Respondents Brief — Environmental Protection Agency v. Brown
Supreme Court brief1977
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In THE . |
Supreme Court of the United States
OcToBEeR TERM, 1976
No. 75-909, 75-960, 75-1050 and 75-1055
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,
Vv.
RUSSELL E. TRAIN, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY
RUSSELL E. TRAIN, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, Petitioner,
Vv
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 STATES
STATE OF ARIZONA
STATE OF CALIFORNIA
STATE OF MARYLAND
COMMONWEALTH OF VIRGINIA
DISTRICT OF COLUMBIA
(Counsel list appears on inside cover)
December 8, 1976
Bruce E. BABBITT,
Attorney General,
ANTHONY B. CHING,
Assistant Attorney General,
State Capitol,
Phoenix, Arizona 85007.
EVELLE J. YOUNGER,
Attorney General,
JoEL S. MOSKOWITZ,
Mark I. WEINBERGER, of counsel,
Deputy Attorneys General,
555 Capitol Mall,
Sacramento, California 95814.
FRANcIs B. BURCH,
Attorney General,
Henry R. Lorn,
Deputy Attorney General,
(by designation)
Piper & Marbury,
First Maryland Building,
Baltimore, Maryland 21201,
EDWARD M. Norton, JR.,
Assistant Attorney General,
One South Calvert Building,
Baltimore, Maryland 21202.
ANDREW P. MILLER,
Attorney General,
WALTER A. McFARLANE,
Deputy Attorney General,
J. THOMAS STEGER,
Assistant Attorney General,
Supreme Court Building,
1101 E. Broad Street,
Richmond, Virginia 23219.
JOHN R. RISHER, JR.,
Corporation Counsel,
Louis P. ROBBINS,
Principal Assistant
Corporation Counsel,
JoHN C. SALYER,
Assistant Corporation Counsel,
District Building,
Washington, D. C. 20004.
| TABLE OF CONTENTS
I I acini nti crtiaiaieeaiiaiieaierinaiin 2
I ills 2
CONSTITUTIONAL PROVISIONS, STATUTES AND
REGULATIONS INVOLVED ........cccccececceeeecceeeeeeees
QUESTIONS PRESENTED ...........cccccseseceeecseseeeeesesseeeeees
: 2
: 3
| STATEMENT OF THE CASE ......cccccccccsssssssseeeceseesseeeees 4
: The Cleam Air Act ..........ccccccccccccccccccccsccccscceccees 4
7
The Transportation Control Plans ................
SUMMARY OF ARGUMENT .....ccsssssssssssssssssseeeesnseessees 13
I. The Administrator has conceded that
the regulations at issue in this case are
| on! RISES aR Sts Mem 17
A. The regulations as promulgated
| require the States to legislate, and
the States are entitled to have this
case decided on that basis ............. 19
B. Implementation and enforcement
of any emission inspection and
maintenance regulations promul-
gated by the Administrator would
require the States to enact legisla-
tion and adopt regulations ............. 23
II. The Administrator lacks authority
under the Clean Air Act to require the
States to enact laws, adopt regulations,
and enforce federally mandated regula-
CO IED ciciectcsettcrstrecresenmnen 26
ii
A. The 1970 Amendments to the Clean
Air Act do not mark a departure
from the statute’s history of cooper-
attire GRATED ccccceccecesctsccssecsscnsnscese
The structure of the Clean Air Act
contemplates that states might not
act, the sole remedy for such
inaction being federal planning
ANA EMNFOTCEMENE ......cccccccrcccrcreseseccsees
The language of the Clean Air Act
does not support the Administra-
tor’s position that the States may
be forced to administer and enforce
implementation plans ...............:::+++
1. Section 113 permits sanctions
against a state that pollutes
the air, but does not contem-
plate finding a state “in viola-
tion” of a plan if it chooses not
to regulate polluters as the
Administrator directs ...............
2. No valid distinction can be
made under the Clean Air Act
between forcing the States to
legislate and forcing the States
to administer EPA-pro-
mulgated transportation con-
CGS CRIT ccccncsccnensteccisccenccces
a. All of the sections of the
Clean Air Act must be read
IN PATE MALETIA .......00000000000
b. No valid distinction exists
between directly forcing
the States to legislate and
forcing them to enforce
federal regulations which
require legislation ..............
PAGE
32
32
37
iil
c. The failure of the States to
regulate is not an “indirect
source” of air pollution ....
d. There is simply no persua-
sive evidence of congres-
sional intent to invade a
traditional State function
D. The legislative history of the 1970
Amendments is devoid of congres-
sional intent to force the States to
adopt statutes or to administer and
enforce implementation plans. .......
E. The status of the District of Colum-
bia under the Clean Air Act .........
III. The Administrator lacks the power
under the Constitution of the United
States to require the States to enact
laws and issue regulations establishing
air pollution control programs ..............
A. A State’s exercise of its governmen-
tal powers is not commerce or an
activity affecting commerce subject
to federal regulation under the
Commerce Clause ..............cccccceseeeeees
B. The Administrator’s regulations
interfere with governmental func-
tions that are essential to the
separate and independent existence
of the States, and thus his regula-
tions violate state sovereignty pro-
tected by the Constitution of the
I niente esiiicintins
C. The history of the Constitutional
Convention of 1787 demonstrates
that the framers of the Constitution
did not intend that the federal
PAGE
44
49
52
61
iv
government should have the power
to require the states to enact
legislation or to administer and
enforce federally mandated pro-
CITIES .ccactenentssintnntncnienmeoninmmnennninniinees
The decisions of this Court have
consistently recognized that the
federal government does not have
the power to compel the states to
enact laws, adopt regulations, or
enforce federally mandated regula-
COTY PTOPGTAIMIB ........cccccccccccccccccsecccseess
IV. The regulations which require States to
make financial commitments enabling
WMATA to purchase buses are contrary
to the terms of the WMATA compact,
are an illegal attempt to compel state
legislative action and are arbitrary and
CUTEINGID cccecccecesssscscscssstiinconsessntannsasmmmnanssees
A. The States’ proposals for additional
TD « cssisiectadntiatadismnntidiunnmeaneniinniiatite
B. The Administrator’s regulations
are an unlawful attempt to alter the
WMATA compact and to compel
state legislative action ...................
C. There is no justification for requir-
ing the purchase of additional
TRIN - sical sicisdeitesisiteashiadidimiinsameadininiatinn
B,C sniisicctnidiccttedtcensnieeniiios
CNC cccncceenseeinintosemaninsioniatiniaiannniammnninnets
APPENDIX:
A. Vehicle Emission Inspection and
Maintenance Program For The
Metropolitan Baltimore Intrastate
AGGIE. cesressccscoscrcssevcesnneensenssmasnsnnapenens
PAGE
73
78
79
81
¥
la
Vv
PAGE
B. Revocation of Gasoline Rationing
a 4a
C. Excerpts from the Legislative His-
tory of The Clean Air Amendments
ET deintliadatcce airs dccihinicctitiinteniiniin 7a
TABLE OF CITATIONS
Cases
Allen-Bradley Local v. Board, 315 U.S. 740 (1942) 47
Barnes v. District of Columbia, 91 U.S. 540 (1876) 60
Board of Trustees v. United States, 289 U.S. 48
ITE: sicnsiicicbeeiiiietdieatsibectsiceetiatesiccestainsnnastiiatsinaisidiiieitaiaes 58
Brown v. Environmental Protection Agency, 521
F.2d 827 (9th Cir. 1975) «0.0.0.0... 12, 18, 35, 50, 56
California v. Central Pacific Railroad Company,
fe ee ee 60
Carter v. Jury Commissioner of Greene County,
ee Re Te I cechichiaticidtliieietnindiineeniae 78
District of Columbia v. Carter, 409 U.S. 418 reh.
den. 410 U.S. 960 (1973) ...........ccccccccccccccscccceess 54
District of Columbia v. John R. Thompson Co.,
gf! Ss CE nee 52-53
District of Columbia v. Train, 521 F.2d 971 (D.C.
UIs: EIU iciicisitistdaitdaeteitteaeitaiisacniiaieiaetiatiiaia 18, 20, 35-46
Ex Parte Kentucky v. Dennison, 65 U.S. (24
STRSTR TIC Han ve eae EO 75-76
Fitzpatrick v. Bitzner, 96 S. Ct. 2666 (1976) ...... 77
Florida Lime and Avocado Growers v. Paul, 373
I I I i ah aati tniadlici 45-46
Friends of the Earth v. Carey, 74 Civ. 4500 (9
E.R.C. 1007) (S.D.N.Y., July 13, 1976) .......... 35, 40
Fry v. United States, 421 U.S. 542 (1975) .......... 58, 62
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) 55, 73-75
r “ PAGE
Griggs v. Allegheny County, 369 U.S. 84 (1962) 43
Hancock v. Train, 96 S. Ct. 2006 (1976) ............. 35, 47
Head v. New Mexico Board, 374 U.S. 424 (1963) 46
Hylton v. United States, 3 U.S. (3 Dall.) 171
ETI | iccussicanimcniieinancinisetinnddeniuidiindsdimeniiaimmsndimitie 73
Illinois v. City of Milwaukee, 406 U.S. 91 (1972) 43-44
Maryland v. Environmental Protection Agency,
530 F.2d 215 (4th Cir. 1975) .........cceeeeeeeees 18, 35, 48
Maryland v. Wirtz, 392 U.S. 183 (1968) .......... 58, 59, 63
Maurer v. Hamilton, 309 U.S. 598 (1940) ............ 46-47
Mayor of City of Philadelphia v. Educational
Equality League, 415 U.S. 605 (1974) ........... 78
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
STII . sccsissnccnssensioninenineseidnieniientasaienincadamegibandaiats 73-74
Missouri, Kansas and Texas Ry. v. Haber, 169
i, Ge CIE ccxitceciscccstsevabiisindintenadeupidupennumdannss 45
Morris v. Duby 274 U.S. 135 (1927) ...............se000 60
National League of Cities v. Usery, 96 S. Ct. 2465
EITIED « icceninvisectncsenitesedinndichavamdesesadniiiimentenii 17, 58, 61-65
Natural Resources Defense Council v. Environ-
mental Protection Agency, 475 F.2d 968 (D.C.
Ee, TRIED ccsnciecennsiesaccscstenaiitietinddadachiniadiuaatiaiinis 7
Neild v. District of Columbia, 110 F.2d 246 (D.C.
Ce, ID ccccsctntciinccensiiensndaisianniissascininiaimaaiiiibiaitins 52
New York v. United States, 326 U.S. 572 (1946) 60
Oklahoma v. United States Civil Service Com-
mission, 330 U.S. 107 (1947) ............sssccsssseesees 63
Palmore v. United States, 411 U.S. 389 (1973) .. 52,54
Parden v. Terminal Railway Company, 377 U.S.
I GOD = cxcnsiccccisctuinitinsaisasinteiidacpalitainlaaiahinsiisussitiiiieaiitin 58
Pennsylvania v. Environmental Protection
Agency, 500 F.2d 246 (8rd Cir. 1974) ........... 18, 60
;
t
vii
PAGE
Plan for Arcadia v. Anita Associates, 379 F.
Supp. 311 (C.D. Calif. 1973), aff'd, 501 F.2d
eee ree 29
Santa Cruz Fruit Packing Company v. NLRB,
I Ne i 56
Testa v. Katt, 330 U.S. 386 (1947) oo... 76-77
South Carolina v. Barnwell, 303 U.S. 177 (1938) 60
United States v. California, 297 U.S. 175 (1936) 42,58
United States v. Jones, 109 U.S. 513 (1883) ...... 76
United States v. Northwestern Pac. R. Co., 235
Fed. 965 (N.D. Calif. 1916) oo. 43
United States v. Ohio, 385 U.S. 9 (1966) ............ 58
United States v. Ohio Department of Highway
Safety, et al. Civ. No. C-2-76-835 (S.D. Ohio,
re Gy SU Sai 12, 22
Wickard v. Filburn, 317 U.S. 111 (1942) ....000000... 55, 58
Constitution of the United States
Article I, Section 8, Clause 3 ....... 4, 16, 17, 24, 46, 56-78
Article I, Section 8, Clause 17 woccecccececceceeeeeeeee 52
Article I, Section 8, Clause 18 2.0.0.0... 16, 24, 74
I 71
i 75
DN 16, 17, 24, 45, 69, 71, 77
NN 54
Thirteenth Amendment ............c..cccccccccccceseseseesseceeee 77-78
Fourteenth Amendment ...............cccccccceeesseeseeeceeeeees 77-78
Fifteenth Amendment ................ccccccccccscecsseesceeeeeeees 77-78
Statutes
Clean Air Act:
Air Quality Act of 1967, Pub. L. 90-148, 81
Se SE . cectnniinensicininumiemesanensnaneiannines 28
27
Act of July 14, 1955, ch. 360, 69 Stat. 322
Vill
PAGE
Clean Air Act of 1963, Pub. L. 88-206, 77 Stat.
BOB cncececovecceccoreeceesssnesssseesseesentniestereSGnnenees 27
Clean Air Amendments of 1970, 84 Stat. 1676
(amending 42 U.S.C. 1857 et seq.), as
amended by Section 302, 85 Stat. 464, and by
the Energy Supply and Environmental i
Coordination Act of 1974, 88 Stat. 246
42 U.S.C. 1857c-2(a), Clean Air Act Section
BOT ERD cecrcecessrsineenmn 29
IGBEAD ...cwssssenssntstiesittindee 4
42 U.S.C. 1857c-4; Clean Air Act Section 109 5
42 US.C. 1857c-5; Clean Air Act Section 110
15, 26, 28, 30
42 U.S.C. 1857c-5(a)(1); Clean Air Act Section
ROBE) ccrsscsssvisetircnitententaieineee 5, 29
42 U.S.C. 1857c-5(a)(2); Clean Air Act Section
RODE ..csscssncsstsinnertmetnmemae 29
42 U.S.C. 1857c-5(a)(2)(A); Clean Air Act
Section LIO(AKZMA) .... .cccccccccccccccccsccscsssess 6
42 U.S.C. 1857c-5(a)(2)(B), (F) and (G); Clean
Air Act Section 110(a)(2)(B), (F) and (G) 6
42 U.S.C. 1857c-5(c); Clean Air Act Section
) Ee ee 9, 20, 21, 36, 37
42 U.S.C. 1857c-5(c)(1); Clean Air Act Section
B ROERIED) ..nsuicssnsesestedetinemeeeiae 6, 29
42 U.S.C. 1857c-5(c)(2)(A) and (B); Clean Air
Act Section 110(c)(2)(A) and (B) ............ 21
42 U.S.C. 1857c-5(e)(1)(B); Clean Air Act Sec-
et | eee 7
42 U.S.C. 1857c-8; Clean Air Act Section 113 11, 15,
19, 26, 30, 31, 32, 34
42 U.S.C. 1857c-8(a)(1); Clean Air Act Section
DRGRITED cccsseccoccsssesesntecneimmeene 30, 33
a
” PAGE
42 U.S.C. 1857c-8(a)(2); Clean Air Act Section
ENED astanesstvncssctersesecescssscorccecesessccsscnsoceocs 30, 33
42 U.S.C. 1857c-8(b); Clean Air Act Section
a csnssccnevete 33
SESS SES AO 11, 32, 33
42 U.S.C. 1857d-1; Clean Air Act Section 116 48
42 U.S.C. 1857h(d); Clean Air Act Section
ETE ESS SES 5, 52
42 U.S.C. 1857h(e); Clean Air Act Section
ELS ELE 34
42 U.S.C. 1857h-2; Clean Air Act Section 304 19
42 U.S.C. 1857h-5; Clean Air Act Section 307 12
National Emissions Standards Act of 1965, Pub.
ee a ccncccnccsocecs 28
District of Columbia Self-Government and Go-
vernmental Reorganization Act of 1973, Pub.
SNe 53
Federal No-Fault Automobile insurance Act, S.
