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

No. 75-1050

o the Supreme Court of the Hnited States

OcToBER TERM, 1975

_ COMMONWEALTH OF VIRGINIA EX REL: STATE AIR

POLLUTION CONTROL’ BOARD, PETITIONER

Vv.

RUSSELL E. TRAIN, ADMINISTRATOR, AND

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

ROBERT H. Bork,

Solicitor General,

Department of Justice,

Washington, D.C. 20530.

ROBERT V. ZENER,

General Counsel,

Environmental Protection Agency,

Washington, D.C. 20460.

In the Supreme Court of the Hnited States

OcTOBER TERM, 1975

No. 75-1050

COMMONWEALTH OF VIRGINIA EX REL. STATE AIR

POLLUTION CONTROL BOARD, PETITIONER

Vv.

RuSsseLL E. TRAIN, ADMINISTRATOR, AND

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

Petitioner seeks review of a decision affirming in part

and vacating in part certain regulations of the Adminis-

trator of the Environmental Protection Agency (EPA) to

be incorporated in a transportation control plan to improve

and maintain the air quality in the National Capital area.

On January 26, 1976, the government also petitioned

for a writ of certiorari in the instant case (Train v. District

of Columbia, No. 75-1055). In that petition, and our related

petitions (Environmental Protection Agency v. Brown,

No. 75-909, and Environmental Protection Agency v.

State of Maryland, No. 75-960)', we have asked this Court

to consider two questions:

'We served copies of all three petitions on petitioner when we

filed our petition in No. 75-1055.

(1)

2

|. Whether, upon a State’s failure to adopt an imple-

mentation plan meeting the requirements of the Clean Air

Act, the EPA Administrator has authority under the Act

to require the State to inspect motor vehicles to assure

that they are properly maintained to control airborne

pollutants within the State.

2. Whether, if the EPA Administrator has such statu-

tory authority, the Clean Air Act is in this respect a valid

exercise of Congress’ power under the Commerce Clause

of the Constitution.

Petitioner contends that the Administrator has no statu-

tory authority to require the State to refuse to register

vehicles that do not conform to federal requirements;

that he has no statutory or constitutional authority to

require the State to establish exclusive bus lanes and to

contribu.e to the purchase of more buses; and that peti-

tioner is not the owner or operator of the affected bus

fleet (Pet. 2-3). We submit that the first contenfion is

fairly comprehended within the first question raised in

our petitions, the second is so closely related to the ques-

tions we have raised that it merits review together with

them, and the third does not warrant review by this Court.

The statutory scheme, the challenged regulations, and

the decision below are summarized in our petition for a

writ of certiorari in Train v. District of Columbia, No.

75-1055. As we there pointed out, the Clean Air Act,

81 Stat. 485, as amended, 42 U.S.C. 1857 ef seq., requires

the Administrator to promulgate standards for maximum

concentrations of particular pollutants in the air (Section

109). The States must then develop plans to achieve and

maintain these standards within each air quality control

region in the State (Section 110(a)(1)). The Administra-

tor reviews these state implementation plans for con-

formity to the statutory requirements designed to assure

that they provide for effective enforcement of the con-

centration standards (Section 110(a)(2)). If the Admini-

strator finds an implementation plan inadequate, he

3

must promulgate an appropriate plan for the State (Sec-

tion 110(c) ). When the Administrator finds “any person”

in violation of any implementation plan, Section 113 of

the Act authorizes him to undertake enforcement mea-

sures, including application to an appropriate district

court for a temporary or permanent injunction.

The Administrator disapproved in part the implementa-

tion plans submitted by Virginia, Maryland and the Dis-

trict of Columbia, and accordingly, on November !I5 and

December 6, 1973, promulgated certain additional reg-

ulations to be incorporated in the plans. These regulations,

based largely on proposals by the jurisdictions affected,

were designed to ensure that each jurisdiction would

establish a program for the inspection and maintenance

of certain motor vehicles in the National Capital area,

establish exclusive bus lanes in certain designated high-

way corridors? and increase bus service in the area by.

inter alia, contributing to the purchase of more buses.

