Circuit Courts Endorse Conditional SIP Approval; Connecticut's Construction Ban Restored

P. D. Reed

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 which 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 strucke 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 which 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.

Despite the clear practical advantages of conditional approvals, there is no obvious support for the policy in the complex SIP provisions of the Act. Environmental groups, a city, and industry petitioners challenged the conditional approval of several SIPs in the courts. Five opinions addressing conditional SIP approval have been issued,⁶ but only the Fifth and Second Circuits squarely faced the question of the legality of the policy.Both upheld it. However, by loosening the interim deadlines for SIP revisions they only defer the day of reckoning; the next deadlines for attainment are looming ever closer. And that reckoning may be severe unless Congress again pushes back the attainment dates or modifies the nonattainment area SIP requirements.

Background

The 1970 Amendments to the Clean Air Act called on each state, within nine months of the promulgation of an NAAQS, to adopt and submit for EPA approval an initial SIP, a plan for the "implementation, maintenance and enforcement" of those standards.⁷ Section 110(a)(2) lists the features which a SIP must include to be approved by EPA.⁸ The SIP process is the key link between the federal and state air pollution control machinery. If the process functions as Congress envisioned, federal air quality standards and attainment deadlines mesh smoothly with state emission control programs to attain and maintain levels of air quality which will protect public health and welfare. Where the linkage breaks down at the state level, EPA is required to promulgate and carry out SIPs or portions thereof.⁹

Attainment of the initial set of NAAQS was required by mid-1977. When that deadline passed and many areas of the country remained "nonattainment," even where [12 ELR 10056] SIPs had been implemented, Congress moved the deadlines back to 1982 or 1987.¹⁰ The price it exacted for the extension was revision of all SIPs to impose stringent new control requirements for all nonattainment areas.

The nonattainment area SIP revision program has several parts. The first component is a process for identifying nonattainment areas. Second is the requirement that states either adopt SIP revisions or accept a ban on major new construction in nonattainment areas. Third, the 1977 Amendments added a new Part D¹¹ to the statute, setting out in some detail what the nonattainment area SIP revisions had to include. As a result, the new plans are often referred to as "Part D SIPs." Fourth, the Amendments specified incremental deadlines for state adoption and federal review and promulgation of the revised plans. Fifth, the Act as amended again requires EPA to promulgate plans if the states fail to make adequate revisions in timely fashion. Finally, the Amendments empower EPA to impose funding cuts on states which do not develop adequate Part D SIPs.

To target the Part D SIP process, the 1977 Amendments mandated a rapid, formal identification of those areas in each state where air quality was worse than allowed by the NAAQS.Section 107(d)¹² required states to submit lists of nonattainment areas of EPA, which was then to promulgate its own list of such areas, with revisions if it deemed necessary, by February 1978.¹³

The requirement that states revise their SIPs for the areas identified as nonattainment is spelled out, somewhat indirectly, in § 110(a)(2)(I) of the Act.¹⁴ Section 110(a)(2) does not explicitly require that all SIPs include Part D provisions for nonattainment areas. Instead it requires them to include new source permit programs¹⁵ and appears to give the states a choice of banning major new sources and modifications or preparing a full Part D SIP.¹⁶ However, a state choosing not to submit a Part D SIP should also lose substantial federal funding.¹⁷ Thus, while the Part D SIP can be viewed as a voluntary addition to the basic SIP,¹⁸ in practical terms it is virtually mandatory.

The substantive requirements for nonattainment areas SIPs are detailed in Part D. Section 172(a)¹⁹ requires that the plans demonstrate a strategy for attainment of primary air quality standards by December 31, 1982 or, under certain circumstances with respect to ozone and carbon monoxide, December 31, 1987.Section 172(b)²⁰ lists eleven essential substantive and procedural components of nonattainment area SIP revisions²¹, including a new source permit program the details of which are spelled out in § 173.²²

EPA's review of Part D SIPs is governed by the procedures and schedule established in the 1970 Amendments. The 1977 Amendments direct states to "adopt and submit" SIP revisions for their designated nonattainment areas by January 1, 1979,²³ Although there is some confusion on this point, § 110(a)(2) governs the EPA review, requiring the Agency to "approve or disapprove" the Part D SIP submission within four months of submittal.²⁴ Whether or not this directive can be read to allow conditional approval instead of a simple yes or no determination [12 ELR 10057] is one of the issues at the heart of the conditional approval cases.

