Amicus Brief — Hancock v. Train

Sepreme Cori, G. 8.

II E D

DEC 29 100

In the Supreme Court of the Alu ie name

OCTOBER TERM, 1975

No. 74-220

COMMONWEALTH OF KENTUCKY, EX REL. ED W.

HANCOCK, ATTORNEY GENERAL, PETITIONER

*.

RUSSELL E. TRAIN, ADMINISTRATOR.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE S!XTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE

WILLIAM J. BAXLEY

Attorney General of the

State of Alabama

HENRY H. CADDELL

Assistant Attorney General

Chief, Environmental Protection

Division

FREDERICK S. MIDDLETON III

Assistant Attorney General

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 74-220

COMMONWEALTH OF KENTUCKY, EX REL. ED W.

HANCOCK, ATTORNEY GENERAL, PETITIONER

| v.

RUSSELL E. TRAIN, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE

NATURE OF INTEREST

The State of Alabama has a unique interest in the out-

come of this case which is not shared by other amici states,

namely that Alabama has been litigating for over three years

a separate action involving the same issues and the same

primary defendant involved in the present case. A petition

for a writ of certiorari in that action filed on behalf of TVA

and other federal defendants is presently pending before this

Court, and the Court’s ruling in the present case will for all

practical purposes be dispositive of the Alabama case.

Seeber v. Alabama, No. 74-851, Petition for Writ of Certi-

orari filed January 6, 1975.)

———

ARGUMENTS NOT ADEQUATELY PRESENTED

The State of Alabama recognizes that several amici briefs

have been filed to date in support of the position of the

Commonwealth of Kentucky. Neverthless, not one of these

briefs, including the original and reply briefs of the Com-

monwealth of Kentucky, have adequately represented the

interests of the various states in the outcome of this litigation.

The brief which Alabama submits herewith presents a

thorough and concise analysis of the issues before this Court,

and fills in many of the substantial] gaps in the briefs already

filed.

For example, Alabama’s brief presents the only compre-

hensive analysis of Section 304 of the Act, 42 U.S.C. 1857 h-2,

to date (pp. 25-30). A proper interpretation of this section

is crucial to the outcome of this case, since, as discussed in

the Alabama brief, respondents’ argument that Section 118

of the Clean Air Act subjects federal facilities to only state

emission standards and compliance schedules fails completely

if Section 304 is not interpreted as they contend.

Nor have the briefs filed in support of Kentucky’s po-

sition, or the Fifth Circuit“ opinion in Alabama v. Seeber.

502 F.2d 1238 (5th Cir. 19.2), sufficiently explained the

reasons for the Act’s disparate treatment of existing and new

federal pollution sources, as does the Alabama brief. (pp.

21-25). In fact, all of the briefs written to date have over-

looked the fact that Section 111 (d) of the Act, 42 U.S.C.

1857 c-6 (d), provides for state regulation of existing federal

sources through the use of permits, whereas Section 111

(c)(1) specifically exempts new federal sources from state

permit requirements.

The State of Alabama believes that it is essential for

this Court to read its discussion of the legislative history of

the Clean Air Amendments of 1970. (pp. 30-36). Although

this is the mainstay of respondents’ argument, no one has

offered an explanation as to why portions of the legislative

history appear to be inconsistent with the plain language of

the Act itself. . Recognizing this inconsistency, the Fifth Cir-

cuit and the Commonwealth of Kentucky have simply dis-

missed the legislative history as sketchy and ambiguous; but

the State of Alabama submits that the legislative history is

consistent with the express language of the Act. A thorough

and precise reading of the entire history of the Amendments

(which apparently has not been done by any participant in

this litigation to date) reveals that although respondents are

correct in stating that both the original House and Senate

versions of the Act would have subjected federal facilities

to state emission standards and compliance schedules only, the

Conference Committee specifically redrafted the Act to clarify

that existing federal facilities must comply with all state

pollution control requirements, including state permit require-

ments, carefully integrating specific changes into various

sections of the Act—the exact same sections which the courts

have consistently recognized us supporting Kentucky’s

position.

Finally, although the respondents’ contention that special

consideration should be given to the Environmental Pro-

tection Agency’s interpretation of Section 118 requires little

response, the State of Alabama believes that its discussion of

this issue is the only complete and logical such. discussion

snubmitted thus far.

Alabama recognizes that its brief is late. Attorneys for

the State of Alabama originally anticipated that the petition

for certiorari in the Seeber case would be granted together

with the granting of the petition in the present case. When

the Court granted the petition herein on March 17, 1975,

Alabama was not notified of this action, and only learned this

4

fact later upon inquiry to the Clerk of the Court concerning

the status of its own case. Alabama then moved this Court

to consolidate the Alabama case with the present case, but this

motion was denied on October 14, 1975.

The original Alabama action in the Sceber case was com-

menced over three years ago, almost one month before Ken-

tucky brought its own action. Through the years, the attor-

neys for the State of Alabama have acquired a thorough

understanding of the Clean Air Act and the issues involved in

the present case, and have demonstrated the ability to clearly

present these issues to the Fifth Circuit. The amicus brief

submitted on behalf of the State of Alabama represents a

diligent effort on behalf of its attorneys to present the same

issues to this Court in an even more thorough and concise

manner, and Alabama therefore prays that the Court accept

this brief, and avail itself of the thought and effort which

has gone into it.

Respectfully submitted,

WILLIAM J. BAXLEY

Attorney General of the

State of Alabama

HENRY H. CADDELL

Assistant Attorney General

Chief, Environmental Protection

Division

FREDERICK S. MIDDLETON III

Assistant Attorney General