Petitioners Brief — Mont. Power Co. v. U.S.E.P.A.
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IN THE
Supreme Court of the United States
Ocroper TERM, 1976
No. 76-529
Montana PowER ComMPANny, ET AL., Petitioners,
Vv.
Unrrep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-585
AMERICAN PETROLEUM INSTITUTE, ET AL., Petitioners,
v.
Unirep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-594
InpIANA-KENTUCKY ELEcTRIC CORPORATION, ET AL., Petitioners,
Vv.
Unirep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-603
ALABAMA PowER CoMPANY, ET AL., Petitioners,
v.
Unirep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-619
Utan Power & Ligut Company, Et AL., Petitioners,
v.
Untrep StaTes ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-620
WESTERN ENERGY SupPLy AND TRANSMISSION ASSOCIATES, ET AL.,
Petitioners,
v.
Untrep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
BRIEF FOR THE PETITIONERS IN NO. 76-619
On Writs Of Certiorari To The United States Court Of Appeals
For The District Of Columbia Circuit
(Counse] listed on inside cover)
Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.
COUNSEL FOR PETITIONERS
Uran Power & Liant Company
Pusuic Service Company or CoLoRapo
Coiorapo-Urr Exvecrric Association, INo.
Puattse River Power AvuTHORITY
CHEYENNE Ligut, Fvet aNp Power CoMPANY
Gerry LEVENBERG Uran Power & Ligut Company
Tuomas A; Karon
Sioney G. Bavoom
Leonarp, COHEN AND GerTINGs Vert R, TopHam
1700 Pennsylvania Avenue, N.W.
Washington, D. C, 20006 P. O, Box 899
Salt Lake City, Utah 84110
Pusuio Service Company or CoLorapo
CHEYENNE Lieut, Fue, AND Power CoMPANY
Bryant O'DONNELL Piatre River Power AvuTHorRITY
Key, Stansrrevp & O’DonNeLL Moses, Wirremyver and Harrison, P.C.
550 Fifteenth Street 250 Arapahoe Avenue
Denver, Colorado 80202 Boulder, Colorado 80302
Covorapo-Ure Eiecrric Association, IN.
Gmts KruMins
P.O. Box 1149
Montrose, Colorado 81401
Page
a i ee a 2
i no. otek ood ee ah beet haxwaleeesdes 2
STATUTE AND REGULATIONS INVOLVED ............0005. 2
EE accu cechacechcasepeessiaeeees 2
ee ee oe cenceeeeseeseets 3
ie nn nnn. nce bu ceneseeeee 3
B. History of the Proceedings ................. 5
C. Prevention of Significant Deterioration Regu-
ite ee ee he ed i es neds 9
SuMMARY OF ARGUMENT ............. SRP Perens 10
Te tee eae ei in one eddies ecannesés 13
I,
A. Section 110 Requires The Administrator To
Approve State Implementation Plans That
Satisfy The Section’s Kight Requirements
Even Though The Plans Do Not Contain A
Nondeterioration Policy ...............5. 13
B. The Prevention Of Significant Deterioration
Regulations Are Inconsistent With Other
Provisions Of The Clean Air Act ........ 18
C. The Legislative History Of The Clean Air
Act Does Not Support The Significant De-
terioration Regulations .................. 22
Il.
A. Th Provisions Violate The
} Wie Act nsofar As They Authorize
Federal Land Managers and Indian Govern-
ing Bodies To Redesignate Federal And In-
dian Lands Snipentions ¢ Of State Control... 34
1. The Redesignation Provisions .......... 34
ii
2.
Index Continued
Page
The Clean Air Act my vend Grants The
States The Primary Responsibility For
Controlling Air Quality Throughout
Their Entire Geographic Areas ........
Cee, og cccccccecesecdsucceececaneoeneeneren 45
pw. & PPPPPTrTTTTTTTTrirr itt la
Bes DD noc ccccccvccevcctedeecdetelseberseaess 12a
Dem ED Cg oc éc.ceue0004t6od0e ee ceseuseeeecseesns 13a
TABLE OF AUTHORITIES
Cases: Page
Adkins v. Arnold, 235 U.S, 417 (1914) .........eeeeee 16
Eaton v. Price, 364 U.S. 263 (1960) (opinion of Bren-
BOM, Je) ccccccvvcccovcccvccesecccccccccevcsess 6
Escoe v. Zerbst, 295 U.S. 490 (1935) .........--eeees 14
Federal Power Com’s. v. Tuscarora, 362 U.S. 99 (1960) 39
Fourgo Glass Co. v. Transmirra Products Corp., 353
US. BRS (IDET). vccccccdceccscccccvccetovoccoes 15
Ginsberg & Sons v. Popkin, 285 U.S. 204 (1932) ...... 15
Hancock v. Train, 426 U.S. 167 (1976) ....12, 13, 14, 37, 38
Haynes v. United States 390 U.S. 85 (1968) Saare
Jarecki v. G. D. Searle & Co., 367 U.S. 303 (1961) .... 17
MacEvoy Co. v. United States, 322 U.S. 102 (1944) .. ae
National Asphalt Pavement Association v. Train, 539
F.2d 178 (D.C, Cir. 1976) ...ccccccccccscccccees 20
Richards v. United States, 369 U.S. 1 (1962) ........ 16
met 58) Motor Co. v. United States, 281 U.S. 528 “
Sierta Club v. Ruckelshaus, 344 F.Supp. 253 (D.D.C.
1972), 4 E.R.C. 1815 (per cond by Sapp i ah in
U.S. App. D.C. and F.2d), equally di-
vided ed sub nom Pre 4 serve Py Stub 412 U.S.
BER CRGTE) on ccccccccccccccccccbvcscesscsecces 6, 7
Train v. Natural Resources Def. Council, 421 U.S. 60
CEE oo cng vdducusesdausununes 9, 12 14, 17, 19, 31, 36
Union Electric Co. v. EPA, 427 U.S. 246 (1976) ....9, 3
Table of Authovities Continued iii
Cases: (cont.) Page
United States v. Moore, 95 U.S, 760 (1878) .
United States v. Oregon, 366 US. 649 (1961) 1... ae
United States v. Pink, 315 U.S. 203 (1942) .......... 6
STaTUTEs :
Clean Air Act of 1963, 77 Stat. 392 ...............0.. 24
1967 Air Quality Act, 81 Stat. 485 . ..15, 16, 24, 25, 26, 27, 28
Clean Air Act, as amended
42 U.S.C. § 1857(a)(3), §101(a)(3) ..11, 22, 37, 38, 39
42 U.S.C, §1857(b)(1), 101¢byc1> , 11, 12, 15, 16, 17,
42 USC. § 1857-2 SESE ae 21, 24, al
t 10 f
a HR fame ti) i in
42 U.S.C. § 1857¢-3(a), § 108(2) ARRAS: 97
42 U.S.C. § 1857e-B(a)(1), § 108(a)(1) iat aes 10
42 U.S.C. § 1857¢-3(a)(1)(B)-(C),
$1 08(a)(1)(B)- 0) aaa i. SE 16
42 U.S.C. §1857c-4, $109 .................0000) 10, 16
42 US.C. $ 188T0-4(8 §,109(a) pet oe erp 3
, §109(b)(1) ...... 3, 16,
42 U.S.C. § 1857¢-4(b) (2), g soptbs (a) aaah § 3, ie >
42 U.S.C. §1957c-5, §110'...... 11, 12, 15, 16, 17, 18, 33
42 U.S.C. § 1857¢-5(a)(1), §110(a)(1) .....-.. 4,17
42 U.S.C. § 1857e-5(a) (2), $110(8)(2) | is 4, 5, 12, 13,
23, 31,
Scio eeeeaaene
42 VEU AL ED, oo eee eve eeees 4,5, 11, 13, 17
x a a 19
42 U.S.C, § 188 76-5(e)(1), §110(c)(1) .......... 5, 18
42 U.S.C. §1857¢-6, $111 ............... 11, 19, 20, 21
42 U.S.C. $ 1857-6(a} (1), § 111(a)(1) Wie mais "90
42 U.S.C. § 1857¢-6(b)(1)(A),
‘i teen ayia) big oo iB b6 68's 11
WF ig 1
42 U.S.C. §1857f,§118............ 0 eS oT
Energy Suppl i inati
7a eee
iv Table of Authorities Continued
REeGuLATIONS : nh
40 CLFLR. Part 50 20... cece cece eee reer eeeeennenes ;
40 CLFLR. Part SL on. cece cece cece cree errr eeeennnes :
40 C.FLR. §51.12(b) onc. cece cece eee eeeeeeerneees :
40 C.F.R, 2 Sal Mere ey Po .*
40 CPLR. $52.21 ....cce cece cece ceccerrevncveeeees }
40 C.FLR. §52.21(e)(1) cece cecece cece eeeeenennees :
40 C.F.R. rts peecc.cee our eaee Gee Z
40 C.F.R. §52.21(¢)(3) ceeceeeeeeereeeeerreeceeees :
40 C.F.R, alte (B)(i) scceeeeceeeeneeererers a
40 C.F.R. §52.21(¢)(3)(il) cess cece ener reer ee eees ‘
40 C.F.R. § 52.21(¢)(3)(ii1) -- eee ee ee eee errr renee i
40 C.FLR. § 52.21(¢)(3) (iv) cece eee reece eee e eens go
40 C.FLR. § 52.21(¢) (3) (Vv) cece eee e eee teen ee eens , os
40 C.F.R. § 52.21(¢)(3)(v)(D) - eee e rere reece ee eees ro
40 C.F.R. rt (Vi) veececrereeereneeeeeress =
40 C.F.R. §2.21(¢)(3)(vi)(a)(3) voccéeeeenedeneuen 4
40 C.F.R, ce ae conn eenbousseeeenaneen =
40 CUFLR. $52.3843 ...ccce cece cecrcvcccveccvsecvess =
40 C.FLR. § 52.683 2... ccc cece eee e ee ee er eneeeeees .
40 C.FLR. § 52.2846 0... cece cece eee rece eeeennnees Z
40 ch a eeeeeree re Te ..
C.F.R. Part GO ......ccccceccccrsvecccrcvcvcceee
36 Fed. Reg. 8186 (April 30, 1971) ..--- sees eeeeees |
36 Fed. Reg. 22398 (November 25, 1971) ...---+++++ ;
37 Fed. Reg. 23836 (November 9, 1972) ....--++++++ :
88 Fed. Reg. 18986 (July 16, 1973) .....-..+ seen sa as
39 Fed. Reg. 31000 (August 27, 1974) .....-+-.05. no Me
39 Fed. Reg. 42510 (December 5, 1974) .....-- 8, 37, 39, ;
40 Fed. Reg. 2802 (January 16, 1975) ....--.seeeee: :
40 Fed. Reg. 25004 (Jume 12, 1975) .....---eee evens :
40 Fed. Reg. 42001 ( September 2G 2BTG) .ncccccces .
42 Fed. Reg. 21819 (April 29, 1977) .....s0seeeeeees
ConGRESsIONAL MATERIALS:
S. Rep. No. 403, 90th Cong., Ist Sess. (1967) ...cc00 25, 27
H.R. Rep. No. 728, 90th Cong., 1st Sess. (1967) ...... 25
ELR. Rep. No, 91-1146, 91st Cong., 2d Sess. (1970) ..21, 33
S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) 21, 30, 32, 33
H.R. Rep. No. 91-1783, 91st Cong., 2d Sess. (1970) ... 33
113 Cong. Rec. 19172 (July 18, 1967) «..---+eeeeeeees 27
Table of Authorities Continued
Vv
Page
Hearings on Implementation of Clean Air Act Amend-
ment of 1970 Before the Subcommittee on Air and
Water Pollution of the Senate Public Works Com-
mittee, 92d Cong., 2d Sess. Part 1 (1972) ........ 5, 6
Air Pollution—1970, Hearings before the Subcommittee
on Public Works, Part I (1970) ................ 29
MISCELLANEOUS:
Letter from Governor Ed Herschler to Mr. Allen Row-
land, President, Northern Cheyenne Tribe (Jan.
