Amicus Brief — Environmental Protection Agency v. Brown

FOR ARGUMENT

IN THE

Supreme Court of the United.

OcToBer TERM, 1976

Nos. 75-909, 75-960, 75-1050 an

—

MICHAEL RODAK, JR. CLERK

ENVIRONMENTAL PROTECTION AGENCY, Petitioner,

vs.

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

or CALIFORNIA, et al., Respondents.

ENVIRONMENTAL PROTECTION AGENCY, Petitioner,

Vs.

STATE oF MARYLAND, et al.. Ry spondents.

COMMONWEALTH OF VIRGINIA, ex rel. StaTE Arr POLLUTION

Contro. Boarp, Petitioner,

VS.

Russe... EK. Trarx, ADMINISTRATOR, ENVIRONMENTAL

Protection AGency, Respondent.

Russevi. FE. TRAN, ADMINISTRATOR OF THE ENVIRONMENTAL

ProrectTion AGENCY, Petitioner.

VS.

Districr or Cotumpta, et al., Respondents.

On Writs of Certiorari to the United States Courts of Appeals

for the Ninth, Fourth and District of Columbia Circuits

BRIEF OF PACIFIC LEGAL FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF STATE AND DISTRICT OF COLUMBIA

PETITIONERS AND RESPONDENTS

Rona.p A. ZUMBRUN,

JoHN H. FINDLEY,

Counsel, Pacific Legal Foundation,

455 Capitol Mall, Suite 465,

Sacramento, California 95814,

Attorneys for Amicus Curiae

Pacific Legal Foundation.

GLENN E. Davis,

Pacific Legal Foundation,

1990 M Street, N.W.,

Suite 550,

Washington, D.C. 20036,

Of Counsel.

PERNAU - WALSH PRINTING CO. -

SG2 MISSION STREET - SAN FRANCISCO, CA 94105

Opinions below

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The transportation control regulations violate the police

powers reserved to the states by the tenth amendment 3

II

The regulations abridge the right of the states to the

constitutionally-guaranteed Republican form of govern-

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Table of Authorities Cited

Cases Pages

Ambrosini v. United States, 187 U.S. 1 (1902) .......... 4

Brown vy. Environmental Protection Ageney, 521 F.2d 827

Cs GE, BE. vnc ccescvcconcnssesscéanteysceaeucat 2, 3,13

City of Santa Rosa v. United States E. P. Agency, 534

F.2d 150 (9th Cir. 1976), petition for certiorari sub nom.

Pacific Legal Foundation v. Environmental Protection

RE, TE TOG 6 6ebess bewdseddosnnvecndascsscces 13

District of Columbia v. Train, 521 F.2d 971 .............. 2

Duncan v. McCall, 139 U.S. 449 (1891) ................. 9

King v. Smith, 392 U.S. 309 (1968) ............cceceeee 7

National League of Cities v. Usery, 44 U.S.L.W. 4974

SEED écenvecnesneetansesanencestiddsaseteesenae 5, 6

New York v. United States, 326 U.S. 572 (1946) ........ 5

Oklahoma v. U.S. Civil Service Commission, 330 U.S. 127

CED hdsedsccnanecaccereivonsestasuieniehaaieael 6

Rosado v. Wyman, 397 U.S. 397 (1970) .................. 7

State of Arizona v. Environmental Protection Agency, 521

ae GP ceccceceusesesedetcntsecacvendbéissdeeses 2

State of Maryland v. Environmental Protection Agency, 530

Pe GED ccceucecacceesvesesennssucesnsseteedessonsies 2

Sugarman v. Dougall, 413 U.S. 634 (1973) .............. 9,10

The Mayor, ete., of the City of New York v. Miln, 36 U.S.

