Petition for Writ of Certiorari — Clean Air Coordinating Committee v. Roth Adam Fuel Co.

In Tue

~ | MICBAEL ROBAK, JR_¢:

Supreme Court nf the Ruited States

Ocroser Txrrm, 1971

No. 72-243

CLEAN AIR COORDINATING COMMITTEE,

Petitioner,

vs.

ROTH ADAM FUEL COMPANY,

CHICAGO COAL MERCHANTS ASSOCIATION,

ILLINOIS POLLUTION CONTROL BOARD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Ricuarp M. Kates

208 S. LaSalle Street

Suite 572

Chicago, Illinois 60604

Counsel for Petitioner

MIDWEST LAW PRINTING GO.

TABLE OF CONTENTS

OPINION BELOW ....... 1

JURISDICTION 2

QUESTIONS PRESENTED . 2

STATUTORY PROVISIONS INVOLVED ............ 3

STATEMENT OF THE CASE 7

REASON FOR GRANTING THE WRIT ................ 11

The Decision Below, Which Will Have Reoccur-

ring Effects, Misinterprets the Interrelationship

Between the Clean Air Act and the Anti-Injunc-

tion Statute Leading to an Emasculation of Im-

portant Sections of the Clean Air Act Designed

Specifically to Protect the Health of the Citi-

zens of This Country and to Cause State Imput

into the Federal Regulatory Plan 11

CONCLUSION 18

| APPENDIX—

(Opinion and Judgment of the U. S. Court of

Appeals for the Seventh Circuit) —........._... App. 1

ii

CrraTIoNs

Cases:

Amalgamated Workers v. Edison, 309 U.S. 261 ........ 13

Essex Systems v. Steinberg, 335 F. Supp. 298 (S.D.

N.Y.) 13

Leiter Minerals v. United States, 352 U.S. Be aes 12

N.L.EB. v. Nash-Finch, 404 U.S. 1381 17

Machesky v. Bizzel, 414 F. 2d 283 ff 13

Mitchum v. Foster, 32 L. Ed. 705 17

Studebaker v. Gittlin, 360 F. 2d 692 (C.A. 2) -... 12, 13

Tampa Phosphate v. Seaboard Coast Line, 418 F.

2d 387 (C.A. 2), cert. den. 397 U.S. OD cisncsnivesnion 13

United States v. Barrett, 442 F. 2d 642 (C.A. 4) 12

United States v. Louisiana, 265 F. Supp. 703 (E.D.

La.) . 12

Statutes:

28 U.S.C. $2283 3, 14.

42 U.S.C. §1857¢-4(b) (1) 3, 16

42 U.S.C. §1857¢-5(a) (1) , 3, 14

42 U.S.C. §1857¢-5(a) (2) (E) 4

42 U.S.C. §1857¢-5(c) 4

42 U.S.C. §1857d-1 5

42 U.S.C. §1857h-5(b) (1) 6, 14, 16

Miscellaneous:

S. Rep. No. 1214, 9ist Cong., 2d Sess. (1970) ........

11, 12, 13, 14

——————————————————————

In Tue

Supreme Court of the Auited States

Ocroser Term, 1971

No.

CLEAN AIR COORDINATING COMMITTEE,

Petitioner,

vs.

ROTH ADAM FUEL COMPANY,

CHICAGO COAL MERCHANTS ASSOCIATION,

ILLINOIS POLLUTION CONTROL BOARD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The petitioner Clean Air Coordinating Committee re-

spectfully prays that a writ of certiorari issue to review

the judgment and opinion of the United States Court of

Appeals for the Seventh Circuit entered in this proceeding

on July 3, 1972.

OPINION BELOW.

‘The opinion of the Court of Appéals, not yet reported,

appears in the Appendix hereto. No opinion was rendered

by the District Court forthe Northern District of Illinois,

Eastern Division.

wine

JURISDICTION.

