Opposition — EPA v. California Ex Rel. State Water Resources Control Bd.

Supreme Court, U. S.

FILED

In the Supreme Co

United States

Ocroser Term, 1974

No. 74-1435

THe ENVIRONMENTAL Protection AcgEnoy, et al.,

Petttioners,

v.

PEOPLE OF THE STATE oF CALIFORNIA ex rel, STaTEe

Water Resources Controt Boarp and Strate or

WasuHIncToy, et al.,

Respondents.

Joint Memorandum of Respondents California and

Washington in Response to Petition for Writ of

Certiorari to the United States Court of

Appeals for the Ninth Circuit

EveLLe J. YOUNGER Stave Gorton

Attorney General of California Attorney General of Washington

Cart BoronKay Cuares B. Rog, Jr.

Assistant Attorney General Senior Assistant Attorney

General

Ropverick WALSTON

Deputy Attorney General Wick DuFForp

Assistant Attorney General

Ricuarp C. Jacoss /

Deputy Attorney General — of f. — —

i ington

6000 State Building — ,

San Francisco, Attorneys for Washington

California 94102

Attorneys for California

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

SUBJECT INDEX

Page

Joint Memorandum of Respondents California and

TINS” sccccsiccsnsincsinicascotspnsiipeisssdeiniiniesttetilidanibiieenaialdlatinataditien 1

1. Similarities of the Air and Water Acts .............00....... 5

2. Dissimilarities of the Air and Water Acts ................ 7

EIT SDC CD ae ea EO OD ATCT EE IC POE 11

TABLE OF AUTHORITIES CITED

CasEs Pages

California v. Stastny, 382 F.Supp. 222 (C.D. Cal.),

appeal pending, No. 72-2905 (9th Cir.) -...............-..--.-- 4

Kentucky v. Ruckelhaus, 497 F.2d 1172 (6th Cir. 1974),

cert. granted sub. nom. Kentucky v. Train, No.

74-220 (March 17, 1975) ...............-...0...0.....-. 2, 3, 4, 5, 10, 11

State of California et al. v. Environmental Protection

Agency, 511 F.2d 963 (9th Cir. 1975) 2000022. 1

STATUTES

33 U.S.C.:

EES TCE FEED dot EN eR RTO OR 7

T_T EIRSESEEEC RINE ne seenrveonrR reruns COCO meer ONTO 1

ERE ese ee eee ener eran OTT 5

cede i)

SST "“schisciniciilsteceeccahalieieitadeeinieeenctancinidaunaedeiaeadaniatiniaaeaiaen i)

I a aldialaelesemeniasinaay 9

I san aescnabnnibeacadensieiodanimtlali 10

ESSERE PER eco vevaareamenenT neren ender on aor seT Bena 6, 7

42 U.S.C.:

I a alias 7

SARE aoa v aCe Deer ee eta en ENvEy eure RnEeES 8

| REEFS PURER Ee iverson rea enone oe eee ty BENE EAR cCT oa 6,7

REESE PE Roper art So SAID POON rrr OCT EE eae ean 5)

_ERERS RST Aar aCeae= ps eat ee roe Oy SAR Sar erase DeM 10

ESE EERE ERE ween oe NRIs anor aa 2

84 Stat. 107, formerly 33 U.S.C. § 1171 (a) 2... 9

MISCELLANEOUS

Exec. Order No. 11752, 3 C.F.R. 380 (1973) 0000. 6

H.R. Rep. No. 91-127, 91st Cong., 2d Sess. 19 (1970) ... 10

In the Supreme Court of the

United States

Octoser Term, 1974

No. 74-1435

THE ENVIRONMENTAL Protection AGENCY, et al.,

Petitioners,

v.

PEOPLE OF THE STATE OF CALIFORNIA eX rel, STATE

Water Kesources Controt Boarp and State oF

WASHINGTON, et al.,

Respondents.

