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New England Legal Found. v. Costle

Citation: 10 ELR 20447
No. No. 79-6202, 632 F.2d 936/16 ERC 1820/(2d Cir., 05/20/1980) Aff'd

The Second Circuit Court of Appeals affirms the district court's dismissal, 10 ELR 20438, of a suit challenging the Environmental Protection Agency's (EPA's) allegedly inadequate control of air pollution moving from New York and New Jersey into Connecticut. Rejecting appellants' claim that the EPA Administrator was required to withhold federal grants from the former states under § 176(b) of the Clean Air Act, the court notes that this enforcement measure was intended to apply only to revisions in state implementation plans required by the 1977 amendments to the Act. The court agrees with the district court that the 1977 amendments eliminated the Agency's duty to enforce its pre-1977 findings as to violations of the Act. The district court was similarly correct in concluding that the duty to develop regional control measures for ozone rests with the states and not the Administrator. As to appellants' federal common law claim against the Long Island Lighting Company, the court reserves decision pending consideration of a related question by the Supreme Court in Milwaukee v. Illinois, cert. granted, No. 79-408, 48 U.S.L.W. 3602, March 17, 1980.

Counsel are listed at 10 ELR 20438.

Before Timbers, Kearse and Werker,* JJ.