Petitioners Brief — Environmental Protection Agency v. Brown

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Nos. 75-909, 75-960, 75-1050, and ORTLED

SEP 29 1976

the Supreme Goat ofthe White San

OCTOBER TERM, 1976

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

EDMUND G. BROWN, JR., GOVERNOR OF THE STATE

OF CALIFORNIA, ET AL.

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

Vv.

STATE OF MARYLAND, ET AL.

COMMONWEALTH OF VIRGINIA, EX REL.

STATE AIR POLLUTION CONTROL BOARD, PETITIONER

RUSSELL E. TRAIN, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY

RUSSELL E. TRAIN, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

DISTRICT OF COLUMBIA, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS

OF APPEALS FOR THE NINTH, FOURTH AND DISTRICT OF

COLUMBIA CIRCUITS

BRIEF FOR THE FEDERAL PARTIES

ROBERT H. BORK,

Solicitor General,

PETER R. TAFT,

Aasistant Attorney General,

G. WILLIAM FRICK, A. RAYMOND RANDOLPH, Jr.

General Counsel, Deputy Solicitor General,

JOHN E. BONINE, HARRIET S. SHAPIRO,

Associate General Counsel, Assistant to the Solicitor General,

GERALD K. GLEASON, EDMUND B. CLARK,

Deputy Associate General BRUCE J. CHASAN,

Counsel, NEIL T. PROTO,

Environmental Protection MICHAEL D. GRAVES,

Agency. Attorneys,

Washington, Department of Justice,

D.C. 20460. Washington, D.C. 20530.

RD ok iin kc thdeee ced he cbKen cesses

Be eT Pee ee eee ere

Constitutional provisions and statutes involved . .

Ee er er eee eS eee

Statement amie cise wteneh keene be 46

A. Statutory background ..... ee hr es

B. Factual background .. .. .........

C. The proceedings below

Edmund G. Brown, Jr., et al. v. Envi-

ronmental Protection Agency (Pet. No.

ee Se pec cohauleneceaes

2. State of Arizona v. Environmental Pro-

tection Agency (Pet. No. 75-909, App.

DD ceuetecdeasén tas ckesseanneene

3. State of Maryland, et al. v. Environmen-

tal Protection Agency (Pet. No. 75-960,

rn Pe 665 h ov ahced) kobe kdweee ts

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

(Pet. No. 75-1055, App. la) ........

Nt II 65 bs 6b so $064 bSd 00004 0%

SE, CG Ee Adee eieeceeeekitadabeeoens

eT ee TE ee ee

I. The Administrator has authority under

the Clean Air Act to promulgate regula-

tions enforceable against the States as

I iid be cule a Gs un baecedbced on ne

A. Section 110 requires the Administra-

tor to promulgate an adequate imple-

mentation plan if a State fails to do

B. A substitute implementation plan

may include provisions applicable to

the State as a polluter ............

(I)

“1 > & GW W DPD

II Ill

Page Page

C. Section 113 of the Act authorizes the Cases—Continued

Administrator to enforce implemen- | Fitzpatrick v. Bitzer, No. 75-251, decided June

tation plan requirements applicable NS ob at odd db dn head cen nbn ek ees 41

to the State in its role as polluter .. 36 Friends of the Earth v. Carey, 535 F.2d 165 32, 39

II. A State may constitutionally be required Friends of the Earth v. Environmental Protec-

to operate its transportation systems so tion Agency, 499 F.2d 1118 .......... 25, 32, 40

as to minimize the pollution those sys- Fry v. United States, 421 U.S. 542 ......... 18, 52

CUES Cn kc cccnnsntecbevessseus 41 Gibbons v. Ogden, 9 Wheat.1.......... 42, 43, 46

A. Federal regulation of the causes of Griggs v. Allegheny County, 369 U.S. 84 ...... 26

pollution is within the powers of Con- Hancock v. Train, No. 74-220, decided June 7,

gress under the Commerce Clause .. 42 ER ER ee pees 29

B. The separate and independent exist- Heart of Atlanta Motel, Inc. v. United States,

ence of the States is not here threat- aaa las eee ie waitin 42-43, 54

GE co ccnsscncavessvenevaceses 45 Hendrick v. Maryland, 235 U.S. 610 ......... 55

III. The Commonwealth of Virginia is not re- Illinois v. City of Milwaukee, 406 U.S.91.... 26

quired to breach the Washington Metro- Katzenbach v. McClung, 379 U.S. 294 ........ 54

politan Area Transit Authority Com- Lodge 76, International Association of Machin-

pact Pere eer TT Tere TT Lee eet 56 ists v. Wisconsin Employment Relations Com-

NS - . 6 nck nee eho keeen sey eNeaewes 60

mission, No. 75-185, decided June 25,1976. 54

BORE 0.0.0 ccc cvccccesecscedessecesaces 1A Metropolitan Washington Coalition v. District

CITATIONS of Columbia, 511 F.2d 809 .............. 32

— National League of Cities v. Usery, No. 74-878,

Abbott Laboratories v. Portland Retail Drug- decided June 24, 1976 ........ aa re ve

a oc., Inc., No. 4-114, decided Maren 28 Natural Resources Defense Council, Inc. v. En-

Burbank, City of v. Lockheed Air Terminal, oe Protection Agency, 475 F.2d —

i, GEO Ws Ge x 60d ic dcawenndceacssanes ea Cg ee ere yee re EPSPS HSE SHS ,

| ’ Natural Resources Defense Council, Inc. v. En-

— apg AED Fe wy 94 vironmental Protection Agency, 478 F.2d 875 31

Chrysler Corp. v. Tofany, 419 F.2d 499 ...... 53 N — ca tay td a Securities & Exchange

Cleveland v. United States, 323 U.S. 329 ...... 42 ommission, S. 686 .............. . 42

Commonwealth of Pennsylvania v. Environ- Overstreet ben North Shore Corp., 318 U.S. 125 43

mental Protection Agency, 500 F.2d 246 . . .32, 33 Pennsylvania v. Environmental Protection

Federal Energy Administration v. Algonquin Agency, 500 F.2d 246 ........ 25, 27, 33, 45, 53

SNG, Inc., No. 75-382, decided June 17,1976 34 Perez v. United States, 402 U.S. 146 ........ 42

Page

Cases—Continued

Sanitary District of Chicago v. United States,

is Eee 53

Santa Cruz Co. v. National Labor Relations

Board, BB USB. GB oc ccccccevsssne 46

South Terminal Corporation v. Environmental

Protection Agency, 504 F.2d 646 ..... 25, 31, 45

1 esta, v. Ratt, FBO UB. GED 1+ ccexvecensaee 53

Train v. Colorado Public Interest Research

Group, Inc., No. 74-1270, decided June 1,

BGO ccc cccccessseeeeee eee 34, 36

Train v. Natural Resources Defense Council,

me 8) Ff eee ee 26, 29, 44, 50, 52

Union Electric Co. v. Environmental Protection

Agency, No. 74-1542, decided June 25,

i re 27, 28-29, 52

United States v. Bass, 404 U.S. 336 .......... 46

United States v. California, 297 U.S. 175 ...22, 25,

47, 54

United States v. Northwestern Pac. R. Co., 235

os 25

United States v. Republic Steel Corp., 362 U.S.

GB nc cccécvccescesdunn eee 28

Weinberger v. Bentex Pharmaceuticals, 412

Uae GE . wc ccccccéveneccensl 28

Wickard v. Filburn, 317 U.S. 111 .......... 43

Zemel v. Rusk, 381 U.S. 1 .. 2... cccccccces 34, 36

Constitution, statutes, regulations:

United States Constitution:

OO OS 1A

eee 1A

Tenth Ammondenant ....ocscccessnes 1A

Eleventh Amendment .. 40

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

by the Clean Air Amendments of 1970, 84

Constitution, statutes, regulations—Continued

Stat. 1676, 42 U.S.C. 1857 et seq., as amended

by Section 302, 85 Stat. 464, and Sections 4

and 6 of the Energy Supply and Environmen-

tal Coordination Act of 1974, Pub. L. No.

93-319, 88 Stat. 256 (42 U.S.C. (Supp. V)):

Page

i cee ieee 6eceéeess 2A

i Le cea yeeeees 4,42, 2A

ED. coveceeeeessocces .5, 2A

PEED ccc ovebdccoccccecees 4,2A

SE 50

ca cee eebeneeees 5, 3A

EE 7, 3A

i ee eee dese eeceee 5, 4A

ED Ceca eeeeceseeceses 5, 4A

Ce sau wuens oes 666 6, 7, 17, 28, 31, 5A

Dds. dees e060 7,31, 40, 5A

Ee 5, 5A

CE EE coc ceeecccececes 5, 30, 5A

Section 110(a)(2)(A) .............405. 6, 6A

Section 110(a)(2)(A)(i) ............. 28, 6A

Section 110(a)(2)(B) ............. 29, 32, 6A

Section 110(a)(2)(G) ............ 29, 32, 7A

ED con wéecéscceses 5, 9, 15, 30, 9A

Section 110(c)(2)(A) ............... 34, 10A

Section 110(c)(2)(B) ............... 34, 11A

Section 110(c)(2)(C) ............... 34,11A

Le 31, 39, 12A

ee eee insceseececess 29, 13A

rs ook 666 6 bb A 50600006 29,14A

CN 32, 36, 37, 39, 40, 15A

Section 113(a)(1) ...... 17, 37, 38, 39, 40, 15A

Section 118(a)(2) ........06 ee. 13, 38, 16A

Section 113(a)(4) ........ccccceeees 38, 17A

ee ee vee eeecceces 37,17A

RE EEE cc ccccccccsccccess 15, 38, 18A

Page

Constitution, statutes, regulations—Continued

S PPP ere re or eer 31

PE. <ccctexuecebcas deen ansmeneds 29

DE is cee eeeeeennsans the teeee 19A

Pa rrwerrsree ree TT 19,19A

OS 0 ee 17, 19, 39, 19A

PCM ic cecdceeonsetedawane 5, 19A

Pe eee eo 32, 36, 40

SE OUNCES occcccevencweeeected 8, 13

Energy Supply and Environmental Coordina-

tion Act of 1974, Pub. L. 93-319, 88 Stat.

EL ee er re 34-35

CD: ois sacs cess densenaeue’ 34

Federal Aid Highways Act, 23 U.S.C. 101, et

seq., 23 U.S.C. (Supp. V) 154 (88 Stat. 2286) 53

National Traffic and Motor Vehicle Safety Act,

15 U.S.C. 1381, et seg., 15 U.S.C. 1392(d) .. 53

Urban Mass Transportation Act of 1964, 78

Stat. 302, as amended, 49 U.S.C. 1601, et seq.,

49 U.S.C. (Supp. V) 1603(a) ............ 51

Washington Metropolitan Area Transit Author-

ity Compact, Pub. L. 89-774, 80 Stat. 13824 .. 56

Section 18, 80 Stat. 1832 .............. 58

Pub. L. 93-563, 88 Stat. 1822, 1843, Section 510 34

Pub. L. 93-643, 88 Stat. 2281, Section 120 .... 51

Pub. L. 94-116, 89 Stat. 581, 600, Section 407 34

Pub. L. 94-378, 90 Stat. 1095, 1109, Section 406 34

23 U.S.C. (Supp. V) 142(a)(1) ............ 51

23 U.S.C. (Supp. V) 142(a)(2) ............ 51

OE 65-444 bn eee n dae ceenedeeescuues 25

49 U.S.C. (Supp. V) 151l(a) .............. 25

Ariz. Rev. Stat., Section 36-1775A (1974) ... 50

Ann. Cal. Code, Bus. & Prof., Sec. 9889.50, et

ee es ee eee 10

D.C. Code, Title 40, ch. 2, Sections 205 and 206

SU 45066060 cvdns cbaneee cuaweusi 55

VII

Page

Constitution, statutes, regulations—Continued

Code of Va., Title 15.1, Ch. 32, Section 15.1-

Dy ivccnauemeesedande ee beede ines 4 58

Va. Acts of Assembly, 1964, Ch. 631 ........ 58

eed weees 8

Se LD. oc enceseneseneuees 12

re i ee ee 12

i Na a ee Peal 12

RE me ne ee 12

CE Re eee er ae 12

EE i a, icaniedswe auaneden 11

RR OTT Tr rere 11,12

PF roe r eer ere 12

re IID «6d deco we teeeweemus 12

SED. ied vcec ceedwneuce® 11,12

se cis ce be cee ay 57

ND ob cid occcuceeecdeees 19, 57

I oe as 3 a cr i eee 12

I it i eS ed 12

Congressional material:

Committee Print, Serial No. 93-18, A Legisla-

tive History of the Clean Air Amendments of

1970, 93d Cong., 2d Sess. (1974) .......... 7

Committee Print, Serial No. $3-24, Senate Com-

mittee on Public Works, Air Quality and

Automobile Emission Control, Report by the

Coordinating Committee on Air Quality

Studies, National Academy of Sciences, Na-

tional Academy of Engineering, 93d Cong.,

A oie eee a tek 43-44, 51, 52

116 Cong. Rec. 19204 (1970) .......... 2... 25

116 Cong. Rec. 19204-19205 (1970) ........ 43

116 Cong. Rec. 19208-19209 (1970) ........ 43

116 Cong. Rec. 19209-19210 (1970) ........ 43

116 Cong. Rec. 19216 (1970) .............. 43

116 Cong. Rec. 32919-32920 (1970) ........ 43

VIll

Page

Congressional material—Continued

116 Cong. Rec. 32920-32922 (1970) ........ 43

116 Cong. Rec. 33091-33093 (1970) ........ 43

116 Cong. Rec. 33115-33117 (1970) ........ 43

116 Cong. Rec. 42385 (1970) .............. 37

119 Cong. Rec. 41300 (1973) ............... 35

119 Gong. Rec. 41305 (1973) .... .......... 35

Hearings on S. 3229, S. 3466, S. 3546 (Air Pol-

lution—1970 (Parts 1-5)) before the Sub-

committee on Air and Water Pollution of the

Senate Committee on Public Works, 91st

eee wn hla a als 43

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

I ded is Cae rad See ee 7, 33, 43

H.R. Rep. No. 93-763, 93d Cong., 2d Sess.

Do Cvtndeek Ganda tetcamed sen kk oe ee 34

H.R. No. 94-1175, 94th Cong., 2d Sess.

