ELR Citation: ELR 20748
No(s). 84-0853 (D.D.C. Jul 26, 1985)

Findings of a former Administrator of the Environmental Protection Agency (EPA) concerning transboundary air pollution affecting Canada, the court holds, give the current Administrator a non-discretionary duty under §115 of the Clean Air Act to order curtailment of the pollution if he finds that Canadian law still gives the United States reciprocal rights. In late 1980 and early 1981, then-EPA Administrator Costole sent letters to the Secretary of State and a senator stating that a recent report of an international agency confirmed that air pollution emissions from the United States contributed to harm to public health and welfare in Canada, and that, since Canadian law offered the United States reciprocal rights, §115 required abatement action in this country. The court rules that it has jurisdiction under §304 of the Act because the duty allegedly violated is mandatory. Intervenors' argument that the grant of jurisdiction to the court of appeals under Clean Air Act §307, combined with the power vested in that court in the All Writs Act, deprives the district court of jurisdiction is fallacious because it ignores the express provisions of §304.

The court holds that plaintiffs have standing to bring the action. It rules that the injuries alleged by state, citizen group, and individual plaintiffs are cognizable, save that of the plaintiff suing as a member of Congress. The former have recognized interests in implementation of the Act, or by virtue of the residence or use of their citizens or members of areas in Canada allegedly harmed by the transboundary pollution, in the abatement of the pollution at issue. The representative, on the other hand, has only generalized interests in the dispute. The court allows him to remain in the action, since his co-plaintiffs have standing. The court also rules that plaintiffs' alleged injuries to health and environmental interests are sufficiently direct to confer Article III standing. Next, it rules that the injuries are traceable to the alleged statutory violation and redressable by the court. Although there is scientific dispute about the precise causes and consequences of acid rain, the principal alleged environmental harm, §115 obviates the need to prove a precise relationship between the relief requested and the harm; Congress determined that evidence of harm was sufficient to dictate reduction of emissions. Moreover, the redressability requirement is to be interpreted broadly in favor of plaintiffs.

The court next holds that the action-triggering requirements of §115 have been partially fulfilled. Administrator Costle's action was in response to a report from a duly constituted international agency. The letters cited a report from the International Joint Commission (IJC), which is such an agency. The IJC report included information upon which the Administrator could reasonably have based his belief that United States emissions contribute to health and welfare effects in Canada. The letters also stated that Canadian law provided reciprocal rights to this country, but, the court rules, these conclusions were so qualified as to merit giving the current Administrator an opportunity to reconsider them.

The court holds that, if the reciprocity conclusion still is valid, the Costle letters trigger a mandatory duty under §115. That the decision was stated in letters does not detract from its validity; many EPA decisions are rendered in this form. The attempt of Costle's successor, Administrator Gorsuch, to revoke the conclusions of the letters has no legal consequence, the court rules, because she failed to make any factual findings undoing those upon which the Costle letters were based. The court also rejects defendants' argument that the decision to require controls is discretionary, concluding that the statute allows discretion in finding that an international air pollution effects exist, but not in responding to such a finding. The court grants plaintiffs' motion for summary judgment and orders EPA, should it find that reciprocity still exists, to notify the governors of states from which the offending pollution emanates that they must revise their state implementation plans to abate the pollution.

[An earlier opinion in this case appears at 14 ELR 20873.]

Counsel for Plaintiffs
David P. Wooley, Ass't Attorney General
Department of Law, Capitol, Albany NY 12224
(518) 474-4819

Counsel for Plaintiffs-Intervenors
Thomas Y. Au
Department of Environmental Resources
Executive House, Room 505, P.O. Box 2357, Harrisburg PA 17120
(717) 787-7060

Counsel for Defendant
Catherine A. Cotter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4438

Counsel for Defendants-Intervenors
Henry V. Nickel
Hunton & Williams
P.O. Box 19230, Washington DC 20036
(202) 955-1561