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Consolidation Coal Co. v. Costle

Citation: 10 ELR 20296
No. No. C-2-79-294, 483 F. Supp. 1003/(S.D. Ohio, 10/03/1979)

The court denies plaintiff's motion for a preliminary injunction requiring the Environmental Protection Agency (EPA) to expedite its review and revision of the air quality criteria for sulfur dioxide under §§ 108 and 109 of the Clean Air Act. Plaintiff, a company that mines and sells high-sulfur coal to Ohio utilities, argued that recent scientific studies show the criteria to be more stringent than necessary to protect public health. The court concludes that plaintiff is unlikely to succeed on the merits of its claim that the Administrator has abused his discretion by not expediting the revision process. While the evidence shows that the criteria document is outdated, the 1977 amendments to the Clean Air Act authorize the timetable chosen by the Agency by setting December 31, 1980 as the deadline for completion of the review process. The decision not to expedite was rationally based given the Agency's staff constraints and competing regulatory priorities and is additionally protected by the judicial deference due agencies in setting their agendas. Plaintiff is similarly unlikely to succeed on its additional claims of excessive delegation of legislative authority and deprivation of property without due process or just compensation.The court rules further that the speculative nexus between the ecohomic harm alleged by plaintiff and the relief requested and the congressional policy choice that public health be placed above the economic well-being of pullution sources confirms that a preliminary injunction is unwarranted.

Counsel for Plaintiff
Anthony J. Polito, Lawrence A. Demase, Ronald S. Cusano
Rose, Schmidt, Dixon, Halsey & Whyte
900 Oliver Bldg., Pittsburgh PA 15222
(412) 434-8600

Counsel for Defendants
Paul M. Kaplow, Stephen D. Ramsey
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2831

Matthew B. Van Hook
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-0796