Sierra Club v. Andrew Wheeler

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 3, 2019 Decided April 17, 2020

No. 18-5328

SIERRA CLUB,

APPELLANT

v.

ANDREW WHEELER, ADMINISTRATOR, U.S. ENVIRONMENTAL

PROTECTION AGENCY, IN HIS OFFICIAL CAPACITY ,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-02461)

Gordon E. Sommers argued the cause for appellant. With

him on the briefs was James S. Pew.

Robert J. Lundman, Attorney, U.S. Department of Justice,

argued the cause for appellee. With him on the brief were

Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant,

Deputy Assistant Attorney General, and James A. Maysonett,

Attorney.

Before: HENDERSON, WILKINS and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

2

Concurring opinion filed by Circuit Judge WILKINS.

KAREN LECRAFT HENDERSON , Circuit Judge: The Clean

Air Act (CAA) directs the Environmental Protection Agency

(EPA) to periodically issue emission guidelines for solid waste

incinerators. When the EPA issues such guidelines, States have

one year to submit to the EPA Administrator (Administrator) a

plan to ensure incinerators within their jurisdictions comply

with the guidelines. But the CAA’s federal scheme cannot be

undone by a noncompliant State and, should a State fail to

submit a plan within two years of the guidelines’ issuance, the

CAA directs the Administrator to impose a federal plan in that

State.

The EPA issued guidelines for two categories of solid

waste incinerator well over two years ago and the

Administrator has not imposed a federal plan on noncompliant

States. Sierra Club filed a complaint in district court under the

CAA’s citizen-suit provision, seeking to compel the

Administrator’s action. The district court determined that the

Administrator does not have a nondiscretionary duty to impose

a federal plan on a noncompliant State and dismissed the claim

for lack of subject matter jurisdiction. We affirm for the

reasons set forth infra.

I

Toxic pollutants discharged by solid waste incinerators

harm the environment and threaten human health. See Davis

Cty. Solid Waste Mgmt. v. EPA, 101 F.3d 1395, 1397 (D.C. Cir.

1996) (“Combustion . . . results in the emission of various air

pollutants, such as acid gases, organics, metals, nitrogen oxides

and ash, some of which are considered to be carcinogens or to

have other adverse effects when inhaled.”). Section 129 of the

Clean Air Act (CAA), 42 U.S.C. § 7429, therefore requires the

3

Administrator to “establish performance standards” for air

pollutants discharged by different categories of solid waste

incinerators. CAA § 129(a)(1)(A). At issue here are

commercial or industrial solid waste incinerators (CISWI),

id. § 129(a)(1)(D), and incinerators falling within the statute’s

catch-all for “other” categories of solid waste (OSWI),

id. § 129(a)(1)(E). The EPA last revised its CISWI emission

standards in 2013 in an action aimed to eliminate 34,771 tons

of pollution annually, 78 Fed. Reg. 9112, 9131 (Feb. 7, 2013),

and OSWI emission standards were last updated in 2005, 70

Fed. Reg. 74,870 (Dec. 16, 2005).

To implement these standards, the CAA distinguishes

between “new” and “existing” sources. Compare CAA

§ 129(a), with id. § 129(b). For new incinerators,

implementation of the performance standards is

straightforward—any unit built or modified after the standards

are promulgated must comply with them. Id. § 129(a)(2). More

complicated is bringing existing incinerators—i.e., the large

majority of regulated units neither constructed nor modified

after the standards took effect, id. § 129(g)(4)—into

compliance with new emission standards. See Federal Plan

Requirements for Other Solid Waste Incineration Units

Constructed on or Before December 9, 2004, 71 Fed. Reg.

75,816 (proposed Dec. 18, 2006); Federal Plan Requirements

for Commercial and Industrial Solid Waste Incineration Units,

82 Fed. Reg. 3554 (proposed Jan. 11, 2017).

Initially, the CAA requires the Administrator to, inter alia,

establish emission guidelines for existing incinerators. CAA

§ 129(b)(1). The burden then shifts to the States, which must

submit to the Administrator “a plan to implement and enforce

the guidelines with respect to” existing incinerators “[n]ot later

that [one] year after” guidelines are promulgated.

