Amicus Brief — Hancock v. Train

IN THE

Supreme Court of the

OCTOBER TERM, 1974

No. 74-220

ComMMONWEALTH OF Kentucky, ex rel. Ep W. Hancock,

ATTORNEY GENERAL,

Petitioner,

Vv.

Russet, E. Trars, ApmMryisTrator, ENviRONMENTAL

Protection Acency, et al.,

Respondents.

Ow Writ or CERTIORARI TO THE Untrep States Court or

APPEALS FOR THE SrxtH Circuit

BRIEF FOR THE STATE OF NEW YORK

AS AMICUS CURIAE

Louis J. Lerxow1tTz

Attorney General of the

State of New York

Attorney for Amicus Curiae

State of New York

Office & P. O. Address

Two World Trade Center

New York, New York 10047

Tel. No, (212) 488-7561

Samvet A. HmsHowrrz

First Assistant Attorney General

Pump WEINBERG

Ricuarp G. Bercer

Assistant Attorneys General

of Counsel

TABLE OF CONTENTS

ES eae ere eons eee

a i vebuedees

Summary of Argument ..............ceeeeeeeeees

Point I—The Federal! Clean Air Act “ees not exempt

federal facilities which are sources of air pollu-

tion from compliance with federally-approved

State permit procedures for control and abate-

MOS GE GHP WOTUTIOR 2 oc cccccccccccccccccccces

Porxt I]—Compliance by federal instrumentalities

causing air pollution with air pollution control

laws enacted and approved pursuant to federal

law does not violate the supremacy clause ......

Pornt I1I—The doctrine of sovereign immunity does

not bar suit by a State to require a federal

facility which is a source of air pollutants to

comply with State permit requirements ........

A. Congress has consented to suit in 4 118 of the

SED BP BD ccccccccccvescccccsccccssecs

B. The doctrine of sovereign immunity does not

bar suit against a federal agent to compel him

to perform a non-discretionary, ministerial

duty to obey federal law .............0055:

Cn... eek debe ebdbsneweebesseaenesé ous

11

14

14

ii

TABLE OF AUTHORITIES

Cases Cited: PAGE

Alabama vy. Seeber, 502 F.2d 1238 (Sth Cir. 1974) ..2, 4,7,

8, 10, 12, 14, 16

California v. E.P.A., —— F. 2d 7 E.R.C. 1667 (9th

GE HPUED beececccesacedsarctevecestussveses 16, 17

City of Milwaukee vy. Veterans Administration Cen-

ter, 357 F. Supp. 192 (E.D. Wis. 1973) ......... 14, 15

Dugar. v. Rank, 372 U.S. GOO 0... cece cee cee 17

Feres v. United States, 340 U.S. 135, 140 .......... 14

Getty Ou v. Ruckelshaus, 342 F. Supp. 1006 (D.C.

Del. 1972), mod. on other gds. 467 F. 2d 349,

cert. denied 490 U.S. 1125 ..............005- 13, 15, 16

In Re Grand Jury Proceedings, —— F. Supp. ——

7 Envir. Rptr. cases 1799 (W.D. Pa, 1975) .... 16

Larson v. Domestic and Foreign Commerce Corp.,

See es ME Sx ecuiabeveedeunat cadebeatcenaes 17

Malone v. Bowdoin, 369 U.S. 643 ....... 0... . cee ee 17

Mayo v. United States, 319 U.S. 441 .............. 3, 12

Minnesota v. Hitchcock, 185 U.S. 373 .............. 17

io Pg EMR se 8 ht Ee ree 11

Steward Machine Co. v. Davis, 301 U.S. 548 ........ 11

Tcherepnin v. Knight, 389 U.S. 332 ................ 8

Train v. Natural Resources Defense Council, ——

ts wee, GD tree GED ccc cccccecccsucecs 5, 6

Union Brokerage Co. v. Jensen, 322 U.S. 202 ...... 12

U.S. v. Champlin Rfg. Co., 341 U.S. 290 ............ 9

United States v. King, 395 U.S. 1 .............08. 14

U.S. v. Neifert-White Co., 390 U.S. 228 ............ 8

Walla Walla v. Walla Walla Water Co, 172 U.S.1 10

Washington v. Udall, 417 F.2d 1310 (9th Cir. 1969) 16

TABLE OF AUTHORITIES iii

Statutes & Regulations Cited: PAGE

Air Quality Act of 1967 (Pub. Law 90-148, 81 Stat.

