United States Office of Air Quality EPA-450/3-78-049
Environmental Protection Planning and Standards September 1978
Agency Research Triangle Park NC 27711
Air
Legal Issues of
Emission Density
Zoning
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EPA-450/3-78-049
Legal Issues of Emission
Density Zoning
by
Martin S. Jaffe*, Daniel R.Mandelkert, William A. Thomas},
Deborah B. Wafert, and Felice Taubt
American Society of Planning Officials
Chicago, Illinois
Submitted through
Energy and Environmental Systems Division
Argonne National Laboratory
Argonne, Illinois
EPA Contract No.: EPA-IAG-D7-01157 with Argonne National Laboratory
EPA Project Officer: John Robson
Prepared for
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Air, Noise, and Radiation
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
September 1978
•American Society of Planning Officials, Chicago, Illinois
tWashington University School of Law, St. Louis, Missouri
iAmerican Bar Foundation, Chicago, Illinois
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This report is issued by the Environmental Protection Agency to report technical data of interest to
a limited number of readers. Copies are available free of charge to Federal employees, current
contractors and grantees, and nonprofit organizations - in limited quantities - from the Library
Services Office (MD-35), Research Triangle Park, North Carolina 27711; or, for a fee, from the
National Technical Information Service, 5285 Port Royal Road, Springfield, Virginia 22161.
This report was furnished to the Environmental Protection Agency by the American Society of
Planning Officials, Chicago, IL, through Argonne National Laboratory, Argonne, IL, in fulfillment of
Contract No. EPA-IAG-D7-01157. The contents of this report are reproduced herein as received from
Argonne National Laboratory. The opinions, findings, and conclusions expressed are those of the
authors and not necessarily those of the Environmental Protection Agency. Mention of company or
product names is not to be considered as an endorsement by the Environmental Protection Agency.
Publication No. EPA-450/3-78-049
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FOREWORD
This report examines legal and administrative issues
involving the use of emission density zoning (EDZ) and other
emission quota strategies as air pollution control techniques.
The technical issues of land-use-based emission quota
strategies are discussed in a publication by N.F. Kron, Jr.,
A.S. Cohen, and L.M. Mele of Argonne National Laboratory,
Emission Density Zoning Guidebook: A Technical Guide to
Maintaining Air Quality Standards Through Land-Use-Based
Emission Limits, U.S. EPA Report EPA-450/3-78-048, September
1978.
This legal analysis is intended as a companion volume
to the EDZ Guidebook, and is directed to air pollution con-
trol officials and land-use planners likely to use the tech-
niques described in the Guidebook.
^^^
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ACKNOWLEDGMENTS
This report was prepared under subcontract to Argonne National Labora-
tory's Energy and Environmental Systems Division, with funding provided by
the U.S. Environmental Protection Agency (U.S. EPA). Alan S. Cohen served as
Argonne project officer. The project was carried out by these individuals:
Martin S. Jaffe, Senior Research Associate American Society of
Planning Officials
(ASPO)*
Daniel R. Mandelker, Stamper Professor of Law Washington University
William A. Thomas, Research Attorney American Bar Foundation
Deborah B. Wafer, third-year law student Washington University
Felice Taub, third-year law student Washington University
The research papers that arose from the proj ect were compiled into this
report by ASPO and edited by ASPO and Argonne. The legal arguments and con-
clusions are largely unchanged from the original papers; footnotes are the
responsibility of each section's author(s). The report was authored as follows:
Section Author (s)
1 Introduction Jaffe
2 The Clean Air Act and Emission Quota Strategies - - -
2.1 Federal Policy and The Clean Air Act Jaffe
2.2 Emission Quotas as Land-Use Strategies Mandelker & Wafer
2.3 Emission Quotas as Air Pollution
Dispersion Techniques Thomas & Jaffe
3 The Constitution and Emission Quota Strategies** Mandelker & Taub
4 Emission Quota Strategies and the States Jaffe
5 Conclusions all authors
App. A Provisions of the Clean Air Act and
Their Implementation Mandelker & Wafer
App. B Selection Criteria, Methodology, and State-
by-State Review of Environmental Laws and
Regulations Affecting Emission Density Zoning Jaffe & Thomas
The authors appreciate the assistance and guidance of Alan S. Cohen
and Norman F. Kron, Jr., of Argonne. We also thank John Robson, the U.S. EPA
project officer, for his gracious assistance in reviewing earlier drafts of
this manuscript and his helpful comments.
*ASPO and the American Institute of Planners are merging and will be known
as the American Planning Association after 1978.
**Chapter 3 extends the analysis in Mandelker and Sherry, Emission Quota
Strategies as an Air Pollution Control Technique, 5 Ecology Law Quarterly
401 (1975).
^v
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CONTENTS
1 INTRODUCTION
1.1 Definitions ........... - ............... 2
1.2 An Overview of Legal Issues ................... 5
1.3 Use of the Legal Analysis .................... 7
1.4 Footnotes ............................ 7
2 THE CLEAN AIR ACT AND EMISSION QUOTA STRATEGIES ............ 9
2.1 Federal Policy and the Clean Air Act ............... 9
2.2 Emission Quotas as Land-Use Strategies .............. 9
2.2.1 Air Quality Maintenance Areas and Prevention of
Significant Deterioration Areas .............. 11
2.2.2 Nonattainment Areas .................... 15
2.3 Emission Quotas as Air Pollution Dispersion Techniques ...... 18
2.4 Footnotes ............................ 20
3 THE CONSTITUTION AND EMISSION QUOTA STRATEGIES ............ 24
3.1 Introduction ........................... 24
3.2 Due Process ........................... 25
3.2.1 Confiscation of Property ................. 25
3.2.2 Defending Land-Use Regulations .............. 29
3.2.3 Summary .......................... 44
3.3 Equal Protection ......................... 45
3.4 Footnotes ............................ 49
4 EMISSION QUOTA STRATEGIES AND THE STATES ............... 62
4.1 The Role of the States ...................... 62
4.2 State Implementation of Emission Quotas ............. 65
4.2.1 Emission Quota Strategies as State Air Pollution Controls. 66
4.2.2 Emission Quota Strategies as State Land-Use Controls ... 72
4.2.3 State Coordination of Emission Quota Strategies ...... 79
4.3 Substate Implementation of Emission Quota Strategies ....... 83
4.3.1 Home Rule and Emission Quota Strategies .......... 83
4.3.2 State Enabling Legislation and Emission Quota Strategies . 84
4.4 Footnotes ............................ 88
5 CONCLUSIONS .............................. 92
5.1 The Clean Air Act and Emission Quota Strategies ......... 92
5.2 Constitutional Issues of Emission Quota Strategies ........ 93
5.3 State Implementation of Emission Quota Strategies ........ 95
5.4 Implications for Model State Legislation Authorizing Emission
Quotas ............................. 96
APPENDIX A: PROVISIONS OF THE CLEAN AIR ACT AND THEIR IMPLEMENTATION . . 99
Footnotes ......................... 107
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CONTENTS (Cont'd)
APPENDIX B: SELECTION CRITERIA, METHODOLOGY, AND STATE-BY-STATE REVIEW
OF ENVIRONMENTAL LAWS AND REGULATIONS AFFECTING EMISSION
DENSITY ZONING 114
Selection Criteria 114
Methodology 116
State Summaries 117
Footnotes 131
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1 INTRODUCTION
The federal Clean Air Act is the prevailing air pollution control law
in the United States; its provisions are enforced by the U.S. Environmental
Protection Agency (EPA). As amended through 1977, this legislation requires
states to submit to the EPA implementation plans that describe in detail how
they will meet and maintain air quality goals. The flexibility allowed the
states has led to some innovative suggestions for the best ways to control
air pollution.
One strategy used by many states is to set emission limits for individ-
ual stationary sources of pollution. Under this approach, a state air pollu-
tion control agency lists possible stationary sources of a particular air
pollutant and establishes an emission limit that may be based on unit opera-
tions (such as heat input or process weight) or establishes an absolute limit,
or quota, on emissions for each listed source. Once a particular emission
limit is reached, the manufacturer must modify production techniques or in-
stall pollution abatement equipment in order to satisfy the state regulations.
A per-source emission limit strategy fails to account for incremental effects
of several sources (each emitting a legal quantity of pollutants) acting in
unison to raise pollution concentrations above a healthy level.
Another emission control strategy that states might use is to limit
total emissions from areas of land, rather than from specific sources. An
air pollution control agency could establish limits for a land area, based on
the types of sources within the area, the anticipated concentrations of the
pollutants that the sources would emit, and the relative locations of the
pollution sources. Such strategies have been collectively known as "land-use-
based emission quota strategies." By limiting the emissions generated from
areas of land within a community, an air pollution control agency would regu-
late emissions from all sources within the designated land area.
When considering land-use-based emission quota strategies for an entire
community, an agency can make decisions regarding the land area used as the
basis for administration. This administrative decision creates two types of
land-use-based emission quota strategies. The first type would administer
emission limits for a number of units of land, perhaps as small as hectares or
even individual parcels of land. This decision results in a unit-area
approach to emission limits known generally as emission density zoning (EDZ).
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The second type would administer limits for land areas of a greater size than
an individual parcel, and could be called area-wide emission quota strategies.
Area-wide emission quota strategies include techniques such as floating zone
emission quotas (FZEQ), jurisdictional emission quotas (JEQ), and district
emission quotas (DEQ).
The primary purpose of this report is to identify and discuss legal
issues pertaining to emission density zoning, the per-parcel land-use-based
emission quota strategy. Since many of the legal issues also pertain to the
other (area-wide) strategies, the discussion in many instances is general.
In describing legal issues that can arise from these land-use-based emission
strategies, this report uses the phrase "emission quota strategies" to mean
only land-use-based strategies or techniques. While other techniques may
also be used as emission quota strategies, these are not examined here.
1.1 DEFINITIONS
Because the names of various strategies, and of the administrative
techniques used to implement them, carry specific technical meanings, precise
definitions are needed for some of the terms used in this report. Various
authors of reports analyzing emission density zoning and area-wide emission
quota strategies have defined these terms differently. The terminology and
definitions used here are identical to those found in the companion volume to
this report, Emission Density Zoning Guidebook: A Technical Guide to Main-
taining Air Quality Standards through Land-Use-Based Emission Limits, by N. F,
Kron, Jr., A. S. Cohen, and L. M. Mele of Argonne National Laboratory, U.S.
EPA Report EPA-450/3-78-048 (Sept. 1978).
The Emission Density Zoning (EDZ) Approach
This phrase, "emission density zoning," has been used to
cover a widely varying group of different land-use-based air
quality management strategies. [Some authors, for example, use]
the term to encompass both emission allocation planning and
district emission quotas. For our purposes here, emission
density zoning (EDZ) will be defined as an air quality mainte-
nance strategy which requires that emissions of a pollutant be
limited to prescribed levels for a selected unit area. Thus,
EDZ might be more properly described as a unit area emission
quota.
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The pollutant limit would be developed in terms of an
amount [of pollutant] per unit area per time period specific
to a particular land use category. For example, an EDZ regu-
lation might specify that heavy industrial land uses seeking
to construct in a municipality must emit no more th?.n two tons
of particulates per acre of lot size per year. Hence, a 100
acre establishment classified as heavy industry would have to
certify that it would emit less than 200 tons of particulates
yearly before being allowed to construct.
Similarly, as an example of how this approach is area-specific and not
necessarily source-specific, consider an area zoned for heavy industry with
an emission limit of two grams of particulates per second per hectare. A
factory on a 100-hectare site could emit 200 grams of particulates per second,
while the same type of factory on a 50-hectare site could emit only 100 grams
of particulates per second.
A specific emission limit for a particular pollutant in a specified
area could be based on the outcome of the pollutant dispersion modeling and
linear programming analysis described in the companion EDZ Guidebook. The
emission limits would of course be different for different types of pollut-
ants. They might also vary between different regions within the same munici-
pality, depending on meteorological conditions, current air quality, and
development patterns.
It also must be remembered that under an EDZ strategy, each hectare of
land (and therefore each parcel) within an industrial district can automati-
cally be developed up to a point determined by the emission limit. Every
land owner is therefore allocated a certain prescribed emission limit (depend-
ing on the land area), and no owner is automatically foreclosed from develop-
ing as a result of the use of an EDZ strategy, provided that the use would
result in less emissions than the emission limit of the parcel. This may not
be the case with some of the area-wide emission quota strategies, defined
below, which are also examined in this report.2
The Jurisdictional Emission Quotas (JEQ) Approach
The most broadly conceived of the emission limitation
techniques centers on placing lids on the amount of pollut-
ants emitted within defined political boundaries, including
municipalities, counties and states....California has been
the most advanced in its thinking about [the JEQ approach],
where a ceiling would be established on the total amount of
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emissions in an air basin and this total allocated to sub-
areas within the basin. Extrapolating from the California
experience, it becomes apparent that [JEQ] is a flexible tool
which allows local political jurisdictions a great deal of
latitude in dealing with air quality problems.3
The District Emission Quotas (DEQ) Approach
A step down from [JEQ strategies] is a strategy which
limits the amount of pollutants to be emitted during some
time period from a planning district within a jurisdiction.
Thus, the amount of emissions generated by an industrial zone
of 100 acres might be limited to no more than 200 tons of par-
ticulates per year. Once the emission limitations had been
established for a particular district, new polluting sources
would only be allowed if the quota had not been exceeded.
Different kinds of districts, e.g., residential, com-
mercial, and industrial, would be permitted varying amounts of
emissions. Through this strategy, "hot spots" could be avoided
and air quality possibly maintained.1*
The Floating Zone Emission Quotas (FZEQ) Approach
As the name implies, the "floating zone emission quota"
(FZEQ) concept refers to limitations on pollutants generated
within an area of specified size which can be drawn about any
specific location within the metropolitan area. For example,
air quality maintenance objectives might include a limiting of
emissions to 2,000 tons of particulates [per year] within any
one square mile of the air quality maintenance area. The use
of floating zone emission quotas is best seen when evaluating
the impact of a new industrial facility. Given this 2,000 ton
per year limitation on particulates within a square mile, then
a circle, containing an area of a square mile, could be placed
about the proposed location of the new industry, the centroid
of the circle. Thus, if the new industry is estimated to emit
200 tons of particulates per year, then the one square mile sur-
rounding the industry must have existing total emissions of no
more than 1,800 tons of particulates [per year]. The FZEQ
concept was developed for use in Jefferson County, Kentucky.
As stated above, in FZEQ, a new source wishing to locate
in an area provides the FZEQ implementing authority with a
statement of how much pollutant the source will emit. After
determining the emissions from all other sources located in the
area where the source wants to locate, the FZEQ authority permits
or denies construction based on whether the total emissions near
the proposed site are above or below some objectively-set limit
for the area. The challenges in FZEQ are (1) determining the
size of the area around the source that should be considered in
the analysis (e.g., the radius of the circle placed around the
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new source), (2) determining the quantity of emissions to be
allowed in the area, and (3) keeping good records so that the
implementing authority knows the emission quota remaining in
each area of the region.5
1.2 AN OVERVIEW OF LEGAL ISSUES
This study prospectively analyzes some of the legal questions raised
by EDZ, especially those related to the Clean Air Act, the U.S. Constitution,
and state laws. It focuses on legal issues at the state level for two rea-
sons: (1) inherent power to regulate environmental quality resides with the
states in our federalist system of government, and (2) federal efforts to
control air pollution are programmed under the Clean Air Act to activities by
the states. The allocation of authority among federal, state, and local
governments is well established and is not likely to change in the foreseeable
future.
Examination of the Clean Air Act and its amendments indicates that EDZ
probably would be upheld as a valid technique under this federal legislation.
From a legal standpoint, federal constitutional issues override state
issues, and they undoubtedly will be encountered in implementing EDZ. Two
provisions are of special concern, and each must be considered in relation to
the specific EDZ provisions. The 14th Amendment to the Constitution provides
that states shall not deprive any person of property without due process of
law. Judicial interpretations of this due process clause have evolved to
mean that states can exercise the regulatory provisions of the police power
only to the extent that they further a legitimate state purpose, are not
implemented in a capricious or arbitrary manner, and do not so restrict use
of property that no reasonable use for it remains. A regulation that does
not satisfy these three criteria is invalid. The issue in the EDZ context is
whether limiting emissions on a per-parcel (area-wide) basis would impose such
an onerous burden that it denies individuals due process of law. No formula
exists to determine what constitutes a reasonable use of property, and this
determination must of necessity be made on a case-by-case basis. The trend
in judicial decisions is toward upholding increasingly restrictive limitations
on private use of property where the countervailing public benefits are clear.
An objection to EDZ on due process grounds should not prove to be an insur-
mountable barrier to its implementation.
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The 14th Amendment also provides that states shall not deny any person
the equal protection of the laws. Simply stated, this means that classes of
persons cannot be discriminated against if the classification is irrelevant
to achieving a legitimate state goal. State legislatures are presumed to
have acted within the constitutional limits even though some inequality might
result from their action as long as a reasonable justification for it exists,.
For our purposes here, this issue would arise when an emission quota had been
filled on a "first-come, first-served" basis, thus precluding further indus-
trial development within the affected area. Recent "limits to growth" cases
suggest that the necessary flexibility can be incorporated into these inno-
vative air pollution control programs to preclude successful attacks under
the equal protection clause. Many nonpolluting land uses would still be
allowed.
Either a state or local government can implement an EDZ approach,
but neither can proceed if the legal doctrines within the state prohibit it.
Thus, it is necessary to consider issues at the state level. The authority
of the state to enact various regulations under its police power can be dele-
gated to local governments by specific air pollution control legislation or
by general enabling legislation that allows local governments to proceed inde-
pendently in resolving local environmental quality problems.
This study examines the statutory and regulatory provisions in six
representative states to determine if they are compatible with the EDZ tech-
nique. These states - Alabama, Colorado, Illinois, Minnesota, New Jersey,
and Pennsylvania - represent the gamut of policies related to environmental
quality in general and to air pollution control in particular. A review of
the diverse approaches adopted by these six states affirms the observation
by Justice Louis Brandeis that:
It is one of the happy incidents of the federal system that a
single courageous State may, if its citizens choose, serve as
a laboratory; and try novel social and economic experiments
without risk to the rest of the country. New State Ice Co, v.
L-iebmann, 285 U.S. 262 at 311 (1934) (dissenting opinion).
Land development and legal controls obviously do not operate in a
vacuum, and persons contemplating the usefulness of EDZ must take into con-
sideration the political realities involved. The traditional tensions between
private property rights and public regulation of land use are not lessening.
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Air pollution control agencies typically must allocate their resources care-
fully and some may be reluctant to propose an untested and politically sensi-
tive technique. Others, however, may find merit in the innovative EDZ method
and thus will act as "laboratories" for the rest of the nation.
1.3 USE OF THE LEGAL ANALYSIS
The legal questions examined in this report provide a framework for
model legislation. The federal government or the individual states may wish
to pass specific legislation to allow the use of EDZ and other emission quota
strategies. An examination of the issues that can arise in the absence of
enabling legislation should prove useful in the development of legislative
proposals encompassing EDZ and other emission quota strategies.
Therefore, this document is directed to federal, state and local legis-
lators, in addition to air pollution control officials and land use planners
who may only consider the technical aspects of EDZ and other emission quota
strategies. Although planners and air pollution control officials might be
most interested in the technical aspects of EDZ, as set forth in the compan-
ion EDZ Guidebook cited earlier, the legal issues that arise offer potentials
and problems that must be addressed.
For example, likely applications of EDZ might be as a control mechanism
for problems involving air quality maintenance, the prevention of significant
deterioration (PSD), and attainment (offset) strategies, as set forth in the
most recent amendments to the Clean Air Act. This legal analysis can help
states decide on the role of EDZ and other emission quota strategies in these
aspects of air pollution control and planning.
1.4 FOOTNOTES
1. Brail, R.K., Land Use Planning Strategies for Air Quality Maintenance,
Proc. Specialty Conf. on Long-Term Maintenance of Clean Air Standards,
Lake Michigan States Sec. of Air Pollution Control Assn., Chicago,
J.J. Roberts, ed., pp. 275-289 (Feb. 1975).
2. The concept of transferable emission rights, or emission rights for sale,
has been discussed in the literature in relation to EDZ. This report does
not consider this option.
3. See note 1, supra.
4. See note 1, supra.
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5. See note 1, supra.
6. Kron, N.F., Jr., A.S. Cohen, and L.M. Mele, Emission Density Zoning Guide-
book: A Technical Guide to Maintaining Air Quality Standards through
Land-Use-Based Emission Limits, U.S. EPA Report EPA-450/3-78-048 (Sept.
1978).
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2 THE CLEAN AIR ACT AND EMISSION QUOTA STRATEGIES
2.1 FEDERAL POLICY AND THE CLEAN AIR ACT
The federal Clean Air Act and its amendments establish a national pro-
gram for air pollution control in 42 U.S.C. §1857 et seq., as amended by 42
U.S.C. §7401 et seq. (1977 Supp.). The Act and its administrative regulations
create both a mandate and a framework for state and local pollution control
strategies. The mandate stems from Congressional findings that air pollution
is a serious problem that can only be dealt with by coordinated efforts among
the states to develop and administer programs consistent with the Act. The
framework for these programs is based upon the concept of air quality planning
by the states, consistent with guidelines contained within the Act and federal
regulations governing the preparation, submission, and review of such plans.
States may have a great deal of latitude in implementing air quality
plans. Implementation may be by conventional means, i.e., regulating the
level of emissions produced by individual sources, or by innovative mechanisms,
including various types of land-use controls. Chapter 2 focuses on the second
means of implementation, and discusses the latitude states and communities
have to consider the use of emission density zoning to regulate air pollution
emissions.
The federal mandate contained with the Act and the provisions and
structure for administering the Act are discussed in Appendix A. This appen-
dix outlines the Act's major provisions and planning criteria that can in-
fluence state decisions to consider EDZ and other emission quota strategies
as viable alternatives for achieving federal air quality objectives.
2.2 EMISSION QUOTAS AS LAND-USE STRATEGIES
As enacted in 1970, the Clean Air Act contained a broad mandate for
including land-use controls in state implementation plans (SIPs).2 This
commitment to a two-pronged pollution control strategy of technological source
controls and land-use controls was somewhat restructured by the 1977 amend-
ments to the Act. Generally, these amendments preclude the U.S. EPA from re-
quiring that land-use controls be included in a SIP, other than those controls
the Act specifies. The states are not prohibited from including land-use
controls in SIPs in addition to those measures expressly authorized by the Act.
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10
A state's authority to adopt air quality standards, limitations, or
controls more stringent than those required is confirmed in §116 of the Act.
This section raises the issue of the status of such "voluntary" restrictions
under the Act. If a state, pursuant to §116, includes more stringent re-
strictions such as land-use controls, and the EPA Administrator approves the
plan, do these controls become part of the state's implementation plan? If
so, are these controls enforceable by the Administrator? Must the Administra-
tor approve the plan even if he or she disagrees with the decision to include
the controls? The answer to each of these questions is "yes."
Despite this change in the statute, land-use regulations remain an
important tool in air pollution control.1* Many observers have claimed that
a successful pollution control effort must include land-use regulation.5
Just as land development and urbanization patterns will either support or de-
tract from the pollution control effort, so pollution control programs will
influence these patterns of land use.6
The remaining portion of this chapter describes how land-use controls
may be used under the Clean Air Act, either expressly or by implication.
Within these limitations, the manner in which emission quotas might be adopted
and administered will be evaluated.
The threshold question to consider is whether the Clean Air Act con-
tains any provisions that would absolutely bar a state from employing EDZ or
other types of emission quota strategies as air pollution control measures.
The answer to this question is that the Act does not prohibit the use of
emission quotas as part of a state's strategy to achieve the National Ambient
Air Quality Standards (MAQSs). It is true, of course, that the EPA is no
longer authorized to require land-use controls as part of a SIP. A SIP must
contain, in addition to "emission limitations, schedules, and timetables for
compliance with such limitations," such "other measures...necessary to insure
attainment...of the t'NAAQS] . . .not limited to transportation controls, air
quality maintenance plans, and preconstruction review of direct sources
of air pollution...."7 The legislative history to the 1977 amendments indi-
cates that those controls listed in the quoted provision are intended to be
the only form of land-use control, authorized by the statute, that the EPA
may require in a SIP.8 Apparently the intention is to exclude zoning
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11
and other forms of land-use controls that affect air quality through the regu-
lation of land-use activities.
It is difficult to know whether emission quotas should or should not
be classified as a land-use control for purposes of determining their accep-
tability under the Clean Air Act. The emission quota is applied to land areas
and has the effect of allowing or disallowing a use of land, but the criteria
used in administering the quota are related to attainment and maintenance of
the NAAQSs. In addition, the quota is applied on a source-by-source basis
and is similar in operation to the preconstruction review and permit proce-
dures that, for the first time, have been expressly authorized by the 1977
amendments to the Clean Air Act. These procedures provide direct authority
for the inclusion of an emission quota in a SIP.
Another section in the Clean Air Act appears to authorize voluntary
state adoption of an emission quota as part of its SIP. That section9 autho-
rizes the states to adopt any air pollution control measures provided they
are not less stringent than standards or limitations imposed under the Act.
An emission quota intended to achieve compliance with the NAAQSs would seem
to fall within this provision.
Even though emission quotas may be included in a SIP, the more diffi-
cult question is whether, if this method is used, it can be implemented to
conform to the Act's very detailed and specific requirements for each of the
three types of air quality areas distinguished by the Act. These areas are
the nonattainment areas, the air quality maintenance areas (AQMAs), and pre-
vention of significant deterioration (PSD) areas. The nonattainment areas
appear to present the most difficulty for emission quotas.
2.2.1 Air Quality Maintenance Areas (AQMAs) and Prevention of Significant
Deterioration (PSD) Areas
The measures required for maintenance of air quality, unlike the de-
tailed provisions for the nonattainment and PSD areas, have been largely left
to the states. The 1977 amendments to the Clean Air Act explicitly authorize
"such measures as may be necessary to insure...maintenance...[of the
NAAQSs]." ° The EPA had previously issued regulations requiring plans for air
quality maintenance areas, and these regulations include procedures for air
quality analysis and air quality maintenance plans.
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12
The EPA has stated that it does not intend, through these regulations,
1 9
to impose federal land-use controls. It is not clear whether emission
quotas should be considered land-use controls. But, assuming that emission
quotas are classified as land-use controls, the inference is that EPA will
not require emission quotas as necessary elements in air quality maintenance
plans. However, states appear free to include emission quotas under the sec-
tion of the statute authorizing supplementary state controls.
EPA regulations require the SIP to identify those areas of the state
"which, due to current air quality and/or projected growth rate, may have the
potential for exceeding any [NAAQS]" within a ten-year period following sub-
mittal of the maintenance plan. For each AQMA, the state must perform an
air quality analysis and, if necessary, submit an air quality maintenance
plan (AQMP) .1 **
The procedures for the AQMA analysis require that emissions be pro-
jected for each pollutant for a period of 20 years, unless modified by the
EPA Administrator to a ten-year period.15 The projected emissions are then
to be allocated to sub-county areas. s These projections must also be made
for air quality.
Based on the submitted air quality and emission projections, the EPA
1 A
Administrator will determine which areas require an AQMA plan. It is then
up to the state to develop a control strategy to maintain air quality. The
state must submit an air quality maintenance plan that describes, each control
measure, but the regulations do not require any particular measures.19 How-
ever, the measures must be legally enforceable and include certain consulta-
tion procedures.20 Guidelines published by the EPA in 1974 had suggested
various emission quota controls as a means of implementing air quality main-
2 1
tenance plans.
An emission quota strategy can be particularly useful in a maintenance
program. Once the required analysis has been accomplished, and the future
pattern of emissions and air quality projected, an emission quota can be im-
posed that will maintain pollution levels at or below those specified by the
appropriate air quality standard.
The land-use implications of a PSD strategy attracted considerable
attention when Congress enacted the 1977 Clean Air Act amendments. 2
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13
Congress explicitly specified the prevention of significant deterioration as
n 3
a requirement to be included in state implementation plans, and there is
explicit authority in the statute requiring PSD controls in the state SIP
whenever there are areas in the state that are subject to the PSD strategy.
As noted earlier, the PSD requirements in the statute are implemented
by automatically assigning all areas in each state to one of three classes.
The state may reclassify these areas at its option. For each area the Act
sets maximum allowable increases in particulate matter and sulfur dioxide
levels relative to the baseline pollutant concentrations in the PSD area.2"1
r\ c
In no event may the NAAQSs be violated in any of these areas. Since addi-
tional pollution allowable in PSD areas is stated in terms of ambient air
quality, an emission quota implemented in a PSD area must ensure that the
allowable incremental changes in air quality will not be violated. The
methodology presented in the EDZ Guidebook develops emission quotas based on
acceptable air quality.
The use of emission quotas received attention from the EPA in 1973
when it proposed a PSD requirement. At that time an emission quota variant
was proposed as one of four alternative ways to help define significant
deterioration,2b but was rejected because of technical and other difficulties.
In view of this history, it might be argued that the EPA's adoption of the air
quality increment approach to PSD, as later codified by Congress, was an im-
plied rejection of the use of an emission quota to implement the PSD require-
ment. There is no legislative history shedding any light on this problem,
however, and the express authority reserved to the states to adopt "any stan-
dard or limitation respecting emissions of air pollution"27 that is at least
as stringent as a standard or limitation contained in an SIP should provide
sufficient authority to adopt an emission quota as a means of implementing
the PSD requirement.
Two components of the PSD requirement must be considered when evalu-
ating the use of an emission quota other than EDZ in this context — the re-
quirements applicable to the area classification system and available pollu-
tion increments, and those applicable to the preconstruction review of new
sources within PSD areas. The first type of requirement was described ear-
lier. These pollution increments differ, and the greatest increment is
allowed for the Class III PSD areas.
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14
An emission quota for any PSD area may be derived from the allowable
pollution increment for that area. This increment, which is an air quality
measure of the concentration of a given pollutant allowable in the ambient
air, must be requantified as a loading requirement under the emission quota.
In no event may the emission quota be set so that the NAAQSs are violated.
Once the allowable pollution increment is converted into an emission quota,
the PSD requirement may be implemented directly through application of the
quota.
Problems may arise in the use of the emission quota to implement the
PSD requirement when a state reclassifies a PSD area. At the time of re-
classification, the quota may have to be reexamined and possibly changed. It
is difficult to know in advance what changes may need to be made in the emis-
sion quota for several reasons. First, baseline concentrations of pollutants
will not be the same for each area with the same classification. Reclassifi-
cation may result in appreciable or negligible changes in the quota, depen-
ding upon how much of the allowable increment for the new classification
remains available. Second, continual reductions in emissions through the
application of improved technology could increase the available increment.
Third, it is impossible to know in advance just how an area will be re-
classified because reclassification need not be based on current air quality
levels or land-use patterns. The classification may reflect the desired
9 o
degree of change from current levels and patterns.
Like the nonattainment area plan provisions, PSD also requires the pre-
construction review of major new sources within PSD areas. A seemingly attrac-
tive option is to coordinate an emission quota strategy with the preconstruc-
tion review process. However, if this coordination occurs, care must be taken
to ensure that either the quota applies to only those sources requiring pre-
construction review under PSD requirements or that all sources subject to the
quota are included in the preconstruction review process. If this precaution
is not taken, then after the quota has been exhausted (a situation that cannot
occur with EDZ), no new sources subject to preconstruction review will be
r\ O
allowed to locate in the PSD area. However, sources not subject to pre-
construction review, but subject to the quota, may be constructed because a
mechanism to enforce the quota may not be established for these sources.
Alternatively, sources not subject to preconstruction review may use up all
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15
of the quota, to the detriment of those requiring the review. These situa-
tions may raise issues of equal protection and due process. Therefore, if
the preconstruction review process is coordinated with an emission quota
strategy, care must be taken to avoid these potential legal problems.
Other requirements applicable to the preconstruction review of new
sources of pollution in PSD areas are also supplementary to the use of the
emission quota and must be considered when the emission quota is applied.
