Environmental Defense Fund, Inc. v. Thomas

No. 85 Civ. 9507 (S.D.N.Y. April 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

[18 ELR 21394]

Edelstein, J.:

Opinion

Plaintiffs brought suit pursuant to 42 U.S.C. Section 7604 seeking to compel the Administrator of the Environmental Protection Agency ("EPA") to review and revise the existing air pollution standards for sulfur oxides. Plaintiffs subsequently moved for summary judgment. Defendants, in turn, moved for dismissal of the complaint or in the alternative, for an order granting summary judgment. Finding that it lacks subject matter jurisdiction over the instant action, the court grants defendants' motion to dismiss.

Background

Statutory Scheme

The Clean Air Act, 42 U.S.C. § 7401 et seq., establishes a system by which the federal government and the individual states cooperate in an effort to control air pollution. Central to this goal is 42 U.S.C. § 7408(a)(1)'s directive that the Administrator of the EPA ("Administrator") identify those pollutants "emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare [and] the presence of which in the ambient air results from numerous or diverse mobile or stationary sources." Id.

Once a pollutant has been so identified, the Administrator is obliged to issue "air quality criteria" which describe the latest scientific knowledge relevant to the determination of the effects of the pollutant in the ambient air on the public health or welfare. 42 U.S.C. § 7408(a)(2). Under the Clean Air Act, the term criteria is not used in its usual sense of constituting standards or guidelines. Rather,the criteria document produced pursuant to section 7408(a)(2) supplies the scientific basis for the production of "national ambient air quality standards" setting limits on the permissible concentration of the relevant pollutants in the air. 42 U.S.C. § 7409(a). Under Section 7409(b)(1) the Administrator must promulgate primary standards limiting pollutant concentrations to levels "which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health." 42 U.S.C. § 7409(b)(1). The Administrator must also promulgate the secondary standards specifying a "level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare." 42 U.S.C. § 7409(b)(2).

After the ambient standards are established, responsibility under the Clean Air Act shifts to the individual states. Each state must submit to the EPA a state implementation plan by which the standards might be realized. 42 U.S.C. § 7410(a), see also Lead Industries Association v. EPA, 647 F.2d 1130, 1136-37 [10 ELR 20643] (D.C. Cir. 1980), cert. denied, 449 U.S. 1042 (1980) (overview of promulgation process).

Standards, once established, are not immutable. Under Section 7408(c), the Administrator is under an obligation to "from time to time review, and, as appropriate, modify, and reissue any criteria or information on control techniques issued pursuant to this section." Id. Further, in 1977, Congress imposed time limits on the process of review and possible revision of standards by adding Section 7409(d)(1) to the Clean Air Act. Section 7409(d)(1) requires that by December 31, 1980, and every five years thereafter, the Administrator shall thoroughly review and, as appropriate, revise air quality criteria and standards.

Sulfur Oxides

In 1971, the Administrator promulgated primary and secondary pollutant standards for sulfur oxides. See 36 Fed. Reg. 8186 (1971). The secondary standards were subsequently directly challenged in the Circuit Court for the District of Columbia in 1972, and were remanded to the Administrator for further explanation of their basis. See Kennecott Copper Corp. v. EPA, 462 F.2d 846 [2 ELR 20116] (D.C. Cir. 1972). As a result of reconsideration following remand, the secondary standards were modified in 1973. 38 Fed. Reg. 25678 (1973).

Although the primary standards have not been altered since 1971, and the secondary standards have not been altered since 1973, review of the criteria and standards for sulfur oxide has occurred more recently. In 1984, the EPA issued a revised criteria document for sulfur oxides and completed a review of the sulfur oxide standards. That review did not result in any revision of the sulfur oxide standards. In 1986, the Administrator once again reconsidered the existing standards and opted against making any revisions at that time. See Plaintiff's Exhibit J at 11-12. Since that decision, the EPA has continued to accumulate data on sulfur oxide pollution.

Faced with the Administrator's decision not to revise the sulfur oxide standards, the Environmental Defense Fund, the Natural Resources Defense Council, the Sierra Club, and the National Parks and Conservation Association informed the EPA of their intention to bring suit if revisions did not issue. The Administrator did not revise the standards and the instant action was filed. Pursuant to Fed. R. Civ. P. 24(b)(2), the court permitted intervenors to join in the action. The plaintiffs subsequently moved for summary judgment. The defendants, in turn, moved to dismiss the complaint or, in the alternative, for an order granting summary judgment.

