Who Gets to Review EPA Actions? The Court of Appeals? The District Court? (Hint: The Answer Is Not “Neither One”)


The general rule under the Clean Air Act is that any:

person may bring suit in district court against the EPA Administrator for an alleged failure to perform a nondiscretionary act or duty, and the district court has jurisdiction “to order the Administrator to perform such act or duty,” as well as to “compel . . . agency action unreasonably delayed.” By contrast, “judicial review of final action by the EPA Administrator rests exclusively in the appellate courts.

The subject of the decision last Friday by the District Court for the District of Columbia in Sierra Club v. McCarthy was which court gets to review EPA’s response to an order that it perform a non-discretionary duty. The Sierra Club sued EPA for failure to issue standards under section 112(c)(6) of the CAA for seven air pollutants. EPA did not contest liability. The court eventually issued an order to EPA to promulgate the standards. After numerous delays, EPA issued a “Determination” that it had in fact promulgated the standards.

The Sierra Club challenged the Determination in the Court of Appeals, which held that the Determination was itself a rulemaking and vacated the Determination for lack of notice and comment. EPA did not promulgate the Determination with notice and comment and informed the District Court that it did not intend to take any further action. The Sierra Club then filed a motion in the District Court to enforce that Court’s original order to EPA to issue the standards.

EPA argued that the District Court did not have jurisdiction, arguing that the:

Sierra Club simply is dissatisfied with the substance of the standards that EPA has issued, and that Sierra Club asks the Court to intrude into the exclusive jurisdiction of the court of appeals.

The District Court wasn’t having any of it. Since EPA took no further action on the Determination and never issued anything subject to notice and comment, there was nothing for the Court of Appeals to review. The District Court concluded that EPA had never issued any reviewable finding that it had in fact promulgated the standards at issue. It thus further concluded that EPA had never complied with its original order. The result?

the Court directs EPA to initiate a process of notice and comment rulemaking before it reissues or, after consideration of the comments submitted, reconsiders or modifies its Determination. Any such final action must include a statement explaining its basis, and EPA also must respond to the comments that it receives.

Courts really don’t like being told that they don’t have authority to enforce their own orders.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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