| Litigation Under the Clean Air Act |
| [3 ELR 10007]
Introduction |
| The Clean Air Act Amendments of 19701 give wide powers to the Administrator of the Environmental Protection Agency to establish standards for air quality, to approve or modify state proposed plans for achieving and maintaining that quality, and to regulate new or modified emission sources (including automobiles, stationary sources and sources of hazardous pollutants). As might be expected, the Administrator's exercise of his powers in these areas — which affect virtually all phases of the American economy — has been the subject of extensive litigation brought both by environmentalists and industry representatives. By mid-February, 1973, ELR knows of more than 100 lawsuits which raise Clean Air Act issues. This Comment will bring ELR readers up to date on the current litigation under the Act as well as suggesting how some of the pending litigation ought to be decided. |
| Although the Act is lengthy and complex, and its provisions highly interdependent, the basic scheme proposed by it is not. Some understanding of the pattern of the Act may provide a basic order to the litigation. Five [3 ELR 10008] sections of the Act have provoked the bulk of the litigation: the national ambient air quality standards (Section 109), the state implementation plans (Section 110), the standards for new stationary sources (Section 111), the hazardous air pollution controls (Section 112), and the controls on motor vehicle emissions (Title II, Sections 201 et seq). This Comment will not deal with the auto emission litigation, since those suits raise special problems best dealt with separately. As to the other controls mentioned, the Administrator sets two uniform national standards for each pollutant determining the maximum amount of certain pollutants whicy may lawfully be found in the ambient air anywhere in the nation. The states then submit plans to theAdministrator for approval which set out how they are going to go about meeting those ambient air standards in their state. In addition to the national ambient standards just referred to, the Administrator sets two other types of standards. These two standards control emissions from or performance of individual sources and are independent of the ambient air standards just mentioned. The first of these emission standards sets nationwide limits which sources of hazardous pollutants must meet in a limited time. The second sets nationwide new stationary source standards which certain industrial categories of sources must meet if they are modified (or newly constructed) after the regulations are in effect. It is important to note that these controls all operate simultaneously; in the case of any given factory, one or all of the sets of standards may apply. It is possible to imagine, for example, that a factory producing mercury and sulphuric acid batteries might be controlled (as to its mercury operations) as a source of hazardous pollutants, (as to its sulphuric acid operations) as a new stationary source, and (as to fumes, dust and traffic-related pollutants) as a facility to be controlled under a state implementation plan. |
| The following paragraphs set out this basic pattern in more detail. |
| Air Quality Criteria Documents and National Ambient Air Quality Standards |
| The first class of controls imposed by the Act is designed to protect and improve air quality generally and to ensure that there are nationwide minimum ambient air standards. These ambient air quality standards must be based on "the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare." (Section 108(a)(2)) Prior to the passage of the 1970 amendments, the Department of Health, Education and Welfare had published compilations of scientific data on certain pollutants; that function was transferred to EPA.2 These compilations are known as Air Quality Criteria. Section 108 of the Act calls upon the Administrator to issue within 30 days after the passage of the Act (and from time to time thereafter) a list of pollutants arising from numerous sources (other than ones for which the old HEW Criteria Documents exist) which he believes to be harmful. Having compiled and published that list in the Federal Register, he is required to publish Air Quality Criteria for those pollutants within 12 months. The Air Quality Criteria procedure insures that the Administrator is presented with the opinion of natural scientists when he makes policy decisions. A related sub-section (Section 108(b)) calls upon the Administrator to issue information on appropriate pollution control techniques for each pollutant covered by an Air Quality Criteria. This procedure insures that the Administrator is aware of technological options (including the costs involved) when he makes policy decisions.3 |
| The culmination of this fact-finding procedure is the promulgation of National Ambient Air Quality Standards. An air quality standard is contained in a document published in the Federal Register which sets on a uniform nationwide basis two permissible levels of air pollution for a particular substance. (The two levels are the Primary and Secondary National Ambient Air Quality Standards discussed below.) Section 109 of the Act requires the Administrator to propose air quality standards within 30 days after the passage of the Act for any pollutant for which HEW had already prepared in Air Quality Criterion document. In the case of pollutants for which no HEW Air Quality Criteria exist, the Administrator is instructed to propose standards at the time he publishes the relevant Air Quality Criterion. (HEW had promulgated criteria covering sulfur oxides, particulate matter, carbon monoxide, hydrocarbons and photochemical oxidants. EPA has added nitrogen oxides.) |
| Ambient air quality standards are generally expressed in micrograms of the pollutant per cubic meter, with an alternative statement in terms of parts per million. The standards also give time ranges — such as "annual arithmetic mean" or "maximum 24-hour concentration not to be exceeded more than once per year" — for the measurement of the pollutants. The regulations establishing the ambient air standards contain detailed technical instructions which establish the measuring techniques to be used in enforcing the standards. |
| As noted above, there are two numerical limits which each air quality standard establishes. The first limit is the National Primary Ambient Air Quality Standard. This is the level of air quality which the Administrator judges is necessary to protect public health (Section 109(b)(1)). The second limit is the National Secondary Ambient Air Quality Standard. This is the level of air quality necessary to protect the "public welfare" from [3 ELR 10009] "any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." The phrase "public welfare" is broadly defined to include without limitation, |
| effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being. (Section 302(h)). |
| As might be expected, affected industries and others may disagree concerning the exact levels of the primary and secondary national ambient air quality standards. Yet only one such standard — the secondary standard for oxides of sulfur — has been challenged in court. See Kennecott Copper Company v. Environmental Protection Agency, 2 ELR 20116, (D.C.Cir.1972), discussed below, at 3 ELR 10010. |
| State Implementation Plans |
| Once the federal government, acting through the Administrator, has decided on a nationwide basis what the maximum ambient level of a pollutant shall be, then individual states are expected to take the measures necessary to achieve those nationwide standards. The Act requires the states to set out in writing exactly how they intend to meet the federally established standards. The measures which states may take to control the air quality within their jurisdiction through their state implementation plan can be quite wide-ranging. For example, individual factories may be forced to set up compliance schedules for controlling their emissions, and transportation controls, including limitations on the use of private automobiles, may be imposed. National Primary Ambient Air Quality standards must be met "as expeditiously as practicable but … in no case later than three years from the date of approval" of the plan [Section 110(a)(2)(A)(i)] (unless an extension pursuant to Section 110(e)(1) is given, and that extension is limited to 2 years). National Secondary Ambient Air Quality standards must be met within a "reasonable" time (Section 110(a)(2)(A)(ii)). The written state plans are called State Implementation Plans and must be approved by the Administrator. Sub-sections 110(2)(A)-(H) contain eight requirements which a state implementation plan must meet before the Administrator may approve it; the Supreme Court has accepted certiorari on a case which may require, in addition to the enumerated standards, that the Administrator not approve a plan which permits any significant deterioration in the present air quality of a given area. See the discussion of Sierra Club v. Ruckelshaus, 2 ELR 20262 (D.D.C. May 30, 1972), aff'd per curiam, 2 ELR 20656 (D.C.Cir. Nov. 1, 1972), cert. granted, 41 U.S.L.W. 3387 (Jan. 15, 1973), below. If the Administrator disapproves a plan in whole or in part he must promulgate an alternate plan which will assure that the state meets the relevant national standards within the permitted time. His substitute plan has the force of law. The Act has detailed requirements as to the procedures and public hearings which states must follow for adopting their implementation plans; those requirements have been supplemented by requlations issued by the Administrator (40 C.F.R. Pt. 51). |
| Challenges to State Implementation Plans. |
| After each original state implementation plan or an alternate federally imposed plan is adopted, persons wishing to challenge any feature of the plan have 30 days within which to bring suit "in the appropriate circuit;" thereafter, judicial consideration of the plan as a whole may not be raised in an enforcement action. The law is unclear as to the relationship between Section 307 of the Act (which imposes the 30 day deadline for challenges to promulgated plans noted above) and Section 304 (which permits citizens to challenge any non-discretionary action of the Administrator). This problem is discussed later in this Comment. |