DD Sondddcbbene tednseskeeséadendsncansancnes 5

1963 Clean Air Act (Pub. Law 88-206, 77 Stat. 392,

SE Pa EEE nda ccucieodnehsehedues ccuunteses 5

Clear Air Act Amendments of 1970, Publ. 91-604,

84 Stat. 1676,

GB UBC. Po MBBTIBBT 2 nn ccccccccccccccccess 1,2

$110, 42 U.S.C. $1857¢-5 ............ 2, 3, 4, 6, 16, 18

$118, 42 U.S.C. $ 1857f ............ 3, 4, 5, 8, 9, 10, 12,

14, 16, 17, 18

§109 (42 U.S.C. $1857 c-4) ....... cece ween eee 3, 6

$116 (42 U.S.C. $1857 d-1) .............00.- 3, 9, 10

§§ 111, 112, and 114 (42 U.S.C. § 1857c-6, c-7 and

GE navuncdencnacendenescnseenescess 3, 9, 10, 12

§ 304 (42 U.S.C. § 1857 h-2) ..... 4, 9,12, 14, 15, 17,18

£2118 (4B UBC. © 1GBFeB) .. nc cccccccccccces 5, 9,13

Social Security Act of 1935,

Ce Gs NEED nawcoccasvvcneceeeésacecaes 11

New York Environmental Conservation Law, Article

19,

> Gras DEE oxcduavdnecwonnckanenncansce 13

GD GI, GED cdccccccececcceccceess 6

40 C.F.R. § 52.1076 and § 52.1077 ............. 13

GD Gere GD cnccccceccecscesnccccescss 2

F, S FS % Peo 6

Kentucky Administrative Regulation No. AP-1,

OD ccndceccuncenudscenhduesecacnecebhennssacec 2,6

New York Air Pollution Control Rule 201 .......... 2

Miscellaneous:

Cong. Rec., Vol. 116, Part 24, p. 32911 [Sept. 21,

SEE éecdbedss badeenndcnnndaceeaantndsesteses 2

Senate Report No. 91-1196, 91st Cong. 2d Sess. . .7, 8,15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-220

+

ww

CoMMONWEALTH OF Kentucky, ex rel. Ev W. Hanoock,

ATTORNEY GENERAL,

Petitioner,

v.

Russet, E, Trarn, ADMINISTRATOR, ENVIRONMENTAL

Protection AceEncy, et al.,

Respondents.

Own Writ or CERTIORARI TO THE Unitrep States Court or

APPEALS FOR THE SrxtH Circuit

i

v

BRIEF FOR THE STATE OF NEW YORK

AS AMICUS CURIAE

Interest of Amicus

New York, as other states, has prepared a Clean Air

Implementation Plan and passed new legislation in an

effort to improve the quality of the air breathed by its

citizens. New York Environmental Conservation Law,

Article 19. It needs no underscoring at this late date to

emphasize that air pollution has become a national prob-

lem of serious dimensions and a recognized health hazard.

Congress itself has vigorously responded to this problem

through enactment of the Clean Air Act, 42 U.S.C. §§ 1857-

2

18571, which creates the federal machinery to insure that

each state’s Clean Air Implementation Plan meets vigorous

standards, but expressly leaves the major enforcement re-

sponsibility in the hands of the states. See 4 110, 42 U.S.C.

§ 1857¢-5.

Central to New York’s plan to control air pollution is its

Air Pollution Control Rule 201 (6 NYCRR Part 201), 40

CFR $52.1675 which requires that new and existing

sources of air pollution obtain permits for construction and

operation. The regulation is similar to Kentucky Admin-

istrative Regulation No. AP-1, $5, involved in this case,

Were these rules to be held inapplicable to federal installa-

tions, air quality could not be guaranteed in those states.

Emissions from federal installations are significant

sources of air pollution in all parts of the Nation. New

York, for example, has Army, Navy and Air Force

installations as well as numerous other federal buildings

located within its borders. Control of emissions from these

sources is essential to clean air in New York. As former

President Nixon stated in his 1970 message to Congress

on the Environment (Cong. Rec., Vol. 116, Part 24, p. 32911

[Sept. 21, 1970]):

“For years, many federal facilities have themselves

been among the worst polluters.”

New York’s vital interest in insuring the protection and

enhancement of its air quality prompts our deep concern

with the outcome of this litigation. Should the courts con-

clude that federal installations are immune from the

states’ permit programs under the Clean Air Act a severe

blow will have been dealt the effectiveness of that im-

portant statute—our citizens’ first line of defense against

contamination of our air.

