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  Répertoire du Clergé Canadien, Montreal, 1893; Rose's Cyclop. of Canadian Biography, Toronto, 1888.]

WALSH, JOHN BENN, first  (1798–1881), born at Warfield Park, Berkshire, on 9 Dec. 1798, was the only son of Sir John Benn Walsh, bart., of Warfield Park, Berkshire, and Ormathwaite, Cumberland. His father was the son of William Benn of Moor Row, Cumberland, a member of an old north-country family; he married in 1778 Margaret, daughter of Joseph Fowke of Bexley, Kent, by his wife Elizabeth, daughter of Joseph Walsh, governor of Fort St. George. On 4 April 1795 he assumed the surname and arms of Walsh by royal license, in compliance with the will of his wife's uncle, John Walsh (1725?–1795) [q. v.], son of Joseph Walsh. He was created a baronet on 14 June 1804, sat for Bletchingly 1802–6, and died on 7 June 1825. His son was educated at Eton, and matriculated from Christ Church, Oxford, on 3 Dec. 1816 (, Alumni Oxon.) Entering parliament for the borough of Sudbury in 1830, he represented that constituency in the tory interest in three parliaments until December 1834. An ardent politician and an able writer, he published several pamphlets on parliamentary reform. In January 1835 Sir John contested the county of Radnor, but was defeated by a small majority. At the next general election, following the accession of the queen in 1837, he was an unsuccessful candidate for Poole, but the following March was again returned at a by-election for Sudbury. In two years' time, however, he accepted the Chiltern Hundreds, and was returned (on 10 June 1840) without opposition for Radnorshire, which he afterwards represented for nearly twenty-eight years, the only occasion on which his re-election was challenged being in 1841, when he defeated Lord Harley. He was J.P. and D.L. for Berkshire, and served as high sheriff of that county in 1823. Being lord of the manor of Trewerne in Radnorshire and the owner of considerable property there, he was also J.P. for that county and high sheriff in 1825, and on 11 Aug. 1842 was sworn in lord-lieutenant and custos rotulorum of Radnorshire. On 16 April 1868 he was raised to the peerage as Baron Ormathwaite. Owing to advancing years he resigned the lieutenancy of Radnorshire in favour of his son, the present lord, who received the appointment on 19 April 1875. Ormathwaite died at his seat, Warfield Park, Bracknell, Berkshire, on 3 Feb. 1881. He married, on 8 Nov. 1825, Jane, youngest daughter of George Harry Grey, sixth earl of Stamford and Warrington. By her he had two sons and two daughters, and was succeeded by his eldest son, Arthur.

Ormathwaite was author of some able pamphlets, of which the principal were: 1. ‘The Poor Laws in Ireland,’ 1830. 2. ‘Observations on the Ministerial Plan of Reform,’ 1831. 3. ‘On the Present Balance of Parties in the State,’ 1832. 4. ‘Chapters of Contemporary History,’ 1836. 5. ‘Political Back-Games,’ 1871. 6. ‘Astronomy and Geology Compared,’ 1872. 7. ‘Lessons of the French Revolution, 1789–1872,’ 1873.

[Foster's Peerage; Haydn's Book of Dignities, ed. Ockerby; Official Returns of Members of Parliament; H. S. Smith's Parliaments; Williams's Parliamentary History of Wales; obituary notices in Times and Guardian.]

WALSH, JOHN EDWARD (1816–1869), Irish judge and writer, born on 12 Nov. 1816, was the son of Robert Walsh [q. v.], by his wife Ann, daughter of John Bayly. He received his early education at Bective school, Dublin, and matriculated at Trinity College, Dublin, in July 1832. At the conclusion of his undergraduate course he was awarded the first gold medal both in classics and ethics. He graduated B.A. in 1836.

In 1839 Walsh was called to the Irish bar, and joined the Leinster circuit. During his early years at the bar Walsh was a frequent contributor to the ‘Dublin University Magazine.’ He also edited several law-books, one of which, brought out in 1844 in conjunction with Richard Nun, on ‘The Powers and Duties of Justices of the Peace in Ireland,’ was long a standard text-book on the subject to which it relates. He was a reporter in the court of chancery from 1843 to 1852. In 1857 Walsh became a queen's counsel, and, two years later, crown prosecutor at Green Street. In 1866 he was appointed attorney-general for Ireland in Lord Derby's third administration, and in the same year was elected to represent the university of Dublin in parliament. In the same year he was raised to the Irish bench as master of the rolls, in succession to Thomas Barry Cusack-Smith [q. v.] In this eminent position Walsh displayed judicial qualities of a high order. His decision in the celebrated cause of MacCormac v. The Queen's University was of capital importance. It invalidated the charter granted to the university by Earl Russell's government in 1866. It was during his tenure of office as master of the rolls that the Irish public record office was reorganised under Sir Samuel Ferguson [q. v.]

Upon the disestablishment of the church of Ireland, Walsh became an active member


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38 Poor old Higgins! Pausing for wind in the dusty field in a sweltering mid-afternoon, with a hoe, or other handy implement—or a piece of "roddin'" of suitable length, at the Winders—one end planted between his hob-nailed boots, and his hands resting on or grasping the other end—and his frilled chin on the uppermost hand—he formed an eloquent triangle of life, that only needed the last life blow to knock sideways, backways, frontways, or anyways, and have it over.

Who would he be but "Old Tryangles" in the Bush?

The village had its stale mysteries—two of them. When the old cottage had been some time empty, on account of the Higginses being unable to pay the rent charged for the home of their ancestors, there came an unknown but respectable looking woman in black to Leonard, who said she was an invalid with an only daughter, and needed country air, and she persuaded Leonard to let her have the place at the ordinary rental. By and by a man came round, a short stout man, like a cross between an old Maori chief and an English labourer. Leonard spoke to her about it, and she said he was her husband. He became the village and roundabouts house-painter. They had lots of books, bound volumes of old magazines, London journals, etc., that looked as if they had belonged to a library. I talked to the girl, who seemed peculiar, and was a bit deaf, and we exchanged books. They were from Hindia, she said. She told me some of her history, and wrote the rest. It seemed she was en-

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United States Code/Title 42/Chapter 85/Section 7502

§ 7502. Nonattainment plan provisions in general CAA § 172

(1) Classifications

 * (A) On or after the date the Administrator promulgates the designation of an area as a nonattainment area pursuant to section 7407 (d) of this title with respect to any national ambient air quality standard (or any revised standard, including a revision of any standard in effect on November 15, 1990), the Administrator may classify the area for the purpose of applying an attainment date pursuant to paragraph (2), and for other purposes. In determining the appropriate classification, if any, for a nonattainment area, the Administrator may consider such factors as the severity of nonattainment in such area and the availability and feasibility of the pollution control measures that the Administrator believes may be necessary to provide for attainment of such standard in such area.
 * (B) The Administrator shall publish a notice in the Federal Register announcing each classification under subparagraph (A), except the Administrator shall provide an opportunity for at least 30 days for written comment. Such classification shall not be subject to the provisions of sections 553 through 557 of title 5 (concerning notice and comment) and shall not be subject to judicial review until the Administrator takes final action under subsection (k) or (l) of section 7410 of this title (concerning action on plan submissions) or section 7509 of this title (concerning sanctions) with respect to any plan submissions required by virtue of such classification.
 * (C) This paragraph shall not apply with respect to nonattainment areas for which classifications are specifically provided under other provisions of this part.

(2) Attainment dates for nonattainment areas

 * (A) The attainment date for an area designated nonattainment with respect to a national primary ambient air quality standard shall be the date by which attainment can be achieved as expeditiously as practicable, but no later than 5 years from the date such area was designated nonattainment under section 7407 (d) of this title, except that the Administrator may extend the attainment date to the extent the Administrator determines appropriate, for a period no greater than 10 years from the date of designation as nonattainment, considering the severity of nonattainment and the availability and feasibility of pollution control measures.
 * (B) The attainment date for an area designated nonattainment with respect to a secondary national ambient air quality standard shall be the date by which attainment can be achieved as expeditiously as practicable after the date such area was designated nonattainment under section 7407 (d) of this title.
 * (C) Upon application by any State, the Administrator may extend for 1 additional year (hereinafter referred to as the “Extension Year”) the attainment date determined by the Administrator under subparagraph (A) or (B) if—
 * (i) the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan, and
 * (ii) in accordance with guidance published by the Administrator, no more than a minimal number of exceedances of the relevant national ambient air quality standard has occurred in the area in the year preceding the Extension Year.
 * No more than 2 one-year extensions may be issued under this subparagraph for a single nonattainment area.
 * (D) This paragraph shall not apply with respect to nonattainment areas for which attainment dates are specifically provided under other provisions of this part.

(b) Schedule for plan submissions
At the time the Administrator promulgates the designation of an area as nonattainment with respect to a national ambient air quality standard under section 7407 (d) of this title, the Administrator shall establish a schedule according to which the State containing such area shall submit a plan or plan revision (including the plan items) meeting the applicable requirements of subsection (c) of this section and section 7410 (a)(2) of this title. Such schedule shall at a minimum, include a date or dates, extending no later than 3 years from the date of the nonattainment designation, for the submission of a plan or plan revision (including the plan items) meeting the applicable requirements of subsection (c) of this section and section 7410 (a)(2) of this title.

(c) Nonattainment plan provisions
The plan provisions (including plan items) required to be submitted under this part shall comply with each of the following:

(1) In general

 * Such plan provisions shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards.

(2) RFP

 * Such plan provisions shall require reasonable further progress.

(3) Inventory

 * Such plan provisions shall include a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in such area, including such periodic revisions as the Administrator may determine necessary to assure that the requirements of this part are met.

(4) Identification and quantification

 * Such plan provisions shall expressly identify and quantify the emissions, if any, of any such pollutant or pollutants which will be allowed, in accordance with section 7503 (a)(1)(B) of this title, from the construction and operation of major new or modified stationary sources in each such area. The plan shall demonstrate to the satisfaction of the Administrator that the emissions quantified for this purpose will be consistent with the achievement of reasonable further progress and will not interfere with attainment of the applicable national ambient air quality standard by the applicable attainment date.

(5) Permits for new and modified major stationary sources

 * Such plan provisions shall require permits for the construction and operation of new or modified major stationary sources anywhere in the nonattainment area, in accordance with section 7503 of this title.

