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Pacific Legal Found. v. Costle

ELR Citation: 13 ELR 20744
Nos. No. Civil S-79-925 LKK, 18 ERC 1133/(E.D. Cal., 03/18/1981) On remand

In a challenge to the Environmental Protection Agency's (EPA's) response to California's failure to meet Clean Air Act deadlines, the court holds that it lacks jurisdiction under §307 of the Clean Air Act to review EPA's imposition of a new source construction ban and withdrawal of federal funds, and denies summary judgment to plaintiffs on the claim that EPA failed in its duty to draft a new state implementation plan (SIP) for California. In response to California's failure to adequately revise its SIP, EPA imposed a ban on construction of new sources and cut federal funds to the state. Plaintiffs claimed that (1) the construction ban was outside EPA's authority, (2) EPA's use of threats to coerce state action was unconstitutional, and (3) EPA failed in its duty to promulgate a new SIP for California. The court first holds that it does not have jurisdiction to hear plaintiffs' first claim. Defendants argue, and the court agrees, that the construction ban was in essence a SIP revision and thus sole jurisdiction for review lies with the court of appeals under §307 of the Act. Alternatively, the court rules that the construction ban was either a regulation or a final action and thus only reviewable by the court of appeals under §307. The court then rules that plaintiffs' second claim is moot because the challenged threat has been realized. As a final agency action, the withdrawal of federal funds can only be challenged in the court of appeals. However, the district court rules that it has jurisdiction to hear the third claim because §110 of the Act imposes a duty on EPA to promulgate SIPs for delinquent states and §304 of the Act gives district courts jurisdiction to hear claims that EPA failed to carry out a duty. The court concludes that EPA has a duty under §110 to act in response to a state's failure to revise its SIP. However, the court rules that EPA complied with §110 by promulgating a revision of the SIP through imposition of a construction ban.

Counsel for Plaintiffs
John Findley, Anthony Caso, Ronald Zumbrun
Pacific Legal Foundation
455 Capitol Mall, Suite 600, Sacramento CA 95814
(916) 444-0154

Counsel for Defendants
David Strommberg
Office of Regional Counsel
Environmental Protection Agency, 215 Fremont St., San Francisco CA 94105
(415) 928-0478