[18 ELR 21395]

Jurisdiction

As a threshold inquiry, this court must determine whether it has jurisdiction over the instant action. This case is a citizen suit filed pursuant to 42 U.S.C. § 7604.¹ (Section 304 of the Clean Air Act). Section 7604 provides that any person may commence a civil action in his own behalf to compel the Administrator of the EPA to perform non-discretionary duties. Id. at (a)(2). Such civil actions are appropriately brought in the federal district courts. Challenges to the discretionary acts of the Administrator, on the other hand, are beyond the scope of Section 7604 and must be brought pursuant to 42 U.S.C. § 7607 (section 307 of the Clean Air Act).² Jurisdiction over suits brought pursuant to Section 7607 is expressly limited to the United States Circuit Court for the District of Columbia. Thus, in determining whether this court has jurisdiction to hear this dispute, it is necessary to examine the nature of the Administrator's duties.

Plaintiffs argue that the Administrator has failed to perform certain nondiscretionary duties imposed upon him by 42 U.S.C. § 7409(d) (Section 109(d) of the Clean Air Act). Section 7409(d) Provides that:

[n]ot later than December 31, 1980, and at five-year intervals thereafter, the Administrator shall complete a thorough review of the criteria published under section 108 [42 U.S.C. § 7408] and the national ambient air quality standards promulgated under this section and shall make such revisions in such criteria and standards and promulgate such new standards as may be appropriate in accordance with section 108 [42 U.S.C. § 7408] and subsection (b) of this section. The Administrator may review and revise criteria or promulgate new standards earlier or more frequently than required under this paragraph.

Plaintiffs in their motion for summary judgment, contend that the Administrator failed to perform 1) the non-discretionary duty to revise the primary standards for sulfur oxides prior to December 31, 1985; 2) the non-discretionary duty to revise the secondary standards for sulfur oxides prior to December 31, 1985; and 3) the non-discretionary duty to revise the ambient standards for sulfur oxides simultaneously with the issuance of air quality criteria.³ Accordingly, plaintiffs request that the Administrator be ordered to propose revisions to the standards within thirty days and promulgate a final rule ninety days thereafter. Defendants, in response, claim that the duties described by the plaintiffs are in fact discretionary and thus beyond the scope of a section 7604 citizen suit. Accordingly, defendants move to dismiss the complaint for lack of subject matter jurisdiction or, in the alternative, move for an order granting summary judgment.

Discretionary Duty

In establishing the citizen suit provision of the Clean Air Act, Congress was clearly concerned with the possibility that abuse of that provision could lead to disruption of the administrative process. Accordingly, Congress limited section 7604's applicability to actions compelling the Administrator to perform "specific non-discretionary clean-cut requirements." Mountain States Legal Foundation v. Costle, 630 F.2d 754, 766 [10 ELR 20769] (10th Cir. 1980), cert. denied, 450 U.S. 1050 (1981). Thus, in accordance with Congress' intent to limit disruption of the Administrative process, this court begins its analysis with the proposition that a court, absent clear statutory language to the contrary, should be reluctant to deem duties non-discretionary. See Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1353 [8 ELR 20373] (9th Cir. 1978).

Plaintiffs contend that the duties in question are clearly of a nondiscretionary nature. In support of their position, plaintiffs argue that the text of Section 7409(d) when read in conjunction with certain factual findings made by the EPA demonstrates that the duties are mandatory. Further, plaintiffs contend that 42 U.S.C. § 7409(a)(2), when read in conjunction with Section 7409(d), required the Administrator to issue revised standards for sulfur oxides when he issued revised sulfur oxide criteria. The defendants, in turn, contend that the statutes in question impose only the requirement that the Administrator exercise his discretion. Each of these areas of contention shall be addressed in turn.

1. Section 7409(d)

Plaintiffs note that section 7409(d) states that the Administrator "shall" complete a review of air quality standards not later than December 31, 1980, and at five year intervals thereafter and "shall" make such revisions as may be appropriate. 42 U.S.C. § 7409(d). Plaintiffs also note that Section 7409(d) provides that the "Administrator may review and revise criteria or promulgate new standards earlier or more frequently than required under this paragraph." Id. (emphasis added).

