High Court Rules All Final EPA Action Under Clean Air Act Reviewable Exclusively in the Courts of Appeals

In an attempt to expedite and achieve consistency in judicial review of Environmental Protection Agency (EPA) actions taken pursuant to the Clean Air Act, Congress made certain regulatory decisions reviewable exclusively in the courts of appeals. Challenges to all other EPA actions, however, were relegated to the district courts. Not surprisingly, the proper forum for judicial review of particular EPA actions has been a matter of chronic dispute. In Harrison v. PPG Industries, Inc.,¹ a decision with potentially far-reaching implications, the Supreme Court recently adopted a very broad interpretation of the scope of direct appellate review under § 307(b)(1) of the Act,² as amended in 1977. The Court acknowledged that its ruling may entail a massive jurisdictional shift from the district courts to the courts of appeals, giving rise to procedural difficulties because fact-finding devices are severely limited at the appellate level. It determined, however, that these problems are matters for congressional rather than judicial consideration and do not authorize the Court to disregard the clear if somewhat troubling import of the statutory provision vesting such broad jurisdiction in the courts of appeals.

Statutory Scheme for Judicial Review

As originally enacted in 1970, § 307(b)(1) of the Clean Air Act³ made a limited number of rule-making and standard-setting actions by the EPA Administrator reviewable exclusively in the courts of appeals. The Act also provided that, unless a petition for review was filed within 30 days of the date the action was taken, the opportunity for review would be lost, and the merits of the action could not be challenged in later enforcement proceedings.⁴ Any other EPA action or omission was subject to challenge, if at all, in the federal district court under either § 304,⁵ the statutory "citizen suit" provision, or the court's general federal question jurisdiction over alleged violations of the Administrative Procedure Act (APA).⁶

The Clean Air Act Amendments of 1977⁷ added an additional category of actions⁸ to those specifically enumerated in § 307(b)(1) and lengthened the period during which review could be sought to 60 days after notice of the action appears in the Federal Register. More importantly, however, the amendments extended the courts of appeals' jurisdiction beyond the enumerated provisions to encompass "any other final action of the Administrator under this chapter … which is locally or regionally applicable." Three months later, after only cursory consideration, Congress passed amendments⁹ "necessary to correct technical errors or unclear phrases"¹⁰ in the statute. The "technical amendments" incorporated language in § 307(b)(1) specifying that EPA actions under four additional sections¹¹ of the Act would also be subject to direct appellate review. Section 307(b)(2)¹² continues to preclude review in any later enforcement proceedings of any EPA action under § 307(b)(1).¹³

[10 ELR 10122]

Harrison v. PPG Industries, Inc.

Background

In 1970 PPG Industries decided to construct a new power generating facility at its chemical manufacturing plant in Lake Charles, Louisiana. The unit was designed to take advantage of fuel-efficient "cogeneration" technology in filling the plant's needs for both steam and electricity. Electrical energy would be produced by the burning of natural gas in two turbine generators and the heated exhaust from these turbines was to be funnelled into two waste-heat boilers to generate additional electricity.¹⁴ Finally, steam from the waste-heat boilers was to be channelled into the plant for use in the manufacturing process.The new power facility was designed and the gas turbines ordered in 1970, although construction of the waste-heat boilers did not actually begin until 1976.

Meanwhile, EPA had established new source performance standards (NSPS) for major fossil fuel-fired steam generating units.¹⁵ The standards applied to sources upon which construction had not commenced when the standards were proposed. In 1975, after learning that the PPG plant was switching from natural gas to fuel oil as an energy source, EPA requested the firm to submit additional information bearing upon the applicability of the new source standards to the waste-heat boilers. The EPA Regional Director of Enforcement subsequently notified PPG by letter that the boilers were subject to the NSPS because, although construction of the power facility as a whole had commenced in 1970, construction of the boilers themselves had not begun until well after the date on which the standards were proposed.

