Petitioners Brief — Mont. Power Co. v. U.S.E.P.A.

Supreme Court brief1977

Ask Donna

What actually matters in this document.

Text

__ eo

——

Supreme Cours, U. 8,

EIDE

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the Uulked States

OCTOBER TERM, 1976

No. 76-529

MONTANA POWER COMPANY, et al.,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

No. 76-594

INDIANA-KENTUCKY ELECTRIC CORPORATION, et al.,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

On Writs of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

BRIEF FOR PETITIONERS

{List of Attorneys on inside cover]

—— ͤ ——Cf᷑ — ͥͤ —— — —— ̃ä —— —

WILSON - EPES PRINTING Co., INC. - RE 7-GOO2 - WASHINGTON, D.C. 20001

CINCINNATI GAS & ELECTRIC

COMPANY

COLUMBUS AND SOUTHERN OHIO

ELECTRIC COMPANY

THE DAYTON POWER AND LIGHT

COMPANY

KENTUCKY POWER COMPANY

OHIO EDISON COMPANY

OHIO POWER COMPANY

WILSON W. SNYDER

FULLER, HENRY, HODGE

& SNYDER

1200 Edison Plaza

300 Madison Avenue

Toledo, Ohio 43604

Petitioners in No. 76-529

PaciFic COAL GASIFICATION

COMPANY

K. R. EDSALL

JANE C. L. GOICHMAN

720 West Eighth Street

Los Angeles,

California 90017

Petitioner in No. 76-529

MONTANA POWER COMPANY

Paci POWER AND LIGHT

COMPANY

PORTLAND GENERAL ELECTRIC

COMPANY

PuGet SOUND PowER & LIGHT

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

Petitioners in No. 76-529

TRANSWESTERN COAL GASIFICA-

TION COMPANY

JAMES W. McCARTNEY

NORMAN D. RADFORD, JR.

VINSON & ELKINS

2100 First City National

Bank Building

Houston, Texas 77002

Petitioner in No. 76-529

INDIANA-KENTUCKY ELECTRIC CORPORATION

INDIANA & MICHIGAN ELECTRIC COMPANY

INDIANA STATEWIDE RURAL ELECTRIC COOPERATIVE, INC.

INDIANAPOLIS POWER & LIGHT COMPANY

NORTHERN INDIANA PUBLIC SERVICE COMPANY

PUBLIC SERVICE COMPANY OF INDIANA, INC.

SOUTHERN INDIANA GAS AND ELECTRIC COMPANY

JERRY P. BELKNAP

JON D. NOLAND

BRYAN G. TABLER

BARNES, HICKAM, PANTZER & BoypD

1313 Merchants Bank Building

Indianapolis, Indiana 46204

Petitioners in No. 76-594

— — —üw . — ee

INDEX

Page

Opinion Below .-...................... W ERR Ee 2

r —————— 2

Statutes and Regulations Involvfeeiii 2

re...... 2

. ——ů— 3

J . 3

B. The Significant Deterioration Regulations 8

C. Tie Preecedings Below ...................................-- 14

e 16

( 24

I. The Significant Deterioration Regulations Vio-

late the Clean Air Act .2222222.0.0.0...0.22.222-eee-eneeeeee- 24

1. EPA’s disapproval of the State implementa-

tion plans and its amendment of those plans

to include the significant deterioration regu-

lations are contrary to mandatory language

, eeeeent 24

2. The decision below is contrary to decisions

of this Court construing § 110 to be manda-

tory in fact as well as in form ........................ 25

3. The decision below is contrary to EPA’s

contemporaneous interpretation of § 110. 29

4. The significant deterioration regulations also

are inconsistent with other provisions of the

—— Ä— ¼— ——— 31

5. Approval of State implementation plans

which do not prevent significant deteriora-

tion is not inconsistent with the purposes of

JE bb 33

INDEX—Continued

6. The significant deterioration regulations are

not supported by legislative history

Ty, I i eels

II. The Provisions in the Regulations for Reclassify-

ing Federal and Indian Lands Violate the Clean

pr Re

1. The reclassification provisions are in dero-

gation of the primary responsibility of each

State for assuring air Aten within its

— .

2. The reclassification provisions arbitrarily

discriminate against private and municipal

3. The provisions for reelassification of Federal

lands are inconsistent with § 118 of the Act

and are without any statutory basis

4. The provisions for reclassification of Indian

lands do not have any statutory basis

5. These issues are ripe for judicial review

CII |. . .

. . ˙ .

1 0

11 .

Page

— —e—

—

iii

CITATIONS

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136

/ ee Se aS On Oe

Antoine v. Washington, 420 U.S. 194 (19755

Buckley v. Valeo, 424 U.S. 1 (1976) 8

Bulova Watch Co. v. United States, 365 U.S. 753

, r — Er

Chisholm v. F. C. C., —— U.S. App. D.C. ——,

538 F.2d 349 (1976) 4

City of Highland Park v. Train, 519 F. 2d 681

r a cidenstacennies

Columbia System v. United States, 316 U.S. 407

e EO FER

Connecticut Co. v. Power Comm'n, 324 U.S. 515

District of Columbia v. Train, — U.S. App.

D.C. 533 F.2d 1250 (1976))))))): 2.

Euclid v. Ambler Co., 272 U.S. 365 (1926)

FAA Administrator v. Robertson, 422 U.S. 255

AI eee et ve

F. P. C. v. Tuscarora Indian Nation, 362 U.S. 99

Friends of the Earth v. Carey, — F.2d ——, 9

Frozen Food Exp. v. United States, 351 U.S. 40

EN a a

Gardner v. Toilet Goods Assn., 387 U.S. 167

Getty Oil Company (Eastern Operations) v.

Ruckelshaus, 467 F.2d 349 (3d Cir., 1972) ........

Page

22, 70

Hancock v. Train, 426 U.S. 167 (1976) ....16, 27, 28, 61, 67

McClanahan v. Arizona State Tax Comm’n, 411

r a 8

McLaren v. Fleischer, 256 U.S. 477 (19217

Montana Power Co., et al. v. Environmental Pro-

tection Agency, et al., 9 ERC 2096 (D. Mont.,

January 27, 1977) mm

Morton v. Mancari, 417 US. 535 (1974) 1

CITATIONS—Continued

Page

Natural Asphalt Pavement Ass’n v. Train, ——

U.S. App. D.C. ——, 539 F.2d 775 (1976) 38, 54

Natural Resources Defense Council, Inc. v. Envir-

onmental Pro. Ag., 489 F.2d 390 (5th Cir.,

1972), rev'd, 421 U.S. 60 (1975 29, 56

Natural Resources Def. Coun., Inc. v. U. S. En-

vironmental Pro. Agcy., 507 F.2d 905 (9th Cir.,

09 ̃ ̃ ͤͤT—„—-— 56

Natural Resources Defense Council, Inc. v. Train,

545 F.2d 320 (2d Cir., 1976))))) : 27

Neil v. Biggers, 409 U.S. 188 (1977 25

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) 47

Plan for Arcadia, Inc. v. Anita Associates, 501

ee 8 Be SS EEE 75

Radzanower v. Touche Ross & Co., 426 U.S. 148

9 om nem NE EE 34

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

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

412 U.S. 541 (1973) 8 _ passim.

Squire v. Capoeman, 351 US. 1 (1956) . 70

Toilet Goods Assn. v. Gardner, 387 U.S. 158

(1967) 73, 75

Train v. City of New York, 420 U. 8. 35 (1975) 33

Train v. Natural Resourees Def. Council, 421 U. 8.

1. ?äͤK— Ee 16, 17, 25-31, 36, 37

59, 61, 74

Udall v. Tallman, 380 U.S. 1 (1965) 30

Union Electric Co. v. Environmental Pro. Agew.,

515 F.2d 206 (8th Cir., 1975), aff'd, 427 U.S.

00. ̃ —— m' 29

Union Electric Co. v. EPA, 427 U.S. 246 (1976) 16, 17,

27, 28, 75

United States v. Borden Co., 308 U.S. 188 (1939) 34

United States v. Price, 361 U.S. 304 (1960) Sie 39

United States v. Storer — Co., 351 U.S.

192 (1956) 1 71. 72

— —

Statutes:

CITATIONS—Continued

Page

Washington v. General Motors Corp., 406 U.S. 109

1 61

Weinberger v. — “Westcott € — 412

U.S. 609 (1973) . 37

Air Quality Act of 1967, 81 Stat. 485 4, 8, 19, 34, 36,

42, 44, 45

Clean Air Act of 1963, 77 Stat. 3922 8, 19, 34, 35,

36, 40, 41

Clean Air Act Amendments of 1970, 84 Stat. 1676 3, 4-8,

34, 37, 47, 48, 59, 60

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

et seq.:

Section 101 (a) = i i

Section 101(b) a 8 ih passim.

Section 107 = - 21, 22, 59, 62, 68

ä — 4

. 0

.xjx| T_T TT i eee

ä — bassim.

1 7, 17, 32, 33

Section 114 m

Section 116 8, 20, 36, 38, 48, 57, 60

Z 8, 21, 66, 67, 69

Section 201 et seq. . ce ciiiilinain x

Ta ee 4

Section 807 14, 22, 78, 74, 75

Federal Election Campaign Act of 19711 75

69 Stat. 322 1 35

79 Stat. 922 1 ů—ðͥ 1 40

28 U.S.C. § 1254(1) 1 r 2

28 U.S.C. § 1331 — 1 75

CITATIONS—Continued

Regulations: Page

A — EE 2

40 C. F. a. $62.21 ~~... — 2

c 72

. 11

. 12

. — 7 62

900 — 13

„„ 11

1 — — 63

—A cisieiciininiulaiibiatdiapeieapaipatemiaanaiiaaay alia 13

Miscellaneous:

Ee OF . 44

116 Cong. Rec. 32918 (197o⸗0 3 60

116 Cong. Rec. 33114 (1970 8 60

116 Cong. Rec. 33117 (19700) — Tania 74

116 Cong. Rec. 42520 (1970: 60

Environmental Protection Agency Guidance Mem-

orandum on Significant Deterioration Regula-

tions (September 28, 1976) 13

37 F.R. 23886 TARE HARA 9

8 eee ee 9

lll ̃ ̃ A ST EM eS ES 10, 55

r e 10

— 8 SRSA a 10

1K?) ö:ĩ8 ww 2 3 9

r RRS ees 10, 61, 62

39 F. R. 42509 9

39 F.R. 42510 757 TI AIADOS © 11

39 F.R. 42512 — ere 11, 63

$9 F. R. 42818 63, 66, 60

42 F. R. 21819 * r

Guidelines for the Development of Air Quality

Standards and Implementation Plans (1969) 45

— —

vii

CITATIONS—Continued

Page

Air Pollution—1970, Hearings before the Subcom-

mittee on Air and Water Pollution of the Senate

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

(1970) 1 46, 47

Hearings on n Implementation of the Clean Air Act

Amendments of 1970 before the Subcommittee

on Air and Water Pollution of the Senate Pub-

lic Works Committee, 92d Cong., 2d Sess., ser.

r — .. 9

Hearings on Clean Air Act Oversight before the

Subcommittee on Public Health and Environ-

ment of the House Committee on Interstate and

Foreign Commerce, 92d . 2d Sess., ser.

92-105 (1972) 8 9

H. Rept. No. 508, 88th Cong. ‘Ist Sess. (1963) we 42

H. Rept. No. 728, 90th Cong., Ist Sess. (1967) _ 48, 44

H. Rept. No. 91-1146, 91st Cong., 2d Sess. (1970). 20, 52,

H. Rept. No. 91-1783, 91st Cong., 2d Sess. (1970) 20, 53

S. Rept. No, 638, 88th Cong., Ist Sess. (1963)... 40, 41

S. Rept. No. 403, 90th Cong., Ist Sess. (1967) 42, 43, 44

S. Rept. No. 91-1196, 91st Cong., 2d Sess. (1970) 19, 20,

48-5°, 54, 60, 67, 74

Supreme Court Rule 23-1 0c) i 1 71

Supreme Court Rule 40-1 (d) (1) and (2) 71

IN THE

Supreme Court of the United States

OCTOBER TERM, 197€

No. 76-529

MONTANA POWER COMPANY, et al.,

2 Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

No. 76-594

INDIANA-KENTUCKY ELECTRIC CORPORATION, et al.,

7 Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

On Writs of Certiorari to the United States Court of

Appeals for the District of Columbia Circuit

BRIEF FOR PETITIONERS

This Court granted the petitions for writ of certiorari

in these cases and in Nos. 76-585, 76-603, 76-619, and

76-620, and consolidated the cases in an order entered

on April 4, 1977 (A. 292a).

OPINION BELOW

The opinion of the Court of Appeals (A. 39a-90a) is

reported at 540 F.2d 1114.

JURISDICTION

The judgment of the Court of Appeals (Pet. No. 76-

529, at 9la-94a) was entered on August 2, 1976. The

petitions for writ of certiorari were filed on October 15,

1976 (No. 76-529), October 27, 1976 (No. 76-585), Octo-

ber 29, 1976 (No. 76-594 and No. 76-603), and Novem-

ber 1, 1976 (No. 76-619 and No. 76-620). The jurisdic-

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

STATUTES AND REGULATIONS INVOLVED

The pertinent provisions of the Clean Air Act are set

forth in Appendix A to this brief. The regulations being

reviewed are set forth at A. 226a-242a, 252a-280a, 287a,

and are published as 40 C.F.R. §§ 52.01(d) and (f), and

52.21.

QUESTIONS PRESENTED

As limited by and stated in this Court’s order granting

the petitions for writ of certiorari, the questions pre-

sented are:

1. Whether regulations promulgated by the Environ-

mental Protection Agency to prevent the significant de-

terioration of air quality are authorized by the Clean

Air Act?

2. Whether the Clean Air Act permits the Environ-

mental Protection Agency tc adopt regulations which

grant to Federal land managers and Indian governing

bodies power to reclassify Federal and Indian lands

within their jt *.sdiction?

STATEMENT OF THE CASE

This case involves the interpretation and application

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

et seg. In compliance with a court order in earlier liti-

gation interpreting that Act over his opposition to so

require, the Administrator of the Environmental Protec-

tion Agency (hereinafter “EPA’’) has disapproved plans

adopted by every State for the implementation of national

primary and secondary ambient air quality standards;

and EPA has amended or revised those plans by promul-

gating regulations which include therein provisions pre-

venting “significant deterioration” of air which is cleaner

than is required by the national primary and secondary

standards. That interpretation of the Act and those ac-

tions by EPA were upheld by the court below. Among

other things, those regulations confer upon Federal land

managers and the governing bodies of Indian tribes au-

thority, independent of State control and subject only

to review by EPA, to reclassify Federal and Indian lands

under their respective jurisdictions; and thus not only

to restrict the construction of electric generating plants

and other new sources of certain air pollutants upon

those lands, but also upon lands owned by others up to 60

or more miles distant.

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” section of the Act was first

enacted in substantially its present form by the Clean

Air Act of 1963 (77 Stat. 392). This includes the find-

ing 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 purpose “to protect the Nation’s air re-

sources so as to promote the pub e health and welfare

and the productive capacity of its population” which, 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 5 101 (b) (1), 42 U.S.C. § 1857 (b)

(1). That statement of purpose is the only purported

statutory basis for the significant deterioration regula-

tions.

Under the 1970 Amendments, EPA designates each

air pollutant which in its “judgment has an adverse

effect on public health or welfare“ (§ 108 (a) (1), 42

U.S.C. § 1857e-3 (a) (1)), and establishes national pri-

mary and secondary ambient air quality standards for

each such air pollutant ( 109 (a), 42 U.S.C. § 1857c-

4(a)). A primary standard is set at the level which

EPA deems “requisite to protect the public health“

after “allowing an adequate margin of safety“ —and a

secondary standard is set at the level which EPA deems

“requisite to protect the public welfare from any known

or anticipated adverse affects associated with the pres-

ence of such air pollutant in the ambient air.” § 109(b),

42 U.S.C. § 1857c-4(b).* Those standards “may be re-

vised in the same manner as promulgated” (ibid.).

