Petition — Environmental Protection Agency v. Brown

Supreme Court brief1977

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Suorome Court, U. &

fFiLED

DEC 24 1975

MICHAEL b g tA

In the Supreme Court af the United Staten

OCTOBER TERM, 1975

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

EDMUND G. BROWN, JR., GOVERNOR OF THE

STATE OF CALIFORNIA, ET AL.

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

STATE OF ARIZONA, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

ROBERT H. BORK,

Solicitor General,

PETER R. TAFT,

Assistant Attorney General,

HARRIET S. SHAPIRO,

Assistant to the Solicitor General,

EDMUND B. CLARK,

MICHAEL D. GRAVES,

NEIL T. PROTO,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

ROBERT V. ZENER,

General Counsel,

Environmental Protection Agency,

Washington, D.C. 205380.

Page

I ID in s.nicnittnnsitensiaieliistiigaiinaiateaniasiaabiiiadiile 1

EIEIO sccisccncittsescissustppaciabisiiiehiandantieadiicnoas sauilindua 2

A aS nee 2

Constitutional and statutory provisions and

regulations involved 3

SI cecal bataneeatacs ddinindiendipaidlamenadiaeei 3

A. The statutory scheme >

B. The California and Arizona Trans-

portation Control Plans —...----.____. 8

C. The decisions below 11

Reasons for granting the writ 15

Conclusion 19

CITATIONS

Cases:

District of Columbia v. Train, et al., 521

ff ee

Maryland v. Environmental Protection

Agency, C.A. 4, No. 74-1007, decided

September 19, 1975 13, 14, 15, 16, 17

Natural Resources Defense Council v.

Environmental Protection Agency, 475

F.2d 968 __........ eee saahaeeeaae Eames 9, 10-11

Pennsylvania v. Environmental Protec-

tion Agency, 500 F.2d 246. t(Cttsé«i2 3 16

Train Vv. Natural Resources Defense

6 6 ee ene 15

II It

Constitution, statutes and regulations: Page Constitution, statutes and

United States Constitution: regulations—Continued Page

Article I, Section 8 A7a 40 C.F.R. 51.1(r) onsen eonncocenecnenenes 11

I I saccisiciniciniirinmennenanmniies 67a-68a

Article VI 47a ri

Tenth Amendment 47a 49 C.F.R. 52.137-52.139 o Henaee RacaossensSeeSesenes

40 C.F.R. 52.242 19, 68a-T1a

Clean Air Act, 81 Stat. 485, as amended,

42 U.S.C. 1857 et seq.: Miscellaneous:

Sec. 101 _...__. 48a-49a Committee Print, Serial No. 93-18, A

Sec. 101 (a) (2) 3-4, 48a Legislative History of the Clean Air

See. 101(a) (3) _ ee 4, 48a Amendments of 1970, 93d Cong., 2d

Sec. 101(b) (1) a 8, 48a-49a Sess. (1974) 6

Sec. 107a - ce eee ee. By 498 Department of Health, "Education. and

Sec. 109 6, Ga-Bla Welfare, Nos. AP-63 and AP-64, “Air

Sec. 109(b) (1) Ls Quality Criteria for Photochemical Oxi-

Sec. 109(b) (2) —. _4, 50a-5la dants” and “Air Quality Criteria for

Sec. 110 _. ees 5, 7, 13, 5la-62a Hydrocarbons” (1970) _. ila 6

Sec. 110(a) - __6, 5la-55a 36 Fed. Reg. 8186 6

Sec. 110(a) (1) = _4, 5la-52a ke SS 6

Sec. mre eal (A) __5, 52a-54a 37 Fed. Reg. 10842 _. 8

Sec. 110(c)(1) - 1, 55a-56a 37 Fed. Reg. 10851 8

See. 110(d) CO, a 88 Fed. Reg. 2194 8

Sec. 110(e) BR TE ph a _9, 59a-60a fu peeeeeneeee 9

_ >: an 4, 12, 13, 62a-66a 38 Fed. Reg. 10119 - 11

See. 113(a)(1) __ _7, 8, 10, 62a-63a 38 Fed. Reg. 30626, 30632 - 18

See. 113(a)(2) 000 «8 Bl | 38 Fed. Reg. 31232 et seg. iano 9

Sec. 113(a) (4) _. 8, 64a 2 ff dll 11

See. 113(b) 8 haa 40 Fed. Reg. 28064 - 11

FF FT 40 Fed. Reg. 29713 _ _. 11

See. 302(e) «7, Oe H. R. Pep. No. 91-1196, 91st Cong., 2d

Eee 4, 67a I MII scene eatltlinaianaheeniianiads 6

sec. 570) (i) tttstst—CSsS 11 S. Rep. No. 91-1196, 91st Cong., 2d Sess.

Ann. Cal. Code, Bus. & Prof., See. tei RENEE 5, 6

9889.50 et seg. (1973) 10

In the Supreme Court of the United Stater

OCTOBER TERM, 1975

No.

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

EDMUND G. BROWN, JR., GOVERNOR OF THE

STATE OF CALIFORNIA, ET AL.

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

STATE OF ARIZONA, ET AL,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The Solicitor General, on behalf of the Environ-

mental Protection Agency, petitions for a writ of cer-

tiorari to review the judgments of the United States

Court of Appeals for the Ninth Circuit in these cases.

OPINIONS BELOW

The opinions of the Court of Appeals for the Ninth

Circuit in Brown vy. Environmental Protection

Agency (App. A, infra, la-37a) and State of Ari-

(1)

zona v. Environmental Protection Agency (App. C,

infra, 40a-44a) are reported at 521 F.2d 827 and

521 F.2d 825, respectively.

JURISDICTION

The judgment of the Court of Appeals for the

Ninth Circuit in Brown v. Environmental Protection

Agency was entered on August 15, 1975 (App. B,

infra, 38a-39a). By order of November 3, 1975, Mr.

Justice Douglas extended the time within which to

file a petition for a writ of certiorari to and including

December 18, 1975. By order of December 8, 1975,

Mr. Justice Rehnquist further extended the time

within which to file a petition for a writ of certiorari

to and including December 24, 1975. The judgment

of the Court of Appeals for the Ninth Circuit in

State of Arizona v. Environmental Protection Agency

(App. D, infra, 45a-46a) was entered on September

8, 1975. By order of December 1, 1975, Mr. Justice

Rehnquist extended the time within which to file a

petition for a writ of certiorari to and including

December 18, 1975, and by order of December 8,

1975, he further extended that time to and including

December 24, 1975, The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether, upon a State’s failure to adopt an im-

plementation plan meeting the requirements of the

Clean Air Act, the EPA Administrator has authority

under the Act to require the State to inspect motor

vehicles to assure that they are properly maintained

to control airborne pollutants within the State.

2. Whether, if the EPA Administrator has such

statutory authority, the Clean Air Act is in this re-

spect a valid exercise of Congress’ power under the

Commerce Clause of the Constitution.

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND REGULATIONS INVOLVED

The pertinent provisions and regulations are set

forth in Appendix E, infra, 47a-7la.

STATEMENT

The Statutory Scheme

The Clean Air Act, 81 Stat. 485, as amended, 42

U.S.C. 1857 et seg. (the Act), requires the reduction

of pollutants in the ambient air in order “to protect

and enhance the quality of the Nation’s air resources

so as to promote the public health and welfare and

the productive capacity of its population.” Section

101(b)(1).’ In concluding that it was necessary to

attain this objective, Congress found that (Section

101(a) (2) )—

the growth in the amount and complexity of air

pollution brought about by urbanization, indus-

trial development, and the increasing use of

motor vehicles, has resulted in mounting dangers

1 For the purpose of clarity, Section references to the Act

will be used; cross-references to the United States Code cita-

tions appear in the Appendix.

to the public health and welfare, including injury

to agricultural crops and livestock, damage to

and the deterioration of property, and hazards to

air and ground transportation.

The Administrator of the Environmental Protection

Agency (EPA) must establish standards governing

maximum concentrations of particular pollutants in

the air, but the Act gives state and local governments

the primary responsibility for promulgating enforce-

able regulations to establish and implement air quality

control programs (Section 101(a)(3)). The Act re-

quires each State to submit to the Administrator

plans for “implementation, maintenance, and enforce-

ment” of the national primary and secondary stand-

ards* for every portion of the State within nine

months after the Administrator promulgates those

standards. Section 110(a) (1).

These state plans must provide a_ regulatory

scheme for controlling emissions from stationary and

2 National primary air quality standards are “ambient air

quality standards the attainment and maintenance of which

in the judgment of the Administrator * * * are requisite to

protect the public health.” Section 109(b) (1). A national

secondary ambient air quality standard is “a level of air

quality the attainment and maintenance of which in the judg-

ment of the Administrator * * * is requisite to protect the

public welfare from any known or anticipated adverse effects

associated with the presence of [each] air pollutant [for

which criteria have been established] in the ambient air.”

Section 109(b) (2). The “public welfare” includes “effects on

soils, water, crops, vegetation, manmade materials, animals,

wildlife, weather, visibility, and climate, damage to and deter-

ioration of property, and hazards to transportation, as well as

effects on economic values and on personal comfort and well-

being.” Section 302 (h).

moving sources of pollution to the extent necessary to

attain the national standards within each of the

State’s air quality control regions (Section 110). The

Act expressly defines the primary role of the States,

through the mechanism of the implementation plan,

in assuring the attainment of the air quality stand-

ard (Section 107(a)):

Each State shall have the primary responsi-

bility for assuring air quality within the entire

geographic area comprising such State by sub-

mitting an implementation plan for such State

which will specify the manner in which national

primary and secondary ambient air quality

standards will be achieved and maintained with-

in each air quality control region in such State.

The required elements of a state implementation plan

are set forth in Section 110(a)(2)(A)-(H) of the

Act and include: (1) regulations limiting emissions

from old and new pollution sources; (2) schedules

for compliance with the limitations; (3) provisions

for collecting, analyzing and making available emis-

sions data; (4) provisions for such additional meth-

ods of pollution control as may be necessary, includ-

ing land-use and transportation controls;* (5) a de-

scription of the State’s legal authority and resources

to implement its plan; (6) a procedure for revision

* A transportation control measure is “any measure, such

as reducing vehicle use, changing traffic flow patterns, decreas-

ing emissions from individual motor vehicles, or altering

existing modal split patterns [patterns of use of various

transportation methods] that is directed toward reducing

emissions of air pollutants from transportation sources.” 40

C.F.R. 51.1(r). See S. Kep. No. 91-1196, 91st Cong., 2d Sess.

12 (1970).

of its plan; (7) provisions for intergovernmental co-

operation; and (8) a procedure for inspection and

testing of motor vehicles.

On April 30, 1971, the Administrator, acting pur-

suant to Section 109 of the Act, promulgated national

primary and secondary air quality standards for six

pollutants. 36 Fed. Reg. 8186. Four of these pollu-

tants—carbon monoxide, photochemical oxidants, ni-

trogen dioxides and hydrocarbons—result chiefly

from motor vehicle emissions, which constitute forty-

eight percent of the total of approximately 190 mil-

lion tons of air pollutants produced in this country

annually.*

Each State was required to submit its implementa-

tion plan to the Administrator for approval no later

than January 30, 1972, and he was to act on all plans

by May 31, 1972 (Section 110(a)).° If the pian

* Motor vehicles emit carbon monoxide (CO) directly into

the air. Emitted hydrocarbons, however, combine with oxides

of nitrogen (NOx) in the presence of sunlight to produce the

secondary pollutant, photochemical oxidants (Smog). See De-

partment of Health, Education and Welfare, Nos. AP-63 and

AP-64, “Air Quality Criteria for Photochemical Oxidants”

and “Air Quality Criteria for Hydrocarbons” (1970); S. Rep.

No. 91-1196, 91st Cong., 2d Sess. 25-28 (1970); H.R. Rep. No.

91-1146, 91st Cong., 2d Sess. 6, 11-13 (1970); Committee

Print, Serial No. 93-18, A Legislative History of the Clean

Air Amendments of 1970, 93d Cong., 2d Sess. (Jan. 1974)

(“Leg. Hist.”), pp. 381-382 (S. Debate on S. 4358, Sept. 22,

1970, Sen. Montoya); Leg. Hist. 228 (S. Debate on S. 4358,

Sept. 21, 1970, Sen Muskie).

°On August 14, 1971, the Administrator announced that

although transportation controls were required as part of a

state plan, a lack of experience and available data made de-

ferral of such controls necessary. Thus submission by the

States of separate transportation control plans was deferred

until February 15, 1973. 36 Fed. Reg. 15486.

ee ee ee

submitted was inadequate to meet the primary am-

bient air quality standards, the Administrator was

required to develop and promulgate an appropriate

plan for the State (Section 110(c).°

Section 113 of the Act sets forth the manner in

which EPA is to enforce the Act’s provisions, It pro-

vides in part that whenever the Administrator finds

that “any person is in violation of any requirement

of an applicable implementation plan,”” he shall

notify the person and the State involved of his finding

(Section 113(a) (1) ). If the violation is not corrected

* Section 110(c) (1) provides in pertinent part:

The Administrator shall, after consideration of any

State hearing record, promptly prepare and publish pro-

posed regulations setting forth an implementation plan,

or portion thereof, for a State if—

x * * * *

(B) the plan, or any portion thereof, submitted for

such State is determined by the Administrator not to be

in accordance with the requirements of this section, * * *

a * + * *

* * * The Administrator shall, within six months after

the date required for submission of such plan (or revision

thereof), promulgate any such regulations unless, prior to

such promulgation, such State has adopted and submitted

a plan (or revision) which the Administrator determines

to be in accordance with the requirements of this section.

7 Section 302(e) defines “person”:

The term “person” includes an individual, corporation,

partnership, association, State, municipality, and political

subdivision of a State.

An “applicable implementation plan” includes an implemen-

tation plan promulgated by the Administrator under Section

110 (Section 110(d)).

within 30 days, the Administrator “may issue an

order requiring such person to comply with the re-

quirements of such plan or he may bring a civil

action” in the appropriate district court (ibid.).* In

the civil action the court may issue a permanent or

temporary injunction against “any person” who vio-

lates or fails or refuses to comply with an order or

any requirement of an applicable implementation plan

(Section 113(b) ).’

