Petition for Writ of Certiorari — Environmental Protection Agency v. Environmental Council of Sacramento, Inc.

Iu the Supreme Court of the United States

OCTOBER TERM, 1992

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, PETITIONER

ENVIRONMENTAL COUNCIL OF SACRAMENTO, INC..

ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEAL!

FOR THE NINTH CIRCUIT

S.

KENNETU W. STARR

Solicitor Gene ral

VICKI A. O’MEARA

Act ig A sistant \tto / / (re

LAWRENCE G. WALLACE

De Dp ity No] citor General

THOMAS G. HUNGAR

ASs fant to the Solicito (renera

DAVID C. SHILTON

KAREN L. EGBERT

Atto pee ye

De parime ne of Ju stice

Washington, D.C. 20530

(202) 514-2217

RAYMOND B. LUDWISZEWSKI

Acting General Counsel

Environmental Protection Agency

Washington, D.C. 20460

QUESTION PRESENTED

Whether, despite Congress’s determination that the

development of local air pollution control measures

under the 1990 Amendments to the Clean Air Act

is initially the responsibility of State and local gov-

ernments, EPA is required to promulgate federal air

pollution control plans for major urban areas in

California because EPA found in 1988 that California

had failed to meet requirements of the pre-1990

Act, even though those requirements were later re-

pealed by the 1990 Amendments and replaced with

new requirements that California has not yet had

the opportunity to meet.

II

PARTIES TO THE PROCEEDINGS BELOW

In addition to the parties named in the caption,

the United States Department of Transportation, the

City of Sacramento, the Sacramento Area Council

of Governments, Capital Gateway, Fong Ranch,

William Payne, Kern Schumacher, Milburn Reid,

Donald Ketscher, B & B Sons Enterprises, Centennial

Development Co., and Whitney Properties were de-

fendants in the district court; the Sierra Club was a

plaintiff in the district court and appellee in the court

of appeals.

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statutory provisions involved

Statement

Reasons for granting the petition

Conclusion

Appendix A

Appendix B

Appendix ©

TABLE OF AUTHORITIES

Case:

Abramowitz v. EPA, 832 F.2d 1071 (9th Cir.

1987)

Statutes:

Clean Air Act, 42 U.S.C. 7401 ef seq.

§$110(a) (1) (A), 42 U.S.C. 7410 (a) (1) (A)

§ 110(c) (1), 42 U.S.C. 7410(c) (1) (Supp. [1

1990)

$110(c) (1) (B), 42 U.S.C. 7410(c) (1) (B)

§ 172(a) (1), 42 U.S.C. 7502 (a) (1)

§§ 181-182, 42 U.S.C. 7511-75lla (Supp. I]

1990)

§$ 181 (a), 42 U.S.C. 7511(a) (Supp. IT 1990)

§ 182(b) (1), 42 U.S.C. 751la(b) (1) (Supp

II 1990)

§ 182(c) (2), 42 U.S.C. 75lla(c) (2) (Supp. I!

1990)

© 182(c) (2) (A), 42 U.S.C. 751la(c) (2) (A)

(Supp. II 1990)

§ 182(c) (2) (B), 42 U.S.C. 75lla(c) (2) (B)

(Supp. IT 1990)

§ 182(c) (2) (C), 42 U.S.C. T5lla(c) (2) (C)

(Supp. TI 1990)

(111)

h bo

IV

Statutes—Continued: Page

$182(¢), 42 U.S.C. TS5lla(g) (Supp. I!

1990)

v0

$ 193, 42 U.S.C. 7515 (Supp. II 1990) 5

Clean Air Act Amendments of 1970, Pub. L. No.

91-604, 84 Stat. 1676 2

Clean Air Act Amendments of 1990, Pub. L. No.

