The opinion of the court was delivered by: SIRICA
This case arises out of administrative action taken by the Environmental Protection Agency (EPA) under section 5(b)
of the Noise Control Act, P.L. 92-574, 86 Stat. 1234, 42 U.S.C. §§ 4901-18 (Supp. V 1975), designating lawnmowers a "major source of noise" within the meaning of the Act. This designation commits the agency, under section 6(a)
of the Act, 42 U.S.C. § 4905(a) (Supp. V 1975), to begin an administrative process culminating in the issuance of appropriate regulations. Plaintiff, a trade association of lawnmower manufacturers, seeks an order voiding the designation and prohibiting the agency from proceeding to promulgate regulations for lawnmowers.
Plaintiff challenges the action taken by EPA as repugnant to the due process clause of the fifth amendment, as contrary to the notice and comment requirements imposed by the Administrative Procedure Act, 5 U.S.C. § 553 (1970), as beyond the scope of statutory authority and as arbitrary, capricious and an abuse of discretion. The matter is presently here on plaintiff's application for a preliminary injunction and defendant's motion to dismiss the action for lack of subject matter jurisdiction and because the administrative decision under attack is neither final nor ripe for review. For the reasons that follow, the Court is of the opinion that jurisdiction over the subject matter is lacking and, for this reason, the action must be dismissed.
Under section 16(a) of the Act, 42 U.S.C. § 4915(a) (Supp. V 1975):
A petition for review of action of the Administrator of the Environmental Protection Agency in promulgating any standard or regulation under section 4905, 4916, or 4917 of this title may be filed only in the United States Court of Appeals for the District of Columbia. . . within ninety days from the date of such promulgation . . . . Action . . . with respect to which review could have been obtained under this subsection shall not be subject to judicial review in civil or criminal proceedings for enforcement. (emphasis supplied).
The aim of this provision is clear. It is to make the Court of Appeals for this Circuit the exclusive judicial forum for reviewing EPA regulations issued under the statutory mandates of 42 U.S.C. §§ 4905 & 4916-17 to control noise emissions from railroad carrier equipment (§ 4916), motor carrier equipment (§ 4917) and, as is relevant here, items designated as "major sources of noise" (§ 4905). Thus if what plaintiff here is seeking to have reviewed is agency action reviewable under § 4915(a), then this Court lacks the power to entertain the challenge, and plaintiff must pursue his judicial remedies in the Court of Appeals.
Plaintiff agrees, as indeed it must, that this is the proper construction to be given § 4915(a). But it argues that the administrative action being challenged here is not a matter covered by this provision, and hence, the general jurisdiction of this Court is left undisturbed. The apparent basis for plaintiff's argument is a reading of the statute that imputes to Congress an intent to bifurcate the administrative process for controlling noise emissions into two separate and mutually exclusive steps, only one of which is subject to exclusive judicial review in the Court of Appeals. According to plaintiff, the first of these assertedly independent steps involves an administrative determination that noise controls are needed and takes the form of a published report, under section 5(b) of the Act, 42 U.S.C. § 4904(b) (Supp. V 1975), designating a product "a major source of noise." The second step involves the issuance of regulations applicable to the item so designated in the section 5(b) report. These regulations are statutorily mandated unless the agency determines that regulatory measures are "not feasible" within the meaning of section 6(a) of the Act, 42 U.S.C. § 4905(a) (Supp. V 1975). Plaintiff reasons that because the exclusive review provision is drafted to cover only action taken by EPA under 42 U.S.C. § 4905(a), the second of the required steps, then the section 5(b) designation, the first step, must therefore be reviewable in any court of competent jurisdiction.
This reasoning however is premised on a misreading of the statute. In the Court's opinion, sound policy and a proper regard for the structure and legislative purposes behind the Noise Control Act compel the conclusion that administrative action taken under § 4904(b) of the statute is not to be treated for purposes of judicial review as separate and distinct from action taken under § 4905(a). To conclude otherwise would misconstrue the single, continuous regulatory process plainly envisioned by the Act.
Section 5(b) of the Act, 42 U.S.C. § 4904(b) (Supp. V 1975), commands the EPA to commence an investigative program culminating in the identification of noise sources that warrant regulatory action:
Additional reports are to follow at intervals chosen by the agency.
Once these reports are published, section 6(a) of the Act, 42 U.S.C. § 4905(a) (Supp. V 1975), requires the agency promptly to issue proposed regulations for any product ...