Memorandum — Hancock v. Train

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“In te ‘Supreme Gourt of the Hitited Ate

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COMMONWEALTH OF kebtuciy. EX REL Ep W. HANCOCK,

ATTORNEY GENERAL, PETITIONER

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‘Russert E! Train, ADMINISTRATOR, ENVIRONMENTAL

"PROTECTION AGENCY, ET AL.

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ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

~ FOR THE SIXTH CIRCUIT

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MEMORANDUM FOR THE RESPONDENTS

Ropert H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

ee

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-220

COMMONWEALTH OF KENTUCKY, EX REL Ep W. HANCOCK,

ATTORNEY GENERAL, PETITIONER

Vv.

RUSSELL E. TRAIN, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

1. Petitioner, Commonwealth of Kentucky, seeks review

of the judgment of the United States Court of Appeals

for the Sixth Circuit in this case. That judgment holds

that Section 118 of the Clean Air Act of 1970, 84

Stat. 1678, 1689, as renumbered and amended, 42

U.S.C. 1857f, does not require federal officers to obtain

emission control permits from the Kentucky Air Pol-

lution Control Commission as a prerequisite to operating

federal facilities in Kentucky.

The relevant facts and issues are accurately stated in

the opinions of the district court (Pet. App. A) and the

court of appeals (Pet. App. B) and may be summarized

as follows: Kentucky filed suit in the United States

(1)

2

District Court for the Western District of Kentucky

seeking declaratory and injunctive relief against certain

officers of the United States responsible for operating

various federal installations within Kentucky. The com-

plaint alleged that a Kentucky air pollution regulation

required all operators of potential air emission sources

to obtain permits from the Kentucky Air Pollution Con-

trol Commission, that Section 118 of the Clean Air Act

of 1970 made this requirement applicable to the federal

defendants, and that the federal defendants had neither

applied for nor obtained such permits.

After submission of the case on cross-motions for sum-

mary judgment, the district court held in favor of respond-

ents. On appeal, the court of appeals affirmed. It held

that Section 118 of the Clean Air Act of 1970 requires sub-

stantive compliance by non-exempt federal facilities with

state clean air standards but does not subject federal

facilities to state permit requirements. The court also

compared Section 118 to Section 304(a) permitting citi-

zens’ suits against the United States and concluded that

the state’s suit against the United States was also barred

by sovereign immunity and the Supremacy Clause of the

Constitution (Pet. App. B 33a-34a).

2. In our view the decision of the Sixth Circuit is

correct. However, in an essentially similar suit, the

United States Court of Appeals for the Fifth Circuit, in

State of Alabama v. Seeber, 502 F. 2d 1238, has subse-

quently held that federal installations are indeed subject

to state permit requirements and has expressly disagreed

with both aspects of the Sixth Circuit’s holding in the

present case.' The federal parties in that case are filing

\The same basic issue is presently pending in California v. Stastny,

No. 72-2905, C.A. 9, appeal docketed November 6, 1972; Illinois v.

Department of Defense, N.D. lll., Civ. No. 74-C-3122 (Joliet Arsenal air

case); United States v. Pennsylvania Environmental Hearing

Board, M.D. Pa., Civ. No. 73-454; and Chattanooga- Hamilton County

Air Pollution Control Board v. ICI-Atlas, E.D. Tenn., Civ. No. 6581

(Volunteer Arsenal air case).

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a petition for a writ of certiorari seeking review of that

decision.2 We accordingly do not oppose the granting of

the petition for a writ of certiorari in this case.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

JANUARY 1975.

2We are furnishing a copy of our petition in that case to the peti-

tioner here.

DOJ-1975-01