Natural Resources Defense Council, Inc. v. Environmental Protection Agency

No. 72-2402 (5th Cir. July 28, 1975)

The court withdraws and vacates a portion of its earlier opinion, 4 ELR 20204, invalidating state-granted variances from a Clean Air Act implementation plan; the ruling in question was reversed by the Supreme Court in Train v. Natural Resources Defense Council, 5 ELR 20264.

Counsel are listed at 4 ELR 20204.

Wisdom, Dyer and Ingraham, JJ.

[5 ELR 20666]

Per curiam:

In our earlier opinion rendered in this case, Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 5 Cir. 1974, 489 F.2d 390, we held, inter alia: "It was inconsistent with [the Clean Air Act Amendments of 1970, 42 U.S.C. §§ 1857-58a] for Georgia to adopt its own variance procedures, and that the Administrator exceeded his authority in approving [Ga.Code Ann. § 88-912]." Accordingly, in that opinion we directed the Administrator to publish forthwith his disapproval of Ga.Code Ann. § 88-912. 489 F.2d at 403.

On certiorari, the United States Supreme Court reversed this portion of our opinion. Train v. Natural Resources Defense Council, Inc., 1975, U.S. , 95 S. Ct. 1470, 43 L. Ed. 2d 731. The Court held:

. . . [T]he Court of Appeals for the Fifth Circuit was in error when it concluded that the postponement provision of § 110(f) [43 U.S.C. § 1857c-5(f) is the sole method by which may be obtained specific ameliorative modifications of state implementation plans. The Agency had properly concluded that the revision mechanism of § 110(a)(3) ]43 U.S.C. § 1857c-5(a)(3)[ is available for the approval of those variances which do not compromise the basic statutory mandate that, with carefully circumscribed exceptions, the national primary ambient air standards be obtained is not more than three years, andmaintained thereafter.

U.S. at , 95 S. Ct. at 1491, 43 L. Ed. 2d at 757.

The portion of our earlier opinion inconsistent with this holding of the Supreme Court, reported as part III of our opinion, 489 F.2d at 398-403, is therefore withdrawn and vacated.