# Petition for Writ of Certiorari — New York v. Thomas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1873%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 482 U.S. 919 ## Text ee ee 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.) 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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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1873%3A1. Public record. Not legal advice.