(dissenting).
I dissent.
The issue presented by this case is an administrative agency’s authority to set regulations in accordance with its statutory authority and the deference an appellate court must show to determinations made by an administrative agency when there is substantial evidence to support them. The majority opinion, without examination of the relevant statutory authority, concludes that the Environmental Improvement Board lacks this authority. The opinion then disregards the substantial evidence found in the record to conclude that there is no need for a change in the emission regulation.
A brief synopsis of the governing statutes is necessary to frame the issues in the case. New Mexico, pursuant to its Air Quality Control Act, (§§ 12-14-1 to 12-14-13, N.M.S.A.1953 (Repl.Vol. 3, Supp. 1975)) has adopted an Ambient Air Quality Standard for sulfur dioxide, § 201, Air Quality Control Regulation. This standard specifies the maximum allowable concentration of various air contaminants, including sulfur dioxide. Standards are not designed to “provide a sharp dividing line between air of satisfactory quality and air of unsatisfactory quality. They are, however, numbers which represent objectives that will preserve our air resources.” Section 201, Air Quality Control Regulation.
The federal Clean Air Act also plays an important role in this case. 42 U.S.C. § 1857 (1976). Under the federal scheme, a national primary ambient air quality standard for sulfur dioxide has been promulgated. 40 C.F.R. § 50.4 (1975). Primary standards are said to “define levels of air quality which the Administrator judges are necessary, with an adequate margin of safety, to protect the public health.” 40 C.F.R. § 50.2(b) (1975); 42 U.S.C. § 1857c-4(b)(l) (1976). The Act requires each state to submit a plan which specifies how the state will achieve and maintain the national standard, 42 U.S.C. § 1857c-5(a) (1) (1975). New Mexico’s implementation plan was rejected insofar as it related to control of sulfur dioxide emissions in the Four Corner’s area, and the Environmental Protection Agency imposed its own stricter controls. 40 C.F.R. § 52.1624 (1975). The Environmental Protection Agency has proposed acceptance of New Mexico’s plan on the basis of the regulations which are the subject of this suit. 40 Fed.Reg. 48941 (1975).
Another statutory mechanism with an important bearing on this case is the New Mexico and federal treatment of new sources of air pollution. The New Mexico Air Quality Control Act provides authority for the Board to deny a permit for new sources if “the new source will emit a hazardous air pollutant or air contaminant in excess of a federal standard of performance, or a regulation of the board.” Section 12-14 — 7(C) (3), supra. The federal provision, which is also subject to enforcement by the Administrator if the state plan is inadequate, states that new source permits must be denied if granting them will prevent the achievement of the national air quality standards. 42 U.S.C. § 1857c-5 (a)(2)(D) (1976).
The fundamental dispute between the litigants here concerns the manner in which emission regulations are fixed. Industry contends that emission regulations must be set at such a level that the New Mexico standard will be just met, but not exceeded. Another way of putting this is to say that once the Board has decided on the air quality standard, its only job is to calculate what level of emissions will cause this standard to be met. The Board maintains that the standard does not control the emissions regulation; different factors were stressed in arriving at a standard than in arriving at a permissible emissions level. The Board argues that its statutory mandate requires it to set the emissions regulation after examination of various considerations; it is not directed to merely select a standard and then tailor the emissions regulation to' fit it.
Once it is decided whether the Board can set emission regulations at a level lower than that necessary to meet the standard, the remaining issue is what statutory provisions are intended to control the Board’s discretion. This inquiry is necessary to determine whether the Board’s decision is in accordance with law.
The first issue — whether the standard automatically sets the emissions level— must be resolved by examination of the statute giving the Board authority to set standards and regulations.
The relevant portion of the statute reads as follows:
“12-14-5. Duties and powers of board. —A. The board shall prevent or abate air pollution.
