USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 92-2227
SIERRA CLUB, ET AL.,
Plaintiffs, Appellants,
v.
THOMAS D. LARSON, ET AL.,
Defendants, Appellees.
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No. 92-2323
SIERRA CLUB, ET AL.,
Plaintiffs, Appellants,
v.
THOMAS D. LARSON, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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No. 92-2282
SIERRA CLUB, ET AL.,
Petitioners,
v.
JULIE BELAGA, ETC.,
Respondent.
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PETITION FOR REVIEW OF AN ORDER
OF THE ENVIRONMENTAL PROTECTION AGENCY
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Before
Boudin, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Thomas B. Bracken with whom Bracken & Baram was on brief for
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appellants.
George B. Henderson, II, Assistant United States Attorney, with
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whom Myles E. Flint, Acting Assistant Attorney General, A. John
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Pappalardo, United States Attorney, Robert L. Klarquist, Attorney,
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Department of Justice, Michael Kenyon, Attorney, United States
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Environmental Protection Agency, Judith Tracy, Attorney, United States
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Environmental Protection Agency and Irwin Schroeder, Attorney, Federal
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Highway Administration, were on joint brief of appellees and
respondent, for federal appellees.
William L. Pardee, Assistant Attorney General, Commonwealth of
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Massachusetts, with whom Scott Harshbarger, Attorney General,
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Commonwealth of Massachusetts, was on joint brief of appellees and
respondent, for state appellees.
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August 6, 1993
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BOUDIN, Circuit Judge. In this case, the Sierra Club
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appeals from the judgment of the district court declining to
enjoin construction of the central artery/third harbor tunnel
project in Boston. It also petitions to review the action of
the Environmental Protection Agency in approving an amendment
to Massachusetts state regulations that bears upon the
project. We affirm the district court and deny the petition
for review.
I. THE FACTS AND PRIOR PROCEEDINGS
Massachusetts, through its Department of Public Works,
has begun construction of a mammoth project that includes
rebuilding a major segment of Interstate Route 93 that now
runs on a viaduct through downtown Boston and is known as
"the central artery." When the central artery/tunnel project
is completed some years from now, the highway segment in
question will be widened, sunk below ground level, and mostly
covered. It will connect at the north with a new bridge
across the Charles River and at the south with a newly built
third harbor tunnel running from South Boston to Logan
Airport in East Boston.
The depressed and covered portion of the new highway and
the tunnel will be ventilated by ducts and fans in six
buildings located on the highway route and near the tunnel
portals. Vast amounts of air will be drawn into the covered
highway and tunnel, and the mixture of air and motor vehicle
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emissions will be pumped up through the six buildings and
exhausted through stacks ranging from 90 to 225 feet high.
Studies indicate that the project will reduce traffic
congestion, increase average speeds, and reduce area-wide
carbon monoxide and hydrocarbon emissions.
The Sierra Club, a non-profit environmental group,
believes that whatever the area-wide effects of the project,
it will create new "hot spots" of pollution in certain of the
neighborhoods near to the six ventilation buildings. In its
view, pollution control equipment, in the nature of after-
burners, should be installed in the ventilation buildings.
The federal and state governments, which have filed a joint
brief in this case, deny that any dangerous hot spots will be
created, pointing to studies conducted as part of the
project's environmental review. They also assert that after-
burner technology is not feasible because of the low
concentration of pollutants in the vented air.
In March 1991, the Sierra Club and certain of its
members who live in the vicinity of the central artery
brought suit in district court against a collection of state
and federal officials associated with the project. The
gravamen of the suit was the Sierra Club's claim that the
ventilation buildings planned for the project comprised a
"major stationary source" of air pollution as that term is
used in the Clean Air Act, 42 U.S.C. 7401, et seq., and
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counterpart Massachusetts regulations, 310 C.M.R. 7.00 et
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seq. It is common ground that, if the ventilation buildings
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were so classified, then the project would require a permit
or permits from Massachusetts that have not been secured. To
frame this issue entails a brief description of the statute.
