# Petition — Dow Chemical Co. v. United States Environmental Protection Agency

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 939

## Text

¥ Office-Supreme Court, U.S.
| FILED
f
SO=-17081 ° apr 2 1981
PT ALEXANDcGR L. STEVAS,
' CLERK
NO. 81-
SSS OO
IN THE

Supreme Court of the United States

OCTOBER TERM 1980
——_e——_

THE DOW CHEMICAL COMPANY,
a Delaware corporation,
Petitioner,
vs.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
and DOUGLAS M. COSTLE,
Respondents.

_— ?}

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

R. L. DAVIS
Division Counsel

. The Dow Chemical Company
Midland, Michigan 48640

WERE EQER ym

FISCHER, FRANKLIN, FORD,
SIMON & HOGG

1700 Guardian Building

Detroit, Michigan 48226

(313) 962-5210

Attorneys for Petitioner
The Dow Chemical Company

Interstate Brief & Record Co., Wurlitzer Bldg., 1509 Broadway, Detroit, Mi 48226
962-8745 962-8746

m%

i
QUESTIONS PRESENTED FOR REVIEW

I.

DID CONGRESS, WHEN IT ENACTED THE 1977 CLEAN AIR
ACT AMENDMENTS, INTEND TO PRECLUDE A STATE
FROM PERMITTING A SOURCE TO OPERATE A
SUPPLEMENTARY CONTROL SYSTEM (SCS) ON A
INTERIM BASIS TO MEET AMBIENT AIR QUALITY STAN-
DARDS (AAQS) UNTIL IT: FINAL MEANS OF CONTINU-
OUS CONTROL (WHICH HAD BEEN CONTRACTED FOR
BEFORE ADOPTION OF THE CLEAN AIR ACT OF 1970)
COULD BE PLACED IN OPERATION?

The Court of Appeals answered this question “‘yes.’’

Petitioner contends the answer is “no.”

Il.

DID THE COURT OF APPEALS ERR IN REFUSING TO RE-
VIEW THE LEGISLATIVE HISTORY OF THE CLEAN AIR
ACT AMENDMENTS OF 1977 ON THE GROUND THAT THE
RELEVANT STATUTORY PROVISIONS WERE “OBVIOUS
AND UNAMBIGUOUS?”

Petitioner contends the answer is “‘Yes.”’

Il.

DID THE COURT OF APPEALS ERR IN CONCLUDING
THAT, EVEN THOUGH THE AMBIENT AIR QUALITY
STANDARDS (AAQS) FOR SULFUR DIOXIDE WERE
BEING MET, THE STATE OF MICHIGAN COULD NOT RE-
VISE ITS STATE IMPLEMENTATION PLAN (SIP) TO AC-
COMMODATE PETITIONER’S UNIQUE COMPLIANCE
PROBLEMS BECAUSE OF THE PARTICULAR VOLUME OF
SULFUR DIOXIDE BEING EMITTED BY PETITIONER?

Petitioner contends the Answer ee Sh

iii

TABLE OF CONTENTS

Page

Questions Presented for Review ................. i

SEE Ns 5's Raed co ees ori aicau lee 2
NN aie Basin th dine in dv kd Hee. be tahoe 2

4 Statutes and Regulations Involved ................ 2
Statement of the Case ..............cccccccecece 3

Reasons for Granting the Writ ......... re re 8
NUE 5 65 hoes oh by bv eoeds005 Loews one Cees 18

TABLE OF AUTHORITIES
- Cases:

Big Rivers Electric Corporation, et al v. U.S.
Environmental Protection Agency, 523 F. 2d 16
(6th Cir. 1975), cert. denied 425 U.S. 934 (1976) 6

The Bunker Hill Company v. U.S. Environmental
Protection Agency, 572 F. 2d 1286 (9th Cir.
PREG 9 baa ws dive en cedwns kone o alii 6

Kennecott Copper Corporation v. Train, 526 F. 2d
1149 (9th Cir. 1975), cert. denied 425 U.S. 935
OD - init wikis pucTawediey nessa cae me 6

Kennecott Copper Corporation v. Train, 424 F.
Supp. 1217 (D. Nev. 1976), reversed on other
grounds, sub. nom. Kennecott Copper Corporation
v. Costle, 572 F. 2d 1349 (9th Cir. 1978) ...... 6

PRECEDING PAGE WAS BLANK

iv

Page

Natural Resources Defense Council, Inc. v. U.S.

