Petition for a Writ of Certiorari — City of Highland Park v. Train

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OCT 22 IIS

IN THE

a RODAK, JR..CLERK

Supreme Court of the United states ———.

OcToOBER TERM, 1975

Ne. 75-610

THE CITY OF HIGHLAND PARK, ILLINOIS, etc., ET AL.,

Petitioners,

vs.

RUSSELL E. TRAIN, eTC., ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT.

JosEPH V. KARAGANIS,

SANFORD R. GAIL,

KaraGanis & Gait LTp.,

180 North LaSalle Street,

Chicago, Illinois 60601,

Counsel for Petitioners.

Of Counsel:

THoMaS H. CoMPERE,

BERLE L. SCHWARTZ,

1707 St. Johns Avenue,

Highland Park, Illinois 60035.

October, 1975.

Gunthorp-Warren Printing Company, Ch 2 @ Financial ¢

INDEX.

PAGE

I I nics o-eh.d eka 6 ER KAR DRA EWE REDS 1

PO A 8 i 60.0 0:04 4's 0a SKM pe RSE RAS be 3088 2

Question Presented ............. ca Ca uke ee cee 2

ee rg ee Tee See St ee ee ee 3

a ee ee ee re eer 3

Reasons for Granting the Writ .................-0085 10

1. The Decision Below Conflicts with Decisions of the

Supreme Court as to the Exclusivity of a Statutory

Jurisdictional Grant and the Preclusion of Traditional

Bases of Subject Matter Jurisdiction............. 10

2. The Decision Below Conflicts with the Decisions of

Other Courts of Appeals as to the Exclusivity of

42 U. S. C. § 1857h-2 as a Basis of District Court

Subject Matter Jurisdiction. .............000008. 14

3. The Decision Below Conflicts with the Decision of

Other Courts of Appeals as to the Appropriate Forum

—District Court or Court of Appeals—to Seek

Review of the Administrator's Failure to Include

Statutorily Mandated Components in Assure aes

WE PINs 6 0 6.0 ks 604.0 ba we RRC o ade ne tes 15

4. The Decision Below Creates Significant Problems

Regarding the Subject Matter Jurisdiction of the

Federal Courts and the Administration of Judicial

Review Under the Clean Air Act.............. 16

CRIN Sat Sac ie. a beacon SCTE vah easly s 17

Appendix (under separate cover)

CITATIONS.

Cases.

Abbott Laboratories v. Gardner, 387 U. S. 136 (1967)

PST SG RY oR peR AS EES ETT OE HCE CERETR TET 8, 12, 13, 14, 17

WDTS) nk 6 oie 65 66 sis oes chose ces eesti eciveces 4, 16

Bell v. Hood, 327 U. S. 678 (1946) .....6. eee eeees 12

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 409 F. 2d 718 (2nd Cir. 1969),

revd. on merits 403 U. S. 388 (1971) ...........45- 12

City of Highland Park v. Train, 374 F. Supp. 758 (N. D.

WERT aa ok rca we bah ces ceases tensatecuass 2,7,9

City of Highland Park v. Train, 519 F. 2d 681 (7th Cir.

SOT ig oi cia Kine 0 556 5 00 ag 84080008500 000s 1,4,9

Fri v. Sierra Club, 412 U. S. 541 (1973) ........-005- 4,7

Montana-Dakota Co. v. Pub. Serv. Co., 341 U. S. 246

CIDGE Tc cab cassb we sgh eset ecesigeteengnnesas 12

Natural Resources Defense Council v. Environmental Pro-

tection Agency, 481 F. 2d 116 (10th Cir. 1973) ...... 10

Natural Resources Defense Council v. Train, 510 F. 2d 692

(D. C. Cir. 1975) 2. ccscccsccnvccces 8, 9, 11, 12, 14, 17

Natural Resources Defense Council v. Environmental Pro-

tection Agency, 512 F. 2d 1351 (D. C. Cir. 1975). .4, 5, 16

Natural Resources Defense Council v. Train, 519 F. 2d

287 (D. C. Cir. 1975) .....-eeeeeeeeee 4, 5,8, 9, 14, 15

Oljato Chapter of Navajo Tribe v. Train, 515 F. 2d 654

(D. C. Cir. 1975) 2. cc ccccccccccscneccsccccces 8, 14

Peoples v. United States Dep’t. of Agriculture, 427 F. 2d

561 (D. C. Cir. 1970) 2... cece cece eee eee e ences 12

eee

Pickus v. United States Board of Parole, 507 F. 2d 1107

Gere Ser AR PEE bane FEES Soe webu wk cso a-sewe 12

Powell v. McCormack, 395 U. S. 486 (1969) .......... 12

Rusk v. Cort, 369 U. S. 367 (1962) .......... 8, 13, 14,17

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U. S.

Me MEE 5 When i KSb RCE HSER 0 hs 85 hd keke a 12

Sierra Club v. Train, ......... F. Supp. ........... (D.C. C.C. A.

Se MESEED AG CAA Neneh meedtp ik ies dae ee ens 4

Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D. D. C.

1972), aff'd. per curiam, 4 E. R. C. 1815 (D. C. Cir.

1972), aff'd. by an equally divided Court sub nom. Fri

v. Sierra Club, 412 U. S. 541 (1973) ............ 4,7,15

The Fair v. Kohler Die Company, 228 U. S. 22 (1913) .. 12

Wheeldin v. Wheeler, 373 U. S. 647 (1963) .......... 12

Statutes.

S'S Soe bf arene 2, 3, 6, 8, 10, 12, 14

DM eee Us Aa Ohh 6h 60400 Check Mee be Venen B33

eA ED 2 oo iis banca gunn bu cekwewe 2

es ee RE cn a%scinkstbdunas 2, 3, 5, 6, 8, 10, 12, 14

PERE i SE 8 AM Aas ckbewede tes 2, 3, 5, 6, 8, 10, 14

Pe ey ee A Whe hae CA o's 05 dedi ee be ed ka 5, 11, 14

eT Oe Sb ka ss Os bORWEOREA NOG ER Cea ka kan 5

ee el Oe OOO och ds Cenk ib ck x icenbicn 2,3

42 U.S. C. § 1857h-2....2, 3, 5, 6, 8, 9, 10,11, 12, 13, 14, 15

ee OAs ak IS Oh.k A 06s oe xkdawd 2, 3, 7, 16

Regulations.

39 Fed. Reg. 7270 (February 25, 1974) ............. 6

39 Fed. Reg. 42510 (December 5, 1974) ........... 4,7, 15

IN THE

Supreme Court of the Gnited States

OcTOBER TERM, 1975

No. .....

THE CITY OF HIGHLAND PARK ILLINOIS, EtTc., ET AL.,

Petitioners,

VS.

RUSSELL E. TRAIN, ETC., ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

The Petitioners, The City of Highland Park, Illinois, The

Village of Deerfield, Illinois, Tri-Suburban Defense Council,

Franklin Cole, Joan Cole, Lesley Kodner, Denise Kodner, James

Frankel, Florence Frankel, Andrew Taft, Katherine Taft, Thomas

Nathan, Louise Nathan, Ralph L. Brill, Judith Brill, Ludoslaw

Tybur, Kay Tybur, respectfully pray 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 proceed-

ing on July 24, 1975.

OPINIONS BELOW.

The modified opinion of the Court of Appeals for the Seventh

Circuit entered July 24, 1975 (A10) is reported at 519 F. 2d

681 (7th Cir. 1975). The court’s original opinion, entered

June 10, 1975 (A45), is unreported. The opinion of the

United States District Court for the Northern District of Illinois,

Eastern Division (A71), dismissing the action is reported at

374 F. Supp. 758 (N. D. Ill. 1974).

JURISDICTION.

The judgment of the Court of Appeals for the Seventh Circuit

was entered on June 10, 1975 (A43). A timely petition for re-

hearing and suggestion for en banc hearing was denied and the

Court modified its previous opinion on July 24, 1975 (A39).

This petition for certiorari was filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S. C. § 1254(1).

QUESTIONS PRESENTED.

1. Whether § 304 of the Clean Air Act, 42 U. S. C.

§ 1857h-2, is the exclusive basis of district court subject matter

jurisdiction to remedy the Environmental Protection Agency

Administrator’s failure to perform a statutorily mandated duty

under the Clean Air Act, 42 U. S. C. § 1857 et seq.?

2. Whether the 60 day notice prerequisite for actions under

§ 304 is a bar to subject matter jurisdiction in actions brought

under the general federal question statute (28 U. S. C. § 1331);

the statute creating subject matter jurisdiction to compel an

officer of the United States to perform his duty (28 U. S. C.

§ 1361); and the Administrative Procedure Act (5 U. S. C.

§§ 701-706) where § 304(e) specifically preserves preexisting

statutory and common law causes of action?

3. Whether the Administrator’s failure to include statutorily

mandated elements in his promulgation of a regulation under

the Clean Air Act renders such failure reviewable in the district

court (under either 42 U. S. C. § 1857h-2, 28 U. S.C. § 1331,

28 U. S. C. § 1361, 5 U. S. C. §§ 701-706) or in the Court

of Appeals (under 42 U. S.C. § 1857h-5(b)(1)) or both?

Yo OCs Tea

BO AE, vi oss : ALLER LNAI EN AILS RL BOTTI LT RINDI TERRE 0 9

STATUTES INVOLVED.

This case involves the jurisdictional grants for judicial review

under the Clean Air Act of 1970—Section 304, 42 U. S. C.

§ 1857h-2 (A4) and Section 307, 42 U. S. C. § 1857h-5 (A7)

—and subject matter jurisdiction under 28 U. S. C. § 1331

(A4), 28 U. S. C. § 1361 (A4) and the provisions of the

Administrative Procedure Act, 5 U. S. C. § 701 et seg. (A1).

STATEMENT OF THE CASE.

The controversy presented to this Court involves the “juris-

dictional badminton” played by the United States Environmental

Protection Agency, the Circuit Courts of Appeal and the dis-

trict courts in applying the jurisdictional grants created by the ;

Clean Air Act, 42 U. S. C. § 1857 et seq. and the preexisting

jurisdictional grants under 28 U. S. C. § 1331, 28 U. S. C.

§ 1361 and 5 U. S. C. §701 ef seq. Instead of administering a

system for judicial review designed to give swift and clear adjudi-

cation of substantive rights and obligations under the statute,

the lower courts have become bogged down in a series of juris-

dictional inconsistencies. These inconsistencies have hamstrung

the Congressional desire to achieve air quality on an expeditious

schedule and have left persons injured by EPA actions or failures

to act asking the jurisdictional analog to the Abbott and Costello :

refrain—“Who’s on first?”

Though there are a number of variations, the basic problem

stems from promulgation of regulations by the Administrator in :

which the Administrator fails to include statutorily mandated q

components. Under § 307 of the Clean Air Act, 42 U. S. C. ;

§ 1857h-5(b) (1), judicial review of promulgated regulations is !

directly in the United States Court of Appeals for the “appro-

priate circuit”. Under § 304 of the Clean Air Act, 42 U. S. C.

§ 1857h-2(a), the Administrator’s failure to perform a non-

discretionary duty can be reviewed by an action against the §

Administrator in the district court.

RSE eR oe RNC INC Te eee

Since a promulgation of regulations which fails to include

statutorily mandated components necessarily involves both pro-

mulgation and failure to act, the courts have demonstrated a

schizophrenic reaction to attempts to seek judicial review either

in the district court or the court of appeals. Indeed, the Circuit

Court of Appeals for the District of Columbia has suggested that

the Administrator’s failure to include statutorily required com-

ponents in the regulations he promulgates may be reviewable

either in the district court (§ 304) or the court of appeals

(§ 307). See Natural Resourc.. Defense Council vy. Environ-

mental Protection Agency, 512 F. 2d 1351, 1356-1357 (D. C.

Cir. 1975). At least one other circuit has held that once a

regulation is promulgated, all challenges, including failures to

include certain components, should be heard by the appellate

court. Anaconda v. Ruckelshaus, 482 F. 2d 1301, 1304 (10th

Cir. 1973). The Seventh Circuit in the decision below held

that despite the Administrator’s promulgation of what purported

to be regulations governing significant deterioration (39 Fed.

Reg. 42510, December 5, 1974) and despite the Administrator's

claim that the sole method of judicial review for deficiencies

in those regulations was in the court of appeals, the exclusive

avenue of review was in the district court. City of Highland Park

v. Train, 519 F. 2d 681, 697 (7th Cir. 1975)* (A37).

This confusion over jurisdiction between district court and

appellate court has been compounded by the inconsistent posi-

tions taken by the Administrator in jurisdictional disputes in

Clean Air Act cases and almost identical jurisdictional disputes

1. Ironically, the district judge who first ordered the Admin-

istrator to promulgate significant deterioration regulations has held

tions vests jurisdiction exclusively in the court of appeals. Order of

Judge John H. Pratt, November 15, 1974, in Sierra Club v. Train,

coins F. Supp. ........ (D. D. C. C. A. No. 1031-72). It was Judge

Pratt who originally entered the order requiring promulgation of

significant deterioration regulations. Sierra Club v. Ruckelshaus, 344

under the similar judicial review provisions of the Federal Water

Pollution Control Act Amendments of 1972.? In some cases the

Administrator has argued that omissions or failures to include

statutorily required components in regulations should be brought

in the district court® and in other cases the Administrator has

argued that such omissions must be challenged exclusively in

the appellate court.‘

This “jurisdictional badminton”® game reached its zenith in

the instant case. Petitioners brought suit in the district court

against the Administrator and a group of shopping center

developers seekings a mandatory injunction requiring the Ad-

ministrator to promulgate “complex source” regulations and

significant deterioration regulations relating to complex sources.

“Complex” or “indirect source” are terms used to describe facili-

ties which don’t emit pollutants themselves but which attract

significant vehicle congestion and thus cause significant vehicular

pollution. The Administrator has repeatedly stated that such

sources are significant health hazards and that preconstruction

permit review is the only rational method of changing traffic de-

sign or location to avoid traffic congestion. Petitioners sought a

preliminary injunction against the developers asking that con-

struction be halted until the regulations had been applied to

the proposed center. Promulgation of the regulations was long

overdue under the statutory timetable mandated by the Clean

Air Act.

Jurisdiction in the district court was predicated on 28 U. S. C.

§ 1331, 28 U. S. C. § 1361, § 304 of the Clean Air Act, and

2. § 505 (district court, 33 U. S. C. § 1365) and § 509 (appel-

late court 33 U. S. C. § 1369).

3. N.R. D.C. v. E. P. A., 512 F. 2d 1351, 1357 (D. C. Cir.

1975).

4. Brief of Federal appellees in the Seventh Circuit in the instant

case, City of Highland Park v. Train, at p. 12: See also Natural Re-

sources Defense Council v. Train, 519 F. 2d 287, 290 (D. C. Cir.

1975).

5. See the dissenting opinion of Judge Wright in N. R. D. C. v.

E. P. A., 512 F. 2d 1351 at 1361 (D. C. Cir. 1975).

the Administrative Procedure Act, 5 U. S. C. § 701 ef seq.

Since construction of the shopping center was imminent and be-

cause preliminary injunctive relief was sought under Rule 65,

Federal Rules of Civil Procedure, petitioners did not file a 60

day notice as required by § 304(b). Instead, they relied on the

traditional bases for district court jurisdiction alleged in their

complaint.

While the district court litigation was pending, the Adminis-

trator promulgated what purported to be “indirect source” reg-

ulations. 39 Fed. Reg. 7270 (February 25, 1974). However,

he expressly excluded from the scope of his indirect source

regulations the significant deterioration aspects of indirect source

control.

“Because several basic approaches are still being considered,

an attempt to reflect non-deterioration considerations in the

indirect source regulations would be premature. How-

ever it is EPA’s intent that indirect source and significant

deterioration regulations will be consistent with one another.

Specific relationships will be addressed in regulation to be

promulgated on significant deterioration.”

39 Fed. Reg. at 7271

(emphasis added).

Despite a claim by the Administrator that § 304 was the

exclusive basis of district court jurisdiction and that the action

was therefore barred by failure to give 60 days notice, the dis-

trict court held that the 60 day notice provision did not bar

jurisdiction under 28 U. S. C. §§ 1331 and 1361. However, the

district court ruled for the Administrator on the merits, con-

cluding that the Administrator had complied with his statutory

duty by promulgating the February 25, 1974 indirect source

regulations.

As to the failure of the Administrator to include significant

deterioration aspects of indirect source regulations, the district

court concluded that the significant deterioration issue was dis-

cretionary with the Administrator.* He therefore dismissed the

complaint for failure to state a claim.

Petitioners appealed and during the pendency of the appeal the

Administrator promulgated what purported to be significant

deterioration regulations. 39 Fed. Reg. 42510 (December 5,

| 1974). However, contrary to his earlier promise to include in-

direct source controls in his significant deterioration regulations,

no mention was made concerning indirect sources. Yet the

Administrator’s brief in the Seventh Circuit below argued that

the December 5, 1974 regulations had complied fully with the

court’s order in Sierra Club v. Ruckelshaus, 344 F. Supp. 253

(D. D. C. 1972), aff'd. per curiam, 4 E. R. C. 1815 (D. C.

Cir. 1972); aff'd. by an equally divided Court sub nom. Fri v.

Sierra Club, 412 U. S. 541 (1973). The Administrator con-

tended that any dissatisfaction with those regulations should be

reviewed exclusively in the court of appeals under § 307.

