Thomas v. State of N.Y., Nos. 85-5970

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore MIKVA and SCALIA, Circuit Judges, and WRIGHT; SCALIA
Citation802 F.2d 1443
Parties, 256 U.S.App.D.C. 49, 55 USLW 2183, 16 Envtl. L. Rep. 20,925 Lee M. THOMAS, Administrator, United States Environmental Protection Agency, and Alabama Power Company, et al., Appellants, v. STATE OF NEW YORK, et al (Two Cases). Lee M. THOMAS, Administrator, United States Environmental Protection Agency, and National Coal Association, Appellants, v. STATE OF NEW YORK, et al. Lee M. THOMAS, Administrator, United States Environmental Protection Agency, and Commonwealth of Kentucky, Appellants, v. STATE OF NEW YORK, et al. Lee M. THOMAS, Administrator, United States Environmental Protection Agency, and State of Ohio, Appellants, v. STATE OF NEW YORK, et al.
Decision Date18 September 1986
Docket NumberNos. 85-5970,85-5972,85-5994,85-6113 and 85-6114

Page 1443

802 F.2d 1443
24 ERC 1913, 256 U.S.App.D.C. 49, 55
USLW 2183,
16 Envtl. L. Rep. 20,925
Lee M. THOMAS, Administrator, United States Environmental
Protection Agency, and Alabama Power Company, et
al., Appellants,
v.
STATE OF NEW YORK, et al (Two Cases).
Lee M. THOMAS, Administrator, United States Environmental
Protection Agency, and National Coal Association, Appellants,
v.
STATE OF NEW YORK, et al.
Lee M. THOMAS, Administrator, United States Environmental
Protection Agency, and Commonwealth of Kentucky, Appellants,
v.
STATE OF NEW YORK, et al.
Lee M. THOMAS, Administrator, United States Environmental
Protection Agency, and State of Ohio, Appellants,
v.
STATE OF NEW YORK, et al.
Nos. 85-5970, 85-5972, 85-5994, 85-6113 and 85-6114.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 15, 1986.
Decided Sept. 18, 1986.

Page 1444

Appeals from an Order of the United States District Court for the District of Columbia (Civil Action No. 84-853).

David C. Shilton, Atty., U.S. Dept. of Justice, with whom F. Henry Habicht II, Asst. Atty. Gen., Michael A. McCord, Anne S. Almy, Attys., U.S. Dept. of Justice and Charles S. Carter, Asst. Gen. Counsel, U.S.E.P.A., were on brief for appellant, Lee M. Thomas, Adm'r, U.S.E.P.A., Washington, D.C.

Henry V. Nickel, with whom F. William Brownell, Charles H. Knauss and Kerry A. Walsh Skelly, Washington, D.C., were on brief, for appellants Alabama Power Co., et al. and National Coal Ass'n in Nos. 85-5970, 85-5972 and 85-5994.

Michael B. Barr, with whom Charles D. Ossola, Washington, D.C., Douglas O. Metz and Dale P. Vitale, Larry G. Kopelman, Columbus, Ohio, were on brief, for appellants Com. of Ky. and State of Ohio and State of West Virginia in Nos. 85-6113 and 85-6114.

David R. Wooley, Albany, N.Y. with whom Howard Fox, Washington, D.C., was on brief, for appellees State of N.Y., et al.

Bruce J. Terris, with whom James M. Hecker, Washington, D.C., was on brief, for appellees Her Majesty the Queen in Right of Ontario, et al.

Gregory W. Sample, Augusta, Me., entered an appearance for appellee State of Maine.

Paul H. Schnieder, Clark, N.J., entered an appearance for appellee State of N.J.

Robert A. Whitehead and Kenneth N. Tedford, Hartford, Conn., entered appearances for appellee State of Conn.

Jocelyn F. Olson, Roseville, Minn., was on brief for amicus curiae State of Minn. urging affirmance.

Michael Schaefer, Indianapolis, Ind., was on brief for amicus curiae State of Ind. urging reversal.

John A. Thorner and Michael K. Glenn, Washington, D.C., were on brief for amici curiae American Paper Institute, et al., urging reversal.

Michael H. Holland and Earl R. Pfeffer, Washington, D.C., were on brief for amicus curiae United Mine Workers of America urging reversal.

Before MIKVA and SCALIA, Circuit Judges, and WRIGHT, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

On January 13, 1981, Douglas M. Costle, at that time Administrator of the Environmental Protection Agency, sent a letter to

Page 1445

then Secretary of State Edmund S. Muskie in which he 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." This appeal requires us to decide whether, under Sec. 115 of the Clean Air Act, 42 U.S.C. Sec. 7415 (1982), Administrator Costle's letter legally obligated his successors to identify the states in which pollution responsible for acid deposition originates and to order those states to abate the emissions.
I

Subsection (a) of Sec. 115 of the Clean Air Act, as amended by the Clean Air Act Amendments of 1977, Pub.L. No. 95-95, 91 Stat. 685, 710 (codified at 42 U.S.C. Sec. 7415(a) (1982)) provides:

Whenever the [EPA] 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.

Subsection (b) provides that the "formal notification" issued under subsection (a) shall operate to force each state to revise as much of its state implementation plan (SIP) as is "inadequate to prevent or eliminate the endangerment referred to in subsection (a)." (SIP's impose controls upon individual polluters within each state sufficient to ensure that national ambient air quality standards are met.) Finally, subsection (c) makes subsections (a) and (b) applicable only if the endangered foreign country is one "which the Administrator determines has given the United States essentially the same rights with respect to the prevention and control of air pollution occurring in that country as is given that country by this section."

