A federal court in the District of Columbia has rejected EPA’s argument that a challenge to the agency’s delay in promulgating the boiler emissions rule should have been brought in the D.C. Circuit Court of Appeals. Sierra Club v. Jackson, No. 11-1278 (D.D.C. 9/27/11). EPA announced its decision to delay implementation of Clean Air Act (CAA) standards for industrial boilers and incinerators in May 2011. In its notice, the agency specified that it was postponing the rules under the Administrative Procedure Act (APA), which does not have time limits on such delays, rather than under the CAA, which allows a delay of up to three months only.
The Sierra Club sued in federal district court in July, alleging that EPA failed to give proper notice of the delay, violated the CAA’s limits on delays and failed to adequately justify the delay. EPA countered in its motion to dismiss that, under the CAA, exclusive jurisdiction for challenging the delay was in the D.C. Circuit. Rejecting EPA’s motion, the court held that because EPA said it was acting under the APA and not the CAA when it issued its delay, the court would accept that characterization. The court said that because district courts have jurisdiction over APA-based claims, “the Sierra Club’s challenge may proceed.”