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Conservation Law Found. v. Busey

ELR Citation: 26 ELR 20959
Nos. Nos. 92-1335 et al., 79 F.3d 1250/42 ERC 1385/(1st Cir., 04/02/1996) Aff'd in part, rev'd in part

The court affirms a district court dismissal of a Clean Air Act (CAA) §304 citizen suit involving the redevelopment of Pease Air Force base in New Hampshire. Plaintiffs in this action challenged the U.S. Air Force's decision to lease property at the base to a state agency created to acquire certain parcels of land within the base and to develop and implement a plan for their reuse. Plaintiffs claimed that the Air Force and the U.S. Environmental Protection Agency (EPA) violated CAA §176(c), the National Environmental Policy Act (NEPA), and §120(h)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that the district court lacked subject matter jurisdiction over the CAA citizen suit. Jurisdiction does not extend to violations of the §176 conformity provision, because the provision is not a schedule or timetable of compliance, an emission limitation, a standard of performance, or an emission standard. The court also holds that judicial review is not available under the Administrative Procedure Act, because the plaintiffs' claims concern action EPA takes as a federal government agency, rather than as the administrator or enforcer of the CAA. The court next holds that the CAA does not require the information on which a §176 conformity determination is based to have been subject to review, analysis, or public comment pursuant to NEPA. Therefore, EPA's alleged NEPA violation in assembling the air quality analyses did not affect the merits of the conformity determination. The court holds that even though EPA did not comply with NEPA regarding those air quality analyses, the Agency did make a conformity determination. EPA's actions sufficiently reflect that it considered the project's potential impact on air quality in light of the conformity provision and, based on the commitments made in a memorandum of understanding between the federal and state governments, determined that the project could be carried out in conformity with applicable air quality standards. The court next holds that EPA's determination, and the determinations made by the Air Force and the Federal Aviation Administration, complied with the conformity provision. The agencies adequately considered evidence of conformity criteria violations, and the mitigation measures meet the conformity provision's criteria. Next the court reverses the district court's ruling that the government's lease of portions of the base before completing a remedial action violated CERCLA §120(h). A 1996 amendment of that section validates the Air Force's lease to the redevelopment agency under CERCLA. The amendment states that the requirements of a covenant warranting completion of all necessary remedial action "shall not apply in any case in which the transfer of the property occurs . . . by means of a lease . . . ." Finally, the court holds that the district court did not abuse its discretion by denying plaintiffs injunctive relief. The public and private commitments to this project had already been made by the time the plaintiffs sought injunctive relief. If harm was done, it largely had been done by plaintiffs' failure to timely seek injunctive relief, not by the court's denial of it.

Counsel for Petitioner
Lewis M. Milford
Conservation Law Foundation
21 E. State St., Montpelier VT 05602
(802) 223-5992

Counsel for Respondent
Jeffrey P. Kehne
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Selya and Cyr, JJ.