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NATURAL RESOURCES DEFENSE COUNCIL, INC. v. E.P.A.

Nos. 92-1535, 92-1596, 93-1004 and 92-1630.

22 F.3d 1125 (1994)

NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner, Administrator, EPA, Respondents. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner, Administrator, EPA, Respondents, Alabama Power Company; Appalachian Power Company; Baltimore Gas and Electric Company; Boston Edison Company; Carolina Power and Light Company; Centerior Energy Corporation; Cleveland Electric Illumination 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; Cincinnati Gas & Electric Company; Columbus Southern Power Company; Consolidated Edison Company of New York, Inc.; Commonwealth Edison Company; Consumers Power Company; Dayton Power and Light Company; Delmarva Power & Light Company; 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; Jacksonville Electric Authority; Kansas City Power & Light Company; Kentucky Power Company; Kentucky Utilities Company; Long Island Lighting Company; Louisville Gas and Electric Company; Madison Gas and Electric Company; Midwest Power Systems, Inc.; Minnesota Power Company; Mississippi Power Company; Monongahela Power Company; Montaup Electric Company; New England Power Company; New York State Electric & Gas Corporation; Niagara Mohawk Power Corporation; Northern Indiana Public Service Company; Oglethorpe Power Corporation; Ohio Edison Company; Pennsylvania Power Company; Ohio Power Company; Ohio Valley Electric Corporation; Oklahoma Gas and Electric Company; Pacificorp Electric Operations; Pennsylvania Power & Light Company; Philadelphia Electric Company; The Potomac Edison Company; Potomac Electric Power Company; PSI Energy, Inc.; Public Service Company of New Mexico; Public Service Electric & Gas 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 Public Service Corporation; Edison Electric Institute; National Rural Electric Cooperative Association; American Public Power Association; Toledo Edison Company; Central and South West Service, Inc.; Central Power and Light Company, Intervenors. NATIONAL AUTOMOBILE DEALERS ASSOCIATION; California Motor Car Dealers Association; New Jersey Automobile Dealers Association, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner, Administrator, EPA, Respondents, Envirotest Systems Corporation, Intervenor. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY; Carol M. Browner, Administrator, EPA, Respondents, Alabama Power Company; Appalachian Power Company; Baltimore Gas and Electric Company; Boston Edison Company; Carolina Power and Light Company; Centerior Energy Corporation; Cleveland Electric Illumination Company; Toledo Edison Company; Central and South West Service, Inc.; Central Power and 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; Cincinnati Gas & Electric Company; Columbus Southern Power Company; Commonwealth Edison Company; Consolidated Edison Company of New York, Inc.; Consumers Power Company; Dayton Power and Light Company; Delmarva Power & Light Company; 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; Jacksonville Electric Authority; Kansas City Power & Light Company; Kentucky Power Company; Kentucky Utilities Company; Long Island Lighting Company; Louisville Gas and Electric Company; Madison Gas and Electric Company; Midwest Power Systems, Inc.; Minnesota Power Company; Mississippi Power Company; Monongahela Power Company; Montaup Electric Company; New England Power Company; New York State Electric & Gas Corporation; Niagara Mohawk Power Corporation; Northern Indiana Public Service Company; Oglethorpe Power Corporation; Ohio Edison Company; Pennsylvania Power Company; Ohio Power Company; Ohio Valley Electric Corporation; Oklahoma Gas and Electric Company; Pacificorp Electric Operations; Pennsylvania Power & Light Company; Philadelphia Electric Company; Potomac Electric Power Company; PSI Energy, Inc.; Public Service Company of New Mexico; Public Service Electric & Gas Company; Salt River Project; Savannah Electric and 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 Public Service Corporation; Edison Electric Institute; National Rural Electric Cooperative Association; American Public Power Association; The Potomac Edison Company, Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided May 6, 1994.

Suggestion for Rehearing Denied August 5, 1994.

Attorney(s) appearing for the Case

David M. Driesen argued the cause for petitioner Natural Resources Defense Council. On briefs were David G. Hawkins and Neil J. King.

William J. Hamel argued the cause for petitioners National Auto. Dealers Ass'n, et al. On briefs were Douglas I. Greenhaus and Dimitri G. Daskal. George T. Marcou entered an appearance.

Seth M. Barsky and Ronald M. Spritzer, Attorneys, U.S. Dept. of Justice, argued the cause for the respondents. On briefs were Lois J. Schiffer, Acting Asst. Atty. Gen., Martin F. McDermott, Attorney, U.S. Dept. of Justice, and Jan Tierney, Sara Schneeberg and Michael Prosper, Counsel, U.S.E.P.A.

On briefs for intervenor Envirotest Systems Corp. was Roger J. Marzulla. Mark P. Fitzsimmons entered an appearance.

On brief for intervenors Alabama Power Co., et al. were Henry V. Nickel, Andrea Bear Field and Ross S. Antonson.

Before MIKVA, Chief Judge, WALD and HENDERSON, Circuit Judges.

Suggestion for Rehearing In Banc Denied August 5, 1994.

Opinion for the court filed PER CURIAM.

PER CURIAM:

The petitioners seek review of decisions of the Environmental Protection Agency ("EPA") implementing the 1990 Amendments to the Clean Air Act ("CAA"), 42 U.S.C. §§ 7401 et seq. First, petitioner Natural Resources Defense Council, Inc. ("NRDC") challenges the EPA's policy of permitting conditional approval of committal state implementation...

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