| The federal approval of state implementation plans is not complete, but as might be expected, the Administrator's actions so far have generated a flurry of litigation. Portions of that massive litigation are discussed below at 3 ELR 10011. In addition ELR has assembled a chart, complete through March 3, 1973, showing on a state by state basis which sections of each state's plan have been approved or disapproved by EPA (3 ELR 10031. |
| Hazardous Pollutants |
| The Administrator has the power to promulgate nationwide standards for control of the emission of air pollutants which are so dangerous that they |
| may cause of contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness. |
| These emission controls on hazardous pollutants so dangerous that they may be thought of as poisons are stringent and apply to individual sources. The Administrator is instructed to set the standards "at the level which in his judgment provides an ample margin of safety to protect the public health" [emphasis added]. |
| The Administrator must publish and periodically revise a list of these hazardous air pollutants. On March 31, 1971, he proposed such a list. Within 180 days he must then propose emission standards which will become effective after a public hearing and not more than 180 additional days. When such hazardous emission standards become effective, then any new source of that hazardous pollutant (or any existing source which is modified) must comply with the standard immediately; existing sources must comply after a transition period. The Administrator proposed standards for beryllium, asbestos and mercury on December 7, 1971; after a delay of more than a year, and in response to a lawsuit (Environmental Defense Fund v. Environmental Protection Agency, 3 ELR 20173), the Administrator will soon issue final regulations. |
| Standards of Performance for New Stationary Sources. |
| The Act empowers the Administrator to establish [3 ELR 10010] standards of performance for new stationary sources. The Administrator much publish and revise from time to time lists of stationary sources by broad category (such as paper mills or steel foundries) and then establish standards for permissible air pollution from that source category. He must include any category "if he determines it may contribute significantly to air pollution which causes or contributes to the endangerment of public health or welfare." The standards of performance which he may select for any given class of stationary sources should reflect: |
| the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated. |
| If states have adequate programs for implementing and enforcing the national standards of performance with respect to individual new stationary sources, the Administrator has the authority to delegate his powers to the states.New stationary source standards have been promulgated for fossil fuel-fired steam generators, large incinerators, Portland cement plants, and nitric and sulfuric acid plants. The new stationary source standards are, of course, in addition to the ambient air quality standards. The new stationary source standards have also been litigated and that litigation is discussed below. |
| This brief description of the Clean Air Act does not, of course, begin to exhaust the controls which the Act imposes. A major category (deferred for discussion at a later date) is the control of motor vehicle emissions under Title II of the Act (the National Emission Standards Act). The Administrator also has the power to regulate fuel additives and aircraft and aircraft engine emissions. There are recommended emergency episode procedures permitting shutdown of facilities during high pollution episodes. And there are procedures by which the Administrator may take control and implement state plans in cases where states have failed to act to meet federal standards. This Comment will treat the litigation in four areas: the Ambient Air Quality Standards, the State Implementation Plans, the Hazardous Air Pollutant Standards and the Standards of Performance for New Stationary Sources. |
| Ambient Air Quality Standards |
| As of December 31, 1972, the Administrator has set national primary and secondary ambient air quality standards for sulfur oxides, particulate matter, carbon monoxide, photochemical oxidants, hydrocarbons and nitrogen dioxide. (40 C.F.R. Pt. 50-January, 1971 edition supplemented by 37 Fed. Reg. 9577). In view of the key role which the national ambient air quality standards play in beginning the process which culminates in actual control strategies, it is surprising that only one standard (the sulfur oxide standard) has been challenged. The legal challenge to the suit illuminates the relationship between science and public policy which the Act mandates. |
| Section 109(b)(1) states that the National Primary Ambient Air Quality standards shall be "based on" the criteria document and must allow an "adequate margin of safety." Section 109(b)(2) requires that the National Secondary Ambient Air Quality standard simply be "based on" the criteria document, without any statutory requirement of a margin. The criteria document for oxides of sulfur (Air Quality Criteria for Sulfur Oxides, January, 1969, Department of Health, Education and Welfare) gives some support for a figure lower than 60 micrograms per cubic meter — annual arithmetic mean. The Resume — a short summary with no independent legal significance — speaks only of observed effects at 85 micrograms per cubic meter. The Administrator set the primary standard for oxides of sulfur at 80 micrograms per cubic meter and the secondary standard at 60 micrograms per cubic meter (40 C.F.R. Sections 50.4 and 50.5). Kennecott Copper Corporation, a large copper producer whose smelters produce oxides of sulfur during production, argued that the national secondary ambient air quality standard was unlawful because it was "based on" a document which would give support only for the proposition that the public welfare was harmed at 85 micrograms per cubic meter. The disparity, Kennecott argued, was increased by the deliberate omission of the phrase "allowing an adequate margin of safety" (which appears as to primary standards) from the statutory language concerning secondary standards. |
| The Administrator and the Natural Resources Defense Council (intervenors) argued that the Criteria, in contrast to its Resume, did lend support to the lower figure. The court refused to be drawn into a discussion of that issue. Instead, the court stated that it was impossible to determine whether the Administrator had "based" his standard on the Criteria at all, since he had failed to articulate his reasoning for adopting the 60 microgram figure.4 Making clear that the Clean Air Act did not require anything like a full Administrative Procedure Act rule-making proceeding, the court did ask the Administrator "to supply an implementing statement that will enlighten the court as to the basis on which he reached the 60 standard from the material in [3 ELR 10011] the Criteria." Kennecott Copper Corp. v. Ruckelshaus, 2 ELR 20166 (D.C.Cir. Feb. 18, 1972). |
| On May 12, 1972 (37 Fed. Reg. 9577), the Administrator filed a statement setting forth the variables which he had considered in establishing the secondary standard. The court invited comments from the parties. Kennecott objected to the sufficiency of the Administrator's explanations and asked for further court proceedings. Natural Resources Defense Council, which had earlier supported the promulgated annual standard, moved on the basis of the material supplied by EPA to have the court hold that the secondary air quality standard was invalid because it failed to protect the public welfare values as the Act required. NRDC argued that the standard ought to be lower than 60 micrograms. Kennecott responded by arguing that NRDC's new position on the annual standard (based on the new information supplied by the Administrator) demonstrated that the group lacked the requisite interest in the controversy to give it standing and therefore asked that they be dismissed as an intervenor. The court reserved judgment on on the issues and no decision has been entered. The proceedings have been stayed for ninety days pursuant to a motion agreed to by the parties, in order to give the Administrator time to prepare and release a revised secondary standard for oxides of sulfur. |
| ELR understands that the new information which the Administrator is considering would result in revision of both the secondary standard for sulfur oxides and the Criteria document upon which the standard is based. Instead of setting annual and 24-hour standards, the new standard would rely on studies showing harm to vegetation occurring from short-term (one to eight hours) exposures to sulfur oxides. If the new standards and Criteria are promulgated, it may be expected that the Administrator will attempt to set out fully how the new standard is "based on" the relevant Criteria document. In any case, the promulgation of the new standard would moot the Kennecott case, although another challenge could be mounted by the company. |
| The Act is not free from ambiguity as to whether there is a time limit within which ambient air quality standards may be challenged. Section 307(b)(1) (which generally sets time limits on challenges of the Administrator's determinations) states: |
| A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, … may be filed only in the United States Court of Appeals for the District of Columbia. A petition for review of the Administrator's action in approving or promulgating any implementation plan under section 110 or section 111(d) may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval, or after such date if such petition is based solely on grounds arising after such 30th day. |
| Section 307(b) states |
| Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement. |
| The grammar of the first paragraph as a whole makes it uncertain whether the phrase "any such petition" in the last sentence refers only to petitions for review of state implementation plans or, more broadly, to any of the various petitions which might be brought challenging the Administrator's actions. It seems more likely that Congress intended that the nationwide determinations which underlie the state implementation plans (which themselves clearly can be attacked only within 30 days approval or promulgation) should be immune from judicial review after a limited period. In any case, no standard other than the secondary standard for sulfur oxides has been challenged. As Kennecott Copper's experience demonstrates, a scientific challenge to the national ambient air standards presents difficult matters of proof, and the Administrator can undertake new reviews which return the challenger to the beginning without a clear victory. Perhaps this explains why many litigants have preferred to question the Administrator's judgments concerning the state implementation plans. |
