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Central Hudson Gas & Elec. Corp. v. EPA

Citation: 8 ELR 20893
No. Nos. 77-4192, 78-6032, 587 F.2d 549/12 ERC 1454/(2d Cir., 11/03/1978)

The Second Circuit upholds an opinion by the general counsel of the Environmental Protection Agency (EPA) determining that when EPA approves a state program for issuing national pollutant discharge elimination system (NPDES) permits the Agency retains jurisdiction over final permit proceedings pending at the time of approval. Public utilities from the State of New York challenged the opinion in the federal District Court for the Southern District of New York, which dismissed the complaint on the ground that exclusive jurisdiction over such suits lies in the courts of appeals. This ruling is in error; § 509 of the Federal Water Pollution Control Act vests exclusive jurisdiction in the courts of appeals only in specific circumstances and does nto apply to an opinion of the EPA general counsel concerning the Agency's jurisdiction. That provision should not be read broadly to limit district court jurisdiction to consider issues which are important and ripe for adjudication. The controversy is ripe because the general counsel's opinion constitutes final agency action within the meaning of § 10 of the Administrative Procedure Act, and because prompt resolution is in the public interest. On the merits, the court rules that the appellant utilities' NPDES permits, which are currently the subject of an adjudicatory hearing, have in fact been issued under EPA regulations, and thus need not be voided under § 402 of the Act. Any doubt on this question should be resolved not in favor of the statutory policy of transferring control of NPDES programs to the states but in favor of the policy of eliminating pollution from the nation's waters. A concurring opinion agrees that the district court had jurisdiction to hear the case but warns that this is an exception to the general rule that parties to administrative proceedings must exhaust their administrative remedies before bringing jurisdictional questions to the federal courts. A third opinion concurs with the result on the jurisdictional questions but would find in favor of appellants on the merits.

Counsel for Appellants
G.S. Peter Bergen, Robert J. Glasser, Thomas E. Mark
LeBoeuf, Lamb, Leiby & MacRae
140 Broadway, New York NY 10005
(212) 269-1100

Counsel for Appellees
Anne Sidamon-Eristoff, Patrick H. Barth, Louis G. Corsi, Ass't United States Attorneys; Robert B. Fiske, Jr., United States Attorney
One St. Andrews Plaza, New York NY 10007
(212) 791-0055

Warren H. Llewellyn
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Intervenor-Appellee Hudson River Fshermen's Ass'n
Albert K. Butzel, Clifford P. Case, III
Butzel & Kass
45 Rockefeller Plaza, New York NY 10020
(212) 765-1800

Feinberg, J., concurring; Brieant, J., concurring in part and dissenting in part.*