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

No. 76-529

MONTANA POWER COMPANY, ET AL.,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

ET AL.,

Respondents.

and Nos. 76-585, 76-594, 76-619, 76-603, 76-620

On Petitions for Writs of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR INTERVENOR RESPONDENTS

IN OPPOSITION

BRUCE J. TERRIS

NATHALIE V. BLACK

1908 Sunderland Place, N.W.

Washington, D.C. 20036

Attorneys for Intervenor Respondents

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

TABLE OF CONTENTS

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A Ee

QUESTIONS PRESENTED ..........2 eee

STATUTE AND REGULATIONS INVOLVED ..........

SII Sipsintutehctenahtibcistinieioenaiectbiinebicsiibiibennsisitepsincbmeevennin

i LN ee ieee

III sensitterumeeusetnesseniemnpsenmanmanenoctiasencenctteansaniee 20

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TABLE OF CASES AND AUTHORITIES

CASES:

Big Rivers Electric Corp. v. EPA, 523 F.2d 16

SS 0 ee ee ee ee

City of Eastlake v. Forest City Enterprises, Ine.,

44 Law Week 4919 (1976) ..........0000000000cc

District of Columbia v. Train, 521 F. 2d 971 (C.A.

D.C. 1975), certiorari granted, 44 Law Week

ENR Sa ee EN eke Ae mint

FEA v. Algonquin SNG, Inc., 96 S.Ct. 2295

ERRORS ONG EARN IP

Hampton & Co. v. United States, 276 U.S. 394

(ERIM, SERRE Se- os aceon Ret SAS ea Pe a

Hancock Vv. Train, 96 S.Ct. 2006 U.S. (1976) ........

Lichter v. United States, 334 U.S. 742 (1947)....

Mastro Plastics Corp. v. NLRB, 350 U.S. 270

a aaa

National Cable Television Assn. Vv. United States,

I

NLRB V. Fruit and Vegetable Packers, 377 U.S. 58

RS a OT A Wek eR TF

National League of Cities v. Usery, 96 S. Ct. 2465

EMRE iecdsstaieesiaanin alia dieabacduasaaaatibaeenbaialadduatin aden

NRDC v. EPA, 489 F.2d 390 (C.A. 5, 1974), re-

versed on other grounds, sub nom. Train V.

I I a eset

NRDC v. EPA, 507 F.2d 905 (C.A. 9, 1974) wae

Schwegmann Bros. v. Calvert Distillers Corp., 341

a

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

(D.D.C. 1972), affirmed 4 ERC .315, affirmed

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

CIID cencescncassesantnnuitesiennipneicsncenstsimpesciatinianndainieennien’ 4,

Union Electric Co. v. EPA, 515 F.2d 206 (C.A.

8, 1975), affirmed, —— U.S. ——, 96 S.Ct. 2518

ITI’ Acichskdaubibininieteintaidentphdtaediiinmdpeieat Raa Di ia

United States v. L.A. Tucker Truck Lines, 344 U.S.

Sy ED cicdiitceniintiieaiicdanan ‘siaacarhtipideiiacmsinn Aiiedesaiad tobi

Page

10

13

15

13

13

10

14

10

13

10

14

13, 19

ee

Ill

TABLE OF CASES AND AUTHORITIES—Continued

Page

STATUTES:

I i 3

Clean Air Act,

8! cE ee 4

RIES sce ee 10, 15

REGULATIONS:

ES Eee SO 7

ee en I OT ceneisisseemmenpatosinenateiibi 4

Ee ne ee a 4

ee ry I oo inctncsmnssvcccescene SP sas 18

ee Bs ND ei ccccoccscccserceccecoccscestocvccess 15

GD Fe I OD GOD cececcccceccscccncccesesencesosesccceee 18

ee ND ons cscecenrnenssnennctonsnese 18

i OS. sssaiaeedenopeannetenons 15, 18

i usinueeenennniie 14

ee ee 19

TI 0 cigichbbnioinacesioonses 19

ee een 15, 19

The National Air Pollution Control Administra-

tion, Guidelines for the Development of Air

Quality Standards and Implementation Plans,

I a aeseeicionetineancinianindaes 5

LEGISLATIVE MATERIALS:

