ELR Citation: ELR 21561
No(s). s. 94-1042 et al (D.C. Cir. Jul 9, 1996)

The court holds that challenges by petitioner environmental groups, utilities, and trade associations to the U.S. Environmental Protection Agency's (EPA's) rules for delegating to states its authority to regulate hazardous air pollutant emissions and accidental releases are nonjusticiable. The court first holds that the environmental groups lack standing to challenge the rules. The groups contend that because the rules allow EPA not to enforce federal air pollution standards in a particular state as soon as EPA approves the state's proposed program, the rules allow an enforcement gap if a state seeks approval of its program before it puts the program into effect. The court holds that the groups have not established that an enforcement gap will concretely and personally affect them or their members. If no state seeks delegation of EPA's authority, no enforcement gap can result. Even if the gap may occur in one state, the court refuses to assume that the gap will affect areas actually frequented by the groups' members. The court holds that the groups also have not established that an enforcement gap is imminent, because the gap cannot result unless some state seeks to substitute its own program for otherwise applicable federal regulations. Even if a state seeks such substitution, the gap cannot develop unless the regulations within that state's program will not be in effect when EPA might approve the state's program. And even if both these predicates occur, the groups' asserted injury cannot occur unless EPA, despite the lack of state regulations currently in place, approves the state's program.

The court holds that the utility petitioners also do not state an injury sufficiently imminent and concrete for constitutional standing. The utilities' alleged injury is an invasion of rights that would occur if EPA, under the challenged regulations, approved a state requirement and enforced it as a federal requirement, even though that requirement was more stringent than one EPA could implement on its own under the Clean Air Act. Nevertheless, the utilities have identified no state that has adopted any more stringent rule that is or is about to be federalized by EPA. The court next holds that the trade associations' challenge is unripe because the court cannot ascertain or predict the specific practical problems that the associations and their members might face or that might need remedy until the approval of some state's requirement or some other occurrence cements the application and effect of the challenged rules. The court holds, however, that the statutory time bar will not begin to run until the associations' claim ripens.

Counsel for Petitioners
David M. Driesen
Syracuse University College of Law
E.I. White Hall, Syracuse NY 13244
(315) 443-2524

Counsel for Respondents
Karen L. Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: BUCKLEY, SENTELLE, and RANDOLPH, Circuit Judges.