Opposition Brief — Maine v. United States Environmental Protection Agency

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In the Supreme Court of the Bite Stat

; OCTOBER TERM, 1988

£

STATE OF MAINE, ET AL., PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

DONALD A. CARR

Acting Assistant Attorney General

MICHAEL A. MCCORD

Ailtorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

wn 23 18

QUESTIONS PRESENTED

Under Section 110(a)(2)(E) of the Clean Air Act, 42

U.S.C. 7410(a)(2)(E), individual State plans for imple-

menting the Act’s air quality requirements must include

provisions adequate to prohibit “any stationary source

within the State from emitting any air pollutant in

amounts which (I) will prevent attainment or maintenance

by any other State of [a national air quality] standard, or

(II) interfere with measures required to be included in the

applicable implementation plan for any other State * * *

to prever significant deterioration of air quality or to pro-

tect visibility * * *.” The questions presented are:

1. Whether Sectiofi 126(b) of the Clean Air Act, 42

U.S.C. 7426(b), which allows a State to petition the En-

vironmental Protection Agency (EPA) “for a finding that

any major source emits or would emit any air pollutant in

violation of Section 110(a)(2)(E)(i),” requires EPA to

review the adequacy of the existing state implementation

plans of all States in which sources named in the petition

are located to determine whether those sources are causing

a violation of the Act’s standards within the petitioning

State.

2. Whether EPA acted arbitrarily and capriciously in

denying the State of Maine’s Section 126(b) petition.

(I)

TABLE OF CONTENTS

Page

SE a a a ee 1

ER ee ra 1

rib aes NS sdksedas dsc teed aceecdionses l

Ee a noe ee ere 8

ee eek ee tank ea wdsadevebaees ee dees 13

TABLE OF AUTHORITIES

Cases:

Connecticut v. EPA, 656 F.2d 902 (2d Cir. 1981) ........ 12

Maine v. Thomas, 690 F. Supp. 1106 (D. Me. 1988), ap-

peal pending, No. 88-1983 (Ist Cir.) ................. 12

New York v. EPA, 710 F.2d 1200 (6th Cir. 1983) ........ 11-12

New York v. EPA, 716 F.2d 440 (7th Cir. 1983) ......... 11

Statutes:

Clean Air Act, 42 U.S.C. 7401 ef seg. ................. |

i ec ca csc casccscccesnce 2

§ 109(b)(1), 42 U.S.C. 7409(b)(1) ... 2... ee eee 2

§ 109(b)(2), 42 U.S.C. 7409(b)(2) ..... 22.22.20... 2

§ 109(d)(1), 42 U.S.C. 7409(d)(1) 2... eee eee 8

rs PID og ccc ccccccccsaccccce 8

EE di | 2,8

© Semen, Oe Wea. PORGUMMAD 2. 2. cc eees 6, 8, 11

§ 110(a)(2)(A)-(K), 42 U.S.C. 7410(a)(2)(A)-(K) .... 2

§ 110(a)(2)(E), 42 U.S.C. 7410fa)(2)(E) ............ , ee

8, 9, 10, 11

§ 110(a)(2)-(3), 42 U.S.C. 7410(a)(2)-(3) ........... 2

§ 110(a)(3), 42 U.S.C. 7410(a)(3) ................. 8

a. 2

§ 111(b)(1)(B), 42 U.S.C. 7411(b)(1)(B) ........... 8

es edb vesekseeavess 8

DE PEED sac e cnc tvveesccencss 8

EE ty) ee 8

EE kv casbaesodnsdsheesseeduss 8-9

4 Ff” liye 2, 3, 9, 10, 11

§ 126(a)(1), 42 U.S.C. 7426(a)(1) .. 2.2.2. eee. 3

(III)

IV

Statutes — Continued: Page

§ 126(a)(2), 42 U.S.C. 7426(a)(2) ....--- eee eee 3

§ 126(b), 42 U.S.C. 7426(b) .....-.-- eee eee ees 3, 4,

5, 6, 8, 9, 10, 11, 12

§ 126(c), 42 U.S.C. 7426(c) ....---- ee eee eee teers 3

§ 160-169A, 42 U.S.C. 7470-7491 .....-...-+--5+- 2

§ 169A, 42 U.S.C. 7491 ... 2... eee eee ee eee eens 12

§ 169(A)(a)(4), 42 U.S.C. 7491(a)(4) ..---------ee- 8

§ 302(j), 42 U.S.C. 7602(j) .....--- eee eee e eens: 3

§ 307, 42 U.S.C. 7607 ........- eee e eee eee eee 6

Clean Air Act Amendments, Pub. L. No. 95-95, 91 Stat.