Petitioners attempted to preserve the merits of their claim from

these jurisdictional anomalies by maintaining both the district

court appeal’ and by filing a timely petition for review directly in

the court of appeals under § 307.* On petitioners’ motion, the

two proceedings were consolidated.

In direct contrast to the district court below the Seventh

Circuit held that the Administrator had not complied with the

mandate of the Sierra Club decision but that the petitioners

6. “Moreover, it has not been conclusively determined that the '

Clean Air Act requires the prevention of significant deterioration as a

decision by an equally divided Supreme Court is not an authorita-

tive determination for other cases.” 374 F. Supp. 758 at 774 (A97),

referring to this Court’s action in Fri v. Sierra Club, 412 U. S. 541 :

(1973).

7. In the Seventh Circuit, the district court appeal was designated '

| No. 74-1271.

| 8 In the Seventh Circuit, the petition for review of the Adminis-

trator’s failure to include significant deterioration controls for carbon

monoxide, hydrocarbons, oxides of nitrogen and photochemical oxi-

dants—the vehicular pollutants associated with indirect sources—in

his promulgation on December 5, 1974, 39 Fed. Reg. 42510, was :

designated No. 75-1006.

REE NE eee

had failed to meet the jurisdictional prerequisites to raise the

substantive issue. The court of appeals held that the Adminis-

trator’s failure to include statutorily mandated components in

the promulgated regulations should be reviewed exclusively in

the district court. Moreover, the Seventh Circuit held that the

exclusive basis for district court subject matter jurisdiction

was § 304(a)(2). It held that district court jurisdictional bases

which would have existed apart from § 304—28 U.S. C. § 1331,

28 U. S. C. § 1361 and the Administrative Procedure Act, 5

U. S. C. § 701 et seq.—had been barred by the enactment of

§ 304. The Seventh Circuit’s decision that § 304 was the ex-

clusive basis of district court subject matter jurisdiction was

made despite the express savings provision of § 304(e), 42

U. S. C. § 1857h-2(e) which states:

“(e) Nothing in this section shall restrict any right which

any person (or class of persons) may have under any

statute or common law to seek enforcement of any emis-

sion standard or limitation or to seek any other relief (in-

cluding relief against the Administrator of a State

agency).”

Since the Seventh Circuit held that § 304 is the exclusive

basis of district court jurisdiction and since petitioners had not

given the sixty day notice required by § 304(b)(1)(A) as a

prerequisite to an action under § 304, the court of appeals held

that there was no subject matter jurisdiction in the district court.

Moreover, despite a petition for rehearing which cited both

the directly contrary opinion of the District of Columbia Circuit

in Natural Resources Defense Council v. Train, 510 F. 2d 692,

698-703 (D. C. Cir. 1975)° and the decision of this Court in

Abbott Laboratories v. Gardner, 387 U. S. 136 (1967) and

Rusk v. Cort, 369 U. S. 367 (1962), the Seventh Circuit de-

clined to change its decision. It simply filed a modified opinion

acknowledging the conflict between the Seventh Circuit and

the District of Columbia Circuit.

9. See also Natural Resources Defense Council v. Train, 519 F.

2d 287, 291 (D. C. Cir. 1975); Oljato Chapter of Navajo Tribe v.

Train, 515 F.2d 654, 664 n. 16 (D. C. Cir. 1975).

The Seventh Circuit’s decision on the exclusivity of § 304

as a basis of district court jurisdiction raises a three-pronged

dilemma in cases where the Administrator fails to include certain

components in promulgating regulations:

1. Requirement of a 60 day notice prior to commencing an

action effectively precludes a person suffering injury as a result

of the Administrator’s failure to act from seeking temporary or

preliminary injunctive relief pursuant to Rule 65 of the Federal

Rules of Civil Procedure. As explained in N. R. D. C. v. Train,

510 F. 2d 692, 700 (D. C. Cir. 1975) the purpose of § 304

was to expand jurisdiction to those lacking the requisite injury

for standing and jurisdictional amount. It was not designed to

bar emergency relief for those actually suffering injury who would

have had the requisite standing to seek relief under other jur-

isdictional grants.

2. Exclusivity of § 304 jurisdiction would render unre-

viewable those failures to act which are not a violation of a clear

duty but are an abuse of discretion normally reviewable under

5 U. S. C. § 706(2)(A). Cf. N. R. D. C. v. Train, 519 F.

2d 287, 291 (D. C. Cir. 1975). Both the district court and the

court of appeals below questioned whether the duty to promul-

gate significant deterioration regulations was non-discretionary

or actually within the discretion of the Administrator.’° If the

duty to promulgate is discretionary then § 304 jurisdiction does

not exist and review of the Administrator's failure to promulgate

such regulations is in a “jurisdictional limbo” N. R. D. C. v.

Train, 519 F. 2d 287 at 291.

3. Congress clearly intended § 304 to expand the jurisdic-

tion of district courts to persons who would otherwise not have

the requisite standing to sue. Congress wanted uninjured citizens

to act as “private attorneys general” to aid in the enforcement

of the Clean Air Act.’ As a limitation on this new expansion

10. City of Highland Park v. Train, 519 F. 2d at 692 (A27);

district court opinion 374 F. Supp. at 774 (A97).

11. Compare the lack of a standing requirement under § 304

with the required standing to seek appellate review under § 307,

of jurisdiction to non-injured private attorneys general, Congress

imposed a 60 day notice provision. However, Congress expressly

stated that § 304 was not intended to affect or restrict the jur-

isdiction and remedies which existed under other statutes and

at common law. But the Court of Appeal’s decision below

destroys those traditional statutory bases of judicial relief for

persons suffering actual injury.

REASONS FOR GRANTING THE WRIT.

1. The Decisien Below Conflicts with Decisions of the Supreme

Court as to the Exclusivity of a Statutory Jurisdictional

Grant and the Preclusion of Traditional Bases of Subject

Matter Jurisdiction.

The district court action below was brought under four sep-

arate bases of subject matter jurisdiction:

a. 28 U. S. C. § 1331—general federal questions

b. 28 U.S. C. § 1361—action to compel a federal officer

to perform a duty owed to plaintiff

c. 5 U. S. C. § 701 et seqg.—the Administrative Pro-

cedure Act

d. 42 U.S. C. § 1857h-2—citizen suits under the Clean

Air Act

The Seventh Circuit held that § 1857h-2 is the exclusive jur-

isdictional basis for district court claims against the Adminis-

trator. Since petitioners, in seeking preliminary injunctive relief,

had not filed the 60 day notice required by § 1857h-2(b)(1)

(A), the Seventh Circuit held that no suit could be commenced

even though the action was also brought under jurisdictional

grants provided by other statutes.

Unfortunately the Seventh Circuit completely ignored the ex-

istence of the explicit statutory language which preserves other

Natural Resources Defense Council v. E. P. A., 481 F. 2d 116, 119-

120 (10th Cir. 1973).

Tey la ae

statutory and common law remedies wholly independent of

§ 304.

Section 304(e) expressly provides:

“Nothing in this section shall restrict any right which any

person (or class of persons) may have under any statute

or common law to seek enforcement of any emission

j standard or limitation or to seek any other relief (includ-

ing relief against the Administrator or a State agency ).”

42 U. S. C. § 1857h-2(e) (A6).

The explicit congressional intent set forth in § 1857h-2(e)

not to restrict traditional remedies is echoed throughout the

legislative history of the Clean Air Act. For example, the House-

Senate Conference Committee stated:

“The right of persons or classes of persons to seek enforce-

ment or relief under any other statute or common law

remedy is not affected.”??

The Senate Public Works Committee expressed similar intent:

“It should be noted however that the section {1857h-2]

would preserve any rights or remedies under any other

law.”"*

The 60 day notice requirement was intended only as a limita-

tion to the special actions under § 1857h-2 and was not intended

to restrict jurisdiction over actions that could exist independent

of § 1857h-2. See: Natural Resources Defense Council v. Train,

510 F. 2d 692, 698-703 (D. C. Cir. 1975).'* Indeed, the pur-

12. See: A Legislative History of the Clean Air Act Amend-

ments of 1970, prepared by the Environmental Policy Division of the

Congressional Research Service of the Library of Congress (1974)

p. 206.

13. Jd. at 438.

14. This decision by the Court of Appeals for the District of

Columbia contains an extended analysis of the legislative history of

§ 1857h-2 and its analog under the Federal Water Pollution Control

Act, 33 U. S. C. § 1365(b) (2). See: pp. 698-702. The holding of ;

that case is directly contrary to the Seventh Circuit’s decision for

which petitioners seek certiorari.

pose of § 1857h-2 was to expand federal subject matter jurisdic-

tion by removing obstacles of jurisdictional amount and standing

which barred actions by citizens not suffering “injury in fact”.

This special citizen suits provision was definitely not intended

to limit those actions where traditional jurisdictional amount

and standing requirements had been met."® See: N. R. D. C.

v. Train, supra, 510 F. 2d at 700.

The clear statutory language of the savings clause, § 1857h-

2(e), and the multiple expressions of legislative intent not to

restrict independent remedies becomes even more significant

when viewed in light of this Court’s decisions analyzing govern-

ment claims of exclusivity of review under specialized statutes.

The leading decision is Abbott Laboratories v. Gardner, 387

U. S. 136 (1967).

In Abbott, a group of drug manufacturers brought suit in

district court challenging a labeling regulation promulgated by

15. That subject matter jurisdiction exists under other statutes to

review the Administrator’s failure to act is clear. Where the district

court must examine the federal substantive law upon which a claim

for relief is founded, the district court has subject matter jurisdiction

under 28 U. S. C. § 1331, general federal question jurisdiction. The

Fair v. Kohler Die Company, 228 U. S. 22, 25 (1913); Bell v.

Hood, 327 U. S. 678, 682 (1946); Wheeldin v. Wheeler, 373 U. S.

647, 649 (1963); Montana-Dakota Co. v. Pub. Serv. Co., 341 U. S.

246, 249 (1951); Powell v. McCormack, 395 U. S. 486, 516

(1969); Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 409 F. 2d 718, 719-720 (2nd Cir. 1969),

rev'd. on merits, 403 U. S. 388 (971). The complaint alleges and no

one has disputed that the amount in controversy exceeds $10,000.

See: St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U. S. 283

(1938).

While not essential to subject matter jurisdiction (given jurisdic-

tion under § 1331), this Court has indicated and the Circuit Courts

of Appeals have increasingly held, that the Administrative Procedure

Act, 5 U. S. C. § 701 et seq. provides an independent basis of sub-

ject matter jurisdiction. See: Pickus v. United States Board of Parole,

507 F. 2d 1107, 1109 (D. C. Cir. 1974) and cases cited therein.

There is no need to engage in extended discussion on the Seventh Cir-

cuit’s narrow construction of 28 U. S. C. § 1361 jurisdiction other

than to note that the rigid mandamus construction of § 1361 is con-

trary to the broad remedial purpose of the statute. See: Peoples v.

United States Department of Agriculture, 427 F. 2d 561 (D. C.

Cir. 1970).

the Commissioner of the Food and Drug Administration. The

district court dismissed the complaint on the ground that 21

U. S. C. §§ 371(e) and (f), which provided for review of cer-

tain kinds of regulations in the Court of Appeals, was the

exclusive review mechanism. This Court reversed, stating:

“Judicial review of a final agency action will not be cut off

unless there is persuasive reason to believe that such was

the purpose of Congress.”

387 U. S. at 140.

This Court found no evidence at all that Congress intended to

preclude traditional avenues of judicial review. Indeed, in an

analysis particularly appropriate to the instant case, this Court

emphasized the existence of a savings clause provision in the

review statutes which, like § 1857h-2(e), preserved existing

remedies. 387 U. S. at 144. The Court found the savings clause

to be affirmative evidence of congressional intent to preserve

remedies such as those existing under the Administrative Proce-

dure Act:

“We prefer to take the savings clause at face value and to

read it in harmony with the policy favoring judicial review

expressed in the Administrative Procedure Act and this

Court’s decisions.”

387 U.S. at 146.

See also: Rusk v. Cort, 369 U. S. 367 (1962). In Rusk, a

physician who had left the United States and had refused to

submit to induction into the military, applied for a passport to

return to this country. The State Department denied the pass-

port on the ground that Cort had lost his citizenship. Cort then

sued the Secretary of State in the district court under the Ad-

ministrative Procedure Act. The district court denied the govern-

ment’s motion to dismiss which argued that a statutory habeas

corpus proceeding pursuant to 8 U. S. C. § 360(c) was the

only method for reviewing determinations of citizenship. Upon

the district court’s holding of jurisdiction under the Administra-

tive Procedure Act and its ruling in favor of the plaintiff on

the merits, the government appealed. This Court affirmed, stat-

ing:

“(T]he Court will not hold the broadly remedial provisions

of the Administrative Procedure Act are unavailable to

review administrative decisions . . . in the absence of clear

and convincing evidence that Congress so intended.”

369 U. S. at 380.

Applying the mandates of Abbott Laboratories v. Gardner

and Rusk v. Cort to the instant case, it is clear that there is

no evidence of congressional intent to preclude traditional forms

of judicial review by imposing a 60 day notice requirement on

such remedies. Indeed, § 1857h-2(e) and its legislative history

demonstrates affirmative evidence that Congress wished to pre-

serve traditional avenues of review independent of any such

restraints.

The direct conflict between the Seventh Circuit’s decision

below and the decisions of the this Court in Abbott Labora-

tories v. Gardner, supra and Rusk v. Cort, supra justify the

grant of certiorari to review the judgment below.

2. The Decision Below Conflicts with the Decisions of Other

Courts of Appeals as to the Exclusivity of 42 U. S. C.

§ 1857h-2 as a Basis of District Court Subject Matter

Jurisdiction.

As noted above the District of Columbia Circuit has held that

the citizen suit jurisdictional grant of the Clean Air Act, 42

U. S. C. § 1857h-2, and its jurisdictional counterpart in the

Federal Water Pollution Control Act, 33 U. S. C. § 1365 are

not the exclusive bases for district court subject matter jurisdic-

tion and that 28 U. S. C. § 1331, 28 U. S. C. § 1361 and the

Administrative Procedure Act, 5 U. S. C. § 701 et seq. also

conferred subject matter jurisdiction on the district court.

N. R. D. C. v. Train, 510 F. 2d 692, 698-703."* This holding

16. See also N. R. D.C. v. Train, 519 F. 2d 287, 291 (D. C.

Cir. 1975); Oljato Chapter of Navajo Tribe v. Train, 515 F. 2d 654,

664 n. 16 (D.C. Cir. 1975).

was based on an extensive analysis of the legislative history and

purpose of § 304 as well as adherence to the savings clause

provisions of § 304(e). The decision of the Seventh Circuit

below is directly contrary to the holdings of the District of

Columbia Circuit.

An additional related conflict with the District of Columbia

Circuit arises from the Seventh Circuit’s characterization of the

Administrator’s significant deterioration obligation as potentially

discretionary (A27). If so, review of that obligation would not

even be available under § 304—which is limited to non-discre-

tionary duties—but would be reviewable as an abuse of dis-

cretion under the Administrative Procedure Act, 5 U. S. C.

§ 706. N. R. D. C. v. Train, 519 F. 2d 287, 291 (D. C.

Cir. 1975).

These conflicts justify the grant of certiorari to review the

judgment below.

3. The Decision Below Conflicts with the Decision of Other

Courts of Appeals as to the Appropriate Forum—District

Court or Court of Appeals—to Seek Review of the Ad-

ministrator’s Failure to Include Statutorily Mandated Com-

ponents in Promulgation of Regulations.

The Administrator promulgated what purported to be signifi-

cant deterioration regulations on December 5, | 974, 39 Fed.

Reg. 42510. He claimed that this promulgation . atisfied the

court order in Sierra Club v. Ruckelshaus, supra. To protect

their jurisdictional base, petitioners—already on appeal of the

district court action in Docket No. 74-1271—filed a timely

petition for review directly in the Seventh Circuit Court of

Appeals under § 307—Docket No. 75-1006.

The Seventh Circuit found—and counsel for the Adminis-

trator admitted at oral argument—that the December 5, 1974

regulations did not include statutorily mandated components.”

17. Controls for vehicular pollutants—carbon monoxide, hydro-

carbons, etc.

The Seventh Circuit held that the Administrator’s failure to in-

clude the components was reviewable only in the district court

and not in the court of appeals under § 307.

The Tenth Circuit has taken a directly contrary view and

held that the Administrator's promulgation of regulations and

the components of those regulations are only reviewable in

the courts of appeals pursuant to § 307, Anaconda v, Ruckels-

haus, 482 F, 2d 1301, 1304-1305 (10 Cir, 1973).

The District of Columbia Circuit has taken a different ap-

proach. It has recognized the semantic confusion which neces-

sarily results from characterizing an inadequate or incomplete

action as an action or a failure to act. Thus, where the Ad-

ministrator has promulgated a regulation which in the opinion

of the challengers does not go far enough, jurisdiction could

rest either in the district court or the court of appeals. N. R.

D. C. v. E. P. A., 512 F. 2d 1351, 1356-1357 (D. C. Cir.

1975).

These conflicts justify the grant of certiorari to review the

judgment below.

4. The Decision Below Creates Significant Problems Regarding

the Subject Matter Jurisdiction of the Federal Courts and

the Administration of Judicial Review Under the Clean

Air Act.

