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15 ELR 20748 | Environmental Law Reporter | copyright © 1985 | All rights reserved New York v. ThomasNo. 84-0853 (D.D.C. July 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 nondiscretionary 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 Counsel for Plaintiffs-Intervenors Counsel for Defendant Counsel for Defendants-Intervenors Johnson, J.: Before the Court are a motion for summary judgment filed by plaintiffs and motions for summary judgment and to dismiss filed by defendant and defendant-intervenor in this action to compel the Administrator of the Environmental Protection Agency (EPA) to perform certain duties under the Clean Air Act, 42 U.S.C. § 7401 (1977). Plaintiffs are six states, four environmental associations, and four individuals who seek to alleviate damage occurring in eastern Canada allegedly caused by the international movement of harmful pollutants originating in the midwestern United States. [15 ELR 20749] Defendant is the Administrator of the EPA and is sued in his capacity as such. The National Coal Association and several industrial power companies were granted leave to intervene in these proceedings and filed briefs in support of defendant's motion to dismiss and for summary judgment. Plaintiffs seek an order compelling the Administrator to require emitting states to revise their State Implementation Plans (SIP's), as mandated under section 115 of the Clean Air Act, 42 U.S.C. § 7415, in order to abate the damage allegedly traceable to the transboundary air pollution. This action has its origin in a letter written during the final days of the Carter Administration from Douglas M. Costle, then Administrator of the EPA, to former Secretary of State Edmund Muskie (Appendix A). This letter, dated January 13, 1981, concluded in part that "acid deposition is endangering public welfare in the U.S. and Canada and . . . U.S. and Canadian sources contribute to the problem not only in the country where they are located but also in the neighboring country." Costle stated in the letter that his conclusion was based on a report issue by the International Joint Commission.Additionally, in his letter, Costle analyzed legislative provisions similar to section 115 passed by the Canadian Legislature on December 17, 1980, and concluded that these provisions afforded the United States essentially the same rights as Canada was given under United States law. Costle reiterated and expanded upon his conclusions in a letter sent to Senator George Mitchell (Appendix B) on January 13, 1981, and issued his findings in a press release dated January 16, 1981. Plaintiffs contend that the determination made by Costle were sufficient to invoke section 115 of the Clean Air Act which, plaintiffs urge, sets in motion a process culminating in revision of SIP's by polluting states. No Administrator, however, has issued formal notification to the governor of any state from which such emissions originate, as would be required by the statute. Indeed, former Administrator Gorsuch and Ruckelshaus have stated their brief that Costle's actions were insufficient to invoke section 115. Whether section 115 applies in this case — and, if so, its effect — is at controversy in the present action. Section 115 provides in pertinent part: (a) Whenever the Administrator, upon receipt of reports, surveys or studies from any duly constituted international agency has reason to believe that any air pollutant or pollutants emitted in the United States cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country or whenever the Secretary of State requests him to do so with respect to such pollution which the Secretary of State alleges is of such a nature, the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate. (b) The notice of the Administrator shall be deemed to be a finding under section 7410(a)(2)(H)(ii) of this title which requires a plan revision with respect to so much of the applicable implementation plan as is inadequate to prevent or eliminate the endangerment referred to in subsection (a) of this section. Any foreign country so affected by such emission of pollutant or pollutants shall be invited to appear at any public hearing associated with any revision of the appropriate portion of the applicable implementation plan. (c) This section shall apply only to a foreign country which the Administrator determines has given the United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section. A. Statutory Basis for Jurisdiction The Clean Air Act contains a citizen suit provision to permit enforcement of required actions under the Act by private citizens. This section states: Except as provided in subsection (b), any person may commence a civil action on his own behalf . . . against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator . . . . (b) Notice. No action may be commenced . . . prior to 60 days after the plaintiff has given notice of such action to the Administrator . . . . Plaintiffs allege that under section 115 the Administrator is charged with performed a mandatory duty and due notice having been served upon him, they thus invoke jurisdiction under the citizen suit section. Whether the duties of the