Three Strikes and the Umpire Is Out: The Supreme Court Throws the D.C. Circuit Out of the Bubble Review Game

Phillip D. Reed

Editors' Summary: In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court resolved a long-running dispute over the definition of "source" in the Clean Air Act nonattainment area new source review program. The Court ruled that EPA acted within the discretion left if by Congress in changing to a definition making "source" synonomous with "plant," and castigated the D.C. Circuit for inserting its own policy preferences into an equation Congress intended the Agency to solve. The author reviews the analysis and reasoning of the Court and concludes that the decision will restrain judicial review of agency decisionmaking and statutory interpretation. The Court suggested specific criteria for limiting judicial review and issued a strong general demand for deference. The author argues that the decision, while encouraging expansion of the "bubble policy," will have a narrower impact on Clean Air Act interpretation than on judicial review, because the Court skimmed over several difficult Clean Air Act issues in order to make its message on judicial review as strong as possible.

[14 ELR 10338]

In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.¹ the Supreme Court set a new tone of judicial restraint in reviewing agency action. The Court reinstated an Environmental Protection Agency (EPA) reform of Clean Air Act² rules that govern the modification of major industrial operations in areas of the country that have not achieved the Act's goal of healthy air. At issue was EPA's redefinition of pollution "source" as an entire plant, which offered industry an opportunity to modernize or expand factories in areas with unhealthy air without undergoing the tough new source review process dictated for such areas by Congress in 1977. The D.C. Circuit had held³ that the Agency had to return to a definition under which a "source," the modification of which required compliance with stringent new source rules, was either an entire plant or an individual pollution-emitting industrial unit within the plant. The Court reversed, ruling that the D.C. Circuit had jumped the bounds of proper judicial review and trespassed in the policymaking domain of EPA and Congress. The decision allows expansion of EPA's "bubble policy,"⁴ but its primary significance is in the general support it gives to regulatory reform and the restraining influence it will have on federal judges" review of agency action.

Background

In Chevron the Court interpreted EPA's definition of "source" as it applies in nonattainment area new source review rules. In 1981 EPA had revised the rule, defining "source" as an entire plant instead of a plant or a single emitting unit within a plant (such as an individual boilerin a power plant or a single coke over battery in a steel mill). The changed definition narrowed the scope of new source review.

The Clean Air Act operates through source-specific emission limits. As amended in 1970, the Act directed EPA to set national ambient air quality standards (NAAQSs) to protect the public health and welfare.⁵ It also directed EPA to set uniform national "new source performance standards" (NSPS) for categories of major industrial facilities.⁶ If a company wanted to build a new factory in one of these categories it had to equip the facility with emossion control technology that would achieve the NSPS. Regulation of existing sources was left to the states, which had to translate the air quality standards into state implementation plans (SIPs) that would achieve the NAAQS within three years.⁷ SIPs combine emission limitations for industrial sources, transportation control plans for mobile sources, and other measures to effect large enough cuts in total emissions to attain the NAAQS. If an area of the state was already in compliance with the air quality standards, no controls were required on existing facilities, although new sources in categories covered by NSPS still had to comply with the federal standards. It was the provision of measurable numerical emission limits for individual sources that for the first time made Clean Air Act goals enforceable.⁸

[14 ELR 10339]

While the 1970 Amendments introduced the concept of enforceable emission limits, they did not resolve all questions about the scope of the new requirements, because they did not clearly define "source." The only definition of the term was and is found in § 111(a)(3), among the definitions governing the NSPS program.⁹ "Source" there is defined as "any building, structure, facility, or installation which emits or may emit any air pollutant." The component terms are not defined. The terms used suggest large units (building, facility, installation) and units that could be smaller than plants (structure, building). The smallest possible "source" might be a single emitting unit, such as a coke oven battery or a boiler; or it might be a single integrated production unit, such as a plant. To make matters worse, the "source" is the key regulated unit in the many different programs under the Act.¹⁰

As important to the scheme of the 1970 Amendments as enforceable, source-specific emission limits were provisions designed to harness the normal process of industrial modernization to drive the reduction of air pollution. Congress expected that dramatic cuts in air pollution would occur as clean new factories equipped with NSPS controls replaced dirty older facilities.¹¹ The approach appeared economically rational as well; it seemed logical that controls designed into new factories would be less expensive than those that had to be grafted onto existing facilities.

When the 1970 version of the Clean Air Act failed to achieve its goal of making the air healthy from coast to coast by 1975,¹² Congress went back to the drawing board. It has to make state implementation plans tougher, and it had to address growth in nonattainment areas. The attainment deadlines made the matter urgent. Arguably under the 1970 Act there could be no new industrial development in areas that had not met the deadlines, and only one major U.S. city had done so.¹³ Congress wrestled with amendments to address the nonattainment problem and other issues for two years and finally settled on a package that extended the attainment deadlines, but that also imposed strict permit requirements for major new sources and modifications of major existing sources in nonattainment areas.¹⁴ The 1977 Amendments also required states to tighten up their regulations of existing factories.

The new nonattainment program had two basic components: planning requirements and new source review requirements. The planning requirements were threefold: (1) the states had to revise their SIPs by 1979 (or 1982) to demonstrate attainment by 1982 (or 1987);¹⁵ (2) the new "Part D"¹⁶ SIPs had to impose reasonably available control technology (RACT) standards on existing sources of nonattainment pollutants, and (3) the Part D SIPs had to demonstrate reasonable further progress toward attainment (RFP) until attainment was achieved. In addition, the Part D SIPs had to include new source review programs for major new facilities and modifications.¹⁷ New source review programs had to require, among other things, (1) permits, (2) compliance with very stringent emission limitations,¹⁸ and (3) either case-by-case offsets of the new emissions or sufficient extra SIP controls on existing sources to create a margin for growth while still demonstrating attainment and RFP.¹⁹ After the 1979 deadline, until required SIP revisions were in place, there was to be a moratorium on construction of major new sources.²⁰

