TRAIN v. NATURAL RESOURCES DEF. COUNCIL

Transcript: 

Argument of Gerald P. Norton

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1742, Train against Natural Resources.

Mr. Norton, you may proceed whenever you're ready.

Mr. Norton: Mr. Chief Justice and may it please the Court.

This case is here on writ of certiorari to the United States Court of Appeals for the Fifth Circuit to review the judgment of that court, reversing the Environmental Protection Agency's approval of a implementation plans submitted by the State of Georgia pursuant to the Clean Air Act.

The case is before the Court of Appeals on a petition for review, direct review pursuant to that Act filed by Natural Resources Defense Council (NRDC) and others.

The Court of Appeals set aside the approval on several grounds, only one of which is before the Court today.

That ruling concerns the substantive standards and the procedural requirements governing EPA's consideration of a variance from a requirement of a state implementation plan.

The Court of Appeals accepted NRDC's argument that all variances regardless of circumstances must be treated as involving postponements plan requirements, and therefore subject to the provisions of Section 110 (f) of the Act.

EPA disagrees and has from the outset, construed the Act as authorizing it to approve variances in at least some circumstances without reference to Section 110 (f).

EPA's position has been upheld by the other four Court of Appeals to consider the question.

Justice Byron R. White: You're going to tell us what those circumstances are?

Mr. Norton: That's right.

The -- both the circumstances and the distinctions, the differences that follow from these two approaches because they are substantial.

The case arises under the 1970 Amendments to the Act which substantially revert the Act and established a very wide-ranging, complex, and innovative program to try to deal with air pollution, and imposed on newly graded EPA in the states a variety of new duties to be satisfied within a fairly unusual system of statutory deadlines.

Before discussing the particular facts concerning the Georgia plan, I think it would be useful if I review the statutory provisions involved here and with some care.

The case is principally concerned with the program under the Act to try to deal, control and reduced air pollution resulting from emissions from existing stationary sources.

I'm not dealing with motor vehicles or other matters.

Section 109 of the Act required that EPA promulgate what are called national air quality standards for certain pollutants.

The so-called primary standards under the Act which are the ones of pertinence today where to be set by EPA at a level requisite to protect the public health within adequate margin of safety.

I'll refer to these as the national standards.

These standards had to be issued by EPA after rulemaking proceedings within 120 days from enactment of the Act in December 1970.

They're subject to judicial review and are also subject to revision by EPA, but the same time, Section 107 of the Act required EPA within 90 days of enactment to consult with the states and to designate air quality control regions covering the entire country.

This could be either entirely within the state or they could cross state lines.

But the states also have important obligations and responsibilities under the Act consistent with the findings of Congress that it was a primary responsibility of state and local governments to deal with air pollution at its source.

Section 107 provides that each state shall have the primary responsibility for assuring air quality within the state by submitting an implementation plan which would show how that state would attain and maintain the national standards within each region, air quality region in the state.

More specifically, Section 110 (a) requires that each state within nine months of EPA's promulgation of a national standard hold public hearings, adopt and submit to EPA such an implementation plan.

Under Section 110 (a), EPA is required to approve that plan within four months upon determining that it satisfies a test set forth in the Act.

One is of principal interest here, and that is that the plan must provide for the attainment of national standards as expeditiously as possible, but in no case later than three years from EPA's approval of the plan.

We refer to this as the attainment date.

Attainment date, the date of attainment --

Justice Potter Stewart: Attainment date.

Mr. Norton: -- of national standards.

The plan is also to include emission limitations, compliance schedules and other measures necessary to attain and thereafter maintain national standards.

Congress anticipated that one approach of state could take in its plan was to include emission limitations which would be effective at or near the attainment date, which would give the sources affected a lead time within which to try to comply with them.

Now as the effective date neared, if it seemed that a source might still not be able to comply, a remedy was provided under Section 110 (f), one of the provisions involved here.

That Section provides that prior to the date that a source of emissions is required to comply with any requirement of a plan, the Governor of the state can submit to EPA a request for a postponement of the applicability of that requirement to that source for one year.

EPA is required to approve such a request if it makes four determinations.

First, that good faith efforts had been made to comply.

Second, that the inability to do so was because the necessary technology or methods were unavailable.

Third, that interim measures had been taken to reduce the impact of the source on public health. And fourth, that the continued operation of the source is essential to national security or to public health and welfare.

Such a determination by EPA --

Justice Byron R. White: Is that to be made on a hearing?

Mr. Norton: Exactly.

I just -- must be made after a formal public hearing held by EPA itself, and must be accompanied by detailed findings and reasons.

Justice Byron R. White: Made on the record.

Mr. Norton: Made on the record, subject to adjudicative proceedings of the EPA.

Justice Potter Stewart: That is postponement?

Mr. Norton: That is for postponement and it subject to judicial review.

Now, Congress recognized that the available knowledge of air pollution problems and the resources of state and the federal agencies in 1970 were not necessarily equal to the task, of striking the most refined balanced in the formulation of these plans, accordingly, provided for research, training and funding programs.

In addition, lest these initial hastily reached judgments or possibly misjudgments be immutably cast and steel, the Act also provides for revision of the state plans in Section 110 (a).

A revision could be approved by EPA only if the state is held the public hearing on it, and if the revision like the original plan itself complies with the requirements of Section 110 (a) for plans, most significantly, the revision like the plan must provide for attainment of national standards within the three-year period.

If it does so, EPA must approve it.

