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Federal Air-Quality Standards and Their Implementation

  • David P. Currie


With the enactment of the Clean Air Act amendments in 1970, the federal government, essentially an interested bystander as recently as 1960, became the dominant presence in air pollution control. The current statute provides for federal research, financial support of state control programs, and interstate compacts (secs. 101-106). It retains, in vestigial form, a cumbersome conference procedure (sec. 115) copied from the earlier water-pollution statute and never much used in air pollution. irect federal regulatory authority was substantially increased by the 1970 amendments: the federal Environmental Protection Agency (EPA) may now adopt emission standards not only for new vehicles (sec. 202) but also for all aircraft (sec. 231), for new stationary sources of any type that “may contribute significantly to air pollution” (sec. 111), and for any source of a “hazardous” air pollutant, that is, one that “may cause, or contribute to, an increase in mortality or … in serious irreversible, or incapacitating reversible, illness” (sec. 1 12); it may also regulate the contents of motor-vehicle fuels (sec. 211). An emergency provision authorizes the federal agency, absent adequate state or local action, to sue to enjoin any emissions contributing to “an imminent and substantial endangerment to the health of persons” (sec. 303). Yet everyday control of most existing stationary sources remains subject to an awkward joint federal-state system of air-quality standards. That system is the subject of the present article.



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1 84 Stat. 1676.

2 For a brief history of the federal program see David P. Currie, Pollution 153–59 (St. Paul: West Publishing Co., 1975).

3 42 U.S.C. secs. 1857 et seq.

4 “A conference may not be called … with respect to an air pollutant for which … a national primary or secondary ambient air quality standard is in effect ….” Clean Air Act, sec. 115 (b)(4).

5 See Currie, supra note 2, at 154–56.

6 Although required to promulgate a standard for any contaminant for which he has issued the air-quality “criteria” discussed in the text immediately below, the administrator is given discretion not to issue any new criteria, for the list sec. 108 requires him to publish need contain only those pollutants “for which he plans to issue air quality criteria ….”See Thompson v. City of Chicago, 7 E.R.C. 1682, 1685 (N.D. Ill. 1975).

7 36 Fed. Reg. 8186, 40 C.F.R. Part 50.

8 See Kennecott Copper Corp. v. EPA, 462 F.2d 846 (D.C. Cir. 1972). Further judicial review is precluded by the Draconian provisions of sec. 307(b) allowing only 30 days from the date of adoption in which to file a challenge, except as to grounds arising after that time, and making the validity of a regulation immune from attack in any enforcement proceeding.

9 U.S. Dep't of Health, Educ. & Welfare, Air Quality Criteria for Sulfur Oxides 162 (NAPCA Pub. No. AP-50) (1969).

10 Kennecott Copper Corp. v. EPA, 462 F.2d 846 (D.C. Cir. 1972).

11 38 Fed. Reg. 25678–79 (1973).

12 Supra note 9 at 161–62.

13 Id. at 127.

14 Id. at 23.

15 Compare the particulate standards, supra note 7, with Air Quality Criteria for Particulate Matter 188–89 (NAPCA Pub. No. AP-49) (1969).

16 For further discussion of the practical problems of setting ambient standards on the basis of incomplete information see David P. Currie, Rulemaking Under the Illinois Pollution Law, 42 U. Chi. L. Rev. 457, 481–86 (1975).

17 See note 8 supra.

18 S. Rep. No. 91–1196 (1970) at 10.

19 38 Fed. Reg. 25680 (1973).

20 But for the additional language requiring protection “from any known or anticipated adverse effects associated with the presence of such air pollutant,” it might be plausible to argue with respect to secondary standards that what is “requisite to protect the public welfare” can only he determined after balancing costs and benefits. But to hold an effect “adverse” only if there is a net detriment after considering the cost of eliminating would seem to stretch the words beyond their plain meaning and their evident intent.

21 S. Rep. No. 403, 90th Gong., 1st Sess. 2 (1967).

22 In Illinois, where the cost of compliance is made relevant to all pollution regulations including air-quality standards, the federal air-quality levels were first taken as goals for de-signing emission limitations and adopted for state purposes only after the cost of complying with the necessary emission regulations was considered and found to be reasonable. See Currie, supra note 16, at 485.

23 James E. Krier, The Irrational National Air-Quality Standards: Macro- and Micro-Mistakes, 22 U.C.L.A. L. Rev. 323, 327 (1974).

24 Under the original Water Quality Act, cost was taken into account by a three-step stream-by-stream approach amounting to zoning: standards were first devised to protect various stream uses, the individual stream was then classified as protected for designated uses deemed reasonably practicable there, and the corresponding numbers were plugged in. See Currie, supra note 2, at 214. The 1972 amendments, however, promise to limit this sensible approach by requiring the maintenance in all waters of “that water quality … which shall assure protection of public water supplies, agricultural and industrial uses, and the protection and propagation of shellfish, fish and wildlife, and allow recreational activities in and on the water,” absent a showing that there is “no reasonable relationship between the economic and social costs and the benefits to be obtained” by the proposed standard (see. 302). The safety valve just noted is important; it may avoid disproportionate expenditures such as are graphically described in Bruce A. Ackerman, Susan Rose Ackerman & Dale W. Henderson, The Uncertain Search for Environmental Policy: The Costs and Benefits of Controlling Pollution Along the Delaware River, 121 U. Pa. L. Rev. 1225 (1973).