The combination of tough control standards for new sources and relatively lenient requirements for existing sources that was introduced by the 1970 Amendments, and continued to a lesser degree in the 1977 program, created an incentive to juggle requirements between the two categories of sources. Companies contemplating expensive control requirements for new production units discovered that they could achieve the same net result at lower cost by controlling nearby existing units beyond what the SIP required and installing less effective controls on the new equipment. A simple way of making this possible was to define "source" broadly. Since only construction producing more than some threashold increase in emissions was covered by the new source review program,²¹ [14 ELR 10340] the larger the source, the more opportunities to avoid review by offsetting emissions from new equipment with reductions in emissions from old equipment in the same plant. If the plant is the regulated "source," then it is only the aggregate emissions from all the smokestacks in the plant that matter, as though the plant were encased in a bubble with only one emission outlet. As to new construction at the plant, it is only the net effect on emissions that counts. Thus, using the bubble concept to avoid new source review is called "netting." In netting and its other applications, the bubble concept gives company flexibility to go beyond what the law requires at existing equipment in a plant to avoid expensive control requirements on new equipment or to reduce the cost of new requirements for existing equipment.²²

On four occasions EPA considered applying the bubble concept to new sources and modifications, and also developed a general policy to encourage the use of bubbles to ease the cost of existing source control requirements. In 1974 EPA promulgated NSPS for the nonferrous smelter industry that allowed a company to modify a smelter without complying with the emission limits by cutting emissions at existing outlets so there would be no net increase in total air pollution from the smelter. The D.C. Circuit overturned the rule in 1978 in ASARCO, Inc. v. Environmental Protection Agency, holding that it conflicted with the language of § 111 and the purpose of the NSPS program.²³ In 1976 EPA issued an "Offset Ruling" governing growth in nonattainment areas.²⁴ The Ruling established a new source review program that was the model for the one enacted by Congress in 1977. In 1978 EPA allowed netting for modifications of existing facilities in the new source review rules under the prevention of significant deterioration (PSD) program.²⁵ The D.C. Circuit in 1979 rejected the PSD rule in Alabama Power Co. v. Costle, this time finding them too stringent, since the modifications still required permits.²⁶ It distinfuished ASARCO on, among other grounds, the difference in the purposes of the PSD and NSPS programs. In 1979 EPA adopted a "bubble policy" encouraging states to allow the use of the bubble concept in SIP rules governing existing sources and coordinating the different applications of the concept.²⁷

The last act began in 1979 as well, when EPA considered allowing netting in its nonattainment area rules,²⁸ but decided to define "source" as both a plant and an individual piece of process equipment to preclude netting.²⁹ In 1981, however, the regulatory reform interests of a new administration led EPA to reverse its decision. The Agency changed the "dual" definition to a plantwide definition. The Natural Resources Defense Council (NRDC) sued and the D.C. Circuit in Natural Resources Defense Council, Inc. v. Gorsuch³⁰ again decided that EPA was in error. The court found the statute and legislative history ambiguous on the point, but ruled that the two earlier decisions had definitively interpreted the Clean Air Act purpose to bar EPA's nonattainment area-netting rule. ASARCO and Alabama Power had established a bright line test: the bubble policy is required in programs intended to maintain clean air; prohibited in those designed to clean up dirty air. The Supreme Court granted petitions for certiorari and reversed.

The Decision in Chevron

The Supreme Court overturned the D.C. Circuit in a unanimous decision subscribed to by six Justices.³¹ Justice Stevens wrote the opinion. After a thorough statement of the principles governing judicial review, the opinion tackled the issues in two waves. It first identified and described key points in the statute, legislative history, and administrative record; then analyzed the points that control in this case. The analysis proceeded in large strides to the conclusion that the court of appeals should have deferred to EPA's definition of "source" and should have upheld the plantwide definition as reasonable.

Judicial Review

The Court mapped the course its analysis would take with a recitation of the basic principles governing judicial review of agency action. First, "employing the traditional tools of statutory construction," a court must determine whether the Congress "had an intention on the precise question at issue."³² If Congress explicitly or implicitly left a gap in the statutory scheme, a court must decide whether the agency's interpretation is "permissible." There are two standards. Where the delegation is express, the agency's reading controls unless "arbitrary, capricious, or manifestly contrary to the statute."³³ If the delegation is implied, the court must uphold a "reasonable interpretation" made by the agency.³⁴ Deference to the agency is particularly important where interpretation requires "reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations."³⁵ If the policy balance struck by the agency is reasonable, a court should let it stand "unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned."³⁶

At this point the Court paused in its analysis to explain the basic error of the D.C. Circuit. Once the lower court had concluded that the statute and legislative history revealed [14 ELR 10341] no congressional intent regarding the definition of "source" for the nonattainment program, it should have looked to the reasonableness of EPA's interpretation, not to its own earlier writings.

The Legal Background

The next section of the opinion related the legal background against which the Court would render its decision. The Court reviewed the developments leading up to passage of the 1977 Amendments, then examined the nonattainment area provisions of the Amendments, their legislative history, and the history of EPA's attempts to implement the nonattainment program. In its analysis of the background, the Court looked only to what Congress said on the specific issue of the definition of "source" in the nonattainment program.

The Court read the events leading up to passage of the 1977 Amendments to indicate that neither Congress nor EPA ever thought a narrow reading of "source" was necessary. The Court pointed out that the nonferrous smelter NSPS allowing netting was in effect at the time of the Amendments and drew no congressional criticism.³⁷ It noted that the Amendments were forged out of heated conflict over the needs for clean air and industrial growth in nonattainment areas.³⁸ Of particular interest is the Court's analysis of the 1976 Offset Ruling since it forms part of both the administrative and legislative history of the nonattainment program. The Court noted that the Ruling "gave primary emphasis to the rapid attainment of the statute's environmental goals," but "did not, however, explicitly adopt or reject the 'bubble concept.'"³⁹ The Court seemed to give no significance to the former point, which is made strongly by the Ruling, but relied on the latter, which is based on flimsy evidence of administrative intent.⁴⁰

Turning to the 1977 Amendments, the Court described the nonattainment new source review program in detail. It concluded that the program made no specific reference to the bubble policy or the definition of stationary "source".⁴¹

