# Memorandum — Seeber v. Alabama > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0262%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Memorandum - **Published:** January 1, 1975 - **Citation:** 423 U.S. 887 ## Text 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0262%3A2. Public record. Not legal advice.