Joint Memorandum of Respondents California and

Washington in Response to Petition for Writ of

Certiorari to the United States Court of

Appeals for the Ninth Circuit

JOINT MEMORANDUM OF RESPONDENTS

CALIFORNIA AND WASHINGTON

This case presents the question whether federal agencies

must obtain and comply with water quality control permits

issued by the states under the Federal Water Pollution Con-

trol Act, Amendments of 1972 (the “water act”). 33 U.S.C.

$§ 1251-1376. We believe that the decision of the Ninth Cir-

cuit below, in holding that the water act imposes such an

obligation on federal agencies, is correct. See State of

California et al. v. Environmental Protection Agency, 511

F.2d 963 (9th Cir, 1975). On this ground, the Court should

2

properly deny the petition for writ of certiorari filed by the

Environmental Protection Agency (“EPA”).

Ilowever, we recognize that several factors, unrelated to

the merits of the Ninth Circuit’s decision, militate in favor

of the Court granting the EPA’s petition. First, the issues

in this case are of national importance, since they affect

each state which receives federal authorization to develop

and enforce its own water quality control program under

the water act.’

Second, and more significantly, the Court has already de-

cided to review the decision of the Sixth Cireuit in Ken-

tucky v. Ruckelhaus, 497 F.2d 1172 (6th Cir. 1974), cert.

granted sub. nom. Kentucky v. Train, No, 74-220 (March

17, 1975). That case presents the related question whether

federal agencies must obtain and comply with air quality

control permits issued by the states under the Clean Air

Act (the “air act”). 42 U.S.C. §§$ 1857-18571. The two

cases are so interrelated that it is difficult for the Court to

decide one case without considering the issues raised in the

other case, vet sufficiently different that the Court cannot

definitively resolve the issues in one case by simply re-

solving the issues in the other case.

Tn its petition in the instant case, the EPA enumerated

certain similarities between the air and water acts, and

concluded that both acts “should be interpreted in a man-

ner consistent with each other.” Petition for a Writ of

Certiorari to the United States Court of Appeals for the

Ninth Cireuit [hereinafter “Petition”], 6. According to the

EPA, the acts are so substantially identical that whatever

decision the Court reaches in the Kentucky case should he

1. Twelve states have currently received such authorization.

California was the first state, and Washington the fourth, to receive

such authorization.

3

applied in the instant case. If this conclusion were correct,

the Court might be justified in withholding action on the

EPA’s petition until it has decided the Kentucky case, on

the assumption that its decision in that case will resolve

the issues in the instant case.

However, the EPA’s position overlooks, or ignores, the

fundamental differences between the air and water acts.

The water act contains a number of provisions not found

in the air act, which—as the Ninth Circuit noted in the

instant case (511 F.2d at 973)—provide a far stronger

footing for state authority under the water act than under

the air act. The dissimilarities between the acts may per-

suade the Court to construe the states’ authority under the

acts differently; in that event, the Court must distinguish

between the states’ authority under each act on the basis

of dissimilarities appearing in the acts. However, the simi-

larities between the acts may persuade the Court to con-

strue the states’ authority under the acts harmoniously,

as the EPA urges; in that event, the provisions found

solely in the water act may be helpful in explaining the

congressional intent behind the air act. Thus, the dissimi-

larities between the acts may be used as the basis for dis-

tinguishing between the states’ powers under each act, or

instead as the basis for construing the air act in light of

provisions appearing in the water act. In either event, the

Court cannot consider the acts separately, or definitively

resolve the issues in the instant case by resolving the issues

in the Kentucky case. Both acts must he analvzed simul-

taneously, in order to determine the extent to which thev

are in pari materia. Thus, if the Court does not expe-

ditiously deny the EPA’s petition, it should grant the

petition and consider the instant case at the same time that

it considers the Kentucky case.

4

The oversimplification of the EPA’s analysis of the in-

stant case is apparent from its reading of the Ninth Cir-

cuit’s decision. In support of its view that the air and

water acts must be construed harmoniously, the EPA

asserts that the Ninth Circuit’s decision, in upholding the

position of the states under the water act, “is contrary to

the decision of the Sixth Circuit” in the Kentucky case.