Re ie inate ccs6k ous cc ceccceccces 44
‘Technical Support Document—EPA Regulations for
Preventing the Significant Deterioration of Air
Quality,”” January 1975 ...................... 40, 41
United States Department of Interior, Bureau of Indian
Affairs, Annual Report of Indian Lands, Acreage
as of September 30, 1976 (to be published) ...... 41
United States Department of Interior, Federal Lands
Map
United States Department of Interior, Bureau of
Land Management, Public Land Statistics (1975). 41
IN THE
Supreme Court of the United States
Ocroser Term, 1976
No. 76-529
Montana Power Company, Ef AL., Petitioners,
v.
Untrep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-585
AMERICAN PeErRoLEUM INSTITUTE, ET AL., Petitioners,
v.
Unirep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-594
InpiaANA-KENTUCKY ELEcTRIC CoRPORATION, ET AL., Petitioners,
v.
Unirep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-603
ALABAMA PowER CoMPANY, ET AL., Petitioners,
v.
Unrrep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-619
Uran Power & Ligut Company, Et AL., Petitioners,
Vv.
Untrep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 76-620
WeEsTERN ENERGY SupPLY AND TRANSMISSION ASSOCIATES, ET AL.,
Petitioners,
v.
Untrep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.
BRIEF FOR THE PETITIONERS IN NO. 76-619
On Writs Of Certiorari To The United States Court Of Appeals
For The District Of Columbia Circuit
2
The opinion of the Court of Appeals (A. 39a-90a)’
is reported at 540 F.2d 1114.
The judgment of the Court of Appeals (Pet. No. 16-
529, App. 91a) was entered on August 2, 1976. This
petition was filed November 1, 1976, and was granted
April 4, 1977.* The jurisdiction of this Court is in-
voked under 28 U.S.C. §1254(1).
STATUTE AND REGULATIONS INVOLVED
The pertinent statutory provisions are set forth in
Appendix A, infra. The regulations are set forth in the
joint appendix, A.206a-291a.
QUESTIONS PRESENTED
1. Whether regulations promulgated by the En-
vironmental Protection Agency to prevent the signifi-
cant deterioration of air quality are authorized by the
Clean Air Act.
2. Whether the Clean Air Act permits the Envir-
onmental Protection Ageney to adopt regulations
which grant to Federal land managers and Indian
governing bodies power to reclassify Federal and In-
dian lands within their jurisdiction.
1 References to the joint appendix filed with this Court pursuant
to Rule 36 will be denoted ‘‘A.’’.
*The Co in granting certiorari, consolidated this petition
with other p> 5. Nos. 76-529, 76-585, 76-594, 76-603, and 76-
620.
3
STATEMENT
A. The Clean Air Act.
As amended in 1970, the Clean Air Act, 84 Stat.
1676, prescribes a comprehensive regulatory scheme
for reducing emissions of certain pollutants into the
ambient air. While the Act grants federal authorities
certain powers of supervision and enforcement, it re-
serves to each State the ‘‘primary responsibility for
assuring air quality within the entire geographic area
eomprising such State.’ § 107(a).’
Section 108 directs the Administrator of the Envir-
onmental Protection Agency (EPA) to list certain air
pollutants, and thereafter issue air quality criteria
for such air pollutants. For those air pollutants, § 109
(a) requires the Administrator to prescribe a national
primary ambient air quality standard and a national
secondary ambient air quality standard. National pri-
mary ambient air quality standards are ‘‘ambient air
quality standards the attainment and maintenance of
which in the judgment of the Administrator . . . allow-
ing an adequate margin of safety, are requisite to pro-
tect the public health.’’ §109(b)(1). A national sec-
ondary ambient air quality standard is ‘‘a level of air
quality the attainment and maintenance of which in
the judgment of the Administrator . . . is requisite to
protect the public welfare from any known or antici-
pated adverse effects associated with the presence”’ of
the particular air pollutant in the ambient air. § 109
(b) (2).
* Section references to the Act are used in the text; cross ref-
erences to the United State; Code citations appear in the Appendix,
infra.
4
Each State is required to submit to the Administra-
tor a ‘‘plan which provides for implementation, main-
tenance, and enforcement”’ of the national ambient air
quality standards. § 110(a)(1). Section 110(a) (2) ex-
plicitly provides that the Administrator ‘“‘shall ap-
prove’’ each submitted State plan, adopted after rea-
sonable notice and hearing, which meets the following
eight specified criteria:
(A) (i) In the case of a plan implementing a
national primary ambient air quality standard,
it provides for the attainment of such primary
standard as expeditiously as practicable but...
in no case later than three years from the date of
re of such plan ... and (ii) in the case
of a plan implementing a national secondary am-
bient air quality standard it specifies a reasonable
time at which such secondary standard will be at-
tained ;
(B) it includes emission limitation . . . and such
other measures as may be necessary to insure at-
tainment and maintenance of such primary or
secondary standard .. .
(C) it includes provision for establishment and
operation of appropriate ... procedures necessary
to (i) monitor, compile, and analyze data on am-
bient air quality ...
(D) it includes a procedure . . . for review...
of the location of new sources...
(E) it contains adequate provisions for inter-
governmental cooperation ...
(F) it provides (i) necessary assurances that
the State will have adequate personnel, funding,
and authority to carry out such implementation
plan, (ii) requirements for installation of equip-
ment ... (iii) for periodic reports...
5
(G) it provides ... for periodic inspection and
testing of motor vehicles... and
(H) it provides for revision . . . as may be nec-
essary to take account of revisions of such nation-
al primary or secondary ambient air quality stand-
we .. . §110(a) (2) (A)-().
If the State implementation plan does not meet these
requirements, the Administrator is required to disap-
prove the plan and prepare regulations setting forth
the implementation plan for the State. §110(¢) (1).
B. History of the Proceedings.
On April 30, 1971, the Administrator promulgated
national primary and secondary ambient air quality
standards. 36 Fed. Reg. 8186, 40 C.F.R. Part 50. Under
the timetable set by the Act, the States were then re-
quired to submit to the Administrator their imple-
mentation plans by January 31, 1972, and the Admin-
istrator was required to approve or disapprove these
plans by May 31, 1972.
On November 25, 1971, the EPA published ‘‘Re-
quirements for Preparation, Adoption and Submittal
of Implementation Plans.’’ 36 Fed. Reg. 22398, 40
C.F.R. Part 51. In areas where the air quality was
superior to national primary and secondary standards
those requirements permitted implementation plans to
allow for emissions into the ambient air up to second-
ary standards, 40 C.F.R. § 51.12(b). In February, 1972,
Administrator Ruckelshaus testified before a Congres-
sional Subcommittee that he would approve any State
implementation plan that met the eight specified cri-
teria of §110(a) (2), none of which required the pre-
vention of significant deterioration. Hearings on Im-
6
plementation of Clean Air Act Amendments of 1970
Before the Subcommittee on Air and Water Pollution
of the Senate Public Works Committee, 92d Cong., 2d
Sess. Part 1, 246-249, 271-276 (1972).
On May 24, 1972, the Sierra Club and others filed
percha x United States District Court for the Dis-
rict of Columbia seeking a declaratory judgment that
‘the Administrator’s policy to mmm state imple-
mentation plans which allow for significant deteriora-
tion of existing air quality’’ would violate the Clean
Air Act. Sierra Club further sought a preliminary in-
junction to enjoin the Administrator from approving
any State plan that did not provide for nondeteriora-
tion. On May 30, 1972, District Judge John H. Pratt
held a hearing to consider the motion for a preliminary
injunction, and at the conclusion of the hearing Judge
Pratt granted the motion. On June 2, 1972, Judge
Pratt issued an opinion, Sierra Club v. Ruckelshaus,
344 F.Supp. 253 (D.D.C. 1972), to accompany his grant
of preliminary injunctive relief. The decision was af-
firmed by the Court of Appeals for the District of
Columbia Cireuit, 4 ERC 1815 (per curiam) (unre-
ported in U.S. App. D.C. and F.2d) ‘‘on the basis of
the opinion filed June 2, 1972, by the District Court
(John H, Pratt, District Judge),”’ and by an equally
divided Supreme Court, sub nom. Fri v. Sierra Club
412 U.S. 541 (1973).*
In the only judicial opinion prior to the promulga-
tion of the significant deterioration regulations, the
* Affirmance by an equally divided Court is ‘without fo
precedent.’’ Katon v. Price, 364 U.S, 263, 264 (1960) alates of
Ty J.). See also, United States v. Pink, 315 U.S, 208, 216
7
district court stated that it based its decision on the
belief that a general purpose subsection of ‘*the Clean
Air Act of 1970, the legislative history of the Act and
its predecessor, and the past and present administra-
tive interpretation[s] of the Acts’’ imposed a nonde-
terioration requirement on State plans. 344 F.Supp.
at 256.
In response to the district court’s preliminary in-
junction, the Administrator disapproved all State im-
plementation plans ‘‘to the extent that such plans lack
procedures or regulations for preventing significant
deterioration of air quality in portions of States where
air quality is now better than the secondary stand-
ards.” 40 O.F.R. § 52.21, 37 Fed. Feg. 23836-37 (Nov.
9, 1972). The Administrator promised to publish, ‘‘as
soon as possible, proposed regulations setting forth
appropriate requirements for modification of State
implementation plans.”’ 37 Fed. Reg. 23836.
The first set of such proposed regulations appeared
the following year. 38 Fed. Reg. 18986 (July 16, 1973)
(A.91a-159a). The Administrator set forth four alter-
native proposals (the ‘‘air quality increment plan,”’
‘emission limitation plan,”’ ‘‘local definition plan,”’
and ‘“‘area classification plan’’), with a view toward
issuing final regulations ‘‘under the Clean Air Act
[that] would prescribe steps to be taken by the
States.’’ Jd. at A.9la.
A year later, the Administrator reproposed the reg-
ulations which had previously appeared as the ‘‘area
classification plan’’ alternative, and solicited further
‘“eomment on the detailed procedural and technical
aspects prior to promulgation.’’ 39 Fed. Reg. 31000
8
(Aug. 27, 1974). (A.160-205a)* Final regulations
were revised on November 27, 1974, 39 Fed. Reg. 42514
(Dee. 5, 1974) (A.206a-246a), and were effective as of
January 6, 1975. The regulations were revised on Jan-
uary 16, 1975 (40 Fed, Reg. 2802) (A.242a-245a), June
12, 1975 (40 Fed. Reg. 25004) (A.246a-283a) and Sep-
tember 10, 1975 (40 Fed. Reg. 42001) (A.284a-291a).
The regulations appear at 40 C.F.R. §§ 52.01, 52.21.
Upon issuance of the final regulations, petitions for
review were filed in the Court of Appeals for the Dis-
trict of Columbia Circuit and in five other courts of
appeals (A.lla, 13a, 16a, 17a, 19a, 22a, 26a, 28a,
31a, 32a). All petitions not in the Court of Appeals for
the District of Columbia Circuit were transferred to
that circuit and consolidated. The various petitioners
challenged the regulations from several perspectives.
In brief, challenges were made alleging:
—that the regulations were unauthorized by the
Clean Air Act;
—that the regulations’ grant of redesignation
power to Federal land managers and Indian gov-
erning bodies abrogated the authority vetlel in
the States by the Clean Air Act;
—that the regulations failed to prevent signifi-
cant deterioration of existing clean air;
—that the promulgation of the regulations was
procedurally defective ;
——that the increments established by the regu-
lations were arbitrary and capricious; and
—that the regulations were unconstitutional.
*The Administrator explained that a reproposal was necessary
“‘due to the lack of precise direction either in the Clean Air Act
or in the [District] Court order’’ regarding the implementation of
a significant deterioration policy, (A. 165a).
