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Waco, City of v. EPA

Citation: 10 ELR 20545
No. No. 78-1897, 620 F.2d 84/15 ERC 1174/(5th Cir., 06/26/1980)

The Fifth Circuit Court of Appeals determines that the Environmental Protection Agency's (EPA's) redesignation of a county as a non-attainment area under the 1977 amendments to the Clean Air Act without prior notice and opportunity for comment violates the Administrative Procedure Act (APA) even though the Agency provided a 60-day post-promulgation comment period. After the Texas Air Control Board designated McLennan County as "unclassifiable" for photochemical oxidant pollution, EPA changed the classification without providing pre-promulgation notice and comment. EPA contended that, under the "good cause" exception provision of the APA, the imminence of the statutory deadline for state implementation plans justified utilization of a post-promulgation comment period. The court rejects the applicability of the "good cause" exception following its previous decision in U.S. Steel Corp. v. EPA, 9 ELR 20311 (5th Cir. 1979). The court also rejects the Agency's contention that the issue is moot in light of the fact that EPA has subsequently changed the classification because the record does not indicate that the reclassification is permanent. The petition to set aside the designation is granted, and the matter is remanded to EPA for reconsideration of the designation in accordance with the procedural requirements of the APA.

For an analysis of related litigation, see Comment, Circuit Split Over APA Notice and Comment Requirements Derails EPA's Clean Air Act Non-Attainment Designations, 9 ELR 10173 (1979).

Counsel for Petitioner
David J. Beck
Fulbright & Jaworski
800 Bank of the Southwest Bldg., Houston TX 77002
(713) 651-5151

Counsel for Respondent
Barbara H. Brandon
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5287

Before TJOFLAT and SAM D. JOHNSON, Circuit Judges, and SEAR*, District Judge.