intervenors brief — Train v. District of Columbia

Supreme Court of the Mnited §

IN THE

OCTOBER TERM, 1976

No. 75-1055

RUSSELL TRAIN, Administrator,

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

WASHINGTON AREA BICYCLIST ASSOCIATION, INC., METRO-

POLITAN WASHINGTON COALITION FOR CLEAN AIR, INC.,

BREATHERS FOR THE

REDUCTION OF ATMOSPHERIC HAz-

ARDS TO THE ENVIRONMENT,

Petitioners-Intervenors

V.

DISTRICT OF COLUMBIA, ET AL.

On Writ of Certiorari To The United States Court of Appeals

For the District of Columbia Circuit

BRIEF FOR PETITIONERS-INTERVENORS

Of Counsel:

JOEL D. JOSEPH

Davip G. HAWKINS

Attorney for Petitioners-Intervenors

Mailing Address:

NATURAL RESOURCES DEFENSE

COUNCIL, INC.

917 15th Street, NW

Washington, D.C. 20005

(202) 737-5000

Watergate Office Building, Suite 850

600 New Hampshire Ave., NW

Washington, D.C. 20037

(202) 338-5560

WILSON - EPES PRINTING Co..

Inc. - Re 7-6002 - WASHINGTON. D. C. 20001

I el

a a

REET SR ONS eo CTS

Constitutional Provisions and Statute Involved .............

Statement

I la

Argument:

I. The

Clean Air Act Authorizes EPA to Require

Road Owners and Operators to Manage Road

Use

ee

II. The Clean Air Act May Constitutionally Require

State Owners and Operators of Roads to Man-

age Such Roads to Reduce Pollution ...................

A.

B.

C.

Conclusion

A State is Not Immune from All Regulation

Under the Commerce Clause ......................

The Clean Air Act Does Not Displace State

EROS eee orIa CELE DONE

The Clean Air Act Does Not Affect Integral

Operations of Traditional State Govern-

Ie ND iiinitscsiccniiniicerniticntisiacencbnesistindiann

States Must Be Responsible For Their Pol-

luting Activities to Protect Strong Interests

¢ & gs RCE REE ae

18

SF

II

CITATIONS

Cases: Page

Arizona V. EPA, 521 F.2d 825 (9th Cir. 1975) .... 4

Brown V. EPA, 521 F.2d 827 (9th Cir. 1975) -........ 4, 20

Coyle v. Smith, 221 U.S. 559 (1911) ....................... 18

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

Ge, TD ecnctteintcsinninstresntnthabiniiniidlliensapiiinnenittinnntetgl 4,5,7

Flint v. Stone Tracy Co., 220 U.S. 107 (1911)........ 24

Fry v. United States, 421 U.S. 542 (1975) ....11, 17, 18, 30

Gibbons v. Ogden, 21 U.S. (9 Wheat.) 1, (1824) -.... 22

Griggs V. Allegheny County, 369 U.S. 84 (1962) .... 9

Helvering Vv. Powers, 293 U.S. 214 (1934) -............ 24, 25

Hendrick v. Maryland, 235 U.S. 610 (1915) ............. 23, 24

Kane v. New Jersey, 242 U.S. 160 (1916)................ 23, 24

Lane County v. Oregon, 74 U.S. (7 Wall.) 71

II nccnseeitecsnennesiiidapniceliicememtiasatiiiasiiiiiisiniiniammcninieatiintignsitite 18

Maryland v. EPA, 530 F.2d 215 (4th. Cir. 1975) -.... 4

Maryland v. Wirtz, 392 U.S. 183 (1968) -.............. 10

National League of Cities v. Usery, 96 S.Ct. 2465

EE es ey 5, 10, 11, 12, 18, 19, 20, 24, 27

Natural Resources Defense Council vy. EPA, 475

FA BO I SG, i ee 3

Oljato Chapter v. Train, 515 F.2d 654 (D.C. Cir.

TET stasis ceiitiosisiinsciaaiaraetinduciteMaistetieiidaihiaatiisidlalpiitnalianliiieit 16

Pennsylvania v. EPA, 500 F.2d 246 (3d. Cir.