9
The court of appeals rejected all challenges to the
regulations and upheld the regulations in their entire-
ty. (A.39a). Of the two issues presently before this
Court, the court of appeals reached the merits only
on the issue of whether the regulations were authorized
by the Clean Air Act. Addressing that issue, the lower
court ruled that two recent decisions’ of this Court
were not controlling, (A.65a-66a), and that a general
purpose section, the legislative history and the ad-
ministrative interpretation of the Clean Air Act im-
a nondeterioration policy on State implementa-
tion plans. (A.54a-67a). The lower court declined to
address the issue of whether the authority granted to
Federal land managers and Indian governing bodies
to redesignate lands independent of State control ab-
rogated the authority granted to the States by the
Clean Air Act, finding that issue ‘‘not yet ripe for
review.’ (A.86a).
C. The Prevention of Significant Deterioration Regulations.
In broad outline, the regulations are designed to
prevent significant deterioration by controlling sulfur
dioxide and particulate matter emissions from desig-
nated new and modified stationary sources in all States
where air quality existing during 1974 was better than
primary and secondary ambient standards. 40 C.F.R.
§ 52.21(¢)(1). There are three ‘‘areas”’ established by
the regulations: Class I, Class II, and Class HI. In-
creases in pollutant concentrations in areas designated
either Class I or Class II are specifically limited, while
increases in Class III areas are allowed up to second-
ary standards. §52.21(¢)(2). The regulations desig-
* Train v. Nature! Resources Def. Council, 421 U.S. 60 (1975) ;
Union Electric Co. v. EPA, 427 U.S, 246 (1976).
10
nate the entire nation as Class II, § 52.21(¢) (3) (i), but
provide a procedure whereby the States can propose
to redesignate areas to any class; Federal land mana-
gers can propose to redesignate any Federal lands only
‘*to a more restrictive designation,’’ i.e., Class I; and
whereby Indian governing bodies can propose to re-
designate Indian lands to any class. § 52.21(¢) (3) (ii),
(iv), (v).
SUMMARY OF ARGUMENT
The Clean Air Act Amendments of 1970 sought to
remedy deficiencies of earlier anti-pollution enact-
ments by providing for the establishment of detailed
air quality and new source performance standards,
emission limitation, enforcement mechanisms, precise
deadlines, and a clear distribution of Federal and
State responsibilities for combatting air pollution that
was lacking in prior air pollution legislation.
Secton 108(a)(1) provides that: ‘“‘[f]or the pur-
pose of establishing national primary and secondary
ambient air quality standards,’’ the Administrator is
directed to list each air pollutant which, among other
requirements, he has judged to have an ‘‘adverse effect
on public health or welfare.’’ Section 109 directs the
Administrator to establish national primary and sec-
ondary ambient air quality standards for the listed air
pollutants; primary standards are defined as those
standards which, ‘‘allowing an adequate margin of
safety, are requisite to protect the public health,”
while secondary standards are those standards ‘‘requi-
site to protect the public welfare from any known or
anticipated adverse effects associated with the pres-
ence’’ of the listed air pollutant. Each State is re-
quired to adopt a plan to implement, maintain, and
11
enforce the national primary and secondary standards.
§110. An implementation plan must mect eight cri-
teria, foremost of which is that ‘it provides for the
attainment of [the] primary standard as expeditious-
ly as practicable but ... in no case later than three
years from the date of approval of such plan’’ and that
it ‘specifies a reasonable time’’ for the attainment of
the secondary standard. §110(a)(2)(A). ‘For pur-
poses of developing and carrying out implementation
plans under section 110,’’ the entire geographic area
of each State is designated an air quality control re-
gion. §107. Section 111 limits the emissions of air
pollutants from designated new stationary sources by
requiring application ‘‘of the best system of emission
reduction which ... the Administrator determines has
been adequately demonstrated.’’ A designated new
stationary source is a source the Administrator has
determined ‘‘may contribute significantly to air pollu-
tion which causes or contributes to the endangerment
of public health or welfare.’’ §111(b) (1) (A).
Congress enacted these provisions to achieve one of
the basic purposes of the Clean Air Act, namely ‘‘to
protect and enhance the quality of the Nation’s air
resources so as to promote the public health and wel-
fare and the productive capacity of its population.’’
§101(b) (1). At the same time, Congress has declared
that ‘‘the prevention and control of air pollution at
its source is the primary responsibility of States and
local governments.’’ §101(a)(3). Thus, while estab-
lishing eight specific criteria a State implementation
plan must satisfy in order to attain, maintain and en-
force the national ambient air quality standards, § 110
(a)(2)(A)-(H), Congress has directed the Adminis-
trator that he ‘‘shall approve’’ a State plan that meets
these eight criteria and procedural requirements. Con-
12
gress further provided, in § 116 of the Act, that a State
may choose to impose stricter standards than the na-
tional standards, but it nowhere required the States
to prevent the deterioration of air which is cleaner
than the national standards.
Despite its acknowledgement that ‘‘prohibition of
significant deterioration of air cleaner than the na-
tional standards is not an express requirement of the
Act,’’ (A.46a-47a) the lower court upheld EPA’s reg-
ulations that imposed such a nondeterioration require-
ment upon State implementation plans. In so doing,
the lower court ignored the teaching of three recent
decisions of this Court—Train v. Natural Resources
Def. Council, 421 U.S. 60 (1975), Hancock v. Train,
426 U.S. 167 (1976) and Union Electric Co. v. EPA,
427 U.S. 246 (1976)—disregarded the plain language
of §110(a)(2) of the Act which mandates EPA ap-
proval of State implementation plans that satisfy the
eight specified criteria of §110, and based its decision
entirely on the phrase ‘protect and enhance’’ con-
tained in a purpose clause §101(b)(1)), bits and
pieces of pre-1970 administrative regulations and a
two sentence passage from the 1970 Senate report
which does not mention either the purpose clause or
pre-1970 administrative regulations.
If the Court holds that the Clean Air Act does au-
thorize EPA to promulgate the significant deteriora-
tion regulations, it should also hold that the provisions
which grant to Federal land managers and Indian gov-
erning bodies the power to redesignate Federal and
Indian lands violate the Clean Air Act and disrupt the
Federal-State relationship so carefully established by
the Act. Those provisions permit Federal land man-
agers and Indian governing bodies to redesignate Fed-
13
eral and Indian lands independent of State control.
Because of the extraterritorial reach of a redesigna-
tion, Federal land managers and Indian governing
bodies are able to ‘‘dictate’’ land use 60-100 miles be-
yond Federal and Indian boundaries. In the western
States in particular, where extensive Federal and In-
dian land ownership prevails, the result is to give In-
dian governing bodies and Federal land managers the
power to control land use within entire States. There
is absolutely no statutory authority for such a result.
To the contrary, the Act explicitly declares that
‘‘fejach State shall have the primary responsibility
for assuring air quality within the entire geographic
area comprising such State.’’ § 107(a). Moreover, the
regulations nullify the requirement of §118 that
‘‘makes it the duty of federal facilities to comply
with state-established air quality and emission stand-
ards.’’ Hancock vy. Train, 426 U.S. 167, 183 (1976)
(emphasis supplied).
ARGUMENT
L
A. Section 110 Requires The Administrator To Approve State
Implementation Plans That Satisfy The Section’s Fight Re-
quiremenis Even Though The Plans Do Not Contain A Non-
deterioration Policy.
Section 110(a)(2) provides that the ‘‘ Administra-
tor shall aj vrove’’ a State implementation plan if it
has been adopted after public hearings and if it sat-
isfies eight specified criteria that are concerned with
the ‘‘attainment’’ and ‘‘maintenance”’ of the national
primary and secondary air quality standards promul-
gated by EPA.’ Although the court below conceded
"The eight criteria, section 110(a)(2)(A)-(H), are set forth,
supra at 4-5.
14
that none of the eight criteria ‘‘implies a nondeteriora-
tion standard’’ (A.55a), it nevertheless upheld the
promulgation by EPA of regulations that require State
implementation plans to contain provisions to prevent
significant deterioration of air that is cleaner than the
air quality required by the national standards. EPA’s
regulations were promulgated in response to an order
issued by the lower court in the Ruckelshaus case,
which rejected the Administrator’s contention that he
had no authority to disapprove State implementation
plans that satisfied the eight specified criteria set forth
in §110(a) (2).
The statutory language is both direct and explicit
— ‘The Administrator shall approve’’ (emphasis sup-
plied). Statutory use of the word ‘‘shall’’ generally
denotes a mandatory requirement, that is, command-
ing some act. See Escoe v. Zerbst, 295 U.S. 490 (1935) ;
Richbourg Motor Co. v. United States, 281 U.S. 528
(1930). In three recent cases interpreting the Clean
Air Act, this Court in discussing §110(a)(2) stated
that the ‘‘mandatory ‘shall’ makes it quite clear that
the Administrator is not to be concerned with factors
other than those specified.’’ Union Electric Co. v. EPA,
427 U.S. 246, 252 (1976). Accord, Hancock v. Train,
426 U.S. 167, 170 (1976); Train v. Natural Resources
Defense Council, 421 U.S. 60, 71 n. 11, 79 (1975). The
lower court held that these three decisions were not
controlling because ‘‘the [Supreme] Court did not
address the issue’’ of nondeterioration. (A.64a). Al-
though petitioners agree that those decisions did not
directly address the nondeterioration issue, we believe
those decisions are controlling on the issue of whether
the mandatory ‘‘shall approve’’ language in § 110(a)
(2) requires the Administrator to approve State im-
15
plementation plans that meet the § 110(a) (2) criteria,
even though the plans do not contain a nondeteriora-
tion provision.
The only statutory basis that the lower court cited
to support its holding that the Clean Air Act “‘em-
bodied” a nondeterioration requirement is §101(b)
(1),* which sets forth one of the Act’s purposes. Yet,
the lower court conceded that ‘‘prohibition of signifi-
eant deterioration of air cleaner than the national
standards is not an express requirement of the Act.”’
(A.46a-47a). Moreover, in seeking to impose a specific
requirement of nondeterioration upon § 110 implemen-
tation plans, the court below misconstrued §101(b)
(1), which declares that one of the basic purposes of
the Act is:
to protect and enhance the quality of the Na-
tion’s air resources so as to promote the public
health and welfare and the productive capacity
of its population.’
® The lower court further sought to support its holding based
on selected administrative interpretations of the 1967 Air Quality
Act, 81 Stat. 485, and the legislative history of the Clean Air Aet,
as amended. Petitioners address these issues infra at 22-34.
* Even if § 101(b)(1) implies a nondeterioration concept as con-
tended by the lower court (A. 46a-47a), it still can not impose such
a requirement upon § 110 implementation plans. The law is settled
that ‘‘ [h]owever inclusive may be the general language of a statute,
it ‘will not be held to apply to a matter specifically dealt with in
another part of the same enactment ... Specific terms prevail over
the general in the same or another statute which otherwise might
be controlling.’ Ginsberg & Sons v. Popkin, 285 U.S. 204, 208.”
MacEvoy Co. v. United States, 322 U.S. 102, 197 (1944). See also,
Fourgo Glass Co. v. Transmirra Products Corp., 353 U.S. 222
(1957). Seetion 110 is specific in its requirements. Section 101(b)
(1), on the other hand, contains general language only. Moreover,
where two statutory provisions conflict, the later in time is con-
16
Citing the legislative history of § 101(b) (1), the lower
court held that the ‘‘protect and enhance” language
expresses a policy of nondeterioration. (A.56a).”° Such
a construction of ‘‘protect and enhance”’ is reached by
isolating those words not only from the rest of the
Act, but from the remainder of the sentence. This
violates the fundamental rule ‘‘that a section of a stat-
ute not be read in isolation from the context of the
whole act.”’ Richards v. United States, 369 U.S. 1, 11
(1962).
