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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 953

## Text

MAY 12 1977,

Supreme Court af 1 the ‘Ruited, States, IR, CLERK

Octoszr Tzrm, 197

No. 76-52 76-529
Montana Power Company, ET AL., Petitioners,

v.
Untrep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 76-585
AMERICAN PrerrRoLeuM INsTITUTE, ET AL., Petitioners,

v.
Untrep States ENVIRONMENT. L PROTECTION AGENCY, ET AL.

No. 76-594

InpiaANA-KENTUCKY ELzcTric CoRPORATION, ET AL., Petitioners,
v.
Unirep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 76-603

AuaBAMA Power CoMPANY, ET AL., Petitioners,
v.
Unrrep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 76-619

Uran Power & Licut Company, et AL., Petitioners,
v.
Untrep States ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 76-620

Western Enercy Suppiy AND TRANSMISSION ASSOCIATES, ET AL.,
wher wtn

Unrrep States enbieteete PRorecTion AGENCY, ET AL.

On Writs of Certiorari to the United States Court of Appeals
for the District of Columbia Circuit

BRIEF FOR THE STATE OF UTAH
AS AMICUS CURIAE

Rosert B. Hansen,
Attorney General

Wun C. Quieter,
Assistant Attorney General

me Strate or Uran
Capitol Build
t Lake City, Utah 84114

Passes of Byron 8S. Apams Paivtina, Inc., Wasnimeton, D. C.

INDEX

Page
Tue INTEREST OF THE State or UTAH ................ 2
i Eh ee ce ep ewendeonsbedenenea 3

I. Congress Did Not Authorize EPA To Impose
‘*Nondeterioration’’ Requirements On The States 4

Il. Legislative History Provides No Support For Any
““Nondeterioration” PEED ccc ccesesess 10

III. The Regulations Abrogate The Responsibility And
Authority Which The Clean Air Act Granted To
The States By Providing For Redesignation Of
Federal And Indian Lands Independently Of State
ET ude neduie.peeaboee dodcsresavaucpceacens 13

A. The States Have The Primary Responsibility
For Assuring Air Quality Within Their Geo-
SE ED ci. nicece cebicccessccessvecees 13

B. The Regulations Have The Operative Effect Of
Divesting The State Of Utah Of Control Over

Its Ambient Air Quality ................206. 14

IV. The Regulations Prejudice Sound Air Quality Man-
GOED 6.00 bu edccdscewisccrccccncccccceccees 17
GHTRIIIEE oc cncecccenccvnccccscccecceseccccecoces 20

TABLE OF AUTHORITIES

CasEs:
Hancock v. Train, 426 U.S. 167 (1976) ........ 8, 9, 13, 17
Packard Motor Co. v. NLRB, 330 U.S. 485, (1947) .... 11

Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D.D.C.
1972), aff’d per curiam 4 E.R.C. 1815 (1972), aff’d
an equally divided Court sub nom Fri v. Sierra

CR, See a WE CUD occ tanpeccscccccecsess 4,5
Train v. Natural Resources Def. Council, 421 U.S. 60
SEE: okGind Wa Cheass cusenctceetand a 8, 9, 13, 17

Union Electric Co. v. EPA, 427 U.S. 246 (1976) . 8,9, 13,17
United States v. Oregon, 366 U.S. 643 (1961) ........ 11

il Table of Authorities Continued

STATUTE : Page
Clean Air Act
42 U.S.C. § 1857(b)(1), $ 101(b)(1) ............. 4,6
42 U.S.C, § 1857(a) (3), §101(a)(3) ......... 6, 11,13
42 U.S.C. § 1857¢-2(a), § 107(a) ...........46.. 13, 17
Fe ee I DD 6 cee cccnccccocsccectesn 7
ey ETE b dnccccecuvececéccses 7, 8,9
eR inc cidcc kcbuuted cecénes 7
. Sete Eh IG MEE occ cccesccnseticcossese 7
TE 6 cb nd gee ebeeeneee 6 cee 10
ey ED cw ceca cbccdcacusacecs 10
12 U S.C. § 1857f-Ge(e) (4), § 211(e)(4) .......... 10
a ye I IIE binas wnececisesvscncne 10
REGULATIONS :
Cg er ee 5
SP Sra SOIEID hc cke: cc covcceesoces 3, 14, 15
SP Ge SOE cvvce cevetevceccttdcscses 15
39 Fed. Reg. 31001 (August 27, 1974) ............... 14
39 Fed. Reg. 42512 (Dec. 5, 1974) ..............006- 15, 16

