Delaware Valley Citizens Council for Clean Air v. Davis
| Decision Date | 06 May 1991 |
| Docket Number | No. 90-1309,No. 90-1410,90-1410,Nos. 90-1309,90-1309,s. 90-1309 |
| Citation | 932 F.2d 256 |
| Parties | , 21 Envtl. L. Rep. 21,055 DELAWARE VALLEY CITIZENS COUNCIL FOR CLEAN AIR; Delaware Valley Toxics Coalition; Sierra Club, Pennsylvania Chapter; Pennsylvania Federation of Sportsmens Clubs; Bicycle Coalition of the Delaware Valley; Girard Estate Area Civic Association; Tolentine Community Center and Development Organization; Thomas G. McFarland and Charles E. Rolan v. Arthur A. DAVIS, Individually, and Arthur A. Davis, as Secretary, Pennsylvania Department of Environmental Resources, Howard Yerusalim, as Secretary, Pennsylvania Department of Transportation, Robert P. Casey, as Governor, Commonwealth of Pennsylvania, the Commonwealth of Pennsylvania, William K. Reilly, as Administrator, U.S. Environmental Protection Agency, Stanley L. Laskowski, as Acting Director, U.S. Environmental Protection Agency Region III, Samuel Skinner, as Secretary, U.S. Department of Transportation, Howard Yerusalim, Individually and as Secretary, Pennsylvania Department of Transportation, Robert P. Casey, Individually, and as Governor of the Commonwealth of Pennsylvania. Delaware Valley Citizens Council for Clean Air; Delaware Valley Toxics Coalition; Sierra Club, Pennsylvania Chapter; Pennsylvania Federation of Sportsmens Clubs, Bicycle Coalition of the Delaware Valley; Girard Estate Area Civic Association; Tolentine Community Center and Development Organization; Thomas G. McFarland and Charles E. Rolan, Appellants inWilliam K. Reilly, as Administrator, U.S. Environmental Protection Agency, Stanley L. Laskowski, as Acting Director, U.S. Environmental Protection Agency Region III, and Samuel Skinner, as Secretary, U.S. Department of Transportation, Appellants in |
| Court | U.S. Court of Appeals — Third Circuit |
Michael Baylson, U.S. Atty., David F. McComb, Asst. U.S. Atty., Office of U.S. Atty., Stephen N. Field, Asst. Regional Counsel, U.S. E.P.A., Office of Regional Counsel, Region III, Philadelphia, Pa., Jill Grant, Office of Gen. Counsel, U.S. E.P.A., and Richard B. Stewart, Asst. Atty. Gen., W. Christian Schumann, David C. Shilton, and Ellen J. Durkee (argued), U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for appellants William K. Reilly, as Adm'r, U.S. E.P.A., Stanley L. Laskowski, as Acting Director, U.S. E.P.A. Region III, and Samuel Skinner, as Secretary, U.S. Dept. of Transp. at No. 90-1410.
Martha E. Blasberg (argued), Asst. Counsel, Dept. of Environmental Resources, Office of Chief Counsel, Eastern Region, Philadelphia, Pa., and Dennis W. Strain, Litigation Coordinator, Department of Environmental Resources, Office of Chief Counsel, Harrisburg, Pa., for appellees Arthur A. Davis, individually, and Arthur A. Davis, as Secretary, Pennsylvania Dept. of Environmental Resources, Howard Yerusalim, as Secretary, Pennsylvania Dept. of Transp., and Robert P. Casey, as Governor, Com. of Pa. at Nos. 90-1309 and 90-1410.
Before STAPLETON, HUTCHINSON and GARTH, Circuit Judges.
Delaware Valley Citizens Council for Clean Air, together with other public interest citizens and community groups and two individuals (collectively "the Citizens"), 1 appeal a final order of the United States District Court for the Eastern District of Pennsylvania. That order dismissed all of the Citizens' claims against appellee Commonwealth of Pennsylvania (Pennsylvania) 2 for violation of the Clean Air Act (Act), 42 U.S.C.A. Secs. 7401-7642 (West 1983 & Supp.1990), and its EPA-approved State Implementation Plan (Plan), as supplemented. The Citizens appeal was docketed here at No. 90-1309. At No. 90-1410, the United States Environmental Protection Agency (EPA) 3 also filed an appeal, limited to that portion of the district court's order that dismissed Count Two of the Citizens' complaint. In its appeal, the EPA asserts that a final decision dismissing Count Two is likely to work a collateral estoppel against it in Pennsylvania's related petition for review of an EPA order docketed at 90-3171, 932 F.2d 269. That petition for review challenges the EPA's refusal of Pennsylvania's request to add a second supplement (Supplement Two) to the Plan. The proposed second supplement would relieve the state from implementing anti-pollution measures set out in an EPA-approved first supplement (Supplement One) to the Plan.
We consolidated the Citizens' appeal at No. 90-1309 and the EPA's appeal at No. 90-1410. We will separately decide the merits of Pennsylvania's petition for review of the EPA's refusal of the state's second supplement.
