ELR Citation: ELR 20329
No(s). 78-281 (D.D.C. Mar 15, 1978)

The court dismisses, for lack of subject matter jurisdiction, a suit seeking declaratory and injunctive relief against the Environmental Protection Agency Administrator's decision to defer implementation of the prevention of significant deterioration (PSD) preconstruction review provisions of §165(a) of the 1977 Clean Air Act amendments beyond August 7, 1977, the date of its enactment. The court concludes that review of the Administrator's decision to exempt from §165's stringent requirements any major emitting facilities that had received a PSD construction permit prior to March 1, 1978, and upon which construction commences before December 1, 1978, lies exclusively in the court of appeals under §307(b)(1). The decision constituted "final action" which, under §307(b)(1), as broadened and clarified by the 1977 amendments, is subject to review only in the Court of Appeals for the District of Columbia Circuit. Moreover, because of the conflict between §165's statement that its provisions are to become effective immediately upon enactment and other sections of the statute that indicate the contrary, the Administrator's decision to delay implementation of the more stringent permit requirements represented a discretionary interpretation of the statute rather than a non-discretionary act, and as such is reviewable only in the court of appeals under §307.

Counsel for Plaintiff
Robert J. Rauch, Bernard A. Gould
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington DC 20036
(202) 833-1484

Counsel for Defendant
Earl Salo, Peter H. Wyckoff
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 737-8200

Counsel for Defendant Intervenor Alabama Power Co.
George C. Freeman, Jr., Henry V. Nickel, Michael B. Barr
Hunton & Williams
707 E. Main St., Richmond VA 23212
(804) 788-8200