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233. Cf. the express provision in the Illinois Environmental Protection Act, Ill. Rev. Stat., ch. 1111, §1027, that regulations "may make different provisions as required by circumstances for different contaminant sources and for different geographical areas." This authority to tailor the rule to the need should be held implicit in the federal statutes, since no intention appears to require the EPA to ignore distinctions relevant to statutory standards.

See Currie, Federal Air-Quality Standards

and Their Implementation, 1976 A.B.F.R.J. 365, 368-69. Especially stringent water-quality standards for highquality recreational waters are common at the state level. E.g., Ill. PCB Regs., ch. 3, Rule 206 (Lake Michigan).

234. See 38 Fed. Reg. 10317 (1973).

235 37 Fed. Reg. 10842.

236. Clean Air Act, §110(a)(1), 42 U.S.C. §1856c-5(a)(1).

237. Id., §110(e), 42 U.S.C. §1857c-5(3).

238. Id., §110(a)(2)(B), 42 U.S.C. §1857c-5(a)(2)(B).

239. In light of $307(b)(1), 42 U.S.C. §1857h-5(b)(1), which requires challenges to EPA approval of implementation

plans to be filed within 30 days.

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240. See National Resources Defense Council, Inc. v. EPA,

465 F.2d 492, 493 (1st Cir. 1972), quoting from the petitioners' brief.

241. See 3 Environmental Law Reporter 10013 (1973).

242. Natural Resources Defense Council, Inc. v. EPA, 465

F.2d 492 (1972).

243. Clean Air Act, §110(f)(2)(B), 42 U.S.C. §1857c-5(f)(2)(B).

244. 465 F.2d at 494.

245. 465 F.2d at 495.

246. It is not altogether clear that the First Circuit's decision that the District of Columbia was the "appropriate" forum to entertain an attack upon all implementation-plan approvals was a requisite to transfer under §2112(a). The court opined that any requirement that the transferee court be one in which the petition was properly filed "might be thought of as" satisfied by the holding that the District was the "appropriate" forum. It also expressed "doubts," however, that there was any such requirement:

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Since the first petition had been filed in the D.C. Circuit, "we are granted express authority to transfer this case to the D.C. Circuit"--apparently even if venue was improper there. Eastern Air Lines, Inc. v. CAB, 354 F.2d 507, 510-11 (D.C. Cir. 1965), so holds. Yet, though the statute, unlike the district-court transfer provision in 28 U.S.C. §1401(a), contains no express limitation requiring transfer to a court in which the proceeding "might have been brought," see Hoffman v. Blaski, 363 U.S. 335 (1960), Congress could scarcely have intended to frustrate applicable venue limitations by permitting a litigant to bootstrap himself into an inappropriate forum simply by filing there first and then requesting transfer from a proper forum in which an identical petition is later filed. Surely the question whether the first petition was properly filed must be open after transfer in such a case; if

it is, no useful purpose would be served by transferring other petitions there only to be dismissed along with the one erroneously filed.

A less radical interpretation of §2112(a) might also sustain transfer without a determination that the transferee circuit has jurisdiction with respect to every state's plan that is under attack. The transfer section requires only that proceedings be instituted in two or more courts with respect to "the same order." It might therefore suffice, even if the transferee forum must have jurisdiction, that

84-239 O-77-26

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it have jurisdiction over some portion of the order; and the jurisdiction of the D. C. Circuit over the Administrator's order insofar as it affected the District of Columbia was clear. This argument, however, would require transfer if one petition attacked a provision based upon considerations peculiar to California and another one peculiar to Connecticut, while forbidding transfer if the Administrator had chosen to enunciate parallel actions respecting several States in more than one formally titled "order." It might be preferable, when a single order disposes of

a variety of disparate matters, to determine the meaning of "order" on the admittedly uncertain basis of litigation convenience in the particular case.

A further problem with transfer concerns whether or not regulations are "orders" within §2112. The Administrative Procedure Act excludes them from its definition of "orders," 5 U.S.C. 8551(6), and some courts have held

them outside provisions for direct review of administrative "orders" in the courts of appeals, see Currie & Goodman, supra n. 80, 75 Colum. L Rev. at 39-41.

It is highly probable that what Congress had in mind in the transfer statute were adjudicative orders; the statute and its history reek with references to the "record," see S. Rep. No. 2129, 85th Cong., 2d Sess. (1958), which is a concept only recently given content as to rulemaking

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decisions not required to be based on the record, see Currie & Goodman, supra, 75 Colum. L. Rev. at 43-48. The potential multiplicity of parties and of issues may make the appropriateness of mandatory transfer and consolidation less clear when general regulations are to be reviewed. The First Circuit's holding that the District of Columbia Circuit was the appropriate one in NRDC may have meant that venue was improper in the transferor court; and a later decision has held §2112 inapplicable in such an instance, Dayton Power & Light Co. v. EPA, 520 F.2d 703, 708 (6th Cir. 1975), without giving reasons. Contra, NLRB v. Bayside Enterprises, Inc., 514 F.2d 275 (1st Cir. 1975). Neither the language nor the purpose of §2112, however, appears to make this fact decisive, though a comparable district-court provision was apparently thought insufficient to provide for transfer from an improper forum. See 28 U.S.C. §§1404 (a), 1406.

Goldlawr v. Heiman,

369 U.S. 463 (1962), lends some support to a broad reading here, for it held $1406, wihch expressly dispenses with the need for proper venue, implicitly makes personal jurisdiction unnecessary as well.

Finally, several courts have found an "inherent" power in the courts of appeals to transfer cases, even from a forum in which venue is improper, e.g., GeorgiaPacific Corp. v. FPC, 512 F.2d 782 (5th Cir. 1975); Dayton Power & Light Co. v. EPA, supra, but only to a court in