The Court's description of relevant legislative history pointed out the lack of "specific comment" on the bubble concept and definition of "source." The Court quoted House Committee Report language that the "main purposes" of the new source review program were to allow reasonable growth and give states more flexibility than had the Offset Ruling.⁴² It quoted Senate Committee Report language on the value of "case-by-case review of each new or modified major source" in nonattainment areas, but noted that that discussion "was not addressed to the precise issue raised by this case."⁴³ Finally the Court, without comment, quoted Senator Muskie's floor statement that a new source built as a replacement for a retired source is fully subject to new source review even if the net effect is a reduction in emissions.⁴⁴

The Court read the administrative history of the nonattainment program rules to show EPA consistently using a plantwide definition of "source" to some extent, except for a brief hiatus.⁴⁵ The Court recited EPA's 1979 nonattainment netting proposals and noted its justification that, given the existence of the nonattainment planning requirements, narrowing the scope of new source review would not slow the forced march to clean air.⁴⁶ When EPA decided in 1980 not to allow the plantwide definition at all, it was driven, the court concluded, by the D.C. Circuit's decision in ASARCO and Alabama Power more than by its own analysis of the statutory requirements.⁴⁷ The Court characterized the 1981 reversal to a plantwide definition as a new administration's studied conclusion that the dual definition stifled modernization and retarded cleanup, while making the Act unnecessarily complex, and noted EPA's renewed reliance on nonattainment planning to continue to ensure timely cleanup of the air.

The Court's Ruling

The Court's ruling in Chevron was simple and, following its review of the relevant law and history, anticlimactic. The Court agreed with the D.C. Circuit that the statute [14 ELR 10342] and legislative history are ambiguous, and then found EPA's interpretation reasonable. The Court closed with a stern lecture to the D.C. Circuit, telling it to leave policy-making to Congress and the agencies, which, unlike the courts, are answerable directly or indirectly to the electorate.

In ruling that the statute does not define "source" as used in the nonattainment program, the Court accepted NRDC's argument that § 111(a)(3) is relevant, but rejected its argument that the NSPS definition mandates a dual definition. The Court rejected the industry position that § 111(a)(3) does not apply, and even agreed with the NRDC that the definition could be read to treat a boiler or other emitting unit within a plant as a source. The Court concluded, however, that other interpretations are equally reasonable and that Congress' use of several "overlapping, illustrative terms" in the definition suggests as much as anything an intent to give EPA flexibility in defining "source."⁴⁸

In a footnote, the Court rejected a programmatic argument put forward by NRDC to the effect that the plantwide definition blunts the basic thrust of nonattainment area new source review. NRDC contended that Congress intended all five new source permit conditions⁴⁹ to apply as broadly as possible, since it expressly gave stated discretion to let sources avoid only one (the offset requirement) and only under limited conditions.In contrast, EPA's rule would let states exempt facilities from all the permit requirements in exchange for a partial offset.⁵⁰ The Court found NRDC's reasoning circular, pointing out that whether the conditions of the permit program apply depends on the definition of "source." Congress clearly intended the permit requirements to be stringent; what it did not specify was the scale of industrial operations to which they apply.⁵¹ Having found the words ambiguous on their face, the Court refused to probe the functions of the provision in which they are found in search of the reading that would best fulfill the statutory goals. In other words, because the dispute concerned the definition of the basic regulated entity, the Court deflected arguments implying from the clear thrust of the nonattainment program that Congress intended a dual definition.

The Court summarily concluded that the legislative history too is ambiguous. It disarmed NRDC's most potent weapon, Senator Muskie's statement about the application of the permit program to clean replacement sources, characterizing it as ambiguous and not relevant to the point of what is a "source' in the first place.⁵² The Court concluded that, while silent on the definition of source, the legislative history is "consistent with the view that the EPA should have broad discretion in implementing the policies of the 1977 Amendments,"⁵³ because of the apparently conflicting clean air and economic development purposes it had found in the history. As it had in analyzing the statutory language, the Court refused to look beyond whether the "precise question" — the definition of "source" — was addressed.

That concluded the Court's analysis of the statute, legislative history, and statutory purpose. It had declined every invitation to divine a statutory purpose from the requirements imposed by the nonattainment program. It made no mention of the general rule that regulatory statutes are to be constued broadly to acheive their remedial purposes. It made no attempt to determine whether what Congress wrote in the statute indicated any intention as to the relative weight of the clean air and economic development purposes of the Act.⁵⁴ The Court seemed to be searching for a question, not an answer.

Turning abruptly to EPA's definition of "source," the Court found it reasonable. The plantwide definition was fully consistent with the economic development concerns that, the legislative history revealed, had motivated the Amendments. The Court ignored the point made by NRDC that the Amendments themselves served this purpose very specifically by allowing growth under carefully limited conditions.⁵⁵ The Court then noted that EPA had reasonably explained its conclusions that the plantwide definition would help clean up nonattainment areas. For this proposition the Court cited (1) EPA's assertion that the dual definition kept companies from replacing dirty old sources; (2) EPA's claim that the nonattainment planning requirements and NSPS would adequately safeguard the clean air purpose; (3) a statement by a New York State official supporting EPA's assertion about replacement facilities;⁵⁶ and (4) "certain private studies," for which it cited an economic analysis stating that the flexibility allowed by the bubble policy would produce quicker, cheaper cleanup.⁵⁷ This support is essentially the same as what the court of appeals found to be no support at all because it failed to address the question of the aggregate air quality impact of the plantwide definition.⁵⁸

Having found EPA's interpretation reasonable, the Court dispatched NRDC's argument that EPA had run a naked regulatory reverse of the kind the Court rejected as arbitrary and capricious in Motor Vehicle Manufacturers Association v. State Farm Mutual Life Insurance Co.⁵⁹ The Court saw not a reversal of position, but consistency, in EPA's change in the "source" definition: "the agency … has consistently interpreted it flexibly."⁶⁰ Indeed, the Court observed that "the fact that the agency has adopted different definitions in different contexts adds force to the argument that the definition itself is flexible, particularly since Congress never indicated any disapproval of a flexible reading of the statute."⁶¹ The Court noted again that it was the opinions of the D.C. Circuit more than anything else that caused EPA policy shifts.⁶²

Finally, the Court gave the D.C. Circuit a civics lecture on the respective roles of the courts and agencies.⁶³ The choice at issue in this case was a policy one not resolved by Congress. Federal judges must leave such choices to the politically representative branches of government, the Congress and executive.

