The State of Connecticut and The Connecticut Fund for the Environment petition for review of a final rule of the Environmental Protection Agency permitting the Long Island Lighting Company to continue burning 2.8% sulfur content fuel until September 24, 1984 at certain power plants in Suffolk County, New York. Petitions denied.
Feinberg, Chief Judge, Friendly and Kaufman, Circuit Judges.
These challenges to a final ruling of the Environmental Protection Agency ("EPA" or "Agency") call upon us to steer a course through the labyrinth that is the Clean Air Act.*fn1 Few statutes present more complex problems for the nation's courts than this 120-page treatise designed to safeguard our precious air resources. And, fewer are more important. Indeed, in reaching the proper construction of the Act's requirements we must never forget Congress's aim, universally shared, for a cleaner, healthier environment. At the same time, we remain guided by the fundamental principles of law which give the EPA broad discretion as the guardian of Congress's goal. Our task is not to determine whether the EPA has been the wisest steward but only whether the Agency has violated its legislative mandate, losing sight of the charted path to the promised land of clean air.
More than a decade ago, Congress embarked upon a bold experiment in cooperative federalism designed to protect the nation against the grave threat of air pollution. The Clean Air Amendments of 1970*fn2 order the federal Environmental Protection Agency to promulgate "national ambient air quality standards."*fn3 These standards, in simple terms, identify the maximum concentrations of specific pollutants that are determined by the EPA to be consistent with the public health and welfare. The 1970 Amendments also require each state to draft its own "state implementation plans" to ensure that pollution levels are brought and kept below the national standards.*fn4 All state implementation plans and revisions must be approved by the EPA.*fn5
No aspect of this novel attempt to establish joint state and federal responsibility is more crucial than the provisions which guarantee that air pollution generated in one state does not disrupt another state's plans for complying with the national standards. Indeed, one purpose of the Clean Air Act Amendments of 1977,*fn6 which further refined the statutory scheme, is to strengthen and clarify EPA's obligation to consider carefully the interstate impact of any revision of a state implementation plan ("SIP").*fn7 The 1977 Amendments also outline the type of interstate impacts that are permissible.*fn8 Petitioners, the State of Connecticut and Connecticut Fund for the Environment ("CFE"), today ask us to determine whether the EPA complied with the stringent requirements of the 1977 Amendments when it approved a revision of New York's state implementation plan allowing five plants owned by the Long Island Lighting Company ("LILCO") to continue burning fuel of 2.8% sulfur content in Suffolk County, New York.
Our careful analysis of petitioners' challenges to EPA's action leads us to conclude that the Agency has indeed satisfied these rigorous conditions.
This case reaches us after a somewhat intricate procedural and factual history. Its roots stretch at least as far back as July 20, 1976 when the EPA approved a one-year temporary special limitation in New York's state implementation plan permitting the use of 2.8% sulfur content fuel at LILCO's Port Jefferson Generating Facility units 3 and 4 and 2.5% at Northport Generating Facility units 1-3. 40 C.F.R. § 52.1670(c)(30)(31) (1981). New York's overall environmental regulatory scheme generally authorizes the burning of only 1% sulfur content fuel in Suffolk County, but it also explicitly provides for such special limitations when granted by New York's Commissioner of Environmental Conservation and approved by the EPA. N.Y. Admin. Code Tit. 6, §§ 225.1-225.2 (1979).*fn9 In 1977 EPA approved a three-year extension of LILCO's special limitation which permitted the burning of 2.8% fuel at all five plants. 40 C.F.R. § 52.1670(c)(33) (1981). This extension expired on May 31, 1980.
Limits on the sulfur content in fuel are designed chiefly to minimize levels of sulfur dioxide ("SO") in the surrounding air. See Connecticut Fund for the Environment v. EPA, 696 F.2d 169 (2d Cir. 1982) (" Connecticut Fund II ").*fn10 As discussed infra at 162-166, however, percentage requirements for sulfur in fuel also help place a ceiling on the amount of total suspended particulates ("TSP") which a fuel burning source, such as a power plant, emits into the atmosphere. The State of Connecticut's and CFE's challenge to EPA's approval of New York's decision to continue permitting LILCO to burn higher sulfur content fuel centers on possible increased concentrations of these two pollutants in Connecticut's air.*fn11 We note at the outset, however, that because this case involves a continuation of existing practice rather than permission to increase the sulfur content of fuel, no new or additional pollution will result from the challenged Agency action.