Environmental Protection Agency, 489 F. 2d

390 (Sth Cir. 1974, reversed in part on other

grounds, sub. nom. Train v. Natural Resources
Defense Council, Inc., 421 U.S..60 (1975) ...... 6

a Southeastern Community College v. Davis, 442
WAN EOE Ga isos URED cos. bine valk betas s 13

Train v. Colorado Public Interest Research Group,
ane. , 420. WS 0 CBF GY ss kph asidae'es 7,8,9,10,12,13

Train v. Natural Resources Defense Council, Inc.,
GEE EGG CASTE). ie 6 tice dnececd 8,13,14,15,16,17

Union Electric Co. v. U.S. Environmental

Protection Agency, 427 U.S. 246 (1976); reh.
denied 429 U.S. 873 (1977) ............. 8,15,16,17
United States v. Oregon, 366 U.S. 643 (1961) ... 13

Vermont Yankee Nuclear Power Corporation v.

Natural Resources Defense Council, Inc., 435
SF Ee CE Evid ce bb sk es Reh ce ho beh eee) 3

Statutes:
‘ BE. APs PEED wide so 50 060 o's ohh baa 2,5
a

Sh Nas, EOD 8 iy oc cadiedostobbbaenns 2,17
Se ee POMED 5s Sv ir codecds xewbues 2,5,10
OE She B MEEE Ri iic cee hae dd came deane cede p A
Be TP PE 5 Sc Un wkdvoncavadenceade 2,5,10
Oe a I bs ae ay cass es ences ey 2,5
Oe Se TUNED. 4 ih Da vb oink vie Ki vb geans ajo

Congressional Reference:

H.R. Rep. No. 294; 95th Cong. 1st Sess. (1977)... 10,
11,12

a

NO. 81-

IN THE

Supreme Court of the United States

OCTOBER TERM 1980
——_e——_-

THE DOW CHEMICAL COMPANY,
a Delaware corporation,
Petitioner,
vs.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
and DOUGLAS M. COSTLE,
Respondents.

_—oe —_—_

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

_—?o-—_——

Petitioner THE DOW CHEMICAL COMPANY (Dow)
respectfully prays that a writ of certiorari issue to review
the judgment and opinion of the United States Court
of Appeals for the Sixth Circuit entered in these
proceedings on December 9, 1980. Petitioner filed a
Petition for Rehearing and Suggestion for Rehearing En
Banc in a timely manner, which Petition was denied
by the United States Court of Appeals for the Sixth
Circuit on February 9, 1981.

2
OPINION BELOW

The opinion of the Court of Appeals is not yet
officially reported. A copy of the opinion is contained in
the Appendix annexed hereto. (App. 1)

JURISDICTION

The Judgment of the Court of Appeals was entered on
December 9, 1980. (App. 35) Petitioner thereafter filed a
Petition for Rehearing and Suggestion for Rehearing En
Banc on December 23, 1980, which Petition was denied
by the Court of Appeals on February 9, 1981. (App. 36)
This petition for writ of certiorari was filed within 90
days of that date. The jurisdiction of this Court is
invoked pursuant to 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

The statutory provisions involved are specific
provisions of the Clean Air Act of 1970 as amended by
the Clean Air Act Amendments of 1977. The provisions
involved are:

42 U.S.C. § 7407(d)(1)-(2)
42 U.S.C. § 7410(a) (1)-(3)
42 U.S.C. § 7423(a)-(b)

42 U.S.C. § 7501(2)

42 U.S.C. § 7602(k)

42 U.S.C. § 7602(m)

42 U.S.C. § 7607(b)(1)

Because of their length, these statutory provisions are set
forth in the annexed Appendix. (App. 36-45)

