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Natural Resources Defense Council v. Gorsuch

Citation: 12 ELR 20942
No. No. 81-2208, 685 F.2d 718/17 ERC 1825/(D.C. Cir., 08/17/1982)

The court invalidates the Environmental Protection Agency's (EPA's) Clean Air Act regulations redefining the term "stationary source" from a single piece of process equipment to an entire plant so as to allow companies modifying plants in nonattainment areas to use the "bubble concept" to avoid new source review. The court first notes that its decision is governed by its earlier rulings, in Alabama Power Co. v. Costle, 10 ELR 20001, and ASARCO, Inc. v. EPA, 8 ELR 20164, 20277, which it construes to mean, respectively, that the bubble concept is mandatory for programs designed to maintain air quality, but is inappropriate for programs designed to improve air quality. It rules that the bubble concept may not be applied to the entire nonattainment program. Since the purpose of the nonattainment program is to upgrade the quality of air in areas that do not meet the national ambient air quality standards, the attempted application of the bubble concept is clearly barred. The court also invalidates EPA's deletion from the nonattainment area regulations of a reconstruction rule, which had mandated that a rebuilt facility undergo new source review if its cost was over half that of a comparable new facility. Since this EPA action was based on its redefinition of "source," it must also be vacated.

[The pleadings in this case are summarized at ELR PEND. LIT. 65732 and the decision is analyzed at 12 ELR 10089 — Ed.]

Counsel for Petitioner
David D. Doniger
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Counsel for Respondent
Jose R. Allen, Donald W. Stever Jr., Nancy B. Bryson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

David E. Menotti, Associate General Counsel; Lydia N. Wegman, Ass't General Counsel; Eric Smith
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Counsel for Intervenors
Patricia A. Barald, Theodore L. Garrett
Covington & Burling
P.O. Box 7566, Washington DC 20044
(202) 662-6000

Charles F. Lettow, Michael A. Wiegard
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 828-3000

Louis E. Tosi, William L. Patberg
Fuller & Henry
1200 Addison Plaza, P.O. Box 2088, Toledo OH 43603
(419) 255-8220

Before: MIKVA and GINSBURG, Circuit Judges, and WILLIAM J. JAMESON,* Senior United States District Judge for the District of Montana.