New York's Department of Environmental Conservation ("DEC") first made clear its intention to extend LILCO's special limitation beyond the May 31, 1980 deadline in a report dated January 14, 1980. The DEC evaluation, produced following LILCO's November 1979 request for an extension and its submission of data, indicated that continued burning of 2.8% sulfur fuel at Port Jefferson and Northport would not cause a violation of the national ambient air quality standards ("NAAQSs") for sulfur dioxide in New York.*fn12 This original report did not consider the effect of LILCO's emissions on Connecticut or the impact of those emissions on either state's efforts to comply with the NAAQSs for total suspended particulates.
Pursuant to 42 U.S.C. § 7409 (Supp. IV 1980), the EPA has promulgated two types of national standards for both SO and TSP.*fn13 As the statute requires, the Agency has established primary standards designed to protect the public health, and secondary standards aimed at protecting the public welfare. Both standards are measured in terms of pollution concentration levels and are expressed in maximum weight (micrograms) of a specific pollutant per unit volume (cubic meters) of air. Mathematical equivalents of the standards are provided in terms of parts per million ("p.p.m."). In addition, the standards are set to measure pollution concentrations over designated periods of time. For example, one primary standard for sulfur dioxide requires that the second highest concentration of that pollutant over any 24-hour period in a given year not exceed 365 micrograms per cubic meter ("ug/m3") or in equivalent terms not exceed.14 p.p.m. 40 C.F.R. § 50.4(b)(1982). New York's analysis of the data provided by LILCO revealed that the maximum second highest concentration of sulfur dioxide over a 24-hour period created at any location by LILCO's burning of high sulfur fuel was.063 p.p.m. at Port Jefferson.*fn14 Based on this manner of calculation, the DEC staff endorsed extending LILCO's special limitation.
After public notice, DEC held a hearing concerning the proposed extension on February 19, 1980. No one objected to LILCO's request at that time. Neither the State of Connecticut nor CFE filed comments or in any way participated in the New York State DEC proceeding. On April 29, 1980 New York's Commissioner of Environmental Conservation entered an order extending LILCO's permission to burn 2.8% sulfur at Port Jefferson and Northport for three years from the date of the requisite EPA approval. DEC immediately submitted its proposal for approval to the EPA. The Agency, however, had taken no action on DEC's request when LILCO's special limitation expired on May 31, 1980. LILCO continued to burn the higher sulfur fuel.
On July 3, 1980 EPA published its proposed approval of DEC's request to extend LILCO's special limitation, and invited public comments on whether the extension should be approved. 45 Fed. Reg. 50,832 (1980). The notice directed the public to the rules, set forth in 42 U.S.C. § 7410(a)(2)(A)-(K) (Supp. IV 1980), governing the EPA's decision to approve or disapprove revisions of state implementation plans.*fn15 These rules apply in this case since New York's approval of LILCO's special limitation is a revision of New York's EPA approved SIP.
In direct response, the State of Connecticut filed comments on August 29, 1980 alleging that Agency approval of New York's proposal would violate 42 U.S.C. § 7410(a)(2)(E) (Supp. IV 1980). This provision establishes guidelines EPA must use in assessing the interstate impact of any state's proposed revision of its state implementation plan. In sum, Connecticut argued that New York's proposal to allow LILCO to continue burning high sulfur fuel would sufficiently harm Connecticut's air so as to violate the Clean Air Act. We will discuss this argument in detail in Part II of our opinion.
In a separate proceeding, Connecticut also petitioned the EPA on August 28, 1980, pursuant to 42 U.S.C. § 7426 (Supp. IV 1980), asking the Agency to find that under New York's proposal, LILCO's emissions would contravene 42 U.S.C. § 7410(a)(2)(E)(i) (Supp. IV 1980) by "preventing the attainment and maintenance" of the NAAQSs in Connecticut. 42 U.S.C. § 7426, added to the Clean Air Act by the 1977 Amendments, extends to states the right to bring such petitions and requires the EPA to find a violation or deny the petition within 60 days. The EPA held hearings on Connecticut's petition on December 3 and 4, 1980. It has yet to act upon them.
