30 ELR 10034 | Environmental Law Reporter | copyright © 2000 | All rights reserved

Run Over by American Trucking Part II: Can EPA Implement Revised Air Quality Standards?

Editors' Summary: In the second of two Articles, Professor Craig. N. Oren examines the controversial recent opinion, and subsequent denial of rehearing en banc, in American Trucking Ass'n v. U.S. Environmental Protection Agency, in which a panel ofthe D.C. Circuit Court of Appeals remanded EPA's air quality standards for ozone and particulate matter. In his first Article, Professor Oren analyzed the reasons, logic, alternatives to, and likely consequences of the court's remand of the air quality standards based on the delegation doctrine. In this month's Article, Professor Oren examines the court's holding that apparently requires EPA to enforce revised ozone standards only under Subpart 2 of Part D of the CAA.

The Article begins by describing EPA's approach to setting the revised ozone standards and, more specifically, how the Agency adopted its implementation strategy for the revised ozone NAAQS. The Article next discusses the language and provisions of the CAA on which the court relied in reaching its holding. The Article suggests that the decision means that EPA cannot require states to revise their implementation plans to include measures beyond what assures attainment of the previous ozone standard. The Article argues that such a holding conflicts with the CAA's language, structure, and legislative history. CAA § 181(a)(1) and other CAA sections appear to allow further implementation measures for the new revised standards. Moreover, the court's holding appears in conflict with the language and structure of Subpart 1 of Part D. Further, in addressing the policy behind the court's holding, the Article contends that allowing enforcement under Subpart 1 will not negate the congressional purpose behind Subpart 2. In addition, the Article asserts that the court ignored additional implementation measures that EPA authorizes during the CAA's pre-1990 practice of requiring additional control measures to implement revised ambient air quality standards, and failed to understand that Congress intended to tighten that approach rather than make it more lax. Thus, the Article concludes that the court should vacate the portion of its opinion addressing implementation of the revised standards and remand the matter to EPA for further consideration. EPA could then formulate a solution aided by notice and comment that would resolve the issue that Congress failed to address in the 1990 Amendments.

Professor of Law, Rutgers (The State University of New Jersey) School of Law—Camden. The author wishes to thank all who assisted him.

[30 ELR 10034]

In American Trucking Ass'n v. U.S. Environmental Protection Agency,¹ a split panel of the D.C. Circuit remanded to the U.S. Environmental Protection Agency (EPA) the revised air quality standards for ozone and particulate matter established by the Agency in 1997. As I wrote recently in these pages, the decision has aroused a great deal of controversy because the panel majority (Judge Stephen Williams, joined by Judge Douglas Ginsburg) invoked the delegation doctrine to set aside the Agency's standards and require that the Agency establish an "intelligible principle" to guide its standard-setting decisions.² The panel's recent refusal to retreat from its holding, and the sharp division of the full D.C. Circuit in denying rehearing en banc, will only increase dispute over the decision. Unfortunately, the D.C. Circuit has not adopted the suggestion of my earlier Article (and of Judge Lawrence Silberman in his dissent from the denial of rehearing en banc) that the arbitrary-and-capricious [30 ELR 10035] test, rather than the delegation doctrine, affords the best vehicle for reviewing EPA's standard-setting decisions.³

There is, however, another aspect to the court's decision that has drawn less attention: its holding, written by Judge Ginsburg and joined by Judge Williams, that any new ozone standard can be enforced only under Subpart 2 of Part D of the Clean Air Act (CAA).⁴ While the court's opinion is not clear—especially after the modifications made in the denial of rehearing—this holding appears to mean that the CAA does not give EPA authority to compel additional measures to implement a revised ozone standard.⁵

This holding is at least as important as the remand of the standards themselves. EPA, as I explained in my prior piece, can cope with the remand by re-articulating its explanation of its standard-setting decisions. This may be especially true now that it is clear, from the narrow denial of rehearing by the full D.C. Circuit, that the panel's use of the delegation doctrine is not endorsed by all of the circuit's more conservative judges and almost certainly does not command a majority of the current active membership of the circuit.⁶ Moreover, the panel majority seems to suggest, as my earlier Article did, that its delegation holding is less stringent than might first appear.⁷ In denying rehearing, the panel rejects EPA's suggested "intelligible principle"—that "the levels [of primary national ambient air quality standards] must be necessary for public health protection"⁸—but only on the narrow ground that the Agency had not used this principle to set the challenged standards. In this way the panel leaves open the possibility that EPA can use an "intelligible principle" that reflects little, if any, change in substantive policy.

The decision apparently denying EPA authority to require additional measures to enforce a revised standard poses a more serious obstacle. It means that even if EPA can explain its revised air quality standard for ozone to the court's satisfaction, the Agency cannot implement the new standard without new legislation from Congress. Such legislation seems unlikely in the current climate on Capitol Hill. In this way, the decision may stall efforts to remedy urban America's most serious air quality problem. The decision also has a more general significance. It illustrates that courts will make independent determinations about statutory meaning; in other words, that the effect of Chevron, U.S.A., Inc. v. Natural Resources Defense Council⁹ on judicial deference to statutory interpretation has been exaggerated.

As this Article explains, the court's decision appears incorrect. The court's decision does not take into account the relevant provisions of the statute, takes too narrow a view of Congress' purposes in enacting the 1990 Amendments to the CAA, and ignores the pre-1990 history of the issue. Nonetheless, the court acted correctly in not upholding EPA's statutory construction. The present situation seems much like Chevron: one in which Congress should be treated as having implicitly left a gap for the Agency to fill. Unfortunately, EPA did not fill in the gap as it normally would by responding to material comments on its proposed approach. Instead, EPA's decision was enunciated in an announcement by the White House that did not address the key legal and policy issues. The court should therefore have remanded to EPA with instructions to reconsider the matter and explain why the Agency believes that its approach is a better reading of the statute than the suggestions of commenters. This emphasizes a further moral I noted in my prior Article: that attempts by the White House to closely direct agency decisionmaking may undercut the legitimacy of that decisionmaking.¹⁰

The Statutory Background

Any attempt to understand the court's opinion must begin with an examination of the CAA.¹¹ Since 1970, the Act has authorized EPA to establish and periodically revise national ambient air quality standards (NAAQS)—standards that prescribe maximum permissible levels for pollutants in the outside air to which the public has access.¹² The air quality standards are of two types; primary standards must protect the "public health" with an adequate margin of safety,¹³ [30 ELR 10036] while secondary standards must protect "public welfare" from known or anticipated adverse effects.¹⁴

Once EPA establishes or revises an air quality standard, then each state must, within one year, submit a list designating each area in the state as either nonattainment (that is, in violation), attainment, or unclassifiable of the air quality standards for the particular pollutant.¹⁵ EPA then has two years to promulgate designations, along with any changes it deems appropriate.¹⁶ Usually, the next step is to have states prepare state implementation plans (SIPs) for EPA approval.¹⁷ These plans consist of measures—such as emission limits on sources and an enforcement program—sufficient to ensure that the state's air attains and maintains the levels of the air quality standards.¹⁸ In the case of the primary standards, the plan must provide for attainment as expeditiously as practicable, but not later than a specified deadline date¹⁹; for the secondary standards, attainment need only occur as expeditiously as practicable.²⁰ Because many kinds of new sources are regulated directly by the federal government, the SIPs usually focus on imposing requirements on existing sources that, in combination with the federal measures, will bring about timely attainment. If a state refuses to submit an approvable plan, EPA must prepare one of its own.²¹ In addition, EPA can—and in some cases, must—impose various kinds of sanctions against a state that fails to submit an approvable plan.²²

EPA's Approach

The issue facing EPA and the court is whether and how this process works when EPA revises an air quality standard. EPA asked for comment on how to implement its revised standards simultaneously with proposing the revised standards.²³ Like the proposed standards themselves, EPA's suggested implementation approach attracted a great deal of comment; the index alone to the docket on the implementation approach is over two inches thick.²⁴ But the two issues were resolved in disparate ways. EPA promulgated the standards themselves through the Agency's normal rulemaking process of responding extensively to material comments.²⁵ But the implementation strategy followed a different path. The day the standards were released, the White House published in the Federal Register a "Memorandum for the Administrator of the Environmental Protection Agency" prescribing how EPA would carry out the standards.²⁶ The "Memorandum" was accompanied by an "Implementation Plan" prepared by an "interagency Administration group."²⁷ Perhaps to demonstrate that this represented something other than ordinary agency action, the pronouncements were published in a single-wide column of large type, rather than the conventional triple-column agate.

Consequently, the Agency did not respond to comments in the Federal Register as it normally does.²⁸ Nor has EPA been willing to address the legal and policy issues raised by the Implementation Plan in further rulemakings implementing the plan; instead, the Agency has pronounced the issues to have been resolved by the interagency implementation plan.²⁹ Thus, the normal adversarial process for developing a record for judicial review was aborted.

The failure to have full discussion was especially serious because of the controversy surrounding the implementation strategy. In the case of EPA's new air quality standards for particulate matter, the Agency decided that it would declare the entire nation to be unclassifiable.³⁰ Hence, no area would be treated as a nonattainment area. In this way, implementation of the new particulate matter standards could be postponed until EPA has an opportunity to decide whether to revise, or even retain, them. This approach reflects the substantial uncertainty about the extent to which fine particulate matter contributes to sickness or death.³¹ It also had the practical advantage of placating industry; no one challenged the Agency's implementation strategy for this pollutant.³²

Ozone posed a thornier problem. Like the particulate matter standards, the new ozone standards would be more difficult for many areas to meet than the old ones.³³ But the Agency was unwilling to postpone implementation indefinitely. Hence EPA had to decide what would happen in areas that are classified in nonattainment of the new standards.

To do so, the Agency had to interpret Part D of Title I, the portion of the CAA that establishes detailed requirements [30 ELR 10037] for nonattainment areas.³⁴ Part D consists of Subpart 1, which establishes general requirements for nonattainment areas,³⁵ and a series of subparts containing specific provisions directed at attaining the primary—that is, health-based—ambient air quality standards for particular pollutants. Some of these provisions override the terms of Subpart 1. For instance, the latter requires areas to produce plans that demonstrate attainment of the primary standards within five to ten years following an area's designation as nonattainment³⁶; but areas are exempt from this deadline for pollutants for which specific timetables are established elsewhere in Part D.³⁷ Subpart 2 in turn classifies ozone primary nonattainment areas into five classes—Marginal, Moderate, and so on through Extreme—and establishes detailed attainment deadlines and emission control requirements for each class.³⁸ For example, Los Angeles, the nation's only Extreme nonattainment area, must demonstrate attainment by 2010 and is subject to the tightest emission control requirements.³⁹

EPA reasoned that Subpart 2's requirements are tied to the primary air quality standard for ozone that existed in 1990 when Congress enacted Subpart 2.⁴⁰ This judgment is based on the link between Subpart 2's classifications and the extent to which areas violated the ozone standard in the late 1980s.⁴¹ The Agency, therefore, concluded that only Subpart 1 applies to areas in nonattainment of the new standard.⁴² Subpart 1's attainment deadlines, rather than the specific deadlines for ozone contained in Subpart 2, would therefore govern the revised ozone standard. As a result, each area in nonattainment of the new standard would be required to submit a plan demonstrating how it would come into attainment by Subpart 1's five-year to ten-year deadline.⁴³

