# Petitioners Brief — Environmental Protection Agency v. Brown

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 99

## Text

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
v.

RUSSELL E. TRAIN, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY

RUSSELL E. TRAIN, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, PETITIONER
V.

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

1.

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

13

14

15

15

16

19
19

26

28

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

IV

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

V

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

VI
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

IX

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

X

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
V.

EDMUND G. BROWN, JR., GOVERNOR OF THE STATE
OF CALIFORNIA, ET AL.

No. 75-960
ENVIRONMENTAL PROTECTION AGENCY, PETITIONER
V.
STATE OF MARYLAND, ET AL.

No. 75-1050

COMMONWEALTH OF VIRGINIA, EX REL.
STATE AIR POLLUTION CONTROL BOARD, PETITIONER

V.

RUSSELL E. TRAIN, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY

No. 75-1055

RUSSELL E. TRAIN, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

V.
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

3

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.

4

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.

5

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).

6

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.

7

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

8

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).

9

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).

10

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).

11

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). :

12

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-

13

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-

14

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).

15

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.

16

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

17

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

18

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,

19

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).

20

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.

21

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.

22

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

23

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

24

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

25

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).

26

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."

1.
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.

27

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

28

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.)

29

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.

81

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.

52

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.

34

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.

35

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.

36

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-

37

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.

38

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.

89

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).

40

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

41

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.

42

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

43

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

44

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

45

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).

46

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.

47

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

48

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

49

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.

50

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—

51

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).

52

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

53

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

54

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.

55

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.

56

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-

57

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.

58

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.

59

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.

60

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)

2A

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

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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

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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 ad

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2162%3A06. Public record. Not legal advice.