SETI ciccisnittiniipntninaetiipuinhansiuaiiimtasiiepaiaaitiatalatiogs daaiiiai 4

Saviers v. Smith, 101 Ohio St. 182, 128 N.E. 269

HITTITE sccsceinnspsinien<hsomsurtieuetapeeicetiiieasidininatliatsdeiidaiaainiiln 24

South Carolina v. United States, 199 U.S. 437

RN AE RR rn ea REAR 21

South Terminal Corp. v. EPA, 504 F.2d 646 (lst.

i, CI saciccitdenteinecsicenciecbcneiiietibiateletatahinititeenb idence 7

Texas V. EPA, 499 F.2d 289 (1974), cert. denied,

44 U.S.L.W. 3746 (June 29, 1976) _...................... 15

Train V. Natural Resources Defense Council, 421

Bs ee UTED cnissisciseresnncectnsnsctasenaninssianimniaduidiadltieiasiaad 8, 14, 16

Union Electric Co. v. EPA, 96 S.Ct. 2518 (1976).. 3, 14,

16

United States v. California, 297 U.S. 175 (1936) .. 10, 11,

18, 24

ern

Ii

CITATIONS—Continued

Page

United States v. Northwestern Pacific R. Co., 235

F.965 (N.D. Cal. 1916) .............000000. 8

United States v. Toledo, Peoria I. Western R. Co.,

280 F.Supp. 243 (N.D. Ind. 1968) 0. 8

U.S. Constitution :

Article I, Section 8, clause 3-20.00. 2

Article I, Section 8, clause 18 —.......-.. 2

Article VI ......... aitihdanenieiniaieeeiieeaiad 2

Tenth Amendment ........................... 2

Statutes and Regulations:

Clean Air Act Amendments of 1970, 84 Stat. 1676,

42 U.S.C. 1857, et seq. ... iiekenndisiamebaeantiiissnsasiadiiins 2,3

Section 110, 42 U.S.C. 1857c-5 —........... 2, 3, 18, 14, 16

Section 110(a), 42 U.S.C. 1857c-5 (a)... 3

Section 110(a) (2), 42 U.S.C. 1857c-5(a) (2) .. 14

Section 110(a) (2) A-H, 42 U.S.C. 1857c-5 (a)

ITI scinicienestinserstclatpainetaintaninssieliiattibles em SO 13

Section 110(a) (3), 42 U.S.C. 185%c-5 (a) (3)... 16

Section 110(c), 42 U.S.C. 1857¢-5(c) 0. 3, 7,14

Section 111, 42 U.S.C. 1857c-6...0 16

Section 113, 42 U.S.C. 1857c-8 ...........2..0.22... 2,4

Section 118, 42 U.S.C. 1857f .........000..- 16

Section 202, 42 U.S.C. 1857f-1 ............. 16

Section 307, 42 U.S.C. 1857h-6 ...............-..... 4

Fair Labor Standards Act, 52 Stat. 1060,

I a chimeceinien 10

I 11

I i “ 12

Federal Aviation Act, 88 Stat. 418, 49 U.S.C.

1511(a) 8,9

Federal Safety Appliance Act, 71 Stat. 352, 45

is 5 8

IV

CITATIONS—Continued

Page

GD Ga, De ccieiciintntnerntiitiaibitlasetieiei sc antien 25

California Bus. I.P. Code Section 25658 _............... 9

Ann. Code of Maryland

Article 2B, Section 118(a)I(g) —..000000-0 9

Article 48, Section 641 ........................................ 9,10

a Fis TD TO ectiitccctnctctcrtctentnetiesceresieninas 9

Article 89, Section 49C (A) ...........2...02222...- 9

Code of Virginia

i a 21

i 21

EEL ae a ; : 21

Regulations for the Control and Abatement of Air

Pollution, Sections 2.706(a) (2), 2.706(d), Vir-

ginia State Air Pollution Control Board, De-

EES SE: RE EE °C 8

Miscellaneous :

38 Fed. Reg:

S6Gea, Nevember 6, 19738 —..............-..-2i---..---- 7

31232, 33, 37, 39, 41-44; November 12, 1973 .. 17

33369-71; December 3, 1978 .............................- 17

$3708, December 6, 1978 ................................... 17

33705-06; December 6, 1973 _................. _.....-..- 17

American Public Works Association, History of

Public Works in the United States 1776-1976,

RES SES ee a rn ee, 22, 23, 25

Bureau of National Affairs, Environment Re-

ee a g

California Implementation Plan for Achieving and

Maintaining the National Ambient Air Quality

Standard, Revision 3, June 21, 1973, submitted

Op Be I TE, SD cinrtetertctentttinticnnicininainnide 15, 17

Vv ‘

CITATIONS—Continued

Cleveland, W.S., et al., “The Analysis of the Ozone

Problem in the Northeast United States,” Air

Pollution Control Association, Proceedings, Con-

ference on Ozone/Oxidants—Interactions with

the Total Environment (1976) .............0000000000.....

