Kennecott Copper Corp., Nevada Mines Div., McGill, Nev. v. Costle, No. 77-1359

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore GOODWIN and SNEED; SNEED; HAUK
Citation572 F.2d 1349
Parties, 8 Envtl. L. Rep. 20,373 KENNECOTT COPPER CORPORATION, NEVADA MINES DIVISION, McGILL, NEVADA, Appellee, v. Douglas M. COSTLE, Administrator, Environmental Protection Agency, Appellant.
Decision Date05 April 1978
Docket NumberNo. 77-1359

Page 1349

572 F.2d 1349
11 ERC 1585, 8 Envtl. L. Rep. 20,373
KENNECOTT COPPER CORPORATION, NEVADA MINES DIVISION, McGILL,
NEVADA, Appellee,
v.
Douglas M. COSTLE, Administrator, Environmental Protection
Agency, Appellant.
No. 77-1359.
United States Court of Appeals,
Ninth Circuit.
April 5, 1978.

Page 1351

Jerome Ostrov (argued), Washington, D. C., for appellant.

Alfred V. J. Prather (argued), of Prather, Seeger, Doolittle, Farmer & Ewing, Washington, D. C., for appellee.

Appeal From the United States District Court for the District of Nevada.

Before GOODWIN and SNEED, Circuit Judges, and HAUK, * District Judge.

SNEED, Circuit Judge:

This appeal requires us to determine whether a district court under the circumstances of this case has jurisdiction to grant a preliminary injunction requiring the Environmental Protection Agency (EPA) to approve a variance from the requirements of a State Implementation Plan (SIP) properly promulgated under the terms of the Clean Air Amendments of 1970 (formerly 42 U.S.C. §§ 1857 et seq., currently 42 U.S.C. §§ 7401 et seq.; citations generally will be to the sections of the 1970 Amendments rather than to the codified version). In view of the procedural posture of this case and the law applicable to it, we hold that the district court either lacked power to grant, or should not have granted, such relief. We thus set aside the district court's preliminary injunction and remand this case to the district court, with instructions to enter an order dismissing the action.

I.

Procedural History.

This action, which we designate as Kennecott II, is merely the latest stage in a continuing battle between Kennecott Copper Company and the EPA as to the appropriate methods of pollution control to be employed at Kennecott's smelter in McGill, Nevada. A brief review of the procedural history of this controversy at this point will be helpful.

The SIP proposed by Nevada pursuant to § 110 of the Clean Air Amendments of 1970 (42 U.S.C. § 7410) was approved by the EPA except for, inter alia, the provisions pertaining to control of sulfur dioxide. Following the statutory mandate, the EPA promulgated SO 2 emission limitations for Nevada. As applied to Kennecott's McGill smelter, these regulations required an acid plant capable of reducing SO 2 emissions by 60%, an intermittent control system (a tall stack and production curtailments) to assure maintenance of national ambient air quality standards, and a research program aimed at creating improved constant control technology capable of reducing SO 2 emissions by 86%.

Kennecott sought judicial review of this regulation pursuant to § 307(b)(1) of the

Page 1352

Clean Air Amendments of 1970 (42 U.S.C. § 7607(b)(1)), which provides for direct review in the applicable Court of Appeals. This court, in what we designate as Kennecott I, upheld the EPA regulations, holding that "air quality standards must be met by continuous emission reduction controls so far as possible." Kennecott Copper Corp. v. Train, 526 F.2d 1149, 1159-60 (9th Cir. 1975), cert. denied, 425 U.S. 935, 96 S.Ct. 1665, 48 L.Ed.2d 176 (1976). Kennecott, in objecting to the research program requirement, took the position that the EPA was "not authorized to require continuous emission reduction techniques in preference to intermittent controls or other methods for dispersion, or dilution, of pollutants" when the combination of such techniques and other controls devised by the state in its SIP would "attain and maintain national air quality standards within the statutory time periods." Id. at 1152. Under such circumstances the EPA must approve the state's SIP, argued Kennecott.

