Environmental Defense Fund, Inc. v. Costle, Civ. A. No. 78-281.

• Decision Date: 15 March 1978
• Docket Number: Civ. A. No. 78-281.
• Citation: 448 F. Supp. 89
• Parties: ENVIRONMENTAL DEFENSE FUND, INC., Plaintiff, Natural Resources Council of Maine, Intervenor, v. Douglas M. COSTLE, Administrator, U.S. Environmental Protection Agency, Defendant, Alabama Power Company et al., Intervenors.
• Court: U.S. District Court — District of Columbia

448 F. Supp. 89

ENVIRONMENTAL DEFENSE FUND, INC., Plaintiff, Natural Resources Council of Maine, Intervenor, v. Douglas M. COSTLE, Administrator, U.S. Environmental Protection Agency, Defendant, Alabama Power Company et al., Intervenors.

Civ. A. No. 78-281.

United States District Court, District of Columbia.

March 15, 1978.

Robert J. Rauch, Bernard A. Gould, Washington, D.C., for plaintiff, Environmental Defense Fund, Inc.

Earl Salo, Peter H. Wyckoff, for defendant, U.S. Environmental Protection Agency.

Edward Lee Rogers, New York City, for plaintiff intervenor, Natural Resources Council of Maine.

George C. Freeman, Jr., Henry V. Nickel, Michael B. Barr, Hunton & Williams, Washington, D.C., for Alabama Power Co. et al.

Francis M. Shea, James R. Bieke, William R. Galeota, Shea & Gardner, Washington, D.C., for The Montana Power Co. et al.

Donald W. Markham, Jonathan B. Hill, Markham & Hill, Washington, D.C., for The Pittston Co. of New York.

John J. Adams, David F. Peters, Hunton & Williams, Richmond, Va., for American Petroleum Institute et al.

Eugene B. Thomas, Jr., Michael F. McBride, Margaret R. A. Paradis, LeBoeuf, Lamb, Leiby & MacRae, Washington, D.C., for Niagara Mohawk Power Corp.

Charles F. Lettow, Henry J. Plog, Jr., O. Ann Horn, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., George P. Cheney, Jr., Pittsburgh, Pa., for PPG Industries, Inc.

Fred F. Fielding, Thomas C. Watson, James Skelly Wright, Jr., Morgan, Lewis & Bockius, Washington, D.C., for Sierra Pacific Power Co.

MEMORANDUM OPINION

PARKER, District Judge:

The Environmental Defense Fund, Inc. (EDF), a nonprofit corporation concerned with the preservation and improvement of the environment, brings this action to challenge the decision of Douglas M. Costle, Administrator of the Environmental Protection Agency (EPA), to defer implementation of § 165(a) of the 1977 Amendments to the Clean Air Act¹ (Act) beyond August 7, 1977, the date of its enactment. This section is one of several new provisions aimed at prevention of significant deterioration (PSD) of air quality in clean air areas of the country and provides that "no major emitting facility on which construction is commenced after the date of the enactment of this part" may be constructed unless a permit has been issued pursuant to several requirements. Facing a conflict between the language of § 165 and other sections of the 1977 Amendments, the Administrator decided not to apply that section to facilities which obtained PSD permits under existing EPA regulations before March 1, 1978.

The plaintiff claims that Administrator Costle has a nondiscretionary obligation to implement § 165 promptly, which he has failed to perform. The EDF brings this citizen suit under § 304(a)(2) of the Act,² seeking declaratory and injunctive relief enforcing § 165 as of August 7, 1977. Before the Court is EDF's motion for preliminary injunction to prevent issuance of permits to facilities not in compliance with the section and to stay construction by any party holding a PSD permit issued since August 7, 1977.³

In opposing the motion for preliminary injunction, the Administrator has been joined by several defendant intervenors, including electric utilities and other companies engaged in the development and production of energy resources.⁴ Generally, they have applied for or have received PSD permits under existing EPA regulations since August 7, 1977, or would be otherwise affected if § 165 were to be applied retroactively to August 7. They have moved to dismiss the complaint for lack of subject matter jurisdiction, alleging that under § 307(b)(1),⁵ review of the Administrator's decision here rests exclusively in the United States Court of Appeals for the District of Columbia. Other intervenors seek dismissal of the complaint for failure to state a cause of action.

The Court has considered the legal memoranda, exhibits, affidavits and argument of counsel and concludes that the Court of Appeals has exclusive jurisdiction of the issues raised here and that the Administrator had discretion to determine when to implement § 165. Accordingly, the complaint must be dismissed for lack of subject matter jurisdiction.