New York has already participated as amicus curiae

in Alabama vy. Seeber, 502 F.2d 1238 (Sth Cir. 1974), which

3

presented identical issues and in which the court held

that § 118 of the Clean Air Act, 42 U.S.C. § 1857f, requires

Federal sources of air pollution to comply with State air

quality control permit procedures.

Summary of Argument

I. The Clean Air Act Amendments of 1970, Pub. L.

91-604, 84 Stat. 1676, established a new program of federal-

state cooperation for the control of air pollution. The

federal government in §109 (42 U.S.C. $1857 c-4) sets

overall air quality standards and charges the states with

primary responsibility for their enforcement. Section

110 (42 U.S.C. § 1857 ¢5).. In $118 (42 U.S.C. § 1857f)

federal facilities are made subject to state and local air

quality requirements “to the same extent as any person is

subject to such requirements.” Included among these re-

quirements is the central regulatory scheme adopted by all

states, the permit system. The legislative history of the

Act makes it clear that Congress intended the states to

regulate federal facilities with respect to air quality and

the overall scheme of the Act demonstrates this as well.

Section 116 (42 U.S.C. § 1857 d-1) uses the term “require-

ments respecting control and abatement of air pollution”

just as § 118 does, to mean the entire control strategy of

a state. Congress exempted certain federal facilities from

state regu'ation in §§111, 112 and 114 (42 U.S.C. § 1857

e-6, c-7 and ¢-9). Had it intended to create other exemp-

tions, it could have easily so specified.

II. The Supremacy Clause does not bar state regulation

of federal facilities with respect to air quality controls.

Congress specifically authorized state regulation in § 118

of the Clean Air Act, and this meets the test described in

Mayo.v. United States, 319 U.S. 441, 448, that Congress

“affirmatively declare” federal instrumentalities subject to

state regulation. Sections 111 and 114 as well as 118 spe-

4

cifically discuss state regulation of certain federal facilities.

Since violation of a state implementation plan is a violation

of federal law as well as state law, the Supremacy Clause

does not absolve federal facilities from compliance.

III. Likewise, the doctrine of sovereign immunity does not

bar suit by a state to require federal facilities to comply

with state air quality permit requirements. Congress

consented to suit in § 118 when it declared federal agencies

subject to state air quality requirements ‘‘to the same

extent as any person.” The court below mistakenly char-

acterized the citizen suit provision in § 304 (42 U.S.C.

§ 1857 h-2) as the only express waiver of immunity from

suit by the federal government in the Act. That provi-

sion, however deals only with citizen suits, not suits by a

state to enforce its own air quality implementation plan.

Moreover, there is no federal immunity from suits to

compel federal agencies to perform ministerial acts man-

dated by federal law. As $110 and $118, read together,

require federal agencies to obtain state air quality per-

mits, these agencies are mandated by Congress to obtain

a permit and the federal courts have jurisdiction to so

direct them.

POINT I

The Federal Clean Air Act does not exempt fed-

eral facilities which are sources of air pollution from

compliance with federally-approved State permit pro-

cedures for control and abatement of air pollution.

The only issue in this case is whether federal facilities

which are sources of air pollution are made subject to state

air quality permit regulations by § 118 of the 1970 Amend-

ments to the Clean Air Act (42 U.S.C. § 1857f). The court

below held that federal facilities are exempt (Appendix p.

157), while the Court of Appeals for the Fifth Cireuit,

rejecting that view, held them subject to state regulation.

Alabama vy. Seeber, 502 F.2d 1238 (5th Cir. 1974). Thus

there exists a clear dispute between circuits about the

5

applicability of 4118 of the Act to pollution caused by

federally-operated sources.

This Court has recently interpreted the Clean Air Act

Amendments of 1970 in Train v. Natural Resources Defense

Council, —— U.S. ——, 43 USLW 4467, describing in de-

tail the extensive cooperation between the Federal govern-

ment and the states essential for this ‘‘comprehensive

planning task of the first magnitude . . . to be accom-

plished in a relatively short time’’ (43 USLW 4469). Yet

the decision below effectively excludes from regulation all

federally-operated sources of air pollution by carrying out

an exemption which nowhere appears in the Act. In this

legislation, Congress exerted its powers in a comprehen-

sive way to control the emission of harmful substances

into the air. Yet the preamble ‘‘that the prevention and

control of air pollution at its source is the primary respon-

sibility of the states and local governments’’ remained

unchanged from the 1963 Clean Air Act (Pub. Law 88-206,

77 Stat. 392, Title I $101).

The 1970 amendments departed sharply from the former

course of federal involvement in air pollution control.