Upon approval by EPA, the state plan becomes the applicable plan for the purposes of the Act.

Requirements of the plan are then enforceable not only by the states, but also by EPA and through citizen suits.

Now without a revision of the plan or a postponement, a source that does not comply with the requirement of a plan once it becomes effective would be subject to an enforcement action.

Now to assist the states in this ambitious and cooperative federal state venture, EPA promulgated detailed guidelines for the states to use in formulating their plans, covering both technical and procedural matters set forth in 40 CFR Part 51.

Now, EPA recognized that many states were not prepared at that point to engage in the sophisticated tailoring of the requirements of their plans to the variety of situations presented in the various regions within the state.

Therefore, the states where initially permitted to develop emission limitations and other requirements more like a butcher than a surgeon if you will.

For example, a state could determine what was needed to bring the worst source in a region into compliance or to permit attainment of national standards in view of that source.

And then to generalize those requirements and apply them to all sources within that region or to other regions, such approaches, and this is not the only one, built in to plans a degree of overkill in that many sources would be required to comply with the requirements which were not necessary to attainment of national standards.

Now if a national standard were not being met in a region in 1972, the practicability of attainment within the three-year period or sooner might well be governed by the ability to reduce or control emissions from a single source or a limited number of sources, power plant or a steel mill or smelter refinery, whatever.

In a period of up to the full three years might be required in order to develop a necessary technology, acquire the equipment, install it and so forth, obtain regulatory approvals.

If such sources could not attain or could not comply and attain national standards prior to the three-year period, then that became the attainment date for those states.

This is mid-1975.

There's also provision for extension of those dates in some circumstances, but they're not presently of great moment.

Now where attainment prior to 1975 was not feasible for these reasons, a state still had some choice as to when to make the requirements of its plan generally effective.

It could make them effective near the attainment date or sooner or perhaps immediately, as it might well be feasible for many sources to comply in a shorter period of time, even though such compliance was not necessary in order to attain national standards.

There's no dispute that the Act permits and indeed encourages these efforts which go beyond the minimum requirements to attain standards.

Now, EPA anticipated that there would be inevitably a need for some provision for variances, exemptions, or deferrals, either because the state adopted plan requirements that were effective too soon or overly strict or unrealistically ambitious or for other reasons or because of problems that were simply not anticipated in 1970, 1971, and 1972 when the plans were developed, the energy crisis, the unavailability of equipment and the capital problems of various companies being good examples.

Therefore, EPA concluded that where a variance would not interfere with the timely attainment or the maintenance of national standards, it need not be subject to the postponement procedures of 110 (f), and instead could be treated as a revision of a plan.

EPA included this interpretation in its proposed guidelines which published and after receiving comments by NRDC and hundreds of others, none of which criticize this interpretation.

EPA included this interpretation its final guidelines.

Now, while EPA was considering the plans submitted by that states on the basis of these guidelines, NRDC even agreed in congressional hearings that this interpretation was correct as we have noted at page 31 of our brief.

Having no reason to question its interpretation, EPA went ahead and approve plans containing variance procedures which did not necessarily require resort to the postponement procedures, and this --

Justice Byron R. White: Those approvals were on the assumption that limited variances would take the state or any stationary source beyond the attainment date.

Mr. Norton: Well, we'd not interfere with either attainment of those standards or maintenance of them after the attainment date.

NRDC then changes position and challenge several of those approvals, let me say this problem arises --

Justice Byron R. White: Postponement of this -- of the -- under the state plan not a postponement of the attainment date such as 110 (f) which still permit.

Mr. Norton: Well, 110 (f) would permit the postponement of the applicability of a requirement of a state plan to a source.

It might well as a result make attainment or maintenance of national standards impossible if these were the worst source in the region, and it got a one-year postponement.

It might mean that attainment was not feasible.

Justice Byron R. White: But 110 (f) I take it, would if you go to the 110 (f) procedures permit the state to postpone compliance beyond the attainment date --

Mr. Norton: As to particular sources.

Justice Byron R. White: Yes, yes.

Mr. Norton: It doesn't postpone the attainment date itself.

Justice Byron R. White: But your -- the agency's interpretation would not -- unless you comply with 110 (f), you couldn't go beyond the attainment date.

Mr. Norton: Well, the original interpretation was not limited to the period prior to attainment.

If a variance would not results in or interfere with maintenance of a national standard after it had been obtained, it could still be treated under the revision procedures.

Justice Byron R. White: -- carried it beyond the attainment date.

Mr. Norton: That's right because it wasn't interfering with --

Justice Byron R. White: Well, but then you change your mind because of the ports.

Mr. Norton: Well, I'll get to that, there was a change.

By the time NRDC changed its position however, the EPA's interpretation had been relied on by the states in developing their plans by EPA and approving them, and by the various sources in determining whether to challenge the state plans or to seek variances.

With this background, I'll turn to the specific facts.

In April 1971, EPA promulgated national standards for some six pollutants.

Georgia submitted its implementation plan in January 1972, having developed to the intervening nine months.

In Georgia like all but five states, there was at least one air quality region in which the national standards for one or more of the pollutants was not being met as of 1972.

And like all but three of the states were at least some of the standards where not being met in some region, Georgia concluded that it was not practicable to attain those national standards until the end of the three-year period, mid-1975 should note that since EPA has approved those attainment dates, we must accept here, the fact that it was simply not practicable to attain national standards any sooner.

Now, like the majority of states, Georgia made many of its initial limitations effective immediately or much sooner than the actual attainment date.

