upholding EPA’s exercise of legislative rulemaking authority to set the effective date for the PSD preconstruction review and permit requirements of the 1977 Amendments as March 1, 1978, subject to minor exceptions
How later courts described this case
- upholding EPA’s exercise of legislative rulemaking authority to set the effective date for the PSD preconstruction review and permit requirements of the 1977 Amendments as March 1, 1978, subject to minor exceptions
- describing advance payment program as a clear "departure" from, and "modification" of the "used and useful" principle
- Section 301 “does not provide the Administrator with carte blanche authority to promulgate any rules, on any matter relating to the Clean Air Act.”
- agency rules filling breach in directives of Clean Air Act were legislative
Written by the judges who cited it.
The opinion
LEVENTHAL, Circuit Judge,
concurring:
I concur in Judge Wilkey’s opinion for the court, and take this occasion to express appreciation for the effort and skill with which he has wended his way through the labyrinth of the 1977 Amendments to the Clean Air Act under discussion.
I add this note as a concurrence-for-emphasis. 1
When, as here, an agency has rule-making power, it is not confined to “procedural minutiae” but may take action that “conforms with the purposes and policies of Congress and does not contravene any terms of the Act.” 2 This includes an authority to adopt programs aimed at “maximum effectuation of Congressional objectives” and “maintaining the fairness, equity and efficiency” of the government’s program. 3
In this case, the Environmental Protection Agency has adopted a regulation that is reasonable in terms of furthering, to the maximum possible extent, the broad objectives of Congress; and it has not in this process violated any discernible Congressional command as to particulars, for the only provisions in the statute relating to such particulars contradict and therefore countermand each other. 4 The fruit of Judge Wilkey’s tilth in depth is an appreciation of the legitimacy and propriety of EPA’s disposition of a vexing problem. 5 When an agency shows good sense, “[cjourts are loath to say that good sense is not good law.” 6
. See Austin v. United States, 127 U.S.App.D.C. 180, 194 , 382 F.2d 129, 143 (1967).
. Niagara Mohawk Power Corp. v. Federal Power Commission, 126 U.S.App.D.C. 376 , 381, 379 F.2d 153, 158 (1967).
. Id. 126 U.S.App.D.C. at 382, 379 F.2d at 159 .
. One is reminded of Eugene Field’s The Gingham Dog and the Calico Cat. The tension between the two animals culminates in these final lines of doggerel: “The truth about the cat and pup is this, They ate each other up.”
. As a general rule, the “wise and sound course for the courts is to give to the terms of a statute their plain meaning, so long as the resultant effect is sensible and not in conflict with a discernible purpose.” Border Pipe Line Co. v. FPC, 84 U.S.App.D.C. 142 , 171 F.2d 149 (1948). Separation of powers considerations restrain a court, and Congress is usually available to correct an erroneous construction. In this case no “plain meaning” is discernible, clarification by Congress is not a realistic alternative, and the agency’s rule making is not constrained by the separation of powers considerations that inhibit a court.
.Niagara Mohawk, supra, 126 U.S.App.D.C. at 383, 379 F.2d at 160 .