Commonwealth of Virginia v. Environmental Protection Agency, State of Connecticut, Intervenors

Opinion for the Court filed by Circuit Judge RANDOLPH.

These are consolidated petitions for review of a final rule issued by the Environmental Protection Agency under the Clean Air Act (“CAA”). The rule is aimed at reducing ozone pollution in the northeastern United States. It requires the twelve states in the region and the District of Columbia to adopt what is essentially California’s vehicle emission program. Opposing the rule, and appearing here as petitioners, are the Commonwealth of Virginia, and three associations representing automobile manufacturers and dealers. Intervening to defend the rule are the Commonwealth of Massachusetts, the States of New York, Connecticut, Rhode Island and Vermont, the City of New York, and two associations.

Petitioners believe EPA’s rule is unsupported by the record, contrary to the statute, and constitutionally defective. The evidence regarding ozone pollution, they maintain, does not support EPA’s demand for region-wide emission reductions and, in any event, the means EPA has chosen for realizing those reductions — mandating that these states prohibit the sale of new cars that do not satisfy California’s standards — is something Congress has barred the Agency from imposing. A majority of the governors of the twelve northeastern states recommended, over the objection of Virginia and other states, that EPA impose this solution. The group operated as a regional commission under a new section of the Clean Air Act, a section petitioners say is unconstitutional because it gave the commission significant legislative and executive powers without regard to the Appointments Clause of the Constitution, the non-delegation doctrine, the Joinder and Compact Clauses and other constitutional limitations. Furthermore, in petitioners’ view EPA’s interpretation of the Act renders it unconstitutional under the Tenth Amendment because it compels the states to enact and administer a federal regulatory program.

I

A

EPA believed that if the states in the Northeast passed legislation adopting the California ear program this would help alleviate the ozone hazard. Ozone (03) in the upper atmosphere was not the problem. There it absorbs harmful ultraviolet rays. Ozone at ground level is another matter entirely. It is one of the primary constituents of smog. Ozone’s three-atom arrangement is highly unstable: the third oxygen atom, in a process called oxidation, has an aggressive tendency to react with whatever substance is available. Ozone’s high reactivity, evident in the stratosphere where ozone reacts with chlorofluorocarbons, has harmful effects at ground level. Much of the ozone inhaled *1400 reacts with sensitive lung tissues, irritating and inflaming the lungs, and causing a host of short-term adverse health consequences including chest pains, shortness of breath, coughing, nausea, throat irritation, and increased susceptibility to respiratory infections. Final Rule, 60 Fed.Reg. 4712, 4712-13 (1995). “The mechanisms of ozone-induced impairment of lung function are only partly understood,” but “the effects of a single exposure to” ozone “are reversible and last up to 48” hours. Editorial, Ozone: Too Much in the Wrong Place, The Lancet, July 27, 1991, at 221. On the other hand, “[c]hronic effects that have resulted from recurrent seasonal exposure to ozone have been studied only to a limited degree. Most of the current evidence is derived from animal responses to chrome ozone exposure.” Committee ON TROPOSPHERIC OZONE FORMATION and Measurement, National Research Council, Rethinking the Ozone PROBLEM in Urban and Regional Air Pollution 33 (1991) [hereinafter National Research Council]. In addition to its direct effect on humans, excessive ozone can also damage forests and food crops.

Exactly how ozone is created and transported in the lower atmosphere, and how it decays, is a matter of extreme complexity. Ozone is not a direct pollutant. Vehicles do not emit it, and it does not billow out of smokestacks. Instead, it is formed mostly from the mixture of two chemical precursors emitted by automobiles and industry: nitrogen oxides (NOx) and a large group of hydrocarbon pollutants called volatile organic compounds (VOCs). 1 National Research Council, supra, at 153. These precursors cook in the sun — they cook best in a “sea” of warm stagnant air — and produce ozone through a complex chain of reactions. The creation of ozone can thus be seen as a seasonal phenomenon, with concentrations peaking in the summer, and as a diurnal occurrence, with concentrations peaking during the afternoon and falling during the night. The precursor- and ozone-laden air slowly moves downwind, and as the air mass moves, ozone levels often continue to increase, in part because the ozone has more time to develop, in part because the air mass picks up more precursors along the way. Ultimately, this process can bring high ozone levels to areas hundreds of miles downwind of the pollution sources.- See id. at 100. Therein lies the source of much of the difficulty in controlling it.