RN fo Se wt, er ae eee eed 45, 51

S. Rep. No. 91-1196, 91st Cong., 2d Sess.

I a erate eee g Lien DE ey 7, 8, 32, 43

S. Rep. No. 93-663, 93d Cong., Ist Sess. (1973) 35

Miscellaneous:

Barrett and Waddell, Cost of Air Pollution

Damage: A Status Report, Environmental

Protection Agency (February, 1973) ...... 44

BNA Environment Reporter, Current Develop-

ment, v. 5, no. 21 (September 20, 1974)..... 38

Corwin, The Commerce Power versus States

er ee 41

Department of Health, Education, and Welfare,

No. AP-63, Air Quality Criteria for Photo-

chemical Oxidants (March, 1970) ....... 7,43

Department of Health, Education, and Welfare,

No. AP-64, Air Quality Criteria for Hydro-

carbons (March, 1970) .................. 7

Page

Congressional material—Continued |

Evans, Private Turnpikes and Bridges, 50

American Law Review (1916) .......... 55

36 Fed. Reg. 8186 (April 30,1971) .......... 7

36 Fed. Reg. 15486 (August 14,1971) ...... 8

37 Fed. Reg. 10842 (May 31, 1972) ........ 8,9

37 Fed. Reg. 10852 (May 31,1972) ........ 9

37 Fed. Reg. 10845 (May 31,1972) .......... ae

38 Fed. Reg. 11114 (May 4, 1973) .......... 33

38 Fed. Reg. 7323 (March 20, 1973) ........ 9

38 Fed. Reg. 10119-10120 (April 24,1973) ... 33

38 Fed. Reg. 16550 (June 22,1973) ........ )

38 Fed. Reg. 16555-16569 (June 22, 1973) .. 9

38 Fed. Reg. 16556 (June 22,1973) ........ 9

38 Fed. Reg. 16564 (June 22,1973) ........ 9

38 Fed. Reg. 30626 (November 6, 1973) ...... 8

38 Fed. Reg. 30628 (November 6, 1973) .... 10,49

38 Fed. Reg. 30628-30631 (November 6, 1973) 11

38 Fed. Reg. 30632-30633 (November 6,

DD ks :déiche.uddddwencbeedeendident 12, 21

38 Fed. Reg. 31232 (November 12,1973) .... 10

38 Fed. Reg. 31536 (November 15,1973) .... = 11

38 Fed. Reg. 33368 (December 3, 1973) ...... 10

38 Fed. Reg. 33702 (December 6, 1973) ..... 10, 11

38 Fed. Reg. 33705 (December 6, 1973) ...... 10

38 Fed. Reg. 33705-33706 (December 6, 1973) 10

38 Fed. Reg. 33706 (December 6, 1973) ...... 58

38 Fed. Reg. 34240 (December 12,1973) .... 10

41 Fed. Reg. 28635 (July 12,1976) ........ 45

Friendly, “Mr. Justice Frankfurter and the

Reading of Statutes,” Benchmarks (1976) . 27-28

Lueng and Klein, The Environmental Control

Industry, An Analysis of Conditions and

Prospects for the Pollution Control Equip-

ment Industry (December, 1975) ......... 44

Page

Miscellaneous—Continued

Progress in the Prevention and Control of Air

Pollution in 1975, Annual Report of the Ad-

ministrator of the Environmental Protection

Agency to the Congress of the United States

| RS re eee yyy 50

Salmon, The Federalist Principle: The Interac-

tion of the Commerce Clause and the Tenth

Amendment in the Clean Air Act, 2 Colum.

Jour. of Env. Law (1976) .............. 19, 33

Shutler, Overview of Inspection’ Maintenance

(1/M), Proceedings of the Fourth North

American Motor Vehicle Emission Control

Conference (November 5-7, 1975) ........ 50

State Air Pollution Implementation Plan Prog-

ress Report, July 1 to December 31, 1975, En-

vironmental Protection Agency (April

a Pe ere ee ae ae rere 45, 52

Status of Safety and Emissions Inspection in

the Fifty States (February, 1976), Automo-

tive Parts & Accessories Association ...... 50

Tribe, Intergovernmental Immunities in Litiga-

tion, Taxation, and Regulation : Separation of

Powers Issues in Controversies about Fed-

eralism, 89 Harv. L. Rev. 682 (1976) .... 40, 46

Wechsler, The Political Safeguards of Federal-

ism: The Role of the States in the Composi-

tion and Selection of the National Govern-

ment, 54 Colum. L. Rev. (1954) .......... 46

Gi the Supreme Court of the Gnited States

OCTOBER TERM, 1976

No. 75-909

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

EDMUND G. BROWN, JR., GOVERNOR OF THE STATE

OF CALIFORNIA, ET AL.

No. 75-960

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

STATE OF MARYLAND, ET AL.

No. 75-1050

COMMONWEALTH OF VIRGINIA, EX REL.

STATE AIR POLLUTION CONTROL BOARD, PETITIONER

RUSSELL E. TRAIN, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY

No. 75-1055

RUSSELL E. TRAIN, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

DISTRICT OF COLUMBIA, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS

OF APPEALS FOR THE NINTH, FOURTH, AND DISTRICT OF

COLUMBIA CIRCUITS

(1)

BRIEF FOR THE FEDERAL PARTIES

OPINIONS BELOW

The opinions of the United States Court of Appeals

for the Ninth Circuit in Brown v. Environmental Pro-

tection Agency (Pet. No. 75-909, App. A) and State of

Arizona v. Environmental Protection Agency (Pet. No.

75-909, App. C) are reported at 521 F. 2d 827 and 521

F. 2d 825, respectively. The opinion of the United

States Court of Appeals for the Fourth Circuit in State

of Maryland v. Environmental Protection Agency (Pet.

No. 75-960, App. A) is reported at 530 F. 2d 215. The

opinion of the United States Court of Appeals for the

District of Columbia Circuit in District of Columbia v.

Train (Pet. No. 75-1055, App. A; Pet. No. 75-1050,

App. A) is reported at 521 F. 2d 971.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit in Brown v. Environmental Protection Agency

was entered on August 15, 1975 (Pet. No. 75-909, App.

A). 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 (Pet. No. 75-909, App. C) was en-

tered 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 Decem-

ber 8, 1975, he extended the time within which to file

a petition for a writ of certiorari to and including

December 24, 1975. The petitions of both parties were

filed on December 24, 1975 and were granted on June

1, 1976 (A. 978).

The judgment of the Court of Appeals for the Fourth

Circuit in State of Maryland v. Environmental Protec-

tion Agency was entered on September 19, 1976 (Pet.

No. 75-960, App. A). By order of December 11, 1975,

the Chief Justice extended the time within which to file

a petition for a writ of certiorari to and including Jan-

uary 12, 1976. The petition was filed on January 7,

1976 and was granted on June 1, 1976 (A. 979).

The judgment of the Court of Appeals for the Dis-

trict of Columbia Circuit in District of Columbia v.

Train was entered on October 28, 1975 (Pet. No. 75-

1055, App. A). The petitions for writs of certiorari

were filed on January 26, 1976 and granted on June 1,

1976 (A. 980-981).

The jurisdiction of this Court rests on 28 U.S.C.

1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

The pertinent provisions are set forth in Appendix

A, infra.

QUESTIONS PRESENTED

1. Whether the Administrator of the Environmental

Protection Agency has authority under the Clean Air

Act to require a State to manage its transportation

system so as to decrease air pollution resulting from

motor vehicle traffic.

2. Whether, if the Administrator has such statu-

tory authority, the Clean Air Act is in this respect a

valid exercise of Congress’ power under the Commerce

Clause of the Constitution.

3. Whether the requirement that the Common-

wealth of Virginia contribute to the purchase of buses

is consistent with the Washington Metropolitan Area

Transit Authority Compact.

STATEMENT

A. STATUTORY BACKGROUND

As amended in 1970, the Clean Air Act prescribes a

comprehensive regulatory scheme for reducing emis-

sions of certain pollutants into 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 wel-

fare and the productive capacity of its population”

(Section 101(b) (1) ).’ In concluding that it was neces-

sary to attain this objective, Congress found that (Sec-

tion 101(a) (2)):

[T]he growth in the amount and com-

plexity of air pollution brought about by

urbanization, industrial development,

and the increasing use of motor vehicles,

has resulted in mounting dangers to the

public health and welfare, including in-

jury to agricultural crops and livestock,

damage to and the deterioration of prop-

erty, and hazards to air and ground

transportation.

1 Section references to the Act are used in the text; cross

references to the United States Code citations appear in the

Appendix.

The Administrator of the Environmental Protection

Agency (EPA) must establish standards governing

maximum concentrations of particular pollutants in

the air, but the Act gives States and local governments

the primary responsibility for promulgating enforce-

able regulations to establish and implement air qual-

ity control programs (Sections 101(a)(3), 107(a)).

The Act requires each State to submit to the Adminis-

trator a plan for “implementation, maintenance, and

enforcement” of the national primary and secondary

ambient air quality standards’ for every portion of the

State within nine months after the Administrator pro-

mulgates those standards. Section 110(a) (1). Within

four months after its submission, the Administrator

must approve the State’s implementation plan if it sat-

isfies the statutory criteria; if it does not, he must pro-

mulgate a substitute plan for the State (Section 110

(a) (2) and (c)).

The implementation plan must provide a regulatory

2 National primary ambient air quality standards are ‘“am-

bient 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 judgment of

the Administrator * * * is requisite to protect the public wel-

fare 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, vis-

ibility, and climate, damage to and deterioration of property,

and hazards to transportation, as well as effects on economic

values and on personal comfort and well-being.” Section 302

(h).

scheme for controlling emissions from stationary and

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 pro-

cedures necessary to achieve and maintain the stand-

ards will vary with the conditions in the different air

quality control regions; more stringent measures are

necessary in severely polluted urban areas.’ The Act

requires each state implementation plan to provide for

the attainment of the primary air quality standards

throughout the State within three years from the date

the Administrator approves the plan, and the secondary

standards within a reasonable time (Section 110(a)

(2)(A)). In order to do so, each plan must include,

for each air quality control region: (1) regulations

limiting emissions from old and new pollution sources;

(2) schedules for compliance with the limitations;

(3) provisions for collecting, analyzing and mak-

ing available emissions data; (4) provisions for such

additional methods of pollution control as may be

necessary, including land-use and transportation con-

trols; (5) a description of the State’s legal authority

and resources to implement its plan; (6) a procedure

for revision of its plan; (7) provisions for intergov-

ernmental cooperation; and (8) to the extent necessary

and practicable, a procedure for inspecting and testing

motor vehicles.

’ The dispute here involves the plans for several such re-

gions: the National Capital Area (Washington, D.C., and its

Maryland and Virginia suburbs); Metropolitan Baltimore;

Metropolitan Los Angeles; San Diego; the San Francisco Bay

Area; Sacramento; and the San Joaquin Valley.

B. FACTUAL BACKGROUND

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 (April 30, 1971). Four

of these pollutants—carbon monoxide, photochemical

oxidants, nitrogen dioxide and hydrocarbons—result

chiefly from motor vehicle emissions, which constitute

forty-eight percent of the total of approximately 190

million tons of air pollutants produced in this country

annually.‘ The statute accordingly required that each

State submit its implementation plan for these six

pollutants to the Administrator for approval within 9

months—no later than January 30, 1972—and he was

to act on all plans by May 31, 1972 (Section 110(a)).

As noted, Section 110 of the Act requires that trans-

portation controls be part of a state implementation

plan when they are necessary to attain or maintain

the primary air quality standards.’ The Administra-

‘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 (March, 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. (1974) (“Leg.

Hist.”), pp. 381-382 (S. Debate on S. 4358, Sept. 22, 1970,

Sen. Montoya) ; Leg. Hist. 228 (S. Debate on S. 435& Sept.

21, 1970, Sen. Muskie). |

5 Transportation controls include “any measure, such as re-

ducing vehicle use, changing traffic flow patterns, decreasing

tor initially decided to permit the States extra time

to submit transportation control plans due to the lack

of experience with such controls and the scarcity of

available data. Thus, while the state implementation

plans were due on January 30, 1972, he deferred the

date for state submission of any necessary transporta-

tion control’ plans until February 15, 1973. 36 Fed.

Reg. 15486 (August 14, 1971). He also extended for

two years the date for attainment of the primary air

quality standards in areas where transportation con-

trol measures were necessary. See generally 38 Fed.

Reg. 30626 (November 6, 1973); 37 Fed. Reg. 10842

(May 31, 1972).

The deferrals and extensions were challenged in the

United States Court of Appeals for the District of

Columbia Circuit (see Section 307(b)(1)); on Janu-

ary 31, 1973, that court declared the Administrator’s

actions invalid. Natural Resources Defense Council,

Inc. v. Environmental Protection Agency, 475 F. 2d

968. The effect of the delays, the court concluded, was

“to interfere with the Congressional purpose of attain-

ing clean air by a date certain, May 31, 1975, subject

only to certain limited and well defined statutory exten-

sions” (475 F. 2d at 970). The court ordered the

Administrator to rescind all previously granted de-

ferrals for the submission of transportation control

plans as well as the two-year extensions for attainment

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. Rep. No. 91-1196, 91st Cong., 2d Sess. 2, 12-14 (1970).

of air quality, and ordered him to require each State

to submit by April 15, 1973, an appropriate plan to

attain the primary air quality standards by May 31,

1975. If a State failed to submit such a plan, the

Administrator would have to prepare and publish a

substitute plan (475 F.2d at 970-971; Section 110(c) ).

The Administrator promptly notified the twenty-two

affected States of these developments and amended his

previous actions on state plans to comply with the

court order. 38 Fed. Reg. 7323 (March 20, 1973).

The State of California failed to submit a transpor-

tation control plan to EPA by April 15, 1973. Ac-

cordingly, the Administrator disapproved the Cali-

fornia plan for oxidants and carbon monoxide in five

regions, 38 Fed. Reg. 16550, 16556, 16564 (June 22,

1973).° The other States who are respondents have

submitted transportation control plans to the Admin-

istrator. However, these plans were in some respects

inadequate to insure attainment and maintenance of

the primary air quality standards by May 31, 1975,

and therefore the plans were disapproved in part. 38

Fed. Reg. 16550, 16555-16569 (June 22, 1973) (Ari-

zona, Maryland, and Virginia). Each of the States sub-

sequently supplemented its plan to correct some of the

deficiencies identified by the Administrator. To the

extent possible, the Administrator approved the plans

as supplemented. To the extent they were still inade-

quate, he promulgated substitute measures, supple-

® He had previously disapproved a plan for Los Angeles, 37

Fed. Reg. 10842, 10852 (May 31, 1972).

menting or modifying the state proposals only as neces-

sary to assure attainment of the required air quality.’

The substitute measures for Arizona were promul-

gated on December 3, 1973 (38 Fed. Reg. 33368), for

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

31232) ,° for the Baltimore Air Quality Control Region

of Maryland on December 12, 1973 (38 Fed. Reg.

34240), and for the National Capital Interstate Air

Quality Control Region (consisting of Washington,

7 E.g., 38 Fed. Reg. 30628 (November 6, 1973) ; 38 Fed. Reg.

33702 (December 6, 1973). In the National Capital Area, for

example, the District of Columbia and Virginia proposals for

inspection and maintenance of light-duty vehicles were ade-

quate and were approved in full; the substitute plans for the

District and Virginia contain only requirements for inspection

and maintenance of medium and heavy duty vehicles. 38 Fed.