As discussed above, a statutory scheme which was intended

to give expeditious review of substantive issues under the Clean

Air Act has become bogged down in broad jurisdictional in-

consistencies between the circuits. If the appellate court is

the appropriate forum for judicial correction of statutorily de-

ficient regulations, then the decision below is clearly erroneous

and will lead to further confusion of the review structure,

If, conversely, the district court is the appropriate forum,

the Seventh Circuit’s radical constriction of district court juris-

diction flies in the face of express Congressional intent, this

Court’s decisions in Abbott Laboratories v. Gardner, supra

and Rusk v. Cort, supra and the decisions of the District of

Columbia Circuit in N. R. D. C. v. Train, 510 F. 2d 692

(D. C, Cir. 1975).

If allowed to stand, the decision below will greatly expand

the ever growing litigation over the jurisdiction of our court

system at great cost to effective judicial administration.

CONCLUSION,

For the above reasons a Writ of Certiorari should be issued

to review the judgment and opinion of the Seventh Circuit,

Respectfully submitted,

JOSEPH V. KARAGANIS,

SANFORD R, GAIL,

KARAGANIS & GAIL LTD.,

180 North LaSalle Street,

Chicago, Illinois 60601,

Counsel for Petitioners.

Of Counsel:

THOMAS H. CoMPERE,

BERLE L. SCHWARTZ,

1707 St. Johns Avenue,

Highland Park, Illinois 60035.

October, 1975.

Supreme Court of the Gnited States

OCTOBER TERM, 1975.

No.

THE CITY OF HIGHLAND PARK, ILLINOIS, Etc., ET AL.,

Petitioners,

vs.

RUSSELL E. TRAIN, E&TCc., ET AL.,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

INDEX TO APPENDIX.

Statutes Involved.

PAGE

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US 4 es ee I A7

Opinions Below.

Modified Opinion of the Court of Appeals for the Seventh

Circuit entered July 24, 1975 ..........

Judgment Order of July 24, 1975 ........

Order of July 24, denying Petition for Rehearing ....... A40

Judgment Order of June 10, 1975 ............+54..- A43

Opinion of the Court of Appeals for the Seventh Circuit

entered Fume 10, 1975.2 oie bo sew ewes ec cece. A45

Opinion of the District Court for the Northern District

of Illinois entered March 15, 1974 ............... A71

Supplemental Opinion of the District Court for the North-

ern District of Illinois entered March 25, 1974 ..... A96

APPENDIX

UNITED STATES CopE, TITLE 5

§ 701. Application; definitions

(a) This chapter applies, according to the provisions

thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion

by law.

(b) For the purpose of this chapter—

(1) “agency” means each authority of the Government

of the United States, whether or not it is within or subject

to review by another agency, but does not include—

(A) the Congress;

(B) the courts of the United States;

sions of the United States;

(D) the government of the District of Columbia;

(E) agencies composed of representatives of the

parties or of representatives of organizations of the

parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time

of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739,

1743, and 1744 of title 12; chapter 2 of title 41;

or sections 1622, 1884, 1891-1902, and former sec-

tion 1641(b) (2), of title 50, appendix; and

(2) “person”, “rule”, “order”, “license”, “sanction”,

“relief”, and “agency action” have the meanings given them

by section 551 of this title.

§ 702. Right of review

A person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within the

meaning of a relevant statute, is entitled to judicial review

thereof.

§ 703. Form and venue of proceeding

The form of proceeding for judicial review is the special statu-

tory review proceeding relevant to the subject matter in a court

specified by statute or, in the absence or inadequacy thereof,

any applicable form of legal action, including actions for declar-

atory judgments or writs of prohibitory or mandatory injunction

or habeas corpus, in a court of competent jurisdiction. Except

to the extent that prior, adequate, and exclusive opportunity for

judicial review is provided by law, agency action is subject to

judicial review in civil or criminal proceedings for judicial

enforcement.

§ 704. Actions reviewable

Agency action made reviewable by statute and final agency

action for which there is no other adequate remedy in a court

are subject to judicial review. A preliminary, procedural, or

intermediate agency action or ruling not directly reviewable is

subject to review on the review of the final agency action. Except

as otherwise expressly required by statute, agency action other-

wise final is final for the purposes of this section whether or not

there has been presented or determined an application for a

declaratory order, for any form of reconsideration, or, unless

the agency otherwise requires by rule and provides that the

action meanwhile is inoperative, for an appeal to superior

agency authority.

§ 705. Relief pending review

When an agency finds that justice so requires, it may postpone

the effective date of action taken by it, pending judicial review.

On such conditions as may be required and to the extent neces-

sary to prevent irreparable injury, the reviewing court, including

the court to which a case may be taken on appeal from or on

application for certiorari or other writ to a reviewing court, may

issue all necessary and appropriate process to postpone the

effective date of an agency action or to preserve status or rights

pending conclusion of the review proceedings.

§ 706. Scope of review

To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law,

interpret constitutional and statutory provisions, and determine

the meaning or applicability of the terms of an agency action.

The reviewing court shall—

(1) compel agency action unlawfully withheld or un-

reasonably delayed; and

(2) hold unlawful and set aside agency action, findings,

and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(B) contrary to constitutional right, power, priv-

ilege, or immunity;

or limitations, or short of statutory right;

(D) without observance of procedure required by

law;

(E) unsupported by susbtantial evidence in a case

subject to sections 556 and 557 of this title or other-

wise reviewed on the record of an agency hearing

provided by statute; or

(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the reviewing

court.

In making the foregoing determinations, the court shall review

the whole record or those parts of it cited by a party, and due

account shall be taken of the rule of prejudicial error.

UNITED STATES CODE, TITLE 28

§ 1331. Federal question; amount in controversy; costs

(a) The district courts shall have origimal jurisdiction of all

civil actions wherein the matter in controversy exceeds the sum

or value of $10,000, exclusive of interest and costs, and arises

under the Constitution, laws, or treaties of the United States.

(b) Except when express provision therefor is otherwise

made in a statute of the United States, where the plaintiff is

finally adjudged to be entitled to recover less than the sum or

value of $10,000, computed without regard to any setoff or

counterclaim to which the defendant may be adjudged to be

entitled, and exclusive of interests and costs, the district court

may deny costs to the plaintiff and, in addition, may impose

costs on the plaintiff.

§ 1361. Action to compel an officer of the United States to

perform his duty

The district courts shall have original jurisdiction of any

action in the nature of mandamus to compel an officer or em-

ployee of the United States or any agency thereof to perform

a duty owed to the plaintiff.

UNITED STATES CODE, TITLE 42

§ 1857h—2. Citizen suits—Establishment of right to bring suit

(a) Except as provided in subsection (b) of this section,

any person may commence a civil action on his own behalf—

(1) against any person (including (i) the United States,

and (ii) any other governmental instrumentality or agency

to the extent permitted by the Eleventh Amendment to the

Constitution) who is alleged to be in violation of (A)

an emission standard or limitation under this chapter or

(B) an order issued by the Administrator or a State with

respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this chapter which is not discretionary with the

Administrator.

The district courts shall have jurisdiction, without regard to the

amount in controversy or the citizenship of the parties, to

enforce such an emission standard or limitation, or such an

order, or to order the Administrator to perform such act or

duty, as the case may be.

Notice

(b) No action may be commenced—

(1) under subsection (a)(1) of this section—

(A) prior to 60 days after the plaintiff has given

notice of the violation (i) to the Administrator, (ii)

to the State in which the violation occurs, and (iii)

to any alleged violator of the standard, limitation, or

order, or

(B) if the Administrator or State has commenced

and is diligently prosecuting a civil action in a court

of the United States or a State to require compliance

with the standard, limitation, or order, but in any

such action in a court of the United States any person

may intervene as a matter of right.

(2) under subsection (a)(2) of this section prior to

60 days after the plaintiff has given notice of such action

to the Administrator,

except that such action may be brought immediately after such

notification in the case of an action under this section respecting

a violation of section 1857c—7(c)(1)(B) of this title or an

order issued by the Administrator pursuant to section 1857c

—8(a) of this title. Notice under this subsection shall be given

in such manner as the Administrator shall prescribe by regu-

lation.

Venue; intervention by Administrator

source of an emission standard or limitation or an order respect-

ing such standard or limitation may be brought only in the

judicial district in which such source is located.

(2) In such action under this section, the Administrator,

if not a party, may intervene as a matter of right.

Award of costs; security

(d) The court, in issuing any final order in any action

brought pursuant to subsection (a) of this section, may award

costs of litigation (including reasonable attorney and expert

witness fees) to any party, whenever the court determines such

award is appropriate. The court may, if a temporary restraining

order or preliminary injunction is sought, require the filing of

a bond or equivalent security in accordance with the Federal

Rules of Civil Procedure.

Non-restriction of other rights

(e) Nothing in this section shall restrict any right which any

person (or class of persons) may have under any statute or

common law to seek enforcement of any emission standard or

limitation or to seek any other relief (including relief against

the Administrator or a State agency).

Definition

(f) For purposes of this section, the term “emission stand-

ard or limitation under this chapter” means—

(1) a schedule or timetable of compliance, emission

limitation, standard of performance or emission standard,

(2) a control or prohibition respecting a motor vehicle

fuel or fuel additive,

which is in effect under this chapter ( including a requirement

applicable by reasons of sections 1857f of this title) or under

an applicable implementation plan.

§ 1857h—5. Administrative proceedings and judicial review

(a)(1) In connection with any determination under section

1857c—5(f) of this title or section 1857f—1(b)(5) of this

title, or for purposes of obtaining information under section

1857f—1(b)(4) or 1857f—6c(c)(3) of this title, the Ad-

ministrator may issue subpenas for the attendance and testimony

of witnesses and the production of relevant papers, books, and

documents, and he may administer oaths. Except for emission

data, upon a showing satisfactory to the Administrator by such

Owner or operator that such papers, books, documents, or in-

formation or particular part thereof, if made public, would

divulge trade secrets or secret processes of such owner or oper-

ator, the Administrator shall consider such record, report, or

information or particular portion thereof confidential in accord-

ance with the purposes of sections 1905 of Title 18, except that

such paper, book, document, or information may be disclosed to

other officers, employees, or authorized representatives of the

United States concerned with carrying out this chapter, to per-

sons carrying out the National Academy of Sciences’ study and

investigation provided for in section 1857f—1(c) of this title,

or when relevant in any proceeding under this chapter. Wit-

nesses summoned shall be paid the same fees and mileage that

are paid witnesses in the courts of the United States. In case

of contumacy or refusal to obey a subpena served upon any

person under this subparagraph, the district court of the United

States for any district in which such person is found or resides

or transacts business, upon application by the United States and

after notice to such person, shall have jurisdiction to issue an

order requiring such person to appear and give testimony before

the Administrator to appear and produce papers, books, and

documents before the Administrator, or both, and any failure

to obey such order of the court may be punished by such court

as a contempt thereof.

(b)(1) A petition for review of action of the Administrator

in promulgating any national primary or secondary ambient

air quality standard, any emission standard under section 1857c

—7 of this title, any standard of performance under section

1857c—6 of this title, any standard under section 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 pro-

hibition 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 approv-

ing or promulgating any implementation plan under section

1857c—5 of this title or section 1857-—6(d) of this title, or

his action under section 1857c—10(c)(2)(A), (B), or (C)

of this title or under regulations thereunder, 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, approval, or action, or after such date if

such petition is based solely on grounds arising after such 30th

day.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) shall not

be subject to judicial review in civil or criminal proceedings for

enforcement.

a determination under this chapter required to be made on the

record after notice and opportunity for hearing, if any party

applies to the court for leave to adduce additional evidence,

and shows to the satisfaction of the court that such additional

evidence is material and that there were reasonable grounds

for the failure to adduce such evidence in the proceeding before

the Administrator, the court may order such additional evidence

(and evidence in rebuttal thereof) to be taken before the Ad-

ministrator, in such manner and upon such terms and conditions

as to the court may deem proper. The Administrator may modify

his findings as to the facts, or make new findings, by reason of

the additional evidence so taken and he shall file such modified

or new findings, and his recommendation, if any, for the modi-

fication or setting aside of his original determination, with the

return of such additional evidence.

Al0

IN THE UNITED STATES COURT OF APPEALS

For the Seventh Circuit

No. 74-1271

THE City OF HIGHLAND PARK, ILLINOIS, etc., et al.,

Plaintiffs-Appellants,

vs.

RUSSELL E. TRAIN, etc., et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the Northern

District of Illinois, Eastern Division — No. 73 C 3027

Bernard M. Decker, Judge.

No. 75-1006

THE CITY OF HIGHLAND PaRK, ILLINOIS, etc., et al.,

Petitioners,

vs.

RuSSELL E. TRAIN, as Administrator of the United States En-

vironmental Protection Agency, and UNITED STATES EN-

VIRONMENTAL PROTECTION AGENCY,

Respondents.

Petition for Review of an Order of the

Environmental Protection Agency

Argued February 21, 1975 — Decided June 10, 1975

Opinion Modified, July 24, 1975

Before CUMMINGS, SPRECHER and TONE, Circuit Judges.

Tonge, Circuit Judge. In the principal case before us in these

consolidated proceedings, No. 74-1271, plaintiffs sue to block

the construction of a shopping center and the extension and

All

widening of the road along which the shopping center is to be

built, relying upon the Clean Air Amendments of 1970, the

National Environmental Protection Act, and the Equal Protec-

tion Clause of the Fourteenth Amendment. They seek to compel

the Administrator of the Environmental Protection Agency to

promulgate “indirect source” and “significant deterioration”

regulations which they hope would preclude the construction

of the shopping center and the road expansion (Counts I and I)

and to enjoin the road expansion until the Department of Trans-

portation has filed an environmental impact statement pursuant

to the National Environmental Protection Act (Count III).

Plaintiffs also allege that the Village of Northbrook has denied

them equal protection by the adoption of a zoning ordinance

which permits the construction of the shopping center (Count

IV).

The District Court dismissed the claims under the Clean Air

Amendments for failure to comply with the 60-day notice re-

quirement of section 304, 42 U.S.C. § 1857h-2, for failure to

state a claim on which relief can be granted, and on the ground

that some of the relief requested was already the subject of

orders issued by other federal courts. Finding it undisputed that

there was no federal involvement in the road expansion proj-

ect, the court granted summary judgment on the claim that an

environmental impact statement should have been filed. The

equal protection claim was also held to be without merit. The

court entered an order dismissing the action, City of Highland

Park v. Train, 374 F.Supp. 758 (N.D. Ill. 1974), from which

plaintiffs appeal and which we affirm.

Plaintiffs are two municipalities adjacent to the site of the

proposed shopping center, a non-profit corporation dedicated to

protecting the environment in the area, and various individuals

who reside near the site. The defendants are the Administrator

of the Environmental Protection Agency, the agency itself, the

Secretary of the Department of Transportation, the department

itself, the Department of Highways of Cook County, Ilinois,

Al2

the developers of the shopping center, proposed tenants of the

shopping center, the Village of Northbrook, in which the shop-

ping center will be located, and the trustees of the village.

The right of way of Lake-Cook Road extends from Lake

Michigan along the entire boundary between Lake and Cook

Counties to the western end of the boundary and continues on

west to the Fox River. Between Milwaukee Avenue and Rand

Road, the road is not completed. Where it is completed, it is,

for the most part, two lanes wide. In 1967 the Cook County

Highway Department initiated plans to expand the completed

portions of the road to four lanes and to construct a four-lane

extension on the right-of-way where no actual roadway presently

exists.

In January, 1973, certain of the defendants announced a

plan for the construction of a shopping center on the south side

of Lake-Cook Road between Skokie Highway and Waukegan

Road. The shopping center, according to the complaint, will

occupy one million square feet, have a parking lot accommodat-

ing 5,000 cars, and generate 28,400 vehicle trips per day. Ninety

percent or more of this traffic will be carried by Lake-Cook

Road, the only through-street which provides access to the shop-

ping center. Plaintiffs allege that this traffic “will overwhelm

even the proposed four lane expanded roadway,” and cause

“intolerable” congestion at the intersections of Lake-Cook Road

and Skokie Highway and Waukegan Road. As a result, resi-

dents of the area will be subjected to substantial “noise and dis-

comfort in the use of their homes and in the use of the streets

in their community” and will be exposed to increases in the

concentration of carbon monoxide in the ambient air by more

than 66 percent over existing levels.

Al3

The Clean Air Amendments

and Their Implementation

To explain plaintiffs’ claims under the Clean Air Amend-

ments of 1970, it is necessary to begin by summarizing per-

tinent parts of that legislation and its implementation by actions

of the Administrator and the states and by certain court deci-

sions. The background and a more complete history of the

amendments and their implementation to date appear in Mr.

Justice Rehnquist’s opinion for the Supreme Court in Train v.

Natural Resources Defense Council, Inc., 43 U.S.L.W. 4467

(U.S. April 16, 1975).

When the states did not act to fulfill their “primary respon-

sibility” for prevention of air pollution under earlier federal

clean air legislation, “Congress reacted by taking a stick to the

states in the form of the Clean Air Amendments of 1970, Pub.