At the moment, dozens of areas throughout the United States have not attained the national ambient air quality standard for ozone. The standard permits a maximum one-hour average ozone concentration of 0.12 parts per million. 40 C.F.R. § 50.9. If the ambient air exceeds this standard more than once per year averaged over three years, the area is considered in “nonattainment.” Id. The ozone season of 1994 was a good one; EPA estimated that there was twelve percent less ozone than in 1985. EPA Air Quality Trends Brochure 1994 (EPA-454/F-95-003) (1995). But the warmer 1995 season was worse, with national ozone concentrations increasing four percent from 1994. EPA Air Quality Trends Brochure 1995 (EPA-454/F-96-008) (1996). According to press reports, New Jersey and Maryland each exceeded the ambient air standard fourteen times. See Northeast Ozone Problems Continue, Show Long-Term Gain, Octane WK., Oct. 9,1995, at 2.

Because of the ozone transport phenomenon, an area in nonattainment may be unable to do much about it. Even if the state implements the strictest practicable control measures, it might still fail to satisfy the ambient air standard. Across the country there are what one might call interstate ozone transport regions: around Chicago; in the region from Cleveland to Erie, Pennsylvania; in the Texas-Louisiana area; and in the northeast from Virginia to Maine, an area that became subject to special legislation in 1990.

*1401 B

The “Northeast Ozone Transport Region,” defined in the 1990 amendments to the Clean Air Act, consists of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Virginia, Vermont, and the District of Columbia. 2 To decrease ozone pollution in this “Region,” EPA promulgated the rule we have before us. Each of these states had an implementation plan, adopted after public hearings, containing measures to control air pollution, and approved by EPA under section 110. CAA § 110(a)(1), 42 U.S.C. § 7410(a)(1). EPA’s rule declared all of these implementation plans “substantially inadequate” and therefore in need of revision. Final Rule, 60 Fed.Reg. 4712, 4736 col. 2 (1995). The plans were inadequate, according to EPA, because nitrogen oxide and volatile organic compound emissions had to be reduced by 50% to 75% from a 1990 baseline “throughout” this densely populated Region to attain the national ambient air quality standard for ozone in “serious and severe areas.” Id. at 4720 col. 1. EPA acknowledged that it was “enormously complicated to determine which reductions” were needed where. Id. col. 2. But, it said, “wind trajectory data” supported the following conclusions. Id. col. 3. During the summer, ozone and emissions of precursors in the Washington, D.C. area contribute to the ozone problem in Baltimore, which lies to the northeast. Baltimore and the rest of Maryland contribute to ozone pollution in the Philadelphia area, which contributes to the problem in New York, which contributes to the problem in Boston, and so on up the Eastern seaboard from one metropolitan area to another. Id. at 4720-21. (Of course the northeastern section of the country is not some isolated island; and there are indications that western Pennsylvania receives ozone from Ohio and West Virginia.)

Congress, too, had found the entire subject very complex. In the 1990 amendments it ordered EPA, “in conjunction with the National Academy of Sciences, [to] conduct a study on the role of ozone precursors in tropospheric ozone formation and control. The study shall examine the roles of NOx and VOC emission reductions, the extent to which NOx reductions may contribute (or be counterproductive) to achievement of attainment in different nonattainment areas....” CAA § 185B, 42 U.S.C. § 7511f. One part of the study, completed in 1991, found that reducing NOx emissions can sometimes increase, rather than decrease, ambient ozone levels. See National RESEARCH Council, supra, at 11. “This seemingly contradictory prediction, that lowering NOx can, under certain conditions, lead to increased ozone, results from the complex chemistry involved in ozone formation in VOC-NOx mixtures_” Id. at 167.