Analysis

Chevron packages a narrow legal ruling in broad language about the purposes of the Clean Air Act and the scope of judicial review of agency action. The precise ruling on the legality of new source "netting" in nonattainment areas came as a surprise to many observers, but does not effect a major change in the law. The Court's broad statements on judicial review and Clean Air Act legislative history, on the other hand, could have a far wider impact and are troubling because of the casual treatment given several complex legal issues. Because of the unusual posture of this case, other courts might read Chevron narrowly, but the Court seems to have invited a broad application of its analysis of the need for judicial restraint. In any event, clarificiation of just how far the Supreme Court intended to go in limiting judicial review could be available soon; the Court will have an opportunity to apply Chevron in another pollution control case in the coming Term.

Judicial Review

Chevron will most often be cited for its discussion of judicial review and deference to agency statutory interpretation. The Court issued a strong general demand for judicial restraint in second guessing agency construction of the intent of Congress. When it becomes reasonably clear that Congress did not have a specific intent on the precise question at issue, courts should stop and defer to a reasonable, properly arrived at administrative interpretation. Exactly where the stopping point should be must be determined anew in each case, but by conducting a very narrow review of the statutory purpose in Chevron, the Court may have established specific guidance on when courts should end their inquiries into subjects left ambiguous by Congress. The Court also made clear that the principle of deference to agency action is as strong in the context of regulatory reform as it is for new regulations. It ruled that the mere fact that an agency changed its mind does not diminish the deference it is owed and indicated that an agency reforming a rule need not amass support for the reform greater than it had for the original rule.

Chevron identified specific stopping points for judicial inquiry into congressional intent in deference cases. The Court reiterated the traditional principles that broadly constrain judicial review: that courts must examine plain language, legislative history, and if necessary, statutory purpose, to determine whether an agency's interpretation is consistent with congressional intent.⁶⁴ The Court did not heed Justice Frankfurter's maxim about the difficulty of prescribing precise standards for review.⁶⁵ It indicated first that analysis into statutory language and legislative history should focus only on the "precise question" at issue. When the search proceeds into statutory purpose, the judicial inquiry can be a wide-ranging one. The Court seems to have established a conflicting purposes test to limit that inquiry. That test would be that when a court is driven to the statutory purpose for guidance on congressional intent, it should stop at the first substantial sign that Congress was trying to balance competing purposes.⁶⁶ The rationale for the test was that where Congress did not expressly resolve the balance to be struck, an agency is a better institution to do it than a court, since the issue is one of policy and the agency has at least some of the political responsiveness our society expects in its policymakers.⁶⁷

If Chevron established a conflicting purposes test for cutting off judicial review of statutory purpose, how would the test operate? It would seem that the conflicting purposes must be expressed clearly and in authoritative fashion.⁶⁸ Presumably they would need to relate directly to the issue in dispute and be roughly equivalent in importance. If a court failed to find the requisite evidence of conflicting purposes, presumably it would continue its search for relevant evidence of statutory purpose, restrained to some degree by the Court's admonition not to tread on policy grounds.⁶⁹ If a court found a significant conflict of purpose, its inquiry would shift to whether the agency interpretation was permissible, an inquiry that boils down to whether the agency was arbitrary and capricious. Part of this inquiry is whether the agency reached a reasonable accommodation among the conflicting purposes. Thus, in Chevron, the Court concluded that the plantwide definition of "source," in addition to stimulating development, left in place adequate assurances in the planning component of the nonattainment program that the 1977 Amendments' air quality goals would still be met.

It is arguable that the Court did not establish a new test, but merely found on its reading of the statute and legislative history in the case that analysis of statutory purposes did not eliminate the ambiguity surrounding the definition of "source." Such a reading would avoid the risk inherent in the conflicting purposes test of an extreme shift to agency independence of judicial scrutiny.⁷⁰

The Court will likely elaborate on its ruling in Chevron soon. In November it will hear arguments in Chemical Manufacturers Association (CMA) v. Natural Resources Defense Council, Inc.,⁷³ another industry/EPA challenge to an NRDC court of appeals victory. CMA presents an equally complex question of statutory interpretation: whether the Federal Water Pollution Control Act⁷⁴ allows EPA to grant "fundamentally different factors" variances from categorical standards governing industrial discharges of toxic pollutants to public sewage treatment plants. The government has argued in its brief that Chevron mandates judicial deference to its interpretation of the relevant statutory provisions, none of which directly answers the question.⁷⁵ NRDC does not cite Chevron in its brief.⁷⁶ CMA, like Chevron, comes to the Court with a history of strong judicial action filling gaps in the statutory scheme left by Congress, though this time it was the Supreme Court that intervened, and essentially in support of EPA.⁷⁷

In addition to its impact on judicial review, Chevron is a modest victory for regulatory reform. Several of the Reagan Administration's early efforts at deregulation were so clumsy as to create law suggesting that it should be more difficult to deregulate than to regulate in the first place.⁷⁸ In one such case the Supreme Court unanimously affirmed the D.C. Circuit's rejection of a portion of a rule-unmaking, but established the principle that the same arbitrary and capricious standard applies to deregulation as to regulation.⁷⁹ Chevron made the related point that the mere fact that an agency changes its mind does not deprive its statutory interpretation of the right to deference.⁸⁰ It also seems to indicate that the record on which the relaxation of a rule is based need be no stronger than the record on which the original rule was based.⁸¹

Clean Air Act Issues

Chevron was not a landmark of Clean Air Act analysis. The questions addressed by the Court — the definition of "source" and the importance of the economic development purpose stated in the legislative history of the nonattainment area program — are important. The Court's analysis of "source," while somewhat superficial, is not unreasonable. The analysis of legislative history was surprisingly abstract. As a result it seems unlikely to be carried far in other contexts. Since the application of the result in other contexts would depend on both elements of the Court's analysis, the impact of the decision on other Clean Air Act cases seems likely to be limited.

Chevron analyzed one of the critical definitions in the Act, that of the basic regulated entity — the stationary "source." The Court concluded that the only definition to be found, § 111(a)(3), is ambiguous. The Court reached this conclusion by dismissing rather casually NRDC's painstaking analysis of the four components of "source."⁸² The Court dismissed such efforts to parse the meaning of the terms almost out of hand, and turned to the argument that it simply did not make sense that Congress would have intended to limit EPA's discretion in such a critical area with such ambiguous language. And on that level, the Court's reasoning is persuasive.

