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

(Slip Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be re

leased, as is being done in connection with this case, at the time

the opinion is issued. The syllabus constitutes no part of the opinion

of the Court but has been prepared by the Reporter of Decisions for

the convenience of the reader. See United States v. Detroit Lumber

Co., 200 U.S, 321, 337.

SUPREME COURT OF THE UNITED STATES

Svllabus

TRAIN, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY, et at. v. NATURAL

RESOURCES DEFENSE COUNCIL,

INC.. ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No, 73-1742.) Argued January 15, 1975—Decided April 16, 1975

Under the Clean Air Aet Amendments of 1970, which establish a

program for controlling air pollution. the Eivironmental Protec-

tion Ageney (EPA) is required to set “ambient air” quality stand-

ards which. in EPA’s judgment. are “requisite to protect the public

health.” § 109 (b)(1)) (‘primarv” standards), and “requisite to

protect the public welfare from any known or anticipated adverse

effeets associated with the presence of such air pollutant in the

ambient air.” § 109 (b) (2) (secondary” standards). Each State

after promulgation of these standards must submit an implement-

ing and maintenance plan, whieh must be approved by EPA. if,

inter alia, it meets eight general conditions set forth in § 110 (4) (2).

the principal ene of which is that the plan provide for the attain-

ment of the national primary ambient air quality standards in the

State “as expeditiously as practieable” but no later than three

vears from the date of the plan’s approval. § 110 (a)(2)(A). The

State’s plan must include emission limitations, schedules, com-

pliance timetables, and other measures insuring timely attainment

and subsequent maintenance of the national standards. In order

to develop the requisite plan within the statutory deadline. Georgia

elected to follow an EPA-endorsed approach providing, for immedi-

ately effective categorical emission limitations sccompanied, how-

ever, by a variance: procedure whereby particular sources could

obtain individually tailored relief from the general requirements.

Section 110 (a) (3) provides that EPA shall approve any “revision”

of an implementation plan that meets the §110 (a)(2) require-

I

II

TRAIN v. NATURAL RESOURCES DEF. COUNCIL

Syllabus

ments applicable to an original plan, and EPA, concluding that

that provision permits a State to grant individual variances meet-

ing $110 (a)(2) requiremeni: from generally applicable emission

standards, both before and after the attainment date, approved the

Georgia plan. Respondents initiated review proceedings in the

Court of Appeals, taking the position that variances applicable to

individual sources mav be approved only if they meet the much

more stringent procedural and substantive standards of § 110 (f),

which. upon application prior to the compliance date for a sta-

tienarv source or class of moving sources, permits “postponements”

of no more than one vear of any requirement of a plan, subject te

specified conditions. That court upheld respondents.’ contentions

and ordered EPA to disapprove Georgia’s variance provision.

Held: EPA’s construction of the Act permitting treatment of in-

dividual varianees from state requirements as “revisions,” under

$110 (2) (3). of state implementation plans if they will not inter-

fcre with timely attainment and subsequent maintenance of na-

tional air quality standards. rather than as “postponements” under

§ 110 (f), was sufficiently reasonable to preclude the Court of Ap-

peals from substituting its judgment for that of the EPA.

Pp. 13-37

(a) Section 110 (f) is a safety valve by which may be aecorded,

under certain carefully specified circumstances, exceptions to the

mandatory deadlines for meeting national standards, and, contrary

to respondents’ contention, does not constitute the sole mechanism

by which exceptions to a plan’s requirements may be obtained.

Pp. 16-22.

(b) This concept of §110(f)’s limited role is reinforzed by

comparison with § 110 (e). which permits a two-vear extension of

the thr-s-vear period referred to in §110(a)(2)(A) (Qi) on a

showing far less stringent than that required for a § 110 (f) one-

year postponement, which would be inexplicable were § 110 (f)

the sole mechanism for States to modify their initial formulations

of emission limitations. Py, 22-24.

(ec) Noting that § 110 (f) provides that a postponement may be

granted with respect to the date that “any stationary source” must

comply with “any requirement of an applicable state implementa-

tion plan,” the Court of Appeals reached an erroneous conclusion

that the §110(f) procedure was exclusive; the language of

that provision does not mandate that all modifieations of a plan’s

requirements necessarily be*treated as postponements, precluding

other forms of relief. Pp. 25-26.

TRAIN v. NATURAL RESOURCES DEF. COUNCIL om

Syllabus

o

(d) The Court of Appeals also erred in its conclusion that “

revision is a change in a generally applicable requirement.”’ whereas

a “postponement or variance” deals with particular parties, for

here the implementation plans being revised are quite detailed;

moreover, the court's analysis overlooks obvious distinctions be-

tween revisions and postponements in the statutory context.

Pp. 27-28.

(e) Section 110 (a)(3) revisions are granted by EPA only if

they comport with the §110 (a)(2)(A) requirement that the

national standards be attaimed as expeditiously as practicable and

thereafter maintained, so the “technology forcing” nature of the

Amendments is no reason for judging under § 110 (f) variances

which qualify for approval under § 110 (a)(3). Pp. 28-29.

-(f) Congress felt that EPA could effectively perform the meas-

urement and predictive functions necessary reliably to pass on

variances as revisions under § 110 (a) (3). Pp. 29-82.

(g) Respondents’ argument that beeause any variance would

delay attainment of national standards bevond what was previously

considered as the earliest practicable date, and that because the Act

requires attainment as soon as practicable, any variance must

therefore be treated as a postponement, is not supported by the

legislative history or otherwise. Pp, 32-35.

(h) Respondents’ contention, tased on § 110 (a)(2)(H), that

revision authority is limited to general changes initiated by EPA

in order. to “aecelerate abatement or attain it “In greater concert

with other national goals,” is specious. That provision, which does

no more. than impose a minimum requirement that state plans be

capable of such modifications as are necessary to meet the basic

goal of cleansing the ambient air to the extent necessary to pro-

tect public health, as expeditiously as possible within the three-

vear period, does not prevent the States from also permitting

ameliorative revisions not contrary to that goal. Pp. 35-36.

489 F. 2d 390, reversed and remanded.

Renxquist, J.. delivered the opinion of the Court. in’ which

Burcer, C. 3. and BRENNAN. STEWART, WHITE, MarsHaLi. and

Biuackuen, JJ. joined. Doveéras. J.. dissented. VowE tr, J.. took

no part in the consideration or decision of the czse.

NOTICE : This opinion is subject to formal revision before publication

in the preliminary print of the United States Reports. Keaders are re-

ones to notify the Reporter of Decisions, Supreme Court of the

‘nited States, Washington, D.C. 20543, of any typographical or other

formal errors, in order that corrections may be made before the pre-

liminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 73-1742

Russell E. Train, Administra- |

tor, United States Envi- |

|

ronmental Protection (On Writ of Certiorari to

Agency, et al., the United States Court

Petitioners, of Appeals for the Fifth

v. Circuit.

Natural Resources Detense

Council, Inc., et al.

{April 16, 1975]

Mr. Justice REHNqQuIsT delivered the opinion of th

Court.

We granted certiorari in this ease, —— U.S. —— (1974),

to review a judgment of the Court of Appeals for the

Fifth Circuit which required the petitioner, Administrator

of the Environmental Protection Agency, to disapprove

a portion of the implementation plan submitted to him

by the State of Georgia pursuant to the Clean Air Act

Amendments of 1970.’ The case presents an issue of

statutory construction which is illuminated by the anat-

omy of the statute itself, by its legislative history, and by

the history of congressional efforts to control air

pollution.

i :

Congress initially responded to the problem of air

pollution by offering encouragement and assistance to the

"Natural Resources Defense Council, Inc, v. Environmental Pro-

tection Agency. 489 F. 2d 390 (CA5 1974). We issued a stay of the

contested portion of the court's judgment on June 10, 1974, 417 U.S.

942,

,

Pa HES NL REY wiminwg

2 TRAIN v. NATURAL RESOURCES DEF. COUNCIL

States. In 1955 the Surgeon General was authorized jo

study the problem of air pollution, to support research,

training and demonstration projects, and to ;rovide tech-

nical assistance to state and local governments attempt-

ing to abate pollution. 69 Stat. 322-323. In 1960

Congress directed the Surgeon General to focus his atten-

tion on the health hazards resulting from motor vehicle

emissions. 74 Stat. 162. The Clean Air Act of 1963, 77

Stat. 392-401, authorized federal authorities to expand

their research efforts, to make grants to state air pollu-

tion control agencies, and also to intervene directly to

abate interstate pollution in limited circumstances.

Amendments in 1965, 79 Stat. 992-996, and in 1966, 80

Stat. 954-955. broadened federal authority to control

motor vehicle emissions and to make grants to state pollu-

tion control agencies.

