Although § 118 of the Clean Air Act obligates federal
installations discharging air pollutants to join with nonfederal
facilities in complying with state "requirements respecting control
and abatement of air pollution," obtaining a permit from a State
with a federally approved implementation plan is not among such
requirements. There cannot be found in § 118, either on its face or
in relation to the Act as a whole, nor can there be derived from
the legislative history of the Clean Air Amendments of 1970, any
clear and unambiguous declaration by Congress that such federal
installations may not operate without a state permit. Nor can
congressional intention to submit federal activity to state control
be implied from the claim that under the State's federally approved
plan it is only through the permit system that compliance schedules
and other requirements may be administratively enforced against
federal installations. Pp. 178-199.
497 F.2d 1172, affirmed.
WHITE, J., delivered the opinion of the Court in which BURGER,
C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ.,
joined. STEWART and REHNQUIST, JJ., filed a dissenting statement,
post, p.
426 U. S.
199.
Page 426 U. S. 168
MR. JUSTICE WHITE delivered the opinion of the Court.
The question for decision in this case is whether a State whose
federally approved implementation plan forbids an air contaminant
source to operate without a state permit may require existing
federally owned or operated installations to secure such a permit.
The case presents an issue of statutory construction requiring
examination of the Clean Air Act, as amended, 42 U.S.C. § 1857
et seq., and its legislative history in light of
established constitutional principles governing the determination
of whether and the extent to which federal installations have been
subjected to state regulation. [
Footnote 1] The specific question is whether obtaining a
permit to operate
Page 426 U. S. 169
is among those "requirements respecting control and abatement of
air pollution" with which existing federal facilities must comply
under § 118 of the Clean Air Act. [
Footnote 2]
Last Term, in
Train v. Natural Resources Defense
Council, 421 U. S. 60
(1975), we reviewed the development of federal air pollution
legislation through the Clean Air Amendments of 1970 (Amendments),
[
Footnote 3] and observed that,
although the Amendments "sharply increased federal authority and
responsibility in the continuing effort to combat air pollution,"
they "explicitly preserved the principle" that "
[e]ach State
shall have the primary responsibility for assuring air quality
within the entire geographic area comprising such State . . . ,'"
id. at 421 U. S. 64,
quoting from § 107(a) of the Clean Air Act, as added, 84 Stat.
1678, 42 U.S.C. § 1857c-2(a). Consistently with this principle, the
Amendments required that, within nine months after the
Environmental Protection Agency (EPA) promulgated the primary and
secondary ambient air quality standards required by § 109(a) of the
Clean Air Act, as added, 84 Stat. 1679, 42 U.S.C. § 1857c-4(a),
[Footnote 4] for certain air
pollutants, [Footnote 5] each
State submit to the EPA a plan by which it would implement and
maintain those standards within its territory. § 110(a)(1) of the
Clean Air Act, as added, 84 Stat. 1680, 42 U.S.C. § 1857c-5(a)(1).
See 40 CFR pt. 51 (1975). The EPA was required to approve
each State's
Page 426 U. S. 170
implementation plan as long as it was adopted after public
hearings and satisfied the conditions specified in § 110(a)(2).
For existing sources, [
Footnote
6] the State must propose "emission limitations, schedules, and
timetables for compliance with such limitations" necessary to meet
the air quality standards. § 110(a)(2)(b). As we observed in
Train, supra at
421 U. S. 779,
given the EPA's nationwide air quality standards, the State is to
adopt a plan setting
"the specific rules to which operators of pollution sources are
subject, and which, if enforced, should result in ambient air which
meets the national standards."
"[The EPA] is relegated by the Act to a secondary role in the
process of determining and enforcing the specific, source-by-source
emission limitations which are necessary if the national standards
it has set are to be met. . . . The Act gives [the EPA] no
authority to question the wisdom of a State's choices of emission
limitations if they are part of a plan which satisfies the
standards of § 110(a)(2). . . . Thus, so long as the ultimate
effect of a State's choice of emission limitations is compliance
with the national standards for ambient air, the State is at
liberty to adopt whatever mix of emission limitations it deems best
suited to its particular situation."
(Footnote omitted.)
Along with increasing federal authority and "taking a stick to
the States" [
Footnote 7] by
requiring them to implement the
Page 426 U. S. 171
federal standards promulgated pursuant to that authority,
Congress also intended the Amendments "to strengthen the strictures
against air pollution by federal facilities." [
Footnote 8] Before 1970, § 111(a) of the Clean Air
Act simply declared "the intent of Congress" to be that federal
installations
"shall, to the extent practicable and consistent with the
interests of the United States and within any available
appropriations, cooperate with"
federal and state air pollution control authorities "in
preventing and controlling the pollution of the air in any area
insofar as the discharge of any matter from or by such" federal
installation "may cause or contribute to pollution of the air in
such area." [
Footnote 9]
Experience with performance by federal sources of air pollution
under this voluntary scheme [
Footnote 10] led the Congress to conclude that
admonishing federal agencies to prevent and control air pollution
was inadequate because, "[i]nstead of exercising leadership in
controlling or eliminating air pollution," [
Footnote 11] "Federal agencies have been
notoriously laggard in abating pollution." [
Footnote 12] Both to provide the leadership to
private industry and to abate violations of air pollution standards
by federal facilities, in 1970, Congress added § 118 to the Clean
Air Act. The first sentence of the section provides:
"Each department, agency, and instrumentality of the executive,
legislative, and judicial branches of
Page 426 U. S. 172
the Federal Government (1) having jurisdiction over any property
or facility, or (2) engaged in any activity resulting, or which may
result, in the discharge of air pollutants, shall comply with
Federal, State, interstate, and local requirements respecting
control and abatement of air pollution to the same extent that any
person is subject to such requirements."
42 U.S.C. § 1857f. The remainder of § 118 authorizes the
President, upon a determination that it is "in the paramount
interest of the United States to do so," and subject to several
limitations, to exempt certain federal emission sources from
"compliance with such a requirement." [
Footnote 13]
After enactment of § 118, there is no longer any question
whether federal installations must comply with established air
pollution control and abatement measures. The question has become
how their compliance is to be enforced.
II
In February, 1972, Kentucky submitted its implementation plan to
the EPA. On May 31, 1972, the plan was approved by the
Administrator in relevant part. [
Footnote 14] Chapter 7 of the plan included Kentucky Air
Pollution Control Commission (Commission) Regulation No. AP-1, §
5(1), which provides:
"No person shall construct, modify, use, operate, or maintain an
air contaminant source or maintain
Page 426 U. S. 173
or allow physical conditions to exist on property owned by or
subject to the control of such person, resulting in the presence of
air contaminants in the atmosphere, unless a permit therefor has
been issued by the Commission and is currently in effect. [
Footnote 15]"
An applicant for a permit must complete a form supplied by the
Commission and,
"when specifically requested by the Commission, include an
analysis of the characteristics, properties, and volume of the air
contaminants based upon source or stack samples of the air
contaminants taken under normal operating conditions. [
Footnote 16]"
The process of review of the application may include hearings.
