The opinion of the court was delivered by: BARRINGTON D. PARKER
Barrington D. Parker, District Judge:
The Environmental Defense Fund, Inc. (EDF), a nonprofit corporation concerned with the preservation and improvement of the environment, brings this action to challenge the decision of Douglas M. Costle, Administrator of the Environmental Protection Agency (EPA) to defer implementation of § 165(a) of the 1977 Amendments to the Clean Air Act
(Act) beyond August 7, 1977, the date of its enactment. This section is one of several new provisions aimed at prevention of significant deterioration (PSD) of air quality in clean air areas of the country and provides that "no major emitting facility on which construction is commenced after the date of the enactment of this part" may be constructed unless a permit has been issued pursuant to several requirements. Facing a conflict between the language of § 165 and other sections of the 1977 Amendments, the Administrator decided not to apply that section to facilities which obtained PSD permits under existing EPA regulations before March 1, 1978.
The plaintiff claims that Administrator Costle has a nondiscretionary obligation to implement § 165 promptly, which he has failed to perform. EDF brings this citizen suit under § 304 (a)(2) of the Act,
seeking declaratory and injunctive relief enforcing § 165 as of August 7, 1977. Before the Court is EDF's motion for preliminary injunction to prevent issuance of permits to facilities not in compliance with the section and to stay construction by any party holding a PSD permit issued since August 7, 1977.
In opposing the motion for preliminary injunction, the Administrator has been joined by several defendant intervenors, including electric utilities and other companies engaged in the development and production of energy resources.
Generally, they have applied for or have received PSD permits under existing EPA regulations since August 7, 1977, or would be otherwise affected if § 165 were to be applied retroactively to August 7. They have moved to dismiss the complaint for lack of subject matter jurisdiction, alleging that under § 307(b)(1),
review of the Administrator's decision here rests exclusively in the United States Court of Appeals for the District of Columbia. Other intervenors seek dismissal of the complaint for failure to state a cause of action.
The Court has considered the legal memoranda, exhibits, affidavits and argument of counsel and concludes that the Court of Appeals has exclusive jurisdiction of the issues raised here and that the Administrator had discretion to determine when to implement § 165. Accordingly, the complaint must be dismissed for lack of subject matter jurisdiction.
Prior to enactment of the 1977 Amendments, EPA regulations governed PSD program requirements for state implementation plans. 40 C.F.R. § 52.21. New sections 160-169(a) of the Act follow the basic outline of the regulations by dividing clean air areas into classes, setting allowable increments for various pollutants, and providing for the reclassification of areas. The new sections are, however, more stringent than the regulations in several respects.
To ease the transition, § 168,
entitled "Period Before Plan Approval," provides that until state plans are revised to meet new standards, "applicable regulations . . . shall remain in effect" with three exceptions specified in subsection (b). These exceptions called for immediate amendments to regulations to satisfy the requirements of § 162(a) (classification of parks and wilderness areas as Class I); § 163(b) (allowable increments of sulfur dioxide and particulate matter); and § 164(a) (prohibition of reclassification of certain areas to Class III).
Section 165 is conspicuously absent from the list of immediate changes in § 168(b). However, the language of § 165 calls for immediate implementation, providing in relevant part that:
no major emitting facility on which construction is commenced after the date of the enactment of this part may be constructed in any area to which this part applies unless--
(1) a permit has been issued . . . in accordance with this part . . .
(2) . . . the required analysis has been conducted in accordance with regulations promulgated by the Administrator, and a public hearing has been held . . .
(4) the proposed facility is subject to the best available control technology for each pollutant subject to regulation under ...