Anaconda Company v. Ruckelshaus

• Decision Date: 08 August 1973
• Docket Number: No. 73-1272.,73-1272.
• Parties: The ANACONDA COMPANY, a Montana corporation, Plaintiff-Appellee, v. William D. RUCKELSHAUS, Administrator of the United States Environmental Protection Agency, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

482 F.2d 1301 (1973)

The ANACONDA COMPANY, a Montana corporation, Plaintiff-Appellee, v. William D. RUCKELSHAUS, Administrator of the United States Environmental Protection Agency, et al., Defendants-Appellants.

No. 73-1272.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted July 11, 1973.

Decided August 8, 1973.

Rehearing Denied September 5, 1973.

Henry J. Bourguignon, Atty., Dept. of Justice (Wallace H. Johnson, Asst. Atty. Gen., James L. Treece, U. S. Atty., and Charles W. Johnson, Asst. U. S. Atty., Denver, Colo., and James A. Glasgow and Carl Strass, Attys., Dept. of Justice, on the brief), for defendants-appellants.

Harry L. Hobson of Holland & Hart, Denver, Colo. (Robert T. Connery and R. Brooke Jackson, Holland & Hart, Denver, Colo., on the brief), for plaintiff-appellee.

Before LEWIS, Chief Judge, and McWILIAMS and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is an action instituted in the United States District Court for Colorado by Anaconda Copper Company of Butte, Montana, seeking injunctive relief against various officials of the Environmental Protection Agency. Plaintiff sought relief against the promulgation of a proposed rule controlling emissions of sulfur oxide in Deer Lodge County, Montana unless and until defendants-appellants conduct an adjudicatory hearing and unless and until it promulgates an environmental impact statement. The district court granted the requested relief in an extensive opinion which is reported at 352 F.Supp. 697 (D.Colo.1972).

The suit was instituted here September 26, 1972. The trial court heard testimony on the preliminary injunction request for three days at the completion of which the mentioned declaratory judgment and injunctive relief were issued.

As a partial basis for jurisdiction, the trial court invoked 42 U.S.C. § 1857h-2 authorizing citizen suits to enforce the Act. The trial court also considered the case as one in which the plaintiff's constitutional rights were in jeopardy and reasoned that the emergency relief was justifiable on this ground.

The questions presented to this court on appeal are first, whether the Environmental Protection Agency must file an environmental impact statement before it proposes or promulgates a regulation as part of a state implementation plan under § 110(c) of the Clean Air Act Amendments of 1970. Second, whether the Environmental Protection Agency is obligated to grant to Anaconda an adjudicatory hearing with the right to subpoena and cross-examine witnesses before promulgating or indeed holding further hearings on its proposed regulation under § 110(c) of the Clean Air Act Amendments. The crucial aspect of the case is then the validity of the proposed EPA regulation for the control of sulfur oxide emissions in Deer Lodge County, Montana where Anaconda operates its smelter. The company is the only significant source of sulfur oxide pollution in the county and so concededly the proposed regulation, although general in form, would apply to Anaconda alone.

Preliminary to the issuance by EPA of the proposed regulation, efforts were made to persuade state officials to issue a plan as required by the Clean Air Act Amendments of 1970. The Montana State Board of Health held a public hearing on Montana's proposed implementation plan. Anaconda was present and presented its views on the state's proposed regulation for restricting sulfur oxide emissions. Following this hearing, Montana submitted to the EPA an implementation plan, but the provision for control of sulfur oxide emissions was omitted. The state plan then was disapproved by the EPA on May 31, 1972 insofar as it excluded the sulfur oxide emissions provisions. Following this action the administrator of the EPA, on July 27, 1972, proposed a regulation to control the emission of sulfur oxide within the County. This proposal would have limited emissions to a discharge of 7,040 pounds of sulfur oxides per hour. At the same time, EPA gave notice of intent to hold public hearings on its proposal on a date 30 days after the issuance. This provision of the regulation is said to have been patterned after the sulfur oxide emissions limitation which had been in the state's proposal which was deleted.