[
Footnote 17] Permits are
denied if the applicant does not supply the "information required
or deemed necessary by the Commission to enable it to act upon the
permit application," [
Footnote
18] or when "the air contaminant source will prevent or
interfere with the attainment or maintenance of state or federal
air quality standards." [
Footnote 19] When granted, a permit may be
"subject to such terms and conditions set forth and embodied in
the permit as the Commission shall deem necessary to insure
compliance with its standards. [
Footnote 20]"
Once issued, a permit may be revoked or modified for failure to
comply with the terms and conditions of the permit, with emission
standards applicable to the air contaminant source, or with the
Page 426 U. S. 174
ambient air standards for the area in which the air contaminant
source is located. Reg. AP-1, § 5(5), CA App. 122.
Soon after the implementation plan was approved, a Commission
official wrote to numerous officials responsible for various
Kentucky facilities of the United States Army, [
Footnote 21] of the Tennessee Valley
Authority (TVA) [
Footnote
22] and of the Atomic Energy Commission (AEC) [
Footnote 23] requesting that they apply for
and obtain permits as requested by the EPA-approved plan. The
responses to these requests were to the effect that federally owned
or operated facilities located in Kentucky were not required to
secure an operating permit. Each response, however, either offered
to or did supply the information and data requested on the standard
permit application form. [
Footnote 24]
The Commission continued to press the federal officials
Page 426 U. S. 175
to apply for Operating permits. In October, 1972, the Regional
Administrator of the EPA sent a letter to the operators of all
federal facilities in the region, including those to which the
Kentucky officials had addressed their requests, and to the
Commission. Setting forth EPA policy and the agency's
interpretation of § 118 of the Clean Air Act, [
Footnote 25] the Regional Administrator
stated:
"It is clear that Section 118 . . . requires Federal facilities
to meet state air quality standards and emission limitations and to
comply with deadlines established in the approved state air
implementation plans."
App. 57. To aid the States in accomplishing these objections,
wrote the Administrator, each federal facility should develop a
compliance schedule, and should provide "reasonable and specific"
data requested by the State.
Id. at 58. On the question
whether federal facilities must apply for state permits, the letter
reiterated the EPA position that, although
"Federal agencies are [not] required to apply for state
operating permits . . . [o]ur aim is to encourage Federal agencies
to provide the states with all the information required to assess
compliance of pollution sources with standards, emission and
discharge limitations and the needs for additional abatement
measures. [
Footnote 26]"
Ibid.
Page 426 U. S. 176
Kentucky then brought this suit in the United States District
Court for the Western District of Kentucky. [
Footnote 27] The complaint sought declaratory
and injunctive relief requiring the Army, TVA, and AEC facilities
to secure operating permits. Kentucky also named several EPA
officials as defendants, and asked the District Court to order them
to commence appropriate actions under § 113 of the Clean Air Act,
directing the Army, the TVA, and the AEC facilities to comply with
the provisions of Regulation AP-1, § 5(1). [
Footnote 28] On cross-motions for summary
Page 426 U. S. 177
judgment; the District Court ordered the complaint dismissed.
Kentucky ex rel. Hancock v. Ruckelshaus, 362 F.
Supp. 360 (1973).
The Court of Appeals affirmed, 497 F.2d 1172 (CA6 1974). Like
the District Court, 362 F. Supp. at 363 n. 3, the Court of Appeals
found it unnecessary to determine whether the federal installations
were in compliance with Kentucky's emission limitations or had
adopted adequate compliance schedules, for it was Kentucky's
position that, notwithstanding possible compliance, "the Kentucky
Plan is so formulated that the State cannot meet its primary
responsibility under the Clean Air Act without the use of permits."
497 F.2d at 1174-1175. After examining § 118 and its purposes in
relation to other provisions of the Clean Air Act, the court
concluded:
"We do not believe the congressional scheme for accomplishment
of these purposes included subjection of federal agencies to state
or local permit requirements. Congress did commit the United States
to compliance with air quality and emission standards, and it is
undisputed in this record that the federal facilities in Kentucky
have cooperated with the Commission toward this end."
497 F.2d at 1177. We granted Kentucky's petition for certiorari,
420 U.S. 971 (1975), to resolve a conflict in the Courts of
Appeals, [
Footnote 29] and
now affirm.
Page 426 U. S. 178
III
It is a seminal principle of our law
"that the constitution and the laws made in pursuance thereof
are supreme; that they control the constitution and laws of the
respective States, and cannot be controlled by them."
M'Culloch v.
Maryland, 4 Wheat. 316,
17 U. S. 426
(1819). From this principle is deduced the corollary that
"[i]t is of the very essence of supremacy to remove all
obstacles to its action within its own sphere, and so to modify
every power vested in subordinate governments, as to exempt its own
operations from their own influence."
Id. at
17 U. S. 427.
The effect of this corollary, which derives from the Supremacy
Clause [
Footnote 30] and is
exemplified in the Plenary Powers Clause [
Footnote 31] giving Congress exclusive legislative
authority over federal enclaves purchased with the consent of a
State, is "that the activities of the Federal Government are free
from regulation by any state." [
Footnote 32] As Mr. Justice Holmes put it in
Johnson
v. Maryland, 254 U. S. 51,
254 U. S. 57
(1920):
"[T]he immunity of the instruments of the United States from
state control in the performance of their duties extends to a
requirement that they
Page 426 U. S. 179
desist from performance until they satisfy a state officer upon
examination that they are competent for a necessary part of them. .
. ."
Taken with the "old and well known rule that statutes which in
general terms divest preexisting rights or privileges will not be
applied to the sovereign" [
Footnote 33] "without a clear expression or implication
to that effect," [
Footnote
34] this immunity means that, where "Congress does not
affirmatively declare its instrumentalities or property subject to
regulation," "the federal function must be left free" of
regulation. [
Footnote 35]
Particular deference should be accorded that "old and well known
rule" where, as here, the rights and privileges of the Federal
Government at stake not only find their origin in the Constitution,
but are to be divested in favor of and subjected to regulation by a
subordinate sovereign. Because of the fundamental importance of the
principles shielding federal installations and activities from
regulation by the States, an authorization of state regulation is
found only when and to the extent there is "a clear congressional
mandate," [
Footnote 36]
"specific congressional action" [
Footnote 37] that makes this authorization of state
regulation "clear and unambiguous." [
Footnote 38]
Neither the Supremacy Clause nor the Plenary Powers Clause bars
all state regulation which may touch the activities of the Federal
Government.
See Penn
Dairies
Page 426 U. S. 180
v. Pennsylvania Milk Control Comm'n, 318 U.
S. 261 (1943);
Alabama v. King & Boozer,
314 U. S. 1,
314 U. S. 9
(1941), and cases cited. "Here, however, the State places a
prohibition on the Federal Government." [
Footnote 39] The permit requirement is not intended
simply to regulate the amount of pollutants which the federal
installations may discharge. Without a permit, an air contaminant
source is forbidden to operate even if it is in compliance with
every other state measure respecting air pollution control and
abatement. It is clear from the record that prohibiting operation
of the air contaminant sources for which the State seeks to require
permits, App. 14-17, is tantamount to prohibiting operation of the
federal installations on which they are located.
