Petition — Mont. Power Co. v. U.S.E.P.A.

Supreme Court brief1977

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IN THE

Supreme Court of the United States

OcrToBER TERM, 1976

No. 76 o 52 9a

Montana Power Company Et AL., Petitioners,

Unrrep States 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

[ List of Counsel on Inside Cover]

Passes oy Braon &. ADAMS Pantine, Inc., Wasnineron, D. C.

COUNSEL FOR PETITIONERS

Crnomnnati Gas & ELBeoTRIC

COMPANY

Tage CLEVELAND ELectric

ILLUMINATING COMPANY

COLUMBUS AND SouTHERN OHI0

Evectric COMPANY

Tar Dayton Power anv Licnt

CoMPANY

Kentucky Powmr Company

Onto Evison COMPANY

Onto Power CoMPANY

Wilson W. Snyder

Fuller, Henry, Hodge

& Snyder

1200 Edison Plaza

300 Madison Avenue

Toledo, Ohio 43604

Pactric Coat GasIFICATION

CoMPANY

K. R. Edsail

Jane C. L. Goichman

P.O. Box 54790

Terminal Annex

Los Angeles,

California 90054

MonTANA Power COMPANY

Paciric Power AND LIGHT

CoMPANY

PorTLAND GeNERAL ELECTRIC

CoMPANY

Pueer Sounp Power & Lieut

CoMPANY

WASHINGTON WaTer POWER

CoMPANY

I. Michael Greenberger

Shea & Gardner

734 15th Street, N.W.

Washington, D.C. 20005

TRANSWESTERN CoaL GASIFICA-

TION COMPANY

James W. McCartney

Norman D. Radford, Jr.

& Smith

2100 First City National

Bank Building

Houston, Texas 77002

Vinson, Elkins, Searls,

Connally

Page

Opinions BeLtow .........05:. Ee ee aa ae 2

JURISDICTION ..... edwesneekenee ss eiecene¢ueadceas 2

QUESTIONS PRRGBNTED .....ccccccccccccccccccecccces 2

Constirution, Statute anp Recuuations Invotvep ... 4

STATEMENT OF THB Case .....cccccccccccvcceccceces 5

SY rrr err TTT TT Tee 6

B. The Significant Deterioration Regulations .... 11

©. The Proceedings Below .........ccsccessees 15

D. Recent Attempts at Legislating a Specific Sig-

nificant Deterioration Provision ............. 20

Reasons ror GRANTING THE WRIT .........0.00000005 24

ES Cee tee eeu esis ch uadnes 60 60eneeeee 37

TE Cee Ae cuhebeeeseevebseseeesué ceeveeees la

i ei enc ce kia t edhe we hed sens eeee sone 53a

i tice l eee iee Se ddbs bedeanseduceeeeee 9la

Chi eee ci eeb backs checeeeeeccececas 95a

TT Bikes CESS OROK EO DENENCHOSS Cees eeeees 97a

a De ome cee ice adbeseenedereeeeses 113a

7 CITATIONS

Page

CAsEs:

Amalgamated Meat Cutters vy. Connally, 337 F. Supp.

737 (D.D.C. 1971) cet eeeeeeeeeeeeeeneneneeeees

City of Eastlake v. Forest City Enterprises, Inc., —

U.S. —, 44 U.S.L.W. 4919 (1976) .....cceeevees 25

Federal Energy Administration v. Algonquin, SNG,

— US. —, 44 U.S.L.W. 4883 (1976) ........006 25

Hancock v. Train, — U.S. —, 44 U.S.L.W. 476" 29, 90, -

National Asphalt Pavement Ass'n v. Train, — F.2d

—, 9 ERC 1109 (D.C, Cir, 1976) 2.0... c cee ees 37

Natural Resources Def. Council v. EPA, 489 ¥.2d 390

(5th Cir, 1974), rev'd in part, sub nom, Train vy.

Natural Resources Def, Council, 421 U.S, 60 (1975) 31

Neil v. Biggers, 409 U.S. 188 (1972) . 2... eee eens . 16

Sierra Club v. EPA, — ¥.2d —, 9 ERC 1129 (D.C, Cir,

BOTS) . ccccccccceccvccesccsceeeneseenueeeeen passim

Sierra Club v. Ruckelshaus, 344 F. Supp, 253 (D.D.C.

1972), aff’d per curiam, 4 ERC 1815 (D.C, Cir.

1972), aff'd by equally divided Court, sub nom.

Fri vy. Sierra Club, 412 U.S. 541 (1973) ....... passim

Train vy. Natural Resources Def, Council, 421 U.S. 60 _

(BOTS) .ccccccccccvecceese6estnu suena passim

Union Electric Company v. EPA, 515 F.2d 206 (8th

Cir. 1975), aff’d, — U.S. —, 44 U.S.L.W. 5060

(1976) .cccccccvccecccvcesssseeseueee enue wenn 31

Union Electric Company v. EPA, — U.S. —, 44 US,

LW. GOGO (1996) ..ccccccesscvensucesuunen 29, 30, 31

Yakus v. United States, 321 U.S. 414 (1944) ......... 25

Constitution, Statutes, Reautations anp Proposed

ReGuLations:

United States Constitution

Article I, Bestion ET ...cccccccccccscscceseeunees 4

Article IV, Geotion TV ....ccccccccccscccscseess 4

Fifth Amem@ment ...ccccccccccencestseneunenee 4

Tenth Amendment ...cccccscvcccccccvevscssess 4

Citations Continued iii

Page

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

EEE LE EOE SP EEE passim

The Clean Air Act of 1963, 77 Stat. 392 ........ 4,6,7

Air Quality Act of 1967, 81 Stat. 485 ......... 4, 6, 21

The Clean Air Act Amendments of 1970, 84 Stat.

EE ELE LEI IETF PPP passim

Environmental Protection Agency, ‘‘Approval and

Promulgation of Implementation Plans: Preven-

tion of Significant Air Quality Deterioration”’

38 F.R. 18985 (July 16, 1973) ............ 12, 13, 26

39 F.R. 30999 (August 27, 1974) ............ 12,13

39 F.R. 42509 (December 5, 1974) .......... passim

40 F.R. 2802 (January 16, 1975) ............. 2

40 F.R. 25004 (June 12, 1975) ................ 2

40 F.R. 42011 (September 10, 1975) .......... 2,4

Environmental Protection Agency, ‘‘Approval and

Promulgation of Plans,’’ 40 C.F.R. §§ 52.01(d)

ne bi nceccccceccccocececee 4

Environmental Protection Agency, ‘‘Approval and

Promulgation of Implementation Plans: Signifi-

cant Deterioration of Air Quality—Adding § 52.21”

37 F.R. 23836 (November 9, 1972) ............ 12

Environmental Protection Agency, ‘‘Prevention of

Significant Air Quality Deterioration,’’ 40 C.F.R.

Tee TT net cc ceceees 14

LeotsLative History :

Senate Bill

EE 20

Senate Hearings

Hearings on Implementation of the Clean Air Act

Amendments of 1970 before the Subcomm. on

Air and Water Pollution of the Senate Public

Works Comm., 92d Cong., 2d Sess., ser. 92-H 31

eeu e ene es ceoecccevcccccccces 11

7 All undesignated references to the U. 8. Code within this petition are to

the 1970 edition.

iv Citations Continued

Page

Senate Reports

S. Rep. No. 90-403, 90th Cong., Ist Sess. (1967)... 7-8

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) . .32, 37

S. Rep. No. 94-717, 94th Cong., 2d Sess. (1976) . passim

Senate Debate

122 Cong. Rec. No. 112, 8 12458 (1976) (daily ed.) 21

S 12469 21

S 12479 23

S 12480 21

No. 113, 8S 12543 22, 23

No. 114, 8 12701 21, 22

No. 115, S 12781 21

No. 118, S 12459 22

S 13140 21

S$ 13141 20

S$ 13152 21

S$ 13155 21

S 13156 21

S 13160 20, 21

S 13164 21

S 13182 21, 22

No. 119, S 13317 22

No. 120, 8 13519 21

No. 151, 8 17533 22

House Bill

ee SRE BO GM. 6 vc cece ccdvdsdecodtieeds 20

House Hearings

Hearings on Clean Air Act Oversight before the

Subcomm. on Public Health and Environment

of the House Comm. on Interstate and Foreign

Commerce, 92d Cong., 2d Sess., ser. 92-105

TEED anccrecesecderaasecsédaseevausiineses 11

House Reports

H. Rep. No. 91-1146, 91st Cong., 2d Sess. (1970).. 35

H. Rep. No. 94-1175, 94th Cong., 2d Sess. (1976) .21, 23

Citations Continued v

Page

House Debate

122 Cong. Ree. No. 119, H 8296 (1976) (daily ed.) 21, 22

H 8297 21

H 8298 21

H 8303 21

H 8306 21

H 8332 21

No. 134, H 9559 21

H 9562 21

H 9566 21

Conference Reports

H. Rep. No. 91-1783, 91st Cong., 2d Sess. (1970).. 35

H. Rep. No. 94-1742, 94th Cong., 2d Sess., reprinted

at 122 Cong. Ree. 150 (Pt. 2), at H 11959-94

ee GURU. I 4.66.06. s 00 dn ancenese vous aes 20

IN THE

Supreme Court of the United States

OcToBER TERM, 1976

No.

Montana Power Company Et AL., Petitioners,

Untrep Stares 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

Petitioners pray that a writ of certiorari issue to re-

view the judgment of the United States Court of Ap-

peals for the District of Columbia Circuit entered in

this proceeding on August 2, 1976.*

* This petition is filed on behalf of the Montana Power Com-

pany, Pacific Power and Light Company, Portland General Electric

Company, Puget Sound Power & Light Company, and the Wash-

ington Water Power Company, petitioners in No. 1763 below;

the Pacifie Coal Gasification Company and Transwestern Coal

Gasification Company, petitioners in No. 75-1371 below; The Dayton

Power and Light Co., Kentucky Power Company, Ohio Edison

Company, and Ohio Power Company, petitioners in No. 75-1663 be-

low; and the Cincinnati Gas & Electric Company, The Cleveland

Electric Illuminating Company, and Columbus and Southern Ohio

Electric Company, petitioners in No. 75-1664 below. Insofar

as petitioners can determine, the parties to the consolidated pro-

ceedings below that will be adverse respondents to the petition

are the United States Environmental Protection Agency, its Ad-

ministrator (Russell E. Train), Sierra Club, the Washington

Metropolitan Coalition for Clean Air, New Mexico Citizens for

Clean Air and Water, Oregon Environmental Council, Sally

Rodgers, John Tanton, Susan L. Moore, Stephen Winter, and the

States of New Mexico and Nevada. The remaining interested

parties below are automatically respondents to this petition, pur-

suant to this Court’s Rule 21(4), but, insofar as petitioners know,

they will not be adverse to this petition. These Rule 21(4) re-

spondents are listed in Appendix G hereto.

OPINIONS BELOW

The opinion of the Court of Appeals (Appendix A

hereto) has not yet been officially reported, but is un-

officially reported at 9 ERC 1129. That opinion re-

viewed regulations promulgated by the Environmental

Protection Agency, as amendments to state implemen-

tation plans under the Clean Air Act, which were pub-

lished in the Federal Register, together with an explan-

atory preamble, on December 5, 1974 (39 F.R. 42509),

and were revised on January 16, 1975 (40 F.R. 2802),

June 12, 1975 (40 FR. 25004) and September 10, 1975

(40 F.R. 42011). The regulations thus promulgated

amended Part 52 of 40 C.F.R., and are attached along

with the explanatory preamble as Appendix B hereto.

JURISDICTION

The judgment of the Court of Appeals (Appendix C

hereto) was entered on August 2, 1976. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the Environmental Protection Agency

has authority, under the Clean Air Act as amended, to

promulgate regulations amending State plans for the

implementation of the national ambient air quality

standards established pursuant to that Act so as to in-

clude therein provisions for the prevention of signifi-

cant deterioration of air quality that is better than is

required to comply with those standards, and to dis-

approve the implementation plans adopted by each cf

the individual States because they failed to include such

significant deterioration provisions ?

2. Assuming that the Environmental Protection

Agency does have such authority, whether the signifi-

cant deterioration regulations which it has promulgated

nonetheless are arbitrary or capricious or otherwise

violate the Clean Air Act, because:

(a) they attempt to prevent ‘‘significant deteri-

oration’’ through a classification scheme that is unre-

lated to any known, anticipated or quantifiable adverse

air quality effects ;

(b) they do not initially classify all lands as

Class III, rather than as Class I1, so as to at least place

the burden of obtaining and justifying a reclassification

of land upon those who seek to impose more stringent

limitations than are imposed by the national ambient

air quality standards;

(ec) they arbitrarily impose rigid incremental

limits for each classification which do not allow for

local conditions, which are implemented through model-

ing techniques that generally are inaccurate and are

virtually unworkable for many areas of the nation, and

which may be used up by unregulated new sources;

(d) they provide for reclassification of Federal

and Indian lands by Federal land managers and the

governing bodies of Indian Tribes, thereby treating

such landowners differently from other persons and

encroaching upon the responsibilities of the States,

which may have the effect of imposing more stringent

limitations upon adjoining lands up to 60 or more miles

from the boundaries of such Federal or Indian lands** ;

or because

(e) they were promulgated without compliance

with the procedural requirements specified in § 110 of

the Clean Air Act?

3. Assuming that the Environmental Protection

Agency does have such authority and its significant

** A question also is presented as to whether this aspect of the

regulations is ripe for review.

deterioration regulations otherwise comply with the

Clean Air Act, whether those regulations and the Act as

so construed are unconstitutional because :

(a) the Act does not provide any standards or

guidance for determining what constitutes ‘significant

deterioration”’ of the quality of air, as to the manner in

which it is to be prevented, or as to the extent to which

it is to be prevented, and therefore constitutes an un-

restrained delegation of legislative power to the En-

vironmental Protection Agency contrary to Article I,

Section I of the Constitution, and to the Fifth Amend-

ment thereto ;

(b) the regulations so restrict the use of private

property as to constitute an uncompensated ‘‘taking”’

in violation of the Fifth Amendment, and do not have

any rational relationship to the protection of public

health or welfare or other valid legislative purpose

contrary to the Fifth Amendment; or because

and otherwise encroach upon the powers reserved to the

States and to the people by the Tenth Amendment and

by Article LV, Section LV?

CONSTITUTION, STATUTE AND REGULATIONS

INVOLVED

The regulations being reviewed, 40 C.F.R. §§ 52.01

(d), (f), and 52,21 (1975), as amended, 40 F.R, 42011

(September 10, 1975), are set forth in Appendix B

hereto. The relevant provisions of the Constitution

and of the Clean Air Act, as amended, 42 U.S.C, § 1857

et seq., are set forth respectively in Appendices D and

K hereto. Relevant provisions of certain earlier ver-

sions of the Clean Air Act (77 Stat. 392 (1963) and

81 Stat. 485 (1967)) are set forth in Appendix F

hereto.

STATEMENT OF THE CASE

This case involves the interpretation and applica-

tion of the Clean Air Act, as amended, 42 U.S.C,

§§ 1857 et seq. In particular, this case involves the

issue of ‘‘significant deterioration,’’ an issue on which

this Court three years ago divided four-to-four in

Fri v. Sierra Club.’ In compliance with the district

court’s order in that earlier litigation, the Adminis-

trator of the Environmental Protection Agency (here-

inafter ‘“‘EPA’’) has disapproved plans adopted by

every State for the implementation of national prim-

ary and secondary ambient air quality standards and

has amended or revised those plans by promulgating

regulations which include therein provisions prevent-

ing ‘‘significant deterioration’? of the quality of air

that is cleaner than is required by the national primary

and secondary standards. Those actions by EPA have

been upheld by the court below in this proceeding.

This has been done even though the national ambient

air quality standards are prescribed by EPA under

§ 109 of the Clean Air Act at levels ‘requisite to pro-

tect the publie health’’ after ‘‘allowing an adequate

margin of safety’’ (primary standards) and ‘requis-

ite to protect the public welfare from any known or

anticipated adverse effects’? (secondary standards) ;

and even though § 110 of the Act provides that EPA

‘shall approve’? a State implementation plan that

meets eight specified requirements, none of which has

been contended or held to include the prevention of

' Sierra Club v. Ruckelshaus, 344 F, Supp. 253 (D. D.C., 1972),

aff'd per curiam, 4 ERC 1815 (D.C, Cir, 1972), aff'd by equally

divided Court, sub nom, Fri v, Sierra Club, 412 U.S. 541 (1973),

See pp. 11-12 infra. Petitioners were not parties to that litiga-

tion.

—

significant deterioration. The only asserted statutory

basis for the significant deterioration regulations is

the statement in the introductory ‘* Findings and Pur-

poses’’ section (§ 101) that one of the purposes of the

Act is ‘‘to protect and enhance the quality of the Na-

tion’s air resources so as to promote the public health

and welfare and the productive capacity of its popula-

tion.”’

A. The Clean Air Act

For the most part, the relevant provisions of the

Clean Air Act were enacted by the Clean Air Act

Amendments of 1970 (84 Stat. 1676), as summarized

below. However, the ‘‘Findings and Purposes”’ sec-

tion of the Act was first enacted in substantially its

present form by the Clean Air Act of 1963 (77 Stat.

392). This ineludes the finding that ‘‘the prevention

and control of air pollution at its source is the primary

responsibility of States and local governments,’’ which

now appears unchanged in §101(a)(3), 42 U.S.C.

§ 1857(a)(3). It also includes the statement of pur-

pose ‘‘to protect the Nation’s air resources so as to

promote the publie health and welfare and the produe-

tive capacity of its population’’, That statement, as

amended by the Air Quality Act of 1967 (81 Stat.

485) to add ‘‘and enhance the quality of’’ after ‘‘to

protect,’’ is now set forth in §101(b)(1), 42 U.S.C,

§ 1857(b)(1). As has been noted, that purpose clause

is the only provision of the Clean Air Act which has

been urged or held to provide a statutory basis for

a requirement of Federal action preventing signifi-

cant deterioration.