It either gave no lead time or a limited lead time.

As a result, compliance problems where inevitable and Georgia adopted the variance statute which is an issue here.

EPA approved the Georgia plan, including the variance statute in mid-1972.

Now as I mentioned, Section 110 (a) contemplated that the plans submitted by the states would include compliance schedules which would be adopted to assure that sources which in 1972 were not in compliance with the requirements needed for attainment of national standards would be by the attainment date.

This is whether or not the requirements were immediately effective or not, and they could either cover categories of sources or individual sources.

If they had been submitted as part of the original plans, they would have been subject to approval without reference to 110 (f), and subject to the standards of Section 110 (a).

However, because of the enormous demands imposed upon must states by the task of preparing the implementation plan, Georgia like most states, simply was unable to complete the work of developing compliance schedules completely and submitting to EPA with its plan a full array of such schedules.

As a result, after the state submitted their plans and indeed after EPA had approved them, they continued working on the development of compliance schedules and submitted them to EPA.

They submitted them as revisions of the plans that had already been approved, not as postponement request.

There are some 800 of these in Georgia.

They're total of 3,000 in the states in the Fifth Circuit, and many more in the other states.

Many of these variance request compliance schedules have already been approved by EPA.

I should note, there's no reason to believe that this process has resulted in any abuse or undermining of the purpose of the Act because they would not be approved unless they would not interfere with timely attainment of national standards in many or limited periods of time which have already elapsed.

So in practical effect, the basic question here is whether such schedules and variances could only be approved by EPA in accordance with the procedures of Section 110 (f), or whether EPA properly construed its Act as permitting it to treat them as plan revisions.

That's important to emphasize in view of NRDC's claims that the case does not involved merely attempts to extend the deadlines of previously negotiated compliance schedules, but possible rare exceptions, these variances and compliance schedules are the initial submissions.

They are not kind of going around for a second bite of the apple.

NRDC claims and the Court of Appeals held that the only procedure available for EPA's consideration of these belatedly submitted compliance schedules and variances is the postponement procedure of Section 110 (f).

They would apparently require compliance with 110 (f), even if the variance would not interfere with timely obtainment of national standards, and even if the problems calling for the compliance are result of mechanical breakdowns or tornados or whatever.

Now, they assume that 110 (f) is always an available alternative.

But as I noted earlier, by its terms, its available only prior to the time that a source is required to comply with the requirement of a state plan.

In the states that imposed immediately effective requirements, without a revision of those requirements, 110 (f) would not appear to be available at all, even if compliance was unreasonable, unnecessary, or severe hardship would require closing the plant down.

Now, the Fifth Circuit's position has been decisively rejected by the other Courts of Appeals.

In the cases we've cited in our brief, the First Circuit followed by the Eighth and the Second held that 110 (f) is the exclusive procedure for considering variances only in the period subsequent to attainment of national standards.

And even then, the First Circuit held that limited variances could be granted without reference to 110 (f) to account for mechanical breakdowns, acts of God and the like.

Now as for the pre-attainment period of principal concern here, these courts held that compliance with 110 (f) was not necessary, unless a variance would interfere with timely attainment of national standards.

Of course, only rarely in the pre-attainment period would a variance threaten national standards because it's going to run out before the deadline comes, and since air -- even if a source work producing emission above the standards, once its stop in compliance, the air disperses and value compliance state, it would be at national standards.

Now, these courts found such authority for variances without reference to 110 (f) implicit in the very structure of the Act, and the essential need of flexibility.

Having had its authority sustained as to the most important period, the pre-attainment period, EPA did not seek review by this Court of the limited adverse aspects of those rulings.

Then in September 1974, EPA revised its regulations to accord with the First Circuit ruling, so as to disapprove all state plans insofar as they authorize variances, including Georgia's and post-attainment period beyond the limited range permitted by the First Circuit.

Subsequently, the Ninth Circuit held that EPA could approve what it called minor variances, those which would not interfere with timely attainment or maintenance of national standards at any time, even after the attainment date.

Now without reference to Section 110 (f), they found this authority necessarily implicit in the Act, and like the First Circuit but unlike the first, so no reason for curtailing that essential flexibility of the attainment date.

Justice Harry A. Blackmun: Does the Government show a preference for the First Circuit to the Ninth Circuit's?

Mr. Norton: Well, we show a preference for EPA's original interpretation which is to root this flexibility in the explicit revision procedures of the Act.

We don't have any fundamental disagreement with the Ninth Circuit's approach as suggested by some of the amici that this flexibility, this provision is implicit in the Act.

But as between the First Circuit and the Fifth, we prefer the Fifth as we've indicated in our reply brief.

Justice Harry A. Blackmun: But what about the Ninth?

Mr. Norton: Well, as between the Ninth and the Fifth or the First, we prefer the Ninth.

The case is here only as to the pre-attainment period.

So, there's no significant difference between the Ninth and the First in that regard.

Justice William H. Rehnquist: I can see you preferred the Fifth to the First?

Mr. Norton: No, the First to the Fifth given that choice.

Justice Potter Stewart: This is when you don't like --

Mr. Norton: We don't like that at all.

Justice Potter Stewart: -- that means you're here?

Mr. Norton: That's right.

We contend that EPA is interpretation of the Act was reasonable and should be sustained.

As the briefs and the amici show that that interpretation's been heavily relied upon by the states and by the sources of emissions --

Justice Byron R. White: Mr. Norton, just assume like you know are also now as well as any time whether the revision could extend beyond the attainment date.