Reg. 33705 (December 6, 1973) ; Pet. No. 75-1055, App. 62a-

65a, 106a-109a. Although Maryland also proposed an inspec-

tion and maintenance program for light-duty vehicles, it was

not described in detail and the substitute plan for Maryland

was designed to establish a program similar to those of the

other jurisdictions. 38 Fed. Reg. 33705 (December 6, 1973).

The three jurisdictions also proposed to establish exclusive

bus lanes in specified highway corridors and to expand bus

service in the National Capital Area by adding 750 buses to

the existing fleet. The Administrator approved these proposals

except to the extent that they failed to assure that the meas-

ures would actually be implemented in a timely manner; to

remedy that deficiency, he promulgated supplementary re-

quirements to assure that the necessary actions would be taken

on schedule. 38 Fed. Reg. 33705-33706 (December 6, 1973;

Pet. No. 75-1055, App. 104a-105a.

* Before the substitute plan was promulgated, the legislature

of California authorized the Governor to implement a manda-

tory program of automobile emission control inspection in the

Los Angeles air quality control region, and later to expand the

program to other parts of the State. Ann. Cal. Code, Bus. &

Prof., Section 9889.50, et seq. (1973).

D.C., and its Virginia and Maryland suburbs) on No-

vember 15, 1973 (38 Fed. Reg. 31536), and on Decem-

ber 6, 1973 (38 Fed. Reg. 33702).

Although the provisions vary somewhat from State

to State, the regulation for inspection and maintenance

of automobiles in Baltimore illustrates the type of re-

quirements imposed by the Administrator.’ The regula-

tion, 40 C.F.R. 52.1095: (1) requires the State of

Maryland to establish an inspection and maintenance

program applicable to vehicles registered in Baltimore

which operate on public streets or highways over which

it has ownership or control (40 C.F.R. 52.1095(c) ) ;

(2) requires the State to submit by February 1, 1974,

“a detailed compliance schedule showing the steps it

will take to establish and enforce an inspection and

maintenance program,” including the text of ‘“‘needed

statutory proposals” and “regulations that it will pro-

pose for adoption,” the date by which the State will

recommend needed legislation to the State legislature,

the date by which equipment will be ordered, and a

statement by the Governor or his designee identifying

the sources and amounts of funds for the program,

plus the text of needed legislation, if any (40 C.F.R.

52.1095(f)); (3) requires the State by April 1, 1974,

®In addition to the inspection and maintenance programs,

the various substitute plans required the States to take such

actions as establishing bicycle and bus lanes, submitting com-

pliance schedules for implementing the commitments in their

plans to purchase buses, requiring older cars to be fitted with

emission control devices, limiting parking on public streets,

and establishing computerized carpool information services.

The nature of these requirements is described in 38 Fed. Reg.

30628-30631 (November 6, 1973). :

to submit legally adopted regulations establishing the

program, including provisions for yearly inspection,

emission standards, maintenance of failed vehicles,

anti-tampering measures, designation of a responsible

state agency, and completion of the first inspection

cycle by July 31, 1976 (40 C.F.R. 52.1095(c)); (4)

prohibits the State after July 31, 1976, from register-

ing or allowing to operate on its public streets or high-

ways any noncomplying vehicles (40 C.F.R. 52.1095

(d)); and (5) prohibits owners from operating non-

complying vehicles after July 31, 1976 (40 C.F.R.

52.1095(e) ).

In explaining these requirements, the Administra-

tor noted that extensive state highway systems encour-

age the use of private cars, the major sources of four

of the six pollutants to be controlled. He therefore con-

cluded that highways are indirect sources of pollutants,

and the State, as owner and operator of the sources,

can be directed, like any other operator of a pollution

source, to conduct its pollution causing activities in a

way that will minimize the pollution released (38 Fed.

Reg. 30632-30633, November 6, 1973). Thus, the Ad-

ministrator’s regulations directed each jurisdiction

here involved to submit schedules showing when it

would establish programs—including inspection and

maintenance programs and bus lane programs—to

bring its operation of the highways in the various air

quality control regions involved into compliance with

the applicable implementation plan (40 C.F.R. 52.242,

52.244, 52.490, 52.1089, 52.2441, 52.2442, 52.137-

52.139, 52.1095(f)). California, Arizona, Maryland,

the District of Columbia and Virginia thereupon peti-

tioned the courts of appeals pursuant to Section 307

(b)(1) of the Act for review of the Administrator’s

regulations.

C. THE PROCEEDINGS BELOW

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

Protection Agency (Pet. No. 75-909, App. la). After

preliminary proceedings, the court and the parties de-

termined that the question of the scope of EPA’s au-

thority to require compliance by the State was ripe for

immediate adjudication. Other constitutional and stat-

utory questions were to be heard at a later date.

Refusing to accept the Administrator’s rationale for

treating the State, in its role of owner and operator of

its highways, as a creator of the pollution (id. at 26a),

the court concluded that “the Act, as we see it, permits

sanctions against a state that pollutes the air, but not

against a state that chooses not to govern polluters as

the Administrator directs” (id. at 1la). The court con-

cluded that neither Section 113(a) (2), which provides

for federal enforcement of an implementation plan

when the State fails to do so, nor any other part of the

Act explicitly permits the Administrator ‘to compel

the states to administer and enforce regulations pro-

mulgated by him designed to govern polluters, poten-

tial or actual, other than the state * * *” (id. at 18a).

The court declined to infer the presence of any such

power, 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 Government in this obscure

manner” (id. at 16a). The court did recognize, how-

ever, that “our reading of section 113 and our percep-

tion of the structure of the Act is not unambiguously

supported by the applicable legislative history” (id. at

19a).

Although resting its decision on statutory interpreta-

tion, the court discussed the constitutional issues that

would be raised if the statute authorized the Adminis-

trator to require the States to regulate private pollu-

tion causing activities. Economic activity by the States

that substantially affects interstate commerce is subject

to federal regulation under the Commerce Clause, but

no case, according to the court of appeals, “holds or

even suggests that a State’s exercise of its police power

with respect to an economic activity which affects in-

terstate commerce is itself an economic activity or ‘spe-

cies of commercial intercourse’ subject to regulation by

Congress” (id. at 27a). The court concluded that the

federal government cannot compel a State to regulate

air pollution unless the pollution is solely caused by a

source or activity owned or operated by the State (id.

at 10a—lla). Otherwise, the court suggested, States

might be deprived of control over the manner in which

their tax revenues are spent and might become simply

tools for effectuating federally-prescribed policies (id.

at 32a—37a).

2. State of Arizona v. Environmental Protection

Agency (Pet. No. 75-909, App. 40a). Relying on its de-

cision 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 im-

plementation plan (id. at 43a).

3. State of Maryland, et al. v. Environmental Pro-

tection Agency (Pet. No. 75-960, App. la). The court

of appeals focused upon the provisions in the Adminis-

trator’s substitute transportation control plan requir-

ing the State to submit “legally adopted regulations”

and the “‘text of needed legislation,” and concluded that

“EPA has directed Maryland and her legislature to

legislate under pain of civil and criminal penal-

ties * * *” (id. at 22a)."’ In order to avoid the serious

constitutional issues raised by this direction, the court

decided the case on statutory grounds (id. at 27a—28a).

The court held that the Administrator exceeded his au-

thority in promulgating the contested regulations, be-

cause Section 110(c) authorizes the Administrator

merely to prepare “regulations to be applied [by EPA]

within the boundaries of a state if it does not act in a

manner approved by the EPA” (id. at 29a, 31a, 32a).

4. District of Columbia, et al. v. Train (Pet. No. 75-

1055, App. la). As did the court in the Maryland case,

the United States Court of Appeals for the District of

Columbia Circuit held that the Clean Air Act did not

authorize the Administrator to require the States to

adopt legislation or regulations to establish a transpor-

tation control program found necessary by EPA. Thus,

if a State fails to submit an acceptable plan, the Admin-

istrator must promulgate the regulations to be applied

within the State; he cannot compel the State to do so

(id. at 20a—28a). But the court of appeals further held

10 Section 113(c) provides for criminal penalties under cer-

tain circumstances. The Administrator has consistently denied

any intention to seek these sanctions against a State. See

infra, n. 32.

that when such regulations have been promulgated, the

Act authorizes the Administrator to require the States

to administer them. The court then considered the con-

stitutionality of the Act as so interpreted, and concluded

that a State could be required to implement federal

regulations designed to control pollution the State

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

vehicles) or indirectly (e.g., through the ownership of

state roads). Thus, a State could be required to des-

ignate exclusive bus lanes and purchase additional

buses, since those are valid regulations of state roads

as “indirect” sources (id. at 36a). The court also found

federal power extended to requiring the States to pro-

hibit the use of state roads by vehicles that do not com-

ply with federal standards, but it determined that that

power could not constitutionally extend to requiring

that the State implement federally promulgated pro-

grams to identify non-conforming vehicles (id. at 40a—

49a). The court thus upheld the exclusive bus lane

and increased bus fleet regulations but remanded the

inspection and maintenance and the retrofit regula-

tions to the Administrator to promulgate complete,

federally enforceable regulations as necessary to cure

the deficiencies in the state plans (id. at 48a—49a).

SUMMARY OF ARGUMENT

The Administrator’s conclusion that the States are

responsible as owners and operators of the public roads

for the pollution from motor vehicles is reasonable and

consistent with previous decisions of this Court and

the Congress in related fields. Moreover, the Act

authorizes him to direct the States to control the pollu-

tion caused by the functioning of the roads. The Con-

stitution does not prohibit this narrow intrusion into

the State’s activities.

Section 110 of the Act requires that each State must

have an implementation plan providing for the at-

tainment of primary ambient air quality standards

throughout the State within three years. If a State

fails to propose an adequate implementation plan, the

Administrator must promulgate one. The 1970 Amend-

ments to the Clean Air Act make no distinction between

plans proposed by the States and substitute plans pro-

mulgated by the Administrator; both must include

effective transportation control measures if necessary

to achieve the ambient air quality standards, and the

State must comply with these measures. This is demon-

strated not only by the language and structure of Sec-

tion 110, but also by the fact that Section 113(a) (1)

provides that whenever the Administrator finds that

“any person” is in violation of an applicable imple-

mentation plan, the Administrator shall take steps to

compel such person to comply with the plan’s require-

ments. The term “person” includes a State (Section

302(e)). The Act and its legislative history both make

clear that Congress intended to require the States to

conform their pollution-creating activities to federal

standards, and that it recognized that those activities

included the ownership and operation of public high-

ways.

As so interpreted, the Act is constitutional. The

Commerce Clause amply supports a federal require-

ment that the States control the pollution they cause,

directly or indirectly. The congressional findings that

air pollution has an adverse impact on the national

health and economy and that local controls have proven

inadequate are amply supported by the Act’s legisla-

tive history.

The requirement that a State operate its highways

in a way which limits the pollution they cause does not

threaten the separate and independent existence of the

State (cf. National League of Cities v. Usery, No. 74-

878, decided June 24, 1976). That requirement imposes

no substantial costs upon the States nor does it dis-

place a wide range of state decisions about how tradi-

tional state functions will be performed. Instead, the

regulations at issue here are narrowly drawn to affect

only one area of state activity—its transportation

policy—and only that part of the activity that specific-

ally creates the pollution problem. Even in that narrow

area, state policies are displaced only to the extent

necessary to assure compliance with federal standards

and each State remains free to replace the federal

regulations with adequate measures of its own choos-

ing. None of the required programs need be expensive;

the States will not be required to make substantial

re-allocations of resources available for other public

services in order to satisfy the federal requirements.

Moreover, the requirements at issue here, like those in

Fry v. United States, 421 U.S. 542, reflect the need for

federal action to combat a national emergency. Finally,

the fact that the regulations require some affirmative

state action does not render them unconstitutional.”

ARGUMENT

INTRODUCTION

Contrary to the court’s statements in Brown v.

Environmental Protection Agency, the Administrator’s

argument is not that a State’s'* exercise of its govern-

mental power over commerce is itself an economic

activity subject to federal control under the Commerce

Clause (Pet. No. 75-909, App. 27a—30a).'"* The Admin-

istrator claims only that the States, no less than private

individuals, may be required to take steps to reduce the

11 The Commonwealth of Virginia is not required, as it

claims, to purchase buses in contravention of the interstate

compact to which it is a party. Instead, 40 C.F.R. 52.2435(e)

simply requires the Commonwealth to provide assurances con-

sistent with the compact that commitments for the bus pur-

chases have been made by the parties to the compact. The

Commonwealth itself agreed to contribute to bus purchases in

the plan it submitted to the Administrator. In any event, the

Commonwealth’s responsibility to operate its highways in a

way which reduces air pollution to acceptable levels cannot be

avoided by the manner in which it has chosen to make public

transportation available to its citizens.

12 Hereafter, except when the context indicates otherwise,

references to a “State” include local governments and the Dis-

trict of Columbia (see Section 302 (d) (e) ).

183The Administrator’s position is similarly misconceived

in an article written by a former law extern of Judge Sneed.

Salmon, The Federalist Principle: The Interaction of the Com-

merce Clause and the Tenth Amendment in the Clean Air Act,

2 Colum. Jour. of Env. Law 290, 324 et seq. (1976).

pollution caused by their own activities,“ and that it

makes no difference whether the state activity causes

the pollution directly by, for example, operating munic-

ipal incinerators and state vehicles, or indirectly, by

permitting private vehicles to use the state highways

in a way that causes unacceptable levels of pollution.

In either case, the Administrator may require the

State to conduct its pollution-causing activities in a

manner consistent with the reduction of air pollution.

The State is, in either case, subject to federal regula-

tion only to the extent it is responsible for the pollution,

and only when its responsibility stems not from mere

failure to regulate private activities, but from its own-

ership and control of the facilities used in the process

of contamination of the air. The power asserted by

the Administrator is only over the State as polluter,

not over the State as State.

‘4 The Administrator has never asserted any power to compel

the State to carry out its governmental responsibilities under

an implementation plan by, for example, monitoring ambient

air quality and enforcing the emission controls applicable to

private stationary sources. Nor does he contend that he can

direct the State to adopt laws o- regulations creating transpor-

tation control plans that comply with the Act (see Pet. No.

1055, App. 27a-29a; Pet. No. 75-909, p. 17, n. 15). He thus

concedes the necessity of removing from the regulations all re-

quirements that the States submit legally adopted regulations;

the regulations contain no requirement that the State adopt

laws. If the State fails to adopt an adequate plan, the Adminis-

trator must promulgate a comprehensive substitute plan, spe-

cifying such matters as the types of vehicles to be inspected, the

standards that must be met, and the frequency of inspection.

