HARRISON, REGIONAL ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, ET AL. v. PPG INDUSTRIES, INC., ET AL.
No. 78-1918
Supreme Court of the United States
Argued January 16, 1980—Decided May 27, 1980
446 U.S. 578
Maryann Walsh argued the cause for petitioners. With her on the briefs were Solicitor General McCree, Assistant Attorney General Moorman, William Alsup, Jacques B. Gelin, and Michele B. Corash.
Charles F. Lettow argued the cause for respondents. With him on the brief were V. Peter Wynne, Jr., Oliver P. Stockwell, and Gene W. Lafitte.
MR. JUSTICE STEWART delivered the opinion of the Court.
Section 307 (b)(1) of the Clean Air Act (Act) provides for direct review in a federal court of appeals of certain locally and regionally applicable actions taken by the Administrator of the Environmental Protection Agency (EPA) under specifically enumerated provisions of the Act, and of ”any other final action of the Administrator under [the] Act . . . which is locally or regionally applicable.” (Emphasis
I
The dispute underlying this jurisdictional question involves a decision of the Administrator under § 111 of the Act,
In 1971, the Administrator included “fossil fuel-fired steam generators” in his list of stationary sources. 36 Fed. Reg. 5931. Later that year, pursuant to his mandate to promulgate “new source” performance standards, the Administrator established certain emission limits for any “fossil fuel-fired steam generating unit” of more than 250 million Btu‘s per hour heat input, the construction or modification of which was commenced after August 17, 1971, the date on which the standards were proposed. 40 CFR §§ 60.1-60.15, 60.40-60.46 (1979). These “new source” regulations define the term, “fossil fuel-fired steam generating unit,” § 60.41 (a), and also create a procedure under which the Administrator, upon
Sometime in 1970, the respondent PPG, a chemical manufacturing corporation, began the planning and preliminary construction of a new power generating facility at its plant in Lake Charles, La. That facility, designed to take advantage of fuel-efficient “cogeneration” technology, was to consist of two gas turbine generators, two “waste-heat” boilers, and a turbogenerator. The dispute between EPA and PPG concerns the applicability of the “new source” performance standards to the waste-heat boilers of this facility. This controversy first arose in 1975, when the respondent Conoco, PPG‘s fuel supplier, informed EPA that Conoco was switching the supply of fuel to the Lake Charles facility from natural gas to fuel oil. An exchange of correspondence ensued, initiated by EPA‘s request that PPG submit additional information bearing on whether the waste-heat boilers were covered by the “new source” standards. PPG‘s submissions revealed that although assembly of the waste-heat boilers had not begun until 1976, the new power facility itself, of which the boilers were an integral component, had been originally designed and partially ordered in 1970, a year before the proposed date of the “new source” performance standards.
On the basis of PPG‘s submissions, the Regional Director for Enforcement of the EPA notified PPG of his conclusion that the boilers were subject to the “new source” standards, since construction of the boilers themselves had not begun until long after January 14, 1971, the date on which the standards had been proposed. In response, PPG took the position that the boilers were part of an integrated unit, the construction of which had begun in 1970, before the proposed date of the standards. The Regional Director, nevertheless, reaffirmed his initial decision.
Responding to PPG‘s request, the Regional Administrator notified PPG by letter that he had concluded that the waste-heat boilers were, indeed, subject to the “new source” standards for “fossil fuel-fired steam generators,” and rejected PPG‘s argument that construction of the boilers had begun with the construction of other facets of the Lake Charles facility. Thus, the Regional Administrator affirmed the previous EPA determination that the waste-heat boilers were subject to the “new source” performance standards. With regard to the manner in which those standards were to apply to the waste-heat boilers, the Regional Administrator indicated that since PPG‘s gas turbine generators were not subject to the “new source” standards, PPG would be held accountable only for those emissions from the waste-heat boilers attributable to the combustion of fossil fuel, not those emissions attributable to waste heat from the gas turbine generators.2
PPG then filed a petition in the Court of Appeals for the Fifth Circuit, seeking review of EPA‘s decision concerning the applicability of the “new source” standards to its waste-heat boilers. Because of its uncertainty regarding the proper forum for judicial review, PPG also filed a complaint for injunctive relief against the Administrator in the United States District Court for the Western District of Louisiana. That suit has been stayed pending the disposition of the present case.
