ELR Citation: ELR 20460
No(s). C-73-1159 (N.D. Ohio Jan 17, 1974)

The court denies a motion for a preliminary injunction and dismisses an action alleging that the granting of permits for the construction of a shopping mall violates the Clean Air Act and the U.S. Constitution. Plaintiffs' claims that the project will cause violation of ambient air quality standards, that Ohio has illegally failed to promulgate indirect source review regulations, and that the EPA Administrator has abused his discretion in delaying the effective date of federal indirect source review rules for 180 days, cannot be maintained in view of plaintiffs' failure to give 60 days notice prior to filing suit or to bring the action in the U.S. Court of Appeals as is required by the statute. Plaintiffs' contention that the action may be maintained under the Administrative Procedure Act independent of these requirements is mistaken since the APA does not apply where, as here, there is an explicit procedure for judicial review set forth for administrative actions taken under a particular statute. The court rules that there is no fundamental, constitutionally protected right to a healthful environment, and that plaintiffs have failed to allege facts which show a deprivation of liberty or property without procedural due process. The court also holds that the state procedures for issuing building permits do not constitute a denial of equal protection, even though they allow appeals by rejected applicants but not by the public when a permit is granted. In sum, the plaintiffs have not made any allegation sufficient to demonstrate that they are harmed by the procedures in question, including the withholding of a hearing prior to issuance of a permit.

Counsel for Plaintiffs
Bernard Berkman
Berkman, Gordon & Kancelbaum
2121 Illuminating Building
Cleveland, OH 44113

Counsel for Defendants
Richard J. Dickinson Asst. Attorney General
220 Parsons Avenue
Columbus, OH 43215

A. Segreti Asst. Attorney General
361 E. Broad Street
Columbus, OH 43215

George J. Umstead
Johnson & Umstead
1515 National City Bank Building
Cleveland, OH 44114