# Petition — City of Highland Park v. Train > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1231%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 424 U.S. 927 ## Text Su; Court, U. & bed j OCT 29 1975 i i IN THE 1 MICHAE be 0-22 — — -— -- upreme Cont ofthe hited states OCTOBER TERM, 1975 No %75-610 1 THE CITY OF HIGHLAND PARK, ILLINOIS, EtTc., ET AL., Petitioners, vs. RUSSELL E. TRAIN, ETC., ET AL., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. JOsEPH V. KARAGANIS, SANFORD R. GAIL, KARAGANIS & GAIL LTD., 180 North LaSalle Street, Chicago, Illinois 60601, Counsel for Petitioners. Of Counsel: THOMAS H. COMPERE, BERLE L. SCHWARTZ, 1707 St. Johns Avenue, Highland Park, Illinois 60035. October, 1975. Gunthorp-Warren Printing Company, Chicago e Financial 6-6565 PAGE PPC COTCTETT CTT CTT TTTTE TT TTT TT 1 PN Riis eh 6 64.00 oe Cenels po wnmeamn ed eos cees 2 IIR 0. oc ct cinngn o4é-0 Gabenettcuct 2 I ET cc c.0e cposmbtbd cub at cnet hu checkes 3 Sea GE GD i iias's o Se wee's co cnciade covcecs 3 Reasons for Granting the Writ .............0..e0008> 10 1. The Decision Below Conflicts with Decisions of the Supreme Court as to the Exclusivity of a Statutory Jurisdictional Grant and the Preclusion of Traditional Bases of Subject Matter Jurisdiction............. 10 2. The Decision Below Conflicts with the Decisions of Other Courts of Appeals as to the Exclusivity of 42 U. S.C. See wee Oe eee COs Subject Matter Jurisdiction. ............00+0006: 14 3. The Decision Below Conflicts with the Decision of Other Courts of Appeals as to the Appropriate Forum —District Court or Court of Appeals—to Seek Review of the Administrators Failure to Include Statutorily Mandated Components in Promulgation GE TIER: cc cece ws ccccccee ce oceccescces 15 4+ thn Wickens thchowr Cones Sasttanen Problems Regarding the Subject Matter Jurisdiction of the Federal Courts and the Administration of Judicial Review Under the Clean Air Act.............. 16 ii CITATIONS. | Cases. Abbott Laboratories v. Gardner, 387 U. S. 136 (1967) ced ccenecencenesdaasensetebeseasass 8, 12, 13, 14, 17 Anaconda v. Ruckelshaus, 482 F. 2d 130 (10th Cir. ) Pre rr rrr OPrrrrrrrTerriy Tr t. le seececees 4, 16 Bell v. Hood, 327 U. S. 678 (1946) ...... wie ee dle de 12 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 409 F. 2d 718 (2nd Cir. 1969), revd. on merits 403 U. S. 388 (1971) ...........-.. 12 City of Highland Park v. Train, 374 F. Supp. 758 (N. D. BR, BOTS) occ ccccccccccccccesecccesacs lo sees 2,7,9 City of Highland Park v. Train, 519 F. 2d 681 (7th Cir. ADTS) wcccccccevececceccwesesvecveceressens 1,4,9 Fri v. Sierra Club, 412 U. S. 541 (1973) ..........4.- 4,7 Montana-Dakota Co. v. Pub. Serv. Co., 341 U. S. 246 CREED ccccédcccckoebsbddeecespuceesceuesaye 12 Natural Resources Defense Council v. Environmental Pro- tection Agency, 481 F. 2d 116 (10th Cir. 1973) ...... 10 Natural Resources Defense Council v. Train, 510 F. 2d 692 _ CP, & Ge. Be vee ceccccdscoesass 8, 9, 11, 12, 14, 17 Natural Resources Defense Council v. Environmental Pro- tection Agency, 512 F. 2d 1351 (D. C. Cir. 1975). .4, 5, 16 Natural Resources Defense Council v. Train, 519 F. 2d 287 CD. CG. Gat. 1987S) cccccccccccccces 4, 5, 8, 9, 14, 15 Oljato Chapter of Navajo Tribe v. Train, 515 F. 2d 654 (D. C. Cie. 1975) ..ccccccccccccccvccccscccces 8,14 Peoples v. United States Dep’t. of Agriculture, 427 F. 2d 561 (D. C. Cir. 1970) 2... ccc cceccccccccccccces 12 © ee eres eee - . i ' Pickus v. United States Board of Parole, 507 F. 2d 1107 Ge Ss Ga Be: So oR ehh ck knee ce cb cc cwoece i2 Powell v. McCormack, 395 U. S. 486 (1969) .......... 12 Rusk vy. Cort, 369 U. S. 367 (1962) ...... ++ -8, 13, 14,17 St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U. S. 283 (1938) ...... bd Oi EP Rs ch Ov et dsb 006 hee, 12 Sierra Club v. Train, ...