Since the major underlying premise upon which the

requirement of preventing significant deterioration

rests is the protection, rather than the enhancement,

of air quality that exceeds Federal standards, any such

requirement must come, if at all, from the ‘‘protect”’,

rather than from the ‘‘enhance’’, language. Therefore,

it would seem that if such a requirement exists, it must

have originated in 1963. Yet, as this Court pointed

out in Train v. Natural Resources Def. Council, 421

U.S. 60, 63-64 (1975), the only direct Federal interven-

tion authorized by the 1963 Act was ‘‘to abate inter-

state pollution in limited cireumstances’’ (emphasis

by the Court) ; namely, suits by the Attorney General

for the abatement of ‘pollution of air which is en-

dangering the health or welfare of persons’? in other

States (§5, 77 Stat. 396-99). Moreover, while the

1967 Act ‘‘increased the federal role in the prevention

of air pollution, by according federal authorities cer-

tain powers of supervision and enforcement,’’ under

that Act ‘‘the States generally retained wide latitude

to determine both the air quality standards which they

would meet and the period of time in which they would

so do.”’ Train v. Natural Resources Def. Couneil,

supra at 64. Insofar as we are aware, no one has even

suggested that there is any legislative history of the

1963 Act indicating that the Congress nonetheless in-

tended to require the prevention of significant deterio-

ration, and the legislative history of the 1967 Act also

provides no support for any such requirement.’

2 The court below did state that ‘‘to a lesser degree, the legis-

lative history of the’’ 1967 Act ‘‘expressed a policy of nondeterio-

ration’’ (App, A, at 18a). It cited (id., n, 30, p. 18a) a statement

in 8S. Rep. No, 90-403, 90th Cong., Ist Sess. (1967), which ‘‘ quoted

Senator Muskie for the proposition that it was necessary ‘to assure

the lessening of current levels of pollution and to prevent further

environmental deterioration in the future.’ ’’ That language was

taken from a sentence which stated in full; ‘‘ We must define the

[continued }

This brings us to the Clean Air Amendments of

1970 which, as this Court has stated, ‘sharply in-

creased federal authority and responsibility in the con-

tinuing effort to combat air pollution,’’ but ‘‘{n]one-

theless . . . explicitly preserved the principle’’ that

‘“*fejach State shall have the primary responsibility

for assuring air quality within the entire geographic

area comprising such State....’’’ Train v, Natural

Resources Def. Council, supra at 64 (quoting § 107(a),

42 U.S.C. § 1857e-2(a)).

Under the provisions of the 1970 Amendments,

EPA designates each air pollutant which in its

‘judgment has an adverse effect on public health or

welfare’? (§108(a)(1)(A), 42 U.S.C. § 1857e-3(a)

(1)(A)), and establishes national primary and sec-

ondary ambient air quality standards for each such

air pollutant (§ 109(a), 42 U.S.C. §1857ce-4(a)). A

primary standard is set at the level which EPA deems

‘requisite to protect the publie health’’ after ‘‘allow-

ing an adequate margin of safety.”’ A secondary

standard is set at the level which EPA deems ‘‘requis-

ite to protect the public welfare from any known or

anticipated adverse effects associated with the pres-

steps necessary to assure the lessening of current levels of pollu-

tion and to prevent further environmental deterioration in the fu-

ture,’’ and Senator Muskie went on in the next quoted sentence

to say that; ‘‘And recognizing the importance of the economic-

technological-environmental relationship we must develop the requi-

site framework to implement the desired goals.’’ 8. Rep. No, 90-

403, supra at 8-9 (emphasis added), No one has suggested that

the Congress in the 1967 Act did ‘‘define the steps necessary’’ to

prevent significant deterioration or ‘‘develop the framework to

implement’’ any ‘‘desired goal’’ in that regard, and no one has

suggested that there is any other legislative history of the 1967

Act indicating an intent on the part of Congress to require pre-

vention of significant deterioration.

a i ei eee

ence of such air pollutant in the ambient air’’

(§ 109(b), 42 U.S.C. § 1857e-4(b)).° EPA also pre-

scribes standards of performance for new stationary

sources which limit the emission of pollutants by new

facilities (including modifications of existing facilities)

to the level ‘‘achievable through the application of the

best syetem of emission reduction which (taking into

account the cost of achieving such reduction)’? EPA

‘determines has been adequately demonstrated’? (§ 111,

42 U.S.C. § 1857e-6).

Also under those provisions of the 1970 Amend-

ments, each State has ‘‘the primary responsibility for

assuring air quality within... such State by submitting

an implementation plan for such State which will spe-

cify the manner in which national primary and seeon-

dary ambient air quality standards will be achieved...

in such State’? (§ 107(a), 42 U.S.C. § 1857¢-2(a)).

Thus, ‘‘after reasonable notice and public hearings,”’

each State adopts plans for ‘‘implementation, mainte-

nance, and enforeement”’ of the primary and secondary

standards and submits such plans to EPA for approval

(§ 110(a) (1), 42 U.S.C, § 1857e-5(a)(1)). EPA “shall

approve”’ such a plan so submitted if it satisfies eight

criteria or requirements specified in § 110(a) (2) of the

Act, 42 U.S.C, § 1857¢-5(a)(2), and also ‘‘shall ap-

prove”’ any revision by a State of the plan if such revi-

* The 1970 Amendments also included the following explanation

of the term ‘‘welfare’’;

‘All language referring to effects on welfare includes, but

is not limited to, effects on soils, water, crops, vegetation, man-

made materials, animals, wildlife, weather, visibility, and

climate, damage to and deterioration of property, and hazards

to transportation, as well as effects on economic values and

on personal comfort and well-being.’’ § 302(h), 42 U.S.C,

§ 1857h(h).

sion meets those specified ‘requirements’? (§ 110(a)

(3) (A), 42 U.S.C, (Supp. V) § 1857e-5(a) (3) (A)). It

has never been contended by any litigant or held by any

court in this proceeding (or in the preceding litigation)

that any of those eight requirements consists of or in-

cludes the prevention of significant deterioration of

the quality of air which would remain as clean as or

cleaner than is required by the national ambient air

quality standards.’

Moreover, § 110 not only provides that EPA ‘shall

approve”’ State plans that satisfy those eight require-

ments, but authorizes EPA to propose ‘regulations

setting forth an implementation plan, or portion

thereof, for a State’’ only if the plan submitted by the

State (or any portion thereof) ‘tis determined by”’

EPA ‘not to be in accordance with the requirements of

this section’’ (emphasis added, § 110(¢)(1), 42 U.S.C,

§ 1857e-5(c)(1)). If such regulations are proposed

by EPA, it must hold publie hearings ‘within such

State on any proposed regulation’? unless the State has

done so, and final regulations can be promulgated to

become part of a State implementation plan only if the

State in the meantime has not voluntarily adopted and

submitted a ‘plan (or revision) which’? EPA ‘deter-

mines to be in accordance with the requirements of this

secltion”’ (ibid.; emphasis added),

Finally, we note that §116 of the Act, 42 U.S.C.

(Supp. V) § 1857d-1, expressly preserves the right of

the States to include in implementation plans more

‘stringent’? limitations upon air pollution than are re-

*To the contrary, those requirements are directed towards the

‘‘attainment’’ of primary standards ‘‘as expeditiously as prac-

ticable’’ and of secondary standards within ‘‘a reasonable time’’

(§ 110(a)(2)(A), 42 U.S.C. § 1857e-5(a)(2)(A)),

ee ee om

quired by the Act. And § 118, 42 U.S.C. § 1857f, re-

quires Federal departments, agencies and instrumen-

talities to ‘‘comply with Federal, State, interstate, and

local requirements respecting control and abatement of

air pollution to the same extent that any person is sub-

ject to such requirements,’’ except where exempted

therefrom by the President in certain limited cireum-

stances in which such an exemption is authorized by

that section.

B. The Significant Deterioration Regulations

Shortly after the passage of the Clean Air Act

Amendments of 1970, EPA construed the Act to require

approval of State implementation plans which com-

plied with the eight criteria specified in §110(a) (2),

and thus that agency did not find that it had the au-

thority under the Act to disapprove such plans for

failure to include a significant deterioration provision

or to promulgate regulations amending the plans to

include such a provision. When the Administrator

described this interpretation of the Act to the respon-

sible Congressional committees in January and Febru-

ary 1972,° the Sierra Club and other groups filed a suit

in the United States District Court for the District of

5 Tlearings on Clean Air Act Oversight before the Subecomm. on

Public Health and Environment of the House Comm. on Interstate

and Foreign Commerce, 92d Cong., 2d Sess., ser. 92-105 (1972)

at 530-31; Hearings on Implementation of the Clean Air Act

Amendments of 1970 before the Subcomm. on Air and Water

Pollution of the Senate Public Works Comm., 92d Cong., 2d Sess.,

ser. 92-H 31 (1972), Pt. 1, at 246-249, 271-276. We note that it

was that contemporaneous interpretation by EPA, rather than its

subsequent actions in response to court orders, which is entitled

to weight with the Court and to be accepted if it constitutes a

**reasonable’’ interpretation of the Act, even if it is not the ‘‘only

one’’ that EPA ‘‘permissibly could have adopted ....’’ Train

v. Natural Resources Def. Council, supra at 75.

Columbia contesting that position. That court rejected

EPA’s construction in this regard, ordered EPA to

disapprove plans insofar as they did not ‘effectively

prevent significant deterioration of existing air qual-

ity,”’ and directed EPA to propose regulations for the

inclusion in the plans of such significant deterioration

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

953 (D. D.C., 1972). The District of Columbia Cireuit

affirmed per curiam on the basis of the opinion below,

4 ERC 1815 (1972), and after granting a petition by

the Government for writ of certiorari, this Court

affirmed without opinion by an equally divided Court.

Fri v. Sierra Club, 412 U.S. 541 (1973).° Petitioners

were not parties to that proceeding.

In response to that decision, EPA disapproved the

implementation plans of every State insofar as they

failed to provide for the prevention of significant deter-

ioration (37 F.R. 23836); issued an initial notice of

proposed rulemaking (38 F.R. 18985) and held public

hearings at six locations (but not in every State) ; is-

sued revised propesed regulations (39 F.R. 30999) ;

and, on December 5, 1974, published its final significant

deterioration regulations (39 F.R. 42509). In propos-

ing such regulations, EPA stated that it did not regard

the Ruckelshaus decision as ‘‘definitive’’ in view of

this Court’s equal division; and that EPA therefore

‘‘adheres to the view ... that the Act does not require

EPA or the States to prevent significant deterioration

® Thus the only opinion in that case was that of District Judge

Pratt. As was true of the court below in this case, he relied en-

tirely upon the ‘‘protect and enhance’’ language of the Findings

and Purposes section as the statutory basis for the decision, and

sought to support his decision by reference to legislative history

of the 1970 Amendments. 344 F. Supp., at 255-256.

2 sheers nw

of air quality,’’ and was acting only because of ‘‘the

preliminary injunction issued by the District Court”’

(39 F.R., at 18986).

In proposing and promulgating these regulations,

EPA was faced with the fact that the courts in the

Ruckelshaus case had not determined ‘‘ what constitutes

significant deterioration and exactly how it will be pre-

vented”’ (39 F.R., at 18986). So, too, the ‘protect and

enhance”’ statutory language and the legislative history

relied upon similarly provided no guidance, except in-

sofar as they might imply that all degradation of air

(and thus all economie growth) should be prevented—

which no one contended to have been contemplated by

the Congress (39 F.R., at 18987). Furthermore, since

the national ambient air standards are intended to pre-

vent all ‘‘demonstrable or predictable adverse effects

which can be quantitatively related to pollutant concen-

trations in the ambient air,”’ k PA concluded that “‘sig-

nificant deterioration must necessarily be defined with-

out a direct quantitative relationship to specifie adverse

effects on public health and welfare’? (39 F.R., at

18987). Henee, any judgment of what deterioration

would be significant ‘‘must be essentially subjective”’

(39 F.R., at 18988), based upon ‘‘consideration of vary-

ing social, economic, and environmental factors”? (39

F.R., at 31001), and ‘‘[a]ny policy to prevent signifi-

cant deterioration involves difficult questions regard-

ing how the land in any area is to be used’’ (ibid.).

The final regulations apply the signifeant deterior-

ation provisions to two pollutants: particulate matter

and sulfur dioxide. In view of the considerations out-

lined above (see 39 F.R., at 42510; App. B, at 55a),

EPA established a system for classifving the lands

within a State. In Class I areas, ‘‘ practically any’’ in-

crease in the levels of those pollutants would be pro-

hibited (and thus practically any economic growth) ; in

Class: II areas, somewhat larger increases in the levels

of those pollutants would be allowed (but significantly

less than would be allowed by the national standards)

so that in EPA’s judgment ‘‘moderate well-controlled

growth’’ would be permissible; and in Class II! areas,

the level of those pollutants (and thus economic

growth) could be increased up to the level allowed by

the national standards (ibid.). Jlowever, the regula-

tions prohibit the construction of a new source which

‘‘would violate an air quality inerement either in the

area where the source is to be located or in any neigh-

boring area in the State;’’ accordingly, a power plant

located in a Class IT area might violate Class I restric-

tions in areas as much as ‘‘60 or more miles away’’ so

that the effeet of a more restrictive classification ‘‘ex-

tends well beyond”’ its ‘‘boundaries into the adjacent

areas”’ (39 F.R., at 42512; App. B, at 66a-67a).

The regulations initially place all areas in Class II,

because EPA ‘‘continues to feel that an initial Class Il

designation represents the most reasonable compromise

between’ the positions urged by industrial groups, on

one hand, and environmental groups on the other hand

(ibid.). They established a procedure to be adminis-

tered by the individual States, subject to review by

EPA, which is intended by EPA to allow such States

‘‘to reclassify any area to accommodate the social, eco-

nomic, and environmental needs and desires of the pub-

lic’? (39 F.R., at 42510; App. B, at 55a). Such a re-

classification cannot be approved, however, unless the

State assumes EPA’s obligation to implement the regu-

lation’s new source review requirements discussed be-

low or receives a waiver from EPA in this regard (40

Wake dd Ate

tl caetars war arb een ©

C.F.LR. § 52.21(¢) (3) (vi) (a), (f); App. B, at 81a-83a).

In addition, Federal land managers and Indian govern-

ing bodies can reclassify Federal or Indian lands with-

in their respective jurisdictions, subject to consultation

with the State or States involved and review by EPA,

but Federal land managers may only adopt a more re-

strictive classification (7.¢., Class I rather than Class

IIT). See 39 F.R., at 42513; App. B, at 69a-70a). The

restrictions upon increments of pollutants in the three

classifications are implemented by review of proposed

new stationary sources, construction of which is to be

prohibited if such an increment will be violated even if

the new source will use the best available technology as

required by § 111 of the Clean Air Act. See 39 F.R.,

at 42510; App. B, at 55a.

C. The Proceedings Below

Some 14 separate petitions were filed in various

courts of appeals to review the significant deterioration

regulations, pursuant to §307(b)(1) of the Aet, 42

U.S.C. § 1857h-5(b) (1), most of which were filed by

multiple parties. All those not filed in the District of

Columbia Circuit were transferred thereto, and that

court consolidated the cases for briefing and argument.

The Court of Appeals upheld the validity of those

regulations. Its August 2, 1976 opinion was written by

Judge Wright, who was joined by Judge Robinson.

Judge Wilkey ‘‘concur[red] in the result only’? with-

out writing a separate opirion (App. A, at 5la).

The Court of Appeals generally applied the ‘‘arbi-

trary and capricioss” standard of the Administrative

Procedure Act, which it deemed to require “that ageney

action be affirmed if a rational basis exists therefor’

(App. A, at 15a). But in regard to the ‘‘question

whether the Clean Air Act should be interpreted to pro-

hibit significant deterioration of air cleaner than the

national standards,’’ which ‘‘is necessarily the first level

of analysis,’’ the Court of Appeals ‘‘require[d] the

clearest showing that Sierra Club v. Ruckelshaus was

incorrectly decided, since Judge Pratt’s decision was

affirmed by both another panel of this court and an

equally divided Supreme Court”? (id., at 16a-17a).

Thus, the court below in effect rejected the approach

followed by this Court, in Train vy. Natural Resources

Def. Council, supra at 74-75, under which EPA’s ini-

tial interpretation of the Act, rather than revised regu-

lations which it issued in conformity with prior court

decisions to the contrary, was entitled to ‘‘accept[ ance |

by the reviewing courts’’ if ‘‘reasonable,’’ even if it

was not ‘‘the only one [EPA] permissibly could have

adopted ....’’’ See n.5, p. 11, supra.

After reconsidering the decision in Sierra Club v.

Ruckelshaus under the standard of review thus enunci-

ated, the Court of Appeals found ‘‘no substantial reason

to question”’ its ‘continuing validity’’ (App. A, at 29a;

generally, at 16a-29a). As we have noted, the only stat-

utory basis asserted for the holding that the Clean Air

Act requires the prevention of significant deterioration

was the ‘‘protect and enhance”’’ language in § 101(b)

(1), setting forth one of the purposes of the Act (id., at

17a-18a). The primary reliance of the court below, how-

7™The prior decisions involved in Train (by four courts of ap-

peals) had not been affirmed by an evenly divided Supreme Court,

but of course affirmances by an equally divided Court are without

precedential effect. See, e.g., Neil v. Biggers, 409 U.S. 188, 190-92

(1972). Nonetheless, the Court of Appeals below was entitled to

accord precedential effect to its own prior decision (if, as it con-

cluded, subsequent decisions by this Court were not to the con-

trary), so that its approach may have been appropriate in that

court even though it would not be appropriate in this Court.

ee ee et

SIR eee 8 i Ball ee *

owe

ever, was placed upon certain legislative history of the

1970 Amendments (id., at 18a-23a), which was thought

to afford ‘‘every indication’’ that Congress intended in

1970 to continue a policy of prevention of significant

deterioration of air quality (id., at 23a). The Court of

Appeals a!so thought that its interpretation was bol-

stered by ‘‘recent congressional statements’? upon pend-

ing legislation (7d., at 23a), and by the acceptance of

Sierra Club v. Ruckelshaus ‘in a number of other cir-

euits’’ (id., at 24a)." And, it rejected contentions by

these petitioners that the ‘‘shall approve”’ language in

§ 110(a)(2) of the Act, as interpreted and applied by

decisions of this Court subsequent to Sterra Club vy,

Ruckelshaus, necessitated a contrary holding (id., at

24a-27a).

