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Sierra Club v. Indiana-Kentucky Elec. Corp.

ELR Citation: 13 ELR 20817
Nos. Nos. 81-1822, -2173, 716 F.2d 1145/19 ERC 1721/(7th Cir., 08/30/1983) Aff'd

The court rules that an Indiana state implementation plan (SIP) provision approved by the Environmental Protection Agency (EPA), but subsequently invalidated by state courts on procedural grounds, is unenforceable. Initially, the court holds that the contested rule, APC-13, governing sulfur dioxide emissions, was not adopted in accordance with state procedural requirements and thus was not a valid SIP submission to EPA. The court next rules that the Clean Air Act system of state and federal partnership requires invalidation of SIP provisions found procedurally wanting by state courts. Federal courts have strongly encouraged plaintiffs to bring their challenges to state procedures in state courts. The only way to give effect to the intended meaningful role of the state courts is for the federal courts to give no effect to provisions struck down by the state courts. The court also rules that Clean Air Act §307(b)(1), which states that an approved SIP may only be invalidated in the federal courts of appeals, applies only to provisions that have survived all state court challenges. Further, the state court action on APC-13 was not a SIP modification, which would require EPA approval, but rather a ruling that part of the SIP never existed. The court next holds that APC-13 may not stay in effect until a substitute plan is promulgated. The only remedy provided by the Act for the failure of a state to submit an adequate plan is federal promulgation of a substitute plan or provision. The court thus affirms the dismissal of appellant's citizen suit to enforce APC-13.

Counsel for Appellant
Frederick S. Middleton III
Sierra Club Legal Defense Fund, Inc.
Suite 600, 1424 K St. NW, Washington DC 20005
(202) 347-1770

Counsel for Appellee
Bryant G. Tabler
Barnes & Thornburg
1313 Merchants Bank Bldg., Indianapolis IN 46204
(317) 638-1313

Counsel for Amicus Curiae
James Bieke
Shea & Gardner
1800 Massachusetts Ave. NW, Washington DC 20036
(202) 828-2000

Before WOOD, Circuit Judge, FAIRCHILD, Senior Circuit Judge, and ROSZKOWSKI, District Judge.*