(11 Pet.) 102 (1887) ........ccceccecececceccecuceecs 4

Townsend v. Swank, 404 U.S. 282 (1971) ............... 7

Codes

California Health and Safety Code, Section 39176 ........ 11

Constitutions

United States Constitution :

Art. IV, See. eT 606666oe0sese buns ntouneeeuieeieeeds 8

De EAN 9 ov ces cc cavccccscceccovedssnccnks 3, 8

TaBLe oF AUTHORITIES CITED iii

Regulations

40 Code of Federal Regulations: Pages

755 oo oe eeueeeetenteuseseweuse 6, 12

OS eee erry ree eer 13

NE eT ere ree 10

DCD ccc cccuspeensneeonneedconeecesees 11

CPD 6 icc ccc ccenbaeeooesenbeetsenneet 11

ED ins eid inden daeaedebedanawesannseens 11

ED, on gc 6ngb6eseetebenanceeeseeoseses 11

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DT TD <<10scenugen budeussnaneesedbaneunaens 12

DC Kc civetsccunehdudekebasenenanwaqucdes 12

41 Code of Federal Regulations (October 15, 1976) Section

ST. -¢cccaceddandadeeaeehesestens$uneebsnabwnaenees 14

Rules

Supreme Court Rules, Rule 42 ...............e eee eeeeees 3

Statutes

Social Security Act, Title IV ........... cece eee eee eeeee 6

Federal-. id Highway Act of 1956, 23 U.S.C. §§101, et seq. 7

42 U.S.C. (Clean Air Act):

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Section 113 (42 U.S.C. §1857ce-8) ................2... 12

IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

Nos. 75-909, 75-960, 75-1050 and 75-1055

ENVIRONMENTAL PROTECTION AGENCY, Petitioner,

vs.

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

or CALIFORNIA, et al., Respondents.

ENVIRONMENTAL PROTECTION AGENCY, Petitioner,

VB.

Stare oF MaryLanp, et al., Respondents.

COMMONWEALTH OF VIRGINIA, ex rel. STATE AIR POLLUTION

ConTrOL Boarp, Petitioner,

vs.

Russeu. E. Train, ADMINISTRATOR, ENVIRONMENTAL

PROTECTION AGENCY, Respondent.

Russe.u E. TRAN, ADMINISTRATOR OF THE ENVIRONMENTAL

Protection AGENcy, Petitioner,

vs.

District oF CoLumBia, et al., Respondents.

On Writs of Certiorari to the United States Courts of Appeals

for the Ninth, Fourth and District of Columbia Circuits

BRIEF OF PACIFIC LEGAL FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF STATE AND DISTRICT OF COLUMBIA

PETITIONERS AND RESPONDENTS

2

OPINIONS BELOW

The opinions of the United States Court of

Appeals for the Ninth Circuit in Brown v. Environ-

mental Protection Agency and State of Arizona v,

Environmental Protection Agency are reported at

521 F.2d 827 and 521 F.2d 825, respectively. The

opinion of the United States Court of Appeals for

the Fourth Circuit in State of Maryland v. Environ-

mental Protection Agency is reported at 530 F.2d

215. The opinion of the United States Court of Ap-

peals for the District of Columbia Cireuit in District

of Columbia v. Train is reported at 521 F.2d 971.

INTEREST OF AMICUS

Pacific Legal Foundation (hereinafter PLF) is a

nonprofit, tax-exempt corporation organized and ex-

isting under the laws of California for the purpose

of engaging in litigation in matters affecting the pub-

lic interest. Policy for PLF is set by a Board of

Trustees composed of concerned citizens. Twelve

of the seventeen-member Board are attorneys. The

Board evaluates the merits of any contemplated legal

action and authorizes such legal action only where the

Foundation’s position has broad support within the

general community. The Board has authorized the

filing of this brief amicus curiae.

