(concurring):
Although I concur with the order of dismissal, I have great difficulty with the premise that the wording of the District of Columbia Administrative Procedure Act precludes this court from considering on its merits petitioners’ prayer for relief. In elaborating upon the definition of a “contested case” and concluding that the case before us does not fall into that category, the majority opinion overlooks two crucial sentences in Section 11 of that Act1 which, insofar as relevant, read:
. In all other cases the review by the court of administrative orders and decisions shall be in accordance with the rules of law which define the scope and limitations of review of administrative proceedings. Such rules shall include, but not be limited to, the power of the court—
(2) to compel agency action unlawfully withheld or unreasonably delayed;
Once it is conceded that petitioners have standing to sue — a concession which I suppose we are compelled to make in light of such decisions as Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970), and Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965), cert. denied, 407 U.S. 926, 92 S.Ct. 2453, 32 L.Ed.2d 813 (1972),2 which seem to hold that a person described in 5 U.S.C. § 702 “adversely affected or aggrieved”3 by agency action includes private organizations acting as self-appointed attorneys general — the real question before us is whether the inaction they complain of was “agency action unlawfully withheld or unreasonably delayed”. We cannot avoid this issue by stating that since no hearing was either held or required under the Air Pollution Act, this court lacks jurisdiction because of the restrictive definition in Section 3(8) [§ 1-1502(8)] of the local Administrative Procedure Act. As I have pointed out, the subsection upon which petitioners’ statutory cause of action is founded, rests upon an unrelated provision of that act.
Thus, I would not distinguish Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970), on the ground that such case arose under the Federal Administrative Procedure Act rather than the corresponding statute for the District, as the words in both enactments applicable to this case are identical. In each instance, the inaction of the administrative official — in the Hardin case, the Secretary of Agriculture; in this case, the Commissioner — was with respect to a matter committed solely to his discretion by the substantive statute. Nor can the cases be distinguished on the ground that in Hardin a preliminary administrative hearing had already been held.
It is well settled in this jurisdiction that a claim of unlawful or unreasonable delay establishes court jurisdiction to grant such relief as a decree requiring the agency to conduct a hearing.4
Accordingly it seems to me that we should face the issue raised by the petition. If we do so, it is plain that in the case before us, unlike Hardin, there has been no *520showing of unlawful or unreasonable delay and therefore the petition should be dismissed.
What petitioners complain of is the failure of the Commissioner to establish “procedures ... to effectively deal with an air pollution emergency” — authority conferred on him by a provision of the District of Columbia Air Pollution Act, D. C.Code 1973, § 6-813(a)(3), subject to regulations of the District Council. According to petitioners, such procedures could pave the way for drastically limiting the use of private motor cars in this jurisdiction, thus forcing commuters to avail themselves of public transportation services which, as of this date, lack facilities to handle more than an insignificant fragment of the traffic load.
As it is obvious that the only reason for the creation of the District of Columbia was to provide a place for the branches of the Federal government to operate, and equally obvious that the bulk of employees in the executive and legislative branches now rely upon privately owned automobiles to commute to their offices, any action by a District official which would disrupt this pattern and thus impede the functioning of government itself should be undertaken only under circumstances which pose direct danger to public health and safety. Such action would demand the closest judicial scrutiny.
Petitioners’ thesis is that “air pollution emergencies” occur daily in the District of Columbia and that the principal cause of these “emergencies” is automobile traffic. In explaining this thesis, petitioners point to tests at selected busy traffic intersections — taken in summer — which show that on certain days some of these sites had concentrations of “35 ppm [for carbon monoxide]” — a few as high as 50 ppm— from which samplings, they argue a degree of air pollution in the District dangerous to public health and safety.
To characterize these phenomena, as petitioners do, as constituting either an emergency or a degree of air pollution dangerous to public health is to indulge in the grossest exaggeration. What the term 50 ppm really means is 50 parts per million. To put the matter into perspective, it is not until the carbon monoxide level reaches 1200 parts per million — a figure 24 times greater than the worst air pocket cited— that it has a fatal effect upon human beings.5 Yet petitioners tell us that experts in the Environmental Protection Agency have determined that an urban level in excess of 35 ppm is contrary to the standards they propose to set under the Air Pollution Act.
Not even petitioners contend that the air pockets they have monitored in rush traffic hours are typical of ambient air conditions throughout the city. Obviously these pockets are being continuously dissipated by wind and other atmospheric changes. But in an effort to give their discoveries some ominous significance, petitioners included in the record a publication of the Environmental Health Service entitled “Air Quality Criteria for Carbon Monoxide.” This “study” replete with medical and chemical terms — to say nothing of algebraic formu-lae — is not easy reading but it unconsciously reveals the lack of any factual basis for alarm. It declares at one point that studies of human exposure to presumably dangerous monoxide levels (i. e., 35 ppm) “. . . has led to 80 percent of the equilibrium value of 5 percent COHb being approached in 4 hours, and the remaining 20 percent approached slowly over the next 8 hours.” This observation may not be intelligible to the casual reader. But if he plows on, he learns on the next page that “. . . cigarette smokers generally have a COHb with a median value of 5 percent . . . .’’In other words, stripped of pseudoscientific jargon, what the authors seem to assert is that if a nonsmoker for twelve hours breathed nothing but the kind *521of air found in one of the cited heavy traffic pockets, he would have as much carbon monoxide in his blood as the average cigarette smoker.
Whatever the truth of the legend that only “mad dogs and Englishmen go out in the noonday sun,” it would be surprising to find that any significant number of residents of this area would stand for eight hours or more on a summer day in close proximity to one of these busy intersections where petitioners have detected “dangerous” pockets of carbon monoxide. But if indeed there are some, it appears that the worst that can happen to those hardy individuals is to share momentarily the same impairment to breathing and reflex actions that already besets the millions and millions of Americans whose liking for cigarettes has not been shaken by the well advertised admonitions of the Surgeon General.
With all deference to the zeal of clean air enthusiasts, I respectfully suggest that the proper disposition of this case would be to hold that far from being “unlawful” or “unreasonable” the withholding of their requested administrative action is a commendable example of common sense on the part of the responsible municipal officials.
. D.C.Code 1973, § 1-1510.
. See also digest of cases collected in 11 A.L.R.Fed. 556 under caption “Environmental Protection Suit — Standing”.
. Identical language appears in the local A.P.A., § 1-1510.
.International Ass’n of Mach. & A. Wkrs. v. National Med. Bd., 138 U.S.App.D.C. 96, 425 F.2d 527 (1970) ; Kessler v. F.C.C., 117 U.S. App.D.C. 130, 141, 326 F.2d 673, 684 (1963) ; Harvey Radio Laboratories, Inc. v. United States, 110 U.S.App.D.C. 81, 289 F.2d 458 (1961).
. Grayson & Shepard, The Disaster Lobby: Prophets of Ecological Doom and Other Absurdities, 1973.