State of Vermont, Conservation Law Foundation of New England, Inc., and Vermont Natural Resources Council v. Lee Thomas, Administrator, United States Environmental Protection Agency and the United States Environmental Protection Agency, and Alabama Power Company, Intervenors

Citations: 850 F.2d 99; 18 Envtl. L. Rep. (Envtl. Law Inst.) 21207; 27 ERC (BNA) 2177; 1988 U.S. App. LEXIS 8676Docket: 872

Court: Court of Appeals for the Second Circuit; June 23, 1988; Federal Appellate Court

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Petitioners, consisting of the State of Vermont, the Conservation Law Foundation of New England, Inc., and the Vermont Natural Resources Council, sought judicial review of the Environmental Protection Agency's (EPA) decision to take "no action" regarding Vermont's state implementation plan (SIP) on regional haze, as outlined in the Clean Air Act. The court, presided over by Circuit Judges Meskill and Altimari and District Judge Mishler, upheld the EPA's ruling, concluding that current regulations do not provide federally enforceable measures to address regional haze. 

The Clean Air Act, established to combat air pollution, mandates the EPA to set national ambient air quality standards and for states to adopt SIPs to comply with these standards. The Act emphasizes a collaborative approach between state and federal authorities in controlling regional air pollution. Additionally, the 1977 amendments to the Act focused on protecting visibility in designated "class I Federal areas," which include specific national parks and wilderness areas, recognizing their aesthetic significance. Congress established a national goal to prevent and remedy visibility impairment caused by man-made pollution in these areas and tasked the EPA with providing states guidance to achieve reasonable progress toward this visibility enhancement goal.

The EPA, under section 169A of the Act, established regulations in 1980 aimed at achieving national visibility goals by implementing a phased approach to visibility protection. The regulations identified two types of visibility impairment: plume blight, which is identifiable and controllable, and regional haze, which poses more complex scientific challenges. Phase I focused on plume blight while Phase II would later address regional haze as scientific monitoring improved.

The 1980 regulations mandated 36 states with class I areas to revise their state implementation plans (SIPs) to ensure reasonable progress toward visibility goals, requiring a long-term strategy for each class I area. In April 1986, Vermont submitted its SIP for the Lye Brook National Wilderness Area, its only class I area, highlighting significant visibility impairment due to sulfur dioxide pollution from out-of-state sources, particularly from eight upwind states. The plan proposed a federally enforceable long-term strategy, including a summertime sulfate standard and a comprehensive emissions reduction plan for the 48 states, aiming to meet air quality standards by 1995. Vermont also requested the EPA to disapprove the SIPs of the eight contributing states and to include four additional states without class I areas in the visibility planning requirements.

In December 1986, the EPA proposed a ruling on Vermont’s State Implementation Plan (SIP), acknowledging that visibility impairment at Lye Brook was primarily due to out-of-state sulfur dioxide emissions. However, the EPA chose to take "no action" on Vermont's regional haze measures, citing the absence of established EPA requirements for such strategies. By July 1987, the EPA issued a final ruling that approved limited aspects of Vermont’s SIP related to plume blight regulations but again declined to act on regional haze controls. The EPA also rejected Vermont's requests to disapprove the SIPs of eight upwind states and to add four additional states to the visibility protection plan requirements. The agency determined that Vermont's proposed sulfate standard and emissions reduction strategy were outside its regulatory scope and could not be federally enforceable until a national regional haze program was established.

Subsequently, petitioners sought a review of the EPA's ruling, arguing that the denial of Vermont's comprehensive SIP approval contravened both EPA regulations and the Clean Air Act. They claimed that the existing regulations allowed for measures to address regional haze, contending that the EPA's interpretation was inconsistent with the Clean Air Act's objectives. The court noted that its review of the EPA's actions is limited and that it must defer to the EPA's interpretations, especially concerning its own regulations, unless the petitioners could prove that the EPA's decision was plainly unreasonable.

Section 169A of the Clean Air Act mandates that the EPA require states with class I areas to adopt long-term strategies through State Implementation Plans (SIPs) to ensure reasonable progress towards national visibility goals. In 1980, the EPA established regulations requiring each SIP to include strategies to remedy existing and prevent future visibility impairment in these areas. Vermont argues that its strategy for addressing regional haze falls under these 1980 regulations and should be approved by the EPA. However, the EPA contends that these regulations do not encompass regional haze impairment, arguing that such measures are not mandated by section 169A and cannot be part of a federally enforceable SIP.

The EPA supports its interpretation by referencing the preamble of the 1980 regulations, which outlines a phased approach to visibility protection, indicating that initial phases target impairment traceable to specific facilities, while later phases will address more complex issues like regional haze. Although petitioners acknowledge that regional haze was deferred for future phases, they assert that the regulations were intended to evolve with technological advancements to combat regional haze. The court rejects this view, clarifying that while the regulations anticipated long-term strategies for regional haze, they do not authorize states to implement such measures through federally enforceable SIPs.

The court emphasizes that the regulatory framework does not support the plain meaning argument to include regional haze, citing the need to consider the preamble for a comprehensive understanding of the regulations' intent. Ultimately, the court concludes that the EPA intended to restrict the 1980 regulations to address plume blight specifically.

Petitioners argue that the Clean Air Act requires states to establish visibility protection standards for "reasonable progress" towards national visibility goals, even without specific EPA regulatory guidelines on regional haze. While states implement these measures, Congress assigned the EPA the authority to ensure compliance with national goals through rulemaking. Consequently, Vermont's proposed interstate measures are not federally enforceable due to the lack of EPA rulemaking on regional haze, leading to the appropriateness of EPA's "no action" response regarding Vermont's state implementation plan (SIP). Petitioners claim this ruling denies Vermont a clear decision on its proposal and violates section 110 of the Act, which mandates EPA to approve or disapprove proposed SIPs. However, previous rulings indicate that the Clean Air Act allows for reasonable EPA actions beyond strict approval or disapproval.

EPA's ruling effectively prevents Vermont's measures from being included in a federally enforceable SIP, aimed at avoiding premature judgments on their approvability and clarifying their enforceability under state law. Vermont retains the option to adopt stricter air quality standards than federal law requires. Without federal enforcement, Vermont faces challenges in addressing regional haze at Lye Brook, as it cannot impose its standards on upwind states. The EPA's denial of Vermont's request to disapprove the SIPs of upwind states and its refusal to expand the requirement for regional haze programs to additional states aligns with federal law.

Despite a lack of a national program for regional haze over a decade after section 169A's enactment, the court acknowledges the petitioners' concerns. It suggests that Vermont may seek alternative remedies through a petition for rulemaking to the EPA, with potential judicial review. The court concludes that the issues raised are more suited for national rulemaking rather than the SIP approval process, ultimately denying the petition for review.