# Amicus Brief — Environmental Protection Agency v. Brown

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2162%3A10

## Record

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

## Text

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
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NE eT ere ree 10
DCD ccc cccuspeensneeonneedconeecesees 11
CPD 6 icc ccc ccenbaeeooesenbeetsenneet 11
ED ins eid inden daeaedebedanawesannseens 11
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DIT o¢.cct dencecugiaeneeetéucns eewnwceuuwet 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2162%3A10. Public record. Not legal advice.