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Disimone v. Browner


For several years, Maricopa and Pima counties, which respectively include the cities of Phoenix and Tucson, Arizona, have had unacceptably high levels of carbon monoxide. The areas failed to attain air quality standards under the Clean Air Act[1] (CAA) by the statutory deadline of December 31, 1995, and EPA has reclassified the areas as “serious” nonattainment areas. In a 1990 case, Delaney v. EPA,[2] a citizen suit was brought against the Environmental Protection Agency (EPA) under the CAA, claiming that EPA failed to perform its duties in these two areas. The Ninth Circuit ordered EPA to promulgate a Federal Implementation Plan (FIP) and to disapprove the Arizona State Implementation Plan (SIP) with regard to the two counties. Later that year, Congress amended the CAA, leading EPA to request that the Ninth Circuit recall its earlier mandate set down in Delaney. The panel denied EPA’s request. However, in 1996 EPA accepted a contingency provision in the revised Arizona SIP and rescinded the FIP completely. The FIP provision required that transportation projects be delayed and that certain measures be adopted if a nonattainment area experienced violations of carbon monoxide standards.

In this case, two individuals, Barry Disimone and Donald Steuter, sued EPA for approving the SIP and withdrawing the FIP. The Ninth Circuit held that EPA’s actions were contrary to a direct court mandate and therefore were illegal. In addition, EPA was collaterally estopped from claiming that its action was required by the 1990 Amendments to the CAA. The Ninth Circuit based its decision on the “law of the case doctrine”[3] because EPA’s motion to recall mandate and amend judgment had already been denied by a panel of the court. Instead of following the mandate ordered, EPA proceeded to approve the SIP. The Ninth Circuit admitted that typically it confines the law of the case doctrine to decisions in the same case as the one in which it is applied, yet here the cases involved different petitioners. However, the court applied the doctrine because both suits were brought against the same agency, concerned the same issue, and were on behalf of the same citizen population.

The Ninth Circuit also held that EPA was precluded from claiming that its action was required by the 1990 Amendments because the same issue was already litigated and decided. First, EPA’s argument in both cases was that the pre-Amendment guidelines were inconsistent with the 1990 Amendments. Thus, the same issue was involved in both cases. Second, the court inferred that the panel must have decided against all of EPA’s arguments because such a decision was necessary to deny the motion. Therefore, the court found that the panel had decided that the 1990 Amendments did not warrant recalling EPA’s mandate. Furthermore, such a decision was critical and necessary to its order. Finally, there were no circumstances precluding application of the collateral estoppel doctrine. Therefore, the Ninth Circuit held that EPA was collaterally estopped from arguing that that the 1990 Amendments permitted it to approve a SIP in place of an FIP.

[1]Clean Air Act of 1970, 42 U.S.C. §§ 7401-7671 (1994).

[2]898 F.2d 687 (9th Cir. 1990), cert. denied, 498 U.S. 998 (1990).

[3]The “law of the case doctrine” precludes one panel of an appellate court from reconsidering questions that another panel has decided on a prior appeal in the same case. Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir. 1979).

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