Hearings on Air Quality Criteria, 90th Cong., 2d

I a ai i aticteae 16

Hearings on Air Pollution before the Subcommittee

on Air and Water Pollution of the Senate Pub-

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

SII. siinniedsdineidlpeinadsandenteielsiatiipumipntmenttindedend: 5, 6, 16

Hearings on Air Pollution Control and Solid Waste

Recycling before the Subcommittee on Public

Health and Welfare of the House Interstate

and Foreign Commerce Committee, 91st Cong.,

8 eee 5

IV

AUTHORITIES CITED—Continued

Page

Hearings before the Subcommittee on Air and

Water Pollution of the Senate Public Works

Committee, 98d Cong., Ist Sess. (1978) ............. 7

Hearings on Implementation of Transportation

Controls before the Subcommittee on Air and

Water Pollution of the Senate Committee on

Public Works, 93d Cong., Ist Sess. (1973) ........ 17

H.Rep. No. 1175, 94th Cong., 2d Sess. (1976)....8, 9, 17

S.Rep. No. 1196, 91st Cong., 2d Sess. (1970) ...... — > |

S.Rep. No. 717, 94th Cong., 2d Sess. (1976) .......... 9

H.R. 10498, 94th Cong., 2d Sess. (1976) 0.0.0.0... 8,17

§.3219, 94th Cong., 2d Sess. (1976) 0000000000... 8,17

fe S&S | RS SE UE SEES are 10

122 Cong. Rec. S17674 (1976) ...........cccccccccccccceeeesce. : 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-529

MONTANA POWER COMPANY, ET AL.,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

ET AL.,

Respondents.

No. 76-585

AMERICAN PETROLEUM INSTITUTE, ET AL.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

No. 76-594

INDIANA-KENTUCKY ELECTRIC CORPORATION, ET AL.,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

ET AL.,

Respondents.

No. 76-619

UTAH POWER & LIGHT COMPANY, ET AL.,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

ET AL.,

Respondents.

No. 76-603

ALABAMA POWER COMPANY, ET AL.,

Petitioners,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

Respondents.

No. 76-620

WESTERN ENERGY SUPPLY AND TRANSMISSION ASSOCIATES,

ET AL.,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

ET AL.,

Respondents.

On Petitions for Writs of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR INTERVENOR RESPONDENTS

IN OPPOSITION '

OPINION BELOW

The opinion of the court of appeals has been officially

reported at 540 F.2d 1114. It is set out as an appendix

to several of the Petitions for Writs of Certiorari.’

JURISDICTION

The judgment of the court of appeals was entered on

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

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether the requirement of the Clean Air Act that

the clean air resources of the Nation be protected from

significant deterioration should be reconsidered by this

Court when it has been twice determined by the Court

of Appeals for the District of Columbia Circuit, has re-

ceived judicial approval from several other courts of ap-

peals, has been ratified by the Congress, and is fully sup-

ported by the Act and by its legislative history.

2. Whether the Clean Air Act, in its prohibition

against the significant deterioration of existing air

quality, or the regulations promulgated to carry out the

Act violate any constitutional prohibition.

1The intervenor respondents are the Sierra Club, the Oregon

Environmental Council, Susan L. Moore, Sally Rodgers, Stephen

Winter, and John Tanton.

2 References to the court of appeals opinion and judgment will

hereafter be made to the appendix to the petition in No. 76-529.

4

8. Whether the regulations are arbitrary and capri-

cious because the pollution increments established by

them are not directly related to specific adverse effects

or because there are not sufficient data and modeling

techniques to make them workable.

4. Whether the regulations, insofar as they allow fed-

eral agencies managing federal lands to designate these

areas in such a manner as to allow less degradation of

air quality, are arbitrary and capricious.

5. Whether the procedures followed by the Environ-

mental Protection Agency in promulgating the regula-

tions to prevent significant deterioration of air quality

were in conformity with the Clean Air Act.

STATUTE AND REGULATIONS INVOLVED

Excerpts from the Clean Air Act, 42 U.S.C. 1857, et

seq., are set out in the Petition, No. 76-529, Appendix

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

are also set out in that Petition, Appendix B.

STATEMENT

Respondents adopt the Statement set out in the Pe-

tition for a Writ of Certiorari, No. 76-617, Sierra Club,

et al. v. Environmental Protection Agency, et al.