The State must then implement the program by establishing

the necessary inspection facilities, conducting the inspections,

refusing to register non-conforming vehicles, and enforcing its

registration laws.

Although two of the three courts below agreed that

a State may be required to conform its pollution-creat-

ing activities to federal standards,” they failed to

recognize that the ownership and operation of public

highways is such a pollution-creating activity." Recog-

nition of that principle is, however, fundamental to

the Administrator’s position on both the statutory and

constitutional issues here presented. The principle rests

on a firm factual basis, and there is substantial prece-

dent for holding persons responsible for the indirect,

as well as the direct, results of their activities.

Before promulgating substitute transportation con-

trol plans, the Administrator spelled out the factual

basis for the conclusion that a State may properly be

required to control the pollution emanating from the

roads it owns and operates (38 Fed. Reg. 30632-30633,

November 6, 1973) :

Transportation is a necessary service.

n our society, the form in which it is

provided depends overwhelmingly on the

regulatory, taxing and investment deci-

sions made at all levels of government.

15 Pet. No. 75-909, App. 10a-lla; Pet. No. 75-1055, App. 36a;

the court in No. 75-960 did not address the issue.

16 The court in District of Columbia v. Train (Pet. No. 75-

1055, App. 36a, 41a) did recognize this principle to a limited

extent; it agreed that the State's responsibility as an indirect

creator of pollution on public roads justified requiring it to

establish exclusive bus lanes, to purchase additional buses, and

to prohibit use of these roads by cars not conforming to federal

standards. But it concluded that the State’s responsibility did

not extend to implementing inspection or retrofit programs to

identify non-conforming cars (id. at 28a-33a, "37a-49a). The

Administrator contends that the court of appeals erred in this

respect.

By building and maintaining roads and

highways, by licensing vehicles and op-

erators, by providing a system of traffic

laws, and in many other ways, govern-

ment has encouraged the growth of auto-

mobile use to its present levels. There is

‘nothing inevitable about such a choice.

Governments could equally well have

chosen to discharge ux © 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.

The production of food, electricity,

and other consumer and industrial goods

is as necessary in our society as trans-

portation. In each case, the Clean Air

Act authorizes regulations requiring

such an activity, whether State or pri-

vate, to be undertaken in the least pollut-

ing way in order to attain and maintain

the air quality standards. There is no

valid distinction between such produc-

tion facilities and the State-owned auto-

motive transportation facilities. In a

comparable situation, the Supreme

Court has held that State-owned rail

transportation facilities must comply

with Federal safety regulations [United

States v. California, 297 U.S. 175].

A direct source of air pollution is one

from which pollution is emitted directly

into ambient air. Direct sources include

not only automobiles and other vehicles,

but also the facilities on which they are

located during their operation—parking

facilities and roads. Pollution is emitted

directly into the ambient air from such

facilities, and often the most feasible

method of reducing it is by imposing re-

strictions on their owners and operators.

Many such facilities may also be

viewed as indirect sources of air pollu-

tion. An indirect source is one that en-

courages mobile source pollution at loca-

tions not necessarily coincident with the

source itself by serving as a trip attrac-

tion for automobile drivers, or which

provides a parking or driving conven-

ience. Thus, the availability of ample low-

cost parking facilities and high-speed

freeways influences individuals to use

vehicles with as few as one person in

them, rather than less-polluting modes of

transit. Such facilities may legitimately

be charged not only with the pollution

arising directly from their premises, but

also with the total pollution in the region

emitted by the traffic increase which they

encourage.

For these reasons, the Administrator

has concluded that regulations placing

restrictions on parking and on the use of

road space are essential to reduce the

amount of air pollution generated by

automobiles, and that they are valid ex-

exercises of EPA’s regulatory authority.

The Administrator is also promulgat-

ing regulations requiring that vehicles

Allowed to operate on public roads be in-

spected or “retrofitted” with emission

control equipment. Use of public roads

by large numbers of publicly registered

and regulated vehicles without either

proper maintenance or adequate control

equipment also causes damage to health.

The requirement that the road owners

and the licensing and regulating author-

ities prohibit such use is a reasonable

means of preventing such damage.

Direct Federal enforcement and mas-

sive, duplicative Federal programs

aimed at vehicles on an individual basis

were not the means contemplated by the

Act to solve these problems. It is clearly

necessary that implementation of trans-

portation control plans be carried out at

the State and local level. The Chairman

of the House Committee that reported

out the amendments to the Act described

their purpose as follows:

If we left it all to the Federal Gov-

ernment, we would have about

everybody on the payroll of the

United States. We know this is not

practical. * * * [116 Cong. Rec. 19204

(1970).]

The Administrator’s conclusion that indirect, as well

as direct, sources of pollution are subject to control

under the Act has been upheld in several circuits. South

Terminal Corporation v. Environmental Protection

Agency, 504 F. 2d 646, 668-669 (C.A. 1) (control of

parking facilities) ; Friends of the Earth v. Environ-

mental Protection Agency, 499 F. 2d 1118, 1125 (C.A.

2) (on-street parking restrictions) ; District of Colum-

bia v. Train, 521 F. 2d 971 (Pet. No. 75-1055, App.

36a, 41a) (bus lanes, bus purchases, and prohibition of

road use by nonconforming vehicles) ; Pennsylvania v.

Environmental Protection Agency, 500 F. 2d 246, 261

(C.A.3) (inspection and maintenance programs, retro-

fitting, bikeways, bus lanes, and parking restrictions ) ."’

This Court has recognized similar indirect responsi-

bilities in closely analogous situations. It has held that

an airport, and not the airlines that use it, takes the

air easement over adjacent lands damaged by aircraft

17 It is not a novel idea that those who provide transportation

facilities for use by others are responsible for controlling the

manner in which the facilities are used. For instance, 45 U.S.C.

6 requires that “[a]ny common carrier * * * by railroad * * *

permitting to be hauled or used on its line any car in violation

of [federal safety requirements] * * * shall be liable to a pen-

alty of $250 for each and every such violation”. That statute

was applied in United States v. Northwestern Pac. R. Co.,

235 Fed. 965, 968-969 (N.D. Cal.), to hold the railroad owning

the tracks responsible for defective cars hauled by another over

its rails. The statute also applies to a State which operates a

railroad, United States v. California, 297 U.S. 175. Cf. 49 U.S.C.

(Supp. V) 1511(a) (airlines may not transport persons or

property unless permission to conduct security inspection is

granted).

noise (Griggs v. Allegheny County, 369 U.S. 84, 89).

The airplanes that created the noise were no more the

property of the airport owners than the private cars

are the property of the States. But the airport owner,

like the highway owner, indirectly caused the adverse

environmental effect and was legally responsible for

providing the remedy. Similarly, the Court has held

that a State is responsible under the federal common

law of nuisance for the discharge of sewage into public

waters, even though it is evident that the State did not

itself directly create the pollutants discharged. JIlinois

v. City of Milwaukee, 406 U.S. 91, 106-108. As the

State can be required to limit the adverse effects on

public waters of pollution discharged by others using

the sewer system, so it can be required to limit the

adverse effect on the public air of pollution discharged

by others using its highways. The principle remains the

same: an owner or operator of a facility is a polluter,

whether he causes the pollution directly or indirectly."

THE ADMINISTRATOR HAS AUTHORITY UNDER THE CLEAN

AIR ACT TO PROMULGATE REGULATIONS ENFORCEABLE

AGAINST THE STATES AS POLLUTERS.

As this Court stated in Train v. Natural Resources

Defense Council, Inc., 421 U.S. 60, 63-64, Congress

18 We recognize that when a State, private person, or corpo-

ration causes pollution indirectly, others share responsibility

for the pollution. But that means only that the federal controls

can be applied to each of the groups jointly responsible, not

that joint action insulates any group that bears a substantial

responsibility.

reviewed the disappointing performance of the States

under earlier statutes encouraging and assisting them

to take effective steps to control air pollution, and found

it necessary to approach the problem differently by

“taking a stick to the States” in the 1970 Amendments

to the Clean Air Act. Under these amendments, “the

States were no longer given any choice as to whether

they would meet [the] responsibility * * * to attain air

quality of specified standards, and to do so within a

specified period of time” (id. at 64-65). See also Union

Electric Co. v. Environmental Protection Agency, No.

74-1542, decided June 25, 1976, slip op. 9; Pennsyl-

vania v. Environmental Protection Agency, supra, 500

F. 2d at 258. One of the choices removed from the

States was whether they would conduct their own pol-

lution-causing activities in accordance with applicable

implementation plans—the congressional “stick” in-

cluded the grant of authority to the Administrator to

compel state compliance with such plans. In refusing

to recognize this basic change in approach, the courts

below misread the Act’’ and failed to recognize its

remedial purposes. See Abbott Laboratories v. Portland

18 They did so in order to avoid constitutional questions (Pet.

No. 909, App. 9a, 24a; Pet. No. 960, App. 27a-28a). But as

Judge Friendly points out, this technique of statutory construc-

tion is unlikely to reflect congressional intent (Friendly, “Mr.

Justice Frankfurter and the Reading of Statutes”, in Bench-

marks 210-212 (1976) ) : “It does not seem in any way obvious,

as a matter of interpretation, that the legislature would prefer

a narrow construction which does not raise constitutional

doubts to a broader one which does raise them. For there is

always the chance, usually a good one, that the doubts will be

settled favorably, and if they are not, the conceded rule of

Retail Druggists Assoc., Inc., No. 74-1274, decided

March 24, 1976; United States v. Republic Steel Corp.,

362 U.S. 482, 491; Weinberger v. Bentex Pharma-

ceuticals, 412 U.S. 645, 653.

A. SECTION 110 REQUIRES THE ADMINISTRATOR TO PRO-

MULGATE AN ADEQUATE IMPLEMENTATION PLAN IF A

STATE FAILS TO DO SO.

The requirement of Section 110 of the Act is abso-

lute: each State must have an implementation plan that

provides for the attainment of the primary ambient air

quality standards in its air quality control regions

within three years from the date the plan goes into ef-

fect (Section 110(a) (2) (A) (i)). See Union Electric

construing to avoid unconstitutionality will come into operation

and save the day. * * *

“Although questioning the doctrine of construction to avoid

constitutional doubts is rather like challenging Holy Writ, the

rule has always seemed to me to have almost as many dangers

as advantages. For one thing, it is one of those rules that courts

apply when they want and conveniently forget when they don’t

—some, perhaps, would consider that to be a virtue. * * *

Some considerations advanced in its favor, such as the awe-

some consequences of ‘a decree of unconstitutionality,’ over-

look that if the Court finds the more likely construction to be

unconstitutional, another means of rescue—the principle of

construing to avoid unconstitutionality—will be at hand. The

strongest basis for the rule is thus that the Supreme Court

ought not to indulge in what, if adverse, is likely to be only a

constitutional advisory opinion. While there is force in this,

the rule of ‘construing’ to avoid constitutional doubts should,

in my view, be confined to cases where the doubt is exceedingly

real. Otherwise this rule, whether it be denominated one of

statutory interpretation or, more accurately, of constitutional

adjudication—still more accurately, of constitutional nonadju-

dication—is likely to become one of evisceration and tergiver-

sation.” (Footnotes omitted.)

Co. v. Environmental Protection Agency, supra, slip

op. at 10-17. Extensions of time are permitted, but

only for up to a total of three years.” The States are to

develop the plans, and so long as the plan selected will in

fact attain and maintain the primary air quality stand-

ards, “the State is at liberty to adopt whatever mix of

emission limitations it deems best suited to its particu-

lar situation.” Train v. Natural Resources Defense

Council, Inc., 421 U.S. 60, 79.”'

Depending on the kind of pollution sources found in

a State and the severity of its pollution problems, at-

tainment of the primary standards by the statutory.

deadline may require control of State and Federal

sources as well as those owned by private parties.”

Moreover, to be adequate a plan may have to contain

requirements for control of pollution not only from con-

ventional State sources, such as incinerators, but also

from State-owned indirect sources, such as parking

garages and highways.

20 Section 110(e) authorizes the Administrator, upon appli-

cation of a Governor of a State, to extend the three-year period

by up to two years if the “necessary technology or other alter-

natives are not available or will not be available soon enough

to permit compliance within such three-year period.” Section

110(f) authorizes the Administrator to grant an additional

year’s extension, also for technological reasons, but only if

appropriate findings are made after an adjudicatory hearing.

21 The State must, however, include transportation controls

(and specifically periodic inspection and testing of motor vehi-

cles) in its plan if necessary to attain or maintain air quality

standards (Section 110(a) (2) (B),(G)). |

22 Section 118 of the Act (42 U.S.C. 1857f) requires that

federal installations conform to established emissions limita-

tions and compliance schedules. See Hancock v. Train, No. 74-

220, decided June 7, 1976.

The failure of a State to develop an adequate plan

does not excuse it from the requirement of Section

110(a) (2). That requirement remains absolute; the

State must have an adequate plan. In those circum-

stances, the Act does not allow the Administrator to

grant the State an additional extension of time or to

compromise timely attainment of the primary stand-

ards by approving plans that omit measures necessary

for that purpose. The Act simply commands the Admin-

istrator to prepare a plan “for a State” (Section 110

(c)). In doing so, he necessarily chooses among the

variety of emission limitations originally available to

the State.”

B. A SUBSTITUTE IMPLEMENTATION PLAN MAY INCLUDE

PROVISIONS APPLICABLE TO THE STATE AS A POLLUTER.

If control of state-operated sources of pollution is

necessary to attain the primary air quality standards

within the specified time, such controls must be in-

cluded in the State’s implementation plan, whether the

plan is promulgated by the State or the Administrator.

Nothing in the 1970 Amendments to the Clean Air Act

suggests that the Administrator, in promulgating

measures “for a State” under Section 110(c), is more

restricted than the State would have been in submitting

*’ As a practical matter, the Administrator will rarely make

choices inconsistent with those of the State. Instead, as he did

in these cases, he will supplement and modify the state choice

only as necessary to assure attainment of the ambient air

quality standards. See note 7, supra.

a plan for approval under Section 110(a).” Instead,

Section 110 treats identically measures adopted by a

State and measures promulgated by the Administrator ;

whether a plan is wholly adopted by a State, wholly

promulgated by the Administrator, or a mixture, it is

the “applicable implementation plan” (Section 110

(d)). Pet No. 75-1055, App. 20a-22a (District of

Columbia v. Train) ; Natural Resources Defense Coun-

cul, Ine. v. Environmental Protection Agency, 478

F. 2d 875, 888 (C.A. 1).

As the court in South Terminal Corporation v. Envi-

ronmental Protection Agency, supra, 504 F. 2d at 668,

determined :

The statutory scheme would be unwork-

able were it read as giving to EPA, when

promulgating an implementation plan

for a state, less than those necessary

measures allowed by Congress to a state

to accomplish federal clean air goals. We

do not adopt any such crippling inter-

pretation.

