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Natural Resources Defense Council v. EPA

Citation: 5 ELR 20032
No. No. 72-2145, 507 F.2d 905/7 ERC 1181/(9th Cir., 11/11/1974)

The Ninth Circuit Court of Appeals finds that NRDC and the Arizona Nurses Association lack standing to challenge EPA's decision regarding the adequacy of the Arizona air quality implementation plan, but proceeds to review that decision since the remaining petitioner does have standing. The "injury" in fact standard of Sierra Club v. Morton necessitates that the party seeking review be himself among the injured, a test which the individual petitioner who is a resident of Arizona passes, but which non-profit corporations that cannot breathe the air in the state must fail. The court rules that Congress intended the rigorous variance procedure spelled out in § 110(f) of the Clean Air Act to apply only in those cases where a particular variance would prevent the attainment or maintenance of a national ambient air standard. The issuance by states of "minor" variances which do not threaten to prevent such attainment or maintenance, subject always to EPA approval, is therefore permissible both before and after the statutory "attainment" date of May 31, 1975. The court thus approves Arizona's conditional permit system which allows variances, and explains why a previous Fifth Circuit decision to the contrary is not convincing. The court also upholds EPA's approval of the plan's provisions regarding confidentiality and regulation of new and modified sources.

Counsel for Petitioners
Richard E. Ayres
Natural Resources Defense Council, Inc.
1710 N Street, N.W.
Washington, D.C. 20036

Counsel for Respondent
Thomas C. Lee
Edmund B. Clark
Martin Green
Department of Justice
Washington, D.C. 20530