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Delaware Valley Citizens' Council for Clean Air v. Pennsylvania

ELR Citation: 12 ELR 20533
Nos. No. 82-1104, 674 F.2d 987/17 ERC 1692/(3d Cir., 04/06/1982) Reh'g en banc denied

The court denies a petition for rehearing en banc of its order granting the Commonwealth's motion for a stay of a district court order. The district court, 12 ELR 20191, found the Commonwealth in contempt for failure to comply with a consent decree to establish an automobile inspection and maintenance program. As a sanction, the district court ordered the United States Department of Transportation to withhold federal highway funds from Pennsylvania until it complied with the decree. The district court refused to grant a stay, 11 ELR 20956, but the Third Circuit granted both a stay and a request for expedited consideration. It now denies the petition for rehearing en banc, finding that the hardship to citizens of Pennsylvania if federal highway funding is ended overrides the hardship to petitioners in waiting a short time period pending consideration on the merits.

A dissent would grant the motion for rehearing because it finds that the Commonwealth cannot show a likelihood of success on the merits and thus has not met the standards for granting a stay and the federal government might disarm the district judge by disbursing the entire allotment of highway funds in the interim.

Counsel are listed at 12 ELR 20191.


Judge Hunter joins in this statement.