Environmental Defense Fund v. Thomas/Dissent Mahoney

by John Daniel Mahoney

MAHONEY, Circuit Judge, dissenting:

I respectfully dissent, and would affirm the district court's determination that it lacked subject matter jurisdiction.

I do not agree with my colleagues that affirmance would leave a "bureaucratic limbo subject neither to review in the District of Columbia Circuit nor to challenge in the district court." Rather, I would think the procedure outlined in [p901] Oljato Chapter of Navajo Tribe v. Train, 169 U.S. App. D.C. 195, 515 F.2d 654 (D.C. Cir. 1975), was available to the plaintiffs here. Specifically:

(1) The person seeking revision of a standard of performance, or any other standard reviewable under Section 307, should petition EPA to revise the standard in question. The petition should be submitted together with supporting materials, or references to supporting materials.

(2) EPA should respond to the petition and, if it denies the petition, set forth its reasons.

(3) If the petition is denied, the Petitioner may seek review of the denial in this court pursuant to Section 307.

Id. at 666.^[1]

The quite limited role of a district court in the Oljato scheme is stated in the following terms:

The Administrator's failure to respond or inadequacy of response may be appealable to the District Court under the APA even if the substance of the denial is not so appealable. In such a case, the District Court would have the power to demand that the Administrator issue a response, or a more complete response even if it would not have the power to invalidate the standard of performance or order a revision.

Id. at 667 n.20 (emphasis added). The limited role which Oljato footnote 20 allows to a district court is inapplicable here, however, since the Oljato procedure has not been invoked.

I do not view the provision of Section 109(d)(1) that the Administrator "shall" complete a thorough review of criteria at specified five-year intervals "and promulgate such new standards as may be appropriate" as providing a stated deadline, within the meaning of Sierra Club v. Thomas, 264 U.S. App. D.C. 203, 828 F.2d 783 (D.C. Cir. 1987), as to the promulgation of standards. Sierra Club states: "In order to impose a clear-cut nondiscretionary duty [enforceable under section 304], we believe that a duty of timeliness must 'categorically mandat[e]' that all specified action be taken by a date-certain deadline." Id. at 791 (quoting National Resources Defense Council, Inc. v. Train, 166 U.S. App. D.C. 312, 510 F.2d 692, 712 (D.C. Cir. 1975)). It doesn't seem to me that Section 109(d) meets this standard, since there is pretty clearly no requirement that standards be finally promulgated at the specified five-year intervals, or by any other date-certain deadline.^[2]

I would accordingly view this case as falling within the rule stated in Telecommunications Research and Action Center v. FCC, 242 U.S. App. D.C. 222, 750 F.2d 70, 75 (D.C. Cir. 1984): "we hold that where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is subject to the exclusive review of the Circuit Court of Appeals." A footnote, appended to the quoted statement, specified [p902] that this holding had "been considered separately and approved by the whole court, and thus constitutes the law of this circuit." Id. at 75 n. 24.

I therefore respectfully dissent.

1. Footnote 1 of the majority opinion states that the "statutory overhaul that produced section 109(d)" rendered the Oljato procedure "obsolete." I see no indication in the pertinent language or legislative history that any such result was intended, either with respect to section 109(d) or more generally. The District of Columbia Court of Appeals has consistently reiterated the continuing authority of Oljato subsequent to the 1977 legislative overhaul. See, e.g., Envtl. Defense Fund, Inc. v. Gorsuch, 230 U.S. App. D.C. 8, 713 F.2d 802, 813 (D.C. Cir. 1983); United States Brewers Ass'n, Inc. v. EPA, 195 U.S. App. D.C. 160, 600 F.2d 974, 978-79 (D.C. Cir. 1979).
2. Footnote 1 of the majority opinion concludes that such a five-year deadline was imposed by section 109(d). The postulated deadline could be met, however, by a determination that no revision is appropriate at the time of the deadline, but a revision will be made if later developments warrant. This is essentially what the Administrator did here. In any event, this scenario points up the anomaly of forcing the Administrator's essentially discretionary section 109(d) determination to "promulgate such new standards as may be appropriate" into the straightjacket of section 304(a)(2) review of "any act or duty under this chapter which is not discretionary with the Administrator." In my view, the Oljato procedure provides a preferable approach to Administrator inaction in areas committed to his discretion. I note in this regard the majority statement that a decision with respect to revision was required "in view of the revised criteria and 'Critical Assessment,'" and the necessary implication that courts other than the District of Columbia Court of Appeals will review, to some undetermined extent, the substance of discretionary decisions by the Administrator.