Western Oil and Gas Ass'n v. U.S. E.P.A.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before SNEED and SCHROEDER; SNEED
• Citation: Western Oil and Gas Ass'n v. U.S. E.P.A., 633 F.2d 803 (9th Cir. 1980)
• Decision Date: 01 December 1980
• Docket Number: No. 78-1941,78-1941
• Parties: , 10 Envtl. L. Rep. 20,985 WESTERN OIL AND GAS ASSOCIATION, a nonprofit corporation; California Independent Producers Association, a nonprofit corporation; Chevron U.S.A. Inc., a corporation; Getty Oil Company, a corporation; Mobil Oil Corporation, a corporation; Shell Oil Corporation, a corporation; Sun Oil Company (Delaware), a corporation; Tenneco Inc., a corporation; and Union Oil Company of California, a corporation, Petitioners, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States; and Douglas M. Costle, in his capacity as Administrator of the United States Environmental Protection Agency, Respondents.

Page 803

633 F.2d 803

15 ERC 1487, 10 Envtl. L. Rep. 20,985

WESTERN OIL AND GAS ASSOCIATION, a nonprofit corporation California Independent Producers Association, a nonprofit corporation; Chevron U.S.A. Inc., a corporation; Getty Oil Company, a corporation; Mobil Oil Corporation, a corporation; Shell Oil Corporation, a corporation; Sun Oil Company (Delaware), a corporation; Tenneco Inc., a corporation; and Union Oil Company of California, a corporation, Petitioners, v. The UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States; and Douglas M. Costle, in his capacity as Administrator of the United States Environmental Protection Agency, Respondents.

No. 78-1941.

United States Court of Appeals Ninth Circuit.

Argued May 13, 1980.

Submitted June 10, 1980.

Decided Dec. 1, 1980.

Sharon F. Rubalcava, Gregory R. McClintock, McCutchen, Black, Verleger & Shea, Los Angeles, Cal., argued for petitioners; Christina Kaneen, Los Angeles, Cal., on brief.

Fred R. Disheroon, Atty., Dept. of Justice, Washington, D.C., for respondents.

On Petition to Review a Decision of the United States Environmental Protection Agency.

Before SNEED and SCHROEDER, Circuit Judges, and BURNS ^*, District Judge.

SNEED, Circuit Judge:

Petitioners, several oil and gas companies and their trade association, seek direct review of a regulation promulgated by respondent, the EPA, designating certain geographical areas in California as failing to meet federal air quality standards. We hold that our jurisdiction rests on the provision of the Clean Air Act Amendments of 1977, 42 U.S.C. § 7607 (Supp.II 1978), which contemplates judicial review of regionally applicable final agency action, and that the EPA failed to comply with section 553(b) of the Administrative Procedure Act, 5 U.S.C § 553(b) (1976) (APA). As a consequence, we remand to the EPA to permit it to provide the petitioners another opportunity to comment on the designation and to enable it to receive and consider these comments.

I FACTUAL BACKGROUND

This case arises from an intermediate step in the enforcement of the Clean Air Act, enacted in 1970, Pub.L.No. 91-604, 84 Stat. 1676 (1970), and substantially amended in 1977, Pub.L.No. 95-95, 91 Stat. 685 (1977). The Act commanded the EPA to formulate air quality standards for a range of pollutants, specifying how much of each pollutant may safely be allowed to stand in the air. 42 U.S.C. § 7409(a) (Supp.II 1978). These standards have long been in force. 40 C.F.R. §§ 50.1-.11 (1980). Originally, the Act set forth what turned out to be an optimistic schedule for the reduction of pollution to safe levels. When the schedule was not met, Congress set new deadlines with the object of realizing the original goals as soon as possible. Pub.L.No. 95-95, 91 Stat. 685 (1977). These new deadlines provided that by December 5, 1977, each state was to submit lists, called attainment status designations, of the regions within that state that met and did not meet the air quality standards on August 7, 1977. 42 U.S.C. § 7407(d) (Supp.II 1978). ¹ Submission of attainment status designations was the first step in a statutory scheme to develop programs, called state implementation plans (SIPs), by which each state proposes to bring itself into compliance with the air quality standards in accordance with the statutory schedule. Id. § 7502(a)(1), (2). By February 3, 1978, the EPA was to promulgate the states' proposed attainment status designations, modified as the Administrator deemed necessary. Id. § 7407(d)(2). The states were to take these designations into account in preparing SIPs to be submitted to the agency by January 1, 1979. When approved by the EPA, the SIPs become enforceable federal regulations and require new and existing industry in each state to install whatever equipment is needed to reduce pollution to the scheduled levels. Id. § 7502(b)(2). Private industrial concerns whose plants are sources of pollution must apply for licenses before modifying or constructing new facilities. If a plant is located in a nonattainment area, the applicant must show that his project actually will reduce pollution in that area. Id. § 7503(1)(A).