These include a requirement that the proposed source be subject to the best
available control technology ° and a requirement that "any air quality im-
pacts projected for the area as a result of growth associated" with the new
source be analyzed.3 While the air quality analysis must be provided, it
does not appear to impose any substantive control on the decision to allow a
new stationary source, except to the extent that it would influence the deter-
mination of best available control technology.
This discussion indicates that emission quotas may be useful in the
administration of the statutory PSD requirement. If the emission quotas must
be revised when PSD areas are reclassified, the expense and time required to
do so may also limit the effectiveness of emission quotas as PSD control
measures.
2.2.2 Nonattainment Areas
There are two components to the nonattainment area provisions of the
Act: the plan itself and the preconstruction review and permit procedure re-
quired for new major stationary sources of pollution seeking to locate in
nonattainment areas.32 The NAAQSs must generally be attained in these areas
by 1982, but the Act also provides that the plan in the interim must require
"reasonable further progress" toward this goal.33 This phrase is in turn
defined as "annual incremental reductions" in air pollution sufficient to
attain the NAAQSs by the statutory date.31*
In addition to the "reasonable further progress" requirement of the
nonattainment plan, the Clean Air Act also requires a preconstruction review
procedure and permit for any new "major" stationary source of pollution if
its emissions will cause, or contribute to, concentrations of a pollutant for
which the NAAQS is violated in the nonattainment area. This permit may be
issued subject to compliance with one of two alternative standards. Under the
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16
first, the emission offset standard, the permit may be issued if emissions
from the new major source, existing sources, and stationary sources that are
not major sources will be sufficiently less than emissions prior to approval
of the new source so that reasonable further progress toward attainment of the
o c
NAAQS will be achieved. This provision will generally require a reduction
in emissions from existing stationary sources so that additional pollution
from a new major source can be allowed. Since both the emission offset stan-
dard and the emission quota assume compliance with the NAAQS, it should be
possible to use the emission quota to determine whether compliance with the
emission offset requirement can be achieved. Note, however, that in applying
the emission offset policy, pollution from new sources that are not major
sources also must be considered. To make the emission quota functional as a
method of determining compliance with the emission offset standard, it will
thus be necessary to include existing and projected emissions from all sta-
tionary sources in calculating the emission quota. If the EDZ Guidebook has
been used, these projections will have been made.
Permits may also be approved under an alternative standard for new
major stationary sources emitting pollutants for which the NAAQSs are violated.
Under this standard, the permit may be issued if emissions from the new major
source will not exceed the emissions allowance provided in the nonattainment
plan.37 A provision in the Act applying to the nonattainment plan requires
in turn that the emissions to be allowed from new major stationary sources
f\ n
of pollution must be identified and quantified. It is this identified
incremental allowance of emissions that must not be exceeded when a permit is
approved under this second standard. While the Act does not expressly so
provide, it seems clear that the growth increment to be identified in the
plan for emissions must not permit an increase in pollution levels that will
prevent attainment of the NAAQSs by the statutory date.
It is possible to use the emission quota to implement this permit
standard if the growth increment for emissions identified in the nonattain-
ment plan is considered and taken into account when the emission quota is
set. If the EDZ Guidebook is used, the emission quota will take projected
growth into account. This growth will have to be calculated for the attain-
ment plan period so that the allowable emission increment can be made consis-
tent with attainment of the NAAQSs by the statutory date. The emission quota
may be used to identify the allowable emission increment if the pollutant
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17
load measure used to set the emission quota may also be used to specify the
allowable emission increment in the nonattainment plan. No provision appears
to suggest that this emission measure may not be used.
While the emission quota may thus be adapted to determine compliance
with either of the standards under which permits for new sources may be issued
in nonattainment areas, there are three other requirements for new source per-
mits in nonattainment areas thai; cannot be implemented by using an emission
quota. These requirements could be regarded as supplementary to the emission
quota. The first calls for a cost-benefit review of new major stationary
sources of pollution in areas which do not meet the NAAQS for photochemical
oxidants or carbon monoxide. In these areas an air quality analysis must be
performed for each new major stationary source, and the source may not be
0 Q
approved unless its benefits outweigh its environmental and social cost.
This cost-benefit analysis does not apply to emission quota strategies con-
sidered in this document because they deal only with sulfur dioxide and partic-
ulate matter.
The second requirement calls for emissions from new major stationary
sources to be at the lowest achievable rate, which appears to call for the
use of pollution control technology possibly more stringent than that required
by a new source performance standard. This requirement does not affect an
emission quota since the quota is an additional constraint on air emissions.
If the lowest achievable emission rate requirement means that emissions from
a new source will be reduced to a level that would not have been achieved under
a new source performance standard, the emissions from that source will also
be correspondingly reduced and an extra margin for growth provided under the
emission quota. The determination of the lowest achievable emission rate
will have to be made independently of the application of the emission quota.
The third requirement for the issuance of a new stationary source per-
mit is that the source owner or operator applying for a permit must show that
other sources he or she owns or operates are in compliance with any applicable
emission limitations or standards imposed under the Clean Air Act.1*2 Com-
pliance with other statutory emission limitations or standards might be shown
through compliance with an emission quota if one is applicable, but this
compliance requirement must also be viewed as supplementary1* to any
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demonstration by the proposed source's operator that he or she has complied
with the applicable emission quota.
This review of the Clean Air Act provisions for nonattainment areas
indicates that the emission quota must be carefully designed and administered
to accommodate a coordinated approach to satisfy the requirements contained
in the Act for nonattainment areas. Problems may especially arise because the
preconstruction review process required by the Act is only required for major
sources, even though emissions from nonmajor stationary sources may have to
be considered when a preconstruction permit is approved. The quota will have
to account for emissions from all stationary sources, even if approval under
the quota is limited to major sources.
2.3 EMISSION QUOTAS AS AIR POLLUTION DISPERSION TECHNIQUES
The previous discussion of emission quota strategies focused on emis-
sion quotas as air pollution abatement strategies. However, these same
techniques may also be studied as possible pollution dispersion strategies.
The air pollution control techniques collectively known as emission
quota regulations share a common attribute: all would reduce the concentra-
tions of air pollutants by horizontally dispersing the stationary sources.
That is, these land-use techniques are not designed to reduce the total amount
of pollution but to distribute it in such a manner that the local ambient con-
centrations remain relatively low.
Two other strategies with similar purpose have been considered in the
past, but are no longer applicable: construction of tall smokestacks that
disperse pollutants over a large geographic area, and installation of supple-
mental control systems that monitor ambient air quality and temporarily de-
crease or stop the emissions during periods of high ambient concentrations.
Historically, in issuing guidelines for implementation of the Clean
Air Act,41* the EPA Administrator initially approved the use of tall stacks
and supplemental controls in state implementation plans.1* This determina-
tion was based on the finding that the operative provisions of the Act allowed
considerable flexibility in determining which alternatives would be applicable
to stationary sources. Section 110(a)(2)(B) of the 1970 amendments to the
Clean Air Act provides that the Administrator shall approve a state implemen-
tation plan if, among other requirements,
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19
[It] includes emission limitations, schedules, and timetables
for compliance with such limitations, and such other measures
as may be necessary to insure attainment and maintenance of
such primary or secondary standard, including, but not limited
to, land-use and transportation controls.
Issue has been taken with this determination for several reasons, but
primarily because these techniques "run directly counter to the thrust of the
1970 amendments.""*7 The Clean Air Act amendments of 1970 provide for emis-
sion limitations that are to be enforced without regard to pollutant concen-
trations in the ambient air.
The U.S. Court of Appeals for the Fifth Circuit held in 1974 that the
Administrator violated the 1970 amendments by approving the Georgia SIP, be-
cause, among other reasons, it relied upon dispersion of pollutants rather
than emission reduction and thus was not in keeping with the "nondegradation"
policy of the Act.48
The use of dispersion techniques is at odds with the nondegrada-
tion policy. Dispersion enhancement techniques operate by keep-
ing pollutants out of areas of high pollutant concentration, and
dispersing them to lower concentration areas; their objective is
to reduce concentrations in high-concentration areas. Inevitably,
however, the pollutants emitted into the atmosphere must end up
somewhere; and the atmosphere at their destination, wherever that
may be, will be degraded, in violation of the congressional policy.
The only techniques fully capable of guaranteeing nondegradation
[l Q
are emission limitation techniques.
The tall stack issue was not involved on appeal to the Supreme Court,
but language in the Court's opinion makes it clear that dispersion techniques
may not be substituted for emission limitations, although they may be used in
conjunction with them.50
Subsequently, the Sixth Circuit51 Court ruled that intermittent (supple-
mental) controls alone did not satisfy the requirements of the Act, and the
Ninth Circuit Court agreed:
Intermittent control systems (such as those restricting pro-
duction, or utilizing less polluting fuels, during periods
of adverse weather) do limit the amount of pollutant emitted
while such controls are being applied. However, the relia-
bility and enforceability of such controls is questionable;
they may not be implemented when they are in fact needed.
Moreover, there is no assurance that temporary reductions and
emissions resulting from such controls will not be balanced,
or even exceeded, by an increase in the amount of pollutant
emitted when weather conditions improve and production is
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20
increased to make up for prior losses, or more polluting fuels
are again used. Thus, intermittent controls, like tall stacks,
may only disperse the pollutant rather than reduce it. Tall
smokestacks disperse a pollutant through greater quantities of
air; intermittent control systems disperse pollutant peaks
through longer periods of time. Neither assures a reduction in
the quantity of the pollutant eventually emitted.52
Proponents of "emission density quota" regulations cannot be encouraged
by judicial rejection of other dispersion techniques. The similarities in
purpose and effect suggest that the proposed allocation method is open to
attack on statutory as well as constitutional grounds. This is not to say,
however, that the method cannot be used, but that its use alone probably
would fail to comply with national policy as declared by the Congress and
interpreted by the courts.
2.4 FOOTNOTES
1. The health-related objectives of the Clean Air Act 42 U.S.C. §7401 et seq.
(1977 Supp.) and the statutory requirements provided a valid legal basis
for the imposition of land use controls. See D. Mandelker, Environmental
and Land Controls Legislation 17 (1976). In discussing the 1970 version
of the Act, one commentator distinguished the goals of attainment and
maintenance of the NAAQSs(which were "necessary to protect the public
health and welfare") from the PSD policy (originally implied, but not
fully articulated in the Act). See Note, Federal Land Use Controls for
Clean Air, 3 Env. Aff. 507 (1974). Congress, in response to Sierra Club
v. Ruckelshaus, 344 F. Supp. 253 (D.D.C. 1972), aff'd per curiam, 4 E.R.C.
1815 (B.C. Cir. 1972), aff'd by an equally divided court, sub nom., Fri
v. Sierra Club, 412 U.S. 541 (1973), addressed the matter in the 1977
Amendments. See Title I, Part C, §§160 et seq.
2. §110(a)(2)(B) 42 U.S.C. §7410 originally provided that the SIP must in-
clude "emission limitations.... and such other measures as may be
necessary to insure attainment and maintenance of [the NAAQSs], including,
but not limited to, land-use and transportation controls...." Congress
failed to specify or suggest what types of land-use controls would be
appropriate. But see South Terminal Corp. v. E.P.A., 504 F.2d 646 (1st
Cir. 1974) (transportation controls authorized as a land-use control).
3. Union Electric Co. v. E.P.A., 427 U.S. 246 (1976). Bleicher, Economic and
Technical Feasibility in Clean Air Act Enforcement Against Stationary
Sources, 89 Harv. L. Rev. 316, 320-322 (1975).
4. Studies of air quality control long have recognized that land-use planning
and land-use controls are necessary to achieve and maintain clean air.
Mandelker & Rothschild, The Role of Land-Use Controls in Combatting Air
Pollution Under the Clean Air Act of 1970, 3 Ecology L.Q. 235 (1973).
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5. Mandelker & Rothschild, supra note 4 at 235, citing R. Thuillier, A
Regional Air Pollution Modeling System for Practical Application of
Land-Use Planning Studies 1 (May 17, 1973).
6. Id. See also 4 Ecology L.Q. 781 (1975).
7. §110(a)(2)(B). 42 U.S.C. §7410.
8. H. Rep. No. 564, 95th Cong., 1st Sess. 127 (1977).
9. §116. 42 U.S.C. §7416.
10. §110(a)(2)(B). 42 U.S.C. §7410.
11. The EPA Administrator has promulgated regulations for air quality main-
tenance planning areas identified pursuant to 40 C.F.R. 51.12 (1977).
These regulations "leave entirely in the hands of the states the choice
of measures that are needed to maintain the [NAAQS]." 40 Fed. Reg. 49048
(1975).
12. See 40 Fed. Reg. 18382 (1976).
13. 40 C.F.R. §51.12(e).
14. 40 C.F.R. §51.12(g).
15. 40 C.F.R. §§51.42, 51.44. The regulations refer to techniques to be
followed in making the projections but allow alternatives as approved
by the Administrator.
16. 40 C.F.R. §51.45(a).
17. 40 C.F.R. §51.46(a).
18. 40 C.F.R. §51.52(a)(1).
19. 40 C.F.R. §51.54.
20. 40 C.F.R. §§51.55, 51.58(b).
21. U.S. Environmental Protection Agency, Guidelines for Air Quality Main-
tenance Planning and Analysis, Vol. 3: Control Strategies Cli. II (1974).
22. E.g., H.R. Rep. No. 294, 95th Cong., 1st Sess. (1977); S. Rep. No. 252,
95th Cong., 1st Sess. (1977); and H.R. Rep. No. 564, 95th Cong., 1st
Sess. (1977). See also 38 Fed. Reg. 18986, 18988, 18993 (1973); 39 Fed.
Reg. 31000, 31001 (1974).
23. §110(a)(2)(B) contained the statutory authority for the inclusion of land
use controls in a SIP for attainment and maintenance of the NAAQSs. This
language, upon close analysis, does not appear to refer to controls to
prevent significant deterioration of areas cleaner than required by the
NAAQSs. The Senate version of this provision would have authorized land-
use controls specifically to maintain or "prevent further deterioration
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22
from, any primary [NAAQS]." S. Rep. supra note 22 at 144. This language,
again read closely, does not appear to authorize land-use controls to
prevent significant deterioration of air better than the NAAQSs require.
Yet, the Conference Report indicates that the Senate concurred in the
House provision with the understanding that land-use controls were per-
mitted to prevent significant deterioration of air quality. H.R. Rep.
No. 564, supra note 22.
24. §§162, 163. 42 U.S.C. §7472.
25. §163(b)(4). 42 U.S.C. §7473.
26. 38 Fed. Reg. 18986 (1973).
27. §116. 42 U.S.C. §7416.
28. 39 Fed. Reg. 42510, 42512 (1974).
29. §165(a)(3)(A), 42 U.S.C. §7475.
30. §165(a)(4). 42 U.S.C. §7475.
31. §165(a)(6). 42 U.S.C. §7475.
32. The preconstruction review and permit procedure must be included in the
SIP, §110(a)(2)(D).
33. §172(b)(3). 42 U.S.C. §7502.
34. §171(1). 42 U.S.C. §7501.
35. §172. 42 U.S.C. §7502; §110(a)(2)(I). 42 U.S.C. §7410.
36. §173(1)(A). 42 U.S.C. §7503,
37. §173(1)(B). 42 U.S.C. §7503.
38. §172(b)(5). 42 U.S.C. §7502.
39, §372(b)(ll). 42 U.S.C. §7502.
40. §173(2). 42 U.S.C. §7503.
41. fi 171(3). 42 U.S.C. §7501.
42. §173(3). 42 U.S.C. §7503.
43. §126 42 U.S.C. §7426 contains a supplemental measure, not incorporated
in the permit requirements. Even ^'hen a permit has been granted to a
source subject to the PSD requirements, it is a violation for that source
to be constructed or to operate if such source will adversely affect the
attainment, maintenance or PSD measures of another state.
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44. 42 U.S.C. §§1857 et seq. (1970 as amended in 1977).
45. Changes in these regulations over time can be followed in 40 C.F.R.
§§50, 51, and 60 (revised annually).
46. The Clean Air Act Amendments of 1977 delete the reference to land-use
controls in 42 U.S.C. §7410(a)(2)(B).
47. Jorling, The Federal Law of Air Pollution Control., in Federal Environ-
mental Law 1058 at 1093 (E. Dolgin & T. Cuilbert, eds., 1974). The other
arguments are outlined at 1093-1094. For an extended analysis, see
Ayres, Enforcement of Air Pollution Controls on Stationary Sources under
the Clean Air Amendments of 1970, 3 Ecol. L.Q. 441 at 449-460 (1975).
48. Nondegradation was not specifically addressed in the Act, but the evi-
dence is clear that this is a congressional goal. See Sierra Club v.
Ruckelshaus, 344 Fed. Supp. 253 (1972), aff'd sub nom. Fri v. Sierra
Club, 412 U.S. 541 (1973).
49. Natural Resources Defense Council v. Environmental Protection Agency,
489 F.2d 390 at 408-409 (1974), rev 'd in part on other grounds sub nom.
Train v. Natural Resources Defense Council, 421 U.S. 60 (1975).
50. "[S]o long as the ultimate effect of a State's choice of emission limita-
tions is compliance with the national standards for ambient air, the
State is at liberty to adopt whatever mix of emission limitations it
deems best suited to its particular situation." Train v. Natural Re-
sources Defense Council, 421 U.S. 60 at 79 (1975).
51. Big Rivers Electric Corp. v. Environmental Protection Agency, 523 F.2d
16 (6th Cir. 1975).
52. Kennecott Copper Corp. v. Train, 526 F.2d 1149 at 1155 (9th Cir. 1975),
cert, denied, 425 U.S. 935 (1976).
53. The Environmental Protection Agency gives "credit" for tall stacks only
if planned or constructed prior to the 1974 opinion of the Fifth Cir-
cuit, note 6 supra. Natural Resources Defense Council v. Environmental
Protection Agency, 529 F.2d 755 (5th Cir. 1976).
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3 THE CONSTITUTION AND EMISSION QUOTA STRATEGIES
3.1 INTRODUCTION
Emission quotas may be thought of as land use regulations exercised
under the police power that do not require that compensation be paid to
affected industrial developers. While emission quotas can be constitution-
ally supported under well-accepted doctrine that approves any government
regulation designed to achieve cleaner air and better health, emission quotas
may create legal problems because of the restrictions they impose on land
development. These restrictions present constitutional problems that may
distinguish emission quotas from conventional land use zoning.
In conventional zoning and emission density zoning, land uses
and densities are allocated under uniform and consistent zoning criteria.
Overly restrictive zoning regulations may present constitutional objec-
tions if land development is excessively constrained, but zoning
ordinances do not impose quota restrictions that prohibit all develop-
ment once a quota has been exhausted. The possibility for quota exhaustion
under non-EDZ air emission quotas thus raises constitutional questions not
associated with conventional zoning regulations. Objections that a de-
veloper's land has been unconstitutionally taken without compensation through
application of a non-EDZ emission quota may be raised in situations in which
development has been denied under the quota and no other reasonable use of
the land is available. Fairness objections under the equal protection clause
of federal and state constitutions may be raised to the method in which emis-
sions are assigned to would-be developers under an emission quota. It can
usually be expected that emissions will be assigned on a first-come basis,
although it may be important in some instances to deny approval to first-come
developers if they will use too high a proportion of the emission quota.
Whether this time-oriented basis for allocating emissions among developers is
supportable as a reasonable classification under the fairness requirement of
the protection clause raises another set of constitutional problems.
Equal protection objections arising from the method by which the nori-
EDZ emission quota is allocated do not arise under emission density zoning.,
because ownership of land itself carries with it a quota. Due process objec-
tives may arise under EDZ if the amount of land the developer is required to
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assemble is disproportionate to the intended use of the land. This excessive
land assembly requirement may be held to be confiscatory and an unconstitu-
tional taking of property.
3.2 DUE PROCESS
There are two branches to a due process rationale for emission quotas.
It is first necessary to find a supportable public purpose or rationale for
the adoption and administration of the quota. Since emission quotas imple-
ment important and valued air quality goals, it should not be difficult to
satisfy this part of the due process test.
The second and more exacting standard requires that public regulations
not be confiscatory. Public power over private property ranges from regu-
lation or prohibition of land use under what is known as the police power to
a taking of all or a part of the land under the power of eminent domain.3
Ordinarily, prohibiting or regulating the private use of land is considered a
valid exercise of the police power4 and may be carried out without compensa-
tion. The physical appropriation of private property for miblic use through
the exercise of the eminent domain power is deemed a taking and requires
payment of just compensation.6 In an intermediate situation, land use regu-
lation may impose so onerous a burden on the regulated property that the
rj
landowner is deprived of all reasonable use of the land. A restriction of
this type does not usually require compensation. Nevertheless, the property
owner is deprived of the beneficial use of his or her property without due
process of law and the regulation is held invalid.8
3.2.1 Confiscation of Property
There are no consistent judicial theories that determine the point at
which a regulation becomes tantamount to a taking and must be invalidated.
The discussion that follows therefore reviews several theories that can be
applied to the taking problem in the context of emission quotas. While no
definitive conclusions can be drawn, it is apparent that recent trends in
judicial doctrine have created a favorable climate for the adoption and imple-
mentation of emission quota strategies.
Throughout the cases there exists a tension between two conflicting
views of the taking issue as it arises in land-use regulation. Under one
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26
view, no taking occurs unless there is a full confiscation of the landowner's
right to the use of land.9 A competing judicial doctrine finds a taking when
the use value of the land has been diminished and there is no supporting
countervailing public interest. ° This diminution-of-value approach focuses
on a balancing of the community interest in land regulation against the re-
duced value of property due to curtained use. The application of this
approach to the taking problem reflects judicial respect for landowners'
right to develop their land against the public's right to limit that land-
owners' right to further acceptable public purposes. 2
In the early 1900s, courts were unsympathetic to diminution-in-value
claims. Drastic regulations that curtailed use value were sustained when
their objective was to eliminate harmful or noxious uses. 3 Beginning with
the landmark Euclid ** case, which sustained the exercise of the zoning power,
the courts implicitly accepted the idea that total deprivation of all use was
not necessary to constitute a taking.15 Although the Court in Euclid did not
specify when a diminution in value would lead to invalidation, courts follow-
ing the Euclid approach could and did invalidate regulations when the loss im-
posed on the property owner was significant but not wholly confiscatory. 6
Recent cases in some jurisdictions may have returned to the more
stringent confiscation test. While not rejecting outright the diminution-in
value approach, these cases have held that regulation is constitutional if
reasonable alternative uses remain to the landowner. They have redefined the
term "reasonable remaining use" to include relatively unintensive uses not
necessarily viable in an economic sense. This new test validates land-use
restrictions as long as a use of any kind remains. Departing from the
original formulation of the diminution-in-value test, this new approach takes
a different perspective of "reasonable remaining use," and accepts more
burdensome restrictions on the landowner as consistent with the due process
taking requirement.
These cases do not always arise in regulatory settings in which there
is a compelling public interest, as in cases in which a land use regulation
preserves environmental values entitled to high social priority. Many have
considered restrictions on industrial and commercial uses similar to those
likely to arise under emission quotas. For example, in MaGowan v. Cohalan,16
the highest New York court considered the constitutionality of a downzoning
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27
from industrial to residential use. Despite the drastic effect this down-
zoning had on the economic value of the plaintiff's land, the court held it
constitutional. Assured that the "market would provide a buyer,"19 the
court required the plaintiff to show that the new zoning classification would
provide "absolutely no reasonable return." °
In another case decided by the highest New York court, National
Merritt, Ino. V. Weistj21 a property owner sought an area variance allow-
ing development of a shopping center greatly exceeding size limitations
allowable for retail stores in general business zones. The property owner
contended that the topography of the land created a severe hardship that
limited the development of the property for shopping center purposes. The
owner maintained that compliance with the zoning restrictions would not
permit construction of a shopping center yielding a reasonable return on the
? o
land. The court distinguished the constitutional challenge to the ordi-
nance based on significant economic injury from the financial hardship re-
quired for an area variance. In a constitutional challenge, the owner must
"demonstrate beyond a reasonable doubt . . . that each and every use per-
mitted by the ordinance will fail to yield a reasonable return on the pro-
perty."23
These two recent New York cases indicate that the courts may have
decided to elevate the burden of proof required from landowners who attempt
to show that a land-use regulation as applied to their land is unconstitu-
tional. While not entirely rejecting the diminution-in-value rationale, they
do require greater rpoof of economic loss. In addition, the courts are pro-
viding a basis for sustaining potentially confiscatory land-use regulations
except in the most extreme circumstances.
The highest New York court has extended its confiscation rationale
in a case considering a local timing control ordinance imposing restrictions
similar to those that might be imposed under an emission quota. In Golden
V. Planning Bd. 5 a local ordinance conditioned residential development on
the availability of adequate municipal services and facilities. These ser-
vices and facilities would become available under a local capital improve-
ments program through which land development could be deferred for as long as
18 years.26 The argument that the ordinance amounted to a taking of property
was considered and rejected:
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Every restriction on the use of property entails hardships for
some individual owners. These difficulties are invariably the
product of police regulation and the pecuniary profits of the
individual must in the long run be subordinated to the needs of
the community.... The fact that the ordinance limits the use of,
and may depreciate the value of, the property will not render it
unconstitutional, however, unless it can be shown that the measure
is either unreasonable in terms of necessity or the diminution in
value is such as to be tantamount to a confiscation....
An equally relaxed view of the taking problem was adopted by a federal
Court of Appeals in a case that considered the constitutionality of an air
quality transportation control plan adopted for the Boston air quality con-
trol region. In South Terminal, Inc. v. EPA29 one of the controls adopted
in that plan, now precluded by the Clean Air Act, was a prohibition on the
construction of additional on-site parking facilities. As applied to the
Boston International Airport, the transportation control plan terminated
about 1100 planned parking spaces, requiring these spaces to stand idle and
thus, in effect, confiscating the revenues they would have produced.29 The
court refused to find a taking and placed heavy emphasis on the role of the
plan in achieving air quality standards. Paying due deference to Congres-
sional purpose, the court recognized that Congress intended to force com-
pliance with air quality standards "even if the costs were great," adding
that "[m]inimum public health requirements are often, perhaps usually, set
without consideration of other economic impact."'0 While this decision re-
flects the more relaxed view of the federal courts toward the taking problem
as compared with the often more stringent view of the state courts, it em-
phasizes that air quality objectives may support burdensome land-use control
restrictions.
While reiterating the rule that a taking has not occurred as long as
some reasonable use is allowed on the property, the court did note that
"[t]he takings caluse is ordinarily not offended by regulation of uses, even
thouph the regulation may severely or even drastically affect the value of
the land or real property."
Equally of interest are the suggestions offered by the court for mini-
mizing the loss. In this case the effect of the restriction was to freeze
part of the parking operator's land from parking use. The court suggested
that the parking spaces that had been eliminated could be sold to other
parking operators, leaving the seller free to use land under his restricted
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29
lot for other purposes. The court also noted that the parking restriction
had the effect of creating a parking cartel, so that any loss in revenue
from the parking prohibition could be compensated by an increase in prices
on remaining parking spaces. This analysis assumes that the demand for park-
ing is relatively inelastic, but the court, nevertheless, accepted this specu-
q o
lative possibility as one basis for rejecting the taking argument.
The price situation considered in South Terminal may not arise in the
emission quota context. Unlike the partial prohibition considered in South
Terminal, an emission quota could totally prohibit development of the re-
stricted land, although this is unlikely. In that event, the opportunity for
recoupment by the restricted landowner will not be present, although arrange-
ments for transfering air emission rights may moderate the taking objection.
Nevertheless, by suggesting that alternative uses consistent with the prohibi-
tion may avoid a taking objection, the South Terminal court underlines the
necessity for a total prohibition on land use before a taking will be found.
3.2.2 Defending Land-Use Regulations
Another line of cases indicates that land-use regulations that are
totally confiscatory of property values may nevertheless be held constitu-
3 0
tional because they serve some paramount collective interest. Examples
include regulations requiring the preservation of vulnerable environmental
areas, such as wetlands or isolated historic buildings. An isolated his-
toric building may be preserved for the benefit of the entire community even
though it does not bring a reasonable return to its owner. A wetlands area
may be preserved and all economically viable uses prohibited in order that
the entire community may enjoy its amenities and ecological values. In each
case the regulation may be totally confiscatory yet justified by a collective
public purpose.31*
There is a counterargument in these situations which suggests that a
taking should be found. An element of current taking doctrine is the recog-
nition that public restrictions on the use of land confer a net benefit on
society. Notions of fairness require that this burden should be shared among
those benefited. The historic preservation and wetlands cases are in this
category. Emission quotas may also fit this characterization. As adminis-
tered, emission quotas may concentrate a confiscatory economic loss on a
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single landowner so that the benefits of improved air quality can be enjoyed
Q C
by a larger, diffused public.
A recognition of a superior public right may legitimate the imposition
of this cost upon the landowner through an application of the avoidance of
harm doctrine. It has been accepted since the Euclid case that avoidance
of harm is an appropriate basis for police power regulation when that harm is
3 9
visited by one landowner on another. An example is the location of an in-
dustrial use in a residential area. The industrial use imposes external costs
on residential landowners, and the market provides no incentive for the owner
to internalize the cost by relocating. Land-use regulations are adopted to
prevent the imposition of this external cost and compensation is not re-
quired. lf° Recent cases recognize that resources such as wetlands and clean
air are public goods that are entitled to police power protection.1*1 Uses
which injure the natural state of these environmental goods and diminish the
public's right to enjoy them can be prohibited by applying the avoidance of
harm doctrine. 2 Since profit motivates the private landowner to convert the
public good to personal use, either by developing the wetlands area or con-
structing a new industry that pollutes the air, the public entity must inter-
vene to prevent this conversion. The market does not discipline the land-
owner to preserve the public good any more than it disciplines the landowner
to avoid a use which imposes an external cost on a neighbor.
Under this theory, a land-use restriction that prevents conversion of
a public good to private use avoids a harm to the public and is sustainable
on that ground. The regulation is not viewed as conferring a benefit on a
larger public at the expense of a single landowner but as vindicating the
public right to preservation of a public good.1* This result follows even
though the restriction is approximate to a confiscation of the private owner's
land. This novel concept views the collective rights of the public as equal
in stature to those of a private landowner. Inasmuch as a public good may
be valuable to the entire public but not to the individual landowner, the analy-
sis conceded that it might not be optimal to the landowner to preserve that
public good.1*5 In this instance, preservation through public regulation is
warranted."*6 The taking problem is avoided because the police power legiti-
mizes the preservation cost to the landower. Another explanation of the public
good doctrine is that preserving a public good not only benefits the general
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public but also the property owner, as a member of the general public.1*7
This reciprocity of advantage compensates the landowner for any loss in the
U R
development value of the land, and eliminates the taking claim.
There is yet another rationale that supports noncompensatory regula-
tion of land when there is total restriction of developmental use. This
theory, which also imparts equal weight to the collective rights of a diffuse
public, conceptualizes property rights as an interdependent network of com-
peting uses.1*9 It places the demand made by a private owner to develop a
commonly enjoyed resource on the same level as the right of the public to
maintain that resource in its existing state.50 This rationale perceives cer-
tain land resources as a "common," within which development by one landowner
burdens other interrelated lands that owners choose to preserve in a natural
state. Each use has a spillover effect. Since each use reacts negatively on
the other, neither is entitled to preference.5
Under this rationale, the conflict between the right to develop and
the right to preserve is resolved by a legislative evaluation of the com-
C n
parative costs and benefits of each. Spillover effects may be constitu-
tionally restrained in spite of the severe economic loss imposed by the pro-
hibition on development. The presence of interdependent spillover effects
distinguishes the regulation of vulnerable land resources from land-use regu-
lations that merely provide a greater net benefit to society.5!f The latter
case requires compensation while the first is merely a valid use of the
police power to avoid harmful spillovers on land use.
