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American Lung Ass'n of N.J. v. Kean

Citation: 19 ELR 20759
No. Nos. 87-5904, 88-5063, 871 F.2d 319/29 ERC 1233/(3d Cir., 03/20/1989) Decisions aff'd

The court holds that New Jersey must follow the timetable adopted by the district court for implementing regulations in its Clean Air Act state implementation plan requiring the installation of devices to limit the escape of ozone during automobile refueling and loading of gasoline barges. The court first holds that the district court had jurisdiction under Clean Air Act § 304, since state agencies in violation of an emission standard are proper defendants in citizen suits. The explicit language of the Act allows suits against states in their regulatory capacity as well as in their capacity as polluters. The court holds that an industry group may not challenge the district court's liability decision on appeal, since the industry group never appealed the district court's decision to deny it the right to intervene in the liability phase of the trial.

The court upholds the district court's compliance schedule. The court holds that the district court did not abuse its discretion in giving the parties 36 days to submit recommended timetables. The Clean Air Act requires speedy action, plaintiffs were specifically seeking relief from the state's delays in implementing the required regulations, and the New Jersey Department of Environmental Protection (NJDEP) has not contested this timetable. The court holds that the district court did not abuse its discretion in adopting the NJDEP's proposed schedule for implementing the automobile refueling regulations. The court reasonably relied on evidence submitted by the NJDEP that the schedule is physically and economically practicable. The court holds that the district court did not abuse its discretion in adopting NJDEP's proposed schedule for implementing the barge loading controls. The district court minimized potential conflicts with proposed federal regulations currently under development by the Coast Guard by directing the state to consult with the Coast Guard.

[The district court's decisions are published at 18 ELR 20036 and 20317.]

Counsel for Plaintiff-Appellees
Eric A. Goldstein, Nancy C. Loeb
Natural Resources Defense Council, Inc.
122 E. 42nd St., 45th Fl., New York NY 10168
(212) 949-0049

Counsel for Defendant-Appellees
David Kaplan, Robert L. Klarquist, Martin W. Matzen
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Intervenor-Appellant
Dennis M. Toft
American Petroleum Institute
1220 L St. NW, Washington DC 20005
(202) 682-8000

Before Hutchinson and Scirica, JJ.