Bethlehem Steel Corp. v. U.S. E.P.A.
| Decision Date | 21 January 1976 |
| Docket Number | 75-1590,Nos. 75-1568,75-1600,75-1569,s. 75-1568 |
| Citation | 536 F.2d 156 |
| Parties | , 6 Envtl. L. Rep. 20,486 BETHLEHEM STEEL CORPORATION, Petitioner, v. U. S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATIONAL STEEL CORPORATION, Petitioner, v. U. S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. CITY OF EVANSVILLE, INDIANA, Petitioner, v. U. S. ENVIRONMENTAL PROTECTION AGENCY, and Russell Train, Administrator, Respondents. PUBLIC SERVICE COMPANY OF INDIANA, INC., Petitioner, v. U. S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Petitioner, v. U. S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. INDIANAPOLIS POWER & LIGHT COMPANY, Petitioner, v. U. S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. to 75-1602. . Heard |
| Court | U.S. Court of Appeals — Seventh Circuit |
Peter G. Veeder, Pittsburgh, Pa., Daniel Joseph, Washington, D. C., Jerry P. Belknap, Bryan G. Tabler, Indianapolis, Ind., John C. Berghoff, Jr., Chicago, Ill., Stephen R. Appel, Evansville, Ind., Charles W. Campbell, Greg K. Kimberlin, Plainfield, Ind., Arnold A. Gordus, Marcus E. Woods, Indianapolis, Ind., for petitioners.
Peter R. Taft, Asst. Atty. Gen., Paul M. Kaplow, Atty., Dept. of Justice, Richard G. Stoll, Jr., Atty., Environmental Protection Agency, Washington, D. C., for respondents.
Before SWYGERT and BAUER, Circuit Judges, and HOFFMAN, Senior District Judge. *
The petitioners challenge on several grounds the designation by the Environmental Protection Agency ("EPA") under the Clean Air Act (42 U.S.C. § 1857 et seq.) ("the Act") of certain areas in Indiana as "air quality maintenance areas" ("AQMA's"). The EPA asks us to dismiss the petitions on the grounds that the challenged agency action is not ripe for review, that the petitioners lack standing to sue, and on the merits of the challenge. We dismiss the petitions on the issue of ripeness.
Under § 109 of the Clean Air Act, EPA is to promulgate national primary and secondary ambient air quality standards to protect the public health and welfare. Under § 110 of the Act, the states are required to adopt and submit to the EPA plans which provide for the implementation, maintenance and enforcement of the national primary and secondary standards. Under § 110(a)(2) (B), state plans are to include:
"(B) . . . emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary or secondary (national ambient air quality) standard, including, but not limited to, land-use and transportation controls."
Under § 110(a)(2) the EPA is to approve or disapprove state plans on the basis of whether the state plan is in accordance with the requirements of § 110(a) (2), including § 110(a)(2)(B) quoted above. Under § 110(c), the EPA may promulgate a plan for a state when the state has failed to submit a plan to the EPA or has submitted a plan which is not in accordance with the requirements of § 110(a)(2).
In Natural Resources Defense Council v. Environmental Protection Agency, 154 U.S.App.D.C. 384, 475 F.2d 968 (1973), the court ordered the EPA to review the adequacy of all state implementation plans to ascertain whether the plans contained measures necessary for maintenance of the national standards. On March 8, 1973, 38 Fed.Reg. 6279 et seq., the EPA disapproved all state implementation plans for failing to contain adequate regulations or procedures for maintenance of national standards.
On June 18, 1973, the EPA published regulations setting forth the requirements and procedure for states to follow in developing air quality maintenance provisions in their implementation plans; to wit:
"(e) The plan shall identify those areas (counties, urbanized areas, standard metropolitan statistical areas, et cetera) which, due to current air quality and/or projected growth rate, may have the potential for exceeding any national standard within the subsequent 10-year period.
(1) For each such area identified, the plan shall generally describe the intended method and timing for producing the analysis and plan required by paragraph (g) of this section.
(2) The area identification and description of method and timing required by this paragraph shall be submitted no later than 9 months following the effective date of this paragraph.
