980 F.

2d 272
35 ERC 2074, 137 P.U.R.4th 444, 23
Envtl. L. Rep. 20,357

MONONGAHELA POWER COMPANY; West Penn Power

Company;
Potomac Edison Power Company, Plaintiffs-Appellees,
v.
William REILLY, Administrator of the United States
Environmental Protection Agency, Defendant-Appellant.
Indianapolis Power & Light Company; Northern Indiana
Public
Service Company; Southern Indiana Gas & Electric
Company; PSI Energy, Incorporated, Amici Curiae.
No. 92-1786.

United States Court of Appeals,

Fourth Circuit.
Argued Sept. 30, 1992.
Decided Nov. 24, 1992.
As Amended Jan. 6, 1993.
As Corrected Jan. 8, 1993.

David Carlisle Shilton, U.S. Dept. of Justice, Washington, D.C., argued

(Vicki A. O'Meara, Acting Asst. Atty. Gen., John A. Bryson, Alan D.
Greenberg, U.S. Dept. of Justice, Patricia Embrey, Judith Tracy, Office of
Gen. Counsel, U.S. E.P.A., on brief), for defendant-appellant.
Stephen E. Roady, Andrews & Kurth, L.L.P., Washington, D.C., argued
(Thomas E. Starnes, Christine A. Jones, Andrews & Kurth, L.L.P., on
brief), for amici curiae Indianapolis Power & Light, et al.
William James Murphy, Law Offices of William J. Murphy, Baltimore,
Md., argued (M. Blane Michael, Jackson & Kelly, Charleston, W.Va., on
brief), for plaintiffs-appellees.
Roger J. Marzulla, Akin, Gump, Hauer & Feld, L.L.P., Washington, D.C.,

argued (William J. Brealis, Fritz H. Schneider, Michael S. Ray,

Washington, D.C., Cheryl M. Foley, Ronald J. Brothers, Barbara F.
Gambill, PSI Energy, Inc., Plainfield, Ind., on brief), for amicus curiae,
PSI Energy.
Before PHILLIPS and LUTTIG, Circuit Judges, and TRAXLER, United
States District Judge for the District of South Carolina, sitting by
designation.
OPINION
LUTTIG, Circuit Judge:

The Monongahela Power Company and two other utilities (collectively

"Monongahela") brought suit against the Administrator of the Environmental
Protection Agency to compel him to process their application for an extension
of a compliance deadline and collateral request for emissions allowances,
alleging that the Administrator had failed to perform a nondiscretionary duty
under the Clean Air Act to process the application and request. The district
court, 795 F.Supp. 789, granted Monongahela's motion for a preliminary
injunction enjoining the Administrator to take such action, and he appealed.
Because we conclude that the district court lacked jurisdiction to entertain the
complaint, we vacate its order and remand the case with instructions that it be
dismissed.

I.
2

As part of the 1990 amendments to the Clean Air Act, 42 U.S.C. 7401-7671,
Congress authorized the Administrator to establish a program to control the
effects of acid rain through limitations on emissions allowances. Under the
program established by the Administrator, an affected utility that has been
allocated allowances based on historical emissions has flexibility to comply
with the new emissions requirements by adding to its industrial equipment
sulfur dioxide control technology ("scrubbers"), switching to lower sulfur
content coal, or purchasing additional of the limited, fully marketable
allowances from other utilities to cover its own emissions. This latter allowance
trading system represents the centerpiece of the program.

To encourage the use of scrubbers, certain utilities that install them are allowed
to apply for a two-year extension of a compliance deadline. Id. 7651c(d)(1).
Utilities making such an application become eligible to receive, from a limited
reserve, the additional allowances needed to cover their emissions for the

extension period, as well as additional ("bonus") allowances for use after the
extension period. Id. 7651c(d). Anticipating that the demand for such
allowances would outstrip their supply, Congress directed the Administrator to
"review and take final action on each extension proposal in order of receipt." Id.
7651c(d)(3).
4

On December 3, 1991, the EPA published proposed regulations that established

the key features of the acid rain program, including a suggested means to
determine the "order of receipt" of extension applications. See 56 Fed.Reg.
63,002 (1991). Despite the statutorily imposed May 15, 1992, deadline for
promulgating final regulations, see 42 U.S.C. 7651g(c)(3), the EPA only
recently, on October 26, 1992, issued final regulations. See 58 Fed.Reg. 3590
(1993) (to be codified at 40 C.F.R.).