The 1970 provisions for federal promulgation of SIPs when states fail to develop plans satisfying the requirements of the Act also apply to Part D SIP revisions. Section 110(c)(1)²⁵ describes the conditions under which the Administrator is to step in and promulgate federal SIP revisions, thought it is not facially clear that Part D SIP revisions are subject to this scheme. It directs the Administrator to:

promptly prepare and publish proposed regulations setting forth an implementation plan, or portion thereof, for a State if —

(A) the State fails to submit an implementation plan which meets the requirements of this section,

(B) the plan, or any portion thereof, submitted for such State is determined by the Administrator not to be in accordance with the requirements of this section, or

(C) the State fails, within 60 days after notification by the Administrator or such longer period as he may prescribe, to revise an implementaiton plan as required pursuant to a provision of its plan referred to in subsection (a)(2)(H)….

… The Administrator shall, within six months of the date required for submission of such plan (or revision thereof), promulgate any such regulations unless, prior to such promulgation, such State has adopted and submitted a plan (or revision) which the Administrator determines to be in accordance with the requirements of this section….

The obligation to prepare a federal SIP is triggered by any conceivable type of SIP deficiency — no submittal, a submittal that is inadequate, or a state's failure to revise when notified of the inadequacy of an existing SIP. The eadline for federal promulgation is short — six months after the date the submittal was due. The only flexibility apparent in the section is that the Administrator can decide how much time to give a state to revise a SIP determined to be inadequate under § 110(a)(2)(H).²⁶ But Part D SIP revisions are distinct from section 110(a)(2)(H) revisions, so it would appear that this single source of discretion to extend the six-month deadline is not available for Part D SIPs.

Finally, the 1977 Amendments provide additional sanctions which EPA may impose on states which drag their feet in developing Part D SIPs. Section 176²⁷ provides that the Administrator shall cut off Clean Air Act and highway grants for areas which are nonattainment for automobile-related pollution, if the SIP revision deadline has passed and he or she determines that the state has not submitted an adequate Part D SIP for the area or made reasonable efforts to submit one.

Implementing the Part D Program

The Part D SIP revision process failed to comply with the rigorous timetable set out in the Act. By skirting its notice and comment responsibilities under the Administrative Procedure Act,²⁸ EPA met the March 5, 1978 deadline for promulgation of its list of nonattainment areas, although it continued to modify the list for months afterward.²⁹ Most states failed to meet the January 1, 1979 deadline for submitting Part D SIPs, although the majority had submitted plans within eight months of that deadline.³⁰ However, these plans typically were incomplete and inadequate in a variety of ways, necessitating a long series of modifications and additions eve before EPA could deem the plans ready for decision.³¹ As one reviewing court noted, "[p]erhaps the most striking feature of this litigation is the extent to which EPA's administrative processing of Illinois' and Indiana's Part D SIP's has diverged from the procedure contemplated by the Clean Air Act."³²

When the July 1, 1979 deadline passed with only one state having an approved Part D SIP revision,³³ EPA announced its condition SIP policy:

For the purposes of determining whether a SIP satisfies the requirements of Part D, EPA intends to grant conditional approvals under certain circumstances …. Where a plan has been revised so as to be in substantial compliance with the requirements of Part D, and the state provides assurance that any remaining minor deficiencies will be remedied within a short period, imposition of the restriction on new sources within that period would not serve the congressional purpose. Therefore, under such circumstances, EPA interprets the Act to permit the plan to be conditionally approved as satisfying Part D requirements.