EPA's strategy had several disadvantages for industry. Perhaps the major one was that implementation of the new standard would rest largely on an expensive program to reduce emissions of nitrogen oxides that cross state lines.⁴⁴ Moreover, the Agency's strategy gave little relief to Los Angeles, which has the nation's worst ozone air quality problem. If, as the Agency anticipated, ozone designations were completed in 2000,⁴⁵ the Los Angeles area might have to submit a revision to its SIP demonstrating attainment by, at the latest, 2010—the same attainment date that applied to the less stringent ozone standard that existed in 1990. Finally, the Administration's attempts to sweeten the pot seemed dubious. In its implementation strategy, the White House announced creation of a special "transitional" classification for areas that attained the previous ozone standard but violate the new one. If such an area submitted its plan early, then, for instance, large new and modifying sources in the area would not be subject to the stringent requirements that usually apply in areas in violation of the air quality standards.⁴⁶ The rationale was evidently the Agency's hope that the program to curb interstate transport would be sufficient to guarantee attainment in these areas.⁴⁷ But the special treatment of these areas, as industry groups themselves pointed out, was legally dubious.⁴⁸ While the CAA creates a "transitional" category for ozone, that category is expressly intended for a far different situation,⁴⁹ and so EPA's approach would be vulnerable to challenge from environmental groups.⁵⁰

The Court's Decision

Hence a coalition of industry and states challenged the Agency's implementation strategy as contrary to the statute. It is not clear why the court decided to take up their claims. It is true, technically, that EPA's implementation decisions represented final agency action, especially given the Agency's refusal to reconsider them in subsequent rulemakings.⁵¹ Still, the court would have done well to have given more than two sentences of consideration to the question of whether the issue was ripe—that is, appropriate at this time—for judicial review.⁵² EPA's implementation [30 ELR 10038] strategy, despite the interagency memo, left many important questions unanswered; the Agency had yet to decide, for instance, the deadlines for attaining the new standard in areas that had not attained the old standard. Strictly speaking, EPA's standard-setting and standard-implementation decisions were separate, and so the court could easily have deferred consideration of implementation issues. This would have been especially appropriate because the court remanded the standard-setting decisions themselves, thus preventing EPA from putting the new standards into effect any time soon. Instead, the court could have postponed this issue until EPA produced a new set of standards that pass judicial muster. Following this course might have given the court an opportunity to resolve the implementation issue in a less hurried atmosphere. As it was, the implementation problem was one of many issues the court considered in its opinion, and consequently the court could spare only about five printed pages—from a majority decision of twenty-five pages—for implementation of the standards. Indeed, even the parties raising challenges on the implementation issue devoted relatively little time to it in their briefs.⁵³

The portion of the court's opinion on this issue begins by summarily rejecting the argument that the existence of Subpart 2—the specific portion of the Act concerned with attainment of the primary, or health-based, air quality standards for ozone—bars the Agency from revising the air quality standards for ozone.⁵⁴ (Perhaps coincidentally, this is a contention that EPA had addressed and rejected in promulgating the new standards.)⁵⁵ Yet, according to the court, Subpart 2 applies to the new standard. As a result, according to the court, EPA "is precluded from enforcinga revised primary ozone [ambient air quality standard] other than in accordance with the classifications, attainment dates, and control measures set out in Subpart 2."⁵⁶

The court based its result on CAA § 181(a)(1), the provision of Subpart 2 that provides for the classification of and deadline dates for ozone nonattainment areas. CAA § 181(a)(1) states that it applies to "each area designated nonattainment for ozone pursuant to [section 107(d)]."⁵⁷ Generally, these designations took place pursuant to CAA § 107(d)(4),⁵⁸ which provides elaborate rules for the designation of ozone and carbon nonattainment areas in the period immediately following enactment of the 1990 Amendments. But, as the quote above from it shows, CAA § 181(a) refers not merely to CAA § 107(d)(4), but rather to CAA § 107(d) generally. Thus, according to the court, CAA § 181(a)(1) encompasses classifications that occur under CAA § 107(d)(1), which provides for the classification of areas in response to promulgation of new or revised ambient air quality standards.⁵⁹ CAA § 181's reference to CAA § 107(d) is all the more significant because as the court points out, early versions of the legislation (including the Senate-passed version rejected at conference in favor of the House bill) incorporated a cross-reference only to what became CAA § 107(d)(4).⁶⁰

Hence, according to the court, areas that are designated nonattainment under a revised ozone standard are covered by Subpart 2. The court, although not saying so explicitly, appears to agree with EPA's premise that Subpart 2 does not offer a means of implementing the new standard. This does not trouble the court; according to it, Congress' purpose in applying CAA § 181 to a revised ozone standard was to "preclude the EPA from requiring areas to comply either more quickly or with a more stringent ozone [ambient standard]"⁶¹ than the standard in effect when Congress established the scheme in 1990. Thus, the court's holding that EPA "may enforce a revised ozone NAAQS only in conformity with subpart 2"⁶² appears intended to drastically restrict the Agency's power to implement the new standard.

The Meaning of the Court's Decision

It is not entirely clear what the court believes to be the consequences of this decision. At first glance, it would appear that the court is holding Subpart 1 unavailable in implementing the new standard. But this cannot be literally correct; most of Subpart 1 consists of measures that clearly apply even in nonattainment areas to which the specific subparts apply.⁶³ Rather, the court appears to be holding that in any situation of conflict between Subpart 1 and Subpart 2, the requirements of Subpart 2 apply to implementation of the revised ozone primary standard. Hence EPA apparently cannot use Subpart 1 to require that SIPs include additional measures to implement the new standard.

There is some ambiguity in the court's decision, however. The original panel opinion declared that "[the new ozone standard] is unlikely to engender costly compliance activities in light of our determination that it cannot be enforced by virtue of section 181(a)."⁶⁴ But, in modifying the opinion, the court deleted this statement, replacing it with a declaration that: "We do not vacate the ozone standards because the parties have not shown that the standard is likely to engender costly compliance activities in light of our determination that it can be enforced only in conformity with subpart 2."⁶⁵ [30 ELR 10039] The change arguably opens the door ajar to some use of Subpart 1 to establish additional measures. More likely, though, it is only a recognition that Subpart 2 allows the new standard to be implemented to the extent that Subpart 2 implements the old standard. This restricted reading is confirmed by the court's retention of its statements that "because the 1990 amendments extended the time for nonattainment areas to comply with the [then-existing] ozone standard, they must preclude the EPA from requiring areas to comply either more quickly or with a more stringent ozone NAAQS"⁶⁶ as well as its holding that "EPA is precluded from enforcing a revised primary ozone NAAQS other than in accordance with the classifications, attainment dates, and control measures set out in Subpart 2."⁶⁷ Hence the revised opinion, as well as the original one, seems to mean that EPA cannot require states to revise their plans to include measures beyond whatever is needed to assure attainment of the previous standard.

Judge Tatel urges a narrower reading of the court's opinion, suggesting that the court is not barring "the possibility that the new ozone standard can be implemented in areas that have attained the old standard."⁶⁸ In this way, he squares his continued concurrence in the judgment with his belief that the court should have granted rehearing to reach this result expressly.

It is not clear what Judge Tatel means. The quoted passage, by its use of the past tense, implies that in Judge Tatel's view, the new standard can only be applied in areas that as of some fixed date, attain the ozone standard. In this way, Subpart 1's deadlines would begin to apply on the date those areas are classified as attaining the standard. On the other hand, he cites with approval EPA's interpretation "that Subpart 2 still applies to an area until it attains the [previous] standard."⁶⁹ Under this reading, Subpart 1's deadlines can begin to go into effect as urban areas attain the previous ozone standard early in the new millennium.

Either reading might be a sensible way of reconciling Subparts 1 and 2 because each removes the possibility that any area will not get additional time to reach the revised standard. The majority's failure to address Judge Tatel's reading gives weight to it. Nonetheless, it is hard to reconcile Judge Tatel's reading of the majority's opinion with the above-quoted passages from it, which appear to bar any use of Subpart 1's deadlines to enforce the revised standard, even in areas that have attained the previous standard. Moreover, Judge Tatel's reading assumes that the statute is sufficiently ambiguous to warrant Chevron deference and, therefore, that the Agency's views should prevail.⁷⁰ The majority, however, denies this.⁷¹ Finally, if the majority believed that the new ozone standard could be implemented in areas that have attained the old standard, the majority would likely have vacated the new standard rather than simply remanding it for additional explanation. It therefore appears impossible to read the court's opinion as Judge Tatel suggests.

Moreover, Judge Tatel's view depends on the assumption that EPA indeed reads the statute as Judge Tatel suggests. But this is not the case. Judge Tatel quotes at length the Agency's implementation strategy,⁷² but fails to cite any provision that specifically states that the attainment deadlines for the new standard will begin to take effect only after the old one is met. Indeed, EPA has tentatively taken the opposite interpretation. The Agency proposed in 1998 that attainment deadlines for "traditional" nonattainment areas (including those that did not meet the previous ozone standard) would begin to run from the completion of nonattainment designations in 2000—not, as Judge Tatel assumes, from the date the previous standard was attained.⁷³ Judge Tatel's suggested reading thus fails because of the hornbook rule that a court may not substitute a new ground for the one put forth by the administrative agency.⁷⁴ Thus, Judge Tatel's opinion can only be taken as an indication of what position he would take if EPA interpreted the statute in the way suggested by him, rather than as a guide to the meaning of the majority's opinion.

Hence the court's decision appears to mean that EPA is barred from using Subpart 1 to require additional measures to implement the new ozone primary standard, even in areas that attained the previous standard. Such a holding gives considerable pause.

The Chevron Connection

On first blush, the court's result may seem contrary to Chevron. The meaning of this case has been much contested; indeed, Judges Williams and Silberman debate its significance [30 ELR 10040] in thedenial of rehearing.⁷⁵ Chevron is often cited for the proposition that courts must "accept all reasonable agency interpretations of statutes that the agency administers."⁷⁶ But Chevron never states the quoted proposition. Rather, the court in Chevron requires deference to the agency construction only if the statute is silent or ambiguous.⁷⁷ Some have seen in this formulation a suggestion that the agency wins so long as it has a plausible argument for its reading of congressional intent.⁷⁸ But it has become increasingly clear—perhaps as a result of criticism of the implications of such a broad reading of Chevron—that the reviewing court decides for itself whether a statute is indeed silent or ambiguous, and that ambiguity is not established merely by the existence of controversy about the statute's meaning. Indeed, EPA has recently lost a string of cases before the D.C. Circuit, written by judges with diverse ideological viewpoints, in which that court declined to defer to the Agency's construction of the CAA, but instead found that the statute precludes EPA's reading of it.⁷⁹

The U.S. Supreme Court also appears to believe that courts should undertake an extensive examination of congressional intent. In fact, only three days after announcing Chevron, the Court struck down an agency interpretation of an equally complex statute.⁸⁰ Nor has the Court since been shy of declaring that agencies have erred in interpreting statutes.⁸¹ Even in instances in which the Court has upheld the agency as reasonable—as in Chevron itself—the Court has undertaken a searching analysis of statutory meaning.⁸² Indeed, Justice Antonin Scalia, himself a prominent administrative law scholar, has suggested that his own endorsement of Chevron stems from his belief that normally the meaning of a statute is apparent and, therefore, judicially determinable without the need for deference to an agency.⁸³

The Court's decision last term in California Dental Ass'n v. Federal Trade Commission⁸⁴ illustrates these points in an unusual way. The Federal Trade Commission (FTC) had brought a complaint against the California Dental Association, asserting that the association's restrictions on advertising violate § 5 of the Federal Trade Commission Act.⁸⁵ One issue in the case was whether § 5 gives the FTC jurisdiction over the association. The FTC argued that the Court should defer to the commission's view that the statutory term "corporation" can at times cover a nonprofit entity like the association.

