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Oljato Chapter of the Navajo Tribe v. Train

Citation: 5 ELR 20481
No. Nos. 74-1525, -1587, 515 F.2d 654/7 ERC 2190/(D.C. Cir., 07/07/1975)

This action was brought under § 304 of the Clean Air Act to challenge the EPA Administrator's refusal to revise standards for new coal-fired power plants previously promulgated under § 111 of the Act. The district court properly dismissed for lack of jurisdiction, since the plaintiffs are actually attacking the validity of a performance standard, and the exclusive form for an action seeking revision of any performance standard is a direct petition to this court of appeals under § 307 of the Act. Acknowledging plaintiff's distinction between direct judicial review of a rule and the review, here sought, of the Administrator's refusal to modify a rule on request, the court nonetheless concludes that both types fall exclusively within § 307. Even by its own terms, § 304 does not apply, for it is limited to cases of failure to perform a nondiscretionary duty and so does not extend to the Administrator's alleged abuse of discretion in refusing to revise the standard at issue herein. As to § 10 of the Administrative Procedure Act, this circuit does hold it to be an independent source of jurisdiction, but only where necessary due to lack of other adequate remedy in a court; here, § 307 supplies an adequate alternative remedy. For these reasons, the court affirms dismissal of the complaint. As regards the § 307 petition recently filed by the plaintiffs, the court is hampered by lack of an adequate administrative record to review. Therefore, although not specifically obliged to do so by the Act, the court exercises its inherent powers to assure informed decision making by requiring, as a prerequisite to exercise of its jurisdiction under § 307, presentation to the Administrator of any new information thought to justify revision of a standard; similarly, EPA will be required to respond to such petitions and, in cases of denial, to state its reasons for decision. Union Electric Co. v. EPA, No. 74-1614 (8th Cir. Mar. 27, 1975), followed. Since the letters exchanged between plaintiffs and EPA respecting the instant challenge do not meet these standards, the petition is dismissed without prejudice to its subsequent refiling. The court cautions the Administrator against relying too heavily, in evaluating "new information" petitions for revision, on the language in § 307 that requires them to be "based solely" on information arising more than 30 days after initial promulgation of a standard.

Counsel for Plaintiffs-Petitioners
Joseph J. Brecher
Native American Rights Fund
1506 Broadway
Boulder, Colo. 80302

Counsel for Defendants-Respondents
Wallace H. Johnson Asst. Attorney General
Robert L. Klarquist
Department of Justice
Washington, D.C.20530

Jeffrey O. Cerar
Environmental Protection Agency
Washington, D.C. 20460