Sierra Club v. E.P.A., INDIANA-KENTUCKY
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Writing for the Court | Before WRIGHT, ROBINSON, and WILKEY; Opinion for the court filed by J. SKELLY WRIGHT; J. SKELLY WRIGHT; WILKEY |
| Citation | 176 U.S.App.D.C. 335,540 F.2d 1114 |
| Parties | , 176 U.S.App.D.C. 335, 6 Envtl. L. Rep. 20,669 SIERRA CLUB, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY et al., Respondents, The Dayton Power & Light Co. et al., Intervenors. SIERRA CLUB et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY et al., Respondents. PUBLIC SERVICE COMPANY OF COLORADO et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Sierra Club et al., Intervenors. UTAH POWER & LIGHT COMPANY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Sierra Club et al., Intervenors. STATE OF NEW MEXICO ex rel. NEW MEXICO ENVIRONMENTAL IMPROVEMENT AGENCY, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Sierra Club et al., Intervenors. PACIFIC COAL GASIFICATION COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Sierra Club et al., Intervenors. UTAH INTERNATIONAL, INC., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Sierra Club et al., Intervenors.ELECTRIC CORPORATION et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Sierra Club et al., Intervenors. The DAYTON POWER & LIGHT COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Sierra Club et al., Intervenors. BUCKEYE POWER, INC. et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY et al., Respondents, Sierra Club et al., Intervenors. AMERICAN PETROLEUM INSTITUTE et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Sierra Club et al., Intervenors. ALABAMA POWER COMPANY et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Sierra Club et al., Intervenors. MONTANA POWER COMPANY et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Sierra Club et al., Intervenors. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY et al., Respondents, Sierra Club et al., Intervenors. to 75-1372, 75-1575, 75-1663 to 75-1666, 75-1763 and 75-1764, 74-2063. |
| Docket Number | Nos. 74-2063,74-2079,INDIANA-KENTUCKY,75-1368 |
| Decision Date | 02 August 1976 |
Page 1114
Envtl. L. Rep. 20,669
v.
ENVIRONMENTAL PROTECTION AGENCY et al., Respondents,
The Dayton Power & Light Co. et al., Intervenors.
SIERRA CLUB et al., Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY et al., Respondents.
PUBLIC SERVICE COMPANY OF COLORADO et al., Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Sierra Club et al., Intervenors.
UTAH POWER & LIGHT COMPANY, Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Sierra Club et al., Intervenors.
STATE OF NEW MEXICO ex rel. NEW MEXICO ENVIRONMENTAL
IMPROVEMENT AGENCY, Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Sierra Club et al., Intervenors.
PACIFIC COAL GASIFICATION COMPANY et al., Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Sierra Club et al., Intervenors.
UTAH INTERNATIONAL, INC., Petitioner,
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Sierra Club et al., Intervenors.
INDIANA-KENTUCKY ELECTRIC CORPORATION et al., Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Sierra Club et al., Intervenors.
The DAYTON POWER & LIGHT COMPANY et al., Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Sierra Club et al., Intervenors.
BUCKEYE POWER, INC. et al., Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY et al., Respondents,
Sierra Club et al., Intervenors.
AMERICAN PETROLEUM INSTITUTE et al., Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Sierra Club et al., Intervenors.
ALABAMA POWER COMPANY et al., Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Sierra Club et al., Intervenors.
MONTANA POWER COMPANY et al., Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,
Sierra Club et al., Intervenors.
SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER
DISTRICT et al., Petitioners,
v.
ENVIRONMENTAL PROTECTION AGENCY et al., Respondents,
Sierra Club et al., Intervenors.
to 75-1666, 75-1763 and 75-1764, 74-2063.
District of Columbia Circuit.
Decided Aug. 2, 1976.