The focus shifted somewhat in the Air Quality Act of

1967, 81 Stat. 485. It reiterated the premise of the earlier

Clean Air Act “that the prevention and control of -air

pollution at its source is the primary responsibility of

States and local governments.” Jbid. Its provisions.

however, increased the federal role in the prevention

of air pollution, by according federal authorities cer-

tain powers of supervision and enforcement. But the

States generally retained wide latitude to determine both

the air quality standards which they would meet and the

period of time in which they would do so.

The response of the States to these manifestations of

increasing congressional concern with air pollution was

disappointing. Even by 1970, state planning and imple-

mentation under the Air Quality Act of 1967 had made

little progress.. Congress reacted by taking a stick to the

States in the form of the Clean Air Amendments. of

1970, Pub. L. 91-604, 84 Stat. 1676, enacted on December

31 of that vear. These Amendments sharply increased

federal authority and responsibility in the continuing

nnn

s

TRAIN v. NATURAL RESOURCES DEF. COUNCIL — 3

effort to combat air pollution. Nonetheless. the Amend-

ments explicitly preserved the principle that. “Each State

shall have the primary responsibility for assuring air

quality within the entire geographic area comprising such

State....° $107 ¢a) of the Clean Air Act. as added. S4

Stat. 1678.42 U.S.C. § 1857¢-2 (a). The difference under

the Amendments was 4hat the States‘ were no longer

given any choice as to whether they would meet this re-

sponsibility. For the first time they were required to

attain air quality of specified standards. and to do so

within a specified period of time. |

The Amendments directed that within 30 days of their

enactment the Environmental Protection Ageney should

publish proposed regulations deseribing national quality

standards for the “ambient air.” which is the statuty’s

term for the outdoor air used by the general public.”

After allowing 90 days for comments on the proposed

standards, the Ageney was then obliged to promulgate

such standards. § 109¢a)(1) of the Clean Air Act. as

added, 84 Stat. 1679, 42 UL S.C. § I857e-46a)(1). The

standards were to be of two general types: “primary”

standards, which in the judgment of the Ageneyv were

“requisite to protect the publie health.” ¢ 109 (bic1>.

and “secondary” standards. those that in the judgment

of the Agency were @requisite to protect the public wel-

fare from any known or anticipated adverse effects associ-

ated with the presence of such air pollutant im the am-

bient air.” § 109 ¢b)¢2).

Within nine months after the Agenev’s premulgation

of primary and secondary air quality standards. each of

the 50 States was required to submit to the Agenev a plan

designed to implement and maintain such standards

within its boundaries. $110 (a)(1) of the Clean Air Act.

as added, 84 Stat. 1680, 42 U.S. C. § iSS7e-5 (a) 1). -

The Ageney was in turn required to approve each State's

ad

So

4. TRAIN v. NATURAL RESOURCES DEF. COUNCIL

plan within four months of the deadline for submission,

if it had been adopted after public hearings and if it sat-

isfied eight general conditions set forth in § 110 (a)(2).°

2 Section 110 (a)(2), 42 U. S. C. § 1857c-5 (a) (2) is as follows:

“The Administrator shall, within four months after the date

required for submission of a plan under paragraph (1), approve or

disapprove such plan or each portion theréof. The Administrator

thet —eppreve—sHeh—plan—oransportion_thereof, if he determines. __

that it was *adopted after reasonable notice and hearing and that—

“(A) (1) in the ease of a plan implementing a national primary

ambient air quality standard, it provides for the attainment of such

primary standard as expeditiously as practicable but (subject to

subsecfion, (e)) in no ease later than three years from the date

of approval of such plan (or any revision thereof to take account

of a revised primary standard); and (ii) in the case of a plan

implementing « national secondary ambient air quality standard,

it specifies a reasonable time at which such secondary standard will

be attained;

“(B) it includes emission limitations, schedules, and timetables for

compliance with such limitations, and such other measures as may

be necessary to insure attainment and maintenance of such primary

or secondary standard, including, but not limited to, land-use and

transportation control}

“(C) it ineludes provision for establishment and operation of

appropriate devices, methods, systems, and procedures necessary

to (i) monitor, compile, and analyze datayon ambient air quality

and, (ii) upon request, make such data available to the Administrator;

“(D) it ineludes a procedure, meeting the requirements of para-

graph (4). for review (prior to construction or modification) of

the location of new sources to which a standard of performance

will apply;

“(E) it contains adequate provisions for intergovernmental cooper-

ation, including measures necessary to insure that emissions of air

pollutants from sources jocated in any air quality control region

will not interfere with the attainment or maintenance Of such. nri-

mary or secondary standard in any portion‘of such region outside

of such State or in any other air quality control region:

“(F) it provides (i) necessary assurances that the State will have

adequate personnel, funding, and authority to carry out such imple-

mentation plan, (ii) requirements for installation of equipment by

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 5

Probably the principal of these conditions, and the heart

of the 1970 Amendments, is that the plan provide for

the attainment of the national primary ambient air

quality standards in the particular State ‘as expeditiously

as practicable but ... in no case later than three years

from the date of approval of such plan.” § 110 (a)

(2)(A). In providing for such attainment, a State’s

plan must include “emission limitations, schedules, and

uth cHeh laattatons— * it must

eal

fess 233 vs

scopumrcmeatiermees iiileeachiaais

OEE LIE CE IGN ET EME I EEE

Hert eeanna:

timetabtes-for-eompiareearithsHehinitat.

also contain such other measures as may be necelbary. to

insure both timely attainment and subsequent mainte-

nance of national ambient air standards. § 110

(a) (2)(B).

Althoush the Agency itself was newly organized, the

States looked to it for guidance in formulating the plans

they were required to submit. On April 7, 1971—scarcely

three months after the enactment of the Clean Air

Amendments—the Agency published proposed guidelines

for the preparation, adoption and submission of such

owners or operators of stationary sources to monitor emissions from

such sources, (1ii) for periodic reports on the nature and amounts

of such emissions; {iv} that such reports shall be correlated by

the State agency with any emission limitations or standards estab-

lished pursuant to this Act, which reports shall be available at

reasonable times for public inspection: and (v) for authority com-

parable to that in section 303, and adequate contingency plans to

implement such authority:

“(G) it provides, to the extent necessary and practicable, for

periodic inspection and testing of mctor vehicles to enforce com-

pliance with applicable emission standards; and

“(€H) it provides for revision, after public hearings, of such plan

(i) from time te time as may be necessary to take account of re-

visions of such national primary or secondary ambient air quality

standard or the availability of improyed or more expeditious methods

of achieving such primary or secondary standard; or (ii) whenever

the Administrator finds on the basis of information available to him

that the plan is substantially inadequate to achieve the national am-

bient air quality primary or secondary standard which it implements.”

a

6 TRAIN v. NATURAL RESOURCES DEF. COUNCIL

plans. 36 Fed. Reg. 6680. After receiving numerous

comments, including those from respondent Natural Re-

sources Defense Council, Inc. (NRDC), it issued final

guidelines on August 14, 1971. See 40 CFR Part 51.

The national standards themselves were timely promul-

gated on April 30, 1971. See 40 CFR Part 50:

No one ean doubt that Congress imposed upon the

Agency and States a comprehensive planning task of

the first magnitude which was to be accomplished im

a relatively short time. In the case of the States, it

was soon realized that in order to develop the requisite

plans within the statutory nine-month deadline, efforts

would have to be focused on determining the stringent

emission limitations necessary to comply with, national

standards. This was true even though compliance with

the standards would not be necessary until the attain-

ment date, which normally would be three years after

Agency approval of a plan. The issue then arose as to

how these stringent limitations, which often could not be

satisfied without substantial research and investment,

should be applied during the period prior to that date.

One approach was that adopted by Florida, under which

the plan’s emission limitations would not take effect until

the attainment date. Under this approach, no source is

subject to enforcement actions during the preattainment

period, but all are put on notice of the limitations with

which they must eventually comply.’ Since the Florida

approach basically does not require preattainment date

pollution reductions on the part of those sources which

3 While sources yould not be subject to enforcement actions based

on their levels of emissions prior to the attainment date, they could

be required to adhere to schedules for the planning, contracting and

construction necessary to assure that their emissions would be within

permissible levels as of the attainment date. See 40 CFR §§ 51.15 (c),

52.524 (b).

.

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 7

might be able to effect them,* the Agency encouraged an

alternative approach. Under it a State’s emission limita-

tions would be immediately effective. The State, how-

ever, would have the authority to grant variances to par-

ticular sources which could not immediately comply with

the stringent emission limitations necessary to meet the

standards.