If a state submits a SIP containing minor deficiencies, and the state provides assurances that it will submit corrections on a specified schedule, EPA will conditionally approve the plan. The EPA Regional Office will negotiate with the state on an acceptable schedule prior to final action. A conditional approval will mean that the restriction on new sources will not apply unless the state fails to submit corrections by the specified date, or unless the corrections are ultimately determined to be inadequate.Conditional approval will not be granted without strong assurances from the appropriate state officials that the deficiencies will be corrected on schedule.³⁴

EPA made rather heavy use of the new policy.³⁵

Conditional Approval Litigation

The conditional approval policy, as applied to several [12 ELR 10058] Part D revisions, was challenged in several federal courts. The first opinions issued dealt primarily with jurisdictional matters,³⁶ but dicta in one district court decision cast doubt on the legality of the policy.³⁷ More recently, in City of Seabrook v. EPA³⁸ and Connecticut Fund for the Environment, Inc. v. EPA,³⁹ the Fifth and Second Circuits decided that the policy does not violate the Clean Air Act. The opinions sort out a number of questions concerning the Part D SIP revision process left open by the Act, but also raise new questions since they employ different reasoning and disagree on whether conditional approval serves to lift the construction moratorium.

The Fifth and Second Circuits faced similar challenges to the conditional approval policy. Both rejected a two-part argument that the Act bars conditional approval: first, § 110(a)(2) clearly directs the Administrator to "approve or disapprove" Part D SIP submittals within four months and does not mention "conditional approval," and second, § 110(c) gives the Administrator only one option concerning a SIP provision which has been disapproved — virtually immediate promulgation of a federal SIP provision.⁴⁰ However, the two courts' analyses of these claims differed dramatically.

As to whether the Act gives no choice other than approval or disapproval, the Fifth Circuit struggled to find an answer in the statute, while the Second Circuit found one with relative ease in the common law. In City of Seabrook, the Fifth Circuit admitted that the more persuasive interpretation of §§ 110(a)(2) and 110(c) would bar conditional approval, but felt bound to uphold any reasonable EPA interpretation.⁴¹ The Agency argued that although § 110(a)(2)(I), which establishes the new Part D SIP requirement, is distinct from § 110(a)(2)(H), which provides for revision of existing SIPs under certain circumstances, the provisions which give EPA flexibility in dealing with paragraph (H) revisions also apply to paragraph (I) revisions.⁴² While this reasoning requires a strained construction of the language of the sections, the court concluded it is not inconsistent with the statute. It found added support for this interpretation in the fact that it serves to maintain the intended division between the federal and state governments of responsibility for implementing the Act.⁴³

In contrast, the Connecticut Fund the Second Circuit simply found that authority to approve conditionally is inherent in EPA's authority to approve or disapprove.⁴⁴ In other words, the court ruled that as a matter of common law, the power to approve implies the power to approve conditionally. In addition, it noted that the instant case emphasizes that the "need for flexibility in the administration of a statute whose provisions have been described as 'virtually swim[ming] before one's eyes' … should not be underestimated."⁴⁵

The two courts also relied on different rationales for rejecting the argument that conditional approval is inconsistent with EPA's duty under § 110(c) to promulgate its own Part D SIP provisions if the state submittals are inadequate. The Fifth Circuit concluded that Congress could not have intended to create so inflexible a mandate for federal action when deadlines were missed, in part because of the intended federal/state division of labor.⁴⁶ Further, a literal reading of the provision would result in an often impossible schedule for federal action requiring EPA to propose and, sometimes after new public hearings, to promulgate SIP revisions within two months.⁴⁷ The Second Circuit, on the other hand, held that while § 110(c)(1) might give a district court jurisdiction to compel EPA to carry out its nondiscretionary duty to promulgate a replacement SIP where a deadline has passed without an adequate submission having been received, once the submission has been conditionally approved the circuit courts can only overturn that action for violations of the Act's substantive requirements.⁴⁸ Both courts showed some concern that the delays resulting from conditional approval could result in violation of the 1982 (or 1987) deadline for attainment of the NAAQS, but neither found evidence of interference with timely attainment in the records in hand.⁴⁹

In upholding the conditional approval policy, the two courts also left EPA substantial flexibility in applying the policy's three basic criteria for conditional approval: (1) [12 ELR 10059] the revision submitted must be in substantial compliance with the requirements of Part D (only "minor" deficiencies), (2) the state must give "strong assurances" that the deficiencies will be corrected on schedule, and (3) those corrections must be made in a "short period".