3
STATEMENT OF THE CASE

This case involves the question of whether Congress,
in enacting the Clean Air Act Amendments of 1977,
intended to prohibit sources from using Supplementary
Control Systems (SCS) on an interim basis to meet
ambient air quality standards until their final means of
compliance (statutorily mandated “continuous controls’’)
could be placed in operation. The parties here agree that
a source's final means of compliance with the provisions
of the Clean Air Act must be “continuous controls.” The
issue which divides the parties is whether the Clean Air
Act Amendments of 1977 were intended to bar interim
use of a SCS by a source to meet ambient air quality
standards until its final means of continuous control
(delayed for reasons over which it had no control) could
be placed in operation.

In 1967, Dow and Consumers Power Company entered
into a contract for what was to become Dow’s final
“continuous” means of compliance with the
requirements of the subsequently enacted Clean Air Act
of 1970. This contract committed Dow to retire its old
fossil fuel fired boilers, purchase steam and electricity
from a nuclear plant to be constructed at Midland,
Michigan and reimburse Consumers, as a portion of the
steam rates ultimately to be charged, for in excess of $700
million in construction costs incurred by Consumers in
building the nuclear plant at Midland, Michigan. The
nuclear plant was originally scheduled to be completed
in 1974 but various delays, completely beyond Dow’s
control, moved the start-up date to 1980, then 1982 and
now 1984.1

? Some of the reasons for the delays are set out in Vermont Yankee
Nuclear Power Corporation v. Natural Resources Defense Council, Inc.,
435 U.S. 519 (1978).

4

In order to provide for an interim means of meeting the
ambient air quality standards (AAQS) by 1975 (as
required by the Clean Air Act of 1970) until the nuclear
plant could be completed, Dow was authorized by the
Michigan Air Pollution Control Conimission (MAPCC),
through a series of Consent Orders or variances (App.
46, 53, and 70), to operate a Supplementary Control
System (SCS)? in lieu of constructing tall stacks or
implementing other systems found to be either
economically or technologically infeasible. There is no
dispute between the parties that, since implementation
of Dow’s SCS, the system has proven completely
successful in attaining and maintaining the relevant
AAQS in the Midland County area.

All the Consent Orders or variances [Consent Order
12-73-05 (App. 46), Consent Order No. 10-1977 (App.
53) and Consent Order No. 01-1979 (App. 70)] were
submitted by the MAPCC to the U. S. Environmental
Protection Agency (EPA) for its review and approval.
Moreover, as required by the Clean Air Act

2 Dow’s SCS is a sophisticated computer-controlled system which
uses 8 monitors to sample air quality and a computer model to predict
air quality at 83 points in the Midland area. The system limits the rate
of pollutant emissions during periods when meteorological
conditions are such that violations of the AAQS will occur unless
pollutant emissions are reduced. This is accomplished by shifting
from the use of coal as a fuel to the use of oil or natural gas.

* Dow and the MAPCC agreed that it was economically infeasible,
in view of Dow’s contractual commitment to Consumers to
reimburse it for the cost of building the nuclear power plant in
Midland, Michigan, to require the expenditure of tens or hundreds of
millions more to improve existing coal fired units or to build new coal
fired units when these units would have to be abandoned when the
nuclear plant became operational.

5

Amendments of 1977 [42 U.S.C. 7407(d)(1)], the MAPCC
designated Midland County an “attainment” area for
sulfur dioxide (App. 36-37; 44; 125-127) and submitted
this designation to EPA on December 30, 1977. (App.
136-137) EPA thereafter took the position that, in
enacting the Clean Air Act Amendments of 1977
[specifically 42 U.S.C. § 7423(a) and (b) and 42 U.S.C.
§ 7602(k) and (m)], Congress intended to bar interim use
of a SCS by a source to meet the relevant AAQS until its
continuous means of control could be placed in
operation. It contended that Congress, in enacting the
1977 Clean Air Act Amendments, had mandated use of
continuous controls in all circumstances. EPA thereafter
redesignated Midland County as a “non-attainment’’
area with respect to sulfur dioxide emissions (See App.
B — EPA non-attainment reg.) and formally rejected
Dow’s most recent Consent Order No. 01-1979 as a
revision to the Michigan State Implementation Plan
(SIP). (See App. B — EPA reg. rejecting SIP revision)‘ In
taking this action, EPA conceded that the AAQS were
being met but took the position that they were being met
through operation of a system (the SCS) which it viewed
as prohibited by the Clean Air Act Amendments of 1977.

