New England Legal Foundation v. Costle, Civ. No. H-78-414.

• Decision Date: 30 July 1979
• Docket Number: Civ. No. H-78-414.
• Court: U.S. District Court — District of Connecticut
• Parties: NEW ENGLAND LEGAL FOUNDATION et al. v. Douglas M. COSTLE et al.

475 F. Supp. 425

NEW ENGLAND LEGAL FOUNDATION et al. v. Douglas M. COSTLE et al.

Civ. No. H-78-414.

United States District Court, D. Connecticut.

July 30, 1979.

COPYRIGHT MATERIAL OMITTED

Wayne S. Henderson, Harrison A. Fitch, Boston, Mass., for plaintiffs.

Edward J. Walsh, Jr., Mineola, N. Y., Donald W. Stever, Jr., and Lydia N. Wegman, Dept. of Justice, Washington, D. C., Paul S. Shemin, Asst. Atty. Gen., New York City, Steven A. Tasher and Richard M. Hluchan, Deputy Attys. Gen., Trenton, N. J., for defendants.

MEMORANDUM OF DECISION

NEWMAN, Circuit Judge.^*

The plaintiffs in this action seek a declaratory judgment and injunctive relief based upon alleged violations of the Federal Clean Air Act, 42 U.S.C. § 7401 et seq., of federal common law, and of various constitutional provisions. Plaintiffs include three nonprofit organizations representing the interests of the citizens, businesses, and industries of Connecticut, thirty-one municipalities of Connecticut, and individual citizens and residents of Connecticut, who are concerned with the harmful effects felt in Connecticut from air pollution allegedly generated from New York and New Jersey. Defendants Costle and Beck are, respectively, the Administrator and Region II Administrator of the Environmental Protection Agency ("EPA"), and defendant Long Island Lighting Company ("LILCO") is a New York Corporation.¹

This matter is before the Court on defendants' motions to dismiss and for summary judgment, and on plaintiffs' motion for summary judgment. As the complaint raises different issues with respect to the federal and corporate defendants, EPA's motions will be considered separately from LILCO's.

Background of the Suit

To prevent and control air pollution, Congress passed the 1970 Amendments to the Clean Air Act ("the Act"). The Amendments foster cooperative effort between the federal government and the states to achieve air quality standards set by EPA. EPA's Administrator is required to promulgate national air quality standards for various pollutants to protect public health and welfare from the adverse effects of pollutants for which air quality criteria are available. 42 U.S.C. § 7409.² Each state must then develop a state implementation plan ("SIP"). The SIP establishes emission limitations and pollution abatement measures to ensure the attainment of air quality standards within the areas of the state that are designated by EPA as part of interstate or major intrastate air quality control regions ("control regions"). §§ 7404, 7410.

After a state adopts or revises a SIP, the plan must be approved by EPA. § 7410(a)(2). If the plan meets certain requirements, the Administrator is obligated to approve it. § 7410(a)(3). However, if the SIP is found deficient in whole or in part, and the state fails within 60 days of notification to revise the plan satisfactorily, the Administrator must promulgate and implement a plan correcting the deficiencies. § 7410(c).

Recognizing that many control regions had failed to meet national air standards because of inadequate state regulation and enforcement, and because of noncompliance by sources of pollution, H.R.Rep.No.95-294, 95th Cong., 1st Sess. 207-11 (1977), reprinted in 1977 U.S.Code Cong. & Admin.News, pp. 1077, 1286-90, Congress significantly amended the Act in 1977. The 1977 Amendments require each state to identify those areas that either do not meet national standards as of August 7, 1977, or may not meet the standards for sulfur dioxide or particulates by the applicable SIP deadline, or cannot be classified on the basis of available information for sulfur dioxide or particulate quality levels. § 7407(d). An area not meeting one or more national standards is to be designated as "nonattainment" for each pollutant as to which the pertinent standard is violated. § 7501(3).

After the designations are approved or modified by the Administrator, § 7407(d)(2) and (5),³ a state must revise its SIP before permitting the construction or modification after July 1, 1979, of any facility that will contribute to concentrations of any pollutant for which the area is "nonattainment." §§ 7410(a)(2)(I), 7501-7508. The revised plan must provide for attainment of national air quality standards no later than December 31, 1982, except that the deadline with respect to severe oxidant and carbon monoxide problems may be extended to as late as December 31, 1987. § 7502(a)(2). The revisions must implement all reasonably available control measures as expeditiously as practicable, require reasonable further progress toward attainment in the interim, including reductions through the use of reasonably available control technology, provide an inventory of actual emissions from all sources to assure that progress is made, and require permits for construction and operation of new or modified major pollution sources. § 7502(b).

