Natural Resources Defense Council, Inc. v. U.S. E.P.A.
| Decision Date | 17 January 1984 |
| Docket Number | 82-1061,81-2007,Nos. 81-2001,82-1802 and 82-1950,s. 81-2001 |
| Parties | , 1985 A.M.C. 302, 233 U.S.App.D.C. 234, 14 Envtl. L. Rep. 20,191 NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent, GATX Terminals Corporation, Alabama Power Company, et al., Intervenors. STATE OF CALIFORNIA, acting By and Through the CALIFORNIA AIR RESOURCES BOARD, Petitioner, v. Anne M. GORSUCH, Administrator of the United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Intervenor. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. Anne M. GORSUCH, Administrator, United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Chevron, U.S.A., Inc., Intervenors. STATE OF CALIFORNIA, acting By and Through the CALIFORNIA AIR RESOURCES BOARD, Petitioner, v. Anne M. GORSUCH, Administrator of the United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Intervenor. NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. Anne M. GORSUCH, Administrator, United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Chevron, U.S.A., Inc., Intervenors. STATE OF CALIFORNIA, acting By and Through the CALIFORNIA AIR RESOURCES BOARD, Petitioner, v. Anne M. GORSUCH, Administrator of the United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Chevron, U.S.A., Inc., Intervenors. ILLINOIS ENVIRONMENTAL PROTECTION AGENCY, Petitioner, v. Anne M. GORSUCH, Administrator, United States Environmental Protection Agency, Respondent, GATX Terminals Corporation, Chevron, U.S.A., Inc., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Graeme W. Bush, Washington, D.C., with whom David D. Doniger, Washington, D.C., was on brief, for petitioner, Natural Resources Defense Council.
Susan L. Durbin, Deputy Atty. Gen., State of Cal., Los Angeles, Cal., for petitioner, State of Cal. Daniel P. Selmi, Deputy Atty. Gen., State of Cal., Los Angeles, Cal., also entered an appearance for petitioner, in 81-2007.
William J. Barzano, Jr., Asst. Atty. Gen., Environmental Control Div., Chicago, Ill., was on brief, for petitioner, Illinois E.P.A.
William F. Pedersen, Jr., E.P.A., Washington, D.C., of the Bar of the District of Columbia, pro hac vice, by special leave of the Court, with whom Robert M. Perry, Associate Adm'r and Gen. Counsel, E.P.A. and Jesse Carrillo, Atty., Dept. of Justice, Washington, D.C., were on brief, for respondent. Patrick J. Cafferty, Jr., and Donald W. Stever, Jr., Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondent, in 81-2001, et al.
Ky P. Ewing, Jr., Washington, D.C., with whom Norman D. Radford, Jr., Jeffrey Civins, Houston, Tex., and Christopher T. Corson, Washington, D.C., were on brief, for intervenor, GATX Terminals Corp.
Walter R. Allan, Alston R. Kemp, Jr., Michael R. Barr, Mauricio A. Flores, and Michael J. Halloran, San Francisco, Cal., entered appearances for intervenor, Chevron U.S.A. Inc.
Henry V. Nickel, Andrea S. Bear, and Peter S. Everett, Washington, D.C., entered appearances for intervenor, Alabama Power Co., et al. in 81-2001.
Before MIKVA and SCALIA, Circuit Judges, and BAZELON, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MIKVA.
The process of loading and unloading vessels docked at marine terminals produces significant quantities of air pollution in harbor areas. Similarly, pollutants emitted as a ship approaches and leaves a marine terminal contribute substantially to the poor air quality of many harbors. Recognizing these facts, the Environmental Protection Agency (EPA) initially promulgated rules under which both "dockside" and "to-and-fro" vessel emissions were to be taken into account in regulating the construction and operation of marine terminals. See 45 Fed.Reg. 52,676, 52,736, 52,746 (1980) (vessel emission requirements). In 1981, however, EPA began to chart a new course, twice "staying" the vessel emission requirements and then, on July 25, 1982, revoking them. See 46 Fed.Reg. 36,695 (1981) (first stay); id. at 61,612 (second stay); 47 Fed.Reg. 27,544 (1982) (revocation). This about face did not result from EPA's reconsideration of whether ascribing vessel emissions to marine terminals was a wise means of implementing the agency's mandate under the Clean Air Act, 42 U.S.C. Secs. 7401-7642 (Supp. V 1981) (the Act); reversal followed instead from EPA's new conclusion that the agency had never had the authority in the first place to impose responsibility on marine terminals for emissions traceable to marine vessels. The central question in this case is whether, in revoking the vessel emission requirements, EPA properly construed its mandate under the Clean Air Act.
