Natural Resources Defense Council, Inc. v. Train, 74 Civ. 4617.

Citation411 F. Supp. 864
Decision Date01 March 1976
Docket NumberNo. 74 Civ. 4617.,74 Civ. 4617.
PartiesNATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs, v. Russell TRAIN, Administrator Environmental Protection Agency, et al., Defendants.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

COPYRIGHT MATERIAL OMITTED

David Schoenbrod, Natural Resources Defense Council, New York City, for plaintiff; Marcia Cleveland, New York City, of counsel.

John S. Siffert, Asst. U. S. Atty., New York City, for defendants; Leslie A. Carothers, Washington, D. C., for EPA; Paul Kaplow, Washington, D. C., Dept. of Justice, of counsel.

MEMORANDUM

STEWART, District Judge:

Natural Resources Defense Council, Inc. ("NRDC") and other named plaintiffs bring this action against the Environmental Protection Agency ("EPA") and its administrator Russell Train for failure to list lead as a pollutant under § 108 of the Clean Air Act of 1970. Defendants have moved to dismiss the complaint for lack of jurisdiction and failure to state a claim or for an order granting summary judgment. Plaintiffs have also moved for summary judgment.

Plaintiffs have alleged four separate grounds upon which the court might find jurisdiction: 1) § 304 of the Clean Air Act, as amended, 42 U.S.C. §§ 1857h-2(a); 2) the Administrative Procedures Act, 5 U.S.C. §§ 701-706; 3) the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2; and 4) the mandamus provisions of 28 U.S.C. § 1361.

Section 304 of the Clean Air Act provides in pertinent part:

Any person may commence a civil action on his own behalf (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

Defendants argue that the listing of pollutants under § 108 is a discretionary function and therefore no jurisdiction is vested in this court by virtue of § 304. While § 304 does not provide jurisdiction over distinctly discretionary functions of the Administrator, see e. g., United States Steel Corp. v. Fri, 364 F.Supp. 1013 (N.D.Ind.1973), it does permit jurisdiction to decide whether a function is mandatory or discretionary. Cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1945).1 We therefore do not need to consider plaintiffs' other asserted jurisdictional grounds.

We turn now to the merits of plaintiffs' claim. Section 108 provides that the Administrator shall publish, and from time to time revise, a list including each air pollutant

(A) which in his judgment has an adverse effect on public health or welfare;
(B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and
(C) for which . . . he plans to issue air quality criteria under this section.

Plaintiffs contend that the statutory language, legislative history and purpose, as well as current administrative interpretation of the 1970 Clean Air Act, all militate in favor of finding that the Administrator's function to list pollutants under § 108 is mandatory, once it is determined by the Administrator that a pollutant "has an adverse effect on public health or welfare" and comes from the requisite numerous or diverse sources. Defendants concede in this action that lead comes from the requisite sources and that the Administrator has found lead to have the required "adverse effect." Defendants argue, however, that the language of § 108(a)(1)(C) "for which . . . the Administrator plans to issue air quality criteria" is a separate and third criterion to be met before § 108 requires placing a pollutant on the list. This construction of § 108(a) leaves the initial decision to list a pollutant within the sole discretion of the Administrator. Defendants contend such discretion is required because the Administrator must choose between alternative remedies provided in various sections of the Act and that any decision to utilize the remedies provided by §§ 108-110 "involves complex considerations." (Defendants' brief at 22).

Through analysis of the parties' arguments and of the various remedies and provisions of the Act, we have determined that the statutory scheme contemplates a mandatory duty on the part of the Administrator which is enforceable in the instant action.