Id. § 129(b)(2). A State plan must be “at least as protective as

4

the guidelines” and must ensure that all existing incinerators in

the State comply with the guidelines “not later than [three]

years after the State plan is approved by the Administrator but

not later than [five] years after the guidelines were

promulgated.” Id. “The Administrator shall approve or

disapprove any State plan within 180 days of the submission,

and if a plan is disapproved, the Administrator shall state the

reasons for disapproval in writing.” Id. Thus, once the EPA

issues guidelines: 1) each State has one year in which to submit

an implementation plan for the Administrator’s approval; 2) a

State’s plan must be at least as protective as the guidelines;

3) the Administrator has 180 days to approve the State plan;

and 4) the State plan must be tailored to meet a specific

timeline.

This case involves the Administrator’s duties in the event

a State fails to comply with § 129(b)(2). If this happens, the

Administrator must “develop, implement and enforce” a plan

to bring existing units into compliance with the guidelines.

Id. § 129(b)(3). The Administrator’s “federal plan” often

mirrors the guidelines, i.e., a State that fails to create its own

plan usually ends up with the EPA’s guidelines imposed on it.

See, e.g., 82 Fed. Reg. at 3559 (“The emissions limits in this

proposed CISWI Federal Plan are the same as those contained

in the final CISWI [emission guidelines].”); 71 Fed. Reg. at

75,820 (“The emission limitations in this proposed OSWI

Federal plan are the same as those contained in the [emission

guidelines].”).

To date, the Administrator has yet to impose a federal plan

upon any State that failed to submit an implementation plan

following issuance of either the 2013 CISWI guidelines or the

2005 OSWI guidelines. In response, Sierra Club filed a

complaint in district court under the CAA’s citizen-suit

provision, CAA § 304, 42 U.S.C. § 7604, “to compel the

5

Administrator . . . to protect public health and the environment

from the hazardous emissions of” CISWI and OSWI.

Compl. for Declaratory and Injunctive Relief at ¶ 1, Sierra

Club v. McCarthy, No. 16-2461 (D.D.C. Dec. 16, 2016), ECF

No. 1. Sierra Club’s complaint suggests in passing that the

Administrative Procedure Act (APA) also supports its claim.

See id. at ¶ 3. Before the district court and now on appeal, Sierra

Club has increasingly relied on this argument, see Appellant’s

Br. 1, 23, 32, and we therefore reach it in Section III infra. The

district court “dismiss[ed] for lack of subject matter jurisdiction

Sierra Club’s claims that [§ 129(b)(3)] imposes

nondiscretionary duties on EPA to ‘develop, implement and

enforce’ federal implementation plans for the 2013 CISWI

Standards and the 2005 OSWI Standards” because the claims

fell outside an applicable waiver of sovereign immunity. Sierra

Club v. Wheeler, 330 F. Supp. 3d 407, 423 (D.D.C. 2018). 1

Sierra Club timely appealed to us.

“Absent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit.” FDIC v. Meyer,

510 U.S. 471, 475 (1994). Because sovereign immunity is

“jurisdictional in nature,” we must assure ourselves that Sierra

Club's claims fall within a valid waiver of sovereign immunity

before allowing the suit to proceed. Id. We have jurisdiction

under 28 U.S.C. § 1291. We review the district court’s

dismissal for lack of subject matter jurisdiction de novo. See

Am. Hosp. Ass’n v. Azar, 895 F.3d 822, 825 (D.C. Cir. 2018).

1

Sierra Club also alleged that the Administrator “missed the

statutory deadline to review, and . . . revise EPA’s standards for

OSWI units.” Compl. ¶ 1. The district court granted summary

judgment to Sierra Club on this issue, Sierra Club, 330 F. Supp. 3d

at 423, and the “EPA has not appealed from this part of the court’s

order,” Appellee’s Br. 7.

6

II

The CAA’s citizen-suit provision, CAA § 304,

“empower[s]” “private citizens . . . to enforce emission

standards by filing suit in district court.” U.S. Sugar Corp. v.

EPA, 830 F.3d 579, 609 (D.C. Cir. 2016). Sierra Club’s suit

was brought under § 304(a)(2), Compl. ¶ 64, which is a

conditional waiver of sovereign immunity.2 It gives the district

court jurisdiction over a claim “against the Administrator

where there is alleged a failure of the Administrator to perform

any act or duty under this chapter which is not discretionary.”