The California and Arizona Transportation Control Plans

1. California. On February 21, 1972, the State of

California submitted its ‘mplementation plan for

achieving and maintaining the national ambient air

quality standards, 37 Fed. Reg. 10851. As permitted

by the Administrator (supra, note 5), the plan did

not contain transportation control measures. The Ad-

ministrator found the plan inadequate in several re-

spects (37 Fed. Reg. 10842; 38 Fed. Reg. 2194).

While development of a revised plan was being nego-

tiated, the United States Court of Appeals for the

District of Columbia Circuit held that the Adminis-

trator had improperly permitted postponement of

* The order does not take effect until the person to whom

it is issued has had an opportunity to confer with the Admin-

istrator concerning the violation (Section 113(a) (4) ).

°The Act also provides for “Federally assumed enforce-

ment” of an “applicable implementation plan” whose require-

ments are being implemented by the State ineffectively (Sec-

tion 113 (a) (2)).

nee er eerie

submission of the transportation control portions of

state implementation plans beyond the statutory dead-

line of January 30, 1972. Natural Resources Defense

Council v. Environmental Protection Agency, 475

F.2d 968. The court ordered the Administrator to

rescind all previously granted extensions for the sub-

mission and implementation of transportation control

measures and to require the States to submit appro-

priate measures by April 15, 1973. The court directed

the Administrator to prepare and publish a plan as

required by the Act if a State failed to submit such

measures, 475 F.2d at 970-971.

On March 20, 1973, the Administrator notified the

States of the requirement to submit transportation

control measures. 38 Fed. Reg. 7323. The State of

California failed to submit adequate measures; ac-

cordingly, on June 22, 1973, the Administrator dis-

approved the measures submitted, and promulgated

a substitute transportation control plan for the State

of California on November 12, 1973 (38 Fed. Reg.

31232 et seqg.)”

The Administrator's plan included specific re-

quirements applicable to the various California air

quality control regions and general requirements ap-

plicable throughout the State."' One basic requirement

10 The Administrator granted the State a two-year extension

of time to meet the primary standards for photochemical oxi-

dants and carbon monoxide under Section 110(e) of the Act.

11 These requirements are summarized in the opinion below

(App. A, infra, 10a-lla); some of them have subsequently

been revoked or suspended (App. A, infra, 12a).

was that the State “establish an inspection and main-

tenance program applicable to all light-duty vehicles”

operating on state-owned streets and highways (40

C.F.R. 52.242, App. E, infra, 70a). The State was

required to submit “a detailed compliance schedule

showing the steps it will take to establish and en-

force” the inspection and maintenance program, in-

cluding the text of needed statutory proposals or

regulations, and a “signed statement from the Gov-

ernor” identifying the sources and amount of funds

for the program (id. at 70a-7la).

The State of California did not timely submit an

inspection and maintenance program, as required by

the EPA plan, and on April 14, 1975, EPA sent the

State of California a notice of violation pursuant to

Section 113(a)(1) of the Act. The notice cited the

State’s failure “to submit the compliance schedule or

the adopted regulations establishing the inspection and

maintenance program” pursuant to the EPA-promul-

gated implementation plan (App. A, infra, 7a). The

legislature of California has authorized the Governor

to implement a mandatory inspection and mainte-

nance program in the Los Angeles air quality con-

trol region, and later to expand the program to other

parts of the State. Ann. Cal. Code, Bus. & Prof.,

Sec. 9889.50 et seg. (1973).

2. Arizona. The implementation plan submitted

by Arizona on January 28, 1972, also omitted trans-

portation control plans. On April 13, 1973, following

the decision in Natural Resources Defense Council, v.

Environmental Protection Agency, supra, the State

submitted its transportation control plan. 38 Fed.

Reg. 10119. The Administrator concluded that this

plan contained an acceptable program for the inspec-

tion and maintenance of motor vehicles (38 Fed. Reg.

33369), but he added three provisions to assure com-

pliance with the Act: (1) a management-of-parking-

supply regulation, (2) an employee carpool incentive

program, and (3) a bus/carpool lane program (40

C.F.R. 52.137-52.139).’* These provisions required

the State to submit schedules showing how it planned

to meet the required deadlines for implementing the

programs. No such schedules were submitted; in-

stead, the State petitioned the court of appeals for

review of the Administrator’s action pursuant to

Section 307(b) (1) of the Act, 42 U.S.C. 1857h-5(b)

(1).

The Decisions Below

1. Edmund G. Brown, Jr., et al. v. Environmental

Protection Agency. Petitions to review the California

implementation plan promulgated by EPA were time-

ly filed in the court of appeals by approximately 208

parties pursuant to Section 307/b)(1) of the Act,

42 U.S.C. 1857h-5(b)(1). After preliminary pro-

ceedings, the court and the parties determined that the

question of the scope of EPA’s authority to require

compliance by the State was ripe for immediate ad-

1? EPA subsequently suspended the management-of-parking-

supply regulation (40 Fed. Reg. 28064, 29713).

judication. Other constitutional and statutory ques-

tions were to be heard at a iater date.

The court concluded that the Clean Air Act does

not authorize the “imposition of sanctions on a state

or its officials for failure to comply with the Adminis-

trator’s regulations which direct the state to regulate

the pollution-creating activities of those other than

itself * * *” (App. A, infra, 9a). The court reached

this conclusion on the basis of Section 113, which it

read as distinguishing between “persons” (agaizist

whom sanctions for non-compliance with implementa-

tion plans could be enforced) and States (App. A,

infra, 17a-23a) ; in light of court’s view of the struc-

ture of the Act; and because “Congress would not

have intended to take such a step in the light of the

delicacy with which federal-state relations always

have been treated by all branches of the Federal gov-

ernment in this obscure manner” (App. A, infra,

16a). The court recognized that “our reading of

section 113 and our perception of the structure of the

Act is not unambiguously supported by the appli-

cable legislative history” (App. A, infra, 19a).

Although resting its decision on statutory inter-

pretation, the court discussed the constitutional is-

sues that would be raised by a cortrary interpreta-

tion. Economic activity by the States that substan-

tially affects interstate commerce is subject to federal

regulation under the Commerce Clause, but no case,

according to the court of appeals, “holds or even sug-

gests that a state’s exercise of its police power with

respect to an econom:c activity which affects inter-

state commerce is itself an economic activity or ‘spe-

cies of commercial intercourse’ subject to regulation

by Congress” (App. A, infra, 27a). Thus, the federal

government cannot force a State to regulate air pol-

lution caused by others. Otherwise, the court sug-

gested, States might be deprived of cortrol over the

manner in which their tax revenues are spent and

might become simply tools for effectuating federally-

prescribed policies (App. A, infra, 32a-37a).

2. State of Arizona v. Environmental Protection

Agency. Petitions for review of EPA’s revisions of

the Arizona Transportation Control Plan were timely

filed by six parties, including the State of Arizona.

On September 8, relying on its decision in Brown v.

Environmental Protection Agency, supra, the court

of appeals held that “the Clean Air Act does not

authorize the imposition of sanctions against the

State of Arizona or its officials for failure to comply

with” the EPA amendments to the state inyplementa-

tion plan (App. C, infra, 43a).

3. Shortly after the Ninth Cireuit decided Brown

and Arizona, the Fourth Cireuit faced the issues pre-

sented in these cases in Maryland v. Environmental

Protection Agency, No. 74-1007, decided September

19, 1975."* Although focusing on Section 110 of the

Act, rather than Section 113, the court reached a con-

18 The Third Circuit had previously held, in Pennsylvania V.

Environmental Protection Ageney, 500 F.2d 246, that the

Clean Air Act gives the Administrator the authority to compel

state compliance with federally-promulgated implementation

plans and that the Act is constitutional.

clusion similar to that of the Ninth Circuit. In order

to avoid serious constitutional questions, it held that

“the EPA was without authority under the statute, as

a matter of statutory construction, to require Mary-

land to establish [transportation control] programs

and furnish legal authority for the administration

thereof” (slip op. at 41-42).

In District of Columbia v. Train, 521 F.2d 971,

the most recent case to consider these issues, the

Court of Appeals for the District of Columbia Circuit

took a somewhat different approach. It held that the

Administrator has no authority under the Act to re-

quire the States to adopt legislation or regulations to

establish a transportation control program found

necessary by EPA. Thus, if a State fails to submit

an acceptable plan, the Administrator must promul-

gate the regulations to be applied within the State;

he cannot compel the State to do so (521 F.2d at 983-

986). But, the court held, once such regulations have

been promulgated, the Act authorizes the Adminis-

trator to require the States to enforce them. The

court then faced the constitutional issue avoided by

the Ninth and Fourth Circuits and concluded that

a State could be required to enforce federal regu-

lations designed to control pollution the State caused

directly (e.g., through operation of state owned ve-

hicles) or indirectly (e.g., through allowing use of

state roads by vehicles not conforming to federal

requirements). But although the federal power ex-

tended to requiring the States to prohibit the use

of state roads by vehicles that do not comply with

federal standards, it could not constitutionally extend

to requiring the State to inspect privately operated

vehicles to assure that they are properly equipped and

maintained (521 F.2d at 992-994).

REASONS FOR GRANTING THE WRIT

The EPA Administrator’s authority to promulgate

transportation control plans to be enforced by the

States is of basic importance to the effectiveness of

the Clean Air Act. The courts of appeals that have

considered the extent of that authority have reached

widely varying and inconsistent conclusions on both

statutory and constitutione! grounds, Review by this

Court can end the uncertainty and confusion that

have resulted.“ Moreover, the constitutional princi-

ples involved here are fundamental to the federal

system, and the final resolution of the conflict among

the circuits may substantially determine what legis-

lative alternatives are available to Congress in the

future.

If the Clean Air Act does not permit the Adminis-

trator to promulgate effective plans to control the

-emission of pollutants by motor vehicles after the

States have failed to do so and to require the States

to implement and enforce them, then, as a practical

matter, the Act may be as ineffectual as previous

efforts to persuade the States to improve air quality

(See Train v. Natural Resources Defense Council,

14 The Solicitor General has authorized the filing of petitions

for writs of certiorari in Maryland v. Environmental Protec-

tion Agency, supra, and District ef Columbia v. Train, supra.

421 U.S. 60, 63-65). This will mean that air pollu-

tion associated with our existing transportation sys-

tems will remain substantially uncontrolled since

comprehensive pollution control programs governing

motor vehicles in use are financially and adminis-

tratively beyond the capability of EPA.

Alternatively, if the Act does provide for federal

supervision of state transportation control systems,

but the means Congress chose to provide that super-

vision are unconstitutional, this would not only pro-

voke congressional reconsideration of the Act; it

would also indicate that other state administered,

federally supervised programs not tied to grants-in-

aid are of dubious constitutionality, and that the

statutory scheme utilized here must be avoided in

future legislation.

As matters now stand, the Administrator faces a

dilemma from the conflicting decisions concerning

his obligations under the Act. In the Third Circuit, he

has the duty to promulgate, when necessary, substitute

transportation control plans, including inspection and

maintenance programs, requiring the States to adopt

and enforce pollution control measures (Pennsyl-

vania v. Environmental Protection Agency, 500 F.2d

246). In the Ninth and Fourth Circuits, he must him-

self adopt and enforce the necessary measures (Brown

v. Environmental Protection Agency, supra, and

Maryland y. Environmental Protection Agency, su-

pra). In the District of Columbia Circuit, he must

adopt a detailed substitute state inspection and main-

tenance program, but may require the States to en-

aid

force it in part. (District of Columbia v. Train,

supra). |

The difficulty of the Administrator’s position is

highlighted by the fact that the plan at issue in

District of Columbia v. Train includes the entire

national capital area. Thus, the Administrator has

been instructed by one court of appeals that the Act

requires him to develop regulations for enforcement

by the States of Maryland and Virginia in the Wash-

ington suburban area, while he has been told by an-

other court of appeals with jurisdiction over Mary-

land and Virginia that he has no authority to require

the States to enforce such plans (Maryland v. Envi-

ronmental Protection Agency, supra). Only this

Court can resolve this dilemma.

As to the merits, we believe the court below erred

in its interpretation of the Act, misreading the Act’s

provisions to avoid facing admittedly difficult consti-

tutional issues. The Act contemplates that if a State

fails to promulgate an appropriate implementation

plan, the Administrator must himself do so. But

once substitute measures have been promulgated to

control motor vehicle emissions, the State can be

compelled to implement them, although this may re-

15 EPA does not challenge in this Court the decision of the

Court of Appeals for the District of Columbia Circuit that,

in the absence of a satisfactory state plan, the Administrator

must promulgate a comprehensive substitute plan, and cannot

simply direct the State to pass legislation or regulations

establishing programs that comply with the Act.

quire appropriation of state funds or even enactment

of complementary state legislation.’

° The Administrator has described his interpretation of the

scope of his authority as follows (38 Fed. Reg. 30626, 30632

(Nov. 6, 1973):

Many of the measures promulgated herein include re-

quirements that Federal, State or local units of govern-

ment take specified actions to control air pollution from

transportation systems. The Clean Air Act and its legis-

lative history demonstrate that this was the intent of

Congress. The approach of leaving primary responsibility

for implementation at the State and local level is also

made necessary by the nature of air pollution generated

by millions of individual vehicles operating on an exten-

sive network of public roads owned and administered by

State and local governments.

The specific requirements imposed herein upon States

and localities are based largely on two conclusions in ad-

dition to the factors discussed above: (1) that the gov-

ernmental units must abide by valid implementation plan

requirements just as much as any other source owners,

and (2) that they are the owners and operators of pol-

lution sources through their ownership and operation

of highway transportation facilities.

x x * * *

Transportation is a necessary service. In our society,

the form in which it is provided depends overwhelmingly

on the regulatory, taxing, and investment decisions made

at all levels of government. By building and maintaining

roads and highways, by licensing vehicles and operators,

by providing a system of traffic laws, and in many other

ways, government has encouraged the growth of auto-

mobile use to its present levels. There is nothing in-

evitable about such a choice. Governments could equally

well have chosen ‘o discharge their basic function of

maintaining a transportation system in ways that would

have discouraged the use of single-passenger automobiles,

and encouraged the use of mass transit. But often they

have not.