The Court, speaking through Justice David Souter, declined to defer. Instead, the Court ruled in favor of the FTC on the grounds that the agency's interpretation was "clearly the better reading of the statute under ordinary principles of construction."⁸⁶ In other words, the Court refused to see the statute as silent or ambiguous, even though doing so would have led to the same result as the one the Court ultimately reached. By doing so, the Court has now made it impossible for the FTC to disclaim jurisdiction in the future over such cases; more importantly for our purposes, the Court in effect asserted that it regarded it as its responsibility, not the agency's, to decide Congress' intent on an important question of agency jurisdiction.⁸⁷

[30 ELR 10041]

Evaluating the Court's Decision

Hence American Trucking did not err in making its own analysis on the extent of the authority that the CAA gives EPA to implement the revised ozone standards. Rather, the court seems in error in holding that EPA cannot require additional measures to implement the new ozone standard.

There is a threshold flaw in the court's reasoning worth noting. The court, while holding that EPA may only use the timetables and compliance measures in Subpart 2, assumes without discussion that Subpart 2 itself cannot be a source of additional control requirements. But this is far from clear from Subpart 2's language. Imagine an area, like the urban corridor stretching from Connecticut to northern Virginia, that was nonattainment for the old ozone standard in 1990 and is not in attainment of the new ozone standard. The court fails to cite anything in the CAA that prevents the new standard from simply being substituted for the old one in such an area. Areas that were Marginal, Moderate, or Serious under Subpart 2 for the old standard could be judged to have missed their attainment dates of 1993, 1996, or 1999, respectively, and, under CAA § 181(b)(2),⁸⁸ could be bumped up to Severe, with an attainment deadline of 2005. These areas would now be subject to CAA § 182(c)(2)(A)'s requirement for a plan specifically demonstrating how attainment would occur by the statutory deadline.⁸⁹ Areas that do not attain the new primary standard by 2005 would become subject to the Act's provisions for Severe areas that miss the attainment deadline.⁹⁰ Areas that were in attainment of the ozone standard in 1990 but violate the new standard could be treated under CAA § 181(b)(1); this provision provides that an area that was in attainment for ozone in 1990, but subsequently becomes nonattainment, is regulated by Subpart 2, with the important qualification that the deadlines in Subpart 2 are extended to reflect the period of time between the enactment of the 1990 Amendments and the date of nonattainment designation.⁹¹

Perhaps it could be argued that Subpart 2 does not reach such new nonattainment areas, because—now that the ozone standard has changed—such areas cannot be classified under CAA § 181(a) as envisioned by Subpart 2. This objection depends on the premise that Subpart 2 only reaches areas that can be classified under CAA § 181(a). That premise is contestable; EPA has, without objection, treated as "Submarginal"—and hence subject to Subpart 2—areas that could not be classified under CAA § 181(a) but were nonetheless areas designated as nonattainment for ozone under CAA § 107(d).⁹² An intermediate approach could be taken to areas that were originally classified as nonattainment (and thus subjected to Subpart 2), later came into attainment of the previous standard, and are now found to be in nonattainment of the new standard; the Agency has already adopted a comparable strategy for the San Francisco area, which was unable to remain in compliance with the current ozone standard.⁹³

But, for the sake of argument, let us accept the court's assumption that Subpart 2 cannot be used as a source of further control measures. That assumption makes even more questionable the court's apparent holding that Subpart 1 cannot be used to impose additional requirements, and that hence EPA is barred from using Part D to require added controls. Nothing in the court's reasoning prevents the Agency from putting burdens on new cars and other new highway vehicles to help meet the new standard. These sources are regulated not by Title I's Subpart 2, but rather by Title II of the CAA.⁹⁴ Title II requires EPA to decide soon whether to tighten emission standards for new cars. One factor that EPA must consider is "the need for further reductions in emissions in order to attain or maintain the national ambient air quality standards. . . ."⁹⁵ New highway vehicles emit hydrocarbons and nitrogen oxides, and hence are important contributors to ozone levels; for this reason, EPA has proposed phasing in tougher emissions standards for cars and light trucks.⁹⁶ Because the American Trucking court agrees that EPA has authority to revise NAAQS, it would seem to follow that Congress intended to allow EPA, if it validly revised the standards, to further regulate new highway vehicles in the name of meeting those standards. It is hard to understand, though, why Congress would have meant to allow EPA to put the burden of meeting the new standards entirely on new mobile sources, especially because these sources are hardly the exclusive causes of ozone formation.⁹⁷

The court's holding also causes another structural anomaly. As discussed earlier, CAA § 181(a) is the basis for the court's conclusion that EPA cannot require additional steps to meet the primary standard. But, as the court concedes, CAA § 181(a) does not apply to the revised secondary, or welfare-based standard.⁹⁸ Hence the court rules in its revised opinion that EPA may require measures to attain the secondary standard as expeditiously as practicable.⁹⁹ From the [30 ELR 10042] Agency's point of view, this is an improvement over the court's previous holding that such measures could be required only once areas meet the previous primary standard.¹⁰⁰ Yet it only emphasizes the paradoxical nature of the court's holding. According to the court, EPA may require measures to attain the revised secondary standard, but not the primary standards. Consequently, EPA is apparently being permitted to do more to implement the secondary than the primary standards. This seems difficult to rationalize in a statutory scheme that sets specific deadlines for the attainment of the primary standards, but requires attainment of the secondary standards only "as expeditiously as practicable."¹⁰¹ In this way, the scheme envisions that the attainment of the primary standards will be the principal focus—the term "primary" is not accidental—with the secondary standards reduced to a subsidiary position. The paradox of the court's approach is all the greater in the instance of the ozone standard, for which the primary and secondary standards are set at the same level.

The court's result seems odd in a more fundamental way as well. As the court itself concludes, Congress did not bar EPA from revising the ozone standard. Moreover, Congress expressly required EPA to classify areas according to whether they attain the new standard. It is hard to see why Congress would have provided either of these things if, as the court apparently rules, Congress did not mean for EPA to require that anything additional be done to implement a revised standard. For instance, classifying areas would seem to be a waste of resources if the sole point of classification—to decide what, if any, additional control measures ought to be undertaken in those areas—has been removed by the absence of any authority to implement those measures.

It might be contended that the purpose of the classification is to allow the relaxation of control requirements in areas that failed to meet the old standard, but do meet the new one. This argument, though, is undercut by CAA § 172(e),¹⁰² a provision that, significantly enough, was added to the House bill—the bill whose nonattainment provisions were ultimately accepted—¹⁰³ at the same time as the language referring to CAA § 107(d) upon which the court relies upon so heavily.¹⁰⁴ CAA § 172(e) states that whenever EPA relaxes an ambient air quality standard, the Administrator must promulgate requirements for areas that were in violation of the standard at the time it was relaxed. These requirements, though, cannot be less stringent than those that were applicable prior to the relaxation.¹⁰⁵ In this way, even areas that as a result of the revision of a standard, are redesignated from nonattainment to attainment receive no benefit from that redesignation. Hence the court's theory leaves no purpose to be served by revisions of the ambient standards or redesignations.

CAA § 172(e) undermines the court's reading of the statute in another way. The court's conclusion, as we have seen, is that a tightening of a standard apparently cannot result in further control measures. If Congress had really intended this result, then CAA § 172(e), which, as its heading reflects, deals with modifications of ambient air quality standards, would have been the logical place to state it. Instead, Congress established only a rule that applies to a weakening of the standards. Moreover, this rule does not forbid the imposition of tightened control requirements even when EPA relaxes an ambient air quality standard. Rather, Congress only provided that EPA's requirements could not be laxer than currently applied to nonattainment areas. Congress was evidently willing to allow EPA to tighten control requirements even when a standard is relaxed if, for instance, the Agency finds that control technologies for a given industry have increased in efficacy. It is hard, therefore, to see why Congress would not have allowed EPA the same authority when EPA finds that its past standard was not adequate to ensure necessary emission controls.

Furthermore, the court's result requires that a distinction be drawn between relaxed standards—for which CAA § 172(e) expressly allows EPA to promulgate new requirements—and tightened standards, for which the court holds that EPA may not. There are two problems with such a distinction. First, the CAA clearly contemplates that new requirements will be established when EPA sets air quality standards for hitherto unregulated pollutants.¹⁰⁶ It is hard to see why Congress would have wanted to distinguish between entirely new standards and revisions of existing standards that tighten air quality standards; both, after all, result in greater stringency of regulation. Indeed, American Trucking rejects in another context the argument that Congress meant to draw a distinction between new and revised standards.¹⁰⁷ Second, drawing a line between "relaxed" and "tightened" standards is quite difficult. The new ozone standard has a different averaging time than the old one, and while most areas will have a harder time meeting the new standard, there are expected to be exceptions.¹⁰⁸ The same can be true when EPA decides to change the coverage of the standard, as it did for particulate matter; exempting larger particles from the standard is helpful to areas with few fine particles, but imposes greater stringency on those with many such particles. The best way to avoid these conundrums is to regard Congress as having anticipated similar [30 ELR 10043] treatment for all new standards and revisions: that is, to have allowed EPA to establish requirements for state plans to meet the new standards, with the sole caveat that these requirements could not allow back-sliding from existing control measures.

The court's result seems in tension in another way with the provisions of Subpart 1. The court's central statutory argument, as we have seen, is that Subpart 2, by its reference to the whole of CAA § 107(d), covers all areas designated as nonattainment for the ozone primary standard, even those areas designated as nonattainment in response to a revision of the standard. Part D, though, includes specific subparts, not only for ozone, but also for all pollutants that were then covered by ambient air quality standards. All of these subparts include the same language as Subpart 2—language that applies the specific subpart to all areas designated as nonattainment under § 107(d).¹⁰⁹ Under the court's logic, therefore, Subpart 1 will never apply on its own terms to a revised primary standard¹¹⁰; instead, the deadlines in the pollutant-specific provisions will always apply. It is difficult to reconcile this with Subpart 1's language providing for its application to revisions of "any" ambient air quality standard in effect when the 1990 Amendments were signed into law¹¹¹; that language, under the court's reasoning, lacks effect. Indeed, far from applying to "any" standard that was in effect, under the court's conclusion Subpart 1 will apply to no primary standard. It seems preferable, therefore, to read Subpart 2 and the other specific subparts of Part D as controlling only for the particular primary standards that were in effect when Congress enacted them, not to any subsequent alterations.

