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Montana Power Co. v. EPA

ELR Citation: 7 ELR 20496
Nos. No. CV-76-136-BLG, 429 F. Supp. 683/9 ERC 2096/(D. Mont., 01/27/1977)

The court grants declaratory relief and holds that Environmental Protection Agency (EPA) application of significant deterioration regulations to a proposed electric generating plant was arbitrary and capricious. The court has subject matter jurisdiction to review agency action even though 60-days' notice has not been given because the complaint alleges abuse of discretion rather than failure to perform a non-discretionary act under the citizen suit provision of the Clean Air Act. The regulations do not apply to a plant whose construction activities, including installation of water intake structures and purchase of turbine generators, commenced before the June 1, 1975, effective date of EPA's preconstruction review procedures. Determination of whether the procedures apply to a project where on-site construction has not commenced but the planning stage has been completed before the effective date requires a balance between entrepreneurial risks and social and economic utility. EPA failed to meet its duty to determine whether investor risks and irrevocable external commitments have reached the point that the project has embarked on a continuing course of construction exempting it from preconstruction review. The motion for preliminary injunction is denied, however, since the status quo would otherwise be altered, plaintiffs would receive substantially all the injunctive relief they could obtain during a trial on the merits, and plaintiffs have failed to show that irreparable harm would result if the motion is not granted.

Counsel for Plaintiffs
John L. Peterson
McCaffery & Peterson
27 W. Broadway St., Butte MT 59701
(406) 792-1221

John W. Ross
Montana Power Co.
40 E. Broadway, Butte MT 59701
(406) 723-5421

William H. Bellingham
Moulton, Bellingham, Long & Mather
200 Securities Bldg., Billings MT 59101
(406) 248-7731

Counsel for Defendants
Thomas A. Olson, U.S. Attorney; Keith L. Burrowes, Ass't U.S. Attorney
26th & 3d Ave. N., Billings MT 59101
(406) 657-6101

Counsel for Intervenors Northern Cheyenne Tribe and Northern Plains Resource Council
Bruce J. Terris
1526 18th St., NW, Washington DC 20036
(202) 332-1882