“B. The board shall:
“(1) Adopt, promulgate, publish, amend and repeal regulations consistent with the Air Quality Control Act [12-14 — 1 to 12-14 — 13] to prevent or abate air pollution, including regulations prescribing air standards within the geographic area of the board’s jurisdiction, or any part thereof. Regulations shall not specify the method to be used to prevent or abate air pollution. Any regulation promulgated under this section shall be consistent with federal law, if any, relating to control of motor vehicle emission. In making its regulations, the board shall give weight it deems appropriate to all facts and circumstances, including but not limited to:
“(a) character and degree of injury to, or interference with, health, welfare, visibility and property;
“(b) the public interest, including the social and economic value of the sources and subjects of air contaminants;
“(c) technical practicability and economic reasonableness of reducing or eliminating air contaminants from the sources involved and previous experience with equipment and methods available to control the air contaminants involved;”
The statute refers to both standards and regulations. It includes, within the general directive to adopt regulations to prevent or abate air pollution, the directive to adopt regulations prescribing air standards. It then states that in making its “regulations” the Board should consider the enumerated factors. I would conclude that because “regulations” includes “standards” the legislative intent was to require attention to the enumerated factors in making both regulations and standards.
Industry argues that the overriding purpose of the Board’s regulatory power is to prevent “air pollution” and that regulation of anything less than air pollution is outside the Board’s jurisdiction. The premise on which industry’s argument is bottomed is that the ambient air quality standards define air pollution. “Air pollution” is defined in the Act as “ . the emission, except as such emission occurs in nature, into the outdoor atmosphere of one or more air contaminants in such quantities and duration as may with reasonable probability injure human health, animal or plant life, or as may unreasonably interfere with the public welfare, visibility or the reasonable use of property.” Section 12-14-2(B), supra. The case before us does not concern how the standards were established, but we can ascertain from the statutory provisions that there is no necessary relationship between the standard and the definition of air pollution. Even if it were assumed that the standard defines air pollution, the Board is directed to “prevent or abate” air pollution; and in abating air pollution it can regulate lesser evils than those that “with reasonable probability injure human health, animal or plant life.”
Another indication that the legislature did not intend to prohibit all regulation of emissions under the air quality standard is found in the statutory provision for municipal and county-wide administration of air quality. Section 12-14-4(A), supra. Under this section local Boards, which are subject to the same statutory direction as the state board to regulate “air pollution”, are allowed to set stricter regulations than the state regulations. Section 12-14-4(A), supra; Wylie Bros. C. C. v. Albuquerque-Bernalillo C.A.C.B., 80 N.M. 633, 459 P.2d 159 (Ct.App.1969).
Once it is determined that the Board is not compelled to set the emissions regulation at such a level as to meet the standard, the issue becomes whether the Board has acted in accordance with law in adopting the emissions regulation. The applicable statutory provisions are, as shown above, enumerated in § 12-14 — 5(B) (1), supra.
Two of the reasons given by the Board relate to the need to leave room for more industrial development in the Four Corner’s area. The problem addressed by the Board is that under its own statute, and under the federal Clean Air Act, permits for new industry cannot be given if allowing the new industry will cause a violation of the air quality standards. Put simply, if the present regulations allow pollution up to the level of the standards, there will be no room for a new industry if it produces any pollution.
The majority opinion does not contend that there was not substantial evidence of future growth and of the effect of new plants on the ambient air quality, but instead contends that the Board has no authority to regulate for these reasons. The Board’s reasons for its adoption of this regulation is that this emission level will protect “welfare, property and the public interest” by keeping air pollution considerations from being a restraining factor on future growth. By statute the Board is directed to consider "the public interest, including the social and economic value of the sources and subjects of air contaminants” (§ 12 — 14—5(B) (1) (b), supra) in making its regulations. The “public interest” is a broad enough concept to permit the Board to weigh how the public will best be served: by permitting the first plants in the area to “use up” the clean air, or by weighing the hardship to these appellants against the “social and economic value” of the new industries which the area expects to attract. See, New Mexico Mun. L., Inc. v. New Mexico Envir. Imp. Bd., 88 N.M. 201, 539 P.2d 221 (Ct.App.1975), (administrative interpretation of “broad legislative concerns”). The Board has also concluded that the “welfare and property” of the area’s citizens will be unduly interfered with if new plants are kept out because of the pollution of these plants. Consideration of the welfare of these citizens is specifically authorized in subsection (B)(9) of this statute where the Board is instructed in developing its plan for the regulation of ■air pollution to recognize “the differences, needs, requirements and conditions in the different areas of the state”. Section 12-14-5 (B)(9), supra.
