NONDEGRADATION POLICY OF THE CLEAN AIR ACT TUESDAY, JULY 24, 1973 U.S. SENATE, COMMITTEE ON PUBLIC WORKS, SUBCOMMITTEE ON AIR AND WATER POLLUTION, Washington, D.C. The subcommittee met at 10 a.m., pursuant to call, in room 4200, Dirksen Office Building, Hon. Edmund S. Muskie (chairman of the subcommittee) presiding. Present: Senators Muskie, Randolph, Clark, McClure, and Domenici. OPENING STATEMENT OF HON. EDMUND S. MUSKIE, U.S. SENATOR FROM THE STATE OF MAINE Senator MUSKIE. The subcommittee will be in order. I have a brief opening statement to set the context of this hearing. Today, the Subcommittee on Air and Water Pollution opens hearings on yet another controversial aspect of Federal clean air lawthe policy of nondegradation. This policy was first articulated in Federal water pollution law in 1965 and was incorporated into the 1967 Air Quality Act. It was not altered in the 1970 clean air amendments. The Environmental Protection Agency's predecessor for air pollution, the National Air Pollution Control Administration defined this policy in guidelines in 1969. EPA initially proposed a nondegradation policy in guidelines for air quality implementation plans in 1971. Subsequently, EPA deleted this policy from those guidelines and a court challenge ensued. The courts have upheld the intent of the act. Nondegradation is national policy. At this point in the record I would like to insert the court opinion, if there is no objection. [The opinion referred to follows:] U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA SIERRA CLUB ET AL., PLAINTIFFS v. WILLIAM D. RUCKELSHAUS, Defendant Civil Action No. 1031-72 MEMORANDUM OPINION Initially, this matter came before the Court on plaintiffs' motion for temporary restraining order wherein they sought to enjoin the Administrator of the Environmental Protection Agency from approving certain portions of state air pollution control plans-implementing the national primary and secondary standards— which 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 popu lation." 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. |