Petition for Writ of Certiorari — Queen of Ontario v. Thomas (Nos. 86-1373, 86-1374)

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~~ FEB 23 1987

JOSEPH F. SPANIOL, JR,

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1986

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, et al.,

- Petitioners,

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

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. MCLEOop, Q.C.

Deputy Minister

Ministry of the Environment

Government of the Province

of Ontario

135 St. Claire Avenue West

Toronto, Ontario M4V 1P5

Canada

(416) 965-1995

Attorneys for Petitioners Her

Majesty the Queen in Right

of Ontario, et al.

February 1987

ESSA IA ASE PE PT

WILSON - Epes PrRinTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether this case is one of exceptional importance

because it involves the enforceability of EPA findings

that acid rain presents a serious threat to the environ-

ments of both the United States and Canada.

2. Whether the decision below effectively eliminates a

mandatory duty under Section 115 of the Clean Air Act

to abate international air pollution by holding that the

two EPA determinations which trigger that duty are

unenforceable in a citizen suit under Section 304 of that

Act unless those determinations are preceded by notice

and comment procedures, even though the Clean Air Act

and EPA have specified that at least two public comment

opportunities will be provided at subsequent stages of

those proceedings before any pollution control measures

become effective.

3. Whether the decision below conflicts with Vermont

Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519

(1978), by engrafting procedural requirements on a fed-

eral statute in excess of those mandated by Congress in

the Clean Air Act and the Administrative Procedure Act.

(i)

PARTIES TO THE PROCEEDING

The appellants in the court of appeals were Lee M.

Thomas, Administrator, U.S. Environmental Protection

Agency, Commonwealth of Kentucky, State of Ohio,

State of ‘West Virginia, National Coal Association, Ala-

bama Power Company, Appalachian Power Company,

Arkansas Power & Light Company, Baltimore Gas and

Electric Company, Boston Edison Company, Carolina

Power & Light Company, Central and South West Cor-

poration, Central Power and Light Company, Public

Service Company of Oklahoma, Southwestern Electric

Power Company, West Texas Utilities Company, Central

Hudson Gas & Electric Corporation, Central Illinois

Light Company, Central Illinois Public Service Company,

The Cleveland Electric Illuminating Company, Columbus

and Southern Ohio Electric Company, Commonwealth

Edison Company, Consolidated Edison Company of New

York, Ine., Consumers Power Company, The Dayton

Power & Light Company, Delmarva Power & Light Com-

pany, The Detroit Edison Company, Duke Power Com-

pany, Florida Power Corporation, Florida Power & Light

Company, Georgia Power Company, Gulf Power Com-

pany, Gulf States Utilities Company, Houston Lighting

& Power Company, Illinois Power Company, Indiana &

Michigan Electric Company, Indianapolis Power & Light

Service Company, Kansas City Power & Light Company,

Kentucky Power Company, Kentucky Utilities Company,

Louisiana Power & Light Company, Madison Gas and

Electric Company, Mississippi Power Company, Missis-

sippi Power & Light Company, Monongahela Power

Company, Montaup Electric Company, New England

Power Company, New Orleans Public Service, Inc.,

Northern Indiana Public Service Company, Pennsylvania

Power Company, Ohio Power Company, Ohio Valley Elec-

tric Corporation, Oklahoma Gas and Electric Company,

Pennsylvania Electric Company, Pennsylvania Power &

Light Company, The Potomac Edison Company, Potomac

iii

Electric Power Company, Public Service Company of In-

diana, Inc., Public Service Electric and Gas Company,

Salt River Project, Southern California Edison Company,

Tampa Electric Company, Texas Utilities Electric Com-

pany, Toledo Edison Company, Tucson Electric Power

Company, Union Electric Company, Virginia Electric

and Power Company, Wisconsin Power and Light Com-

pany, Wisconsin Public Service Corporation, the Edison

Electric Institute, the National Rural Electric Coopera-

tive Association, and the American Public Power Asso-

ciation.

The appellees were State of New York, State of Maine,

State of Vermont, Commonwealth of Massachusetts,

State of Rhode Island, State of Connecticut, Common-

wealth of Pennsylvania, State of New Hampshire, State

of New Jersey, Natural Resources Defense Council,

Sierra Club, National Wildlife Federation, National Au-

dubon Society, Honorable Richard Ottinger, Robert and

Janet Townsend, Ellen Edith Desmond, Her Majesty the

Queen in Right of Ontario, Ian G. Scott, Q.C., Attorney

General for Ontario, James Bradley, Minister of the En-

vironment for the Province of Ontario, and Michael B.

Vaughan.

TABLE OF CONTENTS

QUESTIONS PRESENTED o000...2-.-c.-ccccseseccssesessseesessseeee

PARTIES TO THE PROCEEDING qs --c-seccose---

TABLE OF AUTHORITIES ...00....0.2.--c0-cccccsssccsessconeeeeoee-

OPINIONS BELOW............... ee ae ee

REASONS FOR GRANTING THE PETITION .........

I. This case is one of exceptional importance be-

cause of its enormous potential impact on envi-

ronmental quality in eastern North America....

II. The decision below effectively eliminates a man-

datory duty under the Clean Air Act by creating

redundant procedural prerequisites to citizen

enforcement of that duty

III. The decision below conflicts with Vermont Yan-

kee Nuclear Power Corp. v. NRDC ....................-

CONCLUSION ......

APPENDIX A

APPENDIX B.....

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APPENDIX F-.......... silanes

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TABLE OF AUTHORITIES

Cases: Page

Harrison v. PPG Industries, 446 U.S. 578 (1980).. 9

Japan Whaling Ass’n v. American Cetacean So-

ciety, —— U.S. ——, 106 S.Ct. 2860 (1986) .... 12

Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519 (1980) 17

Statutes and Treaties:

Administrative Procedure Act

fit Te 1, | 10, 15

5 U.S.C. 558 ............ 7,10, 14,17

Boundary Waters Treaty of 1909, 36 Stat. 2448... 7

Clean Air Act

42 U.S.C. 7410 (a) (2) (H) (ii) --.......-.-..------------- 6,14

42 U.S.C. 7410 (a) (3) (A) -.--------------0----ee-nenennnees 6

42 U.S.C. 7410 (c) (1) ....----------c-eeeeeneeseneee —_ 7

43 U.S.C. TEIB 222202000202: i. esssialeiiclebialiientianiade 15

42 U.S.C. 7412 (b) (1) (A) ...-------------------ee-eeeeeeeee 15

42 U.S.C. 7412 (b) (1) (B) -....-------------2---e0-eeeesee-e0 15

4B U.B.C; TAUB ~......-02.n0.n0-00.-c2eco-coenererecnsesecossnsancons passim

42 U.S.C. T6064 ...............22--0.----ccensencenceeceecscnsensense 8, 10, 13

42 U.S.C. 7607 (d) (1) (B).............--. 7

42 U.S.C. 7607 (d) (3) .....---------c--e-eee-eeeenvenerecennnes 7, 14,17

IN THE

Siypreme Court of the United States

OCTOBER TERM, 1986

No.

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, et al,

- Petitioners,

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 Her Majesty the Queen in Right of On-

tario, Ian G. Scott, Q.C., Attorney General for Ontario,

James Bradley, Minister of the Environment for the

Province of Ontario, and Michael B. Vaughan respect-

fully pray that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at 802

F.2d 1443 (D.C. Cir. 1986) and appears as Appendix A

hereto. The opinion and order of the district court

granting plaintiffs’ motion for summary judgment are

reported at 613 F. Supp. 1472 (D.D.C. 1985) and appear

as Appendices E and F hereto.

JURISDICTION

The judgment of the court of appeals was entered on

September 18, 1986 (Appendix B). Timely petitions for

rehearing and rehearing en banc were denied on No-

vember 24, 1986 (Appendices C, D). Jurisdiction over

plaintiffs’ complaint is conferred by 42 U.S.C. 7604(a)

(2). This Court’s jurisdiction is invoked under 28 U.S.C.

1254(1). 3

STATUTES INVOLVED

This case involves several sections of the Clean Air

Act, 42 U.S.C. 7401, et seg. Section 115 of that Act, 42

U.S.C. 7415, provides:

(a) Whenever the Administrator, upon receipt of

reports, surveys, or studies from any duly constituted

international agency has reason to believe that any

air pollutant or pollutants emitted in the United

States cause or contribute to air pollution which may

reasonably be anticipated to endanger public health

or welfare in a foreign country or whenever the Sec-

retary 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

formal 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 applicable implementation plan as

is inadequate to prevent or eliminate the endanger-

ment referred to in subsection (a) of this section.

Any foreign country so affected by such emission of

pollutant or pollutants shall be invited to appear at

any public hearing associated with any revision of

the appropriate portion of the applicable implementa-

tion plan.

try 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 country as is given that country

by this section.

Section 110(a) (2) (H) (ii) of that Act, 42 U.S.C. 7410

(a) (2) (H) (ii), provides:

(a) (2) * * * The Administrator shall approve such

‘plan, or any portion thereof, if he determines that

it was adopted after reasonable notice and hearing

and that—

(H) it provides for revision, after public hearings,

of such plan * * * (ii) * * * whenever the Adminis-

trator finds on the basis of information available to

him that the plan is substantially inadequate * * *

to otherwise comply with any additional requirements

established under [this Act].

Section 110(a)(3)(A) of the Act, 42 U.S.C. 7410(a)

(3) (A), provides:

The Administrator shall approve any revision of an

implementation plan * * * if he determines that it

meets the requirements of paragraph (2) and has

been adopted by the State after reasonable notice and

public hearings.

Section 110(c)(1) of that Act, 42 U.S.C. 7410(c) (1),

provides:

(1) The Administrator shall, after consideration of

any State hearing record, promptly prepare and

publish proposed regulations setting forth an imple-

mentation plan, or portion thereof, for a State if—

(A) the State fails to submit an implementa-

tion plan which meets the requirements of this

section, (B) the plan, or any portion thereof,

submitted for such State is determined by the

Administrator not to be in accordance with the

requirements of this section, or (C) the State

fails, within 60 days after notification by the

Administrator or such longer period as he may

prescribe, to revise an implementation plan as

required pursuant to a provision of its plan

referred to in subsection (a)(2)(H) of this

section.

If such State held no public hearing associated with

respect to such plan (or revision thereof), the Ad-

ministrator shall provide opportunity for such hear-

ing within such State on any proposed regulation.

Section 307(d) of the Act, 42 U.S.C. 7607(d), provides:

(1) This subsection applies to—

* * * ~

(B) the promulgation or revision of an imple-

mentation plan by the Administrator under sec-

tion 7410(c) of this title,

* * * *

(3) In the case of any rule to which this subsection

applies, notice of proposed rulemaking shall be pub-

lished in the Federal Register, as provided under sec-

tion 553(b) of Title 5, shall be accompanied by a

statement of its basis and purpose and shall specify

the period available for public comment * * 7

Section 304(a) of the Act, 42 U.S.C. 7604(a), provides:

[A]ny person may commence a civil action on his

own behalf—

* * * *

(2) against the Administrator where there is

alleged a failure of the Administrator to per-

form any act or duty under this chapter which

is not discretionary with the Administrator * * *.

STATEMENT OF THE CASE

On January 13, 1981, the Administrator of the En-

vironmental Protection Agency, Douglas M. Costle, sent

a letter to Secretary of State Edmund S. Muskie in

which he concluded that “acid deposition is endangering

public welfare in the U.S. and Canada and * oo oe

and Canadian sources contribute to the problem not only

in the country where they are located but also in the

neighboring country.” The issue presented in this case

is whether these findings imposed a non-discretionary

duty on EPA to initiate a rule-making proceeding under

Section 115 of the Clean Air Act to identify the states

in which the pollution responsible for acid deposition

originates and to order those states to abate the emis-

sions, even though notice and public comment on those

findings had not been provided under the Administra-

tive Procedure Act.