The Court's Policy Analysis

The court's result is therefore hardly an inevitable reading of the statute. Rather, it seems to rest on the court's understanding of the policy concerns that animated the 1990 Amendments. First, the court suggests that if EPA is right in believing that a revised ozone air quality standard for ozone can be enforced under Subpart 1, then the Agency would have the power to set Subpart 2 at naught by revising the standard.¹¹² This argument ignores the reality that EPA has hardly been quick in revising ambient air quality standards, even though many of the standards were set in great haste in 1971.¹¹³ The ozone and particulate matter standards are the only ones to have been altered since they were originally set, and even these have been changed only twice. Revisions, after all, disrupt the existing program and are quite controversial. Hence Congress, in enacting the 1990 Amendments, could reasonably expect that the Agency would alter the standards only when there is a very strong case for doing so. Knowing this, Congress could well have reasoned that, if EPA felt strongly enough about the inadequacy of a standard to set a new one, then the control provisions that apply to that pollutant ought to change as well. Moreover, as Judge Tatel points out, the difficulty is eliminated if the statute is interpreted to add Subpart 1's deadlines to Subpart 2's: to hold, in other words, that Subpart 1's deadlines begin to apply only once an area attains the previous ozone standard under Subpart 2.¹¹⁴ In this way, Subpart 2's applicability would not be affected by revision of the ozone primary standard.

Second, the court sees Congress' decision to postpone the deadlines for attaining the air quality standards for ozone as an indication that Congress meant to preclude EPA from tightening control requirements beyond those established in Part D.¹¹⁵ Ironically, this argument makes the same error as the one the Supreme Court tried to correct in Chevron. The lower court in Chevron rejected EPA's plantwide definition of a source because it believed that Congress' purpose in enacting Part D in 1977 was to enhance air quality.¹¹⁶ The Supreme Court, by contrast, saw Congress as attempting to balance economic and environmental objectives¹¹⁷; consequently, the Court declined to interpret the CAA as barring EPA's approach. Similarly, the 1990 Amendments were not a mere bailout of industry, but rather represented an attempt to devise a comprehensive program to clean the air by a given deadline; it would be pedantry to parade citations to this effect.

It therefore seems a misreading of Congress' intent to conclude that the postponement of attainment deadlines was indicative of an overriding purpose of safeguarding industry from environmental requirements. Indeed, the argument that Congress was trying to serve two purposes, rather than just one, is even stronger in the present context than in Chevron. The Act's environmental protection purpose seems more dominant in it than the purpose of accommodating industry.¹¹⁸ This is, after all, a statute that is built on the principle [30 ELR 10044] that industry "should meet the standard of the law or be closed down."¹¹⁹ That principle forms much of the basis for the Supreme Court's holding in Union Electric Co. v. U.S. Environmental Protection Agency¹²⁰ that EPA cannot turn down a state plan for being too stringent, and the D.C. Circuit's holdings, reaffirmed in American Trucking, that ambient air quality standards may not be based on costs.¹²¹

The 1990 Amendments themselves undercut the court's view of their intent. The Amendments do not merely extend the deadlines, but also establish detailed requirements to help assure that the standards are attained on time. Most ozone nonattainment areas must demonstrate that they will achieve, for instance, specific reductions in emissions,¹²² and undertake particular control programs, such as automobile inspection and maintenance.¹²³ But these measures are only minima. Many ozone nonattainment areas must submit demonstrations showing that their plans will actually result in attainment by the statutory deadline.¹²⁴ If the specific measures called for by the Act are not sufficient, then the area must institute additional measures to meet the standards on time.¹²⁵ In this way, the deadline extension in the 1990 Amendments gives industry only limited relief from the possibility of drastic or technology-forcing measures.

Hence the 1990 Amendments cannot be seen as evincing a purpose to protect industry from tight regulation. If, for instance, scientific data shows that emission reductions far beyond those thought necessary in 1990 are needed to meet the standards, then sources will have to make those reductions. Similarly, it seems hardly far-fetched to think that the drafters of the 1990 Amendments envisioned that industry would have to undertake additional measures to meet a tightening of the standards themselves.

Perhaps the court's central concern, at work in both of its arguments, is that Congress could not have possibly intended that the tightening of an ambient air quality standard would result in a stricter deadline for attainment than applied to the original standard. Subpart 2's deadlines, as we have seen, gave areas up to twenty years to attain the ozone standard. Applying Subpart 1 would mean only five to ten years for attainment—a seemingly incongruous result for a tighter standard. Again, Judge Tatel's argument—that the statute could be read as adding Subpart 1's deadlines to Subpart 2's—responds to this concern. There are two additional points worth noting. The first is that the importance of the attainment deadlines should not be exaggerated. One might think that missing a deadline for attaining the air quality standards carries dire consequences. EPA, though, rejected this view in the 1980s. Rather, the Agency decided that it would not interpret the Act to ban construction of new sources, or to limit federal funding for sewers and new highways, simply because an area failed to attain on time. Instead, these sanctions would fall only on areas that had never submitted approvable plans, or were not carrying out their plans. Congress took the same approach in the 1990 Amendments. In other words, what is decisive is not whether a state wins or loses in the attempt to attain the ambient air quality standards, but how it plays the game.¹²⁶

Moreover, it seems erroneous for the court to implicitly compare the Subpart 2 and the Subpart 1 deadlines. The consequences, such as they are, of failure to meet these deadlines significantly differ. If an area fails to meet the most generous of the Subpart 2 deadlines—those that apply to Severe and Extreme areas—the area remains obligated to produce specific reductions in emissions and becomes subject to a special emissions fee program.¹²⁷ The result might well be to compel industry to engage in development of innovative control technology at great cost, or to force the implementation of measures that are societally disruptive. But the consequences of missing the Subpart 1 deadlines are much less dire. The area in question need only submit a new plan including all feasible measures.¹²⁸ In this way, no technology-forcing is required. Furthermore, the deadline for attainment in the new plan can provide an additional period equal to the original attainment period.¹²⁹ Thus, if, for instance, Los Angeles fails to attain the new ozone standard by 2010, EPA can easily give the area an additional decade—or perhaps more, since there is no provision barring EPA from giving more than one extension. Because the consequences of failure to attain on time are therefore less onerous under Subpart 1 than Subpart 2, there is nothing contradictory about applying Subpart 1's shorter deadlines to a revision that tightens an air quality standard.

[30 ELR 10045]

The Pre-1990 History

Moreover, the court's ruling ignores the pre-1990 history of the issue. That history casts doubt on the court's theory that EPA is barred from requiring extra steps to implement revised standards. Rather, it appears more likely that Congress knew that EPA was requiring such steps, and chose, if anything, to tighten EPA's approach.

The story begins with the CAA Amendments of 1970, which required that all areas submit plans demonstrating attainment of the primary standards no later than five years after plan approval.¹³⁰ By the mid-1970s, it was clear that these deadlines would not be attained. Congress responded in the CAA Amendments of 1977. The Amendments enacted the forerunner of today's CAA § 107(d) requiring that states promptly classify their areas as attainment, nonattainment, or unclassifiable for each of the pollutants covered by ambient air quality standards and submit those designations for EPA approval.¹³¹ Construction or modification of major new pollution sources in nonattainment areas was banned unless the states submitted approvable SIP revisions for these areas.¹³² These revisions had to meet the terms of newly enacted Part D,¹³³ which required, among other things, that the revised SIP demonstrate attainment of the primary standards by 1982 or, if specified conditions were met, by 1987.¹³⁴ Part D also established detailed specifications for plans for nonattainment areas, including a mandate for special requirements for new and modified sources that would contribute to nonattainment.¹³⁵

At the same time, Congress left unchanged the basic requirement in the 1970 Amendments that a plan show attainment within five years at the most. Hence, EPA had to draw the line between pollutants to which new Part D applied, and those that remained subject only to the requirements of pre-1977 law. This issue emerged shortly after the enactment of Part D when EPA, as a result of litigation from environmental groups, established ambient air quality standards for lead.¹³⁶ The Agency, in formulating proposed control strategy requirements for states, took the view that the deadlines of pre-1977 law applied.¹³⁷ No one seems to have contested this reading; the issue is not even mentioned in EPA's response to comments in the preamble to the final rules.¹³⁸

EPA's interpretation was quite plausible. If the 1970 deadlines did not apply to a pollutant for which standards were first set after 1977, then it is hard to see what they would apply to. The more difficult problem was to decide whether Part D applied at all to a newly regulated pollutant like lead. Take, for instance, the strict requirements of CAA § 173 for constructing or modifying a source in a nonattainment area.¹³⁹ EPA decided that because these requirements are contained in Part D, they applied only to areas that had been formally designated as nonattainment for the particular pollutant.¹⁴⁰ But the Agency's rules did not require states to designate areas according to whether they complied with the lead ambient air quality standard; the Agency's rationale was that Congress, in adding CAA § 107's designation requirements to the statute in 1977, meant for CAA § 107 to apply only to pollutants for which ambient standards then existed.¹⁴¹ In other words, if Part D's deadlines did not apply, then neither did any of Part D's requirements.

This interpretation was logical but led to the seemingly odd result that someone building or modifying a major source of lead in an area violating the lead ambient air quality standard did not have to meet the requirements of Part D for that source. Moreover, EPA's view arguably contradicted CAA § 171(2), a provision inserted by the 1977 Amendments that appeared to apply Part D not only to areas that had been classified as nonattainment under CAA § 107, but also to other areas not in compliance with an ambient air quality standard.¹⁴² A literal reading of this section would [30 ELR 10046] mean that both Part D and CAA § 110 would both apply in areas violating the lead standards. This result, however, would make it difficult to reconcile the differing attainment deadlines in the two portions of the statute.

EPA readdressed these issues in the mid-1980s when it revised the ambient air quality standards for particulate matter.¹⁴³ The policy stakes here were far higher than for lead. For the latter, EPA had expected that the Agency's program to reduce lead in gasoline—a program in existence before the ambient standards for lead was established—would be sufficient to bring cities into attainment of the lead ambient standards without any additional efforts by the states.¹⁴⁴ In contrast, EPA estimated that reaching the revised standards for particulate matter would require over a hundred counties to revise their implementation plans to institute further control measures.¹⁴⁵ In addition, declining to apply Part D to the tightening of a standard raised a closer policy question than refusing to apply Part D to a newly regulated pollutant; it seems paradoxical to apply Part D to the original standard, but not to a tightened standard that if anything, should require precisely the kind of comprehensive efforts at attainment that Part D requires. Similarly, as a revision of an existing standard, the particulate matter standard posed a closer legal case than an entirely new standard since refusing to use CAA § 110 to cover a revised standard would not totally deprive that section of meaning.

The Agency therefore went through a lengthy rulemaking on this and related issues.¹⁴⁶ In a comprehensive preamble to the proposed rule, EPA canvassed the relevant possibilities, including various intermediate approaches.¹⁴⁷ In 1987, the Agency ultimately concluded, in accord with its proposal, that the best approach would be to follow the lead precedent and implement the revised standard entirely through CAA § 110.¹⁴⁸ Thus, states would have to alter their plans to show how the revised standard would be met on CAA § 110's schedule.¹⁴⁹ In the Agency's view, Part D applied only to the standards that existed in 1977 and to relaxations of those standards, like the 1979 relaxation of the ozone standard. The Agency reasoned that Congress had intended Part D only to deal with the failure of areas to meet the existing standards under the 1970 Amendments, not with burdens imposed by subsequent tightening of the ambient air quality standards.¹⁵⁰

Whether EPA was correct in applying only CAA § 110 to the lead and particulate matter standards under the 1977 Amendments is not important for present purposes. Rather, the point is that even EPA's approach meant that states were obligated to revise their plans to establish additional control measures to meet new and revised air quality standards. The Agency's decisions on this issue were never challenged in court, except for one detail not relevant to this Article.¹⁵¹ Indeed, the Agency's classifications of areas in its particulate matter rulemaking formed the basis for Congress' approach in the 1990 Amendments.¹⁵²

Congress' Response

Thus, prior to the 1990 Amendments, EPA's view was that the tightening of ambient air quality standards, like the establishment of new ones, compels states to revise their plans to meet the revised standards. American Trucking's interpretation of the 1990 statute therefore rests on the premise that Congress meant to overturn the Agency's approach as too rigorous. The court was unable to cite anything from the legislative history indicating Congress thought EPA had been too stringent. In fact, it seems more likely to be true that if anything, Congress meant to force EPA to become more stringent.