Nonetheless, having declared the state plans inadequate, EPA required the states to revise their plans and enact a Low Emission Vehicle program, or LEV as the parties call it. In EPA’s words, the final rule orders “all of the northeastern states to adopt the. California car program to reduce significantly the pollution emitted by new cars and' light-duty trucks.” Final Rule, 60 Fed.Reg. at 4713 col. 1. To appreciate the rationale of this order one must understand that there are two, and only two, permissible sets of regulations limiting emissions from new cars sold in the United States. There are the California regulations; and there are the federal regulations, which preempt the laws of the other 49 states. CAA §§ 202, 209(a), 42 U.S.C. §§ 7521, 7543(a). The California standards — the “Low Emission Vehicle” standards — are considerably more restrictive than the federal standards and include ceilings on motor vehicle emission of nitrogen *1402 oxides, see 13 Cal. Admin.Code § 1960.1(f)(2), (g)(1), and volatile organic compounds, see 13 Cal. Admin.Code § 1960.1(f)(2), (g)(1), (g)(2), the two chief ozone precursors.

C

In finding the twelve state plans inadequate, and in requiring the states to adopt the California solution, EPA acted on the recommendation of the “Northeast Ozone Transport Commission,” a body established by section 184 of the Act. CAA § 184, 42 U.S.C. § 7511c. As part of the 1990 amendments, section 184 set up a panel consisting of the governors of the twelve states (and the Mayor of the District of Columbia) or their delegates. This panel, or Ozone Commission as we shall call it, was to develop, through majority vote, proposals for additional control measures for ozone pollution in the Region “necessary to bring any area in such region into attainment.” Id. § 7511c(e)(l). 3

After EPA receives a Commission proposal, EPA must “publish in the Federal Register a notice stating that the recommendations are available and provide an opportunity for public hearing within 90 days beginning on the receipt date”; “commence a review of the recommendations to determine whether the control measures in the recommendations are necessary to bring any area into attainment” with national standards; and “consult with members of the commission” and take into account data and comments received during the notice and comment process. Id. § 7511c(c)(2), (c)(3).

From the time of receiving the Commission’s recommendations, EPA has nine months: to “determine whether to approve, disapprove,” or approve in part and disapprove in part, the recommendation; to “notify the commission in writing” of the Administrator’s determination; and to “publish such determination in the Federal Register.” Id. § 7511c(c)(4). Absent complete approval, EPA must explain “why any disapproved additional control measures are not necessary to bring any area in such region into attainment ... or are otherwise not consistent with” the remainder of the Act, and must recommend “actions that could be taken by the commission to conform the disapproved portion of the recommendations to the requirements” of section 184. Id. § 7511c(c)(4)(i) & (c)(4)(H).

If EPA approves the recommendation, it must declare each state’s implementation plan inadequate and it must order the states to include the approved control measures in their revised plans pursuant to section 11000(5). CAA § 184(c)(5), 42 U.S.C. § 7511c(c)(5). Failure to heed EPA’s order unleashes a panoply of sanctions upon the noncomplying state. We will have more to say on the subject of sanctions later in the opinion.

EPA’s final rule in this case resulted from the section 184 process just described. In August 1993, Maine, Maryland, and Massachusetts petitioned the Ozone Commission to adopt a recommendation calling for the application of the California Low Emission Vehicle program throughout the Region. See Notice of Availability, 59 Fed.Reg. 12,914, 12,915 col. 1 (1994). After holding several “public forums,” and a hearing, the Commission voted on February 1, 1994, “to recommend that EPA mandate the California” vehicle program “throughout the” Region. Id. A minority of Ozone Commission members— those from Virginia, Delaware, New Jersey, and New Hampshire — voted against the recommendation. See id. On February 10, *1403 1994, the Commission submitted the recommendation to EPA Id. at 12,914 col. 1.