The courts did not look closely into the application of the criteria, appearing content to defer to EPA's judgment in the matter absent evidence that timely attainment was jeopardized. The Second Circuit skimmed over the issue of compliance with the conditional approval policy, apparently because petitioners' challenge was imprecise and they did not allege that an attainment deadline violation would result.⁵⁰ The Fifth Circuit held that EPA reasonably concluded that the deficiencies in the Texas submittal were minor, seemingly because the SIP, with conditions, was adequate to demonstrate timely attainment with the air quality standards.⁵¹ It also held that petitioners failed to carry their burden of showing that the 13 months allowed the state to remedy all the deficiencies was not a "short period," suggesting again that they would have had to show that the delay would interfere with timely attainment.

In summary, both courts upheld the conditional approvals even though they resulted in departures from the SIP submission, review, and promulgation schedule of the Act. They both held that such departures were not fatal so long as the record does not indicate that they will interfere with attainment by the statutory deadlines. The Fifth Circuit, perhaps concerned about vitiating entirely the congressional mandate embodied in the schedule, also ruled that the statute requires that the SIP revisions conditionally approved have been submitted to EPA before the July 1, 1979 deadline.⁵² By countenancing substantial deviation from the rigid statutory schedules and requiring those challenging the conditional approval to show that it would result in violations of the attaiment deadline, the courts allowed substantial flexibility in the Part D SIP revision process.

EPA did not fare as well on the question of the effect of conditional approval on the construction moratorium, however. The Fifth Circuit did not discuss the effect of the conditional approval on the construction moratorium in Texas, but the Second Circuit balked at allowing conditional approval to lift the construction moratorium. While upholding the Agency's power of conditional approval, it ruled that that power could not be used to circumvent substantive requirements of the Act.⁵³ Finding that the construction ban has an important substantive function — restraining emission increases in nonattainment areas until plans which will achieve attainment are in place — it refused to allow the abandonment of that goal as a result of conditional approval.⁵⁴ It found that EPA's own interpretation and the legislative history of the Act show that the moratorium is "automatic and mandatory" until SIPs fully complying with Part D are in place, and is not a sanction to be imposed or withheld at EPA's discretion.⁵⁵ Therefore, only when an adequate Part D SIP revision has been given full and final approval can the moratorium be lifted.

Conclusion

The decisions in City of Seabrook and Connecticut Fund for the Environment were greeted by an audible sigh of relief in the offices of EPA and state agencies around the country. A contrary result would have given EPA an unmanageable regulatory and enforcement burden rendering futile years of effort to bring nonattainment areas into compliance. The Second Circuit's ruling that EPA has "inherent" authority to grant conditional approval, though plucked, to an extent, from out of the blue, seems a reasonable conclusion in this context. However, the court's reliance on the common law rather than the language of the statute to find authority for conditional approval might prove troublesome if the precedent is extended to other processes through which federal programs are delegated to states or state programs approved by EPA. Arguably, it might even support use of conditional approval of activities such as construction of new sources of water pollution or licensing of nuclear reactors, for which advance certification of compliance with environmental laws through a permit or similar process would otherwise be required. If and when the Second Circuit's rationale for conditional approval reappears in other contexts, a more painstaking look at the legislative intent and overall regulatory program will be appropriate.

The Second Circuit's reasoning is a model of judicial craftsmanship in comparison to the Fifth Circuit's extraordinary efforts to conform the same result to the facial requirements of the Act. The court's heavy reliance on an obscure subsection of § 110(a)(2)(H) is implausible and unfortunately led to even further contortions of the statute in order to achieve consistency. Hopefully this dictum will not be resurrected in other contexts to further complicate the application of the complex SIP provisions of the Clean Air Act.

