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.