(6) Other measures

 * Such plan provisions shall include enforceable emission limitations, and such other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment date specified in this part.

(7) Compliance with section 7410 (a)(2)

 * Such plan provisions shall also meet the applicable provisions of section 7410 (a)(2) of this title.

(8) Equivalent techniques

 * Upon application by any State, the Administrator may allow the use of equivalent modeling, emission inventory, and planning procedures, unless the Administrator determines that the proposed techniques are, in the aggregate, less effective than the methods specified by the Administrator.

(9) Contingency measures

 * Such plan shall provide for the implementation of specific measures to be undertaken if the area fails to make reasonable further progress, or to attain the national primary ambient air quality standard by the attainment date applicable under this part. Such measures shall be included in the plan revision as contingency measures to take effect in any such case without further action by the State or the Administrator.

(d) Plan revisions required in response to finding of plan inadequacy
Any plan revision for a nonattainment area which is required to be submitted in response to a finding by the Administrator pursuant to section 7410 (k)(5) of this title (relating to calls for plan revisions) must correct the plan deficiency (or deficiencies) specified by the Administrator and meet all other applicable plan requirements of section 7410 of this title and this part. The Administrator may reasonably adjust the dates otherwise applicable under such requirements to such revision (except for attainment dates that have not yet elapsed), to the extent necessary to achieve a consistent application of such requirements. In order to facilitate submittal by the States of adequate and approvable plans consistent with the applicable requirements of this chapter, the Administrator shall, as appropriate and from time to time, issue written guidelines, interpretations, and information to the States which shall be available to the public, taking into consideration any such guidelines, interpretations, or information provided before November 15, 1990.

(e) Future modification of standard
If the Administrator relaxes a national primary ambient air quality standard after November 15, 1990, the Administrator shall, within 12 months after the relaxation, promulgate requirements applicable to all areas which have not attained that standard as of the date of such relaxation. Such requirements shall provide for controls which are not less stringent than the controls applicable to areas designated nonattainment before such relaxation.


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Rh titled to estates in Scotland from a dead uncle, but there had been a lot of trouble, and she had lost them but there was a big law-suit coming on between her lawyers and the others. The painter and his wife were faithful old servants of her uncle's estates, who had thrown in their lot with her, and were sticking to her. Her poor faithful servants! she hoped to reward them in the near future. She was hengaged to a hofficer in Hindia, but had given him up when she came home and found she'd been robbed of her fortune. He wrote frantic letters, but she had made up her mind for his sake, and he would never find her, not until she came into her hown. If never, then never.

She was a curious lunatic, but hardly to be wondered at, being the only girl in that village, alone and apart, with some common mystery or disgrace over her, and some tons of London Journal literature. He might have been a librarian, book-worm, book-dealer, thief, receiver of stolen property, fugitive from India—or anything.

She went to Shepperton three nights a week with an old fiddle case (which she called her violin), and—and came back again; as thousands of sane girls do from other towns. She said she was taking lessons—as thousands of other girls do.

The other mystery was a Scotchman, who lived alone in a barred and barricaded house, that looked as if it had been built for a bakery (I don't know why I thought so), along about the middle of the big cabbage field, and kept about twenty extremely optimistic and friendly dogs. Some said he had to keep


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 of the provisional convention for settling the new constitution of the church. He died at Paris, after a very brief illness, on 20 Oct. 1869. He married, 1 Oct. 1841, Blair Belinda, daughter of Captain Gordon MacNeill, 77th regiment; he left five sons and one daughter. A portrait by Catterson Smith belongs to his eldest son, Canon Robert Walsh, D.D., rector of Donnybrook, co. Dublin.

Walsh will be best remembered as the author of a little book published anonymously in 1847, called ‘Ireland Sixty Years Ago,’ in which he drew a vivid picture of life and manners in the Ireland of the Grattan parliament. For the material for this work Walsh was much indebted to his father.

[Irish Law Times, iii. 652; private information.]

WALSH, JOHN HENRY (1810–1888), writer on sport under the pseudonym of, son of Benjamin Walsh, was born at Hackney, London, on 21 Oct. 1810, and educated at a private school. In 1832 he passed as a member of the Royal College of Surgeons, and became a fellow of the college by examination in 1844. For some time he was surgeon to the Ophthalmic Institution, and lectured on surgery and descriptive anatomy at the Aldersgate school of medicine. For several years he was in practice at Worcester, but left that city for London in 1852. He always had an intense love of sport, he rode well to hounds, kept greyhounds and entered them at coursing meetings, broke his own pointers and setters, and, what is far less common, also trained hawks. In the management of dogs he became an especial adept, and few veterinary practitioners could compare with him in the treatment of dogs' diseases. He was also fond of shooting, and, owing to the bursting of his gun, lost a portion of his left hand.

In 1853, under the pseudonym of ‘Stonehenge,’ he brought out his work on ‘The Greyhound, on the Art of Breeding, Rearing, and Training Greyhounds for public Running, their Diseases and Treatment’ (3rd ed. 1875). This treatise was based on articles he had written in ‘Bell's Life,’ and, it remains the standard text-book on the subject. Three years later, in 1856, appeared ‘Manual of British Rural Sports,’ which treats on the whole cycle of sports, and, among other things, deals with the breeding of horses in a scientific manner. Sixteen editions of this work were published up to 1886, in the later editions articles on special subjects being furnished by other writers. In 1856 he originated the ‘Coursing Calendar,’ and conducted it through fifty half-yearly volumes. About 1856 he became connected with the ‘Field,’ and at the end of 1857 accepted the editorship. He brought out ‘The Shot-Gun and Sporting Rifle, and the Dogs, Ponies, Ferrets, &c., used with them in Shooting and Trapping,’ in 1859; ‘The Dog in Health and Disease,’ 1859 (4th ed. 1887); ‘The Horse in the Stable and in the Field,’ in 1861 (13th ed. 1890); and ‘The Dogs of the British Islands’ in 1867 (3rd ed. 1886). In the two books last mentioned he also had the assistance of other writers. In 1882–4 the ‘Modern Sportsman's Gun and Rifle’ appeared, vol. i. being devoted to shot-guns, while vol. ii. treated of rifles.

His activity in conducting the ‘Field,’ with the aid of many able coadjutors, was remarkable. He soon instituted the first ‘Field’ trial of guns and rifles, which was carried out in April 1858 in the Ashburnham grounds at Chelsea adjacent to the famous Cremorne Gardens. This trial wound up the controversy as to the merits of breech-loaders and muzzle-loaders, but before the final decisions two other trials were made, one at the old Hornsey Wood Tavern in July 1859, and the third at the Lillie Arms, Brompton, in 1866. In 1875 the value of the choke-bore system received further elucidation in another trial in the All England Croquet Club grounds at Wimbledon, of which club Walsh was an active promoter. The trial extended over six weeks, the whole proceedings being carried out under the editor's personal supervision. Again, in 1878, he endeavoured to make clear what were the respective merits of Schultze and black powder, when, besides conducting the actual competition, he himself carried out numerous experiments. One of the consequences was that light pressure with Schultze was found to produce better shooting than tight ramming, while tight wads to prevent the escape of gas and the general system known as the ‘Field’ loading also resulted. Other experiments led to his invention of the ‘Field’ force gauge, which gave results more reliable than the paper pads previously in use. In 1879 another gun trial was carried out to determine the merits of 12-bores, 16-bores, and 20-bores. In 1883 he instituted the rifle trial at Putney to demonstrate the accuracy of shooting of Express rifles at the target, and to ascertain by measurement the height of the trajectives of weapons differing in bores and in the charges used therein. Subsequently Walsh organised trials to ascertain the cause of so many breakages in guns, the testing of


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 powders by the lead cylinder method, the various effects of nitro compounds, and the strain on the barrels of small bores. His comments on proof powder in the ‘Field,’ when he stated that the powder used in testing gun-barrels was fifty per cent. below the proof required, led to an action, the Birmingham Proof-house Guardians v. Walsh, in which, on technical grounds, a verdict was given against him of forty shillings damages (Times, 3 July, 10 Aug. 1885). As soon as the trial was over he approached the guardians with proposals for providing security for sportsmen, and ultimately succeeded in obtaining some useful changes.

Walsh was one of the founders of the National Coursing Club and of the All England Lawn Tennis Club. He had a good deal to do with the early dog shows and field trials, and was on the committee of the Kennel Club. He was a good chess player, and on the managing committees of several clubs.

He died at 43 Montserrat Road, Putney, Surrey, on 12 Feb. 1888, and was buried on 16 Feb. in the old cemetery at Putney Common. He married, first, in August 1833, Margaret, daughter of Thomas Stevenson of Claines, Worcestershire, who died nine months later; secondly, in 1835, Susan Emily, daughter of Dr. Malden of Worcester, who died eight months later; and, thirdly, in 1852 Louisa, eldest daughter of the Rev. William Parker, who survived her husband. He left two daughters.

In addition to the books already mentioned he wrote: He edited ‘The English Cookery Book, containing many unpublished receipts in daily use by Private Families, collected by a Committee of Ladies,’ 1858; the second edition was entitled ‘The British Cookery Book,’ 1883. With William Harcourt Ranking he edited ‘The Provincial Medical and Surgical Journal,’ 1849–52; with John George Wood ‘Archery, Fencing, and Broadsword,’ 1863, and ‘Athletic Sports and Manly Exercises,’ 1864.
 * 1) ‘The Economical Housewife, being Practical Advice for Brewing … to which are added Directions for the Management of the Dairy,’ 1857.
 * 2) ‘A Manual of Domestic Economy suited to Families spending from 100l. to 1,000l. a year,’ 1857, 4th edit. 1890.
 * 3) ‘A Manual of Domestic Medicine  and Surgery,’ 1858.
 * 4) ‘Riding and Driving,’ 1863.
 * 5) ‘Pedestrianism, Health and General Training,’ 1866.
 * 6) ‘The Modern Sportsman's Gun and Rifle, including Game and Wild Fowl Guns, Sporting and Match Rifles and Revolvers,’ 1882–4, 2 vols.
 * 7) ‘A Table of Calculations for use with the Field Force Gauge for Testing Shot Guns,’ 1882.

