ELR Citation: ELR 20357
No(s). 92-1786 (4th Cir. Jan 8, 1993)

The court holds that a district court lacked jurisdiction under Clean Air Act (CAA) §304(a)(2) over claims for injunctive relief by utilities seeking to compel the U.S. Environmental Protection Agency (EPA) to process their applications for extensions of the deadline for compliance with sulphur dioxide emission limitations established by the 1990 CAA Amendments. The court first notes that the Court of Appeals for the District of Columbia does not have jurisdiction over the utilities' claims, because the utilities' complaint cannot be characterized as a petition for review of nationally applicable regulations. The court holds that it must defer to the U.S. Environmental Protection Agency's (EPA's) reasonable interpretation of CAA §404(d)(3) as not requiring EPA to consider extension applications before the Agency adopts final regulations, because the statute is silent on this question. The court notes that the statute does not directly contradict the district court's conclusion that EPA has a nondiscretionary duty under §404(d)(3) to accept and review extension proposals immediately in the order they are received. Although the statute requires permit applications to be filed in accordance with regulations promulgated by EPA, it does not provide that utilities must petition for extensions in their permit applications. However, the court holds that the statute does not expressly or impliedly provide when EPA must begin to accept extension proposals or review submitted proposals, because CAA §404(d)(3) only limits the manner in which EPA must review and take final action on submitted proposals.

The court holds that EPA's interpretation of the statute as not requiring review of proposals before the Agency promulgates governing regulations is reasonable. It is reasonable to interpret §404 as reflecting Congress' intent that extension proposals should be submitted only with permit applications. Assuming that this was Congress' intent, it may reasonably be inferred from the requirement in §408(b) and (c)(1) that permit applications be filed pursuant to regulations, that Congress did not intend EPA to review extension proposals under §404(d)(3) until it promulgated final governing regulations. The reasonableness of this interpretation is underscored by §408, which requires utilities to submit permit applications and compliance plans in accordance with regulations issued by EPA. This interpretation of §404(d)(3) is also supported by the fact that no other section of the statute provides for the submission of extension proposals. Finally, it is consistent with the reasonable expectation that Congress would have provided EPA with a period of time within which to develop implementing guidelines before requiring the general public and the Agency, respectively, to submit and review extension proposals.

The court holds that EPA's interpretation of the CAA is also entitled to deference, because it is more than a litigation position. EPA has consistently maintained this position, at least since it rejected the utilities' applications. The Agency has now embodied its interpretation in final regulations implementing the Act. The court also holds that it is frivolous to argue that EPA's interpretation is not entitled to deference if the White House exerted influence over the Agency. Any policymaking influence exerted over EPA by the White House, provided it was consistent with the law, was fully permissible under the U.S. tripartite system of separated powers.

Counsel for Plaintiffs/Appellees
William J. Murphy
Murphy & Shaffer
100 Light St., Ste. 750, Baltimore MD 21202
(410) 752-1564

Counsel for Defendant/Appellant
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Amicus Curiae
Stephen E. Roady
Andrews & Kurth
1701 Pennsylvania Ave. NW, Ste. 200, Washington DC 20006
(202) 662-2700

Before PHILLIPS and LUTTIG, Circuit Judges, and TRAXLER, United States District Judge for the District of South Carolina, sitting by designation.