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

handle is hein.journals/admreln10 and id is 1 raw text is: ADMINISTRATIVE


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

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