In addition, the Court of Appeals rejected a number

of contentions, some by environmentalists and some by

industry petitioners, to the effect that the signifieant

deterioration regulations are arbitrary and capricious

or otherwise invalid, even assuming that the Clean Air

Act requires prevention of significant deterioration

(App. A, at 29a-48a).

With respect to such contentions by Sierra Club, the

Court of Appeals held (1) that EPA’s exclusion of four

additional ‘pollutants which have an adverse effect on

public health or welfare’ (id., at 29a) ‘‘was rational

8 We note that the significant deterioration issue had not been

fully briefed in those cases. For example, one of those cases

was the decision of the Fifth Cirenit which was before this

Court in Train vy. Natural Resources Def. Council, supra. The

petitioner’s brief in ibe Fifth Circuit disenssed the significant

deterioration issue in a short two-page argument which simply

asserted that the issue had been settled by Sierra Club v. Ruckel-

shaus, and EPA did not respond at all to that argument in its

brief.

18 -

and based on consideration of the relevant factors”’

since EPA ‘does not have technology or modeling tech-

niques rationally to regulate emissions [of those pollut-

ants] on a case-by-case basis’? (id., at 31a; generally,

at 29a-31la); (2) that the regulations were not invalid

on the grounds that Class IT and Class ITI allow signifi-

cant deterioration and are based upon considerations

other than air quality, sinee ‘it was a rational poliey

decision that the significance of the deterioration of air

quality should be determined by a qualitative balancing

of clean air considerations against the competing de-

mands of economic growth, population expansion, and

development of alternative sources of energy’ (id., at

33a; generally, at 32a-34a); and (3) that “[i]t was a

rational poliey decision to limit the instant regulations

to prospective concerns only’’ (id., at 35a) since

‘inclusion of the earlier construction would limit

practical use of the regulations to regulate future de-

velopment”’ (id., at 35a; generally, at 34a-36a),°

With respect to the contentions by industry petition-

ers, the Court of Appeals held (1) that the regulations

need not be related to anticipated adverse effeets on

publie health or welfare, because ‘* HPA has acted rea-

sonably in permitting each state ... to develop a work-

able definition of significant deterioration”? based upon

its ‘‘evaluation of the relative importance of the eom-

peting interests’? (App. A, at 40a-41a; generally, at

39a-41a); (2) that the conceded inadequacy of the com-

*In addition, the court below rejected contentions by Sierra

Club that EPA erred in providing within its ‘‘signifieant deterio-

ration’’ regulations for preconstruction review of new stationary

sources using an industry-wide, rather than case-by-case, pollution

control formula under the new source performance standards pro-

vided therein, where applicable, and in providing for such review

with regard to only ‘‘significant’’, rather than all, new sources

(App. A, at 35a-39a).

ee EE ——

puter modeling techniques prescribed by the regulations

“to predict with precision what effect a proposed new

souree will have on the ambient air, and therefore on

the allowable increments for a given region’’ (id., at

41a), was not ‘‘at this time... a substantial objection”’

(id., at 42a), since the Court had ‘no basis on whieh to

question EPA’s judgment’ that its “predictive tech-

niques’? ** ean be used in comparing the relative impact

of a source’ ”’ (id., at 41a); and (3) that EPA was not

required to follow the procedures preseribed in § 110

tions revising State implementation plans, since ‘the

requirement of prevention of significant deterioration

does not fit neatly into the statutory seheme, as it is not

expressly included in Section 110 of the Act’ (id.,

at 44a; generally, at 42a-45a)."

The Court of Appeals did not decide the merits of a

contention by industry petitioners that the regulations

violated the Clean Air Act insofar as they authorized

Federal land managers and the governing bodies of

Indian Tribes to reclassify Federal and Indian lands,

Rather, the court below held that that issue ‘tis not yet

ripe for review”’ (id., at 47a; generally, at 45a-48a),

Finally, the Court of Appeals rejected contentions by

industry petitioners that the Clean Air Act is uncon-

stitutional, insofar as it may be held to authorize the

significant deterioration regulations, on the grounds

that the Act does not provide any standards or guidance

The court below did not directly address a contention by in-

dustry petitioners that all areas initially should be placed in

Class II], or the reverse contention by Sierra Club that all areas

initially should be placed in Class I, rather than in Class II,

However, those contentions obviously were rejected when the regu-

lations were upheld,

as to the manner or extent of the prevention of signifi-

cant deterioration; that the significant deterioration

regulations do not have any rational relatiouship to the

publie health or welfare; that the regulations so limit

the use of privately owned (and also State owned) land

as to constitute an unconstitutional taking; and that the

regulations entrench upon powers reserved to the

States (App. A, at 48a-50a).

D. Recent Attempts at Legislating a Specific Significant

Deterioration Provision

Both the Senate and the House recently passed

hills CS, 8219 and H.R. 10498, 94th Cong.) which,

inter alia, would have amended the Clean Air Act

so as to inelude detailed substantive provisions con-

cerning the prevention of significant deterioration,

The significant deterioration provisions contained in

those bills differed substantially from each other,

from the regulations promulgated by EPA, and

from the recommendation of the President who urged

that “the most appropriate course of action would be

to amend the Aet to preelude application of all signifi-

eant deterioration provisions until sufficient informa-

tion concerning final impact can be gathered”? in view

of their ‘‘potentially disastrous effects on unemploy-

ment and on energy development ....’?"' A Confer-

ence committee reported a compromise provision, H,

Rep. No, 94-1742, reprinted at 122 Cong. Ree, No, 150

(Pt. 2), at H 11959-94 (daily ed.); see specifically TI

11970-73, 11987-88. But, the Conference bill failed of

passage in both Houses prior to adjournment sine die.

——_—

1122 Cong. Ree, No. 118, at S 13141 and 8S 13160-61 (identical

letters from the President to the chairmen of the House and

Senate committees which handled the pending bills) (daily ed.).

As the court below noted (App. A, at 23a), the com-

mittee reports on the bills contained statements to the

effect that a “policy” of preventing significant deteri-

oration was incorporated into the 1967 Air Quality Act

by enactment of the ‘‘protect and enhance’? purpose

clause and was not altered by the 1970 Amendments.

Similar statements were made during the debates by

proponents of the significant deterioration provisions,"

while opponents were equally clear that no such ‘‘pol-

icy”? had ever been intended by the Congress.”

Moreover, even those who supported the view that

such a ‘policy’? was included within the ‘protect and

enhance clause’? conceded that the ‘Congress did not

provide specifie guidelines for a nondegradation pro-

12 See 122 Cong. Ree. No, 112, at S 12480 (Sen, Muskie) (daily

ed.) ; No. 114, at S 12701 (Sen, Tunney) (daily ed.) ;No, 115, at

§ 12781 (Sen. Buekley) (daily ed.) ; No, 118, at S 13182 (Sen.

Eagleton) (daily ed.) ; No, 119, at Hl 8296, 8297 (Rep, Rogers), i

8303 (Rep, Heinz), and H 8382 (Rep, Bingham); No. 134, at TI

9562 (Rep, Preyer) (daily ed.).

8 See H. Rep. No, 94-1175, 94th Cong., 2d Sess, (1976) at 445.

446 (Rep. Satterfield) and 488-489 (Reps. Devine, Broyhill,

Carter, Brown, Skubitz, Collins and MeCollister); 122) Cong.

Ree. No. 112, at S 12458 (Sen. Seott) (daily ed.); No.

118, at S 13140 (Sen. Moss), 8 13152 (Sen, Fannin), 8 18155

(Sen. Garn), S 18156 (Sen, Curtis), and S 15160) (Sen,

Helms) (daily ed.) ; No, 119, at Hl 8297 (Rep. Broyhill), HE 8298

and H 8306 (Rep, Satterfield) (daily ed.); No, 120, at S 13519

(Sen, Seott) (daily ed.) ; No, 134, at TH 9559 (Rep. Satterfield),

Hl 9566 (Rep. Hagedorn) (daily ed.). In addition, some

of the proponents of the proposed provisions also coneeded that

it constituted a new program without any basis, even as to ‘*pol-

iey,’’ in the existing law. See S. Rep. No, 94-717, 94th Cong., 2d

Sess. (1976), at 105 (Sen. Gravel) and 118 (Sen MeClure); 122

Cong. Ree, No, 112, at S 12469 (Sen Gravel) (daily ed.); No.

118, at S 13164 (Sen. MeClure) (daily ed.).

gram;’’"' that the ‘‘question of exactly what consti-

tutes significant deterioration had not been directly

addressed by the Congress;’’’ that the Clean Air Act

‘loess not clearly spell out a nationally uniform proe-

ess by which the air quality of clean air regions will be

preserved ;’’'" and that, while the 1970 Amendments

‘gave careful consideration to the need for cleaning

up dirty areas,”’ that Act “largely overlooked the

need to develop a clear and workable policy to protect

our National’s vast clean air regions.’’' So, too, it

was urged by proponents that the Congress has a Con-

stitutional “responsibility to define national policy’? "*

and that “*KPA’s current regulations are simply not

an adequate response to this problem.’’" Aecording

to Senator Muskie, the Senate ‘‘committee unani-

mously agreed that the prevention of deterioration of

clean areas should be resolved by the Congress aud not

by the courts.’’ ”

Furthermore, it was agreed by proponents, as well

as by opponents, that the significant deterioration issue

122 Cong. Ree, No, 118, at S 13182 (Sen, Eagleton) (daily

ed.).

" 122 Cong, Ree, No, 112, at 8 12459 (Sen, Randolph) (daily

ed),

122 Cong. Ree, No, 119, at H 8296 (Rep. Rogers) (daily ed.),

'? 122 Cong. Ree, No, 114, at S 12701 (Sen. Tunney) (daily ed.),

S$, Rep, No, 94-717, supra at 115 (Sens. Buekley and Stafford),

122 Cong. Ree. No, 119, at 8 13317 (Sen Muskie) (daily ed.).

122 Cong. Ree, No, 113, at S 12543 (daily ed.), Senator

Muskie commented as follows during the floor debate about the

conference compromise on significant deterioration : ‘‘ Witnesses on

both sides [, industry and environmentalists,] came to us and

pleaded, ‘Take this out of EPA's hands; take this out of the courts,

(Giive us a clear policy so we shall know where we are going.’ "’

122 Cong. Ree, No, 151, at 8 17533 (daily ed.).

——— =

is very important, complex and controversial, in view

of its broad social and economic implications,’ so as

to require thorough consideration by the Congress.”

H. Rep. No. 94-1175 devoted over 7% pages (pp. 4-7,

83-151) and 8S, Rep, No. 94-717 devoted 13 pages (pp.

3, 16-27) to the significant deterioration issue (exclu-

sive of additional and dissenting views), and most of

the lengthy floor debates on the bills and on the Con-

ference compromise related to that issue despite the

fact those bills contained other controversial provi-

sions (such as those relating to automobile emissions).

In contrast, despite the assertions by some of the

proponents of the recent legislation that the ‘protect

“1 or example, Senator Muskie referred to that issue as being

‘the most diffieult . . . which the committee was asked to re-

solve’? (122 Cong, Ree, No, 112, at S 12479 (daily ed.) ), approv-

ingly quoted testimony that it ‘‘is far too significant an issue to be

determined, as it has been thus far, on narrow leyal grounds by

the judiciary’’ with ‘‘economic and social implications . . . so

broad that it cannot and should not be determined by an inde-

pendent regulatory agency in a rulemaking proceeding’’ (14., at

S 12480), and described that issue as constituting ‘the most con-

troversial aspect’ of the pending legislation (id., No, 113, at

S$ 12543 (daily ed.)). The debates are peppered with generally

similar comments by many other legislators,

*3 See, ¢.g., H. Rep, No, 94-1175, supra, which states ‘‘that the

issue of prevention of significant deterioration perhaps is unique

in that it is one of the most carefully and completely studied

issues to come before Congress in many years’’ (p, 149), refers

to numerous hearings, studies and committee markup sessions re-

lating to that issue (pp. 149-150), and notes that the committee's

bill includes a requirement for a report by EPA within two years

‘‘on the progress in and any problems associated with carrying

out’’ the significant deterioration provisions (p. 151). Much of

the floor debate in both the House and the Senate was centered

upon whether even further study of the issue should be had before

enactment of significant deterioration provisions,

————— a

and enhance’? purpose clause of the Clean Air Act was

intended to embody a ‘‘poliey’’ of preventing signifi-

cant deterioration, there is no mention of such an in-

tent or policy in the legislative history of the 1963 Act

which first enacted the ‘protect’? language or of the

1967 Air Quality Act which added the ‘‘enhance’’ lan-

guage, See p. 7, supra. No member of Congress

attributed such an intent or policy to the ‘‘protect and

enhance clause’ in the hearings, reports or debates

that preceded enactment of the 1970 Amendments,

See p. 35, infra. And, it indeed seems “inconceivy-

able,’? as Senator McClure stated, ‘‘that the Congress

would have made a major change in existing law using

the ‘Findings and Purposes’ Section of the Act and

without providing any guidance or explanation in the

body of the Act.’’ S. Rep. No. 94-717, supra at 118,

Finally, when Congress undertook in the last Congress

to deal explicitly with the significant deterioration

issue, it did not put its reliance upon a general pur-

pose clause, but spelled out substantive measures and

detailed standards to deal with this complex and con-

troversial] issue.

REASONS FOR GRANTING THE WRIT

This Court already has recognized that it should re-

view and decide the basic statutory issue of whether

the Clean Air Act authorizes and requires EPA to

amend State implementation plans so as to prevent

significant deterioration of air in circumstances where

the quality of the air will remain as good as or better

than is required by national ambient air quality stand-

ards designed to avoid all known or anticipated ad-

verse effects of air pollution upon the public health or

welfare. While the grant of certiorari in Sierra Club

v. Ruckelshaus (409 U.S. 1124 (1973)) unfortunately

did not result in a definitive resolution of that issue,

because of the even division of the Court, the impor-

tance of and need for such a decision remains.

Indeed, the importance of reviewing and deciding

this case may be even greater at this juncture because,

if the Court should agree with the decision below on

the basic statutory question, important and debatable

issues would be presented as to what constitutes sig-

nificant deterioration and how it can be prevented in

a manner consistent with the Act and the Constitution.

This is particularly true since EPA, when promulgat-

ing the regulations at issue, concededly found no guid-

ance in the Clean Air Act or its legislative history

(see p. 13, supra). Plainly, regulations which

utilize that Act to establish a mechanism for land use

planning restricting future growth and development

*3This Court has recently reaffirmed the principle that ‘‘a

congressional delegation of power to a regulatory agency must

be accompanied by discernible standards, so that the delegatee’s

action can be measured for its fidelity to the legislative will.

See, ¢.g., Yakus v. United States, 321 U.S. 414 (1944); Amalga-

mated Meat Cutters v. Connally, 337 F. Supp. 737 (D.C., 1971).

Cf. Federal Energy Administration vy. Algonquin, SNG, — US.

— [, 44 U.S.L.W. 4883] (1976)."’ City of Eastlake v. Forest City

Enterprises, Inc., — U.S. —, —, 44 U.S.L.W. 4919, 4921 (1976).

As EPA conceded in promulgating its regulation, there are no

discerni™le standards for ‘‘significant deterioration’’ within the

**prote., and enhance’’ clause—a point dismissed by the court be-

low (App. A, at 50a) in two sentences. Indeed, if such a com-

plex and controversial program can emanate from the term ‘‘pro-

tect and enhance,’’ there is no limit to the types of air pollution

measures that would be authorized by that clause. And, if ‘‘pro-

tect and enhance’’ language is that broad, one wonders why EPA

ever needed any of the other specific legislative authority granted

to it within the lengthy Clean Air Act.

of much of the country,” and which are unrelated to

known or anticipated adverse effects from air pollution

upon either the public health or public welfare, are

very important as well as being of very questionable

legality. As EPA stated in proposing its regulations

(38 F.R. 18986), they ‘‘will have a substantial impact

on the nature, extent, and location of future industrial,

commercial, and residential development throughout

the United States,’’ and ‘‘could affect the utilization

of the Nation’s mineral resources, the availability of

employment and housing in many areas, and the costs

of producing and transporting electricity and manu-

factured goods.” *

We do not know, of course, why four members of

this Court voted to affirm the decision belew in Sierra

Club v. Ruckelshaus, or the identity of those members.

But whatever those reasons may have been at the time,

we believe that the entire Court, after further consid-

eration of the Clean Air Act in three subsequent cases,

has construed that Act in a manner that is inconsistent

with the decision in Sierra Club v. Ruckelshaus and

the decision by the court below in this case with respect

to the central issue of whether the Act requires EPA

to disapprove State implementation plans and promul-

gate regulations so as to prevent significant deteriora-

tion. In view of the obvious importance of this case,

** According to S. Rep. No. 94-717, supra at 21, the **majority

of the land mass of the United States has air quality cleaner than”’

is required by the national ‘‘ambient standards.”’

** The great importance of this case was recognized in the

court below by Sierra Club, as well as by EPA and the industry

petitioners. Both the President and the Congress have recognized,

in connection with the legislation which failed of passage in the

last Congress, the importance of whether and how significant de-

terioration is to be prevented (see pp. 20, 22-23, supra).

we see no need in this petition to demonstrate why the

court below erred on other issues which were not in-

volved in Sierra Club v. Ruckelshaus. We shall never-

theless indicate briefly our reasons for believing that

the decision below is wrong on the basic issue of statu-

tory construction.

It should be recalled, in appraising the significance

of those three subsequent decisions by this Court, that

§ 110(a)(2) of the Clean Air Act in terms provides

that EPA ‘‘shall approve’’ State implementation plans

that comply with eight specified criteria or require-

ments; that § 110(a)(3)(A) in terms provides that

EPA ‘shall approve’’ revisions of such State imple-

mentation plans that comply with those eight require-

ments; that § 110(¢)(1) authorizes EPA to propose

and promulgate regulations amending a State imple-

mentation plan only when the plan is not ‘tin aeccord-

ance with”’ those eight requirements; and that it has

neither been contended nor held in this litigation that

any of those eight criteria or requirements include

the prevention of significant deterioration. See pp.