Each State has “the primary responsibility for assur-

ing air quality within the entire geographic area com-

All language referring to effects on welfare includes, but is not

limited to, effects on soils, water, crops, vegetation, manmade ma-

terials, 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.” § 30 h), 42 U.S.C. § 1857h(h).

prising 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 . . . in such

State.“ 5 107 (a), 42 U.S.C. § 1857c-2(a). Thus, “after

reasonable notice and public hearings,” each State adopts

plans for “implementation, maintenance, and enforce-

ment” of the primary and secondary standards and sub-

mits 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 require-

ments specified in § 110 (a) (2) of the Act (42 U.S.C.

§ 1857c-5(a) (2)), and also “shall approve” any revision

by a State thereof if such revision meets those specified

“requirements” (§ 110(a) (3) (A), 42 U.S.C. § 1857c-5

(a) (3) (A). EPA is authorized by § 119(c) (1) to pro-

pose “regulations setting forth an impiementation plan,

or portion thereof, for a State” only if the plan (or por-

tion thereof) submitted by the State is determined by“

EPA “not to be in accordance with” those eight “require-

ments” or criteria, and EPA can promulgate such regu-

lations and thus make them a part of the State imple-

mentation plan only if the State in the meantime has not

voluntarily adopted and submitted a “plan (or revision)

which” EPA “determines to be in accordance with” those

“requirements.” 42 U.S.C. § 1857e-5 (e) (1).*

It has neither been contended nor held in this litiga-

tion, or in the preceding litigation, that any of the eight

requirements in 110 (a) (2) consists of or includes the

prevention of significant deterioration of air which would

continue to comply with the national primary and sec-

ondary standards. Rather, those requirements are di-

rected toward compliance with the national standards,

2 Those statutory provisions also authorize EPA to propose and

promulgate a State implementation plan if the State fails to do so

within the time allowed—a situation which is not involved here.

including (A) “attainment of such primary standard as

expeditiously as practicable” and of “such secondary

standard” within “a reasonable time; (B) “emission

limitations... and such other measures as may be neces-

sary to insure attainment and maintenance of such pri-

mary or secondary standard;“ (E) “adequate provisions

for intergovernmental cooperation . . . to insure that

emissions of air pollutants . . . will not interfere with

the attainment or mainteuance of such primary or sec-

ondary standard . . . outside of such State or . other

air quality control region;” and (H) “revision . . . of

such plan . . . to take account of revisions of such na-

tional primary or secondary ambient air quality stand-

ard or the availability of improved or more expeditious

methods of achieving such primary or secondary stand-

ard” or “whenever” EPA “finds . . . that the plan is sub-

stantially inadequate to achieve the national ambient air

quality primary or secondary standard which it imple-

ments.” 42 U.S.C. § 1857¢-5(a) (2).*

In short, under the express terms of the 1970 Amend-

ments, for “purposes of this Act, an applicable imple-

mentation plan is the implementation plan, or most re-

cent revision thereof, which has been approved under

subsection [110](a) or promulgated under subsection

110 (e) and which implements a national primary or

secondary ambient air quality standard in a State.”

110 (d), 42 U.S.C. § 1857e-5 (d). And, only an “appli-

* Requirement (C) relates to devices, methods, systems and pro-

cedures for monitoring, compiling and analyzing “data on ambient

air quality ;” requirement (D) relates to “a procedure” for precon-

struction “review. . . of the location of new sources to which a

standard of performance will apply“ (see pp. 7-8, infra); require-

ment (F) relates to State personnel, funding and authority to carry

out its implementation plan, monitoring requirements, reports, pro-

cedures for correlating reports with emission limitations or stand-

ards, and contingency plans; and requirement (G) relates to the

enforcement of motor vehicle emission standards.

cable implementation plan” as thus defined is enforce-

able under § 113 of the Act. 42 U.S.C. § 1857c-8.*

The 1970 Amendments also added the provisions in

§ 111, including a requirement that EPA establish a “list

of categories of stationary sources” which “may contribute

significantly to air pollutiou which causes or contributes

to the endangerment of public health or welfare,” and

“Federal standards of performance for new sources with-

in ſeach] such category.” 42 U.S.C. § 1857c-6(b) (1). A

“standard of performance” is defined to mean “a stand-

ard for emissions of air pollutants which reflects the

degree of emission limitation achievable through the ap-

plication of the best system of emission reduction which

(taking into account the cost of achieving such reduction)

the Administrator determines has been adequately demon-

strated.” 42 U.S.C. § 1857¢-6(a) (1).

Only the operation of a new source “in violation of any

standard of performance applicable to such source” is

made “unlawful” by §111(e).° 42 U.S.C. S 1857c-6(e).

There is nothing in §111 authorizing EPA to prevent

construction or operation of a new source because it would

cause deterioration of air quality which, nonetheless,

would meet the national primary and secondary stand-

ards. Rather, one of the eight criteria for approval of an

implementation plan under § 110 (a) is that “it includes

a procedure, meeting the requirements of paragraph (4),

for review (prior to construction or modification) of the

location of new sources to which a standard of perform-

*Section 113 also provides for enforcement of new source per-

formance standards issued under §111 of the Act, of emission

limitations for hazardous pollutants established under § 112, and of

inspection and monitoring requirements under § 114.

Thus, EPA may issue a compliance order or bring a civil action

against “any person .. in violation of section 111(e) (relating

to new source performance standards), and any “person who know-

ingly . . . violates section 111(e)” is subject to criminal penalties.

§ 113, 42 U.S.C. § 1857-8.

ance will apply.” 42 U.S.C. § 1857

paragraph (4)” referred to a ag — — i

pre-construction review of new sources to “provide —

adequate authority to prevent the construetion or modi-

fication of any new source to which a standard of per-

formance under section 111 will apply at any 3

which the State determines will prevent the attainment

or maintenance . . of a national ambient air quality

primary or secondary standard... .”

USC. f 1887 S( ap (h. 110% %, 4

Finally, 8 116 of the Act, 42 U.S. C. $1

pressly preserves the right of the States 3 ein

implementation plans more “stringent” limitations u

air pollution than are required by the Act. And $118,

42 U.S. C. § 1857f, requires Federal departments, agencies

and instrumentalities to “comply with Federal, State

interstate and local requirements respecting control and

abatement of air pollution to the same extent that an

person is subject to such requirements,” except td

exempted therefrom by the President in certain limited

circumstances in which such ion i ;

bey Ghat entien? an exemption is authorized

B. The Significant Deterioration Regulations.

Shortly after enactment of the 1970 Am

endments, EP

* the Act to require approval of State oe Soa

ion plans which complied with the eight requirements

specified in §110(a) (2), so that EPA in its own view

did not have authority under the Act to disapprove such

*The 1970 Amendments redesi

gnated and substanti i

+ — = oa e 3 — which — te ——

§ ‘ hile n nvolved here, the 197

— — the provisions relating to national A daikon

poh ous: pollutants 8 112, 42 U.S.C. § 1887-7), as well

ing various provisions in Title II of the Act relating 7

emission standards f. i

§§ 1857f-1 et acg%%. (201 ef 660. 42 U.S.C.

— .

——— — —

— — — 2 —-—-—

plans for failure to include a significant deterioration

provision or to promulgate regulations amending the

plans to inelude such a provision. When the Administra-

tor described this interpretation before Congressional

committees,’ the Sierra Club and other groups filed a suit

in the United States District Court for the District of

Columbia contesting that interpretation. That court re-

jected EPA’s interpretation of the Act, ordered EPA to

disapprove plans insofar as they did not “effectively pre-

vent significant deterioration of existing air quality,”

and directed EPA to propose remedial regulations amend-

ing the State plans. Sierra Club v. Ruckelshaus, 344 F.

Supp. 253 (D. D.C., 1972). The District of Columbia

Circuit affirmed per curiam on the basis of the opinion

below, 4 ERC 1815 (1972), and this Court affirmed with-

out 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 im-

plementation plans of every State insofar as they failed

to provide for the prevention of significant deterioration

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

rulemaking (38 F.R. 18985; A. 91a-159 a); issued re-

vised proposed regulations (39 F.R. 30999; A. 160a-

205a) ; and, on December 5, 1974, published final signifi-

t Hearings on Clean Air Act Oversight before the Subcommittee

on Public Health and Environment of the House Committee on

Interstate and Foreign Commerce, 92d Cong., 2d Sess., ser. 92-105

(1972), at 530-531; Hearings on Implementation of the Clean Air

Act Amendments of 1970 before the Subcommittee on Air and

Water Pollution of the Senate Public Works Committee, 92d Cong.

2d Sess., ser. 92-H31 (1972), Pt. 1, at 246-249, 271-276.

® 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 in §101(b)(1) 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.

cant deterioration regulations (39 F.R. 42509; A. 206a-

241a). In proposing 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 de-

terioration of air quality,” and was acting only because

of “the preliminary injunction issued by the District

Court” (38 F. R., at 18986; A. 98a).

In proposing and promulgating these regulations, EPA

was faced with the problem that the Act does not men-

tion “significant deterioration” and the courts in the

Ruckelshaus case had not determined “what constitutes

significant deterioration and exactly how it will be pre-

vented” (38 F.R., at 18986; A. 94a). So, too, the “pro-

tect and enhance” statutory language and the legislative

history relied upon similarly provided no guidance, except

insofar as they might imply that all degradation of air

(and thus all economic growth) should be prevented—

which no one contended to have been contemplated by the

Congress (38 F.R., at 18987; A. 98a-99a). Furthermore

since the national ambient air standards are intended to

prevent all “demonstrable or predictable adverse effects

which can be quantitatively related to pollutant concen-

trations in the ambient air,” EPA concluded that “signi-

ficant deterioration must necessarily be defined without a

direct quantitative relationship to specific adverse effects

on public health and welfare” (38 F.R., at 18987: A.

97a-98a). Hence, any judgment of what deterioration

would be significant “must be essentially subjective” (38

F. R., at 18988; A. 100 a), based upon “consideration of

varying social, economic, and environmental factors” (29

F. R., at 31001; A. 166a), and “[ajny policy to prevent

significant deterioration involves difficult questions regard-

ing how the land in any area is to be used”

at 31001; A. 167a). *

The regulations apply the significant deterioration pro-

visions to two pollutants: particulate matter and sulfur

dioxide. In view of the considerations outlined above

(see 39 F.R., at 42510; A. 207a), EPA established a sys-

tem for classifying the lands within each State. In Class

areas, “practically any” increase in the levels of those

pollutants would be prohibited (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 na-

tional standards) so that in EPA’s judgment “moderate

well-controlled growth” would be permissible; and in

Class III areas, the level of those pollutants (amd thus

economic growth) could be increased up to the level al.

lowed by the national standards (39 F.R., at 42510; A.

208a). However, since the regulations prohibit the con-

struction of a new source which “would violate an air

quality increment either in the area where the source is

to be located or in any neighboring area in the State,”

a power plant located in a Class II area might violate

Class I restrictions in areas as much as “60 or more

miles away” so that the effect of a more restrictive clas-

sification “extends well beyond” its “boundaries into the

adjacent areas” (39 F.R., at 42512; A. 219a).

The restrictions upon increments of the two pollutants

are implemented by preconstruction review of construc-

tion of new or modified facilities which would constitute

a “new source” of air pollution. Such construction would

be prohibited if an applicable incremental limit would be

violated, even if the best available technology would be

used in compliance with §111 of the Act. 40 C. F. R.

§ §2.21(d); A. 234a-237a, 255a, 287a.

The regulations initially place all areas in Class II.

40 C.F.R. § 52.21 (e) (3) (i); A. 230a. Redesignation“

or reclassification of an area may be proposed by the

respective States, Federal Land Managers, or Indian

Governing Bodies,” pursuant to procedures and considera-

tions specified in the regulations, and are “subject to ap-

proval by” EPA. Ibid. A private landowner or manager,

on the other hand, does not have a right under the regula-

tions to propose a reclassification of his (or any other)

land and, indeed, is not given a right to request his State

to propose such a reclassification or to review by EPA

(or anyone else) if the State refuses to do so.

The procedures and considerations applicable to pro-

posed reclassifications are set forth in & 52.21(c) (3) (ii)-

(v) of the regulations. A. 230a-232a, 253a-254a. Whether

proposed by a State, Federal land manager or Indian

governing body, a public hearing must be held and the

proposed reclassification must be based on the record in

that hearing and “must reflect . . . consideration of (1)

growth anticipated in the area, (2) the social, environ-

mental, and economic effects of such redesignation upon

the area being proposed for redesignation and upon other

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

redesignation upon regional or national interest.” A

State must consult with the leaders of local governments

in the area covered and, if Federal lands are involved,

with the Federal land manager (it cannot propose re-

designation of an Indian Reservation over which it has

not asserted jurisdiction under other laws). A Federal

land manager can only propose “a more restrictive desig-

nation,” and must consult with the State in which the

Federal land is located (or on which it borders). An

Indian governing body may propose reclassification of

an Indian Reservation over which the State has not as-

sumed jurisdiction under other laws, but must consult

with the State in which the Reservation is located (or

on which it borders) and, if held in trust, must obtain

approval of the Department of the Interior.

In general, EPA “shall approve” a proposed reclassi-

fication within 90 days, unless it finds that the pro-

—ů 2

cedural requirements of the regulations have not been

complied with or that the State, Federal land manager

or Indian governing body “has arbitrarily and capri-

ciously disregarded relevant considerations” specified by

the regulations as quoted above. 40 C.F.R. § 52.21(c)

(3) (vi); A. 232a-233a, 254a. But a proposal by a State

cannot be approved unless the State also has requested

and has been delegated by EPA the responsibility for

carrying out preconstruction review of new sources (i. e.,

of administering both the new source performance stand-

ards and the incremental limits upon significant de-

terioration). Jbid. If a proposed reclassification (by

whomever made) is protested by a State or Indian gov-

erning body, it can be approved only if EPA itself de-

termines in its “judgment” that the reclassification “ap-

propriately balances” the “considerations” specified in the

regulations as quoted above. Ibid. Protests by others,

such as private landowners who would be adversely af-

fected by a proposed reclassification, do not give rise to

such an independent “judgment” by EPA.

If a State, Federal land manager or Indian governing

body proposes a reclassification. or even announces that

it is considering doing so, pending applications for per-

mission to construct new or modified facilities within the

area cannot be approved until EPA has acted upon the

proposed reclassification, thus subjecting such prior (as

well as future) applications to the incremental limits

applicable to the revised classification (if approved).

40 C. F. R. § 52.21 (d) (5); A. 287a. EPA has construed

this provision to apply also to applications relating to

construction of facilities located outside the area proposed

to be redesignated, if it could affect air quality within

that area. See the September 28, 1976 Guidance Memo-

randum set forth as App. D to the Petition in No. 76-

620.

C. The Proceedings Below.

Within 30 days after promulgation of the significant

deterioration regulations, these and other petitioners filed

petitions for review pursuant to § 307(b) (1) of the Act,

42 U.S.C. § 1857h-5 (b) (1). A. 1la-38a. All those not

filed in the District of Columbia Circuit were transferred

to that Court and the cases were consolidated for briefing

and argument. The Court of Appeals upheld the regula-

tions. Its August 2, 1976 opinion was written by Judge

Wright, who was joined by Judge Robinson. Judge

Wilkey “concur[red] in the result only“ without writing

a separate opinion (A. 90a).

The Court of Appeals generally applied the “arbitrary

and capricious” standard of the Administrative Proce-

dure Act, which it deemed to require “that agency action

be affirmed if a rational basis exists therefor” (A. 53a).

But in regard to the “question whether the Clean Air

Act. should be interpreted to prohibit significant deteriora-

tion 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” (A. 54a,

55a). After reconsidering the Ruckelshaus decision un-

der that standard of review, the Court of Appeals found

“no substantial reason to question” its “continuing va-

lidity” (A. 67a; generally, at 54a-67a).

