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HANCOCK, ATTORNEY GENERAL OF KENTUCKY v. TRAIN, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued January 13, 1976
Decided June 7, 1976
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. 199.
David D. Beals, Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the briefs were Ed W. Hancock, Attorney General, pro se, and David C. Short, Assistant Attorney General.
Deputy Solicitor General Friedman argued the cause for respondents. On the brief were Solicitor General Bork, Assistant Attorney General Johnson, Deputy Solicitor [426 U.S. 167, 168] General Randolph, Jacques B. Gelin, Robert L. Klarquist, Robert H. Marquis, Herbert S. Sanger, Jr., and Beauchamp E. Brogan. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed by William J. Baxley, Attorney General, and Henry H. Caddell and Frederick S. Middleton III, Assistant Attorneys General, for the State of Alabama; by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Philip Weinberg and Richard G. Berger, Assistant Attorneys General for the State of New York; by John L. Hill, Attorney General, David M. Kendall, First Assistant Attorney General, and Philip K. Maxwell, Assistant Attorney General, for the State of Texas; by Andrew P. Miller, Attorney General, and J. Thomas Steger, Assistant Attorney General, for the Commonwealth of Virginia; and by Evelle J. Younger, Attorney General, Robert H. O'Brien and Carl Boronkay, Assistant Attorneys General, and Nicholas C. Yost, Roderick Walston, Daniel Taaffe, and C. Foster Knight, Deputy Attorneys General, for the State of California et al., joined by Arthur K. Bolton, Attorney General, and Robert E. Hall, Assistant Attorney General, for the State of Georgia.
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. 1 The specific question is whether obtaining a permit to operate [426 U.S. 167, 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. 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) 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 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), 4 for certain air pollutants, 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 [426 U.S. 167, 170] implementation plan as long as it was adopted after public hearings and satisfied the conditions specified in 110 (a) (2).
For existing sources 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 78-79, given the EPA's nationwide air quality standards, the State is to adopt a plan setting
Experience with performance by federal sources of air pollution under this voluntary scheme 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" 11 "Federal agencies have been notoriously laggard in abating pollution." 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:
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.
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. 14 Chapter 7 of the plan included Kentucky Air Pollution Control Commission (Commission) Regulation No. AP-1, 5 (1), which provides:
Soon after the implementation plan was approved, a Commission official wrote to numerous officials responsible for various Kentucky facilities of the United States Army, 21 of the Tennessee Valley Authority (TVA), 22 and of the Atomic Energy Commission (AEC) 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. 24
The Commission continued to press the federal officials [426 U.S. 167, 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, 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." 26 Ibid. [426 U.S. 167, 176]
Kentucky then brought this suit in the United States District Court for the Western District of Kentucky. 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). 28 On cross-motions for summary [426 U.S. 167, 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:
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, 426 (1819). From this principle is deduced the corollary that
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 [426 U.S. 167, 180] v. Pennsylvania Milk Control Comm'n, 318 U.S. 261 (1943); Alabama v. King & Boozer, 314 U.S. 1, 9 (1941), and cases cited. "Here, however, the State places a prohibition on the Federal Government." 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 [426 U.S. 167, 181] requirements may be administratively enforced against federal installations.
The parties rightly agree that 118 obligates federal installations to conform to state air pollution standards or limitations and compliance schedules. 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. [426 U.S. 167, 182]
Analysis must begin with 118. 41 Although the language of this provision is notable for what it states in comparison with its predecessor, 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 [426 U.S. 167, 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 standards, 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 rejects 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." 43 When a State is without administrative means of implementing and enforcing its standards [426 U.S. 167, 184] against federal sources, a duty to comply with those standards is said to be utterly meaningless. 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. 45 It is true that virtually every State [426 U.S. 167, 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. 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 [426 U.S. 167, 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." 47 [426 U.S. 167, 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 80 -84. 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 [426 U.S. 167, 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." 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." 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 . . . ." 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." 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, [426 U.S. 167, 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, 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:
In drawing on the manner in which the Clean Air Act has divided the authority to regulate new sources of air pollutants 57 and the emission of hazardous air pollutants 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 [426 U.S. 167, 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 [426 U.S. 167, 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 59 are set by the EPA for various categories of sources and are uniform throughout the Nation. A comprehensive enforcement [426 U.S. 167, 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
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:
Section 302 (e) includes a "State" in the definition of a "person," 42 U.S.C. 1857h (e), and 304 (f) provides:
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. 62 Given this relationship between [426 U.S. 167, 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, 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. 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, [426 U.S. 167, 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." 65
The judgment of the Court of Appeals is
[ 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 190-194.
[ 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 rule-making, 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 as 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, [426 U.S. 167, 175] 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 been superseded by Executive Order No. 11752, 3 CFR 380 (1974). See infra, at 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.
[ 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 113 was discretionary. The decision not to commence actions [426 U.S. 167, 177] 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." [426 U.S. 167, 178] Alabama v. Seeber, 502 F.2d 1238 (1974), cert. pending, No. 74-851. See also California v. Stastny, 382 F. Supp. 222 (CD Cal. 1972).
[ Footnote 30 ] Art. VI, cl. 2.
[ Footnote 31 ] Art. I, 8, cl. 17:
[ Footnote 33 ] United States v. United Mine Workers, 330 U.S. 258, 272 (1947) (footnote omitted). See United States v. Herron, 20 Wall. 251, 263 (1874); United States v. Knight, 14 Pet. 301, 315 (1840).
[ Footnote 35 ] Mayo v. United States, supra, at 447, 448 (footnote omitted).
[ 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. 200.
[ 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 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 permit system may have been "encouraged" by the EPA as its "preferred approach," see Train, 421 U.S., at 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 [426 U.S. 167, 185] 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:
[ 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 pre-empting state regulation of moving sources,
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 [426 U.S. 167, 187] 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 pre-empted 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 [426 U.S. 167, 198] 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 64 ] The Senate Committee on Public Works has recently reported such legislation. See S. Rep. No. 94-717 (1976).
[ Footnote 65 ] Tr. of Oral Arg. 22.
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. [426 U.S. 167, 200]