ARGUMENT

1. The industry petitioners seek to have this Court

determine that the Clean Air Act of 1970 does not au-

thorize the Environmental Protection Agency to prevent

significant deterioration of air quality. In short, they

seek the overturn of Sierra Club v. Ruckelshaus, 344

F.Supp. 253 (D.D.C, 1972), affirmed per curiam, 4 ERC

1815, affirmed by an equally divided Court sub nom.

5

Fri Vv. Sierra Club, 412 U.S. 541 (1973). This determi-

nation was reaffirmed by the court below.’ We submit

that the decisions were correct and need not be reviewed

by this Court.

As the court of appeals noted Petition, No. 76-529,

pp. 17a-18a) the policy of preventing significant de-

terioration was part of the clean air statute even before

1970. The National Air Pollution Control Administra-

tion, the predecessor of EPA, adopted Guidelines for the

L evelopment of Air Quality Standards and Imp!-menta-

tion Plans in 1969 that stated (Section 1.51) :

[Ajn explicit purpose of the Act is “to protect and

enhance the quality of the Nation’s air resources.”

Air quality standards which, even if fully imple-

mented, would result in significant deterioration of

air quality in any substantial portion of an air re-

gion clearly would conflict with this expressed pur-

pose of the law.

During the hearings on the 1970 amendments, Under-

secretary Veneman of HEW (which then enforced the

1967 statute) presented Secretary Finch’s statement to

both Houses :*

{O|ne of the express purposes of the Clean Air Act

is “to protect and enhance the quality of the Na-

tion’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 of the Act. We shall continue to ex-

8’ The two decisions of the court of appeals were unanimous. The

judges who participated were McGowan, Robb, Danaher, Wright,

Robinson, and Wilkey.

* Hearings on Air Pollution before the Subcommittee on Air and

Water Pollution of the Senate Public Works Committee, 91st Cong.,

2d Sess. 132-133 (1970); Hearings on Air Pollution Control and

Solid Waste Recycling before the Subcommittee on Public Health

and Welfare of the House Interstate and Foreign Commerce Com-

mittee, 91st Cong., 2d Sess. 297 (1970).

6

pect states to maintain air of good quality where

it now exists.

After presenting this statement to the Senate Committee,

Undersecretary Veneman expanded upon it, adding:°

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

area has air quality which is better than the na-

tional standards, they would be required to stay

there and not pollute the air even further, even

though they may be below national standards.

The Undersecretary then was asked by Senator Cooper :*

I notice some place in your statement * * * you

said that if a region or an area had a certain

air quality which might be higher than other areas

of the country, that that would be maintained. It

could not be degraded; is that correct?

Mr. Veneman. Yes. We pointed out we did not

want deterioration of the air in those areas that

may be below what the standard is at the present

time.

During the House hearings on the 1970 legislation,

a witness for the chemical industry urged the committee

to modify the provisions which he described as an un-

qualified prohibition of degradation.’ In response, Con-

gressman Rogers stated :*

If we pursue that philosophy where we say we are

not going to do anything in the clean area where

we know it will contribute to the environment then

we simply set the stage for allowing that area to

be polluted up to the point where we have to come in

in a drastic way later, whereas if we start with

* Senate Hearings, supra, p. 143.

* Id. at 159.

* House Hearings, supra, p. 465.

* Jd. at 475.

7

any clean air areas and try to keep them clean

then we don’t have to go back like we are thinking

of doing now * * *.

The Senate Report on the 1970 amendments made clear

that no state implementation plan permitting significant

deterioration of air quality should be approved :°

In areas where current air pollution levels are al-

ready equal to, or better than, the air quality goals,

the Secretary should not approve any implementa-

tion plan which does not provide, to the maximum

extent practicable, for the continued maintenance of

such ambient air quality. Once such national goals

are established, deterioration of air quality should

not be permitted except under circumstances where

there is no available alternative. Given the various

alternative means of preventing and controlling air

pollution—including the use of the best available

control technology, industrial processes, and operat-

ing practices—and care in the selection of sites for

new sources, land use planning and traffic controls—

deterioration need not occur.

As a result, after Congress in 1970 readopted the lan-

guage of the 1967 Act (Section 101(b)), EPA adopted

National Primary and Secondary Ambient Air Quality

Standards which provide (40 C.F.R. 50.2(c) ):

The promulgation of national primary and second-

ary air quality standards shall not be considered in

any manner to allow significant deterioration of

existing air quality in any portion of any State.