The Clean Air Act enacted a complex statutory regime,
several times amended, to control and mitigate air pollution
in the United States. Broadly speaking, Title I of the
statute regulates stationary sources of pollution and Title
II regulates mobile sources, most importantly motor vehicles.
For specified pollutants, national air quality standards are
promulgated by EPA. 42 U.S.C. 7409. Whether new
construction of polluting facilities is permitted in an area,
and what kind of controls are required, depends on whether
the area is below or above the standard for each pollutant.
Part C, 42 U.S.C. 7470-7492, governs permits where the
standard has been attained; Part D applies to so-called
nonattainment areas. Id. 7501-7515.
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In either event, the construction of a "major" new
stationary source--normally, one emitting 100 or more tons of
pollutant each year, see 42 U.S.C. 7602(j)--generally
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requires a permit. 42 U.S.C. 7475(a), 7502(c)(5).1 In
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1The definition of "major stationary source" in section
7602(j) directly governs permits under part D where the same
phrase is used in section 7502(c)(5)'s permit requirement.
Part C requires permits for specified "major emitting
facilities," in areas already in compliance with pollution
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the case of Boston, some of the pollutants that will flow
through the proposed ventilation buildings currently exceed
national standards so that new major sources are subject to
the more stringent class of limitations; other pollutants are
below the standards and less stringent limitations apply. By
way of example, the Boston area exceeds the national standard
for carbon monoxide, and to secure a permit the highway
proponents would have to show that a major stationary source
can achieve the "lowest achievable emission rate" for that
pollutant. 42 U.S.C. 7503(a)(2).
The Clean Air Act allocates different responsibilities
to the EPA on the one hand and to the states on the other.
Each state is directed to adopt and submit to EPA for
approval a state implementation plan to achieve and maintain
the national standards established by EPA. 42 U.S.C.
7410(a). See also id. 7471, 7502. If the state fails to
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adopt an approvable plan, the EPA must adopt federal
regulations for the area. 42 U.S.C. 7410(c).
Massachusetts has an approved state implementation plan.
Under the Clean Air Act, "citizen" suits may be brought to
enjoin a project that requires a permit under Parts C or D
but has not obtained one. 42 U.S.C. 7604(a)(3).
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standards, 42 U.S.C. 7475, 7479, but--with qualifications
not here relevant--the statute instructs that the terms
"major stationary source" and "major emitting facility" be
used interchangeably. 42 U.S.C. 7602(j).
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In this case, in April 1991 the Sierra Club and certain
of its members sought a preliminary injunction against
construction of the central artery and tunnel project. The
request was denied on July 30, 1991. After transfer of the
case to another judge, the district court received further
briefing and argument. On September 16, 1992, the court
granted summary judgment in favor of the government
defendants, state and federal, holding that the ventilation
buildings did not comprise stationary sources subject to pre-
construction permit requirements. The Sierra Club and its
named members appealed.
Shortly before the lawsuit, the Massachusetts Department
of Environmental Protection submitted to the EPA on
January 30, 1991, a new regulation--regulation 7.38, codified
as 310 C.M.R. 7.38--as a proposed amendment to the
Massachusetts state implementation plan. This regulation
seeks to classify tunnel ventilation systems as "indirect
sources" under the Clean Air Act. In the early 1970s, the
EPA had begun to require that state implementation plans
regulate such facilities as parking lots, highways and
garages that do not emit pollutants themselves but attract
numbers of polluting vehicles. Congress responded in 1977 by
barring the EPA from regulation of what were called "indirect
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sources." 42 U.S.C. 7410(a)(5)(B).2 However, Congress at
the same time gave the states permission, if they so chose,
to regulate such indirect sources themselves as part of their
state implementation plans. Id. 7410(a)(5)(A), (C).
