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Vermont v. Thomas

Citation: 18 ELR 21207
No. No. 87-4119, 850 F.2d 99/27 ERC 2177/(2d Cir., 06/23/1988)

The court holds that current Clean Air Act (CAA) regulations enacted pursuant to CAA § 169A do not encompass federally enforceable measures to alleviate "regional haze," and thus the Environmental Protection Agency's (EPA's) decision to take "no action" on those portions of Vermont's state implementation plan (SIP) addressing regional haze does not violate the CAA or EPA's regulations. Section 169A designates certain national and international parks and wilderness areas as "Class I federal areas," and directs EPA to promulgate regulations protecting visibility in these areas. EPA issued regulations in 1980 requiring that states with Class I areas include in their SIPs a strategy to remedy existing and prevent future impairment of visibility in those areas. Vermont's SIP requested that EPA disapprove and revise the SIPs of eight upwind states and require SIP amendments of four states whose sulfate emissions contribute to Vermont's regional haze problem. The court holds that EPA's decision to take no action on Vermont's SIP does not violate the 1980 § 169A regulations. The 1980 regulations, as clarified by the preamble, adopted a phased approach to visibility problems that anticipates but does not authorize states with Class I areas to implement regional haze measures. That first phase, adopted in 1980, addressed "plume blight" only, impairment that can be traced to a specific facility or a small group of facilities. The court holds that Vermont's proposed SIP is not independently subject to federal enforcement under the CAA, because without EPA rulemaking on regional haze Vermont's plans are outside the scope of the regulations. The court notes that Vermont may file a petition for rulemaking under the Administrative Procedure Act and request EPA to promulgate regulations on regional haze.

Counsel for Petitioners
J. Wallace Malley Jr., Ass't Attorney General
Pavilion Office Bldg., 109 State St., Montpelier VT 05602
(802) 828-3171

Armond Cohen, Diane A. Schachter
Conservation Law Foundation of New England
3 Joy St., Boston MA 02108
(617) 742-2540

Counsel for Respondents
Gregory B. Foote
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20024
(202) 475-8040

Roger J. Marzulla, Arthur E. Gowran
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2617

Before Meskill and Mishler,[*] JJ