ELR Citation: ELR 20506
No(s). 88-2269 (6th Cir. Aug 30, 1990)

The court holds that the district court improperly awarded attorney fees under the Equal Access to Justice Act (EAJA) to a Detroit agency that owns a municipal solid waste incinerator because the district court lacked subject matter jurisdiction over the underlying litigation challenging the Environmental Protection Agency's (EPA's) authority under the Clean Air Act to revoke the permit for the facility. The Michigan Department of Natural Resources (DNR) issued a prevention of significant deterioration (PSD) permit to the Detroit agency. EPA then notified the DNR by letter that it was revoking its delegation of PSD authority to the DNR for the purpose of instituting proceedings to revoke the permit. EPA later withdrew the letter, stating that it had an insufficient basis to proceed with an action to revoke the permit. The court observes that EPA's original letter arguably constitutes a final agency action to the extent that it revoked the delegation of PSD permit authority to DNR for purposes of the Detroit facility. However, the court holds that the Detroit agency and the facility's contractor lack standing to object to the revocation of permit authority because they have failed to show any injury. Even assuming plaintiffs had standing, the court holds that the court of appeals is the proper forum to contest EPA's action. Congress provided in Clean Air Act §307(b)(1) that the courts of appeals would have exclusive jurisdiction to review actions of the EPA Administrator. The court holds that an exception to the general rule that exclusive jurisdiction lies in the court of appeals does not apply, since EPA's action was not a patent violation of its authority. There is no law that imposes constraints on EPA's authority to revoke its delegation of PSD authority to a state.

A concurring judge emphasizes that the EPA action was either final, and thus jurisdiction would be in the court of appeals, or the EPA action was not final, and thus the doctrine of exhaustion of administrative remedies would require plaintiffs to take further administrative steps before bringing suit.

A dissenting judge would hold that EPA's letter was not final agency action, and thus district court jurisdiction was not barred by Clean Air Act §307(b)(1). EPA's refusal to issue a final order concerning the permit or to provide an administrative forum to resolve the questions raised by the letter supported the original jurisdiction of the district court to hear this action. The dissent would hold that the doctrine of exhaustion of administrative remedies does not apply because EPA intentionally refused to implement orderly administrative proceedings. The dissent would also hold that the district court properly awarded attorney fees under the EAJA.

Counsel for Plaintiffs-Appellees
C.D. Floyd
Pillsbury, Madison & Sutro
225 Bush St., San Francisco CA 94104
(415) 983-1352

Counsel for Defendants-Appellants
Gregory B. Foote
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7625

Before: MERRITT, Chief Judge, KRUPANSKY, Circuit Judge, and GRAHAM, District Judge.^*