Georgia chose the Agency’s preferred approach.’ Its

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plan provided tor immediately effective categorical emis-

sion limitations, but also incdrporated a variance proce-

dure whereby particular sources could obtain individually

tailored relief from genera! requirements. This variance

provision, Ga. Code Ann. § 88-912, was one of the bases

* At least in the case of Florida, this approach has apparently been

modified by subsequent adoption of schedules which require com-

pliance by a number of specified sources prior to July 1, 1975. See

40 CFR § 52.524 (c) (1974).

° All other States within the Fifth Circuit, except Florida, also

adopted plans with limitations which were effective immediately or,

in the case of Texas, only a few months thereafter.

®Ga. Code Ann. § 88-912 (1971), is as follows:

Variances—

“The department may grant specific or general classes of variances

from the particular requirements of any rule, regulation or general

order to such specific persons or class of persons or such specific

source or general classes of sources of air contaminants upon such

conditions as it may deem necessary to protect the public health

and welfare, if it finds that strict compliance with such rule, reguia-

tion or general order is inappropriate because of conditions beyond

the control of the person or classes of persons granted such variances,

or because of special circumstances which would render strict com-

pliance unreasonable, unduly burdensome, or impractical due to

special physical conditions or causes, or because strict compliance

would result in substantial curtailment or closing down of one or

more businesses, plants or operations, or pecause no alternative

facility or method of handling is yet available. Such variances may

be limited in time. In determining whether or not such variances

shall be granted, the department shall give consideration to the

protection of the public health, safety and general welfare of the

a er

8 TRAIN v. NATURAL RESOURCES DEF. COUNCIL

upon which the Agency’s approval of the Georgia plan

was successfully challenged by respondents in the Court

of Appeals. It is the only aspect of that court’s decision

as to which the Agency petitioned for certiorari.

II

The Agency’s approval of Georgia’s variance provision

was based on its interpretation of § 110 (a)(3),‘ which

provides that the Agency shall approve any revision of an

implementation plan which meets the § 110 (a)(2) re-

quirements applicable to an original plan. The Agency

concluded that § 110 (a)(3) permits a State to grant indi-

vidual variances from generally applicable emission stand-

ards, both before and after the attainment date, so long

as the variance does not cause the plan to fail to comply

with the requirements of § 110 (a)(2). Since that sec-

tion requires, inter alia, that primary ambient air stand-

ards be attained by a particular date, it is of some conse-

public, and weigh the equities involved and the relative advantages

and disadvantages to the resident and the occupation or activity

affected. Any person or persons seeking a variance shall do so by

filing a petition therefor with the director of the department. The

director shall promptly investigate such petition and make a recom-

mendation as to the disposition thereof. If such recommendation

is against the granting of the variance, a hearing shall be held thereon —

within 15 days after noiice to the petitioner. If the recommendation

of the director is for the granting of a variance, the department may

do so without a hearing: Provided, however, that upon the petition

of any person aggrieved by the granting of a variance, a public

hearing shall be held thereon. A variance granted may be revoked

or modified by the department after a public hearing which shall

be held after giving at least 15 days prior notice. Such notice shall

be served upon all persons, known to the department, who will be

subjected to greater restrictions if such variance is revoked or modi-

fied, or are likely to be affected or who have filed with the department

a written request for such notification.”

7 The text of § 110 (a)(3) appears at 13, infra.

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 9

quence under this approach whether the period for which

the variance is sought extends beyond that date. If it

does not, the practical effect of treating such preattain-

ment date variances as revisions is that they can be

granted rather freely.

This interpretation of § 110 (a)(3) was incorporated

Jn the Agency’s original guidelines for implementation

plans, 40 CFR $§ 51.6 (c), 51.32 (f).* Although a spokes-

; i that the

.Ageney’s guideline in this regard “correctly provides that

. variances which do not threaten attainment of a national

standard are to be considered revisions of the plan,” °

that organization later developed second thoughts on the

matter. Its present position, in which it is joined by

another environmental organization and by two individ-

ual respondents who reside in affected air quality control

regions within the State of Georgia, is that variances ap-

plicable to individual sources may be approved only if

they meet the stringent procedural and substantive

standards of § 110 (f).’’ This section permits one-year

“nostponements” of any requirement of a plan, subject to

conditions which will be discussed below.

The Court of Appeals agreed with respondents, and

ordered the Agency to disapprove Georgia’s variance pro-

“A State’s determination to defer the applicability or any por-

tion(s) of the contro] strategy with respect to such source(s) will

not necessitate a request for postponement under this section

unless such deferral will prevent attainment or maintenance of

a national standard within the time specified in such plan: Pro-

vided, however, ‘That any such determination wili be deemed a

revision of an applicable plan under § 51.6.”

° Hearings, on Implementation of the Clean Air Act Amendments

of 1970—Part I (Title 1), before the Subcommittee on Air and Water

Pollution of the Senate Committee on Public Works, 92d Cong., 2d

Sess., 45 and n. 51 (statement of Richard E. Ayres).

1 The text of § 110 (f) appears at 13-14, infra.

10 TRAIN v. NATURAL RESOURCES DEF. COUNCIL

vision, although it did not specify which of the § 110

(a)(2) requirements were thereby violated.’' It held

that while the revision authority of § 110 (a)(3) was

available for generally applicable changes of an imple-

mentation plan, the postponement provision of § 110 (f)

was the only method by which individual sources could

obtain relief from applicable emission limitations. In

reaching this conclusion the court rejected petitioner's

suggestion that whether a proposed variance should be

treated as a “revision” under § 110 (a)(3), or as a “post-

ponement” under § 110 (f), depended on whether it would

affect attainment of a national ambient air standard,

rather than on whether it applied to one source or to

many.

Other circuits have also been confronted with this issue,

and while none has adopted the Agency’s position, all

have differed from the Fifth Circuit. The first case was

Natural Resources Defense Council, Inc. v. Environ-

mental Protection Agency, 478 F. 2d 875 (CA1 1973).

For reasons to.be discussed, infra, at 29-32, the First Cir-

cuit rejected the révision atithority as a basis for a vari-

ance procedure. It nonetheless concluded that prior to

the three-year date for mandatory attainment of primary

standards, a State could grant variances to sources which

could not immediately meet applicable emission limita-

tions. The court reasoned:

“We can see value in permitting a state to impose

strict emission limitations now, subject to individual

exemptions if practicability warrants; otherwise it

may be forced to adopt less stringent limitations in

'! Other circuits which have ordered the disapproval of implemen-

tation plan variance procedures have likewise failed to identify the

offended requirement, even though § 110 (a)(2) quite clearly man-

dates approval of any plan which satisfies its minimum conditions.

See n. 2, supra. Since petitioner has not raised the point in this

Court, we have no occasion to consider it.

va

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 11

order to accommodate those who, notwithstanding

reasonable efforts, are as yet unable to comply.

“The Administrator sees his power to allow such

exemption procedures as deriving from the ‘revision’

authority in § [110] (a)(3). We tend to view it

more as a necessary adjunct to the statutory scheme,

which anticipates greater flexibility during the pre-

attainment period.” 478 F. 2d, at 887.

‘

PING ee |

en

The First Circuit’s resolution, which has been described

as “Solomonesque,” is not tied to any specific provision

of the Clean Air Act. Rather, it is quite candidly a

judicial creation providing flexibility which, according to’

its creators, Congress may be inferred to have intended to

provide. Two other circuits subsequently followed the

First Circuit. Natural Resources Defense Council, Inc. v.

Environmental Protection Agency, 483 F. 2d 690, 693-

694 (CAS 1973); Natural Resources Defense Council, Inc.

Vv. Environmental Protection Agency, 494 F. 2d 519, 523

(CA2 1974). Neither expanded on the First Circuit's

reasoning.

The Ninth Cireuit has adopted a third approach to this

question, in Natural Resources Defense Council, Inc. v.

Environmental Protection Agency, 507 F.2d 905,911-917

(CA9 1974). After considering legislative history, the

Ninth Circuit concluded that Congress did not intend the

postponement mechanism to be the exclusive source for

variances. But the court also did not adopt the Ageney’s

view that variances could be authorized as § 110 (a) (3)

revisions, although it did not explain its rejection of this

interpretation. Rather, the Ninth Circuit agreed with

the First Circuit that flexibility was “a necessary adjunct

to the statutory scheme.” It explained:

“As long as a possible variance from a state plan will

not preclude the attainment or maintenance of such

standards, we discern no legislative intent to. commit

Fey

12. TRAIN v. NATURAL RESOURCES DEF. COUNCIL -

a state, in toto, to its initial plan, without any flexi-

bility whatsoever.” 507 F. 2d, at 913. :

The Ninth Circuit, however, rejected the First Circuit's

distinction between the pre- and postattainment periods,

It concluded that statutory support for flexibility was

as strong after the attainment date as before, especially in

light of the Act’s encouragement of the States to adopt

~ plans even stricter than those required to attain national

standards.’* The court thus adopted an approach which

differs from the Agency’s, but which reaches the same

result—authorization of variances on standards other

than those required for § 110 (f) postponements, both

before and after the attainment date, so long as the

variance does not prevent timely attainment and subse-

quent maintenance of national ambient air standards.