Instead of encouraging states to cooperate in interstate

compacts for the control of air pollutants, as in the Air

Quality Act of 1967 (Pub. Law 90-148, 81 Stat. 485), Con-

gress devised a master plan to oversee air quality control

nationwide. As described in detail in Train v. Natural

Resources Defense Cowncil, supra, the amendments of 1970

gave the U. S. Environmental Protection Agency (EPA)

authority to require states ‘‘to obtain air quality of speci-

fied standards * * * within a specified period of time.’’ 43

USLW 4468. L. the alternative, the EPA can enforce these

air quality standards itself. Section 113 (42 U.S.C.

1857¢-8).

The question before this Court is whether Congress in-

tended federal facilities which are sources of air emissions

to be immune from state air quality control permit require-

ments. The overall design of this unique and complicated

6

Act and in the legislative history which evolved it demon-

strates the clear congressional intent to authorize the states

to enforce the Act against all emission sources, whether

operated by private interests, municipalities, the states

themselves, or federal agencies—a result dictated by public

health needs and by simple fairness.

In Section 110 of the amendments (42 U.S.C. § 1857¢-5),

the basic requirements for the states under the Act and the

relationship between them and the federal government are

defined. While the federal government sets overall air

quality standards for the United States (4 109, 42 U.S.C.

§ 1857¢-4), the states are responsible for implementation

of these goals under criteria set forth in $110. States are

required to prepare plans to meet air quality standards,

which must include strategies, laws and regulations to con-

trol, monitor and inspect al] emission sources as well as

land use and transportation strategies if necessary—plans

which are then subject to federal accounting as well as

periodic review to ensure their adequacy and compre-

hensiveness. See § 110e (42 U.S.C. § 1857¢-5[¢]); Train v.

N.R.D.., supra, 43 USLW 4467, 4468.

A permit program to control stationary sources of air

pollution such as Kentucky Administrative Regulation No.

AP-1, $5, 40 C.F.R. §52.920-.930, has been adopted by

every state in the Union. See 40 C.F.R. Part 52. The Act

clearly envisages permit systems as a control strategy.

In fact, the original draft regulations of the U. S. Environ-

mental Protection Agency required every implementation

plan to include a permit system. 36 FR 158, Aug. 14, 1971.

Section 110 (a)(2)(B) states that a plan must include:

‘‘emission limitations, schedules, and timetables for

compliance with such limitations, and such other meas-

ures as may be necessary to ensure attainment

and maintenance of such primary and secondary

standard. . .”’

The task of inventorying emission sources in an air quality

control region, gathering information about their processes

7

and emissions, and then setting emission limitations and

compliance schedules for them would have been unfeasible

if the burden were not placed upon the sources to come

forward with the necessary information for certification.

The permit systems of Kentucky and other states are there-

fore central to the accomplishment of the objectives of the

Act. Alabama v. Seeber, 502 F.2d 1238, 1243.

The federal agencies do not challenge the legitimacy of

state permit programs. Instead they seek blanket excep-

tion for all federal facilities which are sources of emissions.

As part of this contention they allege, and the District

Court below agreed (App. 136) ‘‘that a permit has abso-

lutely nothing to do with air quality.” This proposition is

unsupportable, especially since the Administrator has spe-

cificially approved permit systems as a control strategy.

To argue that Congress has authorized the states to enact

plans subject to federal FPA approval to curtail air pollu-

tion within their borders but that certain emissions, while

harmful, are beyond regulation, recalls George Orwell’s

dictum that some animals are more equa! than others.

Congress was sensitive to the issue of federal-state rela-

tionships in drafting this Act. The problem of federally

established air quality standards being administered by

state officials was recognized by Congress. The Senate

Report states,

‘‘The Committee does not intend to diminish either

the authority or responsibility of state and local gov-

ernments. As is clear in sections 111 [later 110), 113

flater 111] and 114 [later deleted] the states would be

expected to have or obtain adequate authority to en-

sure that the provisions of the Act are enforced.’’

Senate Report, 91-1196 at p. 21.

As to federal facilities vhich were sources of emissions,

Congress expressly found that:

‘‘Federal agencies have been notoriously laggard in

abating pollution and in requesting appropriations to

develop control measures . . .” Senate Report 91-1196

9ist Cong., 2d Sess. at p. 37.