While we recognize that this interpretation of the

Act raises significant constitutional questions, we

do not believe that they can legitimately be avoided.

Congress acted on the firm belief that when analyzed

in the light of this Court’s decisions and the precise

scope of the authority granted by the Act, the Con-

stitution permits the allocation of responsibilities Con-

gress has enacted.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

PETER R. TAFT,

Assistant Attorney General.

HARRIET S. SHAPIRO,

Assistant to the Solicitor General.

EDMUND B. CLARK,

MICHAEL D. GRAVES,

NEIL T. PROTO,

Attorneys.

ROBERT V. ZENER,

General Counsel,

Environmental Protection Agency.

DECEMBER 1975.

APPENDIX A

(CORRECTED OPINION )

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 73-3306

EDMUND G. BROWN, JR., GOVERNOR OF THE

STATE OF CALIFORNIA, ET AL., PETITIONERS,

v8.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.

No. 73-3305

TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY

& COLLEGES, ETC., PETITIONER,

v8.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.

No. 73-3307

CALIFORNIA AIR RESOURCES BOARD, ET AL.,

PETITIONERS,

v8.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.

On Petition to Review Actions of the Administrator

of the Environmental Protection Agency

OPINION

[August 15, 1975]

Before: WRIGHT, KILKENNY and SNEED, Cir-

Cuit Judges.

SNEED, Circuit Judge:

This is a proceeding growing out of numerous

petitions for review of certain regulations of the En-

vironmental Protection Agency. Petitioners included

the Governor of the State of California, Trustees of

the California State University and Colleges, the

California Air Resources Board, numerous California

cities and counties, private business concerns, and

others. Certain of these petitioners filed consolidated

briefs in which certain constitutional questions were

raised. In due course, the Agency moved to expedite

the hearing with respect to these constitutional is-

sues. This motion was granted. Those petitioners

seeking to present constitutional issues thereafter

were directed to appear at a prehearing conference

pursuant to Rule 33, Fep. R. App. P., at which the

issues sought to be raised were identified and the

time to be allowed for oral argument was fixed. At

this prehearing conference, the petitioners were in-

formed that this Court contemplated entering a judg-

ment regarding the constitutional issues pursuant to

Rule 54(b), Fep. R. Civ. P., prior to a hearing on,

or disposition of, such other issues as were raised by

the petitioners. Oral argument on the constitutional

issues has been heard and our disposition of them is

set forth herein. Our jurisdiction to hear these peti-

tions is based on Section 307(b) of the Clean Air

Act.*

The Background of This Proceeding

The controversy between the petitioners and the

Administrator has its roots in the Clean Air Amend-

ments of 1970.2 Under these Amendments, Califor-

nia was required to submit for the approval of the

Administrator a state plan providing for the imple-

mentation, maintenance, and enforcement of national

ambient air quality standards,’ including, if neces-

sary, land-use and transportation controls.‘ Califor-

nia complied by submitting its plan on February 21,

1 42 U.S.C.A. § 1857h-5(b) (West Supp. 1975). In view of

the issuance of a “Notice of Violation” by EPA to the State,

which is the initial step in applying sanctions for non-

compliance with EPA regulations, and in view of the interre-

lationship between the enforcement procedures and the sub-

stantive regulations contained in the EPA’s implementation

plan, the constitutional challenges here made are clearly ripe

for adjudication. See Pennsylvania v. Environmental Pro-

tection Agency, 500 F.2d 246, 256 n.17 (3d Cir. 1974); and

text pp. 6-7.

2 Act of Dec. 31, 1970, P.L. 91-604, 84 Stat. 1676, amending

42 U.S.C. § 1857 et seq. (Supp. V, 1969).

Clean Air Act §110(a), 42 U.S.C.A. § 1857c-5(a) (West

Supp. 1975).

*Clean Air Act §110(a) (2) (B), 42 U.S.C. § 1857c-5(a)

(2) (B) (West Supp. 1975).

1972.° The Administrator approved this plan in part

and disapproved it in part on May 31, 1972.° Fol-

lowing a further revision by California and partial

approval by the Administrator, there were promul-

gated rules by the Administrator on September 22,

1972, applicable to certain aspects of air pollution

control." These rules, however, did not purport to

control photochemical oxidants.

This omission led to City of Riverside v. Ruckels-

haus 4 E.R.C. 1728 (C.D. Cal. 1972), a suit in the

District Court for the Central District of California,

in which the Administrator was ordered to promul-

gate regulations to control photochemical oxidants,

including all necessary transportation controls and

land-use controls, not later than January 15, 1973.

The Administrator thereafter issued such regulations

but, pursuant to discretion recognized by the court in

City of Riverside, extended the time within which

the national primary standard for photochemical oxi-

dants in California could be attained for two years.*

Such extensions were held impermissible under the

terms of the Clean Air Act in National Resources

Defense Council, Inc. v. Environmental Protection

Agency, 475 F.2d 968 (D.C. Cir. 1973). The court

directed the Administrator to inform the states which

had not submitted an implementation plan enabling

°37 Fed. Reg. 10851 (1972).

°37 Fed. Reg. 10852 (1972).

737 Fed. Reg. 19812-15, 19829-35 (1972).

° 38 Fed. Reg. 2194, 10851 (1973).

them to meet the primary standard by May 31, 1975

to submit such plans, including but not limited to

land-use and transportation controls, not later than

April 15, 1973. California failed to submit the re-

quired plan and the Administrator disapproved its

previous plan because it did not provide for attain-

ment and maintenance of the national standards for

photochemical oxidants.’ Thereafter, the Administra-

tor promulgated a transportation control plan for

California*’ which, together with the regulations

promulgated pursuant to the mandate of the court in

City of Riverside, supra, covered all of California’s

Air Quality Control Regions.

After concluding that attainment of the required

ambient air quality standard for photochemical oxi-

dants and carbon monoxide must be deferred until

1977 because the necessary technology or other alter-

natives are not available,” the Administrator’s plan

contemplated among other things, the reduction of

gasoline sold within the Los Angeles, San Francisco,

Sacramento Valley, San Joaquin Valley and San

Diego Regions; the operation by the State of Califor-

nia of an inspection and maintenance program de-

signed to reduce emissions from automobiles; limita-

tions to be imposed by the State on the use of motor-

cycles; the institution by the State of an oxidizing

catalyst retrofit program; control of dry cleaning

* 38 Fed. Reg. 16550, 16556, 16564 (1973).

1° 88 Fed. Reg. 31232, as corrected, 38 Fed. Reg. 34124,

35467 (1973); 39 Fed. Reg. 1025, 1848 (1974).

11 See Clean Air Act § 110(e) (1) (A), 42 U.S.C. § 1857c-5

(e) (1) (A) (1970).

solvent vapor losses; the imposition of surcharges on

parking spaces; the development of a procedure of

review and approval of construction or modification

of parking facilities; the establishment by the State

of a computer-aided carpool matching system; and

the fixing by the State of certain preferential bus and

carpool lanes.“* This plan specifically directed the

State of California to undertake those tasks assigned

to it, to report its compliance to the Agency, and, in

the case of the inspection and maintenance program,

to report the date by which the State would recom-

mend any needed legislation and to submit “[a]

signed statement from the Governor and State Treas-

urer identifying the sources and amounts of funds

for the program” and the “text of needed legislation”

if existing legislation does not authorize the funds

which the program will require.** Other miscellane-

ous duties were imposed upon the State.* The Agency

has made clear that it believes it has the legal au-

thority to bring civil actions or seek penalties against

the states which fail to comply with its regulations."

At least 208 parties petitioned this Court for a

review of these actions within the 30-day period

12238 Fed. Reg. 31232-55 (1973). The Agency’s require-

ments are codified at 40 C.F.R. §§ 52.220-52.266 (1974).

13 40 C.F.R. § 52.242(f). For similar requirements, see, e.g.,

40 C.F.R. §§ 52.243(f), 52.244(f), 52.257(c), 52.258(f),

52.259(g) (1974).

4 F.g., 40 C.F.R. § 52.262 (1974) (status report on “corri-

dor issues”’).

*° 38 Fed. Reg. 30632-33 (1973).

allowed by the Clean Air Act.’* Many of these have

been dismissed, but a large number are currently

pending. In addition to certain revisions, the Admin-

istrator has suspended indefinitely the regulations

pertaining to management of parking supply” and

has withdrawn all parking surcharge regulations.”

The indefinite suspension of the parking management

regulations has enabled us to dismiss without preju-

dice a number of petitions which were directed to

the validity of these regulations.”

Nonetheless, the Administrator insists that the re-

mainder of its regulations constitute a valid exercise

of its authority and that its directions to the State of

California contained therein must be obeyed. In

keeping with this view, the Administrator on April

11, 1975, dispatched to California a “Notice of Viola-

tion” pursuant to Section 113(a)(1) of the Clean

Air Act” for failure “to submit the compliance

schedule or the adopted regulations establishing the

inspection and maintenance program” required by the

Administrator’s regulations.

The Administrator, however, suggests that a deter-

1% Clean Air Act § 307(b), 42 U.S.C.A. 1857h-5(b) (West

Supp. 1975). The figure 208 is acknowledged by the Agency in

its brief.

740 Fed. Reg. 29713 (1975).

** 39 Fed. Reg. 1848 (1974).

1® California Business Properties Ass’n v. United States

Environmental Protection Agency, No. 73-3268 (9th Cir.,

20 42 U.S.C. § 1857c-8(a) (1) (1970).

mination regarding its authority under the Clean Air

Act and the Constitution is not ripe at the present

time because it has not instituted as yet the proce-

dures necessary to invoke sanctions against the State

of California. The sanctions include, the Administra-

tor insists, injunctive relief,” imposing a receivership

on certain state functions,” holding a state official in

civil contempt with a substantial daily fine until

compliance is secured,” and requiring a state to allo-

cate funds from one portion of its budget to another

in order to finance the undertakings required by the

Agency.“ The Agency disclaims any authority to seek

criminal penalties against state legislators.” It also

indicates that in the final analysis the fashioning of

sanctions is within the discretion of the appropriate

court. We do not believe any doctrine of ripeness or

exhaustion of administrative remedies should pre-

clude our determination of the issues raised in this

proceeding by the State of California and others re-

garding the authority to impose the regulations with

respect to which these petitions for review were filed.

*1 Clean Air Act § 113(b), 42 U.S.C. 1857c-8(b) (Supp. III,

1973).

22 Cf. Turner v. Goolsby, 255 F. Supp. 724, 730, 733-34 (S.D.

Ga. 1966).

*8 Harvest v. Board of Public Instruction, 312 F. Supp. 269,

278 (M.D. Fla. 1°70).

* Wyatt v. Stickney, 344 F. Supp. 373, 377-78 (M.D. Ala.

1972), aff'd, Wyatt v. Aderholt, 503 F.2d 1305, 1316 (5th Cir.

1974).

** Cf. Gravel v. United States, 408 U.S. 606, 616 (1971).

Such issues must be determined in this proceeding

for it is unlikely they could be raised “in a civil or

criminal proceeding for enforcement.” * Moreover,

the orderly administration of the Clean Air Act re-

quires that the serious questions to which the parties

have addressed themselves be resolved as expediti-

ously as possible.

The position of the State of California and the

other petitioners in this proceeding is simply that

the Clean Air Act does not authorize the Adminis-

trator to impose sanctions on the state or its officials

for failure to comply with the regulations here being

reviewed, and that any such attempt based on the

Commerce Power would be unconstitutional. While

we do not feel it necessary to embrace fully Califor-

nia’s position, we do believe that the meaning of the

Clean Air Act, insofar as the impositions of sanc-

tions is concerned, is sufficiently ambiguous to p»rmit

us to interpret it in a fashion that avoids the consti-

tutional issues. Accordingly, we hold that the Clean

Air Act does not authorize the imposition of sanctions

on a state or its officials for failure to comply with

the Administrator’s regulations which direct the state

to regulate the pollution-creating activities of those

other than itself, its instrumentalities and subdivi-

sions, and the municipalities within its borders. Spe-

cifically, we hold that the Clean Air Act does not

authorize the imposition of sanctions for any failure

of the State of California to comply with the direc-

26 See Clean Air Act § 307(b) (2), 42 U.S.C. § 1857h-5(b)

(2) (1970), and note 1 supra.

10a

tions contained in 40 C.F.R. §52.22(a) (growth

plans for maintenance of national standards); 40

C.F.R. § 52.242 (inspection and maintenance pro-

gram); 40 C.F.R. § 52.243 (motorcycle limitation) ;

40 C.F.R. § 52.244 (oxidizing catalyst retrofit); 40

C.F.R. § 52.245 (control of oxides of nitrogen, hydro-

carbon, and carbon monoxide emissions from in-use

vehicles) ; 40 C.F.R. § 52.257 (computer car-pooling

matching) ; 40 C.F.R. § 52.258 (mass transit priority-

exclusive bus use); 40 C.F.R. § 52.259 (ramp meter-

ing and preferential bus/carpool lanes); 40 C.F.R.

§ 52.261 (preferential bus/carpool lanes, San Fran-

cisco Bay Area); 40 C.F.R. § 52.263 (priority treat-

ment for buses and carpools, Los Angeles Region) ;

40 C.F.R. § 52.264 (mass transit priority strategy

and planning) ; 40 C.F.R. § 52.265 (mass transit and

transit priority planning); and 40 C.F.R. § 52.266

(mass transit and transit priority planning). It

follows that we consider 40 C.F.R. § 52.23 (violations

and enforcement) invalid to the extent it is contrary

to this holding.

Our holding recognizes that the pollution-creating

activities of the State of California, its instrumen-

talities and subdivisions, and its municipalities, are

subject to valid regulations promulgated by the Ad-

ministrator. We also recognize that the State must

avoid impeding any enforcement of valid regulations

which the Administrator undertakes. We reject, how-

ever, the view that the Clean Air Act authorizes the

imposition of sanctions against the State for its fail-

ure to administer and enforce a system of regulations

lla

promulgated by the Administrator which are designed

to control the pollution-creating activities of the citi-

zens of the State and others subject to its jurisdic-

tion. Tersely put, the Act, as we see it, permits sanc-

tions against a state that pollutes the air, but not

against a state that chooses not to govern polluters

as the Administrator directs.