In its final rule, EPA approved the Commission’s recommendation. 60 Fed.Reg. at 4713 col. 1. Therefore, as section 184(c)(5) required, EPA found “that the State Implementation Plans” for the twelve states in the Region “are substantially inadequate to comply with the requirements of section 110(a)(2)(D) of the Clean Air Act, 42 U.S.C. § 7410(a)(2)(D), and to mitigate adequately the interstate pollutant transport described in section 184 of the Clean Air Act, 42 U.S.C. § 7511c, to the extent that they do not provide for emission reductions from new motor vehicles in the amount that would be achieved by the” Low Emission Vehicle program. Final Rule, 60 Fed.Reg. at 4736 col. 2 (to be codified at 40 C.F.R. § 51.120(a)).

D

EPA purported to offer the states an alternative to enacting the California program. Instead of restricting the type of new cars sold within its jurisdiction, a state may choose its own mix of programs. To be an acceptable “Substitute Program,” however, it must reduce ozone precursors anywhere from 3.5 to 6.5 times more than would the California program. See infra part II.A 4

II

Of petitioners’ many challenges , to EPA’s rule, one is aimed at something known in Clean Air Act parlance as a “SIP call”— EPA’s declaration that a state’s implementation plan is substantially inadequate and must be revised. Virginia maintains that the record does not support the SIP call to it. If Virginia is correct, EPA’s regulation requiring Virginia to adopt the California car program would fall. However, the issues raised by the other petitioners — the automobile manufacturers and dealers — reach beyond Virginia. If the states implement the California program in response to EPA’s rule, these petitioners claim their members will be adversely affected throughout the Northeast Region as new car price increases take effect. 5 Furthermore, it is not clear whether EPA would have issued a SIP call to any state if EPA knew it lacked a legal basis for requiring the California program. We therefore think it best to start our analysis with questions other than the SIP call, questions relating mainly to EPA’s statutory authority.

We will discuss those questions in this order and explain why we have reached the following conclusions.. First, did EPA condition its approval of a state’s revision of its *1404 implementation plan on the state’s adoption of the California program? We think the answer is yes. Second, does section 110 give EPA the authority to condition approval of a state’s plan on the state’s adoption of control measures EPA has chosen? We conclude that section 110 does not give EPA this authority. Third, does section 184 authorize EPA to so condition its approval of plan revisions? We believe the answer is yes. Fourth, did other provisions of the Clean Air Act nevertheless bar EPA from ordering states to enact the California program? We hold that EPA was so barred and that this portion of its final rule is therefore invalid.

A

Did EPA condition approval of a state’s revised implementation plan on the state’s adoption of the California ear program? EPA tells us it did not because it offered the states a choice — they could either enact the California program or submit a “Substitute Program.” It turns out, however, that EPA’s alternative is no alternative at all.

Having determined that, at a minimum, 50 percent reductions of each precursor are necessary to bring each northeastern state into ozone attainment, 60 Fed.Reg. at 4718 col. 3, EPA required any Substitute Program to reduce precursor emissions by the difference between that 50 percent and the percentage reduction “achievable through implementation of all of the Clean Air Act-mandated and potentially broadly practicable control measures,” id. at 4737 col. 2 (to be codified at 40 C.F.R. § 51.120(d)(1) & (d)(2)). The phrase “potentially broadly practicable control measures” refers to other options — “those control measures that could potentially render the” California program “unnecessary in the” Northeast. Supplemental Notice, 59 Fed. Reg. at 48,678 col. 2. EPA has calculated that “potentially broadly practicable control measures” yield a 35.9 percent reduction in nitrogen oxides 6 and a 37 percent reduction in volatile organic compounds. Final Rule, 60 Fed.Reg. at 4722. Since none of those options (taken individually or cumulatively) could produce the necessary 50 percent reduction for precursors, EPA takes the position that all the measures are necessary, and presupposes that those measures will be included in state implementation plans submitted sometime in the future. Id. at 4723 col. 3.