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Massachusetts, exercising this option through regulation
7.38, proposed to regulate roadway/tunnel ventilation
systems as indirect sources. The regime involves
certification by the builder that specified pollution
standards will be met, and the Department of Environmental
Protection may accept, conditionally approve, or reject the
certification after notice and hearing. Monitoring after
construction and periodical renewal of the certificate are
required. The new regulation also states that the systems
are not subject to the pre-construction permitting required
for various stationary sources under regulation 7.02, 310
C.M.R. 7.02.
The Sierra Club opposed the approval of regulation 7.38
when Massachusetts submitted it to the EPA as an amendment to
the state implementation plan. The Sierra Club argued that
the effect would be indirectly to relieve the project at
issue in this case of the more stringent pre-construction
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2To the extent that a highway or other major indirect
source is federally assisted, the EPA retains some direct
regulatory authority, see 42 U.S.C. 7410(a)(5)(B); but no
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claim has been made that the project in this case is in
violation of any requirements laid down by the EPA under this
reservation.
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approval required of major stationary sources under the Clean
Air Act and the Massachusetts regulations that apply to
stationary sources. After notice and receipt of public
comments, the EPA on October 8, 1992, published notice of its
approval, 57 Fed. Reg. 46310 (1992). The Sierra Club then
petitioned for review of the EPA's action in this court
pursuant to 42 U.S.C. 7607(b)(1).
Because of the overlapping issues and common subject,
this court consolidated the two appeals taken from the
district court judgment with the proceeding for direct review
of the EPA action. In this opinion, we address first a
jurisdictional objection raised by the federal defendants,
then statutory issues posed by the appeals from the district
court, and finally the additional issues posed by the
Massachusetts regulations and by the petition to review the
EPA's action approving regulation 7.38.
II. JURISDICTION
The federal defendants renew in this court their
argument, not passed upon below, that the district court
"lacked jurisdiction" over the complaint against the federal
defendants. The "citizen suits" provision of the Clean Air
Act permits private suits in three defined classes of cases.
As already noted, it explicitly permits a private suit
against anyone who "proposes to construct" any major
stationary source without a permit required by parts C or D.
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42 U.S.C. 7604(a)(3). The federal defendants deny that
they are proposing to construct the project or any part of
it; in other words, they argue that if anyone is subject to
suitunder subsection(a)(3), itis onlyMassachusetts officials.
The statute also permits such citizen suits where
emission standards or limitations are exceeded, or where the
EPA Administrator has failed to perform an act or duty under
the Clean Air Act "which is not discretionary . . ." 42
U.S.C. 7604(a)(1), (2). As to these categories, the
federal defendants argue that any violations of emission
standards or limitations would be those of the state, and
that the EPA Administrator cannot be sued for violating a
non-discretionary duty since enforcement by the Administrator
is inherently a discretionary matter.
The Sierra Club, responds, unpersuasively, that any
jurisdictional objection has been waived by the failure of
the federal defendants to cross appeal.3 More usefully, the
Sierra Club urges that the Administrator did violate a non-
discretionary duty by failing to take action to enjoin the
project, and that in any event the Federal Highway
Administration is so closely involved in the funding and
planning of this project as to be effectively a party to its
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3The jurisdictional objection could be viewed as an
alternative ground for sustaining the denial of an
injunction, dispensing with any need for a cross appeal. In
any event, courts are expected to "notice" jurisdictional
objections even if no one has raised them.
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construction. However, like the government brief, the Sierra
Club's brief is silent as to what practical implications
these questions have in this case where no one has disputed
that Massachusetts defendants can be enjoined from
construction if a permit is required.
Absent some showing that the jurisdictional issue has
practical importance in this case, we decline to address it.
Since the Massachusetts officials are subject to suit for
constructing the project without a permit, the merits must be
reached in any event. And since we resolve the merits in
their favor, the jurisdictional issue as to the federal
defendants is pretty close to moot, affecting only the form
of the dismissal as to them. There is ample precedent for
by-passing jurisdictional objections when the court can more
easily dismiss on the merits. E.g., Norton v. Mathews, 427
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U.S. 524, 532 (1976).