L. 91-604, 84 Stat. 1676, enacted on December 31 of that

year.” Train v. Natural Resources Defense Council, Inc., supra,

43 U.S.L.W. at 4468. The 1970 Amendments established a

program to control air pollution to be carried out by the fed-

cral government and the states. The parts of the Amendments

pertinent here may be summarized as follows:

The Administrator was required, before specified dates, to

publish a list of air pollutants and issue “air quality criteria”

containing information about each listed pollutant and its effects

on the air. (Section 108, 42 U.S.C. § 1857c—3.) He was also

required to establish national “ambient air quality standards”

for each air pollutant for which air quality criteria were issued.

(Section 109, 42 U.S.C. § 1857~-—4.) The states have primary

authority to establish “implementation plans” to achieve these

standards, but these plans are subject to review by the Admin-

istrator. (Section 110, 42 U.S.C. § 1857c—S.)

Two sets of standards were to be prescribed by the Adminis-

trator, “primary standards,” the “attainment and maintenance of

which, in the judgment of the Administrator, based on {air

Al4

quality] criteria and allowing an adequate margin of safety, are

requisite to protect the public health;” and “secondary stand-

ards,” which “shall specify a level of air quality the attainment

and maintenance of which, in the judgment of the Administrator,

based on such criteria, is requisite to protect the public welfare

from any known or anticipated adverse effects associated with

the presence of such air pollutant in the ambient air.” (Section

109(b), 42 U.S.C. § 1857-—4(b).) The Administrator pre-

scribed these standards within the time allowed him by the Act.

Within nine months after the Administrator’s promulgation

of the national standards, each state was to submit to him a

plan providing for the “implementation, maintenance, and

enforcement” of the standards. (Section 110(a)(1), 42 U.S.C.

§ 1857c—5(a)(1).) Each state plan was required to provide

for the attainment of the national primary standards “as ex-

peditiously as practicable” and not later than three years after

the date the Administrator approved the plan. (Section 110(a)

(2) (A) (i), 42 U.S.C. §1857c—5(a)(2)(A)(i).) The na-

tional secondary standards were to be met within a “reasonable

time” to be specified in the plan. (Section 110(a) (2) (A) (ii),

42 U.S.C. § 1857c-—5(a) (2) (A) (ii).) Each state plan was

to include “emission limitations, schedules, and timetables for

compliance with such limitations, and such other measures as

may be necessary to insure attainment and maintenance of

such primary or secondary standard, including, but not limited

to, land-use and transportation controls.” Section 110(a) (2)

(B), 42 U.S.C. § 1857c—S5(a)(2)(B).) Other prerequisites

to approval by the Administrator are set forth in the Act. (Sec-

tion 110(a)(2)(C) through (H), 42 U.S.C. § 1857c-—5(a)

(2)(C) through (H).)

Within four months after the date a state plan was required

to be submitted, the Administrator was required to review the

plan to determine whether it satisfied the statutory requirements

and to approve or disapprove the plan or each portion thereof.

(Section 110(a), 42 U.S.C. § 1857c—5(a).) If the Admin-

Al5S

istrator determined that a state’s plan or any portion thereof

did not satisfy the statutory requirements, he was to disapprove

the plan, or the offending portion thereof, and, within six

months after the date the plan was required to be submitted,

promulgate his own implementation plan or portion thereof for

that state. (Section 110(c)(1), 42 U.S.C. § 1857¢-—S5(c)(1).)

Significant Deterioration Regulations

During the period he was reviewing state plans, the Admin-

istrator questioned his authority to require those plans to

protect against “significant deterioration” of air quality in

areas in which the air was cleaner than required by the national

standards, when that significant deterioration would not result

in pollution violative of the national standards. He took the

position that he would not demand such provisions in state

plans. See Sierra Club v. Ruckelshaus, 344 F.Supp. 253, 254

(D.D.C. 1972), aff'd per curiam, 4 E.R.C. 1815 (D.C. Cir. 7

1972), affd by an equally divided Court sub nom. Fri V.

Sierra Club, 412 U.S. 541 (1973). In the Sierra Club case

the court held, on motion for preliminary injunction, that the

Administrator had a non-discretionary duty to protect the air

quality from significant deterioration and issued a preliminary

injunction prohibiting him from approving state plans “which

allow pollution levels of clean air to rise to the secondary

standard level of pollution.” 344 F.Supp. at 256.1 The court

ordered the Administrator to promulgate proposed significant

deterioration regulations within six months as to any state plan

which permitted or failed to take measures sufficient to prevent

{ significant deterioration. 2 E.L.R. 20262, 20263.

) As a result of that decision the Administrator again reviewed

i : a :

all state implementation plans and disapproved them to the

' extent that they failed to prevent significant deterioration of air

quality. (40 C.F.R. § 52.21 (1974), 37 Fed. Reg. 23,836

1. See also Natural Resources Defense Council, Inc. v. Train,

489 F.2d 390, 408 (Sth Cir. 1974), rev’d on other grounds,

supra, 43 U.S.L.W. 4467; Exxon Corp. v. City of New York,

372 F.Supp. 335, 339 (S.D.N.Y. 1974).

Ge Ce

SRY AE NILE OTT ED I BE NB

PE INE BSR SI TN

Al6

(Nov. 9, 1972).) One of the plans affected was that of Illinois,

which had been submitted to the Administrator on January

31, 1972, and given partial approval on May 26, 1972. (40

C.F.R. § 52.722 (1974), 37 Fed. Reg. 10,842 (May 31,

1972).) In response to his duty under the court’s order in the

Sierra Club case the Administrator proposed (38 Fed. Reg.

18,986 (July 16, 1973)) and reproposed (39 Fed. Reg. 31,000

(Aug. 27, 1974)) rules on the prevention of significant air

quality deterioration. Eventually he promulgated regulations for

two of the six air pollutants for which he had earlier promul-

gated national ambient air quality standards under his statutory

duty.” (39 Fed. Reg. 42,510 (Dec. 5, 1974).) These regula-

tions are intended to prevent significant deterioration in the

quality of air for two pollutants, particulate matter and sulfur

dioxide, by limiting increases in the concentrations of those

pollutants in areas where the present level of pollution is less

than required by the national ambient air quality standards.

This is to be accomplished by dividing those areas in which the

level of pollution does not presently exceed the national ambient

air quality standards into three classes in which increases in

concentration of the two pollutants are limited by different

amounts. The Administrator originally classified all areas, but

the states, after a public hearing and subject to other require-

ments, may submit to the Administrator proposals for reclassi-

fication of areas. No final regulations have been promulgated

for the other four pollutants as of yet. The Administrator,

therefore, has not yet complied with the Sierra Club order.

2. The six pollutants originally identified were sulfur dioxide,

particulate matter, carbon monoxide, photochemical oxidants, hydro-

carbons, and nitrogen dioxide. (40 C.F.R. §§ 50.4—50.11 (1974).)

The original proposed rules referred to in the text broadened “nitro-

gen dioxide” to “nitrogen oxide” and omitted photochemical oxi-

dants, apparently because they are formed from hydrocarbons and

nitrogen dioxides and do not exist otherwise, and therefore do

not require separate treatment. This part of the proposed rules

required only that the best possible technology be used.

Al7

Indirect Source Regulations

When the Administrator gave partial approval to the

Illinois implementation plan on May 26, 1972, he also granted

to Illinois, as he did to a number of other states, extensions until

February 15, 1973, to submit the transportation portion of its

implementation plan. Several other states were given until mid-

1977 to attain the national primary standards. (37 Fed. Reg.

10,842 (May 31, 1972).) The Court of Appeals for the

District of Columbia, on a petition for review, held that this

extension was not authorized by the Act, and also found that

the record did not show whether the Administrator had con-

ducted a state-by-state determination on the efficacy of the

state plans to provide for the maintenance of the primary and

secondary standards beyond May 31, 1975. National Resources

Defense Council, Inc. v. EPA, 475 F.2d 968, 970, 971-972

(D.C. Cir. 1973). The court established a new time schedule

under which the Administrator was to review the maintenance

provisions of the state plans and disapprove those which he

determined did not contain sufficient measures for maintenance

of the primary standard. (Jd. at 972.) In this re-examination,

the Administrator found that none of the state plans, including

that of Illinois, contained adequate provisions for insuring the

maintenance of national standards, but granted the states an-

other opportunity to develop adequate programs. (40 C.F.R.

§ 52.22(a) (1974), 38 Fed. Reg. 6280 (March 8, 1973).)

The Administrator, pursuant to the order of the Court of

Appeals for the District of Columbia in Natural Resources

Defense Council, Inc. v. EPA, then promulgated regulations

to insure the maintenance of national standards by requiring

state implementation plans to contain procedures for review of

any new stationary source or modification that might “interfere

with attainment or maintenance of a standard either directly

because of emissions from it, or indirectly, because of emissions

resulting from mobile source activities associated with it.” (40

C.F.R. § 51.18 (1974), 38 Fed. Reg. 15,834, 15,836 (June

18, 1973).) He suggested guidelines to assist the states in com-

pene Pee a

LEST ELE DA EIN LW LS IE PY PEI OR EE NEI OES IPT SE ALOU LOAD ATES CME

EE LT iene ; ae

Al8

plying with the requirements of section 51.18. (See Appendix

O to 40 C.F.R. § 51.18.)

The Administrator was also required by National Resources

Defense Council, Inc. v. EPA, to promulgatie indirect source

review regulations if states either failed to submit such regula-

tions on their own or submitted inadequate regulations. (475

F.2d at 971.) In response to that requirement the Administrator

proposed regulations (38 Fed. Reg. 29,893 (Oct. 30, 1973)),

and, after public hearings in 43 states, promullgated them. (40

C.F.R. § 52.22 (1974), 39 Fed. Reg. 7270 (Feb. 25, 1974).)

He also determined that since the plans of most states, including

Illinois, contained inadequate provisions for review of indirect

sources as required by section 51.18, the prowisions of section

52.22(b) would be incorporated by reference and made a part

of each of those plans. (See, e.g., 40 C.F.R. § 52.736 (1974).)

An indirect source is defined by the regulatiion as “a facility,

building, structure, or installation which attracits or may attract

mobile source activities that results in emissioms or a pollutant

for which there is a national standard,” for exarmple a “[pJarking

facility.” (40 C.F.R. § 52.22(b)(i) (1974).) The regulation

applies to any indirect source on which construction or modi-

fication is to commence after December 31, 1974. The Admin-

istrator later amended the indirect source regulations in re-

spects not material here. (39 Fed. Reg. 25,292 (July 9,

1974).)

The Motion to Dismiss the Appeal

A motion by the defendants who are the developers of the

shopping center to dismiss the appeal in No. 74-1271 against

them and a prospective tenant was taken under advisement

with the case. These defendants argue that a 1974 amendment

to the Clean Air Act (42 U.S.C. §§ 1857c-5(c)(2)(C), (D))

and the promulgation of indirect source regulations moot Count

I, the only part of the case concerning them, and that no case

or controversy between them and the plaintiffs is raised in the

plaintiffs’ briefs because of failure to comply with Rule 28 (a)

Al9

(5), Fed. R. App. P., which requires a short statement of the

relief sought. The mootness ground is without merit, because

plaintiffs seek in Count I not only promulgation of indirect

source regulations, but also an injunction against construction

of the shopping center until proper regulations have been

promulgated. Since the developer defendants and the tenant

defendants were necessary parties in a claim seeking such an

injunction, the case is not moot as to them. The failure to state

the relief sought against these defendants is not a basis for

dismissal of the appeal as to them in the circumstances of this

case. We therefore deny the motion to dismiss and turn to the

merits of the appeal.

Counts I and II: The Regulations

In Count I of their complaint plaintiffs allege that the Admin-

istrator has been in violation of the provisions of the Act

requiring him to issue two kinds of regulations: (a) significant

deterioration regulations, preventing the significant deteriora-

tion of air quality in areas with air cleaner than national

standards (as stated above, such regulations as to two of the

six pollutants in question have now been promulgated); and

(b) indirect source regulations, preventing violations of the

national air quality standards by indirect sources (as stated

above, these regulations have now been promulgated). They

seek an order requiring him to promulgate those regulations and

to halt further construction of the shopping center until its

plans have been reviewed by the Administrator under both

sets of regulations he is required to promulgate. In Count II the

plaintiffs reallege that the Administrator has been in violation of

his statutory duty to promulgate significant deterioration and in-

direct source regulations. In this count, however, they seek to

halt construction of the Lake-Cook Road expansion and im-

provement project until its plans have been reviewed by the

Administrator under both sets of regulations. To facilitate un-

derstanding of our analysis, we will divide our discussion of

plaintiffs’ claims by considering separately plaintiffs’ rights to

A20

obtain promulgation of the two sets of regulations rather than

by considering separately Counts I and II of their complaint.

Review of the Indirect Source Regulations

The Administrator having promulgated indirect source regu-

lations after the complaint was filed, plaintiffs’ grievance now is

that those regulations exempt indirect sources on which con-

struction was commenced before January 1, 1975, as it was on

the shopping center involved in this case.

Section 307(b) (1) of the Amendments, 42 U.S.C. § 1857h-

5(b)(1), provides in pertinent part:

“A petition for review of the Administrator’s action in. . .

promulgating any implementation plan under section

1857c—S5 of this title [section 110 of the Amendments]

. . » may be filed only in the United States Court of

Appeals for the appropriate circuit.”

The indirect source regulations are subject to this section.

Entitled “Review of Indirect Sources” (39 Fed. Reg. 7270-7285

(Feb. 25, 1974)), they purport to be promulgated pursuant to

section 110, 42 U.S.C. § 1857c—S. It is so stated in the Ad-

ministrator’s comments in the first part of the regulations.

Furthermore, the regulations contain the subtitle, “Approval and

Promulgation of Implementation Plans,” which is the statutory

language used in section 307. The regulations set out the na-

tional standards for regulation of indirect sources, disapprove

various parts of state implementation plans, and incorporate the

federal standards into those plans. For example, Subpart O

deals with Illinois and provides:

“Subpart O—Illinois

“25. Subpart O is amended by adding § 52.736 as

follows:

“§ 52.736 Review of new sources and modifications.

“(a) The requirements of § 51.18 of this chapter are

not met because the State failed to submit a plan for

review of new or modified indirect sources.

A21

“(b) Regulation for review of new or modified indirect

sources. The provisions of § 52.22(b) of this chapter are

hereby incorporated by reference and made a part of the

applicable implementation plan for the State of Illinois.”

39 Fed. Reg. at 7281.

Since the regulations incorporate the federal standards into the

state plans, the Administrator is in effect promulgating imple-

mentation plans where state plans are deficient, in accordance

with section 110(c) (42 U.S.C. § 1857c—5), which is to be

reviewed only under section 307(b)(1) (42 U.S.C. § 1957h—

5(b)(1)).

Other courts of appeals have held under analogous circum-

stances that a petition for review under section 307(b)(1) is

the exclusive method of review. In Getty Oil Co. v. Ruckels-

haus, 467 F.2d 349, 355-356 (3d Cir. 1972), cert. denied, 409

U.S. 1125 (1973), the court refused to permit, in an action

filed in the district court, what amounted to an attack on the

compliance date in regulation in the Delaware plan limiting the

amount of sulfur content in burning fuel, holding that the sole

remedy was a petition for review to the court of appeals under

section 307(b)(1). Also supporting the rule that a petition

under that section is the sole remedy for reviewing the promul-

gation or implementation of clean air plans and regulations are

Plan for Arcadia, Inc. v. Anita Associates, 501 F.2d 390, 392

(9th Cir. 1974), cert. denied, _...... Js , 95 S.Ct. 517

(1974); and Anaconda Co. v. Ruckelshaus, 482 F.2d 1301,

1304 (10th Cir. 1973). One district court decision is squarely

in point, Pinkney v. Ohio Environmental Protection Agency,

375 F.Supp. 305, 309 (N.D. Ohio 1974), in which the alter-

native ground for dismissal of a challenge to the 180-day delay

in the effective date of the indirect source regulations was that

the exclusive remedy was a petition for review under section

307(b) (1). Similarly, in Delaware Citizens for Clean Air, Inc.

v. Stauffer Chemical Co., 367 F.Supp. 1040, 1046 (D. Del.

1973), the court refused, on the same ground, to entertain an

action to challenge a state-granted variance from compliance

A22

with a sulfur dioxide emission regulation, which the Administra-

tor had treated as a deferral of compliance amounting to a

revision of the state implementation plan and approved as such.

See West Penn Power Co. v. Train, 378 F.Supp. 941, 944-945

(W.D. Pa. 1974); cf. Luneburg and Roselle, Judicial Review

Under the Clean Air Amendments of 1970, 15 B.C. Ind. &

Com. L. Rev. 667, 691 n. 145 (1974).

Plaintiffs attempt to characterize the regulations’ exemption

of any facility on which construction was started before January

1, 1975 as a failure to promulgate regulations with respect to

such facilities. We think, however, that a provision defining the

scope of regulations and their effective date is as much a part

of the regulations as the substantive parts.

The explanations contained in the regulations for the exemp-

tion clause are “recent firm congressional guidelines contained

in amendments to the Clean Air Act,” compelling administrative

reasons, and the need to minimize disruptive effects on industry.

(39 Fed. Reg. at 7272-7273.) A review of the sufficiency of

these reasons requires an examination of the administrative

record, which is not before us now but would be if this were a

petition for review.

The exemption provision is an integral part of the regulations

and, like any other part, must be reviewed in a petition for

review. It cannot be reviewed by an action filed in the district

court.

