Petition for Writ of Certiorari — New York v. Thomas
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BILE D
FEB 83 \987
JOSEPH F. SPANIOL, JR,
No.
SrERK
IN THE
Supreme Court of the United States
OcToBER TERM, 1986
STATE OF NEW YORK, et al.,
Petitioners,
ome =
LEE M. THOMAS, Administrator, United States
Environmental Protection Agency,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
QO. PETER SHERWOOD*
Solicitor General
Perer H. SCHIFF
Deputy Solicitor
General
Davin R. Woo.ey
MICHAEL J. Moore
Assistant Attorneys
General
New York State
Department of Law
The Capitol
Albany, New York 12224
(518) 474-4819
* Counsel of Record
RoBERT ABRAMS
Attorney General of New York
JAMEs E. TIERNEY
Attorney General of Maine
JAMES M. SHANNON
Attorney General of Massachusetts
JEFFREY L. AMESTOY
Attorney General of Vermont
W. Cary Epwarps
Attorney General of New Jersey
JAMEs E. O’NEIL
Attorney General of Rhode Island
JosePH I. LiEBERMAN
Attorney General of Connecticut
STEVEN E. MERRILL
Attorney General of
New Hampshire
Howarp Fox
Attorney for private party
Petitioners Sierra Club, et al.
QUESTIONS PRESENTED
Where, upon the findings of the Environmental Protection
Agency Administrator that United States air pollution emissions
are endangering the welfare of residents of a foreign country
which has a law similar to that of the United States concerning
prevention and control of international air pollution, is the EPA
Administrator required under § 115 of the Clean Air Act to go
forward with a pollution abatement proceeding leading to pro-
mulgation of rules to reduce emissions into the air that cause
“acid rain” in the eastern United States and Canada.
Whether a court may construe the Administrative Procedure
Act in a manner that negates the mandatory nature of many
provisions of federal health and safety statutes and intrudes upon
Congressional prerogatives to direct when remedial action bv
a federal agency is required.
PARTIES TO THE PROCEEDING
THE PETITIONERS ARE:*
State of New York State of Maine
State of Vermont State of Rhode Island
State of Connecticut Commonwealth of
State of New Hampshire Massachusetts
Sierra Club State of New Jersey
National Wildlife Federation Natural Resources Defense
National Audubon Society Council, Inc.
Robert and Janet Townsend Honorable Richard Ottinger
Her Majesty the Queen in Ellen Edith Desmond
Right of Ontario Ian G. Scott, Attorney
James Bradley, Minister of General for Ontario
the Environment for Michael Vaughan
Province of Ontario
THE RESPONDENT IS:
Lee Thomas, Administrator, U.S.
Environmental Protection Agency
THE FOLLOWING WERE DEFENDANT-
INTERVENORS. BELOW:
Alabama Power Company American Public Power
Appalachian Power Assn.
Company Arkansas Power & Light
Baltimore Gas and Electric Company
Company Boston Edison Company
Central Illinois Light - Carolina Power & Light
- Company Company
Cincinatti Gas & Electric Central Hudson Gas and
Co. Electric Corporation
Cleveland Electric Central Illinois Public
Illuminating Co. Service Company
In accordance with Rule 28, petitioners state that, with the exception of
the National Wildlife Federation, none of the corporations named above
as Petitioners have parent companies, subsidiaries or affiliates, other than
wholly owned subsidiaries. The National Wildlife Federation has the
following subsidiary: Desoto Greetings, Inc.
DEFENDANT-INTERVENORS (Continued)
Commonwealth Edison
Company
Consolidated Edison Com-
pany of New York, Inc.
Delmarva Power & Light
Company
Detroit Edison Company
Florida Power Corporation
Georgia Power Company
Gulf States Utilities
Company
Illinois Power Company
Indiana & Michigan Electric
Company
Iowa-Illinois Gas and Elec-
tric Company
Kentucky Power Company
Louisiana Power & Light
Company
Mississippi Power Company
Mississippi Power & Light
Company
Montaup Electric Company
National Rural Electric
Cooperative Association
New Orleans Public Service,
Inc.
Northern Indiana Public
Service Company
Oklahoma Gas and Electric
Company
Pennsylvania Electric
Company
Pennsylvania Power
Company
Potomac Edison Company
Public Service Company of
Indiana, Inc.
Salt River Project
Central Power & Light
Company
Columbus and Southern
Ohio Electric Company
Consumers Power Company
Dayton Power and Light
Company
Duke Power Company
Edison Electric Institute
Florida Power & Light
Company
Gulf Power Company
Houston Lighting & Power
Company
Indianapolis Power & Light
Company
Iowa Public Service
Company
Kansas City Power and
Light Company
Kentucky Utilities Company
Madison Gas and Eleciric
Company
Monogahela Power
Company
New England Power
Company
Northern Indiana Public
Service Company
Ohio Power Company
Ohio Valley Electric
Corporation
Pennsylvania Power & Light
Co.
Potomac Electric Power
Company
Public Service Co. of
Oklahoma
iv
DEFENDANT-INTERVENORS (Continued)
South West Electric Power Public Service Electric and
Company Gas Company
Texas Utilities Electric Southern California Edison
Company Company
Tucson Electric Power Toledo Edison Company
Company Union Electric Company
Virginia Electric and Power West Penn Power Company
Company West Texas Utilities
Wisconsin Electric Power Company
Company Wisconsin Power and Light
Wisconsin Public Service Company
Corporation
National Coal Association
Commonwealth of Kentucky
State of Ohio
State of West Virginia
TABLE OF CONTENTS
QUESTIONS PRESENTED ...................
PARTIES TO THE PROCEEDING ............
yy) F Ze My \ipy 6 yy. Fe
ek oe lv iene cecleus scat
DEED nen dc cccksccvoens pee Neth es
STATUTES INVOLVED.......... SP yrs
STATEMENT OF THE CASE .................
A. The Statutory Scheme....................
B. The International “Harm” and “Reciprocity”
PC rracchCdscsndknteadaasiatexhs
C. EPA Inaction and Court Decisions Below .. .
REASONS FOR GRANTING THE WRIT.......
I. CERTIORARI SHOULD BE GRANTED
TO ASSURE IMPLEMENTATION OF
CONGRESSIONALLY MANDATED
REQUIREMENTS AIMED AT
REMEDYING THE MOST SERIOUS AIR
POLLUTION PROBLEM IN THE
NORTHEASTERN UNITED STATES AND
REE A er re ree
Il. REVIEW BY THIS COURT IS NEEDED
TO PREVENT THE JUDICIARY FROM
OVERRIDING CONGRESSIONAL
COMMANDS WHICH DIRECT WHEN
REMEDIAL ACTION BY AN
ADMINISTRATIVE AGENCY IS
SE kee. eves sas
~]
13
A. The Administrative Procedure Act
Provides No Basis For Eliminating The
Mandatory Nature Of Clean Air Act
B. The Court of Appeals Decision Threatens
the Effectiveness of Many Remedial
ot. sp cdeheekes eres snes sks
ES i sneak cand banes ses seustewad
APPENDIX
A. Court of Appeals Decision.................
B. District Court Decision ...................
Appendix A to District Court Opinion-
Correspondence of the Administrator to
the Secretary of State...................
Appendix B to District Court Opinion-
Correspondence of the Administrator to
the Senator from Maine ................
C. Order of the District Court................
D. Judgment Order of Court of Appeals
reversing lower court ..........-.----.++5-
E. Order of Court of Appeals denying rehearing
UMIIORD noc ccc cscesscceeTbscsscccscesccn
F. International Air Pollution Section of the
Clean Air Act, 42 U.S.C. § 7415...........
G. Citizen Suit Section of the Clean Air Act, 42
6 ccveceusnnseveuapescureds
H. Administrative Procedure Act, Section 4, 42
3 SA Sray
Page
14
A-42
A-44
A-47
A-48
A-49
A-50
TABLE OF AUTHORITIES
CASES:
Bill Johnson’s Restaurant v. National Labor
Relations Board, 461 U.S. 731 (1982)..........
Detroit Trust Co. v. The Thomas Barlum, 293
2 FR Se ere
Dickerson v. New Banner Institute, Inc., 460 U.S.
FER en Pn en ee
Ewing v. Mytinger and Casselberry, Inc., 339
U.S. 504 (1950) ........... ET Re rey
Fedorenko v. U.S., 449 U.S. 490, 513 (1981) .....
Inland Empire District Council v. Mills, 325 U.S.
PE Se oan Luo Ogee yes
Lawrence Typographical Union v. McCulloch, 349
foe Fe eS errr reer
Morton v. Mancari, 417 U.S. 535 (1974).........
Motor Vehicle Manufacturers v. State Farm, 463
FE a ne an
National Asphalt Paving Association v. Train, 539
fog fs | ray
Opp Cotton Mills, Inc. v. Administrator, 312 U.S.
MN esos Saul eededans cedducneiabancs
Ruckelshaus v. Monsanto, 467 U.S. 986 (1984)....
State of New York v. Thomas, 613 F. Supp. 1472
Ne SEE oS cas ne 9042652 nde ve dkaed so
Thomas v. State of New York, 802 F.2d 1443
er ee or re .
Page
16
19
19
16
19
16-17
\7
19
18
15, 16
viii
Page
United States v. Baltimore and Ohio R. Co., 225
kt: eran: erongy Wr suet arr 19
Vermont Yankee v. Natural Resources Defense
Council, 435 U.S. 519 (1978) ................ 16
Watt v. Alaska, 451 U.S. 259 (1981)............ 19
STATUTES:
Administrative Procedure Act
fe lee FS er rer rere rT ey Tye re 2
ee I kc vk aos can cease ewieeesanees 3, 15
Bis Som FD errr es rrr. re 18
Clean Air Act
iP eee Fe eer rerrr err rec T. 2
es Eo Ss ek caved eee eek 20
gk ee re errr rere 20
OR OBA S ree Oe Ge eek xaciss esas knees 3, 20
U.S. 9 T400 OO) GD OR). . oc a ccd seeiass 3, 4
We UB. © FORD Ge Og 5 5 vanes has saanaces 4
Oe Sas ee ok 85 ee 3
2 US.C. 69400 We) UD) oo is vce es. 4
42 U.S.C. § 7411 ......
aus 47st ....::
42 U.S.C. § 7415 ......
42 U.S.C. § 7415 (a) ...
42 U.S.C. § 7415 (b) ...
42 U.S.C. § 7415 (c) ...
42 U.S.C. § 7426 ......
42 U.S.C. § 7457 ......
42 U.S.C. § 7541 ......
42 U.S.C. § 7571 (a) (2)
42 U.S.C. § 7602 (h) ...
42 U.S.C. § 7604 ......
ix
26 6 © @ eA. SG. 241854) BUC SC BS. Se Oe
ae ae ae Se at Ge al ee ee i et a
or ar an me be Gk ce OM OK Oe ee
wae. 2 on oe te ee A oe oe yO ON fg fe
“i ve oe on oe a ae ee ee Oe Oe es a Yay Te ae
ore 6.5 4 22 6 O76-2.8 6.2 2 8 6 4.6
ae ee ie a oo oe ke oe ee oe ee ee ee
45 U.8.C. § 7007 @ GO) @.... «6c...
42 U.S.C. § 7607 (d) (3)
Clean Water Act
it a ©. 2 oe we ee le oe me ey me ie Pe yt ee
33 U.S.C. § 1288 (b) (4) (D) (i) ...-..- 002 -e-
$4 U.S.C. 1311.) GIA)... 6.6 ee ss
33 U.S.C. § 1313 (a) (1)
33 U.S.C. § 1313 (a) (2)
“a ay te) a ae ae ee ee ee ee ee Se
Lee eg >
33 U.S.C. § 1313 (c) (3)
.-é.4 toe 8!ie a2 4 0 a ee O°R 4 GO 8 8.6
2,3
x
Page
(Bik Rome ye: - ga 2 errr rrr err aa 21
so U.S.C. § 1399 (a) (1) @) © ...«..-...5.:. 21
(Ea rae peer meets fa 21
me ee. © Bie Oe OR) CR) ook ees cece ss 21
ese NE hc be hve ba caw niedee ey 21
pik See: ¢ 9 Tare rrr worry 21
ee ee ee OD ons hak ea nina teu enee 21
ee ee 6 be occ Akane an vawwens 21
oe eo | errr rrr rs 21
Food and Drug Act
ee Se EE IN esis oa aa eves sna eeaeeeens 21
ht Soh oY OE) | reer erererrrr sy Tee 21
Resource Conservation and Recovery Act
43 U.S.C. § GOGl () G) (iv)... . 0. cee 21
gk ete 0 UF errs een 21
gk Se ae TO rer Prey sewer rors 21
RF mS Preyer a 21
ee oe | | nr rrr es 21
a
xi
Page
ee eee 21
Safe Drinking Water Act
ESS 21
RO eee. 21
ee ees ee tm) (A) (Gs)... ......«..... 21
I 21
ne 21
eee 21
ee 21
EE 21
Surface Mining and Reclamation Act ;
EE 21
gs os wee eee eee 21
Toxic Substances Control Act
OO 21
a) 21
wee Oe a)... ......... ae 21
15 U.S.C. § 2604 (e) (2) (A) (i) ...........6-. 21
xii
gk Eom fk. Seer rp errs Tor Pr rT
ge Se | ey errr a ree tee ere
Judicial Code
Oe Ws SR EE oh ha he
An Act to Amend The Clean Air Act, Canadian
House of Commons Bill C-51, lst Session, 32nd
Parliament, 29 Eliza. II, 1980 ...............
MISCELLANEOUS:
Acid Deposition: Current Knowledge and Policy
Options, App. I: State of the Science .........
App. II: Evaluation of Options ......
App. III: Anticipated Environmental
Results: An Assessment of Control
Options (“U.S.E.P.A. Acid
Deposition Task Force”) ..........
Acid Rain and Transported Air Pollutants, U.S.
Congress Office of Technology Assessment
Ny sah a hs eka ee Sloe ee ets eee
Administrative Procedure Act, Legislative History,
79th Cong. 2nd Sess., 1944-1946, Senate
og I re rs eee
Atmosphere-Biosphere Interactions: Toward a
Better Understanding of the Ecological
Consequences of Fossil Fuel Combustion,
National Research Council/National Academy
On Reema, Ieee Ce) ee eee dias
Attorney General’s Manual on the Administrative
PR FON os vse eck s eee Ee
9, 10
10
15, 17
8, 9,
10, 11
16
xiii
Page
MISCELLANEOUS (continued):
U.S.E.P.A., Environmental News, “EPA
Administrator Believes Canadian Acid Rain
Problem May Warrant Action in U.S.”........ 8
Inter Agency Task Force on Acid Precipitation,
Annual Report to the President and Congress . . 10
\
“Joint Report of the Special Envoys on Acid Rain” 6, 11, 12
Memorandum on the Canadian Clean Air Act
and the Canadian Acid Rain Control Program . 9
Proceedings of the Acid Rain Conference,
Springfield, VA., April 8-9, 1980 (“OAQPS”) .. 8, 9, 10
Seventh Annual Report, Great Lakes Water
Quality, International Joint Commission (1980)
‘tp eee Ceres ep eer poet ere ee 8,9
Report of the National Commission on Air
Quality To Breathe Clean Air, 1981 (“NCAQ”) 8, 9, 10
Final Report U.S./Canada Memorandum of
Intent, Atmospheric Sciences and Analysis
ME I Se VGA ON eceeui na se ca a8 10
In Che
Supreme Court of the United States
OcToBER TERM, 1986
No.
STATE OF NEW YORK, et al.,
Petitioners,
_—Y,
LEE M. THOMAS, Administrator,
United States Environmental Protection Agency,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petitioners, who are eight states, the Province of Ontario’,
four national public interest groups, and United States and
Canadian citizens, respectfully pray that a writ of certiorari
issue to review the judgment and opinion of the United States
Court of Appeals for the District of Columbia Circuit entered
in the above-entitled proceeding on September 18, 1986.
OPINION BELOW
The Court of Appeals reversed a District Court decision in
petitioners’ favor. Thomas v. State of New York, 802 F.2d 1443
' The Province of Ontario is filing a separate Petition for Writ of Certiorari
in the name of the Ontario officials who participated in this case in their of-
ficial capacities as: Her Majesty the Queen in Right of Ontario, Ian G. Scott,
Q.C., Attorney General for Ontario, and James Bradley, Minister of the En-
vironment of the Province of Ontario.
(D.C. Cir. 1986). The District Court had granted plaintiff/ peti-
tioners’ summary judgment motion for declaratory and in-
junctive relief, and ordered the Administrator of the U.S. En-
vironmental Protection Agency to issue notices to states under
§ 115 of the Clean Air Act. State of New York v. Thomas, 613
F. Supp. 1472 (D.D.C. 1985); 42 U.S.C. § 7415. The issuance
of such notices, after the requisite rule making procedures,
would have been the next step in a process leading to reduc-
tion in air pollution emissions that cause an international air
pollution problem commonly known as acid rain. The Court
of Appeals and District Court decisions are reprinted as Appen-
dix A and B, respectively.
