Petitioners Reply Brief — Environmental Protection Agency v. Brown

‘

%

o = ins

al ‘

7 .

‘ :

> - %,

- , ' ‘

. w

d _ “ we ee

- : » ae

, > >.

> — = * 4

> «

; a

- . «

. eo

_— a 4 _—w a ee

ioe eerie

“Ocrossr Trem, 1976

-Bxyinox aera Prorectton Agaxcy, Pervniosen

¥.

Epmunp G. Brown, JR, GOVERNOR OF THE Stare

or: CALIFORNIA, BT Al,

EXVIRON MENTAL PROTECTION AGENCY, ‘Perrrioner

¥

| ‘Srarg OF MARYLAND, BT AL.

nt,

=a

CoMMONWEALTH OF VIRGINIA EX REI.

State Arr Poiiution Oontrot Board, Perrrioner

v.

Russe.t E. Trax, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY

Russet E. TrAtn, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION ‘AGENCY, PETITIONER

. v. .

_Distater OF CoLumata, ET AL.

r _

: ON WRITS OF CERTIORARI To THE UNITED STATES COURTS

OF APPRALS FOR THE NINTH, FOURTH AND DISTRICT OF |

COLUMBIA CIRCUITS "

- , : os

REPLY BRIEF FOR THE FEDERAL PARTIES 3 ws

; ROBERT B. BORK, -

G. WILLIAM FRICK, PETERR. TAFT; «= ,

r General Counsel, Assistant Attorney General, b,

| JOHN E, BONINE, A. RAYMOND RANDOLPH, Jr.

K. GLEASON ae HARRIET S. A

Attorney, = a . went S ! '

: ‘Washington, D.C.20400. | Washington, D.O. 20580. nae

sR nnaenarazee Sa —S— “

} <7 ~~ ~ ; ° j

| | | aie

’ 3 ; OES SEM OD ae

} .. > SP ££ Oe ee ¥ fy NO Paget Maral

ai " opt SYK, Se ee cee BD II LOA Sh to te Die Oe oo Ft ae ae

INDEX

Page

I. Respondents’ constitutional arguments___- 2

II. Respondents’ statutory arguments__------ 15

III. Respondents’ arguments regarding the in-

spection and maintenance programs-_--_- 19

IV. Respondents’ arguments regarding the bus

purchase regulation.......-----.------ 25

ee ne ee 28

CITATIONS

Cases:

Case v. Bowles, 327 U.S. 92.--.------_--- 8

City of Tacoma v. Taxpayers of Tacoma,

ee 11

Clarke, Ex parte, 100 U.S. 399__---------- 7-8

Cohens v. Virginia, 6 Wheat. 246__--___-- 5, 6

Commonwealth of Pennsylvania v. Envi-

ronmental Protection Agency, 500 F. 2d

OE. nurantinenaecdiirtinmniiaieedan 17

Environmental Protection Agency v. Cali-

fornia ex rel. State Water Resources

Control Board, No. 74-1435, decided

Se OS ee 13

Fry v. United States, 421 U.S. 542_______ 10, 11

Illinois v. City of Milwaukee, 406 U.S. 91-_ 11, 12

Kansas City, Mo. v. Kansas City, Kan., 393

National League of Cities v. Usery, No. T4-

878, decided June 24, 1976_------------ 2, 7-8

(1)

II

Cases—Continued

Sanitary District of Chicago v. _ Umited

Oe 2

Selective Draft Law Cases, 245 U.S. 366_-

Siebold, Ex parte, 100 U.S. 371-----------

State Water Control Board v. Train, 8

Teste V. Kelt, 380 U.S. 386.02 cccsewnee

Train v. Natural Resources Defense Coun-

0 Ree

United States v. Douglas County, 5 E.R.C.

DTT cennscncnsnbctinndemmeaiinnniiingn

Wisconsin Vv. Illinois, 278 U.S. 367_--------

Wisconsin vy. Illinois, 281 U.S. 179_-------

Constitution, statutes, and regulations:

United States Constitution:

Article I, section 3, para. 1 (changed

by the seventeenth amendment) ----

Article I, section 4, para. 1----------

Astiels 5, CURR Boi ccccdcecensccsae

Article II, section 1, Clause 2.-----~-

Article IT, section 2, Clause 1_----_--

Article II, section 2, Clause 2_-------

Article ITI, section 2, Clause 2__-----

CR FG een

Astiels TY, GRUR Buncncccccicndces

Astishe TV, CO0IOR Duonnccccscaccnsase

RES F Rvcicinitvicinlensitycitninnsnidiepiniinciais

a ae

Thirteenth amendment____-----------

Fourteenth amendment___-----------

Fifteenth amendment___-----------~_-

Seventeenth amendment__-----------

Page

10, 11

9

6,7

eS a

Ii.

Constitution, statutes, and regulations—Continued

Twenty-fourth amendment__---------

Twenty-sixth amendment__...------

Clean Air Act, 81 Stat. 485, as added and

amended, 42 U.S.C. 1857 et seq.:

Section 110(a) (2), 42 U.S.C. 1857¢-5

(a)(2) --.--.------------------ ==

Section 110(a) (2) (B), 42 U.S.C. 1857-

5(a) (2) (B) ............-.....--.-

Section 110(a) (2) (G), 42 U.S.C. 1857-

5(a)(2)(B) -.....------------- oe

Section 110(¢), 42 U.S.C. 1857e-5 (¢) __-

Section 113(a)(1), 42 U.S.C. 1857¢e-

(BCE) cnc ceccnccccnwccsscucsuse

Section 113(a)(4), 42 U.S.C. 1857e—

DER EED nanncanccnsbenennnesiiliahs

Section 202, 42 U.S.C. 1857f-1_______

Section 206(a)(1), 42 U.S.C. 1857f-

RED -<ninipstencicieaiempabibimiictnictnuil ides

Section 206(b), 42 U.S.C. 1857f-5(b)_

Section 207(c), 42 U.S.C. 1857f-6(¢)_

DO FeO i tdanintbciidbebtinetnicned

Energy Supply and Environmental Coor-

dination Act of 1974, Pub. L. 93-319, 88

Federal Water Pollution Control Act

Amendments of 1972, 86 Stat. 816

Selective Service Law, 40 Stat. 76

28 U.S.C. 1331

Oregon Revised Statutes 468.405 (1975

BE, ) a cbidime dn eT Sees...