The judgment of the Circuit Court of Appeals for the

Seventh Cireuit was entered on July 3, 1972. This Court’s

jurisdiction is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED.

1. Under the “expressly authorized by Congress” excep-

tion to the federal anti-injunction statute, may a federal

court stay a state court injunction of state action when

that state action was required by the Federal Clean Air

Act for a federal pollution control program?

Do the implementation plan requirements under the

Federal Clean Air Act constitute the assertion of a

“superior federal interest” which permits a federal

court injunction staying interference with such require-

ments by a state court action?

. Is there, as several circuits have held, standing under

the “superior federal interest” exception to the anti-

injunction statute for a private person acting strictly

for the public interest to protect the superior federal

interest?

iin

STATUTORY PROVISIONS INVOLVED.

28 U.S.C. §2283. Stay of State court proceedings

A court of the United States may not grant an injunc-

tion to stay proceedings in a State court except as express-

ly authorized by Act of Congress, or where necessary in

aid of its jurisdiction, or to protect or effectuate its judg-

ments. June 25, 1948, c. 646, 62 Stat. 968.

42 U.S.C. §1857c-4

(b) (1) National primary ambient air quality stand-

ards, prescribed under subsection (a) of this section shall

be ambient air quality standards the attainment and main-

tenance of which in the judgment of the Administrator,

based on such criteria and allowing an adequate margin

of safety, are requisite to protect the public health. Such

primary standards may be revised in the same manner as

promulgated.

42 U.S.C. §1857c-5

(a) (1) Each State shall, after reasonable notice and

public hearings, adopt and submit to the Administrator,

within nine months after the promulgation of a national

primary ambient air quality standard (or any revision

thereof) under section 1857c-4 of this title for any air pol-

lutant, a plan which provides for implementation, main-

tenance, and enforcement of such primary standard in each

air quality control region (or portion thereof) within such

State. In addition, such State shall adopt and submit to

the Administrator (either as a part of a plan submitted

vations

under the preceding sentence or separately) within nine

months after the promulgation of a national ambient air

quality secondary standard (or revision thereof), a plan

which provides for implementation, maintenance, and en-

forcement of such secondary standard in each air quality

control region (or portion thereof) within such State. Un-

less a separate public hearing is provided, each State shall

consider its plan implementing such secondary standard

at the hearing required by the first sentence of this para-

graph.

42 U.S.C. §1857c-5(a) (2)

(E) it contains adequate provisions for intergovern-

mental cooperation, including measures necessary to insure

that emissions of air pollutants from sources located in any

air quality control region will not interfere with the attain-

ment or maintenance of such primary or secondary stand-

ard in any portion of such region outside of such State or

in any other air quality control region;

42 U.S.C. §1857c-5

(c) The Administrator shall, after consideration of any

State hearing record, promptly prepare and publish pro-

posed regulations setting forth an implementation plan,

or portion thereof, for a State if—

(1) the State fails to submit an implementation plan

for any national ambient air quality primary or sec-

ondary standard within the time prescribed,

(2) the plan, or any portion thereof, submitted for

such State is determined by the Administrator not to

be in accordance with the requirements of this section,

or

-—

ee

(3) the State fails, within 60 days after notification

by the Administrator or such longer period as he may

prescribe, to revise an implementation plan as required

pursuant to a provision of its plan referred to in sub-

section (a) (2) (H) of this section.

If such State held no public hearing associated with respect

to such plan (or revision thereof), the Administrator shall

provide opportunity for such hearing with! such State

on any proposed regulation. The Administrator shall, with-

in six months after the date required for submission of

such plan (or revision thereof), promulgate any such reg-

ulations unless, prior to such promulgation, such State has

adopted and submitted a plan (or revision) which the Ad-

ministrator determines to be in accordance with the re-

quirements of this section.

