# Petition — Ruckelshaus v. Natural Resources Defense Council, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 810

## Text

8 2 3 1 591 ee os US,

No = | MAR 25 1983

——— > _—

ALEXANDER L. STEVAS,

Iu the Supreme Court of the Uuited States —_|

OCTOBER TERM, 1982

ADMINISTRATOR, ENVIRONMENTAL PROTECTION
AGENCY, PETITIONER

Vv.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

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

REx E. LEE
Solicitor General

CAROL E. DINKINS
Assistant Attorney General

JOSE R. ALLEN
NANCY S. BRYSON
Attorneys

Department of Justice
Washington, D.C. 20530
(202) 683-2217
WILLIAM F. PEDERSEN
CHAELES S. CARTER
Attorneys
Environmental Protection Agency
Washington, D.C. 20460

A I lene le a e

QUESTION PRESENTED

Whether the Clean Air Act prohibits EPA from
allowing a state to adopt a plantwide approach to new
source review in nonattainment areas in circum-
stances where the state can demonstrate that its state
implementation plan including such a new source re-
view program contains all of the elements required by
the Clean Air Act and provides for timely attainment
and maintenance of air quality standards.

PARTIES TO THE PROCEEDING

In addition to the Natural Resources Defense
Counci!, respondents include Citizens for a Better En-
vironment, Inc. and the Northwestern Ohio Lung As-
sociation, Inc. Nominal respondents include Chevron
USA, Inc. (petitioner in No. 82-1005) and the Amer-
ican Iron and Steel Institute, the American Petroleum
Institute, the Chemical Manufacturers Association,
General Motors Corporation, and the Rubber Manu-
facturers Association (petitioners in No. 82-1247).
Other respondents under Rule 19.6 include various
member companies of two of the organizations that
are petitioners in No, 82-1247, and a group of 81
electric power generating companies and two electric
utility trade associations, all of which were intervenor-
respondents in the court of appeals. Those additional
respondents are listed at 82-1247 Pet. iii nn.1, 2 and 3.

(I)

TABLE OF CONTENTS

Page
os sandoioioebpncbbebasdqoseesscscons 1
ss panadesnbaananpovonvensnte 2
Statute and regulations involved ...00.0.0...........0.000cccceeeees 2
i, ss ceanaedibacnosnsddpsacsbosnnsese 2
Reasons for granting the petition ..............0.0000.000....000 12
i sasecsanebecessonesscacenecone 25
TABLE OF AUTHORITIES
Cases:
Alabama Power Co. v. Costle, 636 F.2d 323....5, 11, 21, 22
ASARCO, Inc. v. EPA, 578 F.2d 319 ................ 11, 21, 22
FCC v. National Citizens Committee For Broad-
a. scimsvorcensscevecece 19
Phelps Dodge Corp. v. NLRB, 313 U.S. 177 ............ 20
Train V. Natural Resources Defense Council, Inc.,
a cnouuonocrsase 12, 18, 15, 18, 19
Union Electric Co. Vv. EPA, 427 U.S. 246 .............. 18,19
Statutes, regulations and rule:
Act of July 14, 1955, ch. 360, 69 Stat. 322 ............. 14
Air Quality Act of 1967, Pub. L. No. 90-148, 81
I sanaseecsasecccenscecese 14
Clean Air Act of 1970, Pub. L. No. 91-604, 84 Stat.
1676 (formerly 42 U.S.C. 1857 et seq.) .............. 8,14
Section 101 (a) (8), 42 U.S.C. 1857 (a) (8)...... 8, 15
Section 107(a), 42 U.S.C. 1857c-2(a) ............ 4, 14-15
Section 109, 42 U.S.C. 1857¢-4 2000000000... 4
Section 110(a) (2), 42 U.S.C. 1857c-5(a) (2).. 4
Section 111, 42 U.S.C. 1857¢-6 20000000000... 21
Clean Air Act as amended, Pub. L. No. 95-95, 91
Stat. 685, 42 U.S. (Supp. IV) 7401 et sezq......... 2,4
Section 101(a) (3), 42 U.S.C. (Supp. IV)
a 8, 15

IV

Statutes, regulations and rule—Continued : Page
Section 107(a), 42 U.S.C. (Supp. IV) 7407
ahaa talcraldanliia eins nedboes 4, 26
Section 109, 42 U.S.C. (Supp. IV) 7409............ 4
Section 110(a) (2), 42 U.S.C. (Supp. IV)
eB GRR dew patie nares ia ata Sak eee 4
Section 110(a) (2) (1), 42 U. S.C. (Supp. IV)
NI sian clase ccenavvieneeti 6
Section 111, 42 U.S.C. (Supp. IV) 7411............ 21
Section 111(a) (4), 42 U.S.C. (Supp. IV)
I ai cs ts nae ae os bascedrcaciioansas 5
Sections 160-169, 42 U.S.C. (Supp. IV) 7470-
IRR fe aR ate MRT AS IN LETS OO 9
Section 165(a) (4), 42 U.S.C. (Supp. IV)
UN aN deities 22
Sections 171-178, 42 U.S.C. (Supp. IV) 7501-
Rin Taree eres PE eae Se 4,15
Section 171(4), 42 U.S.C. (Supp. IV) 7501
ONL See ALONG BR ROR le 2 ee ROP 5
Section 172(a)(1), 42 U.S.C. (Supp. IV)
> ERR eT i ae ah ies 5
Section 172(a) (2), 42 U.S.C. (Supp. IV)
SRILA SEER US Seve SEO 5
Section 172(b), 42 U.S.C. (Supp. IV) 7502
SEBS SA EDS tosis tt NED SO es his Le Ne .. 6,16
Section 172(b) (2), 42 U.S.C. (Supp. IV)
ES Sgn 5
Section 172(b) (3), 42 U.S.C. (Supp. IV)
TOC TR MIDE. skcsscnsesccssce! Resa.) 2 accstemestasais 5
Section 172(b) (5), 42 U.S.C. (Supp. IV)
Sanaa MESS a Sel J OR Re 6
Section 178, 42 U.S.C. (Supp. IV) 7508 ........ 5
Section 173(1), 42 U.S.C. (Supp. IV) 7503
OR nescek bitch achceecdeae iain Seton lascamanba 6
Section 173(2), 42 U.S.C. (Supp. IV) 7503
We acedknincehecncciccapincrnasuesscdiasanbaiiberctanieis tuaghetetteces 6
Section 173(3), 42 U.S.C. (Supp. IV). 7503
SREP a NSP Nise LRAT EN a pie i oer a 6
Section 178(4), 42 U.S.C. (Supp. IV) 7503
I Gieassepaceh ee 6