When it turned from analysis of the statute itself to the legislative history, the Court's logic became more strained. There is abstract logic to the Court's argument that the Muskie quote⁸³ is not dispositive, because it refers to replacement "sources" and "facilities," but does not define them. However, the reasoning makes no sense if one considers how the result affects a critical question in the implementation of Congress' intent — what will be the scope of the new source review program? It is difficult to conceive of Congress specifying a complex and stringent new source review program that could be dodged with extraordinary ease using a route that significantly reduced the cleanup achieved.

If the Court's reasoning on the legislative history is questionable from a Clean Air Act perspective, its analysis of statutory purpose is shocking. The Court accepted the argument originally raised by industry, and picked up by the Solicitor General,⁸⁴ that a main purpose of the nonattainment program was economic development. It seems clear from the provisions Congress wrote into the nonattainment program that the economic development to be allowed was to be constrained by the new source review program and the construction moratorium.⁸⁵ It seems unlikely that the Court would have accepted an argument with such sweeping implications had it not been made by the United States. Persuasive arguments can be made that the Clean Air Act cries out for increased flexibility to avoid discouraging economic growth while cleaning up the air,⁸⁶ but the idea that those arguments were behind the nonattainment provisions of the 1977 Amendments finds little if any support in the Amendments or their legislative history.

Why did the Court buy the economic development argument? One possible answer is that it was convinced that the Act is overly rigid and needs an infusion of flexibility to keep it vital in an era of economic difficulty and spiraling pollution control cost. That could not have been the reason, however, since it would have involved the sort of judicial activism that the Court was trying to discourage. Perhaps the Court simply did not understand the issues. That explanation too must be dismissed. The Court has dealt with equally complex Clean Air Act issues on their own terms.

A more plausible foundation for the Court's treatment of statutory purpose is that it saw Chevron not as a Clean Air Act case, but as a judicial review case. It accepted a questionable reading of Congress' purpose in order to make the strongest possible statement to the courts of appeals about the need for restraint in reviewing agency rules interpreting ambiguous statutes. From a Clean Air Act point of view, the weight given the economic development purpose appeared to the Court to have no impact on achievement of the air quality standards, the true goal of the legislation, because of RFP, attainment demonstrations, and the NSPS. Thus, the Court's recognition of the economic development purpose, which clearly did have significance in Congress' deliberations, did not appear to cost anything in terms of the more fundamental purposes of the Act. Accepting NRDC's arguments to the contrary, which were based on abstract arguments and not data,⁸⁷ required the Court to accept the argument that the Act's success depends not on the programs that have the stated purpose of driving the control of air pollution (e.g. the SIPs and their attainment demonstrations), but to shadow programs of universal technology-forcing in which every requirement on the books is pushed to the limit of stringency to offset the hidden weaknesses of air-quality-based planning programs.⁸⁸ Thus, it appears possible that the Court saw this case as an opportunity to drop the "other shoe" limiting judicial review of substantive agency policies,⁸⁹ and to clarify its stand on regulatory reform, without upsetting Clean Air Act effectiveness.

While the Court may not have been focusing primarily on the Clean Air Act, Chevron nonetheless will have an impact on future implementation of the Act. What that impact will be is difficult to predict, but it appears likely to be limited. The decision does open the door to a bubble policy allowing modifications of major sources in nonattainment areas to escape new source review. This in turn should expand use of the bubble policy in general, and could be the catalyst that will move this promising concept from the experimental to the programmatic stage.⁹⁰ The decision does not, however, necessarily allow netting in all nonattainment areas.

The decision implies that the option should only be allowed in areas with demonstrations of attainment and reasonable further progress, since those planning requirements were relief on by EPA and the Court to establish that narrowing the scope of new source review is not arbitrary or capricious in light of the Act's air quality goals. Thus the plantwide definition still would be barred in nonattainment areas with 1982 attainment dates and in 1987 areas without approved Part D SIPs. This argument could be extended to requiring reversion to the dual definition for 1987 areas with approved SIPs that fail in some measurable way to achieve reasonable further progress at appropriate milestones between now and 1987. Absent interim checks of RFP Chevron essentially says that the plantwide definition and narrowed new source review is good until 1987, a decision that will be regrettable if it can by then be shown that the plantwide definition and modification bubble do not help make the air cleaner. In this regard, the decision represents a modest shift back in the direction of pre-1970 air-quality-based regulation.

Chevron also appears to give a boost to EPA's ability to allow additional uses of the pubble policy. EPA's policy on existing source bubbles in nonattainment areas might be expanded, for example. The Agency has been struggling to determine whether, and under what conditions, to allow bubbles at all and bubbles involving the shutdown of existing equipment in nonattainment areas without approved SIP revisions. Chevron may help catalyze a final resolution of these issues and issuance of the oft-delayed policy, now not expected much before the end of 1984.⁹¹

Chevron probably will have no impact on the use of the bubble policy in the NSPS program. At first glance it appears that the Court overruled ASARCO.⁹² The Court did find the definition of "source" in the NSPS section of the statute to be ambiguous. That alone does not open the door to a plantwide definition. EPA would have the flexibility to redefine the term, but only if the legislative history and statutory purpose are ambiguous or support that redefinition. Since the economic development purpose of the nonattainment program was the keystone of the Court's finding of ambiguity in Chevron and that 1977 history does not apply to the 1970 NSPS, ASARCO probably has not lost its vitality. There may be an NSPS bubble in spite of ASARCO, however. EPA apparently has decided to approve a "compliance" bubble for sources covered by NSPS in response to an application from Central Illinois Power Service.⁹³

Conclusion

The saga of the D.C. Circuit and the new source bubble has been running for over a decade and the Supreme Court has thrown the court of appeals out of the game. Yet, the game will go on. Chevron is likely to have a broad impact, particularly on the subject of judicial review, but it does not answer the question of how "source" should be defined in any Clean Air Act programs other than nonattainment area new source review. All that can be said is that EPA's interpretations probably will be accorded added deference. Whether read broadly or narrowly, Chevron will restrict federal judges' forays into statutory purpose and policy arguments in search of congressional intent. Judicial review will remain a complex analytical process in which there is substantial room for the exercise of reviewing courts' judgment, but there will be more weight on the side of the balance favoring agencies' analysis of the law. On the other side of the fence, public interest groups like NRDC will have a harder time overturning agency action in court, and may lose some of the considerable influence their [14 ELR 10347] court victories have given them in administrative proceedings. Chevron also is likely to have an impact on Congress, which might decide to counter the added deference accorded agencies like EPA by writing statutes with greater specificity. That in turn could slow the legislative process dramatically. Specifically, Congress will entertain proposals to reinstate the dual definition of "source," as was done in the Clean Air Act amendments reported out of the Senate Environment and Public Works Committee in 1982.⁹⁴ Chevron will have accomplished much if it persuades Congress at last to answer the critical question of how it intended "source" to be defined. Absent congressional action we might see another series of long-running disputes over what is a "source" in other programs.

