Manchester Environmental Coalition v. E.P.A., 1147
| Decision Date | 06 December 1979 |
| Docket Number | No. 1147,D,1147 |
| Citation | 612 F.2d 56 |
| Parties | , 10 Envtl. L. Rep. 20,057 MANCHESTER ENVIRONMENTAL COALITION and Michael Dworkin, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Douglas Costle, Administrator, Respondents. ocket 79-4062. |
| Court | U.S. Court of Appeals — Second Circuit |
Anthony F. Pagano, Manchester, Conn. (David L. Schulman, and Beck & Pagano, Manchester, Conn., on the brief), for petitioners Manchester Environmental Coalition and Dworkin.
James N. Cahan, Atty., Environmental Protection Agency, Washington, D. C. (Joan Z. Bernstein, Gen. Counsel, and Jeffrey O. Cerar, Deputy Associate Gen. Counsel, EPA, Washington, D. C., on the brief), for respondents Environmental Protection Agency and Douglas Costle, Administrator, EPA.
Richard S. Ewing, Washington, D. C. (James Sharp, and Arnold & Porter, Washington, D. C., on the brief), for intervenor-appellee National Realty Committee, Inc.
Nancy L. Buc, Washington, D. C. (Bruce H. Turnbull, Washington, D. C., Michael D. Hess, Mel P. Barkan, and Weil, Gotshal & Manges, New York City, and Washington, D. C., on the brief), for intervenor-appellee National Retail Merchants Association.
Joel S. Moskowitz, Deputy Atty. Gen., State of California, Sacramento, Cal. (George Deukmejian, Atty. Gen., and R. H. Connett, Asst. Atty. Gen., Sacramento, Cal., on the brief), for amicus curiae State of California.
Gus Bauman, Edward C. Maeder, Washington, D. C.; Ellen C. Newcomer, Chicago, Ill.; and Winston & Strawn, Washington, D. C., submitted a brief for amici curiae National Association of Home Builders, Building Owners and Managers Association International, Institutional and Municipal Parking Congress, International Council of Shopping Centers and National Parking Association.
Before MANSFIELD, MULLIGAN and TIMBERS, Circuit Judges.
On this petition to review the final order of the Environmental Protection Agency (EPA) filed January 22, 1979, which approved the application of the State of Connecticut to revise its state implementation plan, we find the chief issue is whether the EPA erred in construing 42 U.S.C. § 7410(a)(5)(A)(iii) (Supp. I 1977), to require the Administrator to approve a state's request to revoke its indirect source review program without considering whether such revocation would render the state's plan inadequate to attain and maintain the national ambient air quality standards. We hold that the EPA's construction of this provision is in conflict with the statutory language. Accordingly, we vacate and remand.
In 1970 Congress amended the Clean Air Act, 42 U.S.C. §§ 1857-1858 (1970), to establish a comprehensive state and federal scheme to control air pollution in the United States. 1 Under this statutory scheme, there was delegated to the states the responsibility of developing state implementation plans (SIPs) designed to achieve and maintain the national ambient air quality standards (NAAQS) established by the federal government. 42 U.S.C. § 1857c-5 (1970).
Among the various control programs which the EPA first suggested was an indirect source review program (ISR) to be adopted by the states. Basically an ISR provides for the pre-construction review of facilities such as shopping centers, sports complexes, highways and airports which are likely to induce or attract significant motor traffic, thereby increasing the amount of mobile source generated air pollutants.
In 1973 the Administrator determined that the adoption of an ISR was mandatory if the SIPs were to comply with the standard set forth by the District of Columbia Circuit Court of Appeals in National Resource Defense Council, Inc. v. EPA, 475 F.2d 968 (D.C.Cir.1973). 2 There the court required the Administrator to review all SIPs and to disapprove those plans which failed to provide measures for maintaining the primary standard. 3 Those states whose plans were disapproved were given until April 15, 1973 to submit new plans, and until May 31, 1975 to attain the primary standard. The court required the Administrator to promulgate implementation plans for those states who failed to do so. Id. at 971. Since only Florida and Guam had adopted ISRs by the date established by the court, the Administrator was forced to promulgate ISRs for the remaining states in order to comply.