The chief sponsor of the 1970 amendments, Senator

Muskie declared in opening the 1973 hearings to review

the implementation of that policy :”°

*S. Rep. No. 1196, 91st Cong., 2d Sess. 11 (1970).

1° Nondegradation Policy of the Clean Air Act, Hearings before

the Subcommittee on Air and Water Pollution of the Senate Public

Works Committee, 93d Cong., Ist Sess. 1 (1973).

8

[Tjhe policy of nondegradation * * * was incor-

porated into the 1967 Air Quality Act. It was not

altered in the 1970 clean air amendments. The En-

vironmental Protection Agency’s predecessor for air

pollution, the National Air Pollution Control Ad-

ministration defined this policy in guidelines in 1969.

EPA initially proposed a nondegradation policy in

guidelines for air quality implementation plans in

1971. Subsequently, EPA deleted this policy from

those guidelines and a court challenge ensued. The

courts have upheld the intent of the act. Nondegra-

dation is national policy.

In the most recent session of Congress, amendments

to the Clean Air Act were proposed and extensively

cebated. Although there were some differences between

the House and Senate versions, both of which passed

the respective bodies by substantial margins, each pre-

served the nondegradation policy in a form much like the

EPA regulations."' The report accompanying the House

measure stated :**

The Committee has developed this section to provide

clearer definition of the nearly decade-old policy

(reflected in section 101(b) of the Act) that sig-

nificant deterioration of clean air must be avoided

The report then carefully chronicled the enactment and

implementation of the policy. It noted that EPA’s 1971

adoption of guidelines for implementation plans which

would have permited degradation of air quality to the

level of the national standards constituted a “sudden

The Senate bill, $.3219, passed by a vote of 78 to 13. The

House bill, H.R. 10498, was approved by a vote of 324 to 68. The

conference bill failed to be considered because of a filibuster on the

last day of the Congress by four Senators which prevented it from

coming to the floor before the previously agreed upon adjournment

date. 122 Cong. Rec. S17574 (daily ed. Oct. 1, 1976).

2H. Rep. No. 1175, 94th Cong., 2d Sess. 83 (1976).

-—_

reversal or a policy previously recognized by the Ad-

ministration and by the Congress since 1967 * * *.” Id.

at 84.

The Senate report was equally firm:"

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 NMation’s air resources.” That language was

not altered by the 1970 Clean Air Amendments.

This bill clarifies and details that policy.

The report then quoted from the 1970 Senate report

which it said, “identified the tools necessary to imple

ment a policy to prevent significant deterioration.” Ibid.

The 1976 report further cited the guidelines of the Na-

tional Air Pollution Control Administration, which de

fined the policy and EPA’s original standards which

similarly carried it out. /bid.

These statements put to rest the claims raised by

industry petitioners that the Clean Air Act does not

authorize the prevention of significant deterioration. Even

Congressional opponents of the 1976 amendments, which

would have enacted into the statute a regulatory struc-

ture substantially like, and in some ways identical to, the

EPA regulations, generally did not deny the existence

of the basic policy.‘ Senator Moss, who sought to

13S. Rep. No. 717, 94th Cong., 2d Sess. 20 (1976).

% The petition in No. 76-529 cites (Pet. 21, note 13) several

statements by opponents of the 1976 bill who declared that such

a policy had not been intended by the Congress in 1970. Five of

those cited were not members of Congress in 1970 and therefore

are not in a position to say what was intended.

In any event, this Court has repeatedly pointed out that it is to

the sponsors of legislation, not to the opponents, to which one must

look for the “authoritative guide to the construction of legislation.”

Schegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395

10

amend the bill to provide merely for a one-year study of

nondegradation, nonetheless expressly affirmed the policy’s

existence and would have left in place the current EPA

regulations pending later Congressional action. 122

Cong. Rec. 6667 (daily ed. May 6, 1976).

As the court of appeals stated, “(wje find, in the

legislative history of the Clean Air Act of 1970, a clear

understanding that the Act embodied a pre-existing policy

of nondeterioration of air cleaner than the national

standards.” Petition No. 76-529, p. 17a. Both the con-

temporaneous and the subsequent history fully support

that conclusion.