V

Statutes, regulations and rule—Continued: Page
Section 301(a)(1), 42 U.S.C. (Supp. IV)
I ok a caadndsuaepessideninimiannnaiel 12
Section 302(j), 42 U.S.C. (Supp. IV) 7602
a tte lel uae al actin dan seahadileriniuceahsdanadeunmebenatetet 5
Section 307(b) (1), 42 U.S.C. (Supp. IV)
ee! ccaancqpibaktacmel dates 9,24
40 C.F.R. (1981):
Part 51:
Bee BTDCTD CTP CED i cccoccecccsccccasccccones 7
BOOTEO SALE CS) CE) CI) cnccccssccsecsssrcieesecece 7
Bection 61.1864) (1) (ix) .........00.ccccccocsseess. 8
Part 52:
I MND OOD ooo. cacdncscsrnscesinsonckesecoocs 7,8
IN SAI GED oo. ccncunassduccaseonniionas 7
IE PE COPD vvneccscécccccccsmnenndesnsstunbocns x
40 C.F.R.:
MERLOT ac ieee aI a EER Rp Be oe Oe ra CP 4
Part 51
i csc encchesenbepaeecaininnaien 2
RENE BROCE NCD UD) cicscesccesscavepessaccossens 8
I TE os oh estsnetasebiomanbe 8
a a cactncnelcandesaseeasatgubansonaies 2
Miscellaneous:
44 Fed. Reg. (1979):
ERS RY CORD eee a me Law eee 7
ea ass cncaisnnibipduelaaes dhsbiiedbods 7
45 Fed. Reg. (1980):
ia secepevnchosnonnihadadndectartebinrs 8
PP. 52696-52698 0.0.0... eeeeceeceeeeeeee ena ar 8
46 Fed. Reg. (1981):
Ce ta ireslmicireannndnbamninan 8
EGS aca Sai Sa ae Se 8
H.R. Rep. No. 95-294, 95th Cong., Ist Sess.
Oo ignite ny UB TEE A hee eon EOD 15

S. Rep. No. 95-127, 95th Cong., lst Sess. (1977).. 16

Iu the Supreme Court of the United States

OCTOBER TERM, 1982

No.

ADMINISTRATOR, ENVIRONMENTAL PROTECTION
AGENCY, PETITIONER

v.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

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

The Solicitor General, on behalf of the Administra-
tor of the Environmental Protection Agency, petitions
for a writ of certiorari to review the decision of the
United States Court of Appeals for the District of
Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (82-1005 Pet.
App. A-1 to A-20) is reported at 685 F.2d 718.’

' The petitions in No. 82-1005, Chevron U.S.A., Inc. v. Nat-
ural Resources Defense Council, et al., and No. 82-1247, Amer-
ican Iron and Steel Institute, et al. v. Natural Resources De-
fense Council, et al., also seek review of the judgment of the

(1)

2

JURISDICTION

The judgment of the court of appeals was entered
on August 17, 1982. Timely petitions for rehearing
were denied (82-1005 Pet. App. B-22 to B-25) on
October 27, 1982. The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

STATUTE AND REGULATIONS INVOLVED

Pertinent provisions of the Clean Air Act, 42 U.S.C.
(Supp. IV) 7401 et seq., are reproduced at 82-1247
Pet. App. la-10a. Pertinent portions of implement-
ing regulations, 40 C.F.R. 51.18(j), are reproduced
at 82-1247 Pet. App. 32a-33a.

STATEMENT

This case presents a question as to the meaning of
the term “stationary source” as it is employed (with-
out any explicit statutory definition) in key provisions
of the 1977 Amendments to the Clean Air Act. Those
provisions require states that had not, by 1977, met
national air quality standards established under stat-
utory authority by the Environmental Protection
Agency to establish permit programs regulating the
construction of “new or modified major stationary
sources” of air pollution. To fill the definitional void
left by the statute, in October 1981, after allowing
for notice to the public and consideration of com-
ments received, the Environmental Protection Agency
adopted by regulation a definition that had earlier
been proposed in 1979. The 1981 regulation permits

court of appeals in this case. We will not respond separately
to these petitions. Because the materials required to be re-
produced by Rule 21(k) are included within the previously
filed petitions we refer to those petitions where appropriate,
rather than duplicating the materials found there.

3

the states to adopt a “plantwide” definition of “sta-
tionary source” that treats an entire industrial plant
as single source. It thus exempts from the formal
new source review process addition of equipment and
modifications to existing equipment within a plant
if increased emissions from the new or modified
unit are offset by corresponding decreases from an-
other unit within the plant so that aggregate plant
emissions do not increase more than de minimis
amounts. Under the 1981 regulations the states also
retained the option to treat each component of a plant
as a separate source. Thirty-one states have to date
availed themselves of the plantwide source definition
and have sought to modify the state implementation
plans required under the Act to incorporate that ap-
proach. In this ease, however, the United States
Court of Appeals for the District of Columbia Circuit
invalidated the EPA’s 1981 regulations, concluding
that the general purposes of the 1977 Amendments to
the Act left the Agency with no discretion to sanction
a plantwide definition in this context.

