Law School Case Brief
Natural Resources Defence Council, Inc. v. Train - 545 F.2d 320 (2d Cir. 1976)
42 U.S.C.S. § 1857c-3(a)(1) contains mandatory language. It provides that the Administrator shall publish a list.
The Environmental Protection Agency (EPA) found that lead has an adverse effect on public health and welfare, and that the presence of lead in the ambient air resulted from numerous or diverse mobile or stationary sources, thereby, meeting the criteria of §§ 108(a)(1)(A) and (B) . Notwithstanding this, however, appellant Administrator of EPA announced that he would not place lead on a list of airborne pollutants under 42 U.S.C.S. § 1857c-3(a)(1) for which the states had to create strategies for limitation. Thereafter, appellee environmental groups filed this suit for a mandate to the EPA Administrator to do so. The trial court entered summary judgment in favor of appellee and required appellant Administrator to include lead in the list. On appeal, the EPA argued that under § 108(a)(1)(C) of the Act, the Administrator retained discretion whether to list a pollutant, even though the pollutant met the criteria of §§ 108(a)(1)(A) and (B).
Did the EPA Administrator retain discretion whether to list a pollutant, even if it met the criteria of §§ 108(a)(1)(A) and (B)?
The court affirmed the trial court's judgment. The court held that once appellant Administrator had found lead to have an adverse effect on public health or welfare and it had been found to result from numerous or diverse sources, appellant administrator had no discretion in including lead on the list of substances under § 1857c-3(a)(1). According to the court, the timetable enacted by Congress in 42 U.S.C.S. §§ 1857c-5 through c-5 would have been futile had appellant administrator been able to exclude substances he had already found harmful.
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