United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 7, 2011 Decided July 1, 2011

No. 10-5280

SIERRA CLUB AND VALLEY WATCH, INC.,

APPELLANTS

v.

LISA PEREZ JACKSON, IN HER OFFICIAL CAPACITY AS

ADMINISTRATOR, UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-02089)

Robert Ukeiley argued the cause and filed the briefs for

appellants.

John E. Arbab, Attorney, U.S. Department of Justice,

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

Katherine J. Barton, Attorney. R. Craig Lawrence, Assistant

U.S. Attorney, entered an appearance.

Before: SENTELLE, Chief Judge, GINSBURG and BROWN,

Circuit Judges.
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Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: Appellants, nonprofit

environmentalist organizations, appeal from a judgment of

dismissal entered by the district court in an action against the

United States Environmental Protection Agency (“EPA”) under

the citizen suit provision of the Clean Air Act, challenging the

Administrator’s failure to take action to prevent the construction

of three proposed pollution-emitting facilities in Kentucky. The

district court held that there was no mandatory duty to act and

granted the EPA’s motion to dismiss for lack of subject matter

jurisdiction. The nonprofits brought the present appeal. We

affirm the dismissal on different grounds.

I.

The Clean Air Act (“the Act”), 42 U.S.C. §§ 7401 et seq.,

creates a complex regulatory regime designed “to protect and

enhance the quality of the Nation’s air resources.” § 7401(b)(1). 

As part of that regime, the Act empowers the Administrator of

the EPA to establish National Ambient Air Quality Standards

(“NAAQS”), setting allowable concentrations of air pollutants

determined by the Administrator to meet statutorily defined

criteria. §§ 7408-09. In furtherance of the attainment of the

National Ambient Air Quality Standards, the Act requires each

state to develop a State Implementation Plan (“SIP”) by which

the state will achieve, maintain, and enforce those standards.

§ 7410. The Administrator is to designate areas of a state

meeting the applicable ambient air quality standard as

“attainment” areas. § 7407(d)(1)(A)(ii). The Act further

requires states to prevent “significant deterioration” of air

quality in attainment areas. §§ 7470 et seq. In furtherance of

this goal, the Act requires, inter alia, that no major emitting

facility may be constructed in an attainment area without a

permit meeting the requirements of the Act. § 7475. 
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Section 7477, entitled “Enforcement,” states that “[t]he

Administrator shall, and a State may, take such measures,

including issuance of an order, or seeking injunctive relief, as

necessary to prevent the construction or modification of a major

emitting facility . . . proposed to be constructed” in an

attainment area. The present controversy involves three major

emitting facilities proposed to be built in attainment areas in

Kentucky.

II.

The three projects underlying this litigation are the East

Kentucky Power Cooperative’s J.K. Smith Generating Station

coal-fired CFB Boiler Project (“Smith”), Conoco Phillips and

Peabody’s Kentucky NewGas Synthetic Natural Gas Production

plant (“NewGas”), and Cash Creek Generation LLC’s coal-fired

Cash Creek Generating Station (“Cash Creek”). Because each

facility qualifies as a “major emitting facility,” see § 7479(1),

and because each is proposed to be built in a county designated

as an attainment area, all three facilities are required to obtain

permits from the State of Kentucky. § 7475(a). The permits are

part of the statutory Prevention of Significant Deterioration

(“PSD”) program implementing the requirements of § 7475(a).

Kentucky granted PSD permits to each facility prior to

September 15, 2010. That fact is significant because until that

date, the Kentucky State Implementation Plan failed to meet the

requirements of the Clean Air Act’s PSD regulations. In 1989

the EPA approved the PSD permitting program in effect in

Kentucky prior to September 15, 2010. See Approval and

Promulgation of Implementation Plans, Kentucky, 54 Fed. Reg.

36,307 (Sept. 1, 1989). In 1997, the EPA amended the federal

NAAQS to revise the nation’s standards for ozone, see National

Ambient Air Quality Standards for Ozone, 62 Fed. Reg. 38,856

(July 18, 1997), and in 2005 the EPA required those new ozone
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standards to be incorporated in each state’s SIP, see Final Rule

to Implement the 8-Hour Ozone NAAQS, 70 Fed. Reg. 71,612

(Nov. 29, 2005). Included in the 2005 EPA regulation was a

requirement that state PSD programs regulate nitrogen oxides,

or NOx, as an ozone precursor in attainment areas. 70 Fed. Reg.

at 71,679. Despite the 2005 mandate, until September 15, 2010,

Kentucky’s State Implementation Plan failed to incorporate the

1997 ozone NAAQS or to regulate NOx as a precursor to ozone

under its PSD program. Therefore, the Smith, NewGas, and

Cash Creek facilities do not comply with § 7475(a), which

forbids the construction of such facilities absent a PSD permit

meeting the requirements of the Clear Air Act.