In support of this proposition, we shall examine

those portions of the Clean Air Act upon which the

Administrator relies and demonstrate that the Act

does not unambiguously vest him with the powers he

here asserts. Thereafter, we shall examine the consti-

tutional difficulties which the Administrator’s view

encounters and which induce us to reject his interpre-

tation of his powers.”

Interpretation of the Act

The Clean Air Act as amended ™ is both lengthy

27 To support his interpretation, the Administrator relies

upon Weinberger v. Bentex Pharmaceutical, Inc., 412 U.S.

645, 653 (1973); Udall v. Tallman, 380 U.S. 1 (1965); Mitchell

v. DeMario Jewelry, 361 U.S. 288, 291-92 (1960); Porter v.

Warner Holding Co., 328 U.S. 395, 398 (1946); Ashwander

v. Tennessee Valley Authority, 297 U.S. 288, 346-48 (1936);

South Terminal Corp. v. Environmental Protection Agency,

504 F.2d 646 (ist Cir. 1974); Pennsylvania v. Environmental

Protection Agency, 500 F.2d 246, 263 (3d Cir. 1974); Powell

v. Katzenbach, 359 F.2d 221, 235 (D.C. Cir. 1965), cert-

denied, 384 U.S. 906 (1966); 5 B.N.A. “Environmental Re-

porter-—Current Developments” 755 (Sept. 20, 1974); and

cases cited notes 22-25 supra.

28 42 U.S.C.A. § 1857 et seq. (West Supp. 1975) (Chap.

15B-Air Pollution Control).

12a

and complex. It is divided into four subchapters des-

ignated “Air Pollution Prevention and Control,”

“Motor Vehicle Emission Standards,” “General Pro-

visions,” and “Noise Pollution.” As already indi-

cated, the controversy between the Administrator and

the State of California before us grows out of sec-

tion 110(c)(1) of the Act,”® which empowers the

Administrator to promulgate an implementation plan

if the plan submitted by a state is not “in accordance

with the requirements of this section.” * The Admin-

istrator contends that having promulgated such a

plan the Act empowers him to impose sanctions on

the State, or at least on the administrative officials

of the State, should it or they fail to administer and

enforce the plan. It is clear that the Administrator’s

regulation, 40 C.F.R. § 52.23, so provides.”

* 42 U.S.C.A. § 1857c-5 (West Supp. 1975).

* Clean Air Act §110(c)(1)(B), 42 U.S.C.A. § 1857c-5

** 40 C.F.R. § 52.23 (1974) provides:

Failure to comply with any provisions of this part shall

render the person or Governmental entity so failing to

comply in violation of a requirement of an applicable

implementation plan and subject to enforcement action

under Section 113 of the Clean Air Act. With regard to

compliance schedules, a person or Governmental entity

will be considered to have failed to comply with the re-

quirements of this part if it fails to timely submit any

required compliance schedule, if the compliance schedule

when submitted does not contain each of the elements

it is required to contain, or if the person or Governmental

entity fails to comply with such schedule. [38 Fed. Reg.

30633 (1973) .]

13a

The statutory authority for this regulation is by

no means apparent. The most likely place in the Act

for such authority to be found would seem to be

section 113 of the Cles Air Act,** which deals with

“Federal enforcement procedures.” More particu-

larly, this authority should appear in subsection

(a) (2) which deals with the situation in which viola-

tions of implementation plans “appear to result from

a failure of the state in which the plan applies to

enforce the plan effectively.” * It does not unambigu-

ously so appear. The subsection first provides that if

the “Administrator finds such failure extends beyond

the 30th day after such notice, he shall give public

2 42 U.S.C.A. § 1857¢c-8 (West Supp. 1975).

% Clean Air Act § 113(a) (2), 42 U.S.C. § 1857c-8(a) (2)

(1970) provides:

(2) Whenever, on the basis of information available

to him, the Administrator finds that violations of an

applicable implementation plan are so widespread that

such violations appear to result from a failure of the

State in which the plan applies to enforce the plan effec-

tively, he shall so notify the State. If the Administrator

finds such failure extends beyond the 30th day after such

notice, he shall give public notice of such finding. During

the period beginning with such public notice and ending

when such State satisfies the Administrator that it will

enforce such plan (hereafter referred to in this section

as “period of federally assumed enforcement”), the Ad-

ministrator may enforce any requirement of such plan

with respect to any person—

(A) by issuing an order to comply with such re-

quirement, or

(B) by bringing a civil action under subsection

(b) of this section.

l4a

notice of such finding.” Thereafter, it provides that

during the period of the state’s recalcitrance or neg-

lect, “the Administrator may enforce any require-

ment of such plan with respect to any person (A) by

issuing an order to comply with such requirement, or

(B) by bringing a civil action under subsection (b)

of this section.” The Administrator contends that,

inasmuch as the term “person” is defined in subsec-

tion 302(e)”* to include a state, municipality, or

political subdivision, subsection 113(a)(2) author-

izes a civil action against a recalcitrant state.

Moreover, he contends that subsections (b)* and

#42 U.S.C. § 1857h(e) (1970).

*° Clean Air Act § 113(b), 42 U.S.C.A. § 1857c-8(b) (West

Supp. 1975) provides:

(b) The Administrator may commence a civil action

for appropriate relief, including a permanent or tempo-

rary injunction, whenever any person—

(1) violates or fails or refuses to comply with any

order issued under subsection (a) of this section; or

(2) violates any requirements of an applicable

implementation plan (a) during any period of Fed-

erally assumed enforcement, or (b) more than 30

days after having been notified by the Administrator

under subsection (a) (1) of this section of a finding

that such person is violating such requirement; or

(3) violates section 1857c-6(e), 1857c-7(c), or

1857c-10(g) of this title; or

(4) fails or refuses to comply with any require-

ment of section 1857c-9 of this title.

Any action under this subsection may be brought in the dis-

trict court of the United States for the district in which the

defendant is located or resides or is doing business, and such

court shall have jurisdiction to restrain such violation and to

15a

(c)** of section 113 which impose sanctions also are

applicable to states because of their use of the term

“person.”

require compilance. Notice of the commencement of such

action shall be given to the appropriate State air pollution

control agency.

* Clean Air Act § 113(c), 42 U.S.C.A. § 1857c-8(c) (West

Supp. 1975) provides:

(A) violates any requirement of an applicable imple-

mentation plan (i) during any period of Federally as-

sumed enforcement, or (ii) more than 30 days after hav-

ing been notified by the Administrator under subsection

(a) (1) of this section that such person is violating such

requirement, or

(B) violates or fails or refuses to comply with any

order issued by the Administrator under subsection (a)

of this section, or

section 1857c-10(g) of this title shall be punished by a

fine of not more than $25,000 per day of violation, or by

imprisonment for not more than one year, or by both. If

the conviction is for a violation committed after the first

conviction of such person under this paragraph, punish-

ment shall be by a fine of not more than $50,000 per day

of violation, or by imprisonment for not more than two

years, or by both.

(2) Any person who knowingly makes any false statement,

representation, or certification in any application, record,

report, plan, or other document filed or required to be main-

tained under this chapter or who falsifies, tampers with, or

knowingly renders inaccurate any monitoring device or

method required to be maintained under this chapter; shall

upon conviction, be punished by a fine of not more than

$10,000, or by imprisonment for not more than six months,

or by both.

l6a

We disagree. While we are not prepared to say

that under no circumstances should the term “per-

son” be read to include a state when used in connec-

tion with a sanction-imposing provision of the Act,

we are convinced that section 113(a)(2) is designed

to provide the Administrator with power to enforce

against polluters provisions of an implementation

plan not being enforced by the state. Moreover, we

are not convinced that the section is designed to equip

the Administrator with power to sanction the non-

enforcing state.

Our lack of conviction on this point primarily is

grounded in our belief that Congress would not have

intended to take such a step in the light of the deli-

cacy with which federal-state relations always have

been treated by all branches of the Federal govern-

ment in this obscure manner. In addition, we should

be reluctant to interpret expansively a provision such

as subsection 113(a)(2) when by doing so we en-

counter fundamental constitutional questions. We

also find comfort in the fact that in subsection 113

(a) (1), as well as within subsection 113(a) (2), the

* Clean Air Act §113(a) (1), 42 U.S.C. § 1857c-8(a) (1)

(1970) provides:

(a) (1) Whenever, on the basis of any information

available to him, the Administrator finds that any person

is in violation of any requirement of an applicable imple-

mentation plan, the Administrator shali notify the person

in violation of the plan and the State in which the plan

applies of such finding. If such violation extends beyond

the 30th day after the date of the Administrator’s notifi-

cation, the Administrator may issue an order requiring

17a

term “State” is employed in a manner that distin-

guishes it from the term “person.” That is, in sub-

section 113(a)(1) the Administrator must notify

both the “person” in violation of a plan and the

“State” in which the plan being violated applies. In

subsection 113(a)(2) when a “State” fails to en-

force the plan effectively, the Administrator may

enforce it against “any person.” Had Congress in-

tended the term “person” in that context to include

the “State,” the natural language to have employed

would have been as follows:

During the period beginning with such public

notice and ending when such State satisfies the

Administrator that it will enforce such plan

(hereinafter referred to in this section as

“period of federally assumed enforcement”), the

Administrator may enforce any requirement of

such plan with respect to any person [, including

the State so failing to enforce the plan effec-

tively |—

The language in brackets is missing from the text of

section 113(a)(2) and we decline to read it in by

way of the statutory definition of the term “person.”

The Administrator had no difficulty in making clear

his intention to impose sanctions on states not en-

forcing effectively implementation plans.“ Congress

can be expected to have no less capacity for clarity.

As we see it, subsections 113(a)(1) and (a) (2)

such person to comply with the requirements of such

plan or he may bring a civil action in accordance with

subsection (b) of this section.

88 See note 31 supra.

18a

are designed to vest the Administrator with power to

enforce a state implementation plan should the state

fail to do so. This parallels the Administrator’s power

to promulgate an implementation plan for a state

which fails to prepare a suitable plan.” A diligent

search of the sections of the Clean Air Act fails to

reveal a single instance in which Congress explicitly

has vested in the Administrator power to compel

the states to administer and enforce regulations

promulgated by him designed to govern polluters,

potential or actual, other than the state, municipality,

or political subdivision of the state. Counsel for the

Administrator also have been unable to guide us to

such a provision. This strengthens our belief that

the function of subsections 113(a)(1) and (a) (2) is

as we perceive it to be.

Viewed generally, the structure of the Clean Air

Act reflects a genuine effort to develop an elaborate

form of cooperative federalism in which both the

Federal government and the states are assigned vital

roles. Techniques such as preemption, total and par-

tial,’ delegations to the states of federal authority,”

* Clean Air Act § 110(c) (1), 42 U.S.C.A. § 1857c-5(c) (1)

(West Supp. 1975).

* Clean Air Act § 119(f), 42 U.S.C.A. § 1857c-10(f) (West

Supp. 1975) (unavailable fuels use requirements); Clean Air

Act § 209(a), 42 U.S.C. § 1857f-6a(a) (1970) (new motor

vehicle emission standards); Clean Air Act § 211(c) (4) (A),

42 U.S.C. § 1857f-6e(c) (4) (A) (1970) (fuel use controls);

Clean Air Act § 233, 42 U.S.C. § 1857f-11 (1970) (aircraft

emission standards).

“E.g., Clean Air Act §107(a), 42 U.S.C. § 1857c-2(a)

(1970) (responsibility for assuring air quality); Clean Air

19a

and the creation of opportunities for states to partici-

pate in the task of controlling air pollution ** are em-

ployed. We find this complex structure incompatible

with the view that buried within section 113 is the

Congressional intent to make the states departments

of the Environmental Protection Agency no less obli-

gated to obey its Administrator’s command than are

its subordinate officials.

We readily acknowledge that our reading of sec-

tion 113 and our perception of the structure of the

Act is not unambiguously supported by the applicable

legislative history. On the other hand, we have found

nothing that marks our interpretation as plainly er-

roneous. An important example of the ambiguity

that characterizes the relevant history is the follow-

ing colloquy between Senator Eagleton of Missouri

and Senator Muskie of Maine following the presen-

tation by Senator Muskie of the Conference Report

on the Clean Air Amendments of 1970. Senator

Eagleton, in commenting on “the significance and the

parameters of this noteworthy piece of legislation,”

said,

Act § 111(c), 42 U.S.C. § 1857c-6(a) (1970) (power to imple-

ment and enforce standards of performance); Clean Air Act

§ 112(d), 42 U.S.C. § 1857c-7(d) (1970) (power to implement

and enforce emission standards for hazardous air pollutants) ;

Clean Air Act § 211(c) (4) (B)-(C), 42 U.S.C. § 1857f-6c(c)

(4) (B)-(C) (1970) (power to prescribe and enforce vehicle

emission controls).

* F.g., Clean Air Act § 210, 42 U.S.C. § 1857f-6b (1970)

(grants for developing and maintaining inspection and con-

trol programs).

20a

I think we should also pause to record that this

bill also marks a very significant step forward

in the continuing development of more respon-

sive and responsible relationships among the

Federal Government and the State and local gov-

ernments of our country .... Would the Sena-

tor from Maine agree that this bill has very

broad significance in the area of Federal-State

relations?

Senator Muskie’s reply was imprecise:

Yes. May I say to the Senator that during the

deliberations on this bill I have been very much

interested in preserving “local option’ features

.... In my judgment, the bill will give State

and local authorities sufficient latitude in select-

ing ways to prevent and control air pollution.

116 Cong. Rec. 42386 (1970).

Another example of this ambiguity is the follow-

ing excerpt pertaining to section 113 taken from the

Senate Report:

If the Secretary should find a State or local

control agency not acting to-abate violations of

implementation plans or to enforce certification

requirements, he would be expected to use the

full force of Federal law. Also, the Secretary

should apply the penalty provisions of this sec-

tion to the maximum extent necessary to under-

write the strong public demand for abatement

of air pollution and to enforce compliance with

the provisions of the Act.