Mr. Norton: Well, I'm not going to -- yes, play very rapid.

Of course, we'd like to know that now, the case -- the question may come up in the Ninth Circuit case.

Justice Byron R. White: That's not going to be -- I take it prospectively your position.

Mr. Norton: Well, the agency hasn't formally reacted to the Ninth Circuit --

Justice Byron R. White: Well, you're going to have to agree with some one court or the other --

Mr. Norton: But we --

Chief Justice Warren E. Burger: Just to wait on the agency pretty much, don't you?

Mr. Norton: Yes.

So far as I know, the agency does not plan to seek this Court's review of the Ninth Circuit's decision.

The other side may well if it that question is not resolve in this case.

We think that our rational for sustaining the agency's interpretation as to the pre-attainment period would equally apply to the post-attainment period.

So if the Court accepts our rationale that may --

Justice Byron R. White: And the --

Mr. Norton: Foreshadow the result --

Justice Byron R. White: And it doesn't cover the post-attainment period that it shouldn't cover the pre-attainment either.

Mr. Norton: No, no.

Justice Byron R. White: What?

Mr. Norton: We would very agree with the First Circuit that you can distinguish between the pre-attainment and the post-attainment.

Justice Byron R. White: But it isn't the same rationale then?

Mr. Norton: No, it's not to say rational, the same result.

If EPA had adopted the Fifth Circuit's approach of the outset, I think it would have been an unreasonable interpretation which would have disserve the purposes of the Act.

Some of the reasons that we've indicated in our brief imposed tremendous burdens and delays because EPA itself would have had to hold all the hearings on variances that the 50 states held, states might have adopted the less strict standards as a result or made them effective closer to the attainment date rather than sooner.

And if presented with the problems of compliance, they might have revise the entire standard rather than grant an exception for the few who have a difficulty.

Now, EPA's interpretation is consistent with the legislative history limited though it is as we've indicated in our brief that interpretation was brought the Congress' attention, explicitly without any sign of disapproval.

It's in accord with the premise of the Act that states have substantial responsibilities.

As we've indicated in our reply brief, it will not threaten public health as EPA's suggest, and I believe it's a classic interpretation of specialized agency's reasonable interpretation of its own statute in an effort to make its pieces work and set the programs in motion.

It's entitled to the traditional and great deference particularly where it's been so heavily relied upon.

We think the Court of Appeals judgment should be reversed.

I like to reserve the balance of time.

Chief Justice Warren E. Burger: Very well Mr. Norton.

Mr. Ayres.

Argument of Richard E. Ayres

Mr. Ayres: Mr. Chief Justice and may it please the Court.

My name is Richard Ayres and I represent the respondents here.

This case involves the interpretation of the language of the Clean Air Amendments of 1970, a statute which was passed to expand markedly the Government's program to control air pollution.

The question presented is whether the Act requires individual sources of pollution who seek more time to comply with the requirements of state plans, to seek a federal postponement, and when if ever, they may approach state governments for state law variances.

In other words, the question is when does the federal procedure preempt the state law procedures?

We believe the statutes clear on its face the federal preemption occurs as of the time certain and the time certain is the date that the state plans where approved.

EPA on the other hand has argued that preemption occurs or has triggered only by its own judgment that there would be a violation of air quality standards.

Now, I think it's important at the outset to understand why petitioners or respondents before the Court here object to the EPA proposal.

What EPA proposes to do whenever a source comes forward asking for additional time to meet a compliance schedule is to go through an entire analysis of the impact of that source on the air quality, that is the air generally at ground level, as it would be affected by that variance.

In practice, the way this is done is by feeding data concerning the given source into a computer model which is a very complex set of assumptions essentially mathematical form about what will happen here under certain conditions.

Cracking this through the model, and then coming to a prediction on the basis of the model of what the impact would be on air quality.

In most cases, it's just that, a prediction.

Now, that prediction is subject to a great deal of error as you might imagine and EPA had said as we've indicated in our brief that it may be subject to error of as much as a 100%.

At the same time, it also means that there is fruitful ground for objection to any conclusion EPA draws on the part of any source.

The source may come forward with its own data from monitors and say the prediction was wrong or it may come forward and say it's the wrong model or the wrong factor was put into it, whatever these possibilities are.

There's a fruitful opportunity there for dispute over whether or not the air quality standards would be violated.

The second reason why this approach seems to us is one that should not and was not chosen by Congress is because it violates the fundamental scheme of the Act.

The Act is built on the premise that the state plan begins with an evaluation of air quality throughout the state.

State does that on an aggregate basis on the basis of monitors throughout the state.

Second stage is that the state then determines how much reduction is necessary in the emissions; that is the pollution coming out the stacks, in order to meet those air quality standards, again, a general judgment for the state as a whole.

It then applies to each individual polluter, a formula to require reductions and emissions from that individual, and essentially as you can see, the ideas to spread the burden of reducing pollution across sources all over the state.

Now, if you go about looking at each individual polluters affect on air quality when it comes into request a variance, you are then reexamining these general decisions, but on the individual basis, and the result will be if you hand out a lot of variances, you will end up with a very unequal burden being placed on the polluters.

Those who have not received variances will be left with complying and they don't have to pay the cost to that.

Those who received variances because they've been able to convince EPA that they won't violate ambient air quality standards will be left with no requirement to reduce emissions.

The result we think would be fundamentally unfair.