9-10, supra.

In Train v. Natural Resources Def. Council, 421 U.S.

60 (1975), the issue involved whether EPA was re-

quired, by § 110(a) (3) (A), to approve variances from

emission limitations specified in State implementation

plans as “revisions” of such plans. Those variances

would permit more air pollution than otherwise would

be permitted, but the implementation plan as so re-

vised nonetheless would attain and maintain the na-

tional ambient air quality standards and otherwise

comply with the eight requirements specified in § 110

(a)(2). In holding that “* the revision mechanism of

§ 110(a) (3) is available for the approval of those vari-

ances which do not compromise the basic statutory

mandate that... the national primary ambient air

standards be attained” (id., at 99), this Court pointed

out that under § 110(a)(3) ‘‘Ageney approval is sub-

ject only to the condition that the revised plan satisfy

the general requirements applicable to original imple-

mentation plans’’ (id., at 80), and that (id., at 79) :

“Under § 110(a)(2), the Agency is required to

approve a state plan which provides for the timely

attainment and subsequent maintenance of ambi-

ent air standards, and which also satisfies that sec-

tion’s other general requirements. The Act gives

the Agency no authority to question the wisdom

of a State’s choices of emission limitations if they

are part of a plan which satisfies the standards of

§ 110(a) (2), and the Agency may devise and pro-

mulgate a specific plan of its own only if a State

fails to submit an implementation plan which satis-

fies those standards. § 110(¢).’’ (Emphasis by

the Court.)

The only dissenter (without opinion) was Mr. Justice

Douglas, and only Mr. Justice Powell did not partici-

pate in the decision (id., at 99).

The Court’s conclusion that the Act requires EPA

to approve State implementation plans and revisions

thereof which provide ‘for the timely attainment and

subsequent maintenance of ambient air standards”

and otherwise satisfy the eight requirements specified

in § 110(a)(2) was reaffirmed in two later decisions.

In Hancock v. Train, — U.S. —, 44 U.S.L.W. 4767

(1976), this Court, when deciding (over the dissent of

Justices Stewart and Rehnquist (id., 4777) ) that § 118

does not require Federal installations to abide by the

permit requirements of State implementation plans,

said (id., at 4768): *‘EPA [is] required to approve

each State’s implementation plan as long as it was

adopted after public hearings and satisfied the condi-

tions specified in § 110(a)(2).” And, while holding

in Union Electric Company V. Environmental I rotec-

tion Agency, — U.S. —, 44 U.S.L.W. 5060 (1976), that

courts may not review and overturn EPA s approval

ofa State implementation plan on the basis of ‘claims

of economic and technological infeasibility ”’ since EPA

itself cannot ‘‘consider such claims in approving or re-

jecting a state implementation plan’”’ ( id., at 5065;

generally, at 5063-5065), this Court pointed out that

§ 110(a) (2):

‘sets out eight criteria that an implementation

plan must satisfy, and provides that if these cri-

teria are met and if the plan was adopted after

reasonable notice and hearing, the Administrator

‘shall approve’ the proposed state plan. The

mandatory ‘shall’ makes it quite clear that the

Administrator is not to be concerned with factors

other than those specified, Train v. NRDC, 421

U.S., at 71 n. 11, 79, and none of the eight factors

appears to permit consideration of technological

or economic infeasibility. Nonetheless, if a basis

is to be found for allowing the Administrator to

consider such claims, it must be among the eight

criteria, and so it is here that the argumcat 1s

foeused.’’ (Emphasis added.)

All members of the Court joined in that opinion. And,

we repeat, no one in this litigation has contended—and

the court below did not hold—that there is a basis

for requiring State plans to provide for the prevention

of significant deterioration ‘‘among the eight criteria

specified in § 110(a) (2).

The court below rejected this Court’s interpretation

of §110(a)(2) as mandating approval by EPA of

State implementation plans that satisfy the eight re-

quirements specified therein, regardless of other con-

siderations, on the ground that the Train and Union

Electric cases “did not consider the issue of nonde-

terioration”’ or ‘the significant deterioration of air

cleaner than the national standards” (App. A, at 26a,

27a). As a matter of fact, however, Train was not con-

cerned only “with air pollution below [i.c., dirtier

than] national standards” (App. A, at 26a). It also

involved variances which would permit cleaner air to

deteriorate to the level of the national standards.” Tn

any event, this Court’s acceptance in Hancock and

Union Electric of the conelusion in Train that the

‘shall approve”? language is mandatory, and the ap-

plication of that interpretation to completely different

factual situations, demonstrate that the Court in-

tended it to apply generally to situations in which

EPA’s approval of (or disapproval and promulga-

tion of amendments to) State implementation plans

is involved. The Court did not make any exception

for plans that fail to provide for the prevention of

*° This Court expressly noted that treating variances as revi-

sions under § 110(a)(3) ‘‘would result in variances being readily

approved in two situations: first, where the variance does not

defer compliance beyond the attainment date: and second, where

the national standards have been attained and the variance is not

so great that a plan incorporating it could not insure their con-

tinued maintenance.’’ 421 U.S., at 77. (Emphasis added.) The

first situation is the one identified by Judge Wright for the court

below, while the second situation is the one in which deterioration

of cleaner air to the level of the national standards would be

permitted by approval of a variance.

Avett Blin te Rc cateting om A be ne

ee ee

ee ele en Oe

et,

significant deterioration, or even reserve that situa-

tion?’ and no exception is made in § 110 itself.

While the court below conceded that ‘*the provi-

sions of Section 110(a) are, more than anything else,

a summary of the mandatory requirements for all

state implementation plans,’’ it ‘found no indication

_.. in the legislative history, that Section 110 was in-

tended in any way to vitiate the non-deterioration

mandate contained in the Senate report’? (App. A,

at 21a). In short, a passage in the Senate Report upon

the 1970 Amendments constitutes the primary basis

of the holding below that the prevention of significant

deterioration also is a mandatory requirement for all

State implementation plans, despite the omission of

any such requirement from § 110, despite the manda-

tory ‘shall approve”? language of § 110, and despite

the holdings by this Court in Train, Hancock, and

Union Electric that such language is truly mandatory.

Indeed, that passage is the on/y bit of legislative his-

tory. from the enactment of the ‘‘protect”’ language

by the 1963 Act through enactment of the “enhance

language by the 1967 Act and up to and including well

actment of the 1970 Amendments, in which it is even

elaimed, by the court below or by any litigant, that any

member of Congress has expressed the view that the

27 This Court hardly could have been unaware of the bo oe

deterioration issue since the opinion of the Fifth Cireuit a

the Court in Train and the opinion of the Eighth ¢ remit a ne

the Court in Union Electric are among those that unas tineany we

cepted Sierra Club vy. Ruckelshaus as establishing a a ae

for the prevention of significant deterioration. See ye - °

408 (5th Cir., 1974), and 515 F.2d 206, 220 (8th Cir., 1970). An

see n. 8, p. 17, supra.

‘‘protect and enhance’’ purpose clause requires the

prevention of significant deterioration.”

That passage in 8S. Rep. No. 91-1196, 91st Cong., 2d

Sess. (1970), at 11, reads as follows:

‘The bill would not require the attainment of

the air quality goals within a specified time period.

Nevertheless, it is the Committee’s view that prog-

ress in this direction should be made as rapidly as

possible. In areas where air pollution levels al-

ready are relatively low, the attainment and main-

tainance of these goals should not require an ex-

tended time period. In areas where current air

pollution levels are already equal to, or better than,

the air quality goals, the Secretary should not ap-

prove any implementation plan which does not

provide, to the maximum extent practicable, for

the continued maintenance of such ambient air

** But see n. 2, p. 7, supra. While we are prepared to dem-

onstrate that an HEW ‘‘Guidelines’’ issued under the 1967 Act

(see App. A, n. 30, p. 18a) and testimony by officials of HEW

(see id., at 18a-19a) are consistent with our view that the 1967 Act

was not intended to prevent deterioration of air which satisfied

the air quality standards established thereunder, it does not seem

necessary to do so in this petition. The court below recognized

that the contrary ‘‘administrative interpretation’? of the 1967

Act which it drew from those materials depended for its im-

portance, in interpreting the 1970 Amendments, upon that court’s

understanding that the ‘‘committee reports (sic)’’ on the 1970

Amendments ‘‘contain express language that the principle of non-

deterioration was preserved by the Clean Air Act Amendments

of 1970”’ (App. A, at 22a; generally, at 2la-22a). Insofar as

the court below relied upon ‘‘recent congressional statements’’ in

connection with legislation which failed of passage in the 94th

Congress (id., at 23a), we have noted that there were also many

such statements to the contrary in that Congress (p. 21, supra),

and the fact that Congress felt the need to draft an explicit signifi-

cant deterioration provision demonstrates in and of itself the

insubstantiality of any reliance upon the ‘‘ protect and enhance’’

clause as a basis for supporting the nondeterioration doctrine.

quality. Once such national goals are established,

deterioration of air quality should not be per-

mitted except under circumstances where there is

no available alternative. Given the varying alter-

native means of preventing and controlling air

pollution—inecluding the use of the best available

control technology, industrial processes, and oper-

ating practices—and care in the selection of sites

for new sources, land use planning and traffic con-

trol—deterioration need not occur.’’ (Emphasis

added. )

We will content outselves at this time with the fol-

lowing brief observations about that passage:

(1) The emphasized language in itself is ambigu-

ous. It could mean one of two things: first, air that is

‘‘already equal to, or better than, the air quality goals”

(i.e., the national secondary standards)” should he

maintained at a level that is either equal to or better

than the national standards (i.e., at a level which satis-

fies those standards) unless there is no available alter-

native; or, second, air that is ‘‘better than’’ should be

maintained at a level which is better than, and air that

is ‘‘equal to”? should be maintained at a level that is

‘equal to”? the national standards, unless there is no

available alternative.

(2) The second interpretation proves too much,

insofar as the significant deterioration regulations are

concerned, as it would not permit any deterioration

except where there ‘‘is no available alternative.’’ This

reading would not permit ‘‘incremental’’ deterioration

in any of the classes or the possibility of a Class IIT

redesignation where deterioration down to federal

2° Among other things, the bill that was enacted substituted

the term ‘‘secondary ambient air quality standards’’ for the

term ‘‘national goals’’ which was used in the Senate bill.

standards is contemplated by the present regulations.

See pp. 13-14, supra.

(3) The entire context of the above-quoted pas-

sage indicates that the first interpretation—air quality

that is equal to or better than the federal standards

should be maintained at a level which is either equal to

or better than such standards—was intended. The

passage as a whole is directed to and elaborates upon

‘the Committee’s view that,’’ while the “bill would

not require the attainment of air quality goals within

a specified time period,’’ nonetheless ‘progress in this

direction should be made as rapidly as possible.’’? Fur-

ther, that passage appears in a section ( pp. 9-11) de-

voted to the establishment of the national primary and

secondary standards or goals at levels sufficient to pro-

tect the public health and welfare. The provisions of

the bill relating to implementation plans are discussed

in another section of the Report (pp. 11-15), which

states, among other things, that the “bill . . . would

require that each State... adopt a plan for the im-

plementation of standards at least as stringent as the

national ambient air quality standards”’ (p. 12; em-

phasis added), and that the Secretary of HEW ” would

have ‘the authority to replace all or any portion of any

implementation plan submitted by a State where the

attainment of the nationally [sic] ambient air quality

standard within the time required is not provided’’

(p. 14; emphasis added). See, also, the analysis at

pp. 54-59 of the Report of § 6 of the Senate bill (which

contained the provisions in question).

pay ; ; ,

fe Ru hile the Senate bill provided for the Secretary of HEW

) ey be Federal functions provided for therein, the bill

enacted in 1970 provided that the Administr 1p

( strator F

exercise those functions. i aaa

(4) The passage in question, whatever its meaning,

does not purport to be based upon, or even refer to,

the ‘protect and enhance’? purpose clause in § 101

(b)(1) of the Act. Insofar as we are aware, ho mem-

ber of Congress ever asserted, until after Sierra Club

v. Ruckelshaus was instituted, that that clause em-

bodied a policy to prevent significant deterioration.

(5) The passage in question comprises one para-

graph (about one-fourth of a page) of a Senate Re-

port that is 129 pages long. No one has even claimed

that there is a comparable passage in H. Rep. No.

91-1146, 91st Cong., 2d Sess. (1970), or in the Con-

ference Report, H. Rep. No. 91-1783, 91st Cong., 2d

Sess. (1970), or in the extensive floor debates that

preceded enactment of the 1970 Amendments. When

this is contrasted with the lengthy discussion of the

significant deterioration provisions of the legislation

proposed in the immediately past Congress, both in

committee reports and floor debate, and the general

recognition of the complexity, controversial nature

and importance of any such provisions (see pp. 20-

24, supra), it seems inconceivable that the Congress

could have intended State implementation plans to

contain such provisions when it enacted the 1970

Amendments.

In view of the considerations outlined above, we

think it plain that a single passage in a committee

report, which in itself is at least ambiguous, is much

toe slim (if not nonexistent as) a foundation to sup-

port the superstructure of the significant deterioration

rerulations, overriding not only the plain language of

§ 110 of the Act but also three decisions by this Court

holding that such language does indeed mean what

it clearly says.

EES!

We add two further points. First, assuming that

the ‘‘protect and enhance’’ language in the Findings

and Purposes section of the Clean Air Act does em-

body a policy for the prevention of significant de-

terioration, this does not necessarily mean (as the

court below seems to have assumed) that the imple-

mentation of such a policy is a function of the Federal

Government. Rather, as we have demonstrated (p. 6,

supra) and as the Court noted in Train (421 U.S., at

64), at all times the Clean Air Act has recognized, as

it now provides in the Findings and Purposes section

(§$101(a)(3)), that ‘‘the prevention and control of

air pollution at its source is the primary responsibil-

ity of States and local governments ....’’ In this

regard, § 116 of the Clean Air Act as revised by the

1970 Amendments provides, in the language of S. Rep.

No. 91-1196, supra at 15, that ‘‘States, localities .. .

may adopt ... more restrictive standards and plans

... than required by’’ what is now § 110 of the Act.

Second, even assuming that the ‘‘protect and en-

hance’’ language does include both a policy of pre-

venting significant deterioration and a Federal role

in that regard, this does not necessarily mean (as the

court below seems to have assumed) that such Federal

role is to be exercised through EPA’s disapproval of

State implementation plans and promulgation of reg-

wations amending all those plans to include signifi-

cant deterioration provisions. Indeed, the Congress

in the 1970 Amendments did enact the provisions in

§ 111 of the Act for the establishment by EPA of new

source performance standards (see p. 9, supra) in

the belief, as stated in 8. Rep. No. 91-1196, supra at 2,

that ‘‘[mJaintenance of existing high quality air is

assured through provision for maximum control of

new major pollution sources.’’ And, See, C.J.» National

Asphalt Pavement Association v. Train, i) ERC 1109,

1114 (D.C. Cir., July 21, 1976), and the legislative

history there cited.

In sum, the decision below has decided important

issues that should be reviewed and decided by this

Court, and it has decided them wrongly.

CONCLUSION

For the reasons stated above, this petition for writ

of certiorari should be granted.

Respectfully submitted,

Dated: October 15, 1976

[List of Counsel on next page |

COUNSEL FOR PETITIONERS

CINCINNATI Gas & ELEciTRIC

COMPANY

Tue CLEVELAND ELEcTRIC

ILLUMINATING COMPANY

COLUMBUS AND SOUTHERN OHIO

ELectric COMPANY

Tue Dayton POWER AND Licgut

COMPANY

KENTUCKY Power COMPANY

Onto Epison COMPANY

Onto Power COMPANY

Wilson W. Snyder

Fuller, Henry, Hodge

& Snyder

1200 Edison Plaza

300 Madison Avenue

Toledo, Ohio 43604

Paciric CoAaL GASIFICATION

COMPANY

K. R. Edsall

Jane C. L. Goichman

P.O. Box 54790

Terminal Annex

Los Angeles,

California 90054

MonTANA POWER COMPANY

Pacific POWER AND LIGHT

COMPANY

PoRTLAND GENERAL ELECTRIC

CoMPANY

Pucet Sounp Power & Lieut

CoMPANY

WASHINGTON WATER POWER

CoMPANY

Francis M. Shea

Richard T. Conway

David Booth Beers

I. Michael Greenberger

Shea & Gardner

734 15th Street, N.W.

Washington, D.C. 20005

TRANSWESTERN COAL GASIPFICA-

TION COMPANY

James W. McCartney

Norman D. Radford, Jr.

Vinson, Elkins, Searls,

Connally & Smith

2100 First City National

3ank Building

Houston, Texas 77002

APPENDIX

APPENDIX A

Unirep States Court or APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 74-2063

Sierra Cius, Petitioner

ENVIRONMENTAL PROTECTION AGENCY ET AL.,

Respondents -

Tue Dayton Power & Licut Co, £7 AL., lxtervenors

No. 74-2079

Srerra Cus Et AL., Petitioners

Vv.

E\NVIRONMENTAL PROTECTION AGENCY ET AL.,

Respondents

No. 75-1368

Pusiic Service CoMPANY OF COLORADO ET AL.,

Petitioners

rene sO

| Unirep States ENviroONMENTAL PROTECTION AGENCY,

Respondent

Sierra Cius et Au., Intervenors

| (la)

No. 75-1369

Uran Power & Licut Company, Petitioner

Vv.

