Bethlehem Steel Corp. v. United States Environmental Protection Agency

SWYGERT, Senior Circuit Judge,

concurring in part and dissenting in part.

I dissent from that part of the majority opinion dismissing the claims of the Citizens for a Better Environment (“CBE”) for lack of subject matter jurisdiction because I believe its claims are cognizable in this court. Regarding the merits of CBE’s claims, I would order that the Environmental Protection Agency (“EPA”) commence federal rulemaking to promulgate a state implementation plan (“SIP”) for the State of Indiana that complies with all of the requirements of the Clean Air Act, 42 U.S.C. § 7401 et seq. (1982).

I.

In this case, CBE raises the following claims: (1) the EPA could not, as it did in the December 6,1983 order, finally approve Indiana’s revised SIP when the EPA did not find the emission reductions required by the SIP will meet the statutory requirement for. attainment of the national ambient air quality standards (“NAAQS”); (2) the EPA could not, as it did in the December 6, 1983, order exempt major sources of particulate matter from the statutory monitoring requirements of sections 110(a)(2)(F)(ii), (iii), and (iv), 42 U.S.C. § 7410(a)(2)(F)(ii), (iii), and (iv); and (3) as a result of its findings (or lack of findings) in the December 6,1983 order, the EPA has a duty pursuant to section 110(c)(1) of the Act, 42. U.S.C. § 7410(c)(1) to commence rulemaking to promulgate a SIP for Lake County, Indiana that provides for attainment of the NAAQS, that remedies the three deficiencies the EPA relied upon in disapproving several provisions of the revised SIP, and that provides for source monitoring.

The majority dismisses these claims, holding that they are cognizable, if at all, only in the district court. The majority’s rationale appears to be as follows. In *658 some circumstances a court of appeals will assume jurisdiction over a challenge to agency final action that also raises a claim that the Administrator failed to undertake a nondiscretionary duty. See Indiana & Michigan Electric Co. v. United States E.P.A., 733 F.2d 489, 490 (7th Cir.1984). In this case, however, CBE does not challenge the validity of the regulations actually approved as it seeks only to have those regulations demoted to interim regulations pending further agency action. Hence, CBE’s only challenge to the agency action is that it did not go far enough. A claim that agency action is invalid because the agency did not go as far as it was required to under the statute can only be brought, if at all, in the district court.

I disagree with this conclusion, for even if the majority is correct that CBE raises only a claim that the EPA did not go far enough,1 that claim is cognizable only in the court of appeals. Under section 307(b)(1) of the Act, the courts of appeals have exclusive jurisdiction to “review ... the Administrator’s action in approving or promulgating any implementation plan ... or any other final action of the Administrator.” 42 U.S.C. 7607(b)(1). The terms of section 307 are clear. They merely require that the petitioner be seeking review of the Administrator’s final action in approving or disapproving a plan. They do not require that the petitioner actually dispute the validity of the regulations approved or request that the court of appeals set them aside.2 Thus, under the clear language of *659 section 307, even when the sole claim is that agency action is invalid because the agency did not go far enough, that claim properly belongs in the courts of appeals. See City of Seabrook v. Costle, 659 F.2d 1371, 1372-73, reh. denied, 665 F.2d 347 (5th Cir.1981); Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654, 661 n. 4 (D.C.Cir.1975). See also D. Currie, Air Pollution § 9.10 at 9-31 (1981) (“[Allegations that the Administrator has failed to take action required by statute should not be permitted to circumvent the plain statutory command that judicial review of decisions respecting implementation plans and other regulations is to be in the courts of appeals.”).

The majority unpersuasively attempts to distinguish those cases which support the assumption of jurisdiction in this case. In City of Seabrook, 659 F.2d 1371, plaintiffs brought an action in federal district court pursuant to section 304 challenging “(1) the Administrator’s failure to promulgate Part D revisions to the Texas state implementation plan ... by July 1, 1979; [and] (2) the Administrator’s failure to notify certain persons that they had been violating the Texas SIP.” Id. at 1372-73. Subsequently, the Administrator published a “final rule” approving and conditionally approving the SIP revisions filed by Texas to comply with Part D. The court affirmed the district court’s dismissal of that action for lack of jurisdiction under section 304, reasoning that “[o]nce the Administrator had issued his ‘final rule’ on the Texas Part D revisions, plaintiffs could seek review, ..., only in the court of appeals.” Id. at 1373.