101-549, 104 Stat. 2399 4

Miscellaneous:

48 Fed. Reg. 5074 (1983) 3

49 Fed. Reg. (1984) :

p. 30,300 3

p. 30,305... 3

52 Fed. Reg. (1987):

p. 26,431 8

p. 26,434 8

53 Fed. Reg. 48,535 (1988) 4

56 Fed. Reg. (1991):

p. 56,694 .... 4

p. 56,728 4

57 Fed. Reg. (1992) :

p. 10,749 cates SEN ears 6

p. 22,194 3-4, 6, 9

p. 22,195 4

Iu the Supreme Court of the Tuited States

OCTOBER TERM, 1992

No.

rep STATES ENVIRONMENTAL PROTECTION

AGENCY, PETITIONER

cna

7

i

ENVIRONMENTAL COUNCIL OF SACRAMENTO, INC.,

ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the Environ-

mental Protection Agency, petitions for a writ of

certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit in

this case.

OPINIONS BELOW

The order of the court of appeals (App., ‘nfra, la)

is unreported. The opinion of the district court

(App., fra, 2a-6a), is also unreported.

JURISDICTION

The judgment of the court of appeais was entered

on July 9, 1992. On September 28, 1992, Justice

(1)

~

©’Connor extended the time for filing a petition for

a writ of certiorari to and including November 6,

1992. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Clean Air Act, 42

U.S.C. 7401 et seqg., are reproduced at App., infra,

7a-10a.

STATEMENT

This case raises the question whether the Clean

Air Act, as amended in 1990, requires the Environ-

mental Protection Agency (EPA) to promulgate a

federal air pollution control plan for large portions

of California merely because EPA found in 1988

that California had failed to meet requirements of

the pre-1990 Act, requirements that were repealed by

the 1990 Amendments. This question is the subject

of EPA’s petition for a writ of certiorari in United

States Environmental Protection Agency, et al. v.

Coalition for Clean Air, et al., also filed today. The

instant case was decided by the same panel of the

Ninth Circuit that rendered the decision in Coalition

for Clean Air. The panel’s brief order affirming the

judgment of the district court in this case relies

entirely on the panel’s earlier decision in Coalition

for Clean Air.

1. As described in more detail in our petition in

Coalition for Clean Air, the Clean Air Act Amend-

ments of 1970, Pub. L. No. 91-604, 84 Stat. 1676,

required each State to submit to EPA state imple-

mentation plans (SIPs) for achieving and maintain-

ing national ambient air quality standards. Section

110(a) (1) (A), 42 U.S.C. 7410(a) (1) (A). The 1977

3

Amendments allowed EPA to extend the deadline for

attainment of the primary air quality standards i

certain “nonattainment areas.” Section 172(a) (1),

12 U.S.C. 7502(a) (1).

California requested, and EPA approved, an ex-

tension of the statutory attainment date for ozone

in the Sacramento Air Quality Management Area to

December 31, 1987. In 1982, the State submitted an

updated ozone SIP for Sacramento. EPA initially

proposed to disapprove the revised SIP on grounds

that the plen did not provide for attainment of the

ozone standard by 1987. 48 Fed. Reg. 5074 (1983).

On July 30, 1984, EPA took final action to approve

the contro] measures submitted by the State, but left

open the question whether to approve the attainment

demonstration in the Sacramento SIP. 49 Fed. Reg

30,300, 30,305 (1984). Thereafter, in November

1987, the Ninth Circuit held in Abramowitz v. EPA,

832 F.2d 1071 (1987), that EPA lacks authority to

defer action on a State’s attainment demonstration

while approving the control measures submitted with

that demonstration.

2. In March 1987, the Environmental Council

Sacramento and the Sierra Club [hereinafter re-

spondents] filed this action in the United States Dis-

trict Court for the Eastern District of California,

alleging infer alia that EPA had a nondiscretionary

duty to disapprove the 1982 ozone SIP for Sacra-

mento and to promulgate an ozone federal implemen-

tation plan (FIP) for the Sacramento nonattainment

area.’ Pursuant to an initial agreement with the re-

' At the time the lawsuit was filed, the Sacramento non-

attainment area included Sacramento County, Yolo County,

and nortions of Placer and Solano Counties. The Sacramento

nonattainment area boundaries have since been extended to

include portions of Sutter and El Dorado Counties. See 57

2S

4

spondents, EPA took final action to disapprove the

1982 ozone SIP on December 1, 1988. 53 Fed. Ree.

48,535 (1988). Subsequently, respondents and EPA

negotiated a settlement containing a schedule by

which EPA would propose and promulgate a federal

implementation plan for ozone. The settlement agree-

ment, which was approved by the district court on

June 26, 1989, provided that EPA could move to

vacate the settlement in the event that pending legis-

lation affected is obligations to promulgate a FIP.

