of their present precarious economic, employment and tax base. Consequently, the cities must continue, as they have been doing, to meet their pollution problems by using stricter emission controls, incentives to reduce use of automobiles and other similar means to reduce pollution. Finally, a prohibition against significant deterioration of air quality will not prevent all development of rural areas. Instead, the phrase significant deterioration obviously allows some flexibility. Moreover, the reduction of existing pollution in these areas will allow new industry to enter. Methods of controlling pollution now exist (and often are being used overseas but not in this country) or are expected to become feasible within a few years which will reduce emissions substantially. However, if industry is allowed to avoid strict pollution controls by simply locating in clean-air areas, these methods are not likely to be developed or used. C. Even if the burden from prohibiting significant deterioration were more severe, it is clear that Congress intended that this burden be sustained in order to protect and improve air quality. The sponsors of the 1970 Act repeatedly noted that substantial burdens and costs were worth bearing. The cost of maintaining air quality in clean-air areas is far less severe than of reducing pollution in our cities. D. Congress specifically rejected most of petitioner's policy arguments. It decided to protect air quality all over the country and not just to reduce pollution in dirtyair areas. It explicitly determined to prevent pollution in clean-air areas from starting rather than waiting until a serious problem had occurred. It specifically decided that practical means did exist to prevent significant deterioration of air quality. And it found that site selection must be used to prevent significant deterioration of clean-air areas instead of deliberately to locate pollution sources in them. ARGUMENT There are three kinds of air-quality areas in the country for purposes of this suit: (1) Areas where the air quality is worse than the secondary standards (the "dirty-air" areas). Stateimplementation plans are clearly required by the Clean Air Act to reduce air pollution in these areas to the secondary standards. (2) Areas where the air quality is approximately equal to the secondary standards. State-implementation plans are clearly required by the Clean Air Act to maintain present air quality in these areas. (3) Areas where air quality is better than the secondary standards (the "clean-air areas"). The Administrator, under 40 C.F.R. 51.12 (b), will approve state plans which permit the significant deterioration of air in these areas.5 This suit is not concerned in any way with the first two kinds of areas. Instead, it involves only the third category of area where the quality of air is cleaner than the secondary standards promulgated by the Environmental Protection Agency. Areas of the country without heavy industry or dense population generally have air which is considerably better than all or at least some of the secondary standards. This is true of most of the 5 This analysis applies separately to each of the six pollutants as to which the Administrator has established standards. 40 C.F.R. 50.4-.11; 36 Fed. Reg. 22384-22385. In other words, the same area may have air pollution exceeding the secondary standard as to particulates which must be reduced to that standard; a level of nitrogen oxides which is equal to the secondary standard and therefore cannot be increased; and a level of sulfur oxides which is better than the secondary standard and which, under 40 C.F.R. 51.12 (b), will be allowed to increase to the secondary standard. western United States and of most rural areas throughout the country. 40 C.F.R. 51.12 (b), promulgated by the Administrator, provides that the States may permit the deterioration of air quality in these clean-air areas as long as the air does not become worse than secondary standards. This will permit the deterioration of air quality over most of the country so air quality is the same from coast to coast-the same in the Rocky Mountains and the Blue Ridge as in Boston, Akron, Detroit, and Pittsburgh. It will permit an increase in the total amount of air pollution in the country. This increase in air pollution under 40 C.F.R. 51.12 (b) is not merely theoretical. Such deterioration is already occurring and existing plans for development show that massive deterioration of air quality will result. The issue in this case is whether the Clean Air Act permits, pursuant to 40 C.F.R. 51.12 (b), these substantial increases in air pollution in the United States. 