Dow timely filed Petitions to Review with the United
States Court of Appeals for the Sixth Circuit,5 seeking

* With respect to Dow’s earliest Consent Order 12-73-05, EPA
acknowledged receiving it by letter dated July 10, 1974, stated that it
was reviewing it, and would contact the MAPCC if further
information was needed. (App. 52-53) It never thereafter contacted
the MAPCC or Dow to voice any objection to the interim use of
Dow’s SCS. With respect to Consent Order No. 10-1977, EPA
acknowledged its receipt in an exchange of letters with the MAPCC
(App. 64, 65 and 67) and thereafter caused the MAPCC to refuse to
pursue its efforts to have the Consent Order approved as a SIP
revision. (App. 104)

* The Court of Appeals had jurisdiction over the Petitions to
Review pursuant to 42 U.S.C. § 7607(b)(1). (App. 44-45)

6

review of EPA’s redesignation of Midland County,
Michigan as a “non-attainment’’ area (Docket Nos.
78-3139 and 78-3595) and its rejection of Dow’s Consent
Order No. 01-1979 as a SIP revision (Docket No.
80-3260). Dow argued that case law decided prior to the
Clean Air Act Amendments of 1977 specifically
authorized use of a SCS on an interim basis where
continuous controls were either technologically or
economically infeasible. [Natural Resources Dejense
Council, Inc. v. U. S. Environmental Protection Agency, 489
F. 2d 390 (Sth Cir. 194), reversed in part on other grounds,
sub. nom. Train v. Natural Resources Defense Council, Inc.,
421 U. S. 60 (1975); Big Rivers Electric Corporation, et al v.
U. S. Environmental Protection Agency, 523 F. 2d 16 (6th
Cir. 1975), cert. denied 425 U. S. 934 (1976); Kennecott
Copper Corporation v. Train, 526 F. 2d 1149 (9th Cir.
1975), cert. denied 425 U. S. 935 (1976); Kennecott Copper
Corporation v. Train, 424 F. Supp. 1217 (D. Nev. 1976),
reversed on other grounds, sub. nom. Kennecott Copper
Corporation v. Costle, 572 F. 2d 1349 (9th Cir. 1978); The
Bunker Hill Company v. U. S. Environmental Protection
Agency, 572 F. 2d 1286 (9th Cir. 1977)] Dow also argued
that the legislative history of the Clean Air Act
Amendments of 1977 contained comments indicating
that Congress (a) was legislatively affirming the holdings
of these cases in enacting the Clean Air Act Amendments
of 1977; (b) was mandating use of continuous controls as
a source’s final means of compliance but (c) was
continuing to authorize interim use of a SCS where a
source’s final means of continuous control had not yet
been placed in operation for reasons over which it had
no control.

The Court of Appeals, after hearing argument in the
“non-attainment” case on June 16, 1980, consolidated the
“non-attainment” case (Nos. 78-3139 and 78-3595) with

7

the “SIP revision rejection” case (No. 80-3260) since the
central issue of the legality of interim use of Dow’s SCS
was common to both cases. The Court thereafter
scheduled and heard reargument. (App. 34) On
December 9, 1980, the Court of Appeals filed its opinion
dismissing Dow’s Petitions to Review in which it held
that:

(a) even though “... some of the language relied
upon by Dow does seem to conflict with what we
believe to be the obvious and unambiguous
language of the 1977 statutory provisions quoted
above” (42 U.S.C. § 7602(k); 42 U.S.C. § 7423(a)
and (b)), the Court could ignore the legislative
history in construing the Statutory provisions
involved since the statutory provisions were “’. . .
themselves obvious and unambiguous.” (App. 6)

(b) even though the ambient air quality standards for
sulfur dioxide were being attained, the State of
Michigan could not grant Dow the variance in
question (Consent Order No. 01-1979) and revise
its SIP because of the particular levels of sulfur
dioxide then being emitted from Dow’s stacks.

