Solar Turbines v. Seif
| Decision Date | 12 February 1988 |
| Docket Number | Civ. A. No. 88-0221. |
| Citation | 678 F. Supp. 93 |
| Parties | SOLAR TURBINES, INC., Plaintiff, v. James M. SEIF, Regional Administrator, Region III, U.S. Environmental Protection Agency, and United States Environmental Protection Agency, Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Harold A. Kurland, Nixon, Hargrave, Devans & Doyle, Rochester, N.Y., Terry R. Bossert, McNees, Wallace & Nurick, Harrisburg, Pa., for plaintiff.
Tim Haney, Asst. U.S. Atty., Harrisburg, Pa., Bradley S. Bridgewater, Peter Wykoff, U.S. Dept. of Justice, Land & Natural Resources, Washington, D.C., for defendants.
Plaintiff, Solar Turbines, Inc. ("Solar"), filed this action February 10, 1988. Solar is the owner and operator of a gas turbine cogeneration facility currently under construction at a Caterpillar, Inc. plant in York County, Pennsylvania. The defendants are the Environmental Protection Agency ("EPA" or "the Agency") and James M. Seif, the Regional Administrator for Region III of the EPA. Solar seeks relief in the form of a declaratory judgment and a preliminary and permanent injunction. Pursuant to 28 U.S.C. § 2201, plaintiff seeks a declaration that the EPA acted outside its jurisdiction in issuing an Administrative Order directing Solar to halt construction of its power plant. In addition, Solar seeks a temporary and a permanent injunction enjoining the EPA from enforcing its administrative order and from revoking, revising or challenging plaintiff's state-issued construction permit. Solar filed a notice and motion for temporary restraining order ("TRO"), preliminary injunction and confidentiality order along with its complaint on February 10, 1988.
On February 10, 1988 the court conducted a hearing in chambers on the motion for a TRO. All parties were represented by counsel. The court heard arguments, but no witnesses testified, and no exhibits were presented.
To obtain a permit to construct a facility which will emit air pollutants, a builder must satisfy both state and federal regulations. The federal regulations are found in the Clean Air Act, 42 U.S.C. § 7401 et seq., and the state regulations for the Commonwealth of Pennsylvania are found in the Air Pollution Control Act, 35 Pa.Code, Chapter 23, which requires the builder to obtain a "plan approval," 25 Pa.Code § 127.11, from the Commonwealth of Pennsylvania Department of Environmental Resources ("PADER").
To satisfy the federal regulations, facilities such as Solar's, which will emit a regulated pollutant in excess of specified amounts, must obtain a specific permit — Prevention of Significant Deterioration ("PSD") permit, 42 U.S.C. § 7475. In the Clean Air Act, Congress provided a procedure whereby the appropriate state environmental agencies would be given EPA approval to issue the PSD permits. 42 U.S.C. §§ 7410(a)(2)(D), 7471, implemented by 40 C.F.R. § 51 et seq. PADER received approval for its permit process in 1984.
Before commencing construction at the Caterpillar site, Solar applied to PADER for a construction permit. PADER issued a final permit to Solar on September 9, 1987. On February 1, 1988 Solar received an Administrative Order ("Order") dated January 25, 1988 issued by defendant Seif.
The Administrative Order, relying exclusively on Clean Air Act § 167, 42 U.S.C. § 7477, purports to order plaintiff immediately to cease any construction activity at its gas turbine cogeneration facility, among other things, and to certify to defendant EPA within ten days of receipt of the Administrative Order that plaintiff has complied with various prohibitions contained in that Administrative Order.
Plaintiff's Complaint at ¶ 15.
Solar was to comply with the Order on February 11, 1988.
The first issue which must be addressed is this court's jurisdiction. Plaintiff argues this court has jurisdiction pursuant to 28 U.S.C. § 1331, federal question. The federal question presented is whether the Clean Air Act and the United States Constitution give defendants power to issue and enforce the order sent to plaintiff. Solar also relies on 28 U.S.C. § 1337, affecting commerce. Plaintiff reasons the court has jurisdiction because Congress' authority to enact the Clean Air Act derives partly from its power under the commerce clause, U.S. Const. art. I, § 8, cl. 3.
The Clean Air Act has two sections delineating federal court jurisdiction in suits filed against the EPA. 42 U.S.C. § 7604, citizens suits, gives district courts jurisdiction over actions "to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such an act or duty, as the case may be." The other section which delineates jurisdiction is 42 U.S.C. § 7607(b)(1). This section gives the circuit courts of appeal exclusive jurisdiction to review action taken by the EPA or its administrators which action involved approval or promulgation of implementation plans under various sections of the Clean Air Act or "any other final action of the Administrator under this Act ... which is locally or regionally applicable. ..." Id.
Section 7607(b)(1) has no application here because the EPA's issuance of the Order does not constitute "final action" of the Agency. The EPA, in arguing a point on ripeness and harm, stated unequivocally that the Order issued to Solar is not final action, but rather the first action taken towards a final order which may have an effect on plaintiff. Section 7604 likewise has no application here because the issuance of the Order is clearly not the type of Agency activity addressed by the provision, as discussed above.