Anaconda immediately demanded an adjudicatory hearing on EPA's proposed regulation, but EPA's reply was that the public hearings were to be legislative or informational and not adjudicatory. Subsequently, it was further explained that the hearing would not be conducted in the nature of a trial. Instead, any interested persons or corporations could make a statement and all relevant testimony would be received. Also, the hearing record would remain open until October 7, 1972, for written statements or other submissions. After that there would be a further hearing to allow further public statements.

Anaconda's position expressed at the hearing was that it was spending large sums of money on its own initiative in an effort to control sulfur oxide emissions; that it was preparing to restrict them from the current rate of 64,000 pounds per hour to 50,000 pounds per hour. Its position was further expressed that the 7,040 pounds per hour would be technologically and economically unfeasible and would create a significant water pollution problem.

Soon after this the present suit was filed (on September 26, 1972). An extensive evidentiary hearing was conducted. The district court then rendered its decision on December 19, 1972.

The question which we must first determine is whether it was proper for the district court to entertain the injunction suit in view of the fact that the administrative proceedings had not been completed and the statute calls for review by the court of appeals for the appropriate circuit (in this instance the Ninth). We conclude that it was not.

The other points advanced, as we have mentioned, are whether the EPA is subject to the NEPA requirement of environmental impact statements and whether an adjudicatory hearing must be held. The three mentioned issues are somewhat interrelated. Thus, under some circumstances, injunctive action by the district court is proper. Without attempting to formulate a general rule here, such action is ordinarily inappropriate in the middle of the administrative process unless the administrative action is virtually final and threatens irreparable injury consisting of a gross violation of fundamental rights.

I.

The presence of a statutory review remedy will ordinarily render the injunctive interruption of the administrative process improper. See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938); Smith v. Duldner, 175 F.2d 629 (6th Cir. 1949); Gates v. Woods, 169 F.2d 440 (4th Cir. 1948). In the statute before us Congress has specifically provided that review of an approval or implementation plan is to be filed only in the United States Court of Appeals for the District of Columbia Circuit or for the appropriate circuit. See 42 U.S.C. § 1857h-5(b)(1). The intent of Congress to make the court of appeals the exclusive forum is apparent from that wording.¹ Unquestionably injunctive relief in this context is a form of judicial review, 3 Davis Administrative Law Treatise § 23.04 (1958), but the injunction does not lie when the statutory remedy is adequate as it is here. The court of appeals is authorized to review all of the questions. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L.Ed. 893 (1937); Anniston Mfg. Co. v. Davis, 301 U.S. 337, 345-346, 57 S.Ct. 816, 81 L.Ed. 1143 (1937). Indeed, it may even grant an injunction. See Eastern Greyhound Lines v. Fusco, 323 F.2d 477 (6th Cir. 1963); Public Utilities Comm'n v. Capital Transit Co., 94 U.S.App.D.C. 140, 214 F.2d 242 (1954); 28 U.S.C. § 1651.

It cannot be successfully argued that § 1857h-2(a)(2) which authorizes a citizen to commence a civil action against the administrator for failure to perform a non-discretionary duty justifies jurisdiction in this case since Congress has made clear in § 1857h-5(b)(1) that the courts of appeals are to review the promulgation or implementation of a clean air plan.

Without question the present proceedings were of this character, and so the only effect of this action is to frustrate the administrative proceedings and to intrude on the court of appeals' function. To allow review by way of injunction in the case at bar could only serve to cause delay and to take the case up in a district court removed from the scene is not appropriate either, for it could conceivably encourage forum shopping and the thwarting of procedures which Congress has carefully adopted. It follows then that where, as here, Congress has specifically designated a forum for judicial review of administrative action and does so in unmistakable terms except under extraordinary conditions, that forum is exclusive. See Getty Oil Company (Eastern Operations) v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S. Ct. 937, 35 L.Ed.2d 256 (1973). A further reason for denying jurisdiction in this case is that the cause was not ripe for injunctive relief. The regulation here under review was merely a proposed one and not formalized and final. The problem here is much like that before the Supreme Court in Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967). There the regulation had been promulgated but not applied to the particular litigant and the Court held that the promulgation of the regulation did not injure the party involved since there was no certainty that it would be brought to bear on him. The Court added:

We believe that judicial appraisal of these factors is likely to stand on a much surer footing in the context of a specific application of this regulation than could be the case in the framework of the generalized challenge made here.

This court had a somewhat similar problem before it in Pax Company of Utah v. United...