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Sierra Club v. EPA

Citation: 6 ELR 20669
No. No. 74-2063, 540 F.2d 1114/9 ERC 1129/(D.C. Cir., 08/13/1976)

The court upholds EPA's regulations for the prevention of the significant deterioration of air quality. The regulations, issued pursuant to Sierra Club v. Ruckelshaus, 2 ELR 20262, aff'd, 2 ELR 20656 (D.C. Cir.), 3 ELR 20684 (U.S.), provide for three classes of allowable incremental increases in particulates and sulfur dioxide in areas with air cleaner than the national secondary standards, and employ economic and social considerations, as well as air quality factors, to establish the definition of "significant." Enforcement is to be achieved through preconstruction review of new sources and emission limitations based on best available control technology for changes in existing emission sources. The regulations allow states to propose alternative methods of preventing significant deterioration in their state implementation plans. To withstand judicial review under the arbitrary and capricious standard, EPA's regulations must merely have a rational basis. The court reaffirms the decision in Sierra Club v. Ruckelshaus, supra, finding support for a nondeterioration requirement in both administrative interpretation and the legislative history. That the EPA Administrator "shall approve" state implementation plans under § 110, which does not mention a nondegradation requirement, does not vitiate the Act's policy. Similarly, the Supreme Court's decisions in Train v. Natural Resources Defense Council, 5 ELR 20264, and Union Electric Co. v. EPA, 6 ELR 20570, are not controlling, since Train was concerned with individual variances in air quality areas below the national standards and Union Electric dealt with EPA's mandatory approval of state plans irrespective of economic feasibility considerations. Nor does the Energy Supply and Environmental Coordination Act of 1974 provision allowing stationary sources to burn coal eliminate the Clean Air Act's nondegradation policy. EPA's exclusion of photochemical pollutants from the regulations is not arbitrary, since it does not possess the technology or modeling techniques to regulate these emissions on a case-by-case basis. In view of the lack of quantitative relationships between air quality deterioration below secondary levels and adverse effects on the public health, EPA's decision to incorporate economic and social considerations was within its discretion in policy matters. In addition, EPA acted reasonably in disregarding pollution increases after the regulations' putative 1972 effective date in measuring allowable increments after the regulations' 1975 effective date. Furthermore, EPA's use of New Source Performance Standards rather than Best Available Control Technology is rational and will not necessarily reduce air quality, since states are free to choose an appropriate mix of emission limitations to achieve national ambient standards. Similarly. EPA's limitation of preconstruction review to 19 specified source categories rationally protects air quality; total air deterioration limits must be based on unspecified categories as well. EPA need not predicate its definition of "significant" on empirically demonstrated adverse air effects, nor on precise modeling techniques. The court holds as not ripe for review the question of whether EPA redesignation of Indian and federal lands may illegally hinder economic development, since no such lands have yet been redesignated. Finally, the court upholds the regulations' constitutionality against allegations that they violate the Commerce Clause, violate due process, constitute a taking, infringe on states' rights under the Tenth Amendment, and are unconsitutionally vague.

Counsel for Petitioner Sierra Club
Bruce J. Terris
Nathalie V. Black
John D. Hoffman
H. Anthony Ruckel
1908 Sunderland Pl., NW
Washington DC 20036
(202) 785-1992

Counsel for Petitioner New Mexico
Tony Anaya, Attorney General
Henry Charles Griego
Robert A. Engel, Special Asst. Attorney General
State Capitol
Santa Fe NM 87503
(505) 827-2844

Counsel for Petitioner American Petroleum Institute
John J. Adams
Hunton, Williams, Gay & Gibson
1730 Pennsylvania Ave., NW
Washington DC 20006
(202) 833-1680

Counsel for Petitioner Montana Power Co.
Francis M. Shea
Shea & Gardner
734 15th St., NW
Washington DC 20005
(202) 737-1255

Counsel for Respondent
Richard J. Denney, Jr., Asst. General Counsel
Environmental Protection Agency
Washington DC 20460
(202) 755-0744

Peter R. Taft, Asst. Attorney General
Edmund B. Clark
Earl Salo
Erica L. Dolgin
Department of Justice
Washington DC 20530
(202) 739-2792

Before WRIGHT, ROBINSON, and WILKEY, Circuit Judges.

Circuit Judge WILKEY concurs in the result only.