Virginia Elec. & Power Co. v. EPA
Citation: 11 ELR 20929
No. Nos. 79-1347 et al., 655 F.2d 534/15 ERC 2039/(4th Cir., 04/28/1981)
The Fourth Circuit Court of Appeals transfers to the District of Columbia Circuit petitions for review of the national pollutant discharge elimination system (NPDES) permit provisions of the Environmental Protection Agency's (EPA's) consolidated permit regulations (CPRs). Because the Federal Water Pollution Control Act (FWPCA) allows review in any circuit in which a petitioner resides or transacts business, review of NPDES permit regulations is vested in the court where petitions are first filed under 28 U.S.C. § 2112(a). The Fourth Circuit is one of three courts in which petitions to review the NPDES permit regulations were filed simultaneously and was chosen as the court of review after consultation among the circuits. However, EPA subsequently promulgated consolidated regulations applicable to permit programs under the FWPCA, the Resource Conservation and Recovery Act, the Safe Drinking Water Act, and the Clean Air Act, the latter three of which provide for review of agency actions exclusively in the D.C. Circuit. Following another dead heat in the race to the courthouse, the Fourth Circuit determines in its discretion that review of all portions of the CPRs in the D.C. Circuit would best serve the convenience of the courts and the parties, judicial economy, and coherence of review.
A concurring opinion emphasizes that the judicial conundrum faced by the court in this and similar cases necessitates the legislative creation of a judicial mechanism which can rationally and simply designate the proper forum for review.
[The decision of the D.C. Circuit designating itself as the proper court of venue for review of all parts of the CPRs is reported at 11 ELR 20011 — Ed.]
Counsel for Petitioners
George C. Freeman Jr., Turner T. Smith Jr., William A. Anderson II, E. Gabriel Smith
Hunton & Williams
P.O. Box 1535, Richmond VA 23212
Counsel for Respondents
Alan W. Eckert, Richard Stoll
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
David T. Buente Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Counsel for Intervenors
Natural Resources Defense Council
1725 I St. NW, Washington DC 20006
Charles M. Darling IV, J. Patrick Berry
Baker & Botts
1701 Pennsylvania Ave. NW, Washington DC 20006
Joined by Phillips and Sprouse, JJ.