626 F.2d 1038 (D.C. Cir. 1980), 78-1392, State of N.J., Dept. of Environmental Protection v. United States E.P.A.

Docket Nº:78-1392.
Citation:626 F.2d 1038
Party Name:Envtl. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Douglas M. Costle, Administrator, Respondents, State of Missouri, Environmental Improvement Division of the New Mexico Health and Environment Department, Department of Pollution Control and Ecology of the State of Ark
Case Date:June 30, 1980
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 1038

626 F.2d 1038 (D.C. Cir. 1980)

Envtl.

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Douglas M.

Costle, Administrator, Respondents,

State of Missouri, Environmental Improvement Division of the

New Mexico Health and Environment Department, Department of

Pollution Control and Ecology of the State of Arkansas,

Department of Environmental Quality Engineering of the

Commonwealth of Massachusetts, District of Columbia, State

of Maine, W. Edward Wood, Director of Department of

Environmental Management of the State of Rhode Island and

Providence Plantations, Peter A. A. Berle, Commissioner of

Environmental Conservation of the State of New York, State

of Connecticut Department of Environmental Protection, The

Agency of Environmental Conservation of the State of

Vermont, State of Georgia, Department of Natural Resources,

Division of Environmental Protection, City of New York, Intervenors.

No. 78-1392.

United States Court of Appeals, District of Columbia Circuit

June 30, 1980

Argued April 14, 1980.

Page 1039

Richard M. Hluchan, Deputy Atty. Gen., State of New Jersey, Trenton, N. J., for petitioner.

Ronald C. Hausmann, Atty., Dept. of Justice, Washington, D. C., with whom, James W. Moorman, Asst. Atty. Gen., Angus MacBeth, Deputy Asst. Atty. Gen., Donald Stever, Atty., Dept. of Justice, Washington, D. C., were on brief, for respondent.

David L. Williams, Asst. Atty. Gen., State of Arkansas, Little Rock, Ark., was on brief, for intervenor, Department of Pollution Control and Ecology, State of Arkansas.

Dan Summers, Asst. Atty. Gen., State of Missouri, Jefferson City, Mo., was on brief, for intervenor, State of Missouri.

Arthur K. Bolton, Atty. Gen., and Sarah Evans Lockwood, Staff Asst. Atty. Gen., State of Georgia, Atlanta, Ga., were on brief, for intervenor, State of Georgia, Department of Natural Resources, Division of Environmental Protection.

Francis X. Bellotti, Atty. Gen., and Francis S. Wright, Asst. Atty. Gen., State of Massachusetts, Boston, Mass., were on brief, for intervenor, The Department of Environmental Quality Engineering of the Commonwealth of Massachusetts.

James A. Sevinsky, Albany, N. Y., was on brief, for intervenor, Peter A. A. Berle, Commissioner of Environmental Conservation of the State of New York.

Richard F. Webb, Asst. Atty. Gen., State of Connecticut, Hartford, Conn., was on brief, for intervenor, State of Connecticut Department of Environmental Protection.

Gregory W. Sample, Asst. Atty. Gen., State of Maine, Augusta, Me., was on brief, for intervenor, State of Maine. Donald G. Alexander, Augusta, Me., also entered an appearance for intervenor, State of Maine.

R. Daniel Prentiss, Providence, R. I., was on brief, for intervenor, State of Rhode Island Department of Environmental Management.

Benson D. Scotch, Asst. Atty. Gen., State of Vermont, Montpelier, Vt., was on brief, for intervenor, Agency of Environmental Conservation of the State of Vermont.

James G. Greilsheimer, First Asst. Corp. Counsel, City of New York, New York City, was on brief, for intervenor, City of New York.

Judith W. Rogers, Corp. Counsel, John C. Salyer and Richard G. Wise, Asst. Corp. Counsel, Washington, D. C., entered appearances for intervenor, District of Columbia.

Leonard J. Theberge, Washington, D. C., entered an appearance, for intervenor, Mid Atlantic Legal Foundation.

Before McGOWAN and WILKEY, Circuit Judges, and DAVIES, [*] United States District Judge for the District of North Dakota.

Opinion for the court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

We review here a rule promulgated by the Administrator of the Environmental Protection Agency under section 7407(d) of the Clean Air Act. Because the Administrator felt that a tight statutory schedule gave him "good cause" to do so, he promulgated that rule without the prior notice and

Page 1040

without the prior solicitation of public comments which section 553 of the Administrative Procedure Act ordinarily requires. Because we find that the Clean Air Act's schedule for promulgation of the rule did not place such time constraints on the Administrator that notice and comment rule-making would have been impracticable, we hold he erred in invoking the good cause exception. We therefore reverse the Administrator and remand the record for further proceedings.

