Petition — Virginia ex rel. Air Pollution Control Board v. Train

Supreme Court, & &

FILED

JAN 26 1976

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

No €5- 1059

COMMONWEALTH OF VIRGINIA, Ex REL.,

STATE AIR POLLUTION CONTROL BOARD,

Petitioner,

v.

RUSSELL E. TRAIN, ApMINIsTRATOR, AND

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

ANDREW P. MILLER

Attorney General of Virginia

WALTER A. McFarRLANE

Deputy Attorney General

J. THomaAs STEGER

RicHarp K. C. SUTHERLAND

Assistant Attorneys General

Supreme Court Building

1101 E. Broad Street

Richmond, Virginia 23219

TABLE OF CONTENTS

Page

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TABLE OF CITATIONS

Cases

Brown v. E.P.A., 521 F.2d 827 (9th Cir. 1975) 20.002... ceceeeeee 5

Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132

DUTETETIET <cciptessnieiontsecicetsccidipeciiapaliptediectiinedidlembenambadsedichibenidaneennntentedepeininaiell 6, 8

Huron Portland Cement Co. v. Detroit, 362 U.S. 440 (1960) ........ 7

Maryland v. E.P.A., ...... F.2d ...... SD, TTI: cepushsetumatinnmesiandes 5

Pennsylvania v. E.P.A., 500 F.2d 246 (3rd Cir. 1974) 00000... 5

ee ee ee 6

United States v. California, 297 U.S. 175 (1936) 200. i)

Constitution

United States Constitution, Article I, § 10 2.020.200... cceeccceeceteeeeee 12

Statutes Page

BF I AD cccnienisnsiceninisininchtanitlainnansiinctininmindisinibieiibsepimineaitiniten 13

Clean Air Act, § 110(a), 42 U.S.C. § 1857c-5(a) 0 eee 2

Clean Air Act, § 110(c) (1), 42 U.S.C. §1857c-5(c) (1) .............. 2,3

Clean Air Act, § 113, 42 U.S.C, § 1857-8 o.oo... cseceeeeeeeenees 2, 4

Clean Air Act, § 116, 42 U.S.C. § 1857ded oo ceceeceeee eens 2, 8

Clean Air Act, § 307(b) (1), 42 U.S.C. § 1857h-5(b) (1) .............. 3

Washington Metropolitan Area Transportation Compact, Pub. L.

89-774, 80 Stat. 1324 (Va. Acts 1966, Ch. 2), Title III,

eS TE ID chientiininiscchiearerennecisncecintataiamnpnniinemnnatinnesinniniidia 2, 11

Code of Virginia (1950), as amended, § 46.1-32 —....0..-.--2.-e- 7

Supreme Court of the United States

lea

COMMONWEALTH OF VIRGINIA, ex REL.,

STATE AIR POLLUTION CONTROL BOARD,

Petitioner,

v.

RUSSELL E. TRAIN, ApMINIsTRATOR, AND

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

PRELIMINARY STATEMENT

The Commonwealth of Virginia, ex rel., the State Air

Pollution Control Board, prays that a writ of certiorari

issue to review the judgment of the United States Court of

Appeals for the District of Columbia Circuit entered on

October 28, 1975. 3

OPINION BELOW

The opinion of the court below is reported at 521 F.2d

971 (D.C. Cir. 1975) and appears as Appendix A. (The

pagination of the decision, as contained in the Appendix,

reflects the first printing by West Publishing Co., and not

that of the Reporter volume. )

2

STATUTORY PROVISIONS INVOLVED

The statutory and regulatory provisions involved are set

forth in the Appendix and include:

(1) Section 110(a) of the Clean Air Act, 42 U.S.C.

§ 1857c-5(a)

(2) Section 110(c)(1) of the Clean Air Act, 42 U.S.C.

§ 1857c-5(c) (1)

(3) Section 113 of the Clean Air Act, 42 U.S.C.

§ 1857c-8

(4) Section 116 of the Clean Air Act, 42 U.S.C.

§ 1857d-1

(5) Section 307(b)(1) of the Clean Air Act, 42 U.S.C.

§ 1857h-5(b) (1)

(6) Washington Metropolitan Area Transportation Com-

pany, Pub. L. 89-774, 80 Stat. 1324 (Va. Acts 1966,

Ch. 2), Title III, Article VII, § 16

(7) 40 C.F.R. Part 52, Subpart J (D.C.) V (Maryland),

and VV ( Virginia )

JURISDICTION OF THE COURT

The judgment of the court below was entered on October

28, 1975. The jurisdiction of this court is invoked under

28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the Administrator of the United States En-

vironmental Protection Agency has the statutory authority

to preempt a state’s registration law, by conditioning the

continued operation of such law upon the incorporation

3

therein of the results of a federally established emission

inspection?