The courts were reasonable in grounding their decisions on the need to respect Congress' careful division of regulatory authority between federal and state governments. While Congress may have foreseen the dilemma in which the labyrinthine nonattainment provisions of the Act would place the implementing agencies, it could not conceivably have intended EPA to prepare and enforce federal SIPs in every state which failed to revise its plan on time. Federal SIP promulgation has been shown not to work on a small scale, and it is administratively impossible on a large scale. The decisions preserve federal promulgation as a last resort should states fail to finish [12 ELR 10060] the partially completed job of upgrading SIPs for nonattainment areas. Yet by turning to implicit congressional intent to achieve this end, the courts have essentially unmoored EPA and the states from the strilngent interim deadlines and procedural requirements set out in § 110. EPA's handling of conditional approvals, because it is not addressed in the Act, will be very difficult to police in the future.

To an important extent, though, the incentive to carry out the Part D process speedily is preserved by the Second Circuit's reinstatement of the new source construction moratorium in Connecticut. The court's strict application of the moratorium seems consistent with the letter and spirit of the 1977 Amendments, and its wisdom is borne out by the fact that the extended interim deadlines incorporated in the conditional approval of the Connecticut Part D SIP were overrun.EPA and the states will no doubt feel continued pressure to finalize Part D SIP revisions as long as major new source construction and plant modifications remain frozen.⁵⁶

1. Connecticut Fund for the Environment, Inc. v. EPA, 672 F.2d 998, 12 ELR 20306 (2d Cir. Feb. 1, 1982).

2. 42 U.S.C. § 7401 et seq., ELR STAT. & REG. 42201.

3. City of Seabrook v. EPA, 659 F.2d 1349, 11 ELR 21058 (5th Cir. 1981).

4. For example, the National Commission on Air Quality reported that as of August 1980, 489 entire counties and portions of 17 others were nonattainment for ozone, while 44 entire counties and parts of 167 others were nonattainment for the primary standard for particulates. It estimated that over 140,000,000 people live in ozone nonattainment areas. NATIONAL COMMISSION ON AIR QUALITY, TO BREATHE CLEAN AIR, 3.4-5, 6 (1981).

5. See 44 Fed. Reg. 35853 (July 2, 1979) (announcing conditional approval policy).

6. Connecticut Fund for the Environment, Inc. v. EPA, 12 ELR 20306 (2d Cir. Feb. 1, 1982). A challenge to the conditional approval of the Kentucky SIP is pending before the Sixth Circuit. (ARMCO, Inc. v. EPA, No. 81-3089, petition filed Feb. 20, 1981). City of Seabrook v. Costle, 659 F.2d 1371, 11 ELR 21068 (5th Cir. 1981); City of Seabrook v. EPA, 659 F.2d 1349, 11 ELR 21058 (5th Cir. 1981); Citizens for a Better Environment v. EPA, 649 F.2d 522, 11 ELR 20732 (7th Cir. 1981); Citizens for a Better Environment v. Costle, 515 F. Supp. 264, 11 ELR 20963 (N.D. Ill. 1981)

7. Clean Air Act § 110(a)(1), 42 U.S.C. § 7410(a)(1), ELR STAT. & REG. 42210.

8. 42 U.S.C. § 7410(a)(2), ELR STAT. & REG. 42210.

9. Clean Air Act § 110(c)(1), 42 U.S.C. § 7410(c)(1), ELR STAT. & REG. 42210.

10. The Act requires attainment by December 31, 1982, except that for areas that are nonattainment for carbon monoxide or ozone, an additional extension may be granted up to December 31, 1987 if earlier attainment is not possible despite application of all reasonably available control measures. Clean Air Act § 172(a)(2), 42 U.S.C. § 7502(a)(2), ELR STAT. & REG. 42238.

11. Clean Air Act §§ 171-178, 42 U.S.C. §§ 7501-7508, ELR STAT. & REG. 42238.

12. 42 U.S.C. § 7470(d)(1), ELR STAT. & REG. 42208.

13. Clean Air Act § 107(d)(2), ELR STAT. & REG. 42208.

14. 42 U.S.C. § 7410(a)(2)(I), ELR STAT. & REG. 42210.

15. Clean Air Act § 110(a)(2)(D), 42 U.S.C. § 7410(a)(2)(D), ELR STAT. & REG. 42210.

16. Section 110(a)(2)(I), 42 U.S.C. § 7410(a)(2)(I), ELR STAT. & REG. 42210, states that the basic SIP must provide for the construction ban "unless, as of the time of application for a permit for such construction or modification, such plan meets the requirements of Part D".

