Miscellaneous: 116 Cong. Res.: p. 42386 37 Fed. Reg. 23836. Page 13 16 5 Hearings on S. 3229, S. 3466, S. 3546, Sub- S. 3546, 91st Cong., 2d Sess. 15 7 7 7 13, 15, 16, 17, 18 S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970). iii In the Supreme Court of the United States OCTOBER TERM, 1972 No. 72-804 WILLIAM D. RUCKELSHAUS, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, PETITIONER v. SIERRA CLUB, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT of APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF FOR THE PETITIONER OPINIONS BELOW The opinion of the district court (A. 27-33) is reported at 344 F. Supp. 253. The court of appeals affirmed on the basis of the district court's opinion (A. 45). JURISDICTION The judgment of the court of appeals was entered on November 1, 1972 (A. 45). The petition for a writ of certiorari was filed on December 1, 1972, and was granted on January 15, 1973. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Clean Air Act Amendments of 1970, which provide that the Administrator of the Environmental Protection Agency "shall approve" state plans for the implementation of federal air quality standards which enforce such standards within the State, require him to approve such plans, or whether he may approve only state plans which, in addition, will effectively prevent significant deterioration of existing air quality in any portion of any State. STATUTE INVOLVED The Clean Air Act, 42 U.S.C. 1857, et seq., is set forth in relevant part in the Appendix, infra.1 STATEMENT Section 109 (a) of the Clean Air Act Amendments of 1970 directs the Administrator of the Environmental Protection Agency to establish national primary and national secondary air quality standards. National primary air quality standards are "ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator * * * are requisite to protect the public health." Section 109 (b) (1). A national secondary ambient air quality standard is “a level of air quality the attainment and maintenance of which in the judgment of the Administrator * is requisite to protect the public welfare from any known or anticipated adverse effects asso * 1 Section references to the Clean Air Act will be used for convenience; both Section numbers and Code citations appear in the Appendix. ciated with the presence of [each] air pollutant [for which criteria have been established] in the ambient air." Section 109 (b) (2). The "public welfare" includes "effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, hazards to transportation, as well as effects on economic values and on personal comfort and well-being." Section 302 (h). The Act requires each State to submit to the Administrator State implementation plans for "implementation, maintenance, and enforcement" of both the primary and secondary standards for every portion of the State within nine months after the Administrator has promulgated the national primary and secondary standards. Section 110(a)(1). The Administrator must, within four months after submission of a state implementation plan, approve or disapprove the plan. Section 110 (a) (2). Section 110 (a) (2) explicitly provides that the Administrator "shall approve" each submitted state plan, adopted after reasonable notice and hearing, which meets eight specified criteria. The first requirement is that "it provides for the attainment" of primary standards "as expeditiously as practicable" and "specifies a reasonable time at which" secondary standards will be attained. If the state implementation plan does not meet these requirements, the Administrator is required to disapprove the plan and prepare regu2 Under Section 110(a)(2)(A)-(H), each plan must also contain: (1) emission limitations and other measures necessary to lations setting forth the implementation plan for the State. Section 110(c) (2). The Administrator promulgated national primary and secondary ambient air quality standards on April 30, 1971. 36 Fed. Reg. 8186, 42 C.F.R. 410.3 The States were thus required to submit their implementation plans to the Administrator by January 31, 1972, and the Administrator was required to approve or disapprove these plans by May 31, 1972. On May 24, 1972, this suit was filed, seeking a declaratory judgment that approval by the Administrator of any state implementation plans which allow for any signficant deterioration of existing air quality would violate the Clean Air Act and asking the court to direct the Administrator to disapprove such plans insofar as they do not prevent the significant deterioration of existing air quality in any portion of any State. The district court concluded that "the Clean Air Act of 1970 is based in important part on a policy of non-degradation of existing clean air" (A. 32). insure attainment and maintenance of the primary and secondary standards; (2) provisions for establishment and operation of devices and techniques to monitor and analyze air quality; (3) procedures for review of the location of new sources; (4) provisions for intergovernmental cooperation; (5) provisions for adequate state support, private compliance, and reporting; (6) motor vehicle compliance inspection requirements; and (7) provisions for revision. 3 Requirements for preparation, adoption and submission of implementation plans were adopted on August 14, 1971. 36 Fed. Reg. 15486, 42 C.F.R. 420. Both regulations were repromulgated on November 25, 1971, so as to appear in the same place in the Code of Federal Regulations. 40 C.F.R. 50, 51. |