On February 1, 1982, a scant 11 months before the deadline by which all areas in the country except those with severe automobile-related pollution problems are to meet federal clean air standards, the Second Circuit Court of Appeals upheld the Environmental Protection Agency's (EPA's) conditional state implementation plan (SIP) approval policy.¹ This ruling relieved EPA of its obligation to assume the regulatory responsibilities of those states that had not satisfied the rigorous planning requirements imposed by Congress in the 1977 Amendments to the Clean Air Act for "nonattainment areas", i.e., those regions still in violation of national ambient air quality standards (NAAQS), imposed by Congress in the 1977 Amendments to the Clean Air Act.² In this respect, the court's decision was in accord with one reached several months earlier by the Fifth Circuit.³ However, addressing an issue not raised in the Fifth Circuit's opinion, the Second Circuit refused to allow EPA, as a consequence of conditional approval, to lift the statutory moratorium on construction of major new or modified sources in nonattainment areas without adequate state plans. The court struck a delicate balance between the practical limits on the abilities of federal and state governments to carry out the difficult cooperative assignment given them by the Clean Air Act, and the clear and stern congressional directives forcing EPA and the states to act quickly to clean up areas with unhealthy air.

Conditional approval is an administrative expedient developed by EPA to keep the nonattainment area SIP revision process from breaking down. The 1977 Amendments required the states to devise, by July 1, 1979, new plans for their nonattainment areas that would lead to attainment of the NAAQS by specific future deadlines or face both a moratorium on major new construction in those areas and the threat of the loss of major federal grants. The Act, as amended, also required EPA to develop the plans itself if states failed to do so. Because nonattainment areas are numerous, including virtually every major city and industrial area in the country, and their air pollution problems are among the most difficult to combat,⁴ the SIP revision process is an enormous undertaking. The threat of sanctions drove states to prepare revisions, but the process fell behind schedule and the initial revisions were generally inadequate. As the July 1, 1979, deadline passed, EPA found itself facing the doubly grim prospect of cutting off growth in urban centers across the country and of having to take over SIP development responsibilities on a massive scale. It sought to avoid these consequences and to buy time for the states to upgrade their plans by granting conditional approval to state-submitted plans that substantially satisfied the requirements of the 1977 Amendments.⁵ The recent court of appeals decisions shore up the shaky legal foundation of the conditional approval policy and keep the SIP revision process moving.