Northern Ohio Lung Ass'n v. EPA
Citation: 8 ELR 20213
No. Nos. 76-2369 et al., 572 F.2d 1143/11 ERC 1411/(6th Cir., 02/02/1978)
The court denies two petitions challenging the decision of the Administrator of the Environmental Protection Agency (EPA) to approve the State of Ohio's postponement of the attainment date in its state implementation plan (SIP) for the control of particulate emissions. Petitioner utilities do not challenge the postponement itself but claim that the Administrator abused his discretion in approving an attainment date with which compliance is allegedly technologically infeasible. The court finds this line of reasoning foreclosed by the Supreme Court's opinion in Union Electric v. EPA, 6 ELR 20570 (1976), which prohibits courts reviewing approvals or disapprovals of SIPs from weighing any criteria other than those listed within § 110 of the Clean Air Act. Technological feasibility is not listed as an appropriate consideration; hence, the utilities claim is groundless, and their petition is denied. Although on its face the language of the Act supports petitioner Northern Ohio Lung Association's (NOLA's) claim that the postponement was beyond the authority of the state or the Administrator under § 110, which requires that the attainment date for national primary standards fall no later than three years after approval of the SIP, the court infers from the legislative scheme, when taken as a whole, a congressional intent not to saddle state or federal authorities with a completely rigid timetable. Given this flexibility and the deference due EPA in such matters, the Administrator's approval cannot be held to be an abuse of discretion. The federal defendants' argument that the NOLA petition is moot because it is useless to challenge the postponement of a deadline which has already passed is rejected on the ground that a subsisting controversy exists between the parties which merits resolution by the court.
Counsel for Plaintiff Northern Ohio Lung Ass'n
Segretti & Tousey
169 E. Livington Ave., Columbus OH 43215
Counsel for Plaintiff Toledo Edison Co.
Fuller, Henry, Hodge & Snyder
300 Madison Ave., P.O. Box 2088, Toledo OH 43603
Counsel for Plaintiff Ohio Edison Co.
Guren, Merrit, Sogg & Cohen
650 Terminal Tower, Cleveland OH 44113
Counsel for Plaintiff Cleveland Electric Illuminating Co.
P.O. Box 5000, Cleveland OH 44101
Counsel for Respondents
Ronald L. Hausmann
Environmental Protection Agency, Washington DC 20460
Land & Natural Resources Division
Department of Justice, Washington DC 20530
Before: PHILLIPS, Chief Judge; ENGEL, Circuit Judge, and FREEMAN, Senior District Judge.*