Petition — Sierra Club v. United States Environmental Protection Agency

Supreme Court, U. |

»s /FULR DP

| Nome 157

MICHA

IN THE LEIMEL RODAK, JR., CLERK |

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-6178

SIERRA CLUB, et al.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRUCE J. TERRIS

NATHALIE V. BLACK

1908 Sunderland Place, N.W.

Washington, D. C. 20036

(202) 785-1992

Attorneys for Petitioners

WILSON - EPES PRINTING Co.. INC. - RE 7-6002 - WASHINGTON. D. C. 20001

TABLE OF CONTENTS

Page

OPINION BELOW

JURISDICTION

QUESTION PRESENTED

STATUTE AND REGULATIONS INVOLVED ___

STATEMENT

REASONS FOR GRANTING THE WRIT .

CONCLUSION _...._. 15

aw non S Nd NW

TABLE OF AUTHORITIES

CASES:

Neil v. Biggers, 409 U.S. 188 (1972) —.. SE 8

Sierra Club v. Ruckelshaus, 344 F. Supp. 253

(D.D.C. 1972), affirmed 8 ERC 1815 (C.A.D.C.

1972), affirmed by an equally divided court, 412

U.S. 541 5, 6, 8, 9, 11

STATUTES:

28 U.S.C. 1254(1) | 2

Clean Air Act of 1970

eves. Baeeéca ——._._..........

& UL. Merve ()) —__.._._.__......._.._..46 9

42 U.S.C. 1857c-3 3,

BR ee

& U.20. tee6) (3) —_.___..........

42 U.S.C. 1857c-4(b) (2) 2

Ge ee BI etiterecescecen:

& Ue. Beeee) (2)...

& Use. ieee) Gy)

Se eS I cotati cccnpeiiemaiuiomenimetaiininene

42 U.S.C. 1857h(h) _.. sliinsieecasiesiiician sonnel

OO _ e—————

—

Aworh hr RP wWWWe Dw

II

TABLE OF AUTIIORITIES—Continued

LEGISLATIVE MATERIALS:

Hearings on Air Pollution before the Subcommittee

on Air and Water Pollution of the Senate Pub-

lic Works Committee, 9lst Cong., 2d Sess.’

(1970) SORES OI i Ree Toate

Hearings on Air Pollution Control and Solid Waste

Recycling before the Subcommittee on Public

Health and Welfare of the House Interstate and

Foreign Commerce Committee, 9ist Cong., 2d

Sess. (1970) FCAT a

REGULATIONS:

Page

40 C.F.R. 50.2(c) , _....4, 9, 10

Lf 8S ee

40 C.F.R. 50.40.11 iataiaeaidadiiiainaiaes

40 C.F.R. 51.12(b) peitiiamninitiins

40 C.F.R. 52.01(d), (f) = siecle:

40 C.F.R. 52.21 *

40 C.F.R. 52. 21(c) | (1), (2) ietiasealianaaieemmiaaiadth

40 C.F.R. 52.21(c) (2) (i) - seilatilbsinaapininnslbepitecionn

40 C.F.R. 52.21(c) (2) (ii) sinainhcteetninnainint

40 C.F.R. 52.21(c) (3) (iii), (iv)

38 Fed. Reg. 18986 ,

39 Fed. Reg. 31000 -

I

40 Fed. Reg. 25004 satnamlasannte

40 Fed. Reg. 42011

MISCELLANEOUS:

Carnow, “Sulfur Oxides and Particles: Effects on

Health,” reprinted in Proceedings of the Con-

ference on Health Effects of Air Pollutants, S.

Rep. No. 15, Senate Committee on Public Works,

93d Cong., ist Sess. (1973)

Environmental Protection Agency, Monitoring

and Air Quality Trends Report, 1972 _.._-

14

13

III

TABLE OF AUTHORITIES—Continued

Hickey, et al., Ecological Statistical Studies of En-

vironmental Pollution and Chronic Disease in

Metropolitan Areas of the United States, Re-

gional Science Research Institute Discussion

Paper Series, No. 35 (1970) - i

NAS, Supplemental Statement Concerning the Re-

port of the Conference on Air Quality and Auto-

mobile Emissions (July 29, 1975)

Neuberger and Radford, “Review of Human

Health Criteria for Ambient Air Quality Stand-

ards in Maryland,’ Department of Environ-

mental Medicine, Johns Hopkins University

Page

14

14

15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No.

