Reply Brief — Queen of Ontario v. Thomas (Nos. 86-1373, 86-1374)

*

Nos. 86-1373 and 86-1374

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

Supreme Court, U.S.

EILED

JUN 1 3987

ANIOL, JR.

a CLERK

STATE OF NEW YORK, et al.

LEE M. THOMAS, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

>

V.

Petitioners,

Respondent.

HeR MAJESTY THE QUEEN IN RIGHT OF ONTARIO, er ai..

Lee M. THOMAS, ADMINISTRATOR, UNITED STATES ENVIRON-

MENTAL PROTECTION AGENCY,

W.

Petitioners,

Respondent.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

COURT Of

REPLY BRIEF FOR PETITIONERS

O. PETER SHERWOOD

Solicitor General

(Counsel of Record)

PeTeR H. SCHIFF

Deputy Solicitor General

DaviD R. WOOLEY

MicHAeLt J. MOORE

Assistant Attorneys General

New York State Department

of Law

The Capitol

Albany. New York 12224

(518) 474-4819

Attorneys for Petitioners

State of New York, et al.

(Counsel continued on inside cover)

-"

‘ Washington, D.C. 20005

BRUCE J. TERRIS

(Counsel of Record)

JAMES M. HECKER

TERRIS, EDGECOMBE, HECKER &

WAYNE

1121 12th Street, N.W.

(202) 682-2100

RODERICK M. McCLeEob, Q.C.

Deputy Minister

Ministry of the Environment

135 St. Clair Avenue West

Toronto, Ontario M4V _ 1PS5

(416) 323-4272

Attorneys for Petitioners Her

Majesty the Queen in Right

of Ontario, et al.

ROBERT ABRAMS

Attorney General of New York

JAMES E. TIERNEY

Attorney General of Maine

JAMES M. SHANNON

Attorney General of Massachusetts

JEFFREY L. AMESTOY

Attorney General of Vermont

W. CARY EDWARDS

Attorney General of New Jersey

JAMES E. O'NEII

Attorney General of Rhode Island

JOSEPH I. LIEBERMAN

Attorney General of Connecticut

STEPHEN E. MERRILL

Attorney General of New Hampshire

HOWARD Fox

Attorney for private party

petitioners Sierra Club, et al.

Nos. 86-1373 and 86-1374

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

a

STATE OF NEw YorK, et ai.

Petitioners,

Vv.

LEE M. THOMAS, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

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

Petitioners,

V.

LEE M. THOMAS, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR PETITIONERS

1. Inits opposition, the federal respondent (hereafter referred

to as “EPA”) virtually ignores the unusual disposition of petition-

ers’ claim by the court of appeals’ decision in this case. Petition-

ers brought a citizen suit under Section 304 of the Clean Air Act

contending that the former Administrator of the U.S. Environ-

mental Protection Agency (EPA), Douglas Costle, made two

findings which triggered a mandatory duty under Section 115 of

that Act to take further regulatory action to abate international

air pollution. The court of appeals held that that asserted duty

was unenforceable solely because of the absence of notice and

comment on those findings under the Administrative Procedure

Act. Pet. No. 86-1373, App. A, pp. A-7 to A-8. It expressly

2

refused to decide whether, assuming the Costle findings were

procedurally correct, they gave rise to a mandatory duty on EPA

under Section IIS. Jbid.

Nevertheless, EPA defines the question presented as whether

the Costle findings “gave rise to a legally binding and nondiscre-

tionary duty on the part of the current Administrator to take

regulatory action under Section II5 * * *,” regardless of whether

they were preceded by notice and comment. Fed. Opp., Question

Presented. While that is a fair statement of the ultimate issue in

this case, it avoids the threshold procedural question under the

APA that the court of appeals found to be dispositive. '

