# Respondents Brief — Environmental Protection Agency v. Brown > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2162%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1977 - **Citation:** 431 U.S. 99 ## Text Teed pec 8 Te 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2162%3A07. Public record. Not legal advice.