This rationale for a severe limitation on the development of land has
been most forcefully applied in cases upholding the constitutionality of re-
strictive wetlands regulations. In these cases, either a state statute or
a local ordinance limits the development of wetlands to minimal uses that
neither require major development nor disturb the wetlands area. While the
rationale for these cases is not always clear, they can be explained by the
spillover control theory outlined above. The ability of these cases to
support similarly restrictive emission quota limitations will be considered
later.
One important wetlands case adopting this theory, Sibson v. State, °6
was decided by the New Hampshire Supreme Court, which upheld a prohibition
on a proposed fill in a wetlands area. It found the salt marsh in question
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to be a valuable ecological asset to the area's seacoast and held that the
proposed fill would do "irreparable damage to an already diminished and irre-
placeable natural asset."57 In addition, the court felt that a neighboring
large flow of water would "magnify the deleterious effect which the fill
would have upon the entire 100 acres of the marsh,"58
The landowner did not contest the constitutionality of the state's
power to regulate land use in the salt marsh but claimed that a denial of
a permit to fill the marsh rendered the land economically useless and con-
stituted a taking of property. Giving minimal recognition to the diminu-
tion in the value of the land, the court sustained the permit denial and
held that the police power could be used to proscribe activities harmful to
the public. 9 In its treatment of the conflict between these competing de-
mands, the court gave heavy weight to the "importance of the public benefit
which is sought to be promoted against the seriousness of the restriction of
a private right sought to be imposed."60
The commons doctrine is also recognized in another important wetlands
case, Just v. Marinette County.61 In this case the Wisconsin Supreme Court
upheld a local wetlands ordinance, enacted pursuant to state mandate, that
severely restricted land uses in wetlands areas. Again, the landowners had
been prohibited under this ordinance from filling the marsh for purposes of
development. While the court's decision is plagued with inconsistencies, its
recognition of the commons doctrine is clear:
[W]e have a restriction on the use of a citizen's property,
not to secure a benefit for the public, but to prevent a
harm from the change in the natural character of the citi-
zen's property... What makes this case different...is the
interrelationship of the wetlands, the swamps and the natu-
ral environment of shorelands to the purity of the water
and to such natural resources as navigation, fishing, and
scenic beauty.62
Another important decision in which regulatory restraints on land use
were upheld in order to preserve environmental values is In re: Spring
Valley Development,** decided by the Maine Supreme Judicial Court. The
statute upheld was a unique Maine law requiring a permit for all major de-
velopment, including residential subdivisions. Permits were to be refused if
the development had an adverse effect on the natural environment. In uphold-
ing the constitutionality of the statutory permit requirements, the court
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expressly noted that land-use restrictions preserving the quality of the air,
soil, and water were within the police power.6"*
Although the Maine statute did not expressly limit land use, a refusal
of a permit under the act clearly could have a confiscatory effect on the
landowner. A permit can be denied for a use of the land that has an adverse
environmental effect and in this situation no developmental use may be allow-
able under the statute. In this event the court noted that the public wel-
fare "demands" that the land be used for another purpose.6 Later in the
opinion, the court modified this dictum by stating that the impact on the
environment must be unreasonable before a permit can be refused.66
These environmental land-use control cases represent a significant
trend in the case law. The importance of the public purpose in preserving
the environmental status quo in a common environmental resource has been
given significant judicial weight. Even though all developmental use of
the land may be restricted, the court accords priority to the public interest
in preserving a natural resource area and avoiding undue harm to the environ-
ment. No balancing of public purpose with private restriction is apparent
here. In the wetlands cases, this balancing process is part of the legis-
lative decision limiting developmental uses in the wetlands area.67
Whether the wetlands cases and the Maine case can be applied to the
application of emission quota strategies is another matter. Like a wetlands,
the air is a common resource. Consequently, there is no more an a priori
right in a landowner to engage in a land use that pollutes the air than there
is an o. priori- right in a landowner to engage in a land use that endangers an
environmental resource area.68 Indeed, the Maine court listed air quality as
an environmental resource entitled to protection under the state act.69
Nevertheless, there are differences in the wetlands and air quality
cases. Air is pervasive; it is enjoyed by all but it is enjoyed by all every-
where. In the wetlands example, the prohibition on land use is co-extensive
with the protected land resource. In the air quality example the prohibition
on land use is not co-extensive with the protected air resource. ° As an emis-
sion quota is administered, some landowners will be allowed to develop their
land while some will not. Protection of the common air quality resource is
brought about through a land use policy which is based on uniformly applied
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criteria but has differential impacts on the landowners affected by it.71
This policy may raise equal protection problems, which are discussed Sec.
3.3, but the due process taking problem that arises cannot be supported by
a blanket prohibition on all development, equally applied, that occurs under
wetland restrictions.
The situation that occurs in this example resembles the restriction
on development imposed on an owner of an isolated historic landmark. In that
situation, the argument was made that to concentrate the force of the re-
striction on a single landowner for the purpose of conferring a diffused
public benefit may not be tolerable. The same argument can be made when the
force of an emission quota is concentrated on a single landowner so that the
public may enjoy the benefits of clean air.
While a refusal to allow polluting development on a single industrial
site to enforce an emission quota may present difficult taking problems, more
than one site may be available for development in an area subject to emission
quota restrictions. The question to ask is whether the availability of al-
ternative sites precludes due process taking objections when polluting de-
velopment is forclosed on a site that happens to be owned by an industrial
developer.
While the availability of alternative sites as a defense to taking
objections has not been heavily litigated, one important case accepting this
defense is Bosse V. City of Portsmouth.72 In this case the municipality
rezoned a 4.2 acre tract surrounded by residentially zoned land to a light
industrial use. More than 850 acres of industrially zoned land had been pro-
vided in the city, and more than 690 of these acres were vacant. The court
reversed the rezoning, noting that the rezoning was discordant with uses in
the surrounding area73 and that there was available vacant and zoned indus-
trial land elsewhere in the city.71*
A decision to disallow a rezoning because alternative sites are avail-
able is most easily supportable in the context of a comprehensive plan that
provides community-wide designations for industrial development and that has
been implemented through a zoning ordinance allocating the designated areas
to industrial use. As the Oregon Supreme Court has pointed out, the "inte-
grity of comprehensive planning would be seriously compromised if a property
owner could obtain a zone change on the ground that...his proposed development
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35
would be less profitable in an appropriately zoned area." 5 Oregon is one of
several states that require zoning to be consistent with an adopted local
comprehensive plan. 6 The courts in these states can be expected to protect
the integrity of the plan by looking with disfavor upon zoning changes that
7 7
threaten prior zoning allocations consistent with the plan.
A similar judicial attitude is apparent in those cases, like Basse,
in which the alternative site defense is raised to a rezoning but no compre-
hensive plan has been adopted. In these cases the rezoning has been attacked
by landowners adjacent to the rezoned site, the municipality must find some
7 ft
policy basis to defend the rezoning, ,,and the availability of alternative
sites undermines this defense.79 The alternative ground for the decision in
Basse ° must also be considered; the surrounding residential zoning also
undermined the industrial rezoning struck down in that case. In the case
likely to arise under emission quotas, the area surrounding the site on which
polluting industrial development is refused is likely to be zoned or developed
for industrial use. This fact supports rather than undermines the argument
that the restricted site should also be industrially zoned.
Nevertheless, at least when the comprehensive plan supports existing
and future industrial zoning, an argument can be made that due process does
not require rezoning of another site in another area so that industrial de-
velopment may occur. The developer compelled to seek an alternative and
previously zoned site at most faces higher acquisition costs. Higher costs
will prevail if the alternative site is more favorably located for industrial
development or if the semimonopoly conferred on the owner of the alternative
site results in a higher price. Developers should not be allowed to raise
due process objections to zoning restrictions which require that they seek
sites at more costly locations. The higher price that may be required for a
previously zoned site may well be within the range of tolerance allowable by
the due process clause. One difficulty that may arise with the alternative
site defense in the non-EDZ emission quota context is that no available sites
may remain on which industrial development can occur witout violating the
quota. In this event, of course, the alternative site defense will not be
helpful.
So far in the discussion it has been assumed that the restriction on
land use imposed under an emission quota is permanent, thus potentially
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36
raising a due process taking problem. There may be reason to believe that in
some instances this restriction will be temporary. Rapid imporvements in air
quality in areas using an emission quota may allow pollution sources to locate
on initially restricted land in at least two ways. Existing polluting indus-
tries may move or shut down. Construction of new pollution sources on land
initially restricted under the emission quota would then be permissible. R€;-
ductions in existing pollution levels may also occur through the use of pol-
lution control technology by existing industrial polluters. Indeed, the non-
attainment area provisions of the Clean Air Act direct that reasonable fur-
ther progress be made toward attainment of NAAQSs. In nonattainment areas,
then, it is reasonable to expect that improvements in baseline pollution
levels will add increments to the emission quota and permit the development
of initially restricted land.
From this perspective, a restriction on industrial development imposed
under an emission quota may be viewed as temporary. The question that next
arises is whether the temporary nature of the restriction sustains its con-
stitutionality by forestalling taking objections. This issue was examined in
Q "I
the Ramapo decision. The land-use control program in this case imposed a
development quota within the municipality which fluctuated according to the
availability of public facilities and services.82 The decision can be con-
strued as upholding a restriction that defers, but does not permanently pro-
p rt
hibit, development.
The duration of the development restriction in the Ramapo case was
substantial. Development in some areas of the municipality was to be deferred
for periods up to 18 years. A delay of this magnitude was arguably suspect,
since other cases approving interim restrictions on development have empha-
sized that a restriction would be considered unreasonable if extended beyond
a relatively brief period. Nevertheless, the 18-year delay was upheld in
the Ramapo decision. In reaching this conclusion, the New York court was im-
pressed with the commitment made by the municipality to providing capital
facilities and services that would make development possible:
Without a doubt restrictions upon the property in the present
case are substantial in nature and duration. They are not,
however, absolute. The...[ordinance] contemplates a definite
term, as the development...[restrictions] are designed to
operate for a maximum period of 18 years and during that period
the Town is committed to the construction and installation of
a c
capital improvements.
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While the Ramapo case supports the view that a development restriction
imposed under an emission quota can be considered temporary, it is neverthe-
less possible to distinguish the emission quota from the Ramapo development
control program. In Ramapo, the municipality was committed to development
over the 18-year period and the developer was guaranteed the right to develop
once public services and facilities were made available. When emission quotas
are imposed as part of an air quality control program there is no absolute
guarantee that at some time, let alone within a reasonable period, develop-
ment restricted by the emission quota will be allowed to proceed. If so,
Ramapo may not be good authority for the proposition that restrictions imposed
under emission quotas can be sustained as temporary.86
A contrary argument can be made whenever emission quotas are imposed
in air quality control regions that are nonattainment areas. Reasonable pro-
gress toward attainment must be made in these areas, and the attainment time-
table presently in effect is relatively short. In these circumstances, land
development restrictions imposed under an emission quota can be constitu-
tionally supported as temporary restrictions on land use.
It also is possible that alternative nonpolluting uses of the property
may be possible. There is no due process requirement that a use of land be
allowed to pollute the air in order to forestall a taking objection. There
may be a variety of uses, e.g., warehouses, freight terminals, or storage
yards, which are compatible with uses in an industrial area and which cause
little sulfur dioxide and particulate pollution. As long as some reasonable
ft 7
use of the property remains, no taking has occurred. What is important in
this situation is a careful tailoring of the local zoning ordinance so that
alternative nonpolluting uses will not be restricted. In addition, the avail-
ability of other industrially zoned sites will provide alternative oppor-
tunities for industrial uses and help forestall taking objections.
Another possibility to consider is the careful administration of local
zoning controls so that the situation described in the example stated does
not arise. These opportunities will first be examined on the assumption that
a jurisdictional emission quota has been adopted; the emission quota is
applied to an entire jurisdiction.
Zoning controls for industrial uses may generally be administered in
one of two ways. Areas for industrial use may be zoned in advance so that
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38
industrial uses are permitted as of right in industrially zoned areas. As
an alternative, no industrial zones may be mapped in advance. Under this
alternative, industrial uses are permitted on a case-by-case basis as appli-
cations for industrial development are presented to the local zoning agency.
This second mode of zoning control may be exercised through the zoning amend-
ment process or through administrative techniques such as the floating zone.
Taking problems are likely to occur if industrial development using
the best available control technology occurs in industrial zones where fur-
ther development would cause a violation of the non-EDZ quota. This problem
can be avoided if the municipality links its industrial zoning with the areas
in which industrial development can occur consistent with the emission
ft ft
quota. If the municipality also underzones for industrial use in relation
to the allowable emission quota, the likelihood that taking problems will
arise will be correspondingly reduced. There is no requirement that avail-
able industrially zoned land precisely equal industrial demand. The munici-
pality can always forestall taking and other legal problems arising out of
underzoning by amending the zoning map in critical cases to allow additional
industrial use. In short, the local zoning ordinance operates as a veto on
the allocation of emissions under the emission quota. It can help allocate
industrial use consistent with the quota so that taking problems will be
avoided.
Difficulties may arise under this system if the market does not respond
to the local industrial zoning. Industrial developers may then seek zoning,
map amendments for industrial development outside prezoned industrial areas,
and upset the use of a zoning strategy to reinforce the emission quota. As
noted earlier, there is authority supporting a local refusal of additional
industrial zoning when pre-existing industrial zoning is available that is
adequate for local needs.89 Municipal resilience to attacks on the zoning
allocation is essential in this situation.
An even more effective local control over the allocation of the emis-
sion quota is available if the municipality does not prezone for industrial
use but allows industrial development to occur on a case-by-case basis
through a floating zone or similar technique. Under this method of adminis-
tration, the municipality can control new industrial development consistent
with the emission quota and can prohibit polluting development under its
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39
zoning ordinance once the quota is exhausted. Difficulties in the preclusion
of additional polluting industrial development in the community should not
occur so long as taking problems illustrated by the example given earlier do
not arise.90
The difficulty with this approach is that the standards adopted to
administer the floating zone or similar technique may not permit a refusal
of polluting industrial development. Usually, these standards allow pol-
luting industrial development provided it is consistent with adjacent uses.
A prohibition on polluting industrial development when it is compatible
with adjacent uses may be successfully attacked by the developer.
A possible remedy for this problem exists. If consideration of ad-
verse effects on air quality, as evidenced by a violation of the emission
quota, is incorporated into the floating zone standards, the process will
resemble the statutory site permit upheld in the Spring Valley case,9 which
validated adverse environmental impact as the basis for refusing a develop-
ment permit. The incorporation of emission quota criteria into the local
zoning ordinance creates a basis for considering air quality impacts under
the floating zone technique. Assuming that this kind of ordinance is autho-
rized under the state enabling statute, it will present no constitutional
problems under the Spring Valley theory.
If emissions are allocated on a case-by-case basis through a floating
zone emission quota, the nature of the taking problem may vary but the un-
derlying constitutional issues are the same. One problem that arises is that
the opportunities for controlling industrial development through the zoning
ordinance are not as easy to provide as they are when the emission quota is
applied to an entire jurisdiction. Because the floating zone emission quota
is applied to the area surrounding the industrial site and not to the entire
municipality, taking problems will arise on a case-by-case basis.
When the floating zone emission quota is used, the zoning strategy
which appears best adaptable to the quota at the local level is the floating
zone. As in the case of the jurisdictional emission quota, the decision to
allow polluting industrial use under the floating zone procedure will be made
at the same time as the decision to allocate the emission quota. Likewise,
standards can be included in the floating zone ordinance that allow a refusal
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40
of the new polluting industrial use for noncompliance with the emission quota
on the ground that allowance of the use will have an adverse effect on air
quality. As indicated earlier, the application of these standards to dis-
approve polluting industrial development under the floating zone ordinance
should withstand constitutional attack.
Due process taking objections of a different variety may arise under
emission density zoning. This technique does not permit the disapproval of
a pollution source if the owner of the source can acquire enough land to
bring his emissions under the quota. The question then becomes whether EDZ
is vulnerable because the land assembly requirement is disproportionate to
the amount of pollution the source emits. If EDZ is vulnerable on this
ground, there is a risk that a court will find it unconstitutional as a
taking if the land required for any one source is excessively dispropor-
tionate to the source's size.
This argument assumes that the land assembly requirement is measured
against the size of the source. An alternative assumption can be made:
that the constitutionally allowable land acquisition should be measured by
the amount of pollution emitted by the source. The land assembly requirement,
no matter how onerous, can then be justified as a permissible internalization
of the otherwise unacceptable effects of the pollutants that the source
generates.
There is support for the cost internalization approach to justify the
acquisition of additional land in State V. Gallop Building.,92 a case decided
by the New Jersey intermediate appellate court. In that case the landowner
owned two adjacent lots, one of which was occupied by an office building. A
local ordinance required a buffer strip planting on that part of the lot ad-
jacent to a residential district, and the application of this requirement in
this case deprived the owner of 20 feet of the width of the two lots, which
was 100 feet. An argument was made that this requirement amounted to a tak-
ing, but the court did not accept it, noting that "[i]n considering the
validity of the ordinance generally, we cannot limit ourselves to its impact
on the property of a particular defendant."93 Nevertheless, the court also
indicated that an ordinance of this kind might be invalid as applied to a
particular landowner. It noted that the width of the buffer strip is a func-
tion of the nature of the use; a large shopping center, for example, might
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41
require a buffer strip of considerable width while in this case the buffer
strip requirement approached the limits of reasonableness. The case was
remanded so that the landowner could apply for a variance from the buffer
strip requirement, and file another action to challenge the constitutionality
of the buffer strip requirement should the variance be denied.
The theory of the Gallop case can be applied to emission density zon-
ing to support the constitutionality of an acquisition of land necessary to
meet the emission density zoning quota. A rule of proportionality can be
applied, as in that case, that relates the emissions produced by the indus-
trial use to the amount of the land required. Because the land acquisition
requirement is related to the emissions generated by the industrial source,
the acquisition of land to satisfy the EDZ requirement can be justified as
an acceptable method for internalizing the adverse effect of the air pollu-
t ion emis s ions.
The Gallop case also underlines the assumption, which appears common
to zoning cases, that the constitutionality of the zoning restriction is
tested for its applicability to the unit of land ownership even though the
restriction is justifiable in concept as a proper application of the police
power. Implicit in this assumption is the corollary that the regulating
agency cannot demand compliance with the regulation by compelling the pur-
chase of additional land.
These assumptions have been tested in other regulatory settings, one
of which is local subdivision control. Subdivision controls govern the
platting and preparation of vacant land for urban development, and are
usually restricted to single-family residential development projects. They
provide criteria for subdivision layout and internal subdivision streets
and facilities, and may also require land dedications for facilities such as
streets, parks, and schools that are required for, or associated with, the
subdivision.9"1 Like emission density zoning, the requirements and dedica-
tions imposed by subdivision control also serve to internalize costs.
While the case law on subdivision land dedications is unsettled,
recent cases appear to have accepted subdivision dedications as constitu-
tional whenever the use of the dedicated land meets a public need generated
by the subdivision by charging the development for facilities that otherwise
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would have to be paid for with general public revenues. While there are only
scattered cases on the point, the courts again appear to have held that, while
land dedications are generally acceptable as a police power requirement, they
will be found unconstitutional if they are excessively burdensome to a parti-
q e
cular developer.
Another regulatory program that raises similar taking problems is the
official map. An official map is not a cost-internalization control. It aids
public land acquisition programs by holding land in an undeveloped state until
a public agency is ready to acquire it for designated public purposes, such as
highways or parks. Privately-owned land shown on an official map adopted by a
state or municipality is prohibited from development until it is acquired for
public purpose.9
Constitutional objections have been brought to the official map on the
ground that the temporary restriction on land development imposed by the offi-
cial map constitutes a taking of land. These objections have usually been re-
jected as long as the restriction is not maintained for an unreasonable period
of time,98 but the courts have also made it clear that an official map will be
held unconstitutional as a taking of property if an excessive amount of land
in one ownership is restricted. s
There is some reason to believe that the land assembly requirement im-
posed by EDZ may be constitutional, even under the restrictions imposed by
the land buffer, subdivision control, and official map cases. As discussed
above, the official map cases can be distinguished because the official map is
not a cost-internalization control. If the official map is so restrictive
that no development can occur on that part of the land not covered by the
official map, it can be argued that a taking has occurred as soon as the
official map has been imposed. A different problem arises under the land
buffer and subdivision control regulations. These controls internalize costs
that should appropriately be borne by the development and serve the same func-
tion as emission density zoning. Cases considering excessive land restriction
under these controls can be read as approving these restrictions only when
they are proportionate to the internalized cost. In the emission density zon-
ing context, it can be argued that the land acquisition required to meet the
EDZ requirement is proportional to the pollution emitted by the development,.
If so, the land buffer and subdivision control cases would appear to approve
the land acquisition requirement.
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There is a counterargument, however. At least in the subdivision con-
trol and official map cases, courts persuaded that a taking has occurred when
land is excessively restricted appear impressed by the fact that excessive
limitation on development substitutes for a physical taking of the land by the
public agency. In the official map situation, for example, a total temporary
restriction on land development on any one site functions effectively as if
the public agency had physically appropriated the land. The same result occurs
when the subdivision control ordinance is used to require a land dedication
for a street or park. Once more, the dedication of land by the developer is
an alternative to its acquisition by a public agency.
Similar arguments can be made in the air quality control context. As
an alternative to the acquisition of land to satisfy an emission density zon-
ing quota, the public agency could acquire land suitable for industrial de-
velopment and hold it free of development in order to meet the EDZ quota limi-
tations. The difference between this situation and the subdivision control
and official map situation is that air quality control agencies do not nor-
mally acquire land for air quality control purposes. Whether this distinction
will be seen as controlling is open to conjecture.
One final problem may arise in the emission density zoning context that
requires discussion. This argument, which is included for completeness,
assumes that (1) a polluting industrial facility cannot reduce its emissions
through plant-size reductions or the use of pollution control equipment, and
(2) alternative land uses are not possible. If the land owned by an indus-
trial developer is not sufficient to comply with the emission density limit
under the emission density zoning requirement, additional and probably adja-
cent land will have to be acquired. The problem of acquiring additional land
does not arise under land buffer, official map, or subdivision control situa-
tions; in these cases, any restrictions on, or dedications of, land are
applied to the land within the owner's control at the time the property is
developed. Under EDZ, the necessity to acquire additional land may create
additional constitutional problems.
There has been little consideration of requirements that a landowner
acquire additional land in order to comply with land use control restrictions.
This situation, of course, may often arise under residential density require-
ments. Enough land must be assembled by a developer in order to build
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dwelling units and still comply with applicable density requirements. Or-
dinarily, this type of land assembly should not raise legal questions. There
is no vested right to the development of vacant land, and developers who wish
to develop must comply with applicable restrictions before they can do so.100
3.2.3 Summary
Land use restrictions imposed under emission quotas raise potential
taking problems whenever the restriction deprives the owner of all reasonable
use of the land. The question to consider is whether these restrictions on
land development are so severe that a taking argument will be successful.
While it is possible, at least in some states, that taking objections to the
application of the emission quota will be sustained, a developing trend in
the cases indicates that the taking argument may not prevail except in ex-
tremely severe instances of land use restriction.
A series of arguments has been presented here that may overcome the
taking objection. One is based on the trend of authority in cases upholding
wetlands restrictions. These decisions would uphold restrictions on develop-
ment imposed under emission quotas as necessary to protect the public interest
in air resources. ° Another argument would rely on recent judicial decisions
which require a severe deprivation of development opportunity before a taking
is found to occur.102 A final argument would view a restriction on land use
imposed under an emission quota as temporary and thus sustainable as an
interim restriction on land development. °
How successful these defenses to the taking argument will be depends on
the disposition of the court asked to decide the question. Not all courts are
hospitable toward wetlands and similar restrictions on land use. Not all
courts take restrictions on land development lightly when a confiscation argu-
ment is raised. In many instances it will be difficult to view a land use
restriction imposed under an emission quota as temporary. Nevertheless, this
review of the decisions does suggest that in many instances taking objections
to land use restrictions imposed under an emission quota may be defended
successfully.
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3.3 EQUAL PROTECTION
Equal protection issues are more likely to arise if emission quotas
other than EDZ are implemented. Regulations will have to be designed to pre-
clude the possible problems with non-EDZ emission quotas outlined here.
These issues will be of concern if administration of the quota may foreclose
land development simply because the proposed development is either too early
or too late. Two examples immediately come to mind. In the first, an indus-
trial development is prohibited because it comes too soon. Permission to
develop may be denied because the development is so large or so located that
it would substantially exhaust the quota. In the second example, polluting
industrial development is denied because it is too late and cannot proceed
because the emission quota has been completely exhausted or because the emis-
sions to be produced are in excess of those that remain to be allocated.
Unfortunately, there is very little legal precedent to assist in analy-
zing this constitutional claim. The problem of the late developer is es-
pecially difficult. As Krasnowiecki has pointed out, "[t]here was a sense
running through standard zoning that you cannot establish regulations for an
area that would allow one landowner to deprive the other of a pro-rata share
of permissible development." ° "* In other words, as applied in the emission
quota context, there was acceptance of the principle that the quota cannot be
filled on a first-come basis if development will be prohibited on any land
subject to the quota once it has been exhausted. This problem does not arise
under traditional zoning ordinances. Traditional residential zoning assigns
a density limitation to all zoning districts, but each parcel of land within
the district is entitled to the allowable density. The density for a dis-
trict is not exhausted under the traditional zoning ordinance or EDZ until
all land within a district has been developed.
The Pamapo^05 decision again provides an analogous situation in which
the validity of a timing program which deferred development in some areas of
the municipality was considered. Under the Pamapo program, some development
was deferred on undeveloped land because necessary public facilities and ser-
vices were not available. Likewise, it is possible that late-coming de-
velopers would be denied permission under the Pamapo program if the munici-
pality decided that additional provision of facilities and services would not
be made. (The second, latent issue was not considered in the Pamapo case.)
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Deferral of development under the Ramapo program was upheld by the New
York court because it viewed the restrictions imposed as "a bona fide effort
to maximize population density consistent with orderly growth" ° 6 and as a
means "to insure continuous development commensurate with the Town's obliga-
tion to provide" ° the necessary facilities. The court thus upheld a timtid
growth program that deferred development in some areas of the municipality in
order that growth might be orderly. It is equally reasonable to manage growth
and development in a community so that air quality objectives will be achieved.
In administering a non-EDZ emission quota, for example, it may be important:
at some stages of the program to disallow some development in order that the
emission quota can be fairly allocated. Disallowance of heavily polluting
developments in the early stages will prevent an overload on the non-EDZ
quota and permit a fairer allocation of the quota among other developments,.
This method of quota allocation is supportable by the Ramapo decision. While
fairness in allocation was not explicitly a part of the Rcmapo program, the
decision to time new development in relation to the provision of new facili-
ties and services was made in order to prevent an overload on existing
facilities and monitor new growth in an orderly manner. Ramapo thus supports
fairness and orderliness in the allocation of development over time when an
acceptable community objective is to be attained. Air quality improvement is
as acceptable a community objective as the orderly provision of new facilities.
There have been a few cases, however, in which the courts have not
allowed a deferral of development in order to arrive at a more preferable
future development pattern. These cases stress the due process taking prob-
lems inherent in these limitations. Nevertheless, timing considerations are
implicated in these cases because the use of time as an acceptable element in
land-use control was not recognized. For example, in Petersen V. City of
Decorahj1®* the Iowa Court of Appeals considered the constitutionality of an
agricultural district classification by the city that was "intended to re-
serve areas suitable for nonagricultural use until the land is needed for de-
velopment in accordance with a future land use plan." °9 In this case the
city had refused a rezoning for a shopping center on the grounds that the
land should be reserved for future industrial use. The court noted that
"[t]he contention by the city that it placed Petersen's land in a 'holding'
classification until the right industry comes along must be assessed against
the fact that no new industry has been attracted to Decorah since 1964." °
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A taking was found to have occurred because the property owner would be forced
to hold the land for an unpredictable period subject to the payment of heavy
taxes. There was no possibility for productive use of property under the
agricultural district classification because the land was not suitable for
agricultural purposes.
A similar case came before the Michigan Supreme Court in Biske V. City
of Troy.111 In this case the city had zoned land at a street intersection
for office use pursuant to a comprehensive plan for the municipality that pro-
posed a civic center for the area, to be surrounded by shopping centers, of-
fice buildings, and parking facilities. Plaintiffs had asked for and been
refused a rezoning for a gasoline station on the site. Although the Michigan
Court of Appeals initially upheld the refusal, giving credit to the compre-
11?
hensive plan, the Michigan Supreme Court reversed and found the refusal to
rezone for a gasoline filling station unconstitutional. The Michigan Supreme
Court relied heavily on the fact that the comprehensive plan had not been
officially adopted. It also noted that if the refusal to rezone were sus-
tained the "hapless property owner" must wait, pay taxes and hope "that either
the anticipated development will come shortly or that the zoning authority
will release to some extent its griphold of his property."113
There are similarities between the fact situations in these cases and
the situation presented when development is deferred under a non-EDZ emission
quota in the hope that future development will either be better located or
emit less pollution. Both the Iowa and Michigan cases suggest that deferring
development because of plans or policies that suggest an alternative pre-
ferred development for the site will not be accepted, especially when the
site cannot be put to an interim productive use. This situation is likely to
occur if development is deferred under a non-EDZ emission quota allocation
process. While these cases relied on. due process taking objections to the
deferral, they implicitly reject timing of development as a basis for over-
coming the taking objection. They also suggest the presence of an equal pro-
tection objection if decisions to approve development have a timing element.
The problem of the rejected late developer was considered to some ex-
tent in another growth management case decided by a Federal Court of Appeal,
Construction Industry Association of Sonoma County v. City of Petaluma.11'*
In this case the city imposed a five-year, 500-unit annual quota on new hous-
ing development within the city in order to achieve a more orderly growth
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pattern. This annual quota was sustained against due process objections.
The court noted that the adoption of the quota for growth management purposes
served acceptable police power objectives. It did not discuss the effect
of the quota on developers prohibited from carrying out new housing develop-
ment in any one year once the quota was exhausted. Neither did the court
consider the equal protection problems implicit in this restriction. The
opinion can still be considered as endorsing quota restrictions that have the
effect of precluding development once the quota is no longer available. This
conclusion is reinforced by a footnote to the opinion1l6 in which the court
noted that its inquiry was "not unlike" the inquiry it would have had to make
had an equal protection objection been raised. It then noted that most legis-
lation discriminates among various classes of persons and business enter-
prises and applied the usual rule applicable to economic discriminations of
this type. This rule rejects an equal protection challenge if the restric-
tion bears a rational relationship to a legitimate local interest. 7 The
inference here is that a timing plan related to growth management objectives
is legitimate, even though that plan will necessarily preclude some develop-
ment once the quota adopted by the plan is exhausted. Likewise, an air
quality objective should be equally legitimate as a basis for imposing a
quota allocation system for new development.
What differentiates the Petalwna quota from a non-EDZ emission quota
is the temporary nature of the Petalima restrictions. These restrictions
were enacted for an initial period of five years. The court noted in another
1 1 ft
footnote that its decision was not to be construed as a permanent endorse-
ment of the quota, since it could be abandoned after the initial five-year
period. In contrast, the air pollution emission quota is permanent once the
emissions allocated by the non-EDZ quota have been exhausted and polluting
development is curtailed, unless changes in emission levels allow additional
polluting development. Exhaustion of the non-EDZ emission quota raises due
process taking and not equal protection objections, however. The permanent
nature of the emission quota does not affect the basis for making emission
allocations over time, which was arguably approved in the Petalima case.
The equal protection problems raised by the jurisdictional emission
quota are nearly identical to those raised in the cases discussed earlier,
especially in the Ramapo and Petaluma decisions. As in those cases, the
emission quota is applied on a jurisdictional level and allocates development
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within the jurisdiction over time in order to implement air quality objec-
tives. Due to the similarity in the use of phasing requirements and quotas to
implement air quality and growth management objectives, these cases support
the constitutionality of air pollution emission quotas when administered over
time. A contrary indication is provided by the Michigan and Iowa cases, al-
though these cases did not address the equal protection problems raised by
quota administration. Instead, the courts based their opinions on the due
process taking that occurs when development of a site is temporarily re-
stricted. These cases do indicate that the deferral of development so that
more appropriate development can occur at a future date may be invalidated by
courts on due process grounds. This conclusion is somewhat contradicted by
the generally favorable judicial reception of interim prohibitions on develop-
ment pending adoption or revision of a zoning ordinance or comprehensive plan.
