ELR Citation: ELR 20719
No(s). 73-1272 (10th Cir. Aug 8, 1973)

The Court of Appeals overturns a district court order enjoining officials of the Environmental Protection Agency from promulgating proposed limitations on sulfur oxide emissions pending an adjudicatory hearing and preparation of an environmental impact statement. The district court lacked jurisdiction to entertain the suit, as the administrative proceedings were not yet virtually final, and did not threaten the plaintiff with irreparable injury, at the time the suit was filed. The statute establishes an adequate remedy, review by the court of appeals for the appropriate circuit, which for plaintiff Anaconda's Montana operations is the Ninth. Section 1875h-2(a)(2), authorizing citizen's suits to compel the EPA Administrator to perform non-discretionary duties, does not apply here, in view of the clear congressional intent that courts of appeals, not district courts, are to review promulgation or implementation of clean air plans. To allow injunctive relief by a district court far from the scene would also encourage forum shopping. In addition, the cause was not ripe for injunctive relief, as the regulation was merely proposed and not final. While the court does not decide, in view of its lack of jurisdiction, whether NEPA requires EPA to file environmental impact statements, it concludes that this contention is lacking in merit and substance, and cites decisions to this effect of several courts of appeals. Lastly, the court finds that no violation of procedural due process took place when EPA refused to grant an adjudicatory hearing and held an evidentiary hearing instead, for although Anaconda is the only significant source of sulfur oxides in the county to which the regulation applies, there are many other interested parties with a right to be heard on the subject of permissible emission levels. For the opinion of the district court, see 3 ELR 20024.

Counsel for Plaintiff
Harry L. Hobson
Robert T. Connery
E. Brooke Jackson
Holland & Hart
500 Equitable Building
Denver, Colorado 80202

Counsel for Defendants
Henry J. Bourguignon
Department of Justice
Washington, DC 20530