UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
COMMITTEE, CITIZENS ENVIRONMENTAL COUNCIL OF GREATER KANSAS
AIR, GERALD L. JENSEN, ESQUIRE, AND MARGA M. RASKIN, PETITIONERS v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT
NATURAL RESOURCES DEFENSE COUNCIL, INC., FRIENDS OF THE
EARTH, INC., PAUL F. MCCLAIN, AND PAM FORDING, PETITIONERS
v. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT COMMONWEALTH
Nos. 72-1522, 72-1598, 72-1810, 72-1941, 72-1982, 72-1985, 72-2028, 72-2159 1973.CDC.26
On Petitioners' Motion for Summary Reversal.
Bazelon, Chief Judge, and Wright and MacKinnon, Circuit Judges. MacKinnon, Circuit Judge, concurring.
These causes came on for consideration of petitioners' motion for summary reversal, and the court heard argument of counsel. We must initially determine whether we have jurisdiction over all of these consolidated cases. Section 307(b)(1) of the Clean Air Act, 42 U.S.C. 1857h-5(b)(1) (1970), provides that a petition for review of the Administrator's action in approving or promulgating any implementation plan "may be filed only in the United States Court of Appeals for the appropriate circuit." We agree with petitioners and with the Court of Appeals for the First Circuit, see Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 1 Cir., 465 F.2d 492 (1972), that by the phrase "the appropriate circuit" Congress did not intend that all suits involving approval of state implementation plans be brought in the judicial circuit where the state is located. Instead, Congress intended to adopt a flexible approach to determine which circuit is appropriate, and application of this approach to the facts of these cases and the legal issues we are presently called upon to decide permits us to hear all of these consolidated cases.
First, elsewhere in the Act, in a provision concerning judicial review of another kind of action by the Administrator, Congress expressly provided that judicial review shall be in the "court of appeals for the circuit which includes such State." See Section 110(f)(2), 42 U.S.C. § 1857c-5(f)(2). That it did not use the same language in Section 307(b)(1) and instead used the vague phrase "the appropriate circuit" indicates that Congress intended the latter phrase to mean something other than the more specific review provision in Section 110(f)(2). Secondly, we might note that failure to interpret Section 307(b)(1) in a flexible manner would produce some anomalous results. The Administrator has informed us that implementation plans in several metropolitan areas cover jurisdictions falling within several circuits. In our own metropolitan area of the District of Columbia and the surrounding Virginia and Maryland suburbs, for example, adoption of the Administrator's narrow interpretation of the statute would require review of the Administrator's approval of the D.C. metropolitan area implementation plans to take place in both our own court and the Court of Appeals for the Fourth Circuit. We doubt that Congress intended such a result, especially in light of the indication elsewhere in the Act of a strong congressional concern for coordinated decision-making with respect to metropolitan areas crossing over several jurisdictions. See 42 U.S.C. §§ 1857c-1, 1857c-2.
Applying this flexible approach to the cases presently before us, it is clear from the record that all of these cases raise identical legal issues. None of these issues involve facts or laws peculiar to any one jurisdiction; rather, all concern uniform determinations of nationwide effect made by the Administrator. Requiring these cases to be prosecuted in the several circuits will only lead to delay on a question where time is literally of the essence, ...