The term "required" demonstrates that the section 7409(d) does impose some mandatory duty on the Administrator. Specifically, the term "shall" clearly imposes a duty on the Administrator to periodically review air quality standards. Plaintiffs, however, do not contend that the Administrator has failed to perform his obligation to review the air quality standards relevant to sulfur oxides. See supra note 3. Rather, plaintiffs contend that the Administrator's review demonstrates that the existing standards are inadequate and accordingly those standards must be revised.

The text of Section 7409(d), per se, cannot be read to supply the basis for an order requiring the Administrator to now revise the standards for sulfur oxides. Although section 7409(d) does mandate the review of the relevant standards, revision of those standards [18 ELR 21396] is apparently left to the discretion of the Administrator. The language of the statute provides that the Administrator shall make such revisions "as may be appropriate." The term "may" is properly understood to be permissive. Anderson v. Yungkau, 329 U.S. 482, 485 (1947). The determination of what is "appropriate" clearly calls for the exercise of discretion and expert judgment. Cf. American Iron & Steel Institute v. Costle, 12 Env't Rep. Cases 1008, 1009 (W.D. Pa. 1978) (interpreting term "as appropriate" appearing in 42 U.S.C. § 7408(c), Section 108(c) of the Clean Air Act). Such a decision "requires the fusion of technical knowledge and skills which is the hallmark of duties which are discretionary." Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1354 [8 ELR 20373] (9th Cir. 1978); see also Connecticut Fund for the Environment, Inc. v. EPA, 696 F.2d 169, 177 [13 ELR 20151] (2d Cir. 1982) (court deferring to Agency's expertise on technical issue).

Under the terms of the statute, it is possible that the Administrator could find, following his review of the criteria, that revision is not called for. See City of Spokane v. Thomas, No. C-85-095, slip op. (E.D. Wash. June 10, 1985) (Plaintiffs' Exhibit R). In the Administrator's view, this is precisely the scenario presented by the instant case. Thus, if the court was to accept the Administrator's representation that he decided that revisions are not now called for, it would appear that the Administrator has satisfied those mandatory duties which exist under Section 7409(d).⁴ Specifically, the Administrator has completed his review of the sulfur oxide criteria and standards.⁵ Although rejected by this court, the proposition that review and revision of pollutant standards are inevitably linked is not totally without basis.⁶ On the other hand, an Administrative Agency's construction of a statutory scheme it was entrusted to enforce is to be given deference absent clear contrary congressional intent. Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 [14 ELR 20507] (1984) (interpreting Clean Air Act). In the instant case, the Administrator's reading of the statute follows from the section's language and is consonant with the legislative intent embodied in section 7409.⁷ Thus, this court rejects the proposition that under the terms of Section 7409(d), the Administrator is now under a nondiscretionary duty to revise the standards for sulfur oxides.

Plaintiffs, nevertheless, assert that in light of certain factual findings allegedly made by the Administrator, Section 7409(d) now compels the Administrator to revise the sulfur oxide standards. Specifically, plaintiffs assert that following the Administrator's review of the sulfur oxide standards, the Administrator, despite his current protests to the contrary, determined that the existing standards are inadequate. Therefore, it is contended, the Administrator is now under a mandatory duty to revise the standards. In support of this proposition, plaintiffs argue that the instant case is analogous to the case of Natural Resources Defense Council v. Train, 545 F.2d 320 [7 ELR 20004] (2d Cir. 1976).

In that case, the Second Circuit ruled that upon determining that a given pollutant satisfies the requisites of 42 U.S.C. § 7408, the Administrator had a nondiscretionary duty to list that pollutant.⁸ Section 7408 provides that a pollutant must be added to the official list of air pollutants when the Administrator determines that the pollutant has an adverse effect on public health or welfare, see 42 U.S.C. § 7408(a)(1)(A), and is introduced into the ambient air from numerous or diverse mobile or stationary sources. See 42 U.S.C. § 7408(a)(1)(A). After including a pollutant on the list, the Administrator must issue air quality criteria for that pollutant within twelve months.