Other courts agree that EPA may regulate the States

in their role as polluters; as for example, when they

own and operate conventional sources such as incinera-

tors. See Brown v. Environmental Protection Agency

(Pet. No. 75-909, App. 10a—lla); District of Colur-

*4 The Administrator's choices may be more restricted in one

respect. Although a State may adopt more stringent measures

than necessary to reach the ambient air quality standards

(Section 116), the Administrator has no similar power to im-

pose such measures on the States; he must prescribe the least

burdensome means of achieving the ambient air quality stand-

ards. See also note 28, infra.

bia v. Train (Pet. No. 75-1055, App. 36a) ; Common-

wealth of Pennsylvania v. Environmental Protection

Agency, 500 F. 2d 246, 256-259 (C.A. 3); Friends

of the Earth v. Carey, 535 F. 2d 165 (C.A. 2); Friends

of the Earth v. Environmental Protection Agency, 499

F, 2d 1118, 1124 (C.A. 2); Metropolitan Washington

Coalition v. District of Columbia, 511 F. 2d 809

(C.A.D.C.).

Because EPA may regulate States in their role as

polluters, it may regulate the States in their role as

the owners and operators of polluting transportation

facilities. The Act itself requires state implementation

plans to provide for “periodic inspection and testing of

motor vehicles to enforce compliance with applicable

emission standards” (Section 110(a)(2)(G)) and for

other “transportation controls” (Section 110(a) (2)

(B)) to the extent necessary for timely attainment of

the ambient air quality standards.” As this language

and its legislative history” demonstrate, Congress in-

*° Moreover, as we discuss later (pp. 36-40, infra), Sections

113 and 304 clearly contemplate suits to compel States to

conform their pollution-creating activities to applicable im-

plementation plans, thus unmistakably indicating that Con-

gress intended that these plans would control State activities,

as well as those of private polluters.

*6 See, ¢.g., S. Rep. No. 91-1196, 91st Cong., 2d Sess. 2, 12-

14, 31 (1970). The Report states at p. 13:

The Committee recognizes that during the next sev-

eral years, the attainment of required ambient air

quality in many of the metropolitan regions of this

country will be impossible if the control of pollution

from moving sources depends solely on emission con-

trols. The Committee does not intend that these areas

be exempt from meeting the standards. Some regions

may have to establish new transportation programs

and systems combined with traffic control regulations

tended where necessary to require that States ad-

minister transportation control programs, particularly

inspection and maintenance programs. The courts in

District of Columbia v. Train (Pet. No. 75-1055, App.

30a-—33a) and Commonwealth of Pennsylvania v. En-

vironmental Protection Agency, supra, 500 F. 2d at

256-259, agree.”

Any possible doubt concerning the Administrator’s

authority to promulgate transportation control plans

of the type involved here has been resolved by Congress

itself. In legislation subsequent to the 1970 amend-

ments, Congress has acted to bar promulgation of

particular transportation control measures; but the

general strategy of requiring States to implement such

and restrictions in order to achieve ambient air qual-

ity standards for pollution agents associated with

moving sources,

The House Report reflects the same understanding (H.R. Rep.

No, 91-1146, 91st Cong., 2d Sess. 3-4 (1970)). The legislative

history is reviewed in Pennsylvania v. Environmental Pro-

tection Agency, supra, 500 F, 2d at 258-259, and District of

Columbia v. Train, Pet. No, 75-1055, App. 3la-33a. See also

Salmon, supra, 2 Colum. Jour. of Env. Law at 308-324. Vir-

tually every reference to how transportation control measures

are to be implemented places the responsibility on the States.

Thus, the legislative history cited by the court in Brown v.

Environmental Protection Agency, Pet. No. 75-909, App. 19a-

24a, concerning the mechanism for enforcing implementation

plans generally, is largely irrelevant.

*7 A number of States, including four of the respondents

here, adopted and submitted such measures as part of their

plans. See, ¢.g., 38 Fed. Reg. 10119-10120 (April 24, 1973)

(Arizona, Maryland, Virginia) ; 38 Fed. Reg. 11114 (May 4,

1973) (District of Columbia). See also note 7, supra.

measures, where necessary, was left unaltered.” This

alone indicates that Congress approved that strategy.

See Zemel v. Rusk, 381 U.S. 1, 11; Federal Energy

Administration v. Algonquin SNG, Inc., No. 75-3882,

decided June 17, 1976; Canada Packers Ltd. v. Atchi-

son T. & S. F. Ry. Co., 385 U.S, 188, 184. Cf. Train

v. Colorado Public Interest Research Group, Inc., No.

74-1270, decided June 1, 1976, slip op. 15-22.

There is also explicit legislative history to that

effect. The House version of the Energy Supply and

Environmental Coordination Act of 1974, 88 Stat. 246,

**In 1974, Congress amended the Act to preclude the Ad-

ministrator from requiring “surcharges” on parking and to

void previously promulgated requirements of that type. Sec-

tion 110(c) (2) (B), as added by Section 4(b) of the Energy

Supply and Environmental Coordination Act of 1974, Pub. L.

93-319, 88 Stat. 246, 42 U.S.C, (Supp. V) 1857c-5(c) (2) (B).

In the same amendments, Congress authorized the Adminis-

trator to defer requirements for review of new parking facili-

ties, with the understanding that such authority would in fact

be exercised. See Sections 110(c) (2) (A), 110(c) (2) (C);

H. R. Rep. No. 93-768, 98d Cong. 2d Sess. 88-90 (1974). Con-

gress made clear, however, that the Administrator remained

free to approve surcharge and parking review measures if

States submitted them, thus showing its awareness of the

difference between voluntary and compelled State action in

this area, Sections 110(c) (2) (B), 110(c)(2)(C). Because

Congress clearly focused on this difference in enacting the

foregoing amendments, its refusal to preclude compelled state

action on other transportation control measures is all the more

significant. In subsequent legislation, Congress imposed vari-

ous restrictions on the use of appropriated funds to administer

or promulgate measures involving regulation of parking fa-

cilities, but again imposed no restrictions on such EPA meas-

ures as inspection and maintenance and bus lane requirements.

See Section 510 of Pub. L. 93-563, 88 Stat. 1822, 1848; Section

407 of Pub. L. 94-116, 89 Stat. 581, 600; Section 406 of Pub. L.

94-378, 90 Stat. 1095, 1109.

257-258, contained a provision that would have pro-

hibited the Administrator from requiring States and

localities to create preferential bus and carpool lanes,

unless such a measure was subsequently authorized by

Congress, 119 Cong. Rec. 41300, 41305 (1973).” The

conference committee deleted the provision and ex-

plained its action as follows (¢.g., 8. Rep. No. 93-663,

93d Cong., lst Sess. 88-90 (1973) ):

The other related provision of the

House amendment has been modified to

provide that only parking surcharges

(rather than surcharges, management

of parking supply, and _ bus/carpool

lanes) must receive the explicit authori-

zation of the Congress before they may

legally be imposed by the Environmental

Protection Agency. The conference sub-

stitute would therefore continue to per-

mit preferential bus, carpool lanes to be

implemented by the Environmental Pro-

tection Agency as set forth in current

transportation control plans. In imple-

menting requirements for bus/carpool

lanes, the basic responsibility rests with

State and local governments and trans-

portation agencies * * *.

2° The sponsor of this amendment, Mr. Moss, offered it to

counteract, as he phrased it, the “order to provide carpool

lanes or bus lanes” applicable to “California, * * * Texas and

* * * some of the New England States.” 119 Cong. Rec, 41300

(1978). Those “orders” were the transportation control plans,

and the measures complained of are, in the case of California,

among those at issue in this case.

In adopting [restrictions involving

parking surcharges and review of new

parking facilities], the conferees do not

intend to question either the need for, or

the authority of the Administrator of

the Environmental Protection Agency to

impose, transportation control plans.

Congress’ failure to enact an amendment that would

have explicitly inhibited the Administrator from re-

quiring States to create bus lanes supports the Ad-

ministrator’s authority under the Act to require bus

lanes, and hence other transportation programs, to be

implemented by the States. See Train v. Colorado Pub-

lic Interest Research Group, Inc., No. 74-1270, decided

June 1, 1976 (slip op. 15-20); Zemel v. Rusk, 381

U.S. 1, 11.

C. SECTION 113 OF THE ACT AUTHORIZES THE ADMINIS-

TRATOR TO ENFORCE IMPLEMENTATION PLAN RE-

QUIREMENTS APPLICABLE TO THE STATE IN ITS ROLE

AS POLLUTER,.

The issue before this Court is the Administrator’s

authority to promulgate plans binding on the States,

not the means available for enforcing such plans.

Nevertheless, discussion of the enforcement sections of

the Act (Sections 113 and 304) is appropriate, both

because the court of appeals in No. 75-909 relied pri-

marily on its reading of Section 113” in concluding

that the Administrator lacked statutory authority to

promulgate the regulations at issue, and because both

sections, correctly interpreted, support the existence

of that authority.

Section 113 provides for federal enforcement of an

implementation plan when the State fails to enforce

it.” It distinguishes carefully between violations of a

%® Section 113(a)(1) provides that whenever the Adminis-

trator finds that “any person is in violation of any require-

ment of an applicable implementation plan,” he shall notify

the person and the State involved of his finding. If the viola-

tion is not corrected 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 violates or fails or refuses to comply with an order

or any requirement of an applicable implementation plan (Sec-

tion 113(b)).

*! Senator Muskie, in a “Summary of the Provisions of Con-

ference Agreement on the Clean Air Amendments of 1970”

which he provided to the Senate for its use in considering the

bill as reported out of conference, emphasized the primary re-

sponsibility of the States when he described the procedures

provided in Section 113 (116 Cong. Rec. 42385 (1970)):

Federal enforcement under section 113 leaves the

primary responsibility with the States for enforcing

requirements under implementation plans. The Ad-

ministrator can issue an abatement order to a polluter

or go to court seeking an injunction only after 30

days’ notice to an individual polluter [Section 113(a)

(1)], or 30 days after notifying the State that the Fed-

eral Government is generally assuming enforcement

powers in that State because of a widespread failure

of States’ enforcement [Section 113(a)(2)]. This

gives States 30 days in which to take appropriate ac-

tion themselves.

plan (Section 113(a)(1)), and the failure of a State

to enforce a plan (Section 113(a)(2)). This dichot-

omy, we submit, recognizes the difference, upon which

the Administrator relies, between the State as polluter

and the State as regulator, and permits the Adminis-

trator to compel the State, like any other owner-

operator of a pollution source, to comply with the

requirements of an applicable implementation plan.”

The language of Section 113(a) (1) is clear:

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

information available to him, the Ad-

ministrator finds that any person is in

violation of any requirement of an appli-

cable implementation plan, the Adminis-

trator shall notify the person in viola-

tion 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 Administrator may issue

an order requiring such person to comply

with the requirements of such plan or

he may bring a civil action in accord-

ance with subsection (b) of this section.

{Emphasis added. ]

82 While Section 113(c) provides for criminal sanctions, the

Administrator does not intend *o seek criminal penalties against

State officials. See BNA Environment Reporter, Current De-

velopments, v. 5, no. 21, p. 755 (September 20, 1974). His first

approach will be to obtain compliance with the provisions of

applicable implementation plans by means of administrative

orders pursuant to Section 113(a)(1), and administrative con-

ferences pursuant to Section 113(a) (4). If these efforts should

fail, the Administrator would then seek injunctive relief.

The term “person” includes a State (Section 302(e)),

and an “applicable implementation plan” includes a

substitute plan promulgated by the Administrator

(Section 110(d)).

The court in Brown (Pet. No. 75-909, App. 17a)

concluded that despite Section 302(e), the word “per-

son” as used in Section 113(a)(1) does not include a

State because both the person violating the Act and the

State must be notified of a violation.” But the fact that

Congress, in Section 113, required notification to the

State in its role as regulator could hardly mean that

Congress intended to exempt the State from Section

113 sanctions in its role as polluter. While the require-

ment of notice to the State as regulator may seem

superfluous when it is also receiving notice as a pollu-

ter, it is reasonable to expect that a state regulatory

agency, when notified of a violation by a state agency

responsible for the operation of a pollution source, will

take steps to bring the State into compliance. If both

the State official responsible for the polluting activity

(e.g., the incinerator manager) and the agency respon-

sible for pollution control (e.g., the state environmental

agency) are notified, both have an opportunity to

bring about compliance before the Administrator must

act.“ Section 113(a)(1) thus simply recognizes, as

33 Even under the Brown court’s analysis, the “person’”’ re-

ferred to in Section 113(a)(1) must sometimes be a State, since

the court recognized that the Act “permits sanctions against

a state that pollutes the air” (Pet. No. 75-909, App. lla). The

court evidently recognized the inconsistency in its analysis

(id. at 16a).

34In practice, it may not be necessary to send separate no-

tices, cf. Friends of the Earth v. Carey, 535 F. 2d 165, 174-176

(C.A. 2).

does the Administrator, that the State may act in two

roles—either as the owner-operator of a pollution

source, or as the enforcer of an implementation plan—

and that it is subject to federal compulsion only in the

former role.

This reading of Section 113(a) is confirmed by Sec-

tion 304, which provides for citizen suits against “any

person (including (i) the United States, and (ii) any

other governmental instrumentality or agency to the

extent permitted by the Eleventh Amendment to the

Constitution) who is alleged to be in violation of (A)

an emission standard or limitation * * *.”* From the

language used in clause (ii) it is clear that a State is a

“person” who may be sued under Section 304; other-

wise the reference to the Eleventh Amendment would

be meaningless. It would be extraordinary for Congress

to have permitted suits against States by citizens under

Section 304, but failed to provide the same authority

under Section 113 to the Administrator, who is respon-

sible for implementing the Act.**

35 The requirement that the State manage its roads in a way

which will control air pollution is an “emission standard or

limitation.” See Friends of the Earth v. Environmental Pro-

tection Agency, supra, 499 F. 24 at 1123-1124.

36 It is not significant that Section 304 refers expressly to a

governmental entity, while Section 113 does not. Congress evi-

dently wanted to preclude any claim that the Act lacked the

necessary “clear evidence of congressional purpose” to permit

citizen suits against a State. See Tribe, Jntergovernmental Im-

munities in Litigation, Taxation, and Regulation: Separation

of Powers Issues in Controversies about Federalism, 89 Harv.

L. Rev. 682, 689-691 (1976). No such problem exists with re-

gard to the federal actio--s contemplated by Section 113 (a) (1).

Id. at 685.

Rs me ee

II.

A STATE MAY CONSTITUTIONALLY BE REQUIRED TO OPER-

ATE ITS TRANSPORTATION SYSTEMS SO AS TO MINIMIZE

THE POLLUTION THOSE SYSTEMS CAUSE.