1. The Statutory Framework. In Section 115, Con-

gress carefully crafted a remedial framework for inter-

national air pollution problems. Subsections ( a), (b),

and (c) of that Section establish a three-step procedure

for addressing such problems.

In the first step, which is defined in the first phrase

of subsection (a) and in subsection (ce), the Adminis-

trator makes two discretionary determinations—a fac-

tual determination of endangerment to a foreign coun-

try and a legal determination that the U.S. and the for-

eign country grant each other reciprocal rights concern-

ing transboundary air. pollution. Subsection (a) defines

the threshold level of endangerment necessary to trigger

agency action. It is sufficient if 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.”1 Subsection (ce) de-

fines the reciprocity requirement. It provides that sub-

section (a) is applicable only if the endangered foreign

country is one “which the Administrator determines has

1Subsection (a) also provides that the Administrator’s belief

must be based either on the “receipt of reports, surveys or studies

from any duly constituted international agency” or upon an allega-

tion by the Secretary of State.

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.”

In the second step, once the Administrator exercises

his discretion and makes these two factual and legal

determinations, the second phrase of subsection (a) pro-

vides that he “shall give formal notification thereof to

the Governor of the State in which such emissions origi-

nate.” This language is mandatory and unequivocal.

The language chosen by Congress to describe step cone

and step two has an important difference. Under step

one, the issue is whether the Administrator has “reason

to believe” that endangerment exists. There is no statu-

tory requirement that the Administrator’s belief be ex-

pressed in written form or communicated to anyone.

The Administrator need not make any formal finding of

endangerment.

In contrast, under step two, “formal notification” is

required when the Administrator acts on his belief by

sending notices to governors of the states in which the

offending emissions originate. The difference between

the “reason to believe” standard in step one and the

“formal notification” requirement in step two indicates

that Congress anticipated that the Administrator could

arrive at his endangerment determination without fol-

lowing any formal procedures.

The third step is defined in subsection (b), which pro-

vides that the notice issued by the Administrator in step

two “shall be deemed to be a finding” that the offending

state’s State Implementation Plan (SIP) under the Clean

Air Act is inadequate and must be revised “to prevent or

eliminate the endangerment.” The SIP revision process

is set forth in Sections 110(a) (2) (H) (ii) and 110(a)

(3) (A), which provide that the State must provide a

public hearing on any_proposed revision, and that EPA

shall then approve such revision if it meets the statutory

requirements and “has been adopted by the State after

reasonable notice and public hearings.” The SIP revi-

sion process is further set forth in Sections 110(c) (1),

307(d) (1) (B) and 307(d) (3), which provide that, if

EPA determines that the State’s proposed revision is

untimely, substantively inadequate, or procedurally im-

proper, EPA must provide a public hearing and follow

the notice and comment procedures in Section 553(b)

of the Administrative Procedure Act before approving

its own revision of a State’s SIP. Thus, before any re

vised SIP can become effective and before any emission

control requirements can be imposed on anyone, the pub-

lic must receive notice, an opportunity for comment, and

a public hearing on a proposed SIP revision.

2. The EPA Determinations. On January 18, 1981,

former Administrator Costle stated in a letter to former

Secretary of State Muskie that he had reviewed an Octo-

ber 1980 report by the International Joint Commission

(App. E, infra, 48a).2 Costle concluded that this report

“confirms that acid deposition is endangering public wel-

fare in the United States and Canada and that United

States and Canadian sources contribute to the problem

not only in the country_where they are located but also

in the neighboring country” (ibid.). In a letter to

Senator Mitchell attached to the Muskie letter, Costle

elaborated on this conclusion and stated that ‘we can

say with some certainty that emission sources in the

United States contribute significantly to the atmospheric

loadings over some sensitive areas in Canada * * *”

(id. at 46a). In the Muskie letter, Costle also concluded

that recently enacted Canadian legislation “provides the

2 The IJC is an international agency established by the govern-

ments of Canada and the United States in the Boundary Waters

Treaty of 1909. 36 Stat. 2448. It has the responsibility for ad-

vising the two nations regarding matters affecting the quality of

the Great Lakes ecosystem.

Government of Canada with authority to give the United

States essentially the same rights as Section 115 gives

to Canada” (id. at 39a).

Administrator Costle’s intent to trigger Section 115

is demonstrated by his statement in the Mitchell letter

that his conclusions were “adequate to warrant the in-

tention of a Section 115 based plan revision process in

appropriate States” and that he had instructed his staff

“to develop recommendations regarding the States which

should receive formal notification” (App. E, infra,

52a). Similarly, in a press release issued three days

after the Muskie and Mitchell letters, Administrator

Costle stated that his conclusions “are adequate to war-

rant the initiation of Section 115” (Pl. Ex. G, p. 3).

Despite these conclusions, Administrator Costle’s suc-

cessors at EPA did not take any further action under

Section 115. Consequently, after sending the notice of

intent to sue required by the Act, several eastern states,

environmental groups and U.S. citizens filed suit against

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

7604 (a) (2), which provides that “any person may com-

mence 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 Administra-

tor.” Plaintiffs contended that the Costle determinations

imposed a mandatory duty on EPA to identify the states

responsible for acid deposition and to issue SIP revision

notices to them.

3. The District Court Decision. The district court

held that “Administrator Costle properly invoked Section

115 of the Clean Air Act” and that it “is incumbent

upon the current EPA Administrator to ‘give formal

notification’ to the Governors of the states in which the

harmful emissions originate and to set in motion the

necessary processes to require a plan revision so as to pre-

vent or eliminate the endangerment encompassed by the

Costle determinations” (App. E, infra, 38a). In reach-

- ing this conclusion, the court found the Costle corre-

spondence constituted official agency action under the

Clean Air Act, but that the action was not a rule or pol-

icy statement under the Administrative Procedure Act.

Id. at 34a. The court noted that “correspondence is

frequently used by EPA to take formal action under

the Clean Air Act.” Id. at 34a, n. ** (citing Harrison

v. PPG Industries, 446 U.S. 578, 582 (1980) ).

The district ordered EPA to issue SIP revision notices

within 180 days after the agency issued a current reci-

procity determination (App. F, imfra, 55a). EPA

moved to modify this order to allow additional time for

implementation. In a supporting affidavit, EPA’s Acting

Assistant Administrator of the Office of Air and Radia-

tion stated that issuance of SIP revision notices would

first require EPA analysis of how emission reduction

obligations should be allocated among the states, and

that these “results will only be acceptable to those who

would be bound by them if they are developed with a

full opportunity for public comment, and will only be

legally binding if they are promulgated as rules” (App.

G, infra, 65a). He further stated that “it is certain

that each step of EPA’s reasoning and analysis in deriv-

ing allocation levels will be subject to detailed public

comment” (ibid.). Thus, EPA committed itself to pro-

vide a second opportunity for public comment prior

to the opportunity available later in the SIP revision

process.

3 Because it was concerned about the “lengthy passage of time

since the [first] determination was made,” the district court granted

EPA’s current Administrator, Lee M. Thomas, an opportunity “to

determine whether Costle’s conclusion remains viable” (App. E,

infra, 33a). On October 22, 1985, Administrator Thomas issued a

new reciprocity determination which essentially reaffirmed the

Costle determination.

4. The Court of Appeals Decision. On appeal, EPA

did not challenge the district court’s conclusion that Ad-

ministrator Costle had made the necessary endangerment

and reciprocity determinations. EPA admitted that

Costle “point[ed] out the existence of a general trans-

boundary flow of pollutants across the United States-

Canada border, leading to adverse effects in both coun-

tries.” EPA Brief, p. 20. EPA also admitted that “at

this time,” the reciprocity requirements in Section 115

Nevertheless, the court of appeals held that those

determinations were unenforceable under Section 304

(App. A, infra). The court found that those determina-

tions were rules under Section 551(4) of the APA and

could not be promulgated without first complying with

the notice and comment procedures under Section 553 of

the APA (id. at 7a). The court stated that Section

304 could therefore not be used to compel EPA to issue

notices to the responsible states under Section 115 (id.

at 9a).

In reaching this conclusion, the court of appeals did

not find that the Costle determinations were rules be-

cause they had an immediate effect on anyone outside

EPA. Instead, it found that they would be rules if, as

plaintiffs claimed, they “bound subsequent EPA Ad-

ministrators to issue SIP revision notices” (id. at 7a).

The court indicated that an agency statement can be

a rule even if it has no impact on private parties (id. at

7 i ORs

The court next considered whether the Costle deter-

minations were the type of rule exempted by Section

553(b) (A) of the APA from notice-and-comment proce-

dures, such as a general statement of policy or a proce-

dural rule. The court found that the Costle determina-

tions are “none of these” because they “ ‘jeopardize[],’

* * * or ‘substantially affect’ * * * the rights of pri-

iaihisirnricna es a

vate parties” (App. A, infra, 7a-8a). The court found

that while those effects “are not yet certain,” it was suf-

ficient that plaintiffs had claimed that the Costle deter-

minations “forced the EPA to take direct and substan-

tial regulatory actions” (emphasis in original) and that

these actions would “ultimately caus[e] the termination

or restriction of the operations of many utilities and

manufacturers” (id. at 8a).

REASONS FOR GRANTING THE PETITION

I. THIS CASE IS ONE OF EXCEPTIONAL IMPOR-

TANCE BECAUSE OF ITS ENORMOUS POTEN-

TIAL IMPACT ON ENVIRONMENTAL QUALITY

IN EASTERN NORTH AMERICA

This case is one of exceptional importance. At issue

are the effect and enforceability of EPA’s 1981 finding

that “acid deposition, often referred to as acid rain,

presents a genuine threat to our environmental well-

being both in the U.S. and Canada” (App. E, infra,

45a). Former Administrator Costle’s letter stated that

some areas of Ontario “are among the most heavily im-

pacted areas in the world” because of acid precipitation

(id. at 47a).

These findings are as valid today as they were in 1981.

At their Quebec Summit in March 1985, President Rea-

gan and Prime Minister Mulroney each appointed special

envoys to examine the acid rain issue. EPA Brief, supra,

Addendum A, p. 5. According to the envoys’ January

1986 final report, the “two most important things [they]

learned” were that “[a]cid rain is a serious environ-

mental problem in both the United States and Canada”

and that “[a]cid rain is a serious transboundary prob-

lem.” Jd. at 7-8. At their Washington Summit in March

1986, President Reagan stated that he “endorses fully

”

the Joint Report of the Special Envoys.” Ontario Brief,

Addendum C, p. 1.4

It has now been over nine years since Congress en-

acted Section 115 in its present form as the only statu-

tory remedy for international air pollution problems. It

has been over six years since acid rain was officially rec-

ognized by EPA as an endangerment to public health

and the environment within the meaning of that Section.

Nevertheless, EPA has not initiated any administra-

tive proceedings under that Section to control this critical

problem. As a result of the court of appeals’ decision

below, citizen efforts to compel such proceedings under

Section 304 have been negated.

The present case offers the only opportunity for a

court to review the applicability of Section 115 to the

effect of acid rain on Canada. If that review should re-

sult in an order compelling EPA to initiate the Section

115 process, it could have an enormous beneficial impact

on environmental quality in eastern North America.

This fact alone is a sufficient reason to grant the petition

for a writ of certiorari in this case.