Thus, a state that chooses not to adopt the California program must legislate a state implementation plan containing measures to make up this “shortfall” — the difference between the 50 percent reductions EPA says is necessary and the 35.9 percent and 37 percent that it has already targeted for nitrogen oxides and volatile organic compounds, respectively. Virginia or any other state seeking to implement a program not involving California vehicles, therefore, must pass legislation or issue regulations or orders reducing nitrogen oxide production in the year 2005 by 14.1 percent (50 percent minus 35.9 percent), and volatile organic compound production by 13 percent (50 percent minus 37 percent).

In contrast, the California program, by 2005, reduces' nitrogen oxides by 4 percent, and volatile organic compounds by 2 percent. Supplemental Notice, 59 Fed.Reg. at 48,683 col. 1. States adopting the California program need legislate nothing more. 7 Virginia, *1405 therefore, must reduce nitrogen oxides 3.5 times (14.1%/4%) and volatile organic compounds 6.5 times (13%/2%) more than do states that pass legislation incorporating the California program, and Virginia must do so by means EPA has already concluded are not practicable. 8 In sum, the Substitute Program is expected to solve a shortfall EPA itself has no idea how to remedy, a shortfall states enacting the California program are not expected to make up.

Of course, only a very foolish state would see EPA’s offer to accept this Substitute Program as a real alternative. EPA conceded as much. No state, EPA recognized, “would seriously entertain unreasonable or impracticable measures to adopt in place of the” California program “in order to achieve the necessary emissions reductions.” Supplemental Notice, 59 Fed.Reg. at 48,672 col. 2. As a practical matter, then, EPA “require[d] all the northeastern states to adopt the California car program.” Final Rule, 60 Fed.Reg. at 4713 col. 1. And that is how we shall treat the rule.

B

Does section 110 give EPA the authority to condition approval of a state’s plan on the state’s adoption of control measures EPA has chosen? EPA’s discovery that section 110 gave it this authority came late in the rulemaking proceedings. The Ozone Commission, acting pursuant to section 184, started the ball rolling. It forced ozone pollution in the Northeast to the forefront of EPA’s agenda. In EPA’s Notice of Proposed Rulemaking, the agency therefore naturally treated section 184 as the sole source of its authority to approve or disapprove the Commission’s recommendation. See 59 Fed. Reg. 21,720, 21,720-21 (1994).

The agency shifted its position after automobile manufacturers and dealers began questioning the constitutionality of section 184. See Supplemental Notice, 59 Fed.Reg. at 48,670 col. 1 & n.ll. In response to the proposed rule, some argued that EPA deference to the Ozone Commission’s technical and policy judgments would violate the Appointments Clause of the Constitution 9 and the nondelegation doctrine. Commenters also complained that the Joinder and Compact Clauses 10 prevented a multi-state alliance such as the Ozone Commission from exercising significant power. And they maintained that the proposed rule forcing the California program on the states would violate the Tenth Amendment because it would “‘commandeer’ state governments into the service of federal regulatory purposes, and would for this reason be inconsistent with the Constitution’s division of authority between federal and state governments.” New York v. United States, 505 U.S. 144, 175, 112 S.Ct. 2408, 2428, 120 L.Ed.2d 120 (1992).

In response to these comments, EPA issued a süpplemental notice stating that the arguments against section 184’s constitutionality lacked “merit,” and that “in any case, given EPA’s independent authority under section 110(k)(5), any constitutional question *1406 regarding the validity of section 184 would not affect the validity of the” proposed rule. Supplemental Notice, 59 Fed.Reg. at 48,670 col. 1. And so, not only section 184, but also section 110 supposedly provided the legal basis for EPA’s action.

