Opposition Brief — New York v. Thomas

Supreme Court, US.

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oF :

Nos. 86-1373 and 86-1374 MAY 20 327

pO GRbiME PAN ION, JR,

CLERK

Iu the Supreme Court of the United Stites

OCTOBER TERM, 1986

STATE OF NEW YORK, ET AL., PETITIONERS

Vv.

LEE M. THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO,

ET AL., PETITIONERS

Vv.

LEE M. THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

CHARLES FRIED

Solicitor General

F. HENRY HABICHT II

Assistant Attorney General

DAVID ©. SHILTON

ANNE 8. ALMY

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether certain statements contained in letters

written by a former Administrator of the Environ-

mental Protection Agency in January 1981 (and ina

press release issued by EPA at the same time) gave

rise to a legally binding and non-discretionary duty

on the part of the current Administrator to take

regulatory action under Section 115 of the Clean Air

Act, 42 U.S.C. 7415, to address the problem of acid

deposition (‘‘acid rain”).

(I)

TABLE OF CONTENTS

Page

Opinions below ... ...... ea Se 1

I eal lnletitianalapeaiiacannaiienées 2

I as nadcnheaniaonmaananicbiaeions 2

is aisstanlaesiintcomae Per 2

IIE re a oe a Leela eee 14

a nab sheneniliananbindaanmnniasaltiadiae 23

TABLE OF AUTHORITIES

Cases:

Guardian Federal Savings & Loan v. Federal Sav-

ings & Loan Insurance Corp., 589 F.2d 658 (D.C.

REE eae SR ECON SCRE 21

Joseph v. United States Civil Service Comm’ n, 554

P.2e.3160:. (D.C. Cir. 1977). .............. 17

National Asphalt Pavement Ass’n V. Train, “539

ee IE UPBMED ehietcccerccksecsuscevsdutnsnncescees 21

Pacific Gas & Electric Co. vy. FPC, 506 F.2d 33

i ab aps eso ndealbdnbmipicied 17

Vermont Yankee Nuclear Power Corp. V. NRDC,

I I a ccneecins duane dnoponyuantobasienwetn . 17-18

Statutes:

Acid Precipitation Act of 1980, Tit. VII, 42 U.S.C.

I ois os clk cpencaccosieada kien Sb AS ATO Soe ec . 4,22

Gk eR EC eS |) oe 5

a scniinendoe 5

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go Lee OR | ee si bahais 5

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IV

Statutes—Continued: Page

Administrative Procedure Act, 5 U.S.C. 551 et

seq.:

Ls * SEE SIREN Ceriaenete te ee ee ee 13, 16

iia itinachincicincarsessanenbatiainsascsnadibgaulbeanssiloiaan 13

I I A is ieeeweentnligian 13, 17

Clean Air Act, 42 U.S.C. 7401 et seq. -....................... 2

i cael 2

f & | | (6 | anne caeeereeeonnemcere 2

YF 2S 8 | | RRR erereenseeecrepnaernnrer een 2.3

§ 110(a) (2) (H) (ii), 42 U.S.C. 7410(a) (2)

5 SSE SES ia aria eee SERRA SO 3

§ 110(a) (2) (E), 42 U.S.C. 7410(a) (2) (E).... 3

me Ry a eee ren ennner passim

Be le Re Bek fey |: 7 \ ee eenereee 3, 20

S 216(b), 48 US.C. T4165 (BD) ............................... 3-4

Oe ee ig MU Ws, PD ica nccternenes 4

SF 8 Raper teeerer meee 3,11

S 136(b), 428 U.S.C. T426(b) ....-........................... 11

I 2

§ 304(a) (2), 42 U.S.C. 7604(a) (2) 00. 10, 14, 22

Clean Air Act Amendments of 1965, Pub. L. No.

Rg ef ERR Simp iren gee Srey eee 19

Clean Air Act Amendments of 1977, Pub. L. No.

- £5 5 ¢ 9 & ) SS cereee e 19

Miscellaneous:

Acid Rain, 23 Weekly Comp. Pres. Doc. 269 (Mar.

a ok Ls dekh Siadacs ee

111 Cong. Rec. 25052 (1965) ...................... alonusiniian 20

Ree Cee, Bee, ae CROVO)...-<...22 0c. 20

yy. %& 4 — gc __ | RAIS Tine eeacenmnre sna snnaee 11

H.R. Rep. 95-294, 95th Cong., Ist Sess. (1977) ........ 20

A. Lewis & W. Davis, Joint Report of the Special

Envoys on Acid Rain (Jan. 1986) ........................ 4,6,7

United States-Canada Agreements, 22 Weekly

Comp. Pres. Doc. 388 (Mar. 19, 1986) ................. 7

United States-Canada Consultations on Acid Rain,

21 Weekly Comp. Pres. Doc. 318 (Mar. 17,

ERAT aS I Crt ante TRA AER Se ea IIS OS eal ke 6

Miscellaneous—Continued : Page

United States-Canada Report on Acid Rain:

22 Weekly Comp. Pres. Doc. 30 (Jan. 8,

BD aicncsciiastnennkecennssbiscsensidiinesiuneniniieiansapanaapsntmniens 6

22 Weekly Com. Pres. Doc. 389 (Mar. 19,

DID weiccecnsesckieciensctaccenignsnncincbacisnhnsteemsenminnatiancntntiecken 7

U.S. Dep’t of Justice, Attorney General’s Manual

on the Administrative Procedure Act (1947) ....... 16

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1373

STATE OF NEW YORK, ET AL., PETITIONERS

v.