Now, that -- these I think are the reasons why Congress chose in the first place to require any individual change, any change in an individual compliance schedule or any other requirement of the state plan, with respect to an individual source to go through the postponement procedure and not to be judge on the basis of its effect on air quality.

That was too iffy a judgment and it was too unfair to go about it that way.

I think we shown in our brief that the language of the statute is totally an unambiguous.

It states that any source that seeks a change in any requirement that applies to it must go through the postponement procedure.

In fact, the importance of this -- of going through this procedure, the importance of the strictness in the procedure is demonstrated over and over in the legislative history.

As you may notice in reading in the appendix, Congress originally consider requiring sources to go to a federal District Court to obtain this kind of postponement.

Ultimately, they left to an administrative adjudicative hearing as in the final Act.

But this does reemphasize the importance in Congress mind of this procedure as a way to prevent easy escape from the requirements of state plans.

Now, EPA has put forth an alternative interpretation, which is that somehow through the revision authority of the law, it has the authority to allow states to grant variances rather than having sources go through this procedure.

We've canvassed this issue rather thoroughly in our brief, but I think can be summed up in a rather simply way.

Revisions clearly are and I think it's clear on the statute, something which is set up to allow general changes in the state plan.

If a state for example should determine that it had required stiffer requirements, then, it really needs to meet the ambient air quality standards.

It would be free to go to EPA in a general way and ask for general change in its plan.

But the burdens of that change would have to be distributed equally.

It can't go to EPA and ask for individual changes, which would unequally distribute the burdens of meeting the national ambient air quality standards

The primary purpose of the revision authority, I think it's clear in the statute, was to allow for situations where changes had been made or could be made that will allow for earlier compliance rather than later compliance.

But in any case, the revision authority is something which is to be used to make general changes in the state plan, not changes applicable to a specific sources; the distinction we think is very clear.

Now, this distinction has also been agreed to by five Court of Appeals; they reviewed the issue.

All five of those courts who appeal rejected EPA's claim that it had authority under the revision authority to allow specific sources of pollution to have more time.

Four of those five Courts of Appeals agreed with us that the trigger after which the postponement procedure became applicable was a date certain, not a judgment about air quality.

The Fifth Circuit chose what we think is the correct interpretation that the dates certain was the date of approval of the state plan, which of course was in 1972 in those cases.

Justice Byron R. White: It's your position now, it wasn't always.

Mr. Ayres: No, that's always been our position, unless you're referring to the statement before Congress that I made.

In which case, all I can say is that was a statement made in the context of a general attack on the state variance laws.

Mr. Ayres: We believe that its time that those were too lax and was also made in the context when we really had and looked at the law closely.

Justice Byron R. White: And what forms of agreement during that time, at the time of --?

Mr. Ayres: That's right.

Three others --

Justice Byron R. White: Four others are not?

Mr. Ayres: Well, four others have not.

The three courts, the First, Second and Eighth Circuits agreed with us as to the concept, that is it's a date certain that triggers the postponement procedure, not an air quality judgment.

But they chose to set that date as the date of the attainment date specified in the state plan for meeting air quality standards.

This is confusing.

I think the crucial figure to notice is that it's the date set for attainment, it's not a question of whether an individual source will affect attainment; that's the Government's position.

The other three courts said, it's a date certain.

It's a date certain that the state chose to attain the national standard, which in most cases is mid-1975, although there are some cases where later dates were chosen through another procedure which is not at issue before the Court here.

I think it's important also to look at the suggestion EPA has made that strict construction of 110 (f) as it's written would be burdensome because I think that's a false argument.

110 (f) does not always require a hearing, 110 (f) requires an opportunity for hearing, requires that there'd be findings in a adjudicative proceeding, and that those findings relate to the availability of technology, the uses of available alternative measures in order to reduce the effects of the continued pollution during the interim period.

And the judgment about whether the source is sufficiently valuable so that it's continued pollution at those levels is cognizable.

EPA has in effect admitted that this is not a terribly burdensome procedure by promulgating the September 26 Regulations.

Those regulations required that in the post-attainment period, the only means for attaining more -- for obtaining more time is through the federal postponement procedure.

And obviously, if that procedure was burdensome as the agency has made out before this Court, it would not been willing to publish those regulations.

In fact, the scheme that EPA proposes, the revision authority is more burdensome.

It involves the states making an original judgment upon the requested variance.

A judgment which includes additional factors besides the once that are included under 110 (f) such as the question of the effect on air quality which is a difficult inexpensive determination to make.

These proposed variances then go to EPA, which goes over the same set of information, comes to another judgment on air quality as well as other issues.

And if it disagrees with the state and decides that the air quality impact would result in a violation of ambient air quality standards, since the proposed variance back to the state where the state begins at that point through the postponement procedure, this in our view is a recipe for delay.

It's much more burdensome than the 110 (f) procedure, which is a single procedure with a smaller number of issues to deal with.

In our view basically, the difference between the two schemes with respect to burden is that the revision procedure suggested by EPA shift some of the burden to the states.

That maybe an EPA's bureaucratic self-interest, but it's not necessarily in the public interest.

And finally, I think it's important to realize that EPA's statements about the burden of this 110 (f) procedure ignore the whole purpose of the 110 (f) procedure of making it a stringent procedure, which was to discourage sources from seeking additional time rather than compliance.

And if the 110 (f) procedure works as it was intended, there will be fewer requests than there will be if the -- if you use the revision procedure.

