Appeal from a judgment of the United States District Court for the Southern District of New York, Charles S. Haight, Jr., Judge, dismissing plaintiff-appellant's complaint for lack of subject matter jurisdiction under section 304(a)(2) of the Clean Air Act, 42 U.S.C. § 7604(a)(2) (1982).
Newman, Pierce and Mahoney, Circuit Judges.
Plaintiff-appellant, Natural Resources Defense Council, Inc. ("NRDC"), appeals from a judgment of the United States District Court for the Southern District of New York, Charles S. Haight, Jr., Judge, dismissing NRDC's complaint under section 304(a)(2) of the Clean Air Act (the "Act"), 42 U.S.C. § 7604 (1982)*fn1, against Lee M. Thomas, the Administrator (the "Administrator") of the Environmental Protection Agency (the "EPA") for lack of subject matter jurisdiction. The opinion below is reported at 689 F. Supp. 246 (S.D.N.Y. 1988).
Two jurisdictional provisions of the Act are arguably relevant here. Actions which seek to compel the Administrator to perform nondiscretionary acts or duties are to be brought in the district courts pursuant to section 304(a)(2) of the Act, 42 U.S.C. § 7604(a)(2) (1982).*fn2 Petitions seeking review of action by the Administrator in promulgating any emission standard or requirement under section 112 of the Act, 42 U.S.C. § 7412 (1982), may be filed only in the United States Court of Appeals for the District of Columbia pursuant to section 307(b)(1) of the Act, 42 U.S.C. § 7607(b)(1) (1982).*fn3
NRDC brought suit under section 304(a)(2) of the Act in the United States District Court for the Southern District of New York to compel the Administrator to add two metals (cadmium and hexavalent chromium) and six organic chemicals (acrylonitrile, carbon tetrachloride, chloroform, ethylene oxide, 1,3-butadiene and ethylene dichloride) (collectively the "Pollutants") to a list of hazardous air pollutants (the "List") that the EPA is charged with maintaining under Act § 112(b)(1)(A), 42 U.S.C. § 7412 (b)(1)(A) (1982). The Administrator is required under Act § 112(b)(1)(B), 42 U.S.C. § 7412 (b)(1)(B) (1982), to publish proposed regulations establishing emission standards for any pollutant within 180 days of its addition to the List, with a notice of public hearing within thirty days, and to prescribe an emission standard therefor within 180 days after such publication "unless he finds, on the basis of information presented at such hearings, that such pollutant clearly is not a hazardous air pollutant." Id.
NRDC contends that the Administrator is required to add the Pollutants to the List because each has been recognized as either a known or probable carcinogen in a series of notices (the "Notices") published by the EPA in the Federal Register.*fn4 NRDC argues that this recognition triggered a nondiscretionary duty on the part of the Administrator to add the Pollutants to the List, and thus created subject matter jurisdiction for this action in the district court under Act § 304(a)(2).
During the proceedings below, potentially affected industry representatives named in the caption (the "Intervenors") were permitted to intervene pursuant to Fed.R.Civ.P. 24. The Administrator and the Intervenors moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, contending that no nondiscretionary duty on the part of the Administrator had been triggered by the Notices.
The district court ruled that since the conclusions reached in the Notices were preliminary and did not constitute statutory determinations that the eight pollutants were "hazardous air pollutants" within the meaning of Act § 112(b)(1)(A), the Administrator's decision whether to list the Pollutants was discretionary and not reviewable in the district court.
The Clean Air Act is a complex body of environmental legislation first enacted in 1955 and later amended substantially in 1970 and 1977.*fn5 It is intended "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." Act § 101(b)(1), 42 U.S.C. § 7401(b)(1) (1982). In order to advance this objective, the Clean Air Act Amendments of 1970 adopted two regulatory approaches for controlling air quality.
Under the first approach, addressed to "criteria" pollutants regulated by Act §§ 108-110, 42 U.S.C. §§ 7408-7410 (1982), a complex federal/state relationship is established for the control of pollutants described in "criteria" listings issued by the Administrator pursuant to Act § 108. Section 109 directs the Administrator to establish primary ambient air quality standards "to protect the public health" with "an adequate margin of safety," and secondary ambient air quality standards "to protect the public welfare," for each pollutant listed pursuant to section 108. Act § 109(a) and (b). Section 110 requires the states in turn to implement emission controls to achieve the federal ambient standards.
Unlike the criteria pollutant program, the second approach is not based upon federal/state cooperation, but upon the Administrator's direct authority to establish and implement emission standards at a number of "stationary sources" pursuant to a variety of provisions of the Act. For example, Act § 111, 42 U.S.C. § 7411 (1982), empowers the EPA to establish emission standards for new stationary sources of air pollution. Act § 221, 42 U.S.C. § 7521 (1982), authorizes the Administrator to establish emission standards for new motor vehicles and new motor vehicle engines. Act § 271, 42 U.S.C. § 7571 (1982), provides similar authority with respect to aircraft.
B. Statutory Framework of Section 112.
Section 112, which was added to the Clean Air Act by the 1970 amendments, Pub.L. No. 91-604, § 4(a), 84 Stat. 1685 (1970), is part of this second approach. It authorizes the Administrator to regulate the emission from stationary sources of any "hazardous air pollutant;" i.e., a pollutant to which no ambient air quality standard imposed pursuant to Act § 109 is applicable, and which "in the judgment of the Administrator causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness." 42 U.S.C. § 7412(a)(1) (1982).
Regulation under section 112 involves a two step process. The first step consists of the Administrator's listing hazardous air pollutants pursuant to Act § 112(b)(1)(A), which provides:
The Administrator shall, within 90 days after December 31, 1970, publish (and shall from time to time thereafter revise) a list which includes each hazardous air pollutant for which he intends to ...