LEE M. THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 86-1374

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO,

ET AL., PETITIONERS

Vv.

LEE M. THOMAS, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (86-1373 Pet.

App. Al-A8*) is reported at 802 F.2d 1443. The

1 Hereafter, all citations to “Pet. App.” refer to the appén-

dix to the petition for a writ of certiorari in No. 86-1373.

(1)

opinion of the district court (Pet. App. A9-A29) is

reported at 613 F. Supp. 1472.

JURISDICTION

The judgment of the court of appeals (Pet. App.

A44-A46) was entered on September 18, 1986, and

a timely petition for rehearing was denied on No-

vember 24, 1986 (Pet. App. A47). The petitions for

a writ of certiorari were filed on February 23, 1987.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATUTE INVOLVED

The relevant portions of Sections 115 and 304 of

the Clean Air Act, 42 U.S.C. 7415 and 7604, are

reproduced at Pet. App. A48-A4Q.

STATEMENT

The Clean Air Act establishes a joint state and fed-

eral program to control the Nation’s air pollution (42

U.S.C. 7401 et seg.). Sections 108 and 109 of the Act

grant authority to the Administrator of the Environ-

mental Protection Agency (EPA) to set national

ambient air quality standards designed to limit per-

missible concentrations of air pollutants (42 U.S.C.

7408, 7409). Section 110 requires each State to de-

velop a State Implementation Plan (SIP) capable of

ensuring that the ambient standards will be met and

maintained (42 U.S.C. 7410). Section 110 also re-

quires the SIP to “provide [] for revision, after

public hearings, of such plan * * * whenever the Ad-

ministrator finds on the basis of information avail-

able to him that the plan is substantially inadequate

to achieve the * * * standard which it implements or

to otherwise comply with any additional requirements

established under the Clean Air Act Amendments of

1977” (42 U.S.C. 7410(a) (2) (H) (ii) ).

Interstate air pollution is addressed by Sections 110

and 126 of the Act, 42 U.S.C. 7410 and 7426. Sec-

tion 110(a)(2)(E) requires each SIP to contain

measures to prohibit any major source within a State

from emitting any air pollutants in amounts that will

“prevent attainment or maintenance by another State

of any * * * standard,” interfere with another State’s

program to prevent significant deterioration of areas

having clean air, or interfere with visibility protec-

tion measures (42 U.S.C. 7410(a) (2) (E)). Section

126 of the Act in turn permits a State or other gov-

ernmental entity to petition the Administrator of

EPA to make a finding that sources in other States

are operating (or will operate) in violation of the sub-

stantive prohibitions of Section 110(a) (2) (E).

The Act also addresses the subject of international

air pollution. Specifically, Section 115 establishes a

mechanism that is applicable when the Administrator,

upon receipt of reports or studies of a 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” (42 U.S.C. 7415

(a)). Subsection (a) of Section 115 provides that in

sueh circumstances, the Administrator “shall give

fofmal notification thereof to the Governor of the

State in which such emissions originate” (42 U.S.C.

7415(a)). Subsection (b) then provides that this

notification “shall be deemed to be a finding under

Section 7410(a)(2)(H) (ii) of this title which re-

quires a plan revision with respect to so much of the

applicable implementation plan as is inadequate to

- «

prevent or eliminate the endangerment” (42 U.S.C.

7415(b)). Finally, Subsection (c) limits application

of this procedure to a foreign country that the Ad-

ministrator determines has given the United States

“essentially the same rights” as are afforded by Sec-

tion 115 (42 U.S.C. 7415(c) ).