III. THE STATUTORY ISSUES
The merits of the appeals from the district court
judgment turn principally on a narrow point of statutory
construction, namely, whether the ventilation buildings that
will vent the underground highway and harbor tunnel comprise
a "stationary source or sources" within the meaning the Clean
Air Act. If so labeled, a permit is required; apparently the
amount of pollutant needed to qualify as a "major" source is
not at issue. Easily stated, the issue is less easily
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resolved: there is little by way of statutory definition, no
useful judicial precedent or legislative history offered to
us, and a reasonable possibility that Congress never gave any
thought to the idiosyncracy posed by these ventilation
buildings.
Starting as one normally does with language, parts C and
D, which contain the pre-construction permit requirements for
major stationary sources, originally contained no definition
of stationary source. Instead part D defines a "major
stationary source" as "any stationary facility or source"
emitting the specified quantity of pollutant. Part C, by
cross-reference (see note 1, above), adopts the same
language. Part A, concerned with so-called performance
standards, other than air quality standards, did use the term
"stationary source" in 42 U.S.C. 7411, defining it as "any
building, structure, facility, or installation which emits or
may emit any air pollutant." 42 U.S.C. 7411(a)(3). That
definition, however, was adopted "for purposes of this
section," i.e., section 7411.4
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4The obscurity of the relationship between the part A
definition just quoted and the "major stationary source" in
parts C and D was the subject of comment by the Supreme Court
in Chevron U.S.A., Inc. v. Natural Resources Defense Council,
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Inc., 467 U.S. 837, 859-860 (1984). Yet another definition
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of stationary source appears in, and is apparently limited
to, a provision of part A concerned with accidental release
of hazardous substances. See 42 U.S.C. 7412(r)(2)(C).
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Thus far the breadth of the language appears helpful to
the Sierra Club position, since linguistically a ventilation
system with a stack could be called a "facility," a "source"
or even a "building." The table tilted back the other way in
1977 when Congress amended the Clean Air Act to exclude
"indirect sources" from mandatory coverage in state
implementation plans. 42 U.S.C. 7410(a)(5)(A). An
indirect source is defined in the statute as
a facility, building, structure, installation, real
property, road, or highway which attracts, or may
attract, mobile sources of pollution. Such term
includes parking lots, parking garages, and other
facilities subject to any measure for management of
parking supply . . . .
42 U.S.C. 7410(a)(5)(C). Asserting that auto makers should
bear the brunt of reducing tailpipe emissions, Congress
imposed the limitations already described on the EPA efforts
to regulate the magnets for vehicles rather than the vehicles
themselves. See H.R. Rep. No. 294, 95th Cong., 1st Sess.
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219-227 (1977).
Although indirect sources are not in terms excluded from
the definition of stationary sources--the former provision is
cast instead as a limitation on EPA authority--the effect of
the amendment is to treat indirect sources as a separate
category of sources subject to a different legal regime. The
states may still "choose[]" to regulate them in state
implementation plans, 42 U.S.C. 7410(a)(5)(i), but the
decision whether and how to regulate is left largely to the
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states. Our best reading of the statute is that, at least
after 1977, an indirect source is not to be treated as a
stationary source under Parts C and D. Cf. South Terminal
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Corp. v. EPA, 504 F.2d 646, 669 (1st Cir. 1974) ("parking
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structures, which themselves emit no pollutants but instead
only attract vehicles which emit pollution, are not
stationary sources").
Assuming that a stationary source and an indirect source
are exclusive categories, the difficult question remains
whether ventilation buildings should be assimilated to the
former or to the latter. It is a question that dictionaries
cannot answer. The terms are technical rather than common
ones, and they were developed against the background of a
complex statute with interlocking provisions and specific
goals. Nor does legislative history furnish any clue as to
Congress' intent for ventilation buildings. Perhaps this
small corner among possible applications of the statute was
simply overlooked.