The Environmental Protection Ageney (hereinafter

EPA) published a transportation control plan for

California on November 12, 1973. On December 5,

1973, PLF petitioned the United States Court of

3

Appeals for the Ninth Circuit to review the plan

as well as EPA’s enforcement regulation published

November 6, 1973. Although more than 200 such peti-

tions for review were filed by public and private enti-

ties, PLF was the only petitioner, other than the

State of California petitioners, permitted to argue

the merits before the court of appeals. Brown v.

Environmental Protection Agency, 521 F.2d 827, 828

(9th Cir. 1975). That court, however, at the time it

issued Brown, granted the State of California’s mo-

tion to sever all non-state petitioners, including PLF.

Such severance notwithstanding, the court of ap-

peals in Brown considered issues raised only by PLF,

particularly those concerning the constitutional guar-

antee of a republican form of government. Brown,

supra at 838, 840. PLF believes that, possibly be-

cause of emphasis on other points, these issues may

not be fully developed by the parties.

Pursuant to Supreme Court Rule 42, this brief is

filed with the written consent of all parties, which

consent has been filed with the Clerk of this Court.

ARGUMENT

I

THE TRANSPORTATION CONTROL REGULATIONS VIOLATE

THE POLICE POWERS RESERVED TO THE STATES BY THE

TENTH AMENDMENT

The Tenth Amendment to the United States Con-

stitution reserves to the states and to the people

“t]he powers not delegated to the United States by

4

the Constitution, nor prohibited by it to the States.”

Among the powers reserved to the states by this

amendment is the “police power.” Because the states

existed before the United States Constitution, they

possessed the police power long before the adoption

of that organic document. The Mayor, etc., of the

City of New York v. Miln, 36 U.S. (11 Pet.) 102

(1837). A vital part of the police power is the power

of the states and their municipalities to regulate the

public health and safety.

The United States Supreme Court in Ambrosini v.

United States, 187 U.S. 1, 6 (1902), in dealing with

an Illinois dramshop act noted:

“The legislation was enacted in the exercise of

the police power for the safety, welfare, and

health of the community, and it is conceded that

that power is a power reserved by the states, free

from Federal restriction in any particular ma-

terial here.”

Indeed, the Court there noted:

“[A]ny government whose means employed in

conducting its strictly governmental operations

are subject to the control of another and distinct

government exists only at the mercy of the lat-

ter.” Id. at 7 (citations omitted).

EPA bases its authority to issue these regulations

on the power of Congress to regulate interstate com-

merce. (EPA Br. at 42.) From this, EPA reasons

that it may regulate the states in their capacity as

owners and operators of polluting transportation

facilities. (EPA Br. at 32.) These premises are

stretched beyond the breaking point, however, by

5

EPA’s conclusion that it is empowered to regulate

not merely direct pollution caused by state facilities,

but pollution allegedly resulting from the state’s fail-

ure to exercise its regulatory (governmental) func-

tions. (EPA Br. at 32-33.)

EPA has thus failed to make the vital distinction

of federal regulation of state owned facilities other-

wise indistinguishable from similar privately owned

facilities and the constitutionally protected govern-

mental functions of the state. In National League of

Cities v. Usery, 44 U.S.L.W. 4974 (1976), this Court

emphasized the distinction in citing New York v.

United States, 326 U.S. 572, 587-588 (1946) :

““A State may, like a private individual, own

real property and receive income. But in view of

our former decisions we could hardly say that a

general nondiscriminatory real estate tax (appor-

tioned), or an income tax laid upon citizens and

States alike could be constitutionally applied to

the State’s capitol, its State-house, its public

school houses, public parks, or its revenues from

taxes or school lands, even though all real prop-

erty and all income of the citizen is taxed.’” Na-

tional League of Cities, supra at 4976-4977.