Owners and operators of Phase I utilities, the highest-emitting plants in the

nation, must submit a permit application and compliance plan "in accordance
with" the EPA's regulations by February 15, 1993. 42 U.S.C. 7651g(c)(1)(A).
Monongahela attempted to file an extension application much earlier, on March
19, 1991, and the EPA refused to act upon it. Instead, the agency stated that it
would consider no applications until it had promulgated final regulations and
that applications filed before that time would not be assigned a rank-order for
purposes of determining their "order of receipt." J.A. at 218-19.

Monongahela brought this suit, alleging a violation of 42 U.S.C. 7651c(d)(3),

the provision requiring the Administrator to act upon applications "in order of
receipt." Monongahela asserted that the Administrator had failed to perform a
nondiscretionary duty within the meaning of the citizen suit provisions of the
Act, 42 U.S.C. 7604(a)(2), and sought a preliminary injunction requiring the
Administrator to review and take final action on its extension application or to
establish a ranking procedure that guaranteed consideration in order of receipt.
In an amended complaint, Monongahela alleged that the Administrator's failure
to process its application represented an "action unreasonably delayed," which
is cognizable under 42 U.S.C. 7604(a).

The Administrator argued below that the district court should dismiss the
complaint for lack of jurisdiction and that, in any event, a preliminary
injunction was inappropriate. The district court rejected both arguments,
holding that the Administrator had failed to perform a nondiscretionary duty.
The court entered a preliminary injunction requiring the EPA to rank
Monongahela's application in order of receipt and to determine its entitlement to
extension and bonus allowances. From this order, an appeal was taken.

The Administrator advances two arguments before this court. First, he contends
that the district court lacked jurisdiction over Monongahela's complaint.
Alternatively, he argues that the district court's preliminary injunction should
be vacated as an abuse of its discretion. Because we agree with his former
claim, we do not reach the latter.

II.
9

We must first determine whether jurisdiction was proper only in the Court of
Appeals for the District of Columbia Circuit pursuant to 42 U.S.C. 7607(b)
(1), which confers on that court exclusive jurisdiction over "petition[s] for
review of ... nationally applicable regulations promulgated, or final action
taken, by the Administrator." See Environmental Defense Fund v. Thomas, 870
F.2d 892, 896 (2d Cir.) ("Because [section 7607] embodies a grant of exclusive
jurisdiction, it appears that if the District of Columbia has jurisdiction over the
present action, the district court does not."), cert. denied, 493 U.S. 991, 110
S.Ct. 537, 107 L.Ed.2d 535 (1989). Such actions must be brought "within sixty
days from the date notice of such promulgation, approval, or action appears in
the Federal Register." 42 U.S.C. 7607(b)(1). The Administrator characterizes
Monongahela's claim as "in substance, an attack on a proposed nationally
applicable regulation" because it allegedly challenges the scheme developed in
the proposed regulations, Appellant's Br. at 28, and argues that it is therefore
both premature and filed in the wrong court.1 Contrary to the Administrator's
assertions, Monongahela's complaint cannot be characterized as a petition for
review of nationally applicable regulations, for at the time it was filed, the EPA
had yet to promulgate any such regulations. We conclude, therefore, that the
Court of Appeals for the District of Columbia Circuit did not have jurisdiction
over Monongahela's claim. This does not end our inquiry, however, for we must
yet determine whether the district court had jurisdiction over this claim under
42 U.S.C. 7604(a)(2). See Environmental Defense Fund, 870 F.2d at 896 ("If
the District of Columbia Circuit does not have jurisdiction ..., then either the
district court has jurisdiction or [plaintiffs] have no forum in which to assert
their claims."); cf. Sierra Club v. Thomas, 828 F.2d 783, 792 (D.C.Cir.1987)
("It does not follow automatically that, if the district court lacks jurisdiction,
then it must lie in [the District of Columbia Circuit], for both courts have just so
much jurisdiction as Congress has provided by statute.").2 III.

