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January 12, 1983

ANN GORSUCH, as Administrator of the United States Environmental Protection Agency, Defendant

Conner, D. J.

The opinion of the court was delivered by: CONNER



 Plaintiff the State of New York ("New York") brought this action against defendant the Administrator of the United States Environmental Protection Agency (the "EPA" or "Agency") pursuant to § 304(a)(2) of the Clean Air Act (the "Act"), 42 U.S.C. § 7604(a)(2), *fn1" seeking a declaration that the Administrator has failed to perform the nondiscretionary duty imposed upon her by § 112(b)(1)(B) of the Act, 42 U.S.C. § 7412(b)(1)(B), and an injunction requiring her to comply with that statute. By a consent order dated September 3, 1982, this Court entered partial summary judgment in plaintiff's favor declaring that defendant has violated her duty under § 112 of the Act. The order expressly left open the question of an appropriate remedy for the Administrator's failure to comply with the statutory mandate. The case is currently before the Court on New York's motion for summary judgment on the issue of a remedy and for an order enforcing the statutory timetable. For the reasons stated below, plaintiff's motion is granted.


 Five years ago, Congress enacted § 122 of the Act, 42 U.S.C. § 7422, which directed the Administrator, inter alia, to determine within one year whether airborne arsenic may reasonably be anticipated to endanger the public health. On June 5, 1980, almost two years later than she was required by Congress to make such a decision, the Administrator finally listed inorganic arsenic as a hazardous air pollutant pursuant to § 112(b)(1)(A) of the Act, 42 U.S.C. § 7412(b)(1)(A). *fn2" 45 Fed.Reg. 37886 (1980). By listing arsenic, the Administrator became subject to § 112(b)(1)(B) of the Act, 42 U.S.C. § 7412(b)(1)(B), which requires:

(B) Within 180 days after the inclusion of any air pollutant in such list, the Administrator shall publish proposed regulations establishing emissions standards for such pollutant together with notice of a public hearing within thirty days. Not later than 180 days after such publication, the Administrator shall prescribe an emission standard for such pollutant, unless he finds, on the basis of information submitted at such hearings, that such pollutant is clearly not a hazardous air pollutant. The Administrator shall establish any such standard at the level which in his judgment provides an ample margin of safety to protect the public health from such hazardous air pollutant. (emphasis added).

 In spite of this mandate, the Administrator has failed to publish any proposed regulations. Accordingly, the order entered by this Court on September 3, 1982 declared that the Administrator has failed to comply with her nondiscretionary duties under § 112 of the Act.

 It is now more than two years beyond the date the Administrator was required to publish proposed regulations under § 112 of the Act, more than two and one-half years since inorganic arsenic was listed as a hazardous air pollutant, and almost five and one-half years since Congress ordered the Administrator to study immediately and, if warranted, to regulate promptly the emission of arsenic into the air. The question remains what remedy this Court should order for the Administrator's failure to heed Congress's directive.

 Legal Standard

 Summary judgment is appropriate only where the Court is satisfied that the moving party has met its burden of establishing that there exists no genuine issue with respect to any material fact and that it is entitled to judgment as a matter of law. Rule 56, F.R.Civ.P.; Friedman v. Meyers, 482 F.2d 435, 438-39 (2d Cir. 1973). In making this determination, the Court cannot try issues of fact, but can only determine whether there are issues of fact to be tried. SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978). The Court will consider affidavits, depositions, answers to interrogatories, and admissions, but will not give any effect to mere conclusory allegations or denials, or to unsubstantiated assertions submitted by a party. The goal of this procedure is not to subjugate the rights of a party by requiring him to submit to trial by affidavit, but rather to weed out and dispose of unsupportable claims prior to trial as a means of protecting the other party and the Court from further proceedings which can be little more than harassment. See Feick v. Fleener, 653 F.2d 69, 77 (2d Cir. 1981); Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970).


 In support of its motion for an order resetting the statutory timetable, *fn3" New York argues quite straightforwardly that the Administrator has a nondiscretionary statutory duty, that she has failed to comply with it, and consequently, that she should now be required to fulfill her duty in compliance with the statutory time schedule, recommencing from the date of this Opinion and Order. The Administrator, on the other hand, claims that she is unable to promulgate the statutorily required regulations within the time frame established by Congress, and that therefore the Court should use its equitable powers to enter a remedial order allowing her additional time to complete her tasks.

 It is indeed true that a grant of jurisdiction to the district courts to ensure compliance with a particular statute does not mechanically obligate a federal judge sitting as a chancellor in equity to grant an injunction for every violation of that law. Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S. Ct. 1798, 72 L. Ed. 2d 91, slip op. at 7 (1982); TVA v. Hill, 437 U.S. 153, 193, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (1978). The essence of equity is the power of the chancellor to exercise flexibility and mold his decree to the necessities of the particular case. Weinberger, supra, slip op. at 6. An injunction is designed to deter, not to punish. Hecht Co. v. Bowles, 321 U.S. 321, 329, 88 L. Ed. 754, 64 S. Ct. 587 (1944). But, of course, Congress may, in an exercise of its constitutionally delegated powers, act to restrict or guide the court's discretion in a particular area. See Weinberger, supra, slip op. at 7-8. If Congress formulates policies and programs to meet specific problems, it may also establish their relative priority for the Nation. TVA v. Hill, supra, 437 U.S. at 194. In such a situation, the court's role is to enforce the legislative will when called upon to do so. Id.

 Thus, in TVA v. Hill, the Supreme Court concluded that Congress, in passing the Endangered Species Act, had made a clear decision to favor endangered species over competing concerns. That congressional determination, therefore, foreclosed the exercise of the usual discretion possessed by a court of equity and required the district court to act to enjoin the completion of the Tellico Dam in order to preserve the endangered snail darter, even though other ...

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