Environmental Defense Fund v. Thomas

• Decision Date: 22 March 1989
• Docket Number: D,No. 475,475
• Citation: Environmental Defense Fund v. Thomas, 870 F.2d 892 (2nd Cir. 1989)
• Parties: , 57 USLW 2568, 19 Envtl. L. Rep. 20,660 ENVIRONMENTAL DEFENSE FUND, Natural Resources Defense Council, Sierra Club, National Parks and Conservation Association, State of New York, State of Connecticut, State of New Hampshire, Commonwealth of Massachusetts, State of Vermont, State of Minnesota, and State of Rhode Island, Plaintiffs, Environmental Defense Fund, Natural Resources Defense Council, Sierra Club, National Parks and Conservation Association, State of New York, State of Connecticut, State of New Hampshire, Commonwealth of Massachusetts, State of Vermont, State of Minnesota, Plaintiffs-Appellants, v. Lee M. THOMAS, Administrator of the U.S. Environmental Protection Agency, and the U.S. Environmental Protection Agency, Defendants-Appellees, Alabama Power Company, et al., Peabody Holding Company, Inc., Peabody Coal Company, Consolidation Coal Company, American Mining Congress, Asarco Incorporated, Magma Copper Company, Intervenors-Appellees. ocket 88-6142.
• Court: U.S. Court of Appeals — Second Circuit

Page 892

870 F.2d 892

29 ERC 1242, 57 USLW 2568, 19 Envtl.

L. Rep. 20,660

ENVIRONMENTAL DEFENSE FUND, Natural Resources Defense Council, Sierra Club, National Parks and Conservation Association, State of New York, State of Connecticut, State of New Hampshire, Commonwealth of Massachusetts, State of Vermont, State of Minnesota, and State of Rhode Island, PlaintiffsEnvironmental Defense Fund, Natural Resources Defense Council, Sierra Club, National Parks and Conservation Association, State of New York, State of Connecticut, State of New Hampshire, Commonwealth of Massachusetts, State of Vermont, State of Minnesota, Plaintiffs-Appellants, v.Lee M. THOMAS, Administrator of the U.S. Environmental Protection Agency, and the U.S. Environmental Protection Agency, Defendants-AppelleesAlabama Power Company, et al., Peabody Holding Company Inc., Peabody Coal Company, Consolidation Coal Company American Mining Congress, Asarco Incorporated, Magma Copper Company, Intervenors-Appellees.

No. 475, Docket 88-6142.

United States Court of Appeals, Second Circuit.

Argued Nov. 30, 1988.

Decided March 22, 1989.

David R. Wooley, Asst. Atty. Gen., State of N.Y.(Robert Abrams, Atty. Gen. of State of N.Y., Peter H. Schiff, Deputy Sol.Gen. of New York, of counsel), James T.B. Tripp, Environmental Defense Fund, New York City(Robert E. Yuhnke, Environmental Defense Fund, Boulder, Colo., of counsel), David Hawkins, Natural Resources Defense Council, Howard Fox, Sierra Club Legal Defense Fund, Washington, D.C., Hubert H. Humphrey III, Atty. Gen. of State of Minn.(Ann Seha, Sp. Asst. Atty. Gen., State of Minn., of counsel), Jeffrey L. Amestoy, Atty. Gen. of State of Vt.(J. Wallace Malley, Jr., Asst. Atty. Gen., State of Vt., of counsel), Joseph I. Lieberman, Atty. Gen. of State of Conn.(Brian Comerford, Asst. Atty. Gen., State of Conn., of counsel), Stephen Merrill, Atty. Gen. of State of N.H.(George Dana Bisbee, Asst. Atty. Gen., State of N.H., of counsel), James M. Shannon, Atty. Gen. of Comm. of Mass.(Lee Breckenridge, Asst. Atty. Gen., Comm. of Mass., of counsel), for plaintiffs-appellants.

Jacques B. Gelin, Dept. of Justice, Washington, D.C. (Myles E. Flint, Deputy Asst. Atty. Gen., Michael A. McCord, Robert L. Klarquist, Dept. of Justice, Gerald K. Gleason, U.S.E.P.A., Washington, D.C., of counsel), for defendants-appellees.

Henry V. Nickel, Washington, D.C. (Michael L. Teague, F. William Brownell, Norman W. Fichthorn, Hunton & Williams, Alfred V.J. Prather, Edwin H. Seeger, Kurt E. Blase, Prather Seeger Doolittle & Farmer, Washington, D.C., Michael S. Devorkin, John Jacob Rieck, Jr., Doar Devorkin & Rieck, Vincent R. FitzPatrick, Jr., Margaret Murphy, White & Case, New York City, Nancy C. Shea, James R. Bieke, Bruce C. Swartz, Shea & Gardner, Washington, D.C., of counsel), for intervenors-appellees.

Before VAN GRAAFEILAND, WINTER and MAHONEY, Circuit Judges.

WINTER, Circuit Judge:

This appeal involves the Clean Air Act, 42 U.S.C. Secs. 7401 et seq.(1982 and Supp. IV 1986)("the Act"), and in particular its bifurcated jurisdictional scheme for judicial review of decisionmaking by the Environmental Protection Agency("EPA").The Act provides that suits to compel the Administrator to perform non-discretionary duties may be brought only in district courts, while petitions seeking review of the Administrator's discretionary actions must be brought in the Court of Appeals for the District of Columbia.See, e.g., Citizens for a Better Env't v. Costle, 515 F.Supp. 264, 268(N.D.Ill.1981).Jurisdiction under the Act thus turns on the threshold question of whether the Administrator's challenged action (or inaction) is discretionary or non-discretionary.

