5 ELR 20435 | Environmental Law Reporter | copyright © 1975 | All rights reserved


Sierra Club v. Drain

No. CV 74-L-159 (D. Neb. May 14, 1975)

The court grants in part and denies in part defendants' motions to dismiss for failure to state a claim, a suit seeking to halt construction of a 650 megawatt coal-burning power plant in western Nebraska. Plaintiff Sierra Club, which has standing to maintain this action, contends that a state construction permit for the plant was illegally issued since the power company has failed to show that the plant would operate within new source performance standards for sulphur dioxide and particulates promulgated under the Clean Air Act. The court rules that it has jurisdiction to decide whether the statute requires a preconstruction determination of particulate opacity and a substantial coal field analysis of sulphur content, or whether a contractual promise to perform within the Act's parameters is sufficient. Also framed as an issue for trial is the question of whether the standard of particulate opacity is a preconstruction design standard or merely an enforcement standard after operation commences. The court exercises its discretion and dismisses accompanying claims alleging violations of state administrative procedures though it could hear such claims under the doctrine of pendent jurisdiction.

Counsel for Plaintiff
H. Anthony Ruckel
S. Chandler Visher
Sierra Club Legal Defense Fund
530 Majestic Building
Denver, Colo. 80202

John A. Gale
McGinley, Lane, Mueller, Shanahan, McQuillan & Gale
P.O. Box 1287
North Platte, Neb. 69101

Counsel for Defendants
Paul L. Douglas Attorney General
Harold Mosher Asst. Attorney General
2119 State Capitol
Lincoln, Neb. 68509

Robert Crosby
Crosby, Pansing & Guenzel
Lincoln Building
Lincoln, Neb. 68508

Gene Watson
Barlow, Watson & Johnson
P.O. Box 81686
Lincoln, Neb. 68501

[5 ELR 20436]

Urbom, J.

MEMORANDUM AND ORDER

This matter is before the court on the motion to dismiss of the defendant Drain individually, filing 3; the motion to dismiss of the defendant Drain as Director of the Department of Environmental Control, filing 4; the motion to dismiss of the Department of Environmental Control, filing 5; and the motion to dismiss of the defendant Nebraska Public Power District, filing 6. Extensive briefs have been submitted by the parties, oral argument on these motions was held on March 31, 1975, and they are now ready for decision. The motions will be granted in part and denied in part, for the reasons expressed in this memorandum.

THE FACTUAL BACKGROUND

Some understanding of the circumstances surrounding these motions is helpful for understanding the resolution of the complex and close questions raised in the motions. The dispute focuses on the grant of a construction permit by the Department of Environmental Control of the State of Nebraska (hereinafter DEC) to the Nebraska Public Power District (hereinafter NPPD) to build the Gerald Gentleman Power Station (hereinafter power plant) near Sutherland, Nebraska. The power plant will have a capacity of 650 megawatts and will burn coal shipped by Atlantic Righfield Company (hereinafter ARCO) from its Black Thunder Mine in Wyoming. The plaintiff Sierra Club is a nonprofit corporation organized under the laws of the State of California with a membership of approximately 145,000 persons organized into over forty regional chapters. The Nebraska chapter includes the Platte Valley Group of over one hundred members, more than half of whom reside within a ten-mile radius of the power plant site.

The dispute between the parties began in late 1973 at a time when substantial excavation activities at the power plant site had begun. On November 7, 1973, the plaintiff notified the United States Environmental Protection Agency (hereinafter EPA), the DEC and NPPD that the excavation began the process of construction without application for a construction permit, in violation of the Clean Air Act Amendments of 1970 new source performance standards and preconstruction review requirements. On January 14, 1974, the DEC informed the plaintiff that construction on the power plant itself could not commence without a construction permit. On February 1, 1974, DEC Director J. L. Higgins determined that a hearing was necessary to determine whether a permit should be issued. The hearing was conducted by a special hearing officer, Duane L. Nelson, and began on March 21, 1974, and concluded after two recesses on April 25, 1974. The hearings were conducted under the rules of evidence of the district courts of the State of Nebraska, pursuant to a motion of right by NPPD. The hearing officer's findings were made on June 11, 1974. The essential findings were as follows:

1. That NPPD had failed to meet by a preponderance of the evidence its burden to show that the power plant would operate within the federal new source performance standard for particulate opacity (40 CFR 60.42(b));

2. That NPPD failed to meet said burden regarding the federal sulfur dioxide emission standard (40 CFR 60.43(b));

3. That NPPD had failed to meet said burden regarding the federal prohibition against a new stationary source's causing significant deterioration of the existing ambient air quality;

4. That a flue scrubber was the available control technology which would abate such air pollution; and

5. That, in fact, the evidence showed that significant crop and tree damage would occur if the power plant were operated as presently designed.

