Scope of the Environmental Protection Agency's Discretion to Adopt Any One of Three Alternative Interpretations of the Mitchell-Conte Amendment to the Clean Air Act

Scope of the Environmental Protection Agency’s

Discretion to Adopt Any One of Three Alternative Interpretations of the

Mitchell-Conte Amendment to the Clean Air Act

Based on Chevron US.A. Inc. v Natural Resources Defense Counsel, Inc., the Environ­ mental Protection Agency has the discretion to adopt any one of three alternative EPA- suggested interpretations of the 1988 Mitchell-Conte Amendment to the Clean Air Act.

April 14, 1989 M em orandum O pin io n for th e G en eral C ounsel

O ffic e o f M ana gem en t and B u d g et This memorandum responds to your request of November 8, 19881, that this Office resolve a dispute between the Office of Management and Budget (“OMB”) and the Environmental Protection Agency (“EPA”) as to whether EPA has the discretion to adopt any one of three alternative EPA-suggested interpretations of the Mitchell-Conte Amendment. EPA argues that it possesses such authority, while OMB argues that only the first of the three suggested interpretations is legally permissible. For the reasons set forth below, we conclude that EPA does possess the authori­ ty to adopt either the second or third alternative interpretation, in addi­ tion to the first interpretation.

I. Background2

The Clean Air Act Amendments of 1970, Pub. L. No. 91-604, § 1, 84 Stat. 1676 (“CAA”) directed EPA to establish primary and secondary National Ambient Air Quality Standards (“NAAQS”) to protect the public health and the public welfare, respectively. Under these amendments, the states were directed to develop and adopt State Implementation Plans (“SIPs”) to attain and maintain the NAAQS. Specifically, section 110(a) of the CAA required the states to develop and adopt SIPs that would attain the NAAQS in most areas by 1975, with some extensions until 1977, pursuant to section 110(e) of the CAA.

Section 107(d) of the CAA Amendments of 1977, § 197(d), 91 Stat. 685, 687-89 (codified at 42 U.S.C. § 7407(d)) (“section 107(d)”), required that each state identify all areas within its boundaries that had not attained the NAAQS by August 7,1977. The EPA was required to promulgate these lists within 60 days, with such modifications as EPA deemed necessary and after giving the states notice and opportunity to comment. The EPA promulgated most of these designations on March 3, 1978. Attainment Status Designations, 43 Fed. Reg. 8962 (1978) (codified at 40 C.F.R. pt. 81). Part D of the CAA, 42 U.S.C. §§ 7501-7508 (“Part D”), required that those areas designated as “nonattainment” in 1978 submit SIP revisions by January .1, 1979 that demonstrated attainment of the NAAQS by December 31, 1982. EPA could approve a state’s application for an exten­ sion of the attainment deadline until December 31, 1987, upon a proper demonstration that attainment of the NAAQS was not possible by the December 1982 deadline, despite the use of all “reasonably available” measures.

EPA initially took the position that it could modify an area’s promul­ gated designation at any time when warranted by evidence of nonattain­ ment of the NAAQS, not only upon review of the affected state’s original recommendations. However, in Bethlehem Steel Corp. v. EPA, 723 F.2d 1303 (7th Cir. 1983), the U.S. Court of Appeals for the Seventh Circuit held that EPA could not unilaterally modify an air quality area designa­ tion under section 107(d) after having promulgated statutorily-required designation lists, unless the concerned state had requested such a modi­ fication. EPA subsequently, as a matter of practice, acquiesced in the rea­ soning of Bethlehem Steel in all states, not just those in the Seventh Circuit. 53 Fed. Reg. at 20,724. Consistent with such acquiescence, absent a request from the affected state, EPA did not redesignate as nonattain­ ment an area which had originally been designated as attainment or unclassifiable, regardless of the evidence of violation of the NAAQS. Id.