When neither the Administrator nor the state took action to

prevent the construction of the nonconforming major emitting

facilities, appellants, two environmentalist nonprofits

(collectively referred to as “Sierra Club”), brought the present

action under 42 U.S.C. § 7604(a)(2), which provides for the

filing of citizen suits against the Administrator for her alleged

failure to perform any nondiscretionary duty under the Act. 

Arguing that her duty under § 7477 was discretionary, and

therefore beyond the reach of the statute, the Administrator

moved for dismissal. Agreeing with the Administrator, the

district court ruled that the Administrator’s decision not to

exercise her statutory duty was discretionary, and thus not

subject to judicial review. Sierra Club v. Jackson, 724 F. Supp.

2d 33 (D.D.C. 2010). The district court entered a judgment of

dismissal under Rule 12(b)(1) for lack of subject matter

jurisdiction. Sierra Club brought the present appeal.

III.

Before we can consider the merits of the Sierra Club’s

appeal, we must first ensure that we have jurisdiction to do so. 

Article III of the Constitution limits the federal courts to
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adjudication of actual, ongoing controversies. Honig v. Doe,

484 U.S. 305, 317 (1988). “It has long been settled that a

federal court has no authority ‘to give opinions upon moot

questions or abstract propositions, or to declare principles or

rules of law which cannot affect the matter in issue in the case

before it.’” Church of Scientology v. United States, 506 U.S. 9,

12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). 

“Accordingly, if an event occurs while a case is pending on

appeal that makes it impossible for the court to grant ‘any

effectual relief whatever’ to a prevailing party, the appeal must

be dismissed.” Beethoven.com LLC v. Librarian of Cong., 394

F.3d 939, 950 (D.C. Cir. 2005) (quoting Mills, 159 U.S. at 653)).

In this case, the Administrator advances two mootness

arguments. First, the Administrator asserts that because

Kentucky rescinded the East Kentucky Power Cooperative’s

authorization to construct and operate the Smith facility, there

is no longer a live controversy regarding this facility. As the

Sierra Club admitted in its brief, “there is currently no need for

EPA to prevent construction of Smith.” Br. for App. at 3. 

Although the Sierra Club suggested that its appeal with regard

to the Smith facility was not moot because it qualifies for the

“issue capable of repetition yet evading review” exception, it

essentially conceded the issue at oral argument. Or. Arg.

3:24–30. (“There are three plants and one of the plants is gone,

so it is moot.”). We agree. The appeal is moot with respect to

the Smith facility. 

The Administrator’s first mootness argument does not apply

to the other two facilities, as their permits remain in effect and

they remain in proposed-to-be-constructed status. Nonetheless,

the Administrator argues that the controversy concerning their

construction is moot as well. In her view, the proposed facilities

are no longer out of compliance with § 7475(a). She bases this

contention on the fact that the previously nonconforming SIP
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has been in compliance since September 15, 2010. Therefore,

the Administrator argues, the projects no longer fall within the

prohibition of § 7475(a) as they are not proposed to be built in

attainment areas that are currently “not subject to an

implementation plan which meets the requirements of this part

[of the Clean Air Act].” 42 U.S.C. § 7477. Thus, she contends,

even if § 7477 does create a mandatory duty, that section is no

longer applicable. She further contends that because the statute

no longer applies, any opinion on her duty under the previous

regime would be purely advisory.

Sierra Club offers two responses to the second mootness

argument. First, it contends that Kentucky’s newly achieved

compliance is irrelevant because Kentucky issued the PSD

permits in question under the prior non-compliant Kentucky

State Implementation Plan. Those permits, it contends, do not

meet the standards imposed by § 7475 as compliance with that

statute should be judged at the time of the issuance rather than

some subsequent date. In Sierra Club’s view, if there is to be a

compliant permit for a facility, that permit must issue under a

compliant plan.

