ELR Citation: ELR 20407
No(s). 72-1575 (10th Cir. Apr 27, 1973)

Federal courts lack jurisdiction to review orders of the Environmental Protection Agency disapproving state implementation plans under the Clean Air Act. Such jurisdiction exists only after the Agency has approved a state plan, or promulgated a plan of its own. Publication of a notice of proposed rulemaking, suggesting provisions to replace disapproved portions of a state plan, does not constitute promulgation within the meaning of the statute. The limited right of review guaranteed by the Act is sufficient to preclude the courts from exercising jurisdiction pursuant to the Administrative Procedure Act. EPA may, without holding further hearings, reconsider and reverse an earlier decision approving portions of a state plan.

Counsel for Petitioner
Harry L. Bigbee
Richard N. Carpenter
P.O. Box 669M
Santa Fe, NM 87501

Counsel for Respondent
Bradford E. Whitman, Attorney
Kent Frizzell, Ass't Attorney General
Edmund B. Clark, Chief, Appellant Section Land & Natural Resources Div.
Eva R. Datz, Attorney
U.S. Department of Justice
Pennsylvania & 9th, NW
Washington, DC 20503

Counsel for Intervenor Respondent
Daniel H. Israel
Joseph J. Brecher
Native American Rights Fund
1506 Broadway
Boulder, CO 80302

Before Hill, Seth, and McWilliams, Circuit Judges.