Memorandum — Seeber v. Alabama

In the Supreme Court of the United States

Octroper TERM, 1974

No. 74-851

LYNN SEEBER, GENERAL MANAGER OF THE TENNESSEE

VALLEY AUTHORITY, ET AL., PETITIONERS

v.

STATE OF ALABAMA AND ALABAMA AIR POLLUTION 0

CONTROL Comission, Ex Ret. WILLIAM J BAXLey,

ATTORNEY GENERAL

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

WILLIAM J. BAXLEY

Attorney General of Alabama

HENRY H. CADDELL

Assistant Attorney General of Alabama

Chief, Environmental Protection

Division

MYRON H. THOMPSON

Special Assistant Attorney General

FREDERICK S. MIDDLETON, III

Assistant Attomey General

205 Administrative Building

Montgomery, Alabama 36104

ATTORNEYS FOR RESPONDENTS

In the Supreme Court of the Anited States

October Term, 1974

No. 74-851

LYNN SEEBER, GENERAL MANAGER OF THE TENNESSEE

VALLEY AUTHORITY, ET AL., PETITIONERS

v.

STATE OF ALABAMA AND ALABAMA AIR POLLUTION

CONTROL ComMMIssion, Ex Rev. WittiAM J. BAXLey,

ATTORNEY GENERAL

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

In this case petitioners, the Tennessee Valley Au-

thority, the United States Army and their various officers

and agencies (hereinafter referred to as "TVA" and

"the Army"), seek a reviewof the judgment of the United

States Court of Appeals for the Fifth Circuit. The Fifth

Circuit held that Section 118 of the Clean Air Act of 1970,

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

U.S.C. 1857f, requires chat TVA and the Army comply

with the Alabama Air Pollution Control Rules and Regu-

lations requiring a written permit for the operation of

facilities and equipment causing air polution located

within the State of Alabama.

The history of this case may be summarized as fol-

lows: On October 20, 1972, the State of Alabama and the

Alabama Air Pollution Control Commission (hereinafter

referred to as "Alabama" and "the Commission") filed

(1)

2

an action for declaratory and injunctive relief in the

United States District Court for the Northern District of

Alabama. The complaint alleged, first, that TVA and the

Army were required by Section 118 of the Clean Air Act

of 1970 to obtain written permits from the director of

the Alabama Air Pollution Control Commission, for the

operation of their air polluting facilities and equipment

within the state; and, second, that TVA and the Army

refused to obtain such permits for their facilities.

The case was submitted to the District Court on the

following motions: a motion for summary judgment filed

by Alabama and the Commission, a motion to dismiss

filed by the Army, and a motion to dismiss or in the

alternative for summary judgment filed by TVA. The

District Court in its judgment granted the motions filed

by TVA and the Army and denied the motion of Alabama

and the Commission. 1

Alabama and the Commission then appealed the case

on June 28, 1973, to the United States Court of Appeals

for the Fifth Circuit, which reversed the judgment of the

District Court and held, one judge dissenting, that fed-

eral facilities are subject to the Alabama permit re-

quirement!’ Alabama and the Commission firmly believe

that the decision of the Fifth Circuit is correct.

Nevertheless, Alabama and the Commission do not

oppose the granting of the petition for a writ of certiorari

because they consider the issue posed in this case to be

one of great national importance. For example, a sister

state, the Commonwealth of Kentucky, filed an action,

involving essentially the same issues as those in the

present case, against federal installations located in

Kentucky. On appeal of the Kentucky case, the United

In the District Court, Alabama and the Commission sued also

the Environmental Protection Agency and its officers. The District

Court dismissed the complaint as to them and Alabama and the

Commission did not appeal from that dismissal.

— *

‘

3

States Court of Appeals for the Sixth Circuit rendered

an opinion in direct conflict with that of the Fifth Cir-

cuit. The Sixth Circuit in Kentucky v. Ruckelshaus, 497

F. 2d 1172 (C. A. 6, 1974), stated that Section 118 of the

Clean Air Act of 1970, while requiring that federal fa-

cilities comply with substantive state air pollution re-

quirements, does not require that they comply with state

permit requirements. The Kentucky case is now up for

possible review in this Court on a petition for a writ of

certiorari in Kentucky v. Train, No. 74-220.

Furthermore, many other states have faced similar

recalcitrance to their permit requirements from federal

facilities located within their borders, and some have

also initiated court action against these facilities. 2

Therefore, because of the widespread state interest

in the issues posed in this case, respondents Alabama

and the Commission offer no objections to a review in

this Court of the opinion of the Fifth Circuit, along with

that of the Sixth Circuit and those of any other Circuits

which may come before this Court.

RESPECTFULLY SUBMITTED,

MYRON H. THOMPSON

Attorney General of Alabama Special Assistant Attorney General

HENRY H. CADDELL FREDERICK S. MIDDLETON, III

Assistant Attomey General of Alabama Assistant Attomey General

Chief, Environmental Protection 205 Administrative Building

Division Montgomery, Alabama 36104

WILLIAM J. BAXLEY

ATTORNEYS FOR RESPONDENTS

2 Amici curiae filing briefs in support of Alabama in the Fifth

Circuit included the States of California, Kentucky, Maine, New

York, Ohio and Texas. And see California v. Stastny, No. 72-2905,

C.A. 9, appeal docketed November 6, 1972; Illinois v. Department

of Defense, N. D. III., 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 Pollu-

tion Control Board v. ICI-Atlas, E. D. Tenn., Civ. No. 6581 (Volun-

teer Arsenal air case).