42 U.S.C. §1857d-1. Retention of State authority

Except as otherwise provided in sections 1857f-6a, 1857f-

6c(c) (4), and 1857f-11 of this title (preempting certain

State regulation of moving sources) nothing in this chap-

ter shall preclude or deny the right of any State or political

subdivision thereof to adopt or enforce (1) any standard

or limitation respecting emissions of air pollutants or (2)

any requirement respecting control or abatement of air

pollution ; except that if an emission standard or limitation

is in effect under an applicable implementation plan or un-

der section 1857c-6 or section 1857c-7 of this title, such

State or political subdivision may not adopt or enforce

any emission standard or limitation which is less stringent

than the standard or limitation under such plan or section.

afte

42 U.8.C. §1857h-5

(b) (1) A petition for review of action of the Adminis-

trator in promulgating any national primary or secondary

section 1857c-7 of this title, any standard of performance

under section 1857¢-6 of this title, any standard under sec-

tion 1857f-1 of this title (other than a standard required

to be prescribed under section 1857f-1(b) (1) of this title),

any determination under section 1857f-1(b) (5) of this title,

any control or prohibition under section 1857f-6c of this

title, or any standard under section 1857f-9 of this title

may be filed only in the United States Court of Appeals

for the District of Columbia. A petition for review of the

Administrator’s action in approving or promulgating any

implementation plan under section 1857c-5 of this title or

section 1857c-6(d) of this title may be filed only in the

United States Court of Appeals for the appropriate circuit.

Any such petition shall be filed within 30 days from the

date of such promulgation or approval, or after such date

if such petition is based solely on grounds arising after

such 30th day.

allies

STATEMENT OF THE CASE.

On December 31, 1970 the Clean Air Act (42 U.S.C.

$1857 [1971]) was substantially revised because the air

pollution problem affecting human health was more severe,

more pervasive and growing at a more rapid rate than was

generally believed. (p. 1 of U.S. Senate Report 91-1196).

Because of the national scope of the problem, the federal

government was mandated to begin immediately a program

of promulgating national ambient air quality standards

for various pollutants. Each state, due to its proximity to

and knowledge of local pollution problems, was required to

supply imput into the federal program. Within nine months

after the promulgation of any federal ambient air quality

standard for any pollutant, each state had to submit to the

Federal Administrator of the United States Environmental

Protection Agency (“Federal Administrator”) its suggest-

ed plan as to how that air quality requirement could be

achieved within its borders. (42 U.S.C. §1857¢-5{a] (1),

1971). Because air pollution does not respect state borders

and because of the need for national standards, each state

plan had to contain provisions assuring that standards for

one state would not interfere with air quality in neighbor-

ing states. (42 U.S.C. §1857e-5(a] (2) [E}, 1971). Once the

Federal Administrator finalized an implementation plan

for a state, that state was forbidden from adopting emis-

sion standards or limitations which were less stringent than

the standards or limitations contained in the particular

finalized federal implementation plan. (42 U.S.C. §1857d-1,

1971). There had, in effect, been federal preemption of min-

imum standards. There was a provision for judicial review

only within thirty days after the Administrator had acted,

4

providing that such review was taken in the United States

Court of Appeals in which the state was located. (42 U.S.C.

§1857h-5[b) [1], 1971).

National ambient air quality standards were promulgated

for five pollutants including sulphur dioxide and partic-

ulate matter. Following requirements of federal law, the

quired by 42 U.S.C. §1857-e(a)(1). The Clean Air Coordi-

nating Committee (“Committee”), a sizable unincorporated

association devoted to air pollution control, participated

im the public hearing testifying as to what was necessary

for the protection of the health of its members.

After the hearings, as the State Board was about to

formalize its suggested implementation plan, for transmis-

use of solid fuel in the Chicago Major Metropolitan Area.

That state court suit was filed by respondents Roth Adam

Fuel Company and Chicago Coal Merchants Association

and alleged that a portion of the plan that the state would

suggest, in effect, banned the use of coal for residential

and commercial space heating in their marketing area.

plan had been communicated by the State Board to the

Federal Administrator, the state court action would have

prevented the formal passage and transmittal of portions

of the Illinois implementation plan to the Federal Adminis-

trator as required by federal law and would also prohibit

~~

such portions of the suggested plan from also being adopt-

ed as state regulations.