The plaintiffs in City of Seabrook argued that jurisdiction in the district court was appropriate because they were “complaining not only of what the Administrator has done, but of what he failed to do.” Id. at 1373. The court rejected this argument because, . even assuming the plaintiffs’ characterization of their claim was correct, “[t]he suggestion that the district court can order the Administrator to do things he has failed to do in the SIP approval process while the court of appeals is reviewing what the Administrator has actually done would result in an impractical piecemeal review that Congress could not have intended in sections 304 and 307.” Id. at 1373, Thus, under City of Seabrook, once the Administrator has taken final action on a revised SIP, any claim that the Administrator has failed to undertake a nondiscretionary duty in connection with that final action is only cognizable in the court of appeals. This rule clearly supports the assumption of jurisdiction in this case. See also Oljato Chapter of Navajo Tribe, 515 F.2d at 661 n. 9 (suggesting in dictum that jurisdiction could lie in the court of appeals where the claim is that “the Administrator [has] act[ed], but, in the view of the challengers, ... [did] not act far enough.”); Connecticut Fund For the Environment v. E.P.A., 672 F.2d 998, 1009 n. 4 (2d Cir.), cert. denied sub nom. Manchester Environmental Coalition v. E.P.A., 459 U.S. 1035, 103 S.Ct. 445, 74 L.Ed.2d 601 (1982) (Court of Appeals has authority to grant essentially § 304 relief to effectuate its decision that EPA final action is invalid).

National Resources Defense Council, Inc. v. U.S.E.P.A., No. 83-3027 (6th Cir. October 1, 1984) also supports the assumption of jurisdiction here. The order in that case was entered pursuant to the National Resources Defense Council’s (NRDC’s) motion to compel compliance with the Sixth Circuit’s February 15, 1984 decision. Although the majority is correct that it is unclear precisely what arguments the NRDC raised in that case, it is clear from the terms of that order that the court found, at least implicitly, that it had jurisdiction to decide whether the EPA had a duty to promulgate federal rules pursuant to § 110(c)(1)(B) when the state had failed to do so and to order the EPA to fulfill that duty. In addition that order gives the state of Michigan approximately six to seven *660 months to prepare and submit to the EPA new regulations, and it requires the EPA to promulgate federal rules pursuant to § 110(c)(1)(B) “not later than four (4) months after the date required for proposal of such rules.” Thus that case must have involved a claim similar to the one raised here — i.e., that the State had submitted a SIP, various provisions of which the EPA properly disapproved for failure to meet the statutory criteria or erroneously approved. According to the Sixth Circuit’s result, that claim was cognizable in the court of appeals and that court had the power to grant the appropriate relief, although it may have been section 304 relief.

In Oljato Chapter of the Navajo Tribe, 515 F.2d 654, the court held that a claim that the Administrator had a nondiscretionary duty to revise a performance standard was cognizable only under section 307 because it was, in effect, a challenge to the unrevised standard itself. Id. at 656. As the majority notes, one of the primary reasons underlying the Oljato decision was that the district court action was a belated attempt to challenge the Administrator’s original action in promulgating the performance standard and, as a result, in deciding whether the Administrator had a duty to promulgate new standards, the district court would have had to have reached the issue of whether the Administrator’s action in promulgating the original standard was unlawful.

That is precisely what the district court will have to do in this case should CBE decide to refile its claims in the district court. That is, in order to decide that the Administrator has a duty to promulgate federal regulations, the district court will first have to decide whether CBE is correct that the December 6, 1983 action is deficient for the reasons set forth by CBE. And this it will be unable to do since “Congress intended all review related to the continuing validity of ... [approved SIPs] to be within the exclusive scope of section 307." Oljato Chapter of Navajo Tribe, 515 F.2d at 659.