PPG then submitted a formal request¹⁶ for an EPA determination that the waste-heat boilers were not subject to the new source standards. In a letter notifying PPG of her decision, the EPA Regional Administrator rejected PPG's contentions that the standards were inapplicable to waste-heat boilers and that the boilers were not "new" sources because construction of the power plant of which they were a part had begun before the date the standards were proposed.¹⁷

Litigation Below

Uncertain as to the proper forum in which to seek judicial review of the Regional Administrator's determination, PPG filed both a complaint for injunctive relief in the Federal District Court for the Western District of Louisiana and a petition for review in the Fifth Circuit Court of Appeals. The district court action was stayed on EPA's motion pending resolution of the jurisdictional issue by the court of appeals. PPG argued to the Fifth Circuit that it lacked jurisdiction to hear the petition directly under § 307(b)(1) and that the Regional Administrator's action was instead initially reviewable in the district court. EPA took the contrary view, contending that the challenged determination was properly categorized as "any other final action" within the meaning of § 307(b)(1), that the petition was thus properly before the court of appeals, and that the court should reach the merits and affirm the administrative decision.

The Fifth Circuit, plainly taken aback by the skeletal nature of the administrative record, which consisted of nothing more than the exchange of correspondence between PPG and EPA, ruled that it lacked jurisdiction to consider the petition.¹⁸ The court gave several reasons for its decision. First, it noted that interpreting "any other final action" literally so as to encompass all final EPA decisions under the Act would render the enumeration of specific actions in § 307(b)(1) redundant and superfluous. Second, it found no acknowledgement in the legislative history of the massive shift of jurisdiction to the courts of appeals that EPA's interpretation would entail. The Fifth Circuit expressed disbelief that Congress could have intended to effect such a sweeping change and yet fail to mention it in the legislative history. Finally, it explained in some detail the difficulties faced by courts of appeals in attempting to review informal agency decisions based upon such an incomplete administrative record. Assuming that Congress was aware of these practical difficulties, the court concluded that the legislators would not have enlarged its jurisdiction under § 307(b)(1) to encompass agency fact-finding without also giving it the trial-type procedural mechanisms essential to that kind of review.

Supreme Court Decision

On May 27, 1980, the SupremeCourt reversed the Fifth Circuit in Harrison v. PPG Industries, Inc.¹⁹ Writing for the majority, Justice Stewart ruled that the language of § 307(b)(1) on its face clearly encompassed informal adjudicatory determinations such as the Regional Administrator's decision that PPG's waste-heat boilers were subject to the NSPS for fossil fuel steam generators. The Court rejected PPG's contention that the phrase [10 ELR 10123] "any other final action" should be narrowed, under the doctrine of ejusdem generis,²⁰ to apply only to EPA rule-making functions similar to those that are specifically enumerated, that is, those characterized by a record reflecting notice and an opportunity for a hearing. Justice Stewart ruled the doctrine inapplicable, however, viewing it as a rule of construction to be used only to give meaning to ambiguous statutory language. Since there was no uncertainty in his mind as to the meaning of the phrase "any other final action," there was no occasion to invoke the doctrine. He also pointed out that the "similarity" advanced by PPG was false because § 112(c), one of the provisions enumerated in § 307(b)(1), does not require notice and an opportunity for comment.²¹ The majority acknowledged that its expansive reading of the phrase "any other final action" rendered the addition of specific provisions to the list in § 307(b)(1) in 1977 unnecessary. Justice Stewart rejoined, however, that interpreting the phrase in accordance with ejusdem generis would make these further additions to the list no less superfluous.

The Court then looked to the scanty legislative history and found nothing to indicate that the phrase "any other final action" should be given anything less than its literal meaning. Although admitting that the 1977 amendments to § 307(b)(1) were intended to reallocate venue between the D.C. and other circuit courts,²² Justice Stewart categorically rejected the contention that this was the sole purpose of the changes. He was also unmoved by the contention that Congress would not have adopted such a substantial expansion of the jurisdiction of the courts of appeals without some explicit consideration and discussion of the matter. The absence of corroborative statements in the legislative history, he explained, cannot negate the meaning of a statutory provision that is clear on its face.

