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Fairview Township v. EPA

ELR Citation: 15 ELR 20951
Nos. No. 84-5688, 773 F.2d 517/23 ERC 1460/(3d Cir., 09/23/1985) Rev'd

The court holds that a citizens' suit under the Federal Water Pollution Control Act (FWPCA) to compel the Administrator of the Environmental Protection Agency (EPA) to approve an application for a sewage treatment construction grant is not a suit for money damages, and that the EPA Administrator was not under a non-discretionary duty to review the grant application within 45 days, but that the suit may be brought under the Administrative Procedure Act (APA) and the federal question statute. The court first rules that the district court's characterization of the action as one for money damages was incorrect and the suit should not have been dismissed for lack of jurisdiction on that ground. Appellants are not asking for reimbursement for a wrongful act done in the past, but for funds which EPA allegedly controlled but refused to provide. The cases relied on by the district court can be distinguished in that in those cases plaintiffs had incurred costs or suffered injuries as a result of the discharge of pollutants. The court then rules that the Administrator was not under a non-discretionary duty to review Northern York's grant application within 45 days of receipt since the state had not assumed all delegable tasks under the construction grant program. The 45-day requirement comes into play when the state has been delegated sufficient authority to administer the construction grant program. Although neither the statute itself nor the legislative history explains what constitutes "sufficient authority," EPA's interpretation that the section would not make sense unless the state had been delegated all delegable functions is reasonable.

The court then rules that the district court did not have jurisdiction over the suit as an action in mandamus. Mandamus is only appropriate if the applicant does not have an adequate alternative remedy. As the court next rules, the APA provides that remedy. The suit is not barred by the Tucker Act as a money claim because appellants will not receive the federal money even if they prevail; a conclusion by the district court that EPA acted arbitrarily and capriciously will set aside EPA's disapproval of the application, but will not automatically cause the application to be approved. Lastly, the court holds that the district court has jurisdiction under the federal question statute. Construction grants must meet the requirements of the National Environmental Policy Act, and the determination of whether or not an environmental impact statement is required for the project is not a task that can be delegated to the state agency.

[The lower court opinion appears at 15 ELR 20028.]

Counsel for Appellants
John E. Childe Jr.
Dice & Childe
1721 N. Front St., Harrisburg PA 17102
(717) 238-4256

Counsel for Appellees
F. Henry Habicht II, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Before Higginbotham and Cohill,* JJ.