Administrator under section 115 are mandatory or discretionary is discussed more fully in Part III of this opinion, see infra pp. 27-30; however, as the Court concludes that the duties and mandatory, jurisdiction of this action properly lies in the district court under 42 U.S.C. § 7604. See Kennecott Copper Corporation, Nevada Mines Division, McGill, Nevada v. Costle, 572 F.2d 1349 [8 ELR 20373] (9th Cir. 1978). Intervenors argue further that, notwithstanding the provisions of 42 U.S.C. § 7604, jurisdiction of this action is exclusively vested in the United States Court of Appeals for the District of Columbia Circuit based on that court's recent decision in Telecommunications Research and Action Center v. Federal Communications Commission, 750 F.2d 70 (D.C. Cir. 1984) (TRAC). Specifically, intervenors argue that under TRAC any action or inaction by the Administrator with respect to the Costle letters is reviewable only in the Court of Appeals for this Circuit pursuant to section 307 of the Clean Air Act. Section 307 provides for direct review by the court of appeals of "final action taken" in specific and enumerated instances. See 42 U.S.C. § 7607(b)(1). However, as the subject of the instant complaint is not "final action" and is not included among the specific statutory bases for appellate court jurisdiction, section 307 cannot apply. Intervenors' reliance on TRAC is misplaced. Plaintiff in TRAC claimed that the FCC unreasonably delayed making a determination that AT&T was required to reimburse ratepayers for allegedly unlawful overcharges. Under the applicable statute, exclusive jurisdiction was conferred upon the court of appeals to determine the validity of "all final orders of the Federal Communications Commission." 47 U.S.C. § 462(a) (1982). The court of appeals held that its jurisdiction was exclusive over nonfinal matters as well by virtue of the exclusive jurisdiction provision coupled with the All Writs Act, 28 U.S.C. § 1651(a) (1982). The All Writs Act empowers federal courts to issue writs necessary to aid their respective jurisdictions. The court held that its authority would "extend] [ to support an ultimate power of review, even though it is not immediately and directly involved." 750 F.2d at 76. The present case differs markedly from TRAC. Rather than vesting ultimate review in the court of appeals, the Clean Air Act specifically defines the role the district courts are to play in its enforcement. Plaintiffs do not seek review of final agency action which would be cognizable under section 307. They seek review of an alleged failure to take action alleged to be mandatory. Although Costle's acts fall short of final action — as was the case in TRAC — there is no need — and, indeed, no authority — for the court of appeals to protect its prospective jurisdiction. The review of the failure to perform a nondiscretionary act is vested in the district court under section 304. The EPA, which argues contrarily to intervenors with respect to this issue, urges in its surreply that intervenors "can only read TRAC into this case by reading section 304 out of the Clean Air Act." EPA Surreply at 2. As this claim is properly before the Court under section 304, the Court now proceeds to determine whether a justiciable controversy has been presented. C. Subject Matter Jurisdiction Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction. The Court has reviewed the alternative bases for dismissal and concludes that plaintiffs have alleged material facts sufficient to sustain their claim that the court possesses subject matter jurisdiction. Article III of the United States Constitution defines and limits the jurisdiction of United States courts, stating in part that the judicial power shall extend only to cases and controversies. Hall [15 ELR 20750] v. Beals, 396 U.S. 45 (1969). This constitutional requirement has been interpreted by the United States Supreme Court to mean that a plaintiff seeking redress must allege: a. threatened or actual direct injury resulting from the putatively illegal action; and b. an injury that can be fairly traced to the challenged action that is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982) ("Valley Forge") [quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41 (1976)]. Warth v. Seldin, 422 U.S. 490, 498-99 (1975); Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973); Baker v. Carr, 369 U.S. 186, 204 (1962). These requirements assume constitutional stature because they tend to ensure "a concrete factual context conductive to a realistic appreciation of the consequences of judicial action." Valley Forge, 454 U.S. at 472. Thus, even where Congress creates a statutory right of action, as it has through section 304, a litigant suing under such a statute may vindicate his claim only if he meets the constitutional requirements articulated above, although a statutory right of action will excuse a litigant from meeting the federal common law "prudential" requirement of justiciability. Warth v. Seldin, 422 U.S. at 501. See also Valley Forge, 454 U.S. at 487-88 n.24. Section 304 of the Clean Air Act, as noted above, provides that "any person" may commence a civil action to compel the Administrator to undertake action under the Act