In National League of Cities v. Usery, No. 74-878,

decided June 24, 1976, the Court held that some state

activities, although apparently within the reach of Con-

gress’ power under the Commerce Clause because of

their effect on interstate commerce, are nevertheless

immune from federal regulation that “displace[s] the

States’ freedom to structure integral operations in

areas of traditional governmental functions * * *”

(slip op. at 18).*° Accordingly, the constitutionality of

the Clean Air Act’s direction that the States control the

pollution they cause, directly or indirectly, depends not

only on the traditional tests for determining whether

activities are within the reach of Congress’ power

under the Commerce Clause, but also on the impact of

the federal requirements on state sovereignty. We dis-

cuss first the effect of the state activities on interstate

commerce rather than what is or is not an “integral

governmental function” of a State (National League

of Cities v. Usery, supra, slip op. at 21); to do other-

wise would be to set “the Tenth Amendment on its

head by requiring that State power, or at any rate a

part of it, be defined prior to the definition of national

power * * *.” Corwin, The Commerce Power versus

States Rights 125-126 (1936).

37 However, such state activities might be subject to federal

regulation under some other constitutional provisions. See id.

at 18, n. 17; Fitzpatrick v. Bitzer, No. 75-251, decided June 28,

1976.

A. FEDERAL REGULATION OF THE CAUSES OF POLLUTION

IS WITHIN THE POWERS OF CONGRESS UNDER THE

COMMERCE CLAUSE.

The scope of the commerce power is broad enough to

permit the federal government to control the causes of

pollution. Pollution constitutes a burden on interstate

commerce in a variety of ways. Congress found, as it

stated in Section 101(a) (2) of the Act, that:

the growth in the amount and complex-

ity of air pollution * * * has resulted in

mounting dangers to the public health

and welfare, including injury to agricul-

tural crops and livestock, damage to and

the deterioration of property, and haz-

ards to air and ground transportation.

The commerce power permits the Congress to act to

protect against each of the dangers identified in the

findings. It may protect the national economy against

“inimical or destructive” forces, North American Co.

v. Securities & Exchange Commission, 327 U.S. 686,

705; prevent interference with transportation, Gibbons

v. Ogden, 9 Wheat. 1, 190-197; and promote the health

and welfare of the Nation’s citizens, Cleveland v.

United States, 323 U.S. 329, 333. Moreover, there can

be no doubt about Congress’ power under the Commerce

Clause to regulate activities that might be character-

ized as “local,” such as the release of pollutants, when

these have substantial interstate effects. E.g., Perez v.

United States, 402 U.S. 146; Heart of Atlanta Motel,

ee eee

Inc. v. United States, 379 U.S. 241, 255; Overstreet

v. North Shore Corp., £18 U.S. 125."

The existence of such effects here was amply demon-

strated during consideration of the Clean Air Amend-

ments of 1970.*° Photochemical oxidants (smog) and

hydrocarbons can cause physical ills such as tempo-

rary and permanent damage to lung functions, aggra-

vation of asthma, and eye, nose, and throat irritation;

they also cause damage to vegetation, clothing fabric,

rubber and dyes.*° Moreover, the effects are accelerat-

38 The Commerce Clause is broad enough to permit federal

controls over activities which indirectly affect interstate com-

merce. Wickard v. Filburn, 317 U.S. 111, 123-124; Gibbons v.

Ogden, supra, 9 Wheat. at 195-196, 203-206. Thus, Congress

may regulate indirect, as well as direct, pollution sources.

8° See Hearings on S. 3229, S. 3466, and S. 3546 (Air Pollu-

tion—1970, Parts 1-5) before the Subcommittee on Air and

Water Pollution of the Senate Committee on Public Works,

91st Cong., 2d Sess. 345-346, 349-352, 474-475, 573, 1189,

1193, 1213, 1219, 1281, 1351, 1479, 1490, 1576-1577, 1596 and

1639-1650 (1970) ; S. Rep. No. 91-1196, 91st Cong., 2d Sess. 1

(1970) ; H. R. Rep. No. 91-1146, 91st Cong., 2d Sess. 7 (1970) ;

116 Cong. Rec. 19204-19205 (1970) (Cong. Staggers); 116

Cong. Rec. 19208-19209 (1970) (Cong. Jarman); 116 Cong.

Rec. 19209-19210 (1970) (Cong. Rogers); 116 Cong. Rec.

19216 (1970) (Cong. Keith); 116 Cong. Rec. 32920-32922

(1970) (Sen. Baker); 116 Cong. Rec. 32919-32920 (1970)

(Sen. Spong) ; 116 Cong. Rec. 33091-33093 (1970) (Sen. Mur-

phy) ; 116 Cong. Rec. 33115-33117 (1970) (Sen. Cooper).

40 Department of Health, Education, and Welfare, No. AP-

63, Air Quality Criteria for Photochemical Oxidants, 10-3 to

10-13 (March, 1970). In 1974, a study performed by the Na-

tional Academy of Sciences estimated that air pollution causes

on the order of fifteen thousand deaths, fifteen million days of

restricted activity, and seven million days spent in bed each

year in the United States and that as many as four thousand

deaths and four million days of illness each year may be attrib-

uted to automobile emissions alone. Committee Print, Serial

ee ee a ee

ing. In 1963, the estimated annual costs of health

problems related to air pollution exceeded two billion

dollars; by 1968 they were more than six billion dol-

lars,” and by 1975 they were more than ten billion

dollars.” In 1975, the total cost of air pollution, includ-

ing damage to buildings and vegetation, was estimated

to be more than twenty-six billion dollars.“

The futility of leaving control of air pollution exclu-

sively to the States is clear. As this Court has noted,

the 1970 Clean Air Amendments responded to the fail-

ure of the States to cope with the mounting problems,

despite offers of federal technical and financial assist-

ance. T'rain v. Natural Resources Defense Council, Inc.,

421 U.S. 60, 64. Cars frequently travel across state

lines, and smog and other pollutants drift hundreds of

miles from the city of origin; no one State or locality

No. 93-24, Senate Committee on Public Works, Air Quality and

Automobile Emission Control, Report by the Coordinating

Committee on Air Quality Studies, National Academy of Sci-

ences, National Academy of Engineering, 93d Cong., 2d Sess.,

pp. 11-18 (1974) (hereafter “NAS report”). The same study

estimated that particularly susceptible groups in the popula-

tion constitute about forty million people, or about one fifth

of the total population. /d. at 7-8.

‘| Barrett and Waddell, Cost of Air Pollution Damage: A

Status Report, Environmental Protection Agency 11 (Febru-

ary, 1973).

* Id. at 59.

* Leung and Klein, The Environmental Control Industry, An

Analysis of Conditions and Prospects for the Pollution Control

Equipment Industry 24 (December, 1975).

“ Ibid.

es ee ee

can solve the problem affecting its citizens.“ In these

circumstances, Congress rationally concluded that the

lack of effective controls will unduly burden interstate

commerce, and that this burden should be removed by

the establishment of an effective national program.

In light of the foregoing considerations, the courts

have upheld Congress’ authority to regulate activities

causing air pollution. South Terminal Corporation v.

Environmental Protection Agency, supra, 504 F. 2d

at 677; Pennsylvania v. Environmental Protection

Agency, supra, 500 F. 2d at 259; District of Columbia

v. Train, Pet. No. 75-1055, App. 38a.

B. THE SEPARATE AND INDEPENDENT EXISTENCE OF THE

STATES IS NOT HERE THREATENED.

While the Commerce Clause, together with the

Necessary and Proper Clause, serves as a solid basis

for the regulations at issue, under National League

of Cities v. Usery, supra, the effect of the federal regu-

lations on the functioning of the States as sovereign

entities must also be assessed. Only if the federal in-

trusion threatens the separate and independent exist-

ence of the States and their ability to function effec-

tively in a federal system is the federal regulation

“ E.g., 41 Fed, Reg. 28635 (July 12, 1976). See also State

Air Pollution Implementation Plan Progress Report, July 1

to December 31, 1975, Environmental Protection Agency, pp.

46-47 (April, 1976); H.R. Rep. No. 94-1175, 94th Cong., 2d

Sess. 118 (1976).

unconstitutional despite the basis for Congress’ action

in the Commerce Clause (slip op. at 11, 17, 21).“

This is a stringent test and the Court intended it

to be such. Ours is not simply a federal! system. It is a

democratic system. The judiciary has never been the

only—or even the primary—safeguard against regu-

lation under the Commerce Clause" which, although

enacted by the elected representatives in Congress,

might have seemed to others excessive or unduly

intrusive.“

In National League of Cities, “the substantial costs

imposed upon the States” and Congress’ “displacement

of state decisions” regarding how state and local gov-

6 The States’ inherent sovereignty is also protected by the

limitations on the reach of the Commerce Clause: “|{t|he sub-

ject of federal! power is still ‘commerce,’ and not all commerce

but commerce with foreign nations and among the several

States.” Santa Cruz Co. v. National Labor Relations Board,

303 U.S. 453, 466. But this case does not involve federal legis-

lation affecting an important state function and having only

an attenuated connection to matters within the federal com-

merce power. Moreover, there is in this case a clear expression

of congressional intent to control state-caused pollution. Com-

pare United States v. Bass, 404 U.S. 336, 349.

‘7 Chief Justice Marshall noted the primary safeguards over

the exercise of the commerce power in Gibbons v. Ogden, 9

Wheat. 1, 197: “The wisdom and the discretion of Congress,

their identity with the people, and the influence which their

constituents possess at elections are, in this, as in many other

instances, as that, for example, of declaring war, the sole re-

traints on which they have relied, to secure them from its

abuse. They are the restraints on which the people must

often rely solely, in all representative governments.”

** Wechsler, The Political Safeguards of Federalism: The

Role of the States in the Composition and Selection of the Na-

tional Government, 54 Colum. L. Rev, 543, 558-559 (1954) ;

Tribe, supra n. 36, at 694-695.

ernments traditionally “have arranged their affairs”

represented, in the Court’s view, a threat to state

sovereignty sufficient to render the 1974 Fair Labor

Standards Act Amendments unconstitutional (slip op.

13, 15). Neither factor is present in this case and

the regulations at issue represent no such threat.

If upheld, the federal legislation involved in National

League of Cities would, the Court stated, “significantly

alter or displace the States’ abilities to structure

employer-employee relationships in such areas as fire

prevention, police protection, sanitation, public health,

and parks and recreation. These activities are typical

of those performed by state and local governments in

discharging their dual functions of administering the

public law and furnishing public services. Indeed, it is

functions such as these which governments are created

to provide, services such as these which the States have

traditionally afforded their citizens” (slip op. at 17;

footnote omitted).

In this case, however, the regulations at issue do

not affect the full range of fundamental state activ-

ities; instead, they require only that the State operate

its highways consistently with federal standards.”

Rather than affecting almost all state employees and

thereby reaching substantially all state activities, as

the wage and hour laws did in National League of

Cities (slip op. 2, 4, 18-14), the regulations here are

Cf. United States v. California, 297 U.S. 175, holding that

a state’s operation of a railroad must be consistent with fed-

eral standards based on the Commerce Clause. The Court in

National League of Cities (slip op. at 20, n. 18) specifically

approved the holding in United States v. California, supra.

}

eS Se

narrowly drawn to affect only that small part of the

State’s transportation policy which specifically creates

the pollution problem. Moreover, the degree of federal

intrusion is minimized because state policy is modified

only to the extent necessary to attack the problem: the

States are not to permit the operation on their high-

ways of non-conforming vehicles, and are to encour-

age the use of buses in narrowly circumscribed ways.”

Federal intrusion is also minimized because the State

is first given the opportunity to specify the methods by

which it will attain the federal air quality standards;

federal requirements are imposed only if the methods

specified by the State will not achieve the federal

standards. In fact, the federal requirements generally

reflect the State’s choice of the methods it prefers for

attaining the ambient air quality standards;" the Ad-

ministrator’s regulations are then designed primarily

to assure that the State’s policy choices will in fact be

carried out. Even after the Administrator has pro-

mulgated a substitute pollution control plan for the

State, the State remains free to revise the plan if it

prefers to use a different pollution control strategy to

meet the national air quality standards.

50 Moreover, the federal requirements apply only in those

particular areas within the States where the air pollution prob-

lems are most serious.

5! In developing substitute transportation plans, the Admin-

istrator considered “the severity of the pollution problem, the

availability of control measures, the existing local control ac-

tivities and conditions, the State transportation plans, the pub-

lic hearing comments, the disruptive impact of certain meas-

ures, and the pollutant controlled.* * * If the States have sub-

mitted plans that are in part approvable, the Administrator has

ee a

Thus, the means by which the federal standards are

met remains within the control of the States—the fed-

eral government supplies the standards but it specifies

the means only when the State declines to do so. It is

anomalous to conclude, as did the courts below (Pet.

No, 75-909, App. 30a—32a; Pet. No. 75-1055, App. 44a

n. 26. Cf. Pet. No. 75-960, App. 30a-32a), that respect

for state sovereignty forbids this carefully limited in-

trusion into state control over the operation of its

highways, and permits instead only the substantially

greater intrusion that would be involved if the federal

government were itself to inspect and police all private

vehicles using state highways, operate buses, and itself

mark bus lanes.

Furthermore, in terms of increased costs, the pollu-

tion control requirements at issue here, unlike the

wage and hour laws involved in National League of

Cities (slip op. at 12), will not have a significant finan-

cial impact on the States. These requirements will

therefore not force the States to reconsider the alloca-

tion of their resources, generally restructure the means

by which they arrange their affairs, or curtail the serv-

ices they provide their citizens.

None of the required programs need be expensive.

A State may simply add the inspection for compliance

with emission control standards to its existing periodic

attempted to promulgate measures that supplement the ap-

proved portions | of | the measures included in the plan the State

is expected to submit. The Administrator has also made many

changes based upon constructive public hearing testimony on

the proposed plans.” 38 Fed. Reg. 30628 (November 6, 1973).

See note 7, supra.

automobile inspection program,” or it may contract

with a private company to conduct the inspections, as

Arizona has done (Ariz. Rev. Stat., Section 36-1775A

(1974) )." In either case, fees may be charged the auto-

mobile owners. Indeed, in States that have a fee system,

the inspection programs have generally returned a net

profit. See Status of Safety and Emissions Inspection in

the Fifty States (February 1976), Automotive Parts &

Accessories Association.” The establishment of exclu-

sive bus lanes is not expensive if existing lanes are set

aside for bus use, as has been done in the downtown

streets of Washington, D.C., by simply painting sym-

8 As of February 1976, ten States in which the applicable

implementation plans require inspection and maintenance pro-

grams had ongoing periodic passenger vehicle safety inspec-

tion programs; five such States had limited programs (¢.g.,

spot checks, inspections on vehicle transfers) and two had no

such programs. See Status of Safety and Emissions Inspection

in the Fifty States (February, 1976), Automotive Parts & Ac-

cessories Association.