None of the considerations which the statute specifies are limited in time to the present. Considerations such as the “public interest” do not express a legislative intent that the Board be shortsighted in its evaluations. There is no statement in the regulations that the social and economic effects of the Board’s actions occur “as a consequence not by design”, and the Board could be considered derelict in its duties if it did not plan for the future effect of the decisions it makes today.
The second reason given by the Board for its decision is that removal of at least 70% of the sulfur dioxide emissions is necessary if New Mexico is to regain control of its air. The Air Quality Control Act states that the Board is "the state air pollution control agency for all purposes under federal legislation relating to air pollution and may take all action necessary to secure to this state and its political subdivisions the benefits of such federal acts.” Section 12-14-3, supra. The federal Clean Air Act gives primary responsibility to each state to maintain the air quality standards within that state. 42 U.S.C. 1857c-2(a) (1975). Practical reasons dictate that the Board is justified in acting to obtain control over New Mexico’s air. Unless the Board regains this authority, the legislative intent that a New Mexico agency deal with questions of air quality, as indicated by establishing this Board, will be frustrated. Further, if the Board continues to promulgate regulations below the federal requirements, its actions will be without effect, a result we cannot assume the legislature desired. Trujillo v. Romero, 82 N.M. 301, 481 P.2d 89 (1971); Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965).
The next three reasons relate to the technical and economic feasibility of achieving the emission regulations which were adopted. The majority opinion does not take issue with the Board’s conclusion that the regulations are technically and economically feasible.
The majority opinion does conclude, despite the appellants’ failure to contest this point, that there is no substantial evidence to support the Board’s conclusion that it is necessary to modify the old emission regulation to prevent the standard from being violated. I think there is substantial evidence to support the Board’s conclusion and that the majority opinion disregards the standards of appellate review in reaching a contrary conclusion. Royal International Optical Co. v. Texas State Optical Co., 90 N.M. -, 559 P.2d 398 (Ct.App.1976) (Sutin, J., dissenting) ; cert, granted, March 1, 1976. Mr. Nicholson’s testimony was that “ . on three different occasions, by two different people, and using models which have been matched to actual monitoring data for the Four Corners plant, it was shown that existing emission regulations for SO2 [sulfur dioxide] are not sufficient to prevent state ambient air quality standards from being exceeded.” His statement on cross-examination, quoted in the majority opinion, that 70% control is sufficient, cannot be cited to demonstrate that 35% control (the old regulation) is sufficient. The testimony of Dr. Michael Williams of the Sierra Club was that control over 90% would be required to meet the air quality standard. Finally, the federal government, with a standard almost the same as New Mexico’s (40 C.F.R. § 50.4) found that New Mexico’s control was insufficient. The evidence was conflicting, and there was substantial evidence to support the Board’s findings.
Finally, I disagree with the statement that there was no substantial evidence to support the Board’s finding that a higher degree of control is necessary to prevent interference with visibility. All the Board said is that sulfur dioxide emissions can contribute to a visibility problem; although this was admittedly not the critical issue in the hearings, the testimony of the New Mexico Lung Association and the Air Pollution Primer (National Tuberculosis and Respiratory Disease Association, New York, New York, 1971) introduced by them support this finding.
The regulations of the Board should be upheld.