Moreover, § 7410(a)(2)(E), as amended in 1977, requires SIP revisions that will prohibit any stationary source from interfering with another state's measures to attain national air quality standards, to prevent significant deterioration of existing air quality, and to protect visibility. Where there is an interstate control region, such as the New York-New Jersey-Connecticut region, EPA requires all of the states to revise their SIPs to account for the worst case of nonattainment among them for any national standard. Affidavit of William Baker, Chief of EPA Region II Air Programs Branch, Defendant's Appendix 4 to Motion to Dismiss and for Summary Judgment. In this case, New York and New Jersey are required to tailor their SIP revisions to take account of Connecticut's air quality for those pollutants for which Connecticut's control attainment is poorest.

All revisions for nonattainment areas must be submitted to EPA by January 1, 1979, and are to be in effect no later than July 1, 1979. P.L. 95-95, 95th Cong., 1st Sess., Title I, § 129(c), 91 Stat. 750.

The Suit Against EPA

The basic thrust of the plaintiffs' action against EPA is the agency's alleged failure to perform its statutory duties to revise the New York and New Jersey SIPs, in both their stationary source and transportation control aspects, in order to abate the transport of air pollutants from those states to Connecticut. Because EPA does not have a mandatory duty at this time to take any of the actions that the plaintiffs seek, the complaint fails to state valid claims against EPA.

The Clean Air Act, which provides the entire basis for this Court's jurisdiction over the subject matter of the complaint,⁴ establishes federal court jurisdiction over EPA in two ways. Section 7607(b) of Title 42 gives to the appropriate court of appeals exclusive jurisdiction to review EPA's regulations, orders, SIP approvals or disapprovals and revisions, and "any other final action of the Administrator . . . which is locally or regionally applicable" or which is not determined by the Administrator to have "nationwide scope or effect." The district courts are given jurisdiction under § 7604(a)(2) in a civil action against the Administrator only "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."

Plaintiffs bring their claims under § 7604(a)(2). Hence, to survive a motion to dismiss for failure to state a claim, the alleged actions by the Administrator must constitute a refusal to perform a non-discretionary duty imposed elsewhere in the Act, and must not be directly reviewable by the Court of Appeals for the Second Circuit under § 7607(b). See Oljato Chapter of Navajo Tribe v. Train, 169 U.S.App.D.C. 195, 515 F.2d 654 (1975); Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1353 (9th Cir. 1978); Environmental Defense Fund, Inc. v. Costle, 448 F.Supp. 89 (D.D.C.1978). Each of the plaintiff's claims will be considered separately to determine its validity under these prerequisites.

1. Revision of the New York and New Jersey SIPs

Plaintiffs allege that, on June 30, 1976, the Region II Administrator issued "Notices of Required Revisions" to the New York and New Jersey SIPs.⁵ The New York notice presented the Administrator's findings that the SIP was inadequate to attain standards for sulfur oxides in New York City, for particulate matter in New York City and portions of the Hudson Valley Region, and for photochemical oxidants throughout the New York portion of the New Jersey-New York-Connecticut Interstate Air Quality Control Region. The New Jersey notice presented the Administrator's findings that the SIP was inadequate to attain standards for photochemical oxidants and particulates in the New Jersey portion of the same control region.⁶

Plaintiffs further assert that the notices required the states to submit plan revisions by July 1, 1977, to include all readily available control measures, and by July 1, 1978, to include those necessary measures not readily available. The revisions were also to demonstrate that the proposed strategies would be adequate to attain the national air quality standards "as expeditiously as practicable." 41 Fed.Reg. 28625 (1976). If the Governors failed to send a letter of intent to comply with the notices, the EPA was to presume that the states would not prepare revisions, in which case the "EPA will begin to develop for promulgation a Federal plan to attain and maintain national standards." Id. at 28626.

Both New York and New Jersey have allegedly failed to revise their SIPs in accordance with the Notices of Required Revisions. Their plans, therefore, remain inadequate to attain the national standards for particulate matter, sulfur oxides, and photochemical oxidants, in violation of § 7410(a). Moreover, EPA has allegedly failed to correct the acknowledged SIP deficiencies by federal regulation as is its non-discretionary duty under § 7410(c).

In complaining of EPA's inaction, the plaintiffs have incorrectly assessed the effect of...