ee ee eee g chet whe acdsee needa en eaeenn 3, 8,9

§ 406(d)(2), 91 Stat. 796... 2.6... eee eee eee ees 7

Miscellaneous:

46 Fed. Reg. 55551 (1981) ........-. 6-22 cece eee eeees 4

49 Fed. Reg. (1984):

pp. 34851-34866 ......... 2. eee eee eee eter eees 5

pp. 48152-48157 .... 2... eee eee eee ee eee eens 6

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-684

STATE OF MAINE, ET AL., PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A17)

is reported at 852 F.2d 574.

JURISDICTION

The judgment of the court of appeals was entered on

July 22, 1988 (Pet. App. C1-C2). The petition for a writ of

certiorari was filed on October 20, 1988. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Clean Air Act, 42 U.S.C. 7401 et seq., estab-

lishes a joint state and federal program to control the Na-

tion’s air pollution. The Act calls for the establishment

and achievement of primary and secondary national am-

(1)

2

bient air quality standards (NAAQS). Primary standards

are those necessary to protect public health with an ade-

quate margin of safety (42 U.S.C. 7409(b)(1)); secondary

standards are those necessary to protect the public welfare

(42 U.S.C. 7409(b)(2)). Under the Act, the Environmental

Protection Agency (EPA) is responsible for establishing

both sets of standards (42 U.S.C. 7409), but then each

State must adopt a plan providing for the “implementa-

tion, maintenance, and enforcement” of such standards

within each air quality control region within the State (42

U.S.C. 7410(a)(1)). The state implementation plans (SIPs)

must be prepared within nine months of EPA’s promul-

gation or revision of a NAAQS and must specify emission

limitations and other measures necessary to implement the

standards, including control requirements for existing

pollution sources (42 U.S.C. 7410(a)(2)(A)-(K)). EPA

reviews all initial and revised SIPs to ensure that the Act’s

requirements are met (42 U.S.C. 7410(a)(2)-(3)), and EPA

must itself promulgate a federal implementation plan for a

State that fails to submit a SIP meeting the Act’s re-

quirements (42 U.S.C. 7410(c)).

Sections 110(a)(2)(E) and 126 of the Act are concerned

with interstate air pollution. Section 110(a)(2)(E) requires

that each SIP contain measures that prohibit a “stationary

source within the State from emitting any air pollutant in

amounts which will (I) prevent attainment or maintenance

by any other State of any [NAAQS], or (II) interfere with

measures required to be included in the applicable [SIP]

for any other State under [the Act’s provisions regarding

protection of visibility on certain federal lands and the

prevention of significant deterioration (PSD) in certain

areas of high air quality}” (42 U.S.C. 7410(a)(2)(E)); see 42

U.S.C. 7470-7491 (PSD program)). Section 110(a)(2)(E)

also requires that each SIP contain measures “insuring

3

compliance with the requirements of [Section 126 (42

U.S.C. 7426)].”

Section 126, in turn, establishes procedures for identify-

ing and addressing the types of interstate air pollution pro-

scribed by Section 110(a)(2)(E). SIPs must require that

certain new sources notify nearby States of prospective in-

terstate impacts before commencing construction (42

U.S.C. 7426(a)(1)); and States must identify existing

sources that may have significantly contributed to viola-

tions of the ambient standards in other States and must

have provided “nearby” States with the identity of such

sources within three months of the enactment of the 1977

Clean Air Act Amendments (42 U.S.C. 7426(a)(2)).!

Section 126(b) establishes a procedural mechanism that

allows States and other governmental entities to petition

EPA for a finding that a “major source” 2 in another State

is Operating (or will operate) in violation of the substantive

prohibitions contained in Section 110(a)(2)(E). 42 U.S.C.