The starting point in tracking the 1990 Amendments through Congress is S. 1490, the Bush Administration's 1989 proposals for amending the CAA.¹⁵³ In many ways, this bill forms the template for the 1990 Amendments Congress ultimately enacted. Like the 1990 Amendments, S. 1490 called for a new round of classificationof areas as nonattainment, attainment, or unclassifiable.¹⁵⁴ Like the 1990 Amendments, S. 1490 reorganized Part D to contain a general Subpart 1 to apply to all nonattainment areas, followed by specific subparts for each of the pollutants for which ambient air quality standards then existed.¹⁵⁵

S. 1490's proposed new Subpart 1 of Part D specifically governed the implementation of new and revised ambient air quality standards, "including a revision of any standard in effect on the date of [S. 1490's] enactment."¹⁵⁶ By incorporating the implementation of such standards into Part D, [30 ELR 10047] the bill proposed to eliminate the paradoxical exemption of new and tightened standards from Part D. In effect, S. 1490 proposed to do away with the "section 110 versus Part D" question by moving the deadlines that had been in CAA § 110 into Part D. Hence, there would be no doubt that in the future, the revision of a standard could not result in exempting new large emitters from, for instance, the tight preconstruction requirements of CAA § 173.

American Trucking, as we have seen, holds that the 1990 Amendments leave EPA powerless to require any revision of state plans to meet a revised ambient air quality standard. Thus, American Trucking demands the assumption that Congress did not merely reject S. 1490's proposal to tighten EPA's implementation of revised ambient air quality standards, but also intended to relax EPA's pre-1990 treatment.

The only plausible source of such a rejection would be the House Committee on Energy and Commerce, which added the language on which American Trucking relies: the language that links the ozone subpart to all areas declared nonattainment for ozone under CAA § 107(d), not just areas designated nonattainment under the CAA § 107(d)(4) process that immediately followed enactment of the 1990 Amendments. Yet the House committee does not even refer in its report to this alteration. This suggests that the committee did not intend to disapprove the proposed tightening in S. 1490, much less require more relaxed regulatory treatment than EPA was affording. Moreover, the same committee added what became CAA § 172(e). As we have seen, this provision—whose addition the House committee does mention in its report¹⁵⁷—prevents EPA from using the relaxation of an ambient air quality standard as a rationale for weakening control requirements. If anything, thisaddition strengthens S. 1490's proposal to tighten the implementation of revised standards; it is therefore an unlikely accompaniment to any intention to mandate a weaker result than EPA's prior practice.

This history is revealing in another way, S. 1490 explicitly tied its subparts for ozone, carbon monoxide, and particulate matter to the areas declared nonattainment immediately after enactment.¹⁵⁸ Because the pollutant-specific subparts were tied to the immediate new round of reclassifications, Subpart 1 would therefore certainly have applied to any revision of an ambient air quality standard. American Trucking assumes that the House committee, by a single change in cross-reference that went unmentioned in its report, meant to forbid Subpart 1's use for revised standards. This seems quite unlikely, particularly for a committee that added CAA § 172(e).

Hence, the House committee's alteration of the ozone subpart to refer to the whole of CAA § 107(d) cannot bear the weight that the court assigns to it. This leaves, of course, an unresolved question: what did the committee intend by its alteration? One possibility is that the committee was merely trying to make clear that CAA § 107(d)(2)'s procedural provisos, rather than only the substantive requirements of CAA § 107(d)(4), apply to designations under Subpart 2¹⁵⁹; a cross-reference solely to CAA § 107(d)(4), as was contained in the original bill, would have left this ambiguous.¹⁶⁰ The committee might also have been trying to make clear that, pending designations under CAA § 107(d)(4), existing ozone nonattainment areas under CAA § 107(d)(1)(C) would be subject to Subpart 2.¹⁶¹

Still another possibility is that the House committee intended to create ambiguity in the Act's treatment of the implementation of revised standards. Under S. 1490, there would be no doubt that any revised standard would be implemented only under Subpart 1, rather than under the subparts for specific pollutants. Conceivably, the House committee might have thought that this rule would be too rigid; that, for instance, a minor revision of an existing standard ought not to end the applicability of the specific subpart of the pollutant affected. By adding a reference to the whole of CAA § 107(d), the committee arguably meant to create a policy space for EPA to use its own discretion to deal with such a situation rather than require use only of Subpart 1. There is no need here to resolve this question; the point is that there is no basis to believe that Congress intended to reverse EPA's approach of requiring further control measures in the name of meeting a tightened ambient air quality standard or to bar the use of Subpart 1 to implement such a standard.

Learning the Lessons

In sum, the court's decision that EPA cannot require additional steps to implement a tightened air quality standard is supported neither by the Act's language, its structure, nor the history of its implementation. The denial of rehearing is thus unfortunate. The court did, however, retain jurisdiction over the case in the interest of judicial economy.¹⁶² The court ought to exercise that jurisdiction to vacate the portion of its opinion dealing with implementation of the revised ozone standard. The court instead should recognize that, given the many other issues at stake, the court simply was unable to give the implementation problem the attention it deserved.

I do not suggest, though, that the court ought to adopt EPA's analysis. Rather, the court ought to remand the question to EPA for further consideration. There would be two benefits from doing so. First, it is not—or at least it should not be—a foregone conclusion what result the Agency should reach. This Article has argued that American Trucking was wrong in holding that EPA is barred from requiring [30 ELR 10048] additional steps to attain the ozone standard. This, however, leaves open the question of the extent of discretion that EPA has, or how the Agency ought to exercise it. While S. 1490 would have made it clear that EPA had to administer a revised standard under Subpart 1, the final legislation is not as pellucid. Arguably, then, the statute is silent or ambiguous within the meaning of Chevron. If so, EPA can consider a solution other than Subpart 1 alone. For instance, Judge Tatel's proposal—that the Agency ought to require control requirements for the new standard as the old standard is reached—is worth considering. In this way, areas could in effect add together Subpart 1's and Subpart 2's deadlines. A remand would give EPA a chance to consider these questions. Second, a remand would at least necessitate that EPA respond to commenters, rather than hide behind the ipse dixit of the White House memorandum and the "interagency Administration group." In this way, EPA could gain greater legitimacy for its ruling, whatever it may be.

Neither EPA nor the court performed well on the implementation question. But there is one other institution that behaved poorly; the Congress that passed the 1990 Amendments. The controversy here illustrates a theme about which I and others have been writing for some time: that environmental legislation has become too unwieldy to receive the consideration in Congress that it requires.¹⁶³ Consequently, provisions are enacted that would never withstand careful scrutiny. The present situation is an example. When the drafting began of what became the CAA Amendments of 1990, those concerned had reason to be aware that EPA had already had difficulty deciding what should happen when the Agency revises NAAQS. All the same, Congress failed to state its intentions with precision.

Given the detail of the statute, it is hard to believe that anyone in Congress made a conscious decision to leave the issue unaddressed. Rather, the intricacy of the statute simply overwhelmed the legislative processes. Congress' failure to be explicit shows the pitfalls of expecting Congress to expressly address key policy issues when legislating. Even in the most intricate legislation—indeed, perhaps especially in the most intricate legislation—crucial issues may escape resolution.

There is a lesson here for the nondelegation part of the opinion that I discussed in my earlier Article. Those propounding a stronger nondelegation doctrine seem to assume that more detailed instructions by Congress to administrative agencies are a desirable way to ensure that the key decisions are made by Congress, not unelected bureaucrats.¹⁶⁴ Instead, more detailed legislation appears instead to obfuscate policy responsibility. Congress needs, therefore, to find other ways of ensuring that administrative agencies perform their jobs responsibly. Otherwise, statutes like the CAA will continue to face the possibility of simply collapsing under their own weight.

1. 175 F.3d 1027, 29 ELR 21071 (D.C. Cir. 1999), panel opinion modified and rehearing en banc denied, No. 97-1440, 1999 WL 979463 (D.C. Cir. Oct. 29, 1999) The original and modifying opinions are referred to as American Trucking and Rehearing Denial, respectively. All citations to the latter are to the slip opinion as available on Westlaw. The Rehearing Denial is also available at http://www.cadc.uscourts/gov/common/opinions/199910/97-1440b.tx.

2. Craig N. Oren, Run Over by American Trucking Part I: Can EPA Revive Its Air Quality Standards?, 29 ELR 10653 (Nov. 1999): see also Cass R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 MICH. L. REV. 302 (1999).

3. Oren, supra note 2, at 10664; Rehearing Denial at 10-11 (dissenting statement of Judge Silberman).

4. Originally, Judge David S. Tatel, the third member of the panel, joined this holding. But in the denial of rehearing, Judge Tatel broke ranks, deciding to concur in the judgment rather than join it, and urging that rehearing ought to be granted. See Rehearing Denial at 6-7.

5. American Trucking, 175 F.3d at 1049, 29 ELR at 21078 ("As the petitioners argue, because the 1990 amendments extended the time for nonattainment areas to comply with the [previous] ozone NAAQS [national ambient air quality standards], they must preclude the EPA from requiring areas to comply either more quickly or with a more stringent ozone NAAQS.").

6. Of the eleven active judges on the D.C. Circuit, two (Judges Patricia Wald and Karen LeCraft Henderson) did not participate in deciding the petition for rehearing; the court's disposition of the petition does not disclose the reasons. Of the remaining nine, four (Judges A. Raymond Randolph and David Sentelle, plus the two judges in the panel majority, Judges Williams and Ginsburg) voted to deny rehearing. Five judges (Chief Judge Harry Edwards, Judges Lawrence Silberman, Judith Rogers, and Merrick Garland, in addition to Judge Tatel, the dissenter on the panel) voted to grant rehearing. Nonetheless, rehearing was denied because of the D.C. Circuit's rule that a rehearing en banc must be endorsed by a majority of all the judges on active service—in this case, six—not just a majority of those sitting on the matter. See INTERIM CIRCUIT RULES OF THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Rule 35(a) (1999), available at http://www.cadc.uscourts.gov/ ("A majority of the judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc."). While this may seem unfair in an instance in which judges have disqualified themselves, it should be noted that normally the support of seven judges would be needed for rehearing because there are twelve positions on the court; one is currently vacant.

The division was along partisan lines—Democratic appointees voting to grant rehearing, and Republican appointees voting against it—with the conspicuous exception of Judge Silberman (an appointee of President Reagan) who filed a dissent from the denial of rehearing en banc.

Of course, the division on the court may soon change; Judge Wald is retiring to accept a position on the international war crimes tribunal in the Hague, Linda Greenhouse, War Crimes Tribunal Appeals to Unconventional Judge, N.Y. TIMES, July 12, 1999, at 10A, and Judge Silberman is expected to take senior status in 2000. Legaltimes.com, Circuit Chief: How the Court Really Works (interview with Chief Judge Edwards, Oct. 28, 1999) http://www.cadc.uscourts.gov/).

7. Oren, supra note 2, at 10656.

8. Rehearing Denial at 1-2.

9. 467 U.S. 837, 14 ELR 20507 (1984).