Based on these findings the hearing officer recommended that a construction permit be denied until NPPD changed its plans and specifications to include the most effective flue-gas scrubbing device or until NPPD presented a detailed coal analysis based upon comprehensive sampling of the coal field from which NPPD had firm contractual rights for its coal supply, which would show that the power plant had coal of sufficiently low sulfur content to meet pollution standards.

On July 19, 1974, the Acting Director of the DEC, George H. Ludwig, filed an order overruling the hearing officer, in which he found:

1. That NPPD had carried out its burden to show that new source performance standards would not be violated by showing that it had a contract with ARCO to supply coal of sufficiently low sulfur content and by convincing the DEC that the opacity standard in 40 CFR § 60.42(a)(2) is not a design standard;

2. That a significant deterioration of ambient air quality would not occur;

3. That upon satisfaction of certain conditions in the power plant's coal supply agreement and a promise of installation of equipment for monitoring opacity, a construction permit would issue; and

4. That the requirement of an operating permit before the power plant goes on line provides a further check on NPPD's potential for pollution.

After a showing by NPPD that it had satisfied the further conditions laid down by the Acting Director, the new Director, Dan T. Drain, on September 16, 1974, issued an order granting NPPD a construction permit for the power plant. This lawsuit was filed on October 16, 1974, seeking a determination that the construction permit for the power plant was granted in violation of the Clean Air Act Amendments of 1970, Title 42, U.S.C. § 1857 et seq., and the federal regulations issued pursuant to that Act. In addition, the complaint raises several issues concerning violation of procedure under Nebraska law. The ultimate relief sought is an order remanding to the DEC the question of the issuance of the construction permit and enjoining construction of the power plant until after lawful reconsideration of the question and reissuance of the construction permit by the DEC. Shortly after the filing of this case the plaintiff filed an appeal of the DEC decision in the Lancaster County, Nebraska, district court under § 81-1509, R.R.S. Nebraska 1943. The plaintiff has moved in that court to stay that action pending the outcome of this lawsuit in federal court. That motion is apparently still pending at this time. The plaintiff is also challenging the construction of the power plant before the Federal Power Commission.The proceedings before the Federal Power Commission concern issues totally unrelated to those raised in this lawsuit.

JURISDICTION OF THE COURT

The initial ground for dismissal which must be dealt with is the claim that this court lacks subject matter jurisdiction. That claim must be rejected. First, the plaintiff has asserted that this court has jurisdiction pursuant to Title 42 U.S.C. § 1857h-2, which provides as follows:

. . . any person may commence a civil action on his own behalf —

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter. . . .

Title 42 U.S.C. § 1857h-2(f) defines "an emission standard or limitation under this chapter" as follows:

. . . (1) a schedule or timetable of compliance, emission limitation, standard of performance or emission standard,. . . which is in effect under this chapter (including a requirement applicable by reason of section 1857f of this title) or under an applicable implementation plan.

This particular jurisdictional statute has been the subject of very little interpretation by the federal courts. The most extensive commentary is supplied by Citizens Association of Georgetown, Washington, 383 F. Supp. 136 (U.S.D.C. D.C. 1974). That court well noted that the two most critical features of this statute are that it confers federal jurisdiction irrespective of the amount in controversy [5 ELR 20437] and over violations of emission limitations, even if those standards are only proscribed by state or local statutes, if the state or local statute is part of an implementation plan. That court also detailed the definitions of the terms contained in Title 42 U.S.C. § 1857h-2(f)(1):

1. A schedule or timetable of compliance.

These are timetables for compliance with the emission limitations, which timetables are to be found in the implementation plans. 42 U.S.C. § 1857c-5(a)(2)(B).

2. Emission limitation.

These are measures within state implementation plans which are necessary to ensure attainment and maintenance of the national primary and secondary air quality standards.

