Memorandum — Kennecott Copper Corp. v. Train

Supreme Court, U. & |

| - FILED

MAR 1 1976

| MICHAEL RODAK. sR CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1029

KENNECOTT COPPER CORPORATION,

Petitioner,

Vv .

RUSSELL E. TRAIN, ADMINISTRATOR OF

THE ENVIRONMENTAL PROTECTION

AGENCY, ET AL.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

MEMORANDUM OF THE STATE OF NEVADA

IN SUPPORT OF PETITIONER FOR

WRIT OF CERTIORARI

ROBERT LIST

Attorney General

Supreme Court Building

Carson City, Nevada 89710

February 1976

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1029

KENNECOTT COPPER CORPORATION,

Petitioner,

Vv.

RUSSELL E. TRAIN, ADMINISTRATOR OF

THE ENVIRONMENTAL PROTECTION

AGENCY, ET AL.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

MEMORANDUM OF THE STATE OF NEVADA

IN SUPPORT OF PETITIONER FOR

WRIT OF CERTIORARI

The State of Nevada, a respondent herein, by virtue of Rule

21(4) of this Court's Rules, submits this memorandum in sup-

port of the petition of Kennecott Copper Corporation for a writ

of certiorari to the United States Court of Appeals for the Ninth

Circuit.

STATEMENT

Pursuant to the Clean Air Act, as amended, the State of

Nevada adopted an implementation plan for the control of sulfur

dioxide emissions from Kennecott Copper Corporation's smelter

at McGill, Nevada. The State’s plan required that the smelter be

fitted with controls that would capture 60% of the sulfur con-

tained in the ore that is fed into the smelter. The supplementary

control system, which was part of the control strategy for the

facility, would guard against short-term violations of the Nevada

ambient air quality standards (which in some cases are more

stringent than the national ambient air quality standards) during

periods of meteorological conditions adverse to the normal atmos-

pheric dispersion of sulfur dioxide. These provisions assure that

the national ambient air quality standards for sulfur dioxide would

be attained and maintained at all times.

Nevertheless, the Administrator of the Environmental Protec-

tion Agency (hereinafter E.P.A.) in spite of the restrictions

placed on the powers granted to him by the Clean Air Act, as

amended, disapproved the State’s plan and promulgated his own.

The only material difference between the Federal plan and the

Nevada plan was that the former required that the Petitioner,

Kennecott Copper Corporation, conduct a research program for

the purpose of developing and installing additional sulfur-capture

equipment. The State of Nevada had elected not to include such

a requirement in its plan because it was deemed unnecessary to

assure compliance with either the national ambient air quality

standards or the State standards.

Consequently, when Kennecott sought judicial review of the

Administrator's disapproval of the State plan and promulgation

of the Federal substitute, the State of Nevada intervened and

appeared in support of Kennecott’s position. The State contended

3

that the adoption of the Federal plan violated restrictions on the

Administrator's powers specified in the Clean Air Act and

infringed upon the State’s prerogatives under the Act, and such

action could have extremely serious economic consequences for

the people of the State. However, the Court of Appeals for the

Ninth Circuit affirmed the Administrator’s action. Kennecott

thereupon filed its petition for a writ of certiorari, seeking review

of the lower court’s decision by this Court and the State of

Nevada hereby supports that petition.

ARGUMENT

It is clear from the statutory language, the legislative history

and this Court’s previous interpretation of the Clean Air Act,

that the states have been assigned the responsibility of determin-

ing what means of achieving national (and local where more

stringent) ambient air quality standards are best suited to their

particular local situation. However, with the support of the deci-

sion below, the Administrator of the E.P.A. has now imposed

on the states a uniform Federal policy for the control of sulfur

dioxide—a policy that applies regardless of whether it is needed

for compliance with national standards—a policy that ignores the

vast differences in the conditions among the states—a policy whose

sole justification is the convenience and ease of enforcement by

the E.P.A., definitely not the needs of meeting the ambient air

quality standards. Since there is no way in which this action of

the Administrator can be reconciled with the terms and intent of

the law, a review of the lower court’s decision is urgently called

for.

The structure of the Clean Air Act recognizes that the inter-

state nature of free-flowing air warrants the imposition of national

ambient air quality standards. However, the widely varying cir-

cumstances throughout the Nation require the preservation of state

4

authority over the means of attaining those standards. This very

concept is clearly expressed in Section 107(a) of the Act, 42

U.S.C. 1857c-2(a):

Fach State shall have the primary responsibility for assur-

ing air quality within the entire geographic area comprising

such State which will specify the manner in which national

primary and secondary ambient air quality standards will be

achieved and maintained within each air quality control

region in such State.

Section 110(a) of the Act, 42 U.S.C. 1857c-5(a) further

states that the Administrator must approve the state’s plan as long

as it provides for the attainment of the national standards and

meets certain other specified conditions.

The Congressional purpose of allowing the states the freedom

to select the means of attaining the national standards was amply

confirmed in the legislative debates. Senator Muskie, the leading

proponent of the legislation, had this to say (116 Cong. Rec.