As noted above, the only statutory basis asserted for

the holding that the Clean Air Act requires prevention

of significant deterioration was the “protect and e..hance”

language in § 101(b) (1), setting forth one of the pur-

poses of the Act (A. 55a-56a). The primary reliance of

the court below, however, was placed upon certain legisla-

tive history of the 1970 Amendments (A. 56a-61a), which

was thought to afford “every indication that Congress

—— — — .

intended in 1970 to continue a policy of prevention of

significant deterioration of air quality” (A. 60a-61la).

The Court of Appeals also thought that its interpreta-

tion was bolstered by “recent congressional statements”

upon pending legislation (A. 6la-62a), and by the accept-

ance of the Ruckelshaus decision “in a number of other

circuits” (A. 62a). It rejected contentions that the “shall

approve” language in § 110 (a) (2) of the Act, as inter-

preted and applied by decisions of this Court subsequent

to Ruckelshaus, necessitated a contrary holding (A. 62a-

66a).

In addition, the Court of Appeals rejected a number

of contentions to the effect that the significant deteriora-

tions are arbitrary and capricious or otherwise invalid,

even assuming that the Clean Air Act requires prevention

of significant deterioration (A. 67a-87a).° But the Court

of Appeals did not reach the merits of the only such con-

tention before this Court for review under the limited

grant of certiorari (i. e., the second question presented).

Rather, with respect to the arguments as to the validity

of the provisions authorizing Federal land managers and

the governing bodies of Indian tribes to reclassify Federal

and Indian lands, the court below held that “the issue

is not yet ripe for review” (A. 86a). That holding

was based upon the fact that “[nJo federal or Indian

land has yet been redesignated,” the possibility that EPA

might “approve, as replacements for these regulations,

individual state plans which did not include the powers

granted to federal land managers and Indian governing

bodies,” and the conclusion “that reservation of power

to federal land managers and Indian governing bodies

should have no effect on present conduct,” so that the

court below did “not foresee any irreparable injury which

»The Court of Appeals also rejected contentions that the Act,

if interpreted to authorize the regulations, would be unconstitutional

(A. 87a-89a).

may arise from deferral of this question until it arises

in a more concrete context” (A. 86a-87a).

SUMMARY OF ARGUMENT

I. In compliance with an order entered over its op-

position in the Ruckelshaus case, EPA has disapproved

the implementation plans of every State and promulgated

regulations amending those plans to prevent significant

de‘erioration of air that nonetheless would satisfy the

national primary and secondary ambient air quality

standards established pursuant to the Clean Air Act.

Those actions by EPA are contrary to the express re-

quirement in §$110(a)(2) of the Act that EPA “shall

approve” State implementation plans that meet eight spec-

ified criteria, and to the express limitation in § 110(c)

upon EPA's authority to promulgate regulations amend-

ing such plans to circumstances in which an implementa-

tion plan “is not in accordance” with those criteria. The

eight criteria are directed to the attainment and main-

tenance of the national primary and secondary standards,

and no one has contended that any of them includes the

prevention of significant deterioration of air where those

standards will continue to be maintained.

Since its affirmance of the Ruckelshaus case by an

evenly divided Court, this Court concluded in Train v.

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

that the “shall approve” language in §110(a) (2), as

incorporated by §110(a)(3) to apply to approval by

EPA of proposed revisions by a State of its implementa-

tion plan, is mandatory in fact as well as in form; and

the Court held that EPA therefore must approve pro-

posed variances from such plans if the criteria set forth

in S 110 (a) (2) would continue to be satisfied, including

variances that would permit cleaner air to deteriorate to

the level of the national standards. Subsequently, in

Hancock v. Train, 426 U.S. 167 (1976), and in Union

Electric Co. v. EPA, 427 U.S. 246 (1976), this Court

reiterated its understanding that §110 mandates ap-

proval by EPA of State implementation plans (or re-

visions thereof) that comply with the specified criteria,

and applied that interpretation to other circumstances

in the Union Electric case. Those decisions have resolved

any doubts that may have existed at the time of the even

division in the Ruckelshaus case, and should be sufficient

in themselves to establish that the significant deteriora-

tion regulations are invalid.

This interpretation of §110 also is supported by the

contemporaneous interpretation of EPA, which initially

concluded that the statute did not authorize it to dis-

approve State implementation plans, and to promul-

gate reguiations amending those plans, for failure to

prevent significant deterioration. It is that initial in-

terpretation by EPA, rather than its subsequent actions

compelled by the order in the Ruckelshau case, that is

entitled to weight in the courts. Train v. National Re-

sources Def. Council, supra at 75, 87. In addition, the

significant deterioration regulations are inconsistent with

other provisions of the Act. Thus, only an “applicable

implementation plan“ is enforceable under § 113 of the

Act, and an “applicable implementation plan” is defined

in 110 (d) as one “which implements a national pri-

mary or secondary ambient air quality standard in a

State.” So, too, §111(e) makes “unlawful” only the

operation of a new source of pollution “in violation of

any standard of performance applicable to such source“

which has been established pursuant to § 111, while the

regulations would prohibit construction or operation of a

new source which would violate either such a new source

performance standard or the incremental limits which

EPA has established for purposes of defining what con-

stitutes significant deterioration. See, also, §§ 110(a) (2)

(D) and (a) (4) of the Act.

The only purported statutory basis for the regulations

is the statement in § 101(b) (1) that one of the purposes

of the Act is “to protect and enhance the quality of the

Nation’s air resources so 2s to promote the public health

and welfare and the productive capacity of its popula-

tion.” Such a general statement of purpose does not

afford a basis for disregarding express requirements in

the substantive provisions of the statute. That is par-

ticularly true in regard to a provision, such as § 110,

which is both more specific and later enacted. Moreover,

the statement in § 101(b) (1) does not include a purpose

to prevent significant deterioration either in terms or by

necessary implication.

But even if § 101(b) (1) had stated such a purpose, it

would be compatible with our view that the “shall ap-

prove“ language in §110(a)(2) is actually as well as

literal'y mandatory. Both that assumed purpose and the

mandatory provisions of §110 can and should be ef-

fectuated by recognizing that the prevention of significant

deterioration has been left to the individual States pur-

suant to their authority under § 116 to establish more

“stringent” standards than are required by the Act, and

in accordance with the long-standing policy now expressed

in 8 101 (a) (3) that “the prevention and control of air

pollution at its source is the primary responsibility of the

States and local governments;” and to the new source

performance standards established pursuant to §111

which require new or modified facilities to achieve “the

degree of emission limitation achievable through the ap-

plication of the best system of emission reduction which

(taking into account the cost of achieving such reduc-

tion)” EPA “determines has been adequately demon-

strated.”

The Court of Appeals primarily relied upon a passage

in the Senate Report on the 1970 Amendments to the

Clean Alx Act, which purportedly demonstrates acquies-

cence at that time by the Congress in an administrative

interpretation of §101(b) (1), as contained in a 1967

version of the Act, to include a policy of preventing

significant deterioration. But there is no sound basis

either for the purported administrative interpretation or

the purported Congressional acquiescence, and the legisla-

tive history supports our interpretation of the Act.

The purpose clause in § 101(b) (1) was enacted by the

Clean Air Act of 1963, except for the words “and en-

hance the quality of“ which wee added by the Air

Quality Act of 1967. No litigant has claimed that there

is legislative history of either the 1963 Act or the 1967

Act demonstrating that that clause was intended to in-

clude a policy of significant deterioration; rather, the

legislative history of the 1963 Act shows that the Con-

gress intended to protect air quality through the means

provided in the substantive provisions of the Act, and the

legislative history of the 1967 Act similarly shows that

the Congress intended to enhance air quality in like

manner. The purported administrative interpretation of

the 1967 Act related to the standards to be established

for air quality control regions under that Act, rather

than to the deterioration of air that would continue to

maintain or exceed those standards, and such control

regions were established only in areas where the air

already was so polluted as to endanger the public health

or welfare.

The single passage in the Senate Report on the 1970

Amendments, upon which the court below so heavily re-

lied, is the only bit of legislative history through the en-

actment of those Amendments which anyone has con-

tended in this litigation to demonstrate a recognition by

any member of the Congress that the 8 101 (b) (1) pur-

pose clause includes a policy of preventing significant

deterioration. Yet, that passage does not refer to the

purpose clause or to the purported administrative in-

terpretation thereof and, while ambiguous, in context

appears to refer only to the maintenance of air quality

at levels which will comply with the national primary

and secondary standards. On the other hand, not only

the Senate Report but also the House and Conference

Reports on the 1970 Amendments, affirmatively demon-

strate that the Congress did in fact intend the “shall

approve” language in § 110 (a) (2) to be mandatory, and

that the imposition of any requirements more stringent

than is necessary to comply with the national primary

and secondary standards was in fact intended. to be left

to the States under § 116 and to the establishment of new

source performance standards pursuant to $111. Hence,

that single passage in the Senate Report cannot possibly

justify the significant deterioration regulations, and there

is no other basis for those regulations.

II. The significant deterioration regulations establish

a classification system under which the increments of

particulate matter and sulfur dioxide that would be al-

lowed basically are related to the degree of economic

growth or development deemed to be desirable. In gen-

eral, only the States may propose reclassification of areas

within their respective boundaries, in accordance with

considerations specified in the regulations and subject to

approval by EPA, but Federal land managers are given

authority to propose a more restrictive classification for

Federal land under their respective jurisdictions, and only

the governing body of an Indian tribe may propose re-

classification of tribal land if the State in which it is

located has not asserted jurisdiction over such land under

other laws. Such a reclassification may affect the con-

struction of new sources not only on the Federal and

Indian lands involved, but also on adjacent lands for a

distance of up to 60 to 100 miles if by reason of wind

drift they could contribute to the increment of the pollu-

tants in the air over the Federal or Indian land.

Even if the Court holds, contrary to our view, that

EPA did have authority under the Clean Air Act to

promulgate the significant deterioration regulations in

general, those provisions for reclassifying Federal and

Indian lands violate the Clean Air Act. Section 107 (a)

delegates to each State “the primary responsibility for

assuring air quality within the entire geographic area

comprising such State,” and no exception is made—either

in § 107 or elsewhere in the Act—for Federal or Indian

lands. Yet, a State cannot even propose reclassification

of Indian lands, a reclassification proposal by a Federal

land manager (if approved by EPA) overrides a pro-

posal by a State in regard to Federal land, and a more

restrictive reclassification of either Federal or Indian

land in effect determines also the permissible utilization

of adjoining State and private lands over wide areas.

The extent and distribution of Federal and Indian lands

in some western States is such that the use of most, if not

all, other lands in the State could be affected by re-

classifications of the Federal and Indian lands. Moreover,

although the regulations amend State implementation

plans and were promulgated by EPA in its role as a

surrogate for the States, they arbitrarily discriminate

against a State’s municipal and private landowners and

managers who are given no right to propose a reclassifica-

tion of their lands.

While EPA suggested in promulgating the regulations

that the reclassification authority given to Federal land

managers is “consistent” with § 118 of the Act, EPA did

not even contend that such authority is conferred by

8118 and in fact it is contrary to that statutory provi-

sion. Under § 118, Federal agencies “shall comply with

Federal, State, interstate, and local requirements respect-

ing control and abatement of air pollution to the same

extent that any person is subject to such requirements.”

(Emphasis added.) The authority given to Federal land

managers is not merely declaratory of the proprietary

right of the Federal Government to impose more restric-

tive requirements on the use of its lands, as EPA also

suggested, since reclassification also affects the use of ad-

joining State and private lands. And, that authority is

not necessary to protect air quality over national forests

and parks, despite a suggestion by EPA to the contrary,

as the primary responsibility of a State in that regard

“within the entire geographic area comprising such State”

includes national parks and forests located within the

State. Moreover, reclassifications are based upon consid-

erations unrelated to air quality and going primarily te

economie growth and development.

EPA’s explanation of the reclassification authority

given to Indian governing bodies, as being “consistent

with the independent status of Indian lands. not subject

to State laws,” shows that it has misconceived the rela-

tionship among Indian tribes, the States and the Federal

Government. State implementation plans do not consti-

tute some independent exercise of State law, but rather

are authorized and required by the Clean Air Act so as

to fulfill the State’s duty under § 107 (a) to assure air

quality within its “entire geographic area.” Such a gen-

eral Act of Congress applies to Indians and their lands,

“in the absence of a clear expression to the contrary

... F. P. C. v. Tuscarora Indian Nation, 362 U.S. 99,

120 (1960). The Clean Air Act does not contain any

“expression to the contrary,” but rather expressly pro-

vides that the authority delegated to a State thereunder

is to apply throughout the entire geographic area of the

State.

Although the Court of Appeals did not decide the mer-

its of these issues regarding the validity of the reclassifi-

cation provisions, holding that they were not ripe for

judicial review, this Court’s limited grant of certiorari

did not expressly include the ripeness issue. Thus, the

Court may have concluded already that the issues going

to the merits are ripe for review, but if not it should do

so. The mere existence of the reclassification authority

given to Federal land managers and Indian governing

bodies affects the present conduct of petitioners and

others, since they cannot base their future planning upon

the existing classification of land. A proposal or, indeed,

the mere announcement that consideration is being given

to a proposal for reclassification by a Federal land man-

ager or Indian governing body results ip the suspension

by EPA of the processing of pending applications for

permits to construct new sources on adjacent lands, and

the incremental limits under the revised classification

(if approved) will be applied to such pending permit

applications. Thus, EPA has refused to approve a permit

application by certain of these petitioners, even though

the electric generating units involved would comply with

existing Class II limits, because of a proposal by an In-

dian tribe to reclassify its adjacent lands in Class I.

Moreover, under § 307(b) (1) of the Clean Air Act, pe-

titions attacking the validity of the regulations promul-

gated by EPA must be filed within 30 days after the

promulgation, as in fact was done, if not “based solely

on grounds arising after such 30th day.’ The issues

concerning the validity of the reclassification provisions

are purely issues of law which arose when the regula-

tions were promulgated. Even if the ripeness of those

issues for judicial review otherwise was doubtful, this

special jurisdictional provision would warrant the Court

in reviewing the issues on the merits, Buckley v. Valeo,

424 US. 1, 117 (1976), particularly since those issues

could not be raised later and will be insulated from any

judicial review if not reviewed now.

ARGUMENT

I. The Significant Deterioration Regulations Violate the

Clean Air Act.

Section 110 (a) (2) of the Act expressly provides that

EPA “shall approve” State implementation plans that

satisfy eight specified requirements, none of which in-

cludes prevention of significant deterioration. In three

recent cases, this Court has construed that “shall ap-

prove” language to be mandatory in fact as well as in

form. Prior to the Ruckelshaus case, EPA construed that

language to deprive it of authority to disapprove State

plans for failure to prevent significant deterioration. The

significant deterioration regulations also are inconsistent

with other provisions of the Act, and they are not sup-

ported by the statement of purpose in § 101(b) (i) or by

the legislative history upon which the court below relied.

For these and other reasons discussed more fully below,

the significant deterioration regulations are invalid and

should be set aside by this Court.

1. EPA’s disapproval of the State implementation

plans and its amendment of those plans to include the

significant deterioration regulations are contrary to man-

datory language in § 110 of the Act. Section 110(a) (2)

expressly provides that EPA “shall approve” a State

implementation plan which satisfies eight requirements

or criteria set forth therein. Section 110(a) (3) expressly

provides that EPA “shall approve” any revision of a

State plan which satisfies those eight requirements. And,

§ 110(c) (1) authorizes EPA to propose and promulgate

regulations amending a State implementation plan only

if the plan is not “in accordance with the requirements”

set forth in § 110(a) (2). See pp. 4-5, supra. That stat-

utory language is plain, unambiguous and mandatory in

nature. No exception is made in § 110 or elsewhere in

the Act which, indeed, does not mention significant de-

terioration.

It has neither been contended nor held in this litiga-

tion, or in the prior Ruckelshaus litigation, that any of

those eight requirements consists of or includes preven-

tion of significant deterioration of the quality of air that

would remain as clean as or cleaner than the quality

required by the national primary and secondary air qual-

ity standards. To the contrary, those requirements are

directed towards the “attaimment” and maintenance“ of

the national standards. See pp. 5-6, supra. Consequently,

there can be no doubt that the actions of EPA in disap-

proving all State implementation plans and promulgating

the significant deterioration regulations as amendments

thereto, which actions were taken pursuant to the order

entered in the Ruekelshaus case over EPA’s opposition,

conflict with the express provisions of 110 of the Act.