| State Implementation Plans |
| In dramatic contrast to the National Ambient Air Quality standards, the State Implementation Plans have been the subject of extensive litigation. Moreover, it is unclear whether the courts have correctly applied the provisions of the Act requiring that state plans be challenged within a limited time and only in circuit courts. |
| Section 304 or Section 307? |
| Section 307, quoted above, purports to limit challenges to state implementation plans to the circuit court level and further purports to confer jurisdiction on those courts only if a plan is approved or promulgated and then challenged within 30 days. The Third Circuit, in Getty Oil Company (Eastern Operations) Inc. v. Ruckelshaus, 2 ELR 20683 (Sept. 12, 1972), held that any matter which might have been brought up in a Section 307 proceeding must be dealt with in that type of proceeding and not in some other challenge. Getty Oil, which purchased electricity generated for it by Delmarva Power, had let the time for challenging the Delaware plan pass without bringing any action under Section 307. The fuel which Delmarva Power used to generate Getty's power exceeded the sulfur content standards of the Delaware plan.5 Getty was in the process of asking the state's air control agency for a variance under the state plan when the Administrator brought an enforcement action under the federal Act. Getty argued that it should have more time to comply with the state plan on the grounds that the national primary ambient air [3 ELR 10012] quality standards were already being met in the area, and that Delmarva Power's plant was the only plant which met the description of the state implementation plan. The Third Circuit held that the questions which Getty was raising were questions which properly belonged in a Section 307 proceeding. Since Getty had let time pass, Section 307(b)(2) precluded a federal court from considering them. |
| On the other hand, a district court in Colorado has decided that Section 307 does not provide the exclusive statutory basis for attacking a state implementation plan. In Anaconda Company v. Ruckelshaus, 3 ELR 20024 (D.Colo.Dec. 19, 1972), the court upheld a challenge to Montana's state implementation plan. The Anaconda case is interesting for several of the points it raises, and is discussed in more detail later in this section (see 3 ELR 10018). On the jurisdictional point, the court found that since the Administrator had wrongly denied Anaconda an adjudicatory hearing and had wrongly refused to prepare an environmental impact statement, therefore he had failed to "perform [an] act or duty under this Act which is not discretionary with the Administrator" and was liable to suit under the provisions of Section 304, the citizen suit provision of the Act. Section 304 of the Act states: |
| [A]ny person may commerce a civil action on his own behalf — |
| (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this Act which is not discretionary with the Administrator. |
| The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, … to order the Administrator to perform such act or duty, … |
| The court cited the district court's holding in Sierra Club v. Ruckelshaus, supra, where against an argument that the plaintiff ought to bring suit under Section 307 rather than Section 304, the court said, |
| The Administrator challenges the jurisdiction of this court to hear this case on the theory that the plaintiff [Sierra Club] should wait until the Administrator approves the plans and then appeal the approval under [Section 307]. We disagree. It is our judgment that plaintiffs have a right to bring the action in this Court at this juncture under [Section 304]…. |
| … Plaintiff's claim that the Administrator's interpretation of the extent of his authority is clearly erroneous and that his declination to assert his authority … amounts to a failure to perform a nondiscretionary act or duty. |
| It would appear that such an allegation is precisely the type of claim which Congress … intended interested citizens to raise in the district courts. In view of this clear jurisdictional grant, the Administrator's assertion that plaintiffs should await his approval of the state plans (formulated, in part, pursuant to allegedly illegal regulation) and then proceed to appeal his approval under [Section 307] is, in our opinion, untenable. 2 ELR at 20263. |
| It is interesting to note that although the Anaconda court cites Getty Oil later in a different context, it did not cite that case as to jurisdiction. In Getty Oil the company raised a number of objections to the enforcement action which the Administrator brought against them. In particular they argued that the Administrator should have prepared a NEPA statement and that the facts made it clear that Delmarva Power was the only company which would be affected by the Delaware implementation plan. The Third Circuit refused to entertain Getty's complaints on the ground that challenges to a state plan must be raised in a Section 307 action or not at all: |
| Even if we were to agree in Getty's premise that EPA is subject to the NEPA requirement, such an issue is properly raised in a section 307 proceeding. To require an impact statement at the enforcement stage would do substantial harm to the Congressional purpose of obtaining expeditious compliance with primary and secondary air standards. Failure to utilize the section 307 proceeding forecloses review in a civil or criminal proceeding for enforcement.2 ELR at 20687. |
| Clearly the case for excluding challenges to a state plan at the enforcement level is strong in view of the explicit language of Section 307(b)(2). Yet the Third Circuit went further, stating that an action by EPA could not be challenged except under Section 307 even though the Agency may have neglected to perform a necessary legal duty prior to taking action. |
| The Anaconda court's use of the Sierra Club v. Ruckelshaus, case to support its theory of jurisdiction under Section 304 ignores the clear distinctions between the cases and undermines the distinction which Congress intended to draw. In Sierra Club, the Administrator had announced in Congressional hearings and by means of regulations that he did not intend to require that state implementation plans provide for non-degradation of air quality. The district court found that the Clean Air Act required that state implementation plans contain non-degradation provisions, and the Administrator was thus (in the words of Section 304) failing "to perform any act or duty under this Act which is not discretionary with the Administrator" [emphasis added]. In contrast, in Anaconda the company was complaining that as to a specific state implementation plan, there had been two errors of omission: first, a duty imposed by the Administrative Procedure Act had been neglected (i.e., no adjudicatory hearing); and second, a duty imposed by the National Environmental Policy Act had been neglected (i.e., no impact statement). Neither of these duties arise under the Clean Air Act as such and ought not be bases for Section 304 jurisdiction. Moreover, the type of determination being made by the Administrator in Sierra Club v. Ruckelshaus differs fundamentally from the particular, fact-related attack which the Anaconda court was considering. On the one hand, the Sierra Club was not attacking a specific state implementation plan, but was questioning regulations promulgated by the [3 ELR 10013] Administrator which affected all state implementation plans. On the other, Anaconda was challenging a particular state's plan on the grounds that the plan affected Anaconda in a particularly burdensome way. If Section 307 means anything, it must mean that such particularized challenges are to be heard at the Circuit Court level in a Section 307 proceeding. Moreover, if Getty Oil is correct on this point, even challenges which rely on failure to comply with NEPA must be raised only in a Section 307 proceeding when a state implementation plan is at issue. In short, Section 307, with its broad scope of review, is the exclusive avenue for challenges to individual state plans. On appeal, the Tenth Circuit ought to rule that the questions which Anaconda Company raised may only be considered on the circuit court level after a plan is promulgated in a Section 307 proceeding. |
| The exact relationship between Sections 307 and 304 is difficult to parse at this stage of the law's development. The better view may be that attacks on single state implementation plans, including those attacks raising issues outside the Clean Air Act, should go through the Section 307 route. On the other hand challenges which deal with duties or acts within the four corners of the Act and which deal with regulations, actions or omissions affecting many state implementation plans at once should have the option of proceeding either under Section 307 or Section 304. Both businessmen and government need the stability of a decided rule if they are to make plans which will be consistent with long range economic planning. The time period contained within Section 307 should be seen as a help in that effort. |
| Section 307 and the "Appropriate Circuit" |
| Even within the confines of Section 307 itself there is another ambiguity only recently resolved. This ambiguity is illuminated by tracing the history of Natural Resources Defense Council's suits against the Administrator's uniform, nationwide decisions concerning state implementation plans. When the Administrator announced approvals and disapprovals of state plans initially on May 31, 1972 (37 Fed. Reg. 10842), he granted a wholesale two year extension to any area requiring transportation control measures to achieve the national standards. The Administrator also approved plans which failed to include provisions to maintain air quality in the face of growth. Finally, he approved plans which did not mention controls on transportation. Natural Resources Defense Council (NRDC) considered all three of those actions to be violations of the Act, and on June 7, 1972 filed suit in the Court of Appeals for the District of Columbia Circuit, claiming Section 307 jurisdiction. (Natural Resources Defense Council v. Environmental Protection Agency, Docket No. 72-1522). Section 307(b)(1) states that the Administrator's action "in approving or promulgating any implementation plan under Section 110 or Section 111(d) may be filed only in the United States Court of Appeals for the appropriate circuit" [emphasis added]. NRDC believed that since the actions taken by the Administrator were uniform throughout the country, the appropriate circuit is the circuit which Congress selected to decide other matters uniformly under the Act, viz., the D.C. Circuit. However, faced with the running of the 30 day time limit in Section 307 (from May 31, 1972), NRDC moved the D.C. Circuit to rule that it was the appropriate circuit. The court refused to so rule. Therefore, to protect jurisdiction in the event that the question should be resolved against them, NRDC immediately filed identical suits in the remaining ten circuits. Thereafter, those ten circuits were petitioned to transfer the suits to the District of Columbia. The First, Fourth, Sixth, Eighth and Tenth Circuits ordered transfer, while the Second, Third, Fifth, Seventh and Ninth Circuits have denied transfer but delayed further action until the D.C. Circuit acted. |
