# Amicus Brief — Hancock v. Train

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0234%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1976
- **Citation:** 426 U.S. 167

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0234%3A09. Public record. Not legal advice.