If the Secretary and State and local agencies

should fail their responsibility, the public would

be guaranteed the right to seek vigorous en-

2la

forcement action under citizen suit provisions of

section 304 [42 U.S.C. §1857h-2 (1970) }.

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 20 (1970).

While it is possible to read this as the Administrator

insists we should, it is far more natural and reason-

able to read it as indicating that the Administrator

had ample power to enforce an implementation plan

when a state has failed to do so.

Supporting this view of the Act is the following

comment appearing in the House Report with respect

to the House version of what became section 113 of

the Act:

Whenever the Secretary finds that as a result

of the failure of a state to enforce the plan ap-

plicable to such State, any ambient air quality

standard is not met, the Secretary is directed to

notify the affected State or States, persons not

in compliance with the plan and other interested

parties. If the failure of the State to take ac-

tion extends beyond the 30 days after the Secre-

tary’s notification, the Secretary may request the

Attorney General to bring suit on behalf of the

United States in the appropriate U. S. district

court to secure abatement of the pollution.

H. R. Rep. No. 91-1146, 91st Cong., 2d Sess. 8

(1970).

While the House version was significantly different

from section 113 as enacted, it is by no means clear

that section 113 intended to lump ineffectively-en-

forcing states with polluters and subject each of them

to the same far-ranging set of remedies provided by

22a

that section. To so intend indicates an insensitivity

to the delicacy of federal-state relations which nei-

ther is reflected in other portions of the Act nor is

worthy of Congress.

This recital of inconclusive bits of legislative his-

tory could be continued; however, we limit it to a

few additional examples set forth in the margin.”

*s Congressman Springer, during presentation of the House

Report, said,

The bill provides . . . that State governments will create

plans for the implementation and enforcement of the air

standards. In fact a State may declare more stringent

standards if it feels necessary. ... [But i]f a State hangs

back and fails to move out, the Federal Government will

take over and make rules and regulations amounting to

a State plan. Machinery for forcing a plan upon a State

is spelled out including penalties of $10,000 a day for

failing to act.

116 Cong. Rec. 19206 (1970).

Congressman Vanik, duri: r the same debate, said,

Further, if a State fails to enforce its plan, the Secretary

of Health, Education, and Welfare can notify the State

and persons who violate the plan. If, after such notice,

the State fails to act within 30 days, the Secretary ...

may request the Attorney General of the United States to

bring suit to secure abatement and cessation of the pollu-

tion. A court may then assess a fine of up to $10,000 a

day for each day during which the polluter fails to take

corrective action.

116 Cong. Rec. 19218 (1970).

The Senate Committee on Public Works reported:

If the Secretary should find that a State or local pollution

control agency is not acting to abate violations of imple-

mentation plans or to enforce certification requirements,

23a

he would be expected to use the full force of Federal

law. Also, the Secretary should apply the penalty pro-

visions of this section to the maximum extent necessary

to underwrite the strong public demand for abatement

of air pollution and to enforce compliance with the pro-

visions of this Act.

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 20 (1970).

But Senator Muskie, the floor manager of the Senate bill,

inserted this summary of provisions into the record:

Federal enforcement under section 113 leaves the primary

responsibility with the States for enforcing requirements

under implementation plans. The administrator can issue

an abatement order to a polluter or go to court seeking

an injunction only after 30 days’ notice to an individual

polluter, or 30 days after notifying the State that the

Federal Government is generally assuming enforcement

powers in that State because of a widespread failure of

State’s enforcement. This gives States 30 days in which

to take appropriate action themselves.

116 Cong. Rec. 42385 (1970).

The Senate Report, on the other hand, said this:

The new section [section 116, State retention of author-

ity] prohibits and provides for the enforcement of any

violation by any person, as the term is defined in section

302 of the Act, of any applicable implementation plan,

including any emission requirements forming a part of

the plan, or any emission standard or standard of per-

formance, or procedural requirement established under

the Act.

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 57 (1970).

Finally, the House Committee on Interstate and Foreign Com-

merce reported:

If at any time the Secretary determines that any person

is violating the emission standards or that the State or

interstate agency is failing to carry out such plan, the

Secretary is directed to notify the agencies as well as the

violator and specify the time within which such viola-

24a

Enough has been said to demonstrate why we do not

feel compelled by the language of the Act to reach

the serious constitutional issues which the Adminis-

trator’s interpretation raises. Validation of our in-

terpretation, however, requires that we set forth

these issues and, by suggesting our evaluation of

them, reveal the intensity of our desire to avoid con-

fronting them. To this task we now turn.

ITI.

Constitutional Issues

The Administrator contends that his interpreta-

tion encounters no constitutional barriers. Planting

himself on Chief Justice Marshall’s expansive defini-

tion of the power of Congress to regulate commerce

set forth in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1

(1824), he then points to that Chief Justice’s classic

statement of the Necessary and Proper Clause: “Let

the end be legitimate, let it be within the scope of

tion must cease. If the violation does not cease within

such time, the Secretary may request the Attorney Gen-

eral to bring suit on behalf of the United States in the

appropriate U. S. district court to secure abatement of

the pollution. The court may enter such judgment as

the public interest and the equities of the case may re-

quire. Also, the court may assess a penalty of up to

$10,000 for each day of violation after the time specified

by the Secretary for the cessation of the violation. In

determining the amount of such penalty, the court is

directed to take into account the efforts of the defendant

to abate the pollution involved.

H. Rep. No. 91-1146, 91st Cong., 2d Sess. 9-16 (1970).

25a

the constitution, and all means which are appropri-

ate, which are plainly adapted to that end, which are

not prohibited, but consistent with the letter and

spirit of the constitution, are constitutional.” Mc-

Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

On these foundations, the Administrator correctly

asserts, were built the decisions in Wickard v. Fil-

burn, 317 U.S. 111 (1942), Heart of Atlanta Motel

v. United States, 379 U.S. 241 (1964), and Katzen-

bach v. McClung, 379 U.S. 294 (1964), in which

activities, otherwise local in scope and character,

which exert a “substantial effect on interstate com- .

merce” were held subject to regulation under the

Commerce Power.

The emission of air pollutants without regard to

their source, the Administrator asserts, has been

found by Congress to exert the requisite effect on

interstate commerce. This finding, moreover, cannot

be said to be without a “rational basis.” Having the

power to regulate air pollution, the Administrator

continues, Congress, under the Necessary and Proper

Clause, has the power to direct that state officials

either incorporate in the law of their state or ad-

minister and enforce on behalf of the Federal Gov-

ernment those regulations designed to control air

pollution which are properly promulgated by the Ad-

ministrator. The end (abatement of air pollution)

is legitimate; it (the power to regulate air emissions)

is within the scope of the Constitution; and the means

(state administration and enforcement) are appro-

priate, plainly adapted to the end, which is not pro-

26a

hibited, and consistent with the letter and spirit of

the Constitution.

States by reason of their position under the Con-

stitution are not inimune from federal regulation

under the Commerce Power, continues the Adminis-

trator. This has been established, he points out, by

United States v. California, 297 U.S. 175 (1936),

Maryland v. Wirtz, 392 U.S. 183 (1968), Fry v.

United States, USS. (1975). It was put

in Maryland v. Wirtz, supra, as follows:

But while the commerce power has limits, valid

general regulations of commerce do not cease

to be regulations of Commerce because a state

is involved. If a state is engaging in economic

activities that are validly regulated by the Fed-

eral Government when engaged in by private

persons the state too may be forced to conform

its activities to federal regulation.

392 U.S. at 196, 197. This regulation includes the

power to direct that a state either enact such laws

to control air pollution as the Administrator might

require, or administer and enforce such regulations

as the Administration might properly promulgate.

The state, as a builder of roads, maker of traffic laws,

licensor of vehicles, is no more immune from this

form of coercion, says the Administrator, than is a

state-owned railroad exempt from the duty to comply

with Federal safety regulations.** See United States

v. California, 297 U.S. 175 (1936).

** For an exposition of this view by the Administrator, see

38 Fed. Reg. 30632-33 (1973).

27a

The petitioners sharply challenge this reading of

the Commerce Power. Their fundamental contention

is that the Commerce Power does not extend to re-

quiring a state to undertake such governmental tasks

as might be assigned to it by Congress, or its proper

delegate, with respect to activities which admittedly

are within the reach of the Commerce Power. The

Constitution’s Tenth Amendment and Article IV, Sec-

tion 4, which obligates the United States to guaran-

tee to every state a Republican Form of Government,

precludes such an extension of the Commerce Power,

assert the petitioners. Moreover, insofar as the Nec-

essary and Proper Clause is concerned, the petition-

ers contend that the means, compulsory state admin-

istration and enforcement, is inappropriate and in-

consistent with the letter and spirit of the Constitu-

tion.

We do not view these contentions as frivolous.

Moreover, we are certain that neither Maryland v.

Wirtz nor Fry v. United States passed upon the pre-

cise issues raised by the petitioners. These cases

establish that the payment of wages by states to cer-

tain types of state employees is an economic activity

that substantially affects interstate commerce and is

thus subject to those regulations imposed by Con-

gress which were then before the Court. Neither of

these cases holds or even suggests that a state’s exer-

cise of its police power with respect to an economic

activity which affects interstate commerce is itself

an economic activity or “species of commercial inter-

course” subject to regulation by Congress. See Gib-

28a

bons v. Ogden, 72 U.S. (9 Wheat.) 1, 193 (1824).

Nor do we believe that it is proper to equate the

operation by a state of a railroad, an economic ac-

tivity indistinguishable from that of private parties,

with its governance of the use of highways and auto-

mobiles, an exercise of its police power with respect

to commerce.“

The power of states over commerce has no more

been recognized as commerce than has the power of

Congress which is derived from the Commerce

*° We recognize that our views both with regard to the in-

terpretation of the Clean Air Act and the constitutional issues

here discussed differ from those expressed in Pennsylvania v.

Environmental Protection Agency, 500 F.2d 246 (3d Cir.

1974). With regard to the latter issues, we believe with all

deference that the Third Circuit failed to recognize the dif-

ference between a state engaging in commerce, as all states

must under the Supreme Court’s interpretation of the Com-

merce Power, and a state’s regulation of the commerce of

others. This failure is reflected in the following passage, at

261:

This reasoning indicates that the basis for the Court’s

decision in Maryland v. Wirtz, supra, is the principle that

the constitutionality of federal regulation of state ac-

tivities is subject to the same analyses as that of private

activities; viz. the determinative factor is simply whether

they have an impact on interstate commerce. Following

this principle, we believe that the Administrator acted

within the federal commerce power in requiring the Com-

monwealth to enforce its transportation plan.

The conclusion is a non sequitur. The principle deduced from

Maryland v. Wirtz far exceeds its holding in our respectful

opinion. We cannot believe that a careful craftsman like Mr.

Justice Harlan intended in Maryland v. Wirtz to announce a

principle so clearly inconsistent with the history of our federal

structure.

29a

Clause. Each find their source in the Constitution.

Both are of the same family and genus, although

not of the same species. The power of the states

must yield to Federal power in order to effectuate

Federal supremacy, not because the power of the

states is commerce. This distinction between com-

merce and governmental power to regulate commerce,

we suggest, was recognized by Mr. Chief Justice

Hughes when he observed, “The subject of federal

power is ‘commerce’ and not all commerce but com-

merce with foreign nations and among the several

states.” Santa Cruz Co. v. Labor Board, 303 U.S.

453, 466 (1937). We also believe that Mr. Justice

Harlan recognized this distinction in Maryland v.

Wirtz, supra at 196, when he quoted Mr. Chief Jus-

tice Hughes’ observation to demonstrate that the

Commerce Power would not disable the Court from

preventing “the utter destruction of the State as a

sovereign political entity.”

To treat the governance of commerce by the states

as within the plenary reach of the Commerce Power

would in our opinion represent such an abrupt de-

parture from previous constitutional practice as to

make us reluctant to adopt an interpretation of the

Clean Air Act which would force us to confront the

issue. Such treatment, for example, would authorize

Congress to direct the states to regulate any eco-

nomic activity that affects interstate commerce in any

manner Congress sees fit. While such an interpreta-

tion might not enable Congress to direct the enact-

ment or enforcement of a federal probate code, there

30a

is sufficient doubt about even that to illumine the

breadth of the sweeping claim here being made by

the Administrator. To make governance indistin-

guishable from commerce for the purposes of the

Commerce Power cannot be equated to the “unin-

trusive” regulation of economic activities of the states

upheld by the Supreme Court in Maryland v. Wirtz

and Fry v. United States. A Commerce Power so

expanded would reduce the states to puppets of a

ventriloquist Congress. We will not attribute to Con-

gress any such intent unless it is expressly unequi-

vocally. As we have already pointed out, that was

not done in the Clean Air Act.

To emphasize our reluctance to embrace the Ad-

ministrator’s interpretation, we wish to underscore

that he is not merely insisting that the state’s ex-

ercise uf its police power must not improperly bur-

den interstate commerce. See Pike v. Bruce Church,

397 U.S. 137 (1970); Bibb v. Navajo Freight Lines

Inc., 359 U.S. 520 (1959); Southern Pacific Co. v.

Arizona, 325 U.S. 761 (1945). With this proposi-

tion no one differs. Nor is the Administrator merely

insisting that in the area of control of air pollution

federal law has preempted state law. See, e.y.,

Florida Lime and Avocado Growers, Inc. v. Paul,

373 U.S. 132 (1963); Campbell v. Hussey, 368 U.S.

297 (1961); Rice v. Santa Fe Elevator Corp., 331

U.S. 218 (1947); Hines v. Davidowitz, 312 U.S.

52 (1941). The petitioners do not question the right

of Congress to exclude states from participating in

regulating interstate commerce.

ee nelle

3la

Neither of these doctrines, if applied in a conven-

tional manner, supports the Administrator’s position.

