## Facts

- Public-interest organizations sued the EPA Administrator under the Clean Air Act’s citizen-suit provision, alleging unlawful failure to list lead as an air pollutant under § 108(a)(1).
- Section 108(a)(1) directs the Administrator to publish and revise a list that includes each air pollutant that: (A) adversely affects public health or welfare; (B) comes from numerous or diverse sources; and (C) lacked pre-1971 air quality criteria but for which the Administrator plans to issue criteria.
- Listing under § 108 triggers additional statutory duties, including development of national ambient air quality standards and state implementation planning under §§ 109–110.
- EPA had previously determined that lead in ambient air adversely affects public health or welfare and results from numerous or diverse mobile or stationary sources.
- EPA did not list lead under § 108, instead regulating lead primarily through other provisions, including § 211 (fuel and fuel additives).
- EPA argued listing was discretionary because criterion (C) depends on the Administrator’s “plans” to issue air quality criteria, and EPA asserted it had not formed definite plans for lead.
- The district court granted summary judgment to plaintiffs and ordered EPA to list lead within 30 days; EPA appealed.
- During the appeal, EPA listed lead but conditioned the listing on the outcome of the appeal.

## Issues

1. Whether the Clean Air Act’s citizen-suit provision (§ 304) provides jurisdiction to compel EPA action alleged to be a nondiscretionary duty under § 108.
2. Whether § 108(a)(1) imposes a nondiscretionary duty to list lead once the statutory criteria are satisfied, or permits EPA to withhold listing based on criterion (C) or reliance on other regulatory provisions.

## Decision

- The district court held § 304 authorized the suit to determine whether the challenged duty was nondiscretionary and ordered EPA to list lead within 30 days.
- The Second Circuit affirmed, holding that § 304 covered the claim and that EPA had a nondiscretionary duty to list lead under § 108(a)(1).
- The Second Circuit rejected EPA’s attempt to avoid § 108 listing by declining to “plan” for criteria or by preferring regulation under other Clean Air Act provisions.

## Legal Principles

- Clean Air Act § 304 authorizes citizen suits to compel EPA performance of nondiscretionary duties and permits courts to decide whether an asserted duty is mandatory or discretionary.
- Under § 108(a)(1), once the statutory criteria for listing are met, the Administrator must list the pollutant; the “shall” formulation indicates a mandatory obligation.
- Criterion (C) cannot be used as a control device to defeat listing by simply refusing to form plans to issue air quality criteria where the statutory scheme contemplates that criteria will follow listing.
- The availability of other regulatory authorities (including source-control provisions such as § 211) does not excuse nonperformance of a specific mandatory duty under § 108.
- Where EPA has already made findings satisfying § 108(a)(1)(A) and (B), it cannot treat those findings as a basis to postpone or avoid listing.

## Conclusion

The courts held that EPA’s obligation to list lead under Clean Air Act § 108 was nondiscretionary once EPA’s own findings established the statutory criteria, and that § 304 provided jurisdiction for a citizen suit compelling EPA to perform that duty despite EPA’s preference to regulate lead through other provisions.


Natural Res. Def. Council, Inc. v. Train, 411 F. Supp. 864 (S.D.N.Y.), aff’d, 545 F.2d 320 (2d Cir. 1976)