State of Me. v. Thomas, 88-1983

Decision Date06 February 1989
Docket NumberNo. 88-1983,88-1983
Parties, 57 USLW 2723, 19 Envtl. L. Rep. 21,046 STATE OF MAINE, et al., Plaintiffs, Appellants, v. Lee M. THOMAS, etc., et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Gregory W. Sample, Asst. Atty. Gen., with whom James E. Tierney, Atty. Gen., State of Me., Augusta, Me., Jeffrey L. Amestoy, Atty. Gen., J. Wallace Malley, Jr., Asst. Atty. Gen., State of Vt., Montpelier, Vt., Robert Abrams, Atty. Gen., David R. Wooley, Asst. Atty. Gen., State of N.Y., Albany, N.Y., James M. Shannon, Atty. Gen., Janet G. McCabe, Asst. Atty. Gen., Boston, Mass., Com. of Mass., Cary Edwards, Atty. Gen., Paul Schneider, Deputy Atty. Gen., State of N.J., Trenton, N.J., Joseph I. Lieberman, Atty. Gen., New Haven, Conn., Brian Comerford, Asst. Atty. Gen., State of Conn., James E. O'Neil, Atty. Gen., Gary Powers, Asst. Atty. Gen., State of R.I., Providence, R.I., Howard I. Fox, Washington, D.C., Sierra Club Legal Defense Fund, James Tripp, Environmental Defense Fund, and Armond Cohen, Conservation Law Foundation of New England, were on brief for appellants.

John C. Harrison, Dept. of Justice, Washington, D.C., with whom Roger J. Marzulla, Asst. Atty. Gen., Richard S. Cohen, U.S. Atty., David C. Shilton, Dept. of Justice, Washington, D.C., and Gregory B. Foote, Office of General Counsel, E.P.A., were on brief for defendants, appellees.

Henry V. Nickel with whom Michael L. Teague, Norman W. Fichthorn, Hunton & Williams, Washington, D.C., John B. Weldon, Jr., Elizabeth Ann Rieke, and Jennings, Strouss & Salmon, Phoenix, Ariz., were on brief, for intervenors, appellees Alabama Power Co., et al.

Before SELYA, Circuit Judge, ALDRICH and COFFIN, Senior Circuit Judges.

SELYA, Circuit Judge.

The Clean Air Act, 42 U.S.C. Sec. 7401 et seq. (Act), embodies one of this nation's greatest aspirations, attempting to reconcile the polity's desire for pristine air with its equally fervent desire for the benefits of life in a modern industrial economy. Congress recognized that the reconciliation of these often-conflicting desires required resources, time, and institutional commitment. Having codified the goal ("to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population," 42 U.S.C. Sec. 7401(b)(1)), Congress entrusted the mandate of the Act to the Environmental Protection Agency (EPA or the Agency). 1

At the same time, Congress empowered the citizenry to superintend the Agency's progress toward meeting the Act's objectives by means of (i) citizen suits to compel observance of nondiscretionary duties, 42 U.S.C. Sec. 7604(a)(2), and (ii) petitions to review final Agency action, 42 U.S.C. Sec. 7607. The specifications which Congress set for these remedial vehicles necessitate that they be driven in different lanes; whereas citizen suits are prosecutable in federal district courts, 42 U.S.C. Sec. 7604(a), jurisdiction over review petitions lies exclusively with the courts of appeal. As to "nationally applicable" regulations, review petitions can only be brought in the United States Court of Appeals for the District of Columbia; as to regulations of local concern, such petitions are prosecutable in other "appropriate circuit [courts]"). 42 U.S.C. Sec. 7607(b). 2

Unsurprisingly, this jurisdictional dichotomy has created a confused class of circumforaneous litigants, wandering perplexedly from forum to forum in search of

                remediation.  In this case, seven northeastern states and several environmental groups (collectively, appellants) filed suit in the United States District Court for the District of Maine to compel EPA to promulgate regulations designed to deal with the atmospheric blight known as "regional haze."    Sixty-four electric utilities and a trio of trade associations intervened as defendants.  The district court ruled that it did not have jurisdiction to hear the complaint.  Maine v. Thomas, 690 F.Supp. 1106 (D.Me.1988).  We believe that the right result was reached and, although our reasoning is somewhat different, we affirm
                
I

"Regional haze" (sometimes called "uniform haze") is "widespread, regionally homogeneous haze from a multitude of sources which impairs visibility in every direction over a large area." 45 Fed.Reg. 80,084, 80,085 (1980). It may cover broad expanses, move over long distances, linger unduly, and reduce visibility in places which have few (if any) manmade emission sources. EPA's mandate to control the vexing problem of regional haze emanates directly from the Clean Air Act, which "declares as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from manmade air pollution." 42 U.S.C. Sec. 7491(a)(1). 3

