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Utah Power & Light Co. v. EPA

Citation: 7 ELR 20197
No. No. 76-1873, 553 F.2d 215/9 ERC 1873/(D.C. Cir., 02/22/1977)

The court explains the rationale behind its earlier order granting the Environmental Protection Agency's (EPA's) motion to dismiss a petition for review of the agency's decision subjecting three power plants currently under construction to new source review under EPA's regulations regarding "significant deterioration of air quality." The court concludes that it lacked jurisdiction to entertain the petition under § 307(b)(1) of the Clean Air Act. EPA's decision that the significant deterioration regulations apply to these plants because of design modifications (i.e., the elimination of scrubbers) made after the regulations became effective cannot be characterized as "action in approving or promulgating any state implementation plan" under § 307(b)(1). The petitioner is not attacking the validity of the significant deterioration regulations themselves but a particular interpretation or application of those regulations. If federal judicial review of EPA's decision is available at all, it must be in the district court. The court also notes that serious questions of due process would arise if neither § 10 of the Administrative Procedure Act nor the recently amended federal question statute offered a jurisdictional basis for district court review.

Counsel for Petitioner
Gerry Levenberg
Leonard, Cohen & Gettings
1747 Pennsylvania Ave., NW, Washington DC 20006
(202) 872-1095

Verl R. Topam
Legal Department, Utah Power & Light Co.
P.O. Box 899, Salt Lake City UT 84110
(801) 350-3535

Counsel for Respondent
Peter R. Taft, Ass't Attorney General; Earl Salo
Lands & Natural Resources Division, Department of Justice
Washington DC 20530
(202) 737-8200

Before: FAHY,Senior Circuit Judge, and LEVENTHAL, Circuit Judge