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PPG Indus. v. Harrison

Citation: 9 ELR 20086
No. No. 77-2989, 587 F.2d 237/12 ERC 1641/(5th Cir., 01/08/1979)

The Fifth Circuit Court of Appeals dismisses for lack of jurisdiction a petition for review of an Environmental Protection Agency (EPA) order subjecting the oil and waste heat powered cogeneration boilers of a recently constructed power plant to the new source performance standards for fossil fuel-fired steam generating units. Although disputing this court's jurisdiction, petitioner filed the petition for review as a protective measure while concurrently challenging EPA's action in federal district court. The courtof appeals agrees with petitioner's contention that jurisdiction to review EPA's action lies in the district court, ruling that the 1977 amendments to § 307(b)(1) of the Clean Air Act, which transferred jurisdiction over locally applicable EPA final actions under the Act to the regional courts of appeals, were not intended to cover all final actions of the Agency. Noting that the legislative history makes no mention of any such massive shift of jurisdiction, the court assumes that Congress did not intend decisions such as this applying or interpreting agency regulations to be reviewed in the courts of appeals, which lack fact-finding mechanisms available to the district courts. The court therefore determines that in light of the difficulties involved in reviewing the challenged agency at the appellate level, it cannot hold that review lies in the courts of appeals without a more explicit congressional directive.

Counsel for Petitioner
Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 223-2151

Counsel for Respondents
Michael P. Carlton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2834

Bethami Auerbach
Office of General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Before RONEY, TJOFLAT and HILL, Circuit Judges.