This Court then amplified this authority:

“Tt is one thing to recognize the authority of

Congress to enact laws regulating individual busi-

nesses necessarily subject to the dual sovereignty

of the government of the Nation and of the State

in which they reside. It is quite another to up-

hold a similar exercise of congressional authority

directed not to private citizens, but to the States

as States. We have repeatedly recognized that

6

there are attributes of sovereignty attaching to

every state government which may not be im-

paired by Congress, not because Congress may

lack an affirmative grant of legislative authority

to reach the matter, but because the Constitution

prohibits it from exercising the authority in that

manner....” Id. at 4977.

The lesson of National League of Cities is that the

federal government is precluded from infringing on

state “functions essential to separate and independent

existence,” id., not because the Commerce Power

does not reach so far, but because the Reserved

Powers Clause prohibits it.

Federal regulations which require state officers to

propose statutes dictated by a federal agency to a

state legislature and, similarly, to adopt federally

dictated regulations and budgets must signal the

nadir of federal and state comity. Particularly since

the “stick” used to impel this end is the incredible

language of 40 C.F.R. § 52.23 which threatens state

officers with imprisonment and heavy fines for any

deviation from the federal dictates.

Standard federal policy has been to require states

to pass laws as a prerequisite to the receipt of fed-

eral funds. This “power of the purse” has been ap-

proved by the United States Supreme Court on

several occasions. See, e.g., Oklahoma v. U.S. Civil

Service Commission, 330 U.S. 127 (1946). Recently,

Chief Justice Burger, discussing the applicability to

the states of Title IV of the Social Security Act, de-

fined the limits of that power in a concurring opin-

ion:

7

“{T]t seems appropriate to keep clearly in mind

that Title IV of the Social Security Act governs

the dispensation of federal funds and that it does

no more than that. True, Congress has used the

‘power of the purse’ to force the States to ad-

here to its wishes to a certain extent; but adher-

ence to the provisions of Title IV is in no way

mandatory upon the States under the Supremacy

Clause.” Townsend v. Swank, 404 U.S. 282, 292

(1971).

In King v. Smith, 392 U.S. 309 (1968), Chief Justice

Warren also discussed the Aid to Families with De-

pendent Children provisions of the Social Security

Act:

“The AFDC program is based on a scheme of

cooperative federalism. . . . It is financed largely

by the Federal Government, on a matching fund

basis, and is administered by the States. States

are not required to participate in the program,

but those which desire to take advantage of the

substantial federal funds available for distribu-

tion to needy children are required to submit an

AFDC plan for the approval of the Secretary of

Health, Education and Welfare (HEW)... .”

392 U.S. 309, 316-317.

See also Rosado v. Wyman, 397 U.S. 397 (1970).

The portions of the Social Security Act upheld in

these cases present incentives to the states which the

latter may accept or reject. There is no attempt to

impose the federal will on an unwilling state.

The Federal-Aid Highway Act of 1956, 23 U.S.C.

§§101, et seg., operates similarly. The states may vol-

8

untarily accept federal funds for highway construc-

tion, but are not required to accept them or to adhere

to federal highway standards unless the funds are ac-

cepted. These federal laws are valid because of their

scrupulous regard for the powers of the states over

activities traditionally within the realm of state con-

trol.

A state may enact legislation in voluntary re-

sponse to the federal “power of the purse.” But it

need not submit to the usurpation of its sovereign

powers simply because one federal agency claims to

be exercising unlimited regulatory powers granted it

by Congress. EPA has overstepped the bounds of

state/federal sovereignty, and its regulations must be

overturned as violative of the Tenth Amendment.

II

THE REGULATIONS ABRIDGE THE RIGHT OF THE STATES

TO THE CONSTITUTIONALLY-GUARANTEED REPUBLICAN

FORM OF GOVERNMENT

Article IV, section 4, of the United States Consti-

tution states, “[t]he United States shall guarantee

to every State in this Union a Republican Form of

Government.” The regulations attempt to manipulate

state government in such a way as te destroy the

functions of that government and render it either a

creature of the federal government or a nullity. The

regulations purport to force the State of California

and its officers to (1) exercise the state’s legislative,

executive, and judicial power and (2) in some in-

9

stances refrain from the exercise of such powers.

