Ctr. For Biological Diversity v. United States Envtl. Prot. Agency, Civil Action No. 10–00985 (HHK).

794 F.Supp.2d 151

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Lisa Jackson, Administrator of the Environmental Protection Agency, Defendants.

Civil Action No. 10–00985 (HHK).

United States District Court, District of Columbia.

July 5, 2011.

Daniel Galpern, Eugene, OR, J. Martin Wagner, Sarah Helen Burt, Earthjustice, Oakland, CA, for Plaintiffs.Angeline Purdy, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

HENRY H. KENNEDY, JR., District Judge.

Plaintiffs Center for Biological Diversity, Center for Food Safety, Friends of the Earth, International Center for Technology Assessment, and Oceana (collectively, “plaintiffs”) bring this action against the U.S. Environmental Protection Agency and its Administrator, Lisa Jackson (together, “EPA”), seeking to compel agency action with regard to the regulation of emissions by nonroad vehicles and engines, including marine vessels and aircraft, under the Clean Air Act (“the Act”), 42 U.S.C. § 7401 et seq. Before the Court is EPA's motion to dismiss in part [# 9], which argues that three of plaintiffs' four claims fail to state a claim for relief and are beyond the Court's jurisdiction. Upon consideration of the motion, the opposition thereto, and the record of this case, the Court concludes that the motion must be granted in part and denied in part.

I. BACKGROUND

A. The Clean Air Act

The Clean Air Act gives EPA the authority to regulate “air pollutants,” a category that it defines very broadly. See 42 U.S.C. § 7602(g); Massachusetts v. EPA, 549 U.S. 497, 506–09, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (describing the history of the Act and efforts to address climate change). Here, plaintiffs' claims relate to two of the Act's air-quality provisions: section 213 and section 231. Section 213 deals with emissions from nonroad engines and vehicles, and provides in part that “[i]f the [EPA] Administrator determines that any emissions ... from new nonroad engines or vehicles significantly contribute to air pollution which may reasonably be anticipated to endanger public health or welfare, the Administrator may promulgate (and from time to time revise) such regulations as the Administrator deems appropriate....” 42 U.S.C. § 7547(a)(4). Section 231 provides in relevant part that EPA “shall, from time to time, issue proposed emission standards applicable to the emission of any air pollutant from any class or classes of aircraft engines which in [its] judgment causes, or contributes to, air pollution which may reasonably be anticipated to endanger public health or welfare.” Id. § 7571(a)(2)(A). These determinations that certain emissions cause or contribute to dangerous air pollution are commonly referred to as endangerment findings.

B. Plaintiffs' Petitions and this Suit

Between October 2007 and January 2008, plaintiffs submitted three petitions to EPA, asking it to use its authority under the provisions described above to regulate greenhouse gas emissions from marine vessels, aircraft, and other nonroad vehicles. Compl. ¶¶ 48–50. EPA subsequently issued an Advance Notice of Proposed Rulemaking regarding greenhouse gas emissions, see Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44,354 (July 30, 2008), but plaintiffs assert that it was not responsive to their petitions because it neither determined whether greenhouse gas emissions from these sources endanger public health or welfare nor established a plan for regulating such emissions. Compl. ¶¶ 55–59. Accordingly, as required by the Act, see 42 U.S.C. § 7604(a), plaintiffs sent letters to EPA announcing their intention to file suit, see Def.'s Mem. Ex. A (“Earthjustice Notice Letter”), Ex. B (“WELC Notice Letter”), and then commenced this action.¹

Plaintiffs' complaint presents four claims under 42 U.S.C. § 7604(a), which allows district courts “to compel ... agency action unreasonably delayed,” each alleging a specific unreasonable delay on the part of EPA: (1) failure to respond to plaintiffs' October 2007, December 2007, and January 2008 petitions, Compl. ¶¶ 70–71; (2) failure to determine whether emissions of greenhouse gases and black carbon from marine vessels cause or contribute to dangerous air pollution, Compl. ¶¶ 72–74; (3) failure to determine whether emissions of greenhouse gases and black carbon from nonroad vehicles and engines cause or contribute to dangerous air pollution, Compl. ¶¶ 75–77; and (4) failure to determine whether emissions of greenhouse gases and black carbon from aircraft engines cause or contribute to dangerous air pollution. Compl. ¶¶ 78–80. EPA now moves to dismiss claims two, three, and four.