Id. at
89-93.
Kentucky, like the Court of Appeals for the Fifth Circuit in
Alabama v. Seeber, 502 F.2d 1238, 1247-1248 (1974), finds
in § 118 a sufficient congressional authorization to the States not
only to establish the amount of pollutants a federal installation
may discharge, but also to condition operation of federal
installations on securing a state permit. We disagree, because we
are not convinced that Congress intended to subject federal
agencies to state permits. We are unable to find in § 118, on its
face or in relation to the Clean Air Act as a whole, or to derive
from the legislative history of the Amendments, any clear and
unambiguous declaration by the Congress that federal installations
may not perform their activities unless a state official issues a
permit. Nor can congressional intention to submit federal activity
to state control be implied from the claim that, under Kentucky's
EPA-approved implementation plan, it is only through the permit
system that compliance schedules and other
Page 426 U. S. 181
requirements may be administratively enforced against federal
installations.
IV
The parties rightly agree that § 118 obligates federal
installations to conform to state air pollution standards or
limitations and compliance schedules. [
Footnote 40] With the enactment of the Amendments in
1970 came the end of the era in which it was enough for federal
facilities to volunteer their cooperation with federal and state
officials. In Kentucky's view, that era has been replaced by one in
which federal installations are not only required to limit their
air pollutant emissions to the same extent as their nonfederal
neighbors, but also, subject only to case-by-case Presidential
exemption, to submit themselves completely to the state regime by
which the necessary information to promulgate emission limitations
and compliance schedules is gathered, and by which collection of
that information and enforcement of the emission limitations and
compliance schedules are accomplished. Respondents (hereafter
sometimes EPA) take the position that the Congress has not gone so
far. While federal and nonfederal installations are governed by the
same emission standards, standards which the States have the
primary responsibility to develop, the EPA maintains that the
authority to compel federal installations to provide necessary
information to the States and to conform to state standards
necessary to carry out the federal policy to control and regulate
air pollution has not been extended to the States.
Page 426 U. S. 182
Analysis must begin with § 118. [
Footnote 41] Although the language of this provision is
notable for what it states in comparison with its predecessor,
[
Footnote 42] it is also
notable for what it does not state. It does not provide that
federal installations "shall comply with
all federal,
state, interstate, and local requirements to the same extent as any
other person." Nor does it state that federal installations "shall
comply with
all requirements of the applicable state
implementation plan." Section 118 states only to what extent -- the
same as any person -- federal installations must comply with
applicable state requirements; it does not identify the applicable
requirements. There is agreement that § 118 obligates existing
federal installations to join nonfederal sources in abating
Page 426 U. S. 183
air pollution, that comparable federal and nonfederal sources
are expected to achieve the same levels of performance in abating
air pollution, and that those levels of performance are set by the
States. Given agreement that § 118 makes it the duty of federal
facilities to comply with state-established air quality and
emission standard, the question is, as the Fifth Circuit put it in
another case,
"whether Congress intended that the enforcement mechanisms of
federally approved state implementation plans, in this case permit
systems, would be"
available to the States to enforce that duty.
Alabama v.
Seeber, 502 F.2d at 1247. In the case before us, the Court of
Appeals concluded that federal installations were obligated to
comply with state substantive requirements, as opposed to state
procedural requirements, 497 F.2d at 1177, but Kentucky reflects
the distinction between procedural and substantive requirements,
saying that whatever is required by a state implementation plan is
a "requirement" under § 118.
The heart of the argument that the requirement that all air
contaminant sources secure an operating permit is a "requirement
respecting control and abatement of air pollution" is that Congress
necessarily implied the power to enforce from the conceded
authority to develop and set emission standards. Under Kentucky's
EPA-approved implementation plan, the permit requirement
"is the mechanism through which [it] is able to
compel
the production of data concerning air contaminant sources,
including the ability to prescribe the monitoring techniques to be
employed, and it is the only mechanism which allows [it] to develop
and review a source's compliance schedule and
insure that
schedule is followed. [
Footnote
43]"
When a State is without administrative means of implementing and
enforcing its standards
Page 426 U. S. 184
against federal sources, a duty to comply with those standards
is said to be utterly meaningless. [
Footnote 44]
The difficulty with this position is threefold. First, it
assumes that only the States are empowered to enforce federal
installations' compliance with the standards. Second, it assumes
the Congress intended to grant the States such authority over the
operation of federal installations. Third, it unduly disregards the
substantial change in the responsibilities of federal air
contaminant sources under § 118 in comparison with 42 U.S.C. §
1857f(a) (1964 ed., Supp. V),
supra, at 171. Contrary to
Kentucky's contention that Congress necessarily intended to subject
federal facilities to the enforcement mechanisms of state
implementation plans, our study of the Clean Air Act not only
discloses no clear declaration or implication of congressional
intention to submit federal installations to that degree of state
regulation and control, but also reveals significant indications
that, in preserving a State's "primary responsibility for assuring
air quality within [its] entire geographic area," the Congress did
not intend to extend that responsibility by subjecting federal
installations to such authority.
The Clean Air Act, as amended, does not expressly provide for a
permit system as part of a State's implementation plan. [
Footnote 45] It is true that
virtually every State
Page 426 U. S. 185
has adopted a form of permit system much like that adopted by
Kentucky,
see 40 CFR pt. 52 (1975), as a means of
gathering information to determine what emission standards to set
and compliance schedules to approve and of assuring compliance with
them. Also, only an implementation plan enabling a State to meet
these -- and other -- objectives can be approved by the EPA.
[
Footnote 46] Nonetheless,
we find in the 1970 Amendments several firm indications that the
Congress intended to treat emission standards and compliance
schedules -- those requirements which, when met, work the actual
reduction of air pollutant discharge -- differently from
administrative and enforcement
Page 426 U. S. 186
methods and devices -- those provisions by which the States were
to establish and enforce emission standards, compliance schedules,
and the like. This is so in spite of the absence of any definition
of the word "requirements" or of the phrase "requirements
respecting control and abatement of air pollution." [
Footnote 47]
Page 426 U. S. 187
In § 110(e)(1)(A), for example, the EPA is authorized to extend
for two years a State's three-year deadline for attaining a
national primary air quality standard if, upon timely application,
it is determined that an emission source is unable to meet "the
requirements of such plan which implement such primary standard
because the necessary technology" is unavailable. 42 U.S.C. §
1857c-5(e)(1)(A). Although compiling the information necessary for
a permit may require familiarity with technology, it is plain that
the "requirements" to which this section refers are those for which
technologically adequate industrial processes might not be
available. Section 110(e)(2)(A) necessarily contemplates the same
meaning of "requirements," that is, emission standards and
compliance schedules, as does § 110(f), which provides for one-year
postponement of the application of "requirements" to sources the
continued operation of which is "essential to national security or
to the public health." 42 U.S.C. § 1857c-5(f)(1)(D).