2. The decision below is contrary to decisions of this

Court construimg 110 to be mandatory in fact as weil

as in form. The affirmance of the Ruckelshaus decision

by an evenly divided Court is, under well established

principles, without precedential effect. See, e.g., Neil v.

Biggers, 409 U.S. 188, 190-192 (1972). Whatever the

reasons for affirmance may have been at the time, the

entire Court, after further consideration of the Clean

Air Act in three subsequent cases, has construed that

Act in a manner inconsistent with the Ruckelshaus deci-

sion and with the decision below in this case. The Court

has construed the “shall approve” language in § 110 to

be actually as well as literally mandatory, so that EPA

must approve a State implementation plan, or revision

thereof, that satisfies the eight requirements prescribed

in 5110 (a) (2).

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

60 (1975), the issue was whether § 110(a) (3) requires

EPA to approve certain variances from emission limita-

tions specified in State implementation plans as “revi-

sions” of such plans. Such variances would permit more

air pollution than an implementation plan otherwise

would permit, but the plan as so revised nonetheless

would attain and maintain the national 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 variances which do not compromise

the basic statutory mandate that . . . the national pri-

mary ambient air standards be attained . . . and main-

tained thereafter” (id., at 99), this Court pointed out

that under § 110(a) (3) “Agency approval is subject only

to the condition that the revised plan satisfy the general

requirements applicable to original implementation plans”

(id., at 80), and that (id., at 79):

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

prove a state plan which provides for the timely at-

tainment and subsequent maintenance of ambient air

standards, and which also satisfies that section’s oth-

er 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 promulgate a speci-

fic plan of its own only if a State fails to submit an

implementation plan which satisfies those standards.

L110 (e).“ (Emphasis by the Court.)

The only dissenter (without opinion) was Mr. Justice

Douglas, and only Mr. Justice Powell did not participate

in the decision (id., at 99).

The Court’s conclusion in Train that the Act requires

EPA to approve State implementation plans and revi-

sions which provide “for the timely attainment and sub-

sequent maintenance of [the national primary and sec-

ondary] ambient air standards” has been reaffirmed in

two subsequent decisions: Hancock v. Train, 426 U.S.

167 (1976), and Union Electric Co. v. EPA, 427 US.

246 (1976).

In the course of holding (over the dissent of Justices

Stewart and Rehnquist) in Hancock that § 118 of the

Act does not require Federal installations to abide by

the permit requirement of State implementation plans,

this Court observed that EPA is “required to approve

each State’s implementation plan as long as it was adopted

after public hearings and satisfied the conditions specified

in 8 110 (a) (2).“ 426 U.S., at 169-170.“ And, while

holding in Union Electric Co. that courts may not review

and overturn EPA’s approval of a State implementation

plan on the basis of “claims of economic and technological

infeasibility” since EPA itself cannot “consider such

claims in approving or rejecting a state implementation

plan“ (427 U.S., at 256; generally, at 256-266), this

Court pointed out (427 U.S., at 257) that § 110(a) (2):

“ |. sets out eight criteria that an implementation

plan must satisfy, and provides that if these criteria

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 con-

cerned with factors other than those specified, Train

v. NRDC, supra, at 71 n. 11, 79, and none of the

10 See, also, id., at 170. So, too, this Court contrasted the use of

the “permissive” word “may” in relevant provisions of §§ 111, 11°

and 114 with the use of the mandatory word “shall” in § 110(a)

under which a State “must promulgate an imp.ementation plan,” to

support its holding in Hancock that Federal facilities are not sub.

ject to State permit requirements. Id., at 192, 194-195. See, also,

Natural Resources Defense Council, Inc. v. Train, 545 F.2d %20,

324-325 (2d Cir., 1976), which holds that the requirement in

§ 108(a) (1) of the Act that EPA “shall . . publish“ a list including

each pollutant that has an adverse effect on public health or welfare

is “mandatory.”

eight factors appears to permit consideration of tech-

nological or economic infeasibility. Nonetheless, if a

basis i to be found for allowing the Administrator to

cone ier such claims, it must be among the eight

criteria, and so it is here that the argument is fo-

cused.” (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 prevent 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 requirements

specified therein, regardless of other considerations, on the

ground that the Train and Union Electric cases “did not

consider the issue of nondeterioration” or “the signifi-

cant deterioration of air cleaner than the national stand-

ards” (A. 64a, 65a), and that the pertinent statement

in Hancock was “dictum” (A. 63a, n. 39). As a matter

of fact, however, Train was not concerned oniy “with

air pollution below i. e., dirtier than] national standards

(A. 64a), but also involved variances which would permit

cleaner air to deteriorate to the level of the national

standards.“ In any event, this Court's reiteration in

Hancock and Union Electric of the conclusion in Train

that the “shall approve” language is mandatory, and

the application of that interpretation in Union Electric

to a completely different factual situation, demonstrates

This Court expressly noted that treating variances as revisions

under § 110(a) (3) “would result in variances being readily approved

in two situations: first, where the variance does not defer compli-

ance 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 continued mainten-

ance.” 421 U.S., at 77. 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.

its general application to situations in which EPA’s ap-

proval of (or disapproval and promulgation of amend-

ments to) State implementation plans is involved. The

Court did not make any exception for plans that fail

to provide for the prevention of significant deterioration,

or even reserve that situation,” and no exception is made

in 8110 itself.

3. The decision below is contrary to EPA’s contempo-

raneous interpretation of § 110. EPA initially construed

the 1970 Amendments to require its approval of State

implementation plans which complied with the eight cri-

teria specified in § 110 (a) (2), and thus concluded that

such plans could not be disapproved or amended for

failure to include provisions for the prevention of sig-

nificant deterioration. See pp. 8-9, supra. That interpreta-

tion was asserted and defended by EPA, the Department

of Justice and the Office of the Solicitor General through-

out the Ruckelshaus litigation. See p. 9, supra. And,

in proposing the significant deterioration regulations pur-

suant to an injunctive order in Ruckelshaus, EPA made

clear that it “adheres to the view. . . that the Act does

not require EPA or the States to prevent significant de-

terioration of air quality.” See p. 10, supra.

A similar situation was involved in the Train case

when decided by this Court. EPA’s initial “interpretation

of 8 110 (a) (3), which provides that the Agency shall

approve any revision of an implementation plan which

meets the §110(a)(2) requirements applicable to an

original plan,” was that “§ 110 (a) (3) permits a State

12 This Court hardly could have been unaware of the significant

deterioration issue, as the opinion of the Fifth Circuit before the

Court in Train and the opinion of the Eighth Circuit before the

Court in Union Electric are among those that uncritically accepted

Ruckelshaus as establishing a requirement for the prevention of

significant deterioration. See 489 F.2d 390, 408 (5th Cir., 1974),

and 515 F.2d 206, 220 (8th Cir., 1975). And see n. 29, p. 56, infra.

to grant individual variances from generally applicable

emission standards . . . so long as the variance does not

cause the plan to fail to comply with the requirements

of §110(a) (2).” 421 U.S., at 70. But after four courts

of appeals had rejected that interpretation, EPA modi-

fied its guidelines to comply with the then-unanimous

rulings that after the attainment date the postponement

provision was the only basis for obtaining a variance.”

421 U.S., at 74.

This Court concluded in Train that, even if EPA’s

original “construction of the Act was not] the only one

it permissibly could have adopted,” it “was at the very

least sufficiently reasonable that it should have been ac-

cepted by the reviewing courts.” 421 U.S., at 75. Since

“the Agency’s interpretation of §§ 110 (a) (3) and 110(f)

was ‘correct’ to the extent that it can be said with com-

plete assurance that any particular interpretation of a

complex statute such as this is the ‘correct’ one,” and in

view of the “facts that the Agency is charged with ad-

ministration of the Act, and that there undoubtedly has

been reliance upon its interpretation by the States and

other parties affected by the Act, we have no doubt

whatever that its construction was sufficiently reasonable

to preclude the Court of Appeals from substituting its

judgment for that of the Agency. Udall v. Tallman, 380

U.S. 1, 16-18 (1965); McLaren v. Fleischer, 256 U.S.

477, 480-481 (1921).” 421 U.S., at 87.

We submit that EPA’s initial interpretation of § 110

(a) (2) involved in this case also “was at the very least

sufficiently reasonable that it should have been accepted

by the reviewing courts.” That interpretation, like EPA’s

interpretation involved in Train, was based upon the

' mandatory “shall approve” language which is equally

applicable to approval of State implementation plans

under § 110(a) (2) and to approval of revisions of such

plans under § 110(a) (3). In both situations, the identi-

cal requirements must be satisfied in order for the “shall

approve” language to apply, and those requirements do

not include prevention of significant deterioration, just

as they do not include prevention of variances, so long

as the State implementation plan does not fail to provide

for attainment and maintenance of the national primary

and secondary standards. In short, EPA’s contemporane-

ous interpretation of § 110 provides additional support for

the position which we advocate in this case, just as that

Agency’s similar interpretation of § 110(a) (3) provided

support for this Court’s decision in Train, in accordance

with general principles enunciated and applied by this

Court in many cases including those cited in Train as

quoted above.

4. The significant deterioration regulations also are

inconsistent with other provisions of the Act. We have

emphasized the mandatory “shall approve” language in

110 (a) (2) of the Act. That is the statutory provi-

sion which expressly and directly applies to EPA’s ap-

proval or disapproval of State implementation plans, and

to its promulgation of regulations amending such plans

insofar as they have been disapproved. It should not be

overlooked, however, that the significant deterioration

regulations also are inconsistent with other provisions

of the Act.

Most important in this regard is the fact that EPA

has sought to enforce those regulations by prohibiting

the construction or operation of a new source of air pol-

lution if a violation of the significant deterioration incre-

ments would result, even though the new source would

use the best available system of emission reduction in

compliance with the Federal standards of performance

for new sources established pursuant to § 111 of the Act.

See p. 11, supra.

That enforcement provision is not consistent with

§ 111(e), under which only the operauon of a new source

“in violation of any standard of performance applicable

to such source” is made “unlawful,” and subjected to en-

forcement under § 113. See p. 7, supra. Neither is it

consistent with the § 110 (d) definition of an “applicable

implementation plan” as one which “has been approved

under subsection [110] (a) or promulgated under sub-

section [110] (e) and which implements a national pri-

mary or secondary ambient air quality standard in a

State” (emphasis added). The only implementation plans

enforceable under § 113 are such “applicable implementa-

tion plan[s].” See pp. 6-7, supra. Those inconsistencies are

tied together, and to the inconsistency of the significant

deterioration regulations with the requirements in § 110

for approval of a State plan or revision thereof, by the

fact that, under §§ 110(a) (2) (D) and (a) (4), one such

requirement is that the implementation plan “provide for

adequate authority to prevent the construction or modi-

fication of any new source to which a standard of per-

formance under section 111 will apply at any location

which the State determines will prevent the attainment

or maintenance. of a national ambient air quality

primary or secondary standard” (emphasis added). See

pp. 7-8, supra.

In sum, the enforcement provisions of the Act are

limited to enforcement of the new source performance

standards established under § 111 and of “applicable im-

plementation plans’ which “implement a national pri-

mary or secondary ambient air quality standard,” in-

cluding preconstruction review aimed at preventing the

construction or modification of a new source at a location

where such construction or modification would “prevent

the attainment or maintenance” of those national stand-

ards. As so written and construed, the substantive pro-

visions of the Act in regard to both State implementation

plans and new source performance standards, and the en-

forcement provisions of the Act, make a harmonious

—

whole. On the other hand, by providing that preconstruc-

tion review of new (including modified) sources shall also

encompass compliance with the requirements of the signi-

ficant deterioration regulations, those regulations are as

inconsistent with §§ 111 and 113 of the Act as they are

with § 110.

5. Approval of State implementation plans which do

not prevent significant deterioration is not inconsistent

with the purposes of the Act. The only purported statu-

tory basis for the holdings by the lower courts, both in

this case and in the prior Ruckelshaus case, is the state-

ment in §101(b)(1) that one of the purposes of the

Clean Air Act 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 .. See pp. 9 n. 8, and 14, supra. Even

if that statement of purpose included a general purpose

that EPA prevent significant deterioration of air that will

continue to comply with the national primary and sec-

ondary standards, it could hardly override the express

substantive requirement in §110 that EPA “shall ap-

prove” a State implementation plan that satisfies the

criteria set forth in § 110(a) (2)—none of which includes

the prevention of significant deterioration.“ That is par-

ticularly true since § 110 is the more specific statutory

provision. One of the accepted canons of statutory con-

1 In Connecticut Co. v. Power Comm'n, 324 U.S. 515, 527 (1945),

for example, this Court held that language of general purpose in

the Federal Power Act favoring State, as opposed to Federal, regu-

lation “cannot nullify a clear and specific grant of jurisdiction”

to the Federal Power Commission contained in the substantive pro-

visions of the Act “even if the particular grant seems inconsistent

with the broadly expressed purpose.” As this Court pithily stated

in Train v. City of New York, 420 US. 35, 45 (1975), “legislative

intention, without more, is not legislation.”

. ˙ —v-N . ͤ!1vCm m.. ¼ AViEᷓ eel

struction is that, where statutory provisions conflict with

each other, the more specific provision prevails.“

But however that may be, there is nothing in the

literal language of that purpose clause which necessarily

encompasses, even in general terms, the significant de-

terioration regulations promulgated by EPA. Certainly,

those regulations cannot be based upon the “protect and

enhance” language alone, as such an interpretation would

not permit any deterioration of existing air quality—

which no one even suggests was intended by the Con-

gress—while the regulations permit some deterioration

even in Class I areas. Moreover, the stated purpose is

to protect and enhance the “quality of the Nation’s air

resources” (emphasis added), not of each and every loca-

tion in the Nation. Implementation of the national sec-

ondary and primary standards, the new source perfor-

mance standards and other substantive provisions of the

Act (such as the standards of emissions for moving ve-

hicies) obviously will “protect and enhance the quality

of the Nation’s air resources” on an overall national basis.

Furthermore, the stated purpose is to protect and en-

hance the quality of the Nation’s air resources “so as

to promote the public health and welfare and the pro-

ductive capacity of its population.” Promotion of the

“public health” as that term is used in the Act is as-

sured by implementation of the national primary stand-

ards which are set at levels EPA deems “requisite to

protect the public health” after “allowing an adequate

This is true even if the more specific provision is enacted prior

to the general provision. E.g., Morton v. Mancari, 417 U.S. 535,

550-551 (1974); Bulova Watch Co. v. United States, 365 U.S. 753,

758 (1961). And, of course, since § 110 was enacted in 1970, after

the enactment of 5 101 (b) (1) in 1963 and its amendment in 1967,

any otherwise “irreconcilable” conflict should be resolved in favor

of §110, even if those provisions were equally specific. E. g.,

Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976); United

States v. Borden Co., 308 U.S. 188, 198-199 (1939).

margin of safety; and promoticn of the “public wel-

fare” as that term is used in the Act is assured by

implementation of the national secondary standards which

are set at levels EPA deems “requisite to protect the

public welfare from any known or anticipated adverse

affects associated with the presence of such air pollu-

tant in the ambient air.” See p. 4, supra. Since the

purpose clause uses the very terms—‘“public health” and

“public welfare“ —explicated in the national primary

and secondary standards, the purpose stated in § 101

(b) (1)—protection and enhancement of the quality of

the Nation’s air resources—clearly is served by imple-

menting the national primary and secondary standards.

And, the “productive capacity of [the Nation's] popula-

tion“ would be hindered, rather than “promot([ed],” by

the significant deterioration regulations insofar as they

prevent construction or modification of productive facili-

ties that satisfy the national primary and secondary

standards.

