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California v. Kleppe

Citation: 9 ELR 20661
No. Nos. 78-2363 et al., 604 F.2d 1187/13 ERC 1577/(9th Cir., 08/20/1979)

The Ninth Circuit Court of Appeals rules that jurisdiction to review the application of Clean Air Act regulations to activities on the outer continental shelf (OCS) lies in the district court under §23 of the Outer Continental Shelf Lands Act (OCSLA), ELR STAT. & REG. 42466, rather than in the courts of appeals under §307 of the Clean Air Act (CAA), ELR STAT. & REG. 42257. In April 1978, the Environmental Protection Agency (EPA) published a notice that Exxon's proposed floating offshore storage and treatment facility for the company's drilling platform on the OCS was subject to the Agency's CAA regulatory authority. In September 1978, Congress amended the OCSLA, adding a new §5, ELR STAT. & REG. 42457, that directed the Secretary of the Interior to promulgate CAA regulations for activities on the OCS. The court notes that this provision gives no suggestion that such activity is to be shared and emphasizes that the simultaneous exercise of jurisdiction with EPA would frustrate the Secretary's authority. After a lengthy review of the OCSLA and its legislative history, the court finds that Congress did not make its intent clear with respect to EPA's administrative authority over the OCS when it amended the Act except in its explicit statutory directive that the Secretary of the Interior was to assume this responsibility. Because concurrent EPA authority would frustrate this explicit grant, Congress could not have intended that the jurisdictional grants of the OCSLA and the CAA stand together. Therefore, §307 of the CAA can not apply, §23 of the OCSLA controls, and jurisdiction properly lies in the district court. The appealed cases are remanded, and the petitions for review of the EPA action are dismissed.

For an earlier decision of the district court holding thatt the issue of EPA's assertion of regulatory jurisdiction over the OCS was not ripe for adjudication, but if it were, jurisdiction would lie in the circuit courts of appeals under the CAA, see California v. Kleppe, 8 ELR 20359 (C.D. Cal. Apr. 6, 1978).

Counsel for State of California Plaintiffs-Appellees
Donatas Januta, Dep. Attorney General
Room 6000, 350 McAllister St., San Francisco CA 94102
(415) 557-0269

Counsel for Federal Defendants-Respondents
Patrick J. Cafferty
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3767

Counsel for Corporate Defendants-Appellants-Petitioners
C. Douglas Floyd
Pillsbury, Madison & Sutro
Standard Oil Bldg., 225 Bush St., San Francisco CA 94104
(415) 983-1000

Philip K. Verleger
McCutchen, Black, Verleger & Shea
30th Floor, 3435 Wilshire Blvd., Los Angeles CA 90010
(213) 381-3411

Before BROWNING and WALLACE, Circuit Judges, and BLUMENFELD,* District Judge.