CONGRESSIONAL MATERIALS:

Il. Rep. No. 91-1146, 91st Cong., 2d Sess. (1970) ...... 11
S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) .... 11,12
H. Conf. Rep. No. 91-1783, 91st Cong., 2d Sess. (1970) . 12
116 Cong. Ree. 19205, 19220, 42384 (1970) ............ 12
116 Cong. Rec. 32903, 42386 (1970) ..............00. 18

Hearings Before a Senate Public Works Subcommittee
on Implementation of the Clean Air Act Amend-
ments of 1970, 92d Cong., 2d Sess. 273-74 (1972) . 12

Senate Committee of Public Works, 93d Cong., 2d Sess.,
A Legislative History of the Clean Air Amend-

ments of 1970 (Comm. Print 1974) ............ 13, 14
MISCELLANEOUS!
Bureau of Land Management, Public Land Statistics
PERE ¢ecceucSusn Si Nensees GGbkusesesadb bans 16

Utah Code of Air Conservation Regulations .......... 19

EO

=— ~—3<r— --c —

ee

IN THE

Supreme Court of the United States

Ocroser TeRM, 1976

No. 76-529
Montana Power COMPANY, ET. AL., Petitioners,
v.
Untrep States ENVIRONMENTAL PROTECTION AGENCY, ET. AL.

No. 76-585
AMERICAN PETROLEUM INSTITUTE, ET. AL., Petitioners,
Vv.
Unitrep States ENVIRONMENTAL PROTECTION AGENCY, ET. AL.

No. 76-594
INDIANA-KENTUCKY ELECTRIC CORPORATION, ET. AL., Petitioners,
v.
Unrrep States CNVIRONMENTAL PROTECTION AGENCY, ET. AL.

No. 76-603
ALABAMA Power CoMPANY, ET. AL., Petitioners,
v.
Unirep States ENVIRONMENTAL PROTECTION AGENCY, ET. AL.

No. 76-619
Urtan Power & Licut ComMPANY, ET. AL., Petitioners,
v.
Untrep States ENVIRONMENTAL PROTECTION AGENCY, ET. AL.

No. 76-620
WesTERN Enercy SupPLy AND TRANSMISSION ASSOCIATES, ET. AL.,
Petitioners,
v.
Unrrep States ENVIRONMENTAL PROTECTION AGENCY, ET. AL.

On Writs of Certiorari to the United States Court of Appeals
for the District of Columbia Circuit

BRIEF FOR THE STATE OF UTAH
AS AMICUS CURIAE

2

The State of Utah, appearing by its undersigned
Attorney General, respectfully tenders this brief as
amicus curiae for the consideration of the Court. The
State supports the position presented by Petitioners
and urges this Court to reverse the decision of the
United States Court of Appeals for the District of
Columbia Circuit in this ease.

THE INTEREST OF THE STATE OF UTAH

The State of Utah is directly and adversely affected
by the decision of the court below. That decision would
divest the State of its right, granted by the Clean Air
Act, to determine whether and to what extent pollu-
tion-control measures more stringent than the national
air quality standards should be enforced within its
borders. As a result, the decision would greatly re-
duce the pollution-control options available to the
State and would seriously interfere with the State’s
execution of the air quality management responsibili-
ties vested in it by Congress.

Moreover, the decision poses a threat to the eco-
nomic development of substantial areas within the
State of Utah. With the exceptions of Alaska and
Nevada, federal land ownership is more extensive in
the State of Utah than in any other state. Under the
prevention of significant deterioration regulations
promulgated by the Environmental Protection Agency
the State of Utah is deprived of its primary responsi-
bility under the Clean Air Act to control ambient air

a

a

3

quality within its boundaries. Specifically, 40 C.F.R.
§ 52.21(c) (3) (iv) of the regulations has the effect of
delegating control of all lands within the State to
Federal land managers. Thus, Utah’s ability to con-
trol its land use and economic development is substan-
tially impaired, if not abrogated. The State has a clear
interest in seeking reversal of the decision below.

