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Western Oil & Gas Ass'n v. EPA

Citation: 10 ELR 20985
No. No. 78-1941, 633 F.2d 803/15 ERC 1487/(9th Cir., 12/01/1980)

The court rules that because the Environmental Protection Agency (EPA) promulgated final non-attainment area designations for California pursuant to § 107(d) of the Clean Air Act without providing an opportunity for notice and comment as required by the Administrative Procedure Act (APA), the designations must be remanded to give petitioners an opportunity to comment. The court initially rules that it has jurisdiction under § 307 of the Clean Air Act because the designations apply regionally and they constitute final agency action that is ripe for review. The court rejects petitioners' contention that the doctrine of collateral estoppel requires that the designations be invalidated. Although essentially identical EPA actions have been challenged in previous cases, 9 ELR 20311, 20316, 20560, 20597, the relevant facts of those suits are sufficiently separable from this case, and several courts of appeals have differed in their judgments regarding the legality of EPA's conduct. The court next rules that statutory deadlines for promulgating the designations are not pressing enough to constitute "good cause" under § 553(b) of the APA, and thus EPA acted without justification in not providing prior notice and an opportunity to comment. Nor can EPA's action be sustained under the "arbitrary and capricious" standard of review set out in § 307(d) of the Act, as that provision is inapposite to non-attainment designations. Accordingly, the regulations are remanded to provide petitioners an opportunity to comment on California's non-attainment designations, and any revisions will be substituted for the existing challenged regulations. Finally, the court rules that EPA's Administrator did not abuse his discretion by promulgating the designations without reviewing California's alleged noncompliance with the applicable procedural requirements.

Counsel for Petitioners
Christina Kaneen
McCutchen, Black, Verleger & Shea
30th Floor, 3435 Wilshire Blvd., Los Angeles CA 90010
(213) 381-3411

Counsel for Respondents
Edmund B. Clark, Fred R. Disheroon
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2307

Michele B. Corash, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before SNEED and SCHROEDER, Circuit Judges, and BURNS*, District Judge.