SIERRA CLUB, et al.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

The Sierra Club, the Metropolitan Washington Coali-

tion for Clean Air, New Mexico Citizens for Clean Air

and Water, the Oregon Environmental Council, Susan

L. Moore, Sally Rodgers, Stephen Winter, and John Tan-

ton pray that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

District of Columbia Circuit.'

1The Sierra Club filed a petition for review in No. 74-2063

below and, joined by the Metropolitan Washington Coalition for

Clean Air and the New Mexico Citizens for Clean Air and Water,

petitioned for review in No. 74-2079 below. The Oregon Environ-

mental Council, Susan L. Moore, Sally Rodgers, Stephen Winter,

and John Tanton joined the Sierra Club as intervenors in the

various cases in the court below which were consolidated.

2

OPINION BELOW

The opinion of the court of appeals has not yet been

officially reported. It is set out as Appendix A to the

Petition for a Writ of Certiorari in No. 76-529 which

was filed by the Montana Power Company and fourteen

other. petitioners seeking to review the same judgment

of the court below.’ oe

JURISDICTION

The judgment of the court of appeals was entered on

August 2, 1976. Petition, No. 76-529, App. C. The ju-

risdiction of this Court is invoked under 28 U.S.C. 1254

(1).

QUESTION PRESENTED

Whether the regulations promulgated by the Environ-

mental Protection Agency to prevent significant deterior-

ation of existing clean air fail to carry out the require-

ments of the Clean Air Act by: |

(1) allowing the deterioration of existing clean air in

areas designated as Class III all the way to the national

ambient air quality standards; and

(2) failing to adopt any provisions to prevent dete-

rioration of existing clean air by nitrogen oxides, hydro-

carbons, carbon monoxide, and photochemical oxidants,

which are pollutants covered by the Act.

STATUTE AND REGULATIONS INVOLVED

The regulations adopted by the Environmental Protec-

tion Agency are found in 40 C.F.R. 52.01(d), (f), and

52.21. The regulations were published in 39 Fed. Reg.

42510, and amended in 40 Fed. Reg. 2802, 40 Fed. Reg.

25004, and 40 Fed. Reg. 42011. The text of the regula-

‘Hereafter the appendices to the petition in No. 76-529 are

designated as Petition, No. 76-529, App. ——.

tions is set out in the Petition, No. 76-529, App. B, pp.

75a-90a.

The Clean Air Act, as amended, 42 U.S.C. 1857, et

seq., is set out in the Petition, No. 76-529, App. E.

STATEMENT

Congress provided in Section 109 of the Clean Air

Act, 42 U.S.C. 1857c-4, that the Administrator of the

Environmental Protection Agency should establish ambi-

ent air quality standards which would apply throughout

the country. The primary ambient air standards were

required to be set at levels of pollution “requisite to

protect the public health.” 42 -U.S.C. 1857c-4(b) (1).

Secondary standards were required to be set at levels

of pollution “requisite to protect the public welfare from

any known or anticipated adverse effects associated with

the presence of such air pollutant in the ambient air.”

42 U.S.C. 1857c-4(b) (2). The public welfare was de-

fined broadly as any “effects on soils, water, crops, vege-

tation, manmade materials, animals, wildlife, weather,

property, and hazards to transportation, as well as ef-

fects on economic values and on personal comfort and

well-being.” 42 U.S.C. 1857h(h). Pursuant to this au-

thority, the Administrator adopted National Primary

and Secondary Ambient Air Quality Standards for the

six air pollutants which had been determined, under

Section 108, 42 U.S.C. 1857c-3, to have “an adverse

effect on public health and welfare’ and the “presence

of which in the ambient air results from numerous or

diverse mobile or stationary sources * * *.” The six

pollutants are sulfur dioxide, particulates, carbon mon-

oxide, hydrocarbons, nitrogen dioxide, and photochemical

oxidants. 40 C.F.R. 50.40.11.

Section 110 of the Clean Air Act requires each State

to adopt an implementation plan to carry out the pro-

4

visions of the Act. 42 U.S.C. 1857c-5. The plans may

include emission limitations for various kinds of pollu-

tion sources, permit systems for new sources, land-use

controls, transportation controls, inspection systems for

automobiles, and systems for monitoring air quality. 42

U.S.C. 1857¢-5 (a) (2).