II. THE DECISION BELOW EFFECTIVELY ELIMI-

NATES A MANDATORY DUTY UNDER THE

CLEAN AIR ACT BY CREATING REDUNDANT

PROCEDURAL PREREQUISITES TO CITIZEN EN-

FORCEMENT OF THAT DUTY

As we have shown above, EPA has completed step one

of the three-step procedure established in Section 115 of

the Clean Air Act for addressing transboundary air pol-

* The present case is not nonjusticiable because it concerns for-

eign relations. In Japan Whaling Ass’n v. American Cetacean

Society, 106 S.Ct. 2860, 2865-2866 (1986), this Court recently re-

affirmed the judicial responsibility to interpret the scope of agency

duties under federal statutes even though the requested relief “may

have significant political overtones,” such as the repudiation of an

international agreement.

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lution problems. Indeed, EPA did not deny below that it

has made both the endangerment and reciprocity deter-

minations specified by Congress under step one.

Once EPA has made these determinations, step two of

the Section 115 process dictates that EPA “shall give

formal notification thereof” to the responsible states. This

language is mandatory and unequivocal.

Section 304 authorizes citizens to enforce such duties.

It provides that citizens may bring suit to compel EPA

to carry out “any act or duty under this Act which is not

discretionary with the Administrator.” This provision is

clearly intended to address situations in which EPA has

failed to act pursuant to a Congressional mandate. In

such situations, the agency’s inaction may well be in an

uncompleted form. Yet, Congress decided that citizens

should be able under Section 304 to force the agency to

complete the process.

Under the court of appeals’ decision, however, an

agency’s inaction “cannot serve as a basis for judicial

relief” under Section 304 (App. A, infra, 6a) unless the

duty to be compelled arises from an agency rule promul-

gated after APA notice and comment rulemaking proce-

dures. If such a principle is established, Section 304 will

be eliminated as the basis for enforcing a duty imposed

directly by Congress under Section 115 and many other

provisions of the Act. EPA will be able to escape any

mandatory duty imposed by the Act simply by failing to

carry out the APA notice and comment procedures im-

posed by the court of appeals. The command of Congress

in the Clean Air Act will not be sufficient to require

EPA action.

There is no basis in the Clean Air Act for this result.

As EPA stated in the district court in its memorandum

in opposition to plaintiffs’ motion for summary judgment

(p. 28), “Section 115 does not specify a procedure for the

Administrator to determine and announce his findings.”

On the other hand, Congress did specify in Sections 110

(a) (2) (H) and 307(d) (3) that, before any SIP revision

resulting from such findings has an effect on anyone, the

State must hold a public hearing on the proposed revision,

and if the State’s procedures or its proposal are deter-

mined by EPA to be inadequate, EPA must then follow

the notice and comment procedures under Section 553 (b)

of the APA in preparing its own revision for the State.

Furthermore, EPA informed the district court below that,

before the states could even begin the SIP revision process,

EPA would provide an opportunity for public comment

on “each step of EPA’s reasoning and analysis” in prepar-

ing notices to the states under Section 115(a) (App. G,

infra, 65a). Thus, there would be at least two opportu-

nities for public comment before any emission control

requirements could go into effect to remedy the endanger-

ment from acid rain.

According to the court of appeals, however, the APA

demands an additional opportunity for public comment

at an even earlier stage of the administrative process.

We submit that this holding is erroneous for two reasons.

First, it strains credulity to believe that, although Con-

gress expressly stated in the Clean Air Act exactly when

public hearing and APA notice and comment procedures

should apply, it also intended to have them apply at an

earlier stage in the same rulemaking process despite its

total silence in the statute and its legislative history con-

cerning such a requirement. It is especially difficult to

believe that Congress intended these procedures to apply

during step one when the Administrator only has “reason

to believe” certain facts, prior to step two when Congress

directed “formal notification” to the states of those facts.

This choice of language strongly indicates that Congress

intended that the Administrator could make his step one

determinations without following formal notice and com-

ment procedures.

If the court of appeals’ decision were correct, EPA

would have to conduct rulemakings even to issue intra-

——s < -0res

agency memoranda under many of the environmental

statutes it administers.’ For example, if the Administra-

tor issued an intra-agency memorandum stating that he

intended to list a substance as a hazardous air pollutant

under Section 112 of the Act, 42 U.S.C. 7412, a rulemak-

ing proceeding would be required, since such an intent

would trigger the Administrator’s duty under Section

112(b) (1) (A) to publish such a finding and under Sec-

tion 112(b)(1)(B) to propose regulations establishing

emission standards for such a pollutant. Yet Section

112(b) (1) (B) expressly provides that rulemaking pro-

cedures, including notice of a public hearing, shall follow

publication of the proposed regulations, not the Adminis-

trator’s statement of his intent to list a hazardous air

pollutant.

Second, the threshold Costle determinations are not

“rules” within the meaning of Section 551(4) of the APA.

To be a rule, an agency statement must have “general or

particular applicability and future effect.” 5 U.S.C. 551

(4). The Costle determinations have neither. They are

not applicable to anyone and do not impose any duties on

anyone. No polluter need take any action to clean up its

emissions. No state need revise its SIP. Any effects will

be felt, if at all, only after notices are issued to the states.

And EPA says it will provide notice and comment before

that step is taken. Consequently, the Costle determina-

tions were simply the first step in the process leading to

a rule.

The court of appeals reasoned that the Costle deter-

minations were rules because, according to plaintiffs’

claim, they bound subsequent Administrators to take regu-

5 As petitioner State of New York has demonstrated in its

parallel petition for certiorari in this case, endangerment determi-

nations similar to Section 115 are found in other sections of the

Clean Air Act, as well as in the Clean Water Act, the Resource

Conservation and Recovery Act, the Toxic Substances Contro! Act,

the Safe Drinking Water Act, the Surface Mining Control and

Reclamation Act, and the Food and Drug Act.

latory actions. This formulation is clearly erroneous.

By themselves, the Costle determinations are not binding

on anyone, not even subsequent Administrators. They

are only objective facts found by the agency. They do

not commit EPA to take any further action. The binding

effect arises solely from Section 115 of the Clean Air Act.

Under that Section, once the necessary findings occur, a

binding duty to issue SIP notices arises from the Clean

Air Act itself.

In this sense, then, the only necessary and relevant

binding effect is that created by Section 115. This bind-

ing effect is one of Congressional, not administrative,

origin. Former Administrator Costle did not create it.

It therefore makes no sense to require such a Congression-

ally-created “rule” to be preceded by public notice and

comment. Congress’ procedures are more than adequate

to satisfy the policy of public participation in the APA.

Moreover, subsequent Administrators are not bound to

follow the Costle determinations. As we have noted above,

the district court offered the current Administrator a

chance to reconsider the reciprocity determination, but he

reaffirmed its validity. Similarly, the current Administra-

tor could change his mind concerning the endangerment

determination, if the record supported such a change.

However, he has chosen not to do so. Furthermore, as we

have seen, the endangerment and reciprocity determina-

tions would be subject to public comment and agency

reconsideration during at least two subsequent stages in

the Section 115 process.

Consequently, by holding that the binding effect created

by Section 115 must be preceded by notice and comment,

the court of appeals effectively eliminated the mandatory

duty established by that Section. Citizens cannot enforce

that duty unless the Administrator has first complied with

redundant notice and comment procedures. Because this

result essentially negates citizen enforcement of manda-

tory duties created by the Clean Air Act and numerous

other important environmental statutes, this Court should

grant the petition for a writ of certiorari to review this

issue.

Ill. THE DECISION BELOW CONFLICTS WITH VER-

MONT YANKEE NUCLEAR POWER CORP. v. NRDC

In Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519, 525 (1978), this Court “caution[ed] review-

ing courts against engrafting their own notions of proper

procedures upon agencies entrusted with substantive func-

tions by Congress.” The Court stated that Section 553 of

the APA generally “established the maximum procedural

requirements which Congress was willing to have the

courts impose upon agencies in conducting rulemaking

procedures.” Jd. at 524.

The decision below conflicts with these principles. As

we have shown above, the agency entrusted with admin-

istering the Clean Air Act has determined that Section

115 does not specify any procedures for making the deter-

minations in step one under that Section. In addition,

Congress has specified in Section 307(d) (3) that Section

553 of the APA applies to EPA proceedings under step

three of Section 115.

Vermont Yankee holds that “agencies should be free to

fashion their own rules of procedure.” 435 U.S. at 544.

The court may not “stray beyond the judicial province

* * * to impose upon the agency its own notion of which

procedures are ‘best.’” Jd. at 549. We submit that this

is especially so when the court-imposed procedure provides

a totally unnecessary third opportunity for notice and

comment.

CONCLUSION

We respectfully submit that the petition for a writ of

certiorari to review the judgment of the Court of Appeals

for the District of Columbia Circuit should be granted.

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

Government of the Province

of Ontario

135 St. Claire Avenue West

Toronto, Ontario M4V 1P5

Canada

(416) 965-1995

Attorneys for Petitioners Her

Ma; ty the Queenin Right

of Ontario, et al.

February 1987

APPENDICES

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 85-5970

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

AND ALABAMA POWER COMPANY, et al.,

- Appellants

STATE OF NEW YORK, et al.

No. 85-5972

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

AND ALABAMA POWER COMPANY, et al.,

‘ Appellants

STATE OF NEW YORK, et al.

No. 85-5994

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

AND NATIONAL COAL ASSOCIATION,

* Appellants

STATE OF NEW YORK, et al.

No. 85-6113

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

AND COMMONWEALTH OF KENTUCKY,

Appellants }

Vv.

STATE OF NEW YORK, et al.

No. 85-6114

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

AND STATE OF OHIO,

Appellants

STATE OF NEW YORK, et al.

Appeals from an Order of the United States

District Court for the District of Columbia

(Civil Action No. 84-853)

Argued May 15, 1986

Decided September 18, 1986

Before MIKVA and SCALIA, Circuit Judges, and

WRIGHT, Senior Circuit Judge.

— ee

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

On January 13, 1981, Douglas M. Costle, at the time

Administrator of the Environmental Protection Agency,

sent a letter to then Secretary of State Edmund S. Mus-

kie in which he concluded that “acid deposition is en-

dangering public welfare in the U.S. and Canada and

. . . U.S. and Canadian sources contribute to the prob-

lem 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.

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 con-

stituted 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 to prevent or eliminate the en-

dangerment referred to in subsection (a).” (SIP’s im-

pose controls upon individual polluters within each state

sufficient to ensure that national ambient air quality

standards are met.) Finally, subsection (c) makes sub-

sections (a) and (b) applicable only if the endangered

foreign country is one “which the Administrator deter-

mines 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 coun-

try by this section.”

On January 13, 1981, only days before President Rea-

gan took office, outgoing EPA Administrator Costle wrote

to then Secretary of State Muskie to express his belief

that pollution emitted in the United States was at least

partially responsible for acid deposition endangering pub-

lic welfare in Canada. Acid deposition—often referred

to as “acid rain”—is believed to occur when certain pol-

lutants are transported through the atmosphere and

chemically altered by atmospheric processes before being

deposited in either dry or wet form. Administrator Cos-

tle based his “endangerment” finding on a report issued

by the International Joint Commission, concededly a

“duly constituted international agency” for purpose of

§ 7415(a). In his letter, Administrator Costle also con-

cluded 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. conclude that future Canadian actions inter-

preting or implementing 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 let-

ters nor the findings were published in the Federal Reg-

ister.

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 environmental groups, American citizens who

own property in 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 per-

form any act or duty under this [Act] which is not dis-

eretionary with the Administrator.” The plaintiffs ar-

gued that the Costle letters imposed upon the current

EPA Administrator a duty to identify the states respon-

sible for acid deposition and to issue SIP revision no-

tices 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 inci-

dental to giving formal notification.” Jd. at 1484 n.*.