__. F. Supp. we C.C.C. A. Pe: FOE oon bwestevowstwissavccesincts we («SG Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D. D. C. 1972), affd. per curiam, 4 E. R. C. 1815 (D. C. Cir. 1972), affd. by an equally divided Court sub nom. Fri v. Sierra Club, 412 U. S. 541 (1973) ............ 4,7, 15 The Fair v. Kohler Die Company, 228 U. S. 22 (1913) .. 12 Wheeldin v. Wheeler, 373 U. S. 647 (1963) .......... 12 Statutes. 2 Ue Te Ge © Pe OE coc cncceeccnces 2, 3, 6, 8, 10, 12, 14 Pb es OE 6d dibs 0008 6000 ese ceennedeasion 9,15 Be a Oy tie SUED 9-56.06 ns ka ces Vedeeoabeteens 2 - , RY =r +2, 3, 5, 6, 8, 10, 12, 14 Be as Oe Gis OD 6 ec owredes docbuee bin 2, 3, 5, 6, 8, 10, 14 33 GU. & Gs BEBE scicc civee. vetévorwesewboecen 5,11, 14 SO Os is EE occas caveecesec wisstesenreeéeqets 5 Ge ie. Oe ee ee 0 c hi ceexnbdnbhatdesséiveenes 2,3 42 U.S. C. § 1857h-2....2, 3, 5, 6, 8, 9, 10,11, 12, 13, 14, 15 GG, Be es vc ok vcnbbvecctersoséocses 2, 3, 7, 16 Regulations. 39 Fed. Reg. 7270 (February 25, 1974) ............. 6 39 Fed. Reg. 42510 (December 5, 1974) ........... 4,7, 15 Supreme Court of the GAnited States OcToBerR TERM, 1975 No. ..... THE CITY OF HIGHLAND PARK ILLINOIS, eEtc., BT AL., Petitioners, vs. RUSSELL E. TRAIN, ETc., ET AL., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. The Petitioners, The City of Highland Park, Illinois, The Village of Deerfield, Illinois, Tri-Suburban Defense Council, Franklin Cole, Joan Cole, Lesley Kodner, Denise Kodner, James Frankel, Florence Frankel, Andrew Taft, Katherine Taft, Thomas Nathan, Louise Nathan, Ralph L. Brill, Judith Brill, Ludoslaw Tybur, Kay Tybur, respectfully pray that a Writ of Certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Seventh Circuit entered in this proceed- ing on July 24, 1975. The modified opinion of the Court of Appeals for the Seventh Circuit entered July 24, 1975 (A10) is reported at 519 F. 2d 681 (7th Cir. 1975). The court’s original opinion, entered 2 June 10, 1975 (A45), is unreported. The opinion of the United States District Court for the Northern District of Illinois, Eastern Division (A71), dismissing the action is reported at 374 F. Supp. 758 (N. D. Ill. 1974). The judgment of the Court of Appeals for the Seventh Circuit was entered on June 10, 1975 (A43). A timely petition for re- hearing and suggestion for en banc hearing was denied and the Court modified its previous opinion on July 24, 1975 (A39). This petition for certiorari was filed within 90 days of that date. This Court's jurisdiction is invoked under 28 U. S. C. § 1254(1). QUESTIONS PRESENTED. 1. Whether § 304 of the Clean Air Act, 42 U. S. C. § 1857h-2, is the exclusive basis of district court subject matter jurisdiction to remedy the Environmental Protection Agency Administrator's failure to perform a statutorily mandated duty under the Clean Air Act, 42 U. S. C. § 1857 et seq.? 2. Whether the 60 day notice prerequisite for actions under § 304 is a bar to subject matter jurisdiction in actions brought under the general federal question statute (28 U. S. C. § 1331); the statute creating subject matter jurisdiction to an officer of the United States to perform his duty (28 U. S. C. § 1361); and the Administrative Procedure Act (5 U. S. C. §§ 701-706) where § 304(e) specifically preserves preexisting statutory and common law causes of action? 