# Reply Brief — Maine v. United States Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0326%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1989 - **Citation:** 489 U.S. 1065 ## Text | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0326%3A5. Public record. Not legal advice.