| Only the First Circuit, which held that the case ought to be transferred, has written an opinion, concerning transfer (although the D.C. Circuit's order treats the questions, as will be noted later). Natural Resources Defense Council v. Environmental Protection Agency, 2 ELR 20639 (August 23, 1972). The First Circuit noted that challenges to ambient air quality standards and hazardous substance standards are centralized in the District of Columbia. On the other hand, Section 110(f)(2)(b) expressly states that certain judicial challenges shall be heard "by the United States court of appeals for the circuit which includes such State." Based on this contrast, the First Circuit found it difficult to accept that Congress intended the statute to be interpreted to require multiple hearings as EPA suggested. Indeed, in some cases, the route suggested by the Administrator would be impossible. In plans affecting air quality regions, the region might not coincide with the jurisdiction of the circuit courts. (An egregious example of this is the Memphis Air Quality Region which falls within the jurisdiction of three different circuits.) This suggests that Congress generally intended questions of centralized decision to be made in the D.C. Circuit and did not intend to force questions concerning state implementation plans mechanically to the several circuits. |
| The issue of sound judicial management also suggests that the government is incorrect. The Administrator acted uniformly in approving plans with the defects claimed by NRDC. The government now appears in a strange posture arguing that 11 different circuit courts of appeal ought to be construing exactly the same action with the possibility of coming out with varying results. Such an occurrence would be a misuse of judicial energy and might hamper the Administrator's congressional mandate to have the air quality problems of the nation handled expeditiously and uniformly. |
| On January 31, 1973, the D.C. Circuit Court of Appeals expressly adopted the arguments of the First Circuit and stated that a flexible approach was needed. [3 ELR 10014] (Natural Resources Defense Council v. Environmental Protection Agency, 3 ELR 20155): |
| Applying this flexible approach to the cases presently before us, it is clear from the record that all of these cases raise identical legal issues. None of these issues involve facts or laws peculiar to any one jurisdiction; rather, all concern uniform determinations of nationwide effect made by the Administrator. Requiring these cases to be prosecuted in the several circuits will only lead to delay on a question where time is literally of the essence, and will needlessly tax the agency's legal resources. We therefore hold that we have jurisdiction to hear these cases. 3 ELR at 20155. |
| The court continued, protecting its decision as to the District of Columbia, that: |
| We also note, before considering the merits, that regardless of whether this court has jurisdiction to review the approval of implementation plans of jurisdictions other than the District of Columbia, all parties agree that we have jurisdiction to review the legality of the Administrator's approval of the implementation plan for the District of Columbia and surrounding Maryland and Virginia suburbs, and should our jurisdiction as to other areas successfully be challenged, our order is intended to remain in force limited to the local area. 3 ELR at 20155. |
| This holding is peculiar in light of the court's immediately preceding paragraph which states: |
| In our own metropolitan area of the District of Columbia and the surrounding suburbs, for example, adoption of the Administrator's narrow interpretation of the statute would require review of the Administrator's approval of the D.C. metropolitan area implementation plans to take place both in our own court and the Court of Appeals for the Fourth Circuit. 3 ELR at 20155. |
| The result reached by the First Circuit and the D.C. Circuit appears to be correct. NRDC is moving to dismiss the suits in the several circuits, and EPA by complying with the court's order on a nationwide basis has shown that it accepts the D.C. Circuit's jurisdiction to decide the case for all the states. |
| No Discretion Under the Act's Deadlines |
| One other case should be considered before discussing the substance of challenges to state implementation plans.We have already noted that there is a conflict as to whether challengers should use Section 307 or 304. We have noted that there was conflict as a whether, for centralized decisions, the "appropriate circuit" is the D.C. Circuit. Happily, there is no conflict as to whether the Administrator has discretion to delay issuing a state implementation plan. In Riverside v. Ruckelshaus, 3 ELR 20043 (C.D. Calif. November 16, 1972), the court held that the promulgation of a substitute plan within 6 months of federal disapproval of a state plan is a nondiscretionary duty which may not be omitted by the Administrator. In Riverside, the plaintiffs alleged that the Administrator had disapproved the California state implementation plan, among other reasons, because it failed to state how the South Coast Air Basin (roughly the Los Angeles Metropolitan region) would meet the national primary standards on photochemical oxidants ("smog"). The suit, filed September 6, 1972, sought to compel the Administrator to comply with the statutory deadline. On September 22, 1972 the Administrator proposed substitute plans (37 Fed. Reg. 19812-15, 19829-35); those plans, it was charged, still failed to deal with the problem. By an announcement of the same day (37 Fed. Reg. 19829), the Administrator stated that by February 15, 1973, he would propose transportation controls for the region which would make it possible for the national ambient air standards to be met. That timetable failed to meet the explicit standards of the Act, which require the Administrator's substitute plan to be ready within 6 months after the date the original plan ought to have been submitted, which in California's case would have required promulgation by July 31, 1972. |
| The court recognized that the plaintiffs had failed to give the Administrator 60 days in which to correct the defect as required by Section 304(a)(2). However, the Court held that there had been substantial compliance since there had been more than 60 days between the filing of the complaint (September 6) and the rendering of the court's judgment (November 16). During that 60 day period, the Administrator made no effort to correct his inaction, but indeed announced that he would promulgate a plan by February 15, 1973. The court ordered the Administrator to publish in the Federal Register by January 15, 1973, a plan for attaining the national standards within the time allowed by the Act, including any necessary transportation controls and land-use controls. The plan announced by the Administrator at a news conference on January 15, 1973 and published in the Federal Register of January 22, 1973 (38 Fed. Reg. 2194), includes mandatory retrofitting of automobiles, gasoline rationing up to 82% during the smoggiest months of the year and other strict controls. |
| The legal point resolved in the Riverside case is, of course, that the Administrator can be forced to comply with the deadlines established by Congress, even though he may feel that given deadlines are difficult or technically impossible to attain.6 At a briefing for environmental attorneys, the Administrator stated that he feels uncomfortable attempting to promulgate standards within the statutory deadline when he believes that there is insufficient scientific basis to support the standard; the courts have made it clear that the Act does not permit this discretion. |
| Suits Challenging Individual State Implementation Plans |
| A large number of suits have been brought which challenge various parts of state implementation plans. These suits (filed within 30 days after approval) are at [3 ELR 10015] various stages in litigation; the initial approvals and disapprovals of state implementation plans occurred on May 31, 1972. Since that time there have been other partial approvals appearing from time to time in the Federal Register. A chart showing the status of approvals and disapprovals on a state-by-state basis appears at the end of this Comment. To date there have been some 65 suits filed challenging the actions of the Administrator (including the 11 NRDC suits mentioned above). Certain of these actions are suits brought to challenge the Administrator's disapproval of plans. Those actions appear to be premature. The Act, in Section 307(b)(1) confers federal jurisdiction for "review of the Administrator's action in approving or promulgating any implementation plan under section 110" [emphasis added]. It would appear that there is no Section 307 jurisdiction to review state plans until the Administrator has acted. The Ninth Circuit has ruled both ways on this question. In Kennecott Copper Corporation v. Environmental Protection Agency, Ninth Circuit Docket Number 72-2016 (Complaint filed June 7, 1972), Kennecott sought to review the May 31, 1972 disapproval of Nevada's state implementation plan. EPA moved to dismiss, but that motion was denied on December 1. But in Kennecott Copper v. Environmental Protection Agency, Ninth Circuit Docket Number 72-2488 (complaint filed August 24, 1972), seeking review of the July 27, 1972 disapproval of Arizona's implementation plan, EPA's motion to dismiss on the grounds that Section 307 applied only to approvals was granted. Kennecott moved for reconsideration on the basis of conflicting decisions within the circuit; the court has asked for a list of all cases in which EPA has moved to dismiss on these grounds and apparently will reconsider all similar cases within its jurisdiction at one time. |