Dearing, C.L., American Highway Policy (Brook-

NE ESA ERE Se

Martinez and Meyer, “Urban-Nonurban Ozone

Gradients and their Significance,” Air Pollution

Control Association, Proceedings; Conference on

Ozone/Oxidants—Interaction with the Total En-

LE

Rae, J.B., The Road and the Car in American Life

(MIT Press, Cambridge, 1971) —..........000

U.S. Department of Commerce, “Standard Metro-

politan Statistical Areas Defined by Office of

Management and Budget,” January 1, 1976,

Maps GE-50, Number 55 |...

U.S. Congress, Joint Committee on Federal Aid

in the Construction of Post Roads, “Federal Aid

to Good Roads,” Committee Print, April) 25,

FR ASE Sa eR RN Se MS ee

U.S. EPA, Office of Air Quality Planning and

Standards, Monitoring and Air Quality Trends

Report, 1973, EPA—450/1-74-007 (October,

EE ee eae a een Vee

U.S. Office of Management and Budget, Standard

Metropolitan Statistical Areas (Rev. Ba.

ESSERE. EE Nam to eee ENE

Young, F.G., “Tendencies in Recent American

Road Legislation,” 2 U. Oregon Bulletin 2

CC EE ae

Page

26

23

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 75-1055

RUSSELL TRAIN, Administrator,

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

WASHINGTON AREA BICYCLIST ASSOCIATION, INC., METRO-

POLITAN WASHINGTON COALITION FOR CLEAN AIR, INC.,

BREATHERS FOR THE REDUCTION OF ATMOSPHERIC HAz-

ARDS TO THE ENVIRONMENT,

Petitioners-Intervenors

v.

DISTRICT OF COLUMBIA, ET AL.

On Writ of Certiorari To The United States Court of Appeals

For the District of Columbia Circuit

BRIEF FOR PETITIONERS-INTERVENORS

OPINION BELOW

The opinion of the court of appeals is reported at 521

F, 2d 971.

2

JURISDICTION

The judgment of the court of appeals was entered on

on October 28, 1975 (U.S. Pet. App. B, 126a-128a). The

petition for writ of certiorari was filed on January 26,

1976 and was granted on June 1, 1976. The jurisdiction

of this Court rests upon 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether, upon a State’s failure to adopt an im-

plementation plan meeting the requirements of the Clean

Air Act, the EPA Administrator has authority under

the Act to require the State to reduce air pollution from

sources owned and operated by the State.

2. Whether, if the Clean Air Act grants the EPA

Administrator such statutory authority, the Act is in

this respect a valid exercise of Congress’ power under

the Commerce Clause of the Constitution.

CONSTITUTIONAL PROVISIONS AND

STATUTE INVOLVED

I. The pertinent provisions of the Constitution of the

United States are Article I, Section 8, Clauses 3 and 18;

Article IV, Section 4; Article VI; and the Tenth Amend-

ment.

II. The relevant statute is the Clean Air Act, 42 U.S.C.

§ 1857 et seq; in particular Sections 110 and 113. Perti-

nent sections of the Act and the EPA regulations in

issue are set forth in the Appendix to the Administrator’s

Petition for Certiorari (U.S. Pet. App. A, 59a-125a, and

C, 129a-159a).

STATEMENT

In 1970 Congress amended the Clean Air Act to create

a process for reducing air pollution throughout the United

States to levels which would protect human health and

public welfare.t The Act requires the Administrator of

the Environmental Protection Agency (EPA) to promul-

gate, after public comment, national ambient air quality

standards adequate to protect against adverse health and

welfare effects.’ Section 110 of the Act specifies a process

for establishing State programs to achieve and maintain

the national ambient air quality standards. EPA is re-

quired to review the State programs, submitted to EPA

as “State Implementation Plans,” and to promulgate sub-

stitute Plans by Federal regulation for States whose Plans

are not adequate. Section 110(a) and (c).

