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Environmental Defense Fund v. Thomas

ELR Citation: 18 ELR 21394
Nos. No. 85 Civ. 9507, 27 ERC 2008/(S.D.N.Y., 04/19/1988)

The court holds that the Environmental Protection Agency (EPA) is not required under the Clean Air Act to revise the national ambient air quality standards for sulfur oxides. The court first rules that Clean Air Act §109(d) does not impose a nondiscretionary duty on EPA to issue revised standards. Section 109(d) requires EPA to periodically review air quality standards, but leaves the revision of the standards to EPA's discretion. This interpretation is consistent with the statutory language, which provides that EPA shall make revisions "as may be appropriate," and with the legislative history. EPA has not made a finding thattt the existing standards are inadequate and, even if it had, it is not clear that it can specify a standard to protect the public health or welfare in light of the scientific uncertainty concerning sulfur oxide pollution. The court holds that EPA was not required by §109(a)(2) to simultaneously issue new sulfur oxide standards when it issued revised air quality criteria. The simultaneous publication requirement applies only to criteria initially issued after §109(a)(2) was enacted in 1970, not to subsequent revisions. The court holds that it also lacks jurisdiction under the federal question statute, the Mandamus Act, and the Declaratory Judgment Act.

Counsel for Plaintiffs
Donald W. Stever Jr.
Sidley & Austin
520 Madison Ave., New York NY 10022
(212) 418-2100

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

Counsel for Defendants
Michael E. McCord
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2219

Earl Salo
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20024
(202) 475-8040