We rejected this contention and sustained the EPA's research program requirement. In doing so, we held that national ambient air quality standards must be met to the extent feasible by constant emission controls. A state plan which meets these standards by not utilizing feasible constant emission controls must be rejected under the authority of section 110(a)(2)(B) of the Clean Air Amendments of 1970. In so holding we took special note of the fact that, because EPA has undertaken to assure Kennecott that under its interpretation of the statute economically infeasible constant emission controls would not be required, "EPA could not compel Kennecott to install additional emission reduction systems at McGill unless it were economically feasible for Kennecott to do so." Id. at 1160. Inasmuch as Kennecott in Kennecott I did not object to the SIP requirement of an acid plant capable of reducing emissions by 60%, we assumed that the requirement was considered by both Kennecott and EPA as economically feasible. Id. at 1151.

Subsequent to the decision in Kennecott I, the company decided that construction of any acid plant was economically infeasible. This conclusion was based on an asserted multimillion dollar rise in the cost of constructing the acid plant and a decline in the price of copper. Since the EPA was planning to enforce the regulations which had been approved in Kennecott I the company chose to shut down completely in July 1976, rather than to risk sanctions for noncompliance.

Kennecott's next step was to petition the State of Nevada to revise its SIP. The revision requested by Kennecott required only a 40% Reduction in SO 2 emissions and allowed achievement of this reduction through production curtailments rather than by use of an acid plant. In addition, dispersion through a tall stack was recognized as an acceptable method by which the State would achieve compliance with national ambient air quality standards. Kennecott also sought a variance for one year which would exempt it from meeting any requirements other than those which, by one means or another, would enable the State to achieve the national standards. On October 1, 1976 the State Environmental Commission approved both the revision of the SIP and the variance. On October 7 both were submitted to the EPA for action pursuant to § 110(a)(3). See Train v. Natural Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975).

Before the EPA had a chance to act on these submissions, however, Kennecott filed suit on October 12, 1976 against the Administrator of the EPA in the U.S. District Court for the District of Nevada. This action sought a declaratory judgment that the revision complied with the requirements of the Clean Air Amendments, a mandatory injunction or mandamus requiring the Administrator to approve the variance and the revision, and an injunction prohibiting the Administrator from enforcing the originally approved SIP or taking any other action to impede the operation of the McGill smelter. On November 24, 1976, the district court granted all the requested relief. 424 F.Supp. 1217 (D.Nev.1976). On April 25, 1977, this court granted the EPA's motion for a stay of the district court's order pending the determination of this appeal.

Page 1353

II.

The Issues.

The EPA attacks the jurisdiction of the district court to entertain this action. It first argues that § 307(b)(1) of the Clean Air Amendments of 1970 (42 U.S.C. § 7607(b)(1)) provides for exclusive jurisdiction in the appropriate Court of Appeals to review revisions of SIPs, thereby foreclosing this action at the district court level. The EPA further argues that § 304 of the Clean Air Amendments of 1970 (42 U.S.C. § 7604), the citizen's suit jurisdictional grant relied on by the district court, is inapplicable because the Administrator has discretionary responsibility in reviewing the state promulgated changes and because Kennecott failed to comply with the notice requirements of that section.

Kennecott responds by asserting that it is uncertain whether § 307 review is applicable to EPA denial of a revision of a SIP and that § 304 jurisdiction is appropriate because the Administrator has a mandatory duty to approve revisions of the SIP approved by the state which meet the requirements of § 110. Kennecott in support of § 304 jurisdiction argues that the Clean Air Amendments, as interpreted by the Supreme Court, give the states final authority in passing on the economic feasibility of such constant emission control systems as might be suggested by EPA. Kennecott makes the final argument that even if jurisdiction in the district court was technically improper, this court should consider the action as an original petition for review and hold that constant emission control systems are only required to the extent economically feasible and that a state's determination of economic infeasibility is binding on the EPA.

The district court, to establish its jurisdiction, relied primarily on section 304(a)(2) of the Clean Air Amendments of 1970 and secondarily on the Administrative Procedure Act, 5 U.S.C. § 701 et seq., federal question jurisdiction, 28 U.S.C. § 1331, and the Mandamus Act, 28 U.S.C. § 1361. Under the circumstances of this case we believe this reliance in its entirety was misplaced. Section 304(a)(2) does not afford jurisdiction because the duty of the EPA to review the variance Nevada granted is one which is discretionary. With respect to the other jurisdictional grounds relied on by the district court we believe judicial intervention at this point in the administrative process to be either invalid or inappropriate. Therefore, we must set aside the district court's preliminary injunction and remand this proceeding to the district court with directions to enter an order dismissing this cause of action.

III.

Citizen Suit Provision § 304.

