control plans-implementing the national primary and secondary standardswhich had been submitted to the Administrator pursuant to Section 110 of the Clean Air Act of 1970. 42 U.S.C. § 1875c-5 (1970). Having been informed that the Administrator would not be approving the plans until May 31, 1972, we denied the motion for temporary restraining order and scheduled a hearing on the preliminary injunction for May 30. At the conclusion of the May 30 hearing, having considered the pleadings and memoranda and the arguments of counsel, we announced our findings and conclusions and granted plaintiffs' motion for preliminary injunction. We now set down those findings and conclusions in memorandum form. STANDING Although the Administrator does not question plaintiffs' standing to bring this action, it is clear to us that under the allegations of the complaint each of the four environmental groups who are parties-plaintiff has the requisite standing, even under the limitation expressed in the most recent Supreme Court case on the subject, Sierra Club v. Morton, U.S. 92 S. Ct. 1361 (1972). JURISDICTION The Administrator challenges the jurisdiction of this Court to hear this case on the theory that the plaintiffs should wait until the Administrator approves the plans and then appeal the approval under 42 U.S.C. § 1857h-5. We disagree. It is our judgment that plaintiffs have the right to bring the action in this Court at this juncture under 42 U.S.C. § 1857h-2(a) which provides in pertinent part that "Any person may commence a civil action on his own behalf (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, . . . to order the Administrator to perform such act or duty, as the case may be.' The Administrator, in recent testimony before Congress, indicated that he had declined to require state implementation plans to provide against significant deterioration of the existing clean air areas-i.e., areas with levels of pollution lower than the secondary standard-because he believed that he lacked the power to act otherwise. Unpublished transcript of Hearings Before the Subcomm. on Public Health and the Environment of the House Comm. on Interstate and Foreign Commerce, 92d Cong., 2d Sess, at 351-52 (remarks delivered on Jan. 27-28, 1972). Previously, the Administrator had promulgated a regulation permitting states to submit plans which would allow clean air areas to be degraded, so long as the plans were merely "adequate to prevent such ambient pollution levels from exceeding such secondary standard." 40 C.F.R. § 51.12(b) (1972). Plaintiffs' claim that the Administrator's interpretation of the extent of his authority is clearly erroneous and that his declination to assert his authority, evidenced in his remarks before Congress and his promulgation of a regulation that is contrary to the Clean Air Act, amounts to a failure to perform a nondiscretionary act or duty. It would appear that such an allegation is precisely the type of claim which Congress, through 52 U.S.C. § 1857h-2(a), intended interested citizens to raise in the district courts. In view of this clear jurisdictional grant, the Administrator's assertion that plaintiffs should await his approval of the state plans (formulated, in part, pursuant to his allegedly illegal regulation) and then proceed to appeal his approval under 42 U.S.C. § 1857h-5 is, in our opinion, untenable. In discussing the merits of the present action-i.e., the extent of the Administrator's authority and the validity of the questioned regulation-we turn to the stated purpose of the Clean Air Act of 1970, the available legislative history of the Act and its predecessor, and the administrative interpretation of the Act. PURPOSE OF THE ACT In Section 101 (b) of the Clean Air Act, Congress states four basic purposes of the Act, the first of which 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." 42 U.S.C. § 1857 (b) (1). On its face, this language would appear to declare Congress' intent to improve the quality of the nation's air and to prevent deterioration of that air quality, no matter how presently pure that quality in some sections of the country happens to be. LEGISLATIVE HISTORY The "protect and enhance" language of the Clean Air Act of 1970 stems directly from the predecessor Air Quality Act of 1967, 81 Stat. 485. The Senate Report underlying the 1967 Act makes it clear that all areas of the country were to come under the protection of the Act. S. Rep. No. 403, 90th Cong., 1st Sess. 2-3 (1967). The administrative guidelines promulgated by the National Air Pollution Control Administration (NAPCA) of the Department of Health, Education and Welfare (HEW), which at that time had the responsibility of carrying out the directives of the Air Quality Act of 1967, point up the significance of the "protect and enhance" language as follows: "[A]n explicit purpose of the Act is 'to protect and enhance the quality of the Nation's air resources' (emphasis added). Air quality standards which, even if fully implemented, would result in significant deterioration of air quality in any substantial portion of an air quality region clearly would conflict with this expressed purpose of the law." National Air Pollution Control Administration, U.S. Dept. of HEW, Guidelines for the development of Air Quality Standards and Implementation Plans, Part I § 1.51, p. 7 (1969). Turning now to the legislative history of the 1970 Act, we note at the outset that both Secretary Finch and Under Secretary Veneman of HEW testified before Congress that neither the 1967 Act nor the proposed Act would permit the quality of air to be degraded. Hearings on Air Pollution Before the Subcomm. on Air and Water Pollution of the Senate Public Works Comm., 91st Cong., 2d Sess., at 132-33, 143 (1970); Hearings on Air Pollution and Solid Waste Recycling Before the Subcomm. on Public Health and Welfare of the House Interstate and Foreign Commerce Comm., 91st Cong., 2d Sess., at 280, 287 (1970). More important, of course, is the language of the Senate Report accompanying the bill which became the Clean Air Act of 1970. The Senate Report, in pertinent part, states: "In areas where current air pollution levels are already equal to or better than the air quality goals, the Secretary shall not approve