2.a. The Clean Air Act makes no specific reference

to the phenomenon known as “acid rain’”—or, more

generally, as acid deposition.? Acid deposition is be-

lieved to occur when emissions of sulfur dioxide,

nitrogen oxides, and possibly other compounds are

transported through the atmosphere, transformed by

atmospheric chemical processes, and then deposited on

the Earth’s surface in either wet or dry form. The

amount of acid material deposited in a particular

area is thought to depend upon the complex inter-

action of these four factors—emission, transportation,

transformation, and deposition. Furthermore, the sen-

sitivity of a given area to acidification is believed to

influence whether and to what extent environmental

degradation may occur. The acid deposition phenom-

enon, involving these extremely complex processes as

well as significant uncertainties, is a problem in both

the United States and Canada. Pet. App. A4, A45-

A46; A. Lewis & W. Davis, Joint Report of the Spe-

cial Envoys on Acid Rain 9-20 (Jan. 1986) '[herein-

after Report], discussed at pages 6-7, infra.

b. Although the Clean Air Act does not explicitly

mention the issue of acid deposition, Congress did

address that issue in the Acid Precipitation Act of

1980, Tit. VII, 42 U.S.C. 8901 et seg. In the latter

* We shall use the term “acid deposition” rather than “acid

rain,” because acid material may be deposited in either wet or

dry form.

\.

5

Act, Congress found that acid precipitation “could

contribute to the increasing pollution of natural and

man-made water systems * * *, as well as cause

other adverse effects, and “could affect areas distant

from sources and thus involve issues of national and

international policy” (42 U.S.C. 8901(a) (1)-(6)).

Congress therefore established a 10-year comprehen-

sive research plan to be carried out by an inter-agency

body known as the Acid Precipitation Task Force (42

U.S.C. 8902). Congress specified that the Task

Force’s plan shall include programs for, inter alia,

“identifying the sources of atmospheric emissions con-

tributing to acid precipitation,” determining “the

processes by which atmospheric emissions are trans-

formed into acid precipitation,” developing “models

to enable prediction of longrange transport of sub-

stances causing acid precipitation,” and identifying

“areas at risk” from acid precipitation (42 U.S.C.

8903(b) (1), (8), (4), and (5)). In addition, the

plan must include programs for cooperation “with

the affected and contributing States and with other

sovereign nations having a commonality of interests”’

(42 U.S.C. 8908 (b) (11) ).

ec. The United States and Canada also. have taken

bilateral steps to address the acid deposition issue. In

1978, the two Nations established Bilateral Research

Consultation Groups to report on the extent and sig-

nificance of long-range air pollution problems. PX J.

Thereafter, on August 5, 1980, the two Nations en-

tered into a Memorandum of Intent “to develop a bi-

lateral agreement * * * to combat transboundary air

pollution.” C.A. App. 64-67. Scientific and technical

working groups were established to furnish advice in

that process. Although a bilateral air quality agree-

ment was not reached, there was considerable scien-

6

tific and diplomatic activity pursuant to the Memo-

randum of Intent. See, e.g., id. at 140-177.

In March 1985, following their annual meeting to

discuss various bilateral issues, President Reagan and

Prime Minister Mulroney jointly recognized acid

deposition as a serious concern affecting bilateral rela-

tions. In response to that recognition, the President

and the Prime Minister each agreed to appoint a

Special Envoy to examine the issue and to report back

before the next meeting of the President and Prime

Minister in the Spring of 1986. The Special Envoys-

Andrew Lewis, the former Secretary of Transporta-

tion, and William Davis, the former Premier of On-

tario—were charged with taking steps to enhance co-

operation in research and the exchange of informa-

tion, to identify efforts to improve the environment of

the two Nations, and to “pursue consultation on laws

and regulations that bear on pollutants thought to be

linked to acid rain.” United States-Canada Consulta-

tions on Acid Rain, 21 Weekly Comp. Pres. Doc. 318

(Mar. 17, 1985).

The Special Envoys submitted ‘their report to the

President and Prime Minister on January 8, 1986.

United States-Canada Report on Acid Rain, 22 Weekly

Comp. Pres. Doc. 30. The report, known as the Joint

Report of the Special Envoys on Acid Rain [herein-

after Report], is reproduced as an addendum to the

government’s brief in the court of appeals. The Re-

port explains that, under the Clean Air Act, the

United states has taken significant steps to control

emissions of sulfur dioxide and nitrogen oxides, by

imposing ambient air quality standards and by im-

posing emission standards for new stationary sources

(such as powerplants and industrial boilers) and new

mobile sources (such as automobiles and light trucks).

These measures have resulted in a reduction of 28%

7

in emissions of sulfur dioxide since 1973 and the pre-

vention of any increase in emissions of nitrogen ox-

ides since 1970. Id. at 20-22. However, recognizing

that the currently available options for further reduc-

ing emissions that contribute to acid deposition suffer

from serious technical limitations or socioeconomic

costs (id. at 8, 23-24), the Report does not recommend

that extensive new control programs be initiated at

this time. Instead, the Report recommends that the

United States Government and businesses commit a

total of $5 billion for development and demonstration

of control technologies, and that the United States

and Canada continue their cooperative efforts with

respect to acid deposition (id. at 41-51).

The President and Prime Minister endorsed the

Report and its recommendations at their annual meet-

ing in Washington on March 19, 1986. United States-

Canada Agreements, 22 Weekly Comp. Pres. Doc.

