Sierra Club v. Larson

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 92-2227

SIERRA CLUB, ET AL.,

Plaintiffs, Appellants,

v.

THOMAS D. LARSON, ET AL.,

Defendants, Appellees.

No. 92-2323

SIERRA CLUB, ET AL.,

Plaintiffs, Appellants,

v.

THOMAS D. LARSON, ET AL.,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

No. 92-2282

SIERRA CLUB, ET AL.,

Petitioners,

v.

JULIE BELAGA, ETC.,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE ENVIRONMENTAL PROTECTION AGENCY

Before

Boudin, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Circuit Judge.

Thomas B. Bracken with whom Bracken & Baram was on brief for

appellants.
George B. Henderson, II, Assistant United States Attorney, with

whom Myles E. Flint, Acting Assistant Attorney General, A. John

Pappalardo, United States Attorney, Robert L. Klarquist, Attorney,

Department of Justice, Michael Kenyon, Attorney, United States

Environmental Protection Agency, Judith Tracy, Attorney, United States

Environmental Protection Agency and Irwin Schroeder, Attorney, Federal

Highway Administration, were on joint brief of appellees and
respondent, for federal appellees.
William L. Pardee, Assistant Attorney General, Commonwealth of

Massachusetts, with whom Scott Harshbarger, Attorney General,

Commonwealth of Massachusetts, was on joint brief of appellees and
respondent, for state appellees.

August 6, 1993

BOUDIN, Circuit Judge. In this case, the Sierra Club

appeals from the judgment of the district court declining to

enjoin construction of the central artery/third harbor tunnel

project in Boston. It also petitions to review the action of

the Environmental Protection Agency in approving an amendment

to Massachusetts state regulations that bears upon the

project. We affirm the district court and deny the petition

for review.

I. THE FACTS AND PRIOR PROCEEDINGS

Massachusetts, through its Department of Public Works,

has begun construction of a mammoth project that includes

rebuilding a major segment of Interstate Route 93 that now

runs on a viaduct through downtown Boston and is known as

"the central artery." When the central artery/tunnel project

is completed some years from now, the highway segment in

question will be widened, sunk below ground level, and mostly

covered. It will connect at the north with a new bridge

across the Charles River and at the south with a newly built

third harbor tunnel running from South Boston to Logan

Airport in East Boston.

The depressed and covered portion of the new highway and

the tunnel will be ventilated by ducts and fans in six

buildings located on the highway route and near the tunnel

portals. Vast amounts of air will be drawn into the covered

highway and tunnel, and the mixture of air and motor vehicle

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emissions will be pumped up through the six buildings and

exhausted through stacks ranging from 90 to 225 feet high.

Studies indicate that the project will reduce traffic

congestion, increase average speeds, and reduce area-wide

carbon monoxide and hydrocarbon emissions.

The Sierra Club, a non-profit environmental group,

believes that whatever the area-wide effects of the project,

it will create new "hot spots" of pollution in certain of the

neighborhoods near to the six ventilation buildings. In its

view, pollution control equipment, in the nature of after-

burners, should be installed in the ventilation buildings.

The federal and state governments, which have filed a joint

brief in this case, deny that any dangerous hot spots will be

created, pointing to studies conducted as part of the

project's environmental review. They also assert that after-

burner technology is not feasible because of the low

concentration of pollutants in the vented air.

In March 1991, the Sierra Club and certain of its

members who live in the vicinity of the central artery

brought suit in district court against a collection of state

and federal officials associated with the project. The

gravamen of the suit was the Sierra Club's claim that the

ventilation buildings planned for the project comprised a

"major stationary source" of air pollution as that term is

used in the Clean Air Act, 42 U.S.C. 7401, et seq., and

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counterpart Massachusetts regulations, 310 C.M.R. 7.00 et

seq. It is common ground that, if the ventilation buildings

were so classified, then the project would require a permit

or permits from Massachusetts that have not been secured. To

frame this issue entails a brief description of the statute.