ARGUMENT

The ruling of the lower court is in fundamental con-
flict with Congress’s determination concerning the re-
spective roles of the Federal Government and the
States in combatting air pollution. The Clean Air Act
as amended in 1970 establishes a carefully balanced
regulatory scheme: the Federal Government is to es-
tablish uniform ambient air quality standards for the
protection of public health and welfare; and each
State is to develop and implement a plan for achieving
those standards or, if it sees fit, more stringent stand-
ards. The lower court has decreed a clear departure
from this pattern by holding that the Federal Govern-
ment is authorized by the Clean Air Act to disapprove
State implementation plans for failure to provide for
the prevention of significant deterioration and to pro-
mulgate regulations amending State plans to provide
for such prevention. The lower court also permitted
to stand regulations that grant to Federal land man-
agers and Indian governing bodies the authority to re-
designate Federal and Indian lands within the respec-

4

tive States. There is no basis whatever in the Act, its
legislative history, or decisions of this Court interpret-
ing the Clean Air Act for such interference with the
States’ performance of the air quality control fune-
tious assigned them by Congress.

I. Congress Did Not Authorize EPA To Impose “Nondeterioration”
Requirements On The States

The lower court was unable to find any express stat-
utory support for its holding that the Administrator
of EPA must disapprove any State implementation
. plan that does not preclude significant deterioration
of air quality. The sole statutory provision on which
it based its decision was Section 101(b)(1) of the
Clean Air Act, 42 U.S.C. § 1857(b) (1), which declares
one of the purposes of the Act to be |

to protect and enhance the quality of th i
e Nation’
alr resources so as to promote the publie ‘health

and welf : , ;
canes oa the productive capacity of its

From these words the district court in Sierra

Ruckelshaus, 344 F.Supp. 253 (D.D.C. 1972) een
a Congressional ‘intent to improve the quality of the
nation 8 air and to prevent deterioration of that air
quality” and declared invalid an EPA regulation that
required only that State implementation plans ‘‘be
adequate to prevent . . . ambient pollution levels

5

from exceeding . . . [the applicable] secondary stand-
ard” 40 C.F.R. §51.12(b). The court’s conclusion that
the Administrator must require States to prevent de-
terioration in the quality of air that exceeds national
standards, although there is no provision in the Clean
Air Act to that effect, was affirmed per curiam by the
lower court, 4 E.R.C. 1815 (1972), and by an equal
division of this Court, sub nom Fri v. Sierra Club, 412

U.S. 541 (1973).

The regulations promulgated by the Administrator
pursuant to the court’s order in the Ruckelshaus liti-
gation was upheld by the lower court despite its ac-
knowledgement that ‘‘prohibition of significant de-
terioration of air cleaner than the national standards
is not an express requirement of the Act’’ (A.46a-47a).’
The court based its decision on its perception from
‘the legislative history of the Clean Air Act of 1970,
a clear understanding that the Act embodied « pre-
existing policy of nondeterioration of air cleaner than
the national standards” (A.55a). As we show in Part
II below, there is no support for the lower court’s
conclusion that the legislative history compels the in-
clusion of nondeterioration requirements in State im-

plementation plans.

The State of Utah submits that it is clear that in
adopting the Clean Air Act Amendments of 1970,
Congress established a regulatory scheme in which na-
tional standards would be the benchmark of air qual-
ity. Its manifest purpose was that air of relatively high
quality be ‘‘protected”’ against becoming inferior to
those standards and that air of relatively low quality

1 Reference is to the Appendix filed with this Court pursuant to
Rule 36.

6
be ‘‘enhanced”’ to at least the level of those standards.

The only ‘‘deterioration’’ prohibited by the statute is |

deterioration of air quality to the point where it would
not meet the national standards.

Moreover, the court below erred in assuming that
whatever Congressional purpose is reflected in Section
101(b)(1) is to be implemented only by mandatory
action on the part of the Federal Government. On the
contrary, in Section 101(a)(3) of the Act, 42 U.S.C.
§ 1857(a) (3), Congress found

that the prevention and control of air pollution at
its source is the primary responsibility of States
and local governments * * *.

