# Brief for the United States — Train v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0401%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1975 - **Citation:** 421 U.S. 60 ## Text INDEX Opiniou below___..----- 2 2 ee Jurisdiction ...- 2-2-2 ae. ive geese eee Question presented __ hemeeaneae Statute involved... - 2-2 ee Argument: Variances from state implementation plans that do not affect attainment of national standards within the statutory deadlines or their maintenance thereafter need not be treated by EPA as ‘“postponements” of the requirements of state plans_____- a A. EPA’s treatment of variances not affecting attainment of air quality standards within the prescribed deadline as not being governed exclusively by Section 110(f) is consistent with the language, struc- ture and legislative history of the Clean Air Amendments... _- -- -- -- B. EPA’s construction of the Act, on which the states and persons sub- ject to the Act have relied, properly effectuates the legislative purpose of the Amendments- -___-_-----_-- (I) 564-177 - T4- 1 Page rnwnNe = e ~ II Argument —Continued C. The contention that Section 110(f) provides the exclusive means for * obtaining variances prior to the deadiine for attaining national standards has been rejected by 3, Congress and all other courts of Page appeals____-.------------------- 32 D. The decision of the court of appeals rests upon an erroneous analysis of the language and purpose of the Clean Air Act___- -.---.---- -- -- 38 I. In rejecting EPA’s construction of Section 110, the court of appeals’ holding would have adverse conse- quences not intended by Congress. - 41 Conclusion_-__----------- seed are ane ee 46 CITATIONS Cases: _ Getty Oil Co. v. Ruckelshaus, 342 TF. Supp. 1006; remanded on other grounds, 467 I. 2d 349, certiorari denied, 409 U.S. 1125. __ _- 36 Griggs v. Duke Power Co., 401 U.S. 424_____- 32 Natural Resources Defense Council, Inc. v. En- vironmental Protection Agency, 478 ¥. 2d 875_ 13, 33, 34, 35, 36 Natural Resources Defense Council, Inc. v. En- vironmental Protection Agency,483 F.2d 690_ 13, 36 Natural Resources Defense Counci!, Inc. v.-En- vironmental Protection Agency, 494 F.2d 519_ 13, 36 Natural Resources Defense Council, Inc. v. En- vironmental Protection Agency. No. 72-2145, (C. A. 9), decided November 11, 1974_ __ _- 13, 34-35, 37 Ill Cases—Continued Trafficante v. Metropolitan Life Ins. Co., 409 page US. 205_.-.------- ee 7 32 Udall v. Tallman, 380 U.S. 122-22. _- : 32 United States v. Bishop bee Co., | 423 I’. 2d 469, certiorari denied, 398 US 904- S Statutes and regulations: _ 69 Stat. 322-323....- 6 7 74 Stat. 162... 22 2 8 7 | 77 Stat. 392-401__ __ ees fee oe ae 7 | 79 Stat. 992-996. 7 — 80 Stat. 954-9552 7 D S1 Stat. 485-507... =. a S Clean Air Amendments of 1970, 84 Stat. 1676, 42 U.S.C. 1857, et seg. 22 29 Section 101(a)(3), 42 U.S.C. 1857(a)(3) - S Section 109(a)(1), 42 U.S.C. 1857e-4 (a)(De . 29 Section 109(b), 42 u SC. 1857¢- 4(b) aS Section 110, 42 U.S.C. 1857¢-5__ . 20,35 Section 110(a)(1), 42 U.S.C. 1857¢-5 (a) oe . 3.10 Section 110(a)(2}, 42 U.S.C. 1857-5 (a)(2y o- 2-2-2 2-2. 10, 18, 19, 21, 22, 32 Section }110(a)(2)(A), 42 U.S.C. 1857¢e-5 (2)(2)(A)_ - 2. 83,10, 18,19 Section 110(2)(2) \(B); 42 U.S.C. 1857¢e-5 (a)(2)(B). ee 10 Section 110(a)(2)(B)-(H), 42 U.S.C. 1857¢—5(a)(2)(B)-(H)_ 2-5 6 8, 19-29 Section 110(a)(3), 42 U.S.C. 1857¢—5 (a)(3).-- 22... 5 10, #2, 21, 24, 26, 27, 28, 34, 35, 38, 42, 44, 45 Section 110(a)(4), 42 U.S.C. 1857¢e—5 (a)(4)-. 2-2 ee ee ee. 27 % IV Sratutesxand Regulations—Continued — ‘Section L10(e), 42 USC, ISSTC-5(C) -_ 10,19 Section 110(e), 42 U.S.C. 1IS57e-5(e)_ 28 -- 10, 19, 20; 22, 28, 40 Section 110(f), 42 U.S.C. 1S57¢e-5(f) _ _ _ _ 4, 5, 10, 12, 13, 15, 16, 17, 19, 21-22, 26, 2s, 29, 30, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44 , Section 110(f)(1), 42 U.S.C. e- 5(f)(1)_.-- ii,22 Section 110(f)(2), 42 US.C., P857e-5 (f)(2)__-- 2 8 cedure atwe Dds 22 Section 116, 42 U.S .C. 1857d- 1, 30 Section 118, 42 U.S.C. 1S57f. 62 2 25 Section 303, 42 U.S.C. 1857h-1____ = 20) Section 807(b)), 42 U.S.C. 1857h-5 (b)(1)- _ 3, 21 Reorganiz: ation Pl an 1 No. 3 of 1970, ‘Sd . Stat. 2086 (35 Fed. Reg. 15623)___ ___- 9 5 U.S.C. 554. 2 2 ek ee ke 42 Ga. Code Ann. 88-912. .-__ _-___.________.. 344 40 C.F.R. 50.1(8)_-- 0 8 8 8 8 ee 2 40 CLLR. Part 51-222 2 2 8, 27 40 C.P.R. 51.6... 2-22. 2-2-2 ee ee ee 12 40 CLEPLR. S1.1M(g) 0 2 eee eee OT 40 C.V.R. 51.15(d)__-- 2. 2 2 2 ee 14 40°CLF OR. OL 320). oe oe nee een eit s. 12,14, 40 CLPLR. 51.83- 2-2-2 2 2 8 2 28, 42 .40 C.PLR. 52.26.22 2-2 2 2 2 2 -. 14, 36 40 C.F.LR. 52.570(b)__- 2. 2 2 2 8 ee 3 40 C.F.R. 52.572-52.574__. 22 22 oe le 3 40 C.F.R. 52.1131. _ - pee ee eee ee ee ee eee 36 40 C.FLR. 52.2079... 22 ee 36 Miscellaneous: Comunent, Variance Procedures under the Clean Airy Act: The Need for Flexibility, 15 Wim. & M.L. Rev. 324 (1973) ____ 35, 41, 43-44 116 Cong. Ree. 42584-42385___- 26 116 Cong. Ree. 32914-32916. __ MiscelHanvous—Continued 36 Fed. Reg.: Daze 6680. ee eee ae OOS]. — : : _ 31 OOS6 __- 30) 15486. Do 27 22400 - - oo ooo }2 22405 -_ - eee ewe ee aees. _. 12,30 37 led, Reg.: 10859 wie eee wine a een es Lo. 3 238387. - = 45 38 Fed. Reg.: 1SS7S8S-ISSSO__ =|. eee eee 36 22025-22030, 27 286-2 7287 - _...