The Clean Air Act enacted a complex statutory regime,

several times amended, to control and mitigate air pollution

in the United States. Broadly speaking, Title I of the

statute regulates stationary sources of pollution and Title

II regulates mobile sources, most importantly motor vehicles.

For specified pollutants, national air quality standards are

promulgated by EPA. 42 U.S.C. 7409. Whether new

construction of polluting facilities is permitted in an area,

and what kind of controls are required, depends on whether

the area is below or above the standard for each pollutant.

Part C, 42 U.S.C. 7470-7492, governs permits where the

standard has been attained; Part D applies to so-called

nonattainment areas. Id. 7501-7515.

In either event, the construction of a "major" new

stationary source--normally, one emitting 100 or more tons of

pollutant each year, see 42 U.S.C. 7602(j)--generally

requires a permit. 42 U.S.C. 7475(a), 7502(c)(5).1 In

1The definition of "major stationary source" in section
7602(j) directly governs permits under part D where the same
phrase is used in section 7502(c)(5)'s permit requirement.
Part C requires permits for specified "major emitting
facilities," in areas already in compliance with pollution

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the case of Boston, some of the pollutants that will flow

through the proposed ventilation buildings currently exceed

national standards so that new major sources are subject to

the more stringent class of limitations; other pollutants are

below the standards and less stringent limitations apply. By

way of example, the Boston area exceeds the national standard

for carbon monoxide, and to secure a permit the highway

proponents would have to show that a major stationary source

can achieve the "lowest achievable emission rate" for that

pollutant. 42 U.S.C. 7503(a)(2).

The Clean Air Act allocates different responsibilities

to the EPA on the one hand and to the states on the other.

Each state is directed to adopt and submit to EPA for

approval a state implementation plan to achieve and maintain

the national standards established by EPA. 42 U.S.C.

7410(a). See also id. 7471, 7502. If the state fails to

adopt an approvable plan, the EPA must adopt federal

regulations for the area. 42 U.S.C. 7410(c).

Massachusetts has an approved state implementation plan.

Under the Clean Air Act, "citizen" suits may be brought to

enjoin a project that requires a permit under Parts C or D

but has not obtained one. 42 U.S.C. 7604(a)(3).

standards, 42 U.S.C. 7475, 7479, but--with qualifications
not here relevant--the statute instructs that the terms
"major stationary source" and "major emitting facility" be
used interchangeably. 42 U.S.C. 7602(j).

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In this case, in April 1991 the Sierra Club and certain

of its members sought a preliminary injunction against

construction of the central artery and tunnel project. The

request was denied on July 30, 1991. After transfer of the

case to another judge, the district court received further

briefing and argument. On September 16, 1992, the court

granted summary judgment in favor of the government

defendants, state and federal, holding that the ventilation

buildings did not comprise stationary sources subject to pre-

construction permit requirements. The Sierra Club and its

named members appealed.

Shortly before the lawsuit, the Massachusetts Department

of Environmental Protection submitted to the EPA on

January 30, 1991, a new regulation--regulation 7.38, codified

as 310 C.M.R. 7.38--as a proposed amendment to the

Massachusetts state implementation plan. This regulation

seeks to classify tunnel ventilation systems as "indirect

sources" under the Clean Air Act. In the early 1970s, the

EPA had begun to require that state implementation plans

regulate such facilities as parking lots, highways and

garages that do not emit pollutants themselves but attract

numbers of polluting vehicles. Congress responded in 1977 by

barring the EPA from regulation of what were called "indirect

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sources." 42 U.S.C. 7410(a)(5)(B).2 However, Congress at

the same time gave the states permission, if they so chose,

to regulate such indirect sources themselves as part of their

state implementation plans. Id. 7410(a)(5)(A), (C).

