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Pacific Legal Found. v. Costle

ELR Citation: 10 ELR 20719
Nos. No. 80-4108, 627 F.2d 917/15 ERC 1001/(9th Cir., 08/12/1980)

The Ninth Circuit Court of Appeals affirms the denial of a motion for a preliminary injunction to restrain the Environmental Protection Agency (EPA) from enforcing a ban on certain construction in California and from withholding federal funds from the state. The 1977 amendments to the Clean Air Act required the states to revise their state implementation plans (SIPs) and to obtain EPA approval thereof by June 30, 1979. States failing to meet the deadline are subject to a prohibition on the construction or modification of new stationary sources in nonattainment areas, as well as a freeze on the disbursement of certain funds by the Agency. Following EPA's commencement of these sanctions, appellants brought suit, arguing that the Agency was required by §110 of the Act to promulgate its own SIP for the state and that the statutory scheme was unconstitutional. The court of appeals affirms the district court's ruling that it lacked jurisdiction over the statutory claim since §304(a) gives the district courts jurisdiction to review only an alleged failure by the EPA Administrator to perform a non-discretionary duty. The construction ban and funding cutoff were not such actions, and thus are reviewable only in the courts of appeals under §307(b)(1). As to appellants' claim that the statutory penalties were unduly coercive and thus unconstitutional, the court affirms the lower court's denial of the motion. Although the court had federal question jurisdiction over the claim under 28 U.S.C. §1331, it was within the court's discretion to conclude that the lack of merit in the constitutional claim, combined with the balance of hardships presented by the facts, did not warrant preliminary injunctive relief.

Counsel for Appellants
Ronald A. Zumbrun, John H. Finley, Anthony T. Caso
Pacific Legal Foundation
455 Capitol Mall, Suite600, Sacramento CA 95814
(916) 444-0154

Counsel for Appellees
Barbara H. Brandon, Jose R. Allen, Joshua I. Schwartz; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5287

Violet Lee
Office of the Regional Counsel
Environmental Protection Agency, Region IX
215 Fremont St., San Francisco CA 94105
(415) 556-2067

Herman Sillas Jr., U.S. Attorney; Solomon Robinson, Ass't U.S. Attorney
2058 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 440-2331

Before SNEED and POOLE, Circuit Judges, and ZIRPOLI*, District Judge.