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Environmental Defense Fund v. Thomas

Citation: 19 ELR 20660
No. No. 88-6142, 870 F.2d 892/29 ERC 1242/(2d Cir., 03/22/1989) Rev'd

The court rules that the Environmental Protection Agency (EPA) has a nondiscretionary duty under Clean Air Act § 109(d) to decide formally whether to revise the sulfur oxides secondary National Ambient Air Quality Standards (NAAQS) to account for the effects of acid rain. Clean Air Act § 304 grants jurisdiction to district courts to compel EPA to perform nondiscretionary duties, while Clean Air Act § 307 grants jurisdiction to the Court of Appeals for the District of Columbia to review the exercise of EPA's discretionary actions. The court holds that in light of EPA's revised sulfur oxides' criteria issued in 1982 and its 1984-85 "Critical Assessment" of sulfur oxides' effects on acid rain, EPA has a non-discretionary duty to make some decision. The district court thus has jurisdiction under § 304 to order EPA to complete the rulemaking it has now begun, and EPA's resulting decision is reviewable in the Court of Appeals for the District of Columbia. The court first holds that the Court of Appeals for the District of Columbia does not have exclusive jurisdiction to determine whether EPA must proceed with rulemaking. The District of Columbia Circuit has held that it has exclusive jurisdiction over failure to begin rulemaking when no statutory deadlines are involved, but Clean Air Act § 109(d) provides a deadline in this case. Similarly, the District of Columbia Circuit has held that it may review agency inaction when delay might irreversibly compromise the decision's integrity, but that is not the case here. The court next holds that § 109(d) requires EPA to make some decision on the sulfur oxides secondary NAAQS. The statutory language uses the mandatory "shall," and to allow EPA simply not to decide whether to revise the sulfur oxides secondary NAAQS would leave the matter in bureaucratic limbo subject neither to review in the District of Columbia Circuit nor to challenge in the district court. Although EPA interprets the Clean Air Act to allow it to do this, and a court must defer to agency statutory construction where congressional intent is not clear, here congressional intent is clear.

A dissent would dismiss the suit for lack of subject matter jurisdiction, requiring the plaintiffs to first petition EPA to undertake rulemaking.

[The district court decision in this case appears at 18 ELR 21394. Briefs in this case are summarized at ELR PEND. LIT. 65889, 65910, and 66022.]

Counsel for Plaintiffs-Appellants
David R. Wooley, Ass't Attorney General
Department of Law, State Capitol, Albany NY 12224
(518) 474-7330

James T.B. Tripp
Environmental Defense Fund
444 Park Ave. S., New York NY 10016
(212) 686-4191

David Hawkins
Natural Resources Defense Council
1350 New York Ave. NW, Ste. 300, Washington DC 20005
(202) 783-7800

Counsel for Defendants-Appellees
Jacques B. Gelin
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2762

Before Van Graafeiland and Mahoney, JJ.