2. Whether the Administrator of the United States En-

vironmental Protection Agency has the constitutional and

statutory authority to require a state to construct exclusive

bus lanes and make a commitment to purchase additional

buses.

3. Whether the Commnowealth of Virginia can be re-

garded as the owner and operator of a bus fleet, when in

fact such bus fleet is owned and operated by the Washington

Metropolitan Area Transit Authority?

STATEMENT OF THE CASE

This is an appeal from a judgment which affirmed, in

part, and vacated, in part, certain regulations promulgated

by the Administrator of the U.S. Environmental Protection

Agency on December 6, 1973. The petitioner herein had

sought judicial review of these regulations by filing a peti-

tion for review pursuant to § 307(b) (1), 42 U.S.C. § 1857

h-5(b)(1) (App. B) of the Clean Air Act, 42 U.S.C.

1857, et seq. The petition was originally filed in the United

States Court of Appeals for the Fourth Circuit, but was

transferred to the court below, the Court of Appeals for the

District of Columbia Circuit, upon motion of the respondent

Administrator.

The regulations under review purport to be a transporta-

tion control plan, for the National Capital Air Quality

Control Region, promulgated by the Administrator under

§ 110(c), 42 U.S.C. § 1857c-5(c), (App. B) of the Clean

Air Act. They were promulgated after the Administrator dis-

approved the transportation control plans submitted by

Virginia, Maryland and the District of Columbia on the

4

grounds that they contained certain regulatory and enforce-

ment deficiencies, including the failure of the jurisdictions

to guarantee that the necessary state laws and appropria-

tions would be forthcoming. Confronted with these de-

ficiencies, the Administrator prepared his own “plan,”

which consisted primarily of regulations which ordered the

governments involved to submit the missing elements and

correct the deficiencies. Thus, these regulations directed the

states to develop a motor vehicle emission inspection pro-

gram, to provide the laws, regulations, financing, adminis-

tration and enforcement necessary for such a program. In a

similar fashion, the regulations also directed the states to

develop and enforce a program which would require the

installation of retrofit air pollution control devices on motor

vehicles. The regulations directed local governments to en-

force a ban against on-street parking under certain circum-

stances. The regulations required Virginia, Maryland and

the District of Columbia to construct several exclusive bus

lanes and to make financial commitments to enable the

Washington Metropolitan Area Transit Authority to pur-

chase 475 additional buses by 1977. The three governments

were also directed to construct a total of 180 miles of new

commuter bicycle lanes. Failure to carry out any of these

duties would result in the application of the sanctions found

at § 113,42 U.S.C. § 1857c-8 (App. B).

These regulations were challenged by the petitioner on

the basis that they were beyond the statutory and constitu-

tional powers of the Administrator and also that they were

arbitrary and capricious. The court below held that the

Clean Air Act required the Administrator, not the states,

to develop and promulgate the substitute regulations when

state-submitted plans are found to be inadequate. The court

also held that the Administrator could not constitutionally

compel the states to administer and enforce his regulations.

5

Such requirements were therefore vacated. The court held,

however, that the Administrator could prevent the states

from registering vehicles which do not pass the federally

established emission inspection, and the states could also be

compelled to construct the bus lanes and make the commit-

ment to provide the additional buses. The requirements for

180 miles of commuter bicycle lanes were vacated, inas-

much as the only evidence for them in the record consisted

of some survey taken in Philadelphia.

“The Administrator had also promulgated similar trans-

portation control plans in other regions of the nation, and

these promulgations were also challenged, in certain in-

stances, by the affected states. The various Circuit Courts

of Appeals which heard these challenges issued decisions

which differ, in varying degrees, from the decision of the

court below. In Pennsylvania v. E.P.A., 500 F.2d 246 (3rd

Cir. 1974), the Third Circuit held that the Administrator

had both statutory and constitutional authority to order

Pennsylvania to develop, administer, legislate for, and en-

force the requirements for inspection and maintenance,

retrofits, bus lanes, etc. In Brown vy. E.P.A., 521 F.2d 827

(9th Cir. 1975), and Maryland v. E.P.A., ...... F.2d ......

