Pacific Legal Foundation v. Douglas M. Costle

Plaintiffs-appellants, a nonprofit law firm and several California state legislators, appeal from the denial of their motion for a preliminary injunction to restrain the defendant-appellee from enforcing a ban on the construction or modification of certain sources of air pollution in California and from penalizing the state for its failure to enact anti-pollution laws in accordance with agency demands. Appellants based this motion on allegations that the Environmental Protection Agency (EPA) has failed to perform its nondiscretionary duty to promulgate regulations that would obviate the need for the construction ban, and that the agency is using unconstitutional methods to coerce the California legislature to act. The district court denied the motion. It held that it had no jurisdiction to consider the statutory claim and that the constitutional claim was almost certainly without merit. Our jurisdiction rests on 28 U.S.C. § 1292 (a)(1) (1976). We affirm the district court’s denial of the motion.

The Clean Air Act, 42 U.S.C. § 7401 et seq. (Supp. II 1978), requires each state to draw up for the EPA’s approval a state implementation plan (SIP), or a revision in the light…

627 F.2d 917 15 ERC 1001 , 10 Envtl. L. Rep. 20 ,719 PACIFIC LEGAL FOUNDATION et al., Plaintiffs-Appellants, v. Douglas M. COSTLE et al., Defendants-Appellees. No. 80-4108. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 17, 1980. Decided Aug. 12, 1980. Rehearing Denied Oct. 2, 1980. John H. Findley, Sacramento, Cal., argued, for plaintiffs-appellants. Joshua I. Schwartz, Washington, D.C., argued, Dirk D. Snel, Atty., Washington, D.C., on brief, for defendants-appellees. Appeal from the United States District Court for the Eastern District of California. Before SNEED and POOLE, Circuit Judges, and ZIRPOLI * , District Judge. OPINION SNEED, Circuit Judge: 1 Plaintiffs-appellants, a nonprofit law firm and several California state legislators, appeal from the denial of their motion for a preliminary injunction to restrain the defendant-appellee from enforcing a ban on the construction or modification of certain sources of air pollution in California and from penalizing the state for its failure to enact anti-pollution laws in accordance with agency demands. Appellants based this motion on allegations that the Environmental Protection Agency (EPA) has failed…

concurring:

I concur in the judgment affirming the district court’s denial of appellants’ motion *919 for a preliminary injunction, but on a somewhat different basis.

With respect to their challenge to the construction moratorium, I would affirm on the ground that the district court correctly concluded that it lacked jurisdiction over that challenge, 1 substantially for the reasons stated in that court’s opinion. The “citizen suit” to compel performance of the EPA’s purportedly nondiscretionary duty to promulgate a SIP for California, for which jurisdiction was asserted under 42 U.S.C. § 7604 , was merely incidental to the challenge to the construction ban, at least at this stage of the proceedings. Whether the ban was imposed by the interpretive rule or the EPA telegram to the state legislators, appellants were seeking review of either the promulgation of a portion of an implementation plan or other “final action” of the Administrator within the meaning of 42 U.S.C. § 7607 (b)(1), as broadly defined in Harrison v. PPG Industries, Inc., - U.S. -, 100 S.Ct. 1889 , 64 L.Ed.2d 525 (1980). Jurisdiction over this challenge, therefore, was exclusively in the court of appeals under…