See
Train, 421 U.S. at
421 U. S. 80-84.
[
Footnote 48]
Stronger indications that the term "requirements" as used in §
118 does not embrace every measure incorporated in a State's
implementation limitations and compliance
Page 426 U. S. 188
schedules appear in the emergence of § 118 from the House bill
and Senate amendment from which it was derived.
The House bill provided that federal installations "shall comply
with applicable Federal, State, interstate, and local
emission
standards." [
Footnote
49] The House Report stated that this "legislation directs
Federal agencies in the executive, legislative, and judicial
branches to comply with applicable Federal, State, interstate, and
local
emission standards." [
Footnote 50] The Senate amendment provided that federal
agencies
"shall provide leadership in carrying out the policy and
purposes of this Act and shall comply with the
requirements of this Act in the same manner as any person.
. . . [
Footnote 51]"
The Senate Report stated that this provision
"requires that Federal facilities meet the
emission
standards necessary to achieve ambient air quality standards,
as well as those established in other sections of Title I.
[
Footnote 52]"
Thus, while the House bill spoke of "emission standards," the
Senate amendment, like § 118, as enacted, spoke of "requirements."
In accommodating the different language in the two bills and
formulating what is now § 118, the Conference Committee simply
combined the House and Senate provisions. If, as Kentucky
argues,
Page 426 U. S. 189
the Conference Committee in taking the Senate language of
"requirements" meant thereby to subject federal facilities to
enforcement measures obviously not embraced in the language of the
House bill, it is remarkable that it made no reference to its
having reconciled this difference in favor of extending state
regulation over federal installations. Given the interchangeable
use of "emission standards" and "emission requirements" in the
Senate amendment,
see n 52,
supra, the predominance of the language of
the Senate version in § 118 as enacted, [
Footnote 53] and the absence of any mention of
disagreement between the two bills, it is more probable that the
Conference Committee intended only that federal installations
comply with emission standards and compliance schedules than that
its intention was to empower a State to require federal
installations to comply with every measure in its implementation
plan.
See Alabama v. Seeber, 502 F.2d at 1247.
The impression that Congress intended only that federal agencies
comply with emission limitations and standards is strengthened by
the Conference Report, which stated, in full:
"The House bill and the Senate amendment declared that Federal
departments and agencies should comply with applicable standards of
air quality and emissions."
"The conference substitute modifies the House
Page 426 U. S. 190
provision to require that the President, rather than the
Administrator, be responsible for assuring compliance by Federal
agencies. [
Footnote 54]"
This examination of § 118 and the central phrase "requirements
respecting control or abatement of air pollution" discloses a
regime of divided responsibility for the mobilization of federal
installations in the effort to abate air pollution. Kentucky
agrees, but persists in its contention that existing federal
sources have been subjected to state regulation by differing on
where that division places authority to enforce compliance by
existing federal facilities -- "
sources with respect
to which state implementation plans establish the criteria for
enforcement.'" [Footnote 55]
For such -- existing -- sources, Kentucky maintains, the States are
granted primary enforcement authority, while
"'the responsibility and authority for
Page 426 U. S. 191
enforcement . . . is granted to EPA in those instances
(
i.e., new sources and hazardous pollutants) where EPA
establishes the criteria.' [
Footnote 56]"
Perhaps we could agree if the issue were not whether there is a
clear and unambiguous congressional authorization for the
regulatory authority petitioner seeks, for, as the Fifth Circuit
has said, such a "scheme is a reasonable one."
Alabama v.
Seeber, supra, at 1244. But that is the issue, and the
implications Kentucky draws from its evaluation of the manner in
which the Congress divided responsibility for regulation of new
sources and of hazardous air pollutants do not persuade us.
In drawing on the manner in which the Clean Air Act has divided
the authority to regulate new sources of air pollutants [
Footnote 57] and the emission of
hazardous air pollutants [
Footnote 58] in comparison with existing air pollutant
sources, Kentucky makes two separate, though related, arguments.
The first is that, when Congress wanted to exempt federal
facilities from compliance with a state requirement, it did so by
express exclusionary language. Thus, § 111(c)(1) authorizes the
Administrator to delegate to a State "any authority he has under
this Act to implement and enforce" new-source standards of
performance -- with which new sources owned or operated by the
United States must comply (§ 111(b)(4)) -- "except with respect to
new sources owned or operated by the United States." 42 U.S.C. §
1857c-6(c)(1). Section 114(b)(1) of the Clean Air Act, as added, 84
Stat. 1688, is to the same
Page 426 U. S. 192
effect respecting inspections, monitoring, and entry of an
emission source. 42 U.S.C. § 1857c-9(b)(1). Similarly, § 112(d)(1)
authorizes the Administrator, upon finding that a State's plan to
enforce emission standards for hazardous pollutants is adequate to
the task, to delegate to that State
"any authority he has under this Act to implement and enforce
such standards (except with respect to stationary sources owned or
operated by the United States)."
42 U.S.C. § 1857c-7(d)(1). The argument that these specific
exemptions of federal facilities from state enforcement and
implementation methods are necessary only because § 118 has, as a
general matter, subjected federal installations to all state
requirements fails on several counts. First, as we have
demonstrated, by itself, § 118 does not have the effect petitioner
claims. Second, the relevant portions of §§ 111, 112, and 114
assume that the Administrator possesses the authority to enforce
and implement the respective requirements against sources owned or
operated by the United States.
See §§ 111(c)(2),
112(d)(2), and 114(b)(2). Third, just as in providing for
Presidential exemptions in § 118, Congress separated the
requirements of §§ 111 and 112 from other requirements, Congress
naturally treated the submission of federal installations to state
regulation under §§ 111, 112, and 114 separately from general
provisions for meeting ambient air quality standards under § 110
implementation plans devised by the States and approved by the EPA.
A State must promulgate an implementation plan. § 110(a). The
delegation provisions of §§ 111, 112, and 114, on the other hand,
are permissive, providing that "[e]ach State
may develop
and submit to the Administrator a procedure" to carry out the
section. (Emphasis added.)
Kentucky's second argument is that the manner in which Congress
differentiated treatment of new sources
Page 426 U. S. 193
and existing sources in §§ 111 and 114 clearly implies that
existing federal sources were to be subject to the enforcement
provisions of a State's implementation plan. The implication is
said to arise from the different nature of the control required for
the two types of installations. The difference is explained as
follows: for existing sources, the first step for a State is to
determine the general quality of air in the relevant air quality
region, and then to compute the amounts of pollution attributable
to each source. Next, appropriate emission standards necessary to
meet the national ambient air quality standards must be assigned to
the various sources, followed by determining the compliance
schedule by which each installation will achieve the assigned
standards by the attainment date prescribed in the Act. To carry
out this process of gathering information and coordinating control
throughout the State, it is said to be necessary for the States to
have ready administrative authority over all sources, federal and
nonfederal. This administrative authority, concededly a major part
of an implementation plan as to nonfederal sources, must therefore
have been intended to extend to federal sources as well.