JURISDICTION
The Judgment Order of the United States Court of Appeal
for the D.C. Circuit was entered on September 18, 1986. A time-
ly petition for rehearing was denied on November 24, 1986. This
Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTES INVOLVED
This case involves provisions of the federal Clean Air Act and
the Administrative Procedure Act (“APA”). 42 U.S.C. § 7401
et seq.; 5 U.S.C. § 501 et seq. The International Air Pollution
Abatement section of the Clean Air Act (§ 115, 42 U.S.C.
§ 7415) states:
Whenever the Administrator . . . has reason to believe
that any air . . . pollutants emitted in the United States
cause or contribute to air pollution which may
reasonably be anticipated to endanger public health
or welfare in a foreign country . . . the Administrator
shall give formal notification thereof to the governor
of the state in which such emissions originate.
The notice of the Administrator shall be deemed to
be a finding . . . which requires a. . . revision [of
the states’ air pollution control plan]. . . to prevent
or eliminate the endangerment. . .
This section shall only apply to a foreign country
which the Administrator determines has given the
United States essentially the same rights . . . as is given
that country by this section.
The case was commenced in the District Court under the “citizen
suit” provision of the Clean Air Act (§ 304) 42 U.S.C. § 7604.
[A]ny person may commence a civil action . . . against
the Administrator where there is alleged a failure of
the Administrator to perform any act or duty under
this Act which is not discretionary . . . The district
courts shall have jurisdiction . . . to order the Ad-
ministrator to perform such act or duty...
The APA states in part:
After notice required by this section, the agency shall
give interested persons an opportunity to participate
in the rule making through submission of written
data, views or arguments...
5 U.S.C. § 553. These sections of the APA and the Clean Air Act
are set forth in full in the Appendix to this Petition at A-48 to A-51.
STATEMENT OF THE CASE
A. The Statutory Scheme
In 1977 Congress enacted amendments to the federal Clean
Air Act which, as relevant here, strengthened and streamlined
provisions for abatement of international air pollution. Section
115 of the Act establishes a multi-step process leading to the
issuance of formal notices to states causing international air
pollution. 42 U.S.C. § 7415. The issuance of those notices trig-
gers separate rulemaking proceedings under § 110 of the Act,
involving such revisions of the individual states’ air pollution
control plans as are necessary to “prevent or eliminate the
endangerment” to the neighboring nation. 42 U.S.C.
§§ 7410(a)(2), 7410(a)(2)(H), 7410(c).
‘ The § 115 process is initiated when the Environmental Pro-
tection Agency Administrator (“EPA”) makes two factual find-
ings. These findings are: that the Administrator has reason to
believe that United States air pollutant emissions endanger
public health or welfare in another nation (“harm finding”)’;
and that the nation suffering the harm has given the United
States essentially the same rights with respect to the prevention
or control of air pollution as is given to that country by § 115
(“reciprocity finding”). 42 U.S.C. §§ 7415(a), (c). Section 115
states that once the Administrator makes these findings, he
“shall” issue § 115 notices to the states whose emissions are caus-
ing harm to the other nation. The effect of the notice is to
obligate those states to revise their air pollution control plans
in a manner that prevents or eliminates the endangerment to
the other nation. 42 U.S.C. 7415(b).
Under EPA practice, statutory “notices” to the states would not
issue until after EPA published them in proposed form for public
comment. See, Joint Appendix submitted to the U.S. Court of Ap-
peals at page 257 (hereinafter “J.A. ___.”). At that stage EPA would
take public comment on “each step in its reasoning and analysis”
in developing the proposed § 115 notices to the states. J.A.257.
This would encompass an opportunity to comment on the initial
finding of harm from U.S. emissions, the determination of reciproci-
ty, the identification of responsible states, and the proposed alloca-
tion of emission reductions among those states. Id.
Subsequent to the EPA’s issuance of § 115 notices, the named
states must revise their air pollution control plans, and after
public hearings, submit the revisions to EPA for approval. 42
U.S.C. §§ 7410(a)(3), 7410(a)(2)(H). EPA’s practice would then
be to propose to approve or disapprove in the Federal Register
the state plan revisions and finalize its decision after consider-
ing public comments. If a state refuses to submit an adequate
plan, then EPA shall promulgate a plan for the state, after
holding a public hearing. 42 U.S.C. §§ 7410(c)(1),
7607 (d)(1)(B), 7607(d)(3).
* The “harm finding” must be based in part upon the Administrator's receipt
of reports, surveys or studies from a duly constituted international agency.
42 U.S.C. § 7415(a).
Only when EPA approves a state’s plan, or promulgates its
own for the state, would any individual air pollution source be
subject to emission reduction requirements.
Section 304 of the Clean Air Act empowers the federal district
courts to issue orders compelling the Administrator to perform any
non-discretionary duty imposed by the Act. 42 U.S.C. § 7604.
B. The International “Harm” and “Reciprocity”
Findings
On December 17, 1980, the Canadian Parliament enacted
a law similar to § 115 that provides protection to the United
States from Canadian air pollution sources.* On January 18,
1981, the EPA Administrator issued an official determination
that emissions of sulfur dioxide and nitrogen oxides from the
United States were endangering public welfare in Canada by
causing a phenomenon known as acid rain.*
I have concluded that . . . acid deposition is endanger-
ing public welfare in the U.S. and Canada and that
U.S. and Canadian sources contribute to the problem
not only in the country where they are located but
also in the neighboring country.‘
He also determined that the Canadian law afforded the United
States essentially the same rights with respect to Canadian pollu-
tion as § 115 gives to Canada. These findings were supported
* House of Commons Bill C-51, An Act to Amend the Clean Air Act, Ist
Session, 32nd Parliament, 29 Eliz. Il, 1980.
* This determination is contained in correspondence to the U.S. Secretary
of State, and a United States Senator from Maine. This correspondence is at-
tached to the District Court opinion, supra, 613 F. Supp. at 1488, and is
reproduced in the Appendix to this petition at A-24 to A-31. They also ap-
pear in the record below at J.A. 30-33, 44-49.
* A-46; J.A. 32.
by a report of the International Joint Commission and the Ad-
ministrator’s own detailed description of the problem of acid
rain and the provisions of the reciprocal Canadian law.°
The current EPA Administrator, in October, 1985, reaffirmed
that the Canadian law meets the “reciprocity” requirement,’
and he has not rescinded the “harm” finding. In fact, in March
of 1986 the President of the United States seemingly reaffirmed
the “harm” finding when he “fully” endorsed a Joint Report
prepared by Special Envoys from the U.S. and Canada. The
President’s statement and the Envoys’ Joint Report each
recognized that “acid rain is a serious environmental problem
in both the United States and Canada with transboundary im-
plications for both countries.”*
C. EPA Inaction and Court Decisions Below
Despite these acknowledgements of the international harm
caused by U.S. emissions, the EPA Administrator has failed to
issue proposed or final § 115 notices. After serving notice of in-
tent to sue as required by statute, the petitioners filed a federal
court action against the Administrator alleging that the mak-
ing of the threshold factual findings of “harm” and “reciproci-
ty” established a nondiscretionary duty on the part of the Ad-
ministrator to proceed with the abatement process under § 115.
The District Court had jurisdiction under 42 U.S.C. § 7604.
In July, 1985 the United States District Court granted peti-
tioners’ motion for summary judgment and ordered the EPA
Administrator to issue § 115 notices, within nine months, to
those states whose emissions cause acid rain in Canada. In post-
judgment motion papers EPA requested additional time to issue
* A-41 to A-46, A-48 to A-56; J.A. 34-43, 30-32, 45-49.
’ J.A. 482.
* White House Press Release, March 19, 1986, submitted as addendum “C”
to Brief for Intervenor/Appellees Province of Ontario. The Envoys’ Report
was submitted to the Court of Appeals as Attachment “A” to EPA's brief.
Portions of the Envoys’ Report are quoted at pages 11, 12, infra.
the § 115 notices and announced a schedule by which it would
solicit public comment on proposed § 115 notices and all aspects
of its supporting reasoning and analysis. J.A. 257. The motion
for additional time was denied, but the District Court later
granted a stay of its order pending appeal.
The U.S. Court of Appeals reversed. Accepting an argument
not raised by the federal agency, it held that the threshold
“harm” and “reciprocity” findings were “rules”, and that they
had not been subject to a notice-and-comment opportunity as
required by the Administrative Procedure Act. The Court
ordered the plaintiffs’ complaint to be dismissed because of
defendant's failure to take public comment prior to making the
findings. The Court of Appeals did not discuss the fact that a
later opportunity for comment on the threshold findings was
scheduled to occur prior to issuance of § 115 notices. Instead,
the court found that a failure to afford a separate APA notice-
and-comment opportunity prior to the issuance of the § 115
threshold findings cuts off judicial power to compel any fur-
ther action by the agency under § 115.
REASONS FOR GRANTING THE WRIT
I.
CERTIORARI SHOULD BE GRANTED TO ASSURE
IMPLEMENTATION OF CONGRESSIONALLY
MANDATED REQUIREMENTS AIMED AT REME.-
DYING THE MOST SERIOUS AIR POLLUTION
PROBLEM IN THE NORTHEASTERN UNITED
STATES AND CANADA
The viability of a Congressional requirement for abatement
of international air pollution is at stake in this case. The out-
come will dramatically affect the health of fisheries, forests and
human populations in large areas of eastern Canada and the
northeastern United States. The subject matter of this case is
the international and interstate problem of acid rain.
naan
Acid rain is a popular term for a broad range of related
damages caused by the emission and deposition of certain air
pollutants.® Scientific and governmental authorities, including
the International Joint Commission, the National Academy of
Sciences, the National Commission on Air Quality and the En-
vironmental Protection Agency have made detailed findings on
the causes and effects of acid rain. This body of scientific
evidence, summarized below, is consistent with EPA Ad-
ministrator Costle’s 1981 finding that U.S. emissions are harm-
ing public welfare in Canada.
Huge quantities of sulfur dioxide and nitrogen oxide are emit-
ted into the air from fossil fuel combustion in electric power
plants, and industrial boilers.'* These emissions are transported
long distances, often across state and national borders." In this
regard, the EPA Administrator in 1981 found:
* International Joint Commission (hereinafter referred to as “IJC”), Seventh
Annual Report, Great Lakes Water Quality, p. 4a (1981) (J.A. 37).
Committee on the Atmosphere and Biosphere, National Research Coun-
cil/National Academy of Sciences (hereinafter referred to as “NAS”),
Atmosphere — Biosphere Interactions: Toward a Better Understanding of the
Ecological Consequences of Fossil Fuel Combustion, at 2 (1981) (J.A. 82).
Letter from EPA Administrator Douglas M. Costle to Senator George
Mitchell (hereinafter referred to as “§ 115 Findings”)(Jan. 13, 1981)(discussing
how the prerequisites of 115 have been» :t)(A-46 to A-57; J.A. 45).
EPA Office of Air Quality Planning and Standards (hereinafter referred
to as “OAQPS”) Proceedings of the Acid Rain Conference Springfield, Va.,
April 8-9, 1980, “Remarks of the Administrator” p.4 (Aug. 1980)(J.A. 59).
© IJC, supra, note 9 at 49 (J.A. 37); NAS, supra, note 9 at 2 (J.A. 82);
OAQPS, supra, note 9 at 6 (J.A. 61); National Commission on Air Quality
(hereinafter referred to as “NCAQ”), To Breathe Clean Air (March, 1981)(J.A.
75); U.S.E.P.A. Acid Deposition Task Force, Acid Deposition: Current
Knowledge and Policy Options, App. II: Evaluation of Options at 2-12, (1983)
(J.A. 332-342) (Hereinafter “U.S.E.P.A. Acid Deposition Task Force”).
"U.S. Environmental Protection Agency (hereinafter referred to as “EPA”),
Environmental News, “EPA Administrator Believes Canadian Acid Rain Prob-
lem May Warrant Action in U.S.” (Jan. 16, 1981) (J.A. 53); OAQPS, supra
note 9 at 6 (J.A. 61); U.S.E.P.A. Acid Deposition Tak Force, supra note 10,
App. I: State of the Science at 10, (1983), (J.A. 289-292).
Thus we can say with some certainty that emission
sources in the U.S. contribute significantly to the at-
mospheric loadings over some sensitive areas in
Canada...”
While airborne these pollutants are oxidized into acidic forms."
When deposited in rain or snow, or as dust, they acidify water
bodies, killing fish directly, and disrupting wildlife food chains."
As Administrator Costle stated:
What we know or suspect about acid deposition in-
dicates that *he problem is genuine and serious: acid
deposition can and has destroyed lake and stream
ecosystems, killing fish and other water life; many
lakes in Canada and the United States are already
acidified and their fish populations are shrinking or
extinct; . . . the water and soils over extensive areas
in North America are susceptible to acidifica-
om «<7
Acid deposition also accelerates corrosion of water pipes, stone
and metal building materials, consumer goods and historic
monuments and architecture.'* It acidifies soils and leaches
% § 115 Findings, supra, note 9 at 2 (J.A. 45).
' IJC, supra, note 9 at 49-50 (J.A. 37-38); NCAQ, supra, note 10 at 71-72
(J.A. 73-74); NAS, supra, note 9 at 2-3 (J.A. 82-83).
'* NAS, supra, note 9 at 2-3 (J.A. 82-83); NCAQ, supra, note 10 at 71 (J.A.
73); OAQPS, supra, note 9 at 4 (J.A. 59); Memorandum on the Canadian
Clean Air Act and the Canadian Acid Rain Control Program, State of New
York, et al. v. Ruckelshaus, (No. 84-0853)(1984) (J.A.188-189); U.S.E.P.A.
Acid Deposition Task Force “State of the Science”, supra, note 11 at 1-6 (J.A.
280-285); EPA Acid Depusition Task Force, supra note 10, App III: An-
ticipated Environmental Results: An Assessment of Control Options at 2-9
(1983) (J.A. 411-418).
'* § 115 Findings, supra, note 9 at 2 (J.A.45).
'* § 115 Findings, supra, note 9 at 2 (J.A.45); NAS, supra, note 9 at 3 (J.A.
83); NCAQ, supra, note 10 at 71 (J.A.73); OAQPS, supra, note 9 at 5 (J.A.60).
10
vital minerals and nutrients from them.'’ These compounds,
alone or in combination with other pollutants, are believed to
cause dieback or growth decline of trees. '* While still in the air
these compounds severely degrade visibil*ty and are associated
with respiratory disease, particularly in children.’ These
damages occur primarily in eastern Canada and the northeastern
United States, which are located downwind from jurisdictions
where the bulk of the offending emissions originate.”
Respected scientific authorities have been emphatic about the
severity of the problem and the need for abatement action. In
1981 a Committee of the National Academy of Sciences stated
that evidence linking power plant emissions to acid rain was
“overwhelming”, that thousands of lakes in Europe and North
America have already been affected and that the number is ex-
pected to double by 1990. After recounting the damages caused
to human health, crops and building materials it concluded that
continued emissions of sulfur and nitrogen oxides at
current or accelerated rates, in the face of clear
' § 115 Findings, supra, note 9 at 2 (J.A. 45); NAS, supra, note 9 at 2 (J.A.
82); NCAQ, supra, note 10 at 71 (J.A.73); OAQPS, supra, note 9 at 5 (J.A. 60).
‘* Interagency Task Force on Acid Precipitation, Annual Report 1983 to the
President and Congress, (J.A. 206); § 115 Findings, supra, note 9 at 2, (J.A.
45).
'’* NCAQ, supra, note 10 at 72 (J.A.74); NAS, supra, note 9 at 2 (J.A. 82);
U.S.E.P.A. Acid Deposition Task Force, supra, note 14 at 24 (J.A. 433); U.S.
Congress, Office of Technology Assessment “Acid Rain And Transported Air
Pollutants”, p. 47, Washington, D.C., June, 1984 (OTA-0-204) (estimating
50,000 premature deaths per year from acid rain pollutants).
» Final Report U.S./Canada Memorandum of Intent, Atmospheric Sciences
and Analysis Work Group 2 (A bilateral work group, which along with several
other work groups, was established by the U.S. and Canada in order to “pro-
vide a suitable and scientific foundation” for a bilateral agreement on trans-
boundary air pollution), Nov. 1982 (J.A. 152); U.S.E.P.A. Acid Deposition
Task Force, supra, note 11 at 11-13 (J.A. 290-292).
1]
evidence of serious hazard to human health and to
the biosphere, will be extremely risky from a long term
economic standpoint as well as from the standpoint
of biosphere protection.
NAS at 3, J.A. 83.