The States were required to submit their implementa-

tion plans to the Administrator by January 31, 1972.

42 U.S.C. 1857c-5(a) (1). The Administrator was re-

quired, by May 31, 1972, to determine whether the plans

complied with the Act and, on this basis, to approve or

disapprove them. 42 U.S.C. 1857c-5(a) (2). If the Ad-

ministrator disapproved a state plan or any portion of

it, he was required within two months to promulgate

his own regulations to replace the disapproved portion.

42 U.S.C. 1857¢-5(c).

Section 101 of the Clean Air Act, 42 U.S.C. 1857(b)

(1), provides that “[t]he purposes of this subchapter

are—(1) to protect and enhance the quality of the Na-

tion’s air resources * * *.” Accordingly, the Adminis-

trator adopted, as part of the national standards, 40

C.F.R. 50.2(c), which is still in effect:

The promulgation of national primary and secondary

ambient air quality standards shall not be considered

in any manner to allow significant deterioration of

existing air quality in any portion of any State.

In spite of this provision, however, the Administrator

also adopted, as part of the regulations to guide the

formulation and content of state implementation plans,

40 C.F.R. 51.12(b), which stated:

In any region where measured or estimated ambient

levels of a pollutant are below the levels specified

by an applicable secondary standard the state imple

mentation plan shall set forth a control strategy

which shall be adequate to prevent such ambient pol-

lution levels from exceeding such secondary standard.

_ 4

Subsequently, the Administrator made clear that he

would approve state implementation plans*which permit

the degradation of existing air quality as long as the

pollution levels did not exceed those permitted by the

secondary standards.

Petitioners Sierra Club, the Metropolitan Washington

Coalition for Clean Air, and the New Mexico Citizens

for Clean Air and Water filed suit in May 1972 in the

District Court for the District of Columbia to challenge

the legality of EPA’s determination to allow air quality

to deteriorate to the national standards. The district

court carefully considered the language of the Clean Air

Act, its legislative history, and administrative history.

On the basis of this analysis,’ the court concluded that

(Sierra Club v. Ruckelshaus, 344 F.Supp. 253, 256

(1972) ):

* * * the Clean Air Act of 1970 is based in important

part on a policy of non-degradation of existing clean

air and that 40 C.F.R. § 51.12(b), in permitting

the states to submit plans which allow pollution

levels of clean air to rise to the secondary standard

level of pollution, is contrary to the legislative policy

of the Act and is, therefore, invalid.

In accordance with this judgment, the court enjoined the

Administrator from: *

approving any state implementation plan under 42

U.S.C. 1857¢e-5 unless he approves the state plan

subject to subsequent review by him to insure that

it does not permit significant deterioration of exist-

ing air quality in any portion of any state where the

existing air quality is better than one or more of

the secondary standards promulgated by the Admin-

istrator. * * * The Administrator shall * * * ap-

prove any portion of a state plan which effectively

1The order of the district court is set forth in the Appendix

to this petition.

6

prevents the significant deterioration of existing air

quality in any portion of any state, and disapprove

any portion of a state plan which fails to effectively

prevent the significant deterioration of existing air

quality in any portion of any state.

The Administrator shall prepare and publish pro-

posed regulations, pursuant to 42 U.S.C. 1857c-5(c)

as to any state plan which he finds, on the basis of

his review, either permits the significant deteriora-

tion of existing air quality in any portion of any

state or fails to take the measures necessary to pre-

vent such significant deterioration.

On November 1, 1972, the Court of Appeals for the

District of Columbia Circuit affirmed per curiam on the

basis of the district court’s opinion. 4 ERC 1815. On

June 11, 1973, this Court affirmed by an equally divided

Court. Fri v. Sierra Club, 412 U.S. 541.