WALSH, NICHOLAS (d. 1585), bishop of Ossory, born at Waterford, was son of Patrick Walsh, bishop of Waterford and Lismore in 1551, who died in 1578 (, Fasti, i. 123, 138;, Athenæ Oxon. ii. 815; , Alumni Oxon. 1500–1714). He studied at Paris, Oxford, and Cambridge, and in 1562–3 he was granted his B.A. by the senate at Cambridge on the ground of having kept twelve terms at these universities. He commenced M.A. in 1567, and in 1571 was chancellor of St. Patrick's, Dublin, and in 1573 began to translate the New Testament into Irish with [q. v.] The edition was published in 1603. In February 1577 Walsh was consecrated bishop of Ossory, but continued his translation with Fearganainm O'Domhnallain of Catharine Hall. On 14 Dec. 1585 Walsh was stabbed with a skeine by James Dallard, whom he had cited for adultery. Dallard was hanged, and his victim buried in St. Canice's Cathedral, Kilkenny, where his tomb, bearing an interlaced cross and an inscription, is still to be seen.

WALSH, PETER (1618?–1688), Irish Franciscan, whose name is latinised as Valesius, was born about 1618 at Mooretown, co. Kildare. His father is nowhere mentioned, but the Mooretown family were among the ‘principal men’ of the county (Description of Ireland in 1598, ed. Hogan, p. 48). His mother was perhaps a protestant (Contemp. Hist. of Affairs, i. 238). Walsh was educated at Louvain, where he was on friendly terms with [q. v.] He became a Franciscan and reader in divinity there, but returned to Ireland, to the convent of Kilkenny, in 1646. From the first he joined the party opposed to the nuncio [q. v.] He was one of the theologians who met at Waterford ‘to examine the concessions and conditions granted by the Marquis of Ormonde for the security of the catholic church and religion,’ but was evidently no party to the professedly unanimous decree of 12 Aug., which declared perjured all who adhered to the peace with


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Environmental Defense Fund v. Thomas

Appeal from a decision of the United States District Court for the Southern District of New York (David N. Edelstein, Judge), holding that Section 304 of the Clean Air Act did not confer jurisdiction on the district court to order the Administrator of the Environmental Protection Agency to revise federal standards for the presence in the ambient air of certain pollutants. We hold that the district court does have jurisdiction but believe subsequent actions of the Administrator have begun the required rulemaking.

Reversed and remanded. Judge Mahoney dissents in a separate opinion.

David R. Wooley, Assistant Attorney General, State of New York (Robert Abrams, Attorney General of the State of New York, Peter R. Schiff, Assistant Attorney General of New York, of Counsel), James T. B. Tripp, Environmental Defense Fund, New York, New York (Robert E. Yuhnke, Environmental Defense Fund, Boulder, Colorado, of Counsel), David Hawkins, Natural Resources Defense Council, Washington, District of Columbia, Howard Fox, Sierra Club Legal Defense Fund, Washington, District of Columbia, Hubert H. Humphrey III, Attorney General of the State of Minnesota (Ann Seha, Special Assistant Attorney General, State of Minnesota, of Counsel), Jeffrey L. Amestoy, Attorney General of the State of Vermont (J. Wallace Malley, Jr., Assistant Attorney General, State of Vermont, of Counsel), Joseph I. Lieberman, Attorney General of the State of Connecticut (Brian Comerford, Assistant Attorney General, State of Connecticut, of Counsel), Stephen Merrill, Attorney General of the State of New Hampshire, (George Dana Bisbee, Assistant Attorney General, State of New Hampshire, of Counsel), James M. Shannon, Attorney General of the Commonwealth of Massachusetts (Lee Breckenridge, Assistant Attorney General, Commonwealth of Massachusetts, of Counsel), for Plaintiffs-Appellants.

Jacques B. Gelin, Department of Justice, Washington, District of Columbia (Myles E. Flint, Deputy Assistant Attorney General, Michael A. McCord, Robert L. Klarquist, Department of Justice, Gerald K. Gleason, U.S. Environmental Protection Agency, Washington, District of Columbia, of Counsel), for Defendants-Appellees.

Henry V. Nickel, Washington, District of Columbia (Michael L. Teague, F. William Brownell, Norman W. Fichthorn, Hunton & Williams, Washington, District of Columbia, Alfred V.J. Prather, Edwin H. Seeger, Kurt E. Blase, Prather Seeger Doolittle & Farmer, Washington, District of Columbia, Michael S. Devorkin, John Jacob Rieck, Jr., Doar Devorkin & Rieck, New York, New York, Vincent R. Fitz-Patrick, Jr., Margaret Murphy, White & Case, New York, New York, Nancy C. Shea, James R. Bieke, Bruce C. Swartz, Shea & Gardner, Washington, District of Columbia, of Counsel), for Intervenors-Appellees.

Van Graafeiland, Winter and Mahoney, Circuit Judges. Mahoney, Circuit Judge, dissenting.

title: Environmental Defense Fund v. Thomas


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 Ormonde proclaimed on 30 July. Excommunication followed on 1 Sept. (Confederation and War, vi. 69, 131). A few days later the supreme council of the confederates were in prison and the clergy dominant at Kilkenny (, p. 204). Walsh claims to have ‘saved both mayor and aldermen from being hanged, and the city from being plundered by Owen O'Neill’ (Hist. of Remonstrance, p. 587; Confederation and War, vi. 24, 296). In 1647 he attacked in nine consecutive sermons the ‘Disputatio Apologetica’ of Cornelius Mahony [q. v.], in which the right of the kings of England to Ireland was denied.

In revenge for this conduct Walsh was deprived of the lectureship in divinity to which he had been appointed at Kilkenny; he was driven from the house, and even forbidden to enter any town which possessed a library; while Rinuccini accused him of having infected the nobility of Ireland and destroyed the cause (Remonstrance, p. 587). Having the support of the supreme council, however, and of the aged bishop David Roth [q. v.], Walsh stood his ground and continued to preach and write. Rinuccini afterwards described him as ‘turned out of his convent for disobedience to superiors, a sacrilegious profaner of the pulpit in Kilkenny Cathedral, who vomited forth in one hour more filth (sordes) and blasphemy than Luther and Calvin together in three years’ (Spicilegium Ossoriense, iii. 72).

On 20 May 1648 the supreme council agreed to a cessation of arms with Inchiquin. Rinuccini excommunicated all adherents of the truce, and laid an interdict on all the communities, whether of cities, towns, villages, or hamlets, who accepted it (Confederation and War, vi. 240). The supreme council, of whose party Walsh was now the soul, repudiated Rinuccini and appealed to Rome (ib. p. 243). During June an oath to maintain their authority, notwithstanding Rinuccini's censures, was prescribed by the council, and taken by ten peers and many other men of influence (Remonstrance, App. p. 33). The Franciscans, however, closed their church in obedience to Rinuccini's interdict, and in July the council arrested Paul King [q. v.], and made Walsh guardian in his stead. King retaliated by helping to bring O'Neill's army to Kilkenny after Rinuccini's final departure; and the queries addressed to Roth as to the validity of the nuncio's censures, and the answers of Roth and of his council of sixteen theologians, were both penned by Walsh while the tents of the Ulster army were visible from the walls. This was Walsh's first published work, and the whole of it was reprinted by him in 1674 with his history of the ‘Remonstrance.’ Thomas Dease, bishop of Meath, was the only bishop who formally adhered to the opinion of Roth and Walsh; but they had a very respectable minority among the clergy on their side, including most of the jesuits, who were nearly all of Anglo-Irish blood. About this time Walsh, at the request of the society, delivered a panegyric on St. Ignatius in their chapel at Kilkenny (Remonstrance, p. 88). Among the gentry also, especially the lawyers, Walsh's party had a large majority.

Ormonde returned to Ireland at Michaelmas 1648, and soon went to Kilkenny, where Walsh met him for the first time (Dedication to Four Letters). The peace with the confederates was settled and approved by nine bishops on 17 Jan. 1648–9, and the defeated nuncio left Ireland. In June a quarrel among the Franciscans at Kilkenny compelled Walsh to take refuge in an old castle, where he remained until rescued by Castlehaven (Contemporary Hist. ii. 31;, p. 77; Remonstrance, p. 587).

After Cromwell had taken Kilkenny in March, Walsh became a wanderer, and the clerical party persecuted him to the utmost ‘wherever he sheltered himself from the common enemy, the parliament's forces’ (ib. p. 585). Castlehaven, however, who commanded the Munster army, made Walsh his chaplain. At Limerick soon afterwards Terence Albert O'Brien [q. v.], bishop of Emly, threatened to seduce Castlehaven's troops unless he would part with Walsh.

When Castlehaven sailed for France in the autumn of 1651, Walsh was without a protector, and hid himself miserably wherever he could. The parliamentary commissioners in Dublin gave him a passport in September 1652, and he went to London, where his presence was winked at (Contemporary Hist. p. 591). In September 1654 he went voluntarily to Madrid, where the dominant party in his own order imprisoned him for over two months (ib. p. 589). Being suffered to go to Holland, he found his friends there unable to protect him against persecutions originating at Rome, nor was he allowed to return to Ireland during the protectorate on account of his obstinate royalism. Till the eve of the Restoration he was forced to ‘shift and lurk in England the best way I could, having but once in that interim gone to Paris for a month, not daring then to stay not even there any longer’ (ib. p. 590). One of his London lurking-places was the Portuguese embassy (ib. p. 43).

In October 1660 Walsh addressed a letter to Ormonde in favour of fair dealing with


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 the Irish Roman catholics, and exhorted him to maintain the natural supporters of royalty against presbyterians, anabaptists, quakers, independents, and fifth-monarchy men. This letter was published after a time, and drew forth a witty and vigorous but intemperate answer from Orrery, who said Irish royalism was for the pope and not for the king. In 1662 Orrery's pamphlet, ‘Irish Colours Displayed,’ was answered by Walsh in ‘Irish Colours Folded.’ Walsh does not deny the massacre of 1641, but objects to confounding the innocent with the guilty, and to the enormous exaggeration in the number of victims. He lays great stress here, as in all his writings, on the difference between Celts and Anglo-Irish.