1. As amended in 1970, the Clean Air Act estab-
lished a federal-state partnership which recegnizes
that “the prevention and control of air pollution at
its source is the primary responsibility of States and
local governments.” Section 101(a)(3), 42 U.S.C.
1857(a)(3) and 42 U.S.C. (Supp. IV) 7401(a) (3).?
The Environments] Protection Agency (“EPA”) was

* At the time of the 1970 Amendments, Pub. L. No. 91-604,
84 Stat. 1676, the Act was codified at 42 U.S.C. 1857 et seq.
In 1977 the Act was further amended. As amended, the Act
was reclassified to 42 U.S.C. (Supp. IV) 7401 et seq. Where
reference is made to pre-1977 provisions that were not ma-
terially changed by the amendments of that year citations to
both the former and present codifications are provided.

4

required to establish a set of primary and secondary
National Ambient Air Quality Standards (“NAAQS’’).
Section 109, 42 U.S.C. 1857c-4 and 42 U.S.C. (Supp.
IV) 7409.* The primary NAAQS, were to be designed
to protect the public health, while the secondary
NAAQS were designed to protect public welfare.
Following promulgation of the NAAQS by EPA,
each state was required to adopt a plan, known as a
“state implementation plan” or “SIP,” to attain and
maintain the EPA-promulgated NAAQS by the dead-
lines established in the Act. Sections 107(a) and
110(a) (2), 42 U.S.C. 1857¢e-2(a) and 1857c-5(a) (2)
and 42 U.S.C, (Supp. IV) 7407(a) and 7410(a) (2).
For primary standards this date was generally 1975.
If the SIP provided for timely attainment and main-
tenance of the NAAQS and otherwise complied with
the requirements of the Act, the Administrator was
required to approve it. Section 110(a) (2), 42 U.S.C.
1857c-5 (a) (2) and 42 U.S.C. (Supp. IV) 7410(a) (2).
2. Many areas of the country failed to attain the
primary NAAQS by the deadlines established in the
1970 amendments. Congress accordingly amended
. the Act in 1977 to address this problem. Clean Air
Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat.
685. In Part D of Title I of the amended act* Con-
gress adopted special provisions to be applied in the
so-called nonattainment areas. Congress directed the —
states to submit substantially revised SIPs for the
Administrator’s approval. In order to be approved

* Pursuant to this authority, the Administrator has promul-
gated primary and secondary NAAQS for sulfur dioxide
(SO_), particulate matter, carbon monoxide (CO), nitrogen
dioxide (NO), photochemical oxidants and lead. 40 C.F.R.
Part 50.

* 42 U.S.C. (Supp. IV) 7501-7508.

5

by the Administrator, a revised SIP was required to
provide for attainment of the primary NAAQS by
December 31, 1982." In addition, revised SIPs were
required to comply with the provisions of Section
172(b) of the Clean Air Act, 42 U.S.C. (Supp. IV)
7502(b), including, inter alia, implementation of all
reasonably available control measures as expeditiously
as practicable, annual incremental reductions in emis-
sions from existing sources leading to “ieasonable
further progress” toward attainment, and a permit
program governing construction of “new or modified
major stationary sources” of air pollution.*

The permit program for new or modified sources is
commonly referred to as the new source review pro-
gram. Section 173, 42 U.S.C. (Supp. IV) 7503, es-
tablished four mandatory elements for such a pro-
gram. First, permits to construct may be issued only
if the owner or operator of a proposed new or modi-
fied major source obtains sufficient emission reduc-
tions in the region to offset the increased emissions
from that source, and allow for reasonable further

542 U.S.C. (Supp. IV) 7502(a)(1). If a state demon-
strated that it could not meet the 1982 deadline for attainment
of the primary NAAQS for carbon monoxide and ozone, the
Administrator was authorized to grant further extensioy to
December 31, 1987. 42 U.S.C. (Supp. IV) 7502(a) (2).

*Section 172(b)(2) and (38), 42 U.S.C. (Supp. IV)
7502(b) (2) and (3). A stationary source is defined as a
“major” one if it “directly emits or has the potential to emit,
one hundred tons per year or more of any air pollutant * * *.”
Section 302(j), 42 U.S.C. (Supp. IV) 7602(j). An existing
major source is “modified” whenever its emissions increase
by more than a de minimis amount, as determined by EPA.
See Sections 111(a) (4) and 171(4), 42 U.S.C. (Supp. IV)
7411(a) (4) and 7501(4) ; Alabama Power Co. v. Costle, 636
F.2d 328, 400 (D.C. Cir. 1979).

6

progress toward attainment, or, alternatively, if the
increased emissions will not exceed an allowance fvi'
growth budgeted by the state pursuant to Section
172(b) (5), 42 U.S.C. (Supp. IV) 7502(b) (5). See
Section 173(1), 42 U.S.C. (Supp. IV) 7503(1). See-
ond, the source must be equipped with state-of-the-art
emissions controls meeting a standard described as the
“lowest achievable emission rate.” Section 173(2),
42 U.S.C. (Supp. IV) 7503(2). Third, the permit
applicant must certify that all the other sources
owned, operated, or controlled by him in the state are
in compliance with the applicable SIP. Section 173(3),
42 U.S.C. (Supp. IV) 7503(8). Finally, no permit
may be issued unless the state is carrying out the appli-
cable implementation plan for the nonattainment area
in which the proposed source is to be located. Section
173(4), 42 U.S.C. (Supp. IV) 7503(4).