25 Cf. the unusually stringent water-quality standards, based largely on existing concentrations, adopted by Illinois to keep Lake Michigan “especially clean for esthetic and recreational purposes.”In re Effluent Criteria, 3 P.C.B. 755, 764 (1972).

26 The federal agency expressly contemplated that under the original air-quality-standards provision, which was not tied to the levels requisite to protecting public health and welfare, standards might vary even within a single state. See U.S. Dep't of Health, Educ. & Welfare, Guidelines for the Development of Air Quality Standards and Implementation Plans (1969). As Professor Krier concedes, supra note 23, lower administrative costs may argue in favor of uniform standards.

27 Cf. Diamond v. General Motors Corp., 20 Cal. App. 3d 374, 97 Cal. Rptr. 639 (2d Dist. 1971), where the court ruled unmanageable a class action attempting to solve in one proceeding all the air-pollution problems of the Los Angeles area.

28 5 U.S.C. sec. 553.

29 5 U.S.C. sec. 559.

30 481 F.2d 162, 170–71 (1973).

31 477 F.2d 495 (4th Cir. 1973). Accord, Duquesne Light Co. v. EPA, 481 F.2d 1, 8 (3d Cir. 1973); Indiana & Mich. Elec. Co. v. EPA, 509 F.2d 839 (7th Cir. 1975).

32 See 37 Fed. Reg. 10842 (1972).

33 Moreover, many state proceedings may have failed to require disclosure of the basis for the proposed regulations or agency response to serious objections, as the APA has been held implicitly to require. See Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973).

34 It is reported that the EPA now allows written comments on all state plans. Bruce M. Kramer, The 1970 Clean Air Act Amendments: Federalism in Action or Inaction? 6 Tex. Tech. L. Rev. 47, 102 (1974).

35 477 F.2d at 503.

36 481 F.2d 1, 9–10 (1973). The court relied only in part on the emergence of new information after the state hearing. It also gave the EPA an option to dispense with its own hearing by postponing enforcement until the completion of pending state variance proceedings. This seems odd; since the validity of the regulation is not normally in issue in a variance case, it seems unlikely that the state proceedings could remedy any defect in the original rulemaking process.

37 4 E.R.C. 1817 (D. Colo. 1972), reversed, 482 F.2d 1301 (10th Cir. 1973). Having found jurisdiction precluded by sec. 307, the Court of Appeals confusingly assumed that jurisdiction might yet exist if the company's claims were sufficiently meritorious and flatly said “we perceive no violation of Anaconda's right to procedural due process.” 1d. at 1307.

38 David P. Currie & Frank I. Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum. L. Rev. 1, 45–48 (1975), approving Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973).

39 See Currie, supra note 16, at 472–73.

40 See, e.g., Stephen F. Williams, “Hybrid Rulemaking” Under the Administrative Procedure Act: A Legal and Empirical Analysis, 42 U. Chi. L. Rev. 401, 403–8 (1975).

41 Bi-Metallic Inv. Co. v. Colorado, 239 U.S. 441 (1915).

42 See also Currie & Goodman, supra note 38, at 47–48, rejecting the legislative analogy.

43 Kenneth C. Davis, Administrative Law Text 160 (3d ed. St. Paul: West Publishing Co., 1972).

44 United States v. Florida East Coast Ry., 410 U.S. 224 (1973).

45 Bi-Metallic Inv. Co. v. Colorado, 239 U.S. 441 (1915). The request for adjudicatory procedure was rejected in Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973).

46 See Londoner v. Denver, 210 U.S. 373 (1908).

47 482 F.2d at 1306.

48 See, e.g., League of Women Voters v. North Shore Sanitary Dist., 1 Ill. P.C.B. 576 (1971).

49 Currie, supra note 16, at 486–92.

50 Id.

51 344 F. Supp. 253 (D.D.C. 1972), aff'd mem., 4 E.R.C. 1815 (D.C. Cir.), of f'd by an equally divided court, 412 U.S. 541 (1973).

52 S. Rep. No. 91–1196 (1970) at 2.

53 Saying one purpose of the Act was to “protect and enhance the quality of the Nation's air resources,” which of course can be done as a nationwide matter even if particular areas are allowed to slip to the level of the standards.

54 See notes 23–26 supra and corresponding text.

55 Sec. 307 requires attacks upon air-quality standards to be filed within 30 days after promulgation and in the Court of Appeals for the District of Columbia.

56 This is not to say, however, that the administrator must disapprove any state plan containing nondegradation provisions. See notes 66–69 infra and corresponding text.

57 The EPA's regulations implementing the Sierra decision are found at 39 Fed. Reg. 42510 (1974). In addition to requiring the use of the best available technology for new sources everywhere, which if taken literally might result in exorbitant costs (cf. Currie, supra note 16, at 494–95, discussing distillation of waste water), the EPA prescribes maximum permissible increments in ambient particulate and sulfur-dioxide levels for three distinct “zones.” In Zone II, in which all the country was initially placed, particulates may not be increased by more than 10 μg/m3 on an annual basis, nor sulfur dioxide by more than 15. Subject to federal review for consistency with such factors as anticipated growth, social, environmental, or economic effects, or the “impact on regional or national interests,” the states may reclassify individual areas so as to give essentially absolute protection against degradation or none at all.