Congress explicitly rejected self-enforcement of new emis-

sions limitations by federal facilities as not consonant with

protection of the public health. Federally-caused emis-

sions were made subject to the full requirements of the Act

in a separate section, $118 (42 U.S.C. §1857f), which

states:

‘‘Each department, agency, and instrumentality of

the executive, legislative and judicial branches of the

Federal Government (1) having any jurisdiction over

any property, a facility, or (2) engaged in any activity

resulting, or which may result, in the +ischarge of air

pollutants, shall comply with Federal, State, interstate

and local requirements respecting control and abate-

ment of air pollution to the same extent that any per-

son is subject to such requirements.’’ (Emphasis

supplied )

No clearer pronouncement of Congress’ intent could have

been devised. As the court stated in Alabama v. Seeber,

supra, this section ‘‘conveys a Congressional intent that

federal facilities are to be treated equally with private

facilities in the scheme of control established by the Act.’’

502 F.2d at 1243. From the very design of the Act, it was

necessary for federal facilities to be subject to state air

pollution regulations, including permit regulations, because

the states were assigned the duty of implementing the Act

in the first instance. This Court should give the statute a

construction consistent with its plain and clearly-expressed

meaning, U.S. v. Neifert-White Co., 390 U.S. 228, 232;

Tcherepnin v. Knight, 389 U.S. 332, 336, particularly where,

as here, the Act is a remedial one and one designed to pro-

tect the public interest. U.S. v. Champlin Rfg. Co., 341

U.S. 290, 298.

The strained construction of 4118 urged by respond-

ents is inconsistent with related portions of the Act. The

cr

phrase ‘‘requirements respecting control and abatement of

air pollution’’ used in $118 is a term of art which is also

used in $116 (42 U.S.C. 4 1857d-1), to distinguish from

emission limitations. “Requirements respecting control and

abatement of air pollution” means all other control strat-

egies for air pollution, such as monitoring, inspection and

permits. And § 116 specifically provides that the States are

not preempted from utilizing any of these enforcement

methods. Read in conjunction with $118, permitting the

states to enforce these “requirements” as against Federal

polluters, the Act clearly means that permit procedures

are available to the States to regulate Federally-maintained

sources of pollution. Federal facilities are elsewhere made

subject to suit for violation of “an emission standard or

limitation” in § 304(a)(1) of the Act (42 U.S.C. § 1857h-2

{a}{1]). The term “requirements” is a broader term and

is used in § 118 to encompass state administrative regula-

tion of federal facilities, and therefore permit programs.

In several other sections of the Act, Congress was care-

ful to exempt federal facilities from state control. Section

111 (42 U.S.C. §1857e-6) deals with the special problem

presented by the construction of certain types of new

sources which pose significant air pollution problems, such

as fossil-fuel power plants, smelters and foundries. These

new sources are subject to standards of performance set

by the Administrator based upon the latest control tech-

nology.* While the Administrator may delegate his powers

under § 111 to a state, § 111(c)(1) prohibits such delegation

‘*with all respect to new sources owned or operated by the

United States.’’ The design and performance of new fed-

eral sources is completely at the discretion of the federal

government. In contrast, other federal facilities must meet

state requirements. Similarly, in $114 (42 U.S.C.

§ 1857e-9), new federal facilities are exempted from state

monitoring and inspection if the Administrator has gen-

* The term ‘‘new sources’’ here describes only those new sources

to which a standard of performance applies. 111(a)(2) (42 U.S.C.

§ 1857¢-6[a][2]).

10

erally delegated those powers to a State; and in $112 (42

U.S.C. §1857e-7), the Administrator is prohibited from

delegating his authority to control certain especially hazard-

ous emissions not included in ambient air quality standards

with respect to all federal facilities. This Court should

apply the doctrine of expressio wnius est exclusio alterius.

Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 22. As

Congress has taken pains to exempt federal sources of

emissions from state control in some instances, it must be

assumed that if it had intended to exempt federal facilities

in all cases, it would have done so. Alabama v. Seeber,

supra, at 1244.

The Court below, in holding federal facilities exempt

from state permit requirements, made much of the distine-

tion between ‘‘substantive” emission limitations and other

administrative air quality procedures such as permits

(App. 165), concluding the former were applicable to fed-

eral facilities and the latter were not. But the court totally

misread $118, which plainly states that Federally-main-

tained sources are subject to State “requirements respecting

control and abatement of air pollution”’—a term which

includes permit programs (see § 116).

