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Sierra Club v. Thomas

Citation: 17 ELR 21198
No. No. 86-1134, 828 F.2d 783/26 ERC 1465/(D.C. Cir., 09/08/1987)

The court holds that the Environmental Protection Agency (EPA) has not unreasonably delayed rulemaking to consider whether to add strip mines to the list of pollutant sources subject to fugitive emissions regulation under the Clean Air Act's prevention of significant deterioration (PSD) program. The court of appeals initially holds that it, rather than the district court, has jurisdiction in this case, since EPA had at most a discretionary duty under the Clean Air Act to avoid unreasonable delay. EPA's duty of timeliness is not specified in the statute with sufficient precision to be calculated to a date certain. Moreover, the Clean Air Act grants the court of appeals jurisdiction to consider final agency action, which can include agency inaction if such inaction has the same impact as agency action to deny the relief requested, or agency recalcitrance of such magnitude that it amounts to an abdication of statutory responsibility, or, as is alleged here, unreasonable delay of final action. The court holds that the Administrative Procedure Act imposes a duty of timely decisionmakiing that may be enforced in the court of appeals.

Turning to the merits of the case, the court notes that absent a precise statutory timetable or other factors counseling expeditious action, an agency's control over the timetable of a rulemaking proceeding is entitled to considerable deference. In the Clean Air Act, Congress has not accorded any special priority to completion of this rulemaking or imposed any statutory deadlines on it. Moreover, Congress has not required EPA to consider adding strip mines to the list of facilities whose fugitive emissions are regulated. Ordering EPA to accelerate this rulemaking may not improve public health and welfare, since acceleration might come at the expense of delay of EPA action elsewhere. If anything, this rulemaking might reasonably have a lower priority than many EPA activities because PSD regulation pertains to regions of the country that exceed the Clean Air Act's minimum standards. Finally, the actual time involved in this case — less than three years and little more than a year since the close of the public comment period — is not unreasonable.

Counsel for Petitioner
Joseph J. Brecher
Sierra Club Legal Defense Fund, Inc.
1424 K St. NW, Suite 600, Washington DC 20005
(202) 347-1770

Counsel for Respondents
Stephen L. Samuels
Civil Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before: RUTH B. GINSBURG, STARR and D. H. GINSBURG, Circuit Judges.