Bruce J. Terris, Washington, D. C., with whom Nathalie V. Black, Washington, D. C., John D. Hoffman, San Francisco, Cal., and H. Anthony Ruckel, Denver, Colo., were on the brief, for petitioners in Nos. 74-2063 and 74-2079 and intervenors Sierra Club and others.
Henry Charles Griego, Santa Fe, N. M., for petitioner in No. 75-1370. Toney Anaya, Atty. Gen. of the State of New Mexico, and Robert A. Engel, Sp. Asst. Atty. Gen., New Mexico Environmental Improvement Agency, Santa Fe, N. M., were on the brief for petitioner in No. 75-1370.
John J. Adams, Richmond, Va., with whom Joseph C. Carter, Jr. and David F. Peters, Richmond, Va., were on the brief, for petitioners in No. 75-1665; also entered an appearance for intervenors American Petroleum Institute and others in No. 75-1663.
Gerry Levenberg, Washington, D. C., with whom Carl B. Nelson, Jr., Washington, D. C., Sidney G. Baucom and Verl R. Topham, Salt Lake City, Utah, and Girts Krumins, Denver, Colo., were on the brief, for petitioners in Nos. 75-1368 and 75-1369; also entered an appearance for intervenor Utah Power & Light Co. in No. 74-2063.
Francis M. Shea, Washington, D. C., with whom Richard T. Conway, David Booth Beers, and James R. Bieke, Washington, D. C., and Michael J. Ruffatto, Bruce Norton, and Jon L. Kyl, Phoenix, Ariz., were on the brief, for petitioners in Nos. 75-1763 and 75-1764.
Richard J. Denny, Jr., Asst. Gen. Counsel, Environmental Protection Agency, and Erica L. Dolgin, Atty., Dept. of Justice, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen., Robert V. Zenner, Gen. Counsel, Environmental Protection Agency, and Edmund B. Clark and Earl Salo, Attys., Dept. of Justice, Washington, D. C., were on the brief, for respondents. Wallace H. Johnson, Asst. Atty. Gen., Washington, D. C., at the time the record was filed, also entered an appearance for respondents.
James W. McCartney and Norman D. Radford, Jr., Houston, Tex., and K. R. Edsall and Jane C. L. Goichman, Los Angeles, Cal., were on the brief for petitioners in No. 75-1371.
C. C. Dietrich and Robert M. Westberg, San Francisco, Cal., and Richard N. Carpenter, New York City, were on the brief for petitioner in No. 75-1372.
Jerry P. Belknap, Jon D. Noland, and Bryan G. Tabler, Indianapolis, Ind., were on the brief for petitioners in No. 75-1575. Fred P. Bamberger, Evansville, Ind., also entered an appearance for petitioners in No. 75-1575.
Wilson W. Snyder, Toledo, Ohio, was on the brief for petitioners in Nos. 75-1663 and 75-1664. Harry H. Voigt, Henry V. Nickel, Eugene R. Fidell, and Edward L. Cohen, Washington, D. C., also entered appearances for petitioners in Nos. 75-1663 and 75-1664.
John P. Scott, Jr., Birmingham, Ala., Eugene T. Holmes, Atlanta, Ga., and Eaton A. Lang, Gulfport, Miss., were on the brief for petitioners in No. 75-1666.
Jon L. Kyl, Bruce Norton, and Michael J. Ruffatto, Phoenix, Ariz., were on the brief for intervenors Western Energy Supply and Transmission Associates and others in No. 74-2063.
Marilyn S. Kite, Laramie, Wyo., filed a brief on behalf of the States of Alabama, Colorado, Kansas, Minnesota, South Dakota, and Florida as amici curiae.
Page 1119
Nicholas C. Yost, San Francisco, Cal., and Edward L. Rogers, Augusta, Maine, filed a brief on behalf of the States of California and Maine as amici curiae.
Harry H. Voigt, Henry V. Nickel, and Eugene R. Fidell, Washington, D. C., entered appearances for intervenors The Dayton Power & Light Co. et al. in No. 74-2063.