The Court deflected petitioners' additional argument that placing review of informal adjudications such as this in the district court would better serve the underlying statutory purpose of expediting judicial review. Although Justice Stewart conceded that the delay entailed in appellatecourt remands to EPA for augmentation of the record might exceed the time saved by foregoing two-tiered judicial review, he observed that such concerns are appropriately addressed to Congress, not the courts.

Finally, the majority gave cursory treatment to PPG's argument that an expansive interpretation of § 307(b)(1) would violate due process by precluding a defendant in an enforcement proceeding from attacking a wide variety of earlier informal EPA decisions that may bear on his case but were not brought to a court of appeals within 60 days. Justice Stewart stated that the constitutionality of the § 307(b)(2) preclusion against subsequent judicial consideration of questions reviewable under § 307(b)(1) was simply not at issue.

Justice Powell, however, concurred separately to express reservations about the constitutionality of the review preclusion provision.²³ Noting that these constitutional difficulties would normally counsel a narrow interpretation of § 307(b)(1),²⁴ he emphasized that such a construction was not possible in this instance because of the clear intent of Congress. In a second concurring opinion, Justice Blackmun agreed that the lack of evidence to the contrary in the legislative record made a broad interpretation of § 307(b)(1) inescapable. It is for Congress to impose some clear limitation on the § 307(b)(1) grant of direct appellate jurisdiction over informal EPA determinations, he explained.

Dissent

Justice Rehnquist argued in dissent that the 1977 amendments to § 307(b)(1), including particularly the later "technical" amendments, create uncertainty as to the underlying congressional intent that necessitates resort to the legislative history and devices of statutory construction. In his view, the limited legislative history suggests the amendments to § 307(b)(1) were aimed at resolving problems of venue among the courts of appeals rather than accomplishing a major jurisdictional shift from the district to the appellate courts. In support of his position, he pointed to the absence of any express indication of a congressional intent to work such a jurisdictional change, a silence quite significant in light of the fact that such an expansion of direct appellate jurisdiction is completely inconsistent with the traditional role of the courts of appeals. Moreover, he noted, if the doctrine of ejusdem generis is applied with reference to § 307(b)(1) as it stood at the time the phrase "any other final action" was added to the statute, it supports the conclusion that notice and comment is the touchstone by which to determine those EPA actions that are directly reviewable in the courts of appeals.²⁵

Dissenting separately, Justice Stevens contended that the majority's construction of § 307(b)(1) will burden the courts of appeals with a spate of new cases in which review will be peculiarly difficult because of sparse administrative records. It will also, he argued, allow EPA "virtually unlimited" discretion to transform informal advice regarding the application of a rule or standard in particular circumstances into final action reviewable exclusively in the courts of appeals within 60 days and immune from challenge in subsequent enforcement proceedings. Expressing disbelief that Congress intended this "highly undesirable" result, Justice Stevens contended that the phrase "any other final action … under this [10 ELR 10124] chapter" should instead be read as referring to EPA actions directed or authorized by specific provisions in the Act. This interpretation, which in his estimation has the virtue of being consistent with both the plain language and a ejusdem generis construction of § 307(b)(1), would exclude from direct appellate review actions, such as the challenged NSPS applicability determination, that are authorized by Agency regulations rather than the statute itself.