Rhode Island Publie Laws of 1976, Chap-

ter 139 (signed May 26, 1976) (amend-

ing Title 31, Chapter 38 of the General

IV

Constitution, statutes, and regulations—Continued Page

Laws of Rhode Island)---------------- 24

40 C.F.R. Part 51, Appendix N-----~----- 22

40 CO. Be. GRR B) ncdcctinttindaboctitedtin 14

40 O.F7 Ie. GREG OP ci cctcncivtiinccsiione 28

Congressional material :

116 Cong. Ree. (1970) :

Ee CNT Te ee ears oe 17

D. Fieeseccuccednccnsiondninseiiinn 17

Cah ccanicdcdiccithbblacinbianton 17

DD, Ginn cnctssiemanittitipitiinsiinieain 17

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

(TTD ccieccinsinccidacinnisiininetiniiitidin Hae

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

(CED ccintiniscciutewsicinniitshimbiacntibiinbietiions 17, 20

Miscellaneous:

Corwin, National-State Cooperation—Its

Present Possibilities, 46 Yale L.J. 599

(HRS) antonsintiticibieidiiats 5

Crowder, The Spirit of Selective Service

CURRIED. aecectichccscntincedessbeinepintiidenibipabdinabdiasticnes 9

Farrand, The Records of the Federal Con-

vention of 1787 (Vols. 1, 2 and 3)

COINOD sitchdcecisistladialpiveidinidininitia tl cadiasd east) 7

Federalist, The, No. 15 (Cooke ed. 1961)__ 4

Federalist, The, No. 27 (Cooke ed. 1961) _- 5

SD FOR, BO, Bik ntscdcactitiwsaaid 26

41 Fed. Reg. 31472 20

Friendly, ‘‘In Praise of Erie—And of the

New Federal Common Law”, in Bench-

| | aCe eR TRL ee TTT 13

Holeombe, The States As Agents of the

Nation, 1 Southwestern Political Science

Qemmtenty SOT (IGE ) sel cissssitniiiedtideiins 9

Miscellaneous—Continued

Shutler, Overview of Inspection/Mainte-

nance (I/M), Proceedings of the Fourth

North American Motor Vehicle Emission page

Control Conference (Nov. 5-7, 1975)--~ 20, 22

Walsh, The Need for and Benefits of In-

spection and Maintenance of In Use

Motor Vehicles (Nov. 9, 1976)------ 21, 22, 24

The Writings of Thomas Jefferson (Ford

GE FE cic ndbdditiwwenntinticdnenedia 7

as

Gn the Supreme Court of the United States

OctoBerR TERM, 1976

No. 75-909

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

v.

Epmunp G. Brown, Jr., GOVERNOR OF THE STATE

OF CALIFORNIA, ET AL.

No. 75-960

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

v.

STaTE OF MARYLAND, ET AL.

No. 75-1050

COMMONWEALTH OF VIRGINIA EX REL.

State Arr PoLLution Controt BoarD, PETITIONER

v.

Russe_t E. Trarn, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY

No. 75-1055

Russet, E. Trarxn, ADMINISTRATOR OF THE

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

v.

District oF CoLUMBIA, ET AL.

(1)

2

ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS

OF APPEALS FOR THE NINTH, FOURTH, AND DISTRICT OF

COLUMBIA CIRCUITS

REPLY BRIEF FOR THE FEDERAL PARTIES

We first discuss respondents’ constitutional argu-

ments and next reply to their statutory contentions.

In Part III, we address respondents’ assertion that

the “programs at issue here will make at best a small

contribution to achieving the ambient air quality

standards required by the Clean Air Act” (Resp.

Brief, p. 14). In Part IV, we explain that the EPA

Administrator has decided to withdraw the bus pur-

chase regulations challenged by the Commonwealth

of Virginia in Pet. No. 75-1050, and similar regula-

tions for Maryland and the District of Columbia.

1,

RESPONDENTS’ CONSTITUTIONAL ARGUMENTS

In our opening brief, we discussed whether under

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

cided June 24, 1976, the regulations challenged here

threaten the separate and independent existence of

the States. We concluded that they did not because

of the absence of any broad interference with State

policies; the lack of any substantial impact on State

budgets; the need to achieve the essential national

goal of reducing air pollution; the fact that this can

be done only through national action involving the

States as operators of their highways; the carefully

limited intrusion into an area (pollution control)

that had been left to the States; and the great def-

erence shown to the State’s choice of the methods

3

for achieving air quality, with the EPA Adminis-

trator imposing a plan only if the State defaults.

Respondents invite the Court to follow a different

path of analysis. They advance the theory that Con-

gress has no authority under the Commerce Clause to

require States to comply with federal Jaw because, in

regulating commerce among the States, Congress is

empowered only to act directly on individuals.’ On

this basis, respondents contend that the air pollution

stemming from a State’s operation of its highways

cannot be considered a burden on interstate commerce

(Brief, p. 61); that the federal regulations at issue

unconstitutionally invade state sovereignty by forcing

the States to control such air pollution (Brief, pp.

61-66) ; that federal compulsion on the States violates

the system of government intended by the Framers of

the Constitution (Brief, pp. 66-73); and that the

decisions of this Court support the proposition “that

the federal government would have the power to act

on individuals and not on the states” (Brief, p. 73).

We believe the issues presented here cannot be

analyzed on respondents’ terms. For the reasons that

follow, we disagree with their basic premise and urge

the Court to reject it.

“Faced with a compelling need to strengthen the

central government,” respondents tell the Court

(Brief, p. 71), “the framers briefly contemplated and

emphatically rejected a solution granting the central

government power to exercise coercive power directly

against State governments.” If this view were ac-

1 Resp. Brief, pp. 55, 59-61, 64-66, 68-73, 75-78.

226-548———_-2

4

curate, it would indeed be remarkable that the Fram-

ers’ emphatie rejection nowhere manifests itself in

the language of the Constitution. One will search that

document in vain for any clause, any word indicating

tlfat the Framers intended to confer such immunity

on the States. To the contrary, a careful reading dis-

closes that the Constitution itself expressly imposes

many duties—both negative and positive—on the

various institutions of State governments,’ duties that

in many cases obligate the States to exercise their

governmental powers and make expenditures of

funds. These are not, one can say with assurance,

“mere recommendations, which the States [may]

observe or disregard at their option.” *

It is true, as respondents emphasize (Brief, pp.

