ELR Citation: ELR 21354
No(s). 88-1778 (D.C. Cir. Aug 31, 1990)

The court rules that §115 of the Clean Air Act does not require the Environmental Protection Agency (EPA) to initiate rulemaking that would set in motion §115's international pollution abatement procedures until the Agency is able to identify the specific sources in the United States of air pollutants causing acid deposition in Canada. In 1981, then-EPA Administrator Costle wrote two letters concluding that acid deposition was endangering public welfare in the United States and Canada, and that some of that pollution originated in the United States. In 1984, in the absence of further EPA action related to those letters, several states, environmental groups, and private citizens sued EPA under Clean Air Act §304(a)(2), alleging that the Costle letters represented Agency endangerment and reciprocity findings that imposed a duty on EPA to identify source states and issue state implementation plan (SIP) revision notices. Although the district court agreed with petitioners, the D.C. Circuit reversed, holding that the Costle letters were rules under the Administrative Procedure Act that could not be promulgated without notice and comment procedures. Petitioners then sought review of another EPA official's letters claiming that EPA interpreted §115 as a unitary proceeding. The court first holds that the EPA official's letters represent final Agency action as to EPA's interpretation of §115. Although EPA concededly made no final decision on petitioners' request that the §115 remedial process be initiated, EPA, based on its construction of §115, rejected petitioners' requests for a separate proceeding limited to the endangerment and reciprocity findings. The court finds that the EPA official was speaking for EPA and the interpretation contained in his letters has been adhered to by EPA since 1984, when the first lawsuit was filed seeking to compel the issuance of SIP revision notices. Thus, the court concludes that the EPA official's letters, by adhering to the position that §115's procedures are not divisible, confirm a definitive position that has a direct and immediate impact on the parties, effectively represent reviewable final Agency action. The court next holds that because the issue before the court is a purely legal question of statutory interpretation that is, whether §115 obliges EPA to promulgate endangerment and reciprocity findings even when it is unable to follow through with notification to specific states), it is ripe for review. Further development of the technical and factual aspects of EPA's acid rain research will not aid the court in resolving this issue, nor will it prematurely interfere with EPA's own consideration of the issue, since the EPA official's letters represent a definitive statement of the Agency's position.

Turning to the merits, the court finds that the language of §115 does not reveal whether Congress intended proceedings to be unitary or divisible. Although the structure of the statute tends to support EPA's view, the statutory language creates specific linkage between the endangerment finding and the remedial procedures. If there is insufficient information to enable EPA to implement remedies, the promulgation of an endangerment finding alone would be largely pointless. The court thus rules that EPA's view that it must have sufficient evidence correlating the endangerment to sources of pollution within a particular state before it can exercise discretion to make endangerment findings is reasonable and consistent with the statute. If EPA does not have sufficient knowledge to trace endangering pollutants to sources within specific states, then a simple endangerment finding would leave §115(b) without effect. The court holds that while EPA's interpretation of §115 is permissible, the EPA official's letters do not represent final Agency action and thus the court is precluded from reviewing the Agency's present refusal to commence proceedings under §115. The court observes that while it has jurisdiction to review claims of unreasonably delayed Agency action under the Clean Air Act, EPA's failure to proceed with rulemaking here is reasonable. Given the permissibility of EPA's view of §115 as unitary, and the undisputed technical and scientific uncertainties that must be resolved in order to trigger §115, the Agency's delay is reasonable. The court concludes that although it has been nine years since the Costle letters revealed that EPA was aware that pollutants from sources in the United States were endangering the public welfare in Canada, the release of the National Acid Precipitation Assessment Program studies is due in December 1990, and should provide EPA with a sufficient basis to make a reasoned decision on petitioners' rulemaking petitions.

Counsel for Petitioners
Bruce J. Terris
Terris, Edgecombe, Hecker & Wayne
1121 12th St., NW, Washington DC 20005
(202) 682-2100

Howard I. Fox
Sierra Club Legal Defense Fund, Inc.
1424 K St., NW, Ste., 600, Washington DC 20005
(202) 347-1770

David R. Wooley
Office of Attorney General
Department of Law, State Capitol, Albany NY 12224
(518) 474-7330

Counsel for Respondents
Karen L. Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Charles S. Carter, Ass't General Counsel
Office of General Counsel
U.S. Environmental Protection Agency, 401 M St., SW,
Washington DC 20460
(202) 475-8040

Before WALD, Chief Judge, and MIKVA and BUCKLEY, Circuit Judges.