Petition, 5. However, closer analysis indicates that the

Ninth Circuit’s decision was based, in large part, on those

provisions of the water act not found in the air act. Ac-

cordingly, the Ninth Cireuit noted that its decision “would

not be inconsistent with either an affirmance or a reversal

of the district court’s decision in Stastny” (511 F.2d at

973); the Stastny decision arose under the air act, and

reaches a result identical to that of the Sixth Cireuit in the

Kentucky case.2 Thus, the Ninth Cireuit’s decision, al-

though helpful to the states’ position in the Kentucky case,

is not inconsistent with the Sixth Cireuit’s decision in that

ease, This strengthens our view that, if the Kentucky de-

cision is correct, the water and air acts are distinguishable

with respect to the extent of state authority, and the two

acts are thus not capable of harmonious construction.

We will now focus more closely on the similarities and

dissimilarities of the air and water acts, to show the need

for simultaneous judicial construction of both acts.

1. Similarities of the Air and Water Acts.

The primary issue in the Kentucky case involves the

meaning of section 118 of the air act, which provides that

2. The Stastny case, decided by a lower federal court, is now

pending before the Ninth Cireuit. See California v. Stastny, 382

F.Supp. 222 (C.D. Cal.), appeal pending, No. 72-2905 (9th Cir.).

5

federal agencies “shall comply with Federal, State, inter-

state, and local requirements respecting control and abate-

ment of air pollution to the same extent that any person is

subject to such requirements.” 42 U.S.C. § 1857f. (Em-

phasis added). The primary issue in the instant case in-

volves the meaning of section 313 of the water act, which

provides that federal agencies “shall comply with Federal,

State, interstate, and local requirements respecting control

and abatement of pollution to the same extent that any

person is subject to such requirements, including the pay-

ment of reasonable service charges.” 33 U.S.C. § 1323.

(Emphasis added.) Thus, both cases hinge on the meaning

of the word “requirements,” as it appears in sections 118

and 313.

In both cases, the Administrator of the EPA has in-

terpreted the word “requirements” as referring to state

substantive requirements, not state procedural require-

ments. Hence, although the Administrator concedes that

federal agencies must comply with substantive “standards”

and “limitations” imposed by the states, he denies that such

agencies must secure, or comply with, permits issued by

the states.

Many common arguments are raised by the Administra-

tor in both cases. For instance, the Administrator claims

that the applicability of state permit programs to federal

agencies “could result in the transfer to state governments

of significant control over federal facilities.” Petition 7.

The states respond in both cases that the acts contain

abundant safeguards against undue interference bv the

states with the control of federal facilities, and that the

limited power which Congress gave to the states to contro!

air and water pollution from federal facilities is 9 proper

6

exercise of the congressional power. Also, the Administra-

tor cites the legislative history of both acts, which contains

common references that federal agencies must comply with

state “standards” and “limitations”; the Administrator

argues that these references are synonymous with sub-

stantive requirements, and thus do not reveal a congres-

sional intent to require federal compliance with state

permit programs. The states in both cases respond that

these references set forth the goals of the air and water

acts, not the method by which these goals are to be at-

tained.*

The states also raise many common arguments in both

eases. For instance, provisions in each act distinguish

between, first, a “standard” or “limitation”, and second,

a “requirement respecting control and abatement” of pol-

lution, the phrase which appears in sections 313 and 118.

Compare 42 U.S.C. § 1857d-1, with 33 U.S.C. § 1370. This

distinction undermines the Administrator’s argument that

these terms are to be construed synonymously. The states

in both eases further contend that it is administratively

impossible for a state to develop substantive “requirements”

respecting the control and abatement of pollution unless

the requirements can be tailored to the exigencies of the

particular activity resulting in pollution, a process that

necessarily entails an administrative proceeding for the

purpose of considering the nature and effect of such

activity; thus, the states contend, a substantive require-

3. The Administrator also relies on a presidential executive

order issued after the passage of the air and water acts, which

requires federal agencies to comply with state “substantive stand-

ards and substantive limitations” under both acts, but not with

state “administrative procedures.” Exee. Order No. 11752, 3 C.F.R.