3. Standard of performance.

These are the degrees of emission limitations which the Administrator of EPA establishes for new sources within each category of stationary sources. 42 U.S.C. § 1857c-6(a)(1).

4.Emission standard.

These are the emission limitations applicable to hazardous air pollutants, which are those air pollutants for which no ambient air quality standard is applicable. 42 U.S.C. § 1857c-7(b)-(d).

Thus the question is whether the complaint alleges that each defendant is in violation of any of the above four categories. The question is not entirely free from doubt, but I conclude that the complaint does not allege a violation of any of the above. What the complaint alleges is that the DEC and its Director failed to conduct properly a preconstruction review of the power plant. The DEC and its Director are not alleged to be in violation themselves of these various standards. At most the allegation is that NPPD's power plant is under construction in potential violation of the standards of performance for new sources. Citizens Association of Georgetown v. Washington, supra, indicates inferentially that such an allegation would state a violation of an emission limitation. This court is not persuaded that this term is used by the Clean Air Act Amendments of 1970 with quite the breadth the District of Columbia court attributes to it. A careful reading of the language of Title 42 U.S.C. § 1857c-5(a)(2) leads to the inescapable conclusion that emission limitations are quite distinct from the required procedures for preconstruction review of new sources, since they are listed in separate subparagraphs as distinct requirements for state implementation plans. This position is consistent with the authoritative construction given this term by the Supreme Court of the United States in Train v Natural Resources Defense Council, U.S. , 43 U.S.L.W. 4467 (April 16, 1975). There the court defined emission limitations as follows:

. . . regulations of the composition of substances emitted into the ambient air from such sources as power plants, service stations, and the like. They are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards. 43 U.S.C.W. at 4472.

Moreover, this court will not construe an allegation of the potential for violation of a standard of performance to be an allegation of the violation of a standard of performance. The other two categories are plainly inapplicable. There is no allegation that any of the hazardous air pollutants found in 40 CFR § 61 are involved in this litigation. These is no allegation that the power plant is not in compliance with any timetable under the Nebraska implementation plan for meeting any emission limitation or standard. Thus this court is without jurisdiction under Title 42 U.S.C. § 1857h-2 to hear this matter.

The plaintiffs have alleged as an alternative basis for jurisdiction title 28 U.S.C. § 1331, the general federal question jurisdiction of the federal district courts. Jurisdiction is proper under this section if "the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another." Bell v Hood, 327 U.S. 678, 685 (1946); Wheeldin v. Wheeler, 373 U.S. 647, 649 (1963). Such is clearly the case here, since if the Clean Air Act Amendments of 1970 and the concomitant regulations are interpreted to require states to make a preconstruction determination of particulate opacity for new sources or to require prior to construction substantial coal field analysis in support of a low sulfur coal contract to meet sulfur dioxide emission standards, for example, then the plaintiff will prevail on its claim. If, on the other hand, the statute and regulations are interpreted not to have these requirements, the defendant will prevail at least as to these claims. See City of Highland Park v Train, 374 F. Supp. 758, 768-70 (U.S.D.C. N.D. Ill. 1974). Thus, if the jurisdictional amount is met, there is federal jurisdiction over at least some of the plaintiff's claims. The claims will be analyzed individually in a later portion of this memorandum. This finding of federal jurisdiction is not to indicate that each of the claims states a cause of action. That is, there may be a violation of federal law for which there is no federal remedy, either by way of injunction or damages. The remedy of a declaratory judgment would, of course, be available. See Title 28 U.S.C. §§ 2201-02. This is an issue which was not briefed by any of the parties and it is not an issue which must be decided in order to resolve the remaining questions raised by the motions to dismiss. Hence, it will not be decided now. Nonetheless, it is an issue which must be resolved before the conclusion of this case. Counsel for all parties are invited to submit briefs on this subject within the time provided in this memorandum and order.

