Acid rain does not respect political boundaries; the problem of acid rain has had a devastating effect on human health and the environment of the northeastern United States as well as the area across the Canadian border. Recognizing the implications of trans-boundary air pollution problems such as acid rain, Congress amended section 115 of the Clean Air Act to permit the Administrator of the Environmental Protection Agency to order the reduction of air pollution menaces emanating from the United States which affect foreign nations. New York v. Thomas is the first major case to interpret section 115 and it will have a major impact on the ability to combat international acid rain problems through the Clean Air Act. This note discusses issues which often arise in environmental litigation such as the difficulties in identifying sources and assessing responsibility, the problem of interpreting statutory language to decide how much discretion agency officials have to not pursue identified environmental hazards, and most importantly, under what circumstances notice and comment is required and when in the rulemaking process it must be given. This note shows that the court of appeals' ruling on the notice and comment issue in this case has incorrectly permitted practically unlimited discretion to EPA administrators under section 115 of the Clean Air Act. The unfortunate impact of this ruling is that it allows EPA Administrators, when faced with identified international environmental hazards such as the acid rain problem affecting Canada and the northeastern United States, to ignore the situation indefinitely.
Note, The EPA's Discretion to Regulate Acid Rain: A Discussion of the Requirements for Triggering Section 115 of the Clean Air Act, 36 Clev. St. L. Rev. 133 (1988)