Since the floating zone emission quota does not necessarily allocate
emissions by jurisdiction, the administration of the quota over time in some
cases cannot be defended by the plans or policies of a single governmental
unit, as occurred in the Eamapo and Petalwna cases. In these situations
nevertheless, the judicial support of timing programs evidenced in the cases
should support the administration of the quota when development is dis-
approved because it is premature or because the quota is exhausted.
3.4 FOOTNOTES
1. Traditionally, state and local government restrictions and prohibitions
on the use of property are valid if they are employed to protect the
health, safety, morals or public welfare of the community. Village of
Euclid v. Ambler Realty Co., 272 U.S. 365, 375 (1926). A modern approach
to the police power recognizes that "as a commonwealth develops politic-
ally, economically, and socially, the police power likewise develops,
within reason, to meet the changed and changing conditions." Candlestick
Properties, Inc. v. San Francisco Bay Conservation & Dev. Comm'n, 11 Cal.
App. 3d 557, 89 Cal. Rptr. 897, 905 (1st Dist. 1970), citing, Miller v.
Board of Pub. Works, 195 Cal. 477, 484, 234 P. 381, 383 (1925).
2. The exercise of the police power by the destruction of property which is
itself a public nuisance, or the prohibition of its use in a particu" ~r
way, whereby its value becomes depreciated, is very different from t_- r..
property for public use, or from depriving a person of his property with-
out due process of law. In the one case, a nuisance only is abated; in
the other, unoffending property is taken away from an innocent owner.
Mugler v. Kansas, 123 U.S. 623, 668-69 (1887).
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3. Fred French Inv. Co. v. City of New York, 39 N.Y. 2d 5, 8 (1976).
4. The constitutionality of zoning in general was upheld in the landmark
decision of Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
5. Eminent domain is the "power of the sovereign to take property for
public use without the owner's consent." 1 P. Nichols, The Law of
Eminent Domain § 1.11 at 2 (3d ed. 1950).
Under the power of eminent domain property cannot be
taken for public use without just compensation. How-
ever, under the police power, property is not taken
for use by the public; its use by private persons is
regulated or prohibited where necessary for the public
welfare.
Candlestick Properties Co. v. San Francisco Bay Conservation & Dev.
Comm'n., 11 Cal. App. 3d 557, 572, 89 Cal. Rptr. 897, 906 (1970).
6. The fifth amendment provides that "private property [shall not] be taken
for public use, without just compensation." U.S. Const. Amend. V. This
requirement is made applicable to the states through the fourteenth
amendment. Chicago, B. & Q. R.R. v. City of Chicago, 166 U.S. 226,
235-41 (1897)
7. Justice Holmes notes that when the exercise of the police power renders
the regulated property "wholly useless, the rights of property would
prevail over the other public interest, and the police power would fail."
Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908). This
principle is illustrated in the Averne Bay case. As a means to fore-
stall development of a rural area, the municipality zoned the owner's
property residential. The New York Court of Appeals recognized that
his property had no present practical value as zoned.
An ordinance which pevmanentZy so restricts the use of
property that it cannot be used for any reasonable pur-
pose goes, it is plain, beyond regulation, and must be
recognized as a taking of the property. The only sub-
stantial difference, in such case, between restriction
and confiscation is that restriction leaves the owner
subject to the burden of payment of taxation, while out-
right confiscation would relieve him of that burden.
Averne Bay Constr. Co. v. Thatcher, 278 N.Y. 222, 232, 15, N.E. 2d 587,
592 (1938) (emphasis in original).
8. Fred French Inv. Co. v. City of New York, 39 N.Y. 2d 587, 593-94, 350
N.E. 2d 381, 385, 385 N. Y. S. 2d 5, 8 (1976). Chief Judge Breitel
noted in French that many cases have erroneously equated the "overly
burdensome" restriction with a 'taking' under eminent domain. Id.
9. See supra note 7.
10. Mr. Justice Holmes stated: "While property may be regulated to a cer-
tain extent, if regulation goes too far it will be recognized as a
taking." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). See
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Lutheran Church in America v. City of New York, 35 N.Y. 2d. 121, 129,
132, 316, N.E. 2d 305, 310 312, 359 N.Y. S. 2d. 7, 14, 16 (1975) ["Con-
fiscatory"]. See also Sax, Takings and the Police Power, 74 Yale L.J.
36, 41-46 (1964).
11. There are many problems with the diminution of value approach. One
problem concerns the difficulty in finding a standard against which a
diminution in value can be measured.
12. Government could hardly go on if to some extent values
incident to property could not be diminished without
paying for every such change in the general law. As
long recognized some values are enjoyed under an im-
plied limitation and must yield to the police power.
But obviously the implied limitation must have its
limits or the contract and due process clauses are gone.
One fact for consideration in determining such limits is
the extent of diminution. When it reaches a certain mag-
nitude, in most if not all cases there must be an exercise
of eminent domain and compensation to sustain the act. So
the question depends upon the particular facts.
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 at 413 (Brandeis, J.,
dissenting). For a fascinating revisionist approach to due process
taking problems see B. Ackerman, Private Property and the Constitution
(1977).
13. The harmful or noxious use test is also referred to as the avoidance
of harm test. This test sustains regulations of property use to prevent
harm if either they do not affect the landowner's title or amount to a
seizure of his property. Regulation to avoid harm was valid irrespec-
tive of the economic burden imposed on the landowner. See Comment,
Regulation of Land Use: From Magna Carta to a JUST Formulation, 23
U.C.L.A. L. Rev. 904, 908 (1976). See also Pennsylvania Coal Co. v.
Mahon, 260 U.S. 623 at 668-69.
14. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
15. Id. at 387.
16. See note 10, Supra.
17. Under the original Holmes formulation of the diminution in value test,
a finding of a "reasonable remaining use" was necessary, though not
sufficient in itself to sustain a regulation. Comment, Regulation of
Land Use: From Magna Carta to a JUST Formulation, 23 U.C.L.A. L. Rev.
904, 922 n. 94 (1976). The new interpretation significantly departs
from the standards used in the original test. The revised interpreta-
tion recognizes the paramount power of the state to regulate valuable
and scarce resources in the public interest over the landowner's poten-
tial loss caused by the taking of a developmental right. It accepts a
finding of a reasonable remaining use as both necessary and sufficient
to sustain a restriction. Id.
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18. 41 N.Y. 2d. 434, 361 N.E. 2d 1025, 393 N.Y. S. 2d 995 (1977).
19. Id. at 437, 361 N.E. 2d at 1027.
20. Id. at 438, 361 N.E. 2d at 1027.
21. 41 N.Y. 2d 438, 361 N.E. 2d 1028, 393 N.Y. S. 2d 379 (1977).
22. Id. at 440-41, 361 N.E. 2d at 1030-31, 393 N.Y. S. 2d at 383-383.
23. Id. at 445-46, 361 N.E. 2d at 1034, 393 N.Y. S. 2d at 385. In contrast
to a constitutional challenge, the standard used in area variance cases
requires a showing of the economic impact upon the owner of a restric-
tion affecting a single use permitted by the ordinance. Id.
24. See notes 19, 20 and 23 supra.
In a case involving a landmark preservation restriction the court noted:
[T]he test to be applied is the same as in zoning
cases, i.e.: Have the plaintiffs demonstrated
that the regulation in issue deprives them of all
reasonable beneficial use of their property?...
Plaintiff's burden, in such connection, is to
establish that they are incapable of obtaining a
reasonable return..., not that they are not receiv-
ing it.
Penn Central Transp. Co. v. City of New York, 50 App. Div. 2d, 265,
272-73, 377 N.Y. S. 2d 20, 28 (1975) (emphasis in original), aff'd,
42 N.Y. 2d. 324, 366 N.E. 2d 1271, 397 N.Y. S. 2d 914, 98 Sup. Ct. 2646,
U.S. (1977). It should be emphasized that the New York
cases have been presented as illustrative. They are not necessarily
typical of all jurisdictions.
25. 30 N.Y. 2d 359, 285 N.E. 2d 291, 334 N.Y. S. 2d. 138, appeal dism.,
409 U.S. 1003 (1972) .
26. Id. at 367, 285 N.E. 2d at 295, 334 N.Y. S. 2d at 143.
In an important minimum lot size case, the court further defined "reason-
able remaining use" by distinguishing between an outright prohibition
and a restriction enacted as a stop-gap measure. The court stated:
"Though the value of the tract has been decreased considerably, it is
not worthless or useless so as to constitute a taking." Steel Hill Dev.,
Inc. v. Town of Sanbornton, 469 F. 2d 956, 962 (1st Cir. 1972).
27. 30 N.Y. 2d at 381, 285 N.E. 2d at 304, 334 N.Y. S. 2d at 154-55.
28. 504 F 2d 646 (1st Cir. 1974).
29. Id. at 678.
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30. Id. at 675.
31. Id. at 678.
32. Id. at 679.
33. Traditionally, the concept of a public right as superior to private
property rights has had limited application in the law. Usually, such
rights appeared in navigation servitude, public nuisance and the public
trust doctrines. Sax, Takings, Private Property and Public Rights, 81
Yale L.J. 149, 155 (1971). Although there is a developing trend toward
the acceptance of the public right doctrine, the conventional view is
still prevalent. Any government regulation which diminishes the value
of a private right so as to render it essentially worthless is a taking
of property and compensation must be paid. Id. at 156 n. 16. See
Dooley v. Town Plan & Zoning Comm'n, 151 Conn. 304, 197 A. 2d 770 (1964);
State v. Johnson, 265 A. 2d 711 (Me. 1970); Morris County Land Improve-
ment Co. v. Township of Parsipanny-Troy Hills, 40 N.J. 539, 193 A. 2d
233 (1964).
34. Penn Central Transp. Co. v. City of New York, 42 N.Y. 2d. 324, 366 N.E.
2d 1271, 397 N.Y. S. 2d 914, 98 Sup. Ct. 2646, U.S. (1977)
[landmark]; Sibson v. State, 115 N.H. 124, 336 A. 2d 239 (1975) [wet-
lands]; Brecciaroli v. Commissioner of Environmental Protection, 168
Conn. 349, 362 A. 2d 948 (1975) [wetlands]; Just v. Marinette County,
56 Wis. 2d 7, 201 N.W. 2d 761 (1972) [wetlands]; Candlestick Properties,
Inc. v. San Francisco Bay Community & Dev. Comm'n, 11 Cal. App. 3d 557,
89 Cal. Rptr. 897 (1970) [wetlands]; Trustees of Sailor's Snug Harbor v.
Platt, 29 App. Div. 2d 376, 288 N.Y. S. 2d 314 (1968) [landmark].
Compare Lafayette Park Baptist Church v. Scott, 533 S. W. 2d 856 (Mo.
App. 1977) [landmark]; Lutheran Church in America v. City of New York,
35 N.Y. 2d 121, 316 N.E. 2d 305, 359 N.Y. S. 2d 7 (1975) [landmark].
For a contrary view see cases cited supra note 33.
35. Fred French Inv. Co. v. City of New York, 39 N.Y. 2d 587, 596-97, 350
N.E. 2d 381, 387, 39 N.Y. S. 2d 5, 11 (1976); Westwood Forest Estates,
Inc. v. Village of South Nyack, 23 N.Y. 2d 424, 244 N.E. 2d 700, 702,
287 N.Y. S. 2d 347 (1969); Opgal, Inc. v. Burns, 189 N.Y. S. 2d 606,
612 (Sup. Ct. 1959); Vernon Park Realty v. City of Mount Vernon, 307
N.Y. 493, 498, 121 N.E. 2d 517, 519 (1954). However, Judge Fuld, in his
dissenting opinion in Vernon Park, illustrates the ease with which a
regulation can be categorized either as conferring a public benefit or
preventing a harm. Id. at 502, 121 N.E. 2d at 531.
36. The rationale expressed here is often used to invalidate landmark
preservation and wetlands regulations. See supra note 35. It can also
be used to invalidate emission quota restrictions.
37. The original harm test sustained policy power regulations which sought
to prevent landowners from imposing a harm on adjacent lands or the
community in general. A reinterpretation of this test now distinguishes
between restrictions designed to prevent a landowner from inflicting a
burden of external costs upon a neighbor or the community, and
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restrictions requiring the landowner to provide some public benefit.
Dunham, A Legal and Economic Basis for City Planning, 58 Colum. L. Rev,,
650 (1958).
38. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
39. Id. at 387-88.
40. See text accompanying notes 1, 2, and 5, supra.
41. See text accompanying notes 49-55, infra.
42. The first major environmental case to adopt this approach was Just v.
Marinette County, 56 Wis. 2d 7, 201 N.W. 2d 761 (1972). There, the
court stated:
[We must] re-examine the concepts of public benefit
in contrast to public harm.... We start with the
premise that lakes and rivers in their natural state
are unpolluted and the pollution which now exists is
man made.... This is not, in a legal sense, a gain
or a securing of a benefit by the maintaining of the
natural status quo of the environment... An owner
of land has no absolute and unlimited right to change
the essential natural character of his land so as to
use it for a purpose for which it was unsuited in its
natural state and which injures the rights of others.
Id. at 16-17, 201 N.W. 2d at 767-68.
43. Id. In Candlestick Properties, the court requoted the extensive findings
of the California legislature that "the public has an interest in the
Bay as the most valuable single natural resource of an entire region.,..
[Filling in] San Francisco Bay... threatens the Bay itself and is there-
fore inimical to the welfare of both the present and future residents of
the area surrounding the bay;..." Candlestick Properties, Inc. v. San
Francisco Bay Conservation & Dev. Comm'n., 11 Cal. App. 3d 557, 564, 89
Cal. Rptr. 897, 900 (1970).
44. See Sax, Takings, Private Property & Public Rights, 81 Yale L. J. at 159
(1971). See also note 33, supra. For a critique of the Sax position
see B. Ackerman, Private Property and the Constitution 54-56 (1977) (Sax
places too much weight on avoidance of compensation as means to facili-
tate enactment of environmentally protective legislation).
45. Gold, The Welfare Economics of Historic Preservation, 8 Conn. L. Rev.
348, 353 (1970).
An example of this balancing process appears in Spring Valley. In this
case the property owner contested the application of an environmental
regulation to a subdivider. The court responded:
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55
[T]he Legislature intended. . . to prevent
ecological damage before it occurs rather
than to permit the occurrence of harm which
can then be cured only at great public expense
if at all. It is not unreasonable to place
upon the subdivider. . . the responsibility
for avoiding an inevitable large scale ecologi-
cal calamity. . . The legislature reasonably
concluded that the public welfare requires that
control be exercised through the subdivider
rather than attempting it through 90 different
purchasers whose properties can perhaps never at
that later point — because of sheer weight and
concentration of numbers — avoid environmental
misadventure.
In Re Spring Valley Dev., 300 A. 2d 736, 749 (Me. 1973).
46. See Gold, note 45, supra, at 352: "If the aggregate value of the
[public] good to all these consumers equals or exceeds the cost of its
production, then we have created value by producing the good."
47. Id. at 353.
48. Id.
49. Traditional takings doctrine is based solely upon the economic conse-
quences of an action that occurs exclusively within the boundaries of
the owner's property. If, however, we view property as a network of
relationships, then the effect of any use necessarily extends beyond its
borders. The use of one property is also a use of or demand upon other
property. Sax, note 44, supra, at 152.
50. See note 32, supra.
51. A spillover results from the use of a common resource to which another
landowner has an equal right. The incompatibility of these uses cannot
be resolved by parceling out the resource in equal shares. For example,
the owner of an air polluting factory demands the right to pollute the
air while the adjacent residential property owner demands clean air. In
this case, the demands upon a common resource arise from both sides.
Sax, note 44, supra at 154, 161.
52. Id. at 159.
53. Regulations that protect the rights of diffuse interest holders do not
"take" something the public never had before. Instead these regulations
implicitly recognize a public interest in common and try to resolve
these conflicting private and public claims. Id. at 172. This view is
contrary to traditional taking law which assumes that the private prop-
erty owner is the only party affected by government action. Id. at 154.
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56
54. Compare Just v. Marinette County, 56 Wis. 2d 7, 201 N.W. 2d 761 (1972)
(upholding wetland regulation) with Morris County Land Improvement Co.
v. Township of Parsippany-Troy Hills, 40 N.J. 539, 193 A. 2d 232 (1963)
(contra).
55. This theory narrows the taking issue to whether the regulation prohibits
a landowner from making a use of his land that has no spillover effects.
Compensation is due in this case. Sax, note 44, supra, at 164.
56. 115 N.H. 124, 336 A. 2d 239 (1975).
57. Id. at 126, 336 A. 2d at 240.
58. Id.
59. Id. at 127, 336 A. 2d at 243.
60. Id. at 129, 336 A. 2d at 242, citing, Richardson v. Beattie, 98 N.H. 71,
75-76, 95 A. 2d 122, 125 (1953).
The court further noted that:
[T]he importance of wetlands to the public
health and welfare would clearly sustain the
denial of the permit . . . even were their
rights the substantial property rights in-
herent in a current use of an activity on
their land.
115 N.H. at 129, 336 A. 2d at 242. The court implicitly states that no
consideration will be given to the loss of speculative profits arising;
from a future use. For further court consideration of lost future
profits see Chevron Oil Co. v. Beaver County, 22 Utah 2d 143, 145, 449
P. 2d 989, 991 (1969), quoting, Dowse v. Salt Lake City Corp., 123 Utah
107, 100-11, 255 P. 2d 723, 724 (1953).
61. Wis. 2d 7, 201 N.W. 2d 761 (1972).
62. Id. at 16-17, 201 N.W. 2d at 767-78.
The court also recognized the competing rights of the diffused public
and the individual landowner to use of a commons:
[I]f the damage is such as to be suffered by
many similarly situated and is in the nature of
a restriction on the use to which land may be
and ought to be borne by the individual as a
member of society for the good of public safety
... it is a reasonable exercise of the police
power . . .
Id. at 15, 201 N.W. 2d at 767, citing, Stefan Auto Body v. State Highway
Comm'n, 21 Wis. 2d 363, 369, 124 N.W. 2d 319, 323 (1963).
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57
63. 300 A. 2d 736 (Me. 1973).
64. Id. at 748.
65. Id. at 750.
66. Id. at 751. The court noted that the failure to implement zoning
restrictions may generate costs for the diffuse community interest for
which no compensation is required. Thus, "the legislature has declared
the public interest in preserving the environment from anything more
than minimal destruction to be superior to the owner's rights in the
use of his land. . ." Id.
67. Some balancing is allowed in the Maine case, since the harm to the
environment must be unreasonable before a permit may be refused under
Maine Law. Id. However, the factor of private loss in land value is
not placed on an equal footing with the public purpose to be advanced
by such a restriction. The loss in value factor merely remains as a
guide to the legislature when considering the appropriateness of a land-
use regulation. See F. Bosselman, D. Callies & J. Banta, The Taking
Issue 662 (1973).
68. See text accompanying note 51, suppa.
69. See note 64, supva.
70. This argument loses weight under the commons approach. The purpose of
emission quota restrictions is to avoid the occurrence of a negative
spillover — deterioration of air quality — by placing restrictions
upon those producing these effects. In wetlands situations, it is
important to deny development on land in order to avoid spillover
effects on adjacent property. In air pollution cases it is also impor-
tant to restrict the use of land to avoid spillover on adjacent property.
The notion of the ambient air as a common good is recognized. See
United States v. Causby, 328 U.S. 256, 261 (1946).
In addition, it does not matter that the regulatory criteria used are not
extensive with the resource to be protected. What is necessary is that
use of the zoning power must advance the health, safety, morals or
public welfare of the community. The environmental cases illustrate the
legitimacy of clean air as an appropriate police power purpose.
71. A differential land use policy may be upheld if the legislative stand-
ards are clearly defined and reasonably related to the goals that are
to be achieved.
72. 107 N.H. 523, 226 A. 2d 99 (1967).
73. The requirement that the rezoning be consistent with the plan and the
surrounding area has been adopted by other courts. See infra note 81.
"Once a [zoning scheme] is adopted, changes in it should be made only
when such changes are consistent with the over-all objectives of the
plan and in keeping with changes in the character of the area or neigh-
borhood to be covered thereby." Smith v. Washington, 241 Or. 380, 384,
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58
406 P. 2d 545, 547 (1965). See also Fasano v. Board of County Comm'rs,
264 Or. 574, 585, 507 P. 2d 21, 28 (1973); Baker v. City of Milwaukee,
271 Or. 500, 514, 533 P. 2d 772, 779 (1975); Buddies v. City Council of
West Linn, 21 Or. App. 310, 318-22, 535 P. 2d 583, 588-89 (1975); Green
v. Hayward, 275 Or. 693, 552 P. 2d 815, 823 (1976).
74. It is clear from the opinion that these two factors would uphold the
municipality's refusal to rezone for industrial use. In fact, the
Oregon Supreme Court placed heavy emphasis on the second factor by
requiring that the party requesting the rezoning prove that the public
need would best be met by changing the classification of the owner's
property as opposed to using other available and appropriate zoned pro-
perty. Fasano v. Board of County Comm'rs. 264 Or. 574, 585, 507 P. 2d
21, 29 (1973).
75. Green v. Hayward, 275 Or. 693, 553 P. 2d 815, 824 (1976). See also note
60, supra.
76. See note 73, supra. See also, e.g., Green v. County Planning & Zoning
Comm'n., 340 A. 2d 852 (Del. Ch. 1974), aff'd., 344 A. 2d 386 (Sup. Ct.
1975); Valenzia v. Zoning Bd., 270 Md. 478, 312 A. 2d 277 (1973; Fon-
taine v. Board of County Comm'rs., 493 P. 2d 670 (Colo. Ct. App. 1972);
Schilling v. City of Midland, 38 Mich. App. 568, 196 N.W. 2d 846 (1972);
Heran Holding Corp. v. City of Albany, 63 Misc. 2d 152, 311 N.Y.S. 2d
198 (Sup. Ct. 1970); Udell v. Haas, 21 N.Y. 2d 463, 235 N.E. 2d 897, 2,88
(1968). For a general discussion on the relationship between local com-
prehensive plans and the zoning process see Mandelker, The Role of the.
Local Comprehensive Plan in Land Use Regulation, 74 Mich. L. Rev. 899
(1976).
77. Buddies v. City Council of West Linn, 21 Or. App. 310, 535 P. 2d 583
(1975). Judicial reluctance to allow rezonings inconsistent with the
plan is reflected in stringent standards of proof. In Fasano, the Court
set out the requirements needed to sustain a rezoning:
The more drastic the change, the greater will be the burden
of showing . . . conformance with the plan . . . [and] a
public need for the kind of change ... If other areas have
previously been designated for the particular type of develop-
ment , it must be shown why it is necessary to introduce it
into an area not previously contemplated and why the pro-
perty owners there should bear the burden of departure.
Fasano v. Board of County Comm'rs., 264 Or. at 585, 507 P. 2d at 29.
78. Adajacent property owners attacking a rezoning will usually argue that
the rezoning has improperly conferred a benefit on the property owner
who has received the rezoning. The municipality must then defend
against this assertion by relying on policy justifications indicating
that the rezoning serves some overall community purpose.
79. See supra note 74.
80. 107 N.H. 523, 226 A. 2d 99 (1967).
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81. Golden v. Planning Bd. of the Town of Ramapo, 30 N.Y. 2d 359, 285 N.E.
2d 291, 334 N.Y.S. 2d 138, appeal dism., 409 U.S. 1003 (1972).
82. Id. at 373, 285 N.E. 2d at 298, 334 N.Y.S. 2d at 147.
83. Id. at 382, 285 N.E. 2d at 304, 334 N.Y.S. 2d at 155.
84. See Collura v. Town of Arlington, 367 Mass. 881, 887, 329 N.E. 2d 733,
738 (1975); Steel Hill Dev. Co. v. Sanbornton, 469 F. 2d 956, 962 (1st
Cir. 1972); State v. Snohomish County, 79 Wash. 2d 619, 488 P. 2d 511,
513-14 (1971); Rubin v. McAlevey, 54 Misc. 2d 338, 340-41, 282 N.Y.S. 2d
546 (Sup. Ct. 1967), aff'd3 29 App. Div. 2d, 288 N.Y.S. 2d 519 (1968);
Compana v. Clark, 82 N.J. Super. 392, 397, 197 A. 2d 711, 714 (L. Div.
1964).
85. 30 N.Y. 2d at 380, 285 N.E. 2d at 304, 334 N.Y.S. 2d at 164.
86. A careful reading of this case seems to indicate that the court will
facially distinguish interim ordinances, however substantial the nature
and duration of the restrictions, from absolute prohibitions. Id. The
court also stated that the landowner would be entitled to seek declara-
tory relief if the town transformed the restriction into a flat prohibi-
tion by failing to provide adequate facilities and services. Id. at 373
n. 7, 285 N.E. 2d at 298-299 n. 7, 334 N.Y.S. 2d at 148.
87. While the property owner may challenge the ordinance here claiming that
a substantial diminution in the value of property is commensurate to a
taking, the courts have rejected this argument. See text accompanying
notes 16-37, supra. See also Sands Point Harbor Inc. v. Sullivan, 136
N.J. Super. 436, 346 A. 2d 612 (App. Div. 1975); Steel Hill Dev. Inc. v.
Town of Sanbornton, 469 F. 2d 956 (1st Cir. 1972). In Krause v. City of
Royal Oak, 11 Mich. App. 183, 160 N.W. 2d 769 (1968), the Supreme Court
of Michigan noted: "[T]he mere fact that land may have a greater selling
value for a possible use of different character than that for which it
is zoned is not a sufficient basis for holding the ordinance in-
valid . . ." Id. at 190, 160 N.E. 2d at 772, citing, Smith v. Village
of Wood Creek Farms, 371 Mich. 127, 133, 123 N.W. 2d 210, 213 (1963).
88. Note that municipal projections for industrial development will or-
dinarily have been computed when the emission quota is set. That is,
the quota will allow a margin for industrial growth as long as the na-
tional air quality standards are not violated.
89. See text accompanying notes 74 and 44, supra.
90. Floating zones have been upheld as a valid land-use regulatory measure.
See Beall v. Montgomery County Council, 240 Md. 77, 212 A. 2d 751 (1965);
Rodgers v. Village of Tarrytown, 302 N.Y. 115, 96 N.E. 2d 731 (1951). In
general see Mandelker, Delegation of Power and Function in Zoning Admin-
istration, 1963 Wash. U.L.Q. 60, 89-97. See also supra note 5.
91. In re Spring Valley Development, 300 A. 2d 736, 748 (Me. 1973).
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60
92. 103 N.J. Super. 367, 247 A. 2d 350 (App. Div. 1968). See also 2 R.
Anderson, American Law of Zoning § 9.11 (2d ed. 1976).
Other cases have also upheld the buffer strip concept without specifi-
cally considering its constitutionality as applied to the affected pro-
perty. See, e.g., Hedrich v. Kane County, 117, 111. App. 2d 169., 253
N.E. 2d 566 (1969).
Cf. Kozesnik v. Montgomery Tp., 24 N.J. 154, 131 A. 2d 1 (1957). The
Gallop case is discussed in Quinton v. Edison Park Dev. Corp., 59 N.J.
571, 285 A. 2d 5 (1971).
93. Id. at 272, 247 A. 2d at 353.
94. See Note, Subdivision Land Dedications: Objectives and Objections, 27
Stan. L. Rev. 419 (1975).
95. Just what nexus must be proved between the service need generated by the
subdivision and the dedication demanded from the developer has not yet
been determined. For an expansive view of this requirement, see Asso-
ciated Home Builders of Greater East Bay, Inc. v. City of Walnut Creek,
4 Cal. 3d 633, 484 P. 2d 606, 97 Cal. Rptr. 630,'appeal dismissed, 404
U.S. 878 (1971). This case considered the constitutionality of a lot
fee requirement, which is often imposed as an alternative to a land
dedication. For a recent review of the case authority, see Comment, Sub-
division Exactions: The Constitutional Issues, the Judicial Response,
and the Pennsylvania Situation, 19 Vill. L. Rev. 782 (1974).
96. See East Neck Estates v. Luschinger, 61 Misc. 2d 619, 305 N.Y.S. 2d 922
(Sup. Ct.) (Trial court). The planning board required plaintiff to dedi-
cate a portion of his shore front property as a condition to subdivision
plat approval. The court invalidated the dedication because the strip
of land was worth one-third of the total value of the property. See
also Frank Ansuini v. City of Cranston, 107 R.I. 63, 264 A. 2d 910
(1970). The municipal ordinance required developers to dedicate seven
per cent of their land for recreational purposes. This requirement was
invalidated on the ground that the mandatory seven per cent dedication
was arbitrary and could be unreasonable as applied to a particular de-
velopment .
Local ordinances also commonly require that developers set their dwel-
lings or buildings back a designated distance from a street or highway.
Setback regulations have also been held unconstitutional when they de-
prive the landowner of an excessive amount of his land. See, e,g.3
Zampieri v. Township of River Vale, 29 N.J. 599, 153 A. 2d 28 (1959).
97. See Mandelker, Planning the Freeway: Interim Controls in Highway Pro-
jects, 1964 Duke L.J. 439.
98. See e.g., Grisor, S.A. v. City of New York, 83 Misc. 2d 1054, 374 N.Y.S.
2d 549 (Sup. Ct. 1975) (trial court), rev'd on other grounds, 54 App.
Div. 2d 685, 387 N.Y.S. 2d 271 (1976).
99. See Jensen v. City of New York, 42 N.Y. 2d 1079, 369 N.E. 2d 1179,
399 N.Y.S. 2d 645 (1977).
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100. See e.g., Elevens v. City of Manchester, 103 N.H. 284, 170 A 2d 121
(1961) (subdivision control).
101. See text accompanying notes 18-27, supra.
102. See text accompanying notes 56-69, supra.
103. See text accompanying notes 82-86, supra.
104. Krasnowiecki, Legal Aspects of Planned Unit Development in Theory and
Practice, in Frontiers of Planned Unit Development 99, 104 (R. Burchell
ed. 1973).
105. Golden v. Planning Board of the Town of Ramapo, 30 N.Y. 2d 359, 285
N.E. 2d 291, 334 N.Y.S. 138, appeal dism., 409 U.S. 1003 (1972).
106. Id. at 378, 285 N.E. 2d at 302, 334 N.Y.S. 2d at 152.
107. Id. at 379, 285 N.E. 2d at 302, 334 N.Y.S. 2d at 152-153.
108. 259 N.W. 2d 553 (Iowa Ct. App. 1977) (rev. denied).
109. Id. at 554.
110. Id.
111. 6 Mich. App. 546, 149 N.W. 2d 899 (1967), rev'd, 381 Mich. 611, 166
N.W. 2d 453 (1969).
112. Id. at 612, 166 N.W. 2d at 453.
113. Id. at 617, 166 N.W. 2d at 456-57.
114. 375 F. Supp. 574 (N.D. Cal. 1974), rev'd, 522 F. 2d 897 (9th Cir. 1975).
Cert, denied, 96 Sup. Ct. 1148 (1976).
115. Id. at 907.
116. Id. at 906 n. 11.
117. Id. See also Ybarra v. City of Town of Los Altos Hills, 503 F. 2d 250,
254 (9th Cir. 1974).
118. 522 F. 2d at 909 n. 17.
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4 EMISSION QUOTA STRATEGIES AND THE STATES
4.1 THE ROLE OF THE STATES
The Clean Air Act creates a federal air pollution control program whose
implementation depends on state and local government. The Act sets forth
federal NAAQSs and procedures for reviewing and approving state air pollution
control programs, but the federal effort is linked to state air quality plan-
ning, and can even be considered to be constrained by state actions. As dis-
cussed in Chapter 2, federal enforcement actions are limited in the absence
of an approvable SIP or when a state is not implementing its program according
to its own SIP. The EPA Administrator can only amend a SIP after extensive
opportunities by the state to correct perceived deficiencies, and can only
bring enforcement actions against violators of the federal standards and the
SIP, and not against a state itself.
