ELR Citation: ELR 20845
No(s). 85-1159-B (M.D. La. Apr 15, 1986)

The court holds that it does not have subject matter jurisdiction to hear plaintiff's challenge to the Environmental Protection Agency's (EPA's) request for information pursuant to §114 of the Clean Air Act and notification of a possible violation of §112. The court first holds that it does not have jurisdiction under 28 U.S.C. §1346(a), which grants district courts original jurisdiction concurrent with the Claims Court for certain civil actions involving less than $10,000 in controversy. Section 1346(a) empowers the district courts to award monetary damages only, and plaintiff is asking for injunctive relief. The court then holds that it does not have jurisdiction under the federal question statute. For the federal question statute to apply, a federal law must create a substantive right, and plaintiff must establish in its complaint that such a right exists. The court holds that plaintiff's complaint does not establish any federal substantive right. Although plaintiff claims that the Administrative Procedure Act (APA) is the source of the substantive federal right to be adjudicated, the complaint fails to allege that this is an action for judicial review, that EPA's request for information under Clean Air Act §114 is a final agency action, or that EPA acted arbitrarily, capriciously, or abused its discretion.

The court then holds that even if the complaint had named the APA as the source of the federal right, the APA does not create a federal right to judicial review in this case. The APA does provide for judicial review for persons adversely affected by agency action within the meaning of a relevant statute; however, such a cause of action is withdrawn to the extent the relevant statute precludes judicial review. The court holds that EPA's request for information does not constitute final agency action since EPA has not issued a notice of violation or taken any further action. The court rules that the Clean Air Act precludes judicial review where EPA has not yet formally indicated its position with respect to a potential violation of the statute. Section 112 does not require advance notice of enforcement, but judicial review at this time would bypass EPA's various enforcement options. This case is analogous to the question of whether the Clean Air Act allows preenforcement review of the validity of a §113 enforcement order, and the case law has established that the Act bars such preenforcement review of §113 enforcement orders. It follows that if the Clean Air Act precludes preenforcement review of an actual order, then it also precludes review of a letter notifying plaintiff of a possible Clean Air Act violation.

Counsel for Plaintiff
Samuel P. Jordan Jr., R. Dean Cooper
Dow Chemical Company
P.O. Box 150, Plaquemine LA 70764
(504) 389-8226

Counsel for Defendant
Mark P. Fitzsimmons
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2285