I am writing to request that the following items be made a part of the record of the hearings on the bill to amend the Clean Air Act which your committee has just concluded: 1. 2. 3. The letters of February 7, 1977 from Robert A. Anthony, Recommendation 76-4 of the Administrative Conference, The Final Report to the Administrative Conference by Thank you very much. Sincerely, Jeffes Rotters Jeffrey Lubbers At its Fifteenth Plenary Session, the Administrative Conference of the United States adopted Recommendation 76-4: Judicial Review Under the Clean Air Act and the Federal Water Pollution Control Act. For your consideration I am enclosing a copy of the recommendation as well as the report on which the recommendation is based. I am aware that in the 95th Congress your Committee will likely be giving both of these primary pollution control Acts a thoroughgoing review. I would urge that special attention be paid to the Acts' judicial review provisions. The enclosed report shows that experience under the judicial review provisions of these two Acts has highlighted a variety of problems of interpretation and application, leading to unnecessary uncertainty, inconsistency, and unfairness in the enforcement of our environmental laws. The preamble to the recommendation outlines the Conference's main considerati S in adopting this recommendation, which addresses several different though interrelated aspects of judicial review under the Clean Air Act and Federal Water Pollution Control Act. Specific amendments to both Acts are suggested in the areas of: (b) (c) Choice between district court and court of appeals for review I am sure that your Committee will be addressing many other substantial issues in your consideration of these two important statutes, but I hope that the enclosed recommendation will assist you in bringing some needed rationality to the provisions for judicial review of the Environmental Protection Agency's actions. I would appreciate being advised of your Committee's reaction to this recommendation. If my office can be of assistance with respect to new or existing proposed legislation, please let me know.. The Congress has enacted provisions for judicial review in the Clean Air Act and the Federal Water Pollution Control Act (FWPCA) that are in some respects inconsistent, incomplete, ambiguous and unsound. Courts have sometimes felt constrained to stretch these statutes to achieve sensible results. In other instances, courts seem to have ignored sensible general congressional direction in an attempt to do justice in particular cases. On yet other occasions courts have felt compelled by unclear provisions to reach undesirable results that Congress probably did not intend. Experience under the two Acts has highlighted a variety of problems in the interpretation and application of the judicial review provisions, all of which are likely to be addressed by Congress in the near future. This series of recommendations urges that, when Congress reconsiders the judicial review provisions of the principal pollution statutes, it rationalize, alter and clarify them, guided especially by the principle that jurisdictional provisions should draw bright lines to minimize the waste and expense of litigation over whether a case has been brought in the right court. One recommendation is addressed to the Judicial Conference and calls upon the courts, pending congressional action to clarify their powers, to utilize their discretion to transfer judicial review proceedings where transfer will avoid undue duplication of litigation. More specifically, the Conference has in view these considerations: 1. Section 509 (b) of the FWPCA provides that all standards promulgated under it by the Environmental Protection Agency, including national standards, are to be reviewed in the United States Court of Appeals for a circuit in which the petitioner resides or transacts business. Under Section 307 (b) of the Clean Air Act, on the other hand, certain nationally applicable standards are to be reviewed only in the Court of Appeals for the District of Columbia Circuit, but the EPA's actions in approving or promulgating state implementation plans are reviewable only "in the United States Court of Appeals for the appropriate circuit." Thus the FWPCA provides for a decentralized review of national standards, whereas the Clean Air Act requires that analogous standards be reviewed only in the D. C. Circuit. This inconsistency in approach should be resolved; the advantages of expeditious and authoritative review of all national standards in the D. C. Circuit suggests that it is the FWPCA's venue provision which should be amended. All national standards under the FWPCA should be made reviewable in the D.C. Circuit. Review of all other regulations, standards and determinations that are reviewable in the courts of appeals under the FWPCA should be in the circuit containing the affected state or facility. These amendments would entirely supplant the present provisions for review in the circuit in which the petitioner resides or transacts business. The Clean Air Act's specification of "appropriate circuit" as the venue for review of state implementation plan approvals has also created uncertainties, especially when several plan approvals are challenged on identical grounds. Although a perfect resolution is impossible, an amendment, clarifying that the appropriate circuit is the one containing the state whose plan is challenged, would eliminate much of the prospect of threshold litigation over the question of which is the appropriate circuit, and would also avoid the splitting of cases into two different forums whenever local and national issues are present in the same case. The possibility of undue duplication of proceedings that might result can be met by increasing the flexibility of available transfer provisions to remove doubts about the authority of any court of appeals to transfer a case to any other court of appeals. 2. Section 304 of the Clean Air Act and Section 505 of the FWPCA authorize citizen suits in the district courts to require the EPA Administrator to perform "any act or duty under this Act which is not discretionary." Some district courts have accepted jurisdiction under Section 304 over cases that amount to challenges to the Administrator's approval and promulgation of state implementation plans, despite the provision of Section 307 for exclusive jurisdiction in the courts of appeals to review such action. The citizen-suit provisions should not furnish an alternative or premature method of review of questions that can be raised by direct review of the EPA's actions in the courts of appeals. The proper scope of the present citizen-suit provisions is especially unclear in the context of standard-setting, where the line between failure to act and failure to act properly is dim. The difficulty of drawing such a distinction is ample reason for giving the courts of appeals exclusive jurisdiction of actions to compel or to postpone the issuance of regulations whose validity would properly be determined in a court of appeals. It is recognized that in its review of such issues a court of appeals might conclude that the administrative record requires amplification. Since courts of appeals normally do not hold evidentiary proceedings, provision should be made for prior resort or remand to the EPA (or, if that is inappropriate, to the district court) to meet that need. To prevent unfairness from a litigant's choice of the wrong court, Congress should provide for transfer between district courts and courts of appeals of petitions and complaints filed under the Acts. The Court of Claims transfer provision provides a good model. 3. Although both Acts provide expressly for review in the courts of appeals and for citizen suits in the district courts, it remains possible in some circumstances to obtain non-statutory review under general federal question jurisdictional |