Secondly, Sierra Club asserts that the Kentucky SIP suffers

from a further defect not rectified by the September 15, 2010

final rule. It contends that the Clean Air Act’s PSD program

requires public notice of the impact that a new source of air

pollution will have on air quality standards in nearby Class I

areas, such as wilderness and national parks. The Kentucky

Plan, on the other hand, requires notice only for Class I areas

located in the same county as the proposed source, and therefore

there was no published public notice to describe the impact that

the new facilities would have on other nearby Class I areas. In

short, Sierra Club argues, this case still presents a live

controversy because even as currently amended the Kentucky

Plan does not conform to the notice requirements of the Clean
7

Air Act.

Without passing on the merits of Sierra Club’s contentions,

we agree that the question of the validity of the PFD permits

issued under the noncompliant SIP and the possible invalidity of

the amended SIP raise sufficient current controversy to save this

litigation from mootness as to the NewGas and Cash Creek

facilities.

IV.

Although we hold that we do not lose jurisdiction over this

controversy by reason of mootness, this does not resolve the

jurisdictional theory upon which the district court relied in

dismissing the case under Rule 12(b)(1) for lack of subject

matter jurisdiction. Sierra Club, 724 F. Supp. 2d at 42-43. The

district court’s ruling was based on the proposition that the

Administrator’s decision was discretionary and therefore not

justiciable. Before this court, Sierra Club, which certainly does

not concede that the district court should have dismissed the

claim at all, argues that the analysis should have been under

Rule 12(b)(6) to determine whether the complaint failed to state

a claim upon which relief could be granted rather than under the

jurisdictional standards of Rule 12(b)(1). While it does not in

the end affect the outcome, we ultimately agree that Rule

12(b)(6) should govern. We hasten to state that we do not fault

the district court for basing its dismissal on Rule 12(b)(1) rather

than Rule 12(b)(6). The distinction between a claim that is not

justiciable because relief cannot be granted upon it and a claim

over which the court lacks subject matter jurisdiction is

important. But we cannot fault the district court, as this court

“ha[s] not always been consistent in maintaining these

distinctions.” Oryszak v. Sullivan, 576 F.3d 522, 527 (D.C. Cir.

2009) (Ginsburg, J., concurring). Indeed, we have provided

authority both that discretionary duty claims fall outside our
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jurisdiction, and that such claims are nonjusticiable under Rule

12(b)(6). In Association of Irritated Residents v. EPA, we held

that agency decisions excluded from judicial review by 5 U.S.C.

§ 701(a)(2) are outside the court’s jurisdiction. 494 F.3d 1027,

1030 (D.C. Cir. 2007) (“In this case, subject matter jurisdiction

turns on whether the Agreement constitutes a rulemaking subject

to APA review, or an enforcement proceeding initiated at the

agency’s discretion and not reviewable by this court.”). Two

years later, in Oryszak v. Sullivan, we came to a different

conclusion. Without any reference to Association of Irritated

Residents, we stated:

Because the APA does not apply to agency action

committed to agency discretion by law, a plaintiff who

challenges such an action cannot state a claim under the

APA. Therefore, the court has jurisdiction over his case

pursuant to § 1331, but will properly grant a motion to

dismiss the complaint for failure to state a claim.

Oryszak, 576 F.3d at 525. 

 It is fixed law that “this Court is bound to follow circuit

precedent until it is overruled either by an en banc court or the

Supreme Court.” Maxwell v. Snow, 409 F.3d 354, 358 (D.C.

Cir. 2005). Therefore, when a decision of one panel is

inconsistent with the decision of a prior panel, the norm is that

the later decision, being in violation of that fixed law, cannot

prevail. However, that is not the case with Oryszak and

Association of Irritated Residents. Association of Irritated

Residents is in fact inconsistent with preexisting precedent. In

Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006), we addressed

whether the finality requirement contained in § 704 of the APA

was jurisdictional. Noting the Supreme Court’s holding in

Califano v. Sanders that “the APA does not afford an implied

grant of subject-matter jurisdiction permitting federal judicial

review of agency action,” 430 U.S. 99, 107 (1977), we held that
9

the finality requirement was not jurisdictional. We reasoned

“[b]ecause § 704’s declaration that final agency action is

‘subject to judicial review’ is not a grant of jurisdiction, even if

we were to infer by negative implication that agency conduct not

amounting to final agency action is not ‘reviewable,’ that

inference would not deprive a federal court of any jurisdiction

it otherwise has.” 456 F.3d at 183-84. We expressly rejected

the proposition that “‘the presence of final agency action is a

jurisdictional issue.’” Id. at 183 (quoting Trudeau v. FTC, 384

F. Supp. 2d 281, 294 n.13 (D.D.C. 2005)).

Although Association of Irritated Residents and Trudeau

concerned different sections of the APA—section 701(a)(2)

