Monongahela Power Co. v. Reilly

• Decision Date: 08 January 1993
• Docket Number: No. 92-1786,92-1786
• Citation: 980 F.2d 272
• Parties: , 137 P.U.R.4th 444, 23 Envtl. L. Rep. 20,357 MONONGAHELA POWER COMPANY; West Penn Power Company; Potomac Edison Power Company, Plaintiffs-Appellees, v. William REILLY, Administrator of the United States Environmental Protection Agency, Defendant-Appellant. Indianapolis Power & Light Company; Northern Indiana Public Service Company; Southern Indiana Gas & Electric Company; PSI Energy, Incorporated, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 272

980 F.2d 272

35 ERC 2074, 137 P.U.R.4th 444, 23

Envtl. L. Rep. 20,357

MONONGAHELA POWER COMPANY; West Penn Power Company Potomac Edison Power Company, Plaintiffs-Appellees, v. William REILLY, Administrator of the United States Environmental Protection Agency, Defendant-Appellant Indianapolis Power & Light Company; Northern Indiana Public Service Company; Southern Indiana Gas & Electric Company; PSI Energy, Incorporated, Amici Curiae.

No. 92-1786.

United States Court of Appeals Fourth Circuit.

Argued Sept. 30, 1992.

Decided Nov. 24, 1992.

As Amended Jan. 6, 1993.

As Corrected Jan. 8, 1993.

David Carlisle Shilton, U.S. Dept. of Justice, Washington, D.C., argued (Vicki A. O'Meara, Acting Asst. Atty. Gen., John A. Bryson, Alan D. Greenberg, U.S. Dept. of Justice, Patricia Embrey, Judith Tracy, Office of Gen. Counsel, U.S. E.P.A., on brief), for defendant-appellant.

Stephen E. Roady, Andrews & Kurth, L.L.P., Washington, D.C., argued (Thomas E. Starnes, Christine A. Jones, Andrews & Kurth, L.L.P., on brief), for amici curiae Indianapolis Power & Light, et al.

William James Murphy, Law Offices of William J. Murphy, Baltimore, Md., argued (M. Blane Michael, Jackson & Kelly, Charleston, W.Va., on brief), for plaintiffs-appellees.

Roger J. Marzulla, Akin, Gump, Hauer & Feld, L.L.P., Washington, D.C., argued (William J. Brealis, Fritz H. Schneider, Michael S. Ray, Washington, D.C., Cheryl M. Foley, Ronald J. Brothers, Barbara F. Gambill, PSI Energy, Inc., Plainfield, Ind., on brief), for amicus curiae, PSI Energy.

Before PHILLIPS and LUTTIG, Circuit Judges, and TRAXLER, United States District Judge for the District of South Carolina, sitting by designation.

OPINION

LUTTIG, Circuit Judge:

The Monongahela Power Company and two other utilities (collectively "Monongahela") brought suit against the Administrator of the Environmental Protection Agency to compel him to process their application for an extension of a compliance deadline and collateral request for emissions allowances, alleging that the Administrator had failed to perform a nondiscretionary duty under the Clean Air Act to process the application and request. The district court, 795 F.Supp. 789, granted Monongahela's motion for a preliminary injunction enjoining the Administrator to take such action, and he appealed. Because we conclude that the district court lacked jurisdiction to entertain the complaint, we vacate its order and remand the case with instructions that it be dismissed.

I.

As part of the 1990 amendments to the Clean Air Act, 42 U.S.C. §§ 7401-7671, Congress authorized the Administrator to establish a program to control the effects of acid rain through limitations on emissions allowances. Under the program established by the Administrator, an affected utility that has been allocated allowances based on historical emissions has flexibility to comply with the new emissions requirements by adding to its industrial equipment sulfur dioxide control technology ("scrubbers"), switching to lower sulfur content coal, or purchasing additional of the limited, fully marketable allowances from other utilities to cover its own emissions. This latter allowance trading system represents the centerpiece of the program.

To encourage the use of scrubbers, certain utilities that install them are allowed to apply for a two-year extension of a compliance deadline. Id. § 7651c(d)(1). Utilities making such an application become eligible to receive, from a limited reserve, the additional allowances needed to cover their emissions for the extension period, as well as additional ("bonus") allowances for use after the extension period. Id. § 7651c(d). Anticipating that the demand for such allowances would outstrip their supply, Congress directed the Administrator to "review and take final action on each extension proposal in order of receipt." Id. § 7651c(d)(3).