Massachusetts, exercising this option through regulation

7.38, proposed to regulate roadway/tunnel ventilation

systems as indirect sources. The regime involves

certification by the builder that specified pollution

standards will be met, and the Department of Environmental

Protection may accept, conditionally approve, or reject the

certification after notice and hearing. Monitoring after

construction and periodical renewal of the certificate are

required. The new regulation also states that the systems

are not subject to the pre-construction permitting required

for various stationary sources under regulation 7.02, 310

C.M.R. 7.02.

The Sierra Club opposed the approval of regulation 7.38

when Massachusetts submitted it to the EPA as an amendment to

the state implementation plan. The Sierra Club argued that

the effect would be indirectly to relieve the project at

issue in this case of the more stringent pre-construction

2To the extent that a highway or other major indirect
source is federally assisted, the EPA retains some direct
regulatory authority, see 42 U.S.C. 7410(a)(5)(B); but no

claim has been made that the project in this case is in
violation of any requirements laid down by the EPA under this
reservation.

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approval required of major stationary sources under the Clean

Air Act and the Massachusetts regulations that apply to

stationary sources. After notice and receipt of public

comments, the EPA on October 8, 1992, published notice of its

approval, 57 Fed. Reg. 46310 (1992). The Sierra Club then

petitioned for review of the EPA's action in this court

pursuant to 42 U.S.C. 7607(b)(1).

Because of the overlapping issues and common subject,

this court consolidated the two appeals taken from the

district court judgment with the proceeding for direct review

of the EPA action. In this opinion, we address first a

jurisdictional objection raised by the federal defendants,

then statutory issues posed by the appeals from the district

court, and finally the additional issues posed by the

Massachusetts regulations and by the petition to review the

EPA's action approving regulation 7.38.

II. JURISDICTION

The federal defendants renew in this court their

argument, not passed upon below, that the district court

"lacked jurisdiction" over the complaint against the federal

defendants. The "citizen suits" provision of the Clean Air

Act permits private suits in three defined classes of cases.

As already noted, it explicitly permits a private suit

against anyone who "proposes to construct" any major

stationary source without a permit required by parts C or D.

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42 U.S.C. 7604(a)(3). The federal defendants deny that

they are proposing to construct the project or any part of

it; in other words, they argue that if anyone is subject to

suitunder subsection(a)(3), itis onlyMassachusetts officials.

The statute also permits such citizen suits where

emission standards or limitations are exceeded, or where the

EPA Administrator has failed to perform an act or duty under

the Clean Air Act "which is not discretionary . . ." 42

U.S.C. 7604(a)(1), (2). As to these categories, the

federal defendants argue that any violations of emission

standards or limitations would be those of the state, and

that the EPA Administrator cannot be sued for violating a

non-discretionary duty since enforcement by the Administrator

is inherently a discretionary matter.

The Sierra Club, responds, unpersuasively, that any

jurisdictional objection has been waived by the failure of

the federal defendants to cross appeal.3 More usefully, the

Sierra Club urges that the Administrator did violate a non-

discretionary duty by failing to take action to enjoin the

project, and that in any event the Federal Highway

Administration is so closely involved in the funding and

planning of this project as to be effectively a party to its

3The jurisdictional objection could be viewed as an
alternative ground for sustaining the denial of an
injunction, dispensing with any need for a cross appeal. In
any event, courts are expected to "notice" jurisdictional
objections even if no one has raised them.

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construction. However, like the government brief, the Sierra

Club's brief is silent as to what practical implications

these questions have in this case where no one has disputed

that Massachusetts defendants can be enjoined from

construction if a permit is required.

Absent some showing that the jurisdictional issue has

practical importance in this case, we decline to address it.

Since the Massachusetts officials are subject to suit for

constructing the project without a permit, the merits must be

reached in any event. And since we resolve the merits in

their favor, the jurisdictional issue as to the federal

defendants is pretty close to moot, affecting only the form

of the dismissal as to them. There is ample precedent for

by-passing jurisdictional objections when the court can more

easily dismiss on the merits. E.g., Norton v. Mathews, 427

U.S. 524, 532 (1976).