In the winter of 1660 Walsh, writing from London, urged the clergy of his church in Ireland to make a loyal address to the king, and so efface the bad impression left by their share in the rebellion of 1641, and by their opposition to Ormonde during the civil war. There were then but three Roman catholic bishops in Ireland—Edmund O'Reilly [q. v.], the primate; Anthony MacGeohegan of Meath, a Franciscan, and one of Walsh's strongest opponents; and Swiney of Kilmore, who was bedridden and inaccessible. O'Reilly drew up a procuration or power of attorney of the amplest kind for Walsh, as their agent-general. He was to plead the cause of his church with the king, and at least to procure the terms agreed on in 1648 between Ormonde and the confederates, but which a clerical majority had rejected and denounced. This instrument, dated 1 Jan. 1660–1, was signed by MacGeohegan and by several representative seculars and regulars. The bishops of Dromore and Ardagh subscribed it at sight, and even Nicholas French [q. v.], bishop of Ferns, authorised a commissary to sign for him. The paper was at once transmitted to Walsh, who showed it to Ormonde, and the latter blamed him for undertaking the business of men who had been so hostile to the royal authority in Ireland. Yet Walsh had his help in mitigating the extreme oppression which Roman catholic priests in Ireland had lately suffered. About 120 were in prison, who, Walsh says, were all released by his means, without distinction of party. He even refused to accept terms for the anti-nuncionists only. On 4 Nov. 1661 Ormonde became lord-lieutenant, and a little later Walsh presented to him the loyal remonstrance drawn up by Richard Bellings [q. v.] on behalf of a few priests and gentlemen who met in Dublin. Ormonde said that it might be useful, though not fully satisfactory, but that without signatures it was waste-paper. Walsh pointed out the difficulties of his coreligionists, especially of those in orders, who dared not hold even secret meetings. About thirty were got together in London, of whom four or five excused themselves on grounds of expediency only; but Oliver Darcy, bishop of Dromore, and twenty-three others, of whom fifteen were Franciscans, subscribed the remonstrance then and there. Walsh signed last as procurator of all the Irish clergy, but without claiming special authority in the case. The total number of subscribers was afterwards stated by Walsh to have been seventy clergymen, of whom fifty-four were regulars and chiefly Franciscans, and 164 laymen (Four Letters, p. 3). Some Irish bishops abroad assented, but ultramontane influences were soon at work. ‘We openly disclaim and renounce all foreign power, be it either papal or princely, spiritual or temporal,’ interfering with the remonstrants' allegiance, were not words likely to pass unchallenged. Much of the opposition to the remonstrance turned upon its similitude to James I's oath of allegiance, which had received papal condemnation.

The Irish Dominicans, perhaps influenced by their old rivalry with the Franciscans, adopted a much weaker declaration of their own. The jesuits, though they had generally opposed Rinuccini, also objected. Letters describing Walsh's remonstrance as ‘most pernicious and temerarious’ were received from the internuncio at Brussels and from Francesco Barberini, cardinal protector of the Franciscans at Rome (Remonstrance, pp. 52, 514). In the summer of 1662 Walsh published ‘The more ample Account’ of the remonstrance, with a dedication to the Roman catholic hierarchy of Great Britain and Ireland. Caron and Philip Roche, under commission from Nicholas a Sancta Cruce, provincial of the English Franciscans, certified that the treatise was theologically sound, containing nothing ‘against the revealed doctrine of catholic faith’ or against Christian life, but making much for both.

Walsh went to Ireland in August 1662, after Ormonde had been installed as viceroy. He lived in Dublin in Kennedy's Court, near Christchurch, and his enemy, Peter Talbot [q. v.], accused him of dressing more gaily than became a friar, and of singing and dancing (, Hist. of Dublin, i. 196). He made but little progress with the remonstrance, for the theological faculty at Louvain was against him, and the clergy living abroad were loth to give offence at Rome. They


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 ICARAGUA is a very rich field for research to the student of American Archaeology, and so I found it during my two years stay in Central America. I had there the good fortune several times to meet with localities more or less rich in remains from the prehistoric or rather pre-spanish period. Not very much being known about Central American antiquities, and the literature on this subject being very poor, especially with regard to the Nicaraguan ones, I purpose here to describe briefly and to figure the more important statues, rock carvings, ceramic objects etc., found by me in Nicaragua and partly delineated or photographed on the spot, partly brought home to Sweden. Unfortunately I wanted the means of carrying home any of the statues; but my Nicaraguan collections contain a number of more easily transportable relics, mostly examples of pottery. These are now deposited in the ethnographic collection of the R. Swedish State Museum. The accompanying plates are all executed after my original sketches or photographs taken on the spot. Most of the statues have never before been figured or described; some of them are mentioned and figured by in his splendid work on Nicaragua. As it turned out, however, on comparisons being made by me on the


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spot, that some of Squier's figures do not quite agree with the originals, I have thought fit to publish also my own drawings of these previously figured statues, 6 in number.

Although this sketch is certainly not the place for an account of the history of Central America or Nicaragua, yet I may be permitted to give a brief statement of those few and disconnected notices that we possess with regard to the nations inhabiting Nicaragua at that period, when the antiquities here spoken of were probably executed. The sources of our knowledge of these people and their culture are, besides the above quoted work of, the old Spanish chroniclers, , and , the memoirs of and , the relation of , and scattered notices in the works of  a. o.

At the time of the Spanish invasion under the command of in the years 1521 and 1522, the region now occupied by the republic of Nicaragua and the north-eastern part of the republic of Costa Rica, was inhabited by Indian nations of four different stocks, which very probably may be considered as being of different origin and having immigrated into the country at widely separated periods.

The Atlantic coast with its luxuriant vegetation but damp climate and the adjacent mountainous country with its vast primeval forests were the home of more or less nomadic tribes, remaining at a low stage of civilization. It may be inferred, however, from certain indications in the account of the third voyage of Columbus, and from the scanty notices of several of the so-called buccaneers or filibusters, that those Indians were more advanced in culture and manner of life than the hordes, that may be regarded as their


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 might not be tolerated in Ireland in any case, and might easily lose their refuges and their chances of preferment elsewhere. Even among the Franciscans in Ireland a majority soon appeared hostile (Remonstrance, p. 89) and some who had signed the remonstrance receded from their position (ib. p. 93). Many of the nobility and gentry signed the remonstrance, and educated lay opinion was certainly in its favour (ib. pp. 96–100); but in Ireland the clergy have generally had their way, and it became evident before the end of 1664 that Walsh's scheme had failed. He went to London in August, and in September had an interview, in the ‘back-yard at Somerset House,’ with the internuncio, who had come over incognito. The interview settled nothing, and in the following January De Vechiis invited Caron to go and argue the point in Flanders, describing the remonstrance as ‘formula quæ est lapis scandali’ (ib. p. 531). Caron at once refused to go, and Walsh, after much hesitation, decided that the fate of Huss might probably be his, and wrote two long letters instead. In June the Franciscan diffinitory in Ireland agreed upon a loyal remonstrance of their own, but Walsh would not allow it to be substituted for his; and Ormonde saw that it did not mention the pope, that it said nothing about mental reservation, and that the right of deposition was not expressly disclaimed. In September 1665 he and Walsh returned to Ireland, but by separate routes. Ormonde brought over the Act of Explanation with him, and the despair engendered by that measure among the old Roman catholic proprietors made accommodation with them or with their clergy more difficult than ever. The government had no longer anything to give.

Little progress had been made with the remonstrance, but Walsh thought something might be done in a national congregation of clergy. Some of the bishops beyond seas seemed anxious to get home on any reasonable terms, while those who hung back in Ireland would have no excuse. Walsh also imagined that his pamphlet against Orrery had made him more popular than before. The argument which no doubt chiefly weighed with Ormonde was that the clergy had alleged their inability to sign the remonstrance because they had not had opportunities of conferring. Permission to return home was given to Irish prelates abroad, and among others to Nicholas French, bishop of Ferns. French had agreed to the peace of 1648, but had nevertheless been a party to the decrees of Jamestown two years later, by which all Ormonde's adherents were declared excommunicate. He now moved from Santiago in Galicia to St. Sebastian; but having written a letter justifying his conduct at Jamestown, his passport for Ireland was countermanded. Walsh and French respected but could not convince each other (ib. pp. 513–25). Strenuous efforts to prevent the congregation were made by foreign ecclesiastics (ib. p. 629), but it met in Dublin on 11 June in a house hired and prepared by Walsh. Immediately before the opening he brought the only two bishops present, Andrew Lynch of Kilfenora, and Patrick Plunket of Ardagh, to Ormonde by night, but the interview was unsatisfactory. The next evening primate O'Reilly, who had just landed, produced letters from Giacomo Rospigliosi, now internuncio at Brussels, condemning both congregation and remonstrance (ib. p. 647). O'Reilly admitted to Walsh that he came from France on purpose to wreck the remonstrance, and declared in the congregation that he would have both hands consumed rather than sign it (Spicilegium Ossoriense, i. 446). Ormonde urged the clergy to adopt both the remonstrance and the Gallican declarations of the Sorbonne in 1663, but the message was neither debated nor answered. O'Reilly had a fruitless interview with Ormonde, only Walsh and Bellings being present, when the latter declared that maintainers of papal infallibility could not be loyal subjects (ib. p. 447). In the end a new and much weaker remonstrance was carried, as well as three out of the six Sorbonne propositions; but the congregation rejected those which denied the pope's right to depose bishops, his superiority to an œcumenical council, and his infallibility without consent of the church. Ormonde refused to accept these terms, and directed a dissolution, which was quietly, and as it were spontaneously, carried out. Ormonde afterwards said that his own aim in allowing the congregation was to divide the Roman catholic clergy, and that he would have succeeded if he had been left in the government (, ii. 101).

While Ormonde remained lord-lieutenant, however, Walsh had influence in Ireland, and for a moment seemed to have countenance at Rome. The Franciscan James Taafe arrived at Dublin in 1668 with a commission as vicar-general of Ireland, which he said had been procured for him by Henrietta Maria from two popes. The commission was doubtless spurious, whether forged by Taafe or another, but the proceedings under it added to the load of unpopularity which Walsh had to bear. Taafe's brief authority was used to depress all except the few who had signed the remonstrance. In March


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Environmental Defense Fund v. Thomas/Opinion of the Court

[p894] WINTER, Circuit Judge

This appeal involves the Clean Air Act, 42 U.S.C. §§ 7401 et seq. (1982 and Supp. IV 1986) ("the Act"), and in particular its bifurcated jurisdictional scheme for judicial review of decisionmaking by the Environmental Protection Agency ("EPA"). The Act provides that suits to compel the Administrator to perform non-discretionary duties may be brought only in district courts, while petitions seeking review of the Administrator's discretionary actions must be brought in the Court of Appeals for the District of Columbia. See, e.g., Citizens for a Better Env't v. Costle, 515 F. Supp. 264, 268 (N.D. Ill. 1981). Jurisdiction under the Act thus turns on the threshold question of whether the Administrator's challenged action (or inaction) is discretionary or non-discretionary.

