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McCarthy v. Thomas

Citation: 17 ELR 21214
No. No. CIV 85-344 TUC WDB, (D. Ariz., 08/10/1987)

The court rules that the Environmental Protection Agency (EPA) has discretion under Clean Air Act § 176(a) to decline to initiate proceedings to terminate federal highway funds in the event of a state's failure to submit an adequate state implementation plan (SIP) if EPA finds that the state is making reasonable efforts to submit an adequate plan, and that when EPA rejects a SIP as inadequate, it is required under § 110(c) to begin preparation of a federal plan, even if the state is also working on a plan. The court first holds, on the basis of the legislative history, that it is appropriate to defer to EPA's and the Department of Transportation's joint memorandum interpreting § 176(a)'s requirements for termination of federal funds, which concluded that a state must both fail to submit an adequate plan and fail to make reasonable efforts to do so for funding to be terminated. The court holds that it does not have subject matter jurisdiction under § 304 of the Clean Air Act to review EPA's discretionary determination that Arizona is making reasonable efforts, nor does it have jurisdiction under the Mandamus Act to review a discretionary agency action. The court holds, however, that EPA is not relieved of its duty under § 110(c) to promulgate its own attainment plan within six months of rejecting the state plan, even if Arizona may soon adopt an adequate SIP.

[The complaint and plaintiff's summary judgment motion are digested at ELR PEND. LIT. 65859 and 65944.]

Counsel for Plaintiffs
David S. Baron
Arizona Center for Law in the Public Interest
3208 E. Fort Lowell, Suite 106, Tucson AZ 85716
(602) 327-9547

Counsel for Defendants
David W. Zugschwerdt
Land and Natural Resources Division
Environmental Defense Section, P.O. Box 23986, Washington DC 20026-3986
(202) 633-2686

James R. Redpath, Ass't Attorney General
Environmental Protection Unit
Office of the Attorney General, 1275 W. Washington, Phoenix AZ 85007
(602) 255-4266