42386 [1970]):

May I say to the Senator that during the deliberations on

the bill I have been very much interested in preserving “‘local

option” features, so that State and local authorities would be

able to pursue options among a broad array, seeking a possi-

ble way of controlling or preventing air pollution that is most

responsive to the nature of their air pollution problem and

most responsive to their needs.

Similarly, after remarking that “the States must set up a plan

which must meet the Federal standards,” Congressman Staggers,

the House manager, observed, (116 Cong. Rec. 19205 [1970]):

In establishing the emission standards I am sure the States

will take into consideration the particular problems of air

quality control which exist in particular areas. This question

will be left up primarily to the States.

e/

5

See also, e.g., 116 Cong. Rec. 32902-03, 33114-15, 42520

(1970).

In the leading case interpreting the pertinent provisions of the

Clean Air Act, as amended, this Court repeatedly emphasized the

freedom which Congress intended the state should have in select-

ing the appropriate measures for meeting the national standards,

Train v. Natural Resources Defense Council, Inc., 421 U.S. 60

(1975). The Court stated (421 U.S. at 79) that:

so long as the ultimate effect of a State’s choice of emission

limitations is in compliance with the national standards for

ambient air, the State is at liberty to adopt whatever mix of

emission limitations it deems best suited to its particular situ-

ation.

The Court further asserted that “Congress * * * left to the

State considerable latitude in determining specifically how the

standards would be met.” (421 U.S. at 86-87). Again at page

79, this Court declared that: “[t}he Act gives the Agency no

authority to question the wisdom of a State's choice of emission

limitations if they are part of a plan which satifies the standards of

§ 110(a)(2) and the Agency may devise and promulgate a

specific plan of its own only if a State fails to submit an imple-

mentation plan which satisfies those standards. § | 10(c).” (421

U.S. at 79.)

In spite of these clear evidences of the legislative will to the

contrary, the E.P.A. has effectively preempted the State's author-

ity to determine the method of controlling sulfur dioxide emissions.

It has done so by imposing on the states a uniform Federal policy

of achieving a maximum reduction of such emissions nationwide,

irrespective of whether such a policy is necessary for the attain-

ment or maintenance of national ambient air quality standards in

any particular state. It has applied this policy in Nevada by

6

requiring that, as the price for its reliance on the State of Nevada's

control strategy, Kennecott Copper Corporation must undertake

a program for developing and installing further measures for the

reduction of sulfur emissions. The E..P.A. has done so without

regard to the fact that such a condition is neither required for the

achievement of air quality standards in Nevada nor permitted by

the authority granted to the Administrator in the Clean Air Act.

The Administrator has shown that he considers his “maximum

emission reduction” policy to have nationwide applicability. He

has already imposed it on a number of other states, see. e.g., 39

Fed. Reg. 29357, 29358 (1974) (Kentucky) ; 40 Fed. Reg.

43231, 43232 (1975) (Utah) ; 40 Fed. Reg. 53584, 53586-87

(1975) (Idaho). In addition, on January 6, 1976, the Admin-

istrator issued a “Legal Interpretation and Guideline . . .” set-

ting forth the manner in which the F..P.A. intends to implement

this policy wherever the agency deems its application is warranted,

see 41 Fed. Reg. 7450 (February 18, 1976). In this Guideline,

the I:.P.A. specifically identifies its Nevada regulation as an

example of the type of condition the agency will impose in the

future (id. at 7452 n.2).

The decision below, in approving the imposition of the F..P.A.’s

“maximum emision reduction” policy on the State of Nevada, is

completely contrary to the Clean Air Act's careful separation of

functions and powers between the State and Federal governments.

It deprives the states of their discretion to determine which con-

trol strategies are most responsive to their local problems and their

local needs. It reposes in the E.P.A. the power to overrule a

state's choice of emission limitations, even where the state’s plan

assures compliance with all national standards and all statutory

conditions. It thus legislates a reallocation of pollution-control

responsibilities that is contrary to the mandate of Congress con-

tained in the Clean Air Act, as amended.

7

By the same token, the decision below is in conflict with this

Court's decision in Train v. Natural Resources Defense Council,

Inc., 421 U.S. 60 (1975). The Court's opinion in that case was

a clear affirmation of the State's primary role in selecting the

means by which national air quality standards shall be met. It is

vital to the sound administration of the Act—both in Nevada and

elsewhere—that the conflict between the lower court’s decision

and this Court’s decision in Train be resolved as soon as possible.

For that reason, and for all of the reasons set forth in the petition

for a writ of certiorari, review of the lower court's decision by this

Court is plainly warranted.

CONCLUSION

The State of Nevada supports the petition for a writ of cer-

tiorari filed herein and urges this Court to review the decision of

the United States Court of Appeals for the Ninth Circuit.

Respectfully submitted,

ROBERT LIsT

Attorney General

The State of Nevada

February 1976