State of Vt. v. Thomas, 872
| Decision Date | 23 June 1988 |
| Docket Number | D,No. 872,872 |
| Citation | 850 F.2d 99 |
| Parties | , 57 USLW 2020, 18 Envtl. L. Rep. 21,207 STATE OF VERMONT, Conservation Law Foundation of New England, Inc., and Vermont Natural Resources Council, Petitioners, v. Lee THOMAS, Administrator, United States Environmental Protection Agency and the United States Environmental Protection Agency, Respondents, and Alabama Power Company, et al., Intervenors. ocket 87-4119. |
| Court | U.S. Court of Appeals — Second Circuit |
J. Wallace Malley, Jr., Asst. Atty. Gen., Montpelier, Vt. (Jeffrey L. Amestoy, Atty. Gen., State of Vt., Armond Cohen, Diane A. Schachter, Conservation Law Foundation of New England, Boston, Mass., of counsel), for petitioners.
Gregory B. Foote, Office of General Counsel, U.S. Environmental Protection Agency, Washington, D.C. (Roger J. Marzuella, Acting Asst. Atty. Gen., Arthur E. Gowran, U.S. Dept. of Justice, Land and Natural Resources Div., Washington, D.C., of counsel), for respondents.
Henry V. Nickel, Washington, D.C. (Michael L. Teague, Norman W. Fichthorn, Hunton & Williams, Washington, D.C., of counsel), for intervenors.
Before MESKILL and ALTIMARI, Circuit Judges, and MISHLER, District Judge. *
Petitioners, the State of Vermont, Conservation Law Foundation of New England, Inc., and Vermont Natural Resources Council, seek review, pursuant to 42 U.S.C. Sec. 7607(b)(1), of a final ruling of respondent, the Environmental Protection Agency ("EPA"), taking "no action" on those portions of Vermont's state implementation plan ("state implementation plan" or "SIP") addressing "regional haze" submitted under section 169A of the Clean Air Act of 1970, as amended (the "Clean Air Act" or the "Act"), 42 U.S.C. Sec. 7491 (1982). Because we agree with respondent Lee Thomas, Administrator of the EPA (the "Administrator"), that current regulations do not encompass federally enforceable measures to alleviate "regional haze," we deny the petition for review.
Congress enacted the Clean Air Act to address the increasingly grave threat of air pollution to the environment, public health and the general welfare of the nation. 42 U.S.C. Sec. 7401 (1982). The Act directs EPA to prescribe national "ambient air quality standards" and requires states to ensure that the national standards are complied with by adopting implementation plans. Id. Secs. 7409-10. The statutory scheme establishes shared state and federal responsibility for achieving a cleaner and safer environment by providing for federal coordination of regional air pollution control measures implemented by the states. Id. Sec. 7401(a)(3), (4). To ensure that the various state implementation plans meet the requirements of the Act and EPA regulations, EPA is empowered to approve or disapprove SIPs and any subsequent revisions thereto. Id. Sec. 7410.
At issue in this case are the 1977 amendments to the Act which directed EPA, in pertinent part, to adopt regulations protecting visibility in certain national parklands and wilderness areas, designated as "class I Federal areas." Clean Air Act Sec. 169A, 42 U.S.C. Sec. 7491; see id. Sec. 162(a), 42 U.S.C. Sec. 7472(a) (). Class I areas were singled out by Congress as requiring special protection in view of the aesthetic importance of visibility to the continued enjoyment and preservation of the country's scenic vistas. Accordingly, Congress set as a "national goal the prevention of any future, and the remedying of any existing, impairment of visibility ... result[ing] from man-made air pollution" in class I areas, id. Sec. 7491(a)(1), and directed Pursuant to its authority under section 169A of the Act, EPA promulgated regulations in 1980 designed to "establish long-range goals, a planning process, and implementation procedures" toward achieving the national visibility goal. 45 Fed.Reg. 80,084 (). Specifically, EPA determined that visibility impairment is of two types: 1) "plume blight," i.e., traceable streams of smoke, dust or colored gas emanating from single sources or small groups of sources; and 2) "regional haze," i.e., widespread, homogeneous haze from a multitude of sources which impairs visibility in large areas, often for hundreds of miles from the sources of the pollution. Of the two types of air pollution, EPA recognized that plume blight obviously was more susceptible to identification, measurement and thus control. The more vexing problem of how to alleviate regional haze was, in EPA's view, subject to certain scientific and technical limitations. Consequently, the 1980 regulations adopted a "phased approach to visibility protection." Id. at 80,085. Under "Phase I" of the program, EPA regulations targeted plume blight while deferring for "future phases" the complexities of regional haze and urban plumes. Id. at 80,085-86. "Phase II" would address regional haze once monitoring and other scientific techniques progressed to a point that EPA could develop a regulatory program for that type of impairment. Id. at 80,087.