16-17, 66-73), that a major defect of the Articles of

Confederation was that no State could be compelled

to comply with them and that an important innova-

tion in the Constitution was the conferring of power

upon the federal government to bypass the States and

act directly on individual citizens. It is not true, how-

ever, that the States were thereby relieved of any

duty to comply with federal law, as respondents urge

*£.g., Article I, Section 3, Clause 1 (changed by the Seven-

teenth Amendment); Article I, Section 4, Clause 1; Article I,

Section 10; Article II, Section 1, Clause 2; Article II, Section 2,

Clause 1; Article III, Section 2, Clause 2; Article IV, Section 1;

Article IV, Section 2; Article IV, Section 3; Article VI; see also

Amendments Thirteen, Fourteen, Fifteen, Seventeen, Twenty-

Four, and Twenty-Six.

* The quotation is from Hamilton’s description of the defects

in the Articles of Confederation, Zhe Federalist No. 15, p. 93

(Cooke ed. 1961), quoted in respondents’ brief, p. 7.

5

(id. at 70-73). That would have merely repeated the

mistake of those who devised the Articles of Con-

federation. The Framers of the Constitution were not

so unmindful of the recent past; they altered the

existing structure of the Constitution by obligating

the States to abide by federal law and they did this

not only through the Supremacy Clause in Article VI,

but also by requiring each member of the state legis-

latures and the executive and judicial officers of the

States to be bound by oath or affirmation to support

the Constitution (Article VI, Clause 3).* After ex-

plaining these provisions, Hamilton concluded in The

Federalist No. 27: “Thus the Legislatures, Courts

and Magistrates of the respective members will be

incorporated into the operations of the national gov-

ernment, as far as its just and constitutional author-

ity extends; and will be rendered auxiliary to the en-

forcement of its laws.”* At this point Hamilton

dropped a footnote:* “The sophistry which has been

employed to show that this will tend to the destruc-

tion of the State Governments will, in its proper

place, be fully detected.” '

*See generally Corwin, National-State Cooperation—I/ts Pres-

ent Possibilities, 46 Yale LJ. 599 (1937).

* The Federalist No. 27, p. 175 (Cooke ed. 1961) (emphasis in

original).

° /bid. (emphasis in original).

* Quite relevant here is Chief Justice Marshall’s statement in

regard to 7'he Federalist: “These essays having been published,

while the constitution was before the nation for adoption or rejec-

tion, and having been written in answer to objections founded en-

tirely on the extent of its powers, and on its diminution of state

sovereignty, are entitled to the more consideration, where they

frankly avow that the power objected to is given, and defend it.”

Cohens v. Virginia, 6 Wheat. 264, 418-419.

6

Nearly a century ago, the Court in Ex parte Siebold,

100 U.S. 371, 392, held in regard to our federal sys-

tem of government: * “As a general rule, it is no doubt

expedient and wise that the operations of the State

and national governments should, as far as prac-

ticable, be conducted separately, in order to avoid

undue jealousies and jars and conflicts of jurisdiction

and power. But there is no reason for laying this

down as a rule of universal application. It should

never be made to override the plain and manifest

dictates of the Constitution itself. We cannot yield

to such a transcendental view of state sovereignty.

The Constitution and laws of the United States are

the supreme law of the land, and to these every citi-

zen of every State owes obedience, whether in his

individual or official capacity.’’*

This merely echoed Mr. Chief Justice Marshall’s

statement for the Court in Cohens vy. Virginia, 6

Wheat. 264, 414, that

America has chosen to be, in many respects, and

to many purposes, a nation; and for all these

purposes, her government is complete; to all

these objects, it is competent. The people de-

clared, that in the exercise of all powers given

for these objects, it is supreme. It can then, in

* In Ee parte Siebold, supra, the Court upheld Congress’ power,

under Article I, Section 4, Clause 1 of the Constitution to impose

duties on state election officials holding a congressional election

and to prescribe penalties designed to compel compliance.

* The Court added that “if we allow ourselves to regard [the

national government] as a hostile organization, opposed to the

proper sovereignty and dignity of State governments, we shall

continue to be vexed with difficulties as to its jurisdiction and au-

thority.” 100 U.S. at 394.

a ee ee Es + er

7

effecting these objects, legitimately control all

individuals or governments within the Ameri-

ean territory. * * * These states are constituent

parts of the United States; they are members

of one great empire—for some purposes sov-

eign, for some purposes subordinate.

Respondents’ theory that the federal government

must act “directly on individuals” or not at all (Brief,

pp. 61, 73) * cannot be reconciled with Ex parte Sie-

bold, supra." It is a theory that was not relied upon

or suggested by the Court’s opinion in National

*° Respondents think it significant that the Philadelphia Con-

vention did not adopt two clauses of the Sixth Virginia Resolu-

tion, set forth at Resp. Brief 68, which allowed the national leg-

islature (1) to negative State laws violating the Constitution and

(2) to call forth the “force of the Union” against any State fail-

ing to fulfill its duty under the Constitution.

But the power of the negative was thought unnecessary in light

of the Supremacy Clause and was defeated on that basis. 2 Far-

rand, The Records of the Federal Convention of 1787 21-22, 27-28

(1937). -

Consideration of the clause regarding the use of force against

a State was, on Madison’s motion, deferred early in the Conven-

tion and not acted upon thereafter. 1 Farrand, supra, at 54. But

this proves nothing. As Madison later observed (3 Farrand, supra,

at 528), Jefferson had pointed out that the power was in any event

implied and “Compulsion was never * * * more safe than in the

hands of Congress which has always shown that it would wait, as

it ought to do, to the last extremities before it would execute any

of its powers which are disagreeable.” Jefferson to Edward Car-

rington, August 4, 1787, in 4 The Writings of Thomas Jefferson

424 (Ford ed. 1894). Moreover, Madison further noted that the

clause was in part intended “as a substitute for, or as a supple-

ment to the ordinary mode of enforcing the laws by Civil proc-

ess * * *.”3 Farrand, supra, at 528.

In fact, respondents’ arguments in this case are strikingly

similar to those of Mr. Justice Field, dissenting in Fx parte Sie-

bold, supra, 100 U.S. at 399, and the companion case of Ea parte

League of Cities v. Usery, No. 74-878, decided June

24, 1976. And it is a theory that cannot stand in the

face of the numerous decisions of this Court sustain-

ing federal legislation under the Commerce Clause

that required state compliance. Many such d»visions

are cited in our opening brief (pp. 47 n. 49, 52, 53 n.

61) and in respondents’ brief (at p. 58 n. 89).”

Clarke, 100 U.S. 399, 404-422, arguments the Court rejected in

both cases.

The broad language in the Court’s opinion in Kentucky v.