The International Joint Commission in 1980 recommended
that the governments of Canada and the U.S. “[u]ndertake fur-
ther actions to reduce atmospheric emissions of the oxides of
sulfur and nitrogen from existing as well as new sources,”
because of the “significance . . . of the acid rain problem to
the Great Lakes basin ecosystem.”
The 1986 Report of the Special Envoys appointed by the U.S.
President and Canadian Prime Minister confirmed that:
There is no question that acid rain is a serious trans-
boundary problem shared by both the U.S. and
Canada. Emission sources in both countries contribute
to acid deposition in both countries.
The Report concluded:
[I]t is very clear that there is a solid link between emis-
sions and acid deposition . . . The areas of highest
acid deposition coincide with or are downwind and
to the northeast of areas of highest emissions.
The President and Prime Minister endorsed the Special Envoys’
recommendation that both countries should:
review their existing air pollution programs and
legislation to identify opportunities, consistent with
existing law, for addressing environmental concerns
related to transboundary pollution.
Appendum A, Brief for Appellant EPA at 45.
12
Section 115 of the Act establishes a regulatory mechanism to
address the full range of harm to “public health” and “welfare”
inflicted upon a neighboring nation by United States air pollu-
tion emissions. Acid rain is undoubtedly the most serious inter-
national air pollution problem ever faced by Canada and the
United States,”! and its effects clearly fall within the range of
air pollution damages encompassed by the Clean Air Act’s com-
mand for elimination of endangerment to public “welfare” in
another nation. 42 U.S.C. §§ 7415(a)(b), 7602(h).”
If the Court of Appeals had not reversed, EPA would now
be preparing proposed notices to the states under § 115. Final
notices would have required the states and EPA to develop emis-
sion reduction plans to eliminate harm to Canada from U.S.
emissions. Such emission reductions would undoubtedly also
reduce acid rain in the northeastern United States.
The impacts of the Court of Appeals decision on the statutory
scheme and upon the environment of eastern North America
are sufficiently important to justify review by this Court.
1 The Special Envoys’ Report described acid rain as “the most serious” of
all environmental problems associated with long range transport of air
pollutants between the U.S. and Canada, and that the problem had been
recognized by the leaders of both countries, as a “serious concern affecting
bilateral relations.” Appendix A to Brief for Appellant EPA at 1.
" “These kinds of impacts are within the range of impacts covered
by § 115. As you know, that Section is broadly drafted to encom-
pass all forms of air pollution-related endangerment to public
health or welfare and is not limited to interference with U.S. air
quality standards or significant deterioration programs. . .’
Statement of Administrator Costle to Senator Mitchell, A-49, J.A. 45.
13
Il.
REVIEW BY THIS COURT IS NEEDED TO
PREVENT THE JUDICIARY FROM OVERRIDING
CONGRESSIONAL COMMANDS WHICH DIRECT
WHEN REMEDIAL ACTION BY AN ADMI.-
NISTRATIVE AGENCY IS REQUIRED.
The Court of Appeals decision eliminates the non-
discretionary aspect of an important international pollution
abatement program established by Congress. This result was
achieved through a novel application of the Administrative Pro-
cedure Act’s (“APA”) informal rulemaking requirements.
The Court of Appeals added a procedural prerequisite to
the statutory scheme which is not required by either the Clean
Air Act or the APA. This procedural step does not further the
public participation goals of the APA, because it is redundant
to the notice-and-comment procedure adopted by the agency.
It does not further the goals of the Clean Air Act because it
allows EPA to halt a mandatory pollution abatement program
under § 115 of the Act. Contrary to the intent of Congress, a
recognized international pollution problem will not be cor-
rected, unless this Court reverses. Petitioners ask this Court to
reinstate the District Court order, which served the purposes
of both statutes.
This Court’s review is especially important because the Court
of Appeals has created a precedent which threatens to excuse
agency non-compliance with congressional commands for ac-
tion in a variety of remedial statutes, including several sections
of the Clean Air Act. The lower courts should be advised to avoid
imposing procedural requirements which drastically alter agency
obligations under a remedial statute.
14
A. The Administrative Procedure Act Provides No
Basis For Eliminating The Mandatory Nature Of
Clean Air Act § 115.
In § 115 of the Clean Air Act Congress forged a tight linkage
between a finding of harm to the public and the EPA’s duty
to. abate that harm. The statute imposes an expressly non-
discretionary duty upon the Administrator to begin a process
leading to air pollution emission reductions in the United States
once he has officially recognized that those emissions are
harming public health or welfare in another nation. 42 U.S.C.
§ 7415(a). The receipt of appropriate international reports
and a finding of reciprocity in the affected nation’s laws
are the only other prerequisites to this non-discretionary duty.
The Congress sought to ensure EPA’s performance of this and
other obligations by establishing broad “citizen suit” rights,
through which courts were empowered to order EPA to “per-
form any act or duty . . . which is not discretionary.” 42 U.S.C.
§ 7604.
The Court of Appeals decision alters the statute in a funda-
mental way. It determined that the findings of harm and
reciprocity do not trigger a non-discretionary duty unless they
are preceded by a notice-and-comment opportunity pursuant
to the rulemaking requirements of the APA. Thomas v. State
of New York, supra, 802 F.2d at 1446, 1448. Asa result, EPA
is now authorized to acknowledge officially the harm to another
nation from U.S. emissions and the reciprocal nature of that
country’s law — but take no steps to abate that harm. This is
not what Congress intended. The Court of Appeals has broken
the statutory link between the acknowledgment of harm and
the duty to abate. In short, the “shall” language of § 115, and
the citizen’s right to enforce it, have been eviscerated by the
judicial insertion of a new discretionary procedural step into
the statutory scheme. Although the language of § 115 leaves
EPA no choice but to proceed with the abatement program once
the § 115 findings are made, the Court of Appeals has given
EPA complete discretion to take no action on the findings.
Thomas v. State of New York, supra, 802 F.2d at 1448.
15
The Court’s reasoning in support of this result was that, if
the § 115 findings bound subsequent administrators to issue air
pollution abatement notices to the states, then the APA requires
that they be subjected to a separate notice-and-comment pro-
ceeding. Since there had been no prior opportunity for public
comment on the findings, the Court of Appeals declared them
to be void. The two major errors in this reasoning are that: the
APA and the Clean Air Act do not require a separate notice-
and-comment opportunity on decisions to initiate rulemaking;
and, the court was wrong to conclude that EPA was bound to
follow the 1981 § 115 findings.
First, the Clean Air Act does not specify how the § 115
“harm” and “reciprocity” findings are to be made, nor when
public participation on the findings is to occur. Similarly, the
APA does not dictate any particular timing for a public notice-
and-comment opportunity on threshold findings which are
merely an initial step toward rulemaking. The Court of Ap-
peals failed to recognize that the § 115 findings constituted only
a decision to initiate rulemaking. It overlooked the fact that
the public would have an opportunity to comment on the find-
ings later in the proceeding. Nothing in the APA or case law
suggests that Congress intended agencies to hold a notice-and-
comment proceeding on such preliminary decisions.
Nor is there any indication that two or more comment op-
portunities must occur within a single rulemaking proceeding.
National Asphalt Paving Assn. v. Train, 539 F2d 775, 778, n.
2 (D.C. Cir. 1976). The APA only guarantees that affected par-
ties will have “an” opportunity to be heard by the agency before
rulemaking is completed and substantive obligations are imposed
on the public. 5 U.S.C. § 553." Beyond this, the timing for
* Administrative Procedure Act, Legislative History, 79th Cong. 2nd Sess.,
1944-1946, Senate document No. 248, U.S. Government Printing Office 1946,
pages: 224 (statement of Attorney General of the United States on Revised
Committee Print of October 5, 1945, describing purpose of rulemaking pro-
visions as providing the public with “an opportunity to express its views”);
(Footnote Continued)
16
public participation within the rulemaking process is left to the
discretion of the agencies upon whom Congress has imposed
the responsibility for judgments and action. Vermont Yankee
v. NRDC, 435 U.S. 519, 524 (1978). The courts have no role
in specifying what methods must be used in finding facts or
reaching conclusions on law or policy within a statutory scheme.
Bill Johnson’s Restaurant v. National Labor Relations Board,
461 U.S. 731, 755 (1982), (Brennan, J. concurring). If Congress
did not impose a requirement for a public comment opportunity
on decisions to initiate rulemaking, then courts may not do so,
especially where the effect is to “seriously interfere with” or
“disrupt the statutory scheme” chosen by Congress. Vermont
Yankee v. NRDC, supra, 435 U.S. at 547, 548.
In a multi-step rulemaking such as this, the language and pur-
poses of the APA are satisfied so long as affected parties have
an opportunity to comment on the threshold finding at the next
step in the process — in this case when EPA issues proposed
§ 115 notices listing the states which must reduce emissions and
by how much. J.A. 257. Taking comments at this stage is “the
most sensible course” since the comments and data relevant to
the threshold findings are likely to overlap substantially with
those underlying the proposed § 115 notices. National Asphalt
Paving Assn. v. Train, supra 539 F.2d at 779 n. 2.
This Court has repeatedly held that the Due Process clause
of the Constitution does not require a separate hearing on
preliminary agency decisions which commence adjudicatory
proceedings. Ewing v. Mytinger and Casselberry, Inc. , 339 U.S.
594, 598 (1950); Inland Empire District Council v. Mills, 325
251 (statement from House Report No. 1980, 79th Cong. 2nd Sess, describ-
ing the APA as requiring notice-and-comment opportunity to occur before
issuance of “general regulations”); 353 (statement of Representative Walter
that the purpose of the APA is to provide “an opportunity” for comments in
rulemaking). See also, Attorney General’s Manual on the Administrative Pro-
cedure Act, United States Department of Justice, 1947, p. 26 (“an
opportunity”).
17
U.S. 697, 710 (1945); Opp Cotton Mills, Inc., v. Administrator,
312 U.S. 126, 152-153 (1940). Cf., Lawrence Typographical
Union v. McCulloch, 349 F.2d 704, 709-710 and n. 6 (D.C.
Cir. 1965) (suggesting that due process does not require a prior
hearing for “an administrative decision to commence pro-
ceedings.”) There is no reason to believe that Congress intended
a different principle to apply to commencement of rulemaking
under the APA. Indeed, the legislative history suggests that it
did not.”
The Court of Appeals’ second error was its incorrect assump-
tion that EPA was irrevocably bound to follow the 1981 § 115
findings. The effect of the § 115 findings on subsequent EPA
Administrators seems to have been of particular concern to the
court.* In fact, the only effect of the § 115 findings and the
District Court order was to compel EPA to go forward with
a pollution abatement proceeding and conclude it by either is-
suing the § 115 notices or revoking the threshold findings. The
District Court’s order preserved the authority of the EPA Ad-
ministrator to depart from the findings of his predecessor and
to halt remedial action if he decides to revoke the threshold find-
ings. The District Court even provided EPA with a post-
judgment opportunity to reconsider the continued validity of
the “reciprocity” finding on which EPA had expressed some
* See, Legislative History, Administrative Procedure Act, supra at 373 (state-
ment of Rep. Gwynne describing the APA as “an attempt to bring into the
practice of these bureaus and tribunals those principles of due process that
we understand and that have been enforced by the courts.”
* Five times in a three page opinion the court referred to the change in ad-
ministrations and the supposed binding effect of the “harm” and “reciproci-
ty” findings on subsequent EPA Administrators. Thomas v. State of New York,
supra, 802 F.2d at 1445, 1446 (col. 2), 1447 (col 1).
18
doubt. A-58. The new administration later expressly reaffirm-
ed the “reciprocity” finding and made statements consistent with
the “harm” finding.”
Similarly, neither the past or current EPA Administrators
perceived that the 1981 findings were written in stone. Each
presumed that there would be a later comment stage at which
the public could inform the agency of any errors it made in the
threshold findings. J.A. 49, 257, 482-483. It is undisputed that
at any time prior to or after the receipt of these public com-
ments, EPA could determine that “harm” or “reciprocity” do
not exist, and thus decide not to issue the notices to the states.
All of the above would occur before any private interests are
affected.?” Thus EPA was not bound irrevocably to follow the
§ 115 findings and the Court of Appeals’ reason for imposing
the additional notice-and-comment step is not applicable to the
circumstances of this case.
* See page 6, supra. The District Court order is consistent with the result
in Motor Vehicle Manufacturers v. State Farm, 463 U.S. 29 (1982). There
the Court's power was exercised in a way that preserved the executive branch's
power to change its mind about factual predicates to regulatory action, but :
also preserved the legislative mandate by requiring that a regulatory process
not be derailed unless there was an adequate basis and explanation articulated
for the change in regulatory direction by the administrative agency. Id. 34,
42, 43. See also, concurring opinion of Justice Rehnquist, 463 U.S. at 59 (“The
agency's changed view . . . seems to be related to the election of a new Presi-
dent of a different political party . . . A change in Administration . . . is a
perfectly reasonable basis for an executive agency's reappraisal . . . of its
programs and regulations . . . As long as the agency remains within the bounds
established by Congress it is entitled to assess administrative records and
evaluate priorities in light of the philosophy of the administration . . . Of
course, a new Administration may not refuse to enforce laws of which it does
not approve or to ignore statutory standards in carrying out its regulatory
functions.)
* If a Writ of Certiorari is granted, petitioners reserve the option to make
an additional argument. Petitioners assert, in the alternative, that the § 115
findings are exempt from notice-and-comment as “general statements of
policy.” 5 U.S.C. § 553(b)(A).
The APA was not created to interfere with or alter the
substantive requirements of remedial statutes. As noted above,
the imposition of additional procedural requirements drastically
alters § 115 by eliminating its mandatory element. This result
should have been avoided. The Courts:
are not at liberty to imply a condition which is op-
posed to the explicit terms of the statute . . . To [so]
hold . . . is not to construe the Act but to amend it.
Fedorenko v. U.S., 449 U.S. 490, 513 (1981) (quoting, Detroit
Trust Co. v. The Thomas Barlum, 293 U.S. 21, 38 [1934]). The
duty of the courts is:
not to destroy the law but to enforce it, and in doing
so to seek to discover the intention of the law maker,
the wrong intended to be prevented and the remedy
designed to be afforded by the enactment of the
statute.
U.S. v. Baltimore and Ohio R.R. Co., 225 U.S. 306, 324 (1911),
Accord, Dickerson v. New Banner Institute, Inc., 460 U.S. 103,
118 (1983).
Here the intention of Congress in § 115 is clear. The findings
of “harm” and “reciprocity” are meant to trigger a non-
discretionary duty to begin a proceeding to abate international
air pollution. The Court of Appeals imposed a discretionary pro-
cedural step which is contrary to that intent. In so doing, it
destroyed the remedy which Congress designed to prevent harm
to the public. The result is incorrect because in construing two
statutes it is the duty of the court to determine and effectuate
the underlying purposes of both. Morton v. Mancari, 417 U.S.
535, 551 (1974). When two statutes are capable of a harmonious
construction, absent a clearly expressed Congressional inten-
tion to the contrary, the courts must regard each as effective,
and preserve their sense and purpose. Ruckelshaus v. Monsan-
to Company, 467 U.S. 986, 1018 (1984); Watt v. Alaska, 451
U.S. 259, 267 (1981) (Powell, J. concurring).
20
Here, the Court could easily have harmonized the purposes
of both statutes by determining that a comment opportunity
on the threshold factual findings at a later stage in the overall
rulemaking was sufficient. If the court was unsatisfied with
EPA's assurances that it would provide such an opportunity,
the court could have required EPA to take public comment on
the findings, before issuing the final § 115 notices. These alter-
natives would avoid breaking the statutory linkage between the
finding of harm and the mandatory duty to abate.
This Court’s attention is needed to prevent the establishment
of a precedent that the Administrative Procedure Act may be
applied in a manner that voids the nondiscretionary nature of
a substantive remedial statute. The effect upon the purposes
of a substantive statute must be considered before adopting an
interpretation of the APA which would impose additional pro-
cedural steps upon a regulatory process. The courts should be
advised to avoid such a result particularly where, as here, the
procedural step involved is merely redundant to that which
would have been later afforded without judicial intervention.
B. The Court of Appeals Decision Threatens the Ef-
fectiveness of Many Remedial Statutes.
The use of threshold factual findings to trigger nondiscre-
tionary duties to commence rulemaking is a standard remedial
device employed in many federal statutes. Several of EPA’s cen-
tral pollution abatement obligations under the Clean Air Act
are triggered in this way. The mandatory duties to establish
national ambient air quality standards and state remedial plans
to achieve them are triggered by certain factual findings of the
Administrator.” Similarly, nondiscretionary duties to establish
hazardous air pollutant standards, new source performance stan-
dards, interstate air pollution abatement requirements, regula-
tions to protect the stratosphere, regulation of motor vehicle
* 42 U.S.C. §§ 7408, 7409, 7410 (a) (2).
21
emissions, and aircraft emission standards are all triggered by
threshold factual findings regarding harm to the public.”