After the Courts of Appeais for the First, Eighth, Fifth,

and Second Circuits had spoken, but prior to the decision

of the Ninth Cireuit, the Ageney modified its guidelines

to comply with the then-unanimous rulings that after the

attainment date the postponement provision was the only

basis for obtaining a variance. 39 Fedg@Reg. 34533-

34535; 40 CFR $$ 51.11 (g). 51.15 (b), 5 BRMF). At the

same time, the Agency formally disapproved variance pro-

visions to the extent they authorized variances extending

beyond attainment.dates, unless the stendards of § 110 (f)

were met. 39 Fed. Reg. 34535; 40 CFR § 52.26.

Because the Agency has conformed its regulations to

the decisions of the First; Eighth. and Second Circuits,

this case on its facts is now limited to the validity of the

Georgia variance provision insofar as it authorizes vari-

ances effective before Georgia’s attainment date, which

is in July 1975."° The Ageney nonetheless has not aban-

12 See $116 of the Clean Air Act, as added, 84 Stat. 1689, 42

U.S. C. §1857d-1.

13 The ‘attainment dates for several air quality control regions

within other Fifth Circuit States are as late as May 31, 1977, by

~

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 13

doned its original view that the revision section author-

izes variances which do not interfere with the attainment

or maintenance of national ambient air standards. More-

over, the Agency is candid in admitting that should we

base our decision on its interpretation of § 110 (a)(3),

the decision would support the approval of implementa-

tion plans which provide for variances effective after the

attainment date,

The disparity among the courts of appeals rather

strongly indicates that the question does not admit of an

easy answer. Without going so far as to hold that the

Agency's construction of the Act was the only one it per-

missibly could have adopted, we conclude that it was at

the very least sufficiently reasonable that it should have

been accepted by the reviewing courts.

TH

Both of the sections in controversy are contained in

$110 of the amended Clean Air Act, which is entitled

“Implementation Plans.” Section 110 (a)(3) provides:

“The Administrator shall approve any revision of an

implementation plan applicable to an air quality

control region if he determines that it meets the

requirement of paragraph (2) and has been adopted

by the State after reasonable notice and public

hearings.”

Section 110 (f) provides:

“(1) Prior to the date on which any stationary

source or class of moving sources is required to com-

ply with any requirement of an applicable implemen-

tation plan the Governor of the State to which such

plan applies may apply to the Administrator to post-

pone the applicability of such requirement to such

virtue of two-year extensions granted pursuant to §110(e). See

n. 20, infra. ;

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14. TRAIN v. NATURAL RESOURCES DEF. COUNCIL

source (or class) for not more than one year. If the

Administrator determines that— ~

“(A) good faith efforts have been made to comply

with such requireme? . »efore such date,

“(B) such source (or class) is unable to comply

with such requirement because the necessary tech-

nology or other alternative methods of control are

not available or have not been available for a scared

cient period of time,

“(C) any available alternative operating proce-

dures and interim control measures have reduced

or will reduce the impact of*such source on public

health, and

“(D). the continued operation of such source is es-

sential to national security or to the public health

or welfare,

“then the Administrator shall grant a pomponement

of sueh requirement.” ™

4

4 Section 110 (f)(2) specifies the procedural requirements for

postponement. It is as follows:

“(2) (A) Any determination under paragraph (1), shall (i) be

made on the record after notice to interested persons and opportunity

for hearing, (ii) be based upon a fair evaluation of the entire record

at such hearing, and (iii) include a statement setting forth in detail

the findings and conclusions upon which the determination ,is based.

“(B) Any determination made pursuant to this paragraph shall

be subject to judicial review by the United States court of appeals

for the circuit which includes such State upon the filing in such

court within 30 days from the date of such decision of a petition

by any interested person praying that the decision be modified, or

set aside in whole or in part. A copy of the petition shall forthwith

be sent by registered or certified mail to the Administrator and

thereupon the Administrator shall certify and file in such court the

record upon which the final decision complained of was issued, as

provided in section 2112 of title 28, United States Code. Upon the

filing of such petition the court shall have jurisdiction to affirm or

set aside the determination complained of in whole or in part. The

6

TRAIN ». NATURAL RESOURCES DEF, COUNCIL 15

As previously noted, respondents contend that “vari-

wwes” applicable to individual sourees—for example, a

particular factory—may be approved only if they meet

the stringent procedural and substantive standards set’

forth in §110(f). As is apparent from the text of

£110 (f), its postponements may be for no more than

one year, may be granted only if application is made prior

to the date of required compliance, and must be sup-

ported by the Agency's determination that: the source’s

continued operation “is essential to national. security or

to the publie health or welfare.” Petitioner, on the other

hand, relies on the revision authority of $110 (a)(3) for

the contention that a state plan may provide for an indi-

vidual variance from generally applicable eniission limita-

tions so long as the varianee does not cause the plan to

fail to comply with the requirements of § 110 (a)(2),

Sine’ a variance would normally implicate only the § 110

(a)(2)(A) requirement that plans provide for attainment

and maintenance of national ambient air standards, treat-

ment as revisions would result in variances being readily

approved in two situations: first. where the variance does

not defer compliance beyond the attainment date: ™ and

findings of the Administrator with respect to questions of fact (inelud-

ing each determination made under subparagraphs (A), (B), (C),

and (D) of paragraph {1)) shall be sustained if based upon a fair

evaluation of the entire record at such hearing.

“(C) Proceedings before the court under this paragraph shall take

precedence over all the other causes of action on the docket and:

shall be assigned for hearing and decision at the earliest practicable

date and expedited in every way. j

“(D) Section 307 (a) of this title (relating to subpenas) shall be

applicable to any proceeding under this subsection,”

’* We recognize that attainment of the standards is required as

soon as “practicable,” and that a preattainment variance could. not

be granted under the revision authority if immediate conipliance

by a particular source were “practicable” and such compliance would

expedite :itainment. See p, 34 n. 30; infra, ;

ae ae

SURES ey AER CT Sa ae

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16 TRAIN v. NATURAL RESOURCES DEF. COUNCIL

second, where the national standards have been attained

and the veriance is not so great that a plan incorporating

it could not insure their continued maintenance. More-

over, a $110 (a)(3) revision may be granted on the basis

of hearings conducted by the State. whereas a’ § 110 ( f)

postponement is available only after'the Agency itself

conducts hearings. .

There is thus considerable practical importance at-

tached to the issue of whether variance’ are to be treated

as revisions ‘or as postponements, or for that matter, as

the First Circuit would have it. as neither until the man-

datory attainment date but as postponements thereafter.

This practical importance reaches not merely the opera-

tor of a particular source who believes that circumstances

justify his receiving a variance from catege al limita-

tions. It ulso réaches the broader issue of whether Con-

gress intended the States to retain any significant degree

of control of the manner in which they attain and main-

tain national standards, at least once their initial plans

have been approved or, under’ the First Cireuit’s ap-

proach, once the mandatory attainment date has arrived:

To explain our conelusion as to Congress’ intent, it is

necessary that we consider the revision and "ostponement

sections in the context of other provisions of the amended

Clean Air Act, particularly those which distinguish be-

tween national ambient air standards and emission

limitations.

As we have already noted, primary ambietit air stand-

ards deal with the quality of outdoor air, and are fixed

on a nationwide basis at levels which the Agency deter-

mines will protect the public health, - It is attainment and

maintenance of these national standards which § 110 (a)

~ (2)(A) requires that state plans provide. In complying

with this requirement a State's plan must include “emis-

sion limitations,” which are regulations of the composi-

-—>

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 17

tion of substances emitted into the ambient air from such

sources as power plants, service stations, and the like.

They are the specifie rules to which operators of pollu-

tion sourees are subject. and whieh if enforced should

result in ainbient air which meets the national standards.

The Agency is Plainly charged by the Act with the

responsibility for setting the national ambient air stand-

ards. Just as plainly, however, jt is relegated by the

_ Act toa secondary role in the process of determining and

enforcing the specific, source-by-source emission limita-

tions which are necessary if the national standards it has

set are to be met.’” Under £110 (a)(2), the Agency is

required to approve a state plan whieh provides for the

timely attainment and subsequent maintenance of am-

bient air standards, and which also satisfies that section's

other general requirements. The Act gives the Ageney

no authority to question the wisdom of a State's choices

of emission. limitations if they are part of a plan whieh

satisfies the standards of $110(a)(2). and the Ageney

may devise and promulgate a specific plan of its own

only if a State fails to submit an implementation plan

which satisfies those standards, £110 (¢). Thus, so

long as the ultimate effect of 4 State's choiee of emission

limitations is couupliance with the national standards for

ambient air, the State is at liberty: to adopt whatever mix

of emission limitations it deems best suited to its particu.

lar situation.