6 EPA has found that of the 247 air-quality control regions, 218 have less carbon monoxide, 200 less nitrogen oxide, and 146 less sulfur oxides than the secondary standards. EPA, Background Information, State Air Implementation Plans, p. 3 (May 1972). Thus, it is clear that most regions have air quality better than one or more secondary standards. Even as to those regions which EPA has found exceed all six secondary standards, generally this means that the air in some part of the region exceeds these standards but that the air in other, often larger, portions of the region is better than some or all of the secondary standards. In these large cities and a number of others, the pollution levels for sulfur oxides and particulates are near or even below the secondary standards. Bisselle, et al., National Environmental Indices: Air Quality and Outdoor Recreation, prepared for the Council on Environmental Quality, pp. 71-79 (1972). I THE CLEAN AIR ACT FORBIDS THE ADMINIS- A. The Plain Language of the Statute Prohibits the 42 U.S.C. 1857 (b) (1) states as the first of the four purposes of the Clean Air Act: (1) 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; "Protect" means "to keep from harm, attack or injury; to guard." American Heritage Dictionary of the English Language, p. 1051 (1969). "Enhance" means "to increase or make greater, as in value, cost, beauty, or reputation." Id. at 434. Thus, the Act was specifically designed to ensure that (1) air would not be further harmed or injured by lowering its quality; and (2) it would be improved. This obvious reading of the ordinary English words in the statute is consistent with the title, the Clean Air Act, which was given by Congress to the 1970 amendments to the Air Quality Act of 1967. 84 Stat. 1705.8 8 Several amici curiae briefs supporting petitioner suggest that 42 U.S.C. 1857 (b) (1) requires balancing the maintenance and improvement of air quality and economic costs. They rest this argument on the following phrase in that Section: "promote * * * the productive capacity of its population." They also note that 42 U.S.C. 1857 (b) (1) states that the Act is designed "to promote the public health and welfare" and that "welfare" is defined by 42 U.S.C. 1857h (h) as including "economic values." However, 42 U.S.C. 1857 (b) (1) makes clear that the purpose of the Act is "to protect and enhance the quality of the Nation's air resources." The remainder of the paragraph is introduced by "so as to" which makes clear that the reason for protecting and en It is of course well established that, where the purpose of Congress is clear, "that purpose must be upheld." Hudson Distributors, Inc. v. Eli Lilly & Co., 377 U.S. 386, 395 (1964). Accord, e.g., United States v. Congress of Industrial Organization, 335 U.S. 105, 112 (1948). In discovering the purpose of the Congress, the courts look to earlier history (Territory of Hawaii v. Mankichi, 198 U.S. 197, 211 (1903)), previous related legislation (United States v. Katz, 271 U.S. 354, 357 (1926); Burnet v. Harmel, 287 U.S. 103, 108 (1932)), the overall legislative scheme or plan (United States v. Katz, 272 U.S. 354, 357 (1926)), the evil the statute was designed to remedy (Rector of Holy Trinity Church v. United States, 143 U.S. 457, 463, 465 (1892)), the spirit of the legislation (United States v. Guaranty Trust Co., 280 U.S. 478, 485 (1930)), and its legislative history (FTC v. Mandel Bros., Inc., 359 U.S. 385, 388 (1959); Commissioner v. Bilder, 369 U.S. 499, 503-504 (1962)). As Mr. Justice Holmes stated, on circuit, in Johnson v. United States, 163 Fed. 30, 32 (C.A. 1, 1908): hancing air quality is "to promote the public health and welfare and the productive capacity of its population." Similarly, 42 U.S.C. 1857h (h) defines "effects on welfare" as including "effects on economic values" as part of a list of other items which the Act is designed to protect. Thus, these provisions mean that Congress believes that the protection and enhancement of air quality will lead to better public health and welfare and increased productive capacity. In other words, Congress has said that if people do not have emphysema and trees do not die as a result of air pollution, the country is more productive. These provisions plainly do not make consideration of economic cost an independent purpose of the Act which can be used to justify weakening control of air pollution. Even if the amici's reading of 42 U.S.C. 1857 (b) (1) were more plausible, we will see below that the legislative and administrative history of this sentence demonstrates that it was intended to prohibit significant deterioration of air quality in clean-air areas. Not a single sentence of legislative or administrative history of 42 U.S.C. 1857 (b) (1) supports the amici's position. It is significant that even petitioner apparently does not support the amici's reading of this section. |