Congress, in passing the Clean Air Act of 1970, was concerned with the delays and inefficiencies incurred in implementing the 1963 and 1967 air pollution acts. The House Report stated that "progress had been regrettably slow," citing "cumbersome and time-consuming procedures called for under the 1967 Act," "organizational problems on the federal level where air pollution control has not been accorded a sufficiently high priority" and "failure on the part of the National Air Pollution Control Administration to demonstrate sufficient aggressiveness in implementing present law." H.R.Rep. 91-1146, 91st Cong., 2d Sess. 5 (1970), U.S.Code Cong. & Admin.News, p. 5360. Thus, in the language of the 1970 Act, Congress attempts to achieve cleaner air by specifying procedures and timetables to be followed, all of which are reflective of Congress' determination "to speed up, expand, and intensify the war against air pollution in the United States." H.R.Rep. 91-1146, 91st Cong., 2d Sess. 1 (1970), U.S.Code Cong. & Admin. News, p. 5356.2

Defendants' main argument in support of its construction of the section as discretionary is that there are other sections within the Act which provide alternative remedies for lead pollution. The existence of alternatives, defendants contend, requires that the Administrator should have the discretion to choose among the remedies provided by the Act.

In addition to the explicitly stated purpose of the Act, as outlined above, we do not think that the statutory language supports defendants' construction of the Act. There is no language anywhere in the statute which indicates that the Administrator has discretion to choose among the remedies which the Act provides. Rather, the language of § 108 indicates that upon certain enumerated conditions, one factual and one judgmental, the Administrator "shall" list a pollutant which triggers the remedial provisions of §§ 108-110. The statute does not provide, as defendants would have it, that the Administrator has authority to determine whether the statutory remedies which follow a § 108 listing are appropriate for a given pollutant.

We think the reasonable reading of the disputed language in § 108 is that the Administrator must include on the initial list to be issued 30 days after December 31, 1970, all those pollutants "for which air quality criteria had not been issued before that date" but which pollutants he has already found in his judgment to have an adverse effect on public health or welfare and to have come from the requisite sources.3 The Senate Committee Report supports our reading of the language. The Report states that § 108 requires the initial list to "include all those pollution agents which have, or can be expected to have, an adverse effect on health and welfare and which are emitted from widely distributed mobile and stationary sources, and all those for which air quality criteria are planned." S.Rep.No.91-1196, 91st Cong., 2d Sess. 54 (1970). It is to the initial list alone that the phrase "but for which he plans to issue air quality criteria" is directed; the phrase cannot mean that the Administrator need not list pollutants which meet the two requisites clearly set forth in the section.4 Again, that construction would comport with neither the clear legislative intent to have strict mandatory health procedures in effect by mid-1976 nor the language of the Act itself. While the Administrator is provided with much discretion to make the threshold determination of whether a pollutant has "an adverse effect on health," after that decision is made, and after it is determined that a pollutant comes from the necessary sources, there is no discretion provided by the statute not to list the pollutant. We think that Congress intended to trigger the elaborate procedures of §§ 108-110 whenever the above two factors were found to exist.

Although we have found no authority which has directly confronted this question, § 108 has been construed to require listing of all pollutants for which the two enumerated criteria have been met. That was the interpretation initially placed upon the section by the Administrator on January 30, 1971. 36 Fed.Reg. 1515 (1971). That is the same construction which has been placed upon the section by other courts in dicta. See Indiana & Michigan Electric Co. v. EPA, 509 F.2d 839, 841 (7th Cir. 1975); Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 462 F.2d 846, 847 (1972).

With specific reference to the lead pollution at issue here and in support of their position that the Administrator should have discretion under the Act to choose among remedies provided by various sections, defendants point us to the Administrator's decision to regulate lead in gasoline under § 211(c)(1) 42 U.S.C. § 1857f-6c(c)(1).5 Defendants assert that the EPA considered regulating lead pollution either by setting national ambient air standards under § 108 or by establishing standards for the lead content of motor vehicle gasoline under § 211.6 However, as we read the two statutory sections, § 108 and § 211, they are neither mutually exclusive nor alternative provisions. Defendants' argument is premised upon the misconception, as discussed above, that the statutory scheme provides alternative remedies for pollutants. We think the misconception becomes clear through analysis of the specific case of lead pollution regulation.

Defendants state the reasons for the Administrator's decision to regulate lead under § 211.

It was the Administrator's judgment that (a) uniform standards would make industry compliance simpler than a proliferation of differing state standards, (b) federal controls at the refinery level would be more efficient than state or local controls directed at thousands of
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