16 Exceptions ure the Agency's authority to <er emission limitations

for new motor vehicles, § 202 ot seq. of the Clean Air Act, as amended.

S4 Stat. 1690-1698, 42 1° OC. § 1957f-1 « 4€q4.; 10 set emission

limitations for areraft, $231 ¢f seq. of the Clean Air Act. as added,

84 Stat. 1703-1705, 42 UL Ss © SUS57I-O ot q.. tO set emission

limitations for categories of new ationary sevrces, $111 of the

Clean Air Act, as added, 84 Stat. 1683-1684, 42 Tos § 185704:

and to regulate the sale of fuels and fuel additives, $211 of the

Clean Air Act, as amended, 84. Stat, 160s. Ont ss § 15571-ve.

eye YEMEN a |

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{8 TRAIN ». NATURAL RESOURCES DEF. COUNCIL

This analysis of the Act’s division of responsibilitit

is not challenged by respondents insofar as it concerns the

process of devising and promulgating an initial imple-

mentation plan. Respondents do, however, deny that

the States have such latitude once the initial plan is

approved. Yet the third paragraph of $ 110 (a), and the

one immediately following the paragraphs which specify

that States shall file implementation plans and that the

Ageney shall approve them if they satisfy certain broad

criteria, is the section which requires the Agency to “ap-

prove any revision of an implementation plan” if it

“determines that it meets the requirements” of § 110

(a)(2). On its tace, this provision applies to any re-

vision, without regard either to its breadth of applica-

bility. or to whether it is to be effective before or after

the attsrinment date; rather. Ageney approval is subject

only to the condition that the revised plan satisfy the

general requirements applicable.to original implementa-

tion plans. Far from evineing congressional intent that

the Ageney assume control of a State’s emission limita-

tlons mix onee its initial plan is approved, the revision

section is to all appearances the mechanism by which the

States may obtain approval of their developing policy

choices as to the mos! practicable and desirable methods

of restricting total emissions to a level which is consistent °

with the national ambient air standards.

In order to challenge this characterization of $110

(a)(3), respondents principally rely on the contention

that the postponement provision, $110 (f), is the only

mechanism by which exceptions te a plan's requirements

mav be obtained, under any circumstances. Were this

an accurate description of $110 (f), we would agree that

thé revision authority does not have the broad application

asserted by the Ageney. Like the Ninth Circuit,’ how-

> Natural Resourers Defense Council, Inc. v. Environmental Pro-

- fection Ag Med, 5OT F 2d 905, 911-913 (1974 ‘

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 19

ever, we believe that § 110 (f) serves a function different

from that of supervising state efforts to modify the initial

mix of emission limitations by which they implement

national standards.

In our view, § 110 (f) is a safety valve by which may

be accorded, under certain carefully specified cireum-

stances, exceptions to the national standards themselves.

That this is its role is strongly suggested by the process

by which it became a part of the Clean Air Act. The

House version of the Amendment, H. R. 17255, 91st

Cong., 2d Sess.. contained no provisions for either post-

ponements or, most significantly, mandatory deadlines

for the attainment of national ambient air standards.

The Senate bill, S. 4358, 91st Cong.. 2d Sess.. did con-

tain both the three-year deadline, which now appears in

$110(a)(2), and the predecessor of the present § 110

(f). That predecessor > permitted the governor of a

** Proposed § 111 (f) of the Clean Air Act, as proposed to be added

by S. 4358, 91st Cong., 2d Sess., is as follows:

“(1) No later than one year before the expiration of the period

for the vied of ambient air of the quality established for any

national ambient air quality standard promulgated pursuant to sec-

tion 110 of this: Act, the Governor of a State in which is located all

or part of an air quality control region designated or established

pursuant to this Act may file a petition in the district court of the

United States for the district in which all or a part of such’ air

quality control region is located against the United States for relief

treet the effect of such expiration (A) on such region or portion

thereof, or (B} on a person or persons in such air qyality control

region. In the event that such region is an interstate air quality

control region or portion thereof, any Governor of any State which

is wholly or partially included in such interstate region shall be per-

mitted to intervene for the presentation of evidence and argument on

the question of such relief. ;

“(2) Any action brought pursuant to this subsection shall be heard

and deterngined by a court of three judges in accordance with the

provisions of sevtion 2287 oimtitle 28 of the United States Code and

appeal shall be to the Supreme Court. Proceedings before the three

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20. TRAIN v. NATURAL RESOURCES DEF. COUNCIL

State to petition a three-judge District Court for “relief

from the effect” of expiration of the three-year deadline

as to a region or persons, and provided for the grant of

judge court, as authorized by this subsection, shall take precedence

on the docket over all other causes of action and shall be assigned

for hearing and decision at the earliest practicable date and expedited

in every way. :

~(3)°A) In any such proceeding ‘the Secretary shall intervene for

the purpose of presenting evidence and argument on the question of

whether relief should be granted.

“(B) The court, in its discretion, may permit any interested person

residing in any affected State to intervene for the presentation of

evidence and argument on the question of relief.

(4) The court, in view of the paramount interest of the United

States in achieving ambient air quality necessary to protect the

health of persons shall grant relief only if it determines such relief is

essential to the public interest and the general welfare of the persons

in such region, after finding—

“(A) that substantial efforts have been made to protect the health

of persons in such region; and

“(B) that means to control emissions causing or contributing to

such failure are not available or nave not been available for a suffi-

cient period to achieve compliance prior to the expiration of the

period to attain an applicable standard; or

“(C) that the failure to achieve such ambient air quality standard

is caused by emissions from a Federal facility for which the President

has granted an ¢xemption pursuant to section 118 of this Act.

“(5) The court, in granting such relief shall not extend the period

established by this Act for more than one vear and may grant re-

newals for additional one year periods only after the filing of a new

petition with the court.

“(6) The Secretary, in consultation with any affected State or

States, shall take such action as may be necessary to modify any

implementation plan or formulate any new implementation plan for

the period of such extension. Be

“(7) No extension granted pursuant to this section shall effect

compliance with any emission requirement, timetable, schedule of

compiiance, or other element of any implementation plan unless such

requirement, timetable, schedule of compliance, or other element

of stich plan is the subject of the specific order extending the time

for compliance with such national ambient air quality standard.”

~

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 21

such relief upon a showing of conditions similar to those

now appearing in § 110 (f). Under its language the post-

ponement provision plainly applied only when deferral

of a national deadline was sought.”

The Conference Committee adopted the Senate’s gen-

eral approach to the deadline issue. Its report states:

“The conference substitute follows the Senate

amendment in establishing deadlines for implement-

ing primary ambient air quality standards but leaves

the States free to establish a reasonable time period

within which secondary ambient air quality stand-

ards will be implemented. The conference substi-

tute modifies the Senate amendment in that it allows

the Administrator to grant extensions for good causes

shown upon application by the Governors.’ H. Conf.

Rep. No. 91-1783, 91st Cong., 2d Sess., 45. (Em-

Nowhere does the report suggest that other changes in

the Senate’s proposed $ 111 (f) were intended to dramati-

cally broaden its reach, such that it would not merely

be available to obtain deferral of the strict deadlines for

compliance with national standards, but would also be

the exclusive mechanism for any ameliorative modifica-

tion of a plan, no matter how minor.

1 This fact, as well as the “safety valve” nature of the Senate's

predecessor to the postponement provision, is also apparent from

the Senate report:

“Finally, the Committee would recognize that compliance with the

national ambient air quality standards deadline may not be possible.

If a Governor judges that any region or portions thereof within his

State will not meet the national ambient air quality standard within

the time provided, | section 111 (f) of] the bill would authorize him—

one vear before the deadline—to file a petition against the United

States in the District Court of the United States for the district

where such region or portion thereof is located for relief from the

effect of such expiration.” 3. Rep, No. 91-1196, 91st Cong., 2d

Sess., 14-15 (1970).

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22. TRAIN v. NATURAL RESOURCES DEF. COUNCIL

That the postponement provision was intended merely

as a method of escape from the mandatory deadlines

becomes even clearer when one considers the summary of

the conference’s work which Senator Muskie presented

to the Senate. Tie summary referred to a provision

under which a single two-year extension of the deadline

could be obtained were it shown to be necessary at the

time a State’s initial plan was submitted. It then im-

mediately discussed the postponement provision, as

follows:

“A Governor may also apply for a postponement

of the deadline if, when the deadline approaches, it

is impossible for a source to meet a requirement

under an implementation plan, interim control

measures have reduced (or will reduce) the adverse

health effects of the source, and the continued opera-

tion of the source is essential to national security or

the public health or welfare of that State.” 116

Cong. Rec. 42384-42385. (Emphasis added.)