To provide such support, they must be distorted al-

most beyond recognition. Preemption must be in-

voked to eliminate a free exercise of state power,

and the doctrine of unconstitutional burdens must

be read to proscribe all state activities, including

abandonment to the Federal Government of all regu-

latory responsibility, other than obedience to the

Administrator’s will. We are aware of no such ver-

sion of these doctrines.

We hasten to point out that our reluctance to

accept the Administrator’s interpretation of the Act

is not an effort at this late date to ignore Chief

Justice Marshall’s triumph over Mr. Jefferson with

regard to the power of the Federal government vis-

a-vis the states. Our concern, as we believe was

Chief Justice Marshall’s, is to preserve and protect

a strong government of the United States and viable

governments of the states. As we see it, our in-

terpretation of the Act is more compatible with these

objectives than that of the Administrator.

Our interpretation, moreover, does not deprive the

Administrator of power to regulate air pollution in

the manner provided by the Act. We merely hold

that under the Act a state may decline, without be-

coming liable to sanctions, to undertake a program

of control suggested by the Administrator; a state,

however, may not interfere with such regulation of

the sources of pollution as the Administrator pur-

suant to the Act undertakes. Our interpretation is

32a

in no way inconsistent with the recognition that Con-

gress has the power to authorize the Administrator

to obtain the consent of a reluctant state by con-

ditioning certain federal expenditures within that

state on the granting of such consent. See Steward

Machine Co. v. Davis, 301 U.S. 548 (1937). Nor

should our constitutional concerns be interpreted as

disfavoring a determination by Congress that the

states may regulate certain aspects of commerce

which have an effect on interstate commerce only in

certain specified ways if a state chooses to regulate

that aspect of commerce at all. We are, however,

adopting an interpretation which makes it unneces-

sary for us to face the issue of whether Congress

can prevent a state’s withdrawal from the field.

Confrontation with this issue would require us to

consider the effect such a power would have on the

structure of the United States. Its existence, we sus-

pect, would enable Congress to control ever increas-

ing portions of the states’ budgets. The pattern of

expenditures by states would increasingly become a

Congressional responsibility. The maintenance of tax

revenues at the state level would be deterred by the

realization of the people of each state that their con-

trol of the expenditures of such revenues increasingly

was passing from their hands. Their likely responses

would be, first, to demand increased federal subven-

tions, whether in the form of revenue-sharing or oth-

erwise, and second, to earmark state tax receipts for

purposes over which the state has complete control.

Neither response is consistent with either healthy

federalism or sound public finance.

83a

This severance of spending from taxing at the

state level in our view does suggest that the peti-

tioners are not irresponsible when they strongly sug-

gest that the Republican Form of Government of the

states would be seriously impaired. The power of

each voter of each state over state expenditures, to

the extent not supplied by the Federal government,

would be less than his power over state taxation.

Voters of other states, acting through their repre-

sentatives in Congress would dilute the strength of

the voters of the states whose revenues would be

spent as Congress directs. A structure in which all

power on the part of states to spend was vested in

Congress while the power and obligation to tax re-

mained with the states would encourage few even

casually acquainted with the writings of Montesquieu

and the Federalist papers to assert that the states

enjoyed a Republican Form of Government. Nor

could such an assertion be made were all taxation

and expenditure responsibility to reside in the Fed-

eral Government. The limited severance of spending

from taxing which the Administrator’s interpreta-

tion of the Act and the Constitution would permit,

therefore, should not be viewed as unrelated to the

Guarantee Clause.

We do not consider our hesitancy to embrace the

Administrator’s interpretation as being in any way

inconsistent with the obligation of the state courts,

recognized by Mr. Justice Story in Martin v. Hunter's

Lessee, 14 U.S. (1 Wheat.) 304 (1816), to enforce

and recognize the supremacy of valid federal law as

34a

interpreted by the Supreme Court. As Mr. Justice

Story points out, this obligation was understood by

Founding Fathers and is imbedded in the Constitu-

tion. No such plain command exists in the Constitu-

tion to support the Administrator’s reading of the

Commerce Power. Our constitutional practice has

been quite contrary to his reading. In this regard,

we find particularly revealing the following words

of the late Professor Henry M. Hart, Jr., written

as recently as 1954:

Federal law often says to the states, “Don’t

do any of these things,” leaving outside the scope

of its prohibition a wide range of alternative

courses of action. But it is illuminating to ob-

serve how rarely it says, “Do this thing,” leaving

no choice but to go ahead and do it. The Fed-

eralist papers bear ample witness to the Framers’

awareness of the delicacy, and the difficulties of

enforcement, of affirmative mandates from a

federal government to the governments of the

member states.

The Constitution counts upon the necessary

participation of the states in the electoral process

not by direct command but by the incentive of

not losing the opportunity of participation. In

similar fashion Congress now elicits desired af-

firmative performances from the states by at-

taching them as conditions to the receipt of

federal grants-in-aid. If we search the Con-

stitution for provisions which have the appear-

ance of affirmative requirements, two of the

most striking are those which call for the sur-

render of fugitive slaves and fugitives from jus-

Aah Pen. weet

35a

tice. But the first was disembowelled by the

tour de force of Prigg v. Pennsylvania, and the

second was flatly held, in Kentucky v. Denison,

to be judicially unenforceable. “And we think

it clear,” said Chief Justice Taney in the latter

case, “that the Federal Government, under the

Constitution, has no power to impose on a State

officer, as such, any duty whatever, and compel

him to perform it.” Taney’s statement can stand

today, if we except from it certain primary

duties of state judges and occasional remedial

duties of other state officers. Both exceptions,

it will be observed, involve enforcement through

the orderly and ameliorating forms of the ju-

dicial process. In any event, experience with

the exceptions does little to bring into question

the principle of the rule.

The judges of the state courts are not only

sworn to support the Constitution, like other

state officers, but are bound also to observance

of federal law by the special direction of the

supremacy clause. This may on occasion require

them, specifically and affirmatively, to enter a

particular judgment, as in complying, for ex-

ample, with the injunction of the full faith and

credit clause. State courts ordinarily fulfil such

obligations without question. But Congress nev-

ertheless has recognized the possibility of con-

flict and authorized the Supreme Court, in its

discretion, to avoid it by entering judgment it-

self. The imbroglio of Martin v. Hunter’s Lessee

suggests the wisdom of making this alternative

available.

Judicial mandates to non-judicial state officers

to enforce either primary or remedial duties re-

36a

quiring the performance of affirmative acts are

relatively infrequent. Lower federal courts may

prohibit state officers, in their individual capac-

ity, from taking action under color of office in

violation of law. But an action to compel the

performance of an affirmative act would en-

counter, ordinarily, the bar of the Eleventh

Amendment. Whether a writ of mandamus to

compel performance of a ministerial duty would

be regarded as an action against the state is not

altogether clear. But it is significant that a

practice of issuing such writs to state officers

has never become established.

Hart, The Relations Between State and Federal Law,

54 CoLum. L. R. 515-16 (1954) (footnotes omitted).

Finally, we are encouraged by the Supreme Court’s

footnote 7 in Fry v. United States. In describing the

Tenth Amendment, it was said in the footnote:

The [Tenth] Amendment expressly declares the

constitutional policy that Congress may not ex-

ercise power in a fashion that impairs the States’

integrity or their ability to function effectively

in a federal system.

US. at n.7. Moreover, the Supreme Court

in Maryland v. Wirtz observed:

The Court has ample power to prevent what the

appellants purport to fear, “the utter destruc-

tion of the State as a sovereign political entity.”

392 U.S. at 196.

It is our task, where possible, to avoid a statutory

interpretation which would require us to decide

whether the extensive control of state expenditures,

which the Administrator’s view would permit, does

37a

either threaten “the utter destruction of the State

as a sovereign political entity,” or “impair the States’

integrity or their ability te function effectively in a

federal system.” As we have made abundantly clear,

we are sufficiently apprehensive about the ability of

states “to function effectively in a federal system”’

under the Administrator’s interpretation to justify

our strong preference for an interpretation that puts

our concerns at rest. In addition, we reject as a

means of allaying our fears the assumption that the

prospect of “utter destruction of the State as a sov-

ereign political entity” is confronted only when Con-

gress asserts the power to regulate all aspects of

state and local government. Only the mischievous

would contend that not until then is the issue ripe.

All efforts by the Administrator to impose sanc-

tions on the State of California are stayed to the

extent indicated in this opinion. To that extent the

petitions for review are granted.

Pursuant to Rule 54(b), FED. R. Civ. P., to the

extent that there remain unresolved claims presented

by the petitioners, the disposition of the issues set

forth herein shall be treated as a final judgment

with respect to fewer than all the claims presented

by the petitioners and we expressly determine that

there is no just reason for delay in entering such

final judgment wtih respect to the claims of which

this opinion disposes.

PETITIONS FOR REVIEW GRANTED IN

PART.

38a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 73-3306, 73-3305, 73-3307

EDMUND G. BROWN, JR., GOVERNOR OF THE

STATE OF CALIFORNIA, ET AL., PETITIONERS

VU.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY

& COLLEGES, ETC., PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

CALIFORNIA AIR RESOURCES BOARD, ET AL.,

PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

JUDGMENT

A petition for review from the United States En-

vironmental Protection Agency.

39a

This cause came on to be heard on the transcript

of the record of the United States Environmental

Protection Agency and was duly submitted. On con-

sideration whereof IT IS NOW HERE ORDERED

AND ADJUDGED by this Court that, pursuant to

Rule 54(b), Federal Rules of Civil Procedure, to the

extent that there remain unresolved claims presented

by the petitioners the disposition of the issues set

forth herein shall be treated as a final judgment with

respect to fewer than all the claims presented by the

petitioners and we expressly determine that there is

no just reason for delay in entering such final judg-

ment with respect to the claims of which this opinion

disposes.

Petitions for review granted in part.

Filed and entered August 15, 1975.

40a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 73-3577

STATE OF ARIZONA, ET AL., PETITIONERS,

vs.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.

No. 73-3588

BROADWAY-HALE STORES, INC., ET AL., PETITIONERS,

vs.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.

No. 74-1001

PROPER ENVIRONMENTAL PLANNING, INC.,

PETITIONER,

v8.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.

7 ore eee: aoe eee

nemebaned on:

4la

No. 74-1002

SEARS, ROEBUCK AND COMPANY, PETITIONER,

v8.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.

No. 74-1009

SAFEWAY STORES, INC., PETITIONER,

vs.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.

No. 74-1013

HOMART DEVELOPMENT CO., PETITIONER,

vs.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.

OPINION

[September 8, 1975]

On Petition for Review of Orders and Regulations

of the Environmental Protection Agency

42a

Before: ELY, TRASK and SNEED, Circuit Judges.

SNEED, Circuit Jud e:

The Environmenta: Protection Agency has indefi-

nitely suspended those portions of the Maintenance

of National Standards regulation, 40 C.F.R. § 52.22

(1974), which cover parking-related facilities, and

the Management of Parking Supply regulation 40

C.F.R. § 52.139 (1974), in its entirety. 40 Fed. Reg.

28064, 29713 (1975). Further, the EPA indicated

in oral argument of Brown v. Environmental Protec-

tion Agency, F.2d ——- (9th Cir. 1975), that

the latter suspension was equivalent to a revocation

of the regulation. Therefore, for purposes of filing a

new petition for review, lifting the suspension or

amending the regulation would be the same as a pro-

mulgation of the regulation anew. A statement to

similar effect is incorporated by reference in the

Supplemental Submission filed by EPA in these cases

on July 21, 1975. Under such circumstances, new

petitions for review may be filed within 30 days of

such promulgation, pursvant to section 307 of the

' Clean Air Act, 42 U.S.C.A. § 1857h-5 (West Supp.

1975).

In view of these developments, the Court finds that

so much of the petitioners’ dispute with the EPA as

pertained to the Management of Parking Supply

regulation, supra, or those portions of the Mainte-

nance of National Standards regulation, swpra, which

cover parking-related facilities, is moot, and that any

future dispute is not before us. Thorpe v. Housing

Ae see ete meh Oe Aloe

43a

Authority, 393 U.S. 268, 281-84 (1969) ; Abbott Lab-

oratories v. Gardner, 387 U.S. 136, 148 (1967);

Aetna Life Insurance Co. v. Haworth, 300 U.S. 227,

239-41 (1937); Vulcanized Rubber & Plastics Co. v.

Federal Trade Comm’n, 258 F.2d 684 (D.C. Cir.

1958). Accordingly, so much of the petitions of the

parties listed above as is concerned with the regula-

tions herein referenced is dismissed without preju-

dice to the petitioners should the Administrator lift

his suspension of 40 C.F.R. § 52.22 or § 52.139

(1974) or promulgate new regulations pertaining to

the same general subject matter.

The petition of the State of Arizona also raises

issues we dealt with in Brown v. Environmental

Protection Agency, supra. We dispose of that por-

tion of the petition as is directed to these issues in

the same manner as was done in that case. That is,

we hold that the Clean Air Act does not authorize

the imposition of sanctions against the State of Ari-

zona or its officials for failure to comply with the

directives set forth in 40 C.F.R. §$§ 52.22, 52.129,

52.132, 52.133, 52.137, 52.1388 and 52.140 (1974).

The basis for our decision is the same in all respects

as in Brown v. Environmental Protection Agency,

supra. Therefore, there exists no reason to repeat

them here.

In view of these actions, each of the above-listed

parties is directed to inform this Court not later

than 21 days following the date of this decision

which, if any, of the other issues set forth in their

petitions for review they continue to desire this Court

44a

to review. Pursuant to Rule 54(b), Fen. R. Civ. P.,

to the extent that there remain unresolved claims

presented by the petitioners, the disposition of the

issues set forth herein shall be treated as a final

judgment with respect to fewer than all the claims

presented by the petitioners and we expressly deter-

mine that there is no just reason for celay in enter-

ing such final judgment with respect to the claims

of which this opinion disposes.

GRANTED IN PART AND DISMISSED WITH-

OUT PREJUDICE IN PART.

a ee ee

45a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 73-3577, 73-3588, 74-1001, 74-1002,

74-1009 and 74-1013

STATE OF ARIZONA, ET AL., PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

BROADWAY-HALE STORES, INC., ET AL., PETITIONERS

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

PROPER ENVIRONMENT PLANNING, INC., PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

SEARS, ROEBUCK AND COMPANY, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

SAFEWAY STORES, INC., PETITIONER

— ®

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

HOMART DEVELOPMENT CO., PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

46a

JUDGMENT

A petition for review from the United States En-

vironmental Protection Agency.