PPG‘s uncertainty, and the issue in this case, stem from conflicting views as to the proper interpretation of
It was under § 307 (b)(1), as amended, that PPG filed a petition for review in the Court of Appeals for the Fifth Circuit. Despite having filed its petition there, PPG, and Conoco as intervenor, argued that that court was without jurisdiction, since the Administrator‘s decision was not an action taken under one of the provisions specifically enumerated in § 307 (b)(1), and could not be properly characterized as “any other final action of the Administrator.” The latter phrase, they argued, referred only to other locally or regionally applicable final actions under the provisions of the Act specifically enumerated in § 307 (b)(1). In response, EPA argued that the phrase, “any other final action,” should be read literally to mean any final action of the Administrator.
The Court of Appeals concluded that the Administrator‘s decision did not fall within the meaning of “any other final action” under § 307 (b)(1). 587 F. 2d 237. It was the court‘s view that “[i]f Congress intended . . . to cast the entire responsibility for reviewing all EPA action under the Act into the courts of appeals, the numeration of specific sections would appear to be redundant.” Id., at 243. The “most revealing” aspect of the legislative history of § 307 (b)(1), the court thought, was the complete absence of any discussion of such a “massive shift” in jurisdiction. Moreover, the court found it unlikely that Congress could have intended a shift of jurisdiction that would require the courts of appeals to review decisions of the Administrator that simply applied or interpreted his regulations, as in this case. Such a decision, the court noted, is often based on a “skeletal record” that may leave the reviewing court unable to
II
It is undisputed that the Administrator‘s decision concerning the applicability of the “new source” performance standards to PPG‘s waste-heat boilers was locally applicable action under a provision of the Act not specifically enumerated in § 307 (b)(1). The question at issue is whether the Administrator‘s decision falls within the scope of the phrase, “any other final action of the Administrator,” so as to make that decision reviewable in a federal court of appeals under § 307 (b)(1).
At the outset, we note that the parties are in agreement that the Administrator‘s decision was “final action” as that term is understood in the context of the Administrative Procedure Act and other provisions of federal law. It is undisputed that the Administrator‘s ruling represented EPA‘s final determination concerning the applicability of the “new source” standards to PPG‘s power facility. Short of an enforcement action, EPA has rendered its last word on the matter. The controversy thus is not about whether the Administrator‘s decision was “final,” but rather about whether it was “any other final action” within the meaning of § 307 (b)(1), as amended in 1977.
The petitioners argue that the phrase, “any other final action,” should be used in accordance with its literal meaning so as to reach any action of the Administrator under the Act that is “final” and not taken under a specifically enumerated provision in § 307 (b)(1). The respondents argue that the statutory language should be construed more narrowly. Relying on the familiar doctrine of ejusdem generis, they assert that the phrase, “any other final action,” should be read not to reach all final actions of the Administrator, but rather only those similar to the actions under the specifically enumerated provisions that precede that catchall phrase in the statute.3 The similarity that the respondents discern among the actions under the specifically enumerated provisions in § 307 (b)(1) is that those actions must be based on what the respondents refer to as “a contemporaneously compiled administrative record,” by which they mean a record “based on administrative proceedings reflecting at least notice and opportunity for hearing.” Since the Administrator‘s informal decision in this case was not based on such a record, the respondents argue that his decision was not “other final action” within the meaning of § 307 (b)(1) and thus not within the jurisdiction of the Court of Appeals.4
The second problem with the respondents’ reliance on the rule of ejusdem generis is more fundamental. As we have often noted: “The rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty.” United States v. Powell, 423 U. S. 87, 91, quoting Gooch v. United States, 297 U. S. 124, 128. With regard to § 307 (b)(1), we discern no uncertainty in the meaning of the phrase, “any other final action.” When Congress amended the pro-
B
We have found nothing in the legislative history to support a conclusion that the phrase, “any other final action,” in § 307 (b)(1) means anything other than what it says.
The only extended discussion of this proposed amendment to § 307 (b)(1) was contained in the Committee Report accompanying H. R. 6161. H. R. Rep. No. 95-294, pp. 323-324 (1977). That discussion, however, focused not on the jurisdictional question at issue here, but rather on the proper venue as between the District of Columbia Circuit and the other Federal Circuits. The Committee Report described the proposed amendments as “intended to clarify some questions relating to venue for review of rules or orders under the [A]ct.” Id., at 323. In this regard, the Committee Report explained:
“[The proposed addition to the first sentence of § 307 (b) (1)] makes it clear that any nationally applicable regulations promulgated by the Administrator under the Clean Air Act could be reviewed only in the U. S. Court of Appeals for the District of Columbia. . . .
“[The proposed addition to the second sentence] provides for essentially locally, statewide, or regionally applicable rules or orders to be reviewed in the U. S. court
of appeals for the circuit in which such locality, State, or region is located. . . .” Ibid.
