ELR Citation: ELR 20484
No(s). 73-2099 (6th Cir. Jun 5, 1974)

The Sixth Circuit Court of Appeals affirms a lower court's ruling that §118 of the Clean Air Act does not require operators of various federal and TVA facilities in Kentucky to apply for permits under the state's implementation plan before emitting air pollutants. The court holds that under §118 federal facilities must comply with the plan's substantive emissions standards and limitations, but are not subject to its procedural requirements. An examination of the statute's legislative history leads the court to conclude that Congress did not intend to subject federal instrumentalities to state administrative regulations, and this conclusion is supported by Executive Order Nos. 11507 and 11752. Suit against the federal defendants under §118 is barred since that section contains no waiver of sovereign immunity, and the Supremacy Clause of the Constitution precludes requiring the TVA defendants to comply with state permit regulations. In response to plaintiff's contention that such a ruling will curtail the state's ability to prevent pollution rather than merely abate it, the court points out that §304 of the Act allows preventive actions to be brought against federal agencies for violation of a schedule or timetable of compliance with state emission standards. The court also holds that the district court correctly ruled that it had no power to review EPA's decision not to commence actions under §113 to compel the other defendants to seek permits, since the language of §113 shows this to be agency action committed by law to agency discretion, and thus exempt from review under the Administrative Procedure Act. The lower court's grant of defendants' motion for summary judgment is affirmed.

For the district court's opinion see 4 ELR 20052.

Counsel for Plaintiff
Ed W. Hancock Attorney General
Capitol Building
Frankfort, KY 40601

David C. Short
David D. Beals Asst. Attorneys General
309 Shelby Street, Room 111
Frankfort, KY 40601

Counsel for Defendants
Wallace H. Johnson Asst. Attorney General
Jacques Gelin
Robert Klarquist
Department of Justice
Washington, DC 20530

George J. Long U.S. Attorney
211 Federal Building
Louisville, KY 40202

G. Wilson Horde
P.O. Box Y
Oak Ridge, TN 37830

Robert H. Marquis
Herbert S. Sanger, Jr.
Beauchamp Brogan
Justin Schwamm
Jennessee Valley Authority
Knoxville, TN 37902

Counsel for Amicus Curiae Commonwealth of Virginia
Andrew P. Miller Attorney General
J. Thomas Steger Asst. Attorney General
Supreme Court Building
1101 East Broad Street
Richmond, VA 23219

Counsel for Amicus Curiae State of Texas
John L. Hill Attorney General
Larry F. York
Philip K. Maxwell
P.O. Box 12548, Capitol Station
Austin, TX 78711

Counsel for Amicus Curiae State of California
Evelle J. Younger Attorney General
Robert O.Brien
Nicholas C. Yost
Jan E. Chatten
600 State Building
217 West First Street
Los Angeles, CA 90012