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Highland Park, City of v. Train

Citation: 5 ELR 20408
No. Nos. 74-1271, 75-1006, 519 F.2d 681/7 ERC 2073/(7th Cir., 06/10/1975) Aff'd

The court affirms dismissal of a suit seeking to compel the EPA Administrator to promulgate indirect source and significant deterioration regulations under the Clean Air Amendments of 1970, and to enjoin further construction of a state highway expansion project and an adjacent shopping center in the interim and until NEPA's requirements are fulfilled. Following commencement of this action, the Administrator did promulgate indirect source regulations, but they are not reviewable in this type of suit. The regulations incorporate federal standards into inadequate state implementation plans, and the Administrator was therefore in effect promulgating implementation plans where state plans were deficient within § 110(e). The sole method of reviewing such action is by a petition for review in the court of appeals under § 307(b)(1). The regulations' exemption of any facility on which construction was started before January 1, 1975 was not, as asserted, a failure to promulgate regulations with respect to such facilities, but rather an integral part of the regulations. As to the Administrator's failure, despite another court's order, to promulgate significant deterioration regulations covering four of the six identified air pollutants, the district court lacked jurisdiction over the claim by reason of plaintiff's failure to give the Administrator 60 days notice prior to commencing this suit, as required by § 304(a). Mandatory relief is not available under 28 U.S.C. §§ 1361 or 1331, or the Administrative Procedure Act, 5 U.S.C. §§ 702-05, for the remedy provided by § 304 is not adequate. Court disagrees with the contrary conclusion of the D.C. Circuit in NRDC v. Train, 5 ELR 20045 (Dec. 5, 1974), a Federal Water Pollution Control Act case. Nor can plaintiffs' recently-filed petition for review be used to attack the Administrator's failure to promulgate regulations. As to the NEPA claim, the state highway project, conceived long before passage of NEPA, is not a federal action despite formal designation of segments of the highway as federal-aid secondary systems, since no federal funds have ever been supplied, approved, or even applied for. A contiguous village's zoning approval of the shopping center did not deprive plaintiff municipality's citizens of equal protection, for the only harm alleged was the kind which invariably results from establishment of territorial boundaries. District court judgment of dismissal affirmed; petition for review dismissed.

For counsel, see 4 ELR 20677.