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Espinosa v. Roswell Tower, Inc.

ELR Citation: 24 ELR 21359
Nos. No. 93-2238, 32 F.3d 491/39 ERC 1379/(10th Cir., 08/17/1994)

The court holds that New Mexico's environmental agency may not bring an enforcement action in federal court to seek federalpenalties under §113 of the Clean Air Act (CAA) for violations of its state implementation plan (SIP) after successfully prosecuting a state court enforcement action against the same defendants for the same violations. The court holds that the delegation of federal authority under CAA §112(d) is limited to state enforcement of the federally approved SIP through the state administrative and judicial process or, possibly, through federal citizen suits. Pursuant to the CAA's dual enforcement approach, the U.S. Environmental Protection Agency retains authority under §113 to enforce the SIP in federal court to ensure that federal standards are met. The CAA contains no language authorizing states to bring federal enforcement actions.

Counsel for Plaintiffs
Ripley B. Harwood, Ass't Attorney General
Attorney General's Office
Bataan Bldg., P.O. Box 1508, Santa Fe NM 87501
(505) 827-6000

Counsel for Defendants
Bruce S. Garber
Garber & Hallmark
200 W. Marcy St., Ste. 203, Santa Fe NM 87504
(505) 983-3233

Before Seymour and Daugherty,* JJ.