(App. 6)

Dow filed a timely Petition for Rehearing and
Suggestion for Rehearing En Banc, arguing, inter alia,
that the Court’s refusal to review the legislative history
in construing the statute contravened this Court's ruling
in Train v. Colorado Public Interest Research Group, Inc.,
426 U. S. 1 (1976). Dow also argued that the Court's
holding that Dow’s Consent Order No. 01-1979 (or
variance) could not be approved as a SIP revision
because of the volume of its sulfur dioxide emissions (at
a time when the AAQS for sulfur dioxide were
admittedly being attained) was contrary to the decisions

8

of this Court in Train v. Natural Resources Defense Council,
Inc,, 421 U. S. 60 (1975) and Union Electric Co. v. U.S.
Environmental Protection Agency, 427 U. S. 246 (1976); reh.
denied 429 U. S. 873 (1977) which held that, so long as the
relevant AAQS are being met, the state — not
EPA or the courts — alone determines which sources
may be granted variances and what volume of pollutants
they may emit.

The Petition for Rehearing and Suggestion for
Rehearing En Banc was denied on February 9, 1981.

(App. 36)
REASONS FOR GRANTING THE WRIT

THE DECISION OF THE COURT OF APPEALS IS
DIRECTLY IN CONFLICT WITH THIS COURT’S DECISION
IN TRAIN V. COLORADO PUBLIC INTEREST RESEARCH
GROUP, INC., 42° U.S. 1 (1976)

In the consolidated Petitions to Review before the
Court of Appeals, Dow argued that Congress, in
enacting the Clean Air Act Amendments of 1977, had not
intended to reverse then existing case law which held
that Supplementary Control Systems (SCS) could be used
on an interim basis to meet ambient air quality standards
where continuous controls were either technologically or
economically infeasible. Dow pointed to the legislative
history which contained comments supportive of its
position. The Cozirt of Appeals, while noting that “. . .
some of the language relied upon by Dow does seem to
conflict with what we believe to be the obvious and

9

unambiguous language of the 1977 statutory provisions
quoted above ...,” (App. 6) concluded that it need
not review the legislative history to resolve the apparent
conflict since the statutory provisions before it were“. . .
easily understandable and unambiguous.”’ (App. 6)¢®
In ignoring the legislative history as an aid in
interpreting this very complicated statute, the Court
4 erred. In Train v. Colorado Public Interest Research Group,
Inc., 426 U. S. 1 (1976), this Court reversed a Court of
Appeals decision involving an interpretation of
provisions of the Federal Water Pollution Control Act.
There, the Court of Appeals ignored the legislative
history of the Act because it found that the statute itself
was “... plain and unambiguous” — although it did
note that the legislative history was in conflict. This
Court reversed, stating:

“To the extent that the Court of Appeals excluded
reference to the legislative history of the FWPCA
in discérning ‘ts meaning, the court was in error.
As we have noted before: ‘When aid to
construction of the meaning of words, as used in
the statute, is available, there certainly can be no
‘rule of law’ which forbids its use, however
. clear the words may appear on ‘superficial
examination.’ (citations omitted) In this case, as

* The Court cited Southeastern Community College v. Davis, 442
U.S. 397 (1979) and United States v. Oregon, 366 U.S. 643 (1961) in
support of its conclusion that it need not review the legislative
history. However, neither of these cases involved a situation where
the legislative history was in fact in conflict with the “easily
understandable and unambiguous” statutory language. As noted
above, Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1
(1976) is directly in point since it does deal with a situation where, as
here, the legislative history conflicts with the meaning attributed to
the statute by the Court. .

ail

’>

10

we shall see, the legislative history sheds
considerable iight on the question before the
Court.” (426 U. S. at 9-10)

If the Court of Appeals here had considered the
legislative history of the 1977 amendments as an aid in
interpreting the statute itself, it would have noted that:

(i)

(ii)

In enacting 42 U.S.C. § 7602(k), § 7423(a) and
§ 7423(b), which call for continuous controls to
meet ambient air quality standards, Congress was
dealing with a source’s final means of control and
was not addressing the question of whether a SCS
could be operated on an interim basis to meet
AAQOS until a source’s final means of continuous
controls could be implemented.

