V. THE 1965 ACT
On October 20, 1965, Congress passed an act "[t]o amend the [1963 Act] to require standards for controlling emission of pollutants from certain motor vehicles ... and for other purposes" (1965 Act). (192) The 1965 Act contained two titles. (193) The first title consisted of the Amendments to the 1963 Act, and the second title consisted of the Solid Waste Disposal Act. (194) The second title became the federal law applicable to solid and hazardous waste. (195)
General Provisions and Stationary Sources
With respect to the Clean Air Act Amendments, the 1965 Act consolidated existing provisions in a new Title I and made some substantive amendments. (196) It also extended existing abatement provisions to pollution that endangers the health or welfare of persons in a foreign country, on the condition that the foreign country has given the United States essentially the same rights in that country. (197) This was a reciprocity provision for abating international air pollution that laid the roots for section 115 of the modern CAA. (198)
For stationary sources, the 1965 Act increased the authority of the Secretary in two important ways. First, it gave the Secretary a preemptive role in addressing potential problems, and not just actual ones. (199) Section 103(e) authorized the Secretary to call a conference among interested persons to deal with potential air pollution problems of substantial significance, and to ultimately make findings and recommendations to the persons causing the discharge and the relevant air pollution control agencies. (200) The 1965 Act provided that such recommendations "shall be advisory only." (201) Second, this remedy applied to air pollution subject to abatement in the 1963 Act--air pollution that "endangers the health or welfare of any persons." (202) A report by the Department in the legislative history demonstrates that this amendment was a response to a recommendation of President Johnson in a special message on natural beauty, to address "potential air pollution problems before pollution happens." (203)
The second and more significant amendment was the "Motor Vehicle Air Pollution Control Act." (204) Through the 1965 Act, Congress created a new Title II for mobile sources, establishing the structural framework for mobile sources in the modern CAA. (205) Section 202 required the Secretary to set automobile emissions standards upon a finding that vehicles or engines contribute to air pollution that endangers health or welfare. (206) This statutory language closely resembles the trigger for EPA regulation of mobile sources in the modern statute. (207) The Motor Vehicle Air Pollution Control Act required the Secretary to promulgate regulations containing standards with "appropriate consideration to technological feasibility and economic costs," a consideration favorable to the automobile industry that is also reflected in the modern statute. (208) By directing the Secretary to regulate the emission of "any kind of substance," Congress intended to include rather than exclude air pollutants. (209) The requirement applied to any substance from any class of new motor vehicles or new motor vehicle engines, reflecting a dual approach that continues today. (210)
According to the legislative history, the Department felt the technical knowledge and skills for achieving emissions reductions were now available due to California emissions requirements for cars for model year 1966. (211) By December 1964, the Department had developed a clear preference for an exclusively federal approach to the problem of air emissions from motor vehicles. (212) The Committee on Interstate and Foreign Commerce agreed with this view. (213)
Congress also recognized the importance of affording the automobile industry a period of time to come into compliance with new regulations. (214) Regulations would be effective upon the effective date specified in the order promulgating the regulations, determined by the Secretary to be a "period reasonably necessary for industry compliance." (215) In the modern CAA, this has been refined to allow for a specific lead time of four model years for heavy-duty vehicles, in order to preserve industry expectations. (216) In addition, it provides stability in the form of a statutory guarantee that the rules for heavy-duty vehicles will not change for a period of three model years following the applicability of a new standard. (217)
Congress prohibited the manufacture, sale, introduction in commerce, and importation of vehicles and engines, unless they were in conformity with Department regulations. (218) It also prohibited denying access to records and tampering with required automotive devices. (219) Congress established a procedure for refusing or deferring admission of noncompliant vehicles into the United States market. (220) The rules did not apply to new motor vehicles or new motor vehicle engines "intended solely for export," meaning that exported vehicles would not be subject to domestic standards. (221) Still, Congress created a comprehensive framework for the regulation of air emissions from automobiles and authorized the Secretary to issue regulations.