| In addition to the 11 suits filed by NRDC discussed above, NRDC's Project on Clean Air has filed 14 suits challenging specific points of the implementation plans of various states. The specific challenges will not be discussed in this comment. As an example of the points raised, however, the following issues are being argued in Natural Resources Defense Council v. Environmental Protection Agency, Fifth Circuit Docket Number 72-2402, challenging the Georgia plan: that the plan includes a confidentiality provision which inhibits public access to emission data in violation of Section 110(a) (2)(f)(iv), that the plan permits granting of variances which may be inconsistent with the requirements of the federal postponement procedures established by Section 110(f), that the plan improperly relies upon diluting emissions rather than limiting them absolutely, and that the plan permits the state officials to take improper economic considerations into account in applying provisions of the plan. Copies of many of NRDC's briefs are available from ELI's Facsimilie Service; readers wishing further information should write for particulars. |
| Maintenance of Natural Ambient Standards, Once Achieved |
| NRDC's suit, Natural Resources Defense Council v. Environmental Protection Agency, 3 ELR 20155 (D.C. Cir. Jan. 31, 1973), discussed above in the context of Section 307 suits, also raised substantive issues concerning the Administrator's actions. Section 110(a)(2) (B) states that the Administrator shall approve state implementation plans if he determines that they include: |
| emission limitations, schedules and timetables for compliance with such limitations and such other measures as may be necessary to insure attainment and maintenance of such primary or secondary standards including, but not limited to, land-use and transportation controls. |
| The fact that the Act specifies "maintenance" as one of the requirements for a valid state implementation plan forecloses any argument that a plan omitting maintenance control strategies could be approved. Likewise, the statute itself answers the question whether it is lawful to impose transportation controls if it is "necessary to insure attainment … of … primary or secondary standards." Automatic extension of the time to meet transportation control deadlines without individualized consideration of the fact situation in each state appears prima facie to violate the statute. Nonetheless, when the Administrator initially announced approvals and disapprovals of state implementation plans on May 31, 1972 (37 Fed. Reg. 10842) he stated: |
| The Administrator has determined that the lead time necessary for development, adoption and implementation of transportation control measures generally precludes their application on any significant scale within the next 3 years, i.e., they will not be available soon enough to permit attainment of the primary standards within the time period prescribed by the Act…. Accordingly, it is the Administrator's judgment that 2-year extensions are justified in cases where transportation control measures will be necessary. (37 Fed. Reg. at 10845) |
| The D.C. Circuit found that the Administrator had acted unlawfully, although "in the best of faith in attempting to comply with the difficult responsibilities imposed upon him by Congress." The court found that the Administrator had failed to follow the procedures established by the Act and in particular found that extensions under Sections 110(e) may be granted only after a proper plan is filed. A proper plan must show exactly what measures the state must take to meet the national ambient standards by 1975. Only when that plan is submitted may the governor of a state ask for a two year extension. The court ordered the Administrator to rescind the extension given to states as to transportation controls, to rescind the two-year extensions granted for implementation plans, to require submission of complete plans from every state by April 15, 1973, showing how primary standards could be attained by May 31, 1975, and to refrain from granting wholesale approval [3 ELR 10016] of applications for extensions. In addition, the Administrator also was ordered to review the maintenance provisions of any presently approved state plan and to disapprovethose plans which would not meet the standards of the Act and the relevant regulations. |
| Judge MacKinnon, in a concurring opinion, stated that while he was agreeing with the result of the majority in the hopes that "something might be gained by the states and the agency towards achieving the results sought by the Act if the states are required to literally comply with all the formal steps provided by the statute," he felt the result mandated by the Act may be unreasonable. He noted that the Administrator had stated in the May 31, 1972 Federal Register that he knew no practical method to evaluate transportation control measures. Judge MacKinnon suggested that if the Administrator knew no practical method of evaluating them at that time, it was unlikely that he would have any better idea after plans were submitted since the lack of knowledge proceeded from lack of any presently existing data or experience. But that opinion may not be correct. With many states submitting transportation control measures, a wealth of information and alternate methodology should emerge. This information will inevitably be useful to the Administrator in making his nationwide judgments. |
| The Administrator's initial response to the court's order in Natural Resources Defense Council v. Environmental Protection Agency is contained in a regulation appearing at 38 Fed. Reg. 6279 (March 8, 1973). The Administrator notes that some control of the effects of growth will result from the emission limitations imposed by other sections of the Act. But he concedes that these will not be sufficient: |
| In the Administrator's judgment, it is also necessary to require States to review, and where necessary prevent, the construction of facilities which may result in increased emissions from motor vehicle activity or emissions from stationary sources that could cause or contribute to violations of national ambient air quality standards. Such facilities generally are designated "complex sources." EPA guidelines did not require this and the review of State plans indicates that no State included such a provision in its implementation plan. Accordingly, in order to comply with the court order, it has been determined that all State plans must be disapproved to the extent that they do not contain provisions which will permit the review, and provide the authority to prevent, the construction, modification, or operatioin of complex sources at a location where emissions associated with such source would result in violation of a national standard or the State's control strategy. 38 Fed. Reg. at 6279. |
| The wide sweep of this announcement is emphasized by the examples which the Administrator provides of what constitutes a "complex source": |
| A complex source is generally defined as a facility that has or leads to secondary or adjunctive activity which emits or may emit a pollutant for which there is a national standard. These sources include, but are not limited to: |
| (1) Shopping centers; |
| (2) Sports complexes; |
| (3) Drive-in theaters; |
| (4) Parking lots and garages; |
| (5) Residential, commercial, industrial, or institutional developments; |
| (6) Amusement parks and recreational areas; |
| (7) Highways; |
| (8) Sewer, water, power, and gas lines; |
| and other such facilities which will result in increased emissions from motor vehicles or other stationary sources. 38 Fed. Reg. at 6279-80 |
| Through the Clean Air Act, it is possible that the Nation has backed into a national urban land use policy.7 |
| NEPA Compliance and the Clean Air Act |
| Another important set of challenges to the state implementation plans has come from industries contesting the power of the Administrator to issue a plan without a full environmental impact statement under NEPA. At least 20 suits have raised this issue already; as the issues develop in other challenge suits, it is likely that this number will rise. In one of these cases, Commonwealth Edison Company v. EPA, 7th Circuit, Docket Number 72-1498, filed June 25, 1972, (challenging the May 31, 1972 approval of the Illinois plan) the court has denied a motion for remand to the Agency for filing a NEPA statement. No other courts have ruled on this issue in the context of a Section 307 attack on a state plan. Of course the issue has been raised and decided in Anaconda Company v. Ruckelshaus, supra, where the court ruled a NEPA statement was necessary.8 (In addition, in Duquesne Light Company v. EPA (3rd Circuit Docket Number 72-1542), the court remanded the Administrator's approval of Pennsylvania's plan to the Agency. Although the remand was without opinion, one of the grounds for the petitioner's motion to remand was that no NEPA statement had been filed.) |
| The argument that EPA must file an environmental impact statement for its actions — even those actions which are environmentally protective — is not a new one. ELR has discussed this issue a number of times. See e.g., Comment: Kalur v. Resor, Water Quality and NEPA's Applications to NEPA, 2 ELR 10025, 10029-30. In its comments, ELR has argued that activities of the Agency should be subject to the requirements of NEPA, because the Act spoke to all federal agencies and injected the requirement of open decision making into environmental trade-offs. Recognizing that compliance with NEPA may inconvenience and even on occasion delay environmentally desirable regulation, ELR adheres to the position that the requirements of [3 ELR 10017] NEPA apply to all activities of EPA which constitute "major Federal actions significantly affecting the quality of the human environment" unless Congress has specifically decreed otherwise. |
| The CEQ guidelines suggesting a general exemption from NEPA for EPA look to parts of the legislative history of NEPA to justify their conclusion. That legislative history is not clear. Senator Muskie's continuing attempts to "clarify" or restate the legislative history have likewise failed to assist courts or lawyers in understanding NEPA's original intent. During the debate on the 1972 amendments to the Federal Water Pollution Control Act, for example, Senator Muskie stated: |