10

Jurisdiction of the district court over this suit turns upon the question of
whether the Administrator's challenged course of action violates a
nondiscretionary duty imposed upon him by the terms of the Act. The Act sets
forth its jurisdictional requirements:

11

Except as provided in subsection (b) of this section [notice requirements], any

person may commence a civil action on his own behalf--

******
12
13

(2) against the Administrator where there is alleged a failure of the

Administrator to perform any act or duty under this chapter which is not
discretionary with the Administrator....

******
14
15 district courts shall have jurisdiction, without regard to the amount in
The
controversy or the citizenship of the parties, ... to order the Administrator to perform
such act or duty, as the case may be....
16

42 U.S.C. 7604(a). We need decide today only whether the statute imposed
upon the Administrator a nondiscretionary duty to process extension
applications before he promulgated final regulations implementing the statutory
program. See Sierra Club v. Train, 557 F.2d 485, 488 (5th Cir.1977) ("The
substantive issue in this case is one of statutory construction, specifically
whether [the Act] imposes a discretionary or non-discretionary duty on the EPA
Administrator.").3 We conclude that the statute is silent on this question and
that we must therefore defer to the Administrator's reasonable interpretation of
the statute as not requiring the consideration of extension applications before
the agency's final regulations were in place.

A.
17

The district court concluded that the Administrator had a nondiscretionary duty
under section 7651c(d)(3) to accept and review extension proposals
immediately in the order of their receipt. J.A. at 357-58 ("[T]here is no
statutory authority which suggests that Congress authorized the EPA to defer
consideration of extension proposals until [promulgation of permit program
regulations]."). At the heart of the court's holding was its conclusion that the
Administrator's obligation to review proposals in the order of receipt is "distinct
from" his obligation under 42 U.S.C. 7651g(c)(3) to promulgate permit
regulations. Id. at 357. The Administrator contends that the language of the Act
not only does not impose upon him a nondiscretionary duty to review extension
proposals prior to the promulgation of regulations, see Appellant's Br. at 20, it
"directly contradicts" the conclusion that he had such a duty. Id. at 18. He
argues in the alternative that, even if not dictated by the statutory text, his
interpretation of section 7651c(d)(3) is a reasonable interpretation to which we

must defer. Id. at 22-26.

18

We disagree with the Administrator that the language of the Act "directly
contradicts" the conclusion of the district court. Title 42, section 7651c(d)(1)
provides for utilities to petition for extensions "in [their] permit application
under section 7651g."4 Permit applications and compliance plans must, under
the statute, be submitted "pursuant to regulations promulgated by the
Administrator." See 7651g(b), 7651g(c)(1). The Administrator argues that
because utilities "must" petition for extensions in the permit application itself,
and because the permit application must be filed in accordance with regulations
promulgated by the Administrator, it necessarily follows that an extension
proposal cannot be filed until regulations have been promulgated. From this
syllogism, he reasons that he need not accept or review extension proposals
prior to the promulgation of regulations.

19

Contrary to the Administrator's assertion, see Appellant's Br. at 22; see also
Appellant's Reply Br. at 1, 7, however, section 7651c(d)(1) does not provide
that a utility "must" petition for an extension in its permit application; that
section provides only that a utility "may" petition for an extension in its permit
application. While it may be reasonable to read section 7651c(d)(1) in the
manner proposed by the Administrator, see discussion infra, it is not correct to
say, as the Administrator does, that the language of section 7651c(d)(1) that a
utility may petition for extensions in its section 7651g permit application
"directly contradicts" the district court's conclusion.

