Natural Resources Defense Council, Inc. v. U.S. E.P.A.

Decision Date11 November 1974
Docket NumberNo. 72-2145,72-2145
Citation507 F.2d 905
Parties, 5 Envtl. L. Rep. 20,032 NATURAL RESOURCES DEFENSE COUNCIL, INC., a non-profit New York corporation, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Richard E. Ayres (argued), Natural Resources Defense Council, Washington, D.C., for petitioners.

Thomas C. Lee (argued), and James R. Moore, Attys. (argued), Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for respondent.

Before TRASK and SNEED, Circuit Judges, and LINDBERG, * District judge.

OPINION

TRASK, Circuit Judge:

Petitioners, the Natural Resources Defense Council, Inc. (NRDC), a nonprofit corporation, the Arizona Nurses' Association, also a nonprofit corporation, and Dr. Richard Abbuhl, individually, challenge the approval by the Environmental Protection Agency (EPA) of various portions of the implementation plan submitted by the State of Arizona under the Clean Air Act Amendments of 1970, 42 U.S.C. 1857 et seq. (the Act). This court's jurisdiction to entertain the challenge is founded upon Section 307(b)(1) of the Act, 42 U.S.C. 1857h-5(b) (1). 1

The federal-state cooperative scheme of the Act has been well described elsewhere. 2 For present purposes, it is necessary only to reiterate briefly that the Act charges the EPA with responsibility for setting national primary and secondary ambient air quality standards, 3 and imposes upon the EPA the duty of ensuring that the implementation plans of the various states provide for both the attainment of these standards within the statutorily prescribed time periods and the maintenance of these levels thereafter. 42 U.S.C. 1857c-4, 1857c-5. Petitioners contend that the EPA has breached this duty by approving those elements of the Arizona implementation plan 4 which (1) allow the State to grant variances in a manner unauthorized by the Act; (2) inadequately provide for the full disclosure of emissions data by individual sources of air pollution; and (3) provide for the issuance of permits for new and modified sources of pollution in a manner insufficient to guarantee the attainment and maintenance of national air standards.

Before appraising the merits of these substantive issues raised by petitioners, we shall first consider the standing of each petitioner to assert these arguments before this court.

Standing

The Tenth Circuit, in a similar action brought by the NRDC to test the adequacy of the Colorado, New Mexico, and Utah implementation plans, dismissed the petition for lack of standing. Natural Resources Defense Council, Inc. v. EPA, 481 F.2d 116 (10th Cir. 1973). The court refused to read into Section 307(b)(1) of the Act, 42 U.S.C. 1857h-5(b)(1), a standing requirement more liberal than that applied by the Supreme Court in other cases in which standing to sue was predicated upon a specific statutory authorization. 481 F.2d at 120-121. We agree with this construction of section 307(b)(1). Given the inexorable interrelationship between standing and the constitutional prerequisites of federal jurisdiction under Article III of the Constitution, Flast v. Cohen, 392 U.S. 83, 98, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), we are unable to accept the NRDC's contention that the statute could confer standing without a prior showing of 'injury in fact.' See Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 151-152, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Nor does the legislative history of the section demonstrate, as the NRDC avers, that this is what Congress intended when it established this mode of review for EPA decisionmaking. 5

The Supreme court, in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), and Data Processing, supra, has required litigants who assert standing based upon an enabling statute (as here) to demonstrate that they have suffered an 'injury in fact' and that this injury is 'arguably within the zone of interests' to be protected by the applicable statute. Sierra Club, supra 405 U.S. at 732-733, 92 S.Ct. at 1365; Data Processing, supra 397 U.S. at 152-153, 90 S.Ct. 827. The 'injury in fact' requirement necessitates a showing that the party seeking review be himself among the injured. Sierra Club, supra 405 U.S. at 735, 92 S.Ct. 1361. Neither petitioners nor respondent has seen fit to enlighten the court with respect to the identity of the 'petitioners,' their relationship to the State of Arizona, if any, or just how they or any of them are among those who might be injured by any deficiency in the Arizona State implementation plan. The Petition for Review cryptically states in its entirety:

'Natural Resources Defense Council, Inc., Project on Clean Air; Dr. Richard Abbuhl; the Arizon State Nurse's Association petition this court for review of the rules and regulations promulgated by respondent (37 Fed.Reg. 10842 (May 31, 1972), 40 CFR Part 52, Subchapter C) insofar as they approve the state air pollution implementation plan for the state of Arizona.'

We therefore requested additional briefs addressed to the critical jurisdictional question that we raised sua sponte. Respondent argued that no sufficient showing had been made and requested that the petition be dismissed. Petitioners, without seeking to amend their petition or supplement the record, see Fed.R.App.P. App.P. 16(b), simply described themselves in an unverified memorandum as follows: (1) The National Resources Defense Council, with offices in Palo Alto, California; New York City, New York; and Washington, D.C., is a New York nonprofit corporation that comprises approximately 16,000 members, 107 of whom are residents of Arizona. There has been no allegation or showing on the record in this court that the Arizona members have either requested to be represented or consented to be represented by the NRDC in this action. (2) The Arizona Nurses' Association is a nonprofit Arizona corporation with approximately 2,300 nurses as members throughout the State of Arizona. The memorandum states that 'the Association testified' at some of the public hearings on the Arizona State implementation plan. (3) Dr. Abbuhl is a resident and medical practitioner of Phoenix, Arizona.