The consistency of these provisions with the Sierra decision has not been determined. The opinion is sufficiently vague as to the contents of the required provisions to leave the issue pretty much at sea. The Senate report on which the opinion was largely based appears to suggest three different standards in one paragraph: deterioration should be prevented “to the maximum extent practicable”; should not be allowed unless there is “no available alternative”; and simply “need not occur.” The omission of preservation requirements for carbon monoxide, nitrogen oxides, and oxidants raises a serious question under Sierra, as do the decisions that a deterioration of 10 or 15 micrograms per cubic meter on an annual average is permissible and that the states may sometimes opt for degradation to the air-quality standards. Perhaps all the court meant was that the EPA must not be indifferent to the problem of deterioration.

As a policy matter the zoning approach, while perhaps leaving too much to state whim, has much to recommend it; as I have argued above (notes 23–26 supra and corresponding text), it makes sense to keep the air especially clean in areas of special natural value.

58 489 F.2d 390 (1974), reversed on other grounds, Train v. Natural Resources Defense Council, 421 U.S. 60 (1975). The Supreme Court was not asked to review this part of the decision below. The Sixth Circuit has agreed with the Fifth, upholding the EPA's rejection of a provision that would have allowed “intermittent” controls when necessary to meet ambient standards, adding on the basis of a stray remark of the Supreme Court in Train that “emission standards” were only those limiting the “composition” of an emission, not restrictions on operation or on the content of fuels. Big Rivers Elec. Corp. v. EPA, 523 F.2d 16 (1975). Accord, Kennecott Copper Corp. v. Train, 8 E.R.C. 1497 (9th Cir. 1975).

59 See notes 163–67 infra and corresponding text.

60 See notes 51–57 supra and corresponding text.

61 Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972), aff'd mem., D.C. Cir., aff'd by an equally divided court, 412 U.S. 541 (1973).

62 See note 57 supra.

63 “Emission standards, or equivalent measures, and such other measures as may be necessary to achieving or preserving” the ambient standards.

64 Texas v. EPA, 499 F.2d 289, 311 (5th Cir. 1974).

65 Train v. Natural Resources Defense Council, 421 U.S. 60 1482 (1975).

66 477 F.2d 495 (1973).

67 Buckeye Power, Inc. v. EPA, 481 F.2d 162, 168 (1973), quoting H.R. Rep. No. 91–1146 (1970).

68 The Third Circuit decisions are St. Joe Minerals Corp. v. EPA, 508 F.2d 743 (1975); Duquesne Light Co. v. EPA, 522 F.2d 1186 (1975).

69 5 U.S.C. sec. 706.

70 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415–16 (1971).

71 Sec. 101(a)(3).

72 S. Rep. No. 91–1196 (1970) at 2–3.

73 The Fourth Circuit cleverly suggested in Appalachian Power, 477 F.2d at 506, that a plan was inadequate if too stringent to be met at reasonable cost, apparently assuming such a requirement would not be enforced. I see no statutory justification for second-guessing the state's willingness to enforce what it has adopted; sec. 110 requires only that the plan “provide for” attainment of the ambient standard, not that it be reasonable in doing so. The Fourth Circuit's argument would mean the ambient standard would go unmet if the costs were unreasonably high, while the statute demands adoption of a plan strict enough to meet the standard.

74 In the case of secondary standards, the statute requires the EPA to assure that they be met within a “reasonable time,” implying consideration of all factors that ought to inform such a judgment, including technology and cost. Thus in determining a reasonable time to meet secondary standards in adopting a federal plan the EPA must take account of feasibility and cost; even a 50-year period to allow development of control equipment might be permissible, there being no indication that a “reasonable time” is only that required for the installation of known technology. In approving a state-proposed deferral date for secondary standards the administrator may make similar allowances. That he may disapprove such a date for failure to allow as much time as the EPA deems reasonable, however, seems doubtful in light of the statutory design, discussed in the text above, of interfering only to prevent laxity by the states, not to assure that state standards are generally reasonable.

75 Union Elec. Co. v. EPA, 515 F.2d 206 (8th Cir. 1975); Indiana & Mich. Elec. Co. v. EPA, 509 F.2d 839 (7th Cir. 1975).

76 Cf. New Hampshire v. AEC, 406 F.2d 170 (1st Cir. 1969), holding the Atomic Energy Commission, with authority to regulate radiation hazards of nuclear power plants, could not consider thermal pollution in passing upon a license application.

77 The statute fails to specify explicit requirements for a federally adopted plan, but the administrator is to propose regulations if a state plan is not “in accordance with the requirements” of sec. 110 and to adopt them unless the state has meanwhile submitted an adequate plan. See Pennsylvania v. EPA, 500 F.2d 246, 252 n.7 (3d Cir. 1974), holding that the requirements for state plans “should guide” determination of whether an EPA plan is arbitrary or capricious.

