Circuit Split Over APA Notice and Comment Requirements Derails EPA's Clean Air Act Non-Attainment Designations

Recognizing that many areas of the country had failed to achieve the Clean Air Act's ambitious air quality goals, Congress in 1977 ordered major revisions in state implementation plans (SIPs) to incorporate more stringent regulatory requirements for polluting activities in those regions. As a necessary first step in this program, the Clean Air Act Amendments of 1977 directed the Environmental Protection Agency (EPA) to designate those areas in which national ambient air quality standards had not been attained.

Instead of the smooth preliminary stage in the SIP revision process that Congress envisioned, the Agency's designation of non-attainment areas was quickly challenged by industry and has since become entangled in a messy disagreement among the federal courts of appeals. Two circuits have ruled that EPA violated the Administrative Procedure Act (APA) by acting without prior notice and comment and have invalidated certain designations. A third has held, on the contrary, that the Agency properly invoked the "good cause" exemption to the APA's procedural requirements given the short statutory timetable provided for the SIP revision process and the detrimental effects of any further delay in attaining the national air quality standards.

This conflict among the circuit courts merits close analysis for several reasons. Similar challenges to designations of non-attainment areas in other regions are pending before three other courts of appeals. Moreover, the primary focus of this circuit split is the delicate question of when an agency, because of time constraints or the nature of the problem it is seeking to address, should be allowed to escape the APA's provisions for assuring meaningful public participation in informal rule making. In addition, one of the decisions examines and applies a potentially far-reaching provision in the 1977 Clean Air Act amendments which precludes a reviewing court from reversing agency action for procedural violationa that do not significantly change the challenged rules.

Background

The Clean Air Act Amendments of 1977 directed, as part of a renewed federal-state effort to achieve healthy air throughout the nation, that each state submit a list of the non-attainment areas within its borders to EPA within 120 days of August 7, 1977, the date of enactment.¹ EPA was to issue these lists with necessary modifications by February 3, 1978.² Most states submitted their lists to EPA on or before the December 5 statutory deadline; some, however, were as much as two months late. The Agency did not promulgate the final designations until March 3, 1978,³ one month behind schedule. Citing the need to expedite the process, EPA published the lists as an immediately effective "final rule" without affording prior notice and an opportunity to comment as is required by §§ 553(b) and 553(c) of the APA.⁴ The Agency justified this procedural shortcut by invoking the "good cause" exception of § 553(b)(B).⁵ EPA asserted that the delay involved in providing notice and a comment period prior to publication of the designations would have prevented the states from completing their SIP revisions by the January 1, 1979 statutory deadline. The Agency stated that this prospect, in combination with the adverse health effects associated with any additional delay in achieving the ambient standards in non-attainment areas, constituted good cause within the meaning of § 553(b)(B) for dispensing with prior notice and comment.⁶ The Agency did, however, announce its willingness to accept comments for 60 days after the date of promulgation and later made several revisions in the published non-attainment lists in response to post-promulgation submissions.⁷

In response to EPA's publication of the lists, industrial parties mounted challenges to specific designations in a number of federal courts of appeals, alleging both substantive and procedural deficiencies. The central objection in all these cases was that EPA's action was invalid because the Agency had violated the requirements of § 553 of the APA by failing to provide notice and an opportunity for comment prior to the promulgation of the designations.

[9 ELR 10174]

The Third and Fifth Circuit Decisions

The petitioners met with success in the first two judicial decisions addressing this issue. The Third and Fifth Circuits, in opinions issued almost simultaneously, accepted the petitioners' procedural contentions and ruled that EPA had improperly adopted the designations as a final rule without affording prior notice and an opportunity for comment.

In Sharon Steel Corp. v. Environmental Protection Agency,⁸ two steel companies attacked EPA's designation of four regions in Pennsylvania as non-attainment areas on the ground that the Agency lacked "good cause" to dispense with prior notice and comment. Noting that EPA had conceded promulgation of the designations to be rule making subject to § 553, the Third Circuit emphasized at the outset of its relatively brief opinion the narrowness of the grounds on which an agency may invoke the "good cause" exemption from notice and comment procedures.⁹ The court pointed out that the difficulties which EPA inevitably would face if it were to comply with the compressed designation timetable must have been apparent to Congress when it drafted the schedule. It thus saw Congress' failure to express an intent to override the procedural safeguards of the APA as a strong indication that Congress instead intended EPA to afford prior notice and comment as best it could within the abbreviated statutory timetable.

