Her Majesty the Queen in Right of Ontario v. U.S. E.P.A.
| Decision Date | 31 August 1990 |
| Docket Number | Nos. 88-1778,88-1780 and 88-1812,s. 88-1778 |
| Citation | 912 F.2d 1525 |
| Parties | , 286 U.S.App.D.C. 171, 59 USLW 2175, 20 Envtl. L. Rep. 21,354 HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Ian G. Scott, Q.C., Attorney General of Ontario, Jim Bradley, Minister of the Environment of the Province of Ontario, and Michael B. Vaughan, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Co., et al., National Coal Ass'n, Adirondack Mountain Club, Inc., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Bruce J. Terris, with whom James M. Hecker (for Her Majesty the Queen in Right of Ontario, et al.), Howard I. Fox (for Sierra Club and Izaak Walton League of America), Robert Abrams, Peter H. Schiff, David R. Wooley, and Joan Leary Matthews (for New York State Dept. of Law, Environmental Protection Bureau), Ann Seha (for the State of Minn.), J. Wallace Malley, Jr. (for the State of Vermont), Gary Powers (for the State of R.I.), James Tierney (for the State of Me.), Brian Comerford (for the State of Conn.), Charles Holtman (for the State of N.H.), James M. Shannon and Lee Breckenridge (for the Com. of Mass.), Paul Schneider (for the State of N.J.), and Hope Babcock (for Natl. Audubon Society) were on the briefs, for petitioners Her Majesty the Queen in Right of Ontario, et al. Jocelyn F. Olson also entered an appearance for petitioners.
Karen L. Egbert, Attorney, Dept. of Justice, with whom Richard B. Stewart, Asst. Atty. Gen., and E. Donald Elliott, Gen. Counsel, Alan W. Eckert, Associate Gen. Counsel, Charles S. Carter, Asst. Gen. Counsel, E.P.A. ("EPA"), and Steven M. Wellner, Atty., EPA, were on the brief, for respondents. Roger J. Marzulla also entered an appearance for respondents.
Henry V. Nickel, with whom Michael L. Teague, F. William Brownell, and Norman W. Fichtborn (for Alabama Power Co., et al.) and Michael B. Barr and Bruce D. Peterson (for National Coal Ass'n) were on the joint brief, for named intervenors.
Thomas A. Ulasewicz was on the brief for intervenor Adirondack Mountain Club, Inc.
Bruce J. Terris and James M. Hecker were on the brief for amici curiae Her Majesty the Queen in Right of New Brunswick, et al.
Richard A. Wegman and Harold G. Bailey, Jr. were on the brief for amicus curiae the Government of Canada.
Before WALD, Chief Judge, and MIKVA and BUCKLEY, Circuit Judges.
Opinion for the court filed by Circuit Judge BUCKLEY.
The question before us is whether the Environmental Protection Agency has any present obligation to take action under section 115 of the Clean Air Act, which establishes a procedure for the prevention of air pollutants in the United States from causing harm in the form of acid deposition to the public health and welfare in Canada. The Province of Ontario and a number of States and environmental groups have petitioned the EPA for a rulemaking that would essentially set in motion section 115's international pollution abatement procedures. We conclude, first, that section 115 does not require the EPA to initiate those procedures until it is able to identify the specific sources in the United States of pollutants that cause harm in Canada; and second, we are satisfied that the EPA is not as yet able to do so.
Section 115(a) of the Clean Air Act provides in relevant part as follows:
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 ..., the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate.
42 U.S.C. Sec. 7415(a) (1982). The Administrator's finding that pollution emitted in the United States contributes to such air pollution is referred to as an "endangerment finding."
Under section 115(b), the notice to the Governor of the State in which such emissions originate is deemed to be a finding that its State Implementation Plan ("SIP") under the Clean Air Act is inadequate and must be revised to the extent necessary "to prevent or eliminate the endangerment." Id. Sec. 7415(b); see id. Sec. 7410(a)(2)(H)(ii). (SIP's impose controls upon individual polluters within each State sufficient to ensure that national ambient air quality standards are met.) This process is referred to as the "SIP revision" procedure.