The Committee Report further stated that the proposed changes reflected the Committee‘s agreement with certain venue proposals of the Administrative Conference of the United States, but added the caveat that the adoption of these proposals was not to be taken as an endorsement of the remainder of the Administrative Conference‘s recommendations. Id., at 324.
The respondents infer from this scant legislative history that Congress never intended the addition of the phrase, “any other final action,” to § 307 (b)(1) to enlarge the jurisdiction of the courts of appeals to include the review of cases based on an administrative record reflecting less than notice and an opportunity for a hearing. But, insofar as the respondents rely on what the Committee said in its Report, we fail to see how the Committee‘s observations on venue have any bearing at all on the jurisdictional issue now before the Court.7 Moreover, since the Administrative Conference had not proposed that the jurisdiction of the courts of appeals be expanded to include “any other final action,” the fact that the Committee expressly disclaimed an endorsement of the recommendations of the Administrative Conference on matters other than venue would appear wholly irrelevant.
The respondents also rely on what the Committee and the
C
The respondents finally argue that, as a matter of policy, the basic purpose of § 307 (b)(1)—to provide prompt pre-enforcement review of EPA action—would be better served by providing for judicial review of cases such as this in a district court rather than a court of appeals.9 It is the respond-
ents’ view that since agency action predicated on neither formal adjudication nor informal rulemaking is apt to be based on a record too scant to permit informed judicial review, the district court is the preferable forum, since the tools of discovery are there available to augment the record, whereas in a court of appeals a time-consuming remand to EPA might be required.
This is an argument to be addressed to Congress, not to this Court. It is not our task to determine which would be the ideal forum for judicial review of the Administrator‘s decision in this case. See, e. g., Currie & Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum. L. Rev. 1 (1975). Rather, we must determine what Congress intended when it vested the courts of appeals with jurisdiction under § 307 (b)(1) to review “any other final action.” The language of the statute clearly provides that a decision of the sort at issue here is reviewable in a court of appeals, and nothing in the legislative history points to any different conclusion.10
We add only that, as a matter of policy, this conferral of jurisdiction upon the courts of appeals is not wholly irrational. The most obvious advantage of direct review by a court of appeals is the time saved compared to review by a district court, followed by a second review on appeal. It may be seriously questioned whether the overall time lost by court of appeals remands to EPA of those cases in which the
For the reasons stated, we hold that the Court of Appeals erred in dismissing the petition for want of jurisdiction. Accordingly, the judgment is reversed, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE POWELL, concurring.
I continue to have reservations about the constitutionality of the notice and review preclusion provisions of § 307 (b). Adamo Wrecking Co. v. United States, 434 U. S. 275, 289 (1978) (POWELL, J., concurring); see ante, at 592-593, n. 9. Congress has extended to 60 days the period within which a petition for review may be filed under § 307 (b)(1). But publication in the Federal Register still is unlikely to provide constitutionally adequate notice that a failure to seek immediate review will bar affected parties from challenging the noticed action in a subsequent criminal prosecution. An informal exchange of letters, like those involved in this case, often will provide no greater protection. Although these constitutional difficulties well may counsel a narrow construction of § 307 (b)(1), cf. Chrysler Corp. v. EPA, 195 U. S. App. D. C. 90, 98-100, 600 F. 2d 904, 912-914 (1979) (parallel provisions of Noise Control Act), no such construction is
MR. JUSTICE BLACKMUN, concurring in the result.
For the reasons stated in my Brother STEVENS’ dissent, I accept the Court‘s conclusion that the Agency‘s determination in this case constituted “final” action. The opaque language of § 307 (b)(1) and the scant attention it received by Congress, however, leave me in doubt concerning Congress’ true intention with respect to the scope of direct appellate review. Like my dissenting Brethren, I find it difficult to believe that Congress would undertake such a massive expansion in the number of Agency actions directly reviewable by the courts of appeals without some palpable indication that it had given thought to the consequences. Nonetheless, I agree with the Court that the dearth of evidence to the contrary makes its broad interpretation of the statute inescapable. On this legislative record, we must leave to Congress, should it be so inclined, the task of introducing some clear limitation on appellate jurisdiction over review of informal Agency determinations like the one now before us.
MR. JUSTICE REHNQUIST, dissenting.
