UTAH POWER & LIGHT COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
No. 76-1873.
United States Court of Appeals, District of Columbia Circuit.
Decided Feb. 22, 1977.
Order Granting Motion Dec. 23, 1976.
215
Although separation of powers issues may be more closely tied to the political question doctrine than to standing,126 we believe it is appropriate to take note of these concerns in this context.127 As the Supreme Court stated in Warth v. Seldin, the standing doctrine “is founded in concern about the proper—and properly limited—role of the courts in a democratic society.”128 Since the appellant in this case has suffered no injury in a constitutional sense, he is in effect seeking to use the court to vindicate his own political values and preferences. By so doing, appellant is asking us in large part to usurp the legislative function and to grant him the relief which his colleagues have refused him. We note that we have given all of appellant‘s asserted injuries careful attention and that none of these meet the requirements established by the Supreme Court. Were we to accept these injuries as sufficient to invoke the exercise of our jurisdiction, in the language of the Chief Justice we “would create the potential for abuse of the judicial process [and] distort the role of the Judiciary in its relationship to the Executive and Legislature and open the Judiciary to an arguable charge of providing ‘government by injunction.‘”129 Although we do not rest our denial of standing on these separation of powers grounds, their existence does point to the need for a very clear showing of concrete, personal injury in this type of case so that federal courts will not be thrust into the role of “continuing monitors of the wisdom and soundness of Executive action. . . .”130
Affirmed.
Gerry Levenberg, Washington, D.C., and Verl R. Topham, Salt Lake City, Utah, were on the response in opposition filed by petitioner.
Before FAHY, Senior Circuit Judge, and LEVENTHAL, Circuit Judge.
Opinion filed by LEVENTHAL, Circuit Judge.
Opinion filed by FAHY, Senior Circuit Judge, joining with LEVENTHAL, Circuit Judge.
LEVENTHAL, Circuit Judge:
Utah Power & Light Company (UP&L) petitioned this Court for direct review of a decision by the Environmental Protection Agency (EPA), subjecting three of UP&L‘s steam electric generating plants under construction to new source review under agency regulations regarding “significant deterioration of air quality.”1 In its petition for review filed September 20, 1976, UP&L predicated this Court‘s jurisdiction upon Section 307(b)(1) of the 1970 amendments to the Clean Air Act.2
On November 2, 1976, EPA filed a motion to dismiss for lack of jurisdiction in this Court. Specifically, EPA contended that UP&L was not challenging “the Administrator‘s action in approving or promulgating” a state implementation plan,3 within the meaning of Section 307(b)(1). On December 23, 1976, after considering the motion and the response thereto, this Court entered an order granting EPA‘s motion to dismiss.
I
On December 5, 1974, respondent EPA promulgated regulations designed to prevent “significant deterioration” of air quality.4 The regulations, effective January 6, 1975, were made applicable to any new stationary source “which has not commenced construction or modification prior to June 1, 1975 . . . .”5 The regulations were incorporated into all state implementation plans.6
The Utah Air Conservation regulations were amended on July 9, 1975. On September 15, 1975, three days after its letter to EPA, UP&L applied to the Utah Committee for a determination that under the amended state regulations, the scrubbers were no longer required. In early 1976, the Utah Committee approved the elimination of the scrubbers from the plans for UP&L‘s three Utah plants.
On February 4, 1976, UP&L filed a request for an EPA ruling that the significant deterioration regulations do not apply to the three Utah plants. On March 25, 1976, EPA‘s Region 8 notified UP&L that the elimination of the scrubbers constituted a “modification” of the plants, occurring after June 1, 1975, and that such modification would bring the three plants within the ambit of the regulations.7 Region 8 instructed UP&L to submit an application for permission to modify, pursuant to
II
This Court has previously noted that the jurisdictional provisions of the Clean Air Act “have been sources of periodic confusion”8 and that therefore “proper disposition of a motion to dismiss, for lack of jurisdiction requires precise characterization of the action sought to be reviewed.” District of Columbia v. Train, supra note 8, 533 F.2d at 1252. Section 307(b)(1) grants exclusive jurisdiction to courts of appeals “to hear challenges to a limited class of actions taken by the Administrator.”9 In the present case, the Court must decide whether the challenged action—i.e., the EPA‘s decision as to the applicability of the significant deterioration regulations—can
Characterization of the challenged action depends in turn on the nature of petitioner‘s challenge. Specifically, the court must determine whether the petitioner is attacking the validity of an agency regulation or, instead, is attacking a particular interpretation or application of that regulation.13 Both the language of Section 307(b)(1) and the policy considerations underlying that provision compel the conclusion that challenges to the validity of certain agency regulations are directly reviewable by courts of appeals, whereas challenges to interpretations of those regulations are not.14 As with most general rules, an exceptional case may defy easy classification. In our opinion, this is not such a case.
UP&L‘s challenge cannot fairly be characterized as impugning the validity of
Consequently, unless UP&L seeks to challenge the EPA‘s interpretation of the new regulations, the statute provides that petitioner will not be entitled to judicial review in any federal court.18 And, as previously indicated, that kind of challenge is not cognizable under Section 307(b)(1).19 Although we need not reach the question in this case, we note that if federal review of the action challenged here is available at all, it should be sought in the district court.20
Finally, we note that in its papers filed with this Court, UP&L stated that the ambiguities of the Clean Air Act created a dilemma: if petitioner had first filed a complaint with the district court, and if that court had then dismissed for lack of jurisdiction, the 30-day statute of limitation in Section 307(b)(1) would have barred UP&L from seeking review in this Court. Recognizing that the statutory scheme encourages litigants to file petitioners for review in the courts of appeals whenever jurisdiction is in doubt, we urge Congress to adopt the recommendation of the Administrative Conference of the United States and amend Section 307 to provide for transfer between courts of appeals and district courts when a proceeding to review EPA action under the Clean Air Act is filed in the wrong forum. Administrative Conference of the United States, Resolution of December 10, 1976, Judicial Review Under the Clean Air Act and Federal Water Pollution Control Act, reprinted at 41 Fed.Reg. 56767 (Dec. 30, 1976). See Investment Company Institute v. Board of Governors of the Federal Reserve System, 179 U.S.App. D.C. 311 at —, 551 F.2d 1270, at 1272-73 (1977) (Leventhal, J., concurring).
I join in the reasons set forth in the above opinion for the entry, on December 23, 1976, of our order granting EPA‘s motion to dismiss. I find it unnecessary to our disposition of the motion to discuss the question of jurisdiction of the District Court.