Most of the arguments raised by EPA are simply irrelevant to

both this threshold issue and the ultimate issue concerning Sec-

tion IIS of the Clean Air Act. For example, it is irrelevant

whether acid rain is the subject of bilateral discussions between

United States and Canada (Fed. Opp. 5-7, 14, 22), whether EPA

is also researching acid rain under the Acid Precipitation Act of

1980° (id. at 4-5, 22), and whether former Administrator Costle’s

successors decided it was “unwise” to use Section 115 to control

acid rain because of its “complexities and uncertainties” (id. at

15, 22). In addition, although arguments whether Congress

intended Section IIS to apply to a multi-source problem such as

1. The industry respondents argue that despite Congress’ choice of the word

“belief to describe the type of threshold finding of endangerment necessary

under the statute, such beliefs can not create future legal obligations unless they

are formalized through rulemaking procedures. Ind. Opp. 13-15. Otherwise,

they argue, even a stray remark by the Administrator in the hallway outside his

office could trigger a duty to undertake regulatory action. Jd. at 14. However,

the word “belief,” in the context used by Congress here, obviously requires both

an objective manifestation of assent and the intent to convey it. We demon-

strated in our petitions (No. 86-1373, pp. 5-6; No. 86-1374, pp. 7-8) that

Costle’s findings in the present case satisfy both requirements. Indeed, Costle

expressly stated that his findings were “adequate to warrant the initiation of a

Section IIS based plan revision process in appropriate States” ( Pet. No. 86-1373,

App. B, p. A-41). In any event, this argument, like those of EPA, was not

reached by the court below and is not relevant to the threshold issue before this

Court. It provides no basis for the denial of a writ of certiorari.

2. This Act is merely a research funding bill which specifically states that it

is not intended to restrict, modify, or expand the scope of existing law. 42

U.S.C. 8904(b)

acid rain (id. at 4, 19-20), or whether a mandatory duty arises

under Section II5 only after EPA identifies and notifies the offend-

ing states (id. at 9-10, 14-16) relate to the ultimate issue of

whether a mandatory duty exists under Section IIS, they are

irrelevant to the court of appeals’ decision that notice and com-

ment are required on the Costle findings.

2. After these irrelevant arguments are excised from EPA's

opposition, its remaining arguments reveal a fundamental unwill-

ingness to accept the full consequences of the court of appeals’

decision. Thus, EPA states (Fed. Opp. 21):

[T]his case does not present the question of whether the

threshold findings that trigger the obligation to conduct a

rulemaking under various other environmental statutes

are themselves rules that must be promulgated in accord-

ance with notice and comment requirements.

Instead, EPA contends that these rulemaking procedures only

apply to the attempted use of Section IIS of the Clean Air Act “to

rectify the problem of acid deposition.” Jbid.*

EPA presents no legal basis for such a distinction, and there is

none. The application of APA rulemaking procedures obviously

does not depend on the particular type of pollution addressed by a

threshold finding. A rule under the APA is defined in terms of

the applicability and effect of agency findings, not their subject

matter. 5 U.S.C. 551(4).

EPA’s argument is therefore nothing less than a strained

attempt to justify the application of a legal principle in the pre-

sent case and deny its applicability to all similar cases in the

future. We submit that EPA has taken this approach because it

simply cannot accept the full consequences of the court of

appeals’ decision. As Ontario has explained in its petition (No.

86-1374, pp. 14-15), that decision would mean that EPA would

3. By seeking to distinguish threshold findings under Section II5 of the Clean

Air Act with similar such findings “under various other environmental statutes”

(Fed. Opp. 21), EPA assumes that the court of appeals’ decision applies only to

threshold findings under one section of the Clean Air Act. However, as New

York has demonstrated in its petition (No. 86-1373, pp. 20-21), similar thresh-

old findings are contained in many other sections of the Clean Air Act itself.

4

have to conduct rulemakings to issue threshold findings under

numerous other provisions of the Clean Air Act and many of the

other environmental statutes it administers. By simply stating as

an ipse dixit that the decision below does not apply to other

indistinguishable statutory provisions, EPA implicitly recognizes

that such a legal principle would seriously interfere with its regu-

latory efforts by multiplying the number of rulemaking proceed-

ings necessary to issue a final rule.

3. Neither EPA nor industry have persuasively explained the

linchpin of the court of appeals’ decision, j.e., that agency findings

are rules under the APA if their only effect is to trigger a statu-

tory duty to take further regulatory action specified by Congress.

As we have shown in our petitions ( No. 86-1373, pp. 15-17; No.

86-1374, pp. 15-16), this reasoning is clearly erroneous. The

Costle findings are not rules because they are not applicable to

anyone and do not impose any duties on anyone. No state or

polluter need take any action based on those findings.

