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Harrison v. PPG Indus., Inc.

Citation: 10 ELR 20353
No. No. 78-1918, 446 U.S. 578/14 ERC 1497/(U.S., 05/27/1980) Rev'd

The Supreme Court construes § 307(b)(1) of the Clean Air Act, which confers on the courts of appeals jurisdiction to review enumerated Environmental Protection Agency (EPA) decisions under the Act and any other final action that is locally or regionally applicable, to mandate direct court of appeals review of an EPA decision concerning the applicability of new source performance standards (NSPS) to respondent's waste-heat boilers. Respondent had initially sought review of the Agency's denial of respondent's formal request to have the NSPS declared inapplicable to its boilers. The Fifth Circuit Court of Appeals found itself without jurisdiction to entertain the case under § 307 and dismissed the petition. The Court reverses, holding that, although the administrative action at issue is not enumerated within § 307, it does fall within the scope of the term "any other final action" and thus was directly reviewable. The Court denies the applicability of the doctrine of ejusdem generis, which would restrict the scope of the term "any other final action" to include only actions similar to those enumerated elsewhere in § 307(b)(1), on the grounds, inter alia, that the doctrine is not applicable when the meaning of the general phrase is unambiguous, as it is here. The Court also rejects respondent's argument that the absence of discussion in the legislative history of a significant expansion in court of appeals' jurisdiction indicates that Congress could not have intended such a result when it added the disputed phrase to § 307 in 1977. There is no need for Congress to restate in committee what is obvious on the face of the statute. Finally, the Court brushes aside as misdirected respondent's argument that as a matter of policy it would be preferable to have an EPA action reviewed by district courts since appellate courts lack discovery tools to augment the scanty records characteristic of informal actions and might be forced into time-consuming remands to the EPA for fact finding. Revising the statutory language in light of such considerations is the role of Congress, not the courts.

Justice Powell concurs separately to express reservations concerning the constitutionality of the notice and review preclusion provisions of § 307(b). Justice Blackmun concurs with the broad interpretation of "final action," inviting Congress to set explicit limits upon appellate jurisdiction.

Justice Rehnquist dissents, contending that the phrase "any other final action" was intended to resolve problems of venue, not to effect major jurisdictional shifts from the district courts to the courts of appeals. In light of the silence on this point in the legislative history, he would not interpret § 307(b)(1) to increase the jurisdiction of the courts of appeals to broadly. Justice Stevens also dissents, largely out of concern that the EPA will be given virtually unlimited discretion to transform its informal advice into final agency action, which, if duly noticed in the Federal Register, would be subject to challenge in the court of appeals only once and become binding thereafter in enforcement proceedings.

Counsel for Petitioners
William Alsup, Ass't to the Solicitor General; Maryann Walsh, Michael P. Carlton, Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4279

Michele B. Corash, General Counsel; Earl Salo
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Respondents
Charles F. Lettow, Janet L. Weller
Clearly, Gottlieb, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 828-3000

Peter Wynne
PPG Industries, Inc.
One Gateway Center, Pittsburgh PA 15222
(412) 434-2406