7426(b). Under Section 126(b), EPA must convene a

public hearing and render a decision within 60 days of

receipt of a petition. Section 126(c) prohibits any new or

modified source from being built or operated in violation

of the Act’s interstate requirements, and requires that ex-

isting sources found by EPA to be in violation either cease

operations within three months or submit to a schedule de-

signed to ensure compliance with conirol requirements

that eliminate the impermissible interstate pollution as ex-

peditiously as practicable.

' Pub. L. No. 95-95, 91 Stat. 685.

? A “major stationary source” is defined in Section 302(j) to “mean

any stationary facility or source of air pollutants which directly emits,

or has the potential to emit, one hundred tons per year or more of any

air pollutant * * * ” (42 U.S.C. 7602())).

|

4

2. On December 19, 1980, petitioner Commonwealth

of Pennsylvania petitioned EPA for relief pursuant to Sec-

tion 126(b), claiming that sulfur dioxide (SO2) emissions

from 38 specific sources in West Virginia and Ohio were

preventing attainment and maintenance of SO, NAAQS in

four Pennsylvania counties (Pet. App. A6, B3). Penn-

sylvania subsequently amended its petition to allege that

all major sources of SO2 and particulate matter in a five-

state region were responsible for violation of applicable

NAAQS throughout Pennsylvania (ibid.). In December

1980 and in January 1981, respondent State of New York

also petitioned EPA for relief pursuant to Section 126(b),

asserting that the conversion into sulfate particulates of

SO, emissions from 19 sources in a six-state region was

preventing New York from complying with applicable par-

ticulate NAAQS (Pet. App. A6, B3-B4). New York also

claimed that the emissions interfered with applicable visi-

bility and PSD requirements (Pet. App. B3-B4). Finally,

petitioner State of Maine filed a Section 126(b) petition in

October 1981, alleging that sulfate particulates derived

from SO; were interfering with its ability to comply with

PSD and visibility requirements (Pet. App. A7, B4).

Maine’s petition sought relief from sources in seven mid-

western States, without mentioning any emissions from

Pennsylvania, New York or any of the other eight States

located between Maine and the Midwest (ibid.).

On June 18 and 19, 1981, EPA held a public hearing on

the petitions filed by Pennsylvania and New York and,

following Maine’s subsequent filing of its petition in Oc-

tober 1981, EPA consolidated all three petitions for its

consideration (Pet. App. B4; 46 Fed. Reg. 55551 (1981)).

The three States and more than 60 other parties filed writ-

ten comments on the petitions with EPA, which on

September 4, 1984, published its proposed disposition of

ST

5

each of the petitions. See 49 Fed. Reg. 34851-34866 (see

Pet. App. BS).

EPA proposed denial of Pennsylvania’s petition on the

ground that Pennsylvania had failed to establish the pre-

requisites to relief under Section 126(b) (Pet. App. B5-B8).

EPA’s proposed findings stated that Pennsylvania’s evi-

dence was insufficient to support its claim that out-of-

state sources prevented attainment or maintenance of the

SO; NAAQS in the three areas at issue (id. at B6).3 Penn-

sylvania did not attempt to support its broader interstate

pollution claim.

EPA also proposed denial of New York’s petition, in-

cluding its claim that sulfate particulates originating from

Out-of-state sources were contributing impermissibly to

violations of particulate NAAQS in western New York

(Pet. App. B5-B6, B7-B9). EPA based its proposed denial

on, inter alia, its findings that sulfates from all sources

were responsible for only a low percentage of particulate

levels and that the claimed violations of the particulate

standard were not reliably established (id. at B7-B8).

Finally, EPA proposed denial of Maine’s petition (Pet.

App. B5-B6, B7-B9). According to EPA’s proposed find-

ings, Maine’s claims of “regional haze” fell outside the

scope of Section 126(b) because Maine had not alleged

that major sources located in other states were interfering

with visibility protection measures contained within its

SIP (Pet. App. B9). Maine’s SIP did not include visibility

measures then contained in federal regulations (ibid.).

} EPA found that in one area the modeling study predicting viola-

tions (the Cramer study) was only preliminary in view of its reliance

on emissions and meteorological data of uncertain accuracy; in the

second area no violations were predicted; and in the final area a viola-

tion was predicted at only one small site and was primarily the product

of in-state sources. See Pet. App. B6-B7.