The Committee filed suit in the Federal District Court

seeking a temporary restraining order (until service was

obtained) and a preliminary injunction for a limited stay

of the state court proceeding and it was continually made

clear to the District Court that the Committe action was

limited and was only against that part of the state court

proceeding which prevented the passage and transmission

of the implementation plan for federal purposes. The Com-

mittee contended that to that limited extent, the state court

action was premature review of the federal implementation

plan for Illinois when such review was limited to review

in the United States Court of Appeals during a thirty day

period after the Federal Administrator had accepted, re-

vised, or replaced the plam that had been suggested by the

State Board. (42 U.S.C. §1857h-5(b] [1], 1971).

The Committee pleaded jurisdiction under 28 U.S.C.

§1331 due to a federal question and health damage in ex-

cess of the jurisdictional amount and, by amendment to the

complaint, also claimed jurisdiction under 28 U.S.C. §1337

because the Clean Air Act was passed in the exercise by

Congress of its commerce power and because failure of

compliance would cause harm to the health of the Commit-

tee’s members. The State Board and the United States

fendants. The United States Environmental Protection

Agency was dismissed as a defendant by agreement and

just before the District Court suit was stayed, the State

Board had indicated that it was going to seek dismissal as

a defendant and intervene as a plaintiff.

The Committee submitted an affidavit in support of its

position by an assistant professor of environmental and

—10—

occupational medicine stating that the delay caused by the

state court proceeding would delay federal regulations and

that delay would delay steps toward compliance and a

delay in steps for compliance would harm human health.

No counteraffidavits were presented.

The day after the complaint was filed in the Federal

District Court, Roth Adam Fuel Company filed a motion

to dismiss based on nonservice (service was shortly gained

and was thereafter not in question), and based on alleged

lack of federal jurisdiction supposedly because no federal

question was involved, and based on the federal anti-injune-

tion statute (28 U.S.C. §2283 [1971]), which allegedly bar-

red the relief sought.

Briefs were filed and arguments heard. The District

Court then ruled that it and the state had “concurrent juris-

diction” and that its hand “will be stayed until further

notice of this court”.

The Committee appealed and the Seventh Cireuit Court

of Appeals held that the appeal from the type of stay order

that had been entered was proper since that order “was

the gravamen of the plaintiff's statutory claim”. But the

Court of Appeals then held that the District Court should

have dismissed the suit because the relief sought was barred

by the federal anti-injunction statute. The Committee had

claimed that the anti-injunction statute was no bar to the

relief sought because a superior federal interest (a national

plan for control of air pollution) was involved and, in-

dependently, because the Clean Air Act expressly author-

ized such an injunction, for otherwise delays caused by

premature state court review would destroy time limits

under the act and thereby also would prevent required

state imput which could occur only within certain time

limits.

—])]—

REASON FOR GRANTING THE WRIT.

THE DECISION BELOW, WHICH WILL HAVE REOCCUR-

ING EFFECTS, MISINTERPRETS THE INTERRELATION-

SHIP BETWEEN THE CLEAN AIR ACT AND THE ANTI-

INJUNCTION STATUTE LEADING TO AN EMASCULATION

OF IMPORTANT SECTIONS OF THE CLEAN AIR ACT DE-

SIGNED SPECIFICALLY TO PROTECT THE HEALTH OF

THE CITIZENS OF THIS COUNTRY AND TO CAUSE STATE

IMPUT INTO THE FEDERAL REGULATORY PLAN.