10. Oren, supra note 2, at 10660; see Peter Strauss, Presidential Rulemaking, 72 CHI.-KENT L. REV. 965 (1997).

11. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618 (unless otherwise specified, all future statutory citations are to the Clean Air Act (CAA)).

12. See id. §§ 7408-7409, ELR STAT. CAA §§ 108-109. These provisions were originally added by the CAA Amendments of 1970, Pub. L. No. 91-604, § 4(a), 84 Stat. 1676, 1678-80.

13. 42 U.S.C. § 7409(b)(1), ELR STAT. CAA § 109(b)(1).

14. Id. § 7409(b)(2), ELR STAT. CAA § 109(b)(2).

15. Id. § 7407(d)(1)(A), ELR STAT. CAA § 107(d)(1)(A).

16. Id. § 7407(d)(1)(B), ELR STAT. CAA § 107(d)(1)(B).

17. See id. § 7410(a)(1), ELR STAT. CAA § 110(a)(1).

18. See id. § 7410(a)(2)(A)-(C), ELR STAT. CAA § 110(a)(2)(A)-(C).

19. See, e.g., id. § 7502(a)(2)(A), ELR STAT. CAA § 172(a)(2)(A).

20. See id. § 7502(a)(2)(B), ELR STAT. CAA § 172(a)(2)(B). Under previous law, attainment of the secondary standards was only required within "a reasonable time." See CAA § 110(a)(2)(A)(ii), formerly codified at 42 U.S.C. § 7410(a)(2)(A)(ii) (since rewritten).

21. See id. § 7410(c), ELR STAT. CAA § 110(c).

22. See id. § 7509, ELR STAT. CAA § 179 (providing for special requirements for new and modified stationary sources and highway funding restrictions in areas that do not have approvable plans or do not carry them out).

23. Implementation of New or Revised Ozone and Particulate Matter (PM) National Ambient Air Quality Standards, 61 Fed. Reg. 65764 (Dec. 13, 1996). EPA published the proposed air quality standards themselves the same day. See National Ambient Air Quality Standards for Particulate Matter: Proposed Decision, 61 Fed. Reg. 65638 (Dec. 13, 1996); National Ambient Air Quality Standards for Ozone: Proposed Decision, 61 Fed. Reg. 65716 (Dec. 13, 1996).

24. Many of the comments may be directed to EPA's recent regional haze rule, Regional Haze Regulations, 64 Fed. Reg.35714 (July 1, 1999), which was included in the same docket.

25. See National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38652 (July 18, 1997) and National Ambient Air Quality Standards for Ozone, 62 Fed. Reg. 38856 (July 18, 1997).

26. Implementation of Revised Air Quality Standards for Ozone and Particulate Matter, 62 Fed. Reg. 38421 (July 18, 1997).

27. Id. at 38423-32.

28. The Agency did respond at least to some questions informally. See F. William Brownell & Ross S. Antonson, Implementing the New Eight-Hour NAAQS for Ozone—What Happened to the 1990 Clean Air Act?, 11 TUL. ENVTL. L.J. 355, 358 n.19 (1998).

29. See Identification of Ozone Areas Attaining the 1-Hour Standard and to Which the 1-Hour Standard Is No Longer Applicable, 63 Fed. Reg. 31014, 31018 (June 5, 1998) (citing the President's memorandum as authority for EPA's interpretation, and stating that it was now too late to question the provisions of the memorandum). This position is somewhat ironic, since the President's memorandum itself purported not to be judicially reviewable. Implementation of Revised Air Quality Standards for Ozone and Particulate Matter, 63 Fed. Reg. at 38422.

30. Id. at 38427-28.

31. Oren, supra note 2, at 10660-61.

32. As a result, it is not clear whether the court's holding applies only to the revised ozone standard, or whether the court would have come to the same conclusion for particulate matter.

33. Oren, supra note 2, at 10654 n.16.

34. 42 U.S.C. §§ 7501-7513b, ELR STAT. CAA §§ 171-192.

35. Id. §§ 7501-7509a, ELR STAT. CAA §§ 171-179B. For a summary, see Brownell & Antonson, supra note 28, at 360-62.

36. 42 U.S.C. § 7502(a)(2)(A), ELR STAT. CAA § 172(a)(2)(A).

37. Id. § 7502(a)(2)(D), ELR STAT. CAA § 172(a)(2)(D).

38. Id. §§ 7511-7511f, ELR STAT. CAA §§ 181-185B. For a thumbnail sketch, see Brownell & Antonson, supra note 28, at 362-64.

39. See 42 U.S.C. §§ 7511(a), 7511a(e), ELR STAT. CAA §§ 181(a), 182(e).

40. Interim Implementation Policy on New or Revised Ozone and Particulate Matter (PM) National Ambient Air Quality Standards (NAAQS), 61 Fed. Reg. 65752-53 (Dec. 13, 1996).

41. See 42 U.S.C. § 7511(a)(1), ELR STAT. CAA § 181(a)(1). Similarly, the special provisions that apply to Severe areas that fail to attain the standard on time are linked to the extent of violation when the attainment deadline is reached. See id. § 7511(b)(4), ELR STAT. CAA § 181(b)(4).

42. Implementation of Revised Air Quality Standards for Ozone and Particulate Matter, 62 Fed. Reg. 38421, 38424 (July 18, 1997). Under the Agency's view, Subpart 2 continues to apply to areas that are in violation of the previous ozone standard.

43. Id. at 38425.

44. Id. The strategy has since been derailed by the D.C. Circuit. See Oren, supra note 2, at 10655.

45. See Implementation of Revised Air Quality Standards for Ozone and Particulate Matter, 62 Fed. Reg. at 38424-25.

46. Id. at 38425-26.

47. Id. at 38425.

48. See Air Quality Standards: Number of Counties Violating Air Rules Would More Than Double, Group Predicts, 28 Env't Rep. (BNA) 430 (July 4, 1997) [hereinafter Air Quality Standards] (quoting Norman Fichthorn, an attorney for the Utility Air Regulatory Group).

49. See 42 U.S.C. § 751 le, ELR STAT. CAA § 185A (giving special treatment to areas that were classified as in nonattainment of the ozone standard when Congress passed the 1990 Amendments, but which had not experienced violations for three years or more).

50. It is not clear whether such a challenge would have been forthcoming. National environmental groups generally refrained from attacking the interagency implementation plan. See Air Quality Standards, supra note 48 (quoting David Hawkins of the Natural Resources Defense Council as characterizing EPA's position as "a sensible approach"). Perhaps it was clear from President Clinton's imprimatur that providing concessions like these was the price of getting tougher air quality standards. On the other hand, the environmental groups filed suit to challenge portions of EPA's approach. See Brownell & Antonson, supra note 28, at 359.

51. Rehearing Denial at 3.

52. Id.

The question whether Subpart 2 prevents the EPA from designating an area as nonattainment or from implementing that designation except in conformity with Subpart 2 is a pure question of law, the resolution of which would not benefit from a more concrete setting. As the agency's action is undoubtedly final, the question is fit for review.

In defense of the court, EPA seems to have given little attention to the issue either. Id. The foundational decision on ripeness remains Abbott Labs. v. Gardner, 387 U.S. 136, 149-50 (1967) (Harlan, J.) (stating that, even if the reviewing court has jurisdiction, it must consider whether the issue is ripe taking into account "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration").

53. The courtesy of F. William Brownell in sending these briefs and related materials is hereby noted with thanks.

54. See American Trucking Ass'n v. U.S. Environmental Protection Agency, 175 F.3d 1027, 1047, 29 ELR 21071, 21077 (D.C. Cir. 1999).

55. National Ambient Air Quality Standard for Ozone, 62 Fed. Reg. 38856, 38884 (July 18, 1997).

56. American Trucking, 175 F.3d at 1046, 29 ELR at 21077.

57. 42 U.S.C. § 7511(a)(1), ELR STAT. CAA § 181(a)(1). As is customary, I have quoted from the session law itself, rather, as the court does, from the unofficial and slightly different text contained in the U.S. Code.

58. See id. § 7407(d)(4), ELR STAT. CAA § 107(d)(4).

59. Id. § 7407(d)(1), ELR STAT. CAA § 107(d)(1).

60. American Trucking, 175 F.3d at 1048-49, 29 ELR at 21078. See also S. 1630, 101st Cong. § 107 (1990), 136 CONG. REC. S4364, S4375 (daily ed. Apr. 18, 1990) (Senate-passed version of proposed CAA § 181(a)) ("Each area designated attainment for ozone under section 107(f)(3) . . . .").

61. American Trucking, 175 F.3d at 1049, 29 ELR at 21078.

62. Rehearing Denial at 5.

63. See, e.g., 42 U.S.C. § 7503, ELR STAT. CAA § 173 (establishing new source review program for new and modified major stationary sources); id. § 7505a, ELR STAT. CAA § 175A (requiring air quality maintenance plans for areas seeking redesignation as attainment; id. § 7506, ELR STAT. CAA § 176 (forbidding federal support for activities that do not conform to state or federal implementation plans).

64. American Trucking, 175 F.3d at 1056, 29 ELR at 21081.

65. Rehearing Denial at 5. The court also modified a passage summarizing its holding. Rather than state that EPA "must enforce any revised primary ozone NAAQS under Subpart 2," American Trucking, 175 F.3d at 1050, 29 ELR at 21078, the court now states that "EPA can enforce a revised primary ozone NAAQS only in conformity with Subpart 2." Rehearing Denial at 5.

66. American Trucking, 175 F.3d at 1049, 29 ELR at 21078.

67. Id. at 1046, 29 ELR at 21077. It is possible that the latter statement was retained in the opinion by oversight. The next sentence in the original opinion announced its holding "that the EPA may not require a State to comply with a revised secondary ozone NAAQS in any area that has yet to attain the 0.12 ppm primary standard." Id. But this statement of holding seems undercut by the court's revision in Rehearing Denial at 5, of this portion of the opinion. The court there deletes from American Trucking the statement "the EPA is precluded from requiring any steps toward compliance with a revised secondary ozone NAAQS prior to an area's attainment of the 0.12 ppm standard," see 175 F.3d at 1051, 29 ELR at 21079; the court substitutes instead the statement that "Subpart 2 erects no bar to the EPA's requiring compliance with a revised secondary ozone NAAQS." Rehearing Denial at 5. A conforming change should therefore also have been made to page 1046. It is possible, therefore, that the court's revisions in the denial of rehearing do not fully reflect its changed opinion.

68. Rehearing Denial at 8.

69. Id.

70. Rehearing Denial at 6.

71. American Trucking, 175 F.3d at 1048, 29 ELR at 21078. "We do not defer to the agency's interpretation because we find that the Congress has spoken on the 'precise question at issue' and we 'must give effect to the unambiguously expressed intent of Congress.'" (Internal citations omitted.)

72. Rehearing Denial at 7.

73. Fact Sheet: Draft Implementation Guidance for the Revised Ground-Level Ozone and Particulate Matter National Ambient Air Quality Standards and a Regional Haze Program at 4 (Nov. 30, 1998), available at http://www.epa.gov/ttn/oarpg/tlpgm.html (announcing proposed attainment dates for "traditional areas" from 2007 to 2010). EPA's petition for rehearing is in accord; it treats the question of Los Angeles' attainment date as one to be decided. EPA Pet. Reh'g at 25 (filed June 28, 1999) ("Even assuming, arguendo, EPA establishes [an attainment date of 2010] when it acts on Los Angeles' SIP for the revised standard.").