which is not discretionary. Under section 302 of the Act, person is defined to include "an individual, corporation, partnership, association [or] State . . ." Thus, all of the plaintiffs who have joined in this action have statutorily cognizable claims. In addition, all plaintiffs except Representative Ottinger have presented facts sufficient to meet the constitutional requirements discussed above. The state plaintiffs in this action seek enforcement not only for their citizens but on their own behalf. Although states frequently sue under the doctrine of parens patriae, it is not uncommon for them also to maintain their own actions. The Supreme Court has countenanced this procedure by holding in a related context that states may rely on such statutes to establish standing to challenge federal executive action. Wisconsin v. Federal Power Commission, 373 U.S. 294 (1963) (state permitted to sue under the Natural Gas Act without meeting parens patriae criteria); Phillips Petroleum Company v. Wisconsin, 347 U.S. 672 (1954); Pennsylvania v. Kleppe, 533 F.2d 668 (D.C. Cir. 1976) cert. denied, 429 U.S. 977; see also Hancock v. Train, 426 U.S. 167, 196 [6 ELR 20555] (1976) (section 304 of the Clean Air Act "is the only means provided by the Act for the States to remedy noncompliance"). The citizen group plaintiffs sue on behalf of themselves and on behalf of their members "who reside in areas throughout the midwestern and northeastern states and eastern Canada and breathe air pollution and suffer the other types of acid rain damages which are the subject of this action." Complaint at 4. Defendants argue that plaintiff associations have failed to allege that the associations or their members had been adversely affected by the inaction of the Administrator, relying principally on Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972) and Warth v. Seldin, 422 U.S. 490. These cases, however, do not prove defendants' contention. In Sierra Club v. Morton, plaintiff sued to obtain judicial review of action by the United States Forest Service approving recreational development in the Sierra Nevada Mountains. The Supreme Court denied standing to the plaintiff because it "failed to allege that it or its members would be affected in any of their activities or pastimes . . . ." 405 U.S. at 735.In the present case, however, the plaintiffs have alleged not only that emissions from the polluting states have adversely affected eastern Canada, but also have alleged and supported with documentation that its members live, work, vacation, or own property in eastern Canada. Moreover, in Warth, the Supreme Court recognized that an association may assert the rights of its members, but denied standing to the associations because none of them have sufficiently alleged cognizable injury. In this case, plaintiff associations have alleged with particularity that many of its members have suffered or will suffer concrete harm as a result of the putatively illegal inaction. Unlike Warth, which involved a tenuous causal link between the alleged illegality and the alleged harm, the present case involves alleged inaction which, if curred, may lead directly to reduce emissions and thus reduced harm. Plaintiffs have quite clearly stated that "respirable particulates and deposition of acidic materials are causing substantial and irreversble damage to the health and welfare of the people of the plaintiff states, plaintiff organizations, and the individual plaintiff." Complaint at 1-2. The individual plaintiffs, with the exception of Representative Ottinger, also have alleged material facts sufficient to enable them to proceed as plaintiffs in this action. These plaintiffs own property in the Muskoka Lake area of Ontario and allege that their "air and water quality and personal property have been damaged by air pollution emitted from certain Midwestern States." Complaint at 5. Although defendants have countered that these plaintiffs have failed to specify any adverse effects that have impaired the use of their property, the Court is of the opinion that this is not required. Plaintiffs have alleged that their health and property have been placed in jeopardy by the pollutants. Further, the fact of their presence in a geographical region harmed by the Administrator's alleged inaction is sufficient to confer upon them a cognizable interest. See Sierra Club v. Morton, 405 U.S. at 734 ("[a]esthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process"). Representative Ottinger asserts a cognizable interest by virtue of his position as a Member of Congress. However, there are no special standards for determining congressional standing. As Representative Ottinger has not alleged any property interest or personal presence in the affected ares, and has not alleged other facts which entitle him to invoke the Court's jurisdiction, his complaint is merely a generalized grievance shared equally with all citizens. However, as the other plaintiffs have alleged claims sufficient to invoke the Court's jurisdiction, Ottinger may remain in the action. See Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160 [12 ELR 20237] (1981); Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 264 n.9 (1977). In addition to