6

Following a period of notice and comment on its pro-

posed findings, EPA published its final decision on

December 10, 1984. See 49 Fed. Reg. 48152-48157 (Pet.

App. B1-B25). EPA denied each of the three petitions,

concluding that each State had failed to demonstrate that

out-of-state sources had contributed significantly to viola-

tions of NAAQS or visibility or PSD requirements within

the petitioning State (Pet. App. B24).

3. Pursuant to Section 307 of the Clean Air Act, 42

U.S.C. 7607, petitioners and respondent New York peti-

tioned the United States Court of Appeals for the District

of Columbia Circuit for review of EPA’s denial of the

three Section 126(b) petitions. The court of appeals af-

firmed, but remanded New York’s petition for further

proceedings to allow New York to submit new data rele-

vant to a new NAAQS for particulates promulgated by

EPA in July 1987 (Pet. App. Al-A17).

The court of appeals rejected petitioners’ contention

that “the filing of their section 126(b) petitions immedi-

ately obliged EPA to take the investigatory steps necessary

to determine whether the SIPS in all named upwind states

were in compliance with § 110(a)(2)(E))” (Pet. App. A8).

The court instead agreed with the EPA Administrator that

“his responsibility to evaluate SIPs for compliance with

§ 110(a)(2)(E) is linked to his review of an otherwise re-

quired submission by a state” (Pet. App. A8). The court of

appeals explained that EPA’s construction was supported

by the language of Section 126(b), which “focuses on ‘ma-

jor sources,’ not the validity of a state’s SIP” and which re-

quires that “the Administrator take * * * action on a sec-

tion 126(b) petition very quickly” (Pet. App. A9-A10).

The court also found that the language of Section

110(a)(2), which “contains no language expressly directing

the Administrator to reevaluate existing SIPs” likewise

supports the Administrator’s view (Pet. App. A9, A10).

“When Congress has intended to establish a requirement

for direct EPA action,” the court explained, “it has said

so” (id. at Al0).4

Finally, the court of appeals concluded that EPA had

not acted arbitrarily and capriciously in denying any of the

three petitions (Pet. App. Al2-A16). The court agreed

with EPA that “[{b]ecause Maine’s claims in this pro-

ceeding concern only the problem of regional haze, Maine

has not presented any claim which falls within the ambit of

§ 126(b)” (Pet. App. Al3). The court next reviewed EPA’s

assessment of the scientific evidence relied upon by Penn-

sylvania and concluded that the EPA had not acted unrea-

sonably in finding that the evidence failed to show that

out-of-state sources contributed significantly to violations

of the Act’s standards in Pennsylvania (Pet. App.

A14-A15). Because, however, EPA had recently promul-

gated a new NAAQS for particulate matter relevant to

New York’s petition and did not object “to a remand for

submission of new data rather than dismissal with leave to

re-petition,” the court remanded New York’s petition for

that limited purpose (Pet. App. A16).

Judge Ruth B. Ginsburg joined the court’s opinion and

also filed a separate opinion (Pet. App. A16-A17). The

concurrence explained that “Congress, when it is so

minded, is fully capable of instructing the EPA to address

particular matters promptly” but “did not supply such

direction in this instance * * *.” /bid.

4+ The court also rejected petitioners’ contention that Section

406(d)(2) of the 1977 Amendments created an independent duty for

the Administrator to revise all existing SIPs. The court concluded that

“§ 406(d)(2) only sets the timetable for actions to revise an SIP ‘by

reason of any amendment made by this Act’ * * * [and] itself creates

no independent obligation to revise an SIP” (Pet. App. All).

ee

8

ARGUMENT

1. The court of appeals correctly rejected petitioners’

contention that EPA must investigate the adequacy of the

SIP of each State named in a Section 126(b) petition in

order to determine whether the SIP complies with Section

110(a)(2)(E) of the Act. Neither the relevant statutory

language nor its legislative history supports petitioners’

proffered construction; both instead support the reason-

ableness of EPA’s contrary view.

Subsections 110(a)(1) and (3) require EPA to review ini-

tial State submissions and proposed SIP revisions to en-

sure their compliance with eleven specific requirements

established by subsection (a)(2), including paragraph (E)’s

interstate air pollution requirement. Section 110(a) does

not, however, require EPA to initiate its own review of the

adequacy of existing SIPs. Nor does the language of para-

graph (E) itself suggest that EPA must undertake a “de

novo” investigation of the adequacy of all existing SIPs to

ascertain which, if any, are inconsistent with that para-

graph’s prohibition on interstate pollution.