While the Arizona resident members of the nonprofit organizations breathe the air of the State and their health and well-being may be affected by pollutants in the air, the constituent corporations neither breathe the air nor is their corporate health affected by it. 6 On the basis of the record before us we are unconvinced that the NRDC has sufficiently asserted or made a showing within Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), to qualify as possessing standing. In a supplemental statement, it is alleged that some of the nurses of the Arizona Nurses' Association participated in the Arizona hearings, but on the basis of the petition it is doubtful if this corporation is in any better position than the NRDC. There is no doubt, however, that Dr. Abbuhl, as a resident of Arizona, will suffer injury if compelled to breathe air less pure than that mandated by the Clean Air Act. See United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); id. at 703, 93 S.Ct. 2405 (Douglas, J., dissenting in part). On this basis, we are satisfied that there is sufficient individual interest presented in this petition for review to allow us to go forward. The petition is dismissed, however, as to petitioners NRDC and the Arizona Nurses' Association.

With this preliminary jurisdictional inquiry aside, we may now address seriatim the specific objections of petitioner Abbuhl to the Arizona implementation plan.

Variances

Under the Arizona statute, any individual source of pollution may apply for a 'conditional permit' allowing the source to vary from the requirements of the State's implementation plan. Such variances may be granted if 'additional time is needed for compliance and . . . the conditional permit, if granted, will not unduly endanger human health or safety either directly or indirectly.' Ariz.Rev.Stat. 36-1712 (West Supp. 1973). Petitioner advances three reasons why this provision should have been disapproved by the EPA as inconsistent with the dictates of the Act. First, this procedure allegedly circumvents the only express mechanism in the Act through which individual exemptions from the requirements of a state's implementation plan may be granted. Secondly, petitioner contends that this element of Arizona's plan improperly interjects economic considerations into the State's program through which national air quality standards are to be attained and maintained. Finally, petitioner asserts that this provision may interfere with Arizona's ability to regulate in conformity with these standards new and modified sources of pollution. For the reasons hereinafter set forth we reject these contentions of petitioner.

According to petitioner, an individual source of pollution may secure a variance from any requirement of a state's implementation plan only by application to the EPA, by the governor of the state in question, for a 'postponement' under Section 110(f) of the Act, 42 U.S.C. 1857c-5(f). The EPA, responding to this argument in earlier challenges to the Agency's approval of state plans containing similar allowances for variances, construed section 110(f) as relevant only to those exemptions from a state plan that would preclude the attainment or maintenance of national ambient air standards. Natural Resources Defense Council, Inc. v. EPA, 478 F.2d 875, 886 (1st Cir. 1973). The EPA viewed the Act as enabling a state to grant 'variances,' subject to approval by the EPA, for reasons other than those denominated in section 110(f) as long as such variances were minor, i.e., did not inhibit national air quality standards. Id. The EPA has since acceded to an intermediate interpretation, articulated by the First...

To continue reading

Request your trial
34 cases
  • CONCERNED CITIZENS AROUND MURPHY v. Murphy Oil USA
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • February 4, 2010
    ... ... MURPHY OIL USA, INC ... Civil Action No. 08-4986 ... United ... enhance the quality of the Nation's air resources so as to promote the public health and welfare." ... to achieve the standards established by the EPA, see 42 U.S.C. § 7410(a). The Act requires ... to serve as the defendant's natural adversary. See United Food and Commercial ... See, e.g., Hosp. Council of Western Penn. v. City of Pittsburgh, 949 F.2d ... plan may provide an affirmative defense for permit violations caused by circumstances ... ...
  • United States v. Mongol Nation
    • United States
    • U.S. District Court — Central District of California
    • February 28, 2019
    ... ... Brunwin, Steven R. Welk, Office of US Attorney, Los Angeles, CA, for Plaintiff. Elliot ... filed a lawsuit against Toys "R" Us, Inc. for selling yo-yos with a design confusingly ... a decade the United States has expended resources seeking forfeiture of the Mongol Nation's ... Res. Def. Council, Inc. v. E.P.A. , 507 F.2d 905, 911 n.6 (9th ... The defense witnesses at trial included a Mongols member who ... ...
  • Cal. Tahoe Regional Planning v. Sahara Tahoe Corp.
    • United States
    • U.S. District Court — District of Nevada
    • February 20, 1981
    ... ... vegetation chosen to conform with the natural vegetation of the area ... Cal-TRPA v. Sahara Tahoe Inc., et al., CIV-R-79-9-ECR (D.Nev., filed Jan. 15, ... Pub. Resources Code § 21000, et seq., and failed to do so; 7 ... of the Environmental Protection Agency (EPA), be compelled to maintain the provisions of ... its interpretation of Natural Resources Defense Council, Inc. v. EPA, 475 F.2d 968 (D.C.Cir ... ...
  • Center for Biological Diversity v. Abraham
    • United States
    • U.S. District Court — Northern District of California
    • July 30, 2002
    ... ... of operating on alcohol-based fuels, natural gas, biomass fuels, electricity, and other ... , between 1996 and 2001 the Department of Defense acquired 9353 fewer AFVs than required. On the ... Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., ... the strategic oil reserves that shield us from another world oil disruption; to implement ... needless consumption of all parties' resources. The parties are therefore ORDERED to ... 3d at 1194-96; Natural Resources Defense Council ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Proposed Citizens Right to Standing Act-finding the Keys to Unlock the Courthouse Doors
    • United States
    • Seattle University School of Law Seattle University Law Review No. 3-01, September 1979
    • Invalid date
    ...standing to an organization that did not show injury in fact to itself or its members. Natural Resources Defense Council, Inc. v. EPA, 507 F.2d 905 (9th Cir. 1974). The court said the "inexorable interrelationship between standing and the constitutional prerequisites of federal jurisdiction......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT