# Reply Brief — New York v. Thomas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1873%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1987 - **Citation:** 482 U.S. 919 ## Text Nos. 86-1373 and 86-1374 AS AND Supreme Court, U.S. EILED JUN 1 1987 IN THE Supreme Court of the United States OCTOBER TERM, 1986 > STATE OF NEW YORK, et al. _ Petitioners, Lee M. THOMAS, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, et al., Petitioners, Lee M. THOMAS, ADMINISTRATOR, UNITED STATES ENVIRON- MENTAL PROTECTION AGENCY, Respondent. ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT REPLY BRIEF FOR PETITIONERS O. PETER SHERWOOD Solicitor General (Counsel of Record) PeTeR H. SCHIFF Deputy Solicitor General DAviID R. WooLEy MICHAEL J. MOORE Assistant Attorneys General New York State Department of Law The Capitol Albany, New York 12224 (S518) 474-4819 Attorneys for Petitioners State of New York, et al. (Counsel continued on inside cover) BRUCE J. TERRIS (Counsel of Record) JAMES M. HECKER TERRIS, EDGECOMBE, HECKER & WAYNE 1121 12th Street, N.W. Washington, D.C. 20005 (202) 682-2100 RODERICK M. MCLEOD, Q.C. Deputy Minister Ministry of the Environment 135 St. Clair Avenue West Toronto, Ontario M4V_ 1P5 (416) 323-4272 Attorneys for Petitioners Her Majesty the Queen in Right of Ontario, et al. 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 EDWARDS Attorney General of New Jersey JAMES E. ONEIL Attorney General of Rhode Island JOSEPH I. LIEBERMAN Attorney General of Connecticut STEPHEN E. MERRILL Attorney General of New Hampshire HOWARD FOx Attorney for private party petitioners Sierra Club, et al. Nos. 86-1373 and 86-1374 IN THE Supreme Court of the United States OCTOBER TERM, 1986 2 STATE OF NEW YORK, et al. Petitioners, Vv. LEE M. THOMAS, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, et ai., Petitioners, Vv. LEE M. THOMAS, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. . ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT REPLY BRIEF FOR PETITIONERS 1. Inits opposition, the federal respondent (hereafter referred to as “EPA”) virtually ignores the unusual disposition of petition- ers’ claim by the court of appeals’ decision in this case. Petition- ers brought a citizen suit under Section 304 of the Clean Air Act contending that the former Administrator of the U.S. Environ- mental Protection Agency (EPA), Douglas Costle, made two findings which triggered a mandatory duty under Section 115 of that Act to take further regulatory action to abate international air pollution. The court of appeals held that that asserted duty was unenforceable solely because of the absence of notice and comment on those findings under the Administrative Procedure Act. Pet. No. 86-1373, App. A, pp. A-7 to A-8. It expressly 2 refused to decide whether, assuming the Costle findings were procedurally correct, they gave rise to a mandatory duty on EPA under Section IIS. Jbid. Nevertheless, EPA defines the question presented as whether the Costle findings “gave rise to a legally binding and nondiscre- tionary duty on the part of the current Administrator to take regulatory action under Section IIS * * *,” regardless of whether they were preceded by notice and comment. Fed. Opp., Question Presented. While that is a fair statement of the ultimate issue in this case, it avoids the threshold procedural question under the APA that the court of appeals found to be dispositive.' Most of the arguments raised by EPA are simply irrelevant to both this threshold issue and the ultimate issue concerning Sec- tion IIS of the Clean Air Act. For example, it is irrelevant whether acid rain is the subject of bilateral discussions between United States and Canada (Fed. Opp. 5-7, 14, 22), whether EPA is also researching acid rain under the Acid Precipitation Act of 1980° (id. at 4-5, 22), and whether former Administrator Costle’s successors decided it was “unwise” to use Section II5 to control acid rain because of its “complexities and uncertainties” (id. at 15, 22). In addition, although arguments whether Congress intended Section IIS to apply to a multi-source problem such as 1. The industry respondents argue that despite Congress’ choice of the word “belief” to describe the type of threshold finding of endangerment necessary under the statute, such beliefs can not create future legal obligations unless they are formalized through rulemaking procedures. Ind. Opp. 13-15. Otherwise, they argue, even a stray remark by the Administrator in the hallway outside his office could trigger a duty to undertake regulatory action. Jd. at 14. However, the word “belief,” in the context used by Congress here, obviously requires both an objective manifestation of assent and the intent to convey it. We demon- strated in our petitions (No. 86-1373, pp. 5-6; No. 86-1374, pp. 7-8) that Costle’s findings in the present case satisfy both requirements. Indeed, Costle expressly stated that his findings were “adequate to warrant the initiation of a Section 15 based plan revision process in appropriate States” (Pet. No. 86-1373, App. B, p. A-41). In any event, this argument, like those of EPA, was not reached by the court below and is not relevant to the threshold issue before this Court. It provides no basis for the denial of a writ of certiorari. 2. This Act is merely a research funding bill which specifically states that it is not intended to restrict, modify, or expand the scope of existing law. 42 U.S.C. 8904(b). 3 acid rain (id. at 4, 19-20), or whether a mandatory duty arises under Section II5 only after EPA identifies and notifies the offend- ing states (id. at 9-10, 14-16) relate to the ultimate issue of whether a mandatory duty exists under Section II5, they are irrelevant to the court of appeals’ decision that notice and com- ment are required on the Costle findings. - 2. After these irrelevant arguments are excised from EPA’s opposition, its remaining arguments reveal a fundamental unwill- ingness to accept the full consequences of the court of appeals’ decision. Thus, EPA states (Fed. Opp. 21): [T]his case does not present the question of whether the threshold findings that trigger the obligation to conduct a rulemaking under various other environmental statutes are themselves rules that must be promulgated in accord- ance with notice and comment requirements. Instead, EPA contends that these rulemaking procedures only apply to the attempted use of Section II5 of the Clean Air Act “to rectify the problem of acid deposition.” /bid.