League to Save Lake Tahoe v. Trounday
Citation: 9 ELR 20598
No. No. 77-2058, 598 F.2d 1164/13 ERC 1801/(9th Cir., 06/15/1979) Aff'd
The Ninth Circuit Court of Appeals affirms the dismissal, 7 ELR 20400, of a suit challenging the issuance of certificates of registration under the Nevada state implementation plan (SIP) for two proposed hotel-casinos. Appellants claimed that the two indirect sources would result in violations of the primary ambient air quality standard for the region, and thus the requirements of the Nevada SIP, and are therefore subject to challenge under § 304 of the Clean Air Act, which provides in relevant part for citizen suits to remedy violations of an "emission standard or limitation." The court, while noting that the term "emission standard or limitation" has traditionally been construed to mean specific restrictions on the composition and quantity of pollutants which may be emitted by a particular source, determines that a 1977 amendment to § 304(f) of the Act expanded the scope of this term to permit challenges to violations of state transportation control measures and air quality maintenance plans. The plain language of § 304(f) as well as the legislative history operate to give the courts jurisdiction over suits alleging violation of any indirect source review requirement contained in any SIP, including Nevada's. Accordingly, the court reverses the finding below that jurisdiction did not lie to hear the case. However, the court finds that appellants have failed to state a claim upon which relief can be granted. Because appellants have failed to state claim upon which relief can be granted. Because appellants have not alleged that the private developers have violated the terms of their certificates of registration, nor that the state defendants have failed to comply with the provisions of the Nevada SIP, they have not established a cognizable claim under § 304 of the Act, and the case was properly dismissed.
Counsel for Appellants
Joseph J. Brecher
506 15th St., Oakland CA 94612
Counsel for Appellees
Robert List, Attorney General
Supreme Court Bldg., Carson City NV 89701
Breen, Young, Whitehead & Hay
232 Court St., Reno NV 89501
McDonald, Carano, Wilson, Bergin & Bible
241 Ridge St., Reno NV 89505
Before BARNES and CHOY, Circuit Judges, and BARTELS,* District Judge.