III. THE STATUTORY ISSUES

The merits of the appeals from the district court

judgment turn principally on a narrow point of statutory

construction, namely, whether the ventilation buildings that

will vent the underground highway and harbor tunnel comprise

a "stationary source or sources" within the meaning the Clean

Air Act. If so labeled, a permit is required; apparently the

amount of pollutant needed to qualify as a "major" source is

not at issue. Easily stated, the issue is less easily

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resolved: there is little by way of statutory definition, no

useful judicial precedent or legislative history offered to

us, and a reasonable possibility that Congress never gave any

thought to the idiosyncracy posed by these ventilation

buildings.

Starting as one normally does with language, parts C and

D, which contain the pre-construction permit requirements for

major stationary sources, originally contained no definition

of stationary source. Instead part D defines a "major

stationary source" as "any stationary facility or source"

emitting the specified quantity of pollutant. Part C, by

cross-reference (see note 1, above), adopts the same

language. Part A, concerned with so-called performance

standards, other than air quality standards, did use the term

"stationary source" in 42 U.S.C. 7411, defining it as "any

building, structure, facility, or installation which emits or

may emit any air pollutant." 42 U.S.C. 7411(a)(3). That

definition, however, was adopted "for purposes of this

section," i.e., section 7411.4

4The obscurity of the relationship between the part A
definition just quoted and the "major stationary source" in
parts C and D was the subject of comment by the Supreme Court
in Chevron U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 859-860 (1984). Yet another definition

of stationary source appears in, and is apparently limited
to, a provision of part A concerned with accidental release
of hazardous substances. See 42 U.S.C. 7412(r)(2)(C).

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Thus far the breadth of the language appears helpful to

the Sierra Club position, since linguistically a ventilation

system with a stack could be called a "facility," a "source"

or even a "building." The table tilted back the other way in

1977 when Congress amended the Clean Air Act to exclude

"indirect sources" from mandatory coverage in state

implementation plans. 42 U.S.C. 7410(a)(5)(A). An

indirect source is defined in the statute as

a facility, building, structure, installation, real
property, road, or highway which attracts, or may
attract, mobile sources of pollution. Such term
includes parking lots, parking garages, and other
facilities subject to any measure for management of
parking supply . . . .

42 U.S.C. 7410(a)(5)(C). Asserting that auto makers should

bear the brunt of reducing tailpipe emissions, Congress

imposed the limitations already described on the EPA efforts

to regulate the magnets for vehicles rather than the vehicles

themselves. See H.R. Rep. No. 294, 95th Cong., 1st Sess.

219-227 (1977).

Although indirect sources are not in terms excluded from

the definition of stationary sources--the former provision is

cast instead as a limitation on EPA authority--the effect of

the amendment is to treat indirect sources as a separate

category of sources subject to a different legal regime. The

states may still "choose[]" to regulate them in state

implementation plans, 42 U.S.C. 7410(a)(5)(i), but the

decision whether and how to regulate is left largely to the

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states. Our best reading of the statute is that, at least

after 1977, an indirect source is not to be treated as a

stationary source under Parts C and D. Cf. South Terminal

Corp. v. EPA, 504 F.2d 646, 669 (1st Cir. 1974) ("parking

structures, which themselves emit no pollutants but instead

only attract vehicles which emit pollution, are not

stationary sources").

Assuming that a stationary source and an indirect source

are exclusive categories, the difficult question remains

whether ventilation buildings should be assimilated to the

former or to the latter. It is a question that dictionaries

cannot answer. The terms are technical rather than common

ones, and they were developed against the background of a

complex statute with interlocking provisions and specific

goals. Nor does legislative history furnish any clue as to

Congress' intent for ventilation buildings. Perhaps this

small corner among possible applications of the statute was

simply overlooked.

