Rehearing Denied March 17, 1980.
See 445 U.S. 939.
On petition for writ of certiorari to the United States Court of
Appeals for the Seventh Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice REHNQUIST, with whom Mr. Justice WHITE and Mr.
Justice POWELL join, dissenting.
On L. 95-95, 91 Stat. 685. These
Page 444 U.S.
1035 , 1036
amendments required compliance by 1982 with various ambient air
quality standards promulgated earlier by the United States
Environmental Protection Agency (EPA). Under the amendments, the
States were to submit to EPA a list of "nonattainment areas," i.
e., those regions measured as not complying with EPA's standards.
The deadline for this submission was December 5, 1977. EPA was then
to promulgate a composite list of nonattainment areas by February
3, 1978. Finally, the States were to rely upon EPA's list in
formulating "State Implementation Plans" by January 1, 1979.
According to the amendments, these plans were to impose certain
stringent restrictions upon industries located in regions
designated as nonattainment areas.
Both petitioners have facilities located in Lake County, Ind.,
which was included in the list of nonattainment areas submitted by
the State of Indiana to EPA on December 5, 1977. EPA promulgated
its list, which included Lake County, on March 3, 1978. At the same
time, EPA announced that the designations were immediately
applicable and effective. In explaining its failure to promulgate
the list as a proposed rule and to comply with the
notice-and-comment provisions of the Administrative Procedure Act,
5 U.S.C. 553, EPA asserted that it had "good cause" to dispense
with the requirements as provided in 5 U.S.C. 553(b)(B) and
553(d)(3). In particular it cited the need to give the States
immediate guidance on the location of nonattainment areas so that
those States could meet the deadline of January 1, 1979, for their
implementation plans. EPA did solicit after-the-fact comments, due
by May 2, 1978, and subsequently amended its list in certain
respects not relevant here.
Petitioners brought the present action for review in the United
States Court of Appeals for the Seventh Circuit, claiming, inter
alia, that EPA's designation of Lake County as a nonattainment area
was "not in accordance with law" under the APA because of EPA's
failure to follow the notice-and-
Page 444 U.S.
1035 , 1037
comment procedure. The Court of Appeals rejected this claim on
two grounds. First, it held that the tight statutory schedule under
which EPA was operating provided that agency with "good cause" to
dispense with the usual procedures. Second, it held that, under 42
U.S.C. 7607(d)(9), even if EPA had failed to abide by the
procedural requirements of the APA its action would not be reversed
unless petitioners demonstrated that they had objected to the
procedure during the grace period provided by EPA for
after-the-fact comments and that the error was "so serious and
related to matters of such central relevance to the rule that there
is a substantial likelihood that the rule would have been
significantly changed if such errors had not been made." Pet., at
A13, quoting 42 U.S.C. 7607(d)(8) as incorporated by 7607(d)(9)(D).
According to the Court of Appeals, petitioners had failed to carry
their burden as to either of these factors.
The first holding of the court below is in square conflict with
the decisions of two other courts of appeals. In Sharon Steel Corp.
v. EPA,
597 F.2d
377 (CA3 1979), and United States Steel Corp. v. EPA,
595 F.2d
207 (CA5 1979), the Courts of Appeals for the Third and Fifth
Circuits held that EPA did not have good cause to dispense with
notice-and-comment rulemaking in promulgating the very list at
issue here.
While conceding that a conflict exists, EPA argues that "the
unique statutory circumstances that created the practical need to
promulgate the original designations without prior notice and
comment no longer exist, and the issue presented will not recur."
Response, at 7. In the area of environmental regulation, however,
tight statutory schedules are both quite common and frequently
unmet. If EPA's actions in the present case pass without review by
this Court, persons subject to EPA's jurisdiction in different
parts of the country will be entitled to different procedural
protections when either they or EPA find themselves up against a
dead-
Page 444 U.S.
1035 , 1038
line. Moreover, these recurring deadlines will almost invariably
have passed by the time this Court receives a petition, allowing
EPA to argue in each case that, because the deadline has passed,
the issue is no longer ripe for review. While no party claims this
case is moot, the fact that the issue is "capable of repetition,
yet evad[es] review[,]" Southern Pacific Terminal Co. v. ICC,
219 U.S.
498, 515 ( 1911), makes this a classic case for a grant of
certiorari.
As for the alternative holding of the court below, it appears
that the unusually strong showing demanded by 7607(d)(9)(D), but
not by the APA, is required only in certain types of actions listed
in 7607(d)(1). See 42 U.S.C. 7607(d)(9). Although the Court of
Appeals suggested that promulgation of the list "arguably" could be
characterized as one of those enumerated actions, it went well
beyond the statutory language to hold that "Congress meant this
limitation on review of procedural errors to extend to all
rulemaking by the EPA whether or not it is in the explicit
categories covered by the provisions of section 7607(d)." Pet., at
A14. As petitioners point out, this ruling has the effect of
establishing two Administrative Procedure Acts, one for the EPA and
one for all other agencies.
Apparently uncomfortable with this holding, EPA attempts to
dismiss it as dicta. Response, at 9. It clearly is not. It was an
independent, alternative basis for the decision of the court below,
no more dicta than its companion holding that EPA demonstrated good
cause. In fact, the Court of Appeals relied on its interpretation
of 7607(d)(9) as a reason for rejecting the conclusions of the
Third Circuit and the Fifth Circuit as to the legality of EPA's
action. See Pet., at A15, n. 14.
Either of these issues might merit certiorari in its own right;
in tandem they present a formidable candidate for review. The fact
that the requirements of the Clear Air Act Amendments virtually
swim before one's eyes is not a rational basis, under these
circumstances, for refusing to exercise our discre-
Page 444 U.S.
1035 , 1039
tionary jurisdiction. Admittedly, it would be easier to decide a
case turning on common-law principles of property or contract, and
more interesting to decide a case involving competing fundamental
principles of constitutional law. But here, in grappling with the
problem of air pollution on a nationwide basis, Congress has quite
understandably enacted a very complex statute that seeks to
accomplish regulatory goals while at the same time providing
procedural protection for the regulated. It might have avoided some
of the complexity by making the EPA administrator a virtual czar to
the extent allowed by the Constitution, but it chose a more
balanced approach. Congress has made this choice and has designated
the Courts of Appeals to construe the innumerable provisions of the
Act. We can avoid invocation of our jurisdiction to resolve
conflicts among the decisions of the Courts of Appeals construing
important sections of the statute only by breaking faith with the
spirit, if not the letter, of those Acts of Congress making our
jurisdiction in virtually all cases discretionary rather than
obligatory. I therefore would grant the writ of certiorari.
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