Kennecott Copper Corporation, Nevada Mines Division, McGill Nevada v. Douglas M. Costle, Administrator, Environmental Protection Agency

This appeal requires us to determine whether a district court under the circumstances of this case has jurisdiction to grant a preliminary injunction requiring the Environmental Protection Agency (EPA) to approve a variance from the requirements of a State Implementation Plan (SIP) properly promulgated under the terms of the Clean Air Amendments of 1970 (formerly 42 U.S.C. §§ 1857 et seq., currently 42 U.S.C. §§ 7401 et seq.; citations generally will be to the sections of the 1970 Amendments rather than to the codified version). In view of the procedural posture of this case and the law applicable to it, we hold that the district court either lacked power to grant, or should not have granted, such relief. We thus set aside the district court’s preliminary injunction and remand this case to the district court, with instructions to enter an order dismissing the action.

I.

Procedural History.

This action, which we designate as Ken-necott II, is merely the latest stage in a continuing battle between Kennecott Copper Company and the EPA as to the appropriate methods of pollution control to be employed at Kennecott’s smelter in McGill, Nevada. A brief review of the procedural history…

dissenting in part and concurring in part:

In the first place, I note that in Section III, the majority opinion takes up the issue of whether the EPA Administrator’s duty vis-a-vis Kennecott was discretionary or nondiscretionary (“mandatory”); and concluding that it was discretionary, it reverses the District Judge’s grant of the preliminary injunction, 424 F.Supp. 1217 (D.Nev. 1976) (Kennecott II), and orders the case dismissed. With the majority reasoning on this issue, I respectfully must disagree and, therefore, enter my dissent.

Here, in Kennecott II, EPA concedes that in taking up and considering the variance (revision) of the EPA Plan, it did not consider economic infeasibility which EPA claims was irrelevant. 424 F.Supp. at 1228 . EPA further concedes that the variance (revision) did meet the national ambient air standards. Id. at 1224 . Therefore, EPA had the nondiscretionary duty to approve the variance (revision). Clean Air Act, § 110(a)(3)(A), 42 U.S.C. § 1857c-5(a)(3)(A). And Kennecott, by the same token, had the legal right to utilize the Citizen Suit provision as the jurisdictional basis for its suit, and the preliminary injunction in the District Court correctly…

572 F.2d 1349 11 ERC 1585 , 8 Envtl. L. Rep. 20 ,373 KENNECOTT COPPER CORPORATION, NEVADA MINES DIVISION, McGILL, NEVADA, Appellee, v. Douglas M. COSTLE, Administrator, Environmental Protection Agency, Appellant. No. 77-1359. United States Court of Appeals, Ninth Circuit. April 5, 1978. Jerome Ostrov (argued), Washington, D. C., for appellant. Alfred V. J. Prather (argued), of Prather, Seeger, Doolittle, Farmer & Ewing, Washington, D. C., for appellee. Appeal From the United States District Court for the District of Nevada. Before GOODWIN and SNEED, Circuit Judges, and HAUK, * District Judge. SNEED, Circuit Judge: 1 This appeal requires us to determine whether a district court under the circumstances of this case has jurisdiction to grant a preliminary injunction requiring the Environmental Protection Agency (EPA) to approve a variance from the requirements of a State Implementation Plan (SIP) properly promulgated under the terms of the Clean Air Amendments of 1970 (formerly 42 U.S.C. §§ 1857 et seq., currently 42 U.S.C. §§ 7401 et seq.; citations generally will be to the sections of the 1970 Amendments rather than to the codified version). In view of the…