The federal air pollution control program is essentially a collection
of state air pollution control programs, all tied to administrative procedures
and air quality standards established under the Clean Air Act. State and
local governments are primarily responsible for implementation. To a large
extent, EPA options for enforcement and implementation are even limited by
state preemption—the Administrator's actions must be linked to existing
SIPs.2 Therefore, this chapter focuses on the state role in air pollution
control, especially on the issues that arise when states consider emission
quota strategies as part of their air pollution control programs.
States are the principal repositories of regulatory power in those
areas of law or regulation not preempted by the Congress to the federal govern-
ment . In those areas not expressly granted to the federal government—by the
Constitution or by the Congress passing statutes pursuant to the Constitu-
tion—the states may exercise regulatory jurisdiction to promote the "health,
safety, and general welfare" of their inhabitants. This grant of authority,
known as the police power, defines states' ability to regulate pursuant to
3
these objectives.
Air pollution control is traditionally an area of state regulation.
State air pollution control regulations predate the Clean Air Act and other
federal legislation establishing a national interest in air quality management
and emission control. Air pollution control is clearly associated with
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traditional authority of the police power, most notably the protection of
public health and safety. This traditional exercise of authority is recog-
nized by Congress within the Clean Air Act itself, where the Congressional
findings state that "the prevention of air pollution at its source is the
primary responsibility of States and local governments."1*
This regulatory structure is important when considering potential state
adoption of emission quota strategies as air pollution control techniques.
Under this perspective, it is important to realize that the Clean Air Act and
its provisions have only a minor impact on a state's ability to consider
emission quota strategies under exercise of the police power. The Act estab-
lishes standards for both acceptable air quality (as set forth in the NAAQSs)
and approvable state emission control plans to meet the requirements for AQMA
planning and the SIPs. The Act does not "authorize" states to develop air
pollution control regulations, because they already possess this authority as
an inherent power. In essence, the states have the inherent authority to
consider any number of techniques to control air pollution, including emission
quota strategies. This authority is limited by the requirements for appro-
vable SIPs under the Act and by constitutional constraints applying to state
implementation of specific air pollution control regulations, topics dis-
cussed in greater detail in Chapters 2 and 3.
States' authority to exercise the police power resides in the state
legislatures. The legislatures are responsible for allocating this power
among the various state agencies and units of local and regional government
created by specific state statutes. Such statutes are typically called enab-
ling legislation, because they allow a unit of state or local government to
undertake some activity in furtherance of the police power residing in the
state legislature. Enabling legislation generally gives units of government
specific jurisdiction and establishes procedures under which this jurisdic-
tion can be exercised.
The legal issues concerning state implementation of EDZ and other
emission quotas therefore involve specific exercises of the police power that
can be administered by state and local government under enabling legislation.
The two major questions arising from this structure and authority to regulate
are:
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1. Does state enabling legislation allow the use of emission
quota strategies on the state and local levels?
2. If so, how can this authority be delegated among the various
units of government authorized to exercise the police power
under existing enabling legislation?
In order to answer these questions, the enabling legislation and ad-
ministrative regulations of six states — Alabama, Colorado, Illinois, Minn«i-
sota, New Jersey, and Pennsylvania — were surveyed. These states represent:
a broad diversity of geographic areas and air quality programs, each reflect-
ing air pollution and political issues unique to the state. The findings
generated by this survey may be applicable to a larger number of states,
especially when the broad legal issues that may arise through the use of emis-
sion quota strategies are considered. The specific findings of this survey,
as well as the methodology and selection criteria used to identify and select
the six states, are given in Appendix B. To a large extent, the following
discussion is based on this survey.
Air pollution can be controlled on either the state or substate levels
of government (or both). State enabling legislation can create an air pol-
lution control program to be implemented by a state agency. The police power
also can be delegated to local and regional agencies created by state enab-
ling legislation or grants of authority under the state constitutions. Sub-
state levels of government include local government units, such as counties,
towns and townships, cities, and villages, as well as regional agencies con-
sisting of a number of local governments acting in unison for specified pur-
poses. They can also include special districts established by state law to
service substate jurisdictions. Technically, under the principles of delega-
tion of authority involving the police power, any or all of these governmental
entities can be authorized to exercise air pollution controls within their
political boundaries, and this authorization can involve considerations of
emission quota strategies as air pollution techniques.
To explore this factor in greater detail, this chapter examines the
authority and implementation of emission quota strategies on both the state
and substate levels.
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4.2 STATE IMPLEMENTATION OF EMISSION QUOTA STRATEGIES
All of the states surveyed (see Appendix B) delegate principal air
pollution control authority to state government. State enabling legislation
generally creates a state air pollution control agency and authorizes it to
consider air pollution control standards and techniques to regulate all
sources of air pollution within the state jurisdiction, consistent with state
policies and objectives and with the objectives of relevant federal legis-
lation, such as the Clean Air Act.
The use of emission quotas as air pollution techniques must be con-
sistent with the authority granted in the state enabling legislation. A
question arises early in this consideration involving the nature of emission
quota strategies. Are such techniques air pollution controls or land use
controls? Although this issue appears facile at first impression, because
emission quotas obviously pertain to both air pollution control and land-use
management, the implications of administering these techniques on the state
level are complex. Whether emission quotas are characterized as land-use
controls or air pollution controls determines to a great extent the states'
ability to administer and implement them.
If emission quotas are characterized as air pollution controls, they
probably would be administered by the state agency given primary responsi-
bility to control air pollution. Implementation of the emission quota stra-
tegies would then be guided by the procedures and authority established by
the air pollution control enabling legislation and the administrative regu-
lations adopted by the state air pollution control agency.
Emission quota strategies, principally emission density zoning, may
also be considered as land-use controls. In this case, principal administra-
tive responsibility and regulatory authority to implement emission quotas may
rest with the state agency responsible for state land-use control and manage-
ment. Implementation would then be governed by the administrative procedures
and legal guidelines contained within state land-use legislation. Emission
quotas under the Clean Air Act and the constitutional issues that such tech-
niques raise when perceived as land-use controls were discussed in Chapters
2 and 3.
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Finally, emission quota strategies can be approached as a combination
of air pollution and land-use control techniques, which, in essence, they
are. Under this perspective, some state agency is principally responsible
for administering and implementing these techniques; such implementation
must, by necessity, involve coordination with other functional areas of state
authority. States commonly create special-function agencies on the state
level, and because the jurisdiction of such agencies is defined by their
particular functions, coordination of techniques which fall under common
jurisdiction becomes imperative.
From this last perspective, Section 4.2.3 examines how coordination
can be achieved among state agencies given specific regulatory jurisdiction,
using environmental policy legislation and other mechanisms. This discus-
sion assumes that either a land-use control or air pollution control agency
is given regulatory jurisdiction to use emission quotas, and the problem
becomes one of assuring that program objectives under each agency's grant of
jurisdiction are met through the use of emission quota techniques.
A.2.1 Emission Quota Strategies as State Air Pollution Controls
State legislation often gives one state agency, generally an air pol-
lution control agency in a state board of health or department of environ-
mental management, primary jurisdiction over air pollution control. The
state air pollution control agency can exercise this authority directly,
by issuing permits to persons wishing to undertake a development activity
likely to affect air quality within the state, or indirectly, by decentra-
lizing air quality planning and permits to substate agencies authorized to
control air pollution within specific geographic areas (often defined by
political boundaries, but occasionally consisting of an entire airshed shar-
ing common problems of pollution).
State air pollution control agencies are generally given responsi-
bility for four areas of activity by the state air pollution control enabling
legislation. These are (1) monitoring air quality within the state or sub-
state jurisdictions created by the state legislation, (2) issuing permits for
development activities presumed to affect air quality within the state or
substate jurisdictions, (3) enforcing state air pollution standards and per-
mits issued to achieve those standards, and (4) administering the state air
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pollution control program, including the creation of state administrative
procedures, regulations, and pollution standards to achieve the purposes of
the state legislation. Each of these activities affects state options to
consider emission quota techniques, and is therefore discussed in greater
detail below.
Although state air pollution agencies may have jurisdiction over all
sources of emissions, the state air pollution control program is centered
around its permit authority. State permit programs involve the ability to
enforce permit conditions and to prosecute violators of state emission stan-
dards and regulations promoted by such permits. The permit process is essen-
tially passive; state authority is not exercised until an application is
submitted. Generally, these permit applications are made by individuals pro-
posing a development activity that the state presumes will affect air quality.
State presumptions of air quality impact are very important, because the types
of activities likely to meet this presumption are frequently listed within
the state enabling legislation creating the air pollution control program, as
well as within the agency's own administrative regulations. The legislation
may specify that only certain commercial, industrial, or residential develop-
ments are presumed to affect air quality and require air pollution control
permits. Such activities also can include the installation of air pollution
abatement equipment, as well as the construction of equipment likely to
create new pollution sources. But the definitions of activities presumed to
affect air quality and which require air pollution control permits also often
involve exclusions to state regulatory authority. Single-family dwellings,
or small mutifamily dwellings, may occasionally be excluded from the require-
ment of a state air pollution control permit. The exclusions are largely for
the sake of administrative convenience and recognize the limited resources of
the agency that reviews and approves permit applications.
Permit applications may be received directly from an applicant or from
another state agency with different functional responsibilities under separate
Q
enabling legislation. For example, the state air pollution control agency
may receive an air pollution control permit application from a state land-use
control agency, responsible for reviewing certain types of industrial develop-
ment that also qualify as presumed sources of air pollution. The land-use
agency may forward the application to the air pollution control agency, if it
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feels that development may require air pollution control approval in addition
to land-use approvals. Similarly, the air pollution control agency may for-
ward permit applications to other state agencies, if it feels that additional
state approvals are necessary. An example of the latter situation would be
the case where the installation of a smokestack scrubber would require a
state air pollution control permit, and the air pollution agency recognizes
that the use of this device could contaminate ground or surface waters. It
might therefore forward the permit application to a state water quality manage-
ment agency after it has reviewed the air quality considerations.
Permit applications received by the state air pollution control agency
are reviewed according to state statutory standards and procedures estab-
lished under state administrative regulations.9 These standards and proce-
dures are typically adopted to meet federal NAAQSs, and the procedures are
reviewed by the U.S. EPA as part of its approval of a SIP or AQMA program;
in some cases, however, states may adopt standards that are more restrictive
than the federal standards. The permit review process generally includes
at least one meeting with the applicant to discuss the project, its antici-
pated emissions, and how the emissions would affect state air quality stan-
dards. Emphasis is placed on developing manufacturing procedures or using
pollution abatement equipment that will lessen potential emissions from the
proposed source, thus maintaining air quality above the state standards and
federal NAAQSs.
Many states have a "safety valve," incorporated into state statutes
governing air pollution control, that allows construction of facilities or
equipment which will result in violations of state pollution standards if the
application of the state requirements will result in a substantial hardship
for the applicant.10 Pollution control requirements can be lessened or waived
for certain projects where the imposition of state standards would adversely
affect the economic viability of the project. This waiver can be granted
administratively in some states by the agency or by a policy board given dis-
cretionary authority to hear appeals to state decisions regarding air pollu-
tion permits. However, the federal NAAQSs must be maintained.
State permits may be single-stage or multistage. A single-stage
permit is a single approval given by the state air pollution control agency,
allowing development to proceed as proposed on the application. A multistage
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permits process uses two or more permits to assure compliance with state stan-
dards and requirements. For example, the state may issue a permit to in-
stall pollution abatement equipment or machinery likely to cause air pollu-
tion, and then require the issuance of a second permit once the equipment has
been installed, but prior to its use. The second use permit is issued only
if the technical requirements of the first installation permit have been met,
and the use permit is generally valid for only a specified length of time.
Upon its termination, the state will reinspect the facility and issue subse-
quent use permits if it finds that state air pollution standards are not
being violated and will not be violated for the term of the use permit.
The state air pollution control agency is also responsible for en-
forcing the state air pollution standards.12 Violations of emission standards
may be identified during air pollution control permit inspections and from
neighbors and local government officials notifying the agency of a potential
violation. Violations may also be identified by the state agency's ongoing
air quality monitoring program, where a particular air quality monitoring
station may pick up pollutants in excess of anticipated levels, indicating
a violation of emission standards.
Enforcement may be by administrative hearing, legal action, or both.
In some states, Illinois for example, air pollution control officials can
bring violators before an administrative board, where violations are ad-
judicated according to administrative procedures and law. Appeals from
the administrative board decisions are through the courts. In other states,
the state attorney general will bring a legal action against a violator,
requesting injunctive relief or monetary damages under the state pollution
control act. Occasionally, actions may be brought before an administrative
board or a court of law, depending on whether enforcement is instituted by
the state air pollution control agency or the attorney general responding to
a citizen complaint. The penalties for violating the state pollution statutes
are set forth in the statutes themselves, and can include punitive damages
and injunctive relief.
This procedure describes the state air pollution control programs iden-
tified in the state survey, and probably describes the types of state air
pollution control program found in most states. The implications of these
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techniques and administrative processes for state implementation of emis-
sion quota strategies can now be discussed.
One potential limitation to the use of emission quotas in the process
described above lies in the grant of administrative authority to a state air
pollution control agency by state enabling legislation. Although legislation
may give a state agency legal jurisdiction over all sources of air pollution,
such legislation frequently limits agency requirements for preconstruction
review and permitting. More importantly, the state legislation frequently
excludes certain activities from state permit jurisdiction, as well as allow-
ing economic hardship exemptions. The restriction of state permit authority
over a specific range of activities has important consequences for state im-
plementation of emission quotas strategies. If the emission quota is applied
only to those activities requiring a state permit, the regulated activities
may be severely restricted should unregulated activities consume most of the
emission limit quotas for a particular location. This may raise the equal
protection and substantive due process issues discussed in Chapter 3.
There are four ways that states can deal with this issue. One way
would be to expand state permitting authority to include all potential sources
of emissions that could affect an emission quota. This may not be possible
for several reasons. If the state enabling statute specifically excludes
certain activities from state jurisdiction, then these activities cannot be
brought under state authority by administrative regulation; they would require
a specific statutory amendment to bring them within an emission quota program.
Or, the expansion of state administration to include a number of smaller
sources of emissions under emission quota strategies could overload the admini-
strative and fiscal capabilities of many state air pollution control pro-
grams. Such programs may be understaffed and underfunded to fully meet their
present statutory obligations, let alone expanded permit activities under
emission quota approaches. Finally, the expansion of state permit authority
to smaller uses, such as single-family dwellings, can conflict with tradi-
tional delegations of authority to local governments to regulate such uses.
The requirement of state permits for activities usually regulated on the
local levels of government will certainly create political risks for a state
attempting such a process. Although the administrative and political i
raised by this approach are technically not legal issues, they must be
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considered along with such legal issues when contemplating a state-imple-
mented emission quota strategy.
A second way that states can deal with the administrative issue is to
delegate preconstruction permit authority to substate political units for the
administration of emission quota strategies. Such units of government
usually issue permits for a wide variety of development activities; and the
scope of local permit authority would certainly encompass EDZ and other
emission quota jurisdictional requirements. This delegation issue is dis-
cussed in greater detail later in this chapter.
The third approach is to limit the application of the quota to those
sources currently requiring permit review. With this administrative approach
care must be taken when setting the emission quotas to account for emissions
and growth by those sources not subject to the quota and permit review. The
procedures for setting emission quotas presented in the EDZ Guidebook allow
for excluding sources from the quota and account for growth and emissions
from sources not controlled by the quota.
The fourth approach is to implement the emission quota strategy inde-
pendently of the permitting activity. However, the administration of the
quota strategy must avoid the potential pitfalls of overburdening an enforce-
ment agency and creating legal problems through inappropriate treatment of
sources that may be exempt from the quota.
A second possible limitation to state-implemented emission quotas is
the method of establishing state emission standards. Such standards are
frequently mandated by the enabling legislation that created the state air
pollution control agency, although latitude is occasionally given to such
agencies to adopt additional standards by administrative regulation. The
state emission standards are usually phrased in terms of emission per unit
time, and do not establish a unit area criterion for gauging emission limits.
Emission quotas typically would be phrased in terms of emission per unit time
per unit area. If the enabling legislation does not use a unit area factor,
then the legal issue of delegation of authority may arise if the state air
pollution control agency adopts a unit-area emission standard to meet the air
quality standard.
Although state regulatory authority may be broadly construed by a
court, its breadth would be constrained by specific enabling legislation.
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Where a state legislature establishes very specific emission standards with-
in the body of a statute, the specific standards would apply (especially when
a state agency is not authorized to consider additional standards by the
statute). If a state agency were to apply an emission standard, an emission
per unit time per unit area requirement under EDZ, for example, there would
be a certain legal risk. The risk would be that a court may find that the
state air pollution control agency has exceeded its authority by the use of
any standards other than those created by its enabling legislation. Such
regulations may be voided as a violation of delegation of authority, but the
chance of this occurring depends on prior legal precedent within the state
courts and the ability of the state to present evidence showing the relation-
ship of the emission standard to the air quality standard. This issue cannot
be generalized to all states, but it must be recognized as a potential legal
issue in some jurisdictions.
The traditional state-local separation of powers in zoning matters and
the similarity of EDZ and locally-controlled land-use zoning probably make
non-EDZ strategies more politically acceptable for state implementation.
Floating zone emission quotas (FZEQ) can operate within existing state
permit authority. Radii based on technical and policy considerations could
be developed by the state air pollution control agency. Overlapping radii
and keeping track of the quota remaining around a given point in the state
could be handled through alterations of existing source-monitoring procedures.
In fact, FZEQ may currently be implementable by state air pollution agencies
under their existing regulatory authority.
Jurisdictional and district emission quotas (JEQ and DEQ) could operate
under a system of state standards with local or regional agencies handling
administration and enforcement. This could be done if the state regulatory
authority could be delegated to local government (discussed further later in
the chapter). The state and local programs could be meshed together to
improve overall enforcement, especially in those cases where the state permits
large sources and the localities or regional agencies permit smaller ones.
4.2.2 Emission Quota Strategies as State Land Use Controls
Emission quota strategies are intimately involved with land use as
well as air pollution, and can therefore be considered as land-use controls as
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well as air pollution management techniques. In order for states to imple-
ment emission quotas as land-use controls pursuant to state land-use manage-
ment enabling legislation, it is necessary that the state have a land-use
control program in existence or consider establishing such a program.
Most states have no comprehensive state-wide land-use control program
that can be used as a vehicle for implementation of emission quota strategies.
In the majority of states, the authority to zone and regulate private property
has been delegated to local government (or occasionally regional agencies)
under zoning enabling legislation. Land-use control then becomes a tech-
nique for local government and generally not within state jurisdiction or
administered by a state level agency. As a result of this early delegation
to local government, the exercise of land-use control by the state is often
considered controversial and a usurpation of local perogatives, even though
the police power itself resides principally in the state.
A few states, however, do exercise land-use authority over certain
types of activities or certain geographic areas. This power to regulate is
recaptured by the state for those areas or activities which the state legis-
lature feels are inappropriate for local implementation. 6 The inappro-
priateness of local regulation is based on the size (or complexity) of the
projects requiring state review or on the ecological fragility of the area
which may undergo development. State recapture of the police power is rooted
in the concept of state importance and the greater analytical resources
available to state agencies, when compared to the resources (analytical and
administrative) available on the local levels.
State land-use programs can be administered three ways: (1) the state
can establish a program of direct regulation and permit review, similar to a
state's air pollution control program; (2) the state land-use control agency
can establish standards and criteria for projects requiring the application
of such standards, and mandate that local governments regulate under their
own police power authorization, consistent with such state standards and
criteria; or (3) the state can recommend review standards for local govern-
ments considering certain kinds of projects or projects proposed in certain
geographic areas, and allow local governments to regulate according to whether
local government officials wish to apply the state criteria and standards,
creating a discretionary state land-use program.
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Direct state permit approvals and reviews are used by very few states.
Vermont, for example, requires state review and permit approval for any pro-
posal meeting state review criteria. Such review is based on legislative
standards contained within the enabling legislation. This same approach is
followed in Maine.18 In California 9 and New Jersey,20 it applies only to
projects proposed in the coastal zones, as defined by state enabling legis-
lation. Coastal zone legislation exists in one of the sample states sur-
veyed, and deserves greater attention as an example of how air pollution
criteria can be accommodated within a state land-use program.
New Jersey established its Coastal Areas Facility Review Act (CAFRA)
and created a Coastal Areas Facility Review Board responsible for appeals.
Like the state air pollution control program, the CAFRA is administered by
n -i
the state Department of Environmental Protection. Also like the state air
pollution control program, the CAFRA defines "facilities" requiring state
review and permit approval and limits its jurisdiction only to a specific
class of large-scale development projects thought to have a major impact on
9 9
the state's investments, environment, or residents. Unlike the state-wide
pollution control act, the CAFRA limits its jurisdiction only to the non-
urbanized coastline of the state, and not to the state as a whole.23
A person proposing a coastal zone facility requiring CAFRA review
makes an application to the state, and presents information regarding the
proposal.21* The state then considers the information, holds a public hear-
ing, and decides whether to issue a CAFRA permit according to statutory
n f-
criteria and standards. The state CAFRA approval can contain conditions
to be imposed on the development.2 The Act also provides that persons
aggrieved by a CAFRA permit denial (or conditions imposed on an approved
permit) can appeal to the Board, which is not in the Department of Environ-
mental Protection, but consists of the commissioners (or their delegated
representatives) of the Department of Environmental Protection, the Depart-
ment of Labor and Industry, and the Department of Community Affairs.
In reviewing an application for a CAFRA permit, the Department of
Environmental Protection must issue a permit if it finds that certain stan-
dards have been met, as set forth in the Act. These findings include a
determination by the commissioner that the facility: (1) conforms with all
applicable air emission standards and effluent standards and all applicable
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air quality standards; (2) prevents air emissions in excess of the existing
dilution, assimilative, and recovery capacities of the air at the site and
within the surrounding region; and (3) satisfies other criteria related to
environmental quality and the furtherance of the public health, safety and
general welfare.28 The Act also contains a broad criterion whereby a permit
may be denied if it violates the purposes of the Act or if the commissioner
finds "that the proposed facility would materially contribute to an already
serious and unacceptable level of environmental degradation or resource ex-
haustion.. .," and the commissioner may issue conditions on any permit to pro-
tect the public safety and general welfare,2
The state land-use program also contains a requirement for a land-use
plan, containing policies and objectives to be accomplished by the regulatory
program, similar to the plan requirements for zoning by local governments.
Under the CAFRA, the state must create a land-use plan for the coastal zone,
after completing an inventory of coastal resources and limitations to develop-
ment.30 The state must conform to its own policies contained within the plan
in administering permit activities under the Act.
A similar program with a slightly different structure is used in
Florida, where a state plan is implemented by mandated criteria and standards
administered by regional agencies.31 This program differes from the CAFRA. by
the requirement that regional agencies must comply with state administrative
standards and are responsible for both enforcing and administering the state
program. Like the CAFRA, the Florida act creates state and regional juris-
diction only over certain classes of development activity (called develop-
ments of regional impact),32 and over development occuring in environmentally
fragile areas (called areas of critical planning concern).33 The Florida act
is based on model legislation created by the American Law Institute, called
the Model Land Development Code.3"*
State-mandated regional regulation under the Florida approach creates
a situation where appeals of the denial of, or conditions imposed on, state
permit approvals are made to the state, and failing state approval, to the
courts.3 Enforcement of the program, however, is principally by local
governments whose local permits must comply with the regional development
approvals.36 This structure has resulted in many conditions being unenforced
by local government, hindering implementation of the state program. The
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program is hampered by inadequate manpower to monitor and enforce its pro-
visions.37 Like New Jersey's CAFRA program, the regional permit approvals
made pursuant to the state standards include air quality considerations as
well as a range of broader land-use issues.
A state land-use program using discretionary state development stan-
dards arises in Colorado under the Colorado Land-Use Act, which creates the
Colorado Land-Use Commission (CLUC). Under this program, the CLUC estab-
lishes criteria for various types of development activities which, because
of their size or location, fall under the jurisdiction of the Act.39 The
CLUC also establishes standards for such classes of development, which must
be applied to local permit reviews and approvals by substate units of
government already authorized to regulate under standard zoning and sub-
division review enabling legislation. °
The CLUC guidelines are only advisory for the local governments
implementing the Act. A local government's failure to follow the state
guidelines for activities of state interest, or for developments proposed in
areas of state interest, can result in legal action by the state to compel
compliance, but this legal action can only be undertaken with the approval
of the Governor, and only after a local government has refused to remedy the
situation. Therefore, the "mandate" established by the state program is
extremely weak, and becomes more an advisory position creating administrative,
rather than substantive, procedures ."*
Emission quota strategies can generally be considered under these
state land-use programs, but the efficacy with which they could be implemented
will vary from program to program. Air quality considerations are one factor
in state decision-making in all of the state land-use control programs sur-
veyed, and thus jurisdiction to consider emission quotas and other techniques
to abate air pollution is expressly authorized by the state enabling legis-
lation creating these programs.
Implementation of emission quota strategies to control air pollution
would involve many of the same legal issues as were discussed under state
air pollution control administration. For example, the state land-use pro-
grams generally regulate certain classes of activity, and although these
classes can be controlled by the permit review, there would be no state
jurisdiction over other uses which could raise emissions above the emission
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quota. Second, unlike administration by a state air pollution control
agency, the implementation of emission quota techniques by a state land-use
agency might be restricted only to certain geographic areas of the state
under programs involving direct state permits or mandated local permits under
state development standards. New Jersey's CAFRA program, for example, would
only regulate emissions within the designated coastal zone as defined by the
Act, and would not give the state land-use agency jurisdiction over inland
sources of emissions.
The legal issue involving the application of state standards for air
pollution control is slightly different in a land-use context than in an air
pollution control context. Generally, state land-use control agencies may
have more flexibility than state air pollution control agencies to consider
air quality standards other than.those adopted in the SIP in order to meet
Clean Air Act standards. Although the state land-use review criteria are
based on adopted state air quality standards (which themselves are based on
the NAAQS contained in the Clean Air Act, in many cases), the state land-use
considerations involving air quality components in the regulatory process
may be broader than the state air pollution control program's review cri-
teria. Although the NAAQSs contained in the federal Clean Air Act can be
considered minimum standards that must be met by the state in order to
achieve an acceptable SIP, and states may have the authority to adopt more
stringent standards, this authority is usually explicitly given in much of
the state land-use legislation. State land-use control programs operate
under different grant of authority from state legislatures than do state
air pollution control programs, and there may be more flexibility for a state
land-use program to consider innovative techniques of air pollution control,
such as EDZ and other emission quota strategies. However, if the emission
quota is necessary to meet or maintain federal NAAQSs, use of the emission
quota as a land-use control (that is, not as part of the SIP) may result in
the SIP not being approved by the U.S. EPA.
Consideration of'EDZ within a land-use program, operating under a
different grant of police power legislation than a state air pollution con-
trol program, may even circumvent some of the legal issues raised in Chapter
2, where such controls were analyzed under the CAA provisions and mandates.
For example, review criteria under CAFRA authorize the state to consider
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the effect of dilution of emissions as part of its land-use decision making
authority, and this criterion may be impermissible under a state air pollu-
tion control program as a result of the federal nondegradation policies as
interpreted in the "smokestack" cases, discussed earlier.
Another legal issue that arises as a result of state EDZ implementation
under land-use control authority lies in the interrelationship between land
use and air quality planning. Most state land-use control program require a
comprehensive development plan, and such plans often contain air quality ob-
jectives. lf2 It is unknown whether such land-use plans are submitted to the
U.S. Environmental Protection Agency as part of an SIP. State land-use plans
tend to be integrated and organized documents, while the SIP required under
the CAA tends to be a collection of authorizations, statutory programs, and
standards that evidence compliance with federal objectives and standards.1*
Because air quality components of state land-use plans are implemented by the
state land-use agency, it is possible that such land-use plans specifically
contain provisions of the SIPs required under the CAA. Therefore, a project
requiring both land-use agency and air pollution control agency approvals may
fall under different standards within the individual plans, raising a sub-
stantive due process and equal protection issue. This issue was discussed in
greater detail in Chapter 3, but must be recognized here as a result of plan-
ning fragmentation between the various single-function agencies exercising
control on the state level.
The FZEQ, DEQ, and JEQ strategies may prove easier to administer on
the state level than EDZ, depending on the type of state land-use control
process in effect. State land control programs that reserve direct permit
review to a specific state agency would face issues similar to those raised
with respect to centralized state air pollution control administration. State
land-use programs relying on state mandates to substate jurisdictions appear
to establish an optimum administrative structure for DEQ and JEQ strategies.
State programs, such as Colorado's, which are only advisory seem to offer
less potential for these types of techniques. The mandatory aspects of local
implementation of state land-use control standards can easily serve as the
vehicle for imposing state air quality standards on local governments, via the
DEQ or JEQ approaches. The issues that would be rasied by this type of man-
datory program would be largely constitutional, as explored in Chapter 3,
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and not ones of delegation of authority, as examined in Section 4.3. Mandatory
state land-use programs involving substate implementation explicitly establish
a clear delegation of authority and leave little doubt as to the actions ex-
pected from local governments subject to such a mandate.
4.2.3 State Coordination of Emission Quota Strategies
As discussed in Sections 4.2.1 and 4.2.2, emission quota strategies
can be considered both land-use and air quality controls, and can be imple-
mented by state land-use and air pollution control agencies. Because land-
use control programs use development standards based on state air pollution
control standards, and a state air pollution control program must consider
state land-use objectives when implementing an emission quota strategy, it
becomes necessary to consider mechanisms for coordinating decision-making
among the two functional areas of state regulation.
Air pollution control and land-use management objectives based on an
emission quota approach can be reconciled through (1) a requirement within
the enabling legislation of either program that state decision-making accom-
modate the objectives of the other program, (2) specific legislation man-
dating coordination among different state regulatory agencies, and (3) single-
purpose regulatory programs accommodating the functional responsibilities of
both air pollution control and land-use management.
The New Jersey CAFRA program is an exmple of a program that is legis-
latively mandated to consider functional standards of another state agency.
The CAFRA explicitly establishes the state air quality standards as review
criteria for the state land-use control program. Although the Act allows the
state coastal facilities review section of the Department of Environmental
Protection to consider other standards in addition to the state air quality
standards if deemed appropriate to a particular development proposal, the
state air quality standards are the essential minimum standards that must be
met by the state coastal agency in reaching its land-use decisions regarding
CAFRA permits. This functional coordination may be a result of the state's
effort to comply with the Coastal Zone Management Act of 1972, in* order to
develop a coastal management program that will be eligible for further fund-
ing by the National Oceanic and Atmospheric Administration.'*'* The Coastal
Zone Management Act requires that state coastal zone management programs
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seeking funding incorporate requirements of the Clean Air Act."*5 The coor-
dination within the CAFRA may be a result of this federal mandate.
Coordination among various functional areas of state regulation con-
sidering emission quotas may also be by special integrative legislation, pre-
dominantly state environmental policy acts. State environmental policy acts
(SEPAs), modeled after the National Environmental Policy Act (NEPA), require
the creation and circulation of an environmental impact statement (EIS) by
any state agency proposing an action that will have a significant effect on
the natural environment. An EIS must describe the proposed activity, discuss
its impact on the environment, and examine alternatives to the action that
can be considered (along with environmental impacts of each alternative con-
sidered in the EIS). The EIS is circulated for comment to other state agen-
cies, which review the proposed action and suggest ways in which negative im-
pacts can be ameliorated.
An EIS requirement under a SEPA is not technically a regulatory program.
A state agency can implement an activity that will have a significant impact
on the environment, provided that alternatives have been considered, impacts
assessed, and the EIS circulated for comment according to the administrative
procedures established under the state legislation. Because of the circula-
tion and comment requirements, the effects of such programs are largely infor-
mational and coordinative. SEPAs are essentially disclosure programs, and
the disclosure of proposed actions to other state agencies can operate as an
implicit coordinative mechanism.
