Sierra Club v. Gorsuch, 80-2218
| Decision Date | 02 November 1983 |
| Docket Number | No. 80-2218,80-2218 |
| Citation | 230 U.S.App.D.C. 179,715 F.2d 653 |
| Parties | , 230 U.S.App.D.C. 179, 13 Envtl. L. Rep. 20,809 SIERRA CLUB, Petitioner, v. Anne M. GORSUCH, Administrator, Environmental Protection Agency, Respondent, American Mining Congress, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Howard Fox, Washington, D.C., with whom Joseph J. Brecher, Oakland, Cal., was on brief, for petitioner.
Jesse Carrillo, Atty., Dept. of Justice, with whom Peter H. Wyckoff, Atty., E.P.A., Washington, D.C., was on brief, for respondent. Patrick J. Cafferty, Jr., Elizabeth Stein, Attys., Dept. of Justice, and Bruce M. Diamond, Atty., E.P.A., Washington, D.C., also entered appearances, for respondent.
Robert T. Connery, with whom Roberta L. Halladay and Paul D. Phillips, Denver, Colo., were on brief, for intervenors.
Before GINSBURG, Circuit Judge, BAZELON and MacKINNON, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
Petitioner, Sierra Club, challenges the failure of the Environmental Protection Agency (EPA) to place strip mines on the list of pollutant sources subject to fugitive emissions regulations. EPA maintains that no decision has been made whether to include strip mines on the list and that the issue is still under study. EPA argues that until such decision is made, jurisdiction to review the dispute is lacking. 1 We find that jurisdiction does exist, but that the record is inadequate for our review. We therefore remand to the agency for supplementation of the record.
The Clean Air Act (Act) 2 established minimum air quality standards to be achieved in all regions of the country. Prior to 1977, however, the Act contained no explicit provision to prevent areas where air quality exceeded the statutory minimum from degenerating to that level. In 1974, following Sierra Club v. Ruckelshaus, 3 EPA promulgated regulations establishing a program for "prevention of significant deterioration" (PSD) to prevent such degeneration. In 1977, Congress amended the Act to incorporate a PSD program into the structure of the Act. 4
In areas where PSD provisions apply, major new sources of pollution may not be built without first obtaining a permit from the state in which the source will be located. 5 Permits may be issued only to sources that satisfy two principal requirements. First, the owner or operator of the source must demonstrate that emissions from construction or operation of the source will not violate any applicable emissions standard of the Act. 6 Second, the proposed source must be subject to the best available pollution control technology. 7
The PSD provisions of the Act only apply to "major emitting facilities." 8 The Act's definition of that term encompasses sources Prior to Alabama Power Co. v. Costle, 11 EPA's PSD regulations considered all emissions from a source for purposes of determining whether it qualified as a major emitting facility under the Act. In Alabama Power, this court held that the agency could only consider fugitive emissions in such determinations when done pursuant to a rule. 12 The court remanded to the agency for further consideration.
in twenty-eight industrial categories that have the potential to emit 100 tons per year of any regulated pollutant, or any other source with the potential to emit 250 tons or more per year of any such pollutant. 9 For purposes of calculating potential emissions, the Act distinguishes between two types of emissions: "point source" emissions, such as those from a chimney; and "fugitive" emissions, which are not emitted from a single point. 10
On remand, EPA proposed revised PSD regulations. The proposal included a list of twenty-seven categories 13 of sources whose fugitive emissions would be taken into account in determining whether a source is a major emitting facility and thus required to meet all requirements for a construction permit from EPA. Strip mines were not among the categories listed. The agency explained, however, that exclusion from the list was not a final decision:
EPA is focusing first on the sources listed above because its experience in quantifying the "fugitive emissions" from such sources is, in general, greater than its experience in quantifying such emissions from other sources. The Administrator over the next several months will consider the need for additional source types to be added to the list beyond those which would be newly regulated ... including strip mines. 14
Sierra Club strongly urged that strip mines be included on the final list. 15 Its On August 7, 1980, EPA promulgated the revised PSD regulations in final form. 19 Strip mines were not included. The agency indicated that its greater experience in quantifying fugitive emissions from the listed sources was the reason that they had been included at that stage. 20
testimony cited the "PEDCo report," 16 an EPA-commissioned study that calculated the emission levels of various strip mine operations. Sierra Club concluded from data in that study that even a small mine producing only one million tons of coal per year would generate fugitive emissions of 1750 tons per year 17 and that between 10% and 15% of those emissions (175 to 262 tons) would be in the dangerous, respirable 10 micron-or-less size range. 18 Thus, many small mines and certainly larger mines would satisfy the 250 tons per year requirement, making them eligible for PSD regulation under the Act.