3. On November 15, 1990, the President signed

into law the Clean Air Act Amendments of 1990,

Pub. L. No. 101-549, 104 Stat. 2399. Those Amend-

ments deleted the provisions of Section 172 requiring

that SIPs demonstrate attainment by 1982 or, if an

extension had been approved, by December 31, 1987.

Instead, the 1990 Amendments imposed new require-

ments for ozone nonattainment SIPs. Sections 181,

182, 42 U.S.C. 7511, 751la (Supp. II 1990).

Pursuant to the 1990 Amendments, the Sacramento

area is Classified as a “serious” area for ozone non-

attainment. For an ozone area classified as “serious,”

the primary ozone NAAQS must be attained as ex-

peditiously as practicable, but not later than nine

years after enactment of the Amendments. Section

181(a), 42 U.S.C. 7511\a) (Supp. IT 1990). A State

containing an area classified as ‘‘serious’” must sub-

mit, within four years of enactment, a demonstration

that the area’s ozone SIP will achieve attainment by

the 199% attainment date. Section 182(c)(2), 42

U.S.C. 751la(c) (2) (Supp. IIT 1990). In addition,

the Part D ozone SIP for the “serious” Sacramento

Fed. Reg. 22,194, 22,195 n.1 (1992); 56 Fed. Reg. 56,694,

56,728 (1991).

)

area Must meet new milestones for interim reductions

In emissions. 42 U.S.C. 751la(b) (1), (¢) (2) (A),

(B), (C), and (g) (Supp. If 1990). As described in

our petition in Coalition for Clean Air, moreover, the

1990 Amendments also substantially revised Section

110(¢) with respect to the circumstances under which

KPA would have to prepare FIPs. 42 U.S.C. 7410

(c) (1) (Supp. Il 1990).

4. After reviewing the language and legislative

history of the 1990 Amendments, which wrought

comprehensive changes in the operation and structure

of the Act, the EPA concluded that its pre-1990

obligations to promulgate FIPs in areas where it had

found SIPs inadequate had been eliminated by the

1990 Amendments. Accordingly, EPA filed a motion

to vacate the settlement in the Coalition for Clean Air

case, then pending in the United States District Court

for the Central District of California. After that

court ruled in EPA’s favor, EPA filed a similar mo-

tion in the instant case, asking the district court be-

low to vacate the settlement agreement and dismiss

the complaint in light of the 1990 Amendments.

The district court denied EPA’s motion. App.,

infra, 2a-6a.° The district court found that the rele-

vant language of the 1990 Amendments was ambigu-

ous, but declined to defer to EPA’s interpretation of

the 1990 Amendments because it concluded that the

Agency’s interpretation had changed over time. App.,

“The district court agreed with the Coalition for Clean

Air district court’s conclusion that the savings clause of the

1990 Amendments, Section 193, 42 U.S.C. 7515 (Supp. II

1990), did not apply to the settlement agreement in this

case, because an agreement to promulgate a FIP is not a

“control requirement” within the meaning of the savings

clause. App., (fra, 4a.

6

infra, da-da. The district court observed that, prior

to enactment of the 1990 Amendments, the EPA

Administrator had sent a letter to the House of Rep-

resentatives taking the position that the Amendments

would require EPA to comply with “ ‘current FIP

obligations.’ /d. at 5a. In the court’s view, this

pre-enactment letter, rather than the Agency’s post-

enactment analysis of the 1990 Amendments, consti-

tuted the contemporaneous agency interpretation of

the amended Act to which judicial deference was due.

lbid.

5. EPA appealed to the United Siates Court of

Appeals for the Ninth Circuit, and the case was sub-

mitted to the same panel that had already heard

argument in the appeal in the Coalition for Clean Air

case.” On July 1, 1992, that panel ruled in Coalition

‘After EPA filed its appeal in this case, the parties agreed

that the Ninth Circuit’s decision in the Coalition for Clean

Avr case would likely determine EPA’s duties in this case.

