NATURAL RESOURCES, ETC. v. ENVIRONMETAL PRO. AGENCY
| Decision Date | 02 May 1973 |
| Docket Number | 72-1224.,No. 72-1219,72-1219 |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL, INC., PROJECT ON CLEAN AIR, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUNCIL, INC., PROJECT ON CLEAN AIR, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Richard E. Ayres and Thomas B. Arnold, Boston, Mass., for petitioners.
Thomas C. Lee, Washington, D. C., Atty., Department of Justice, with whom Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark, and Martin Green, Attys., Department of Justice, were on brief, for respondent in case 72-1219.
John P. Hills, Atty., Department of Justice, with whom Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark, and Martin Green, Attys., Department of Justice, were on brief, for respondent in case 72-1224.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
Petitioners seek review1 of decisions by the Administrator of the Environmental Protection Agency (E.P.A.) approving portions of the Rhode Island and Massachusetts air pollution implementation plans.2
The Clean Air Amendments of 1970 to the Air Quality Act of 1967, 42 U.S.C. § 1857c-3 et seq., require the Administrator — as he has already done — to establish national primary and secondary ambient air quality standards stating how much of each pollutant shall be allowed in the ambient air. Primary standards are maximums allowable to protect the public health; secondary standards are maximums to protect the public welfare from any known or anticipated adverse effects. Each state must then submit to the Administrator a plan for implementation, maintenance and enforcement of the standards. § 1857c-5(a)(1). The plan must be such as to achieve primary standards within three years (subject to a possible two-year extension), and secondary standards within a reasonable time. § 1857c-5(a)(2); see § 1857c-5(e) and (f). The Administrator is to approve or disapprove a plan, or any portion, in light of its ability to meet those timetables and its fulfilling of the other requirements of § 1857c-5(a)(2)(B) through (H). If a state plan or any portion does not meet the statutory requirements, the Administrator is directed to publish his own regulations setting forth an implementation plan, or portion thereof for the state. § 1857c-5(c).
Petitioners raise eight objections to the Administrator's approval of the Rhode Island plan, and four to the Massachusetts plan.3
Petitioners argue that the Administrator erred in approving the classification of the Metropolitan Providence Interstate Air Quality Control Region (MPIAQCR) as Priority III for photochemical oxidants and carbon monoxide.4 The classification was made pursuant to 40 C.F.R. § 51.3(b)(2):
In the absence of measured data to the contrary, classification with respect to carbon monoxide, photochemical oxidants and nitrogen dioxide will be based on the following estimate of the relationship between these pollutants and population: Any region containing an area whose 1970 "urban place" population, as defined in the U.S. Bureau of Census, exceeds 200,000 will be classified Priority I. All other regions will be classified Priority III.
Both parties seem agreed that there was an "absence of measured data to the contrary," and that the "`urban place' population" criterion was used. Although the precise meaning of "`urban place' population" was questioned by petitioners, respondent has informed us that the term was taken from the 1960 census, and that it was intended to mean what "place" population means in the 1970 census. The 1970 "place" population of Providence was 170,000; hence, the Priority III classification. We accept the Administrator's interpretation of his own regulation. Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L. Ed.2d 616 (1965).
Whatever the facts in Rhode Island, the regulation seems to presume what must, in some places, be fiction: that, if a region lacks a city of over 200,000, its air is relatively pure in the absence of measured data to the contrary. 40 C.F. R. § 51.3(b)(2). The air over a region containing a dense population, much industry, but no one city with over 200,000 inhabitants, could, though polluted, be classified Priority III. Recognizing this, the Administrator points to his need to tackle the national problem in a manageable way. Since photochemical oxidants and carbon monoxide are associated with automobiles, and since control may require regulation of the use of automobiles, he says he must concentrate initial control strategies in single, large cities having a centralized government and hence greater capability to regulate traffic.
This may be the only feasible approach. Yet the Clean Air Amendments, on their face, contemplate achieving national standards within the allowable time everywhere, an object which the Administrator's urban place priorities would seem not to achieve. We would be loath to construe the Act as requiring the Administrator to do the impossible; however, without further information we cannot make an informed judgment. We do not accept factual arguments advanced by attorneys in briefs or orally as substitutes for official finding or explanations of the agency. International Harvester Company v. Ruckelshaus, ___ F.2d 478 at p. 632 (D.C.Cir. 1973). Without data, either we must conclusively presume that the Administrator is right — a presumption which would reduce judicial review of the question to a formality — or we must have further data from the agency upon which to make a reasoned judgment.