In the instant appeal, a number of environmentalist groups, along with six states, have challenged the Administrator's failure to revise the "National Ambient Air Quality Standards"("NAAQS") for sulphur oxides ("SOx").SOx are causative agents of both acid rain and dry acid deposition--phenomena we will refer to collectively as "acid deposition."Judge Edelstein held that the Administrator's authority to revise those NAAQS is discretionary and that the district court therefore did not have jurisdiction to entertain the suit.Environmental Defense Fund v. Thomas, 85 Civ. 9507, 1988 WL 36332(S.D.N.Y.April 19, 1988).Although we agree that the Administrator has discretion to decide on the precise form and substance of the NAAQS at issue, we believe that under the circumstances the Administrator has a non-discretionary duty to make some formal decision whether to revise those NAAQS.Subsequent published actions by the Administrator have begun the process of decisionmaking, however, and we remand so the district court may enter an order that the rulemaking be continued to final decision.

BACKGROUND

The Clean Air Act was first passed in the 1960's and has since undergone two major legislative overhauls.The first of these overhauls, in 1970, established a multi-stage process for EPA evaluation of potential air pollutants.In the first stage, the EPA was, after scientific study, to publish "criteria" for the evaluation of any given potential pollutant.Section 108 of the Act, 42 U.S.C. Sec. 7408(1982).After the establishment of these "criteria," the EPA was to publish two types of initial NAAQS pursuant to Section 109 of the Act, 42 U.S.C. Sec. 7409(1982): (i) primary ambient air quality standards, designed to "protect the public health"; and (ii) secondary ambient air quality standards, designed to "protect the public welfare from any known or anticipated adverse effects associated with the presence of [a given] air pollutant in the ambient air."42 U.S.C. Sec. 7409(b).

The 1970amendments distinguished between pollutants for which criteria had been announced before 1970 and pollutants for criteria were announced after 1970.In the case of pollutants for which criteria had been announced before 1970(which included SOx), Sections 109(a)(1)(A) and (B) required the EPA to issue proposed initial primary and secondary NAAQS within 120 days of the passage of the 1970amendments.In the case of pollutants for which criteria were announced after 1970, the amendments required the EPA to issue proposed initial primary and secondary NAAQS simultaneously with its publication of "criteria."The 1970amendments added that both primary and secondary NAAQS "may be revised in the same manner as promulgated."42 U.S.C. Secs. 7409(b)(1) and (2).

The 1970amendments also introduced into the statute a bifurcated jurisdictional scheme.In Section 307 of the Act, the 1970amendments vested the Court of Appeals for the District of Columbia with exclusive jurisdiction to review a variety of rule promulgations and other "final actions" by the Administrator.42 U.S.C. Sec. 7607(b)(1982).In addition, Section 304 of the Act, the so-called "Citizen Suits" provision, permits any person to bring a civil action in a district court"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...."42 U.S.C. Sec. 7604(a)(2)(1982).

The second statutory overhaul occurred in 1977.These amendments added Section 109(d) concerning the "review and revision" of NAAQS, which provides that:

[n]ot later than December 31, 1980, and at five-year intervals thereafter, the Administrator shall complete a thorough review of the criteria published under Section 108 ... and promulgate such new standards as may be appropriate....The Administrator may review and revise criteria or promulgate new standards earlier or more frequently than required under this paragraph.

42 U.S.C. Sec. 7409(d)(1982).It is this section that plaintiffs seek to enforce by this action under Section 304.

The pollutants involved in this appeal, SOx, are causative or acid deposition and belong to the class of pollutants for which criteria had been issued before the 1970amendments.In 1971, the Administrator promulgated primary and secondary NAAQS for SOx. 36 Fed.Reg. 8186.The secondary NAAQS were reviewed by the Court of Appeals for the District of Columbia and were thereafter remanded to the Administrator with instructions to elaborate on their justification.Kennecott Copper Corp. v. EPA, 462 F.2d 846(D.C.Cir.1972).On that remand, the Administrator modified the secondary NAAQS.38 Fed.Reg. 25679(1973).The secondary NAAQS as modified were not designed to protect against the deleterious effects of SOx associated with acid rain and dry acid deposition--deleterious effects on water quality, wildlife, soils and forests, and corrosive effects of SOx on building materials, monuments and products.38 Fed.Reg. 25680(1973).Neither the primary SOx NAAQS as promulgated in 1971, nor the modified secondary SOx NAAQS of 1973, have been revised since.

In 1979, the Administrator undertook a review of the air quality criteria for SOx in response to the passage of Section 109(d)(1) in 1977. 44 Fed.Reg. 56731 col. 2 (1979).In 1982, that review resulted in the publication of new criteria both for SOx and for particulate matter, another pollutant, which includes forms of SOx, listed under Section 108.The new criteria described in some detail the ill effects associated with acid deposition.The Administrator did not, however, issue revised NAAQS for SOx.Indeed, the Administrator took no official public action, neither revising the existing standards nor formally declining to revise them.In 1984 and 1985, the EPA issued a three-volume "Critical Assessment" on the acid deposition effects of SOx.This did not constitute a formal revision of the SOx criteria, and the Administrator again took no action in conjunction with the issuance of this "Critical Assessment."

In 1985, appellants brought the instant case in the District Court for the Southern District of New York, pursuant to Section 304, the "Citizen Suits" provision of the...