In Train, the EPA acknowledged that these criteria had been satisfied. Nevertheless, the Administrator declined to list lead as a pollutant. In doing so, the Administrator argued that there was a third criterion yet to be satisfied. Specifically, the Administrator relied on Section 7408(a)(1)(C). That subsection provides that a pollutant shall be listed if air quality criteria had not been issued for that pollutant before December 31, 1970 but the Administrator does plan to issue air criteria pursuant to Section 7408. Thus, the Administrator claimed that even when the criteria set forth in Section 7408(a)(1)(A) and (B) were met, he would be free, if he so chose, to decline to list the pollutant.⁹

Examining the section's legislative history, the Second Circuit rejected the proposition that Section 7408(a)(1)(C) adds a third condition to the listing of a pollutant. Thus, as the EPA conceded that the pollutant satisfied the requirements of the first and second criteria, the Administrator was ordered to list the pollutant.

In the instant case, a quite different section of the Clean Air Act is being subjected to the judicial scrutiny. The legislative history for Section 7408 clearly contradicted the Administrator's interpretation of that section. In the instant case, the Administrator's understanding of Section 7409 follows from the language of that section. Further, the legislative history supports the Administrator's interpretation of Section 7409. See supra note 7. In Train, the Administrator declined to perform a clear mandatory duty imposed by Congress. In the instant case, the text and intent of the relevant statute calls for the exercise of discretion on the part of the [18 ELR 21397] Administrator. Thus, the interpretation of Section 7408 found in Train is not applicable to Section 7409.

The Second Circuit's decision in Train merely required that lead be included in the list of pollutants compiled under Section 7408. Section 7408, which calls for the listing of a pollutant upon the satisfaction of two specific criteria is quite different than a revision of pollutant standards pursuant to Section 7409. The establishment and revision of standards requires the marshalling of extensive scientific data, the weighing of conflicting reports, and an ultimate exercise of judgment and discretion. Another significant difference between Train and the instant case is that in Train, the EPA conceded that all valid statutory prerequisites to listing a pollutant had been met. In the instant case, although plaintiffs assert that the Administrator has found that the sulfur oxide concentrations allowed under the existing standards cause adverse effects on public health or welfare, the Administrator contests that any such finding was made. In support of their contention, plaintiffs cite a number of EPA studies and documents. The plaintiffs, however, are not able to cite to any express finding by the Administrator that the existing standards are inadequate to protect the public health or welfare. Rather, it is contended that in the aggregate, the studies and documents cited constitute such a finding.

The documents cited cannot fairly be read to be a finding by the Administrator that revision of standards is now appropriate. The plaintiffs, in effect, are selectively reviewing the technical data presented to the Administrator, and seek to replace his judgment with their own or with the judgment of this court. Further, even if the EPA had found the existing standards inadequate, in order to issue revised standards, the Administrator must be able to specify a standard which would be "requisite to protect" the public health or welfare from the adverse effects of the relevant pollutant. 42 U.S.C. § 7409(b). There exists considerable scientific debate regarding the causes and specific nature of sulfur oxide pollution. It is clear that scientific uncertainty is not a bar to agency action. See Lead Industries Association v. EPA, 647 F.2d 1130, 1154-55 & n.50 [10 ELR 20643] (D.C. Cir.), cert. denied, 449 U.S. 1042 (1980). Nevertheless, scientific uncertainty is clearly relevant to the question of whether the Administrator, in his discretion, can establish a new standard requisite to protect the public health or welfare.

The plaintiffs are no doubt sincere in contesting the adequacy of the existing sulfur oxide standards. However, as the setting of those standards falls within the discretion of the Administrator, any challenge must be made in the Circuit Court for the District of Columbia. See 42 U.S.C. § 7607. A Section 4604 citizen suit may not be used to substitute the Administrator's judgment with that of a plaintiff. The process by which the Administrator must decide whether or how to revise the standards is complex. Under 4709(b), the Administrator must make a two-fold determination. First, the Administrator must determine whether ambient concentrations of the pollutant are adversely affecting the public health or welfare. Second, the Administrator must be able to specify a new or revised standard level that is "requisite to protect" the public health or welfare from such adverse effects. Such determinations clearly require marshalling of scientific data and the exercise of expert judgment. These are tasks appropriately left to an administrative agency.¹⁰

