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Wells v. United States

Citation: 17 ELR 20830
No. No. 85-3333, 655 F. Supp. 715/25 ERC 1694/(D.D.C., 02/02/1987)

The court holds that sovereign immunity has not been waived under the Federal Tort Claims Act (FTCA) for a suit by residents near Dallas, Texas, claiming harm from Environmental Protection Agency's (EPA's) failure to regulate lead pollution or warn of the hazard. The FTCA makes the United States liable only when it has breached duties owed plaintiffs analogous to duties prescribed by local law for private actors, and a violation of a duty imposed by federal statute alone is not enough. This "private liability" requirement is the foundation for the FTCA's discretionary function and misrepresentation exceptions to the waiver of sovereign immunity. Moreover, the discretionary function and misrepresentation exceptions bar finding that the United States is liable on a theory that it undertook a duty voluntarily even though the duty belonged to another, but then performed it negligently. The court holds that EPA's acts and omissions regarding lead pollution in the Dallas area comprised the formulation of regulatory policy, and thus fall within the discretionary function exemption. EPA has broad discretion in deciding how to manage pollution. The Clean Air Act in §§ 108 and 110 preserves this discretion for EPA to exercise its judgment as to what is the best course. Moreover, the court holds, the misrepresentation exception of the FTCA protects the EPA from liability for claims of misleading residents that they were being protected against lead pollution. The court suggests that the proper method for plaintiffs to redress their grievances is a possible suit under the Administrative Procedure Act or a petition in Congress.

Counsel for Plaintiffs
Frederick M. Baron, Charles S. Siegel
Baron & Budd
Dallas Fed'l Savings Tower, 10th Fl., Dallas TX 75225
(214) 369-3605

Counsel for Defendant
Arvin Maskin, Jo Brooks
Civil Division
Department of Justice, Washington DC 20530
(202) 724-6744