The ‘‘protect[ion] and enhance[ment]”’ of the air
quality is for the express purpose of promoting ‘‘the
publie health and welfare and the productive capac-
ity’’ of the Nation’s population. Section 108 requires
the Administrator to list and establish air quality eri-
teria for air pollutants which in his judgment have
‘‘an adverse effect on public health or welfare.”’™ And
§ 109 directs the Administrator to promulgate national
primary and secondary air quality standards once he
has established air quality criteria. National primary
standards are defined as those which, “‘allowing an
adequate margin of safety, are requisite to protect the
public health.”’ §109(b)(1) (emphasis supplied). Na-
tional secondary standards are defined as those ‘“‘requi-
site to protect the public welfare from any known or
anticipated adverse effect’’ associated with the air pol-
lutant. §109(b)(2) (emphasis supplied).
trolling. Adkins v. Arnold, 235 U.S, 417, 421 (1914). Secti
1 _ Ad ‘ S. ; . Sect 1
is later in time than § 101(b) (1), having been pase st as ap
the 1970 Amendments to the Clean Air Act, whereas § 101(b) (1)
was part of the Air Quality Act of 1967. See infra at 24-25.
10 +43 : , : .
at ee discuss the legislative history of § 101(b) (1) infra
“ Two other requirements must be :
ean be listed. § 108(a) (1) (B)-(C). ee ae ay geen
17
The State implementation plans are to provide for
the ‘implementation, maintenance, and enforcement’’
of the primary and secondary standards. § 110(a) (1).
The first of the eight specified criteria for an imple-
mentation plan, § 110(a) (2) (A), requires that a State
plan provide for ‘‘the attainment of such primary
standard as expeditiously as practicable but .. . in no
ease later than three years from the date of approval
of such plan’’ and for the attainment of the secondary
standard within ‘‘a reasonable time.”’
The remaining provisions of §110(a)(2) specifical-
ly detail the other criteria by which the States, in their
implementations plans, are to ‘‘protect and enhance
the quality of the Nation’s air resources so as to pro-
mote the public health and welfare.”’ And, as even the
lower court recognized, the prevention of deteriora-
tion of air cleaner than the national standards is not
among them. The foregoing construction of §101(b)
(1) and §110(a) (2) is consistent with the ‘‘anatomy”’
and ‘“‘structure”’ of the Act, Train, supra, 421 U.S. at
63, 86. However, the lower court’s construction of § 101
(b) (1) superimposes a ninth requirement—nondeteri-
oration—upon § 110 State implementation plans. The
court’s construction conflicts with the mandatory lan-
guage of § 110 which requires approval of State plans
which meet the eight specified criteria. In cases of
such conflict, the construction that would permit both
provisions of the statute to stand should be employed.
United States v. Moore, 95 U.S. 760 (1878). Since pe-
titioners’ construction of §101(b)(1) ‘‘admits a rea-
sonable construction which gives effect to all of [the
Clean Air Act’s] provisions,’ Jarecki v. G. D. Searle
d& Co., 367 U.S. 303, 307 (1961), that construction
should prevail.
Y
18
B. The Prevention Of Significant Deterioration Regulations Are
Inconsiatent With Other Provisions Of The Clean Air Act.
Section 110(e¢)(1) provides that the Administrator
shall ‘‘prepare and publish proposed regulations set-
ting forth an implementation plan” for a State if—
and only if:
(A) the State fails to submit an implementation
plan for any national ambient air quality prima
or secondary standard within the time prescribed,
(B) the plan... submitted for such State is de-
termined by the Administrator not to be in ac-
cordance with the requirements of this section
[§ 110], or
(C) the State fails . . . to revise an implemen-
tation plan as required [to achieve national pri-
mary or secondary ambient air quality stan ].
...+ (emphasis supplied).
None of the three circumstances authorizes the Ad-
ministrator to promulgate an implementation plan, or
portion thereof, if a State plan fails to contain a re-
quirement preventing the deterioration of air cleaner
than the national standards. The district court in
Ruckelshaus nonetheless ordered the Administrator to
disapprove State plans that failed to contain nonde-
terioration provisions, and to promulgate amendments
to those plans to incorporate regulations that would
provide for prevention of significant deterioration."
The regulations are likewise inconsistent with the
Clean Air Act as amended by the Energy Supply and
Environmental Coordination Act of 1974. 88 Stat. 246.
That Act, designed to encourage stationary fuel-burn-
" See, ¢.g., 40 C.F.R. §§ 52.343 (Colorado), 52.683 (Idaho),
52.2346 (Utah), 52.2630 (Wyoming).
19
ing sources to convert from oil to coal, requires the
Administrator to review State implementation plans
to determine whether ‘‘such plans can be revised in
relation to fuel burning stationary sources . . . without
interfering with the attainment and maintenance of
any national ambient air quality standard.’’ § 110(a)
(3)(B). If a plan can be revised, the State shall be so
notified and ‘“‘{a]ny plan revision which is submitted
by the State shall . .. be approved by the Administra-
tor if the revision relates only to fuel burning sources
... and the plan as revised complies’? with § 110(a)
(2). Again, the Administrator has no discretion in ap-
proving or disapproving a revised plan—if the revised
plan complies with the eight criteria of § 110(a) (2)
and the other general requirements of the subsection
the Administrator ‘‘shall’’ approve the plan. Train v.
Natural Resources Def. Council, supra, 421 U.S. at 65.
Moreover, the limitation Congress imposed on a revi-
sion to a State implementation plan is that it not inter-
fere ‘“‘with the attainment and maintenance of any na-
tional ambient air quality standard.” § 110(a) (3) (B).
Revisions are not limited by a requirement of nonde-
terioration. The court below asserted that conversion
to coal “certainly will impair both improvement and
maintenance of air quality’’ but stated that ‘‘there is
no reason to believe that passage of ESECA was in-
tended to eliminate the requirement of nondeteriora-
tion.” (A.66a). The fallacy of this argument, of course,
is that it assumes there is a ‘‘requirement’’ of nonde-
terioration.
The lower court ignored completely the provisions
of §111 and its legislative history which demon-
strate that Congress meant for the Federal govern-
ment to focus on the prevention of new pollution prob-
20
lems by the establishment of federal standards of per-
formance for new (and modification of existing)
sources. Yet, just a week prior to the decision of the
court below, another panel of the District of Columbia
Circuit concluded that ‘‘[T]he Clean Air Act, and sec-
tion 111 in particular, was also designed to prevent
new pollution problems, especially the deterioration of
air quality in areas where existing air quality levels
exceed the promulgated air quality standards.’’ Na-
tional Asphalt Pavement Association vy. Train, 539
F.2d 775, 783 (D.C. Cir. 1976) (emphasis supplied).
Section 111 directs the Administrator to establish
federal standards of performance for new and modi-
fied stationary sources. Section 111 is applicable to
stationary sources listed by the Administrator, the
construction or modification of which are commenced
after the publication of regulations prescribing a stand-
ard of performance.” A ‘“‘standard of performance”’
means ‘‘a standard for emissions of air pollutants
which reflects the degree of emission limitation achiev-
able through the application of the best system of emis-
sion reduction which . .. the Administrator determines
has been adequately demonstrated.’’ §111(a) (1).
That § 111 was the means chosen by Congress to pre-
vent new pollution problems is evidenced in both the
House and Senate reports accompanying the 1970
Amendments. The House reported that the provision
for control over new stationary sources was enacted
**To date, the Administrator has listed 24 categories of sta-
tionary sources which are subject to the requirements of §111. 40
C.F.R. Part 60, Subparts D-AA. The construction or modification
of fossil-fuel fired steam generators such as those operated by peti-
tioners are subject to the requirements of § 111. 40 C.F.R. Part 60
Subpart D.
21
to “‘prevent the occurrence anywhere in the United
States of significant new air pollution problems. .. .”
E.R. Rep. No. 91-1146, 91st Cong., 2d Sess. 3 (1970).
That view was shared by the Senate Co-amittee, which
concluded :
The overriding purpose of this section would
be to prevent new air pollution problems, and to-
ward that end, maximum feasible control of new
sources at the time of their construction is seen
by the committee as the most effective and, in the
long run, the least expensive approach. 8. Rep. No.
91-1196, 91st Cong., 2d Sess. 16 (1970)."
Section 111 reflects the dual objective of preventing
air pollution, without at the same time unduly inhibit-
ing economic growth. Thus, §111 balances competing
interests so as to best attain the general purpose set
forth in §101(b) (1) of promoting “‘public health and
welfare and the productive capacity’’ of the Nation’s
population. Emissions of air pollutants are minimized
by employing the ‘‘best system of emission reduction,”’
while at the same time economic development and
growth are not altogether prohibited. This is the means
chosen by Congress to prevent new pollution problems.
By contrast, the significant deterioration regulations
impose an absolute prohibition against construction
or modification of a source if it will violate an air
quality increment in a designated area. 40 C.F.R.
§ 52.21(d) (2) (3).
Moreover, consistent with the principle ‘‘that the
prevention and control of air pollution at its source
1* And the Senate committee in the general statement of its report
stated: ‘‘Maintenance of existing high quality air is assured
through provision for maximum control of new major pollution
sources.’’ S. Rep. No. 91-1196, 91st Cong., 2d Sess. 2 (1970).
22
is the primary responsibility of States and local gov-
ernments,’’ §101(a)(3)," Congress preserved the
States’ freedom, in § 116, to impose a more stringent
‘standard or limitation respecting emissions of air
pollutants.’’ Thus, § 116 leaves to the individual States
the management of economic growth as limited by the
national primary and secondary ambient air quality
standards. If a nondeterioration policy is to be im-
posed, it is to be done by the individual States, and
not by the Federal government.
On its face, the Act is explicit in its standards and
requirements. Nowhere in the Act is a nondeteriora-
tion policy such as that imposed by the significant de-
terioration regulations authorized. Those regulations
contravene the directives of the Act, Although the Act
is So clear and unequivocal that it presents a classic
justification for not resorting to its underlying legis-
lative history, see, e.g., United States v. Oregon, 366
US. 643, 648 (1961), an examination of the legisla-
tive history is in order since the lower court found,
‘‘in the legislative history of the Clean Air Act of 1970
a clear understanding that the Act embodied a pre-
existing policy of nondeterioration of air cleaner than
the national standards.”’ (A.55a). As we show below
the legislative history does not in fact provide the
support necessary to validate the significant deteriora-
tion regulations promulgated by the Administrator.
C. The Legislative History Of The Clean Air Act Does Not
Support The Significant Deterioration Regulations.
. The lower court acknowledged that “prohibition of
significant deterioration of air cleaner than the na-
M. Mlpe e eggeneron place the primary responsibility for formu-
ing pollution con strategies on the States.’’ Uni }
Co. v. EPA, supra, 427 U.S. at 256. =
23
tional standards is not an express requirement of the
Act.”? (A.46a-47a). It nonetheless upheld the Admin-
istrator’s promulgation of significant deterioration
regulations because the court found, ‘‘in the legislative
history of the Clean Air Act of 1970, a clear under-
standing that the Act embodied a pre-existing policy
of nondeterioration of air cleaner than the national
standards.’’ (A.55a) (emphasis supplied). Having dis-
covered this “pre-existing policy’? and finding ‘‘no
support for the proposition that the addition of Sec-
tion 110(a)(2) was intended to limit that policy in any
way’’ the lower court reaffirmed its prior per curiam
decision in Sierra Club v. Ruckeishaus. Id. (emphasis
supplied).
The lower court nowhere explained how there could
be a “pre-existing policy of nondeterioration of air
cleaner than the national standards”’ since there were
no national ambient air quality standards or legisla-
tion requiring the setting of national standards prior
to the Clean Air Act Amendments of 1970. Nor did the
lower court explain the significance, if any, of its
characterization of §110(a)(2) as merely an ‘‘addi-
tion” to the Clean Air Act of 1970. The ‘‘national
standards”’ to which the court referred to support its
premise of a “‘pre-existing [i.e., pre-1970] policy”’ of
nondeterioration were likewise ‘‘additions’’ enacted
as part of the 1970 Amendments to the Clean Air Act.