The final regulations were signed by the Administra-

tor on November 27, 1974. 39 Fed. Reg. 42510. The

regulations establish a structure through which those

areas of the country which enjoy air with lower levels

of sulfur dioxide or particulate pollution than is per-

mitted by the national standards are to be designated

Class I, Class II, or Class III. 40 C.F.R. 52.21(c) (1),

(2). Any area which is designated Class I would be

permitted to increase pollution of sulfur dioxide or par-

ticulates by the smallest increment. 40 C.F.R. 52.21(c)

(2) (i). A Class II area would be allowed a very sub-

stantially larger pollution increment. Jbid. A Class III

area would be permitted to increase pollution from what-

ever level previously existed up to the level of the na-

tional standards. 40 C.F.R. 52.21(c) (2) (ii). Authority

to redesignate areas as Classes I or III is given to the

State or to the appropriate Indian Governing Body where

the State has not assumed jurisdiction over Indian lands.

40 C.F.R. 52.21(c) (3) (i), (ii), (v). As to Federal

7

lands, the Federal Land Manager may redesignate such

lands to a more restrictive classification than initially

applies or than the State has provided. 40 C.F.R. 52.21

(c) (3) (iii), (iv).

The regulations did not contain provisions limiting in-

creased pollution of clean air areas from nitrogen oxides,

carbon monoxides, hydrocarbons or photochemical oxi-

dants.

Upon issuance of the final regulations, petitions for

review were filed in the Court of Appeals for the District

of Columbia Circuit, pursuant to Section 307(b) (1) of

the Clean Air Act, 42 U.S.C. 1857h-5(b) (1), and in

five other courts of appeals. The latter cases were trans-

ferred by those courts to the District of Columbia Cir-

cuit and all of the review proceedings were consolidated

by that court.

The Sierra Club and related petitioners sought review

of the regulations on the ground that they failed to

comply with the requirements of the Clean Air Act and

of the judicial rulings in Sierra Club v. Ruckelshaus,

supra. They primarily alleged that the regulations were

invalid insofar as they allowed pollution levels in Class

III areas to rise to the national standards, regardless of

the existing degree of pollution, and entirely omitted

regulated pollutants other than sulfur dioxide and par-

ticulates. However, they supported the constitutional and

statutory authority of EPA to issue regulations to pre-

vent the significant deterioration of air quality. The

petitions filed on behalf of industry in the courts of

appeals challenged the regulations in their entirety, argu-

ing that EPA had no constitutional or statutory author-

ity for their issuance and that the procedures by which

they were adopted were improper.

The court of appeals essentially rejected all of these

arguments. The court concluded (Petiticn, No. 76-529,

App. A, p. 51a):

We find no ground on which to disturb the regula-

tions under review, and we therefore affirm the EPA

“Prevention of Significant Air Quality Deterioration”

regulations. Our review of Sierra Club v. Ruckel-

shaus and subsequent events has revealed no sub-

stantial reason for rejection of that decision, and we

hold that the non-deterioration regulations promul-

gated pursuant to that decision are both rational and

in accordance with law.

REASONS FOR GRANTING THE WRIT

Petitioners here agree with the decision of the court

of appeals that the Environmental Protection Agency

had the authority and indeed the duty to promulgate

regulations to prevent significant deterioration of exist-

ing clean air and that the procedures by which the regu-

lations were adopted were proper. We seek a writ of

certiorari limited to our contentions that the regulations

adopted by EPA do not carry out the requirements of

the Clean Air Act and the mandate of the district court,

which was affirmed by the court of appeals and this

Court in Sierra Club v. Ruckelshaus, supra.’

Sierra Club v. Ruckelshaus determined that Section

101(b) (1) of the Clean Air Act, 42 U.S.C. 1857(b) (1),

prohibited the significant deterioration of air quality

which is better than the national standards.* It essen-

tially adopted the earlier position of EPA that the Act

' Petitioners do not contend that the affirmance by an equally

divided vote of this Court has value as precedent. Neil v. Biggers,

409 U.S. 188, 192 (1972). The court of appeals, however, unani-

mously affirmed the district court’s decision and that judgment, hav-

ing been affirmed by this Court, was binding on the agency.

* This petition will not reargue whether the decision in Sierra

Club v. Ruckelshaus was correct. The court below agreed that it

was. Petition, No. 76-529, App. A, p. 29a. A number of industry

petitioners are challenging this aspect of the decision below and

we will respond to those arguments in our brief in opposition

to those petitions.

did not permit the “significant deterioration of existing

air quality in any portion of any State.” 40 C.F.R.

