ELR Citation: ELR 20768
No(s). 73-1366 (1st Cir. Sep 27, 1974)

The First Circuit Court of Appeals upholds EPA's authority to impose transportation controls under the Clean Air Act, but orders the Agency to hold a public hearing within ninety days to consider objections to its calculations regarding the amount of hydrocarbon and carbon monoxide reduction required to attain and maintain primary photochemical oxidant and carbon monoxide standards within the Boston core and at Logan Airport in East Boston. Congress has power under the Commerce Clause to regulate local automobile traffic, and EPA's power to impose transportation control plans under the Clean Air Act does not represent an excessive delegation of legislative powers. The controls themselves constitute neither a taking, an impairment of contract, nor a violation of due process. However, EPA's determination of the need for and amount of emission reductions must be remanded to the agency because it is based on limited and insufficient air monitoring data. The specific controls imposed by the plan include a freeze or reduction of on-and off-street parking, regulation of the construction of new parking facilities, and employee parking reduction. The court rules that if EPA's conclusions as to the required emission reductions can be supported by further data on oxidant and carbon monoxide levels, the controls are not arbitrary or capricious since they exclude residential parking and EPA has stated its intention to formulate an exemption provision for cases of exceptional hardship. The Agency had no statutory duty to make a cost and social benefit analysis for the controls since the material portions of the Clean Air Act do not mention economic or social impact. Nor must EPA prepare an environmental impact statement since Congress in the Energy Supply and Environmental Coordination Act of 1974 exempted EPA actions under the Clean Air Act from the requirements of NEPA. The final transportation control plan was not so different from the original EPA proposal as to deprive petitioners of notice concerning its provisions. The court withholds approval of the plan's gasoline vapor recovery regulation pending the completion of EPA proceedings investigating the technological feasibility of particular vapor recovery systems. The court retains review jurisdiction pending the results of the emission reduction hearing and the vapor recovery study.

Counselfor Petitioners
Joseph L. Cotter
Raymond P. Boulanger
Robert B. Fraser
Goodwin, Procter & Hoar
28 State Street
Boston, MA 02109

Neil L. Lynch, Chief Counsel
Joseph W. Arata
Massachusetts Port Authority
Boston, MA 02109
Robert A. Difilippo
Edward I. Masterman
Cargill, Masterman & Cahill
225 Franklin Street
Boston, MA 02110

Phillip J. Nexon
Alan W. Rottenberg
Barry Brown
Robert C. Davis
Ghoulson & Storrs
Eleventh Floor, 131 State Street
Boston, MA 02109

Counsel for Respondents
Wallace H. Johnson Asst. Attorney General
Carl Strass
Edmund B. Clark
Martin Green
Department of Justice
Washington, DC 20530

Alan G. Kirk II, General Counsel
William F. Pedersen
Environmental Protection Agency
Washington, DC 20460