As noted above, the mere presence of a federal question does not confer jurisdiction on this court. There must also be more than $10,000 involved in the plaintiff's claim. Once the defendant challenges the jurisdictional amount the court must deny the motion to dismiss for want of a jurisdictional amount unless it appears to a legal certainty that the claim is for less than that amount. St. Paul Mercury Indemnity Co. v Red Cab Co., 303 U.S. 283, 288 (1938). The proper answer in this case is not entirely free from doubt. It is undisputed that the Sierra Club and its Nebraska chapter are not now suffering any ill effect of pollution from the power plant, since the plant is not as yet under construction. Thus Illinois v City of Milwaukee, 406 U.S. 91, 98 (1972), is not directly applicable, since in that case actual pollution present at the time of the suit was alleged. It is also evident from the pleadings that this case is brought by the Sierra Club as an individual party plaintiff and not as a class action. It is also apparent from the pleadings that damages are not sought, but only injunctive and declaratory relief. Where the remedy sought is an injunction rather than money damages, the amount in controversy is determined by the value of the right which is sought to be enforced. McNutt v General Motors Acceptance Corp., 298 U.S. 178, 181 (1936); Bishop Clarkson Memorial Hospital v Reserve Life Insurance Co., 350 F.2d 1006, 1008 (C.A. 8th Cir. 1965). Here, the right sought to be enforced is the right to have a preconstruction review of a new source conducted in accordance with federal regulations. At least one court has found the value of this right to be greater than the jurisdictional amount. Citizens Association of Georgetown v Washington, 370 F. Supp. 1101, 1107 (U.S.D.C. D.C. 1974). Another federal court has found a right of sufficient value where a group of citizens sought to prevent by injunction future environmental deterioration rather than to abate present environmental pollution. Scherr v Volpe, 336 F. Supp. 882, 885 (U.S.D.C. W.D. Wisc. 1971). Here, the Sierra Club in essence is asserting just such a right. The plaintiff seeks a preconstruction review conforming to federal regulations so that a power plant will not be built which is incapable of meeting pollution emissionstandards. While it is true that under federal and state regulations such a plant may not, absent a variance, be placed in operation, the plaintiff's fear is that the vest expenditure to build the power plant here in question will dictate just such a variance to the detriment of the environment. Such a connection to harm to the environment is sufficient to convince this court that the value of the right here in question exceeds the jurisdictional amount.

Three separate jurisdictional issues remain to be answered, however, before this court can hold that it has subject matter jurisdiction over the dispute.

First, the standing of the plaintiff to raise the issue must be determined. The plaintiff has alleged in its complaint that it has a Nebraska chapter which includes a Platte Valley Group with over one hundred members, over half of whom reside within a ten-mile radius of the plant site. These members, Sierra Club urges, will be [5 ELR 20438] injured by having their farming and ranching activities impaired, by substantial degradation of existing clean air, and by resulting damage of aesthetic values and to the use and enjoyment of existing unfarmed areas along the river bottoms. Finally, Sierra Club explicitly states that it is bringing this suit not only on its own behalf but on behalf of its injured and concerned members. Were this a suit for judicial review of federal administrative action under the Administrative Procedure Act, there is no doubt that the allegations of the complaint meet the standard for a group representing its members announced in Sierra Club v Morton, 405 U.S. 727 (1972). See United States v SCRAP, 412 U.S. 669 (1973). The general requirement for standing in federal question cases has recently been re-examined in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974). The critical requirement is an allegation of a concrete injury to the plaintiff:

Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution. It adds the essential dimension of specificity to the dispute by requiring that the complaining party have suffered a particular injury caused by the action challenged as unlawful. . . . Only concrete injury presents the factual context within which a court, aided by parties who argue within the context, is capable of making decisions. 418 U.S. at 220-221.

I am convinced from a reading of the complaint that the plaintiff has alleged such threatened concrete injury. The court in Schlesinger v Reservists Committee to Stop the War, supra, cited Sierra Club v Morton, supra, in support of its position at several points in the opinion and explicitly distinguished the situation in United States v SCRAP, supra, which is similar to the situation in this lawsuit, as stating such a concrete injury. 418 U.S. at 223. Thus it is the holding of this court that the Sierra Club has standing to prosecute this lawsuit.

