New England Legal Foundation v. Costle, 630
| Decision Date | 20 May 1980 |
| Docket Number | D,No. 630,630 |
| Citation | 632 F.2d 936 |
| Parties | , 10 Envtl. L. Rep. 20,447 NEW ENGLAND LEGAL FOUNDATION et al., Plaintiffs-Appellants, v. Douglas M. COSTLE et al., Defendants-Appellees. ocket 79-6202. |
| Court | U.S. Court of Appeals — Second Circuit |
Wayne S. Henderson, Boston, Mass. (Kenneth O. Decko and John R. Rathgeber, Hartford, Conn., on the brief), for plaintiffs-appellants.
Nancy B. Firestone, Atty., Dept. of Justice, Washington, D. C. (Angus MacBeth, Acting Asst. Atty. Gen., Donald W. Stever, Jr., and Dirk D. Snel, Attys., Dept. of Justice, Washington, D. C.; Michele Beigel Corash, Gen. Counsel, Bruce M. Diamond and Lydia N. Wegman, Attys., EPA, Washington, D. C., on the brief), for federal defendants-appellees.
Robert F. Brooks, Richmond, Va. (W. Taylor Reveley, III, Robert M. Rolfe, and Hunton & Williams, Richmond, Va.; Edward J. Walsh, Jr., Mineola, N. Y., on the brief), for defendant-appellee LILCO.
Mary L. Lyndon, Asst. Atty. Gen., State of N. Y., New York City , for intervenor-appellee State of New York.
Before TIMBERS and KEARSE, Circuit Judges, and WERKER, District Judge. *
Appellants, a group of Connecticut citizens, municipalities and organizations, 1 appeal from a judgment entered in the District of Connecticut, Jon O. Newman, Circuit Judge, sitting by designation, dismissing, for failure to state a claim on which relief can be granted, appellants' complaint which sought declaratory and injunctive relief based upon alleged violations of the Clean Air Act, 42 U.S.C. §§ 7401-7642 (Supp. II 1978), and the federal common law of nuisance. New England Legal Foundation v. Costle, 475 F.Supp. 425 (D.Conn.1979). Appellants commenced this action because of the harmful effects of air pollution generated in New York and New Jersey which allegedly is carried into Connecticut by the prevailing westerly winds. Appellees are the Administrator and Regional II Administrator of the Environmental Protection Agency (EPA) and the Long Island Lighting Company (LILCO). The State of New York intervened on the side of appellees as a matter of right.
We assume familiarity with Judge Newman's thorough opinion of July 30, 1979 which reviews in detail the statutory and factual background of this action. We affirm that portion of the judgment of the district court which dismissed the complaint as against the federal appellees, substantially for the reasons set forth in Judge Newman's opinion. With respect to that portion of the judgment of the district court which dismissed the complaint as against LILCO, we reserve decision pending review by the Supreme Court of Illinois v. Milwaukee, 599 F.2d 151 (7 Cir. 1979), cert. granted, 445 U.S. 926 (1980).
Appellants' claims against the EPA are brought under 42 U.S.C. § 7604(a)(2), pursuant to which the district courts have jurisdiction in a civil action against the EPA only if it is alleged that the EPA refused to perform a non-discretionary duty imposed by the Clean Air Act. On appeal, appellants contend that they alleged three instances of EPA refusal to perform non-discretionary duties. We disagree.
First, appellants claim that the EPA has a mandatory duty under 42 U.S.C. § 7506(b) to suspend federal grants under the Clean Air Act because of the failure of the State of New York to implement transportation controls as required by 42 U.S.C. § 7410. The legislative history of § 7506(b), however, indicates that this provision applies only to revisions required by the 1977 amendments to the Act. H.Conf.Rep. No. 95-564, 95th Cong., 1st Sess. 156-58 (Aug. 3, 1977), reprinted in (1977) U.S.Code Cong. & Admin.News 1502, 1536-39. The New York transportation control plan was required under provisions in existence prior to the 1977 amendments.
Second, appellants claim that the EPA has a mandatory duty to enforce its 1973 findings that New York's transportation control plan was inadequate and its 1976 findings that the state implementation plans (SIPs) of New York and New Jersey were inadequate. 2 Here again the legislative history is dispositive. It demonstrates that the 1977 amendments nullified the EPA's duty to enforce its pre-amendment findings. S.Rep. No. 95-127, 95th Cong., 1st Sess. 55 (May 10, 1977).
Third, appellants claim that the EPA has a...
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Com. of Va. v. E.P.A.
...New England Legal Found. v. Costle, 475 F.Supp. 425, 430 (D.Conn.1979) (Jon O. Newman, J., sitting by designation), aff'd in part, 632 F.2d 936 (2d Cir.1980), and aff'd. in part, 666 F.2d 30 (2d Cir.1981).13 If EPA could dictate the control measures, why did Congress require in section 110(......
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...n.10, 276-77 (N.D.Ill.1981); New England Legal Foundation v. Costle, 475 F.Supp. 425, 428, 430, 431 n.7, 432 (D.Conn.1979), aff'd, 632 F.2d 936 (2d Cir. 1980), and 666 F.2d 30 (2d Cir. 1981); cf. United States Steel Corp. v. USEPA, 595 F.2d 207, 216-17 (5th Cir. 1979) (temporarily exempting......
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...it determines that a violation has occurred. New England Legal Foundation v. Costle, 475 F.Supp. 425, 433 (D.Conn.1979), aff'd, 632 F.2d 936 (2d Cir. 1980), and 666 F.2d 30 (2d Cir. 1981); cf. Wisconsin's Environmental Decade, Inc. v. Wisconsin Power & Light Co., 395 F.Supp. 313 (W.D.Wis.19......