388-389. A statement issued by the White House in

connection with that endorsement reported that in

fiseal years 1981 through 1985, $2.2 billion in re-

search funds had been allocated in the United States

to develop technologies for the cleaner utilization

of coal, and that additional public and industry

funding would be forthcoming for those purposes

(22 Weekly Comp. Pres. Doc. 389-390). More re-

cently, on March 18, 1987, the President announced

several additional steps to ensure that the United

States continues to work closely with the Canadian

Government to seek a solution to the acid rain prob-

lem. Acid Rain, 23 Weekly Comp. Pres. Doc. 269-270

(Mar. 18, 1987). The President stated that he would

request from Congress the appropriation of the full

$2.5 billion recommended by the Special Envoys to

fund the Federal Government’s share of a joint re- ©

search program with industry. The President also

8

requested the Vice President to have the Task Force

on Regulatory Relief undertake a study of incentives

and disincentives to the deployment of new emission

control technologies and possible regulatory revisions

to address that subject. The findings of that study,

along with any proposed revisions in existing regula-

tions, are to be reported to the President within 6

months. Ibid.

3. This case arises out of the efforts by petitioners

to require the Administrator of EPA to address the

acid rain issue through immediate regulatory action

under Section 115 of the Clean Air Act, without wait-

ing for concrete results of the substantial research

efforts that have been undertaken by the United

States in accordance with the Acid Precipitation Act

of 1980 and the bilateral discussions between the

United States and Canadian Governments on the acid

deposition issue. Petitioners contend that several let-

ters and a press release written by a former Ad-

ministrator of EPA in January 1981—which, as the

court of appeals observed, was “only days before

President Reagan took office” (Pet. App. A8)—im-

pose a mandatory duty on the current Administrator

to take regulatory action.

a. On January 138, 1981, the outgoing Adminis-

trator of EPA, Douglas Costle, sent letters to the

then-Secretary of State, Edmund Muskie, and to Sen-

ator Mitchell of Maine regarding the acid deposition

issue (Pet. App. A30-A41).. In his letter to Secretary

Muskie, Administrator Costle reviewed recently en-

acted Canadian legislation and concluded that it “pro-

vides 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”

(id. at A380). Costle also noted that he had reviewed

9

the Seventh Annual Report on Great Lakes Water

Quality, which had been issued by the International

Joint Commission in October 1980. He stated that

that report “confirms that acid deposition is endanger-

ing public welfare in the United States and Canada

and that United States and Canadian sources con-

tribute to the problem not only in the country where

they are located but also in the neighboring country”

(id. at A383).

Costle elaborated on these views in his letter to

Senator Mitchell. He observed that “[s]urveys con-

ducted over the past several years establish that there

is a significant flow of these pollutants across the

United States-Canadian border in both directions”

(Pet. App. A386). “Thus,” he stated, “we can say

with some certainty that emission sources in the

United States contribute significantly to the atmos-

pheric leadings over some sensitive areas in Canada”

(ibid.). Against this background, Costle expressed

his “belie[f] that the Section 115 authority could ap-

propriately be used to develop solutions” to the prob-

lem (ibid.). Costle recognized, however, that “Sec-

tion 115 is activated by giving formal notification to

the Governor of a specific State” and that “EPA has

not yet determined which State or States will require

notification under Section 115” (id. at A40). He

further stressed that EPA would be required to “make

extraordinary efforts to consult and cooperate with

affected States in this process,” because the acid rain

problem “crosses numerous State boundaries” and be-

cause “there are no established numerical standards

by which to assess the adequacy of acid deposition

mitigation measures” (id. at A41).

b. Administrator Costle’s two letters were sent

without public uotice, opportunity for public comment,

or other procedural formalities. However, EPA did

10

issue a press release on January 16, 1981, which

summarized the contents of the letters. In the Spring

of 1981, Governor Rhodes of Ohio wrote to the new

EPA Administrator, Anne Gorsuch, seeking clarifica-

tion of the status of the press release. By letter dated

September 22, 1981, Administrator Gorsuch re-

sponded by stating that in her view, “[t]he only way

to initiate a section 115 proceeding is by making the

necessary findings under subsection 115(a) and for-

mally notifying the Governor of a State” (C.A. App.

137). For this reason, she concluded, “no Section 115

proceeding was commenced” by the January 1981

press release (ibid.). Administrator Gorsuch further

explained that the press release was only “a general

announcement of former Administrator Costle’s belief

’ that some preconditions to action under section 115

had been met” (ibid.).*

ce. By letter dated January 12, 1984, the peti-

tioners in No. 86-1373 gave notice of their intent to

sue the Administrator of EPA under Section 304 (a)

(2) of the Clean Air Act, 42 U.S.C. 7604(a) (2),

which permits such suits where “there is alleged a

failure of the Administrator to perform any act or

duty under [the Clean Air Act] which is not discre-

tionary with the Administrator.” Petitioners main-

3On March 17, 1981, the State of Ohio and two electric

utilities filed a petition for review in the United States Court

of Appeals for the District of Columbia Circuit, challenging

the letters and press release to the extent that they were in-

tended to constitute official agency action. Cincinnati Gas &

Electric Co. v. EPA, No. 81-1311 (D.C. Cir.). On October 19,

1981, the court of appeals dismissed the petitions on ripeness

grounds. After the district court’s decision in this case, sev-

eral new petitions seeking review of the press release aud

Costle letters were filed. Alabama Power Co. v. EPA, No.