The purpose of the revision of the Clean Air Act was

“to provide a much more intensive and comprehensive

attack on air pollution” and to “establish that the air is

a public resource and that those who would use that re-

source must protect it from abuse, to assure the protection

of the health of every American”. (S. Rep. No. 1214, 91st

Cong., 2d Sess. 4 [1970]). As was stated above, with stat-

utory references, under these amendments national air

quality standards were to be promulgated, there were to be

federally established interstate and intrastate air pollution

control regions, there was federal control over the final

content of implementation plans submitted by a state for

the implementation, maintenance, and enforcement of the

federal air quality standards within the state’s borders,

and there was federal pre-emption in each state of the

establishment of minimum limits and standards for emis-

sions once the Federal Administrator finalized the im-

plementation plan for a state. As was stated in the Senate

report:

“The Oommittee recognizes that the implementation

plan is the principal component of control efforts for

pollution agents for which national standards are es-

tablished. It is this program which must be effective

borders. The federal anti- statute was not meant

under such circumstances to prevent the stay by a federal

eourt of state court proceedings interfering with the supe-

rior federal interest. Letter Minerals v. United States, 352

court action under this principle to prevent interference

A private party has standing to properly assert the

“superior federal interest” exception to the anti-injunction

statute in the public interest as a support for the statutory

scheme on which the operation of the superior federal in-

terest is dependent. In Studebaker v. Gittlin, 360 F. 2d 692

(2nd Cir. 1962) Judge Friendly stated at page 696 that:

“If the policy of the anti-injunction statute is super-

—i3—

forcement here is by a private party rather than the

(federal) agency should not be controlling.”

See also Tampa Phosphate v. Seaboard Coast Line, 418 F.

2d 387 at 3934 (5th Cir. 1969), cert. den. 397 U.S. 910

(1970), reh. den. 397 U.S. 1030 (1970), Machesky v. Bizzel,

414 F. 2d 283 at 287-292 (5th Cir. 1969). It is true that

private parties have no standing to assert the “superior

public interest” in a private dispute removed from the

public interest (Essex Systems v. Steinberg, 335 F. Supp.

298 (S.D. N.Y., 1971]) and in cases in matters involving

the N.L.B.B. where that agency, to the exclusion of the

public, is by statute made the sole representative of the

public interest (Amalgamated Workers v. Edison, 309 U.S.

251 at 264-5 [1940] cited N.L.R.B. v. Nash-Finch, 404 U.S.

1381 [1971]), but these situations are not involved in the

present case. In this case the Committee is seeking to pro-

tect the statutory scheme in the public interest to protect

health and has standing to assert the superior federal in-

terest. In the Senate report on the 1970 amendments to the

Clean Air Act it is stated:

“The Courts have granted this review to those being

regulated and to those who seek ‘to protect tke pub-

lic interest in the proper administration of a regu-

latory system enacted for their benefit’.” (S. Rep. No.

1214, 9ist Cong., 2nd Sess. 41 [1970]).

Independent of the above legal arguments, there are

compelling reasons for granting this writ for the protec-

tion of time schedules for health protection measures and

to protect required state participation in the federal im-

plementation plan process. As was shown in a quotation

above, the implementation plan is the central process in

meeting the national ambient air quality requirements.

Such reasons and the provisions of the Clean Air Act bring

atin

this case within-the “expressly authorized by Congress”

exception to the anti-injunction statute. (28 U.S.C. §2283

[1971]). This is, of course separate from the “superior fed-

eral interest” exception to that statute.

Under the Clean Air Act, when a national ambient air

quality standard is promulgated, each state, with its fa-

miliarity with and proximity to pollution emission sources

within its borders, had a mere nine month period in which

it was required to start from scratch, consider all sources

emitting the pollutant within its borders, propose a sug-

gested plan for control of those sources to meet the new

federal standard, give the public time to evaluate the plan,

then hold public hearings on the suggested plan, review the

testimony of the hearings, make any revisions in the sug-

gested plan required by such testimony, formally pass on

its final suggested plan, and transmit it to the Federal Ad-

ministrator for his approval, modification, or complete

revision. (42 U.S.C. §1857¢e-5{a] [1], 1971). It is clear re-

garding implementation plans that Congress knew “the

bill would require a great deal in a short period of time ...

