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Kennecott Copper Corp. v. Costle

Citation: 8 ELR 20373
No. No. 77-1359, 572 F.2d 1349/11 ERC 1585/(9th Cir., 04/05/1978) Rev'd

The Ninth Circuit reverse a lower court judgment ordering the Environmental Protection Agency (EPA) Administrator to approve a state implementation plan revision and variance relating to constant sulfur dioxide emission controls for a smelter The district court lacked jurisdiction to entertain this action under § 304(a)(2) of the Clean Air Act because the Administrator has discretion under § 110 to approve or disapprove the state-granted revision and variance, and the suit therefore does not allege the violation of a nondiscretionary duty. This conclusion is reinforced by an analysis of the case law on the nondiscretionary duty requirement of § 304. The district court's reliance on the Administrative Procedure Act and the mandamus statute as additional bases for jurisdiction is likewise unavailing. The court rules that even if the federal question statute were to provide a jurisdictional basis for the district court's decision, that judgment would still require reversal as a premature interference with the administrative process. The same concern also leads the court to refrain from deciding whether the suit in district court can be treated as an original petition for review under § 307.

A partial dissent contends that EPA in fact had a nondiscretionary duty to approve the state revision and variance because the agency conceded that they would meet national ambient standards and because considerations relating to economic feasibilty of the plan were deemed by the agency to be irrelevant to its approval or disapproval decision.

Counsel for Plaintiff-Appellee
Jon R. Collins
Lionel, Sawyer & Collins
300 E. Fourth St., Suite 1700, Las Vegas NV 89101
(702) 385-2188

Alfred V. J. Prather
Prather, Seeger, Doolittle, Farmer & Ewing
1101 16th St. NW, Washington DC 20036
(202) 296-0500

Counsel for Defendant-Appellant
Edmund B. Clark, John E. Varnum, Kathryn Oberly
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2738

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

Before GOODWIN and SNEED, Circuit Judges, and HAUK,* District Judge.