Henry Brown, Washington, D. C., entered an appearance for intervenors Western Energy Supply and Transmission Associates and others in No. 74-2063.
Raphael Moses, Boulder, Colo., entered an appearance for petitioner Platte River Power Authority in No. 75-1368.
David Booth Beers, Washington, D. C., entered an appearance for petitioner Pacific Power & Light Co. in No. 75-1368.
Before WRIGHT, ROBINSON, and WILKEY, Circuit Judges.
Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge.
J. SKELLY WRIGHT, Circuit Judge:
I. INTRODUCTION
One of the primary purposes of the Clean Air Act, 42 U.S.C. § 1857 et seq. (1970), is "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population * * * ." Section 101(b)(1), 42 U.S.C. § 1857(b)(1). Pursuant to the court order in Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D. D.C.1972), aff'd per curiam, 4 ERC 1815 (D.C. Cir. 1972), aff'd by an equally divided Court, sub nom. Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973), the Administrator of the Environmental Protection Agency (EPA) promulgated regulations designed to prevent " significant deterioration" of air quality in those areas which have air that already is cleaner than the national ambient air quality standards. 1
Page 1120
The regulations employ a classification scheme under which these "clean air" regions may be designated Class I, II, or III. All such areas initially are designated Class II, under which specified increments in sulfur dioxide and particulate matter pollution are considered "insignificant." A state, Indian territory, or federal land may be redesignated after hearing and by application to EPA. Designation as Class I implies a region of very clean air, in which relatively small increments in air pollution would be considered significant deterioration; Class III areas are those in which deterioration of air quality to the national ambient air quality standards would be considered insignificant.The court has heard the regulations attacked from several perspectives. Petitioner Sierra Club contends that the regulations fail, in a variety of ways, to prevent significant deterioration of existing clean air. The States of New Mexico, Wyoming, and California 2 agree in some respects with Sierra Club, but are concerned that the regulations infringe on the general regulatory authority vested in the states by the Clean Air Act. A large number of electric power companies and industrial organizations have argued that the regulations are not authorized by the Clean Air Act, that their promulgation was procedurally defective, that the allowable increments are arbitrary and capricious, and that the regulatory structure created by the regulations is unconstitutional.
We conclude that the Administrator's action is rationally based and has not been shown to be either without his authority or unconstitutional. We therefore do not disturb the regulations as promulgated.
II. LITIGATION HISTORY
Suit was filed in May 1972 by the Sierra Club and other environmental protection groups for a declaratory judgment that the Clean Air Act prohibited approval of state implementation plans which permitted significant deterioration of air cleaner than the national secondary standards, and for injunctive relief to prevent the Administrator from approving those portions of state implementation plans which would permit significant deterioration. District Judge John H. Pratt granted plaintiffs' motion for a preliminary injunction and declared invalid an EPA regulation 3 which had required only that state implementation plans "be adequate to prevent * * * ambient pollution levels from exceeding * * * (the applicable) secondary standard." Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D. D.C. 1972). The Administrator was enjoined from approving any state plan "unless he approves the state plan subject to subsequent review by him to insure that it does not permit significant deterioration of existing air quality in any portion of any state where the existing air quality is better than one or more of the secondary standards promulgated by the Administrator." 4
As is apparent from the provisions of the Clean Air Act outlined...
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Environmental Protection Agency,
...an unconstitutional ``taking'' of private property under the Fifth Amendment. See Sierra Club v. Environmental Protection Agency, 540 F.2d 1114, 1139-1140 (D.C. Cir. 1976) (``The use of private land certainly is limited, but the limitation is not so extreme as to represent an appropriation ......
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Environmental Protection Agency,
...an unconstitutional ``taking'' of private property under the Fifth Amendment. See Sierra Club v. Environmental Protection Agency, 540 F.2d 1114, 1139-1140 (D.C. Cir. 1976) (``The use of private land certainly is limited, but the limitation is not so extreme as to represent an appropriation ......
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