In contrast, controlling "new sources" is described as a
straightforward task. This is because "standards of performance"
for such sources, which are established in light of technologically
feasible emission controls, and not in relation to ambient air
quality standards, [
Footnote
59] are set by the EPA for various categories of sources and
are uniform throughout the Nation. A comprehensive enforcement
Page 426 U. S. 194
mechanism to develop and coordinate application of these
standards is unnecessary, especially because all new sources must
be in compliance before operation begins, § 111(e). The Congress is
said, therefore, to have exempted new federal installations from
state enforcement of federally promulgated standards of performance
because it was unnecessary to submit those installations to the
same kind of coordinated control to which existing sources had been
submitted.
The Act itself belies this contention. It recognizes that a "new
source," even one in full compliance with applicable standards of
performance, may hinder or prevent attainment or maintenance of air
quality standards within the air quality region in which it is
located, and requires a state implementation plan to include
procedures for averting such problems.
See §§
110(a)(2)(D), (a)(4).
The arguments respecting the federal new source exception in §
114 also fail to bear the weight they must carry if Kentucky is to
prevail. Section 114 provides for the establishment of various
means by which to collect information
"[f]or the purpose (i) of developing or assisting in the
development of any implementation plan under section 110 or 111(d),
any standard of performance under section 111, or any emission
standard under section 112, [or] (ii) of determining whether any
person is in violation of any such standard or any requirement of
such a plan. . . ."
84 Stat. 1687, as added, 42 U.S.C. § 1857c-9(a). Unlike §§ 111
and 112, § 114 is doubly permissive. First, although the
Administrator "shall" publish § 111 new source standards of
performance and § 1 12 hazardous air pollutant emission standards,
under § 114(a), the Administrator "may," but need not, require
operators
Page 426 U. S. 195
of emission sources to keep records, to make reports, to
install, use, and maintain monitoring equipment, and to sample its
emissions. Second, as with §§ 111 and 112, the States "may" develop
procedures to carry out the section. That Congress provided for
this slight possibility that existing federal sources would be
obliged to conform to state procedures for carrying out § 114 in
addition to emission standards and compliance schedules scarcely
implies, as petitioner suggests, that Congress intended existing
federal sources to comply with all state regulatory measures, not
only emission standards and compliance schedules. Rather than
exempting new federal sources from an obligation to which
they would otherwise have been subject, Congress may as well have
been
extending the obligation to conform to state § 114
regulatory procedures to existing -- but not to new -- federal
sources which would not otherwise have been thought subject to such
regulation.
Finally, we reject the argument that § 304 of the Clean Air Act
reveals congressional intention to grant the States authority to
subject existing federal sources to the enforcement mechanisms of
their enforcement plan. The section provides in part:
"(a) Except as provided in subsection (b), any person may
commence a civil action on his own behalf -- "
"(1) against any person (including (i) the United States, and
(ii) any other governmental instrumentality or agency to the extent
permitted by the Eleventh Amendment to the Constitution) who is
alleged to be in violation of (A) an emission standard or
limitation under this Act or (b) an order issued by the
Administrator or a State with respect to such a standard or
limitation. . . ."
42 U.S.C. § 1857h-2.
Page 426 U. S. 196
Section 302(e) includes a "State" in the definition of a
"person," 42 U.S.C. § 1857h(e), and § 304(f) provides:
"For purposes of this section, the term 'emission standard or
limitation under this Act' means -- (1) a schedule or timetable of
compliance, emission limitation, standard of performance or
emission standard . . . which is in effect under this Act
(including a requirement applicable by reason of section 118) or
under an applicable implementation plan."
42 U.S.C. § 1857h-2(f).
Although it is argued that § 304 was not intended to permit a
State to sue violators under the Act, we agree with the EPA that §
304 is the only means provided by the Act for the States to remedy
noncompliance by federal facilities with § 118. That § 304 was so
intended is plain from both the language of § 304(f) and the
legislative origins of § 304. The Senate version of § 118 provided
that a State
"in which any Federal property, facility, or activity is located
may seek to enforce the provisions of this section pursuant to
section 304 of this Act. [
Footnote 60]"
When the Conference Committee eliminated this subsection from
the Senate amendment, it retained the definition of "person," which
included a "State" in § 302(e), and added § 304(f) with the
parenthetical phrase "including a requirement applicable by reason
of section 118." This made clear that § 118 was to be enforced
through § 304, and § 304 is the only provision in the Act for state
enforcement of the duties of a federal installation under § 118. In
short, § 118 establishes the duty of federal installations to
comply with state "requirements," and § 304 provides the means of
enforcing that duty in federal court. In light of this
Page 426 U. S. 197
close relationship between the two sections, we find it
significant that § 304(f) extends the enforcement power only to "a
schedule or timetable of compliance, emission limitation, standard
of performance or emission standard," and not to all state
implementation measures. Thus circumscribed, the scope of the § 304
power to enforce § 118 strongly suggests that § 118 duties
themselves are similarly limited, for it seems most unlikely that,
in providing that a State might bring suit in district court to
enforce the duties of federal installations under § 118, the
Congress would not make all of those duties enforceable in district
court. Yet this is exactly what Kentucky argues, saying: "There can
be no explanation for the existence of Section 118 if it imposes no
obligations other than those imposed under Section 304." [
Footnote 61]
The argument is defective on another count. Even if, standing
alone, § 304 could be read to require federal facilities to comply
with the matters within § 304(f), the assumption that the two
sections independently impose duties on federal installations
conflicts with the legislative history. Section 304(a) was first
extended to apply to federal sources of pollution in Conference, at
the same point at which the express provision for enforcement
authority over federal installations was removed from § 118.
[
Footnote 62] Given this
relationship between
Page 426 U. S. 198
the two measures, we cannot credit the argument that § 118 was
intended to impose on federal installations any broader duty to
comply with state implementation measures than specified in § 304.
The absence in § 304 of any express provision for enforcing state
permit requirements in federal court is therefore too substantial
an indication that congressional understanding was that the
"requirements" federal facilities are obliged to meet under § 118
did not include permit requirements to be overcome by assertions to
the contrary.
In view of the undoubted congressional awareness of the
requirement of clear language to bind the United States, [
Footnote 63] our conclusion is that
with respect to subjecting federal installations to state permit
requirements, the Clean Air Act does not satisfy the traditional
requirement that such intention be evinced with satisfactory
clarity. Should this nevertheless be the desire of Congress, it
need only amend the Act to make its intention manifest. [
Footnote 64] Absent such amendment,
we can only conclude that, to the extent it considered the matter
in enacting § 118, Congress has fashioned a compromise which, while
requiring federal installations to abate their pollution to the
same extent as any other air contaminant source and under standards
which the States have prescribed,
Page 426 U. S. 199
stopped short of subjecting federal installations to state
control.
This conclusion does not mean that we are persuaded that the
States are as able to administer their implementation plans as they
would be if they possessed the degree of authority over federal
installations urged here, although, as Kentucky acknowledged at
oral argument, the EPA, acting under the impetus of Executive Order
No. 11752, 3 CFR 380 (1974), has promulgated guidelines for
compliance by federal agencies with stationary source air pollution
standards, 40 Fed Reg. 20664 (1975), which will lead to federal
agencies' entering "consent agreements which are exactly identical
in every respect to what a compliance schedule would have been."