Dennison, 24 How. 66, 107-110, quoted by respondents (Brief, at

75-76), must be read in light of the unique setting of that case,

which was decided on the eve of the Civil War and involved an

attempt by Kentucky to compel the Governor of Ohio to deliver

a fugitive, who was charged in Kentucky with enticing a slave to

leave his master. Regardless of the extent of the continuing vital-

ity of the decision in the field of extradition, it has not been

applied more broadly. Fa parte Siebold did not adopt it, although

the dissenting opinion in the Siebold case relied heavily on lan-

guage from the Dennison opinion. See also Testa v. Katt, 330 U.S.

386, and the other decisions we discuss herein sustaining federal

laws that imposed duties on the States and their officials.

* Mr. Justice Black, writing for the Court in Case v. Bowles,

327 U.S. 92, 101, specifically rejected the argument, based on the

Tenth Amendment, “that there is a doctrine implied in the Fed-

eral Constitution that ‘the two governments, national and state,

are each to exercise its powers so as not to interfere with the free

and full exercise of the powers of the other.’ ”

Indeed, the first Selective Service Law, 40 Stat. 76, 80-81,

authorized the President to “utilize the service of any or all depart-

ments and any or all officers or agents * * * of the several States,

Territories, and the District of Columbia.” The failure of any

person so appointed fully to perform any duty required of him

was punishable as a misdemeanor on conviction in any federal

district court. Registration for the draft took place at local polling

places, under state, not federal control; thus state officials, with

federal supervision, were responsible for the initial implementa-

9

In seeking to explain those Commerce Clause de-

cisions, respondents adopt a different theory. They

say that in those cases “the state activity subject to

direct regulation was identical to economic activity

carried on by private persons or enterprises’’ (td. at

58) ; on the other hand, the subject of the federal law

here is highways and “[o]nly governments own and

operate public highways” (id. at 60; footnote omitted).

Why any of this should make a constitutional differ-

ence respondents do not explain. To be sure, only gov-

ernments own public highways; but only state and

local governments own municipal incinerators, police

ears, public railroads and penal institutions, all of

which respondents concede must comply with various

federal laws, including the Clean Air Act (Resp.

Brief at 34, 38 n. 61, 58-59). Moreover, if a State, for

example, barred private trash burning and required

all incinerators to be state-owned, there would be no

private activity identical to the State’s. Yet, we can

conceive of no reasons—and respondents offer none—

why on that basis such incinerators should suddenly

become immune from federal air quality regulations.

On the other hand, respondents surely cannot be

proposing an historical test, under which those ac-

tivities carried on by state governments in 1787 would

be exempt from federal laws regulating interstate

tion of the federal statute. See Crowder, The Spirit of Selective

Service 119-122 (1920); Holcombe, Zhe States as Agents of the

Nation, 1 Southwestern Political Science Quarterly 307 (1921).

This Court summarily rejected the argument that the Constitution

prohibited requiring state officials to administer the federal

statute. Selective Draft Law Cases, 245 U.S. 366, 373, 389.

10

commerce. As we have pointed out (Brief, p. 55 n. 65)

and as the intervenors discuss,’ most roads were

privately owued and managed in the early history of

our country.

In any event, respondents’ public-private distinc-

tion conflicts with Fry v. United States, 421 U.S. 542,

which upheld the Economic Stabilization Act of 1970

as applied to state employees engaged in a wide range

of activities that are in no wise identical to activities

in the private sector. Still further, their theories are

contrary to Sanitary District of Chicago v. United

States, 266 U.S. 405, in which the Attorney General

of the United States sued to enjoin the Sanitary Dis-

trict of Chicago from diverting water from Lake

Michigan in violation of federal law. Mr. Justice

Holmes, speaking for a unanimous Court, answered

the Sanitary District’s argument that the diversion,

which was pursuant to a state statute and a means of

disposing of Chicago’s sewage, was needed to protect

public health (266 U.S. at 426):

The main ground is the authority of the United

States to remove obstructions to interstate and

foreign commerce. There is no question that this

power is superior to that of the States to pro-

vide for the welfare or necessities of their in-

habitants. In matters where the States may act

the action of Congress overrides what they

have done.

The Sanitary District decision—which respondents

do not cite—is significant for a number of reasons.

’* Brief for Washington Area Bicyclist Ass’n, e¢ al., in No.

75-1055, at 20-25.

* Discussed i in our opening brief, at p. 53 n. 61.

11

At issue was sewage disposal, which might be deemed

an “essential” state function. Sewer systems are state

owned and operated; there is no identical private ac-

tivity. The State itself does not create sewage; the

private sector does; but the State is nevertheless re-

sponsible for the pollution generated. Moreover, the

Sanitary District decision required the state agency to

comply with federal law, thereby placing a mandatory

duty on state officers. In ful. lling that duty, the state

agency was required to alter the system of waste dis-

posal; and that would doubtless require the expendi-

ture of funds” or, as respondents put it, alteration

of the State’s “operating budget * * * which estab-

lishes priorities and programs through the appropri-

ation of funds” (Resp. Brief, p. 24).’* See note 23,

infra.

Illinois v. City of Milwaukee, 406 U.S. 91,” is also

8 See 266 U.S. at 425, 431. The City of Chicago had argued that

“it is threatened with the loss of a hundred million dollars.” /d.

at 431.

16 Respondents say we have cited no case to support the proposi-

tion that a federal official can “confer upon state agencies or offi-

cials 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” (Brief at 24). Sanitary District is

such a case ; the federal official was the Secretary of War; the state

officials were required to regulate their diversion of water in a

manner contrary to that required by state law; and they were sub-

ject to civil suits and criminal liability for their failure to comply.

See also, ¢.g., £2 parte Siebold, supra; Fry v. United States, 421

U.S. 542; cf. City of Tacoma v. Taxpayers of Tacoma, 357 U.S.

320, in which the Court recognized that Congress, acting under the

Commerce Clause, could confer additional authority on state or

municipal officials.

1? See our opening brief, p. 26.

226-548——-3

12

on point, despite respondents’ claim to the contrary

(Resp. Brief, at 43-44). In denying the State of IIli-

nois leave to file a bill of complaint under the Court’s

original jurisdiction, the Court held, unanimously, that

the State could sue in the federal district court, “‘ whose

powers are adequate to resolve the issues.” 406 U.S. at

108. The State’s suit was against four Wisconsin cities

and two local sewage commissions who allegedly dis-

charged 200 million gallons of inadequately treated

sewage cach day into Lake Michigan. The Court held

that the case was within the district court’s general

federal question jurisdiction (28 U.S.C. 1331) because,

in the absence of federal legislation on point, federal

common law imposed duties on States and municipali-

ties with respect to water pollution. 406 U.S. at

103-108."

