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Delaware Citizens for Clean Air, Inc., a Delawarecorporation, Petitioner, v. Administrator U. S. Environmental Protection Agency Andwilliam D. Ruckelshaus
United States Court of Appeals, Third Circuit. - 480 F.2d 972
Argued March 8, 1973.Decided June 21, 1973
Jacob Kreshtool, Bader, Dorsey & Kreshtool, Wilmington, Del., for petitioner.
Kent Frizzell, Asst. Atty. Gen., and Edmund B. Clark, Martin Green and James R. Walpole, Dept. of Justice, Land and Natural Resources Division, Washington, D. C., for respondents.
Before FORMAN, VAN DUSEN and GIBBONS, Circuit Judges.
VAN DUSEN, Circuit Judge.
Pursuant to Sec. 307(b)(1) of the Clean Air Act, 42 U.S.C. Sec. 1857h-5(b)(1) (1970),1 Delaware Citizens for Clean Air, Inc. (DCCA) here challenges the Environmental Protection Agency's (EPA) approval of portions of Delaware's implementation plan. The challenge is on the merits. We stress this point because all the decided cases we have been able to locate either deal with strictly procedural attacks or dispose of substantive attacks on procedural grounds. See Duquesne Light Co. v. EPA, 481 F.2d 1, Nos. 72-1542 and 72-1543 (3d Cir., 1973); Utah International, Inc. v. EPA, 478 F.2d 126 (10th Cir., 1973); Appalachian Power Co. v. EPA, 477 F.2d 495 Nos. 72-1733, 72-1734, 72-1776 (4th Cir., 1973); Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972). Because of the unfamiliar and complex technical issues involved, we have approached this case with great "diffidence" and judicial restraint, see International Harvester Co. v. Ruckelshaus, (D.C.Cir., 1973).2
The legislative plan of the Clean Air Act was extensively set out by Judge Adams in Duquesne Light Co. v. EPA, supra, at 2-4 of 481 F.2d, and so it is unnecessary to discuss it in detail here.3 Delaware, like all states, was required to submit to the EPA an implementation plan which would meet a variety of federal standards regarding the regulation of air pollution. Delaware held a federally mandated public hearing on November 29, 1971, and submitted its plan on January 28, 1972. On May 31, 1972, the EPA approved some parts of the plan and disapproved others. 37 Fed.Reg. 10842, 10856-57 (1972). DCCA filed its petition for review in June 1972. DCCA challenges EPA's approval of those sections of the Delaware plan dealing with the control of sulfur dioxide and nitrogen dioxide.
The EPA's authority to prescribe regulations for sulfur dioxide and nitrogen dioxide is based on Clean Air Act Sec. 109, 42 U.S.C. Sec. 1857c-4 (1970). The statute orders the EPA to promulgate what it calls national primary and secondary ambient air quality standards for substances which have been determined to be air pollutants. Primary standards are based on the protection of the public health; the secondary standards are based on the protection of the public welfare, which includes factors beyond merely the physical health of the populace. The primary and secondary standards promulgated by the EPA for sulfur dioxide appear, respectively, in 40 C.F.R. Sec. 50.4 and Sec. 50.5 (1972). The standard for nitrogen dioxide, which is both primary and secondary, is in 40 C.F.R. Sec. 50.11 (1972). The EPA has also promulgated guidelines for the control strategies that should appear in state implementation plans where the ambient levels of a pollutant exceed the applicable standard. See 40 C.F.R. Sec. 51.13 (1972) (sulfur dioxide) and Sec. 51.14 (1972) (nitrogen dioxide).
The thrust of DCCA's petition is that the Delaware plan does not (1) meet the statutory deadline for attaining the nitrogen dioxide standard and (2) contain various measures, asserted to be made compulsory by the statute, for attaining the nitrogen dioxide standard and for maintaining it and the primary and secondary sulfur dioxide standards. Before dealing with DCCA's arguments more specifically, however, we will describe certain developments that make much of this case moot.
Delaware's plan itself seems to indicate that it is inadequate to attain the nitrogen dioxide standard.4 Nevertheless, when EPA on May 31, 1972, approved the nitrogen dioxide control strategy it proposed an attainment date of May 31, 1975,5 for the Metropolitan Philadelphia Interstate Air Quality Control Region.6 The EPA also proposed the same date for the attainment of the primary and secondary sulfur dioxide standards.7
Whatever the dates were as of May 31, 1972, they were changed after the filing of the petition in this matter by the publication on July 27, 1972, of new attainment dates.8 This new schedule, whose "dates reflect the information presented in the Delaware Plan,"9 gives January 1972 for the primary sulfur dioxide standard; January 1973 for the secondary sulfur dioxide standard; and January 1974 for the nitrogen dioxide standard. Quite recently, on May 23, 1973, the EPA published approval of a revision to the plan, changing the attainment date for the secondary sulfur dioxide standard from January 1973 to January 1974.10 This revision was based on information submitted by Delaware following notice and a public hearing.