380 (1973). The states in both cases reject the executive order as a

proper interpretation of the air and water acts.

7

ment implicitly includes a procedural requirement as well.

Finally, both acts provide that the “primary” responsibility

for preventing pollution rests upon the states (compare 42

U.S.C. § 1857(a)(3), with 33 U.S.C. $1251(b)), and that

the states may impose more “stringent” standards than

those imposed by the Administrator (compare 42 U.S.C.

§ 1857d-1, with 33 U.S.C. § 1370); in both cases, the states

contend that these provisions vest them with responsibilities

which cannot be fulfilled unless the states are authorized,

through the permit process, to control pollution by federal

agencies.

2. Dissimilarities of the Air and Water Acts.

The dissimilarities of the air and water acts are more

striking than the similarities, however. Section 313, after

describing the obligation of federal agencies to comply with

state “requirements”, provides an example of such require-

ments by using the phrase “including the payment of rea-

sonable service charges.” This phrase is not found in

section 118. The EPA asserts that the phrase only authorizes

federal agencies to compensate states “for use of their

sewerage systems,” and does not appear in the air act

because the states do not provide comparable services for

air pollutants discharged from federal facilities. Petition,

7-8 n. 4. However, the Ninth Circuit disposed of this argu-

ment by noting that the phrase would be redundant under

this interpretation; federal agencies are already author-

ized, independently of the water act, to compensate states

for use of their sewage systems, if state law so requires.

511 F.2d at 969-70. Hence, the court concluded, the phrase

is intended to assure that federal agencies are authorized

to pay charges incident to the issuance of a permit by the

8

states, and thus indicates that federal agencies must seek

and comply with such permits, /bid.

The variation in the language of sections 313 and 118 is

critical in defining the meaning of each section. If the

Court upholds the EPA's view that the sections must be

read harmoniously, it must then interpret the meaning of

the “reasonable service charges” phrase in section 313 in

order to apply that meaning to section 118. However, the

Court might instead conclude that the absence of that

phrase in section 118 denotes a congressional intent that

the section should be construed differently from section

313, and that the former section—unlike the latter—coes

not require federal agencies to comply with state permit

programs. Under either approach, the Court must view both

sections together, in order to ascertain the proper scope

and limits of each.

Moreover, the air and water acts are fundamentally

different with respect to the programs which the states are

authorized to adopt, a fact which may critically bear on the

kinds of “requirements” applicable to federal agencies

under each act. The EPA asserts that both acts authorize

the states to submit a “plan” for the abatement of pollution,

and that the acts are “substantially identical” in this

respect. Petition, 5-6. However, this assertion is misleading,

for the acts are fundamentally different in this respect.

The air act authorizes the states to adopt an implementa-

tion “plan” to achieve the ambient air quality standards

set by the Administrator. 42 U.S.C, § 1857e-5. It is not

clear, however, whether the authority to adopt such a

“plan” also encompasses the authority to issue permits.

Thus, the act does not expressly authorize the states to

issue permits, but at best merely implies such authorization.

9

However, the water act expressly authorizes the states

to develop and enforce a “permit program” to achieve the

standards provided in the act. 33 U.S.C. § 1342(b). The

act specifically describes a “permit” as an example of a

“requirement” within the meaning of section 313. 7d. at

§ 1365(f)(6). When the Administrator approves a state

permit program, he must suspend the issuance of his own

permits. Jd. at § 1342(c). Nothing in the act indicates that

the Administrator, upon approval of a state program, may

retain authority to issue permits to federal agencies, Thus,

the act expressly contemplates the issuance « permits by

the states, to the exclusion of permits issued by the Adminis-

trator. Accordingly, the water act provides a stronger

basis than the air act for concluding that federal agencies

must comply with state permit programs.

If the Court agrees with the EPA’s view that the air and

water acts are to be read harmoniously, the lack of speci-

ficity in the air act concerning the states’ permit-issuing

authority may prove no obstacle to the position asserted by

the states under that act. However, the Court may instead

conclude that the lack of such specificity in the air act

reveals a congressional design that the air act—unlike the

water act—does not require federal compliance with state

permit programs. In the latter event, the Court must dis-

tinguish between the air and water acts on the basis of the

express powers delegated to the states under each act.