I-NVIRONMENTAL Protection Acency, Respondent

Srerra Cus et AL., Intervenors

No. 75-1370

Strate or New Mexico ex rEL. New Mexico

F.NVIRONMENTAL IMPROVEMENT AGENCY, Petitioner

ENVIRON MENTAL Protection Acency, Respondent

Sierra Cuvus et Au., ntervenors

No, 75-1371

Paciric Coat Gastrication Company ET AL., Petitioners

I-NVIRONMENTAL Protection AGency, Respondent

Sierra Cus et Au., /ntervenors

No. 75-1372

Uran Internationa, Inc., Petitioner

ENVIRONMENTAL Protection AGENcy, Respondent

Sierra Cius et Au., [ntervenors

No. 75-1575

Inpiana-Kentucky Evecrric CorPoRATION ET AL.,

Petitioners

Vv.

Unirep States EnviroNMENTAL ProTEcTION AGENCY,

Respondent

Srerra Civus et A., /ntervenors

No. 75-1663

Tue Dayton Power & Ligut CoMPANY ET AL.,

Petitioners

ENVIRONMENTAL Protection Acency, Respondent

Srerra Cuius et Au., Intervenors

No. 75-1664

Buckeye Power, Inc, et au., Petitioners

E\NVIRONMENTAL PROTECTION AGENCY ET AL.,

Respondents

Srerra Cuius et Au., Intervenors

No. 75-1665

AMERICAN PETROLEUM INsTITUTE ET AL., Petitioners

ENVIRONMENTAL Protection AGENcy, Respondent

Sierra Cuius et a., Intervenors

No. 75-1666

ALABAMA Power Company Et AL., Petitioners

ENVIRONMENTAL Protection Acency, Respondent

Sierra Cuius et Au., /ntervenors

No, 75-1763

Montana Power Company ET AL., Petitioners

Unirep States ENVIRONMENTAL PROTECTION AGENCY,

Respondent

‘

Sierra Cuius et Au., Intervenors

No. 75-1764

Sat River Progecr AGRICULTURAL IMPROVEMENT

AND Power District er Au., Petitioners

Vv.

IoNVIRONMENTAL ProTECTION AGENCY ET AL.,

Respondents

SrerRA Cvs ET AL., [ntervenors

Petitions for Review of Regulations Promulgated by

the Environmental Protection Agency

Argued June 9, 1976

Decided August 2, 1976

Before Wricut, Rostnson, and WiiKey, Circuit Judges.

Opinion for the court filed by Cirewt Judge Wricur.

Wricut, Circuit Judge:

I. InrropUctTIoNn

One of the primary purposes of the Clean Air Act, 42°

U.S.C. § 1857 et seg. (1970), is *‘to protect and enhance

the quality of the Nation’s air resources so as to promote

the public health and welfare and the productive capacity

of its population * * *.’’ Section 101(b)(1), 42 U.S.C.

§ 1857(b)(1). Pursuant to the court order in Sierra Club

v. Ruckelshaus, 344 F.Supp. 253 (D. D.C. 1972), aff’d per

curiam, 4 ERC 1815 (D.C. Cir. 1972), aff’d by an equally

divided Court, sub nom. Fri v. Sierra Club, 412 U.S. 541

(1973), the Administrator of the Environmental Protec-

tion Agency (EPA) promulgated regulations designed to

prevent ‘‘significant deterioration”’ of_air quality in those

areas which have air that already is cleaner than tlie

national ambient air quality standards.’ The regulations

‘The twin objectives of the Clean Air Act are to improve air

quality where pollution levels do not meet national minimum stand-

ards, and to protect the quality of air that already, as in this case,

is cleaner than national standards, See Part V-A of this opinion

infra. Accomplishment of those objectives is to be a joint enterprise

of the federal government and the states, the former providing

informed guidance to the implementation efforts of the latter. Sec

§§ 101(a)(3), (4) of the Act, 42 U.S.C. §§ 1857(a)(3), (4).

Section 108 of the Act, 42 U.S.C. § 1857e-3, required the Admin-

istrator of EPA to publish a list of air pollutants which have ‘‘an

adverse effect on public health or welfare.’’ The Administrator was

then to promulgate national primary and secondary ambient air

quality standards for those specified pollutants, National primary

air quality standards are those ‘‘the attainment and maintenance of

which * * * are requisite to protect the public health’’; national

secondary standards are those ‘‘requisite to protect the public wel-

fare from any known or anticipated adverse effects associated with

the presence of such air pollutant in the ambient air.’’ Section 109,

{continued ]

employ a classification scheme under which these ‘‘clean

air’’ regions may be designated Class I, IJ, or LI. All

such areas initially are designated Class II, under which

specified increments in sulfur dioxide and particulate mat-

ter pollution are considered ‘‘insignificant.’’ A state, In-

42 U.S.C. § 1857¢-4. The Administrator has promulgated national

primary and secondary air quality standards for six pollutants:

sulfur dioxide, particulate matter, carbon monoxide, photochemical

oxidants, hydrocarbons, and nitrogen dioxide. 40 C.F.R, §§ 50.4—

50.11 (1975).

The states are charged with the duty to develop implementation

plans designed to achieve the level of air quality prescribed by the

national primary and secondary standards:

Each State shall have the primary responsibility for assuring

air quality within the entire geographic area comprising such

State by submitting an implementation plan for such State

which will specify the manner in which national primary and

secondary ambient air quality standards will be achieved and

maintained within each air quality control region in such State,

Section 107, 42 U.S.C. § 1857-2. The plans are submitted to the

Administrator for approval under the provisions of § 110 of the

Act, 42 U.S.C, § 1857¢-5 (1970), as amended (Supp. IV 1974). A

proposed implementation plan must satisfy the requirements of

§ 110(a) (2)(A)-(H), 42 U.S.C. § 1857¢e-5(a)(2)(A)-(H), which

requirements include attainment of the national primary standards

within three years after approval of the plan, and attainment of

the secondary standards within a ‘‘reasonable time.’’ Section 110

(a) (2) (A), 42 U.S.C. § 1857¢-5(a) (2) (A).

Section 110 also provides that the Administrator is promptly to

prepare and publish his own regulations for a state if (a) it fails to

submit a plan, (b) the plan ‘‘is determined by the Administrator

not to be in accordance with the requirements of this section,’’ or

by § 110(a) (2) (H). Section 110(¢)(1), 42 U.S.C. § 1857¢-5(e) (1)

(Supp. IV 1974). Subsection (¢)(1) of § 110 also contains a con-

ditional hearing requirement for these ‘‘replacement’’ implementa-

tion plans: ‘‘If such State held no public hearing associated with

respect to such plan (or revision thereof), the Administrator shall

provide opportunity for such hearing within such State on any pro-

posed regulation.’’ Subsection (a)(2)(H) requires that an imple-

dian territory, or federal land may be redesignated after

hearing and by application to EPA. Designation as Class

I implies a region of very clean air, in which relatively

small increments in air pollution would be considered sig-

nificant deterioration; Class III areas are those in which

deterioration of air quality to the national ambient air

quality standards would be considered insignificant.

The court bas heard the regulations attacked from sev-

eral perspectives. Petitioner Sierra Club contends that

the regulations fail, in a variety of ways, to prevent sig-

nificant deterioration of existing clean air. The States of

New Mexico, Wyoming, and California* agree in some

respects with Sierra Club, but are concerned that the regu-

lations infringe on the general regulatory authority vested

in the states by the Clean Air Act. A large number of

electric power companies and industrial organizations

have argued that the regulations are not authorized by the

‘lean Air Act, that their promulgation was procedurally

defective, that the allowable increments are arbitrary and

capricious, and that the regulatory structure created by

the regulations is unconstitutional.

mentation plan provide for revision (i) to take account of changes

in either technology or the national standards and (ii) whenever

the Administrator determines that the p!an is inadequate to achieve

the primary or secondary standards.

The basic structure described above is supplemented by § 111 of

the Act, 42 U.S.C. § 1857¢-6 (1970), as amended (Supp. 1V 1974),

which provides for promulgation of ‘‘standards of performance’’

for emission limitations of significant new sources of pollution, by

categories of sources. The standards must reflect ‘‘the degree of

emission limitation achievable through the application of the best

system of emission reduction which (taking into account the cost of

achieving such reduction) the Administrator determines has been

adequately demonstrated.’’

2 The three named states are joined by Maine, Alabama, Colorado,

Kansas, Minnesota, South Dakota, and Florida,

We conclude that the Administrater’s action is ration-

ally based and has not been shown to be either without his

authority or unconstitutional. We therefore do not disturb

the regulations as promulgated.

II. Lirieation History

Suit was filed in May 1972 by the Sierra Club and other

environmental protection groups for a declaratory judg-

ment that the Clean Air Act prohibited approval of state

implementation plans which permitted significant deterio-

ration of air cleaner than the national secondary stand-

ards, and for injunctive relief to prevent the Administra-

tor from approving those portions of state implementation

plans which would permit significant deterioration. Dis-

trict Judge John H. Pratt granted plaintiffs’ motion for

a preliminary injunction and declared invalid an EPA

regulation * which had required only that state implemen-

tation plans ‘‘be adequate to prevent * * * ambient pol-

lution levels from exceeding * * * [the applicable] sec-

ondary standard.’’ Sierra Club v. Ruckelshaus, 344

F.Supp. 253 (D. D.C. 1972). The Administrator was en-

joined from approving any state plan ‘‘unless he approves

the state plan subject to subsequent review by him to in-

sure that it does not 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 Administra-

oe." *

As is apparent from the provisions of the Clean Air

Act outlined above,’ prohibition of significant deteriora-

*40 C.FLR. § 51.12(b) (1975).

* Sierra Club v. Ruckelshaus, Civil Action No, 1031-72 (D. D.C.

May 30, 1972), JA Vol. IV at 1487.

° See note 1 supra.

tion of air cleaner than the national standards is not

an express requirement of the Act. Judge Pratt based his

decision, rather, on the ‘‘ protect and enhance’’ language of

Section 101(b)(1) of the Act and on the legislative history

of both the Clean Air Act of 1970 and the Air Quality Act

of 1967.° The decision was affirmed per curiam by this

court, 4 E.R.C. 1815 (1972), and was affirmed by an

equally divided Supreme Court, sub nom. Fri v. Sierra

Club, 412 U.S. 541 (1973).

Pursuant to that order, the Administrator reviewed

and disapproved all state plans insofar as they failed to

provide for prevention of significant deterioration. 37 Fed.

Reg. 22836 (November 9, 1971). Four alternative sets of

regulations were proposed for public comment, in an ef-

fort to determine what meaning to give the concept of

‘‘sionificant deterioration.’’’ Final regulations were pub-

® The legislative history is discussed at notes 32-38 infra.

738 Fed. Reg. 18986 (July 16, 1973). In proposing alternative

solutions, EPA posed for public debate the problem of how signi-

ficant deterioration was to be defined :

The basis for preventing significant deterioration * * * lies

in a desire to protect aesthetic, scenic, and recreational values,

particularly in rural areas, and in concern that some air pol-

lutants may have adverse effects that have not been documented

in such a way as to permit their consideration in the formation

of national ambient air quality scientific data on the kind and

extent of adverse effects of air pollution levels below the sec-

ondary standards, significant deterioration must necessarily be

defined without a direct quantitative relationship to specific

adverse effects on public health and welfare.

* * * *

The relative significance of air quality versus economic

growth may be a variable dependent upon regional conditions,

For example, relatively minor deterioration of the aesthetic

quality of the air may be very significant in a recreational area

in which great pride (and economic development) is derived

from the ‘‘clean air.’’ Conversely, in areas with severe unem-

ployment and little recreational value, the same level of de-

[continued |

10a

lished December 5, 1974, 39 Fed. Reg. 42509, and were

amended slightly on January 16, 1975 (40 Fed. Reg. 2802),

June 12, 1975 (40 Fed. Reg. 25004), and September 10,

1975 (40 Fed. Reg. 42011).

Ill. Tue Recvuiations

In promulgating final regulations * EPA was concerned

primarily with the meaning of ‘‘significant deterioration.”’

As it stated in the discussion preceding the new regula-

tions:

Most of the comments implicitly recognized that there

is a need to develop resources in presently clean areas

of the country, and that significant deterioration reg-

ulations should not preclude all growth, but should

ensure that growth occurs in an environmentally ac-

ceptable manner. However, there are some areas, such

as national parks, where any deterioration would

probably be viewed as significant. A single nation-

wide deterioration increment would not be able to

accommodate these two situations.

39 Fed. Reg. at 42520. The solution was to prescribe, for

those areas with air cleaner than the national standards,

three classes of allowable total increments above the levels

of particulate matter and sulfur dioxide pollution as of

January 1, 1975, with the intention that each area could

terioration might very well be considered ‘‘insignificant’’ in

compariscn to the favorable impact of new industrial growth

with resultant employment and other economic opportunities.

Accordingly, the definition of what constitutes significant de-

terioration must be accomplished in a manner to minimize the

imposition of inequitable regulations on different segments of

the Nation.

Id. at 18987, 18988,

***Prevention of Significant Air Quality Deterioration,’’ 39 Fed.

Reg. 42510 (Dee. 5, 1974).

lla

determine which class would prevent significant deterio-

ration of its air in light of the area’s air quality and

social and economic needs and objectives:

Class I applie[s] to areas in which practically any

change in air quality would be considered significant;

Class II applie[s] to areas in which deterioration

normally accompanying moderate well-controlled

growth wonld be considered insignificant; and Class

III applie[s] to those areas in which deterioration up

to the national standards would be considered insig-

nificant.

* * * *

Since the consideration of ‘‘air quality factors’’ alone

essentially leads to an arbitrary definition of what is

‘‘significant,’’ this term only has meaning when the

economic and social implications are analyzed and

considered. Therefore, the Administrator believes

that it is most important to recognize and consider

these implications, since the consideration of air qual-

ity factors alone provides no basis for selecting one

deterioration increment over another.

Id. The regulations, 40 C.F.R. §§ 52.01(d), (f), and 52.21

(1975), were promulgated as amendments to the disap-

proved state implementation plans.’

All areas initially are designated Class IJ,’° and may be

redesignated by proposal of a state, federal land manager,

® Part 52 of 40 C.F.R. ‘‘sets forth the Administrator’s approval

and disapproval of State plans and the Administrator’s promulga-

tion of such plans or portions thereof.’’ 40 C.F.R. § 52.02(a) (1975).

Each state implementation plan has been amended to incorporate by

reference the new regulations. See, e.g., 40 C.F.R. §§ 52.96 (Alaska),

52.144 (Arizona), 52.181 (Arkansas).

1040 C.F.R, § 52.21(¢) (3) (i) (1975).

12a

or Indian governing body where the state has not assumed

jurisdiction over Indian lands."* Federal land may be des-

ignated only to a more restrictive classification than that

provided by the state(s) in which it is located.”

A state may redesignate if a hearing is held after notice

to states, federal land managers, and Indian governing

bodies that may be affected,’ and if the proposed redesig-

nation is based on the record of the hearing,

which must reflect the basis for the proposed redes-

ignation, including consideration of (1) growth an-

ticipated in the area, (2) the social, environmental,

and economic effects of such redesignation upon the

areas being proposed for redesignation and upon

other areas and States, and (3) any impacts of such

proposed redesignation upon regional or national in-

terests."*

A redesignation is to be approved if the state has com-

plied with the listed requirements, has not ‘arbitrarily

and capriciously disregarded’’ the considerations listed

in the passage quoted above, and has undertaken the new

source review requirements of Sections 52.21(d) and (e),

discussed below.”® 40 C.F.R. § 52.21(e) (3) (vi) (a) (1975).

40 C.F.R. §§ 52.21(¢) (3) (ii), (iii), (iv), (v) (1975).

#40 C.FLR. § 52.21(e) (iv) (1975).

40 C.F.R. §§ 52.21(¢) (3) (ii) (a)-(e) (1975).

* 40 C.F.R. § 52.21(¢) (3) (ii) (d) (1975).

*® See discussion at notes 20-23 infra.

Tn the event of a protest by a state or Indian governing body

toa redesignation proposed by another state federal land manager,

or Indian governing body, the Administrator may approve the pro-

posal ‘‘only if he determines that in his judgment the redesignation

appropriately balances considerations of growth anticipated in the

area proposed to be redesignated; the social, environmenta] and

Federal land managers and Indian governing bodies are

subject to requirements parallel to those imposed on the

states, with the added requirement that they consult with

the state(s) in which they are located."

If an area is designated as Cless I or II, the allowable

incremental pollution is measured from January 1, 1975."

No increments are specified for Class III; areas so des-

ignated are required to meet only the national secondary

standards.”

Enforcement of the limitation on incremental pollution

is accomplished partly through preconstruction review

of 19 categories of stationary sources considered to be sig-

nificant sources of pollution.*® Permission to construct or

to modify significantly one of the listed stationary sources

is conditioned on a showing that the source’s emissions,

together with all other increases or decreases in emissions

in the area since January 1, 1975, will not violate the air

economic effects of such redesignation upon the area being redesig-

nated and upon other areas and States; and any impacts upon

regional or national interests.’’ 40 C.F.R. § 52.21(¢) (3) (vi) (e)

(1975).

17 40 C.F.R. §§ 52.21(e) (3) (iv), (v) (1975).

1840 C.F.R, § 52.21(¢)(2)(i) (1975). The increments are pre-

scribed in the following table, included in the cited subsection :

Pollutant Class I (ug/m*) Class II

Particulate matter :

Annual geometric mean 5 10

24-hr. maximum 10 30

Sulfur dioxide:

Annual arithmetic mean 2 15

24-hr. maximum 5 100

3-hr. maximum 25 700

1° 40 C.F.R. § 52.21(e) (2) (ii) (1975).

20 40 C.F.R. § 52.21(d) (1) (i)-(xix) (1975).

—_

l4a

quality increments applicable to any area.”* The source

also must meet an emission limit, specified by the Admin-

istrator, ‘‘which represents that level of emission redue-

tion which would be achieved by the application of best

available control technology, as defined in § 52.01(f), for

particulate matter and sulfur dioxide.’’** Preconstruction

review of new proposed sources will be conducted by the

Administrator or, by delegation, by the individual states.**

Last, it should be noted that the deseribed classification

scheme is no procrustean bed to which all states are to be

bound. The states retain the option of proposing an alter-

native method of preventing significant deterioration of

air quality, thereby abandoning the regulatory frame-

work described by the regulations under review. As EPA

stated in proposing regulations:

The State plans need not be identical to the regula-

tions proposed herein, but should be developed to

accommodate more appropriately individual condi-

tions and procedures unique to specific State and local

areas. States are urged to develop and submit indi-

vidual plans as revisions to State Implementation

Plans as soon as possible. When individual State Im-

** 40 C.F.R. § 52.21(d) (2) (i) (1975), as amended, 40 Fed. Reg.

42011 (Sept. 10, 1975).