(4th Cir. 1975), the Ninth and Fourth Circuits, respectively,

held that the Clean Air Act did not authorize the Adminis-

trator to require the states to correct the deficiencies in their

submitted plans or to otherwise be ordered to act as the

Administrator’s servants. Rather, the Administrator was

to develop, administer and enforce the plan, when the states

chose not to. Having ruled on the statutory question, these

two Circuits thereby avoided the constitutional question,

although both strongly suggested that the powers asserted

by the Administrator would be unconstitutional, had they in

fact been found in the Clean Air Act.

6

ARGUMENT

A.

The Court Below Erred In Affirming The Lawfulness Of The Ad-

ministrator’s Regulations To The Extent That They Prohibit

The States From Registering Vehicles Which Do Not Conform

To A Federal Inspection.

The court below held that the Administrator, acting pur-

suant to Congressional authority, could prescribe a rule

which would prohibit Virginia from registering a motor

vehicle which does not have a certificate of compliance from

a federally-established emission inspection.* In effect, this

regulation would allow the continued operation of Virginia’s

registration law only if Virginia refuses to register persons

who do not comply with the federal emission inspection. In

essence, therefore, the court below has held that the Ad-

ministrator may preempt the Virginia registration law, un-

less it is consistent with the Administrator’s regulation.

The registration of motor vehicles is well within the

police power of the states. It is a well-settled rule that a

statute enacted in the execution of a reserved power of a

state is not to be regarded as inconsistent with an act of

Congress passed in the execution of a clear power under the

Constitution unless the repugnance or conflict is so direct

and positive that the two cannot be reconciled or stand

together. Savage v. Jones, 225 U.S. 501, 535 (1912). As this

Court has stated in Florida Lime and Avocado Growers,

Inc. v. Paul, 373 U.S. 132, 142 (1963), “. . . federal regula-

tion of a field of commerce should not be deemed preemp-

* The regulations in question appear at 40 C.F.R. §§ 52.2441(d) ;

52.2444(e) , 52.2446(e) , 52.2447(e), (App. A, pp. 319, 320, 322-327).

The court below affirmed these regulations ‘only to the extent that

they restrain the operation of state registration. The court did not

affirm the portion of the E.P.A. regulations which purported to require

Virginia to not allow the nonregistered vehicles to operate.

7

tive of state regulatory powers in the absence of persuasive

reason—either that the nature of the regulated subject per-

mits no other conclusion, or that Congress has unmistakably

so ordained.” In the present case, the Administrator has the

undisputed statutory power to inspect motor vehicles and

to prohibit them from operating if they fail his inspection.

The registration laws of Virginia do not conflict with the

Administrator’s powers. Compliance with the federal inspec-

tion merely becomes an additional requirement which is im-

posed before one can operate a motor vehicle. The Ad-

ministrator can utilize a decal system to indicate com-

pliance or noncompliance with his inspection, and he can

obtain a list of vehicle registrations from the Common-

wealth, if he needs them. Pursuant to § 46.1-32 of the Code

of Virginia (1950), as amended, (App. B), registration lists

are available for purchase.

The situation involved in the present case is, in effect,

the reverse of the situation found in Huron Portland Cement

Co. v. Detroit, 362 U.S. 440 (1960). There, the federal

government was the licensing authority, and the city was the

authority which regulated air pollution. This Court found

no conflict in the concurrent exercise of each government’s

powers. The purpose of the Detroit air pollution ordinance

was to enhance the cleanliness of the community. The mere

possession of a federal license was no immunity from the

normal incidence of the local police power. In the same

way, the mere possession of a state registration is no im-

munity from the incidence of the federal commerce power.

A state registration indicates nothing more than compliance

with certain state requirements; it does not compel anyone

to operate a vehicle in violation of any federal requirement.

Indeed, at present, the state requires registration of certain

vehicles used as interstate carriers, even though these ve-

8

hicles must also be certified in accordance with federal inter-

state commerce regulations. There is no conflict between the

two; the owner can comply with both.

Since there is no conflict in practice between state regis-

tration and federal emission inspection, we must look to the

other aspect of the rule regarding preemption, as described

in the Florida Lime and Avocado Growers case, supra:

the question whether Congress has unmistakably ordained

preemption. We find no such unmistakable expression, in

the Clean Air Act, that Congress intended that a state

registration law should be preempted in such a way that it

can no longer continue unless it incorporates or depends

upon the results of a federal emission inspection.

