State of New York v. Thomas, Civ. A. No. 84-0853.
| Decision Date | 26 July 1985 |
| Docket Number | Civ. A. No. 84-0853. |
| Citation | 613 F. Supp. 1472 |
| Parties | STATE OF NEW YORK, et al., Plaintiffs, v. Lee M. THOMAS, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
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Howard Fox, Sierra Club Legal Defense Fund, Washington, D.C., for plaintiffs, Sierra Club Legal Defense Fund.
David R. Wooley, Asst. Atty. Gen., N.Y. State Dept. of Law, Albany, N.Y., for State of N.Y.
Thomas Y. Au, Harrisburg, Pa., for State of Pa. H. Cabanne Howard, James T. Kilbreth, Gregory Sample, Asst. Attys. Gen., Augusta, Me., for State of Me.
Lee Breckenridge, Asst. Atty. Gen., Environmental Protection Div., Boston, Mass., for State of Mass.
George D. Bisbee, Asst. Atty. Gen., Environmental Protection Div., Concord, N.H., for plaintiffs State of N.H.
Kenneth S. Kamlet, Washington, D.C., for National Wildlife Federation.
J. Wallace Malley, Jr., Asst. Atty. Gen., Montpelier, Vt., for State of Vermont.
Paul H. Schneider, Deputy Atty. Gen., Richard J. Hughes, Justice Complex, Trenton, N.J., for State of N.J.
Charles E. DiLeva, Asst. Atty. Gen., Providence, R.I., for State of R.I.
Robert A. Whitehead, Asst. Atty. Gen., Hartford, Conn., for State of Conn.
Jose R. Allen, D.J., Catherine A. Cotter, D.J., Land & Natural Resources Div., Washington, D.C., for William Ruckelshaus.
Michael B. Barr, Washington, D.C., for Alabama Power Co.
Charles D. Ossola, Washington, D.C., for National Coal Association.
Francis S. Blake, E. Donald Elliot, Vern R. Walker, Washington, D.C., for Cincinnati Gas & Electric.
Faith A. LaSalle, Asst. Atty. Gen., Providence, R.I., amicus curiae, State of R.I.
Lisa R. Tiegel, Sp. Asst. Atty. Gen., Roseville, Minn., for State of Minn.
Before the Court are a motion for summary judgment filed by plaintiffs and motions for summary judgment and to dismiss filed by defendant and defendant-intervenors in this action to compel the Administrator of the Environmental Protection Agency (EPA) to perform certain duties under the Clean Air Act, 42 U.S.C. § 7401 et seq. (1977). Plaintiffs are six states, four environmental associations, and four individuals who seek to alleviate damage occurring in eastern Canada allegedly caused by the international movement of harmful pollutants originating in the midwestern United States. Defendant is the Administrator of the EPA and is sued in his capacity as such. The National Coal Association and several industrial power companies were granted leave to intervene in these proceedings and filed briefs in support of defendant's motion to dismiss and for summary judgment. Plaintiffs seek an order compelling the Administrator to require emitting states to revise their State Implementation Plans (SIP's), as mandated under section 115 of the Clean Air Act, 42 U.S.C. § 7415, in order to abate the damage allegedly traceable to the transboundary air pollution.
This action has its origin in a letter written during the final days of the Carter Administration from Douglas M. Costle, then Administrator of the EPA, to former Secretary of State Edmund Muskie (Appendix A). This letter, dated January 13, 1981, concluded in part 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." Costle stated in the letter that his conclusion was based on a report issued by the International Joint Commission. Additionally, in his letter, Costle analyzed legislative provisions similar to section 115 passed by the Canadian Legislature on December 17, 1980, and concluded that these provisions afforded the United States essentially the same rights as Canada was given under United States law. Costle reiterated and expanded upon his conclusions in a letter sent to Senator George Mitchell (Appendix B) on January 13, 1981, and issued his findings in a press release dated January 16, 1981. Plaintiffs contend that the determinations made by Costle were sufficient to invoke section 115 of the Clean Air Act which, plaintiffs urge, sets in motion a process culminating in revision of SIP's by polluting states. No Administrator, however, has issued formal notification to the governor of any state from which such emissions originate, as would be required by the statute. Indeed, former Administrators Gorsuch and Ruckelshaus have stated their belief that Costle's actions were insufficient to invoke section 115. Whether section 115 applies in this case — and, if so, its effect — is at controversy in the present action.
Section 115 provides in pertinent part:
42 U.S.C. § 7415(a)-(c).
The Clean Air Act contains a citizen suit provision to permit enforcement of required actions under the Act by private citizens. This section states:
Except as provided in subsection (b), any person may commence a civil action on his own behalf ... against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator.... (b) Notice. No action may be commenced ... prior to 60 days after the plaintiff has given notice of such action to the Administrator....
42 U.S.C. § 7604.
Plaintiffs allege that under section 115 the Administrator is charged with performing a mandatory duty and due notice having been served upon him, they thus invoke jurisdiction under the citizen suit section. Whether the duties of the Administrator under section 115 are mandatory or discretionary is discussed more fully in Part III of this opinion, see infra pp. 1485-1486; however, as the Court concludes that the duties are mandatory, jurisdiction of this action properly lies in the district court under 42 U.S.C. § 7604. See Kennecott Copper Corporation, Nevada Mines Division, McGill, Nevada v. Costle, 572 F.2d 1349 (9th Cir.1978).
Intervenors argue further that, notwithstanding the provisions of 42 U.S.C. § 7604, jurisdiction of this action is exclusively vested in the United States Court of Appeals for the District of Columbia Circuit based on that court's recent decision in Telecommunications Research and Action Center v. Federal Communications Commission, 750 F.2d 70 (D.C.Cir.1984) (TRAC). Specifically, intervenors argue that under TRAC any action or inaction by the Administrator with respect to the Costle letters is reviewable only in the Court of Appeals for this Circuit pursuant to section 307 of the Clean Air Act. Section 307 provides for direct review by the court of appeals of "final action taken" in specific and enumerated instances. See 42 U.S.C. § 7607(b)(1). However, as the subject of the instant complaint is not "final action" and is not included among the specific statutory bases for appellate court jurisdiction, section 307 cannot apply.
Intervenors' reliance on TRAC is misplaced. Plaintiff in TRAC claimed that the FCC unreasonably delayed making a determination that AT & T was required to reimburse ratepayers for allegedly unlawful overcharges. Under the applicable statute, exclusive jurisdiction was conferred upon the court of appeals to determine the validity of "all final orders of the Federal Communications Commission." 28 U.S.C. § 2342(1) (1982); 47 U.S.C. § 402(a) (1982). The court of appeals held that its jurisdiction was exclusive over nonfinal matters as well by virtue of the exclusive jurisdiction provision coupled with the All Writs Act, 28 U.S.C. § 1651(a) (1982). The All Writs Act empowers federal courts to issue writs necessary to aid their respective jurisdictions. The court held that its authority would "extend to support an ultimate power of review, even though it is not immediately and directly involved." 750 F.2d at 76.
The present case differs markedly from TRAC. Rather than vesting ultimate review in the court of appeals, the Clean Air Act specifically defines the role the district courts are to play in its enforcement. Plaintiffs do not seek review of final agency action which would be cognizable under section 307. They seek review of an alleged failure to take action alleged to be mandatory. Although Costle's acts fall short of final action — as was the case in TRAC — there is no need — and, indeed, no authority — for the court of appeals to protect its prospective jurisdiction. The review of the failure to perform a nondiscretionary act is vested...
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