50.2(c). The district court in Sierra Club v. Ruckels-

haus ordered EPA to follow its own regulation, requir-

ing it to disapprove any state implementation plan which

would “permit significant deterioration of existing air

quality in any portion of any state where the existing

air quality is better than one or more of the secondary

standards promulgated by the Administrator.” Appendix,

p. 23.

The regulations adopted by EPA violate this require-

ment in two important ways. First, they authorize the

degradation of clean air to the level of the national

standards in any area which is designated as Class III.

Second, they fail to prevent, in any way, the degrada-

tion of existing air quality by four of the six regulated

pollutants.

1. Section 101(b) (1) requires EPA to “protect * * *

the quality of the nation’s air resources.” This language,

which is the foundation of the Act’s prohibition of sig-

nificant deterioration, covers the entire country. It does

not suggest that a state or other body may choose which

areas will have their clean air protected and which not.

Moreover, the legislative history of this section also

makes clear that the prohibition against significant de

terioration applies to all clean air a.eas. In testimony

to both Houses of Congress in support of the 1970 Clean

Air Act, Secretary of HEW Finch stated that the exist-

ing 1967 and proposed 1970 Acts prohibited significant

deterioration. He then explained what it meant: “We

shall continue to expect States to maintain air of good

quality where it now exists.” Hearings on Air Pollution

before the Subcommittee on Air and Water Pollution of

the Senate Public Works Committee, 91st Cong., 2d

Sess. 132-133 (1970) ; Hearings on Air Pollution Control

10

and Solid Waste Recycling before the Subcommittee on

Public Health and Welfare of the House Interstate and

Foreign Commerce Committee, 91st Cong., 2d Sess. 297

(1970). Under Secretary of HEW Veneman, who pre-

sented Secretary Finch’s statement, then further ex-

plained to the Senate Committee (p. 143):

We do not intend to condone “backsliding.” If an

area has air quality which is better than the na-

tional standards, they would be required to stay there

and not pollute the air even further, even though

they may be below national standards.

The order of the district court, which simply elaborated

on the position which EPA had already taken in its

promulgation of 40 C.F.R. 50.2(c), prohibited the Ad-

ministrator from approving state implementation plans

which allowed pollution to rise to the level of the na-

tional standards “in any portion of any state.” *

Nevertheless, EPA adopted regulations which permit

degradation of existing clean air, regardless of its pres-

ent quality, so long as the area has been redesignated

as a Class III area. Since there are no restrictions in

the regulations limiting the size of a Class III area and

none on the type of area which would be appropriate

for such designation, large areas presently enjoying

pristine air could be so designated, as well as regions

where industrial development is already occurring.

The court below did not respond to petitioners’ con-

tention that permitting deterioration to the level of the

national standards directly contradicted the requirement

1There are areas which could technically be called “clean air

areas” because the air quality does not violate any of the standards,

but where even a small increase in pollutants would reach the level

of the standards. The district court’s order does not forbid such

an increase because only “significant’’ increases are prohibited,

Of course, the level of the standards may not be exceeded, no

matter how slight the increase.

11

of the Clean Air Act and the order of the district court

in Sierra Club v. Ruckelshaus. Instead, the court below

avoided discussion of that contention and approved the

EPA structure, by merely terming it “a rational policy

decision” and a “workable definition of significant de-

terioration * * *.” Petition, No. 76-529, App. A, p. 33a.

The blanket authorization for Class III areas con-

tained in the regulations hardly constitutes a workable

definition. On the contrary, there is no definition, merely

procedures which must be followed in order to redesig-

nate. If the procedures are observed, any additional

deterioration is permitted as long as the national stand-

ards are not exceeded. There is, for example, nothing to

prevent large areas of this country, including urban

areas, with annual average sulfur dioxide levels of less

than 15 micrograms per cubic meter, from rising to

the level of the national standard of 80 micrograms, as

long as such areas are designated as Class III. If the

Clean Air Act allows deterioration of clean air to the

national standards virtually at will, then prohibition of

significant deterioration of air quality is rendered almost

meaningless.

2. Section 108 of the Clean Air Act, 42 U.S.C. 1857c-

3, provides that the Administrator must adopt standards

for “each air pollutant—(A) which in his judgment has

an adverse effect on public health or welfare * * *.” The

Administrator has determined that six air pollutants

come within this definition and has adopted national

primary and secondary standards for them. 40 C.F.R.