Similarly, it is difficult to derive any clear cut

answer from analogy or policy.5 A covered highway or tunnel

5The Sierra Club urges that the definition of stationary
source is analogous to the definition of "point source", 33
U.S.C. 1362(14), in the Clean Water Act and that we should
regard the related caselaw as precedent. See National

Wildlife v. Gorsuch, 693 F.2d 156, 173-174 (D.C. Cir. 1982).

We find little help from a different term used in a different
statutory scheme. Nor do we think that it matters whether,
as the Sierra Club asserts, pollution tests or projections
done by engineers for the ventilation systems are akin to

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with a ventilation system is akin to an uncovered highway or

open sided garage--clearly, indirect sources--in multiple

senses: in each instance the facility or space attracts more

cars, pollution in the vicinity may be greatly increased, and

the initial source of the pollution is the cars themselves.

On the other hand, the possibility exists (no information has

been provided to us on the point) that the large scale

ventilation systems may be more potent than a highway or

garage in concentrating and expelling pollutants in a

specific area; and on this ground, if no other, one might

distinguish between them and a facility that is ordinarily

ventilated without mechanical aid. Thus the analogy hardly

dispels all doubt.

Two other arguments pressed by the parties seem to us

inconclusive. The Sierra Club points us to a new provision,

added to Title I in 1990 without limitation as to its

application, which for the first time defines stationary

source as meaning "generally any source of an air pollutant

except those emissions resulting directly from an internal

combustion engine for transportation purposes or from a

nonroad engine or nonroad vehicle as defined in section 7550

. . . ." 42 U.S.C. 7602(z). The Sierra Club stresses the

word "directly," arguing that the emissions from the

those done for stationary sources; presumably, they would
also be similar if the system vented a large garage, which is
unquestionably an indirect source.

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ventilation shaft do not fit the "except" clause because the

auto emissions are emitted first ("directly," in the Sierra

Club's view) into the air of the covered highway or tunnel

andonly thengatheredbyfansand spewedoutthroughtheventilators.

The government brief offers its own parsing of this new

language, but both sides' arguments about what is "direct"

and what is an "indirect" emission have the flavor of a

Medieval dispute in theology. The reality is that Congress

framed this new subsection (z) to deal with an entirely

different problem, namely, to include within the stationary

source definition mobile sources of pollution, like ships in

port and portable asphalt concrete plants, so far as they

emit pollutants as part of their stationary activities, e.g.,

by leaking fuel at dockside (in contrast to engine emissions

that occur when the ship or plant travels to a new

destination). S. Rep. No. 228, 101st Cong., 1st Sess. 376

(1990). In other words, Congress was not addressing tunnel

ventilation when it drew up this new provision.

Conversely, we are doubtful about the government's

argument based upon the structure of the statute.

Admittedly, Congress did establish two different regimes:

that in Title I, with which we are concerned, governed

stationary sources; that in Title II created a quite

different regime, part of which is familiar to anyone who has

a car inspected, to regulate vehicle emissions directly.

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This symmetry could suggest that tailpipe pollution--the

source of the pollutants at issue here--was not meant to fall

within Title I at all. The difficulty is that Congress might

not have minded two layers of control, and contrivances like

the "indirect source" provision in Title I blur the notion

that auto pollution is exclusively a Title II problem.

In the end, we think the balance is tipped here by the

explicit administrative interpretation of the Clean Air Act

adopted by the EPA. In approving the addition of regulation

7.38 to Massachusetts' state implementation plan, the EPA

stated:

Tunnel ventilation systems, which do not generate
their own emissions but rather simply funnel
emissions from mobile sources, are not stationary
sources within the meaning of the Clean Air Act.

57 Fed. Reg. 46310, 46311 (1992). The Supreme Court has told

us that in construing a statute the courts should ordinarily

show a measure of deference to the agency charged with

administering the statute.6 The case most often cited for

that precept is Chevron, which involved a different

application of the very same "stationary source" provision

that is now before us.

