Can a federal agency refuse to do its job for so long that the statute of limitations would prevent legal action to force the agency to act? That was the question federal judge Richard W. Roberts answered with a resounding “No” last week in the case of Sierra Club v. US EPA (2012). The origins of the case go back to 1990, when Congress revised the Clean Air Act and directed the Environmental Protection Agency (EPA) to identify the sources of about 189 specified hazardous air pollutants, including brick kilns and clay products manufacturing, and promulgate regulations governing them by November 15, 2000.

 

Although EPA finally issued regulations in 2003, the Sierra Club quickly challenged them in court for not meeting statutory requirements, and the D.C. Circuit Court of Appeals vacated them in March 2007 and directed EPA to promulgate new standards. One year later, with no new rules in sight, Sierra Club again filed suit, this time to force EPA to do its job.

 

EPA tried to persuade the judge to dismiss the suit by arguing that its 2003 regulations rendered pointless any claim that it had missed its 2000 deadline, but Judge Roberts ruled that when the D.C. Circuit struck down those rules, it restored “the status quo before the invalid rule took effect and the agency must initiate another rulemaking proceeding.” EPA also contended that the six-year statute of limitations on lawsuits challenging agency action applied, which barred the suit because nearly eight years had passed between the 2000 deadline and the 2008 lawsuit. Citing several cases decided by the D.C. Circuit, Judge Roberts decided that the time-bar does not apply to suits complaining of agency inaction.

 

“In a case where the government failed to take prescribed actions by deadlines set in four environmental statutes, the D.C. Circuit opined that it was likely error for the district court to have dismissed as time-barred under § 2401 claims seeking to compel agency action under the APA,” Roberts wrote.     

-Matt Bewig

 

EPA Faces Comeuppance on Clay & Brick Pollution (by Chris Fry, Courthouse News Service)

Sierra Club v. US EPA (U.S. District Court for the District of Columbia) (pdf)