ELR Citation: ELR 20052
No(s). 7480-G (W.D. Ky. Aug 13, 1973)

The Clean Air Act does not require federal agencies to comply with the permit procedures of the Kentucky state implementation plan, which was approved pursuant to §110 of the Act, before operating installations which emit air pollutants. The federal government is immune from state regulatory measures unless Congress expressly directs otherwise in a particular case, and an examination of the Act's provisions and legislative history leads the court to conclude that the statute contemplates a self-imposed policy of federal compliance with applicable state emissions standards rather than the subjugation of federal facilities to state procedures. As an additional ground for granting defendants' motion for summary judgment, the court rules that this action, although nominally against federal officials, is actually against the sovereign, and thus barred, since §118 of the Act does not constitute a waiver of the doctrine of sovereign immunity. The court notes that EPA's failure to take action compelling the other defendants to comply with the state plan is unreviewable since it is agency action committed by law to agency discretion. For the purpose of providing a complete decision for appeal, the court also finds that the suit was improperly brought as a class action.

Counsel for Plaintiff
David C. Short
David D. Beals
309 Shelby St.
Frankfort, KY 40601

Counsel for Defendants
Kent Frizzell Asst. Attorney General
Wallace H. Johnson Asst. Attorney General
Walter Kiechel Deputy Asst. Attorney General
James Glasgow
Martin Green
Department of Justice
Washington, DC 20530

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

Counsel for Intervenor Commonwealth of Virginia
Andrew P. Miller Attorney General
Thomas Steger
Supreme Court Building
1101 E. Broad St.
Richmond, VA 23219