Likewise, the Court was untroubled that Administrator

Costle made his findings in private correspondence, with-

out notice, opportunity 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 Fed-

eral 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 Admin-

istrator 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 be-

tween the United States and Canada. The District

Court then stayed its order to permit the EPA to bring

this appeal. We have jurisdiction under 28 U.S.C. § 1291

(1982).

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 pollution problem to is-

sue 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, identifica-

tion of the problem does not necessarily bring with it

identification of the blameworthy states. Had the statute

been executed as Congress probably anticipated, the pres-

ent suit would not have arisen. Notice of the “endan-

germent” 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, 589 F.2d 775, 778 (D.C. Cir. 1976) (“National

Asphalt”) (finding that particular category of station-

ary 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 “en-

dangerment” and “reciprocity” findings before attempt-

ing to identify the culpable states, however, we must

determine appellants’ claim that the findings legally bind

the current Administrator to issue SIP notices. We con-

clude that, whatever the impact of Administrator Cos-

tle’s letter, it 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

statement of “future effect designed to implement . . .

law or policy” * 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 organi-

zation, 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 interpretative rule because they are not a “statement

interpreting an existing statute 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. 1982) ;

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.

* Both appellants and appellees labor under the misconception

that the classification of an agency statement as a rule depends

upon whether it substantially affects the interests of private par-

ties. While language in past decisions of this court is somewhat

misleading on the point, see Environmental Defense Fund, Ine. 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 decisions, 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 (5th Cir. 1984), and the APA

itself make clear that the impact of an agency statement 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 includes

within the definition of rule “an agency statement .. . describing

the organization . . . of an agency”—a statement that can rarely

if ever have effect outside of the agency itself. 5 U.S.C. § 551(4).

1952). They are not a “general statement of policy” for

(on the assumption that they bind subsequent Adminis-

trators to action) they do more than express, without the

“force of law,” the EPA’s “tentative intentions for the

future.” Pacific Gas & Electric 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 “gof]

beyond formality,” Pickus v. Board of Parole, 507 F.2d

1107, 1113 (D.C. Cir. 1974), and “jeopardize[ |” Batter-

ton, 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. The fact that it is not yet

certain which particular states will receive SIP notices

as a result of the findings, and which particular dis-

chargers within those states will suffer injury, may be

relevant to the question of when legal challenge to the

findings would be ripe, but does not convert them into a

mere general statement of policy or a procedural rule.

We conclude that if Administrator Costle’s findings left

the EPA no alternative but to issue SIP notices ulti-

mately causing the termination or restriction 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 determina-

tion similar to the findings involved here was a rule that

required notice-and-comment procedures. At issue in that

case was the designation of a particular industry for

inclusion on the list of stationary sources which “may con-

tribute significantly to air pollution which cause or con-

tributes to the endangerment of publie health or welfare.”

42 U.S.C. § 1857¢-6(b) (1) (A) (1970). Within 120 days

after such designation, the Administrator was obligated

to publish proposed standards of performance for mem-

a a GRO A

bers 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

Environmental Defense Fund, Inc. v. Costle, 636 F.2d

1229, 1254-56 (D.C.Cir.1980) (“Costle’’), which held that

a settlement modification requiring the EPA to take cer-

tain investigatory actions was not a rule. Costle, how-

ever, like the cases upon which it relied, rests upon “a

classification—of investigative acts—that is set apart

from either adjudication or rulemaking.” Guardian Fed-

erel, 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 after notice and comment, they would

nevertheless be insufficient to support the present suit.

It suffices to say that, because the findings were issued

without notice and comment, they cannot be the basis

for the judicial relief appellees seek. How and when the

agency chooses to proceed to the stage of notification trig-

gered by the findings is within the agency’s direction

and not subject to judicial compulsion.

* . * * .

We reverse and remand to the District Court with in-

structions to dismiss.

So ordered.

10a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1986

No. 85-5970

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

and ALABAMA POWER ComPay, et al.,

Appellants

STATE OF NEW YORK, et al.

Civil Action No. 84-853

No. 85-5972

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

and ALABAMA POWER ComPay, et al.,

| Appellants

Vv.

STATE OF NEW YoRrK, et al.

Civil Action No. 84-853

LL a

lla

No. 85-5994

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

and NATIONAL COAL ASSOCIATION,

Appellants

STATE OF NEW YORK, et al.

Civil Action No. 84-853

No. 85-6113

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

and COMMONWEALTH OF KENTUCKY,

Appellants

STATE OF NEW YORK, et al.

Civil Action No. 84-853

No. 85-6114

LEE M. THOMAS, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

and STATE OF OHIO,

Appellants

Vv.

STATE OF NEW YORK, et al.

Civil Action No. 84-853

12a

Appeals from an Order of the

United States District Court

for the District of Columbia

[Filed Sept. 18, 1986]

Before: MikvA and SCALIA, Circuit Judges, and

WRIGHT, Senior Circuit Judge.

JUDGMENT

These causes came on to be heard on the records on

appeal from an order of the United States District Court

for the District of Columbia, and were argued by. counsel.

On consideration thereof, it is

ORDERED and ADJUDGED, by the Court, that the

judgment of the District Court appealed from in these

causes is hereby reversed and these cases are remanded

with instructions, in accordance with the Opinion for

the Court filed herein this date.

Per Curiam

For THE COURT

/s/ George A. Fisher

GEORGE A. FISHER

Clerk

Date: September 18, 1986

Opinion for the Court filed by Circuit Judge Scalia.

a a all, 0b ee scinene

13a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1986

No. 85-5970

STATE OF NEW YORK, et al.

Vv.

LEE M. THOMAS, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY

And Consolidated Cases

CA No. 84-00853

[Filed Nov. 24, 1986]

Before: MrkvaA, Circuit Judge and WRIGHT, Senior

Circuit Judge

ORDER

Upon consideration of the petitions for rehearing of

petitioners and of the State of Maine and Her Majesty

the Queen in Right of Ontario, filed November 3, 1986,

ORDERED, by the Court, that the petitions are denied.

Per Curiam

For THE CourRT:

GEORGE A. FISHER

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Chief Deputy Clerk

14a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1986

No. 85-5970

STATE OF NEW YORK, et al.

Vv.

LEE M. THOMAS, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY

And Consolidated Cases

CA No. 84-00853

[Filed Nov. 24, 1986]

Before: WALD, Chief Judge; RoBINSON, Mikva, ED-

WARDS, RUTH B. GINSBURG, BORK, STARR,

SILBERMAN, BUCKLEY, WILLIAMS and D. H.

GINSBURG, Circuit Judges; WRIGHT, Senior

Circuit Judge

ORDER

The suggestions for rehearing en banc of petitioners

and of the State of Maine and Her Majesty the Queen

15a

in Right of Ontario have been circulated to the full

Court. No member of the Court requested the taking of

a vote thereon. Upon consideration of the foregoing, it is

ORDERED, by the Court en banc, that the aforesaid

suggestions are denied.

Per Curiam

For THE COURT:

GEORGE A. FISHER

Clerk

By: /s/ Robert A. Bonner

ROBERT A. BONNER

Chief Deputy Clerk

Circuit Judges Silberman and D. H. Ginsburg did not

participate in this order.

16a

APPENDIX E

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 84-0853

STATE OF NEW YORK, et al.,

Plaintiffs,

Vv.

LEE M. THOMAS, et al.,

Defendants.

[Filed 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 the Envir-

onmental 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 environmental

associations, and four individuals who seek to alleviate

damage occurring in eastern Canada allegedly caused by

the international movement of harmful pollutants orig-

inating in the midwestern United States. Defendant is

the Administrator of the EPA and is sued in his capacity

as such. The National Coal Association and several in-

dustrial power companies were granted leave to inter-

17a

vene in these proceedings and filed briefs in support 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 Implementa-

tion Plans (SIP’s), 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 Edmund Muskie (Appendix A). This letter,

dated January 18, 1981, concluded 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. Addition-

ally, in his letter, Costle analyzed legislative provisions

similar to section 115 passed by the Canadian Legislature

on December 17, 1980, and concluded that these provi-

sions 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

Jatary 18, 1981, and issued his findings in a press re-

lease dated January 16, 1981. Plaintiffs contend that the

determinations made by Costle 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 is-

sued 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

18a

were insufficient to invoke section 115. Whether section

115 applies in this case—and, if so, its effect—is at con-

troversy in the present action.

Section 115 provides in pertinent part:

(a) Whenever the Administrator, upon receipt of re-

(b)

(c)

ports, surveys or studies from any duly consti-

tuted 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 for-

eign country or whenever the Secretary of State

requests him to do so with respect to such pol-

lution which the Secretary of State alleges is of

such a nature, 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 under section 7410(a) (2) (H)

(ii) of this title which requires a plan revision

with respect to so much of the applicable imple-

mentation plan as is inadequate to prevent or

eliminate the endangerment referred to in sub-

section (a) of this section. Any foreign coun-

try so affected by such emission of pollutant or

pollutants shall be invited to appear at any pub-

lie hearing associated with any revision of the

appropriate portion of the applicable imple-

mentation plan.

This section shall apply only to a foreign coun-

try 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 country as is

given that country by this section.

42 U.S.C. § 7415(a)-(e).

19a

Il. JUSTICIABILITY

A. Statutory Basis for Jurisdiction

The Clean Air Act contains a citizen suit provision to

permit 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 this Act which is not discretionary with

the Administrator. ... (b) Notice. No action may

be commenced . . . prior to 60 days after the plain-

tiff has given notice of such action to the Adminis-

trator. ...

42 U.S.C. § 7604.

Plaintiffs allege that under section 115 the Adminis-

trator is charged with perforiing a mandatory duty and

due notice having been served upon him, they thus in-

voke 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; how-

ever, as the Court concludes that the duties are manda-

tory, jurisdiction of this action properly lies in the dis-

trict court under 42 U.S.C. § 7604. See Kennecott Cop-

per Corporation, Nevada Mines Division, McGill, Nevada

v. Costle, 572 F.2d 1349 (9th Cir.1978).

B. Applicability of TRAC

Intervenors argue further that, notwithstanding the

provisions of 42 U.S.C. § 7604, jurisdiction of this ac-

tion is exclusively vested in the United States Court of

Appeals for the District of Columbia Circuit based on

that court’s recent decision in Telecommunications Re-

search and Action Center v. Federal Communications

20a

Commission, 750 F.2d 70 (D.C.Cir.1984) (TRAC).

Specifically, intervenors argue that under TRAC any ac-

tion or inaction by the Administrator with respect to

the Costle letters is reviewable only in the Court of

Appeals for this Circuit pursuant to section 307 of the

Clean Air Act. Section 307 provides for direct review

by the court of appeals of “final action 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 cannot apply.

Intervenors’ reliance on TRAC is misplaced. Plaintiff

in TRAC claimed that the FCC unreasonably delayed

making a determination that AT & T was required to

reimburse ratepayers for 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 Communica-

tions Commission.” 28 U.S.C. § 2342(1) (1982); 47

U.S.C. § 402(a) (1982). The court of appeals held that

its jurisdiction was exclusive over nonfinal matters as

well by virtue of the exclusive 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 jurisdic-

tions. 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 action which would be cog-

nizable under section 307. They seek review of an al-

leged failure to take action alleged to be mandatory.

Although Costle’s acts fall short of final action—as was

2la

the case in TRAC—there is no need—and, indeed, no

authority—for the court of appeals to protect its prospec-

tive 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 its

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 re-

viewed the alternative bases for dismissal and concludes

that plaintiffs have alleged material facts sufficient to

sustain their claim that the court possesses subject mat-

ter jurisdiction.

Article III of the United States Constitution defines

and limits the jurisdiction of United States courts, stat-

ing in part that the judical 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 chal-

lenged action that is likely to be redressed by a

favorable decision.

Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 472,

102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (“Valley

22a

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, 2204-04, 45 L.Ed.2d

343 (1975); Linda RS. v. Richard D., 410 U.S. 614,

617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 586 (1973); Baker

v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d

663 (1962).

These requirements assume constitutional stature be-

cause 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 statu-

tory 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 requirements

articulated above, although a statutory right of action

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, pro-

vides that “any person” may commence a civil action to

compel the Administrator to undertake action under the

Act which is not discretionary. Under section 302 of the

Act, person is defined to include “an individual, corpora-

tion, 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.

The state plaintiffs in this action seek enforcement

not only for their citizens but on their own behalf. Al-

23a

though states frequently sue under the doctrine of parens

patriae, it is not uncommon 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 chal-

lenge 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 cri-

teria); Phillips Petroleum Company v. Wisconsin, 347

U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954); Penn-

sylvania v. Kleppe, 583 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”).

The citizen group plaintiffs sue on behalf of them-

selves and on behalf of their members “who reside in

areas throughout the midwestern and northeastern states

and eastern Canada and breathe air pollution and suf-

fer 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 ad-

versely affected by the inaction of the Administrator,

relying principally on Sierra Club v. Morton, 405 U.S.

727, 92 S.Ct. 1861, 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 defendants’ conten-

tion. In Sierra Club v. Morton, plaintiff sued to obtain

judicial review of action by the United States Forest

Service approving recreational development in the Sierra

Nevada Mountains. The Supreme Court denied stand-

ing to the plaintiff because it “failed to allege that it or

its members would be affected in any of their activities

or pastimes... .” 405 U.S. at 735, 92 S.Ct. at 1366.

In the present case, however, the plaintiffs have alleged

24a

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 standing 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 suffered or will suffer

concrete harm as a result of the putatively illegal in-

action. Unlike Warth, which involved a tenuous casual

link between the alleged illegality and the alleged harm,

the present case involves alleged inaction which, if cured,

may lead directly to reduced emissions and thus reduced

harm. Plaintiffs have quite clearly stated that “respir-

able particulates and deposition 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.” Complaint

at 1-2.

The individual plaintiffs, with the exception of Rep-

resentative Ottinger, also have alleged material facts

sufficient to enable them to proceed as plaintiffs in this

action. These plaintiffs own property in the Muskoka

Lake area of Ontario and allege that their “air and wa-

ter 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 of their presence in a geographical region

harmed by the Administrator’s alleged inaction is suf-

ficient to confer upon them a cognizable interest. See

25a

Sierra Club v. Morton, 405 U.S. at 734, 92 S.Ct. at 1366

(“{alesthetic and environmental well-being, like eco-

nomic well-being, are important ingredients of the qual-

ity of life in our society, and the fact that particular

environmental interests are shared by the many rather

than the few does not make them less deserving of legal

protection through the judicial process”).

Representative Ottinger asserts a cognizable interest

by virtue of his position as a Member of Congress. How-

ever, there are no special standards for determining con-

gressional 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 sufficient to invoke the Court’s jurisdic-

tion, Ottinger may remain in the action. See Watt v.

Energy Action Educational Foundation, 454 U.S. 151,

160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981); Arling-

ton Heights v. Metropolitan Housing Development Cor-

poration, 429 U.S. 252, 264 n. 9, 97 S.Ct. 555, 563 n. 9,

50 L.Ed.2d 450 (1977).

2. Direct Injury

In addition to presenting properly cognizable claims

in their respective or individual capacities, plain-

tiffs also have alleged cognizable direct injury sufficient

to meet the constitutional requirement of direct injury.

As noted above, environmental harm is a legally redress-

able 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

identifiable harm that has befallen them, legally recog-

nizable harm may be retrospective or prospective in

nature. See United States v. Students Challenging Regu-

latory Agency Procedures, 412 U.S. 669, 689 n. 14, 93

26a

S.Ct. 2405, 2417 n. 14, 87 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 stand-

ing has been greatly changed in the last J% years, we

have steadfastly adhered to the requireme..c that, at

least in the absence of a statute expressly conferring

standing, federal plaintiffs must allege some threatened

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 mem-

bers live, work, vacation or own property, plaintiffs 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

Article III requires that the injury complained of

be fairly traced to the challenged action and that

the harm involved be likely to be redressed by judi-

cial intervention. As plaintiffs correctly noted, trace-

ability and redressability “are inseparable in the

present case because the relief plaintiffs seek in an or-

der compelling the EPA to end the very inaction which

is the cause of plaintiffs’ injuries.” Plaintiffs’ Memo-

randum 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,

terrestrial ecosystems, animal health, human health, or

artifacts. See generally Carroll, Acid Rain: An Issue in

27a

Canadian-American Relations (Toronto and Washington:

1982). Defendants in this case contend that plaintiffs

have failed to establish a causal link between EPA in-

action and the aggravated harm in Canada. They argue

that, even if EPA is required to act, “it would be diffi-

cult, if not impossible, to identify facilities causing in-

ternational 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 un-

willing to do what Congress has mandated it must do.

Indeed, at the heart of section 115 is the congressional

determination that the revision of state implementation

plans is an effective mechanism for abatement of inter-

national 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 rela-

tionship 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. More-

over, the United States Court of Appeals for the District

of Columbia Circuit has held that the “redressability re-

quirement” is to be construed broadly in favor of plain-

tiffs:

[Blecause the relevant inquiry is directed to the

effect of a future act (the court’s grant of the re

quested relief) it would be unreasonable to require

the plaintiff to prove that granting the requested

relief is certain to alleviate his injury. Further-

more, as cases such as the present one show, litiga-

28a

tion often ‘present[s] complex interrelationships be-

tween private and government activity that make

difficult absolute proof that the harm will be re-

moved.’ Thus, a court should be careful not to re-

quire 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, US. , 104 S.Ct. 2450, 81 L.Ed.2d 270

(1984). Accord: International Ladies’ Garment Work-

ers’ Union v. Donovan, 722 F.2d 795, 811 n. 27 (D.C.Cir.

1983); cert denied, —— U.S. , 105 S.Ct. 98, 838

L.Ed.2d 39 (1984). Moreover, plaintiff need not show

that the injury would be completely redressed, so long as

“ “the requested relief would benefit [them] in some per-

ceptible, tangible fashion.’” Sierra Club v. Edwards,

19 Envir.Rep. (BNA) 1357, 1866 (D.D.C.1983) (citing

Public Citizen v. Lockheed Aircraft Corporation, 656

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 concluded 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

requirements 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

“The initial requirement under section 115 is that the

Administrator receive a report from a duly constituted

29a

international agency ... .” 42 U.S.C. § 7415. Costle

stated in his letter to Secretary Muskie that he examined

in connection with his consideration of the United States-

Canada acid rain issue the Seventh Annual Report on

Great Lakes Water Quality, issued in October 1980 by the

International Joint Commission. Costle averred that this

report “confirms that acid deposition is endangering pub-

lic 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 his-

tory, the IJC would meet the expectations of the drafters

of this section. The Commission, established by the Bound-

ary Waters Treaty of 1909, United States-Canada, 36

Stat. 2448, T.S. No. 548 (effective May 18, 1910), is

charged with the responsibility of resolving transboundary

water and navigational disputes between the United 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 boundary «nd the investigation of disputes involv-

ing United States-Canada boundaries. See generally B.

Caplan, The Applicability 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

In order to trigger invocation of section 115, the Ad-

ministrator must have “reason to believe that any air pol-

30a

lutant or pollutants emitted in the United States cause or

contribute to air pollution which may reasonably be antic-

ipated to endanger public health or welfare in a foreign

country... .”

The IJC Report, upon which Administrator Costle in

part based 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 re-

ceiving precipitation containing 5 to 40 times more

acid than would occur in the absence of atmospheric

emissions.”

Based on these findings, the Commission recommended

“appropriate 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 be-

lieve,” but the IJC Report would have afforded Costle

ample basis upon which to conclude that air pollutants in

the United States contribute to acid precipitation occur-

ring in Canada such that it could reasonably be antic-

ipated 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 wel-

fare 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 cuwmu-

lative effects of Canadian and the United States emissions

3la

are creating a risk of public harm in Canada.” EPA

Motion to Dismiss at 29. This argument, 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 pol-

lutants across the U.S.-Canadian border in both direc-

tions. 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 sensi-

tive areas in the United States.

Plaintiffs’ Exhibit 1-E at 2-3.

It was based on this information that Cosile 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.

3. Reciprocity

In addition, section 115 requires that its provisions be

invoked 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 Cana-

dian contaminants 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 standards appropriate to re-

32a

duce the damage. Additionally, the statute requires the

Minister of Environment to consult with the province

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 might 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 amendments to the Canadian Clean Air Act do

give adequate authority to the Government of Canada to

provide essentially the same rights to the United States as

Section 115 provides to Canada.” However, Costle quali-

fies this conclusion by characterizing the reciprocity deter-

mination 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 emphasizes that at the time of any final

action, “the Administrator must continue to be able to find

that Canada is giving the United States essentially the

same rights... .”

Defendants urge that Costle merely opines on whether

the Canadian legislation provides reciprocal rights to the

United States. Defendants cite to Costle’s language that

his determination is not “permanently binding. . . .”

However, this merely underscores the reality that a find-

ing 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 reexamina-

tion 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 Administrator in an action commenced in the court of

appeals. 42 U.S.C. § 7607.

33a

Based on its review of Costle’s letters, the Court con-

cludes 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, aggravated

in this case by the lengthy passage of time since the deter-

mination was made. Therefore, the Court will afford the

current EPA Administrator an opportunity to review the

issue of reciprocity to determine whether Costle’s conclu-

sion remains viable.

B. The Effect of a Finding That Section 115 Has Been

Invoked

Under section 115, once the formal requirements of the

statute have been met, “the Administrator shall give for-

mal 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).*

Defendants attack the legal significance of Costle’s

findings on three bases. First, they argue that Costle’s

* The Court notes that the states to which notification is due

were not identified by Costle. Costle instructed his staff to deter-

mine which states were to be targeted, but no final action was

taken. The Court is convinced that the obligation to identify the

polluting states is incidental to giving formal notification and not

a prerequisite to the conclusion that Costle made the requisite find-

ings under section 115. The construction of section 115 and Costle’s

description of the statute in his letter to Secretary Muskie illus-

trate 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.

34a

findings did not constitute official decision-making. Sec-

ond, they contend that Costle’s actions were revoked by

the actions of his successor, Administrator Gorsuch.

Third, defendants urge that the decision to act under sec-

tion 115, even once the necessary findings have been made,

is discretionary.

1. Official Decision-Making

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 administrative decision-making. Defendants sug-

gest that another method, for example, publishing the let-

ters in the Federal Register, would have given the deter-

minations the characteristics of official action.

Plaintiffs reply that the letters have all the attributes

of official 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 com-

municating through correspondence. The Court concludes

that the fact that Costle memoralized his findings in a

letter does not defeat their classification as official agency

action. It appears that publication in the Federal Register

would be ‘nappropriate for this kind of action because it

is not a rule or policy statement. 5 U.S.C. §§ 552(a) (1)

and 553(b). Additionally ®otification to the Governors

would presumably be achieved by letter. That the Admin-

istrator chose this medium to make his findings should not

frustrate the Administrator’s intent to secure compliance

by the states.**

** 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 accomplished by correspondence.

See Harrison v. PPG Industries, 446 U.S. 578, 582, 100 S.Ct. 1889,

35a

2. Revocation

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 determinations were erroneous. This kind of fac-

tual 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 “recon-

sider” or “make different findings”). Gorsuch made no

such factual findings. 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 concluded that the Gorsuch letter revoked the

Costle determination that section 115 was applicable.