This limited view of the role of § 110 (f) is reinforced

by comparison with the section which immediately pre-

cedes it in the statute, $110 (e).°’ This is the provision

*’ Section 110 (e), 42 U.S. C. § 1857¢-5 (e), is as follows:

*(1) Upon application of a Governor of a State at the time_of sub-

mission of any plan implementing « national ambient air quality

primary standard, the Administrator may (subject ‘9 paragraph

(2)) extend the three-year period referred to in subsection (a) (2)

_ (A}(i) for not more than two years for an air quality control region if

after review of such plan the Administrator determines that—

“(A) one or more emission sources (or classes of moving sources)

are unable to comply with the requirements of such plan which

implement such primary standard because the necessary technology

or other alternatives are not available or will not be available soon

enough to permit comphanee within such three-year period, and

“(B) the State has considered and applied as a part of its plan

reasonably available alternative means of attaimmmg such primary

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 23

to which Senator Muskie’s summary was obviously re-

ferring when it stated that the three-year deadline could

be extended for up to two years if proper application were

made at the time a State first submitted its plan. Like

“$110 (f), $110 (e) is available only if an emission source

is unable to comply with plan requirements because “the

necessary technology or other alternatives are not avail- -

able or will not be available soon enough to permit. com-

pliance.” Section 110 (e) also contains a requirement

parallel to that of § 110 (f)(1)(C), that available alter-

native procedures and control measures have been consid-

ered and utilized. Unlike § 110 (f), however, $110 (e)

contains no requirement that “the continued operation of

such source is essential to national security or to the pub-

lic health or welfare.” Section 110 (e) thus permits a

two-year extension on a showing considerably less strin-

gent than that required for a § 110 (f) one-year postpone-

ment. This disparity is quite logieal, however, because

the relief under § 110 (e) is limited to an initial two-year

period, whereas that under § 110 (f) is available at any-

time, so long as application is made prior to the effective

date of the relevant requirement.”

standard and has justifiably concluded that attainment of such pri-

mary standard within the three years’ cannot be achieved.

“(2) The Administrator may grant an extension under paragraph

(1) only if he determines that the State plan provides for—

“(A) application of the requirements of the plan which implement

such primary standard to all emission sources in such region other

than the sources (or classes) described in paragraph (1)(A) within

the three-year period, and

“(B).such interim measures of control of the sources (or classes)

deseribed in paragraph (1)(A) as the Administrator determines to

be reasonable under the circumstances.”

*! The language of § 110 (f) would also seem to support any number

of suecessive one-year postponements, so Jong ‘as application were

timely. There is potentially some dispute as to this, however, be

cause the Conference Committee deleted, without comment. language

ee ee ee

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GES TRR:

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24 TRAIN v. NATURAL RESOURCES DEF. COUNCIL

On the other hand, the disparity between the standards

of $110 (e) and those of § 110 (f) would be inexplicable

were $110(f) also the sole mechanism by which States

could modify the particular emission limitations mix

ineorporated in their initial implementation plans, even

though the desired modifications would have no impact

on the attainment or maintenance of national standards.

Respondents’ interpretation requires the anomalous con-

clusion that Congress, having stated its goal to be the

attainment and maintenance of specified ambient air

standards, nonetheless made it significantly more diffi-

cult for a State to modify an emission limitations mix

which met those standards both before and after modi-

fication than for a State to obtain a two-vear deferral

in the attainment of the standards themselves. The

interpretation suffers, therefore, not only from its

contrariety to the revision authority “whieh Con-

gress provided, but also from its willingness to ascribe

inconsistency to a earefully considered congressional

enactinent.

We believe that the foregoing atialysis of the structure

and legislative history of the Clean Air Amendments

shows that Congress intended to impose national ambient

air standards to be attained within a specifie period of

time. It also shows that in $$ 110(e) and (f) Congress

‘arefully limited the circumstances in’ which timely

attainment and subsequent maintenance of these stand-

ards could be cormpromised. We also believe that Con-

gress, consistent with its declaration that, “Each State

in the Senate predecessor to $110 ({) that explicitly permitted suc-

cessive postponements. See proposed § 111 (1)(5) of the Clean

Air Act, as proposed to be added by S. 435s, 91st Cong., 2d Sess... n.

IS. supra. This question is not presented by this case, and we do not

decide it. We simply note the possibility of successive” postpone-

ments as an additiomal element which would reasonably explain the

imposition of harsher standards in § 110 (f) than in § 110 (e).

s

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 25

shall have the primary responsibility for assuring air

quality” within its boundaries, $107 (a), left to the

States considerable latitude in determining specifically

how the standards would be met. This discretion in-

cludes the continuing authority to revise choices about

the mix of emission limitations. We therefore conclude

that the Agency's interpretation of $$ 110(a)(3) and

-110(f) was “correct,” to the extent that it ean be said

with complete assurance that any particular interpreta-

tion of a complex statute such as this is the “correct”

one. Given this conclusion, as well as the facts that the

Agency is charged with administration of the Act, and

that there has undoubtedly been reliance upon its inter-

pretation by the States and other parties affected by the

Act, we have no doubt whatever that its construction was

sufficiently reasonable to preclude the Court of Appeals

from substituting its judgment for that of the Agency.

Udall v. Tallman, 380 U.S. 1, 16-18 (1965): McLaren v.

Fleischer, 256 U. S. 477, 480-481 (1921). We are not

persuaded to the contrary by any of the arguments

advanced by respondents or by the courts of appeals

which have rejected § 110 (a)(3) as authority for grant-

ing variances. To these various arguments we now turn.

IV

The principal basis on which the Fifth Cireuit rejected

the Ageney’s view of the revision and postponement

sections was its analysis of their language. The court

focused first on the fact that § 110 (f) speaks in terms of

“any stationary source,” and of the postponement of “any

requirement of an applicable implementation plan.”

(Emphasis added.) This language, according to the

Fifth Circuit, belies the Ageney’s contention that the

postponement section is inapplicable to those variances

which do not jeopardize the attainment or maintenance

See Soni

26 TRAIN v. NATURAL RESOURCES DEF. COUNCIL

of national standards. The court went on to state, with-

out citation or supporting reasoning:

“A revision is a change in a generally applicable

requirement; a postponement or variance [is a]

change in the application of a requirement to a

particular party. The distinction between the two

is familiar and clear.” 489 F. 2d, at 401.

We think that the Fifth Cireuit has read more into

$110(f). and more out of §$110(a)(3), than careful

analysis can sustain. In the first place, the “any sta-

tionary source” and “any requirement” ianguage of § 110

(f) serves only to define the matters with respect to

which the governor of a State may apply fora postpone-

ment. The language does not, as the Fifth Cireuit would

have it. state that all sources desirous of any form of re-

lief must rely solely on the postponement provision.

While § 110 (f) makes its relief available to anv source

which can qualify for it, regardless of whether the relief

would jeopardize national standards, the section does not

even suggest that other forms of relief, having no impact

ow the national goal of achieving air quality standards,

are not also available, on appropriately less rigorous

showings.

As for the Fifth Circuit's observation that “a revision

is a change in a generally applicable requirement,”

whereas a “postponement or variance” deals with partic-

ular parties, we are not satisfied that the distinction is so

“familiar and clear.” While a variance is generally

thought to be of specific applicability.** whether a revision

“2 Wexnote however that there may be substantial difficulties in

determining whether a proposed modification is of general or specific

ippheation. Requirements written in general terms may in fact

be of very speeific impact, as a result of the limited number of sim-

ilar <ourees. or even of conscious efforts to evade restrictions on

“specifie’ changes. For example, the regulation at issue in Getty

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 27

is general or specific depends on what is being revised.

In this instance, it is implementation plans which are be-

ing revised, and it is clear that such plans may be quite

detailed, both as to sources and the remedial steps re-

quired of the sources. Not only does $116 ¢a)(2)(B)

specify that a plan shall include “emission limitations,

schedules, and timetables for compliance,” ** but respond-

_ents themselves have urged that the very specific vari-

ances which have already been granted in Georgia should

have been, and may still be, treated as “compliance sched-

ules” contained within the original plan.**

A further difficulty with the Fifth Circuit's analysis

of the language of $$ 110 (a)(3) and 110(f) is that it

entirely overlooks an obvious distinction between re-

visions and postpovements. In normal usage, to “post- ‘

pone” is to defer, whereas to “revise” is to remake or

amend. In the implementation plan context, normal

usage would suggest that a postponement is a deferral of

the effective date of a requirement which remains a part

of the applicable plan, whereas a revision is a change in

the plan itself which deletes or modifies the require-

ment. If by revision a requirement of a plan is removed,

then a person secking relief from that requirement has no

envionment bd

Oil Co. v. Ruckelshaus, 467 F.2d 349 (CA3 1972). spoke of all tuel

burning equipment having a maximum rate of heat input equal to

or greater than 500 million Bru per hour, and located in New Castle

County, Del., south of U.S. Route 40. ‘There was only one such

installation.