There are, of course, sections of the Clean Air Act which

do unmistakably authorize degrees of preemption of state

laws. A clear expression of preemption, for example, is

found at § 116 of the Act, which states, in part,

“cc

. that if an emission standard limitation is in

effect under an applicable implementation plan or

under §§ 111 or 112, such State or political subdivision

may not adopt or enforce any emission s.andard or

limitation which is less stringent than the standard or

limitation made under such plan or section.” 42 U.S.C.

§ 1857d-1 (App. B).

The Virginia registration law does not specify compliance

with any emission standard or limitation, as a precondition

to registration. To the extent that the Virginia law would

specify an emission standard which might be less stringent

than that specified by the Administrator, then only that

portion of the law would be preempted. Otherwise, the

Virginia registration law is not an air pollution control

measure; it is a police regulation, the primary purpose of

which is to identify the ownership of motor vehicles. There

is no clear and unmistakable expression, in the Clean Air

-_ =)

9

Act, of Congressional intent to preempt this police power, by

preconditioning the continued operation of the registration

law upon incorporation therein of federal inspection results.

It must be noted in this regard that the court below did not

point to any express provision in the Act which clearly

authorizes such preemption. The Court merely concluded, in

the briefest fashion, that such authorization existed.

Accordingly, it is respectfully submitted that the lower

court erred in affirming the lawfulness of those portions of

the Administrator’s regulations which restrain, or preempt,

the operation of a state’s registration laws, except upon the

incorporation of the results of a federally-established emis-

sion inspection.

B.

The Lower Court Erred In Holding That The Administrator Has

The Constitutional And Statutory Power To Expend Vast Sums

Of State Money To Regulate Pollution Sources Caused By The

General Public Through The Construction Of Exclusive Bus

Lanes And Commitments To Purchase Buses For Another

Agency.

The court below said of the Clean Air Act, that “. . . the

language in the statute is broad enough to include authority

to require that the states conform their transportation sys-

tems to federal standards, e.g. by constructing exclusive

bus lanes or expanding their bus fleets.” (App. A, p. 281;

emphasis added.) “The streets and highways and bus sys-

tems of the states are not being regulated by the Adminis-

trator as direct emitters of pollution but rather as factors

which influence the use of pollution sources by other parties.

We believe that these state-owned transportation systems

are analogous to the railroad operated by the state in

United States v. California, supra. This situation is similar

to federal statutes passed in the 1890’s requiring the railroad

to operate safe trains.” (App. A, p. 288; emphasis added. )

10

It is respectfully submitted that the lower court and the

Administrator have found a state-owned transportation sys-

tem and bus fleet where none exists. Buses in the geograph-

ical area in question are the property of and are operated

by Washington Metropolitan Area Transit Authority, a

completely separate and autonomous public body. Chapter

2, Article V, § 12, [1966] Virginia Acts of Assembly 5, 10.

The Commonwealth of Virginia neither owns nor operates

any such bus fleet. The Commonwealth does not own or

operate any transportation system in any location; at most,

it Owns, maintains, and regulates a highway system, only

one clement in a transportation system. That system is avail-

able to and is traversed daily by the general public for pur-

poses of commerce and pleasure.

The lower court also said of the Clean Air Act, “. . .

However, an analysis of the language of the Act, and

particularly of its enforcement provisions, does not appear to

support the Administrator’s claim that Congress intended

to authorize him to regulate sources of pollution caused by

the general public by requiring the states to enact statutes

and to administer and enforce the programs contained in

the EPA plan.” (App. A, p. 281; emphasis added.) Yet

the court could also conclude, “. . . Acting under its com-

merce power, the federal government thus can order the

states to operate their transportation systems in accordance

with federal regulations designed to protect the health of

the nation’s citizens by requiring them to purchase buses

and construct exclusive bus lanes.” (App. A, p. 288; em-

phasis added. )

Turning again to the lower court’s favored 1890's anal-

ogy, it is submitted that it breaks down if the present

regulations are applied to a “now-for-then” fact situation.

If the Administrator of 1890 had said to California, “Horses

are dirty creatures. We want freight to move by rail, so we

11

can cut down on the number of horses on the roads. Now,

to do that, you buy 475 box cars and give them, or the

money, to the Southern Pacific Railroad.”” Then we would

have the present regulation-situation.

There is a vast difference between telling a state: If you

operate a facility for public service, you shall operate it in

the safest manner presently known; and telling that same

state: For the public good, you shall give this other agency

$16,625,000 (475 buses at $35,000, conservative cost of a

standard bus) to decrease pollution by the general public.