The effort to determine congressional intent here might better be entrusted to a detective than to a judge. The Court rejects the application of the traditional canon of ejusdem generis to the phrase “any other final action” on the grounds that (1) there is no uncertainty as to the meaning of that phrase, ante, at 588, and (2) at least one of the provisions now included in
Before 1977, § 307 (b)(1) granted exclusive jurisdiction to courts of appeals to review only a limited class of actions taken by the Administrator.1 District of Columbia v. Train, 175 U. S. App. D. C. 115, 119, 533 F. 2d 1250, 1254 (1976); Utah Power & Light Co. v. EPA, 180 U. S. App. D. C. 70, 72, 553 F. 2d 215, 217 (1977). The EPA was required to provide for notice and an opportunity for hearing or comment with respect to all such actions. These procedural requirements generally result in the creation of an administrative record
The revision of § 307 (b)(1) during the Clean Air Act Amendments of 1977, when Congress added the phrase “any other final action,” does not in my view support the Court‘s
If Congress had done nothing more than enact this amend-
In my view, absent any clear indication to the contrary, the statute should not be construed as creating a broad expansion of the jurisdiction of the federal courts of appeals. Such an approach is quite appropriate in this case because the jurisdictional expansion wrought by the Court is thoroughly inconsistent with the traditional role of appellate courts. Indeed, I think it is difficult to believe that Congress would adopt a massive shift in jurisdiction from the district courts to the courts of appeals without any comment whatsoever. The sketchy legislative history here indicates that Congress considered the Administrative Conference‘s recommendations and that the principal purpose of the 1977 amendment was to effect the change in venue that was recommended by the Administrative Conference. The change would be far less sub-
If the phrase “any other final action” is interpreted by reference to § 307 (b)(1) at the time the phrase was added, this case is clearly a proper one in which to apply the rule of ejusdem generis. The rule of ejusdem generis ordinarily “limits general terms which follow specific ones to matters similar to those specified.” Gooch v. United States, 297 U. S. 124, 128 (1936). It rests on the notion that statutes should be construed so that the “sense of the words . . . best harmonizes with the context and the end in view.” Ibid. At the time the general language “any other final action” was adopted, notice and opportunity for comments or hearing were required for the actions listed in the sections that preceded it—a requirement that distinguished those sections from the Administrator‘s action at issue here. Thus under the principle of ejusdem generis, the general phrase refers to similar types
MR. JUSTICE STEVENS, dissenting.
From May 1976 through June 1977, respondent PPG Industries, Inc. (PPG), exchanged a series of letters with various officials of the Environmental Protection Agency concerning the applicability of certain federal performance standards to PPG‘s waste-heat boilers at its Lake Charles, La., plant. PPG took the position that its boilers were not required to meet these standards, first, because construction had begun on them prior to the effective date of the standards and, second, because waste-heat boilers are not within the category of sources to which the standards in question apply.1
In April 1977 PPG submitted a formal request, pursuant to 40 CFR § 60.5 (a), for a definitive determination on these issues. Although § 60.5 (a) provides for such determinations only with respect to the first issue raised by PPG,2 EPA‘s Regional Administrator apparently rejected both arguments
After a few more “clarifying” letters were exchanged, PPG brought two separate petitions for review of EPA‘s determination, filing in both the District Court for the Western District of Louisiana and the Court of Appeals for the Fifth Circuit. The Fifth Circuit dismissed the petition on the ground that review was properly had, if at all, in the District Court.
There are two issues before us today: first, whether EPA‘s determination constitutes “final” agency action such that any review is appropriate and, second, if so, whether that review must be had in the Court of Appeals because the determination constituted “any other final action” within the meaning of § 307 (b)(1) of the Clean Air Act,
In Abbott Laboratories v. Gardner, 387 U. S. 136, 149-156, this Court set out three tests that informal agency action must meet in order to be considered final agency action that is ripe for judicial review. First, the action must involve an issue that is appropriate for judicial review, such as a purely legal question. Second, it must be a definitive statement of the agency‘s position and not merely a tentative view or the opinion of a subordinate official. Finally, the party seeking review of the action must be faced with serious hardship if he is not allowed to obtain pre-enforcement review. In Abbott Laboratories itself the third requirement was satisfied by the fact that the affected companies either had to expend substantial amounts of money to comply with the regulation or not comply and risk serious criminal and civil penalties.
Although informal advice by agency personnel as to how the agency is likely to react to a particular set of circumstances
Assuming that EPA‘s letter in this case would constitute “final agency action” under the APA, the second question is whether we are compelled by the language of § 307 (b)(1) to hold that the Court of Appeals had exclusive jurisdiction to
Under
publication may give the Agency the benefit of the preclusive effect of
Once notice of an action has been published in the Federal Register, it would be difficult to argue that it was not “final” agency action. Most of the determinations would, like this one, concern applications of particular regulations to undisputed fact situations. Second, the very fact that the Agency had published its position would indicate that it was a definitive statement of agency policy. And finally, the requirement that an aggrieved person show some hardship entitling him to pre-enforcement review would also seem to be satisfied by mere publication, since the failure to raise the issue might well foreclose future review entirely.8
I find it difficult to believe that Congress intended this highly undesirable result. Although I do not share MR. JUSTICE REHNQUIST‘s interpretation of the statute, I would construe it as drawing a line short of allowing EPA complete discretion to turn anything it chooses into final action reviewable only in the courts of appeals.