1. 14 ELR 20507 (U.S. June 25, 1984).

2. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

3. Natural Resources Defense Council, Inc. v. Gorsuch, 685 F.2d 718, 12 ELR 20942 (D.C. Cir. 1982). For an analysis of the D.C. Circuit opinion, see Comment, D.C. Circuit Bursts EPA's Nonattainment Area Bubble, 12 ELR 10089 (1982).

4. For an explanation of the term "bubble policy," see Rhinelander, The Proper Place for the Bubble Concept Under the Clean Air Act, 13 ELR 10406 (1983) (herinafter cited as Rhinelander).

5. Pub. L. No. 91-606, 84 Stat. 1676 (1970). The NAAQS requirements are found at Clean Air Act § 109, 42 U.S.C. § 7409, ELR STAT. 42209.

6. Clean Air Act § 111, 42 U.S.C. § 7411, ELR STAT. 42213.

7. Clean Air Act § 110, 42 U.S.C. § 7410, ELR STAT. 42210. So long as the SIP demonstrates attainment and maintenance of the NAAQS, and satisfies other criteria listed in § 110, EPA must approve it. This is true even if the SIP imposes economically unachievable limitations. Union Electric Co. v. Environmental Protection Agency, 426 U.S. 246, 6 ELR 20570 (1976).

8. Emission limits are "regulations of the composition of substances emitted into the ambient air from such sources as power plants, service stations, and the like." Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 79, 5 ELR 20264, 20268 (1975). Because they are source-specific and measurable, they are enforceable.Prior to the 1970 Amendments to the Clean Air Act, the federal statute only authorized forced abatement of air pollution through court order, and only where the emissions to be controlled could be linked to an air pollution problem, and physically and economically practical control measures could be identified. See Jorling, The Federal Law of Air Pollution Control, in FEDERAL ENVIRONMENTAL LAW 1060, 1061 (Dolgin & Guilbert eds. 1974).

9. 42 U.S.C. § 7411(a)(3), ELR STAT. 42213.

10. See, e.g., § 110(a)(2)(D), 42 U.S.C. § 7410(a)(2)(D), ELR STAT. 42210 (SIPs must include programs for the regulation of modification or construction of any "stationary source"); § 110(a)(2)(I), 42 U.S.C. § 7410(a)(2)(I), ELR STAT. 42210 (SIPs must provide that after June 29, 1979, no "major stationary source" may be constructed or modified in a nonattainment area without a revised SIP); and § 112, 42 U.S.C. § 7412, ELR STAT. 42215 (national emission standards for "stationary sources" of hazardous air pollutants).

11. The Act also prescribes federal emission limits for new mobile sources, § 202, 42 U.S.C. § 7521, ELR STAT. 42240. Replacement of old cars with new, emission-control-equipped ones was intended to play a leading role in cleaning up auto pollution and smog.

12. The Act requires attainment of the primary (health-based) air quality standards within three years of their approval by EPA. Given the timetable for EPA review and approval, and the possibility of limited extensions of the deadline, all states should have been in attainment by the end of 1975.

13. The population of areas not meeting the ozone (smog) standard alone was 143,955,000 in 1980. NATIONAL COMMISSION ON AIR QUALITY, TO BREATH CLEAN AIR 113 (1981).

14. Pub. L. 95-95, 91 Stat. 685 (1977). Other major issues addressed in the amendment process were prevention of significant deterioration — the regulation of new construction in areas surpassing the air quality standards to protect the values associated with pristine air — and enforcement.

15. States that could demonstrate that nonattainment areas for ozone or carbon monoxide could not attain the NAAQS by the 1982 deadline could qualify for extensions to 1987. Clean Air Act § 172(a)(2), 42 U.S.C. § 7502(a)(2), ELR STAT. 42238. The price for the extension was a siting program for major new sources, an auto inspection and maintenance program, and identification of measures beyond those "reasonably available" necessary to attain the standards. Id. § 172(b)(11), 42 U.S.C. § 7502(b)(11), ELR STAT. 42238.

16. The nonattainment program is for the most part incorporated in a new Part D, Clean Air Act §§ 171-178, 42 U.S.C. § 7501-7508, ELR STAT. 42238. Cross references in § 172 to § 110 incorporate the requirements into the SIP program.

17. Clean Air Act § 172(b)(6), 42 U.S.C. § 7502(b)(6), ELR STAT. 42238.

18. The operative standard is "lowest achievable emission rate" or LAER. Clean Air Act § 173(2), 42 U.S.C. § 7503(2), ELR STAT. 42239.

19. In addition, to qualify for a permit, all other major stationary sources with the same owner in the state must be subject to emission limitations and in compliance or on a compliance schedule, and the SIP for the nonattainment area must be in effect. Clean Air Act § 173(3), (4), 42 U.S.C. § 7503(3), (4), ELR STAT. 42239.

20. Clean Air Act § 110(a)(2)(I), 42 U.S.C. § 7410(a)(2)(I), ELR STAT. 42210.

21. A major new source is one that emits more than 100 tons per year. All modifications of major stationary sources are covered as well, but EPA has established "de minimis" levels of 25-100 tons per year below which the modifications will not be regulated. 40 C.F.R. pt. 51, app. S, II(A)(10); 40 C.F.R. § 51.18(j)(1)(x).

