National Resource Defense Counsel, Inc.,
467 U.S. 837; 104 S. Ct. 2778; 81 L. Ed. 2d 694 (1984)
Respondents, National Resource Defense Counsel, Inc., (hereinafter “Respondents”) filed a petition with the Court of Appeals to review a decision of the Environmental Protection Agency (hereinafter “Petitioners”) under the Clean Air Act of 1977.
The Clean Air Act Amendments of 1977 impose certain requirements on States that have not achieved the national air quality standards established by the Environmental Protection Agency (EPA) pursuant to earlier legislation, including the requirement that such "nonattainment" States establish a permit program regulating "new or modified major stationary sources" of air pollution. Generally, a permit may not be issued for such sources unless stringent conditions are met. EPA regulations promulgated in 1981 to implement the permit requirement allow a State to adopt a plant wide definition of the term "stationary source," under which an existing plant that contains several pollution-emitting devices may install or modify one piece of equipment without meeting the permit conditions if the alteration will not increase the total emissions from the plant, thus allowing a State to treat all of the pollution-emitting devices within the same industrial grouping as though they were encased within a single "bubble." 1
Respondents filed a petition for review in the Court of Appeals,2 which set aside the regulations embodying the "bubble concept" as contrary to law.3 Although recognizing that the amended Clean Air Act does not explicitly define what Congress envisioned as a "stationary source" to which the permit program should apply, and that the issue was not squarely addressed in the legislative history, the court concluded that, in view of the purpose of the nonattainment program to improve rather than merely maintain air quality, a plant wide definition was "inappropriate," while stating it was mandatory in programs designed to maintain existing air quality.
Is the “bubble concept” appropriate in regulations to improve air quality as it is in programs to maintain air quality under the Clean Air Act of 1977?
No, the “bubble concept” was held not to be applicable to EPA regulations to improve air quality as it is to maintain air quality under the Clean Air Act of 1977.
The legislative history of the portion of the 1977 Amendments dealing with nonattainment areas does not contain any specific comment on the "bubble concept" or the question whether a plant wide definition of a stationary source is permissible under the permit program. It does, however, plainly disclose that in the permit program Congress sought to accommodate the conflict between the economic interest in permitting capital improvements to continue and the environmental interest in improving air quality. Indeed, the House Committee Report identified the economic interest as one of the "two main purposes" of this section of the bill. It stated:
"Section 117 of the bill, adopted during full committee markup establishes a new section 127 of the Clean Air Act. The section has two main purposes: (1) to allow reasonable economic growth to continue in an area while making reasonable further progress to assure attainment of the standards by a fixed date; and (2) to allow States greater flexibility for the former purpose than EPA's present interpretative regulations afford.”
"The power of an