Background

Prior to enactment of the 1977 Amendments, EPA regulations governed PSD program requirements for state implementation plans. 40 C.F.R. § 52.21. New sections 160-169A of the Act follow the basic outline of the regulations by dividing clean air areas into classes, setting allowable increments for various pollutants, and providing for the reclassification of areas. The new sections are, however, more stringent than the regulations in several respects.

To ease the transition, § 168,⁶ entitled "Period Before Plan Approval," provides that until state plans are revised to meet new standards, "applicable regulations . . . shall remain in effect" with three exceptions specified in subsection (b). These exceptions called for immediate amendments to regulations to satisfy the requirements of § 162(a) (classification of parks and wilderness areas as Class I); § 163(b) (allowable increments of sulfur dioxide and particulate matter); and § 164(a) (prohibition of reclassification of certain areas to Class III).

Section 165 is conspicuously absent from the list of immediate changes in § 168(b). However, the language of § 165 calls for immediate implementation, providing in relevant part that:

no major emitting facility on which construction is commenced after the date of the enactment of this part may be constructed in any area to which this part applies unless—

(1) a permit has been issued . . . in accordance with this part . . .

(2) . . . the required analysis has been conducted in accordance with regulations promulgated by the Administrator, and a public hearing has been held . . .

. . . . .

(4) the proposed facility is subject to the best available control technology for each pollutant subject to regulation under this act . . .. (emphasis added)

To clarify the apparent ambiguity created by the interplay of § 168 and § 165, the Administrator requested a technical amendment from Congress. Meanwhile, in a memorandum dated October 6, 1977, EPA ordered its Regional Administrators to apply § 165 retroactively to August 7. On October 27, 1977, noting that a technical amendment was not forthcoming, the Administrator instructed the Regions not to apply § 165 until March 1, 1978.

On November 3, 1977, the Administrator published interrelated rulemaking notices in the Federal Register.⁷ First, as required by § 168, he promulgated final amendments to the EPA PSD regulations and, effectively, to the state plans themselves, implementing §§ 162(a), 163(b) and 164(a) as of August 7. 42 Fed.Reg. 57459. Second, he issued proposed rules amending EPA regulations to incorporate the new preconstruction review procedures of § 165. 42 Fed.Reg. 57479. In the "Supplementary Information" or preamble section of the proposed regulations, he presented the following decision:

EPA has chosen not to make Section 165 effective immediately upon enactment because it is not one of the Sections specified in Section 168 (see introductory discussion in today's Federal Register notice making immediately effective changes to 40 C.F.R. 52.21). There is a substantial legal argument, however, that Section 165(a) was intended to be immediately effective because it applies by its terms to sources which commence construction "after the date of enactment" of the 1977 Amendments. In light of the drafting inconsistencies between Sections 165(a) and 168, EPA feels that the most prudent course is to implement Section 165(a) as quickly as possible, but through the rulemaking process.

Estimating that promulgation of guiding regulations would take four months,⁸ the Administrator announced that § 165 would apply to any new source which had not obtained a PSD permit before March 1, 1978, and had not commenced construction before December 1, 1978, the date revised state implementation plans would be due.⁹

The Environmental Defense Fund objected to the decision to defer application of § 165 in communications to EPA dated November 2, 1977, and February 2, 1978. Obtaining no response, this complaint was filed on February 17, 1978.

Legal Analysis

The plaintiff alleges that this Court has jurisdiction¹⁰ of this citizens suit under § 304(a)(2) of the Clean Air Act, which authorizes any person to commence a civil action on his own behalf in a district court

against the Administrator where there is alleged a failure . . . to perform any act or duty under this act which is not discretionary with the Administrator.

There are two prerequisites for jurisdiction under this section. First, the Court must find that the Court of Appeals for the District of Columbia does not have jurisdiction under § 307(b)(1) to review the Administrator's decision to defer application of § 165, since such jurisdiction is exclusive. Second, this decision must have constituted a refusal to perform a nondiscretionary duty imposed by § 165.

Final Action under § 307(b)(1)

Section 307(b)(1) of the Clean Air Act provides that a petition for review of, among other things, any "nationally applicable regulations promulgated, or final action taken, by the Administrator" may be filed only in the D.C. Circuit. Prior to the 1977 addition of the words "final action," the question had arisen whether there could be concurrent jurisdiction in the court of appeals and the district court when the Administrator had acted, though allegedly not far enough, in a way which also constituted a refusal to perform a mandatory duty. See, e. g., National Resources Defense Council v. EPA, 168 U.S.App.D.C. 111, 116-117, 512 F.2d 1351, 1356-57 (1975); Oljato Chapter of Navajo Tribe v. Train, 169 U.S.App.D.C. 195, 202, 515 F.2d 654, 661 n. 9 (1975). In Oljato, Judge J. Skelly Wright indicated that such a case might be heard either under § 307 or § 304.

Congress amended § 307 in two ways to...