The House Report, after discussing eight
objections to the use of tall stacks and SCS, stated
as follows:

“Testimony. — For the foregoing reasons, both the
Environmental Protection Agency and the Federal
Energy Administration testified in 1975 that the
final means of compliance should be continuotss
emissions reduction and that intermittent controls and
tall stacks should only be used as interim measures
under limited circumstances. (H. 156, 1181). The
National Academy of Sciences has concurred.
Similarly, the representative of the State and
Territorial Air Pollution Program Administrators
has testified as follows:

‘“ ‘Mr. Rogers. Does STAPPA agree with
intermittent controls or continuous controls for
stationary sources?

(iii)

11

“ ‘Mr. Barden. STAPPA passed a resolution
advocating that intermittent controls be used only
during the interim, while permanent controls are
being installed. Continuous controls should be the
method of permanent control.’ ” (H. 631-2) (H. Rpt.
at p. 91) .

Three Court of Appeals decisions (one from the
Sixth Circuit) decided prior to the 1977
amendments held that a source’s final means of
compliance with AAQS must be continuous
controls but that a state may authorize interim
use of a SCS where continuous controls were
either economically or technologically infeasible.
As to the 1977 amendments’ effect on these cases,
the House Report said:

“The Committee proposal is intended to ratify the
general thrust, if not the specific holdings, of the-
three U. S. courts of appeals which have considered
the issue of the permissibility of intermittent controls,
tall stacks, and other dispersion enhancement
techniques. NRDC v. EPA, 489 F. 2d 390 (5th Cir.
1974); Big Rivers Electric Corp. v. EPA, 523 F. 2d 16
(6th Cir. 1975); Kennecott Copper Corp. v. EPA, 526
F, 2d 1149 (9th Cir. 1975), cert. denied in each case.
(emphasis supplied)

* + +

“By defining the terms ‘emission limitation,’
‘emission standard,’ and ‘standard of performance,’
the committee has made clear that constant or
continuous means of reducing emissions must be used
to meet these requirements. By the same token,
intermittent or supplemental controls or other
temporary, periodic, or limited systems of control

12

would not be permitted as a final means of compliance.” (H.
Rpt. No. 294 at pp. 91-92) (emphasis suppli~d)

Thus, when the statutory provisions relied upon by
the Court of Appeals are read in light of the legislative
history, it is clear that Congress intended to mandate
continuous controls as the final means of compliance but
did not preclude use of a SCS on an interim basis to meet
AAQS until a source’s final means of compliance could
be brought on-line.

Thus, the action of the Court of Appeals, in refusing to
review the legislative history as an aid to interpreting the
statutory provisions before it, is in direct conflict with
Train v. Colorado Public Interest Research Group, Inc.,
supra. As this Court noted in Train, supra:

“When aid to construction of the meaning of
words, as used in the statute, is available, there
certainly can be no ‘rule of law’ which forbids its
use, however clear the words may appear on
‘superficial examination.’ ” (426 U. S. at 10)

Yet the Court of Appeals here held that: ;

“It is, however, a cardinal rule of statutory
interpretation that the courts do not turn to
legislative history to shed light on the meaning of
easily understandable and unambiguous statutory
enactments. See Southeastern Community College v.
Davis, 442 U. S. 397 (1979); United States v.
Oregon, 366 U. S. 643 (1961).’’ (emphasis
supplied) (App. 6)

As noted supra at page 9, Petitioner does not believe that
the cases cited by the Court of Appeals support the rule
of statutory interpretation it announced and that