The court flatly rejected the Agency's contention that the compressed timetable precluded such public participation in development of the final designations. Noting that EPA made few modifications in the lists of non-attainment areas submitted by Pennsylvania, the court found that the Agency should have been able to publish the state list as a proposed rule on December 15, 1977 and accept comments on it until January 15, 1978. Assuming 90 days would be needed to review these comments and make any necessary modifications, EPA could have then issued the final rule on or about April 15, 1978. Although this would have been more than a month later than the actual date of promulgation, the court stressed that because EPA was adopting the state designations substantially without modification, the states could have begun to draft their revised SIPs when they submitted their lists on December 5, 1977. Moreover, the court pointed out, this would have provided as much guidance to the states as the final designations actually promulgated on March 3, 1978, which were subject to continuing uncertainty because of the possibility of subsequent modification in response to post-promulgation comments.

The court emphatically rejected the Agency's contention that its procedural violation was rendered harmless by the provision of a 60-day comment period following issuance of the rule. Prior notice and comment, the court stressed, allows public input into the rule-making process while the decision maker is still receptive to different points of view. Post-promulgation comment, the court explained, in effect places upon the person who comments the burden of changing the decision maker's mind and thus negates effective public participation.

Formulating a remedy for this procedural violation, however, proved troublesome. The Third Circuit expressed concern that too broad a grant of relief might serve to frustrate implementation of the reinvigorated congressional scheme for controlling air pollution. The court therefore, as an exercise of its equitable powers, invalidated the four specific designations at issue only as they applied to the two petitioners at bar, leaving the rest of the rule in effect.

The Fifth Circuit reached similar conclusions in United States Steel Corp. v. Environmental Protection Agency.¹⁰ There again two steel companies had challenged the non-attainment designation of two regions of Alabama, alleging that EPA was not entitled to a good cause exemption from the APA's prior notice and comment requirements.

Moving to the central issue of the scope of the § 553(b)(B) exemption,¹¹ the court reiterated the principle that the exception should be read narrowly and that the existence of short deadlines for agency action does not in itself constitute good cause.¹² Such a deadline is merely one factor to be considered, the court explained, in determining whether affording prior notice and comment would be "impracticable." In this instance, the court continued, the Agency had not shown any reason why it could not have published the Alabama designations as a proposed rule upon receipt from the state and received comments while it was reviewing the list. The state, meanwhile, could have begun its SIP revisions based on its own list of non-attainment areas, which EPA would modify only slightly.

The court was plainly skeptical of EPA's asserted concern for the inviolability of the statutory timetable in light of the Agency's issuance of the final designations a full month after the statutory deadline. The good cause exception, the court cautioned, should not be used simply to relieve administrative inconvenience but only to prevent delay which would result in "real harm," such as extreme economic dislocation or conditions which foster violence.¹³

[9 ELR 10175]

The Fifth Circuit likewise vociferously rejected EPA's contention that its acceptance of comments after the effective date of the designations cured its failure to provide notice and comment prior to their promulgation. The court emphasized that comments before rule promulgation are fundamentally more meaningful than submissions after a final rule has been issued. The Agency is much more likely to give real consideration to alternative proposals in the first instance than in the second. Acceptance of EPA's position, the court warned, would in the long run deprive interested parties of any way to enforce their § 553 rights to prior notice and comment. The court also concluded that it could thus not be assumed that the Agency's procedural error had not prejudiced the petitioners.

The Fifth Circuit, as had the Third, took great pains to limit the adverse effect of its grant of relief on implementation of the revised national air pollution control program. The court remanded the challenged designations to the Agency and established a new timetable for state SIP revisions extending beyond the original statutory deadline. Because the revised Alabama SIP would not be in place by July 1, 1979, the date on which EPA's authority to govern activities in non-attainment areas under its Emission Offset Policy¹⁴ was to expire by the terms of the statute,¹⁵ the court held that the Agency could continue to apply its Offset Ruling in such areas until SIP revision is complete. The court's objective was to assure that neither a total moratorium on new growth nor an unrestrained burst of new construction would occur.

