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Southwestern Pa. Growth Alliance v. Browner

ELR Citation: 28 ELR 21251
Nos. 96-3761, 144 F.3d 984/46 ERC 1609/(6th Cir., 05/26/1998)

The court affirms the U.S. Environmental Protection Agency's (EPA's) decision to redesignate the Cleveland-Akron-Lorain, Ohio, area as a Clean Air Act (CAA) attainment area for ozone. The court first holds that an organization of manufacturers and local governments from the Pittsburgh-Beaver Valley, Pennsylvania, area asserts injuries that provide standing. The organization argues that it is injured by EPA's process of dealing with the regional effect of the transport of ozone from Ohio into Pennsylvania and that this appeal is the only way it can attack the separation of the attainment decision from the regional transport decision. In addition, the economic disadvantage that south western Pennsylvania would suffer if EPA incorrectly redesignated the Cleveland-Akron-Lorain area as attainment is an alleged injury-in-fact that is directly caused by EPA's decision and would be redressed if the decision were overturned.

The court next holds that EPA's approach to the regional transport problem is reasonable and not arbitrary and capricious. The court rejects the organization's argument that the Ohio state implementation plan (SIP) should not have been approved because it did not contain a provision prohibiting sources of pollution in one state from emitting pollutants in amounts that contribute significantly to nonattainment in another state. Congress left to EPA the method of determining whether interstate transport is a problem, and EPA has formed an Ozone Transport Assessment Group, which is using a regional approach to consider the ozone transport problem. In addition, EPA reasonably relied on its 1980 approval of an Ohio SIP that complied with the interstate transport requirement. EPA has consistently interpreted CAA §307(d)(3)(E) as permitting the Agency to rely on prior approvals of SIPs when reviewing redesignation decisions. Moreover, the CAA's 1990 amendments did not change the standard for interstate transport, and, thus, EPA was not required to reconsider the ozone transport issue.

[A decision related to this litigation is published at 27 ELR 21540.]

Counsel for Petitioner
Christopher C. French
Kirkpatrick & Lockhart
1500 Oliver Bldg., Pittsburgh PA 15222
(412) 355-6500

Counsel for Respondents
Catherine M. Flanagan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Batchelder and Dowd,* JJ.