Second, the question of whether the plaintiff is in effect aggregating claims to reach the jurisdictional amount, in violation of Snyder v Harris, 394 U.S. 332 (1969), and Zahn v International Paper Co., 414 U.S. 291 (1973), must be answered. Snyder and Zahn forbid the aggregating of separate and distinct claims for damages in a class action in order to reach the jurisdictional amount. In so doing Snyder and Zahn were simply recognizing a rule of ancient application outside the context of class actions. See, e.g., Troy Bank v G.A. Whitehead & Co., 222 U.S. 39, 40-41 (1911). Trov Bank and Zahn both recognized, however, that several plaintiff may aggregate their claims where they are uniting to enforce a single title or right in which they have a common and undivided interest. The plaintiff's interest in clean air is such a right. See generally, Gibbs v Buck, 307 U.S. 66 (1939). In Zahn, the court inferentially recognized that the interest in clean water asserted by the multiple party plaintiffs was not a single right in which the plaintiffs had a common and undivided interest. But Zahn was a suit for damages caused by pollution of a lake brought by lakefront property owners, and the damage each suffered could economically be determined quite separately from the damage suffered by the others. Here there is as yet no separate damage to measure, and in addition to the damage that foul air might do to the individual property of each of the members of the Platte Valley Group, these members have a common and undivided interest in the air which all breathe in common and in the common or public areas surrounding the power plant site. This latter interest is not separate and distinct to each member. Nor can this court say to a legal certainty that it value is less than the jurisdictional amount.

Third, the defendants have challenged the ripeness of this lawsuit on the ground that the complaint in essence alleges only that upon completion of construction the power plant may operate in violation of a standard of performance and that the time for judicial scrutiny of the power plant is when and if the power plant is put in operation in violation of those standards. Such a challenge misconstrues the allegations in the complaint The complaint is that a federal statute and its accompanying federal regulations require that a preconstruction review of this power plant be carried out in a particular way and that the review in fact was not carried out in the prescribed manner. Thus there is at the present time a definite, concrete question for resolution by this court which would admit of relief through a decree to be issued by the court. See Aetna Life Insurance Co. v Haworth, 300 U.S. 227 (1937).

Therefore, there is federal question jurisdiction over at least some of the plaintiff's claims. The propriety of exercising pendant jurisdiction over the nonfederal claims will be discussed below when those claims are examined to determine whether they state a claim upon which relief can be granted.

THE ELEVENTH AMENDMENT

The defendants in this action are the DEC and NPPD, which are political subdivisions of the State of Nebraska, and the Director of the DEC, an officer of the State of Nebraska. All three defendants seek dismissal on the ground that this is in effect a suit against the State of Nebraska, which is barred by the Eleventh Amendment of the United States Constitution.

It is clear that the state need not be named as a party for the suit to be barred by the Eleventh Amendment. Ford Motor Co. v Department of Treasury, 323 U.S. 459 (1945). It is also clear that not every suit against an officer or a political subdivision of a state is a suit against the state. Ex Parte Yound, 209 U.S. 123 (1908); Edelman v Jordan, 415 U.S. 651 (1974). The source of most recent judicial reflection on what the proper standard for determining when a suit is barred by the Eleventh Amendment is found in Ex Parte Young, supra. There, the United States Supreme Court held that the Eleventh Amendment does not bar a suit to enjoin the enforcement of a state statute that is in violation of the federal constitution. Ex Parte Young is not directly applicable to the facts here, since the plaintiff does not seek to enjoin state administrative action carried on pursuant to an unconstitutional statute, but rather to enjoin state administrative action inconsistent with applicable federal regulations, which regulations must govern under the Supremacy Clause of the United States Constitution. However, Ex Parte Young relied heavily upon In re Ayers, 123 U.S. 443 (1887), in developing its qualification of the Eleventh Amendment, and In re Ayers contains well considered language which clearly covers the facts before this court:

Nothing can be interposed between the individual and the obligation he owes to the Constitution and laws of the United States, which can shield or defend him from their just authority, and the extent and limits of that authority the government of the United States, by means of its judicial power, interprests and applies for itself. If, therefore, an individual, acting under the assumed authority of a State, as one of its officers, and under color of its laws, comes into conflict with the superior authority of a valid law of the United States, he is stripped of his representative character, and subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States. 123 U.S. at 507.