20

The Administrator also contends that the "express reference" to section 7651g
in section 7651c(d)(3) "preclude[s] the interpretation of [section 7651c(d)(3) ]
adopted by the district court." Appellant's Br. at 21.5 In this regard, the
Administrator argues that the section's proviso that the Administrator's review
and final action on extension proposals shall be "consistent with section 7651g"
"plainly requires" that regulations be extant before proposals are accepted. Id.
Again, although this may be a plausible interpretation of congressional intent, it
is not manifest from the language of the statute that Congress so intended.
Congress provided in section 7651c(d)(3) only that review and final action on
extension proposals shall be "consistent with" section 7651g; it did not provide
that review and final action shall be undertaken subject to the same
requirements in section 7651g-- i.e., pursuant to regulations. It does not
necessarily follow from the facts that permit applications must be made
"pursuant to regulations promulgated by the Administrator," see 42 U.S.C.
7651g(b), and that a source must submit a permit application and compliance
plan by February 15, 1993, "in accordance with regulations issued by the
Administrator," see id. at 7651g(c)(1), that an extension proposal also must be

submitted pursuant to promulgated regulations. Therefore, like the language of

section 7651c(d)(1), the language of section 7651c(d)(3)'s proviso does not
"directly contradict" or "preclude" the interpretation embraced by the district
court.
21

Although we disagree with the Administrator that the statutory language

unambiguously forecloses an interpretation of section 7651c(d)(3) that
extension proposals must be immediately received and reviewed, we agree with
him that the language of the statute does not expressly or by necessary
implication make provision as to when the Administrator must begin either to
accept proposals for extension or to review submitted proposals. It requires
only that when he begins to review extension proposals, he review and act upon
the proposals in the order in which they were received.

22

In accepting the Administrator's argument that the statute is silent as to when he

must receive and review extension proposals, we of course reject
Monongahela's argument that section 7651c(d)(3)'s requirement that the
Administrator review and act upon extension proposals "in order of receipt" in
itself imposes a duty to review and act immediately. This language does not
define when the Administrator must accept proposals, undertake his review and
act; rather, it is a limitation on the manner in which he must review and take
final action on submitted proposals. He must review the proposals in the order
in which they were received after he began receiving them.

23

Given Congress' silence as to the required timing of the Administrator's receipt

and review of extension proposals, our inquiry devolves into whether the
Administrator's interpretation of the statute not to require review of proposals
prior to the promulgation of governing regulations is reasonable. See Train, 557
F.2d at 489 ("The EPA, as the agency charged with enforcement of the [statute
at issue], construes this statute as imposing a discretionary duty, and in absence
of any cogent argument that the agency's construction is contrary to
congressional intent, the agency's construction will be sustained."); see also
Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843,
104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984). We believe that it is.6

24

Although the Act does not unambiguously authorize the Administrator to await
his regulations before reviewing and acting upon extension proposals, section
7651c(d)(1) does provide, as noted, that utilities may petition for extensions in
their permit applications. A reasonable interpretation of this section is that
Congress intended, as the Administrator contends, that extension proposals
would be submitted only with permit applications. Assuming that this was
Congress' intent, it may reasonably be inferred from the clear requirement in

sections 7651g(b) and 7651g(c)(1) that permit applications be filed pursuant to

regulations, that Congress did not intend for the Administrator to review
extension proposals under section 7651c(d)(3) until his final governing
regulations had been promulgated.
25

The reasonableness of this interpretation is underscored by the proviso in

section 7651c(d)(3) that the Administrator's review and action shall be
"consistent with section 7651g of this title," which section requires permit
applications to be made "pursuant to regulations promulgated by the
Administrator" and requires utilities to submit permit applications and
compliance plans "in accordance with regulations issued by the Administrator."
While one need not read this proviso as effectively requiring the existence of
regulations for the processing of extension proposals, as does the
Administrator, it may be reasonably so read, especially given the language of
section 7651c(d)(1).

26

This interpretation of section 7651c(d)(3) is also supported by the fact that no

other section of the statute provides for the submission of extension proposals.
Finally, it is consistent with the reasonable expectation that Congress would
have provided the EPA with a period of time within which to develop
implementing guidelines before requiring the general public and the agency,
respectively, to submit and review extension proposals.