Moreover, the monitoring and inspection procedures re-

quired by § 114 are certainly as much ‘‘administrative regu-

lations’’ as permit requirements. Congress found it ac-

ceptable for state officials to be delegated the authority to

require all federal sources other than new ones to be sub-

ject to federally-approved state regulations regarding

emission records, installation of monitoring equipment and

entry for inspection. Thus Congress certainly intended

for states to monitor and inspect federal facilities, yet

respondents argue that those facilities are exempt from

state permit procedures. The fallacy of this argument is

self-evident and it should be rejected. As the court in Ala-

bama v. Seeber, supra, stated, ‘‘the substantive-procedural

overlay” adopted by the court below in an effort to dis-

tinguish between emission standards and permit programs

“draws no sustenance from the Act itself” and is merely

“a semantical red herring.” 502 F.2d at 1245.

11

POINT Il

Compliance by federal instrumentalities causing air

pollution with air pollution control laws enacted and

approved pursuant to federal law does not violate the

supremacy clause.

The court below held that “[{i]n the absence of a clear

congressional purpose to subject federal agencies to state

regulation, the district court was prevented by the Su-

premacy Clause from granting the injunctive relief sought

by the plaintiff’ (App. 165). This holding was based upon

a misunderstanding of the workings of the Act and of the

Congressional intent.

There can be no violation of the Supremacy Clause where,

as here, Congress explicitly authorized state regulation of

federal] installations under a federal act. The scheme of

the Act is that ambient air quality standards are set by

the federal government but stationary source regulation,

including the permit program and emissions limitations, is

delegated to the states. This is permissible under our

federal system and is a method followed in many areas

of law enforcement. For example, the Social Security Act

of 1935, 42 U.S.C. § 501-508, which established a federal

program of unemployment insurance administered by the

states, was held constitutional in Steward Machine Co. v.

Davis, 301 U.S. 548, against an attack on the grounds

that the Act violated the federal-state relationship as de-

fined in the Tenth Amendment. And as Mr. Justice Franx-

FURTER said in New York v. O’Neill, 359 U.S. 1, 11, involv-

ing reciprocal state agreements to extradite witnesses for

criminal proceedings:

“The manifold arrangements by which the Federal and

State Governments collaborate constitute an extensive

network of cooperative governmental] activities not

for:nulated in the Constitution but not offensive to any

of its provisions or prohibitions.”

12

As this Court has noted, “[W]here the Government has

provided for collaboration the courts should not find con-

flict.” Union Brokerage Co v. Jensen, 322 U.S. 202, 209.

In Mayo v. United States, 319 U.S. 441, 446, this Court

held that “(ijt lies within congressional power to authorize

regulation, including taxation, by the state of federal in-

strumentalities.”” Under the Clean Air Act the states act

in effect as agents of the federal government and are

explicitly awarded the authority to regulate federal facili-

ties. Section 118 provides that federal agencies must com-

ply with state “requirements respecting contro] and

abatement of air pollution to the same extent ‘that any

person is subject to such requirements.” This provision

fully satisfies the test, enunciated in the Mayo case, supra,

319 U.S. at 448, that Congress must ‘‘affirmatively declare”

federal instrumentalities or property subject to state

regulations. Alabama v. Seeber, supra, 502 F.2d at 1247-

1248.

Likewise, § 114, as we have shown, authorizes the Ad-

ministrator to delegate to the states authority to monitor

and inspect all but new federal facilities. And § 304 makes

federal sources subject to citizen suits for violation of “an

emission standard or limitation’’ or ‘‘an order issued by

the Administrator or State with respect to such a standard

or limitation * * *.” It is odd that defendants insist in

the face of these repeated instances of Congressional dele-

gation to the states that the Supremacy Clause bars state

action here. And it would have been anomalous for the

authors of the Act to have given the states such powerful

authority over air pollution within their borders and then

denied them authority over federal sources within those

same states’ borders.

Further, the refusal of TVA, Army and Atomic Energy

Commission to comply with Kentucky’s permit program is

a federal offense. The Act commands the states to devise

plans to implement the national ambient air quality stand-

13

ards set by the Administrator. The Administrator must

then approve each plan and promulgate his approval as a

regulation (40 C.F.R. § 52.02). The effect of his action in

approving a state plan is to make it federal law as well.

This eliminates any issue under the Supremacy Clause. A

state official in regulating a federal facility is merely acting

in his capacity as a federal agent, pursuant to federal law.

This point ‘s clearly shown by the Administrator’s power

to disapprove state implementation plans and his subse-

quent promulgation of replacement provisions, In such

cases state officials in enforcing an implementation plan

will be acting solely pursuant to federal law. (See 40

C.F.R. § 52.1076 and $52.1077 where the Administrator

promulgated replacement provisions for new source review

and source surveillance for the State of Maryland).