Plaintiffs have in fact filed a separate petition for review of the

indirect source regulations in this court (No. 74-1231), and

that petition, together with others filed in various other circuits

attacking the indirect source regulations, has been transferred

on the EPA’s motion to the Court of Appeals for the District

of Columbia (No. 74-1595 in that court). Their contentions

concerning the validity of the exemption provision will presum-

ably be determined in that litigation.

A23

The Failure to Promulgate Significant Deterioration Regulations

for Automobile-Related Pollutants

Regulations for two air pollutants, particulate matter and

sulfur dioxide, having been promulgated after the complaint

was filed (see note 2, supra), plaintiffs now seek to require

the Administrator to promulgate regulations for carbon mon-

oxide and the other automobile-related pollutants for which he

had established national ambient air standards.

As the District Court pointed out, the Administrator has

already been ordered in Sierra Club v. Ruckelshaus, supra, to

promulgate significant deterioration regulations. Counsel for the

government, in their brief in this court, represented that the

Administrator had complied with this order, and “{t]herefore,

since the significant deterioration regulations have already been

published, the issue of any prior failure to promulgate them

is rendered moot.” Because, as is apparent from the regulations

and the Administrator’s introductory statement accompanying

them (39 Fed. Reg. 42,510 (Dec. 5, 1974)), and as counsel

for the government acknowledged during oral argument, the

regulations that have been promulgated relate to only two of

the six identified pollutants, the case is not moot as to this

point. Whether there is a need for a second order against the

Administrator to do that which he has already been ordered

to do in the Sierra Club case is a question we need not reach,

because we find that this claim is not maintainable by plaintiffs

at this time.

Section 304(a) of the Amendments, 42 U.S.C. § 1857h—

2(a), provides in pertinent part as follows:

“Except as provided in subsection (b), any person may

commence a civil action on his own behalf—

“(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this Act which is not discretionary with the Ad-

ministrator.”

A24

Subsection (b), 42 U.S.C. § 1857h—2(b), imposes the follow-

ing limitation upon this right to sue:

“No action may be commenced—

“(2) under subsection (a)(2) of this section prior to

GO days after the plaintill has given notice of such action

to the Administrator, ... .”*

Plaintiffs failed to give the Administrator sixty days notice

prior to commencing suit, which the District Court held was

fatal to its jurisdiction under section 304. The court reasoned

that the purpose of the sixty-day notice requirement was to give

the Administrator time to assess and respond to difficult, multi-

count lawsuits, to deploy attorneys from Washington, if neces-

sary, and to arrange for the on-going process of regulatory

development and other substantive EPA concerns despite the

interruption caused by a pending lawsuit. The statute’s sixty-day

notice requirement would be nullified, said the court, if plaintiffs

were required to do nothing more than comply with Fed. R. Civ.

P. 12(a), which grants the United States, or an officer or em-

ployee thereof, sixty days in which to answer a complaint in

any civil suit. City of Highland Park v. Train, supra, 374

F.Supp. at 766-767. In accord with the District Court's holding

are Pinkney v. Ohio Environmental Protection Agency, supra,

375 F.Supp. at 308, and West Penn Power Co. v. Train, supra,

378 F.Supp. at 944. Cf. Metropolitan Washington Coalition

for Clean Air v. District of Columbia, 373 F.Supp. 1089, 1092

(D.D.C. 1974).* Contra, Riverside v. Ruckelshaus, 4 E.R.C.

1728 (C.D. Cal 1972).°

3. The statute also specifies certain exceptions to this notice

requirement that are not applicable here.

4. The Metropolitan Washington Coalition case is consistent,

in our view, with the holding of Pinkney and West Penn Power Co.

Hd rover in Metropolitan Washington Coalition, although they

to give the required sixty-day notice before filing their first

a ee eens ene ye ns Mp SamnO eaneee Saane

than sixty days after service of the first. This, as the court

held, in substance afforded the Administrator the sixty-day notice

to which he was entitled under section 304(b).

5. In response to the Administrator’s argument that plaintiffs’

failure to comply with the statutory notice requirement of section

A2s

The legislative history of section 304 shows Congrew’s deter-

mination that citizen participation in the enforcement of stand.

ards and regulations under the Clean Air Act of 1970 be esta

lished. It also shows, however, that Congress intended to provide

for citizens’ suits in 2 manner that would be least Bkely to clog

already burdened federal courts and mont likely to trigger gor-

ernmental action which would alleviate any seed for paducnal

relief. It was in response to these concerns that the statutory

notice provisions were included in section 304° Comgren's

intention would be frustrated if the statutory mandate of sexton

304(b) were ignored.’

The language chosen by Congress makes & cheer Gut Ge

Administrator is to be given notice in ackitiom to thet rrgeieed

by Rule 12(a), Fed. R. Civ. P., which allows hice ciety dope

to answer or move against a complaint by which ae actos &

bse

;

ptt

beSife

hil

ilste

A26

Alternatively, plaintiffs argue that other remedies are avail-

able. The first of these is statutory mandamus, 28 U.S.C.

§ 1361, which provides that “district courts shall have original

jurisdiction of any action in the nature of a mandamus to

compel an officer or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff.”

Among the courts and legal scholars there have been

repeated efforts to ascertain the precise scope and limitations of

section 1361.° For purposes of the present case, however, we

need not be concerned with defining the jurisdictional reach

of that section. However broad its scope, mandamus cannot be

invoked to require the District Court to order the Administrator

to promulgate significant deterioration regulations.

The traditional principles generally recognized as controlling

the issuance of a writ of mandamus were concisely stated by the

court in Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir.

1972), cert. denied, 411 U.S. 918 (1973), as follows:

“(1) a clear right in the plaintiff to the relief sought;

(2) a plainly defined and peremptory duty on the part of

the defendant to do the act in question; and (3) no other

adequate remedy available.”

8. ee SS ee Congress intended 28 U.S.C.

§ 1361 to extend mandamus jurisdiction, formerly exercised only

the District Court for the District of Columbia, to district courts

, and thereby authorize suits against officials who fail to

perform ministerial acts, ee ee ee eee

the purview of the common law writ of mandamus was broadened

by the inclusion of the words “in the nature of” before the word

“mandamus” in section 1361, or whether Congress meant only to

make the writ available as it was at common law. Compare Burnett

v. Tolson, 474 F.2d 877, 880 (4th Cir. 1973), State Highway Com-

mission of Missouri v. Volpe, 479 F.2d 1099, 1104-1105 n. 6

(8th Cir. 1973), and Peoples v. United States Dep't of Agriculture,

427 F.2d 561, 565 (D.C. Cir. 1970) with K. Davis, Administrative

Law Treatise § 23.09 (Supp. 1970), and Byse & Fiocca, Section

1361 on the Mandamus and Venue Act of 1962 and “Nonstatutory”

Judicial Review of Federal Administrative Action, 81 Harv. L. Rev.

308, 318-320 (1967). For cases adopting the traditional and more

prevalent view of section 1361 see Carter v. Seamans, 411 F.2d

767, 773 n. 11 (Sth Cir. 1969), cert. denied, 397 U.S. 941 (1970).

A27

See also United States ex rel. Girard Trust Co. v. Helvering,

301 U.S. 540, 543-544 (1937).

There is, as we have have seen, another remedy available,

that provided in section 304(a)(2) of the Clean Air Amend-

ments of 1970, which affords any person a direct remedy to

compel the Administrator to perform a non-discretionary duty.

Plaintiffs have not shown that the necessity of complying with

the notice provision rendered that remedy inadequate in

this case.

It is, accordingly, unnecessary for us to reach the question

of whether there exists that “plainly defined” duty (Lovallo v.

Froehlke, supra, 468 F.2d at 343), the performance of which

is positively commanded and so plainly prescribed as to be free

from doubt (United States vy. Walker, 409 F.2d 477, 481

(9th Cir. 1969)), that is necessary to warrant the issuance of a

writ of mandamus. We do note that the matter was doubtful

enough to cause the Administrator, whose expertise in inter-

preting the statute is entitled to weight, to conclude that the

duty did not exist and to cause the Supreme Court in the

Sierra Club case to divide equally on the question of whether

he was right. But cf. Roberts vy. United States, 176 U.S. 221,

231 (1899).

Plaintiffs also argue that the District Court had jurisdiction

to grant the relief requested against the Administrator under

28 U.S.C. § 1331, the general federal question statute, and the

ievised Administrative Procedure Act, 5 U.S.C. §§ 702-705.

Until the mandamus statute, 28 U.S.C. § 1361, was adopted

in 1962, the federal district courts did not have mandamus

jurisdiction, Covington & Cincinnati Bridge Co. v. Hager, 203

U.S. 109 (1906), except in the District of Columbia, Fagan v.

Schroeder, 284 F.2d 666, 668 (7th Cir. 1960), where it

existed through historical accident. S. Rep. No. 1992, 87th

Cong., 2d Sess. (1962), reprinted in 1962 U.S. Code Cong.

A28

& Admin. News 2784, et seq. Section 1361 was adopted to

remedy this deficiency and give mandamus jurisdiction to

district courts outside the District of Columbia. (/d.) In light of

this history, it might be questioned whether relief in the nature

of mandamus should be granted in an action in which

subject matter jurisdiction is based on section 1331.° Assuming,

however, that the equivalent of mandamus is available through

the court’s equity powers, the existence of another adequate

remedy would still preclude relief. This is not the kind of case

in which it would be appropriate for federal courts to “adjust

their remedies so as to grant the necessary relief’ for the

invasion of federally protected rights. Cf. Bell v. Hood, 327

U.S. 678, 684 (1946). There is no need for a new remedy,

because, as we have said, an adequate statutory remedy for

protecting rights of the kind asserted by plaintiffs is provided

by the very statute that creates the rights.

The revised Administrative Procedure Act, insofar as per-

tinent here, defines agency action which is subject to judicial

review under that act as “Agency action made reviewable by

statute and final agency action for which there is no other

adequate remedy in a court... .” 5 U.S.C. § 704. Here, as we

have held, there is the “other adequate remedy in a court,”

provided by section 304 of the Clean Air Amendments of

1970, and, while that statute makes the Administrator’s failure

to promulgate regulations reviewable, it does so subject to a

condition which has not been met here, compliance with the

notice requirement. The agency action here is “made reviewable

by statute” only if the condition is met.

9. The Supreme Court’s view once was that a mandatory injunc-

tion could not be used to achieve the same results as mandamus,

e.g., Smith v. Bourbon County, 127 U.S. 105 (1888), but later

decisions tend to suggest otherwise, Virginia Ry. v. System Feder-

ation, 300 U.S. 515, 551 (1937), cf. Panama Canal Co. v. Grace

Line, Inc., 356 U.S. 309, 318 (1958), and a number of lower

courts have used mandatory injunctions to perform the function

of mandamus. See H. Hart and H. Wechsler, The Federal Courts

and the Federal System, 1384-1385 & n. 6 (2d ed. 1973).

A29

In Natural Resources Defense Council, Inc. v. Train, 510

F.2d 692, 698-703 (D.C. Cir. 1975), the majority held that

under the Federal Water Pollution Control Act, the pertinent

provisions of which are substantially the same as those of the

Clean Air Act, judicial review could be obtained under the

Administrative Procedure Act, 5 U.S.C. § 704 and, apparently,

under 28 U.S.C. § 1331 also, and refers to the Clean Air Act and

its legislative history as a basis for its holding. The majority’s

opinion does not contain a discussion of the meaning of the

phrase “made reviewable by statute” in 5 U.S.C. § 704, but

bases its holding on the saving provision of the Federal Water

Pollution Control Act, 33 U.S.C. § 1365(e), which is sub-

stantially the same as the saving provision in section 304 of

the Clean Air Amendments of 1970, 42 U.S.C. § 1857h-2(e),

and the statements in the legislative history that other remedies

were not impaired by the act. The opinion does not give any

reasons for the court’s apparent holding that jurisdiction was

also conferred by 28 U.S.C. § 1331. Judge Robb’s dissent

argues that the 60-day notice requirement should control. (510

F.2d at 730-731.) With deference, we believe that the saving

provision, expressing the general intention of Congress not to

disturb existing rights to seek relief, does not have the affirma-

tive effect of removing conditions which existing law imposes

upon the exercise of those rights, We conclude, for the reasons

stated above, that the conditions imposed by existing law upon

the right to seek relief under either 28 U.S.C. § 1331 or 5

U.S.C. § 704 have not been met. We are not holding that if the

remedy provided by the statute were inadequate in the circum-

stances of a partcular case, other remedies would be unavail-

able.’°

10. The portion of this opinion dealing with the availability of

remedies other than the right of action provided by section 304 to

review the Administrator’s failure to promulgate signfiicant deteriora-

tion regulations has been circulated among all the judges of this

court in regular active service, in view of the possible inconsistency

between our holding and that of the Court of Appeals for the District

A30

The final additional basis for jurisdiction alleged in the com-

plaint, but not urged here, is the Declaratory Judgment Act, 28

U.S.C. §§ 2201, 2202. While the availability of another remedy

does not preclude declaratory relief, a court may properly

decline to assume jurisdiction in a declaratory action when the

other remedy would be more effective or appropriate (6A J.

Moore, Federal Practice § 57.08{3], p. 57-43 (2d ed. 1974)),

as we find to be the case here.

Dispositions as to Counts I and II

Since neither judicial review of the indirect source regula-

tions nor mandatory relief to compel the promulgation of

significant deterioration regulations for pollutants related to

automobiles is available in the proceedings before us, there is

no basis in the allegations of Counts I and II for plaintiffs’

demand for ar injunction against further construction on the

highway expansion and the shopping center until their claims

concerning these regulations are finally resolved. We cannot

find at this stage a sufficient likelihood that regulations entitling

plaintiffs to such injunctive relief will ultimately be promulgated

to justify an award of injunctive relief. We therefore affirm the

dismissal of Counts I and II.

Count lll: Absence of an Environmental Impact Statement

Plaintiffs allege in Count III that portions of the expansion of

Lake-Cook Road are to be constructed with federal funds, and

that the United States Department of Transportation was there-

fore required by the National Environmental Policy Act of

1969 (“NEPA,” 42 U.S.C. §§ 4321, ef seq.) to prepare an

environmental impact statement concerning the expansion,

which has not been prepared. They seek an order requiring the

preparation of such a statement and an injunction prohibiting

of Columbia Circuit. No member of the court voted to rehear the

case in banc.

A31

the construction of the improvements on the road by Cook

County Department of Highways until the statement is prepared.

The motions to dismiss by the defendants under this count were

supported and opposed by affidavits and documents, and there-

fore were treated by the District Court, under the authority of

Rule 12(c), Fed. R. Civ. P., as motions for summary judgment.

The court granted the motions.

Plaintiffs now question the propriety of deciding the issues

under Count III by a summary judgment. They appear not

to have raised this question when they submitted matter outside

the pleadings in opposition to the motions, and did not suggest

in their papers in opposition in the District Court the existence

of any other evidence bearing on the issues. They had ample

Opportunity to present all material pertinent to the motion.

The court properly determined that there was no genuine issue

as to any material fact.

NEPA requires each federal agency, before taking any

“major Federal actions significantly affecting the quality of

the human environment,” to prepare a “detailed statement”

analyzing, among other things, “the environmental impact of

the proposed action.” (42 U.S.C. § 4332(2)(C).) “Actions”

include projects supported in whole or in part by federal

funding. (40 C.F.R. § 1500.5(a) (2) (1974).) Plaintiffs con-

tend that federal funding has been requested for a 2.47 mile

segment of the Lake-Cook Road, and that therefore the require-

ments of NEPA are applicable to the entire road expansion

project.

The documentary evidence submitted below indicates that

that the 2.47 mile segment of the road has received

“federal-aid secondary system” designation. Designation, how-

ever, is merely the first step in the procedure for obtaining

federal funds for highway improvement. The Federal-Aid

Highway Acts indicate that before federal funding is obtained

the project must be programmed by a state agency for federal

A32

funding and then approved by both the state highway depart-

ment and federal authorities. (23 U.S.C. §§ 103(c), (f), 105,

and 106.) It is undisputed that this designation was made long

before the enactment of NEPA, and there is accordingly no

basis for a contention that the road improvement project was

segmented to circumvent the Act. See River v. Richmond

Metropolitan Authority, 359 F.Supp. 611, 633-636 (E.D. Va.

1973), aff'd per curiam, 481 F.2d 1280 (4th Cir. 1973).

Plaintiffs submitted, in opposition to the motion, documents

which they contend prove that federal funds have been applied

for. They consist of a letter from the County Department of

Transportation transmitting a county resolution to have Federal

Aid Secondary Route (“FAS”) 122 (the approximately .5

mile segment between Pfingston and Waukegan Roads) pro-

grammed for federal funding; the resolution itself; the Illinois

Department’s letter to the County Department approving the

resolution; a similar set of letters and a resolution concerning

FAS 1013 (the approximately 2 mile segment between

Sanders and Pfingston Roads); and a document entitled

“Draft/Combined Corridor and Design Environment Statement/

Administrative Action for Federal Aid Secondary Routes

1013 & 122,” which is not signed and has “Preliminary

11/16/73” written across it. These documents give no indica-

tion of federal involvement up to that point in the approval

process. Defendants submitted affidavits showing that there has

been no programming by the State of Illinois for federal

funding of the Lake-Cook Road improvement project, and that

no application for federal funds has been made. Counsel for

the Cook County Department of Highways represented at oral

argument that these facts were unchanged.