Similar triggering mechanisms are found in the Clean Water
Act™, the Resource Conservation and Recovery Act,” The Toxic
Substances Control Act,” the Safe Drinking Water Act,” the
Food and Drug Act,” and other remedial statutes.“ The
Congressional commands in each of these laws are severely
undercut if plaintiffs in a citizen suit may be prevented from
compelling an agency to proceed with mandatory duties because
the agency has neglected to undertake a separate notice-and-
comment proceeding on threshold factual findings.
If Congress had intended that federal agencies could so easi-
ly avoid such nondiscretionary duties, it would not have writ-
ten strongly worded “citizen suit” provisions into most of these
statutes.” These provisions were patterned after the Clean
* 420U.S.C. §§ 7412, 7411, 7426, 7457, 7541, 7571 (a) (2).
* 33 U.S.C. 1288(b)(4)(D)(i); 1311(b)(2)(A); 1313(a)(1); 1313(a)(2);
1313(a)(3)(C); 1313(c)(3); 1313(d)(2); 1319(a)(1)(2)(3); 1320; 1322(f)(4)(A);
1328(b); 1341(a)(2): 1342(c)(3); 1344(i).
* 42 U.S.C. § 6921(b)(3)(iv); 6925(c)(d); 6926(c); 6933(b); 6947(a).
™ 15 U.S.C. § 2603(a); 2603(c)(4)(B); 2603(f); 2604(e)(2)(A)(i); 2604(f).
" 42 U.S.C. § W0g-3(a); 300g-3(d); 300g-4(a)(1)(G); 300g-5(d)(2);
300h-1(c); 300h-2(a); 300h-3(e).
* 21 U.S.C. § 351(b), 454(c)(1).
* E.g., Surface Mining Control and Reclamation Act, 30 U.S.C: § 1271.
* Toxic Substances Control Act § 20, 15 U.S.C. § 2619 (1982); Surface Min-
ing Control and Reclamation Act § 520, 30 U.S.C. § 1270 (1982); Clean Water
Act § 505, 33 U.S.C. § 1365 (1982); Safe Drinking Water Act § 1449, 42
U.S.C. § 300j-8 (1982); Resource Conservation and Recovery Act § 7002, 42
U.S.C. § 6972 (1982).
22
Air Act’s citizen suit provision. Generally, they allow any per-
son to commence an action against a federal agency which has
failed to perform any act or duty which is “not discretionary,”
and empower the District Court to order the agency to perform
such act or duty. 42 U.S.C. § 7604 (Clean Air-Act). The Court
of Appeals decision, therefore, threatens not only the “shall”
language in many federal remedial statutes, but also the pur-
poses behind the citizen-initiated enforcement mechanisms
established by Congress to ensure that its commands would be
carried out.
CONCLUSION
For these reasons petitioners pray that a Writ of Certiorari
issue to review the decision of the U. S. Court of Appeals.
Dated: February 20, 1987
Respectfully submitted,
ROBERT ABRAMS
Attorney General of the State
of New York
O. PETER SHERWOOD
Solicitor General
PETER H. SCHIFF
Deputy Solicitor General
DAVID R. WOOLEY
MICHAEL J. MOORE
Assistant Attorneys General
New York State Department of Law
The Capitol
Albany, New York 12224
(518) 474-4819
JAMES M. SHANNON
Attorney General of the
Commonwealth of Massachusetts
23
JANET McCABE
LEE BRECKENRIDGE
Assistant Attorneys General
Commonwealth of Massachusetts
One Ashburton Place, 19th Floor
Boston, Massachusetts 02108
(617) 727-2265
JAMES E. TIERNEY
Attorney General of the State of Maine
GREGORY W. SAMPLE
Assistant Attorney General
State of Maine
Office of the Attorney General
State House, Station 6
Augusta, Maine 04333
(207) 289-3661
JEFFREY L. AMESTOY
Attorney General of the State of
Vermont
J. WALLACE MALLEY, JR.
Assistant Attorney General
State of Vermont
Office of the Attorney General
109 State Street
Montpelier, Vermont 05602
(802) 828-3171
JAMES E. O’NEIL
Attorney General of the State
of Rhode Island
GARY POWERS
Special Assistant Attorney General
State of Rhode Island
Office of the Attorney General
72 Pine Street
Providence, Rhode Island 02903
(401) 274-4400
24
JOSEPH I. LIEBERMAN
Attorney General of the State
of Connecticut
ROBERT WHITEHEAD
Assistant Attorney General
State of Connecticut
State Office Building, Rm. 147
Hartford, Connecticut 06106
(203) 566-7213
~ STEVEN MERRILL
Attorney General of the State
of New Hampshire
DANA BISBEE
Assistant Attorney General
Environmental Protection
Division
State of New Hampshire
State House Annex
25 Capitol Street
Concord, New Hampshire 03301
(603) 271-3679
W. CARY EDWARDS
Attorney General of the State
of New Jersey
PAUL SCHNEIDER
Deputy Attorney General
Office of the Attorney General
Richard J. Hughes Justice Complex
(CN-112)
Trenton, New Jersey 08625
(609) 984-5612
25
HOWARD FOX
Attorney for Petitioners
Sierra Club
Natural Resources Defense
Council-
National Audubon Society
National Wildlife Federation
Honorable Richard Ottinger
Robert & Janet Townsend
Ellen Edith Desmond
Sierra Club Legal Defense Fund
1516 P Street, NW, Suite 300
Washington, DC 20005
(202) 667-4500
APPENDIX
A-l
APPENDIX A
OPINION OF THE UNITED STATES COURT OF APPEALS
Lee M. THOMAS, Administrator, United States Environmental
Protection Agency, and Alabama Power Company, et al.,
Appellants,
Vv.
STATE OF NEW YORK, et al
(Two Cases).
Lee M. THOMAS, Administrator, United States Environmental
Protection Agency, and National Coal Association, Appellants,
Vv.
STATE OF NEW YORK, et al.
Lee M. THOMAS, Administrator, United States Environmental
Protection Agency, and Commonwealth of Kentucky, Appellants,
Vv.
STATE OF NEW YORK, et al.
Lee M. THOMAS, Administrator, United States Environmental
Protection Agency, and State of Ohio, Appellants,
v.
STATE OF NEW YORK, et al.
Nos. 85-5970, 85-5972, 85-5994, 85-6113 and 85-6114
United States Court of Appeals, District of Columbia Circuit.
Argued May 15, 1986
Decided Sept. 18, 1986.
A-2
Before MIKVA and SCALIA, Circuit Judges, and WRIGHT,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SCALIA.
SCALIA, Circuit Judge:
On January 13, 1981, Douglas M. Costle, at that time Ad-
ministrator of the Environmental Protection Agency, sent a let-
ter to then Secretary of State Edmund S. Muskie in which he
concluded that “acid deposition is endangering public welfare
in the U.S. and Canada and . . . U.S. and Canadian sources
contribute to the problem not only in the country where they
are located but also in the neighboring country.” This appeal
requires us to decide whether, under § 115 of the Clean Air Act,
42 U.S.C. § 7415 (1982), Administrator Costle’s letter legally
obligated his successors to identify the states in which pollution
responsible for acid deposition originates and to order those states
to abate the emissions.
I
Subsection (a) of § 115 of the Clean Air Act, as amended by
the Clean Air Act Amendments of 1977, Pub.L. No. 95-95, 91
Stat. 685, 710 (codified at 42 U.S.C. § 7415(a) (1982)) provides:
Whenever the [EPA] Administrator, upon receipt
of reports, surveys or studies from any duly constituted
international agency has reason to believe that any air
pollutant or pollutants emitted in the United States
cause or contribute to air pollution which may
reasonably be anticipated to endanger public health
or welfare in a foreign country . . . the Administrator
shall give formal notification thereof to the Governor
of the State in which such emissions originate.
Subsection (b) provides that the “formal notification” issued under
subsection (a) shall operate to force each state to revise as much
of its state implementation plan (SIP) as is “inadequate
A-3
to prevent or eliminate the endangerment referred to in subsec-
tion (a).” (SIP’s impose controls upon individual polluters within
each state sufficient to ensure that national ambient air quality
standards are met.) Finally, subsection (c) makes subsections (a)
and (b) applicable only if the endangered foreign country is one
“which the Administrator determines has given the United States
essentially the same rights with respect to the prevention and
control of air pollution occurring in that country as is given that
country by this section.”
On January 13, 1981, only days before President Reagan took
office, outgoing EPA Administrator Costle wrote to then
Secretary of State Muskie to express his belief that pollution emit-
ted in the United States was at least partially responsible for acid
deposition endangering public welfare in Canada. Acid
deposition-often referred to as “acid rain”-is believed to occur
when certain pollutants are transported through the atmosphere
and chemically altered by atmospheric processes before being
deposited in either dry or wet form. Administrator Costle based
his “endangerment” find*1g on a report issued by the Interna-
tional Joint Commission, concededly a “duly constituted inter-
national agency” for purpose of § 7415(a). In his letter, Ad-
ministrator Costle also concluded that newly enacted legislation
authorized the Canadian government to provide the United States
with essentially the same rights as the United States affords
Canada under the Clean Air Act, although he recognized that
this “reciprocity” finding “could be changed should the U.S. con-
clude that future Canadian actions interpreting or implemen-
ting their legislation were not giving essentially the same rights
to the U.S.” Administrator Costle sent a similar letter to Senator
George Mitchell of Maine and announced his findings in a press
release. No advance notice of Administrator Costle’s actions was
given, no comments were solicited, and neither the letter nor
the findings were published in the Federal Register.
Administrator Costle’s successors at the EPA did not regard
his actions as sufficient to trigger any mandatory action under
§ 7415. Consequently, several eastern states, national en-
vironmental groups, American citizens who own property in
A-4
eastern Canada, and a Congressman sued the EPA in the United
States District Court for the District of Columbia pursuant to
the Clean Air Act’s “citizen suit” provision, 42 U.S.C.
§ 7604(a)(2), which provides that “any person may commence
a civil action on his own behalf . . . against the Administrator
where there is alleged a failure of the Administrator to perform
any act or duty under this [Act] which is not discretionary with
the Administrator.” The plaintiffs argued that the Costle letters
imposed upon the current EPA Administrator a duty to identify
the states responsible for acid deposition and to issue SIP revi-
sion notices to them.
The District Court agreed. New York v. Thomas, 613 F.Supp.
1472, 1481-86 (D.D.C. 1985). The court was not troubled by
the EPA’s argument that identifying which states to notify would
be time consuming, costly and perhaps impossible; the Court
simply stated that “the obligation to identify the polluting states
is incidental to giving formal notification.” Id. at 1484 n.*.
Likewise, the Court was untroubled that Administrator Costle
made his findings in private correspondence, without notice op-
portunity for comment, or publication in the Federal Register.
The Court remarked that the EPA frequently uses correspondence
to take “formal action” under the Clean Air Act, id. at 1484 n.**,
and stated that publication of the Costle findings in the Federal
Register “would be inappropriate for this kind of action because
it is not a rule or policy statement,” id. at 1484. The court ordered
the EPA to reassess Administrator Costle’s “reciprocity” finding
and, if it remained accurate, to issue SIP revision notices within
180 days thereafter. On October 22, 1985, the current EPA Ad-
ministrator found that reciprocity continues to exist between the
United States and Canada. The District Court then stayed its
order to permit the EPA to bring this appeal. We have jurisdic-
tion under 28 U.S.C. § 1291 (1982).
A-5
II
This case involves an unusual statute executed in an unexpected
manner. On its face, § 7415 requires an EPA Administrator who
has reason to believe in the existence of an international air pollu-
tion problem to issue SIP revision notices to “the Governor” of
“the State” responsible for it. In the context of a complex, multi-
source pollution problem like acid deposition, identification of
the problem does not necessarily bring with it identification of
the blame-worthy states. Had the statute been executed as Con-
gress probably anticipated, the present suit would not have arisen.
Notice of the “endangerment” and “reciprocity” findings would
have been issued at the same time as the proposed SIP revision
notices, comment would have been taken on both, and both
would have been published in final form in the Federal Register.
Cf. National Asphalt Pavement Ass'n v. Train, 539 F.2d 775,
778 (D.C. Cir. 1976) (“National Asphalt”) (finding that particular
category of stationary source was “significant contributor” to air
pollution issued simultaneously with proposed standards of per-
formance whose issuance was triggered by such finding). Because
Administrator Costle chose to issue the “endangerment” and
“reciprocity” findings before attempting to identify the culpable
states, however, we must determine appellants’ claim that the
findings legally bind the current Administrator to issue SIP
notices. We conclude that, whatever the impact of Administrator
Costle’s letter, in cannot serve as a basis for judicial relief.
Section 551(4) of the Administrative Procedure Act (“APA”),
5 U.S.C. § 551(4) (1982), defines “rule” as “the whole or a part
of an agency statement of general or particular applicability and
future effect designed to implement, interpret, or prescribe law
or policy.” Clearly, an agency statement that bound subsequent
EPA Administrators to issue SIP revision notices would be a state-
ment of “future effect designed to implement . . . law or policy”*
* Both appellants and appellees labor under the misconception that the classifica-
tion of an agency statement as a rule depends upon whether it subsiantially
affects the interests of private parties. While language in past decisions of this
(footnote continued)
A-6
and thus a rule. It requires notice-and-comment procedures,
therefore, unless it comes within one of the APA’s exceptions for
“interpretative rules, general statements of policy, or rules of
agency organization, procedure or practice.” 5 U.S.C.
§ 553(b)(A). The statement in the present case is none of these.
The findings of “endangerment” and “reciprocity” are not an in-
terpretative rule because they are not a “statement interpreting
an existing statement or rule,” Batterton v. Marshall, 648 F.2d
694, 705 (D.C. Cir. 1980); see also Cabais v. Egger, 690 F.2d
234, 237-38 (D.C. Cir. 1983); Guardian Federal Savings & Loan
Ass'n v. FSLIC, 589 F.2d 658, 664 (D.C. Cir. 1978) (“Guardian
Federal”); Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C.
Cir. 1952). They are not a “general statement of policy” for (on
the assumption that they bind subsequent Administrators to ac-
tion) they do more than express, without the “force of law,” the
EPA's “tentative intentions for the future.” Pacific Gas & Elec-
tric Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974). They are
not a rule of “agency organization, procedure, or practice”
because they “go[] beyond formality,” Pickus v. Board of Parole,
507 F.2d 1107, 1113 (D.C. Cir. 1974), and “jeopardize{]” Bat-
terton, 648 F.2d at 708, or “substantially affect,” National Ass'n
of Home Health Agencies v. Schweiker, 690 F.2d 932, 950 (D.C.
Cir. 1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1193, 75
L.Ed.2d 438 (1983), the rights and interests of private parties.
court is somewhat misleading on the point, see Environmental Defense Fund,
Inc. v. Gorsuch, 713 F.2d 802, 814-15 (D.C. Cir. 1983); Environmental Defense
Fund, Inc. v. Costle, 636 F.2d 1229, 1254-55 (D.C. Cir. 1980), other deci-
sions, see e.g., Batterton v. Marshall, 648 F.2d 694, 704-08 (D.C. Cir. 1980);
Department of Labor v. Kast Metals Corp., 744 F.2d 1145, 1150 & n. 5 (Sth
Cir. 1984), and the APA itself make clear that the impact of an agency state-
ment upon private parties is relevant only to whether it is the sort of rule that
is a rule of procedure, see National Ass'n of Home Health Agencies v. Schweiker,
690 F.2d 932, 949 (D.C. Cir. 1982), cert. denied, 459 U.S. 1205, 103 S.Ct.
1193, 75 L.Ed.2d 438 (1983), or a general statement of policy, see Cabais v.
Egger, 690 F.2d 234, 237 (D.C. Cir. 1982), and thus does not require notice
and comment, not to whether it is a rule at all. Indeed, the APA expressly in-
cludes within the definition of rule “an agency statement . . . describing the
organization . . . of an agency”-a statement that can rarely if ever have effect
outside the agency itself. 5 U.S.C. § 551(4).
A-7
The fact that it is not yet certain which particular states will
receive SIP notices as a result of the findings and which particular
dischargers within those states will suffer injury, may be rele-
vant to the question of when legal challenge to the findings would
be ripe, but does not convert them into a mere general state-
ment of policy or a procedural rule. We conclude that if Ad-
ministrator Costle’s findings left the EPA no alternative but to
issue SIP notices ultimately causing the termination or restric-
tion of the operations of many utilities and manufacturers-if they
forced the EPA to take direct and substantial regulatory actions-
they could not be promulgated without notice-and-comment
procedures.
Confirmation of this view is contained in National Asphalt,
which held that an EPA Clean Air Act determination similar
to the findings involved here was a rule that required notice-
and- comment procedures. At issue in that case was the designa-
tion of a particular industry for inclusion on the list of stationary
sources which “may contribute significantly to air pollution which
causes or contributes to the endangerment of public health or
welfare.” 42 U.S.C. § 1857c-6(b)(1)(A) (1970). Within 120 days
after such designation, the Administrator was obligated to publish
proposed standards of performance for members of that industry.