EEE EE ELE 55, 65
Organic Act of 1871, Act of February 21, 1871,
Section 1 et seq., 16 Stat. 419 oo... eens 52
Pub. L. 89-774, 80 Stat. 1324 ooo... ccccccccccesseeeeeeeee 78
In eees 25
Annotated Code of Maryland, Art. 41, Section
117-1 et seq. (1971 Repl. Vol.) .............:ccceeee 78
District of Columbia Code:
ES ET 52
I ssrennnnne
Section 6-812(a)(2) .........cccccccccccscscsecessseeseseeeeeees 53
Section 6-812(A)(4) .......cccccccccccccccsseessseceseseeeseesees
Virginia Acts of Assembly, ch. 2 (1966) ............. 78
Virginia Acts of Assembly ch. 342 at 570 (1975) 13
x
PAGE
Regulations
ON GG , — ax 3, 11, 19, 26, 31
OR OE —O—O—E——————————EE= 2
40 CFR Section 52.132(c) ................ sdenieisiibadimenaiuaiiiies 10
re GO 2,11
Pe, fl UY OF a )
40 CPR Sectiows GB.ATI) nccccccccccccccsescccoccscccccesesces 3,11, 81
Pe FF een 3
GD CHER Gratien GD ccccccccenssssnsscccsnsctesiestviessnnts 2,11
40 CFR Section 42.490(C)(4) .......cccccccccessereeeeseeeeeees 25
he, fll Ul U8, ey 9
40 CFR Section 52.1080(g) ..............sccccssecrsseseeseees 3,11, 81
40 CFR Section 52.1080(h) ...............ccccccsseeecesseeceene 3
Tt G0 SS i xa 3,11
40 CFR Section 52.1089(c)(4) ......ccccccesecesesseeeeeeeeees
Pee. fl CY fF er 3,11
40 CFR Section 52.1095(c)(2) .........cecesecceeseeeeeseseees 20
40 CFR Section 52.1099(d)(4) .......ccccceceeeeseeeeeeeeees 22
40 CFR Section 52.1100(d)(4) ...........ccccececeeesseseeeees 22
Pe GO eee i)
40 CFR Section 52.2435(e) ............:cccccssecscseseeeeeeees 3,11, 81
Ce en 3
ree, Ff ren 3,11
40 CFR Section 52.2441(C)4) .....ccccceseeceseeseeseeeoeees 25
Congressional Material
A Legislative History of the Clean Air Amend-
ments of 1970, Congressional Research
Service, Library of Congress (Ser. 93-18, Jan.
DEPT. ccceccssccnsecscnenensenssensnbesntnmsentanensesnntiatenamatanaiin 7a
xi
Hearings on S. 354 before the Senate Committee ser
on Commerce, 94th Cong., Ist Sess., Ser. 94-
UEP cociciceneieesindeitinissinitntianiadiaiciariiiaateiaesanisieiianlbail atest. 66
H.R. Rep. No. 910-1146, 91st Cong., 2d Sess.
ED :-itircceitiiisenenecinitninatildecmantsticnmmsiieusiniailiatetess 8a
H.R. Rep. No. 910-1783, 91st Cong., 2d Sess.
SEITE -ccdisihssinciitinsesiaiaeiniesdiiaiainpaaaiaaihdliniis alii eisai 7a
S. Rep. No. 91-1196, 91st Cong. 2d Sess. (1970) 8a
Miscellaneous
Beard, The Supreme Couri and the Constitution
IED ccieiihdieeicstsicnesintt eisipeiitihies citinshatiatiniases cca acca 69
Farrand, The Records of the Federal Convention
NI, WO TEI oni cicin insacniaaisstiaihitaiaeaiiniiimndiiaieadiaibaidi 68, 70
The Federalist No. 15 (Cooke ed. 1961) .............. 67
The Federalist No. 16 (Cooke ed. 1961) .............. 71
36 Fed. Reg. 15486 (August 14, 1971) .................. 7
37 Fed. Reg. 10844 (May 31, 1972) ..................000. 6
38 Fed. Reg. 7323 (March 20, 1973) ............:c0e000 7
38 Fed. Reg. 20769 (August 2, 1973) ................00 63
38 Fed. Reg. 20779 (August 2, 1973) ...............00+- 83
38 Fed. Reg. 30632 (August 2, 1973) ................006 57
38 Fed. Reg. 30633 (November 6, 1973) .............. 66
39 Fed. Reg. 1848 (January 15, 1974) .................. 83
39 Fed. Reg. 33512 (September 18, 1974) ............ 31
41 Fed. Reg. 45565 (October 15, 1976) ................. 21
41 Fed. Reg. 49848 (November 11, 1976) ............ 24
Hart and Wechsler, The Federal Courts And The
Federal System (Rev. ed. 1973) .........ccccc0ee00- 55, 69
Madison, Journal of the Constitutional Conven-
a GD Ge, GI cectitacnsinitentnrincteinsiitenesttenmntnns 69
Madison, Letters and Other Writings, (Worthing-
I ic, SD cckisnsstteteninscintiidisdeiiidiaisatenndiaeaiainains 67, 68
xii
PAGE
Note, Municipal Bankruptcy, the Tenth Amend-
ment and the New Federalism, 89 Harv. L.
ten, TECTED ccciccctcnsecusndiaieninadanmesiinionidenieide 62
Salmon, The Federalist Principle: The Interac-
tion of the Commerce Clause and the Tenth
Amendment in the Clean Air Act, 2 Colum.
RE ee 50, 55, 66
Warren, Federal Criminal Laws and the State
Courts, 38 Harv. L. Rev. 545 (1925) ............. 25
Warren, The Making of the Constitution (1937
ND cians aca illic lealei alia lar 67, 69
IN THE
Supreme Court of the United States
OcTOBER TERM, 1976
No. 75-909, 75-960, 75-1050 and 75-1055
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,
Vv.
RUSSELL E. TRAIN, ApMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY
RUSSELL E. TRAIN, ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY, Petitioner,
Vv
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 STATES
STATE OF ARIZONA
STATE OF CALIFORNIA
STATE OF MARYLAND
COMMONWEALTH OF VIRGINIA
DISTRICT OF COLUMBIA
2
OPINIONS BELOW
The States adopt the summary of the Opinions Below
which appears in the Brief for the Federal Parties.
JURISDICTION
The States adopt the statement of Jurisdiction which
appears in the Brief for the Federal Parties. For
purposes of clarification, the States note that a separate
pe.ition for a writ of certiorari to the Court of Appeals
for the District of Columbia was filed by the State Air
Pollution Control Board of the Commonwealth of
Virginia. That petition was granted on June 1, 1976, the
same day upon which the Court granted the petitions of
the Administrator of the Environmental Protection
Agency (A. 980-981).
CONSTITUTIONAL PROVISIONS, STATUTES
AND REGULATIONS INVOLVED
The Administrator of the Environmental Protection
Agency has omitted, contrary to Rule 40(c) of this
Court, the following regulations which are involved in
this case.
(1) 40 C.F.R. §52.132 (A. 573-77)
Vehicle emission inspection and mainte-
nance regulations for Phoenix-Tucson Air
Quality Control Region (“AQCR’’).
(2) 40 C.F.R. §52.242 (A. 503-05).
Vehicle emission inspection and mainte-
nance regulations for the five California
AQCR’s.
(3) 40 C.F.R. §52.490 (A. 637-38).
Vehicle emission inspection and mainte-
nance regulations for the District of Colum-
bia portion of the National Capital Inter-
state AQCR.
3
(4) 40 C.F.R. §52.1089 (A. 668-71).
Vehicle emission inspection and mainte-
nance regulations for the Maryland portion
of the National Capital Interstate AQCR.
(5) 40 C.F.R. §52.2441 (A. 699-702).
Vehicle emission inspection and mainte-
nance regulations for the Virginia portion of
the National Capital Interstate AQCR.
(6) 40 C.F.R. §52.1095 (A. 753-55).
Vehicle emission inspection and mainte-
nance regulations for the Metropolitan
Baltimore Intrastate AQCR. This regula-
tion, which is typical of the Administrator’s
vehicle emission inspection and mainte-
nance regulations at issue in this case is
also set forth for convenience in Appendix A
infra.
(7) 40 C.F.R. §52.476(g) and (h) (A. 624-26).
Increased bus fleet and exclusive bus lane
regulations for the District of Columbia
portion of the National Capital Interstate
AQCR.
(8) 40 C.F.R. §52.1080(g) and (h) (A. 658-59).
Increased bus fleet and exclusive bus lane
regulations for the Maryland portion of the
National Capital Interstate AQCR.
(9) 40 C.F.R. §52.2435(e) and (f) (A. 690-91).
Increased bus fleet and exclusive bus lane
regulations for the Virginia portion of the
National Capital Interstate AQCR.
(10) 40 C.F.R. §52.23 Violation and Enforcement,
set forth at p. 31 infra.
QUESTIONS PRESENTED
1. Whether the Administrator of the Environmental
Protection Agency has the power under the Clean Air
Act to require a state to enact laws and regulations
establishing air pollution control programs and to
administer and enforce those programs.
4
2. Whether the Clean Air Act empowers the Admin-
istrator of the Environmental Protection Agency to seek
sanctions against a state and its officials for failure to
enact, administer and enforce air pollution control
programs promulgated by the Administrator.
3. Whether, if the Administrator has such statutory
authority, the Clean Air Act is a valid exercise of
Congress’ power under the Commerce Clause and
whether it violates state sovereignty and principles of
federalism inherent in the Constitution of the United
States.
4. Whether the Commonwealth of Virginia, the
State of Maryland and the District of Columbia can be
compelled to provide funds to the Washington Metropol-
itan Area Transit Authority for the purchase of buses.
STATEMENT OF THE CASE
The following Statement of the Case is presented for
purposes of emphasis, conciseness and clarity.
THE CLEAN ArIR ACT
In 1970 Congress extensively amended the Clean Air
Act.' Those amendments require the Administrator of
the Environmental Protection Agency to establish air
quality criteria? and to set primary and secondary
1 Clean Air Amendments of 1970, 84 Stat. 1676 (amending
42 U.S.C. 1857 et seq.). The statutory history of the Clean Air
Act and the 1970 Amendments is discussed in Argument II A
at pp. 27-28 infra. The Clean Air Act was further amended by
Section 302, 85 Stat. 464, and by the Engergy Supply and
Environmental Coordination Act of 1974, 88 Stat. 246. For
convenience, further references to the “Clean Air Act” will
mean the Clean Air Act as amended to date.
2 42 U.S.C. 1857c-3(a); Clean Air Act §108(a).
5
ambient air quality standards* for air pollutants. To
date, the Administrator has issued air quality criteria
and primary and secondary air quality standards for
suifur oxides, particulate matter, nitrogen oxides,
carbon monoxide, hydrocarbons, and photochemical
oxidants. The principal source of carbon dioxide,
hydrocarbons, photochemical oxidants and nitrogen
oxides as pollutants in the ambient air is motor vehicle
emissions.
The Clean Air Act further requires each state‘ to
devise and submit to the Administrator for approval a
plan for the implementation, maintenance and enforce-
ment of the primary and secondary air quality
standards in each air quality control region (AQCR)
within the state.5 Each state implementation plan must
contain certain provisions, including:
(B) ... Emission limitations, schedules, and
time-tables for compliance with such limita-
tions, and such other measures as may be
necessary to insure attainment and mainte-
nance of such primary or secondary stand-
ard, including, but not limited to, land-use
and transportation controls; .. .
(F) ...mecessary assurances that the State will
have adequate personnel, funding and
authority to carry out such implementatio
plan... [and] ,
8 42 U.S.C. 1857c-4; Clean Air Act §109. Primary standards
are standards necessary to protect the public health.
Secondary standards are those required to protect the public
welfare from known or anticipated adverse effects.
* The District of Columbia is treated as a state under the
Clean Air Act. 42 U.S.C. 1857h(d); Clean Air Act §302(d). See
Argument II E at pp. 52-55 infra.
5 The implementation plans were required to be submitted
within nine months after April 30, 1971, the date the
Administrator promulgated the ambient air quality stand-
ards. 42 U.S.C. 1857c-5(a\(1). Clean Air Act §110(a)(1).
6
(G) .. . [provision] to the extent necessary and
practicable, for periodic inspection and
testing of motor vehicles to enforce com-
pliance with applicable emission standards.®
To be approved by the Administrator, state imple-
mentation plans must provide for the attainment of the
primary air quality standards within three years and
the secondary air quality standards within a specified
reasonable period of time.’ If a state fails to propose an
implementation plan or if the plan it proposes is not
acceptable to the Administrator under the criteria set
forth in the Clean Air Act, the Act requires the
Administrator to promulgate a substitute plan which
will achieve timely attainment of the national primary
and secondary air quality standards within the state.*®
All of the states that are parties to this case (the
“States”) submitted implementation plans to the
Administrator in early 1972. However, during the
period of initial implementation of the 1970 Amend-
ments to the Clean Air Act, the Administrator recog-
nized that the states “. . . had practically no experience
with transportation control measures as a means of
dealing with air quality problems and that available
data were not sufficient to permit states to develop
meaningful transportation control schemes and predict
their impact on air quality.”® Accordingly, the Adminis-
trator advised the States that transportation control
schemes could be deferred beyond the statutory dead-
line for the submission of implementation plans, so
long as the plans submitted defined the degree of
6 42 U.S.C. 1857c-5(a)(2)(B), (F) and (G); Clean Air Act
§110(a\(2)B), (F) and (G).
7 42 U.S.C. 1857c-5(a)(2A); Clean Air Act §110(a)(2)(A).
* 42 U.S.C. 1857c-(c\1); Clean Air Act §110(c)(1).
® See, e.g., 37 Fed. Reg. 10844 (May 31, 1972).
7
emission reduction which could be achieved by the
transportation control measures being considered.!°
However, the United States Court of Appeals for the
District of Columbia ruled on January 31, 1973 that the
Clean Air Act did not permit either the delay in
submission of transportation control plans or an
extension of time within which to meet the primary
ambient air quality standards.'! The court’s order
directed the Administrator to rescind his extensions
and to require the States to submit transportation
control plans by April 15, 1973 and to attain the
primary ambient air quality standards by May 31, 1975.
The Administrator was expressly forbidden to grant
any extension of the deadline for attaining the primary
air quality standards unless a state had made every
effort to achieve the standards, including the implemen-
tation of all “reasonably available alternative
means.”’!? Accordingly, the Administrator revoked all
extensions previously granted and ordered each state
which had deferred submission of land-use and trans-
portation control strategies to submit the required plans
by April 15, 1973.'%
THE TRANSPORTATION CONTROL PLANS
Officials of Arizona, Maryland, Virginia and the
District of Columbia submitted, within the time
prescribed, transportation control plans for the air
quality control regions within their respective jurisdic-
tions. The plans for the following air quality control
regions in those States are involved in this case: the
Phoenix-Tucson Intrastate AQCR, the Metropolitan
'0 36 Fed. Reg. 15486 (August 14, 1971).
'! Natural Resources Defense Council v. Environmental
Protection Agency, 475 F.2d 968 (D.C. Cir. 1973).
1242 U.S.C. 1857c-5(eX1\B); Clean Air Act Section
110(e1)(B).
13 38 Fed. Reg. 7323-24 (March 20, 1973).
8
Baltimore Intrastate AQCR (Baltimore City and the
five surrounding counties), and the National Capital
Interstate AQCR (the District of Columbia and the
Maryland and Virginia suburbs). California was not
able to prepare a transportation control plan for its five
intrastate AQCR’s within the limited time available.
Each of the State-submitted plans proposed a wide
range of strategies to reduce air pollution caused by
motor vehicle emissions, including a mandatory annual
emission inspection and maintenance program for
various classes of vehicles. The Maryland, Virginia,
and District of Columbia plans also proposed measures
to encourage the use of public transportation in the
Washington D.C. region by creating disincentives to
private vehicle use, by adding more buses to the
Washington Metropolitan Area Transit Authority’s
(WMATA)"‘ fleet, and by establishing exclusive reversi-
ble bus lanes in specified highway corridors.'®
The Administrator approved some parts and disap-
proved other parts of Arizona’s plan for the Phoenix-
Tucson AQCR, Maryland’s plan for the Metropolitan
Baltimore Intrastate AQCR, and Maryland’s, Virgi-
nia’s, and the District of Columbia’s plans for their
respective portions of the National Capital Interstate
AQCR. Ironically, the reason that the Administrator
gave for disapproving several of the States’ proposals,
including the inspection and maintenance programs,
\4 WMATA is an independent corporate body created by
compact between Maryland, Virginia, and the District of
Columbia with the approval of Congress. The compact is
discussed in detail in Argument IV at pp. 78-85 infra.
15 The States’ plans were submitted, in the case of
Maryland and Arizona by the Governor, and, in the case of
Virginia by the State Air Pollution Control Board. The
Virginia plan expressly stated that implementation of the
inspection and maintenance program depended upon the
approval of the Virginia legislature and further cautioned
that the Board could not guarantee the commitment of funds
for the purchase of additional buses by WMATA (A. 905-910).
9
the exclusive bus lane provisions, and the purchase of
additional buses by WMATA, was the failure of the
States to demonstrate that they had the requisite legal
authority to implement and fund those transportation
control strategies. '®
As noted above, Section 110(c) of the Clean Air Act
requires the Administrator, if he disapproves a state
plan in whole or in part or if a state fails to submit a
plan, to promulgate his own implementation plan
designed to attain the ambient air quality standards.
With respect to the States, the Administrator appar-
ently believed that he could comply with this Section
110(c) requirement by merely adopting regulations
ordering them in turn to develop, establish, implement,
and enforce a large number of transportation control
strategies. The Administrator’s regulations, promul-
gated during November and December of 1973, required
the States to undertake, by legislation and regulation,
such measures as:
—inspection and maintenance programs for var-
ious classes of vehicles;
—retrofit programs requiring emission control
devices of an unspecified type on various classes
of older vehicles;
—restrictions on the use of motorcycles;
16 See, e.g., 40 C.F.R. §§52.474 (A. 621), 52.1074 (A. 652),
52.2430 (A. 686).