| … in my judgment it was clearly intended at the time Congress enacted NEPA that environmental regulatory agencies such as those authorized by the Federal Water Pollution Control Act and the Clean Air Act would not be subject to NEPA's provisions… it was clearly understood… that it was the intention of NEPA to put mission-oriented agencies, not the environmental enhancement agencies, under an environmental stricture and that the environmental enhancement or improvement agencies such as the Federal Water Pollution Control Administration and the Clean Air Act would not be subject to NEPA's provisions. 118 Cong.Rec. S-16,885 (daily ed. October 4, 1972). |
| If the legislative history of NEPA were as clear as Senator Muskie believed it to be, it is surprising that a number of courts have held to the contrary and that Congress felt it was necessary in Section 511(c) of the Federal Water Pollution Control Act Amendments of 1972 to oust NEPA procedural compliance. |
| The D.C. Circuit, in an opinion dealing with auto emission standards under the Act, International Harvester Company v. Ruckelshaus, 3 ELR 20133 (D.C. Cir. Feb. 10, 1973), stated that, as to a request by Chrysler that EPA prepare an impact statement on its denial of a one-year extension on the 1975 auto emission control deadline, no NEPA statement was required. But this footnote does not support the conclusion that NEPA does not apply to EPA's Clean Air Act duties generally. The Court said: |
| The purpose of NEPA is to assure presentation to Congress and the public of the environmental impact of executive action. Here Congress has already decided that the environmental dangers require the statutory standards. The only executive decision is of a one year deferral, and the very stuff of such a decision, at least with a public interest determination, is to assess, inter alia, the environmental consequences of action and inaction…. Although we do not reach the question whether EPA is automatically and completely exempt from NEPA, we see little need in requiring a NEPA statement from an agency whose raison d'etre is the protection of the environment and whose decision on suspension is necessarily infused with the environmental considerations to pertinent to Congress in designing the statutory framework. To require a "statement," in addition to a decision setting forth the same considerations, would be a legalism carried to the extreme. 3 ELR at 20150, footnote 130, [emphasis added] |
| The language of the footnote makes it clear that the court is ruling solely on the question where there is no environmental issue which the Agency has discretion to consider; Congress' decision has foreclosed any discretion within the Agency as to standards and has left it solely with the task of determining as a technical matter whether the standards can be met in 1975 or 1976.Despite the court's loose statement about statements from an agency "whose raison d'etre is the protection of the environment," the final sentence — which shows that the court believed the Administrator's ruling on the standards suspension fulfilled the role of a NEPA statement — demonstrates that no general conclusion as to NEPA's application to EPA or to Clean Air Act matters as a whole can be drawn from the footnote. |
| A fair-minded observer has to admit that the administrative problems which the strict, short timetables mandated by the Clean Air Act Amendments raise are significant and may call for some adjusting of the normal NEPA commenting process.At the time the Clean Air Act was passed, air quality criteria documents existed for five pollutants. Section 110 gave the states a deadline for submitting implementation plans demonstrating how they would achieve the standards. EPA did not provide guidelines to the states as to the content of state implementation plans until August 14, 1971. The Act requires public hearings not less than 30 days prior to the submission date, January 31, 1972. Therefore, it is not surprising that some states were tardy in submitting plans. That tardiness cut into the four months which EPA was given to review all the plans. Representatives of EPA have stated that giving each plan a full review within the four month period granted by Congress strained the Agency's resources; if within that four month period the "normal" 90-day NEPA comment period for an impact statement had to be included. The Agency claims that the task would be impossible. That "impossible" situation forms the basis for an argument that NEPA doesn't apply to implementation plans. But NEPA does not mandate nay particular method or time period for comment. At the time Congress passed the Act (December 31, 1970), the Council on Environmental Policy had only issued Interim Guidelines for the preparation of NEPA statements (see 1 ELR 46001). Those Guidelines did not mention any set period for the commenting process; the 90-day period appeared in the Final Guidelines, published April 23, 1971 (See ELR 46049). Therefore, it can not fairly be construed that Congress intended to oust NEPA from the Clean Air Act proceedings by setting impossibly tight deadlines. |
| Even though one may conclude that the terms of the Clean Air Act do not oust NEPA statement preparation, the Agency has a difficult admindistrative problem. One possible solution to the problem would be to recognize that NEPA statement preparation and release serves several functions, among which opportunity for [3 ELR 10018] public and agency comment is arguably not paramount. It might be reasonable to ask the Agency to prepare an impact statement as the decision on a state plan is proceeding.9 Likewise, in the future EPA might promulgate regulations requiring states to provide interim versions of implementation plans to the Agency so that time for environmental review would be maximized. See Silva v. Rommey, 3 ELR 20082 (1st Cir. 1973). The statement would articulate the costs and trade-offs which the final approval or disapproval of the plan included. The NEPA statement would help the final decisonmaker (the Administrator) know the environmental costs of his decision as he made it. More importantly, the statement, which would be released as the decision is made, would serve to ventilate the inner workings of the decision so that future decisions could be more informed and (presumably) therefore better. For state implementation plan approval and disapproval, for example, actual practice has shown that the process of approvals and disapprovals has stretched over many months while the Administrator alternately disapproves or approves various sections of plans from states. The process of disapproval and approval is accompanied by extensive informal communications with state officials; yet there is no easily available public record of the trade-offs which the Administrator has made. If the Agency were to prepare NEPA statements — a task which need not be overwhelming if the Agency is creative about using coordinated or cross-referenced statements in the case of similar decisions —public debate would be sharpened on the real issues perceived by the Administrator; future decision making could be that much more informed. Moreover, the Administrator would have to confront other environmental costs directly, and he would have to consider alternatives openly. . Finally, Congress and the President, as well as the public, would learn the posibilities for future alternative action. |
| Adjudicatory Hearings or Rule-making Proceedings? |
| A second major thread which runs through the challenges to the state implementation plans by industry is the claim that the Administrator must undertake a full, adjudicatory hearing pursuant to the Administrative Procedure Act before he may promulgate a Plan. The only decided case on the issue is Anaconda v. Ruckelshaus, 3 ELR 20024 (D.Colo. Dec. 19, 1972), which has been discussed above both in the context of jurisdiction and NEPA compliance. The case is interesting on its facts. The Montana State Board of Health had proposed an implementation control strategy for sulphur oxides control from non-ferrous smelters (i.e., copper) which required "control consistent with the most advanced 'state of the art'" — a far stricter standard than the federal requirements. The Governor refused to certify that section of Montana's implementation plan to EPA. That refusal to certify causes a citizen's suit to be filed, Bradley v. Ruckelshaus, (D. Mont. Docket Number 2196, filed July 24, 1972), seeking to compel the Administrator to accept the Board's plan. The suit was dropped when the Administrator proposed his plan for sulphur oxides (July 27, 1972, 37 Fed. Reg. 15102) which was suitably tough. A public hearing on the plan was held by EPA at which Anaconda's attorneys asked for and were denied an adjudicatory hearing.As noted above, Anaconda brought suit and the court, finding it had jurisdiction, ordered an adjudicatory hearing and the preparation of a NEPA statement. According to the district court, the Company was entitled to a hearing at which it could present evidence, subpoena witness and cross-examine them to show that the Montana regulations ask more than federal law permits and to demonstrate that conflicting technical and factual evidence underlies the decision. |
| The government had argued that the promulgation of a state implementation plan was an informal rule making proceeding. The court found two factors which convinced it that it was adjudicatory. First, the Anaconda plant was the only plant which would be affected by the rule: |
| The so-called rule which is under consideration has to do with emissions of sulphur dioxide in Deer Lodge County, Montana, in a quantity of 7,040 pounds per hour. There is one and only one company at which this so-called rule is directed and that is the only company it can be directed at within the foreseeable future. This is a special rule. It is a single shot attack, aimed at the plaintiff [Anaconda] and only at the plaintiff, and plaintiff's rights cannot be destroyed without due process of law under the guise of rule making. 3 ELR at 20026. |
| Second, the court found that the facts which underlay the proposed rule were adjudicative facts, bitterly contested. In particular, Anaconda asserted that a critical test was conducted with an instrument which was badly out of adjustment. Given the presence of these two factors, the court found that the standard setting proceeding should have been adjudicative, not rule making. |