Section 112(a)(1) (42 U.S.C. § 1857e-8[a][1]) also dem-

onstrates thet state plans have the status of federal law.

It provides:

“Whenever * * * the Administrator finds that any

person is in violation of any requirement of an ap-

plicable implementation plan, * * * the Administrator

may issue an order requiring such person to comply

with the requirements of the plan or he may bring a

civil action * * *°.’’

This empowers the Administrator to enforce by order

or civil suit any part of an applicable state implementation

plan. If the plans were only state law and not federal

law, the Administrator would have no authority to enforce

them. See Getty Oil v. Ruckelshaus, 342 F. Supp. 1006,

1017 (D.C. Del. 1972), mod. on other gds. 467 F. 2d 349,

cert. denied 409 U.S. 1125:

“In the terminology of the statute and regulations,

Delaware Regulation XV is a part of the compliance

schedule incorporated in Delaware’s Implementation

Plan. It received federal approval and violation

me te ee ee ee ee

14

thereof is a federal crime enforceable by the Admin-

istrator.”’

Moreover, the statute provides (4 304) that if a citizen

sues to enforce a provision of a state plan, that action is

considered one involving a federal question and is to be

brought in a federal district court.

Thus, when the defendants refused to comply with Ken-

tucky’s permit regulation, they were in violation of fed-

eral law, and the Supremacy Clause did not absolve them

from compliance.

POINT Ill

The doctrine of sovereign immunity does not bar

suit by a State to require a federal facility which is a

source of air pollutants to comply with State permit

requirements.

A. Congress has consented to suit in § 118 of the

Clean Air Act.

It is fundamental that Congress through legislation may

consent to suit against federal instrumentalities in all or

some cases, Feres v. United States, 340 U.S. 135, 140. See-

tion 118 of the Clean Air Act constitutes such consent.

The threshold question here is whether Congress acted

in such a manner as to unequivocally consent to be sued

for violations of state permit regulations. United States

v. King, 395 U.S. 1. Section 118 declares that all federal

agencies “shall comply with Federal, State, interstate and

local requirements respecting control and abatement of air

pollution to the same extent that any person is subject to

such requirements.’’ As any person may be required by

legal action to comply with state permit requirements, § 118

declares that federal agencies shal! likewise be subject to

state permit requirements and enforcement proceedings.

Alabama v. Seeber, supra, 502 F.2d at 1244; City of

15

Milwaukee v. Veterans Administration Center, 357 F. Supp.

192, 193 (E.D. Wis. 1973). This is not surprising in light

of the scheme of the Act, making state permit procedures

federal law and state officials in effect federal agents in

carrying out the Act. Getty Oil v. Ruckelshaus, supra.

The court below mistakenly pointed to § 304 as the only

consent by the federal government to be sued (App. 164):

‘Section 118 contains no waiver [of sovereign im-

munity] and that included in section 304 does not per-

mit suit to require owners and operators of federal

facilities to obtain permits from a state agency in order

to continue to operate. The two sections are part of

the same Act and must be read together. By failing to

include a separate waiver of immunity in section 118

Congress indicates that compliance with its provisions

may be compelled only to the extent permitted by sec-

tion 304.’’

Section 304 of the Act (42 U.S.C. § 1857h-2), provides for

citizen suits to enforce (A) an emission standard or limita-

tion under this chapter or (B) an order issued by the Ad-

ministrator or a State with respect to such standard or

limitation (4 304[a][1]). Federal facilities as well as state

and private facilities are subject to such suit. This section

meshes perfectly with § 118, as the Senate Report 91-1196,

points out:

‘*As recognized under section 118 of the bill, Federal

facilities generate considerable air pollution. Since

federal agencies have been notoriously laggard in abat-

ing pollution and in requesting appropriations to de-

velop control measures it is important to provide that

citizens ean seek, through the courts, to expedite the

government performance specifically directed under

section 118.” at p. 37.

teen ee

16

Citizen suits were not intended to be the first line of en-

forcement, but only to furnish reinforcement if govern-

ments refuse to act. Consequently, citizen suits are con-

fined to suits for violations of emissions limitations. The

Court said in Alabama v. Seeber, supra, 502 F.2d at 1248:

“The ‘Citizen Suits’ heading of section 304, the fact

that section 304(d) provides for awarding attorney

fees, and the legislative history of the section demon-

strates that the congressional focus in enacting that

provision was on suits by private parties.”