The ISRs promulgated by the EPA, however, drew heavy criticism because they represented a significant federal intrusion into the traditionally local domain of land use control. H.R.Rep.No.294, 95th Cong., 1st Sess. 221 (1977), Reprinted in (1977) U.S.Code Cong. & Ad.News 1077, 1300; 120 Cong.Rec. 34697, 39267 (1974); 119 Cong.Rec. 38842-38844 (1973). Congress responded to this criticism by restricting the EPA's funding of the administration of programs designed to tax or limit parking facilities. Pub.L. 93-245, 87 Stat. 1071 (1974). The EPA thus was forced to suspend all federally promulgated ISRs insofar as they pertained to parking facilities, and eventually, in 1976, to suspend the indirect source regulations indefinitely. 40 C.F.R. § 52.22(b)(16) (1978).
In the meantime, however, certain states, including Connecticut, had promulgated their own ISRs. This created an anomalous situation: federally promulgated ISRs were suspended, while those states which had complied voluntarily with the EPA's requirement to establish an ISR could abolish their ISRs only if they could show that their SIPs were still capable of achieving and maintaining the NAAQS. 42 U.S.C. § 1857c-5(a)(3) (1976). To rectify this situation, Congress included in the 1977 amendments to the Clean Air Act a special provision severely limiting the EPA's authority over ISRs, and permitting the states to revise their SIPs "provided that such plan meets the requirements of this section." 42 U.S.C. § 7410(a)(5)(A)(iii) (Supp. I 1977).
Following the enactment of the 1977 amendments and pursuant to the provision referred to above, Connecticut submitted to the Administrator a series of revisions of its ISR, including a proposal to eliminate preconstruction review of all indirect sources except highways and airports. After receiving comments on these proposed revisions, the Administrator approved them on January 26, 1979. The Administrator's approval was premised on his view that § 7410(a)(5) (A)(iii) permitted a state to revise its ISR so long as the state complied with the section's Procedural requirements of proper notice and hearing. According to the Administrator's construction of the section, it did not require the state to show that its SIP was capable of achieving and maintaining the NAAQS, despite the revocation of the ISR.
On March 15, 1979, the Manchester Environmental Coalition and Michael Dworkin filed in this Court a petition to review the Administrator's approval of Connecticut's SIP revision and thereafter presented oral argument. The State of California filed an amicus curiae brief and presented oral argument, opposing the EPA's interpretation, and indicating its interest in a similar ISR deletion request by the State of Nevada. The National Retail Merchants Association and the National Realty Committee, Inc., intervenors before the agency, filed briefs and presented oral argument. Other interested amici curiae filed a brief. 4
Turning to the chief issue in the case the interpretation of 42 U.S.C. § 7410(a)(5)(A)(iii) (Supp. I 1977) we note at the outset that in the light of Sierra Club v. Morton, 405 U.S. 727 (1972), petitioners Manchester Environmental Coalition and Dworkin (the Coalition) have standing to challenge the EPA's final order in this case. What is less clear, however, is how to resolve the asserted ambiguities posed by the language of § 7410(a)(5)(A)(iii) and, in particular, the proviso to that section:
"Any State may revise an applicable implementation plan approved under this subsection to suspend or revoke any such program included in such plan, Provided that such plan meets the requirements of this section." (emphasis added).
The plain meaning of the statutory language would seem to be that a state may revoke its ISR provided that its overall SIP complies with all of the requirements of § 7410 Both procedural and substantive. This interpretation of the phrase "requirements of this section" would conform to the meaning of the same phrase as it is used elsewhere in § 7410. Indeed, in other sections of the statute, Congress had no difficulty in specifying when it wanted only Certain requirements to apply. E. g., 42 U.S.C. § 7474(b)(1)(C)(2) (Supp. I 1977) ().
The EPA, however, has construed the proviso to refer only to the procedural requirements of § 7410, although it concedes that its construction is "difficult to reconcile" with the words of the statute. 43 Fed.Reg. 10709 (1978). Before us the EPA has attempted to support its construction by urging various arguments of policy, legislative intent and possible intra-statutory conflict. We find none to be persuasive. While we are mindful of the deference to be accorded an administrative agency in the construction of a statute it is charged with enforcing, E. g., Udall v. Tallman, 380 U.S. 1, 16 (1965), we cannot accept the EPA's interpretation of the proviso here in question.
The EPA contends that if the proviso is read to require substantive compliance with § 7410, it would be duplicative of the general revision section, § 7410(a) (3)(A). While there may be some overlap between the ISR deletion section and the general revision section, they are not redundant. As the State of California points out, the EPA had the power to refuse to permit a state to delete an ISR even before the addition of the ISR clause in 1977. It strikes us as more plausible to view § 7410(a)(5)(A)(iii) as an effort by Congress to be thorough in enumerating the situations in which the EPA would confront ISRs.
We also reject the EPA's contention that its...
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