II. LEGAL STANDARDS

A. Lack of Subject–Matter Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or a portion thereof, for lack of subject-matter jurisdiction. FED. R. CIV. P. 12(b)(1); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ( “Federal courts are courts of limited jurisdiction.... It is to be presumed that a cause lies outside this limited jurisdiction....”). In response to such a motion, the plaintiff must establish that the Court has subject-matter jurisdiction over the claims in the complaint. See 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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing Ex parte McCardle, 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868)). When resolving a motion made under Rule 12(b)(1), a court may consider material beyond the allegations in the plaintiff's complaint. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253–54 (D.C.Cir.2005).

B. Failure to State a Claim Upon Which Relief May Be Granted

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), the Court will dismiss a complaint, or a portion thereof, that fails to plead “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, although a complaint need not contain detailed factual allegations, it must recite facts sufficient to at least “raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555, 127 S.Ct. 1955. A “pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955) (alterations in original). At bottom, a complaint must contain sufficient factual matter that, accepted as true, would allow the Court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

III. ANALYSIS

EPA seeks the dismissal of claims two, three, and four (which the Court will call the “determination claims”) on two grounds: first, that plaintiffs' notice of intent to sue encompassed only claim one and not the remaining claims; and second, that plaintiffs have not identified an enforceable obligation that EPA has failed to meet. Because EPA's notice argument goes to the Court's jurisdiction, the Court addresses it first. See Steel Co., 523 U.S. at 94–95, 118 S.Ct. 1003.

A. Notice of Intent to Sue

The Act's “citizen suit” provision, 42 U.S.C. § 7604, provides that the “district courts of the United States shall have jurisdiction to compel ... agency action unreasonably delayed.” Id. § 7604(a). It also provides that, “[i]n any such action for unreasonable delay, notice to the [EPA] shall be provided 180 days before commencing such action.” Id. Notice-and-delay requirements of this type are “mandatory conditions precedent to commencing suit.” Hallstrom v. Tillamook Cnty., 493 U.S. 20, 31, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) (construing near-identical language in the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6972). When suit is filed against a government agency, these requirements are, as conditions on the government's waiver of sovereign immunity, jurisdictional. Conservation Force v. Salazar, 715 F.Supp.2d 99, 102–03 (D.D.C.2010); see Hercules Inc. v. United States, 516 U.S. 417, 422, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) (“[T]he terms of [the government's] consent to be sued in any court define that court's jurisdiction to entertain the suit.” (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)) (internal quotation marks omitted)).

Here, EPA contends that plaintiffs' notices of intent to sue announced only their intention to challenge EPA's failure to respond to their petitions, and not also its failure to reach the endangerment findings sought by those petitions. EPA thus argues that the Court has no jurisdiction over claims two, three, and four, which relate to those findings. Plaintiffs respond that the notices adequately broadcast their intention to file all of the claims in this action. The Court agrees with plaintiffs.

The Act itself does not define or qualify the term “notice.” See 42 U.S.C. § 7604. EPA's regulations require a notice of intent to sue under the Act to “identify the provisions of the Act which requires [the act or duty alleged, and] ... describe with reasonable specificity the action taken or not taken by the Administrator which is claimed to constitute a failure to perform such act or duty.” 40 C.F.R. § 54.3(a). Here, plaintiffs have done both.

Plaintiffs' notice came in the form of two letters sent to EPA...