(and) The Committee bill would require that a rigorous

time sequence be met in the development of the implemen-

tation plan.” (S. Rep. No. 1214, 9ist Cong., 2nd Sess. 12

[1970]). On page 41 of that Senate report it was stated

that: ,

“In order to maintain the integrity of the sequences

provided throughout the Act, the Bill would provide

that any review sought must be filed within 30 days

of the challenged promulgation or approval” (em-

phasis added).

Such review could be obtained only in the United States

Court of Appeals. (42 U.S.C. §1857h-5[b] [1], 1971).

eile

Despite this, the Court of Appeals held that the limita-

tions on review only applied after the Federal Administra-

tor had acted finally on the implementation plan, and thus

there was no express authorization by Congress to stay

any state court proceedings under the Clean Air Act. If

there was no such congressional intent, then there could

be a state court injunction proceeding (providing the “su-

perior federal interest” would not warrant a stay of the

state court proceeding) which would, as it has done in this

case, delay state action on formally suggesting an im-

plementation plan to the Federal Administrator. Such state

trial court action is subject to state appellate court review

which is then subject to state supreme court review and

even possible review in this Court. When Congress gave

states a nine month period to submit suggested implemen-

tation plans, as it was shown above, Congress knew that

the states would be hard pressed to do the necessary tech-

nical work in that nine month period. With this tight

schedule due to technical work, it is obvious that Congress

did not intend that the state’s portion of the federal im-

plementation process would be subject to the various state

trial and appellate court levels of review before finalization

and transmission for federal review. Such state court re-

view, if it did occur, would, as in this case, be instituted at

the end of the nine month period and, conservatively speak-

ing, could add at least a year to the process. Thus, any dis-

satisfied person or company could by state court review

prevent the submission of a state’s suggested implemen-

tation plan for consideration of the Federal Administrator

and destroy the state’s required imput into the process

since if the state plan is not formally transmitted in final

form within the nine month period, the Federal Adminis-

trator is required to promulgate its own plan or portions

—16—

thereof for the state and that process adds time to the

process of achieving the final plan. Further, since the Court

of Appeals decision permitted review before final action

of the Federal Administrator’s final action, the federal

proposal of a plan for promulgation could also be subject

to an injunction suit and appellate review of that suit, fur-

ther delaying the finalized plan.

All of this was clearly not intended by Congress. Con-

gress clearly intended that the state involved with its

knowledge of the pollution sources within its borders

should meet the requirement that it submit a suggested

plan to control those sources to meet federal standards.

This is especially true since, as was shown above, the fed-

eral implementation plan would pre-empt the states min-

imum implementation standards. Congress also clearly in-

tended that its deadlines under the Act be met. This is made

even clearer by the facts (1) that what would be delayed

by state court review would include standards which were

“requisite to protect public health” (42 U.S.C. §1857c-4[b]

[1], 1971); (2) that such state court review would be pre-

mature and improper by any standard because it was re-

view of a nonfinalized plan which was subject to change

by the Federal Administrator; and (3) that any person in

the large group affected by the plan who had objections

had the right to federal court review after the Federal Ad-

ministrator finalized the plan. (42 U.S.C. §1857h-5[b] [1],

1971).

.. “expressly authorized by Congress” exception to the

ti-injunction statute applies when “an Act of Congress

al have created a specific and uniquely federal right or

remedy (in this ease it involves the achievement of national

air quality standards) enforceable in a federal court of

equity, which could be frustrated if the federal court were

= =

not empowered to enjoin a state court proceeding”. Mitch-

um v. Foster, 40 U.S.L.W. 4737, (June 19, 1972). The fed-

eral act in this case could only be given its intended scope

only by a stay of a state court proceeding for said proceed-

ing destroys required state imput into the federal reg-

ulatory scheme because it causes the timetables for such

imput to be violated involuntarily by states causing sub-

stituted imput; and also because it ruins federal timetables

designed to protect human health. The intent of Congress

is clear and the exception to the anti-injunction statute ex-

pressly applies. It is to be noted that it is no bar to such

application that the Clean Air Act does not expressly refer

to the anti-injunction statute or does not expressly author-

ize an injunction of a state court proceeding (Mitchum v.