This cause came on to be heard on the transcript

of the record of the United States Environmental

Protection Agency and was duly submitted. On con-

sideration whereof IT IS NOW HERE ORDERED

AND ADJUDGED by this Court that, pursuant to

Rule 54(b), Federal Rules of Civil Procedure, to the

extent that there remain unresolved claims presented

by the petitioners the disposition of the issues set

forth herein shall be treated as a final judgment with

respect to fewer than all the claims presented by the

petitioners and we expressly determine that there is

no just reason for delay in entering such final judg-

ment with respect to the claim of which this opinion

disposes.

Petitions granted in part and dismissed without

prejudice in part.

Filed and entered September 8, 1975.

ee en ee

47a

APPENDIX E

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

I. The Constitution of the United States provides

in pertinent part:

Article I, Section 8:

The Congress shall have Power * * *

* * * * *

To regulate Commerce * * * among the

several States * * *

To make all Laws which shall be neces-

sary and proper for carrying into Execu-

tion the foregoing Powers, and all other

Powers vested by this Constitution in the

Government of the United States, or in any

Department or Officer thereof.

Article VI:

* « o * *

This Constitution, and the laws of the

United States which shall be made in Pur-

suance thereof * * * shall be the supreme

Law of the Land * * *.

Tenth Amendment:

The powers not delegated to the United

States by the Constitution, nor prohibited

by it to the States, are reserved to the

States respectively, or to the people.

II. Sections 101, 107, 109, 110, 113 and 302(e) of

the Clean Air Act of 1967, 81 Stat. 485, as amended

48a

by the Clean Air Act Amendments of 1970, 84 Stat.

1676, 42 U.S.C. 1857 et seg., as amended by Section

302, 85 Stat. 464 and Section 4 of the Energy Supply

and Environmental Coordination Act of 1974, Pub.

L. No. 93-319, 88 Stat. 256, provide in relevant part:

Section 101 (42 U.S.C. 1857)

Congressional findings; purposes of subchapter.

(a) The Congress finds—

(1) that the predominant part of the Na-

tion’s population is located in its rapidly expand-

ing metropolitan and other urban areas, which

generally cross the boundary lines of local juris-

dictions and often extend into two or more

States;

(2) that the growth in the amount and com-

plexity of air pollution brought about by urbani-

zation, industrial development, and the increas-

ing use of motor vehicles, has resulted in mount-

ing dangers to the public health and welfare,

including injury to agricultural crops and live-

stock, damage to and the deterioration of prop-

erty, and hazards to air and ground transporta-

tion;

(3) that the prevention and control of air

pollution at its source is the primary responsi-

bility of States and local governments; and

(4) that Federal financial assistance and

leadership is essential for the development of

cooperative Federal, State, regional, and local

programs to prevent and control air pollution.

(b) The purposes of this subchapter are—

(1) to protect and enhance the quality of the

Nation’s air resources so as to promote the public

49a

health and welfare and the productive capacity

of its population;

(2) to initiate and accelerate a national re-

search and development program to achieve the

prevention and control of air pollution;

(3) to provide technical and financial assist-

ance to State and local governments in connec-

tion with the development and execution of their

air pollution prevention and control programs;

and

(4) to encourage and assist the development

and operation of regional air pollution control

programs.

Section 107 (42 U.S.C. 1857c-2)

Air quality control regions.

(a) Responsibility of State for air quality; sub-

mission of implementation plan.

Each State shall have the primary responsi-

bility for assuring air quality within the en-

tire geographic area comprising such State by

submitting an implementation plan for such

State which will specify the manner in which

national primary and secondary ambient air

quality standards will be achieved and main-

tained within each air quality control region in

such State.

* * * * ”

Section 109 (42 U.S.C. 1857c-4)

National primary and secondary ambient air quality

standards; promulgation; procedure.

(a)(1) The Administrator—

(A) within 30 days after December 31, 1970,

shall publish proposed regulations prescribing a

national primary ambient air quality standard

50a

and a national secondary ambient air quality

standard for each air pollutant for which air

quality criteria have been issued prior to such

date; and

(B) after a reasonable time for interested

persons to submit written comments thereon (but

no later than 90 days after the initial publica-

tion of such proposed standards) shall by reg-

ulation promulgate such proposed national pri-

mary and secondary ambient air quality stand-

ards with such modifications as he deems ap-

propriate.

(2) With respect to any air pollutant for which

air quality criteria are issued after December 31,

1970, the Administrator shall publish, simultaneously

with the issuance of such criteria and information,

proposed national primary and secondary ambient

air quality standards for any such pollutant. The

procedure provided for in paragraph (1)(B) of this

subsection shall apply to the promulgation of such

standards.

(b)(1) National primary ambient air quality

standards, prescribed under subsection (a) of this

section shall be ambient air quality standards the

attainment and maintenance of which in the judg-

ment of the Administrator, based on such criteria

and allowing an adequate margin of safety, are req-

uisite to protect the public health. Such primary

standards may be revised in the same manner as

promulgated.

(2) Any national secondary ambient air quality

standard prescribed under subsection (a) of this sec-

5la

tion shall specify a level of air quality the attainment

and maintenance of which in the judgment of the

Administrator, based on such criteria, is requisite to

protect the public welfare from any known or antici-

pated adverse effects associated with the presence of

such air pollutant in the ambient air. Such secondary

standards may be revised in the same manner as pro-

mulgated.

Section 110 (42 U.S.C. 1857¢-5)

State implementation plans for national primary and

secondary ambient air quality standards.

(a)(1) Each State shall, after reasonable notice

and public hearings, adopt and submit to the Ad-

ministrator, within nine months after the promulga-

tion of a national primary ambient air quality stand-

ard (or any revision thereof) under section 109 for

any air pollutant, a plan which provides for imple-

mentation, maintenance, and enforcement of such

primary standard in each air quality control region

(or portion thereof) within such State. In addition,

such State shall adopt and submit to the Adminis-

trator (either as a part of a plan submitted under

the preceding sentence or separately) within nine

months after the promulgation of a national ambient

air quality secondary standard (or revision there-

of), a plan which provides for iniplementation, main-

tenance, and enforcement of such secondary standard

in each air quality control region (or portion there-

of) within such State. Unless a separate public hear-

ing is provided, each State shall consider its plan

52a

implementing such secondary standard at the hear-

ing required by the first sentence of this paragraph.

(2) The Administrator shall, within four months

after the date required for submission of a plan un-

der paragraph (1), approve or disapprove such plan

for each portion thereof. The Administrator shall

approve such plan, or any portion thereof, if he de-

termines that it was adopted after reasonable notice

and hearing and that—

(A) (i) in the case of a plan implementing

a national primary ambient air quality stand-

ard, it provides for the attainment of such pri-

mary standard as expeditiously as practicable

but (subject to subsection (e)) in no case later

than three years from the date of approval of

such plan (or any revision thereof to take ac-

count of a revised primary standard) ; and, (ii)

in the case of a plan implementing a national

secondary ambient air quality standard, it speci-

fies a reasonable time at which such secondary

standard will be attained;

(B) it includes emission limitations, sched-

‘ules, and timetables for compliance with such

limitations, and such other measures as may be

necessary to insure attainment and maintenance

of such primary or secondary standard, includ-

ing, but not limited to, land-use and transporta-

tion controls;

and operation of appropriate devices, methods,

systems, and procedures necessary to (i) moni-

tor, compile, and analyze data on ambient air

quality and, (ii) upon request, make such data

available to the Administrator ;

53a

(D) it includes a procedure, meeting the re-

quirements of paragraph (4), for review (prior

to construction or modification) of the location

of new sources to which a standard of perform-

ance will apply;

(E) it contains adequate provisions for in-

tergovernmental covperation, including measures

necessary to insure that emissions of air pollu-

tants from sources located in any air quality

control region will not interfere with the attain-

ment or maintenance of such primary or second-

ary standard in any portion of such region out-

side of such State or in any other air quality

control region;

(F) it provides (i) necessary assurances

that the State will have adequate personnel,

funding, and authority to carry out such imple-

mentation plan; (ii) requirements for installa-

tion of equipment by owners or operators of sta-

tionary sources to monitor emissions from such

sources; (iii) for periodic reports on the nature

and amounts of such emissions; (iv) that such

reports shall be correlated by the State agency

with any emission limitations or standards es-

tablished pursuant to this Act, which reports

shall be available at reasonable times for public

inspection; and (v) for authority comparable to

that in section 303, and adequate contingency

plans to implement such authority;

(G) it provides, to the extent necessary and

practicable, for periodic inspection and testing

of motor vehicles to enforce compliance with ap-

plicable emission standards; and

(H) it provides for revision, after public

hearings, of such plan (i) from time to time as

54a

may be necessary to take account of revisions

of such national primary or secondary ambient

air quality standard or the availability of im-

proved or more expeditious methods of achiev-

ing such primary or secondary standard; or (ii)

whenever the Administrator finds on the basis

of information available to him that the plan is

substantially inadequate to achieve the national

ambient air quality primary or secondary stand-

ard which it implements.

(3)(A) The Administrator shall approve any re-

vision of an implementation plan applicable to an

air quality control region if he determines that it

meets the requirements of paragraph (2) and has

been adopted by the State after reasonable notice and

public hearings.

(B) As soon as practicable, the Administrator

shall, consistent with the purposes of this Act and

the Energy Supply and Environmental Coordination

Act of 1974, review each State’s applicable implemen-

tation plans and report to the State on whether such

plans can be revised in relation to fuel burning sta-

tionary sources (or persons supplying fuel to such

sources) without interfering with the attainment and

maintenance of any national ambient air quality

standard within the period permitted in this sec-

tion. If the Administrator determines that any such

plan can be revised, he shall notify the State that

a plan revision may be submitted by the State. Any

plan revision which is submitted by the State shall,

after public notice and opportunity for public hear-

ing, be approved by the Administrator if the re-

55a

vision relates only to fuel burning stationary sources

(or persons supplying fuel to such sources), and the

plan as revised complies with paragraph (2) of this

subsection. The Administrator shall approve or dis-

approve any revision no later than three months

after its submission.

(4) The procedure referred to in paragraph (2)

(D) for review, prior to construction or modification,

of the location of new sources shall (A) provide for

adequate authority to prevent the construction or

modification of any new source to which a standard

of performance under section 111 will apply at any

location which the State determines will prevent the

attainment or maintenance within any air quality

control region (or portion thereof) within such State

of a national ambient air quality primary or second-

ary standard, and (B) require that prior to com-

mencing construction or modification of any such

source, the owner or operator thereof shall submit to

such State such information as may be necessary to

permit the State to make a determination under

clause (A).

(b) The Administrator may, wherever he de-

termines necessary, extend the period for submis-

sion of any plan or portion thereof which imple-

ments a national secondary ambient air quality stand-

ard for a period not to exceed 18 months from the

date otherwise required for submission of such plan.

(c)(1) The Administrator shall, after considera-

tion of any State hearing record, promptly prepare

56a

and publish proposed regulations setting forth an im-

plementation plan, or portion thereof, for a State if—

(A) The State fails to submit an implemen-

tation plan for any national ambient air quality

primary or secondary standard within the time

prescribed,

(B) the plan, or any portion thereof, sub-

mitted for such State is determined by the Ad-

ministrator not to be in accordance with the re-

quirements of this section, or

tification by the Administrator or such longer

period as he may prescribe, to revise an imple-

mentation plan as required pursuant to a provi-

sion of its plan referred to in subsection (a) (2)

(H).

If such State held no public hearing associated with

respect to such plan (or revision thereof), the Ad-

ministrator shall provide opportunity for such hear-

ing within such State on any proposed regulation.

The Administrator shall, within six months after the

date required for submission of such plan (or re-

vision thereof), promulgate any such regulations un-

less, prior to such promulgation, such State has

. adopted and submitted a plan (or revision) which the

Administrator determines to be in accordance with

the requirements of this section.

(2)(A) The Administrator shall conduct a study

and shall submit a report to the Committee on Inter-

state and Foreign Commerce of the United States

House of Representatives and the Committee on Pub-

lic Works of the United States Senate not later than

57a

three months after date of enactment of this para-

graph on the necessity of parking surcharge, manage-

ment of parking supply, and preferential bus/car-

pool lane regulations as part of the applicable imple-

mentation plans required under this section to achieve

and maintain national primary ambient air quality

standards. The study shall include an assessment of

the economic impact of such regulations, considera-

tion of alternative means of reducing total vehicle

miles traveled, and an assessment of the impact of

such regulations on other Federal and State programs

dealing with energy or transportation. In the course

of such study, the Administrator shall consult with

other Federal officials including, but not limited to,

the Secretary of Transportation, the Federal Energy

Administrator, and the Chairman of the Council on

Environmental Quality.

(B) No parking surcharge regulation may be re-

quired by the Administrator under paragraph (1)

of this subsection as a part of an applicable imple-

mentation plan. All parking surcharge regulations

previously required by the Administrator shall be

void upon the date of enactment of this subparagraph.

This subparagraph shall not prevent the Adminis-

trator from approving parking surcharges if they

are adopted and submitted by a State ds part of an

applicable implementation plan. The Administrator

may not condition approval of any implementation

plan submitted by a State on such plan’s including a

parking surcharge regulation.

58a

until January 1, 1975, the effective date or applica-

bility of any regulations for the management of

parking supply or any requirement that such regula-

tions be a part of an applicable implementation plan

approved or promulgated under this section. The ex-

ercise of the authority under this subparagraph shall

not prevent the Administrator from approving such

regulations if they are adopted and submitted by a

State as part of an applicable implementation plan.

If the Administrator exercises the authority under

this subparagraph, regulations requiring a review or

analysis of the impact of proposed parking facilities

before construction which take effect on or after

January 1, 1975, shall not apply to parking facilities

on which construction has been initiated before Janu-

ary 1, 1975.

