On July 1, 2024, the US Supreme Court held in Corner Post, Inc. v. Board of Governors of the Federal Reserve System that the default federal six-year statute of limitations under the Administrative Procedure Act (APA) and 42 U.S.C. § 2401(a) begins running when a regulation injures a plaintiff, rather than when an agency issues a regulation. For statutes that use this federal default, plaintiffs may now challenge long-established regulations, and many expect test cases to emerge with new organizations created to challenge long-established regulations to leverage the new standards of review emerging under separate Supreme Court cases, including Loper Bright.
However, many key environmental statutes that EPA administers (including the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response Compensation and Liability Act, and the Resource Conservation and Recovery Act) contain statutes of repose. Unlike a statute of limitations, which is typically based on when the claim accrued, these provisions set limitations based on the date of the agency’s action.[1] Corner Post should be distinguishable and should not apply to regulations promulgated under these statutes.
In this piece, I explain the relevant facts and the Court’s decision in Corner Post and review the judicial review provisions for significant environmental statutes that EPA administers. I also include a summary table (Table 1.) showing how Corner Post could apply to these statutes. I conclude with what we are watching as test cases emerge applying and distinguishing Corner Post.
Summary of Corner Post
Relevant Facts and Procedural History
In the Durbin Amendment to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Congress directed the Federal Reserve Board to set standards for the fees paid by merchants to the payment network (i.e. Visa or Mastercard) that processes the transaction each time a merchant accepts a debit card as payment by a customer.[2] In 2011, the Federal Reserve Board issued Regulation II, which established the maximum fee that payment networks can charge merchants.[3] Later that year, a retail trade association and retailers challenged Regulation II as outside of the board’s statutory authority. The D.C. Circuit upheld the rule in 2014.[4]
Corner Post is a convenience store that opened in 2018. It accepts debit cards and pays the processing fee to the payment networks.
In 2021, two North Dakota retail associations challenged Regulation II on Administrative Procedure Act (APA) grounds. The Federal Reserve Board moved to dismiss the suit as barred by the statute of limitations. The plaintiffs then amended the complaint to add Corner Post as a petitioner.[5]
The District Court of North Dakota dismissed the suit as barred by the applicable six-year statute of limitations and the Eighth Circuit affirmed.[6] The Eighth Circuit held that for facial challenges to regulations, the statute of limitations begins running when the agency finalizes the regulation. The Supreme Court reversed and remanded the case to the Eighth Circuit.
The Court’s Opinion in Corner Post
The Supreme Court held that the statute of limitations began running when Corner Post opened (2018) and was injured by Regulation II. Writing for the majority, Justice Barrett points to three interacting statutory provisions that establish these timelines. First, APA Section 702 requires the plaintiff to be injured by an agency action. Second, under APA Section 704 “[u]nless another statute makes the agency’s action reviewable… judicial review is available only for ‘final agency action.’”[7] Third, where the statute does not otherwise provide a statute of limitations, 42 U.S.C. § 2401(a) requires complaints against the federal government to be filed “within six years after the right of action first accrues.”[8] Reading these provisions together, the majority holds that Corner Post’s “right” could not have “accrue[d]” before Corner Post was injured and had a cause of action. The Court, therefore, concludes that the statute of limitations under 42 U.S.C. § 2401(a) should be determined by the plaintiff’s injuries, meaning that the clock begins running when the plaintiff could potentially bring a case. In this case, Corner Post could not have been injured before it existed.
Justice Kavanaugh wrote a concurring opinion, and Justices Jackson, Kagan, and Sotomayor dissented.[9] For the dissent, Justice Jackson writes that “this case is the poster child for the type of manipulation that the majority now invites—new groups being brought in (or created) just to do an end run around the statute of limitations.”[10] The dissent also points out that when combined with Loper Bright, this decision could be “profoundly destabilizing for both Government and businesses.”[11]
Application to Statutes that EPA Administers
Though Corner Post could invite challenges to longstanding federal regulations,[12] several of EPA’s authorizing statutes are distinguishable from Corner Post in two important ways:
- Congress included specific time limits for challenges to EPA’s actions; therefore, the federal default language found in § 2401(a) is unlikely to apply.[13]
- The majority in Corner Post compares statutes of limitations’ “plaintiff focused-language” with statutes of repose, which “run when agency action becomes final.”[14] The time limits in the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response Compensation and Liability Act, and the Resource Conservation and Recovery Act all run based on EPA’s action.
Below, I analyze statutes of repose that apply to EPA actions, including a short summary of the context for Congress enacting the statutes to compare Congressional intent and history with the Durbin Amendment.