For example, 40 C.F.R. §52.2430 Legal Authority, identify-
ing shortcomings in the state-submitted implementation plan
of Virginia provides:
(a) The requirements of Section 51.11(c) of this chapter
are not fully met because the plan does not adequately
identify or provide copies of all laws or regulations
necessary for implementing the transportation control
measures. (b) The requirements of Section 51.11(f) of this
chapter are not fully met because it is not clearly
demonstrated that all local agencies have requisite legal
authority, or that the State retains responsibility for
implementing the transportation control measures.
10
—express bus and carpool lanes on major transpor-
tation corridors;
—computerized carpool information services;
—a network of bicycle lanes and storage facilities;
—elimination of free on-street commuter parking;
—parking surcharges;
—a gasoline rationing program for the Metropoli-
tan Baltimore Intrastate AQCR and the five
California AQCR’s;
—the establishment of commercial rates at federal
parking facilities in Washington D.C.; and
—the purchase of a total of 475 additional buses by
WMATA.
Thus, the significant modification made by the
Administrator to the State-submitted plans in each
instance was the imposition of a requirement that the
States enact and enforce laws and regulations neces-
sary to carry out the various programs. For example, on
November 21, 1973 the Administrator approved Arizo-
na’s inspection and maintenance program as submitted
by the Governor but added the mandate that Arizona
must submit, within two months, proposed legislation
and regulations and funding authority and, within five
mouths, evidence confirming their enactment and
adoption.'’
The Administrator’s regulations with respect to the
other transportation control strategies followed a
similar pattern. The States were ordered to submit
17 40 C.F.R. §52.132(c) (A. 573-75) provides:
To implement the approved control measures .. . the
State of Arizona must submit to the Administrator. . .
(1) No later than February 1, 1974. . . (i) The text of
proposed legislation and regulations for the inspection
and maintenance program ... (ii) A signed statement
from the governor or his designee identifying the sources
and amounts of funds for the programs. If the funds can
not legally be obligated under existing statutory author-
ity, the text of needed legislation shall be submitted. (iii)
11
legally adopted regulations, containing specified provi-
sions, establishing the particular program. The Admin-
istrator specifically directed the States to provide for
enforcement procedures and sanctions and penalties for
violations of those regulations. The States were also
ordered to submit detailed compliance schedules con-
taining the text of needed legislation and regulations,
the date the State would recommend needed legislation
to the State legislature, and a signed statement from
the Governor or his representatives identifying the
sources of funds for the program and the text of any
legislation needed to appropriate the funds.'*
Section 113 of the Clean Air Act provides for federal
enforcement of implementation plans and imposes civil
and criminal sanctions for violations of those plans.'®
The Administrator’s regulations provide that if a
governmental entity fails to comply with the provisions
of an implementation plan, it will be subject to an
enforcement action under Section 113. Noncompliance
is defined as failure to submit a compliance schedule
required by an implementation plan, failure to include
the required elements in a compliance schedule, or
failure to comply with the schedule.”
The date by which the State will recommend all needed
legislation to the State legislature... .
(2) No later than May 1, 1974, the legislative
authority for implementing the inspection and mainte-
nance program
(3) No later ‘than September 1, 1974 the adopted
regulations and administrative policies necessary for
implementation of the control measures .
'* See, e.g., 40 C.F.R. §§52.242, 52.490, 52.1089, 52.1095 and
52.2441 (Inspection and maintenance program); 40 C.F.R.
$852 .A7ee), 52.1080(g) and 52.2435(e) (Purchase of buses by
'8 42 U.S.C. 1857c-8. Section 113(c) of the Clean Air Act
provides for fines of up to $25,000 a day and a prison term of
not more than one year.
20 40 C.F.R. §52.23. See p. 31 infra.
12
The States note that the present Administrator
disclaims any intention to seek criminal penalties
against state officials and represents that he will seek
to obtain compliance by administrative orders and
administrative conferences.?! However, the Administra-
tor’s mood has not always been so conciliatory. He has
threatened to seek drastic sanctions in order to gain
compliance with his regulations including the imposi-
tion of a receivership on certain state functions, holding
state officials in civil contempt and imposing substan-
tial daily fines, and requiring a state to allocate funds
from one portion of its budget to another. Brown uv.
Environmental Protection Agency, 521 F.2d 827, 831
(9th Cir. 1975).22
After the Administrator promulgated final regula-
tions imposing on the States the requirement to develop
and implement transportation control strategies, the
States petitioned the appropriate Courts of Appeals for
review of the regulations pursuant to Section 307 of the
Clean Air Act.
While Maryland’s and Virginia’s petitions were
pending in the courts, state agencies in both States
sought legislation establishing vehicle inspection and
maintenance programs. In 1973, the Maryland Depart-
ment of Transportation submitted proposed legislation
to the General Assembly which would have given the
Motor Vehicle Administration the power to conduct
21 Brief for the Federal Parties at 38 n. 32.
22 The Administrator has recently filed an enforcement
action in the United States District Court for the Southern
District of Ohio seeking to enjoin, and seeking “other and
further relief’, against the Ohio Department of Highway
Safety and its Director from issuing license plates to vehicles
in the Ohio portion of the Metropolitan Cincinnati Interstate
AQCR which have failed to comply with EPA-mandated
emission standards. United States v. Ohio Department of
— Safety, Civ. No. C-2-76-835 (S.D. Ohio, filed Nov. 19,
1976).
13
annual emission tests and to deny registration to
vehicles that failed to comply with emission standards
set by the Maryland Department of Health and Mental
Hygiene. Similar legislation was submitted by the
Governor in 1974. In both years, the proposed legisla-
tion was defeated in committee.?°
The Virginia Air Pollution Control Board also
requested legislative authority from the 1974 Virginia
General Assembly for an inspection and maintenance
program. One bill, H.B.668, proposed a decal or sticker
system for enforcement, similar to Virginia’s safety
inspection program. Another bill, H.B. 1014, provided
for the denial of registration to vehicles that failed the
emission inspection test. The committee to which the
bills were referred voted to carry over the bills to the
1975 legislative session.
In 1975, the bill creating the above described emission
inspection program was substantially amended by the
House of Delegates to create a voluntary program
during 1975, but effective only if the District of
Columbia and Maryland enacted similar legislation. In
the Virginia Senate, the bill was further amended to
exclude Prince William County and the City of
Alexandria, and it was then enacted into law.” The
second bill providing for the denial of registration was
killed in committee.
The situation with respect to the Administrator’s
regulations that require the purchase of additional
buses by WMATA is described at Argument IV infra.
SUMMARY OF ARGUMENT
This case presents important questions concerning
the proper role of the federal government and the states
23 House Bill 321, introduced January 12, 1973. Maryland
House Journal (1973) at 185. House Bill 1405, introduced
March 4, 1974. Maryland House Journal (1974) at 1256.
24 Virginia Acts of Assembly, Ch. 342 at 570 (1975).
14
in the federal system. Framed most broadly, the issue
before this Court is whether a federal executive officer
can force the states to use their legislative and
executive powers to implement federal programs.
This issue arises in the context of the Administrator’s
regulations, issued under the Clean Air Act, which
require the States to enact and enforce laws and
regulations establishing air pollution control programs
under threat of civil and criminal penalties. The specific
regulations at issue here require the States to establish
complex vehicle emission inspection and maintenance
programs, and require Maryland, Virginia and the
District of Columbia and their local jurisdictions to
expend approximately $34 million for new buses for
public transportation and to set aside express bus lanes
on extensively travelled highway corridors. The impli-
cations of those regulations for the States are appalling.
The Administrator’s programs at issue here will make
at best a small contribution to achieving the ambient
air quality standards required by the Clean Air Act.
Thus, the Administrator must develop numerous
additional programs to comply with the mandate of the
Act, and if those programs follow the form of those he
has selected for review in this case, their impact on the
State, although impossible to predict precisely, would be
enormous.
The Administrator’s transportation control regula-
tions suffered serious setbacks in the Courts of Appeals,
three out of four of which held that the Clean Air Act
does not authorize the Administrator to require the
states to legislate or adopt regulations. Faced with that
rebuff, the Administrator, with a surprising lack of
candor, represents to this Court that his regulations
have never required the States to legislate. He also
maintains that he will withdraw all parts of the
regulations which require the States to submit regula-
tions and that he will now require the States only to
15
“implement” his programs. The States urge that this
Court must review the Administrator’s regulations as
he issued them and threatened to enforce them, and not
on the basis of his eleventh-hour concessions. There is
no substantive difference between the Administrator’s
new position and that expressed in his current regula-
tions. The States cannot implement a federal program
without legislating and adopting regulations.
The Administrator’s assertion of the power, both
under the Clean Air Act and the Constitution, to require
the States to legislate and regulate and to enforce
federally dictated programs rests on a deceptively
simple syllogism. He argues that motor vehicles cause
air pollution, that the States have encouraged the use of
motor vehicles by governmental policy decisions with
respect to the public highways, and therefore the States,
as owners and operators of the highways, are polluters
subject to federal regulation. The syllogism is riddled
with weaknesses.
Neither the structure nor the history of the Clean Air
Act contain any hint that Congress intended to treat
the states as polluters, subject to the enforcement
provision of Section 113, because they own and operate
the roads or because they are unable or unwilling to
establish, implement or enforce the Administrator’s
programs. Under Section 110 and Section 113, the
states have the primary responsibility to develop and
enforce, respectively, air pollution control programs.
The federal government’s role under Section 110 is to
review and approve the states’ programs and to
promulgate a federal plan if the state plan will not
achieve the air quality standards. Section 113 creates a
parallel enforcement role for the federal government. If
the states cannot, because they lack authority or
because they have established other priorities, imple-
ment and enforce the Administrator’s programs, the
Administrator must assume implementation responsi-
bility for those functions himself.
16
The Administrator’s assertion of the power to force
the states to exercise their governmental powers on his
behalf represents arrogant defiance of almost two
hundred years of cooperation between the federal
government and the states. In the past, the federal
government has always had ample power to achieve its
purposes by acting directly on private individuals, by
conditioning availability of federal funds to the states
on their compliance with federal standards and by
preempting state activities that interfere with federal
goals. The Administrator bears a heavy burden to
establish that Congress discarded those time-honored
methods and opted for the heavy hand of coercion. The
States submit that he has not met that burden. |
To support his radical assertion of federal power, the
Administrator must rely on two novel constitutional
theories. First, he asserts that state governmental
policies with respect to the public highways, including
the failure of the states to regulate private individuals
whose vehicles cause air pollution, constitutes a burden
on interstate commerce. Second, he argues that under
the Commerce, Necessary and Proper and Supremacy
Clauses he possesses the power to require the States to
exercise governmental powers to regulate private
individuals who use the highways. The Administrator
finds no support for those constitutional theories in the
structure of the Constitution, or in any decision of this
Court.
His assertion of the power to conscript the legislative
and executive powers of the States violates three
fundamental structural principles of our federal system,
all of which emerge with remarkable clarity from the
history of the Constitution. First, the Constitution
limits the powers of the federal government to specific
subjects, such as interstate commerce. The legislative
and executive powers of the States are not commerce in
the constitutional sense.
17
Second, as this Court has repeatedly recognized,
“there are attributes of sovereignty attaching to every
state government which may not be impaired by
Congress, not because Congress may lack an affirma-
tive grant of legislative authority to reach the matter
but because the Constitution prohibits it from exercis-
ing the authority in that manner.” National League of
Cities v. Usery, 96 S. Ct. 2465, 2471 (1976). The
Administrator’s regulations displace the functions that
are most “essential to separate and independent
existence,” the governmental processes of the states. Id.
Third, the Supremacy Clause, as the constitutional
mechanism for resolving conflicts of federal and state
power, permits Congress to preempt state action or to
require the states, if they choose to act at all, to regulate
interstate commerce to conform to federal standards. It
is not an independent source of federal power under
which Congress can require the states to exercise their
essential governmental functions.
ARGUMENT
I.
THE ADMINISTRATOR HAS CONCEDED THAT THE
REGULATIONS AT ISSUE IN THIS
CASE ARE INVALID.
The Administrator’s regulations, by their very terms,
require the States to enact legislation and adopt
regulations. All of the Courts of Appeals below read the
Administrator’s regulations to impose such a require-
ment. Indeed, until his opening brief in this Court, the
Administrator had always confidently asserted the
power to require the States to enact legislation and
adopt rcculations.
In that brief the Administrator retreated from the
position he consistently took before the Courts of
Appeals. He now states that he has never asserted the
18
power to direct the States to enact legislation establish-
ing transportation control plans.*° Furthermore, he
desperately attempts to rewrite his own regulations in a
footnote to his brief by “conced[ing] the necessity of
removing from the regulations all requirements that the
States submit legally adopted regulations . . .”*° With
respect to the vehicle inspection and maintenance
program, the Administrator now acknowledges that if
the States fail to adopt an adequate plan, he must then
promulgate “a comprehensive substitute plan, specify-
ing 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 inspections, refusing to register
25 Brief for the Federal Parties at 20 n. 14, 54. Despite his
current assertions to the contrary, in his brief in the Court of
Appeals for the Fourth Circuit, the Administrator “boldly”
took the position that his regulations “require the State to
enact enabling legislation.” Maryland v. Environmental
Protection Agency, 530 F.2d 215, 224 (4th Cir. 1975). In the
Ninth Circuit, the court described the Administrator’s
position as asserting the power to “direct that a state...
enact such laws to control air pollution as the Administrator
might require ...”’ Brown v. Environmental Protection
Agency, 521 F.2d 827, 838 (9th Cir. 1975). In the Court of
Appeals for the District of Columbia the Administrator
disclaimed any intention to compel state officials to enact
laws or adopt regulations, but he clearly asserted the power
to do so. District of Columbia v. Train, 521 F.2d 971, 982 n. 19
(D.C. Cir. 1975). The Court of Appeals for the Third Circuit
found that the regulations “will require the Commonwealth
[of Pennsylvania] to exercise its legislative and administra-
tive powers, for that is the means by which a state regulates
its transportation system.” Pennsylvania v. Environmental
Protection Agency, 500 F.2d 246, 262 (3rd Cir. 1974). Finally,
in his petition for a writ of certiorari in EPA v. Brown, the
Administrator asserted the power to compel the states to
implement his substitute vehicle inspection and maintenance
program “. . . although this may require . . . enactment of
complementary state legislation.” October Term 1975 Pet.
No. 75-909 at 17-18.
26 Brief for the Federal Parties at 20 n. 14.
19
nonconforming vehicles, and enforcing its registration
laws.”2’? There are two fundamental defects in the
Administrator’s new position.
A. THE REGULATIONS AS PROMULGATED REQUIRE
THE States To LEGISLATE, AND THE STATES ARE
ENTITLED To Have Tus CAsE DECIDED ON THAT
BasIs.
The regulations that are before this Court for decision
are those which the Administrator promulgated in 1973
and which were considered by the Courts of Appeals
below. Significantly, the Administrator has never
amended or withdrawn the regulations in accordance
with the provisions of the Clean Air Act, and he cannot,
by means of a footnote in a brief to this Court, jettison
regulations that are clearly invalid and then divert this
Court’s attention to hypothetical regulations which he
now considers more defensible.
The Administrator’s regulations as promulgated
speak only to the states. They expressly require the
states to enact laws, to submit legally adopted regula-
tions and to engage in other acts of governance which
establish a complex vehicle inspection and mainte-
nance program, commit the States and their subdivi-
sions to the purchase of buses, and create exclusive one-
way bus lanes in specified corridors in metropolitan
areas. Failure to comply with the Administrator’s
regulations exposes state officials to criminal and civil
penalties and other sanctions under Section 113 and 40
C.F.R. §52.23 and to citizen suits brought pursuant to
Section 304 of the Clean Air Act. The States take cold
comfort from the Administrator’s representations that
he will not enforce his regulations by using all
available sanctions. At no time has the Administrator
renounced the proposition that he has the statutory and
constitutional power to impose civil and criminal
penalties on state officials who fail to comply with his
directives.
27 Id.
20
Furthermore the Administrator has not complied
with his latest interpretation of what the Clean Air Act
requires him to do after he disapproves a transportation
control plan submitted by a state. Clearly, he has not
promulgated, as he now concedes he is required to,
either an adequate substitute inspection and mainte-
nance program or a comprehensive substitute transpor-
tation control plan.
The Court of Appeals for the District of Columbia
found that the Administrator’s “plan”, far from being
comprehensive, merely “shove[d] the responsibility for
adopting regulations back onto the states.” District of
Columbia v. Train, 521 F.2d 971, 982 (D.C. Cir. 1975).
For example, although the Administrator represents to
this Court that his vehicle inspection and maintenance
regulations contain emission standards and limita-
tions, in fact they do not, and the Court of Appeals for
the District of Columbia specifically so held. Id. at 986-
87, 995.28 Those regulations, as now in effect, merely
require that the States themselves establish “inspection
failure criteria consistent with the failure of [a specified
percentage] of vehicles in the first inspection cycle.”?°
Because of that deficiency, and similar deficiencies with
respect to other transportation control strategies, the
Court of Appeals for the District of Columbia held that
the Administrator had failed to comply with his
obligation under Section 110(c) of the Clean Air Act to
promulgate complete substitute programs which would
attain air quality standards. Id.
