Natural Resources Defense Council, Inc. v. Train

• Citation: 545 F.2d 320
• Decision Date: 10 November 1976
• Docket Number: D,No. 146,146
• Parties: , 7 Envtl. L. Rep. 20,004 NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs-Appellees, v. Russell TRAIN, as Administrator of the U.S. Environmental Protection Agency, and the U.S. Environmental Protection Agency, Defendants-Appellants. ocket 76-6075.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 320

545 F.2d 320

9 ERC 1425, 7 Envtl. L. Rep. 20,004

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiffs-Appellees, v. Russell TRAIN, as Administrator of the U.S. Environmental

Protection Agency, and the U.S. Environmental

Protection Agency, Defendants-Appellants.

No. 146, Docket 76-6075.

United States Court of Appeals, Second Circuit.

Argued Sept. 16, 1976.

Decided Nov. 10, 1976.

Michael H. Dolinger, Asst. U.S. Atty., New York City (Robert B. Fiske, Jr., U.S. Atty. for the S.D.N.Y, Mary C. Daly, Asst. U.S. Atty., New York City, and Merideth Wright, Atty., E.P.A., of counsel), for appellants.

David Schoenbrod, Roger Beers (Natural Resources Defense Council, Inc.), New York City, of counsel, for appellees.

Before SMITH, OAKES and MESKILL, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

The Environmental Protection Agency, ("EPA"), and its Administrator, Russell Train, appeal from an order of the United States District Court for the Southern District of New York, Charles E. Stewart, Jr., Judge, in an action under § 304 of the Clean Air Act, as amended, 42 U.S.C. § 1857h-2(a), requiring the Administrator of the EPA, within thirty days, to place lead on a list of air pollutants under § 108(a)(1) of the Clean Air Act, as amended, 42 U.S.C. § 1857c-3(a)(1), ("the Act"). ¹ We affirm the order of the district court.

The 1970 Clean Air Act Amendments provide two different approaches for controlling pollutants in the air. One approach, incorporated in §§ 108-110, 42 U.S.C. §§ 1857c-3 to c-5, provides for the publication of a list of pollutants adverse to public health or welfare, derived from "numerous or diverse" sources, the promulgation of national ambient air quality standards for listed pollutants, ² and subsequent implementation of these standards by the states. The second approach of the Act provides for control of certain pollutants at the source, pursuant to §§ 111, 112, 202, 211 and 231 (42 U.S.C. §§ 1857c-6, c-7, f-1, f-6c, f-9). ³

The relevant part of § 108 reads as follows:

(a)(1) For the purpose of establishing national primary and secondary ambient air quality standards, the Administrator shall within 30 days after December 31, 1970, publish, and shall from time to time thereafter revise, a list which includes each air pollutant

(A) which in his judgment has an adverse effect on public health or welfare;

(B) the presence of which in the ambient air results from numerous or diverse mobile or stationary sources; and

(C) for which air quality criteria had not been issued before December 31, 1970, but for which he plans to issue air quality criteria under this section.

Once a pollutant has been listed under § 108(a)(1), §§ 109 and 110 of the Act are automatically invoked. ⁴ These sections require that for any pollutant for which air quality criteria are issued under § 108(a)(1)(C) after the date of enactment of the Clean Air Amendments of 1970, the Administrator must simultaneously issue air quality standards. Within nine months of the promulgation of such standards states are required to submit implementation plans to the Administrator. § 110(a)(1). The Administrator must approve or disapprove a state plan within four months. § 110(a)(2). If a state fails to submit an acceptable plan, the Administrator is required to prepare and publish such a plan himself. § 110(c). State implementation plans must provide for the attainment of primary ambient air quality standards no later than three years from the date of approval of a plan. § 110(a)(2)(A)(i). Extension of the three-year period for attaining the primary standard may be granted by the Administrator only in very limited circumstances, and in no case for more than two years. § 110(e). ⁵

The EPA concedes that lead meets the conditions of §§ 108(a)(1)(A) and (B) that it has an adverse effect on public health and welfare, and that the presence of lead in the ambient air results from numerous or diverse mobile or stationary sources. The EPA maintains, however, that under § 108(a)(1)(C) of the Act, the Administrator retains discretion whether to list a pollutant, even though the pollutant meets the criteria of §§ 108(a)(1)(A) and (B). The EPA regards the listing of lead under § 108(a)(1) and the issuance of ambient air quality standards as one of numerous alternative control strategies for lead available to it. Listing of substances is mandatory, the EPA argues, only for those pollutants for which the Administrator "plans to issue air quality criteria." He may, it is contended, choose not to issue, i. e., not "plan to issue" such criteria, and decide to control lead solely by regulating emission at the source, regardless of the total concentration of lead in the ambient air. The Administrator argues that if he chooses to control lead (or other pollutants) under § 211, he is not required to list the pollutant under § 108(a)(1) or to set air quality standards.