rather than section 704—our opinion in Trudeau should have

guided our deliberations in Association of Irritated Residents as

it did later in Oryszak. Therefore, following the norm that the

older case remains undisturbed by the later, it is Trudeau and not

Association of Irritated Residents that provides precedent for our

current review. Applying Oryszak and Trudeau, we conclude

that a complaint seeking review of agency action “committed to

agency discretion by law,” 5 U.S.C. § 701(a)(2), has failed to

state a claim under the APA, and therefore should be dismissed

under Rule 12(b)(6), not under the jurisdictional provision of

Rule 12(b)(1). Oryszak, 576 F.3d at 525. Nonetheless, if the

district court was correct in dismissing the action as a

nonjusticiable challenge to discretionary agency action, it is

within our power to affirm despite the citation of the wrong rule. 

As we have previously held, “[a]lthough the district court

erroneously dismissed the action pursuant to Rule 12(b)(1), we

could nonetheless affirm the dismissal if dismissal were

otherwise proper based on failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6).” EEOC v. St. Francis Xavier

Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.1997).
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With the threshold questions behind us, we now consider

the merits of the district court’s dismissal of the complaint, now

guided by the provisions of Rule 12(b)(6). We review that

decision de novo and, like the district court, accept the factual

allegations in the complaint as true. Jerome Stevens Pharm. v.

EPA, 402 F.3d 1249, 1250 (D.C. Cir. 2005).

The judicial review provisions of the Administrative

Procedure Act (“APA”), 5 U.S.C. §§ 701-06, establish a cause

of action for parties adversely affected either by agency actions

or by an agency’s failure to act. Heckler v. Chaney, 470 U.S.

821, 828 (1985); see 5 U.S.C. § 551(13) (defining “agency

action” as including an agency’s failure to act). However, the

APA explicitly excludes from judicial review those agency

actions that are “committed to agency discretion by law.” 5

U.S.C. § 701(a). The Supreme Court has specified at least two

occasions in which that exclusion applies: “[I]n those rare

instances where statutes are drawn in such broad terms that in a

given case there is no law to apply,” Citizens to Preserve

Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)

(quotation marks and citations omitted), and when “the statute

is drawn so that a court would have no meaningful standard

against which to judge the agency’s exercise of discretion,”

Chaney, 470 U.S. at 830. Agency actions in these circumstances

are unreviewable because “‘the courts have no legal norms

pursuant to which to evaluate the challenged action, and thus no

concrete limitations to impose on the agency’s exercise of

discretion.’” Sec’y of Labor v. Twentymile Coal Co., 456 F.3d

151, 156 (D.C. Cir. 2006) (quoting Drake v. FAA, 291 F.3d 59,

70 (D.C. Cir. 2002)).

To determine whether a matter has been committed to

agency discretion, we “‘consider both the nature of the

administrative action at issue and the language and structure of

the statute that supplies the applicable legal standards for
11

reviewing that action.’” Twentymile Coal, 456 F.3d at 156

(quoting Drake, 291 F.3d at 70). Furthermore, in cases that

involve agency decisions not to take enforcement action, we

begin with the presumption that the agency’s action is

unreviewable. Ass’n of Irritated Residents, 494 F.3d at 1031; 

see Chaney, 470 U.S. at 831-32. This presumption is not

absolute and “may be rebutted where the relevant statute

supplies meaningful standards to cabin the agency’s otherwise

plenary discretion.” Drake, 291 F.3d at 71; see Chaney, 470

U.S. at 832-33 (“[W]e emphasize that the decision is only

presumptively unreviewable; the presumption may be rebutted

where the substantive statute has provided guidelines for the

agency to follow in exercising its enforcement powers.”). On

the other hand, if the statute in question does not “give any

indication that violators must be pursued in every case, or that

one particular enforcement strategy must be chosen over

another” and if it provides no meaningful guidelines defining the

limits of the agency’s discretion, then enforcement is committed

to the agency’s discretion. Ass’n of Irritated Residents, 494

F.3d at 1033 (citing Chaney, 470 U.S. at 834-35).