Each jurisdiction was required to submit detailed com-

pliance schedules showing the steps it would take to esta-

blish and enforce the required programs, including iden-

tification of the sources and amounts of funding antici-

pated (Pet. App. 299-327). Virginia, Maryland and the Dis-

trict of Columbia did not submit the required schedules;

instead, they petitioned the court of appeals for review

of the Administrator’s action pursuant to Section 307(b)

(1) of the Clean Air Act, as amended, 84 Stat. 1708, 42

U.S.C. 1857h-5(b)(1).4

“Person” is defined in Section 302(e) to include a “State. munici-

pality. and political subdivision of a State.”

‘A highway corridor may include a number of highways providing

alternative routes between given points.

4Since the implementation plans involved the District of Columbia.

the United States Court of Appeals for the District of Columbia Cir-

cuit was the appropriate circuit court to review the Administrator's

action in promulgating the plans. 42 U.S.C. 1857h-5(b)(1): Pet. App.

276. n. 6.

4

The court held that the Clean Air Act did not authorize

the Administrator to require the States to adopt legislation

or regulations to establish a transportation control program

found necessary by the EPA. Thus, if a State fails to submit

an acceptable plan, the Administrator must promulgate the

regulations to be applied within the State: he cannot com-

pel the State to do so. But the court also indicated that

when such regulations have been promulgated, the Act

may be read as authorizing the Administrator to require

the States to enforce them (Pet. App. 282-287). The court

then considered the constitutionality of the Act as so inter-

preted. and concluded that a State could be required to

enforce federal regulations designed to control pollution

the State caused directly (e.g., through operation of state-

owned vehicles) or indirectly (e.g., through permitting use

of its roads by vehicles not conforming to federal require-

ments). It concluded that the provisions relating to ex-

clusive bus lanes and increased bus service reflected

proper federal regulation of indirect pollution sources

controlled by the States. But it also decided that although

the federal power extended to requiring the States to

prohibit the use of state roads by vehicles that do not

comply with federal standards, it could not constitutionally

extend to requiring the State to inspect privately operated

vehicles to assure that they comply with those standards

(Pet. App. 287-294).

[he court below thus upheld the exclusive bus lane and

increased bus fleet regulations, but remanded the auto

inspection, maintenance, and retrofit regulations to the

Administrator with directions to promulgate complete

and enforceable regulations to cure the deficiencies in

the state plans (Pet. App. 298-299).

|. Petitioner asks. as do we. that this Court review the

question whether the Administrator has authority to re-

quire the States to enforce federally established limitations

— am

5

on motor vehicle emissions through inspection and main-

tenance programs. We do not, however, agree with peti-

tioner’s formulation of the issue as being whether state

registration laws are pre-empted by the Clean Air Act;

there is no suggestion that the emission standards replace

any part of the state registration laws, or render them

inoperative in any way. Instead, they are simply an added

requirement to be enforced by the State. Cf. City of Bur-

bank v. Lockheed Air Terminal, 411 U.S. 624; Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230.5 With this

reservation, we believe the first question raised by peti-

tioner involves substantially the same issues as the first

question in our petitions for certiorari in this case and in

Brown and Maryland, and, for the reasons noted in our

petitions, that those issues merit review by this Court.

2. Petitioner also contends that the Administrator lacks

the statutory and constitutional power to require the

State to establish exclusive bus lanes and contribute to

the purchase of additional buses.* This contention is

‘The petition also assumes that the emissions standards are ty be

implemented by a “federal emission inspection” (Pet. 3, 6). The chal-

lenged transportation plan contemplates State, rather than federal.

inspection systems, a choice the court of appeals here found to be

unconstitutional. Our petition in this case seeks review of that judicial

determination.

