ELR Citation: ELR 20151
No(s). 84-7642 (9th Cir. Nov 3, 1987)

The court holds that the Environmental Protection Agency (EPA) exceeded its authority under the Clean Air Act by approving the ozone and carbon monoxide measures in California's South Coast Air Basin state implementation plan (SIP) without requiring a demonstration of attainment by the December 31, 1987, statutory deadline. The court first observes that it clearly has jurisdiction under Clean Air Act §307(b) to review EPA's 1984 final approval of the South Coast SIP revisions. The court holds that it also has jurisdiction over EPA's failure to require attainment demonstration. That EPA did not label its failure to act as final action does not preclude review in the court of appeals under §307. Further, the courts of appeals have jurisdiction to review agency inaction that is embedded in a challenge to the validity of a SIP. On the merits, the court holds that EPA violated the Clean Air Act by approving the South Coast ozone and carbon monoxide control measures without determining whether those measures will make reasonable further progress or attain the national air quality standards by December 31, 1987. The court rejects EPA's argument that it has broad discretion to approve portions of a SIP while reserving approval on attainment demonstration. Nothing in the Clean Air Act authorizes EPA to approve control measures independently of attainment demonstration. The court, rejecting EPA's request that the court remand the matter to the agency for further consideration, orders EPA to disapprove the relevant SIP provisions since EPA does not intend to take final action before the statutory deadline. The court holds that petitioner and certain intervenors are entitled to attorney fees under Clean Air Act §307(f).

Counsel for Petitioner
Daniel Selmi
Loyola Law School
P.O. Box 15019, Los Angeles CA 90015-3980
(213) 736-1001

Counsel for Respondent
Michael Wenig
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before Wiggins and Carroll,^[*] JJ.