Opposition — Train v. District of Columbia

RESPONSE OF THE DISTRICT OF COLUMBIA TO THE

PETITION FOR WRIT OF CERTIORARI OF THE

UNITED STATES

IN THE

Supreme Court of the United States

Octoper Term, 1975

No. 75-1055

Russet, Train, ADMINISTRATOR

ENVIRONMENTAL Protection AGENCY,

Petitioner,

Vv.

District or CoLumBia, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

Joun R. RisHEr, JR.

Corporation Counsel, D.C.

Louis P. Rossrys,

Principal Assistant Corporation

Counsel, D.C.

Joun C. SALyEr,

Assistant Corporation Counsel, D.C.

Attorneys for Respondents,

District Building,

Washington, D. C. 20004

Telephone: 629-5067

INDEX

Sussect Inpex Pas

EE LESSEE A A 1

EE ee ae 2

ES 4

Cases Crrzp

Commonwealth of Virginia Ez Rel State Air Pollution Control Board

EE 2

District of Columbia v. Carter (1973) 400 US. 418 _.....-..---_---------- 3

District of Columbia v. Thompson Co. (1953) 346 US. 100 ___-.-__----- 3

District of Columbia v. Train, —— US. App. D.C. ——, 521 F.2d

EE a 3

EPA v. Brown, No. 75-0908 (9th Cir.) .....-.-.---.-.---------------.--.-- 2

EPA v. State of Maryland, No. 75-960 (4th Cir.) _.....----- muibetaenditienn 2

Pennsylvania v. EPA (3rd Cir. 1974), 500 F2d 246 _......- 3

Ee 4

Oruea AuTHORITIES CITED

Constitution of the United States Article I, §8, cl. 17 ~..-....--------- 3

District of Columbia Self-Government and Governmentai Reorgani-

sation Act of 1973, P.L. 93-198 87 Stat. 774 _.......----_-__---_-_---_- 3

IN THE

Supreme Court of the United States

Ocroper Term, 1975

No. 75-1055

Russet, Train, ADMINISTRATOR

ENVIRONMENTAL Protection AGENCY,

Petitioner,

Vv.

Distaict or CoL_umsi, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia

RESPONSE OF THE DISTRICT OF COLUMBIA TO THE

PETITION FOR WRIT OF CERTIORARI OF THE

UNITED STATES

On January 26, 1976, the Solicitor General, on behalf of

the Administrator of the Environmental Protection Agency

filed a petition for writ of certiorari to review the judgment

of the United States Court of Appeals for the District of

Columbia Circuit in the above-referenced cause.

OPINION BELOW

The opinion of the court of appeals is reported at 521

F.2d 971 and printed in full at App. A, la-125a of the ap-

pendix of the petitioner.

RESPONSE

On March 29, 1976 the Clerk of the Court infr ..2ed coun-

sel for the Respondent District of Columbia that the Court

has requested that a response be filed in this case by the

District. Accordingly, the District makes the following

response.

As is noted in the petition of the United States, other

petitions from similar cases arising in other Circuits are

pending before the Court.’ In addition the Commonwealth

of Virginia also has filed a petition for a writ of certiorari

in this case, seeking review of the opinion of the District

of Columbia Circuit. The District of Columbia has not

joined in that petition.

It is the position of the District of Columbia that the

decisions of the Circuit Courts of Appeals in Brown and

Maryland, supra n. 1, support its position fully. However,

this is an issue of great importance reaching as it does

into the roots of the relationship between the states and

the federal government.* The question presented is bound

to reoccur as the Administrator seeks to impose require-

ments on the states to assure compliance with the stand-

ards established under the Act. The inspection mainten-

ance and retrofit provision of the regulations‘ were re-

manded to the Agency for revision by the Circuit Court of

Appeals. To date no new promulgation has been issued

by the Agency. The District will await the new promulga-

tion and will then determine whether to again seek review

before the Circuit Court.

1 EPA v. Brown, No. 75-909 (9th Cir.); EPA v. State of Maryland, No. 75-

960 (4th Cir.).

2 Commonwealth of Virginia Ex Rel State Air Pollution Control Board v.

Train, No. 75-1050.

3The Clean Air Act Amendments, 42 U.S.C. 1857h(d) provides that the

District is a “state.”

4The pertinent regulatory requirements challenged are set forth in full in

the Appendix of the Circuit Court opinion in District of Columbia v. Train,

— US. App. DC. at——, 521 F.2d at 999 et seq.

3

The petitioner has repeatedly relied on the opinion of

the Third Circuit in Pennsylvania v. EPA, 500 F.2d 246

(3rd Cir. 1974), relative to the authority of the Administra-

tor of EPA to direct the states to adopt particular laws

at his direction. The District of Columbia Circuit rejected

the reasoning of the Third Circuit® with respect to the

implication that arises when a federal regulation seeks to

compel the states to enforce federal regulatory programs

in this fashion.

The opinions of the Fourth and Ninth Circuits conflict

with the Third Circuit opinion. The position of the District

in this matter is no less serious than for the states. It is

not merely that the District is denominated as a state for

purposes of the Act that is significant. Congress exercises

complete plenary power over the District,® and, in the exer-

cise of that power, has delegated certain of its authority to

the government of the District of Columbia.’ In so doing

it has reserved certain powers. However, Congress did not

delegate to the various federal agencies the authority to

promulgate regulations for the District of Columbia with-

out regard to the legislative authority delegated to the

Council. The police power hitherto completely vested in

Congress has been delegated in large degree to the Council

of the District of Columbia.* It is the position of the Dis-

trict of Columbia that the petitioner has no more authority

to direct the Council with respect to what laws it will adopt

than it has to tell a state legislature what laws to adopt.

In view of the prolonged delays that have ayisen in the

implementation of the clean air program nationally, it is

5 District of Columbia v. Train, —— US. App. D.C. ——, 521 F.2d at 904.

6 Art. I, $8, cl. 17 Constitution of the United States; see, e.g., District of

Columbia v. Thompson Co., 46 US. 100 (1953); District of Columbia v.

Carter, 409 US. 418 (1973).

7 District of Columbia Self-Government and Governmental Reorganisation

Act of 1973, P.L. 93-198, 87 Stat. 774.

8Jd. Subject to Congressional review and to certain reservations not rele-

vant here.

4

apparent that the issues that have been presented before

the various circuits should be decided by this Court in order

to decisively define the responsibilities between the states

and federal agencies and to iisure uniformity in enforce-

ment of the Act.

CONCLUSION

As the issues presented relate to the air quality pro-

blems of this region the District welcomes final review of

the questions of state and federal authority and responsi-

bility under the Act. The similar question with respect to

plan-revisions under the Act arose among the circuits and

required final resolution by the Court in Train v. NRDC,

421 U.S. 60 (1975). No less a need exists here to resolve

issues of exceptional significance.

Joun R. RisHer, Jr.

Corporation Counsel, D.C.

Lovis P. Rossrns,

Principal Assistant Corporation

Counsel, D.C.

Joun C. Sa.yer,

Assistant Corporation Counsel, D.C.

Attorneys for Respondents,

District Building,

Washington, D.C. 20004

Telephone: 629-5067