28 The Court of Appeals remanded the inspection and
maintenance regulations and retrofit regulations to the
Administrator with directions that he promulgate a full set of
regulations for the attainment of air quality standards as
required by the Clean Air Act, District of Columbia v. Train,
521 F.2d 971, 987, 995 (D.C. Cir. 1975). The Administrator has
not sought review by this Court of that determination.
October Term 1975 Pet. No. 75-909 at 17 n. 15.
29 See, e.g., 40 C.F.R. §52.1095(c\2) (Baltimore Intrastate
AQCR).
21
Furthermore, this Court does not have before it a
comprehensive substitute transportation control plan
as required by Section 110 (c) of the Clean Air Act. The
Administrator has asked this Court to review only his
regulations ordering the States to establish inspection
and maintenance programs, to commit funds for
additional buses, and to establish one-way bus lanes.
However, the Courts of Appeals below held invalid
other provisions of the Administrator’s transportation
control regulations, such as the bikeways program and
the program to retrofit older vehicles with pollution
control devices. The Administrator has not sought
review of those decisions. Moreover, the Administrator
has withdrawn all provisions of his plans imposing
parking control measures,®*® as well as those requiring
gasoline rationing.*!
The Administrator required the States to adopt the
numerous transportation control strategies because he
determined that all were necessary to attain the
ambient air quality standards required by the Clean Air
Act. The individual components of the plan were
designed to be implemented together to achieve the
statutory goal. None of those strategies was ever
intended to be sufficient, standing alone.
For example, in the transportation control plan for
the Baltimore Intrastate AQCR, the Administrator
ordered Maryland to establish a medium and heavy
3° Congress also amended the Clean Air Act in 1974 by
prohibiting the Administrator from instituting a parking
surcharge, although he may approve such a measure if it is
submitted by a state as part of a plan. 42 U.S.C. 1857c-
5(cX2)A) and (B); Clean Air Act §110(cX2XA) and (B).
31 41 Fed. Reg. 45565 (October 15, 1976). Appendix B “—
In withdrawing the gasoline rationing regulations,
Administrator conceded that “this revocation will render oe
affected SIPs [State Implementation Plans] defective as a
legal matter, since such SIPs will no longer contain
regulations which provide for NAAQS [national ambient air
quality standards].”
22
duty vehicle emission inspection and maintenance
program in order to make certain that the medium and
heavy duty vehicle retrofit programs would achieve
their purpose.*2 Now that the Administrator has
apparently abandoned the retrofit programs, his
inspection and maintenance regulations for medium
and heavy duty vehicles in Maryland have no inde-
pendent validity. Similarly, the purchase of additional
buses by WMATA was designed as part of an overall
strategy to encourage the use of public transportation
and to discourage the use of the private automobile by
instituting such disincentives as the parking surcharge
and other parking control measures. The Administrator
has never reevaluated the need for additional buses in
light of the elimination of the parking control measures
from his plan.**
Thus, the Administrator’s transportation control
plans in the States are in shambles. He recognizes that
the transportation control regulations at issue in this
case are invalid as written because they require the
States to adopt laws and regulations. Consequently, he
is attempting to put before the Court a regulatory
scheme, radically different from his 1973 regulations,
under which he would establish programs such as the
inspection and maintenance program which the States
will be required to implement and enforce.
Although the Administrator attempts to present his
new regulatory scheme to this Court in the narrow
context of a vehicle inspection and maintenance
program, the States emphasize that the inspection and
maintenance program is but one of the few surviving
elements of a complex transportation control plan
designed to achieve the ambient air quality standards
required by the Clean Air Act. The Administrator has
abandoned most of the other elements of that compre-
32 40 C.F.R. §§52.1099(d)(4), 52.1100(d)(4); (A. 727, 762-65).
33 See discussion in Argument IV C at pp. 83-84 infra.
23
hensive plan, at least in the sense that he is not seeking
review of them by this Court. However, he is still
required by the Clean Air Act to promulgate a plan
which will achieve statutory air quality standards. To
do this he will be required to develop additional
programs, all of which, under his proposed regulatory
scheme, he will then require the States to set up and
enforce.
The States are of the view, for reasons set forth in
this brief, that the Administrator’s proposed scheme
would be invalid. However, the States urge that such a
regulatory scheme is not before the Court at this time
and that the Court should render a decision on the
regulations as the Administrator has issued them and
not as he would now choose to rewrite them.
B. IMPLEMENTATION AND ENFORCEMENT OF ANY
EMISSION INSPECTION AND MAINTENANCE
REGULATIONS PROMULGATED By THE
ADMINISTRATOR WOULD REQUIRE THE States To
ENACT LEGISLATION AND Apopt REGULATIONS.
The Administrator argues that the States will be
required to take three steps under the inspection and
maintenance regulations, as he now chooses to construe
them. First, the States must implement the program.
Second, the States must deny registration to vehicles
that fail to comply with whatever emission standards
he issues. Finally, the States will be required to enforce
their motor vehicle laws against drivers of vehicles that
do not comply with the emission standards. According
to the Administrator’s current position, nothing in his
new regulatory scheme requires the States to legislate
or adopt regulations. If it does, the Administrator
concedes that the regulations would be invalid.
Any regulations requiring the States to implement
and enforce a federal regulatory scheme will require the
States to enact laws and regulations and engage in
other sovereign acts of governance. For each State, the
24
single most important piece of legislation is its annual
operating budget. It is that legislation which estab-
lishes priorities and programs through the appropria-
tion of funds. The Administrator recognized that
legislation was a precondition to an effective State
transportation control plan when he disapproved the
States’ plans on the grounds that they failed to
demonstrate the legal basis for implementation and
when he issued his substitute plans which require the
States to submit the necessary legislation and regula-
tion as part of their compliance schedules.
His contorted efforts to avoid that fact at this late
date, and his statement that the federal regulations
themselves provide the basis for the Stat ‘o carry out
his program,*4 demonstrate his profounau misunder-
standing of the nature of our federal system of
government. State governments derive their powers to
act from state laws and constitutions. A federal official
has no power under the Commerce Clause, the Neces-
sary and Proper Clause, or the Supremacy Clause to
confer upon state agencies or officials powers which the
state legislature has not granted, and then require those
state officials to exercise those powers under threat of
criminal and civil sanctions. The Administrator cites
no decision of this Court, or any court, in support of his
assertion of the power to do so.
There is also no authority under the States’ laws now
in effect to enforce the Administrator’s emission
34 Brief for the Federal Parties at 53-54. The Regional
Administrator of Region VI has either not been informed of
the Administrator’s novel constitutional theories or he finds
them unpersuasive. In his comments to the proposed
amendments to the transportation control plans for the
Texas AQCR’s, the Regional Administrator stated that
“implementation of any mandatory state inspection and
maintenance program in Texas will not begin until the Texas
legislature takes affirmative action on such a program.” 41
Fed. Reg. 49848 (November 11, 1976).
35 See Argument III of this Brief.
25
inspection and maintenance program. For example, his
regulations require the States to conduct spot checks
and to impose penalties on individuals who modify
their vehicles after inspection so that those vehicles no
longer meet the emission standards.* The States
cannot impose a primary duty on motor vehicie owners
to maintain the required emission controls, create
enforcement procedures and impose sanctions against
violators without enacting legislation and adopting
regulations. If the Administrator were to issue federal
regulations imposing such a duty on private individuals
and creating sanctions for violations, then the States,
in the absence of state enabling legislation, would have
no authority to enforce, and could not be compelled to
enforce, those regulations.*’ If the federal regulations
provided for criminal sanctions, the state courts could
not exercise jurisdiction over violations unless Congress
specifically so provided.**
In summary, the Administrator concedes that he
cannot directly order the States to legislate, but he
claims that he can create and describe a particular
governmental program and then order the States to
establish that program. That “implementation and
enforcement” of the federally dictated program neces-
sarily requires the States to legislate and regulate is not
viewed by the Administrator as significant.
The States submit that the Administrator’s conces-
sions in his opening brief represent a transparent effort
to salvage the device he seized upon to avoid his
statutory responsibility to fund and enforce his own
36 See, e.g., 40 C.F.R. §52.490(c)(4), 52.1089(c)(4),
52.2441 (c)(4).
37 See generally, Charles Warren, Federal Criminal Laws
and the State Courts, 38 Harv. L. Rev. 545, 546 (1925).
38 18 U.S.C. 3231 provides that “[t]he district courts of the
United States shall have original jurisdiction, exclusive of
the courts of the States, of all offenses against the laws of the
United States.”
26
programs in the event the States were unable or
unwilling to act. The Administrator’s regulations, both
as promulgated and as proposed, require the States to
enact laws and regulations, and in so doing violate both
the Clean Air Act and the Constitution of the United
States.
Il.
THE ADMINISTRATOR LACKS AUTHORITY UNDER THE
CLEAN AIR ACT TO REQUIRE THE STATES TO ENACT LAWS,
ADOPT REGULATIONS, AND ENFORCE FEDERALLY MAN-
DATED REGULATORY PROGRAMS.
The Administrator has endeavored in his opening
brief at pages 26 through 40 (particularly pp. 36-40) to
link together Section 110 of the Clean Air Act, relating
to plan development, and Section 113, relating to
federal enforcement of plan violations. This effort is
made to support a finding not simply that a state is a
“person” but that it is a “person. . . in violation” of the
Act when it fails to legislate against, appropriate
monies for and otherwise regulate according to federal
standards the pollution-creating activities of its own
private citizens. This tour de force is aided by the
mechanism of an extraordinary, one-paragraph EPA
regulation (40 C.F.R. §52.23), the full text of which is set
out at page 31 infra, which states that a “person or
governmental entity” becomes subject to the civil and
criminal sanctions of Section 113 when it fails to
comply with federal implementation plan regulations.
The emission inspection and maintenance of private
vehicles, bus lane and bus fleet “strategies” are, of
course, just such regulations.
Ordinary principles of statutory construction as well
as the legislative history of not only Section 110 and
Section 113, but of the entire Clean Air Act and its
predecessors dating from 1955, provide no basis
whatsoever for this Procrustean analysis. Congress
27
provided a straight-forward approach for curing inade-
quacies in state plans or inabilities of states to carry out
plans, namely the assumption by EPA, with federal
dollars and staff under a federal plan, of the enforce-
ment function against private citizens in violation.
Congress did not offer EPA the option of redelegating
this function. This being the case, the Administrator’s
word games (indirect/direct pollution sources; indirect/
direct state legislation requirement; state as polluter/
state as operator of pollution-creating source/state as
state) pale into insignificance and irrelevance.
A. THE 1970 AMENDMENTS To THE CLEAN AIR ACT
Do Not Mark A DEPARTURE FROM THE STATUTE’S
History Or COOPERATIVE FEDERALISM.
The 1963 Clean Air Act established the principle of
deference to rather than coercion of the states in air
pollution control matters.*? Section 1 of that Act for the
first time provided, in relevant part “... that the
prevention and control of air pollution at its source is
the primary responsibility of states and local govern-
ments .. .”*° Far from evidencing any intent to coerce
state action, the role of the federal government was
clearly to be one of cooperating with and encouraging
state efforts. The major innovation in the 1963 Clean
Air Act was that the federal government assumed a
more prominent role in that it was required to set non-
mandatory air quality criteria. It could intervene
directly when the states were unable to cope with an air
pollution emergency.
3° Pub. L. 88-206, 77 Stat. 392.
‘© The concept of primary state and local responsibility
was taken directly from the Senate Report on the 1955 air
pollution act (Act of July 14, 1955, ch. 360, 69 Stat. 322),
which merely provided research funds and technical assist-
ance to the states.
28
Still greater federal involvement arose from amend-
ments to the basic Act in 1965‘! and 1967.42 The 1965
Act first brought the federal government into the area
of auto emission controls by placing standard-setting
powers within federal jurisdiction. That Act was also
the first to impose mandatory federal air quality
criteria, with the states retaining the role of setting
emission standards and developing implementation
plans. The 1967 Act went further in that direction by
granting the federal government the exclusive author-
ity to set not just criteria but the emission levels of
automobiles.
The 1970 amendments are merely an extension of
prior amendments which accorded to the federal
government increasing responsibilities for the direct
enforcement of pollution controls. As discussed below,
there is nothing in the history of the 1970 amendments
which would support the conclusion that Congress
intended a marked departure from this historical trend
by using the federal commerce power to commandeer
the police power of the states, an action never before
attempted in air pollution legislation or, for that matter,
in any legislation.
B. THe Structure Or THE CLEAN AIR ACT
CONTEMPLATES THAT STATES MiGHTt Nort Act,
THE SoLe REMEDY For SucH INACTION BEING
FEDERAL PLANNING AND ENFORCEMENT.
Section 110 of the Clean Air Act** provides that
“felach State shall ... adopt and submit to the
Administrator . . . a plan which provides for implemen-
tation, maintenance and enforcement of such primary
standard in each air quality control region (or portion
41 National Emissions Standards Act, Pub. L. 89-272, 79
Stat. 992.
‘2 Air Quality Act of 1967, Pub. L. 90-148, 81 Stat. 485.
43 42 U.S.C. 1857c-5.
29
thereof) within such State.”*4 Within four months after
the date required for submission of a plan, the
Administrator must approve or disapprove the plan, in
whole or in part.*®
In the event that the state fails to submit a plan or
the plan is inadequate or the state fails to revise its
plan adequately, the Administrator’s course of action is
charted:
The Administrator shall, after consideration of any
State hearing record, promptly prepare and publish
proposed regulations setting forth an - yore
tion plan, or portion thereof, for a State... .*6
Thus, the states are given the italiani of
retaining responsibility for the design and implementa-
tion of air pollution strategies. In the event the states
decline to act, the Act authorizes the federal agency to
occupy the field itself and to enact the regulations
necessary to the achievement of air quality standards.
In light of the fact that the Administrator is
specifically directed to proraulgate a plan himself in
case the state fails to submit a plan, he does not have
the alternative or concurrent remedy of jailing or fining
officials of a recalcitrant state for failure to submit a
plan. The Administrator’s sole remedy is tc promulgate
his plan. As the court stated in Plan for Arcadia v.
Anita Associates, 379 F. Supp. 311, 314 (C.D. Calif.
1973), aff'd, 501 F.2d 390 (9th Cir. 1974):4’
** 42 U.S.C. 1847c-5(a)(1); Clean Air Act §110(a)(1). See also
Clean Air Act §107(a) (42 U.S.C. 1857c-2(a)) which provides
“[elach State shall have the primary responsibility for
assuring air quality within the entire geographic area
ee such State by submitting an Soabementation
Os 2
45 42 U.S.C. 1857c-5(a)(2); Clean Air Act §110(a)(2).
46 42 U.S.C. 1857c-5(c)(1); Clean Air Act §110(c)(1).
'’ In that case private citizens sought (1) to enjoin further
construction of a shopping center on the ground that, when
completed, it would attract such concentration of vehicular
30
[T}here is no judicial remedy provided in the Act or
elsewhere for the failure of the state to adopt and
submit a plan. The only consequence of a state’s
failure to submit a plan is that the Administrator
then, has the duty to impose a plan upon the state,
and no other remedy against the state exists.
Section 113 of the Clean Air Act*® in turn provides
that the state shall have an initial opportunity to
enforce the applicable implementation plan. If the
Administrator finds that the state is not enforcing the
plan in an individual instance*® or is allowing wide-
spread violations,*° the Administrator notifies the state,
giving it thirty days to cure its failures. If the state still
has not acted, the Administrator either takes action
against the individual violator, or enforces the Act
against all violators, depending upon whether the
state’s failure to act was specific or general. Section
113(a\2) authorizes the Administrator to take over
direct federal enforcement of an implementation plan
when he discovers widespread failure of the state to
enforce the plan, and it carefully circumscribes the
manner in which the Administrator may act.
Thus, Congress specifically considered the eventual-
ity that the states might fail to administer or enforce an
applicable implementation plan. The remedy Congress
provided for such a failure by a state is identical to the
remedy available should a state fail to submit an
implementation plan in the first instance as required by
Section 110 of the Act: the Administrator simply steps
in and takes over the function himself. There is no hint
traffic as would raise ambient air pollution above the
national air quality standards established pursuant to the
Clean Air Act, and (2) to compel the State of California to
comply with §110 of the Clean Air Act (42 U.S.C. 1857c-5),
which requires each state to submit a plan to the Administra-
tor.
4* 42 U.S.C. 1857c-8.
49 42 U.S.C. 1857c-8(a)(1); Clean Air Act $11!3(a)(1).
50 42 U.S.C. 1857c-8(a)(2); Clean Air Act §113(a)(2).
31
of any compulsion upon the state to act or of fines or
imprisonment to be visited upon state officials who
decline to do so. The sole “stick” which Congress
intended to take to the states is that, to the extent that
they failed to enforce federal standards and regulations
with respect to air pollution, they would have enforce-
ment matters removed from their hands.
Although the entire history and structure of the Clean
Air Act evidences a pervasive deference to the states
and negates any intention to coerce the states to act,
the Administrator attempts to tie the statute in knots.
