Reply Brief — Exxon Corp. v. Environmental Protection Agency

Supreme Court of the United States

OCTOBER TERM, 1975

NO. 75-324

EXXON CORPORATION, SHELL OIL

COMPANY, AMOCO OIL COMPANY

and ATLANTIC RICHFIELD COMANY,

Petitioners

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent

REPLY MEMORANDUM OF PETITIONERS

THOMAS M. PHILLIPS

EDWARD W. WARREN LARRY B. FELDCAMP

KIRKLAND, ELLIs & ROWE BAKER & BoTTS

1776 K Street, N.W. 3000 One Shell Plaza

Washington, D.C. 20006 Houston, Texas 77002

202-833-8400 713-229-1234

Attorneys for Petitioners

ee

Alphe Law Brief Co., One Main Plaza, No.1 Main St., Houston, Texas 77002

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

NO. 75-324

EXXON CORPORATION, SHELL OIL

COMPANY, AMOCO OIL COMPANY

and ATLANTIC RICHFIELD COMANY,

Petitioners

Vv.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent

REPLY MEMORANDUM OF PETITIONERS

On October 6, 1975, this Court granted certiorari in

Union Electric Co. v. Environmental Protection Agency,

No. 74-1542. As the Solicitor General correctly states, the

question presented in Union Electric depends upon the

EPA “Administrator’s obligation to consider economic

and technological factors in determining whether to ap-

prove a state plan.” (Resp. Mem. 7.) This Petition for

certiorari presents the identical question in the context of

the EPA Administrator’s obligation to consider such fac-

tors in promulgating his own plan following disapproval

of a state plan. Far from being “fundamentally different”

as asserted hv the Respondent (Resp. Mem. 8.). the

requisite considerations of the EPA Administrator in both

2

instances are fundamentally equivalent. See 42 U.S.C.

§ 1857c-5 and 40 C.F.R. Part 51.’

Respondent opposes certiorari in this case on the ground

that the court of appeals nominally considered economic

and technological factors by ruling legally irrelevant its

own finding that the regulations challenged here were

technologically and economically infeasible. (Resp. Mem.

5-6.)* Union Electric cannot be distinguished on this

basis since the court of appeals in Union Electric also

considered economic and technological factors in the same

hollow sense of ruling them legally irrelevant under the

Clean Air Act. (515 F.2d at 216-19.)°

Actually, if certiorari were denied in this case, incon-

sistent and anomalous results might follow depending

upon how this Court decides Union Electric. Thus, if the

Court were to rule in Union Electric that EPA must

disapprove a state plan which contains economically or

technologically infeasible regulations, the court of appeals

ruling in this case, if left standing, could permit the EPA

1. If anything, the reasons for granting certiorari here are even

more compelling than in Union Electric. For whatever the state’s

prerogative to disregard economic and technological factors in adopt-

ing an implementation plan “more stringent than . . . necessary to

attain the national ambient air quality standards’ (Resp. Mem. 7,

n.8), the EPA Administrator is mot authorized to impose economically

and technologically infeasible regulations on such a basis.

2. Respondent maintains that “EPA fully considered the feasi-

bility” of the regulation challenged here. (Resp. Mem. 6, 8.) But

actually, safety and economic feasibility factors were completely

ignored by the EPA and technology availability was discussed in

only two conclusionary statements which were completely discounted

by the court of appeals. (499 F.2d at 312.)

Neither can Union Electric be distinguished on the basis that other

legal remedies are purportedly available since precisely the same legal

remedies would be available to the Petitioner in Union Electric.

3 In fact, the Union Electric court cited the court of appeals

here as supporting its decision that economic and technological factors

need not be considered by the Administrator. (515 F.2d at 218.)

3

Administrator to impose the same or similar infeasible

regulations in his own implementation plan following

disapproval of the state plan.

Accordingly, this Petition for certiorari should be

granted so that the Court can provide a comprehensive

resolution of the role of economic and technological fac-

tors both in the EPA Administrator’s evaluation of state

plans and in promulgation of his own plan in the cir-

cumstances of disapproval. Alternatively, the Court may

wish to defer disposition of this Petition until after

Union Electric is decided.

Respectfully submitted,

Of Counsel:

Dillard W. Baker

Malcolm D. Hawk

Exxon Company, U.S.A. ps — . bein

ae teen opens Baker & BorTTs

’ 3000 One Shell Plaza

James A. Evans Houston, Texas 77002

Brynn F. Aurelius 713-229-1234

_— - Company EDWARD W. WARREN

ge og KIRKLAND, ELLIs & ROWE

Houston, Texas 77002 1776 K Street, N.W.

; Washington, D.C. 20006

John P. Traylor 202-833-8400

Amoco Oil Company A Petiti

P.O. Box 3092 ttorneys for Petitioners

Houston, Texas 77001

James Coffee

Legal Division

Atlantic Richfield Company

P. O. Box 2819

Dallas, Texas 75221

4

CERTIFICATE OF SERVICE

I hereby certify that three printed copies of the fore-

going Reply Memorandum of Petitioners have been

mailed this 10th day of November, 1975, postage pre-

paid to:

Solicitor General

Department of Justice

Washington, D.C. 20530

Edmund S. Clark, Esq.

Attorney at law

Department of Justice

Washington, D.C. 20530

William F. Pederson, Attorney

Air Quality, Noise & Radiation

Division (EG-333)

Office of the General Counsel

Environmental Protection Agency

401 M Street, S.W.

Washington, D.C. 20400