Several recent opinions of the United States Supreme Court also contain language indicating that the Eleventh Amendment bar does not apply to suits to enjoin state administrative action inconsistent with applicable federal statutes and regulations. Both Edelman v Jordan, supra at 668, and Scheuer v Rhodes, 416 U.S. 232, 237 (1974), indicate that failure to comply with federal law generally is sufficient in these circumstances to escape the bar posed by the Eleventh Amendment. Similar broad language can be found in Ford Motor Co. v Department of Treasury, supra at 462. Board of Regents v Dawes, 370 F. Supp. 1190 (U.S.D.C. Neb. 1974), is distinguishable, since that case involved a counterclaim against a state agency for damages which would have been payable from the general treasury of the State of Nebraska. Thus it would be within the bar of the Eleventh Amenment as explained in Edelman v Jordan, supra.

All of the above analysis is clearly applicable to the defendant Drain, who by the fiction created in In re Ayers, supra, and Ex Parte Young, supra, is viewed as sued in his individual capacity for actions done while acting in his official capacity. Thus he is properly sued both in his individual and official capacity in this injunctive action. It is also properly applicable to the DEC, since for purposes of the Eleventh Amendment state agencies are viewed within the same framework as state officers, namely as agents of the state; and the same criterion is applied to them to determine whether or not the state is the real party being sued. See Tullock v State Highway Commission of Missouri, 507 F.2d 712 (C.A. 8th Cir. 1974); Louisiana State Board of Educating v Baker, 339 F.2d 911 (C.A. 5th Cir. 1964); Hubel v West Virginia Racing Commission, 376 F. Supp. 1 (U.S.D.C. [5 ELR 20439] S.D. W.Va. 1974); Dorsey v State Athletic Commission, 168 F. Supp. 149 (U.S.D.C. E.D. La. 1958), aff'd 359 U.S. 533 (1959).

The NPPD, however, does not stand in the same position as either Drain or the DEC. There is no allegation that it has acted contrary to governing federal statutes and regulations. Nonetheless, it is a party necessary to the plaintiff's obtaining full relief should the plaintiff prevail on the merits, since it is now constructing the power plant, the construction of which without a validly issued permit the plaintiff seeks to enjoin. Moreover, it too is an agent of the state and not automatically identifiable with the state for purposes of the Eleventh Amendment. Derivatively and indirectly it would be in violation of the federal statutes and regulations if the plaintiff is correct, since it would be conducting construction of a new source without a validly issued construction permit. Its position thus is sufficiently similar to that of the other defendants to allow application of the Ex Parte Young fiction to it also.

Therefore, it is the holding of this court that the Eleventh Amendment does not serve as a bar to the action brought against any of the defendants.

FAILURE TO STATE A CLAIM

The defendants have separately challenged each of the seven claims of the plaintiff on the ground that each of them fails to state a claim upon which relief can be granted. Each of the claims and the challenge to it will be examined separately.

A. The first claim.

The plaintiff's first claim is that the DEC issued a construction permit for the power plant without requiring NPPD to make the showing of its ability to meet new source performance standards for sulfur dioxide emissions contained in 40 CFR § 60.43(b) and for particulate opacity contained in 40 CFR § 60.42(b), contrary to the Clean Air Act Amendments of 1970 and the accompanying regulations. Given what has already been said above in the section of this memorandum dealing with federal question jurisdiction, this claim certainly states a claim upon which relief can be granted as to the defendants Drain and the DEC. It also states a claim against NPPD since, as also noted above, NPPD is a party necessary to obtaining the relief sought by the plaintiff.

B. The second claim.

The second claim is closely related to the first one and alleges that the DEC through its director took the position that the new source performance standard for particulate opacity contained in 40 CFR § 60.42(a)(2) is not applicable to preconstruction review, contrary to the Clean Air Act Amendments of 1970 and the accompanying regulations. This claim also states a federal question, as noted above, and thus states a claim upon which relief can be granted.

