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Flue-Cured Tobacco Coop. Stabilization Corp. v. EPA

Citation: 33 ELR 20113
No. Nos. 98-2407, -2473, 313 F.3d 852/(4th Cir., 12/11/2002) District court vacated

The court vacates a district court decision that the U.S. Environmental Protection Agency (EPA) violated its statutory obligations under the Radon Gas and Indoor Air Quality Act (Radon Act) by issuing a report that analyzed the effects of secondhand smoke on human health and categorized secondhand smoke as a known human carcinogen. The court first holds that the district court erred in hearing the case brought by tobacco manufacturers because the report was not a final agency action and, therefore, the court lacked subject matter jurisdiction. Although the report was the consummation of EPA's decisionmaking process, it did not give rise to legal consequences, rights, or obligations. The court also holds that the Radon Act explicitly prohibits the report from having any regulatory effect. The district court's conclusion that the report carried indirect regulatory effects sufficient to convert the report into reviewable final agency action was erroneous. The U.S. Supreme Court has held that agency action that carries no direct and appreciable legal consequences is not reviewable. Even if other agencies have relied on the report in imposing tobacco-related restrictions, these regulations are not direct consequences of the report, but are the product of independent agency decisionmaking. The actions and consequences complained of by the tobacco manufacturers did not legally flow from the report nor are they the result of legal rights or consequences created by the report.

[Prior decisions in this litigation are published at 25 ELR 20089 and 28 ELR 21445.]

Counsel for Plaintiffs
James K. Dorsett Jr.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan
2500 First Union Capitol Ctr., Raleigh NC 27602
(919) 821-1220

Counsel for Defendants
Alice Mattice
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000