Similarly, it is difficult to derive any clear cut
answer from analogy or policy.5 A covered highway or tunnel
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5The Sierra Club urges that the definition of stationary
source is analogous to the definition of "point source", 33
U.S.C. 1362(14), in the Clean Water Act and that we should
regard the related caselaw as precedent. See National
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Wildlife v. Gorsuch, 693 F.2d 156, 173-174 (D.C. Cir. 1982).
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We find little help from a different term used in a different
statutory scheme. Nor do we think that it matters whether,
as the Sierra Club asserts, pollution tests or projections
done by engineers for the ventilation systems are akin to
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with a ventilation system is akin to an uncovered highway or
open sided garage--clearly, indirect sources--in multiple
senses: in each instance the facility or space attracts more
cars, pollution in the vicinity may be greatly increased, and
the initial source of the pollution is the cars themselves.
On the other hand, the possibility exists (no information has
been provided to us on the point) that the large scale
ventilation systems may be more potent than a highway or
garage in concentrating and expelling pollutants in a
specific area; and on this ground, if no other, one might
distinguish between them and a facility that is ordinarily
ventilated without mechanical aid. Thus the analogy hardly
dispels all doubt.
Two other arguments pressed by the parties seem to us
inconclusive. The Sierra Club points us to a new provision,
added to Title I in 1990 without limitation as to its
application, which for the first time defines stationary
source as meaning "generally any source of an air pollutant
except those emissions resulting directly from an internal
combustion engine for transportation purposes or from a
nonroad engine or nonroad vehicle as defined in section 7550
. . . ." 42 U.S.C. 7602(z). The Sierra Club stresses the
word "directly," arguing that the emissions from the
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those done for stationary sources; presumably, they would
also be similar if the system vented a large garage, which is
unquestionably an indirect source.
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ventilation shaft do not fit the "except" clause because the
auto emissions are emitted first ("directly," in the Sierra
Club's view) into the air of the covered highway or tunnel
andonly thengatheredbyfansand spewedoutthroughtheventilators.
The government brief offers its own parsing of this new
language, but both sides' arguments about what is "direct"
and what is an "indirect" emission have the flavor of a
Medieval dispute in theology. The reality is that Congress
framed this new subsection (z) to deal with an entirely
different problem, namely, to include within the stationary
source definition mobile sources of pollution, like ships in
port and portable asphalt concrete plants, so far as they
emit pollutants as part of their stationary activities, e.g.,
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by leaking fuel at dockside (in contrast to engine emissions
that occur when the ship or plant travels to a new
destination). S. Rep. No. 228, 101st Cong., 1st Sess. 376
(1990). In other words, Congress was not addressing tunnel
ventilation when it drew up this new provision.
Conversely, we are doubtful about the government's
argument based upon the structure of the statute.
Admittedly, Congress did establish two different regimes:
that in Title I, with which we are concerned, governed
stationary sources; that in Title II created a quite
different regime, part of which is familiar to anyone who has
a car inspected, to regulate vehicle emissions directly.
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This symmetry could suggest that tailpipe pollution--the
source of the pollutants at issue here--was not meant to fall
within Title I at all. The difficulty is that Congress might
not have minded two layers of control, and contrivances like
the "indirect source" provision in Title I blur the notion
that auto pollution is exclusively a Title II problem.
In the end, we think the balance is tipped here by the
explicit administrative interpretation of the Clean Air Act
adopted by the EPA. In approving the addition of regulation
7.38 to Massachusetts' state implementation plan, the EPA
stated:
Tunnel ventilation systems, which do not generate
their own emissions but rather simply funnel
emissions from mobile sources, are not stationary
sources within the meaning of the Clean Air Act.
57 Fed. Reg. 46310, 46311 (1992). The Supreme Court has told
us that in construing a statute the courts should ordinarily
show a measure of deference to the agency charged with
administering the statute.6 The case most often cited for
that precept is Chevron, which involved a different
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application of the very same "stationary source" provision
that is now before us.
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6See Environmental Protection Agency v. National Crushed
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Stone Ass'n, 449 U.S. 64, 83 (1980); Chevron, U.S.A., Inc. v.