[
Footnote 65]
The judgment of the Court of Appeals is
Affirmed.
MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST dissent. They
agree substantially with the reasoning of the Court of Appeals for
the Fifth Circuit in
Alabama v. Seeber, 502 F.2d 1238, and
they would reverse the judgment before us on the grounds set out in
that opinion.
[
Footnote 1]
In
EPA v. California ex rel. State Water Resources Control
Board, post, p.
426 U. S. 200,
also decided this day, we consider a closely related issue under
the Federal Water Pollution Control Act, as amended, 33 U.S.C. §
1251
et seq. (1970 ed., Supp. IV).
[
Footnote 2]
As renumbered and amended, 84 Stat. 1689, 42 U.S.C. § 1857f.
[
Footnote 3]
Pub.L. 91-604, 84 Stat. 1676.
[
Footnote 4]
36 Fed.Reg. 8186 (1971).
See 40 CFR pt. 50 (1975).
Title 40 CFR § 50.1(e) (1975) defines "ambient air" as "that
portion of the atmosphere, external to buildings, to which the
general public has access."
[
Footnote 5]
The EPA is guided in compiling a list of air pollutants by §
108(a) of the Clean Air Act, as added, 84 Stat. 1678, 42 U.S.C. §
1857c-3(a).
[
Footnote 6]
The range of a State's initiative in meeting its primary
responsibility to assure air quality is somewhat greater for
existing sources of air pollution, such as those involved in this
case, than for "new sources."
See infra at
426 U. S.
190-194.
[
Footnote 7]
Train v. Natural Resources Defense Council,
421 U. S. 60,
421 U. S. 64
(1975).
[
Footnote 8]
Brief for Respondents 27.
[
Footnote 9]
As amended, 81 Stat. 499, 42 U.S.C. § 1857f(a) (1964 ed., Supp.
V).
[
Footnote 10]
Congress first called on federal agencies to cooperate with
efforts to reduce air pollution in 1959, Pub.L. 86-365, 73 Stat.
646.
[
Footnote 11]
H.R.Rep. No. 91-1146, p. 4 (1970), 2 Legislative History of the
Clean Air Amendments of 1970 (Comm.Print compiled for the Senate
Committee on Public Works by the Library of Congress), p. 894
(1974) (hereafter Leg.Hist.).
[
Footnote 12]
S.Rep. No. 91-1196, p. 37 (1970), 1 Leg.Hist. 437.
[
Footnote 13]
The full text of § 118 appears at
n 41,
infra.
[
Footnote 14]
37 Fed.Reg. 10842, 10868-10869 (1972). Approval of the plan was
later vacated because the EPA had not given interested persons an
opportunity to participate in its consideration of the plan.
Buckeye Power, Inc. v. EPA, 481 F.2d 162 (CA6 1973). After
resubmission to the EPA and publication as a proposed rulemaking,
39 Fed.Reg. 10277 (1974), the plan was approved with an exception
not pertinent here.
Id. at 29357.
[
Footnote 15]
Pet. for Cert. 46a. Although § 5(1) does not explicitly apply to
federal facilities, the definition of "person" in § 2(32) of the
Regulation includes any "government agency . . . or other entity
whatsoever." App. in No. 73-2099 (CA6), p. 111 (hereafter CA App.).
The applicability of § 5(1) to federal facilities a a matter of
Kentucky law has not been disputed.
[
Footnote 16]
Reg. AP-1 §§ 5(2)(a), (c), CA App. 120.
[
Footnote 17]
See generally Reg. AP-10, CA App. 209-227.
[
Footnote 18]
Reg. AP-1, § 5(2)(c), CA App. 120.
[
Footnote 19]
Id., § 5(3)(a), CA App. 121.
[
Footnote 20]
Id. § 5(4), CA App. 121.
[
Footnote 21]
The Army facilities are the United States Army Armor Center and
Fort Knox, Fort Campbell, and the Lexington and Blue Grass
Activities, Lexington-Blue Grass Army Depot.
[
Footnote 22]
Two TVA facilities are involved, the Shawnee and Paradise Power
Plants.
[
Footnote 23]
The AEC facility is the Paducah gaseous Diffusion Plant for the
production of enriched uranium, operated under contract by the
Union Carbide Corp. Since the Commission initiated its efforts to
secure a permit application from the AEC or its contractor, the
Energy Research and Development Administration has succeeded to the
AEC's responsibility for the Paducah plant. Pub.L. 93-438, 88 Stat.
1233;
see 40 Fed.Reg. 3242, 3250 (1975).
[
Footnote 24]
Fort Campbell officials, for example, after asserting that
"current Department of the Army regulations do not allow us to
apply for such a permit," submitted "pertinent information on our
heating plants which appear to be covered by your regulations" and
asked to be "advise[d] if any further information is desired." App.
48. TVA officials likewise disclaimed any duty to apply for a
permit, but submitted
"the same emission data and other information for [TVA] power
plants which your permit application forms are designed to elicit
from applicants who are required to secure permits in order to
continue their operations."
For the Commission's convenience, the TVA supplied the
information on the Commission's own permit forms.
Id. at
52.
[
Footnote 25]
In addition to § 118, the letter referred to Executive Order No.
11507, 3 CFR 889 (1966-1970 Comp.), which antedates the Amendments,
as a policy source. This Order, cited in the complaint, has ben
superseded by Executive Order No. 11752, 3 CFR 380 (1974).
See
infra at
426 U. S.
199.
[
Footnote 26]
The letter explained to the federal officials that the EPA's
"advice on this matter, at this time, is to provide the data
specifically requested by the states so they may make a
determination as to: (1) the facilities compliance with the
approved state air implementation plans and (2) the abatement
action facilities must take in order to meet implementation plan
requirements."
"We recommend that each Federal facility under your jurisdiction
which has an air pollution discharge should initiate immediate
discussion, if it has not already been accomplished, with the
respective states, regarding development of a compliance schedule
as required by their implementation plan. This compliance schedule
should include the standards or emission limitations which must be
met, the abatement equipment to be constructed, corrective measures
to be taken, and the timetable for taking these actions in order to
meet established implementation plan deadlines. Your agency will be
obligated under the compliance schedule to conduct monitoring and
to keep operating records. Whenever a state makes a reasonable and
specific request to review operating records, we recommend that
your agency adopt an open-door policy by providing the requested
data."
App. 57-58.
[
Footnote 27]
The suit was brought by the Attorney General without the
concurrence of the Commission. The District Court's ruling that
Kentucky law permitted the Attorney General to sue without a
request from the Commission is not challenged here.
[
Footnote 28]
Section 113, as added, 84 Stat. 1686, 42 U.S.C. § 1857c-8,
empowers the EPA Administrator, upon finding that any person is in
violation of an applicable provision of an implementation plan or
that violations of an applicable implementation plan are so
widespread as to appear to result from ineffective state
enforcement and upon giving notice, to commence appropriate action
either by issuing an order to any person requiring compliance with
the plan's requirements or by bringing a civil action under §
113(b) in district court. The District Court and the Court of
Appeals both ruled that, even if federal facilities were obligated
to secure operating permits, the Administrator's duty to proceed
under § 1 13 was discretionary. The decision not to commence
actions under § 113 was therefore unreviewable. 5 U.S.C. §
701(a)(2); § 304(a)(2) of the Clean Air Act as added, 84 Stat.