78 See South Terminal Corp. v. EPA, 504 F.2d 646, 675 (1st Cir. 1974). However, said the court in South Terminal, relative cost effectiveness is an appropriate consideration for the EPA in deciding among alternative strategies for meeting the standard, 504 F.2d at 676. See also Texas v. EPA, 499 F.2d 289, 317 (5th Cir. 1974), upholding a federally imposed requirement although no technology for meeting it was available.

79 This position is implicit in the remands in South Terminal Corp. v. EPA, 504 F.2d at 662–66, and in Texas v. EPA, 499 F.2d at 295–310, for further information as to the necessity for certain plan provisions in order to meet the air-quality standards.

80 Samuel A. Bleicher, Economic and Technical Feasibility in Clean Air Act Enforcement Against Stationary Sources, 89 Harv. L. Rev. 316, 331–32 (1975), seeks to support the same conclusion by arguing that the Supreme Court in Train v. Natural Resources Defense Council, Inc., 421 U.S. 60 (1975), “vigorously asserted the Administrator's lack of authority to review SIP's [plans] for economic or technical feasibility”:

[T]he Agency is required to approve a state plan which provides for the timely attainment and subsequent maintenance of [NAAQS], and which also satisfies [sec. 110's] other general requirements. The Act gives the Agency no authority to question the wisdom of a State's choices of emission limitations … so long as the ultimate effect of a State's choice …. is compliance with the national standards [emphasis in original].

Since the issue in Train was the quite distinct one of the administrator's authority to reject proposed state variance provisions (see text at notes 101–20 infra), the case cannot be said to have held one way or the other as to the relevance of feasibility or cost in approving emission standards. Moreover, even as dictum the quoted passage is essentially irrelevant, for the sub-stance of the Court's statement is that only the statute, not the EPA's notion of good policy, affords a basis for the administrator's review of emission standards. That “compliance with the national standards” is given heavy weight in the last quoted sentence cannot eradicate the earlier reference to the “other” requirements of sec. 110, which the Court properly made no effort to define. Indeed, “national standards” in the last sentence may mean the requirements of sec. 110 rather than the air-quality standards.

81 See 38 Fed. Reg. 2194–2200 (1973). The federal implementation plan contemplates gasoline rationing sufficient to accomplish this reduction, 40 C.F.R. secs. 52.241-52.266 (1974).

82 See generally U.S. Dep't of Health, Educ. & Welfare, Air Quality Standards for Photo-chemical Oxidants (NAPCA Pub. No. AP-63) (1970), passim.

83 See notes 116–18 infra and corresponding text.

84 E.g., Ill. Rev. Stat. ch. 111£, sec. 1035, discussed in David P. Currie, Enforcement Under the Illinois Pollution Law, 70 Nw. U. L. Rev. 389, 408–11 (1975).

85 The failure to provide one way or the other is ambiguous, especially since other sections of the same statute resolve similar issues in conflicting ways. Compare sec. 112(c)(2), which allows exemptions from hazardous-pollutant standards to be “extended for one or more additonal periods,” with sec. 202(b)(5)(D), which makes clear that one-year extensions of the date for meeting 1977 motor-vehicle emission standards may not be renewed. The Supreme Court has noted in passing that “the language of sec. 110(f) would … seem to support any number of successive one-year postponements,” though observing that the Conference Committee had “deleted, without comment, language in the Senate predecessor to sec. 110(f) that explicitly permitted successive postponements.” Train v. Natural Resources Defense Council, 421 U.S. 60 (1975) (dictum). See S. Rep. No. 91–1196 (1970) at 90. The language of sec. 110(e), however, is more easily read to preclude successive extensions, since it provides for extending “the three-year period referred to in subsection (a)(2)(A)(i),” that is, the original plan date rather than the currently applicable (extended) one, and since it requires application “at the time of submission of any plan.” The last wards, however, arguably could include revisions. See Arne E. Gubrud, The Clean Air Act and Mobile-Source Pollution Control, 4 Ecol. L.Q. 523, 529 (1975), concluding without much discussion that neither (e) nor (f) is renewable and that the statute imposes an “absolute deadline” of mid-1978. Robert Baum of EPA has taken the same position: “There is no safety valve” beyond 1978. Robert L. Baum, The Federal Program for Air Quality, 5 Nat. Res. Lawyer 165, 168 (1972), and id. at 202 (panel discussion).

86 Friends of the Earth v. EPA, 499 F.2d 1118, 1127 (1974). In connection with other possible strategies, the same opinion may have applied the wrong test, saying there was “no showing that these strategies would accomplish anything more than a successful parking ban strategy.”Id. at 1126. This language is subject to the interpretation that the court thought it necessary that the rejected strategy, standing alone, be better than the parking program the state had imposed; the proper question, which may be what the court had in mind, is whether the proposed strategies in conjunction with parking limitations would be more effective than the latter alone. The court gave an additional reply to the suggestion that commuter discounts at toll bridges should be ended: that “apparently would have to be done by the Port of New York Authority, an independent organization ….”Id. at 1127. The independence of the Port Authority might disable the state from imposing the measure, but very probably the federal EPA could order it done, and if that would suffice to meet the ambient standard the answer should be a federal regulation, not a time extension, for there is no absence of technology for achieving the standard as required by sec. 110(e).