** The Florida plan, for examole, presently contams compliance

schedules which specify not merciy particular business operations,

but also the principal emission sources within particular operations.

See 40 CFR § 52.524 (¢) (1974).

** Brief for Respondents 48-49. Respondents do not, however.

suggest any statutory basis for incorporating compliance schedules

into a plan onee it has been approved. We know of none save the

revision authority which respondents would have us declare unaVval-

able for modifications of a specific nature.

28 TRAIN v. NATURAL RESOURCES DEF. COUNCIL

need to seek its postponement, and §110(f) is by its

terms inapplicable. But if such a person cannot obtain

a revision, because for example the plan as so revised

would no longer insure timely attainment of the national

standards, then under the Act he has no alternative but to

comply or to obtain a postponement of the requirement’s

effective date—if he can satisfy the stringent conditions of

$110(f). This distinetion between the two is so

straightforward. and so consistent with the structure and

history of the Act, as discussed in Part ITI of this opinion,

that we perceive no basis for the Fifth Circuit’s strained

line of analysis.*°

The Fifth Cireuit also relied on the “technology

forcing” nature of the Clean Air Amendments of 1970.

It reasoned that because the statute was intended to

force technology to meet specified, scheduled standards,

it was essential to insure that commitments made at the

2° Much of the confusion which has afflicted the Fifth Circuit and

the other courts of appeals probably has been generated by the States’

practice of referring to exceptions from = categorical limitations as

“variances” rather than as “revised compliance schedules,” and also

by the facet that in practice a “variance” typically has the effect of

deferring the date on which complianee with eategorieal limitations

is required. Our concern however, is not with the nomenclature

assigned to exceptions, but rather with whether they are of a nature

that may be authorized as $110 (a)(3) revisions. That an exception

which does not jeopardize national standards may in effeet be a de-

ferral does not change the facts (1) that it revises a plan from one

which requires a source to comply by, say, July 1972, to one which

requires its complianeé as of, sav, May 1975, and (2) that the plan

as so revised still possesses all of the characteristics which it: must

under $110¢4)(2). An exeeption which does jeopardize national

standards, on the other hand, cannot be a revision beeause it would

deprive the revised plan of a charaetertstie without which it cannot

inder the Act be an appheable plain, See § 110 (d)) which, defines

“applicable plan” as the “implementation plan, or most recent re-

vision thereof, which has been approved under [§ 110 (a) (2)] 2...”

Such an exception must be obtained, if at-all, as a postponement of

the requirements of the applieable plan.

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 29

planning stage could not be readily abandoned when the

time for compliance arrived. According to the Fifth Cir-

cuit, §110(f) “is the device Congress chose to assure

this.” 489 F. 2d, at 401. Clearly § 110 (f) does present

a formidable hurdle for those proposed departures from

earlier commitments which are in fact subject to its strin-

gent conditions. What the Fifth Circuit failed to con-

sider, however, is that so long as the national standards

are being attained and maintained, there is no basis in

the present Clean Air Act for foreing further technolog-

ical developments. Agency review assures that vari-

ances granted under § 110 (a)(3) will be consistent with

the § 110 (a)(2)(A) requirement that the national stand-

ards be attained as expeditiously as practicable and main-

tained thereafter. Thus § 110 (a)(3) variances ex hy-

pothesi do not jeopardize national standards, and the

technology-foreing character of the Amendments is no

reason at all for judging them under the provisions of

$ 110 (f).

The First Circuit also rejected the Agency’s contention

that variances could be handled under the revision pro-

cedure, supra, at 10-11, but it did so for reasons different

from those relied upon by the Fifth Circuit" It stated:

“. . : Had Congress meant [§ 110 (f)] to be followed

26 The First Circuit’s decision was strongly*criticized in Comment,

Variance Procedures under the Clean Air Act: The Need for Flexi-

bility, 15 Wm. & M. L. Rev. 324 (1973). The Comment was

especially concerned with the conclusion that § 110 (f) was the ex-

elusive postattainment variance mechanism, focusing on this conelu-

sion’s lack of support in the statute and legislative history, on its

inconsistency with other provisions of the statute, and on its untoward

results. A second commentator, writing prior to any of the cir-

cuit court decisions, reached conclusions similar to those we today

express. Luneberg, Federal-State Interaction under the Clean Air

Amendments of 1970, 14 B.C Ind. & Com, L. Rev. 637 (1973) (at

the time he wrote this artiele, Mr. Luneberg was an attorney

in the Enforcement Division, Environmental Protection Agency,

Region 1),

Loge gag

30 TRAIN v. NATURAL RESOURCES DEF. COUNCIL

only if a polluter, besides violating objective state

requirements, was shown to be preventing mainte-

nance of a national standard, it would have said so.

To allow a polluter to raise and perhaps litigate that

issue is to invite protracted delay. The factual

question could have endless refinements: is it the

individiial variance-seeker or others whose pollution

is preventing insintenaner of standards? See e. g..

Getty Oil Company v. Ruckelshaus, 342 F. Supp”

1006 (D. Del. 1972). remaniied with directions, 467

F. 2d 349 (3rd Cir. 1972), . . . where Getty raised

this issue in various forums.” 478 F. 2d, at 886.

‘Respondents also stress this argument: that treating

variances as revisions rather than as postponements would

invite litigation. would be impracti¢al in application, and

would therefore result in degradation of the environment.

Aside from the facet that it goes mofe to the wisdom of

what Congress has chosen to do than to determining

what Congress has done, we believe this argument to be

overstated. As made clear in the Getty case cited by the

First Circuit. a polluter is subject to existing requirements

until such time as he obtains a variance, and variances

are not availabie under the revision authority until they

have been approved by both the State and Agency.

Should either entity determine that granting the vari-

ance would prevent attainment or maintenance of na-

tional air standards, the polluter is presumably within his

rights in seeking judicial review. This litigation. how-

ever, is carried out on the polluter’s time, not the public's,

for during its pendeney the original regulations remain

in effect. and the polluter’s failure-to comply may subject

him to a variety of enforeement procedures.”’

2° Emission limitations contained in an implementation plan may

be enforced in several ways. Aside from whatever state procedures

are available under the plan, § 113 of the Clean Air Act, as added, S4

Stat. 1686, 42 U.S. C. § 1857¢-8, imposes a duty of enforcement on

TRAIN v. NATURAL RESOURCES DEF. COUNCIL «31

We are further impressed that the Agency itself has

displayed no concern for the purported administrative

difficulty of treating variances as revisions. Ordinarily.

an agency may be assumed capable of meeting the re-

sponsibilities whith it contends are placed upon it. Were

respondents able to make a contrary showing, that fact

might have some weight in interpreting Congress’ intent,

although we would doubt its relevance unless Congress

were also shown to have been aware of the problem when

it drafted legislation which otherwise is consistent with the

Agency's contentions. Respondents have made no such

showings. The judgments which the Ageney must make

when passing on variances under § 110 (a)(3) are whether

the ambient air complies with naticnal standards, and if

¢0 whether a proposed variance would cause a plan to

fail to insure maintenance of those standards. These

judgments are little different from those which the

Ageney had to make wher: it approved the mitidl plans

into which respondents seek to have the States frozen.

In each instance the Ageney must measure the existing

level of pollution, compare it with the national standards,

and determire the effeet on this comparison of specified

emission modifieations.” That Congress is of the opinion

the Agency. The Ageney may isstie Bompliance ofders (the vie-

lation of which carries severe monetary penalties), er it may bring

civil actions for injunctive relief In addition, $304 of the Clean

Air Act, as added, 84 Stat. 1706, 42.1 8, © § IS57h-2. provide-

for estizen sitits against anv person alleged to be in violation of an

emission limitation. and against the Administrator where he i alleged

to have failed to perform_a nondiscretionary act. Plaintiff in such

actions may be awarded attorneys fees § 304 1d)

** We recognize that numerous applications for changes of a specsfit

nature have a potential for ereating « different kind of problem from

that posed by the formulation of general regulations Such a prob-

lem would arise when the’grant of a variance to one source would

not affect national standards, but the simultaneous or subsequent

grant of similar variances to similar sources could result in the plan's

4

,

382. TRAIN vs NATURAL RESOURCES DEF. COUNCIL

that the Agenev can feasibly and reliably perform these

functions is manifest not only im its 1970 legislation, but

also in a 1974 amendment designed to conserve energy.

The amendment provides that the Agency should report’

to each State on whether its implementation plan could

be revised in relation to fuel burning stationary sources,

“without interfering with the attainment and mainte-

nance of any national ambient air quality standard.”

$110 (a)(3)( B)*6f the Clean Air Act, as added, 88 Stat.

256, 42 F&F. S. CL. § 18d57e—5 (a) (3)(B). ( Emphasis

added. )

y

Respondents have put forward several additional argu-

ments which have not been specifi ‘ally adopted by any

court of appeals. The first.is bused on legislative history.

