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Farmers Union Cent. Exch., Inc. v. Thomas

ELR Citation: 20 ELR 20013
Nos. No. 88-3609, 881 F.2d 757/30 ERC 1504/(9th Cir., 08/04/1989)

The court holds that the district court lacks jurisdiction under the citizen suit provision of the Clean Air Act, §304(a), over a fuel refiner's claim that the Environmental Protection Agency (EPA) failed to perform a nondiscretionary duty in refusing to recognize a lead credit purchase. The court first holds that the expiration of the lead credit banking program in 1987 does not render the case moot. The potential for an enforcement action and the possibility that the district court's order will be affirmed qualify the dispute as a case or controversy. The court next holds that EPA's alleged failure to adhere to its own regulations in refusing to recognize the refiner's unconfirmed lead credit purchase report did not constitute a violation of a nondiscretionary duty. EPA could exercise two options to serve its stated goal of maintaining the appropriate level of lead in leaded gasoline. First, EPA could assess penalties against the refiner's lead credit purchaser and require a lead credit sale from a source other than the refiner to correct the purchaser's deficiency. Second, EPA could refuse to recognize the refiner's reported purchase and leave any dispute between the refiner and the purchaser to those parties. Absent a provision requiring EPA to adopt one course of action over the other, EPA's choice represents an exercise of discretion, not a failure to exercise a nondiscretionary duty. Additionally, the court holds that the district court based its jurisdiction on §304 alone and has no jurisdiction over the refiner's takings claim.

Counsel for Defendant-Appellant
Michael P. Healy
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611 Ben Franklin Station, Washington DC 20044
(202) 633-2577

Counsel for Plaintiff-Appellee
Pamela J. White, Sherwood B. Smith
Ober, Kaler, Grimes & Shriver
710 Ring Bldg., 1200 18th St. NW, Washington DC 20036
(202) 331-9100