Thus the documents relied on by plaintiffs show nothing more

than a possibility that federal funds might be applied for. The

affidavits establish that no federal funds have in fact been ap-

plied for.

A33

One case sustained a preliminary injunction against construc-

tion of a highway project for failure to comply with a federal

relocation statute," holding that the project for a part of the

federal-aid primary system became a federal-aid highway project

for purposes of that statute when it received location approval’?

prior to any application for federal funds. La Raza Unida v.

Volpe, 488 F.2d 559 (9th Cir. 1973), cert. denied, 417 USS.

968 (1974). That case was not decided under NEPA, which

applies to proposed major federal actions and not to a federal-

aid secondary designation that took place long before NEPA

was adopted or to possible federal funding that is not proposed

at present. And, as the district court in River v. Richmond

Metropolitan Authority, supra, stated: “Notwithstanding the

fact that La Raza Unida declared a highway project to be fed-

eral early in the planning process, it most assuredly did not hold

that a project could be federal where no federal participation

had ever taken place.” 359 F.Supp. at 634. Possible future fed-

eral funding is all that the plaintiffs in the case at bar have

shown.

The Lake-Cook Road improvement appears from the sum- j

mary judgment papers to be a state project on which no federal

action is proposed, and therefore, NEPA’s requirement of an

environmental impact statement does not apply to the project.

See Citizens for Balanced Environment and Transportation, Inc.

11. Determining that this failure was a sufficient ground for }

granting preliminary relief, the district court found it unnecessary

to reach the question of whether defendants also violated NEPA,

which was alleged by plaintiffs. La Raza Unida vy. Volpe, 337

F.Supp. 221, 234 (N.D. Cal. 1971). The Court of Appeals did not

refer to NEPA.

12. The district court defined location approval as the second

stage of a highway project, in which the route is specifically estab-

lished within a corridor which has previously been defined. (/d. at

223-224.) Location approval cannot take place unless the state

highway department requests it and until a corridor public hearing

is held on the project. (23 C.F.R. §§ 790.9(e)(1), 790.2(a)

(1974).) Nothing comparable to these procedures has taken place

in the present case.

menaced

A34

v. Volpe, 503 F.2d 601 (2d Cir. 1974); Civic Improvement

Committee v. Volpe, 459 F.2d 957 (4th Cir. 1972); cf. Brad-

ford Township Vv. Illinois State Toll Highway Authority, 463

F.2d 537, 540 (7th Cir. 1972), cert. denied, 409 U.S. 1047

(1972).

Count IV: The Equal Protection Challenge

to the Zoning Ordinance

Plaintiffs allege in amended Count IV that the Village of

Northbrook and its trustees have deprived them of the equal

protection of the laws as guaranteed by the Fourteenth Amend-

ment and seek a judgment declaring invalid Northbrook’s zon-

ing approval of the proposed shopping center complex and an

injunction “barring future zoning approval until Northbrook

demonstrates that its residents have been subjected to similar

environmental assaults.” Jurisdiction is purportedly predicated

upon 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 2201

(declaratory judgment remedy) ; and 42 U.S.C. § 1983 (depriva-

tion of constitutional or federal statutory rights under color of

state law), and its jurisdictional correlative, 28 U.S.C. § 1343.

Plaintiffs allege in substance that, upon information and be-

lief, Northbrook and its trustees have “aggressively protected”

its residential areas from intrusion by massive commercial de-

velopments such as the proposed shopping center complex; that

their action in giving zoning approval to the proposed shopping

center complex will cause the eventual subjection of plaintiffs

to “vast increase in noise and air pollution as well as aesthetic

destruction of the quiet residential character of their com-

munity;” and that by exposing plaintiffs to these environmental

hazards, while protecting Northbrook residents from intrusion

of similar developments, Northbrook has discriminated against

them in violation of the Fourteenth Amendment. The amend-

ment to the complaint, in which plaintiffs joined the trustees of

the Village of Northbrook as additional defendants, did not

A35

specify any relief sought against them. The village and the

trustees moved to dismiss Count IV of the complaint for want

of jurisdiction as to it under 42 U.S.C. § 1983 and for failure to

state a claim for which relief could be granted.

As the District Court correctly held (City of Highland Park

Vv. Train, supra, 374 F.Supp. at 773), there is no jurisdiction

under 42 U.S.C. § 1983 over the claim against the village.

City of Kenosha v. Bruno, 412 U.S. 507, 513 (1973). Assum-

ing the existence of jurisdictional amount, we have jurisdiction

against the village on the claim based upon the Fourteenth

Amendment under 28 U.S.C. § 1331. The absence of any spe-

cific request for relief against the trustees may have justified

dismissal as to them, but in any event the complaint, as

amended, states no claim on which relief could be granted

against either the trustees or the village.

A zoning ordinance is clothed with every presumption of

validity. City of Ann Arbor, Mich. v. Northwest Park Constr.

Corp., 280 F.2d 212, 223 (6th Cir. 1960). Derived from the

States’ police power, the legislative authority which grants

municipalities the power to adopt and enforce zoning ordi-

nances and regulations is not to be narrowly confined, Village

of Belle Terre v. Boraas, 416 U.S. 1, 5-8 (1974); cf. Berman

Vv. Parker, 348 U.S. 26, 32-33 (1954). Unless it is based upon

a suspect classification or impinges upon a fundamental right

(see Village of Belle Terre v. Boraas, supra, 416 US. at 6,

7), which is not true in the case at bar, zoning legislation may

be held unconstitutional only if it is shown to bear no possible

relationship to the state’s interest in securing the health, safety,

morals, or general welfare of the public and is, therefore, mani-

festly unreasonable and arbitrary. E.g., Village of Euclid v.

Ambler Realty Co., 272 U.S. 365, 395 (1926) ;Gorieb v. Fox,

274 U.S. 603, 610 (1927); Aquino v. Trobiner, 298 F.2d

674, 677 (D.C. Cir. 1961). Thus the scope of judicial review

is limited.

A36

It is well established that “[iJn the area of economics and

social welfare, a States does not violate the Equal Protection

Clause merely because the classifications made by its law are

imperfect. If the classification has some ‘reasonable basis,’

it does not offend the Constitution simply because . . . ‘in prac-

tice it results in some inequality.’” Dandridge v. Williams, 397

U.S. 471, 485 (1960); see Village of Belle Terre v. Boraas,

supra, 416 U.S. at 8; Sinclair Refining Co. v. City of Chicago,

178 F.2d 214, 217 (7th Cir. 1950). As the Supreme Court

observed in Village of Euclid v. Ambler Realty Co., supra:

“[Llaws may . . . find their justification in the fact that, in some

fields, the bad fades into the good by such insensible degrees

that the two are not capable of being readily distinguished and

separated in terms of legislation.” (272 U.S. at 389.)

Inherent in all zoning legislation are statutory distinctions

which give rise to claims of disparity of treatment. Inevitably

areas zoned for nonresidential uses will touch areas zoned for

residential uses, and the burden of the zoning always falls most

heavily on the residents adjacent to the boundary. This is

essentially all that plaintiffs have alleged here, except that they

have framed their grievance in the rhetoric of equal protection.

Plaintiff residents of Highland Park and Glenbrook Country-

side allege no classification other than the distinction between

residents in close proximity to the proposed shopping center

and residents who live farther away. Such a classification, in-

herent in‘all zoning, is not within the purview of the Fourteenth

Amendment. Cf. L’Hote v. City of New Orleans, 177 U.S. 587,

597 (1899). “Some must suffer by the establishment of any

territorial boundaries. . . . If these limits hurt the [appellants],

other limits would hurt others.”(/d.) So long as such legisla-

tion applies equally to all persons similarly situated in a given

locale, there can be no violation of the Equal Protection Clause.

Cf. Caskey Baking Co. v. Virginia, 313 U.S. 117, 121 (1941);

United States v. Holmes, 387 F.2d 781, 785 (7th Cir. 1967),

cert. denied, 391 U.S. 936 (1968).

A37

Zoning is not rendered unconstitutional by the fact that

any direct benefit the plaintiffs may receive from it is less than

the possible burdens it may impose upon them. Plaintiffs having

failed in Count IV to state a claim upon which relief can be

granted, the District Court’s dismissal of that count is affirmed.

The Petition for Review

On January 6, 1975, plaintiffs filed in this court a petition

for review, No. 75-1006, seeking review of the significant

deterioration regulations promulgated by the Administrator on

December 5, 1974. That petition which states as petitioners’

sole grievance the Administrator’s failure to promulgate signif-

icant deterioration regulations with respect to carbon monoxide

and other automobile related pollutants was consolidated with

No. 74-1271 on the representation by petitioners that the same

substantive issues were involve in the two cases, the court

viewing the petition for review as an attempt by petitioners to

“safeguard their jurisdictional grounds.” (Order of February

11, 1975, denying motion to reconsider consolidation. )

No brief has been submitted in support of the petition for

review. We therefore do not have the benefit of petitioners’

views as to the appropriateness of a petition for review to

compel the Administrator to act. We think, however, that the

function of a petition for review is to invoke a review for

correctness by the Court of Appeals of regulations adopted

by the Administrator and not to compel the Administrator to

act when he has failed to act. Petitioners, in their petition for

review, do not challenge the significant deterioration regulations

on particulate matter and sulfur dioxide which the Admin-

istrator has promulgated. Their petition rather complains that

the Administrator “continues in his failure” to promulgate

regulations relating to carbon monoxide and other motor vehicle

related pollutants. The appropriate procedure for compelling

the Administration to act is that provided in section

A38

304(a), supra, which expressly provides for an action in the

district court “against the Administrator when there is alleged

a failure of the Administrator to perform any act or duty under

this Act which is not discretionary with the Administrator.”

section 304(a), but they failed to give statutory notice that

would have made their action viable. The petition for review

is dismissed.

AFFIRMED in No. 74-1271; Petition for Review Dismissep

in No. 75-1006.

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A40

The opinion filed June 10, 1975 is revised and corrected in

the respects shown in the revised and corrected opinion filed

this date.

The petition for rehearing is denied.

A4l

OPINION MODIFIED BY JUDGE TONE

UNITED STATES CouRT oF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

July 24, 1975

Before

Hon WALTER J. CuMMINGs, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. PHitip W. Tone, Circuit Judge

THe Crry or HIGHLAND Park, _) APpeal from the United

States District Court

ILLINOIS, etc., et al., for the Nortt Dis-

Plaintifs-Appellants, | trict of Tiinois, East.

No. 74-1271 vs, p ern Division

No. 73 C 3027

RUSSELL E. Tram, etc., et al,

Defendants-A ppellees. : Bernard M. Decker,

Tue City or HIGHLAND PARK, <

ILLINOIS, etc., et al.,

Petitioners, | Petition for Review of

an Order of the En-

No. 75-1006 vs. ; vironmental Protec-

tion Agency.

RUSSELL E. Trai, etc., et al.,

Respondents. |

A42

These causes came on to be heard on the transcript of the

record from the United States District Court for the Northern

District of Illinois, Eastern Division, and the Environmental

Protection Agency, and were argued by counsel. On June 10,

1975 an opinion was entered by this Court.

On consideration whereof, it is ordered and adjudged by this

Court that the judgment of the said District Court in appeal No.

74-1271 be and the same is hereby AFFIRMED, with costs, and

the Petition for Review in appeal No. 75-1006 be and the same

is hereby DisMIssED, in accordance with the modified opinion

of this Court filed this date.

A43

OPINION BY JUDGE TONE

UNITED STATES CouRT oF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

June 10, 1975

Before

Hon WALTER J. Cummincs, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. PHILIP W. Tone, Circuit Judge

| Appeal from the United

THE CiTy oF HIGHLAND PARK, States District Court

ILLINOIS, etc., et al. .

Age ata geae for the Northern Dis-

Plaintiffs-Appellants, | trict of Winois, East-

No. 74-1271 vs. seus eng

No. 73 C 3027

Bernard M. Decker,

Judge.

RUSSELL E. TRAIN, etc., et al.,

Defendants-Appellees. |

THE City oF HIGHLAND PARK,

ILLINOIS, etc., et al.,

Petitioners, | Petition for Review of

an Order of the En-

No. 75-1006 vs. ; vironmental Protec-

tion Agency.

RUSSELL E. TRAIN, etc., et al.,

Respondents. |

A44

These causes came on to be heard on the transcript of the

record from the United States District Court for the Northern

District of Illinois, Eastern Division, and the Environmental

Protection Agency, and were argued by counsel.

On consideration whereof, it is ordered and adjudged by

this court that the judgment of the said District Court in appeal

No. 74-1271 be and the same is hereby AFFIRMED, with costs,

and the Petition for Review in appeal No. 75-1006 be and the

same is hereby DisMIssED, in accordance with the opinion of this

court filed this day.

A45

IN THE UNITED STATES CouRT OF APPEALS

For the Seventh Circuit

No. 74-1271

THE City oF HIGHLAND PaRK, ILLINOIS, ETC., ET AL.,

Plaintiffs-A ppellants,

RUSSELL E. TRAIN, ETC., ET AL.,

Defendants-A ppellees.

Appeal from the United States District Court for the Northern

District of Illinois, Eastern Division—No. 73 C 3027

Bernard M. , Judge.

No. 75-1006

THE CITY OF HIGHLAND PaRK, ILLINOIS, ETC., ET AL.,

Petitioners,

Vv.

RUSSELL E. Train, as Administrator of the United States

Environmental Protection Agency, and UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

Petition for Review of an Order of the

Environmental Protection Agency

Argued Februrary 21, 1975—Decided June 10, 1975

Before CUMMINGS, SPRECHER and Tone, Circuit Judges.

Tone, Circuit Judge. In the principal case before us in

these consolidated proceedings, No. 74-1271, plaintiffs sue to

block the construction of a shopping center and the extension

A46

and widening of the road along which the shopping center is to

be built, relying upon the Clean Air Amendments of 1970, the

National Environmental Protection Act, and the Equal Protec-

tion Clause of the Fourteenth Amendment. They seek to compel

the Administrator of the Environmental Protection Agency to

promulgate “indirect source” and “significant deterioration”

regulations which they hope would preclude the construction

of the shopping center and the road expansion (Counts I and

II) and to enjoin the road expansion until the Department of

Transportation has filed an environmental impact statement

pursuant to the National Environmental Protection Act (Count

III). Plaintiffs also allege that the Village of Northbrook has

denied them equal protection by the adoption of a zoning ordi-

nance which permits the construction of the shopping center

(Count IV).

The District Court dismissed the claims under the Clean Air

Amendments for failure to comply with the 60-day notice

requirement of section 304, 42 U.S.C. § 1857h-2, for failure

to state a claim on which relief can be granted, and on the

ground that some of the relief requested was already the subject

of orders issued by other federal courts. Finding it undisputed

that there was no federal involvement in the road expansion

project, the court granted summary judgment on the claim

that an environmental impact statement should have been filed.

The equal protection claim was also held to be without merit.

The court entered an order dismissing the action, City of High-

land Park v. Train, 374 F.Supp. 758 (N.D. Ill. 1974), from

which plaintiffs appeal and which we affirm.

Plaintiffs are two municipalities adjacent to the site of the

proposed shopping center, a non-profit corporation dedicated

to protecting the environment in the area, and various indi-

viduals who reside near the site. The defendants are the Ad-

ministrator of the Environmental Protection Agency, the agency

itself, the Secretary of the Department of Transportation, the

department itself, the Department of Highways of Cook County,

- A47

Illinois, the developers of the shopping center, proposed tenants

of the shopping center, the Village of Northbrook, in which the

shopping center will be located, and the trustees of the village.

The right of way of Lake-Cook Road extends from Lake

Michigan along the entire boundary between Lake and Cook

Counties to the western end of the boundary and continues on

west to the Fox River. Between Milwaukee Avenue and Rand

Road, the road is not completed. Where it is completed, it is, for

the most part, two lanes wide. In 1967 the Cook County High-

way Department initiated plans to expand the completed por-

tions of the road to four lanes and to construct a four-lane

extension on the right-of-way where no actual roadway presently

exists.

In January, 1973, certain of the defendants anounced a plan

for the construction of a shopping center on the south side of

Lake-Cook Road between Skokie Highway and Waukegan

Road. The shopping center, according to the complaint, will

occupy one million square feet, have a parking lot accommodat-

ing 5,000 cars, and generate 28,400 vehicle trips per day.

Ninety percent or more of this traffic will be carried by Lake- 4

Cook Road, the only through-street which provides access to

the shopping center. Plaintiffs allege that this traffic “will over- E

whelm even the proposed four lane expanded roadway,” and ;

cause “intolerable” congestion at the intersections of Lake-Cook

Road and Skokie Highway and Waukegan Road. As a result, j

residents of the area will be subjected to substantial “noise

and discomfort in the use of their homes and in the use of the

Streets in their community” and will be exposed to increases in

the concentration of carbon monoxide in the ambient air by

more than 66 percent over existing levels.

The Clean Air Amendments

and Their Implementation

To explain plaintiffs’ claims under the Clean Air Amend-

ments of 1970, it is necessary to begin by summarizing pertinent :

parts of that legislation and its implementation by actions of the 1

Py a ie eh neo ee

A48

Administrator and the states and by certain court decisions.

