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Getty Oil Co. v. Ruckelshaus

Citation: 2 ELR 20393
No. No. 4366, 342 F. Supp. 1006/4 ERC 1141/(D. Del., 05/10/1972)

Plaintiff, a producer of fuel oil and a consumer of electric power, has standing to challenge an Environmental Protection Agency (EPA) order issued under the Clean Air Act, which requires a power company to cease burning plaintiff's fuel because it contains more sulphur than is permitted by Delaware's Implementation Plan. The economic loss plaintiff would suffer should the power company comply with the Plan makes the plaintiff an aggrieved person within the meaning of the Administrative Procedure Act. Plaintiff's request for preliminary relief (both stay and injunction) from EPA's order is denied because plaintiff has not demonstrated satisfactorily the likelihood of its success on the merits. The Clean air Act limits judicial review of EPA's approval of state implementation plans to proceedings initiated by petition in federal courts of appeal. Preenforcement review of an enforcement order, by suits such as this one, is not barred by the statute, but the issues which are justiciable in such proceedings are limited to those which may be raised in enforcement proceedings. All plaintiff's claims — including the claim that EPA's issuance of the order violated the National Environmental Policy Act — should have been made in an appeal of EPA's approval of Delaware's Implementation Plan. These claims either challenge the reasonableness of the Plan, or, as with the NEPA claim, assume discretionary authority in EPA to alter the Plan which the agency does not possess at the enforcement phase in the administration of the statute. Denial of interim relief to plaintiff does not constitute a denial of due process even though it will incur the economic burdens resulting from enforcement prior to judicial review of its claims.

Counsel for Plaintiff
Charles F. Richards, Jr.
Robert H. Richads, III
David S. Swayze
4072 duPont Building
Wilmington, Delaware 19899

Counsel for Defendants
F.L. Peter Stone U.S. Attorney
U.S. Courthouse
Wilmington, Delaware 19899

Daniel J. Snyder
Jacob Hart
Marc Suffern
U.S. Environmental Protection Agency
Federal Office Building
Philadelphia, Pennsylvania

Lee Stewart Attorney
Department of Justice
Washington, D.C. 20530