In the instant appeal, a number of environmentalist groups, along with six states, have challenged the Administrator's failure to revise the "National Ambient Air Quality Standards" ("NAAQS") for sulphur oxides ("SOx"). SOx are causative agents of both acid rain and dry acid deposition -- phenomena we will refer to collectively as "acid deposition." Judge Edelstein held that the Administrator's authority to revise those NAAQS is discretionary and that the district court therefore did not have jurisdiction to entertain the suit. Environmental Defense Fund v. Thomas, 85 Civ. 9507 (S.D.N.Y. April 19, 1988). Although we agree that the Administrator has discretion to decide on the precise form and substance of the NAAQS at issue, we believe that under the circumstances the Administrator has a non-discretionary duty to make some formal decision whether to revise those NAAQS. Subsequent published actions by the Administrator have begun the process of decisionmaking, however, and we remand so the district court may enter an order that the rulemaking be continued to final decision.

BACKGROUND
The Clean Air Act was first passed in the 1960's and has since undergone two major legislative overhauls. The first of these overhauls, in 1970, established a multi-stage process for EPA evaluation of potential air pollutants. In the first stage, the EPA was, after scientific study, to publish "criteria" for the evaluation of any given potential pollutant. Section 108 of the Act, 42 U.S.C. § 7408 (1982). After the establishment of these "criteria," the EPA was to publish two types of initial NAAQS pursuant to Section 109 of the Act, 42 U.S.C. § 7409 (1982): (i) primary ambient air quality standards, designed to "protect the public health"; and (ii) secondary ambient air quality standards, designed to "protect the public welfare from any known or anticipated adverse effects associated with the presence of [a given] air pollutant in the ambient air." 42 U.S.C. § 7409(b).

The 1970 amendments distinguished between pollutants for which criteria had been announced before 1970 and pollutants for criteria were announced after 1970. In the case of pollutants for which criteria had been announced before 1970 (which included SOx), Sections 109(a)(1)(A) and (B) required the EPA to issue proposed initial primary and secondary NAAQS within 120 days of the passage of the 1970 amendments. In the case of pollutants for which criteria were announced after 1970, the amendments required the EPA to issue proposed initial primary and secondary NAAQS simultaneously with its publication of "criteria." The 1970 amendments added that both primary and secondary NAAQS "may be revised in the same manner as promulgated." 42 U.S.C. §§ 7409(b)(1) and (2).

The 1970 amendments also introduced into the statute a bifurcated jurisdictional scheme. In Section 307 of the Act, the 1970 amendments vested the Court of Appeals for the District of Columbia with exclusive jurisdiction to review a variety of rule promulgations and other "final actions" by the Administrator. 42 U.S.C. § 7607(b) (1982). In addition, Section 304 of the Act, the so-called "Citizen Suits" provision, permits any person to bring a civil action in a district court "against the Administrator where there is alleged a failure of the Administrator to perform any [p895]  act or duty under this chapter which is not discretionary with the Administrator. . . ." 42 U.S.C. § 7604(a)(2) (1982).

The second statutory overhaul occurred in 1977. These amendments added Section 109(d) concerning the "review and revision" of NAAQS, which provides that:

"not later than December 31, 1980, and at five-year intervals thereafter, the Administrator shall complete a thorough review of the criteria published under Section 108 . . . and promulgate such new standards as may be appropriate. . . . The Administrator may review and revise criteria or promulgate new standards earlier or more frequently than required under this paragraph."

42 U.S.C. § 7409(d) (1982). It is this section that plaintiffs seek to enforce by this action under Section 304.

The pollutants involved in this appeal, SOx, are causative or acid deposition and belong to the class of pollutants for which criteria had been issued before the 1970 amendments. In 1971, the Administrator promulgated primary and secondary NAAQS for SOx. 36 Fed. Reg. 8186. The secondary NAAQS were reviewed by the Court of Appeals for the District of Columbia and were thereafter remanded to the Administrator with instructions to elaborate on their justification. Kennecott Copper Corp. v. EPA, 149 U.S. App. D.C. 231, 462 F.2d 846 (D.C. Cir. 1972). On that remand, the Administrator modified the secondary NAAQS. 38 Fed. Reg. 25679 (1973). The secondary NAAQS as modified were not designed to protect against the deleterious effects of SOx associated with acid rain and dry acid deposition -- deleterious effects on water quality, wildlife, soils and forests, and corrosive effects of SOx on building materials, monuments and products. 38 Fed. Reg. 25680 (1973). Neither the primary SOx NAAQS as promulgated in 1971, nor the modified secondary SOx NAAQS of 1973, have been revised since.

In 1979, the Administrator undertook a review of the air quality criteria for SOx in response to the passage of Section 109(d)(1) in 1977. 44 Fed. Reg. 56731 col. 2 (1979). In 1982, that review resulted in the publication of new criteria both for SOx and for particulate matter, another pollutant, which includes forms of SOx, listed under Section 108. The new criteria described in some detail the ill effects associated with acid deposition. The Administrator did not, however, issue revised NAAQS for SOx. Indeed, the Administrator took no official public action, neither revising the existing standards nor formally declining to revise them. In 1984 and 1985, the EPA issued a three-volume "Critical Assessment" on the acid deposition effects of SOx. This did not constitute a formal revision of the SOx criteria, and the Administrator again took no action in conjunction with the issuance of this "Critical Assessment."

In 1985, appellants brought the instant case in the District Court for the Southern District of New York, pursuant to Section 304, the "Citizen Suits" provision of the Act, to compel the Administrator to promulgate revised NAAQS for SOx. Their complaint alleged that the revised criteria of 1982 and the "Critical Assessment" of 1984 and 1985 constituted a formal finding that SOx caused acid deposition threatening to the public health and welfare. Appellants claimed that those findings imposed on the Administrator a non-discretionary duty to revise the NAAQS for SOx, pursuant to Sections 109(b) and 109(d), in order to combat such health and welfare effects. Judge Edelstein disagreed. Looking to the language of Section 109(d), he concluded that the section created a mandatory duty only to revise pollutant criteria -- an action the Administrator had taken in 1982. The Administrator, he held, had discretion not to revise the SOx NAAQS if he so chose. Because the duty to revise the NAAQS was discretionary, he concluded that the district court lacked jurisdiction over the dispute and dismissed the complaint.

One week after Judge Edelstein's decision, the EPA issued a "Proposed Decision Not To Revise the National Ambient Air Quality Standards for Sulfur Oxides (Sulfur Dioxide)." 53 Fed. Reg. 14926 (April 26, 1988). In that "Proposed Decision," the Administrator announced that he was formally [p896]  "propos[ing] not to revise [the primary and secondary] standards" for sulfur oxides, 53 Fed. Reg. at 14926 col. 1, and invited comments. However, the Administrator expressly excluded the problem of acid deposition from the list of welfare effects for which no revision of the secondary SOx NAAQS was necessary:

1. Based upon the current scientific understanding of the acid deposition problem, it would be premature and unwise to prescribe any regulatory control program at this time. 2. When the fundamental scientific uncertainties have been reduced through ongoing research efforts, EPA will craft and support an appropriate set of control measures. Id. at 14936 col. 1. In light of this EPA action, appellants have narrowed their claim on appeal. Rather than challenging both the primary and secondary NAAQS, they abandoned the challenge to the primary NAAQS, which the Administrator has formally proposed not to revise in his "Proposed Decision," and limited their appeal to a challenge to the secondary NAAQS, the revision of which the Administrator has declared to be "premature and unwise."

DISCUSSION
Section 304 grants jurisdiction to district courts to compel the Administrator to perform non-discretionary statutory duties. ''Cf. Council of Commuter Org. v. Metropolitan Transp. Auth.,'' 683 F.2d 663, 665 (2d Cir. 1982). Section 307 grants exclusive jurisdiction to the Court of Appeals for the District of Columbia over "final" and other actions of the EPA. Because Section 307 embodies a grant of exclusive jurisdiction, it appears that if the District of Columbia has jurisdiction over the present action, the district court does not. ''New England Legal Found. v. Costle'', 666 F.2d 30, 33 (2d Cir. 1981). If the District of Columbia Circuit does not have jurisdiction, however, then either the district court has jurisdiction or appellants have no forum in which to assert their claims.

Appellants take the position that the district court has jurisdiction and must order the Administrator to revise the secondary NAAQS. Appellees argue that the Administrator may stand pat, deciding neither to revise the NAAQS nor to make a public decision that revision is unnecessary. In their view, such a non-decision is unreviewable by the Court of Appeals for the District of Columbia under Section 307 because it involves no decision or other agency "action" and is also invulnerable to challenge in district courts under Section 304 because it is discretionary. We disagree with both parties.

In view of the revised criteria and "Critical Assessment," we believe the Administrator must make some decision regarding the revision of the NAAQS that is thereafter reviewable under Section 307 in the Court of Appeals for the District of Columbia. Because the duty to make some decision is non-discretionary, it is enforceable under Section 304 in the district courts. Appellants argue that in the present case a revision is mandatory and should be ordered by the district court. The substance of the Administrator's decision is beyond the power of the district court, however, its authority being limited to ordering the Administrator to make a formal decision. Were we to order a revision, we would have to set out criteria governing that revision, and the district court would potentially have to apply those criteria in an enforcement proceeding. An order to revise would thus plunge the district court into the merits, matters that are the exclusive province of the District of Columbia Circuit. We appreciate that this distinction is somewhat artificial but believe it is necessary to confine the district court's authority and to defer to the authority of the District of Columbia Circuit. The April 26, 1988 "Proposed Decision Not To Revise," however, has begun the formal process of decisionmaking, and we remand for entry of an order directing that process to continue.

