# Petitioners Brief — Mont. Power Co. v. U.S.E.P.A. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1663%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1977 - **Citation:** 430 U.S. 953 ## Text 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