Thomas v. State of N.Y., s. 85-5970
| Decision Date | 18 September 1986 |
| Docket Number | Nos. 85-5970,85-5972,85-5994,85-6113 and 85-6114,s. 85-5970 |
| Citation | 802 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. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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.
On January 13, 1981, Douglas M. Costle, at that time Administrator of the Environmental Protection Agency, sent a letter to 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.
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 believed to occur when certain pollutants are transported through the atmosphere and chemically altered by atmospheric processes before being deposited in either dry or wet form. Administrator Costle based his "endangerment" finding on a report issued by the International Joint Commission, concededly a "duly constituted international agency" for purpose of Sec. 7415(a). In his letter, Administrator Costle also concluded that newly enacted legislation authorized the Canadian government to provide the United States with essentially the same rights as the United States affords Canada under the Clean Air Act, although he recognized that this "reciprocity" finding "could be changed should the U.S. conclude that future Canadian actions interpreting or implementing their legislation were not giving essentially the same rights to the U.S." Administrator Costle sent a similar letter to Senator George Mitchell of Maine and announced his findings in a press release. No advance notice of Administrator Costle's actions was given, no comments were solicited, and neither the letters nor the findings were published in the Federal Register.
Administrator Costle's successors at the EPA did not regard his actions as sufficient to trigger any mandatory action under Sec. 7415. Consequently, several eastern states, national environmental groups, American citizens who own property in eastern Canada, and a Congressman sued the EPA in the United States District Court for the District of Columbia pursuant to the Clean Air Act's "citizen suit" provision, 42 U.S.C. Sec. 7604(a)(2), which provides that "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." The plaintiffs argued that the Costle letters imposed upon the current EPA Administrator a duty to identify 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, costly and perhaps impossible; the Court simply stated that "the obligation to identify the polluting states is incidental to giving formal notification." Id. at 1484 n. *. Likewise, the Court was untroubled that Administrator Costle made his findings in private correspondence, without notice, opportunity for comment, or publication in the Federal Register. The Court remarked that the EPA frequently uses correspondence to take "formal action" under the Clean Air Act, id. at 1484 n. **, and stated that publication of the Costle findings in the Federal Register "would be inappropriate for this kind of action because it is not a rule or policy statement," id. at 1484. The court ordered the EPA to reassess Administrator Costle's "reciprocity" finding and, if it remained accurate, to issue SIP revision notices within 180 days thereafter. On October 22, 1985, the current EPA Administrator found that reciprocity continues to exist between the United States and Canada. The District Court then stayed its order to permit the EPA to bring this appeal. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).
This case involves an unusual statute executed in an unexpected manner. On its face, Sec. 7415 requires an EPA Administrator who has reason to believe in the existence of an international air pollution problem to issue SIP revision notices to "the Governor" of "the State" responsible for it. In the context of a complex, multi-source pollution problem like acid deposition, identification of the problem does not necessarily bring with it identification of the blameworthy states. Had the statute been executed as Congress probably anticipated, the present suit would not have arisen. Notice of the "endangerment" and "reciprocity" findings would have been issued at the same time as the proposed SIP revision notices, comment would have been taken on both, and both would have been published in final form in the Federal Register. Cf. National Asphalt Pavement Ass'n v. Train, 539 F.2d 775, 778 (D.C.Cir.1976) ("National Asphalt ") (). Because Administrator Costle chose to issue the "endangerment" and "reciprocity" findings before...
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