In Kamp v. Hernandez, 752 F.2d 1444 (9th Cir.1985), the Ninth Circuit assumed jurisdiction over claims very similar to those raised by CBE. In that case, the petitioner argued, inter alia, that the EPA could not finally approve Arizona’s revised SIP because it did not insure the attainment and maintenance of NAAQS because it did not contain regulations that provided for control of sulfer dioxide emissions; as a result the EPA should have promulgated a control plan for Arizona. Relying on the rationale of this court in Indiana & Michigan Electric Co., the Ninth Circuit rejected the EPA’s argument that jurisdiction over that claim properly resided in the district court.

Finally this case falls squarely within the rule announced in Indiana & Michigan Electric Co., and hence this court should assume jurisdiction. In Indiana & Michigan Electric Co. this court held that jurisdiction properly belongs in the court of appeals when the “complaint about agency inaction is embedded in a challenge to the validity of an implementation plan, id. at 490; accord Kamp, 752 F.2d at 1454, reasoning that the judge-made presumption in favor of courts of appeals review should be invoked where it is clear that no record need be developed, where the petitioner is requesting that agency action be set aside, and where otherwise “two judicial proceedings, proceeding simultaneously in different courts would be necessary for complete review of one administrative order.” Indiana & Michigan Electric Co., 733 F.2d at 491; accord Kamp, 752 F.2d at 1454.

In this case, CBE challenges the validity of the finally approved revised SIP because it fails to meet statutory guidelines and because the EPA granted monitoring exemptions which it could not do under the Act; its complaint about the validity of the plan is intertwined with its complaint that the EPA must promulgate a plan that calls for attainment and source monitoring and that remedies the three deficiencies the EPA found in the Indiana revised SIP. In addition, two judicial proceedings are necessary for review of the December 6, 1983 order. In this court, we will consider the *661 challenges brought by the steel companies, while the district court will consider CBE’s claims that the EPA has refused to undertake a non-discretionary duty3 to implement a proper SIP where none — including the 1980 approved SIP — exists.4 Moreover, although the district judge might be able to better administer the relief requested here, the Sixth Circuit has demonstrated that a court of appeals can and should issue the type of order requested here where such relief is appropriate to effectuate its decision. See National Resource Defense Council, Inc. v. U.S.E.P.A., No. 83-3027 (6th Cir. October 1, 1984).

The majority intimates that there is no possibility of piecemeal review in this case because all of CBE’s claims are cognizable, if at all, only in the district court. That suggestion is incorrect for two reasons. First, as I have already stated, CBE’s claims that the EPA could not grant final approval to this SIP because it did not provide a complete control strategy for attainment and because it erroneously permits the sources to escape self-monitoring are challenges to agency final action and hence are only cognizable under section 307. Second, even if the district court can consider all of the CBE’s claims, this court has already considered and ruled on the merits of the steel companies contentions regarding the December 6, 1983 order. It cannot be doubted therefore that this court will consider in piecemeal fashion separate but related challenges to the December 6, 1983 order. The fact that the challenges have been raised by different parties is irrelevant; it does not alter the fact that the same administrative order will be subjected to review by this panel of the court, by another district court (and perhaps not the district judge who is already familiar with the case), and by yet another panel of this court.

The majority also suggests that the fact that CBE has filed a virtually identical5 action in the district court supports its decision to dismiss this action. While it is true that bifurcated review of essentially identical claims is not favored, Oljato Chapter of the Navajo Tribe, 515 F.2d at 660, that does not mean that it is the court of appeals and not the district court that should decline to consider this action. As far as we know, the proceedings in the district court are no further along than they are in this court. A decision by this court on the merits of CBE’s claims would obviate the need for any further proceedings in the district court and any appeals from the district court’s rulings. The majority’s refusal to assume jurisdiction only defers a *662 decision that could properly be rendered today, puts the parties and the courts through the unnecessary expense of further proceedings, and needlessly expends limited judicial resources. See Florida Power & Light Co. v. Lorion, — U.S. -,-, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985). Because it is unnecessary to develop any record to decide the merits of CBE’s claims, the majority’s decision to defer to a purportedly identical action pending in the district court merely adds a layer of unnecessary legal proceedings. And to the extent that federal rulemaking overlaps with proceedings pursuant to the settlement agreement, EPA can terminate rule-making if it finds that the submitted SIPs constitute an adequate plan.

