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10 Admin. L. News 1 (1984-1985)

handle is hein.journals/admreln10 and id is 1 raw text is: ADMINISTRATIVE LAW NEWS Fall 1984 Published by the Section of Administrative Law, American Bar Associatior, Vblume l, Number 1 The Bubble Case by James V. DeLong In Chevron, U.S.A. v. Natural Resources Defense Council, Inc., 104 S. Ct. 2778 (1984), the Supreme Court upheld EPA's use of the bubble approach to air pollution control. In doing so, it said some interesting and potentially important things about the appropri- ate functions of courts and agencies in interpreting regulatory statutes. In environmental law, the term bubble is a simple name for a complicated policy. It denotes an approach to controlling air pollution which allows emissions from a number of discrete facilities to be aggregated so that increases from one can be offset by decreases from another. In EPA practice, this aggregation usually oc- curs at the plant level, though, theoretically, it could be applied to an entire firm or industry, or to a geo- graphic area of almost any size. The name bubble is a metaphor-the policy operates as if a giant bubble were placed over the plant, and only the emissions escaping from the bubble were controlled. This approach to pollution control was first sug- gested by industry in 1972. EPA resisted at first, but in 1975 the agency incorporated it into final Clean Air Act regulations. Its wisdom was reargued within EPA during the Carter years, but again the proponents of at least limited use of the bubble prevailed. The Reagan administration has favored it strongly. The bubble has always been controversial. Its pro- ponents argue that the bubble, by giving industry part of the benefits of reductions in pollution, can make in- stallation of pollution control equipment a paying proposition rather than just an irritating extra ex- pense. It also enlists in the anti-pollution effort the managers at the plant level, who have the most in- timate understanding of the industrial processes in- volved and the best and cheapest ways to reduce emis- sions from them. For both these reasons, proponents believe, the bubble offers substantial gains in both effi- ciency (achieving any given level of pollution control at the lowest cost) and effectiveness (achieving the maximum level of pollution control attainable for any given cost). Opponents argue that the bubble does not accord with either the letter or spirit of the clean air laws, which are intended to compel maximum reduction or prevention of air pollution with little regard for costs. In this view, arguments based on economic efficiency amount to little more than condoning the bribery of in- dustry to do what it ought to be doing anyway. As a technical legal matter, the fate of the bubble depends upon the interpretation of the statutory language defining the term source of pollution. EPA's use of the policy was first taken to court in ASARCO, Inc. v. EPA, 578 F.2d 319 (D.C. Cir. 1978), an appeal of regulations in which the agency applied it to New Source Performance Standards under Section 111 of the Clean Air Act. In ASARCO, the court held the bubble inconsistent with the statute when applied to areas not in compliance with air quality standards. Congress had defined source as meaning any building, structure, facility, or installation, which, in the court's view, did not permit the agency to define it as a plant encompassing several facilities. In addi- tion, the court believed the bubble inconsistent with the statutory intent to compel reduction of pollution in non-attainment areas. A couple of years later EPA tried again. This time it applied the bubble to areas that were in compliance with air quality standards and in which the object was to avoid deterioration. This time, the agency won. The statutory provisions relevant to the issue explicitly mentioned the possibility that a source could be an entire plant, and the D.C. Circuit ruled that the bub- ble was not just permitted, it was mandatory. Alabama Power Co. v. Costle, 636 F.2d 323 (1979). Chevron resulted from another try by EPA in yet another context. This time, the agency regulations allowed states, even those in non-attainment areas, to use a bubble approach in setting up their implementa- tion plans for achieving air quality standards. The rules were, again, appealed to the D.C. Circuit in Natural Resources Defense Council, Inc. v. Gorsuch, 685 F.2d 718 (1982). It is difficult to see any real distinctions between this case and ASARCO. While the agency tried to dis- tinguish the cases, the court did not agree, and relied (continued on page 6) Copyright © 1984 American Bar Association Produced by the ABA Press

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