguishing Sackett from Clean Air Act case that did not challenge final agency action). Therefore, the Court does not have jurisdiction under the APA to address Nucor’s claims. 3. N onstatutory Review Nucor’s arguments that two other decisions, Leedom v. Ky ne, 358 U.S. 184 (1958), and Larson v. Dom estic & Foreign Com m erce Corp., 337 U.S. 14 682 (1949), support a finding of jurisdiction are sim ilarly unpersuasive. Ky ne allows for district court review that is otherwise precluded when an agency acts beyond its authority in denying a statutorily created right, and absent review by the district court, plaintiffs have no other m eans to protect and enforce that right. Bd. of Governors of Fed. Reserve Sy s. v. MCorp Fin., Inc., 50 2 U.S. 32, 43 (1991). This argum ent fails because, as stated earlier, Nucor has another m eans to protect and enforce its rights (the Clean Air Act’s citizen suit provision). Additionally, as the Supreme Court in MCorp, supra, points out, Ky ne does not apply when Congress m akes clear (as it has done in the Clean Air Act) that judicial review is lim ited. Id. at 44. Furtherm ore, Larson, which allows for the denial of sovereign im m unity to a federal official alleged to have com m itted unlawful conduct, does not give this Court jurisdiction. Larson is lim ited to cases seeking relief from individual officers, and is therefore not applicable to this case, where plaintiffs seek to restrain not only Adm inistrator McCarthy, but also, the actions of the EPA itself. Larson, 337 U.S. at 688 (noting that when suits seek to restrain the actions of governm ent agencies, they are “barred, not because it is a suit against an officer of the Government, but because it is, in substance, a suit against the Governm ent over which the court, in the absence of consent, has no jurisdiction”). 15 4. All W rits Act Nucor also argues that the Court has authority under the All Writs Act, 28 U.S.C. §1651(a), to hear its claims and grant its requested relief. The All Writs Act authorizes the Court to grant “all writs necessary or appropriate in aid of [its] jurisdiction[] and agreeable to the usages and principles of law.” Id. The All Writs Act does not avail plaintiffs here for two reasons. First, the All Writs Act does not create or enlarge jurisdiction, and does not allow this Court to provide relief that is outside the Court’s jurisdiction. See, e.g., Singh v. Duane Morris LLP, 538 F.3d 334, 341 (5th Cir. 20 0 8). As the Court lacks jurisdiction under the Clean Air Act to grant the relief Nucor requests, the All Writs Act is not applicable. Second, the authority granted in the All Writs Act is an “extraordinary remedy,” which should not be issued unless the issuing court is satisfied that it is appropriate under the circumstances. Cheney v. U.S. Dist. Court for Dist. of Colum bia, 542 U.S. 367, 380 (20 0 4); State of La. v. Geason, No. 0 0 -144, 20 0 0 WL 7820 67, at *2 (E.D. La. J une 16, 20 0 0 ) (quoting ITT Com m unity Developm ent Corp. v. Barton, 569 F.2d 1351, 1358-59 (5th Cir. 1978)). This case does not warrant this extraordinary remedy. 16 V. CON CLU SION For all of the foregoing reasons, Nucor’s claim s are dismissed. The EPA’s m otion to dism iss is GRANTED. New Orleans, Louisiana, this _ 22nd_ day of November, 20 16. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 17

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