Analysis

Interpretation of § 307(b)(1)

The majority's "plain language" interpretation of § 307(b)(1) is open to question principally because it entails sweeping jurisdictional consequences that are not mentioned anywhere in the legislative history. It is unlikely that Congress intended a massive expansion of direct appellate jurisdiction that converts what had been an exceptional review mechanism into the universal rule. The complete absence of any corroboration of such congressional intent provides strong counsel for the adoption of an intermediate interpretation of § 307(b)(1). Indeed, what little legislative history there is on the point seems to buttress Justice Rehnquist's view that the purpose behind insertion of the phrase "any other final action" in § 307(b)(1) in 1977 was a modest clarification of venue rules rather than a broad expansion of appellate jurisdiction.²⁶

The uncertainties that flow from the confusing chronology of the amendment process and the inexplicable internal redundancy that a literal interpretation of the phrase "any other fianl action" provokes make it difficult to resist using tools of statutory construction such as ejusdem generis. Applying the doctrine to § 307(b)(1) as it stood after the original August 1977 amendments validates the petitioners' position that notice and comment is the distinguishing feature of EPA actions that are exclusively reviewable in the courts of appeals under that provision.²⁷ Applying the same analysis to the section as it now stands, however, after the final changes wrought by the later "technical" amendments, supports instead Justice Stevens' view that only actions pursuant to express statutory mandates or authorizations are covered by the direct review provision.

The majority is strictly correct, however, that ejusdem generis is inapplicable since the language of § 307(b)(1) is facially free of ambiguity.²⁸ It is thus understandable that the majority declined to invoke the doctrine to overcome the difficulties created by overly sweepinglegislative language. It is similarly defensible that the Court refused to allow the absence of relevant legislative history to override the very straightforward language of § 307(b)(1). The Court simply opted to read the statute as it was written and let Congress shoulder the responsibility for any ensuing disruption of judicial or agency proceedings.²⁹

The majority candidly acknowledged that its reading of § 307(b)(1) might work a broad jurisdictional shift and impose certain practical difficulties upon the courts of appeals. It expressed serious doubt that these mechanical problems would prove insurmountable, however. Justice Stewart noted that remands for augmentation of the record can compensate for the appellate court's lack of fact-finding devices and emphasized that such remands are unlikely to negate totally the time saved by avoiding two-tiered review. Justice Blackmun's concurrence and the two dissents, on the other hand, predicted that the consequences of this shift in jurisdiction will be dire, emphasizing the incompatibility of such an expansion with both the underlying theory and practical mechanics of appellate review. The statements of the majority and Justice Blackmun characterizing these concerns as matters for Congress to address can be read as implicit suggestions for congressional action to delineate more clearly the scope of direct appellate review under § 307(b)(1). It can be hoped that these thinly disguised calls for further statutory guidance will strike a responsive chord when legislative deliberations on possible modifications to the Clean Air Act begin next year.

Implications of the Ruling

The Court's decision in Harrison may well bring about a substantial jurisdictional upheaval. The majority's interpretation of the scope of exclusive appellate jurisdiction under § 307(b)(1) could hardly be broader. Its reading of the phrase "any other final action" to encompass all Agency determinations that fall within the APA definition of final agency action and its failure to deduce any procedural or subject matter limitations on those actions that are directly reviewable in the courts of appeals leaves only citizens suits under § 304 and enforcement actions to the district courts.

Initially, a fair number of remands to the Agency are likely as the appellate courts throw up their hands when confronted with administrative records of the sort presented in Harrison. If this happens, EPA will soon be forced to assume the added burden of compiling more extensive decisional records for every informal determination in order to reduce the risk of such remand orders.

Due Process

The majority's refusal to reach the question of the validity of the § 307(b)(2) preclusion against review in later enforcement proceedings of any issue that could have been reviewed in the court of appeals within 60 days under § 307(b)(1) is only a postponement of the inevitable. Furthermore, Justice Powell's concurrence and Justice Steven's dissent, when read against the dissenting opinion of Justices Stewart, Brennan, and Blackmun in Adamo Wrecking Co. v. United States,³⁰ indicates the [10 ELR 10125] presence of deep divisions within the Court over this question.