* EPA presents no legal basis for such a distinction, and there is none. The application of APA rulemaking procedures obviously does not depend on the particular type of pollution addressed by a threshold finding. A rule under the APA is defined in terms of the applicability and effect of agency findings, not their subject matter. 5 U.S.C. 551(4). q EPA’s argument is therefore nothing less than a strained attempt to justify the application of a legal principle in the pre- sent case and deny its applicability to all similar cases in the future. We submit that EPA has taken this approach because it simply cannot accept the full consequences of the court of appeals’ decision. As Ontario has explained in its petition (No. 86-1374, pp. 14-15), that decision would mean that EPA would 3. By secking to distinguish threshold findings under Section II5 of the Clean Air Act with similar such findings “under various other environmental statutes” (Fed. Opp. 21), EPA assumes that the court of appeals’ decision applies only to threshold findings under one section of the Clean Air Act. However, as New York has demonstrated in its petition (No. 86-1373, pp. 20-21), similar thresh- old findings are contained in many other sections of the Clean Air Act itself. 4 have to conduct rulemakings to issue threshold findings under numerous other provisions of the Clean Air Act and many of the other environmental statutes it administers. By simply stating as an ipse dixit that the decision below does not apply to other indistinguishable statutory provisions, EPA implicitly recognizes that such a legal principle would seriously interfere with its regu- latory efforts by multiplying the number of rulemaking proceed- ings necessary to issue a final rule. 3. Neither EPA nor industry have persuasively explained the linchpin of the court of appeals’ decision, i.e., that agency findings are rules under the APA if their only effect is to trigger a statu- tory duty to take further regulatory action specified by Congress. As we have shown in our petitions (No. 86-1373, pp. 15-17; No. 86-1374, pp. 15-16), this reasoning is clearly erroneous. The Costle findings are not rules because they are not applicable to anyone and do not impose any duties on anyone. No state or polluter need take any action based on those findings. Once those findings are made, Congress has directed in Section 115 that certain further action by EPA must occur. However, this binding effect of the findings is solely one of Congressional origin. It therefore makes no sense for such a Congressionally- created “rule” to be preceded by notice and comment. EPA does not deny that former Administrator Costle made the two findings of endangerment and reciprocity specified in Section 115. Furthermore, neither EPA nor the industry respondents makes any effort to explain the need for notice and comment prior to the issuance of the Costle findings. As we have shown in our petitions ( No. 86-1373, pp. 4-5, 20; No. 86-1374, pp. 6-9), even without such an opportunity, the public would have at least two other opportunities for notice and comment before any emission control requirements could be imposed on anyone to control acid rain. Neither EPA nor industry deny that this is correct. Fur- thermore, neither EPA nor industry identify any way in which they or the public are prejudiced if a third opportunity for notice and comment is omitted. There is therefore no reason for further ws notice and comment before EPA takes the next step which Con- gress has directed. For the foregoing reasons and the reasons stated in the peti- tions, we respectfully submit that the petitions for a writ of certio- rari to review the judgment of the Court of Appeals for the District of Columbia Circuit should be granted. ROBERT ABRAMS Attorney General of the State of New York Bruce J. Terris (Counsel of Record in No. 86-1374) JAMES M. HECKER O. PETER SHERWOOD Solicitor General Terris, EnGecomsBe, HECKER & ' WAYNE (Cc sel Record dagoat A eo 112) 12th Street, N.W sncrnend-: Washington, D.C. 20005 Deputy Solicitor General Davip R. WooLey MicHaet J. Moore Assistant Attorneys General (202) 682-2100 Roperick M. McLeop, Q.¢ Deputy Minister New York State Department Ministry of the Environment of Law Government of the Province . f Ontario The Capitol ovat | vey al York 12224 135 St Clair Avenue West (518) 474-4819 Se Toronto, Ontario M4V |PS Attorneys for Petitioners Her Majesty the Queen in Right of Ontario, et al JAMES M. SHANNON Attorney General of the Commonwealth of Massachusetts 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 Jerrrey L. AMESTOY Attorney General of the State of Vermont J. WALLACE MALLEeY, JR Assistant Attorney General State of Vermont Office of the Attorney General 109 State Street Montpelier, Vermont 05602 (802) 828-3171 James E. O'Net Attorney General of the State of Rhode Island GARY POWERS Special Assistant Attorne) General State of Rhode Island Office of the Attorney General 72 Pine Street Providence, Rhode Island 02903 (401) 274-4400 JOSEPH |. LIEBERMAN Attorney General of the State of Connecticut ROBERT Waisu Assistant Attorney General State of Connecticut State Office Building, Rm. 147 Hartford, Connecticut 06106 (203) 566-7213 STEPHEN MERRILI Attorney General of the State of Vew Hampshire DANA Bisset issistant 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-1!2 Trenton, New Jersey 08625 (609) 984-56]2 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, N.W., Suite 300 Washington, D.C. 20005 (202) 667-4500 June 1987 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1873%3A4. Public record. Not legal advice.