2. Section 7409(a)(2)

In further support of the proposition that the Administrator is now obliged to revise the sulfur oxide standards, plaintiffs cite 42 U.S.C. § 7409(a)(2).¹¹ That subsection, which was added to the Clean Air Act as part of the 1970 amendments to that statute, provides in pertinent part:

With respect to any air pollutant for which air quality criteria are issued after the date of enactment of the Clean Air Amendments of 1970 [enacted Dec. 31, 1970], the Administrator shall publish, simultaneously with the issuance of such criteria and information, proposed national primary and secondary ambient air quality standards for any such pollutant.

Id. (emphasis added).

Plaintiffs argue that under Section 7409(a), the EPA was obliged to simultaneously issue new sulfur oxide standards when it issued revised sulfur oxide criteria. It is not contested that revised sulfur oxide criteria were issued. Nevertheless, the Administrator argues that he was not obligated to simultaneously publish proposed air quality standards for those pollutants. In support of this position, the Administrator argues that the simultaneous publication requirement is limited to the initial issuance of criteria for pollutants and is not applicable to subsequent revisions of such criteria. Further, the Administrator contends that the simultaneous publication requirement applies only to pollutants for which criteria were first issued after the 1970 enactment date of Section 7409(a)(2).

To best understand the scope of Section 7409(a)(2)'s simultaneous publication requirement, it is helpful to examine that section in context with 42 U.S.C. §§ 7409(a)(1)(A) and (B). Those sections provide:

(1)(A) [The Administrator] within 30 days after the date of enactment of the Clean Air Act Amendments of 1970 [enacted Dec. 31, 1970], shall publish proposed regulations prescribing a national primary ambient air quality standard and a national secondary ambient quality standard for each air pollutant for which air quality criteria have been issued prior to such date of enactment; and

(B) after a reasonable time for interested persons to submit written comments thereon (but no later than 90 days after the initial publication of such proposed standards) shall by regulation promulgate such proposed national primary and secondary ambient air quality standards with such modifications as he deems appropriate.

Id.

Sections 7409(a)(1)(A) and (B) set forth the procedure by which standards would be established for pollutants for which air quality criteria had been established prior to the enactment of the 1970 amendments to the Clean Air Act.¹² Those pollutants include sulfur oxides, the subject of the instant litigation. Section 7409(a)(2), and its simultaneous publication requirement, on the other hand, relates by its terms to those pollutants for which criteria were issued after the date of the enactment of Section 7409(a). Thus, at least prior to the issuance of revised sulfur oxide criteria, Section 7409(a)(2) had no application to the control of sulfur oxide pollution. See S. Rep. 1196, 91st Cong. 2d Sess. 10-11 (1970) (indicating Section 7409(a)(2) is inapplicable to sulfur oxides).

It is less certain, however, whether any subsequent revision of sulfur oxide criteria would implicate Section 7409(a)(2). That section does not expressly provide that its scope is limited to the initial issuance of criteria. Similarly, it is not explicitly stated that Section 7409(a)(2)'s purview does not include subsequent revisions of standards issued pursuant to Sections 7409(a)(A) and (B). Nevertheless, the organization and history of Section 7409 indicate this is in fact the case.

[18 ELR 21398]

In 1977, Section 7409(d) was added to the Clean Air Act. While the text of Section 7409(a) has as its heading "[p]romulgation" of national primary and secondary ambient air quality standards, the heading of Section 7409(d) reads "[r]eview and revision of criteria and standards. . . ." Although statutory headings are not properly used to refute the plain meaning of a statute, they do supply guidance in interpreting ambiguities in that statute. See Brotherhood of Railroad Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 528-29 (1947). The plain language of Section 7409 does not unequivocally support either plaintiffs' or defendants' reading of the simultaneous publication requirement. The relevant headings, however, do support the defendants' contention that there is a bifurcation of the processes of promulgating and revising standards. Further, such bifurcation supports defendants' argument that the simultaneous publication requirement applies only to the initial promulgation of criteria and standards.