The Agency did, however, investigate Connecticut's allegations. It received additional technical analysis from LILCO and the State of New York concerning the effect of the proposed revision on Connecticut's air. This analysis demonstrated that LILCO's emissions would not cause a violation of the EPA's primary or secondary standards for sulfur dioxide in Connecticut. See Analyses of Total SO Concentrations At Selected Sensitive Connecticut Locations, Long Island Lighting Company, April 14, 1981, J.A. at 80. EPA's evaluation also indicated that burning of 2.8% sulfur fuel at LILCO's plants would create an insignificant impact on concentration levels of total suspended particulates in Connecticut. Technical Support Document to New York State Implementation Plan Revisions Effecting [sic] the Long Island Lighting Company, EPA -- Region II, August 12, 1981, ("EPA Technical Support Document"), Attachment A, J.A. at 233. EPA then extended the comment period until June 19, 1981, to allow the public to respond to this new technical material. 46 Fed. Reg. 27,501 (1981). Connecticut submitted supplemental comments on June 17, 1981, again challenging New York's and EPA's conclusions. In its own technical report EPA responded to the various contentions raised by Connecticut and found that LILCO's emissions under New York's proposal would not violate the Clean Air Act. EPA Technical Support Document, supra, Memorandum, "Review of Comments Received on New York State Supplemental Air Quality Modeling Analysis of the Long Island Lighting Company," from Robert Predale to Raymond Werner, J.A. at 214. Accordingly, the EPA, on September 24, 1981, issued a final rule approving LILCO's special limitation which expires on Sept. 24, 1984. 46 Fed. Reg. 47,069 (1981).*fn16
On November 12, 1981, the State of Connecticut petitioned this Court for review of the Agency's action pursuant to 42 U.S.C. § 7607(b)(1) (Supp. IV 1980). Connecticut Fund for the Environment filed its petition 11 days later.*fn17 Both petitions raise various challenges to the propriety of the EPA's decision, many of which were presented by Connecticut in its comments submitted to the EPA. We now turn to these challenges.
The many claims raised by the State of Connecticut and Connecticut Fund for the Environment encompass a maze of technical information and mathematical analysis. Petitioners question, among other things, both the statistical modeling used by the EPA in assessing the impact of LILCO's emissions upon Connecticut's air and the data used in performing these calculations. They claim the Agency used readings from an improper location, chose meteorological information from the wrong year and measured emission levels without considering the actual height of the stacks of LILCO's plants. Each of these charges must be examined in detail.
Two initial points of reference serve to guide us through our task of carefully evaluating the points of contention. As always, we begin with the language of the statute. Each challenge to the EPA's ruling hinges on 42 U.S.C. § 7410(a)(2)(E) (Supp. IV 1980) which prohibits the EPA from approving a revision to a state implementation plan unless
Petitioners allege here that the EPA, in approving New York's revision of its state implementation plan, violated every portion of this statutory provision. The statute therefore provides the basic framework for our analysis.
Our second focal point is provided by the statutory and time-tested principles which govern our standard of review. Courts inquiring into the propriety of agency action are to determine only whether that action is arbitrary and capricious, constitutes an abuse of agency discretion or is otherwise not in accordance with law. 5 U.S.C. § 706(2)(A) (1976); 42 U.S.C. § 7607(d)(9) (Supp. IV 1980); Friends of the Earth v. EPA, 499 F.2d 1118, 1123 (2d Cir. 1974). The court must consider whether the agency's decision was based on a consideration of relevant factors and whether there is a clear error in judgment. "Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Friends of the Earth v. EPA, supra, 499 F.2d at 1123, quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971).
Moreover, we are to give great deference to the Administrator's interpretation of the statutes she is charged with administering. EPA v. National Crushed Stone Association, 449 U.S. 64, 83, 66 L. Ed. 2d 268, 101 S. Ct. 295 (1980). Such deference is entirely appropriate in light of the Agency's expertise and experience with the intricate workings of the Clean Air Act and EPA's greater understanding of the pollution problem that Act is designed to control. Indeed, our willingness to uphold the EPA's construction, absent clear indication of a contrary legislative intent, is more than just an oft-repeated shibboleth. Allowing the Administrator broad discretion to carry out the will of the people, as expressed by Congress, is basic to this nation's historic commitment to the separation of powers. Our task is not to determine whether the Agency has selected the best means to that end, but only to ensure that the end is kept clearly in sight. As Justice Frankfurter so eloquently stated, the courts "must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy." Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194, 61 S. Ct. 845, 85 L. Ed. 1271 (1941).
Accordingly, unless petitioners can demonstrate that the EPA's construction of 42 U.S.C. § 7410(a)(2)(E) is plainly unreasonable, we must uphold that interpretation. See Lead Industries Association v. EPA, 208 U.S. App. D.C. 1, 647 F.2d 1130, 1147 (D.C. Cir.), cert. denied, 449 U.S. 1042, 66 L. Ed. 2d 503, 101 S. Ct. 621 (1980). With these considerations in mind we turn to the specific provisions of the statute -- provisions, we might add, whose myriad complexity reminds us of Learned Hand's description of the Internal Revenue Code. The words of that act, he declared "tend to dance before [one's] eyes in a meaningless procession: cross-reference to cross-reference, exception upon exception -- couched in abstract terms that offer no handle to seize ...