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New Jersey Dep't of Envtl. Protection v. EPA

Citation: 10 ELR 20963
No. No. 78-1392, 626 F.2d 1038/15 ERC 2238/(D.C. Cir., 06/30/1980)

The District of Columbia Circuit Court joins the Third and Fifth Circuits, 9 ELR 20316 and 9 ELR 20311, in setting aside the Environmental Protection Agency's (EPA's) designation of non-attainment areas in New Jersey pursuant to § 107(d) of the Clean Air Act for failure to adhere to the notice and comment requirements of § 553 of the Administrative Procedure Act (APA). The Court finds that the good-cause exemption from § 553 is to be narrowly construed and that stringent Clean Air Act deadlines for designating non-attainment areas do not constitute good cause for dispensing with the notice and comment requirements. Moreover, because no argument was advanced as towhy EPA could not have reconciled the commands of the APA and the Clean Air Act by publishing the designations as proposed rather than final rules, the court cannot apply the good cause exemption. The court rejects EPA's contention that § 553 permits post hoc comment, ruling that the APA contemplates that, in the absence of emergencies, notice and solicitations of comments must occur in the early stages of decision making, prior to promulgation of the final rule. In remanding the challenged designations to permit the opportunity for public participation and comment, the court retains jurisdiction over the case in order to expedite promulgation of final designations.

Counsel for Petitioner
Richard M. Hluchan, Deputy Attorney General
Dep't of Law and Public Safety
2nd Floor, State House Annex, Trenton NJ 08625
(609) 292-4925

Counsel for Respondent
Ronald C. Hausmann, Donald Stever; Angus MacBeth, Deputy Ass't Attorney General; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2808

Before McGOWAN and WILKEY, Circuit Judges, and DAVIES,* United States District Judge for the District of North Dakota.