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Corut Rejects States’ Bid for Acid Rain Controls

June 8, 1987

WASHINGTON (AP) _ The Supreme Court today refused to force the Reagan administration to adopt rules for reducing acid rain pollution.

The court, without comment, rejected appeals by eight northeastern states, a Canadian province and environmental groups seeking to bind the government to a pollution-control commitment made by the former Carter admnistration.

The dispute stemmed from a Jan. 13, 1981, letter by Douglas M. Costle, then the administrator of the Environmental Protection Agency, in the waning days of the Carter administration.

Costle wrote to then-Secretary of State Edmund S. Muskie that acid rain, or acid deposition as it is also called, ″is endangering public welfare in the U.S. and Canada.″

The question that arose was whether Costle’s letter amounted to formal action that bound future administrations under the 1977 Clean Air Act to identify states where pollution occurs and to take steps to reduce it.

Costle based his conclusion about acid rain’s dangers on a report by the International Joint Commission, which has U.S. and Canadian representatives and advises both nations on matters affecting the Great Lakes.

When the Reagan administration took office, it refused to act on Costle’s recommendation. EPA officials say they are awaiting the outcome of additional research on the causes and effects of acid rain.

The current administration was sued by environmental groups, the province of Ontario, eight states and others seeking to force federal action.

The states are New York, Maine, Massachusetts, Vermont, New Jersey, Rhode Island, Connecticut and New Hampshire.

Lawyers for the states said acid rain is a dire threat to ″the health of fisheries, forests and human populations in large areas of eastern Canada and the northeastern United States.″

Acid rain, they added, is being generated by huge quantities of sulfur dioxide and nitrogen oxide from electric power plants and smokestacks. The pollution is carried long distances, they said.

Ontario officials said a crackdown on the pollution that causes acid rain ″could have an enormous beneficial impact on environmental quality in eastern North America.″

But the U.S. Circuit Court of Appeals here ruled last September that Costle’s 1981 letter does not bind the Reagan administration to act.

The appeals court said the letter lacks the force of law because the Carter administration did not follow the necessary procedural steps for adopting federal regulations. Such rules must be published in the Federal Register and the public must have an opportunity to comment, the appeals court said in an opinion by Antonin Scalia.

The opinion was among the last written by Scalia as a federal appellate judge before he joined the Supreme Court on an appointment by President Reagan. Scalia took no part in considering the appeal acted on today.

The Reagan administration has been criticized by environmental groups for dragging its feet on acid rain. But administration officials said they are moving to combat the pollution.

Justice Department lawyers, urging the high court to kill the lawsuit, said acid rain is ″the focus of extensive bilateral discussions and study″ by the United States and Canada.

They said the administration is committed to appropriating $2.5 billion, to be matched by $2.5 billion in private funds, for developing ″appropriate control technology″ to combat acid rain.

The cases are New York vs. Thomas, 86-1373, and Ontario vs. Thomas, 86-1374.

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