Connecticut Fund for Environment, Inc. v. E.P.A., 52
| Decision Date | 01 February 1982 |
| Docket Number | D,No. 52,52 |
| Citation | 672 F.2d 998 |
| Parties | , 12 Envtl. L. Rep. 20,306 The CONNECTICUT FUND FOR THE ENVIRONMENT, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, National Retail Merchants Association, et al., Intervenors. ocket 81-4025. |
| Court | U.S. Court of Appeals — Second Circuit |
Daniel Millstone, New Haven, Conn., for petitioners The Connecticut Fund for the Environment, Inc. and John Walton.
Anthony F. Pagano, Manchester, Conn., for petitioners Manchester Environmental Coalition and Michael Dworkin.
Diane L. Donley, Dept. of Justice, Washington, D. C. (Carol E. Dinkins, Asst. Atty. Gen., Dept. of Justice, Jose R. Allen, Barbara Brandon, Dept. of Justice, Lydia Wegman, Christina Kaneen, USEPA, Michael Corash, General Counsel, USEPA, Washington, D. C., Jeffrey Fowley, USEPA, Boston, Mass., on the brief), for respondents.
Nancy L. Buc, Washington, D. C. (Bruce H. Turnbull, Weil Gotshal & Manges, James Sharp and Richard S. Ewing, Washington, D. C., on the brief), for intervenors Nat. Retail Merchants Ass'n, Nat. Realty Committee, and Intern. Council of Shopping Centers.
Kenneth N. Tedford, Asst. Atty. Gen., Hartford, Conn. (Carl R. Ajello, Atty. Gen., Robert A. Whitehead, Jr., Asst. Atty. Gen., Hartford, Conn., on the brief), for intervenor State of Conn.
Before NEWMAN and KEARSE, Circuit Judges, and DALY, * District Judge.
This appeal presents questions of statutory construction regarding Congress' most recent effort to attain nationwide air quality standards-the 1977 Amendments to the Clean Air Act. Petitioners seek review of a final order of the Environmental Protection Agency (EPA) (1) conditionally approving the State of Connecticut's anti-pollution plan as in compliance with the 1977 Amendments' special provisions for states with excessive pollution levels, and (2) approving the partial withdrawal of Connecticut's program for preconstruction review of indirect sources of pollution. We uphold in large part EPA's conditional approval policy as a reasonable method of administering a complicated statute that requires a sensitive coordination of federal and state responsibilities. We find, however, that EPA's use of the conditional approval mechanism in this case departs in one respect from the elaborate statutory scheme specified by Congress in the 1977 Amendments. This concerns lifting the moratorium on new construction of major sources of pollution. Because we cannot approve this departure from the scheme Congress chose for bringing to an end the long-stalled journey toward the attainment of clean air, we grant review of the conditional approval in part; we deny review of EPA's approval of the partial withdrawal of Connecticut's indirect source review program.
Prior to 1970, the fight against pollution was waged primarily by state and local governments with only a minimal federal supervisory role. Dissatisfaction mounted with the slow pace of these early efforts at freeing the nation's air from excessive levels of pollutants. Congress responded by enacting the Clean Air Act Amendments of 1970, Pub.L.No.91-604, 84 Stat. 1676 (codified at 42 U.S.C. §§ 1857-1858a (1970)). 1 The EPA was charged with administering a combined federal-state program to control air pollution. The heart of the program was EPA's promulgation of national primary ambient air quality standards (NAAQSs) as pollution level limits necessary "to protect the public health." 42 U.S.C. § 7409(b)(1) (Supp. III 1979). 2 Each state was to submit a state implementation plan (SIP) designed to attain these standards within three years of the SIP's approval. The 1970 Amendments provided some guidance regarding the expected content of the SIPs and EPA specified further detail. If a state failed to submit a plan that EPA could approve as meeting the statutory requirements, EPA was required to promulgate an implementation plan designed to ensure the state's attainment of the NAAQSs by the deadline. § 7410(c)(1). With provisions for extensions of the three-year deadlines for up to two years carefully circumscribed, 42 U.S.C. § 1857c-5(e) (1970), substantial attainment of the NAAQSs was envisioned by mid-1975, but in no event later than mid-1977. See generally Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 63-67, 95 S.Ct. 1470, 1474-76, 43 L.Ed.2d 731 (1975); Union Electric Co. v. EPA, 427 U.S. 246, 249-51, 96 S.Ct. 2518, 2522-23, 49 L.Ed.2d 474 (1976).