3. Whether the Administrator’s failure to include statutorily mandated elements in his promulgation of a regulation under the Clean Air Act renders such failure reviewable in the district court (under either 42 U. S. C. § 1857h-2, 28 U. S.C. § 1331, 28 U. S. C. § 1361, 5 U. S. C. §§ 701-706) or in the Court of Appeals (under 42 U. S. C. § 1857h-5(b)(1)) or both? STATUTES INVOLVED. This case involves the jurisdictional grants for judicial review under the Clean Air Act of 1970—Section 304, 42 U. S. C. § 1857h-2 (A4) and Section 307, 42 U. S. C. § 1857h-5 (A7) —and subject matter jurisdiction under 28 U. S. C. § 1331 (A4), 28 U. S. C. § 1361 (A4) and the provisions of the Administrative Procedure Act, 5 U. S. C. § 701 ef seg. (A1). STATEMENT OF THE CASE. The controversy presented to this Court involves the “juris- dictional badminton” played by the United States Environmental Protection Agency, the Circuit Courts of Appeal and the dis- ‘trict courts in applying the jurisdictional grants created by the Clean Air Act, 42 U. S. C. § 1857 ef seq. and the preexisting jurisdictional grants under 28 U. S. C. § 1331, 28 U. S. C. § 1361 and 5 U. S. C. §701 ef seg. Instead of administering a system for judicial review designed to give swift and clear adjudi- cation of substantive rights and obligations under the statute, the lower courts have become bogged down in a series of juris- dictional inconsistencies. These inconsistencies have hamstrung the Congressional desire to achieve air quality on an expeditious schedule and have left persons injured by EPA actions or failures to act asking the jurisdictional analog to the Abbott and Costello refrain—“Who’s on first?” Though there are a number of variations, the basic problem stems from promulgation of regulations by the Administrator in which the Administrator fails to include statutorily mandated components. Under § 307 of the Clean Air Act, 42 U. S. C. § 1857h-5(b) (1), judicial review of promulgated regulations is directly in the United States Court of Appeals for the “appro- priate circuit”. Under § 304 of the Clean Air Act, 42 U. S. C. § 1857h-2(a), the Administrator’s failure to perform a non- discretionary duty can be reviewed by an action against the Administrator in the district court. 4 Since a promulgation of regulations which fails to include statutorily mandated components necessarily involves both pro- mulgation and failure to act, the courts have demonstrated a schizophrenic reaction to attempts to seek judicial review either in the district court or the court of appeals. Indeed, the Circuit Court of Appeals for the District of Columbia has suggested that the Administrator’s failure to include statutorily required com- ponents in the regulations he promulgates may be reviewable either in the district court (§ 304) or the court of appeals (§ 307). See Natural Resources Defense Council v. Environ- mental Protection Agency, 512 F. 2d 1351, 1356-1357 (D. C. Cir. 1975). At least one other circuit has held that once a regulation is promulgated, all challenges, including failures to include certain components, should be heard by the appellate court. Anaconda v. Ruckelshaus, 482 F. 2d 1301, 1304 (10th Cir. 1973). The Seventh Circuit in the decision below held that despite the Administrator’s promulgation of what purported to be regulations governing significant deterioration (39 Fed. Reg. 42510, December 5, 1974) and despite the Administrator’s claim that the sole method of judicial review for deficiencies in those regulations was in the court of appeals, the exclusive avenue of review was in the district court. City of Highland Park v. Train, 519 F. 2d 681, 697 (7th Cir. 1975)* (A37). This confusion over jurisdiction between district court and appellate court has been compounded by the inconsistent pesi- tions taken by the Administrator in jurisdictional disputes in Clean Air Act cases and almost identical jurisdictional disputes 1. Ironically, the district judge who first ordered the Admin- istrator to promulgate significant deterioration regulations has held that the promulgation of even partial significant deterioration regula- tions vests jurisdiction exclusively in the court of appeals. Order of Judge John H. Pratt, November 15, 1974, in Sierra Club v. Train, omens F. Supp. ........ (D. D. C. C. ‘A. No. 1031-72). It was Judge Pratt who originally entered the order requiring promulgation of significant deterioration regulations. Sierra Club v. Ruckelshaus, 344 F Supp. 253 (D. D. C. 1972); aff'd. per curiam ........ 2? 4 E.R. C. 1815 (D. C. Cir. 1972), affd. by an equally divided Court sub nom. in Fri v. Sierra Club, 412 U. S. 541 (1973). 5 under the similar judicial review provisions of the Federal Water Pollution Control Act Amendments of 1972.” In some cases the Administrator has argued that omissions or failures to include statutorily required components in regulations should be brought in the district court® and in other cases the Administrator has argued that such omissions must be challenged exclusively in the appellate court.* This “jurisdictional badminton’”® game reached its zenith in the instant case. Petitioners brought suit in the district court against the Administrator and a group of shopping center developers seekings a mandatory injunction requiring the Ad- ministrator to promulgate “complex source” regulations and significant deterioration regulations relating to complex sources. “Complex” or “indirect source” are terms used to describe facili- ties which don’t emit pollutants themselves but which attract significant vehicle congestion and thus cause significant vehicular pollution. The Administrator has repeatedly stated that such sources are significant health hazards and that preconstruction permit review is the only rational method of changing traffic de- sign or location to avoid traffic congestion. Petitioners sought a preliminary injunction against the developers asking that con- struction be halted until the regulations had been applied to the proposed center. Promulgation of the regulations was long overdue under the statutory timetable mandated by the Clean Air Act. Jurisdiction in the district court was predicated on 28 U. S. C. § 1331, 28 U. S. C. § 1361, § 304 of the Clean Air Act, and 2. § 505 (district court, 33 U. S. C. § 1365) and § 509 (appel- late court 33 U. S. C. § 1369). > N. R. D.C. v. E. P. A., 512 F. 2d 1351, 1357 (D. C. Cir. 1975). 4. Brief of Federal appellees in the Seventh Circuit in the instant case, City of Highland Park v. Train, at p. 12: See also Natural Re- sources Defense Council v. Train, 519 F. 2d 287, 290 (D. C. Cir. 1975). 5. See the dissenting opinion of Judge Wright in N. R. D. C. v. E. P. A., 512 F. 2d 1351 at 1361 (D. C. Cir. 1975). 6 the Administrative Procedure Act, § U. S. C. § 701 ef seq. Since construction of the shopping center was imminent and be- cause preliminary injunctive relief was sought under Rule 65, Federal Kules of Civil Procedure, petitioners did not file a 60 day notice as required by § 304(b). Instead, they relied on the traditional bases for district court jurisdiction alleged in their complaint. While the district court litigation was pending, the Adminis- trator promulgated what purported to be “indirect source” reg- ulations. 39 Fed. Reg. 7270 (February 25, 1974}. However, he expressly excluded from the scope of his indirect source regulations the significant deterioration aspects of indirect source control. “Because several basic approaches are still being considered, an attempt to reflect non-deterioration considerations in the indirect source regulations would be premature. How- ever it is EPA’s intent that indirect source and significant deterioration regulations will be consistent with one another. Specific relationships will be addressed in regulation to be promulgated on significant deterioration.” 39 Fed. Reg. at 7271 (emphasis added). Despite a claim by the Administrator that § 304 was the exclusive basis of district court jurisdiction and that the action was therefore barred by failure to give 60 days notice, the dis- trict court held that the 60 day notice provision did not bar jurisdiction under 28 U. S. C. §§ 1331 and 1361. However, the district court ruled for the Administrator on the merits, con- cluding that the Administrator had complied with his statutory duty by promulgating the February 25, 1974 indirect source regulations. As to the failure of the Administrator to include significant deterioration aspects of indirect source regulations, the district court concluded that the significant deterioration issue was dis- 7 cretionary with the Administrator.