Thus, if the Clean Air Act embodies a policy of mini-

mizing deterioration of air whose quality now exceeds
national standards, it is ‘‘the primary responsibility
of States and local governments’ to develop and im-
plement that policy, not the Administrator of EPA.
Indeed, Congress quite explicitly assigned that fune-
tion exclusively to the States.

Finally, a generalized provision such as the “‘pur-
poses’’ section of the Clean Air Act surely cannot be
read as requiring the Administrator to impose ‘‘non-
deterioration’’ standards on the States in the face of
specific, substantive provisions of the Act that deny
him that authority. Those provisions empower the Ad-
ministrator to adopt only certain specified national
standards, which do not include so-called ‘‘nondeteri-
oration”’ standards, and they authorize him to disap-
prove a State implementation plan only if it does not
make adequate provision for the attainment and main-
tenance of the national standards. The States remain
responsible for determining whether and to what ex-

7

tent more stringent standards should be enforced
within their respective jurisdictions, and al] the Act
requires of the States is that their implementation
plans ‘‘achieve and maintain’’ the national standards.

Section 109 of the Act, 42 U.S.C. § 1857c-4, directs the
Administrator of EPA to establish national primary
ambient air quality standards for the protection of
public health and national secondary ambient air qual-
ity standards for the protection of public welfare. In
addition, Sections 111 and 112, 42 U.S.C. §§ 1857c-6,
1857e-7, direct the Administrator to establish federal
standards of performance for new stationary sources
and national emission standards for hazardous air
pollutants, respectively. These are the only standards
(other than for moving sources) that Congress author-
ized the Administrator to establish, and there is noth-
ing in these provisions that could be read as contem-
plating the adoption of a ‘‘nondeterioration”’ standard
by the Administrator.

Furthermore, Section 110 of the Act, 42 U.S.C.
§ 1857e-5, requires the Administrator to approve any
State implementation plan so long as it meets eight
conditions specified in that section. These conditions
relate only to whether the State plan provides ade-
quately for the attainment and maintenance of the
national standards. They contain no direct or indirect
reference to preventing the ‘‘deterioration”’ of air
whose quality is better than the standards. In short, .
the statute neither authorizes the Administrator to
establish a ‘“‘nondeterioration’’ standard nor permits
him to disapprove a State implementation plan for
failure to include such a standard.

That State implementation plans meeting the cri-
teria imposed by Section 110 must be approved by the

8

Administrator was definitely established by this
Court’s recent decision in Train v. Natural Resources
Def. Cowneil, 421 U.S. 60 (1975). There, the Court
stated that Section 110 ‘‘quite clearly mandates ap-
pt oval of any plan which satisfies its minimum condi-
tions,’’ (id. at 71 n. 11) and that ‘‘[ujnder 110(a) (2),
the Agency is required to approve a state plan which
provides for the timely attainment and subsequent
maintenance of ambient air standards, and which also
satisfies that section’s other general requirements,”’
(id. at 79, emphasis by the Court).

The Train decision that the Act requires EPA to
approve State implementation plans and plan revi-
sions which provide ‘‘for the timely attainment and
subsequent maintenance of ambient air standards”’ has
been explicitly approved in two subsequent decisions
of this Court, Hancock v. Train, 426 U.S. 167 (1976),
and Union Electric Co. v. EPA, 427 U.S. 246 (1976).
In Union Electric Co., this Court pointed out that see-
tion 110(a) (2):

. Sets out eight criteria that au implementation
plan must satisfy, and provides that if these cri-
teria are met and if the plan was adopted after
reasonable notice and hearing, the Administrator
‘shall approve’ the proposed state plan. The man-
datory ‘shall’ makes it quite clear thut the Ad-
ministrator is not to be concerned with factors
other than those specified, Train v. NRDC, 421
U.S., at 71 n. 11, 79, and none of the eight factors
appears to permit consideration of technological
or economic feasibility. Nonetheless, if a basis is
found for allowing the Administrator to consider
such claims, it must be among the eight criteria,
and so it is here that the argument is focused. (427
U.S. at 257, emphasis supplied).