7240 C.F.R. § 52.21(d) (2) (ii) (1975). ‘‘Best available control

technology’’ is defined as equivalent to the new source performance

standards promulgated under § 111 of the Clean Air Act, 42 U.S.C.

§ 1857¢-6. See discussion at note 1 supra. If no standard of perform-

ance has been promulgated for a source, best available control tech-

nology is determined on a case-by-case basis. 40 C.F.R. § 52.01(f)

(1975).

*° 40 C.F.R. § 52.21(f) (1975). See also 40 C.F.R. § 52.21(d) (4)

(1975), which provides for cooperation between the Administrator

and federal land managers for review of new sources on federal

land, and between the Administrator and the Seeretary of the

Interior as to lands over which a state has not assumed jurisdiction,

Lda

plementation Plan revisions are approved as adequate

to prevent significant deterioration of air quality, the

applicability of the regulations proposed herein will

be withdrawn for that State.

39 Fed. Reg. at 31000 (August 27, 1974).

IV. Svanparp or Review

It is well settled that EPA rulemaking is reviewed under

Section 10 of the Administrative Procedure Act, 5 U.S.C.

§ 706(2) (A)-(D) (1970). Ethyl Corp. v. EPA, U.S.

App.D.C. . . F.2d . , slip op. at 66-

74 (No. 73-2205, decided March 19, 1976). We must de-

termine whether the Agency’s action, findings, and con-

clusions are invalid as procedurally defective (§ 706(2)

(D)), in excess of legislative authority (§ 706(2)(C)), un-

constitutional (§ 706(2)(B)), or ‘arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with

law’’ (§ 706(2)(A)).

The ‘‘arbitrary and capricious’’ standard requires that

agency action be affirmed if a rational basis exists there-

for * ; it is not for us to inquire into whether the decision

is wise as a matter of policy, for that is left to the discre-

tion and developed expertise of the agency.” The Supreme

Court has cautioned, with respect to review under the ‘‘ar-

bitrary and capricious’’ standard, that the reviewing court

is limited to deciding whether there has been a ‘‘clear error

of judgment * * *, Although this inquiry into the facts

is to be searching and careful, the ultimate standard of re-

view is a narrow one. The court is not empowered to sub-

stitute its judgment for that of the agency.’’ Citizens to

24 Bowman Transportation, Inc. v. Arkansas-Best Freight System,

Inc., 419 U.S, 281, 290 (1974).

25 National Ass’n of Food Chains, Inc. v. ICC, —— US. App.

D.C. , . F.24 ——, ——, slip op. at 13 (No, 75-1471,

decided May 18, 1976) (per curiam).

l6a

Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1972).

See Ethyl Corp. v. EPA, supra, —— U.S.App.D.C. at ——

n.74, F.2d at —— n.74, slip op. at 69 n.74.

We therefore must assure ourselves that the Agency has

presented a rational basis for its decision * ; that it ‘‘dem-

onstrably has given reasoned consideration to the issues,

and has reached a result which rationally flows from its

conclusions.’’ **

V. ARGUMENT

A. Should Sierra Club vy. Ruckelshaus be rejected on

further consideration?

The question whether the Clean Air Act should be in-

terpreted to prohibit significant deterioration of air cleaner

than the national standards is necessarily the first level of

analysis. Although this issue was decided by the carlicr

Sierra Club v. Ruckelhaus litigation, it is contended by

the industrial petitioners (1) that the decision was clearly

wrong on the merits and should be reconsidered and (2)

that the later decision in Train v. NRDC, 421 U.S. 60

(1975), and enactment of the Energy Supply and Environ-

mental Coordination Act of 1274, 88 Srar. 246, are incon-

sistent with the prior decision in Sierra Club v. Ruckels-

haus.

The first argument obviously would require the clear-

est showing that Sierra Club v. Ruckelshaus was incorrect-

*° We note that the basis of agency action must be provided by

the agency; an order ‘‘cannot be upheld merely because findings

might have been made and considerations disclosed which would

justify its order as an appropriate safeguard for the interests

protected by the Act, There must be such a responsible finding

*** ” SEC v. Chenery Corp., 318 U.S. 80, 94 (1943) ; see National

Ass’n of Food Chains, Inc. v. ICC, supra note 25, U.S.App.

D.C. at ——, —— F.2d at ——, slip op. at 12-13.

2? National Ass’n of Food Chains, Inc. v. ICC, supra note 25, ——

U.S.App.D.C. at ——, —— F.2d at ——., slip op. at 14.

17a

ly decided, since Judge Pratt’s decision was affirmed by

both another panel of this court and an equally divided

Supreme Court. It is posited that neither the ‘‘ protect and

enhance’’ language of Section 101(b)(1) nor the legisla-

tive history of the Clean Air Act need be read to impose

a requirement of nondeterioration; petitioners then point

out that, to the contrary, a 1970 amendment to the Act,

Section 110(a)(2), 42 U.S.C. § 1857e-5(a)(2), states that

the Administrator ‘‘shall approve’’ a state implementa-

tion plan which meets the criteria listed in that section,

none of which implies a nondeterioration standard. The

conclusion advanced by petitioners is that the judicially-

created requirement of nondeterioration violates this plain

language of the 1970 amendment.

When a specific provision of a total statutory scheme

reasonably may be construed to be in conflict with the con-

gressional purpose expressed in the act, our first task

is to examine the act’s legislative history to determine

whether the specific provision is reconcilable and con-

sistent with the intent of Congress.** We find, in the legis-

lative history of the Clean Air Act of 1970, a clear under-

standing that the Act embodied a pre-existing policy of

nondeterioration of air cleaner than the national stand-

ards. Inasmuch as we find no support for the proposition

that the addition of Section 110(a)(2) was intended to

limit that policy in any way, we reaffirm our prior holding

in Sierra Club v. Ruckelshaus.

The ‘‘protect and enhance’’ language of the Clear Air

Act was added by the Air Quality Act of 1967, 81 Srar.

485.°° The administrative interpretation and, to a lesser

2° See FTC v. Fred Meyer, Inc., 390 U.S. 341, 349 (1968) : “‘[Wle

cannot, in the absence of an unmistakable directive, construe the

Act in a manner which runs counter to the broad goals which Con-

gress intended it to effectuate.’’

2° Air Quality Act of 1967, 8S. Rep. No. 91-403, 90th Cong., Ist

Sess. 40 (1967).

18a

degree, the legislative history of the Air Quality Act ex-

pressed a policy of nondeterioration,” and that policy

appears generally to have been accepted at the time of the

addition of the Clean Air Act amendments of 1970.

In the Senate hearings on the Clean Air Act amend-

ments of 1970, the officials charged with implementation

of the 1967 Act expressed their clear understanding that

the ‘‘protect and enhance’’ language of Section 101 man-

dated the policy of nondeterioration. HIXSW Secretary

Robert H. Finch testified as follows in a statement pre-

sented by Undersecretary John Veneman:

In their implementation plans, the States would

have to spell out the measures to be taken to achieve

°° Sierra Club v. Ruckelshaus, 344 F.Supp, 253, 255 (D_ D.C.

1972) ; ENvIRONMENTAL Law INnstitUTE, FepeRAL ENVIRONMENTAL

Law, 1974 at 1077-1080. The Senate committee report on the Air

Quality Act emphasized that the Act would apply to all areas

of the country, and quoted Senator Muskie for the proposition that

it was necessary ‘‘to assure the lessening of current levels of pollu-

tion and to prevent further environmental] deterioration jn the

future.’’ Air Quality Act of 1967, supra note 29, at 2-3, 8.

The Act was administered by the Nationa] Air Pollution Control

Administration of the Department of Health, Education and Wel-

fare, which formalized the concept of nondeterioration in its Guide-

lines for the Development of Air Quality Standards and Implemen-

tation Plans, Part I, § 1.51 at 7 (1969) :

**TA]n explicit purpose of the Act is ‘‘to protect and enhance

the quality of the Nation’s air resources’’ (emphasis added).

Air quality standards which, even if fully implemented, would

result in significant deterioration of air quality in any sub-

stantial portion of an air quality control region clearly would

conflict with this expressed purpose of the law.

See generally, Non-Degradation—Clean Air Act and Amendments

Held to Mandate a Policy Prohibiting Significant Deterioration of

Air Quality in Arcas of Relatively Clean Air, 2 Forpuam Urean

L. J. 136 (1973) (hereinafter Clean Air Act Held to Prohibit Sig-

nificant Deterioration); The Clean Air Act and the Concept of

Non-Degradation: Sierra Club v. Ruckelshaus, 2 Ecovoey L. Q. 801

(1971) (hereinafter The Concept of Non-Degradation).

19a

and preserve national air quality standards. As I

have indicated, they would have the option of de-

signing their implementation plans to achieve or pre-

serve higher than national quality levels, if they

wished to do so.

As you know, one of the express purposes of the

Clean Air Act is ‘‘to protect and enhance the qual-

ity of the Nation’s air resources’’ * * *. Accordingly,

it has been and will continue to be our view that

implementation plans that would permit significant

deterioration of air quality in any area would be

in conflict with this provision. We shall continue to

expect States to maintain air of good quality where it

now exists.

Air Pollution—1970, Hearings before the Subcommittee

on Air and Water Pollution of the Senate Committee on

Publie Works, Part I, 132-133 (1970). Undersecretary

Veneman went on to state that ‘* {i]t will continue to be our

view that implementation plans that would permit signifi-

cant deterioration of air quality in any area would be in

conflict with the provisions of the Act. We do not intend

to condone ‘backsliding.’ If an area has air quality which

is better than the national standards, they would be re-

quired to stay there and not pollute the air ever further,

even though they may be below national standards.’’ /d.

at 143.

The Senate committee report gave express recognition

to the concept of nondeterioration, directing that

[ijn areas where current air pollution levels are al-

ready equal to, or better than, the air quality goals,

the Secretary should not approve any impicmenta-

tion plan which does not provide, to the maximum ex-

tent practicable, for the continued maintenance of

such ambient air quality. Once such national! goals are

established, deterioration of air quality should not be

20a

permitted except under circumstances where there is

no available alternative.

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 11 (1970) (em-

phasis added). Quite to the contyary, however, there was

no particular significance ascribed to the ‘‘shall approve’’

language of the section which became Section 110(a)(2).

Id. at 11-15.

The explanation of this omission in the legislative his-

tory appears to be that the 1970 amendments were aimed

at states that refused to take action to improve their air

quality. The background of the 1970 amendments was

described in Tra | v. NRDC, supra, 421 U.S. at 64:

The response of the States to these manifestations

of increasing congressional concern with air pollution

was disappointing. Even by 1970, state planning and

implementation under the Air Quality Act of 1967 had

made little progress. Congress reacted by taking a

stick to the States in the form of the Clean Air Amend-

ments of 1970 * * *.

The ‘‘stick’’ was the group of express requirements as to

the content of state implementation plans." The ‘‘shall

approve’’ language was addressed to the administrative

problems that would be caused by a requirement that all

states submit complying implementation plans within a

***The Committee recognized that because the proposed bill

would require a great deal in a short period of time and because the

brevity of the provision in existing law has led to uneven and in-

adequate interpretation, the character of an implementation plan

must be specified and the alternative methods of achievement listed.

The Committee bill would require that a rigorous time sequence be

met in the development of the implementation plan and would pro-

vide for the substitution of Secretarial authority if the State plan,

or a portion thereof, is inadequate to attain the quality of ambient

air established by the nationally promulgated ambient air quality

standard.’’ S. Rep. No, 91-1196, 91st Cong., 2d Sess, 12 (1970).

21%.

limited time; the provisions of Section 110(a) are, more

than anything else, a summary of the mandatory require-

ments for all state implementation plans.** We have, how-

ever, found no indication, nor have we been cited to any

indication in the legislative history, that Section 110 was

intended in any way to vitiate the nondeterioration man-

date contained in the Senate report.”

This court has recently cautioned that a failure by Con-

gress expressly to reject the administrative construction

of an act need not, without more, indicate congressional

acquiescence in the agency interpretation.“ In Chisholm v.

FCC, U.S. App.D.C. , F.2d (No, 75-

1951, decided April 12, 1976), the court refused to ascribe

significance to congressional inaction when it appeared that

Congress was ‘‘aware’’ of the administrative interpreta-

82 See note 31 supra.

33 See The Concept of Non-Degradation, supra note 30, at 819:

The legislative history does support the contention that the

principle of non-degradation is implicit in the Clean Air Act.

It resolves the vagueness of both the purpose clause and section

110. Although the history of the 1967 Act conveys an ambigu-

ous picture of the legislative intent, the history of both the

1970 Amendments and the later Implementation Hearings

clearly indicates that Congress confronted the complexities of

air pollution contro] and undertook a program designed to

prevent the deterioration of clean air.

% Chisholm v. FCC, —— U.S.App.D.C. : F.2d

, slip op. at 26 (No. 75-1951, decided April 12, 1976) :

We begin by noting that attributing legal significance to

Congressional inaction is a dangerous business * * *. The

Supreme Court has said that Congressional failure to repudiate

particular decisions ‘‘frequently betokens unawareness, pre-

occupation, or paralysis’’ rather than conscious choice, Zuber

v. Allen, 396 U.S. 168, 185-86 n. 21 (1969), and ‘‘afforcs the

most dubious foundation for drawing positive inferences,’

United States v. Price, 361 U.S. 304, 310-11 (1960) (Harlan,

J.).

22a

tion only ‘‘in a technical sense.’” —— U.S. App.D.C. at

. F.2d at ——, slip op. at 27. We are not presented

with that situation. Not only was the Agency’s interpre-

tation of the Air Quality Act of 1967 as mandating preven-

tion of significant deterioration clearly before the Congress

in 1970, but the committee reports contain express language

that the principle of nondeterioration was preserved by

the Clean Air Act Amendments of 1970.

This sort of express congressional recognition of the

implementing agency’s statutory construction can be ex-

tremely significant in interpreting legislative intent. In

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), for in-

stance, the Court found approval of a long-standing admin-

istrative interpretation in Congress’ studied inaction:

In addition to the importance of legislative history,

a court may accord great weight to the longstanding

interpretation placed on a statute by an agency

charged with its administration. This is especially

so where Congress has re-enacted the statute with-

out pertinent change. In these circumstances, congres-

sional failure to revise or repeal the agency’s inter-

pretation is persuasive evidence that the interpreta-

tion is the one intended by Congress.

416 U.S. at 274-275. The Court reached similar results in

Zemel v. Rusk, 381 U.S. 1, 11 (1965) (administration of

Passport Act of 1926); C.I.R. v. Estate of Noel, 380 U.S.

678, 682 (1965); NLRB v. Gullett Gin Co., 340 U.S. 361,

365-366 (1951); Helvering v. R.J. Reynolds Tobacco Co.,

306 U.S. 110, 114-225 (1939); and Norwegian Nitrogen Co.

v. United States, 288 U.S. 294, 313 (1933), among others.

In the instant case there is every indication that Con-

gress intended in 1970 to continue a policy of prevention

of significant deterioration of air quality. In addition, we

find nothing in the legislative history to indicate that Con-

gress had any desire or intention that the 1970 amend-

23a

ments hinder the fight against air pollution by voiding the

principle of nondeterioration.

It is significant in this regard that recent congressional

statements have supported the historic existence of a

requirement of nondeterioration. The report of the House

Committee on Interstate and Foreign Commerce on the

proposed Clean Air Act Amendments of 1976 (I1.R. Rep.

No. 94-1175, May 15, 1976) endorses a new statutory defini-

tion of nondeterioration, commenting that ‘‘[t]he Com-

mittee has developed this section to provide clearer defini-

tion of the nearly decade-old policy (reflected in section 101

(b) of the Act) that significant deterioration of clean air

must be avoided, and to provide more specific congressional

guidance as to how this policy is to be implemented.’’ /d.

at 83. A contemporaneous report of the Senate Committee

on Public Works on similar proposed amendments has

both restated the language quoted above from the 1970

Senate report * and reaffirmed the continuing policy of non-

deterivzation:

A nondegradation policy was articulated first in

Federal water pollution law. That was in 1965. The

concept was incorporated into the 1967 Air Quality

Act, which stated that a basic purpose of the Act was

to ‘‘protect and enhance the quality of the Nation’s

air resources.’’ That language was not altered by the

1970 Clean Air Amendments. This bill clarifies and

details that policy.

Clean Air Amendments of 1976, S. Rep. No. 94-717 at 20

(March 29, 1976). It would fly in the face of overwhelming

evidence of legislative intent to hold that the Clean Air

Act does not contain a requirement of prevention of sig-

nificant deterioration.

*5 See pp. [19a-20a] supra.

24a

Our belief that Sierra Club v. Ruckelshaus was decided

properly is bolstered by its acceptance in a number of

other circuits.° Petitioners suggest, however, that the

later decision in Train v. NRDC, 421 U.S. 60 (1975), and

enactment of the Energy Supply and Environmental Co-

ordination Act of 1974, 88 Srar. 246, are necessarily incon-

sistent with the concept of nondeterioration of air quality.

We reject both contentions.

Train v. NRDC involved construction of the ‘‘shall ap-

prove”’ language of Section 110(a)(3)(A),* which re-

quires that the Administrator approve revisions of state

plans which, after revision, meet the criteria of Section

110(a)(2). The Court held that state action which grants

a variance to an individual pollution source must be ap-

proved by the Administrator if the approval will not ex-

pand the time for compliance with national primary am-

bient air quality standards * or otherwise violate the re-

*° See NRDC v. EPA, 489 F.2d 390, 408 (5th Cir. 1974), rev’d

on other grounds, sub nom. Train v. NRDC, 421 U.S. 60 (1975) ;

Big Rivers Electric Corp. v. EPA, 8 ERC 1092 (6th Cir. 1975) ;

Union Electric Co. v. EPA, 515 F.2d 206, 220 (8th Cir. 1975),

aff’d on other grounds, US. , 44 U.S. L. Week 5060 (June

25, 1976) ; NRDC v. EPA, 507 F.2d 905, 913 (9th Cir. 1974). Cf.