Accordingly, the parties entered into a stipulation modifying

the settlement agreement to provide that in the event the

Coalition Accision established EPA’s duty to promulgate a

FIP, EPA would issue a proposed FIP for Sacramento within

four months of issuance of the mandate in the Coalition case,

and a final FIP six months thereafter. See 57 Fed. Reg.

10,749 (1992). This stipulation also provided that EPA

would in the interim publish a list of control measures that

it would include in any proposed FIP, rank those measures,

and estimate emission reductions from each measure. EPA

published this listing on May 27, 1992. 57 Fed. Reg. 22,194

(1992).

In an order issued on September 29, 1992, Circuit Judge

Norris granted EPA’s motion to stay issuance of the man-

date in Coalition for Clean Air pending review by this Court.

Under the terms of the above-referenced stipulation, that

order also acted to stay EPA’s obligations with respect to

the Sacramento FIP. On October 8, 1992, respondents in

ee

7

for Clean Air that new Section 110(c)(1)(B) re-

tains pre-existing FIP obligations, even where (as

here) the statutory provisions forming the basis for

those obligations have been repealed by the 1990

Amendments. On July 9, 1992, the court of appeals

panel issued a one-paragraph order affirming the

judgment of the district court in the instant case on

the basis of the court’s opinion in Coalition for Clean

Air. App., infra, la. Judge Noonan dissented, for

the reasons given in his dissent in Coalition for Clean

Air. Lbid.

REASONS FOR GRANTING THE PETITION

This case raises legal issues identical to those

presented in the petition for a writ of certiorari in

United States Environmental Protection Agency et al.

v. Coalition for Clean Air, et al., filed concurrently

with the filing of this petition. Accordingly, this peti-

tion should be held and disposed of in light of this

Court’s disposition of the petition in Coalition for

Clean Air.

1. Just as in Coalition for Clean Air, the decision

below interprets the 1990 Clean Air Act Amendments

to preserve EPA’s pre-1990 obligation to promulgate

a FIP in lieu of a SIP that had been disapproved

under the pre-1990 version of the Act, even though

the particular requirement of the Act that gave rise

to that disapproval has been eliminated as a_ re-

sult of the 1990 Amendments. As explained more

this case moved the district court for an order modifying the

settlement so that EPA’s duties would no longer be tied to

the mandate in Coalition for Clean Air, but would run instead

from the date of the court of appeals mandate in the instant

case, which issued on July 31, 1992. EPA filed an opposition

to that motion on October 30, 1992, and the matter is now

under submission.

8

fully in our petition in Coalition for Clean Air, the

court of appeals’ ruling dramatically alters the man-

ner in which Congress chose to implement the new

Amendments. The decision forces EPA te promui-

gate a FIP for the Sacramento area before the State

of California has had an opportunity to produce a SIP

implementing the requirements of the 1990 Amend-

ments, even though Congress plainly intended that

EPA would be called on to produce a FIP only if—

and only to the extent that—the State has first failed

to meet its obligations under the amended Act after

having been given an opportunity to meet those

obligations.

2. This case also is like Coalition for Clean Air

in the dramatic impact the decision below is likely to

have on the residents and economy of the Sacramento

area. The Sacramento ozone-nonattainment area in-

cludes two urban counties and parts of four rural

counties with a 1990 population of 1.6 million. Rapid

population growth is expected in the 1990s. The area

currently has the sixth largest number of average

expected exceedances of the ozone standard in the

country. Less than 10‘. of emissions of ozone

precursors come from stationary sources. 52 Fed.

Reg. 26,431, 26,484 (1987). Accordingly, emission

reduction strategies will have to be targeted pri-

marily at mobile sources, as well as at area sources

such as pesticide application and architectural coat-

ings. As explained in the petition in Coalition for

Clean Air, EPA does not have the same range of

techniques at its disposal to regulate these sources

as do state and local authorities.

Moreover, since Sacramento is designated as a

“serious” nonattainment area for ozone, the FIP

must seek to attain the relevant national standard by

1999. This could require massive near-term reduc-

CO heed

tions in emissions of ozone precursors. See 57 Fed.

Reg. 22,194, 22,196 (1992) (suggesting that attain-

ment of the ozone standard in the Sacramento area

will require 75‘. reduction in emissions over a five-

year period). In addition, recent data indicate that

Sacramento’s air pollution violations may be caused,

on many occasions, by transport of pollution from the

San Francisco Bay area or the San Joaquin Valley.