87 Natural Resources Defense Council v. EPA, 494 F.2d 519, 525 (2d Cir. 1974); Friends of the Earth v. EPA, 499 F.2d at 1126.

88 499 F.2d 289, 312–18 (1974).

89 The Second Circuit has agreed without much discussion, noting that “the concept of reasonableness contemplates a weighing of slight impact against probable costs,” Natural Resources Defense Council v. EPA, 494 F.2d 519, 525 (2d Cir. 1974), and approving the administrator's rejection of gasoline rationing for New York City since, as he had said, “the possibilities of evasion, the likelihood of noncompliance, and the difficulties of enforcement are too great to make this measure practicable.” Friends of the Earth v. EPA, 499 F.2d 1118, 1127 (1974).

90 Sec. 110(e)(1)(a) allows an extension, subject to sec. 110(e)(2), if the administrator, upon a governor's timely request, finds that:

(A) one or more emission sources (or classes of moving sources) are unable to comply with the requirements of such plan which implement such primary standard because the necessary technology or other alternatives are not available or will not be available soon enough to permit compliance within such three-year period, and

(B) the state has considered and applied as a part of its plan reasonably available alternative means of attaining such primary standard and has justifiably concluded that attainment of such primary standard within the three years cannot be achieved.

Sec. 110(e)(2) further conditions an extension on the administrator's determination that the state plan provides for “… (B) such interim measures of control of the sources (or classes) described in paragraph (1)(A) as the administrator determines to be reasonable under the circumstances.”

91 499 F.2d 289, 312–14.

92 See note 89 supra.

93 See In re Effluent Criteria, 3 Ill. P.C.B. 401, 413 (1972).

94 This implicit qualification is necessary if there are ever to be extensions, for there is always technology adequate to achieve any emission standard by shutting down the source: the padlock.

95 See 38 Fed. Reg. 10317 (1973).

96 To require immediate retirement of older vehicles or to require them to be fitted with up-to-date control equipment would be an alternative strategy subject to the test of reasonableness, not a technologically available means of meeting the implementation plan requirement, which by hypothesis applies only to new vehicles. Such sophistic distinctions underline the lack of coherent policy in sec. 110(e).

97 Sec. 209, 42 U.S.C. sec. 1857f-6a. For complications on this issue see David P. Currie, Motor Vehicle Air Pollution: State Authority and Federal Pre-emption, 68 Mich. L. Rev. 1083 (1970).

98 499 F.2d at 313–14 n.44 (emphasis added).

99 Problems of energy supply induced Congress in 1974 to enact sec. 119, 42 U.S.C. sec. 1857c-10, which in most complicated fashion authorizes postponements of deadlines for meeting plan requirements applicable to fuel-burning sources under certain conditions. The principal feature is an extension for electric-power stations that converted to coal burning during a specific period, or have been forbidden by the Federal Energy Administration to burn oil or gas, provided that primary air-quality standards are not violated and that compliance with plan requirements is achieved by the end of 1978.

100 40 C.F.R. sec. 51.15(d).

101 1d. secs. 51.32(f), 51.8.

102 See West Penn Power Co. v. Train, 7 E.R.C. 2178, 2181–82 (3d Cir. 1975), where the plaintiff's contentions are summarized but. the question not reached.

103 See notes 110–16 infra and corresponding text.

104 Getty Oil Co. v. Ruckelshaus, 342 F. Supp. 1006, 1017–19 (D. Del. 1972), remanded on other grounds, 467 F.2d 349 (3d Cir. 1972) (application); Metropolitan Washington Coalition for Clean Air v. District of Columbia, 511 F.2d 809 (D.C. Cir. 1975) (grant). The result can be awkward, to say the least, for the EPA (or a citizen plaintiff as in the Metropolitan Washington case) may find itself enforcing a standard that is about to be amended out of existence.

105 See notes 118–38 infra and corresponding text.

106 Natural Resources Defense Council v. EPA, 489 F.2d 390, 398–403 (1974).

107 Natural Resources Defense Council v. EPA, 478 F.2d 875, 884–88 (1st Cir. 1973); Natural Resources Defense Council v. EPA, 483 F.2d 690, 693–94 (8th Cir. 1973); Natural Resources Defense Council v. EPA, 494 F.2d 519, 523 (2d Cir. 1974).

108 478 F.2d at 888–89.

109 Natural Resources Defense Council v. EPA, 507 F.2d 905, 911–17 (1974).

110 421 U.S. 60 (1975), reversing the Fifth Circuit decision cited in note 106 supra.

111 The nondegradation controversy is irrelevant here, since the issue is control of existing sources. Nondegradation is concerned with preservation of areas now cleaner than the standards, not with bringing dirty areas into compliance.

112 See S. Rep. No. 91–1196 (1970) at 89.

113 H.R. Rep. No. 91–1783 (1970) at 45.

114 See e.g., Ill. Rev. Stat. ch. 111£, secs. 1035–37.

115 That, for example, was the practice under the Illinois Sanitary Water Board Act, which made no provision for variances. See GAF Corp. v. EPA, 1 Ill. P.C.B. 481, 483–84 (1971).

116 Citizen-suit provisions mitigate the danger to some extent, see Ill. Rev. Stat. ch. 111£, sec. 1031(b); but the costs and difficulties of citizen enforcement make that a less-than-adequate substitute for enforcement by the authorities. See Currie, supra note 84, at 451–53.