27

The Administrator's interpretation is by no means the only possible

interpretation of section 7651c(d)(3). As Monongahela argues, section 7651c(d)
(1) could be fairly read as merely authorizing utilities to file their extension
proposals with their permit applications, rather than as requiring that extension
proposals be filed with permit applications. And section 7651c(d)(3)'s proviso
need not be read as the Administrator does. Where, as here, however, Congress'
silence gives rise to ambiguity as to its wishes, the administering agency is not
required to adopt any particular interpretation from among the plausible
alternatives; it need only demonstrate that the interpretation it advances is
reasonable. Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11. The
Administrator, for the reasons stated, has met this burden and accordingly we
must defer to his interpretation.

B.
28

Perhaps anticipating this conclusion, Monongahela argues that we should

accord deference to completed agency rulemaking or factfinding adjudication
only and that deference is especially inappropriate here because, allegedly,
forces at the White House developed the agency's earlier proposed method for

determining order of receipt. See Appellees' Br. at 29-30. Neither argument has
merit. Even assuming that an agency's litigation position is entitled to less
deference than are other articulations of the agency's views, cf. Church of
Scientology v. IRS, 792 F.2d 153, 162 n. 4 (D.C.Cir.1986) (en banc ) ("There is
some question ... whether an interpretive theory put forth only by agency
counsel in litigation ... constitutes an 'agency position' for purposes of
Chevron."), aff'd, 484 U.S. 9, 108 S.Ct. 271, 98 L.Ed.2d 228 (1987), the
interpretation advanced by the Administrator in this case represents far more
than a mere "litigation position."7 The EPA consistently has maintained this
position, at the very least since the time it rejected Monongahela's application.
Now, of course, the agency has even embodied its interpretation in final
regulations implementing the Act.
29

Monongahela's second argument, even if we accept as true the premise that the
White House exerted influence over the EPA, is frivolous. The authority of the
President over executive agencies and departments is without exception, save as
may exist by law, because all executive power exercised by the federal agencies
derives from the Chief Executive. The various agencies and departments are
not autonomous of the President. See Sierra Club v. Costle, 657 F.2d 298, 405
(D.C.Cir.1981) ("recogniz[ing] the basic need of the President and his White
House staff to monitor the consistency of executive agency regulations with
Administration policy"). Thus, any policymaking influence exerted over the
EPA by the White House--provided such was consistent with law--was fully
permissible under our tripartite system of separated powers. Id. at 406 ("The
authority of the President to control and supervise executive policymaking is
derived from the Constitution; the desirability of such control is demonstrable
from the practical realities of administrative rulemaking." (footnote omitted)).

CONCLUSION
30

For the reasons set forth above, we conclude that the district court lacked
jurisdiction over this action under 42 U.S.C. 7604(a)(2). Therefore, we vacate
its order and remand with instructions to dismiss the complaint.

31

VACATED AND REMANDED.

The Administrator does not contend that the district court lacked jurisdiction
because EPA's refusal to process Monongahela's application constituted final
agency action within the meaning 42 U.S.C. 7607(b)(1)--for which appeal
lies exclusively in the D.C. Circuit--and we do not address this issue

Monongahela's amended complaint asserted a claim under 42 U.S.C. 7604(a)

("The district courts of the United States shall have jurisdiction to compel
agency action unreasonably delayed...."). The district court did not address this
provision, much less rely on it for jurisdiction, nor could it have done so. Even
if jurisdiction could have existed under the "unreasonably delayed" language in
the context of the relief sought, Monongahela failed to comply with the related
notice requirement. See id. ("In any such action for unreasonable delay, notice
... shall be provided 180 days before commencing such action."). While the
Administrator concedes that on October 11, 1991, Monongahela gave proper
60-day notice of the impending suit under section 7604(a)(2), see 42 U.S.C.
7604(b)(2); Appellant's Br. at 27 n. 5, this notice did not suffice as notice of an
action for unreasonable delay. Citizen suit notice requirements are "mandatory
conditions precedent to commencing suit" and may not be avoided by
employing a "flexible or pragmatic" construction. Hallstrom v. Tillamook
County, 493 U.S. 20, 26, 31, 110 S.Ct. 304, 308, 311, 107 L.Ed.2d 237 (1989);
accord Middlesex City Sewerage Auth. v. National Sea Clammers Ass'n, 453
U.S. 1, 14, 101 S.Ct. 2615, 2623, 69 L.Ed.2d 435 (1981); Walls v. Waste
Resource Corp., 761 F.2d 311, 316-17 (6th Cir.1985); Garcia v. Cecos Int'l,
Inc., 761 F.2d 76, 81-82 (1st Cir.1985)
It would transgress this authority to hold that a notice letter that specifically
referred only to a "potential 'citizen suit' against the Administrator of the EPA
arising under 42 U.S.C. 7604(a)(2)," J.A. at 223, suffices as notice of an
action for unreasonable delay under 42 U.S.C. 7604(a). Monongahela did not
even amend its complaint to compel agency "action unreasonably delayed" until
April 9, 1992. It is difficult to conceive how Monongahela could be said to
have given notice in its October letter of an intention to bring an action for
unreasonable delay when it did not file a complaint alleging such delay until
nearly four months following the filing of its original complaint under section
7604(a)(2), which not coincidentally was filed approximately sixty-nine days
following the October notice.