In the consolidated appeals, the Citizens filed a complaint joining various claims against Pennsylvania and the EPA. Three of the counts the Citizens asserted against Pennsylvania involved claims that the Plan did not contain all of the provisions required by the Act. The remaining count charged Pennsylvania with failing to implement its Plan. The Citizens brought all four claims under 42 U.S.C.A. Sec. 7604, the citizen suit provision of the Act.
The district court's order dismissing the Citizens' claims against Pennsylvania finally disposed of those claims. The district court certified that order as final for immediate appeal under Federal Rule of Civil Procedure 54(b).
Counts One, Three and Four of the Citizens' second amended complaint charged directly that the Plan Pennsylvania had submitted to the EPA for attaining the Act's clean air standard, as revised and approved by the EPA, failed to meet the Act's requirements. We will affirm that portion of the district court's order dismissing those three counts under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Section 7604 of the Act does not give the district court subject matter jurisdiction over the Citizens' private suit alleging that Pennsylvania's Plan failed to comply with the Act. Those claims fall under Sec. 7607 of the Act. Section 7607 applies to suits that seek to compel the adoption of implementation plans that comply with the Act and requires that such suits be initiated as petitions for review in the courts of appeals. Because the Citizens refused to use the procedure that Sec. 7607 requires to compel compliance with the Act, the district court properly dismissed Counts One, Three and Four. We will, however, reverse that portion of the district court's order that dismissed Count Two. In Count Two, the Citizens claim that Pennsylvania has violated the terms of the Plan by failing to take appropriate steps to decrease ozone emissions in the Philadelphia area before March 15, 1985. We cannot eliminate, as a matter of law, the possibility that the Plan, as modified by Supplement One, requires Pennsylvania to undertake additional measures to improve air quality in the Philadelphia metropolitan area. Accordingly, we will vacate that portion of the district court's order dismissing Count Two of the complaint and remand this case to the district court for further proceedings consistent with this opinion.
The Clean Air Act is Congress's response to well-documented scientific and social concerns about the quality of the air that sustains life on earth and protects it from the harmful effects of the hard radiation permeating space beyond the limits of our atmosphere and from the degradation and pollution caused by modern industrial society. Any effort to control the quality of the air over a particular region must take into account many ever changing variables and involve even more fine value judgments about the means and effects of efforts to control and improve the air we breathe. Because of the indeterminate nature of the chaotic processes that affect air quality, and the complexities of the statistical measures used to approximate them, computation of the interactive effect of those variables and the efficacy of all the various means of control from time to time available are likely to generate argument within the scientific and technical community, to say nothing of the arguments from self-interest that the identification and implementation of appropriate pollution control measures are also sure to engender.
The arcane knowledge essential to resolve these disputes reasonably is foreign to non-experts, including judges. Accordingly, to insure, as far as possible, that the measures adopted from time to time to meet the desired end of improved air quality will be generated by reason and not just self-interest or arbitrary power, the statute gives the EPA primary responsibility for the setting of air standards and the means to effect them; but, perhaps in wisdom borne of occasional sad experience with sole reliance on expert bureaucracies to solve technical problems that impinge on the self-interest of powerful private and public groups, the statute also provides a means for publicly interested citizens to obtain judicial enforcement of the standards in the Act and to encourage the pursuit of means appropriate to attain those standards. Thus, on the one hand, Sec. 7607 allows groups such as the Citizens to hold the EPA to the Act's general standards in formulating and approving implementation plans by permitting them to petition for review of those plans in the courts of appeals. On the other hand, Sec. 7604 gives citizens the right to complain in the district courts about failures to act in accord with the terms of...
To continue reading
Request your trial
-
Natural Resources Defense Council, Inc. v. SCAQMD
... ... ; Coalition for a Safe Environment; and Desert Citizens Against Pollution, Plaintiff, ... SOUTH COAST AIR QUALITY ... This case is a citizen suit under Section 304 of the Clean Air Act (sometimes referenced herein as the "Act"), 42 ... This case is similar to Delaware Valley Citizens Council for Clean Air v. Davis, 932 F.2d ... ...
-
Ogden Projects, Inc. v. New Morgan Landfill Company, Inc., Civ. A. No. 94-3048.
...require that all limits credited as reducing a source's potential to emit be federally enforceable"). 16 See Delaware Valley Citizens Council v. Davis, 932 F.2d 256 (3d. Cir.1991) (holding that aggrieved parties may enforce requirements of a SIP under § 304(a)(1) of the CAA); see infra note......
-
Sweat v. Hull
... ... , seek to enforce the requirements of the Clean Air Act ("CAA"), 42 U.S.C. §§ 7401-7627 ... against one of the United States by Citizens of another State, or by Citizens or Subjects of ... Defense Council v. Cal. Dep't of Transp., 96 F.3d 420, 420 (9th ... Friends of the Earth, 535 F.2d at 172; Delaware Valley Citizens Council v. Davis, 932 F.2d 256, ... ...
-
Clean Air Council v. Mallory
... ... Interstate Air Quality Control Region (Pennsylvania New Jersey Delaware) (the "Philadelphia ozone nonattainment area") 2 as a severe ozone ... , commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State ... See Dela. Valley Citizens' Council for Clean Air v. Davis, 932 F.2d 256, 264 (3d Cir.1991) ... ...