To prevent further degradation of air quality in
nonattainment areas while the states formulate their
revised SIPs, Congress required each state to impose
a limited conditional moratorium on the construction
or modification of major stationary sources in such
areas until EPA approves a revised Part D SIP. Sec-
tion 110(a)(2)(1), 42 U.S.C. (Supp. IV) 7410(a)
(2) (1).

3. Although the new source permit review pro-
gram and the construction moratorium each apply to
“major stationary sources,” the term “source” is not
defined in the Act for the purposes of the nonattain-
ment program. Since enactment of Part D, two com-
peting constructions of the term source have been sug-
gested. Under the first, a plantwide definition, an
entire plant is treated as a “source.” * Under such a

7 Such a definition is frequently described as employing a
“bubble” concept.

7

definition, when emissions from one process unit with-
in the plant are increased, or a new process unit is
added, the change need not undergo formal new
source review if the operator can reduce emissions
of the same pollutant elsewhere within the plant so
that total emissions do not increase by more than a
de minimis amount.* Under an alternative construc-
tion of the statute, each process unit within a plant
is viewed as a “source;” any major new process unit
or any significant increase in emissions from an ex-
isting unit triggers formal new source review, even
if aggregate emissions from the plant of which the
unit is a part decrease or remain the same.

b. In 1979, EPA proposed regulations to govern
the new source review programs contained in revised
SIPs required by Part D of the amended Clean Air
Act. 44 Fed. Reg. 51924, 51933. These rules would
have permitted states with approved revised SIPs to
adopt a “plantwide” definition of source. States with-
out approved revised SIPs, however, would have been
required to use a unit-by-unit definition of source un-
der which emissions from each part of a plant were
reviewed individually. /bid.

In the final new source review regulations promul-
gated on August 7, 1980, the Agency reversed itself.
It adopted what is commonly referred to as the “dual
definition” of “stationary sources.”” Under that defi-
nition, both an entire plant and discrete pieces of
pollutant-emitting equipment within a plant were
treated as “sources.” * The states were therefore re-

§ That is, if total emissions do not increase sufficiently that
the change is deemed a “modification” of the plantwide source
for purposes of the new source review. See supra p. 5 note 6.

* ee 40 C.F.R. 51.18(j) (1) (ii), (iii) (1981); and 40
C.F.R. 52.24 (f) (2), (3) (1981).

8

quired to subject new and modified emission produc-
ing equipment units located in nonattainment areas
to new source review under all circumstances where
emissions from the specific equipment increased by
more than threshold amounts (see supra p. 5 note 6)
irrespective of any actual effect upon aggregate plant
emissions or air quality. They were also required to
subject an entire plant to new source review if emis-
sions from the plant as a whole increased by more than
a threshold amount, even if no increase exceeding the
threshold occurred at any particular unit. See 45 Fed.
Reg. 52676, 52696-52698 (1980)."°

Seven months later EPA proposed to restore the
“plantwide” definition of source for nonattainment
new source review. 46 Fed. Reg. 16280 (1981) (82-
1247 Pet. App. 10a-18a). That definition was for-
mally promulgated on October 14, 1981. 40 C.F.R.
51.18(j) (1) (ii) ; 40 C.F.R. 52.24(f) (2) ; see 46 Fed.
Reg. 50.66 (1981) (82-1247 Pet. App. 19a-33a)."
EPA identified two concerns as warranting this

© In addition, the August 7, 1980 regulations treated sub-
stantially reconstructed process units as new sources. 40
C.F.R. 51.18(j) (1) (ix) (1981); 40 C.F.R. 52.24(f) (9)
(1981). The effect of this approach was to require formal
new source review of such reconstructed facilities even when
emissions were not greater than those of the equipment super-
seded. See supra p. 5 note 6 & p. 7 note 8.

'! In the October 14, 1981, regulations EPA also eliminated
the special reconstructed source rule that had been adopted
in 1980 (see supra note 10), explaining that in light of the
plantwide definition of source adopted, a reconstruction re-
quirement no longer was necessary. The agency anticipated
that an entire plant rarely would be reconstructed (82-1247
Pet. App. 25a-26a).

9

change. First, the revised definition conformed to the
definition previously established for stationary sources
under the separate Prevention of Significant Deteriora-
tion (PSD) program established by the 1977 Amend-
ments to the Act, Section 160-169, 42 U.S.C. (Supp.
IV) 7470-7479 (82-1247 Pet. App. 32a).’* Second,
EPA concluded that states should have discretion as+¢9
how to define “stationary sources,” provided that
their SIPs still meet the basic requirements of the
statute (id. 28a-25a). Accordingly, EPA explained
that states could shift to a plantwide definition only
if they could “demonstrate that their plans, as re-
vised, continue to demonstrate [reasonable further
progress] and attainment’—the fundamental statu-
tory requirements (82-1247 Pet. App. 24a).

4a. On November 18, 1981, the Natural Resources
Defense Council (“NRDC”), Citizens for a Better
Environment, Inc. and the Northwestern Ohio Lung
Association, Inc., filed a petition for review of the
EPA’s October 1981 regulations in the United States
Court of Appeals for the District of Columbia Circuit.”
NRDC argued that the amended definition was in-

‘2 The PSD program is designed to prevent the deteriora-
tion of air quality in areas in which ambient air is cleaner
than required by national standards. The agency adopted a
plantwide definition of “stationary sources” for PSD purposes
at the same time it adopted the dual definition for nonattain-
ment new source review. Maintenance of disparate definitions
was deemed burdensome by EPA because an area may be des-
ignated “attainment” for one pollutant and “nonattainment”
for another, and a single plant may therefore be subject to
both sets of rules.