Finally, this is not a case in which a record needs to be developed to decide whether the remedy sought by CBE is either “fruitful or feasible.” Congress has already mandated that the EPA conduct this type of proceeding, and it gave the EPA six months from the date of the submission of the SIP to undertake this task. While Congress did provide for certain limited exceptions and extensions, see, e.g., 42 U.S.C. §§ 7502(a)(2), (b)(ll), none of these exceptions or extensions have been invoked. Thus any claims by EPA that the promulgation of regulations in six months is not feasible or fruitful are properly addressed to Congress, not to this or any other court. In addition, the EPA has simply failed in the rulemaking below or in this court to proffer any reason why the statutory deadlines are inapplicable or to contest CBE’s suggestion that section 110(c) contains non-discretionary duties. Indeed, it appears to concede that the duties are non-discretionary since it argues that CBE’s claims belong in the district court. Thus, even if it were open to this court to consider the “feasibility or fruitfulness” of CBE’s . requested relief, the EPA has waived these claims. The “sole task [involved in this case] is the application of the statutory language” to CBE’s claims, D. Currie, supra § 9.11 at 9-33, and this court therefore has jurisdiction over them.

II.

The majority opinion also holds that “only in extremis will we allow ourselves to become a forum of original jurisdiction.” Ante at 656. It thus suggests that even though it might properly have jurisdiction under section 307, it declines to exercise that jurisdiction because of the difficulty that the court would have in administering the remedy. I doubt that a federal court has discretion to decline to exercise jurisdiction conferred upon it by Congress merely because it is more difficult, but not impossible, see Natural Resources Defense Council, Inc., No. 83-3027 (6th Cir. October 1, 1984) for the court of apjpeals to administer the appropriate remedy, see Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 497, 91 S.Ct. 1005, 1009, 28 L.Ed.2d 256; Northern Cheyenne Tribe of Northern Cheyenne Indian Reservation v. Adsit, 668 F.2d 1080, 1081 (8th Cir.1982), rev’d on other grounds sub nom., Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 103 S.Ct. 3201, 77 L.Ed.2d 837 (1983).

But even with these reservations aside, I believe that this case clearly warrants the exercise of in extremis jurisdiction since it involves a complete abdication by the EPA of its duty to ensure that each State have a SIP in effect “as soon as practicable,” but no later than December 31, 1982. Almost three years after the congressionally mandated deadline for compliance has passed and six and one-half years after the State of Indiana submitted its first “defective” SIP, EPA has yet to take any affirmative action. The original SIP itself was submitted almost six months late, and it was not acted upon by the EPA until almost one year later. As the district judge in Citizens for a Better Environment v. Costle, 515 F.Supp. 264 (N.D.Ill.1982), observed:

Perhaps the most striking feature of this litigation is the extent to which EPA’s administrative processing of ... Indiana’s Part D SIP’s [sic] has diverged from the procedure contemplated by the Clean Air Act.

*663 The congressional plan [contained in the 1977 amendment], however, was frustrated from the outset____ Indiana [did not] submit[ ] ... [its] plan on time. The state[’s] tardiness was followed by ... continuing inaction by EPA. ******

Instead of approving or disapproving the various portions of the Indiana ... [plan] as prescribed by § 110(c), EPA has proceeded as if it were reviewing the patent-ability of patent claims.

Id. at 270. Cf. Citizens for a Better Environment v. Costle, 610 F.Supp. 106, 114 (N.D.Ill.1985) (“Despite over two years’ passage since the Act’s original deadline for attainment, and over three years’ passage since the EPA’s original decision disapproving the rule, the EPA has yet to propose alternate federal regulations, as the Act requires.”).