C

Enacted more than a quarter of a century ago, section 110 has gone through many changes, but its basic structure has survived. The provision has been the subject of dozens of appellate court decisions. Yet we are aware of no ease (EPA has cited none) supporting the proposition EPA now urges upon us, namely, that under section 110 EPA may condition approval of a state’s implementation plan on the state’s adopting a particular control measure, here the California Low Emission Vehicle program. Despite the volumes of legislative history on the Clean Air Act and its amendments, EPA has offered no committee reports, no statements on the floor of either house, suggesting that anyone in Congress ever shared its view of section 110. Nor has EPA given us reason to believe that it has followed any consistent, longstanding practice of using section 110 to force states to adopt control measures of EPA’s choosing. The final rule provides no explanation of why EPA read section 110 as it did. The rule contains only this bare conclusion: “EPA disagrees with comments claiming that EPA lacks” authority “because section 110 does not authorize EPA to require states to adopt specific measures.... ” Final Rule, 60 Fed.Reg. at 4717 col. 1. EPA’s brief offers little more. We are told the “plain language” of the statute gives EPA this authority, and even if the language is not so plain, EPA’s reading is reasonable and deserves our deference. Final Brief for Respondent at 34. We are not persuaded, and therefore do not reach Virginia’s contention that EPA’s interpretation would render section 110 unconstitutional, in violation of the Tenth Amendment.

Congress added section 110 to the Clean Air Act in 1970. See Clean Air Amendments of 1970, Pub.L. No. 91-604, § 4, 84 Stat. 1676,1680-81 (1970). It has remained one of the key provisions of the Act. The Act authorizes EPA to promulgate national ambient air quality standards for ozone and five other pollutants. CAA §§ 108 & 109, 42 U.S.C. §§ 7408 & 7409. Areas that do not meet the minimum level of air quality mandated by these national standards are considered to be “nonattainment areas.” CAA §§ 107(d) & 171(2), 42 U.S.C. §§ 7407(d) & 7501(2). The degree of nonattainment is classified as marginal, moderate, serious, severe, or extreme. CAA § 181(a), 42 U.S.C. § 7511(a).

If a state has an area within it that EPA has classified as being in nonattainment with respect to ozone (or one of the five other regulated pollutants), the state must devise and implement a “state implementation plan” (“State Plan”). Section 110 governs the interplay between the states and EPA with respect to the formulation and approval of such State Plans. 42 U.S.C. § 7410. The basic procedure is that “each state determines an emission reduction program for its nonattainment areas, subject to EPA approval, within deadlines imposed by Congress.” Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C.Cir.1995).

Should a state fail to submit an implementation plan, or should its plan fail to provide the required reductions in air pollution, certain penalties — some mandatory, others at EPA’s discretion — may follow. See generally Commonwealth of Virginia v. United States, 74 F.3d 517, 520 (4th Cir.1996); Natural Resources Defense Council, 57 F.3d at 1123-25 & n. 5. The noncomplying state may, for instance, be prevented fipm spending federal highway money in nonattainment areas. See CAA §§ 110(m), 176(c) & 179(b)(1); 42 U.S.C. §§ 7410(m), 7506(c) & 7509(b)(1). This sanction becomes mandatory if the state fails to implement an adequate State Plan within 24 months of EPA’s finding that the state’s proposed plan is deficient. CAA § 179(b)(1), 42 U.S.C. § 7509(b)(1). At that same point, EPA must impose a “federal implementation plan” (“Federal Plan”) on those areas of the state in nonattainment. CAA § 110(c), 42 U.S.C. § 7410(c). The Federal Plan “provides an additional incentive for state compliance because it rescinds state authority to make the many sensitive and policy choices that a pollution control' *1407 regime demands.” Natural Resources Defense Council, 57 F.3d at 1124.

Section 110(a)(2), the' predecessor to the current section 110(k)(5), spelled out the extent of EPA’s authority over state implementation plans within this structure. 11 When enacted in 1970, the relevant portion of section 110(a)(2) read:

The Administrator shall, within four months after the date required for submission of a plan under paragraph (1), approve or disapprove such plan, or each portion thereof. The Administrator shall approve such plan, or any portion thereof, if he determines that it was adopted after reasonable notice and hearing and that—

* * *

(H) it provides for revision, after public hearings, of such plan (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of achieving such primary or secondary standard; or(ii) whenever the Administrator finds on the basis of information available to him that the plan is substantially inadequate to achieve the national ambient air quality primary or secondary standard which it implements.