Our analysis begins with an examination of the jurisdiction of the Court of Appeals for the District of Columbia. In Oljato Chapter of Navajo Tribe v. Train, 169 U.S. App. D.C. 195, 515 F.2d 654 (D.C. Cir. 1975), that court held [p897]  that "a challenge to the Administrator's refusal to revise a standard of performance is in effect a challenge to the standard itself and so can be brought only in this court under Section 307(b)(1) of the Clean Air Act. . . ." Id. at 656. This language suggests that the District of Columbia Circuit has exclusive jurisdiction over the instant matter. The categorical language of Oljato is, however, misleading. Oljato involved Section 111 of the Act, which, at that time, included language permitting, but not requiring, the Administrator to revise the "standards of performance" for new stationary sources of air pollution. Because the statute included no stated deadlines for revision of the standards in question, the Oljato court could reasonably treat the decision to revise or not to revise as one wholly within the discretion of the Administrator. Since Oljato, however, the District of Columbia Circuit has distinguished between those revision provisions in the Act that include stated deadlines and those that do not, holding that revision provisions that do include stated deadlines should, as a rule, be construed as creating non-discretionary duties. Sierra Club v. Thomas, 264 U.S. App. D.C. 203, 828 F.2d 783, 791 (D.C. Cir. 1987). Section 109(d), the provision at issue here, includes a stated deadline of "not later than December 31, 1980, and at five-year intervals thereafter." Oljato thus does not apply.

The District of Columbia Circuit has also held that it may review agency inaction under the Administrative Procedure Act where the agency has unreasonably delayed in performing a duty over which the District of Columbia Circuit would have jurisdiction after final action under the Act. Sierra Club, 828 F.2d at 795-96. Thus, the District of Columbia Circuit arguably has jurisdiction on the grounds that the EPA has unreasonably delayed its decision whether or not to revise the secondary NAAQS for SOx. The District of Columbia Circuit was careful in Sierra Club, however, to limit its exclusive jurisdiction to cases involving "a right the denial of which we would have jurisdiction to review upon final agency action but the integrity of which might be irreversibly compromised by the time such review would occur." Id. at 796. Appellants' claimed right in the instant case is not one whose integrity is likely to be "irreversibly compromised." We therefore conclude that the instant action does not raise a claim within the exclusive grant of jurisdiction to the District of Columbia Circuit under Section 307. Our dissenting colleague argues that the District of Columbia Circuit has exclusive jurisdiction pursuant to the petitioning procedure outlined by way of dictum in Oljato Chapter of Navajo Tribe v. Train, 169 U.S. App. D.C. 195, 515 F.2d 654, 666 & 667 n.20 (D.C. Cir. 1975). We disagree. Because Oljato was decided before the enactment of Section 109(d), the Oljato court was interpreting a version of the Act that included no provision for the revision of NAAQS. The Oljato dictum was based on a Senate Report that, in proposing section 307, referred to "new information [which] will be developed and [which] may dictate a revision or modification of any promulgated standard or regulation established under the act." Oljato thus stated that suits involving such "new information . . . [which] may dictate a revision or modification" were subject to its exclusive jurisdiction. Oljato, 515 F.2d at 660-61 (quoting S. Rep. No. 91-1196, 91st Cong., 2d Sess. 41-42 (1970)). The Oljato court thus first determined that section 307 was the relevant jurisdictional provision, and then outlined a petitioning procedure for satisfying the requirements of that section. We, by contrast, have determined that section 304 is now the relevant statutory provision. The dictum in Oljato was made obsolete after the statutory overhaul that produced Section 109(d). Because the statute now expressly provides for the revision of standards, the problem of "new information . . . [which] may dictate a revision or modification" has now been addressed by Congress and the Act includes mandatory language that necessarily alters the jurisdictional scheme.

We also note here our disagreement with our colleague's reading of Sierra Club v. Thomas, 264 U.S. App. D.C. 203, 828 F.2d 783 (D.C. Cir. 1987). While it is true that Sierra Club states that "a duty of timeliness must 'categorically mandat[e]' that all specified action be taken by a date-certain deadline," id. at 791 (quoting National Resources Defense Council, Inc. v. Train, 166 U.S. App. D.C. 312, 510 F.2d 692, 712 (D.C. Cir. 1975)), that holding is not at odds with our ruling in this case. The statutory provision at issue here, Section 109(d), reads: "not later than December 31, 1980, and at five-year intervals thereafter, the Administrator shall complete a thorough review of the criteria . . . and promulgate such new standards as may be appropriate. . . ." Our colleague argues that this provision does not require that all specified action be completed within the stated deadline -- i.e., the Administrator is left to exercise his "appropriate" discretion as to whether or not to revise. This argument is, however, not inconsistent with our holding. We believe that the "specified action" under this section is the making of some decision within the stated deadlines, whether to revise new standards or not to revise. To the extent that the "specified action" is simply the making of some decision, all specified action is required to be completed within a stated deadline -- and, indeed, a stated deadline very close in language and meaning to the stated deadline in the Train case, in which the D.C. Circuit first announced its rule. See Train, 510 F.2d at 697 (interpreting statutory language requiring promulgation of regulations and guidelines "within one year of enactment of this title. . . .").

[p898] Having determined that the District of Columbia Circuit does not have exclusive jurisdiction, we now address what mandatory or, as the case may be, discretionary duties are created by the following language of Section 109(d) of the Act. To repeat, that section states in pertinent part:

"not later than December 31, 1980, and at five-year intervals thereafter, the Administrator shall complete a thorough review of the criteria published under section 108 . . . and promulgate such new standards as may be appropriate. . . . The Administrator may review and revise criteria or promulgate new standards earlier or more frequently than required under this paragraph."

Clearly this section includes both mandatory ("shall complete," "required") and non-mandatory language ("as may be appropriate"). Appellees rely on the phrase "as may be appropriate," arguing that Judge Edelstein was correct in holding that that language confers on the Administrator a wholly discretionary authority to revise the NAAQS, not to revise them, or simply not to address the issue with a formal public opinion. Appellants argue that, as a matter of statutory construction, Section 109(d) must be interpreted in light of the mandatory language of Sections 109(a) and (b). Section 109(a), which requires the initial promulgation of NAAQS, contains clearly mandatory language directing the Administrator to issue NAAQS within 120 days for those pollutants for which criteria had been published before 1970 and to issue proposed NAAQS simultaneously with the publication of criteria for newly identified pollutants. Appellants argue that Section 109(d) should be read in light of this clearly mandatory language.

We find this argument unpersuasive. Section 109(d) contains no cross-reference to Section 109(a). Moreover, it is difficult to perceive why the standard for the promulgation of initial NAAQS should be identical to that for revised NAAQS.C.ongress could have repeated the mandatory language of Section 109(a) in Section 109(d), but did not do so. Appellants also argue that Section 109(d) should be read in light of Section 109(b)(2), which declares that secondary NAAQS "shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator . . . is requisite to protect the public welfare. . . ." Section 109(d) does include a cross-reference to Section 109(b). Because Section 109(b)(2) expressly entrusts the substance of secondary NAAQS to the "judgment of the Administrator," it is difficult to read it as imposing non-discretionary duties. Furthermore, that section adds that secondary NAAQS "may be revised in the same manner as promulgated" (emphasis added). This permissive language suggests that, contrary to appellants' contention, the Administrator has discretion not to follow the procedures for issuing initial NAAQS when revising NAAQS. Harmonizing Section 109(d) with Section 109(b) thus does nothing to further appellants' case.

Appellants also contend that language of Section 109(d) itself, read in isolation, imposes a mandatory duty to revise the NAAQS. The phrase "as may be appropriate," they argue, is subject to the section's command that the Administrator "shall make . . . revisions." Under this view, the district court has jurisdiction to order the Administrator to make appropriate revisions in the NAAQS -- power in short to issue orders affecting the substance of revised NAAQS. Again we disagree. The words "as may be appropriate" clearly suggest that the Administrator must exercise judgment and the presence [p899]  of "shall" in the section implies only that the district court has jurisdiction to order the Administrator to make some formal decision whether to revise the NAAQS, the content of that decision being within the Administrator's discretion and reviewable only in the District of Columbia Circuit. ''Cf. Natural Resources Defense Council v. New York State Dept. of Envtl. Conservation,'' 700 F. Supp. 173 (S.D.N.Y. 1988).

Appellants advance a final argument, based on our caselaw. Conceding arguendo that the "as may be appropriate" language creates only discretionary authority, they contend that the district court has jurisdiction to compel the Administrator to revise its secondary NAAQS, the content of the revision being left to the Administrator. Under this view, the Administrator does not have power to decide not to revise. This argument is based on Natural Resources Defense Council v. Train, 545 F.2d 320 (2d Cir. 1976), which involved Section 108 of the Act. Section 108 requires the Administrator to evaluate potential air pollutants and then to publish a list of those which "endanger public health or welfare," employing the following language:

(a)(1) For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant --

(A) emissions of which in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. . ..

In Train, the EPA had evaluated lead, and conceded that lead met its standard for pollutants that "endanger [the] public health or welfare." It refused, however, to include lead on its list of pollutants. The Train plaintiffs brought suit, under Section 304, the "Citizen Suits" provision, seeking to compel the EPA to include lead on its pollutant list. In agreeing with the plaintiffs, we reasoned that the EPA had a non-discretionary duty to list lead, noting that the language of Section 108 was clearly mandatory and that the EPA had concededly found lead to "endanger public health or welfare." Because the duty to list lead was not discretionary in light of the finding of harmfulness, we held that the district court had jurisdiction to hear the suit and ordered the Administrator to include lead on his list of pollutants.

Appellants contend that Train requires a similar result in the instant case. They observe that the EPA's revised criteria of 1982 and its "Critical Assessment" of 1984-1985 both acknowledge the adverse effects of SOx-caused acid deposition. The published acknowledgments of those adverse effects are, appellants argue, the equivalent of the EPA's explicit concession in Train concerning the adverse effects of lead. The 1982 criteria and the "Critical Assessment" constitute, in effect, a formal declaration that revision of the SOx NAAQS is "appropriate" according to the terms of Section 109(d). In their view, the Administrator has thus already exercised his discretion, impliedly found revision to be "appropriate," and now has a non-discretionary duty, enforceable in the district court, to revise the NAAQS in line with his revised criteria.