The remedy provided by section 115 is applicable "only to a foreign country 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." Id. Sec. 7415(c). This determination is known as a "reciprocity finding."
The dispute in this case is whether the EPA has a present obligation, under section 115, to promulgate endangerment and reciprocity findings as proposed rules with respect to U.S. emissions that allegedly result in harmful levels of acid deposition in Canada. Acid deposition is believed to result primarily from the transportation of sulphur and nitrogen oxide emissions into the atmosphere where they are converted, by chemical processes, into acids that, in combination with water vapors, precipitate in the form of "acid rain," often many hundreds of miles from their source.
Acid rain is alleged to have serious detrimental effects on lakes and streams, soils, crops, building materials, forests, and drinking water. Yet considerable uncertainty and controversy attend the issue, and debate continues over the geographic areas affected by acid rain, the types and extent of damage involved, ambient concentrations and deposition levels, and the ability of scientists to identify the specific sources of the emissions in the United States and Canada that may contribute to each country's and its neighbor's acid rain problem.
The EPA's view of section 115 is that the endangerment finding under section 115(a) is inextricably linked to the requirement that it notify the States whose SIP's must be revised under section 115(b); in other words, the EPA believes that it need not make an endangerment finding until it is able to identify the sources of the pollutants. Otherwise, it will not be able to give the required notification. It then argues that because it currently lacks sufficient information to be able to trace pollutants affecting the Canadian health and welfare to specific sources in the United States, it is not obliged to make endangerment findings at this time. In sum, under the EPA's interpretation, section 115 requires a "unitary proceeding."
Conversely, in petitioners' view the section 115 remedial process may be implemented in stages. They note, first, that the endangerment finding requires only that the Administrator believe that sources within the United States--not in a particular State--are harming Canada, and contend that once the EPA is able to make endangerment and reciprocity findings, it must do so. Petitioners argue that once those findings are made, the statute mandates that the Administrator "shall" proceed with abatement measures even though he may not yet be able to pinpoint the specific sources. They conclude that the EPA has already effectively made endangerment and reciprocity determinations, and therefore it is obliged to publish them as proposed rules; and having made those determinations, the agency may not simply refuse to take any corrective action while it continues to study the problem. Petitioners do not base their argument on a belief that the EPA can in fact trace pollutants to their specific sources at the present time.
The case before us has its origins in two letters written in January 1981 by EPA Administrator Douglas M. Costle to Secretary of State Edmund Muskie and Senator George Mitchell. See New York v. Thomas, 613 F.Supp. 1472, 1486-93 (D.D.C.1985) (), rev'd, 802 F.2d 1443 (D.C.Cir.1986), cert. denied, 482 U.S. 919, 107 S.Ct. 3196, 96 L.Ed.2d 684 (1987). In the letter to Secretary Muskie, Administrator Costle concluded 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." Id. at 1488. Administrator Costle's finding was based on the Seventh Annual Report on Great Lakes Water Quality issued by the International Joint Commission, id., an organization established by the United States and Canada. The IJC is concededly a "duly constituted international agency" for purposes of section 115(a).
In his letter, the Administrator also concluded that Canadian legislation regarding transboundary air pollution "provides the Government of Canada with authority to give the United States essentially the same rights as Section 115 of the Clean Air Act gives to Canada." Id. at 1487. Administrator Costle cautioned, however, that whether Canada in fact exercises or interprets that authority in a manner that provides essentially the same rights to the U.S. is a "dynamic" determination "which will continue to be influenced by Canadian action now and in the future." Id.
The Administrator's letter to Senator Mitchell contained the same assessments in somewhat greater detail, id. at 1488-93, with the additional statements that his conclusions on endangerment and reciprocity were "adequate to warrant the initiation 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." Id. at 1492. Administrator Costle also issued his findings in a press release dated January 16, 1981.
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