13

Train v. Colorado Public Interest Research Group, Inc.,
supra, is controlling (and contrary to the Court of
Appeals’ holding). If Petitioner is in error, then it is
apparent that the pronouncements of this Court in Train
v. Colorado Public Interest Research Group, Inc., supra,
Southeastern Community College v. Davis, supra, and
United States v. Oregon, supra, regarding the function of
the federal courts and the sources available to them in
construing “clear and unambiguous” federal statutory
enactments are in conflict. By granting this Petition for
Writ of Certiorari, this Court can finally put to rest the
question of whether and when federal courts should
resort to the legislative history of federal statutory
enactments for guidance in construing legislative
enactments found to be “clear and unambiguous.” This
issue is clearly one of great importance to the federal
judicial system and mierits this Court’s consideration.

II.

THE DECISION OF THE COURT OF APPEALS IS DI-
RECTLY IN CONFLICT WITH THIS COURT’S DECISIONS
IN TRAIN V. NATURAL RESOURCES DEFENSE COUNCIL,
INC., 421 U. S. 60 (1975) AND UNION ELECTRIC CO. V.
EPA, 427 U. S. 246 (1976)

This Court, in two cases which are regarded by the
bench and bar as ‘seminal cases’ involving the
interpretation of the Clean Air Act of 1970, discussed the
respective roles of the states and the federal government
(EPA) in implementing the provisions of the Clean Air
Act of 1970. With respect to the formulation of a state’s
SIP and its revisionary process, this Court held:

“The agency (EPA) is plainly charged by the Act
with the responsibility for setting the national

14

ambient air standards. Just as plainly, however, it
is relegated by the Act to a secondary role in the
process of determining and enforcing the specific,
source-by-source emission limitations which are
necessary if the national standards it has set are to
be met. Under § 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. The Act
gives the Agency no authority to question the wisdom
of a State’s choices of emission limitations if they are
part of a plan which satisfies the standards of
§ 110(a) (2), and the Agency may devise and
promulgate a specific plan of its own only if a
State fails to submit an implementation plan
which satisfies those standards. § 110(c). Thus, so
long as the ultimate effect of a State’s choice of
emission limitations is compliance with the national
standards for ambient air, the State is at liberty to
adopt whatever mix of emission limitations it deems
best suited to its particular situation. Train v.
Natural Resources Defense Council, Inc. (421 U. S.
at 79-80) (emphasis supplied)

**+* *

“The judgments which the Agency must make when
passing on variances under § 110(a)(3) are whether
the ambient air complies with national standards, and
if so whether a proposed variance would cause a plan
to fail to insure maintenance of those standards.”
(421 U. S. at 93) (emphasis supplied)

++ *

15

“Since a variance would normally implicate only the
§ 110(a)(2)A) requirement that plans provide for
attainment and maintenance of national ambient air
standards, treatment as revisions would result in
variances being readily approved in two situations:
first, where the variance does not defer
compliance beyond the attainment date; and
second, where the national standards have been
attained and the variance is not so great that a plan
incorporating it could not insure their continued
maintenance.’’ (421 U. S. at 77) (emphasis
supplied)

Again, in Union Electric Co. v. U.S. Environmental
Protection Agency, supra, this Court held:.

‘‘Perhaps the most important forum for
consideration of claims of economic and
technological infeasibility is before the state
agency formulating the implementation plan. So
long as the national standards are met, the State may
select whatever mix of control devices it desires,
Train v. NRDC, supra, at 79, 43 L Ed 2d 731, 95S
Ct 1470, and industries with particular economic or
technological problems may seek special treatment in
the plan itself. Cf. 40 CFR §§ 51.2(b), (d) (1975); S
Rep No. 91-1196, p 36 (1970). Moreover, if the
industry is not exempted from, or accommodated by,
the original plan, it may obtain a variance, as
petitioner did in this case; and the variance, if
granted after notice and a hearing, may be submitted
to the EPA as a revision of the plan.” (427 U. S. at
266) (emphasis supplied)

Thus, so long as the relevant AAQS are being met, the
state — not EPA or a court (on review of EPA action) —

75

*%

16

determines which sources may be given variances and
what volume of pollutants they may emit.