6See Environmental Protection Agency v. National Crushed

Stone Ass'n, 449 U.S. 64, 83 (1980); Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984);

United States v. City of Fulton, 475 U.S. 657, 666 (1986);

National Labor Relations Board v. Food and Commercial Workers

Union, 484 U.S. 112, 123 (1987).

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The Chevron doctrine has been the subject of much debate

and, in subsequent decisions, the Supreme Court may have

softened its impact somewhat and in some situations. See,

e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987). To

be sure, the courts have the last word on statutory

interpretation--the question is one of the weight to be

accorded to agency views--and often the statute's language or

history leaves no latitude for the agency. In other cases

the issue of interpretation may be so central to the

operation of the statute that, whether or not Congress'

meaning is clear, it is improbable that Congress meant for

the courts to defer to the agency. We do not think these or

other qualifications on Chevron deflect its impact here.

On the contrary, this statute is ambiguous on the issue

before us, at least when the words "stationary source" are

read together with the "indirect source" proviso and the

structural juxtaposition of Titles I and II. The

application of the stationary and indirect source language to

tunnel ventilation is not the heart of the statute but a

fringe issue on which Congress did not clearly express its

intent. The Clean Air Act is an immensely complex and

technical statute more familiar to EPA than to anyone else,

and the task of making its parts function together

harmoniously is entrusted to many actors but above all to the

EPA.

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In sum this is a case in which Chevron and deference to

the agency are not make-weights or subsidiary arguments.

Rather, in this fairly debatable case, where statutory

language is ambiguous, legislative history is silent and

policies and analogies can be and have been mustered on both

sides, we think that the EPA's unqualified and precise

reading is decisive. It is unnecessary to calibrate

perfectly the weight to be accorded to the agency view in a

case of this species: once "considerable" weight is accorded

to EPA's reading of the statute, see Chevron, 467 U.S. at

844, it is enough to tip a set of scales otherwise so closely

balanced.

IV. THE MASSACHUSETTS REGULATIONS AND EPA APPROVAL

Our concern with the district court case is not quite

over. Even if Congress did not designate the ventilation

facilities in this case as stationary sources, the

possibility remains that Massachusetts has adopted in its

state implementation plan--and then sought to ignore for its

own construction project--pertinent legal restrictions that

can be implemented through a suit under the Clean Air Act.

Of course, not every state-law restriction on a project is a

matter of federal concern, but a state restriction that is

part of a federally approved state implementation plan under

the Clean Air Act may at least in some circumstances be

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within the purview of a citizens suit under 42 U.S.C. 7604.

At one point in its brief, the Sierra Club seems to

argue that whatever Congress may have meant by stationary

source, Massachusetts in its general permit requirement

regulation 7.02, 310 C.M.R. 7.02, has required pre-

construction approval of a class of facilities that includes

the ventilation buildings in this case. One version of

regulation 7.02 has been approved by EPA as part of

Massachusetts' state implementation plan. Although

Massachusetts has adopted a later version not yet approved,

we will assume arguendo that the original, approved version

of the regulation still exists as a matter of federal law and

that a violation of this version might well be remedied by a

citizen suit under the federal statute.7

The difficulty with the Sierra Club's argument, as the

government brief points out, is that this regulation on its

face applies to a short list of specific facilities (e.g.,

chemical products manufacturing plants) that do not include

highways, tunnels or associated ventilation systems. The

7The Sierra Club also argues that the more recent
version of regulation 7.02 applies to the project (or would,
if not invalidly qualified by regulation 7.38); but we need
not decide whether the more general language of the new
version could embrace highway and tunnel ventilation systems.
The new version does not reflect a federally approved
requirement, nor do we think that it casts any light upon, or
represents an exercise of authority under, the older version.

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regulation also applies to "such other facilities as the

[state] Department [of Environmental Protection] may

require," but that state agency has not required pre-

construction review of the ventilation buildings under this

version of the regulation. The most that the Sierra Club can

extract from the affidavit submitted by the head of the

agency is that his agency wobbled over the issue of how to

regulate the ventilators at issue in this case, and finally

decided to propose the "indirect source" regime now embodied

in regulation 7.38.