The Seventh Circuit Decision

EPA was shaken by its back-to-back defeats in Sharon Steel and U.S. Steel. Despite the relatively circumscribed remedy granted in each case, the total rejection by both courts of the Agency's attempted use of the § 553(b)(B) exception raised the specter of universal judicial disapproval of its final non-attainment designations. The agency thus breathed a grateful sigh of relief when the Senventh Circuit three months later broke this developing pattern by upholding EPA's invocation of the good cause exception for its designation of non-attainment areas in Indiana.

In United States Steel Corp. v. Environmental Protection Agency,¹⁶ the Seventh Circuit, like the Third and Fifth before it, was faced with similar substantive and procedural challenges by two steel companies to the non-attainment designation of regions in which they had plants. Unlike the Third and Fifth Circuits, however, the court had doubts even as to whether EPA's action in promulgating the designations constituted rule making subject to the requirements of § 553.¹⁷ This initial departure set the tone for the rest of the Seventh Circuit's opinion, even though the court ultimately found no need to reach this particular issue because EPA had termed the designations to be final rules.

The Seventh Circuit opened its examination of the alleged procedural violations by noting that § 553 actually contains two distinct good cause exceptions. Section 553(b)(B) allows an agency to dispense with notice and comment where it "for good cause" finds that such procedures "are impracticable, unnecessary or contrary to the public interest."¹⁸ Section 553(d)(3), on the other hand, allows the agency to dispense with the required publication of a substantive rule not less than 30 days prior to its effective date simply "for good cause found and published with the rule."¹⁹ In the court's view, these two provisions set different standards, with the latter establishing a somewhat broader exception than the former.²⁰ Noting that EPA had fulfilled neither the requirements for notice and comment nor the duty of prior publication, the court made the perplexing statement that the Agency could thus rely on either of the "good cause" provisions to justify the manner in which it had promulgated the rule. The court immediately swept over this point, however, by ruling that EPA's action was justifiable under both exceptions.

Turning to § 553(b)(B), the court asserted that the legislative history shows Congress intended this impracticability-based exception to allow the omission of prior notice and comment when regular rule-making procedures would interfere with an agency's ability to perform its functions within statutory deadlines. In at least two cases, the court contended, short schedules for agency action [9 ELR 10176] have been the basis for judicial validation of an agency's use of the good cause exemption.²¹ It then held that the tight statutory timetable under which EPA was acting, in view of the essential part these designations played in the equally compressed SIP revision process and the serious threat of adverse health effects from even brief delays in the process constituted "good cause" supporting the Agency's determination that prior notice and comment procedures would be "impracticable" and "contrary to the public interest." Alternatively, even if these factors failed to satisfy the impracticability standard of § 553(b)(B), the court ruled, the Agency nonetheless had established "good cause" within the broader meanining of that term in § 553(d)(3).

The Seventh Circuit disagreed strongly with the Third and Fifth Circuits' assertions that prior notice and comment could have been afforded without significantly disrupting the statutory timeable for SIP revision.²² It also contended that despite the contortions of the Third and Fifth Circuits in trying to mitigate the adverse impact of their remand orders, Sharon Steel and U.S. Steel would in fact disrupt and seriously delay the implementation of the statutory scheme. The court was most vehement, however, in its denunciation of the Fifth Circuit's apparent conclusion that threatened violence in gas station lines²³ constitutes "real harm" for the purpose of invoking the good cause exception while widespread illness and mortality due to continued high levels of air pollution do not.²⁴

The Seventh Circuit then attempted to outflank Sharon Steel and U.S. Steel by ruling that even if the procedural requirements of § 553 had been violated, it was precluded from reversing EPA's designations by a recent amendment to the Clean Air Act which the other circuits had not even considered. Out of concern that judicial reversal of agency actions for minor procedural errors might frustrate implementation of the revised statutory scheme, Congress in 1977 imposed limitations on judicial review of certain rule-making functions under the Act. Reviewing court may now invalidate EPA rules promulgated under certain sections of the Act on procedural grounds only if the failure to follow required procedures was arbitrary, the petitioner's procedural objection was raised during the public comment period, and the error was "so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would [otherwise] have been significantly changed."²⁵