Title 42, United States Code, Section 1857e-5(c), con-

fers upon the Administrator the power to promulgate

a state implementation plan; but the Administrator

has no power under the Clean Air Act to usurp basic

state sovereign power in doing so.

The leading case on point, Duncan v. McCall, 139

U.S. 449 (1891), states:

“By the Constitution, a republican form of gov-

ernment is guaranteed to every State in the

Union, and the distinguishing feature of that

form is the right of the people to choose their

own officers for governmental administration, and

pass their own laws in virtue of the legislative

power reposed in representative bodies... .” Id.

at 461 (emphasis added).

The recent case of Sugarman v. Dougall, 413 U.S. 634

(1973), noted:

“ ‘Rach State has the power to prescribe the qual-

ifications of its officers and the manner in which

they shall be chosen.’ Boyd v Thayer, 143 US

135, 161, 36 L Ed 103, 12 S Ct 375 (1892); See

Luther v Borden, 7 How 1, 41, 12 L Ed 581

(1849); Pope v Williams, 193 US 621, 632-633,

48 L Ed 817, 24 S Ct 573 (1904). Such power in-

heres in the State by virtue of its obligation,

already noted above, ‘to preserve the basic con-

ception of a political community.” Dunn v. Blum-

stein, 405 US, at 344, 31 L Ed 2d 274. And this

power and responsibility of the State applies...

to persons holding state elective or important

nonelective executive, legislative, and judicial po-

sitions, for officers who participate directly in

10

the formulation, execution, or review of broad

public policy perform functions that go to the

heart of representative government. ...” Id. at

647.

The regulatory amendment of state and local statutes

and ordinances usurps the constitutional right of Cal-

ifornians to “preserve the basic conception of a politi-

cal community” and the right to have laws of local

effect enacted by representatives selected by and re-

sponsible to the local political community.

Some of the regulations issued November 6 and

12, 1973 (including excerpts or summaries of their

objectionable parts), which fail under this rationale,

are as follows:'

I. Section 52.242 which forees the state to estab-

lish a program of light-duty vehicle inspection

and maintenance. It states in part:

“(f) The State of California shall submit

no later than February 1, 1974, a detailed

compliance schedule showing the steps it will

take to establish and enforce an inspection

and maintenance program pursuant to para-

graph (c) of this section, including the text

of needed statutory proposals and needed

regulations that it will propose for adoption.

The compliance schedule shall also include:

“(1) The date by which the State will

recommend any needed legislation to the

State legislature.

“(2) The date by which necessary equip-

ment will be ordered.

1All regulations are cited to Title 40, Code of Federal Regula-

tions.

If.

IT.

IV.

ll

“(3) <A signed statement from the Gover-

nor and State Treasurer identifying the

sources and amount of fumds for the pro-

gram. If funds cannot legally be obligated

under existing statutory authority, the teat

of needed legislation shall be submitted.”

(Emphasis added.) ;

Sections 52.243(¢) and (f) by which the state

must prohibit the use of motorcycles at certain

times and during certain months, and must

submit to the EPA the text of needed state

statutory proposals and regulations needed to

implement the motorcycle ban;

Section 52.244 by which the state must estab-

lish an oxidizing catalyst retrofit program and

must submit the text of implementing statutes

and regulations that it will propose for adop-

tion;

Section 52.245(a) which provides that “[t]he

State of California retrofit program, authorized

under § 39176 of the State of California Health

and Safety Code ... shall be extended to the

San Joaquin Valley and Sacramento Valley

Intrastate Air Quality Control Regions.”:

Section 52.257 in which the state is forced to

establish a computer-aided carpool matching

system ;

. Section 52.258 which forces the City of San

Diego to ban automobiles and allow only buses

on certain of its streets;

VII.

VIII.

IX.