This Court has noted on several occasions, that in Sec-

tion 110 Congress prescribed broad objectives to test the

adequacy of State Implementation Plans, leaving to the

States the specific choices as to how air pollution within

their boundaries would be reduced. Train v. Natural

Resources Defense Council, Inc. (NRDC) 421 US. 60,

79 (1975). Union Electric Co. v. EPA, 96 S. Ct. 2518,

2529 (1976). The principal requirement of Section 110

is that the State Implementation Plans achieve air quality

protective of human health (primary ambient air quality

standards) by 1975.

Although Section 110 requires that the State Plans

be submitted by January 1972, EPA required submission

only of partial Plans by this date and granted the States

more time to devise programs to reduce motor vehicle

pollution. Suit was brought to challenge this delay and

EPA was ordered to direct the States to complete their

Plan submissions and also was ordered to promulgate sub-

stitute Plans for States not submitting adequate Plans.

NRDC v. EPA, 475 F.2d 968 (D.C. Cir. 1973).

1 Act of December 31, 1970, P.L. 91-604, 84 Stat. 1676, amend-

ing 42 U.S.C. § 1857 et seq.

2Section 109, 42 U.S.C. § 1857-4. For the purpose of clarity,

Section references to the Act will be used.

q

For various States which failed to submit adequate

Plans EPA proposed substitute Plans and promulgated

Plan regulations late in 1973. Some of the regulations

EPA promulgated imposed duties upon States or their

political subdivisions to manage the use of state-owned

streets and highways by motor vehicles and to establish

a program for emission inspection and maintenance of

automobiles registered by the State for use on its roads.

The States of Arizona, California, Maryland, Pennsyl-

vania, Virginia and the District of Columbia, among

others, petitioned in various U.S. Court of Appeals for

review of EPA’s actions pursuant to Section 307 of the

Act. These States argued first, that § 113 did not au-

thorize EPA to impose duties on States, and second, that

if the Act did authorize such action, the Federal govern-

ment lacked the constitutional power to do so.

The U.S. Court of Appeals for the Third Circuit ruled

first, holding that the Clean Air Act authorizes EPA to

promulgate regulations which imposed program imple-

mentation and enforcement duties on States and that the

Act is constitutional. Pennsylvania v. EPA, 500 F.2d

246 (1974). The Ninth and Fourth Circuits ruled next.

Those courts, in order to avoid a constitutional holding,

interpreted the Act not to grant authority to promulgate

and enforce against States the regulations in issue. Brown

vV. EPA, 521 F.2d 827 (1975). Arizona v. EPA, 521 F.2d

825 (1975). Maryland v. EPA, 530 F.2d 215 (1975).

Subsequently, the District of Columbia Circuit decided

that while the Act did not authorize EPA to require

States to adopt legislation and regulations to establish

pollution control programs, that the Act did authorize

EPA to adopt such regulations itself and to require the

States to enforce them. District of Columbia v. Train,

521 F.2d 971, 994 (1975). The D.C. Circuit then held

that the commerce power authorized the federal govern-

ment to require States to establish exclusive bus lanes

on staie-owned roads, to prohibit States from registering,

for use on state-owned roads, automobiles which do not

conform to prescribed pollution control equipment and

omission standards, and to require States to purchase

buses to augment state-owned bus systems. 521 F.2d at

994. However, the Court further held that the commerce

power did not permit the federal government to require

States to establish and operate programs to inspect motor

vehicles. 521 F.2d at 995.

In the face of the conflicting decisions this Court

granted petitions for certiorari filed by the Common-

wealth of Virginia and by EPA with respect to the cases

involving Arizona, California, the District of Columbia,

Maryland and Virginia.

SUMMARY OF ARGUMENT

The issue in this case is whether the Federal govern-

ment may require a State which owns and operates a

source of air pollution to act to reduce that pollution.’

EPA has reasonably determined that highways used by

motor vehicles are such sources of pollution. Duties im-

posed on a State as the owner and operator of these high-

ways do not threaten the viability of the States as in-

dependent entities in our federal system.

The Clean Air Act, unlike the Fair Labor Standards

Act, which was struck down with respect to the States

in National League of Cities v. Usery, 96 S.Ct. 2465

(1976), does not displace critical State determinations

nor does it apply to a wide range of integral govern-

mental functions of the States. Rather, the Clean Air

8 This brief will not discuss the statutory holdings of the Fourth

and Ninth Circuits. The statutory interpretations by these Courts

conflict with both the plain meaning and the legislative history of

the Clean Air Act. Since the arguments which we assume will] be

made in EPA’s brief will readily demonstrate the errors of the

Courts’ statutory rulings this brief will not duplicate those argu-

ments.