The dispute with which this case is concerned centers on the manner in which the EPA arrived at the attainment status designations for California. Although some states, including California, had submitted proposed designations by the December 5 deadline, the EPA did not notify the public in advance of its intention to adopt these proposals, or solicit public comment as the APA, 5 U.S.C. §§ 551-706 (1976), requires for much "rulemaking." Even so, the EPA missed its deadline and published the designations on March 3, 1978. Then it declared them "immediately effective" and solicited comments with a promise to publish revised designations as appropriate. 43 Fed.Reg. 8962 (1978). The notice also stated:

The States are now preparing revisions to their State implementation plans (SIPs) as required by sections 110(a)(2)(1) (42 U.S.C. § 7410(a)(2)(1) (Supp.II 1978)) and 172 of the Act (42 U.S.C. § 7502 (Supp.II 1978)). This enterprise, which must be completed by January 1, 1979, requires that the States have immediate guidance as to the attainment status of the areas designated under section 107(d) (42 U.S.C. § 7407(d) (Supp.II 1978)). Congress has acknowledged this by imposing a tight schedule on the designation process and requiring EPA to promulgate the list within 180 days of the enactment of the amendments. Under these circumstances it would be impracticable and contrary to the public interest to ignore the statutory schedule and postpone publishing these regulations until notice and comment can be effectuated. For this good cause, the Administrator has made these designations immediately effective.

Id.

Petitioners (WOGA) filed a timely petition for review by this court. WOGA also submitted comments to the agency objecting to the designations. The California State Air Resources Board, which had hastily drafted the designations, also made substantive criticisms during the comment period. On September 1, 1978, the EPA announced that it had received the Board's comments and would allow thirty days for additional public comment. 43 Fed.Reg. 39101 (1978). WOGA took the opportunity to communicate both procedural and substantive objections. Revised attainment status designations for California appeared in the Federal Register on March 19, 1979. 44 Fed.Reg. 16388-91 (1979). Since the petitioners still were not satisfied on substantive grounds, they filed a motion for leave to amend the earlier petition for review, which was granted.

II THE ISSUES

As frequently is true in environmental cases, the issues are not simple. We initially confront the question of our jurisdiction to entertain this petition. After concluding that jurisdiction exists, we shall address petitioners' argument that all issues are foreclosed in its favor by reason of the doctrine of collateral estoppel. We reject this contention and then turn to the issue whether the EPA acted contrary to the requirements of the APA. We conclude that it did and this brings us to the vexing question of what, if anything, should be done to remedy this deficiency. After fashioning our response to this question, we reject the petitioners' request that we also review the administrative procedures employed by the California State Air Resources Board in developing the attainment status designations submitted to the EPA.

III JURISDICTION

We hold that section 7607 of the Clean Air Act Amendments, 42 U.S.C. § 7607 (Supp.II 1978), ² confers jurisdiction on this court to review the EPA's promulgation of the California designations. That section transfers to the courts of appeals a wide range of cases that would otherwise be in the jurisdiction of the district courts. These are then divided between the District of Columbia Circuit and all other circuits. The District of Columbia Circuit alone may review "nationally applicable" regulations and final agency actions, of which a number are specified by authorizing sections of the Act. That court also has exclusive jurisdiction to review agency action "based on determinations of nationwide scope or effect," if the action is so designated by the Administrator. The other circuits may hear suits that arise under enumerated sections of the Act within the regions they serve as well as challenges to "any other final action of the Administrator under this chapter ... which is locally or regionally applicable."

The California designations were not promulgated as "nationwide in scope or effect." They apply locally, not nationally. Their adoption, however, falls within none of the authorizing sections mentioned in section 7607. Thus, only if the designations constitute "any other final action" of the agency does this court have jurisdiction. In Harrison v. PPG Industries, Inc., 446 U.S. 578, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980), the Supreme Court recently held that the doctrine of ejusdem generis does not apply to limit the meaning of "any other" in the phrase "any other final action." A locally applicable final action is therefore reviewable by the appropriate regional court of appeals even if the action is not akin to those described in the authorizing sections set forth in section 7607. Id. at 1896. Thus, we need only decide whether the action we are asked to review was "final." We conclude that it was. ³

In reaching this conclusion we are guided by PPG Industries and Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Although in PPG Industries the Court stressed that the controversy before it was not about whether the action was final (the parties, with the Court's concurrence, agreed that it was, 100 S.Ct. at 1894-95), it did emphasize that short of an enforcement action, the EPA's decision in that case was "its last word on the matter." Id. at 1895. As Justice Stevens noted in...