State of New York v. Thomas, Civ. A. No. 84-0853.

CourtUnited States District Courts. United States District Court (Columbia)
Citation613 F. Supp. 1472
Docket NumberCiv. A. No. 84-0853.
PartiesSTATE OF NEW YORK, et al., Plaintiffs, v. Lee M. THOMAS, et al., Defendants.
Decision Date26 July 1985

613 F. Supp. 1472

STATE OF NEW YORK, et al., Plaintiffs,
v.
Lee M. THOMAS, et al., Defendants.

Civ. A. No. 84-0853.

United States District Court, District of Columbia.

July 26, 1985.


613 F. Supp. 1473
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613 F. Supp. 1474
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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.

613 F. Supp. 1476

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.

MEMORANDUM OPINION

NORMA HOLLOWAY JOHNSON, District Judge.

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.

I. FACTUAL BACKGROUND

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

613 F. Supp. 1477
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:

(a) 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 or whenever the Secretary of State requests him to do so with respect to such pollution which the Secretary of State alleges is of such a nature, the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate.
(b) The notice of the Administrator shall be deemed to be a finding under section 7410(a)(2)(H)(ii) of this title which requires a plan revision with respect to so much of the applicable implementation plan as is inadequate to prevent or eliminate the endangerment referred to in subsection (a) of this section. Any foreign country so affected by such emission of pollutant or pollutants shall be invited to appear at any public hearing associated with any revision of the appropriate portion of the applicable implementation plan.
(c) This section shall apply 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.

42 U.S.C. § 7415(a)-(c).

II. JUSTICIABILITY

A. Statutory Basis for Jurisdiction

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).

B. Applicability of TRAC

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

613 F. Supp. 1478
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...

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5 practice notes
  • Sierra Club v. Browner, No. Civ. A. 98-2733(CKK).
    • United States
    • U.S. District Court — District of Columbia
    • January 29, 2001
    ...to the deadline that has passed. See, e.g., Sierra Club v. Thomas, 658 F.Supp. 165, 171 (N.D.Cal.1987); New York v. Thomas, 613 F.Supp. 1472, 1476, 1481-86 (D.D.C.1985), rev'd on other grounds. Thomas v. State of New York, 802 F.2d 1443 (D.C.Cir.1986). Accordingly, this Court is not persuad......
  • Heineman v. S & S MACHINERY CORP., No. CV-86-3841.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • October 23, 1990
    ...charges that he personally profited from his acts, the officer may be liable on the contract claim. Id.; see also Armada, supra, 613 F.Supp. at 1472. Because Saul Waller has been charged and implicated in several instances of potential misrepresentation, including the promise of additional ......
  • Berry v. City of Little Rock, No. LR-C-95-290.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • October 12, 1995
    ...801 (D.C.Cir.1987) (finding the "traceability" and "redressability" requirements to be closely related), see also New York v. Thomas, 613 F.Supp. 1472, 1481 (D.D.C.1985) ("Causation and redressability are inseparable in the present case because the relief the plaintiffs seek is an injunctio......
  • Thomas v. State of N.Y., Nos. 85-5970
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 18, 1986
    ...the states responsible for acid deposition and to issue SIP revision notices to them. The District Court agreed. New York v. Thomas, 613 F.Supp. 1472, 1481-86 (D.D.C.1985). The court was not troubled by the EPA's argument that identifying which states to notify would be time consuming, cost......
  • Request a trial to view additional results
5 cases
  • Sierra Club v. Browner, No. Civ. A. 98-2733(CKK).
    • United States
    • U.S. District Court — District of Columbia
    • January 29, 2001
    ...to the deadline that has passed. See, e.g., Sierra Club v. Thomas, 658 F.Supp. 165, 171 (N.D.Cal.1987); New York v. Thomas, 613 F.Supp. 1472, 1476, 1481-86 (D.D.C.1985), rev'd on other grounds. Thomas v. State of New York, 802 F.2d 1443 (D.C.Cir.1986). Accordingly, this Court is not persuad......
  • Heineman v. S & S MACHINERY CORP., No. CV-86-3841.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • October 23, 1990
    ...charges that he personally profited from his acts, the officer may be liable on the contract claim. Id.; see also Armada, supra, 613 F.Supp. at 1472. Because Saul Waller has been charged and implicated in several instances of potential misrepresentation, including the promise of additional ......
  • Berry v. City of Little Rock, No. LR-C-95-290.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • October 12, 1995
    ...801 (D.C.Cir.1987) (finding the "traceability" and "redressability" requirements to be closely related), see also New York v. Thomas, 613 F.Supp. 1472, 1481 (D.D.C.1985) ("Causation and redressability are inseparable in the present case because the relief the plaintiffs seek is an injunctio......
  • Thomas v. State of N.Y., Nos. 85-5970
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 18, 1986
    ...the states responsible for acid deposition and to issue SIP revision notices to them. The District Court agreed. New York v. Thomas, 613 F.Supp. 1472, 1481-86 (D.D.C.1985). The court was not troubled by the EPA's argument that identifying which states to notify would be time consuming, cost......
  • Request a trial to view additional results

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