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Bethlehem Steel Corp. v. EPA

Citation: 6 ELR 20486
No. No. 75-1568, 536 F.2d 156/8 ERC 2114/(7th Cir., 05/10/1976)

The court dismisses as not ripe for review petitions from steel and power companies and the City of Evansville challenging EPA's designation of certain areas in Indiana as "air quality maintenance areas" under § 110 of the Clean Air Act. Petitioners are mistaken in contending that ripeness is not an issue because this action is brought under § 307(b)(1) of the Act. That section does no more than provide for judicial review in an appropriate forum, and at least two circuits have dismissed suits brought under § 307(b)(1) on ripeness grounds. Kennecott Copper Corp. v. EPA, __ F.2d __ (10th Cir. Mar. 18, 1976); Buckeye Power, Inc. v. EPA, __ F.2d __, 5 ELR 20701 (6th Cir. 1975). As enunciated by the Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), the ripeness doctrine requires an evaluation of both the fitness of the issues for judicial decision and the hardship to the parties caused by withholding court consideration. While the issues raised in this case are sufficiently concrete for review at the present time, the challenged agency action is not "final" since the designations are merely part of a continuing agency decision-making process that has not yet resulted in an order requiring compliance by the petitioners. In addition, the petitioners have not alleged direct, immediate harm as a result of the designations. The steel and power companies' claims of adverse effects on their business and capital planning process and on their ability to raise capital funds are speculative, and do not in any event involve injuries on the order of concrete day-to-day business costs. The City of Evansville's claim of immediate harm due to an unavoidable choice of which among several environmental programs it will support with its limited resources is likewise not sufficient to warrant judicial relief at this stage of the proceedings. Moreover, the action challenged here will clearly be reviewable later, when the states complete their studies of the designated areas and air quality maintenance provisions are added to the state implementation plans. Indiana & Michigan Electric Co. v. EPA, 509 F.2d 839, 845, 5 ELR 20191 (7th Cir. 1975); Buckeye Power Co. v. EPA, 481 F.2d 162, 173, 3 ELR 20634 (6th Cir. 1973).

The full text of this opinion is available from ELR (13 pp. $1.75, ELR Order No. C-1043).

Counsel for Petitioners
John C. Berghoff
Chadwell, Kayser, Ruggles, McGee, Hastings & McKinney
135 S. LaSalle St.
Chicago IL 60603
(312) 725-2545

Peter G. Veeder
Thorp, Reed, & Armstrong
2900 Grant Bldg.
Pittsburgh PA 15219
(412) 288-7793

Counsel for Respondent
Paul M. Kaplow
Department of Justice
Washington DC 20530
(202) 739-2831

Bauer, J. for himself, Swygert & Hoffman, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]