Highland Park v. Train, 519 F.2d 681, 685 (7th Cir. 1975).

**“The Administrator shall approve any revision of an imple-

mentation plan applicable to an air quality control region if he

determines that it meets the requirements of paragraph 2 [§ 110

(a)(2)] and has been adopted by the State after reasonable notice

and public hearings.’’ Section 110(a)(3)(A), 42 U.S.C. § 1857¢-5

(a)(3)(A) (Supp. IV 1974).

* Section 110(a) (2) (A), 42 U.S.C. § 1857¢-5(a) (2) (A) (1970) :

The Administrator shall approve such plan, or any portion

thereof, if he determines that it was adopted after reasonable

notice and hearing and that—

(A) (i) in the case of a plan implementing a national pri-

mary ambient air quality standard, it provides for the attain-

ment of such primary standard as expeditiously as practicable

quirements of Section 110(a)(2). In the following passage,

strongly pressed upon us by petitioners, the Court em-

phasized the mandatory language of Section 110(a) (2):

The Agency is plainly charged by the Act with the

responsibility for setting the national ambient air

standards. Just as plainly, however, it is relegated by

the Act to a secondary role in the process of determin-

ing and enforeing the specific, source-by-source emis-

sion limitations which are necessary if the national

standards it has set are to be met. Under § 110(a)(2),

the Agency is required to approve a state plan which

provides for the timely attainment and subsequent

maintenance of ambient air standards, and which also

satisfies that section’s other general requirements.

The Act gives the Agency no authority to question

the wisdom of a State’s choices of emission limita-

tions if they are part of a plan which satisfies the

standards of §110/a)(2), and the Agency may devise

and promulgate a specific plan of its own only if a

State fails to submit an implementation plan which

satisfies those standards.

421 U.S. at 79 (emphasis in original).*® It is argued that

this decision removes from the Administrator the discre-

tion to disapprove a plan which complies with Section

110(a)(2), and therefore requires that Sierra Club v.

Ruckelshaus be overturned. This argument, however, is

but * * * in no case later than three years from the date of

approval of such plan (or any revision thereof to take account

of a revised primary standard) ; and (ii) in the case of a plan

implementing a national secondary ambient air quality stand-

ard, it specifies a reasonable time at which such secondary

standard will be attained [.|

8° The language was repeated in Hancock v. Train, US.

, 44 U.S. L. Weex 4767, 4768 (June 7, 1976) (dictum),

which concerned the obligation of federal facilities to comply with

the requirements of state implementation plans.

26a

subject to the same analysis by which we reject the argu-

ment based on Section 110(a)(2) alone. Unlike the instant

case, T'rain was concerned with air pollution below the

national standards, and the question was whether individ-

ual variances would prevent the states from achieving the

standards within the prescribed time limits. The Supreme

Court in Train did not consider the issue of nondeteriora-

tion, even though the decision below was based in part on

Sierra Club v. Ruckelshaus.” Rather than assume, as the

industrial petitioners would have us, that Train silently

overturned the earlier divided affirmance in Sierra Club,

we find it more reasonable to conclude that the Court did

not address the issue, and we reject the argument based

on Train.

In another recent decision, Union Electric Co. v. EPA,

US. » 44 U.S. L. Week 5060 (June 25, 1976),

the Supreme Court found challenges to state implementa-

tion plans based on economic infeasibility to be barred

by the mandatory nature of Section 110(a)(2). The Court

found in the legislative history of the 1970 amendments a

congressional determination that clean air objectives

should take precedence over claims of economie or techno-

logical infeasibility: :

As we have previously recognized, the 1970 Amend-

ments to the Clean Air Act were a drastic remedy to

what was perceived as a serious and otherwise un-

checked problem of air pollution. The Amendments

place the primary responsibility for formulating pol-

lution control strategies on the States, but nonetheless

subject * * * the States to strict minimum compliance

requirements. These requirements are of a ‘‘technolo-

gy forcing character,’ Train v. NRDC, 421 US., at

91, and are expressly designed to force regulated

“NRDC v. EPA, supra note 36, 489 F.2d at 408. The Train

decision was limited expressly to the question of approval of vari-

ances, 421 U.S. at 69-70,

27a

sources to develop pollution control devices that might

at the time appear to be economically or technological-

ly infeasible.

This approach is apparent on the face of § 110(a)

(2). The provision sets out eight criteria that an im-

plementation plan must satisfy, and provides that if

these criteria are met and if the plan was adopted

after reasonable notice and hearing, the Administra-

tor ‘shall approve’’ the proposed state plan. The

mandatory ‘‘shall’’ makes it quite clear that the Ad-

ministrator is not to be concerned with factors other

than those specified, Train v. NRDC, 421 U.S., at 71 n.

11, 79, and none of the eight factors appears to permit

consideration of technological infeasibility.

—— US. at —, 44 US. L. Week at 5063. Although

the Court stressed the ‘‘shall approve’’ language of Sec-

tion 110(a)(2), its construction was founded on a con-

cern that the congressional mandate of prompt implemen-

tation of pollution control plans not be disserved. The

Court was not presented with the distinct question whether

the ‘‘shall approve’’ language of Section 110(a) (2) must be

read to subvert the concomitant congressional directive

that significant deteriation of air cleaner than the national

standards be prevented.’ Thus, despite the emphasis

placed on (a)(2) by the opinions in Train v. NRDC and

Union Electric, we do not believe the result in the instant

case is controlled by either opinion.

Petitioners also rely on the Energy Supply and En-

vironmental Coordination Act of 1974 (ESECA), which

#1 As was the case in Train v. NRDC, the lower court in Union

Electric expressly had approved the concept of prevention of signi-

ficant deterioration. Union Electric Co. v. EPA, supra note 36, 515

F.2d at 220 n.39. The Supreme Court affirmed the Court of Appeals

without mentioning that issue.

28a

was enacted to encourage stationary fuel-burning sources

to convert from oil to coal, to minimize the nation’s de-

pendence on imported oil. Among ether things, it (1) au-

thorized the Federal Energy Administration to require

power plants and other major fuel-burning sources to

burn coal, (2) amended the Clean Air Act to provide a

limited exemption from stationary source requirements

to those converting facilities, and (3) required the Ad-

ministrator of EPA to review the implementation plan

of each state and notify any state which could revise its

plan as to stationary fuel-burning sources without violat-

ing the national ambient air qquality standards. The

ESECA is accommodated in the ‘‘significant deteriora-

tion’’ regulations by 40 C.F.R. § 52.21(d)(1), which ex-

empts from preconstruction review modifications ‘‘to uti-

lize an alternative fuel, or higher sulfur content fuel.’’

Although conversion to ‘‘dirtier’’ fuels such as coal

certainly will impair both improvement and maintenance

of air quality, there is no reason to believe that passage of

ESECA was intended to eliminate the requirement of non-

deterioration." The amendment was a necessary response

to the nationwide shortage of oil and natural gas, and no

“ Section 119, 42 U.S.C. § 1857e-19 (Supp. IV 1974).

** Section 110(a) (3 B), 42 U.S.C. bs

IV reps” 120(a) (8) (B), 42 USC. § 1857e-5(a)(8)(B) (Supp.

** The ‘‘purpose’’ section of ESECA, 15 U.S.C. § 791 (S V

1974), is as follows: db deetiene vil

The purposes of this chapter are (1) to provide for a means

to assist in meeting the essential needs of the United States for

fuels, in a manner which is consistent, to the fullest extent

practicable, with eristing national commitments to protect and

tmprove the environment, and (2) to provide requirements for

reports respecting energy resources.

(Emphasis added. )

29a

reason has been presented for ascribing to it a greater

significance.”

We therefore find no substantial reason to question un-

der ESECA or Train, the continuing validity of Sierra

Club v. Ruckelshaus, and we proceed to the substance of

the regulations under review using that decision as our

guide.

B. Are the regulations invalid on the ground that only

two of the six primary air pollutants are considered?

The regulations provide for control only of particulate

matter and sulfur dioxide emissions,“ whereas the Ad-

ministrator also has identified carbon monoxide, nitrogen

oxides, hydrocarbons, and photochemical oxidents as air

pollutants which have an adverse effect on public health

or welfare.” It is contended that the regulations violate the

District Court’s order in Sierra Club v. Ruckelshaus by

failing to prevent significant deterioration of air quality

with respect to those four pollutants.”

EPA has responded that the interrelationships among

tnose four pollutants, and the relationships between in-

45 We also reject the argument that it is ‘‘unfair’’ to count the

increased emissions from a source that is converted to coal against

the allowable pollution increment for the area, since that modifica-

tion is exempted from preconstruction review. We see no reason

why a state in which major utilities have been forced to convert to

coal may not choose to impose commensurately stricter standards

on the remainder of the area.

** See note 18 supra.

47 40 C.F.R. §§ 50.8-50.11 (1975).

8 The order required that the Administrator ‘‘prepare and pub-

lish proposed regulations, pursuant to 42 U.S.C. § 1857e-5(e), 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 pre-

vent such significant deterioration.’’ Sierra Club v. Ruckelshaus,

Civil Action No. 1031-72 (D. D.C. May 30, 1972).

30a

cremental increases in those pollutants and deterioration

of air quality, are poorly understood and cannot be de-

termined with any reasonable degree of accuracy :

These [four pollutants] are commonly referred to as

‘fautomotive pollutants,’’ because the automobile is

the major source of each of them * * *. The first three

(HC, NO., and Ox) are also known as ‘‘ photochemical’’

or ‘‘reactive’’ pollutants, because under the influence

of sunlight, they enter into a complex chemical reac-

tion in the atmosphere. * * * The rate at which the

reaction occurs depends on a number of variables, in-

cluding temperature, humidity, solar intensity, and

the concentrations of the input pollutants. * * *

The chief reason for excluding photochemical pol-

lutants from these regulations is that the relationship

between the emission of HC and oxides of nitrogen,

on the one hand, and the resulting ambient levels

of the harmful pollutants. O, and NO., on the other,

is very poorly understood. The only method for relat-

ing emissions to air quality for these pollutants is

the ‘‘area-wide proportional model.’’ This model as-

sumes, as its name suggests, that ambient pollutant

levels are proportional to total emissions. The model

is useful only in areas where ambient pollutant levels

are substantial and well-monitored, as in urban areas

with smog problems. * * * But the proportional model

cannot be used to regulate air quality deterioration

in clean-air areas. This is because the assumptions

underlying the model do not hold in clean-air areas,

and also because it is not possible to make accurate

measurements of ambient levels of photochemical pol-

lutants that are substantially below the levels of the

national standards.

Br. for respondent at 32-33 (footnote omitted), eluci-

dating, 39 Fed. Reg. 31006 (August 27, 1974) ; 39 Fed. Reg.

3la

42511 (December 5, 1974); Technical Support Document—

EPA Regulations for Preventing the Significant Deteriora-

tion of Air Quality, U.S. Environmental Protection Agen-

cy, Office of Air Quality Planning and Standards (January

1975), at 21-27 (JA 117-123). EPA concluded that existing

technology ‘‘is inappropriate for analyzing the increment-

al impact of individual new sources’’ with respect to the

four ‘‘automotive pollutants,’’ and that ‘‘[a]t this time,

the only practical approach for dealing with these pol-

lutants appears to be to minimize emissions as much as

possible.’’? 39 Fed. Reg. 42511 (December 5, 1974). EPA

further has contended that ongoing pi. grams toward re-

duction of automotive emissions ‘‘are adequate to prevent

any significant deterioration due to sources of carbon

monoxide, hydrocarbons or nitrogen oxides.’’ *°

Petitioners have emphasized that the four omitted pol-

lutants can have extremely adverse effects on public health

and welfare, and have noted that they are emitted by

stationary sources as well as by moving vehicles. Peti-

tioners have not, however, directly clashed with EPA’s

contention that it does not have technology or modeling

techniques rationally to regulate emissions on a case-by-

ease basis. This is the type of policy decision in which

the Agency’s developed expertise is heavily implicated,

and with which the court will not tamper so long as the

decision was rational and based on consideration of the

relevant factors. Ethyl Corp. v. EPA, supra, U.S.

App.D.C. at - , F.2d at - , slip op. at

66-74. Given the absence of any direct denials of EPA’s as-

sertions on this point, the Agency is entitled to claim

the presumption of validity which attends its actions. /d.,

slip op. at 68. We therefore hold that EPA did not act un-

lawfully in excluding from its regulations the four ‘‘auto-

motive pollutants.”’

49 39 Fed. Reg. 31006 (Aug. 27, 1974).

32a

C. Are Class II and Class III invalid as permitting

significant deterioration of air quality?

D. Is it unlawful to make determinations as to per-

missible air quality deterioration on the basis of

considerations other than air quality?

It is argued by Sierra Club that Classes IJ and ITI, by

permitting increases in sulfur dioxide and particulate mat-

ter pollution to levels which in some areas may be many

times present concentrations, allow significant deteriora-

tion of air quality. The ‘‘signifieance’’ is primarily a matter

of the numbers involved; although evidence has been pre-

sented that levels of pollution below the national secondary

standards may have adverse health effects, it is for the

Administrator rather than the courts to determine that

the national secondary standards no longer can be said to

protect the public from ‘‘any known or anticipated adverse

effects’’ of a pollutant. The question of significance thus

leads by implication to a second line of argument—that it is

unlawful to consider deterioration of air quality ‘‘insig-

nificant’’ simply because it accompanies normal, controlled

economic development.

EPA recognized, in developing the concept of ‘‘signifi-

cant deterioration’’ pursuant to Judge Pratt’s order, that

‘*[pjending the development of adequate scientific data on

the kind and extent of adverse effects of air pollutant levels

below the secondary standards, significant deterioration

must necessarily be defined without a direct quantitative

relationship to specific adverse effects on public health and

welfare.’’ 39 Fed. Reg. 18987 (July 16, 1973). It therefore

determined that each state must determine what level of

°° Br. for petitioners Sierra Club et al., No. 74-2063, at 18-20. See

also Clean Air Act Amendments of 1976, Report of the Senate

Committee on Public Works, 8. Rep. No. 94-717 at 19-27 (March

29, 1976); Clean Air Act Amendments of 1976, Report of the

House Committee on Interstate and Foreign Commerce, H.R. Rep.

No. 94-1175 at 83-116 (May 15, 1976).

33a

incremental pollution, taking into account the air quality

and social and economic needs and objectives of the area,

would be ‘‘significant deterioration’’ of its air quality.”

In that context, it was a rational policy decision that

the significance of deterioration of air quality should be

determined by a qualitative balancing of clean air con-

siderations against the competing demands of economic

growth, population expansion, and development of alter-

native sources of energy. The approach provides a work-

able definition of significant deterioration which neither

slifles necessary economic development nor permits un-

regulated deterioration to the national standards. We

therefore find that EPA acted within the discretion it is

granted as to matters of policy in choosing this design

to prevent significant deterioration of air quality.

We may state our belief, as a general overview at this

point, that for the most part it somewhat misses the

mark to raise objections to the specific emission limits

of the regulations under review. EPA has emphasized

that the individual states are free to conceive and adopt

their own methods of preventing significant deteriora-

tion. A state may use EPA’s system to classify itself as

industrial-metropolitan (Class II1), as anticipating nor-

mal economic growth (11), or as desirous of protecting its

clean air (1). But it also may develop its own scheme,

°! See pp. [10a-1la] supra.

*? EPA acknowledges that all states theoretically could reclassify

to Class III, thereby permitting unregulated deterioration to the

national standards. It asks that the states not ‘‘arbitrarily and

capriciously ’ disregard its outlined considerations before redesig-

nating areas. 40 C.F.R, § 52,.21(¢) (3) (vi) (@).

58 “* However formal tiie type of ageney proceeding, an agency's

policy choices are reviewed under the arbitrary and capricious

standard, which asks merely whether the policy choice is rationally

connected to its factual basis.’’ Judicial Review of the Facts in

Informal Rulemaking: A Proposed Standard, 84 Yaue L. J. 1750,

1751 (1975).

34a

based on its own needs, so long as the regulatory structure

prevents significant deterioration of air cleaner than the

national standards. Given the broad power vested in the

states to alter or amend these regulations, we find little

merit in objections to the specifics of the classification

scheme itself.

E. Has the effective date of the regulations been post-

poned unlawfully beyond the date contemplated by

the Clean Air Act?

The Clean Air Act of 1970 imposed a series of time limits

for the various steps leading up to approval of state im-

plementation plans. Under that timetable regulations

should have become effective by the middle of 1972."

The regulations employ two later effective dates. First,

emissions increments are measured from a January 1, 1975

baseline, and all sources for which ‘‘approval’’ is given

after that date will have their emissions counted against

the allowable increment for the region. 40 C.F.R. § 52.21

(d)(2)(i) (1975). Seeond, preconstruction review is pro-

vided only for sources which have ‘‘not commenced con-

struction or modifica‘ion prior to June 1, 1975.’’ 40 C.F.R.

§ 52.21(d)(1) (1975). ‘* ‘Commenced’ means that an owner

or operator has undertaken a continuous program of con-

**The Clean Air Act Amendments of 1970 were added on Dec.

31, 1970, 84 Svar. 1677, The Administrator was given 90 days in

which to propose and promulgate national primary and secondary

ambient air quality standards. Section 109(a)(1)(B), 42 U.S.C.

§ 1857e-4(a)(1)(B). The states then were given nine months to

submit proposed implementation plans to the Administrator, § 110

(a)(1), 42 U.S.C. § 1857e-5(a) (1), and the Administrator had four

months to approve or disapprove the plans. Section 110(a) (2), 42

U.S.C. § 1857e-5(a) (2). The Administrator. was to ‘‘ promptly pre-

pare and publish’’ implementation plans for states which failed to

submit a complying plan or which failed to revise a plan after 60

days notice. Section 110(¢), 42 U.S.C § 1857e-5(e). The target date

for effectiver.ess of state implementation plans was therefore mid-

1972.