In this case, the Sierra Club argues that the district court

erred when it held that § 7477 does not place a mandatory,

judicially-reviewable duty upon the EPA Administrator. The

Sierra Club asserts that the express language of § 7477,

specifically the close juxtaposition of the mandatory “the

Administrator shall” with the permissive “the State may,”

establishes that Congress intended to strip the Administrator of

discretion. The crux of the Sierra Club’s argument is that the

plain text of § 7477 makes enforcement by the Administrator

mandatory and subjects the Administrator’s decision not to

enforce to judicial review.

The Sierra Club’s textual argument carries considerable

weight. As we have repeatedly noted, “shall” is usually
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interpreted as “the language of command.” See, e.g., Zivotofsky

v. Sec’y of State, 571 F.3d 1227, 1243 (D.C. Cir. 2009) (quoting

Escoe v. Zerbst, 295 U.S. 490, 493 (1935)); Allied Pilots Ass’n

v. Pension Benefit Guar. Corp., 334 F.3d 93, 98 (D.C. 2003);

Southwestern Bell Corp. v. FCC, 43 F.3d 1515, 1521 (D.C. Cir.

1995). In addition, when a statute “uses both ‘may’ and ‘shall,’

the normal inference is that each is used in its usual sense—the

one act being permissive, the other mandatory.” Oljato Chapter

of the Navajo Tribe v. Train, 515 F.2d 654, 662 (D.C. Cir. 1975)

(quoting Anderson v. Yungkau, 329 U.S. 482, 485 (1947)). We

cannot, however, consider those words in isolation. We must

also consider the language and structure of the statute to

determine whether the Administrator retained discretion in the

statutory duty so as to render her decision unreviewable. See

Twentymile Coal, 456 F.3d at 156. 

Upon examination of the context and structure of § 7477,

we agree with the Administrator that she had sufficient

discretion to render her decision not to act nonjusticiable. 

Congress’s mandate to the Administrator is that she shall “take

such measures, including issuance of an order, or seeking

injunctive relief, as necessary . . . .” There is no guidance to the

Administrator or to a reviewing court as to what action is

“necessary.” Granted, the statute further says, “as necessary to

prevent the construction or modification of a major emitting

facility . . . proposed to be constructed” in an attainment area,

but that nonetheless leaves it to the Administrator’s discretion

to determine what action is “necessary.” Where, as here, the

Administrator is satisfied that the PSD permit issued under the

noncompliant SIP is sufficient, then she has apparently made the

decision that no action is necessary. In more general terms,

agencies must regularly determine what action, if any, they

should take, depending on numerous factors, including “whether

agency resources are best spent on this violation or another,

whether the agency is likely to succeed if it acts, whether the
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particular enforcement action requested best fits the agency’s

overall policies, and, indeed, whether the agency has enough

resources to undertake the action at all.” Chaney, 470 U.S. at

831. Congress can limit an agency’s discretion “either by

setting substantive priorities, or by otherwise circumscribing an

agency’s power to discriminate among issues or cases it will

pursue.” Id. at 833. Given the broad range of options open to

the Administrator and the strength of the precedent from

Chaney, in the context of § 7477, the use of the mandatory

“shall” is not sufficient to provide legal standards for judicial

review of the Administrator’s decision not to act.

Section 7477 satisfies both Overton Park’s description of a

statute “drawn in such broad terms that in a given case there is

no law to apply,” 401 U.S. at 410 (internal quotations and

citation omitted), and Chaney’s description of a statute “drawn

so that a court would have no meaningful standard against which

to judge the agency’s exercise of discretion,” 470 U.S. at 830. 

Furthermore, § 7477 does not indicate that one enforcement

measure should be chosen over another or otherwise provide

guidelines that define the limits of the Administrator’s

discretion. See Ass’n of Irritated Residents, 494 F.3d at 1033. 

We conclude, therefore, that the APA does not provide a cause

of action to review the Administrator’s failure to act under

§ 7477 because her decision is an agency action “committed to

agency discretion by law.” See 5 U.S.C. § 701(a)(2).

CONCLUSION

For the foregoing reasons, the Sierra Club failed to state a

claim upon which relief could be granted. Although the district

court dismissed the case pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction, we

affirm the district court’s action because dismissal would
14

otherwise have been proper under Rule 12(b)(6). See St.

Francis Xavier Parochial Sch., 117 F.3d at 624.

So ordered.