74. See Securities & Exchange Comm'n v. Chenery, 332 U.S. 194 (1947). There the Court stated:

A simple and fundamental rule of administrative law [that] rule is a reviewing court . . . must judge the propriety of [agency] action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the reviewing court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.

Id. at 196.

75. Rehearing Denial at 2 (suggestion of Judge Williams that Chevron has displaced Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 10 ELR 20489 (1980) (the Benzene case), and that it is therefore up to the agency, not a court, to identify an intelligible principle); Rehearing Denial at 7 (response of Judge Silberman that Judge Williams' formulation "confuses the issue"). It seems odd that Judge Williams has the more expansive view of Chevron deference, since he rejects the Agency's interpretation of the Act.

76. See, e.g., Gary Lawson, Outcome, Procedure and Process: Agency Duties of Explanation for Legal Conclusions, 48 RUTGERS L. REV. 313 (1996).

77. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 14 ELR 20507, 20508-09 (1984). There the Court stated:

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

(Internal citations omitted.) Id.

78. See, e.g., Cynthia Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452 (1989); Cass Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 465 (1987); Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 ADMIN. L. REV. 363 (1986).

79. See Environmental Defense Fund v. EPA, 167 F.3d 641, 29 ELR 20631 (D.C. Cir. 1999) (per Tatel, J.) (the CAA bars EPA from "grandfathering" projects that appeared in previously conforming regional transportation plan); Virginia v. EPA, 108 F.3d 1397, 27 ELR 20718, modified, 116 F.3d 499, 27 ELR 21380 (D.C. Cir. 1997) (per Randolph, J.) (the CAA bars EPA from establishing specially stringent auto emission standard in the Northeast); Ethyl Corp. v. EPA, 51 F.3d 1053, 25 ELR 20817 (D.C. Cir. 1995) (per Edwards, J.) (EPA may not consider public health concerns in deciding whether to allow new fuel additive).

80. See Securities Indus. Ass'n v. Board of Governors, 468 U.S. 137 (1984) (commercial paper is a security under the Glass-Steagall Act despite agency attempt to define it otherwise).

81. See, e.g., MCI Telecomm. v. American Tel. & Tel. Co., 512 U.S. 218 (1994) (the Federal Reserve Bank lacked authority to exclude long-distance carriers other than AT&T from filing rates); Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421 (1987) (the Federal Reserve Bank erred in defining the standard of proof for refugee status); Board of Governors, Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361 (1986) (Federal Reserve Bank could not define as "banks" institutions that behave as banks do).

82. See, e.g., Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 697-706, 25 ELR 21194, 21197-98 (1995) (upholding as "reasonable" the Secretary of the Interior's definition of "take" under the Endangered Species Act).

83. Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 520-21. There he remarks:

In my experience there is a fairly close correlation between the degree to which a person is (for want of a better word) a "strict constructionist" of statute, and the degree to which that person favors Chevron and is willing to give it broad scope. The reason is obvious. One who finds more often (as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds less often that the triggering requirement for Chevron deference exists. It is thus relatively rare that Chevron will require me to accept an interpretation which, though reasonable, I would not personally accept.

84. 119 S. Ct. 1604 (1999).

85. 15 U.S.C. § 45 (1994).

86. California Dental Ass'n, 119 S. Ct. at 1610.

87. Four justices dissented, but not on this issue. Id. at 1617.

88. 42 U.S.C. § 7511(b)(2), ELR STAT. CAA § 181(b)(2).

89. Id. § 7511a(b)(2)(C), ELR STAT. CAA § 182(b)(2)(C).

90. See id. at § 7511(b)(4), ELR STAT. CAA § 181(b)(4) (providing that emission reduction requirements will continue to apply, that the emission fee program of 42 U.S.C. § 7511d, ELR STAT. CAA § 185, will become applicable, and that areas with especially egregious violations will become subject to some of the requirements for Extreme areas).

91. Id. § 7511(b)(1)(A), ELR STAT. CAA § 181(b)(1)(A). EPA has applied this provision to Sunland Park, New Mexico. See Designation of Areas for Air Quality Planning Purposes; New Mexico; Designation of Sunland Park Ozone Nonattainment Area, 60 Fed. Reg. 17756, 17757 (Apr. 7, 1995).

92. See Designation of Areas for Air Quality Planning Purposes, 56 Fed. Reg. 56694, 56697 (Nov. 6, 1991); State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 Fed. Reg. 13498, 13524 (Apr. 16, 1992). The Kansas City area has been treated under this classification. See Approval and Promulgation of Implementation Plans; State of Kansas, 64 Fed. Reg. 3896, 3899 (Jan. 26, 1999).

Judge Tatel uses this point to argue that the statute is indeed ambiguous in how it treats the implementation of revised standards. Rehearing Denial at 6. As this piece suggests, there are stronger arguments in favor of the same conclusion.

93. See Designation of Areas for Air Quality Planning Purposes: State of California; Redesignation of the San Francisco Bay Area to Nonattainment for Ozone, 63 Fed. Reg. 37258 (July 10, 1998).

94. 42 U.S.C. §§ 7521-7554, ELR STAT. CAA §§ 202-219.

95. Id. § 7521(i), ELR STAT. CAA § 202(i).

96. Control of Air Pollution From New Motor Vehicles: Proposed Tier 2 Motor Vehicle and Gasoline Sulfur Requirements, 64 Fed. Reg. 26004 (May 13, 1999).

97. See Mobile Sources: Only 24 Percent of Ozone Pollution Caused by Cars, Light Trucks, Group Says, 30 Env't Rep. (BNA) 1015 (Oct. 1 1999) (citing study performed for the American Automobile Association).

98. American Trucking, 175 F.3d at 1051, 29 ELR at 21078 ("§ 181(a)(1) expressly refers only to primary NAAQS and Subpart 2 not once mentions secondary NAAQS.").

99. Rehearing Denial at 4.

100. American Trucking, 175 F.3d at 1050, 29 ELR at 21078. As pointed out earlier, though, the court leaves some ambiguity about whether it indeed changed its earlier holding. See supra note 67.

101. See 42 U.S.C. § 7502(a)(2)(A)-(B), ELR STAT. CAA § 172(a)(2)(A)-(B).

102. Id. § 7502(e), ELR STAT. CAA § 172(e).

103. American Trucking, 175 F.3d at 1049, 29 ELR at 21078; see generally Craig N. Oren, How a Mandate Came From Hell: The Makings of the Federal Employee Trip Reduction Program, 28 ENVTL. L. 267, 367-68 (1998) (describing the conference negotiations).

104. Compare Committee Print, Nov. 9, 1989, H.R. 3030—Showing the Amendment in the Nature of a Substitute Adopted by the Subcommittee on Health and the Environment, § 102 (proposed CAA § 172) with H.R. 3030, 101st Cong. (1990) [Report No. 101-490, Part I], § 102 (proposed CAA § 172). There does not appear to be any counterpart in the Senate nonattainment provisions that were rejected by the conferees.

105. The provision states in full:

If the Administrator relaxes a national primary ambient air quality standard after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall, within 12 months after the relaxation, promulgate requirements applicable to all areas which have not attained that standard as of the date of such relaxation. Such requirements shall provide for controls which are not less stringent than the controls applicable to areas designated nonattainment before such relaxation.

42 U.S.C. § 7502(e), ELR STAT. CAA § 172(e) (quoted as it appears in the session law).

106. See id. § 7502(a)(1), ELR STAT. CAA § 172(a)(1).

107. American Trucking, 175 F.3d at 1040-41, 29 ELR at 21074.

108. Oren, supra note 2, at 10654 n.16.

109. See 42 U.S.C. § 7512(a)(1), ELR STAT. CAA § 186(a)(1) (covering "Each area designated nonattainment for carbon monoxide pursuant to section 107(d)"); id. § 7513(a), ELR STAT. CAA § 188(a) (covering "Every area designated nonattainment for PM-10 pursuant to section 107(d)"); id. § 7514, ELR STAT. CAA § 191 (covering "Any State containing an area designated or redesignated under section 107(d) as nonattainment with respect to the national primary ambient air quality standards for sulfur oxides, nitrogen dioxide, or lead").

110. There would be an exception for the pollutants covered by id. § 7514, ELR STAT. CAA § 191, because that provision seems to incorporate Subpart 1.

111. Id. § 7502(a)(1), ELR STAT. CAA § 172(a)(1) (requiring classification of areas "with respect to any national ambient air quality standard (or any revised standard, including a revision of any standard in effect on November 15, 1990)").

112. American Trucking, 175 F.3d at 1049, 29 ELR at 21078.

113. Craig N. Oren, Prevention of Significant Deterioration: Control-Compelling Versus Site-Shifting, 74 IOWA L. REV. 1, 64-67 (1988). The situation has not changed since 1990. See National Ambient Air Quality Standards for Carbon Monoxide—Final Decision, 59 Fed. Reg. 38906 (Aug. 1, 1994) (reaffirming the carbon monoxide ambient standards originally set in 1971); National Ambient Air Quality Standards for Nitrogen Dioxide: Final Decision, 61 Fed. Reg. 52852 (Oct. 8, 1996) (reaffirming the nitrogen oxide ambient standards originally set in 1971).

114. Rehearing Denial at 6.

115. See the language quoted in supra note 3.

116. See Natural Resources Defense Council v. Gorsuch, 685 F.2d 718, 726, 12 ELR 20942, 20947-48 (D.C. Cir. 1982) ("The nonattainment program's raison d'etre is to ameliorate the air's quality in nonattainment areas sufficiently to achieve expeditious compliance with the NAAQSs.").

117. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 851-52, 14 ELR 20507, 20511 (1984) ("Congress sought to accommodate the conflict between the economic interest in permitting capital improvements to continue and the environmental interest in improving air quality.").

118. Phillip Reed, Three Strikes and the Umpire Is Out: The Supreme Court Throws the D.C. Circuit Out of the Bubble Review Game, 14 ELR 10338, 10345 (Sept. 1984) (labeling as "shocking" Chevron's analysis of the Act's statutory purpose); cf. Cass Sunstein, Factions. Interests, and the APA: Four Lessons Since 1946, 72 VA. L. REV. 271, 289-91 (1986) (suggesting that a statute may have an overall "meta-intent").

119. S. REP. NO. 91-1196, at 2-3 (1970), cited in Union Elec. Co. v. EPA, 427 U.S. 246, 6 ELR 20570 (1976)

120. 427 U.S. 246, 6 ELR 20570 (1976).

121. See Lead Indus. Ass'n v. EPA, 647 F.2d 1130, 10 ELR 20643 (D.C. Cir.), cert. denied, 449 U.S. 1042 (1980); American Trucking, 175 F.3d at 140, 29 ELR at 21074.

122. See, e.g., 42 U.S.C. § 7511a(b)(1)(A), ELR STAT. CAA § 182(b)(1)(A) (requiring that areas that are Moderate or worse show a fifteen-percent reduction in emissions by 1996); id. § 7511a(c)(2)(B), ELR STAT. CAA § 182(c)(2) (requiring that areas that are classified as Serious or worse show a three percent reduction each year after 1996).

123. See, e.g., id. § 7511a(b)(4), ELR STAT. CAA § 182(b)(4) (requiring motor vehicle inspection and maintenance in all Moderate areas); id. § 7511a(c)(3)(A), ELR STAT. CAA § 182(c)(3)(A) (requiring programs of enhanced vehicle inspection and maintenance in areas that are Serious or worse).

