Arizona Public Service Company v. Fri

Civ. No. 73-282 WPC (D. Ariz. June 25, 1973)

Under the language of § 307 of the Clean Air Act, a federal district court lacks jurisdiction to hear claims that EPA, in promulgating an implementation plan pursuant to § 110 (c) of the Act, denied plaintiff power company due process, inversely condemned its property, and failed to comply with NEPA. The Congress intended that only mandamus actions against EPA for failure to act under the CAA should fall within the district courts' jurisdiction; challenges to EPA action in promulgating plans under the Act find their proper forum in the U.S. Circuit Courts of Appeals. Although there is some authority for the view that questions regarding the necessity of an EIS are more appropriately reviewed by a district court, the NEPA claims in this case are not "irremediable by the statutorily-prescribed method of review," and should follow that course.

Counsel for Plaintiffs
Bruce Norton
John Bouma
Kenneth R. Reed
Jon L. Kyl
Leroy Michael
Snell & Wilmer
243 N. Central, Suite 3100
Phoenix, Arizona 85073

Counsel for Defendants
James A. Glasgow
Department of Justice
Washington, D.C. 20530

Richard S. Allemann Asst. U.S. Attorney
Rm. 5000 Federal Building
Phoenix, Arizona 85025

[3 ELR 20894]

Copple, J.

The government has moved to dismiss this action seeking injunctive relief and damages resulting from the promulgation by the Environmental Protection Agency (EPA) of an implementation plan pursuant to Clean Air Act § 110 (c), 42 U.S.C. § 1957c-5 (1970). Plaintiffs strenuously argue that despite the provisions of § 307 of the Act, 42 U.S.C. § 1857h-5 (b)(1), jurisdiction lies in this Court to consider its claims of inverse condemnation, denial of procedural due process, failure of EPA to comply with the National Environmental Policy Act, and infringement of plaintiffs' rights in violation or excess of statutory authority.

A number of these issues are not raised in the original complaint, but are in the proposed amended complaint, which may be filed. Fed. R. Civ. P. 15 (a).

Stated by themselves in an ordinary case, this Court undoubtedly has jurisdiction to hear each of those claims. The question to be decided is the effect of the statutory language, "A petition for review of the Administrator's action . . . may be filed only in the United States Court of appeals for the appropriate Circuit." 42 U.S.C. § 1857h-5 (b)(1) (emphasis added); see Id. § 1857c-5 (f)(2)(B). The plaintiffs here have filed such petitions. Arizona Public Service v. EPA, No. 73-1731 (9th Cir.); Arizona Public Service v. EPA, No. 73-1265 (10th Cir.).

It was the intention of Congress to "specify the courts" in which EPA actions could be challenged. Conf. Rep. No. 91-1783, 91st Cong., 2d Sess., in 1970 [3] U.S. Cong. & Ad. News 5374, 5389. If inverse condemnation has taken place, it is only as a direct result of the EPA action, and such a finding would necessarily involve determining the relative necessity of the promulgated order. Almost the identical process — determining the reasonableness of, and authority for the regulation — is within the purview of the court of appeals under § 307 of the Act, regardless of whether this court would have jurisdiction of the claim. See United States v. Gila River Pima-Maricopa Indian Community, 391 F.2d 53 (9th Cir. 1968). How a determination of the due process issue can be separated from a review for abuse of discretion is equally unclear to the Court. Whether the EPA acted within its statutory authority herein is the central issue now pending before the Ninth and Tenth Circuits in the above-noted petitions.

Plaintiffs cite Nader v. Volpe, 466 F.2d 261 (D.C. Cir. 1972), for the proposition that a district court has jurisdiction in the face of this type of statute where there is "a showing of patent violation of agency authority or manifest infringement of substantial rights irremediable by the statutorily-prescribed method of review." Id. at 266 (footnotes omitted). Nader involved interpretation of congressional intent, as did the principle case on which it relied. Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180 (1958) (where remedy for congressionally-granted right is not apparent, court has jurisdiction of nonstatutory action). In Nader, furthermore, the congressional intent was not so clear as here: an aggrieved person "may . . . file a petition with the United States court of appeals." 15 U.S.C. § 1394 (a)(1) (1970) (emphasis added). Nevertheless, jurisdiction was found absent in the district court.

Plaintiffs rely strongly on the principles enunciated in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507 (1967). The Court there again indulged in a comprehensive analysis to determine congressional intent in the context of the legislative scheme. In the Clean Air Act, Congress plainly envisioned two possibilities on the part of the Administrator: he would act (setting standards, etc.), or he would not. In the latter case, a right of suit in the nature of mandamus in the district court was granted. 42 U.S.C. § 1857h-2 (1970). It is for the enforcement of ministerial duties. Where he has acted, review is specified in the court of appeals. Compare Jicarilla Apache Tribe v. Ruckelshaus, Civil No. 125-73 (D.D.C. Feb. 5, 1973), with Id. [3 ELR 20895] (D.D.C. May 23, 1973) (jurisdiction of district court in section 1857h-2 action ceases after promulgation of plan under section 1857c-5). A different situation existed in Abbott. There, no provision for review of the type of action existed in the statute, and jurisdiction was found under the Administrative Procedure Act. If plaintiffs' claims are fairly within the scope of review in the court of appeals, therefore, there is no jurisdiction in this court to hear the matter.

First, plaintiffs seek a stay pending hearing of the EPA order requiring a compliance schedule by July 23, 1973, on the ground that millions of dollars of research and prototype construction hang in the balance. Such a motion is properly addressed to the court of appeals in just this type of action. Fed. R. App. P. 18. Second, plaintiffs would prosecute an action mandating an environmental impact statement in such cases as this. Whatever the merits of the issue, at least one court of appeals has treated the issue in a review under section 307 of the Clean Air Act. Appalachian Power Co. v. EPA, [3 ELR 20310, 20315] (4th Cir. Apr. 11, 1973). On the other hand, in a case very similar to the present one, a district court has taken jurisdiction of the due process, eminent domain and impact statement issues. Anaconda Co. v. Ruckelshaus, 353 F. Supp. 697 (D. Colo. 1972). But in that case, as in Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972), and Abbott, no appealable order existed, there was apparent irreparable injury, and the Abbott-Nader criteria were met. Despite Judge Winner's view that the district court is a more appropriate forum for impact statement review, 352 F. Supp. at 709, that difference makes the case at bar not exceptional; the claims are not "irremediable by the statutorily-prescribed method of review." Nader v. Volpe, supra, at 266. They are all within the scope of review under § 307 of the Act.

This Court is without jurisdiction of the action. Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 93 S. Ct. 937 (1973); see Environmental Defense Fund, Inc. v. EPA, No. 72-1548 (D.C. Cir. June 6, 1973); cf. Duquesne Light Co. v. EPA, Nos. 72-1542, -1543 (3d Cir. June 5, 1973).

IT IS ORDERED:

1. Plaintiffs' First Amended Complaint, heretofore lodged with the Court, shall be filed by the Clerk.

2. Defendants' motion to dismiss is granted, and the complaint and action are dismissed with prejudice.