C. The third claim.

The third claim alleges various violations of the Nebraska Administrative Procedure Act, § 84-901 et seq., R.R.S. Nebraska, 1943, the Nebraska Environmental Protection Act, §§ 81-1507-08, R.R.S. Nebraska, 1943, and the Rules of Practice and Procedure of the DEC, by the DEC in making its decision to issue the construction permit for the power plant. The defendants attack this claim on the ground that it states an issue of state law only. The plaintiff asserts that the violations alleged also amount to a denial of due process.This court finds, however, that the basic thrust of the allegations is that state law was violated and that the claim of denial of due process of law does not raise a substantial federal question. Nonetheless, this claim states a claim upon which relief can be granted, because it comes within the pendant jurisdiction of the court under the principles announced in United Mine Workers of America v Gibbs, 383 U.S. 715 (1966). Thus the claim is sufficient to withstand the particular motions to dismiss filed by the defendants. The doctrine of pendant jurisdiction, however, is a doctrine of discretion. United Mine Workers of America v Gibbs, 383 U.S. at 726. While I am convinced that I have the power to decide this issue, I am also persuaded that this is an issue best left to the state court to decide in the action already filed by the plaintiff. It is my conviction that judicial economy and the principles of federal-state comity would best be served in this instance if decisions regarding fulfillment of appropriate state procedures are made by the court which under the pertinent state statute is vested with supervisory power over the actions of the DEC. This nation's effort to control the pollution of our environment is a joint federal-state project in which the federal parameters are best defined by the federal courts and the state statutory framework built within those parameters is best interpreted by the state courts. Therefore, this court will not exercise jurisdiction over the third claim raised by the plaintiff.

D. The fourth claim.

The fourth claim, insofar as it raises questions different from those raised in the first claim, asserts that the DEC was governed by the rules of evidence for the district courts of the State of Nebraska in considering evidence in making its decision to issue the construction permit and that the DEC did not abide by these rules. The reasoning applicable to the third claim is also pertinent here and need not be repeated. Thus while this court has the power to hear this claim, it will not exercies its discretion to decide this issue but will leave this question, insofar as it does not raise the issue posed in the first claim, to the state courts.

E. The fifth claim.

The fifth claim asserts that the coal contract between NPPD and ARCO upon which the DEC relied in approving the application for a construction permit contains a provision requiring sulfur analysis based on the sulfur content of a one-day supply of coal rather than for any two-hour period, as required by 40 CFR § 60.43(b). The motion to dismiss must be granted as to this claim, since it rests on a misstatement of the contents of the coal contract. The coal contract, exhibit D attached to the complaint in this case, is before the court for purposes of this motion by agreement of counsel. That contract, amended as of September 9, 1974, provides in its sixth whereas clause that NPPD will furnish daily analyses of sulfur content in accord with 40 CFR § 60.45(a)(2). This promise is in explicit conformity with 40 CFR § 60.45(a)(2). Moreover, the monitoring requirements are clearly applicable only to the post-construction stage of the power plant. There is nothing in this section of the coal contract that indicates that NPPD will not or will not be able to comply with the Clean Air Act Amendments of 1970 and the accompanying regulations regarding monitoring of sulfur dioxide emissions. Therefore, the face of the pleadings reveals no conflict between the parties. Thus the motions to dismiss as to this claim must be granted.

F. The sixth claim.

The sixth claim is that the DEC has acted arbitrarily and capriciously in granting the construction permit, in violation of § 84-917(6), R.R.S. Nebraska, 1943. This claim is also governed by the reasoning applied to the third claim. Therefore, this court, while it has the power to hear this claim, will not exercise its discretion to decide this issue but will leave the decision of this claim to the state courts.

G. The seventh claim.

The seventh claim is a dual claim, first, that the power plant as presently designed will cause significant deterioration of existing clean air around the power plant site, in violation of the Clean Air Act Amendments of 1970 and 40 CFR § 50.2(c); and second, that this is a clear error of law prohibited by § 84-917(6), R.R.S. Nebraska, 1943. The first aspect of this claim cannot be dismissed at this stage in the lawsuit on the basis of the defendants' briefs, since it states a federal question as to whether the granting of the construction permit is in violation of the Clean Air Act Amendments of 1970's prohibitions against degradation of existing clean air. See Sierra Club v Ruckelshaus, 344 F. Supp. 253 (U.S.D.C. D.C. 1972), aff'd sub nom Fri v Sierra Club, 412 U.S. 541, (1973). Moreover, it cannot be determined on the basis of evidence and briefs before this court on the motions to dismiss whether 40 CFR § 52.21 as proposed on August 27, 1974, is applicable to the power plant, since this court cannot now determine whether construction of the plant was commenced prior to six months after the promulgation of this regulation. In any event, the plaintiff raises its claim quite independently of this regulation, and at this point the merits of the plaintiff's claim are not before this court for determination. The second aspect of this claim is, under the reasoning applied to the third claim, best left to the state courts for a determination, should the plaintiff decide to pursue it as an independent claim.

