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Thomas v. New York

ELR Citation: 16 ELR 20925
Nos. Nos. 85-5970 et al., 802 F.2d 1443/24 ERC 1913/(D.C. Cir., 09/18/1986) Rev'd

The court holds that letters written by former Environmental Protection Agency (EPA) Administrator Costle in 1981, finding that American states contribute to acid rain in Canada, do not obligate his successors to require those states to abate air pollution emissions under §115 of the Clean Air Act. The court holds that the letter to then-Secretary of State Muskie falls within the Administrative Procedure Act's (APA's) definition of a rule, as it purports to bind subsequent EPA Administrators, and therefore requires compliance with the APA's notice-and-comment procedures. The court holds that Costle's findings that American states contributed to Canadian air pollution and that Canadian law provides reciprocal rights to the United States for control of such air pollution are not an interpretive rule, general statement of policy, or rule of agency organization, procedure, or practice and thus require notice-and-comment procedures. The court declines to rule on whether the findings in the letter would have been sufficient under §115 to support the suit had EPA complied with the APA's requirements, but observes that how EPA chooses to proceed to the stage of notification triggered by the findings is within the agency's discretion.

Counsel for Appellants
David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5580

Henry V. Nickel
Hunton & Williams
P.O. Box 19230, Washington DC 20036
(202) 955-1500

Counsel for Appellees
David R. Wooley, Ass't Attorney General
Environmental Protection Bureau
Two World Trade Ctr., Albany NY 10047
(518) 474-7330

Howard Fox
Sierra Club Legal Defense Fund, Inc.
1424 K St. NW, Suite 600, Washington DC 20005
(202) 347-1770