Once those findings are made, Congress has directed in Section

115 that certain further action by EPA must occur. However,

this binding effect of the findings is solely one of Congressional

origin. It therefore makes no sense for such a Congressionally-

created “rule” to be preceded by notice and comment.

EPA does not deny that former Administrator Costle made the

two findings of endangerment and reciprocity specified in Section

115. Furthermore, neither EPA nor the industry respondents

makes any effort to explain the need for notice and comment prior

to the issuance of the Costle findings. As we have shown in our

petitions (No. 86-1373, pp. 4-5, 20; No. 86-1374, pp. 6-9), even

without such an opportunity, the public would have at least two

other opportunities for notice and comment before any emission

control requirements could be imposed on anyone to control acid

rain. Neither EPA nor industry deny that this is correct. Fur-

thermore, neither EPA nor industry identify any way in which

they or the public are prejudiced if a third opportunity for notice

and comment is omitted. There is therefore no reason for further

5

notice and comment before EPA takes the next step which Con-

gress has directed.

For the foregoing reasons and the reasons stated in the peti-

tions, we respectfully submit that the petitions for a writ of certio-

rari to review the judgment of the Court of Appeals for the

District of Columbia Circuit should be granted.

ROBERT ABRAMS

Attorney General of the State

of New York

O. PeTeR SHERWOOD

Solicitor General

(Counsel of Record in

No. 86-1373)

Peter H. Scuirr

Deputy Solicitor General

Davip R. WooLey

MICHAEL J. MOORE

Assistant Attorneys General

New York State Department

of Law

The Capitol

Albany, New York 12224

(518) 474-4819

JAMES M. SHANNON

Attorney General of the

Commonwealth of Massachusetts

JANET MCCABE

Lee BRECKENRIDGE

Assistant Attorneys General

Commonwealth of Massachusetts

One Ashburton Place, 19th Floor

Boston, Massachusetts 02108

(617) 727-2265

James E. TIERNEY

Attorney General of the State of

Maine

GREGORY W. SAMPLE

Assistant Attorney General

State of Maine

Office of the Attorney General

State House, Station 6

Augusta, Maine 04333

(207) 289-3661

Bruce J. Terris

(Counsel of Record in

No. 86-1374)

JAMES M. HECKER

Terris, EnGecomBe, Hecker &

WAYNE

1121 12th Street, N.W.

Washington, D.C. 20005

(202) 682-2100

Roperick M. McLeop, QC.

Deputy Minister

Ministry of the Environment

Government of the Province

of Ontario

135 St Clair Avenue West

Toronto, Ontario M4V IPS

Attorneys for Petitioners Her

Majesty the Queen in Right

of Ontario, et al.

JEFFREY L. AMESTOY

Attorney General of the Sate of

Vermont

J. WALLACE MALLEY, JR

Assistant Attorney General

State of Vermont

Office of the Attorney General

109 State Street

Montpelier, Vermont 05602

(802) 828-3171

JAMES E. O'NEI

4ttorney General of the State

of Rhode Island

GARY POWERS

Special Assistant Attorney

General

State of Rhode Island

Office of the Attorney Genera.

72 Pine Street

Providence, Rhode Island 02903

(401) 274-4400

JOSEPH |. LIEBERMAN

4ttorney General of the State

of Connecticut

ROBERT WALSH

issistant Attorney General

State of Connecticut

State Office Building, Rm. 147

Hartford, Connecticut 06106

(203) 566-7213

STEPHEN MERRILI

{ttorney General of the State of

Vew Hampshire

DANA BISBEt

issistant Attorney General

Environmental Protection

Division

State of New Hampshire

State House Annex

25 Capnol Street

Concord, New Hampshire 03301

(603) 271-3679

W. Cary EDWARDS

Attorney General of the State

of New Jersey

PAUL SCHNEIDER

Deputy Attorney General

Office of the Attorney General

Richard J. Hughes Justice

Complex (CN-112)

Trenton, New Jersey 08625

(609) 984-5612

HOWARD Fox

Attorney for Petitioners

Sierra Club

Natural Resources Defense

Council

National Audubon Society

National Wildlife Federation

Honorable Richard Ottinger

Robert & Janet Townsend

Ellen Edith Desmond

Sierra Club Legal Defense Fund

S16 P Street, N.W., Suite 300

Washington, D.C. 20005

(202) 667-4500

June 1987