Congress backed up the law with enforcement provisions. It authorized the United States to commence actions in the federal district courts to restrain violations of the law. (222) For violations of the requirements above, it provided for a fine of not more than $1,000, and for nonrecordkeeping offenses each new motor vehicle or new motor vehicle engine would be a separate offense. (223) In 2014 dollars, this would be equivalent to approximately $7,500 for each new motor vehicle or new motor vehicle engine. (224) The creation of penalties was significant because it laid the roots for modern strict liability penalties under the CAA.
The 1965 Act was also significant because it introduced the certificate of conformity. (225) Upon application by a manufacturer, the Secretary was mandated to require the testing of a new motor vehicle or new motor vehicle engine to determine whether it conformed to regulations. (226) For a prototype that was in compliance, the Secretary was required to issue a certificate of conformity valid for at least one year. (227) To protect the business expectations of the automobile manufacturer, Congress provided that a new motor vehicle or new motor vehicle engine that was in "all material respects" substantially the same construction as the test vehicle or engine, shall be deemed to be in conformity with the regulations. (228) Refined by subsequent legislative amendments, the certificate procedure remains an important feature of the modern CAA. (229)
Congress also imposed recordkeeping requirements. It required every manufacturer to establish and maintain records and allow government access to the records. (230) At the same time, it recognized a company's right to protection of trade secrets. (231) Such provisions are important features in the modern CAA. (232) Finally, the 1965 Act contained a list of six definitions that remain substantially unchanged today. (233)
The 1965 Act authorized a modest level of federal appropriations for its Title II provisions. It authorized $470,000 for 1966, $845,000 for 1967, $1,195,000 for 1968, and $1,470,000 for 1969. (234) In 2014 dollars, this would correspond to $3,434,000 for 1966, $5,989,000 for 1967, $8,129,000 for 1968, and $9,482,000 for 1969. (235) The authorizations were not insignificant.
Within six months of the passage of the 1965 Act, the Department exercised its newly granted authority to promulgate air emissions regulations. In December 1965, it issued a Notice of Proposed Rule Making for air emissions. (236) In March 1966, it promulgated a final rule. (237) The final rule prohibited crankcase air emissions. (238) For vehicles with an engine displacement of more than 140 cubic centimeters, it imposed a numerical emissions limitation for hydrocarbons of 275 parts per million and an emissions limitation for carbon monoxide of 1.5% by volume. (239) In addition, it included regulatory requirements for the certificate of conformity, certification hearings, and a test procedure for vehicle exhaust emissions. (240)
In summary, by 1965 Congress had created a comprehensive regulatory scheme for the regulation of air emissions from cars and trucks, and authorized the Secretary to promulgate substantive air emissions regulations to effectuate that scheme. Having determined that an exclusively federal approach to motor vehicle emissions was appropriate, the Department responded by setting the first federal emissions limitations for motor vehicles.
VI. THE 1967 ACT
On November 21, 1967, Congress amended the Clean Air Act of 1963. (241) This act was also known as the Clean Air Act (1967 Act). (242) The historical context was a period of increased attention to the problem of air pollution at the federal level. (243) Structurally, the 1967 Act further shaped the statute into its modern form. Title I, "Air Pollution Prevention and Control," addressed the general problem of air pollution and the specific problem of stationary sources. (244) Title II, entitled the "National Emission Standards Act," addressed the specific problem of mobile sources. (245) Title III, "General," consolidated general provisions applicable to the first two titles. (246) As a result, the first three titles of the modern CAA were already in place prior to the 1970 amendments. (247)
General Provisions and Stationary Sources
Many sections in Title I were carryovers from previous acts, with some minor legislative changes. (248) Other changes were more significant and consequential. The first significant amendment was the requirement for the Secretary to designate air quality control regions. The 1967 Act required the Secretary to designate "atmospheric areas of the Nation on the basis of those conditions ... which...