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Natural Resources Defense Council v. Train

ELR Citation: 7 ELR 20004
Nos. No. 76-6075, 545 F.2d 320/9 ERC 1425/(2d Cir., 11/10/1976) Aff'd

The Second Circuit Court of Appeals affirms a lower court's order requiring the EPA Administrator to list lead as an air pollutant under §108(b)(1) of the Clean Air Act. Once a pollutant is listed under that section, the Administrator must establish ambient air quality standards for it and the states are required under §110(a)(1) to make provision in their air quality implementation plans for attaining and maintaining those standards within three years. The Administrator does not have the discretion to control lead by merely regulating its content in gasoline under §211 of the Act rather than also listing it as a pollutant under §108. EPA's contrary interpretation would, if accepted, vitiate the public policy underlying the statute and set forth in its legislative history. The Administrator's view also ignores the mandatory language of §108(a)(1)(A) and (B), which directs listing for an air pollutant which comes from diverse mobile or stationary sources and has an adverse effect on public health. Furthermore, the legislative history indicates that the language in §108(a)(1)(C) was not intended to establish, as an additional criterion for listing under §108, the Administrator's intention to issue air quality standards for a particular pollutant. As support for its conclusion, the court points to a number of judicial decisions, including the Supreme Court's ruling in Union Electric Co. v. EPA, 6 ELR 20570. For the lower court's decision, see 6 ELR 20366.

Counsel for Plaintiffs-Appellees
David Schoenbrod
Rogers Beers
Natural Resources Defense Council
15 West 44th St.
New York NY 10036
(212) 869-0150

Counsel for Defendants-Appellants
Robert B. Fisker Jr., U.S. Attorney
Michael H. Dolinger
Mary C. Daly Asst. U.S. Attorneys
U.S. Courthouse
Foley Square
New York NY 10007
(212) 264-6118

For himself, Oakes, and Meskill, JJ.