In short, contrary to the conclusion of the lower court
—a conclusion which is at the core of its decision up-
holding the validity of the nondeterioration regulations
—there could not have been a ‘‘pre-existing policy of
nondeterioration of air cleaner than the national stand-
ards’’ because such standards simply did not exist
24
prior to the Clean Air Act of 1970." The fact is, and
examination of the legislative history of the Act re-
veals, that a policy of nondeterioration of air cleaner
than the national standards has never been embodied
in the Clean Air Act.
The legislative history of § 101(b) (1)—the only stat-
utory provision the lower court cited in support of
its decision to uphold the significant deterioration reg-
ulations—does not express a policy of nondeteriora-
tion. Because the court below relied so heavily on the
§ 101(b) (1) phrase ‘‘protect and enhance,”’ it is illum-
inating to trace the origins of that language.
In the Clean Air Act of 1963, 77 Stat. 392, Con
declared that a purpose of the Act was “‘to a
the Nation’s air resources so as to promote the public
health and welfare and the productive capacity of its
population. . . .”’ 77 Stat. 393.7 Section 5 of the 1963
Act sought to achieve that general purpose by author-
izing the Attorney General to sue 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 discharge or discharges . . . origin-
ate.’’ 77 Stat. 396-398 (emphasis supplied).
The phrase ‘‘and enhance the quality of’? was added
after the words ‘‘to protect”’ by the Air Quality Act
of 1967. 81 Stat. 485. This phrase reflected the 1967
Amendments’ prime purpose, which was ‘‘to strength-
** The 1967 Air Quality Act directed each State to ado
i i : pt ambient
air quality standards applicable to any designated ai :
trol region, 81 Stat. 491. Po & Gay
* Thus, the lower court is not quite accurate when i
a en it states that
the ‘‘ ‘protect and enhance’ language of the Clean Air Act was
added by the Air Quality Act of 1967.’ (A.55a).
25
en the Clean Air Act... and to enhance the quality of
the atmosphere to protect the health and welfare of
_ [the] citizens against long-term hazards and imme-
_diate danger.’’ 8. Rep. No. 403, 90th Cong., Ist Sess. 2
(1967).
‘ One means by which the 1967 Amendments sought
to strengthen the Clean Air Act of 1963 was the des-
ignation of ‘‘air quality control regions.”’ But air qual-
ity control regions did not include clean air areas.
Rather, they were confined to those areas deemed
‘necessary for the establishment of air quality stand-
ards to protect public health and welfare.’’ H. R. Rep.
No. 728, 90th Cong., Ist Sess. 33 (1967). See also, 8.
Rep. No. 403, 90th Cong., Ist Sess. 25 (1967). Air qual-
ity control regions were ‘‘those communities which,
because of the extent of urbanization and industriali-
zation, meteorological factors, and so on, are affected
by a common air pollution problem requiring conform-
ity of action.”’ H. R. Rep. No. 728, 90th Cong., Ist Sess.
15 (1967). Moreover, if ‘‘an area is not now a problem
area,’’ it is only in the event that ‘“‘the air quality...
deteriorates below the level required to protect the
public health and welfare’ that the Department of
Health, Education and Welfare would be ‘‘required
to designate that region for the establishment of air
quality standards. .. .”’ S. Rep. No. 403, supra at 4
(emphasis supplied).
Ignoring the air quality control region and protec-
tion of health and welfare concepts that were integral
parts of the 1967 Act, the court below declared that
the ‘“‘administrative interpretation and, to a lesser de-
gree, the legislative history of the Air Quality Act ex-
pressed a policy of nondeterioration.’’ (A.56a). The
authorities noted by the court below (A.56a, n. 30), in
26
fact provide no support for a ‘‘policy of nondeteriora-
tion’’ that relates to air cleaner than the national
standards, which is the issue in this case.
The court below stated that the National Air Pollu-
tion Control Administration of HEW, which admin-
istered the 1967 Act, ‘‘formalized the concept of non-
deterioration’’ in its Guidelines for the Development
of Air Quality Standards and Implementation Plans.
(A.56a, n. 30). To support this statement the court
quoted the following language:
[A]n explicit purpose of the [1967] Act is to
‘protect and enhance the quality of the Nation’s
air resources’ (emphasis added by the court). Air
quality standards which, even if fully implement-
ed, would result in significant deterioration of air
quality im any substantial portion of an air qual-
ity control region clearly would conflict with this
<a purpose of the law. (emphasis sup-
plied).
Since, under the 1967 Act, only an area with air pollu-
tion problems was designated an ‘‘air quality control
region”’ and since in the quoted statement “significant
deterioration’’ related specifically to an air quality
control region, the so-called ‘‘formalized’’ ‘‘concept of
nondeterioration’’ did not refer at all to areas where
the air is clean, much less to air cleaner than the ‘‘na-
tional standards”’ which were not yet in being. To the
contrary, the Guidelines were specifically addressing
the establishment of the air quality standards for air
quality control regions, which, under the 1967 Act,
were those areas where air quality had already reached
levels that endangered the health or welfare of persons
affected. Thus, as Senator Muskie explained the 1967
Act on the Senate floor, the ‘‘fact that an area is not
27
now a problem area will not mean that controls will
never be required. When the air quality of any region
deteriorates below the level required to protect public
health and welfare, the Secretary is required to des-
ignate that region for the establishment of air quality
standards enforceable by the Federal Government if
the States fail to act.’’ 113 Cong. Ree. 19172 (July 18,
1967) (emphasis supplied).
The court ignored this explanation and cited instead
an isolated portion of another statement by Senator
Muskie “‘for the proposition that it was necessary ‘to
assure the lessening of current levels of pollution and
to prevent further environmental deterioration in the
future.’’’ (A.56a, n. 30). But, the sentence in its en-
tirety and the subsequent sentence state:
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 recognizing the importance of
the economic-technological-environmental _ rela-
tionship we must develop the requisite framework
to implement the desived goals. 8S. Rep. No. 403,
90th Tone, Ist Sess. 8-9 (1967).
The ‘‘steps’’ and ‘‘framework”’ referred to by Senator
Muskie and established by Congress in the 1967
Amendments were designed to abate air pollution in
‘‘air quality control regions’’ where, because of ‘‘ur-
ban-industrial concentrations, and other factors’’
(§107(a)), the air quality ‘‘endangers the health and
welfare of ... persons’’ (§ 108(a)). 81 Stat. 491. There
was absolutely no provision in the 1967 Amendments
that established a nondeterioration policy for high
quality ambient air areas. Indeed, ‘‘deterioration’’ was
only discussed in the context of the air quality control
28
regions in the 1967 Act and the ambient air quality
levels necessary to protect ‘‘the public health and wel-
fare.’’? And the 1970 Clean Air Act Amendments spe-
cifically embraced the ‘‘health and welfare’’ concept
in the Act’s eperative provisions by requiring the
Administrator of EPA: (1) to establish national pri-
mary standards requisite to protect public health; (2)
to establish national secondary standards requisite to
protect the public welfare; and (3) to approve State
implementation plans which meet the eight specified
statutory criteria designed to achieve the national pri-
mary and secondary standards within the required
time frames established in the Act.
The lower court cited excerpts of testimony of HEW
Secretary Finch and Undersecretary Veneman from
the Senate hearings on the 1970 Clean Air Act Amend-
ments which the court believed expressed ‘‘their clear
understanding that the ‘protect and enhance’ language
of Section 101 mandated the policy of nondeteriora-
tion.’’ (A.56a).
The lower court quoted two paragraphs of Secre-
tary Finch’s prepared testimony. The first quoted par-
agraph points out that States ‘‘would have the option
of designing their implementation plans to achieve or
preserve higher than national [air] quality levels, if
they wished to do so.’’ (A.57a) (emphasis supplied).
This statement is completely consistent with the pro-
visions ultimately enacted in § 116 of the 1970 Act and
totally inconsistent with the court’s conclusion that
the Administrator of EPA has authority to require
the States to prevent the deterioration of air cleaner
than the national standards.
The second quoted paragraph from Secretary
Finch’s prepared testimony—that ‘it has been and
29
will continue to be our view that implementation plans
that would permit significant deterioration of air qual-
ity in any area would be in conflict with the [‘protect
and enhance’] provision’’ and that ‘‘[w]e shall con-
tinue to expect States to maintain air of good quality
where it now ex’sts’’ Id.—is at best equivocal. But
whatever its meaning, an earlier paragraph in the
Secretary’s statement—which the lower court did not
cite—unequivoeally declared that ‘‘[t]he provisions
for national air quality standard-setting would not im-
pair any State’s right to establish standards requiring
higher levels of air quality. This right is stated as a
national policy in section 109 [presently § 116] of the
Clean Air Act, and there would be no change in this
policy.’’ (Air Pollution—1970, Hearings before the
Subcommittee on Public Works, Part I, 132 (1970)).
And that declaration, the substance of which was re-
peated in the first paragraph of the Secretary’s state-
ment quoted in the lower court’s opinion and as well
by Undersecretary Veneman,” is wholly at odds with
18 Undersecretary Veneman, who submitted Secretary Finch’s
written statement, also declared that
The provisions for national air quality standard setting
would not impair any State’s right to establish standards re-
quiring higher levels of air quality.
I think we should particularly emphasize that point, that
this right is stated as a national policy in the Clean Air Act,
and it is a right that we affirm. Air Pollution—1970, supra at
143.
Again, the lower court ignored this portion of the Veneman testi-
mony and quoted instead another portion of his extemporaneous
statement which essentially repeated the second paragraph of See-
retary Finch’s prepared testimony relied upon by the lower court.
The Veneman language relied upon by the lower vourt is, like the
similar Finch language, ambiguous, contrary to the explicit recog-
30
the notion that the States are required to prevent de-
terioration of air cleaner than the national standards
—especially in light of the lower court’s recognition
that ‘‘prohibition of significant deterioration of air
cleaner than the national standards is not an express
requirement of the Act.’’ (A.46a-47a). But Congress
did expressly provide the States with the option in
§116 to establish standards demanding higher levels
of air quality than the national, federally-established
standards, and it is that option which the lower court
has withdrawn from the States, solely on the basis of
its view of portions of legislative history.
Finally, the court below attempted to uphold the
validity of the significant deterioration regulations by
citing two sentences in the 1970 Senate report, (A.57a-
58a) :
In areas where current air pollution levels are
already equal to, or better than, the air quality
goals, the Secretary should not approve any im-
plementation plan which does not provide, to the
maximum extent practicable, for the continued
maintenance of such ambient air quality. Once
such national goals are established, deterioration
of air quality should not be permitted except un-
der circumstances where there is no available al-
ternative. S. Rep. No. 91-1196, 91st Cong., 2d Sess.
11 (1970).
The court below treated this report language as a
‘‘nondeterioration mandate’’ (A.59a), and concluded
nition of both men and contrary to the explicit provisions of the
1970 Clean Air Act Amendments that it is for the States—and not
the EPA Administrator—to decide whether to establish air quality
standards more stringent than the national primary and secondary
standards.
31
that, by contrast, ‘‘there was no particular significance
ascribed to the ‘shall approve’ language of the section
which became Section 110(a)(2).’’ (A.58a). On the
contrary, petitioners suggest the ‘‘particular signifi-
cance’’ to be ‘‘ascribed to the ‘shall approve’ language
of §110(a)(2) is that it indeed became law with the
passage of the 1970 Amendments to the Clean Air Act.
And, as this Court made clear in Train v. Natural Re-
sources Def. Council, supra, 421 U.S. at 79, ‘the Agen-
cy is required to approve a state plan which provides
for the timely attainment and subsequent maintenance
of ambient air standards... .’’ (emphasis in original).