85-1606 (D.C. Cir.). Those petitions are still pending before

the court of appeals.

11

tained that Administrator Costle’s statements in the

1981 letters and press release had triggered a manda-

tory duty on the part of the present Administrator to

notify the appropriate States under Section 115 of

the Clean Air Act that they must modify their state

implementation plans. Then-Administrator Ruckels-

haus replied in a letter dated March 13, 1984, to

Robert Abrams, the Attorney General of New York

(C.A. App. 29):

I do not believe that former : liabatabaee Costle

began a proceeding under section 115 of the

Clean Air Act, though he may have made some

of the findings that are necessary to such a pro-

ceeding. The most that can be said is that I

might have discretion to begin such a proceeding.

4.a. In their complaint filed in district court on

March 20, 1984, petitioners sought to have the court

order the Administrator to determine which States

were contributing to acid deposition in Canada and

formally to notify them, within 30 days, that they

must modify their SIPs pursuant to Section 115.* On

4The complaint also requested that the Administrator be

ordered to take action on petitions filed by three northeastern

States in 1980 and 1981 requesting the Administrator to make

a finding, pursuant to Section 126(b) of the Act, 42 U.S.C.

7426(b), that emissions from out-of-state sources were pre-

venting attainment of air quality standards. The district

court granted petitioners’ motion for summary judgment on

the Section 126 claims on October 5, 1984. On December 10,

1984, EPA published its final decision denying the Section 126

petitions at issue. 49 Fed. Reg. 48152. The States of New

York, Pennsylvania, and Maine, joined by six other “arties,

petitioned for review of this final agency action, and those

petitions are still pending in the court of appeals. New York

v. United States Environmental Protection Agency, No. 84-

1592 (D.C. Cir. argued Dec. 12, 1985).

12

July 26, 1985, the district court granted summary

judgment in favor of petitioners, concluding that the

International Joint Commission Report and the Costle

letters satisfied all the prerequisites to the existence

of a mandatory duty under Section 115 of the Act

(Pet. App. A9-A29). Relying on the word “shall” in

that Section, the court found that the Administrator

had a mandatory duty to determine which States

would have to revise their SIPs to prevent or elimi-

nate the endangerment in Canada—a task the court

characterized as merely “incidental to giving formal

notification” (id. at A24 n.*). The district court

therefore ordered EPA to determine, within 90 days,

whether Costle’s finding of reciprocity remained via-

ble, and, within 180 days thereafter, to ‘formally

notify[] the governors of any state in which such

emissions originate” (7d. at A43).°

b. A unanimous panel of the court of appeals re-

versed, holding that the Costle letters could not serve

as the basis for judicial relief (Pet. App. Al-A8).°

The court first noted that the present case involves an

“unusual statute executed in an unexpected manner”

5 The Administrator filed a motion to modify the judg-

ment, asserting that the 180-day period allowed by the court

for identification and notification of the States was clearly

insufficient. A declaration of the Acting Assistant Adminis-

trator for the Office of Air and Radiation estimated that the

necessary analysis, program design, and notification would

take a minimum of three years. By order dated September 20,

1985, the district court denied the motion to modify the judg-

ment. However, the district court later granted a stay pending

appeal of the portion of the judgment requiring formal notifi-

cation of the States.

® The court of appeals granted the petitioners in No. 86-1374

leave to intervene on appeal.

13

(id. at A5). The court explained that Section 115

requires the Administrator to give formal notice of

needed SIP revisions “‘to ‘the Governor’ of ‘the State’ ”

responsible for the international air pollution prob-

lem (Pet. App. A5 (emphasis added) ) ; but, the court

noted, “[i]n 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” (ibid.). If

the statute had been executed in the manner Congress

expected, the court concluded, the notice of endanger- .

ment, the reciprocity finding, and the SIP revision

notices would have been issued simultaneously, and

comment would have been requested and received on

all of those issues at that time.

Here, however, because the actions of Administrator

Costle separated the issues of endangerment and re-

ciprocity from the identification of the responsible :

States, the court’s task was to determine whether the

findings that Costle did make “legally bind the cur-

rent Administrator to issue SIP notices” (Pet. App.