In that case, the burden on the agency will of anything be reduced.

I think it's important to realize that EPA has brought this case before the court because essentially when error that was made in 1972 by the agency.

When the states first adopted their plans, EPA consented to a confusion in some state laws between what a compliance schedule was and what a variance was.

Compliance schedule being a schedule set at the time emission limitations where adopted, which gave the source time to comply with those emission limitations, as oppose to a variance which adds more time on the end.

As a result, EPA now has several thousand in the Fifth Circuit state law variances which are in effect compliance schedules under federal law.

Now, this obviously creates a burden if you continue to operate on the premise that this will continue to be dealt with these variances.

In our view, we have no interest or desire in forcing the agency to go back through a whole process which amounts to essentially changing the name of what was called the state variance and calling it something else.

The court stayed the order of the Fifth Circuit knowing at that time that it would result in EPA's approving several thousand variances in the Fifth Circuit.

Those variances are approved and --

Justice William H. Rehnquist: We stay it or does the Fifth Circuit stay it?

Mr. Ayres: Fifth Circuit refuse, denied a request for stay and of course --

Justice William H. Rehnquist: Fifth Circuit denied the stay and do we do anything --

Mr. Ayres: Yes.

The stay request was made here and it was granted.

And during that period, EPA promulgated approval of these several thousand variances.

Now as to those variances, we're perfectly happy to leave them where they are.

We believe that in effect they are compliance schedules and it seems to add nothing to go back and to try to reclassify those.

In fact, the Fifth Circuit's order was not one that would require retrospective application.

The Fifth Circuit ordered EPA to disapprove the State of Georgia's variance statute, and it said nothing about retrospective application, talk in terms of future application.

Mr. Ayres: So, we think that although we suggest that one alternative for how to deal with these variances are brief, perhaps an equally go to a better alternative is simply to make to affirm the lower court's ruling which would have prospective effect and leave the variances as they were called before in place.

Justice Byron R. White: So, you would enjoin the agency from acting in accordance with its -- with a contra review for the future?

Mr. Ayres: For the future, we would have the agency under order to not to approve any such state variance and to order --

Justice Byron R. White: Except the postponement?

Mr. Ayres: Well, yes such a procedure would go through the postponement procedure that disapproval of the state variance law would leave only the procedural postponement to go through.

With respect to those future request for more time, EPA September 26 Regulation's disapprove the state variance statutes.

So, one stage of what we believe was the proper interpretation of Fifth Circuit's decision and what this Court should uphold is already taken place.

EPA has disapproved all the state variance statutes.

EPA also proposed a replacement federal regulation.

Justice Byron R. White: EPA is not in compliance with Fifth Circuit rule?

Mr. Ayres: EPA -- well, they disapprove all state variance statutes in compliance with the First, Second, Fifth and Eighth.

They then proposed an alternative federal regulation to replace those, which wasn't compliance with the First Circuit.

Now, we believe that proposed regulation should have been one that was in compliance with the Fifth Circuit, and the agency would of course be free in compliance with the ruling from this Court to promulgate a regulation that properly implement the Fifth Circuit rather than the First Circuit rule.

Justice Thurgood Marshall: Mr. Ayres, the complaint here, the court is filed --

Mr. Ayres: Pardon me?

Justice Thurgood Marshall: The original complaint.

Mr. Ayres: Is it before the court?

Justice Thurgood Marshall: Yes, no.

It's not in mimic the document, is it here, is it lodged with the clerk?

Mr. Ayres: This is the case which went directly to the Court of Appeals rather than to the District Court.

So, there was only a notice petition for review.

That is I believe in the appendix, is that right?

Justice Thurgood Marshall: Is this?

Mr. Ayres: I think it's in there.

Justice William H. Rehnquist: You went from the agency to the Court of Appeals?

Mr. Ayres: Yes.

The statute requires that the -- that review of the administrator's action and approving a plan will go directly to the Court of Appeals.

Justice Thurgood Marshall: Is it the report?

No, this is the Senate Report to either one of them.

Justice Potter Stewart: Petition for review.

I don't think it's in the appendix.

It maybe --

Justice Thurgood Marshall: Well, it would be in the record --

Mr. Ayres: Yes.

It's noted on page 1 of the appendix as petition filed for review.

It's a docket entry, June 30 of 1972.

Justice Potter Stewart: Noted, but it's not incorporated?

I guess it's not incorporated.

I thought it was.

Justice Thurgood Marshall: Are all of these things are here with the clerk?

Mr. Ayres: I believe they are.

The Government --

Justice Thurgood Marshall: We will you check and see?

Mr. Ayres: We will check now.

Justice Thurgood Marshall: Thank you.

Justice Potter Stewart: The -- my brother Marshall's question raises one in my mind if it's going back to threshold of the matter of your -- the standing of your client's in this case.

That's not discussed anymore in the briefs, nor in the Court of Appeals opinion, and maybe it's not -- there's no question of it, but --

Mr. Ayres: Well, we don't think there's any question of it.

It was briefed before the Fifth Circuit.

Justice Potter Stewart: It was?

Mr. Ayres: Yes, and the court --

Justice Potter Stewart: Doesn't even mention of it, do they?

Mr. Ayres: Well, it does mention, and so -- and since that is question that goes to jurisdiction, it must be presumed to decide in our favor, yes.

Justice Potter Stewart: But -- and it's not mention in the briefs here.

Mr. Ayres: No, it's not mentioned in the briefs here.

That's right.

