ELR Citation: ELR 20690
No(s). C-4750 (D. Colo. Aug 2, 1974)

The court grants summary judgment against plaintiffs seeking to enjoin the use of federal land and rights-of-way for the construction and operation of the coal-fired Jim Bridger power plant in Wyoming. Plaintiffs' contentions (1) that the project's NEPA impact statement is inadequate, (2) that the EPA Administrator failed to carry out non-discretionary duties under §309 of the Clean Air Act, and (3) that the Administrator violated the Air Act by failing to prevent significant deterioration of air quality in the area are all in error. The court finds the EIS adequate under the reasonableness standard of National Helium v. Morton, and rules that EPA's comments on the draft EIS to the effect that major changes were necessary did not constitute a finding that the statement was "unsatisfactory" within the meaning of §309.The Administrator therefore acted properly in not publishing his comments or referring the project to the Council on Environmental Quality. The statutory language and legislative history clearly place the question of finding or refusing to find the EIS "unsatisfactory" within the full discretion of the Administrator, and he has no duty to publish or refer the matter to CEQ unless he makes such a finding. Plaintiffs' claims that EPA is illegally permitting significant deterioration of air quality to occur are held premature under the doctrine of primary jurisdiction. The Administrator is responsible for defining such deterioration and he has not yet issued significant deterioration regulations pursuant to Sierra Club v. Ruckelshaus. The action is dismissed.

Counsel for Plaintiffs
H. Anthony Ruckel
Sierra Club Legal Defense Fund, Inc.
508 Majestic Building
Denver, CO 80202

Allen W. Stokes
814 Majestic Building
Denver, CO 80202

Counsel for Federal Defendants
James L. Treece U.S. Attorney
Charles W. Johnson
William Hickey Asst. U.S. Attorneys
U.S. Courthouse
1929 Stout Street
Denver, CO 80202

David W. Miller
Department of Justice
Washington, DC 20530

Counsel for Intervenor-Defendants Pacific Power & Light Company and Idaho Power Company
Charles H. Habernigg
Richard D. Bach
Rives, Bonyhadi & Drummond
1400 Public Service Building
Portland, OR 97204

James E. Bruce
P.O. Box 70
Boise, Idaho 83707

Bryant O'Donnell
Richard W. Bryans
Lee, Bryans, Kelly & Stansfield
550 15th Street
Denver, CO 80202