any implementation plan which does not provide, to the maximum extent practicable, for the continued maintenance of such ambient air quality." S. Rep. No. 1196, 91st Cong., 2d Sess., at 2 (1970). The House Report, although not as clear, does not appear to contradict the Senate Report. See H. Rep. No. 1146, 91st Cong., 2d Sess., at 1, 2 and 5 (1970). ADMINISTRATIVE INTERPRETATION As we noted under our discussion of the legislative history of the 1967 Act, the 1969 guidelines promulgated by HEW's NAPCA emphasized that significant deterioration of air quality in any region would subvert the "protect and enhance" language of the 1967 Act. We also pointed out that Secretary Finch and Under Secretary Veneman applied this same administrative interpretation to the very same language found in the proposed 1970 Act. On the other hand, the present Administrator, in remarks made in January and February of 1972 before certain House and Senate Subcommittees, has taken the position that the 1970 Act allows degradation of clean air areas. Several Congressional leaders voiced their strong disagreement with the Administrator's interpretation. Unpublished transcript of Hearings Before the Subcomm. on Public Health and the Environment of the House Comm. on Interstate and Foreign Commerce, 92d Cong., 2d Sess., at 352 (remarks of Congressman Paul Rogers, Chairman of the Subcommittee); Unpublished transcript of Hearings Before the Subcomm. on Air and Water Pollution of the Senate Comm. on Public Works, 92d Cong., 2d Sess. at 33-34, 260 et seq. (remarks of Senator Thomas Eagleton, Vice-Chairman of the Subcommittee, presiding over the hearings at the time). The Administrator's interpretation of the 1970 Act, as disclosed in his current regulations, appears to be self-contradictory. On the one hand, 40 C.F.R. § 50.2 2(c) (1970) provides: "The promulgation of national primary and secondary air quality standards shall not be considered in any manner to allow significant deterioration of existing air quality in any portion of any State. "In any region where measured or estimated ambient levels of a pollutant are below the levels specified by an applicable secondary standard, the State implementation plan shall set forth a control strategy which shall be adequate to prevent such ambient pollution levels from exceeding such secondary standard." The former regulation appears to reflect a policy of nondegradation of clean air but the latter mirrors the Administrator's doubts as to his authority to impose such a policy upon the states in their implementation plans. In our view, these regulations are irreconcilable and they demonstrate the weakness of the Administrator's position in this case. INITIAL CONCLUSIONS Having considered the stated purpose of the Clean Air Act of 1970, the legislative history of the Act and its predecessor, and the past and present administrative interpretation of the Acts, it is our judgment that the Clean Air Act of 1970 is based in important part on a policy of non-degradation of existing clean air and that 40 C.R.F. § 51.12 (b), in permitting the states to submit plans which allow pollution levels of clean air to rise to the secondary standard level of pollution, is contrary to the legislative policy of the Act and is, therefore, invalid. Accordingly, we hold that plaintiffs have made out a claim for relief. INJUNCTIVE RELIEF Whether this Court may properly grant injunctive relief depends on whether the plaintiffs have met the four criteria set forth in Virginia Petroleum Jobbers Ass'n. v. Federal Power Commission, 104 U.S. App. D.C. 106, 259 F.2d (1958) and such later authorities as A Quaker Action Group v. Hickel, 137 U.S. App D.C. 176, 421 F.2d 111 (1969). First, have the plaintiffs made a strong showing that they are likely to prevail on the merits? It appears to us, from our foregoing discussion, that the plaintiffs have made such a showing in this case. Second, have the plaintiffs shown that without such relief they would suffer irreparable injury? In view of the nature and extent of the air pollution problem, once degradation is permitted the range of resulting damages could well have irreversible effects. Thus, we hold that plaintiffs have made the requisite showing of irreparable injury. Third, will the issuance of a stay cause any significant harm or inconvenience to the Administrator or other parties interested in the proceedings? We are persuaded that no substantial harm or inconvenience will result from our order granting the preliminary injunction. The order is a very limited one. It was submitted by plaintiffs' counsel after consultation with counsel for the Administrator and, in our view, it provides the Administrator with sufficient time and flexbility so that he may exercise his expertise and carry out his duties under the Act with as little inconvenience as possible. Fourth, and finally, where lies the public interest? It seems to us that the public interest in this case strongly supports the legislative policy of clean air and the non-degradation of areas in which clean air exists. CONCLUSION Having separately considered the four criteria for injunctive relief, and having found that plaintiffs have met each of these criteria, we conclude that we can and should grant the requested relief. The order effecting such relief is attached hereto. JUNE 2, 1972. JOHN H. PRATT, U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action Number 1031-72 PRELIMINARY INJUNCTION It appearing to the Court that a Preliminary Injunction pending hearing and determination of plaintiffs' request for a permanent injunction and other relief should be issued because, unless defendant is enjoined from approving portions of state implementation plans permitting significant deterioration of air quality, plaintiffs may suffer immediate and irreparable injury, loss and damage before the determination of this case on the merits, NOW, THEREFORE, IT IS ORDERED, that defendant, his agents, officers, servants, employees, and attorneys, and any persons in active concert or participation with him, be and they are, hereby enjoined until plaintiffs' request for a permanent injunction and other relief has been determined by this Court from, directly or indirectly, approving any state