Indeed, the purpose clause in question could be given

effect, without overriding the “shall approve” language

in § 110, even if 8101 (b) (1) stated that a purpose of

the Act is to prevent the significant deterioration of air

which exceeds the quality required by the national pri-

mary and secondary standards. From its beginning in

1955, the Clean Air Act has included the policy, now

stated in § 101 (a) (3), that “the prevention and control

of air pollution at its source is the primary responsibility

of the States and local governments.” “

1 The 1955 Act, which primarily provided for Federal research

and assistance to the States, included a statement of “the policy of

the Congress to preserve and protect the primary responsibilities

and rights of the States and local governments in controlling air

pollution” (69 Stat. 322). That statement was enacted in its present

form by the Clean Air Act of 1963, which first enacted the Findings

and Purposes section (77 Stat. 392-393) now set forth in substan-

tially identical language in § 101 of the Act.

While the subsequent history of the Act has been one of

gradually expanding Federal participation in the abate-

ment of air pollution and the 1970 Amendments “sharply

increased federal authority and responsibility in the con-

tinuing effort to combat air pollution,” “[n]onetheless, the

Amendments explicitly preserved the principle: ‘Each

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. See, generally, id., at 63-65, and pp.

53-54, infra. Thus, § 116 of the Act expressly preserves

the right of the States to impose more “stringent” stand-

ards and limitations than those required by the Act.

If § 101(b) (1) did include a policy to prevent signi-

ficant deterioration, therefore, the obvious conclusion is

that the policy is for the States to implement as they

see fit pursuant to § 116, rather than that the mandatory

“shall approve” language in § 110 should be disregarded

so as to create a Federal role in the implementation of

that policy which has not been provided for in the sub-

stantive provisions of the Act. That is emphasized by

the fact that §101(b) (1) was enacted (except for the

“and enhance” language) by the Clean Air Act of 1963

which merely “authorized federal authorities to expand

their research efforts, to make grants to state air pollu-

tion control agencies, and also to intervene directly to

abate interstate pollution in limited circumstances.”

Train v. Natural Resources Def. Council, supra at 63-64

(emphasis by the Court). So, too, under the Air Quality

Act of 1967, which amended § 101(b) (1) to add the “and

enhance” language so as to enact it in its present form,

“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 do so.” Id.,

at 64. See pp. 40-44, infra.

It was not until the 1970 Amendments that the Con-

gress, because of the “little progress” made by the States,

“reacted by taking a stick to the States” so that for “the

first time they were required to attain air quality of

specified standards, and to do so within a specified period

of time.” Id., at 64-65. But that “stick” consisted of the

substantive provisions set forth in §§ 107-112 of the Act,

including the provision in § 110 that EPA “shall approve”

State implementation plans, and revisions thereof, that

meet the requirements set forth in § 110(a) (2), and that

authorizes EPA to promulgate regulations amending such

plans only insofar as they fail to satisfy those require-

ments.

We submit, therefore, that even if 8 101 (b) (1) did

include a purpose to prevent significant deterioration of

air that would continue to comply with the national

standards, the reasonable conclusion is that implementa-

tion of that purpose is one of the matters that the Con-

gress has left to the “primary responsibility of States and

local governments” pursuant to the long-standing policy

stated in §101(a)(3). By thus giving effect to that

policy and to the “shall approve” language in § 110, as

well as to the purpose expressed in § 101 (b) (1) (assum-

ing that it includes prevention of significant deteriora-

tion), such an interpretation would accord with the fun-

damental rule of statutory construction that, if possible,

the various provisions of a statute are to be construed

so as to give effect to each rather than overriding or dis-

regarding the language of one such provision.“

Finally, even if 5101 (b) (1) is read to imply both a

purpose to prevent significant deterioration and a Federal

role in such prevention, that still would not justify dis-

regarding the express and unambiguous language of

16 See, e.g., FAA Administrator v. Robertson, 422 U.S. 255, 261

(1975); Weinberger v. Hynson, Westcott & Dunning, 412 U.S. 609,

633 (1973).

§ 110. As EPA observed in proposing the significant de-

terioration regulations, pursuant to the injunction in the

Ruckelshaus case, nothing in § 101 (b) (1) or the legisla-

tive history relied upon by the courts defines significant

deterioration or suggests specific or particular measures

for its prevention. See page 10, supra. Any such general

undefined policy of preventing significant deterioration

can be accommodated by the new source performance

standards required to be established under § 111, man-

dating use of the best available system of reducing emis-

sions that is economically feasible. Section 111 does—

and was intended to—afford a Federal means of protect-

ing the quality of air that is cleaner than is required by

the national primary and secondary standards. Natural

Asphalt Pavement Ass’n v. Train, —— U.S. App. D.C.

——, 539 F.2d 775, 783 (1976). See p. 54, infra. Cer-

tainly, there is no basis in § 101(b) (1), or in the legis-

lative history, or in reason for concluding that even more

er limitations can be demanded by EPA of every

tate.

To summarize, the language of 8 101 (b) (1) cannot

reasonably be construed as expressing a purpose to pre-

vent significant deterioration of air that would remain as

clean as or cleaner than is required by the national pri-

mary and secondary standards. But even if § 101(b) (1)

does express such a purpose, it would not afford a basis

for overriding the express provisions of § 110, which were

enacted later and are more specific than § 101(b) (1).

Both that assumed purpose and the provisions of § 110

can and should be effectuated, by recognizing that the

prevention of significant deterioration has been left to

the States under § 116 and to the new source performance

standards established pursuant to § 111, rather than to

EPA under § 110.

6. The significant deterioration regulations are not

supported by legislative history. In view of the plain lan-

guage of § 110 and decisions of this Court interpreting

that language to mean what it says, as well as the other

circumstances discussed above, there is little if any need

to resort to the legislative history of the Clean Air Act.

But since the court below primarily relied upon certain

legislative history of the 1970 Amendments, which was

thought to afford “every indication that the Congress in-

tended in 1970 to continue a policy of prevention of signi-

ficant deterioration of air quality” (see pp. 14-15, supra),

we have concluded that we should address the legislative

history in depth despite the risk of overemphasizing its

importance. When that is done, it becomes apparent that

the material relied upon does not support the conclusion

of the court below and that, to the contrary, the legisla- .

tive history affirmatively demonstrates that the Congress

intended the “shall approve” language in §110 to be

mandatory in fact as well as in form.”

17 The court below also relied to some extent upon “recent con-

gressional statements” made last year in connection with proposed

amendments to the Clean Air Act which the Congress considered,

but did not enact. The proposed amendments included lengthy pro-

visions that would expressly and specifically limit the deterioration

of air cleaner than the national standards require. While the com-

mittee reports and statements during the debates by proponents

of the legislation do contain assertions to the effect that the “protect

and enhance” purpose clause in § 101(b)(1) of the Act (as enacted

by the 1967 Act) incorporates a “policy” of preventing significant

deterioration, which was not altered by the 1970 Amendments,

opponents were equally clear that no such “policy” had ever been

intended by the Congress. Moreover, even those who supported the

view that such a “policy” was included within the general purpose

expressed by § 101(b)(1) conceded that the Congress had not spelled

out what would constitute significant deterioration or the process

by which it would be prevented. The pertinent statements in these

regards are collected in the Petition in No. 76-529, at 20-24. In

view of the conflicting nature of those statements, we see no need to

discuss them further as they exemplify the reasons why “the views

of a subsequent Congress form a hazardous basis for inferring the

intent of an earlier one.” United States v. Price, 361 U.S. 304, 313

(1960). However, a comparison of the extensive consideration which

the Congress devoted to the significant deterioration issue when

The starting point must be the Clean Air Act of 1963

because it first enacted (as §1) the Findings and Pur-

poses section now designated as § 101,“ including the

purpose “to protect the Nation’s air resources so as 0

promote the public health and welfare and the productive

capacity of its population” (77 Stat. 393). Since that

purpose clause (as amended in 1967 to add “and enhance

the quality of” after “to protect”) is the sole asserted

statutory basis for the significant deterioration regula-

tions, and since any requirement for the prevention of

significant deterioration at most involves protection rath-

er than enhancement of air quality, it would seem that

if such a requirement exists it must have originated

with the 1963 Act.

No one has contended, however, either in this litiga-

tion or in the prior Ruckelshaus litigation, that there is

any legislative history of the 1963 Act which demon-

strates a Congressional intent or policy to prevent signi-

ficant deterioration, and we have found none. Rather, the

legislative history demonstrates that the Congress had no

such intent. As this Court said in the Train case, the

1963 Act was enacted to authorize “federal authorities

to expand their research efforts, to make grants to state

air pollution control agencies, and also to intervene di-

rectly to abate interstate pollution in limited circum-

stances.” See p. 36, supra. Thus, in its discussion of the

“Findings and Purpose” section of the legislation, S. Rept.

No. 638, 88th Cong., Ist Sess. (1963), states at pp. 5-6

among other things, that: |

truly before it, with the complete absence of any such considera-

tion uP to and 1 —— of the 1970 Amendments, affords

a convincing demons on t the pertinent islati i

is contrary to the decision below. 1. K

Section 1 of the 1963 Act was renumbered as § 101 by a 1965

— (79 Stat. 992) which did not change the language of the

section.

“Section 1. This section of the proposed revision

of existing law is an expansion and clarification of

the provisions of section 1 of existing law and there

are several portions of this section which merit par-

ticular attention.

Financial and technical assistance would be made

available to State and local governments for the de-

velopment and execution of their air pollution pre-

vention and control program. This legislation rec-

ognizes the importance of protecting our air re-

sources and accordingly provides not only for re-

search and developmental programs, but also provides

for procedures to be followed in enforcing air pollu-

tion abatement.” (Emphasis added.)

See, also, H. Rept. No. 508, 88th Cong., Ist Sess. (1963),

at 4, 6.

Hence, it was because the Congress “recognize[d] the

importance of protecting our air resources” that it “ac-

cordingly” provided for the research and development pro-

grams and the abatement procedures contained in the

substantive provisions of the 1963 Act. There is no sug-

gestion that the purpose “to protect” the Nation’s air

resources was intended also to confer upon the Federal

Government authority to establish other programs or

abatement procedures deemed to be necessary or desirable

for that purpose.“

1% The abatement procedures of the 1963 Act were contained in

§ 5 (77 Stat. 396-398) which made the “pollution of air in any State

or States which endangers the health or welfare of any persons

subject to abatement as provided in this section.” They consisted

essentially of suits by the Attorney General for the “abatement”

of “pollution of air which is endangering the health or welfare of

persons in a State or States other than that in which the dis-

charge or discharges (causing or contributing to such pollution)

originate.” Thus, as is stated in S. Rept. No. 638, supra at 9-10,

“Section 5... establishes the manner for Federal action in abating

air pollution,” by providing “authority for limited Federal partici-

As has been noted, the Air Quality Act of 1967 amend-

ed the clause in question to add “and enhance the quality

of” after “to protect” (81 Stat. 485). The legislative

history of the 1967 Act is equally barren of any indica-

tion that the Congress intended by that clause to estab-

lish a policy for the prevention of significant deteriora-

tion or to authorize any other Federal action not provided

for in the substantive provisions of the legislation.* Here,

too, every indication from the legislative history is to the

contrary. For example, S. Rept. No. 403, supra at 3,

states that:

“In order to facilitate the objective of a national

abatement program which will enhance the quality of

our Nation’s air, the amendments provide the Secre-

pation and assistance under certain circumstances directed towards

the abatement of specific air pollution problems.” See, also, H.

Rept. No. 508, supra at 8-9.

The only suggestion, in this litigation or in the prior litigation,

that the legislative history of the 1967 Act provides any indication

of such a Congressional intent is the statement by the court below

that “to a lesser degree, the legislative history of the” 1967 Act

“expressed a policy of nondeterioration” (A. 56a). The court cited

(id., n. 30) a statement in S. Rept. No. 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 pollu-

tion and to prevent further environmental deterioration in the

future.““ That language was taken from a sentence which stated

in full: “We must define the steps necessary to assure the lessening

of current levels of pollution and to prevent further environmental

deterioration in the future,” 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 de-

velop the requisite framework to implement the desired goals.” S.

Rept. No. 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 sug-

gested that there is any other legislative history of the 1967 Act

indicating an intent on the part of Congress to require prevention

of significant deterioration.

tary of Health, Education, and Welfare with the

following authority:

“(1) To request an immediate injunction to abate

the emission of contaminants which present ‘an im-

minent and substantial endangerment to the health

of persons,’ anywhere in the country;

“(2) To designate ‘air quality control regions’ for

the purpose of implementing air quality standards,

whenever and wherever he deems it necessary to pro-

tect the public health and welfare.

3) In the absence of effective State action in ac-

cordance with the provisions of the act, to establish

ambient air quality standards for such regions.

“(4) In the absence of effective State action in

accordance with the provisions of the act, to enforce

such standards.

“(5) In the absence of action by the affected

States, to establish Federal interstate air quality

planning commissions.” (Emphasis added.)

The “authority” conferred on HEW as thus generally

described was conferred by substantive provisions of the

legislation which are discussed in detail in the remainder

of the Report (particularly at pp. 17-50). For present

purposes, however, the important point is that it was the

substantive authority which would thus be expressly con-

ferred on HEW that was intended “to facilitate the ob-

jective of a national abatement program which will en-

hance the quality of our Nation’s air... .” There is no

suggestion that the stated purpose to “protect and en-

hance” the quality of the air was intended to confer some

additional authority, such as the prevention of significant

deterioration.”

21 Similarly, H. Rept. No. 728, 90th Cong., Ist Sess. (1967), at 1,

states that the legislation was “intended primarily to pave the

way for control of air pollution problems on a regional basis in

accordance with air quality standards and enforcement plans de-

Indeed, under the 1967 Act “air quality control regions”

were comprised of areas where, because of “urban-

industrial concentrations, and other factors” (§ 107(a)),

the air was so polluted that it “endangers the health or

welfare of.. persons“ (§ 108 (a)). 81 Stat. 491. Thus,

as stated in S. Rept. No. 403, supra at 4, if “an area

is not now a problem area,” it is only if and when “the

air quality . . . deteriorates below the level required to

protect the public health and welfare” that HEW would

be “required to designate that region for the establish-

ment of air quality standards.. . Senator Muskie

similarly stated that: “When the air quality of any re-

gion deteriorates below the level required to protect public

health and welfare, the Secretary is required to desig-

nate that region for the establishment of air quality

standards, enforceable by the Federal Government if the

States fail to act.” 113 Cong. Rec. 19172 (1967). In

short, the procedures for the prevention of air pollution

established by the 1967 Act were intended to be brought

into play only when the quality of the air had deteriorated

below the level specified in the ambient air quality stand-

ards, and thus plainly were not intended to prevent

significant deterioration of air that would remain as

clean as or cleaner than those standards would allow.

veloped by the States,” with HEW being “empowered to initiate

action to insure setting and enforcement of standards if a State

failed to take reasonable action to achieve compliance.” The Report

goes on (pp. 1-3) to list 19 additional purposes of the legislation,

none of which in any way suggests a purpose to prevent significant

deterioration of air quality better than would be required by the

ambient air quality standards. That Report, like the Senate Report,

discusses the substantive provisions of the legislation at length (see,

particularly, pp. 9-38). In contrast, the only specific reference in the

reports to the statement of purpose in §101(b)(1) is the bare

statement that the “purposes of this title are revised, by revising

paragraph (b)(1), to include provisions 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.”

H. Rept. No. 728, supra at 30 (S. Rept. No. 403, supra at 40 and 51,

is almost identical).

Some reliance was placed below (see A. 56a, n. 30)

upon the Guidelines for the Development of Air Quality

Standards and Implementation Plans (1969), issued un-

der the 1967 Act by HEW’s National Air Pollution Con-

trol Administration. That reliance was based upon the

statement in the Guidelines ($1.51) that, since an ex-

plicit purpose of the Act is ‘to protect and enhance the

quality of the Nation’s air resources,) [al ir 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.”