-...-... 28,42 * 27819, 30186_ _._.______ we... 42 34020... 2 ee - 43 39 Fed. Reg.: 16348 __ Sees ee eee ee oe oe eee ee 45 16348-16349. -2 45 308384. 000¢«2~«CF 45 34533-34535 __ _- go ee ee eee 14,36, 45 Hearings, on Implement: tion of the Clean Air Act Amendments of 1970—Part I (Title ’ I), before’ the Subcommittee on Air and Water Pollution of the Senate Committee on Public Works, 92d Cong., 2d Sess ___ 31, 32, 37 I1.R. 17255, 91st Cong., 2d Sess. 23 II. Rep. No. 728, 90th Cong., Ist Sess... .._... 7-8 H. Rep. No. 91-1146, 91st Cong., 2d Sess. ___- 23 If. Conf. Rep. No. 91-1783, 91st Cong., 2d Sess. _ _- 9, 25 Luneburg, Feder: al-State- Inter: action “uhder the Clean Air Amendments of 1970, 14 B.C. Ind. & Com. L. Rev. 637 (1973)___ __ __ 28, 44 S. 4358, 91st Cong., 2d Sess._ __ | - . 23, 24,25 S. Rep. No. 91-1196, 91st Cong., 2d Sess. - 23, 25, 35 Gn the Supreme Court of the Bnited States OcToBER TERM, 1974 _ No. 73-1742 . Russet EF. Traixn, AbpMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, PETI- TIONERS v. NatuRAL RESOURCES DEFENSE CoUNCIL, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COERT OF APPEALS FOR VHE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES OPINION BELOW The opinion of the court of appeals (Pet. App. A, la—52a) is reported at 489 F. 2d 390. JURISDICTION The judgment of the court of appeals was entered on February 8, 1974 (Pet. App. B, 53a-54a). The petition for a writ of certiorari was filed on May 20, 1974, and was granted on October 15, 1974. The juris- diction of this Court rests upon 28 U.S.C. 1254(1). (1) 2 QUESTION PRESENTED Whether, under the Clean Air Act, as amended, the Environmental Protection Agency nist disapprove provisions of a state implementation plan that author- ize the state to grant variances from the state plan during the period prior to the Nov BEING GOVERNED EXCLUSIVELY BY SECTION 110(F) Is CON- SISTENT WITH THE LANGUAGE, STRUCTURE AND LEGISLATIVE LLs- TORY OF TILE CLEAN AIR AMENDMENTS Under the statutory scheme created by the Clean Air Amendments, within nine months after EPA's promulgation of primary and secondary national am- bient air quality standards (/.c., by January 31, 1972), each state, after holding public hearings, was required to submit to EPA a plan providing for the jmplemen- tation, maintenance, and enforcement of such stand- ards in the state. EPA was required by Section 110 (a)(2) to approve each state plan within four months of the deadline for submission if it had been adopted after public hearings and if it satisfied eight general conditions. The first condition was that the plan pro- vide for the attainment of the national primary am- bient air quality standards it was implementing ‘as expeditiously as practicable but * * * in no ease later than three years from the date of approval of such plan,” and for the attainment of secondary standards within “a reasonable.time.” 42 U.S.C. 1857¢-5(a) (2) (A) (i) and (ii). Other conditions require that the plan include specified categories of control measures (6.4, emissions limitations, compliance schedules) and pro- cedures (e.y., provisions for intergovernnental co- operation; reports on emissions; revisions to take ac- 19 count of changes in the national standards). 42 U.S.C. 1857-5 (a) (2)(1B)-( HY." Section 110(a) (2) prov ides that EPA shall not ayprnse a plan unless: “(A)(i) in the case of a plan implementing a national pri- nary ambient air quality. standard, it provides for the attain- ment of such primary standard as expeditiously as practicable but (subject to subsection Ce) of thi hd al‘ ponements that would affect a state's attainment of national standards within the prescribed deadlines ; lesser variances, Hike other revisions of plans, could be approved by EPA) pursuant to Section 110(a) (3). B. EPA'S CONSTRUCTION OF THE ACT. ON WHICHL THE STATES AND PERSONS SUBJECT TO THE ACT HAVE RELIED, PROPERLY BEFECT- UATES THE LEGISLATIVE PURPOSE OF THE AMENDMENTS, The Clean Air Amendments Imposed upon newly- created EPA an ambitious legislative goal, a variety of substantial legal and technical obligations, and an unprecedented series of deadlines to meet. in earrving out its statutory mandate under this comprehensive and complex legislation. While it was completing the first phase—promulgation of national air quality standards on April 30. 197I—EPA was also Working towards the next stage—submission of state Imple- mentation plans. To assist the states in. deter mining what it > would regard as_ satisfving the requirements of Section 110(a) (2). in the spirit of cooperative federalism on whieh the Act is still based (42 U.S.C. 1857(a) (3) and (4)), EPA on April % 1974, published proposed enidelines for the prepara- tion, adoption and submission of such plans. 36 Fed. Rex 6680. After receiving connments by omumerous orgenizations, including respondent NRDC,) EPA issued final euidelines on August 14, 1971. 