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Natural Resources Defense Council, Inc., 467 U.S. 837 (1984);
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United States v. City of Fulton, 475 U.S. 657, 666 (1986);
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National Labor Relations Board v. Food and Commercial Workers
______________________________ ___________________________
Union, 484 U.S. 112, 123 (1987).
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The Chevron doctrine has been the subject of much debate
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and, in subsequent decisions, the Supreme Court may have
softened its impact somewhat and in some situations. See,
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e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987). To
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be sure, the courts have the last word on statutory
interpretation--the question is one of the weight to be
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accorded to agency views--and often the statute's language or
history leaves no latitude for the agency. In other cases
the issue of interpretation may be so central to the
operation of the statute that, whether or not Congress'
meaning is clear, it is improbable that Congress meant for
the courts to defer to the agency. We do not think these or
other qualifications on Chevron deflect its impact here.
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On the contrary, this statute is ambiguous on the issue
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before us, at least when the words "stationary source" are
read together with the "indirect source" proviso and the
structural juxtaposition of Titles I and II. The
application of the stationary and indirect source language to
tunnel ventilation is not the heart of the statute but a
fringe issue on which Congress did not clearly express its
intent. The Clean Air Act is an immensely complex and
technical statute more familiar to EPA than to anyone else,
and the task of making its parts function together
harmoniously is entrusted to many actors but above all to the
EPA.
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In sum this is a case in which Chevron and deference to
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the agency are not make-weights or subsidiary arguments.
Rather, in this fairly debatable case, where statutory
language is ambiguous, legislative history is silent and
policies and analogies can be and have been mustered on both
sides, we think that the EPA's unqualified and precise
reading is decisive. It is unnecessary to calibrate
perfectly the weight to be accorded to the agency view in a
case of this species: once "considerable" weight is accorded
to EPA's reading of the statute, see Chevron, 467 U.S. at
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844, it is enough to tip a set of scales otherwise so closely
balanced.
IV. THE MASSACHUSETTS REGULATIONS AND EPA APPROVAL
Our concern with the district court case is not quite
over. Even if Congress did not designate the ventilation
facilities in this case as stationary sources, the
possibility remains that Massachusetts has adopted in its
state implementation plan--and then sought to ignore for its
own construction project--pertinent legal restrictions that
can be implemented through a suit under the Clean Air Act.
Of course, not every state-law restriction on a project is a
matter of federal concern, but a state restriction that is
part of a federally approved state implementation plan under
the Clean Air Act may at least in some circumstances be
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within the purview of a citizens suit under 42 U.S.C. 7604.
At one point in its brief, the Sierra Club seems to
argue that whatever Congress may have meant by stationary
source, Massachusetts in its general permit requirement
regulation 7.02, 310 C.M.R. 7.02, has required pre-
construction approval of a class of facilities that includes
the ventilation buildings in this case. One version of
regulation 7.02 has been approved by EPA as part of
Massachusetts' state implementation plan. Although
Massachusetts has adopted a later version not yet approved,
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we will assume arguendo that the original, approved version
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of the regulation still exists as a matter of federal law and
that a violation of this version might well be remedied by a
citizen suit under the federal statute.7
The difficulty with the Sierra Club's argument, as the
government brief points out, is that this regulation on its
face applies to a short list of specific facilities (e.g.,
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chemical products manufacturing plants) that do not include
highways, tunnels or associated ventilation systems. The
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7The Sierra Club also argues that the more recent
version of regulation 7.02 applies to the project (or would,
if not invalidly qualified by regulation 7.38); but we need
not decide whether the more general language of the new
version could embrace highway and tunnel ventilation systems.
The new version does not reflect a federally approved
requirement, nor do we think that it casts any light upon, or
represents an exercise of authority under, the older version.
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regulation also applies to "such other facilities as the
[state] Department [of Environmental Protection] may
require," but that state agency has not required pre-
construction review of the ventilation buildings under this
version of the regulation. The most that the Sierra Club can
extract from the affidavit submitted by the head of the
agency is that his agency wobbled over the issue of how to
regulate the ventilators at issue in this case, and finally
decided to propose the "indirect source" regime now embodied
in regulation 7.38.