presenting properly cognizable claims in their representative or individual capacities, plaintiffs also have alleged cognizable direct injury sufficient to meet constitutional requirement of direct injury. As noted above, environmental harm is a legally redressable injury. Sierra Club v. Morton, 405 U.S. at 734. Further, although defendants object that plaintiffs have not presented specific evidence of identifiable harm that has befallen them, legally recognizable harm may be retrospective or prospective in nature. See United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973) ("SCRAP") See also Linda R.S. v. Richard D., 410 U.S. at 617 ("Although the law of standing has been greatly changed in the last 10 years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction") (emphasis added) (citations omitted). Since emissions from polluters in the midwestern United States may cause damage to air quality, water quality, and property in Canada, areas in which plaintiffs' citizens or members live, work, vacation or own property, plaintiffs have alleged threatened or actual injury sufficient to establish standing. See Friends of the Earth v. Potomac Electric Power Company, 419 F. Supp. 528, 530 [7 ELR 20090] (D.D.C. 1976) (association found to have standing to sue under the Clean Air Act to abate pollution in Washington, D.C. where 430 of its 28,000 members resided or worked in Washington and thus breathed and were harmed by pollution). 3. Traceability and Redressability Article III requires that the injury complained of be fairly traced to the challenged action and that the harm involved be likely to be redressed by judicial intervention. As plaintiffs correctly noted, traceability and redressability "are inseparable in the present case because the relief plaintiffs seek is an order compelling the EPA [15 ELR 20751] to end the very inaction which is the cause of plaintiffs' injuries." Plaintiffs' Memorandum of Points and Authorities at 41. These questions are problematic in the area of acid precipitation because of political and scientific dispute over the extent to which acid rain causes damage to aquatic ecosystems, terrestrial ecosystems, animal health, human health, or artifacts. See generally Carroll, Acid Rain: An Issue in Canadian-American Relations (Toronto and Washington: 1982). Defendants in this case contend that plaintiffs have failed to establish a causal link between EPA inaction and the aggravated harm in Canada. They argue that, even if EPA is required to act, "it would be difficult, if not impossible, to identify facilities causing international pollution over hundreds of kilometers." Memorandum In Opposition to Plaintiffs' Motion for Summary Judgment at 19. This argument, however, is little more than an assertion that EPA is unable or unwilling to do what Congress has mandated it must do. Indeed, at the heart of section 115 is the congressional determination that the revision of state implementation plans is an effective mechanism for abatement off international air pollution. See S. Rep. No. 127, 95th Cong. 1st Sess. 57 (1977). See also Animal Welfare Institute v. Kreps, 561 F.2d 1002, 1010 [7 ELR 20617] (D.C. Cir. 1977), cert. denied, 434 U.S. 1013 (1978) (by enacting remedial easures under the Marine Mammal Protection Act, Congress determined that a causal relationship existed between American import practices and South African sealing practices). As the language of section 115 clearly indicates that a reduction in emissions will abate the deleterious effects of midwestern pollution on public health and welfare in Canada, the Court concludes that the constitutional requirements of traceability and redressability have been satisfied. Moreover, the United States Court of Appeals for the District of Columbia Circuit has held that the "redressability requirement" is to be construed broadly in favor of plaintiffs: [B]ecause the relevant inquiry is directed to the effect of a future act (the court's grant of the requested relief) it would be unreasonable to require the plaintiff to prove that granting the requested relief is certain to alleviate his injury. Furthermore, as cases such as the present one show, litigation often "present[s] complex interrelationships between private and government activity that make difficult absolute proof that the harm will be removed." Thus, a court should be careful not to require too much from a plaintiff attempting to show redressability, lest it abdicate its responsibility of granting relief to those injured by illegal government action. Community Nutrition Institute v. Block, 698 F.2d 1239, 1248 (D.C. Cir. 1983) (citations omitted), rev'd on other grounds, 104 S. Ct. 2450, slip op. No. 83-458 (June 4, 1984). Accord: International Ladies' Garment Workers' Union v. Donovan, 722 F.2d 795, 811 n. 27 (D.C. Cir. 1983); cert. denied, 105 S. Ct. 93 (1984). Moreover, plaintiff need not show that the injury would be completely redressed, so long as "'the requested relief would benefit [them] in some perceptible, tangible fashion.'" Sierra Club v. Edwards, 19 Envir. Rep. (BNA) 1357, 1366 (D.D.C. 1983) (citing Public Citizen v. Lockheed Aircraft Corporation, 565 F.2d 708, 715 (D.C. Cir. 1977). Therefore, there is no basis to conclude that the injury is not likely to be redressed by a favorable decision. Having concluded that the plaintiffs have presented a justiciable controversy, the Court now turns its attention to the merits of the action. III. Analysis of the Section 115 Claim The task before the Court now is to determine if the requirements of section 115 have been satisfied and, if so, what action is required by the Administrator under the statute. A. Whether Section 115 Has Been Satisfied The initial requirement under section 115 is that the Adinistrator receive a report from a duly constituted international agency . . . ." 