Sierra Club v. Thomas, 86-1134

Citation828 F.2d 783,264 U.S.App.D.C. 203
Decision Date08 September 1987
Docket NumberNo. 86-1134,86-1134
Parties, 264 U.S.App.D.C. 203, 56 USLW 2191, 17 Envtl. L. Rep. 21,198 SIERRA CLUB, Petitioner, v. Lee M. THOMAS, Administrator, Environmental Protection Agency, et al., Respondent, American Mining Congress, et al., National Coal Association, Intervenors.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Petition for Review of an Order of the U.S. Environmental Protection agency.

Joseph J. Brecher, for petitioner. Howard Fox, also entered an appearance for petitioner.

Stephen L. Samuels, Atty., Dept. of Justice with whom Gregory Foote, Atty., U.S. E.P.A., was on brief, for respondents.

Michael B. Barr and Kerry A. Walsh Skelly, were on brief, for intervenor, Nat. Coal Assn. Charles D. Ossola, also entered an appearance for intervenor.

Roberta L. Halladay and Robert T. Connery, were on brief, for intervenor, American Min. Congress, et al. J. Peter Luedtke and Larry A. Boggs, also entered appearances for intervenors.

Before RUTH B. GINSBURG, STARR and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

On October 24, 1984, the Environmental Protection Agency (EPA) issued a proposal for rulemaking 1 concerning whether to place strip mines on its list of pollutant sources subject to fugitive emissions regulation under the "prevention of significant deterioration" (PSD) program of the Clean Air Act (Act). 2 Contending that EPA has unreasonably delayed in concluding this rulemaking, the petitioner, Sierra Club, requests that we enjoin EPA to reach a final decision within ninety days. We conclude that EPA has not engaged in unreasonable delay and therefore deny the request for relief.

I. BACKGROUND

This case requires us to revisit EPA's regulation of fugitive emissions, a subject previously addressed in Alabama Power Co. v. Costle, 636 F.2d 323, 368-70 (D.C.Cir.1979) and Sierra Club v. Gorsuch, 715 F.2d 653 (D.C.Cir.1983). Because those opinions provide an extensive summary of the statutory and regulatory history of fugitive emission regulation, we retrace only its broad outlines here.

The original focus of the Act was on bringing all regions of the country into compliance with the minimum air quality standards it established. In order to ensure that this air quality floor did not in effect become a ceiling, Congress in 1977 amended the Act by establishing the PSD program (Part C of the Act, see supra note 2), which applies to those regions whose air quality exceeds the minimum standards. The PSD program governs the construction of "major emitting facilities," which are defined in section 169(1) of the Act as stationary sources of air pollutants that emit or have the potential to emit more than a specified tonnage per year, depending upon the type of source involved. 3

"[T]he Act distinguishes between two types of emissions: 'point source' emissions, such as those from a chimney; and 'fugitive' emissions, which are not emitted from a single point." 4 In Alabama Power, we reviewed PCD regulations to determine whether EPA properly charged emissions from "fugitive sources" against the maximum established in section 169(1). We held that, on account of the rulemaking requirement imposed by section 302(j) of the Act 5 (which defines "major emitting facility" for the entire Act), "the agency could only consider fugitive emissions in such [calculations] when done pursuant to a rule." 6 We therefore vacated the PSD regulations, which were based upon the erroneous presumption that "the statute of its own momentum subjects major sources of fugitive emissions to PSD" review. 7

Upon remand, in 1979 EPA issued a rulemaking proposal to include twenty-seven categories of fugitive emission sources in its "major emitting facility" calculations. 8 The listed sources did not include strip mines, but the proposal explained that EPA "over the next several months will consider the need for additional source types to be added to the list ... including strip mines." 9 In commenting on the proposal, Sierra Club suggested that strip mines be added to the list. 10 The final PSD regulations issued in August 1980, however, still omitted strip mines. 11 Sierra Club moved for reconsideration on that ground. In March 1981, EPA denied reconsideration, stating that it had not conclusively excluded strip mines as a source of fugitive emissions, and adding that it was "actively gathering information ... [to] put it in a better position than it is now to reach a final decision on strip mines." 12

Several industry groups and the Sierra Club each petitioned this court to review EPA's 1980 regulations. 13 In February 1982, however, the industry groups and EPA entered into a settlement, under which EPA agreed to propose to delete the twenty-seven fugitive emission sources from the "major emitting facility" calculations. On August 25, 1983, EPA issued such a proposed rulemaking, 14 and also proposed various interpretations of section 302(j) not relevant to this case.