42 U.S.C. § 1857c-6(b)(1)(B). We held that notice and comment
was required on the designation. National Asphalt, 539 F.2d at
779 n. 2.
Appellees urge that a contrary result is demanded by En-
vironmental Defense Fund, Inc. v. Costle, 636 F.2d 1229,
1254-56 (D.C. Cir. 1980) (“Costle”), which held that a settle-
ment modification requiring the EPA to take certain investigatory
actions was not a rule. Castle, however, like the cases upon which
it relied, rests upon “a classification-of investigative acts-that is
set apart from either adjudication or rulemaking.” Guardian
Federal, 589 F.2d at 663. No similar “investigative acts” are at
issue in this case.
We need not address appellants’ remaining arguments to the
point that, even if the Costle findings had been published only
A-8
after notice and comment, they would nevertheless be insuffi-
cient to support the present suit. It suffices to say that, because
the findings were issued without notice and comment, they can-
not be the basis for the judicial relief appellees seek. How and
when the agency chooses to proceed to the stage of notification
triggered by the findings is within the agency’s discretion and
not subject to judicial compulsion.
ses 82 @ & &
We reverse and remand to the District Court with instruc-
tions to dismiss.
So ordered.
A-9
APPENDIX B
OPINION OF THE UNITED STATES DISTRICT COURT
STATE OF NEW YORK, et al.,
Plaintiffs,
ve
LEE M. THOMAS, et al.,
Defendants.
Civ. A. No. 84-0853
UNITED STATES DISTRICT COURT,
DISTRICT OF COLUMBIA.
July 26, 1985.
MEMORANDUM OPINION
NORMA HOLLOWAY JOHNSON, District Judge.
Before the Court are a motion for summary judgment filed
by plaintiffs and motions for summary judgment and to dismiss
filed by defendant and defendant-intervenors in this action to
compel the Administrator of Environmental Protection Agency
(EPA) to perform certain duties under the Clean Air Act, 42
U.S.C. § 7401 et seq. (1977). Plaintiffs are six states, four en-
vironmental associations, and four individuals who seek to
alleviate damage occurring in eastern Canada allegedly caused
by the international movement of harmful pollutants originating
in the midwestern United States. Defendant is the Administrator
of EPA and is sued in his capacity as such. The National Coal
Association and several industrial power companies were granted
leave to intervene in these proceedings and filed briefs in sup-
port of defendant’s motion to dismiss and for summary judgment.
Plaintiffs seek an order compelling the Administrator to require
emitting states to revise their State Implementation Plans (SIP’s),
A-10
as mandated under section 115 of the Clean Air Act, 42 U.S.C.
§ 7415, in order to abate the damage allegedly traceable to the
transboundary air pollution.
I. FACTUAL BACKGROUND
This action has its origin in a letter written during the final
days of the Carter Administration from Douglas M. Costle, then
Administrator of the EPA, to former Secretary of State Edmund
Muskie (Appendix A). This letter, dated January 13, 1981, con-
cluded in part that “acid deposition is endangering public welfare
in the U.S. and Canada and. . . U.S. and Canadian sources
contribute to the problem not only in the country where they
are located but also in the neighboring country.” Costle stated
in the letter that his conclusion was based on a report issued by
the International Joint Commission. Additionally, in his letter,
Costle analyzed legislative provisions similar to section 115 passed
by the Canadian Legislature on December 17, 1980, and con-
cluded that these provisions afforded the United States essentially
the same rights as Canada was given under United States law.
Costle reiterated and expanded upon his conclusions in a letter
sent to Senator George Mitchell (Appendix B) on January 13,
1981, and issued his findings in a press release dated January
16, 1981. Plaintiffs contend that the determinations made by Cos-
tle were sufficient to invoke section 115 of the Clean Air Act
which, plaintiffs urge, sets in motion a process culminating in
revision of SIP’s by polluting states. No Administrator, however,
has issued formal notification to the governor of any state from
which such emissions originate, as would be required by the
statute. Indeed, former Administrators Gorsuch and Ruckelshaus
have stated their belief that Costle’s actions were insufficient to
invoke section 115. Whether section 115 applies in this case-and,
if so, its effect-is at controversy in the present action.
Section 115 provides in pertinent part:
(a) Whenever the Administrator, upon ruceipt of reports,
surveys or studies from any duly constituted international
agency has reason to believe that any air pollutant or
A-11
pollutants emitted in the United States cause or contribute
to air pollution which may reasonably be anticipated to
endanger public health or welfare in a foreign country or
whenever the Secretary of State requests him to do so with
respect to such pollution which the Secretary of State
alleges is of such a nature, the Administrator shall give for-
mal notification thereof to the Governor of the State in
which such emissions originate.
(b) The notice of the Administrator shall be deemed to be a
finding under section 7410(a)(2)(H)(ii) of this title which
requires a plan revision with respect to so much of the ap-
plicable implementation plan as is inadequate to prevent
or eliminate the endangerment referred to in subsection
(a) of this section. Any foreign country so affected by such
emission of pollutant or pollutants shall be invited to ap-
pear at any public hearing associated with any revision
of the appropriate portion of the applicable implementa-
tion plan.
(c) This section shall apply only to a foreign country which
the Administrator determines has given the United States
essentially the same rights with respect to the prevention
or control of air pollution occurring in that county as is
given that country by this section.
42 U.S.C. § 7415(a)-(c).
II. JUSTICIABILITY
A. Statutory Basis for Jurisdiction
[1] The Clean Air Act contains a citizen suit provision to per-
mit enforcement of required actions under the Act by private
citizens. This section states:
Except as provided in subsection (b), any person may
commence a civil action on his own behalf . . . against
the Administrator where there is alleged a failure of
the Administrator to perform any act or duty under
A-12
this Act which is not discretionary with the Ad-
ministrator. . . (b) Notice. No action may be commenc-
ed... prior to 60 days after the plaintiff has given
notice of such action to the Administrator. . . .
42 U.S.C. § 7604.
Plaintiffs allege that under section 115 the Administrator is
charged with performing a mandatory duty and due notice hav-
ing been served upon him, they thus invoke jurisdiction under
the citizen suit section. Whether the duties of the Administrator
under section 115 are mandatory or discretionary is discussed
more fully in Part III of this opinion, see infra pp. 1485-1486;
however, as the Court concludes that the duties are mandatory,
jurisdiction of this action properly lies in the district court under
42 U.S.C. § 7604. See Kennecott Copper Corporation, Nevada
Mines Division, McGill, Nevada v. Costle, 572 F.2d 1349 (9th
Cir. 1978).
B. Applicability of TRAC
[2] Intervenors argue further that, notwithstanding the pro-
visions of 42 U.S.C. § 7604, jurisdiction of this action is exclusive-
ly vested in the United States Court of Appeals for the District
of Columbia Circuit based on that court’s recent decision in
Telecommunications Research and Action Center v. Federal
Communications Commission, 750 F.2d 70 (D.C. Cir. 1984)
(TRAC). Specifically, intervenors argue that under TRAC any
action or inaction by the Administrator with respect to the Cos-
tle letters is reviewable only in the Court of Appeals for this Cir-
cuit pursuant to section 307 of the Clean Air Act. Section 307
provides for direct review by the court of appeals of “final ac-
tion taken” in specific and enumerated instances. See 42 U.S.C.
§ 7607(b)(1). However, as the subject of the instant complaint
is not “final action” and is not included among the specific
statutory bases for appellate court jurisdiction, section 307 can-
not apply.
Intervenors’ reliance on TRAC is misplaced. Plaintiff in TRAC
claimed that the FCC unreasonably delayed making a determina-
tion that AT & T was required to reimburse ratepayers for
A-13
allegedly unlawful overcharges. Under the applicable statute,
exclusive jurisdiction was conferred upon the court of appeals
to determine the validity of “all final orders of the Federal Com-
munications Commission.” 28 U.S.C. § 2342(1) (1982); 47 U.S.C.
§ 402(a) (1982). The ceurt of appeals held that its jurisdiction
was exclusive over nonfinal matters as well by virtue of the ex-
clusive jurisdiction provision coupled with the All Writs Act, 28
U.S.C. § 1651(a) (1982). The All Writs Act empowers federal
courts to issue writs necessary to aid their respective jurisdictions.
The court held that its authority would “extend[] to support an
ultimate power of review, even though it is not immediately and
directly involved.” 750 F.2d at 76.
The present case differs markedly from TRAC. Rather than
vesting ultimate review in the court of appeals, the Clean Air
Act specifically defines the role the district courts are to play in
its enforcement. Plaintiffs do not seek review of final agency ac-
tion which would be cognizable under section 307. They seek
review of an alleged failure to take action alleged to be man-
datory. Although Costle’s acts fall short of final action-as was
the case in TRAC-there is no need-and, indeed, no authority-
for the court of appeals to protect its prospective jurisdiction.
The review of the failure to perform a nondiscretionary act is
vested in the district court under section 304. The EPA, which
argues contrarily to intervenors with respect to this issue, urges
in it surreply that intervenors “can only read TRAC into this case
by reading section 304 out of the Clean Air Act.” EPA Surreply
at 2. As this claim is properly before the Court under section
304, the Court now proceeds to determine whether a justiciable
controversy has been presented.
C. Subject Matter Jurisdiction
Defendants have moved to dismiss the complaint for lack of
subject matter jurisdiction. The Court has reviewed the alter-
native bases for dismissal and concludes that plaintiffs have alleg-
ed material facts sufficient to sustain their claim that the court
possesses subject matter jurisdiction.
A-14
[3] Article III of the United States Constitution defines and
limits the jurisdiction of United States courts, stating in part that
the judicial power shall extend only to cases and controversies.
Hall v. Beals, 396 U.S. 45 90 S.Ct. 200, 24 L.Ed.2d 214 (1969).
This constitutional requirement has been interpreted by the
United States Supreme Court to mean that a plaintiff seeking
redress must allege:
a. threatened or actual direct injury resulting from the
putatively illegal action; and
b. an injury that can be fairly traced to the challenged ac-
tion that is likely to be redressed by a favorable decision.
Valley Forge Christian College v. Americans United for Separa-
tion of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct.
752, 758, 70 L.Ed.2d 700 (1982) (“Valley Forge”) [quoting Simon
v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26,
38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)]. Warth
v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45
L.Ed2d 343 (1975); Linda R.S. v. Richard D., 410 U.S. 614,
617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973); Baker v. Carr,
369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).
[4] These requirements assume constitutional stature because
they tend to ensure “a concrete factual context conducive to a
realistic appreciation of the consequences of judicial action.”
Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758. Thus, even
where Congress creates a statutory right of action, as it has
through section 304, a litigant suing under such a statute may
vindicate his claim only if he meets the constitutional re-
quirements articulated above, although a statutory right of ac-
tion will excuse a litigant from meeting the federal common law
“prudential” requirement of justiciability. Warth v. Seldin, 422
U.S. at 501, 95 S.Ct. at 2206. See also Valley Forge, 454 U.S.
at 487-88 n. 24, 102 S.Ct. at 766-67 n. 24.
1. General Principles
Section 304 of the Clean Air Act, as noted above, provides
that “any person” may commence a civil action to compel the
A-15
Administrator to undertake action under the Act which is not
discretionary. Under section 302 of the Act, person is defined
to include “an individual, corporation, partnership, association
[or] State. . . .” Thus, all of the plaintiffs who have joined in
this action have statutorily cognizable claims. In addition, all
plaintiffs except Representative Ottinger have presented facts suf-
ficient to meet the constitutional requirements discussed above.
[5] The state plaintiffs in this action seek enforcement not on-
ly for their citizens but on their own behalf. Although states fre-
quently sue under the doctrine of parens patriae, it is not un-
common for them also to maintain their own actions. The
Supreme Court has countenanced this procedure by holding in
a related context that states may rely on such statutes to establish
standing to challenge federal executive action. Wisconsin v.
Federal Power Commission, 373 U.S. 294, 83 S.Ct. 1266, 10
L.Ed.2d 357 (1963) (state permitted to sue under the Natural
Gas Act without meeting parens patriae criteria); Phillips
Petroleum Company v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794,
98 L.Ed. 1035 (1954); Pennsylvania v. Kleppe, 533 F.2d 668
(D.C. Cir. 1976) cert. denied, 429 U.S. 977, 97 S.Ct. 485, 50
L.Ed.2d 584; see also Hancock v. Train, 426 U.S. 167, 196, 96
S.Ct. 2006, 2020, 48 L.Ed.2d 555 (1976) (section 304 of the Clean
Air Act “is the only means provided by the Act for the States
to remedy noncompliance”).
[6] The citizen group plaintiffs sue on behalf of themselves and
on behalf of their members “who reside in areas throughout the
midwestern and northeastern states and eastern Canada and
breathe air pollution and suffer the other types of acid rain
damages which are the subject of this action.” Complaint at 4.
Defendants argue that plaintiff associations have failed to allege
that the associations or their members had been adversely af-
fected by the inaction of the Administrator, relying principally
on Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31
L.Ed.2d 636 (1972) and Warth v. Seldin, 422 U.S. 490, 95 S.Ct.
2197, 45 L.Ed.2d 343. These cases, however, do not prove defen-
dants’ contention. In Sierra Club v. Morton, plaintiff sued to
obtain judicial review of action by the United States Forest Ser-
vice approving recreational development in the Sierra Nevada
A-16
Mountains. The Supreme Court denied standing to the plaintiff
because it “failed to allege that it or its members would be af-
fected in any of their activities or pastimes. . . .” 405 U.S. at
735, 92 S.Ct. at 1366. In the present case, however, the plain-
tiffs have alleged not only that emissions from the polluting states
have adversely affected eastern Canada, but also have alleged
and supported with documentation that its members live, work,
vacation, or own property in eastern Canada.
Moreover, in Warth, the Supreme Court recognized that an
association may assert the rights of its members, but denied stan-
ding to the associated because none of them have sufficiently
alleged cognizable injury. In this case, plaintiff associations have
alleged with particularity that many of its members have suf-
fered or will suffer concrete harm as a result of the putatively
illegal inaction. Unlike Warth, which involved a tenuous causal
link between alleged illegality and the alleged harm, the pre-
sent case involves alleged inaction which, if cured, may lead
directly to reduced emissions and thus reduced harm. Plaintiffs
have quite clearly stated that “respirable particulates and deposi-
tion of acidic materials are causing substantial and irreversible
damage to the health and welfare of the people of the plaintiff
states, plaintiff organizations, and the individual plaintiff.” Com-
plaint at 1-2.
[7] The individual plaintiffs, with the exception of Represen-
tative Ottinger, also have alleged material facts sufficient to
enable them to proceed as plaintiffs in this action. These plain-
tiffs own property in the Muskoka Lake area of Ontario and
allege that their “air and water quality and personal property
have been damaged by air pollution emitted from certain
Midwestern States.” Complaint at 5. Although defendants have
countered that these plaintiffs have failed to specify any adverse
effects that have impaired the use of their property, the Court
is of the opinion that this is not required. Plaintiffs have alleged
that their health and property have been placed in jeopardy by
the pollutants. Further, the fact that their presence in a
geographical region harmed by the Administrator’s alleged in-
action is sufficient to confer upon them a cognizable interest.
A-17
See Sierra Club v. Morton, 405 U.S. at 734, 92 S.Ct. at 1366
(“[a]lesthetic and environmental well-being, like economic well-
being, are important ingredients of the quality of life in our socie-
ty, and the fact that particular environmental interests are shared
by the many rather than the few does not make them less deser-
ving of legal protection through the judicial process”).
[8] Representative Ottinger asserts a cognizable interest by vir-
tue of his position as a Member of Congress. However, there are
no special standards for determining congressional standing. As
Representative Ottinger has not alleged any property interest or
personal presence in the affected areas, and has not alleged other
facts which entitle him to invoke the Court's jurisdiction, his com-
plaint is merely a generalized grievance shared equally with all
citizens. However, as the other plaintiffs have alleged claims suf-
ficient to invoke the Court’s jurisdiction, Ottinger may remain
in the action. See Watt v. Energy Action Educational Founda-
tion, 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309
(1981); Arlington Heights v. Metropolitan Housing Development
Corporation, 429 U.S. 252, 264 n. 9, 97 S.Ct. 555, 563 n. 9,
50 L.Ed.2d 450 (1977).
2. Direct Injury
[9, 10] In addition to presenting properly cognizable claims
in their representative or individual capacities, plaintiffs also have
alleged cognizable direct injury sufficient to meet the constitu-
tional requirement of direct injury. As noted above, environmen-
tal harm is a legally redressable injury. Sierra Club v. Morton,
405 U.S. at 734, 92 S.Ct. at 1366. Further, although defendants
object that plaintiffs have not presented specific evidence of iden-
tifiable harm that has befallen them, legally recognizable harm
may be retrospective or prospective in nature. See United States
v. Students Challenging Regulatory Agency Procedures, 412 U.S.