Regulation 7.38 which now governs tunnel ventilation
systems says that they are not subject to regulation 7.02.
We think that this exclusion seeks to remove ambiguity and is
very weak evidence that the new version of regulation 7.02
would otherwise cover such systems, and no evidence at all of
the meaning of the old version. Nor do we agree with the
Sierra Club that its reading of old regulation 7.02 is borne
out by Town of Brookline v. Commissioner of the Department of
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Environmental Quality Engineering, 387 Mass. 372, 439 N.E.2d
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372 (1982). That case involved the application of regulation
7.02 to a diesel fuel-powered facility (in fact, an
electrical generating station), which is listed as a facility
automatically covered by old regulation 7.02.
To construe the old version of regulation 7.02
definitively is a daunting task, for it was complex, ill-
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structured, and apparently confusing even to the state agency
that administered it. But the Sierra Club's argument depends
upon a showing by it that the old regulation 7.02 did govern
highway and tunnel ventilation systems. Such systems do not
fall within the list of specifically named facilities in the
regulation. Similarly, the Sierra Club has not shown that
the state agency ever extended that version of the regulation
to such systems under the "may require" clause.
This brings us to the attack on regulation 7.38 that is
the subject of Sierra Club's direct review petition. One
might at first wonder why the Sierra Club is interested in
overthrowing a regulation which, if less stringent than the
pre-construction permit requirement for major stationary
sources, is at least a sizable step in the direction of
regulating ventilation systems, a step that the state need
not take at all if--as the EPA has ruled--such systems are
not stationary sources but merely adjuncts to indirect
sources. Indeed, the EPA's notice approving the new
regulation notes that the Conservation Law Foundation
endorsed it. 57 Fed. Reg. 46310, 46311 (1992).
The answer is that the Sierra Club, with considerable
imagination, has constructed the following argument: the 1990
amendments to the Clean Air Act contained a savings clause
that sought to forbid states from softening pre-amendment
"control requirement[s]" in areas that had not attained the
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national air quality standard for a pollutant, 42 U.S.C.
7515; the Boston area has admittedly not met these standards
for certain pollutants; and therefore (says the Sierra Club)
regulation 7.38 is in violation of the savings clause because
it substitutes as to tunnel ventilation systems the softer
regime of the new regulation 7.38 for the more stringent,
previously applicable regime of regulation 7.02.
We will assume without deciding that the savings clause
would prevent the weakening of a state implementation plan.
But even so we do not read the savings clause to refer to
anything other than an effective, federally approved state
implementation plan.8 It is the older version of regulation
7.02 which alone was federally approved at the time of the
1990 Clean Air Act Amendments. And, as already explained,
the Sierra Club has failed to establish that the pertinent
older version of regulation 7.02 did apply to covered highway
or tunnel ventilation systems. Accordingly, regulation 7.38
____________________
8As Senator Chafee explained in the floor debate on this
provision:
"The savings provision was intended to
ensure that there is no backsliding on
the implementation of adopted and
currently feasible measures that EPA has
approved as part of a State
implementation plan in the past, or that
EPA has added to State plans on its own
initiative or pursuant to a court order
or settlement."
136 Cong. Rec. S17,237 (daily ed., October 26, 1990).
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does not weaken a federally approved state implementation
plan but rather strengthens it by extending a new regime to
such ventilation systems where previously no federally
approved regime applied at all.
We are left with two further arguments in relation to
regulation 7.38. First, it is claimed that regulation 7.38
is invalid because, according to the Sierra Club, the state
was required by M.G.L. ch. 111, 142A, to obtain the
approval of the Governor of Massachusetts and the Executive
Council but did not do so. This argument was made, it
appears, on the premise that regulation 7.38 was needed by
the government defendants in order to remove a bar otherwise
presented by regulation 7.02. As we have seen, the premise
is mistaken, and invalidating regulation 7.38 would probably
free the ventilation systems from any federally enforceable
regulation.
