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AMERICAN LUNG ASS'N v. REILLY

Docket 92-6060.

962 F.2d 258 (1992)

AMERICAN LUNG ASSOCIATION, American Lung Association of Nassau-Suffolk, American Lung Association of Queens, American Lung Association of Brooklyn, Environmental Defense Fund, Natural Resources Defense Council, State of New York, State of Connecticut, Commonwealth of Massachusetts, State of Maine, State of Rhode Island and Joseph Bergen, Plaintiffs-Appellees, v. William K. REILLY, Administrator of the U.S. Environmental Protection Agency and the U.S. Environmental Protection Agency, Defendants-Appellees, Alabama Power Company, Appalachian Power Company, Baltimore Gas & Electric Company, Carolina Power & Light Company, Centerior Energy Corporation, Cleveland Electric Illuminating Company, Toledo Edison Company, Central & South West Services, Inc., Central Power & Light Company, Public Service Company of Oklahoma, Southwestern Electric Power Company, West Texas Utilities Company; Central Hudson Gas & Electric Corporation; Central Illinois Light Company; Central Illinois Public Service Company; The Cincinnati Gas & Electric Company; Columbus Southern Power Company; Commonwealth Edison Company; Consolidated Edison Company of New York, Inc.; Consumers Power Company; the Dayton Power & Light Company; Delmarva Power & Light Company; the Detroit Edison Company; Duke Power Company; Duquesne Light Company; Florida Power & Light Company; Florida Power Corporation; Georgia Power Company; Gulf Power Company; Illinois Power Company; Indiana Michigan Power Company; Indianapolis Power & Light Company; Iowa Public Service Company; Kansas City Power & Light Company; Kentucky Power Company; Kentucky Utilities Company; Madison Gas & Electric Company; Minnesota Power Company; Mississippi Power Company; Monongahela Power Company; NYS Electric & Gas Corporation; Northern Indiana Public Service Company; Oglethorpe Power Corporation; Ohio Edison Company; Pennsylvania Power Company; Ohio Power Company; Ohio Valley Electric Corporation; Oklahoma Gas & Electric Company; Pacificorp Electric Operations; Pacific Gas & Electric Company; Pennsylvania Power & Light Company; the Potomac Edison Company; Potomac Electric Power Co.; PSI Energy, Inc.; Public Service Electric & Gas Company; Salt River Project; Savannah Electric & Power Company; South Carolina Electric & Gas Company; Southern California Edison Company; Tampa Electric Company; Tucson Electric Power Company; Union Electric Company; Virginia Power; West Penn Power Company; Wisconsin Electric Power Company; Wisconsin Power & Light Company; Wisconsin Public Service Corporation; Edison Electric Institute; American Public Power Association; National Rural Electric Cooperative Association; Appellants.

United States Court of Appeals, Second Circuit.

Decided May 4, 1992.

Attorney(s) appearing for the Case

Henry V. Nickel, Washington, D.C. (Lucinda Minton Langworthy, Norman W. Fichthorn, Hether C. Macfarlane, Hunton & Williams, Washington, D.C.; Franklin H. Stone, Harold C. Geary, Hunton & Williams, New York City, of counsel), for appellants.

Robert J. Zastrow, New York City (Karen S. Jore, Gregory R. Belcamino, Strook & Strook & Lavan, of counsel), for plaintiffs-appellees American Lung Ass'n, American Lung Ass'n of Nassau-Suffolk, American Lung Ass'n of Queens, American Lung Ass'n of Brooklyn, Environmental Defense Fund and Joseph Bergen.

Robert Abrams, Atty. Gen. of the State of New York (Peter H. Schiff, Deputy Sol. Gen.; Joan Leary Matthews, Asst. Atty. Gen., New York State Dept. of Law, of counsel), for plaintiff-appellee State of N.Y.

Craig D. Galli, U.S. Dept. of Justice, Environment & Natural Resources Div., Environmental Defense Section (Gerald K. Gleason, of counsel), filed a letter for defendants-appellees.

Before: TIMBERS and PRATT, Circuit Judges, and Michael B. MUKASEY, District Judge of the United States District Court for the Southern District of New York, sitting by designation.

GEORGE C. PRATT, Circuit Judge:

Sixty-seven electric utilities and three electric utility industry associations (collectively, "utilities") appeal from an order of the United States District Court for the Eastern District of New York, John R. Bartels, Judge, which denied their motion to intervene as of right as defendants in a citizen suit brought under the Clean Air Act, 42 U.S.C. § 7401 et seq., to compel the Environmental Protection Agency (EPA...

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