9

A unanimous Court held in Union Electric Co. that
courts are not to review and overturn EPA’s approval
of a State implementation plan in response to ‘‘claims
of economic and technological infeasibility’’ because
EPA itself may not ‘‘consider such claims in approv-
ing or rejecting a state implementation plan’? (477
U.S. at 256). And in Hancock this Court again ac-
knowledged that under the explicit terms of the Clean
Air Act, EPA is “‘required to approve each State’s
implementation plan as long as it was adopted after
public hearings and satisfied the conditions specified
in §110(a)(2).’’ (426 U.S. at 169-170, emphasis sup-
plied).

The court below flatly rejected this Court’s clear
and unambiguous interpretation of section 110(a) (2)
contained in the trilogy of cases in which the Court
has spoken on the issue. The lower court’s justification
for its adherence to its views of the Clean Air Act’s
commands in this regard rather than this Court’s was
that Train and Union Electric ‘‘did not consider the
issue of nondeterioration”’ (A.64a), and that critical
language repeated by the Court for the third time in
Hancock was ‘‘ (dictum)’’ (A.63a n. 39). The State of
Utah respectfully submits that there is nothing in the
mandatory language of section 110(a)(2) which this
Court interpreted in both Train and Union Electric
and reaffirmed in //ancock that in any way creates an
exception for the issue of nondeterioration of air
cleaner than the national standards.

Indeed, we believe that the case for continued appli-
eation of the plain language of section 110(a) (2) is,
if anything, an even stronger one here than was pre-
sented to the Court in either Train or Union Electric,
For although Congress mandated only attainment and

10

maintenance of the national standards, it expressly
authorized the States to establish local pollution con-
trol standards more stringent than the national stand-
ards. It did this by declaring in Section 116 of the Act,
42 U.S.C. § 1857-1, “‘the right of any State’’ to adopt
or enforce other pollution standards or limitations so
long as they are not less stringent than the national
standards. The deliberateness of this legislative action
is underscored by the fact that, at the same time Con-
gress left the possibility of bettering the national am-
bient air quality standards to the States, it specifically
preempted them from adopting standards different
from the federal emissions standards for motor ve-
hicles, aircraft and fuels, see Sections 209, 211(e) (4),
233, 42 U.S.C. §§ 1857f-6a, 1857-6e(¢c) (4), 1857f-11.

The statutory pattern could not be more clear: the
Administrator must set certain specified national air
quality standards and may disapprove State imple-
mentation plans only for failure to attain and main-
tain those standards; and the States must adopt plans
that will meet the national standards but are free to
enforce standards more stringent than the national
standards. The conscious specificity with which Con-
gress made these assignments of duties and responsi-
bilities is at war with any notion that it may have in-
tended to impose a ‘‘‘nondeterioration’”’ standard on
the States by implication. On the contrary, its inten-
tion to leave the possibility of bettering national
standards for the States to assess is perfectly apparent
from the face of the statute.

Il. Legislative History Provides No Support For Any
“Non-deterioration” Requirement
The lower court sought to bolster its holding by
referring to the legislative history of the Clean Air

)

11

Act (A.55a-62a). In view of the clear and unambiguous
manner in which Congress expressly assigned the
States and not the Administrator the function of con-
sidering whether to enforce stricter pollution-control
standards, there is no occasion for resort to legislative
history, see, e.g., Packard Motor Co. v. NLRB, 330
U.S. 485, 492 (1947); United States v. Oregon, 366
U.S. 643, 648 (1961). In any event, however, the legis-
lative history of the Clean Air Act provides no more
support for a ‘‘nondeterioration’’ requirement than
do the words of the statute themselves.

The statutory provision on which the lower court
relied, Section 101 of the Act, heeame law in 1967, 81
Stat. 485. There is not the sligittest indication any-
where in the legislative history of that wr vision that
Congress considered it as embodying a ‘““nundeteriora-
tion’’ policy, mach less as authorizing the rederal Gov-
ernment to force any such requirement on the States.
Nor did anything in the legislative lnstery of that pro-
vision qualify the Congressional jwdgment expressed
in Section 101(a)(3) that ‘‘the prevention and control
of air pollution at its source is the primary responsi-
blity of States and local governments”’’ and not the
Federal Government.