| The facts contained in the court's opinion make it appear as if the Environmental Protection Agency did not behave in a wise fashion. According to the court, the proposed emission limitation was based on a single 24-hour reading "with a Beckman 906-A ambient air sampling instrument which had not been calibrated and which was not functioning properly." The presence of Administrative carelessness does not determine whether an adjudicative hearing is required. The real basis for the court's holding appears to be that the state implementation plan for oxides of sulfur applies only to Anaconda's smelter. For the Court, this alone seems to transform what otherwise would be a rule making proceeding into an adjudication. But the court ignores [3 ELR 10019] completely that the Administrator is charged with looking at state implementation plans from a broad policy viewpoint and is setting quasi-legislative standards when he acts. He must consider factors which lie outside any particular record — including, for example, the controls which neighboring states in the same air shed are imposing — in making his decision. If in a particular case the standards which he adopts cause hardship amounting to a taking, an appeal to a court on constitutional grounds is available. But that appeal is not grounded on the nature of the hearing involved; it proceeds from the "confiscatory" application of the rule. |
| An examination of the Act itself suggests that Congress did not intend to require an adjudicatory hearing for the adoptin of state implementation plans. Under Section 110, the Administrator is ordered to propose a plan (or a section of a plan) for any state which neglects its primary duty. Section 110(c) states: |
| If such State held no public hearing associated with respect to such plan (or revision thereof), the Administrator shall provide opportunity for such hearing within such State on any proposed regulation. |
| In contrast, if the Administrator is considering a postponement of application of an existing plan to any class of moving sources or stationary source, Section 110(f)(2)(A) requires: |
| Any determination under paragraph (1) shall (i) be made on the record after notice to interested persons and opportunity for hearing, (ii) be based upon a fair evaluation of the entire record at such hearing, and (iii) include a statement setting forth in detail the findins and conclusions upon which the determination is based. |
| Of course the phrase "on the record after … opportunity for … hearing" comes directly from Section 5 of the Administrative Procedure Act, dealing with adjudicatory hearings. This clear distinction in language within the very same section strongly suggests that Congress intended a rule making proceeding in one case and an adjudicatory hearing in the other. |
| The court also does not acknowledge that there is a general rule that the lack of an adjudicatory hearing may be corrected by a later court review. The leading case is Bowles v. Willingham, 321 U.S. 503 (1944). In that case, Mr. Justice Douglas stated: |
| Here Congress has provided for judicial review of the Administrator's action. To be sure, that review comes after the order has been promulgated; and no provision for a stay is made. But as we have held in Yakus v. United States [321 U.S. 414 (1944)] that review satisfies the requirement of due process. 321 U.S. 503,520. |
| Davis (who would rather that the administrative hearing be carried out fully) does concede, |
| Many cases uphold administrative action on the ground that opportunity for de novo judicial review supplies administrative procedural deficiencies. Davis, Treatise, Section 7.10. |
| See also, Fuchs, "Procedure in Administrative Rule-Making," 52 Harv. L. Rev. 259 (1938) ("If the regulation is subject to challenge in all of its aspects after its promulgation, the need of advance formalities is reduced or eliminated.") |
| The Section 307 review process gives ample, orderly opportunity for review of any implementation plan adopted in an unfair fashion. The route which the Anaconda court has suggested — a challenge in Colorado under Section 304 with an appeal to the Tenth Circuit, then an administrative adjudicatory hearing, promulgation of a rule, followed possibly by a challenge in the Ninth Circuit10 under Section 307 — has little to recommend it, even from Anaconda Company's point of view. There is no suggestion in the Anaconda case that an adjudicatory hearing would immunize the Administrator's decision from a Section 307 review. On the other hand, there is much made of the money which the Company will waste if it is uncertain which set of standards it must follow. If the Court is genuinely concerned that delay will increase the costs to the Company, then the Company's private interests should lie in speedy determination by a single review under Section 307 at the circuit court level. |
| The Anaconda court nowhere suggests that all state implementation plans must be adopted only after an adjudicatory-type hearing. Only the special facts of the case make that rule applicable. The court mentions Getty Oil (Eastern Operations), Inc. v. EPA, 2 ELR 20683 (3rd Cir. 1972) in connection with the holding that EPA must file an impact statement, the court does not mention that the fact situations were similar in the two cases. In Getty, as in Anaconda, there was only one plant which would be affected by the state implementation plan. In Getty, as in Anaconda, there was the question whether the company's behavior would violate the federal ambient air quality standards. Yet in Getty, the Third Circuit held that such questions belonged exclusively in a Section 307 proceeding, not in some other action. As the court remarks: |
| The Constitution requires an opportunity at a meaningful time and in a meaningful manner for a hearing appropriate to the nature of the case. "The formality and procedural prerequisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings." Boddie v. Connecticut, 401 U.S. 371, at 378 (1971); see also Ewing v. Mytinger and Casselberry, Inc. 339 U.S. 594 (1950). 2 ELR at 20685. |
| Beyond the solicitous observation that |
| … we cannot refrain from commenting that we think that economy of judicial time will result from having a full evidentiary hearing before a district judge as compared with an evidentiary hearing before an overloaded Court of Appeals which is the type of trial sought by the defendants (3 ELR at 20029). |
| [3 ELR 10020]
the Anaconda court does not address the issue that another forum exists for hearing the Anaconda Company's complaints. |
| The Environmental Protection Agency has asked the Department of Justice to appeal the Anaconda decision. It is to be hoped that Tenth Circuit Court of Appeals will remand the case to the district court with instructions to dismiss for lack of jurisdiction. Anaconda Company should wait until the state implementation plan is promulgated by the Administrator. One may reasonably expect that the Administrator will be more careful in his readings and standard-setting on this round. But if the Company still finds room for objection to the promulgated standard, it should file a petition for review with the Ninth Circuit (which has jurisdiction over Montana), invoking Section 307 jurisdiction. |
| Sierra Club v. Ruckelshaus: Non-Degradation |
| Another important challenge to the method in which the Administrator has carried out his duties under the Act was raised by the Sierra Club in Sierra Club v. Ruckelshaus, supra. Reading Section 110(A)(2) of the Act suggests that the Administrator must consider the items listed in paragraphs (A) through (H) in deciding whether a state's implementation plan meets the standards of the Act and may be approved. But the preamble of the Act suggests that a paramount duty suffuses any action the Administrator may take. Section 101(b)(1) states that one of the purposes of the Act is |
| to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capcity of its population. |
| Moreover, the legislative history of the Act — and the administrative practice of the Department of Health, Education and Welfare under the prior Clean Air Act — all suggest that a primary motive of Congress in passing the 1970 Amendments was to make certain that air quality which was better than the standards established by the Administrator, should be maintained at that higher level rather than being permitted to deteriorate merely to the national ambient air standards. |
| The district court opinion, together with the documents in the case are available through the Environmental Law Institute. They deal exhaustively with the legislative history and the prior practice which will be only briefly treated here. A telling point is the Senate Report on the 1970 Clean Air Act Amendments (cited by the district court) which states: |
| In areas where current air pollution levels are already equal to or better than the air quality goals, the Secretary should not approve any implementation plan which does not provide, to the maximum extent practicable, for the continued maintenance of such ambient air quality. S.Rep No. 1196, 91st Cong., 2d Sess., at 11 (1970). |
| Even more telling is the schizophrenia which the Agency's regulations demonstrate. On the one hand, 40 C.F.R. Section 50.2(c) states: |
| The promulgation of national primary and secondary air quality standards shall not be considered in any manner to allow significant deterioration of existing air quality in any portion of any State. |
| On the other hand 40 C.F.R. Section 51.12(b) states: |
| In any region where measured or estimated ambient levels of a pollutant are below the levels specified by an applicable secondary standard, the State implementation plan shall set forth a control strategy which shall be adequate to prevent such ambient pollution levels from exceeding such secondary standard. |
