475 F.2d 968 (D.C. Cir. 1973), 72-1522, Natural Resources Defense Council, Inc. v. Environmental Protection Agency

Docket Nº:72-1522, 72-1598, 72-1810, 72-1941, 72-1982, 72-1985, 72-2028, 72-2159.
Citation:475 F.2d 968
Party Name:NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent (two cases). FRIENDS OF THE EARTH, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUN
Case Date:January 31, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 968

475 F.2d 968 (D.C. Cir. 1973)

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent (two cases).

FRIENDS OF THE EARTH, INC., et al., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent, Commonwealth of Kentucky, Intervenor.

Nos. 72-1522, 72-1598, 72-1810, 72-1941, 72-1982, 72-1985, 72-2028, 72-2159.

United States Court of Appeals, District of Columbia Circuit.

January 31, 1973

Argued Jan. 22, 1973.

Administrator of Environmental Protection Agency was without authority to permit states to delay submission of transportation control portions of implementation plans under Clean Air Act until February 15, 1973, or to grant extensions until mid-1977 for attainment of national primary ambient air standard without following statutory procedures. Clean Air Act, § 110(e, f) as amended 42 U.S.C.A. § 1857c-5(e, f).

Page 969

David G. Hawkins, Washington, D. C., for petitioners.

Asst. Atty. Gen. Kent Frizzell and Edmund B. Clark, Atty., Dept. of Justice, for respondent.

Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.

ORDER

PER CURIAM:

These causes came on for consideration of petitioners' motion for summary reversal, and the court heard argument of counsel. We must initially determine whether we have jurisdiction over all of these consolidated cases. Section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 1857h-5(b)(1) (1970), provides that a petition for review of the Administrator's action in approving or promulgating any implementation plan "may be filed only in the United States Court of Appeals for the appropriate circuit." We agree with petitioners and with the Court of Appeals for the First Circuit, see Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 1 Cir., 465 F.2d 492 (1972), that by the phrase "the appropriate circuit" Congress did not intend that all suits involving approval of state implementation plans be brought in the judicial circuit where the state is located. Instead, Congress intended to adopt a flexible approach to determine which circuit is appropriate, and application of this approach to the facts of these cases and the legal issues we are presently called upon to decide permits us to hear all of these consolidated cases.

First, elsewhere in the Act, in a provision concerning judicial review of another kind of action by the Administrator, Congress expressly provided that judicial review shall be in the "court of appeals for the circuit which includes such State." See Section 110(f)(2)(B), 42 U.S.C. § 1857c-5(f)(2)(B). That it did not use the same language in Section 307(b)(1) and instead used the vague phrase "the appropriate circuit" indicates that Congress intended the latter phrase to mean something other than the more specific review provision in Section 110(f)(2)(B). Secondly, we might note that failure to interpret Section 307(b)(1) in a flexible manner would produce some anomalous results. The Administrator has informed us that implementation plans in several metropolitan areas cover jurisdictions falling within several circuits. In our own metropolitan area of the District of Columbia and...

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