669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973)
(“SCRAP”) See also Linda R.S. v. Richard D., 410 U.S. at 617,
93 S.Ct. at 1148 (“Although the law of standing has been great-
ly changed in the last 10 years, we have steadfastly adhered to
the requirement that, at least in the absence of a statute expressly
A-18
conferring standing, federal plaintiffs must allege some threaten-
ed or actual injury resulting from the putatively illegal action
before a federal court may assume jurisdiction”) (emphasis added)
(citations omitted). Since emissions from polluters in the
midwestern United States may cause damage to air quality, water
quality, and property in Canada, areas in which plaintiffs’
citizens or members live, work, vacation or own property, plain-
tiffs have alleged threatened or actual injury sufficient to establish
standing. See Friends of the Earth v. Potomac Electric Power
Company, 419 F.Supp. 528, 530 (D.D.C. 1976) (association
found to have standing to sue under the Clean Air Act to abate
pollution in Washington, D.C. where 430 of its 28,000 members
resided or worked in Washington and thus breathed and were
harmed by pollution).
3. Traceability and Redressability
{11, 12] Article III requires that the injury complained of be
fairly traced to the challenged action and that the harm involv-
ed be likely to be redressed by judicial intervention. As plain-
tiffs correctly noted, traceability and redressability “are in-
separable in the present case because the relief plaintiffs seek is
an order compelling the EPA to end the very inaction which is
the cause of plaintiffs’ injuries.” Plaintiffs’ Memorandum of Points
and Authorities at 41. These questions are problematic in the
area of acid precipitation because of political and scientific
dispute over the extent to which acid rain causes damage to
aquatic ecosystems, terrestris ecosystems, animal health, human
health, or artifacts. See ge» zrally Carroll, Acid Rain: An Issue
in Canadian-American Relations (Toronto and Washington:
1982). Defendants in this case contend that plaintiffs have fail-
ed to establish a causal link between EPA inaction and the ag-
gravated harm in Canada. They argue that, even if EPA is re-
quired to act, "it would be difficult, if not impossible, to iden-
tify facilities causing international pollution over hundreds of
kilometers.” Memorandum In Opposition to Plaintiffs’ Motion
for Summary Judgment at 19. This argument, however, is little
more than an assertion that EPA is unable or unwilling to do
what Congress has mandated it must do. Indeed, at the heart
ba ag hE lt A A ts
A-19
of section 115 is the congressional determination that the revi-
sion of state implementation plans is an effective mechanism for
abatement of international air pollution. See S.Rep. No. 127,
95th Cong. Ist Sess. 57 (1977), U.S.Code Cong. & Admin. News
1977, p. 1077. See also Animal Welfare Institute v. Kreps, 561
F.2d 1002, 1010 (D.C. Cir. 1977), cert. denied, 434 U.S. 1013,
98 S.Ct. 726, 54 L.Ed.2d 756 (1978) (by enacting remedial
measures under the Marine Mammal! Protection Act, Congress
determined that a causal relationship existed between American
import practices and South African sealing practices). As the
language of section 115 clearly indicates that a reduction in emis-
sions will abate the deleterious effects of midwestern pollution
on public health and welfare in Canada, the Court concludes
that the constitutional requirements of traceability and
redressability have been satisfied. Moreover, the United States
Court of Appeals for the District of Columbia Circuit has held
that the “redressability requirement” is to be construed broadly
in favor of plaintiffs:
[B]ecause the relevant inquiry is directed to the effect
of a future act (the court’s grant of the requested relief)
it would be unreasonable to require the plaintiff to pro-
ve that granting the requested relief is certain to
alleviate his injury. Furthermore, as cases such as the
present one show, litigation often ‘present[s] complex
interrelationships between private and government ac-
tivity that make difficult absolute proof that the harm
will be removed.” Thus, a court should be careful not
to require too much from a plaintiff attempting to
show redressability, lest it abdicate its responsibility
of granting relief to those injured by illegal govern-
ment action.
Community Nutrition Institute v. Block, 698 F.2d 1239, 1248
(D.C. Cir. 1983) (citations omitted), rev'd on other grounds, __
U.S. ___., 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984). Accord: In-
ternational Ladies’ Garment Workers’ Union v. Donovan, 722
F.2d 795, 811 n. 27 (D.C. Cir. 1983); cert. denied ___ U.S.
—___., 105 S.Ct. 93, 83 L.Ed.2d 39 (1984). Moreover, plaintiff
A-20
need not show that the injury would be completely redressed,
so long as “ ‘the requested relief would benefit [them] in some
perceptible, tangible fashion.” ” Sierra Club v. Edwards, 19 En-
vir. Rep. (BNA) 1357, 1366 (D.D.C. 1983) (citing Public Citizen
v. Lockheed Aircraft Corporation, 565 F.2d 708, 715 (D.C. Cir.
1977). Therefore, there is no basis to conclude that the injury
is not likely to be redressed by a favorable decision. Having con-
cluded that the plaintiffs have presented a justiciable controversy,
the Court now turns its attention to the merits of the action.
III. ANALYSIS OF THE SECTION 115 CLAIM
The task before the Court now is to determine if the re-
quirements of section 115 have been satisfied and, if so, what
action is required by the Administrator under the statute.
A. Whether Section 115 Has Been Satisfied
1. Receipt of Reports
[13] “The initial requirement under section 115 is that the Ad-
Ne ee,
agency. . . .” 42 U.S.C. § 7415. Costle stated in his letter to —
; Muskie that he examined in connection with his con-
sideration of the United States-Canada acid rain issue the Seventh
Annual Report on Great Lakes Water Quality, issued in October
1980 by the Internationa! Joint Commission. Costle averred that
this report “confirms that acid deposition is endangering public
welfare in the U.S. and Canada. . . .” It thus appears that his
determination was made “upon receipt” of the IJC report.
Therefore, the only question remaining is whether the IJC is a
duly constituted international agency.
Although the phrase “duly constituted international agency”
is not defined in the Act or in the legislative history, the IJC would
meet the expectations of the drafters of this section. The Com-
mission, established by the Boundary Waters Treaty of 1909,
United States-Canada, 36 Stat. 2448, T.S. No. 548 (effective May
13, 1910), is charged with the responsibility of resolving trans-
boundary water and navigational disputes between the United
A-21
States and Canada. It includes the approval of applications for
the use, obstruction, or diversion of water which would affect
the natural level or flow of water on the other side of the boun-
dary and the investigation of disputes involving United States-
Canada boundaries. See generally B. Caplan, The Applicabili-
ty of Clean Air Act Section 115 To Canada’s Transboundary Acid
Precipitation Problem, 11 B.C. Envtl. Aff. L. Rev. 539, 580-82
(1984). Based on these characteristics of the Commission and the
apparent agreement by the parties that the agency is duly con-
stituted, the Court concludes that the Costle determination was
made “upon receipt of reports, surveys or studies from any duly
constituted international agency. . . .”
2. Reason to Believe
[14] In order to trigger invocation of section 115, the Ad-
ministrator must have “reason to believe that any air pollutant
or pollutants emitted in the United States cause or contribute
to air pollution which may reasonably be anticipated to endanger
public health or welfare in a foreign country... .”
The IJC Report, upon which Administrator Costle in part bas-
ed his decision, concludes that:
“transmission of toxic and hazardous substances to the
Great Lakes via long range atmospheric transport and
deposition is a serious problem which requires further
research efforts and control measures. . . . All parts
of the Great Lakes watershed are now receiving
precipitation containing 5 to 40 times more acid than
would occur in the absence of atmospheric emission.”
Based on these findings, the Commission recommended “ap-
propriate actions to substantially reduce atmosphere emissions
of sulphur and nitrogen oxides from existing as well as new
sources... .”
The Clean Air Act does not specifically state what is necessary
for the Administrator to have “reason to believe”, but the IJC
Report would have afforded Costle ample basis upon which to
conclude that air pollutants in the United States contribute to
A-22
acid precipitation occurring in Canada such that it could
reasonably be anticipated that the public health and welfare of
Canada would be endangered. Indeed, that is exactly what Costle
believed, for he specifically stated that “the IJC Report confirms
that acid deposition is endangering public welfare in the United
States and Canada and that the United States and Canadian
sources contribute to the problem not only in the country where
they are located but also in the neighboring country.”
Defendants argue that Costle’s findings are ambiguous and
do not satisfy the requirements of section 115. They contend that
Costle only made the finding that “the cumulative effects of
Canadian and the United States emissions are creating a risk of
public harm in Canada.” EPA Motion to Dismiss at 29. This argu-
ment, however, cannot be reconciled with Costle’s statements.
In the letter to Senator Mitchell, Costle stated:
The relative contribution of U.S. and Canadian emis-
sion sources to acid deposition problems in the U.S.
and Canada varies widely from location to location.
. . . Surveys conducted over the past several years
establish that there is a significant flow of these
pollutants across the U.S.-Canadian border in both
directions. Thus, we can say with some certainty that
emission sources in the U.S. contribute significantly
to the atmospheric loadings over some sensitive areas
in Canada and that emission sources in Canada con-
tribute significantly to the loadings over some sensitive
areas in the United States.
Plaintiffs’ Exhibit 1-E at 2-3.
It was based on this information that Costle had reason to believe
that “U.S. and Canadian sources contribute to the problem not
only in the country where they are located but also in the
neighboring country.” Therefore, this requirement of the statute
is satisfied.
A-23
3. Reciprocity
[15] In addition, section 115 requires that its provisions be in-
voked only where the Administrator has determined that the
foreign country involved afford to the United States essentially
the same rights that the United States grants it with respect to
international air pollution.
Under section 21.1 of the Canadian legislation, if the Minister
of Environment has reason to believe that Canadian con-
taminants contribute to air pollution which may reasonably be
expected to constitute a significant danger to the health, safety,
or welfare of persons in another country, the Minister shall
recommend to the Governor in Council specific emission stan-
dards appropriate to reduce the damage. Additionally, the statute
requires the Minister of Environment to consult with the pro-
vince where the source of the international air pollution is located
and provides that a particular province can act to remedy air
pollution affecting a foreign country much in the same way that
a state mignt revise its SIP’s under section 115(b).
Costle discussed the Canadian law provisions and their effect
on the issue of reciprocity in the letters he wrote to Secretary
Muskie and Senator Mitchell. Costle concludes that “the amend-
ments to the Canadian Clean Air Act do give adequate authori-
ty to the Government of Canada to provide essentially the same
rights to the United States as Section 115 provides to Canada.”
However, Costle qualifies this conclusion by characterizing the
reciprocity determination as a fluid and dynamic situation that
is subject to change. He states that his determination “could be
changed should the U.S. conclude that future Canadian actions
interpreting or implementing their legislation were not giving
essentially the same rights to the U.S.” In addition, Costle em-
phasizes that at the time of any final action, “the Administrator
must continue to be able to find that Canada i is giving the United
States essentially the same rights. .
Defendants urge that Costle merely opines on whether the
Canadian legislation provides reciprocal rights to the United
A-24
States. Defendants cite to Costle’s language that his determina-
tion is not “permanently binding. . . .” However, this merely
underscores the reality that a finding under the statute must be
based on an analysis of facts and law as they exist at a particular
time and that a change of either facts or law might require reex-
amination of the determination. Moreover, should defendants
wish to challenge Costle’s findings, the appropriate time and
forum would be after a final action has been taken by the Ad-
ministrator in an action commenced in the court of appeals. 42
U.S.C. § 7607.
Based on its review of Costle’s letters, the Court concludes that
Costle did in January 1981 satisfy the section 115 requirement
that “the Administrator determine[] [that Canada give[s]] the
United States essentially the same rights with respect to the
prevention or control of air pollution occurring in that country
as is given that country by this section.” However, the Court
is concerned by Costle’s own qualifications of his conclusion, ag-
gravated in this case by the lengthy passage of time since the
determination was made. Therefore, the Court will afford the
current EPA Administrator an opportunity to review the issue
of reciprocity to determine whether Costle’s conclusion remains
viable.
B. The Effect of a Finding That Section 115 Has Been Invoked
[16] Under section 115, once the formal requirements of the
statute have been met, “the Administrator shall give formal
notification thereof to the Governor of the State in which such
emissions originate.” 42 U.S.C. § 7415(a). This notice “shall be
deemed to be a finding . . . which requires a plan revision with
respect to so much of the applicable implementation plan as is
inadequate to prevent or eliminate the endangerment referred
to in subsection (a).” 42 U.S.C. § 7415(b).*
* The Court notes that the states to which notification is due were not iden-
tified by Costle. Covtle instructed his staff to determine which states were to
be targeted, but no final action was taken. The Court is convinced that the
(footnote continued)
A-25
Defendants attack the legal significance of Costle’s findings
on three bases. First, they argue that Costle’s findings did not
constitute official decision-making. Second, they contend that
Costle’s actions were revoked by the actions of his successor, Ad-
ministrator Gorsuch. Third, defendants urge that the decision
to act under section 115, even once the necessary findings have
been made, is discretionary.
1. Official Decision-Making
[17] With respect to whether Costle made official determina-
tions, defendants note that Costle’s determination was made by
letter and argue that letters cannot constitute formal ad-
ministrative decision-making. Defendants suggest that another
method, for example, publishing the letters in the Federal
Register, would have given the determinations the characteristics
of official action.
Plaintiffs reply that the letters have all the attributes of of-
ficial agency action because they were written to the Secretary
of State, who is charged with administering foreign relations and
because they were publicized as agency action in a press release.
Plaintiffs cite other examples of official EPA action which was
taken by communicating through correspondence. The Court
concludes that the fact that Costle memorialized his findings in
a letter does not defeat their classification as official agency ac-
tion. It appears that publication in the Federal Register would
be inappropriate for this kind of action because it is not a rule
or policy statement. 5 U.S.C. §§ 552(a)(1) and 553(b). Addi-
tionally, notification to the Governors would presumably be
achieved by letter. That the Administrator chose this medium
obligation to identify the polluting states is incidental to giving formal notifica-
tion and not a prerequisite to the conclusion that Costle made the requisite
findings under section 115. The construction of section 115 and Costle’s descrip-
tion of the statute in his letter to Secretary Muskie illustrate that section 115
is triggered once the Administrator receives qualified reports that give him reason
to believe United States sources are polluting Canada and the Administrator
makes the requisite finding of reciprocity.
A-26
to make his findings should not frustrate the Administrator’s in-
tent to secure compliance by the states. **
2. Revocation
[18] Defendants also argue that whatever determinations Costle
made were revoked by Administrator Gorsuch in a letter she sent
to the Governor of Ohio on September 22, 1981. In this letter,
Gorsuch assured Governor Rhodes that Costle’s letter did not
satisfy section 115 and that the letter was void of legal
significance. See Defendants’ Exhibit 1.
Plaintiffs counter that while Gorsuch made a legal conclusion
of the effect of the letter, she did not review the factual bases
for the determination nor suggest that these determination were
erroneous. This kind of factual review appears to have been
necessary under the ordinary procedure that an Administrator
employs to avoid being bound by the decisions of a predecessor.
See EPA Exhibit 6 (“a new Administrator could “reconsider” or
“make different findings”). Gorsuch made no such factual fin-
dings. She did not address the relevant facts which would have
been considered in revoking the prior administrative findings.
She did not refer to any change of circumstances which would
call into question the adequacy of Canadian law to provide rights
to the United States. She did not address any changes in scien-
tific evidence demonstrating the cessation of adverse impacts in
Canada from U.S. emissions. Therefore, it cannot be conclud-
ed that the Gorsuch letter revoked the Costle determination that
** Correspondence is frequently used by EPA to take formal action under the
Clean Air Act. For example, notification to owners of major pollution sources
that are subject to particular emission control requirements is frequently ac-
complished by correspondence. See Harrison v. PPG Industries, 446 U.S. 578,
582, 100 S.Ct. 1889, 1892, 64 L.Ed.2d. 525 (1980); Hawaiian Electric Com-
pany v. EPA, 723 F.2d 1440, 1442 (9th Cir. 1984). Determinations that a source
is not in compliance with emission cot..rol requirements under 42 U.S.C. § 7413
of the Act is accomplished by correspondence. Wisconsin’s Environmental
Decade, Inc. -v. Wisconsin Power and Light Co., 395 F.Supp. 313 (W.D. Wis.
