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 rests on that basis. Clean Air Act, § 304(a)(2), 42 U.S.C. § 1857h-2(a)(2).

On the other hand, in Bunker Hill, 572 F.2d 1286 (9th Cir. 1977), just as in Kennecott I, 526 F.2d 1149 (9th Cir. 1975), the plaintiff company was pursuing its suit in the Circuit Court for review of the respective EPA Plan by objections to the Plan under § 307(b)(1), 42 U.S.C. § 1857h-5(b)(1), the proper basis for jurisdiction in objecting to the promulgation of the Plan by EPA, a discretionary duty. These suits were, therefore, properly cognizable in the Circuit Court rather than the District Court, both in Bunker Hill and in Kennecott I .

I agree with Bunker Hill, 572 F.2d 1286 , in its reference at page 1294, Footnote 13, to the effect that the District Judge may have used inappropriate and erroneous language when he “asseverated ‘that the state of Nevada was the proper authority to make [a finding of economic infeasibility] and that it is binding on the Administrator of the EPA.’ ” However, it should be noted here, in this Kennecott II case, the EPA and its Administrator actually refused even to consider economic infeasibility, claiming it to be irrelevant; and further admitted that the national ambient air quality standards were being met. In this posture and situation, the District Court had before it, in EPA’s refusal to approve the variance (revision), a clearly nondiscretionary act, and the District Court undeniably had jurisdiction under the Citizen Suit provision of the Clean Air Act, § 304(a)(2), 42 U.S.C. § 1857h-2(a)(2). It follows that the preliminary injunction granted by the District Court was appropriate and proper for the duration of the litigation.

This District Court preliminary injunction would give EPA an opportunity, if it should so change its mind, to take up and consider economic feasibility as it should have done in the first place, and at the same time to present to the District Court evidence on that fundamental facet of the case. Moreover, the District Court’s preliminary injunction would give EPA the opportunity to present evidence, if it should so change its mind, upon the other and second fundamental facet, namely, conformance of the variance (revision) with national ambient air quality standards under § 110(a)(2), 42 U.S.C. § 1857c-5(a)(2), even though it had already admitted conformance of the variance (revision) before the District Judge.

Each of these two questions, it is respectfully submitted, should not be either ignored as to the first, or admitted as to the second, as EPA has done, unless EPA really intends to do so at the trial of the ultimate issue of this litigation, to wit, the granting or nongranting of a permanent injunction. Our affirming and keeping in force the preliminary injunction of the District Judge would preserve the status quo pending the final solution of these issues in the full trial before the District Judge that would be still to come.

Secondly, however, I concur in the majority opinion’s Section IV in its discussion of the inapplicability of the Administrative *1359 Procedure Act, 5 U.S.C. § 701 et seq., as an independent source of jurisdiction, since I agree that Califano v. Sanders precludes such independent source of jurisdiction. Furthermore, I concur that the Mandamus Act, 28 U.S.C. § 1361 , is inapplicable because of the existence of alternative remedies. And I further concur that the issue of federal question jurisdiction need not be considered or decided.

Finally, I concur that we are living and writing in the year 1978 and that in 1977 the Clean Air Act was significantly amended. As the majority points out, “Circumstances have changed; we should not assume that both Kennecott and the EPA are unchanged.” Because of these amendments and changes which now mandate exclusive Court of Appeals review of “any final action of the Administrator,” we in the judiciary “should stand aside,” reasonably confident that either now or in due course the controversy before us is or will be moot, or in any event subject to judicial review of final EPA action.

Therefore, while I would not reverse the esteemed District Judge, I do concur in the disposition of this matter by joining with the equally esteemed Circuit Judges Sneed and Goodwin, in remanding the matter to the District Court for dismissal of the present cause of action herein.