ELR Citation: ELR 20089
No(s). 6:93CV00370 (M.D.N.C. Jul 20, 1994)

The court holds that tobacco trade groups and companies challenging a U.S. Environmental Protection Agency (EPA) report that classified environmental tobacco smoke as a known human carcinogen have stated a cause of action under the Administrative Procedure Act (APA). The court first holds that the report and classification constitute agency action, because the Radon Gas and Indoor Air Quality Research Act requires the EPA Administrator to conduct research on the identification and characterization of sources of indoor air pollution and the effects of that pollution on human health. She can exercise no discretion, the hallmark of unreviewable agency action. EPA's use of notice-and-comment procedures suggests that it intended the report and classification to have a regulatory effect, and they did have such an effect. Furthermore, this case bears a striking resemblance to Synthetic Organic Chemical Manufacturers Ass'n v. Secretary (W.D. La. 1989), in which the trial court found that it had authority to review a government report.

The court next holds that the report and classification constitute final agency action because the action is definitive and has had direct practical effects on the tobacco interests. Although the report and classification do not create any legal rights or obligations, this is not dispositive of the finality issue given the pragmatic approach to finality that the U.S. Supreme Court has approved. The Radon Gas and Indoor Air Quality Research Act expressly prohibits the Administrator from taking regulatory action and permits EPA to do no more than conduct research and publish the results, which it did. Within the confines of the Act, this action must be deemed final. The court next holds that the case is fit for judicial review. The resolution of factual issues is not dependent on any future action, and although they will involve complicated and highly technical scientific evidence that does not preclude judicial review. The court assumes that because defendants have not mentioned any failure of plaintiffs to exhaust administrative remedies, there are none to be exhausted and, therefore, the court need not withhold review pending the development of an administrative record. In addition, the court holds that immediate judicial review would foster agency and judicial efficiency, because judicial review now would not interfere with agency plans concerning the report and classification. Also, it would be more efficient to determine the validity of the report and classification before more agencies promulgate regulations that could be subject to invalidation if the report and classification were found improper. The court holds that plaintiffs' APA claims are ripe for review because the criteria for ripeness are effectively the same as the criteria for finality. Finally, the court defers until the next dispositive stage of litigation the determination of the legal sufficiency of plaintiffs' claim under the Due Process Clause of the Fifth Amendment to the U.S. Constitution.

Counsel for Plaintiffs
James Dorsett Jr.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan
2500 First Union Capital Ctr.
P.O. Box 2611; Raleigh NC 27602
(919) 821-1220

Counsel for Defendants
John Nagle
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000