However, as it shows on its face, that Guideline was

directed to the establishment of air quality standards

under the 1967 Act, rather than to the deterioration of

air cleaner than was required by those standards. And,

as we have noted, under that Act the standards applied

only in control regions comprising areas in which the air

already was so dirty as to endanger public health or

welfare. In short, the Guideline was directed to cir-

cumstances entirely different from those to which the

significant deterioration regulations are directed, and the

reliance by the court below upon the Guideline’s use of

the words “significant deterioration” is merely a play on

words.

Consequently, the court below erred in finding from

that Guideline an “administrative interpretation” that

the 1967 Act “expressed a policy of nondeterioration”

(A. 55a-56a), at least insofar as that “policy” was

equated by the court to the kind of deterioration that

the significant deterioration regulations are designed to

prevent. A similar error was made in regard to two

snippets of testimony from the Senate hearings on the

1970 Amendments, which also were relied on by the court

below as showing such an “administrative interpretation“

of the 1967 Act (see A. 57a-58a).

For example, HEW Secretary Finch testified that “it

has been and will continue to be our view that imple-

mentation plans that would permit significant deteriora-

tion of air quality in any area would be in conflict with

[the ‘protect and enhance’} provision,” and that [wle

shall continue to expect States to maintain air of good

quality where it now exists.” Air Pollution—-1970, Hear-

ings before the Subcommittee on Air and Water Pollu-

tion of the Senate Public Works Committee, 91st Cong.,

2d Sess. (1970), at 132-133. That statement by itself

is ambiguous, for there is no indication therein what

Secretary Finch considered to be either “significant de-

terioration” or “air of good quality.”

It appears from the context of the statement, however,

that Secretary Finch was saying that State plans should

not permit deterioration to levels worse than the national

standards and should continue to maintain the air at

qualities which satisfy those standards. For, in the im-

mediately preceding paragraphs of his testimony, the

Secretary recognized that what “the States would have to

spell out“ were “the measures to be taken to achieve

and preserve national air quality standards;“ but that,

at the same time, the provision for national

standard setting would not impair any State’s right to

establish standards requiring higher levels of air quality,”

so that the States “would have the option of designing

their implementation plans to achieve or preserve higher

than national quality levels, if they wished to do so.”

Id., at 132. That express recognition of a State’s option

or right to choose whether air quality be maintained at

a level higher than the national standards is inconsistent

with the view that the Secretary also meant to say that

the States are required to prevent significant deteriora-

tion of air that would remain as clean as or cleaner

than the national standards allow.”

22 The testimony by Secretary Finch was contained in a written

statement submitted by Undersecretary Veneman. The other bit

In any event, the Court of Appeals conceded that the

purported “administrative interpretation” of the 1967

Act as expressing a policy for the prevention of signifi-

cant deterioration would not suffice in the absence of

other evidence of “congressional acquiescence in the

agency interpretation” when it enacted the 1970 Amend-

ments (A. 59a).** But that court concluded that the

of testimony relied upon by the court below was made extempo-

raneously by Undersecretary Veneman at the time he submitted the

Secretary’s statement. While that testimony (see A. 57a) may seem

to go somewhat further than the Secretary, it generally follows

the Secretary’s prepared testimony, and hardly could have been

intended to contradict the Secretary. Moreover, Mr. Veneman

agreed with Secretary Finch that the State plans would be required

to spell out measures for attaining and maintaining the national

standards, but that the legislation “would not impair any State’s

right to establish standards requiring higher levels of air quality”

if it so chooses. Air Pollution—1970, supra at 143. Indeed, Mr.

Veneman also testified: “Now, I am sure my attorneys and ad-

ministrators would be shaken up about that, but what if we were

to say that any State or locality that is above the national minimum

standards that were adopted would not be permitted to go below

what they have presently in effect?” Jd., at 159. In mentioning that

possibility (in a dialogue with Senator Cooper), but noting that the

Department's “attorneys and administrators would be shaken up“

by it, the Undersecretary could not have understood that such a

nondegradation requirement constituted either the “administrative

interpretation” by HEW of the 1967 Act or what it in fact pro-

posed in regard to the contents of the pending 1970 legislation.

28 The Court of Appeals cited its own decision in Chisholm v.

F. C. C., —— U.S. App. D.C. ——, 538 F.2d 349 (1976), cert. den.,

No. 76-205 (1976), and partially quoted therefrom (see A. 59a,

n. 34). The full discussion in Chisholm, including additional cita-

tions of supporting decisions by this Court, may be found at p.

361 of 538 F.2d. We do not agree, however, that “congressional

acquiescence” in the “agency interpretation” of the 1967 Act would

suffice to validate the significant deterioration regulations. This is

not a case “where Congress has re-enacted the statute without perti-

nent change,” as in NLRB v. Bell Aerospace Co., 416 U.S. 267, 274-

275 (1974), which was cited and quoted in the opinion below (A.

60a). The 1970 Amendments substantially revised the 1967 Act,

including enactment of the entirely new §110. At the very least,

if the mandatory “shall approve” language in that section is to be

disregarded, there would have to be substantial legislative history

. » eo

“committee reports [on the 1970 Amendments] contain

express language that the principle of nondeterioration

was preserved by the Clean Air Act Amendments of

1970” (A. 60a). In fact, the court relied in that regard

only upon a single passage from the Senate Report (A.

57a-58a). Indeed, that passage is the only piece of legis-

lative history, from the enactment of the “to protect”

language by the 1963 Act through enactment of the “and

enhance” language by the 1967 Act and up to and includ-

ing enactment of the 1970 Amendments, in which it even

has been claimed, by the court below or by any litigant,

that any member of the Congress has expressed the view

that the “protect and enhance” purpose clause requires

the prevention of significant deterioration.

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

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

“The bill would not require the attainment of tne

air quality goals within a specified time period. Nev-

ertheless, it is the Committee’s view that progress

in this direction should be made as rapidly as pos-

sible. In areas where air pollution levels already

are relatively low, the attainment and maintenance

of these goals should not require an extended time

period. In areas where current air pollution levels

are already equal to, or better than, the air quality

goals, the Secretary should not approve any imple-

mentation plan which does not provide, to the mazxi-

mum extent practicable, for the continued mainten-

ance of such ambient air quality. Once such national

goals are established deterioration of air quality

affirmatively indicating that the Congress so intended. Mere “ac-

quiescence” in an “agency interpretation” that the “protect aod

enhance” purpose clause as contained in the 1967 Act expressed a

“policy” of preventing significant deterioration sureiy would not be

enough. Without more, for example, the reasonable conclusion would

be that the Congress left the implementation of that policy to the

States under § 116 and to the new source performance standards

established under § 111. See pp. 35-88, supra, and pp. 58-54, infra.

—

should not be permitted except under circumstances

where there is no available alternative. Given the

varying alternative means of preventing and con-

trolling air pollution—including the use of the best

available control technology, industrial processes, and

operating practices—and care in the selection of sites

for new sources, land use planning and traffic control

—deterioration need not occur.” (Emphasis added.)

We note that the foregoing passage from the Senate

Report does not mention or otherwise refer to either the

“protect and enhance” purpose clause in § 101 (b) (1) of

the Act or the purported “administrative interpretation”

by HEW of that clause as including a policy of prevent-

ing significant deterioration of air quality that would

remain as good or better than the quality required by

the national standards.“ Plainly, therefore, that passage

could not evidence Congressional acquiescence in such an

administrative interpretation even apart from the fact,

as we have demonstrated, that no such administrative

interpretation existed. But however that may be, there

are numerous other reasons why that passage does not

justify the significant deterioration regulations.

(a) The language in the passage that we have em-

phasized in itself is ambiguous. 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 be maintained at a level that is either

equal to or better than the national standards (i. e., at a

level which satisfies those standards) unless there is no

24 Indeed, insofar as we have discovered, no member of Congress

ever asserted, until after the Ruckelshaus case was instituted, that

that purpose clause embodied a policy to prevent significant deter-

ioration.

25 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.

available alternative; 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

which is “equal to” the national standards, unless there

is no available alternative.

(b) The second interpretation proves too much, inso-

far as the significant deterioration regulations are con-

cerned, 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 III redesignation

where deterioration down to the national standards is

permitted by the regulations. See pp. 11-13, supra.

dicates that the first interpretation—air quality that is

equal to or better than the national standards should

continue to comply with those 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 direc-

tion should be made as rapidly as possible.“ The context

of that passage within the Report as a whole further

indicates that the first interpretation was intended. It

appears in a section (pp. 9-11) devoted to the statutory

provision (§ 109 of the Act) for the establishment of the

national primary and secondary standards or goals at

levels sufficient to protect the public health and welfare.

The provisions of the bill relating to implementation

plans (which became—as revised—§ 110 of the Act) 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

implementation of standards at least as stringent as the

national ambient air quality standards” (p. 12; emphasis

added), and that the Secretary of HEW“ would have

“the authority to replace all or any portion of any im-

plementation plan submitted by a State where attainment

of the nationally [sic] ambient air quality standard with-

in the time required is not provided” (p. 14; emphasis

added).

(d) As the immediately foregoing excerpts from the

Senate Report indicate, the provisions which became § 110

of the Act were in fact intended to authorize disapproval

of State implementation plans, and Federal amendment

of those plans, only if they did not provide for attainment

and maintenance of the national standards. As that Re-

port also states (at p. 12), the “Committee bill .. . would

provide for the substitution of [Federal] 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.” This is con-

firmed by the section-by-section analysis in the Senate

Report. In regard to the provision of the bill which

(with some revision) was enacted as § 110 of the Clean

Air Act, the Report states (at p. 55), in part, that:

“The Secretary shall approve a plan if, among oth-

er things, it provides for attainment of the standards

within 3 years, includes emission requirements and

schedules of compliance, includes provisions for moni-

toring devices, includes effective procedures, includ-

ing land use and air and surface transportation con-

trols and permits, to insure that all air pollution

sources will not prevent or interfere with the attain-

ment and maintenance of such standards and goals,

and provides that the State has adequate personnel,

funding, and authority to carry out and enforce the

26 While the Senate bill provided for the Secretary of HEW to

exercise the Federal functions provided for therein, the bill enacted

in 1970 provided that the Administrator of EPA would exercise

those functions.

plan, including emergency powers comparable to sec-

tion 303 of the Clean Air Act.” (Emphasis added.)

The above quotation summarizes the Senate bill’s version

of the requirements specified in § 110(a) (2) of the Act.

Hence, the Senate Report confirms the plain meaning of

$110(a)(2) that EPA “shall approve” a State imple-

mentation plan that satisfies those requirements.

(e) H. Rept. No. 91-1146, 91st Cong., 2d Sess.

(1970), also affirmatively demonstrates that the Congress

meant what it said by the “shall approve” language in

§110(a) (2) of the Act. Under the House bill, after

establishment of the “national ambient air quality stand-

ards,” a State would “adopt a plan for the implementa-

tion (principally by prescribing appropriate emission

standards) and enforcement of such standards.” Id., at

2. If a State “does not adopt a plan or adopts a plan

which does not meet the statutory requirements,

the Secretary may publish proposed regulations setting

forth a State plan.” Ibid. Thus, “if the State adopts

such a plan [for the implementation, maintenance, and

enforcement of the standard], such plan will be applied

in such State, if the Secretary determines that—(1) the

State plan assures achieving such standard within a rea-

sonable time,” includes adequate enforcement authority

and provisions for intergovernmental cooperation, “and

(4) such plan contains adequate provision for revision

from time to time to take account of improved or more

expeditious methods of achieving the standards.” Id., at

7-8 (emphasis added). Only if the State does not adopt

an implementation plan which “meets [those] require-

ments” did the House bill authorize the proposal and

promulgation of Federal “regulations setting forth a plan

which would be applicable to such State.” Id., at 8.

(f) The Conference Report confirms that the “shall

approve” language of § 110 as reported and enacted was

intended to mean just that. In discussing that provision,

H. Rept. No. 91-1783, 91st Cong., 2d Sess. (1970), at 45,

states:

“Under the House bill after promulgation of a

national ambient air quality standard, each State was

to... adopt a plan to implement such standard (or

the more stringent State standard). The Adminis-

trator was to approve the plan if it assured achieve-

ment of the standard within a reasonable time and

contained adequate provision for State enforcement,

intergoverumental cooperation to attain standards,

and revision of the plan under specified circum-

stances.

“The House bill authorized the Administrator to

propose a plan applicable to any State, if it failed

to submit an acceptable plan within the allotted time

“Under the Senate amendment each State was to

. . adopt a plan to implement the national ambient

air quality standards (or the more stringent State

standards) and national ambient air quality goals.

The Administrator was required to approve the plan

if he found it provided for attainment of the stand-

ard within three years from the date of approval of

the plan....

“The conference substitute follows the Senate

amendment in establishing deadlines for implement-

ing primary ambient air quality standards but leaves

the States free to establish a reasonable time period

within which secondary ambient air quality stand-

ards will be implemented. (Emphasis added.)

(g) As the above quotation from the Conference Re-

port also indicates, the legislative history of the 1970

Amendments further demonstrates that the imposition of

“more stringent” standards or requirement was intended

to be left to the individual States. See pp. 35-37, supra.

For example, H. Rept. No. 91-1146, supra at 1, states

that the “States will be left free to establish stricter

standards for all or part of their geographic area.” And,

S. Rept. No. 91-1196, supra at 2, agrees that the “right

of the States to set more stringent standards of air qual-

ity has been preserved.” See, also, id., at 10, 15 and 56.

So, too, the legislative history demonstrates a congres-

sional intent to rely upon the new source performance

standards under § 111 of the Act for the Federal role

in minimizing deterioration of clean air. See pp. 37-38,

supra. “The purpose of this new authority” for the es-

tablishment of “Federal emission standards for new sta-

tionary sources” is “to prevent the occurrence anywhere

in the United States of significant new air pollution prob-

lems arising from such sources. H. Rept. No. 91-

1146, supra at 3. “Maintenance of existing high quality

air is assured through provision for maximum control of

new major pollution sources.” S. Rept. No. 91-1196,

supra at 2.

(h) The single passage in the Senate Report upon

which the Court of Appeals relied for its decision up-

holding the significant deterioration regulations comprises

one paragraph (about one-fourth of a page) of a Senate

Report that is about 129 pages long. No one has even

claimed that there is a comparable passage in the House

Report, in the Conference Report or in the extensive

floor debates that preceded enactment of the 1970 Amend-

ments. In contrast, when the Congress did in fact con-

sider whether or not the Act should be amended to in-

clude a significant deterioration provision, in the last

session of the Congress, the proposed amendment was

very controversial, and resulted in extensive discussion

in the committee reports and floor debates.** We think

Additional legislative history to the same effect is collected

in National Asphalt Pavement Ass'n v. Train, supra at 783.

28 See the Petition in No. 76-529, at 20-24.

it plain, therefore, that the single passage in the Senate

Report, which in itself is at least ambiguous, is much too

slim (if not nonexistent as) a foundation to support the

superstructure of the significant deterioration regula-

tions, 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. The Congress could not conceivably have treated

so lightly a purported requirement which, as EPA stated

in proposing the regulations (38 F.R. 18986; A. 94a),

“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 elec-

tricity and manufactured goods.” In any event, the leg-

islative history of the 1970 Amendments, demonstrating

that the Congress did in fact intend the “shall approve”

language in § 110 to mean what it says, leaves no rea-

sonable doubt about the matter.

7. Conclusion. The significant deterioration regula-

tions cannot be upheld unless the express language of

$110 of the Clean Air Act is disregarded. Under that

language, EPA “shall approve” State implementation

plans that meet the requirements specified in § 110(a)

(2), and EPA is authorized to promulgate regulations

amending such a plan only insofar as it is not “in ac-

cordance with“ those requirements. Those requirements

do not include the prevention of significant deterioration,

and no one has contended otherwise. We have shown

that there is no basis for disregarding that express stat-

utory language. It has been construed by this Court and

by EPA to be mandatory in fact as well as in form, and

the legislative history confirms that it was so intended

by the Congress. The significant deterioration regula-

tions also are inconsistent with other provisions of the

Act, and are not supported by the “protect and enhance”

purpose clause in § 101 (b) (1) of the Act.”

