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Natural Resources Defense Council v. Train

Citation: 6 ELR 20366
No. No. 74 Civ. 4617, 411 F. Supp. 864/8 ERC 1695/(S.D.N.Y., 03/01/1976)

Plaintiffs sue to compel the Administrator of the Environmental Protection Agency to list lead as a "criteria air pollutant" under § 108(a)(1) of the Clean Air Act Amendments of 1970. Such listing would trigger issuance of air quality criteria and a national ambient air quality standard for lead under § 109, to be implemented, inter alia, in state implementation plans under § 110. Jurisdiction lies under § 304, which permits the court to decide whether a challenged function of the Administrator is mandatory or discretionary. Once the Administrator has determined that a pollutant has an adverse effect on public health or welfare, and that it comes from numerous or diverse mobile or stationary sources, his duty to list that pollutant under § 108 is mandatory. The statutory scheme and legislative history belie his claim that the existence of alternative regulatory pathways in the Act give him discretion not to list lead despite his having concededly made the requisite threshold findings as to its harmful effect and diverse sources. The Administrastor retains sufficient discretion in the making of those threshold determinations and later in establishing ambient air quality standards. Moreover, the Act's regulatory approaches are not mutually exclusive alternatives. Thus, the Administrator's 1973 decision to regulate lead under § 211 as an auto fuel additive does not preclude his listing it under § 108. Nor is his daty to list it excused by the possibility that there may not be sufficient data to support issuance of an ambient air quality standard for lead. Within 30 days, the Administrator is ordered to place lead on the list of pollutants under § 108.

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

Counsel for Defendants
John Siffert, Asst. U.S. Attorney
1 St. Andrew's Plaza
New York NY 10007
(212) 791-1050