See Motor Vehicle Manufacturers Association of the

1892, 64 L.Ed.2d 525 (1980); Hawaiian Electric Company v. EPA,

723 F.2d 1440, 1442 (9th Cir. 1984). Determinations that a source

is not in compliance with emission control requirements under 42

U.S.C. § 7413 of the Act is accomplished by correspondence. Wis-

consin’s Environmental Decade, Inc. v. Wisconsin Power and Light

Co., 395 F. Supp. 313 (W.D. Wis. 1975). Waivers by the Ad-

ministrator 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).

36a

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 re-

versal of the agency’s former views as to the proper

course. A ‘settled course of behavior embodies the agen-

cy’s informed judgment that, by pursuing that course, it

will carry out the policies committed 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 rescind-

ing 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 jurisdictional argument because section 304

jurisdiction exists in the district court only to challenge

mandatory duties that the Administrator 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

additional 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 emis-

sions originate” (emphasis added). As reiterated by the

United States Court of Appeals for the District of Colum-

bia 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.D.Cir.1975). See also Anderson v. Yungkau, 329 U.S.

482, 485, 67 S.Ct. 428, 430, 91 L.Ed 436 (1947). In addi-

37a

tion, the Report of the Committee on Public Works of the

United States Senate concluded that “[sjection 115, as

revised, therefore, provides that the determination that

emissions of air pollutants in the United States are endan-

gering 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 emissions.” 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

discretionary because it “requires the fusion of technical

knowledge and skills with judgment which is the hallmark

of duties which are discretionary.” Intervenors’ Memo-

randum of Points and Authorities at 17 (quoting Kenne-

cott Copper Corporation, Nevada Mines Division, McGill,

Nevada v. Costle, 572 F.2d 1349 (9th Cir.1978) (“Kenne-

cott”)). 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 judg-

ment that it had satisfied the Act by making certain im-

provements. 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 approve a variance. However, the Court held that deter-

mining whether a SIP met the requirements was discre-

tionary, thus it had no jurisdiction. The Court pointed out

that once the Administrator had made the determination

that the statutory requirements had been met, “there is a

nondiscretionary duty to act in accordance with his deter-

mination.” 572 F.2d at 1355. This holding is applicable

to the present case. The Administrator exercised discre-

88a

tion in determining whether the statutory requirements

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 giv-

ing formal notification to the Governors. The relevant

case law uniformly upholds the determination that sec-

tions employing the word “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

Council 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 language 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 perform-

ance when the evidence supporting revision is compelling) ;

Citizens for a Better Environment v. Costle, 515 F.Supp.

264 (N.D.II1.1981); Dow Chemical Company v. Costle,

480 F.Supp. 315, 317 (E.D.Mich.1978), uff’d, 659 F.2d

724 (6th Cir.1981). Therefore, the Court concludes that

the duty of the Administrator to act according to the

statute is nondiscretionary under section 115.

IV. CONCLUSION

The Court concludes from the record before it that

defendants’ motions to dismiss and for summary judg-

ment must be denied and that plaintiffs’ motion for sum-

mary 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 notification to the Gover-

nors 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 endanger-

ment encompassed by the Costle determinations. An ay-

propriate Order accompanies this Memorandum.

Ay Po art a aaa eS

39a

APPENDIX A

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

Parliament 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 Section 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 Department of State, I have concluded that the

Canadian legislation provides the Government of Canada

with authority to give the United States essentialiy the

same rights as Section 115 of the Clean Air Act gives to

Canada. In addition to this initial determination based on

the language of the Canadian legislation, the Administra-

tor must be able to determine that the Government of

Canada is exercising or interpreting 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.

40a

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 of persons in an-

other country, the Minister shall recommend to the Gov-

ernor in Council (the highest federal executive authority)

specific emission standards for the source or sources, in

relation to the air contaminant, either alone or in com-

bination 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 pub-

lished 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 stand-

ards, and to the endangered country.

For sources other than ‘federal’ sources, Section 21.1

(3) in effect requires that before making a final recom-

mendation the Minister must consult with the appropriate

province and provide 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 considered 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 re-

spect to non-federal sources, the Governor in Council must

conclude that reasonable efforts by the Minister to procure

4la

reduction or elimination of the danger by the provincial

government, have been unsuccessful.

As with most legislation, it is possible that the Cana-

dian legislation could in the future be interpreted or

implemented in a way that the United States would con-

clude that it was not being given essentially the same

rights as as provided under Section 115. Thus, it is not

possible to make a permanently binding determination

that Canada has given the United States essentially the

same rights based simply on a review of Canadian au-

thorizing legislation. EPA first determines that Canadian

legislation gives ample authority to the Government of

Canada to provide essentially the same rights to the

United States. Second, EPA must determine that the Gov-

ernment of Canada is exercising or interpreting that au-

thority 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 provide 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 recommendation concerning

endangerment to health or welfare of a foreign country

due to any air pollutant emitted domestically, and to pre-

scribe specific emission limits to eliminate, significantly

reduce, or prevent the endangerment. The Canadian leg-

islation refers to “significant danger to the health, safety

or welfare of persons,” thus my conclusion assumes this

phrase will be interpreted 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

42a

provincial government fails to develop an adequate remedy

the federal government is authorized to establish emission

limitations. Each statute also requires that the federal

government provide opportunities for public hearing on

any proposed action and participation in the hearing by

an affected foreign government.

The principal difference in the two statutes is the de-

tailed procedural and substantive requirements applicable

to the State plan revision process under the U.S. Clean

Air Act as opposed to the more general requirement in the

Canadian legislation for provincial consultation and rea-

sonable efforts to secure action by the provincial govern-

ment. In my judgment, that difference does not signifi-

cantly restrict the ability of the Government of Canada

to provide essentially the same rights to the United States.

The Canadian requirement for federal consultation and

efforts to procure provincial action fills the same role as

the State plan revision process in the U.S. system. Conse-

quently, I have concluded that, despite the differing process

at the State and provincial levels, the Canadian legislation

does provide the Government of Canada with ample au-

thority to give essentially the same rights to the United

States as are provided by Section 115.

I should observe that the provisions of the Canadian

legislation do appear to provide the Minister of Environ-

ment with some discretion regarding the scope of the

remedy he must recommend, as well as the adequacy of

any remedies undertaken by the provincial government.

Similarly, the Governor Council is apparently provided

with discretion regarding final prescription of specific

emission standards as is the case for all regulations issued

under the Canadian Clean / ir Act. For these reasons, my

determination that the Canadian legislation provides es-

sentially the same rights as Section 115 could be changed

should the U.S. conclude that future Canadian actions in-

terpreting or implementing their legislation were not giv-

ing essentially the same rights to the U.S.

43a

In connection with my review of the recent Canadian

legislation, I have also examined the Seventh Annual Re-

port on Great Lakes Water Quality issued on October

1980 by the International Joint Commission (IJC). I

have concluded that the IJC Report confirms that acid

deposition is endangering public welfare in the U.S. and

Canada and that U.S. and Canadian sources contribute to

the problem not only in the country where they are located

but also in the neighboring country. I am enclosing a

letter which I have sent to Senator George Mitchell on this

subject which discusses the IJC Report in greater detail

and the implications of these conclusions with respect to

any future actions by EPA pursuant to Section 115 of the

Clean Air Act.

Sincerely yours,

/s/ Douglas M. Costle

DOUGLAS M. COSTLE

Enclosure

44a

APPENDIX B

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

WASHINGTON, D.C. 20460

JAN 13 1981

Honorable George Mitchell

United States Senate

Washington, D.C. 20510

Dear Senator Mitchell:

Thank you for your letter of December 23, 1980 regard-

ing Section 115 of the Clean Air Act. As you are aware,

this Section of the law requires EPA, if certain conditions

are met, to call on States to revise their implementation

plans where necessary to prevent or eliminate endanger-

ment to public health or welfare in a foreign country

stemming from air pollutants emitted in the United

States.

Two recent actions require me to consider whether EPA

should identify appropriate States for notification under

this Section. First, in October 1980, the International

Joint Commission submitted its Seventh Annual Report

on Great Lakes Water Quality. That report contains a

section describing damages due to transboundary air pol-

lution and a recommendation that the Governments of the

United States and Canada act to reduce certain air pollu-

tants. Second, on December 17, 1980, the Canadian Par-

liament approved legislation providing the Canadian fed-

eral government with powers to abate transboundary air

pollution. On December 24, 1980, the U.S. Department of

State issued a public statement committing the United

States to evaluate whether this Canadian legislation pro-

vides essentially the same rights as are provided by Sec-

tion 115 of the Clean Air Act. The Clean Air Act re-

quires the Administrator of EPA to make this determina-

tion.

MAPLE REALE ee

45a

There are two principal conditions which must be met

before EPA can notify a State under Section 115 that a

plan revision is required. First, the Administrator on

receipt of reports, surveys, or studies from a duly con-

stituted- international agency must conclude that U.S.

emissions are causing or contributing to endangerment in

a foreign country, or must have received a request from

the Secretary of State to notify a State. Second, before

the provisions of Section 115 can be applied with respect

to a foreign country, the Administrator must determine

that the country provides the United States with essen-

tially the same rights regarding international air pollu-

tion control as are provided by Section 115.

Your letter calls attention to certain reports which dis-

cuss problems of transboundary air pollution between the

United States and Canada. As you are aware, the major

focus of U.S.—Canadian concerns in the past two years:

respecting transboundary air quality has been on the

question of the adverse impacts of acid deposition.

As my public statements over the past year have indi-

cated, EPA has concluded that acid deposition, often

referred to as acid rain, presents a genuine threat to our

environmental well-being both in the U.S. and Canada.

What we know or suspect about acid deposition indicates

that the problem is genuine and serious:

—acid deposition can and has destroyed lake and

stream ecosystems, killing fish and other water

life;

—many lakes in Canada and the United States are

already acidified and their fish populations are

shrinking or are extinct;

—some soils are being damaged over time due to

leaching of minerals and nutrients;

—the water and soils over extensive areas in North

America are susceptible to acidification;

46a

—stone buildings, monuments, and other building

materials are eroded more rapidly by acid deposi-

tion;

—some important crops may be damaged by acid

deposition and others may be injured by acidified

soils;

—growth of forests may be reduced over time;

—over the long term some drinking water supplies |

may be contaminated by toxic metals leached from ;

;

the soil as a result of acid deposition.

These kinds of impacts are within the range of impacts |

covered by Section 115. As you know, that Section is |

broadly drafted to encompass all forms of air pollution- |

related endangerment to public health or welfare and is I

not limited to interference with U.S. air quality standards ,

or significant deterioration programs as is Section 126 of

the Clean Air Act.

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. The stress

to our ecosystems created by acid deposition is a function

of the total atmospheric loadings of sulfur and nitrogen

compounds. Surveys conducted over the past several years

established that there is a significant flow of these pol-

lutants 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 atmos-

pheric loadings over some sensitive areas in Canada and

that emission sources in Canada contribute significantly

to the loadings over some sensitive areas in the United

States.

Given our understanding of the impacts of acid dep-

osition and of the joint contribution of U.S. and Cana-

dian sources to the problem, I believe that the Section

115 authority could appropriately be used to develop

i iaaciaiaaeaieieiaiaaimaaiiiiiiiied

47a

solutions, provided that either the Secretary of State re-

quests action or that any relevant reports of —interna-

tional agencies state the existence of the problem and

that Canadian law and practice provide the U.S. with

essentially the same rights respecting emission sources

located in Canada.