Section 304(a)(2) of the Clean Air Amendments of 1970 (42 U.S.C. 7604(a)(2)) 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 the Act which is not discretionary with the Administrator." (Italics added). Its legislative history reveals that Congress recognized the potential for...

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63 practice notes
  • Doe v. United States Civil Serv. Com'n, No. 78 Civ. 131 (CHT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 16, 1980
    ...an APA claim pursuant to the general federal question jurisdiction provided by section 1331. See Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1356 (9th Cir. 1978); Stickelman v. United States, 563 F.2d 413, 415 n.2 (9th Cir. 1977); Bruzzone v. Hampton, 433 F.Supp. 92, 95 (S.D.N.Y.1977).......
  • State of New York v. Thomas, Civ. A. No. 84-0853.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 26, 1985
    ...lies in the district court under 42 U.S.C. § 7604. See Kennecott Copper Corporation, Nevada Mines Division, McGill, Nevada v. Costle, 572 F.2d 1349 (9th Cir.1978). B. Applicability of TRAC Intervenors argue further that, notwithstanding the provisions of 42 U.S.C. § 7604, jurisdiction of th......
  • CONSORTIUM OF COM. BASED ORGANIZATIONS v. Donovan, Civ. No. S-81-135 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 11, 1982
    ...28 U.S.C. § 1361 cannot be relied upon as a basis for jurisdiction where alternative remedies exist. Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1356 (9th Cir. 1978); Guerra v. Board of Trustees of California State Universities and Colleges, 567 F.2d 352 (9th Cir. 1977); see also Rush ......
  • Murray Energy Corp. v. McCarthy, Civil Action No. 5:14-CV-39
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • October 17, 2016
    ...Sierra Club [v. Thomas], 828 F.2d [783] at 791 [(D.C. Cir. 1987)] ('clear-cut nondiscretionary duty'); Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1355 (9th Cir. 1978) (citizen suit provision was intended to 'provide relief only in a narrowly-defined class of situations in which the Ad......
  • Request a trial to view additional results
62 cases
  • Doe v. United States Civil Serv. Com'n, No. 78 Civ. 131 (CHT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 16, 1980
    ...an APA claim pursuant to the general federal question jurisdiction provided by section 1331. See Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1356 (9th Cir. 1978); Stickelman v. United States, 563 F.2d 413, 415 n.2 (9th Cir. 1977); Bruzzone v. Hampton, 433 F.Supp. 92, 95 (S.D.N.Y.1977).......
  • State of New York v. Thomas, Civ. A. No. 84-0853.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 26, 1985
    ...lies in the district court under 42 U.S.C. § 7604. See Kennecott Copper Corporation, Nevada Mines Division, McGill, Nevada v. Costle, 572 F.2d 1349 (9th Cir.1978). B. Applicability of TRAC Intervenors argue further that, notwithstanding the provisions of 42 U.S.C. § 7604, jurisdiction of th......
  • CONSORTIUM OF COM. BASED ORGANIZATIONS v. Donovan, Civ. No. S-81-135 LKK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 11, 1982
    ...28 U.S.C. § 1361 cannot be relied upon as a basis for jurisdiction where alternative remedies exist. Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1356 (9th Cir. 1978); Guerra v. Board of Trustees of California State Universities and Colleges, 567 F.2d 352 (9th Cir. 1977); see also Rush ......
  • Murray Energy Corp. v. McCarthy, Civil Action No. 5:14-CV-39
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • October 17, 2016
    ...Sierra Club [v. Thomas], 828 F.2d [783] at 791 [(D.C. Cir. 1987)] ('clear-cut nondiscretionary duty'); Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1355 (9th Cir. 1978) (citizen suit provision was intended to 'provide relief only in a narrowly-defined class of situations in which the Ad......
  • Request a trial to view additional results
1 books & journal articles
  • Citizen Suits Against the Federal Government and Tribes
    • United States
    • The Clean Water Act and the Constitution. Legal Structure and the Public's Right to a Clean and Healthy Environment Part II
    • April 20, 2009
    ...it must be construed narrowly.”). 64. Cascade Conservation League , 921 F. Supp. at 696 (quoting Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1351, 8 ELR 20373 (9th Cir. 1978)). 65. Id. at 699. 66. Id . at 698, 699. 67. 33 U.S.C. §1344(a), (d) (2000). 68. Id . §1344(a). 69. Id . §1344(b......

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