In November 1987, EPA announced it would develop a program to address the likelihood that many areas of the country would not attain the NAAQS for ozone and carbon monoxide by the statutorily-required CAA deadline of December 31, 1987. State Implementation Plans; Approval of Post-1987 Ozone and Carbon Monoxide Plan Revisions for Areas Not Attaining the National Ambient Air Quality Standards; Notice, 52 Fed. Reg. 45,044 (1987). Among the matters EPA proposed for comment was the issuance of calls to the states for revised SIPs in any geographical location where recent monitoring data showed violations, irrespective of the area’s past designation as attainment or nonattainment. EPA also proposed adjusting the boundaries of nonattainment areas to add all counties in a metropolitan statistical area (“MSA”) or a consolidated MSA (“CMSA”), whether the areas being annexed to the preexisting nonattainment area showed violations or not. Id. at 45,044, 45,054-55.

In January 1988, Congress enacted the Mitchell-Conte Amendment (“MCA”) to the Fiscal 1988 Continuing Resolution, Pub. L. No. 100-202, 101 Stat. 1329, 1329-199 (1987). The bulk of the MCA temporarily pro­ hibits (during the period prior to August 31, 1988) the EPA from impos­ ing CAA “restriction[s] or prohibition[s] on construction, permitting, or funding” of industrial facilities in geographic areas that have not attained specified clean air standards by December 31, 1987. The last sentence of the MCA reads:

Prior to August 31, 1988 the Administrator of the Environ­ mental Protection Agency shall evaluate air quality data and make determinations with respect to which areas throughout the nation have attained, or failed to attain, either or both of the national primary ambient air quality standards referred to in subsection (a) and shall take appropriate steps to designate those areas failing to attain either or both of such standards as nonattainment areas within the meaning of part D of title I of the Clean Air Act.

Id. (emphasis added).

On June 6, 1988, the EPA issued a notice of proposed rulemaking set­ ting forth three alternative interpretations (“alternative interpretations”) of the MCA’s last sentence: (1) EPA could identify those areas that failed to obtain the ozone or carbon monoxide NAAQS (the subsection (a) NAAQS) by December 31, 1987, but not attach any regulatory conse­ quences to such factual determinations, 53 Fed. Reg. at 20,725; (2) EPA could unilaterally (without a request by the affected state) redesignate as nonattainment those areas that failed to attain either one of the two NAAQS, regardless of their current designations, with the redesignations imposing regulatory obligations under Part D, id. at 20,725-26; and (3) EPA could unilaterally redesignate as nonattainment only those areas that are currently designated as attainment but that in fact failed to attain the NAAQS, with the redesignations imposing regulatory Part D obliga­ tions, id. at 20,726.3The third interpretation differs from the second only “insofar as EPA would not attach ... (regulatory Part D) consequences to confirmation of the nonattainment status of areas already designated as nonattainment.” Id. at 20,726-27.

OMB subsequently took the position that only the first of the three alternatives set forth above constitutes a permissible construction of the MCA’s last sentence within the meaning of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (where a statute is silent or ambiguous as to a particular issue, and congressional intent can­ not be ascertained, a reviewing court may not disturb an agency’s “rea­ sonable” interpretation of the statutory provision in question). The EPA General Counsel’s Office disagreed, contending that all three interpreta­ tions satisfied Chevron’s “reasonableness” criterion. OMB requested that the Office of Legal Counsel resolve this dispute. See OMB Letter at 2.