117 See 4 Environment Reporter, Current Developments 2004 (1974).

118 Senator Muskie, the principal sponsor, clearly thought statutory amendments were the answer:

Congress, in the interest of public health, should say to the country and to the industry that this is what the health requires. The industry should go to work over the next 5 years to either make it possible or, if it proves to be impossible, ask Congress to change the policy.

116 Cong. Rec. 16,099 (daily ed. Sept. 21, 1970). But this is carrying mistrust of the administration to the point of disabling Congress from carrying out its proper functions. For if Congress must spend its time passing on contentions of unreasonable hardship it will assume much of the task of an administrative agency, and it was the inability of Congress to attend to such a mass of detail that led to the delegation of rulemaking power in the first place. Statutes should be drafted to last, not with the expectation of amending them every few years in the light of changing conditions or better information.

119 500 F.2d 246 (1974).

120 H.R. Rep. No. 91–1146 (1970) at 3–4.

121 116 Cong. Rec. 19204 (Rep. Staggers, floor manager).

122 See Norman Dorsen, The National No-Fault Motor Vehicle Insurance Act: A Problem in Federalism, 49 N.Y.U. L. Rev. 45, 51 (1974).

123 Id. at 50–58.

124 Maryland v. EPA, 8 E.R.C. 1105 (4th Cir. 1975); Brown v. EPA, 521 F.2d 827 (9th Cir. 1975); District of Columbia v. Train, 521 F.2d 971 (D.C. Cir. 1975).

125 Supra note 122 at 57.

126 392 U.S. 183 (1968).

127 392 U.S. at 197.

128 Supra note 122 at 51–52.

129 Steward Machine Co. v. Davis, 301 U.S. 548, 589–90 (1937). See also id. at 596, emphasizing, in contrast to the EPA's construction of the Clean Air Act, that the states were free to back out of the unemployment-compensation bargain at any time.

130 E.g., Mondou v. New York, N.H. & H.R.R., 223 U.S. 1 (1912).

131 Testa v. Katt, 330 U.S. 386 (1947).

132 Douglas v. New York, N.H. & H.R.R., 279 U.S. 377 (1929); Missouri ex rel. Southern Ry. v. Mayfield, 340 U.S. 1 (1950).

133 McKnett v. St. Louis & S.F. Ry., 292 U.S. 230 (1934).

134 Supra note 122 at 54.

135 See The Federalist, No. 82 (A. Hamilton): “The judiciary power of every government looks beyond its own local or municipal laws, and, in civil cases, lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe.”

136 Supra note 122 at 48 & n.18.

137 Thus in New York v. United States, 326 U.S. 572 (1946), two justices argued it was unconstitutional for the United States to tax sales of mineral waters by the state; four others, disagreeing, acknowledged that “we could hardly say that a general non-discriminatory real estate tax (apportioned), or an income tax laid upon citizens and States alike could be constitutionally applied to the State's capitol, its State-house, its public school houses, public parks, or its revenues from taxes or school lands ….”Id. at 587–88. The other two participating justices thought only taxes that discriminated against the state were forbidden.

138 See United States v. California, 297 U.S. 175, 185 (1936), saying that while “we look to the activities in which the states have traditionally engaged as marking the boundary of the restriction upon the federal taxing power,” there was “no such limitation upon the plenary power to regulate commerce.” Since the issue there was federal safety requirements imposed on a state-operated railroad, there was no occasion to hold there were no implicit limits on the commerce power based on state sovereignty.

139 Fry v. United States, 95 Sup. Ct. 1792, 1795–96 n.7 (1975) (dictum).

140 497 F.2d 1172 (1974).

141 502 F.2d 1238, 1246 (1974).

142 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689 (1949).

143 337 U.S. at 691 n.11. Cf. Edelman v. Jordan, 415 U.S. 651 (1974).

144 See, e.g., Clackamas County v. McKay, 219 F.2d 479 (D.C. Cir. 1954); Clark Byse, Proposed Reforms in Federal “Nonstatutory” Judicial Review: Sovereign Immunity, Indispensable Parties, Mandamus, 75 Harv. L. Rev. 1479, 1502, 1509 (1962).

145 Cf. secs. 111(c), 112(d), authorizing such a delegation with respect to federal emission standards for new sources and for hazardous pollutants; Water Pollution Control Act, sec. 402(b), 33 U.S.C. sec. 1342(b) (NPDES permits).

146 See EPA's comment, 37 Fed. Reg. 10842 (1972), that “non-regulatory” provisions such as surveillance, resources, and intergovernmental cooperation are “not susceptible to correction through promulgation of regulations by the administrator.”

147 See notes 118–38 supra and corresponding text.

148 See 37 Fed. Reg. 10842 (1972).

149 Clean Air Act, sec. 105(a)(1)(B), (C), 42 U.S.C. sec. 1857c(a)(1)(B), (C).

150 Natural Resources Defense Council v. EPA, 4–89 F.2d 390 (5th Cir. 1974).

151 Natural Resources Defense Council v. EPA, 478 F.2d 875, 883 (1st Cir. 1973).

152 See Crenshaw v. United States, 134 U.S. 99 (1890).

153 E.g., Ill. Rev. Stat. ch. 111£, sec. 1027. I do not read the federal statute to override state law in this regard. While it appears to require states to submit plans, it carefully prescribes not what state plans may or must contain but the conditions for federal approval, and the remedy for an inadequate state plan is merely the adoption of a federal one.