42 U.S.C. § 7415.Costle stated in his letter to Secretary Muskie that he examined in connection with his consideration of the United States-Canada acid rain issue the Seventh Annual Report on Grcat Lakes Water Quality, isued in October 1980 by the International Joint Commission. Costle averred that this report "confirms that acid deposition is endangering public welfare in the U.S. and Canada . . . ." It thus appears that his determination was made "upon receipt" of the IJC report. Therefore, the only question remaining is whether the IJC is a duly constituted international agency. Although the phrase "duly constituted international agency" is not defined in the Act or in the legislative history, the IJC would meet the expectations of the drafters of this section. The Commission, established by the Boundary Waters Treaty of 1909, United States-Canada, 36 Stat. 2448, T.S. No. 548 (effective May 13, 1910), is charged with the responsibility of resolving transboundary water and navigational disputes between the United States and Canada. It includes the approval of applications for the use, obstruction, or diversion of water which would affect the natural level or flow of water on the other side of the boundary and the investigation of disputes involving United States-Canada boundaries. See generally B. Caplan, The Applicability of Clean Air Act Section 115 To Canada's Transboundary Acid Precipitation Problem, 11 B.C. Envtl. Aff. L. Rev. 539, 580-82 (1984). Based on these characteristics of the Commission and the apparent agreement by the parties that the agency is duly constituted, the Court concludes that the Costle determination wad made "upon receipt of reports, surveys or studies from any duly constituted international agency . . . ." In order to trigger invocation of section 115, the Administrator must have "reason to believe that any air pollutant or pollutants emitted in the United States cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country . . . ." The IJC Report, upon which Administrator Costle in part based his decision, concludes that: transmission of toxic and hazardous substances to the Great Lakes via long range atmospheric transport and deposition is a serious problem which requires further research efforts and control measures . . . . All parts of the Great Lakes watershed are now receiving precipitation containing 5 to 40 times more acid than would occur in the absence of atmospheric emissions." Based on these findings, the Commission recommended "appropriate actions to substantially reduce atmosphere emissions of sulphur and nitrogen oxides from existing as well as new sources . . . ." The Clean Air Act does not specifically state what is necessary for the Administrator to have "reason to believe," but the IJC Report would have afforded Costle ample basis upon which to conclude that air pollutants in the United States contribute to acid precipitation occurring in Canada such that it could reasonably be anticipated that the public health and welfare of Canada would be endangered. Indeed, that is exactly what Costle believed, for he specifically stated that "the IJC Report confirms that acid deposition is endangering public welfare in the United States and Canada and that the United States and Canadian sources contribute to the problem not only in the country where they are located but also in the neighboring country." Defendants argue that Costle's findings are ambiguous and do not satisfy the requireents of section 115. They contend that Costle only made the finding that "the cumulative effects of Canadian and the United States emissions are creating a risk of public harm in Canada." EPA Motion to Dismiss at 29. This argument, however, cannot be reconciled with Costle's statements.In the letter to Senator Mitchell, Costle stated: The relative contribution of U.S. and Canadian emission sources to acid deposition problems in the U.S. and Canada varies widely from location to location . . . . Surveys conducted over the past several years establish that there is a significant flow of these pollutants across the U.S.