58 At least eight other inspection and maintenance programs

are currently in operation. Shutler, Overview of Inspection/

Maintenance (1 M), Proceedings of the Fourth North Amer-

ican Motor Vehicle Emission Control Conference 102-104

( November 5-7, 1975).

* Section 105 (42 U.S.C. 1857c) provides grants for plan-

ning, developing, establishing, and maintaining programs for

the prevention and control of air pollution. This provision re-

futes the assertion of petitioners in No. 75-1050, that the

federal government has attempted to impose on the States the

entire financial burden of controlling pollution. Instead, fed-

eral assistance to the States’ efforts to control pollution has

been steadily increasing, Train v. Natural Resources Defense

Council, Inc., supra, 421 U.S. at 68-64. In fiscal year 1975, state

air pollution control agencies received more than 52 million

dollars in federal support. Progress in the Prevention and

Control of Air Pollution in 1975, Annual Report of the Admin-

istrator of the Envirgnmental Protection Agency to the Con-

gress of the United States, 139 (1975).

SS SS —i‘“—s—

bols and erecting signs. And state investment in addi-

tional buses is insignificant in relation to the kind of

financial impact considered in National League of

Cities.”

Thus, the costs to the States of limiting the pollution

resulting from the use of state highways is not remotely

comparable to the costs of complying with the wage

and hour provisions involved in National League of

Cities, and will not limit state choices concerning the

proper allocation of resources in the way this Court

found objectionable in that case. Indeed, if the esti-

mates of the savings to be anticipated from achieving

the primary air quality standards are credited,” com-

pliance with the federal requirements may lead to sav-

ings in state expenditures for health, welfare and care

of property that would more than offset the costs of

the emission control programs.

If the regulations involved in this case need any fur-

ther justification, it is supplied by the fact that “[t]he

enactment at issue * * * was occasioned by an extremely

serious problem which endangered the well-being of all

55 None of the regulations at issue requires construction of

bus lanes, but if that were necessary, federal aid is authorized,

23 U.S.C. (Supp. V) 142(a) (1) ; Pub. L. 93-643, 88 Stat. 2281,

Section 120.

°6 Here again, substantial federal assistance is available. The

Urban Mass Transportation Act of 1964, 78 Stat. 302, as

amended, 49 U.S.C. 1601 et seq., 49 U.S.C. (Supp. V) 1603(a),

provides for federal grants of up to 80 per cent of the costs of

public buses; see also 23 U.S.C. (Supp. V) 142(a) (2).

5’ The National Academy of Sciences has concluded that, tak-

ing total costs into account, the Nation could save from 2.5 to

10 billion dollars annually if automobile emissions were re-

duced so that the primary ambient air quality standards were

achieved. NAS report, supra n. 40, at pp. 15, 121; see also H.R.

Rep. No. 94-1175, 94th Cong., 2d Sess. 208 (1976).

the component parts of our federal system and which

only collective action by the National Government

might forestall.” The quoted statement from National

League of Cities (slip op. at 18) explained in part why

the Court believed Fry v. United States, 421 U.S. 542,

was correctly decided.” Fry upheld a wage freeze pur-

suant td the Economic Stabilization Act of 1970 as

applied to state employees. The threat to the Nation

from air pollution poses an emergency quite as serious

as the threat of inflation, Union Electric Co. v. Envi-

ronmental Protection Agency, No. 74-1542, decided

June 25, 1976, slip op. 9, 8-17, and one quite as intract-

able in the absence of federal action, see Train v. Nat-

ural Resources Defense Council, Inc., supra, 421 U.S.

at 63-64." Furthermore, municipal incinerators are

58 The Court also pointed out that Fry dealt with a tempo-

rary enactment (slip op. 19). The controls involved here may

also be temporary. The period for which transportation con-

trols will be necessary will vary with the seriousness of the

problem in a particular area. In some areas, they may be re-

quired only until the air quality standards are attained; in

others, they may be necessary for longer periods to maintain

air quality. And, of course, a State may be able to shorten the

period in which controls are in effect by revising the plan in

order to achieve the required air purity more quickly.

59 The national ambient air quality standard for photochem-

ical oxidants has been exceeded in Los Angeles on two to three

hundred days per year, sometimes by a factor of seven, based

on data from a monitoring network that probably gave con-

servative results. NAS report, supra n. 40, at 48. And frequent

violations of the ambient standards are not confined to Los

Angeles, or even to large cities; a study of small towns in Mary-

land, Ohio, and Pennsylvania showed that ambient air quality

standards have been exceeded about fifty percent of the time.

State Air Pollution Implementation Plan Progress Report,

July 1 to December 31, 1975, Environmental Protection Agen-

cy 47 (April, 1976).

EN a en, ee

major sources of particulate matter. Municipal power

plants emit substantial amounts of sulfur dioxide. And

smog pollution arises primarily from public streets and

highways due to the operation of automobiles. Accord-

ingly, the compliance of state facilities is absolutely

essential to achieve the statutory purpose of protecting

the public health by a date certain.

All that remains is the objection, not specifically

mentioned in National League of Cities, that the fed-

eral rules require affirmative state action.” This is not

a valid constitutional objection. As the Court held in

Testa v. Katt, 330 U.S. 386, 391: “[{T]he Constitution

and the laws passed pursuant to it are the supreme laws

of the land, binding alike upon states, courts, and the

people. * * * [T]he obligation of states to enforce these

federal laws is not lessened by reason of the form in

which they are cast or the remedy which they pro-

vide.” Indeed, the form used here—federal regulations

to be promulgated only after state default—represents

less of an intrusion on state sovereignty than the tradi-

tional forms of preemption (see, e.g., the National

Traffic and Motor Vehicle Safety Act, 15 U.S.C. 1381

et seq., 15 U.S.C. 1392(d) ; Chrysler Corp. v. Tofany,

419 F. 2d 499 (C.A. 2), or grants-in-aid (see, e.g., the

Federal Aid Highways Act, 23 U.S.C. 101 et seq., 23

U.S.C. (Supp. V) 154 (88 Stat. 2286) ). See Pennsyl-

vania v. Environmental Protection Agency, supra, 500

F. 2d at 262-263."

% Pet. No. 75-1055, App. 48a—44a; Pet. No. 75-909, App.

27a—32a.

*! It is clear tnat federal regulations under the Commerce

Clause can preempt traditional state functions. See, e.g., Sani-

tary District of Chicago v. United States, 266 U.S. 405 (sewage

The activity required of the States is, in any event,

minimal. A State must take three steps to comply with

the federal regulations requiring an inspection and

maintenance program.” First, although the federal reg-

ulations establish the standards that must be met and

the procedures to be followed (see, e.g., Pet. No. 1055,

App. 62a-65a), the State must set up the program

—either by contracting for its implementation by a

private organization, or by delegating the responsibil-

ity to a state agency, and deciding such matters as

the location of inspection stations, their hours of opera-

tion, and personnel rules.* Often, existing state laws

will provide adequate authority for these state actions.

If not, the Clean Air Act and the EPA regulations

thereunder provide the authority. Nothing in the regu-

lations requires a State to enact legislation.“ Second,

disposal) ; Heart of Atlanta Motel, Inc. v. United States, 379

U.S. 241, and Katzenbach v. McClung, 379 U.S. 294 (regula-

tion of motel and restaurant operations) ; Lodge 76, Interna-

tional Association of Machinists v. Wisconsin Employment Re-

lations Commission, No. 75-185, decided June 25, 1976 (regu-

lation of labor-management relations); City of Burbank v.

Lockheed Air Terminal, Inc., 411 U.S. 624, 638 (control of

airport noise).

62 The steps required for implementation of the other meas-

ures would be similar but simpler; for instance, establishment

of the exclusive bus lanes merely requires providing adequate

markings, and then enforcing the restrictions in the same way

as any other traffic controls.

63 The State may be required to expend funds, as it frequently

will when complying with federal requirements imposed pursu-

ant to the Commerce Clause; United States v. California,

supra; pp. 49-51, supra.

64 Accordingly, no sanctions could be imposed on a State for

its failure to legislaie, and the Fourth Circuit’s analysis (Pet.

No. 75-960, App. 29a—32a) is largely irrelevant.

the State must deny registration to vehicles that fail

the inspection, as they now deny registration to vehicles

that fail state safety inspections (see note 52, supra).

See, e.g., Pet. No. 75-1055, App. 40a—41a. Finally, the

operation of any vehicle after registration has been

denied because of such non-compliance would be penal-

ized under the applicable state registration law, see,

e.g., D.C. Code, Title 40, ch. 2, Sections 205 and 206

(1973 ed.).

In sum, the absence of any broad interference with

state policies; the lack of any substantial impact on

state budgets; the need to achieve the essential national

goal of reducing air pollution; the fact that this can be

done only through national action; the carefully lim-

ited intrusion into an area (pollution control) that had

been left to the States; and the great deference shown

to the State’s choice of the methods for achieving air

quality, with the EPA Administrator imposing a plan

only if the State defaults—all these factors distinguish

National League of Cities and demonstrate that the

federal regulations in issue not only are valid under

the Commerce Clause, but also represent national ac-

tion in the great tradition of that constitutional provi-

sion.

It is no answer to say that because the States have

exercised control over the use of their highways” they

have the exclusive authority to determine whether and

to what extent the resulting air pollution should be con-

66 When the Constitution was adopted, private ownership

and management of turnpikes was widespread, and local gov-

ernments generally felt unequal to the task of providing public

highways. Evans, Private Turnpikes and Bridges, 50 Ameri-

can Law Review 527 (1916). Cf. Hendrick v. Maryland, 235

U.S. 610.

trolled. Even if control of the highways is an “integral

governmental function,” control of air pollution is not.

States have exercised authority over waste disposal but

a State is not thereby immunized from compliance with

federal air pollution controls applicable to a municipal

incinerator; nor is it immunized if the incinerator is

operated by a private contractor. In any event, whether

a particular function is reserved exclusively to the

States cannot be decided merely on the basis of how one

characterizes the particular function in terms of state

sovereignty. That would ignore the power of Congress

to legislate in the national interest under the Com-

merce Clause in order to meet national problems that

pay no heed to state boundaries.

We thus agree with Mr. Justice Blackmun, concur-

ring in National League of Cities, that the Court’s

opinion in that case ‘‘does not outlaw federal power in

areas such as environmental protection, where the fed-

eral interest is demonstrably greater and where state

facility compliance with imposed federal standards

would be essential.”

Ill.

THE COMMONWEALTH OF VIRGINIA IS NOT REQUIRED TO

BREACH THE WASHINGTON METROPOLITAN AREA

TRANSIT AUTHORITY COMPACT.

The Commonwealth of Virginia contends that EPA

is requiring it to purchase buses in contravention of its

duties under the Washington Metropolitan Area

Transit Authority Compact, Pub. L. 89-774, 80 Stat.

1324, establishing the Washington Metropolitan Area

Transit Authority (WMATA). But the Common-

wealth misreads the applicable regulation and the

opinion of the court below.

The regulation at issue, 40 C.F.R. 52.2435(e),® re-

quires the Commonwealth and WMATA to certify to

EPA that the Commonwealth or its local governments

have made commitments pursuant to the terms of the

Compact that are adequate, together with the commit-

ments of the other participants in the Compact, to fund

the necessary purchases. The regulation does not require

the Commonwealth by itself to purchase the buses. The

court below did not rewrite 40 C.F.R. 52.2435 to impose

solely upon the Commonwealth the obligation to pur-

66 40 C.F.R. 52.2435(e) provides:

(e) With respect to the measure for increased bus

fleet and service approved in § 52.2423. The Common-

wealth of Virginia shall no later than January 31,

1974, submit a compliance schedule to put the program

in effect. The compliance schedule shall, at a mini-

mum, provide that the Commonwealth of Virginia

shall, on or before March 1, 1974, submit to the Ad-

ministrator a statement, signed both by a representa-

tiv: of the Commonwealth of Virginia and by a

representative of the Washington Metropolitan Area

Transit Authority (WMATA) indicating that, in the

judgment of both of them, financial commitments

have been made by the Commonwealth of Virginia or

by its local governments for the purchase of buses.

This statement, when taken in conjunction with the

commitments made by the District of Columbia and

the State of Maryland, must be sufficient to enable

WMATA to purchase in the fiscal year beginning the

next July 1 the number of buses indicated below:

Fiscal Year 1975—175 buses

Fiscal Year 1976—150 buses

Fiscal Year 1977—150 buses

The statement shall also indicate that WMATA has

in fact committed to purchase that number of buses.

chase the necessary buses. The court merely upheld the

regulation (Pet. No. 1055, App. 57a), specifically not-

ing that it required the submission of assurances that

Virginia and Maryland “or their local governments,”

together with the District of Columbia, have made the

necessary financial commitments (ibid. )

The Commonwealth’s current disavowal of any fi-

nancial responsibility for WMATA projects (Pet. No.

75-1050, p. 12) is inconsistent with the transportation

plan it submitted to EPA. That plan, like those of

Maryland and the District of Columbia, contemplated

the purchase of new buses as a part of a program to

improve mass transit facilities. F.g., 38 Fed. Reg.

33706 (December 6, 1973). The regulation to which

the Commonwealth objects, therefore, does not in this

respect impose any duties on the Commonwealth other

than those the Commonwealth itself indicated it could

perform.”

Finally, we submit that it is misleading to focus on

the Commonwealth's responsibility for bus service in

the affected area. The Commonwealth concedes that it

owns and maintains its highways (Pet. No. 75-1050,

p. 10). The focus should be on its responsibility to take

action to reduce the air pollution that results from the

motor vehicle traffic thus facilitated and encouraged.

* The Commonwealth's original understanding of its powers

seems clearly correct, The Commonwealth participates in

WMATA through the Northern Virginia Transportation Dis-

trict, which is authorized by Section 18 of the Compact, 80

Stat. 1332, to make commitments for the acquisition of transit

facilities. The District's enabling legislation (Code of Va., Title

15.1, Ch. 32. § 15.1-1358(e); Ch. 631, Va. Acts of Assembly,

1964) permits it to accept state grants for such purposes.

Providing additional buses (or sharing in the cost of

their acquisition) is simply one measure by which this

kind of air pollution can be reduced. The Common-

wealth’s responsibility to take such actions flows from

its ownership of the highways and is not diminished

by the particular arrangements it has made for provi-

sion of bus service.

CONCLUSION

For the foregoing reasons, the judgments of the

courts of appeals for the ninth and fourth circuits

should be reversed, and the judgment of the court of

appeals for the District of Columbia circuit should be

reversed insofar as it prohibits the Administrator from

requiring a State to implement necessary transporta-

tion control measures, and affirmed in all other respects.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

PETER R. TAFT,

Assistant Attorney General.