implementation plan under 42 U.S.C. 1857c-5 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. The Administrator shall complete this review of all the state plans within four months of this order. The Administrator, shall, within this four-month period, approve any portion of a state plan which effectively prevents the significant deterioration of existing air quality in any portion of any state, and disapprove any portion of a state plan which fails to effectively prevent the significant deterioration of existing air quality in any portion of any state. The Administrator shall prepare and publish proposed regulations, pursuant to 42 U.S.C. 1857c-5(c) as to any state plan which he finds, on the basis of his review, either permits the significant deterioration of existing air quality in any portion of any state or fails to take the measures necessary to prevent such significant deterioration. Such regulations shall be promulgated within six months of this order. This order shall be stayed until 9:00 A.M., May 31st, 1972. Dated May 30, 1973. J. H. PRATT, Senator MUSKIE. These hearings have been scheduled because of the controversy associated with the implications of a policy which requires that clean air not be degraded. The goal of the Clean Air Act is "to protect and enhance the Nation's air resources." To achieve this goal and protect the quality of air where it is now clean will require a major commitment of resources and ingenuity. New pollution sources will be required to assume the reasonable risks associated with application of innovative pollution control techniques. Environmental agencies will have to make site location decisions to avoid significant deterioration of existing high-quality air. Public hearings and strict regulations through permits must become elements of implementation of this policy, and some facilities may have to sacrifice size to assure air quality protection if technology cannot eliminate unacceptable levels of pollution. We have options available to achieve the goal. What remains to be determined is whether or not we have the courage and the imagination to exercise those options. We have two witnesses this morning. The first is President Laurence I. Moss of the Sierra Club. STATEMENT OF LAURENCE I. MOSS, PRESIDENT, SIERRA CLUB Mr. Moss. Thank you, Mr. Chairman. In order to save time I plan to skip some portions of my written statement in my oral testimony and I hope that you will be able to include the entire statement in the record. Senator MUSKIE. Of course it will be included in the record. (See p. 44.) Mr. Moss. Thank you. In the first part of my statement I recount some of the history of the "no significant deterioration" principle and point out, as you have indicated, Mr. Chairman, that this wasn't a principle or phrase that was invented by the Sierra Club. It, in fact, came from the executive branch and had the approval and endorsement of the Congress. I quote from both the statements made by executive branch agencies with jurisdiction, both now and in the past, along with statements made by the congressional committees framing the legislation during the 1967 and 1970 Clean Air Act approvals and amendments. I won't go into that in my oral testimony because you are all very familiar with it. I just want to assert again that the courts found that Congress intended to prohibit significant deterioration despite the perhaps inartistic manner in which this intent was carried out in that significant deterioration was not specifically listed as one of the criteria in the section of the Clean Air Act amendments dealing with the State implementation plans. But nevertheless the courts felt that on balance no significant deterioration was very much a part of the act and the intent of the Congress. I will start in on page 7 of my statement to discuss the importance, as we see it, of the implementation of no significant deterioration. Senator STAFFORD. Would the witness be willing to indicate if he is going to skip around each time he does what that page number is? Mr. Moss. I would be glad to, Senator. The prohibition against significant deterioration is of enormous importance for protecting air quality. While 20 States supported the prohibition against significant deterioration in the Supreme Court and only 3 opposed it, the States cannot as a practical matter adopt the prohibition individually. If a State adopts the prohibition for itself as it legally is permitted to do by the act, other nearby States will have a major advantage in competing for industry. Nevertheless, since air pollution does not respect State boundaries, the air quality of the State with the prohibition against significant deterioration may still decline because of the pollution coming from its more lenient neighbor. As a result, the State with the tough standard loses twice-both in terms of its employment and tax base and its air quality. It is therefore not surprising that EPA found that while 42 States had taken a position against deterioration of air quality in the statutes and implementation plans, not one had developed an effective enforcement program to prevent significant deterioration from occurring. If I might interject here, the brief filed by the State of New Mexico before the court of appeals is a dramatic exposition of the difficulty that a State wanting to prevent significant deterioration had in trying to get that principle embodied in its State implementation plans with all of the forces put upon it by EPA working in the other direction. EPA's policy, however, did not merely allow significant deterioration to occur in clean air areas but actually encouraged it. The EPA frankly told the Supreme Court that its policy was to move major pollution sources from the cities to rural areas with clean air. This is a policy of spreading evenly air pollution across the country rather than controlling it at its source. Besides the effect on air quality, this policy will mean that more industry will leave our cities than ever before, which in turn will produce additional erosion of the already precarious employment and tax base of our urban areas. Moreover, EPA's policy is directly inconsistent with the policy of Congress as expressed in the 1970 Senate report. |