This is still another instance where the Court recog-

nized that state and local governments may be subject

to mandatory federal requirements even in the exer-

cise of what might be deemed ‘‘essential” state fune-

tions. To be sure, in J/linois v. City of Milwaukee the

federal duties were to be developed by the judiciary’s

ereating federal common law and exercising tradi-

tional equitable powers. 406 U.S. at 108. But the deci-

sion speaks also to congressional authority because the

federal judiciary may fashion suck common law only

in regard to matters that are within Congress’ power

to regulate; in this regard, the federal judicial power

,*% In dictum, the Court also indicated that such federal common

law would control air in its “ambient or interstate aspects.” 406

U.S. at 103 See Washington v. General Motors Corp., 406 U.S. 109,

114-116.

a

13

is no greater than the legislative power." Indeed, the

Court noted that federal legislation could preempt the

field (406 U.S. at 107), and such legislation was en-

acted shortly after the decision.”

If one State is entitled under federal common law

to injunctive relief forcing another State and its

municipalities to clean up the pollution for which they

are responsible, a fortiori Congress has the constitu-

tional authority to impose such duties on state instru-

mentalities in order to protect the people of the entire

nation. This is peculiarly an area in which national

action is demanded. And there is no practical method

of avoiding federal action directly on a State when, as

here, the State itself bears responsibility for contami-

nation of the air through the use of its roads and

highways. Respondents say this is federal compulsion

on the States. We do not deny it. The law imposes a

duty and it has a sanction, But it is not for that

reason unconstitutional, as we have sought to

demonstrate.

Respondents advance two ‘further constitutional

objections that warrant a reply. First, they insist

that the EPA Administrator has directed the States

** As has been pointed out, it would be intolerable if the federal

courts could create “common law” that was not subject to congres-

sional revision. See Friendly, “In Praise of Erie—And of the New

Federal Common Law,” in Benchmarks 167-170 (1967).

*° See the Federal Water Pollution Control Act Amendments of

1972, 86 Stat. 816; Hnvironmental Protection Agency v. California

ex rel. State Water Resource Control Board, No. 74-1435, decided

June 7, 1976, in which the Court pointed out that under the new

law “all dischargers in the State are subject to a permit program

developed and carried out by the EPA.” Slip op. 14. See United

States v. Douglas County, 5 E.R3C. 1577 (D. Nev.) ; cf. Kansas

City, Mo. v. Kansas City, Kan., 393 F. Supp. 1 (W.D. Mo.) ; State

Water Control Board-v. T vain, 8 E.R.C. 1609 (E.D. Va.).

14

to legislate. We stated in our opening brief that this

is not a correct interpretation of the regulations (pp.

20 n. 14, 54). Respondents say this is a change of

position. It is not.”

Second, respondents contend that even if the reg-

ulations do not direct them to legislate, in order to

comply they will nevertheless have to legislate, at

least to the extent of appropriating the necessary

funds (Resp. Brief, at p. 24). But this in itself is not

a valid constitutional complaint. It is of no particular

significance whether States choose to implement the

required measures by enacting legislation, by adopt-

ing regulations, by issuing administrative directives

“ Resp. Brief, pp. 17-18, 23-26, 54-55, 57, 72.

*2 The regulations do not themselves require the States to enact

legislation. Rather, they assume that the States might view legis-

lation as necessary or desirable, notwithstanding the Administra-

tor’s conclusion that “the Clean Air Act and these regulations

can providé tlie legal basis for [state or local] programs” in the

absence of state authority (A. 437). The regulations thus

called for the submission of legislative proposals for EPA review

where legislation was thought to be “needed” or “necessary.” See,

e.g.. 40 C.FLR. 52.242(f) (A. 505) (California). That direction

was part of a general requirement that States submit “compliance

schedules” (like those for private sources) identifying the timing

of actions to be taken to achieve compliance with applicable sub-

stantive requirements. Thus, like compliance schedule require-

ments for private sources, the requirement was intended to assure

that incrementa] actions thought necessary by the sovrce owners

(here, the States) would be taken in a timely manner.

Respondents’ claim (Brief, p. 18, n. 25) that EPA has changed

its position rests on statements in the opinions below that do not

accurately reflect EPA’s position as presented to those courts. See

Pet. No. 75-960, App. 22a-23a (compare EPA brief below in No.

74-1007, at 14-15); Pet. No. 75-909, App. 26a (compare EPA

supplemental brief below in No. 73-3306 at 18 and 8, n. 8): Pet.

No. 75-1055. App. 17a—-18a n. 19 (compare EP A brief below in No.

74-1013 at 23-24).

15

or simply by acting. As Mr. Justice Holmes held for

the Court in Wisconsin v. Illinois, 281 U.S. 179, 197,

a sequel to the Sanitary District case in which Wis-

consin sought to compel Illinois to comply with an

earlier ruling of the Court,” ‘‘[i]f its constitution

stands in the way of prompt action it must amend it or

yield to an authority that is paramount to the State.”

State compliance here may require the expenditure

of funds; but that was also true in many of the cases

sustaining federal regulations as applied to the

States. Indeed, respondents concede that state-owned

incinerators must comply with federal emissions

standards * yet the purchase and operation of control

equipment for this purpose will doubtless entail sub-

stantial expenditures.gee Edelman v. Jordan, 415 U.S. 651, 668.

II.

RESPONDENTS’ STATUTORY ARGUMENTS

While most of respondents’ statutory arguments

are answered in our opening brief, a number of their

contentions warrant a further reply.

*8 See also Wisconsin v. [llinois, 278 U.S. 367, in which Mr. Chief

Justice Taft, speaking for a unanimous Court, stated (id. at 420-

421):

“The Sanitary District authorities, relying on the argument with

reference to the health of its people, have much too long delayed

the needed substitution of suitable sewage plants as a means of

avoiding the diversion in the future. Therefore they can not now

complain if an immediately heavy burden is placed upon the Dis-

trict because of their attitude and course. The situation requires

the District to devise proper methods for providing sufficient

money and to construct and put in operation with all reasonable

expedition adequate plants for the disposition of the sewage

through other means than the Lake diversion.”

** Resp. Brief, pp. 34, 38-39 n. 61.

16

Respondents argue that the 1970 Amendments to

the Clean Air Act are “‘merely an extension of prior

amendments,” allowing greater federal involvement

in the effort to control air pollution but representing

no marked departure from previous efforts, which

sought only to encourage the States to act (Resp.