Section 107 of the Act, which mandates the designation of non-attainment areas, is not one of the specified sections²⁶ to which this provision applies, however. The Seventh Circuit, undaunted by this apparently rigid barrier to application of the statuory "harmless error" provision in its review of EPA's non-attainment designations, drew upon an arguably irrelevant savings clause²⁷ and an unenlightening abstract from the legislative history²⁸ to conclude that Congress intended this limitation to extend to review of all EPA rule making under the Act.²⁹

The court then found that the Agency's failure to provide prior notice and comment was not arbitrary given the statutory time constraints under which it was working and the delays such procedures would have entailed. The Seventh Circuit also determined that the final designations would not have been substantially different if prior notice and comment had been provided. Many changes in the final rule seemed to reflect the post-promulgation comments and this satisfied the court that EPA had given full and objective consideration to these submissions. In the court's view, there was thus no basis upon which to conclude that the result would have been any different if the comments had been reviewed prior to the effective date of the designations.

The Seventh Circuit therefore determined that the Agency's invocation of the "good cause" exception was proper, and that even if there had been an APA violation, reversal was not permitted under § 307(d)(9)(D) of the Clean Air Act. Rejecting several allegations of substantive deficiencies in the challenged designations with little difficulty, the court denied the petitions.

[9 ELR 10177]

Analysis

Interpretation of the Good Cause Exemption

The right to receive notice of and submit comments on proposed agency rules is one of the most central aspects of informal substative rule making under the APA.³⁰ Courts have thus been understandably reluctant to allow agencies to use § 553(b)(B) to evade this important requirement for prior notice and comment simply because of a fast approaching deadline for agency action.³¹ A more important consideration is the nature and immediacy of the harm that will result from the delay entailed by such procedures. The common thread that runs through those cases in which an agency's invocation of the good cause exception has been judicially vindicated is the existence of an "emergency" in which notice and comment procedures would either cause some acute harm or defer its abatement.³²

In its decision in U.S. Steel Corp. v. EPA, the Seventh Circuit, apparently frustrated with the steel industry's foot-dragging on pollution control over the years,³³ struck what it saw as a blow for expeditious implementation of the 1977 Clean Air Act amendments' program for cleaning the nation's dirtiest air. Although its goal was laudable, the court gave insufficient attention to the danger involved in any retreat from strict application of the §§ 553(b) and 553(c) requirements for notice and comment in informal rule making. The case law stresses the fundamental importance of such public participation and emphatically denies that a post-promulgation opportunity to submit views in an acceptable substitute for prior notice and comment.³⁴ The Third and Fifth Circuits were much more cognizant than the Seventh of the possibility that a broadening of the good cause exception would open a Pandora's Box of agency attempts to avoid prior notice and comment in their rule making.

The Seventh Circuit's twin rulings that § 553(b)(B) and § 553(d)(3) provide different standards for good cause and that either provision could be used to justify EPA's suspension of notice and comment procedures seems designed to cloud rather than clarify the issue. Commentators have, as the court noted, viewed the two provisions as requiring agencies to make essentially the same showing to meet the good cause standard.³⁵ The two subsections speak to different aspects of the rule-making process, however. The former permits waiver of notice and comment while the latter permits promulgation of rules on an "immediately effective" basis, in lieu of the 30-day phase-in period normally required. If they do establish different standards of good cause, as the Seventh Circuit suggests, they therefore cannot be applied interchangeably.

The court's lack of precision on this point is less worrisome, however, than its eventual application of the good cause exemption. By reading § 553(b)(B) to encompass situations in which the use of regular rule-making procedures might interfere with the Agency's ability to perform mandated functions within statutorily dictated time constraints, the court in effect would excuse any agency faced with a tight statutory deadline from full compliance with the APA's public participation requirements. Moreover, the court's assertion that § 553(d)(3) provides an even broader good cause standard which can be satisfied merely by showing "demonstrable urgency" apparently widens the escape hatch even farther but provides little guidance as to where the lines are now to be drawn.

