Indiana & Michigan Elec. Co. v. U.S. E.P.A., s. 82-1733

• Decision Date: 11 May 1984
• Docket Number: 82-1738,Nos. 82-1733,s. 82-1733
• Citation: 733 F.2d 489
• Parties: , 86 A.L.R.Fed. 597, 14 Envtl. L. Rep. 20,506 INDIANA & MICHIGAN ELECTRIC COMPANY and Indianapolis Power & Light Company, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 489

733 F.2d 489

21 ERC 1487, 86 A.L.R.Fed. 597, 14

Envtl. L. Rep. 20,506

INDIANA & MICHIGAN ELECTRIC COMPANY and Indianapolis Power &amp Light Company, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 82-1733, 82-1738.

United States Court of Appeals Seventh Circuit.

Argued Jan. 3, 1984.

Decided May 11, 1984.

Bryan G. Tabler, Barnes & Thornburg, Indianapolis, Ind., for petitioners.

David T. Buente, U.S. Dept. of Justice, Washington, D.C., for respondents.

Before WOOD, ESCHBACH and POSNER, Circuit Judges.

POSNER, Circuit Judge.

In 1979 the Indiana Air Pollution Control Board submitted to the U.S. Environmental Protection Agency a revision of its plan for compliance ("state implementation plan") with air quality standards that the EPA had established pursuant to the Clean Air Act of 1970, as amended, 42 U.S.C. Secs. 7401 et seq. Indiana's revised plan established a ceiling on emissions of sulphur dioxide but also provided that a source would be considered to be in compliance if its daily emissions, when averaged over thirty days, did not exceed the ceiling. This was in recognition of the fact that the sulphur content of the coal consumed in a coal-burning electrical generating plant can vary substantially from day to day. However, when on March 12, 1982, the EPA approved Indiana's revised plan, it stated that it was "taking no action on the 30-day averaging compliance concept." 47 Fed.Reg. 10823. Two Indiana utilities have petitioned for review of this determination. Although the petition for review challenges other aspects of the EPA's order of March 12 as well, the other challenges became moot while the review proceeding was pending.

The EPA questions our jurisdiction. It says the utilities should have filed their petition in a district court, not this court. Although section 307 of the Clean Air Act, 42 U.S.C. Sec. 7607(b)(1), gives the courts of appeals jurisdiction of "review of the Administrator's action in approving or promulgating any implementation plan," including a revised plan, section 304 provides that "any person may commence a civil action on his own behalf ... against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator .... The district courts shall have jurisdiction ... to order the Administrator to perform such act or duty ...." 42 U.S.C. Sec. 7604(a). The utilities' contention that the Administrator had no discretion to refuse to act on the 30-day averaging provision brings the petition for review within the literal reach of section 304, but we do not think the section was intended to cover cases such as this, where a complaint about agency inaction is embedded in a challenge to the validity of an implementation plan. Our reasons are as follows:

1. The ground for giving jurisdiction over agency-inaction cases to the district courts rather than the courts of appeals is that when an agency fails to act there may be no record for the court of appeals to review. Evidence will have to be taken to discover the nature and circumstances of, and the reasons for, the agency's (non)action, and district courts are better equipped to find facts than courts of appeals are. See Currie, Air Pollution: Federal Law and Analysis Sec. 9.11, at p. 9-33 (1981). That is not a problem where the failure to act is announced in an agency order based on an administrative record, as it was here. The EPA's order and record make clear the nature and background of its refusal to act on the 30-day averaging provision. There is no need to create a record for review. We may thus invoke the judge-made presumption in favor of court of appeals review in doubtful cases, a presumption based on the fact that district court review adds another layer to the review process with little gain to the accuracy of the ultimate determination if there are no additional facts to be found. See, e.g., Foti v. Immigration & Naturalization Service, 375 U.S. 217, 232, 84 S.Ct. 306, 315, 11 L.Ed.2d 281 (1963); Rockford League of Women Voters v. Nuclear Regulatory Comm'n, 679 F.2d 1218, 1221 (7th Cir.1982); Illinois v. Schweiker, 707 F.2d 273, 276 (7th Cir.1983); Lorion v. Nuclear Regulatory Comm'n, 712 F.2d 1472, 1478 (D.C.Cir.1983), cert. granted, --- U.S. ----, 104 S.Ct. 1676, 80 L.Ed.2d 52 (1984).

2. To hold that section 304 governs this challenge would mean that in many Clean Air Act matters two judicial proceedings, proceeding simultaneously in different courts, would be necessary for complete review of one administrative order. It is a fluke that the utilities' other challenges to the March 12 order, challenges that had to be brought in the court of appeals, are moot. Judicial economy would be disserved by having different aspects of the same order reviewed in two different courts at once, especially where (as in this case) the agency's inaction relates to an exception to a plan that was approved in other respects, so that the issues of inaction and of approval are entwined.

3. The previous point establishes a textual basis for classifying this as a section 307 case. Section 304 empowers the district court "to order the Administrator to perform such act or duty ...." The utilities are not asking that the EPA be ordered to act on the 30-day compliance provision. They are asking that the EPA's order adopting the revised state plan without the provision be set aside. That is section 307 relief.

For these reasons we hold that judicial review of an EPA order approving or promulgating, in whole or part, a state implementation plan, original or revised, lies in the courts of appeals under section 307 even when the challenge to the order includes a contention that the EPA failed to do something that it had no discretion not to do. See City of Seabrook v. Costle, 659...