Among the states surveyed, both Minnesota b and New Jersey^ have SEPAs.
Because of the prevalence of these types of acts as state disclosure mecha-
nisms, a closer examination of Minnesota's program is warranted, as an example
of how these programs would affect emission quota strategies.
Minnesota is one of 18 states using SEPA legislation to require the
preparation and circulation of EISs. The requirements of the Minnesota legis-
lation are administered by the Minnesota Environmental Quality Council ("the
Council"). The requirements are patterned after those of NEPA,48 and are set
forth below:
Subdivision 1. Where there is potential for significant en-
vironmental effects resulting from any major governmental
action or from any major private action of more than local
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significance, such action shall be preceded by a detailed
statement prepared by the responsible agency or, where
no governmental permit is required, by the responsible
person, on:
(a) The environmental impact of the proposed action,
including any pollution, impairment, or destruction of the
air, water, land, or other natural resources located within
the state;
(b) Any direct or indirect adverse environmental,
economic, and employment effects that cannot be avoided
should the proposal be implemented;
(c) Alternatives to the proposed action;
(d) The relationship between local short term uses of
the environment and the maintenance and enhancement of long
term productivity, including the environmental impact of
predictable increased future development of an area because
of the existence of a proposal, if approved;
(e) Any irreversible and irretrievable commitments of
resources which would be involved in the proposed action
should it be implemented;
(f) The impact on state government of any federal con-
trols associated with proposed actions; and
(g) The multistate responsibilities associated with
proposed actions.
The Act then goes on to state that officials responsible for issuing
permits for natural resource management and development are to give due con-
sideration to the possible environmental effects, even though the Council does
not require an EIS for that permit.49 The provisions of the Act also set
notice requirements, recite state declarations of environmental policy, out-
line how costs are apportioned for the preparation of an EIS, and require the
Governor to submit to the legislature an annual environmental quality report,
similar to the annual report that Congress requires of the federal Council on
Environmental Quality.50 The Minnesota statute is one of the strongest in
the nation in that it provides for an administrative agency with powers to
promulgate rules and regulations, convene public hearings, and require the
redrafting of inadequate EISs.
Although it seems that the Council could, without question, require
the preparation of an EIS if a state agency should consider an emission quota
strategy, Council rules may modify this certainty somewhat, leaving it a
discretionary rather than a mandatory decision. If an EIS is required for
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permits that would result in significant air pollution, it is unclear whether
such a requirement would be imposed on an activity, such as the implementation
of an emission quota strategy, whose effects are beneficial rather than
detrimental to the environment. It appears that the Council could request a
statement describing the expected benefits to be gained by the use of a new
air pollution control strategy; however the rules of the Council are aimed at
precluding or minimizing effects resulting from activities that are known to
be environmentally harmful rather than beneficial. The Council may have the
authority to exclude beneficial activities, such as the imposition of emis-
sion quota strategies to control air pollution, under its own rules, pre-
cluding the preparation of an environmental assessment worksheet or EIS.
Thus, if the Council should decide on such an exclusion, coordination between
the various state agencies considering emission quotas would not be affected
by the SEPA mandate.
The final coordinative mechanism affecting emission quota strategies
is the use of special-purpose land-use management programs that incorporate
air quality considerations as part of the permit process. An example of
such legislation would be the power plant siting statutes in effect in a
number of states, where a proposed electrical generating plant would be com-
prehensively reviewed by a special state agency (or by an agency already given
air pollution control or land-use control authority under existing legisla-
tion) . This type of legislation is focused on an emission source, rather
than on a range of development activities, and can be considered as a spe-
cial type of land-use control on the state level. This type of legislation
exists in Minnesota and in New Jersey's CAFRA (a description of the Minne-
sota program is given in Appendix B).
As a result of its focus on a particular source of emissions, the
power plant siting legislation appears especially appropriate for the FZEQ
strategies. The power plant stack heights and anticipated emission levels
can provide a basis for computing future emission levels and a comparison
with computer-generated emission limits within a designated "zone" around the
proposed facility. The FZEQ technique is particularly appropriate when the
state is dealing with a single known source of emissions, such as a power plant.
Because power plant operators may be required to conduct detailed air
quality analyses prior to construction, it may be appropriate to exclude
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power plants from an emission quota regulation. In this case, care must be
taken to account for expected power plant emissions when estimating the quota
for other sources. Otherwise the quota may have to be updated whenever a
power plant is sited and may suffer from due process or equal protection
problems similar to those that could arise if the quota strategy is impro-
perly coordinated with permitting activities.
4.3 SUBSTATE IMPLEMENTATION OF EMISSION QUOTA STRATEGIES
Emission quota strategies can be implemented by substate jurisdic-
tions—regional agencies and local governments—as well as by states. How-
ever, substate governments derive their authority to control private property
(and emissions arising from the use of such property) from the state. This
regulatory authority under the police power must be specifically delegated
to substate governments. There are two legal mechanisms for doing this: by
special state enabling legislation for a functional area of land-use control,
or by general grants of authority for communities to consider regulations
applicable to meeting local issues, under constitutional provision or general
enabling legislation. This last delegation is known as "home rule," and
represents a broad, rather than a narrow, grant of police power to certain
classes or communities, pursuant to the adoption of a charter by the local
government. The legal issues raised by both with respect to emission quota
strategies are discussed below.
4.3.1 Home Rule and Emission Quota Strategies
Specific enabling legislation has been supplemented by home rule pro-
visions in at least 34 states.53 Home rule typically allows communities with
certain characteristics to handle strictly local matters—e.g., fire and
police protection—but specifically not those activities that will have an
influence beyond the borders of the community. Home rule is a legal mecha-
nism for dividing regulatory authority among the various levels of govern-
ment,54 and should not be confused with popular interpretations of this
authority as a political device giving supremacy to local governments, al-
though this authority has been construed in some states to be broader than
the authority provided by enabling legislation.5
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Home rule only applies to specific classes of communities, e.g., first
class cities or townships. Therefore, regional agencies, for example, would
not be authorized under home rule to exercise regulatory authority, although
a city or town within a substate region may exercise authority under this
grant of authority. Typically, communities exercising authority under home
rule must do so pursuant to a municipal charter, which acts as a "mini-con-
stitution" to constrain the exercise of such authority.
Emission quota strategies raise certain legal issues if exercised under
home rule provisions, instead of under specific enabling legislation dealing
with air quality management or land-use control. First, air pollution is
recognized in the CAA as a responsibility of the states and an issue of na-
tional concern. Because of these aspects of national interest and concern,
it seems unlikely that a community can characterize emission quotas and air
pollution control as matters solely of "local concern." Air pollution is
clearly not constrained by political boundaries—an aspect of pollution con-
trol that seems to mitigate against an approach rooted in home rule authority.
Second, some courts have narrowly interpreted the exercise of home
rule authority to preclude activities by local governments that are already
authorized by specific enabling legislation. In some states, where enabling
legislation exists which authorizes the use of land-use or air pollution con-
trol techniques broad enough to include emission quota strategies, courts may
consider these specific legislative authorizations to rule municipal actions,
and not the broad grants of authority conferred by home rule provisions.
These two issues suggest that emission quotas might best be implemented
by specific enabling legislation, rather than by broad home rule authorities.
The implications of enabling legislation authority to use these air pollution
and land-use control techniques are discussed below.
4.3.2 State Enabling Legislation and Emission Quota Strategies
Like the state, a local government can implement emission quotas
through state enabling legislation. Two types of enabling legislation appear
appropriate to authorize local and regional agencies to use emission quota
strategies—land-use enabling legislation, and provisions in state air pollu-
tion control acts allowing the delegation of air pollution control authority
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to substate units of government by the state agency primarily responsible for
administering the state air pollution control act.
State land-use enabling legislation would certainly be broad enough to
allow local governments to consider emission quotas. All states have adopted
a variant of the Standard State Zoning Enabling Act, which gives the police
power to regulate land-uses to local governments under zoning.56 This grant
of authority explicitly states that communities may zone for the "purpose of
promoting health, safety, morals, or the general welfare of the community."
Air quality considerations are therefore within the area of local interest in
furthering the public health. Generally, in using zoning, a community's regu
lations must further the public interest in a reasonable way (i.e., not be
arbitrary or capricious) , and not result in an undue restriction on the uses
of zoned property. These issues are resolved on a case-by-case basis and
were discussed extensively in Chapter 3.
Except in rare circumstances, regional agencies and councils of
government are not given regulatory authority by state land-use enabling
legislation. The principal purpose of such authorities is to coordinate
functional planning among the local governments in the region and provide
c p
technical assistance to these local governments. Regional agencies may
also undertake certain federally mandated tasks, such as review of federal
grant proposals under the review process created by Circular A-95 of the
federal Office of Management and Budget for actions affecting the region.
There are exceptions to this general trend, however. Florida's Land
and Water Management Act of 1972 creates a strong role for regional agencies
as part of the state land-use management program, and California's Coastal
Management Act divides the coastline of the state into regions with regula-
tory authority. State law may also create special-function regional regula-
f- Q.
tory authorities, such as New Jersey's Hackensack-Meadowland Commission,
California and Nevada's Tahoe Regional Commission, ° and New York's Adiron-
dack Park Agency,6 all authorized to function as both regional agencies and
regulatory commissions. These may be considered more as state agencies with
substate jurisdiction than regional agencies exercising independent regula-
tory authority, however.
The use of emission quota strategies by local and regional agencies as
part of a land-use control program authorized by state zoning enabling
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legislation raises an important nonconsitutional legal issue. Generally,
there is little coordination between local and state air quality objectives
and planning.62 Local governments, for the most part, exercise their zoning
authority autonomously and generally regulate according to local needs and
desires, as expressed in local development plans. Because air pollution may
be an area-wide problem, there is the possibility that a local air pollution
strategy using emission quotas may not be coordinated with neighboring com-
munities, and therefore have little effect on the total air pollution of the
airshed or district in which the community lies.
Coordination is supposedly under the authority of the regional agen-
cies, but such agencies typically lack sufficient authority to provide more
than advisory services to local governments. Therefore, one may anticipate
only limited coordination arising from regional development plans, because of
a lack of mandate inherent in such planning. Coordination may also be
assisted by those few state programs that require planning consistency, but
state plan criteria often are so general so as not to provide the specific
standards necessary to coordinate emission limits for neighboring communi-
ties.6*
State air pollution control laws also typically contain provisions
allowing the state agency given principal responsibility under the law to
delegate its regulatory authority to local and regional agencies. 5 Dele-
gation of authority under state air pollution control acts may be more appro-
priate for emission quota implementation than delegation under a land-use
enabling statute directed specifically to local levels of government. Also
under state air pollution control delegations, regional agencies are typically
given a stronger role in air quality management than under the land-use
enabling legislation.
State air pollution control laws allow the state to approve local air
quality management programs and delegate state regulatory authority to sub-
state levels of government. There is an implicit mandate in such a delega-
tion, provided that coordination exists between state and substate air pollu-
tion control programs. If a local program is not being implemented according
to state standards, then the state may technically revoke its approval of the
local program and preempt local regulations in air quality control.
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An applicant for a proposed emission source in a jurisdiction with an
inadequate and preempted local air pollution control program may be required
to meet the standards of the local air pollution control ordinance review as
well as the requirements of a pre-construction permit under state standards
and review procedures. This situation arises where a community bases its air
pollution control program on authority contained within broad enabling legis-
lation (such as zoning authority) but still wishes to have such a program
authorized under a state air pollution control act provision. The revocation
of the local program does not remove local authority to regulate, because the
authority would flow from a different statutory source than the air pollution
control act. Inconsistent standards on the state and local levels can raise
constitutional violations of substantive due process, leaving the local pro-
gram open to legal challenge.
A state-approved program under an air pollution act provision may also
raise legal issues involving state jurisdiction to approve such a local pro-
gram. For example, EDZ or another emission quota strategy can be considered a
land-use control and not an air pollution control under state air pollution
control legislation, thus leaving the state air pollution control agency in a
position of approving a set of regulations (i.e., land-use regulations) which
it has no authority to consider under its own enabling legislation. Land-use
enabling legislation may raise certain state review considerations (such as
approval by a state's attorney general)67 and an approval required by a state
air pollution control agency may be in conflict with established review pro-
cedures under the land-use enabling act. An interview with an air pollution
control official in New Jersey, for example, raised the issue that the state
air pollution control agency might not approve, or feel that it has the
authority to approve, an EDZ or other emission quota technique because it
only has authority to consider air pollution control techniques and not land-
use control techniques.
Finally, an issue similar to the one raised with respect to land-use
controls may also appear with any of the emission quota approaches—a lack
of coordination between state and substate implementation and planning. The
correction of this deficiency may require establishment of new review and
delegation procedures among the various levels of government in order to
accommodate the close coordination that an emission quota strategy would
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require, especially a FZEQ or DEQ technique that could be applicable across
municipal boundaries.
4.4 FOOTNOTES
1. See the extensive discussion of these issues in Appendix A, -infra.
2. 42 U.S.C. §7413 (1977 Supp.)
3. N. Williams. 1 American Land Planning Law §7.02 (Callaghan & Co.,
Chicago. 1974). Hereinafter cited as Land Planning Law.
4. 42 U.S.C. §7401(a)(3).
5. See e.g., Colo. Rev. Stat. §25-7-102.
6. Hagevik, Mandelker, Brail. Air Quality Management and Land-Use Plan-
ning. (Praeger, NY. 1974). pp. 10-17.
7. Colo. Rev. Stat. §25-7-112; N.J. Rev. Stat. title 26 §9.2(a).
8. According to interviews with air pollution control officials in the
sample states, most interagency coordination involving air pollution
control permits is informal and not mandated by specific statutory
provisions of the state air pollution control acts.
9. E.g., 111. Ann. Stat. 1939(a) (Smith-Kurd).
10. Colo. Rev. Stat. §25-7-115(2).
11. N.J. Stat. Ann. title 26 §8; PA. Cons. Stat. title 35 §4006.1.
12. Id. 14.
13. 111. Ann. Stat. §1039.
14. 111. Air Pollution Control Rules and Regulations. Rule 203(e)(5) and
Rule 204(e). These already establish procedures for implementing a
variant of an FZEQ strategy. The radius established for the zone is a
one-mile radius from the center of such source(s). The rules apply to
fuel combustion sources and sulfur oxide standards under the Act. In
addition, the quota only applies to facilities owned by a single indi-
vidual or firm within the one-mile radius.
15. The basic enabling legislation adopted by most states at one time or
another is the U.S. Department of Commerce, A Standard State Zoning
Enabling Act (1926).
16. See, David Hoeh. An Intvoduati-on to a Flow-Through System of Land-Use
Controls. Unpublished paper presented at AIP National Conference.
Denver, CO, Oct. 27-30, 1974.
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17. Vt. Stat. Ann. title 10, § 6001-91 (1973), as amended (Supp. 1975); dis-
cussed in Mandelker, Environmental and Land-Use Controls Legislation
(Bobbs-Merrill, 1976). pp. 323-392. Hereinafter cited as Land-Use
Controls.
18. Me. Rev. Stat. title 38 § 481-489 (1973).
19. Cal. Public Resources Code § 2700 et seq. (West).
20. N.J. Stat. Ann. title 13 § 19-1 et seq* (1973).
21. Id. § 13:19-3.
22. Id.
23. Id. § 13:19-4.
24. Id. § 13:19-5.
25. Id. § 13:19-10.
26. Id. § 13:19-11
27. Id. § 13:19-13
28. Id. § 13:10-10(a) and (b).
29. Id. § 13:19-11
30. Id. § 13:19-16
31. Fla. Stat. ch. 380, The Florida Land and Water Management Act of 1972.
See, also, Land Planning Law 160.15.
32. Id. § 380.06
33. Id. § 380.05
34. American Law Institute. A Model Land Development Code (1976).
35. Fla. Stat. § 380.06.
36. Id.
37. Stepanchak. The DRI Process: A Study of Local Government Response in
Broward County. (FIU/FAU Joint Center for Environmental and Urban Prob-
lems, Ft. Lauderdale. March, 1976).
38. Colo. Rev. Stat. title 34 § 70-101 et seq. See3 also, Land Use Controls,
pp. 117-122.
39. Id. title 24 § 65.1-102.
40. Id.
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41. Op cit.3 Land-Use Controls, p. 122.
42. Land-Use Controls, Ch. VI.
43. Id.
44, Land-Use Controls, Ch. VI.
45. Id. p. 252-54.
46. N.J. Stat. Ann. title 27:23-23.3 et seq; N.J. Executive Order No. 53.
47. Minn. Stat. Ann. 166D.04 (1977).
48. 42 U.S.C. § 4321 et seq. (1970). The Supreme Court of Minnesota has
adopted a test for adequacy of environmental impact statements that con-
forms with the stringent tests used by federal courts in reviewing im-
pact statements prepared under NEPA.
The purpose of all environmental legislation, at both state and
federal levels, is to force agencies to make their own impartial
evaluation of environmental considerations before reaching their
decision. The agency's role in the preparation of an EIS is not
to serve as an arbiter between two opposing parties, as a judge
is to do in an adversary process. Instead, it is expected to be
a source of independent expertise whose scientific investigation
can uncover the data necessary to make an informed environmental
decision. No Power Line v. Minnesota Environmental Quality Coun-
cil, 262 N.W. 2d 312 at 327 (1977).
49. Minn. Stat. Ann. § 166D.04, para. 2.
50. Id. para. 7.
51. Baram, Michael S. Environmental Law and. the Siting of Facilities.
(Ballinger, Cambridge, Mass.) 1976.
52. N.J. Stat. Ann. title 13 § 19-11.
53. E. Strauss & J. Kusler, Statutory Land-Use Control Enabling Authority
in the 50 States (1977).
54. T. Sandalow. The Limits of Municipal Power Under Home Rule: A Role for
the Courts., 48 Minn. L. Rev. 643 (1964).
55. R. Anderson. American Law of Zoning, § 2.16 (2d ed. 1968); D. Mandelker
and D. Netsch, State and Local Government in the Federal System, pp.
186-188 (1977).
56. 1 Land Planning Law § 1801 (1974).
57. Id.
58. E.g., 111. Ann. Stat. Ch. 85 § 1101 et seq. § dl!52 et seq.
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59. 5 Land Planning Law § 160.10.
60. Id.
61. Id.
62. U.S. Environmental Protection Agency. Interagency Cooperation in Com-
prehensive Urban Planning and Air Quality Maintenance. (U.S. EPA,
Washington. 1974) EPA-450/3-74-027.
63. Council of State Governments. 1 Land-Use Policy and Program Analysis:
Intergovernmental Relations in State Land-Use Planning. (CSG, Lexing-
ton, KY. 1974).
64. D. Mandelker and L. Susskind. Debate: Should Local Planning be
Mandatory? 44 Planning 14-22 (July, 1978).
65. See, e.g., 111. State. Ann. § 1046; Colo. Rev. Stat. § 25-7-125.
66. This issue already has been adjudicated by the Appellate Court of
Illinois [intermediate court] in Village of Union n. Southern California
Chemical Co., 375 N.E. 2d 489 (1978). The court found that local air
pollution control regulations within the village's zoning ordinance were
preempted by state air quality standards, contained within the Illinois
Environmental Protection Act of 1970.
67. As is the case with zoning under Massachusetts' zoning enabling act
Mass. Gen. Laws ch. 40A.
68. See Note 62, supra.
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5 CONCLUSIONS
5.1 THE CLEAN AIR ACT AND EMISSION QUOTA STRATEGIES
The national clean air legislation enacted in 1970 provided a rela-
tively simple and clearcut statutory basis for the use of emission quotas.
State implementation plan and pollution source control requirements were
generally stated, and the U.S. EPA's unrestricted authority to mandate land-
use controls provided a statutory basis for including emission quotas in
state plans.
This relatively uncomplicated statutory framework for air pollution
control has been considerably changed by the 1977 amendments, with the result
that the statutory basis for emission quotas is no longer clear. EPA's
authority to require land-use controls in state implementation plans has been
withdrawn. Emission quotas may possibly be required for state implementation
plans as a method for carrying out the preconstruction review of new sources
of pollution, and the states remain free to adopt emission quotas voluntarily
as part of their implementation plan strategy.
Detailed statutory implementation plan requirements have been provided
for nonattainment areas and for areas in which the prevention of significant
deterioration provisions apply. These requirements do not foreclose the
adoption of emission quotas in state implementation plans, but statutory pro-
visions for attainment of the National Ambient Air Quality Standards and for
preconstruction source review create complications for the use of emission
quotas in these areas. One problem is that emission quotas may have to be
revised over time to comply with statutory requirements. By way of contrast,
little in the way of specific statutory guidance is provided for the Air
Quality Maintenance Plans that are required for Air Quality Maintenance Areas.
In these areas, EPA regulations appear to allow the adoption of an emission
quota as a method of maintaining the national air quality standards, but
emission quotas are not explicitly required.
Careful attention will have to be given to the statutory requirements
if emission quotas are to be useful as an air pollution control strategy.
This review of the statute also suggests that the emission quota can be most
easily adapted as a measure for maintaining air quality standards in those
areas in which air quality maintenance planning is necessary.
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A major legal issue involving federal policy under the Clean Air Act
arises if emission quota strategies are considered pollution dispersion tech-
niques, rather than pollution abatement strategies. The nondegradation policy
of the Act has been affirmed in several circuits, and the application of emis-
sion quotas may conflict with this policy determination by the courts. If
this conflict arises, then the use of emission quota strategies may be con-
strained by the courts as being contrary to the Act.
5.2 CONSTITUTIONAL ISSUES OF EMISSION QUOTA STRATEGIES
The implementation of air quality control programs to achieve National
Ambient Air Quality Standards has important effects on urban growth and de-
velopment patterns. Not the least of these is the impact that compliance
with the national standards will have on new sources of industrial pollutants.
EDZ is attractive because it converts the air quality requirements of the
national standards into an emission control linked directly with land use.
It thus provides a bridge between the controls over new sources of pollution
that are traditional in air pollution control programs and the conventional
zoning controls that are used to determine the location of industrial uses.
This report has considered the constitutional problems likely to be
presented by EDZ and, more generally, emission quotas. These problems arise
because emission quotas may impose a limit on development. Due process
problems may then arise if industrial development is prohibited under the
quota on a site on which that development would be allowable under the zoning
ordinance. If no other development can reasonably be allowed on the site, a
confiscation of land amounting to a taking in violation of the due process
clause will have occurred. Equal protection problems arise from the manner
in which the emission quota is administered. Development may or may not be
allowed under the quota depending on the time at which approval is requested.
Time-based allocations of the right to develop land may violate equal pro-
tection if time cannot be accepted as a fair basis on which development
rights can be determined.
At least until recently, conventional zoning and land-use controls did
not present quota problems. All land made available under a zoning ordinance
for industrial use could be used for that purpose, and earlier approvals for
industrial development did not foreclose approval of later industrial projects.
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Recent decisions examining the constitutionality of local growth managen int
programs, and the constitutionality of restrictive land-use controls adopted
to achieve environmental objectives, have now provided some insight on how
courts would view development quotas imposed under emission quota strategies.
Judicial support is available for the constitutionality of emission
quota limitations on industrial use at least for the emission quota strate-
gies that also depend on governmental allocation of development opportunities.
Problems will arise as the quota runs out, at which time a prohibition on
land use under the quota may present due process taking problems. These prob-
lems can be serious, but it should be remembered that they have an end-of-the-
line quality. Careful correlation of the quota with local zoning can avoid
due process objections in many instances. When these objections cannot be
avoided, a program of compensation to the restricted landowner will avoid
constitutional threats to the administration of the quota. Occasions for
providing compensation will most likely be limited. Compensation to re-
stricted landowners can thus provide a helpful backup to the administration
of emission quotas which, in the usual case, will not provide due process
obj ections.
Other problems are presented by emission density zoning, which may
require land assembly by the affected industrial developer in order to comply
with the quota if emissions cannot be reduced. If land assembly requirements
are excessive, or if the land assembly needed to satisfy the quota is not
possible, due process objections may be sustained. Once more, these objec-
tions may arise only in extreme cases. Developers who cannot comply with
emission density zoning in highly developed industrial areas can seek sites
in less developed areas in which the land assembly necessary to comply with
the quota will be less difficult, or can install pollution-control equipment
to reduce emissions. These strategies may lead to a dispersal of industrial
development or the installation of additional pollution-abatement equipment.
in order to achieve air quality goals. Careful planning that takes air
quality factors into account may also be able to avoid a dispersed industrial
development pattern that may conflict with comprehensive planning goals.
Emission quotas are simply one example of a land-use control that im-
poses heightened restrictions on the use of land to achieve environmental
objectives. Like other land-use controls with similar objectives, the
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emission quota raises new and vexing constitutional problems. The developing
law in the land-use controls does not yet provide all of the answers to these
problems, but it does suggest that careful implementation of an emission quota
strategy can escape constitutional challenge except in the extreme cases.
5.3 STATE IMPLEMENTATION OF EMISSION QUOTA STRATEGIES
Emission quotas can be implemented either as a state air pollution con-
trol technique or as part of a state land-use management program. State air
pollution control programs are authorized by state enabling legislation and
are the principal responsibility of the states under the regulatory framework
established by the federal Clean Air Act. Direct implementation of emission
quotas as a state air pollution control technique may favor non-EDZ emission
quota strategies. Delegation of police power authority to substate political
jurisdictions allows sufficient flexibility to regional and local governments
to accommodate smaller emission sources within their own regulatory juris-
diction, as well as allowing such units of government to adopt and implement
standards that may be more stringent than those set forth for the state by the
enabling legislation.
Similar issues arise when EDZ is implemented as part of a state land-
use management program. Although the authority granted by state land-use
planning and management programs is generally broad enough to allow a state
land-use control agency to exercise jurisdiction over an EDZ strategy, the
use of this approach is limited by the small number of states retaining
direct regulatory jurisdiction over land-use issues. In a majority of states,
the police power grant of authority to regulate and zone private property is
delegated to local governments. However, in those states with special-pur-
pose land-use management programs (whether statewide, or restricted to a
specific area, such as a coastal zone), EDZ and other emission quota strate-
gies would be permissible. The major issues which arise in this situation are
those regarding the state air pollution control program approach—i.e., the
limited permit authority of such agencies and the basic reliance on state air
quality standards, as expressed in state air pollution control legislation.
The state may also consider ways in which land use considerations and
air pollution control objectives can be integrated. These involve mandatory
coordination within the state land-use or air pollution control enabling
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legislation, as well as special coordinative legislation, such as environ-
mental policy acts modeled after NEPA. Special purpose legislation, such
as power plant siting statutes, also provide coordinative benefits, but are
limited in their scope to a single source of emissions.
Regional and local governments also may be granted jurisdiction over
emission sources and authorized to consider emission quota strategies by
state enabling legislation. Such grants of enabling authority may be given
in either state air pollution control or land-use management legislation, or
granted independently through state zoning enabling statutes. Regional
governments are usually granted technical assistance authority under land-use
enabling legislation, and may play a larger role in implementing EDZ and
other emission quota strategies under delegations of authority contained
within state air pollution control legislation. Regardless of whether police
power grants are under land-use or air pollution control statutes, a major
impediment to local implementation of emission quota strategies lies in a
general lack of coordination between local and state air quality management.
5.4 IMPLICATIONS FOR MODEL STATE LEGISLATION AUTHORIZING EMISSION QUOTAS
States may consider specific legislation to allow or promote the use
of emission quota strategies and to solve many of the constitutional and
administrative problems discussed in this report. Such legislative amend-
ments can be phrased either as a state air pollution control program or
within the .framework of an existing land-use control statute. Emission
quota strategies can also be considered within independent legislation, coordi-
nating state land-use and air quality decisions involving such techniques.
Modifications of state air pollution control legislation to accommo-
date emission quota strategies may affect the permit authority given to state
air pollution control agencies. The state legislation may also have to be
amended to expand notice requirements to persons regulated under an emission
quota strategy, so as not to abridge procedural due process.
The time-consuming and unwieldy system of technical hearings and
administrative appeals in some states may be inappropriate to handle the
increased workload which an extension of permitting jurisdiction would entail.
This would suggest that legislative efforts be directed to modifying the
delegation of authority provisions in such state statutes by including
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specific administrative guidelines to substate jurisdictions considering these
strategies, stream-lining permit procedures while maintaining maximum public
involvement and participation. Therefore, modifications of administrative
standards may have to be considered.
State land-use control programs may have to be modified in similar
manners. State land-use review criteria are often broader than air pollu-
tion decisions made by state air pollution control agencies, and encompass
a greater number of considerations than air quality itself. In a few coastal
zone management programs, state air quality standards also become a criterion
for state land-use review. This coordinative aspect might need to be
strengthened when considering emission quota strategies. Coordination between
air pollution and land-use management agencies is largely informal, and more
formal links between the two programs may have to be created in order for a
state to implement EDZ and other emission quota strategies.
Implementation by local and regional agencies may require modification
of state land-use control enabling legislation. The coordination of func-
tional air quality planning on the state and substate levels may have to be
strengthened, and emission quotas established by such substate plans may have
to be integrated into the statewide air quality planning necessary under the
Clean Air Act. Because local governments derive zoning authority under inde-
pendent zoning enabling legislation, the implementation of an EDZ strategy
might be best accomplished through state air pollution control enabling legis-
lation, rather than through state land-use control legislation. Integration
with state land-use management programs sounds appealing, but the number of
such programs in existence, and their limited jurisdiction over certain
activities and geographic areas, may limit the use of such statutes as
vehicles for local and regional authorizations necessary to implement EDZ.
Further research should be undertaken, stressing local and state co-
operation in air quality planning and control, before major changes in state
enabling legislation are considered. Using special-purpose legislation to
authorize EDZ, instead of modifying existing statutes governing air pollution
control and land-use management by the state, should also be explored in
greater detail. There is an emerging interest on the state level in "one-stop
permitting," using comprehensive regulatory structures to authorize develop-
ment activities; the implications of this approach for EDZ and other emission
quota strategies deserve further examination.
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APPENDIX A
Provisions of the Clean Air Act and Their Implementation
Congress enacted the Clean Air Act "to protect and enhance the quality
of the Nation's air resources so as to promote the public health and welfare
and the productive capacity of its population." Federal financial assistance
and leadership were to be committed for this purpose, but the states and local
governments were to assume primary responsibility for preventing and control-
ry
ling air pollution. Thus the states were empowered to negotiate and form
agreements "for cooperative effort and mutual assistance" for preventing air
pollution and enforcing state laws relating to air pollution.3
Title I of the Act creates a framework for the prevention and control
of air pollution from stationary sources. Within this statutory framework,4
each state is to develop its own implementation plan for the prevention and
control of air pollution. This statutory framework can be briefly described
as follows.