-Canadian border in both directions. Thus, we can say with some certainty that emission sources in the U.S. contribute significantly to the atmospheric loadings over some sensitive areas in Canada and that emission sources in Canada contribute significantly to the loadings over some sensitive areas in the United States. Plaintiffs' Exhibit 1-E at 2-3. It was based on this information that Costle had reason to believe that "U.S. and Canadian sources contribute to the problem not only in the country where they are located [15 ELR 20752] but also in the neighboring country." Therefore, this requirement of the statute is satisfied. In addition, section 115 requires that its provisions be invoked only where the Administrator has determined that the foreign country involved afford to the United States essentially the same rights that the United States grants it with respect to international air pollution. Under section 21.1 of the Canadian legislation, if the Minister of Environment has reason to believe that Canadian contaminants contribute to air pollution which may reasonably be expected to constitute a significant danger to the health, safety, or welfare of persons in another country, the Minister shall recommend to the Governor in Council specific emission standards appropriate to reduce the damage. Additionally, the statute requires the Minister of Environment to consult with the province where the source of the international air pollution is located provides that a particular province can act to remedy air pollution affecting a foreign country much in the same way that a state might revise its SIP's under section 115(b). Costle discussed the Canadian law provisions and their effect on the issue of reciprocity in the letters he wrote to Secretary Muskie and Senator Mitchell. Costle concludes that "the amendments to the Canadian Clean Air Act do give adequate authority to the Government of Canada to provide essentially the same rights to the United States as Section 115 provides to Canada." However, Costle qualifies this conclusion by characterizing the reciprocity determination as a fluid and dynamic situation that is subject to change. He states that his determination "could be changed should the U.S. conclude that future Canadian actions interpreting or implementing their legislation were not giving essentially the same rights to the U.S." In addition, Costle emphasizes that at the time of any final action, "the Administrator must continue to be able to find that Canada is giving the United States essentially the same rights . . . ." Defendants urge that Costle merely opines on whether the Canadian legislation provides reciprocal rights to the United States. Defendants cite to Costle's language that his determination is not "permanently binding . . . ." However, this merely underscores the reality that a finding under the statute must be based on an analysis of facts and law as they exist at a particular time and that a change of either facts or law might require reexamination of the determination. Moreover, should defendants wish to challenge Costle's findings, the appropriate time and forum would be after a final action has been taken by the Administrator in an action commenced in the court of appeals. 42 U.S.C. § 7607. Based on its review of Costle's letters, the Court concludes that Costle did in January 1981 satisfy the section 115 requirement that "the Administrator determine[ ] [that Canada give]s[] the United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section." However, the Court is concerned by Costle's own qualifications of his conclusion, aggravated in this case by the lengthy passage of time since the determination was made. Therefore, the Court will afford the current EPA Administrator an opportunity to review the issue of reciprocity to determine whether Costle's conclusion remains viable. B. The Effect of a Finding That Section 115 Has Been Invoked Under section 115, once the formal requirements of the statute have been met, "the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate." 42 U.S.C. § 7515(a). This notice "shall be deemed to be a finding . . . which requires a plan revision with respect to so much of the applicable implementation plan as is inadequate to prevent or eliminate the endangerment referred to in subsection (a)." 42 U.S.C. § 7415(b).1 Defendants attack the legal significance of Costle's findings on three bases. First, they argue that Costle's findings did not constitute official decision-making. Second, they contend that Costle's actions were revoked by the actions of his successor, Administrator Gorsuch. Third, defendants urge that the decision to act under section 115, even once the necessary findings have been made, is discretionary. With respect to whether Costle made official determinations, defendants note that Costle's determination was made by letter and argue that letters cannot constitute formal administrative decision-making. Defendants suggest that another method, for example, publishing the letters in the Federal Register, would have given the determinations the characteristics of official action. Plaintiffs reply that the letters have all the attributes of official agency action because they were written to the Secretary of State, who is charged with administering foreign relations and because they were publicized as agency action in a press release. Plaintiffs cite other examples of official EPA action which was taken by communicating through correspondence. The Court concludes that the fact that Costle memorialized his findings in a letter does not defeat their classification as official agency action. It appears that publication in the Federal Register would be inappropriate for this kind of action because it