This strengthens our view that the acts must be read

together in defining the states’ authority under each act.

Additionally, the history of the air and water acts is

markedly different. Section 313 of the water act succeeded

section 21(a) of the 1970 amendments to the water act,

which required federal agencies to comply with “applicable

water quality standards”. 84 Stat. 107, formerly 33 U.S.C.

10

§1171(a). (Emphasis added). The legislative history of

the earlier section shows that Congress intended that it

include both state and federal standards. H.R.Rep., No. 91-

127, 91st Cong., 2d Sess. 19 (1970). The change from the

word “standards” in section 21(a) to the word “require-

ments” in section 313 undermines the Administrator’s argu-

ment that the words must now be read synonymously. No

such similar history, however, preceded the adoption of

the air act. Thus, again, the Court might use the history of

the water act as a guide to the meaning of the air act, or

instead as a basis for differentiating between the acts.

Finally, the air and water acts differ significantly with

respect to the method by which the Administrator’s ap-

proval of a state program may be judicially reviewed. The

air act authorizes “citizens suits” to be filed in a federal

district court against any person, including the United

States, who violates an “emission standard or limitation”,

or an order issued by the Administrator pursuant thereto.

42 U.S.C. § 1857h-2. In the Kentucky case, the Sixth Cireuit

relied on this provision in concluding that the doctrine of

sovereign immunity precludes an action against the United

States to require federal agencies to obtain permits from

the states. 497 F.2d at 1175-76. However, the water act

specifically authorizes an action to be filed in the appro-

priate Court of Appeals to review the Administrator’s de-

cision “in making any determination as to a State permit

program” under the act. 33 U.S.C. § 1369(b)(1). Hence,

if the Court should uphold the Aentucky decision on the

issue of sovereign immunity, it should distinguish between

the air and water acts on this issue. This factor further

sustains our view that the acts must be analyzed together

in order to determine the proper scope and limits of each

act.

11

CONCLUSION

The air and water acts must be read in part, but not

necessarily in whole, in pari materia. Judicial comparison

of both acts is necessary to determine whether the acts are

to be read harmoniously or disharmoniously, with respect

to the obligation of federal agencies to comply with state

permit programs. The many dissimilarities of the acts may

induce the Court to interpret the air act in accordance with

the more specific provisions found in the water act, or may

instead induce the Court to distinguish between the acts.

In the latter event, the Court must make proper distine-

tions on the basis of terminological, structural and histori-

eal differences in the acts. Otherwise, the Court might

foreclose a proper interpretation of the water act by its

decision in the Kentucky case, without seriously consider-

ing whether the acts’ differences justify differing construc-

tions of sections 118 and 313. For instance, in reviewing the

Kentucky case, the Court might uphold the federal position

that, in light of the legislative history of section 118, states

are without authority to issue permits to federal agencies

under that section; since the congressional history of sec-

tion 313 is similar to that of section 118, the Court’s de-

cision would effectively resolve the issues in the instant

ease, without proper weight having been given to the many

differences in the air and water acts which should lead to a

different result.

Accordingly, we respectfully suggest that, if the Court

does not speedily deny the EF PA’s petition, the instant case

and the Kentucky case should be heard and considered at

the same time, but not otherwise consolidated. In that

event, the Court should grant the EPA’s petition for a writ

of certiorari, and set the two cases for hearing on the same

date, but at different times.

Dated: June 3, 1975

Eve.Le J. YOUNGER

Attorney General of California

Cart BoronKay

Assistant Attorney General

Roperick WALSTON

Deputy Attorney General

Ricuarp C. Jacoss

Deputy Attorney General

6000 State Building

San Francisco,

California 94102

Attorneys for California

SLaDE GorTON

Attorney General of Washington

Cuarues B. Rog, Jr.

Senior Assistant Attorney

General

Wick Dvurrorp

Assistant Attorney General

Temple of Justice

Olympia, Washington 98504

Attorneys for

Washington