We hold that EPA was correct to interpret the key statutory term "mobile sources" to include marine vessels but that the agency acted far too precipitously in proceeding from that interpretation to the further conclusion that it "therefore" had no authority to attribute to marine terminal owners any emissions arising from stationary dockside activities involving both vessels and terminals. Absent an attempt by the agency to identify the various emissions and the way in which they are physically discharged into the atmosphere, we have no way of determining whether the statute authorizes some of those emissions to be attributed to the terminal and, if so, which
ones. Accordingly, we reverse the agency's categorical exclusion of "the activities of any vessel" from the relevant definitions of a "stationary source" of pollution and remand so that the agency can undertake the analysis required by the statute. Because, however, it is entirely implausible that a vessel's "to-and-fro" emissions could be attributed to a marine terminal owner under any approach that the statute would tolerate, we affirm that portion of EPA's 1982 repeal which excluded "to-and-fro" vessel emissions from the definition of "secondary emissions."
In the Clean Air Act of 1970 Congress established a comprehensive state and federal scheme to control air pollution in the United States. See Pub.L. No. 91-604, 84 Stat. 1676 (1970). The central elements in this comprehensive scheme were the Act's new source review provisions, which required all major new "stationary" sources of pollution as well as all existing "stationary" sources that were being significantly modified to obtain a permit before construction. At the same time, a series of stringent requirements were established for the issuance of such permits. See 42 U.S.C. Secs. 7475, 7502-7503 (Supp. V 1981). Seven years later, Congress returned to the Act, and, in an effort to adjust the balance between federal and state regulation in certain areas, carved out an exception from the federal controls on "stationary" sources for facilities such as parking lots that traditionally had been exclusively within the regulatory domain of the states. See Pub.L. No. 95-95, 91 Stat. 685, 695-96 (1977). The 1977 amendments state that, in determining whether a new or modified source qualifies as "major" or "significant" and hence is subject to the new source review provisions, EPA cannot include, nor require states to regulate, emissions from "mobile" sources located at the stationary source. The effect of this bar is to prohibit EPA from promulgating, or from requiring as a condition for approval of a state implementation plan (SIP), any program for the facility-by-facility review of facilities, such as parking lots, which are not themselves significant sources of pollution but which attract substantial numbers of "mobile" pollution-emitting sources.
Such facilities are known as "indirect sources of pollution." From the outset, the Act's new source review provisions have applied to "stationary sources." Originally, the term stationary source "generally [had] been interpreted to mean facilities that affect or may affect air quality primarily because of their own air pollutant emissions." 38 Fed.Reg. 9,599 (1973). However, by 1973 EPA believed that, in addition to the transportation control measures then being considered--such as motor vehicle inspection and retrofitting used automobiles with emission control devices--preconstruction review of indirect sources would be a necessary further step "to insure the maintenance of the national ambient air quality standards, particularly for mobile source-related air pollutants, beyond 1975." Id.
In deciding to add such indirect source review to the list of transportation control measures states had to consider in their attempts to meet ambient air quality standard deadlines, EPA was no doubt prompted to some extent by our decision in NRDC v. EPA, 475 F.2d 968 (D.C.Cir.1973) (NRDC I ). In that case, we found that EPA had no authority to extend the statutory deadlines for either state submission of the transportation control plan portions of their SIPs or for achievement of primary air quality standards for certain pollutants. Id. at 970. Rather, EPA was required to disapprove all "plans which do not provide for measures necessary to insure the maintenance of the primary standard after May 31, 1975...." Id. at 972. See J. KRIER & R. STEWART, ENVIRONMENTAL LAW AND POLICY 441-59 (1978) ().
Whatever the impetus, EPA went on to disapprove state implementation plans that did not provide for, inter alia, indirect source review, 40 C.F.R. Sec. 52.22(a) (1974), and then established a mandatory federal Congress, however, was not so accepting of EPA's actions. Congress reacted negatively and immediately to EPA's attempt to regulate indirect sources of pollution, attaching a...
To continue reading
Request your trial
-
National Ass'n of Broadcasters v. F.C.C., s. 82-1926
...reference to general categories rather than to specific classes of activities within those categories." Natural Resources Defense Council, Inc. v. EPA, 725 F.2d 761, 770 (D.C.Cir.1984). As we said in that case, under such circumstances courts and agencies must "seek out the broader purposes......
-
National Ass'n of Broadcasters v. Librarian of Congress
...NAB II, 772 F.2d at 940, we think it useful to decide the standard of review question now. But cf. Natural Resources Defense Council, Inc. v. EPA, 725 F.2d 761, 767-68 (D.C.Cir.1984) (declining to select standard of review because regardless of standard applied result would be same).9 The 1......
-
Resisting Envtl. Destruction On Indigenous Lands v. U.S. Envtl. Prot. Agency
...enacted § 7627 after the D.C. Circuit's decision in NRDC, Inc. v. EPA resolve the provision's ambiguity, as REDOIL posits. 725 F.2d 761 (D.C.Cir.1984). In that case, the D.C. Circuit upheld the EPA's revocation of regulations treating emissions produced by ships moving to or from a marine t......
-
Resisting Envtl. Destruction on Indigenous Lands, Redoil v. U.S. Envtl. Prot. Agency
...enacted § 7627 after the D.C. Circuit's decision in NRDC, Inc. v. EPA resolve the provision's ambiguity, as REDOIL posits. 725 F.2d 761 (D.C.Cir.1984). In that case, the D.C. Circuit upheld the EPA's revocation of regulations treating emissions produced by ships moving to or from a marine t......