17. Clean Air Act § 176(a)(3), 42 U.S.C. § 7506(a)(3), ELR STAT. & REG. 42239.

18. "In summary, the intervenors are correct in suggesting that EPA may not compel the submission of a full-scale Part D SIP. To the extent that Illinois and Indiana have submitted Part D revisions, they have done so voluntarily." Citizens for a Better Environment v. Costle 515 F. Supp. at 277, 11 ELR at 20970. But see City of Seabrook v. EPA, 659 F.2d at 1352, 11 ELR at 21058 ("The 1977 Amendments … required each state to revise its implementation plan for these 'nonattainment areas'").

19. 42 U.S.C. § 7502(a), ELR STAT. & REG. 42238.

20. 42 U.S.C. § 7502(b), ELR STAT. & REG. 42238.

21. The section dictates that the Part D SIP shall: (1) be adopted or promulgated after reasonable notice and public hearing, (2) provide for expeditious implementation of "all reasonably available control measures," (3) require, in the interim, "reasonable further progress" toward attainment, (4) include a "comprehensive, accurate current inventory of actual emissions" from all sources of nonattainment pollutants, (5) include an allowance for additional emissions from new sources, (6) require permits for major new sources or modifications, (7) identify and commit the resources needed to implement the plan, (8) contain emission limitations, schedules of compliance and other measures needed to implement the plan, (9) evidence public, local government and state legislative participation in the planning process, (10) contain written evidence that any new state or local legislation needed to implement the plan has been adopted, and (11) provide for special analysis of alternative sites for major new sources in all areas for which attainment deadline extensions to 1987 are sought.

22. 42 U.S.C. § 7503, ELR STAT. & REG. 42233.

23. Clean Air Act Amendments of 1977, Pub. L. No. 95-96, § 129(c), 42 U.S.C. § 7502, note, ELR STAT. & REG. 42238.

24. The "approve or disapprove" requirement is found in § 110(a)(2), which by its own terms addresses the initial SIP developed after promulgation of a new NAAQS. The 1977 Amendments did not specify how EPA was to review Part D SIPs, but since § 110(a)(3) makes the provisions of § 110(a)(2) applicable to revised as well as new SIPs and since the provision which triggers the Part D process was included in § 110(a)(2) it seems clear that Congress intended that section's procedures to govern. One court raised doubt on the issue: "the four month deadline may no longer apply since Part D SIP's are submitted under § 110(a)(2)(I) instead of § 110(a)(1) (which specifies the four month deadline)." Citizens for a Better Environment v. EPA, 515 F. Supp. at 271, 11 ELR at 20967.The Fifth Circuit, on the other hand, simply stated that the four month "approve or disapprove" deadline applies to Part D SIPs. City of Seabrook v. EPA, 659 F.2d at 1352, 11 ELR at 21059. See also, Connecticut Fund for the Environment, Inc. v. EPA, 12 ELR at 20312.

25. 42 U.S.C. § 7410(c)(1), ELR STAT. & REG. 42210.

26. 42 U.S.C. § 7410(a)(2)(H), ELR STAT. & REG. 42210.

27. 42 U.S.C. § 7506, ELR STAT. & REG. 42239.

28. See, ENVIRONMENTAL LAW INSTITUTE, AIR AND WATER POLLUTION CONTROL LAW 664-67 1982) for a description of the nonattainment area designation process. See also Comment, Circuit Split Over APA Notice and Comment Requirements Derails EPA's Clean Air Act Non-Attainment Designations, 9 ELR 10173 (1979).

29. See, e.g., Western Oil & Gas Ass'n v. EPA, 633 F.2d 803, 806, 10 ELR 20985, 20986 (9th Cir. 1980).

30. COUNCIL ON ENIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY 61 (1979).

31. For example, Connecticut modified its Part D SIP submission six times between June 22, 1979, when it first gave the plan to EPA, and November 1980, when EPA proposed approval. Connecticut Fund for the Environment, Inc. v. EPA, 12 ELR at 20308.