6

Act is designed to encourage free and independent exer-

cise of State choices and the Federal government’s exer-

cise of power is authorized only when a State fails to

choose its own programs adequate to protect public health.

Moreover, the Act preserves the right of the State to

replace federally-promulgated programs at any time with

adequate programs of the State’s own choosing. The Act

and EPA’s actions affect only one State activity—owner-

ship and operation of highways. The limited federal reg-

ulation of this activity does not impair the State’s ability

to carry out its integral governmental functions.

Pollution crossing from one State to another adversely

affects the interests of all the component parts of our

federal system. If a State cannot be required to assume

responsibility for its polluting activities that burden will

be shifted either to the people or to sister States.

A grant of immunity to the States in this case would

require the creation of a vast federal enforcement system

to regulate motor vehicle operators individually. This

result would threaten the nation’s ability to achieve the

important national objective of reducing hazards to health

from air pollution.

ARGUMENT

I

The Clean Air Act Authorizes EPA to Require Road

Owners and Operators to Manage Road Use to Reduce

Pollution

The EPA regulations challenged in this case require

owners and operators of streets and highways (here-

after, roads) first, to require certain vehicles which use

their roads to be inspected for emissions and to be

equipped with pollution control devices, second, to re-

serve one or two lanes of some roads for use by buses,

and third, to increase existing bus fleets. These regula-

7

tions require management of road use in order to re-

duce emissions resulting from the operation of the road.

The road is a source of pollution and the owner/operator

of the source is required to take certain steps to reduce

pollution caused by the operation of that source,

In this section of the brief it will be shown that EPA

has acted reasonably in placing duties on the owner/

operator of a road to reduce pollution caused by road

use. The next section of the brief will address the con-

stitutional issues raised by the fact that the owner/

operator is a State.

When EPA must act to promulgate regulations under

Section 110(c) of the Act, following the failure of a

State to submit an adequate Plan, EPA may require

the owner/operator of a source to abate pollution result-

ing from the source. South Terminal Corp. v. EPA, 504

F.2d 646 (CA 1, 1974). Roads and other facilities pro-

vided for motor vehicles, such as parking lots, are sources

of pollution and their owners and operators may be re-

quired to control that pollution.* The First Circuit has

held that the Act authorizes EPA to require owner /op-

erators of parking facilities to reduce motor vehicle-

related pollution. South Terminal Corp. v. EPA, supra.

504 F.2d at 668. Roads are simply another type of fa-

cility provided for the use of motor vehicles. The D.C.

Circuit agreeu with this principle in D.C. v. Train, 521

F.2d at 989.

Many States, including the Commonwealth of Virginia,

have agreed with EPA that it is appropriate to assign

responsibility to the owner/operator of roads and park-

ing facilities for the pollution resulting from the use of

such facilities. Virginia has adopted a regulation requir-

ing the owner or operator of a road, parking lot, or other

facility which attracts motor vehicle traffic to acquire

* See 38 Fed. Rey. 306382, November 6, 19738.

a permit for construction of a new facility or expansion

of an existing facility. If the air pollution resulting from

the use of the facility would interfere with the ambient

air quality standards, the facility may not be built.’

Federal and State laws routinely require the owner or

operator of a facility to manage its use by others when

such control is needed to protect the health, safety, or

welfare of those users or other people. The Federal

Safety Appliance Act makes any interstate railroad com-

mon carrier liable for a $250 penalty for “hauling or

permitting to be hauled on its line” any car which does

not have the mandatory safety device. 45 U.S.C. §6

(1972) (emphasis added). A railroad is responsible for

equipment violations on the cars of another railroad just

as it is responsible for its own. United States v. Toledo,

Peoria I. Western R. Co., 280 F.Supp. 243 (N.D. Ind.

1968). Moreover, a railroad in its capacity as track

owner is liable for the violations on another company’s

ears (even though it did not haul them) merely because

it permitted the other company to haul them on its line.

United States v. Northwestern Pacific R. Co., 235 F. 965,

968-69 (N.D. Cal. 1916).

Under the Federal Aviation Act, an airline is required

to prevent use of its planes by any passenger who re-

fuses to be searched for dangerous weapons. 49 U.S.C.