It's not an issue between the parties and never has been accepted in that --

Justice Potter Stewart: I'm thinking of our decision in the Sierra Club case and so on -- what is your -- the injury to your clients in fact?

Mr. Ayres: Well, the injury in fact, Your Honors, that the petitioners here are a national organization with members in Georgia, Georgia organization, and two, Georgia resident.

So, the injury in fact involved is the effect on their health of breathing continued polluted air which we believe would result from the failure of the state plan to reach the intended goal of meeting the national air quality standards on time.

Justice Potter Stewart: Or we have National Resources -- National Resources Defense Council Inc. at Allen and you get Allen includes two individual --

Mr. Ayres: Yes.

On the cover of the respondent's brief, you will see the listing of the parties.

Justice Byron R. White: Janey Weber and Susanne Allstrom.

Mr. Ayres: Those are -- they are both residents of Georgia, yes.

Justice Byron R. White: And Save is a Georgia --

Mr. Ayres: It's a Georgia non-profit organization.

Justice Lewis F. Powell: Do the two individuals live in the outsource that has sought a variance?

Mr. Ayres: They live in areas where abatement actions had been undertaken.

I don't know for sure whether they live in that area where sources sought a variance.

Justice Lewis F. Powell: If that could shed light on this.

Mr. Ayres: I don't believe it does, no.

The organizational plaintiffs are petitioners, I think both cases sue on behalf of their members which obviously is one of the crucial test, is that they're be members involved in those areas would be affected by the action in both cases, the organizational petitioners below do have members there who would be affected by continued pollution in those areas.

Justice Lewis F. Powell: Does the record show that number of members in Georgia?M

Mr. Ayres: I believe it does, yes.

The issue as I say was briefed before the Fifth Circuit Court, and the statement was filed in the court as to the standing possessed by the various parties.

Justice Harry A. Blackmun: I gather you have some 16,000 members?

Mr. Ayres: Approximately, yes.

Justice Potter Stewart: It was briefed you say, was it at issue that the Government --

Mr. Ayres: Well, it was not raised in the briefs some -- in chief on the case.

It was raised by the Government at oral argument and the court asked for supplementary briefing on issues.

So, the briefs was --

Justice Potter Stewart: On both sides, so it --

Mr. Ayres: On both sides.

Justice Potter Stewart: -- it's an adversary briefing.

Mr. Ayres: Yes, it was.

Justice William H. Rehnquist: What's the statutory language, any interested first?

Mr. Ayres: The statute -- the section suit undergoes to the proper court, that is to say, it says of suit to review the administrator's action and approving specific state implementation plan shall be filed in the appropriate circuit.

Justice William H. Rehnquist: But doesn't it say by any interest, isn't the language any --

Mr. Ayres: There is a --

Justice William H. Rehnquist: -- interested person --

Mr. Ayres: There's a separate -- it would, it says it's a petition for review of the administrator's action and approving or promulgating a plan, may be filed only in the United States Court of Appeals for the appropriate circuit.

There's a separate section which provides for citizens in certain circumstances which states that any person may bring suit and I think it's pretty clear in the legislative history of this section that the intent was quite the same in both sections.

Justice Byron R. White: Within the constitutional limits?

Mr. Ayres: Yes, within the constitutional limits, one must presume.

Justice Potter Stewart: I would be interested the a little canvassing of this question.

I wonder if with the Chief Justice permission, I could ask the parties perhaps just submit that briefs that were submitted to the Court of Appeals.

Mr. Ayres: Certainly.

Chief Justice Warren E. Burger: Do you stil have --

Mr. Ayres: Yes.

Chief Justice Warren E. Burger: -- copies available.

Mr. Ayres: We do.

We'll be please to --

Chief Justice Warren E. Burger: At our satisfactory submit them in sufficient numbers to --

Mr. Ayres: Yes.

Justice Byron R. White: We'll just address to the statutory question as to what Congress intended -- the parties might -- who the parties might be or was -- did you address the constitutional question?

Mr. Ayres: We addressed both the issue of the attributes in the parties and the requirements of the statute and the general requirements this Court has enunciated with respect to standing in general.

Justice Thurgood Marshall: Would your petition show standing?

Mr. Ayres: Petition is a notice petition in compliance with the usual --

Justice Thurgood Marshall: Does it show anything about standing?

Mr. Ayres: No, it doesn't allege anything about standing.

Justice Thurgood Marshall: But where do we get the standing process, the factual basis for the stand?

Mr. Ayres: Well, I think there are two ways of answering that.

One is that the court below did consider information.

Justice Thurgood Marshall: Did note two with that my question, I mean where in the record is the material we can use to find out whether or not your client have standard --

Mr. Ayres: Well, one is --

Justice Thurgood Marshall: -- in any of the record?

Mr. Ayres: For one is that -- in the documents submitted and along with the briefing of this issue since the issue wasn't raised in the briefs in chief.

Justice Thurgood Marshall: Oh!

Which arguments you come for affidavit?

Mr. Ayres: Yes, there are affidavits in there.

Justice Thurgood Marshall: Are they acceptable evidence that we could consider?

Mr. Ayres: Well, there's a difficult -- I think they are, but there's a difficult problem here and that this case arose before the Court of Appeals was not before a court that was really equipped to take evidence.

Justice Thurgood Marshall: -- do we have a case, a controversy without that standing.

Mr. Ayres: Well, I think there's no question that there is a case of controversy.

Justice Thurgood Marshall: You say for example that these organizations are in there because some of their members in Georgia will breathe that air.