(3) At 5-year intervals, the area identification shall be reassessed to determine if additional areas should be subject to the requirements of paragraph (g) of this section.
(f) Based on the information submitted by the States pursuant to paragraph (e) of this section, the administrator will publish, within 12 months of the effective date of this paragraph, a list of the areas which shall be subject to the requirements of paragraph (g) of this section.
(g) For each area identified by the administrator pursuant to paragraph (f) of this section, the State shall submit, no later than 24 months following the effective date of this paragraph, the following:
(1) An analysis of the impact on air quality of projected growth and development over the 10-year period from the date of plan submittal.
(2) A plan to prevent any national standards from being exceeded over the 10-year period from the date of plan submittal. Such plan shall include, as necessary, control strategy revisions and/or other measures to insure that projected growth and development will be compatible with maintenance of the national standards throughout such 10-year period. * * *
(h) Plans submitted pursuant to paragraph (g) of this section shall be reanalyzed and revised where necessary at 5-year intervals." 40 C.F.R. § 51.12e-h, 38 Fed.Reg. 15836.
After the State of Indiana failed to submit its own AQMA designations within the time limit imposed by the EPA, the EPA exercised its authority under Section 110(c) of the Clean Air Act and issued its own designations. 40 C.F.R. 52.792 (June 2, 1975).
Petitioners challenge both the 1973 air quality maintenance regulations recited above and the particular designations of Porter, Floyd, Marion and Vanderburgh Counties in Indiana as AQMA's.
As to the 1973 regulations, the steel and power company petitioners argue that they should be set aside since they were not promulgated in compliance with the procedural safeguards required by Section 4 of the Administrative Procedure Act, 5 U.S.C. § 553. In addition, the power companies, joined by the City of Evansville, argue that the regulations are invalid since they are not authorized by the Clean Air Act or, if they are found to be authorized by the Act, they constitute an unconstitutional exercise of federal power.
All the petitioners challenge on substantive grounds the designations of the particular Indiana counties as AQMA's.
The EPA raises the issue of whether we should review the validity of the air quality maintenance program and the designation of particular counties as AQMA's now, after the initial designations of AQMA's by the EPA but before the specific maintenance plans are formulated, or defer our consideration until the specific plans are formulated and the petitioners are subject to sanctions for their noncompliance with the control measures which will be included in the plan.
Evansville and the power companies argue that we need not reach this ripeness question since this action is brought under § 307(b)(1) of the Clean Air Act which compels us to review these issues now regardless of their ripeness for review. We disagree. Section 307(b)(1) pertains to the existence of judicial review and the appropriate forum for review, not the timing of review.
The language of the provision does not suggest that it does more than provide for judicial review and an appropriate forum:
Our review of the legislative history does not suggest the contrary. The conference report on the provision states only that its purpose is to ". . . specif(y) the courts in which certain appeals may be prosecuted . . . ." Conf.Rep. No. 91-1783, 3 Cong. & Admin.News 1970, p. 5389. See also S.Rep. No. 91-1196, 91st Cong. 2d Sess. 40-41 (1970).
Finally, while not ruling directly on the point, at least two circuits have dismissed suits brought under Section 307(b)(1) on ripeness grounds. Kennecott Copper Corp. v. EPA (10th Cir., No. 75-1463, March 18, 1976); Buckeye Power, Inc. v. EPA, 525 F.2d 80 (6th Cir. 1975). And at least two circuits have ruled that Section 307(b)(1) does not automatically confer standing. National Resources Defense Council v. EPA, 507 F.2d 905, 908-911 (9th Cir. 1975); Natural Resources Defense Council v. EPA, 481 F.2d 116, 120-121 (10th Cir. 1973).
Having disposed of this threshold question, we can deal with the ripeness issue. The Supreme Court succinctly stated the relevant considerations behind the ripeness doctrine as applied in the context of reviewing administrative agencies' decisions in Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691 (1967):
"(I)t is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."
The Court went on to articulate a methodology for applying the doctrine in a particular case.
"The...
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