ELR Citation: ELR 20793
No(s). 80-C-0003 (N.D. Ill. May 16, 1985)

The court rules that a district court has jurisdiction under §304 of the Clean Air Act to hear a suit seeking to force the Environmental Protection Agency (EPA) to promulgate a state implementation plan (SIP) provision to replace a state provision disapproved by EPA, even though that disapproval is being challenged under §307 in a court of appeals. Ambiguity about whether EPA had finally disapproved the SIP provision in issue, which caused the court to dismiss plaintiff's earlier challenge, has been eliminated: EPA reversed earlier disapprovals of other provisions, but not this one. Initially, the court rules that EPA's action constituted partial disapproval of the SIP and triggered a non-discretionary duty to promulgate an alternative provision despite EPA approval or conditional approval of most of the remainder of the SIP.

The statute and legislative history do not define the boundary between district court jurisdiction to force agency action and court of appeals jurisdiction to review the propriety of the agency action that allegedly triggered the duty to act again. The court reviews the two pending suits and finds that they are sufficiently distinct that they will not interfere with each other. Since Congress expressly directed the district courts to enforce non-discretionary duties established by the Act, the court declines to cede exclusive jurisdiction to the court of appeals.

[An earlier decision in this case is published at 11 ELR 20963.]

Counsel for Plaintiffs
Robert E. Yuhnke
Environmental Defense Fund
1405 Arapahoe Ave., Boulder CO 80302
(303) 440-4901

Counsel for Defendants
Scott Slaughter, Richard Bozof, F. Henry Habicht II
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3170