The International Joint Commission which is a duly

constituted international agency under Section 115, has

recently transmitted a report which addresses the issue

of acid deposition. My view of the October 1980 Seventh

Annual Report on Great Lakes Water Quality of the

International Joint Commission (IJC) leads me to con-

clude that the IJC has found acid deposition results in

significant harm in both the U.S. and Canada and that

emission sources in both the U.S. and Canada contribute

to the problem through the long-range transport of air

pollution. The IJC Report states that “[a]cidic precipi-

tation is one widely known and serious example of a

problem associated with the long-range transport of air-

borne pollutants.” (Report at 49). The Report states

that “[vJirtually all of eastern Canada and portions of

the northeastern United States experience rains with

acidity equal to or exceeding that which can adversely

affect susceptible ecosystems. All parts of the Great

Lakes watershed are now receiving precipitation contain-

ing 5 to 40 times more acid than would occur in the

absence of atmospheric emissions. Many inland lake

ecosystems in the most susceptible parts of the Basin

may be irreversibly harmed within 10-15 years.” (Report

at 50). The Report also notes that “[a] substantial por-

tion of the Great Lakes drainage basin is potentially

susceptible to acidic precipitation, based on its bedrock

geology. The Sudbury, Muskoka and Haliburton areas of

Ontario and the Adirondacks of northern New York are

among the most heavily impacted areas in the world be-

cause their geology offers little buffering capacity to

their inland lakes. Some lakes in the Haliburton-Muskoka

area have lost 40-75 percent of their acid neutralizing

48a |

ability in a decade or less. These areas are now being

subjected to precipitation which is twice as acidic as that

which caused losses of major fish stocks in thousands of

Scandinavian lakes.” (Report at 50).

The Report points out “the massive and diffuse nature

of the [emission] sources throughout eastern North

America” (Report at 54) and notes that acid deposition

often occurs “many hundreds of miles from the source.”

(Report at 50).

Finally, the IJC recommends in the Report that the

Governments of the United States and Canada, “under-

take further actions to reduce atmospheric emissions of

the oxides of sulfur and nitrogen from existing as well

as new sources.” (Report at 5).

I have concluded that this report confirms my previ-

ously stated position that acid-deposition is causing sifi-

nificant environmental problems on both sides of the

U.S.-Canadian border due to emissions from U.S. and

Canadian sources.

The question of whether Canada “has given the United

States essentially the same rights” with respect to emis-

sion sources in Canada as is provided by Section 115 re-

quires consideration of recently enacted Canadian legis-

lation.

On December 17, 1980, the Canadian Parliament ap-

proved legislation which provides the Canadian federal

government with authority to adopt emission standards

for sources which contribute to air pollution related prob-

lems in another country. Specifically, Section 21.1(1)

of the legislation provides that where the Minister of

Envi*onment has reason to believe that an air contami-

nant emitted by a Canadian source or sources creates or

contributes to air pollution that may reasonably be ex-

pected 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

49a

(the highest federal executive authority) specific emis-

sion standards for the source or sources, in relation to

the air contaminant, either alone or in combination with

one or more other air contaminants, as he considers ap-

propriate to eliminate or significantly reduce the danger.

Under Section 21.1(2), if the Minister proposes a rec-

ommendation, the notice of the proposal is to be pub-

lished in the Canadian Gazette. A reasonable opportu-

nity 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 ap-

propriate province and provide the province with an op-

portunity 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 considered in making the recommenda-

tion under Section 21.1(1) has provided for “essentially

the same kind of benefits in favor of Canada with re

spect to abatement or control of air pollution as is pro-

vided in favor of the country” by the Canadian Clean

Air Act. In order to prescribe a specific emission stand-

ard with respect to non-federal sources, the Governor in

Council must conclude that reasonable efforts by the

Minister to procure reduction or elimination of the dan-

ger by the provincial government, have been unsuccess-

ful.

As with most legislation, it is possible that the Cana-

dian legislation could in the future be interpreted or

implemented in a way that the United States would con-

clude that it was not being given essentially the same

ania

50a

rights as were provided under Section 115. Thus, it is

not possible to make a permanently binding determina-

tion that Canada has given the United States essentially

the same rights based simply on a review of Canadian

authorizing legislation. EPA first determines that Cana-

dian legislation gives ample authority to the Government

of Canada to provide essentially the same rights to the

United States. Second, EPA must determine that the

Government of Canada is exericsing or interpreting 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 provide 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 fed-

eral official to make a finding or recommendation con-

cerning 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 interpreted to have essen-

tially the same coverage as the Section 115 phrase “en-

danger 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 provincial government fails to develop an ade-

quate remedy the federal government is authorized to

establish emission limitations. Each statute also requires

that the federal government provide opportunities for

* Emphasis not in original.

5la

public hearing on any proposed action and participation

in the hearing by an affected foreign government.

The principal difference in the two statutes is the de-

tailed procedural and substantive requirements applicable

to the State plan revision process under the U.S. Clean

Air Act as opposed to the more general requirement in

the Canadian legislation for provincial consultation and

reasonable efforts to secure action by the provincial gov-

ernment. In my judgment, that difference does not sig-

nificantly restrict the ability of the Government of Can-

ada to provide essentially the same rights to the United

States. The Canadian requirement for federal consulta-

tion and efforts to procure provincial action fills the same

role as the State plan revision process in the U.S. system.

Consequently, I have concluded that, despite the differing

process at the State and provincial levels, the Canadian

legislation does provide the Government of Canada with

ample authority to give essentially the same rights to

the United States as are provided by Section 115.

I should observe that the provisions of the Canadian

legislation do appear to provide the Minister of Environ-

ment with some discretion regarding the scope of the

remedy he must recommend, as well as the adequacy of

any remedies undertaken by the provincial government.

Similarly, the Governor Council is apparently provided

with discretion regarding final prescription of specific

emission standards as is the case for all regulations is-

sued under the Canadian Clean Air Act. For these rea-

sons, my determination that the Canadian legislation

provides essentially the same rights as Section 115 could

be changed should the U.S. conclude that future Cana- ~

dian actions interpreting or implementing their legisla-

tion were not giving essentially the same rights to the

US.

As you know, Section 115 is activated by giving formal

notification to the Governor of a specific State. EPA has

not yet determined which State or States will require

52a

notification under Section 115. I have instructed my

staff to examine this issue and to develop recommenda-

tions regarding the States which should receive formal

notification. Notification to a State under the Clean Air

Act is only the first of several steps in the plan revision

process. After receiving a plan revision notification, the

State must identify and propose control measures to ad-

dress the problem and provide opportunity for public

hearing prior to adoption and submittal to EPA.

Several factors will require the EPA make extraordi-

nary efforts to consult and cooperate with affected States

in this process. The acid deposition problem is clearly a

regional one which crosses numerous State boundaries.

The affected States will need to discuss the problem with

one another and EPA will need to assist them in this

effort. Second, since there are no established numerical

standards by which to assess the adequacy of acid dep-

osition mitigation measures, EPA and the affected States

will have to work closely on developing target levels for

State and regional emission reductions.

In summary, I believe the IJC Report confirms that

acid deposition is endangering public welfare in the U.S.

and Canada and that U.S. and Canadian sources con-

tribute to the problem not only in the country where they

are located but also in the neighboring country. Regard-

ing the requirement of reciprocal rights, I believe the

new Canadian legislation provides the Government of

Canada with ample authority to give the United States

essentially the same rights as Section 115. While this

conclusion is adequate to warrant the initiation of a

Section 115 based plan revision process in appropriate

States, I must emphasize that during such a process and

at the time of any final action, the Administrator must

continue to be able to find that Canada is giving the

United States essentially the same rights based on an

evaluation of Canada’s interpretation and implementa-

tion of its legislation.

58a

I appreciate your interest in this very important sub-

ject. EPA will continue to keep your office informed of

its actions on this matter.

Sincerely yours,

/s/ Douglas M. Costle

DOUGLAS M. COSTLE

54a

APPENDIX F

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 84-0853

STATE OF NEW YorK, et al.,

Plaintiffs,

Vv.

LEE M. THOMAS, et al.,

Defendants.

{Filed July 26, 1985]

ORDER

Upon consideration of the cross-motions for summary

judgment, the motion to dismiss, the supporting and op-

posing memoranda, and the entire record herein, and con-

sistent with the Memorandum Opinion of even date, it is

this 26th day of July, 1985,

ORDERED that the motion of intervenors to dismiss

be, and hereby is, denied; it is further

ORDERED that the motion of defendants for sum-

mary judgment be, and hereby is, denied; it is further

ORDERED that the motion of plaintiffs for summary

judgment be, and hereby is, granted and that summary

judgment be, and hereby is, entered in favor of plain-

tiffs; and it is further

ORDERED that defendant Administrator, if he deems

appropriate, determine, within ninety (90) days of the

55a

date of this Order, whether the finding of reciprocity by

former Administrator Costle remains viable; and it is

further

ORDERED that, if there is a finding of reciprocity,

defendant Administrator shall on or before one hundred

eighty (180) days thereafter, comply with his mandate

under section 115 by formally notifying the governors

of any state in which such emissions originate.

/s/ Norma Holloway Johnson

NorRMA HOLLOWAY JOHNSON

United States District Judge

56a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 84-0853

STATE OF NEW YORK, et al.,

Plaintiffs

LEE M. THOMAS, Administrator

United States Environmental Protection Agency,

Defendant.

[Filed Sept. 9, 1985]

Declaration of Charles L. Elkins

Charles L. Elkins declares that the following statements

are true and correct to the best of his knowledge and

belief and are based on his personal knowledge or on

information contained in the records of the U.S. Environ-

mental Protection Agency'(EPA) or supplied to him by

employees under his supervision at EPA.

1. I am the Acting Assistant Administrator of EPA’s

Office of Air and Radiation. As such, I am responsible

for programs under section 115 of the Clean Air Act.

2. Section 115 of the Ciean Air Act states that when

the Administrator of EPA determines that emissions of

air pollution in the United States “may reasonably be

anticipated to endanger public health or welfare in a

foreign country”, he shall “give formal notification

thereof to the Governor of the State in which such emis-

57a

sions originate”. That notification in turn acts as a

directive to the Governor to revise the air pollution con-

trol plan for the State—the “State implementation plan”

—so as to “prevent or eliminate the endangerment” on

which the finding was based.

3. On July 26, this Court found that certain letters

written by former Administrator Costle amounted to a

binding “endangerment” finding within the meaning of

section 115 as far as acid deposition damage in Canada

was concerned. The Court directed the Administrator

to issue section 115 notifications to Governors on or be-

fore April 23, 1986, assuming that he continued to find

that Canada met certain specific legal pre-requisites to

that notification.

4. On receipt of this Order, I directed my staff to

evaluate the information and steps necessary to imple-

ment this requirement. Based on a preliminary review,

EPA on August 9 filed in this case a motion stating that

the time allowed by the Court’s order for issuing these

notices was insufficient and that the order should there-

fore be modified. This affidavit sets forth with particu-

larity the steps that must be taken before issuing no-

tices under section 115, and the time that EPA estimates

would be necessary to take those steps.

5. I believe it is essential for EPA to analyze some of

the basic questions raised by any regulatory program

under section 115 and give guidance to the States on how

to answer them before States are called on to revise

their implementation plans under section 115. To my

mind there are three such questions, each following from

the one before it:

a. What types and quantitative levels of acid depo-

sition are harmful to health or welfare in Canada?

b. How can emissions from the United States be

linked quantitatively to damaging levels of acid

deposition in Canada?

58a

ec. How much must each individual State reduce its

emissions in order to eliminate or prevent health or

welfare damage in Canada?

The 1981 letters by former Administrator Costle did

not address these questions.

Defining Acceptable Pollution Levels

6. Section 115 requires control programs under it to

reduce emissions enough to “prevent or eliminate” the

environmental damage or damages that led to the issu-

ance of section 115 notices.