The upshot of the Seventh Circuit's discussion seems to be a significant expansion of the good cause exemption in § 553. Under the court's reasoning, the exception apparently could be invoked to dispense with prior notice and comment in the development of any regulations under a statutory deadline, particularly those aimed as protecting public health and safety. The difficulty is that health and safety issues are often subject to considerable scientific, technical, and economic uncertainty and are therefore precisely the sort of matters upon which prior public input can be most valuable.

[9 ELR 10178]

The court's holding on the good cause question can also be read more narrowly, however. While asserting that the tight statutory timetable was itself enough to warrant applying the exception to EPA's designations, the court emphasized in addition that the adverse health impacts of continued non-attainment were sufficiently serious to present a demonstrably urgent need for prompt regulatory action. Viewed from this perspetive, the court's holding was based on both the statutory deadline and its belief that "real harm" in the form of illness and mortality from continued high levels of air pollution would result from the delay accompanying notice and comment procedures. Under this reading, the Seventh Circuit's formulation of the legal standard for application of the exception is not really divergent from that of the Third and Fifth Circuits.The different outcomes can instead be ascribed to different views as to what constitutes an "emergency" threatening "real harm." The Third and Fifth Circuits see these terms as encompassing the immediate prospects of acute economic dislocation or violence. The Seventh Circuit takes the view that chronic and less direct harms such as the cumulatively debilitating effects of air pollution should also be included.³⁶

Application of the § 307(d) Harmless Error Provision

The Fifth Circuit ruled cursorily that § 307(d) of the amended Clean Air Act does not apply to designations issued under § 107(d) because they are not among the actions enumerated in § 307(d)(1).³⁷ The Third Circuit did not even treat this question in Sharon Steel, apparently likewise assuming § 307(d) to be inapplicable. The Seventh Circuit's conclusion that the "harmless error" provision of § 307(d)(9)(D) applies not only to those sections enumerated but also to all other EPA rule making under the Act thus seems bold indeed.

The court's use of a snippet from the legislative history³⁸ and the ambiguous statement in § 307(e)³⁹ that review of EPA regulations is to be "as provided in this section" to override the omission of § 107(d) designations from the carefully constructed list of actions to which § 307(d) is to apply hardly breeds confidence in the court's conclusion. Moreover, there is something unsatisfying if not troubling in its assertion that subsequent changes in EPA's designations show the Agency gave full and objective consideration to post-promulgation comments and that the rule thus would not have been substantially different had an opportunity for prior comment been afforded. The court here ignored the fundamental principle that post-promulgation comment, when the agency's decision has been made, is simply not equivalent to an opportunity for prior comment when the decision maker is presumably still receiptive to other points of view. As the Fifth Circuit correctly warned, adopting this position would make the requirements of § 553 virtually unenforceable. An agency could simply issue a final rule, invite post-promulgation comment, and then republish the rule with minor modifications. A challenger's burden of showing that the rule would have been substantially different had prior notice and comment been afforded would at that point be insurmountable in most instances.

The Seventh Circuit's blunderbuss application of § 307(d) threatens, if widely adopted, to short-circuit full public participation in all Clean Air Act rule making. It may also have additional unintended consequences in the form of lessening EPA's incentive to comply with important procedural restrictions on its actions. For example, if there were ex parte contacts with the decision maker after the comment period closed, it would be all but impossible for a challenger to show that the finalrules would have been substantially different had these contacts not occurred. Here again, although the Seventh Circuit was attempting to facilitate EPA's implementation of the amended Clean Air Act, its decision may serve to strip the public of meaningful participation in the rule-making process under the Act and provide EPA with an across-the-board defense for failures to follow required procedures.

Conclusion

The conflict presented by these three cases is of particular interest because further judicial developments on these legal issues are likely in the near future. Similar cases are now pending before the District of Columbia, Sixth, and Ninth Circuit Courts of Appeals,⁴⁰ and the disappointed challengers in U.S. Steel Corp. have petitioned the Supreme Court to review the Seventh Circuit's decision.

The practical effects of the circuit split are also significant. Despite the efforts of the Third and Fifth Circuits to cushion the impact of their grants of relief in Sharon Steel and U.S. Steel, these rulings have disrupted and delayed the SIP revision process to some degree. They also precipitated an unsuccessful attempt by some members of Congress to amend the Act to extend the SIP revision deadline and played a part in forcing EPA to develop a policy for withholding the application of drastic sanctions when the process was not completed by that date.⁴¹ Such delays in the long and costly battle to control air pollution are undeniably frustrating. To keep them from spreading, however, the Seventh Circuit stretched the good cause exemption in § 553 of the APA and the harmless error provision in § 307(d)(9)(D) of the Clean Air Act far beyond their proper spheres of application.