22. See Rhinelander, supra note 4, at 10410-13 for an analysis of the economic benefits of the bubble policy.

23. 578 F.2d 319, 8 ELR 20164, 20277 (D.C. Cir. 1978).

24. 41 Fed. Reg. 55524 (1976).

25. 43 Fed. Reg. 23380 (1978).

26. 636 F.2d 323, 402, 10 ELR 20001, 20037 (D.C. Cir. 1979).

27. 44 Fed. Reg. 71779 (1979).

28. See, e.g., 44 Fed. Reg. 3277, 20372, 51924 (1979).

29. 45 Fed. Reg. 52676 (1980).

30. 685 F.2d 718, 12 ELR 20942 (D.C. Cir. 1982).

31. Justice Marshall, Rehnquist, and O'Connor did not participate in the decision.

32. 14 ELR at 20508, 20509 n.9.

33. Id. at 20509.

34. Id.

35. Id.

36. Id., quoting United States v. Shimer, 376 U.S. 374, 382, 383 (1961).

37. 14 ELR at 20510 n.17.

38. In many areas of the country, particularly the most industrialized States, the statutory goals were not attained. In 1976, the 94th Congress was confronted with this fundamental problem, as well as many others respecting pollution control. As always in this area, the legislative struggle was basically between interests seeking strict schemes to reduce pollution rapidly to eliminate its social costs and interests advancing the economic concern that strict schemes would retard industrial development with attendant social costs. The 94th Congress, confronting these competing interests, was unable to agree on what response was in the public interest: legislative proposals to deal with nonattainment failed to command the necessary consensus.

Id. at 20510 (footnotes omitted).

39. Id.

40. For the former proposition it quoted language in the Ruling to the effect that the Act makes economic considerations secondary to attainment. The quoted portion of the Ruling stated in part that "the Act does not allow economic growth to be accommodated at the expense of the public health." Id. at 20510 n.20. On the point about ambiguity in the applicability of the bubble policy, it cited the preamble to a 1979 rule in which the Agency noted that "some readers" of the Offset Ruling found it ambiguous on this point. Id. at 20510 n.20.

41. Id. at 20511.

42. Id., quoting H.R. REP. NO. 95-294, 95th Cong., 1st Sess. 211 (1977).

43. Id., quoting S. REP. NO. 95-127, 95th Cong., 1st Sess. 55 (1977).

44. Senator Muskie made the following remarks:

"I should note that the test for determining whether a new or modified source is subject to the EPA interpretative regulation [the Offset Ruling] — and to the permit requirements of the revised implementation plans under the conference bill — is whether the source will emit a pollutant into an area which is exceeding a national ambient air quality standard for that pollutant — or precursor. Thus, a new source is still subject to such requirements as 'lowest achievable emission rate' even if it is constructed as a replacement for an older facility resulting in a net reduction from previous emission levels.

"A source — including an existing facility ordered to convert to coal — is subject to all the nonattainment requirements as a modified source if it makes any physical change which increases the amount of any air pollutant for the standards in the area are exceeded." 123 Cong. Rec. 26847 (1977).

14 ELR at 20511.

45. Id. at 20511-13.

46. Id. at 20512.

47. Id.

48. Id. at 20513.

49. See Brief for Respondents at 24-26, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 14 ELR 20507 (U.S. June 25, 1984) (hereinafter cited as NRDC Brief).

50. Id. at 25.

51. 14 ELR at 20513 n.34.

52. Id. at 20514. In a curious footnote the Court mentioned that Senator Muskie had not attaked EPA's NSPS bubble during the amendment process, perhaps implying that the Senator did not believe new source bubbles were inconsistent with the Act. Id. at 20514 n.35.

53. Id. at 20514.

54. NRDC's brief expressly argued that the purposes found by the Court in the House Committee Report, supra note 42, were reflected in specific changes made in the nonattainment program as drafted in the 1977 Amendments and were intended to have no broader significance. NRDC Brief, supra note 49, at 36-37.

55. Id.

56. Ironically, by the time the issue reached the Supreme Court, New York was formally siding with NRDC, having joined in an amicus brief filed on behalf of several states.

57. 14 ELR at 20514 n.37. The Court quoted L. LAVE & G. OMENN, CLEANING THE AIR: REFORMING THE CLEAN AIR ACT 28 (1981) for the proposition that "[b]y giving a plant manager flexibility to find the places and processes within a plant that control emissions most cheaply, pollution control can be achieved more quickly and cheaply."

58. 685 F.2d 718, 727 n.41, 12 ELR 20942, 20947-48 n.41.

59. 103 S. Ct. 2856, 13 ELR 20672 1983).

60. 14 ELR at 20514.

61. Id.

62. Id.

63. Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policy-making responsibilites may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches." TVA v. Hill, 437 U.S. 153, 195 (1978).

64. The Court cited the basic judicial review and deference cases, 14 ELR at 20508-09, and notes 9-14.

65. A formula for judicial review of administrative action may afford grounds for certitude but cannot assure certainty of application. Some scope for judicial discretion in applying the formula can be avoided only by falsifying the actual process of judging or by using the formula as an instrument of futile casuistry. The ultimate reliance for the fair operation of any standard [of judicial review] is a judiciary of high competence and character and the constant play of an informed professional critique upon its work.

Since the precise way in which courts interfere with agency findings cannot be imprisoned within any form of words, new formulas attempting to rephrase the old are not likely to be more helpful than the old. There are no talismanic words that can avoid the process of judgment.

Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488-489 (1951) (Frankfurter, J.).

66. The Court did not state that it was applying such a test, and the part of its opinion in which it resolved the issues does not directly apply the test either. It simply said that the legislative history is ambiguous. See supra text accompanying note 53. Nonetheless, in reviewing the legislative history earlier, the Court found no specific references to the definition of "source" in the nonattainment provisions, and would look no deeper than several general statements of purpose. See 14 ELR at 20511. The Court rejected NRDC's invitation to analyze those general statements in the context of either the requirements of the new source review program or the relationship of the alternative definitions of "source" to Sen. Muskie's statement implying the need for a broadly applicable new source review program. See supra text accompanying notes 51-52.

67. See supra note 63.

68. The Clean Air Act history on economic development purpose was not found in many places, but it was in the House Committee Report, supra notes 42, and was stated in unambiguous terms.