154 Natural Resources Defense Council v. EPA, 483 F.2d 690, 692–93 (1973).

155 Natural Resources Defense Council v. EPA, 478 F.2d 875, 890–91 (1973).

156 “It is difficult to imagine what sort of guarantee the current Rhode Island executive or legislature could give the E.P.A. to insure that adequate resources would be devoted to the Plan.” 478 F.2d at 883–84.

157 499 F.2d 1118, 1124 (1974).

158 “Emission limitations and other measures necessary for attainment and maintenance of any national standard… shall be adopted as rules and regulations enforceable by the State agency…. Except as otherwise provided by sec. 51.11(6), submittal of a plan setting forth proposed rules and regulations will not satisfy the requirements of this section….” 40 C.F.R. sec. 51.22. Sec. 51.11(b), in lieu of requiring proof of legal authority to carry out an implementation plan, allows a state in connection with transportation and land-use measures to set forth a timetable for obtaining such authority.

159 Air Quality Act of 1967, 81 Stat. 485, 493.

160 Thirty-day notice in the individual case as a prerequisite to federal orders, injunctive actions, and prosecutions is dispensed with during a “period of Federally assumed enforcement” following a finding that violations “are so widespread that such violations appear to result from a failure of the state … to enforce the plan effectively.” Prior to a 1971 amendment, such a declaration was necessary to permit the filing of a civil or criminal action except for violation of a prior federal order. The remaining marginal advantages of federally assumed enforcement seem slight enough to make this cumbersome and insulting step appear unlikely to be taken except for its publicity value in censuring an uncooperative state. The whole procedure does little but confuse and clutter the statute, and it would be better omitted now that it is unnecessary to effective federal enforcement.

161 See notes 49–81 supra and corresponding text.

162 Any constitutional challenge to such an unbridled delegation of authority to the states to adopt federally enforceable standards, however, seems clearly foreclosed by United States v. Sharpnack, 355 U.S. 286 (1958) (upholding the Assimilative Crimes Act).

163 E.g., Ill. P.C.B. Regs., ch. 2, Rule 102.

164 Natural Resources Defense Council v. EPA, 489 F.2d 390, 407–8 (1974). See note 59 supra and corresponding text.

165 Cf. United States v. Big Chief, Inc., 7 E.R.C. 1841 (E.D. La. 1975), doubting district-court jurisdiction to review a work rule requiring wetting of asbestos materials before demolition, since it was probably an “emission standard” subject to exclusive court-of-appeals review under sec. 307 and holding on the merits that the rule was an “emission standard” authorized by sec. 112 because it “undeniably control[s] the amount of ambient emissions.”

166 Kentucky v. Ruckelshaus, 497 F.2d 1172, 1175–76 (1974). See notes 141–42 supra and corresponding text.

167 New Mexico Citizens for Clean Air & Water v. Train, 6 E.R.C. 2061 (D.N.M. 1974); Thompson v. City of Chicago, 7 E.R.C. 1682, 1683–84 (N.D. Ill. 1975).

168 S. Rep. No. 91–196 (1970) at 38–39.

169 See id. at 97–98.

170 New Mexico Citizens for Clean Air & Water v. Train, 6 E.R.C. 2061 (D.N.M. 1974); Kentucky v. Ruckelshaus, 497 F.2d 1172, 1175–76 (1974).

171 S. Rep. No. 91–196 (1970) at 38.

172 id.

173 J. I. Case Co. v. Borak, 377 U.S. 426 (1964).

174 National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453 (1974).

175 Metropolitan Washington Coalition for Clean Air v. District of Columbia, 511 F.2d 809, 814 n.26 (1975), relying on Sierra Club v. Morton, 405 U.S. 727, 732 11.3 (1972). To the contrary, constitutional doubts were one basis for refusing to read the citizen-standing provision of sec. 304 into sec. 307's authorization for appeals from EPA regulations-as the First Circuit did in dictum without addressing the constitutional issue, Natural Resources Defense Council v. EPA, 484 F.2d 1331 (1973)-in Natural Resources Defense Council v. EPA, 481 F.2d 116, 121 (10th Cir. 1973).

176 Flast v. Cohen, 392 U.S. 83, 120, 130 (1968) (dissenting opinion).

177 Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972).

178 See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 218 (1974), saying that the earlier Data Processing case (397 U.S. 150 (1970)) had “held that, whatever else the ‘case or controversy’ requirement embodied, its essence is a requirement of 'injury in fact.”

179 Warth v. Seldin, 95 Sup. Ct. 2197, 2205 (1975).

180 See Flast v. Cohen, 392 U.S. 83, 131–32.

181 See 4 Environment Reporter, Current Developments 2004, 2006 (1974).

182 Water Pollution Control Act, sec. 309, 33 U.S.C. sec. 1309.

183 See United States v. Jenkins, 95 Sup. Ct. 1006 (1975).

184 Cf. Muniz v. Hoffman, 95 Sup. Ct. 2178 (1975), involving a £10,000 fine for criminal contempt imposed upon a union.

185 Hepner v. United States, 213 U.S. 103 (1909); United States v. J. B. Williams Co., 498 F.2d 414 (2d Cir. 1974). For further discussion see Currie, supra note 84, at 447–49.