50.4-.11.

Nevertheless, the regulations, which purport to prevent

significant deterioration of clean air, include processes

relating to only two of the regulated pollutants, sulfur

dioxide and particulates. Nitrogen oxides, hydrocarbons,

carbon monoxide, and photochemical oxidants are left to-

12

tally unregulated.' This is directly inconsistent with

Section 101(b) (1), which requires that the nation’s air

resources be protected without distinguishing between

kinds of pollutants, and the district court’s order, which

requires the protection of existing air quality which is

better than any of the secondary standards.

EPA does not claim that the Act does not apply to

significant deterioration of air quality from the other

four pollutants. Rather, EPA has, in effect, argued that

it would like tc control these pollutants but does not know

how. More specifically, EPA has chosen a system of

pollution increments as its method for carrying out the

prevention of significant deterioration. To determine

whether the increments have been “used up” when a new

major pollution source seeks to locate in a clean air

region, EPA uses models. Petition, No. 76-529, App. A,

p. 65a. EPA now asserts that it does not know how to

model for these four pollutants in clean air regions, and

that it therefore cannot control them. /d. at 30a. The

court below accepted this argument, terming it a policy

decision involving the agency’s expertise. /d. at 31a.

We submit that difficulties in enforcing a federal stat-

ute are not an excuse for ignoring it. If EPA believes

that the prohibition against significant deterioration of

these pollutants is difficult to enforce, it can seek relief

from Congress. In the meantime, it has the responsibility

to do all that is reasonably possible to carry out the re-

quirements of the statute.

Moreover, the apparent difficulties in the instant case

are largely of EPA’s own making. EPA selected the

system for implementing the policy of preventing sig-

1 Photochemical oxidants are formed from the interaction of

hydrocarbons and nitrogen oxides rather than being directly

emitted. Control of the precursor pollutants should be adequate

to prevent degradation by oxidants. However, the significant de-

terioration regulations do not attempt to control either precursor

pollutant.

13

nificant deterioration. It was neither the only possible

system nor was it mandated by Congress. Indeed, EPA

proposed four methods of implementation in 1973 (38

Fed. Reg. 18986) and described seven methods in the

Technical Support Document it prepared in support of

the present regulations. One of these methods, a direct

limitation on the amount of emissions in a region coming

from stationary sources, requires no modelling and could

clearly reduce the amount of deterioration caused by

these other pollutants. While EPA has decided that the

present incremental system is preferable for sulfur di-

oxide and particulates (39 Fed. Reg. 31000), it has never

explained why an emission limitation method or one of

the other methods could not be used to implement the

Act’s prohibition of significant deterioration as to the

other four pollutants.

3. The issues raised in this petition are of broad na-

tional importance. Most of the country presently enjoys

air quality far better than would be permitted by the

national standards. For example, many areas, urban as

well as rural, presently have air containing amounts of

sulfur oxides many times lower than would be permitted

by the national standards. EPA, Monitoring and Air

Quality Trends Report, 1972. According to the Admin-

istrator of EPA, about 80 percent of the country enjoys

air which contains less sulfur oxide than the national

standards allow and about 50 percent of the country has

air quality better than the standards for particulate

matter.

These pollutants all have adverse effects on human

health and welfare, even at levels below the national

standards. While scientific evidence may not yet be suf-

ficient to require lowering of the national standards,

there is increasing data showing significant health and

other effects caused by poliutants at low levels. There

is particular concern over exposure to these pollutants

over long periods of time.

14

For example, a study presented to the National Acad-

emy of Sciences, Assembly of Life Sciences, cites as part

of its conclusions: '

That SO, [sulfur dioxide] and particulates and,

even more, their products sulfuric acid and acid sul-

fates are toxic and may seriously affect the health

of significant numbers of humans, even at levels

generally considered safe.

* * * *

That a highly variable dose-response relationship

exists between SO, and particulate levels—and that

there is no thresho'd for health effects.

Consequently, the increases of sulfur oxides and particu-

lates from low levels to the national standards will have

serious health effects.

