# Sierra Club v. Anne M. Gorsuch, Administrator, Environmental Protection Agency, American Mining Congress, Intervenors > Court of Appeals for the D.C. Circuit · November 2, 1983 · 715 F.2d 653 URL: https://www.frixlaw.com/law-library/cases/9471048 ## Case - **Full name:** SIERRA CLUB, Petitioner, v. Anne M. GORSUCH, Administrator, Environmental Protection Agency, Respondent, American Mining Congress, Et Al., Intervenors - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** November 2, 1983 - **Citations:** 715 F.2d 653; 230 U.S. App. D.C. 179 - **Precedential status:** Published - **Opinion:** Dissent by MacKINNON - **Judges:** Bazelon, Ginsburg, MacKINNON - **Cited by:** 41 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/9471048 ## Opinion text MacKINNON, Senior Circuit Judge, dissenting: I agree with the statement in the majority opinion that “we cannot say at this point that the agency has acted arbitrarily or capriciously.” Maj. Op. at 661. Implicit in that determination is the fact that the agency has not taken final action on strip mines. I thus find under section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607 (b)(1), 1 that this court lacks jurisdiction because there is no final action for this court to review. The Administrator has not promulgated any national regulation or taken any “final action” under the Act with respect to strip mines. The contention by appellant that this court should review the situation because it includes an alleged decision not to regulate strip mines is based on an incorrect fact, but in any event the cause is obviously not ripe for review. There is absolutely nothing in the record to support a statement that the Administrator has made any such decision. Neither does the record indicate that the Administrator has unreasonably delayed rule making with regard to strip mines. Without any “final action” in the matter, and an unripe record, this court is without jurisdiction. This is another case where petitioners have jumped the gun again. See Kleppe v. Sierra Club, 427 U.S. *662 390 , 96 S.Ct. 2718 , 49 L.Ed.2d 576 (1976), reversing and remanding Sierra Club v. Morton, 514 F.2d 856 (D.C.Cir.1975). Petitioners’ impatience with agency action cannot confer jurisdiction. The variations in the location, character and operation of strip mines throughout the United States and the number of such mines is so great that it is very reasonable for the EPA to require complete data before it embarks on imposing controls and regulations in what is essentially a new field, i.e., the nationwide regulation of the emission of dust (fugitive emissions) from strip mines. The EPA is to be commended for not acting arbitrarily and capriciously and for not proceeding on incomplete and inadequate information. I would accordingly dismiss the petition for review. When the EPA makes a final decision in the matter, if petitioners are dissatisfied, they can bring the matter before the court in the proper manner as a separate case. There is absolutely no justification whatsoever for this panel to reach out to acquire jurisdiction of whatever case, if any, may subsequently arise on the merits with respect to the regulation of fugitive emissions from strip mines. The consideration we have given to this case has been devoted primarily to procedural issues and that does not justify the continuation of jurisdiction in the panel. If ever another appeal eventuates, it will be from some final action of the Administrator that will undoubtedly include some regulations and a relevant record. If petitioners then have no complaint against those regulations or the action of the Administrator, there should not be any appeal. And if they do it will be essentially a different case with a different record on substantially different issues than what is presently before us. Regardless of how much the majority might like to exercise judicial jurisdiction in that case, nothing they have done in this case justifies their assignment of that case to themselves on a record that would undoubtedly present far different facts and issues. Thus, in the interim we should not carry this case on our pending docket. I thus respectfully dissent to the extent above stated from the panel’s refusal to dismiss the appeal and from their unsupportable assumption of the right to exercise jurisdiction of any case that might subsequently develop for determination on the merits. The court, regardless of the action it takes, should not remand the record, but should couch its decision in a final judgment on the case that is before us. I thus respectfully dissent to the extent above stated. . The Clean Air Act, 42 U.S.C. § 7607 (b)(1), provides: A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard ... or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this Act may be filed only in the United States Court of Appeals for the District of Columbia.... Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register .... (Emphasis added). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471048. Public record. Not legal advice.