II. Discussion

A. Reasonable Construction of the MCA’s Last Sentence

In order to assess this question, we first briefly examine section 107(d). Section 107(d) deals with the designation of nonattainment areas in the following fashion. For the purposes of imposing CAA regulatory obliga­ tions “under part D,” section 107(d)(1) requires each state to submit to the EPA Administrator a list of nonattainment areas, viz., a list “identify­ ing those air quality regions, or portions thereof, ... in such State which on [August 7, 1977] ” do not meet certain specified air quality standards.4 “Not later than sixty days after submittal of the list under paragraph (1) of this subsection the Administrator shall promulgate each such list with such modifications as he deems necessary. Whenever the Administrator proposes to modify a list submitted by a State, he shall notify the State and request all available data relating to such region or portion, and pro­ vide such State with an opportunity to demonstrate why any proposed modification is inappropriate.” § 107(d)(2). Moreover, “[a] State may from time to time review, and as appropriate revise and resubmit, the list required under this subsection. The Administrator shall consider and pro­ mulgate such revised list in accordance with this subsection.”

§ 107(d)(5). Finally, for management reasons, the states may from time to 3 (.. continued) preting the MCA. In other words the time limits and state participation features Judge Posner found applicable under the Clean Air Act still obtain in all cases brought under section 107(d), except that, as we discuss infra, with respect to the two NAAQS that are also the subject of the MCA, the EPA has addi­ tional unilateral authonty not subject to the time and State-mitiation requirements of section 107(d) Cf David P Cum e, A ir Pollution Federal Laio and Analysis § 6.04 at 6-12 (1981) Adoption of the third alternative interpretation should be similarly understood.

In Bethlehem Steel, the Seventh Circuit construed section 107(d)(2) as not authorizing EPA unilaterally to modify a list of state-submitted nonat­ tainment designations after the initial sixty day period following submit­ tal had run. The court found that the term “fwjhenever the Administrator proposes to modify a list submitted by a State” merely referred to EPA’s authority to modify a state’s list “in every instance” EPA might choose within the initial sixty day notification period — not as suggesting that EPA should be able to modify a list at any future point in time. 723 F.2d at 1305 (emphasis added). Nevertheless, as we discuss below, we do not believe Bethlehem Steel is dispositive of the issue whether EPA has addi­ tional unilateral authority under the MCA.

In evaluating the MCA, we start as always with the language of the statutory text. The MCA’s last sentence requires that EPA’s Administrator “make determinations with respect to which areas throughout the nation have attained, or failed to attain, either or both of’ two specified NAAQS (for ozone and carbon monoxide). In light of those determinations, the Administrator “shall evaluate air quality data and make determinations with respect to which areas throughout the nation have attained, or failed to attain, [specified NAAQS] ... and shall take appropriate steps to des­ ignate those areas failing to attain either or both of such [NAAQS] as nonattainment areas within the meaning of part D of title I of the Clean Air Act.” 101 Stat. at 1329-199 (emphasis added).