In light of these unresolved issues regarding pollu-

tion transport, premature promulgation of a FIP

could result in draconian control measures that are

either counterproductive or unnecessary. Thus, the

decision below is likely to have disruptive effects in

the Sacramento area similar to those that the deci-

sion in Coalition for Clean Air threatens in the Los

Angeles area.

10

CONCLUSION

The petition for a writ of certiorari should be held

and disposed of in light of this Court’s disposition of

the petition for a writ of certiorari in Coalition for

Clean Air.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

VICKI A. O’MEARA

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

THOMAS G. HUNGAR

Assistant to the Solicitor General

DAVID C. SHILTON

KAREN L. EGBERT

Attorneys

RAYMOND B. LUDWISZEWSKI

Acting General Counsel

Environmental Protection Agency

NOVEMBER 1992

ee

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 92-15293

I.NVIRONMENTAL COUNCIL OF SACRAMENTO, INC.,

ET AL., PLAINTIFFS-APPELLEES

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

DEFENDANTS-APPELLANTS

[Filed July 9, 1992]

ORDER

3efore: Goodwin, Norris, and Noonan, Circuit

Judges.

Appellants’ and appellees’ joint motion to submit

this case to the panel considering the appeals in

Coalition for Clean Air v. EPA, Nos. 91-55383, 91-

95386, is GRANTED based on the parties’ joint stip-

ulation. The judgment of the district court is AF-

FIRMED. Coalition for Clean Air v. EPA, Nos.

9171-55585, 91-55586 (9th Cir. 1992).

NOONAN, Circuit Judge: ;

‘or the reasons given by me in Coalition for Clean

Air v. KPA, Nos. 91-55383, 91-55386, I respectfully

dissent.

(la)

9

za

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

Civ. No. S-87-420 EJG

IS NVIRONMENTAL COUNCIL OF SACRAMENTO, INC.,

ET AL., PLAINTIFFS

L.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

DEFENDANTS

[Filed Dee. 2, 1991]

ORDER

The matter is before the court on defendant FEn-

vironmental Protection Agency’s (“EPA”) motion

to vacate the stipulation of settlement and order

thereon and to dismiss the complaint. In this action,

plaintiffs seek to compel EPA to promulgate a federal

implementation plan (“FIP”) for attainment of the

primary National Ambient Air Quality Standards

(“NAAQS”) for ozone for the Sacramento area, pur-

suant to the Clean Air Act (“Act’).' On April 17,

1989, plaintiffs and defendant EPA entered into a

settlement agreement, subsequently modified twice by

stipulation and order, under which EPA agreed to

“undertake the promulgation of a FIP for the attain-

142 U.S.C. §§ 7401 et seq.

3a

ment and maintenance of the primary NAAQS for

ozone for the Sacramento area.” The action was then

stayed.

Last year, the Clean Air Act Amendments of 1990

(“Amendments”) were signed into law. Pub. L. No.

101-549, 104 Stat. 2399 (codified at 42 U.S.C. §$ 7401

et seq. (1990) ). EPA contends that the Amendments

have vitiated the legal foundation underlying the

agency’s obligation to promulgate a FIP in the Sacra-

mento area. Plaintiffs, however, dispute the point vig-

orously, and argue that EPA retains its obligation to

promulgate a FIP even under the amended Act.

The parties have briefed the matter thoroughly,

and the court heard extensive ora] argument at the

November 15, 1991 hearing on the motion. The par-

ties have addressed several concerns raised by the

undersigned, and the court is now prepared to rule on

the motion.

The Act, as amended, provides, in relevant part,

that the EPA Administrator “shall promulgate a Fed-

eral implementation plan at any time within 2 years

after the Administrator— ... (B) disapproves a

state implementation plan submission in whole or in

part... .” 42 U.S.C. § 7410(c) (1990). The ques-

tion presented is whether the disapproved state plan

to which the statute refers may be, as plaintiffs con-

tend, a plan previously disapproved by the agency

under the old law or whether, as the agency asserts,

the state plan must be one promulgated subsequent

to enactment of, and under the terms of, the new law.