The Clean Air Act (CAA)
In 1970, Congress adopted the Clean Air Act (CAA), which authorizes EPA to promulgate rules to regulate emissions from stationary and mobile sources. Congress most recently made significant amendments to the Act in 1990.[15]
The CAA contains a statute of repose. Thus, Section 2401(a) and Corner Post should not apply to regulations promulgated under the CAA. In order to be eligible to file a petition for review of any “appliable regulation”[16] or final action taken by EPA under the CAA, the plaintiff must file the petition for review “within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register” unless the petition is “based solely on grounds arising after such sixtieth day.”[17] Courts have held that this 60-day time bar is jurisdictional, meaning that courts do not have jurisdiction to address claims brought outside the 60-day window.[18] Additionally, the issue for judicial review must have been raised in a comment.[19]
The Clean Water Act (CWA)
In 1972, Congress amended the Federal Water Pollution Control Act to enact what is now known as the Clean Water Act (CWA).[20] The CWA prohibits discharge of pollutants into Waters of the United States without a permit and gives EPA (and, in some cases the US Army Corp of Engineers and states) authority to promulgate and enforce standards.
The CWA contains a statute of repose. Therefore, similar to the CAA, Section 2401(a) and Corner Post should not apply to regulations promulgated under the CWA. In fact, the majority in Corner Post cites the CWA’s statute of repose as an example of “a more specific statute” that “displaces” the federal default.[21] A plaintiff must file the petition for review of EPA’s action “within 120 days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such 120th day.”[22] This provision applies only to national standards of performance,[23] determinations of source categories,[24] effluent standards, prohibitions, or pretreatment standards,[25] effluent limitations,[26] determinations of state permit programs or issuing or denying permits under the National Pollutant Discharge Elimination System,[27] or information and guidelines issued pursuant to 33 U.S.C. § 1314.
Comprehensive Environmental Response Compensation and Liability Act (CERCLA)
Congress passed the Comprehensive Environmental Response Compensation and Liability Act (CERCLA or Superfund) in 1980 to provide funds to clean up major hazardous waste sites. Congress authorized EPA to administer the fund and authorized the D.C. Circuit to review challenges to regulations that EPA promulgates. CERCLA provides a statute of repose that allows a plaintiff to challenge “any regulation promulgated under th[e] chapter” for “ninety days from the date of promulgation of such regulations.”[28] Thus, Corner Post can be distinguished and should not apply to facial challenges of CERCLA regulations.[29]
Resource Conservation Recovery Act (RCRA)
Congress passed the Resource Conservation Recovery Act (RCRA) in 1976. RCRA authorizes EPA to regulate solid hazardous and nonhazardous waste. A plaintiff may challenge EPA’s promulgation of a regulation under RCRA “within ninety days from the date of such promulgation or denial, or after such date if such petition for review is based solely on grounds arising after such ninetieth day.”[30] Corner Post should not apply to regulations that EPA has promulgated under RCRA.
Looking Ahead
As we discussed in our podcast and other analyses, it is important to consider the effect of the Supreme Court’s term as a whole. For example, we will be watching whether petitioners try to use Corner Post and Loper Bright to expand administrative instability for regulations.
We will continue tracking any significant challenges to both new and longstanding environmental regulations.
Table 1. Applicability of Corner Post to EPA Statutes
| Statute |
Agency |
Judicial Review Provision |
Statute of Repose[31] |
Is Corner Post likely to apply to facial challenges? |
| CERCLA |
EPA |
42 U.S.C. § 9613 |
“within ninety days from the date of promulgation of such regulations” |
No |
| CAA |
EPA |
42 U.S.C. § 7607 |
“within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register” unless the petition is “based solely on grounds arising after such sixtieth day.” |
No |
| CWA |
EPA |
33 U.S.C. § 1369 |
“within 120 days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such 120th day.” |
No |
| RCRA |
EPA |
42 U.S.C. § 6976 |
“within ninety days from the date of such promulgation or denial, or after such date if such petition for review is based solely on grounds arising after such ninetieth day” |
No |
[1] “[A] statute of limitations creates ‘a time limit for suing in a civil case, based on the date when the claim accrued… A statute of repose, on the other hand, puts an outer limit on the right to bring a civil action. That limit is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant.” CTS Corp. v. Waldburger, 573 U.S. 1, 7-8 (2014).
[2] Corner Post slip op. at 2, citing 15 U. S. C. §1693o–2(a)(3)(A).
[3] Corner Post slip op. at 2, citing Debit Card Interchange Fees and Routing, 76 Fed. Reg. 43394 (2011).
[4] NACS v. Board of Governors of FRS, 958 F. Supp. 2d 85, 95-96 (D.D.C. 2013); NACS v. Board of Governors of FRS, 746 F.3d 474, 477 (2014).
[5] N. Dakota Retail Ass’n v. Bd. of Governors, 55 F.4th 634, 638 (8th Cir. 2022).