The Administrator of the U.S. Environmental Protection Agency (EPA) is
required to publish lists of each air pollutant, the emissions of which are
believed to endanger the public health or welfare.5 Within 12 months after
a pollutant has been listed, the Administrator must issue air quality cri-
teria for the pollutant.6 Then, for each pollutant for which air quality
criteria are issued, the Administrator promulgates national primary and
secondary ambient air quality standards (the NAAQSs). The primary standards
are to protect the public health; the secondary standards are to protect the
public welfare. These standards are the key element, the focal point of the
statute. Achievement of the NAAQSs is the goal, and each state is required
within nine months after promulgation of the NAAQSs to prepare a plan or plans
that will provide for the attainment and maintenance of the primary and
secondary NAAQSs by the statutory deadlines.9
Each state has primary responsibility for assuring air quality within
its entire geographic area.10 For this purpose, the states are divided into
air quality control regions (AQCRs).11 A list identifying those AQCRs that
do not meet the NAAQSs or are better than the NAAQSs require must be sub-
1 2
mitted to the EPA. From this evaluation of the quality of the air within
each AQCR, the states are able to prepare the implementation plans required
by the statute.13
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For each air pollutant for which an ambient air quality standard has
been promulgated under the Act, a state implementation plan (SIP) must be
adopted by the state and submitted to the Administrator.11* This plan must
provide for the implementation, maintenance, and enforcement of the primary
standard in each air quality control region (or portion of a region) within
the state. A plan that provides for the implementation, maintenance and en-
forcement of the secondary standard may be submitted separately or as part of
the plan for implementation of the primary standard.15
Once the plan is submitted, the Administrator has four months within
which to approve or disapprove it. 6 Under the language of the statute, the
Administrator must approve the plan if it contains a series of itemized re-
quirements. These requirements include emission limitations and schedules of
compliance and certain other measures as may be "necessary." Among these
measures are transportation controls, the preconstruction review of new
sources, and air quality maintenance planning.17
In certain circumstances the Administrator may prepare a state plan.18
In other situations, the Administrator may extend the statutory deadlines for
compliance with the NAAQSs.19
The statute thus far has dealt with air quality standards for pol-
lutants. In §111, new stationary sources of pollutants, rather than standards
for pollutants, are the concern.20 Standards of performance, which establish
emission limitations for categories of pollution sources, are to be published
by the Administrator for new stationary sources.21 The states, under regula-
tions prescribed by the Administrator, are to submit plans for establishing
standards of performance for existing sources emitting neither "criteria" nor
hazardous pollutants.22 The Administrator has the authority to prescribe a
plan for a state if the state fails to submit a satisfactory plan; likewise,
the Administrator may enforce the provisions of the plan if the state fails
to do so.23
Not all pollutants are subject to the NAAQSs. These include hazardous
pollutants, for which the Administrator is authorized to set standards under
Section 112.21t The procedure for the control of hazardous air pollutants
follows the same pattern as for "criteria" pollutants and new sources. The
Administrator is required to publish a list of hazardous air pollutants for
which the EPA intends to establish an emission standard.25 Following public
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hearings, the Administrator must then prescribe an emission standard for each
listed pollutant, unless the hearings indicate that a pollutant clearly is
o c
not hazardous. Once an emission standard has been established, construction
of new sources and modification of existing sources of the pollutant may not
occur unless the Administrator finds that the source, when properly operated,
will not violate the emission standard.27 Further, emissions from existing
sources must begin to comply with the emission standard no later than 90 days
after the effective date of the standard.28 Authority to implement and en-
force emissions standards for hazardous air pollutants for stationary sources
may be delegated to a state, if the state develops and submits to the Adminis-
trator a procedure for implementing and enforcing the standards and the
Administrator finds the state procedure is adequate.29
Ultimate responsibility for enforcement of the Act remains with the
Administrator.30 Federal enforcement operates directly against the person3
in violation of a SIP, emission standards, or other standards or require-
ments.32 The Administrator is not authorized to proceed against a state even
when violations of an applicable SIP are so widespread that they appear to
result from a state's failure to enforce its plan effectively.33 Note that
assigning the enforcement role to the Administrator may require federal en-
forcement of state-adopted standards or limitations. These may be more
stringent than the national counterpart, and not required by the Act.31*
Two provisions of the Act attempt to coordinate a state's actions with
those of other units of government. With respect to the implementation and
enforcement of state implementation plans, the state must provide a process
of consultation with general-purpose local governments, federal land managers,
and regional councils of government. 5 This process is intended to assure
adequate opportunity for these authorities to present their views prior to
the adoption of measures affecting then.36 A second provision states that
each SIP must require that major proposed new sources or modified sources in
a Prevention of Significant Deterioration (PSD) area and sources that might
contribute significantly to air pollution in another state in excess of the
NAAQSs give the other state written notice 60 days prior to the date on which
construction is to begin. 7 Likewise, the applicable implementation plan
must identify and provide notice to all nearby states of those major existing
sources that are subject to the PSD provisions of the Act or that may cause
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or contribute to levels of pollution in excess of the NAAQSs in any AQCR out-
o o
side the state in which the source is located. Any state or political sub-
division is authorized to petition the Administrator for a finding that any
major source is polluting other states if the emissions will prevent attain-
ment or maintenance of the NAAQSs by another state or interfere with the
application of measures adopted by another state to implement the PSD require-
n Q
ments. Even when a permit has been granted by the state in which a source
is located, it is a violation of the applicable SIP for any source to be con-
structed or to operate if that source will adversely affect attainment, main-
tenance or PSD measures in another state.40
Part C of the Act, Prevention of Significant Deterioration of Air
Quality (PSD), regulates major new and modified stationary sources in those
regions in which the air is cleaner than the NAAQSs' require. The multiple
objectives of the PSD policy are to minimize air quality deterioration in
clean air regions while permitting stable, long-term commercial, industrial,,
and energy development. Rather than dictate a federal response to these
sometimes conflicting goals, the Act provides a program in which state and
local governments will determine, up to a certain level, how much air quality
deterioration will be allowed."*2 Each applicable state implementation plan
is to contain the emission limitations and other measures necessary, as deter-
mined under the requirements of Part C, to prevent significant deterioration
of air quality in regions in which the air is better than the standards
require. "*3
Three classes of PSD areas are identified by the statute. Except for
certain designated areas, all PSD areas are to be classified initially as
Class II."*"* For each class, the statute allows specific increments in
pollution concentrations over the baseline concentration.1*5 These allowable
increments differ for each class, but no increase in any area may exceed the
lower of the limits set by the national primary and secondary standards."*6
This limitation does place a ceiling on pollution increments in any class but
may, in some instances, allow pollution to increase up to the secondary stan-
dards . "* 7
A key element in allowing each state to balance clean air and growth
is the provision for reclassification of PSD areas.1*8 Certain national parks,
monuments, and wilderness areas may be classified as Class I or II only.1*9
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In these classes air pollution increments are lower than in Class III. All
other areas may be reclassified as Class III if the statutory procedural and
substantive requirements are met. ° Preliminarily, the state must prepare
and provide a satisfactory description and analysis of the health, environ-
mental, economic, social, and energy effects of the proposed reclassifica-
tion.5 Notice must be afforded and public hearings conducted in areas pro-
posed for reclassification and in areas that may be affected by the proposed
r p
reclassification. The proposed reclassification must be approved by the
governor and by local governments representing a majority of people in the
affected areas. There must also be consultation with the appropriate legis-
lative committees if the legislature is in session and otherwise with the
legislative leadership.5
Apparently the state has almost unlimited authority to reclassify. "*
The Administrator may disapprove a reclassification only if a reclassifica-
tion interferes with another area's classification or allowable increments,
the procedural requirements have not been met, or the state is attempting to
reclassify lands that are required to remain as Class I.55
Within all PSD areas, major emitting facilities56 are subject to a
series of preconstruction requirements.57 These requirements apply to the
construction of new facilities as well as the modification of existing facili-
ties.58 Compliance with all statutory requirements, standards, and limita-
tions is assured by means of a permit system.59
Under this permit system there must first be an analysis of any air
quality impacts projected for the area as a result of growth associated with
the proposed facility.60 This analysis may be conducted by the state or by
any general-purpose unit of local government or by the applicant for the
permit.6 This analysis must cover the ambient air quality at the proposed
site and in areas potentially affected by emissions from the proposed facility,
6 2
and must include continuous air quality monitoring data.
A public hearing must be held providing an opportunity for interested
persons, including representatives of the Administrator, to appear and make
presentations on the air quality impact of the proposed source and other
relevant considerations.63 The results of the analysis required by the Act
must be made available at the public hearing on the application for the
permit. A state permit is required for any major emitting facility before
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the facility can begin construction in any PSD area, including any federal
land area.6lf
In addition to the analysis and public hearing requirements, the
statute contains a number of preconstruction review requirements. The owner
or operator of the proposed facility must demonstrate65 that the facility will
not cause or contribute to air pollution in excess of the allowable increments
for any PSD area more than once a year, violation of the NAAQSs in any AQCR,
or violation of any other applicable emission standard or standard of per-
formance. 6 For each pollutant regulated by the Act that will be emitted
from the proposed facility, the facility must utilize the best available con-
trol technology.67 The owner or operator must also agree to conduct any
monitoring necessary to determine the effect of emissions from the facility
c o
on air quality in any area that might be affected by the emissions.
Another preconstruction permit requirement is that each state must
transmit a copy of each permit application to the Administrator. The Admin-
istrator in turn will provide notice to the federal land manager and federal
official in charge of any lands within a Class I area. If the Administrator
or any federal official in charge of federal lands in Class I areas files a
notice alleging and identifying adverse impacts likely to be caused by the
proposed source, the construction permit may not be issued unless the owner
e Q
or operator can demonstrate otherwise. These federal officials and the
Administrator do not otherwise have an opportunity for preconstruction review.
Part D of the Act contains state implementation plan requirements for
AQCRs that are nonattainment areas.70 Generally, this Part establishes the
conditions under which new (or modified) major sources will be permitted in
areas in which any air pollutant exceeds any NAAQS for that pollutant.7
In these areas, new sources are subject to emission offset regulations
to be applied in two stages. Prior to July 1, 1979, EPA emission offset re-
7 o
gulations are to apply. In order to receive a permit to construct under
these regulations, a major new source must first undergo a two-part analysis.
First, each proposed new source, major or not, must be subjected to the SIP
preconstruction review requirements to determine if it will meet all the ap-
7 ^
plicable emission requirements in the SIP. Unless the proposed new source
meets these requirements, the construction permit must be denied.71*
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Additionally, major new sources75 are subject to an air quality analysis to
determine if they would cause or exacerbate a violation of a NAAQS.
76
If the analysis shows that allowable emissions from a proposed major
new source would cause a new77 violation of a NAAQS, construction approval
may be granted only if both of the following conditions are met. First,
emissions from the proposed new source or emissions from existing sources
or from both must be reduced below the allowable levels so that construction
of the source will not cause a violation of the NAAQS. Second, the new emis-
sion limitations for both new and existing sources must be legally enforce-
able. For a new source, this is to be accomplished by making the new limita-
tions a SIP requirement by inclusion as a condition of the permit. Reduction
of emissions from existing sources must be made subject to a new SIP require-
ment to ensure that emissions will be reduced by a specified amount in a
V ft
specified time.
In cases in which allowable emissions from a proposed major79 new
source would exacerbate an existing violation of a NAAQS as of the proposed
construction date, one of the conditions for approval is that the source must
meet an emission limitation that specifies the lowest achievable emission rate
O f\
for such type of source. If the applicant owns or controls existing sources
within the same AQCR as the proposed source, these must comply with applicable
emission limitations and requirements of the SIP.8 From existing sources in
the area, regardless of ownership, emission reductions are required such that
the total emissions from existing and proposed sources are sufficiently less
than the SIP allows and represent reasonable progress toward attainment of the
p *\
NAAQS. This offset requirement must provide a net air quality benefit in
Q A
the affected area. Finally, if the proposed location is in an area in which
the EPA has found that the SIP is substantially inadequate to attain a NAAQS,
permits granted must specify that construction may not begin until EPA has
approved or promulgated a SIP revision for the area.81*
The Act provides for a waiver of the EPA emission offset regulations
with respect to any pollutant if the Administrator determines that the state
has an alternative program.85 As part of an alternative program, the state
must require an enforceable permit imposing emission limitations that meet the
lowest achievable emission rate.86 The permit must require all other major
sources owned or operated by the applicant to be subject to and in compliance
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R 7
with emission limitations. All existing sources must achieve a reduction
in emissions no less than that obtainable through the adoption of reasonably
available control technology. The program must also assure that total allow-
able emissions will be reduced at least to the level that would result from
application of the EPA emission offset regulations.88
After June 30, 1979, no major stationary source may be constructed in
any nonattainment area if the emissions from that source will cause or con-
Q Q
tribute to a violation of any NAAQS, unless the SIP has been revised to com-
Q fi
ply with the statutory requirements for nonattainment areas. To comply
with the statute, the SIP must provide for attainment of the NAAQSs "as ex-
peditiously as practicable" and, for the primary standards, no later than
December 31, 1982.9 Adoption of the plan must comply with procedural require-
ments of notice and hearing.92 All reasonably available control measures
must be implemented as expeditiously as possible,, and reasonable further pro-
gress toward attainment of the NAAQSs is required in the interim.9 Current
inventories of emissions must be maintained, and those emissions that will be
allowed to result from construction of new sources must be identified and
quantified.94 Other plan requirements include evidence of public involvement,
an analysis of the effects of the plan's provisions and of the alternatives
considered, permits for construction and operation of new sources, and finan-
cial commitments and legal authority necessary to implement the plan provi-
sions .9 5
The permit program required as part of the SIP revision contains a
statutory emission offset policy. It is similar to the emission offset
regulation discussed earlier. A permit for a new source may be issued if,
by the time the source begins to operate, total allowable emissions from
existing sources in the region, from new sources which are not major emitting
facilities, and from the proposed source will be less than the level of emis-
sions from existing sources allowed under the SIP. This reduction must repre-
sent "reasonable further progress" toward attainment of the NAAQSs.96 As an
alternative to this offset policy, the plan must show that the emissions re-
sulting from the proposed new source will not cause or contribute to pollution
levels that exceed the allowance for such pollutants permitted from new
sources under the plan. Further, the new source must comply with the lowest
achievable emission rate, and the owner or operator must demonstrate that all
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major sources owned or operated by him in the same state are subject to and
in compliance with all applicable emission limitations and standards.98
A final section in Title I imposes limitations on federal financial
assistance and other programs in order to achieve air quality standards."
This section applies to grants authorized by the EPA Administrator, including
grants for the administration of air quality programs, and grants and appro-
vals of projects by the Secretary of Transportation other than for safety,
mass transit, or transportation improvement projects related to air quality.
These grants must be withheld in any AQCR in which any NAAQS has not been
attained, where transportation control measures are necessary for the attain-
ment of the standards, and where the SIP has not met the statutory require-
ments for nonattainment areas.100 The EPA Administrator may not make any
grants authorized by the Clean Air Act if the state or any designated local
government is not implementing any requirement of the SIP.101
In addition, federal agencies may not support or allow any activity
that does not conform to the SIP. Metropolitan transportation planning
agencies designated under the federal-aid highway act may not approve any
project, program, or plan not conforming to the SIP.1 Federal agencies and
departments having responsibility for any program with transportation conse-
quences relating to air quality must give priority in their programs to the
implementation of the SIP's attainment and maintenance requirements. °
FOOTNOTES
1. Clean Air Act, §101(b)(l). [Unless otherwise noted, all sections cited
are from the Clean Air Act], 42 U.S.C. §7401 et seq. (1977 Supp.).
2. §101(a)(3) and (4); 42 U.S.C. §7403. See also H.R. Rep. No. 294, 95th
Cong., 1st Sess. 146 (1977) [hereinafter cited as H. Rep.].
3. §102(c)(l); 42 U.S.C. §7405.
4. See generally §§107 to 112; 42 U.S.C. §7407-7412.
5. §108(a)(l)(A); 42 U.S.C. §7408.
6. §108(a)(2); 42 U.S.C. §7408.
7. §109(a)(l); 42 U.S.C. §7409.
8. §109(b); 42 U.S.C. §7409.
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108
9. §110(a); 42 U.S.C. §7410.
10. §107(a); 42 U.S.C. §7407.
11. §107(b); 42 U.S.C. §7407. The Air Quality Act of 1967 required that
AQCRs be established throughout the country. This was accomplished by
the early part of this decade. S. Rep. No. 252, 95th Cong., 1st Sess.
22 (1977) [hereinafter cited as S. Rep.].
12. §107(d)(l); 42 U.S.C. §7407.
13. §110; 42 U.S.C. §7410.
14. §110(a)(l); Id.
15. Id.
16. §110(a)(2); Id.
17. § 110(a)(2)(A)-(K); 42 U.S.C. §7410.
18. §110(c)(l). If the Administrator promulgates a state plan under this
section, it is not clear what measures must be or may be included and
whether they may be enforced.
19. §110(e); Id.
20. See §§lll(a) and (b); 42 U.S.C. §7411.
21. §lll(b)(l)(B); 42 U.S.C. §7411.
22. §lll(d)(l); 42 U.S.C. §7411.
23. §lll(d)(2); 42 U.S.C. §7411.
24. §112; 42 U.S.C. §7412.
25. §112(b)(l)(A); Id.
26. §112(b)(l)(B); Id.
27. §112(c)(l)(A); Id.
28. §112(c)(s)(B)(i); Id.
29. §112(d)(l); Id.
30. §113; 42 U.S.C. §7413.
31. §113(a); 42 U.S.C. §7413.
32. See, e.g., §110(c)(l); §lll(c); §112(d).
33. §113(a)(2); 42 U.S.C. §7413. See also Brown v. EPA, 521 F.2d 827 (9th
Cir. 1975).
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34. §116; 42 U.S.C. §7416.
35. §121; 42 U.S.C. §7421.
36. H. Rep. No. 564, 95th Cong., 1st Sess. 141 (1977) [hereinafter cited as
Conf. Rep.].
37. §126(a)(l); 42 U.S.C. §7426.
38. §126(a)(2); Id.
39. §126(b); Id.
40. §126(c); Id.
41. See Part D and §110(a)(2)(D) and (E). This part of the statute is a
response to a court order. In Sierra Club v. Ruckelshaus, 344 F. Supp.
253 (D.D.C.), aff'd per curiam, 4 E.R.C. 1815 (D.C. Cir. 1972), aff'd
by an equally divided court, sub nom. Fri v. Sierra Club, 412 U.S. 541
(1973), a federal district court interpreted the purpose language of §101
(b)(1) ("...to protect and enhance the quality of the Nation's air
resources") to require a policy of nondegradation. The decree provided
little guidance for such a policy except to enjoin EPA to ensure that
the SIPs would "...not permit significant deterioration of existing air
quality in any portion of any state where the existing air quality is
better than one or more of the secondary standards promulgated by the
Administrator." Sierra Club v. Ruckelshaus, No. 1031-72 (D.D.C., filed
May 30, 1972). The EPA regulations prepared pursuant to the court order
were generally codified in the 1977 Amendments to the Clean Air Act.
42. H. Rep., supra note 2 at 146. The report indicates that the PSD mea-
sures are an attempt to allow those states that wish it the opportunity
for substantial industrial development. Congress chose not to allow
unlimited pollution in clean air regions up to the ambient standards.
Such a policy would have assured that eventually the entire country would
become uniformly polluted and would have put the states that wanted to
maintain clean air at an economic disadvantage. In allowing some addi-
tional deterioration, the idea was to achieve maximum flexibility. Id.
43. §161; 42 U.S.C. §7471. See §110(a)(2)(D); 42 U.S.C. 7410. These are the
regions identified under §107.
44. §162; 42 U.S.C. §7472. Certain specified parks and wilderness areas are
to be originally designated Class I. All other areas identified pursuant
to §107(d)(l)(D) or (E) are to be Class II areas.
45. §163(a); 42 U.S.C. §7473. At first the PSD requirements apply only to
sulfur dioxide and particulate matter. However, the Administrator is
required to promulgate PSD regulations for four additional pollutants
and for any other pollutant for which a national air quality standard is
subsequently issued. §166.
46. §163(b)(4); 42 U.S.C. §7473.
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47. This may occur because allowable pollution increments are added to
existing baseline levels.
48. §164; 42 U.S.C. §7474.
49. §164(a); Id.
50. §164(a)(2); Id.
51. §164(b)(l)(A); Id.
52. Id.
53. §164(a)(2)(A); Id.
54. The legislative history, S. Rep., supra note 11, at 29, 36, indicates
that the primary authority for PSD is placed with the states. See also
H. Rep., supra note 2, at 146-152.,
55. §164(b)(2); 42 U.S.C.§7474.
56. §169(1); 42 U.S.C. §7491, defines the term "major emitting facility" to
include any stationary source that emits or has the potential to emit
100 tons per year or more of any pollutant from a list of 28 categories
of stationary sources.
57. §165(a); 42 U.S.C. §7475.
58. See §169(2)(C), incorporating by reference §lll(a)(4); 42 U.S.C. §7491.
59. §165(a)(l); 42 U.S.C. §7475. Note that although this review procedure
is required for the sources listed in the statute, EPA has the authority
to add to this list. The state, of course, may use this review procedure
for additional categories of sources. S. Rep., Supra note 11, at 31.
60. §165(a)(2) and (6); 42 U.S.C. §7475.
61. §165(e)(l); 42 U.S.C. §7475.
62. §165(e)(2) and (3); 42 U.S.C. §7475.
63. §165(a)(2); 42 U.S.C. §7475.
64. §165(a)(l); 42 U.S.C. §7475.
65. §110(j); 42 U.S.C. §7410.
66. §165(a)(3); 42 U.S.C. §7475.
67. §165(a)(4); §165(a)(8); 42 U.S.C. §7475.
68. §165(a)(7); 42 U.S.C. §7475.
69. §165(d); 42 U.S.C. §7475.
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70. Conf. Rep., supra note 36, at 155-158. Experience has exposed a major
flaw in the implementation of the 1970 Act: the failure to assess the
impact of emissions from new sources of pollution on the ability of state
plans to attain the NAAQSs by the statutory deadlines. The states often
approved new sources of pollution, assuming that the statutory deadlines
for the attainment of the NAAQSs were sufficiently distant that future
emission reductions could be made to compensate for initial pollution
increases. Congress, concluding that a formal mechanism was necessary
to account for new source emissions within nonattainment areas, developed
a comprehensive scheme for attainment of the NAAQSs and included stringent
requirements as conditions for growth in nonattainment areas. S. Rep.,
supra note 11, at 55.
71. §171(2); 42 U.S.C. §7501.
72. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, §129(a)(1), 91 Stat.
745. This section was not codified; all references to this section are
references to the uncodified section as it appears in the 1977 amend-
ments. For EPA's emission offset policy see 41 Fed. Reg. 55524 (1976).
73. Id. at 55528.
74. Note that a state or a local reviewing authority is not required to
approve a source that meets the preconstruction review requirements,
since §116 of the Act allows the states to set standards more stringent
than the minimum federal requirements. For many reasons, a state or
local authority might decide that allowing the new source would not in
any case be in the best interest of the community. See 2V-T. at 55525.
75. A "major" source is defined in terms of the amount of emissions per
year. See Id. at 55528.
76. Id. at 55528. Of course, this second review procedure may be used by a
state or local authority for any nonmajor source.
77. The regulations point out that instances of SIP inadequacy or nonattain-
ment of the NAAQS are determined for established administrative bound-
aries such as the AQCR rather than for that precise area where the air
quality problem exists. In other words, a SIP revision may be necessary
for an AQCR on the basis of a localized violation of standards in a small
portion of the AQCR. The remaining portion of the AQCR may be "clean."
Hence, a source proposing to locate in this "clean" area could cause a
"new" violation in the clean portion of the nonattainment area or con-
tribute to the existing violation in the "dirty" portion of the non-
attainment area. On the other hand, the source might not cause or
contribute to a violation of the NAAQS at all. For this reason, the
regulations suggest that decisions on proposed new sources should be
made on a case-by-case basis.
78. Id. at 55528. The form of the SIP requirement may be a state or local
regulation, a condition on an operating permit, a consent or enforce-
ment order, or any other legally enforceable mechanism available to the
state. Id. at 55530.
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79. Id. at 55528. The regulations do not fully explain the phrase "allow-
able emissions from a proposed major source." Presumably, "allowable
emissions" means "otherwise allowable" emissions, i.e., those allowed
under an applicable §111 New Source Performance Standard (NSPS). This
interpretation is supported by the Administrator's statement that the
"lowest achievable emission rate" must not exceed any NSPS set under
§111 of the Act. 41 Fed. Reg. 55526. This particular requirement
applies only to those pollutants causing the proposed source to be
defined as a "major" source, not to all the pollutants emitted from the
source. Other pollutants may be treated in the same manner, if the
reviewing authority deems it appropriate. Id., n.2.
80. The lowest achievable emission rate must be based on a consideration of
the most stringent limitation in any SIP and the lowest rate achieved
for the type of source. Any applicable new source performance stan-
dard must not be exceeded.
81. Id. at 55529.
82. Id.
83. Id.
84. Id. See §110(a)(2)(H)(ii); 42 U.S.C. §7410.
85. §129(a)(2); 42 U.S.C. 7502.
86. §129(a)(2)(B)(i), see §173(2); 42 U.S.C.§7502.
87. See §173(3); 42 U.S.C. §7503.
88. §129(a)(2)(C); 42 U.S.C. §7502.
89. §110(a)(2)(I); 42 U.S.C. §7410.
90. Id.
91. §172(a)(l). A later attainment date for photo-42 U.S.C. 7502 chemical
oxidants or carbon monoxide or both may be permitted if the SIP demon-
strates that earlier attainment is not possible, despite the imple-
mentation of all reasonably available measures. The SIP must then pro-
vide a special permit program that requires an analysis of alternatives
to the proposed source which demonstrates that the benefits of the pro-
posed source significantly outweigh the environmental and social costs
imposed as a result of its construction. A schedule for implementation
of a vehicle emission control inspection and maintenance program, and
other measures necessary to provide for attainment of the NAAQSs by 1987,
must also be included.
92. §172(b)(l); 42 U.S.C. §7502.
93. §172(b)(2) and (3). §171(1) defines reasonable further progress as
annual incremental reductions in emissions sufficient to provide for the
attainment of the applicable NAAQS by the statutory deadline.
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94. §172(b)(4) and (5); 42 U.S.C.§7502.
95. §172(b)(9) and (10); 42 U.S.C.§7502.
96. §173(1)(A); 42 U.S.C. §7503. See note 93 supva,
97. Recall that the purpose of the emission offset requirement was to pro-
vide a formal mechanism for allowing growth to occur while attaining
the NAAQSs. See supra note 70. If the state chooses a strategy other
than an emission offset policy, it must show that the new source will
not cause the allowance for new growth built into the state plan re-
vision to be exceeded. Conf. Rep., supra note 36, at 157. See also
§§172(b)(5) and (8).
98. §173(2) and (3); 42 U.S.C.§7503.
99. §176; 42 U.S.C.§7506.
100. §176(a); 42 U.S.C. §7506.
101. §176(b); 42 U.S.C. §7506.
102. §176(c); 42 U.S.C. §7506.
103. §176(d); 42 U.S.C. §7506.
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APPENDIX B
Selection Criteria, Methodology, and State-By-State Review of
Environmental Laws and Regulations Affecting Emission Density Zoning
SELECTION CRITERIA
The scope of this study does not allow examination of air pollution
and land-use management programs in all 50 states. In order to maximize the
effectiveness of research effort, ASPO focused its inquiry on six states that
are believed to exemplify air pollution, land-use management, and administra-
tive issues common to a much larger area. They can be considered "typical"
states whose programs, regulations, and legal authorities are likely to be
duplicated by other state programs under similar grants of regulatory autho-
rity. The sample states represent a geographic cross-section of the United
States, and their air pollution and land-use management programs also repre-
sent types commonly found in a greater number of state programs than can be
individually examined within the scope of this project. The six states are
Alabama, Colorado, Illinois, Minnesota, New Jersey, and Pennsylvania.
These states show a large diversity of administrative structures for
air pollution control. For example, Colorado and Alabama administer air pol-
lution control through state departments of health. Pennsylvania, Illinois,
and New Jersey have state departments of environmental management with
specific air pollution control divisions. Minnesota has placed its air pol-
lution control agency within a larger state pollution control agency, analo-
gous to a state department of environmental management.
There is also considerable variation among the states regarding land-
use control programs. Land-use control programs are important in using an
EDZ air pollution control strategy because EDZ considers location, land-use
area, and zoning factors as part of its management technique. Just as EDZ
can consider land-use management in implementing regulations, land-use con-
trol programs can consider using EDZ as part of their own management tech-
niques. Therefore, it may be possible to implement EDZ through a land-use
management program if the air pollution control institutions or laws are
incapable of accommodating an EDZ strategy.
Although only a few states have a land-use management program analo-
gous to zoning on the state level, a number of states have special interest
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programs focused on a single aspect of development. A state may choose to ex-
ercise jurisdiction only over an environmentally-sensitive area, such as a
shoreline or coastal wetland, or may choose to regulate only specific classes
of development activity, such as power plants or large-scale industrial
developments. Minnesota and New Jersey both have programs that manage shore-
line areas and that may offer potential for EDZ techniques as part of a land-
use management program; Alabama has a similar program for its coastal zone.
Minnesota also has an energy agency responsible for approving large power
plants.
These specialized programs represent a new trend in land-use control,
where the police power originally granted by the state to local communities
through zoning enabling legislation is recaptured by the state for specific
types of developments and geographic locations. The rationale for such re-
capture is based on the limited resources available to local government
to adequately assess the impact of such developments and the inability of
local governments to consider extrajurisdictional effects of local appro-
vals. Such state programs may be able to incorporate air pollution con-
siderations into land-use management decisions, especially when the stated
legislative purpose of such state programs involves environmental protection
and management.
Finally, some of the states surveyed require environmental impact
statements for state actions, including permit approvals for stationary
sources of air pollution, which have a substantial effect on the environment.
These actions must be reviewed and their impact assessed in comparison to
alternative development proposals. These programs are similar to and modeled
after the National Environmental Policy Act (NEPA)l and follow a similar ad-
ministrative process of circulating environmental impact statements for com-
ment among the public and government agencies. Such programs often addi-
tionally require public hearings for environmental impact statements regarding
air pollution control. These mechanisms can offer opportunities for inte-
grating EDZ considerations into the review process.
The air pollution and land-use programs of the six states are sum-
marized in the following table.
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State Air Pollution and Land-Use Controls
State
Type of State Program
Ala. Colo. 111. Minn. N.J.
Penn.
Air Pollution Control
Dept. of Health
Dept. of Environment
X
X
X
Land-Use Management
Coastal Zone X
Wild Rivers X
Power Plant Siting
State Land-Use Standards X
Environmental Impact Statement
X X
X
X
X X
X
Only has advisory authority over local governments, by establishing stan-
dards for local land-use regulatory decisions.
METHODOLOGY
The following material examines the legal and institutional arrange-
ments for air pollution control and land-use management within the six survey
states. It is based on an examination of state constitutional and specific
statutory provisions, and administrative regulations. The data are supported
by personal telephone interviews with applicable state officials responsible
for administering the programs and laws discussed below.
In determining relevant statutory and regulatory material, the re-
searchers concentrated on those state programs thought to be most likely to
influence the siting of facilities that would qualify as stationary sources
of pollution under the EDZ technique. These included principally power
plants, industrial developments, and large-scale commercial developments and
excluded, for the most part, residential developments and transportation-re-
lated facilities (affecting mobile pollution sources). The programs and
legislation examined were analyzed according to whether or not the state
agency exercised regulatory jurisdiction over the siting of such a facility,
to what extent it exercised such jurisdiction, and to what extent its deci-
sions involved air pollution considerations. In some states, inquiries were
also made as to possible coordinative linkages between various state agencies
and between state and local levels of government, in order to determine how
an existing state program could be coordinated with several emission quota
strategies.
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STATE SUMMARIES
Alabama
The Alabama Air Pollution Control Act of 1971 creates a division of
air pollution control and an air pollution control commission within the
Department of Health.2 The Commission by regulation prohibits the construc-
tion, installation, modification, or use of any equipment, device, or other
article which it finds may cause or contribute to air pollution or which is
intended primarily to prevent or control air pollution without a permit issued
by the Commission.3 The Commission also may "establish such emission con-
trol requirements...as may be necessary to abate, prevent, or control air
pollution" and the requirements may "be for the State as a whole or vary from
area to area...in order to take account of varying local conditions."1*
Applications for a permit are submitted to the Commission for review
with special emphasis on whether the proposed activity would be in keeping
with plans for the prevention of significant air quality deterioration. The
Commission then coordinates the process with the Region IV Office of the U.S.
Environmental Protection Agency, which must rule affirmatively on whether the
proposed plans satisfy the Clean Air Act requirements for "best available con-
trol technology." The Commission uses a two-step permit process, incorporating
a permit to construct and a permit to operate.5 The Act also provides for a
variance procedure,6 where the Commission may impose conditions on its
issuance of a variance under the air pollution standards and requirements.
