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Natural Resources Defense Council v. Thomas

ELR Citation: 18 ELR 21461
Nos. No. 86 Civ. 0603(CSH), 689 F. Supp. 246/(S.D.N.Y., 06/22/1988)

The court holds it lacks jurisdiction in a citizen suit under §304 of the Clean Air Act (CAA) challenging the Environmental Protection Agency's (EPA's) failure to list eight substances as hazardous air pollutants under CAA §112. The court notes that EPA has a non-discretionary duty under §112(b)(1)(A) to list a substance that it finds to be a hazardous air pollutant, but EPA has discretion under §112(a)(1) to make a threshold determination of which substances are hazardous pollutants. EPA has preliminary concluded that these substances are either probable or known carcinogens, but asserts that it has not made a final decision that the subtances are hazardous under §112. The court holds that it lacks jurisdiction to review EPA's threshold determination, since such review would be an invasion of the D.C. Circuit's exclusive jurisdiction to review EPA's discretionary decisions. The court notes that it would have jurisdiction to compel listing under §112 if EPA's assertions that it has not yet found the pollutants hazardous were based on a patently unreasonable interpretation of the Act or if EPA's claims of tentativeness in its scientific findings are clearly contradicted by the record. The court holds that EPA's interpretation that §112 requires it to list pollutants which may result in a significant increase in mortality or serious illness is not patently unreasonable. The court holds that no jurisdiction exists under the Mandamus Act. The Mandamus Act does not confer an independent basis of jurisdiction and a writ of mandamus cannot compel discretionary duties such as identifying hazardous air pollutants. The court holds that neither federal question jurisdiction nor jurisdiction arising under statutes regulating commerce exist where Congress has provided for exclusive review in the appellate courts.

Counsel for Plaintiff
David D. Doniger, Eric Goldstein
Natural Resources Defense Council, Inc.
1350 New York Ave. NW, Ste. 300, Washington DC 20005
(202) 783-7800

Counsel for Defendant
Michael W. Steinberg, John A. Amodeo, Stephen Samuels, Charles S. Carter
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20024
(202) 475-8040

Counsel for Intervenors
David R. Marshall
Hunton & Williams
100 Park Ave., New York NY 10017
(212) 309-1000