Section 7409(d) clearly governs the procedure by which criteria and standards are to be revised. Significantly, Section 7409(d) does not contain any provision calling for simultaneous publication nor does it cross-reference to Section 7409(a)(2). Further, by providing that the "Administrator may review and revise criteria or promulgate new standards" more frequently than required under the statute, Section 7409(d) does not inexorably link the revision of criteria and the issuance of standards. Id. (emphasis added). Under 7409(d), the Administrator is granted broad discretion to make "appropriate" revisions in both pollutant criteria and standards. It would appear that the Administrator's decision to revise the sulfur oxide criteria without also issuing new standards is included within such discretion.

The Administrator's reading of Sections 7409(a) and (d) follows from both the language and organization of those sections. An administrative agency's construction of a statutory scheme it was entrusted to enforce is to be given deference absent clear contrary congressional intent. Chevron U.S.A. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 844 (1984) (interpreting Clean Air Act). There has been no showing that Congress' intent differs from the Administrator's interpretations of his obligations under Section 7409. Accordingly, this court rejects plaintiffs' assertion that under Section 7409(a)(2), the Administrator was obliged to simultaneously publish revised standards upon issuing revised criteria. Thus, it is apparent that the revision and publication of sulfur oxide pollutant standards falls within the discretion of the Administrator. As plaintiffs' complaint addresses nonmandatory duties, the complaint's invocation of jurisdiction pursuant to 42 U.S.C. § 7604 is unavailing.

Alternative Bases for Subject Matter Jurisdiction

In addition to invoking federal jurisdiction pursuant to the citizen suit provisions of the Clean Air Act, the plaintiff relies on federal question jurisdiction, 28 U.S.C. § 1331, the Mandamus Act, 28 U.S.C. § 1361, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, as additional bases for subject matter jurisdiction in the instant case. Appeal to these statutes is unavailing.

Federal question jurisdiction is not appropriately invoked when the federal statute in question establishes the means by which it is to be enforced. See Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984). The Clean Air Act provides that a private citizen may bring suit in the federal district courts to compel the Administrator to perform nondiscretionary duties. See 42 U.S.C. § 7604(a)(2). Discretionary duties, such as those addressed in plaintiffs' complaint and motion for summary judgment, by the terms of 42 U.S.C. § 7607(b), may only be reviewed in the Circuit Court for the District of Columbia. When a statute vests jurisdiction in one particular court, all other courts lose jurisdiction over cases brought pursuant to that statute. See Telecommunications Research and Action Center v. FCC, 750 F.2d 70, 77 (D.C. Cir. 1984).¹³ The acts and omissions which are the subject of this action fall within the scope of the discretion of the Administrator. Thus, jurisdiction could only exist in the Circuit Court for the District of Columbia and plaintiff's appeal to federal question jurisdiction in this court must fail. See Dow Chemical Co. v. Costle, 480 F. Supp. 315, 320 (E.D. Mich. 1978), aff'd, 659 F.2d 724 (6th Cir. 1981).

Both the Mandamus Act and the Declaratory Judgment Act are remedial in nature and do not supply any independent basis for jurisdiction. See St. Vincent's Hospital v. Division of Human Rights, 553 F. Supp. 375, 377 (S.D.N.Y. 1982) (Declaratory Judgment Act); Smith v. Lehman, 533 F. Supp. 1015, 1018 (E.D.N.Y.), aff'd, 689 F.2d 342 (2d Cir. 1982), cert. denied, 459 U.S. 1173 (1983) (Mandamus Act). Further, the Mandamus Act is unavailable absent a plainly defined and mandatory duty. See Heckler v. Ringer, 466 U.S. 602, 616-17 (1984). As indicated above, the Administrator has ignored no such duty. Thus, the alternative bases for jurisdiction propounded by plaintiffs are unavailing. As this court lacks subject matter jurisdiction over the instant action, this court does not rule on the motions for summary judgment but rather dismisses the complaint.

Conclusion

The defendants' motion to dismiss the complaint for lack of subject matter jurisdiction is hereby granted.

SO ORDERED.

1. 42 U.S.C. Section 7604 provides in part "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." Id.

For a discussion of the alternative bases for jurisdiction propounded by the plaintiff, see infra, pages 26-28.

