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Maine v. Thomas

Citation: 19 ELR 21046
No. No. 88-1983, 874 F.2d 883/29 ERC 1833/(1st Cir., 05/18/1989) Aff'd

The court holds that the Environmental Protection Agency's (EPA's) 1980 deferral of rulemaking addressing regional haze in national parks was final agency action under Clean Air Act (CAA) § 307 reviewable only in the D.C. Circuit, and thus the district court lacked subject matter jurisdiction over a CAA citizen suit brought by seven northeastern states and several environmental groups. Congress imposed a 1979 deadline on EPA for promulgating regulations that assure reasonable progress toward preventing impairment of visibility in federal parks and wilderness areas. EPA's 1980 visibility protection regulations addressed plume blight, but deferred rulemaking on regional haze. The court first holds that EPA's deferral of regional haze rulemaking is final agency action subject to review within 60 days of the date of the regulatory action and only in the D.C. Circuit. EPA's 1980 regulations represented the agency's assessment of what might reasonably be done in 1980, and EPA's decision to bifurcate the plume blight and regional haze issues went unchallenged, as did EPA's assessment of its capacity to understand the regional haze problem. Phase I was thus a final action when the regulations were promulgated. Since the Phase I regulations changed the status quo, the regulations were ripe for review when they were promulgated in 1980. Moreover, Congress has acknowledged that deferral of action may be final action within the meaning of Clean Air Act § 307. The court holds that the plume blight regulations and the promise of future rules and orders to deal with regional haze fully complied with EPA's nondiscretionary duty under the Clean Air Act to regulate visibility impairing pollution. The 1979 deadline required EPA to promulgate regulations to assure that reasonable progress would be made towards the goal of visibility protection. This EPA has done, and the next deadline is yet to arrive.

The court holds that the Phase I regulations were reviewable, since a court could have assessed whether the record adequately supported EPA's decisions and decided whether the promise of future regulations adequately harmonized with the Agency's nondiscretionary duty to progress toward the national goal. The court notes that although plaintiffs failed to challenge EPA's promise to address regional haze when the regulations were promulgated, they are not without a remedy. Compliance with the promise can be enforced. Plaintiffs may petition EPA for action on the basis of new evidence, and may yet obtain judicial review. The court holds that EPA's promise had the force of law when issued. In announcing Phase I, EPA restricted its own discretion by including language requiring it to propose and promulgate future phases when monitoring techniques, models, and scientific knowledge improve. Plaintiffs may present new evidence to demonstrate that those conditions are now satisfied, and thus trigger new EPA rulemaking. Such a petition for new rulemaking could only be rejected if EPA rescinded the part of Phase I binding it to rulemaking, but would require full rulemaking itself.

[The district court's decision appears at 19 ELR 20506.]

Counsel for Appellants
Gregory W. Sample, Ass't Attorney General
Office of the Attorney General
State House, Station No. 6, Augusta ME 04333
(207) 289-3661

David R. Wooley
Office of the Attorney General
Department of Law, State Capitol, Albany NY 12224
(518) 474-7330

Howard I. Fox
Sierra Club Legal Defense Fund, Inc.
1424 K St. NW, Ste. 600, Washington DC 20005
(202) 347-1770

Counsel for Defendants-Appellees
John C. Harrison, David C. Shilton
Office of Solicitor General
U.S. Department of Justice, Washington DC 20530
(202) 633-2035

Before SELYA, Circuit Judge, ALDRICH and COFFIN, Senior Circuit Judges.