32. Citizens for a Better Environment v. Costle, 515 F. Supp. at 270, 11 ELR 20966.

33. That state was Wyoming. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY 61 (1979).

34. 44 Fed. Reg. 35853 (July 2, 1979).

35. As of January 1981 EPA had taken final action on 21 complete Part D SIPs. Of these, 15 were conditionally approved. NATIONAL COMMISSION ON AIR QUALITY, TO BREATHE CLEAN AIR 3.4-13 (1981).

36. In Citizens for a Better Environment v. Costle, 515 F. Supp. 264, 11 ELR 20963 (N.D. Ill. 1981), the court ruled that it had jurisdiction over plaintiffs' challenge to EPA's inaction concerning certain portions of two states' Part D SIP submissions and its conditional approval of others. The court ruled that EPA has a nondiscretionary duty to approve or disapprove the state plans in accordance with the statutory schedule, and to promulgate a federal plan if it disapproves all or part of the state's submission. It held that conditional approval posed a sufficiently concrete issue to make the challenges ripe for adjudication, but that it was not a final action causing jurisdiction to vest in the circuit courts of appeals under § 307 of the Act, 42 U.S.C. § 7607, ELR STAT. & REG. 42257. However, the courts of appeals that have addressed this issue held that conditional approval is final action conferring jurisdiction on them under § 307(b)(1) of the Act. See Connecticut Fund for the Environment, Inc. v. EPA, 12 ELR at 20312; City of Seabrook v. Costle, 659 F.2d at 1373, 11 ELR at 21069; But see Citizens for a Better Environment v. EPA 649 F.2d 522, 11 ELR 20732 (7th Cir. 1981), in which the Seventh Circuit held that it lacked jurisdiction over challenges to EPA's conditional approval of provisions of the Illinois SIP which were not valid state law when reviewed by EPA.

37. See Citizens for a Better Environment v. Costle, 515 F. Supp. at 279, 11 ELR at 20971 ("there is serious doubt as to whether this procedure is contemplated by the Clean Air Act").

38. 659 F.2d 1349, 11 ELR 21058 (5th Cir. 1981).

39. 12 ELR 20306 (2d Cir. Feb. 1, 1982).

40. See, e.g., City of Seabrook v. EPA, 659 F.2d at 1353, 11 ELR at 21059.

41. "We think that petitioners' interpretation is a reasonable one. If the EPA had adopted it, we would uphold it. The issue, however, is not whether petitioners' interpretation is reasonable, but whether EPA's interpretation is 'plainly unreasonable.'" 659 F.2d at 1356, 11 ELR at 21060.

42. 659 F.2d at 1354-558 11 ELR at 21059-60.

43. City of Seabrook v. EPA, 659 F.2d at 1356, 11 ELR at 20161.

44. Connecticut Fund for the Environment, Inc. v. EPA, 12 ELR at 20310, citing McManus v. CAB, 286 F.2d 414, 419 (2d Cir., cert. denied, 366 U.S. 928 (1961).

45. 12 ELR at 20310.

46. 659 F.2d at 1356, 11 ELR at 21061.

47. Id.

48. 12 ELR at 20312.

49. 659 F.2d at 1358, 11 ELR at 21062; 12 ELR at 20313.

50. 12 ELR at 20313 n.26.

51. 659 F.2d at 1358, 11 ELR at 21061.

52. Id.

53. 12 ELR at 20310.

54. 12 ELR at 20311.

55. See, id., citing with approval the EPA policy statement on Part D SIPs in 44 Fed. Reg. 38471, 38472 (July 2, 1979). However, EPA reportedly now interprets the construction ban provision somewhat differently as it applies to the required submittal by July 1, 1982 of Part D SIP revisions for areas qualifying for an extension of the attainment deadline for carbon monoxide or ozone to 1987. The EPA General Counsel recently circulated a memorandum to regional offices stating that states failing to submit such SIP revisions by July 1, 1982 would not be subject to the construction ban if the SIP already included enforceable measures to assure compliance by the 1987 deadline. INSIDE E.P.A., May 10, 1982, at 183.

56. Of course, the construction moratorium does not affect all states equally. Those experiencing economic growth will be harder hit.