186 Or after declaration of a period of federally assumed enforcement, see note 160 supra.

187 See note 160 supra.

188 See, e.g., 5 U.S.C. sec. 706, incorporating the substantial evidence test for many adjudications required to be made by federal agencies on the administrative record and the “arbitrary and capricious” standard for many others.

189 5 U.S.C. sec. 554.

190 Cf. Goss v. Lopez, 95 Sup. Ct. 729 (1975) (school suspension); Morrissey v. Brewer, 408 U.S. 471 (1972) (parole revocation). Even Yakus v. United States, 321 U.S. 414 (1944), which upheld a provision making the invalidity of a regulation no defense to a prosecution for its violation, did so on the basis of an adequate prior opportunity to challenge the regulation itself.

191 See Currie, supra note 84, at 444–45.

192 342 F. Supp. 1006, 1020 (D. Del. 1972). The court of appeals held there was no jurisdiction to consider the issue because in effect the plaintiff was challenging the validity of the implementation plan contrary to sec. 307(b). 467 F.2d 349 (3d Cir. 1972). The correctness of that determination I leave for a future article on judicial review.

193 EPA, National Strategy for Control of Sulfur Oxides from Electric Power Plants (1974) at ii. Moreover, the EPA's order against Philadelphia Electric Co. under sec. 113 allows it until 1978 to comply. See 5 Environment Reporter, Current Developments 1097–98 (1974), noted in Kramer, supra note 34, at 75, observing that an order for delayed compliance under sec. 113 “becomes in reality a compliance schedule.”

194 Indiana & Mich. Elec. Co. v. EPA, 509 F.2d 839, 845 (1975) (dictum). Professor Bleicher, supra note 80, argues that feasibility and cost are irrelevant in enforcement as well as in rulemaking. He neither quotes nor explains the language respecting reasonable time in sec. 113.

195 See note 72 supra and corresponding text.

196 It seems not unlikely that an EPA order extending the date for plan compliance would either foreclose a citizen suit seeking earlier enforcement under sec. 304 on the ground of privity between public and private attorneys general, see Bulk Terminals Co. v. EPA, 29 Ill. App. 3d 978, 331 N.E.2d 260 (1st Dist. 1975), or impede it because of the deference due to an expert agency charged with the administration of the statute. Yet the citizen-suit provision was inserted as a protection against possible inadequate prosecution by the agency, see S. Rep. No. 91–1196 (1970) at 21, 36–37; to give the agency power to postpone citizen enforcement would be difficult to reconcile with this purpose. In any event, because sec. 116 provides that states are not barred from enforcing more stringent standards of their own, a state would be free to ignore the federal order. Indeed, there is a serious tension between sec. 113 and sec. 110 as the EPA has construed it (see notes 66–83 supra and corresponding text); for the states, forbidden to allow cost to postpone compliance with ambient standards, may find themselves, under pressure of federal law, enforcing deadlines that the EPA itself would postpone under sec. 113.

197 Cf. Ill. Rev. Stat. ch. 111£, secs. 1028, 1035.

198 See H.R. Rep. No. 91–1146 (1970) at 28.

199 See, e.g., Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970).

200 33 U.S.G. sec. 407: “It shall not be lawful to… discharge … any refuse matter of any kind or description whatever… into any navigable water of the United States….”See Reserve Mining Co. v. EPA, 514 F.2d 492 (8th Gir. 1975).

201 Indiana & Mich. Elec. Co. v. EPA, 509 F.2d 839, 845 (1975) (dictum).

202 Sec. 113.

203 See sec. 110(a)(2)(E), requiring assurances of adequate state resources “to carry out such implementation plan”; sec. 113(a)(2), providing for federal enforcement without the usual 30-day notices upon finding that widespread violations “appear to result from a failure of the State … to enforce the plan effectively.”

204 Bartkus v. Illinois, 359 U.S. 121 (1959); Abbate v. United States, 359 U.S. 187 (1959).

205 28 U.S.C. sec. 1738.

206 See Blonder-Tongue Laboratories, Inc. v. University of Ill. Foundation, 402 U.S. 313, 329 (1971) (dictum). Distinguishable is Bulk Terminals Co. v. EPA, 29 Ill. App. 3d 978, 331 N.E.2d 260 (1st Dist. 1975), where city, state, and private enforcers were all deemed to be acting on behalf of a single sovereign, the state.

207 Buckeye Power, Inc. v. EPA, 481 F.2d 162, 167 n.2 (6th Cir. 1973).

208 In re Grand Jury Proceedings, 7 E.R.C. 1799 (W.D. Pa. 1975). The court of appeals reversed, 525 F.2d 151 (3d Cir. 1975), without passing on the question whether state enforcement precluded federal.

209 Quoting a dictum from Duquesne Light Co. v. EPA, 481 F.2d 1, 4 (3d Cir. 1973).

210 See notes 99–104 supra and corresponding text.


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