Section 307 (b)(1) mandates exclusive review in the courts of appeals of the Administrator‘s actions under certain specific subsections of the Act. Those subsections contain specific grants of authority to the Administrator to make certain determinations. Thus, §§ 110 and 111 (d),
By contrast, agency advice as to whether or not particular sources are subject to previously promulgated regulations does not, in itself, change any party‘s legal status; nor is there anything in the statute that specifically requires or permits the Administrator to give such advice. This does not mean that it is beyond the Administrator‘s power to do so or to set up his own procedures, as he has done in 40 CFR § 60.5 (a) (1979), for giving advice in a formalized manner. But I do not believe Congress intended the review provisions of the statute to cover this type of “agency action” as well as those types specifically contemplated by the statute. In making reviewable “any other final action of the Administrator under this chapter,” Congress must have been thinking of actions it had specifically directed or authorized the Administrator to take under sections of the Act not specifically enumerated in § 307 (b)(1). This interpretation is consistent with both an ejusdem generis construction of the statute and its plain language. It is also supported by Congress’ apparent belief that it was extending court of appeals review only to the types of actions that EPA had been accustomed to publishing in the Federal Register. See n. 7, supra.
Accordingly, I respectfully dissent.
Notes
“A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 112, any standard of performance or requirement under section 111, any standard under section 202 (other than a standard required to be prescribed under section 202 (b) (1)), any determination under section 202 (b) (5), any control or prohibition under section 211, any standard under section 231, any rule issued under section 113, 119, or under section 120, or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this Act may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator‘s action in approving or promulgating any implementation plan under section 110 or section 111 (d), any order under section 111 (j), under section 112 (c), under section 113 (d), under section 119, or under section 120, or his action under section 119 (c) (2) (A), (B), or (C) (as in effect before the date of enactment of the Clean Air Act Amendments of 1977) or under regulations thereunder, or any other final action of the Administrator under this Act (including any denial or disapproval by the Administrator under title I) which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination. Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise.” (Emphasis added.)
“A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 112, any standard of performance under section 111, any standard under section 202 (other than a standard required to be prescribed under section 202 (b) (1)), any determination under section 202 (b) (5), any control or prohibition under section 211, or any standard under section 231 may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator‘s action in approving or promulgating any implementation plan under section 110 or section 111 (d) may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval. . . .” Pub. L. 91-604, 84 Stat. 1708.
It was inserted by the Senate, S. 4358, 91st Cong., 2d Sess., § 308 (1970), to “specify forums for judicial review of certain actions of the [EPA] Secretary. . . .” H. R. Conf. Rep. No. 91-1783, p. 57 (1970). The House bill did not contain a comparable provision. Ibid. In 1974, §§ 119 (c) (2) (A), (B), and (C) and the phrase “regulations thereunder” were added to the list of actions reviewable under § 307 (b)(1). Pub. L. 93-319, 88 Stat. 259.
PPG also had questions about compliance in the event that the standards were found to apply.“When requested to do so by an owner or operator, the Administrator will make a determination of whether action taken or intended to be taken by such owner or operator constitutes construction (including reconstruction) or modification or the commencement thereof within the meaning of this part.”
The respondents also argue that if Congress had intended the phrase, “any other final action,” to refer to all final actions of the Administrator, it would have been unnecessary, in 1977, to add to the list in § 307 (b)(1) of specifically enumerated provisions under which actions of the Administrator are reviewable in the courts of appeals. This may be true, but the fact remains that even if Congress had intended the phrase, “any other final action,” to be read, as the respondents urge, in accordance with the rule of ejusdem generis, there still would have been no necessity to add to the list of specifically enumerated provisions.
Section 112 (c) does not make any provision for notice and comment or hearing. And, while §§ 111 (j) and 119 (a) generally provide for notice and hearing, they do not do so in every case. Under § 111 (j), an order denying a waiver apparently may be made by the Administrator without formal proceedings, and under § 119 (a), the Administrator apparently may deny an application for a primary nonferrous smelter order without providing for notice and hearing. Section 307 (b)(2) of the Clean Air Act provides:“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.”