The EPA advances three reasons for the position that the Administrator has discretion whether to list a pollutant even when the conditions of § 108(a)(1) (A) and (B) have been met: the plain meaning of § 108(a)(1)(C); the structure of the Clean Air Act as a whole; and the legislative history of the Act.

The issue is one of statutory construction. We agree with the district court and with appellees, National Resources Defense Council, Inc., et al., that the interpretation of the Clean Air Act advanced by the EPA is contrary to the structure of the Act as a whole, and that if accepted, it would vitiate the public policy underlying the enactment of the 1970 Amendments as set forth in the Act and in its legislative history. Recent court decisions are in accord, and have construed § 108(a)(1) to be mandatory if the criteria of subsections A and B are met. ⁶

I Section 108(a)(1) and the Structure of the Clean Air Act

Section 108(a)(1) contains mandatory language. It provides that "the Administrator shall . . . publish . . . a list . . . ." (Emphasis added.) If the EPA interpretation were accepted and listing were mandatory only for substances "for which (the Administrator) plans to issue air quality criteria . . . ", then the mandatory language of § 108(a)(1)(A) would become mere surplusage. The determination to list a pollutant and to issue air quality criteria would remain discretionary with the Administrator, and the rigid deadlines of § 108(a)(2), § 109, and § 110 for attaining air quality standards could be bypassed by him at will. If Congress had enacted § 211 as an alternative to, rather than as a supplement to, §§ 108-110, then one would expect a similar fixed timetable for implementation of the fuel control section. The absence of such a timetable for the enforcement of § 211 lends support to the view that fuel controls were intended by Congress as a means for attaining primary air quality standards rather than as an alternative to the promulgation of such standards. ⁷

The EPA Administrator himself initially interpreted § 108(a)(1) as requiring inclusion on the initial list to be issued of those pollutants for which air quality criteria had not been issued but which he had already found in his judgment to have an adverse effect on public health or welfare and to come from sources specified in § 108(a)(1)(B). 36 Fed.Reg. 1515 (1971).

We agree with Judge Stewart that it is to the initial list alone that the phrase "but for which he plans to issue air quality criteria" is directed, and that the Administrator must list those pollutants which he has determined meet the two requisites set forth in section 108.

II Legislative History

When a specific provision of a total statutory scheme may be construed to be in conflict with the congressional purpose expressed in an act, it becomes necessary to examine the act's legislative history to determine whether the specific provision is reconcilable with the intent of Congress. ⁸ Because state planning and implementation under the Air Quality Act of 1967 had made little progress by 1970, Congress reacted by "taking a stick to the States in the form of the Clean Air Amendments of 1970 . . . ." Train v. Natural Resources Defense Council, 421 U.S. 60, 64, 95 S.Ct. 1470, 1474, 43 L.Ed.2d 731 (1975). It enacted § 108(a)(1) which provides that the Administrator of the Environmental Protection Agency "shall" publish a list which includes each air pollutant which is harmful to health and originates from specified sources. Once a pollutant is listed under § 108(a)(1), §§ 109 and 110 are to be automatically invoked, and promulgation of national air quality standards and implementation thereof by the states within a limited, fixed time schedule becomes mandatory.

The EPA contention that the language of § 108(a)(1)(C) "for which (the Administrator) plans to issue air quality criteria" is a separate and third criterion to be met before § 108 requires listing lead and issuing air quality standards, thereby leaving the decision to list lead within the discretion of the Administrator, finds no support in the legislative history of the 1970 Amendments to the Act. The summary of the provisions of the conference agreement furnished the Senate by Senator Muskie contain the following language The agreement requires issuance of remaining air quality criteria for major pollutants within 13 months of date of enactment.

and

Within the 13-month deadline, the Congress expects criteria to be issued for nitrogen oxides, fluorides, lead, polynuclear organic matter, and odors, though others may be necessary. ⁹

The section-by-section analysis of the National Air Standards Act of 1970 in the Senate Report on S. 4358, 91st Cong., 2d Sess., contains this language describing § 108 (formerly designated § 109):

This new section directs the Secretary to publish (initially 30 days after enactment) a list of air pollution agents or combination thereof for which air quality criteria will be issued. He can add to the list periodically. The agents on the initial list must...