A5). The court held that they did not (ibid.). The

court explained that if the findings were to bind sub-

sequent EPA Administrators to issue SIP notices, the

agency’s statement, would constitute a “rule” within

the meaning of the Administrative Procedure Act, 5

U.S.C. 551(4), and it could be given binding effect

only if it had been promulgated in compliance with

the applicable notice and comment procedures in 5

U.S.C. 558, unless one of the exceptions of 5 U.S.C.

553(b)(A) was applicable (Pet. App. A6). The

court found that the exceptions for “interpretative

rules,” “general statements of policy,” and “agency

organization, procedure, or practice” were inapplica-

ble (2bid.). Accordingly, the court held “that if Ad-

ministrator Costle’s findings left the EPA no alterna-

14

tive but to issue SIP notices * * * —if they forced

the EPA to take direct and substantial regulatory

actions—they could not be promulgated without

notice-and-comment procedures” (id. at A7 (emphasis

in original) ). For this reason, the court concluded

that the findings do not create a non-discretionary

duty on the part of the Administrator to issue notices

to certain States, and therefore “cannot be the basis

for the judicial relief [petitioners] seek” in this suit

under 42 U.S.C. 7604(a)(2) (Pet. App. A8).

ARGUMENT

The decision of the court of appeals on the narrow

question presented under the Administrative Pro-

cedure Act is correct and does not conflict with any

decision of this Court or of any other court of appeals.

Moreover, during the six years since the date of the

letters and press release upon which petitioners rely,

the subject of acid deposition has been—and con-

tinues to be—the focus of extensive bilateral discus-

sions and study by the Goveyyfments of the United

States and Canada. Accordingly, review by this

Court is not warranted.

1. This case arises out of a disagreement concern-

ing the appropriate course of action to address the

exceedingly difficult and complex problem of acid

deposition on the North American continent—a prob-

lem that has various sources and effects in both the

United States and Canada and that therefore will re-

quire reciprocal efforts and continued cooperation by

the two Nations. In 1981, then-Administrator Costle

made a tentative determination that “the Section 115

authority could * * * be used to develop solutions”

to the acid deposition problem (Pet. App. A36).

Costle was careful to note, however, that Section 115

15

is actually activated only by giving formal notifica-

tion to the Governor of a specific State and that EPA

“has not yet determined which State or States will

require notification” (Pet. App. A40). Costle’s suc-

cessors—Administrators Gorsuch, Ruckelshaus, and

Thomas—have consistently interpreted his statements

in 1981 as tentative or partial conclusions regarding

the pre-conditions for a Section 115 proceeding, there-

by leaving them with the discretion to determine

whether, when, or how such a proceeding should com-

mence. Costle’s successors have thus far concluded

that such a course would be unwise, because “any

attempt to use Section 115 to control acid rain would

bring about extensive regulatory and judicial pro-

ceedings that would create formidable obstacles to

any practical results,” and because “acid rain is a

problem with such complexities and implications that

any approach to it will almost certainly require leg-

islative debate and Congressional enactment to be

generally acceptable” (Letter from Administrator

Ruckelshaus to New York Attorney General Abrams

(C.A. App. 28-29) ).

As Administrator Costle recognized, his statements

in 1981 did not begin to address the complexities in-

volved in tracing the cause of a certain portion of

acid deposition in Canada to particular States and

sources in the United States and in the quantification

and allocation of emission reductions among States.

Yet petitioners contend that Costle’s general and

tentative conclusions were sufficient to trigger a non-

discretionary duty on the part of the present EPA

Administrator to perform those very tasks as a mere

incident to notifying various States (which peti-

tioners do not identify) that they must revise their

SIPs. There is no indication that Congress intended

16

Section 115 to operate in such a rigid yet open-ended

fashion—much less that Congress intended to create

a judicially enforceable, mandatory duty to proceed

as petitioners urge in the face of such indefinite cir-

cumstances. To the contrary, as the court of appeals

observed (Pet. App. A5), Section 115 refers to the

formal notification of “the Governor of the State in

which the emissions originate” (emphasis added),

thereby indicating that the nature and extent of a

particular State’s contribution should be ascertained,

at least in general terms, before proceedings are com-

menced under that Section.

2. Quite aside from the difficulties occasioned by

the terms of Section 115 standing alone, the Ad-

ministrative Procedure Act precludes the relief peti-

tioners seek. Because Administrator Costle did not

follow the rulemaking procedures of the APA when

he made the statements at issue here, and because no

exception to those procedures applies in this setting,

the Costle letters and press release do not give rise to

a judicially enforceable, non-discretionary duty on the

part of the current Administrator to commence pro-

ceedings under Section 115.

The court of appeals was clearly correct in holding

(Pet. App. A7) that, if Costle’s statements indeed

have the force of law ascribed to them by petitioners,

they constituted a “rule” within the meaning of the

APA. The Administrative Procedure Act defines a

rule as “an agency statement of general or particular

applicability and future effect designed to implement

* * * or prescribe Jaw or policy” (5 U.S.C. 551(4)).