[6] Id.
[7] Corner Post slip op. at 6, citing 5 U.S.C. § 702.
[8] Section 2401 establishes the default statute of limitations for cases against the government. See Corner Post Slip Op. at 7-8, citing 28 U. S. C. § 2401(a).
[9] Corner Post slip op. at 4 (Jackson, J. dissenting). She explains that “[f]or many kinds of legal claims, accrual is plaintiff specific because the claims themselves are plaintiff specific. But facial administrative-law claims are not. This means that, in the administrative-law context, the limitations period begins not when a plaintiff is injured, but when a rule is finalized.” Id. at 6.
[10] Corner Post slip op. at 4 (Jackson, J., dissenting)
[11] Id. at 2. Indeed, in amici, the Small Business Associations argues that the regulatory uncertainty that this case invites will make it more challenging for businesses to plan and make investments. Amicus Brief for Small Business Associations Supporting Respondent at *10, Corner Post, Inc. v. Board of Gov. of the Fed. Reserve Sys., No. 22-1008 (2024), https://www.supremecourt.gov/DocketPDF/22/22-1008/293837/20231220125019472_2023.12.20%20FOR%20FILING%20-%20DF%20Corner%20Post%20Brief.pdf.
[12] For as-applied challenges, Corner Post is not likely result in any significant changes; the statute of limitations for as-applied challenges has been and will continue to be determined by when the claim arises or the plaintiff is injured.
[13] When two statutory schemes conflict, courts generally apply the more specific language. The D.C. Circuit has held that this principle is “no less true with respect to statutes of limitations.” Howard v. Pritzker, 775 F.3d 430, 438 (D.C. Cir. 2015).
[14] Corner Post slip op. at 9-10.
[15] The Inflation Reduction Act of 2022 added new grant programs to the Clean Air Act and established a methane waste fee but did not make significant revisions to EPA’s existing regulatory authority. See 42 U.S.C. § 7432-38.
[16] This provision specifies that judicial review is available in the D.C. Circuit for National Ambient Air Quality Standards, emissions standards for stationary sources, standards for hazardous air pollutants, nationally applicable standards for vehicles, nationally applicable fuel standards, but also includes “any other nationally applicable regulations promulgated, or final action taken. Local and regional actions including implementation plan approvals may be challenged in the appropriate circuit court. 42 U.S.C. § 7607.
[17] There is a long history of courts struggling to define what constitutes circumstances arising after 60 days, and the D.C. Circuit chose to not review the question in 2019. See Alon Ref. Krotz Springs, Inc. v. Env’t Prot. Agency, 936 F.3d 628 (D.C. Cir. 2019), citing Nat’l Min. Ass’n v. U.S. Dep’t of Interior, 70 F.3d 1345, 1347 (D.C. Cir. 1995), citing Nat’l Min. Ass’n v. U.S. Dep’t of Interior, 70 F.3d 1345 (D.C. Cir. 1995).
[18] Growth Energy v. Env’t Prot. Agency, 5 F.4th 1, 13 (D.C. Cir. 2021); Med. Waste Inst. & Energy Recovery Council v. E.P.A., 645 F.3d 420, 427 (D.C. Cir. 2011).
[19] 42 U.S.C. § 7607.
[20] EPA, Summary of the Clean Water Act, https://www.epa.gov/laws-regulations/summary-clean-water-act (last visited July 8, 2024).
[21] Corner Post, slip. op. at 5.
[22] 33 U.S.C. § 1369.
[23] Under 33 U.S.C. § 1316.
[24] Under 33 U.S.C. § 1316(b)(1)(c).
[25] Under 33 U.S.C. § 1317.
[26] Under 33 U.S.C. §§ 1311, 1312, 1316, 1345.
[27] Under 33 U.S.C. § 1342.
[28] 42 U.S.C. § 9613, though note that under National Association of Manufacturers. v. U.S. Dep’t of Interior, significant amendments may renew this clock. 134 F.3d 1095, 1103 (D.C. Cir. 1998).
[29] CERCLA sets longer statutes of limitations for challenges to contribution claims (3 years) and remedial actions (6 years).
[30] RCRA provides that Review of promulgation of regulations or denials of petitions for promulgations must be filed within 90 days of promulgation or denial in the D.C. Circuit. It further provides that “review of the…issuing, denying, modifying, or revoking any permit under section 6925 … or (2) in granting, denying, or withdrawing authorization or interim authorization under section 6926 of this title…shall be made within ninety days from the date of such issuance, denial, modification, revocation, grant, or withdrawal, or after such date only if such application is based solely on grounds which arose after such ninetieth day.” 42 U.S.C. § 6976.
[31] Note that for any of these statutes, there may be different statutes of limitations for as-applied challenges.