36) Fed. Reg. W485; 40 CPLR. Part 51. Qne of the many questions of statutory Interpreta- tion to be resolved during the period in which the Wiuplenentation plans had to be prepared, subinitted and approved concerned the scope and relationship of a) 28 EPA‘’s authority to approve “revisions * of plans under Section 110(€a) (3) and “post ponements” ander Section 110(f), particularly as they related to compli- ance With control measures made effective prior to the deadline for attainment of national standards. In hight of the legislative Instory of Section LLOCE), which indicated that it was aimed primarily at. re- quests for relief arising after a plan was subniitted that world affect attaimment of the national standards vithin the three-vear deadlines’ EPA conciuded that Section LOC’) had net been intended by Congress as the exclusive means of relief from requirements of plans when the compliance problems involved had not been accommodated by an extension of the deadline pursuant to Section 110¢e) and would not prejudice the state’s timely attainment of the standards. 'This conclusion is supported by several pragmatic consider- ations. First, since Section 110(f) requires that) fermal hearings be held by EPA (ef. o8 Fed. Reg. 22025- 22030, 27286-27287; 40 CLPAR. 51.55), in addition to any hearings held by the state, an overly-broad appli- cation of the postponement procedure could result im an enormous burden upon EPA, with consequent de- lays and diversion of resources needed for other vital “In the original Senate bill the postponement provision esplicithy applied only to the statutory deadline for attainment of national standards (see p. 2b svpror), and the comments in the conference report and Senator Muskie’s explanation of the conference bill do not snegest a substantially broader focus (see pp. POUE. spa), See Laneburg, Fedoral-Ntaty Lite paetion wader the Chen Nit inindine nts op L960. VA B.C. Ind. & Com. L. Rev. 657, 646 (1975). . 29 aspects of EPA‘s work under the Act. Thsofar as requests for relief were subject to the “revision” re- quirements, however, the burde:n of conducting pub- he hearings was diffused among the affected states. In addition, if a state were authorized to erant variances from the requirements of its plan prior te the statutory deadline only by resort to the post pore- nent procedures of Section 110(f), it mieht well be Inclined to deter the effective dates of its control yeos- ures taitil the latest feasible date consistent with ot- tainment of the standards within the statutory dead- line, rather than to make some or all contro! measures effective soon in the expectation that needed variances could be granted during the period prior to the dead- line, Such a decision by a state to defer deadlines mught refleet apprehension that the postponement pro- cedures would be too slow and stringent. to provide adequate relief during the preattainment period, as wellas the belief that a postponement could be granted only for one year™ and so could not adequately pro- tect a source subject to a requirement made effective “While the issue is not presented in this case. a question CXists as to whether Section 110( f) permits only one post pone- ment. since the Act does not explicitly authorize or prohibit suceessive postponements. The provision of the Senate bill on Which Section 110(f) was largely based did explicitly permit multiple postponements of the deadline for attainment of a standard, but the omission of this seemingly signifiernt. lan- fudge was not commented on in the conference report: o&\the e\planatory staterent submitted hy Senator Muskie (see pp. 20 7. Singh amy, 30 at a date earlier than one year before the statutory deadline.” Spuilariy, if Section 110(f) were the only means for obtaining variances from any requirement of a > ¥ . state plan, the states might be deterred from adoprt- wg contro] strategies more stringent than those needed merely to attain and maintain national standards, which Section 116 of the Act specifically permits them to do. 42 U.S.C. 1857d-1. Accordingly, in light of the statutory mandate thac the national standards should be attained “as expedi- tiously as practicable’’ within the three-year deadline, I}PA adopted a construction of the Amendments that reasonably led towards that goal. Thus, EPA’s pro- posed and final guidelines provided that a state’s de- termination to defer the applicability of any portion of its control strategy in its plan to a source would be subject to the requirements for a postponement if the “deferral will prevent attainment or maintenance of a national standard’? within the prescribed time (36 Fed. Reg. 6086, 22405; 40 CER. 51,32(f)), although “? For example, Georgia and other states (see, e.g., Pet. 6) made many requirements of their plans effective immediately in 1972, subject to relief under stringent variance procedures. This way most sources were subjected to controls long before the i975 deadline, even though, as was recognized at the outset, some might require variances for most or all of the three-year period. A one-year postponement would not always help such a source, even if available, as the source might then be in viola- tion for the balance of the three-year period, This problem would have been avoided if the state had deferred the effective date of all requirements under the plan until the attainment deadline (as Florida and others have done), thereby in effect hasing overall controls on the lowest common denominator. 