1706, 42 U.S.C. § 1857h-2(a)(2). Our disposition of the case makes
it unnecessary to reach this alternative ground for judgment in
favor of the EPA respondents.
[
Footnote 29]
After the petition was filed, a divided panel of the Fifth
Circuit concluded that § 118 does require federal facilities to
secure a state operating permit and to comply with state
"enforcement mechanisms."
Alabama v. Seeber, 502 F.2d 1238
(1974),
cert. pending, No. 7851.
See also California
v. Stastny, 382 F.
Supp. 222 (CD Cl.1972).
[
Footnote 30]
Art. VI, cl. 2.
[
Footnote 31]
Art. I, § 8, cl. 17:
"[The Congress shall have Power to] exercise exclusive
Legislat[ive] . . . Authority over all Places purchased by the
Consent of the Legislature of the State in which the Same shall be,
for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
other needful Buildings. . . ."
[
Footnote 32]
Mayo v. United States, 319 U.
S. 441,
319 U. S. 445
(1943) (footnote omitted).
[
Footnote 33]
United States v. United Mine Workers, 330 U.
S. 258,
330 U. S. 272
(1947) (footnote omitted).
See United States v.
Herron, 20 Wall. 251,
87 U. S. 263
(1874);
United States v.
Knight, 14 Pet. 301,
39 U. S. 315
(1840).
[
Footnote 34]
United States v. Wittek, 337 U.
S. 346,
337 U. S. 359
(1949) (footnote omitted).
[
Footnote 35]
Mayo v. United States, supra at
319 U. S. 447,
319 U. S. 448
(footnote omitted).
[
Footnote 36]
Kern-Limerick, Inc. v. Scurlock, 347 U.
S. 110,
347 U. S. 122
(1954).
[
Footnote 37]
Paul v. United States, 371 U.
S. 245,
371 U. S. 263
(1963).
[
Footnote 38]
California ex rel. State Water Resources Control Board v.
EPA, 511 F.2d 963, 968 (CA9 1975),
rev'd on other grounds,
post, p.
426 U. S. 200.
[
Footnote 39]
California Pub. Util. Comm'n v. United States,
355 U. S. 534,
355 U. S. 54
(1958).
[
Footnote 40]
Title 40 CFR § 51.1 (p) (1975) defines "compliance schedule"
as
"the date or dates by which a source or category of sources is
required to comply with specific emission limitations contained in
an implementation plan and with any increments of progress toward
such compliance."
Basically, a compliance schedule is a means by which a State
phases in attainment with the ultimate emission limitations that
must be achieved.
See Train, 421 U.S. at
421 U. S.
68-69.
[
Footnote 41]
"Each department, agency, and instrumentality of the executive,
legislative, and judicial branches of the Federal Government (1)
having jurisdiction over any property or facility, or (2) engaged
in any activity resulting, or which may result, in the discharge of
air pollutants, shall comply with Federal, State, interstate, and
local requirements respecting control and abatement of air
pollution to the same extent that any person is subject to such
requirements. The President may exempt any emission source of any
department, agency, or instrumentality in the executive branch from
compliance with such a requirement if he determines it to be in the
paramount interest of the United States to do so, except that no
exemption may be granted from section 111, and an exemption from
section 112 may be granted only in accordance with section 112(c).
No such exemption shall be granted due to lack of appropriation
unless the President shall have specifically requested such
appropriation as a part of the budgetary process and the Congress
shall have failed to make available such requested appropriation.
Any exemption shall be for a period not in excess of one year, but
additional exemptions may be granted for periods of not to exceed
one year upon the President's making a new determination. The
President shall report each January to the Congress all exemptions
from the requirements of this section granted during the preceding
calendar year, together with his reason for granting each such
exemption."
42 U.S.C. § 1857f.
[
Footnote 42]
See 42 U.S.C. § 1857f(a) (1964 ed., Supp. V),
supra at 171.
[
Footnote 43]
Brief for Petitioner 21 (emphasis added).
[
Footnote 44]
Id. at 30. Several States which have filed briefs as
amici curiae join Kentucky in recognizing that the issue
is whether a State may enforce its emission limitations against a
federal installation.
See Brief for Alabama as
Amicus
Curiae 4, 5, 37-38; Brief for California as
Amicus
Curiae 9.
[
Footnote 45]
Although use of a permit system may have been "encouraged" by
the EPA as its "preferred approach,"
see Train, 421 U.S.
at
421 U. S. 68-69,
the EPA has never made a permit system to control emissions from
existing stationary sources a mandatory part of an implementation
plan. The closest the EPA has come to this was a provision in a
proposed rulemaking, 36 Fed.Reg. 6680, 6682 (1971), later
eliminated,
id. at 15486, that might have been interpreted
to mean that an implementation plan must include a system requiring
permits for the construction and operation of modifications to
existing sources that would be modified before the Administrator
promulgated proposed standards of performance for new sources under
§ 111 of the Clean Air Act.
Compare 42 U.S.C. § §
1857c-6(a)(2), (b),
with 36 Fed.Reg. 6682 (1971),
proposing 42 CFR § 420.11(a)(4).
[
Footnote 46]
Among the eight conditions, §§ 110(a)(2)(A)-(H), each
implementation plan must meet are:
"(A)(i) in the case of a plan implementing a national primary
ambient air quality standard, it provides for the attainment of
such primary standard as expeditiously as practicable but (subject
to subsection (e)) in no case later than three years from the date
of approval of such plan (or any revision thereof to take account
of a revised primary standard); and (ii) in the case of a plan
implementing a national secondary ambient air quality standard, it
specifies a reasonable time at which such secondary standard will
be attained;"
"(B) it includes emission limitations, schedules, and timetables
for compliance with such limitations, and such other measures as
may be necessary to insure attainment and maintenance of . . .
primary or secondary standard[s], including, but not limited to,
land use and transportation controls; [and]"
"(C) it includes provision for establishment and operation of
appropriate devices, methods, systems, and procedures necessary to
(i) monitor, compile, and analyze data on ambient air quality and,
(ii) upon request, make such data available to the Administrator. .
. ."
[
Footnote 47]
The phrase "requirement respecting control or abatement of air
pollution" also appears in § 116 of the Clean Air Act, as added, 84
Stat. 1689, 42 U.S.C. § 1857d-1. That section provides that, with
certain exceptions preempting state regulation of moving
sources,
"nothing in this Act shall preclude or deny the right of any
State . . . to adopt or enforce (1) any standard or limitation
respecting emissions of air pollutants or (2) any
requirement
respecting control or abatement of air pollution; except that,
if an emission standard or limitation is in effect under an
applicable implementation plan or under section 111 or 112, such
State . . . may not adopt or enforce any emission standard or
limitation which is less stringent than the standard or limitation
under such plan or section."