CAA § 304(a)(2). A duty is nondiscretionary under the CAA if

it is “clear-cut” and requires the Administrator to act by a “date-

certain deadline.” Sierra Club v. Thomas, 828 F.2d 783, 791

(D.C. Cir. 1987). This interpretation of § 304(a)(2) is consistent

with the requirement that “a waiver of sovereign immunity

must be ‘unequivocally expressed’ in the statutory text” and

ambiguities “construed in favor of immunity.” FAA v. Cooper,

566 U.S. 284, 290 (2012) (citations omitted). The district court

held that the Administrator’s duty to act under § 129(b)(3) once

a state fails to submit a plan does not impose a date-certain

deadline. Accordingly, it concluded that it lacked subject

matter jurisdiction under the CAA because the duty in question

failed to qualify for § 304's conditional waiver of sovereign

immunity. Sierra Club, 330 F. Supp. 3d at 421. We agree.

2

We note that Sierra Club did not assert an unreasonable delay

claim under § 304(a). “To establish a claim of unreasonable delay,

petitioners must show that they have ‘a right the denial of which we

would have jurisdiction to review upon final agency action but the

integrity of which might be irreversibly compromised by the time

such review would occur.’” Mexichem Specialty Resins, Inc. v. EPA,

787 F.3d 544, 554 (D.C. Cir. 2015) (quoting Sierra Club v. Thomas,

828 F.2d 783, 796 (D.C. Cir. 1987)).

7

Because this case is one of statutory interpretation, “[a]s

always, our inquiry starts from ‘the fundamental canon that

statutory interpretation begins with the language of the statute

itself.’” Butler v. West, 164 F.3d 634, 639 (D.C. Cir. 1999)

(quoting Pa. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552,

557–58 (1990)). We must decide whether the Administrator’s

duty to “develop, implement and enforce a plan for existing

solid waste incineration units . . . located in any State which

has not submitted an approvable plan under this subsection

with respect to units in such category within [two] years after

the date on which the Administrator promulgated the relevant

guidelines,” CAA § 129(b)(3), is nondiscretionary under

Thomas. The answer hinges on the clause “within [two] years

after the date on which the Administrator promulgated the

relevant guidelines” and, specifically, what that clause refers

to.

“[T]he words of a statute must be read in their context and

with a view to their place in the overall statutory scheme.” Util.

Air Regulatory Grp. v. EPA, 573 U.S. 302, 320 (2014) (quoting

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

133 (2000)). Here, § 129(b)’s overall structure belies Sierra

Club’s reading of § 129(b)(3). Subsection 129(b) generally

addresses existing incinerators—subsection (b)(1) requires

emission standards to contain guidelines for existing

incinerators; subsection (b)(2) requires States to submit

enforcement plans for existing incinerators to the

Administrator; and subsection (b)(3) requires the

Administrator to develop a federal implementation plan for any

State that does not comply with subsection (b)(2). In context,

then, § 129(b)(2) sets out how a State is to respond when new

guidelines are promulgated; § 129(b)(3) is remedial, however,

in that it prevents State inaction from defeating the statutory

scheme.

8

Under § 129(b)(2), a State must “submit [an

implementation plan] to the Administrator” within one year of

new guidelines being promulgated and the Administrator then

has 180 days in which to approve or disapprove its plan. CAA

§ 129(b)(2). A State plan “shall provide that each unit subject

to the guidelines” complies with them “not later than [three]

years after” the Administrator approves the State plan and “not

later than [five] years after the guidelines were promulgated.”

Id. An existing unit, therefore, should comply with new

guidelines no later than four years and 180 days after guidelines

are promulgated but the statute provides some leeway by

rounding the upper limit to “not later than [five] years” after

the guidelines’ promulgation. Id.

At the same time, subsection 129(b)(3) fills the gap if State

inaction stymies § 129(b)(2)’s scheme:

The Administrator shall develop, implement

and enforce a plan for existing solid waste

incineration units within any category located in

any State which has not submitted an

approvable plan under this subsection with

respect to units in such category within [two]

years after the date on which the Administrator

promulgated the relevant guidelines. Such plan

shall assure that each unit subject to the plan is

in compliance with all provisions of the

guidelines not later than [five] years after the

date the relevant guidelines are promulgated.

Id. § 129(b)(3). The EPA reads the first sentence simply to

“identif[y] when States should have submitted an approvable

plan—namely, two years after guideline promulgation.”

Appellee’s Br. 22–23 (emphasis omitted). Sierra Club,

however, believes the Administrator has a date-certain deadline

9

of two years after guidelines are promulgated in which to

develop, implement and enforce a federal plan. See Appellant’s

Br. 33. Applying traditional tools of statutory interpretation, we

agree with the district court that the EPA’s reading is correct.