The provisions of the Clean Air Act effecting the
present allocation of pollution-control functions as be-
tween the State and Federal Governments were
adopted as part of the Clean Air Amendments of 1970,
84 Stat. 1676. The legislative history of the Amend-
ments abounds with evidence of the Congressional
purpose to leave the States free to determine whether
to adopt standards more stringent than the federal
standards, see, ¢.g., H. Rep. No. 91-1146, 91st Cong.,
2d Sess. 1, 8 (1970) ; S. Rep. No. 91-1196, 91st Cong., 2d

12

Sess. 2, 10, 15 (1970); 116 Cong. Ree. 19205, 19220,
42384 (1970). The Senate bill would actually have re-
quired the States to consider and hold hearings on
stricter standards, see S. Rep. No. 91-1196, supra, at
50, 87, but this provision was eliminated at the Senate-
House conference, see H. Conf. Rep. No. 91-1783, 91st

Cong., 2d Sess. 44 (1970). The fact that Congress thus _

deliberately refrained from requiring the States to
consider more stringent standards surely refutes the
notion that it intended to require the States to adopt
such more stringent standards.

The scraps of ‘‘legislative history’’ cited by the low- |

er court shed no light on the Congressional purpose in
adopting the Clean Air Act. The court attached special
importance to a passage on ‘‘continued maintenance
of * * * ambient air quality’’ in the Senate Report
(A.58a, quoting S. Rep. No. 91-1196, supra, at 11), but
that passage dealt with provisions in the Senate bill
that were never enacted into law, see Hearings Before
a Senate Public Works Subcommittee on Implementa-
tion of the Clean Air Act Amendments of 1970, 92d
Cong., 2d Sess. 273-74 (1972). The lower court also
placed reliance on a 1969 federal ‘‘guideline”’ and tes-
timony by certain federal officials in 1970 (A.56a n. 30.
57a) ; however, these statements were made in the oon-
text of prior legislation and earlier bills that distrib-
uted responsibilities to the States and Federal Govern-
ment in a manner quite different from the statute as
finally passed, and therefore have no probative value
for present purposes.

13

III. The Regulations Abrogate The Responsibility And Authority
Which The Clean Air Act Granted To The States By Pro-

viding For Reclassification Of Federal And Indian Lands
Independently Of State Control.

A. Tae States Have THe PRIMARY RESPONSIBILITY
For Assunrmve Am Quatiry Wrrnin THEIR GEo-

GRAPHICAL ARBAS,

Throughout the history of the Clean Air Act, Con-
gress has preserved the basic principle ‘‘that the pre-
vention and control of air pollution at its source is the
primary responsibility of States and local govern-
ments.’”’ Section 101(a)(3), 42 U.S.C. §1857(a) (3) ;
Train v. Natural Resources Def. Council, 421 U.S. 60,
64 (1975). Section 107(a), 42 U.S.C. § 1857e-2(a), pro-
vides that ‘‘fe]ach State shall have the primary re-
sponsibility for assuring air quality within the entire
geographic area comprising such State... .” As we
pointed out earlier, supra, this Court recently re-
affirmed the principle of State responsibility in Han-
cock v. Train, 426 U.S. 167 (1967) and Union Electric
Co. v. E.P.A., 427 U.S. 246 (1976).

Senator Muskie, a major proponent of the 1970
amendments to the Clean Air Act, presented to the
Senate the Conference Committee’s report amending
the Act and discussed the importance of State control :

I have been very much interested in preserving
‘local option’ features so that State and local au-
thorities would be able to pursue options among a
broad array, seeking a possible way of controlling
or preventing air pollution that is most responsive
to the nature of their air pollution problem and
most responsive to their needs. In my judgment,
the bill will give State and local authorities suffi-
cient latitude in selecting ways to prevent and con-
trol air pollution. Senate Committee on Public

14

Works, 93d Cong., 2d Sess., A Legislative History
of the Clean Air Amendments of 1970, 137 (Comm.
Print 1974) (emphasis supplied).