On the facts in the case at bar there is no affirmative mandate in the Act conferring jurisdiction on the court, nor is there a mandate stripping jurisdiction from the court. However, in the section of the Act granting district courts jurisdiction over specified action, § 7604 (citizens suits), the statute explicitly states at § 7604(e) (), "nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek ... relief against the Administrator or a State agency...." The court finds this section applicable here because Solar seeks review of the Agency's activity under principles of constitutional law (taking of property without due process, fifth amendment, 28 U.S.C. § 1331), under the Administrative Procedure Act (), and under the Clean Air Act (Agency has acted in excess of its authority under the Act, 42 U.S.C. § 7401 et seq.).
Defendants made an argument on the prudential requirement of ripeness. Defendants contend if Agency action is not "final" there is no jurisdiction. They stated further steps had to be taken by the EPA before there is "final action" which will have an effect on the plaintiff. Defendants' countered plaintiff's fear-of-sanction argument with assertions from counsel that the Order was not self-enforcing. Before the EPA could actually shutdown Solar's construction it would have to go to court to seek a court order enforcing its Order or seek injunctive relief. The injunctive relief, counsel said, could be sought whether the EPA had issued an Order or not. In essence, counsel asserted the controversy was not ripe in that plaintiff could not show immediate irreparable harm because the Order itself had "no teeth."
The issue of ripeness and pre-enforcement action was analyzed by the Third Circuit Court of Appeals in A.O. Smith v. Fed. Trade Comm'n., 530 F.2d 515 (3d Cir.1976). There the Federal Trade Commission ("FTC" or "Commission") ordered 345 of the nation's largest companies to complete and file Line of Business Reports Forms within 150 days. In the order to the companies, the FTC stated, "`You are advised that penalties may be imposed under applicable provisions of Federal law for failure to file this report or for the filing of a false report.'" Id. at 519. Like the plaintiff in the case at bar, the plaintiffs in A.O. Smith sought declaratory and injunctive relief alleging, inter alia, the FTC issued the orders without statutory authority and in violation of plaintiffs' constitutional rights. Again, as with Solar, the plaintiffs sought an order enjoining the FTC from enforcing its orders or acting upon them in any manner contradictory to plaintiffs' interests.
The FTC stated as does the EPA here, that the orders were not self-enforcing. Under the statutory scheme the Commission had to go to court to seek enforcement (by means of mandamus), and penalties could not be imposed until notices of default were issued. Thus, argued the government, "until the FTC seeks to enforce its orders, the district courts are without jurisdiction to entertain actions for declaratory and injunctive relief." Id. at 520.
The court found "the paramount principles today in deciding whether federal courts have jurisdiction to review administrative actions derive from the Supreme Court's 1967 Abbott Laboratories trilogy. ..."1 The court embarked on a very close analysis of the Abbott Laboratories cases. The court concluded the two major factors for consideration were "(1) the nature of the issues, which must be `purely legal,' ... and (2) the finality of the agency actions." Id. at 521. The ultimate issues raised by A.O. Smith's plaintiffs were purely legal: did the agency exceed its authority? That legal issue is also the ultimate issue before this court, and the conclusions of the A.O. Smith court apply here as well. "Further factual development would not sharpen the issues; nor does judicial consideration at this stage in any way usurp the agency's factfinding prerogatives." Id. at 521, 522.
The A.O. Smith court found the FTC orders final (initial, renewed, and amended motions made to the FTC to quash the orders had all been denied...
To continue reading
Request your trial
-
Solar Turbines Inc. v. Seif
...district court issued a temporary restraining order and enjoined the EPA from enforcing its administrative order. Solar Turbines, Inc. v. Seif, 678 F.Supp. 93, 98 (M.D.Pa.1988). The court ruled that the issuance of the administrative order was not a final agency action, that it had federal ......
-
Solar Turbines, Inc. v. Seif, Civ. A. No. 88-0221.
...state-issued construction permit. On February 12, 1988 the court granted plaintiff's request for a temporary restraining order (TRO) 678 F.Supp. 93. The order provided the TRO would remain in effect until the case could be heard on the merits. Originally a hearing on the merits was schedule......
-
DeVito v. Hem, Inc., Civ. A. No. 88-1712.
...not harm defendant more than it will help plaintiff; and (4) the public interest is served by granting the relief." Solar Turbines v. Seif, 678 F.Supp. 93, 97 (M.D.Pa.1988) (citing Ecri v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir.1987). As was discussed above, this court does not have j......
-
Preconstruction Permits: New Source Performance Standards and New Source Review
...191. See, e.g. , 40 C.F.R. §52.21(r)(2). 192. No. 06-4045, 39 ELR 20271 (11th Cir. Oct. 27, 2008). 193. Solar Turbines, Inc. v. Seif, 678 F. Supp. 93 (M.D. Pa. 1988), af’d , 879 F.2d 1073, 19 ELR 21091 (3d Cir. 1989). 194. 67 Fed. Reg. 41345 (June 18, 2002) (codiied at 40 C.F.R. pt. 19, tbl......
-
State and federal command-and-control regulation of emissions from fossil-fuel electric power generating plants.
...(Aug. 10, 2001). (171) Clean Air Act, 42 U.S.C. [section] 7477 (2000). (172) Id. [section] 7503(a). (173) Solar Turbines, Inc. v. Seif, 678 F. Supp. 93, 97 (M.D. Pa. (174) Memorandum from Eric V. Schaeffer, Director, Office of Regulatory Enforcement, Guidance on the Appropriate Injunctive R......