The conclusion that the significant deterioration regu-

lations are, therefore, invalid is consistent with reason

as well as with the statute. After all, the national pri-

mary ambient air quality standards are intended to be

fixed at levels “requisite to protect the public health”

after “allowing an adequate margin of safety,” and the

national secondary standards are intended to be set at

levels “requisite to protect the public welfare from any

known or anticipated adverse effects” from air pollution.

And further Federal protection of air quality is provided

by the new source performance standards, under which

a new stationary source of air pollution cannot be con-

structed or operated unless it uses the best available

system of emission controls that is economically feasible.

Surely, it was reasonable for the Congress in such cir-

cumstances to leave any further protection of air quality

2° The court below also relied to some extent by the “acceptance”

of the Ruckelshaus decision “in a number of other circuits.” See

A. 62a, n. 36, and the accompanying text. As an examination of

the opinions in most of the cases in the other circuits will disclose,

they simply referred to the Ruckelshaus decision without pur-

porting to make an independent judgment about the significant

deterioration issue. While there was some discussion in Natural

Resources Defense Council, Inc. v. Environmental Pro. Ag., 489 F.2d

390, 408 (5th Cir., 1974), which was reversed in what we have been

referring to as the Train case (421 U.S. 60), and in Natural Re-

sources Def. Coun., Inc. v. U.S. Environmental Pro. Agcy., 507

F.2d 905, 913-914 (9th Cir., 1974), the issue had not been briefed.

In the Fifth Circuit, the nondegradation issue was raised in the

petitioner’s brief in a short two-page argument which simply

stated that the issue had been settled by the Ruckelshaus decision,

and EPA did not respond to that argument. In the Ninth Circuit,

the issue was not even raised in the briefs of either party. In

any event, for the reasons stated herein, to the extent that the de-

cisions in other circuits provide any support for the decision below

in this case, those decisions also are erroneous.

to the option of individual States and localities, as in

fact was done by § 116 of the Act. While some States

or localities might prefer air of the highest purity for

esthetic or other reasons, other States or localities may

prefer to encourage economic development to the extent

consistent with the national primary and secondary

standards and the other substantive provisions of the

Clean Air Act. Leaving that decision to the option of

the individual States and localities simply conforms with

a policy of the Act which has existed from its outset,

and which continues to be asserted (in 101 (a) (3)):

“that the prevention and control of air pollution at its

source is the primary responsibility of States and local

governments.” But however that may be, the significant

deterioration regulations plainly conflict with the Clean

Air Act enacted by the Congress and should be held by

this Court to be invalid.

II. The Provisions in the Regulations for Reclassifying

Federal and Indian Lands Violate the Clean Air Act.

The significant deterioration regulations establish a

classification system under which the increments of par-

ticulate matter and sulfur dioxide that would be allowed

basically is related to the degree of economic growth or

development deemed to be desirable. In Class I areas,

practically any increase in those pollutants and thus eco-

nomic growth is prohibited; in Class II areas somewhat

greater increases are allowed, but significantly less than

would be allow.‘ by the national primary and secondary

standards; and in Class III areas, those pollutants and

economic growth could be increased to the level allowed

by the national standards. See pp. 11-13, supra.

While all areas throughout the country initially were

mlaced in Class ii, the regulations establish a reclassifi-

cation procedure. In general, a State may propose re-

classification of an area within its boundaries, based upon

its consideration of anticipated growth and the social,

environmental and economic effects thereof upon the area

and upon regional or national interests, subject to review

and approval by EPA. However, a Federal land manager

also may propose reclassification of Federal land under

his jurisdiction (to a “more restrictive designation”

only), and only the governing body of an Indian tribe

may propose reclassification of the tribe’s lands if the

State in which the lands are located does not exercise

jurisdiction over them under other laws. On the other

hand, private and municipal landowners have no right

to propose a reclassification of their lands, or to require

the State to consider doing so, or to obtain EPA review

if a State does not do so. See p. 12, supra. And, a

reclassification of Federal or Indian land will (if more

restrictive) govern the use of adjoining lands, up to 60

or 100 miles from the borders of the Federal or Indian

land, if by reason of wind drift the level of particulate

matter or sulfur dioxide in the air over the Federal or

Indian lands would be affected. See p. 11, supra.

There will be no need to reach the issues as to the

validity of those reclassification provisions if the Court

holds, as we urge in Part I of our Argument, that the

regulations are invalid in their entirety. For purposes

of this part of our Argument, therefore, we necessarily

assume a holding that EPA does have general authority

to issue regulations preventing significant deterioration.

We demonstrate below that, even so, the provisions for

reclassification of Federal and Indian lands are incon-

sistent with the Clean Air Act. And, although the ques-

tion does not appear to have been included in this Court’s

limited grant of certiorari, we also shall demonstrate

that the Court of Appeals erred in holding that the issue

as to the validity of the reclassification provisions is not

ripe for judicial review.

—— ar

1. The reclassification provisions are in derogation of

the primary responsibility of each State for assuring air

quality within its boundaries. The enactment of the 1970

Amendments to the Clean Air Act marked the beginning

of a substantial Federal role in establishing national

standards and requirements regarding air pollution, but

the primary responsibility for implementing the Federal

standards or requirements clearly was intended to re-

main with the individual States. See Train v. Natural

Resources Def. Council, supra at 64. Section 107(a) of

the amended Act provides that:

“Fach State shall have the primary responsibility

for assuring air quality within the entire geographic

area comprising such State by submitting an imple-

mentation 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.” (Emphasis added.)

That statutory delegation of responsibility expressly

extends throughout “the entire geographic area compris-

ing such State” without any exception being made—

either in § 107 or elsewhere in the Act—for either Fed-

eral or Indian lands. In accordance with the primary

responsibility thus delerated, it is an individual State

which has the authority under 5 110 (a) to design an

implementation plan, applicable to “each air quality con-

trol region (or portion thereof) within such State,” which

will satisfy the national standards and requirements in

the manner deemed most responsive to local needs and

conditions. Under § 110 (e), EPA can promulgate regu-

lations amending a State implementation plan only if,

and insofar as, the State fails to develop a plan which

adequately complies with the requirements of the Act,

and such regulations become part of a State plan or plans

rather than comprising an independent Federal imple-

mentation plan. See pp. 4-5, supra. And, it is only the

individual States and political subdivisions thereof that

are authorized by § 116 to impose air quality standards

and emission limitations that are more stringent than

those required by the Clean Air Act.

The legislative history of the 1970 Amendments dem-

onstrates that the Congress did not intend the responsi-

bility and authority delegated to the States by the text

of the Act to be a mere gesture. Thus, in discussing

provisions allowing Federal enforcement of implementa-

tion plans only as a supplement to State enforcement,

S. Rept. No. 91-1196, supra at 21, states that:

“The Clean Air Act as amended recognizes that

the primary responsibility for control of air pollution

rests with State and local government. While [the

section] would restructure the enforcement authority

available to the Secretary, the Committee does not

intend to diminish either the authority or the respon-

sibility of State and local governments.”

The continuing authority of the States to formulate the

means for achieving control of air pollution was also noted

and approved repeatedly in floor debate as, for instance,

when Sen. Cooper, the ranking minority member of the

committee which drafted the bill, noted that in formu-

lating implementation plans, “States and communities

must make economic decisions, and decisions on the future

growth of their areas and the kind of life they want, in

considering alternative means of achieving clean air.”

116 Cong. Rec. 32918 (1970).

In short, the 1970 Amendments “explicitly preserved

the principle” that each State should have the primary

% See also, e.g., id., at 33114-15 (Sen. Prouty) (“[I]t is the right

and duty of each State to develop its own plans to implement the

standards set by the Secretary.”); id., at 42520 (Rep. Staggers)

(“The States on the other hand will have primary responsibility

for the enforcement of State plans)

responsibility for assuring air quality within its boun-

daries. Hancock v. Train, supra at 169; Train v. Natural

Resources Def. Council, supra at 64. This latitude

given the States, within the general framework of the

Federal standards and time requirements, to design and

implement the actual air quality plans is essential to the

development of plans which will best respond to local

environmental and economic needs.“

Indeed, in proposing the significant deterioration regu-

lations, EPA itself acknowledged that the Act “places

primary responsibility for the prevention and control of

air pollution on the States and local governments” (39

F.R. 31001; A. 167a), and that (ibid.):

“Any policy to prevent significant deterioration in-

volves difficult questions regarding how the land in

any area is to be used. Traditionally, these land use

decisions have been considered the prerogative of

local and State governments... .”

31 See Washington v. General Motors Corp., 406 U.S. 109, 114, 115-

116 (1972) :

“Air pollution is, of course, one of the most notorious types of

public nuisance in modern experience. Congress has not, how-

ever, found a uniform, nationwide solution to all aspects of

this problem and, indeed, has declared ‘that the prevention and

control of air pollution at its source is the primary responsi-

bility of States and local governments.“ . 42 U.S.C. § 1857

(a) (3).

* * * *

G Jeophysieal characteristics which define local and regional

airsheds are often significant considerations in determining

the steps necessary to abate air pollution .... Thus, measures

which might be adequate to deal with pollution in a city such

as San Francisco, might be grossly inadequate in a city such as

Phoenix, where geographical and meteorological conditions trap

aerosols and particulates.

“As a matter of law as well as practical necessity corrective

remedies for air pollution, therefore, necessarily must be con-

sidered in the context of localized situations.”

But while EPA goes on to state (ibid.) that “in the regu-

lations promulgated herein, the primary opportunity for

making these decisions is reserved for the States and

local governments,” that plainly is not true insofar as

Federal land managers and the governing bodies of Indian

tribes are given independent authority to propose reclassi-

fication of lands under their respective jurisdictions, sub-

ject only to approval by EPA. This is emphasized by the

fact that a reclassification of Federal lands pursuant to

a proposal by a Federal land manager overrides any re-

classification of such lands pursuant to a State proposal

(40 C. F. R. § 52.21(c) (3) (iv)), and a State has no au-

thority to propose redesignation of Indian lands within

its boundaries as to which the governing body of an In-

dian tribe is given such authority.

Despite the responsibility and authority which a State

bears under §107(a) of the Act to assure air quality

within its boundaries, a State has no power even to re-

view a reclassification proposed by a Federal land mana-

ger or Indian governing body. Should a State object to

a reclassification proposed by one of those entities, its

only recourse is to protest to EPA, after which that

agency will determine if the reclassification “appropri-

ately balances” social, economic and environmental con-

cerns of that and surrounding areas and national inter-

ests. See pp. 12-13 supra. In sum, the States, whose

authority and responsibility to make air quality and land

use decisiciis in the development and enforcement of

$ 110 implementation plans were carefully preserved by

the Congress, have no primary role in the reclassifica-

tion decisions by Federal land managers and Indian gov-

erning bodies under the significant deterioration regula-

tions.

The States are largely excluded from those decisions

despite the fact that the effects of reclassifying Federal

or Indian lands extend far beyond the areas covered by

such lands. Reclassification of Federal or Indian lands

thus impairs the ability of a State to develop a coherent

air quality and land use plan for adjoining private and

State lands. The regulations explicitly provide that the

construction or modification of a new source covered by

the regulations will not be permitted if the effect of that

source on air quality concentrations will cause a viola-

tion either of the air quality increments applicable in the

immediate area or the increments applicable in any other

area. 40 C.F.R. § 52.21(d) (2) (i). EPA itself has em-

phasized the drastic effect of this provision:

“Calculations have shown that because of the small

air quality increments specified for Class I areas,

these levels can be violated by a source located many

miles inside an adjacent Class II or III area. For

example, a power plant which just meets the Class

II increment for SO, could under some conditions vio-

late the Class I increment for SO, 60 or more miles

away .... Therefore, wherever a Class I area ad-

joins a Class II or III area, the potential growth

restrictions, especially for power plant development,

extend well beyond the Class I boundaries into the

adjacent areas. A similar situation exists, to a greai-

er or lesser degree, wherever areas of different clas-

sification adjoin each other . . [I]t should be clear

that the Class II or III increment could only be fully

utilized toward the center of the area and that at

the periphery, allowable deterioration will be dictated

by the adjoining Class I area rather than the Class

II or III increment... .” 39 F. R. 42512; A. 218a-

219a.

EPA went on to state that the maximum distance at

which this “drift factor” would limit growth outside a

Class I area would be 60 to 100 miles. (39 F. R. 42513;

A. 219a-220a). The reclassification of Federal or Indian

lands, then, particularly to Class I, would limit pollutant

increases to the increments of that class, and thus dictate

growth and development, not only on those lands, but also

on adjacent State and private lands for many miles

around.

This nullification of the primary responsibility of each

State “for assuring air quality within the entire geo-

graphic area comprising such State” occurs in every

State in which any Federal or Indian land is located. Its

most pervasive effect, however, is in the western States

because of the widespread incidence of Federal and Indian

lands in such States, as is shown by the map attached as

Appendix C hereto. Indeed, the checkerboard pattern

which generally prevails in the distribution of Federal

lands in several western States results in most, if not

all, other lands being located less than the distance from

Federal or Indian lands in which the “drift factor“ may

be operative. The “primary responsibility” of those States

has been drained of virtually all substance, insofar as

classification of lands for purpose of the significant de-

terioration regulations is concerned, and decisions con-

cerning economic growth and development that are of

vital importance to the peoples of those States have been

handed over in large measure to Federal land managers

and the governing bodies of Indian tribes.

We think it obvious, therefore, that the provisions in

the regulations for the reclassification of Federal and

Indian lands are invalid, even if the Act is construed to

require the prevention of significant deterioration of air

that nonetheless will comply with the national primary

and secondary standards. Those provisions plainly are

incompatible with the Act’s delegation to the individual

States of primary authority to assure air quality within

the entire geographic area of the particular State. This

is particularly so since the regulations effectively deprive

a State of that primary authority not only in regard to

Federal and Indian lands, but also in regard to adjacent

State and private lands for a distance of up to 60 or more

miles from the boundaries of the Federal and Indian

lands.

2. The reciassification provisions arbitrarily discrimi-

nate against private and municipal landowners. As we

have noted, regulations promulgated by EPA under § 110

mentation plans. In effect, EPA acts as a surrogate for

a State insofar as the State fails to exercise its primary

authority to devise an implementation plan that meets

the requirements of the Act. But EPA has gone far

beyond that role in the reclassification provisions of the

significant deterioration regulations.

The only landowners or managers granted an independ-

ent right to propose reclassification of their lands are

Federal land managers and Indian governing bodies. No

private or municipal landowner or manager is given such

powers by the regulations and, indeed, the regulations do

not even provide any procedure by which those landown-

ers may suggest to the States that their lands be reclassi-

fied. And, if a State should refuse to consider or propose

reclassification of such lands, the private and municipal

landowners or managers have no right under the regula-

tions to have that refusal reviewed by EPA.

Neither § 110 (e) nor any other provision of the Clean

Air Act authorizes or requires such discrimination by a

State against its own private landowners and local gov-

ernmental units in favor of Federal and Indian landown-

ers or managers. Surely, it is most unlikely that a State

would voluntarily discriminate in that manner, and it is

virtually impossible that all of the States would do so.

Consequently, by incorporating such discriminatory provi-

sions in the implementation plans of all States, in the

exercise of its role as a surrogate for the States, EPA

has acted arbitrarily and capriciously even if its actions

in that regard were not contrary to express provisions of

the Act.

3. The provisions for reclassification of Federal lands

are inconsistent with § 118 of the Act and are without

any statutory basis. As revised by the 1970 Amendments,

§ 118 of the Act provides in part that:

“Each department, agency, and instrumentality of

the executive, legislative, and judicial branches of the

Federal Government (1) having jurisdiction over any

property or facility, or (2) engaged in any activity

resulting, or which may result, in the discharge of

air pollutants, shall comply with Federal, State, in-

terstate, and local requirements respecting control

and abatement of air pollution to the same extent

that any person is subject to such requirements.

(Emphasis added.)

Section 118 goes on to authorize the President to exempt

agencies in the executive branch from that requirement,

for periods of up to one year, in limited circumstances

that are not applicable here.