This argument did not persuade Judge Edelstein, and it does not persuade us. Even if we were to treat the EPA's revised criteria of 1982 and its "Critical Assessment" of 1984-1985 as equivalent to the concession of the harmful effects of lead that underlay our holding in Train -- and it is far from clear that we should do so, cf. National Resources Defense Council, Inc. v. Thomas, 689 F. Supp. 246, 254-56 (S.D.N.Y. 1988) -- Train is still distinguishable from the present case. The duty at issue in Train was a thoroughly ministerial one. We did no more than affirm an order compelling the EPA to include "lead" on a list and to issue some NAAQS for lead. We did not, however, specify the content of those NAAQS. Train, 545 F.2d at 328. Train thus stands solely for the proposition that the district court has jurisdiction, under Section 304, to compel the Administrator to perform purely ministerial acts, not to order the Administrator to make particular judgmental decisions. An order [p900] in the instant case to the Administrator to revise the NAAQS for SOx would be essentially meaningless and unenforceable unless it also directed that he revise those NAAQS in a particular manner. Formulating the details of substantive NAAQS, however, clearly requires the sort of scientific judgment that is the "hallmark" of agency discretion, Kennecott Copper Corp., Nevada Mines v. Costle, 572 F.2d 1349, 1354 (9th Cir. 1978); Lead Industries Ass'n v. EPA, 208 U.S. App. D.C. 1, 647 F.2d 1130, 1146 (D.C. Cir.), cert. denied, 449 U.S. 1042, 66 L. Ed. 2d 503, 101 S.C.t. 621 (1980), and is exclusively within the jurisdiction of the District of Columbia Circuit.

However, if Train does not justify all of the relief that appellants seek, that is not to say that it does not justify any relief at all. Although the district court does not have jurisdiction to order the Administrator to make a particular revision, we cannot agree with appellees that the Administrator may simply make no formal decision to revise or not to revise, leaving the matter in a bureaucratic limbo subject neither to review in the District of Columbia Circuit nor to challenge in the district court. No discernible congressional purpose is served by creating such a bureaucratic twilight zone, in which many of the Act's purposes might become subject to evasion. The 1982 criteria and the 1984-1985 "Critical Assessment" triggered a duty on the part of EPA to address and decide whether and what kind of revision is necessary. The district court thus does have jurisdiction to compel the Administrator to make some formal decision as to whether or not to revise the secondary NAAQS. ''C.f. Natural Resources Defense Council v. New York State Dep't of Envtl. Conservation, supra.''

This reading of Train comports with our reading of the presence of both "shall" and "may" in Section 109(d). It also comports with the legislative history of Section 109(d). As the House Report stated,

"The Administrator is . . . required to promulgate new standards and revise existing standards as are appropriate under the terms of section 109(b) of the act."

H.R. No. 294, P.L. 95-95, 1977 U.S.C.ode Cong. & Admin. News 1261 (emphasis added). We recognize, of course, our obligation to defer to agency statutory construction where Congress's intent is not clear. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S.C.t. 2778, rehearing denied, 468 U.S. 1227, 105 S.C.t. 28, 82 L. Ed. 2d 921, 105 S.C.t. 29 (1984). Here, however, Congress's intent that the Administrator make some decision is clear.

Accordingly, we hold that, while the district court did not have jurisdiction to compel the Administrator to revise the NAAQS, it did have jurisdiction to compel the Administrator to take some formal action, employing rulemaking procedures, see Thomas v. State of New York, 256 U.S. App. D.C. 49, 802 F.2d 1443 (D.C. Cir. 1986), either revising the NAAQS or declining to revise them.

However, the Administrator's "Proposed Decision Not To Revise" of April 26, 1988, inviting comments on his determination that a decision as to the advisability of revising the secondary NAAQS for acid deposition "would be premature and unwise," is a required procedure in the course of reaching a formal decision. If this process continues, and a formal decision is rendered, appellants will have obtained all the relief to which they are entitled in a Section 304 action. Whether the decision when reached is wrong on the merits -- even egregiously wrong -- will be for the District of Columbia Circuit to resolve. We remand so the district court can enter an order directing the Administrator to continue the rulemaking to formal decision.

Reversed and remanded.


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Environmental Defense Fund v. Thomas/Dissent Mahoney

MAHONEY, Circuit Judge, dissenting:

I respectfully dissent, and would affirm the district court's determination that it lacked subject matter jurisdiction.

I do not agree with my colleagues that affirmance would leave a "bureaucratic limbo subject neither to review in the District of Columbia Circuit nor to challenge in the district court." Rather, I would think the procedure outlined in [p901] Oljato Chapter of Navajo Tribe v. Train, 169 U.S. App. D.C. 195, 515 F.2d 654 (D.C. Cir. 1975), was available to the plaintiffs here. Specifically:

(1) The person seeking revision of a standard of performance, or any other standard reviewable under Section 307, should petition EPA to revise the standard in question. The petition should be submitted together with supporting materials, or references to supporting materials. (2) EPA should respond to the petition and, if it denies the petition, set forth its reasons.

(3) If the petition is denied, the Petitioner may seek review of the denial in this court pursuant to Section 307.

Id. at 666.

The quite limited role of a district court in the Oljato scheme is stated in the following terms:

"The Administrator's failure to respond or inadequacy of response may be appealable to the District Court under the APA even if the substance of the denial is not so appealable. In such a case, the District Court would have the power to demand that the Administrator issue a response, or a more complete response even if it would not have the power to invalidate the standard of performance or order a revision."

Id. at 667 n.20 (emphasis added). The limited role which Oljato footnote 20 allows to a district court is inapplicable here, however, since the Oljato procedure has not been invoked.

I do not view the provision of Section 109(d)(1) that the Administrator "shall" complete a thorough review of criteria at specified five-year intervals "and promulgate such new standards as may be appropriate" as providing a stated deadline, within the meaning of Sierra Club v. Thomas, 264 U.S. App. D.C. 203, 828 F.2d 783 (D.C. Cir. 1987), as to the promulgation of standards. Sierra Club states: "In order to impose a clear-cut nondiscretionary duty [enforceable under section 304], we believe that a duty of timeliness must 'categorically mandat[e]' that all specified action be taken by a date-certain deadline." Id. at 791 (quoting National Resources Defense Council, Inc. v. Train, 166 U.S. App. D.C. 312, 510 F.2d 692, 712 (D.C. Cir. 1975)). It doesn't seem to me that Section 109(d) meets this standard, since there is pretty clearly no requirement that standards be finally promulgated at the specified five-year intervals, or by any other date-certain deadline.

I would accordingly view this case as falling within the rule stated in Telecommunications Research and Action Center v. FCC, 242 U.S. App. D.C. 222, 750 F.2d 70, 75 (D.C. Cir. 1984): "we hold that where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is subject to the exclusive review of the Circuit Court of Appeals." A footnote, appended to the quoted statement, specified [p902]  that this holding had "been considered separately and approved by the whole court, and thus constitutes the law of this circuit." Id. at 75 n. 24.

I therefore respectfully dissent.


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 1669 Ormonde was recalled, and Walsh thought it prudent to go to London, where he chiefly lived for the rest of his life. It was reported that Robartes, the new viceroy, had threatened to hang him (, Life of Plunket, p. 25). It is more certain that Peter Talbot, who was made archbishop of Dublin at least partly on account of his inveterate antipathy to Walsh (Spicilegium Ossoriense, iii. 92), persecuted him to the utmost, in the hope of forcing him to retract (ib. i. 479). ‘The imposture of Taafe,’ says Talbot, ‘has given us an excellent opportunity of hunting down the remonstrant Valesians, not as priests, but as scoundrels (nebulones)’ (ib. p. 471). ‘I confess,’ said Ormonde in 1680, ‘I have never read over Walsh's “History of the Remonstrance,” which is full of a sort of learning I have been little conversant in; but the doctrine is such as would cost him his life if he could be found where the pope has power’ (, App. ii. 114). In the Franciscan chapter-general held at Valladolid on 24 May 1670 Walsh, Coppinger, and their followers were declared excommunicate for printing books without the general's license, and for disregarding Rospigliosi's censures (Causa Valesiana, App. i.). Nevertheless Walsh published in 1672 his ‘Epistola prima [no second appeared] ad Thomam Haroldum,’ a Franciscan who had been detained for years at Brussels against his will. This letter contains a strong attack on Gregory VII. In 1673 were published twelve controversial letters purporting to be between a church of England man and a Roman catholic, but evidently all written by Walsh. The general conclusion is, ‘I think the not-deposing doctrine is the truly Catholic doctrine.’

Walsh was not friendless, for the internuncio Airoldi listened to him; he had allies among the Gallican clergy, and Ormonde could protect him even when not lord-lieutenant (Spicilegium Ossoriense, i. 489, 498, 505). Among the Anglican clergy his learning and candour commanded respect. In 1670 or 1671 he visited Oxford at the instance of Morley, bishop of Winchester, and in his name tried to persuade Thomas Barlow [q. v.] to answer the ‘Nucleus’ of the Socinian Christopher Sand (Four Letters, p. 132). Evelyn met him at dinner with Dolben, archbishop of York (Diary, 6 Jan. 1685–6). He considered Anglican orders valid, and went to church without scruple (ib.; preface to Four Letters). He was on friendly terms with Arthur, earl of Anglesey, who says, in his answer to Castlehaven, that he never knew any of the confederate catholics, even those of English extraction, who seemed really to repent the rebellion, ‘except only Peter Walsh, whom your lordship calls your ghostly father, and some few remonstrants with him’ (Letter to Castlehaven, pp. 33, 40; preface to Prospect of the State of Ireland). Walsh used to prophesy that popery would bid farewell to England when James became king ( Life, ed. Clark, iii. 261). During the viceroyalties of Robartes and Berkeley no mercy was shown to Walsh's party in Ireland, but under Essex they were again influential, and in 1675 it was supposed that the island would be too hot to hold a Dominican who had been active in exposing Taafe (Spicilegium Ossoriense, ii. 218). This may have been partly owing to an eloquent letter addressed by Walsh to Essex on 4 Aug. 1674, when a proclamation had been issued ordering all Roman catholic bishops and regular clergy to leave Ireland. Was it fair, he asked, to confound the innocent with the guilty, to exile friars who had signed the remonstrance, and to spare seculars who had refused? The remonstrants had suffered enough, and he felt that it was through trusting and following him (Four Letters, p. 21). Yet Walsh himself told Burnet that the true policy for the English government was to ‘hold an heavy hand on the regulars and jesuits, and be gentle to the seculars’ (, Own Times, i. 195). In 1674 Walsh published a ‘Letter to the Catholics of England, Ireland, and Scotland, &c.,’ written in the previous year and surreptitiously circulated, hoping that people would be as anxious to read it as they had been when they could not get it. It was reprinted as a preface to the ‘History of the Remonstrance,’ published in London later in the same year. This book of nearly a thousand folio pages is ill-digested and incomplete, but indispensable for the history of the time.

