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Dow Chem., USA v. EPA

Citation: 10 ELR 20850
No. No. 80-197-A, 491 F. Supp. 428/(M.D. La., 06/03/1980)

The court holds that an action to enjoin the Environmental Protection Agency's (EPA's) publication of proposed new source performance standards for producers of organic solvent degreasers under §111 of the Clean Air Act may be filed only in the District of Columbia Circuit Court of Appeals. The plaintiffs had filed a motion for a preliminary injunction claiming that the substances in the degreasers are not included in the list of categories of stationary sources of pollution established under §111(b)(1)(A) of the Clean Air Act.The court first allows E.I. DuPont de Nemours & Co., Inc. to intervene under Fed. R. Civ. P. 24(b)(2), because the intervention will not delay the proceedings or prejudice the parties; furthermore, DuPont has a claim similar to that of the plaintiffs. The court rules, however, that it lacks jurisdiction to consider the merits of the case under §307(b)(1) of the Act, which provides that any "nationally applicable regulation, or final action taken" may be reviewed only in the District of Columbia Circuit Court of Appeals. EPA's action is indisputably applicable nationally since the performance standards will be of nationwide effect, and it is clearly final agency action even though the proposed regulations may be revised after comments are received by EPA.

Counsel for Plaintiffs
Theodore L. Garrett
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

J. Berry St. John Jr.
Liskow & Lewis
50th Floor, One Shell Sq., New Orleans, LA 70139
(504) 581-7979

Counsel for Defendant
Donald L. Beckner, U.S. Attorney; Shelly C. Zwick, E. Barton Conradi, Ass't U.S. Attorneys
Rm. 130, Fed. Bldg. & U.S. Cthse., 707 Florida St., Baton Rouge LA 70801
(504) 389-1443

Counsel for Intervenor
Joseph E. LeBlanc Jr., Richard A. Fraser III
Milling, Benson, Woodward, Hillyer, Pierson & Miller
11th Floor, Whitney Bldg., New Orleans LA 70130
(504) 581-3333