161. ACUS Rec. 75-3, P 6, in 1974-75 Report, p. 45.

165. 344 F. Supp. 253 (D.D.C. 1972), aff'd mem. D.C. Cir. (unreported), aff'd by an equally divided court, 412 U.S. 541 (1973).

166. 352 F. Supp. 697 (D. Colo. 1972), reversed, 482 F.2d 1301 (10th Cir. 1973).

167. Accord, Luneburg & Roselle, Judicial Review Under the

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Clean Air Act Amendments of 1970, 15 B.C. Ind. & Comm. L.R. 667, 691 n. 145 (1974). The same result should be reached under the water statute, despite the absence from §509 of the word "only"; for district-court review would contradict the policy of expeditious review evident in placing jurisdiction in the courts of appeals.

168. E.g., Lever Bros. Co. v. FTC, 325 F. Supp. 371 (D. Mc. 1971). Cf. Toilet Goods Ass'n v. Gardner, 387 U.S. 158 (1967), holding unripe an attack on an adopted regulation that the Court said had no immediate effect upon the plaintiffs.

169. Utah International Inc. v. EPA, supra n. 113.

170. If, as argued in Anaconda, there is a real danger of irreparable harm in waiting until promulgation to seek review, that argument might be better directed to opening the court of appeals under $307 in order to respect the policy of direct review. However, one presupposition of direct review is that there will be no need for a trial, which the appellate court is ill-equipped to conduct, and the court can hardly base its decision on what was before the Administrator if the latter has not completed his proceedings. This problem diminishes to the considerable extent to which the issues are of law or

84-239 - 77 - 25

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of legislative fact that may be debated in briefs without trial; and it may be that a claim of irreparable harm prior to promulgation is always insufficient to overcome countervailing policies in light of the possibility of staying the final regulation pending judicial review. In any event, §304 should not be used to circumvent the principle of direct review absent a most convincing showing that immediate district-court review is imperative.

171. 482 F.2d 1301 (1973).

172. Tactical considerations such as the desirability

of avoiding multiple litigation (cf. part V of this paper) and the availability of attorneys' fees may well influence a party's decision to seek review in a district court. But the questions of fees and of centralized review are analytically separable from the question_of review in the district court or court of appeals; they should be dealt with on their own merit, and should not be permitted to distort the present issue.

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175. Natural Resources Defense Council, Inc. v. EPA, 512 F.2d 1351, 1356 (D.C. Cir. 1975).

176. Ibid.

177. Work v. United States ex rel. Rives, 267 U.S. 175 (1925); see Gellhorn & Byse, Administrative Law 151-53 (6th ed. 1974). There are still courts that refuse mandamus under 28 U.S.C. §1361 for abuse of discretion. E.g., Ortego v. Weinberger, 516 F.2d 1005 (5th Cir. 1975). The court in Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654, 662-63 (D.C. Cir. 1975), saying that $304 was meant to reach only matters on which there is no discretion at all, relied on the insertion of the words "not discretionary" in conference and the committee's explanation that the provision had been "limited" to "mandatory functions." But the committee may simply have been concerned to make doubly certain that the courts did not substitute their judgment for the Administrator's when he had acted within the scope of his discretion. The court gave no reason that might have led Congress to wish to preserve a distinction admittedly "'abstract and conceptual,' 515 F.2d at 662.

178. Cf. City of Highland Park v. Train, 519 F.2d 681 (7th Cir. 1975), holding a district court had no jurisdiction under $304 to review the Administrator's decision

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to make indirect-source regulations inapplicable to sources whose construction was commenced before January 1, 1975, over the objection that he had failed "to promulgate regulations with respect to such facilities": "A pro

vision defining the scope of regulations and their effective date is as much a part of the regulations as the substantive parts." The same opinion dismissed for failure to give the required notice a §301 claim that the Administrator had unlawfully omitted several pollutants from the nondegradation regulations and held this claim could not be made under $307, saying the allegation was of failure to act. Because the inclusion of these pollutants had been extensively considered in the rulemaking proceeding, on my test this latter ruling was in error. A significant prematurity problem, cf. American Iron & Steel Inst. v. EPA, TAN 000-000 supra, was avoided because the Administrator explicitly incorporated the nondeterioration rules into existing implementation plans. Consequently, the District of Columbia Circuit has properly entertained under §307 the argument that the Administrator erred in approving a plan not limiting degradation by automotive pollutants.

Sierra Club v. EPA, 540 F.2d

1114 (1976).

179. 515 F.2d 654 (D.C. Cir. 1975).

180. Specifically the plaintiffs asked that the EPA