Section 118 is the only statutory provision cited by

EPA in attempting to justify its promulgation of the pro-

visions in the regulations authorizing Federal land mana-

gers to propose reclassification of Federal lands. EPA

stated (39 F.R. 42518; A. 222a) that:

“(T]he regulations have been revised to subject Fed-

eral lands to State redesignations but reserve to the

Federal Land Manager the authority to subject such

lands to a more stringent designation. This approach

is consistent with section 118 of the Clean Air Act

(42 U.S.C. 1857f) which requires that Federal agen-

cies having jurisdiction over any property or facility

meet substantive State air pollution control standards

and limitations. There is nothing in the Clean Air

Act or the legislative history of that Act that indi-

cates the Congress intended to preclude the Federal

Government from meeting more restrictive standards

than are imposed by the States. This provision also

ensures that national forests and parks can be pro-

tected by the Federal Government from deterioration

of air quality... .”

On its face, this comment does not even purport to

claim that the provisions are authorized by § 118, but

merely that they are “consistent” with that section.

But the special powers given Federal land managers are,

in fact, wholly inconsistent with § 118. That section was

not intended to afford a grant of power to Federal agen-

cies, but rather to be a restraint directing “that all Fed-

eral agencies shall comply with the requirements of the

Act just as a nonfederal agency or individual must do in

the administration of any real property or facility and in

the conduct of any activity.” S. Rept. No. 91-1196, supra

at 59. While the decision in Hancock v. Train, supra, held

that § 118 did not submit Federal agencies to State per-

mit requirements, it recognized that the “parties rightly

agree that § 118 obligates Federal installations to von-

form to State air pollution standards or limitations and

compliance schedules.” 426 U.S., at 181.

Far from serving as a source of authority for Federal

land managers to adopt substantive standards which will

control activities on State and private lands, § 118 thus

stands for the priaciple that individual Federal entities

have no greater statutory power to set substantive stand-

arus for air quality than any private landowner does.

EPA’s comment that the Act does not preclude the Fed-

eral Government from meeting more restrictive standards

is quite beside the point. Even without any authority in

these regulations, the Federal Government could adopt re-

strictive policies designed to enhance air quality on its

lands, in the exercise of its proprietary powers over those

lands.” The regulations, however, are far more than

merely declaratory of the Federal Government’s proprie-

We note, however, that neither § 118 nor any other provision of

the Clean Air Act purports to give EPA any supervisory authority

over actions by other Federal agencies in that regard.

tary powers over its lands. They grant the Federal land

managers affirmative powers over the use of private and

State land nowhere envisioned by the Act. See pp. 63-65,

supra.

EPA also suggested in its explanatory comment that

the provision in question “ensures that national forests

and parks can be protected by the Federal Government

from deterioration of air quality.”** But here again,

such reclassification authority is not necessary insofar as

the use of such Federal lands are concerned, as the Gov-

ernment can limit or preclude such use in the exercise of

its proprietary authority. Moreover, each State’s responsi-

bility under § 107 (a) of the Act to assure air quality

within “the entire geographic area comprising such State”

includes air quality in national parks and forests located

within the State. And, the provisions of the regulations

governing State-proposed reclassifications require con-

sideration of “any impacts of such proposed redesigna-

tion upon regional or national interests.” See p. 12, supra.

In any event, the reclassification powers granted to

Federal land managers and Indian governing bodies can

be exercised on the basis of considerations unrelated to

air quality effects. They need consider only anticipated

growth in the area, and the social, economic and en-

vironmental effects of such growth upon that and other

areas and upon regional and national interests. See pp.

12-13, supra. These considerations permit reclassifica-

tion of Federal and Indian lands without identification

of any adverse air quality effects that otherwise could

or would result. Since the Federal Government can pre-

vent construction of any new sources of pollution upon

its own lands, entirely apart from this reclassification

The makeweight nature of that suggestion is indicated by the

fact that the reclassification provisions apply to all Federal lands,

and thus are not limited to national parks and forests.

authority, the practical purpose and effect of such a

reclassification must be to prevent or limit construction

of new sources on adjacent private or State lands which

the reclassification also would interdict by reason of the

“drift factor” for as much as 60 or 100 miles distant.

And, this could be done, not because of some demonstr-

able adverse effect upon air quality over the Federal

lands, but because the Federal land manager is opposed

to anticipated growth in the adjoining areas. In short,

this aspect of the regulations transforms the Act into

an instrument for Federal control over local growth and

development on non-Federal lands, rather than being

necessary to prevent deterioration of air quality in Fed-

eral parks or national forests.

For these reasons, we submit that §118 of the Act

is not consistent with the reclassification authority con-

ferred by the regulations upon Federal land managers,

but rather is inconsistent with that authority, and that

the other justifications suggested by EPA are equally

unpersuasive. *

4. The provisions for reclassification of Indian lands

do not have any statutory basis. In promulgating the

regulations, EPA did not refer to any statutory authority

for the provisions regarding reclassification of Indian

lands by Indian governing bodies. Those provisions were

derived from a misconception of the relationship among

Indian tribes, the States and the Federal Government.

EPA explained that they were drawn so as not to alter

existing relationships between Indians and the State and

were “consistent with the independent status of Indian

lands not subject to State laws” (39 F.R. 42513; A.

223a).

EPA’s assumption that the status of Indian lands would

preclude the exercise of State authority over them under

the significant deterioration regulations is totally unwar-

ranted. Allowing State control of classification of Indian

lands under the regulations would not represent an in-

dependent assumption of State jurisdiction over Indian

lands condemned by cases such as McClanahan v. Arizona

State Tax Comm’n, 411 U.S. 164 (1973), but rather

would be to fulfill the State’s duty under § 107 (a) of

the Clean Air Act to assure air quality within its “entire

geographic area.” It is well settled that such a general

Act of Congress applies to Indians and their lands, “in

the absence of a clear expression to the contrary... .”

F. P. C. v. Tuscarora Indian Nation, 362 U.S. 99, 120

(1960). See, e.g., Squire v. Capoeman, 351 US. 1

(1956). In short, Congress, which has plenary powers

over Indian lands, Antoine v. Washington, 420 U.S. 194,

203-204 (1975), has permitted, indeed required, the States

to exercise over Indian lands the regulatory powers which

the EPA would deny them.

Since the powers granted by these regulations to Fed-

eral land managers and Indian governing bodies are

completely without a statutory basis and are directly in

conflict with the primary role given to the States in im-

plementing the Clean Air Act, this Court should hold

those portions of the regulations to be invalid even if it

upholds the remainder of the regulations.

5. These issues are ripe for judicial review. Although

the Court of Appeals did not pass upon the merits of the

reclassification provisions, holding instead that issues go-

ing to the validity of those provisions were not ripe for

judicial review, we are not at all certain that the Court

desires briefing or argument of the ripeness question.

That question does not appear to be “fairly comprised”

within the question which the Court itself stated in its

limited grant of certiorari (A. 292a): “whether the Clean

Air Act permits the Environmental Protection Agency to

adopt regulations which grant to federal land managers

and Indian governing bodies power to reclassify federal

and Indian lands within their jurisdiction.” See Supreme

Court Rules 23-1(c) and 40-1(d)(1) and (2). Thus, the

Court may have concluded already that the ripeness hold-

ing by the court below is erroneous, so as to desire argu-

ments only on the merits of the reclassification provisions.

But since we are not certain that that is true, we shall

demonstrate why the ripeness holding is erroneous.

The Court of Appeals concluded that the reclassification

provisions were not ripe for review because no Federal

or Indian lands had yet been redesignated and the mere

“reservation of power to federal land managers and In-

dian governing bodies should have no effect on present

conduct” (see pp. 15-16, swpra).** But the arbitrary dis-

crimination against private landowners and managers,

who are not allowed to propose reclassifications, exists re-

gardless of whether Federal land managers or Indian

governing bodies exercise the powers which they have

been granted. More significantly, perhaps, the mere ex-

istence of those powers may affect “present conduct” of

petitioners and others.

Under the reclassification provisions as interpreted and

applied by EPA, an electric generating utility or other

company contemplating new construction on lands ad-

jacent to Federal or Indian lands cannot safely base its

*The Court of Appeals also adverted to the theoretical possi-

bility that EPA might approve substitute State plans that would not

include the powers granted to Federal land managers and Indian

governing bodies. That possibility also existed in regard to other

provisions of the regulations which the Court of Appeals did re-

view on the merits, and it is always theoretically possible that an

agency will replace allegedly invalid regulations at some indefinite

future time. If such a possibility made issues as to the validity

of the regulations unripe, such regulations could never be reviewed

except in the context of an actual application thereof - ch clearly

is not the law. See, e.g., United States v. Storer Broadcasting Co.,

351 U.S. 192, 199-200 (1956); Frozen Food Ezp. v. United States,

351 U.S. 40, 43-45 (1956); Columbia System v. United States, 316

U.S. 407, 418-419 (1942).

plans upon the existing classification of those lands. If

a Federal land manager or Indian governing body merely

announces that it is considering proposing a reclassifica-

tion, both pending and future applications for permis-

sion to construct a new source will not be granted until

EPA has acted upon the reclassification proposal and

will be subject to the incremental limits applicable under

the revised classification if the proposal is approved.

See p. 13, supra. Thus, when Montana Power Company

and four associated petitioners applied for a permit to

build two additional units at their Colstrip, Montana,

electric generating complex, EPA stated that it could not

take final action upon the application, even though the

units would not violate Class II standards for the area,

until it has passed upon a proposal by the Northern

Cheyenne Indian Tribe to reclassify its neighboring

reservation to Class I.“

In these circumstances, where the mere existence of a

regulation means that a business “cannot cogently plan

its present or future operations,” United States v. Storer

Broadcasting Co., supra at 200, issues as to the validity

of the regulations plainly are ripe for review. As long

ago as Euclid v. Ambler Co., 272 U.S. 365 (1926), this

Court held that judicial review is appropriate when the

existence of a government regulation disrupts a party’s

planning for future development of property. This is

particularly so where “the fitness of the issues for judicial

See the September 16, 1976 public notice reproduced in Ap-

pendix B hereto. In subsequent judicial proceedings, the utilities

obtained a declaratory judgment that the units are not subject to

preconstruction review under the regulations because they had

“commenced construction” on or before June 1, 1975 within the

meaning of 40 C. F. R. §52.21(b) (7). Montana Power Co., et al. v.

Environmental Protection Agency, et al., 9 ERC 2096 (D. Mont.,

January 27, 1977). That decision has been appealed. EPA has

since proposeſd] for public comment approval of” the reclas-

sification of the Northern Cheyenne reservation. 42 F.R. 21819

(April 29, 1977).

decision,” as well as “the hardship to the parties of

withholding court consideration,” is apparent. Abbott

Laboratories v. Gardner, 387 U.S. 136, 149 (1967). The

question of whether the reclassification provisions violate

the Clean Air Act raises a pure question of law and is

sharply focussed. Neither in its promulgation of those pro-

visions nor in its defense of them below has EPA sug-

gested that their validity rests on factual rather than

legal judgments. Since further development of a factual

record is not necessary to illuminate consideration of the

legal issues, those issues are fit for judicial decision

at this time. Compare Toilet Goods Assn. v. Gardner,

387 U.S. 158, 163-164 (1967), with Gardner v. Toilet

Goods Assn., 387 U.S. 167, 171 (1967), and Abbott

Laboratories v. Gardner, supra at 149.

Even if the ripeness issue were doubtful, judicial re-

view at this time would be warranted by the Clean Air

Act’s special provisions for judicial review. The signifi-

cant deterioration regulations were promulgated as

amendments to the State implementation plans, and re-

view of them must accordingly be had under § 307(b) (1)

of the Act, 42 U.S.C. § 1857h-5(b) (1), which provides

that:

“A petition for review of the Administrator’s action

in... promulgating any implementation plan under

section 110 . . . may be filed only in the United

States Court of Appeals for the appropriate circuit.

Any such petition shall be filed within 30 days from

the date of such promulgation, . . . or after such

date if such petition is based solely on grounds aris-

ing after such 30th day.”

Congress adopted the provisions of § 307(b) (1) limiting

the forum and time period for judicial review in order

to assure that while judicial review of administrative ac-

tions which “would clearly affect the interests of per-

sons” would be available, it would be possible only “with-

in controlled time periods” so as “to maintain the in-

tegrity of the time sequences provided throughout the

Act.. . S. Rept. 91-1196, supra at 40-41. See also,

116 Cong. Rec. 33117 (1970) (Sen. Cooper).

The issues regarding the validity of the reclassification

provisions are purely issues of law and came into exist-

ence when those regulations were promulgated. Hence,

petitions challenging those provisions come within the

requirement in § 307(b)(1) that they “shall be filed

within 30 days from the date of such promulgation,” as

in fact was done. In Buckley v. Valeo, 424 U.S. 1, 117

(1976), this Court recognized that the ripeness doctrine

must be applied in the light of the Congressional purpose

in enacting a special jurisdictional statute providing for

expedited judicial review, and held that it therefore was

“warranted in considering all . . . aspects of the Com-

mission’s authority which have been presented by the

certified questions.”

To give considerable weight in this manner to an ex-

pedited review statute does not undercut the ripeness

doctrine; it merely indicates that, when Congress has

determined that the administrative scheme would best be

served by early and definitive judicial review, one of the

principal rationales for the ripeness doctrine, that of

protecting administrative agencies from premature judi-

cial intervention, see Abbott Laboratories v. Gardner,

supra at 148, is inapposite. Here too, Congress, in enact-

ing § 307 of the Clean Air Act, was evidently concerned

to have questions about the legality of regulations and

implementation plans settled as expeditiously as possible

in order to achieve the Clean Air Act’s goal of requiring

States “to attain air quality of specified standards, and

to do so within a specified period of time.” Train v.

Natural Resources Def. Council, Inc., supra at 64-65

(1975). To further that Congressional purpose, this

Court should proceed to review the provisions concerning

Federal land managers and Indian governing bodies at

this point.

There is even a more pressing need for judicial review

at this time in the present case than in Buckley. Not only

will judicial review at this point help fulfill the Congres-

sional purpose, but it is also necessary if petitioners are

to have any opportunity to challenge EPA’s authority to

impose these provisions, a problem not present in Buck-

ley.° By providing that a petition to review a State im-

plementation plan may be filed “only” in the appropriate

Court of Appeals, and “shall” be filed within 30 days of

promulgation of the plan, § 307(b) establishes the exclu-

sive method for judicial review of the plans, as every

Court of Appeals which has considered the question has

held.“ After the 30-day period allotted for filing a peti-

tion for review has passed, a petition for review may be

filed “only if the petition is ‘based solely on grounds aris-

ing after such 30th day.’” Union Electric Co. v. EPA,

supra at 253 (emphasis added).

In short, to apply the ripeness doctrine to prevent re-

view in this proceeding is not merely to defer review,

but to preclude it entirely. Such an application of the

doctrine is not countenanced by the decision in Toilet

Goods Association, Inc. v. Gardner, supra at 165, where

this Court held the point at issue not ripe for review

Unlike § 307 of the Clean Air Act, § 315 of the Federal Election

Campaign Act of 1971, under which review was sought in Buckley,

does not have a 30-day limitation period, nor does it preclude review

under other bases of jurisdiction, such as 28 U.S.C. § 1331.

* Friends of the Earth v. Carey, —— F.2d ——-, 9 ERC 1641, 1648

(2d Cir., 1977); District of Columbia v. Train, U.S. App. D.C.

——, 533 F.2d 1250, 1254 (1976); City of Highland Park v.

Train, 519 F.2d 681, 688-689 (7th Cir., 1975), cert. den., 424

U.S. 927 (1976); Plan for Arcadia, Inc. v. Anita Associates, 501

F.2d 390, 392 (9th Cir., 1974), cert. den., 419 U.S. 1034 (1974);

Getty Oil Company (Eastern Operations) v. Ruckelshaus, 467 F.2d

349 (3d Cir., 1972), cert. den., 409 U.S. 1125 (1973).

only after assuring itself that the application of the

regulations could later “be promptly challenged through

an ad

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.