Congress did not leave "progress toward meeting the national goal" entirely to the Agency's discretion. 42 U.S.C. Sec. 7491(a)(4). Quite the contrary: it charted an administrative course to guide EPA in its endeavors. The first way station relevant to this case is the August 1979 deadline requiring the Agency to "promulgate regulations to assure" that "reasonable progress" would indeed be made "toward meeting the national goal...." Id. Congress' cartographical projections from that point forward were considerably less precise. But, the "reasonable progress" stipulation also referred to "compliance with the requirements of [section 7491]," id., including the requirement which constitutes the second relevant way station. That pit stop was inexactly placed, requiring that state implementation plans include a "strategy for making reasonable progress toward meeting the national goal" within "ten to fifteen years." 42 U.S.C. Sec. 7491(b)(2)(B). Construing the ten to fifteen year requirement as dating from the 1979 deadline, and not the 1977 enactment of the Act itself, the next statutory deadline would have to be met between 1989 and 1994. EPA played the laggard. It was not until after it had been sued for recalcitrance and entered a settlement and consent decree 4 that it issued regulations. See 45 Fed.Reg. at 80,084-95. The 1980 regulations classified air pollution impairing visibility as either plume blight ("[s]moke, dust, colored gas plumes, or layered haze ... which obscure the sky or horizon and are relatable to the single source or a small group of sources") or regional haze, id. at 80,085, and treated the two categories separately.

The rules and orders which EPA promulgated to control plume blight proved uncontroversial, and are not in issue in this case. As to regional haze, the rulemaking amounted to the Agency's promise to deal substantively with the matter in future rules and orders. At the time, EPA argued that technology and knowledge were not sufficiently sophisticated to allow it to monitor, model, and fully understand regional haze. 45 Fed.Reg. at 80,085-86. Accordingly, the Agency announced that "[f]uture phases [of its regulations] will extend the visibility program by addressing more complex problems such as regional haze...." Id. at 80,086. Appellants--and other concerned parties--grudgingly accepted the olive branch, wispy though it was. They did Six years elapsed without further rulemaking. Calendar pages had yellowed by the thousands, but EPA still had not produced the promised regulations. Notwithstanding the counsel of the Greek philosophers that "[h]ealing is a matter of time," Hippocrates, Precepts, and that "[t]ime eases all things," Sophocles, Oedipus Rex, in this instance the inordinate delay, understandably, rubbed salt in an open wound. Appellants' patience worn wafer-thin, they sued to compel fulfillment of the lapsed promise. Asserting that the Agency's 1980 rulemaking was not a "final action taken" under 42 U.S.C. Sec. 7607(b), 5 appellants eschewed either an administrative filing or an attempted review petition. Instead, citing EPA's alleged disregard of what appellants characterized as a nondiscretionary duty to combat visibility impairment (embodied in 42 U.S.C. Sec. 7491), they premised jurisdiction on 42 U.S.C. Sec. 7604 and went directly to the district court. The reception was frosty; the court ruled that promulgation of the earlier (1980) regulations--called by the parties in interest the "Phase 1 regulations"--constituted final action, reviewable only in a court of appeals under 42 U.S.C. Sec. 7607(b). Maine v. Thomas, 690 F.Supp. at 1110-12. Following dismissal of their case on jurisdictional grounds, plaintiffs appealed.

not ask for review of the Agency action under section 7607, but countenanced EPA's open-ended assurances rather than rush to the courthouse.

II

The threshold question, of course, is whether EPA's 1980 promise comprised a "final action taken" for purposes of 42 U.S.C. Sec. 7607(b). No one questions that the aspects of the Phase 1 regulations which dealt with plume blight were final in the classical sense: they brought definition to, and controlled, one facet of visibility impairment. But, the remaining aspect of the regulations--the promise to act in futuro--may also be a final action taken; and if so, would be subject to review only in the Court of Appeals for the District of Columbia Circuit--and then, only within 60 days of the date of the regulatory enactment. See id.

At this juncture, we resist the temptation to become too "abstract and conceptual," Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 714 (D.C.Cir.1974), or to elevate "form over substance." Environmental Defense Fund, Inc. v. Costle, 448 F.Supp. 89, 93 (D.D.C.1978). We attempt instead to glean the essence of, and the rationale for, EPA's Phase 1 regulations. The result, we think, is clear: Phase 1 represented EPA's assessment of what might reasonably be done in 1980. Its assessment of its capacity to understand the problem of...

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