31 such a determination would be treated as a “revi- sion” of the plan if it would not have that effect. See 36 Fed. Reg. 6681, 22400; 40 C.F.R. 51.6. Neither respondent NRDC nor anyone else objected to this provision. Indeed, at subsequent congressional hearings concerning EPA’s implementation of the Clean Air Amendments, held before EPA had ap- proved the state plans, NRDC stated that Section 110(f) applied to “any variance which would prevent attainment * * * of a national standard * * *” and that the EPA guideline “correctly provides that variances Which do not threaten attainment of a national stand- ard are to be considered revisions of the plan * * *,” Hearings, on Implementation of the Clean Air Act Amendments of 1970—Part J (Title I), before the Subcommittee on Air and Water Pollution of the “Senate Committee on Public Works, 92d Cong., 2d Sess., ser. no. 92-H31, p. 45 and u.51 (statement of Richard E. Ayres). On the basis of EPA's then-unchallenged guidelines, Georgia and other states submitted implementation plans containing early effective dates and limited pro- vision for variances. Such plans were approved by EPA in this regard—in many instances without chal- lenge—and commitments and investments haye heen made by various sourees in such States, and the states themselves, in reliance upon EPA’s interpretation of the Act as permitting variances during the pre-attain- ment period subject to the procedures for “revisions” of plans. SIE RE Aye ae ot Te or ree 32 Where, as here, EPA’s interpretation of the **un- tried and new” provisions of the Amendments it was responsible for implementing **is not unreasonable,” the language of the statute bears I PA‘s construction, . that interpretation has “been a matter of public ree- Nord;”” and there has been action by others, ‘tat very ereat expense, in reliance Upon the * * * interpreta- tion,” it should be shown ‘great on rence’? and sus- tained. Udall v. Tallman, 880 U.S. . 16-18; see, Cy. Griggs Vv. Duke Power Co., 401 ss. 424, 433-4: Traflicaute V. Metropolitan Life Ins, Co., 409 US. 205, 210. . THE CONTENTION TIENT SECTION 110(F) PROVIDES THE PXCLUSIVE MEANS FOR OBTAINING VARIANCES TBIOR TO THE DEADLINE FOR ATTAINING NATIONAL STANDARDS HAS BEEN REJECTED vY CON- GRESS AND ALL OTHER COURTS OF APPEALS The reasonableness of EPA‘s interpretation of the Act concerning the treatment of variances, and the validity of EPA’s approval of the Georgia procedure in issue here, are both supported by the unsuc ‘cessful efforts of respondent NRDC to challenge them elsewhere. At congressional hearings in 1972 concerning EPA‘s implementation of the Clean Air Amendments, NRDC specifically singled out the Georgia variance statute involved here as being an “extreme” example of pro- visions ‘in state plans that NRDC believed to be inconsistent with the requirements of Section 110(a) (2). Hearings on Implementation, supra, at 45. Con- eress, however, took no action, either before or after EPA‘s approval of the Georgia plan, that would in 33 any way suggest that Georgia or EPA was not cor- rectly carrying out the intent of Congress. Moreover, after EPA had approved a number of. state plans containing provisions for variances that, consistent with EPA’s guidelines, need not in all cases satisfy the requirements of Section 110(f) for post- penements, respondent NRDC challenged EP A’s ap- provals of several such plans on various grounds. Ap- parently having changed its position (:ee p. 31, supra), NRDC contended that Section 110(f) ‘estab- lishes the exclusive variance procedure.” Natural Resources: Defense Council, Ine. v. Environmental Protection” Agency, 478 VF. 2d 875, 884 (CLA. 1) (OO NRDC-CA, 1”). However, four of the five courts of appeals that have considered that claim have: re- jected it. In NRDC-C.A. 1, involving challenges to EPA's approval of the Massachusetts and Rhode Island plans, the First Circuit concluded that “Congress [had not] intended altogether to preclude the Adminis- ‘ : PEP OQ Sage a trator [of KPA] from appreving plans containing ~ reasonable state deferral mechanisms during the pre- liminary [pre-attainment deadline] period.’ Id. at 887. The court stated (ibid.): A state plan may well establish emission lim- itations or other requirements during the pre- liminary period which one or more sourees simply cannot initially meet. A postponement under § 1857¢-5(f), besides being limited té only one year, would require meeting a stricter standard than is suggested by the ‘tas expedi- tiously as practicable’? language § 1857e-5(a) ee 34 (2)(A). We can see value in permitting a state to impose strict emission limitations now, sub- ject to individual exemptions if practicability warrants; otherwise it may be forced to adopt less stringent limitations in order to accommo- date those who, notwithstanding reasonable ef- forts, areas yet unable to comply. While not rejecting EPA’s contention that such power was conferred by the revision authority of Sec- tion 110(a)(3), the court viewed “it more as a neces- sary adjunct to the statutory scheme, which antici- pates greater flexibility during the pre-attainment period.”’ [bid. As to the period after the deadline for attainment of national standards, however, the court concluded that a variance would ordinarily have to satisfy the re- quirements of Section 110(f) for postponements, which the court regarded as “the exclusive mechanism for hardship relief after the mandatory attainment dates.” 478 BF. 2d at 886. Nevertheless, recognizing a need for ‘flexibility’ not afforded by Section 110(f) for such matters as “mechanical breakdowns and acts of God,” the coirt added that a state plan may provide “for minor state and local deferral procedures” during the post-attainment period, if limited to a few months and containing standards and controls to preclude abusc. Ibid. ~ 23 Since the Court granted certiorari in the present case, the Ninth Circuit has more broadly upheld EPA's interpretation of the Act, as reflected in the guidelines, that all variances need not satisfy the requirements of Section 110(f) for postpone- ments. .Vatural Lesources Defense Council, Ine. ve Envivon- / mental Protection Agency, No, 72-2145 (C.A. 9), decided Novem- ber 11, 1974. That court specifically rejected the distinction drawn by the First Circuit between the periods prior to and after 35 bf Regarding the First Cireuit’s construction of the Act asa reasonable, workable one, albeit less desirable the deadlines for attainment of national standards as having no foundation in the language of Section 110 or its history (see Comment, Variance Procedures under the Clean Air Act: The Need for F lewibility, 15 Wm. & ML. Rev, 324. 331 (1973) ). and concluded that the power of EPA to approve “minor” variances (i.c., those that will not interfere with attain- ment or maintenance of national standards), is a necessary ad- junct of the statutory scheme both before and after the attainment dates, without reliance upon the revision au- thority of Section 110(a) (3). Moreover, the First Circuit's contrary couclusion is not sup- ported by the legislative history on which it relied in stating (478 F. 2d at 885-886) ; It is plain from the legislative history that the ex- peditious imposition of “specific emission standards” and their “effective enforcement” were primary goals of the Clean Air Amendments. Report No. 91-1146, U.S. House of Representatives, 91st Cong. 2d Sess., pp. 1, 5 (1970) ** * The Congressional intent could too easily be frus- trated by the existence of open-ended exceptions. Sources of pollutants should either meet the standard of the law. or be closed down. Report No. 91-1196, U.S. Senate, 91st Cong. 2d Sess., p. 3 (1970). The House. report cited was commenting upon the House bill which, as noted (see p. 23, supra), did not contain explicit man- datory deadlines for attarmment of emission standards or ambient. air standards: nor did the House report indicate that “specific emission standards” could not be relaxed by joint federal-state action even where there would be no adverse affect pon attainment or maintenance of national ambient air standards, Similarly. the Senate report did not suggest that sources must close down if they cannot meet the emission stand- ards or other elements of a state’s control strategy. Rathey, the report's statement that the sources “either should meet the standard of the law or be closed down * * ** (S. Rep. No, 91-1196, supra, at 5) plainly has reference to the ambient air standards the report had just been discussing. 7/7. at 2-3, Nothing in the legislative history is inconsistent with the prop- osition that the variances from requirements of 2 state » IEE LEINSTER FE SI a peer Raa Pegi: Se | 36 than EPA’s original construction, EPA did not ask this Court to review the First Cireuit’s decision and instead changed its regulations concerning the plans involved to conform to that decision. See 38 Fed. Reg. ISS7TS-1SS880; 40 CLF.R. 52.1131, 52.2079. Later, EPA‘s general guidelines were themselves changed to reflect this interpretation, and EPA disapproved all state plans to the extent that they “permit the deferral of compliance with applicable plan requirements beyond the statutory attainment dates_* * *.”’ 39 Fed. Reg. 34535; 40 C.F.R. 52.26(a). The First: Circuit’s decision was followed by the Kighth Cireuit (Natural Resources Defense Council, Tne. v. Environmental Protection Agency, 483 F. 2d 690, 693-694 (C.A. 8) (Iowa plan)) and the Second Circuit (Natural Resources Defense Council, Tne. v. Environmental Protection Agency, 494 FF. 2d 519, 528 (C.A. 2) (New York plan)), neither decision resting upon any hew analysis, and the latter expressly re- jecting the reasoning of the court of appeals in this case (tbid.). plan are permissible, apart from Section 110(f), if attainment or maintenance of national ambient air standards would not be affected, Nor was: fie First. Circuit's conclusion supported hy its concern that to permit variances to be obtained other than as postponements under Section 110(f) would “invite protracted delay.” 478 F. 2d at 886, While a source might well seek to litigate whether a variance in its favor would prevent attainment or maintenance of a national standard, the source would remain subject to the applicable requirements until a variance or revision were approved by both the state and EDA. Cf. Getty Oi Co, Vv. Ruckelshaus, 342 F. Supp. 1006, 1017-1019 (D. Del. remanded on ie grounds, 467 F. 2d 349 (C.A. 3), certiorari denied, 409 U.S, 1125. 