The District of Columbia (District) has sought direct review in this Court of the action of the Administrator of the Environmental Protection Agency (Administrator) in entering into and approving a Consent Agreement with the General Services Administration
On October 7, 1975, EPA filed a motion to dismiss the petition for want of jurisdiction in this Court. After considering the motion, the response thereto and additional papers filed by the parties, a motions panel of this Court, finding that the Court in fact did lack jurisdiction, entered an order on January 26, 1976, granting the motion to dismiss. The District thereafter filed a timely motion for reconsideration of the order, or alternatively for amplification of the Court's reasoning. For the reasons stated herein, we affirm the order of dismissal. We find that the Consent Agreement challenged here is not an action capable of direct review in this Court pursuant to Section 307(b)(1) of the Clean Air Act which is "exclusive in its terms," Oljato Chapter of Navajo Tribe v. Train, 169 U.S.App.D.C. 195, 198, 515 F.2d 654, 657 (1975).
The jurisdictional provisions of the Clean Air Act
The Consent Agreement procedure is essentially an outgrowth of the on-going dispute between the states and the federal government over whether federal agencies are required to abide by both state substantive and procedural requirements for pollution abatement.
E.O. 11752 § 3(d)(5), 38 Fed.Reg. at 34795. Pursuant to this mandate, the Administrator published guidelines on May 12, 1975, 40 Fed.Reg. 20664, which, inter alia, introduced the Consent Agreement mechanism as the principal method for ensuring federal agency compliance with appropriate pollution control standards throughout the country. The process was described as a "documentation of a Federal facility's non-compliance with an applicable Federal, State, or local air pollutant emission limitation and the schedules and conditions under which the facility [would] be brought into compliance." 40 Fed.Reg. at 20665. The guidelines required all Consent Agreements to include a "timetable of increments of progress to abate emissions from each point in violation representing the Federal facility's commitment to achieve final compliance." Id. It is this aspect of the Consent Agreement challenged here which the District seeks to use as the factual predicate for its assertion of jurisdiction in this Court.
The instant Consent Agreement, apparently among the first executed by the Administrator, was an attempt by the Administrator to resolve a dispute between the district and GSA over GSA's failure to abide by pre-existing compliance schedules for the Central and the West Heating Plants which GSA had established with the District. When GSA failed to meet the schedules, the District issued an abatement order which contained a new compliance schedule requiring GSA to meet emission limitations by May 31, 1975. Apparently construing the order as a procedural requirement, GSA did not seek review, nor did it seek a variance; it simply refused to comply. On June 5, 1975, the District brought suit against GSA in the Superior
The District urges that we have jurisdiction over its challenge to the Consent Agreement pursuant to Section 307(b)(1) of the Clean Air Act.
Section 307(b)(1) grants exclusive jurisdiction to an appropriate court of appeals to hear challenges to a limited class of actions taken by the Administrator. By its terms, the statute allows review here only if the Administrator's actions are taken pursuant to Sections 110, 111(d), or 119(c)(2)(A), (B), or (C) of the Act. If the action is not taken pursuant to one of these provisions, a court of appeals is without authority to hear a challenge to it in the first instance. The District has not shown that the instant Consent Agreement was entered into in accordance with the statutory scheme; it merely asserts that since the Agreement tracks the statutory scheme in certain respects, particularly through the use of compliance schedules, it is tantamount to an action taken pursuant to statutory authority. While it is true that the Agreement does contain a compliance schedule, we do not believe that that fact alone, nor the existence of other similarities with a statutory implementation plan, may be used to bootstrap an extra-statutory action into a statutorily authorized one for jurisdictional purposes.
The District rests its assertion of jurisdiction in this Court exclusively on a claim of Section 110 action by the Administrator. Section 110 of the Act is a complex provision concerning implementation plans which has given rise to extensive litigation over its proper construction. See Train v. Natural Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), and cases cited therein. It carefully delineates the procedures which must be followed by the States and the Administrator in establishing the initial implementation plan and any revisions thereof. It does not address, however, the sensitive question of the role of federal facilities in this process.
The Executive Branch, taking the position that federal facilities need not comply with State procedural standards such as compliance schedules, developed its own set of procedural guidelines to ensure that federal facilities will ultimately meet substantive goals.
The Petition for Review filed by the District therefore was dismissed for lack of jurisdiction, and for the reasons stated above we affirm that disposition.