1975). Waivers by the Administrator of “new source performance standards”
under 42 U.S.C. 7411(j) have been denied to operators of emission sources by
way of correspondence. Central Illinois Public Service Co. v. U.S. EPA, 594
F.2d 636, 637 (7th Cir. 1979).
anand ae
00H he Sie tk Ne see SONOS SRN Ninel PE erin
A-27
section 115 was applicable. See Motor Vehicle Manufacturers
Association of the United States, Inc. v. State Farm Mutual
Automobile Insurance Company, 463 U.S. 29, 103 S.Ct. 2856,
2866, 77 L.Ed.2d 443 (1983) (“Revocation constitutes a reversal
of the agency’s former views as to the proper course. A ’settled
course of behavior embodies the agency’s informed judgment
that, by pursuing that course, it will carry out the policies com-
mitted to it by Congress. There is, then, at least a presumption
that those policies will be carried out best if the settled rule is
adhered to.’ Accordingly, an agency changing its course by rescin-
ding a rule is obligated to supply a reasoned analysis for the
change beyond that which may be required when an agency does
not act in the first instance”) (citations omitted).
3. Discretionary Act
Third, defendants urge that the decision to act under section
115 is discretionary. The Court notes that this is really a jurisdic-
tional argument because section 304 jurisdiction exists in the
district court only to challenge mandatory duties that the Ad-
ministrator has failed to perform. Nevertheless, defendants urge
that, even if Costle made the requisite findings under the statute,
the decision whether to notify the Governors or to take any ad-
ditional steps under section 115 is discretionary.
Defendants’ argument finds no support either in the statute
and its legislative history or in the relevant case law. The plain
language of section 115 is clear: whenever the Administrator
makes the findings set forth in the statute, “the Administrator
shall give formal notification thereof to the Governor of the State
in which such emissions originate” (emphasis added). As
reiterated by the United States Court of Appeals for the District
of Columbia Circuit, when the Clean Air Act uses “shall,” the
normal inference is that the act is mandatory. Oljato Chapter
of the Navajo Tribe v. Train, 515 F.2d 654, 664 (D.C. Cir. 1975).
See also Anderson v. Yungkau, 329 U.S. 482, 485, 67 S.Ct. 428,
430, 91 L.Ed. 436 (1947). In addition, the Report of the Com-
mittee on Public Works of the United States Senate concluded
A-28
that “[s]ection 115, as revised, therefore, provides that the deter-
mination that emissions of air pollutants in the United States are
endangering the health or welfare of citizens of a foreign coun-
try will require the State in which the source of those emissions
is located to revise its implementation plan to control those emis-
sions.” Senate Comm. on Public Works, Clean Air Amendments
of 1976, S.Rep. No. 717, 94th Cong., 2d Sess. (1976).
Defendants argue that a section 115 decision must be discre-
tionary because it “requires the fusion of technical knowledge
and skills with judgment which is the hallmark of duties which
are discretionary.” Intervenors’ Memorandum of Points and
Authorities at 17 (quoting Kennecott Copper Corporation,
Nevada Mines Division, McGill, Nevada v. Costle, 572 F.2d 1349
(9th Cir. 1978) (“Kennecott”)). However, the cases upon which
defendants rely and other relevant cases suggest that discretion
exists in the Administrator to determine only the manner in which
the duty is to be executed, not whether it is to be executed. In
Kennecott, for example, the court held that it did not have
jurisdiction under section 304. of the Clean Air Act because the
plaintiff sought review of a discretionary action. Specifically,
plaintiff sought a declaratory judgment that it had satisfied the
Act by making certain improvements. Plaintiff relied on section
110(a)(3) of the Act, which states that the Administrator “shall
approve” any revision meeting the statutory requirements, to con-
tend that the Administrator was under a mandatory duty to ap-
prove a variance. However, the Court held that determining
whether a SIP met the requirements was discretionary, thus it
had no jurisdiction. The Court pointed out that once the Ad-
ministrator had made the determination that the statutory re-
quirements had been met, “there is a nondiscretionary duty to
act in accordance with his determination.” 572 F.2d at 1355.
This holding is applicable to the present case. The Administrator
exercised discretion in determining whether the statutory re-
quirements had been met, but once he made the determination
that the requirements had been satisfied, he was under a man-
datory duty to act in accordance with the statute by giving for-
mal notification to the Governors. The relevant case law uniform-
ly upholds the determination that sections employing the word
A-29
“shall” in the Clean Air Act signify mandatory duties. See Train
v. Natural Resources Defense Council, 421 U.S. 60, 79, 95 S.Ct.
1470, 1481, 43 L.Ed.2d 731 (1975) (once statutory criteria are
met, agency action is required); Natural Resources Defense Coun-
cil v. Train, 545 F.2d 320, 328 (2d Cir. 1976) (to hold other than
that the use of “shall” in the statute is to render this mandatory
ianguage mere surplusage); Oljato Chapter of Navajo Tribe v.
Train, 515 F.2d 654, 662 (D.C. Cir. 1975) (it would be an abuse
of discretion for the Administrator to fail to revise a standard
of performance when the evidence supporting revision is com-
pelling); Citizens for a Better Environment v. Costle, 515 F.Supp.
264 (N.D.Il1.1981); Dow Chemical Company v. Costie, 480
F.Supp. 315, 317 (E.D.Mich.1978), affd 659 F.2d 724 (6th
Cir.1981). Therefore, the Court concludes that the duty of the
Administrator to act according to the statute is nondiscresionary
under section 115.
IV. CONCLUSION
The Court concludes from the record before it that defendants’
motions to dismiss and for summary judgment must be denied
and that plaintiffs’ motion for summary judgment should be
granted. Having concluded that Administrator Costle properly
invoked section 115 of the Clean Air Act, it now is incumbent
upon the current EPA Administrator to “give formal notifica-
tion” to the Governors of the states in which harmful emissions
originate and to set in motion the necessary processes to require
a plan revision so as to prevent or eliminate the endangerment
encompassed by the Costle determinations. An appropriate Order
accompanies this Memorandum.
iain acca
}
APPENDIX A TO DISTRICT COURT OPINION
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN 13 1981
Honorable Edmund S. Muskie |
Secretary of State
Washington, D.C. 20242
Dear Mr. Secretary:
As you know, on December 17, 1980, the Canadian Parlia-
ment approved legislation providing the Canadian federal
government with authority to abate emissions from Canadian
sources which contribute to transboundary air pollution. On
December 24, 1980, the Department of State announced that
the United States would evaluate the Canadian legislation to
determine whether it provides essentially the same rights as Sec-
tion 115 of the U.S. Clean Air Act.
As required by the Clean Air Act, I have completed my review
of the Canadian legislation. After consultation with the Depart-
ment of State, I have concluded that the Canadian legislation
provides the Government of Canada with authority to give the |
United States essentially the same rights as Section 115 of the |
Clean Air Act gives to Canada. In addition to this initial deter-
mination based on the language of the Canadian legislation, the
Administrator must be able to determine that the Government
of Canada is exercising or interpreting that authority in a man-
ner that provides essentially the same rights to the United States.
This second aspect of EPA’s determination is necessarily a
dynamic one which will continue to be influenced by Canadian
action now and in the future.
Section 21.1(1) of the Canadian legislation provides that where
the Minister of Environment has reason to believe that an air
contaminant emitted by a Canadian source or sources creates
or contributes to air pollution that may reasonably be expected
to constitute a significant danger to the health, safety, or welfare
A-31
of persons in another country, the Minister shall recommend to
the Governor in Council (the highest federal executive authori-
ty) specific emission standards for the source or sources, in rela-
tion to the air contaminant, either alone or in combination with
one or more other air contaminants, as he considers appropriate
to eliminate or significantly reduce the danger. Under Section
21.1(2), if Minister proposes a recommendation, the notice of
the proposal is to be published in the Canadian Gazette. A
reasonable opportunity to make representations to the Minister
concerning the proposal is to be offered to persons in Canada
who would be affected by the prescription of specific emission
standards, and to the endangered country.
For sources other than “federal” sources, Section 21.1(3) in
effect requires that before making a final recommendation the
Minister must consult with the appropriate province and pro-
vide the province with an opportunity to eliminate or significantly
reduce the danger to the other country.
Section 21.2(1) authorizes the Governor in Council to prescribe
specific emission standards recommended by the Minister if the
Governor in Council concludes that the foreign country con-
sidered in making the recommendation under Section 21.1(1)
has provided for “essentially the same kind of benefits in favor
of Canada with respect to abatement or control of air pollution
as is provided in favor of the country” by the Canadian Clean
Air Act. In order to prescribe a specific emission standard with
respect to non-federal sources, the Governor in Council must con-
clude that reasonable efforts by the Minister to procure reduc-
tion or elimination of the danger by the provincial government,
have been unsuccessful.
As with most legislation, it is possible that the Canadian legisla-
tion could in the future be interpreted or implemented in a way
that the United States would conclude that it was not being given
essentially the same rights as are provided under Section 115.
Thus, it is not possible to make a permanently binding deter-
mination that Canada has given the United States essentially the
same rights based simply on a review of Canadian authorizing
A-32
legislation. EPA first determines that Canadian legislation gives
ample authority to the Government of Canada to provide essen-
tially the same rights to the United States. Second, EPA must
determine that the Government of Canada is exercising or in-
terpreting that authority in a manner that provides essentially
the same rights to the United States. This second aspect of EPA’s
determination is necessarily a dynamic one which will continue
to be influenced by Canadian action now and in the future.
In my view, the amendments to the Canadian Clean Air Act
do give adequate authority to the Government of Canada to pro-
vide essentially the same rights to the United States as Section
115 provides to Canada. Both Section 115 and Sections 21.1 and
21.2 authorize a federal official to make a finding or recommen-
dation concerning endangerment to health or welfare of a foreign
country due to any air pollutant emitted domestically, and to
prescribe specific emission limits to eliminate, significantly
reduce, or prevent the endangerment. The Canadian legislation
refers to "significant danger to the health, safety or welfare of
persons,” thus my conclusion assumes this phrase will be inter-
preted to have essentially the same coverage as the Section 115
phrase “endanger public health or welfare.” Both statutes allow
the State or province, as appropriate, to take actions to remedy
air pollution affecting a foreign country. If the State or provin-
cial government fails to develop an adequate remedy the federal
government is authorized to establish emission limitations. Each
Statute also requires that the federal government provide oppor-
tunities for public hearing on any proposed action and participa-
tion in the hearing by an affected foreign government.
The principal difference in the two statutes is the detailed pro-
cedural and substantive requiremeats applicable to the State plan
revis'::a process under the U.S. Clean Air Act as opposed to the
more general requirement in the Canadian legislation for pro-
vincial consultation and reasonable efforts to secure action by
the provincial government. In my judgment, that difference does
not significantly restrict the ability of the Government of Canada
to provide essentially the same rights to the United States. The
Canadian requirement for federal consultation and efforts to
ee
A-33
procure provincial action fills the same role as the State plan revi-
sion process in the U.S. system. Consequently, I have conclud-
ed that, despite the differing process at the State and provincial
levels, the Canadian legislation does provide the Government
of Canada with ample authority to give essentially the same rights
to the United States as are provided by Section 115.
I should observe that the provisions of the Canadian legisla-
tion do appear to provide the Minister of Environment with some
discretion regarding the scope of the remedy he must recommend,
as well as the adequacy of any remedies undertaken by the pro-
vincial government. Similarly, the Governor Council is apparent-
ly provided with discretion regarding final prescription of specific
emission standards as is the case for all regulations issued under
the Canadian Clean Air Act. For these reasons, my determina-
tion that the Canadian legislation provides essentially the same
rights as Section 115 could be changed should the U.S. conclude
that future Canadian actions interpreting or implementing their
legislation were not giving essentially the same rights to the U.S.
In connection with my review of the recent Canadian legisla-
tion, I have also examined the Seventh Annual Report on Great
Lakes Water Quality issued on October 1980 by the International
Joint Commission (IJC). I have concluded that the IJC Report
confirms that acid deposition is endangering public welfare in
the U.S. and Canada and that U.S. and Canadian sources con-
tribute to the problem not only in the country where they are
located but also in the neighboring country. I am enclosing a
letter which I have sent to Senator George Mitchell on this sub-
ject which discusses the IJC Report in greater detail and the im-
plications of these conclusions with respect to any future actions
by EPA pursuant to Section 115 of the Clear Air Act.
Sincerely yours,
/s/ Douglas M. Costle
Douglas M. Costle
Enclosure
A-34
APPENDIX B TO DISTRICT COURT OPINION
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAN 13 1981
Honorable George Mitchell
United States Senate
Washington, D.C. 20510
Dear Senator Mitchell:
Thank you for your letter of December 23, 1980 regarding
Section 115 of the Clean Air Act. As you are aware, this Section
of the law requires EPA, if certain conditions are met, to call
on States to revise their implementation plans where necessary
to prevent or eliminate endangerment to public health or welfare
in a foreign country stemming from air pollutants emitted in the
United States.
Two recent actions require me to consider whether EPA should
identify appropriate States for notification under this Section.
First, in October 1980, the International Joint Commission sub-
mitted its Seventh Annual Report on Great Lakes Water Quali.
ty. That report contains a section describing damages due to
transboundary air pollution and a recommendation that the
Governments of the United States and Canada act to reduce cer-
tain air pollutants. Second, on December 17, 1980, the Cana-
dian Parliament approved legislation providing the Canadian
federal government with powers to abate transboundary air
pollution. On December 24, 1980, the U.S. Department of State
issued a public statement committing the United States to
evaluate whether this Canadian legisiation provides essentially
the same rights as are provided by Section 115 of the Clean Air
Act. The Clean Air Act requires the Administrator of EPA to
make this determination.
There are two principal conditions which must be met before
EPA can notify a State under Section 115 that a plan revision
A-35
is required. First, the Administrator on receipt of reports, surveys,
or studies from 2 duly constituted international agency must con-
clude that U.S. emissions are causing or contributing to endanger-
ment in a foreign country, or must have received a request from
the Secretary of State to notify a State. Second, before the pro-
visions of Section 115 can be applied with respect to a foreign
country, the Administrator must determine that the country pro-
vides the United States with essentially the same rights regar-
ding international air pollution control as are provided by Sec-
tion 115.
Your letter calls attention to certain reports which discuss pro-
blems of transboundary air pollution between the United States
and Canada. As you are aware, the major focus of U.S.-Canadian
concerns in the past two years respecting transboundary air quali-
ty has been on the question of the adverse impacts of acid
deposition.
As my public statements over the past year have indicated,
EPA has concluded that acid deposition, often referred to as acid
rain, presents a genuine threat to our environmental well-being
both in the U.S. and Canada. What we know or suspect about
acid deposition indicates that the problem is genuine and serious:
—acid deposition can and has destroyed lake and stream
ecosystems, killing fish and other water life;
—many lakes in Canada and the United States are already
acidified and their fish populations are shrinking or are extinct;
—some soils are being damaged over time due to leaching of
minerals and nutrients;
— the water and soils over extensive areas in North America are
susceptible to acidification;
— stone buildings, monuments, and other building materials are
eroded more rapidly by acid deposition;
— some important crops may be damaged by acid deposition and
others may be injured by acidified soils;
— growth of forests may be reduced over time;
— over the long term some drinking water supplies may be con-
taminated by toxic metals leached from the soil as a result of
acid deposition.
‘
A-36
These kinds of impacts are within the range of impacts by Sec-
tion 115. As you know, that Section is broadly drafted to en-
compass all forms of air pollution-related endangerment to public
health or welfare and is not limited to interference with U.S
air quality standards or significant deterioration program as is
Section 126 of the Clean Air Act.
The relative contribution of U.S. and Canadian emission
sources to acid deposition problems in the U.S. and Canada varies
widely from location to location. The stress to our ecosystems
created by acid deposition is a function of the total atmospheric
loadings of sulfur and nitrogen compounds. Surveys conducted
over the past several years establish that there is a significant
flow of these pollutants across the U.S.-Canadian border in both
directions. Thus, we can say with some certainty that emission
sources in the U.S. contribute significantly to the atmospheric
leadings over some sensitive areas in Canada and that emission
sources in Canada contribute significantly to the loadings over
some sensitive areas in the United States.
Given our understanding of the impacts of acid deposition and
of the joint contribution of U.S. and Canadian sources to the
problem, I believe that the Section 115 authority could ap-
propriately be used to develop solutions, provided that either the
Secretary of State requests action or that any relevant reports
of international agencies state the existence of the problem and
that Canadian law and pactice provide the U.S. with essen-
tially the same rights respecting emission sources located in
Canada.
The International Joint Commission which is a duly constituted
‘ international agency under Section 115, has recently transmit-
ted a report which addresses the issue of acid deposition. My
review of the October 1980 Seventh Annual Report on Great
Lakes Water Quality of the International Joint Commission (IJC)
leads me to conclude that the IJC has found acid deposition results
in significant harm in both the U.S. and Canada and that emis-
sion sources in both the U.S. and Canada contribute to the pro-
blem through the long-range transport of air pollution. The IJC
a ee TAO BT Pg Ba ik
A-37
Report states that “[a]cidic precipitation is one widely known
and serious example of a problem associated with the long-range
transport of airborne pollutants.” (Report at 49). The Report
states that “[v]irtually all of eastern Canada and portions of the
northeastern United States experience rains with acidity equal
to or exceeding that which can adversely affect susceptible
ecosystems. All parts of the Great Lakes watershed are now
receiving precipitation containing 5 to 40 times more acid than
would occur in the absence of atmospheric emissions. Many in-
land lake ecosystems in the most susceptible parts of the Basin
may be irreversibly harmed within 10-15 years.” (Report at 50).