§$1511(a) (1974).°

° Regulations for the Control and Abatement of Air Pollution,

§§ 2.706(a) (2), 2.706(d), Virginia State Air Pollution Control

Board, December 1974. Other States which have adopted regula-

tions similar to Virginia’s include Alabama, Connecticut, Florida,

Idaho, Kentucky, Maine, Minnesota, Nebraska, Nevada, New Hamp-

sire, New York, North Carolina, Oregon, West Virginia, and Wis-

consin. See generally, Bureau of National Affairs, Environment

Reporter, State Air Laws.

*“The [FAA] Administrator shall, by regulation, require any

air carrier . .. to refuse to transport—

(1) any person who does not consent to a search of his per-

son ... to determine whether he is unlawfully carrying a

9

In Griggs v. Allegheny County 869 U.S. 84 (1962),

the Supreme Court held that the owner and operator of

an airport is liable for the inverse condemnation of a

residence made unlivable by the noise and vibration of

planes approaching the airport's runways. The County,

as “promoter, owner, and lessor” of the airport, was

responsible for the planes’ behavior because it gave the

planes permission to take off and land and because it

chose the location of the runways. Jd. 87, 89.

State laws have long required the owner or operator

of 2 tavern or a liquor store to prevent a minor from

drinking on his premises, whether the minor brought the

liquor with him or whether an adult purchased it there

for him. An owner or operator who fails to meet these

duties is often criminally liable. See, e.g., Cal. Bus. I.P.

Code § 25658; Ann. Code Md. Art. 2B, §118(a) I(g).

More recently, States have enacted laws to require the

owner or operator of a facility to prohibit or regulate

smoking of tobacco on the premises. For example, Mary-

land laws require building owners to prohibit smoking

in elevators and require bus carriers and operators of

health care facilities to regulate smoking in their facil-

ities.’

dangerous weapon, explosive, or other destructive substance,

or

(2) any property of any person who does not consent to a

search or inspection of such property to determine if it un-

lawfully contains a dangerous weapon, explosive, or other de-

structive substance.”

*“The propretor cf a building containing any elevator whose

use is available to the general public shall prohibit the smoking

of tobacco products in that area.” Ann. Code of Md. Art. 89,

§49C(A) (1975).

“The owner and operator of any interstate bus carrier shall pro-

hibit the smoking of tobacco products while the bus is in public

service.” Ann. Code Md. Art. 78, § 35A(A) (1975).

“The director of every hospital, nursing home, health clinic, and

physician’s office shall devise, implement, and enforce a plan which

10

Thus, it is well established that duties may be placed

on the owner or operator of a facility to regulate the use

of that facility by others. The EPA regulations in issue

in this case do not impose novel duties by regulating

the owner/operator of the road. The regulations are ex-

amples of the broader area of regulatory and other law

imposing responsibility on a property owner when the

owner permits his property to be used by others in a

manner which adversely affects public health or welfare.

The Clean Air Act May Constitutionally Require State

Owners and Operators of Roads to Manage Such Roads

to Reduce Pollution

A. A State is Not Immune from All Regulation Under

the Commerce Clause

Prior to this Court’s decision last term in National

League of Cities v. Usery, 96 S.Ct. 2465 (1976) the ap-

parent rule of law regarding State claims of immunity

from commerce clause regulation was simply stated: the

State was as subject to the regulation as any individual

or corporation. United States v. California 297 U.S. 175

(1936) ; Maryland v. Wirtz 392 U.S. 183 (1968). How-

ever, the decision in Usery, supra, indicates that a ma-

jority of this Court no longer supports this broad rule.

In Usery, a majority of the Court struck down as in-

fringing State sovereignty those portions of the Fair

Labor Standards Act (FLSA)* which applied the Act’s

hour and wage provisions to State employees. The ma-

jority opinion analyzed the specific requirements of the

adequately protects the health of nonsmoking patients through the

regulation of smoking products on the premises.” Ann. Code Md.

Art. 43, § 541 (1975).

§ 29 U.S.C. § 201 et seg. (1976).

11

Act and the impact of those requirements on the States.

The Court held that the provisions of the FLSA which

fixed the minimum wages, maximum hours, and overtime

wages to be paid to State employees, “directly displace

the States’ freedom to structure integral operations in

areas of traditional governmental functions” and thus

are not within the federal commerce power. Usery, 96

S.Ct. at 2474.