Brief, at 27-28).* The Court has already rejected

this view of Congress’ intention. The 1970 Amend-

ments, the Court held in Train v. Natural Resources

Defense Council, 421 U.S. 60, 64, preserved the prin-

ciple that the States have the primary responsibility

for assuring air quality within their geographic

territory. The 1970 Amendments, however, differed

significantly from previous legislation regarding air

pollution. As Mr. Justice Rehnquist stated for the

Court, “[t]he difference under the Amendments was

that the States were no longer given any choice as to

whether they would meet this responsibility.” Id.

at 64.

As we pointed out in our opening brief (pp. 30-

32), when a State fails to promulgate an implementa-

tion plan, the Administrator is required by Section

110(¢) to promulgate one that meets the requirements

of Section 110(a) (2). Two of those requirements are

that a plan contain, where necessary, “transportation

controls,” Section 110(a)(2)(B), and include, to the

extent necessary and practicable, a provision ‘‘for

periodic inspection and testing of motor vehicles,” Sec-

tion 110(a)(2)(G). By any common understanding,

2° See also Resp. Brief, pp. 30, 32, 36-37.

17

those requirements contemplate controls on the use of

roads and automobiles.” As a practical matter, the

most essential type of controls (inspection and main-

tenance) ean only be effectuated by States and locali-

ties.” Thus, it is not surprising that “‘[t]he legislative

history of the Clean Air Amendments of 1970 * * *

shows a clear expectation that the states would have to

implement significant portions of their transportation

control plans * * *.” Commonwealth of Pennsylvania

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

258 (C.A. 3).™

2° See, ¢.g., S. Rep. No. 91-1196, 91st Cong., 2d Sess. 2, 12-14, 31

(1970), quoted in our opening brief, at p. 32 n. 26; and the col-

loquy between Senators Muskie and Spong during Senate con-

sideration of the Conference Report, 116 Cong. Rec. 42393 (1970).

7 Respondents do not appear to dispute this and, in any event,

Congress knew that a national system would not be possible. See,

e.g., 8. Rep. No. 91-1196, supra, at 12-13 (“In considering alter-

native means of controlling emissions of air pollution agents from

used vehicles, the Committee was unable to develop a feasible

national system”); id. at 31 (“Effective State emission testing

and inspection programs will be essential to effective implementa-

tion of ambient air quality standards * * *”); 116 Cong. Rec.

19204 (1970) (remarks of Rep. Staggers).

28 See, ¢.g., H.R. Rep. No. 91-1146, 91st Cong., 2d Sess. 3-4

(1970) (“Additionally, the legislation provides that States must

require inspection of motor vehicles in actual use” if this is neces-

sary to achieve ambient air quality standards) ; S. Rep. No. 91-

1196, supra, at 12-13; 116 Cong. Rec. 32903 (1970) (remarks of

Senator Muskie) (meeting air quality standards “is going to re-

quire every State Governor and the mayor of every city in this

country to impose strict controls on the use of automo-

biles * * *”); 116 Cong. Rec. 42387 (1970) (remarks of Senator

Muskie) (the legislation “will require that urban areas do some-

thing about their transportation systems, the movement of used

cars, the development of public transit systems * * *”),

18

Respondents say, however, that Congress provided

no remedy for a State’s refusal to implement trans-

portation control requirements contained in the rele-

vant implementation plan (Brief, pp. 32-49). Their

argument apparently is that if a State fails to draft an

implementation plan, the remedy is for EPA to draft

it; and if a State fails to enforce a plan the remedy

is for EPA to enforce it; therefore, if a State fails

to comply with the substantiy »rovisions of a plan

requiring affirmative action on its part the remedy is

for EPA to take over the actual implementation of

those substantive provisions. In other words, accord-

ing to respondents, a State’s refusal to comply with

the provision of a plan that requires it to act is not a

violation of that plan (Brief 34).

Respondents’ basic error is that they equate ‘‘en-

forcement” of the provisions of a plan with “‘compli-

ance” with the provisions of a plan. But they cannot

be equated, because they are quite different concepts

with a significant legal and practical distinction. En-

forcement is the taking of some action, administrative

or judicial, against a violator to compel it to act in

accordance with an affirmative duty contained in the

plan. Compliance, on the other hand, is the actual un-

dertaking of the affirmative duty. The Act, as we have

discussed, requires States to undertake certain affirma-

tive duties, such as inspection of motor vehicles. The

Act also authorizes the Administrator to seek judicial

enforcement to require State compliance with an af-

firmative duty. Sections 110(a)(2) and 113(a)(1).

19

Congress knew through experience that a voluntary

program to abate air pollution throughout the States

could not work. See Train v. Natural Resources De-

fense Council, supra, 421 U.S. at 63-65. But Congress

firmly intended that the air quality standards neces-

sary to protect the citizens of this nation be met. I*

imposed affirmative duties on the States in order to

assure that this would happen. If Congress had fur-

ther intended to require EPA, upon a State’s refusal

to act, to deploy armies of federal road maintenance

crews, federal mechanics, federal traffic police, and

federal registration and licensing officials throughout

each such State, Congress surely would have said so.

For it is that system of regulation, not the one repre-

sented by the position of EPA in these cases, that

would, as respondents put it, “stand as an unprece-

dented exercise of federal power” (Brief, p. 55) and

constitute a complete departure from the historic

division of responsibilities between the State and na-

tional governments in this country.

Iil.

RESPONDENTS’ ARGUMENTS REGARDING THE INSPECTION

AND MAINTENANCE PROGRAMS

Respondents assert that the “programs at issue here

will make at best a small contribution to achieving

the ambient air quality standards required by the

Clean Air Act” (Resp. Brief, at p. 14). For the rea-

sons that follow, we disagree.

In urban areas, automobiles. account for approxi-

mately seventy percent of carbon monoxide emissions

20

and forty percent of hydrocarbon emissions.” Without

inspection and maintenance programs in the States,

EPA has concluded, air quality standards cannot be

met. All automobiles in the particular area affected

must be tested periodically and those vehicles with

emissions over a certain level must have corrective

work done on them.

Federal controls on vehicle design and manufacture

are not in themselves sufficient.” Although EPA has

authority to order the recall of vehicles that exceed

the emission standards in actual use and has in fact

required a number of recalls, this authority extends

only to vehicles that have been “properly maintained

and used” by their owners. Section 207(c).

Over the past few years, EPA has conducted several

studies to measure the emissions of automobiles in

actual use. Estimates based on the data from these

studies indicate that, on average, carbon monoxide

and hydrocarbon emissions from 1975 model year

vehicles exceed the applicable emission standards the

* Shutler, Overview of Inspection/Maintenance (I/M), Pro-

ceedings of the Fourth North American Motor Vehicle Emission

Control Conference 111 (Nov. 5-7, 1975); see H.R. Rep. No. 91-

1146, supra, at 6; H.R. Rep. No. 94-1175, 94th Cong., 2d Sess. 208

(1976).