[5 ELR 20440]

ABSTENTION

The only other issue raised by the defendants as a basis for dismissal is the claim that this court should abstain from exercising its jurisdiction over the complaint. The defendants urge abstention, since determination of the issues raised by the complaint would involve this federal court in unnecessary interference with state administrative agencies in an area which involves complex technical determinations for which the state has provided adequate procedures for review. The defendants further argue that Congressional policy would be better served by allowing state review procedures to function, because the Clean Air Act Amendments of 1970 were designed to leave the primary enforcement responsibility with the states.

The legislative history and purpose behind the Clean Air Act Amendments of 1970 is complex, but it need not be detailed here since an adequate treatment of it can be found in Train v Natural Resources Defense Council, Inc., U.S. , 43 U.S.L.W. 4467 (April 16, 1975). For purposes of this litigation the most pertinent portion of that recital is the indication in footnote 16 and the text accompanying it, U.S. , 43 U.S.L.W. at 4472, that the federal government has the primary role in setting emission limitations for categories of new stationary sources. Thus the interpretation of these limitations is properly a matter for consideration by the federal courts. The interpretation involved in this lawsuit goes one step beyond this, however, in that the plaintiff seeks a determination of the application of these limitations to preconstruction review rather than a determination of their application directly to functioning new stationary sources. Nonetheless, this is an insignificant difference, because the application of these standards at the preconstruction stage is a vital part of the federal parameters within which the state's primary responsibility for enforcement must be exercised. This case concerns, then, an interpretation of the federal guidelines within which the states must work. It is therefore desirable that such an interpretation be made in a federal court, where there is a greater chance through the appellate process for such guidelines to be given a uniform interpretation throughout the country than if the interpretation were left to the states. None of this is say, however, that the federal courts will not give proper deference to the technical expertise of those state officials charged with the primary enforcement responsibility under the Clean Air Act Amendments of 1970.

This court is convinced that this is not a proper case for abstention as to the remaining issues, for several reasons. First, as decided above, the issues remaining before this court concern interpretation of federal law. Second, the mere availability of state court review is not determinative. McNeese v Board of Education, 373 U.S. 668 (1963); McClellan v Carland, 217 U.S. 268 (1910). Third, no interpretation of state law would resolve the underlying conflict concerning the proper interpretation of federal statutory law. Fourth, the two cases primarily relied upon by the defendants are clearly distinguishable from the facts before the court. Burford v Sun Oil Co., 319 U.S. 315 (1943), concerned interpretation of a state regulatory scheme for production of oil conducted independent of any federal statutory parameters. Alabama Public Service Commission v Southern Railway Co., 341 U.S. 341 (1951), concerned a state regulatory scheme for abandonment of intrastate rail service, which the court held was essentially a local problem. In contrast the regulatory scheme before here is a joint federal-state program and the primary thrust of the complaint alleges error in interpreting the federal guidelines imposed by Congress on what is otherwise a matter of state responsibility. See Barrera v Wheeler, 441 F.2d 795 (C.A. 8th Cir. 1971), in which the court held that if the "nub of the controversy" centered on interpretation of a federal statute and no determination of state law would control the litigation or obviate the need to adjudicate the federal issues, then the federal court should not abstain from exercising its jurisdiction. This is just such a case. Therefore, this court will not abstain from exercising its jurisdiction to resolve those issues which remain before it.

THEREFORE, IT HEREBY IS ORDERED:

1. That the motions of the defendants to dismiss, filings 3, 4, 5, and 8, are denied as to the first, second and seventh claims of the plaintiff;

2. That the motions of the defendants to dismiss, filings 3, 4, 5 and 8, are granted as to the fifth claim of the plaintiff;

3. That the motions of the defendants to dismiss, filings 3, 4, 5 and 8, are denied as to the third, fourth and sixth claims, but the court will not exercise its discretion to hear these claims and thus they are dismissed by the court sua sponte; and

4. That the parties may submit briefs on the issue of whether a remedy by way of injunction is available in this case at any time before the trial on the merits, which will be scheduled by separate order after consultation with counsel for the parties.


5 ELR 20435 | Environmental Law Reporter | copyright © 1975 | All rights reserved