12

Section 52.259 which forces the state to grant

preferential treatment to buses and carpools on

named segments of state and interstate high-

ways;

Section 52.260 which purports to amend, by

fiat of the EPA Administrator, a San Diego

County air pollution control district regula-

tion ;

Sections 52.261 and 52.263 which force the

state to establish preferential bus and carpool

lanes in the San Francisco Bay Area and Los

Angeles regions; and

X. Section 52.23 which threatens state officials

with imprisonment and heavy fines for failure

to comply in the slightest detail with the fed-

erally-imposed controls. If any constitution-

ally-elected representative of the people of

California “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” by neglecting to propose

the EPA dictated statutes and budgets or

adopt EPA dictated regulations for the pro-

grams demanded by EPA bureaucrats, the dra-

conian penalties are applied. The regulation

provides for enforcement action under Section

113 of the Clean Air Act (42 U.S.C. § 1857¢-8)

which specifies penalties of a fine of $25,000 per

13

day of violation, or by imprisonment for not

more than one year, or by both. These penalties

are doubled for subsequent offenses.

Such removal of the legislative and executive pow-

ers from the popularly elected government of the

States constitutes an abridgement of the right of the

people of those States to a republican form of gov-

ernment. Surely, this constitutional guarantee has

not been eroded to the point where State officers have

become mere rubber stamps and errand boys for om-

nipotent federal administrative agencies.

Perhaps the most telling argument against this

attempt at government by puppetry is the princi-

ple of government taking political responsibility for

its own actions. Here EPA is attempting to force

the States to take steps which may well prove to be

politically unpopular. The political repercussions will,

however, fall upon the States as the publicly visible

enforcing agency and not upon EPA. In a portion

of the California Transportation Control Plan not

covered by the court of appeals’ decision in Brown

(because it did not require state action or enforce-

ment), EPA proposed to limit the gasoline available

to California motorists to the amount needed to at-

tain the air quality standards. 40 C.F.R. § 52.241.

In practice, this amounted to a 100 percent reduction

throughout almost all of California. City of Santa

Rosa v. United States FB. P. Agency, 534 F.2d 150,

152 (9th Cir. 1976), petition for certiorart pending

sub nom. Pacifie Legal Foundation v. Environmental

Protection Agency, No. 75-1875. Rather than face the

14

political consequences of an almost complete prohibi-

tion of gasoline in the nation’s largest State, EPA

revoked the gasoline limitation regulation. 41 Fed.

Reg. 45565 (October 15, 1976). That this revocation

was a political decision is made clear by the acting

Administrator’s statement that while the revocation

renders the States’ Implementation Plans ‘defective

as a legal matter” the benefits of ‘‘retaining the gaso-

line rationing regulations are outweighed by the seri-

ously disruptive social and economic consequences of

such regulations.” Jd.

Because this regulation was promulgated by EPA

to be enforced by EPA, EPA was able to utilize po-

litical considerations in revoking it. The remainder

of the State Implementation Plans is designed to

require state enforcement. But no matter how politi-

cally unpopular these programs may prove, the States

are not granted the luxury of revocation exercised

by EPA in the instance of gasoline rationing.

The principle of political responsibility for one’s

acts is basic to our republican form of government.

Federal agencies must not he permitted to manipulate

unwilling State officers as a political shield against

public reaction to controversial programs.

lo

CONCLUSION

For the reasons stated above, Pacific Legal Foun-

dation urges that the decisions of the Courts of Ap-

peals for the Ninth, Fourth and District of Columbia

circuits, insofar as they preclude EPA from interfer-

ence in state governmental functions, be affirmed.

Respectfully submitted,

RONALD A. ZUMBRUN,

JouHN H. FINDLEY,

Counsel, Pacific Lega! Foundation,

Attorneys for Amicus Curiae

Pacific Legal Foundation.

GLENN E. Davis,

Of Counsel.

December 1976