Moreover, despite the EPA’s apparent belief to the contrary,6 the statute does not give the EPA discretion to permit Indiana to remain in noncompliance indefinitely. As the District of Columbia Court of Appeals, see District of Columbia v. Train, 521 F.2d 971, 985 (D.C.Cir.1975); Natural Resources Defense Council, Inc. v. E.P.A., 475 F.2d 968, 970 (D.C.Cir.1973) and other courts, see Sierra Clubs v. Indiana-Kentucky Electric Corp., 716 F.2d 1145, 1153 (7th Cir.1983); Connecticut Fund for the Environment, 672 F.2d at 998; Citizens for a Better Environment v. Costle, 610 F.Supp. 106, 111 (N.D.Ill.1985) have decided, this statute imposes on the EPA a nondiscretionary duty to promulgate a proper SIP if the State fails to do so.7

The EPA’s purposeful evasion of its statutory mandate is evidenced by the fact that it has attempted to insulate its inaction from judicial review. In a virtually identical action filed in the Northern District of Illinois, Citizens for a Better Environment, 515 F.Supp. 264, the EPA moved the district court to dismiss CBE’s claim that the EPA had failed to perform its nondiscretionary duty pursuant to section 110(c)(1)(B) of the Clean Air Act, 42 U.S.C. § 7410(c)(1)(B), to promulgate regulations on the ground that the district court lacked subject matter jurisdiction. The district judge denied EPA’s motion. After the EPA had taken final action on a revised Illinois SIP, CBE sought an order from the district court, under section 304, compelling the EPA to perform its nondiscretionary duty to commence rulemaking to remedy a deficiency the EPA found in the Illinois SIP. Once again the EPA moved to dismiss CBE’s claims, arguing that jurisdiction belonged in the court of appeals because the EPA had taken final action with respect to an Illinois revised SIP. The district judge agreed. Based on the district judge’s ruling dismissing the CBE’s deci *664 sions regarding the Illinois SIP, see Citizens for a Better Environment v. Costle, No. 80-C-0003 Memorandum and Order (N.D.Ill. December 27, 1983),8 CBE filed the instant action in this court seeking review of similar claims regarding the Indiana SIP and agreed to settle its district court claims without an adjudication of the merits. The EPA then argued in this action that jurisdiction properly belongs in the district court. And no one should be surprised if somewhere along the line the EPA argues that its inaction is discretionary and therefore not subject to review at all.9 See 5 U.S.C. § 701(a)(2) (1982); Heckler v. Chaney, — U.S. -, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). See also supra note 3.

Thus, it is time for this court to intercede and to enforce the Clean Air Act as it is written, not as it has, in practice, been amended by the EPA.

III.

The EPA does not contest any of the substantive claims raised by CBE, except the one having to do with source monitoring, apparently because the terms of the statute are so clear. Thus with respect to the two uncontested claims the EPA should be ordered to immediately undertake rule-making. See 42 U.S.C. § 7410(c)(1)(B); CBE v. Costle, 515 F.Supp. at 273 (“[T]hat section demands federal rulemaking within six months of the submission of [sic] SIP if the Administrator determines that ‘the plan, or any portions thereof, ... [are not] in accordance with the requirements of ... [that] section’.”) (emphasis added).

The EPA should also be ordered to promulgate a provision requiring the owners and operators to engage in self-monitoring. Section 110(a)(2)(F) on its face is clear that the finally approved SIP must contain a provision that provides for monitoring from “stationary sources;” no stationary sources are exempt. As the EPA concedes, the legislative history provides no further guidance which might lead this court to conclude that some stationary sources are exempt.

The EPA argues that it has interpreted section 110(a)(2)(F) to require installation of monitoring equipment only by significant emissions sources for which reliable continuous monitoring technology exists. 40 C.F.R. 51.19(c) (1980), and hence it has discretion to exempt certain statutory sources from the mandatory monitoring requirements of section 110(c)(2). This argument fails for two reasons. First, those regulations specifically do not specify minimum monitoring requirements for coke oven sources, 40 C.F.R. part 51. 19, App.P. 48 Fed.Reg. at 54605 (Col. 1), nor do they exempt certain sources for monitoring. They deal only with regulations pertaining to continuous monitoring from some sources. Second, CBE only requests that this court order the EPA to promulgate rules requiring self-monitoring; it does not ask that we order the EPA to adopt any particular type of source monitoring, which of course this court cannot do. State of New York v. E.P.A., 716 F.2d 440 (7th Cir.1983).