Petitioner's objection to the bus fleet increase regulations is based

primarily on the contention that sole responsibility for the purchase of

the buses in the National Capital Metropolitan Area is vested in the

Washington Metropolitan Area Transit Authority (WMATA), not the

petitioner. But petitioner participates in WMATA through the North-

ern Virginia Transportation District. which is authorized under state

law to make commitments for the acquisition of transit facilities and

equipment. The local communities served also contribute to WMATA

(Pet. 12). The Administrator's regulations accurately reflect these

financial arrangements by requiring commitments for the acquisition

of buses to be made either by “the Commonwealth of Virginia or by

6

closely related to the statutory and constitutional issues

concerning the automobile inspection and maintenance

regulations raised in our petitions in this case and in

Brown and Marvland: the underlying question of the ex-

tent of the Administrator's authority to require state actions

to implement the Clean Air Act is the same. Moreover.

the court in Brown, supra, found the similar bus lane

regulations there involved to be unauthorized by the Clean

Air Act. Accordingly. the Court may wish to consider this

issue together with the issues raised in our petitions.

its local governments” (Pet. App. 318). Moreover. petitioner's current

disavowal of any responsibility for bus purchases is inconsistent with

its position in its own proposed transportation plan. See 38 Fed. Reg.

20792 (1973): Record, p. 5003.

Petitioner also objects to the cost of requiring it to implement both

the bus lane and the fleet increase regulations. Regardless whether

the cost to a State of complying with federal standards is a proper

basis tor invalidating a federal regulation. but see. e.g., Emplovees v.

Vissourt Public Health Department, 411 U.S. 279. 284: Oklahoma v.

Guy F. Atkinson Co., 313 U.S. 508. 527. petitioner over-estimates the

cost to the State of these regulations. The bus lane regulations contem-

plate the designation of existing highway lanes for the use of buses

during peak hours. rather than additional highway construction. The

expenses of the additional buses will be substantially funded—up to

SO percent by the tederal government through grants under the Urban

Mass Transportation Act of 1964, 78 Stat. 302. as amended. 49 U.S.C.

1601 er seg. See E.P.A. Hearings on National Capital Area Plan.

CA. App. 252. 269. 501-503: 49 U.S.C. (Supp. IV) 1603.

Finally. petitioner suggests (Pet. 12) that it is inappropriate to

require Virginia to establish bus lanes on the George Washington

Parkway. which is maintained and regulated by the federal govern-

ment. But that requirement is based directly on petitioner's own sug-

gested implementation plan. which proposed bus lanes for the George

Washington Parkway corridor. and advised the EPA that special

memoranda of understanding with the National Park Service were

unnecessary because of the Service's close working relationships with

the state and iocal authorities (see Record. pp. 5000-5002).

3

3. Petitioner raises as an issue, but does not separately

argue, the question of the ownership and responsibility

for operation of the bus fleet within the National Capital

area. This question was not raised or considered below,

and accordingly this Court should not consider it. Lawn v.

United States, 355 U.S. 339, 362-363, n. 16; Adickes v.

S.H. Kress & Co., 398 U.S. 144, 147, n. 2. In any event,

it does not warrant review by this Court. Petitioner admits

its ownership of and responsibility for the use of state

highways; the requirement to contribute to the purchase

of more buses is directed at altering the use of those high-

ways in order to minimize air pollution. In that context,

the precise means Virginia has utilized to provide bus ser-

vice to its inhabitants is irrelevant. It is enough that, as

noted above, the state and local governments participate

in the agency through which the service is provided. The

details of that participation do not affect the important

statutory or constitutional questions at issue here, and are,

in any event, peculiar to the National Capital area since

they depend on the nature of the compact creating the

WMATA. This Court thus need not consider them.

Accordingly, the Administrator does not oppose the peti-

tion, but suggests that if the petition is granted, the grant

should be limited to questions | and 2, which involve peti-

tioner’s statutory and constitutional claims.

Respectfully submitted.

RoBERT H. Bork,

Solicitor General.

ROBERT V. ZENER,

General Counsel,

Environmental Protection Agency.

Marcu 1976.

DOJ-1976-03