(Emphasis added.) Although the meaning of the italicized phrase
in this section, which was added by the Conference Committee,
see H.R.Conf.Rep. No. 91-1783, p. 48 (1970), 1
Leg.Hist.198, is not entirely clear, it seems plain that as
employed in § 116 the phrase is not synonymous with "emission
standards and limitations." As the Fifth Circuit observed in
Alabama v. Seeber, 502 F.2d at 1245, the use of "
or'
in § 116 is clearly disjunctive." Yet it is agreed that, as used in
§ 118, the phrase does embrace such standards and limitations;
indeed the EPA argues the two are synonymous.
It is suggested by an
amicus that it is logical to read
§ 116 to mean that a
"'standard or limitation respecting emissions of air pollutants'
is a subcategory of the broader class of 'requirement[s] respecting
control or abatement of air pollution.'"
Brief for Alabama as
Amicus Curiae 20. To the contrary,
from § 116 it appears more logical to conclude that "standards" and
"requirements" are separate categories which, together, compose all
measures which a State is not denied the right to adopt or
enforce.
Unlike Kentucky and the Fifth Circuit,
Alabama v. Seeber,
supra at 1245-1246, which conclude that use of the phrase in §
116 elucidates its scope and meaning in § 118, we are unable to
draw from § 116 any support for the position that Congress
affirmatively declared that federal installations must secure state
permits. To reaffirm, as does § 116, a State's inherent right as a
general matter to employ permits in the exercise of its police
power in the area of air pollution control may mean that the
Federal Government has not preempted the area from state
regulation, but does not constitute the kind of clear and
unambiguous authorization necessary to subject federal
installations and activities to state enforcement.
[
Footnote 48]
Provision in § 118 for Presidential exemption on a case-by-case
basis and in the "paramount interest of the United States" from
compliance with emission standards or compliance schedules does not
clearly imply that federal installations are otherwise subject to
the enforcement mechanisms of a state implementation plan.
[
Footnote 49]
H.R. 17255, 91st Cong., 2d Sess., § 10 (§ 111) (1970), 2
Leg.Hist. 938 (emphasis added).
[
Footnote 50]
H.R.Rep. No. 91-1146,
supra, n 11, at 4, 2 Leg.Hist. 894 (emphasis added).
[
Footnote 51]
S. 4358, 91st Cong., 2d Sess., § 7 (§ 118(a)) (1970), 1
Leg.Hist. 573 (emphasis added).
[
Footnote 52]
S.Rep. No. 91-1196,
supra, n 12, at 23, 1 Leg.Hist. 423 (emphasis added).
Throughout the Senate amendment and in the Report the terms
"requirements," "emission requirements," and "emission standards"
were used interchangeably.
Compare proposed § 118(a)
("requirements")
and the Report ("emission standards")
with proposed § 111(a)(2)(D) ("emission requirements"), 1
Leg.Hist. 545.
[
Footnote 53]
For example, only the Senate amendment equated the federal
installation's duty to comply with "requirements" to any person's
duty, a feature of § 118 as enacted. Similarly, only the Senate
amendment, in § 118(b) (1 Leg.Hist. 574), provided that a State
might sue in federal court to enforce the provisions of § 118(a).
H.R.Conf.Rep. No. 91-1783,
supra at 55, 1 Leg.Hist. 205.
That provision was incorporated in the Amendments in § 304(a),
through the definition of "person" retained in § 302(e), as added,
77 Stat. 400, 42 U.S.C.§ 1857h(e).
[
Footnote 54]
H.R.Conf.Rep. 91-1783,
supra at 48, 1 Leg.Hist. 198. We
are not persuaded by the argument that reference to the President's
replacing the EPA Administrator as the one "responsible for
assuring compliance by Federal agencies" only implicates the
President's power to "exempt any emission source of any department,
agency, or instrumentality in the executive branch from compliance
with . . . a requirement." 42 U.S.C. § 1857f. Both the House and
Senate Reports referred quite plainly to the power to exempt and to
make exceptions when referring to the President's (or the
Administrator's) power to act in the paramount interest of the
United States on a case-by-case basis. S.Rep. No. 91-1196,
supra at 23, 1 Leg.Hist. 423; H.R.Rep. No. 91-1146,
supra at 15, 2 Leg.Hist. 905. Thus, reference in the
Conference Report to the President's authority to assure compliance
merely expresses what is implied by the very grant of authority to
exempt some federal sources -- the authority, as to those
installations subject to Presidential control, to enforce in the
first instance the new regimen of federal compliance with primarily
state formulated and administered implementation plans rests in the
Federal Government, not in the States.
[
Footnote 55]
Brief for Petitioner 33, quoting
Alabama v. Seeber, 502
F.2d at 1244.
[
Footnote 56]
Ibid.
[
Footnote 57]
Regulation of "new sources" of air pollutants, by
EPA-promulgated "standards of performance" (
see infra,
n 59), is provided for in §
111 of the Clean Air Act, as added, 84 Stat. 1683, 42 U.S.C. §
1857c-6.
[
Footnote 58]
Regulation of "hazardous air pollutants" is provided for in §
112 of the Clean Air Act, as added, 84 Stat. 1685, 42 U.S.C. §
1857c-7.
[
Footnote 59]
Section 111(a)(1) defines a "standard of performance" to be
"a standard for emissions of air pollutants which reflects the
degree of emission limitation achievable through the application of
the best system of emission reduction which (taking into account
the cost of achieving such reduction) the Administrator determines
has been adequately demonstrated."
42 U.S.C. § 1857c-6(a)(1).
[
Footnote 60]
S. 4358, § 7 (§ 118(b)), 1 Leg.Hist. 574.
See n 53,
supra.
[
Footnote 61]
Reply Brief for Petitioner 15-16.
[
Footnote 62]
The House bill included no provision for suit in federal court.
H.R.Conf.Rep. No. 91-1783,
supra at 55, 1 Leg.Hist. 205.
The Senate amendment did provide for suit in district court
"to require the enforcement of, the provisions of this Act
including any applicable schedule or timetable of compliance,
emission requirement, standard of performance, emission standard,
or prohibition established pursuant to this Act . . . against any
person, including, but not limited to, a governmental
instrumentality or agency. . . ."
S. 4358, § 9 (§ 304(a)(1)), 1 Leg.Hist. 704. Because the Senate
amendment retained previously enacted § 302(e) of the Clean Air
Act,
see n 53,
supra, defining "person" as "an individual, corporation,
partnership, association, State, municipality, and political
subdivision of a State," it is clear, as the Senate Report
confirms, that, in the Senate amendment, it was only by virtue of §
118 that a State could sue a federal facility for enforcement in
district court under § 304. S.Rep. No. 91-1196,
supra at
37, 1 Leg.Hist. 437.
[
Footnote 63]
See United States v. United Mine Workers, 330 U.S. at
330 U. S.
273.
[
Footnote 64]
The Senate Committee on Public Works has recently reported such
legislation.
See S.Rep. No. 9717 (1976).
[
Footnote 65]
Tr. of Oral Arg. 22.