Section 113 offers the states the opportunity to
administer and implement a plan. The only result of
failure to do so is federal enforcement. The Administra-
tor, by ordering the states to administer and enforce his
plans and by denominating failure to do so a violation
under Section 113, is seeking to frustrate congressional
intent.
The Administrator’s regulation at issue provides:
Failure to comply with any provisions [of the
federal regulations on “Approval and Promulga-
tion of Implementation Plans”] . . . shall render
the person or governmental entity so failing to
comply in violation of a requirement of an
applicable implementation plan and subject to
enforcement action under section 113 of the Clean
Air Act. With regard to compliance schedules, a
person or Governmental entity will be considered
to have failed to comply with the requirements [of
the federal regulations on “Approval and Promul-
gation of Implementation Plans”] if it fails to
timely submit any required compliance schedule, if
the compliance schedule when submitted does not
contain each of the elements it is required to
contain, or if the person or Governmental entity
fails to comply with such schedule.*!
5! 40 C.F.R. §52.23, promulgated at 39 Fed. Reg. 33512
(Sept. 18, 1974), part of “General Provisions” applicable to all
implementation plans. Similar provisions were theretofore
contained in the federal plans for the AQCR.
32
Section 113(c)52 of the Clean Air Act provides that for a
first violation a person may be fined up to $25,000 per
day of violation or imprisoned for not more than a year,
or both, and, for a second and further violation, a fine
of up to $50,000 per day of violation or imprisonment
for a maximum of two years, or both, may be imposed.
Congress never intended to expose state officials to
fines or imprisonment for failure to successfully carry
out the Administrator’s own statutory responsibilities.
The Administrator's actions are a _ perversion of
congressional intent. He seeks to ignore that intent by
semantic sleight of hand and by rummaging about in
the ashcans of the legislative process for the scattered,
chance remarks of a few senators and congressmen. It
is to these matters that we now turn.
C. THe LANGUAGE OF THE CLEAN AIR Act DoEs Not
SUPPORT THE ADMINISTRATOR'S POSITION THAT
THE States May BE ForcepD To ADMINISTER AND
ENFORCE IMPLEMENTATION PLANS.
1. Section 113 Permits Sanctions Against A
State That Pollutes The Air, But Does Not
Contemplate Finding A State “In Viola-
tion”’ Of A Plan If It Chooses Not To
Regulate Polluters As The Administrator
Directs.
Properly seen, the intent of Section 113 is not to
coerce a state to act but to prohibit the Administrator
from acting until he has satisfied the precondition of
deferring to that state. The thrust of that section is that
the Administrator may not inject himself into an
enforcement situation unless the state is given the
opportunity to act first.
Surely, if Congress had intended to take the unprece-
dented step of coercing a state to act in order to
conserve federal resources, it would have granted the
Administrator the power in clear and specific language
52 42 U.S.C. 1857c-8(c).
me mes
Ese ee emo ereyeeerees
ee
33
to order the state to take action against violators.®®
Similarly Congress would have used clear and specific
language if it intended to empower the Adminstrator to
proceed against state officials under sections 113(b) or
(c) if the state failed to act.54 If the violations are
“widespread” (section 113(a)(2)), such a course would be
far more “efficient” from the Administrator’s point of
view. Yet Congress did not so provide.
The Administrator’s enforcement regulation endea-
vors to place the failure of a state to legislate or
otherwise act according to his directions within the
class of “violation of any requirement of an applicable
implementation plan.” The statute, however, does not
support this approach. Section 113(a)(2) deals with a
situation where “violations appear to result from a
failure of the State, in which the plan applies, to enforce
the plan effectively” (emphasis added). There is no hint
that the failure of a state to act would, in itself, be
a violation on the part of that state or its officials. The
conclusion is inevitable that the term “violation” refers
to pollution “result{ing] from” the emission of pollu-
tants into the air in contravention of the provisions of
an applicable implementation plan.
Before federal enforcement of a plan is allowed, for
example, two notices must be given: one notice to the
state and a second notice to the individual polluter, in
case of a single violation, or to the public in case of
numerous individual violations. If Congress had
expected that the states would be compelled, under pain
of federal penalties, to use their police power to enforce
’ Under Section 113 (a) (1), at the same time an individual
violator is given notice of his violation the state is, likewise,
advised of the violation and given an opportunity to bring
the violator into compliance before EPA may pursue federal
enforcement action.
*4 But such action, even if authorized by the Clean Air Act,
would be unconstitutional. See Argument III infra.
34
the plan, there would be no reason for requiring that
two notices be given.
The Administrator continues by maintaining that,
because the term “‘person”’ is defined in section 302(e) of
the Act®® to include a state, he may bring an action
against a state for failing to exercise its police powers to
control private polluters.6 This is a non sequitur.
Section 113 des not authorize enforcement actions
against any person, but only against persons “in
violation”. The controlling question is not whether a
state is a “person” under the Clean Air Act, but
whether a state’s failure to bow to the Administrator’s
demand that it exercise its police power in a manner
determined by him, in order to control private pollution-
causing activities which the Administrator is em-
powered to control, was intended by Congress to be a
“violation” of an implementation plan.
The obvious reason why “person” was defined so as
to include a state was that Congress intended to
regulate state pollution-causing activities in the same
manner as private pollution-causing activities. Thus, if
a state owned an incinerator or a fleet of motor vehicles,
those sources must conform to otherwise valid federal
standards. Nothing in the Clean Air Act, however,
suggests that the Administrator could force the states
to govern the pollution-creating activities of others as
he directs, and fine or imprison state officials should
they refuse. The reason such sanctions cannot be
imposed on a state is not because the state fails to
qualify as a “person,” but because the inability or
unwillingness of a state to yield to the Administrator’s
dictates is not a “violation”. The Administrator was
never empowered to make such demands.
In short, the argument that Congress left such a
coercive and unprecedented intent lurking within the
°° 42 U.S.C. 1857h(e).
© Brief for the Federal Parties at 38-40.
35
definition of “person” cannot prevail. As the Ninth
Circuit observed:
“The Administrator had no difficulty in making
clear his intention to impose sanctions on States
not enforcing effectively implementation plans.
Congress can be expected to have no less capacity
for clarity.*’
2. No Valid Distinction Can Be Made Under
The Clean Air Act Between Forcing The
States To Legislate And Forcing The
States To Administer EPA-Promulgated
Transportation Control Programs.
The Administrator, relying on the opinion of the
District of Columbia Court of Appeals, seeks to find a
distinction under the Clean Air Act between ordering
the states to adopt particular statutes and ordering
them to implement federal regulations, which imple-
mentation necessarily requires the adoption of auxil-
iary statutes or state regulations.** In District of
Columbia v. Train, supra, the court found it permissible
under the Clean Air Act for the Administrator to force
the states to purchase a fleet of buses, install bus lanes,
and to deny registration of vehicles which do not pass a
federally administered inspection test. This holding is
directly contrary to those of the Fourth and Ninth
Circuits.*”
The Administrator offers no rationale for this
“distinction”. The unpersuasive rationale of the District
of Columbia Court of Appeals for holding that those
5° Brown v. Environmental Protection Agency, 521 F.2d
827, 834 (9th Cir. 1975). See, Hancock v. Train, 96 S. Ct. 2006,
2022 (1976); Friends of The Earth v. Carey, 74 Civ. 4500 at 7-
8, 9 ERC 1007 (S.D.N.Y., July 13, 1976).
5* Brief for the Federal Parties at 20 n. 14, 36. District of
Columbia v. Train, 521 F.2d 971, 987-988 (D.C. Cir. 1975).
5° See, e.g., Maryland v. Environmental Protection Agency,
530 F.2d, 215, 229 (4th Cir. 1975); Brown v. Environmental
Protection Agency, 521 F.2d 827, 831-832 (9th Cir. 1975).
36
programs are authorized by the Clean Air Act can be
summarized as follows:
1) Upholding such orders “would not be directly
contrary to the requirement in Section 110(c) that the
Administrator, and not the states, promulgate the
substitute regulations when state submitted plans are
found to be inadequate.” Jd. at 987.
2) “{Njowhere in the Act is the Administrator
specifically told that he lacks authority to force the
states to administer the plan he has promulgated when
the plan is directed to a traditional state function such
as registering and licensing motor vehicles” Id.
3) The language of the Act is “broad enough” to
encompass forcing the states to establish bus lanes and
purchase bus fleets. Jd. at 983.6°
The States will demonstrate that the above reasons
cannot survive scrutiny. Moreover, holding that the
Administrator may not directly order states to legislate,
but may indirectly do so by ordering them to achieve
the results specified in the Administrator’s regulations,
making legislation inevitable, exalts form over sub-
stance.
a. All Of The Sections Of The Clean Air Act
Must Be Read Jn Pari Materia. Fail
One cannot conclude that the Clean Air Act man-
dates state enforcement of implementation plans
merely because such a concept is not contrary to
Section 110(c) of the Act. All of the sections of the Clean
Air Act must be read in pari materia. By doing so, the
structure, language and history of the Act reflect a
congressional intent that the role of the federal
government is to step in and take over control of air
60 The case goes on to conclude from the legislative history
that Congress intended the states to enforce an inspection
and maintenance program.
37
pollution itself, should the states fail to act. It is
submitted, therefore, that the court in District of
Columbia v. Train, supra, did not go far enough in
’ analyzing the Act by merely finding EPA’s approach
not in conflict with section 110(c).
b. No Valid Distinction Exists Between
Directly Forcing The States To Legislate
And Forcing Them To Enforce :‘ederal
Regulations Which Require Legislation.
The basis of the Administrator’s “distinction”, which
he borrowed from the opinion of the District of
Columbia Court of Appeals, is that ordering the states
to enact a particular statute compels them to “fill in the
details of the Administrator’s regulations”, while
ordering them to implement federally imposed regula-
tions does not. Id. at 987.
This, it is respectfully submitted, makes no sense.
Under the Administrator’s theory there is nothing, for
example, which would prohibit him from announcing
an extremely detailed program which a state is then
ordered to establish by enacting legislation and
regulations. The state would thus be spared the burden
of “filling in the details,” but this would not lend
validity to the Administrator’s action, as he concedes.
On the other hand, if the Administrator promulgates a
vague regulation which the state is required to enforce
and under which it must enact auxiliary statutes or
regulations to carry out, it would doubtless be necessary
for the states to “fill in the details,” even though they
had not been directly ordered to enact statutes.
Carrying out the mandates of federally imposed
regulations, then, is just as intrusive into state
sovereignty as requiring state legislation to “fill in the
details.”
The District of Columbia Court of Appeals prefaced
the drawing of this distinction with the caveat that
38
there may “arguably” be a difference and noting that it
may be “argued” that the states can be ordered to take
action to implement the federally imposed regulations.
Id. at 987. It appears that the court was not adopting
these positions for itself, but merely indicating that
such positions can be “argued.” While there is nothing
offensive in noting that these positions are “arguable,”
the court never concludes that the argument has merit.
Rather, it was assumed that the arguments were
meritorious, thus enabling the court to reach the
constitutional issues.
This peculiar approach is directly contrary to the
canon which that court announced at the beginning of
its opinion:
In keeping with the general policy of federal
courts that constitutional questions should be
avoided if the case can be decided on statutory
grounds, see Rescue Army v. Municipal Court, 331
U.S. 549, 568-69, 67 S. Ct. 1409, 91 L. Ed. 1666
(1947), we shall first consider petitioners’ claim
that the Clean Air Act does not authorize the EPA
to require the states to enact laws or administ«’
and enforce implementation plans. Id. at 981.
It is unclear why the court did not follow through on its
promise to do just that. We urge this / »urt to do so.
c. The Failure Of The States To he ;rulate Is
Not An “Indirect Source” Of Air Pollu-
tion.
Superimposed upon the “distinction” the Administra-
tor perceives between ordering the states to legislate
directly and ordering them to do so indirectly is the
equally untenable proposition that the States, because
they are owners and operators of the public highways,
are polluters and may be forced to regulate and abate
the pollution of others “like any other owner-operator of
a pollution source.’’®! In advancing this proposition, the
61 The States take the view that direct pollution by the
state from a stationary source, such as an incinerator, may
39
Administrator stretches well beyond the breaking point
the theory of the District of Columbia of Court of
Appeals, analyzed above.
Assuming for the moment that somehow bus pur-
chases and bus lanes, or the lack thereof, are “indirect
sources of pollution,”®? for which the States bear
responsibility under the statute, it does not follow that
the Administrator may force the States as “polluters” to
regulate by requiring them to undertake inspection and
maintenance programs. The remedy, if any, would be
direct federal regulation of that pollution, rather than a
federally announced requirement that the State under-
take such regulation.
More fundamentally though, the Court of Appeals’
theory, even as to bus purchases and bus lanes, falls of
its own weight:
The streets and highways and bus systems of the
states are not being regulated by the Administrator
as direct emitters of pollution but rather as factors
which influence the use of pollution sources by
other parties. We believe that these state-owned
transportation systems are analogous to the
railroad operated by the state in United States v
California, supra. This situation is similar to
be the subject of EPA sanction. But it is not pollution of that
type which is the subject of this litigation.
62 Nowhere in the Clean Air Act do the phrases “direct” or
“indirect” sources appear, despite the Administrator's re-
peated reliance on them in his brief, nor is this distinction
developed in the regulations romulgated thereunder. The
potential for confusion poser by the introduction of this
terminology is best illustrated by the disarray on this point
found in the Administrator’s own brief. At pages 21 through
25 (particularly e 23), the Administrator quotes himself at
length and in the space of one paragraph describes roads,
freeways and parking facilities first as “direct” and then as
“indirect” sources of air pollution. Perpetuating this confu-
sion, at page 29 of his brief, the Administrator now
characterizes highways and parking garages as “State-
owned indirect sources.”
40
federal statutes passed in the 1890’s requiring the
railroads to operate safe trains. District of Colum-
bia v. Train, supra at 989.
The puzzling aspect of this reasoning is best identified
in an excerpt from Friends of the Earth v. Carey, supra
n. 57 at 1017 (citizens’ suit on remand from Court of
Appeals for the Second Circuit to enforce compliance
with New York’s Metropolitan Transportation Control
Plan):
The [District of Columbia] court’s upholding the
requirements relating to the construction of bus
lanes and purchase of additional buses merits
special attention. Clearly, the buses themselves are
not being regulated as direct polluters since the
addition of buses to the fleet could only mean
additional emissions from this source. The bus
system would not even appear to be a true indirect
source of pollution since it in no way encourages
private automobile operation. The logical question
that follows is could a private bus company be
ordered by the Administrator to purchase addi-
tional buses.
It would appear that the bus system must have
been seen as a useful tool in discouraging automo-
bile traffic which tool happened to be in the hands
of the state. Whether or not such a tool, however
useful, is subject to federal regulations which
impose affirmative action requirements as opposed
to negative restraints is raised here only as an aid
to examining New York’s TCP.
The major purposes of the states’ system of licensing
vehicles and operators are safety, revenue collection
and identification of vehicles. Nevertheless, the Admin-
istrator, through another of his leaps in logic, submits
that the states’ system of “licensing vehicles and
operators” has somehow “encouraged the growth of
automobile use to its present levels.’’®* Moreover, it is
the absence of an inspection and maintenance aspect
from that system which is alleged to be particularly
63 Brief for the Federal Parties at 22.
41
offensive. Once again, the Administrator is not direct-
ing his attention toward pollution-creating activities of
states and continues to ignore his announced constraint
that “the power asserted by the Administrator is only
over the State as polluter, not over the State as a
State.’’4
To make his argument more palatable, the Adminis-
trator seeks to narrow his classification of the states to
include them with any other private owner-operator of a
pollution-creating source. He insists that a state may be
forced to act only to the extent it is responsible for the
pollution and “only when its responsibilities stem, not
from the mere failure to regulate private activities, but
from its ownership and contro! of the facilities used in
the process of contamination of the air.”®° The Admin-
istrator, however, is hard put to explain how forcing the
states through their police power to conduct inspection
and maintenance programs and to coerce their own
citizens to participate in such programs can be
rationally linked to their essentially neutral role in
owning and operating the roads.
The Administrator’s final stratagem is that the states
are operating a pollution-creating source “by providing
a system of traffic laws.’®* How can traffic laws
encourage pollution except under the theory that, in the
absence of such laws, citizens would be hesitant to drive
automobiles, would leave them at home and would,
therefore, cause less pollution?
The major fallacy in all of the Administrator’s
gyrations is that he seeks to characterize the state as an
ordinary operator of an “indirect source” of pollution,
but with this as his sole premise, he seeks to force the
states to use their police powers as sovereign to regulate
64 Jd. at 20.
65 Jd.
66 Jd. at 22.
42
the activities of those other than themselves. The
Administrator in the retreat described earlier, see p. 18,
supra, now admits that he ca*:not do this directly.*®’ It is
submitted that neither can he do this indirectly by
stretching his concept of “indirect source” beyond all
coherent recognition. If Congress had intended to alter
fundamentally our federal system and authorize a
federal employee to force the states to exercise their
police powers, it would have plainly endeavored to do
so. Rather we are asked to extract such an intent from a
strained and labyrinthine rationale.