As both sides note, United States District Judge

Hupp of the Central District of California recently

considered and ruled on the very issues now before

this court. See Coalition for Clean Air v. E..P.A., 762

F. Supp. 1399 (C.D. Cal. 1991). Judge Hupp’s opin-

4a

ion is thorough and well-reasoned, and this court

agrees with his analyses of the statute’s ambiguity

and of the “savings clause” provision,” which analyses

do not now bear repetition. However, the undersigned

must part company with Judge Hupp as to the degree

of deference to be accorded EPA’s interpretation of

the Amendments under the peculiar circumstances

presented and must also differ with Coalition for

Clean Air as to the significance of the language of a

prior version of the statutory provision at issue.

Where, as here, a statute is ambiguous with re-

spect to a specific issue, but the agency which must

administer the statute has construed it, the court must

determine whether the agency’s answer is based on

a permissible construction of the statute. Chevron,

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

Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 2781-82

(1984). This is so because considerable weight should

be accorded to an executive department’s construction

of a statutory scheme it is entrusted to administer.

Id., 467 U.S. at 843, 104 S. Ct. at 2782. However, an

agency interpretation of a relevant provision which

conflicts with the agency’s earlier interpretation is en-

titled to considerably less deference than a consistently

held agency view. J.N.S. v. Cardoza Fonseca, 480

U.S. 421, 466, 107 S. Ct. 1207, 1221 n.30 (1987).

Here, the agency’s interpretation of the relevant

provision has plainly changed over time. In a May

22, 1990 letter criticizing the House of Representa-

tives for retaining mandatory FIP provisions, EPA

Administrator William Reilly noted that ‘‘[t]he House

has [deleted] language that relieved EPA of its cur-

rent obligations to complete federal implementation

* Pub. L. 101-549, Title I, § 108(1), 104 Stat. 2469 (codified

at 42 U.S.C. § 7515 (1990) ).

cance

ba

plans (FIP’s) ... In light of the new regime for

state plan submissions, it makes no sense for EPA

to impose FIPs before the states have had a chance to

meet their new obligations . . . In addition to current

FIP obligations, the House Committee bill requires

KPA to promulgate comprehensive FIPs in the fu-

ture....” 136 Cong. Ree. H2771, H2887 (daily ed.

May 23, 1990) (emphasis added).

Thus, the agency’s contemporaneous construction of

the statute was in harmony with plaintiffs’ present

position. Now, however, EPA contends that § 7410(c)

has the opposite effect—viz, that it relieves the

agency’s current FIP obligations. Plaintiffs suggest

that this indicates that the agency, having failed to

get what it wanted from Congress, is now attempting

to achieve the same result in the courts. While there

may be some merit to this argument (see infra), the

court need not speculate on this. For our purposes,

the critical fact is that the agency’s contemporaneous

construction carries persuasive weight, while its cur-

rent interpretation, being in conflict with its initial

position, is entitled to considerably less deference.

Watt v. Alaska, 451 U.S. 259, 272-73, 101 S. Ct. 1678,

1681 (1982). The court is therefore inclined to defer

to the agency’s initial construction, and conclude that

amended § 7410(c) maintains EPA’s existing FIP

obligations.

Further support for this conclusion lies in the fact

that Congress contemplated, but rejected, an interim

version of the Amendments which would have made

FIP’s discretionary rather than mandatory. As EPA

Administrator Reilly noted, this version of the bill

would have “relieved EPA of its current obligations

to complete” FIP’s. 136 Cong. Rec. H2771, H2887

(daily ed. May 23, 1990). Of course, the rejected ver-

6a

sion would also have had much broader consequences :

the bill, by making FIP’s entirely discretionary, would

have eliminated EPA’s current and future obligations

to promulgate FIP’s under any circumstances. Thus,

Congress may well have rejected this approach to

prevent this broader result, rather than simply to

maintain EPA’s existing FIP obligations. Nonethe-

less, it is well-settled that when Congress deletes from

its final product a provision that appeared in an

earlier version of the legislation, “its action strongly

militates against a judgment that Congress intended

a result that it expressly declined to enact.” Gulf Oil

Corporation v. Copp Paving Company, Inc., 419 U.S.