30 Most recently, EPA’s position that Section 110(f) is not the exclusive procedure governing variances, at least in the pre-attainment period, has been sustained by the Ninth Circuit, which, like the First Circuit, held that a sensible constvuction of the Act required that EPA be authorized, without using the procedures and standards of Section 110(f), to approve “minor” variances, 7.e., those not affecting attainment or main- tenance of national standards, Natural Resources De- fense Council, Ine. vy. Environmental Protection Agency, No. 72-2145 (C.A. 9), decided November 11, 1974, slip op. pp. 5-13 (Arizona plan). Moreover, the court held that this authority was not limited to the pre-attainment period (see p. 34, supra, n. 23)5' The court stated that if EPA lacked authority to approve such minor variances apart from Section 110(f), it would be ‘‘difficult to perceive any just basis fo) the Act’s exhortation to the states to promulgate imple- mentation plans even stricter than that required to attain national ambient air standards. See 42 U.S.C. § 1857d-1."" Slip Op. p. 9° Disagreeing with the de- cision of the court of appeals in the instant case, the Ninth Circuit could find no “congressional intent to establish section 110(f) as the exclusive mechanism by ** Indeed. the court stated that its interpretation of the Act precludes EPA's rejection of a state plan on the ground that it permits “the issuance of ‘minor’ Variances under a procedure other than that specified in section 110(f).” Slip Op. p. 13 (footnote omitted). °° NRDC has elsewhere acknowledged that under the Act “States are not only free but encouraged to set tighter standards and reach these standards at an carlier date than required by Fed- eral law.” Hearings on Implementation, supra, at 17. 38 which all changes of particular application may be ac- complished.” Id. at 12. D. THE DECISION OF THE COURT OF APPEALS RESTS UPON AN ERRONEOUS ANALYSIS OF THE LANGUAGE AND PURPOSE OF THE CLEAN AIR ACT. The court of appeals’ conclusion that Section 110(f) is the exclusive procedure governing variances stems, first, from a serious misrevding of the lan- guage of Section 110(f). Noting that Section 110(f) provides that a postponement may be granted with respect to the date that ‘‘any’’ souree must comply with ‘‘any’’ requirement of a state plan, the court er- roneously concluded that Section 110(f) is the exelu- sive procedure governing ‘‘all particular changes’”’ in the applicability of the requirements of a plan (Pet. App. 2la-22a; emphasis in original). However, espe- cially in light of other provisions of the Act, this lan- guage in Section 110(f) is more persuasively read as merely authorizing postponements as to “‘any”’’ re- quirement, but not mandating that all modifications of such requirements necessarily he treated as post- pegements subject to Section 110(f). ‘Second, in asserting that nothing in the Act sup- rts the construction of Section 110(f) as not ap- Py) & to a variance that does not threaten attain- ment of a national standard (Pet. App. 21a), the court gave no weight to the authority in the Act con- eerning revisions. The court erroneously disposed of the revision provision of Section 110(a)(3) with the ipse dicit that there was a ‘‘familiar and clear’’ dis- ee tinction between a revision, which ‘ is a change in a 39 generally applicable requirement,” and a postpone- ment or variance, which is ‘ta change in the applica- tion of a requirement to a particular party’? (¢bid.). In adopting this distinction, for which it eMed no au- thority, the court ignored the legislative history in- dicating that the use of the term **postponements”’ in Section 110(f) had reference primarily to dee for attaining national standards, and it gave no weight, let alone deference, to the interpretation of EPA, the ageney responsible for implementing the Act. The court’s other premise was “that the plan of the statute was to secure ambitious commitments at the planning stage, and then, by making it difficult to depart from those commitments, to assure that depar- tures would be made only in eases of real need” (Pet. App. 26a; see id. at 22a-23a). The court's conclusion, however, does. not follow from that premise. As sug- gested above (see pp. 29-30, 33-34, 37, su pra), one signi- ficant means of securing “ambitious commitments at the planning stage” was for states to make their plans more stringent than needed to attain national stand- ards or generally effective at an earlier date than re- quired for timely attainment of those standards, pro- viding for exceptions in cases of real hardship. Since an excepted source could not rely on the continuation of such an exception past the attainment deadline, it would be no better off than if the state had = de- ferred effective dates until the latest date, an ap- proach that might well have tended to produce less lines 40 ambitious overall commitments at the pre-attainment planning stage. Finally, the court of appeals took issue with the statement of the First Cireuit in NRDU-C.A. 1 that “provision for a three-year grace period, followed by the possibility of a further two-year extension [under Section 110(e)], indicates that Congress did not ex- pect immediate achievement of standards.’