UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) SI ERRA CL UB , ) ) Plaintiff, ) ) v. ) Civil Action No. 11-1278 ( PL F) ) L I SA P. J ACKSON, Administrator, ) U.S. Environmental Protection Ag ency , ) ) Def endant. ) ____________________________________)

MEMORANDUM OPI

NI ON AND ORDER This matter is befor e the Court on the pa rties’ c ross-motions for summary judgme nt on Sierra Club’s three claims for r elief. The Court finds insufficient the pa rties’ briefingon Sierra Club’s fir st claim and there fore will order the pa rties to file supplemental memoranda

. On J anuar y 20, 2011, the Court order ed the Environme ntal Protection Ag ency to promulg ate long -over due emission standards unde r the Clean A ir Act by Fe bruar y 21, 2011. Sierra Club v. Jackson, Civil Action No. 01-1537, 2011 WL181097, at *14 (D.D .C. J an. 20, 2011). In acc ordanc e with that orde r, on F ebrua ry 21, 2011, EPA signe d two rules re g ulating emission standards: the “B oiler Rule”; and the “CI SW IRule.” Sierra Club v. J ackson, Civil Action No. 11-1278, 2011 WL4448610, at *2 (D.D .C. Sept. 27, 2011). But then, two da y s befor e these rules we re to g o into effe ct, EPA issued what the a g ency ref ers to as the “De lay Notice,” staying the eff

ective da te of both rules “ until the procee dings f or judicial re view of the se rules [in the court of a

ppeals] are complete or

the EPA completes its rec onsideration of the rules, whicheve r is ear lier.” 76 F E D . R E G . 28,662, at 28,664 (May 18, 2011).Sierra Club filed this lawsuit to challeng e the va lidity of EPA’s De lay

Notice. See g ener ally

Compl. I n its complaint, S ierra Club contends that EPA’s Dela y Notice is unlawful for

three independe nt rea sons: (1) EPA failed to pr ovide notice or an opportunity

for comment bef

ore issuing the Dela

y Notice, Compl. ¶¶ 33-36; ( 2) EPA lacke d the statutory authority to issue the Delay

Notice, id. ¶¶

37-43; and (3) EPA failed to provide adequate justification for the De lay Notice. I d. ¶¶ 44- 47. I n response , EPA filed a motion to dismi ss Sierra Club’s complaint for lack of subject matter jur isdiction. On September 27, 2011, the Court denie d EPA’s motion to di smiss. Be cause EPA issued the Dela y Notice unde r the Administrative Proce dure A ct rather than the Clean Air Ac t, the Court held that it had jurisdiction to review Sierr a Club’s complaint pursuant to the fede ral que stion statute, 28 U.S.C . § 1331. See Sierra Club v. J ackson, 2011 WL4448610, at *6-11. The parties now ha ve brie fed c ross-motions for summary judgme nt on Sierra Club’s three claims. The que stion presented by Sierra Club’s fir st claim is whether the Delay Notice is a rule that is subject to notice and c omment require ments. Sierra Club asser ts that the Delay Notice ope rate s as a stay

of the B oiler Rule and the CI SW IRule for the pur pose of a llowing EPA itself to rec onsider those rule s. See PMSJ Reply at 15 [Dkt. No. 25] (“[T]he I ndefinite Stay is decisively a stay pendingrec onsideration.”) . Thus, rely ing on E nvironmental De fense Fund v. Gorsuch, 713 F .2d 802 (D.C. Cir. 1983), Sierra Club arg ues that the De lay Notice is subject to rulemakingrequire ments — including notice and comment — be cause it has the eff ect of indefinitelysuspending two duly promulg ated Clea

n Air Ac t regulations. PMS J Reply at 5 (citing Environmental De fense Fund v. Gor such, 713 F .2d at 815-17).