2. The decision of the court of appeals upholding

EPA’s authority and duty to adopt the regulations at

issue is entirely consistent with the decisions of this

Court and with those of every other court of appeals

which has considered the issue.** The industry petitioners

argue strenuously that three decisions of this Court es-

tablish the principle that only those factors specifically

enumerated in Section 110 of the Act, 42 U.S.C. 1857c-5,

may be required in a state implementation plan and that

therefore no provisions governing the prevention of signi-

ficant deterioration of air quality may be prescribed by

EPA.” The court below rejected this argument, pointing

(1951). Accord, Mastro Plastics Corp. v. NLRB, 350 U.S. 270,

288 (1956); NLRB v. Fruit and Vegetable Packers, 377 U.S. 58,

66 (1964).

15 Four other courts of appeals have expressed their agreement

with the Court of Appeals for the District of Columbia Circuit.

NRDC v. EPA, 489 F.2d 390, 408 (C.A. 5, 1974), reversed on other

grounds sub nom. Train v. NRDC, 421 U.S. 60; Big Rivers Electric

Corp. V. EPA, 523 F.2d 16 (C.A. 6, 1975); NRDC v. EPA, 507 F.2d

905, 913 (C.A. 9, 1974); Union Electric Co. v. EPA, 515 F.2d 206,

220 (C.A. 8, 1975), affirmed on other grounds, ——- U.S. ——, 96

S.Ct. 2518 (1976).

16 Train v. NRDC, 421 U.S. 60 (1975), Hancock v. Train, 96 S.Ct.

2006 U.S. (1976), and Union Electric Co. v. EPA, —— U.S. ——,

96 S.Ct. 2518.

11

out that the issues in those cases were entirely different

since they concerned what could be required in an im-

plementation plan addressed to cleaning up dirty air

rather than what could be required to protect existing

clean air. Petition No. 76-529, p. 26a.

Like most of the detailed provisions of the Act, Section

110 was focused primarily on the immediate need to

meet the crisis caused by high levels of air pollution in

certain areas of the country. Earlier legislation had

given primary responsibility to the States to prevent and

control pollution, through determining both the air quality

standards they would require and the time in which

to meet them. See Train v. NRDC, suprr, 421 U.S. at

65. However, “the response of the States to these mani-

festations of increasing concern with air pollution was

disappointing. * * * Congress reacted by taking a stick

to the States in the form of the Clean Air Amendments

of 1970 * * *.” id. at 64. The “stick” was a set of

explicit requirements—standards, limitations, deadlines

and procedures—with which the States had to comply.

Many of these requirements are contained in Section

110. Since these are addressed to the problem of exist-

ing pollution, the measures required would necessarily

have a heavy impact on existing sources."’ In view of

these potential effects, as well as the fact that less clearly

articulated measures had been ineffective, Congress set

forth carefully the sorts of restrictions it was mandating.

In contrast, the provision in Section 101(b) requiring

the protection of the Nation’s existing, relatively clean

air resources applies to future pollution and therefore

only to future sources which might be introduced into

17 This Court has referred to the 1970 Amendments as “a drastic

remedy to what was perceived as a serious and otherwise uncheck-

able problem of air pollution.” Union Electric Co. v. Environmental

Protection Agency, supra, 96 S.Ct. at 2525.

12

clean air areas. Congress chose not to set forth detailed

measures to control this pollution and left such measures

to EPA. Nonetheless, as we have noted, Congress was

specifically told by the Administration, that, despite the

changes in the Act, it continued its basic protective pur-

pose as to clean air areas. It would be anomalous and

illogical to adopt this “stick” in the form of stricter

standards and detailed requirements in Section 110 and

elsewhere in order to force positive action to clean up

the air resources and simultaneously give up the protec-

tion of clean air which had existed even under the earlier,

less strict statute. There is nothing in the statute or

in its legislative history which would support imputing

such an inconsistent result to the Congress.

The decisions of this Court cited by the industry pe-

titioners merely hold that the list of requirements in

Section 110 of the Act concerning state implementation

plans is exclusive in dealing with the problem of cleaning

up dirty air. None of these decisions considers the issue

of significant deterioration of existing clean air at all.

That requirement is based on Section 101(b) of the

Act. Once the courts determined that Section 101(b)

prohibits significant deterioration, this required, as a

matter of the appropriate remedy, that the states in-

clude effective provisions to carry out this statutory re-

quirement in their implementation plans. This remedy

—of provisions in state implementation plans—has been

adopted both by EPA and by the Congress in the legisla-

tion passed in both Houses.

