No. 04-1127.

407 F.3d 1 (2005)

The NARRAGANSETT ELECTRIC COMPANY, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Commonwealth of Massachusetts, Intervenor.

United States Court of Appeals, First Circuit.

Decided May 6, 2005.

Attorney(s) appearing for the Case

Ernest Gellhorn, Garrett Rasmussen, Jeffrey Wertkin, Law Office of Ernest Gellhorn, and Patton Boggs LLP, on brief for petitioner.

Laurel A. Bedig, Environmental Defense Section, and Thomas L. Sansonetti, Assistant Attorney General, Environmental and Natural Resources Division, United States Department of Justice, on brief for respondent.

William L. Pardee, Assistant Attorney General, Environmental Protection Division, and Thomas F. Reilly, Attorney General, Commonwealth of Massachusetts, on brief for intervenor.

Before BOUDIN, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

The litigation at issue here is an outgrowth of an earlier action appealed to this court, see Commonwealth of Mass. v. Blackstone Valley Elec. Co., 67 F.3d 981 (1st Cir.1995), an environmental case in which we ordered a key question referred to the United States Environmental Protection Agency ("EPA") under the primary jurisdiction doctrine. Not liking the EPA's response, the successor to the defendant...

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