_ To shore up his extraordinary statutory construction
theories, the Administrator relies on several cases.
These cases share a common irrelevance: they do not
relate to the definition of congressional intent in the
Clean Air Act. It does not advance this inquiry one whit
to argue that in some other context Congress unequivo-
cally undertook to regulate some arguably “indirect”
phenomenon. If any significance can be attached to
these cases, it is that in them Congress clearly
articulated its intent. Congress must not now be
presumed to have attempted to appropriate the police
powers of the states by strained inference.
The Administrator first relies, as did the District of
Columbia Court of Appeals, on United States uv.
California, 297 U.S. 175 (1936), for the proposition that,
just as Congress may require state-owned railroads to
comply with federal safety regulations, it may order
states to see that private automobiles comply with
federal pollution requirements.** The problems with this
analysis are manifold: 1) the states there were not being
asked to regulate the unsafe conduct of others; 2)
Congress was not attempting to command the exercise
of the states’ police power in a particular way; and 3)
the congressional intent was unequivocal.
67 Jd. at 20, n. 14.
68 Jd. at 22; District of Columbia v. Train, supra at 989.
43
The Administrator relies upon United States v.
Northwestern Pac. R. Co., 235 Fed. 965 (N.D. Calif.,
1916), for the concept that those who provide transpor-
tation facilities for use by others may be charged with
controlling the manner in which such facilities are
used. In that case the court held that a railroad
company which owned tracks could be held responsible
for unsafe cars being hauled on those tracks, under a
statute which forbade rai roads from “permitting to be
hauled or used on its line any car in violation of’
federal safety requirements.®® Again in that case, 1)
Congress spoke plainly and unequivocally; 2) it was not
speaking to a state and, therefore, 3) that case did not
involve commands that state police powers be used in a
particular way. Also relied upon is a statute forbidding
airlines from transporting persons unless those persons
agree to the conduct of security inspections.”° For the
same reasons stated above, the existence of such a
statute leads to no inference relevant to this case.
For identical reasons, Griggs v. Allegheny County,
369 U.S. 84 (1962), upon which the Administrator relies,
is not relevant to this case.” In that case the Court held
that airport owners could be held financially accounta-
ble for constitutional “takings” caused by noise
emanating from airplanes using their facilities. That
case does not involve congressional commands that the
states exercise their police powers in any particular
way, nor did it involve any feats of prestidigitation with
congressional! intent: in fact, no statute was involved.
Finally, Illinois v. City of Milwaukee, 406 U.S. 91
(1972),’* a nuisance case dealing with municipal sewage
discharges, treats only the narrow federal jurisdic-
tional issue and is not on point. It does not relate to an
6° Brief for the Federal Parties at 25 n. 17.
7 Id.
7 Td. at 25-26.
72 Id. at 26.
44
inquiry into congressional intent with regard to the
Clean Air Act, nor does it even hint at the proposition
that Congress, or a court applying the doctrine of
nuisance for that matter, can force a state to exercise its
police power to regulate the pollution-causing activities
of others.
A final problem with the Administrator’s “indirect
source” argument is that it knows no rational bounds,
certainly not those the Administrator has set for it. If,
indeed, an “indirect source” is a facility that encour-
ages pollution by servi.g as an attraction to or
convenience for pollution sources, it can be said with
equal force that the states may be forced to regulate
stationary sources, the siting and construction of which
are encouraged by states and their political subdivi-
sions through land use and tax policies, other incen-
tives and, in some instances, through absence of
regulations. In constructing his maze, then, the Admin-
istrator draws a distinction without a _ difference
between “indirect sources” arising from mobile sources
and those arising from stationary sources.
d. There Is Simply No Persuasive Evidence
Of Congressional Intent To Invade A
Traditional State Function.
Concerning the Administrator’s licensing prohibition,
the court in District of Columbia v. Train, supra, noted
that “. . . the specific language of the Act suggests that
Congress did not confer such authority any more than
it intended that the states would be ordered to adopt
statutes.” Id. at 987. The court continued however:
On the other hand, nowhere in the Act is the
Administrator specifically told that he lacks
authority to force the states to administer the plans
he has promulgated when the plan is directed to a
traditional state function such as registering and
licensing motor vehicles. Id.
45
The court reasoned that where the Administrator
invades a traditional state function, in the absence of a
specific prohibition, there is a presumption that
Congress intended that invasion. Actually, the pre-
sumption, carefully developed by this Court, is just the
opposite, namely that, in the absence of a clear
congressional intent to preempt state prerogatives, the
action by the state is not to be regarded as inconsistent
with an act of Congress, and the reserved power of the
state is thus to be preserved.
Any presumption of congressional intent to regulate
state activities, such as that asserted by the Adminis-
trator, contravenes the traditional application of the
Supremacy Clause in areas of potential federal-state
conflicts. As was stated long ago by this Court, in
Missouri, Kansas & Texas Ry. v. Haber, 169 U.S. 613,
623 (1898):
. . . [It is the] settled rule that a statute enacted in
execution of a reserved power of the State is not to
be regarded as inconsistent with an act of Con-
gress passed in the execution of a clear power
under the Constitution, unless the repugnance or
conflict is so direct and positive that the two acts
cannot be reconciled or stand together.
The Court has more recently restated and reaffirmed
this precept in Florida Lime and Avocado Growers v.
Paul, 373 U.S. 132, 142 (1963):
The principle to be derived from our decisions is
that federal regulation of a field of commerce
should not be deemed preemptive of state regula-
tory power in the absence of persuasive reasons —
either that the nature of the regulated subject
matter permits no other conclusion, or that the
Congress has unmistakably so ordained.
See also, Head v. New Mexico Board, 374 U.S. 424, 430
(1963).
The statutes and regulations before the Court here
fail to meet either of the Florida Lime tests. First, the
46
state activities in question are not in conflict with the
enforcement of a federal statute or regulation. When a
state registers a vehicle, such an act indicates no more
than compliance of that vehicle with specified state
requirements, typically concerning ownership, taxes,
and safety. It does not permit operation of a vehicle in
violation of federal requirements. Accordingly, there is
no conflict, inasmuch as the operator must comply with
both federal and state law. Second, as the Court
acknowledged in District of Columbia v. Train, supra at
987, the Clean Air Act contains no unmistakable
expression that state registration laws are preempted or
otherwise void unless they apply the federal inspection
standards.
The presumption in question is particularly well
established when the regulated activity lies within the
domain of traditional state police power. This Court has
said:
The settled mandate governing this inquiry, in
deference to the fact that a state regulation of this
kind is an exercise of the ‘historic police powers of
the States,’ is not to decree such a federal
displacement ‘unless that was the clear and
manifest purpose of Congress.’ Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230.
Florida Lime and Avocado Growers, Inc. v. Paul, supra
at 146.
In applying the presumption specifically to the
Commerce Clause this Court has stated:
As a matter of statutory construction Congres-
sional intention to displace local laws in the
exercise of the commerce power is not, in general,
to be inferred unless clearly indicated by those
considerations which are persuasive of the statu-
tory purpose. This is especially the case when
public safety and health are concerned. Kelly v.
Washington, 302 U.S. 1, 10-14; H.P. Welch v. New
Hampshire, 306 U.S. 79, 85 and cases cited.
47
Maurer v. Hamilton, 309 U.S. 598, 614 (1940).73
Finally, and most specifically, this Court has recog-
nized that the states’ exercise of the police power to
control their streets and highways, including the
registration of vehicles, falls squarely within the
accepted doctrine.
In [Hines v. Davidowitz, 312 U.S. 52], a federal
system of alien registration was held to supersede a
state system of registration. But there we were
dealing with a problem which had an impact on
the general field of foreign relations. The delicacy
of the issues which were posed alone raised grave
questions as to the propriety of allowing a state
system of regulation to function alongside of a
federal system. In that field any ‘concurrent state
power that may exist is restricted to the narrowest
of limits.’ p. 68. Therefore, we were more ready to
conclude that a federal Act in a field that touched
international relations superseded state regulation
than we were in those cases where a State was
exercising its historic powers over such tradition-
ally local matters as public safety and order and
the use of streets and highways. Maurer uv.
Hamilton, supra, . . . We will not lightly infer that
Congress by the mere passage of a federal Act has
impaired the traditional sovereignty of the several
States in that regard.
Allen-Bradley Local v. Board, 315 U.S. 740, 749 (1942)
(emphasis added).
Thus, state regulatory activities, especially those
traditionally of concern to the states, are not deemed to
be superseded by federal law, absent some clear and
unmistakable evidence. For when Congress intends to
73 Likewise in Hancock v. Train, supra n. 57 at p. 35, a
state was suing to compel a federal facility to comply with
the terms of the state’s implementation plan. This Court
refused to bind the federal facilities to the procedural
elements of the plan in the absence of Congress having
expressed ‘‘with satisfactory clarity” an intention to bind the
United States.
48
intrude upon state regulatory authority it knows how to
do so. For example, section 116 of the Act’ states, in
part:
[TJhat if an emission standard limitation is in
effect under an applicable implementation plan
. such state or political subdivision may not
adopt or enforce any emission standard or limita-
tion which is less stringent than the standard of
limitation made under such plan...
The states’ longstanding regulation of motor vehicles
and their licensing should not be subject to the
imposition of a conflicting federal regulation in the
absence of clear congressional intention to override
state regulatory activities. Recognition of the states as
repositories of all powers not surrendered to the federal
government is consonant with the prior decisions of the
Court and, therefore, compels the conclusion that the
presumption of undiminished state regulatory power
should be applied in this case.
Congress has traditionally recognized the presump-
tion of validity of state regulations by seeking to
reconcile federal-state conflicts rather than to exacer-
bate them.
In Maryland v. Environmental Protection Agency,
supra at 228, the Court of Appeals for the Fourth
Circuit referred to the typical congressional enactment,
which has as its purpose the replacement of a state
program by a federal one, as the “alternative whip of
economic pressure and seductive favor.” This concept
has also been commonly referred to as the “carrot-and-
stick” approach. Examples of this method of legislation
are legion, and the Fourth Circuit summarized well
Congress’ use of this economic inducement approach in
the following illustrative situations: the withholding of
federal funds for a state’s failure to comply with the
Hatch Act or the Highway Beautification Act; the
7 42 U.S.C. 1857d-1.
49
withholding of federal project approval for failure to
adopt a 55 m.p.h. speed limit or failure to follow federal
standards under the Occupational Safety and Health
Act. Id.
When legislating in an area in which the states are
known to have prominent regulatory programs in place,
traditionally Congress has been loathe to intervene and
to federalize the area entirely. Instead, it has used
economic incentives to achieve those purposes. Conse-
quently, presumption of an intent to override a state
program, particularly in an area of traditional state
police power activity such as motor vehicle registration,
is wholly inconsistent with the historical approach of
Congress.
D. THE LEGISLATIVE History OF THE 1970
AMENDMENTS Is Devoip Or CONGRESSIONAL
INTENT To Force THE States To Apopt
STATUTES OR To ADMINISTER AND ENFORCE
IMPLEMENTATION PLANS.
As previously submitted, Congress has never contem-
plated authorizing federal officials to require the states
to exercise their police powers in a particular manner.
Bearing in mind that the Clean Air Act imposes both
civil and criminal sanctions on violators, it is inconceiv-
able that such a novel and radical assumption of power
by a federal official could have been intended through
any abstract interpretation of the Clean Air Act.
One searches the legislative history of the Clean Air
Act in vain for even the most oblique mention of jail,
injunctions or fines to be visited upon state governors,
legislators, or agency officials, or any other punitive
actions being taken against a state for failure to carry
out the dictates of the Administrator. The only mention
of the failure of the states to follow the Administrator’s
directions is in the context of the Administrator himself
assuming the enforcement of his plan. The legislative
history is, thus, entirely consistent with the structure
50
and language of the Act, as analyzed above. The
Administrator has failed to produce any support in this
history for his broad assertion of power over state
activities.?> As the Ninth Circuit Court of Appeals
stated in Brown v. Environmental Protection Agency,
supra at 834:
A diligent search of the sections of the Clean Air
Act fails to reveal a single instance in which
Congress explicitly has vested in the Administra-
tor power to compel the states to administer and
enforce regulations promulgated by him designed
to govern polluters, potential or actual, other than
the state, municipality, or political subdivision of
the state. Counsel for the Administrator also have
been unable to guide us to such a provision... .
All that the Administrator puts forth in his brief with
respect to the legislative history of the 1970 Act is one
part of a paragraph citing references which are not
particularly helpful to either this Court or to his cause.
Furthermore, the more expansive footnote to that part
adds nothing but obfuscation to the issues under
discussion. 6
The Administrator then turns the clock forward four
years to rely on what he characterizes as “subsequent”
legislative history supporting a congressional intent to
coerce the states to do the Administrator’s bidding, yet
his examples manifest no such intent. First, the
Administrator argues that “Congress has acted to bar
promulgation of particular transportation control
measures; but the general strategy of requiring States
to implement such measures, where necessary, was left
unaltered.””’ This argument begs the question, assum-
75 Excerpts from the legislative history of the Clean Air
Act which illustrate that Congress never considered coercing
the States to enact laws and regulations and to enforce
federal programs are set forth in Appendix C infra.
76 Brief for the Federal Parties at 32-33 n. 26.
7 Td. at 33-34.
51
ing as it does that Congress intended to mandate a
“general strategy of requiring States to implement such
measures” which it declined to change. Moreover, the
sole example given is restrictions Congress placed in
the 1974 Act on the Administrator’s power to impose
parking surcharges and limitations.”* The states were
not involved in this program. This was not an area
where Congress could have been expected to address
itself to the issue of state coercion or would approve
coercion by its silence. The Administrator points to an
amendment reserving to the states the right to impose
parking restrictions, but, far from supporting the
Administrator’s view, this merely manifests Congress’
traditional policy of not interfering with the exercise of
the police powers of the states.
Finally, the Administrator seeks refuge in the
deletion, in conference committee, of a provision in an
amendment which would have prohibited the Adminis-
trator from establishing bus/carpool lanes. The Com-
mittee is quoted to the effect that the deletion “would
therefore continue to permit preferential bus/carpool
lanes to be implemented by the Environmental Protec-
tion Agency . . .”’® Although there is reference to the
statutory language discussed above, to the effect that
“the basic responsibility rests with State and local
governments,” there is no language supporting the
power of the Administrator to force the states to act, as
opposed to establishing such bus/carpoo] lanes himself
in instances where the states fail to discharge their
“primary responsibility.” The committee avoided direct
confrontation on this score with the statement that “the
conferees do not intend to question . . . the authority of
the Administrator of the Environmental Protection
Agency to impose, [sic] transportation control plans.’’®°
7% Id. at 34.
79 Td. at 35.
8 Td. at 36.
52
E. Tue Stratus Or THE District Or COLUMBIA
UNDER THE CLEAN AIR ACT.
For purposes of the Clean Air Amendments of 1970
the District of Columbia is treated as a state."
However, the legal relationship between the federal
government and the District of Columbia differs
sharply from that of the federal government and the
fifty states. Palmore v. United States, 411 U.S. 389
(1973). Article I, Section 8, Clause 17 of the Constitution
grants exclusive and plenary legislative authority to
Congress over the territory that became the District of
Columbia.
The legislative authority of Congress over the District
of Columbia includes all legislative powers which a
state may exercise over its own affairs. District of
Columbia v. John R. Thompson Co., 346 U.S. 100 (1953).
The legislative authority of Congress over the District
of Columbia also includes its national legislative
powers under the Constitution which are not shared by
the fifty state legislatures. For example, Congress may
enact legislation for the District of Columbia which
includes the regulation of commerce among the several
states whereas state legislatures have very limited
legislative powers to regulate commerce. Neild uv.
District of Columbia, 110 F.2d 246 (D.C. Cir. 1940).
Congress also has the power to delegate portions of
its legislative authority over the District. It has
exercised that authority over the District by making the
District a body corporate for municipal purposes by
law, Section 1-102, D.C. Code, 1973 ed., and has
delegated portions of its legislative authority over the
District to legislative bodies in the District. The
delegation of legislative authority by Congress to the
Legislative Assembly of the District over “rightful
subjects of legislation’’*? was as broad as the traditional
81 42 U.S.C. 1857h(d); Clean Air Act §302 (d).
82 Organic Act of 1871, Act of February 21, 1871, Section 1
et seq., 16 Stat. 419.
53
police power of a state. District of Columbia v. John R.
Thompson Co., supra.
Congress has delegated regulatory authority to the
Government of the District “to protect and enhance the
quality of the District of Columbia’s air resources.”
Section 6-811 D.C. Code, 1973 ed. That Congress was
mindful of existing federal air pollution legislation at
the time of this delegation is evident since it specifically
cited portions of that legislation in the vehicle of
delegation, the District of Columbia Air Pollution
Control Act of 1968. Section 6-812(a)(4), D.C. Code, 1973
ed. However, within that delegation, the Congress did
not also delegate legislative authority over this subject
in the District to the Administrator of the Environmen-
tal Protection Agency or to any other federal agency. It
only required that regulations adopted by the District in
the exercise of this delegation be at least as stringent as
recommendations already made by the Secretary of
Health, Education and Welfare, the predecessor of the
Administrator. Section 6-812(a)(2), D.C. Code, 1973 ed.