Even if it is true that the EPA has interpreted the Act to give it discretion to exempt some sources, I would reach the same *665 result. Although it is true that a court of appeals must accord considerable difference to an agency’s interpretation of its authorizing statute Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, -, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); Peabody Coal Co. & Old Republic Insurance Co. v. Director, Office of Workers’ Compensation Programs, U.S. Dept, of Labor, 778 F.2d 358,361 (7th Cir.1985), it is not required to give deference when that interpretation directly conflicts with the clear language of the statute, in this casé the language of the Act is clear. Stationary source owners are required to engage in self-monitoring, and the EPA has no discretion to grant exemptions. Thus this court should order the EPA’s to promulgate rules to provide for source monitoring.

. In my view, CBE is challenging the validity of the regulations adopted. It claims that those regulations, as a whole, are deficient because they do not provide for attainment of the NAAQS and because they permit sources to escape their statutorily imposed duty to engage in self-monitoring.

. In deciding to dismiss CBE’s claims the majority focuses on the fact that CBE only asks this court to demote rather than to reverse the regulations adopted. The significance of this fact is unclear. On the one hand, the majority uses this fact to sustain its conclusion that CBE's only claim is that the agency did not go far enough because CBE "likes the regulations," a conclusion which, as I have said, is irrelevant. On the other hand, the majority suggests that because CBE seeks only a demotion of the regulations rather than a complete reversal of them, CBE has not requested section 307 relief and hence has not stated a claim under section 307. This suggestion which apparently stems from the remedial provisions of section 307(a)(9), which grants the , courts of appeals power to "reverse” unlawful agency action, see 42 U.S.C. § 7607(d)(9), is flawed for several reasons. First, other courts have implicitly rejected the notion that the remedial provisions of section 307(d)(9) are exclusive, see Natural Resources Defense Council, Inc. v. Costle, No. 83-3027 (6th Cir. October 1, 1984); Connecticut Fund for the Environment v. EPA, 672 F.2d 998, 1009 n. 24 (2d Cir.), cert. denied sub nom. Manchester Environmental Coalition v. E.P.A., 459 U.S. 1035, 103 S.Ct. 445, 74 L.Ed.2d 601 (1982). Even assuming, however, that section 307(d)(9) does limit the remedial powers of the courts of appeals, it is clear that a court’s inability to grant the requested relief does not deprive it of jurisdiction to hear the merits of the claim. See, e.g., Jacksonville Bulk Terminals, Inc. v. International Longshoremen’s Assc., 457 U.S. 702, 102 S.Ct. 2672, 73 L.Ed.2d 327 (1982) (Court has jurisdiction to hear section 301 claim even though it cannot grant preliminary injunction). Second, a "demotion" is in effect a reversal since the statute does not give this court the authority to alter the status of finally approved regulations. Section 402(b)(3), relied upon by CBE, does not permit this court to affirm on an interim basis an order approving and disapproving in part a state submitted SIP. That section merely provides that a SIP must contain a provision for reasonable progress toward attainment in the interim between promulgation and the statutorily mandated deadline for attainment. Thus, to enter a “demotion,” we, in effect, must first find that the agency action taken on December 6, 1983 was unlawful and that it cannot stand as final action; we then would have to reverse and remand the agency action, but stay our decision to reverse those regulations pending reconsideration by the agency.

Finally, refusing jurisdiction on the ground that CBE only requested a demotion produces the absurd result that a court of appeals would have had jurisdiction if CBE had requested this court to reverse out-right the December 6, 1983 order in its entirety because the "finally approved" regulations did not meet the statutory criteria; but because CBE has requested less extreme relief, based on the same substantive claims, this court does not have jurisdiction. The result is not only absurd, but manifestly unjust, since now CBE cannot obtain any judicial review of its substantive claims. True, CBE may be able to go to the district court to request that the EPA be ordered to commence federal rulemaking, but its claims that the EPA cannot grant final approval to a SIP when there are various deficiencies in the revised SIP and that the EPA has no discretion to exempt certain *659 sources from the monitoring requirements of the Act are foreclosed from review. See 42 U.S.C. § 7607(b)(1) (“A petition for review of the Administrator’s action ... may be filed only in the United States Courts of Appeals for the appropriate circuit.”).