42 U.S.C. § 1857e-5(a)(2)(H) (1970) (emphasis added). At the time, section 110(a)(3) required EPA to review a state’s revisions to its plan — which is what EPA is calling for here — by the same criteria EPA used to judge the original plan. 42 U.S.C. § 1857c-5(a)(3) (1970). In 1970 as now, if a state failed to submit a plan, or if the plan did not satisfy section 110(a)(2), EPA had a non-discretionaiy duty to implement the Act through a federal implementation plan. CAA § 110(c), 42 U.S.C. § 1857e-5(c) (1970).

In 1975, the Supreme Court analyzed section 110’s “division of responsibilities” between the states and the federal government. Train v. Natural Resources Defense Council, 421 U.S. 60, 79, 95 S.Ct. 1470, 1482, 43 L.Ed.2d 731 (1975). The narrow issue in Train was whether states could use section 110(a)(3) to seek “revisions” of State Plans in order to ease limits on a single pollution source, in essence circumventing section 110(f), which restricted the circumstances under which such a “variance” could be granted. A state could, the Court held, use section 110(a)(3) for such a purpose so long as the revised plan would still enable the state to attain and maintain national ambient standards. Train, 421 U.S. at 72, 95 S.Ct. at 1478.

A “broader issue,” the Court thought, was at stake in the case — namely, “whether Congress intended the States to retain any significant degree of control over the manner in which they attain and maintain national standards.” Id. at 78, 95 S.Ct. at 1481. The Act expressly gave the states initial responsibility for determining the manner in which air quality standards, were to be achieved. See id. at 64, 95 S.Ct. at 1474-75. Section 107(a) of the Act read then, as it does now: “Each State shall have the primary responsibility for assuring air quality within the entire geographic area comprising such State by submitting an implementation plan which will specify the manner in which national primary and secondary ambient air quality standards will be achieved and maintained within each air quality control region in such State.” CAA § 107(a), 42 U.S.C. § 7407(a) (emphasis added). In light of section 107(a), the Court construed section 110:

The Act gives the Agency no authority to question the wisdom of a State’s choices of emission limitations if 'they are part of a plan which satisfies the standards of § 110(a)(2), and the Agency may devise and promulgate a specific plan of its own *1408 only if a State fails to submit an implementation plan which satisfies those standards. § 110(e). Thus, so long as the ultimate effect of a State’s choice of emission limitations 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, 421 U.S. at 79, 95 S.Ct. at 1482. The Supreme Court repeated this interpretation in Union Electric Co. v. EPA, 427 U.S. 246, 96 S.Ct. 2518, 49 L.Ed.2d 474 (1976): section 110 left to the states “the power to determine which sources would be burdened by regulations and to what extent.” Id. at 269, 96 S.Ct. at 2531. To be sure, if EPA rejected a State Plan because it would not achieve or maintain ambient air quality standards, EPA could promulgate a federal implementation plan. But even then, as EPA admitted in confessing error in the Supreme Court, section 110 did not permit the agency to require the state to pass legislation or issue regulations containing control measures of EPA’s choosing. EPA v. Brown, 431 U.S. 99, 103, 97 S.Ct. 1635, 1636-37, 52 L.Ed.2d 166 (1977) (per curiam).

In 1977 Congress again amended the Act, changing some parts of section 110. 12 But these changes did not modify the “division of responsibilities” Train had discerned in the Act. EPA’s later administrative efforts to alter the balance were therefore firmly rebuffed. Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028 (7th Cir.1984), held that EPA could not, under the guise of partially approving a state implementation plan, render the plan more stringent than the state intended. If EPA wanted to impose stricter regulations, the Clean Air Act gave it the option of implementing a federal plan. The court explained:

[T]he Clean Air Act creates a partnership between the states and the federal government. The state proposes, the EPA disposes. The federal government through the EPA determines the ends — the standards of air quality — but Congress has given the states the initiative and a broad responsibility regarding the means to achieve those ends through state implementation plans and timetables of compli-ance_ The Clean Air Act is an experiment in federalism, and the EPA may not run roughshod over the procedural prerogatives that the Act has reserved to the states, ... especially when, as in this case, the agency is overriding state policy.