* He therefore dismissed the complaint for failure to state a claim. Petitioners appealed and during the pendency of the appeal the Administrator promulgated what purported to be significant deterioration regulations. 39 Fed. Reg. 42510 (December 5, 1974). However, contrary to his earlier promise to include in- direct source controls in his significant deterioration regulations, no mention was made concerning indirect sources. Yet the Administrator’s brief in the Seventh Circuit below argued that the December 5, 1974 regulations had complied fully with the court’s order in Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D. D. C. 1972), aff'd. per curiam, 4 E. R. C. 1815 (D. C. Cir. 1972); aff'd. by an equally divided Court sub nom. Fri v. Sierra Club, 412 U. S. 541 (1973). The Administrator con- tended that any dissatisfaction with those regulations should be reviewed exclusively in the court of appeals under § 307. Petitioners attempted to preserve the merits of their claim from these jurisdictional anomalies by maintaining both the district court appeal’ and by filing a timely petition for review directly in the court of appeals under § 307.* On petitioners’ motion, the two proceedings were consolidated. In direct contrast to the district court below the Seventh Circuit held that the Administrator had not complied with the mandate of the Sierra Ciub decision but that the petitioners 6. “Moreover, it has not been conclusively determined that the Clean Air Act requires the prevention of significant deterioration as a decision by an equally divided Supreme Court is not an authorita- tive determination for other cases.” 374 F. Supp. 758 at 774 (A97), referring to this Court’s action in Fri v. Sierra Club, 412 U. S. 541 (1973). 7. In the Seventh Circuit, the district court appeal was designated No. 74-1271. 8 In the Seventh Circuit, the petition for review of the Adminis- trator’s failure to include significant deterioration controls for carbon monoxide, hydrocarbons, oxides of nitrogen and photochemical oxi- ——— vehicular pollutants associated with indirect sources—in on December 5, 1974, 39 Fed. Reg. 42510, was promulgation yt ane No. 75-1006. had failed to meet the jurisdictional prerequisites to raise the substantive issue. The court of appeals held that the Adminis- trator’s failure to include statutorily mandated components in the promulgated regulations should be reviewed exclusively in the district court. Moreover, the Seventh Circuit held that the exclusive basis for district court subject matter jurisdiction was § 304(a)(2). It held that district court jurisdictional bases which would have existed apart from § 304—28 U.S.C. § 1331, 28 U. S. C. § 1361 and the Administrative Procedure Act, 5 U. S. C. § 701 ef seq.—had been barred by the enactment of § 304. The Seventh Circuit’s decision that § 304 was the ex- clusive basis of district court subject matter jurisdiction was made despite the express savings provision of § 304(e), 42 U. S. C. § 1857h-2(e) which states: “(e) Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emis- sion standard or limitation or to seek any other relief (in- cluding relief against the Administrator of a State agency).” Since the Seventh Circuit held that § 304 is the exclusive basis of district court jurisdiction and since petitioners had not given the sixty day notice required by § 304(b)(1)(A) as a prerequisite to an action under § 304, the court of appeals held that there was no subject matter jurisdiction in the district court. Moreover, despite a petition for rehearing which cited both the directly contrary opinion of the District of Columbia Circuit in Natural Resources Defense Council v. Train, 510 F. 2d 692, 698-703 (D. C. Cir. 1975)* and the decision of this Court in Abbott Laboratories v. Gardner, 387 U. S. 136 (1967) and Rusk v. Cort, 369 U. S. 367 (1962), the Seventh Circuit de- clined to change its decision. It simply filed a modified opinion acknowledging the conflict between the Seventh Circuit and the District of Columbia Circuit. 