124. See id. § 7511a(c)(2)(A), ELR STAT. CAA § 182(c)(2)(A) (requiring of areas that are Serious or worse "a demonstration that the plan, as revised, will provide for attainment of the ozone national ambient air quality standard by the applicable attainment date").

125. Perhaps it is not surprising, therefore, that EPA has felt compelled to give states more time to make their submissions. See Interim Implementation Policy, 61 Fed. Reg. 65752, 65755 (Dec. 13, 1996).

126. Craig N. Oren, Detail and Implementation: The Example of Employee Trip Reduction, 17 VA. ENVTL. L.J. 123, 160-61 (1998).

127. See supra note 90 and accompanying text.

128. 42 U.S.C. § 7509(d)(2), ELR STAT. CAA § 179(d)(2). The provision reads:

The revision . . . shall meet the requirements of section [110 and section 171]. In addition, the revision shall include such additional measures as the Administrator may reasonably prescribe, including all measures that can be feasibly implemented in the area in light of technological achievability, costs, and any nonair quality and other air quality-related health and environmental impacts.

129. Id. § 7509(d)(3), ELR STAT. CAA § 179(d)(3). This provision reads:

The attainment date applicable to the revision required [of an area that did not achieve a Subpart 1 attainment date] shall be the same as provided in the provisions of section [172(a)(2) providing the original five-to-ten-year period for attainment] except that in applying such provisions the phrase "from the date of the notice [that attainment was not reached on time]" shall be substituted for the phrase "from the date such area was designated nonattainment under section [107(d)]" and for the phrase "from the date of designation as nonattainment."

130. Pub. L. No. 91-604, § 4, 84 Stat. 1676, 1680, 1682 (1970) (enacting former § 110(a)(2)(A)(i), requiring that the plan demonstrate attainment of the primary standards no later than three years after plan approval, and former CAA § 110(e), authorizing the Administrator to grant a two-year delay of the attainment deadline under specified circumstances); see also Train v. Natural Resources Defense Council, 421 U.S. 60, 5 ELR 20264 (1975) (describing the scheme and interpreting § 110(e)).

131. Pub. L. No. 95-95, § 103, 91 Stat. 684, 687-688 (enacting CAA § 107(d), formerly codified at 42 U.S.C. § 7407(d) (since rewritten)).

132. Id. § 108(b), 91 Stat. at 694 (enacting CAA § 110(a)(2)(I), formerly codified at 42 U.S.C. § 7410(a)(2)(I) (since rewritten)).

133. Id. 91 Stat. at 746-751 (enacting CAA §§ 171-178, formerly codified at 42 U.S.C. §§ 7501-7508 (since amended extensively)); see generally David Currie, Relaxation of Implementation Plans Under the 1977 Clean Air Act Amendments, 78 MICH. L. REV. 155 (1979).

134. Pub. L. No. 95-95, § 129(b), 91 Stat. 684, 746-747 (enacting CAA § 172(a)(1)-(2), formerly codified at 42 U.S.C. § 7502(a)(1-2) (since rewritten)).

135. Id. at 748 (enacting CAA § 173, formerly codified at 42 U.S.C. § 7503 (since amended extensively)).

136. See National Primary and Secondary Air Quality Standards for Lead, 43 Fed. Reg. 46246 (Oct. 5, 1978); see also Natural Resources Defense Council v. Train, 545 F.2d 320, 7 ELR 20004 (2d Cir. 1976) (holding that EPA had a nondiscretionary duty to set such standards).

137. See Implementation Plans for Lead National Ambient Air Quality Standard, 42 Fed. Reg. 63087 (Dec. 14, 1977) (proposed rules summarizing "requirements for control of the plan").

138. Part 51—Preparation, Adoption, and Submittal of Implementation Plans; Implementation Plans for Lead National Ambient Air Quality Standard, 43 Fed. Reg. 46264 (Oct. 5, 1978).

139. 42 U.S.C. § 7503, ELR STAT. CAA § 173.

140. 40 C.F.R. § 51.18(j)(2) (1984) ("Each State shall adopt a preconstruction review program to satisfy the requirements of sections 172(b)(6) and 173 of the Act for any area designated nonattainment for any national ambient air quality standard under 40 CFR 81.300 et seq.").

141. Designation of Areas for Air Quality Purposes, 56 Fed. Reg. 56694, 56706 (Nov. 6, 1991) (discussing the background of the Agency's classifications of areas for lead).

142. Pub. L. No. 95-95, § 129(b), 91 Stat. 684, 746 (1977) (enacting § 171(2), formerly codified at 42 U.S.C. § 7501(2)(1988) (since rewritten)). Section 171(2) provided:

The term "nonattainment area" means, for any air pollutant an area which is shown by monitored data or which is calculated by air quality modeling (or other methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard for such pollutant. Such term includes any area identified under subparagraphs (A) through (C) of section 107(d)(1).

(Emphasis added.) The cited subparagraphs in turn call for the classification of areas as nonattainment. By stating that the term "nonattainment area" is not limited to such areas, CAA § 171(2) implies that additional areas may be considered nonattainment. Otherwise, all Congress would have needed to do to define "nonattainment area" was to cross-reference CAA § 107(d)(1). But see Bethlehem Steel Corp. v. EPA, 723 F.2d 1303, 1306, 14 ELR 20090, 20091 (7th Cir. 1983) (Posner, J.) (refusing to give independent significance to CAA § 171(2) on the grounds this would make a nullity of the classification procedures of CAA § 107(d)). CAA § 171(2) has since been rewritten so that it merely cross-references CAA § 107(d). See Pub. L. No. 101-549, § 102(a)(2)(B), 104 Stat. 2399, 2413 (1990) (amending 42 U.S.C. § 7501(2), ELR STAT. CAA § 171(2)(1988)).

143. Strictly speaking, the issue also came up in early 1979 when EPA relaxed the ambient air quality standards for ozone. National Ambient Air Quality Standards for Ozone, 44 Fed. Reg. 8202 (Feb. 8, 1979). States had not yet submitted their plans under Part D to meet the ozone standard and so EPA, without objection, simply substituted the new standard for the old one. Id. at 8203.

144. National Primary and Secondary Air Quality Standards for Lead, 43 Fed. Reg. 46246, 46247 (Oct. 5, 1978). There the Agency stated:

EPA estimates that the existing regulations for the phase-down of lead in gasoline, combined with the increasing use of no-lead gasoline for catalyst-equipped cars, will result in attainment of the standard in urban areas where automobile exhaust is the dominant source of air lead. No additional pollution controls are anticipated for these areas.

145. Regulations for Implementing Revised Particulate Matter Standards, 52 Fed. Reg. 24672, 24679 (July 1, 1987).

146. In the interests of full disclosure, the author should reveal he played a bit role in this rulemaking as a consultant to EPA in 1984; suffice it to say that the author's advice was entirely rejected, perhaps for best.

147. See Regulations for Implementing Revised Particulate Matter Standards, 50 Fed. Reg. 13130, 13135-39 (Apr. 3, 1985).

148. Regulations for Implementing Revised Particulate Matter Standards, 52 Fed. Reg. at 24678.

149. Id. at 24679.

150. Id. at 24678. For the Agency's responses to comments, see id. at 24689.

151. See Natural Resources Defense Council v. EPA, 902 F.2d 962, 20 ELR 20891 (D.C. Cir. 1990). The exception concerned the treatment of particulate matter under the Prevention of Significant Deterioration program. Id. at 979, 20 ELR at 20899.

152. Pub. L. No. 101-549, § 101(a), 104 Stat. 2399, 2404 (enacting 42 U.S.C. § 7407(d)(4)(B), ELR STAT. CAA § 107(d)(4)(B)); Designation of Areas for Air Quality Purposes, 56 Fed. Reg. 56694, 56705 (Nov. 6, 1991) (discussing the background of the Agency's classifications of areas for particulate matter).

153. S. 1490, 101st Cong. (1989). For criticisms of the bill by its nominal sponsor, see 135 CONG. REC. S9650 (daily ed. Aug 3, 1989) (remarks of Sen. John Chafee (R-R.I.)). For a summary of the bill and reactions, see George Hager, Critics Disappointed by Details of Bush Clean-Air Measure, 47 CONG. Q. WKLY, 1852 (1989).

154. Compare S. 1490, 101st Cong. § 101(a) (1989) (proposed new § 110(b)(4)) with Pub. L. No. 101-549, § 101(a), 104 Stat. 2399, 2403 (1990) (enacting 42 U.S.C. § 7407(d), ELR STAT. CAA § 107(d)).

155. Compare S. 1490, 101st Cong. §§ 102-106 (1989) with Pub. L. No. 101-549, §§ 102-106, 104 Stat. 2399, 2413-2465 (1990).

156. S. 1490, 101st Cong. § 102(b) (1989) (proposed CAA § 172(a)(1)(A)) (1989).

157. H.R. REP. No. 101-490, pt. 1, at 224 (1990) ("Future modification of standard.—Revised § 172(e) provides that if a NAAQS is relaxed, control requirements in areas that remain in nonattainment may not be made less stringent.").

158. Compare S. 1490, 101st Cong. §§ 103(a), 104(a), 105(a) (1989) (proposed cross-references to proposed CAA § 110(a)(4)) with Pub. L. No. 101-549, §§ 103(a), 104(a), 105(a), 104 Stat. 2399, 2424, 2453, 2459 (1990) (enacting, respectively, 42 U.S.C. § 7511, ELR STAT. CAA § 181(a), 186(a), 42 U.S.C. § 7512(a), ELR STAT. CAA § 186(a), 42 U.S.C. § 7513(a), ELR STAT. CAA § 188(a) (all containing cross-references to 42 U.S.C. § 7407(d), ELR STAT. CAA § 107(d)).

159. See 42 U.S.C. § 7407(d)(2), ELR STAT. CAA § 107(d)(2).

160. It might be thought that the purpose of expanding the reference from CAA § 107(d)(4) to CAA § 107(d) was to ensure that CAA § 181 would cover areas that were designated as attainment in 1990, but later became nonattainment. In fact, the early versions of the legislation provided for this separately by including what is now 42 U.S.C. § 7511(b)(1), ELR STAT. CAA § 181(b)(1), which provides a special rule for these areas. See, e.g., S. 1490, 101st Cong. § 103 (1989) (proposed CAA § 181(b)(1)).

161. 42 U.S.C. § 7407(d)(1)(C), ELR STAT. CAA § 107(d)(1)(C) (declaring that areas designated under prior law would continue their existing classifications); but see Rehearing Denial at 4 (summarily rejecting the theory that CAA § 181's references to CAA § 107 were designed only to incorporate CAA § 107(d)(1)(C)).

162. American Trucking, 175 F.3d at 1056, 29 ELR at 21081.

163. Oren, supra note 103; Michael Herz, Judicial Textualism Meets Congressional Micromanagement: A Potential Collision in Clean Air Act Interpretation, 16 HARV. ENVTL. L. REV. 175 (1991); Sidney A. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 ADMIN. L. REV. 1 (1994).

164. Harold J. Krent, Delegation and Its Discontents, 94 COLUM. L. REV. 710 (1994) (reviewing DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY (1993)).

30 ELR 10034 | Environmental Law Reporter | copyright © 2000 | All rights reserved