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Delaware Valley Citizens' Council for Clean Air v. Davis

ELR Citation: 21 ELR 21055
Nos. Nos. 90-1309, -1410, 932 F.2d 256/33 ERC 1001/(3d Cir., 05/06/1991)

The court holds that the district court lacked jurisdiction under Clean Air Act §304 over three counts in a citizen suit charging that the ozone state implementation plan (SIP) submitted by Pennsylvania violated the Clean Air Act, but the district court improperly dismissed a fourth count for failure to state a claim. The three counts alleged that Pennsylvania violated its statutory duty to implement a motor vehicle emission and inspection maintenance program in nonattainment areas; that the state violated its duty to revise the SIP to take advantage of improved methods of attaining the standards; and that the state violated its statutory duty to attain the ozone standard in various areas by various dates and then failed to adopt additional enforceable measures. The court holds that these counts, which are based on the contents of an approved SIP, should have been brought under Clean Air Act §307(b)(1) in the courts of appeals. The court rules that citizens who claim that Environmental Protection Agency (EPA) emission standards are inadequate must petition the appropriate court of appeals under §307, while citizens who merely wish to enforce the emission standards may sue in district court under §304. The three counts in this case rest on direct violations of Clean Air Act §§110(a)(2)(H)(i) and 202(b)(11)(B), not on violations of any version of the SIP involved in this case. Neither of these sections deals with emission standards or limitations; they outline what a SIP must contain to get EPA approval. However, the court holds that the district court improperly dismissed a count alleging that Pennsylvania had violated the SIP by failing to take steps to decrease ozone emissions in Philadelphia before March 15, 1985. The court cannot eliminate the possibility that the SIP requires Pennsylvania to undertake additional measures to improve air quality in the Philadelphia area.

Counsel for Appellants
Jerome Balter
Public Interest Law Center of Philadelphia
125 S. Ninth St., Ste. 700, Philadelphia PA 19107
(215) 627-7100

Ellen J. Durkee, W. Christian Schumann, David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellees
Martha E. Blasberg
Department of Environmental Resources
1314 Chestnut St., Ste. 1200, Philadelphia PA 19107
(215) 832-6300