On the other hand, the ‘‘nondeterioration mandate
contained in the Senate report,’’ to which the lower
court refers, is nowhere set forth in the Clean Air
Act in any form, much less as a ‘‘mandate’’ to the
States.
Apart from this vital difference between a ‘‘man-
date’’ presumably contained in a Senate report and
the ‘‘mandate’’ actually set forth in §110(a)(2) of
the Clean Air Act of 1970, the fact is that the two sen-
tences which the lower court characterized as a ‘‘non-
deterioration mandate” falls far short of justifying
the conclusion that the Federal government was there-
by authorized to require sovereign States to prevent
the deterioration of air cleaner than the national stand-
ards. In the first place, neither sentence mentions the
‘protect and enhance’’ language of the §101(b)(1)
purpose clause of the Act repeatedly referred to by
the lower court as the sole statutory basis for a non-
deterioration policy. Furthermore, if there were in-
deed a ‘pre-existing policy of nondeterioration of air
cleaner than the national standards’’ as the lower
court found from its reading of the ‘legislative history
32
of the Clean Air Act of 1970,’’ (A.55a), certainly that
policy would have surfaced in the only two sentences
in the Senate report the court below could find to sup-
port its ‘‘nondeterioration mandate’’ conclusion. Yet,
such a ‘‘pre-existing policy’’ is nowhere described or
referred to in either sentence. To the contrary, the
language speaks prospectively of the establishment of
‘national goals.”’ Even then, the quoted language sug-
gests, it does not mandate, disapproval of State imple-
mentation plans—‘‘the Secretary should not approve.”’
And that suggestion is itself further qualified in two
respects—first, it relates to an implementation plan
‘“‘which does not provide, to the maximum extent prac-
ticable, for the continued maintenance of such ambient
air quality’? (emphasis supplied). Secondly, the sug-
gestion refers to the situation ‘‘[o]nce such national
goals are established’’—i.e., once the federally estab-
lished levels of air quality are set—‘deterioration of
air quality should not be permitted except where there
is no available alternative.” (emphasis supplied). It
would seem that this language refers to maintaining
air quality at the federal standards, once achieved,
particularly in light of the very next sentence in the
Senate report, which states as follows:
Given the varying alternative means of prevent-
ing and controlling air pollution—including the
use of the best available control technology, indus-
trial processes, and operating practices—and care
in the selection of sites for new sources, land use
planning and traffic control—deterioration need
not occur. S. Rep. No. 91-1196, 91st Cong., 2d Sess.
11 (1970).
Although the lower court held that ‘‘there was no par-
ticular significance ascribed to the ‘shall approve’ lan-
33
guage”’ of §110(a)(2)(A.58a), the legislative history
of §110 makes it quite clear that Congress knew what
it was saying and meant what it said by inclusion of
the ‘‘shall approve’’ language.
The Senate report stated that the Administrator
‘‘shall approve’’ a State plan if it meets designated
criteria, none of which expressed a nondeterioration
policy. S. Rep. No. 91-1196, 91st Cong., 2d Sess. 55
(1970). The House report declared that a State plan
‘‘will be applied’ if the Administrator determines
that the plan meets four requirements, none of which
expressed a nondeterioration policy. H. R. Rep. No. 91-
1146, 91st Cong., 2d Sess. 8 (1970). And the Confer-
ence report, in summarizing the Senate and House
bills, stated that under the House bill the Administra-
tor ‘‘was to approve’’ a plan if it met the listed re-
quirements, and under the Senate bill the Adminis-
trator ‘‘was required to approve’’ a plan that met the
listed requirements. H. R. Rep. No. 91-1783, 91st Cong.,
2d Sess. 45 (1970). The language is consistent in its
mandatory tone requiring the Administrator to ap-
prove plans that meet the designated criteria of § 110.
Nowhere is there language permitting, much less re-
quiring, the Administrator to disapprove a State plan
for failure to include a nondeterioration requirement.”
Thus, neither the language of the Clean Air Act nor
its legislative history, supports a policy of nondeteri-
1°'The lower court concluded that it was ‘‘significant .. . that
recent congressional statements have supported the historic exist-
ence of a requirement of nondeterioration.’’ (A.6la). Quite the con-
trary, though, it is not significant, for the ‘‘views of a subsequent
Congress of course provide no controlling basis from which to infer
the purposes of an earlier Congress. Haynes v. United States, 390
U.S. 85, 87 n. 4 (1968).
34
oration. The legislative history of §110(a)(2) and
the enacted language demonstrates that Congress knew
how to create a mandate when it wanted a mandate.
The disapproval by the Administrator of State plans
for failure to contain a nondeterioration policy and
the subsequent promulgation of the significant dete-
rioration regulations violate the Clean Air Act.
I.
A. The Regulatory Provisions Violate The Clean Air Act Insofar
As They Authorize Federal Land Managers And Indian Gov-
erning Bodies To Redesignaite Federal And Indian Lands
Independent Of State Control.
The question whether the Clean Air Act empowers
the Environmental Protection Agency to grant Fed-
eral land managers and Indian governing bodies au-
thority to redesignate Federal and Indian lands need
not be reached if the Court holds that the regulations
are invalid in their entirety, as we urge in Part I,
supra. If the Court holds that a nondeterioration pol-
icy is authorized by the Clean Air Act, the second
issue emerges: whether the Act authorizes Federal
land managers and Indian governing bodies to re-
designate Federal and Indian lands independent of
State control.
1. The Redesignation Provisions.
The prevention of significant deterioration regula-
tions initially designated all applicable areas as Class
II. 40 C.F.R. §52.21(e) (3). Redesignation of these
areas may be proposed by the States, Federal land
managers, or Indian governing bodies, subject to ap-
proval by the Administrator. Id.
35
A State may propose to redesignate an area within
its boundaries to either a Class I or Class III designa-
tion provided certain procedural prerequisites are
followed.” 40 C.F.R. § 52.21(¢) (3) (ii). Where Federal
lands are located within a State, that State may pro-
pose to redesignate those lands so long as the redesig-
nation is consistent with adjacent State and privately
owned lands, and the redesignation is proposed after
consultation with the Federal land manager. 40 C.F .R.
§ 52.21(e) (3) (iii).
However, a Federal land manager may propose to
redesignate any Federal lands to a ‘‘more restrictive
designation than would otherwise be applicable’’ pro-
vided that he follows procedures ‘‘equivalent to those
required of States’’ and that the redesignation is pro-
posed after consultation with the State(s) in which
the Federal land is located or which borders the Fed-
eral land. 40 C.F.R. §52.21(c) (iv).”
Moreover, an Indian governing body may propose
to redesignate to either a Class I or Class III designa-
tion the lands over which it has jurisdiction provided
that it follows procedures equivalent to those required
of the States and that it consults with the State(s) in
which the lands are located or border. 40 C.F.R. § 52.21
(c)(v). For Indian lands held in trust, the redesigna-
20 Those prerequisites are: that at least one public hearing be
convened, 40 C.F.R. § 52.21(c) (3) (ii) (a) ; that neighboring States
be notified at least 30 days prior to the public hearing, 40 C.F.R.
§ 52.21(¢) (3) (ii) (b) ; that a discussion of the reasons for the redes-
ignation be made available for public inspection at least 30 days
prior to the hearing, 40 C.F.R. § 52.21(c) (3) (ii) (¢) ; and that the
redesignation be based on the record of the State’s hearing, 40
C.F.R. § 52.21(¢) (3) (ii) (d).
21 Federal land managers may not propose to redesignate Federal
lands to the more lenient Class III designation.
36
tion must have the approval of the Secretary of the
Interior. 40 C.F.R. §52.21(¢)(v)(b).
; re pean further provide that the Adminis-
rator shall approve any redesignation proposed by a
State, Federal land manager, ns Indian woe Me
body so long as the prescribed procedural require-
ments have been met and provided that the redesig-
nating entity has not ‘‘arbitrarily and capriciously”’
disregarded the area’s anticipated growth, the “‘social,
environmental, and economic effects’’ of the redesigna-
tion upon the area and ‘‘upon other areas and States,”’
and the redesignation’s impact upon ‘‘regional or na-
tional interests.’’ 40 C.F.R. § 52.21(¢) (3) (vi).” In the
event a State or Indian governing body protests a
proposed redesignation, the Administrator may ap-
prove it only if be determines in his ‘‘judgment,”’ that
the redesignation ‘appropriately balances” the ‘‘con-
siderations’’ quoted above.
As we show below, these regulations encroach upon
the primary role reserved to the States under the Clean
Air Act for controlling air pollution within their en-
tire geographic areas.
2. The Clean Air Act Explicitly Grants The States The Primary
Responsibility For Controlling Air Quality Throughout Their
Entire Geographic Areas.
Even though Congress ‘‘took a stick to the States,’’
Train v. Natural Resources Def. Council, supra, 421
U.S. at 64, with the passage of the Clean Air Amend-
*? A State redesignation proposal will not be approved unless the
State has requested and been delegated by EPA the responsi-
bility for carrying out preconstruction review of new sources in
oa with provisions of the regulations, § 52.21(¢) (3) (vi)
37
ments of 1970, it explicitly provided that, ‘‘[eJach
State shall have the primary responsibility for assur-
ing air quality within the entire geographic area com-
prising each State. ...’’ §107(a) (emphasis supplied).
Congress also declared, in § 101(a) (3), that “the pre-
- vention and control of air pollution at its source is the
primary responsibility of States and local govern-
ments.’’ This Court has recognized that ‘‘the primary
responsibility for formulating pollution control strat-
egies [is] on the States. . . .”’ Union Electric Co. v.
E.P.A., 427 U.S. 246, 256 (1976). Accord, Hancock v.
Train, 426 U.S. 167, 181 (1976).
Despite the clarity of §101(a)(3) and §107(a) of
the Act in this regard, the Administrator attempted
to justify his withdrawal of the States’ authority and
his grant of powers to the Federal land managers and
Indian governing bodies in the following terms:
This approach is consistent with section 118 of the
Clean Air Act (42 U.S.C. 1857f) which requires
that Federal agencies 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 indicates the Congress
intended to preclude the Federal Government from
meeting more restrictive standards than are im-
posed by the States, 39 Fed. Reg. 42513 (Dee. 5,
1974). (A.222a).
This Court recently had occasion to construe $118
of the Clean Air Act in Hancock v. Train, 426 US.
167 (1976). That section of the Act directs federal
facilities to ‘‘comply with Federal, State, interstate,
and local requirements respecting control and abate-
ment of air pollution to the same extent that any per-
38
son is subject to such requirements”? (emphasis sup-
plied). And although the Court held that §118 does
not require existing federal facilities to obtain State
permits in order to continue operations, it acknowl-
edged that §118 of the Clean Air Act ‘‘makes it the
duty of federal facilities to comply with state-estab-
lished air quality and emission standards.’’ Hancock
v. Train, supra, 426 U.S. at 183 (emphasis supplied).
The Court pointed out:
There is agreement that §118 obligates existing
federal installations to join nonfederal sources in
abating air pollution, that comparable federal and
nonfederal sources are expected to achieve the
same levels of performance in abating air pollu-
tion, and that those levels of performance are set
by the States. Id. at 182-183. (emphasis supplied).
The regulations, by empowering Federal land man-
agers to redesignate Federal lands independent of
State control, not only are contrary to the explicit pro-
visions of § 101(a)(3) and § 107(a), they also are con-
trary to both the letter and the spirit of § 118, as inter-
preted by this Court in Hancock. By treating Federal
land managers as superior to ‘“‘any person”’ that is sub-
ject to State requirements, the regulations violate
§ 118’s explicit directives that Federal land managers
engaged in any activity which may result in the dis-
charge of air pollutants be treated ‘‘the same” as ‘‘any
person.”’ And it is no answer that there is nothing in
the Act ‘‘that indicates the Congress intended to pre-
clude the Federal government from meeting more re-
strictive standards than are imposed by the States.”’
