Variances: The Fruits of Judicial Distrust
IN 1973 the Natural Resources Defense Council (NRDC) filed suit against the Environmental Protection Agency in six federal courts of appeal to force the agency to disapprove the variance provisions included in a large number of state implementation plans (SIPs).1 The NRDC contended that the states might use these variance provisions to delay pollution cleanup and thus make a mockery of the Clean Air Act's deadlines. The EPA replied that it had approved variance mechanisms with the understanding that specific variances would become part of a state plan only when approved by the EPA as legal plan revisions. It would not approve variances that would lead to postdeadline violations of national air quality standards. In essence the issue before the courts was whether to trust the EPA to supervise the granting of variances by the states.
The courts split into two camps on this issue. The differences in the two positions reflect the conflicting assumptions of the "old" and the "new" administrative law: the former assumes that the agency in question is conscientiously pursuing its statutory mission and checks to see that____________________