‘Under Section 307(b) (1) of the Act, 42 U.S.C. (Supp.
IV) 7607 (b) (1), the D.C, Circuit has exclusive jurisdiction to
entertain actions for judicial review of nationally applicable
regulations promulgated by EPA.

10

valid for three reasons. First, it was alleged to con-
flict with what NRDC characterized as a longstanding
congressional understanding that the term “source”
comprehended each item of process equipment within a
plant. Second, NRDC argued that EPA’s plantwide
definition conflicted with the fundamental purposes
of the nonattainment program because it exempted
from new source review many new facilities that
would be subject to review under the dual definition.
Third, NRDC contended that under prior decisions of
the D.C, Cireuit, use of a plantwide source definition
was permissible only for programs intended for air
quality maintenance and was forbidden for programs
directed at air quality enhancement, such as the non-
attainment program established in 1977 in Part D of
the Clean Air Act.

In response, EPA observed first that neither the
statute nor the legislative history prescibed a par-
ticular definition of “source”. The agency argued
further that there was no evidence of a settled or
clear congressional understanding of the term. EPA
contended that given the absence of controlling lan-
guage or legislative history, adoption of the plantwide
definition was a reasonable exercise of its discretion.
EPA argued that its regulations carried out Con-
gress’ intention that economic growth be allowed to
occur in nonattainment areas to the extent consistent
with the drive toward attainment and the deadlines
for attaininent established by the 1977 Amendments.
Finally, EPA argued that the D.C. Circuit’s previous
decisions cited by NRDC were inapposite because the
regulatory programs considered in those decisions
were substantially different in design and purpose
from the Part D new source review program.

11

b. The court of appeals granted the petition for
review and vacated EPA’s October 14, 1981, regula-
tions (82-1005 Pet. App. A-20). The court did not
respond directly to EPA’s contentions; nor did it
rely on the primary arguments advanced by NRDC.
The court acknowledged (82-1005 Pet. App. A-8, A-17
note 39) that (as EPA contended) neither the statu-
tory language nor the legislative history prescribed
any definition for the term “stationary sources.” The
court nevertheless concluded that two of its prior de-
cisions, ASARCO, Inc. vy. EPA, 578 F.2d 319 (1978)
and Alabama Power Co, vy. Costle, 686 F.2d 328
(1979), required rejection of the Agency’s regula-
tions. Those decisions, in the court’s view, together
established (82-1005 Pet. App. A-16; emphasis added)

a bright line test for determining the propriety
of EPA’s resort to a bubble concept. The bubble
concept * * * is mandatory for Clean Air Act
programs designed merely to maintain existing
air quality; it is inappropriate * * * in programs
enacted to improve the quality of ambient air.
Pretermitting any view as to “the decision we
would reach if the line drawn in Alabama Power and
ASARCO did not control our judgment” (id. at A-4
note 7), the court summarily concluded that because
the overall objective of the entire nonattainment pro-
gram was to ameliorate air quality so as to achieve
conformity with national air quality standards, a
plantwide definition of the term source may not in
any circumstances be employed for purposes of the
new source review program (id. at A-17 to A-18).
The court deemed irrelevant to its consideration evi-
dence that Congress intended to allow the states a
substantial measure of flexibility in achieving the re-
quired air quality standards, and the fact that the

12

new source review program is but one facet of the
larger nonattainment program (id. at A-18 to A-19).
These considerations were thought not to reflect the
controlling purpose of the nonattainment program.
The court stated (id. at A-19)

In the Alabama Power-ASARCO context, “pur-
pose” clearly means goal, objective. The goal of
the nonattainment program is undoubtedly to im-
prove air quality in regions lagging behind in
meeting the NAAQSs.
In the court’s view that purpose precluded use of the
plantwide “stationary source” definition.”

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals is contrary to
well established limits upon the scope of judicial re-
view of administrative action. Remarkably, the
Agency’s regulation was invalidated even though the
court of appeals acknowledged that it was unable to
discern any controlling statutory language or legisla-
tive history. In the circumstances, the agency acted
well within its authority, Section 301(a)(1), 42
U.S.C. (Supp. IV) 7601(a) (1), to promulgate regu-
lations to carry out the purposes of the Act. And the
court of appeals was without authority to invalidate
the agency’s regulations so long as they rested upon
a reasonable interpretation of the Act. Train v. Nat-
ural Resources Defense Council, Inc., 421 U.S. 60, 86
(1975).

Instead of pointing to any controlling statutory
language or legislative history, the court of appeals’

™ The court also invalidated EPA's deletion of the recon-
structed facilities rule, pee supra p. 8 notes 10 & 11, reasoning
that that aspect of the’agency's action depended upon its adop-
tion of the plantwide source definition (82-1005 Pet. App.

A-19 to A-20).

13

decision rests upon a bright line rule ostensibly es-
tablished by its prior decisions, the application of
which turns upon the overall purpose of the statutory
program. But in the setting of this case the purpose
attributed to Congress is entirely an artifact—it does
not rest upon statutory language or legislative his-
tory, and thus reflects only the policy judgment of the
court of appeals. And the dichotomy applied by the
court of appeals caused it to reject as irrelevant criti-
cal features of the actual statutory design. Thus,
while the ultimate purpose of the nonattainment pro-
gram as a whole is assuredly to achieve an improve-
ment in ambient air quality, that mandate for im-
provement is not open-ended; the statutory objective
is attainment of specific air quality standards. More-
over, the new source review program is merely one
of an arsenal of tools which Congress required the
states to employ in the pursuit of those standards.
The statute and legislative history make-clear that
the states were to have substantial discretion as to
how the specific tools made available under the Act
were to be balanced in a state implementation plan.
The court of appeals’ conclusion that the air quality
improvement purpose of the nonattainment program
required adoption of a particular definition of a term
Congress did not define is accordingly unsound.
This Court has recognized that Congress intended
in the Clear Air Act to allow the states substantial
discretion in selecting the measures necessary to meet
the air quality improvement goals established by Con-
gress and the Agency. Train v. Natural Resources
Defense Council, Inc., supra, 421 U.S. at 79. The
decision of the court of appeals, however, requires the
Agency to disapprove implementation plans submitted
by 31 states even if they meet all of the requirements