In the days of the remonstrance, at least, Walsh had an allowance of 300l. a year from Ormonde (Report on Carte Papers, p. 25). Afterwards the seneschalship of Winchester, worth 100l. a year, which was held by Ormonde, was settled on Walsh with Bishop Morley's consent (, ii. 548). Only once during their forty years' friendship did Walsh try to persuade his patron to be reconciled with Rome, whose religion was full of abuses, ‘yet safer to die in.’ Ormonde replied that he had no wish to reproach those who had inherited that faith, but that he would not sin against knowledge, and he wondered why Walsh had not sooner reminded him of his danger (ib.) In 1682, at the suggestion of Castlehaven, Walsh published part of a history of Ireland from 1756


text: Talk:Environmental Defense Fund v. Thomas


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 descendants at the present day: the Moscos, the Ramas, the Simoos or Smoos a. o.

Between this strip of country on the eastern shore and the two great lakes, Xolotlan (Managua) and Cocibolca (the lake of Nicaragua), the intermediate highland, which shelves gradually towards the lakes, was inhabited by los Chontales, as they are denominated by Oviedo. The name is still preserved in «Departemento de Chontales». They lived in large villages and towns and were agriculturists. Possibly they were of the same stock as, or closely related to, the large Maya-family which extended over the eastern parts of Honduras and Guatemala and furnished the population of Yucatan. This guess acquires a certain probability by the fact of several words in their language being similar to the corresponding ones in some Maya-dialects. The Poas, Toacas, Lacandones, and Guatusos may possibly be their descendants. These also are living at a decidedly lower stage of civilization than their supposed ancestors.

If the eastern part of Nicaragua, on account of its almost impenetrable forests and damp climate, is less fit to be the dwelling-place of a highly cultivated people, the western portion, on the contrary, is much more happily endowed in this respect and seems


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 to be marked out by nature itself to become one of the centres of mankind's civilization. By its smiling valleys, fertile plains, and thinner, but shadowy forests, by its splendid lakes, gently flowing rivers, and verdant mountains the country appears well able to tempt even the most exacting people to settle in it. Indeed the country, on the arrival of the Spaniards, was found to be very densely populated, and divided amongst a great number of small sovereignities, which could however be referred to two separate stocks, differing in language and character. One of these, the third one of those stocks from which has sprung the population of Nicaragua, was los Choroteganos or Mangues. They occupied the territory between the two large lakes and all the fertile level country west and north of Lake Managua down to the Pacific and Bahia de Fonseca. Oviedo asserts that they were the aborigines and ancient masters of the country, without being able however to state any proofs in support of his opinion. Of los Choroteganos four groups are usually distinguished: 1:0) Los Cholutecas on the shores of Bahia de Fonseca; their principal town was the present Choluteca. 2:0) Los Nagrandanos between Lake Managua and the Pacific; their capital was Subtiaba, near the present Leon. 3:0) Los Dirianos between the lakes Managua and Nicaragua and down to the coast of the Pacific. Their largest town was Salteba near the present Granada and 4:0 Los Orotinas far separated from their relations, inhabiting the peninsula of Nicoya and the territory of Guanacaste, which comprises the north-eastern part of the republic of Costa Rica. Opinions vary, however, with regard to these groups, several authors being inclined to regard los Cholutecas as a detached branch of los Pipiles in El Salvador; they would then be of Toltecan origin. Certainly there is a number of local names within their district which seem to corroborate this opinion. Other writers are disposed


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 to 1652 A.D. (London, 8vo). It is worthless, being founded on Keating and Cambrensis Eversus, without recourse to Ussher and Ware. In the dedication to Charles II Walsh declares himself an ‘unrepentant sinner,’ determined to die as he had lived, the king's ‘most loyal, most obedient, and most humble servant.’ In 1684 appeared Walsh's ‘Causa Valesiana,’ going over much of the old ground, but in Latin, and addressed to the continent rather than to England. The appendix contains a strong attack on Gregory VII by Caron, and a loving account of the latter, with a complete list of his writings, by Walsh. In his preface Walsh represents himself as a victim to the will of the Roman curia, transfixed by the sword of excommunication, but never retaliating in Latin except in the letter to Thomas Harold (‘Valesius ad Haroldum,’ 1672, fol.). In 1686 he published an elaborate answer, written two years earlier, to Bishop Barlow's ‘Popery,’ declaring himself in the preface ready to submit his own writings to a properly constituted œcumenical synod, or even to one of the western church only, or to any learned man who could prove him wrong by argument, ‘but not by the bare dictates or absolute will of a despotical imperious power.’ In the same volume he printed his letter to Essex in 1674, and those to Nicholas French in 1675 and 1676, in connection with that writer's attack on [q. v.]

Walsh died in London on 15 March 1687–8. Two days before he dictated a letter to Ormonde, who survived him only four months, asking his favour for the Franciscan convent at Kilkenny and for a poor nephew of his, thanking him for his unflinching kindness, and giving him a dying man's blessing. The letter was written by Genetti, a chaplain of the nuncio Adda, and signed by Walsh ‘in a trembling hand.’ On the same day he signed a paper, which was witnessed by Genetti and three Irish Franciscans, in which he submitted everything he had written to the examination and judgment of the holy Roman catholic church and of the ‘vicar of Christ on earth, the Roman pontiff,’ retracting everything that might be condemned, and promising in case of recovery to ‘submit his private judgment to that of the church’ (Report on Carte Papers, p. 126; Clarendon and Rochester Correspondence, ii. 166;, p. 486). In spite of Dr. Killen, there seems no reason to doubt the genuineness of this document. Walsh thought prayers for the dead might possibly be useful, and gave Dodwell this reason for not conforming to the church of England. As soon as he was dead the Franciscans carried off his books and papers. He was buried in the church of St. Dunstan-in-the-West.

In many ways Peter Walsh resembles Paul Sarpi. His historical importance lies in his attempt to show that a devout son and priest of the Roman church could preserve liberty of speech and an undivided civil allegiance, in spite of the ultramontane system of papal infallibility and absolute power. He was, says Burnet, the ‘honestest and learnedest man’ he had ever met with among the Roman catholic priests. ‘He was, indeed, in all points of controversy almost wholly protestant; but he had senses of his own by which he excused his adhering to the church of Rome; and he maintained, that with these he could continue in the communion of that church without sin; and he said that he was sure he did some good staying still on that side, but that he could do none at all if he should come over; he thought no man ought to forsake that religion in which he was born and bred, unless he was clearly convinced that he must certainly be damned if he continued in it. He was an honest and able man, much practised in intrigues, and knew well the methods of the jesuits and other missionaries’ (Hist. of his Own Times, i. 195). He often told Burnet that a union between the church of England and the presbyterians was what the popish party chiefly feared, upon which Swift's note is ‘Rogue’ (ib.) Among the Franciscans, who never quite forgot Ockham, Walsh always had some support, and the historian Brenan, who was of that order, has dealt tenderly with his memory. None of Walsh's books are common, and some are very rare. ‘Hibernica,’ which he himself describes as ‘opus bene magnum,’ is not known to be extant; it was never seen by Harris, and there is no copy in the British Museum, in the Bodleian, or in Trinity College, Dublin. Besides the works already mentioned, Walsh published: The defence of Becket, mentioned by Harris, is incorporated with the ‘History of the Remonstrance’ (pp. 374–462).
 * 1) ‘The Controversial Letters, or the Grand Controversy concerning the temporal authority of the Popes over the whole Earth, &c. … between two English Gentlemen, the one of the Church of England, the other of the Church of Rome,’ London, 1673–4.
 * 2) ‘An Answer to three Treatises’ (with a preface by Stillingfleet, 1677), London, 1678, 8vo.

[The chief authorities for Walsh's life are his own works. Cardinal Moran's Spicilegium Ossoriense and Life of Oliver Plunket; Carte's Life of Ormonde; Contemporary Hist. of Af-


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 Opinion of the Court enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement. See In re Aimster Copyright Litigation, 334 F.3d 643, 645–646 (CA7 2003).

One infringes contributorily by intentionally inducing or encouraging direct infringement, see ''Gershwin Pub. Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (CA2 1971), and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it, Shapiro, Bernstein & Co. v. H. L. Green Co.'', 316 F.2d 304, 307 (CA2 1963). Although “[t]he Copyright Act does not expressly render anyone liable for infringement committed by another,” Sony Corp. v. Universal City Studios, 464 U.S., at 434, these doctrines of secondary liability emerged from common law principles and are well established in the law, id., at 486 (Blackmun, J., dissenting); Kalem Co. v. Harper Brothers, 222 U.S. 55, 62–63 (1911); ''Gershwin Pub. Corp. v. Columbia Artists Management,''


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 to ascribe a Mexican origin to the Orotinas and lastly Dr. suggests that the whole Chorotegan stock may be considered as a Toltecan offspring, the name Choroteganos being only a corruption of Cholutecas.

The last or fourth of the tribes inhabiting Nicaragua was los. The territory occupied by this people was the smallest of all, viz; the narrow isthmus between Lake Nicaragua and the Pacific, together with the large islands, Ometepec and Zapatera, in Lake Nicaragua. But although comparatively small in extent this territory was perhaps the most richly blessed of all in this country, the darling one of nature. According to the concurrent testimonies of the old chroniclers the Niquirans were a Mexican people settled in the country at a comparatively late period. It is not clear whether they were Toltecs or Aztecs, and this question cannot probably be decided until the ancient remains, surely very numerous, that they have left behind them, shall have been accurately studied and compared with the better known Mexican antiquities. For my own part I incline to the opinion that they were Aztecs, and had immigrated into the country rather late, perhaps little more than a hundred years before the Spanish invasion. They lived in a state of permanent hostility with the Chorotegans and had probably, on their irruption, expelled the Oratinas, who were thus cut off from the main stock of the Chorotegans. The intelligent and well built Indians on the island of Ometepec are doubtless the descendants of the Niquirans; this is corroborated by their language, which the successful investigations of Squier have shown to be of Mexican origin and presenting a very close similarity to the pure Aztec tongue. They are now a laborious and peaceful race,