I

In 1955, Congress passed the original Clean Air Act; in 1970 and 1977 Congress passed major amendments to that Act. 1 The Clean Air Act, 42 U.S.C. 7401 et seq.. (Supp. I 1977), now stands as an emphatic expression of Congress's intent that the air Americans breathe be clean.

On November 25, 1971, the Administrator of the Environmental Protection Agency (EPA), in obedience to the command of the Clean Air Act, promulgated "National Ambient Air Quality Standards" for several pollutants, including a pollutant variously referred to as photochemical oxidants or ozone. 36 Fed.Reg. 22384 (Nov. 25, 1971), 40 C.F.R. Part 50. In 1970, Congress had expected that these standards would be met by the middle of the decade. However, by 1975 Congress apprehended that that expectation would go unrealized in many areas. Congress viewed this failure with the utmost seriousness, for it understood that the "non-attainment of air quality standards in a wide and densely populated region could result in a phenomenal health impact, measured in terms of millions of days of aggravated disease, asthma attacks and lower respiratory disease episodes." H.Rep. No. 95-294, 95th Cong., 1st Sess. 209 (1977), U.S.Code Cong. & Admin.News 1977, pp. 1077, 1288.

Fearing for the health of "tens of millions," id., Congress imposed a new, and tight, schedule for achieving the air quality standards the Administrator had set in 1971. The part of the new schedule relevant to our task was 42 U.S.C. § 7407(d), which required states to submit to the Administrator a list of (1) those air-quality-control regions (to be designated "attainment") which, on August 7, 1977, met the national air quality standards, (2) those regions (to be designated "nonattainment") which did not meet the standards, and (3) those regions (to be designated "unclassifiable") for which there were insufficient data to permit classification. This list was to be submitted "within one hundred and twenty days after August 7, 1977," that is, on December 5, 1977. Within sixty days thereafter by February 3, 1978 the Administrator was directed to "promulgate each such list with such modifications as he deems necessary."

Using the Administrator's modified list, each state was to formulate by January 1, 1979, plans for the "implementation, maintenance, and enforcement" of air quality standards. A "state implementation plan" for oxidants was to be written which would assure that air quality standards would be reached by December 31, 1982. 42 U.S.C. § 7502(a)(1) (Supp. I 1977). Of necessity, therefore, plans would impose much more stringent measures for areas designated "nonattainment" than for areas not so designated. By July 1, 1979, the Administrator was to have approved or disapproved state plans. If a state failed to secure approval for a plan for dealing with regions designated "nonattainment," the statute forbad the construction or modification of any major stationary source of pollution in those regions when "the emissions from such facility will cause or contribute to concentrations of any pollutant for which (an air quality standard) is exceeded in such area . . . ." 42 U.S.C. § 7410(a)(2)(I) (Supp. I 1977).

Page 1041

Although the statute required the Administrator to promulgate a list of nonattainment areas on February 3, 1978, he in fact promulgated it on March 3, 1978. 43 Fed.Reg. 8962. And although section 553 of the Administrative Procedure Act (APA) requires that, when an agency proposes to issue a rule, it must first publish a general notice in the Federal Register, 5 U.S.C. § 553(b), and "give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments," 5 U.S.C. § 553(c), the Administrator provided neither notice nor opportunity for comment. Instead, his "final rule" was effective "immediately." 43 Fed.Reg. 8962 (March 3, 1978). In justification, he invoked the exception to the usual requirement of notice and comment rule-making which section 553(b)(B) creates for those occasions "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). The Administrator explained that the tight schedule Congress had set prevented notice and comment rule-making:

The States are now preparing revisions to their State implementation plans (SIPs) as required by sections 110(a)(2)(I) and 172 of the Act. This enterprise, which must be completed by January 1, 1979, requires that the States have immediate guidance as to the attainment status of the areas designated under section 107(d). Congress has acknowledged this by imposing a tight schedule on the designation process and requiring EPA to promulgate the list within 180 days of the enactment of the amendments. Under these circumstances it would be impracticable and contrary to the public interest to ignore the statutory schedule and postpone publishing these regulations until notice and comment can be effectuated. For this good cause, the Administrator has made these designations immediately effective.

43 Fed.Reg. 8962 (March 3, 1978). However, the Administrator did offer to receive post hoc public comment:

The Agency recognizes . . . the importance of public involvement in the designation process. It is(,) therefore, soliciting...

To continue reading

FREE SIGN UP