69. The Court recognized that "Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences." 14 ELR at 20514. This does not provide a very useful test of when the courts have gone too far into policy issues, however.

70. The Court's admonition that judges should defer to agencies on issues raised by competing purposes in legislation, because these issues are policy matters, suggests a departure from established reasons for deference. EPA does not necessarily have any special expertise in these issues, as for instance on technical subjects like air quality modeling. Moreover, that Congress directed review of all national Clean Air Act rules to the D.C. Circuit suggests that it intended that court to develop a special understanding of the complex legislation that would facilitate interpretation. See Clean Air Act § 307, 42 U.S.C. § 7607, ELR STAT. 42257.

71. 14 ELR at 20508.

72. This is not the way the D.C. Circuit structured its opinion, but it did conclude that statute and legislative history were ambiguous, 12 ELR at 20945, and that its controlling precedent addressed the issue of statutory purpose, id. at 20947.

73. Nos. 83-1013, -1373, 52 U.S.L.W. 3783 (U.S. cert. granted Apr. 30, 1984).

74. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

75. Brief for the United States Environmental Protection Agency at 17, Chemical Manufacturers Ass'n v. Natural Resources Defense Council, Inc. (filed July 6, 1984).

76. Brief for Respondent, Chemical Manufacturers Ass'n v. Natural Resources Defense Council, Inc. (filed Aug. 20, 1984).

77. For an examination of the issues in this case and an explanation of the fundamentally different factors variance's origin in a Supreme Court opinion, see Want, Third Circuit Reopens Basic Water Act Issues by Invalidating FDF Variances, 14 ELR 10047 (Feb. 1984).

78. See State Farm Mutual Automobile Ins. Co. v. Dept. of Transportation, 680 F.2d 206 (D.C. Cir. 1982) (Rescission of rule requires especially intensive review) aff'd on other issues sub nom. Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 103 S. Ct. 2856, 13 ELR 20672 (1983). See also Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 683 F.2d 752, 12 ELR 20833 (3d Cir. 1982). The court overturned EPA's indefinite postponement of EPA's pretreatment rules, ruling that the procedural requirements of the Administrative Procedure Act, 5 U.S.C. §§ 500-576, ELR STAT. 41001, will be as strictly enforced in regulatory reform cases as in promulgation of regulations.

79. Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co., 103 S. Ct. 2856, 13 ELR 20672 (1983). The Court rejected the D.C. Circuit's conclusion that an agency was subject to a stricter standard of review when it reversed regulations implementing a clearly stated congressional policy.

80. An agency can deprive itself of deference, however, by walking "a path of such tortured vascillation and indecision that no help is to be gained in that quarter." Secretary of the Interior v. California, 104 S. Ct. 656, 660 n.6, 14 ELR 20129, 20131 n.6 (1984).

81. One of the distinguishing features of Chevron is that it is not a record case. EPA did not have studies to back up its decision to use a dual definition in 1980 and had no better information in 1981. In this context it seems likely that if EPA had to support its assertion that the plantwide definition is consistent with the clean air policies of the nonattainment program on the basis of the bubble's alleged positive effects on clean-up incentives, it would have failed. Combined with the backstop of nonattainment planning requirements, this record weakness is less serious.

82. See NRDC, Petition for Rehearing at 3-7, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 14 ELR 20507 (U.S. June 25, 1984) (petition filed July 20, 1984) (The plain language and legislative history show that Congress intended "facility" and "building" to mean something less than plant).

83. See supra note 49.

84. Brief for the Administrator of the Environmental Protection Agency at 21, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 14 ELR 20507 (U.S. June 25, 1984) (brief filed Aug. 1983). This argument reportedly was not in the draft brief prepared by EPA. Interview with William Pedersen, Associate General Counsel for Air, Noise and Radiation (Aug. 29, 1984).

85. The purpose of the new source review program was to ensure that significant new growth could be allowed while moving toward attainment in specified ways.

86. See e.g., Rhinelander, supra note 4.

87. NRDC relied heavily on (1) the absence of any evidence in the record or any claims in EPA's arguments to the Court that the new source bubble would reduce nonattainment pollution in the aggregate, NRDC Brief, supra note 49, at 45-46; and the fact that the bubble allowed industry to escape four pollution-reducing requirements in exchange for partial compliance with the offset rule, NRDC Brief, supra note 49, at 24-26.

88. See Rhinelander, supra note 4, at 10411-12.

89. The first shoe was Vermont Yankee Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 8 ELR 20288 (1978), in which the Court barred judges from requiring agencies to establish procedures not required by statute.

90. For a discussion of the need for a "critical mass" of bubbles to make EPA's overall emission trading program effective, see Comment, EPA Approves New Jersey Generic Bubble Rule, Develops Consolidated Guidance for Controlled Trading Program, 11 ELR 10119 (1981).

91. The overall emission trading guidance, in the works for over five years, see Comment, supra note 90, has still not been issued in final form.One of the sticking points has been whether and under what conditions to allow trades in nonattainment areas. Among the options under consideration by EPA in early 1984 were: (1) (Regional Position) to trading in nonattainment lacking required attainment demonstrations unless the trades are part of the submittal required by EPA's "Guidance Document for Correction of Part D SIP's for Nonattainment Areas"; (2) (Office of the General Counsel Position) allow only trades that would achieve "real progress toward an approved plan and attainment"; (3) (Office of Policy, Planning, and Evaluation Option) allow trading subject to a RACT baseline for all sources in the trade, a 20 percent net emission reduction below the baseline, and a substantial air quality benefit." Memorandum on Trades in Post-1982 Nonattainment Areas Without Demonstrations of Attainment, from T. Helms, Chairman Standing Committee on Emission Trading to Joseph A. Cannon, (EPA Feb. 1, 1984).

92. In ASARCO, the D.C. Circuit overturned a bubble provision in the nonferrous smelter industry NSPS. See supra text accompanying note 23.

93. Petition for rulemaking to amend 60 C.F.R. subpt. B, submitted by Central Illinois Public Service Co., Oct. 1, 1982. See 13 Env't Rep. (BNA) (Current Developments) 1577 (1983).

94. S. REP. NO. 97-666, 97th Cong., 2d Sess. 42 (1982).