2I n contra st, EPA contends that Environmental De fense Fund v. Gor such is

inapposite bec ause the Delay Notice “ is only

a proc edura l device that temporarilymaintains the status quo” pendingjudicial revie w. DMSJ Reply at 4 [Dkt. No. 35] (empha sis added); see DMSJ at 12 [Dkt. No. 20] . There fore , EPA say s, the rulemaking require ments of notice a

nd comment ar e not applica

ble to the Dela

y Notice. See DMSJ Reply at 4. The que stion, however, is not the leng th of the stay or its temporary

nature , see Public Ci tiz en v. Steed, 733 F .2d 93, 98 (D.C. Cir. 1984); Council of S. Mountains, I nc. v. Donovan, 653 F .2d 573, 582 (D.C. Cir. 1981), but rathe r whe ther a suspension or delayed implementation of a fina l regulation constitutes substantive rulemaking . The c ase la w sug g ests that normally

it does. See Environmenta l Defe nse F und v. EPA, 716 F.2d 915, 920 (D .C. Cir. 1983) (c iting Environmenta l Defe nse F und v. Gorsuch, 713 F .2d at 816; NRDC v. U.S. EPA, 683 F.2d 752, 761 ( 3d Cir. 1982); and Council of S. Mountains, I nc. v. Donova n, 653 F.2d at 580 n.28); Ranche rs Cattlemen Ac tion L eg al Fund v. U .S. Depar tment of Ag ric., 566 F . Supp. 2d 995, 1004 (D.S.D. 2008); see also Public Cit izen v. Depar ment of He alth & H uman Servs., 671 F.2d 518, 520 ( D.C. Cir. 1981) (Edwa rds, J ., dissenting) (“Cer

tainly a dec ision to sus pend indefinitely

regulations that are the product of e x haustive study and compr ehensive rulemaking , in order to a llow a wholesa le re evaluation of a major r egulatory prog ram, c annot be view ed as a temporar y measure for pr eser

ving the status quo.”). Conseque ntly , that ty pe of a g ency

action normally require s notice and a

n opportunity

for c omment. See, e.g ., Environmental De fense Fund v. Gor such, 713 F .2d at 818.

I n NRDC v. Abraha

m, 355 F.3d 179 (2d Cir. 2004), a case that neither side c ited, the United States Court of Appe als for the Second Circuit provides a possible answer

to why a 3suspension or delayed implementation of a rule norma lly

constitutes a substantive rulemaking requiringnotice and a

n opportunity

for c omment: because “alter ing the eff ective date of a

duly promulg ated standa

rd could be , in substance, tantamount to an amendment or r escission of the [rule.] ” NRDC v. Abra

ham, 355 F.3d at 194; see also Public Citi zen v. Steed, 733 F.2d at 98 (holding that ag ency ’s suspension of rule was “ a par adig m of a re vocation,” c onstitut ing “ a 180 deg ree reve rsal of [the ag ency ’s] former view s as to the prope r cour se”) (interna l quotations and citation omitted); NRDC v. U.S. EPA, 683 F.2d at 763 n.23 (“ [A] n indefinite postponement which is neve r terminate d is tantamount to a revoc ation.”). B ut if a suspension or de lay ed implementation constitutes a substantive rulemakingfor the r eason state d by NRDC v. Abraha

m, then the question ar ises why , at least unde r the Clean A ir Act, a ny challeng e to such a

rule — including a

challeng e re g ardingthe re quirements of notice and comment — should not be ra ised in the court of a

ppeals rather than in this Court? There fore , in view of NRDC v. Abra ham, as we ll as other author ity , the Court finds that it would be helpful to have supplemental brief ing on the following questions: (1) I s it S ierra

Club’s positi on that the Dela y Notice is a r

ule bec ause it operates as an a

mendment or re scission of the B oiler Rule and the CI SW IRule? (2) I f so, then why

does Sierra

Club’s first claim not fall within the court of appea ls’ exclusive jurisdiction under 42 U.S.C. § 7607(b)(1) to re view an a mendment or

resc ission of the Boiler

Rule and the CI SW IRule? (3) I f not, then on what authority does Sierra

Club rely for the pr oposition t hat EPA was re quired to provide notice and an oppor tunity for c omment before issuing the De lay Notice?

4Acc ording ly , it is hereby ORDERED that Sierra

Club shall file a supplemental memora ndum addre ssing the questions descr ibed above by October 19, 2011; EPA shall file a re sponse by October 24, 2011; and Sierra

Club shall file a reply , if any , by October 27, 2011. SO ORDERED. /s/ PAULL . FRI EDMAN DATE: Oc tober 13, 2011 United States District J udg e

5