The first steps in defining such a reduction are to

specify (a) the damages caused by acid deposition and

(b) the levels of pollution that cause it.

The United States is funding a ten-year research pro-

gram on acid deposition under the Acid Precipitation Act

of 1980, 42 U.S.C. 8901, et seg. One of the major pur-

poses of this program is to answer the questions outlined

above.

At present it is impossible, based on the results of this

program and other research, and despite the four years

and $132 million already invested, to draw sound and

scientifically defensible quantitative links between acid

deposition and environmental damage.

7. Suggestions have been made that acid rain might

damage surface waters, forests, materials, commercial

crops and human health. I will briefly address our cur-

rent knowledge under each of these headings.

a. Of all the potential effects of acid deposition, the

impacts on lakes and streams are the best understood.

Yet even here, we still lack a firm scientific basis to

assess the current extent or magnitude of acid deposition

effects on inland waters either in the United States or in

Canada. Likewise there is no scientifically credille way

59a

to predict the future environmental consequences either

of continued present levels of acid deposition, or of re-

duced levels. Only the most crude “rules of thumb” are

available to policy makers, and our research to date has

shown them to be even less reliable than originally

thought.

Though research is beginning to change this picture,

it is still at the stage of answering very preliminary

questions. We have over the past 18 months spent ap-

proximately $10 million to carry out a statistically based

survey of lakes in the Eastern United States. This is

the first stage of a three-stage effort to determine the

geographical extent and magnitude of surface water

acidification in the United States. To the best of my

knowledge there is no equivalent statistically based sur-

vey under way in Canada.

These survey efforts, when they are completed, will

only tell us about current conditions. A separate though

related research effort will address the question of

changes in those conditions that current or reduced depo-

sition levels might produce. Since the extent and nature

of acid deposition damage to lakes and streams depends

largely on chemical and physical interactions between

the deposition and the local soil, this effort will attempt

to develop a quantitative understanding of those inter-

acticns. Between October of 1984 and October of 1987,

EPA will have spent eight million dollars and collected

and analyzed over 2400 soil samples to develop this quan-

titative prediction capability for the eastern United

States. We anticipate the first results of this effort early

in 1987. To the best of our knowledge no equivalent re-

search effort is currently under way in Canada.

b. The concern for possible forest effects of aed depo-

sition is based on widespread changes (including exten-

sive tree mortality) observed in some European forests

and a limited set of observations of changes in some

Eastern U.S. forests. Neither we nor the Europeans have

60a

established any clear cause of these forest changes. How-

ever, air pollution is among the suggested and scientifi-

cally plausible causes, and acid deposition is among the

air pollutants being evaluated as a cause of these effects.

To date no definitive link between acid deposition and

forest damage has been even qualitatively demonstrated

with any scientific validity. The U.S. government will be

spending $10 million in fiscal year 1985 and plans to

spend $17 million in fiscal year 1986 on researching this

problem. Because trees grow slowly and because the dy-

namics of forest growth are very complex, we anticipate

that several years of work will be needed to determine

qualitatively whether acid deposition affects forests. Ad-

ditional research would then be necessary to gain a quan-

titative understanding of these effects.

As with aquatic effects, before we can design a control

program we need an understanding of where the threat-

ened resources are found, and how much deposition re-

duction is needed to protect them. Much of the forest

research now under way would be applicable to Canada

to some degree. However, the distribution of tree species

and the environmental conditions of Canadian forests

differ significantly from those of most U.S. forests being

studied. Therefore, additional work either by Canadian

scientists or by the U.S. would be needed, even after the

research program described above had been completed,

and even assuming it demonstrated a quantitative link

between acid deposition and forest damage, before EPA

could reasonably determine that a given action under

section 115 would adequately prevent or eliminate dam-

age to Canadian forests.

c. We do have a qualitative understanding that acid

deposition causes materials damage. However, several

unanswered questions make it difficult to apply this

qualitative understanding to the actual design of a sec-

tion 115 control program,

6la

Acid deposition exists in several forms: as wet dep-

osition in the form of rain, snow, or fog or as dry

deposition in the form of sulfate and nitrate particulates

or as gaseous SO, deposited onto the surface of ma-

terials. The extent to which acid deposition causes ma-

terials damage appears to vary from material to ma-

terial, from one form of deposition to another, and

from one mechanism of exposure to another. For any

given exposure site, each different type of deposition is

likely to have different dominant sources found at dif-

ferent distances from the damaged material. This makes

it extremely difficult to determine the relative impor-

tance of local and distant sources in causing materials

damage. Similar problems arise in determining acid

deposition damage to surface waters and forests.

In addition, there are very limited data on the rate at

which various materials react to acid deposition. To de-

termine a reliable quantitative measure for the effect

of deposition on any particular material requires several

years of exposure and testing. Such work is now under

way to determine dose response functions for a number

of common materials but analytically useful results from

this research will take an additional one to four years.

When this knowledge is available, to apply it will re-

quire a quantitative understanding of the total amount

of materials being exposed and where they are located.

Such a materials inventory is being developed for the

U.S. However, to the best of my knowledge no such in-

ventory exists or is being developed for Canada.

Both a dose response function for affected materials

and a materiais inventory would be needed to determine

the extent of any emission reduction in the United States

needed to prevent or eliminate damage to materials in

Canada.

d. In addition to surface waters and forests, we have

attempted to evaluate the impact of acid deposition on

62a

agricultural crops and on human health. To date our

findings have failed to confirsa or establish any signifi-

cant or widespread effects. To make a definite determina-

tion that no significant damage is occurring in either of

these areas would be difficult and protracted because of

the inherent scientific difficulty of proving a negative.

e. The Goverment’s effort to find answers as quickly

as posisble to these and other acid deposition questions

has been significantly expanded in the past few years.

In 1982 $17.4 million was budgeted for this research, in

1983 $22.3 million, in 1984 $27.6 million, in 1985 $64.9

million, and in 1986 $85 million. In consequence the rate

of progress has been determined primarily by the inherent

time limits needed to conduct scientific research and not

by lack of budgetary support. There therefore seems to

be little that can be done in the near term to significantly

increase the rate of scientific progress. We also lack the

ability to accurately predict when we will answer the

questions that are now open since that itself also de-

pends on the nature and outcome of the current research

program.

The existing regulatory task most closely analogous to

the establishment of levels of harm under section 115

is the establishment of national ambient air quality

standards under section 109 of the Clean Air Act. That

section, like section 115,’ requires EPA to define pollu-

tion levels needed to protect public health and welfare.

The establishment of such standards is one of the most

intricate and resource-intensive tasks that the Clean

Air Act assigns to EPA due to the complexity and often

to the incompleteness of the scientific data involved. No

ambient air quality standard has ever been issued in

final form less than two years after a definite decision

to proceed with developing it. Even where aquatic dam-

age is concerned, the scientific information on acid rain

damages is not comparable to the information used to

make decisions on air quality standards.

63a

Long-Range Modelling

9. To design a control program under section 115

requires not just defining target levels of pollution in

Canada, but also relating emissions in the United States

quantitatively to Canadian target levels. That can only

be done by the use of mathematical models that simulate

the movement and the chemical transformation of pol-

lutants in the atmosphere over long distances.

EPA has consistently concluded that models such as

these do not yet produce results that are reliable enough

to be used in developing regulatory programs. 49 Fed.

Reg. 34751, 34863 (1984). Our understanding of the

chemical reactions that form acid deposition, the ways

such reactions actually might take place in the atmos-

phere, and the way the various pollutants involved might

be transported over hundreds of miles under different

weather conditions is too limited to serve as a foundation

for models with acceptable quantitative specificity.

A specific aim of research under the Acid Precipita-

tion Act of 1980 is to advance the development of acid

deposition models. The Regional Acid Deposition Model

(RADAM) now under development by the National Cen-

ter for Atmospheric Research under contract to EPA

represents the most intensive such pollutant modeling

effort ever undertaken. It was started in 1983 and is

scheduled to advance to the testing stage in 1987. Its

estimated development cost is $5 million, not including

an estimated $20 million that will have been spent on

atmospheric research to provide the model with its scien-

tific bases. We currently estimate that after testing be-

gins full evaluation of the model would require approxi-

mately two years to complete at a cost in excess of $30

million. Given the magnitude of the task and the high

priority already assigned to it, there is once again no

realistic possibility of accelerating this schedule by as-

signing more resources to it.

64a

Allocating Reduction Requirements

10. The final step in designing an acid rain control

program is to use such acid rain models as may even-

tually prove suitable, together with the target deposition

levels, to calculate for each state that receive a section

115 notice exactly what its total emission reduction must

be. None of the existing Clean Air Act programs calls

for such an allocation of emission reduction obligations,

and EPA therefore has no experience in designing or

implementing such an allocation program.

Designing such an allocation program would be a

major and complicated analytic task even after all the

scientific questions had been answered. It is far more

complicated given the pervasive uncertainty in both these

fields.

Beyond that, even a perfect scientific understanding

would not solve the question of allocation. Because acid

deposition is a regional phenomenon, involving the com-

bined emissions of hundreds of individual sources, there

are many different ways of reducing these emissions that

produce the same environmental effect. A reduction of

one million tons from State A and one and a half million

from State B may be the equivalent—as far as impact

on Canada is concerned—of a reduction of two million

tons from State A and one million from State B.

Scientific research by itself cannot answer which of

the technically acceptable allocations EPA should select.

The statute likewise fails to specify either an allocation

method or the factors that EPA should consider in de-

ciding on one. This lack of guidance means that a wide

variety of possible allocation methods will have to be

considered. Even the most obvious rules for choosing an

allocation method—for example, an allocation that mini-

mizes control costs, or one that minimizes social disrup-

tion—will be expensive and difficult to evaluate, particu-

larly given the number of sources involved, and are

potentially in conflict with each other.

65a

In my view there is no chance that States will develop

satisfactory plan revisions under section 115 unless EPA

specifies an allocation of emission reductions among them.

Absent this, each state will be under great pressure to

develop its revisions based on allocation assumptions that

minimize its control requirements, with the result that

as a whole the state plans will produce fewer emission

reductions than a national analysis would indicate is

called for.

Emission reduction obligations cannot be allocated

among states until the tools needed to calculate them—

deposition target levels in Canada, long range atmos-

pheric models, and the standards for allocating emission

reduction obligations—have been developed and the prob-

lem has been fully analyzed through their use. More-

over, the results will only be acceptable to those who

would be bound by them if they are developed with a

full opportunity for public comment, and will only be

legally binding if they are promulgated as rules. Finally,

it is certain that each step of EPA’s reasoning and anal-

ysis in deriving allocation levels will be subject to de-

tailed public comment.

A major rulemaking involving issues of this complexity

cannot be completed in less than a year and a half after

the supporting technical work needed to write it has been

fully completed.

11. It is impossible to say with confidence when the

open scientific questions that must be answered before

an acceptable control program can be devised will in fact

be answered. The research program described earlier for

deriving answers to these questions had set out what

responsible scientists believed to be the most efficient

approach for deriving scientifically respectable knswers.

If EPA were to pull together the incomplete results of

ongoing studies without waiting for any significant im-

provement in our current state of knowledge there could

be no assurance that an acceptable control program could

1 siti aeatiaiaenaaiaiitiaeniimeiial

66a

be based on these incomplete results. In any event be-

tween one and a half and two years will be necessary

even to assemble the existing data. As stated earlier,

rulemaking to embody the results in a legally binding

form, assuming the information provided the foundation

for such a step, will take a minimum of another year

and a half.

11. I declare under penalty of perjury that the fore-

going is true and correct to the best of my knowledge

and belief.

Executed on September 9, 1985

/s/ Charles L. Elkins

CHARLES L. ELKINS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.