Ohio Envtl. Council v. U.S. Dist. Court
Citation: 8 ELR 20042
No. No. 76-2581, 565 F.2d 393/10 ERC 1934/(6th Cir., 11/04/1977)
The court grants petitioner's request for a writ of mandamus directing the lower court to proceed with an enforcement action seeking to compel the Columbus & Southern Ohio Electric Co. (C&SOE) to comply with the fuel boiler emission limitations in Ohio's state implementation plan (SIP) under the Clen Air Act. In a separate case challenging the Ohio SIP, Buckeye Power, Inc. v. EPA (Buckeye II), 5 ELR 20701, the Sixth Circuit had refused to rule on the validity of the plan because the controversy was not ripe for judicial review due to pending revisions in the SIP. The Environmental Protection Agency (EPA) later completed the revisions, but the defendant district court stayed enforcement proceedings against C&SOE under the SIP, reasoning that the plan could not be enforced until EPA approval of the final plan had been judicially reviewed. In the instant case, the Sixth Circuit concludes that this was in error and the stay of enforcement was improperly issued by the district court. The lower court abused its discretion in issuing the stay because it made no provision for public health safeguards, the final compliance deadline has passed, and the stay of enforcement could delay settlement of the issue for years. Moreover, C&SOE has failed to show that prompt enforcement would harm it in any way other than having to meet its responsibility under the Ohio SIP. Nor has C&SOE shown that it was denied an opportunity to have the SIP reviewed by a court. Enforcement should not be delayed because of possible future judicial review of EPA's action, or because of possible revisions to the plan. The Act envisions continuous adjustments in an SIP, and each of these adjustments cannot be allowed to halt enforcement. Petitioner's request for a writ ordering the lower court to issue an injunction prohibiting excess emissions is too broad since mandamus should not be used actually to control the decision of the trial judge. The lower court instead is simply directed to apply the appropriate remedy in the enforcement proceeding according to law.
Counsel for Petitioner
A. Mark Segreti, Jr.
Segreti & Tousey
169 East Livingston Ave., Columbus OH 43215
Counsel for Respondents
J. Jeffrey McNealey
Porter, Stanley, Platt & Arthur
37 West Broad St., Columbus OH 43215
Before: CELEBREZZE, PECK and ENGEL, Circuit Judges.