Reply Brief — Maine v. United States Environmental Protection Agency

| Supreme Court, U.S.

FILED

No. 88-684 cee i1 1989

JOSEPH PE SPANIOL, JR.

| CLERK

In The

ews

Supreme Court of the United States

October Term, 1988

,

vr

STATE OF MAINE, COMMONWEALTH OF PENNSYLVANIA,

STATE OF CONNECTICUT, STATE OF VERMONT,

STATE OF NEW HAMPSHIRE, STATE OF NEW JERSEY,

and RICHARD L. OTTINGER,

Petitioners,

V.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and LEE THOMAS, Administrator, CINCINNATI GAS &

ELECTRIC COMPANY, et al.. MONONGAHELA POWER

COMPANY, NORTH AMERICAN COAL CORPORATION, et al.,

PEABODY HOLDING COMPANY, INC., et al.,

TENNESSEE VALLEY AUTHORITY,

Respondents.

,’

-

REPLY BRIEF FOR PETITIONERS

,%

4

THomas Y. Au James E. TreERNEY

Assistant Chief Counsel Attorney General of the

Commonwealth of Pennsylvania State of Maine

Department of Environmental

s D. N

Resources THomas D. WARREN

514 Executive House nnd gpa ——

P.O. Box 2537 ounsel of Record for

Harrisburg, Pennsylvania 17120 all Petitioners)

(717) 787-4488 Grecory W. SAMPLE

Assistant Attorney General

Office of the Attorney General

State House Station No. 6

Augusta, Maine 04333

(207) 289-3661

(Additional Counsel for Petitioners

Appear on the Following Page)

CCCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

JerFREY L. AMESTOY

Attorney General of the

State of Vermont

J. WaALLAcE MALLEY, Jr.

Assistant Attorney

General

Office of the Attorney

General

109 State Street

Montpelier, Vermont 05602

(802) 828-3171

Cary EDWARDS

Attorney General of the

State of New Jersey

Pau H. SCHNEIDER

Deputy Attorney General

Environmental Protection

Section

Richard J. Hughes Justice

Complex (CN-112)

Trenton, New Jersey 08625

(609) 292-1500

Hon. RicHarD L. OTTINGER

Pace University School

of Law

78 North Broadway

White Plains, New York

10603

(914) 681-4234

CLARINE Narp1 RIDDLE

Deputy Attorney General

(Acting Attorney

General of the

State of Connecticut)

BRIAN COMERFORD

Assistant Attorney General

State Office Building

Room 147

Hartford, Connecticut 06106

(203) 566-7213

JEFFREY R. Howarp

Deputy Attorney General! of the

State of New Hampshire

GeorcE DANA BISBEE

Senior Assistant Attorney

General

State House Annex

25 Capitol Street

Concord, New Hampshire

03301

(603) 271-3679

TABLE OF CONTENTS

Page

I oe a ae eee bb ee enea eae i

I ett ee TU cl a an wee 1

1. EPA’s Claim that the Interstate Pollution Provi-

sions Are Implemented Whenever Air Quality

Standards Are Adopted Or Revised Is False.... 1

2. The Industry Respondents’ Claim that Section

110(a)(2)(E) Compliance Has, De Facto, Been

Found by EPA Highlights the Critical Deficiency

in EPA’s Application of Section 126............ 2

NE Son .05 8 60h a 54 oa hod eae ees wh eka NER 4

TABLE OF AUTHORITIES

CLEAN Arr Act

ee ee a, OE POE bs ng cn cen cat bianvaeesdeceseees 3

SB Peeera, Se UDA. © TEIGNME) 6 onc ce cscscsees 2

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

ee es Sy OE PN oo ko os nk ohh aber e nee bewe es a3

er oe Aa PROD 6 sauces ad eessaveavases 3

REGULATIONS

ee ee ms ee GEE. FD, IG7O). wo cece cece sescssses 2

a RS Ly) 2

52 Fed. Reg. 24672 (July 1, 1987)................2005. 2

en

INTRODUCTION

Two significant arguments are presented in opposi-

tion to this Petition that were not presented to the Court

below. First, the Federal Respondents dispute the peti-

tioners’ assertion that EPA has made the Clean Air Act’s

interstate air pollution provisions effectively meaning-

less, suggesting instead that those provisions are imple-

mented through “an ongoing process” of SIP revisions.

Second, Industry Respondents argue that EPA’s disposi-

tion of the interstate petitions does constitute performance

of the statutory duty claimed by the petitioners — to

determine that the SIPs of upwind states comply with the

interstate standard of § 110(a)(2)(E) — although not in so

many words. Neither argument has merit.

1. EPA’s Claim that the Interstate Poliution Provisions

Are Implemented Whenever Air Quality Standards

Are Adopted or Revised Is False.

The Government responds to the central legal asser-

tion of the Petition — that EPA’s construction of the Clean

Air Act leaves the Act’s interstate pollution control provi-

sions virtually meaningless — by reciting three circum-

stances under which the Act’s prohibition of excessive

interstate pollution will be applied by EPA:

EPA’s review of various SIP revisions submitted by

States is an ongoing process and under EPA’s con-

struction Section 110(a)(2)(E)’s prohibition on inters-

tate air pollution has to be satisfied for the Agency to

approve of each revision. 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.

Brief of Federal Respondents, at 10-11. The first mecha-

nism holds no promise for any but the most isolated,

local cases of interstate pollution. As noted in the Petition

at 12, EPA’s determination that only new emissions need

to be evaluated in the context of a SIP revision, rather

than the combined effect of new and previously approved

emissions, has been challenged and upheld in two

Circuits.

The latter two means conceivably offer an oppor-

tunity to examine the cumulative effect of multiple emis-

sions. But contrary to the Government's assertion, EPA

has not required the States to demonstrate compliance

with § 110(a)(2)(E) on any of three occasions since 1977

when the agency has adopted or revised a NAAQS. See 43

Fed. Reg. 46264 (Oct. 5, 1978) (new lead standard); 44

Fed. Reg. 8202 (Feb. 8, 1979) (revised ozone standards);

and 52 Fed. Reg. 24672 (July 1, 1987) (revised particulate

matter standards). The suggestion in the Government's

brief of a gradual, but steady review by EPA of interstate

pollution has no basis in the agency’s own construction

of the statute.

ho

The Industry Respondents’ Claim that Section

110(a)(2)(E) Compliance Has, De Facto, Been Found

by EPA Highlights the Critical Deficiency in EPA’s

Application of Section 126.

The briefs of both groups of Industry Respondents

oppose certiorari on the new theory that EPA has effec-

tively already determined that SIPs of the upwind states

do adequately prevent interstate pollution:

(I]n the final analysis, EPA undertook precisely the

inquiry that would have governed the review of the

————————eeeerererereore

Midwestern SIPs for their conformity with

§ 110(a)(2)(E). * * * In these circumstances, even

assuming arguendo that the § 126(b) petitions were

sufficient to trigger review of the Midwestern state

SIPs, EPA’s failure to state in haec verba that those

SIPs have adequate provisions to prevent violations

of § 110(a)(2)(E) in the petitioning States was, at

worst, harmless procedural error.

Brief of Respondents Cincinnati Gas and Electric Co., et

al., at 14; see also Brief of Respondents Peabody Holding

Company, Inc., et al., at 9-10. More extreme even than the

position taken by EPA, which fails to implement

§ 110(a)(2)(E) but at least leaves the question of compli-

ance unresolved, the Industry Respondents would put

the issue to rest. But they do so only by standing

§ 110(a)(2) on its head. Rather than having the Adminis-

trator approve each SIP if he finds that it satisfies the

statutory criteria, these Respondents obtain the same

result if the Administrator merely finds that evidence

submitted by downwind states in a remedial administra-

tive proceeding is insufficient to prove the interstate cri-

terion is violated.

This logical somersault lays bare the critical defi-

ciency in EPA’s application of § 126 to these petitions: its

placement of the full burden of proof on the petitioning

states to prove violations of § 110(a)(2)(E), even in the

absence of any prior agency determination of compliance.

Thus, contrary to Cincinnati Gas’s footnote 21, the

Administrator’s allocation of the burden of proof is pre-

cisely the instrument by which the Act’s provisions to

control interstate pollution are eviscerated. Until the

Administrator accepts the same oversight responsibility

for interstate pollution that he exercises under § 110 for

intrastate pollution, the interstate provisions of the Act

will remain effectively meaningless.

s.

ll

CONCLUSION

For the foregoing reasons, and those stated in the

Petition, certiorari should be granted in this case.

Respectfully submitted,

Dated: February 10, 1989

James E. TiERNEY

Attorney General of the

State of Maine

THomaAs D. WARREN

Deputy Attorney General

(Counsel of Record for

all Petitioners)

Grecory W. SAMPLE

Assistant Attorney General

Office of the Attorney

General

State House Station No. 6

Augusta, Maine 04333

(207) 289-3661

THomas Y. Au

Assistant Chief Counsel

Commonwealth of

Pennsylvania

Department of Environmental

Resources

514 Executive House

P.O. Box 2537

Harrisburg, Pennsylvania

17120

(717) 787-4488

(Additional Counsel for Petitioners

Appear on Following Page)

JEFFREY L. AMESTOY

Attorney General of the

State of Vermont

J. WALLAcE MALLEy, Jr.

Assistant Attorney

General

Office of the Attorney

General

109 State Street

Montpelier, Vermont 05602

(802) 828-3171

Cary EDWARDS

Attorney General of the

State of New Jersey

Pau. H. SCHNEIDER

Deputy Attorney General

Environmental Protection

Section

Richard J. Hughes Justice

Complex (CN-112)

Trenton, New Jersey 08625

(609) 292-1500

Hon. RicHArRD L. OTTINGER

Pace University School

of Law

78 North Broadway

White Plains, New York

10603

(914) 681-4234

CLARINE Narpi RIDDLE

*Deputy Attorney General

(Acting Attorney

General of the

State of Connecticut)

BRIAN COMERFORD

Assistant Attorney General

State Office Building

Room 147

Hartford, Connecticut

06106

(203) 566-7213

JEFFREY R. Howarp

Deputy Attorney

General of the

State of New Hampshire

GEORGE DANA BISBEE

Senior Assistant Attorney

General

State House Annex

25 Capitol Street —

Concord, New Hampshire

03301

(603) 271-3679