* 478 F. 2d at 887. The court below stated (Pet. App. 26a): This statement, however, contains a crucial ambiguity, and it supports the First Circuit’s holding only if that ambiguity is overlooked. It is of course true that the provision of a three- year grace period, and of the possibility, how- ever limited, of an extension, do mean that Congress didnot expect immediate achievement of ambient standards. But it does not follow that Congress did not contemplate that emis- ston standards would not have to be met “imme- diately’ as their scheduled dates—set by the implementation plan—arrived. While it may not follow merely frem these provi- sions that Congress did not contemplate that emission standards (or other aspects of a state’s control strategy) would not have to be met as their scheduled dates arrived, it also does not follow that Congress intended such dates to be as inflexible as sole reliance on Section 110(f) as the means of change would leave them, in cases where compliance presented severe in- terim problems and an ad hoe relaxation of the stand- ard would not interfere with the state’s attainment or maintenance of national standards. To the contrary, while the Act as a whole gives the state<.no diseretion concerning the national ambient standards to be promulgated by EPA, they were accorded substantial 41 latitude in determining the precise emission standards or other elements of the control strategy to be used in attaining and maintaining those standards, and the timing of-their implementation. In short, even if there is an ambiguity in the First Circuit’s statement concerning “standards,” it is not “crucial’’ because it is also clear that Congress did not expect immediate achievement of emission standards. Er. IN REJECTING EPA'S CONSTRUCTION OF SECTION 110, THE COURT OF APPEALS HOLDING WOULD HAVE ADVERSE CONSEQUENCES NOT INTENDED BY CONGRESS, The First Circuit’s decision that Section 110(f) is the exclusive procedure for variances in the post- attainment period has been criticized as providing “a compelling argument against. state adoption of regional emission limitations stricter than those re- quired for attainment and maintenance of national [ambient air] standards.” Comment, Variance Pro- ccduves under the Clean Air Acts The Need for Fler- ‘bility, 1 Wm. & M. TL. Rev. 324, 337 (1973). That criticism is equally true of the court of appeals’ decision in this case concerning the pre-attainment period. Moreover, the court's construction of Section 110, if it had been adopted by EPA at the outset, would also have tended to deter states from adopting deadlines for the requirements of their plans earlier than the mid-1975 attainment deadlines (see pp. 29-30, supra), Since states like Georgia, which chose to make Various requirements effective early, may have ob- tained the necessary support for such stringent meas- ures only because a limited variance procedure was avallable, it would seem unfair to those states, and to —_ 42 the thousands of sources operating pursuant to vari- ances approved by EPA as revisions of state plans pursuant to Section 110(a) (3), to hold that they have acted in vain because Section 110(f) governs exclu- sively. As one commentator has said, “it is difficult to lhiagine a more cumbersome and time-consuming Vi rlance mechanism than that under section 110(f) * - *"* Comment, sepra, 15 Win. & M. L. Rev. at 354. Wi ile such a difficult procedural hurdle may well be justified with respect to efforts to postpone require- ments of a state plan that will interfere with timely attainment or maintenance of the mandatory stand- ards, there is no reason to suppose that Congress would have intended such a mechanism to govern all munor variances, particularly in the pre-attainment period. Substantial delays would have been inevitable if EPA had been required itself to hold formal public hearings * and satisfy Section 110(f) as to all vari- ances, of which there have been 800 in Georgia alone. Although EPA has as yet processed only a few requests for postponements under Section 110(f), ex- perience thus far indicates that the disposition of cach such request will be time-consuming and will absorb substantial amounts of EP.A’s limited resources.’ °° PA's regulations provide that hearings pursuant to Sec- tion 110(f) shall comply with the procedural requirements of 5 U.S.C. 554 for adjudications. See 38 Fed. Reg. 22025-22030, 27286-27287 ; 40 C.F.R. 51.33. ** For example, a request submitted by the Governor of West Virginia on June 15. 1973 (38 Fed. Reg. 27319. 