| The Administrator stated during hearings held February 16-23, 1972, before the Senate Subcommittee on Air and Water Pollution of the State Public Works Committee that if the Supreme Court should affirm the holding of the lower court, he believed that he would have no congressionally-defined standard to judge when air in a region was "significantly" deteriorating in quality. At a later meeting of environmental attorneys he stated that he was concerned as a policy matter tht if there must be no deterioration of air quality in regions where air is purer, then additional growth in those areas will be halted and growth will be concentrated in the presently relatively dirty urban areas where substitutions between old polluters and new sources can be made. The Administrator suggested that this will tend to concentrate pollutants in areas where more people are located rather than achieving lower overall levels throughout the country by averaging. An attorney for the Sierra Club has stated that those fears are groundless. He noted that the Club had not asked for an absolute ban on all deterioration in air quality, but merely a ban on "significant" decline. The courts should be able to define, within some range initially suggested by the Administrator, whether the deterioration is more than significant. As to the dangers of concentrating pollutants, the Club expects that the new source standards and the secondary ambient air quality standards should be sufficient to protect the welfare of urban dwellers. If pollutants in an urban area are a danger, that suggests that the secondary ambient standards and national emission standards are deficient, not that cleaner parts of the country's air should be sacrificed. |
| The legislative record is so in favor of the position advocated by the Sierra Club that it would be surprising if the Supreme Court reversed the decision of the two courts below. The policy objections of the Administrator are objections which ought to be addressed to Congress rather than answered by the Court. |
| Hazardous Substance Regulation |
| The Clean Air Act mandates promulgation of standards limiting the emission of particularly hazardous air pollutants. Under Section 112 of the Act, the Administrator must propose standards and then issue final regulations 180 days later. On December 7, 1971, EPA issued proposed standards for three pollutants: asbestos, mercury and beryllium (36 Fed. Reg. 23239). By the following December, no final regulations had appeared. On December 4, 1972 Environmental Defense Fund brought suit under Section 304 to compel promulgation [3 ELR 10021] of the final standards. On a motion for summary judgment the district court ordered the Agency to publish final standards within 60 days. Environmental Defense Fund v. Environmental Protection Agency, 3 ELR 20173 (D.D.C. January 30, 1973). The plaintiffs have stated that they "would consider going to court again if the forthcoming standards are not adequate to protect the public health." |
| Although the Administrator has defneded his action on the grounds that there was insufficient scientific information on which to make a reasoned judgment in selecting a reasonable standard, it is disappointing the EPA has acted so slowly in implementing this section of the Act. Numerous other hazardous emissions could be identified, which, if limited under the stringent standards of Section 112, could be reasonably quickly removed from the ambient air. |
| Standards of Performance for New Stationary Sources |
| The Administrator has promulgated standards of performance for five categories of sources: fuel-fired steam generators, incinerators, Portland cement plants, nitric acid plants and sulfuric acid plants (36 Fed. Reg. 24876, December 23, 1971). Three of these standards have been challenged: sulfuric acid plants (Essex Chemical Corp. v. Ruckelshaus, filed January 21, 1972, D.C. Cir. Docket #72-1072), Portland cement plants (Portland Cement Association v. Ruckelshaus, filed January 21, 1972, D.C.Cir. Docket #72-1073) and fossil-fuel fired steam generators (Appalachian Power Co. v. Ruckelshaus, filed January 21, 1972, D.C. Cir. Docket #72-1079). The briefs in these three cases raise substantially the same issues. First, each claims that the requirement of Section 111 that |
| a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction) the Administrator determines has been adequately demonstrated [emphasis added] |
| had not been met since there was no adequate demonstration of the relevant technology. Second, each brief claims that the promulgated standard is inadequate because no environmental impact statement was filed prior to the adoption of the standard. The remarks made earlier in this Comment concerning NEPA's application to EPA are even more appropriate in the case of new source standards where the Administrator has more time in which to comply with both the time schedule of the Clean Air Act and of NEPA. |
| Whether the control technology for each of these complex manufacturing process has been adequately demonstrated is beyond the scope of this Comment. However, the challenge to the technology-based standards does raise a policy objection to the approach of the Clean Air Act in this provision. In cases where there is disagreement between the government regulators and the regulated industry as to the present state of technology, it will be the experts who testify as to the state of the art. But the fields which the Clean Air Act regulates are new, and experts may honestly come to different conclusions concerning whether a particular technique has been demonstrated. It may reasonably be expected that industry will have a greater economic power and interest in hiring experts than will the government. Therefore, in many disagreements about technological matters, the government will not be able to make as convincing a case as the experts hired by the interested parties. |
| Title II of the Clean Air Act (regulating moving emission sources such as automobiles and trucks) provides one contrast to a strictly technology-based scheme. Under Title II, absolute standards are established and the only relevance of demonstrated technology is to postpone the standards for one year.11 It appears likely that this statutory framework will provide a solution to the problem which Congress sought to solve. EPA has announced that three automobile manufacturers have developed prototype vehicles which meet the 1975 standards. This announcement will tend to make it more difficult for the major automobile manufacturers to persuade EPA or Congress that the task is technologically impossible. Another approach to avoiding "swearing contests" on the ability of technology to answer difficult problems is to institute some economic incentive scheme. Under this approach, sources of pollution are encouraged to minimize their costs by developing technologies to eliminate a given pollutant. The choice is left up to the source: suffer in the competitive market or develop the means to eliminate the pollution source.See Selig, Effluent Changes on Air and Water Pollution, ELI Monograph Series.12 |
| Conclusion |
| The litigation which has been reviewed above does not begin to exhaust the difficulties under the Act. At the minimum, of course, each time the Adminstrator proposes a new Air Quality Criteria Document, the process of setting national primary and secondary standards and adoption of state implementation plans begins anew for that pollutant. Similarly, hazardous pollutants and new source emission standards ought to continue to be promulgated. Although the first round of litigation which is now going on will answer many of the procedural questions concerning the Act, each new promulgation will be vulnerable to suit on the basis of its compliance with the standards contained within the Act. It may fairly be predicted that there will be a great deal more litigation under the Act. |
| 1. 42 U.S.C. §§ 1857 et seq. See ELR 41201 for the Act as amended including technical amendments passed late in 1971 and a chart of parallel section numbers. |
| 2. Reorganization Plan No. 3 of 1970, Section 3, ELR 48001. |
| 3. The advisory committees established by Section 108 of the Act do not have legal power to influence or change the decisions of the Administrator. They do serve, however, as valuable resources for information and viewpoints. State governments are also the beneficiary of the information which the Administrator must generate concerning pollution control techniques. See Section 108(b)(1). |
| 4. The court specifically finds that the statement produced by the Administrator originally satisfed the requirement in § 4 of the Administrative Procedure Act for a "concise general statement" of the basis and purpose of the regulation. But the court goes on to suggest that in some "contexts of fact, statutory framework and nature of action" the minimum requirements of the APA are not enough. In footnote 18 of the opinion, 2 ELR at 20119, the court explains as follows that "[t]hese precedents establish that in a particular case fairnessmay require more than the APA minimum, but are not to be taken as suggesting in any way that the court considers the kind of problems involved in environment regulations to require more than the written submissions specified by Congress." There is no further hint as to what facts, frameworks or actions cause the APA minimum to be insufficient. |
| 5. The fuel used by Delmarva Power was a waste product produced by Getty and sold to the power plant. Its sulfur content was around 7 1/2%. |
| 6. The same point is made in Environmental Defense Fund v. Environmental Protection Agency, 3 ELR 20173, and in Natural Resources Defense Council v. Environmental Protection Agency, 3 ELR 20155. |
| 7. By agreement of the parties, EPA has asked the court to modify its order to give the states more time within which to comply with the Federal Register notice. |
| 8. The court in Anaconda reviews the cases and the legislative history and concludes by reducing "the problem to a pure syllogism: Major premise: All federal agencies must file a NEPA statement. Minor premise: EPA is a federal agency. Conclusion: EPA must file a NEPA statement." See 3 ELR 20030-31. |
| 9. Natural Resources Defense Council v. Morton, 2 ELR 20071 (D.D.C. Feb. 1, 1972), requires that some commenting period be allowed. It does not directly decide the issue whether, in special cases, the commenting process may be severely limited because of a conflicting timetable mandated by another Act. |
| 10. Anaconda brought suit in Colorado since EPA's regional office was located there.Appeal from that court lies to the Tenth Circuit. However, a challenge under Section 307 lies to the Ninth Circuit, which has jurisdiction over Montana. It is possible to construct difficult puzzles concerning judicial management and jurisdiction in this fact situation. |
| 11. Of course, the availability of requisie technology is only one of the four conditions — all of which must be met — governing the granting of a one-year extension. See Section 202(b)(5)(D). |
| 12. The Monograph is available from the Environmental Law Institute Monograph Series, 1346 Connecticut Avenue, Suite 614, Washington, D.C. 20036, at $3.00 per copy, postpaid. |
3 ELR 10007 | Environmental Law Reporter | copyright © 1973 | All rights reserved