At present, we not only do not know officially and in detail why the agency has adopted an approach which seems not to ensure national compliance within the allotted time, we do not know why there remains an "absence of measured data" regarding the extent of photochemical oxidants and carbon monoxide pollution in the MPIAQCR.
In a letter dated June 15, 1971, Mario Storlazzi, Regional Air Pollution Control Director, E.P.A., notified Dr. Joseph E. Cannon, Director of the Rhode Island Department of Health, that the MPIAQCR was classified Priority I for carbon monoxide and photochemical oxidants
There is no evidence that the data was ever collected. We should know whether it is available today, one and one-half years later, particularly in light of 42 U.S.C. § 1857c-5(a)(2)(C).5 If the data is still not available, is Rhode Island under a continuing duty to collect it, or will the MPIAQCR retain its Priority III classification forever?
The Clean Air Amendments do not expressly require the E.P.A. to provide an explanation of its decisions approving state implementation plans. Compare 42 U.S.C. § 1857h-5(b)(1) with § 1857c-5(f)(2). Nonetheless, the judicial review provision necessarily confers authority to compel such information from the E.P.A. to the extent needed to determine whether the Administrator's action is in accordance with law.6See Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 419-421, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (U.S. March 26, 1973); Kennecott Copper Corp. v. Environmental Protection Agency, 462 F.2d 846, 848-850 (D.C.Cir. 1972); Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 475 F.2d 968 (D.C.Cir. 1973). See also Environmental Defense Fund Incorporated v. Ruckleshaus, 142 U.S.App.D.C. 74, 439 F.2d 584, 597-598 (D.C.Cir. 1971). International Harvester Company v. Ruckleshaus, 478 F.2d 615 (D.C.Cir. 1973). Appalachian Power Company v. Environmental Protection Agency, 477 F.2d 495, at pp. 506-508 (4th Cir. 1973).
We ask the E.P.A. to provide us with a detailed statement of its reasons for adopting 40 C.F.R. § 51.3(b)(2), what efforts have been and are being made to collect data concerning photochemical oxidants and carbon monoxide levels in the MPIAQCR, and elsewhere in Rhode Island, whether or not adequate data is now available, and any other information which the E.P.A. considers might be helpful to this court in reviewing the question.7
Petitioners claim that Rhode Island's control strategy for nitrogen dioxide will reduce the ambient nitrogen dioxide concentration by only 9.2%, whereas in 1969 the primary standard was exceeded by 26.5%. We need not discuss this argument in detail since we are now informed that the Administrator has announced the impending reclassification of all regions for nitrogen dioxide, based upon findings that the air quality data originally used in assigning classifications to regions significantly overestimated the actual ambient concentrations of nitrogen dioxide.8
...
To continue reading
Request your trial
-
South Terminal Corp. v. E.P.A., FITZ-INN
...remand could be for a unilatreal 'explanation' or 'clarification' of the Agency's views. See, e.g., Natural Resources Defense Counsel, Inc. v. EPA, 478 F.2d 875, 881-882 (1st Cir. 1973); Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 462 F.2d 846, 848-851 (1972). See also Overton Park......
-
United States v. Adamo Wrecking Co.
...of Pa. v. EPA, 500 F.2d 246, 250 (3rd Cir. 1974); Friends of Earth v. USEPA, 499 F.2d 1118, 1123 (2nd Cir. 1974); Nat. Res. Def. C. v. EPA, 478 F.2d 875, 881 (1st Cir. 1973); Buckeye Power, supra, at Thus, the only definite conclusion which this Court can draw from an analysis of the case l......
-
Natural Resources Defense Council, Inc. v. U.S. E.P.A.
...from a state plan that would preclude the attainment or maintenance of national ambient air standards. Natural Resources Defense Council, Inc. v. EPA, 478 F.2d 875, 886 (1st Cir. 1973). The EPA viewed the Act as enabling a state to grant 'variances,' subject to approval by the EPA, for reas......
-
Bcca Appeal Group v. U.S. E.P.A., 02-60017.
...held that "Congress has left to the Administrator's sound discretion determination of what assurances are `necessary.'" NRDC v. EPA, 478 F.2d 875, 884 (1st Cir.1973); see Friends of the Earth v. United States EPA, 499 F.2d 1118, 1126 (2d Cir.1974) (following First Circuit); NRDC v. United S......
-
Environmental crimes.
...implementation plan under the Clean Air Act is subject to an enforcement proceeding" (citing Natural Res. Def. Council, Inc. v. EPA, 478 F.2d 875, 886-88 (1st Cir. 1973), and Getty Oil Co. (E. Operations) v. Ruckleshaus, 467 F.2d 349, 358 (3d Cir. (193.) See United States v. Wheeling-Pittsb......