See also U.S. Dep’t of Justice, Attorney General’s

Manual on the Administrative Procedure Act 14

(1947) [hereinafter Attorney General’s Manual].

Moreover, contrary to petitioners’ passing suggestion

17

(86-1373 Pet. 18 n.27), if Costle’s statements have

this legal effect of binding the EPA to a certain

course of action, then the exceptions to the notice and

comment rulemaking procedures for “interpretative

rules” and “general statement of policy” clearly do

not apply.” Those exceptions were included because

general statements of policy and interpretation do not

establish legal requirements independent of the stat-

utes and existing regulations that the agency ad-

ministers; they merely advise the public of the agen-

ey’s construction of a statute or regulation or an-

nounce what the agency intends to establish as its

policy in the administration of such a statute or regu-

lation. See Attorney General’s Manual 30 n.3; Joseph

v. United States Civil Service Comm’n, 554 F.2d 1140,

1153 n.24 (D.C. Cir. 1977); Pacific Gas & Electric

Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974). Such

rules do not create new standards or requirements

that have the force of law, as regards either the

agency or private parties. They therefore cannot be

thought to establish a non-discretionary duty on the

part of the Administrator to take further action.

3. Petitioners argue (86-1373 Pet. 16; 86-1374

Pet. 17) that the court of appeals’ decision conflicts

with Vermont Yankee Nuclear Power Corp. v. NRDC,

? Petitioners do not seriously contest the court of appeals’

conclusion (Pet. App. A6) that none of the exceptions to the

notice and comment requirements is applicable here. The

petitioners in No. 86-1373 merely state in a footnote (Pet. 18

n.27) that they reserve the right, if certiorari is granted, to

argue in the alternative that findings under Section 115 are

exempt from notice and comment requirements as “general

statements of policy.” 5 U.S.C. 553(b)(A). However, be-

cause petitioners do not actually seek review of the court of

appeals’ holding on that question, it is not properly presented

here.

18

435 U.S. 519 (1978). In Vermont Yankee, this Court

held that “[a]bsent constitutional constraints or ex-

tremely compelling circumstances,” courts are not free

to require administrative agencies to employ proce-

dures beyond those mandated by the Administrative

Procedure Act or other applicable statutes (435 U.S.

at 543-547). In the present case, however, the court

of appeals did not require EPA, over its objection, to

follow any particular procedures under Section 115;

it merely required EPA to follow the minimal in-

formal rulemaking procedures of the APA. In par-

ticular, the court of appeals did not require EPA to

follow bifurcated rulemaking procedures under that

Section, giving notice and seeking comments first on

the endangerment and reciprocity issues and then

later on proposed revisions in the SIPs of various

States. The Administrator therefore remains free

under the court of appeals’ decision to combine the

notice and comment procedures on all of those issues

in a single proceeding, should he invoke the Section

115 mechanism in the future.

The court of appeals merely found that 7f Admin-

istrator Costle’s 1981 findings were to be given the

legally binding effect on his successors that petition-

ers (but not EPA) claimed, those findings would con-

stitute a “rule” within the meaning of the Adminis-

trative Procedure Act and therefore could be given

binding effect only if they had been promulgated in

accordance with the rulemaking procedures in that

Act. That holding in no way interferes with the im-

plementation of Section 115 by the Administrator,

who did not seek to give binding effiect to the Costle

letters and press release. The decision below thus is

nothing more than a routine application of the statu-

tory requirements of the APA to an individual in-

19

stance of agency action. It does not result in the uni-

lateral imposition of additional procedural require-

ments by the courts, which was condemned in Ver-

mont Yankee.

4. Petitioners also contend (86-1373 Pet. 20-21)

that the court of appeals’ decision undercuts the effec-

tiveness of a number of environmental statutes that

include triggering mechanisms for rulemaking. How:

ever, as we have just explained, the court of appeals

did not impose additional requirements in the admin-

istration even of Section 115. Moreover, as the court

of appeals observed, the present case involves “an

unusual statute executed in an unexpected manner”

(Pet. App. A5). Section 115 was originally enacted

in 1965 as part of the Clean Air Act Amendments

of that year (79 Stat. 995). The Section subsequently

was amended in the Clean Air Act Amendments of

1977, Pub. L. No. 95-95, § 114, 91 Stat. 710. Under

the earlier version of the statute, upon a finding that

emissions from a source in the United States en-

dangered the health or welfare of persons in a for-

eign country, notification was to be given to “the

air pollution control agency of the municipality where

such discharge or discharges originate,” as well as

to the “State in which such municipality is located”

(79 Stat. 995). After notification, a conference was

to be convened, to which the relevant foreign nation

would be invited (ibid.). This predecessor to the

current Section 115 indicates that it was primarily

intended to provide a tailored response to identifiable

sources of air pollution. The 1977 Amendments speci-

-fied a different remedial response to international air

pollution, by providing for the modification of the

state implementation plan, instead of an enforcement

conference, if there was transboundary pollution

20

“which may reasonably be anticipated to endanger

public health and welfare.” 42 U.S.C. 7415(a). But

there is no indication in the text of the current ver-

sion of Section 115, as there was none in the predeces-

sor text, that Congress foresaw resort to that Section

in the context of a multifaceted, multi-source prob-

lem such as acid deposition.