. Under the majority’s approach, the district court might very well dismiss for lack of jurisdiction on the ground that the decision whether to commence federal rulemaking is discretionary and hence not subject to review in any court. Although the majority suggests that jurisdiction does belong in the district court, it backs off of this suggestion when it intimates that the EPA’s duty to commence rulemaking is discretionary. The majority’s decision not to transfer this case to the district court, pursuant to 28 U.S.C. § 1631 (1982), as CBE had requested if the court found no jurisdiction, is presumably a result of its refusal to decide whether jurisdiction does properly belong in the district court. Even if I were to agree with the majority’s dismissal of these claims, I would decide that section 110(c) imposes a non-discretionary duty on the Administrator, and I would order the case transferred to the district court to the district judge who already has great familiarity with the issues raised in this case, particularly given the EPA’s evident desire to circumvent judicial review of its failure to implement a plan for Indiana. See discussion infra at 663-64.

. It is clear that if the district court decides that section 110(c)(1), 42 U.S.C. § 7410(c)(1), imposes a non-discretionary duty, it will have to consider whether the December 6, 1983 order was deficient before it can order the EPA to act. But the district court could properly decide that it cannot consider that claim because of the exclusive jurisdictional provisions of section 307. Thus, due to the majority's failure to transfer this case, it is likely that, if CBE still can file a claim in the district court and if it still chooses to do so, this case will again come before the court of appeals from a district court’s dismissal of at least part of the action for lack of jurisdiction.

. It is unclear the extent to which the action pending in the district court raises the same claims presented in this case, particularly since CBE, in reliance on the district court’s original dismissal of its Illinois' claims on jurisdictional grounds, settled its claims regarding Indiana’s failure to promulgate an appropriate SIP.

. At oral argument, in response to a question raised by the court, EPA represented that under its view of the statute it was still required to give Indiana more time to act and it could not (or would not) tell the court just how much more time Indiana was entitled to. See also Citizens for a Better Environment v. Costle, 515 F.Supp. 264, 270 (N.D.I11.1982) ("[The EPA’s] position is that everyone should stand still until the EPA decides to act.").

. I also reject the EPA’s argument that this court should exercise its discretion to refuse to order EPA to commence rulemaking. EPA’s dilatory action threatens the public welfare by permitting the citizens of Lake County, Indiana to be subjected indefinitely to unacceptable levels of air pollution. In addition, the EPA’s assertion that Congress clearly intended the remedy of federal promulgation "to be a last resort ... after the states had been given every opportunity to come up with an acceptable SIP” is astounding in light of the clear statutory deadlines set forth in the Clean Air Act. Although it is clear that Congress intended to preserve the primary role for the states, it is equally clear that Congress had no intention of permitting the states or the EPA to erect federalist concerns as a barrier to the attainment of goals necessary to the public health and welfare. Indiana has had six and one-half years to submit a proper plan. Thus the EPA’s claim that "[u]nder CBE's approach, EPA would necessarily assume the primary role of issuing a plan for Indiana,” while perhaps true, is consistent with the Act’s requirement that states that have shown themselves to be noncompliant should be subordinated to a secondary role. Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145, 1153 (7th Cir.1983) ("[Federal rulemaking] ... is the remedy Congress foresaw for state inaction or ineffectiveness.”).

. Perhaps in part as a result of the EPA’s action in this case, the district court reconsidered its earlier ruling dismissing CBE’s claims regarding the Illinois SIP; it has now found that it has jurisdiction to consider at least some of those claims. Citizens for a Better Environment v. Costle, 610 F.Supp. 106 (N.D.I11.1985) (District court has jurisdiction over claim that EPA has duty to promulgate regulations to remedy deficiencies it found in Illinois’ implementation plan.).

. It cannot be doubted that a party has the right and indeed the duty to insure that the court has jurisdiction over the claims presented. And it is true that the jurisdictional provisions of the Clean Air Act are far from clear and hence a party cannot be faulted for seeking an adjudication of the proper limits of these provisions. But it seems apparent from the EPA’s conduct in these related cases that its main objective is not to place the claims in the proper court nor to delineate the jurisdictional bounds of sections 304 and 307, but rather to preclude (or at least delay as long as possible) judicial review of CBE’s claims.