186, 200, 95 S. Ct. 392, 401 (1974).

For the foregoing reasons, the court concludes that

Congress, in enacting the Amendments, did intend

to retain EPA’s duty to promulgate FIP’s in cases

such as the one at bar. EPA’s motion to vacate the

settlement agreement and dismiss the complaint is

therefore denied.’

IT IS SO ORDERED.

Dated 11 27/91.

s Edward J. Garcia

EDWARD J. GARCIA

Judge

United States District Court

3 The court also notes that the “established rule” is that a

change in the law does not render an agreement void. Anita

Foundations v. ILGWU National Retirement Fund, 902 F.2d

185, 189 (2nd Cir. 1990). However, the parties did not ad-

dress this problem, and Anita Foundations is sufficiently

factually dissimilar from the case at bar that the court does

not rely on this general principle, which may well be inapposite

here, in reaching its conclusion.

Ta

APPENDIX C

STATUTORY PROVISIONS INVOLVED

Section 101 of the Clean Air Act. as amended, 42

U.S.C. 7401, provides:

(a) Congressional findings

The Congress finds—

(1) that the predominant part of the Na-

tion’s population is located in its rapidly

expanding metropolitan and other urban

areas, which generally cross the boundary

lines of local jurisdictions and often extend

into two or more States:

(2) that the growth in the amount and

complexity of air pollution brought about

by urbanization, industrial development, and

the increasing use of motor vehicles: has re-

sulted in mounting dangers to the public

health and welfare, including injury to agri-

cultural crops and livestock, damage to and

the deterioration of property, and hazards to

air and ground transportation;

(3) that air pollution prevention (that is,

the reduction or elimination, through any

measures, of the amount of pollutants pro-

duced or created at the source) and air pol-

lution control at its source is the primary

responsibility of States and local govern-

ments; and

(4) that Federal financial assistance and

leadership is essential for the development of

cooperative Federal, State, regional, and

Sa

lecal programs to prevent and control air

pollution.

(b) Declaration of purpose

The purposes of this subchapter are—

(1) to protect and enhance the quality of

the Nation’s air resources so as to, promote

the public health and welfare and the pro-

ductive capacity of its population;

(2) to initiate and accelerate a national

research and development program to achieve

the prevention and control of air pollution;

(3) to provide technical and financial as-

sistance to State and local governments in

connection with the development and execu-

tion of their air pollution prevention and

control programs; and

(4) to encourage and assist the develop-

ment and operation of regional air pollution

prevention and control programs.

(c) Pollution prevention

A primary goal of this chapter is to encourage

or otherwise promote reasonable Federal, State,

and local governmental actions, consistent with

the provisions of this chapter, for pollution pre-

vention.

9a

Section 110(c) of the Clean Air Act, as amended,

42 U.S.C. 110(¢), provides:

(c) Preparation and publication by Administra-

tor of proposed regulations setting forth im-

plementation plan; parking surcharge; plan

implementation

(1) The Administrator shall promulgate a Fed-

eral implementation plan at any time within 2

years after the Administrator—

(A) finds that a State has failed to make

a required submission or finds that the plan

or plan revision submitted by the State does

not satisfy the minimum criteria established

under section 7410(k)(1)(A) of this title,

or

(B) disapproves a State implementation

plan submission in whole or in part,

unless the State corrects the deficiency, and the

Administrator approves the plan or plan revi-

sion, before the Administrator promulgates such

Federal implementation plan.

Section 193 of the Clean Air Act, 42 U.S.C. 7515,

provides:

Fach regulation, standard, rule, notice, order

and guidance promulgated or issued by the Ad-

ministrator under this chapter, as in effect before

November 15, 1990 shall remain in effect accord-

ing to its terms, except to the extent otherwise

provided under this chapter, inconsistent with

any provision of this chapter, or revised by the

Administrator. No control requirement in effect,

or required to be adopted by an order, settlement

10a

agreement, or plan in effect before November 15,

1990 in any area which is a nonattainment area

for any air pollutant may be modified after No-

vember 15, 1990 in any manner unless the modi-

fication insures equivalent or greater emission

reductions of such air pollutant.

wv U. &. GOVERNMENT PRINTING OFFicE, 1992 342479 6007s

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