See Sierra Club, 330 F. Supp. 3d at 417–18.

In statutory construction, the rule of last antecedent

“provides that ‘a limiting clause or phrase . . . should ordinarily

be read as modifying only the noun or phrase that it

immediately follows.’” Lockhart v. United States, 136 S. Ct.

958, 962 (2016) (alteration in original) (quoting Barnhart v.

Thomas, 540 U.S. 20, 26 (2003)). The limiting phrase “within

[two] years after the date on which the Administrator

promulgated the relevant guidelines” modifies the phrase that

immediately precedes it—“any State which has not submitted

an approvable plan under this subsection with respect to units

in such category”—and nothing more. Under the ordinary

approach, therefore, § 129(b)(3) does not create a

nondiscretionary duty, i.e., one that is clear-cut and contains a

date-certain deadline when the Administrator must “develop,

implement and enforce” a federal plan.

Granted, “this ‘Rule of the Last Antecedent’ ‘is not an

absolute and can assuredly be overcome by other indicia of

meaning,’” Hays v. Sebelius, 589 F.3d 1279, 1281 (D.C. Cir.

2009) (quoting Barnhart, 540 U.S. at 26), but no such indicia

are present here. Sierra Club argues that § 129(b)(3)’s “context,

structure, purpose, and history,” Appellant’s Br. 34, suggest it

was intended to create an enforceable two-year deadline

because “[i]t makes little sense that Congress would have

carefully set deadlines for every other step in the process but

no deadline for this one,” id. at 35. But the inclusion of

deadlines elsewhere in § 129 does not determine whether

§ 129(b)(3) contains one and it “is highly improbable that a

deadline will ever be nondiscretionary, i.e. clear-cut, if it exists

10

only by reason of an inference drawn from the overall statutory

framework.” Thomas, 828 F.2d at 791. Moreover, to make any

sense, Sierra Club’s reading requires that the phrase “within

[two] years after the date on which the Administrator

promulgated the relevant guidelines” does not modify its last

antecedent. If “within [two] years” modifies everything before

it as would be expected if the last antecedent rule does not

apply, see, e.g., Am. Fed’n of Gov’t Emps., AFL-CIO, Local

3669 v. Shinseki, 709 F.3d 29, 34 (D.C. Cir. 2013) (“better

interpretation is that [phrase] modifies the entire description”),

the statute would require the EPA to wait to see which States

do not submit plans within two years and simultaneously

“develop, implement and enforce” a plan within the same two

years. This nonsensical reading is not a basis for departing from

the rule of last antecedent.

Because the district court determined that the

Administrator does not have a nondiscretionary duty to

implement a federal plan under § 129(b)(3), it dismissed the

case for lack of subject matter jurisdiction, concluding that the

complaint fell outside the CAA’s limited waiver of sovereign

immunity. See Sierra Club, 330 F. Supp. 3d at 421. Sierra Club

believes this was error because its complaint alleged that

§ 129(b)(3) creates a nondiscretionary duty and “the absence

of a valid (as opposed to arguable) cause of action does not

implicate subject-matter jurisdiction, i.e., the courts’ statutory

or constitutional power to adjudicate the case.” Appellant’s Br.

25 (quoting Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 89 (1998) (emphasis omitted)). But Steel Co. and the

other cases Sierra Club relies on address dismissal for lack of

subject matter jurisdiction if a complaint is “so insubstantial,

implausible, foreclosed by prior decisions . . . or otherwise

completely devoid of merit as not to involve a federal

controversy,” Steel Co., 523 U.S. at 89 (quoting Oneida Indian

Nation of N.Y. v. Cty. of Oneida, 414 U.S. 661, 666 (1974)),

11

not, as here, where the complaint falls outside a statute’s

limited waiver of sovereign immunity, see Council on Am.

Islamic Relations v. Ballenger, 444 F.3d 659, 666 (D.C. Cir.

2006) (dismissal for lack of subject matter jurisdiction because

claim fell outside Federal Tort Claims Act’s sovereign

immunity waiver); Auster v. Ghana Airways Ltd., 514 F.3d 44,

48 (D.C. Cir. 2008) (“Because the defendants have sovereign

immunity, the federal courts lack subject matter jurisdiction in

this [Foreign Sovereign Immunities Act] case.”). 3 The district

court correctly dismissed Sierra Club’s CAA claim for lack of

subject matter jurisdiction.4

III

Sierra Club argues in the alternative that the APA grants

jurisdiction because it “waives sovereign immunity in all suits

for non-monetary relief against the government or a

government official in his or her official capacity[,]”

3

Other circuits have also found dismissal for lack of subject

matter jurisdiction appropriate in cases brought under the CAA’s

citizen-suit provision. See Murray Energy Corp. v. EPA, 861 F.3d

529, 537 (4th Cir. 2017); WildEarth Guardians v. McCarthy,

772 F.3d 1179, 1182 (9th Cir. 2014).

4

We see no conflict between our holding on this point and the

decision in Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir.