is not a rule or policy statement.5 U.S.C. § 552(a)(1) and 553(b). Additionally, notification to the Governors would presumably be achieved by letter. That the Administrator chose this medium to make his findings should not frustrate the Administrator's intent to secure compliance by the states.2 Defendants also argue that whatever determinations Costle made were revoked by Administrator Gorsuch in a letter she sent to the Governor of Ohio on September 22, 1981. In this letter, Gorsuch assured Governor Rhodes that Costle's letter did not satisfy section 115 and that the letter was void of legal significance. See Defendants' Exhibit 1. Plaintiffs counter that while Gorsuch made a legal conclusion of the effect of the letter, she did not review the factual bases for the determination nor suggest that these determinations were erroneous. This kind of factual review appears to have been necessary under the ordinary procedure that an Administrator employs to avoid being bound by the decision of a predecessor. See EPA Exhibit 6 ("a new Administrator could "reconsider" or "make different findings"). Gorsuch made no such factual findings. She did not address the relevant facts which would have been considered in revoking the prior administrative findings. She did not refer to any change of circumstances which would call into question the adequacy of Canadian law to provide rights to the United States. She did not address any changes in scientific evidence demonstrating the cessation to adverse impacts in Canada from U.S. emissions. Therefore, it cannot be concluded that the Gorsuch letter revoked the Costle determination that section 115 was applicable. See Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company, 103 S. Ct. 2856, 2866 [13 ELR 20672] (1983) ("Revocation constitutes a reversal of the agency's former views as to the proper course. A 'settle course of behavior embodies the agency's informed judgment that, by pursuing that course, it will carry out the policies committed to it by Congress. There is, then, at least a presumption that those policies will be carried out best if the settled rule is adhered to.' Accordingly, an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may [15 ELR 20753] be required when an agency does not act in the first instance") (citations omitted). Third, defendants urge that the decision to act under section 115 is discretionary. The Court notes that this is really a jurisdictional argument because section 304 jurisdiction exists in the district court only to challenge mandatory duties that the Administrator has failed to perform. Nevertheless, defendants urge that, even if Costle made the requisite findings under the statute, the decision whether to notify the Governors or to take any additional steps under section 115 is discretionary. Defendants' argument finds no support either in the statute and its legislative history or in the relevant case law. The plan language of section 115 is clear: whenever the Administrator makes the findings set forth in the statute, "the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate" (emphasis added). As reiterated by the United States Court of Appeals for the District of Columbia Circuit, when the Clean Air Act uses "shall," the normal inference is that the act is mandatory. Oljato Chapter of the Navajo Tribe v. Train, 515 F.2d 654, 664 [5 ELR 20481] (D.C. Cir. 1975). See also Anderson v. Yungkau, 329 U.S. 482, 485 (1947). In addition, the Report of the Committee on Public Works of the United States Senate concluded that "[s]ection 115, as revised, therefore, provides that the determination that emissions of air pollutants in the United States are endangering the health or welfare of citizens of a foreign country will require the State in which the source of those emissions is located to revise its implementation plan to control those emissions." Senate Comm. on Public Works, Clean AirAmendments of 1976, S. Rep. No. 717, 94th Cong., 2d Sess. (1976). Defendants argue that a section 115 decision must be discretionary because it "requires the fusion of technical knowledge and skills with judgment which is the hallmark of duties which are discretionary." Intervenors' Memorandum of Points and Authorities at 17 (quoting Kennecott Copper Corporation, Nevada Mines Division, McGill, Nevada v. Costle, 572 F.2d 1349 [8 ELR 20373] (9th Cir. 1978) ("Kennecott")). However, the cases upon which defendants rely and other relevant cases suggest that discretion exists in the Administrator to determine only the manner in which the duty is to be executed, not whether it is to be executed. In Kennecott, for example, the court held that it did not have jurisdiction under section 304 of the Clean Air Act because the plaintiff sought review of a discretionary action. Specifically, plaintiff sought a declaratory judgment that it had satisfied the Act by making certain improvements. Plaintiff relied on section 110(a)(3) of the Act, which states that the Administrator "shall approve" any revision meeting the statutory requirements, to contend the Administrator was under a mandatory duty to approve a variance. However, the Court held that determining whether a SIP met the requirements was discretionary, thus it had no jurisdiction. The Court pointed out that once the Administrator had made the determination that the statutory requirements had been met, "there is a nondiscretionary duty to act in accordance with his determination." 