2. Section 7607(b) of Title 42 provides:

Judicial Review. (1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 112 [42 U.S.C. § 7412], any standard of performance or requirement under section 111 [42 U.S.C. § 7411], any standard under section 202 [42 U.S.C. § 7521] (other than a standard required to be prescribed under section 202(b)(1) [42 U.S.C. § 7521(b)(1)]), any determination under section 202(b)(5) [42 U.S.C. § 7545], any standard under section 231 [42 U.S.C. § 7571] any rule issued under section 113, 119, or under section 120 [42 U.S.C. § 7413, 7419, or 7420], or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this Act may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator's action in approving or promulgating any implementation plan under section 110 or section 111(d) [42 U.S.C. § 7410 or 7411(d)], any order under section 111(j), [42 U.S.C. § 7411(j)], under section 112(c) [42 U.S.C. § 7412(c]), under section 113(d) [42 U.S.C. § 7413(d]), under section 119 [42 U.S.C. § 7419], or under section 120 [42 U.S.C. § 7420], or his action under section 119(c)(2)(A), (B), or (C) (as in effect before the date of enactment of the Clean Air Act Amendments of 1977) or under regulations thereunder, or any final action of the Administrator under title I [42 U.S.C. §§ 7401 et seq.]) which is locally or regionally applicable may be filed only in the United States Courts of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination. Any petition for review under this subsection shall be filed within sixty days from the date of notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise.

3. The complaint filed in the instant case also charges that the EPA failed to perform its non-discretionary duty to review the sulfur oxide standards and accordingly requests that such a review be ordered. This claim was not pressed in the motion for summary judgment and plaintiffs now concede that a review did in fact occur. See Plaintiffs' Memorandum in Support of Motion for Summary Judgment, at 50. If there had been any failure to make timely reviews of the standards prior to the most recent review, such an omission does not constitute a live controversy and is not justiciable. See Jackson v. Village of Ossining, No. 82-2012, slip op. (S.D.N.Y. March 30, 1983) (action to compel Secretary of Housing and Urban Development to take mandatory action rendered moot by compliance with duty after case was filed).

The plaintiffs also claim that the Administrator failed in his mandatory duty to publish a formal notice of the completion of his review of the sulfur oxides standard and a formal determination as to the adequacy of the current standards to protect public health and welfare. If the Administrator determines that revision is appropriate, he must then publish proposed revisions to the standards. 42 U.S.C. §§ 7607(d)(a)(A), (d)(3). The Clean Air act however, makes no provision for the publication of the Administrator's decision that revision of the standards is not called for. Absent clear instruction from Congress, courts should be reluctant to deem duties mandatory, and thus reviewable under 42 U.S.C. § 7401. See Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1353 [8 ELR 20373] (9th Cir. 1978). Here, not only is there no indication in the statute that the duty is mandatory, there is no indication that any such duty exists. As the Administrator has no mandatory duty to publish his decision to not alter pollutant standards, there can be no review pursuant to 42 U.S.C. § 7401 of the failure to publish. Thus, this court lacks subject matter jurisdiction over this claim.

4. In support of their position, defendants cite to the case of Oljato of Navajo Tribe v. Train, 515 F.2d 654 [5 ELR 20481] (D.C. Cir. 1975). In Oljato, the petitioners challenged the EPA's refusal to revise previously promulgated standards for emissions of sulfur oxides from newly constructed coal fueled electricity generation stations. In that case, rejecting a claim that failure to revise constituted a violation of a nondiscretionary duty, the Circuit Court ruled that the action to compel revision of standards was beyond the jurisdiction of the district court.

In Oljato, the standards in question were promulgated pursuant to 42 U.S.C. § 1857 c-6 (1970) (Section 111 of the Clean Air Act). That section provided that "[t]he Administrator may, from time to time, revise such standards." This language, although not identical, is similar to Section 7409(d)'s instruction that "[t]he Administrator shall make revisions . . . as may be appropriate." This similarity supports defendants' claims that Section 7409(d), like Section 111 of the Clean Air Act as it was interpreted in Oljato, creates merely a discretionary obligation on the part of the Administrator.

Oljato is also significant in that it demonstrates that by adopting the EPA's interpretation of Section 7409(d), this court does not insulate the Administrator's acts from judicial review. Oljato establishes a procedure by which plaintiffs could petition the EPA to revise the relevant standard. If that petition were to be denied, plaintiffs could then seek judicial relief in the Circuit Court for the District of Columbia pursuant to 42 U.S.C. § 7607. See Oljato at 666.

