The opinion of the court was delivered by: Moran, District Judge.
Plaintiffs, Citizens for a Better Environment and Martin
Wojcik, a citizen and resident of Illinois (hereinafter
collectively referred to as "CBE"), have filed this action
under section 304(a)(2) of the Clean Air Act,
42 U.S.C. § 7604(a)(2), against defendants William D. Ruckelshaus, the
Administrator of the United States Environmental Protection
Agency ("EPA") and Valdas V. Adamkus, EPA's Regional
Administrator for Region V. CBE has moved for clarification and
for reconsideration of this court's memorandum and order of
December 27, 1983, dismissing count I for lack of subject
matter jurisdiction. In count I CBE claimed, inter alia, that
the EPA failed to perform a nondiscretionary duty under the
Clean Air Act (the "Act") by failing to promulgate regulations
to remedy a deficiency the EPA found in Illinois'
implementation plan. CBE now seeks an order compelling the EPA
to perform its non-discretionary duty pursuant to section
110(c)(1)(B) of the Act, 42 U.S.C. § 7410(c)(1)(B).
The primary goal of the Clean Air Act is to protect the
public's health. Clean Air Act § 101(b)(1),
42 U.S.C. § 7401(b)(1). The Act places the responsibility for achieving
this goal on both federal and state governments. Due to the
states' failure to adequately respond to the problem of air
pollution, however, Congress has increasingly placed greater
reliance on the federal government to ensure the states'
compliance. See, e.g., Union Electric Co. v. EPA, 427 U.S. 246,
249, 96 S.Ct. 2518, 2522, 49 L.Ed.2d 474, reh'g denied,
429 U.S. 873, 97 S.Ct. 189, 50 L.Ed.2d 154 (1976).
Accordingly, the Act required the EPA to adopt "national
primary ambient air quality standards," and the states to
adopt "state implementation plans" ("SIPs") designed to attain
those standards by 1975. Nevertheless, many states failed to
attain those standards, see 123 Cong.Rec. 18015 (1977)
(statement of Act's chief sponsor, Senator Muskie), and so
Congress amended the Act in 1977. See Clean Air Act Amendments
of 1977, Pub.L. No. 95-95, 91 Stat. 685 (1977). The 1977
Amendments added a new section, part D, for those states with
"non-attainment areas." Part D requires each state to revise
its SIP for these non-attainment areas and section 172 of part
D specifies the provisions required in the revised plans. Clean
Air Act § 172(a)(1), (b)(1)-(10), 42 U.S.C. § 7502(a)(1),
(b)(1)-(10). Section 172(a)(1) requires that the revised plan
"provide for attainment" of the national primary standards "not
later than December 31, 1982," 42 U.S.C. § 7502(a)(1), and
section 110(a)(2)(1) subjects states to a construction ban for
failing to revise their SIPs. 42 U.S.C. § 7410(a)(2)(I).
Moreover, section 110(c)(1)(A-B) provides that
"[t]he Administrator shall . . . promptly prepare
and publish proposed regulations setting forth an
implementation plan, or any portion thereof, for a
State if —
(A) the State fails to submit an implementation
plan which meets the requirements of this
(B) the plan, or any portion thereof . . . is
determined by the Administrator not to be in
accordance with the requirements of this
section. . . .
42 U.S.C. § 7410(c)(1)(A-B) (emphasis added).
Judicial review of the Administrator's actions
(e.g., to adopt an SIP, to promulgate federal regulations,
etc.), must be had in the courts of appeals. Clean Air Act §
307(b)(1), 42 U.S.C. § 7607(b)(1). Section 307(b)(1) provides,
in pertinent part, that "review of the Administrator's action
in approving or promulgating any implementation plan . . . or
any other final action of the Administrator . . . may be filed
only in the United States Court of Appeals for the appropriate
circuit." 42 U.S.C. § 7607(b)(1). To remedy any action which
after review the Court of Appeals finds arbitrary and
capricious, section 307(d)(9) provides only that "the court may
reverse any such action. . . ."*fn1 42 U.S.C. § 7607(d)(9).
An order compelling the Administrator to perform a
non-discretionary duty under the Act, however, must be had in
the district courts. Clean Air Act § 304(a), 42 U.S.C. § 7604(a).
Section 304(a) provides, in pertinent part, that
42 U.S.C. § 7604(a). See e.g., Council of Commuter
Organizations v. Metropolitan Transportation Authority,