On December 3, 1991, the EPA published proposed regulations that established the key features of the acid rain program, including a suggested means to determine the "order of receipt" of extension applications. See 56 Fed.Reg. 63,002 (1991). Despite the statutorily imposed May 15, 1992, deadline for promulgating final regulations, see 42 U.S.C. § 7651g(c)(3), the EPA only recently, on October 26, 1992, issued final regulations. See 58 Fed.Reg. 3590 (1993) (to be codified at 40 C.F.R.).

Owners and operators of Phase I utilities, the highest-emitting plants in the nation, must submit a permit application and compliance plan "in accordance with" the EPA's regulations by February 15, 1993. 42 U.S.C. § 7651g(c)(1)(A). Monongahela attempted to file an extension application much earlier, on March 19, 1991, and the EPA refused to act upon it. Instead, the agency stated that it would consider no applications until it had promulgated final regulations and that applications filed before that time would not be assigned a rank-order for purposes of determining their "order of receipt." J.A. at 218-19.

Monongahela brought this suit, alleging a violation of 42 U.S.C. § 7651c(d)(3), the provision requiring the Administrator to act upon applications "in order of receipt." Monongahela asserted that the Administrator had failed to perform a nondiscretionary duty within the meaning of the citizen suit provisions of the Act, 42 U.S.C. § 7604(a)(2), and sought a preliminary injunction requiring the Administrator to review and take final action on its extension application or to establish a ranking procedure that guaranteed consideration in order of receipt. In an amended complaint, Monongahela alleged that the Administrator's failure to process its application represented an "action unreasonably delayed," which is cognizable under 42 U.S.C. § 7604(a).

The Administrator argued below that the district court should dismiss the complaint for lack of jurisdiction and that, in any event, a preliminary injunction was inappropriate. The district court rejected both arguments, holding that the Administrator had failed to perform a nondiscretionary duty. The court entered a preliminary injunction requiring the EPA to rank Monongahela's application in order of receipt and to determine its entitlement to extension and bonus allowances. From this order, an appeal was taken.

The Administrator advances two arguments before this court. First, he contends that the district court lacked jurisdiction over Monongahela's complaint. Alternatively, he argues that the district court's preliminary injunction should be vacated as an abuse of its discretion. Because we agree with his former claim, we do not reach the latter.

II.

We must first determine whether jurisdiction was proper only in the Court of Appeals for the District of Columbia Circuit pursuant to 42 U.S.C. § 7607(b)(1), which confers on that court exclusive jurisdiction over "petition[s] for review of ... nationally applicable regulations promulgated, or final action taken, by the Administrator." See Environmental Defense Fund v. Thomas, 870 F.2d 892, 896 (2d Cir.) ("Because [section 7607] embodies a grant of exclusive jurisdiction, it appears that if the District of Columbia has jurisdiction over the present action, the district court does not."), cert. denied, 493 U.S. 991, 110 S.Ct. 537, 107 L.Ed.2d 535 (1989). Such actions must be brought "within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register." 42 U.S.C. § 7607(b)(1). The Administrator characterizes Monongahela's claim as "in substance, an attack on a proposed nationally applicable regulation" because it allegedly challenges the scheme developed in the proposed regulations, Appellant's Br. at 28, and argues that it is therefore both premature and filed in the wrong court. ¹ Contrary to the Administrator's assertions, Monongahela's complaint cannot be characterized as a petition for review of nationally applicable regulations, for at the time it was filed, the EPA had yet to promulgate any such regulations. We conclude, therefore, that the Court of Appeals for the District of Columbia Circuit did not have jurisdiction over Monongahela's claim. This does not end our inquiry, however, for we must yet determine whether the district court had jurisdiction over this claim under 42 U.S.C. § 7604(a)(2). See Environmental Defense Fund, 870 F.2d at 896 ("If the District of Columbia Circuit does not have jurisdiction ..., then either the district court has jurisdiction or [plaintiffs] have no forum in which to assert their claims."); cf. Sierra Club v. Thomas, 828 F.2d 783, 792 (D.C.Cir.1987) ("It does not follow automatically that, if the district court lacks jurisdiction, then it must lie in [the District of Columbia Circuit], for both courts have just so much jurisdiction as Congress has provided by statute."). ²

III.

Jurisdiction of the district court over this suit turns upon the question of whether the Administrator's challenged course of action violates a nondiscretionary duty imposed upon him by the terms of the Act. The Act sets forth its jurisdictional requirements:

Except as provided in subsection (b) of this section [notice requirements], any person may commence a civil action on his own behalf--

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

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The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, ... to order the Administrator to perform such act or duty, as the case may be....

42 U.S.C. § 7604(a). We need decide today only whether the statute imposed upon the Administrator a nondiscretionary duty to process extension applications before he promulgated final regulations implementing the statutory program. See Sierra Club v. Train, 557 F.2d 485, 488 (5th Cir.1977) ("The substantive issue in this case is one of statutory...