The Commission may also approve local programs for air pollution control if
the Commission finds the local program is compatible with the purposes of the
Act. '
The Air Pollution Control Commission, the Department of Solid Wastes,
and the Water Improvement Commission are all within the Alabama Department
of Health and all have some siting authority, depending on the proposed
facility. The Solid Wastes Disposal Act8 provides for permits for indi-
viduals or corporations to operate solid waste disposal facilities that other-
wise would be operated by municipalities, for example.
No party has appealed the decision of the Air Pollution Control Commis-
sion not to issue a permit beyond the Commission level. The Commission has,
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in every case, upheld the recommendations of the state Division of Air Pollu-
tion Control concerning permit applications. An appeal concerning the hand-
ling of a permit may be taken within 30 days to the circuit court in the
county having jurisdiction over the affected property.9
State land-use management is centered in the Alabama Coastal Area
Board, which requires a permit for regulated activities within the coastal
zone. A coastal construction permit must include a certification that a
permit has been applied for (or is not required) from the Alabama Air Pollu-
tion Control Commission. ° Without question, major air pollution facilities
are included within the activities regulated within the coastal zone, and the
certification of air pollution control compliance assures a strong level of
coordination between the Alabama Coastal Area Board and the Air Pollution
Control Commission.
Alabama also authorizes the creation of a State Industrial Development
Authority, and Industrial Development Boards within individual municipali-
ties. Neither the Authority nor the Boards have any specific land-use regu-
latory authority or air pollution control authorizations. The privately
organized Industrial Development Corporations similarly have no land-use or
air pollution control regulatory powers.
Advisory regional planning commissions are authorized to assist local
governments in comprehensive planning, but they have no specific land-use
i ?
regulatory authority.
Colorado
Colorado has a variety of statutes that affect air pollution control.
A state Air Pollution Control Commission is created in the state Board of
Health, under the Colorado Air Pollution Control Act of 1970.13 The legisla-
tive declaration of the Act states that air pollution control is a "matter of
statewide concern" and that the purpose of the Act is to "require the use of
all available practical methods to reduce, prevent, and control air pollution"
and "to maintain a cooperative program between the state and local units of
government." **
The Act states that the Commission shall have maximum flexibility in
developing effective air pollution control programs. This grant of
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authority includes establishing air pollution control regulations for speci-
fied areas or zones of the state, in addition to establishing requirements
for the entire state. 6 The standards adopted under these regulations may
vary for different parts of the state, based on variations of altitude, topo-
graphy, or meteorology, and may include specific area controls and describe
varying degrees of contamination allowed within the specific areas. 7
The Commission requires that a permit be issued for the "emission of
contaminants from, or construction or alteration of, any facility, process,
or activity except residential structures, from which contaminants are to be
emitted," or for the construction or substantial alteration of any building,
except single family residential dwellings, which will result in emissions.18
The Commission uses a single permit for installation and operation, but the
permit process is in two stages—preliminary and final approval. The Com-
mission may impose whatever conditions it deems necessary to accomplish the
purposes of the Act when it issues its permit. Although this implicitly may
include density controls, the Commission has never issued an area requirement
or any other EDZ strategy as part of its conditions. Standard conditions im-
posed on stationary sources include a maximum opacity of 20%, a process
weight-loss restriction, and the imposition of federal New Source Performance
Standards (NSPS) when applicable.
The state has its own NSPS, although it has not been delegated this
authority by the U.S. Environmental Protection Agency. Only the state NSPS
regulations are enforced by the state Air Pollution Control Commission.
Variances may also be granted by a Variance Board of the Commission. 9
The Board may grant a variance when there are findings that the "best practi-
cable technology" is unavailable, that the application of the air pollu-
tion control regulations would constitute an "unreasonable economic burden"
on an applicant, and that the issuance of a variance would be consistent with
the policies of the state Air Pollution Control Act. The "unreasonable econo-
mic burden" requirement would be applicable if the Board or Commission finds
that the regulation would result in a taking or the practical closing of any
lawful business or activity without a concurrent public benefit.20
The state Air Pollution Control Commission may delegate its authority
to local governments.21 There are two avenues used in this delegation
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process: the state may designate a local air pollution control agency as
meeting the standards of the Commission and allow it to control air pollution
directly, or the state may contract with local governments for monitoring or
enforcement services, while reserving permit authority in the Commission.
For example, Denver is exercising air pollution control authority under its
own home rule powers and receives funding directly from the U.S. Environmental
Protection Agency to administer its own program independently of the state
efforts. Local governments are allowed to exercise home rule authority pro-
e\ r\
vided they adopt a home rule charter.
The commission receives referrals from the Colorado Land-Use Commis-
sion (CLUC), but not on a consistent or uniform basis. Informal relationships
are also maintained between the Commission and the state Department of Agri-
culture for fugitive dust problems, and with the state's Oil and Gas Conserva-
tion Commission for geothermal exploration, although the Air Pollution Control
Commission exercises no air pollution control jurisdiction over geothermal
sources.
Particulates are also controlled under the Soil Erosion and Dust Blow-
ing Act of 1954, which allows a Board of County Commissioners to consider
certain actions when presented with a case of soil erosion affecting public
iy o
roads or lands. The county does not have permit or regulatory authority
over such eroding lands, but may fine the landowner, or correct the dust
blowing and charge the activities to the landowner. This program is indepen-
dent of the state's air pollution control program.
Air pollution control issues also may arise before the Colorado Oil
and Gas Conservation Commission under the Colorado Geothermal Resources Act, *
where the commission must consider the effects of geothermal exploration on
air quality when issuing a geothermal exploration permit. This program is
also independent of the state Air Pollution Control Commission.
The Colorado Land-Use Commission identifies and establishes review
criteria for "matters of state interest."25 The "matters of state interest"
are defined to mean an area of state interest or an activity of state interest,
r\ f.
or both. Although the Colorado Air Pollution Control Act defines air pol-
lution as a "matter of statewide interest," there is no mention of air pollun
tion emission sources as a "matter of state interest" under the Colorado
Land-Use Act or CLUC regulations. The duplication of language between the
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two acts is considered accidental and does not indicate the establishment of
coordinative or permitting activities between the Air Pollution Control Com-
mission and CLUC.
CLUC does not require a state permit for defined matters of state
interest, but rather establishes review criteria for local governments, which
must issue their own permits for designated areas or activities of state
interest. The powers of the CLUC are essentially recommendatory, and are
binding on local governments that did not have zoning or land-use controls
in existence at the effective date of the Act (in 1974). The only authority
the CLUC has over local jurisdictions is the threat of litigation, should a
local permit clearly conflict with a CLUC-adopted development guideline. The
local review guidelines established by CLUC do not include air pollution con-
trol criteria, but require that a person proposing an activity of state
interest obtain all necessary state permits in addition to the local permit
issued under CLUC guidelines. The additional state permits might include a
state air pollution control permit, if required independently by the state
Air Pollution Control Commission.
Illinois
Air pollution control authority arises in Illinois under the state's
7 V
Environmental Protection Act. The Act creates, under Title II, an air
pollution control program involving the state Pollution Control Board ("the
Board"), the Illinois Environmental Protection Agency ("the Agency"), and the
Illinois Institute for Environmental Quality ("the Institute"). All three
administrative bodies are given specific tasks under the state's air pollution
control laws; the state's Attorney General is also given a central adminis-
trative role in the air pollution control process.
The Institute has the most limited role of all the administrative
bodies involved. The Institute is directed to provide an economic study to
the Board before the Board adopts air pollution control regulations or makes
significant alterations in existing regulations.28 The Institute is also
directed to fund technical research projects and sponsor directed research for
the Board and Agency.
The Board is responsible for adopting air pollution control regula-
tions,29 hearing petitions for review of air pollution emission permits and
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regulations, u and enforcing permit requirements under its own regulations.35
The Board can hold hearings to adopt regulations suggested by the Institute,
the Agency, or citizen petition.3 The Board also hears appeals from permit
denials by the Agency, and can grant variances to emission sources which
cannot meet the standards and requirements of the Act.3"* Finally, the Board
can hold administrative hearings on violations of the air pollution control
laws and regulations, which can be brought before the Board by citizens, the
Agency, or the Attorney General's office.35 The Board can fine violators,
based on findings made during the administrative hearing.
The Agency is responsible for administering the air pollution control
program established under the Illinois Environmental Protection Act and under
the regulations adopted by the Board. The Agency issues permits according to
q e
the regulatory standards, and has the authority to deny an air pollution
control permit, provided that it makes certain findings and informs the
applicant of the reasons for the denial. The applicant may then appeal the
decision to the Board.
Although the Board functions as a quasi-judicial agency, actions to
abate air pollution emissions or enjoin polluters in violation of the Act or
regulations can also be brought by the state Attorney General's office. Thus
there are three avenues open to punish violators—a citizen can go before the
Board, or can make a complaint to the Agency (which might bring an action
before the Board, if the Agency finds that a violation has occurred), or can
bring an action through the Attorney General's office, where the Attorney
General can bring a suit directly in the courts or can bring the action before
the Agency or Board.
The Agency is responsible for issuing emission control permits, under
the Act and under the Board regulations. The permit can be conditioned to
require periodic monitoring reports by the applicant or to mandate the use of
o 7
pollution abatement equipment. The Agency issues both construction and
o p
operating permits, and identifies violations of state pollution standards
through air quality monitoring.
The state air pollution control regulations establish performance stan-
dards for new and existing emission sources. Two sections of the regulations
are noteworthy, because they contain an area requirement for incinerators,
which cannot be located within 1,000 feet of residential development.39
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The remainder of the regulations and standards use a weight-process limita-
tion or total-emission-per-unit-time approach.
Local agencies can be directed by the Board to correct violations of
the Act.40 The Act allows local governments to develop their own air pollu-
tion control programs, which are run independently of the state program. Both
the City of Chicago and Cook County (which contains Chicago) have their own
programs, for example. The state provides technical assistance to local
governments wishing to establish such programs on their own.
There is considerable informal coordination between the Air Pollution
Control Division and other divisions within the Illinois Environmental Pro-
tection Agency. For example, the Air Pollution Control Division might notify
the Water Pollution Control Division of a permit for a scrubber, which could
be a point source of water pollution under the Federal Water Pollution Control
Act of 1972. The Air Pollution Control Division probably would not tell an
applicant about the requirements for federal permits under the water pollution
laws, however. The Air Pollution Control Division has not been delegated the
authority to enforce the federal New Source Performance Standards under the
Clean Air Act, and enforces only the state performance standards. However,
an application is pending before the U.S. Environmental Protection Agency to
authorize the state to assume administration of the federal NSPS standards.
Coordination between state agencies is promoted by the Illinois Environmental
Protection Act, which requires that for any action by a state agency which
will result in pollution, plans, specifications and cost estimates must be
submitted to the Agency for review before the agency proceeds with the
action.1*1
An Illinois Industrial Pollution Control Financing Authority42 may
issue bonds to finance loans to industry in order to allow the industry to
purchase necessary pollution abatement equipment. The Authority earmarks its
money for small businesses and has little functional coordination with the
Air Pollution Control Division of the Illinois Environmental Protection Agency.
The Authority has no jurisdiction over the siting of facilities or other sta-
tionary sources of air pollution.
The Northeastern Illinois Planning Act"*3 and the Southeast Illinois
Metropolitan and Regional Planning Act44 create regional planning agencies
whose major purpose is to provide assistance to local governments. Because of
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their advisory role, these agencies would not be involved in a siting process
directly, although they may comment on requests for federal funds for facili-
ties that may involve air pollution issues through the review process estab-
lished under Circular A-95 of the federal Office of Management and the Budget
(OMB).
Minnesota
The Minnesota Pollution Control Agency is authorized to "issue, con-
tinue in effect or deny permits, under such conditions as it may prescribe
for the prevention of pollution, for the emission of air contaminants, or for
the installation or operation of any emission facility, air contaminant treat-
ment facility, treatment facility, potential air contaminant storage facility,
or storage facility, or any part thereof, or for the sources or emissions of
noise pollution."'*5
These duties specifically include collection, transportation, or dis-
posal of solid waste; or the installation or operation of any system or
facility, or any part thereof, related to the collection, transportation, or
disposal of solid wastes. The definitions of what would be included in these
various terms cover all considerations raised in this report.4
The Pollution Control Agency must set air quality standards after con-
sideration of a broad range of circumstances.1*7 It also must encourage the
disposal of solid wastes under standards adopted to minimize air pollution.
The agency may, after public hearing, grant variances from the standards if
doing so would avoid undue hardship and still promote the reasonable appli-
cation and enforcement of the law.
The Air Quality Division issues two types of permits: an installation
permit before construction of a new facility, and an operating permit for
existing and recently constructed facilities. The Division interprets "air
polluting facilities" very broadly and excepts very few installations.
The state controls more rigorously the siting of power plants. The
Director of the Minnesota Energy Agency is empowered to "undertake a con-
tinuing assessment of trends in the combustion of all forms of energy and
analyze the social, economic, and environmental consequences of these trends"
and to "require a certificate of need for construction of large energy facili-
ties. "'t8 "Large energy facilities" include electric-power generating plants,
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single-site storage facilities for various quantities of petroleum and natural
or synthetic gas, any petroleum refinery, any nuclear fuel processing or waste
storage facility, any facility intended to be used for the combustion of
specified amounts of fuel, and others. "*9
"No proposed large energy facility shall be certified for construction
unless the applicant has justified its need. In assessing need, the Director
shall evaluate: ...socially beneficial uses of the output of this facility,
including its uses to protect or enhance environmental quality."50 The Direc-
tor is given broad administrative and executive powers, and the agency is
given sole authority for the administration of those matters: "other laws
notwithstanding, the authority granted the agency shall supercede the autho-
rity gj_ven any other agency whenever overlapping, duplication, or additional
administrative or legal procedures might occur in the administration of [these
sections]."51
The Minnesota Environmental Quality Board is given the authority to
provide for siting of "large electric powered generating plants"52 and shall
do so "in an orderly manner compatible with environmental preservation and the
efficient use of resources. ...and in a manner to minimize adverse human and
environmental impact while insuring continuing electrical power system relia-
bility and integrity."53
An applicant for a permit applies first to the Minnesota Energy Agency
for a certificate of need if the facility is included in the definition of
"large energy facility." A power plant siting group within the Environmental
Quality Board then approves specific sites within the state. The Board then
requires an environmental impact statement in many instances and public hear-
ings on the proposed plan. The Board determines which agency prepares the
environmental impact statement: the Pollution Control Agency often is the
agency to prepare it. Then, after the Environmental Quality Board approves
the site and related plans, the Pollution Control Agency can issue the appro-
priate permit. Although this permitting process advances step by step, in
practice the evaluations frequently are performed simultaneously by the
various agencies.
The certificate of need is based upon a 15-year forecast of supply and
demand for power. The site determination is greatly influenced by whether
the proposed site is within an "attainment" or "nonattainment" area as
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specified in accordance with the Clean Air Act. The Pollution Control Agency
has not yet refused a permit because of significant air pollution problems in
the planned area. It might be possible, for example, for a corporation to
expand its facilities by installing "best available control technology" on the
old as well as the new portions of the plant, thus decreasing the overall
amount of pollution.
The Minnesota Department of Natural Resources becomes involved in the
siting process if it significantly or potentially affects a body of water.
This agency has authority:
to provide guidance for the wise development of shorelands of
public waters and thus preserve and enhance the quality of
surface waters, preserve the economic and natural environmen-
tal values of shoreland, and provide for the wise utilization
of water and related land resources of the state. 'Shore-
land' means land located within the following distances from
the ordinary high water elevation of public waters: (1) land
within 1,000 feet from the normal high watermark of a lake,
pond, or flowage; and (2) land within 300 feet of a river or
stream or the landward side of floodplain delineated by ordi-
nance on such a river or stream, whichever is greater.
The Commissioner of the Minnesota Department of Natural Resources is
required to issue standards and criteria for the preservation and protection
of shorelands within the boundaries of wild, scenic, and recreational rivers
under the Minnesota Wild and Scenic Rivers Acts.*5 If a proposed facility
would be located within the specified distance of a watercourse or would
significantly influence water quality, the Minnesota Department of Natural
Resources also must issue a permit.
In addition, the Southern Minnesota Rivers Basin Board was created to
help preserve the environmental integrity of the area and is empowered:
to adopt guidelines and regulations to coordinate natural re-
sources management so as to prevent the pollution, impairment
or destruction of the air, water, land, or other natural re-
sources located within the basin, assuming that the board's
activities will not unnecessarily overlap or conflict with
any similar activities authorized by the legislature and per-
formed by established agencies. G
Two of the board's 11 goals are the "regulation of improvements and
land development by abutting landowners of the bed, banks, and shores of
[watercourses] or otherwise in order to preserve the same for beneficial use;
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such regulation to be in accordance with the [other state standards and cri-
teria]," and "regulation of construction or improvements on and prevention of
encroachment in the floodplains of the [watercourses]; such regulation to be
in accordance with [other state standards and criteria]."57 Evidently this
board has no powers to regulate the siting of point-source air pollution
facilities which are not preempted by agencies with statewide jurisdiction.
The Industrial Commission of Minnesota and the Department of Economic
Development59 have no land-use authorities related to siting of facilities.
At the substate jurisdictional level, every city with a population greater
than 50,000, or which has within its boundaries a port or harbor located on a
navigable lake or stream, is authorized to create a Port Authority that may
create an industrial development district to promote the sound development of
land within its jurisdiction.60 The provisions certainly would be preempted
by statewide controls.
The Commissioner of Natural Resources "shall coordinate and supervise
a local-state program for the establishment of lake improvement districts by
counties and cities for lakes located within their boundaries based on state
guidelines and regulations and compatible with all SL.ate, regional, and local
plans where such plans exist."61 It is unlikely indeed that these districts
would have power to regulate the siting of large facilities.
At the jurisdictional level higher than the state, Minnesota is a
signatory of the Great Lakes Basin Compact, promoted for the purpose of,
among others,"...advisfing] in securing and maintaining a proper balance among
industrial, commercial, agricultural, water supply, residential, recreational
and other legitimate uses of the water resources of che Basin." Under Article
VII, each state agrees to consider the action of the commission in recommend-
ing "Cooperative programs for control of soil and bank erosion for the general
improvement of the Basin" and "Diversion of waters from and into the Basin."
Presumably, then, Minnesota then would have to consider these provisions in
allowing a large facility to be sited near the shores of Lake Superior.
New Jersey
Air pollution control is administered by the Division of Environmental
Control within the New Jersey Department of Environmental Protection, under
the New Jersey Air Pollution Control Act of 1954.52 The Act establishes a
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Clean Air Council for the state, whose principal authority is to review the
programs of, and make recommendations to, the Department of Environmental Pro-
tection (DEP) about air pollution control issues.63 The principal operation
and management of the state air pollution control program is within the DEP,,
and the Clean Air Council has little day-to-day contact with the program
administration.
The DEP adopts and administers regulations for the control of sta-
tionary and mobile pollution sources. '* DEP uses a two-permit system, with a
separate permit for installation or operation of facilities likely to cause
air pollution, and an operating certificate issued for five years for pollu-
tion control equipment. The statute specifically exempts one- and two-family
dwellings or residential structures of six or fewer dwelling units, provided
that the multi-family structure is owner-occupied, from the jurisdiction of
DEP and the air pollution control program.6
DEP uses a two-stage review procedure when assessing permit applica-
tions. The department must determine whether or not the emissions will comply
with the state standards, and whether the pollution abatement techniques are
"state of the art." If both tests are affirmative, then a permit is issued.
The state has been delegated authority by the U.S. Environmental Protection
Agency to administer the New Source Performance Standards under the Clean Air
Act. The department is just developing toxic substance standards to comply
with the new Clean Air Act amendments, and is implementing an offset policy
in attainment areas of the state. The state is also revising its State
Implementation Plan under the Act.
A person who is denied a permit may request an administrative hearing
before the DEP.66 The hearing is held before a hearing officer and findings
made, based on testimony presented. The hearing does not involve the state
Clean Air Council.
The DEP may issue an order to cease violations, and can issue a notice
fi V
of prosecution, if a violation is not abated. Injunctions and penalties
are permitted, and the DEP may request the state Attorney General to take
appropriate action in the courts, if administrative orders of the agency are
r p
not complied with.
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The DEP has an advisory relationship with local air pollution control
programs, and possesses no land-use control authority under the Act or under
its regulations. DEP must, however, approve local air pollution control
regulations, even if more restrictive than the state air pollution standards,
provided the local regulations are not inconsistent with the purposes of the
Act. An earlier statutory provision, repealed in 1967, allowed counties to
establish their own air pollution controls under the aegis of a County Air
Pollution Control Association, but this authority was recentralized in the
state when the DEP was created in 1970.
The air pollution control section of the Department of Environmental
Protection has established good informal relationships with other state
agencies involved in land-use control. The Hackensack-Meadowlands Commission,
administered through DEP, refers permit applications to the air pollution con-
trol agency when joint permits are necessary.
The DEP also coordinates its permit process with permit approvals under
the New Jersey Coastal Area Facility Review Act.69 The Coastal Area Facility
Review Act (CAFRA) is a program established in the DEP and requires review
of certain facilities if proposed in a defined coastal zone of the state.
The boundaries of the coastal zone generally define all nonurban coastal
areas of the state.71 The broad definitions of "facility" and "coastal area"
essentially encompass all major stationary sources of emissions within all
nonurban areas of the state near the coastal Line.
The Act requires that a person proposing the construction of a desig-
nated facility within the coastal area apply for and receive a permit
from DEP.72 The application requirements for the permit involve the sub-
mission of an environmental impact statement, which includes the submission
of data involving air quality impacts.7 The DEP must then hold a public
hearing and reach a decision on the application. "* In order to approve a
permit application, DEP must find that the facility complies with all state
standards, including state air pollution standards.75 Conditions may be
imposed on a permit issued under the Act,76 or the permit application may be
denied. If denied, an applicant may appeal to a Coastal Area Review Board.
The Act also provides that penalties may be levied against development in
violation of CAFRA and injunctions may be obtained against facilities being
constructed without a DEP CAFRA permit.78
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Pennsylvania
The Pennsylvania Constitution, in a provision adopted in 1971, pro-
vides :
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic, and esthetic
values of the environment. Pennsylvania's public natural re-
sources are the common property of all the people, including
generations to come. As trustees of these resources, the Com-
monwealth shall conserve and maintain them for the benefit of
all the people. 9
The Department of Environmental Resources grants air pollution control
permits: "No person shall operate any stationary air contamination source
[as defined elsewhere in this section] unless the department shall have issued
to such person a permit to operate such source in response to a written ap-
plication."80 That section also creates an environmental hearing board to
"hear and determine all appeals from orders issued by the department in
accordance with the provisions of this act." The department is empowered
to grant temporary variances from the provisions of this act.
The department maintains seven regional offices where permit applicants
initiate state action. Following public notice and a two-week period for
public comment on the planned facility, the regional staff reviews the appli-
cation and within 6-8 weeks issues or denies plant approval—that is, a con-
struction permit. Following construction and subsequent state review, the
department then issues an operating permit.
Each regional office has an environmental coordinator who guides appli-
cants through the permitting process, including other state agencies where
applicable.
The Pennsylvania Department of Health may "adopt such rules, regula-
tions, standards and procedures as shall be necessary to conserve the air,
water, and land resources of the Commonwealth, protect the public health,
prevent public nuisances, and enable it to carry out [its functions]."82
This specific jurisdiction extends to facilities for the processing of solid
o q
wastes or for solid waste disposal for which the department may issue rules
H U
and regulations. However, all air pollution from facilities must be in
accordance with the regulations of the Department of Environmental Re-
sources. 5
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The Delaware River Port Authority has various powers to coordinate
ft fi
efforts with New Jersey to promote comprehensive planning. j.ne Authority
has some limited land-use powers but no specific regulatory powers to restrict
siting. In practice, most of the Authority's environmental concerns are with
water pollution. For example, a statutory provision declares that:
part of the area of the Delaware River Basin lying within this
state is hereby established and declared to be a component
part of an interstate region for the intergovernmental coopera-
tion by [cooperating states] in the conservation, protection
and development of the water resources thereof by means of
integrated plans.87
The Pennsylvania Industrial Development Authority is authorized to
assist industrial development agencies in promoting projects in critical
p Q
economic areas. These are undertaken in conjunction with the Redevelopment
H Q
Area Economic Cooperation and Implementation Act and the Industrial and Com-
mercial Development Authority Act.90 "Energy conversion facility" and "energy
producing activity" are defined in the Industrial Development Act, but the act
is aimed toward assisting with the financing rather than the siting of these
new facilities.9
The Bureau of Conservation, Economics, and Energy Planning within the
Public Utility Commission was created to conduct long-term studies of energy
supplies and demands, among other functions:
The Bureau shall review all proposals for electric and gas public
utility plant expansion and shall submit for consideration of the
commission its findings on what impact, if any, the electric and
gas public utility plant expansion will have on rates charged by
the public utility. 2
The statute is silent about siting authority.
The Uniform Interstate Air Pollution Agreements Act authorizes the
Department of Environmental Resources to cooperate and coordinate activities
with other states to reduce the effects of air pollution within regional air
masses. These cooperative activities, however, do not substantially affect
the siting of individual facilities.
FOOTNOTES
1. National Environmental Policy Act of 1969, 42 U.S.C. §4330 &t seq. (1969).
2. Ala. Code title 22, §310.
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132
3. Id. §310(18).
4. Id. §310(10).
5. Ala. Air Pollution Control Rules and Regulations §1.12.1.
6. Ala. Code §310(12).
7. Id. §310(15)(d)(3).
8. Id. §346 et seq,
9. Ala. Code title 8, §319.
10. Ala. Code title 22, §318(10).
11. Ala. Code title 44, §373(6)(q).
12. Ala. Code title 37, §814.
13. Colo. Rev. Stat. title 24, art. 7.
14. Id. §102.
15. Id. §106.
16. Id. §106(c).
17. Id. §107.
18. Id. §112.
19. Id. §115.
20. Id. §115(2).
21. Id. §125.
22. Colo. Const, art. 20.
23. Colo. Rev. Stat. title 34, art. 72, §101 et seq.
24. Id. art. 70, §101 et seq.
25. Colo. Rev. Stat. title 24, art. 32, §101 et seq.
26. Id. title 65.1, §102.
27. 111. Ann. Stat. title III 1/2, §1001 et seq.. (Smith-Kurd)
28. Id. title II, §1027(b).
29. Id. §1010.
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133
30. Id. §1029.
31. Id. §1039.
32. Id. §1028.
33. Id. §1040.
34. Id. §1035-1038.
35. Id. §1042 et seq.
36. Id. §1039(a).
37. 111. Pollution Control Board Rules and Regulations, Rule 100.
38. Id. Rule 103.
39. Id. Rule 203(e)(5), for Fuel Combustion Sources, where the standards are
applicable to a combination of fuel combustion emission sources within a
one-mile radius from the center of such combination of sources, and Rule
204(e) regarding sulfur oxide standards.
40. 111. Ann. Stat. §1046 (Smith-Kurd).
41. Id. §1047.
42. Id. ch. 127, §721 et seq.
43. Id. ch. 85, §1101 et seq.
44. Id. §1152 et seq.
45. Minn. Stat. §116.07(4)(a).
46. Id. §116.06.
47. Id. §116.07.
48. Id. §116H.07.
49. Id. §116H.02.
50. Id. §116H.13(3).
51. Id. §116H.06.
52. Id. §116C.52(4).
53. Id. §116C.53.
54. Id. §105.485.
55. Id. §104.34.
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134
56. Id. §114A.
57. Id. §114A.03.
58. Id. §175 et seq.
59. Id. §362.10.
60. Id. §458.
61. Id. §378.41.
62. Id. §N.J. Stat. Ann. title 26, ch. 2C.
63. Id. §3.2.
64. Id. §8.
65. Id. §9.2(a).
66. Id. §14.1.
67. Id. §14.
68. Id. §19.
69. Id. title 13, ch. 19, §1 et seq..
70. Id. §3.
71. Id. §4.
72. Id. §5.
73. Id. §7(a).
74. Id. §10.
75. Id. §§10(a) and 10(b).
76. Id. §11.
77. Id. §13.
78. Id. §18.
79. Id. §Pa. Const, art. 20.
80. Pa. Cons. Stat. title 35, §4006.1.
81. Id. §4013.5.
82. Id. §6001.
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83. Id. §6007.
84. Id. §6009.
85. Id.
86. Pa. Cons. Stat. title 73, §3510.
87. Id. §815.31.
88. Pa. Cons. Stat. title 73, §301 et seq.
89. Id. §333 et seq.
90. Id. §371 et seq.
91. Id. §373.
92. Pa. Cons. Stat. title 66, §458.1.
93. Pa. Cons. Stat. title 35, §4102 et seq.
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TECHNICAL REPORT DATA
(Please read Instructions on the reverse before completing)
1 REPORT NO.
EPA-450/3-78-049
2.
3. RECIPIENT'S ACCESSION-NO.
4. TITLE AND SUBTITLE
Legal Issues of Emission Density Zoning
5. REPORT DATE
September 1978
6. PERFORMING ORGANIZATION CODE
Argonne //P-7711A
7 AUTHORtS)
Martin S. Jaffa, Daniel R. Mandelker, William A.
Thomas, Deborah B. Wafer, and Felice Taub
8. PERFORMING ORGANIZATION REPORT NO.
9. PERFORMING ORGANIZATION NAME AND ADDRESS *
Energy & Environmental Systems Division
Argonne National Laboratory
Argonne, Illinois 60439
10. PROGRAM ELEMENT NO.
11. CONTRACT/GRANT NO.
EPA-IAG-D7-01157
12. SPONSORING AGENCY NAME AND ADDRESS
Environmental Protection Agency; Office of Air Quality
Planning and Standards; Strategies and Air Standards
Division; Land-Use Planning Office
Research Triangle Park, NC 27711
13. TYPE OF REPORT AND PERIOD COVERED
Final
14. SPONSORING AGENCY CODE
15. SUPPLEMENTARY NOTES
Prepared for Argonne by American Society of Planning Officials,
1313 East Sixtieth Street, Chicago, Illinois 60637
16. ABSTRACT
Emission density zoning (EDZ) is an air pollution control strategy that sets
emission limits for certain areas of land; thesse limits restrict the rate of pollu-
tant emission per unit area (such as grams per second per hectare). This report
examines legal issues involving EDZ. Many of the legal arguments applied to EDZ, and
the conclusions reached, also may be applied to other types of land-use-based emis-
sion quota strategies, such as floating zone emission quotas, jurisdictional emis-
sion quotas, and district emission quotas.
EDZ can be considered as either a land-use or air pollution control technique;
each interpretation raises different legal questions. EDZ probably would be upheld
as a valid technique under the Clean Air Act and its amendments, but modifications of
state air pollution control or land-use-management enabling legislation may be needed
to ensure implementation. EDZ also raises constitutional questions of equal pro-
tection and due process, but these issues largely depend on the particular adminis-
trative mechanisms used to implement EDZ. Legal issues also may arise if EDZ is con-
sidered a pollution dispersal rather than a pollution abatement strategy. The legal
questions concerning EDZ may best be resolved through explicit state enabling legis-
lation that clearly delegates authority to local, regional, and state agencies, and
establishes strong mechanisms for intergovernmental coordination.
17.
KEY WORDS AND DOCUMENT ANALYSIS
DESCRIPTORS
b.lDENTIFIERS/OPEN ENDED TERMS
c. COSATI Field/Group
Area Emission Allocations Planning
Land Development Regional Planning
Land Use Regulations
Land Use Zoning Urban Planning
Law (jurisprudence) Zoning
Legislation
Air Pollution Control
Air Quality Maintenance
Due Process
Emission Density Limits
Emission Density Zoning
Emission Standards
Equal Protection
18. DISTRIBUTION STATEMENT
Unlimited
19. SECURITY CLASS (ThisReport)
Unclassified
21. NO. OF PAGES
142
20. SECURITY CLASS (Thispage)
Unclassified
22. PRICE
EPA Form 2220-1 (9-73)
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