The background and a more complete history of the amend-

ments and their implementation to date appear in Mr. Justice

Rehnquist’s opinion for the Supreme Court in Train v. Natural

Resources Defense Council, Inc., 43 U.S.L.W. 4467 (U.S.

April 16, 1975).

When the states did not act to fulfill their “primary responsi-

bility” for prevention of air pollution under earlier federal clean

air legislation. “Congress reacted by taking a stick to the states

in the form of the Clean Air Amendments of 1970, Pub. L.

91-604, 84 Stat. 1676, enacted on December 31 of that year.”

Train V. Natural Resources Defense Council, Inc., supra, 43

U.S.L.W. at 4468. The 1970 Amendments established a pro-

gram to control air pollution to be carried out by the federal

government and the states. The parts of the Amendments

pertinent here may be summarized as follows:

The Administrator was required, before specified dates, to

publish a list of air pollutants and issue “air quality criteria”

containing information about each listed pollutant and its effects

on the air. (Section 108, 42 U.S.C. § 1857-—3.) He was also

required to establish national “ambient air quality standards”

for each air pollutant for which air quality criteria were issued.

(Section 109, 52 U.S.C. § 1857-—4.) The states have primary

authority to establish “implementation plans” to achieve these

standards, but these plans are subject to review by the Admini-

strator. (Section 110, 42 U.S.C. § 1857c—S.)

Two sets of standards were to be prescribed by the Admini-

strator, “primary standards,” the “attainment and maintenance

of which, in the judgment of the Administrator, based on [air

quality] criteria and allowing an adequate margin of safety, are

requisite to protect the public health;’ and “secondary stand-

ards,” which “shall specify a level of air quality the attainment

and maintenance of which, in the judgment of the Administrator,

based on such criteria, is requisite to protect the public welfare

from any known or anticipated adverse effects associated with

A49

the presence of such air pollutants in the ambient air.” (Section

109(b), 42 U.S.C. § 1857¢-—4(b).) The Administrator pre-

scribed these standards within the time allowed him by the Act.

Within nine months after the Administrtor’s promulgation

of the national standards, each state was to submit to him a

\ plan providing for the “implementation, maintenance, and en-

| forcement” of the standards. (Section 110(a)(1), 42 U.S.C.

§ 1857-—5(a) (1). Each state plan was required to provide for

the attainment of the national primary standards “as expedi-

tiously as practicable” and not later than three years after the

date the Administrator approved the plan. (Section 110(a) ( 2)

(A) (i), 42 U.S.C. § 1857-—S(a)(2)(A)(i.) The national

secondary standards were to be met within a “reasonable time”

to be specified in the plan. (Section 110(a)(2)(A) (ii), 42

U.S.C. § 1857c-—5(a)(2)(A)(ii).) Each state plan was to

include “emission limitations, schedules, and timetables for com-

pliance with such limitations, and such other measures as may

be necessary to insure attainment and maintenance of such pri-

mary or secondary standard, including, but not limited to, land-

use and transportation controls.” (Section 110(a)(2)(B), 42

U.S.C. § 1857~-—5(a) (2) (B).) Other prerequisites to ap-

proval by the Administrator are set forth in the Act. (Section

110(a)(2)(C) through (H), 42 U.S.C. § 1857c—S5(a)(2)(C)

through (H).)

Within four months after the date a state plan was required

to be submitted, the Administrator was required to review the

plan to determine whether it satisfied the Statutory requirements

and to approve or disapprove the plan or each portion thereof.

Section 110(a), 42 U.S.C. § 1857c—S5(a). If the Administrator

determined that a state’s plan or any portion thereof did not

f, Satisfy the statutory requirements, he was to disapprove the

{ plan, or the offending portion thereof, and, within six months

after the date the plan was required to be submitted, promulgate

his own implementation plan or portion thereof for that State.

(Section 110(c)(1), 42 U.S.C. § 1857c—5(c)(1).)

8 eS ..L.2.2.a.a._._——Q—weGcqQals

A50

Significant Deterioration Regulations

During the period he was reviewing state plans, the Ad-

ministrator questioned his authority to require those plans to

protect against “significant deterioration” of air quality in areas

in which the air was cleaner than required by the national

standards, when that significant deterioration would not result

in pollution violative of the national standards. He took the

position that he would not demand such provisions in state

plans. See Sierra Club v. Ruckelshaus, 344 F.Supp. 253, 254

(D.D.C. 1972), aff'd per curiam, 4 E.R.C. 1815 (D.C.Cir.

1972), aff'd by an equally divided Court sub nom. Fri v. Sierra

Club, 412 U.S. 541 (1973). In the Sierra Club case the court

held, on motion for preliminary injunction, that the Admini-

strator had a non-discretionary duty to protect the air quality

from significant deterioration and issued a preliminary injunc-

tion prohibiting him from approving state plans “which allow

pollution levels of clean air to rise to the secondary standard

level of pollution.” 344 F.Supp. at 256. The court ordered the

Administrator to promulgate proposed significant deterioration

regulations within six months as to any state plan which per-

mitted or failed to take measures sufficient to prevent significant

deterioration. 2 E.L.R. 20262, 20263.

As a result of that decision the Administrator again reviewed

all state implementation plans and disapproved them to the ex-

tent that they failed to prevent significant deterioration of air

quality. (40 C.F.R. § 52.21 (1974), 37 Fed. Reg. 23,836

(Nov. 9, 1972).) One of the plans affected was that of Illinois,

which had been submitted to the Administrator on January 31,

1972, and given partial approval on May 26, 1972. (40 C.F.R.

§ 52.722 (1974), 37 Fed. Reg. 10,842 (May 31, 1972).) In

response to his duty under the court’s order in the Sierra Club

1. See also Natural Resources Defense Council, Inc. v. Train,

489 F.2d 390, 408 (5th Cir. 1974), rev’d on other grounds, supra,

43 U.S.L.W. 4467; Exxon Corp. v. City of New York, 372 F.Supp.

335, 339 (S.D.N.Y. 1974).

AS1

case the Administrator proposed (38 Fed. Reg. 18,986 (July

16, 1973)) and reproposed (39 Fed. Reg. 31,000 (Aug. 27,

1974)) rules on the prevention of significant air quality de-

terioration. Eventually he promulgated regulations for two of

the six air pollutants for which he had earlier promulgated

national ambient air quality standards under his statutory duty.”

(39 Fed. Reg. 42,510 (Dec. 5, 1974).) These regulations are

intended to prevent significant deterioration in the quality of

air for two pollutants, particulate matter and sulfur dioxide,

by limiting increases in the concentrations of those pollutants

in areas where the present level of pollution is less than re-

quired by the national ambient air quality standards. This is

to be accomplished by dividing those areas in which the level

of pollution does not presently exceed the national ambient air

quality standards into three classes in which increases in con-

centration of the two pollutants are limited by different amounts.

The Administrator Originally classified all areas, but the states,

after a public hearing and subject to other requirements, may

submit to the Administrator proposals for reclassification of areas.

No final regulations have been promulgated for the other four

pollutants as of yet. The Administrator, therefore, has not yet

complied with the Sierra Club order.

OO Al ips AcE pct

Indirect Source Regulations

When the Administrator gave partial approval to the Illinois

implementation plan on May 26, 1972, he also granted to

Illinois, as he did to a number of other states, extensions until

February 15, 1973, to submit the transportation portion of its

2. The six pollutants originally identified were sulfur dioxide,

particulate matter, carbon monoxide, photochemical oxidants, hydro-

carbons, and nitrogen dioxide. (40 C.F.R. §§ 50.4—50.11 (1974).)

The original Proposed rules referred to in the text broadened

“nitrogen dioxide” to “nitrogen oxide” and omitted photochemical

oxidants, apparently because they are formed from hydrocarbons

and nitrogen dioxides and do not exist otherwise, and therefore do

not require separate treatment. This part of the proposed rules

required only that the best possible technology be used.

lemmas

AS2

implementation plan. Several other states were given watil

mid-1977 to attain the national primary standards. (37 Pad.

Reg. 10,842 (May 31, 1972).) The Count of Appeals for

the District of Columbia, on a petition for

maintenance of national standards, but granted te wes op

other opportunity to develop adequate program. (40 CFR

§ 52.22(a) (1974), 38 Fed. Reg 6280 (March &, 1973).)

The Administrator, pursuant t the order of the Comt of

Appeals for the District of Columbia ia Nerural Resources De-

fense Council, Inc. v. EPA, then prommigeted regulations t

insure the maintenance of national etardards by) rnqerung tans

implementation plans to conta procedures for trounw of a

mew stationary source of modification that might “inaerfew

with attainment of maintenance of a standard ether dite)

because of emmaom from it, of imdaectty. because of emissions

resulting from mobile source activities amcciated wah a” (40

CPR. § 51.18 (1974), 38 Fed. Reg 15,834, 15.496 hoe

18, 1973).) He suggested guidclices to awit the ste ie

complying with the requirements of section $1.18 (ie Ap

peadian O wt 40 CPR $51.18.)

The Administrator was sho required by Nationa Rewneres

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AS4

of indirect source regulations, but also an injunction against

construction of the shopping center until proper regulations have

been promulgated. Since the developer defendants and the

tenant defendants were necessary parties in a claim seeking such

an injunction, the case is not moot as to them. The failure to

state the relief sought against these defendants is not a basis

for dismissal of the appeal as to them in the circumstances of

this case. We therefore deny the motion to dismiss and turn to

the merits of the appeal.

Counts I and Il: The Regulations

In Count I of their complaint plaintiffs allege that the

Administrator has been in violation of the provisions of the

ASS

rather than by considering separately Counts I and II of their

complaint.

Review of the Indirect Source Regulations

lations after the complaint was filed, plaintiffs’ grievance now

is that those regulations exempt indirect sources on which con-

struction was commenced before January 1, 1975, as it was

on the shopping center involved in this case.

Section 307(b)(1) of the Amendments, 42 U.S.C. §1857h—

5(b)(1), provides in pertinent part:

“A petition for review of the Administrator's action in. . .

ulgating any implementation plan under section

1857c—S of this title [section 110 of the Amendments]...

may be filed only in the United States Court of Appeals

for the appropriate circuit.”

The indirect source regulations are subject to this section. Enti-

tled “Review of Indirect Sources” (39 Fed. Reg. 7270-7285

(Feb. 25, 1974)), they purport to be promulgated pursuant

to section 110, 42 U.S.C. § 1857c—S. It is so stated in the

Administrator's comments in the first part of the regulations.

Furthermore, the regulations contain the subtitle, “Approval and

Promulgation of Implementation Plans,” which is the statutory

language used in section 307. The regulations set out the nation-

“Subpart O—Illinois

“25. Subpart O is amended by adding § 52.736 as fol-

lows:

“§ 52.736 Review of new sources and modifications.

“(a) The requirements of § 51.18 of this chapter are not

met because the State failed to submit a plan for review

of new or modified indirect sources.

A56

“(b) Regulation for review of new or modified indirect

sources. The provisions of § 52.22(b) of this chapter are

hereby incorporated by reference and made a part of the

applicable implementation plan for the State of Illinois.”

39 Fed. Reg. at 7281.

Since the regulations incorporate the federal standards into the

state plans, the Administrator is in effect promulgating imple-

mentation plans where state plans are deficient, in accordance

with section 110(c) (42 U.S.C. § 1857c—5), which is to be

reviewed only under section 307(b)(1) (42 U.S.C. § 1857h—

5(b)(1)).

Other courts of appeals have held under analogous circum-

stances that a petition for review under section 307(b)(1) is

the exclusive method of review. In Getty Oil Co. v. Ruckels-

haus, 467 F.2d 349, 355-356 (3d Cir. 1972), cert. denied, 409

U.S. 1125 (1973), the court refused to permit, in an action

filed in the district court, what amounted to an attack on the

compliance date in regulation in the Delaware plan limiting the

amount of sulfur content in burning fuel, holding that the

sole remedy was a petition for review to the court of appeals

under section 307(b)(1). Also supporting the rule that a peti-

tion under that section is the sole remedy for reviewing the

promulgation or implementation of clean air plans and regu-

lations are Plan for Arcadia, Inc. v. Anita Associates, 501 F.2d

390, 392 (9th Cir. 1974), cert. denied, _. U.S. _, 95 S.Ct.

517 (1974); and Anaconda Co. v. Ruckelshaus, 482 F.2d

1301, 1304 (10th Cir. 1973). One district court decision is

squarely in point, Pinkney v. Ohio Environmental Protection

Agency, 375 F.Supp. 305, 309 (N.D. Ohio 1974), in which the

alternative ground for dismissal of a challenge to the 180-da

delay in the effective date of the indirect source regulations

was that the exclusive remedy was a petition for review under

section 307(b)(1). Similarly, in Delaware Citizens for Clean

Air, Inc. Vv. Stauffer Chemical Co., 367 F.Supp. 1040, 1046

(D. Del. 1973), the court refused, on the same ground, to

AS7

entertain an action to challenge a state-granted variance from

compliance with a sulfur dioxide emission regulation, which the

Administrator had treated as a deferral of compliance amount-

ing to a revision of the state implementation plan and approved

as such. See West Penn Pawer Co. v. Train, 378 F.Supp. 941,

944-945 (W.D. Pa. 1974); cf. \Luneburg and Roselle, Judicial

Review Under the Clean Air Amendments of 1970, 15 B.C.

Ind. & Com. L. Rev. 667, 691 m. 145 (1974).

Plaintiffs attempt to characteirize the regulations’ exemption

of any facility on which construction was started before Janu-

ary 1, 1975 as a failure to promulgate regulations with respect

to such facilities. We think, however, that a provision defining

the scope of regulations and their effective date is as much a

part of the regulations as the swhbstantive parts.

The explanations contained in, the regulations for the exemp-

tion clause are “recent firm congressional guidelines contained

in amendments to the Clean Aiir Act,” compelling administra-

tive reasons, and the need to minimize disruptive effects on

industry. (39 Fed. Reg. at 7272-7273.) A review of the suffi-

ciency of these reasons requires an examination of the admin-

istrative record, which is not before us now but would be if

this were a petition for review.

The exemption provision is an integral part of the regulations

and, like any other part, myst be: reviewed in a petition for re-

view. It cannot be reviewed by an action filed in the district

court.

Plaintiffs have in fact filed a separate petition for review of

the indirect source regulations in this court (No. 74-1231), and

that petition, together with others; filed in various other circuits

attacking the indirect source regilations, has been transferred

on the EPA’s motion to the Court of Appeals for the District

of Columbia (No. 74-1595 in tihat court). Their contentions

AS5S8

The Failure to Promulgate Significant Deterioration Regulations

for Automobile-Related Pollutants

Regulations for two air pollutants, particulate matter and sul-

fur dioxide, having been promulgated after the complaint was

filed (see note 2, supra), plaintiffs now seek to require the

Administrator to promulgate regulations for carbon monoxide

and the other automobile-related pollutants for which he had

established national ambient air standards.

As the District Court pointed out, the Administrator has

already been ordered in Sierra Club v. Ruckelshaus, supra, to

promulgate significant deterioration regulations. Counsel for

the government, in their brief in this court, represented that the

Administrator had complied with this order, and “[t]herefore,

since the significant deterioration regulations have already been

published, the issue of any prior failure to promulgate them is

rendered moot.” Because, as is apparent from the regulations

and the Administrator’s introductory statement accompanying

them (39 Fed. Reg. 42,510 (Dec. 5, 1974)), and as counsel

for the government acknowledged during oral argument, the

regulations that have been promulgated relate to only two of

the six identified pollutants, the case is not moot as to this

point. Whether there is a need for a second order against the

Administrator to do that which he has already been ordered

to do in the Sierra Club case is a question we need not reach,

because we find that this claim is not maintainable by plain-

tiffs at this time.

Section 304(a) of the Amendments, 42 U.S.C. § 1857h—

2(a), provides in pertinent part as follows:

“Except as provided in subsection (b), any person may

commence a civil action on his own behalf—

“(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this Act which is not discretionary with the Admin-

istrator.”

AS9

Subsection (b), 42 U.S.C. § 1857h—2(b), imposes the follow-

ing limitation upon this right to sue:

“No action may be commenced—

“(2) under subsection (a)(2) of this section prior to 60

days after the plaintiff has given notice of such action to

the Administrator, .. .”*

Plaintiffs failed to give the Administrator sixty days notice

prior to commencing suit, which the District Court held was

fatal to its jurisdiction. The court reasoned that the purpose of

the sixty-day notice requirement was to give the Administrator

time to assess and respond to difficult, multi-count lawsuits, to

deploy attorneys from Washington, if necessary, and to arrange

for the on-going process of regulatory development and other

substantive EPA concerns despite the interruption caused by a

pending lawsuit. The siatute’s sixty-day notice requirement

would be nullified, said the court, if plaintiffs were required to

do nothing more than comply with Fed. R. Civ. P. 12(a), which )

grants the United States, or an officer or employee thereof, sixty ;

days in which to answer a complaint in any civil suit. City of

Highland Park v. Train, supra, 374 F.Supp. at 766-767. In

accord with the District Court’s holding are Pinkney v. Ohio

Environmental Protection Agency, supra, 375 F.Supp. at 308

and West Penn Power Co. v. Train, supra, 378 F.Supp. at 944.

Cf. Metropolitan Washington Coalition for Clean Air v. Dis-

trict of Columbia, 373 F.Supp. 1089, 1092 (D.D.C. 1974).4

ee ee i

3. The statute also specifies certain exceptions to this notice

requirement that are not applicable here.