3. Some of the industry petitioners claim that the

authority given to EPA to protect the nation’s air re-

sources is insufficiently defined by the Clean Air Act,

and hence constitutes an unconstitutional delegation of

legislative power. The basic, oft-repeated rule regard-

13

ing legislative delegation is contained in Hampton &

Co. v. l’nited States, 276 U.S. 394, 409 (1928) :""

If Congress shall lay down by legislative act an in-

telligible principle to which the person or body

authorized to fix such rates is directed to conform,

such legislative action is not a forbidden delega-

tion of legislative power.

Similarly, in City of Eastlake v. Forest City Enterprises

Ine., —— U.S. ——, 44 Law Week 4919, 4921 (1976),

this Court explained:

Courts have frequently held in other contexts that

a congressional delegation of power to a regulatory

entity must be accompanied by discernible stand-

ards, so that the delegatee’s action can be measured

for its fidelity to the legislative will.

There are clearly “an intelligible principle’ and “dis-

cernible standards” involved in this case. Congress made

clear that the principle and standards for measuring

EPA’s actions were to be the protection of existing clean

air.

As we have seen, it was carefully explained to both

Houses of Congress during their consideration of the

1970 Amendments that the term “protect * * * the

quality of the Nation’s air resources” contained in sec-

tion 101(b) of the Act meant that significant deteriora-

tion of existing air quality must be prevented. Indeed,

the language of the district court in Sierra Club v.

Ruckelshaus was little more than an elaboration on the

administrative interpretation which EPA and its prede-

cessor agency had originally taken. The delegation of

congressional power is thus plainly within the limits ap-

18 This language was recently cited by this Court as stating

the basic test in FEA v. Algonquin SNG Inc., U.S. ——, 96

S.Ct. 2295 (1976). See also National Cable Television Assn. Vv.

United States, 415 U.S. 336, 342 (1974).

a

14

proved by this Court in Lichter v. United States, 334

U.S. 742, 785 (1947), quoting from Hampton: “Stand-

ards prescribed by Congress are to be read in the light

of the conditions to which they are to be applied. ‘They

derive much meaningful content from the purpose of the

Act, its factual background and the statutory context

in which they appear.’ ”

4. Some of the industry petitioners urge that the

regulations are improper in that they infringe upon the

powers of the States in violation of the Tenth Amend-

ment to the Constitution. It is well established that the

regulation of air pollution is within the power of the

federal government under the commerce clause of the

Constitution. See Petition No. 76-529, p. 48a and cases

cited at note 77. This court has recently stated (National

League of Cities v. Usery, —— U.S. ——, 96 S. Ct.

2465, 2468 (1976) ):

It is established beyond peradventure that the Com-

merce Clause of Art. I of the Constitution is a grant

of plenary authority to Congress.

Thus the regulations are valid unless they violate some

specific prohibition of the Constitution. One such pro-

hibition is stated in the Usery decision, supra, 96 S.Ct.

at 2475: “Congress may not exercise that power so as

to force directly upon the States its choices as to how

essential decisions regarding the conduct of integral gov-

ernmental functions are to be made.” Such an incursion

on state functions is plainly absent here.

The regulations, in fact, require nothing of the States.

If the States take no positive action, the review of new

polluting sources which is necessary to ensure that the

applicable pollution increments are not exceeded will be

carried out by EPA. 40 C.F.R. 52.21(f). If a State

chooses to conduct such review, it must request delega-

SE —

15

tion of this power.”’ Similarly, if the State wishes to

exercise its powers under the regulations to redesignate

lands within its jurisdiction to more or less restrictive

increment classifications, it is free to do so providing the

procedural steps are followed and the State has the

source review power which is necessary to ensure that

the applicable increments, whatever they may be, will be

met. 40 C.F.R. 52.21(c) (3) (ii), (vi) (a). Until the

State chooses to seek and use this power, the clean air

areas will remain Class II, a classification “applied to

areas in which deterioration normally accompanying mod-

erate well-controlled growth would be considered insignifi-

cant.” 39 Fed. Reg. 42510.

