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New England Legal Found. v. Costle

Citation: 10 ELR 20438
No. No. H-78-414, 475 F. Supp. 425/(D. Conn., 07/30/1979)

The district court dismisses, for failure to state a claim on which relief can be granted, a suit seeking principally to remedy the alleged failure of the Administrator of the Environmental Protection Agency (EPA) to prevent emissions of air pollutants in New Jersey and New York from interfering with air quality in Connecticut. Plaintiffs first challenged the Administrator's failure to promulgate federal plans for New York and New Jersey after he issued Notices of Required Revisions to the state implementation plans (SIPs) in 1976, and those states did not revise their SIPs. The court rules that in the 1977 amendments to the Clean Air Act Congress terminated pending enforcement measures by requiring across-the-board revisions of SIPs for all non-attainment areas and pollutants. The complex scheme embodied in the 1977 amendments relieved the Administrator of any non-discretionary duty that might previously have required him to take enforcement measures against noncompliant states. For similar reasons the court rejects plaintiffs' claim that the Administrator was required to promulgate a federal transportation control program to remedy deficiencies in New York City's plan. Plaintiffs also challenged EPA's failure to assess, pursuant to the 1977 amendments, whether a previously issued variance allowing the Long Island Lighting Company (LILCO) to burn fuel oil with a 2.8 percent sulfur content impermissibly interferes with Connecticut's program to prevent significant deterioration of air quality. Noting that New York has recently submitted to EPA proposed revisions to its SIP and that the Agency's deadline for acting on them has yet to expire, the court concludes that the Administrator is not yet subject to a non-discretionary duty enforceable by the court. Further, there is no basis under the Clean Air Act, the Fifth Amendment, the National Environmental Policy Act, or federal common law for plaintiffs' assertion that EPA is required to develop federal regulations designed to prevent transport of photochemical oxidants from New York to Connecticut. The court also dismisses that count of the complaint alleging that, because New Jersey's proposed SIP is inadequate under § 110(a)(2)(E), the Administrator must promulgate a list of major stationary sources within the state that have the potential to contribute to interstate air pollution. The adequacy of the state's proposed SIP is a matter to be determined by the Administrator in his discretion, a decision that is therefore reviewable only in the courts of appeals. The court dismisses plaintiffs' claim that EPA must withhold federal grants from New York and New Jersey because of their allegedly invalid SIPs, declaring this claim premature until the states have submitted and had approved revised SIPs pursuant to the 1977 amendments. Finally, the court dismisses a single claim against LILCO which alleges that the utility's burning of 2.8 percent sulfur fuel oil constitutes a nuisance under federal common law and thus is enjoinable. Since LILCO is burninghigh-sulfur oil pursuant to a variance from Clean Air Act standards, federal common law does not apply.

Counsel for Plaintiffs
Wayne S. Henderson, Harrison A. Fitch
New England Legal Foundation
110 Fremont St., Boston MA 02108
(617) 482-1410

Counsel for Federal Defendants
Angus C. MacBeth, Acting Ass't Attorney General; Nancy B. Firestone, Donald W. Stever Jr., Dirk D. Snel
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Michele B. Corash, General Counsel; Bruce Diamond, Lydia Wegman
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Counsel for Defendant LILCO
Robert F. Brooks, W. Taylor Reveley III, Robert M. Rolfe
Hunton & Williams
707 E. Main St., Richmond VA 23212
(804) 788-8200

Edward J. Walsh Jr.
Long Island Lighting Co.
250 Old Country Rd., Mineola NY 11501
(516) 228-2890

Counsel for Intervenor-Defendant State of New York
Robert Abrams, Attorney General; Mary L. Lyndon, Marcia L. Cleveland, Paul S. Shemin, Ass't Attorneys General
Two World Trade Center, New York NY 10048
(212) 488-4141