Foster, swpra) or that the injunction power to prevent in-

terference is implied and not stated (N.L.R.B. v. Nash-

Finch, 404 U.S. 1381 [1970]). The Committee has standing

to rely on this exception under basic standing concepts be-

cause it participated in the hearing that was enjoined from

reaching a conclusion, because its members’ health will be

harmed by that injunction and because its members came

within the ambit of the protection intended by the statute.

The situation in this case is of extreme importance since

it involves a problem that can and will repeat itself. New

air quality standards for pollutants found in coal such as

mercury and for pollutants found in many other substances

will require more implementation plans, as will changes in

existing air quality standards. The grant of this writ is

necessary so as to prevent a single dissatisfied person or

company from halting required state imput into the federal

implementation plan process and to prevent the delaying

of deadlines to the detriment of human health as well as

to the detriment of industry which needs lead time after

a plan is developed to comply with it.

=

CONCLUSION.

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Seventh Circuit.

Respectfully submitted,

Rionarp M. Kates

208 S. LaSalle Sireet

Suite 572

Chicago, Illinois 60604

Counsel for Petitioner

APPENDIX

: Sin the

Gnited States Court of Appeals

Fer the Seventh Circuit

Szrremsre Term, 1971 Arran. Session, 1972

No. 72-1304 \ Appeal from the

Am Coonpmmatma Com- nited States Dis-

"tem eS N nt " Diste t

3 Plaintiff-Appella orthern District

, mig . of Illinois, Eastern

y, Division.

No. 72 C 711

Rorn-Apam Fve. Company, et al., Wiriusm J. Lyxcn,

Defendants-Appellees. } Judge.

Arcvurp June 12, 1972—Dxcwep Jury 3, 1972

Before Swrozrr, Chief Judge, Famcump, and Cum-

minas, Circuit Judges.

Cummanas, Circuit Judge. According to the verified

complaint, plaintiff is an association whose membership

consists of several “groups” and more than one thousand

individuals. Its purpose is the promotion of air pollution

control. Defendant Roth-Adam Fuel Company is a coal-

selling corporation doing business in Illinois, and defen.

dant Chicago Coal Merchants Association is a voluntary

association representing retailers engaged in the sale of

coal in Illinois. The other two defendants are the Illinois

Pollution Control Board and the United States Environ-

mental Protection Agency, both governmental agencies

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pes defendants res out, the =

in ion was prom a state agency, viz., the

Illinois Pollution Control Board und i

Environmental Protection Act (Ill. Rev. Stat. 1971, ch.

111-%, §§ 1001 et seg.). That regulation appears to be

reviewable under §4 1029 and 1041 of that statute, pur-

suant to .the a of the Illinois Administrative

Review Act (Ill Rev. Stat.

Act definitely prohibiting such review. 42 U.S.C. § 1857

trator’s action in or pet ing any imple-

' mentation plan r 1857e-5 * * °,.” but says

by the state court suit.

Since our ruling is based on the Federal Anti-injunction

Act, we need not consider the parties’ other arguments

with respect to the district court’s jurisdiction. It is not

alleged that the Administrator of the Environmental

Protection Agency has yet approved or promulgated any

implementation plan for Illinois, so that we as yet have

no jurisdiction to review his action under 42 U.S.C.

§ 1857h-5(b) (1).

Treating the order appealed from as a denial of an

injunction, it is affirmed. Since 28 U.S.C. § 2283 forbids

the relief sought, the district court is directed to dismiss

7 i |

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