Memorandum — Train v. Natural Resources Defense Council, Inc.

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-1742

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, AND UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY, PETITIONERS

V.

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

REPLY MEMORANDUM FOR PETITIONERS

1. Respondents’ attack on EPA’s interpretation of the

Clean Air Act — permitting treatment of variances from

state requirements as revisions of state implementation

plans if they will not interfere with timely attainment of

national air quality standards — rests upon a confusing

characterization of the actions of EPA and the states

concerning variances and compliance schedules. The Act

provides that EPA shall approve a state implementation

plan if it includes, inter alia, schedules and timetables for

compliance with emission limitations contained in the plan.

42 U.S.C. 1857c-5(a)(2)(B). Given the substantial and

often unprecedented obligations imposed by the Act and

EPA’s implementing regulations, many states were un-

able, during the nine-month period available for adoption

of state plans, to develop fully the compliance schedules

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4 oo he

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SENN ONE RRO L A

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that would be needed to implement those plans. As a re-

sult, during the period following adoption of state plans

and their approval by EPA, many states have developed

compliance schedules — either individually negotiated or

covering categories of sources. Where state emissions

limitations or other requirements are already in effect, such

schedules typically must be approved as variances under

State law.

The primary question presented in this case is whether

EPA may approve such variances and compliance sched-

ules as “revisions” Of the already-approved state plan in

accordance with Section 110(a)(3) of the Act, or whether

it must treat them as “postponements” subject to Section

110(f). Had the states been able to complete the develop-

ment of compliance schedules within the nine-month period,

such schedules, even if involving variances from state law

requirements, would, of course, have been subject to ap-

proval as elemerits of the plan itself under Section 110

(a)(2), rather than as postponements.

Since most of the variances in question involve initial

approval of compliance schedules, it is inaccurate to sug-

gest that EPA seeks authority here only to treat as “re-

visions” extensions of previously-approved compliance

schedules beyond expiration dates previously agreed to or

otherwise established (Resp. Br. 48-49).!

'Nor would a _ post-attainment date variance necessarily

involve “an attempt to extend a compliance schedule beyond its .

‘ original expiration date” (Resp. Br. 49). As the First, Second and

Eighth Circuits have recognized, some authority to approve variances

in the post-attainment period without resort to Section 110(f) should

be recognized to accommodate such matters as “mechanical break -

downs and acts of God.” Natural Resources Defense Council, Inc. v.

Environmental Protection Agency, 478 F.2d 875, 886 (C.A. 1);

Natural Resources Defense Council, Inc. v. Environmental Protec-

tion Agency, 483 F.2d 690, 693-694 (C.A. 8); Natural Resources

Defense Council, Inc. v. Environmental Protectior. Agency, 494

F.2d 519, 523 (C.A. 2).

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Respondents suggest that EPA could deal with com-

pliance schedules submitted after EPA’s approval of state

plans “with a stroke of the pen,” by disapproving all such

state-submitted schedules, most of which EPA has now ap-

proved as revisions, and by promulgating “a generic regu-

lation converting en mass the variance-compliance sched-

ules it has already approved into federal compliance

schedules” (Resp. Br. 49). Respondents presumably refer

to EPA’s authority to promulgate state implementation

plans or portions thereof pursuant to Section 110(c) of

the Act. 42 U.S.C. 1857c-5S(c).

EPA’s authority under Section 110(c), however, would

appear to be no greater than the authority of the states

themselves under Section 110(a), concerning the adoption

of plans and revisions thereof. If, as respondents now con-

tend, compliance schedules may only be treated as post-

ponements under Section 110(f), it is doubtful whether

EPA could treat them as federal revisions under Section

110(c). In any event, suck an approach would be funda-

mentally inconsistent with the policies of state responsi-

bility and federal-state cooperation that underlie the Act.

42 U.S.C. 1857(a)(3).

2. Respondents assert that EPA’s interpretation of the

Act is inconsistent with EPA's criticism, in oiher con-

texts, of attempts to relate emissions from particular

sources to air quality measurements (Resp. Br. 31-32).

The quoted comment, however, was directed to the sub-

stantially different problem of determining how‘to regu-

late future sources of pollution, particularly in open West-

ern eile pursuant to a separate program under the Act

to prevent degradation of air quality in areas already

meeting national standards.

Sa Rete mre

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As a matter of technology, because of the possibility of

calibration and the availability of baseline data, one may,

however, accurately determine the effect of an existing

source of pollution in an area with known air quality.

Indeed, that type of analysis lay at the heart of the states’

development, and EPA’sapproval, of implementation plans.