5. Section 7409(d) includes both the words "shall" and "may" in a single sentence. When such words are used in such close proximity, there is a fair inference that Congress realized the differences in meaning and intended different treatment for the predicates following those terms. 2A N. Singer, Sutherland Statutes and Statutory Construction § 57.11 (4th ed. 1984). Thus, it appears that the process of review, which "shall" take place, is mandatory. On the other hand, the process of revision, which is to take place "as may be appropriate," is discretionary. 42 U.S.C. § 7409(d).

6. For example, in the case of City of Spokane v. Thomas, No. C-85-095, slip op. (E.D. Wash. June 10, 1985), the Court speaks of a duty to "review and revise" imposed by section 7409(d). Id. at 1 (emphasis added). In Thomas, however, the court at no time stated that a review must result in a revision of the relevant standard. Indeed, the Thomas Court expressly recognized that the mandatory review might appropriately lead the Administrator to decide not to alter the existing standard. Id. at 10. Thus, for this reason, and for the reasons stated above, this court rejects the proposition that the Administrator was under a nondiscretionary duty to revise the standards for sulfur oxides.

7. Section 7409(d)'s legislative history supports defendants' claims of broad discretion in determining when and how to revise pollutant standards. See H.R. Rep. No. 294, 95th Cong., 1st Sess. 182-83 (1977).

8. Section 7408(a) provides:

(1) For the purpose of establishing national primary and secondary ambient quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant —

(A) emission of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;

(B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and

(C) for which air quality criteria had not been issued before December 31, 1970, but for which he plans to issue air quality criteria under this section.

(2) The Administrator shall issue air quality criteria for an air pollutant within 12 months after he has included such pollutant in a list under paragraph (1). Air quality criteria for an air pollutant shall accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities. The criteria for an air pollutant, to the extent practicable, shall include information on —

(A) those variable factors (including atmospheric conditions) which of themselves or in combination with other factors may alter the effects on public health or welfare of such air pollutant;

(B) the types of air pollutants which, when present in the atmospheric, may interact with such pollutant to produce an adverse effect on public health or welfare; and

Id.

9. Despite the position taken by the Administrator in Train, the Administrator had previously operated on the policy that upon satisfying Section 7408(a)(1)(A) and (b)(1)(B), a pollutant must be listed. Train, 545 F.2d at 325.

10. The text of 42 U.S.C. § 7409(b), the section prescribing the goals for pollutant standards, underscores the discretion afforded the Administrator in setting and revising pollutant standards. That section provides:

National primary ambient air quality standards, prescribed, under subsection (a) shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health. Such primary standards may be revised in the same manner as promulgated.

(2) Any national secondary ambient air quality standard prescribed, under subsection (a) shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air. Such secondary standardsmay be revised in the same manner as promulgated.

Id. (emphasis added).

11. Intervenors argue that this court should not now consider plaintiffs' claim that the Administrator failed to perform his duties under 42 U.S.C. § 7409(a)(2). Intervenors' claim of preclusion is based on plaintiffs' failure to seek relief pursuant to 42 U.S.C. § 7607(b)(1) within sixty days of the March 1984 Federal Register announcement of the publication of the revised criteria document. As plaintiffs have asserted that the Administrator failed to perform a nondiscretionary duty, absent further inquiry, it would be unclear whether their claim could be heard pursuant to 42 U.S.C. § 7604. Accordingly, inquiry as to be merits of plaintiffs' claim is appropriate. As this court concludes that the Administrator was not under any obligation to publish standards simultaneously with the publication of the criteria document, intervenors' procedural objection is ultimately of no moment.

12. Prior to the passage of the 1970 Amendments to the Clean Act, including the addition of Section 7409, air quality criteria had already been established for a number of pollutants. Sulfur oxides were among those pollutants.

13. The text of 42 U.S.C. § 7607(e) further supports the conclusion that federal question jurisdiction is unavailable in the instant case. That section provides "[n]othing in this Act shall be construed to authorize judicial review of regulations or orders of the Administrator under this Act, except as provided in this section." Id.