30136), is still pending. Having held formal public hearings on the request in January, February and October 1974, EPA is awaiting a recoin- 43 If the court of appeals’. decision were sustained, I;PA arguably would be required to hold formal pub- lic hearings as to many, if not all, of the 800 Georgia Variances already submitted to PA, even if they have already been the subject of public hearings held by the state. A similar result might also follow as to the balance of the 3000 variances submitted to EPA hv other states in the Fifth Circuit alone.” For many sources, particularly in the pre-attain- ment period, it may not he reasonably possible to comply with some requirement of a state plan -by its effective date, because, for example, more time is necded to devise or procure the necessary control mechanisms. Yet, because of the one-year limitation and the substantive standards of Section 110(f), Wholesale application of that provision to all requests for variances would have the result that many sources would be in violation and might face burdensome liti- gation, with the risk of being shut down, even though the variance sought would not interfere with attain- ment or maintenance of national standards. “Such a result appears unduly harsh, particularly in the ab- sence of an explici+ manifestation of congressional ‘Inendation by the administrative law judge. A request submitted by the Governor of Nevada on August 29, 1973 (38 Fed. Reg. 34020), Was not approved until July 10, 1974. *“We do not think it necessary to resolve here the conse- quences of aflirmance of the decision below for other plans not challenged in the Fifth Circuit (or elsewhere), or for the plans involved in the cases sustaining EPA‘s power to approve var- iances apart from Section 110(f). Those questions present po- tentially difficult legal and practicsi problems not before the Court in this case and not considered by the court below. SE TRAN ME NRT SEAN ORE RI . 44 intent on the question.” Comment, supra, 15 Win. & M. L. Rey. at 336. See, also Luneburg, F'ederal-State Interaction under the Clean Air Amendments of 1970, 14 B.C. Ind. & Comm. L. Rev: 637, 651, 653 (1973). Because it would thus undesirably restrict the flex- ibility of the states and EPA in assuring the adoption and enforcement of control strategies for attaining and maintaining the national ambient air standards, the holding below should not be sustained. We submit that EPA’s interpretation of the Clean Air Act as not requiring that all variances from requirements from state plans be subjected to the requirements of Sec- tion 110(f), and as permitting variances to be treated as revisions under Section 110(a) (3) if they will not interfere with timely attainment or maintenance of national standards, is not only consistent with the language, history and intent of the Act, but represents | sound policy in the effort to achieve all of the Act's purposes. Accordingly, the decisions of the First, See- ond, Eighth and Ninth Circuits should be upheld, insofar as those courts have construed the Act as giving EPA authority to approve variances without resorting to Section 110(f), although we believe that EPA reached that conclusion through a_ preferable route.” 29 Although these courts have stated that variances not subject to Section 110(f) must be approved by EPA, there is no ex- plicit statutory basis for that requirement other than the revi- sion authority of Section 110(a)(3), on which the courts did not rely. Moreover, under Section 110(a) (3), the states are obliged to provide an opportunity for a public hearing and EPA’s approval] is subject to judicial review (see p. 21, suprv). 45 | The holding below, moreover, would result in un- warranted constriction of state autonomy to deter- mine how the national standards should be attained and implemented within each state. In providing for national air quality standards, Congress plainly meant to establish national ends to be achieved. But it did not intend comparably to nationalize decision-making about the means for achieving those ends—decisions whose economic, social and political dimensions Are of particular concern to the states and localities most immediately affected by them. Finally, there is no evidence—and the court below did not suggest—that EPA’s treatment of variances has resulted in abuses. As noted, the state itself must first have provided an opportunity for a public hear- ing—as the Georgia law in issue here requires (see pp. 3-4, supra, n. 2). Then, EPA publishes notice of requests for variances and invites comments. N or does EPA grant rubber-stamp approval of such requests: there have been significant published denials,” And, although EPA has now approved thousands of vari- ances pursuant to Section 110(a) (3), not one such ‘ap- proval has been successfully challenged in court.”2 °° Indeed, ir. some states requests for revisions are submitted by the governor, as requests for postponements must be. Sec e.g., 39 Fed. Reg. 16348. ** See, ¢.7., 37 Fed. Reg. 23837; 39 Fed. Reg. 16348, 30834. ** The reasonableness of the use being made of variances by the states and EPA is indicated by the fact that a great many variances have been for periods shorter than the entire period prior to the attainment deadline and many have already ex- pired. £.g., 39 Fed. Reg. 16348-16349, 35335-35343, 46 CONCLUSION For the foregoing reasons, the judgment of the court below should be reversed. Respectfully submitted. Rosert H. Bork, Solicitor General. Watiace H. Jonnson, Assistant Attoyney General. GeraLp P. Norton, Assistant to the Solicitor General. ~ Epmunp B. Crark, Larry A. Bocas, Attorneys. NOVEMBER 1974, US GOVERNMENT PRINTING OFFICE 1974 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0401%3A08. Public record. Not legal advice.