What would that also allow the Chamber of Commerce to join?

Mr. Ayres: I presume it would if their comes members --

Justice Thurgood Marshall: But I comment those organizations to join --

Mr. Ayres: I presume --

Justice Thurgood Marshall: -- made cross?

Justice Byron R. White: Well, the Ninth Circuit held that it didn't.

Mr. Ayres: The Ninth Circuit -- that decision with respect to standing is still on petition for rehearing in the Ninth Circuit.

Justice Byron R. White: Well, I understand that nevertheless --

Mr. Ayres: They did held -- they did hold that, that's right.

We believe that decision was wrong under your --

Justice Byron R. White: They permitted individual members?

They permitted individuals to see, yes.

Justice Byron R. White: Your members as individuals could sue?

Mr. Ayres: Yes.

Justice Byron R. White: But not the organization?

Mr. Ayres: We held that an organization could only sue if the organization was injured in a way identical without of the members, and we believe that is wrong under a long line of your cases, and that's why we sought petition for rehearing.

It would --

Justice Byron R. White: But you think there's no question of the standing of a resident of Georgia for example to attack the adequacy of the Georgia --

Mr. Ayres: I think there's not.

I think if --

Justice Byron R. White: Any resident, not just your members, but --

Mr. Ayres: Yes, I think that's right.

I think the statute was intended to provide broad citizen participation.

Justice Byron R. White: Well, I gather Janey Webber and Susanne Allstorm were not parties as your members, are they?

Mr. Ayres: That's right, their parties --

Justice Byron R. White: Independent.

Mr. Ayres: Independently on their own.

Justice Byron R. White: Both citizens of Georgia.

Mr. Ayres: That's right.

Justice Byron R. White: -- suffering from -- injured by the --

Mr. Ayres: Yes.

Chief Justice Warren E. Burger: They breathe this air.

Mr. Ayres: Yes, that's correct.

Justice William H. Rehnquist: Mr. Ayres, take a look at 63 (a) if you have it there of the Government's petition which sets forth that some of the statutory language, and -- I can't keep all these sections straight, but was subparagraph capital B that begins about the middle of 63 (a), “any determination made person to this paragraph shall be subject to judicial review by United States Court of Appeals for the circuit which include State upon filing in such court within 30 days of such decision of a petition by any interested person.”

Now do you -- does that govern this particular action that it's here before us now?

Mr. Ayres: No.

This has to do with review of the administrator's action in granting a postponement.

I take it has only to do without.

Justice William H. Rehnquist: And what is the Section then that authorizes review of this administrator's action which you sought to have a review in the Fifth Circuit?

Mr. Ayres: That is Section 307 of the Act, which is Section 1857h-5.

Justice William H. Rehnquist: Did you know where it is in the Government's brief or your brief?

Mr. Ayres: I'm not sure that it is.

Justice Byron R. White: In that proceeding?

Mr. Ayres: Cited I believe in --

Justice William H. Rehnquist: Oh!

Don't worry about it, at least for now.

Mr. Ayres: This -- the issue of that Section is briefed in the briefing that was done the court below in standing, so it would be clear from that I think.

Well, to summarize very quickly that the -- we feel the issue before the Court is one which involves the interpretation of the statute which is very clear, unambiguous on its face, and this Court should in line with its traditional function, interpret that statute as it reads and that the agency should.

It believes this interpretation of the laws that's written is incorrect.

Take that controversy to a forum which can consider in full which would be in this case the Congress.

Thank you very much.

Chief Justice Warren E. Burger: Mr. Norton, do you have anything further?

Rebuttal of Gerald P. Norton

Mr. Norton: Very briefly.

If I may respond just to the standing question first as been raised, I think the statutory problems here demonstrate why the agency's interpretation should be entitled to great deference.

The Act is not a really cohesive piece.

There are different wordings in the different standing or judicial review provisions.

I don't know whether the briefs in the lower courts include all of the cases that had been decided on this question but we'll see what they do say in submit something appropriate.

EPA's position, as I understand it comes down to the proposition that if a state failed by one day to submit a compliance schedule as part of its implementation plan, it would be completely out of the picture his concept of federal preemption would totally take over and it be nothing left for the state to do.

We don't see the Act is reading that way.

It would stand the principle of cooperative federalism on its head to do so.

On the question of the efficacy of the analysis of the effect of a particular source on air quality in a region, first, that comes up only in the post-detainment period.

A pre-attainment variance is not going to have any effect on the attainment of various standards.

As to the post-attainment period, we've indicated in our reply brief at page 4 that the other side is failing to distinguish between analyzing the effect of an existing source and analyzing and predicting the effect of a future source.

And finally on the question, the suggestion that somehow the case is no longer alive because of what has happened.

First of all, we don't know the consequences of the Fifth Circuit's ruling on variances which were granted pursuant to EPA's longstanding interpretation.

I don't suggest the Court has to resolve those issues, but it does present a live issue for the sources in the state's in question, and notices of citizens who's had been filed in at least some suits states.

In addition, some attainment dates extent as late as 1977.

Thirdly, the cycle that we've gone through here of pre-attainment period and attainment date can be repeated because the statute provides for the possibility of the promulgation of new national air quality standards when EPA determines that there are additional pollutants that need this treatment.

In addition, they can revise the existing standards which would again set in motion the same cycle. And then finally, the decision as to the pre-attainment period does have a bearing on what the law is for the post-attainment period as I've indicated.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.