Moreover, the legislative history of these provisions

amply demonstrates that Congress in fact assumed

that the source of the offending emissions would be

discrete and identified before the mechanisms of Sec-

tion 115 were employed. 111 Cong. Rec. 25052

(1965) (remarks of Rep. Harris). And, although the

Section was amended in 1977, at a time when the

acid deposition problem was well known, highly con-

troversial and acknowl d to be a difficult subject,

there is no suggestion in the legislative history of the

amendment to Section 115 that its provisions should

be used to address the problem.* Nor did Congress

add any provisions to Section 115—such as criteria

or guidelines for identification of responsible sources

and allocation of emission reductions among those

sources—that might support the notion that Congress

intended to impose a mandatory duty on the Admin-

istrator to invoke Section 115 to attack a problem

such as acid deposition.

8 The committee reports on the 1977 Amendments speak of

acid rain in connection with use of tall stacks (see H.R. Rep.

95-294, 95th Cong., Ist Sess. 85-86 (1977) ) and provisions for

the prevention of significant deterioration (id. at 130-132).

Congress also knew that no method existed for linking emis-

sions in a particular area with acid deposition in another

area. See 122 Cong. Rec. 23964 (1976) (remarks of Senator

Muskie).

21

Accordingly, this case does not present the question

of whether the threshold findings that trigger the

obligation to conduct a rulemaking proceeding under

various other environmental statutes are themselves

rules that must be promulgated in accordance with

notice and comment requirements.’ Instead, this case

involves findings that are claimed to commit EPA

to using the procedures of Section 115 to attempt to

rectify the problem of acid deposition. As demon-

strated above, in order to permit Section 115 to be

used for that purpose, there are significant policy

and technical determinations of a discretionary na-

ture that would have to be made even after the Ad-

ministrator had made findings of endangerment and

reciprocity. Accordingly, if Administrator Costle’s

findings were to be construed as a commitment that

EPA, as a matter of policy, would use the procedures

of Section 115 and that succeeding Administrators

were to be denied the discretion to determine as a

matter of policy that such a course would be unwise

or counterproductive, then at the very least any find-

ings could be given that extraordinary effect only if

they were promulgated after following the notice and

comment procedures that are a necessary prerequisite

to an agency’s making a binding commitment to a

particular regulatory course of action. See Guardian

Federal Savings & Loan v. Federal Savings & Loan

Insurance Corp., 589 F.2d 658, 666-667 (D.C. Cir.

1978).

® We note, as did the court of appeals (Pet. App. A5), that

in many instances the threshold findings and the proposed

regulations are announced simultaneously, and comments on

both are solicited and received together. See National Asphalt

Pavement Ass’n V. Train, 589 F.2d 775 (D.C. Cir. 1976).

22

5. Finally, the court of appeals’ decision did not, as

petitioners assert (86-1373 Pet. 15), “void” Admin-

istrator Costle’s determinations regarding harm and

reciprocity. The court merely ruled that those findings

could not support the judicial relief requested by peti-

tioners under Section 304(a) (2) of the Act, 42 U.S.C.

7604(a) (2) (Pet. App. A8). As then-Administrator

Ruckelshaus stated in response to petitioners’ notice

of intent to sue in 1984, and as affirmed by the court

of appeals (Pet. App. A8), EPA retains the discretion

to commence a proceeding under Section 115 to ad-

dress the acid deposition problem if it determines that

the technical and policy problems involved are amen-

able to resolution in such a proceeding. In the mean-

time, the Agency is acting to fulfill the congressional

mandate, embodied in the Acid Precipitation Act of

1980, 42 U.S.C. 8901 et seq., to develop the necessary

scientific data to inform future efforts to resolve the

acid deposition problem. At the same time, the United

States and Canada are proceeding with their bilateral

efforts to address that issue—which include, for this

Nation’s part, a commitment to seek the dedication

of $2.5 billion in public funds and an additional $2.5

billion in private funds to develop appropriate control

technology. In these circumstances, review by this

Court would not contribute significantly to the reso-

lution of the acid deposition problem. Nor would it

resolve any question of wider importance in the exe-

cution of this Nation’s environmental laws.

Pe le

23

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

F’. HENRY HABICHT II

Assistant Attorney General

DAVID C. SHILTON

ANNE S. ALMY

Attorneys

MAY 1987

RW UV. S$. GOVERNMENT PRINTING OFFicE; 1987 181483 40345

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