On January 13, 1981, only days before President Reagan took office, outgoing EPA Administrator Costle wrote to then Secretary of State Muskie to express his belief that pollution emitted in the United States was at least partially responsible for acid deposition endangering public welfare in Canada. Acid deposition--often referred to as "acid rain"--is...

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25 practice notes
  • Fellner v. Tri-Union Seafoods, L.L.C., No. 07-1238.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 19, 2008
    ...to give preemptive effect to an agency letter where the prescribed procedures were not 539 F.3d 246 followed); Thomas v. New York, 802 F.2d 1443 (D.C.Cir.1986) Finally, the Supreme Court occasionally has confronted a claim that a federal agency's decision not to regulate should be granted p......
  • Safari Club Int'l v. Zinke, No. 16-5358
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 22, 2017
    ...and comment requirements ... by labeling a major substantive legal addition to a rule a mere interpretation."); Thomas v. New York , 802 F.2d 1443, 1447 (D.C. Cir. 1986) (explaining that if EPA’s endangerment finding was binding, then it was a "rule" that "could not be p......
  • Sierra Club v. Browner, No. Civ. A. 98-2733(CKK).
    • United States
    • U.S. District Court — District of Columbia
    • January 29, 2001
    ...(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 persuaded that nunc pro tunc relief is required simply because EPA missed the deadlines clearly......
  • New York v. U.S. Dep't of Health & Human Servs., 19 Civ. 4676 (PAE) (lead)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 6, 2019
    ...U.S. at 302 (substantive rules "affect[ ] individual rights and obligations" (internal citations omitted)); Thomas v. New York, 802 F.2d 1443, 1447 (D.C. Cir. 1986) (substantive rules "jeopardize or substantially affect the rights and interests of private parties" (inter......
  • Request a trial to view additional results
20 cases
  • Fellner v. Tri-Union Seafoods, L.L.C., No. 07-1238.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 19, 2008
    ...to give preemptive effect to an agency letter where the prescribed procedures were not 539 F.3d 246 followed); Thomas v. New York, 802 F.2d 1443 (D.C.Cir.1986) Finally, the Supreme Court occasionally has confronted a claim that a federal agency's decision not to regulate should be granted p......
  • Safari Club Int'l v. Zinke, No. 16-5358
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 22, 2017
    ...and comment requirements ... by labeling a major substantive legal addition to a rule a mere interpretation."); Thomas v. New York , 802 F.2d 1443, 1447 (D.C. Cir. 1986) (explaining that if EPA’s endangerment finding was binding, then it was a "rule" that "could not be p......
  • Sierra Club v. Browner, No. Civ. A. 98-2733(CKK).
    • United States
    • U.S. District Court — District of Columbia
    • January 29, 2001
    ...(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 persuaded that nunc pro tunc relief is required simply because EPA missed the deadlines clearly......
  • New York v. U.S. Dep't of Health & Human Servs., 19 Civ. 4676 (PAE) (lead)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 6, 2019
    ...U.S. at 302 (substantive rules "affect[ ] individual rights and obligations" (internal citations omitted)); Thomas v. New York, 802 F.2d 1443, 1447 (D.C. Cir. 1986) (substantive rules "jeopardize or substantially affect the rights and interests of private parties" (inter......
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5 books & journal articles
  • International Climate Action Without Congress: Does §115 of the Clean Air Act Provide Sufficient Authority?
    • United States
    • Environmental Law Reporter Nbr. 44-7, July 2014
    • July 1, 2014
    ...history links pollutants regulated by §115 to pollutants with established NAAQS, otherwise referred to as criteria pollutants”). 107. 802 F.2d 1443, 16 ELR 20925 (D.C. Cir. 1986), cert. denied , 107 S. Ct. 3196 (1987). 108. 912 F.2d 1525, 20 ELR 21354 (D.C. Cir. 1990). 109. New York v. homa......
  • The State Implementation Plan Process
    • United States
    • Air pollution control and climate change mitigation law
    • August 18, 2010
    ...Congress was capable of making such a 108. 42 U.S.C. §7415, CAA §115. 109. 613 F. Supp. 1472, 1476, 15 ELR 20748 (D.D.C. 1985). 110. 802 F.2d 1443, 16 ELR 20925 (D.C. Cir. 1986), cert. denied , 482 U.S. 91 (1987). 111. 912 F.2d 1525, 20 ELR 21354 (D.C. Cir. 1990). connection, however, and t......
  • Unlocking Willpower and Ambition to Meet the Goals of the Paris Climate Change Agreement (Part Two): The Potential for Legal Reform and Revision
    • United States
    • Environmental Law Reporter Nbr. 47-2, February 2017
    • February 1, 2017
    ...provision). 83. 42 U.S.C. §7604(a)(2). 84. Transboundary Air Pollution, Aug. 5, 1980, Can.-U.S., 32 U.S.T. 2521. 85. homas v. New York, 802 F.2d 1443, 16 ELR 20925 (D.C. Cir. 1986). 86. Her Majesty the Queen in Right of Ontario v. Environmental Prot. Agency, 912 F.2d 1525, 20 ELR 21354 (D.C......
  • Cap and Trade Under the Clean Air Act?: Rethinking §115
    • United States
    • Environmental Law Reporter Nbr. 40-9, September 2010
    • September 1, 2010
    ...47 the U.S. Court of Appeals for the District of section until it could determine speciic sources of the pollutant); homas v. New York, 802 F.2d 1443, 16 ELR 20925 (D.C. Cir. 1986) (dismissed on administrative procedure grounds). 48. Boundary Waters Treaty art. iii, U.S.-Gr. Brit., Jan. 11,......
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