Cf. 40 C.F.R. 51.12, et seg., Congress recognized EPA’s

ability to make such assessments in Section 4 of the

Energy Supply and Environmental Coordination Act of

1974, 88 Stat. 256 (relied upon by respondents (Resp. Br.

27, n. 37) ), which amended Section 110(a)(3) of the Clean

Air Act so as to require EPA to study all state plans and

determine whether their emission standards relating to

fuel-burning stationary sources or suppliers of fuel to

such sources “can be revised * * * without interfering

with the attainment and maintenance of any national

ambient air quality standard * * *.”

3. We have contended that EPA’s original interpreta-

tion of the Act was intended to encourage states to make

their limitations requirements effective earlier than mid-

1975 or to adopt more rigorous standards than needed to

assure timely attainment and maintenance of national stan-

dards (Pet. Br. 11, 29-30, 41). Respondents suggest that

this premise was.unsound because only three states estab-

lished early dates for attainment of national standards

(Resp. Br. 46).

'n the first place, the reasonableness of EPA’s inter-

pretation would not be refuted even if it had been less ef-

fective in achieving this result than had been anticipated.

In any event, respondents’ reference to three states fails

to distinguish between the deadline adopted by a state for

attainment of national-standards, and the deadline estab-

lished for compliance with its emission limitations. It is

true that most states where air quality exceeded national

standards in 1972 established their attainment dates at the

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end of the allowable three-year period.” In most of those

same states, however, emissions limitations were made ef-

fective immediately or at dates long before the attainment

date. These limitations are the crucial means to achieve

timely attainment of national standards, and EPA’s pur-

pose of encouraging such immediately effective require-

ments, subject to necessary variances, was well-served.

4. Respondents repeatedly assert that EPA is urging

upon this Court an interpretation of the “Act that it has

abandoned in its own regulations (e.g., Resp. Br. 16-17,

30-33). In fact, EPA has never receded from its original

position that Section 110(f) is not the exclusive procedure

for approval of variances from state law requirements and

that such variances may be treated as revisions under

Section 110(a)(3).3 All that has happened is that EPA,

as a matter of policy, chose not to persist in applying

its original interpretation to the post-attainment period

after EPA’s position concerning that period had been re-

jected by four courts of appeals. As indicated in our

opening brief, however, we still believe that EPA’s original

interpretation was reasonable and should have been sus-

tained. While that interpretation is logically applicable

to the post-attainment period as well as the pre-attainment

period, only the latter is covered by the question pre-

sented in the petition. If this Court reverses the court

of appeals’ resolution of that question, the effect of

2In view of EPA’s unchallenged approvals of those attainment

dates it must be assumed that earlier attainment dates: were not

“practicable” in those states. 42 U.S.C. 1857c-5(a)(2)(A)(i).

‘In revising its regulations, EPA reiterated its view “that com-

pliance date deferrals which do not go beyond applicable attainment

dates for primary or secondary standards should be dealt with as a

plan revision * * *.” 39 Fed. Reg. 34572.

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the decision on EPA’s authority in the post-attamment

period will depend upon whether the Court follows the

approach of the First Circuit, the Ninth Circuit, or EPA’s

original interpretation of its “revision” authority. While

EPA favors the First Circuit’s approach over that of the

Fifth Circuit in the instant case, it would also favor its

original approach or that of the Ninth Circuit over the

decisions of either the First Circuit or the Fifth

Circuit.

5. Respondents suggest that reversal of the court of ap-

peals’ decision will result in substantial adverse effects

on the health of persons because some sources of air pol-

lution will. consequently be permitted to operate, rather

than be required to shut down. This contention ignores the

fact that the interpretation of the Clean Air Att we urge

would permit a state to revise its implementation plan by

granting a variance, subject to the approval of EPA, only

if the variance would not interfere with the state’s

attainment or maintenance of primary air quality standards.

By definition, those standards have been set by EPA at

levels that, “allowing an adequate margin of safety, are

requisite to protect the public health.” 42 U.S.C. 1857

- c-4(b)(1). The Act provides a judicial remedy for those

who think the standards adopted inadequate (42 U.S.C.

1857h-5(b)(1)),4 and the present case, therefore, should

Agency, 464 F.2d 846 (C.A.D.C.). EPA may also be asked to exercise

its authority to revise previously promulgated national standards.

4See e.g,, Kennecott Copper Corp. v. Environmental Protection

Cf. 42 of 1857c-S.

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be decided on the presumption that the states and EPA will

adequately protect the public health by insisting that vari-

ances do not interfere with attainment or maintenance of

those standards.

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

RosBerT H. Bork,

Solicitor General.

JANUARY 1975.

DOJ-197501

Roser