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Connecticut v. EPA

ELR Citation: 11 ELR 20924
Nos. No. 80-4176, 656 F.2d 902/16 ERC 1467/(2d Cir., 08/04/1981)

The Second Circuit Court of Appeals holds that the Environmental Protection Agency (EPA) properly approved a review of New York's state implementation plan (SIP) under the Clean Air Act and rejects challenges by the States of Connecticut and New Jersey regarding the interstate impacts of the revision. A New York utility applied to the state for permission to burn high-sulfur oil in three of its generating plants for one year. In approving the necessary SIP revision, EPA did not act on claimants' petitions under §126 of the Act, which authorizes states to seek an EPA finding that the Act's interstate pollution provisions are being violated. The court first rejects New York's contention that the doctrine of primary jurisdiction requires dismissal of the case inasmuch as the §126 petitions are pending. Nothing in the Act indicates that exhaustion of administrative remedies under §126 is a condition precedent to judicial review of the approval of a SIP revision. The court also finds that EPA was not required to defer a final decision on the SIP revision pending completion of Agency action on the §126 petitions. Section 126 is primarily a tool to resolve interstate pollution disputes in situations where a SIP revision is not at issue, whereas §110 addresses the same type of dispute within the context of a SIP revision. The court also holds that EPA did not err in failing to address the aggregate impacts that long-term use of high-sulfur fuel would have upon air quality in downwind states. The revision is limited to one year and thus long-term effects were not required to be considered by the Agency. Petitioners' arguments that New York can avoid any inquiry into the long-term effects by enacting a series of short-term revisions is unfounded. A series of short-term revisions undoubtedly would prompt the Agency to consider such effects. Finally, the court upholds EPA failure to consider the potential impact of the revision upon petitioners' self-imposed air quality standards, which are stricter than those established by the federal government. While the statute allows states to adopt stricter standards, it does not require neighboring states to respect these standards or to mold their SIPs to reflect them. The court does not address whether EPA may consider stricter state laws when confronted by a §126 petition.

Counsel for Petitioners
Kenneth Tedford; Carl R. Ajello, Attorney General; Alan M. Kosloff, Ass't Attorney General
Capitol Annex, 30 Trinity St., Hartford CT 06115
(203) 566-2026

John J. Degnan, Attorney General; Stephen Skillman, Ass't Attorney General; Richard M. Hluchan, Deputy Attorney General
2d Floor, State House Annex, Trenton NJ 08625
(609) 292-4925

Counsel for Respondents
Michele Corash, General Counsel; Bruce Diamond
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Angus C. Macbeth, Acting Ass't Attorney General; Donald W. Stever Jr., Diane L. Donley
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Counsel for Intervenor Consolidated Edison
Garrett E. Austin, Thomas J. Farelly
Consolidated Edison Co. of New York
4 Irving Pl., New York NY 10003
(212) 460-4600

Counsel for Intervenor State of New York
Shirley A. Siegel, Solicitor General; Marcia J. Cleveland, Mary L. Lyndon, Ass't Attorneys General; Robert Abrams, Attorney General
2 World Trade Center, New York NY 10047
(212) 488-3320

Joined by Mansfield and Kearse, JJ.