EPA to provide guidelines for the states in order "to assure ... reasonable progress toward meeting the national goal" of visibility enhancement in those areas. Id. Sec. 7491(a)(4), (b).
The effect of the 1980 regulations was to require the 36 states containing class I areas to revise their SIPs to implement a visibility protection program, consistent with the new regulations, to assure reasonable progress toward section 169A's national visibility goal. The regulations mandated that each of the affected states' SIPs contain, inter alia, a "long-term (10-15 years) strategy" to combat visibility impairment in each class I area. 40 C.F.R. Sec. 51.306(a) (1987).
In April 1986, Vermont submitted to EPA its proposed plan addressing visibility impairment at the Lye Brook National Wilderness Area, a 12,000 acre mountain plateau in the southern portion of the Green Mountain National Forest and the state's only class I area. As indicated in Vermont's 300-page SIP, the Lye Brook area is afflicted with summertime haze that has drastically reduced visibility by as much as 40 percent since the mid 1950s. The Vermont plan contained extensive technical analysis demonstrating that Lye Brook's visibility impairment is due primarily to sulfur dioxide pollution originating from out-of-state sources, e.g., power plants and coal and oil company factories. Vermont found that sulfate particle emissions from a multitude of sources located in 8 upwind states--Ohio, Pennsylvania, West Virginia, Kentucky, Tennessee, Illinois, Indiana, and Michigan--were principally responsible for the haze blanketing Lye Brook during the summer months.
Vermont's SIP concluded that while adequate in-state measures to prevent plume blight were already in place, a reduction program aimed at out-of-state sulfate emissions would be necessary to assure reasonable progress toward the national visibility goal. Consequently, Vermont proposed a federally enforceable "long-term strategy" to combat the effects of regional haze at Lye Brook. The long-term strategy included a summertime ambient sulfate standard and a 48-state emissions reduction plan in order to meet the air quality standard by 1995. In addition, Vermont asked EPA to disapprove and revise the SIPs of the eight upwind states which were the major contributors to visibility impairment at Lye Brook, see Clean Air Act Sec. 110(c)(1)(B), 42 U.S.C. Sec. 7410(c)(1)(B) (), and also asked that four of these states not containing class I areas (Ohio, Illinois, Indiana, and Pennsylvania) be added to the list of 36 states required to submit visibility plans.
In December 1986, EPA issued a proposed ruling on Vermont's SIP. 51 Fed.Reg. 43,389. EPA agreed with Vermont's assessment that visibility impairment at Lye Brook is due predominantly to regional haze caused by out-of-state sulfur dioxide emissions. Id. at 43,391. Nevertheless, EPA proposed taking "no action" on those portions of Vermont's SIP addressing regional haze "because EPA has yet to establish requirements for strategies relating to regional haze." Id. at 43,392. EPA objected to Vermont's program as dictating a single solution to a national problem without the benefit of EPA regulations implementing a Phase II regional haze program.
In July 1987, EPA issued its final ruling on Vermont's proposal. 52 Fed.Reg. 26,973. While EPA approved limited portions of Vermont's SIP complying with existing plume blight regulations under section 169A of the Act, EPA decided to take "no action" on those parts of the SIP aimed at controlling regional haze. EPA also denied Vermont's request to disapprove the SIPs of the eight upwind states as well as its request to add four states to the list of states required to submit visibility protection plans for class I areas. In explaining its "no action" ruling, EPA concluded that Vermont's proposal establishing an ambient sulfate standard and its long-term strategy for emissions reduction throughout the continental United States were outside the scope of EPA's existing regulations. EPA viewed as federally enforceable only those portions of a state implementation plan submitted in response to regulations promulgated by the agency. According to EPA, Vermont's regional haze measures could not become federal rules "until such time as EPA decides to promulgate a national regional haze program." Id. at 26,974.
Petitioners thereupon filed a petition for review of EPA's "final rule" pursuant to 42 U.S.C. Sec. 7607(b)(1). We...
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