For one thing, the appropriation of tax monies is a legisla-

tive function. Under the Administrator’s plan, the General

Assembly of Virginia would be reduced to the sole function

of assessing taxes after they have been appropriated by the

Administrator.

The lower court found that the Washington Metropolitan

Area Transportation Compact, Pub. L. 89-774, 80 Stat.

1324 (Nov. 6, 1966); Chapter 2, [1966] Virginia Acts of

Assembly 5, meant that Congress had given its approval

to a means of funding, so as to validate the Administrator’s

regulation, saying, “. . . The most that could be criticized

in the regulation might be a technical error in leaving open

the possibility that these commitments may be made directly

to WMATA by the states rather than from the states to

Districts and thence to WMATA.” (App. A, p. 298; em-

phasis added.) This logic is tainted with the same flaw as

that in the railroad analogy—each assumes to be a fact that

which is not a fact.

Title III, Article VII, § 16, of the Compact, declares as

a policy, “. . . that, as far as possible, the payment of all

costs shall be borne by the persons using or benefiting from

the Authority’s facilities and services and any remaining

costs shall be equitably shared among the federal, District

of Columbia and participating local governments in the

12

zone.’ (App. B, emphasis added.) Financing on the Vir-

ginia side of the zone is to be done by contracts between

local governments and Northern Virginia Transportation

District and WMATA, or betwen the local governments

and WMATA. The Commonwealth of Virginia is not

committed to any financing of WMATA projects, either

directly or indirectly.

The Adminstrator would create a new compact, not mere-

ly carry out existing provisions of the existing compact.

This the Constitution of the United States says he cannot

do, [U.S. Const. Art. I, § 10] even under the guise of

unilaterally requiring three separate contracts with one

purpose.

It is a new compact, for he has conveniently omitted one

of the parties in the financing; a party who is bound by the

present compact to share “equitably” in the cost of mass

transit plans; a party which has available more funds than

all the other parties combined—the Federal Government.

It is interesting that the Administrator should forget that

party. It may be that the same mental myopia seized his

faculties when he required the Commonwealth of Virginia

to establish an exclusive bus lane on the George Washington

Parkway; a facility constructed, maintained, and regulated

by the Federal Government.

An equally compelling reason for retaining the federal

presence in the “mass transit as an alternative to personal

automobile travel picture” is that the Federal Government

is the largest single employer in the District of Columbia

area [38 Fed. Reg. 33704 (Dec. 6, 1974) ], thus it generates

much of the commuter automobile travel the Administra-

tor’s regulations are designed to limit, if not halt. If the

Administrator can get the commuters on the buses, a large

percentage will be there because they are federal employees,

and because of this federal action. Increasing the bus fleet

13

to handle the additional riders the Administrator is creating,

is certainly a federal problem, at least in part. The Ad-

ministrator claims to be following Congressional policy by

getting the commuters out of the automobiles and into the

buses. It is our position, however, that Congress did not say

the Commonwealth of Virginia should be obligated to spend

over $5,500,000 to carry out that Congressional policy.

The Administrator claims that he has the power to con-

trol the use of highways and streets of Virginia because the

Commonwealth in times past adopted certain transportation

policies which encouraged automobile travel, such as, build-

ing and maintaining highways, thus making automobile and

truck travel more efficient and safer, and, thereby, en-

couraging the use of motor vehicles for commerce and

pleasure. He most conveniently forgets, however, the federal

participation in, and encouragement of those policies. The

Congress, as a matter of federal policy, has declared that it

is in the national interest to accelerate the construction of

federal-aid highway systems. 23 U.S.C. §101(b) (1973)

[The policy here enunciated was enacted in 1958]. It must

be remembered that highways are not nuisances, per se, and

are used for other than commuting purposes. Federal par-

ticipation in the cost of constructing highways in Virginia

is justified, among other reasons, because of their need as

avenues in event of national emergencies.

If it is to be federal policy that highways and buses are

coterminous then this concept must be supported by federal

funds. It is unconscionable to allow the Administrator to

postulate that Congress has changed its well established

position and at the same time impose the entire obligation

for the resulting consequences on Virginia. Only the Federal

Government through Congressional action has the means

to satisfy the Administrator’s determinations. If Congress

does not see fit to provide buses, the Administrator may not

14

decide for himself that Congressional policy favors more

buses, and provide for them from the Treasury of Virginia.