*****
* * *
Sec. 1857h-5(b)(1) provides:
". . . A petition for review of the Administrator's action in approving or promulgating any implementation plan under section 1857c-5 . . . may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval. . . ."
This statute does not set down any standard for review of the EPA's action.
Unfortunately, the court's deliberations were not greatly aided by the sparse briefs submitted by both DCCA and the EPA. Discussion of the scope of judicial review was most abbreviated, references to the long and technical record were rare, and no mention was made of the various significant changes made in the Delaware plan subsequent to May 31, 1972
For additional description, see Appalachian Power Co. v. EPA, supra; Note, Clean Air Act Amendments of 1970; A Congressional Cosmetic, 61 Geo.L.J. 153 (1972)
"The 14 percent reduction achieved does not provide the 17 percent reduction needed." R. 437. It is noted in the plan that both the need for, or the potential success of, the Delaware control strategy are very hard to estimate because the strategy is based on very limited data. R. 438-39
See 37 Fed.Reg. 10857 (1972). In the release accompanying the approval, the EPA stated that, if necessary, it would promulgate attainment dates meeting the requirements of the Clean Air Act, see 37 Fed.Reg. 10843 (1972), and this is apparently what it did here. The factual basis for this proposed date is not at all clear, but, given the subsequent developments noted in the text, it is necessary for this court to consider the propriety of the proposed date
The portion of this region in Delaware consists of New Castle County. The rest of Delaware is included in the Southern Delaware Intrastate Air Quality Control Region, whose air is apparently much cleaner and which is consequently not directly involved in the current litigation
37 Fed.Reg. 10857 (1972)
37 Fed.Reg. 15082 (1972)
Id, which includes, inter alia, this language:
"Sec. 52.420 Identification of plan.
"(c) Supplemental information was submitted on February 11, March 10, May 5, June 2, and June 5, 1972, by the State of Delaware, Department of Natural Resources and Environmental Control.
"Sec. 52.428 Attainment dates for national standards.
"The following table presents the latest dates by which the national standards are to be attained. These dates reflect the information presented in the Delaware plan. . . ."
38 Fed.Reg. 13561-62 (1973)
Natural Resources Defense Council, Inc. v. EPA, 475 F.2d 968 (D.C.Cir.1973)
38 Fed.Reg. 12920 (1973)
38 Fed.Reg. 11355 (1973)
As mentioned above, supra note 2, the parties have not commented upon any of the revisions of the attainment dates of the Delaware plan. Fortunately, these revisions seem to speak for themselves
Presumably DCCA can appeal the EPA approval of this revision
To the best of our knowledge, all information relating to the January 1974 attainment date for the nitrogen dioxide standard is in the record before us
Since the Delaware plan as it now stands will attain the nitrogen dioxide standard, it is unnecessary for this court to consider any possible significance in the difference between 40 C.F.R. Sec. 50.11 (1972), which sets the standard at "100 micrograms per cubic meter (0.05 ppm)-annual arithmetic mean," and 40 C.F.R. Sec. 51.14(c)(3) (1972), which requires of implementation plans only that they "shall provide for the degree of nitrogen oxides emission reduction attainable through the application of reasonably available control technology."
We note that in the case before us the parties do not raise any due process questions, at least not any such questions which arose out of the EPA's approval of the nitrogen dioxide control strategy
This regulation was at the time numbered XXII. See R. 1458. It was renumbered and appears in the present Delaware plan as XII. See R. 551
See note 4, supra
Also, as noted above at 976, the EPA action is entitled to "a presumption of regularity," 401 U.S. at 415, 91 S.Ct. 814
We note that the statute would require land-use and transportation controls if they were necessary to insure maintenance of the standard. We, of course, pass no judgment upon whether such controls are required in the Delaware plan. It is arguable that land-use and transportation controls are mandated by the statute both for attainment and for maintenance. The agency charged with administration of the statute, however, apparently construes it as not mandating land-use and transportation controls for attainment if other measures will suffice. In this instance we defer to the expertise of the agency