14

of the Clean Air Act, simply because they provide for
attainment through strategies that accommodate a
plantwide approach to new source review. Absent a
compelling indication that Congress constrained the
agency to reject such plans—and none has been iden-
tified in this case—that is an impermissible result.

The question presented is of substantial national
importance, affecting the regulatory agencies of 31
states, and thousands of businesses subject to their
jurisdiction. Because exclusive jurisdiction in this
matter is by statute vested in the D.C. Circuit (save
only for this Court), and because that court declined
to reconsider its decision en banc, further review is
warranted.

1. The decision of the court of appeals signifi-
cantly alters the historic federal-state relationship
created by Congress to deal with air pollution, by de-
priving the states of flexibility to determine how they
will achieve the primary national ambient air quality
standards.

a. From the first congressional efforts in 1955 to
abate the problems of air pollution, Act of July 14,
1955, ch. 360, 69 Stat. 322, to the present, the indi-
vidual states have been vested with primary respon-
sibility for the control and prevention of air pollution
at its source. This was so under the Air Quality Act
of 1967, Pub. L. No. 90-148, 81 Stat. 485, and under
the comprehensive amendments adopted by Congress
in 1970, Pub. L. No, 91-604, 84 Stat. 1676. Although
the 1970 amendments sharply increased the federal
responsibility for air pollution control, they explic-
itly preserved the principle of state responsibility:
“(E]ach State shall have primary responsibility for
assuring air quality within the entire geographic
area comprising such State * * ©.” Section 107(a),

15

42 U.S.C. 1857¢e-2(a) and 42 U.S.C. (Supp. IV)
7407(a)." This Court described the federal-state
partnership in Train v. Natural Resources Defense
Council, Inc., 421 U.S. 60, 79 (1975):

The Agency is plainly charged by the Act with
the responsibility for setting the national 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. {Footnote omitted. ]

Congress did not abandon this principle in enacting
the 1977 Amendments to the Act. In Part D to the
1977 Amendments, 42 U.S.C. (Supp. IV) 7501-7508,
Congress developed a detailed strategy requiring the
revision of all state implementation plans for those
areas of the country that were not yet in attainment.
As the House noted, Part D had “two main pur-
poses :”

(1) to allow reasonable economic growth to con-
tinue in an area while making reasonable fur-
ther progress to assure attainment of the stand-
ards by a fixed date; and (2) to allow States
greater flexibility for the former purpose than
EPA’s present interpretative regulations afford.

H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 221
(1977) (emphasis added). In addition, the Senate
stated that a “fundamental concern” was “[t]he need
to augment the responsibility, authority, and effective-

'’ See also Section 101(a) (3), 42 U.S.C. 1857(a) (3) and
42 U.S.C. (Supp. IV) 7401(a) (3): “the prevention and con-
trol of air pollution at its source is the primary responsibility
of States and local governments.”

16

ness of State and local air pollution control programs”
because ‘“[t]he problem of air pollution exists at the
State and local level [which] is where the public
understands the problem [and] where the resources
must be directed.” S. Rep. No. 95-127, 95th Cong.,
Ist Sess. 10 (1977). Accordingly, Congress amended
the Act to give the states “additional time and flexi-
bility” (id. at 3) to revise their plans in order to at-
tain the ambient standards and meet the new require-
ments of Section 172(b), 42 U.S.C. (Supp. IV)
7502(b). As the Senate noted (S. Rep. No. 95-127,
supra, at 10):

The authority of States and localities to imple-
ment air pollution control programs within the
framework of a national policy must be encour-
aged. The framework proposed in this bill is
flexible in terms of the discretion in choosing
methods for attaining firm national goals. States
and localities are given broad discretion to make
decisions, while maintaining the minimum na-
tional air quality baselines designed to protect
health and welfare, prevent discrimination among
States, protect national resources within States,
and provide guidance on the technical and the
economic implications of various national pol-
a".

Proper implementation of the amendments in
this bill will significantly enhance the Federal-
State relationship and will provide the States and
localities with the flexibility they need, while at
the same time providing a mechanism to assure
that national policy is implemented.

Thus, it is clear that the Act and its legislative his-
tory reflect the continuing intention to leave states
considerable latitude in achieving the mandated emis-
sion reductions, both generally and with specific ref-
erence to the nonattainment program of Part D.

17

b. The court of appeals decision strips the states
of significant latitude in applying Part D in their
efforts to achieve attainment. As promulgated by
EPA, the plantwide definition of source is an op-
tional strategy that the states may, but need not, se-
lect, and that is available only under carefully limited
circumstances. In adopting a plantwide definition of
source for this program, the Agency has acted in
keeping with the Act. As promulgated by EPA, the
plantwide definition of source is available to the
states only if they “demonstrate that their plans, as
revised, continue to demonstrate [reasonable fur-
ther progress] and attainment,” and thus continue
to satisfy the basic statutory requirements (82-1247
Pet. App. 24a). And the plantwide definition does not
permit construction or modification of a process unit
unless any increased emissions are offset by decreased
emission from another component within the same
facility so that aggregate emissions do not increase
beyond a de minimis level. Thus, the plantwide defi-
nition gives states the flexibility and the authority to
determine how to structure their new source review
programs. Yet, it insures that the states remain sub-
ject to the overriding statutory command that their
state implementation plans satisfy the requirements
established by Congress."