Balancing the need to keep the nation's revised air pollution control program on track against the long-run threat to meaningful public participation in Clean Air Act and indeed all § 553 rule making placed all three courts in a visibly uncomfortable position. While the decisions of the Third and Fifth Circuits tend to preserve [9 ELR 10179] the integrity of the APA's notice and comment guarantees, they accept possibly severe health consequences in the short term. The Seventh Circuit's contrary result shows genuine sensitivity to these serious health concerns. The decision would have been more palatable, however, if the courtd had limited its expansion of the good cause exemption to situations raising such chronic public health threats and refrained from a strained and overly expansive reading of the Clean Air Act's procedural harmless error provision.

1. Section 107(d)(1), 42 U.S.C. § 7407(d)(1), ELR STAT. & REG. 42210.

2. Section 107(d)(2), 42 U.S.C. § 7407(d)(2), ELR STAT. & REG. 42210.

3. 40 C.F.R. §§ 81.300-81.356, 43 Fed. Reg. 8962 (Mar. 3, 1978).

4. 5 U.S.C. §§ 553(b) & 553(c), ELR STAT. & REG. 41002. General notice of proposed rule making must be published in the Federal Register; after such notice, interested parties must be given an opportunity to participate through submission of written data, views, or arguments.

5. [T]his subsection does not apply —

(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

5 U.S.C. § 553(b)(B), ELR STAT. & REG. 41002.

6. 43 Fed. Reg. at 8962.

7. 43 Fed. Reg. 45993 (Oct. 5, 1978).

8. 597 F.2d 377, 9 ELR 20316 (3d Cir. Apr. 25, 1979).

9. The court drew this principle from its earlier decision in American Iron & Steel Inst. v. EPA, 568 F.2d 284, 292, 7 ELR 20738, 20740 (3d Cir. 1977) (agency which had more than two years to promulgate rules under court order failed to show good cause for dispensing with notice and comment).

10. 595 F.2d 207, 9 ELR 20311 (5th Cir. May 3, 1979).

11. The court first found that the controversy was ripe for adjudication because the mere fact of non-attainment designation imposes restrictions on petitioners' plants and activities within the designated areas. The court also concluded with little analysis that the designations were "rules" subject to the requirements of § 553 of the APA.

12. In so doing, the court relied, as had the Third Circuit, on American Iron & Steel Inst. v. EPA, 568 F.2d 284, 292, 7 ELR 20738, 20740 (3d Cir. 1977). But it also looked to Shell Oil Co. v. FEA, 527 F.2d 1243, 1248 (Temp. Emer. Ct. App. 1975) (uncertainty over whether Economic Stabilization Act would be allowed to expire by its own terms on April 30, 1974 did not provide good cause for issuing rent control regulations on that date without prior notice and comment).

13. As examples of instances in which the exemption has been properly invoked, the court pointed to cases involving the announcement of future government price controls, Nader v. Sawhill, 514 F.2d 1064, 1068 (Temp. Emer. Ct. App. 1975), DeRieux v. Five Smiths, Inc., 499 F.2d 1321, 1322 (Temp. Emer. Ct. App.), cert. denied, 419 U.S. 896 (1974), and gasoline retailing regulations designed to end violence in gas lines, Reeves v. Simon, 507 F.2d 455, 458-59 (Temp. Emer. Ct. App. 1974), cert. denied, 420 U.S. 991 (1975).

14. 40 C.F.R. § 51.18, 41 Fed. Reg. 55524 (Dec. 16, 1976). This policy ruling interpreted the Clean Air Act to allow construction of new polluting facilities or the modification of existing facilities in non-attainment areas provided stringent control technology was used and the additional emissions were more than offset by reductions in air pollution from other facilities in the immediate vicinity.

15. Section 129(a) of the Clean Air Act Amendments of 1977 expressly provided that EPA's Offset Ruling would continue in force until July 1, 1979. Pub. L. 95-95, § 129(a) (uncodified), reprinted at ELR STAT. & REG. 42238.