Federal policies may modulate with each passing wind if

the cost and responsibilities of those changes may be shifted

by an Executive promulgation to the states or localities. If

the total cost is to fall upon the states, then we are saddled

with the worst of all possible governments: having the

strong national government of the present United States

Constitution, but the state financing of the Articles of Con-

federation.

If the states must be responsible for total funding, then

they may well assume they can assert authority over the

project thus purchased. If the states are to be merely tax

gathering organizations for the Executive branch of gov-

ernment, then Congress becomes merely an appendage of

the Executive will. Allowed to proceed in this unrestrained

manner, the Executive branch supersedes both the national

legislature and state government; consequently, the checks

and balances concept of our system of government is ren-

dered nugatory.

It cannot be that this is the New Federalism; assuredly,

it is no Old Federalism. Not only does it deny a republican

form of government to this State, but to the nation as well.

If such policies are not restrained by this Court, nothing

shall prevent the Executive branch, under the scope of an

act of Congress, from using such legislation as a springboard

to compel the states or localities to finance any conceivable

project. In the instant cases, since apparently in the lower

court’s reasoning the financial burden is unimportant (App.

A, p. 295), the Administrator would be just as readily

justified in ordering the three jurisdictions in question to

provide the entire balance of the financing for the WMATA

subway project as he did in directing the present action.

15

This issue is important, not just to Maryland, District of

Columbia, and Virginia, but to every state. The Clean Air

Act has only begun to be applied. The major urban areas

will be followed by the smaller urban areas, until eventually

every town and hamlet will have emission and transporta-

tion controls. It is a national problem which the states can-

not and should not finance. Notwithstanding this fact, unless

the Administrator is checked at this relatively early stage,

the trend of human nature will be to conjure up more and

more elaborate plans and controls. With no budget to limit

his promulgations, there will be no sense of proportion or

responsibility. Power without responsibility produces an

unhealthy situation, whether in the private or the public

sector.

There is no credible evidence that can assure anyone at

this particular stage in the study of the pollution problem

that, once sufficient buses are provided, the commuter will

utilize such transportation. It is an unconscionably expensive

test for Virginia, since, not only does she lose control over

her own budget and administration but can be financially

constricted at the capricious whim of a nonresponsive en-

tity. This Honorable Court is the only agency now available

to restore the balance which is essential to reestablish har-

monious state and federal cooperation in the solution of a

pervasive problem.

CONCLUSION

This case involves the interpretation of a federal statute

in such a way as to constitute a drastic invasion of traditional

state action. The degree of federal preemption affirmed by

the lower court, however, cannot be sustained on the basis of

either actual conflict with state laws, or an unmistakable

expression of statutory intent. In addition, the regulations

which compel the construction of bus lanes and the com-

16

mitments to purchase additional buses are an attempt to

extend the Administrator’s power to a degree which is statu-

torily and constitutionally impermissible. Finally, the deci-

sion in the instant case differs in significant aspects from the

decisions issued by other Circuit Courts of Appeals which

addressed essentially identical questions. For these reasons,

this Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

ANDREW P. MILLER

Attorney General of Virginia

WALTER A. McFarLANE

Deputy Attorney General

J. THomas STEGER

Ricwarp K. C. SuTHERLAND

Assistant Attorneys General

Supreme Court Building

1101 E. Broad Street

Richmond, Virginia 23219

17

CERTIFICATE OF SERVICE

The undersigned hereby certifies that the foregoing Peti-

tion for a Writ of Certiorari was served by mailing three

true copies thereof, postage prepaid, to: The Solicitor

General, Department of Justice, Washington, D. C. 20530;

Robert V. Zener, General Counsel, U.S. Environmental Pro-

tection Agency, Washington, D. C. 20460; John C. Salyer,

Office of Corporation Counsel, District Building, Wash-

ington, D. C.; Martin A. Ferris, III, Assistant Attorney Gen-

eral, State of Maryland, O’Connor State Office Building,

201 W. Preston Street, Baltimore, Maryland 21201 ; Stephen

M. Pratt, 4009 Chain Bridge Road, P. O. Box 537, Fairfax,

Virginia 22030; J. Howard Middleton, Jr., City Attorney’s

Office, 320 King Street, Suite 200, Alexandria, Virginia

22314, Clarence M. Ditlow, 1412 Foxhall Road, N.W.,

Washington, D. C. 20007, all on this the 23rd day of

January, 1976.

J. THomas STEGER

Assistant Attorney General

Commonwealth of Virginia