572 F.2d at 1355. This holding is applicable to the present case. The Administrator exercised discretion in determining whether the statutory requirements had been met, but once he made the determination that the requirements had been satisfied, he was under a mandatory duty to act in accordance with the statute by giving formal notification to the Governors. The relevant case law uniformly upholds the determination that sections employing the word "shall" in the Clean Air Act signify mandatory duties. See Train v. Natural Resources Defense Council, 421 U.S. 60, 79 [5 ELR 20264] (1975) (once statutory criteria are met, agency action is required); Natural Resources Defense Council v. Train, 545 F.2d 320, 328 [7 ELR 20007] (2d Cir. 1976) (to hold other than that the use of "shall" in the statute is to render this mandatory language mere surplusage); Olijato Chapter of Navijo Tribe v. Train, 515 F.2d 654, 662 [5 ELR 20481] (D.C. Cir. 1975) (it would be an abuse of discretion for the Administrator to fail to revise a standard of performance when the evidence supporting revision is compelling); Citizens for a Better Environment v. Costle, 515 F. Supp. 264 [11 ELR 20963] (N.D. Ill. 1981), cert. denied, 459 U.S. 1035 (1982); Dow Chemical Company v. Costle, 480 F. Supp. 315, 317 (E.D. Mich, 1978), aff'd, 659 F.2d 724 (6th Cir. 1981). Therefore, the Court concludes that the duty of the Administrator to act according to the statute is nondiscretionary under section 115. The Court concludes from the record before it that defendants' motions to dismiss and for summary judgment must be denied and that plaintiffs' motion for summary judgment should be granted. Having concluded that Administrator Costle properly invoked section 115 of the Clean Air Act, it now is incumbent upon the current EPA Administrator to "give formal notification" to the Governors of the states in which harmful emissions originate and to set in motion the necessary processes to require a plan revision so as to prevent or eliminate the endangerment encompassed by the Costle determinations. An appropriate Order accompanies this Memorandum. Upon consideration of the cross-motions for summary judgment, the motion to dismiss, the supporting and opposing memoranda, and the entire record herein, and consistent with the Memorandum Opinion of even date, it is this 26th day of July, 1985, ORDERED that the motion of intervenors to dismiss be, and hereby is, denied; it is further ORDERED that the motion of defendants for summary judgment be, and hereby is, denied; it is further ORDERED that the motion of plaintiffs for summary judgment be, and hereby is, granted and that summary judgment be, and hereby is, entered in favor of plaintiffs; and it is further ORDERED that defendant Administrator, if he deems appropriate, determine, within ninety (90) days of the date of this Order, whether the finding of reciprocity by former Administrator Costle remains viable; and it is further ORDERED that, if there is a finding of reciprocity, defendant Administrator shall on or before one hundred eighty (180) days thereafter, comply with his mandate under section 115 by formally notifying the governors of any state in which such emissions originate. 1. The Court notes that the states to which notification is due were not identified by Costle. Costle instructed his staff to determine which states were to be targeted, but no final action was taken. The Court is convinced that the obligation to identify the polluting states is incidental to giving formal notification and not a pre-requisite to the conclusion that Costle made the requisite findings under section 115. The construction of section 115 and Costle's description of the statute in his letter to Secretary Muskie illustrate that section 115 is triggered once the Administrator receives qualified reports that give him reason to believe United States sources are polluting Canada and the Administrator makes the requisite finding of reciprocity. 2. Correspondence is frequently used by EPA to take formal action under the Clean Air Act. For example, notification to owners of major pollution sources that are subject to particular emission control requirements is frequently accomplished by correspondence. See Harrison v. PPG Industries, 446 U.S. 578, 582 [10 ELR 20353] (1980); Hawaii Electric Company v. EPA, 723 F.2d 1440, 1442 [14 ELR 20328] (9th Cir. 1984). Determinations that a source is not in compliance with emission control requirements under 42 U.S.C. § 7413 of the Act is accomplished by correspondence. Wisconsin's Environmental Decade, Inc. v. Wisconsin Power and Light Co., 395 F. Supp. 313 (W.D. Wis. 1975). Waivers by the Administrator of "new source performance standards" under 42 U.S.C. § 7411(j) have been denied to operators of emission sources by way of correspondence. Central Illinois Public Service Co. v. U.S. EPA, 594 F.2d 636, 637 [9 ELR 20226] (7th Cir. 1979). 15 ELR 20748 | Environmental Law Reporter | copyright © 1985 | All rights reserved |