16. __ F.2d __, 9 ELR 20560 (7th Cir. Aug. 1, 1979), petition for cert. filed, 48 U.S.L.W. 3224 (U.S. Sept. 21, 1979) (No. 79-486).

17. The court acknowledged that general policy statements directed to specified parties are rules under the APA. It contended, however, that the challenged non-attainment designations were instead directly analogous to the Secretary of Transportation's designation of areas in public parks as necessary routes for highway construction. Such action was described by the Supreme Court in Overton Park as "plainly not an exercise of a rulemaking function." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414, 1 ELR 20110, 20113 (1971).

18. See note 5 supra.

19. 5 U.S.C. § 553(d)(3), ELR STAT. & REG. 41002.

20. The court's rationale for this conclusion was essentially two-fold. It noted first that § 553(b)(B) contains qualifying language relating to practicality, necessity, and public interest considerations which is absent from § 553(d)(3). This facial discrepancy between the two subsections has not been deemed significant by commentators, however. See K. DAVIS, ADMINISTRATIVE LAW TREATISE § 6.29 at 590 (2d ed. 1979) (good cause exemptions in § 553(b)(B) and (d)(3) "have about the same meaning"). The court also pointed out that while § 553(b)(B) dispenses with notice and comment altogether, § 553(d)(3) simply envisions that comments be submitted after rather than before promulgation of the final rules and thus should encompass a broader range of situations. The latter observation is evidently based on the court's assumption that post-promulgation comments are a meaningful mode of public participation.

21. The two cases cited by the court to establish this proposition provide less than solid support for its argument. In one, the Federal Communications Commission was allowed to dispense with notice and comment procedures for revisions in a license fee schedule for which a first of the month effective date was necessary for prorating annual charges and of which the affected parties had actual notice. Clay Broadcasting Corp. v. United States, 464 F.2d 1313 (5th Cir. 1972), rev'd on other grounds sub nom. National Cable Television Ass'n v. United States, 415 U.S. 336 (1974). In the other, the Federal Energy Administration's action in promulgating regulations delineating an exemption from its oil price controls without prior notice and comment was upheld. Energy Reserves Group, Inc. v. Federal Energy Administration, 447 F. Supp. 1135 (D. Kan. 1978). Congress had required that the regulations be issued within 15 days, but the court relied as well on the danger of economic dislocation in the form ofoil being held off the market in anticipation of price increases in concluding that the good cause exception had been properly invoked. Id. at 1150.

22. The court estimated that a one-month comment period followed by four months for the Agency to review and respond to the submissions would have delayed the Agency's issuance of final designations by at least five months and left the states with less than six months in which to formulate their revised SIPs.

23. See text at note 13, supa.

24. To dramatize this point, the court reprinted from the House report on the Clean Air Act amendments, a table depicting the level of illness attributable to air pollution. 9 ELR at 20562 n.10.

25. Section 307(d)(9)(D), 42 U.S.C. § 7607(d)(9)(D), ELR STAT. & REG. 42259.

26. Section 307(d)(1) provides that § 307(d) applies to listed actions taken under 15 sections of the Act. 42 U.S.C. § 7607(d)(1), ELR STAT. & REG. 42258.

27. Section 307(e) provides:

Nothing in this chapter shall be construed to authorize judicial review of regulations or orders of the Administrator under this chapter except as provided in this section.

42 U.S.C. § 7607(e), ELR STAT. & REG. 42259.

28. H.R. REP. NO. 294, 95th Cong., 1st Sess. 322 (1977).

29. The court toyed with a less sweeping approach to applying the harmless error provision to EPA's action. Noting that the non-attainment designations are an integral part of several listed actions, such as the promulgation or revision of a SIP by the EPA Administrator under § 7410(c), it asserted that they could "arguably" be viewed as fitting within these listed categories for the purposes of judicial review under § 7607(d)(9)(D). 9 ELR at 20563 n.12.