*° Certification under Section 206(a)(1) of the Clean Air Act

requires the testing of prototypes of cars for a new model year to

determine whether the design as expressed in the prototype is

capable of meeting emission standards prescribed under Section

202. Assembly line testing, which has just been begun under author-

ity of Section 206(b), see 41 Fed, Reg. 31472, determines only

whether vehicles coming off the assembly line meet the emission

standards,

21

first year after sale.” Available data indicate that

there are two major reasons for this disappointing

performance: lack of proper maintenance and deliber-

ate disabling of the emission control system.”

In 1973, EPA published estimates concluding that

total emissions of both hydrocarbons and carbon

monoxide could be reduced by between three and

*t Walsh, Zhe Need for and Benefits of Inspection and Mainte-

nance of In Use Motor Vehicles 4-5 and Figs. 3-5 (Nov. 9, 1976)

(internal EPA paper endorsed by the agency and distributed to

State and local agencies, as well as to interested members of the

public, for comment November 29, 1976) (a copy of which we are

lodging with the Clerk of the Court). However, California cars,

for which separate standards have been established under author-

ity of Section 209 of the Clean Air Act, have performed consider-

ably better. /d. at 6 and Fig. 8.

8? With respect to 1973 vehicles with approximately 15,000 ac-

cumulated miles carbon monoxide levels for normally maintained

cars are more than 40 percent greater than for those maintained

and tuned according to manufacturers’ specifications ; hydrocar-

bon levels are about a third higher. Walsh, supra, at 5, Figs. 6

and 7. For 1975 vehicles, parallel studies have not been done. How-

ever, a sample of “normally maintained” 1975 cars with an aver-

age of about 8,000 miles accumulated has been examined. This

sample was divided into those cars on which the engine idle CO

setting was properly adjusted and those on which it was not. Emis-

sions from the second class were 32 percent greater than those

from the first for hydrocarbons and almost twice as high for car-

bon monoxide. /d. at 6, Figs. 6 and 7. Indications are that sensi-

tivity of emissions to idle adjustment may be even greater for 1975

models than for cars from earlier model years.

In addition to the effect of lack of proper maintenance, EPA

studies have shown that 20 to 25 percent of 1975 vehicles ex-

amined have had emission controls removed or rendered inopera-

tive within one year of initial purchase. /bid. According to EPA

studies on cars from earlier model years, “tampering” of this na-

ture increases with vehicle age beyond the first year. /d. at 7.

22

fifteen percent through an inspection and mainte-

nance program.” In light of the new information

discussed above, EPA is now revising these estimates.

A draft of the revised estimates has been provided

to EPA regional offices and to selected State and

local officials for comment. Although the process of

revision is thus in its early stages, and the benefits

to be derived from any specific inspection and main-

tenance program will in any event depend heavily

on its individual design and implementation, it is

reasonable to predict the potential reduction in emis-

sions as a result of inspection and maintenance will

be ultimately listed as approximately 25 to 30 percent

for both hydrocarbons and carbon monoxide.” Since,

as we previously noted, automobiles account for ap-

proximately seventy percent of carbon monoxide

elissions and approximately forty percent of hydro-

carbon emissions in polluted urban areas,” hydro-

carbon emissions could be reduced by about ten to

twelve percent in such an urban area, and carbon mon-

oxide emissions by about eighteen to twenty percent,

through an inspection and maintenance program ap-

plicable to automobiles alone.” In short, the available

*° 40 C.F.R. Part 51, Appendix N.

** Walsh, supra, at 18-19.

*° About an additional 20 percent of total emissions of each of

these pollutants is accounted for by mobile sources other than

automobiles, such as trucks and motorcycles. These emissions, too,

can be reduced by periodic inspection and maintenance. However,

no such potential gains have been taken into account in this dis-

cussion.

°° See Shutler, note 29, supra, at 111.

23

information demonstrates that the nation will not

realize anything approaching a full return on its large

and continuing investment in emission controls on

new automobiles without implementation of inspec-

tion and maintenance programs.

As we noted in our opening brief (p. 50), the costs

associated with such a significant reduction in air pol-

lution are small. In States with safety inspection pro-

grams it is necessary only to add the emissions testing

equipment itself. It has been estimated that a modest

fee of only a few dollars per vehicle inspected would

cover the costs (A. 427).”

Several emissions inspection programs are also in

operation in States that do not have safety inspection

programs. In Arizona the complete program has been

set up through a State contract with a testing firm that

acquired the necessary property, constructed the test-

ing facilities, and now operates the program; the

major part of the fees collected from motorists ($5.00

per test) go to cover the contractor’s costs, not the

State’s costs directly. The only direct cost to the

State has been the administration of the contract.” A

program in Oregon has also been begun without a

safety program as a basis. The per vehicle fee in this

program is also $5.00.°

57 See also H.R. Rep. No. 94-1175, supra, at 240.

** Arizona Revised Statutes 36-1773.A. On January 1, 1977, the

State of Arizona’s program for the Phoenix-Tucson area became

fully mandatory.

* Oregon Revised Statutes 468.405 (1975 Repl.).

As to the cost of repairing vehicles that fail, limited data is

available from surveys conducted by the Oregon, New Jersey, and

24

A compulsory inspection and maintenance program

has been established by the City of Cincinnati, Ohio.“

Rhode Island has enacted legislation authorizing a

compulsory program to be operated (like the Arizona

program) by a private contractor,“ and the work of

selecting that contractor is well advanced. (In Cali-

fornia, a voluntary pilot inspection program in the

Riverside area is in operation.) In other States, efforts

Arizona programs. The New Jersey data show an average repair

cost of $33.00 for the 12 percent of cars that failed, with 65 per-

cent of the repairs costing less than the average. The Oregon data

show an average repair cost of $18.86 for the 35 percent of cars

that failed with 79 percent of the repairs costing less than the

average. The Arizona data show an average cost of $25.42 for the

47 percent of cars that failed with 67 percent of the repairs costing

less than the average. Walsh, supra, at Fig. 11. On the other hand,

such repairs will result in an improvement in fuel economy. /d.

at 21,

*® Respondents cite (Brief, p. 12 n. 22) the recent suit in United

States v. Ohio Department of Highway Safety, S.D. Ohio, No.