The immediate issue, however, is whether EPA will bear out Justice Stevens' fears and begin publishing notices in the Federal Register of all its informal decisions concerning the application of a regulation or standard to a particular source. Such a concerted effort to establish the courts of appeals as the sole forum for review of such determinations and to preclude later challenges in enforcement proceedings, whether or not the determination was in fact judicially tested, would raise the due process issue directly and starkly. Should EPA adopt this course, the only alternative response from affected parties in the wake of Harrison will likely be a pro forma petition to the appropriate court of appeals seeking review of every determination of this sort since later challenges will be foreclosed.

Conclusion

In Harrison the Supreme Court largely resolved the chronic dispute over the proper forum in which to seek judicial review of particular EPA actions under the Clean Air Act. It is now clear that nearly all final EPA actions, from broadly applicable rule making to informal factual determinations covering only a single plant, are reviewable exclusively in the courts of appeals. This resolution of a longstanding jurisdictional issue promises on balance to expedite judicial review under the Act.It also threatens, however, to increase significantly the caseload of the courts of appeals and to force EPA to shoulder the added burden of compiling more extensive administrative records for its informal adjudicatory actions. This difficulty, in combination with the likelihood that Congress never intended such a result, creates a tension in this area of the law that may well lead to clarifying modifications of § 307(b)(1) as part of the Clean Air Act amendment process in 1981.

Given Harrison's broad interpretation of the scope of § 307(b)(1), the preclusion provision of § 307(b)(2) will thus come into play to prevent defendants in subsequent enforcement proceedings from challenging the validity of this wide range of agency actions. This means that in most enforcement proceedings both the validity and applicability of the governing standard or regulatory requirement will be immune from attack and the only real issue will be whether the defendant in fact violated the standard or requirement. Assuming there are no constitutional barriers to full implementation of this scheme, EPA enforcement proceedings could become much simpler for the Agency. It is noteworthy, however, that two Justices have warned that applying the provision to the Agency's countless informal adjudicatory actions may raise serious constitutional difficulties. As EPA's enforcement program under the Act progresses, the Court is likely to have an opportunity to consider directly whether § 307(b)(2), given its expanded reach in the wake of Harrison's broadening of § 307(b)(1), deprives particular defendants of due process.

1. 48 U.S.L.W. 4585, 10 ELR 20353 (U.S. May 27, 1980).

2. 42 U.S.C. § 7607(b)(1), ELR STAT. & REG. 42257.

3. 84 Stat. 1707 (1970). The specific sections for which direct appellate review was made available were the promulgation of national ambient air quality standards under § 109, issuance of hazardous emissions standards under § 112, establishment of new source performance standards under § 111, setting auto emission, fuel or fuel additive or aircraft emission standards under §§ 202, 211, or 231, and the approval or promulgation of state implementation plans under § 110.

4. Section 307(b)(2), 84 Stat. 1707 (1970).

5. 42 U.S.C. § 1857h-2 (1970).

6. 28 U.S.C. § 1331; 5 U.S.C. §§ 702, 704, 706, ELR STAT. & REG. 41005. See Califano v. Sanders, 430 U.S. 99, 104-107 (1976) (§§ 702 and 704 do not constitute an independent grant of subject matter jurisdiction for judicial review of administrative action, but § 1331 makes such action reviewable in absence of express statutory preclusion).

7. Pub. L. No. 95-95, 91 Stat. 776 (1977).

8. The added category was the issuance of rules for the assessment of noncompliance penalties under § 120 of the Act.

9. Clean Air Act Technical and Conforming Amendments, Pub. L. No. 95-150, 91 Stat. 1404 (1977).

10. 123 CONG. REC. S18372 (daily ed. Nov. 1, 1977) (remarks of Sen. Muskie).

11. Court of appeals' jurisdiction was extended to include review of actions under the following sections: § 111(j) (NSPS waivers for sources using innovative technology); § 112(c) (exemptions from hazardous pollutant emission standards); § 113(d) (final compliance orders); and § 119 (primary nonferrous smelter orders).

12. Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.

