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NEW YORK v. THOMAS

July 26, 1985

STATE OF NEW YORK, et al., Plaintiffs,
v.
LEE M. THOMAS, et al., Defendants



The opinion of the court was delivered by: JOHNSON

 Norma Holloway Johnson, Judge.

 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-intervenors 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 et seq. (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. 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.

 I. FACTUAL BACKGROUND

 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 issued 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 determinations 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 Administrators Gorsuch and Ruckelshaus have stated their belief 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.

 42 U.S.C. § 7415(a)-(c).

 II. JUSTICIABILITY

 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 . . . .

 42 U.S.C. § 7604.

 Plaintiffs allege that under section 115 the Administrator is charged with performing 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 slip op. pp. 27-30; however, as the Court concludes that the duties are 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 (9th Cir. 1978).

 B. Applicability of TRAC

 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, 242 U.S. App. D.C. 222, 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." 28 U.S.C. § 2342(1) (1982); 47 U.S.C. § 402(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 v. Beals, 396 U.S. 45, 24 L. Ed. 2d 214, 90 S. Ct. 200 (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, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (" Valley Forge ") [quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976)]. Warth v. Seldin, 422 U.S. 490, 498-99, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975); Linda R.S. v. Richard D., 410 U.S. 614, 617, 35 L. Ed. 2d 536, 93 S. Ct. 1146 (1973); Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962).

 1. General Principles

 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, 10 L. Ed. 2d 357, 83 S. Ct. 1266 (1963) (state permitted to sue under the Natural Gas Act without meeting parens patriae criteria); Phillips Petroleum Company v. Wisconsin, 347 U.S. 672, 98 L. Ed. 1035, 74 S. Ct. 794 (1954); Pennsylvania v. Kleppe, 174 U.S. App. D.C. 441, 533 F.2d 668 (D.C. Cir. 1976) cert. denied, 429 U.S. 977, 97 S. Ct. 485, 50 L. Ed. 2d 584; see also Hancock v. Train, 426 U.S. 167, 196, 48 L. Ed. 2d 555, 96 S. Ct. 2006 (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, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972) and Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197. 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 cured, may lead directly to reduced emissions and thus reduced harm. Plaintiffs have quite clearly stated that "respirable particulates and deposition of acidic materials are causing substantial and irreversible 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 ("aesthetic 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 areas, 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, 70 L. Ed. 2d 309, 102 S. Ct. 205 (1981); Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 264 n.9, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977).

 2. Direct Injury

 In addition to presenting properly cognizable claims in their representative or individual capacities, plaintiffs also have alleged cognizable direct injury sufficient to meet the 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, 37 L. Ed. 2d 254, 93 S. Ct. 2405 (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 (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).

 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 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 of international air pollution. See S. Rep. No. 127, 95th Cong. 1st Sess. 57 (1977). See also Animal Welfare Institute v. Kreps, 183 U.S. App. D.C. 109, 561 F.2d 1002, 1010 (D.C. Cir. 1977), cert. denied, 434 U.S. 1013, 54 L. Ed. 2d 756, 98 S. Ct. 726 (1978) (by enacting remedial measures 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:

 
Because 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 'presents 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, 225 U.S. App. D.C. 387, 698 F.2d 1239, 1248 (D.C. Cir. 1983) (citations omitted), rev'd on other grounds, 467 U.S. 340, 104 S. Ct. 2450, 81 L. Ed. 2d 270 (1984). Accord: International Ladies' Garment Workers' Union v. Donovan, 232 U.S. App. D.C. 309, 722 F.2d 795, 811 n. 27 (D.C. Cir. 1983); cert. denied, 469 U.S. 820, 105 S. Ct. 93, 83 L. Ed. 2d 39 (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, 184 U.S. App. D.C. 133, 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 ...


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