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While § 304 of the Clean Air Act does not provide jurisdiction over distinctly discretionary functions of the Administrator of the Environmental Protection Agency, it does permit jurisdiction to decide whether a function is mandatory or discretionary.
Plaintiffs, council and other interested parties, brought an action against defendants, Environmental Protection Agency (EPA) and its administrator, for failure to list lead as a pollutant under § 108 of the Clean Air Act of 1970 (Act). Defendants have moved to dismiss the complaint for lack of jurisdiction and failure to state a claim or for an order granting summary judgment. Plaintiffs have also moved for summary judgment. Plaintiffs have alleged four separate grounds upon which the court might find jurisdiction: 1) § 304 of the Clean Air Act, as amended, 42 U.S.C. §§ 1857h-2(a); 2) the Administrative Procedures Act, 5 U.S.C. §§ 701-706; 3) the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2; and 4) the mandamus provisions of 28 U.S.C. § 1361. Defendants argued that the listing of pollutants under § 108 of the Act was a discretionary function and therefore no jurisdiction was vested in the court by virtue of § 304 of the Act.
Should the complaint be dismissed because of the trial court’s lack of jurisdiction to take cognizance of the same?
The court ruled that while § 304 of the Act, as amended, 42 U.S.C.S. §§ 1857h-2(a), did not provide jurisdiction over distinctly discretionary functions of the administrator, it did permit jurisdiction to decide whether a function was mandatory or discretionary. The court ruled that the statutory scheme contemplated a mandatory duty on the part of the administrator, which was enforceable in the action, and that there was no language anywhere in the statute which indicated that the administrator had discretion to choose among the remedies which the Act provided. Rather, it interpreted Congress's intent was to trigger the elaborate procedures of §§ 108-110 of the Act whenever the pollutant had an adverse effect on health and was from the necessary sources. The threshold question for the court was whether lead had to be listed according to § 108 of the Act and, it determined that lead was a required listing.