When it became apparent that many states would fail to meet the NAAQSs by even mid-1966 because of inadequate state regulation and industry violations, Congress rescued these states from a possible shutdown of existing sources of pollution and a ban on new sources in excessively polluted areas by amending the Act. 3 See H.R.Rep.No.95-294, 95th Cong., 1st Sess. 207-11 (1977), reprinted in (1977) U.S.Code Cong. & Ad.News 1077, 1286-90. The Clean Air Act Amendments of 1977, Pub.L.No.95-95, 91 Stat. 685, required the states to identify areas not meeting the national standards; these areas were designated "nonattainment" for each NAAQS that was violated. §§ 7407(d), 7501(2); 43 Fed.Reg. 8962 (Mar. 3, 1978). Congress offered nonattainment areas an opportunity for an extension of the deadline for complying with the national standards. But cognizant of the already lengthy history of delays and disappointments that had characterized previous efforts to combat pollution, Congress sought to build in some insurance that the NAAQSs would be met by the new deadlines. Taking into account past experience, Congress specified requirements that it believed would most likely result in eventual attainment. The price for the extension was the submittal of SIP revisions that would meet the stringent "Part D" requirements, added as Part D of Title I of the Clean Air Act by the 1977 Amendments. §§ 7501-7508.
Under Part D, the revised SIP must provide for the attainment of an NAAQS "as expeditiously as practicable" but not later than December 31, 1982. § 7502(a). The plan must provide for the adoption of all reasonably available control measures (RACMs) as expeditiously as practicable, reasonable further progress toward attainment during the interim period, the adoption of reasonably available control technology (RACT), a comprehensive inventory of the sources emitting the troublesome pollutant, and a permit system for construction and operation of new or modified major pollution sources. § 7502(b). Under a variation of EPA's "emission offset ruling," 4 permits for new construction or modification of sources of the pollutant in the nonattainment area could be granted only if the increase in emissions is compensated for by a decrease in emissions from existing sources in the area and if the new source complies with the lowest achievable emission rate. § 7503.
In the case of areas that have not attained the NAAQSs for carbon monoxide or ozone, 5 an additional extension until December 31, 1987 may be granted for either or both of those pollutants if earlier attainment is not possible. § 7502(a)(2). Plans requesting this additional extension must provide for the implementation of a vehicle emission control inspection and maintenance program, establish an alternative site analysis program for construction or modification of major sources of the pollutant, and identify other measures needed to reach the NAAQSs by 1987. § 7502(b)(11). Another SIP revision to be submitted by July 1, 1982 must contain, in enforceable form, all measures needed for attainment. § 7502(c).
Congress sought to maximize the chances for success by subjecting states that chose not to submit Part D SIP revisions (or did not comply with the revisions) to a moratorium on major new source construction or modification that would contribute to concentrations of pollutants for which an area has been designated "nonattainment." The moratorium continues until the requirements of Part D are met. § 7410(a)(2)(I). Section 7502(a)(1) makes clear that the Part D SIP revisions "required by section 7410(a)(2)(I) (are) a precondition for the construction or modification of any major stationary source." See also §§ 7413(a)(5); 7503(4). "The statutory language and legislative history indicate that the (moratorium) is automatic and mandatory under the Act and existing state implementation plans, and is not a new prohibition that can be imposed or withheld at EPA's discretion." 44 Fed.Reg. 38471, 38472 (July 2, 1979). Accordingly, EPA promulgated a rule codifying this statutory restriction and adding it to all SIPs. 40 C.F.R. § 52.24(a), (b) (1981), 44 Fed.Reg. 38471 (July 2, 1979). 6
To ensure that the new deadlines were not jeopardized at the start by the usual delays, Congress specified a precise schedule for the implementation of the 1977 Amendments. The states were to identify nonattainment areas by December 5, 1977. EPA was then to promulgate a list of nonattainment areas within sixty days (February 3, 1978). § 7407(d). States were required to submit Part D revisions by January 1, 1979. § 7502 note. The revisions were to take effect not later than July 1, 1979. As of that date, any major new construction would be governed either by a § 7503 permit system of an approved Part D submission or by the construction moratorium of § 7410(a)(2)(I). 7
This precise timetable of Part D is superimposed upon the schedule for EPA responses to state submittals under the preexisting Clean Air Act. Section 7410(a)(2) provides that the Administrator of EPA "shall, within four months after the date required for a submission of a plan ... approve or disapprove (the) plan, or any portion thereof." Section 7410(c)(1) further requires EPA to promulgate a SIP or portion thereof in lieu of an acceptable submittal by a state "within six months after the date required for submission of (the state's) plan." The reference to administrative...
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