But state enforcement procedures are not so limited.

Violations of implementation plans are violations of state

law as well as federal law, Getty Oil v. Ruckelshaus, supra,

342 F. Supp. 1006, mod. on other gds. 467 F.2d 349, cert.

den. 409 U.S. 1125; In Re Grand Jury Proceedings, ——

F. Supp. —— 7 Envir. Rptr. Cases 1799 (W.D. Pa. 1975).

The states are expressly required to be able to enforce all of

their air quality regulations, including permit procedures,

§ 110(a)(2)(f)(i) (42 U.S.C. §1857¢-5[{a](2][f][i]). The

Act does not contemplate that states will be limited to the

use of § 304 as a means for enforcement. As the court

pointed out in Alabama v. Seeber, supra, 502 F.2d at 1248,

“Section 304 cannot be properly read as implying anything

about the ability of states to sue under § 118.”

Finally, it is clear that one purpose of the $118 was to

shift from a program of voluntary to a mandatory program

for federal facilities which were sources of air pollution.

Alabama v. Seeber, supra, 502 F.2d at 1245. The burden

placed upon federal instrumentalities is slight for compli-

ance with state permit procedures, as discussed above. See

Washington vy. Udall, 417 F.2d 1310 (9th Cir. 1969). In

any case, the President can exempt a federal facility from

state regulations if they are too burdensome, $118. Al-

though Congress clearly expressed its intent on this issue,

the Court below thwarted that intent by making it unen-

forceable. As pointed out in California v. E.P.A., supra,

17

— F.2d ——, 7 Envir. Rptr. Cases 1667, 1675 (9th Cir.

1975).

‘*Where a construction finding a waiver of exclusive

federal jurisdiction would support the stated congres-

sional purpose, then it seems to us that a purported

waiver should be construed, if not liberally, at least

sensibly.” See H. Hart and H. Wechsler, The Federal

Courts and the Federal System, p. 1351 (2d Ed. 1973).

B. The doctrine of sovereign immunity does not bar

suit against a federal agent to compel him to per-

form a non-discretionary, ministerial duty to obey

federal law.

This Court in Minnesota v. Hitchcock, 185 U.S. 373, 387,

long ago stated that the doctrine of sovereign immunity

‘*does not include those cases in which officers of the United

States are sued, in appropriate form, to compel them to

perform soiae ministerial duty imposed upon them by law

and which they wrongfully neglect or refuse to perform.”’

Since then many other decisions of this Court have held

that the doctrine does not apply where a Federal agent or

agency has violated non-discr: ionary duties under a fed-

eral statute. See Dugan v. Rank, 372 U.S. 609; Malone v.

Bowdoin, 369 U.S. 643; Larson v. Domestic and Foreign

Commerce Corp., 337 U.S. 682.

As we have described above, § 118 imposes a clear duty

upon federal agencies to comply with state ‘‘requirement

respecting control and abatement of air pollution,’’ includ-

ing permit requirements. Just as a private owner of

emissions sources, federal sources have no discretion as to

whether they must seek a permit if the Implementation

Plan so mandates, and the federal judiciary has ample

power to so direct.

The court below declared that the waiver of immunity

n § 304 to sue the Administrator is not applicable since

18

(App. 168) the court had

‘‘no power to review the decision of EPA not to com-

mence actions under section 113 since this was a deci-

sion on ‘agency action committed to agency discretion

by law.’ ”’

But this argument misses the point. The mb of this action

is to enforce the permit procedures against the TVA and

other Federal sources themselves, not to mandamus the

EPA. Section 118 gives no discretion to officers in control

of federal air pollution sources as to whether to comply

with state permit procedures. They “to the same extent

as any other person” are required to comply with valid

state regulations approved under 4110 of the Act, includ-

ing permit requirements. If they seek to avoid compliance

with the implementation plan of the state where they are

located, they must seek a variance, not defy it outright.

CONCLUSION

The order appealed from should be reversed and

the plaintiff’s motion for summary judgment should

be granted.

Dated: June 10, 1975, New York, New York.

Respectfully submitted,

Louis J. Lerxowrrz

Attorney General of the

State of New York

Attorney for Amicus Curiae

State of New York

Samvue.t A. HirsHowirz

First Assistant Attorney General

PHitip WEINBERG

Ricuarp G. BERGER

Assistant Attorneys General

of Counsel

Note: Walter F. Morris, Ul, legal assistant, also

participated in the preparation of this brief.