Section 52.21(¢)(3)(iv) of the regulations, which
provides that ‘‘the Federal Land Manager may sub-
mit to the Administrator a proposal to redesignate
any Federal lands to a more restrictive designation
than would otherwise be applicable,’’ deprives the
State of Utah from controlling and preventing air
pollution contrary to explicit provisions of the Act,
decisions of this Court, and Congressional intent.

B. Tue Recuiations Have THe Operative EFrrecr
Or Drvestinc Tue State Or Utan Or Controu
Over Its AMBIENT AIR QUALITY.

The Administrator recognized that ‘‘the Clean Air
Act places primary responsibility for the prevention
and control of air pollution on the States and local
governments’? when he proposed the significant de-

terioration regulations (39 Fed.Reg. 31001) (A.167a).
He further acknowledged that:

[a]ny policy to prevent significant deterioration
involves difficult questions regarding how the land
in any area is to be used. Traditionally, these land
use decisions have been considered the prerogative
of local and State governments, and in the regula-
tions promulgated herein, the primary opportu-
nity for making these decisions is reserved for the
States and local governments. Id.

The fact is, however, that the regulations ultimately
promulgated by the Administrator fly in the face of
both the provisions of the Clean Air Act and of the
Administrator’s recognition that ‘traditionally’
“land use decisions’? are prerogatives of local and

15

State governments. For while the Administrator gives
lip service to these truths, the regulations grant Fed-
eral land managers authority to independently redesig-
nate Federal lands to the more restrictive Class I
designation (Section 52.21(¢)(3)(iv)), and Indian
governing bodies are also granted redesignation powers
over Indian lands within each State’s boundaries (Sec-
tion 52.21(c) (3) (v)). Furthermore, the State of Utah
does not have the authority under the regulations to
review any redesignation proposal of either Federal
land managers or Indian governing bodies. Our only
recourse under the regulations is to lodge our objec-
tions to any proposed redesignation with EPA, which
may determine whether—in EPA’s ‘‘judgment’’—the
redesignation ‘“‘appropriately balances’’ not merely en-
vironmental concerns, but social and economic con-
cerns of the redesignated area, the surrounding areas
and national interests. It is clear, we submit, that this
regulatory scheme is totally at odds with the Congres-
sional edict so plainly set forth in the Clean Air Act
that ‘“‘[e]ach State shall have the primary responsibil-
ity for assuring air quality within the entire geogra-
phic area comprising such State. .. .’’ And when the
Administrator’s candid warning in his explanation of —
the actual impact of a Class I designation pursuant to
the regulations is taken into account, as of course it
must be, it will be seen that the practical effect of the
delegation of land use authority to Federal land man-
agers and Indian governing bodies in the State of
Utah is to turn over control of all lands within the

State.

[Because of the small air quality increments
specified for Class I areas, these levels can be vio-
lated many miles inside an adjacent Class II or
III area. For example, a power plant which just

16

meets the Class If 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 in-
crement 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
.. . extends well beyond the Class I boundaries
into adjacent areas ... [I]t should be clear that
the Class II or IIT increment could only be fully
utilized toward the center of the area and that at
the periphery, allowable deterioration will be dic-
tated by the adjoining Class I area rather than the
Class II or III increment. 39 Fed. wr) 42512

(Dee. 5, 1974) (emphasi i .
2198). ) (emphasis supplied) (A: 218a

Federal lands comprise 66% of the total lands in the
State of Utah (Bureau of Land Management, Public
Land Statistics 10 (1975) ). Moreover, because of the
ownership pattern of the federal lands there is no
private of State land in Utah that is farther than
twenty miles from the borders of the federal lands.
It is thus manifest from the Administrator’s acknow]l-
edgment that—despite apparent differences between
the Classes established in the regulations for purposes
of determining allowable pollution increments—the
reality is that ‘‘allowable deterioration will be dictated
by the adjoining Class I area rather than the Class II
or ITT increment”’ and that the extent of such “dicta-
tion”’ could be ‘‘60 or more miles.’’ Thus when com-
bining the realities acknowledged by the Administra-
tor concerning the drift factor and the realities of the
extent and pattern of Federal land ownership within
the State of Utah, there is simply no question that a

17

consequence of the delegation to Federal land mana-
gers is to enable the Federal government to control all
of the lands within the State of Utah—contrary to the
explicit commands of Congress in Section 107(a) of
the Clean Air Act and to traditional land use law
which the Administrator recognized and then pro-
ceeded to blithely ignore.