The next day, this court decided Sierra Club v. Gorsuch, a petition to review EPA's decision not to include strip mines in the 1980 regulations. 15 Although we found this omission "troubling", we held that "at this point [the EPA] has acted [neither] arbitrarily nor capriciously." 16 We therefore remanded the record to EPA, while retaining jurisdiction of the appeal, for the agency "to reconsider whether strip mines should be added to the list of regulated sources." 17 In closing, we expressed our desire that EPA "act on this remand in an appropriately expeditious manner." 18

On December 16, 1983, Sierra Club petitioned the court for an order compelling EPA to complete its reconsideration of the strip mine question by January 6, 1984. On January 31, 1984, EPA informed the court that it would be unable to issue a final rule on that matter for another six to twelve months, due to the agency's on-going consideration of its August 25, 1983 rulemaking proposal. On February 24, 1984, Sierra Club petitioned the court for an order requiring EPA within thirty days to propose including strip mines on the list of fugitive emission sources. On April 20, 1984, we denied Sierra Club's two petitions but did order EPA to decide within six months whether to issue a proposal to list strip mines.

On October 26, 1984, EPA concluded its August 25, 1983 proposed rulemaking by re-promulgating as a final rule its previous list of twenty-seven fugitive emission sources, which did not include strip mines. 19 In the final rule, EPA also reaffirmed its 1980 interpretation of section 302(j):

Congress intended that EPA make only two determinations before it required fugitive emissions to be included in threshold applicability determinations for sources in a particular category: (1) That the sources have the potential to degrade air quality significantly and (2) that no unreasonable socioeconomic impacts relative to the benefits would result from subjecting the sources to the relevant PSD or nonattainment programs. 20

On the same day, EPA issued a separate rulemaking proposal to add strip mines to the fugitive emission source list. 21 In soliciting comment on the anticipated socioeconomic impact of such listing, EPA expected "weighty objections" from the mining industry. 22 EPA also announced that it was preparing a Regulatory Impact Analysis (RIA) on the socioeconomic effects, and stated that it would reopen the comment period after release of the RIA. 23 Accordingly, on November 21, 1984 we sua sponte terminated the docket in Sierra Club v. Gorsuch.

EPA conducted public hearings on the strip mine proposal in December 1984. In February, 1986, EPA released its RIA on the socioeconomic impact of listing strip mines and, as it had promised in its original proposal, reopened the comment period (for sixty days). EPA also held a public hearing in April, 1986, and at the request of both industry and environmental groups, extended the reopened comment period until June 30, 1986. 24 The rulemaking record indicates that EPA received approximately 200 written submissions during the original and reopened comments periods, and that its consideration of the October 24, 1984 proposal to list strip mines continues. 25

On February 24, 1986, Sierra Club filed complaints in both the district court and this court seeking declaratory and injunctive relief to compel EPA to conclude this rulemaking begun on October 24, 1984. In its complaints, Sierra Club contends that EPA has unreasonably delayed in promulgating regulations governing fugitive emissions from strip mines. On April 18, 1986, the district court dismissed the action before it, without prejudice, pending the resolution of Sierra Club's complaint before this court. 26 In so doing, the district court opined that, under Telecommunications Research & Action Center v. FCC (TRAC) 27 this court "may well have exclusive jurisdiction over the merits of this case." 28

II. DISTRICT COURT JURISDICTION

In TRAC, we acknowledged that our "somewhat inconsistent" decisions had left the law in a "state of disarray" concerning "whether a petition to compel allegedly unreasonably delayed agency action properly lies before this Court or before a United States District Court, or whether those courts have concurrent jurisdiction, when any final agency decision in the matter would be directly reviewable in this Court." 29 In resolving this question, we held that "where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is subject to the exclusive review of the Court of Appeals." 30

Under section 307(b)(1) of the Act, 31 it is clear that this court will have jurisdiction to review the strip mine rulemaking when it becomes final. If that were the only relevant provision, TRAC would clearly apply in this case, but in fact the...

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