The term "nondiscretionary" has been construed narrowly. See Environmental

Defense Fund, 870 F.2d at 899 ("[T]he district court has jurisdiction under
[section 7604] to compel the Administrator to perform purely ministerial
acts...."); Sierra Club, 828 F.2d at 791 ("clear-cut nondiscretionary duty");
Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1355 (9th Cir.1978) (citizen
suit provision was intended to " 'provide relief only in a narrowly-defined class
of situations in which the Administrator failed to perform a mandatory function'
" (quoting Wisconsin's Envtl. Decade, Inc. v. Wisconsin Power & Light Co.,
395 F.Supp. 313, 321 (W.D.Wis.1975))); Mountain States Legal Found. v.
Costle, 630 F.2d 754, 766 (10th Cir.1980) ("specific non-discretionary clear-cut
requirements"), cert. denied, 450 U.S. 1050, 101 S.Ct. 1770, 68 L.Ed.2d 246

(1981)
Monongahela assails these decisions, asserting that "[i]t is doubtful whether the
more restrictive aspects of the decisions relied upon by [the Administrator]
remain good law following the extensive amendments to the Citizen Suit
provisions made in 1990." See Appellees' Br. at 25. The 1990 amendments,
however, did not change the language of section 7604(a)(2). Rather, they added
new language establishing jurisdiction over suits seeking to compel action
"unreasonably delayed," a basis of jurisdiction not relied upon by the district
court. See supra note 2.
4

That section provides in relevant part as follows:

The owner or operator of any affected unit subject to an emissions limitation
requirement under this section may petition the Administrator in its permit
application under section 7651g of this title for an extension of 2 years of the
deadline for meeting such requirement....
42 U.S.C. 7651c(d)(1) (emphasis added).

That section provides in relevant part as follows:

The Administrator shall review and take final action on each extension proposal
in order of receipt, consistent with section 7651g of this title and for an
approved proposal shall designate the unit or units as an eligible phase I
extension unit.
42 U.S.C. 7651c(d)(3).

The Administrator suggests that unless the plain terms of the statute impose a
nondiscretionary duty, then none exists. See, e.g., Appellant's Br. at 22-23;
Appellant's Reply Br. at 13. We are not persuaded that this is correct.
Presumably, the existence of a nondiscretionary duty could be recognized
through application of Chevron's rule of construction, even if it could not arise
by inference, see Appellant's Br. at 22-23. For example, the Administrator
could reasonably interpret an ambiguous statute so as to impose a
nondiscretionary duty. In such a circumstance, the duty would exist no less than
if it appeared on the face of the statute

Even if the EPA's interpretation were a mere litigation position, the

justifications generally advanced for discounting such a substantive position are
conspicuously absent in this case. See FLRA v. United States Dep't of
Treasury, 884 F.2d 1446, 1455 (D.C.Cir.1989) (litigation position may not
reflect the view of the agency heads or may have been developed hastily

without presentation of contrary views), cert. denied, 493 U.S. 1055, 110 S.Ct.
863, 107 L.Ed.2d 947 (1990)