30. See generally, K. DAVIS, ADMINISTRATIVE LAW TREATISE §§ 6.1, 6.2, 6.7 (2d ed. 1979).

31. See, e.g., American Iron & Steel Inst. v. EPA, 568 F.2d 284, 292, 7 ELR 20738, 20740 (3d Cir. 1977) (two and one-half year court-imposed deadline insufficient to provide good cause); Shell Oil Co. v. FEA, 527 F.2d 1243, 1248 (Temp. Emer. Ct. App. 1975) (impending expiration of statutory authority to impose price controls not good cause); Consumers Union of U.S., Inc. v. Sawhill, 393 F. Supp. 639 (D.D.C.),aff'd, 523 F.2d 1404 (Temp. Emer. Ct. App. 1975) (one-year statutorily imposed deadline insufficient to provide good cause).

32. See, e.g., Nader v. Sawhill, 541 F.2d 1064, 1068 (Temp. Emer. Ct. App. 1975) (widespread economic dislocation); Reeves v. Simon, 507 F.2d 455, 458-59 (Temp. Emer. Ct. App. 1974), cert. denied, 420 U.S. 991 (1975) (violence in lines at gas stations); DeRieux v. Five Smiths, Inc., 499 F.2d 1321, 1332 (Temp. Emer. Ct. App.), cert. denied, 419 U.S. 896 (1974) (widespread economic dislocation); Union of Concerned Scientists v. AEC, 499 F.2d 1069, 4 ELR 20605 (D.C. Cir. 1974) (need for interim criteria for nuclear reactor safety system); Energy Reserves Group v. FEA, 447 F. Supp. 1135 (D. Kan. 1978) (widespread economic dislocation); but see, Detroit Edison Co. v. EPA, 496 F.2d 244, 4 ELR 20388 (6th Cir. 1974) (good cause exemption disallowed because of substantive impact of rule clarifying SIP provision).

33. The court reprinted in a footnote an except from the legislative history of the 1977 Clean Air Act amendments in which officers of five steel companies, including one of the two petitioners before the court, admitted to a House subcommittee that not one of their plants was in compliance with the Clean Air Act's requirements five years after it was enacted. See H.R. REP. NO. 294, 95th Cong., 1st Sess. 210-11 (1977). Because of this, the court explained, it was reluctant to allow the companies to delay compliance even further through these "procedural challenges." 9 ELR at 20562 n.5.

34. See, e.g., Maryland v. EPA, 530 F.2d 215, 222, 5 ELR 20651, 20654 (4th Cir. 1975), vacated on other grounds sub nom. EPA v. Brown, 431 U.S. 99, 7 ELR 20375 (1977) ("The reception of comments after all the crucial decisions have been made is not the same as permitting active and well prepared criticism to become a part of the decision-making process."); City of New York v. Diamond, 379 F. Supp. 503, 517 (S.D.N.Y. 1974) ("Permitting the submission of views after the effective date is no substitute for the right of interested persons to make their views known to the agency in time to influence the rule making process in a meaningful way."); Kelly v. Department of Labor 339 F. Supp. 1095, 1101 (E.D. Cal. 1972) ("We doubt that persons would bother to submit their views or that the Secretary would seriously consider their suggestions after the regulations are a fait accompli.").

35. See K. DAVIS, ADMINISTRATIVE LAW TREATISE § 6.29 at 590 (2d. ed. 1979).

36. The position of the Third and Fifth Circuits is buttressed by United States v. Gavrilovic, 551 F.2d 1099 (8th Cir. 1977), in which the Eighth Circuit disallowed an agency attempt to invoke the good cause exemption in issuing an immediately effective reclassification of a dangerous drug because there was no "acute and immediate" threat to public health. Id. at 1105.

37. 42 U.S.C. § 7607(d)(1), ELR STAT. & REG. 42258.

38. H.R. REP. NO. 294, 95th Cong., 1st Sess. 322 (1977).

39. 42 U.S.C. § 7607(e), ELR STAT. & REG. 42259.

40. New Jersey Department of Environmental Protection v. EPA. No. 78-1392 (D.C. Cir.); Columbus & Southern Ohio Electric Co. v. Costle, No. 78-3197 (6th Cir.); Western Oil & Gas Ass'n v. EPA, No. 78-1941 (9th Cir.).

41. See Environmental Protection Agency, Policy Memorandum on Application of Clean Air Act Sanctions After July 1, 1979, 44 Fed. Reg. 37679, 9 ELR 30003 (June 28, 1979).