# Citizens to Save Spencer County v. United States Environmental Protection Agency > Court of Appeals for the D.C. Circuit · March 27, 1979 · 600 F.2d 844 URL: https://www.frixlaw.com/law-library/cases/7839500 ## Case - **Full name:** CITIZENS TO SAVE SPENCER COUNTY v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Alabama Power Company, American Petroleum Institute, Sierra Club, BF Goodrich Company, American Paper Institute, Hoosier Energy Division, Mountain Fuel Supply Company, Montana Power Co., Natural Resources Council of Maine, Pittston Co., Intervenors ENVIRONMENTAL DEFENSE FUND, INC. v. Douglas M. COSTLE, Administrator, U. S. Environmental Protection Agency NORTHERN CHEYENNE TRIBE v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Montana Power Co., Intervenors ENVIRONMENTAL DEFENSE FUND, INC. v. Douglas M. COSTLE, Administrator, U. S. Environmental Protection Agency, Natural Resources Council of Maine, Appellants ENVIRONMENTAL DEFENSE FUND, INC. v. Douglas M. COSTLE, Administrator, U. S. Environmental Protection Agency, Respondent The BF GOODRICH COMPANY v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and Douglas M. Costle, Administrator, Respondents HAMPTON ROADS ENERGY COMPANY v. Douglas M. COSTLE, Administrator, Environmental Protection Agency, Respondent NORTHERN CHEYENNE TRIBE, Sierra Club, and Friends of the Earth v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent The MONTANA POWER COMPANY v. ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator, Respondents NORTHERN CHEYENNE TRIBE v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Pittston Company, Colorado Interstate Gas Co., Ideal Basic Industries, Inc., Intervenors NIAGARA MOHAWK POWER CORPORATION v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator, Respondents The PITTSTON COMPANY v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator, Respondents AMERICAN PAPER INSTITUTE and the National Forest Products Association v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator, Respondents MANUFACTURING CHEMISTS ASSOCIATION, Chemical Products Corporation, Dow Chemical Company, FMC Corporation, Monsanto Company, PPG Industries, Inc., Rohm and Haas Company, Stauffer Chemical Company, Union Carbide. Corporation, Allied Chemical Corporation v. ENVIRONMENTAL PROTECTION AGENCY, Respondent ALABAMA BY-PRODUCTS CORPORATION v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent KOPPERS COMPANY, INC. v. ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator of EPA, Respondents USM CORPORATION v. ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator, EPA - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** March 27, 1979 - **Citations:** 600 F.2d 844; 195 U.S. App. D.C. 30; 9 Envtl. L. Rep. (Envtl. Law Inst.) 20194; 12 ERC (BNA) 1961; 1979 U.S. App. LEXIS 15913 - **Precedential status:** Published - **Opinion:** Concurrence by Leventhal - **Judges:** III, Leventhal, Robinson, Wilkey - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7839500 ## How later opinions describe it (automated extraction) - describing advance payment program as a clear "departure" from, and "modification" of the "used and useful" principle ## Opinion text LEVENTHAL, Circuit Judge, concurring: I concur in Judge Wilkey’s opinion for the court, and take this occasion to express appreciation for the effort and skill with which he has wended his way through the labyrinth of the 1977 Amendments to the Clean Air Act under discussion. I add this note as a concurrence-for-emphasis. 1 When, as here, an agency has rule-making power, it is not confined to “procedural minutiae” but may take action that “conforms with the purposes and policies of Congress and does not contravene any terms of the Act.” 2 This includes an authority to adopt programs aimed at “maximum effectuation of Congressional objectives” and “maintaining the fairness, equity and efficiency” of the government’s program. 3 In this case, the Environmental Protection Agency has adopted a regulation that is reasonable in terms of furthering, to the maximum possible extent, the broad objectives of Congress; and it has not in this process violated any discernible Congressional command as to particulars, for the only provisions in the statute relating to such particulars contradict and therefore countermand each other. 4 The fruit of Judge Wilkey’s tilth in depth is an appreciation of the legitimacy and propriety of EPA’s disposition of a vexing problem. 5 When an agency shows good sense, “[cjourts are loath to say that good sense is not good law.” 6 . See Austin v. United States, 127 U.S.App.D.C. 180, 194 , 382 F.2d 129, 143 (1967). . Niagara Mohawk Power Corp. v. Federal Power Commission, 126 U.S.App.D.C. 376 , 381, 379 F.2d 153, 158 (1967). . Id. 126 U.S.App.D.C. at 382, 379 F.2d at 159 . . One is reminded of Eugene Field’s The Gingham Dog and the Calico Cat. The tension between the two animals culminates in these final lines of doggerel: “The truth about the cat and pup is this, They ate each other up.” . As a general rule, the “wise and sound course for the courts is to give to the terms of a statute their plain meaning, so long as the resultant effect is sensible and not in conflict with a discernible purpose.” Border Pipe Line Co. v. FPC, 84 U.S.App.D.C. 142 , 171 F.2d 149 (1948). Separation of powers considerations restrain a court, and Congress is usually available to correct an erroneous construction. In this case no “plain meaning” is discernible, clarification by Congress is not a realistic alternative, and the agency’s rule making is not constrained by the separation of powers considerations that inhibit a court. .Niagara Mohawk, supra, 126 U.S.App.D.C. at 383, 379 F.2d at 160 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7839500. Public record. Not legal advice.