Respondents focus on the fact that while the Conference

Committee accepted the Senate's concept of a three-year

maximum deadline for attainment of national standards,

it also strengthened the Senate's provision by specifying

that attainment should be achieved ‘as expeditiously as

practicable... but in no case later than three vears.” (Em-

phasis added.) Respondents further make the contention

failure to msure the attainment and maintenance of the standards.

As we have noted in the text, however, the agency charged with

@e administration of the Act. and made ultimately responsible for

the attainment and maimtenance ‘of the national standards, does

not view this problem as anywhere near insurmountable. Vari-

ances under § 110 (a)(3) cannot be granted until first the State,

and then the Ageney, have determined that they will not jeopardize

the standards. We eannot and do not attempt to foresee, at this

stage in the administration of the statute, all of the questions,

say nothing ofthe answers, that may arise in the allocation of

a limited aber of available variances. The fact that the inter-

pretation placed on the section by the Agency may on oceasion

require administrative flexibility and ingenuity to a greater degree

than would a more rigid alternative is not of course a reason for re-

jecting the Ageney’s otherwise reasonable construct ion.

“PRAIN ve) NATURAL RESOURCES DEF COUNCIL 33

that the Conference Committee altered the Senate's ver-

sion of the postponement provision to “provide that a

source’s attempt to delay comphance with ‘any require-

nent oof a State Plan would be considered a ‘post pone-

ment! Brief for Respondents 36. According to re-

spondents the latter change” Was necessary to conform”

the postponement: provision With the Conference Com-

mittee’s “as expeditiously as practicable” requirement."

“Compare the language of § 110 (1), pp. IS-14. supra, with that of

the Senate's proposed $ TEC), no Is. supra. In hight of our tex-

tual comments concerning respondents’ interpretation of the Confer-

ence Committee's changes, we think that a considerably simpler and

more satistvetory explanation is available. The most substantial

difference between the two, other than the forum for decision, is

that $110 (2) as triggered by an appheation filed prior to the date ot

compliance with any requirement of a plan. whereas $111) as

triggered by a filing at least Year prior to the deadline for attam-

ment. The Conference Committee's change ean be quite reasonably

Viewed as a recognition that. the eXtreme circumstances justitving

breach of the national standards could be present with respect to a

requirement taking effect either before or atter the attamment date.

Such might occur, for example, a technological difliculties. should

prevent required preattainment construction of necessary abatement

equipment, or if increasing population density should) eventually

cause more stringent limitations to be hecessary tO maintain the

national standards. Onee it is determined that postponements should

be available with regard to any requirement: of a Man. and not

merely to those tied directly to the attainment date. then the change,

from “region” and “person or persons” to “any stationary source

or class of moving sources” follows rather naturally. The Jatter

phrase is far more convenient for use in conjunction with “any re-

quirement of an apphecable implementation plan.” vet is not signifi-

cantly more or less inclusive than the former (while the final version

requires source-by-source postponements, and aloes not provide for

rehiet with respect to an entire region, Naut guiremiem Was In any

event impheit in) proposed § 111 (f)(4)'S-conditions. for granting

reliel; and while “clas- of moving sources” ts less inclusive than “per-

son or persons,” the restriction is not only sensible in light of the

small emissions from any single moving source. but it also has no

discernible relevance to our inquiry).

34. TRAIN vo. NATURAL RESOURCES DEF. COUNCIL

The argument is that because any variance would delay

attuinnient of national standards bevond the date pre-

viously eonsidered the earliest: practicable. and that be-

eause the Act requires attainment as soon as practicable.

vny variance must therefore be treated as a post

ment. “Phis vrgument is not) persuasive, for multiple

reasons. 7

First. this interpretation of the Conterence Committee's

work finds no specifie support im legislative documenis

or debates. This is true despite the significance of the

Change which, under respondents’ interpretation, was

made-—the expansion of $110 (f) from a safety valve

against mandatory deadlines into the exclusive mecha-

erases

prenre

nism by which a State could make even minor modifiea-_

tions of its emission limitations mix. Respondents’

‘interpretation arises instead from their own reading of

the statute and inferences as to legislative purpose.

Second, as we have already discussed, and contrary to

respondents’ contention, $110 (f) simply does not state

that any defertal of compliance with “any requirement”

of a state plan “would be considered a postponement.”

Rather, it merely sfates that 2 postponement may be

sought with respect to any source and any requirement.

Third, respondents’ reading equates “practicable” in

S110¢ay(2r-A) with $110 (f)'s “essential to national

security or to the public health or welfare.” Yet plainly

there could be many eircumstances in which attainment

in lessthan three years would be impracticable, and thus

Mot required, but in which deferral could not possibly be

justified as essential to the national security. or_publie

health or welfare.” Fourth, the statute requires only

” Whether the Georgia variance provision meets the practicability

standard with regard to preattainment variances is a different issue.

It authorizes variances on the basis of conditions bevond the con-

trol of the persons mvolved, on the basis of circumstances which

would render stiict compliance “unreasonable, unduly burdensome,

ae

7

TRAIN ». NATURAL RESOURCES DEF COUNCIL — 35

attainment as expeditiously as practicable. not aitain-

ment 2s expeditiously as was thought practicable when

the initial nuplementation plan was devised. Finally,

even if respondents’ argument had force with regard to

a preattainment variance, it would still be of no rele-

vance whatsoever onee the national standards were

attained. A varianee which does not compromise

national standards that have been attained does no

damage to the congressional goals of attaining the stand-

ards las expeditiously as practicable and maintaining

them thereafter,

The last of respondents’ arguments which merit. our

attention is related to the Fifth Cireuit’s conelusion

that revisions are restricted to general requirements, and

that all specific modifications must therefore be funneled

through the postponement. provision. Respondents go

one step further and contend that the revision authority

is limited not only to general changes, but to those which

also are initiated by the Ageney in order to “accelerate

abatement or attain it in greater concert. with other

national goals.” Brief for Respondents 26. This highly

restrictive view of $110 (a)(3) is based on £§ 110 ¢a)

(2)( 11). which specifies that to obtain Ageney approval

a State's plan must provide a mechanism for revision to

take account of revised national standards, of more ex-

peditious methods of achieving the standards. and of

Agency determinations that a plan is substantially

inadequate.

The argument is specious. Section 110 (a)(2)(H)

or impractical,” on the basis of findings that ‘strict comphance

would result in substantial curtailment or closing down of business

operations, and beeause alternatives are not yet available. See

n. 6, supra. Respondents, however. did not attack the Georgia

variance procedure on this more limited ground, and we need not

consider the issue.

31 See n. 2, supra.

360 TRAIN v. NATURAL RESOURCES: DEF. COUNCIL

does nothing more than impose a minimum requirement

that state plans be capable of such modifications as are

necessary to meet the basic goal of cleansing the ambient

air to the extent necessary to protect public health, as

expeditiously as practicable within a three-year period.

The section in no way prevents the States from also

pernitting ameliorative revistons which do not compro-

mise the basic goal. Nor does it. by requiring a par-

ticular type of revision, preclude those of a different type.

As we have already noted. $110(a)(3)° requires the

Ageney to approve “any revision” which is consistent

with $110(a)(2)’s minimum standards for an initial

plan, and which the State adopted after reasonable pub-

hie notice and hearing; no other restrictions whatsoever

are placed on the Agency's duty to approve revisions.**

VI

For the foregoing reasons. the Court of Appeals for the

Fifth Circuit was in error when it concluded that the

postponement provision of §110(f) is the sole method

by which may be obtained specific ameliorative m odifica-

tions of state implementation plans. The Agency had

properly concluded that the revision mechanism of § 110

(a)(3) is availavle for the approval of those variances

which do not compromise the basic statutory mandate

that, with carefully circumscribed exceptions, the national

primary ambient air standards be attained in not more

*? Respondents also claim that their view of revisions is supported

by the context in whieh the term is used in other parts of the amended

Act. We disagree. Two instances, §§ 110 (2)(2)(A) (i) and 110

(c)(3), are references to the revision mechanism required by

$110 (a) (2)(H), but do not suggest that there may not also be

other types of revisions. The other two, $$ 110 (a) (1) and 110 (d),

are entirely neutral both in terms of whether revisions are specific

or general and in terms of whether they may occur independently of

§ 110 (2) (2) (H)

x

Nee

TRAIN v. NATURAL RESOURCES DEF. COUNCIL 37

thar three vears. and maintained thereafter. To. the

extent that the judgment of the Court of Appeals for the

Fifth Cireuit was to theecontrary. it is reversed and the

cause is remanded for further proceedings consistent with

this opinion.

Mr. Justice DouGias disserits.

Mr. Justice Powenn took no part in the consideration

or decision of this ease.