On November 25, 1980, Sierra Club petitioned EPA for reconsideration of the regulations on the ground that the agency had improperly omitted strip mines from the list. On March 2, 1981, the agency denied the petition. In the agency's response, the administrator explained that the absence of strip mines from the final list "did not mean that the agency had concluded its review of the strip mine question and had decided" not to include strip mines as a source on the list. Instead, the administrator said that the agency was "actively gathering information ... [to] put it in a better position than it is now to reach a final decision on strip mines."
That information-gathering process continues. In the meantime fugitive emissions from new strip mines are not included for purposes of determining whether the mine will result in violation of air quality standards.
On October 6, 1980, Sierra Club petitioned this court for review. The case was consolidated with several others filed by industry petitioners challenging other aspects of PSD regulation. 21 Briefing of the issues was stayed while settlement negotiations on some of the issues--but not the instant question--were conducted. On February 8, 1982, EPA moved to dismiss Sierra Club's petition for review on the ground that EPA had not yet taken final action on whether to include strip mines in the PSD regulations. This court then severed Sierra Club's petition for review from the consolidated cases and referred EPA's motion to dismiss to the merits panel.
Section 307(b)(1) of the Act 22 vests jurisdiction in this court to review "final action" of the administrator, and action of the administrator concerning "nationally applicable regulations." Although the Act does not define the terms "action" or "final action," both terms have traditional meanings in the administrative context. The Administrative Procedure Act (APA) 23 defines "agency action" to include "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act ...." 24 The requirement of finality is in essence a question of ripeness, focusing on the appropriateness of the issues presented for judicial review. Courts have approached this determination in a pragmatic way, considering "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." 25
In the instant case, jurisdiction over Sierra Club's claim exists because its petition challenges EPA's list of sources as promulgated. The inclusion of strip mines was clearly an issue in that rulemaking, as strip mines had been regulated by the PSD regulations invalidated by Alabama Power, 26 and Sierra Club had submitted comments on the issue. The regulations under challenge became final the date they were published in the Federal Register, and review of the regulation was appropriate any time thereafter. 27 Indeed, the judicial review provisions of the Act would seem to suggest that review had to be sought immediately, if at all. 28
The source of our jurisdiction does, however, narrow the focus of the issue presented. At issue is only the validity of EPA's promulgated rule, not the independent necessity of future rules that EPA might promulgate concerning strip mines. EPA confuses this point when it contends that judicial review is inappropriate for lack of agency final action. We are not deciding whether regulations covering strip mines would have been required in the absence of an ongoing proceeding. Sierra Club's position, as best we can piece it together, is that given the agency's criteria for placing a category of sources on the August 7, 1980, list, strip mines should have been included. 29 The scope of our jurisdiction is fully adequate to consider that claim.
The scope of our review is set forth in section 307(d) of the Act, 30 the rulemaking provision under which EPA promulgated the regulations. Section 307(d)(9) authorizes a reviewing court to reverse action by the Administrator found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The court is aided in its review by section 307(d)(6)(B), which requires that a rule promulgated by EPA "be accompanied by a response to each of the significant...
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