Congress, in constructing a legislative program for
air pollution abatement, has not sought to delegate any
portion of its legislative authority over the District by .
delegating portions of that authority to any federal
agency or administrator. When Congress undertook its
most recent revision of its delegation of legislative
authority over the District in the District of Columbia
Self-Government and Governmental Reorganization
Act of 1973, Pub. L. 93-198, 87 Stat. 774, it did not
delegate portions of that legislative authority to any
federal agency or administrator nor did it qualify its
delegation therein to the new District of Columbia
Council so as to require review of Council actions by
any federal agency, reserving that role for itself.
Thus, when it is said that the District is treated as a
state for Clean Air Act purposes, it is essential to
recognize that whether the District is a “state” or “state
54
or territory” within the meaning of any particular
statutory or constitutional provision depends on the
character and aim of the specific provision involved.
District of Columbia v. Carter, 410 U.S. 418, reh. den.,
410 U.S. 959 (1973).
For purposes of the Clean Air Act and the D.C. Air
Pollution Control Act of 1968, the Congress has
delegated some regulatory authority and legislative
authority to the District Government and has reserved
the balance of that authority to itself just as the states
have given limited legislative powers to the United
States and have reserved the balance of those powers to
themselves and to the people in the Tenth Amendment.
Congress has made no delegation of its legislative
jurisdiction over the air resources of the District of
Columbia to the Administrator of the Environmental
Protection Agency. By analogy with the reasoning of
the Court in Palmore v. United States, supra, we may
assume that Congress legislated with care, and that
had it intended to delegate to the Administrator of the
Environmental Protection Agency the authority to
order the adoption of certain laws by the Council of the
District of Columbia, it would have specifically done so,
and not left so important a matter to implication.
Consequently, any attempt by the Administrator to
exercise such legislative authority or to require that
actions be taken by the District of Columbia Council is
clearly unlawful.
III.
THE ADMINISTRATOR LACKS THE POWER UNDER THE
CONSTITUTION OF THE UNITED STATES TO REQUIRE THE
STATES TO ENACT LAWS AND ISSUE REGULATIONS ESTAB-
LISHING AIR POLLUTION CONTROL PROGRAMS.
The Administrator’s regulations ordering the states
to enact legislation and regulations establishing air
pollution control programs and to fund and enforce
55
those programs stand as an unprecedented exercise of
federal power. During the entire course of our constitu-
tional history, no act of Congress or order of a federal
executive officer has sought to coerce the states to
exercise those essential sovereign powers under threat
of civil and criminal sanctions.** The Administrator
finds no support in the logic and structure of the
Constitution, in history or in any decision of this Court
for the entirely novel constitutional theories on which
rests his assertion of the power to conscript the
legislative and executive powers of the States.
A. A Srtate’s Exercise Or Its GOVERNMENTAL
Powers Is Not Commerce Or AN ACTIVITY
AFFECTING COMMERCE SuBJECT To FEDERAL
REGULATION UNDER THE COMMERCE CLAUSE.
Since Chief Justice Marshall’s seminal decision in
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), this
Court has given broad recognition to the “embracing
and penetrating’™ power of Congress to regulate both
private and state governmental activities that affect
interstate commerce. However, the decisions of this
Court have always recognized a limitation on that
power imposed by the very words of the Commerce
“’ Indeed, the States have discovered only two instances in
which similar exercise of power was even contemplated by
the federal government. The drafters of the Emergency Price
Control Act of 1942 considered requiring the state courts to
enforce the criminal provisions of that Act, but the constitu-
tionality of the proposal was considered to be so doubtful that
it was dropped. Hart and Wechsler, The Federal Courts and
the Federal System 437 (Rev. ed. 1973). The Federal No-Fault
Automobile Insurance Act, S. 354, 93d Congress, would have
required state officials to act under and administer a federal
program. Attorney General Levi expressed the view that such
coercion would be unconstitutional. See p. 66 infra. See
Salmon, The Federalist Principle: The Interaction of the
Commerce Clause and the Tenth Amendment in the Clean
~ 2 Colum. J. of Env. Law 290, 295 n. 23, 327-341
(1976).
4 Wickard v. Filburn, 317 U.S. 111, 120 (1942).
56
Clause itself. Mr. Chief Justice Hughes defined that
limitation as follows:
The subject of the federal power is stil! ‘commerce’
and not all commerce but commerce with foreign
nations and among the several States. The expan-
sion of enterprise has vastly increased the interests
of interstate commerce but the constitutional
differentiation still obtains.
Santa Cruz Fruit Packing Company v. NLRB, 303 U.S.
453, 466 (1938).
This Court must, of course, make the ultimate determi-
nation that a particular activity being subjected to
federal regulation is commerce, or has a substantial
effect on commerce in the constitutional sense.
The subject matter limitation on federal power under
the Commerce Clause pose? a particularly difficult
problem for the Administrator in this case. He has
determined that the direct federal development, imple-
mentation, and enforcement of transportation control
strategies is expensive, impractical and inefficient.
Consequently, he has ordered the States to undertake
those actions, and his regulations operate directly and
deliberately on the State’s governmental powers to
make and enforce laws and regulations.
For this Court to sustain his regulations, the
Administrator must establish that the activities which
he seeks to regulate are commerce or that they affect
commerce in the constitutional sense. Yet he acknowl-
edges,*° as indeed he must, that “the power of the states
over commerce has no more been recognized as
commerce than has the power of Congress which is
derived from the Commerce Clause.” Brown v. Environ-
mental Protection Agency, supra at 839. To escape this
dilemma, the Ad-ninistrator relies on what he terms a
fundamental principle, namely that the States’ owner-
** Brief for the Federal Parties at 19.
57
ship and operation of the roads is a “pollution creating
activity” affecting commerce and thus is a proper
subject of federal regulation.
For reasons that have already been discussed at some
length in this brief,** the Administrator’s “fundamental
principle” is in reality no more than an empty fiction. It
represents a thinly veiled attempt to alter the constitu-
tional nature of the activities he seeks to regulate by
changing the words he uses to describe those activities.
In fact, the States own and operate the public highways
only by exercising their governmental powers, and, as
the Administrator himself has recognized, by “the
regulatory, taxing and investment decisions made at all
levels of government.”®’ The Administrator concedes
though that those uniquely governmental decisions are
not subject to the federal commerce power. His
argument collapses from internal contradictions the
moment he states it.
The particular state activities which the Administra-
tor alleges to be pollution-causing are the ownership
and operation of public highways. The term “opera-
tion”, as used by the Administrator, apparently
includes the licensing of vehicles, the enactment of
traffic laws, and the creation and maintenance of a
“transportation system” which has encouraged the use
of “single-passenger automobiles”, instead of mass
transit.** Stripped of its disguises, the Administrator’s
position is that the failure of the States to enact and
enforce laws and regulations to reduce air pollution
from privately owned motor vehicles is the “poliution
creating activity” subject to federal regulation. He finds
no support whatsoever in any decision of this Court for
the proposition that failure of a state to exercise its
% See Argument II C, pp. 38-44 supra.
*7 38 Fed. Reg. 30632 (November 6, 1973); Brief for the
Federal Parties at 21.
88 Brief for the Federal Parties at 22.
58
police power is an activity “affecting commerce” within
the meaning of the Constitution. To the contrary, the
reasoning of this Court in all of the cases involving
Congress’ regulation of state activities lends no support
to the Administrator’s position.
On several occasions this Court has upheld the power
of Congress under the Commerce Clause to regulate
certain state activities.*°® The common denominator of
all of those cases is that the state activity subject to
direct regulation was identical to economic activity
carried on by private persons or enterprises.
Maryland v. Wirtz, 392 U.S. 183 (1968), stands as the
highwater mark of this Court’s recognition of congres-
sional power to regulate state activities under the
Commerce Clause. Although this Court overruled “the
far-reaching implications” of Wirtz last term in Na-
tional League of Cities v. Usery, 96 S. Ct. 2465 (1976), it
should be noted that even the expansive view of
congressional power over state activities expressed in
Wirtz quite clearly did not embrace the notion that the
exercise of legislative and executive powers by the
8° Board of Trustees v. United States, 289 U.S. 48 (1933) (a
state university can be required to pay the federal duty on
imported scientific equipment); United States v. California,
297 U.S. 175 (1936) and Parden v. Terminal Railway
Company, 377 U.S. 184 (1964) (upholding, respectively, the
application of the Federal Safety Appliance Act and the
Federal Employers Liability Act to state-owned railroads);
United States v. Ohio, 385 U.S. 9 (1966) (reversing per
curiam, citing Wickard v. Filburn, 317 U.S. 111 (1942), a
decision of the Court of Appeals for the Sixth Circuit holding
that farms operated by Ohio’s mental and penal institutions
were not subject to the acreage limitations imposed on
private farms by the Agricultural Adjustment Act); Maryland
v. Wirtz, 392 U.S. 183 (1968) (upholding the 1961 amendments
to the Fair Labor Standards Act extending the minimum
wage and maximum hour provisions of that Act to employees
of state operated institutions an” schools); Fry v. United
States, 421 U.S. 542 (1975) (holding that state employees were
subject to wage and salary controls imposed by the Economic
Stabilization Act of 1970).
59
states, or their failure to exercise those powers, is
commerce or an activity affecting commerce subject to
regulation under the Commerce Clause. Justice Har-
lan’s opinion for the majority carefully marked out the
limits imposed by the words of the Commerce Clause
itself. He expressly rejected the dissenting opinion’s
suggestion that Congress could find that all state
activities, such as the state budgeting process, affect
commerce and were subject to federal control under the
commerce power. 392 U.S. at 196 n. 27. He further
stated that:
. while the commerce power has limits, valid
regulations of commerce do not cease to be
regulations of commerce because a State is in-
volved. If a State is engaged in economic activities
that are validly regulated by the Federal Govern-
ment when engaged in by private persons, the
State too may be forced to conform its activities to
federal regulation. . . . [This court] will not carve
up the commerce power to protect enterprises
indistinguishable in their effect on commerce from
private businesses simply because the enterprises
happen to be run by the States for the benefit of
their citizens. Id. at 196-99.
Wirtz thus recognized that commerce and activities
affecting commerce to which Congress can address its
power are limited to those activities which can be
engaged in by both state-owned enterprises and
privately owned enterprises or private individuals. If
private enterprises cannot engage in a particular kind
of activity, or conversely, if a particular activity is
uniquely governmental, it is not commerce in the
constitutional sense.
The decisions of this Court dealing with the implied
immunity of the states from taxation by the federal
government support the proposition that activities
which are uniquely governmental in nature are not
subject to regulation under the Commerce Clause.
Although the exact scope of the state’s immunity from
60
federal taxation has at times provoked disagreement
among members of this Court, even those members who
have formulated the immunity in the most narrow
terms have agreed that state activities which are
exclusively governmental in nature cannot be taxed by
the federal government. For example, in New York v.
United States, 326 U.S. 572 (1946), the Court held that
New York’s sale of mineral water was not immune from
federal taxation. Justice Frankfurter’s opinion, joined
in by Justice Rutledge, described this most restrictive
interpretation of the states’ immunity as follows:
There are, of course, State activities and State
owned property that partake of uniqueness from
the point of view of intergovernmental relations.
These inherently constitute a class by themselves.
Only a State can own a Statehouse; only a State
can get income by taxing. These could not be
included for purposes of federal taxation in any
abstract category of taxpayers without taxing the
State as a State. But so long as Congress generally
taps a source of revenue by whomsoever earned
and not uniquely capable of being earned only by a
State, the Constitution of the United States does
not forfeit it merely because its incidence falls also
on a State. Jd. at 582 (emphasis added).
The activities that are the subject of the Administra-
tor’s regulations in this case are uniquely governmental
in nature. Only governments own and operate public
highways” and they do so only by exercising govern-
mental powers. Only governments enact laws, approp-
riate public funds, adopt regulations, and enforce laws
to regulate the activities of private citizens. There is
simply no counterpart to those activities in the private
” See generally, South Carolina v. Barnwell, 303 U.S. 177
(1938); Morris v. Duby, 274 U.S. 135 (1927); California v.
Central Pacific Railroad Company, 127 U.S. 1, 40 (1888) (“No
private person can establish a public highway”). Barnes v.
District of Columbia, 91 U.S. 540 (1876); Pennsylvania v.
Environmental Protection Agency, 500 F.2d 246, 262 (3d Cir.
1974).
61
sector. “Certainly the paradigm of sovereign action —
action qua state — is the enactment and enforcement of
state laws.” National League of Cities v. Usery, supra
at 2485 (Brennan, J., dissenting). Thus, those activities
are not commerce or activities affecting commerce
subject to regulation by the federal government under
the Commerce Clause.
A constitutional definition of commerce or activity
affecting commerce must be in consonance, not with
some abstract metaphysics of causation and effect, but
with the fundamental purposes of the Constitution and
the structure of our federal system. The Administrator’s
central thesis, that state governmental policy decisions
with respect to public highways and the failure of the
States to exercise their governmental powers in the
prescribed manner constitute burdens on interstate
commerce, runs counter to both the history and the
structure of the Constitution. The Constitution contem-
plates that the federal government will have the power
to regulate interstate commerce, not by distorting the
meaning of that term to include the governmental
powers of the states, but by acting directly on
individuals, by preempting state action where it
conflicts with the federal purposes and by conditioning
state regulation on compliance with federal require-
ments.
B. THE ADMINISTRATOR’S REGULATIONS INTERFERE
WrirH GOVERNMENTAL FUNCTIONS THAT ARE
EssENTIAL To THE SEPARATE AND INDEPENDENT
EXISTENCE Or THE STATES, AND THus His
REGULATIONS VIOLATE STATE SOVEREIGNTY
PROTECTED By THE CONSTITUTION OF THE UNITED
STATES.
In National League of Cities v. Usery, supra, this
Court held that the states’ power to determine the
wages and hours of their employees was a “function
essential to separate and independent existence,” 96 S.
Ct. at 2471, and it declared invalid the minimum wages
62
and maximum hours provision of the Fair Labor
Standards Act as applied to the states because those
provisions “directly displaced the states’ freedom to
structure integral operations in areas of traditional
governmental functions.” Jd. at 2474. The Administra-
tor’s regulations at issue in this case represent a much
more serious interference with integral governmental
functions than did the federal legislation before the
Court in National League of Cities. By commanding the
states to exercise their legislative and executive powers
and to exercise them in a particular manner, the
Administrator’s regulations displace not only impor-
tant state policy decisions but also the essential
processes of state government.
The initial decision to establish a particular program,
such as an emission inspection and maintenance
program or a program to provide additional public
transportation facilities, is the essence of independent
government. No attribute of sovereignty is more
fundamental to the states’ integrity and to their “ability
to function effectively within a federal system.” Fry v.
United States, 421 U.S. 542, 547 (1975).°:
Even under the provisions of the Fair Labor Stand-
ards Act Amendments declared invalid in National
League of Cities, the states retained at least an element
of choice. That Act required the states to pay their
employees certain wages, and faced with that require-
ment the states made policy decisions concerning the
delivery of governmental services that they otherwise
might not have made. But the states still had the power
to decide to hire or no. to hire additional employees or
to let their employees work overtime. In contrast, under
the Administrator’s regulations, the states are deprived
of all choice. Instead, they must establish the program
‘' See also, Note, Municipal Bankruptcy, the Tenth
Amendment and the New Federalism, 89 Harv. L. Rev. 1871,
1871-91 (1976).
63
and enforce it or be severely penalized. They cannot
adopt the “‘simple expedient’ of not yielding.” Okla-
homa v. United States Civil Service Commission, 330
U.S. 107, 143 (1947).
The Administrator devotes his entire argument in
support of his regulations to attempting to minimize
their impact upon the states. He argues first that his
transportation control strategies are narrowly drawn to
affect only one aspect of the states’ activities, their
ownership and operation of the public highways and
their transportation policies. Like most of the Adminis-
trator’s arguments in this case, it is entirely an
argument of convenience, conceived at the last possible
moment and directly contrary to earlier positions. For
example, in his general preamble to transportation
control plans promulgated on July 24, 1973,%? the
Administrator characterized the task imposed on the
states in very different terms. He commented:
In requiring the State and EPA to impose transpor-
tation controls where they are needed to meet air
quality standards, the Congress imposed a regula-
tory task whose difficulty and complexity are
virtually unparalleled. (A. at 423).
Furthermore, this Court’s reasoning in National
League of Cities in no way suggests that only those
exercises of Congress’ power which affect ail state
governmental activities will constitute an unconstitu-
tional intrusion into state sovereignty. If the Court had
viewed a pervasive federal intrusion into and across the
entire range of state functions as a prerequisite to a
violation of state sovereignty, then Maryland v. Wirtz,
supra, which involved application of the Fair Labor
Standards Act to school and hospital employees, could
have been limited to its facts. Instead National League
of Cities overruled Maryland v. Wirtz, and the Court
was careful to note that, with respect to specific state
92 38 Fed. Reg. 20769 (A. 406).