The Report also notes that “[a] substantial portion of the Great
Lakes drainage basin is potentially susceptible to acidic precipita-
tion, based on its bedrock geology. The Sudbury, Muskoka and
Haliburton areas of Ontario and the Adirondacks of northern
New York are among the most heavily impacted areas in the
world because their geology offers little buffering capacity to their
inland lakes. Some lakes in the Hailburton-Muskoka area have
lost 40-75 percent of their acid neutralizing ability in a decade
or less. These areas are now being subjected to precipitation
which is twice as acidic as that which caused losses of major fish
stocks in thousands of Scandinavian lakes.” (Report at 50).
The Report points out “the massive and diffuse nature of the
[emission] sources throughout eastern North America” (Report
at 54) and notes that acid deposition often occurs “many hun-
dreds of miles from the source.” (Report at 50).
Finally, the IJC recommends in the Report that the Govern-
ments of the United States and Canada, “undertake further ac-
tions to reduce atmospheric emissions of the oxides of sulfur and
nitrogen from existing as well as new sources.” (Report at 5).
I have concluded that this report confirms my previously stated
position that acid deposition is causing significant environmen-
tal problems on both sides of the U.S.-Canadian border due to
emissions from U.S.-and Canadian sources.
The question of whether Canada “has given the United States
essentially the same rights” with respect to emission sources in
A-38
Canada as is provided by Section 115 requires consideration of
recently enacted Canadian legislation.
On December 17, 1980, the Canadian Parliament approved
legislation which provides the Canadian federal government with
authority to adopt emission standards for sources which con-
tribute to air pollution related problems in another county.
Specifically, Section 21.1(1) of the legislation provides that where
the Minister of Environmental has reason to believe that an air
contaminant emitted by a Canadian source or sources creates
or contributes to air pollution that may reasonably be expected
to constitute a significant danger to the health, safety, or welfare
of persons in another country, the Minister shall recomment to
the Governor in Council (the highest federal executive authori-
ty) specific emission standards for the source or sources, in rela-
tion to the air contaminant, either alone or in combination with
one of more other air contaminants, as he considers appropriate
to eliminate or significantly reduce the danger. Under Section
21.1(2), if the Minister proposes a recommendation, the notice
of the proposal is to be published in the Canadian Gazette. A
reasonable opportunity to make representations to the Minister
concerning the proposal is to be offered to persons in Canada
who would be affected by the prescription of specific emission
standards, and to the endangered country.
For sources other than “federal” sources, Section 21.1(3) sin
effect requires that before making a final recommendation the
Minister must consult with the appropriate province and pro-
vide the province with an opportunity to eliminate or significantly
reduce the danger to the other country.
Section 21.2(1) authorizes the Governor in Council to prescribe
specific emission standards recommended by the Minister if the
Governor in Council concludes that the foreign country con-
sidered in making the recommendation under Section 21.1(1)
has provided for “essentially the same kind of benefits in favor
of Canada with respect to abatement or control of air pollution
as is provided in favor of the country” by the Canadian Clean
Air Act. In order to prescribe a specific emission standard with
A-39
- |
respect to non-federal sources, the Governor in Council must con-
clude that reasonable efforts by the Minister to procure reduc-
tion or elimination of the danger by the provincial government,
have been unsuccessful.
As with most legislation, it is possible that the Canadian legisla-
tion could in the future be interpreted or implemented in a way
that the United States would conclude that it was not being given
essentially the same rights as were provided under Section 115.
Thus, it is not possible to make a permanently binding deter-
mination that Canada has given the United States essentially the
same rights based simply on a review of Canadian authorizing
legislation. EPA first determines that Canadian legislation gives
ample authority to the Government of Canada to provide essen-
tially the same rights to the United States. Second, EPA must
determine that the Government of Canada is exercising or in-
terpreting that authority in a manner that provides essentially
the same rights to the United States. This second aspect of EPA’s
determination is necessarily a dynamic one which will continue
to be influenced by Canadian action now and in the future.
In my view, the amendments to the Canadian Clean Air Act
do give adequate authority to the Government of Canada to pro-
vide essentially* the same rights to the United States as Section
115 provides to Canada. Both Section 115 and Sections 21.1 and
21.2 authorize a federal official to make a finding or recommen-
dation concerning endangerment to health or welfare of a foreign
country due to any air pollutant emitted domestically, and to
prescribe specific emission limits to eliminate, significantly
reduce, or prevent the endangerment. The Canadian legislation
refers to “significant danger to the health, safety or welfare of
persons,” thus my conclusion assumes this phrase will be inter-
preted to have essentially the same coverage as the Section 115
phrase “endanger public health or welfare.” Both statutes allow
the State or province, as appropriate, to take actions to remedy
air pollution affectng a foreign country. If the State or provin-
cial government fais to develop an adequate remedy the federal
* Emphasis not in orignal.
Lae ee
A-40
government is authorized to establish emission limitations. Each
statute also requires that the federal government provide oppor-
tunities for public hearing on any proposed action and participa-
tion in the hearing by an affected foreign government.
The principal difference in the two statutes is the detailed pro-
cedural and substantive requirements applicable to the State plan
revision process under the U.S. Clean Air Act as opposed to the
more general requirement in the Canadian legislation for pro-
vincial consultation and reasonable efforts to secure action by
the provincial government. In my judgment, that difference does
not significantly restrict the ability of the Government of Canada
to provide essentially the same rights to the United States. The
Canadian requirement for federal consultation and efforts to pro-
cure provincial action fills the same role as the State plan revi-
sion process in the U.S. system. Consequently, I have conclud-
ed that, despite the differing process at the State and provincial
levels, the Canadian legislation does provide the Government
of Canada with ample authority to give essentially the same rights
to the United States as are provided by Section 115.
I should observe that the provisions of the Canadian legisla-
tion do appear to provide the Minister of Environment with some
discretion regarding the scope of the remedy he must recommend,
as well as the adequacy of any remedies undertaken by the pro-
vincial government. Similarly, the Governor Council is apparent-
ly provided with discretion regarding final prescription of specific
emission standards as is the case for all regulations issued under
the Canadian Clean Air Act. For these reasons, my determina-
tion that the Canadian legislation provides essentially the same
rights as Section 115 could be changed should the U.S. conclude
that future Canadian actions interpreting or implementing their
legislation were not giving essentially the same rights to the U.S.
As you know, Section 115 is activated by giving formal notifica-
tion to the Governor of a specific State. EPA has not yet deter-
mined which State or States will require notification under Sec-
tion 115. I have instructed my staff to examine this issue and
to develop recommendations regarding the States which should
receive formal notification. Notification to a State under the
A-41
Clean Air Act is only the first of several steps in the plan revi-
sion process. After receiving a plan revision notification, the State
must identify and propose control measures to address the pro-
blem and provide opportunity for public hearing prior to adop-
tion and submittal to EPA.
Several factors will require that EPA make extraordinary ef-
forts to consult and cooperate with affected States in this pro-
cess. The acid deposition problem is clearly a regional one which
crosses numerous State boundaries. The affected States will need
to discuss the problem with one another and EPA will need to
assist them in this effort. Second, since there are no established
numerical standards by which to assess the adequacy of acid
deposition mitigation measures, EPA and the affected States will
have to work closely on developing target levels for State and
regional emission reductions.
In summary, I believe the IJC Report confirms that acid
deposition is endangering public welfare in the U.S. and Canada
and that U.S. and Canadian sources contribute to the problem
not only in the country where they are located but also in the
neighboring country. Regarding the requirement of reciprocal
rights, I believe the new Canadian legislation provides the
Government of Canada with ample authority to give the United
States essentially the same rights as Section 115. While this con-
clusion is adequate to warrant the initiation of a Section 115 based
plan revision process in appropriate States, I must emphasize that
during such a process and at the time of any final action, the
Administrator must continue to be able to find that Canada is
giving the United States essentially the same rights based on an
evaluation of Canada’s interpretation and implementation of its
legislation.
I appreciate your interest in this very important subject. EPA
will continue to keep your office informed of its actions on this
matter.
Sincerely yours,
/s/ Douglas M. Costle
Douglas M. Costle
A-42
APPENDIX C
ORDER OF THE DISTRICT COURT
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STATE OF NEW YORK, et al., :
Plaintiffs,
v. : Civil Action No. 84-0853
LEE M. THOMAS, et al.,
Defendants.
ORDER
Upon consideration of the cross-motions for summary judg-
ment, the motion to dismiss, the supporting and opposing
memoranda, and the entire record herein, and consistent with
the Memorandum Opinion of even date, it is this 26th day of
July, 1985,
ORDERED that the motion of intervenors to dismiss be, and
hereby is, denied; it is further
ORDERED that the motion of defendants for summary judg-
ment be, and hereby is, denied; it is further
ORDERED that the motion of plaintiffs for summary judg-
ment be, and hereby is, granted and that summary judgment
be, and hereby is, entered in favor of plaintiffs; and it is further
ORDERED that defendant Administrator, if he deems ap-
propriate, determine, within ninety (90) days of the date of this
Order, whether the finding of reciprocity by former Ad-
ministrator Costle remains viable; and it is further
A-43
ORDERED that, if there is a finding of reciprocity, defen-
dant Administrator shall on or before one hundred eighty (180)
days thereafter, comply with his mandate under section 115 by
formally notifying the governors of any state in which such emis-
sions originate.
/s/ Norma Holloway Johnson
NORMA HOLLOWAY JOHNSON
UNITED STATES DISTRICT JUDGE
A-44
APPENDIX D
ORDER OF THE UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
SEPTEMBER TERM, 1986
No. 85-5970 Civil Action No. 84-853
Lee M. Thomas, Administrator, United States Environmental
Protection Agency, and Alabama Power Company, et al.,
Appellants
v.
State of New York, et al.
No. 85-5972 Civil Action No. 84-853
Lee M. Thomas, Administrator United States Environmental Pro-
tection Agency, and Alabama Power Company, et al.,
Appellants
Wa
State of New York, et al.
No. 85-5994 Civil Action No. 84-853
Lee M. Thomas, Administrator, United States Environmental
Protection Agency, and National Coal Association,
Appellants
Vv.
State of New York, et al.
A-45
| No. 85-6113 Civil Action No. 84-853
Lee M. Thomas, Administrator, United States Environmental
Protection Agency, and Commonwealth of Kentucky,
Appellants
Vv.
State of New York, et al.
No. 85-6114 Civil Action No. 84-853
Lee M. Thomas, Administrator, United States Environmental
Protection Agency, and State of Ohio,
Appellants
v.
State of New York, et al.
APPEALS FROM AN ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Before: MIKVA and SCALIA, Circuit Judges,
and WRIGHT, Senior Circuit Judge.
JUDGMENT
These causes came on to be heard on the records on appeal
from an order of the United States District Court for the District
of Columbia, and were argued by counsel. On consideration
thereof, it is
A-46
ORDERED and ADJUDGED, by the Court, that the judg-
ment of the District Court appeaJed from in these causes is hereby
reversed and these cases are reinanded with instructions, in ac-
cordance with the Opinion for the Court filed herein this date.
Per Curiam
For the Court
/s/ George A. Fisher
Clerk
Date: September 18, 1986
Opinion for the Court filed by Circuit Judge Scalia.
A-47
APPENDIX E
. ORDER OF THE UNITED STATES COURT OF APPEALS
DENYING REHEARING
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 85-5970 SEPTEMBER TERM, 1986
| CA. No. 84-00853
State of New York, et al.
We
Lee M. Thomas,
Administrator,
U.S. Environmental
Protection Agency
And Consolidated Cases
BEFORE:
MIKVA, Circuit Judge and WRIGHT, Senior Circuit Judge
ORDER
Upon consideration of the petitions for rehearing of petitioners
and of the State of Maine and Her Majesty the Queen in Right
of Ontario, filed November 3, 1986, it is
ORDERED, by the Court, that the petitions are denied.
Per Curiam
FOR THE COURT:
GEORGE A FISHER, CLERK
BY: /s/ Robert A. Bonner
Chief Deputy Clerk
APPENDIX F
CLEAN AIR ACT
42 U.S.C. § 7415
INTERNATIONAL AIR POLLUTION
Sec. 115. (a) Whenever the Administrator, upon receipt of
reports, surveys or studies from any duly constituted international
agency has reason to believe that any air pollutant or pollutants
emitted in the United States cause or contribute to air pollution
which may reasonably be anticipated to endanger public health
or welfare in a foreign country or whenever the Secretary of State
requests him to do so with respect to such pollution which the
Secretary of State alleges is of such a nature the Administrator
shall give normal notification thereof to the Governor of the State
in which such emissions originate.
(b) The notice of the Administrator shall be deemed to be a
finding under section 110(a)(2)(H)(ii) which requires a plan revi-
sion with respect to so much of the applicable implementation
plan as is inadequate to prevent or eliminate the endangerment
referred to in subsection (a). Any foreign country so affected by
such emission of pollutant or pollutants shall be invited to ap-
pear at any public hearing associated with any revision of the
appropriate portion of the applicable implementation plan.
(c) This section shall apply only to a foreign country which
the Administrator determines has given the United States essen-
tially the same rights with respect to the prevention or control
of air pollution occurring in that country as is given that coun-
try by this section.
_ (d) Recommendations issued following any abatement con-
ference conducted prior to the enactment of the Clean Air Act
Amendments of 1977 shall remain in effect with respect to any
pollutant for which no national ambient air quality standard has
been established under section 109 of this Act unless the Ad-
ministrator, after consultation with all agencies which were party
to the conference, rescinds any such recommendation on grounds
of obsolescence.
[PL 95-95, August 7, 1977]
APPENDIX G
CLEAN AIR ACT
42 U.S.C. § 7604
CITIZEN SUITS
Sec. 304. (a) Except as provided in subsection (b), any person
may commence a civil action on his own behalf-
(1)against any person (including (i) the United States, and (ii)
any other governmental instrumentality or agency to the extent
permitted by the Eleventh Amendment to the Constitution) who
is alleged to be in violation of (A) an emission standard or limita-
tion under this Act or (B) an order issued by the Administrator
or a State with respect to such a standard or limitation,
(2) against the Administrator where there is alleged a failure
of the Administrator to perform any act or duty under this Act
which is not discretionary with the Administrator, or
(3) against any person who proposes to construct or constructs
any new or modified major emitting facility without a permit
required under part C of title I (relating to significant deteriora-
tion of air quality or part D of title I (relating to nonattainment)
or who is alleged to be in violation of any condition of such
permit. ;
[PL 95-95, August 7, 1977; PL 95-190, November 16, 1977]
The district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to en-
force such an emission standard or limitation, or such an order,
or to order the Administrator to perform such act or duty, as
the case may be.
a neces letiadh + a ee eee
= s
t
A-50
APPENDIX H
ADMINISTRATIVE PROCEDURE ACT
5 U.S.C. § 553
§ 533. Rule making
(a) This section applies, according to the provisions thereof, ex-
cept to the extent that there is involved-
(1) a military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or
to public property, loans, grants, benefits, or contracts.
(b) General notice of proposed rule making shall be published
in the Federal Register, unless persons subject thereto are nam-
ed and either personally served or otherwise have actual notice
thereof in accordance with law. The notice shall include-
(1) a statement of the time, place, and nature of public rule
making proceedings;
(2) reference to the legal authority under which the rule is
proposed; and
(3) either the terms of substance of the proposed rule or a
description of the subjects and issues involved. Except when
notice or hearing is required by statute, this subsection does
not apply-
(A) to interpretative rules, general statements of policy, or
rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates
the finding and a brief statement of reasons therefor in the
rules issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public
interest.
(c) After notice required by this section, the agency shall give in-
terested persons an opportunity to participate in the rule making
A-51
through submission of written data, views, or arguments with
or without opportunity for oral presentation. After considera-
tion of the relevant matter presented, the agency shall incorporate
in the rules adopted a concise general statement of their basis
and purpose. When rules are required by statute to be made on
the record after opportunity for an agency hearing, sections 556
and 557 or this title [5 USCS §§ 556 and 557] apply instead of
this subsection. -
(d) The required publication or service of a substantive rule shall
be made not less than 30 days before its effective date, except —
ADMINISTRATIVE PROCEDURE
(1) a substantive rule which grants or recognizes an exemp-
tion or relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found
and published with the rule.
(e) Each agency shall give an interested person the right to peti-
tion for the issuance, amendment, or repeal of a rule.
(Sept. 6, 1966, P.L. 89-554, § 1, 80 Stat. 383.)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.