2011). Although Jackson also involved an allegedly

nondiscretionary duty under the CAA, id. at 852, the Jackson court

construed the cause of action as arising under the APA, id. at 855,

and it was on this basis that the court found dismissal for failure to

state a claim the proper resolution in the absence of a mandatory

duty, id. at 856-57. See Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C.

Cir. 2009) (dismissing under Rule 12(b)(6) the APA claim brought

under 5 U.S.C. § 702 because the APA does not create subject matter

jurisdiction and “the APA provides no cause of action to review” a

decision that “is an ‘agency action ... committed to agency discretion

by law.’”).

12

Appellant’s Br. 31 (citing 5 U.S.C. § 702), and that we “ha[ve]

repeatedly and expressly held in the broadest terms that the

[APA’s] waiver of sovereign immunity applies to any suit

whether under the [APA] or not,” id. at 32 (quotation marks

omitted) (citing Perry Capital LLC v. Mnuchin, 864 F.3d 591,

620 (D.C. Cir. 2017)). But the APA does not support

jurisdiction here because it contains a carve-out that prevents a

plaintiff from using its general sovereign immunity waiver to

evade limitations contained in other statutes like the CAA. See

5 U.S.C. § 702 (“Nothing [in the APA] . . . affects other

limitations on judicial review or . . . confers authority to grant

relief if any other statute that grants consent to suit expressly

or impliedly forbids the relief which is sought.”).

Sierra Club’s argument is foreclosed by Match-E-Be-

Nash-She-Wish Band of Pottawatomi Indians v. Patchak,

567 U.S. 209 (2012), which involved the APA’s interplay with

the Quiet Title Act (QTA), 28 U.S.C. § 2409a. Although the

Supreme Court concluded that Patchak’s APA claim fell within

the APA’s general sovereign immunity waiver, it reached that

conclusion only because the QTA “is not addressed to the type

of grievance which the plaintiff [sought] to assert.” Match-E-

Be-Nash-She-Wish Band of Pottawatomi Indians, 567 U.S. at

216 (citation omitted). Here, the CAA is “addressed to the type

of grievance” Sierra Club seeks to assert and “‘[w]hen

Congress has dealt in particularity with a claim and [has]

intended a specific remedy’—including its exceptions—to be

exclusive, that is the end of the matter; the APA does not undo

the judgment.” Id. (quoting Block v. North Dakota ex rel. Bd.

of Univ. and Sch. Lands, 461 U.S. 273, 286 n.22 (1983)).5

5

Our precedent relied upon by Sierra Club is not to the

contrary. In Perry Capital LLC v. Mnuchin, for example, we

specifically noted “[t]he waiver in § 702 does not apply ‘if any other

statute that grants consent to suit expressly or impliedly forbids the

13

Because neither the CAA’s citizen-suit provision nor the

APA conferred jurisdiction on the district court, we affirm its

judgment of dismissal.

So ordered.

relief which is sought.’” 864 F.3d 591, 618 (D.C. Cir. 2017) (citing

Albrecht v. Comm. on Employee Benefits, 357 F.3d 62, 67–68

(D.C. Cir. 2004)). In other cases, we described the APA's waiver

broadly because the claims at issue did not involve a limiting

principle in another statute affording relief. See, e.g., Trudeau v.

FTC, 456 F.3d 178, 185–86 (D.C. Cir. 2006); Chamber of

Commerce v. Reich, 73 F.3d 1322, 1328–30 (D.C. Cir. 1996).

WILKINS, Circuit Judge, concurring: Being in agreement

with the panel’s disposition of the issues presented, I

nonetheless write separately to highlight the nonsensicality of

EPA’s proffered reading of one relevant passage of the Clean

Air Act. Unmoved, apparently, by plain congressional intent,

EPA forwarded to this Court an interpretation of a portion of

42 U.S.C. § 7429(b)(3) that, while it would protect EPA from

the consequences of its nonfeasance, flies in the face of both

reason and the statute’s evident purposes, and thus deserves

comment.