Id. at 1036-37. Florida Power & Light Co. v. Costle, 650 F.2d 579 (5th Cir.1981), is to the same effect. EPA’s “attempting to require Florida to include” a particular provision in its State Plan was “clearly an abuse of discretion; it is agency action beyond the Congressional mandate,” action that would “usurp state initiative in the environmental realm,” and “disrupt the balance of state and federal responsibilities that undergird the efficacy of the Clean Air Act.” Id. at 587, 589.

Thus, as section 110 stood in 1975 when the Supreme Court decided Train and as it stood after the 1977 amendments, the provision did not confer upon EPA the authority to condition approval of Virginia’s implementation plan, or the plan of any other state, on the state’s adoption of a specific control measure. EPA “identifies the end to be achieved, while the states choose the particular means for realizing that end.” Air Pollution Control Dist. v. USEPA 739 F.2d 1071, 1075 (6th Cir.1984). The validity of EPA’s argument that it now has broader authority depends, therefore, on whether the 1990 Clean Air Act Amendments eliminated the “liberty” every state had under the earlier *1409 legislation “to adopt whatever mix of emission limitations it deems best suited to its particular situation.” Train, 421 U.S. at 79, 95 S.Ct. at 1482.

The 1990 amendments were the most comprehensive since 1970, but the changes to section 110, at least as they concern EPA’s approval of State Plans, were predominantly of syntax, not substance. Section 110(a)(2)(H)(ii), as amended, requires each State Plan to “provide for revision” not only when EPA finds the plan “substantially inadequate to attain” national ambient standards, but also when EPA finds that the plan does not “otherwise comply with any additional requirements established under this chapter.” CAA § 110(a)(2)(H)(ii), 42 U.S.C. § 7410(a)(2)(H)(ii).

Also in the 1990 law, Congress repealed section 110(a)(3)(A), a provision requiring the Administrator to approve a State Plan revision meeting the (a)(2) criteria. The language of the repealed subsection was moved to a new subsection (k), so that the new section 110(k)(3) imposed the same obligation upon the Administrator to approve plans satisfying the (a)(2) requirements: “In the case of any” State Plan submission or revision, “the Administrator shall approve such sub-mittal as a whole if it meets all of the requirements of this chapter.” Id. § 7410(k)(3).

The 1990 amendments added subsection (k)(5), on which EPA relies in this ease. Like the original section 110(a)(2)(H)(ii), this new section 110(k)(5) gave EPA authority to require states to revise their plans if they have failed to attain or maintain national ambient air quality standards. 42 U.S.C. § 1857c-5(a)(2)(H)(2) (1970); 42 U.S.C. § 7410(k)(5) (1994). So far as EPA’s authority is concerned, the new subsection merely duplicated the language in the 1970 version of section 110(a)(2)(H)(ii). The first two sentences of section 110(k)(5) now read:

Whenever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to attain or maintain the relevant national air quality standard, to mitigate adequately the interstate pollution transport described in [CAA sections 176A or 184] or to otherwise

comply with any requirement of this Act, the Administrator shall require the State to revise the plan as necessary to correct such inadequacies. The Administrator shall notify the State of the inadequacies, and may establish reasonable deadlines (not to exceed' 18 months after the date of such notice) for the submission of such plan revisions.

42 U.S.C. § 7410(k)(5).

The main differences between this portion of subsection (k)(5) and the original section 110(a)(2)(H)(ii) are that EPA may set the timetable for a state to revise its plan, and that a plan’s failure “to mitigate adequately the interstate pollution transport described in” sections 176A or 184 may trigger the need for revision. Neither of these differences, however, amounts to a new grant of authority to EPA to require states to insert in their plans control measures EPA has selected. The original act, interpreted in Train v. Natural Resources Defense Council,