Regulation 7.38 which now governs tunnel ventilation

systems says that they are not subject to regulation 7.02.

We think that this exclusion seeks to remove ambiguity and is

very weak evidence that the new version of regulation 7.02

would otherwise cover such systems, and no evidence at all of

the meaning of the old version. Nor do we agree with the

Sierra Club that its reading of old regulation 7.02 is borne

out by Town of Brookline v. Commissioner of the Department of

Environmental Quality Engineering, 387 Mass. 372, 439 N.E.2d

372 (1982). That case involved the application of regulation

7.02 to a diesel fuel-powered facility (in fact, an

electrical generating station), which is listed as a facility

automatically covered by old regulation 7.02.

To construe the old version of regulation 7.02

definitively is a daunting task, for it was complex, ill-

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structured, and apparently confusing even to the state agency

that administered it. But the Sierra Club's argument depends

upon a showing by it that the old regulation 7.02 did govern

highway and tunnel ventilation systems. Such systems do not

fall within the list of specifically named facilities in the

regulation. Similarly, the Sierra Club has not shown that

the state agency ever extended that version of the regulation

to such systems under the "may require" clause.

This brings us to the attack on regulation 7.38 that is

the subject of Sierra Club's direct review petition. One

might at first wonder why the Sierra Club is interested in

overthrowing a regulation which, if less stringent than the

pre-construction permit requirement for major stationary

sources, is at least a sizable step in the direction of

regulating ventilation systems, a step that the state need

not take at all if--as the EPA has ruled--such systems are

not stationary sources but merely adjuncts to indirect

sources. Indeed, the EPA's notice approving the new

regulation notes that the Conservation Law Foundation

endorsed it. 57 Fed. Reg. 46310, 46311 (1992).

The answer is that the Sierra Club, with considerable

imagination, has constructed the following argument: the 1990

amendments to the Clean Air Act contained a savings clause

that sought to forbid states from softening pre-amendment

"control requirement[s]" in areas that had not attained the

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national air quality standard for a pollutant, 42 U.S.C.

7515; the Boston area has admittedly not met these standards

for certain pollutants; and therefore (says the Sierra Club)

regulation 7.38 is in violation of the savings clause because

it substitutes as to tunnel ventilation systems the softer

regime of the new regulation 7.38 for the more stringent,

previously applicable regime of regulation 7.02.

We will assume without deciding that the savings clause

would prevent the weakening of a state implementation plan.

But even so we do not read the savings clause to refer to

anything other than an effective, federally approved state

implementation plan.8 It is the older version of regulation

7.02 which alone was federally approved at the time of the

1990 Clean Air Act Amendments. And, as already explained,

the Sierra Club has failed to establish that the pertinent

older version of regulation 7.02 did apply to covered highway

or tunnel ventilation systems. Accordingly, regulation 7.38

8As Senator Chafee explained in the floor debate on this
provision:

"The savings provision was intended to
ensure that there is no backsliding on
the implementation of adopted and
currently feasible measures that EPA has
approved as part of a State
implementation plan in the past, or that
EPA has added to State plans on its own
initiative or pursuant to a court order
or settlement."

136 Cong. Rec. S17,237 (daily ed., October 26, 1990).

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does not weaken a federally approved state implementation

plan but rather strengthens it by extending a new regime to

such ventilation systems where previously no federally

approved regime applied at all.

We are left with two further arguments in relation to

regulation 7.38. First, it is claimed that regulation 7.38

is invalid because, according to the Sierra Club, the state

was required by M.G.L. ch. 111, 142A, to obtain the

approval of the Governor of Massachusetts and the Executive

Council but did not do so. This argument was made, it

appears, on the premise that regulation 7.38 was needed by

the government defendants in order to remove a bar otherwise

presented by regulation 7.02. As we have seen, the premise

is mistaken, and invalidating regulation 7.38 would probably

free the ventilation systems from any federally enforceable

regulation.