A. RAYMOND RANDOLPH, JR.,

Deputy Solicitor General.

HARRIET S. SHAPIRO,

Assistant to the Solicitor General.

EDMUND B, CLARK,

BRUCE J. CHASAN,

NEIL T. PROTO,

MICHAEL D., GRAVES,

Attorneys.

G. WILLIAM FRICK,

General Counsel,

JOHN E, BONINE,

Associate General Counsel,

GERALD K. GLEASON,

Deputy Associate General Counsel,

Environmental Protection Agency.

SEPTEMBER 1976.

APPENDIX

Constitutional Provisions and Statutes 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:

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 of the Clean

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

Air Amendments of 1970, 84 Stat. 1676, 42 U.S.C. 1857

et seq., as amended by Section 302, 85 Stat. 464 and

(1A)

Sections 4 and 6 of the Energy Supply and Environmen-

tal Coordination Act of 1974, Pub. L. No. 93-319, 88

Stat. 256 (42 U.S.C. (Supp. V)), provide in relevant

part:

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

FINDINGS AND PURPOSES

(a) The Congress finds—

(1) that the predominant part of the Nation’s popu-

lation is located in its rapidly expanding metropolitan

and other urban areas, which generally cross the

boundary lines of local jurisdictions and often extend

into two or more States:

(2) that 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 to the public

health and welfare, including injury to agyiultural

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 con-

trol air pollution.

(b) The purposes of this title are—

(1) to protect and enhance the quality of the Na-

tion’s air resources so as to promote the public health

and welfare and the productive capacity of its popula-

tion;

(2) to initiate and accelerate a national research

and development program to achieve the prevention

and control of air pollution;

(3) to provide technical and financial assistance to

State and local governments in connection with the

development and execution of their air pollution pre-

vention 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. 1857¢-2)

AIR QUALITY CONTROL REGIONS

(a) Each State shall have the primary responsibility

for assuring air quality within the entire geographic

area comprising such State by submitting an imple-

mentation plan for such State which \ ill specify the

manner in which national primary and secondary am-

bient air quality standards will be achieved and main-

tained within each air quality control region in such

State.

Section 109 (42 U.S.C. 1857¢e—4)

NATIONAL AMBIENT AIR QUALITY STANDARDS

(a) (1) The Administrator—

(A) within 30 days after the date of enactment of

the Clean Air Amendments of 1970, shall publish pro-

posed regulations prescribing a national primary am-

bient air quality standard and a national secondary

ambient air quality standard for each air pollutant for

which air quality criteria have been issued prior to

such date of enactment; and

(B) after a reasonable time for interested persons

to submit written comments thereon (but no later than

90 days after the initial publication of such proposed

standards) shall by regulation promulgate such pro-

posed national primary and secondary ambient air

quality standards with such modifications as he deems

appropriate.

(2) With respect to any air pollutant for which air

quality criteria are issued after the date of enactment

of the Clean Air Amendments of 1970, the Administra-

tor shall publish, simultaneously with the issuance of

such criteria and information, proposed national pri-

mary and secondary ambient air quality standards for

any such pollutant. The procedure provided for in para-

graph (1)(B) of this subsection shall apply to the pro-

mulgation of such standards.

(b)(1) National primary ambient air quality stand-

ards, prescribed under subsection (a) shall be ambient

air quality standards the attainment and maintenance

of which in the judgment of the Administrator, based

on such criteria and allowing an adequate margin of

safety, are requisite 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) 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 wel-

fare from any known or anticipated 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 promulgated.

Section 110 (42 U.S.C. (and Supp. V) 1857¢-5)

IMPLEMENTATION PLANS

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

public hearings, adopt and submit to the Administra-

tor, within nine months after the promulgation of a

national primary ambient air quality standard (or any

revision thereof) under section 109 for any air pollu-

tant, a plan which provides for implementation, main-

tenance 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 Administrator (either as a part of a

plan submitted under the preceding sentence or sepa-

rately) within nine months after the promulgation of

a national ambient air quality secondary standar® (or

revision thereof), a plan which provides for implemen-

tation, maintenance and enforcement of such second-

ary standard in each air quality control region (or

portion thereof) within such State. Unless a separate

public hearing is provided, each State shall consider its

plan implementing such secondary standard at the

hearing required by the first sentence of this para-

graph.

(2) The Administrator shall, within four months

after the date required for submission of a plan under

paragraph (1), approve or disapprove such plan or

each portion thereof. The Administrator shall approve

such plan, or any portion thereof, if he determines 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 standard, it provides for

the attainment of such primary standard as expedi-

tiously as practicable but (subject to subsection (e)) in

no case later than three years from the date of ap-

proval of such plan (or any revision thereof to take

account of a revised primary standard); and (ii) in

the case of a plan implementing a national secondary

ambient air quality standard, it specifies a reasonable

time at which such secondary standard will be attained ;

(B) it includes emission limitations, schedules, and

timetables for compliance with such limitations, and

such other measures as may be necessary to insure at-

tainment and maintenance of such primary or second-

ary standard, including, but not limited to, land-use

and transportation controls;

eration of appropriate devices, methods, systems, and

procedures necessary to (i) monitor, compile, and ana-

lyze data on ambient air quality and, (ii) upon request,

make such data available to the Administrator;

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

ments of paragraph (4), for review (prior to construc-

tion or modification) of the location of new sources to

which a standard of performance will apply;

(E) it contains adequate provisions for intergovern-

mental cooperation, including measures necessary to

ee Le

A RR EOS AS OF aR BAe ete EN ee

insure that emissions of air pollutants from sources

located in any air quality control region will not inter-

fere with the attainment or maintenance of such pri-

mary or secondary standard in any portion of such

region outside 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 au-

thority to carry out such implementation plan, (ii) re-

quirements for installation of equipment by owners or

operators of stationary sources to monitor emissions

from such sources, (iii) for periodic reports on the na-

ture and amounts of such emissions; (iv) that such

reports shall be correlated by the State agency with any

emission limitations or standards established pursuant

to this Act, which reports shall be available at reason-

able times for public inspection; and (v) for authority

comparable to that in section 303, and adequate con-

tingency plans to implement such authority;

(G) it provides, to the extent necessary and practi-

cable, for periodic inspection and testing of motor vehi-

cles to enforce compliance with applicable emission

standards; and

(H) it provides for revision, after public hearings,

of such plan (i) from time to time as may be necessary

to take account of revisions of such national primary

or secondary ambient air quality standard or the avail-

ability of improved or more expeditious methods of

achieving such primary or secondary standard; or (ii)

whenever the Administrator finds on the basis of infor-

mation available to him that the plan is substantially

inadequate to achieve the national ambient air quality

primary or secondary standard which it implements.

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

sion 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 hear-

ings.

(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 implementation plans

[sic] and report to the State on whether such plans can

be revised in relation to fuel burning stationary 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 section. 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 hearing, be approved by the Administrator if

the revision 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

disapprove 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 main-

tenance within any air quality control region (or por-

tion thereof) within such State of a national ambient

air quality primary or secondary standard, and (B)

require that prior to commencing construction or modi-

fication of any such svuurce, the owner or operator

thereof shall submit to such State such information as

may be necessary to permit the State to make a deter-

mination under clause (A).

(b) The Administrator may, wherever he deter-

mines necessary, extend the period for submission of

any plan or portion thereof which implements a na-

tional secondary ambient air quality standard for a

period not to exceed eighteen months from the date

otherwise required for submission of such plan.

(c)(1) The Administrator shall, after consideration

of any State hearing record, promptly prepare and pub-

lish proposed regulations setting forth an implementa-

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

(A) The State fails to submit an implementation

plan for any national ambient air quality primary or

secondary standard within the time prescribed.

(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,

by the Administrator or such longer period as he may

prescribe, to revise an implementation plan as required

10A

pursuant to a provision of its plan referred to in sub-

section (a) (2)(H).

If such State held no public hearing associated with

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

istrator shall provide opportunity for such hearing

within such State on any proposed regulation. The Ad-

ministrator shall, within six months after the date re-

quired for submission of such plan (or revision there-

of), promulgate any such regulations unless, prior to

such promulgation, such State has adopted and sub-

mitted 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 Public

Works of the United States Senate not later than three

months after date of enactment of this paragraph on

the necessity of parking surcharge, management of

parking supply, and preferential bus carpool lane regu-

lations as part of the applicable implementation plans

required under this section to achieve and maintain

national primary ambient air quality standards. The

study shall include an assessment of the economic im-

pact of such regulations, consideration 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 Ad-

ministrator shall consult with other Federal officials

including, but not limited to, the Secretary of Trans-

114A

portation, 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 implementa-

tion plan. All parking surcharge regulations previously

required by the Administrator shall be void upon the

date of enactment of this subparagraph. This subpara-

graph shall not prevent the Administrator from ap-

proving parking surcharges if they are adopted and

submitted by a State as part of an applicable implemen-

tation plan. The Administrator may not condition ap-

proval of any implementation plan submitted by a State

on such plan’s including a parking surcharge regula-

tion.

until January 1, 1975, the effective date or applicability

of any regulations for the management of parking sup-

ply or any requirement that such regulations be a part

of an applicable implementation plan approved or pro-

mulgated under this section. The exercise of the au-

thority 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 ap-

plicable implementation plan. If the Administrator ex-

ercises the authority under this subparagraph, regu-

lations 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 January 1, 1975.

(D) For purposes of this paragraph—

12A

(i) The term “parking surcharge regulation” means

a regulation imposing or requiring the imposition of

any tax, surcharge, fee, or other charge on parking

spaces, or any other area used for the temporary stor-

age of motor vehicles.

(ii) The term “management of parking supply” shall

include any requirement providing that any new facil-

ity 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 permanent or

temporary basis for the exclusive use of buses or car-

pools, 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 en-

actment of this paragraph by the Administrator pursu-

ant 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 no-

tice has been given in such area. If substantial changes

are made following public hearings, one or more addi-

tional hearings shall be held in such area after such

notice.

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

mentation plan is the implementation plan, or most

recent revision thereof, which has been approved under

subsection (a) or promulgated under subsection (c)

and which implements a national primary or secondary

ambient air quality standard in a State.

13A

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

at the time of submission of any plan implementing a

national ambient air quality primary standard, the Ad-

ministrator may (subject to paragraph (2)) extend the

three-year period referred to in subsection (a) (2) (A)

(i) for not more than two years for an air quality con-

trol region if after review of such plan the Administra-

tor determines that—

(A) one or more emission sources (or classes of

moving sources) are unable to comply with the require-

ments of such plan which implement 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 alternative 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) which the

three-year period, and

(B) such interim measures of control of the sources

(or classes) described in paragraph (1)(A) as the Ad-

ministrator determines to be reasonable under the cir-

cumstances.

14A

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

source or class of moving sources is required to comply

with any requirement of an applicable implementation

plan the Governor of the State to which such plan ap-

plies may apply to the Administrator to postpone 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.

(B) such source (or class) is unable to comply with

such requirement because the necessary technology or

other alternative methods of control are not available

or have not been available for a sufficient period of

time,

and interim control measures have reduced or will re-

duce the impact of such source on public health, and

(D) the continued operation of such source is essen-

tial to national security or to the public health or wel-

fare,

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 para-

15A

graph shall be subject to judicial review by the United

States court of appeals for the cirevit which includes

such State upon the filing in such court within 30 days

from the date of such decision of a petition by any in-

terested 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 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

Administrator with respect to questions of fact (in-

cluding each determination made under subparagraphs

(A), (B), (C), and (D) of paragraph (1)) shall be sus-

tained if based upon a fair evaluation of the entire rec-

ord at such hearing.

graph shall take precedence over all the other causes

of action on the docket and shall be assigned for hear-

ing and decision at the earliest practicable date and

expedited in every way.

(D) Section 307(a) (relating to subpoenas) shall be

applicable to any proceeding under this subsection.

Section 113 (42 U.S.C. (and Supp. V) 1857¢-8)

FEDERAL ENFORCEMENT

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

available to him, the Administrator finds that any per-

16A

son 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 Ad-

ministrator’s notification, 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 accordance with subsection (b).

(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 ef-

fectively, he shall so notify the State. If the Adminis-

trator finds such failure extends beyond the thirtieth

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 Admin-

istrator that it will enforce such plan (hereafter re-

ferred to in this section as “period of Federally as-

sumed enforcement”), the Administrator may enforce

any requirement of such plan with respect to any per-

son—

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

quirement, or

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

(3) Whenever, on the basis of any information

available to him, the Administrator finds that any per-

son is in violation of section 11l(e) (relating to new

source performance standards), 112(c) (relating to

standards for hazardous emissions), or 119(g) (relat-

ing to energy-related authorities), or is in violation of

any requirement of section 114 (relating to inspections,

17A

etc.), he may issue an order requiring such person to

comply with such section or requirement, or he may

bring a civil action in accordance 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 is-

sued has had an opportunity to confer with the Admin-

istrator concerning the alleged violation. A copy of any

order issued under this subsection shall be sent to the

State air pollution control agency of any State in which

the violation occurs. Any order issued under this sub-

section shall state with reasonable specificity the na-

ture of the violation, specify a time for compliance

which the Administrator determines is reasonable, tak-

ing into account the seriousness of the violation and

any good faith efforts to comply with applicable re-

quirements. In any case in which an order under this

subsection (or notice to a violator 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 action

for appropriate relief, including a permanent or tem-

porary 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 applicable impie-

mentation plan (A) during any period of Federally

assumed enforcement, or (B) more than 30 days after

having been notified by the Administrator under sub-

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

such requirement; or

18A

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

(4) fails or refuses to comply with any requirement

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 doing

business, and such court shall have jurisdiction to re-

strain such violation and to require compliance. Notice

of the commencement of such action shall be given to

the appropriate State air pollution control agency.

(A) violates any requirement of an applicable im-

plementation plan (i) during any period of Federally

assumed enforcement, or (ii) more than 30 days after

having been notified by the Administrator under sub-

section (a)(1) that such person is violating such re-

quirement, or

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

order issued by the Administrator under subsection

(a),or

tion 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 committed 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 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 ap-

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

19A

or required to be maintained under this Act or who

falsifies, tampers with, or knowingly renders inaccu-

rate 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 Act—

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

trator of the Environmental Protection Agency.

* * * * *

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

Columbia, the Commonwealth of Puerto Rico, the Vir-

gin Islands, Guam, and American Samoa.

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

poration, partnership, association, State, municipality,

and political subdivision of a State.

(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, man-made materials, animals, wild-

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

deterioration of property, and hazards to transporta-

tion, as well as effects on economic values and on per-

sonal comfort and well-being.

wWU.S. GOVERNMENT PRINTING OFFICE: 1976—220-367/307

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.