Should the Court reach the issue whether the Ad-
ministrator is authorized to thus delegate control over
lands within the States, we respectfully urge that this
Court adhere to its decisions in Train, Hancock and
Union Electric and strike down the regulations insofar
as they thus derogate from the States’ primacy in the
prevention and control of air pollution within the
entire geographic areas comprising the States.

IV. The Regulations Prejudice Sound Air Quality Management.

The decision of the lower court, if allowed to stand,
will severely hamper the State of Utah in its efforts to
develop and implement an effective, integrated pollu-
tion control program for the entire State. Although
the air quality exceeds national standards in large por-
tions of Utah, other parts of the State have serious
pollution problems. In order to attain and maintain
optimum air quality levels throughout Utab, the
State’s regulatory capability must extend not only to
the problem areas but to the high-quality areas as well.
The decision below would make such sound air quality
management impossible.

By imposing an arbitrary restraint on emissions in
areas of high air quality, the Administrator would

drastically reduce the pollution-control options avail-
able to the State of Utah. For example, the possibility

18

of alleviating urban pollution by encouraging the loca-
tion or relocation of industrial enterprises in sparsely
populated regions would be denied the State. The
State’s options would be even more limited in dealing
with pollution caused by indigenous commercial ex-
pansion in such regions; it would either have to forbid
such expansion or subject it to prohibitively expensive
emission controls (assuming they are even available).

The unauthorized superimposition of Federal land
manager and Indian governing body authority over
classification of Federal and Indian lands within Utah
severely aggravates the State’s problems in this regard,
leaving it virtually without control of meaningful op-
tions to deal with pollution-abating measures tailored
to the needs and aspirations of all of Utah’s citizens.

Congress did not intend that the States be thus
hobbled in carrying out their air quality management
responsibilities under the Clean Air Act. Quite the
contrary, it deliberately left them free to determine
what control measures should be employed in areas
where air quality surpasses national standards. It
made very clear its purpose of preserving the States’
ability to select which among available options will be
most responsive to local problems and needs, see, ¢.g.,
116 Cong. Ree. 32903, 42386 (1970) (statements of
Senator Muskie). In short, Congress intended the
States to have authority and latitude commensurate
with the ‘“‘primary responsibility’? for air pollution
control that is assigned them.

The State of Utah has accepted that responsibility
and is fully committed to achieviug and maintaining
the most rigorous level of pollution control that is con-
sistent with the best interests of all of its citizens in

19

all portions of the State. Indeed, in November 1969,
prior to the enactment of the Clean Air Amendments
of 1970, the State of Utah expressly adopted the‘policy
‘‘that new pollution sources will be controlled to pro-
tect areas of present high air quality’’ (Foreword to
Utah Code of Air Conservation Regulations, emphasis
supplied).

This policy has since been further refined to provide
that

In areas of present high air quality where meas-
ured or estimated ambient levels of controllable
pollutants are below the levels specified by ap-
plicable standards, any emission of pollutant to
the ambient air must be shown to result in pollu-
tion levels, as determined by appropriate evaluat-
ing procedures, within applicable ambient air
standards, and will be prohibited in any case un-
less shown to be controlled to afford the highest
efficiencies and the lowest discharge rates that are
reasonable and practicable... .

The limits of acceptable control will be determined on
a case-by-case basis by the Air Conservation Commit-
tee of the Utah State Division of Health. This policy,
which is of course more stringent than the standards
laid down by the Federal Government, assures the
people of the State of Utah that areas presently en-
joying high air quality will, to the maximum feasible
extent, continue to do so.

20
CONCLUSION

For the foregoing reasons, the State of Utah as
amicus curiae urges the Court to reverse the decision
of the court below.

Respectfully submitted,
Rosert B. HANSEN,
Attorney General

Wiu1aM OC. QUIGLEY,
Assistant Attorney General

THe SraTe or UTAH
Capitol Building
Salt Lake City, Utah 84114

May 1977

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1663%3A13. Public record. Not legal advice.