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Disimone v. Browner

ELR Citation: 27 ELR 21490
Nos. 96-70974, 121 F.3d 1262/(9th Cir., 07/31/1997)

The court holds that the U.S. Environmental Protection Agency (EPA) violated a court order when it withdrew a federal implementation plan (FIP) and approved a state implementation plan (SIP) for Arizona; thus, EPA must disapprove the Arizona SIP and reinstate the withdrawn FIP. The court first holds that EPA violated the law of the case, and that no exceptions to the doctrine apply. The fact that different citizen petitioners brought the present suit need not preclude application of the law of the case doctrine, because both suits were brought against the same agency, about the same issue, and on behalf of the same citizen population. Next, the court holds that EPA is collaterally estopped from claiming its action was required by the Clean Air Act (CAA) as amended in 1990. The issue in this case is identical to the issue presented in EPA's earlier motion to recall the court's mandate that EPA act in accordance with its own guidelines and statutory duties as they existed before the CAA was amended. Further, the court's determination that the intervening change in the CAA did not warrant recalling its mandate against EPA was critical and necessary to the court order. And no potentially unfair circumstances exist that preclude the application of offensive collateral estoppel against EPA.

Counsel for Petitioners
David S. Baron, Ass't Dir.
Arizona Center for Law in the Public Interest
1840 E. River Rd., Ste. 207, Tucson AZ 85718
(520) 529-1798

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