# Petition for Writ of Certiorari — Queen of Ontario v. Thomas (Nos. 86-1373, 86-1374) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1874%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 ## Text 86 - 18 i 1 ic saws ~~ 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) ii 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..... py |b + Sn sss aaeciaiapiaiibiiieaaiile UP sniiitiinkerccnt iii sciaataitiapailtnadgpiaiinaaiiasilats EE Uh iiheatittintetstnsictinacciacicdiapctgaldidipaiaotinmmamial APPENDIX F-.......... silanes py | te nen 11 vi 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. 2 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. (c) 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. 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 a 4 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 5 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. 6 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 7 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. 8 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 9 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. 10 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 (c) “have been met.” Jd. at 19, n. 6. 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 11 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 12 ” 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. re sea Chis AYES IOP Ach al ON ee ie Sine Attn ta Mk MA rp be ast Mb ay Te Daw Reid le Ge A Aa is NN 13 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 14 (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 15 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. 16 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- 17 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. 18 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 la 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. 2a 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 v. 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 3a 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. I. Subsection (a) of §115 of the Clean Air Act, as amended by the Clean Air Act Amendments of 1977, Pub.L. No. 95-95, 91 Stat. 685, 710 (codified at 42 U.S.C. § 7415(a) (1982) ) provides: Whenever the [EPA] Administrator, upon receipt of reports, surveys or studies from any duly 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- 4a 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. 5a 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- 6a 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). II This case involves an unusual statute executed in an unexpected manner. On its face, § 7415 requires an EPA Administrator who has reason to believe in the existence of an international air 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 r ia 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). 8a 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 9a 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 V. 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 v. 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 v. 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 if 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 Go [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1874%3A1. Public record. Not legal advice.