None of these acts, which the States may, but need

not, take, is in any way akin to the “coerced state polic-

ing” found offensive in District of Columbia v. Train,

521 F.2d 971 (C.A. D.C. 1975), certiorari granted, 44

Law Week 3681. Rather, the regulations here fit within

the type of action approved by the court of appeals in

the District of Columbia case (id. at 994, note 27):

The principle at work here is not that the states

have an interest in keeping the federal government

from regulating * * * but rather that they are to be

protected from federal compulsion to exercise state

governmental functions in an area where they choose

to remain inactive. Since the federal government

acts under its commerce power when it enforces its

own regulations * * *, direct federal regulation

by definition involves no intrusion on state sov-

ereignty whatsoever.

Similarly, here the federal government can enforce its

own regulations.

1 Review of new pollution sources is required by Section 110(a)

(2)(D), 42 U.S.C. 1857c-5(a)(2)(D), so that the State can deter-

mine whether a new source will prevent attainment or maintenance

of the national standards. The States therefore have such review

mechanisms and procedures already established.

ee

16

5. The industry petitioners claim that the regulations

are arbitrary and capricious on a variety of grounds.

We submit that none of these arguments represents a

substantial claim.

The regulations establish a reasonable system of pro-

tecting existing clean air by setting certain limits on

the additional pollution which may be emitted into that

air in the future.” The congressional mandate to pro-

tect clean air unlike the national standards relating to

existing pollutants, is not related to specific, known,

quantified adverse effects. The prevention of significant

deterioration is a policy of prudence for the future, en-

acted in the light of an awareness of likely, and even

known but unquantified, adverse effects on human health,

animals, vegetation, materials, and visibility, which are

caused by air pollution at low levels.** In setting the

2° Intervenor respondents submit, however, that the regulations

fail to comply with the Clean Air Act insofar as they (1) allow

the establishment of Class III areas, where any increase in pollu-

tion is permitted as long as the national standards are not exceeded,

and (2) fail to control pollution by four of the six regulated pollut-

ants. See Petition, No. 76-617.

2! Expert testimony before the Congress for several years prior

to passage of the 1970 Amendments had emphasized that there is

no threshold level below which air pollution is not harmful to

health. For example, Dr. G. Hoyt Whipple of the University of

Michigan testified in 1968 that threshold levels are merely a con-

venience so that “one can sleep nights” but that “most threshold

levels are, from a scientific point of view, artifacts of the limits of

measuring techniques or of the experimental design.” Hearings

on Air Quality Criteria, 90th Cong., 2d Sess. 598 (1968). Similarly,

Dr. John Middleton, Commissioner of the National Air Pollution

Control Administration pointed out that “to identify a no-known

effects level ‘is something that would be, in my opinion, not only

extremely difficult but very likely not possible.” Hearings on Air

Pollution before the Subcommittee on Air and Water Pollution of

the Senate Public Works Committee, 91st Cong., 2d Sess. 1489

(1970).

Reflecting these warnings, the Senate report on the 1970 Act

admitted that “a great deal of basic research will be needed to

determine the long-term air quality goals which are required to

A NT — ae

17

Class I and II increments, EPA has adopted a system

which can accommodate both the desire for maximum

retention of clean air and the need to allow for addi-

tional industrial growth.

The extent to which this system carries out the pur-

pose of the Congress is amply demonstrated by the fact

that the 1976 amendments adopted by the House and

the Senate, while differing in some details, are both pat-

terned directly on the EPA regulations and adopt an

increment and classification system. In the case of the

Senate bill, S. 3219, the identical Class I and II incre-

ments of EPA were adopted. The House version, H.R.

10498, chose an increment system based on percentages

of the national standards, but the resulting figures were

virtually the same as the EPA increments for Class I

and II. Thus, Congress clearly approved the increment

protect the public health and welfare from any potential effects of

air pollution.” S. Rep. No. 1196, 91st Cong., 2d Sess. 11. In explain-

ing the need for Section 103(f) of the Act, which provides for

special emphasis on research on air pollution effects, the report

pointed out that, while there is enough knowledge of acute effects

to develop standards, “our knowledge of some of the chronic effects

involving extended exposure over a period of years is limited.”

S. Rep. No. 1196, supra, p. 7. Senator Muskie later explained that

the “standards as set under the 1970 act were conceived of as pos-

sible threshold standards. It was more a hope than a certainty.”

Hearings on Implementation of Transportation Controls before the

Subcommittee on Air and Water Pollution of the Senate Committee

on Public Works, 93d Cong., Ist Sess. 225 (1973).