C-2-76-835. The circumstances surrounding this action are as fol-

lows. EPA promulgated a transportation control plan for the

State of Ohio which contained the requirement that an inspection

and maintenance program be established and operated in the City

of Cincinnati, As part of that program, the State was required to

deny registration to non-complying vehicles, The plan was not

challenged in a petition for review, and the City of Cincinnati is

currently operating an inspection and maintenance program. The

- State, however, refused to comply with the plan. The Agency sent

it a notice of violation (Section 113(a) (1)), held a Section 113(a)

(4) conference, and finally issued the State an administrative

order, all to no avail. Consequently, the United States initiated

suit seeking injunctive relief requiring the State to comply with

the provisions of the inspection and maintenance p

“a Chapter 139, Public Laws of 1976 (signed May 26, 1976)

(amending Title 31, Chapter 38 of the General Laws of Rhode

Island).

25

along this line are considerabiy less advanced. EPA

believes that the questions raised by these cases re-

garding the extent of federal authority to compel

States to take action have been an important ingredi-

ent in this lack of progress.

IV.

RESPONDENTS’ ARGUMENTS REGARDING THE BUS PURCHASE

REGULATIONS

Respondents argue that the regulations requiring

Maryland, Virginia and the District of Columbia to

submit statements evidencing financial commitments

sufficient to enable the Washington Metropolitan Area

Transit Authority (WMATA) to purchase new buses

are inconsistent with the WMATA compact and, in

any event, are arbitrary or capricious because the pur-

chase of new buses would be ineffective in the absence

of strong measures to discourage the use of private

vehicles. Upon reconsideration, the EPA Administra-

tor has decided to withdraw the regulations.

These regulations were promulgated three years ago

and have, as respondents note, “gone virtually un-

noticed in the ensuing years” (Resp. Brief, at 82).

In the court of appeals, Marylaud.and Virginia ar-

gued that if they made financial eoimmitments directly

to WMATA (as the regulations required, this would

violate the WMATA compact (Pet. No. 75-1050, App.

298) ; the court of appeals disagreed (ibid.). Only the

Commonwealth of Virginia sought review of that

judgment (Pet. No. 75-1050). It argued, as it had

26

in the court below, that under the terms of the

WMATA compact the Commonwealth had no finane-

ing responsibility because “on the Virginia side’’ this

was to be done only by local governments and the

Northern Virginia Transportation District (Pet. No.

75-1050, p. 12). Our opening brief responded to this

argument by noting that Virginia’s position was in-

consistent with its own transportation plan submitted

to EPA for approval, which contemplated the ae

chase of new buses (Brief, pp. 56-58).

Neither Virginia nor the other affected parties

argued in the court of appeals, as they now do for

the first time in this Court (Resp. Brief, pp. 83-84),

that these regulations would be ineffective as a result

of EPA’s revocation and Congress’ prohibition of cer-

tain parking surcharge requirements, which took

place long before oral argument below." 39 Fed. Reg.

1848; Energy Supply and Environmental Coordina-

tion Act of 1974, Pub. L. 93-319, 88 Stat. 246.

Now that respondents have raised the question,

however, the EPA Administrator has reconsidered

the technical basis for the regulations and coneluded

that they are no longer appropriate in the cireum-

" The District of Columbia alluded briefly to the problem (Brief

in No, 74-1013 below, at 32-33) but only as part of its argument

that the entire plan for the National Capital Interstate Air Qual-

ity Control Region should be remanded to EPA for promulga-

tion of a comprehensive plan for the area (id. at 25-34). Although

certain regulations were challenged as arbitrary or capricious, the

bus-purchase regulations were not among them. /d. at 3446.

27

stances that prevail. Without parking surcharges or

other provisions that will discourage the use of pri-

vate vehicles, bus purchases will be less effective than

originally contemplated. In addition, the advent of

subway service in the area may decrease the demand

for bus service to some extent, even if other factors

induce people to abandon their automobiles.” Finally,

EPA promulgated such regulations only for the

National Capital Metropolitan Area, and did so there

primarily because the States had proposed bus pur-

chases in their plans.** Now that they have withdrawn

their support for the idea, reliance on their original

intentions is clearly misplaced.“ For these reasons,

the EPA Administrator has concluded that the regu-

lations should be revoked and will publish notice of

“ Bus purchases and other mass transit improvements are in

themselves incentives to patronage of mass transit, and some meas-

ures other than parking surcharges (¢.g., exclusive bus lanes)

can discourage the use of private vehicles.

* See, e.g., A. 596, 606. By the time the bus purchase regula-

tions were promulgated, WMATA had also become committed to

expanding its bus fleet as quickly as possible (id. at 598, 606), and

Virginia had agreed to the feasibility of purchasing 750 buses (or,

by implication, the lesser number specified in EPA’s regulations)

(id. at 906).

** Although the intent of the regulations is clearly to increase the

size of the bus fleet serving the area, they do not explicitly pre-

clude the selling of old buses, as is apparently WMATA’s current

plan. Resp. Brief, p. 82. In addition, there is no explicit require-

ment for the use of the new buses to be purchased. Cf. ibid. Accord-

ingly, even strict enforcement of the bus purchase regulations

would not necessarily achieve the objective of fleet expansion.

28

their revocation in the Federal Register as rapidly

as possible.

However, we should note—as respondents candidly

point out—that WMATA has sought a federal grant

to finance 80 percent of the cost of 300 new buses to

be acquired during fiscal years 1976 and 1977 (Resp.

Brief, p. 82). This is precisely the same number of

new buses for fiscal years 1976 and 1977 mentioned in

the regulations respondents here challenge (see, e.g.,

40 C.F.R. 52.2435(e), set forth in our opening brief,

at p. 57 n. 66).

CONCLUSION

For the foregoing reasons and those contained in

our opening brief, the judgments of the Courts of

Appeals for the Ninth and Fourth Circuits should he

reversed, and the judgment of the Court of Appeals

for the District of Columbia Circuit should be re-

versed insofar as it prohibits the Administrator from

requiring a State to implement necessary transporta-

29

tion control measures, and sustains the regulations

requiring the purchase of additional buses, and af-

firmed in all other respects.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Perer R. Tart,

Assistant Attorney General.

A. RaymMonp RANDOLPH, JR.,

Deputy Solicitor General.

Harriet §. SHAPIRO,

Assistant to the Solicitor General.

Epmunp B. CLark,

New T. Proro,

MicHakEL D. GRAVES,

Attorneys.

G. Wim.1AM Frick,

General Counsel,

JoHn E. BoNnrIne,

Associate General Counsel,

GERALD K. GLEASON,

Deputy Associate General Counsel,

WituiaM F. PEDERSEN,

Attorney,

Environmental Protection Agency.

JANUARY 1977.

U8 GOVERNMENT PRINTING OFFICE, teT6