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CITIZENS FOR A BETTER ENVIRONMENT v. COSTLE

May 16, 1985

CITIZENS FOR A BETTER ENVIRONMENT, ETC., AND MARTIN WOJCIK, PLAINTIFFS,
v.
DOUGLAS M. COSTLE, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANT. INLAND STEEL COMPANY, ET AL., PLAINTIFFS, V. DOUGLAS M. COSTLE, ETC., ET AL., DEFENDANTS. PEOPLE OF THE STATE OF ILLINOIS, ET AL., PLAINTIFFS, V. DOUGLAS M. COSTLE, ETC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Moran, District Judge.

MEMORANDUM AND ORDER

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).

I. BACKGROUND

A. Statutory Background

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
    section, [or]
    (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

  any person may commence a civil action . . . (2)
  against the Administrator where there is alleged
  a failure of the Administrator to perform any act
  or duty under

  this chapter which is not discretionary with the
  Administrator. . . . The district courts shall
  have jurisdiction . . . to . . . order the
  Administrator to perform such act or
  duty. . . .*fn2

42 U.S.C. § 7604(a). See e.g., Council of Commuter Organizations v. Metropolitan Transportation Authority, 683 ...


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