64
services, “each provides an integral portion of those
governmental services which the States and their
political subdivisions have traditionally afforded their
citizens.” 96 S. Ct. at 2476. Finally, and most impor-
tantly, the underlying principle of National League of
Cities is that with respect to traditional state govern-
mental functions, the states retain the power to make
basic policy decisions. If federal intrusion into all
aspects of state government were required before
Congress’ power could be checked, then state sover-
eignty could simply be chipped away piece by piece.
The Administrator also emphasizes repeatedly that
under the Clean Air Act the states have the first
opportunity to specify the methods by which they will
attain the ambient air quality standards. That argu-
ment, however, demonstrates the Administrator’s
failure to comprehend the principles underlying our
federal system of government with which this Court
was concerned in National League of Cities. Under the
Administrator’s regulations, the states only have
options within the parameters of a federally dictated
policy aimed at a particular problem. However, state
governments, like the federal government, are faced
with a myriad of difficult problems with respect to
essential governmental functions, and they must make
important policy decisions concerning how to allocate
limited financial and human resources to deal with all
of those problems. National League of Cities holds that
Congress cannot exercise its powers under the Com-
merce Clause in attempting to solve one problem in
such a way as to directly displace the states’ ability to
set their own priorities and make their own policy
judgments with respect to the delivery of government
services.
Contrary to the Administrator’s representations to
this Court, his transportation control strategies will
impose substantial financial burdens on the States. For
65
example, a regular size forty-foot air conditioned bus
now costs WMATA $72,000. The total cost of purchas-
ing the 475 additional buses required by the Adminis-
trator’s regulations would be over $34 million. In
addition, the States and their political subdivisions will
be required to appropriate funds to cover the inevitable
operating deficits.
The Administrator’s inspection and maintenance
regulations will also require the States to engage in
additional law enforcement functions. For example,
those regulations require the States to conduct spot
checks to ensure that the owners have not modified
their motor vehicles so as not to comply with emission
standards. Thus the States will be forced either to hire
new enforcement personnel or to shift personnel
assigned to enforce other state programs. Yet it is
exactly that sort of relinquishment of policies with
respect to governmental functions sucno as law enforce-
ment that this Court held in National League of Cities
to be beyond the power of Congress under the
Commerce Clause.
The Administrator argues that his regulations are
less intrusive than the alternative of having federal
authorities themselves operate buses and inspect
private vehicles. The Administrator again misunder-
stands the difference between physical intrusion and
intrusion into the proper role of the states in our federal
system. The presence of federal inspectors and bus
operators would not be an institutional intrusion into
the state role any more than federal post offices or FBI
agents, all of which are present in the States. The
States agree with the Attorney General of the United
States who testified in response to a similar argument
by Senator Moss at the hearings on the Federal No-
Fault Insurance Act.
But, Senator, assuming, as I do, the desire to do
good in this area, of course, I think it is an
66
insidious point to say that there is more federalism
by compelling a State instrumentality to work for
the Federal Government.
That isa very enticing argument, it makes it easier
for the Federal Government to encroach, it makes
it easier to wipe out the sovereignty of the separate
states.*’
C. THe History Or THE CONSTITUTIONAL CON-
VENTION OF 1787 DEMONSTRATES THAT THE
FRAMERS OF THE CONSTITUTION Dip Not INTEND
THAT THE FEDERAL GOVERNMENT SHOULD HAVE
THE Power To RequirRE THE STATES To ENACT
LEGISLATION Or To ADMINISTER AND ENFORCE
FEDERALLY MANDATED PROGRAMS.
The regulations at issue in this case represent an
attempt by the Administrator to appropriate by
coercion the governmental powers of the states to solve
a national problem. In the Administrator’s own words,
the regulations were promulgated “to provide the
necessary assurance that state and local action would
be forthcoming.” 38 Fed. Reg. 30633 (November 6, 1973).
The States submit however that the framers of the
Constitution emphatically rejected a system of govern-
ment in which the central government had the power to
act through the states to achieve its ends. Thus, the
means chosen by the Administrator to solve the
national problem of air pollution violates the entire
spirit and purpose of the framers’ efforts.
The crucial decision of the Constitutional Convention
of 1787 was the decision to establish a central
government having the power to act directly upon
individuals and not merely upon the states. The
purpose of that determination was to correct the major
weakness of the Union under the Articles of Confedera-
tion, the lack of effective power in Congress. Under the
93 Hearings on S. 354 before the Senate Committee on
Commerce, 94th Cong., 1st Sess., Ser. 94-20, 496 at 503 cited
in Salmon, supra n. 83 at 341.
67
Articles of Confederation, the Union was a league of
states. It received its authority from. the States and its
laws were directed to the states. To the extent that
Congress desired to regulate the affairs of individual
citizens, it could only do so through the agency of the
states. Although the states were bound in theory to
comply with the laws of Congress, in fact they refused
to do so, and Congress lacked the power to compel
obedience.”
Alexander Hamilton described this fundamental
structural flaw in the Articles of Confederation as
follows:
The great and radical vice in the construction of
the existing Confederation is in the principle of
legislation for states or governments, in their
corporate or collective capacities, and as contra-
distinguished from the individuals of which they
consist. Though this principle does not run through
all the powers delegated to the Union, yet it
pervades and governs those on which the efficacy
of the rest depends. Except as to the rule of
apportionment, the United States have an indefi-
nite discretion to make requisitions for men and
money; but they have no authority to raise either
by regulations extending to the individual citizens
of America. The consequences of this is, that
though in theory their resolutions concerning those
objects are laws, constitutionally binding on the
members of the Union, yet in practice they are
mere recommendations, which the states observe or
disregard at their option.*
James Madison and other delegates who convened in
Philadelphia in May 1787 believed that the central
government must have more power. Writing to Thomas
“ See generally, Charles Warren, The Making of The
Constitution 3-54 (1937 ed.).
95 The Federalist No. 15 at 93 (Cooke ed. 1961). See also,
a Letters and Other Writings 34 (Worthington ed.
68
Jefferson shortly before the Convention began, Madi-
son indicated that he sought to achieve an increase in
the power of Congress that would “render it efficient
without the intervention of the Legislatures.’’’*
Shortly before the Convention began, the Virginia
delegation drafted a series of fifteen resolutions (the
Virginia Plan) to provide a basic framework for
consideration, and Governor Randolph opened the
- main business of the convention by introducing the
Virginia Plan. The Sixth Resolution provided:
6. Resolved, that each branch ought to possess
the right of originating acts; that the National
Legislature ought to be impowered to enjoy the
Legislative Rights vested in Congress by the
Confederation, and moreover to legislate in all
cases to which the separate States are incompetent
or in which the harmony of the United States may
be interrupted by the exercise of individual legisla-
tion; to negative all laws passed by the several
States contravening, in the opinion of the National
Legislature, the Articles of Union, or any treaty
subsisting under the authori: : of the Union; and to
call forth the force of the Union against any
member of the Union failing to fulfill its duty
under the Articles thereof (emphasis added).*
The fate of two of the clauses in the Sixth Resolution
have a direct bearing on the constitutional issues
presented to the Court by the Administrator’s regula-
tions. The last clause, authorizing the use of force by
the national government against a delinquent state,
was addressed only by Madison. His comments are
significant:
Mr. Madison observed that the more he reflected on
the use of force, the more he doubted the practica-
bility, the justice and the efficacy of it, when
% Madison, Letters and Other Writings 284 (Worthington
ed. 1884).
*? | Farrand, The Records of The Federal Convention 20-23
(Rev. ed. 1937).
69
applied to people collectively, and not individually.
A union of the states containing such an ingredient
seemed to provide for its own destruction. The use
of force against a state would look more like a
declaration of war then an infliction of punish-
ment; and would probably be considered by the
party attacked as a dissolution of all previous
compacts by which it might be bound. He hoped
that such a system would be framed as might
render this resource unnecessary and moved that
the clause be postponed. This motion was agreed to
nem. con.”
The third clause of the Sixth Resolution, which
provided for a legislative negative endowing the
national government with the power to veto state laws,
also suffered defeat but only after protracted debate.
The crux of the controversy was whether the power of
the federal courts to declare state laws unconstitutional,
a power which was for the most part unquestioned by
the Convention,”’ served as a sufficient check on the
power of the states. In the end, the issue was settled by
the Convention’s acceptance of the Supremacy Clause,
coupled with the power of the judiciary to review state
laws on constitutional grounds, as an effective substi-
tute for the legislative negative.'’°
Not long after the Convention adjourned, Madison
wrote to Jefferson describing what he thought was the
essential “ground work” on which the proposed
Constitution rested.
“It was generally agreed that the objects of the
Union could not be secured by any system found on
the principle of a Confederation of Sovereign
%* Madison, Journal of The Constitutional Convention 62
(Scott ed. 1893).
% See generally, Beard, The Supreme Court and the
Constitution (1912); Hart and Wechsler, The Federal Courts
and the Federal System 9 (Rev. ed. 1973).
100 See generally, Farrand, supra n. 97 at 27-28; Warren,
supra n. 94 at 16-17.
70
States. A voluntary observance of the federal law
by all the members could never be hoped for. A
compulsive one could evidently never be reduced to
practice, and if it could, involved equal calamities
to both the innocent and the guilty, the necessity of
military force, both obnoxious and dangerous, and,
in general, a scene resembling much more a civil
war than the administration of a regular govern-
ment.
Hence, was embraced the alternative of a
government which, instead of operating on the
states should operate without their intervention on
the individuals composing them; and hence the
change in the principle and proportion of represen-
tation.'°!
Hamilton argued the case for the adoption of the
Constitution in similar terms in The Federalist. After
presenting the need for a federal government having
the power to act directly on individual citizens.
Hamilton wrote:
To this reasoning it may perhaps be objected, that
if any State should be disaffected to the authority
of the Union, it could at any time obstruct the
execution of its laws, and bring the matter to the
same issue of force, with the necessity of which the
opposite scheme is reproached.
The plausibility of this objection will vanish the
moment we advert to the essential difference
between a mere noncompliance and a direct and
active resistance. If the interposition of the State
legislature be necessary to give effect to a measure
of the Union, they have only not to act or to act
evasively, and the measure is defeated. This
neglect of duty may be disguised under affected but
unsubstantial provisions, so as not to appear, and
of course not to excite any alarm in the people for
the safety of the Constitution. The State leaders
may even make a merit of their surreptitious
invasions of it, on the ground of some temporary
convenience, exemption, or advantage.
10! Madison, supra n. 95 at 344.
71
But if the execution of the laws of the national
government, should not require the intervention of
the state legislature; if they were to pass into
immediate operation upon the citizens themselves,
the particular governments could not interrupt
their progress without an open and violent exertion
of an unconstitutional power. No omissions nor
evasions would answer the end. They would be
obliged to act, .1d in such a manner, as would
leave no doubt that they had encroached on the
national rights... .'°?
The fran.ers’ unequivocal rejection of a constitutional
structure in which the central government possessed
the power to force the states to enact and enforce laws
to carry out its purposes emerges with undisputable
clarity from the history of the Constitutional Conven-
tion and the ratification process. Faced with a com-
pelling need to strengthen the central government, the
framers briefly contemplated and emphatically rejected
a solution granting the central government power to
exercise coercive power directly against state govern-
ments. They rejected that alternative because they
foresaw its potential for disrupting the relationship
between the states and the federal government. For
similar reasons, they declined to give Congress the
power to nullify state laws.
Instead, the framers adopted a system in which the
states retain broad governmental powers to act with
respect to all subjects except those expressly prohibited
in Article I, Section 10 of the Constitution. They clearly
intended that the states retain the right to determine
how and when to exercise their governmental powers
free from any direct coercion by the federal government.
To protect the primacy of federal law in the case of a
conflict arising from the exercise of concurrent powers
by the states and the federal government, the framers
determined to rely on the Supremacy Clause and the
102 The Federalist No. 16 at 102 (Cooke ed. 1961).
72
judicial power to declare state laws invalid. They saw
that there was a great difference between a constitu-
tional structure in which the central government has
the power to directly control, either by veto or
affirmative command, the power of the states to
legislate and exercise their governmental powers, and a
constitutional structure which provides for the principle
of federal supremacy and a mechanism for resolving
actual conflicts of power. The Administrator’s assertion
of the power to require the states to enact and enforce
laws and regulations ignores that fundamental struc-
tural difference.
The Administrator’s regulations requiring the States
to adopt, implement and enforce an inspection and
maintenance program present a paradigm of that
“great and radical vice” that the framers sought to
avoid. Those regulations interpose the legislative and
executive branches of the state governments between
the federal government and solutions to the problem of
air pollution. If the States are delinquent in establish-
ing or enforcing the required program, the federal
government must resort to drastic remedies such as
placing certain state functions in receivership and
imposing substantial civil penalties on tate officials.'!°°
It is difficult to conceive of a regulatory scheme more
disruptive to the federal system.
Similarly, the Administrator’s regulations which
require financial commitments for additional buses
from WMATA buses from Maryland, Virginia and the
District of Columbia resurrect the flaw inherent in the
Articles of the Confederation. In order to ensure that
the required contributions toward the purchase of buses
are made, both Maryland and Virginia must enact
legislation completely restructuring their respective
relationships with WMATA and with their counties and
'03 See p. 12 supra.
73
political subdivisions. They must also pass legislation
appropriating the necessary funds.
The framers learned after hard experience that a
system, in which the federal government was depend-
ent upon the states to carry out its purposes, was
unworkable and disruptive. They created a system that
makes coerced state participation both unnecessary and
unconstitutional.
D. THE Decisions OF TuH1s CourT HAVE
CONSISTENTLY RECOGNIZED THAT THE FEDERAL
GOVERNMENT Does Not Have THE Power To
ComPpeL THE STATES To Enact Laws, ApoprT
REGULATIONS, OR ENFORCE FEDERALLY
MANDATED REGULATORY PROGRAMS.
The early decisions of this Court reaffirmed the basic
structural principle of the Constitution, that the federal
government would have the power to act on individuals
and not on the states. In Hylton v. United States, 3 U.S.
(3 Dall.) 171, 178 (1796), Justice Patterson noted that
“the fiscal power is exerted certainly, equally, and
effectually on individuals; it cannot be exerted on
States.” Justice Iredell, who had been a member of the
North Carolina ratifying convention, began from the
same basic premise:
The present Constitution was particularly intended
to affect individuals and not States, except in
particular cases specified. Jd. at 181.
Two decisions of this Court which bear directly on
EPA’s assertion of power under the Commerce Clause
to require the states to legislate are McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316 (1819), and Gibbons v.
Ogden, supra. In those two cases, Chief Justice
Marshall made the first systematic exposition of the
scope of federal power under the Commerce Clause and
the Necessary and Proper Clause. McCulloch uv.
Maryland held unconstitutional @ tax imposed by
74
Maryland on the Bank of the United States. In defining
the relationship between the power of the federal
government and the power of the states, Chief Justice
Marshall emphasized that the framers of the Constitu-
tion intended that the federal government would have
the independent power to achieve its purposes and
would not have to rely on the powers of the states.
No trace is to be found in the Constitution of an
intention to create a dependence of the government
of the Union on those of the states, for the
execution of the great powers assigned to it. Its
means are adequate to its ends; and on those
means alone was it expected to rely for the
accomplishment of its ends. To impose upon it the
necessity of resorting to means which it cannot
control, which another government may furnish or
withhold, would render its course precarious, the
result of its measures uncertain, and create a
dependence on other governments, which might
disappoint its most important designs, and is
incompatible with the language of the Constitu-
tion. Id. at 424 (emphasis added).
In Gibbons v. Ogden, supra, the Court held that the
power of Congress under the Commerce Clause to
license vessels plying the coastal trade limited the
power of New York to regulate those same vessels
sailing in New York waters. Chief Justice Marshall was
careful to observe, however, that the plenary power of
Congress to regulate commerce does not include the
power to compel the states to exercise their governmen-
tal powers to regulate activities that Congress itself has
the power to regulate. The Chief Justice stated:
If Congress license vessels to sail from one port to
another, in the same state, the act is supposed to
be, necessarily, incidental to the power expressly
granted to Congress, and implies no claim of a
direct power to regulate the purely internal com-
merce of a state, or to act directly on its system of
police. Id. at 204 (emphasis added).
75
Chief Justice Marshall’s analysis of the power of the
federal government under the Constitution squarely
repudiates the Administrator’s assertion of the power to
require the states to legislate, to adopt regulations and
to enforce federal regulations. The federal power
extends to subjects such as interstate commerce. It does
not extend to the concurrent powers of the states over
those same subjects.
Decisions of this Court involving federal powers other
than those exercised under the Commerce Clause have
stressed the fundamental principle that the federal
government can not require state o. ers to execute
federal laws. For example, in Ex Parte Kentucky v.
Dennison, 65 U.S. (24 How.) 66 (1860), the Court faced
the issue of whether the Governor of Ohio could be
compelled to return a fugitive from justice to Kentucky,
pursuant to an Act of Congress and Article IV, Section
2 of the Constitution. Chief Justice Taney held that the
duty to surrender a fugitive fro
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