As the court of appeals concluded (Pet. App. A10),

moreover, Congress’s failure to include such an express re-

quirement in the 1977 Clean Air Act Amendments is par-

ticularly telling because in those same amendments, Con-

gress explicitly directed the promulgation of EPA regula-

tions addressing a variety of matters, including new source

performance standards, noncompliance penalties, stack

height credit, and visibility protection requirements. 42

U.S.C. 7411(f), 7420(a), 7423(c), 7491(a)(4). Congress

also directed EPA in those same amendments to undertake

other actions, including periodic reassessments of existing

ambient standards and new source performance stand-

ards. 42 U.S.C. 7409(d)(1), 7411(b)(1)(B). Indeed, as the

court of appeals recognized (Pet. App. Al0-A11), Section

RED ce i Soe hoot

9

124 of the Act, which is entitled “Assurance of adequacy

of State plans” and was added by the 1977 Amendments,

expressly requires EPA to review the adequacy of existing

SIPs with regard to dependence by major fuel burning

sources on petroleum products and natural gas. 42 U.S.C.

7424. Hence, where Congress wanted EPA to review the

adequacy of all existing SIPs, it clearly said so.

The language of Section 126 likewise supports the Ad-

ministrator’s position. Section 126(b) directs EPA to apply

Section 110(a)(2)(E)’s prohibition of certain interstate air

pollution, but nowhere intimates that doing so requires

EPA to review all existing SIPs. It focuses on “major

source[s],” not on the adequacy of a State’s SIP, and

simply requires EPA to conduct a public hearing on a peti-

tion and to either deny the petition or make a finding of

impermissible interstate pollution “[w]ithin 60 days after

receipt of [the] petition” (42 U.S.C. 7426(b)).°

Indeed, as the court of appeals explained (Pet. App. A9,

Al0 (citation omitted)), because Section 126(b) requires

EPA to “take final action on a section 126(b) petition very

quickly” — within 60 days of the petition’s receipt —“[iJt is

reasonable to conclude that Congress did not intend that

the Administrator be required to perform all these duties

in such a short period of time in the absence of the clearest

expression.” Under petitioner’s reading of Section 126(b),

however, “the Administrator would be required to engage

in an entire array of investigative duties. In particular, the

Administrator would be required to undertake a full-scale

investigation of the adequacy of the SIPs of all states

5 Because, moreover, Section 126 directs EPA to apply only Section

110(a)(2)(E)’s “prohibition,” and does not provide that EPA must

carry Out any other requirement of that section, EPA would not have

violated Section 126—the sole basis for petitioners’ complaint — even

if a court were to conclude (contrary to our submission) that Section

110(a)(2)(E) did require EPA to review all existing SIPs.

10

named in the petition for all pollutants involved, to con-

duct whatever data-gathering and research is necessary to

either prove Petitioners’ claims or affirmatively disprove

their allegations, and to develop whatever new air pollu-

tion models are necessary to confirm or affirmatively dis-

prove Petitioners’ modeling theories, as well as conducting

a public hearing, analyzing the evidence presented by all

interested parties, proposing a determination, considering

all comments submitted and promulgating a final rule —all

within 60 days of receipt of the petition.” Pet. App.

A9-A10.°

Not surprisingly, the Act’s legislative history likewise

provides no support for petitioners’ proffered construc-

tion. There is no general reference to any affirmative duty

of the Administrator to review all existing SIPs for com-

pliance with Section 110(a)(2)(E). Nor does the legislative

history in any manner suggest that Section 126(b) imposes

an affirmative duty upon EPA to review SIPs, to engage

in an investigation, or to conduct additional studies before

rendering a decision. It is simply not plausible to suppose

that Congress, without any mention of it in the legislative

history, intended to compel EPA either to undertake the

massive task of reviewing all 55 existing SIPs for all six

ambient standards or to complete within 60 days the kind

of detailed investigation petitioners would require in re-

sponse to every Section 126 petition.

Finally, there is no merit to petitioners’ assertions (Pet.