There is no suggestion in the court of appeals’ opin-
ion that by employing the plantwide definition for

‘6 Promoting state flexibility is not an abstract concern. In
several areas around the country the major cause of non-
attainment is automobile-related pollutants (carbon monoxide
and ozone) and not stationary source emissions. Only by re-
ducing automobile emissions can attainment be expected in

18

new source review, the states would be unable to dem-
onstrate achievement of the attainment goals estab-
lished by Congress. The court apparently deemed
that question irrelevant (82-1005 Pet. App. A-18 to
A-19). Instead, the panel faulted the Agency for con-
ferring undue flexibility upon the states. Contrary
to the court of appeals’ suggestion (id. at A-19),
however, the Agency’s regulations do not allow the
states to determine whether federal! requirements
such as new source review should be applied. The
issue, of course, is not whether a state must have
a new source review program as part of its revised
state implementation plan. Clearly it must. Rather,
the question is whether the states may he allowed
to determine the scope to be afforded that program
and latitude to employ those strategies they find
most effective in meeting the attainment goal es-
tablished by Congress, when the statutory language
does not require a particular choice of strategy.
Train v. Natural Resources Defense Council, Inc., su-
pra, 421 U.S. at 69; and Union Electric Co. v. EPA,
427 U.S. 246, 266 (1976), strongly suggest that such
latitude exists under the Act. The court of appeals’
decision, however, compels EPA to disapprove any
SIP employing a plantwide definition, even where the
state has demonstrated that an equipment-specific
definition of source is not necessary to insure timely

such areas. Hence, it makes little sense to force a state to
expend its resources performing full-blown reviews of modifi-
cations of stationary sources when such review will have little
material impact on ambient air quality. It is far more fruitful
to allow such a state to focus its energies on more productive
pollution reduction endeavors. The plantwide definition of
source allows for precisely this sort of flexibility.

19

attainment of the standards. The result is plainly
contrary to congressional intent, and this Court’s
decisions.

2. In repudiating the Agency’s definition of source
for failing to satisfy the “purpose” of the nonattain-
ment program, the court of appeals violated estab-
lished principles of judicial review. This Court has
“accorded great deference to the Administrator’s con-
struction of the Clean Air Act.” Union Electric Co.
v. EPA, supra, 427 U.S. at 256. The Agency’s inter-
pretation of the Act need only be “sufficiently reason-
able” to survive judicial scrutiny. Train v. Natural
Resources Defense Council, Inc., supra, 421 U.S. at
87. These principles apply with special force, we sub-
mit, when Congress has given no guidance on an issue
that the Agency is perforce obliged to address. See
FCC y. National Citizens Committee For Broad-
casting, 486 U.S. 775, 813-814 (1978).

The decision below is irreconcilable with these fun-
damental tenets of judicial review. The court ac-
knowledged that neither the statutory text nor its
legislative history offered any clear guidance respect-
ing the meaning to be assigned to the term “station-
ary sources” (82-1005 Pet. App. A-8, A-17, n.39).
Yet, the Agency’s effort to fill this statutory vacuum
was rejected because it wa> thought to be out of
harmony with the larger purpose of the nonattain-
ment program as a whole. Both the court’s analytical
approach and its understanding of the Clean Air Act
were seriously flawed.

a. According to the court of appeals, for the pur-
pose of defining a source, every program under the
Clean Air Act has one of two purposes: enhancement
of air quality or maintenance of existing air quality.
In the court’s view, if the provisions of the Act for

20

which a plantwide definition have been proposed fall
on the enhancement side of this “bright line,” such a
definition is precluded. If the provisions for which
the definition has been proposed pertain to mainte-
nance, the definition is mandatory. Just as the court’s
decision deprives states of flexibility in implementing
a key provision of the Act, it also strips the Agency
of any discretion to interpret it. As a result of the
court’s test, the Agency never has any discretion to
define what a source is—a remarkable conclusion
given Congress’ silence on the subject.

The application given this judicial litmus test is
unacceptable for two additional reasons. First, the
court of appeals did not even suggest that the result
of its application conforms to congressional intent,
which, of course, is the proper standard for deter-
mining the validity of the agency’s regulations. The
court’s insistence that its decision was compelled by a
“bright line’ test derived from its other decisions
should not be permitted to disguise the fact that the
court’s decision, because not based on legislative in-
tent, represents a departure from the “narrow con-
fines of the law into the more spacious domain of
policy” (Phelps Dodge Corp. v. NLRB, 313 U.S. 177,
194 (1941)).

Second, the court of appeals’ reasoning rides rough-
shod over the statutory design. The new source re-
view program is but one component of the larger non-
attainment program. The nonattainment program it-
self requires improvement of air quality to meet fixed
standards; it is not a mandate for the maximum
feasible reduction in emissions. Accordingly, it sim-
ply does not follow from the overall ultimate purpose
of the nonattainment program that new source re-
view must be applied on a unit-by-unit basis rather
than a plantwide basis. Thus, EPA’s 1981 regulations

21

are fully consistent with the purpose of the nonattain-
ment program as reflected in the statutory language
itself.

b. The court of appeals’ prior decisions in ASARCO
and Alabama Power do not support its decision in
this case. In each of those cases the court of appeals
undertook to determine whether a plantwide definition
of sources subject to a particular Clean Air Act
program was consistent with legislative intent. In
ASARCO, the court of appeals concluded that appli-
cation of a plantwide approach under the technology-
based new source performance standards (NSPS)
program was contrary to legislative intent. 578 F.2d
at 327-329." In Alabama Power, by contrast, the
court held that use of a plantwide definition was man-
datory under the Prevention of Significant Deteriora-
tion (PSD) program because Congress intended
sources to undergo review “only where industrial
changes might increase pollution in an area, not
where an existing plant changed its operations in
ways that produced no pollution increase.” Alabama
Power, supra, 636 F.2d at 401.