Nevertheless, the issue of governor-and-council

approval, although irrelevant to the injunction action, is

raised by the Sierra Club's petition to review EPA's approval

of the new regulation. Since the direct review statute has a

time limit on petitions, 42 U.S.C. 7607(b)(1), we cannot

properly defer decision on the validity of regulation 7.38 to

some future point. Indeed, EPA in approving the regulation,

noted that Massachusetts' Secretary of State had attested

that the regulation was properly adopted, and EPA itself

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ruled that the Massachusetts Department of Environmental

Protection had authority "to adopt such regulations without

approval by the Governor and Council." 57 Fed. Reg. at

46312.

It is difficult for anyone but a Massachusetts court to

pronounce with certainty on this issue. But when the

regulation is attested by the state secretary as validly

adopted and its procedural validity is supported in a brief

signed by the state's attorney general, it would take a

rather strong showing to persuade us to hold that the

regulation is invalid on procedural grounds. Assuming (as

seems likely) that its procedural validity is open to review

in this court and that the state secretary's attestation is

necessary but not conclusive,9 we think that EPA correctly

concluded that the regulation was properly adopted without

the approval of governor and council.

The state in submitting regulation 7.38 to the EPA said

that it was adopted pursuant to M.G.L. ch. 111, 142B and

142D, not section 142A. Section 142B establishes a Boston

area pollution control district and gives the Department of

Environmental Protection authority to issue rules and

regulations to prevent pollution in the district. Regulation

9The Clean Air Act requires a state to provide
"necessary assurances" that it has authority under state law
to carry out the implementation plan. 42 U.S.C.
7410(a)(2)(E)(i).

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7.38, which is directed exclusively to the Boston district,

appears to fit comfortably within the ambit of section 142B.

The rulemaking provision of section 142B, unlike section

142A, contains no requirement for approval of rules by the

state's governor or council.

The Sierra Club's contrary argument is based on

confusing language in M.G.L. ch. 111, 142A, a broader

provision governing air pollution in general. In its opening

sentence, this section says that the Department of

Environmental Protection, "in this section and in sections

one hundred and forty-two B to one hundred and forty-two E,

inclusive, hereinafter called the department" may subject to

the approval of the governor and council adopt regulations to

control pollution. Id. The Sierra Club apparently reads

this sentence as extending the governor-and-council approval

requirement of section 142A to rules made under section 142B.

We think the more natural reading of the quoted language

in section 142A is to specify that the term "department,"

when used without further explanation in the cited later

sections, means the Department of Environmental Protection.

Section 142B, for example, does refer only to "the

department." Nor is there anything remarkable about

requiring governor-and-council approval for general

regulations while not doing so for those directed to a single

district; indeed, the Sierra Club reading would make the

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grant of rulemaking power in section 142B redundant.

Accordingly, we reject this challenge to the EPA's approval

and dismiss the petition to review.

The government brief construes the Sierra Club's

argument to embrace, in addition to the claim just rejected,

a further claim that regulation 7.38 cannot be applied

"retroactively" to the central artery and tunnel at issue in

this case. The regulation by its terms is intended to apply

to the project. See 310 C.M.R. 7.38(1). In response the

government argues at length that under Massachusetts law

whatever retroactivity may be involved in applying the new

regime to a previously planned but unbuilt portion of a

project is permissible.

It is not entirely clear that the Sierra Club is making

the argument attributed to it by the government. However

this may be, the EPA did not suggest that its approval of the

regulation depended on how or whether it would be applied to

existing projects; the EPA's notice of approval does not

discuss retroactivity at all. There is no reason to suppose

that EPA's approval is at all dependent on the retroactivity

issue. We have no need, in fact no warrant, to decide an

issue that is not material either to the district court

judgment nor to the validity of the EPA action that is the

subject of the petition to review.

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The judgment of the district court is affirmed. The

petition for review is denied.

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