Neither the MCA nor its legislative history5 expressly addresses what is 5Two isolated congressional statements regarding the MCA’s last sentence are, under traditional norms of statutory construction, not dispositive of the statute’s meaning. First, the isolated statem ent by Representative Dingell (the only floor statement bearing directly on the MCA’s last sentence) that the MCA “make[s] a significant change in the Clean Air Act,” 133 Cong. Rec 34,026 (1987), is “entitled to little, if any, weight” in discerning legislative intent, because Representative Dingell was arguing against the MCA. Selective Serv Sys. v Minnesota Pub. Interest Research Group, 468 U.S. 841, 855-56 n.14 (1984); see National Woodwork Mfgs Ass’n v. NLRB, 386 U.S 612, 639-40 (1967), NLRB v Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U S. 58, 66 (1964); Schwegmann Bros. v. Calvert Distillers Corp , 341 U S. 384, 394-95 (1951). See also Comp. Gen Op B- 208593 6 at 5 (1988), (such comments “do not constitute an authoritative expression of congressional intent,” since his remarks were made against the MCA and “were not part of a colloquy with the amend­ ment’s sponsor”) Second, as EPA points out, Senator Mitchell’s post-enactment letter of August 5, 1988 to the EPA Administrator, “stat[ing] that the Mitchell-Conte Amendment was intended to override Bethlehem Steel and EPA’s policy permanently discharging Part D obligations upon EPA’s approval of a Part D SIP,” has “little value as legislative history ’’ Letter for Douglas W Knuec, Assistant Attorney General, Office of Legal Counsel, from Lawrence J. Jensen, General Counsel, EPA, at 4 (Jan 13,1989) (“EPA Letter”) Post­ enactment statements made by individual legislators or congressional committees lack legal force, because at best they are evidence only of what individual legislators’ intentions may have been See, e g , Regional Rad Reorganization Cases, 419 U S. 102, 132 (1974) (post-enactment statements “‘represent only the personal views of ... legislators,’” and “however explicit, [they] cannot serve to change the leg­ islative intent of Congress expressed before the Act’s passage"); 71^4 v. Hill, 437 U S. 153, 193 (1978); 2A Sutherland, Statutory Construction 48 16 (Sands ed. 1973). meant by the term “tak[ing] appropriate steps to designate,”6 and this term is not self-explanatory. Nevertheless, since no mention is expressly made of a state role in the MCA’s last sentence, since Part D — which is not premised on a state role — is expressly referenced in the MCA rather than Part A which contains the state role construed in Bethlehem Steel, and since even absent the MCA there was a reasonable argument that the EPA had unilateral authority,7 we believe it would not be unreasonable for EPA to interpret the MCA language to authorize the EPA unilaterally to “take appropriate steps” — to make nonattainment designations with respect to the two specified NAAQS without a request from the states. That the existence of unilateral EPA authority to make these specific nonattainment designations could reasonably be deemed consistent with the MCA’s last sentence is also supported by the initial part of that sen­ tence, which plainly directs EPA, on its own, to evaluate air quality data and make determinations of attainment or nonattainment. The making of unilateral nonattainment designations could reasonably be viewed as an action logically following on the heels of EPA’s evaluation of data and making of air quality determinations for the two NAAQS.

Finally, we also note that an interpretation of the MCA which authorizes EPA to make nonattainment designations unilaterally without first having to rely on action by the states avoids a constitutionally problematic result. Cf Buckley v. Valeo, 424 U.S. 1, 126, 14041 (1976) (only Officers of the United States, appointed in the manner provided for in the Appointments Clause of the Constitution, may constitutionally exercise “significant authority pur­ suant to the laws of the United States”). Accordingly, the second and third interpretations are in harmony with the principle of statutory construction that a statute should be read in a manner that avoids constitutional prob­ 6101 Stat at 1329-199 The term “nonattainment area” is, in contrast, precisely defined in the first sec­ tion of Part D of title I of the CAA, 42 U.S C § 7501(2) Accordingly, the MCA’s reference to “nonattain­ ment areas within the meaning of part D of title I” should be read as specifying that provision

We now examine EPA’s three alternative interpretations in light of the preceding discussion of the MCA’s last sentence. The first interpretation would merely require EPA to identify those areas that failed to obtain the NAAQS, without unilaterally attaching any regulatory consequences. This interpretation, which would allow EPA to notify the states of its findings that the area is one of nonattainment, comports with the understanding of section 107(d) expressed in Bethlehem Steel, under which the imposi­ tion of Part D obligations would occur only after the states had submit­ ted lists to EPA and EPA had promulgated such lists.

Under the second and third interpretations, EPA would designate areas as nonattainment — designations that would impose Part D regulatory requirements8— without first receiving lists from the states. These inter­ pretations are in harmony with the suggested interpretation of the MCA’s last sentence discussed above. Accordingly, we are of the opinion that the second and third interpretations are defensible under the Supreme Court’s Chevron standard, which calls for deference to an agency’s “rea­ sonable” interpretations of the statute it administers.9

III. Conclusion

All three of EPA’s alternative interpretations of the MCA’s last sentence are “reasonable,” within the meaning of the Supreme Court’s holding in

DOUGLAS W. KMIEC Assistant Attorney General Office of Legal Counsel