9. See also Natural Resources Defense Council v. Train, 519 F. 2d 287, 291 (D.C. Cir. 1975); Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654, 664 n. 16 (D. C. Cir. 1975). 9 The Seventh Circuit's decision on the exclusivity of § 304 as a basis of district court jurisdiction raises a three-pronged dilemma in cases where the Administrator fails to include certain components in promulgating regulations: 1. Requirement of a 60 day notice prior to commencing an action effectively precludes a person suffering injury as a result of the Administrator’s failure to act from seeking temporary or preliminary injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. As explained in N. R. D. C. v. Train, 510 F. 2d 692, 700 (D. C. Cir. 1975) the purpose of § 304 was to expand jurisdiction to those lacking the requisite injury for standing and jurisdictional amount. It was not designed to bar emergency relief for those actually suffering injury who wow!d have had the requisite standing to seek relief under other jur- isdictional grants. 2. Exclusivity of § 304 jurisdiction would render unre- viewable those failures to act which are not a violation of a clear duty but are an abuse of discretion normally reviewable under 5 U. S. C. § 706(2)(A). Cf. N. R. D. C. v. Train, 519 F. 2d 287, 291 (D. C. Cir. 1975). Both the district court and the court of appeals below questioned whether the duty to promul- gate significant deterioration regulations was non-discretionary or actually within the discretion of the Administrator.” If the duty to promulgate is discretionary then § 304 jurisdiction does not exist and review of the Administrator’s failure to promulgate such regulations is in a “jurisdictional limbo” N. R. D. C. v. Train, 519 F. 2d 287 at 291. 3. Congress clearly intended § 304 to expand the jurisdic- tion of district courts to persons who would otherwise not have the requisite standing to sue. Congress wanted uninjured citizens to act as “private attorneys general” to aid in the enforcement of the Clean Air Act." As a limitation on this new expansion 10. City of Highland Park vy. Train, 519 F. 2d at 692 (A27); district court opinion 374 F. Supp. at 774 (A97). 11. Compare the lack of a standing requirement under § 304 with the required standing to seek appellate review under § 307, 10 of jurisdiction to non-injured private attorneys general, Congress imposed a 60 day notice provision. However, Congress expressly stated that § 304 was not intended to affect or restrict the jur- isdiction and remedies which existed under other statutes and at common law. But the Court of Appeal’s decision below destroys those traditional statutory bases of judicial relief for persons suffering actual injury. REASONS FOR GRANTING THE WRIT. 1. The Decision Below Conflicts with Decisions of the Supreme Court as to the Exclusivity of a Statutory Jurisdictional Grant and the Preclusion of Traditional Bases of Subject Matter Jurisdiction. The district court action below was brought under four sep- arate bases of subject matter jurisdiction: a. 28 U. S. C. § 1331—general federal questions b. 28 U.S. C. § 1361—action to compel a federal officer to perform a duty owed to plaintiff c. 5 U. S. C. § 701 et seg.—the Administrative Pro- cedure Act d. 42 U. S. C. § 1857h-2—