However, the Court did not suggest that all federal

regulation of State activities would be viewed as out-

side the commerce power. Rather, the Court expressly

reaffirmed commerce power regulation of State-owned

rail transportation systems originally upheld in United

States v. California, 297 U.S. 175 (1936), although the

reasoning of the California decision was rejected. The

Court also reaffirmed its decision in Fry v. United States,

421 U.S. 542 (1975), upholding a temporary freeze on

the wages of State employees.

The majority opinion in Usery emphasized three fac-

tors: direct displacement of State determinations; the

fact that the determinations in question related to integ-

ral operations of State programs; and the fact that the

State activities were in areas of traditional governmental

functions. In addition a fourth factor was considered in

distinguishing the decision in Fry, supra, although not

discussed in reaching the result in Usery: the importance

of the specific federal interest asserted. Usery 96 S.Ct.

at 2474.

Examination of the specific requirements of the FLSA

discloses the features of that Act which disturbed the

majority in Usery. First, Congress fixed spec’fic levels

for the employment terms covered by the legislation: a

$1.90 an hour minimum wage, increasing to a $2.30 mini-

mum by December 31, 1976;° a maximum regular work

29 U.S.C. §206(b) (1976).

12

week of forty hours; and a minimum overtime wage of

one and one-half times the regular wage.’ The Court

apparently viewed congressional specification of these

terms as directly displacing alternative State choices on

wages and hours. Second, the employment terms covered

by the Act—wages and hours—were central to the em-

ployer-employee relationship. Thus, the integral opera-

tions of the State’s employment function were the subject

of regulation. Third, the Act’s requirements applied to

almost every State employment category. Thus, the Act

directly covered areas of State activity, such as “fire pre-

vention, police protection, sanitation, public health, and

parks and recreation,” which the Court regarded as tra-

ditional governmental functions.

Thus, the FLSA imposed on the States requirements

so specific that the States had no ability to choose among

alternative methods of compliance; the only means of

compliance permitted was strict adherence to the specific

wage and hours terms selected by Congress. Further, the

FLSA addressed the essential terms of the employer-

employee relationship. Finally, the FLSA was essentially

universal in its coverage of State areas of endeavor.

The following sections of this brief demonstrate that

the Clean Air Act’s features are so different from the

FLSA that the intrusive impacts on State interests iden-

tified in Usery are not present in this case. As will be

seen the Clean Air Act does not displace or restrict state

choices; the Act does not impose any regulatory obliga-

tions on the State unless and until it is determined that

the cumulative effects of regulatory programs applicable

to private entities are insufficient to achieve the objec-

tives of the Act; the obligations which may ultimately

be imposed on the State are confined to the State’s activ-

029 U.S.C. § 207(a) (1976).

™ Ibid.

18

ity as owner and operator of roads; finally, the Act per-

mits the State to reduce or avoid even these obligations

if it chooses to shift additional responsibility for pollu-

tion reduction to the private sector.

B. The Clean Air Act Does Not Displace State Choices

Unlike the FLSA, the Clean Air Act does not impose

specific substantive rules of conduct on the States. The

FLSA established wage and hour standards which the

States could not modify or avoid by choosing alternative

programs. When Congress enacted the amendments to

the FLSA which were challenged in Usery, supra, the

States were left with almost no freedom to define their

role in the federal program. The FLSA imposed an equal

burden on all employers, public and private, with no

opportunity for a State employer to shift or alter its

share of the burden. No alternative save massive dis-

missal of State employees was available to a State which

might wish to limit its obligations under the law. Even

if it took such action the State would still be required

to follow the federally specified wage and hour terms

for its remaining employees.

In contrast, the Clean Air Act presumes that the State,

not the federal government will select air pollution rules.

The Act’s recognition of the rights of the States to choose

the means of pollution reduction enables the States to

avoid any federal regulation of State activities and

thereby preserves the ability of the States to structure

their affairs.

Section 110 of the Clean Air Act, under which EPA

has acted to adopt the regulation challenged herein, calls

upon the States to choose the means to reduce air pol-

lution so that the States rather than the federal govern-

ment will control this important program. Broad criteria

are set forth in Section 110(a) (2) (A)-(H) to provide a

framework for EPA assessment of the adequacy of the

14

State’s programs. However, as this Court has noted, this

assessment is a limited one and does not authorize the

federal government to substitute its choices for those

made by the States. Train v, NRDC, 421 U.S. 60, 79

(1975). Union Electric Co. v. