Petition — Hancock v. Train

Supreme Court brief1976

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FILED

sFP 3 1974

MICHAEL RODAK, JR..CLERK

STATES

SUPREME COURT OF THE UNI

OCTOBER TERM, 1974

No. Y4—_22()

COMMONWEALTH OF KENTUCKY, EX REL

ED W. HANCOCK,

ATTORNEY GENERAL, .................. PETITIONER,

versus

KUSSELL E. TRAIN, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION.

AGENCY, ET AL ............5 ce eeuee, RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ED W. HANCOCK

ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

Room 114, Capitol Building

Frankfort, Kentucky 40601

Telephone (502) 564-7600

DAVID C. SHORT

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

DAVID D. BEALS

ASSISTANT ATTORNEY GENERAL

COMMONWEALTH OF KENTUCKY

Room 26, Capitol Building

Frankfort, Kentucky 40601

Telephone (502) 564-3595

COUNSEL FOR PETITIONER.

TABLE OF CONTENTS

POP GPE oc cues scevescesenscne iii-iv

er AEE 2 Gdns on 0:06 4 kd6bb ewewsenenes

SEE 55 wick 446 420 nb 605 4d 6Eb dw ESSA

eye es Ry yy >) ee

1. WHETHER THE COURT OF APPEALS FOR

THE SIXTH CIRCUIT ERRED IN FINDING

THAT AIR CONTAMINANT SOURCES OWN-

ED, OPERATED, OR CONTROLLED BY THE.

FEDERAL GOVERNMENT WERE SUBJECT

ONLY TO ACTIONS UNDER §304 OF THE

CLEAN AIR ACT AMENDMENTS OF 1970, 42

CS REE OSES pe

II. WHETHER THE COURT OF APPEALS FOR

THE SIXTH CIRCUIT ERRED IN FAILING TO

FIND THE PERMIT REQUIREMENT CONTAIN-

ED IN KENTUCKY’S IMPLEMENTATION PLAN

FOR THE ATTAINMENT AND MAINTENANCE

OF NATIONAL AND STATE AMBIENT AIR

QUALITY STANDARDS WAS A REQUIREMENT

RESPECTING CONTROL AND ABATEMENT OF

AIR POLLUTION WITHIN THE MEANING OF

§118 OF THE CLEAN AIR ACT AMENDMENTS

GP 1070, 4B UBL. GROSS? 2. cccccccccccccccccccces :

III. WHETHER THE COURT OF APPEALS FOR

THE SIXTH CIRCUIT ERRED IN RULING

THAT THIS ACTION WAS BARRED BY THE

DOCTRINE OF SOVEREIGN IMMUNITY AND

THE SUPREMACY CLAUSE? .................445:

TABLE OF CONTENTS (Continued)

Page

IV. WHETHER THE JUDGMENT RENDERED BY

THE COURT OF APPEALS FOR THE SIXTH

CIRCUIT WILL BE A SERIOUS HINDRANCE

TO THE EFFECTIVE ADMINISTRATION OF

THE CLEAN AIR ACT, AS AMENDED, 42 U.S.C.

"LS FERRER ree 3

STATUTORY PROVISIONS INVOLVED ........ 4

SEAT Memes CO} Tie CARE ccccsccccccccecs 4-5

REASONS FOR GRANTING THE WRIT ..... 6-22

ERED osu cbdbcendcecess apenssesnne 22-24

CERTIFICATE OF SERVICE ..........0cs00. 25-27

APPENDICES:

A. Memorandum and Order, United States Dis-

trict Court, For the Western District of

Kentucky, Louisville, Kentucky, Rendered

August 10, 1973, Entered August 13, 1973.

fs FF ey rrr la-2la

B. Opinion, United States Court of Appeals For

the Sixth Circuit, June 5, 1974. ........ 22a-35a

C. Clean Air Act as amended, 42 U.S.C. §1957, et

Seq.; and Kentucky Administrative Regula-

ad Ae, BO Be ccc cuve cveevcees 36a-46a

iii

INDEX TO CITATIONS

CASEs: Page

Baltimore National Bank v. State Tax Commis-

sioner, 297 U.S. 204 (1936) ..........006- 21

Ex Parte Collett,

337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207,

a es GO. Ces CUD 6 ec 6 ENS eivccese 11

Larson v. Domestic and Foreign Commerce

Corporation, 337 U.S. 682 (1949) ........ 22

Perez et ux v. Campbell,

Ge Bs GE CHUTES ehcvecsiediscccveces 22

62 Cases, More Or Less, Each Containing Six

Jars of Jam v. United States,

340 U.S. 593, 71 S.Ct. 515, 95 L.Ed. 566

FE SEs: DEED ovevccedvcceussecceces 9

STATUTES:

Title 42, Section 1857., U.S.C. ........e.eeeees 3

Title 42, Section 1857(a), U.S.C. ............. 12

Title 42, Section 1857(b), U.S.C. ............. 12

Title 42, Section 1857c-2, U.S.C. ........... 4,13

Title 42, Section 1857c-5, U.S.C. ........... 4,13

Title 42, Section 1857c-8 U.S.C. ........ cee eees 4

Title 42, Section 1857d-1, U.S.C. ............ 4,7

Title 42, Section 18577., U.S.C. ......... 3, 4, 5,6

Title 42, Section 1857h-2, U.S.C. .... 3,4, 5, 6, 16

INDEX TO CITATIONS (Continued)

STATUTES : Page

Bi Sent. 465 .. uc vncséevesus see 4

R64 Sent. BGR, BD «sc ccvccceuee ene 4

RS Sent. 466 ...cceceeccececenee ae 4

R4 Seat. 1609, 1G, LFGO occ doce ce teeee ee 4

OTHER REFERENCES:

The Air Quality Act of 1967, Section 111,

PL. FOES .. vcs cosntess eee 10

Kentucky Air Pollution Control Commission

\dministrative Regulation

AP-1I, Section 5 ..ccccucseecnaue 4,16

-—--

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No.

COMMONWEALTH OF KENTUCKY, EX REL

ED W. HANCOCK, ATTORNEY GENERAL,...... PETITIONER,

versus

RUSSELL E. TRAIN, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY; JACK E. RAVAN, REGIONAL

ADMINISTRATOR, REGION IV, ENVIRONMENTAL

PROTECTION AGENCY; ENVIRONMENTAL PROTECTION

AGENCY; GENERAL CREIGHTON ABRAHAMS, CHIEF OF

STAFF, UNITED STATES ARMY, UNITED STATES OF

AMERICA; ROBERT F. FROEHLKE, SECRETARY,

DEPARTMENT OF THE ARMY, UNITED STATES OF

AMERICA; MAJOR GENERAL W. R. DESBORY,

COMMANDER GENERAL, UNITED STATES ARMY ARMOR

CENTER AND FORT KNOX; MAJOR GENERAL JOHN

CUSHMAN, COMMANDING GENERAL, 10ist AIRBORNE

DIVISION (AIRMOBILE) AND FORT CAMPBELL;

COLONEL ERNEST A. VULEY, JR., COMMANDING

OFFICER, LEXINGTON-BLUEGRASS ARMY DEPOT,

DEPARTMENT OF THE ARMY; DEPARTMENT OF THE

ARMY, UNITED STATES OF AMERICA; AUBREY J.

WAGNER, CHAIRMAN, BOARD OF DIRECTORS,

TENNESSEE VALLEY AUTHORITY; LYNN SEEBER,

GENERAL MANAGER, TENNESSEE VALLEY AUTHORITY;

J. L. McPHERSON, SUPERINTENDENT, SHAWNEE

POWER PLANT, TENNESSEE VALLEY AUTHORITY;

T. E. CAVANISS, SUPERINTENDENT, PARADISE POWER

PLANT, TENNESSEE VALLEY AUTHORITY; TENNESSEE

VALLEY AUTHORITY; JAMES R. SCHLESSINGER,

CHAIRMAN, BOARD OF DIRECTORS, ATOMIC ENERGY

COMMISSION; ROBERT E. HOLLINGSWORTH, MANAGER,

ATOMIC ENERGY COMMISSION; B. W. STILLER, MANAGER,

PADUCAH GASEOUS DIFFUSION PLANT, ATOMIC ENERGY

COMMISSION; UNION CARBIDE CORPORATION, A NEW

YORK CORPORATION; ATOMIC

ENERGY COMMISSION ...........- eeeseseces RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The petitioner Commonwealth of Kentucky, ex

rel Ed W. Hancock, Attorney General, prays that a

Writ of Certiorari issue to review the Judgment of

the United States Court of Appeals For the Sixth

Circuit rendered in these proceedings on June 5, 1974.

OPiNIONS BELOW

The opinion of the United States Court of Ap-

peals for the Sixth Circuit, as yet unreported, appears

at Appendix A, infra, pp la-2la. The opinion of the

United States District Court for the Western District

of Kentucky is reported at 362 F. Supp. 260 (1973),

and appears at Appendix B, infra, pp 22a-35a.

JURISDICTION

The Judgment of the Court of Appeals for the

Sixth Circuit (Appendix A, infra, pp la-2la) was

entered on June 5, 1974. This Petition For Writ of

Certiorari was filed less than ninety days from the

date aforesaid. The jurisdiction of this Court is in-

voked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

The jurisdiction of the District Court was invoked

because the question arose under the Clean Air Act,

as amended, 42 U.S.C. §1857, et seq., a Federal statute

relating to the environment. The questions with re-

spect to this statute presented in this Petition for Writ

of Certiorari are as follows:

I. WHETHER THE COURT OF APPEALS FOR THE

SIXTH CIRCUIT ERRED IN FINDING THAT AIR

CONTAMINANT SOURCES OWNED, OPERATED,

OR CONTROLLED BY THE FEDERAL GOVERN-

MENT WERE SUBJECT ONLY TO ACTIONS UNDER

§304 OF THE CLEAN AIR ACT AMENDMENTS OF

1970, 42 U.S.C. §1857h-2? .

II. WHETHER THE COURT OF APPEALS FOR THE

SIXTH CIRCUIT ERRED IN FAILING TO FIND THE

PERMIT REQUIREMENT CONTAINED IN KEN-

TUCKY’S IMPLEMENTATION PLAN FOR THE AT-

TAINMENT AND MAINTENANCE OF NATIONAL

AND STATE AMBIENT AIR QUALITY STANDARDS

WAS A REQUIREMENT RESPECTING CONTROL

AND ABATEMENT OF AIR POLLUTION WITHIN

THE MEANING OF §118 OF THE CLEAN AIR ACT

AMENDMENTS OF 1970, 42 U.S.C. §1857f?

III. WHETHER THE COURT OF APPEALS FOR THE

SIXTH CIRCUIT ERRED IN RULING THAT THIS

ACTION WAS BARRED BY THE DOCTRINE OF

SOVEREIGN IMMUNITY AND THE SUPREMACY

CLAUSE?

IV. WHETHER THE JUDGMENT RENDERED BY THE

COURT OF APPEALS FOR TI'E SIXTH CIRCUIT

WILL BE A SERIOUS HINDRANCE TO THE EF-

FECTIVE ADMINISTRATION OF THE CLEAN AIR

ACT, AS AMENDED, 42 U.S.C. §1857, ET SEQ.?

STATUTORY PROVISIONS INVOLVED

This case involves Section 101, Section 107, Sec-

tion 110, Section 113, Section 116, Section 118, and

Section 304 of the Clean Air Act Amendments of 1970;

81 Stat. 485, 84 Stat. 1678, 1680, 85 Stat. 464, 84 Stat.

1689, 1689, 1706; 42 U.S.C. §1857., §1857c-2, §1857c-

5, §1857c-8, $18357d-1. $1857f.. and §1857h-2. Also in-

volved is Kentucky Administrative Regulation AP-1

$5. also promulgated in Chapter 7 of Kentucky’s Im-

plementation Plan for the Attainment and Mainten-

ance of National and State Ambient Air Quality

Standards. These are reprinted in pertinent part in

Appendix C, pp. 36a-46a infra.

STATEMENT OF THE CASE

Pursuant to the Clean Air Act Amendments of

1970, the Commonwealth of Kentucky adopted Ken-

tucky’s Implementation Plan for the Attainment and

Maintenance of National and State Ambient Air

Ouality Standards, (Hereinafter referred to as “The

Kentucky Plan”), and submitted this plan to the En-

vironmental Protection Agency for approval as re-

quired by the Act. “The Kentucky Plan” approved

hy the Environmental Protection Agency contains a

requirement that the owners and operators of air con-

taminant sources in the Commonwealth of Kentucky

obtain permits to operate such facilities. Section 118

of the Clean Air Act Amendments of 1970, 42 U.S.C.

$1857f.. provides that Federal facilities which operate

air contaminant sources “shall comply” with State

“requirements respecting control and abatement of

air pollution.”

Defendants Tennessee Valley Authority, Depart-

ment of the Army, Atomic Energy Commission, and

Union Carbide Corporation all operate or control air con-

taminant sources within the Commonwealth of Ken-

tucky. These defendants refused to apply for and ob-

tain permits as required in “The Kentucky Plan” and

the Environmental Protection Agency refused, and

continues to refuse, to commence appropriate action.

On November 16, 1972, this action was brought in the

United States District Court For The Western Dis-

trict of Kentucky in an effort to compel the individual

defendants, all officers responsible for the conduct of

their respective agencies and facilities, to comply with

the requirements of “The Kentucky Plan” end asking

declaratory and injunctive relief restraining the de-

fendants from refusing to comply with the provisions of

42 U.S.C. §1857f.

The District Court granted the defendants’ Motion

for Summarv Tudement holding that a permit hos

ahsolutely nothing to do with air qualitv and that

Section 118 of the Clean Air Act Amendments of

1970, 42 U.S.C. 81857f. did not require the defendants

to obtain permits under “The Kentucky Plan.”

The Court of Appeals for the Sixth Circuit unheld

the Tudgment of the District Court, noting that a per-

mit was unnecessary since appellant had a remedy

under Section 304 of the Clean Air Act Amendments

of 1970, 42 U.S.C. $1857h-2.

REASONS FOR GRANTING THE WRIT

The Court of Appeals for the Sixth Circuit erred

in its construction of the Clean Air Act, as amended,

particularly with respect to Section 118 and Section

304 of the Clean Air Act Amendments of 1970, 42

U.S.C. §1857f. and §1857h-2. (Appendix C, infra) and

the interrelation of those sections. The error in the rea-

soning of that Court is reflected in its conclusion that:

“Congress intended that federal facilities comply with

the emission standards and limitations of the state

plan where they are located. Such compliance is

mandated by Section 118 and made enforceable by

legal action pursuant to Section 304. By defining

the term ‘emission standard or limitation’ broadly

in Section 304(f) Congress provided a means of

enforcing all of the substantive provisions of a state

plan, for prevention as well as after-the-fact viola-

tion.” (Appendix B, infra)

In this statement the Court has ignored the fact that

Section 118 does not mandate compliance with the “sub-

stantive provisions of a state plan” but rather requires

compliance with State “requirements respecting control

and ahatement of air pollution.” Further, it is unneces-

sarily strained and circuitous to say compliance with

“substantive provisions of a state plan” is “mandated by

Section 118 and made enforceable by legal action pursu-

ant to Section 304” since Section 304 itself quite clearly

“mandates” compliance with such requirements and pro-

vides for such legal action completely independent of

Section 118. It is a well established rule of this Court,

followed numerous times, that every provision of a

statute is to be construed, if possible, so as to give it

operative meaning and a corollary that no section of

a statute should be given a construction which will render

it redundant or meaningless where another interpreta-

tion will give it effect.' In making the determination that

the state may enforce only those parts of its implementa-

tion plan deemed “substantive provisions” the Court be-

low has rendered Section 118 a mere restatement of Sec-

tion 304 in contravention of this principle of construction.

In addition, such an interpretation renders utterly with-

out meaning Section 116 of the Clean Air Act Amend-

ments of 1970, 42 U.S.C. § 1857d-1 (Appendix C, infra)

which provides:

“. , nothing in this chapter shall preclude or deny

the right of any state or political subdivision thereof

to adopt or enforce (1) any standard or limitation

respecting emissions of air pollutants or (2) any

requirement respecting control or abatement of air

polluation.” (Emphasis Added).

This section indicates there is a difference between

“requirements respecting control and abatement of air

pollution” as used in Section 118 and “emission standard

or limitation” as used in Section 304, for the section

clearly demonstrates those phrases were not inter-chang-

able and co-extensive in the minds of the Congress.

1. Washington Market Co. v. Hoffman, 101 U.S. 112, 25 L.Ed. 782

(U.S. Dist. Col. 1879); Jarecki v. G. D. Searle & Co., 81 S.Ct.

1579, 367 U.S. 303, 6 L.Ed. 2d 859 (U.S. Ill. 1961); Weinberger

v. Hynson, Westcott & Denning, Inc., 93 S.Ct. 2469 (U.S. Va.

1973).

Nor does an examination of the words used in Sec-

tion 118 indicate or justify the restriction of the mean-

ing of the phrase “requirements respecting control and

abatement of air pollution” to include only those “require-

ments” which embody “emission standards or limita-

tions” as defined in Section 304. The relevant portions

of Section 118 read as follows:

“Fach department avency. and instrumentality of the

executive, legislative. and judicial branches of the

Federal Government (1) having jurisdiction over

any property or facility. or (2) engaged in any ac-

tivity resulting, or which mav result. in the dis-

charge of air pollutants. shall comply with Federal,

State. interstate and local requirements respecting

control and abatement of air pollution to the same

extent that anv person is subject to such require-

ments.”

Section 118 continues by providing that the President

may grant facilities exemptions from any requirement.

The mandate of this section is clear: Congress has

ordered unequivocally that the facilities of the Federal

Government are to comply with “State . . . requirements

respecting control and abatement of air pollution.” The

only limits on this command are that such facilities need

only comply to the same extent as other persons and that

the President mav exempt compliance bv affirmative ac-

tion. No mention is made in this section of ar exemption

from all requirements save “emission standards or limita-

tions.” However, it is exactly that exemption which the

District Court and the Circuit Court of Appeals have

written into the law with their Opinions. This is not the

BEST COPY AVAILABLE |

proper function of the judiciary. As was stated in the

case of 62 Cases, More or Less, Each Containing Six

Jars of Jam v. United States, 340 U.S. 593, 71 S.Ct. 515,

95 L.Ed. 566 (U.S. N.M. 1951):

“In construing a statute, the United States Supreme

Court must construe what Congress has written,

and cannot add, substract, delete or distort words

used.”

In this case what Congress has written is an un-

compromising command to comply with State “require-

ments ;” there is absolutely no language in this section

indicating there are to be certain “requirements” impos-

ed on “any person” for which compliance by Federal

facilities is not required.

The District Court and the Circuit Court of Appeals

have, however, gone beyond the natural and common im-

port of the words which the Congress wrote, and have

looked elsewhere for a clarification of “requirements re-

specting control and abatement of air Pollution.” In

past decisions this Court has indicated that in such cir-

cumstances the Court should examine the purpose for

the statutory enactment; that is, the Court should strive

to identify the “evil” with which the enactment seeks to

deal.2 When the enactment is an amendment to an exist-

ing act it seems obvious to look to the provision which

Congress found inadequate and which was changed in

order to determine the purpose of the change.

2. Platt v. Union Pacific R. Co., 99 U.S. 48 (1878); U. S. v. Katz,

271 U.S. 354 (1926) ; Shapiro v..U. S., 335 U.S. 1 (1948).

Prior to the enactment of Section 118 of the Clean

Air Act Amendments of 1970, the Congress had requir-

ed a program of voluntary cooperation in the area of air

pollution by Federal agencies, embodied in Section 111

of The Air Quality Act of 1967, P.L. 90-148:

“COOPERATION BY FEDERAL AGENCIES TO

CONTROL ATR POLLUTION FROM

FEDERAL FACILITIES

“Sec. 111. (a) It is hereby declared to be the

intent of Congress that anv Federal department or

agency having jurisdiction over any building, in-

stallation, or other property shall, to the extent

practicable and consistent with the interests of the

United States and within any available appropria-

tions, cooperate with the Department of Health, Ed-

ucation, and Welfare and with any air pollution con-

trol agency in preventing and controlling the pollu-

tion of the air in any area insofar as the discharge

of any matter from or by such building, installation,

or other property may cause or contribute to pollu-

tion of the air in such area.”

What is immediately apparent from this provision is that

in enacting Section 118 the Congress intended a radical

change from the provisions of previous law; an exami-

nation of these two provisions clearly indicates that Con-

gress wished to depart from an ineffective program of

voluntary cooperation and move instead to a program of

mandatory compliance. If, in making such a change, the

Congress had desired to make only compliance with

“emission standards or limitations” mandatory it need

only have so stated. Obviously, this was not the state-

ment made in Section 118, and, moreover, this was not

the statement made in either the Senate nor the House

versions. The Senate version of this section would have

directed each Federal agency to “comply with the re-

quirements of this Act in the same manner as any other

person would so comply... .’”* The House version would -

have required compliance with “applicable Federal, State,

interstate, and local emission standards and with the pur-

pose of this Act... .”* In neither case is there a simple

statement that these facilities need only comply with

“emission standards and limitations.” Both versions raise

questions concerning additional requirements relative to

“the purpose of this Act,’ and the manner of compliance

by “any other person,” however, the District Court and

the Circuit Court of Appeals each conclude based on this

authority that “requirements respecting control and abate-

ment of air pollution” are nothing more than “emission

standards or limitations.” This conclusion is clearly not

warranted; as this Court stated in Ex Parte Collett, 337

U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207, (U.S. Ill. & Ky.,

1949):

“The plain words and meaning of a statute cannot be

overcome by legislative history which, through

strained processes of deduction from events of whol-

ly ambiguous significance, may furnish dubious bases

for inference in every direction.”

The search for the intent of Congress cannot end,

however, with an examination of the purpose of a single

3. H.R. 17255, 91st Cong., 2d Sess., Sec. 111 (1970).

4. S 4358, 91st Cong., 2d Sess., Sec. 118 (1970).

section, it is necessary to see if that provision is consistent

with the goals of the Act and the statutory plan for the

accomplishment of those goals. The goals of the Clean

Air Act as a whole are embodied in Section 101(b) of

the Clean Air Act Amendments of 1970, 42 U.S.C. §1857

(bh) (Appendix C, infra):

“(l)) The purposes of this title are —

“(1) to protect and enhance the quality of the

Nation’s air resources so as to promote the public

health and welfare and the productive capacity of

its population;

“(2) to initiate and accelerate a national re-

search and development program to achicve the pre-

vention and control of air pollution;

“(3) to provide technical and financial assist-

ance to State and local governments in connection

with the development and execution of their air

pollution prevention and control programs: and

“4) to encourage and assist the development

and operation of regional air pollution control pro-

grams.”

Clearly, then, one of the primary goals of the Act

was to develop a “program” designed to achieve the

“prevention and control of air pollution.” That the air

pollution prevention and control programs envisioned by

the Act were to be State programs is clearly illustrated

by the findings of the Congress embodied in Section 101

(a) of the Act, 42 U.S.C. §1857(a) (Appendix C, infra):

“(3) that the prevention and control of air pol-

lution at its source is the primery responsibilitv of

States and local governments; and

“(4) that Federal financial assistance and leader-

ship is essential for the development of cooperative

Federal, State, regional, and local programs to prevent

and control air pollution.”

These sections demonstrate the States are to have pri-

mary responsibility in the area of air pollution and that

the Federal Government is to provide financial assistance

and leadership in developing the State plans. In enacting

the Clean Air Act, as amended, the Congress of the United

States set out and prescribed a carefully conceived plan

through which the control and prevention of air pollution

was to be accomplished; a plan whose core concept was

the development of state control and prevention programs

utilizing State plans designed to implement minimum na-

tional standards of air quality. The specific mechanisms to

be emploved in this Congressional plan were set out in

narticular in other sections of the Act. In Section 107,

42 U.S.C. §1857c-2 (Appendix C, infra). the Congress

reaffirms the State’s responsibility and directs that each

shall prepare a nlan for meeting these responsibilities:

“Sec. 107. (a) Each State shall have the pri-

mary responsibility for assuring air quality within

the entire geographic area comprising such State

by submitting an implementation plan for such State

which will specify the manner in which national

primary and secondary ambient air quality standards

will be achieved and maintained within each air

quality control region in such State.”

The requirements for these “implementation plans”

were set out in Section 110, 42 U.S.C. §1857c-5 (Ap-

pendix C, infra). The basic requirement contained in

Subsection 110(a)(1), was that the plan “provide for

implementation, maintenance, and enforcement” of both

the primary and secondary standards contained in the

Act. Subsection 110(a) (2) required, in addition to “‘emis-

sion limitations, schedules, and timetables of compliance,”

that the plan:

“(C) .. . includes provision for establishment and

operation of appropriate devices, methods, systems,

and procedures necessary to (i) monitor, compile,

and analyze data on ambient air quality and, (ii)

upon request, make such data available to the Ad-

ministrator.”

“(F) ... provides (i) mecessary assurances that the

State will have adequate personnel, funding, and

authority to carry out such implementation plan,

(ii) requirements for installation of equipment by

owners or operators of stationary sources to moni-

tor emissions from such sources, (iii) for periodic

reports on the nature and amounts of such emis-

sions; (iv) that such reports shall be correlated by

the State agency with any emission limitations or

standards established pursuant to this Act, which

reports shall be available at reasonable times for

public inspection; and (v) for authority comparable

to that in section 303, and adequate contingency

plans to implement such authority ;”’

Clearly, these are requirements designed to give as-

surance that implementation plans adopted by the States

are adequate to enforce the standards and to implement

the necessary controls on air contaminant sources to ac-

complish the goals and purposes of the Act. The con-

cern of Congress that such plans contain adequate as-

surance of enforcement capability shows they understand

that the mere existence of standards is utterly meaning-

less without a means of administering and enforcing these

standards; their concern was that that the States actual-

ly be able to implement the standards and achieve the

goals of the Act. This is the Congressional “plan”; the

“plan” for achieving the goals of the Act and to provide

for the enhancement of the quality of this Nation’s air.

The decisions of the District Court and the Circuit

Court of Appeals do violence to this carefully conceived

and Congressionally enacted plan. For “The Kentucky

Plan” is the embodiment of the Congressional scheme

of control for all air contaminant sources in the Common-

wealth of Kentucky. In ruling “requirements respecting

control and abatement of air pollution” as contained in

Section 118 referred only to “emission standards or

limitations” as defined in Section 304 these Courts have

thwarted the intent of Congress and have denied effect

to every provision and requirement of “The Kentucky

Plan” which they do not deem to be a “substantive re-

quirement.” These Courts have swept away all the pro-

visions which the Congress so carefully required and

enumerated to assure that the States had the ability to

implement the standards.

Obviously, this ruling will have a significant, long-

term and detrimental impact on the future administration

of the Clean Air Act. Pursuant to the direction of the

Congress the Commonwealth of Kentucky prepared and

adopted an implementation plan setting forth the pro-

cedures to be followed in fulfilling its primary responsi-

bility under the Act, the prevention and control of air

pollution at its source. This plan and the procedures it

contains were submitted to, and approved by, the Environ-

mental Protection Agency. “The Kentucky Plan” con-

tains, among other requirements related to the admini-

stration and implementation of the Act, a permit require-

ment. This permit requirement, embodied in Section 5

of Kentucky Administrative Regulation AP-1 and

promulgated in Chapter 7 of “The Kentucky Plan” is

the basic control provision of the entire “Kentucky Plan.”

(Appendix C, infra). It is through the use of the permit

system Kentucky is able to insure that proper air polln-

tion control equipment is installed, it is the mechanism

through which the Commonweatlh is able to compel the

production of data concerning air contaminant sources,

including the ability to prescribe the monitoring tech-

niques to be employed, and is, therefore, a provision

which is absolutely necessary to the Commonwealth of

Kentucky in carrving out its plan for achieving the stand-

ards. However, notwithstanding the requirements in

the Act that the States are to adopt implementation plans.

the Court below concludes that the standards are to be

implemented by the use of legal action under the Citizen

suit provision of the Act, Section 304, 42 U.S.C. §1&57h-

2. The Court states:

“The language of Section 304 does not require that

suit he deferred until actual violation of an estab-

lished emission standard occurs. Suhsection (f)(1)

clearly permits the filing of an action for violation

of a schedule or timetable of compliance.” (Ap-

pendix B. infra).

This proposed manner of implementation fails to con-

sider, however, the manner in which “schedules or time-

tables of compliance” come into existence. There is no

single such compliance schedule; it is necessary to de-

termine what is required to bring each separate air con-

taminant source into compliance and then to design a

schedule for the steps which need to be taken, a compli-

ance schedule does not automatically come into being.

The only known factors which relate to all compliance

schedules are the attainment dates by which time all air

contaminant sources are to be in compliance with the

standards. In Kentucky, provision has been made, under

its implementation plan, for prior review and approval

of the compliance schedules of each air contaminant

source in the state; this is done through the use of the

permit system. Under “The Kentucky Plan” no permit

may be issued to an air contaminant source unless that

source is in compliance with the standards or is com-

mitted to an approved compliance schedule which will

bring it into compliance by the attainment date. If after

review of the nature of the source and the control mea-

sures to be incorporated it is determined that the com-

nliance schedule will indeed put the source in compliance

then the permit is issued with the compliance schedule

as an enforecable condition; the schedules themselves, have

no independent legal significance. Moreover. none of

the sources involved in this action are at this time in anv

way legally committed to any compliance schedules: in-

deed not all of these sources have submitted plans under

which they could be expected to meet the standards by

the attainment dates.

The District Court and the Circuit Court of Appeals

have both blithely ignored the nature of compliance

schedules and the manner in which they come into being.

In doing so they have altered the entire nature of the

Clean Air Act and placed a significant and onerous mill-

stone around the administration of the Act. The most

significant error which has heen made by the Courts be-

low is that they have failed to recognize that the Clean

Air Act, as amended, is primarily a regulatory statute.

The manner of implementation which the Courts below

have ruled Congress intended is based on an entirely dif-

ferent philosophy and principle; the Act is to be imple-

mented by use of the penal principle of arrest, trial, and

punishment. This principle is antithetical to the principle

of planned prevention and control.

Accomplishment of the goals of the Act requires plan-

ning and control over all sources of air pollution, for it is a

fact of life in the United States today that few, if any, of

the maior sources of air pollution, including facilities op-

erated by the Federal Government as well as private enter-

prise, are currently in compliance with minimum stand-

ards necessary to protect human health. In the face of

this problem the rulings of the Courts below place the

implementation of the Act under a system much better

enited to dealing with instances of deviation from an ac-

cepted norm. What is needed in the area of air pollu-

tion control, and what was provided by the Congress in

the Clean Air Act, is a system which is capable of raising

the National norm to a new and higher standard.

The Act is geared to the regulation, control, and

prevention of air pollution at its source; it provides for

administration, the gathering and assessing of data, the

development, disemmination, and use of new technology.

and it directs the formulation and employment of imple-

mentation plans. This requires a system of planning and

review not possible without a means of controlling all

air contaminant sources, including those operated by

instrumentalities of the Federal Government.

The decision of the District Court denies the states

such control:

“It seems apparent, therefore, that Congress at all

times contemplated a self imposed policy of Federal

compliance with all applicable standards, but .at no

time contemplated subjecting Federal facilities to

State procedures.” (Appendix A, infra).

This ruling is echoed in the Opinion of the Circuit

Court of Appeals:

“We do not believe the congressional scheme for ac-

complishment of these purposes included subjection

of federal agencies to state or loca! permit require-

ments. Congress did commit the United States to

compliance with air quality and emission standards,

and it is undisputed in this record that the federal

facilities in Kentucky have cooperated with the Com-

mission toward this end.” (Appendix B, infra).

This action was filed and has been prosecuted with

the sole purpose of securing for the Commonwealth the

right to enforce the “air quality and emission standards”

of the Act; it is absurd beyond belief to conclude there

is nothing in the record to indicate that the Federal fa-

cilities in Kentucky have not cooperated with the enforce-

ment of these standards. The rulings of the Courts be-

low indicate that some of the major sources of air pol-

lution in Kentucky are to regulate themselves. This

means that in fulfilling its responsibilities under the Act

the Commonwealth has no power to review the control

measures to be used by these sources, and no place in the

planning process but, rather must rely on the good inten-

tions of the polluters themselves. This is not regulation

as contemplated under the Act and this is not coopera-

tion in meeting the standards. The states have been re-

quired to adopt elaborate plans to implement the stand-

ards, a regulatory plan which will enable the states to

equalize the burdens of air pollution control among all

the sources in a region. The Federal facilities in Ken-

tucky have refused to abide by this plan; this is not co-

operation in achieving the standards. These plans can-

not be implemented or employed, instead the rulings of

the Courts below and the position of the Federal facili-

ties in Kentucky have reduced this Commonwealth to the

role of policeman, catching violators and bringing them

to justice in the courts. This was not the Congressional

plan for the implementation of the standards.

In enacting Section 118 of the Clean Air Act Amend-

ments of 1970 it was the intent of Congress to grant to the

States a right commensurate with their responsibilities, the

right to prevent and control air pollution at its source and

to that end to exercise the requisite control over all sources

within their boundaries. The command in Section 118 is

clear and uncompromising in its generality and unmistak-

able in its thrust and intent; for purposes of air pollution

control, Federal facilities must comply with, and are sub-

ject to, the same requirements imposed on every other air

contaminant source in the State. The “requirements” with

which such facilities are to comply are the requirements

which Congress was so careful to insure would be present

in each State’s implementation plan, the requirements which

Congress referred to as “requirements respecting contrul

and abatement of air pollution.” This cornmand., that

these facilities “shall comply,’ has been thwarted by the

decisions of the District Court and Circuit ¢ ourt of Ap-

peals, for in ruling there has been no waiver under the

Supremacy Clause they have ruled that no command or

mandate has been issued: that Section 118 does not create

a mandatory and non-discretionary duty to comply in

place of the system of voluntary cooperation which Con-

gress intended to do away with.

The Court’s reliance cn the Supremacy Clause ‘n

this case is error. It is clearly the intent of Congress to

subject Federal facilities to the State regulations involved.

Also clear is the authority of Congress to waive the pro-

tection of this clause in terms of broad but uncompromis-

ing generality. Analagous in this regard is the case of

Baltimore National Bank v. State Tax Commissioner,

297 U.S. 204 (1936) in which this Court ruled the Con-

gress had consented to taxation of shares in a national

bank which were held by an instrumentality of the Fed-

eral Government by enacting a statute which provided

simply that “all” shares in such associations were tax-

able hy the State in which the association had its princi-

pal place of business. Finally, the application of the Su-

premacy Clause in this case is contrary to the policy be-

hind the law, for far from being regulations which will

frustrate Federal law, the evil against which the Suprem-

acy Clause protects, the requirements contained in “The

Kentucky Plan” are in furtherance of the goals of Federal

law, and indeed were adopted pursuant to Federal law.

See: Peres et ux. v. Campbell, 402 U.S. 637 (1971).

likewise, the doctrine of sovereign immunity is in-

applicable in the present case. It is well established that

this doctrine is for the protection of officers of the soverign

in the performance of their duties and that such protec-

tion does not extend to any actions of such individuals

which are beyond his authority or in contravention of his

duties. Larson v. Domestic and Foreign Commerce Cor-

poration, 337 U.S. 682 (1949). In the present case the

individuals against whom relief is sought have uniformly

exceeded their authority in refusing to comply with the

mandate of a Federal statute and are properly subject to

suit for specific relief.

CONCLUSION

This action concerns the manner of the imple-

mentation of a Federal staute. The construction of

the Clean Air Act embodied in the decisions rendered

by the District Court and the Court of Appeals for

the Sixth Circuit does violence to the carefully con-

ceived plo» of the Congress for the implementation of

this Act and constitutes a significant interference with

the administration of the States’ Implementation Plans

and the achievement of the goals of the Act. The Act

provides that the States are to have primary jurisdic-

tion in the area of air pollution and the Congress pro-

vided in Section 118 that the Federal facilities involved

were to comply with State “requirements respecting

control and abatement of air pollution.” The body of

these requirements, in the Commonwealth of Ken-

tucky, are contained in its Implementation Plan, how-

ever, the Courts below have written into the law pro-

visions exempting Federal facilities from compliance

with this plan in contravention of the intent of Con-

gress. The importance of this action to the achieve-

ment of the goals of the Act is reflected in the fact

that there are currently pending in the Fifth’ and

Ninth® Circuits similar challenges to the refusal of the

Federal Government to comply with the Congressional

mandate of Section 118. In ruling that the provisions

of this Commonwealth’s Implementation Plan are not

“requirements respecting control and abatement of air

pollution” the Courts below have thrown out the pro-

visions of this State’s Congressionally required plan,

and have exempted many of this State’s major pol-

luters from control, a result which severely hinders

the administration of the Clean Air Act and the pur-

5. State of Alabama, et al, v. Lynn Seeber, et al, Not Reported, File

No. 73-2766, United States Court of Appeals, Fifth Circuit.

6. California v. Statsny, 4 ERC 1447, File No. 72-2905, United

State Court of Appeas, Ninth Circuit.

pose and intent of Congress. For these and the fore-

going reasons, this Petition for a Writ ot Certiorari

should be granted.

Respectfully submitted,

ED W. HANCOCK

ATTORNEY GENERAL

COMMONWEALTH OF

KENTUCKY

Room 114, Capitol Building

Frankfort, Kentucky 40601

Telephone (502) 564-7600

DAVID C. SHORT

ASSISTANT ATTORNEY

GENERAL

COMMONWEALTH OF

KENTUCKY

DAVID D. BEALS

ASSISTANT ATTORNEY

GENERAL

COMMONWEALTH OF

KENTUCKY

Room 26, Capitol Bldg.

Frankfort, Kentucky 40601

Telephone (502) 564-3595

COUNSEL FOR PETITIONER.

CERTIFICATE OF SERVICE:

The undersigned hereby certifies that the fore-

going PETITION FOR WRIT OF CERTIORARI

was served by mailing true copies hereof, postage pre-

paid, to: Honorable Robert L. Klarquist, Attorney,

Appellate Section, Land and Natural Resources Di-

vision, Department of Justice, Washington, D. C.

20530; Honorable Martin Green, Chief, Pollution

Control Section, Department of Justice, Washing-

ton, D. C. 20530; Honorable Wallace Johnson, As-

sistant Attorney General, Department of Justice,

Washington, D. C. 20530; Honorable Walter Kiechel,

Jr., Deputy Assistant Attorney General, Department

of Justice, Washington, D. C. 20530; Honorable

James A. Glasgow, Assistant Attorney General, Land

and Natural Resources Division, Department of Jus-

tice, Washington, D. C. 20530; Honorable William

Saxbe, Attorney General, United States of America,

Washington, D. C. 20530; Honorable George J.

Long, United States District Attorney, Western Dis-

trict of Kentucky, Room 211, United States Court-

house, Sixth and Broadway, Louisville, Kentucky,

40202; Honorable Jacques B. Gelin, Attorney, Appel-

late Section, Department of Justice, Washington, D.

C. 20530; Honorable Kent Frizzell, Assistant At-

torney General, Land and Natural Resources Di-

vision, Department of Justice, Washington, D. C.

20530; Honorable Herbert S. Sanger, Jr., Deputy

General Counsel, Tennessee Valley Authority, Knox-

ville, Tennessee, 37901: Honorable Robert H. Mar-

quis, Associate General Counsel, Tennessee Valley

Authority, Knoxville, Tennessee, 37901; Honorable

Beauchamp E. Brogan, Associate General Counsel,

Tennessee Valley Authority, Knoxville, Tennessee

37901; Honorable Justin M. Schwamm, Associate

General Counsel, Tennessee Valley Autorithy, Knox-

ville, ‘Tennessee 37901; Honorable G. Wilson Horde,

General Counsel, Union Carbide Corporation, Post

Office Box Y, Oak Ridge, Tennessee 37830; Honor-

able Andrew P. Miller, Attorney General, Common-

welath of Virginia, Supreme Court Building, 1101

East Broad Street, Richmond, Virginia 23219: Hon-

orable Thomas Steger, Assistant Attorney General,

Commonwealth of Virginia, Supreme Court Build-

ing, 1109 East Broad Street, Richmond, Virgnia

23219: Honorable Evelle Younger, Attorney General,

State of California, 600 State Building, 217 West

First Street, Los Angeles, California 90012; Honor-

able Jan Chatten Brown, Deputy Attorney General,

State of California, 600 State Building, 217 West First

Street, Los Angeles, California 90012; Honorable

Robert H. O’Brien, Assistant Attorney General, State

of California, 600 State Building, 217 West First

Street. Los Angeles, California 90012: Honorable

Nicholas C. Yost, Deputy Attorney General State of

California, 600 State Building, 217 West First Street,

Ios Angeles, California 90012; Honorable John J.

Hill. Attorney General, State of Texas, Post Office

Box 12548, Austin Texas 78711: Honorable Larry F.

York, First Assistant Attorney General, State of

Texas, Post Office Box 12548, Austin, Texas 78711;

Honorable Philip K. Maxwell, Assistant Attorney

General, State of Texas, Post Office Box 12548, Aus-

tin, Texas 78711; and Honorable James F. Gordon,

United States District Judge, United States District

Court, Western District of Kentucky, United States

Courthouse, Sixth and Broadway, Louisville, Ken-

tucky 40202; Honorable Paul C. Wieck, Circuit

Judge, United States Court of Appeals For the Sixth

Circuit, Honorable Pierce Lively, Circuit Judge,

United States Court of Appeals For the Sixth Cir-

cuit, and Honorable Lester L. Cecil, Senior Circuit

Judge, United States Court of Appeals For the Sixth

Circuit, Cincinnati, Ohio 45202; all this the xc day

of August, 1974. | |

[ ee ( Sher

DAVID C. SHORT

Assistant Attorney General

Commonwealth of Kentucky

DAVID D. BEALS

Assistant Attorney General

Commonwealth of Kentucky

APPENDIX

APPENDIX A

Rendered: 8-10-73

Entered: 8-13-73

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT

OF KENTUCKY

AT LOUISVILLE

COMMONWEALTH OF KENTUCKY,

Ex Rel ED W. HANCOCK,

Attorney General, Plaintiff

v. Civil Action No. 7480-G

ROBERT FRI,

Acting Administrator,

Environmental Protection Agency,

et al, Defendants

MEMORANDUM AND ORDER

This suit, brought on behalf of the Commonwealth

of Kentucky by State Attorney General Ed W. Hancock.

raises an important question concerning the authority of

the States to regulate Federal activities and installations’

1. The Federal installations in question are: (1) Fort Campbell,

Kentucky (home of the 101st Airborne Division)~- (2) Lexing-

ton-Bluegrass Army Depot, Lexington, Kentucky; (3) United

States Army Armor Center and Fort Knox, Fort Knox, Ken-

tucky; (4) Paducah Gaseous Diffusion Plant, Paducah, Ken-

tucky, and (5) Installations operated by Tennessee Valley Author-

ity.

under the Clean Air Act of 1970, 42 U.S.C. Section 1857

et seq. In general, the plaintiff asserts that Federal enti-

ties operating equipment or installation which emit air

contaminants must secure a permit from the Kentucky

Pollution Control Commission before operating such

equipment. The permit requirement in question appears

in Section 5 of the Kentucky Air Polution Control Com-

mission Regulations AP-1. Section 5, which was part of

the air implementation plan which Kentucky submitted to

the Federal Government pursuant to Section 110 of the

Clean Air Act of 1970, 42 U.S.C. Sec. 1857f provides in

pertinent part as follows:

(1) No person shall construct, modify, use, operate,

operate, or maintain an air contaminant source

or maintain or allow phvsical conditions to exist

on property owned by or subject to the control

of such person, resulting in the presence of air

contaminants in the atmosphere, unless a permit

therefor has been issued by the Commission

and is currently in effect. (Emphasis ours.)

The plaintiff further alleges that “Kentucky’s Plan

hecame Federal law pursuant to Section 110. 113, and

118 of the Clean Air Act of 1970... [and] Section 118

of the Clean Air Act of 1970 requires that “federal facil-

ities’ comply with approved Kentucky Plan...” Com-

plaint. page 13.

In his prayer for relief, the Attorney General seeks

a mandatory injunction requiring the defendants’, except

for the Environmental Protection Agency and its de-

fendant-officers, to “apply for and to obtain permits from

the Kentucky Air Pollution Control Commission .. .”

(Complaint p. 25). Also, a prohibitory injunction is

sought restraining the defendants “from refusing to

comply with the provisions of Section 118 of the Clean

Air Act of 1970.” (Complaint p. 25). With respect to

the EPA and its officers, the praver requests that they

be “[o]rdered to commence appropriate action under

Section 113 of the Clean Air Act of 1970 to obtain full

compliance by the defendants . . . with the Kentucky

plan...” A declaratory judgment and relief in the na-

ture of mandamus are are also sought. |

The TVA defendants moved to dismiss, or, in the

alternative, for summary judgment. A motion to dismiss

was filed by the non-TVA defendants. The plaintiff

countered with a motion for summary judgment against

the TVA defendants.

When these motions came on for hearing, it was

apparent that it would be necessary, in the disposition

thereof, that the Court consider matters in the nature

of all affidavits and exhibits outside the pleadings. Rule

12b. F.R.C.P. Accordingly, it was agreed by all parties,

2. All of the defendants except the Tennessee Valley Author-

ity (TVA) and its officers were represented by the United

States Department of Justice. The TVA was represented by

its own attorneys. For clarity, the defendants are sometimes

alluded to as (1) non TVA defendants; and (2) TVA de-

fendants.

by counsel, that there being no issue of material fact as

pertained to the legal defenses asserted, the Court without

objection, considered the entire matter as on cross-

motions for summary judgment.

Only issues of law are before this Court.* These

issues are: (1) whether the Clean Air Act of 1970 re-

quires that the defendants obtain state permits before

operating equipment which emits substances into the

ambient air and (2) whether the doctrine of sovereign

immunity is a barrier to maintenance of this suit.

THE PERMIT ISSUE

Congress recognized that Federal facilities emitted

appreciable amounts of various substances into the am-

bient air. Therefore, it provided in Section 118 of the

3. The non-TVA defendants have submitted affidavits attesting

that their installations, with a few minor exceptions which

are being corrected, are in compliance with Kentucky's

emission standards. The plain.iff has made contrary allega-

tions. These factual disputes need not be tried, however, since

matters of law control the disposition of the case. TVA has

submitted to Kentucky detailed information concerning

emissions from its facilities as required by Kentucky and in

the form requested. TVA has also submitted plans and sche-

dules for complying with Kentucky's emission standards. In

furnishing such information, however, TVA informed Ken-

tucky that while TVA fully intends to comply with its obli-

gations under Section 118 of the Clean Air Act, those obliga-

tions do not include securing of state permits (Affidavit of

Lynn Seeber). TVA accordingly has not applied for or ob-

tained permits.

Clean Air Act for control of pollution from Federal facil-

ities. In pertinent part. Section 118 provides as follows:

Each department, agency, and instrumentality of

the executive, legislative, and judicial branches of

the Federal Government (1) having jurisdiction

over any property or facility, or (2) engaged in

any activity resulting, or which may result, in the

discharge of air pollutants, shall comply with Fed-

eral, State, interstate, and local requirements re-

specting control and abatement of air pollution tu

the same extent that any person is subject to such

requirements.

The question which is squarely before this Court is

whether Congress intended, by enacting Section 118, to

require the Federal Government to obtain permits from

state agencies before operating equipment which generated

air contaminants. Since this question must be answered

in the negative, the defendants’ motions must be granted.

All defendants contend that the requirement, in Sec-

tion 118, that Federal entities “comply with Federal,

State, interstate, and local requirements respecting con-

trol and abatement of air pollution” simply means that

Federal facilities must comply with the emission stand-

ards and implementation plans of Sections 109 and 110

of the Act and, except for new facilities, the monitoring

and other requirements of Section 114. The legislative

history of the Act supports the defendants’ interpreta-

tion of Section 118.

The Clean Air Act of 1967, 77 Stat. 392. Section

111, required that Federal agencies shall “to the extent

practicable and consistent with the interest of the United

States and within any available appropriations, cooperate

with the Department of Health, Education and Welfare

and with any air pollution control agencies in preventing

and controlling the pollution of the air...” This pro-

vision was changed by the Clean Air Act Amendments

of 1970. The following analysis of the legislative history

of Section 118 of the Clean Air Act provides an indica-

tion of Congress’ intent concerning the change from the

provision in the 1967 Act to the one in the 1970 Amend-

ments.

On June 10, 1970, the House of Representatives

passed H.R. 17255, a bill to amend the Clean Air Act of

1967. This bill would have required each Federal agency

to ‘comply with the applicable Federal, State, interstate,

and local emission standards and with the purpose of this

Act...” [emphasis supplied]. H.R. 17255, 91st Cong.,

2d sess., sec. 111 (1970). The House Report on the bill

states. “The legislation directs Federal agencies in the

executive, legislative and judicial branches to comply

with applicable Federal, State, interstate, and local emis-

sion standards.” H.Rept. No. 91-1146, 91st Cong., 2d

sess.. p. 4 (1970). On September 22, 1970, the Senate

passed S. 4358, a different bill to amend the Clean Air

Act of 1967. The bill would have directed each Federal

agency to “comply with the requirements of this Act in

the same manner as any other person would so com-

ply...” [emphasis supplied]. S. 4358, 91st Cong., 2d

sess. sec. 118 (1970) The Senate Report on the bill

states, “This section requires that Federal facilities meet

the emission standards necessary to achieve ambient air

quality standards as well as those established in other sec-

tions of Title I” [emphasis ours]. S. Rept. No. 91-1196,

91st Cong., 2d sess., p. 23 (1970). Other sections of

Title I of the Senate bill set forth emission standards for

“new sources” (§112), “selected air pollution agents”

(§114), “hazardous air pollution agents” ($115), and

inspection, monitoring and entry provisions (§116). The

above statement from the Senate Report clearly indicates

that the “requirements” which the Senate bill would have

Federal facilities comply with were the substantive emis-

sion “standards” set forth in the Act and other Title I

provisions. The Senate bill did not require, any more

than the House bill, Federal compliance with State pro-

cedures. Both the House and Senate language were

changed by the Conference Committee. The new lan-

guage, which was enacted by Congress, requires Federal

facilities to “comply with Federal, State, interstate and

local requirements respecting control and abatement of

air pollution to the same extent that any person is subject

te such requirements.” Concerning this new language,

the Conference -Report states, “The House bill and the

Senate amendment declare that Federal departments and

agencies should comply with applicable standards of air

quality and emission.” H. Rept. No. 91-1783, 91st Cong.,

2d sess., p. 48 (1970).

It seems apparent, therefore, that Congress at all

times contemplated a self imposed policy of Federal com-

pliance with all applicable standards, but at no time con-

templated subjecting Federal facilities to State pro-

cedures. If Congress had intended to abandon the well

established doctrine, which has its basis in the Suprem-

acy Clause, that the Federal Government is immune from

attempts by states to subject it to state regulatory

measures,‘ it would have so stated.

It must be noted, moreover that, Congress was sen-

sitive to the issue of federal-state relations in enacting

the Clean Air Act and, in a number of instances, ex-

pressly stated the manner in which Federal and State

authority would interact in the case of Federal facilities.

Since Congress expressly granted authority to the states

concerning some aspects of the Clean Air Act’s impact

on Federal facilities, the plaintiff’s argument is, in ess-

ence, based on the contention that certain other grants

of authority to the states must be implied from the phrase-

ology of Section 118 of the Act. Such an argument flies

in the face of the principle that, where a particular pro-

vision appears in a statute, the failure to include that

same requirement in another section of the statute will

not be deemed to have been inadvertent. 2 J. Sutherland,

Statutory Construction sec. 4915 (3 ed. 1943).

Cases decided to date which support the conclusion

arrived at herein include California v. Stastny, 4 ERC

1447 (C.D. Calif. 1972), appeal pending 9th Circuit, and

an unreported order in State of Alabama, et al v. Seeber,

et al (N.D. Ala., No. 72-939), June 5, 1973. Notice of

appeal filed June 28, 1973. In Stastny, the court held

4. Eg.McCullogh v. Maryland, 4, Wheat, 316, 436 (1819) ; Ohio

v. Thomas, 173 U.S. 276 (1899) ; Leslie Miller, Inc. v. Arkansas,

352 U.S. 187 (1956).

that “[dJefendants are not required to either apply for

or obtain permits from the Air Pollution Control Dis-

trict prior to operating or using any equipment or ma-

chines at the naval base at Long Beach, California.” 4

ERC at 1448. In Seeber, the court dismissed a complaint

which was quite similar to the one at bar.

We further note that a permit has absolutely nothing

to do with air quality. The substantive requirements of

the implementation plan (e.g., emission standards and

compliance schedules) do, and it is those “requirements”

which are essential to the improvement of air quality and

are, we believe, the “requirements” which are essential to

the improvement of air quality and are, we believe, the

“requirements respecting control and abatement of air

pollution” to which section 118 of the Clean Air Act

refers.

THE CLAIM AGAINST THE EPA

In its second claim for relief, the plaintiff contends

that the defendant Ruckelshaus,’ Ravan and the Environ-

mental Protection Agency have violated Section 113 of

the Clean Air Act, U.S.C. sec. 1857c-8, by failing “to

commence appropriate actions . . . to compel compliance

with the Kentucky Plan as to permits to operate, time

5. Pursuant to Rule 25(d) (1) F.R.Civ.P., Robert Fri. Acting

Administrator of the EPA, has been substitued as a de-

fendant in place of William Ruckelshaus since Mr. Ruckels-

haus has resigned from his former position as Administrator

of EPA.

10a

schedules, and emission limitations . . .” (Complaint

para. 42). In paragraph 41 of the complaint, the plaintiff

contends that there are “widespread violations of the

Kentucky Plan, because of the inability of the Common-

wealth of Kentucky to effectively enforce its rules and

regulations.”

Since. as is held above, the defendants correctly

construed their responsibility with respect to applying

for a state permit, the plaintiff's claim against the EPA

and its officers does not state a claim upon which relief

can be granted, for it was based on the assumption that

the defendants misconceived their duty with respect to

applying for permits. In any event, Section 113(a) of

the Clean Air Act clearly grants the Administrator dis-

cretionary authority and, consequently, the Administra-

tor’s failure to take action under Section 113(a) is un-

reviewable since it was agency action “committed to

agency discretion by law.” 5 U.S.C. sec. 701. See eg.,

United States v. Walker, 409 F.2d 477 (C.A. 9, 1970).

SOVEREIGN IMMUNITY

All defendants have vigorously asserted that the

doctrine of sovereign immunity is a barrier to the plain-

tiff’s suit. Since the doctrine is applicable it serves as an

alternate basis for this Court’s order.

Although the plaintiff listed in its complaint a num-

ber of statutes as the basis for this Court’s jurisdiction in

ceeenitiainaeeia ieee eam (nee

lla

the matter,’ the plaintiff has apparently chosen to rely

upon the Clean Air Act of 1970, 42 U.S.C. Section 1857

et seq., with respect to the question of waiver of sovereign

immunity."

The sovereign immunity argument may best be an-

alyzed in two steps. The first consideration is whether

this suit, although in form against officers and agencies

of the Federal Government, is actually a suit against the

sovereign. Once we determine that this suit is against

the sovereign, then we must also determine whether

there has been a waiver of sovereign immunity in this

instance.

To determine whether this suit against officers and

agencies of the Federal Government must be treated as a

suit against the sovereign, this Court is required to con-

sider whether the suit would expend itself “on the public

treasury or interfere with the public administration.”

6. The plaintiff alleges, on page one of its complaint, that

“(T)his action arises under the Fifth, Ninth, and Fourteenth

Amendments of the Constitution of the United States of Am-

erica; U.S.C. 42 Section 1331; U.S.C., Title 42, Section

1857, et seq.; U.S.C., Title 5, Section 702: U.S.C., Title 28,

Section 2201, et seq., and U.S.C., Title 28, Section 1361.”

7. The defendants argued that the statutes listed in footnote

six supra, did not vest this Court with jurisdiction. In its

memoranda opposing the defendants’ motions to dismiss

and for summary judgment, the plaintiffs relied entirely

on the Clean Air Act and did not urge that this Court had

jurisdiction under any of the other statutes which it had

invoked in its Complaint.

12a

Dugan v. Rank, 372 U.S. 709, 620-621 (1963). For if

the relief sought would interfere in a substantial way

with important government functions, the suit, although

nominally directed against individuals, is “a suit against

the Government over which the court, in the absence of

consent, has no jurisdiction.” Larson v. Domestic and

Foreign Corporation, 337 U.S. 782, 688 (1949)* In

referring to sovereign immunity, the Sixth Circuit re-

cently said:

Perhaps the minimum statement of that doctrine is

that litigation must not be allowed to stop govern-

ment in its tracks. Larson v. Domestic & Foreign

Commerce Corp., 337 U.S. 682, 704, 69 S. Ct. 1457,

93 1..Fd. 1628 (1949). In this regard the effect of

the action upon the sovereign rather than its form

is controlling. The fact that the defendants are all

named as individuals does not change the result.

[Ogletree v. McNamara, 449 F.2d 93 (C.A. 6.

1971)].

The question which this Court must address is wheth-

er this suit is barred because the relief which the plaintiff

requests would interfere with basic functions of national

defense and the carrying onward of congressionally au-

thorized activities. Even Professor Davis, one of the

8 The sovereign immunity doctrine is also applicable to the

Union Carbide Corporation since the Complaint herein only

concerns Union Carbide’s role as a contractor whose

actions are subject to the direction and control of the

Atomic Energy Commission. See Varson v. Roane, Anderson

Co., 342 U.S. 232, 236 (1952); United States v. Boyd, 378 US.

39 (1964).

l3a

foremost critics of the sovereign immunity doctrine, has

acknowledged that:

The most persuasive reason for sovereign immunity

that has been found in reports of cases is a remark

in a dissenting opinion of 18&2, that “The sovereign

should not, without its consent, be dispossessed by

judicial process of forts, arsenals, military posts

and ships of war, necessary to guard the national ex-

istence against insurrection and invasion . . .” [ United

States v. Lec, 106 U.S. 196, 226 (1882)! Judicial

interference would surely be harmful if the govern-

ment were dispossed of its military bases and

equipment during an emergency. [K. Davis. Admini-

strative Law Text 498 (3d ed. 1972)].

This Court is persuaded that, if the plaintiff's arguments

were accepted, the plaintiff could, although it disavows

any intention of doing so, interfere with the execution of

important Federal actions. In reaching the above con-

clusion, this Court has not ignored the provision, in Sec-

tion 118 of the Act, that “[t]he President may exempt

any emission source of any department, agency, or in-

strumentality in the executive branch from compliance

with such a requirement if he determines it to be in the

paramount interest of the United States to do so... .”

The foregoing provision does not dispel the possibility

that the plaintiff's permit powers, if applied to the de-

fendants, might seriously interfere with important Fed-

eral functions. First, Section 118 limits the President’s

authority to grant an exemption to situations where the

President has “requested such appropriation [for air

pollution control] as a part of the budgetary process and

l4a

the Cungress shall have failed to make available such re-

quested appropriation.” Moreover, the President is not

empowered to grant exemptions with respect to new

stationary sources. It is readily apparent, therefore, that

Section 118 does not grant the President sufficient author-

ity to sweep aside all interference with vital Federal func-

tions which may arise if the plaintiff were allowed to im-

pose its permit power on the defendants. The rationale

supporting sovereign immunity in this case is, therefore,

undiminished.

With respect to the question of whether Congress has

waived the sovereign immunity of the United States, only

a brief examination of the statutes relied upon by the

plaintiff, with the exception of the Clean Air Act, is

necessary.

28 U.S.C. Section 1331 has never been construed as

a waiver of the sovereign immunity of the United States

from suit. E.g., Anderson v. United States, 225 F.2d

(C.A. 5, 1956); Cotter Corporation v. Seaborg, 370 F.2d

686 (C.A. 10, 1966). Moreover, the Declaratory Judg-

ment Act, 28 U.S.C. Sections 2201, 2202. is procedural

in nature and does noi enlarge the jurisdiction of the dis-

trict courts or waive the sovereign immunity of the United

States. E.g., White v. Administrator of General Services

Admin., 343 F.2d 444 (C.A. 9, 1965); Donnely v. Mavar

Shrimp & Oyster Co., 190 F.2d 409 (C.A. 5, 1951). As

has been decided on many occasions, 28 U.S.C. Section

1361 did not waive sovereign immunity since it was only

intended to ease the burden of proceeding against officials

formerly suable only in the District of Columbia. £.g.,

1Sa

Jarrett v. Resor, 426 F.2d 213 (C.A. 9, 1970); Carter v.

Seamans, 411 F.2d 767 (C.A. 5, 1969). Although the

plaintiff also invokes the Fifth, Ninth and Fourteenth

Amendments to the Constitution of the United States, it

is settled beyond doubt that constitutional provisions

have no effect upon the sovereign immunity from sui.

E.g., Lynch v. United States, 292 U.S. 599 (1934).

The plaintiff z!so cites the Administrative Procedure

Act, 5 U.S.C. Section 703, et seg. In the Sixth Circuit,

the A.P.A. is not deemed an independent grant of juris-

diction or a waiver of sovereign immunity. Sierra Club

v. Hickel, 467 F.2d 1048, 1054 (C.A. 6, 1972).* cert. den.

41 U.S.L.W. 35235.

We now arrive at the critical question concerning

waiver of sovereign immunity; whether Congress in-

tended, by anacting the Clean Air Act, to waive the Fed-

eral Government’s immunity from a suit attempting to

compell officers in charge of Federal installations to ob-

tain state permits for equipment which discharges pollu-

tants into the ambient air. The plaintiff contends that.

by enacting Section 118 of the Clean Air Act, 42 U.S.C.

sc. 1857f, Congress waived the sovereign immunity of the

United States. Section 118 does not expressly waive the

sovereign immunity of the Federal Government. The

9. After thoroughly reviewing the relationship of the A.P.A.

to the doctrine of sovereign immunity, the Fourth Circuit

also concluded that “the doctrine of sovereign immunity

applies independently of the judicial review provisions of

the A.P.A.” Littet v. Morton, 445 F2d 1207, 1213 (CA. 4,

1971).

l6a

plaintiff has attempted to overcome the absence of ex-

press language concerning waiver by quoting from the

debate on the House and Senate versions of the Clean Air

Act of 1970. Putting aside the small weight which is

usually given to debate on the floor in resolving questions

of statutory interpretation, the debate upon which the

plaintiff relies simply does not address the question of

whether Congress intended that Federal installations

must submit permit applications to states which have in-

corporated a permit provision in their implementation

plans.

In two sections of the Clean Air Act, Congress pro-

vided iudicial remedies and, in so doing, waived the sover-

eign immunity of the United States. Section 304 and

307: 42 U.S.C. sections 1857h-2 and 1857h-5. It is axio-

matic, however, that a waiver of sovereign immunity is

coextensive with the remedies which Congress provided.

That Congress did not provide a remedy with respect to

the Government’s decision that a state permit need not be

obtained must be carefully noted.

For the reasons discussed above, it is obvious that

Congress did not unequivocally waive the sovereign im-

munity of the United States from suits attempting to

compel its officers to obtain permits from state agencies

before discharging, from Federal facilities under their

control, substances into the ambient air.

It has been settled law since McCulloch v. Maryland

17 U.S. (4 Wheat.) 316 (1819), that by virtue of Article

VI. clause 2 of the Constitution there is an entire absence

of power on the part of the states to subject instrumental-

17a

ities of the Federal government to state regulation or

control. And, as said in Mayo vy. United States. 319 U.S

441 (1943): : |

This treedom is inherent in sovereignty .. . where

wr Congress does not affimatively declare its in-

strumentalities or property subject ‘to regulation or

taxation the inherent freedom continues [pp. 447-

48].

An intention by Congress to depart from this long settled

principle cannot be inferred or implied. In the words of

the Supreme Court, there must be a “clear congressional

mandate.” Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110

122 (1954). “Cannot be implied but must be unequivocally

expressed.” (/nited States v. King, 395 U.S. 1, 4 (1969)

Soriano v. United States, 352 U.S. 270 (1957) |

If the Congress intended such a mandate in the pres-

ent situation, we must assume that it would have said so

plainly, as it has done when it did so intend.”

10. See for example, section 10 of the Federal Control Act (40

Stat. 456 (1918), which provides in pertinent part:

| “That carriers while under Federal contro! shall be sub-

ject to all laws and liabilities as common carriers, whether

arising under State or Federal laws or at common law

Actions at law or suits in equity may be brought « ond

against such carriers... and in any action at law or suit in

equity against the carrier, no defense shall be made thereto

upon the ground that the carrier is an instrumentality or

agency of the Federal Government.”