(D) For purposes of this paragraph—

(i) The term ‘parking surcharge regulation’

means a regulation imposing or requiring the im-

position of any tax, surcharge, fee, or other charge

on parking spaces, or any other area used for the

temporary storage of motor vehicles.

(ii) The term ‘management of parking sup-

ply’ shall include any requirement providing that any

new facility containing a given number of parking

spaces shall receive a permit or other prior approval,

issuance of which is to be conditioned on air quality

considerations.

(iii) The term ‘preferential bus/carpool lane’

shall include any requirement for the setting aside

of one or more lanes of a street or highway on a

59a

permanent or temporary basis for the exclusive use

of buses or carpools, or both.

(E) No standard, plan, or requirement, relating

to management of parking supply or preferential

bus/carpool lanes shall be promulgated after the date

of enactment of this paragraph by the Administra-

tor pursuant to this section, unless such promulgation

has been subjected to at least one public hearing

which has been held in the area affected and for

which reasonable notice has been given in such area.

If substantial changes are made following public

hearings, one or more additional hearings shall be

held in such area after such notice.

(d) For purposes of this Act, an applicable im-

plementation plan is the implementation plan, or

most recent revision thereof, which has been approved

under subsection (a) or promulgated under subsec-

tion (c) and which implements a national primary or

secondary ambient air quality standard in a State.

(e)(1) Upon application of a Governor of a

State at the time of submission of any plan imple-

menting a national ambient air quality primary

standard, the Administrator may (subject to para-

graph (2)) extend the three-year period referred to

in subsection (a)(2)(A)(i) for not more than two

years for an air quality control region if after re-

view of such plan the Administrator determines

that—

(A) one or more emission sources (or classes

of moving sources) are unable to comply with

the requirements of such plan which implement

60a

such primary standard because the necessary

technology or other alternatives are not available

or will not be available soon enough to permit

compliance within such three-year period, and

(B) the State has considered and applied as

a part of its plan reasonably available alterna-

tive means of attaining such primary standard

and has justifiably concluded that attainment of

such primary standard within the three years

cannot be achieved.

(2) The Administrator may grant an extension

under paragraph (1) only if he determines that the

State plan provides for—

(A) application of the requirements of the

plan which implement such primary standard to

all emission sources in such region other than

the sources (or classes) described in paragraph

(1)(A) within the three-year period, and

(B) such interim measures of control of the

sources (or classes) described in paragraph (1)

(A) as the Administrator determines to be rea-

sonable under the circumstances.

(f)(1) Prior to the date on which any stationary

source or class of moving sources is required to com-

ply with any requirement of an applicable implemen-

tation plan the Governor of the State to which such

plan applies may apply to the Administrator to post-

pone the applicability of such requirement to such

source (or class) for not more than one year. If

the Administrator determines that—

(A) good faith efforts have been made to

comply with such requirement before such date,

6la

(B) such source (or class) is unable to com-

ply with such requirement because the necessary

technology or other alternative methods of con-

trol are not available or have not been available

for a sufficient period of time,

cedures and interim control measures have re-

duced or will reduce the impact of such source

on public health, and

(D) the continued operation of such source

is essential to national security or to the public

health or welfare,

then the Administrator shall grant a postponement of

such requirement.

(2)(A) Any determination under paragraph (1)

shall (i) be made on the record after notice to inter-

ested persons and opportunity for hearing, (ii) be

based upon a fair evaluation of the entire record at

such hearing, and (iii) include a statement setting

forth in detail the findings and conclusions upon

which the determination is based.

(B) Any determination made pursuant to this

paragraph shall be subject to judicial review by the

United States court of appeals for the circuit which

includes such State upon the filing in such court

within 30 days from the date of such decision of a

petition by any interested person praying that the

decision be modified or set aside in whole or in part.

A copy of the petition shall forthwith be sent by

registered or certified mail to the Administrator and

thereupon the Administrator shall certify and file in

such court the record upon which the final decision

62a

complained of was issued, as provided in section

2112 of title 28, United States Code. Upon the filing

of such petition the court shall have jurisdiction to

affirm or set aside the determination complained of

in whole or in part. The findings of the Administra-

tor with respect to questions of fact (including each

determination made under subparagraphs (A), (B),

(C), and (D), of paragraph (1)) shall be sustained

if based upon a fair evaluation of the entire record

at such hearing.

graph shall take precedence over all the other causes

of action on the docket and shall be assigned for

hearing and decision at the earliest practicable date

and expedited in every way.

(D) Section 307 (a) (relating to subpenas) shall

be applicable to any proceeding under this subsection.

. * « * *

Section 113 (42 U.S.C. 1857c-8)

Federal enforcement procedures.

(a)(1) Whenever, on the basis of any informa-

tion available to him, the Administrator finds that

any person is in violation of any requirement of an

applicable implementation plan, the Administrator

shall notify the person in violation of the plan and

the State in which the plan applies of such finding.

If such violation extends beyond the 30th day after

the date of the Administrator’s notification, the Ad-

ministrator may issue an order requiring such per-

son to comply with the requirements of such plan or

63a

he may bring a civil action in accordance with sub-

section (b).

(2) Whenever, on the basis of information avail-

able to him, the Administrator finds that violations of

an applicable implementation plan are so widespread

that such violations appear to result from a failure

of the State in which the plan applies to enforce the

plan effectively, he shall so notify the State. If the

Administrator finds such failure extends beyond the

30th day after such notice, he shall give public no-

tice of such finding. During the period beginning

with such public notice and ending when such State

satisfies the Administrator that it will enforce such

plan (hereafter referred to in this section as ‘period

of Federally assumed enforcement’), the Adminis-

trator may enforce any requirement of such plan

with respect to any person—

(A) by issuing an order to comply with such

requirement, or

(B) by bringing a civil action under subsec-

tion (b).

(3) Whenever, on the basis of any information

available to him, the Administrator finds that any

person is in violation of section 111(e) (relating to

new source performance standards), 112(c) (re-

lating to standards for hazardous emissions), or 119

(g) (relating to energy-related authorities), or is in

violation of any requirement of section 114 (relating

to inspections, etc.), he may issue an order requir-

ing such person to comply with such section or re-

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quirement, or he may bring a civil action in accord-

ance with subsection(b).

(4) An order issued under this subsection (other

than an order relating to a violation of section 112)

shall not take effect until the person to whom it is

issued has had an opportunity to confer with the Ad-

ministrator concerning the alleged violation. A copy

of any order issued under this subse.. »n shall be

sent to the State air pollution control agency of any

State in which the violation occurs. Any order issued

under this subsection shall state with reasonable spe-

cificity the nature of the violation, specify a time for

compliance which the Administrator determines is

reasonable, taking into account the seriousness of

the violation and any good faith efforts to comply

with applicable requirements. In any case in which

an order under this subsection (or notice to a viola-

tor under paragraph (1)) is issued to a corporation,

a copy of such order (or notice) shall be issued to

appropriate corporate officers.

(b) The Administrator may commence a civil ac-

tion for appropriate relief, including a permanent or

temporary injunction, whenever any person—

(1) violates or fails or refuses to comply

with any order issued under subsection (a); or

(2) violates any requirement of an appli-

cable implementation plan (A) during any pe-

riod of Federally assumed enforcement, or (B)

more than 30 days after having been notified by

the Administrator under subsection (a)(1) of

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a finding that such person is violating such re-

quirement; or

(3) violates section 111(e), 112(c), or 119

(g); or

(4) fails or refuses to comply with any re-

quirement of section 114.

Any action under this subsection may be brought in

the district court of the United States for the district

in which the defendant is located or resides or is do-

ing business, and such court shall have jurisdiction to

restrain such violation and toe require compliance.

Notice of the commencement of such action shall be

given to the appropriate State air pollution control

agency.

(c)(1) Any person who knowingly—

(A) violates any requirement of an appli-

cable implementation plan (i) during any pe-

riod of Federally assumed enforcement, or (ii)

more than 30 days after having been notified by

the Administrator under subsettion (a) (1) that

such person is violating such requirement, or

(B) violates or fails or refuses to comply

with any order issued by the Administrator un-

der subsection (a), or

or section 119(g) shall be punished by a fine of

not more than $25,000 per day of violation, or

by imprisonment for not more than one year, or

by both. If the conviction is for a violation eom-

mitted after the first conviction of such person

under this paragraph, punishment shall be by a

fine of not more than $50,000 per day of viola-

66a

tion, or by imprisonment for not more than twu

years, or by both.

(2) Any person who knowingly makes any false

statement, representation, or certification in any ap-

plication, record, report, plan, or other document filed

or required to be maintained under this Act or who

falsifies, tampers with, or knowingly renders inac-

curate any monitoring device or method required to

be maintained under this Act, shall upon conviction,

be punished by a fine of not more than $10,000, or

by imprisonment for not more than six months, or

by both. ;

Section 302 (42 U.S.C. 1857h)

Definitions.

When used in this chapter—

(a) The term “Administrator” means the Admin-

istrator of the Environmental Protection Agency.

* * ® * *

(d) The term “State” means a State, the District

of Columbia, the Commonwealth of Puerto Rico, the

Virgin Islands, Guam, and American Samoa.

(e) The term “person” includes an individual,

corporation, partnership, association, State, munici-

pality, and political subdivision of a State.

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(f) The term “municipality” means a city, town,

borough, county, parish, district, or other public body

created by or pursuant to State law.

(h) All language referring to effects on welfare

includes, but is not limited to, effects on soils, water,

crops, vegetation, manmade materials, animals, wild-

life, weather, visibility, and climate, damage to and

deterioration of property, and hazards to transpor-

tation, as well as effects on economic values and on

personal comfort and well-being.

III. 40 C.F.R. Part 52 provides in pertinent part:

§ 52.23 (as amended Sept. 18, 1974, 39 Fed. Reg. 33512)

Violation and Enforcement.

Failure to comply with any provisions of this

part, or with any approved regulatory provision

of a state implementation plan, or with any per-

mit condition or permit denial issued pursuant

to approved or promulgated regulations for the

review of new or modified stationary or indirect

sources, shall render the person or governmental

entity so failing to comply in violation of a re-

quirement of an applicable implementation plan

and subject to enforcement action under section

113 of the Clean Air Act. With regard to com-

pliance schedules, a person or Governmental en-

tity will be considered to have failed to comply

with the requirements of this part if it fails to

timely submit any required compliance schedule,

if the compliance schedule when submitted does

not contain each of the elements it is required

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to contain, or if the person or Governmental

entity fails to comply with such schedule.

* = s * .

Subpart F—California

* * * * a

§ 52.242 Inspection and maintenance program.

(a) Definitions:

(1) “Inspection and maintenance program”’

means a program to reduce emissions from in-

use vehicles through identifying vehicles which

need emission control-related maintenance and

requiring that maintenance be performed.

(2) “Light-duty vehicle” means any gasoline-

powered motor vehicle rated at 6,000 pounds

GVW or less.

(3) All other terms used in this section that

are defined in Appendix N to Part 51 of this

chapter, are used herein with the meanings so

defined.

(b) This section is applicable in the Metro-

-politan Los Angeles, San Diego, Sacramento

Valley, San Joaquin Valley, and San Francisco

Bay Area Intrastate Air Quality Control Re-

gions (hereinafter referred to as the Regions).

inspection and maintenance program applicable

to all light-duty vehicles registered in the Re-

gions that operate on streets or highways over

which it has ownership or control. No later than

June 1, 1974, the State shall submit legally

adopted regulations to EPA establishing such a

program. The State may exempt any class or

category of vehicles which it finds are rarely

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used on public streets and highways (such as

classic or antique vehicles). The regulations

shall include:

(1) Provisions for inspection of all light-duty

motor vehicles at periodic intervals no more than

one year apart by means of a loaded test.

(2) Provisions for inspection failure criteria

consistent with the emission reductions claimed

in the plan for the strategy. These emission re-

ductions are 15 percent for hydrocarbons and 12

percent for carbon monoxide. These criteria are

estimated to include failure of 50 percent of the

vehicles in the first inspection cycle.

(3) Provisions to ensure that failed vehicles

receive within two weeks, the maintenance nec-

essary to achieve compliance with the inspection

standards. This shall include sanctions against

noncomplying individual owners and repair fa-

cilities, retest of failed vehicles following main-

tenance, a certification program to ensure that

repair facilities performing the required main-

tenance have the necessary equipment, parts,

and knowedgeable operators to perform the tasks

satisfactorily, and such other measures as may

be necessary or appropriate.

(4) A program of enforcement to ensure that,

following inspection or maintenance, vehicles are

not intentionally readjusted or modified in such

a way as would cause them no longer to comply

with the inspection standards. This might in-

clude spot checks of idle adjustments and/or a

suitable type of physical tagging. This program

shall include appropriate penalties for violation.

(5) Provisions for beginning the first inspec-

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tion cycle on October 1, 1975, and completing it

by September 30, 1976.

(6) Designation of an agency or agencies re-

sponsible for conducting, overseeing, and enforc-

ing the inspection and maintenance program.

(d) After September 30, 1976, the State shall

not register or allow to operate on its streets or

highways and light-duty vehicle that does not

comply with the applicable standards and pro-

cedures adopted pursuant to paragraph (c) of

this section. This shall not apply to the initial

registration of a new motor vehicle.

(e) After September 30, 1976, no owner of a

light-duty vehicle shall operate or allow the op-

eration of such vehicle that does not comply with

the applicable standards and procedures adopted

pursuant to paragraph (c) of this section. This

shall not apply to the initial registration of a

new vehicle.

-(f) The State of California shall submit no

later than February 1, 1974, a detailed compli-

ance schedule showing the steps it will take to

establish and enforce an inspection and mainte-

nance program pursuant to paragraph (c) of

this section, including the text of needed statu-

tory proposals and needed regulations that it

will propose for adoption. The compliance sched-

ule shall also include:

(1) The date by which the State will recom-

mend any needed legislation to the State legis-

lature.

(2) The date by which necessary equipment

will be ordered.

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(3) A signed statement from the Governor

and State Treasurer identifying the sources and

amount of funds for the program. If funds can-

not legally be obligated under existing statutory

authority, the text of needed legislation shall be

submitted.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.