35a

struction or modification or that an owner or operator has

entered into a contractual obligation to undertake and com-

plete, within a reasonable time, a continuous program of

construction or modification.’’ 40 C.F.R. § 52.21(b)(7)

(1975). Compare 40 C.F.R. §52.01(b) (1975). All later-

commenced source construction must be reviewed for zom-

pliance with new source performance standards and for

a determination that construction will not cause the pollu-

tion increments of any area to be violated. 40 C.F.R. § 52.21

(d)(2) (1975), as amended, 40 Fed. Reg. 42011 (September

10, 1£75).

We are asked to hold that sources for which construc-

tion was commenced after mid-1972 must be counted

against the allowable pollution increments for the various

regions. EPA answers that inclusion of the earlier con-

struction would limit practical use of the regulations to

regulate future development. We accept the latter position.

Whatever the effect of past construction has been upon

present pollution, each state must determine what will be

appropriate for future air quality and economic develop-

ment. So long as any state may choose to limit future de-

velopment to compensate for excessive past pollution, the

choice of starting dates for the applicability of the regula-

tions appears to be irrelevant.” For the same reason we

do not believe EPA acted unreasonably in failing to count

increases in pollution since 1972 against the allowable in-

crements. It was a rational policy decision to limit the in-

stant regulations to prospective concerns only.

F. Is it arbitrary and capricious to review proposed

construction of stationary sources on the basis of

5° Similarly, we find no ground for objection to the manner in

which EPA has defined commencement of construction. 40 C.F.R.

§ 52.21(b) (7) (1975). Even if a source on which construction has

‘‘eommenced’’ is not subject to preconstruction review, its emis-

sions may be considered in choosing the appropriate pollution in-

crement to be applied to the area.

36a

compliance with the New Source Performance Stand-

ards, rather than on the basis of Best Available Con-

trol] Technology on a case-by-case basis?

G. Was the Administrator required to provide for pre-

construction review of all sources, rather than for

‘*significant’’ sources only?

40 C.F.R. § 52.21 (d) (ii) (1975) requires that new sources

which are subject to preconstruction review meet the level

of emissions that would be achieved by application of the

Best Available Control Technology (BACT) ; Section 52.01

(f) defines BACT as equivalent to the New Source Per-

formance Standards (NSPS) promulgated under Section

111 of the Clean Air Act, 42 U.S.C. § 1857¢e-6 (1970),

amended (Supp. IV 1974), when those standards are avail-

able. If no NSPS has been established for a category of

sources, preconstruction review of emission reduction sys-

tems is done on a case-by-case basis. 40 C.F.R. §§ 52.21(d)

(2) (ii), 52.01(f) (1975). The Sierra Club posits that the

NSPS guidelines, defined by Section 111 as ‘‘the degree

of emission limitation achievable through the application

of the best system of emission reduction which (taking

into account the cost of achieving such reduction) the Ad-

ministrator determines has been adequately demon-

strated,’’ are a ‘‘lowest common denominator’’-based

group and are inconsistent with the policy of nondeteriora-

tion.

We accept EPA’s response that case-by-case review of

all new sources would not only be unworkable, but would

undermine Sectior 111 by limiting its application of NSPS

to those areas which have not yet achieved the national

secondary standards. It appears, in addition, that appli-

cation of NSPS rather than BACT will not of necessity

lead to more total pollution; a given area still is limited

to the specified increment for its classification, and the use

of a less effective emission reduction system by one new

statutory source will simply use up more of the allowable

37a

increment and limit opportunities for other proposed new

sources. This trade-off, between types of control systems

and opportunities for new source construction, is best left

to the states, which by delegation will administer the pre-

construction review. As the Supreme Court held in Train

v. NRDC, supra, ‘‘so long as the ultimate effect of a State’s

choice of emission limitations is compliance with the na-

tional standards for ambient air, the State is at liberty to

adopt whatever mix of emission limitations it deems best

suited to its particular situation.’’ 421 U.S. at 79. We

therefore hold that the use of NSPS is rational and in

accord with the Clean Air Act.

An additional challenge to the procedures for precon-

struction review is based on the allegedly unlawful limita-

tion of review to 19 specified categories of sources.** We

56° Tne 19 listed categories are:

(i) Fossii-Fuel Steam Electric Plants of more than 1000

million B.T.U. per hour heat input.

(ii) Coal Cleaning Plants.

(iii) Kraft Pulp Mills.

(iv) Portland Cement Plants.

(v) Primary Zine Smelters.

(vi) Iron and Steel Mills.

(vii) Primary Aluminum Ore Reduction Plants.

(viii) Primary Copper Smelters.

(ix) Municipal Incinerators capable of charging more than

250 tons of refuse per 24 hour day.

(x) Sulfurie Acid Plants.

(xi) Petroleum Refineries.

(xii) Lime Plants.

(xiii) Phosphate Rock Processing Plants.

(xiv) By-Product Coke Oven Batteries.

(xv) Sulfur Reeovery Plants.

(xvi) Carbon Black Plants (furnace process).

(xvii) Primary Lead Smelters.

(xviii) Fuel Conversion Plants.

(xix) Ferroalloy production facilities commencing construe-

tion after October 5, 1975.

40 C.P.R. § 52.21(d)(1)(i)-(xix) (1975), as amended, 40 Fed.

Re, 42011 (Sept. 10, 1975).

38a

find this argument subject to the analysis presented above

with respect to use of NSPS rather than BACT. Review of

every new souree of pollution clearly would be impossible

since every gas- or oil-heated house is a source of some

pollution. The decision to review only these sources which

emit more than 25 pounds per hour of sulfur dioxide or

particulate matter does not mean there will of necessity

be more total pollution; it means only that a large number

of minor sources could use up the area’s allowable incre-

ment and thereby preclude construction of new major

sources of pollution. As EPA stated in a document explain-

ing its regulations:

The 18 categories which are covered by the regula-

tion, except for fuel conversion plants, are the largest

present emitters of SO. and TSP on a nationwide

basis. Fuel conversion plants (coal gasification and

liquefication, oil shale processing, ete.) were included

due to their significant growth potential, particularly

in presently clean aveas * * *. The air quality impact

of sources not included in the 18 categories is taken

into account since the total air quality deterioration

above the baseline is taken into account when an ap-

plication to construct a new source of one of the

18 categories is reviewed.

°* The standard of 25 pounds/hour 0. emissions for addition of

new categories to the list of those subject to preconstruction review

was proposed on June 9, 1975 (40 Fed. Reg. 24534) and adopted

Sept. 10, 1975 (40 Fed. Reg. 42011) ;

[T]he criteria the Administrator intends to use in adding

further sources in the future * * * are:

(1) a new source performance standard for sulfur di-

oxide (SO,) or particulate matter his been established for

the source or any facility of the source under Part 60 of

this chapter, and (2) the established new source perform-

ance standard will allow any anticipated future plant af-

fected by the standard to emit SO, or particulate matter

in excess of 25 pounds per hour from the affected facility

or facilities when operating at maximum design capacity.

The later notice also added the 19th category, Ferroalloy production

faciliti

39a

Technical Support Document—EPA Regulations for Pre-

venting the Significant Deterioration of Air Quality, U.S.

Environmental Protection Agency, Office of Air Quality

Planning & Standards (January 1975), at 27-28. Further,

it is within the power of the various states to enact more

stringent controls, and expanded preconstruction review

procedures, should limited review lead to problems in

regulating incremental pollution. We therefore hold that

the regulations are not invalid insofar as ptovision is

made for preconstruction review of only the specified

categories of stationary sources.

H. Are the regulations arbitrary and capricious on the

ground that the allowable increments are unrelated

to anticipated adverse effects on public health and

welfare?

The regulations under review establish a classification

scheme which is not besed on demonstrated adverse air

quality effects, but rather on a balancing of concerns with

air quality, economic and social needs and objectives, and

development of energy sources. The industrial petitioners

contend that EPA is not authorized to promulgate regula-

tions which are not related to adverse air quality effects,

and that Classes I and II therefore are invalid.

The need to prevent significant deterioration of air

cleaner than the national stardards, and the statutory

authorization therefor, was settled by the Sierra Club

v. Ruckelshaus litigation. It clearly is a rational legislative

purpose to protect and enhance the quality of the nation’s

air, even in the absence of quantified evidence of adverse

effects.”

°° EPA emphasized in promulgating regulations that levels of

pollution below the national standards still may have some adverse

effects :

Limitations on air quality that result in cleaner air than

the national ambient air quality standards cannot * * * be

{continued |

40a

The District Court order in Sierra Club v. Ruckelshaus

mandated that EPA enforce this legislative purpose by

preventing significant deterioration of air quality, but

left definition of ‘‘significant’’ to the Agency. EPA’s solu-

tion was a definition created by its own implementation;

each state’s evaluation of the relative importance of the

competing interests which surround continued maintenance

of air quality will determine what level of deterioration

would be significant for that state. The three classifications

thus are not intended to represent a scientific conclusion

as to what constitutes significant deterioration; rather,

they are suggested frameworks for use by the states after

independent evaluation. Because the regulations do not

purport to be mandatory requirements based on scientific

research, they properly cannot be judged by asking whether

based on any quantitative measure of harm to either public

health or welfare. This is not, however, to say that there are no

possible unquantified adverse effects on public health or welfare

below the levels of the national standards. Examples of such

unquantified effects involve the transformation of sulfur dioxide

into suspended sulfates and sulfurie acid aerosols, resulting in

posible effects on health, visibility, climatic changes, acidity of

rain, and deterioration of materials. '

Since there is no way to relate ‘‘significance’’ of deteriora-

tion of air quality to any adverse effects resulting from air

quality levels cleaner than the national standards, EPA con-

cluded that the determination of what is ‘‘significant’’ deterio-

ration must take into account factors other than air quality

alone. For example, relatively minor deterioration of the aes-

thetic quality of the air may be very significant in a recreation-

al area in which great pride (and economic development)

is derived from the ‘‘clean air.’’

Technical Support Document—EPA Regulations for Preventing

the Significant Deterioration of Air Quality, U.S. Environmental

Protection Agency, Office of Air Quality Planning & Standards

(January 1975), at 6. See also Clean Air Act Amendments of 1976

Report of the Senate Committee on Public Works, 8S. Rep. No. 4.

717 at 19-27 (March 29, 1976) ; Clean Air Act Amendments of 1976,

Report of the House Committee on Interstate and Foreign Com-

merce, H.R. Rep. No. 94-1175 at 23-116 (May 15, 1976).

4la

the increments are related to demonstrated health effects.

As we have noted above, any state could adopt even more

stringent regulations by proposing its own revision to its

implementation plan.”

We therefore find insubstantial the objection that the

varying allowable increments presented in the instant regu-

lations are unrelated to demonstrated adverse health

effects. The regulations flow from a valid legislative goal,

and we believe EPA has acted reasonably in permitting

each state, in its informed discretion, to develop a workable

definition of significant deterioration.

I. Are the regulations unworkable because present

modeling techniques are inadequate to predict pre-

eisely how a new source will affect the ambient air?

Some metitioners “ have objected that present computer

modeling technology is inadequate to predict with precision

what effiect a proposed new source will have on the am-

biemt air, and therefore on the allowable inerement for a

given region. BPA Goes not dispwite the point as to the

accuracy of existing techniques, hut does argue that present

diffusion modeling techniques, ‘while not corresponding to

actual conditions in the ammlment air, do provide a consistent

and reproducible guide which ean be used in comparing the

relative impact of a sownce.’’ 39 Fed. Reg. 31003 (August

27, 1974). Se lomg as the method of measurement -is con-

sistent, it may be used as a reliable benchmark of the rela-

tive impact of different sources; EPA argues that it there-

fore is unnecessary to be able to guarantee with precision

what effect a source will have.

We have no basis on which to question EPA’s judgment

as to its predictive techniques. Any consistent method of

%® See pp. [l4a-l5a] supra.

See, e.g., br. of American Petroleum Institute et al. in No. 7-

1665 at 38.

42a

prediction can be adjusted in light of actual experience,

and a state therefore may adjust its guidelines for future

development on the basis of changes in the measured pol-

lution levels over time. We cannot hold at this time, there-

fore, that lack of precision alone is a substantial objection

to the methods which may be used to estimate the impact

of a proposed source on actual levels of pollution.

J. Did EPA violate the Clean Air Act

(1) by nov permitting submission of revised plans

before promulgating regulations, or

(2) by not holding hearings in each state before

promulgating the regulations?

The Administrator is required to prepare and publish

his own implementation plan, or portion thereof, for a

state if (a) the state fails to submit a plan as to any na-

tional standard, (b) the plan is not in accordance with the

requirements of Section 110 of the Act, or (c) the state

fails, within 60 days, to revise its plan pursuant to Section

110(a)(2)(H), which requires that implementation plans

proyide for revisions (i) to take account of changes in

technology or (ii) if the Administrator determines that the

plan is inadequate to achieve the primary or secondary

standards. Section 110(c)(1), 42 U.S.C. § 1857e-5(e) (1)

(Supp. IV 1974). Subsection (c)(1) also contains a hearing

requirement; if a state did not hold a public hearing with

respect to the plan or revision being promulgated, the

Administrator must provide a hearing within the state.

The Administrator is to promulgate his regulations within

six months, unless within that time the state has adopted

and submitted an implementation plan which is in accord

with the requirements of Section 110. Jd.

It is contended that the instant regulations, which

amended the implementation plans of all states," consti-

** See note 9 supra.

43a

tuted a ‘‘revision’’? under Section 110(a)(2)(H). Under

Section 110(c)(1)(C) the Administrator may promulgate

new regulations only if a state fails, after 60 days, to sub-

mit the required (a)(2)(H) revision. Further, if the regu-

lations are considered ‘‘revisions,’’ it is claimed, the Ad-

ministrator was required by Section 110(c)(1) to hold a

hearing in each state before promulgating the regulations.

The original order of the District Court required that

the ‘‘Administrator * * * prepare and publish proposed

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

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

permits the significant deterioration of existing air qrality

in any portion of any state or fails to take the measures

necessary to prevent such significant deterioration. Such

regulations shall be promulgated within six months of this

order.’’ Sierra Club v. Ruckelshaus, Civil Action No. 1031-

72 (D. D.C. May 30, 1972). That order—which was affirmed

by this court and the Supreme Court—clearly did not con-

template that a hearing be held in each state prior to prom-

ulgation of regulations, nor did it require that the states

be given a prior opportunity to revise their plans. We re-

affirm the order in both respects.

All states had held public hearings on their proposed im-

plementation plans before the District Court order was en-

tered.” After disapproving all state plans insofar as they

failed to prevent significant deterioration,” the Adminis-

trator held five regional hearings in Washington, Atlanta,

Dallas, Denver, and San Francisco on proposed regula-

tions,“ and solicited written comments.” We believe that

6? Tn its initial approval and dise.pproval of state plans, published

May 31, 1972 (37 Fed. Reg. i0842), EPA noted that all states hav

held hearings and had submitted implementation pl.ns.

“° 37 Fed. Reg. 23836 (Nov. 9, 1972).

** See 39 Fed. Reg. 31000 ( Aug. 27, 1974).

* Jd.

44a

procedure was sufficient in the circumstances presented.

Unfortunately, the requirement of prevention of significant

deterioration does not fit neatly into the statutory scheme,

as it is not expressly included in Section 110 of the Act.

The Administrator’s disapproval of all plans pursuant to

the District Court order, and the subsequent promulgation

of regulations, were required by Section 101 of the Act and

by the legislative history, but were not within the defined

processes of Section 110(c). Implementation of the Dis-

trict Court order required an exercise of discretion by the

Administrator, and we find that he acted well within that

discretion by concluding that only regional hearings were

necessary to supplement the hearings which had already

been held in all states.

In making this decision we wish to emphasize, first, that

petitioners have not alleged with any specificity how they

were harmed by the lack of individual] state hearings. We

are presented only with a generalized statutory claim,”

which apparently never was raised before the Agency.

Second, it should be remembered that the states arguably

have been denied no rights by promulgation of the nonde-

terioration regulations. They remain free, after public

hearing, to develop their own regulatory scheme to sup-

plant that promulgated by EPA, so long as the substitute

°° Cf. American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310,

318-319, 359 F.2d 624, 632-633, cert. denied, 385 U.S. 843 (1966) -

{T}here is no basis on the present record for concluding that

additional procedures were requisite for fair hearing. We might

view the case differently if we were not confronted solely with

a broad conceptual demand for an adjudieatory-type proceed-

ing, which is at least consistent with, though we do not say it is

attributable to, a desire for protracted delay, Nowhere in the

record is there any specific proffer by petitioners as to the sub-

jects they believed required oral hearings, what kind of facts

they proposed to adduce, and by what witnesses, etc. * * *

See also United States v. L. A. Trucker Lines, Inc., 344 U.S. 33

(1952).

45a

preverts significant deterioration of air quality.” We can-

not conclude, then, that the regulations are defective on

procedural grounds.

K. By providing for reclassification of federal and In-

dian lands independent of state action, do the regu-

lations abrogate authority granted to the states by

the Clean Air Act?

Federal land managers and Indian governing bodies are

authorized to propose redesignation of their lands, ‘after

consultation with officials of other affected areas and com-

pliance with procedural and hearing requirements. 40

C.F.R. § 52.21(e)(3) (1975).*° The industrial petitioners

and the petitioning state governments object that this au-

thority violates the delegation to the states of authority

over air quality within their boundaries in Section 101(a)

(3), 42 U.S.C. § 1857 (a) (3), and Section 107(a), 42 U.S.C.

§ 1857¢-2(a),” that it contradicts the submission of federal

facilities to state regulation in Section 118, 42 U.S.C.

®t See pp. [14a-15a] supra.

68 See pp. [lla-12a] supra.

6° 42 U.S.C. § 1857(a)(3) (1970):

(a) The Congress finds—

(3) that the prevention and control of air pollution at its

source is the primary responsibility of States and local gov-

ernments!. |

7 42 U.S.C. § 1857e-2(a) (1970):

Each State shall have the primary responsibili

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