11, 14) that EPA’s construction effectively reads Section

110(a)(2)(E) out of the Clean Air Act. Section 110(a)(2)(E)

remains a significant requirement under EPA’s view.

EPA’s review of various SIP. revisions submitted by States

¢ As the court of appeals noted (Pet. App. A10 n.2), however, there

is “the possibility of extension pursuant to section 307(d)(10), 42

U.S.C. 7607(d)(10).”

andi eaananeaniis tte senisaniiate, scatters Tan anadane

11

is an Ongoing process and under EPA’s construction Sec-

tion 110(a)(2)(E)’s prohibition on interstate air pollution

has to be satisfied for the Agency to approve of each revi-

sion. In addition, whenever a new NAAQS is promulgated

or an existing NAAQS is revised, EPA must ensure that all

SIPs and revised SIPs submitted for its review conform to

Section 110(a)(2), including paragraph (E)’s prohibition.

To be sure, petitioners believe that EPA’s review for con-

sistency with Section 110(a)(2)(E) should also be triggered

by the filing of a Section 126 petition, but Congress made

no provision for such additional review, which is why, as

Judge Ruth B. Ginsburg advised (Pet. App. A17), “[t]he

judiciary * * * is not the proper place in which to urge

alteration of the Agency’s course.”

2. Contrary to petitioners’ claim (Pet. 13-14), the

court of appeals’ decision does not conflict with the deci-

sion of any other court of appeals. In none of the cases

upon which petitioners rely, did a court of appeals hold

that EPA was required in a Section 126(b) proceeding to

investigate the adequacy of the SIPs of all States with

sources named by the petition. Indeed, in none of those

cases was a court of appeals reviewing EPA’s disposition

of a Section 126(b) petition. Each case instead involved a

challenge, rejected by the court of appeals, to EPA’s ap-

proval of a revision in another State’s SIP. The statements

regarding Section 126 made by those courts in their respec-

tive opinions, moreover, express no more than the

unremarkable proposition, not disputed by EPA or the

court of appeals’ ruling here, that Section 126(b) provides

the proper vehicle for determining whether a “major

source” or multiple “major sources” are causing interstate

air pollution that contravenes Section 110(a)(2)(E)’s pro-

hibition. See New York v. EPA, 716 F.2d 440, 445 (7th

Cir. 1983); New York v. EPA, 710 F.2d 1200, 1205 (6th

12

Cir. 1983); Connecticut v. EPA, 656 F.2d 902, 907 (2d

Cir. 1981).

3. Finally, there is likewise no merit to petitioners’

contention that the court of appeals erred in upholding

EPA’s denial of Maine’s petition (Pet. 12). The court of

appeals correctly ruled that Maine had “failed to make

even a threshold showing of entitlement under § 126(b)”

(Pet. App. Al3).

The gravamen of Maine’s arguments before EPA was

that regional haze resulting from pollution transported

from midwestern states was impairing visibility at Acadia

National Park, which is an area subject to the Clean Air

Act’s visibility protection requirements (see 42 U.S.C.

7491). See Pet. App. Al2-A13. As the court of appeals ex-

plained (id. at Al3), however, because Maine “d[id] not

allege that major sources in any other states are interfering

with visibility measures contained in its SIP —its SIP does

not contain regional haze visibility measures[ —]Maine has

failed to make even a threshold showing of entitlement

under § 126(b).” ”

7 Maine’s real complaint is that current EPA visibility protection

regulations do not contain federally enforceable measures addressing

regional haze (see Pet. 12). As the court of appeals held (Pet. Al3

n.3), however, Section 126(b) does not provide litigants such as peti-

tioners with a way to circumvent the Clean Air Act’s established pro-

cedures for challenging such EPA action (or inaction). Petitioners

tacitly concede as much in acknowledging that they have brought a

wholly separate proceeding to test “[t]he legality of this regulatory

delay” (see Pet. 13 n.8, citing Maine v. Thomas, 690 F. Supp. 1106 (D.

Me. 1988), appeal pending, No. 88-1983 (ist Cir.)).

SS Se

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

DONALD A. CARR

Acting Assistant Attorney General

MICHAEL A. MCCORD

Attorney

JANUARY 1989

-> US GOVERNMENT PRINTING OFFICE. 1989—241-699/00063