4. The Metropolitan Washington Coalition case is consistent, ;

in our view, with the holding of Pinkney ; cane ahaa ee

The plaintiffs in Metropolitan Washington Coalition, although ;

tailed to” give the required sixty-day notice before filing their first

complaint, filed a subsequent complaint raising the same issues ;

more than sixty days after the service of the first. This, as the court

held, in subtance afforded the Administrator the sixty-day notice

to which he was entitled under section 304(b). ;

cinco aeeeaeieanaREe

~~ —— Sees Fem eee eee dm. 4 eee.

A60

Contra, Riverside v. Ruckelshaus, 4 E.R.C, 1728 (C.D. Cal.

1972).*

The legislative history of section 304 shows Congress’s deter-

mination that citizen participation in the enfor’ement of stand-

ards and regulations under the Clear Air Act o 1970 be estab-

lished. It also shows, however, that Congress ntended to pro-

vide for citizens’ suits in a manner that would be least likely

to clog already burdened federal courts and mos likely to trigger

governmental action which would alleviate any 1¢ed for judicial

relief. It was in response to these concerns tl@t the statutory

notice provisions were included in section 304° Congress's in-

tention would be frustrated if the statutory maidate of section

304(b) were ignored.”

The language chosen by Congress makes it Clear that the

by Rule 12(a), Fed. R. Civ. P., which allows him sixty days

to answer or move against a complaint by whih an action is

commenced. Section 304(b)’s statutory commard plainly states

that “[nJo action may be commenced . . . prot to 60 days

after the plaintiff has given notice of such actionto the Admin-

failure to comply with the notice requirenent

304(b)(2) barred jurisdiction under the Clean Air Act, the River-

side court found that personal service on the Admir!Strator coupled

6. See S. Rep. No. 1196, 91st Cong., 2d Sess., 36-39 (1970),

reproduced at 116 Cong. Rec. 32926-27 (1970); |16 Cong. Rec.

33102-03 (1970); Conf. Rep. No. 91-178, 9ist coy” 2d Sess.,

U.S. Code Cong. & Admin. News 5374, 5388 (1 Se

7. See Steinberg, Is the Citizen Suit a Substitut. for the Class

Action in Environmental Litigation? An Examination Of the Clean

Air Act of 1970 Citizen Suit Provision, 12 San Dieg L- Rev. 107,

132 (1974), which discusses the beneficial impact — statutory

A61

istrator.” (Emphasis supplied.) Plaintiffs made no attempt what-

soever to comply with the notice provision, and their suit there-

fore could not properly be commenced.

Alternatively, plaintiffs also rely on statutory mandamus,*

28 U.S.C. § 1361, which provides that “district courts shall have

original jurisdiction of any action in the nature of a mandamus

to compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff.”

Among the courts and legal scholars there have been re-

peated efforts to ascertain the precise scope and limitations of

section 1361. For purposes of the present case, however, we

8. It should be noted that, in addition to alleging jurisdiction

under the Clean Air Act of 1970, 42 U.S.C. § 1857h-2(a) (2), and

Statutory mandamus, 28 U.S.C. § 1361, plaintiffs allege that juris-

diction over the present case also exists under section 10 of the

Administrative Procedure Act, 5 U.S.C. §§ 701-706, the Declaratory

Judgment Act, 28 U.S.C. §§ 2201-2202, and the general federal

question jurisdiction statute, 28 U.S.C. § 1331. We need not consider

these latter bases for jurisdiction, however, for even assuming that

any one were to properly establish jurisdiction, none empower the

district court to grant plaintiffs the requested relief of a court order

compelling the Administrator to promulgate significant deterioration

regulations.

9. Though it is undisputed that Congress intended 28 U.S.C.

§ 1361 to extend mandamus jurisdiction, formerly exercised only

by the District Court for the District of Columbia, to district courts

elsewhere, and thereby authorize suits against officials who fail to

perform ministerial acts, there is some doubt concerning whether

the purview of the common law writ of mandamus was broadened i

by the inclusion of the words “in the nature of” before the word r

“mandamus” in section 1361, or whether Congress meant only to

make the writ available as it was at common law. Compare Burnett

v. Tolson, 474 F.2d 877, 880 (4th Cir. 1973), State Highway Com-

mission of Missouri v. Volpe, 479 F.2d 1099, 1104-1105 n. 6

(8th Cir. 1973), and Peoples v. United States Dep't of Agri-

culture, 427 F.2d 561, 565 (D.C. Cir. 1970) with K. Davis,

Administrative Law Treatise § 23.09 (Supp. 1970), and Byse &

Fiocca, Section 1361 on the Mandamus and Venue Act of 1962

and “Nonstatutory” Judicial Review of Federal Administrative

Action, 81 Harv. L. Rev. 308, 318-320 (1967). For cases adopting

the traditional and more prevalent view of section 1361 see Carter

v. Seamans, 411 F.2d 767, 773 n. 11 (Sth Cir. 1969), cert. denied,

397 U.S. 941 (1970). ;

| |

See ee ee

2 PS ne adnan Aiea” ea

— i ie” Natt

A62

need not be concerned with defining the jurisdictional reach of

that section. However broad its scope, mandamus cannot be

invoked to require the District Court to order the Administrator

to promulgate significant deterioration regulations.

The traditional principles generally recognized as controlling

the issuance of a writ of mandamus were concisely stated by

the court in Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir.

1972), cert. denied, 411 U.S. 918 (1973), as follows:

“(1) a clear right in the plaintiff to the relief sought; (2)

a plainly defined and peremptory duty on the part of the

defendant to do the act in question; and (3) no other

adequate remedy available.” ;

See also United States ex rel. Girard Trust Co. v: Helvering, 301

U.S. 540, 543-544 (1937).

There is, as we have seen, another remedy available that pro-

vided in section 304(a)(2) of the Clean Air Amendments of

1970, which affords any person a direct remedy to compel

the Administrator to perform a non-discretionary duty. We can-

not say that remedy which is available upon compliance with

the notice provision of section 304(b) (2) is inadequate. Further-

more, if mandamus were held to be available as an alternative

to a citizen’s suit under section 304(a)(2), Congress would

have accomplished nothing whatsoever by providing for the

citizen’s suit, or by imposing the sixty-day notice requirement

of section 304(b)(2). The remedy of mandamus is not designed

to circumvent a condition to suit properly imposed by Congress.

It is, accordingly, unnecessary for us to reach the question of

whether there exists that “plainly defined” duty (Lovallo v.

Froehlke, supra, 468 F.2d at 343), the performance of which is

positively commanded and so plainly prescribed as to be free

from doubt (United States vy. Walker, 409 F.2d 477, 481 (9th

Cir. 1969)), that is necessary to warrant the issuance of a writ

of mandamus. We do note that the mater was doubtful enough

to cause the Administrator, whose expertise in interpreting the

statute is entitled to weight, to conclude that the duty did not

A63

exist and to cause the Supreme Court in the Sierra Club case

to divide equally on the question of whether he was right. But

cf. Roberts v. United States, 176 U.S. 221, 231 (1899).

Disposition as to Counts I and II

Since neither judicial review of the indirect source regula-

; tions nor mandatory relief to cogpel the promulgation of sig-

nificant deterioration regulations for pollutants related to auto-

mobiles is available in the proceedings before us, there is no

predicate in the allegations of Counts I and II for plaintiffs’

demand for an injunction against further construction on the

highway expansion and the shopping center until their claims con-

cerniug these regulations are finally resolved. We cannot find at

. this stage a sufficient likelihood that regulations entitling plain-

tiffs to such injunctive relief will ultimately be promulgated

to justify an award of injunctive relief. We therefore affirm the

dismissal of Counts I and II.

Count III: Absence of an Environmental

Impact Statement )

Plaintiffs allege in Count III that portions of the expansion

of Lake-Cook Road are to be constructed with federal funds,

and that the United States Department of Transportation was

therefore required by the National Environmental Policy Act

of 1969 (“NEPA,” 42 U.S.C. §§ 4321, et seq.) to prepare an

| environmental impact statement concerning the expansion, which

: has not been prepared. They seek an order requiring the prepara- .

tion of such a statement and an injunction prohibiting the

; construction of the improvements on the road by Cook County

| Department of Highways until the statement is prepared. The .

motions to dismiss by the defendants under this count were

supported and opposed by affidavits and documents, and there-

fore were treated by the District Court, under the authority of

Rule 12(c), Fed. R. Civ. P., as motions for summary judgment.

The court granted the motions.

A64

Plaintiffs now question the propriety of deciding the issues

under Count III by a summary judgment. They appear not to

have raised this question when they submitted matter outside

the pleadings in opposition to the motions, and did not suggest

in their papers in opposition in the District Court the existence

of any other evidence bearing on the issues. They had ample

opportunity to present all material pertinent to the motion. The

court properly determined that there was no genuine issue as

to any material fact.

NEPA requires each federal agency, before taking any “major

Federal actions significantly affecting the quality of the human

environment,” to prepare a “detailed statement” analyzing,

among other things, “the environmental impact of the proposed

action.” (42 U.S.C. § 4332(2)(C).) “Actions” include projects

supported in whole or in part by federal funding. (40 C.F.R.

§ 1500.5(a)(2) (1974).) Plaintiffs contend that federal fund-

ing has been requested for a 2.47 mile segment of the Lake-

Cook Road, and that therefore the requirements of NEPA are

applicable to the entire road expansion project.

The documentary evidence submitted below indicates that

the 2.47 mile segment of the road has received “federal-aid

secondary system” designation. Designation, however, is merely

the first step in the procedure for obtaining federal funds for

highway improvement. The Federal-Aid Highway Acts indicate

that before federal funding is obtained the project must be

programmed by a state agency for federal funding and then

approved by both the state highway department and federal

authorities. (23 U.S.C. §§ 103(c), (f), 105, and 106.) It is

undisputed that this designation was made long before the

enactment of NEPA, and there is accordingly no basis for a

contention that the road improvement project was segmented

to circumvent the Act. See River v. Richmond Metropolitan

Authority, 359 F.Supp. 611, 633-636 (E.D. Va. 1973), affd

per curiam, 481 F.2d 1280 (4th Cir. 1973).

——————————O. een aaa

ee ee Ee

for. They consist of a letter from the County Department of

Transportation transmitting a county resolution to have Federal

Aid Secondary Route (“FAS”) 122 (the approximately .5 mile

segment between Pfingston and Waukegan Roads) programmed

for federal funding; the resolution itself; the Illinois Depart-

ment’s letter to the County Department approving the resolution;

a similar set of letters and a resolution concerning FAS 1013

(the approximately 2 mile segment between Sanders and

Pfingston Roads); and a document entitled “Draft/Combined

Corridor and Design Environmental Statement / Administrative

Action for Federal Aid Secondary Routes 1013 & 122,” which

is not signed and has “Preliminary 11/16/73” written across

it. These documents give no indication of federal involvement

up to that point in the approval process. Defendants submitted

affidavits showing that there has been no programming by the

State of Illinois for federal funding of the Lake-Cook Road

improvement project, and that no application for federal funds

has been made. Counsel for the Cook County Department of

Highways represented at oral argument that these facts were

unchanged.

Thus the documents relied on by plaintiffs show nothing

more than a possibility that federal funds might be applied for.

The affidavits establish that no federal funds have in fact been

applied for.

One case sustained a preliminary injunction against construc-

tion of a highway project for failure to comply with a federal

relocation statute,” holding that the project for a part of the

federal-aid primary system became a federal-aid highway project

10. Determining that this failure was a sufficient ground for

Sra a quent af Shethe bias Se nena

which was by plaintifis. La Raza Unida v. Volpe, 337

F.Supp. 221, 234 (N.D. Cal. 1971). The Court of Appeals did

not refer to NEPA.

A65

Plaintiffs submitted, in opposition to the motion, documents

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A68

tion against the village on the claim based upon the Fourteenth

Amendment under 28 U.S.C. § 1331. The absence of any

specific request for relief against the trustees may have justified

dismissal as to them, but in any event the complaint, as

amended, states no claim on which relief could be granted

against either the trustees or the village.

A zoning ordinance is clothed with every presumption of

validity. City of Ann Arbor, Mich. v. Northwest Park Constr.

Corp., 280 F.2d 212, 223 (6th Cir. 1960). Derived from

the states’ police power, the legislative authority which grants

municipalities the power to adopt and enforce zoning ordi-

nances and regulations is not to be narrowly confined. Village

of Belle Terre v. Boraas, 416 U.S. 1, 5-8 (1974); cf. Berman

Vv. Parker, 348 U.S. 26, 32-33 (1954). Unless it is based upon

a suspect classification or impinges upon a fundamental right

(see Village of Belle Terre v. Boraas, supra, 416 U.S. at 6,

7), which is not true in the case at bar, zoning legislation may

be held unconstitutional only if it is shown to bear no possible

relationship to the state’s interest in securing the health, safety,

morals, or general welfare of the public and is, therefore, mani-

festly unreasonable and arbitrary. E.g., Village of Euclid v.

Ambler Realty Co., 272 U.S. 365, 395 (1926); Gorieb v. Fox,

274 U.S. 603, 610 (1927); Aquino v. Trobiner, 298 F.2d

674, 677 (D.C, Cir. 1961). Thus the scope of judicial review

is limited.

It is well established that “[iJn the area of economics and

social welfare, a State does not violate the Equal Protection

Clause merely because the classifications made by its law are

imperfect. If the classification has some ‘reasonable basis,’ it

does not offend the Constitution simply because . . . ‘in practice

it results in some inequality.’” Dandridge v. Williams, 397

U.S. 471, 485 (1960): see Village of Belle Terre v. Boraas,

supra, 416 U.S. at 8; Sinclair Refining Co. v. City of Chicago,

178 F.2d 214, 217 (7th Cir. 1950). As the Supreme Court

observed in Village of Euclid vy. Ambler Realty Co., supra:

A69

“{[Ljaws may . . . find their justification in the fact that, in

some fields, the bad fades into the good by such insensible

degrees that the two are not capable of being readily dis-

tinguished and separated in terms of legislation.” (272 U.S. at

389.)

Inherent in all zoning legislation are statutory distinctions

which give rise to claims of disparity of treatment. Inevitably

areas zoned for nonresidential uses will touch areas zoned for

residential uses, and the burden of the zoning always falls most

heavily on the residents adjacent to the boundary. This is es-

sentially all that plaintiffs have alleged here, except that they

have framed their grievance in the rhetoric of equal protection.

Plaintiff residents of Highland Park and Glenbrook Country-

side allege no classification other than the distinction between

residents in close proximity to the proposed shopping center and

residents who live farther away. Such a classification, inherent

in all zoning, is not within the purview of the Fourteenth

Amendment. Cf. L’Hote v. City of New Orleans, 177 US.

587, 597 (1899). “Some must suffer by the establishment of

any territorial boundaries. . . . If these limits hurt the [appel-

lants], other limits would hurt others.” (/Jd.) So long as such

legislation applies equally to all persons similarly situated in

a given locale, there can be no violation of the Equal Protection

Clause. Cf. Caskey Baking Co. v. Virginia, 313 U.S. 117,

121 (1941); United States v. Holmes, 387 F.2d 781, 785 (7th

Cir. 1967), cert. denied, 391 U.S. 936 (1968).

Zoning is not rendered unconstitutional by the fact that

any direct benefit the plaintiffs may receive from it is less

than the possible burdens it may impose upon them. Plaintiffs

having failed in Count IV to state a claim upon which relief

can be granted, the District Court’s dismissal of that count is

affirmed.

The Petition for Review

On January 6, 1975, plaintiffs filed in this court a petition for

review, No. 75-1006, seeking review of the significant deteriora-

A70

tion regulations promulgated by the Administrator on December

5, 1974. That petition which states as petitioners’ sole grievance

the Administrator’s failure to promulgate significant deterioration

regulations with respect to carbon monoxide and other auto-

mobile related pollutants was consolidated with No. 74-1271

_ on the representation by petitioners that the same substantive

issues were involved in the two cases, the court viewing the

petition for review as an attempt by petitioners to “safeguard

their jurisdictional grounds.” (Order of Feburary 11, 1975,

denying motion to reconsider consolidation. )

No brief has been submitted in support of the petition for

review. We therefore do not have the benefit of petitioners’

views as to the appropriateness of a petition for review to com-

pel the Administrator to act. We think, however, that the

function of a petition for review is to invoke a review for

correctness by the Court of Appeals of regulations adopted by

the Administrator and not to compel the Administrator to

act when he has failed to act. Petitioners, in their petition for

review, do not challenge the significant deterioration regulations

on particulate matter and sulfur dioxide which the Administrator

has promulgated. Their petition rather complains that the Ad-

ministrator “continues in his failure” to promulgate regulations

relating to carbon monoxide and other motor vehicle related

pollutants. The appropriate procedure for compelling the Ad-

ministration to act is that provided in section 304(a), supra,

which expressly provides for an action in the district court

“against the Administrator when there is alleged a failure of

the Administrator to perform any act or duty under this Act

which is not discretionary with the Administrator.” Plaintiffs

recognized this when they brought their action under section

304(a), but they failed to give statutory notice that would

have made their action viable. The petition for review is dis-

missed.

AFFIRMED in No. 74-1271; Petition for Review DISMISSED

in No. 75-1006.

A7l

UNITED STATES DistTRICT COURT,

N. D. Illinois

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