Lackadaisical regulation of air pollution prompted

Congress to amend the Clean Air Act in 1990. New Jersey v.

EPA, 517 F.3d 574, 578 (D.C. Cir. 2008) (noting Congress’s

“concern[] about the slow pace” of EPA’s regulation of

hazardous air pollutants); S. REP. NO. 101-228 (1989), as

reprinted in 1990 U.S.C.C.A.N. 3385, 3389 (referring to air as

a “national resource,” and noting that “[t]o protect this resource

a strong national control strategy is needed”). Little was left to

the imagination; as relevant here, the 1990 amendments baked

into the Clean Air Act various directives concerning EPA’s

regulation of solid waste incineration units (“SWIUs”). 42

U.S.C. § 7429; see Davis Cty. Solid Waste Mgmt. v. EPA, 101

F.3d 1395, 1398-99 (D.C. Cir. 1996) (outlining § 7429’s

directives to EPA with regard to SWIUs), amended on other

grounds on reh’g, 108 F.3d 1454 (D.C. Cir. 1997).

Fast-forward to the present, however, and it is evident that

EPA is not exactly on the ball; for instance, despite

§ 7429(b)(3)’s edict that a federal implementation plan “shall

assure that each [SWIU] subject to the plan is in compliance

with all provisions of the guidelines not later than 5 years after

the date the relevant guidelines are promulgated[,]” EPA has

not to date “impose[d] a federal plan upon any State that [would

be subject to such] plan following issuance of either the 2013

CISWI guidelines or the 2005 OSWI guidelines.” Majority

Op. at 4. EPA, when questioned on this point at oral argument,

2

asserted to the Court that the at-issue provision of § 7429(b)(3)

does not require promulgation of the federal plan on any

particular timeline (say, within five years of the promulgation

of the relevant guidelines) – no, according to EPA, the statutory

directive pertains merely to the content of the federal plan.

Oral Arg. Recording at 21:48-22:41. Accordingly, it would

seem, a federal plan that issued ten or twenty or a hundred years

after the promulgation of the relevant guidelines would answer

the call of the statute if it set forth means by which compliance

with the guidelines would have been achieved within five years

if EPA had issued the plan prior to the elapse of those five years

– which, EPA says, it is not required to do. See id. at 21:48-

23:47.

Though it is nigh on impossible to square this argument

with rationality, its root – its raison d’être – is abundantly clear:

Having no statutory command to issue its federal

implementation plan within five years of the promulgation of

the relevant guidelines would free EPA from liability for

failure, in this regard, to perform a nondiscretionary duty under

42 U.S.C. § 7604(a)(2) (an academic point for the moment,

since, as relevant here, Sierra Club sought only to enforce a

two-year deadline. See Compl. for Declaratory and Injunctive

Relief at ¶¶ 64-66, Sierra Club v. McCarthy, No. 16-2461 (D.D.C.

Dec. 16, 2016), ECF No. 1.). EPA was quick to assert at oral

argument that a suit for agency action unreasonably delayed

could instead be brought, Oral Arg. Recording at 23:38-23:47

– but of course the legal framework for a suit under 5 U.S.C.

§ 706(1) presents plaintiffs with quite an uphill climb, see, e.g.,

Cobell v. Norton, 240 F.3d 1081, 1096 (D.C. Cir. 2001) (noting

that “courts are reluctant to upset existing agency priorities, . .

. . [a]n agency’s own timetable for performing its duties in the

absence of a statutory deadline is due ‘considerable

deference[,]’ . . . . [and] ‘a finding that delay is unreasonable

does not, alone, justify judicial intervention.’” (citations

3

omitted)). Relegated to the back burner of EPA’s conceptual

stove, somehow, is Congress’s clear intent that the agency take

affirmative and timely action to curb SWIUs’ emissions of

toxic pollutants.

Sierra Club confined its complaint, as to § 7429(b)(3), to

the issue of whether EPA’s failure to issue and enforce a federal

plan within two years of the guidelines’ promulgation

represented a failure to perform a nondiscretionary duty,

Compl. ¶¶ 64-66, and it did not assert an unreasonable-delay

claim. But other suits seeking to enforce the provisions of the

Clean Air Act will certainly succeed this one. So we are left to

hope that when EPA appears before this Court again, defending

those suits, its arguments will leave jurists, if not satisfied, at

least not compelled to describe those arguments in terms that

border on the indecorous.