The Court of Appeals here held to the contrary. On a
record where it was uncontested that the relevant AAQS
were being met, the Court nonetheless ruled that the
Michigan Air Pollution Control Commission could not
grant Dow the variance at issue (Consent Order
No. 01-1979) and thereafter revise its SIP. The Court so
held, stating:

4

‘. . . Dow is now emitting from its aging power
plants 39,809 tons of SO: per year. Due to
dispersion among a number of stacks and to
relatively low pollution from other sources in the
same county, Dow’s emissions have not caused
Midland County monitors to show violations of
the national air quality standards.

* + *

“This means, of course, that absent EPA’s order,
Dow’s SO: pollutants will continue to damage the
air and the environment both in Midland County
and downwind therefrom until Consumer’s [sic]
nuclear plant comes on line.”’ (App. 6)

However, as noted above, the emission of 39,809 tons of
sulfur dioxide per year by Dow is no bar to approval of
its SCS on an interim basis because the relevant AAQS
were and are being met. By saying that a state may not
authorize the emission of a given volume of sulfur
dioxide when the relevant AAQS are being met, both
EPA and the Court of Appeals arrogated to themselves a
decision-making power specifically reserved by the Act
to the state. Train v. Natural Resources Defense Council,
Inc., supra; Union Electric Co. v. U. S. Environmental
Protection Agency, supra.

‘X

17

Moreover, to the extent that the Court of Appeals
looked to the possible impact of Dow’s emissions
somewhere ‘‘downwind” rather than directing its
attention solely to the impact of Dow’s emissions in the
area of Midland County where Dow is located, such
action was completely contrary to the provisions of the
Clean Air Act as interpreted by this Court. In
determining whether to approve a variance as a revision
to a state SIP, this Court has expressly held that the
Administrator is to determine whether or not the AAQS
are being met in the area where the source is located. Train
v. Natural Resources Defense Council, Inc., supra; Union
Electric Co. v. U. S. Environmental Protection Agency,
supra. The Act confers no authority on the Administrator
(or a court) to reject a variance on the ground that the
source’s emissions, while not causing any violation of
the AAQS in the area where the source is located, might
cause unspecified “environmental damage’’elsewhere in
the country where the source’s emissions may ultimately
be carried.”

Unless this Court grants this Petition for Writ of
Certiorari, the fundamental roles of EPA and the states
under the Clean Air Act, as articulated in Train v. Natural
Resources Defense Council, Inc., supra, and Union Electric
Co. v. U. S. Environmental Protection Agency, supra, will
be inalterably changed and the role reserved to the states
irretrievably diminished. Moreover, the present
requirements of the Clean Air Act which mandate that

7 While 42 U.S.C. § 7410(a)(2)(E) provides that a SIP must contain
provisions to insure that a source’s emissions do not prevent
attainment or maintenance of AAQS in another state, there was no
evidence in the record before EPA or the Court of Appeals in this case
that Dow’s emissions were causing or contributing to a violation of
AAQS in any other state.

18

the Administrator, in reviewing a SIP revision request,
determine the impact of the source’s emissions in the
area where the source is located will be effectively
abrogated and the Administrator will be empowered to
reject state-granted variances on the ground that, while
the AAQS are being met in the area of the source and
' while its emissions are aot causing any violation of
AAQS in another state, the source’s emissions “may”
cause unspecified ‘environmental damage’ somewhere
else in the country.

CONCLUSION

This Petition for a Writ of Certiorari should be
granted.

Respectfully submitted,

R. L. DAVIS

Division Counsel

The Dow Chemical Company
Midland, Michigan 48640
(517) 636-4781

FISHER, FRANKLIN, FORD, SIMON
& HOGG

By: William C. Potter, Jr.

1700 Guardian Building

Detroit, Michigan 48226

(313) 962-5210

Attorneys for Petitioner
The Dow Chemical Company

DATED: March 31, 1981

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1606%3A1. Public record. Not legal advice.