The opinion of the court was delivered by: RAMBO
Plaintiff, Solar Turbines, Inc. ("Solar"), filed this action February 10, 1988. Solar is the owner and operator of a gas turbine cogeneration facility currently under construction at a Caterpillar, Inc. plant in York County, Pennsylvania. The defendants are the Environmental Protection Agency ("EPA" or "the Agency") and James M. Seif, the Regional Administrator for Region III of the EPA. Solar seeks relief in the form of a declaratory judgment and a preliminary and permanent injunction. Pursuant to 28 U.S.C. § 2201, plaintiff seeks a declaration that the EPA acted outside its jurisdiction in issuing an Administrative Order directing Solar to halt construction of its power plant. In addition, Solar seeks a temporary and a permanent injunction enjoining the EPA from enforcing its administrative order and from revoking, revising or challenging plaintiff's state-issued construction permit. Solar filed a notice and motion for temporary restraining order ("TRO"), preliminary injunction and confidentiality order along with its complaint on February 10, 1988.
On February 10, 1988 the court conducted a hearing in chambers on the motion for a TRO. All parties were represented by counsel. The court heard arguments, but no witnesses testified, and no exhibits were presented.
To obtain a permit to construct a facility which will emit air pollutants, a builder must satisfy both state and federal regulations. The federal regulations are found in the Clean Air Act, 42 U.S.C. § 7401 et seq., and the state regulations for the Commonwealth of Pennsylvania are found in the Air Pollution Control Act, 35 Pa. Code, Chapter 23, which requires the builder to obtain a "plan approval," 25 Pa. Code § 127.11, from the Commonwealth of Pennsylvania Department of Environmental Resources ("PADER").
To satisfy the federal regulations, facilities such as Solar's, which will emit a regulated pollutant in excess of specified amounts, must obtain a specific permit -- Prevention of Significant Deterioration ("PSD") permit, 42 U.S.C. § 7475. In the Clean Air Act, Congress provided a procedure whereby the appropriate state environmental agencies would be given EPA approval to issue the PSD permits. 42 U.S.C. §§ 7410(a)(2)(D), 7471, implemented by 40 C.F.R. § 51 et seq. PADER received approval for its permit process in 1984.
Before commencing construction at the Caterpillar site, Solar applied to PADER for a construction permit. PADER issued a final permit to Solar on September 9, 1987. On February 1, 1988 Solar received an Administrative Order ("Order") dated January 25, 1988 issued by defendant Seif.
The Administrative Order, relying exclusively on Clean Air Act § 167, 42 U.S.C. § 7477, purports to order plaintiff immediately to cease any construction activity at its gas turbine cogeneration facility, among other things, and to certify to defendant EPA within ten days of receipt of the Administrative Order that plaintiff has complied with various prohibitions contained in that Administrative Order.
Plaintiff's Complaint at para. 15.
Solar was to comply with the Order on February 11, 1988.
The first issue which must be addressed is this court's jurisdiction. Plaintiff argues this court has jurisdiction pursuant to 28 U.S.C. § 1331, federal question. The federal question presented is whether the Clean Air Act and the United States Constitution give defendants power to issue and enforce the order sent to plaintiff. Solar also relies on 28 U.S.C. § 1337, affecting commerce. Plaintiff reasons the court has jurisdiction because Congress' authority to enact the Clean Air Act derives partly from its power under the commerce clause, U.S. Const. art. I, § 8, cl.3.
The Clean Air Act has two sections delineating federal court jurisdiction in suits filed against the EPA. 42 U.S.C. § 7604, citizens suits, gives district courts jurisdiction over actions "to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such an act or duty, as the case may be." The other section which delineates jurisdiction is 42 U.S.C. § 7607(b)(1). This section gives the circuit courts of appeal exclusive jurisdiction to review action taken by the EPA or its administrators which action involved approval or promulgation of implementation plans under ...