42 U.S.C. § 7607(b)(2), ELR STAT. & REG. 42258.

13. Section 307(b)(1) now reads as follows:

A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under § 7412 of this title, any standard of performance or requirement under § 7411 of this title, any standard under § 7521 of this title (other than a standard required to be prescribed under § 7521(b)(1) of this title), any determination under § 7521(b)(5) of this title, any control or prohibition under § 7545 of this title, any standard under § 7571 of this title, any rule issued under § 7413, 7419, or under § 7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator's action in approving or promulgating any implementation plan under § 7410 of this title or § 7411(d) of this title, any order under § 7411(j) of this title, under § 7412(c) of this title, under § 7413(d) of this title, under § 7419 of this title, or under § 7420 of this title, or his action under § 119(c)(2)(A), (B), or (C) of the Clean Air Act (as in effect before August 7, 1977) or under regulations thereunder, or any other final action of the Administrator under this chapter (including any denial or disapproval by the Administrator under subchapter I of this chapter) which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such determination. Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise.

14. Waste heat from the turbines was to provide approximately 40 percent of the heat input for the boilers, with the remaining 60 percent coming from direct fossil fuel combustion.

15. 40 C.F.R. §§ 60.1-60.15, 60.40-60.46 (1979).

16. The regulations establish a procedure whereby the Administrator will make a determination regarding NSPS applicability upon request. 40 C.F.R. § 60.15 (1979).

17. The Regional Administrator indicated, however, that PPG would be accountable for NSPS purposes only for those emissions from the waste-heat boilers attributable to fossil fuel combustion.

18. PPG Indus., Inc. v. Harrison, 587 F.2d 237, 9 ELR 20086 (5th Cir. 1979).

19. 48 U.S.L.W. 4585, 10 ELR 20353 (U.S. May 27, 1980).

20. This doctrine states that where general words follow specific words in a statutory enumeration, the general words are to be construed to embrace only those objects similar in nature to those specified in the preceding enumeration. See 2A SUTHERLAND STATUTORY CONSTRUCTION § 47.17 at 103 (4th ed. 1972).

21. See 42 U.S.C. § 7412(c), ELR STAT. & REG. 42220.

22. The House Report stated that the 1977 amendments to § 307(b)(1) were "intended to clarify some questions relating to venue for review of rules or orders under the Act." H.R. REP. NO. 95-924, 95th Cong., 1st Sess. at 323 (1977).

23. Justice Powell expressed these same reservations in his concurrence in Adamo Wrecking Co. v. United States, 434 U.S. 275, 8 ELR 20171 (1978), a criminal enforcement proceeding under the Act.

24. See, e.g., Chrysler Corp. v. EPA, 600 F.2d 904, 912-14, 9 ELR 20612 (D.C. Cir. 1979); Utah Power & Light Co. v. EPA, 553 F.2d 215, 219, 7 ELR 20197, 20200 (D.C. Cir. 1977).

25. Section 112(c), the one enumerated provision that does not require notice and comment, was added to the list in § 307(b)(1) as part of the "technical" amendments three months after the phrase "any other final action" was inserted.

26. See note 22 supra.

27. See note 25 supra.

28. The oft-stated limitation is that courts can apply devices for statutory construction only where the statute is not clear and unambiguous on its face. See 2A SUTHERLAND STATUTORY CONSTRUCTION § 45.02 at 4 (4th ed. 1972).

29. As with the Court's decision in TVA v. Hill, 437, U.S. 153, 8 ELR 20513 (1978), the opinion can be viewed as an invitation to Congress to modify the statute to solve these problems. See generally, Comment, Supreme Court Protects Snail Darter from TVA; Congress Poised to Weaken Endangered Species Act, 8 ELR 10154 (1978).

30. Justice Stewart stated flatly in his Adamo dissent that § 307(b)(2) barred the petitioner in that case from questioning in a criminal enforcement proceeding the validity of an emission limitation previously promulgated under § 112. 434 U.S. at 291, 8 ELR at 20179.