There is much in the Act that makes it clear that it is
for the States and not the Federal government to
choose, if they wish, to impose standards more restric-
39
tive than the national standards, e.g., §§ 116, 101(a)
(3) and 107(a).”
In any event, it is clear from the Administrator’s
own description of the regulations’ impact that far
more power is delegated to the Federal land managers
(and Indian governing bodies) than merely the oppor-
tunity to set for themselves ‘‘more restrictive stand-
ards than are imposed by the States.’’ Indeed, under
the regulations, Federal land managers and Indian
governing bodies can substantially influence and even
‘‘dictate’’ land uses not only on Federal and Indian
lands, but also on State, local and private lands.
This ability to control land use in surrounding areas
was acknowledged by the Administrator upon promul-
gation of the final significant deterioration regula-
tions:
[B]ecause of the small air quality increments
specified for Class I areas, these levels can be vio-
lated by a source 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 violate the Class I
increment for SO: 60 or more miles away. Under
the regulations promulgated below, a source could
not be allowed to construct if it 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. Therefore, wherever a Class I area
adjoins a Class II or III area, the potential
growth restrictions, especially for power plant
28 Since Indian governing bodies are not accorded preferential
treatment under the Act, they also are subject to State require-
ments. A ‘‘general Act of Congress appl[ies] to Indians as well as
to all others in the absence of a clear expression to the contrary.”’
Federal Power Com’s. v. Tuscarora, 362 U.S. 99, 120 (1960).
40
development, extends well beyond the Class I
boundaries into the adjacent areas. . .. [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 1 by the adjoining Class I area
rather than the Class II or III increment. 39 Fed.
Reg. 42512 (Dec. 5, 1974) (emphasis supplied).
(A.218a-219a).
The ‘‘Technical Support Document—EPA Regula-
tions for Preventing the Significant Deterioration of
Air Quality,’? January 1975, (R.93-211), mirrors the
Administrator’s view of December 5, 1974 that con-
struction of a power plant in a Class II area can vio-
late the Class I increment 60 miles away, (R. 127), and
reaffirms that ‘‘permissible siting of new sources will
be dictated by the adjoining Class I rather than the
Class II or IIT inerement’’ (R. 129).
Reference 15 to the Technical Support Document
(EPA memo, Aug. 12, 1974) (R. 194) predicts that
impact on Class I areas will be even greater:
It should be noted that a power plant in the size
ranges discussed here [1,000 MW] may endanger
a Zone I increment for a distance of 80 miles
— under poor dispersion condition. (R.
* * *
[I]t was determined that a plant which just meets
the Zone II increment, may exceed the Zone I
increment for a distance as great as 80 miles down-
wind. Thus it appears that such a power plant
should not be located any closer than 80 miles
from the nearest Zone I boundary. Jd. at 102.
And according to Reference 16 (EPA memo, Oct. 15,
1974) (R. 202-205),
41
it can be concluded that it is reasonable to expect
a 1,000 MW plant meeting NSPS to endanger the
Zone I SO: increment to a distance of 50-60 miles
downwind. For larger plants located for example
in a Zone III area this increment will be endan-
gered for greater distances downwind. (R. 203).
The consequences of a Class I area designation
which makes it possible to ‘‘dictate’’ land use 60 and
more miles away from the Class I border have severe
ramifications regarding the control and planning of
land use. For many western states, the impact of the
regulations is that Federal land managers and Indian
governing bodies are now able to occupy a primary, if
not the primary role in controlling a State’s land use.
This usurpation of State land use control is exempli-
fied in the four states—Utah, Idaho, Colorado and
Wyoming—in which petitioners herein operate elec-
tric generating units. The figures in the table below
show the far-reaching extent of Federal and Indian
land holdings within the four states.
Federal &
Federal Indian Indian
Lands As Lands As Lands As
Federal Percentage Indian Percentage Percentage
State Acreage 2+ Of State Acreage 2° Of State Of State ;
Utah 34,882,460 66% 2,274,391 4% 70%
Colorado 23,973,450 36% 755,163 1% 27%
Wyoming 29,927,861 48% 1,886,329 3% 51%
Idaho 33,732,820 64% 795,419 1% 65%
2* United States Department of Interior, Bureau of Land Man-
agement, Public Land Statistics, Table 7 (1975).
25 United States Department of Interior, Bureau of Indian Af-
fairs, Annual Report of Indian Lands, Acreage as of September 30,
1976 (to be published).
42
The effect of these pervasive Federal and Indian
land holdings is even more dramatic than the figures
themselves indicate. In the western States especially,
State and private lands are virtually engulfed by the
Federal and Indian lands, as the U.S. Department of
the Interior, Federal Lands Map vividly portrays.
See Appendix C, infra. The significance of that fact
for present purposes is that in such States, virtually
all non-Federal or non-Indian lands are well within
the 60-100 mile distance from Federal or Indian lands
and would therefore be subject to the ‘‘drift factor’’
limitations described by EPA in the materials quoted
above. Indeed, in the States of Utah and Idaho no
point on State, local or private land is farther than 20
miles from a Federal or Indian land border.“ Given
the ability to ‘‘dictate’’ land use 60 or more miles be-
yond a particular Class I area, the redesignation proc-
ess reposes in Federal land managers and Indian
governing bodies the authority and power over State,
municipal and private land use in virtually the entire
States of Utah and Idaho and the entire western
halves of the States of Colorado and Wyoming.
Any notion that this redesignation power of the
Indian governing bodies and the Federal land man-
agers is theoretical should be dispelled by the recent
proposal of the Northern Cheyenne Tribal Council to
redesignate the Northern Cheyenne Indian Reserva-
tion in Montana to Class I pursuant to EPA’s regula-
tions for prevention of significant deterioration. That
*° Although Federal and Indian lands occupy a somewhat smaller
percentage of total land area in Wyoming and Colorado than in
Utah and Idaho, such holdings in Wyoming and Colorado are heav-
ily concentrated in the western sectors of those two States. See
Appendix C, infra.
43
redesignation proposal is the subject of a proposed
EPA rule as to which interested parties have been
invited to comment. 42 Fed. Reg. 21819 (April 29,
1977). In its disenssion of the Cheyenne redesignation
proposal EPA notes that:
is li that coal-fired power plants and coal
Sten Tocilities would be impacted at least to
the extent that their impact on the Class I incre-
ment would affect decisions on siting and pollution
control equipment.
The analysis submitted with the request pre-
i impacts of several energy utilization
pa oe on air quality levels on the reserv«tion,
and indicates that facilities located near the reser-
vation would violate the Class I increment within
reservation borders. Id. at 21820. (emphasis sup-
plied).
PA has expressed its “‘preliminary judgment”’
on in Bs redesignation of the Northern Chey-
enne Indian Reservation to Class I, the Northern
Cheyenne Tribal Council has ‘‘‘not acted arbitrarily
or capriciously in their action and have properly con-
sidered regional and national interests.’’ Id. It is
worth noting that although the Northern Cheyenne
Indian Reservation is located within the State of Mon-
tana, the Governor of the State of Wyoming registered
that State’s opposition to the Cheyenne redesignation
request ‘“‘because it would predetermine the level of
development possible in parts of Northern Wyoming.
Several coal conversion plants are being seriously con-
sidered in that area. The decision as to whether or not
these plants and other possible developments should
be allowed is one that ought to be made by the people
of Wyoming, not by persons in Montana nor Wash-
44
ington, D.C.’’* In short, the Northern Cheyenne Tri-
bal Council ’s currently pending redesignation pro-
posal is a realistic demonstration of the fact that
EPA’s regulations allow Federal land managers and
Indian governing bodies to oceupy roles in land use
planning and decision-making that even EPA acknowl-
edges ‘‘[t]raditionally . . . have been considered the
prerogative of local and State governments.’’ (39 Fed.
Reg. 31001) (Aug. 27, 1974) (A.167a).
Thus, the powers granted by EPA’s regulations to
Federal land managers and Indian governing bodies
not only violate the Clean Air Act, but they radically
alter the Federal-State relationship governing land
45
CONCLUSION
For the foregoing reasons, the judgment of the court
of appeals should be reversed, and the regulations
held invalid in their entirety as unauthorized by the
Clean Air Act. If this Court holds that the nonde-
terioration regulations are authorized by the Clean
Air Act, it should declare invalid that portion of the
regulations granting redesignation authority to the
Federal land managers and Indian governing bodies
as being in violation of the Clean Air Act.
Respectfully submitted,
COUNSEL FOR PETITIONERS
use without any legislative authority whatsoever. Uran Power & Licnt CoMPANY
Pustic Service CoMPANY OF COLORADO
Cotorapo-UTe Execrric Association, Inc.
Puatre River Power AUTHORITY
CHEYENNE Lieut, FvEL AND PowER COMPANY
Gerry LEVENBERG Uran Power & Lieut Company
Tuomas A. Karon
Sipney G. Baucom
LEONARD, COHEN AND GETTINGS Vert R, TopHaM
1700 Pennsylvania Avenue, N.W.
Washington, D. C, 20006 P. O. Box 899
Salt Lake City, Utah 84110
Pusuic Service CoMPANY OF COLORADO
CHEYENNE LIGHT, FUEL AND Power COMPANY
Bryant O’DONNELL PLATTE River Power AUTHORITY
Keiy, Stansrietp & O’DONNELL Moses, WiTTeMyYER and Harrison, P.C.
550 Fifteenth Street 250 Arapahoe Avenue
Denver, Colorado 80202 Boulder, Colorado 80302
CoLorapo-Utse Exectric Association, Inc.
Gmts KruMins
* Letter from Governor Ed Herschler to Mr, Allen Rowland, P.O. Box 1149
— Northern Cheyenne Tribe (Jan. 28, 1977), Appendix B, Montrose, Colorado 81401
wmyra.
APPENDIX
eee
la
APPENDIX A
Relevant excerpts from the Clean Air Act, as amended,
42 U.S.C. § 1857 et sey., are as follows:
§ 1857. [§ 101.] Congressional findings; purposes of
subchapter
(a) The Congress finds—
(3) that the prevention and control of air pollution
at its source is the primary responsibility of States
and local governments .. .
(b) The purposes of this subchapter are—
(1) to protect and enhance the quality of the Na-
tion’s air resources so as to promote the public health
and welfare and the productive capacity of its popu-
lation. ...
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§ 1857c—2. [§107.] Air quality control regions—
Responsibility of State for air quality; submission of
implementation plan
(a) Each 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
mamner in which national primary and secondary am-
bient air quality standards will be achieved and main-
tained within each air quality control region in such
State.
(b) For purposes of developing and carrying out
implementation plans under section 110—
(1) an air quality control region designated under
this section before tle date of enactment of the Clean
Air Amendments of 1970, or a region designated after
i
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such date under subsection (c), shall be an air quality
control region; and
(2) the portion of such State which is not part of
any such designated region shall be an air quality con-
trol region, but such portion may be subdivided by the
State into two or more air quality control regions with
the approval of the Administrator.
§ 1857c—3. [§ 108.] Air quality criteria and control
techniques—Air pollutant list; publication and revi-
sion by Administrator; issuance of air quality criteria
for air pollutants
(a)(1) For the purpose of establishing national pri-
mary and secondary ambient air quality standards,
the Administrator shall within 30 days after December
31, 1970, publish, and shall from time to time there-
after revise, a list which includes each air pollutant—
(A) which in his judgment has an adverse ef-
fect on public health or welfare;
(B) the presence of which in the ambient air
results from numerous or diverse mobile or sta-
tionary sources; and
(C) for which air quality criteria had not been
issued before December 31, 1970, but for which he
plans to issue air quality criteria under this
section.