Nevertheless, the issue of governor-and-council
approval, although irrelevant to the injunction action, is
raised by the Sierra Club's petition to review EPA's approval
of the new regulation. Since the direct review statute has a
time limit on petitions, 42 U.S.C. 7607(b)(1), we cannot
properly defer decision on the validity of regulation 7.38 to
some future point. Indeed, EPA in approving the regulation,
noted that Massachusetts' Secretary of State had attested
that the regulation was properly adopted, and EPA itself
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ruled that the Massachusetts Department of Environmental
Protection had authority "to adopt such regulations without
approval by the Governor and Council." 57 Fed. Reg. at
46312.
It is difficult for anyone but a Massachusetts court to
pronounce with certainty on this issue. But when the
regulation is attested by the state secretary as validly
adopted and its procedural validity is supported in a brief
signed by the state's attorney general, it would take a
rather strong showing to persuade us to hold that the
regulation is invalid on procedural grounds. Assuming (as
seems likely) that its procedural validity is open to review
in this court and that the state secretary's attestation is
necessary but not conclusive,9 we think that EPA correctly
concluded that the regulation was properly adopted without
the approval of governor and council.
The state in submitting regulation 7.38 to the EPA said
that it was adopted pursuant to M.G.L. ch. 111, 142B and
142D, not section 142A. Section 142B establishes a Boston
area pollution control district and gives the Department of
Environmental Protection authority to issue rules and
regulations to prevent pollution in the district. Regulation
____________________
9The Clean Air Act requires a state to provide
"necessary assurances" that it has authority under state law
to carry out the implementation plan. 42 U.S.C.
7410(a)(2)(E)(i).
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7.38, which is directed exclusively to the Boston district,
appears to fit comfortably within the ambit of section 142B.
The rulemaking provision of section 142B, unlike section
142A, contains no requirement for approval of rules by the
state's governor or council.
The Sierra Club's contrary argument is based on
confusing language in M.G.L. ch. 111, 142A, a broader
provision governing air pollution in general. In its opening
sentence, this section says that the Department of
Environmental Protection, "in this section and in sections
one hundred and forty-two B to one hundred and forty-two E,
inclusive, hereinafter called the department" may subject to
the approval of the governor and council adopt regulations to
control pollution. Id. The Sierra Club apparently reads
___
this sentence as extending the governor-and-council approval
requirement of section 142A to rules made under section 142B.
We think the more natural reading of the quoted language
in section 142A is to specify that the term "department,"
when used without further explanation in the cited later
sections, means the Department of Environmental Protection.
Section 142B, for example, does refer only to "the
department." Nor is there anything remarkable about
requiring governor-and-council approval for general
regulations while not doing so for those directed to a single
district; indeed, the Sierra Club reading would make the
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grant of rulemaking power in section 142B redundant.
Accordingly, we reject this challenge to the EPA's approval
and dismiss the petition to review.
The government brief construes the Sierra Club's
argument to embrace, in addition to the claim just rejected,
a further claim that regulation 7.38 cannot be applied
"retroactively" to the central artery and tunnel at issue in
this case. The regulation by its terms is intended to apply
to the project. See 310 C.M.R. 7.38(1). In response the
___
government argues at length that under Massachusetts law
whatever retroactivity may be involved in applying the new
regime to a previously planned but unbuilt portion of a
project is permissible.
It is not entirely clear that the Sierra Club is making
the argument attributed to it by the government. However
this may be, the EPA did not suggest that its approval of the
regulation depended on how or whether it would be applied to
existing projects; the EPA's notice of approval does not
discuss retroactivity at all. There is no reason to suppose
that EPA's approval is at all dependent on the retroactivity
issue. We have no need, in fact no warrant, to decide an
issue that is not material either to the district court
judgment nor to the validity of the EPA action that is the
subject of the petition to review.
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The judgment of the district court is affirmed. The
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petition for review is denied.
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