Similarly, the po'lutants omitted by the regulations

have been shown to have serious health effects at levels

which are often well below the national standards. For

example, an extensive statistical analysis of mortality

and morbidity rates in a number of metropolitan areas

showed a significant correlation between low levels of

nitrogen dioxide and increased rates of cancer and heart

disease.* The National Academy of Sciences has con-

cluded that “* * * the addition of any CO (carbon mon-

oxide) above background represents an additional stress

on persons with heart and artery disease.” * Photochemi-

1Carnow, “Sulfur Oxides and Particles: Effects on Health,” re-

printed in Proceedings of the Conference on Health Effects of Air

Pollutants, S. Rep. No.15, Senate Committee on Public Works, 93d

Cong., lst Sess. 262, 272 (1973).

? Hickey, et al., Ecological Statistical Studies of Environmental

Pollution and Chronic Disease in Metropolitan Areas of the United

States, Regional Science Research Institute Discussion Paper Series,

No. 35, pp. 56, 79, 80 (1970).

’ NAS, Supplemental Statement Concerning the Report of the

Conference on Air Quality and Automobile Emissions, p. 11 (July

29, 1975).

15

cal oxidant pollution is measured by ozone levels. Ozone

has been described as “one of the most acutely toxic gases

known * * *,” in a study which concluded that there is

no threshold level for this substance.’

In short, all of the six pollutants regulated by the

Clean Air Act are known to cause serious damage to

human health and welfare, necessitating the adoption of

standards to control them. Scientific information is grow-

ing that they also cause substantial harm at levels well

below those standards, even though that information

may not yet be adequate precisely to quantify the ef-

fects so as to change the standards. Thus exposure of

large areas of the country to massive increases in these

pollutants, through the designation of areas as Class III

and through the failure to control certain of these sub-

stances, may have a serious, damaging effect on the

health of a large number of people.

CONCLUSION

For the foregoing reasons, petitioners respectfully sub-

mit that this petition for a writ of certiorari should be

granted.

BrucE J. TERRIS

NATHALIE V. BLACK

1908 Sunderland Place, N.W.

Washington, D. C. 20036

(202) 785-1992

November 1, 1976

t Neuberger and Radford, “Review of Human Health Criteria

for Ambient Air Quality Standards in Maryland,” Department of

Environmental Medicine, Johns Hopkins University, pp. 6, 11-12

(1974).

la

APPENDIX

Civil Action Number 1031-72

[Filed May 30, 1972, James F. Davey, Clerk]

SIERRA CLUB, et al.,

Plaintiffs,

v.

RUCKELSHAUS,

Defendant.

PRELIMINARY INJUNCTION

It appearing to the Court that a Preliminary Injunc-

tion pending hearing and determination of plaintiffs’

request for a permanent injunction and other relief

should be issued because, unless defendant is enjoined

from approving portions of state implementation plans

permitting significant deterioration of air quality, plain-

tiffs may suffer immediate and irreparable injury, loss

and damage before the determination of this case on the

merits,

NOW, THEREFORE, IT IS ORDERED, that defend-

ant, his agents, officers, servants, employees, and attor-

neys, and any persons in active concert or participation

with him, be and they are, hereby enjoined until plain-

tiffs’ request for a permanent injunction and other relief

has been determined by this Court from, directly or in-

directly, approving any state implementation plan under

42 U.S.C. 1857c-5 unless he approves the state plan sub-

ject to subsequent review by him to insure that it does

not permit significant deterioration of existing air qual-

ity in any portion of any state where the existing air

quality is better than one or more of the secondary

standards promulgated by the Administrator. The Ad-

2a

ministrator shall complete this review of all the state

plans within four months of this order. The Adminis-

trator, shall within this four-month period, approve any

portion of a state plan which effectively prevents the

significant deterioration of existing air quality in any

portion of any state, and disapprove any portion of a

state plan which fails to effectively prevent the signifi-

cant deterioration of existing air quality in any portion

of any state.

The Administrator shall prepare and publish proposed

regulations, pursuant to 42 U.S.C. 1857¢c-5(c) as to any

state plan which he finds, on the basis of his review,

either permits the significant deterioration of existing

air quality in any portion of any state or fails to take

the measures necessary to prevent such significant de-

terioration. Such regulations shall be promulgated with-

in six months of this order.

This order shall be stayed until 9:00 a.m., May 31st,

1972.

/s/ J. G. Pratt

DATE 30 May 1972