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§ 1857c—4. [§ 109.] National primary and secondary
— air quality standards; promulgation; proce-
ure
(a)(1) The Administrator—
(A) within 30 days after December 31, 1970,
shall publish proposed regulations prescribing a
national primary ambient air quality standard
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and a national secondary ambient air quality
standard for each air pollutant for which air
quality criteria have been issued prior to such
date; and
(B) after a reasonable time for interested per-
sons to submit written comments thereon (but no
later than 90 days after the initial publication of
such proposed standards) shall by regulation pro-
mulgate such proposed national primary and
secondary ambient air quality standards with
such modifications as he deems appropriate.
(2) With respect to any air pollutant for which air
quality criteria are issued after December 31, 1970,
the Administrator shall publish, simultaneously with
the issuance of such criteria and information, pro-
posed national primary and secondary ambient air
quality standards for any such pollutant. The proce-
dure previded for in paragraph (1)(B) of this sub-
section shall apply to the promulgation of such
standards.
(b)(1) National primary ambient air quality stand-
ards, prescribed under subsection (a) of this section
shall be ambient air quality standards the attainment
and maintenance of which in the judgment of the
Administrator, based on such criteria and allowing an
adequate margin of safety, are requisite to protect the
public health. Such primary standards may be revised
in the same manner as promulgated.
(2) Any national secondary ambient air quality
standard prescribed under subsection (a) of this sec-
tion shall specify a level of air quality the attainment
and maintenance of which in the judgment of the Ad-
ministrator, based on such criteria, is requisite to pro-
tect the public welfare from any known or anticipated
adverse effects associated with the presence of such
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air pollutant in the ambient air. Such secondary
standards may be revised in the same manner as pro-
mulgated.
§ 1857c—5. [§110.] State implementation plans for
national primary and secondary ambient air quality
standards—Submission to Administrator; time for
submission; State procedures; required contents of
plans for approval by Administrator; approval of
revised plan by Administrator
(a)(1) Each State shall, after reasonable notice and
public hearings, adopt and submit to the Adminis-
trator, within nine months after the promulgation of
a national primary ambient air quality standard (or
any revision thereof) under section 1857e—4 of this
title for any air pollutant, a plan which provides for
implementation, maintenance, and enforcement of such
primary standard in each air quality control region
(or portion thereof) within such State. In addition,
such State shall adopt and submit to the Adminis-
trator (either as a part of a plan submitted under the
preceding sentence or separately) within nine motnhs
after the promulgation of a national ambient air qual-
ity secondary standard (or revision thereof), a plan
which provides for implementation, maintenance, and
enforcement of such secondary standard in each air
quality control region (or portion thereof) within
such State. Unless a separate public hearing is pro-
vided, each State shall consider its plan implementing
such secondary standard at the hearing required by
the first sentence of this paragraph.
(2) The Administrator shall, within four months
after the date required for submission of a plan under
paragraph (1), approve or disapprove such plan or
each portion thereof. The Administrator shall approve
such plan, or any portion thereof, if he determines
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that it was adopted after reasonable notice and hear-
ing and that—
(A)(i) in the case of a plan implementing a
national primary ambient air quality standard, it
provides for the attainment of such primary
standard as expeditiously as practicable but (sub-
ject to subsection (e) of this section) in no case
later than three years from the date of approval
of such plan, or any revision thereof to take ac-
count of a revised primary standard); and (ii) in
the case of a plan implementing a national secon-
dary ambient air quality standard it specifies a
reasonable time at which such secondary standard
will be attained;
(B) it includes emission limitations, schedules,
and timetables for compliance with such limita-
tions, and such other measures as may be neces-
sary to insure attainment and maintenance of
such primary or secondary standard, including,
but not limited to, land-use and transportation
controls;
(C) it includes provision for establishment and
operation of apprepriate devices, methods, sys-
tems, and procedures necessary to (i) monitor,
compile, and analyze data on ambient air quality
and, (ii) upon request, make such data available
to the Administrator;
(D) it includes a procedure, meeting the re-
quirements of paragraph (4), for review (prior to
construction or modification) of the location of
new sources to which a standard of performance
will apply;
(E) it contains adequate provisions for inter-
governmental cooperation, including measures
necessary to insure that emissions of air pollu-
itm ome moma
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tants from sources located in any air quality con-
trol region will not interfere with the attainment
or maintenance of such primary or secondary
standard in any portion of such region outside of
such State or in any other air quality control
region;
(F) it provides (i) necessary assurances that
the State will have adequate personnel, funding,
and authority to carry out such implementation
plan, (ii) requirements for installation of equip-
ment by owners or operators of stationary sources
to monitor emissions from such sources, (iii) for
periodic reports on the nature and amounts of
such emissions; (iv) that such reports shall be
correlated by the State agency with any emission
limitations or standards established pursuant to
this chapter, which reports shall be available at
reasonable times for public inspection; and (v)
for authority comparable to that in section 1857h
—1 of this title, and adequate contingency plans
to implement such authcrity;
(G) it provides, to the extent necessary and
practicable, for periodic inspection and testing
of motor vehicles to enforce compliance with ap-
plicable emission standards; and
(H) it provides for revision, after public hear-
ings, of such plan (i) from time to tile as may
be necessary to take account of revisions of such
national primary or secondary ambient air qual-
ity standard or the availability of improved or
more expeditious methods of achieving such pri-
mary or secondary standard; or (ii) whenever the
Administrator finds on the basis of information
available to him that the plan is substantially
inadequate to achieve the national ambient air
quality primary or secondary standard which it
implements,
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(3)(A) The Administrator shall approve any revi-
sion of an implementation plan applicable to an air
quality control region if he determines that it meets
the requirements of paragraph (2) and has been
adopted by the State after reasonable notice and
public hearings.
(B) As soon as practicable, the Administrator shall,
consistent with the purposes of this chapter and the
Energy Supply and Environmental Coordination Act
of 1974, review each State’s applicable implementation
plans and report to the State on whether such plans
can be revised in relation to fuel burning stationary
sources (or persons supplying fuel to such sources)
without interfering with the attainment and mainte-
nance of any national ambient air quality standard
within the period permitted in this section. If the
Administrator determines that any such plan can be
revised, he shall notify the State that a plan revision
may be submitted by the State. Any plan revision
which is submitted by the State shall, after public
notice and opportunity for public hearing, be ap-
proved by the Administrator if the revision relates
only to fuel burning stationary sources (or persons
supplying fuel to such sources), and the plan as
revised complies with paragraph (2) of this sub-
section. The Administrator shall approve or disap-
prove any revision no later than three months after
its submission.
(4) The procedure referred to in paragraph (2)(D)
for review, prior to construction or modification, of
the location of new sources shall (A) provide for
adequate authority to prevent the construction or
modification of any new source to which a standard of
performance under section 1857c—6 of this title will
apply at any location which the State determines will
prevent the attainment or maintenance within any air
quality control region (or portion thereof) within
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such State of a national ambient air quality primary
or secondary standard, and (B) require that prior to
commencing construction or modification of any such
source, the owner or operator thereof shall submit to
such State such information as may be necessary to
pesrmit the State to make a determination under
clause (A).
Extension of period for submission of plan imple-
menting national secondary ambient air qualit
standard —
( b) The Administrator may, wherever he deter-
mines necessary, extend the period for submission of
any plan or portion thereof which implements a na-
tional secondary ambient air quality standard for a
period not to extend 18 months from the date other-
wise required for submission of such plan.
Preconditions for preparation and publication by Ad-
ministrator of proposed regulations setting forth
an implementation plan; hearings for proposed
regulations; promulgation of regulations by Ad-
ministrator; transportation regulations study and
report; parking surcharge; suspension authority
(c)(1) The Administrator shall, after consideration
of any State hearing record, promptly prepare and
publish proposed regulations setting forth an imple-
mentation plan, or portion thereof, for a State if—
(A) the State fails to submit an implementa-
tion plan for any national ambient air quality
primary or secondary standard within the time
prescribed,
(B) the plan, or any portion thereof, submitted
for such State is determined by the Administra-
tor not to be in accordance with the requirements |
of this section, or
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(C) the State fails within 60 days after notifi-
cation by the Administrator or such longer period
as he may prescribe, to revise an implementation
plan as required pursuant to a provision of its
plan referred to in subsection (a)(2)(H) of this
section.
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§ 1857c—6. [§111.] Standards of performance for
new stationary sources—Definitions
(a) For purposes of this section:
(1) The term “standard of performance’’ means
a standard for emissions of air pollutants which re-
flects the degree of emission limitation achievable
through the application of the best system of emission
reduction which (taking inte account the cost of
achieving such reduction) the Administrator deter-
mines has been adequately demonstrated.
(2) The term ‘‘new source’’ means any stationary
source, the construction or modification of which is
commenced after the publication of regulations (or,
if earlier, proposed regulations) prescribing a stand-
ard of performance under this section which will be
applicable to such source.
(3) The term “stationary source’ means any build-
ing, structure, facility, or installation which emits or
may emit any air pollutant.
(4) The term ‘‘modification’’ means any physical
change in, or change in the method of operation of,
a stationary source which increases the amount of
any air pollutant emitted by such source or which
results in the emission of any air pollutant not pre-
viously emitted.
(5) The term “owner or operator” means any per-
son who owns, leases, operates, controls, or supervises
a stationary source.
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(6) The term ‘‘existing source’ means any station-
ary source other than a new source.
Publication and revision by Administrator of list of
of categories of stationary sources; inclusion of
category in list; publication of proposed regulations
by Administrator establishing standards for new
sources within category; promulgation and revision
of standards; differentiation within categories of
new sources; issuance of information on pollution
control techniques; applicability to new sources
owned or operated by United States
(b)(1)(A) The Administrator shall, within 90 days
after December 31, 1970, publish (and from time to
time thereafter shal] revise) a list of categories of
stationary sources. He shall include a category of
sources in such list if he determines it may contrib-
ute to the endangerment of public health or welfare.
§ 1857d—1. [§ 116.] Retention of State authority
Except as otherwise provided in sections 1857e—10(c),
(e), and (f), 1857f—6a, 1857—6e (c)(4), and 1857f—11
of this title (preempting certain State regulation of mov-
ing sources) nothing in this chapter shall preclude or
deny the right of any State or political subdivision there-
of to adopt or enforce (1) any standard or limitation
respecting emissions of air pollutants or (2) any require-
ment respecting control or abatement of air pollution;
except that if an emission ‘standard or limitation is in
effect under an applicable implementation plan or under
section 1857e—6 or section 1857c—7 of this title, such
State or political subdivision may not adopt or enforce
any emission standard or limitation which is less stringent
than the standard or limitation under such plan or section.
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§ 1857f. [§ 118.] Control and abatement of air pollution
from Federal facilities: compliance of Federal depart-
ments, etc., with Federal, State, interstate, and local re-
quirements; exemption by President of any emission
source from any executive branch department, etc.; report
to Congress
Each department, agency, . 1d 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 com-
ply with Federal, State, interstate, and local requirements
respecting control and abatement of air pollution to the
same extent that any person is subject to such require-
ments. ...
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WyYomIna
Executive DePaRTMENT
CHEYENNE
Ep Herscu.er, Governor
January 28, 1977
Mr. Allen Rowland _
President, Northern Cheyenne Tribe
P.O. Box 128
Lame Deer, Montana 89043
Dear Mr. Rowland:
Regarding the Northern Cheyenne Air Quality Redesig-
nation Report and Request, please be advised that the
State of Wyoming is opposed to such redesignation be-
cause it would pre-determine the level of development
possible in parts of Northern Wyoming. Several coal con-
version plants are being seriously considered in that area.
The decision as to whether or not these plants and other
possible developments should be allowed is one that ought
to be made by the people of Wyoming, not by persons in
Montana nor Washington, D.C.
With our Industrial Siting Act and air quality regula-
tions, we have the mechanisms to insure that the impacts
from such projects will be minimized and, through previ-
ous decisions and policies, we have demonstrated our de-
termination to enforce these laws.
Yours sincerely,
/s/ Ev HerscHLer
Ed Herschler
EH/alr
ee: Randolph Wood, Department of
Environmental Quality
Environmental Protection Agency
Washington, D.C.
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.