This concern with protecting public health from presently un-

quantified adverse effects is expressed again in H. Rep. No. 1175,

94th Cong., 2d Sess. 85 (1976), which states that

the need to prevent significant deterioration in so-called ‘clean

air areas” arises in substantial part from the need to protect

the public’s health. * * * [I]t is * * * clear that a combination

of ambient standards with a policy for prevention of significant

deterioration of air quality is necessary to provide for maxi-

mum feasible protection of the public health. * * * The margins

of safety, purportedly ensured by the standards, seem to have

vanished in the face of new data.

18

and classification system as an appropriate method for

carrying out the protection of clean air.

6. The industry petitioners also challenge the power

granted by the regulations to federal land managers *’

and Indian tribes to adopt a stricter air quality classifi-

cation as to lands over which they exercise jurisdiction.”

We submit that the ability of federal land managers and

Indian tribes to control air quality in such lands as

national parks and forests and Indian reservations is an

appropriate, even necessary, adjunct of their general au-

thority to preserve those areas. Moreover, this redesigna-

tion power is quite limited. The regulations provide for

an elaborate, detailed process for redesignation, includ-

ing public hearing and extensive consultation with any

governmental or other groups which might be affected.

40 C.F.R. 52.21(c) (3) (iv), (v). In addition, any re-

designation must be reviewed and approved by the Ad-

ministrator of EPA, at which time protests may be

made. 40 C.F.R. 52.21(c) (vi). These procedures en-

sure that redesignations will not take place arbitrarily or

without careful consideration of the potential effects.

7. Finally, some of the industry petitioners urge that

this Court should review the decision below on the ground

that new hearings were not held in every State prior

to the promulgation of the regulations. As the court of

appeals pointed out, every State held hearings prior to

adoption of their implementation plans. Petition No.

76-529, p. 43a. Many, if not most, of these hearings

included discussion of a need to prevent significant de-

terioration of existing clean air. When, however, the

#2 The federal land manager is defined as “the head, or his desig-

nated representative, of any Department or Agency of the Federal

Government which administers federally-owned land, including pub-

lic domain lands.” 40 C.F.R. 52.21(b) (3).

** Indian tribes are also given the authority to designate a less

strict classification. 40 C.F.R. 52.21(c)(3)(v).

Ee ee

19

individual state plans adopted pursuant to these hear-

ings failed to implement that purpose effectively, they

were disapproved by the Administrator in accordance

with the order of the district court in Sierra Club

v. Ruckelshaus, supra. 37 Fed. Reg. 23836. Since Sec-

tion 110 of the Act only requires hearings prior to sub-

mission of the implementation plan, the court below

correctly concluded that there was no requirement to

hold a new set of hearings in each State. Petition, No.

76-529, p. 43a.

In the course of developing regulations which would

carry out this purpose, EPA held five regional hearings

and received numerous written comments. 39 Fed. Reg.

31000. Further written comments were received and

considered after the draft regulations were issued in

August 1974. See 39 Fed. Reg. 42510. All interested

persons had full and repeated opportunity at all stages

of the adoption of the implementation plans to present

their views. None of the petitioners made any objection

to EPA that it should be holding hearings in every State.

It is clear, as the court below pointed out, that there

is no claim of harm to any party by this procedure,

(Petition, No. 76-529, p. 44a), nor was any objection

to it raised. There is therefore no ground for invalidat-

ing these regulations. Consequently, even if petitioners

were correct that a second set of hearings was required

in every state, they are not entitled to use this issue

where they failed to complain to the Administrator at a

time when a deficiency could have been corrected. United

States v. L. A. Tucker Truck Lines, 344 U.S. 33, 36-37

(1951).

20

CONCLUSION

In short, the decision below is not in conflict with de-

cisions of this Court or any court of appeals. The issues

raised by the industry petitioners are not substantial and

do not warrant review by this Court. For the foregoing

reasons, intervenor respondents submit that the petitions

for writs of certiorari filed by the industry petitioners

should be denied.**

Respectfully submitted,

Bruce J. TERRIS

NATHALIE V. BLACK

1908 Sunderland Place, N.W.

Washington, D.C. 20036

(202) 785-1992

Attorneys for Intervenor Respondents

2#On the other hand, the petition filed by the Sierra Club No.

76-617, raised an importar* question of federal law which has not

been decided by this Court—-whether the Environmental! Protection

Agency has properly complied with its statutory obligation under

aoe Clean Air Act to prevent the significant deterioration of air

quality.