Although the D.C. Circuit took pains in Alabama
Power to distinguish its holding there from its prior
holding in ASARCO, it did not do so on the basis of
the “bright line” test suggested by the panel here.
The distinction recognized was tied instead to funda-
mental differences in regulatory design between the
NSPS and PSD programs. This was not the sim-
plistic dichotomy between air quality enhancement
and maintenance constructed by the panel in this case.
Rather, the distinction observed was between the

‘The new source performance standards program was
created by Section 111 ef the Act in 1970, see 42 U.S.C. 1857c-
6 and 42 U.S.C. (Supp. IV) 7411, and applies irrespective of
the air quality of an area.

22

technology-forcing design of the NSPS program,
which requires the installation of stringent emission
controls on new emission producing equipment with-
out regard to existing air quality, see ASARCO, su-
pra, 578 F.2d at 328-329, and the intent of the PSD
program, which is concerned with the impact of new
source construction: on existing air quality. Alabama
Power, supra, 636 F.2d at 401.

Differences between the NSPS program and the non-
attainment new source review program are of criti-
cal significance here. As discussed above, the NSPS
program is a technology-based program that applies
without regard to the impact of a regulated facility’s
emissions on ambient air quality. NSPS requirements
apply whether or not ambient standards have been
attained and continue to apply for the life of the
plant. The NSPS program employs a single means:
a long-term, technology-forcing program designed to
increase the pollution control efficiency of industrial
plants as capital stock is replaced. In contrast, the
nonattainment new source review program is in-
extricably linked to ambient air quality. It is called
into play only in those areas in which national am-
bient air quality standards have not been attained,
and its application terminates when the standards
have been achieved."* In addition, the nonattainment

18 The panel declined to distinguish between the NSPS pro-
gram and the nonattainment new source review program,
noting that the latter program contains a technology-forcing
component as well (82-1005 Pet. App. A-16 n.38). What the
court failed to realize is that the PSD program also contains
a technology-forcing component. See Section 165(a) (4), 42
U.S.C. (Supp. IV) 7475(a) (4). Hence, the mere existence
of a technology-forcing component is no basis for rejecting
the suggested distinction. The issue is not whether a program
contains a technology-forcing component, but when the pro-
gram, with its technology-forcing component, should be trig-
gered. In the Agency's view, the Part D new source review

23

program employs several different strategies, of which
new source review is but one, to ensure attainment of
the national standards,”

The decision of the court of appeals in this case is
thus unsupported by the rationale of its prior deci-
sions. In place of the analysis employed in the court’s
prior decisions, which focused upon congressional-owet
intent, the court has now drawn an arbitrary line
that does not respond to actual legislative intent, and
that allows no room for exercise of administrative
discretion in circumstances, such as those presented,
where Congress has not confined the Agency in its
implementation of the Act.

3. The issue presented by this case is of substantial
practical importance, for, pursuant to the Agency’s
regulations, 31 states have sought to adopt a plant-
wide approach to new source review. Under the court
of appeals’ decision, however, the Agency is compelled
to disapprove those states’ SIPs and to require the
submission of revised versions that return to a dual
definition of source. If new source review may not
be conducted on a plantwide basis, each state will be
required to carry out time-consuming preconstruction

program, like the PSD program, should be triggered only
when emissions will increase by more than a de minimis
amount.

'° See supra p. 5. The provisions of the nonattainment pro-
gram directed at reduction of existing excessive emissions
were necessarily the primary instrument adopted for achiev-
ing attainment. The new source review program was never
intended to carry the full load of insuring attainment of the
national standards; on the contrary, it was principally de-
signed to make certain that emissions from new or modified
sources do not undercut a state’s affirmative attainment

strategy.

24

review of individual modifications to existing plants,
even if the state demonstrates, and EP.\ finds, that
such reviews are not necessary to ensure attainment
and maintenance of the national standards. More-
over, in adopting the 1981 regulations, the agency de-
termined that the plantvide definition would remove
disincentives to plant modernization (82-1247 Pet.
App. 26a). The decision of the court of appeals may
accordingly have adverse economic impacts that are
not required by the terms of the Clean Air Act.

Finally, review by this Court is necessary because
there is no possibility of litigating the issue further
in another court of appeals. Pursuant to Section
307(b) (1), 42 U.S.C. (Supp. IV) 7607(b) (1), the
D.C. Circuit has exclusive jurisdiction to review EPA
regulations of nationwide applicability. Further re-
view is available only in this Court.

To be sure when Congress revisits the Clean Air
Act, it may speak to this issue and provide a defini-
tion for the term at issue in this case. But given
Congress’ failure to act in the past, uncertainty as
to whether and when it will act in the future, and
the present importance of the issue, review by this
Court is warranted at this time.

25

CONCLUSION

The petition for a writ of certiorari should be
granted.

Respectfully submitted.

REX E, LEE
Solicitor General

CAROL E. DINKINS
Assistant Attorney General

JOSE R, ALLEN
NANCY S. BRYSON
Attorneys

WILLIAM F. PEDERSEN
CHARLES S. CARTER
Attorneys

Environmental Protection Agency
Washington, D.C. 20460

MARCH 1988

WU. 8. GOVERNMENT PRINTING OFFICE, 1903 40196! 1315

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0692%3A1. Public record. Not legal advice.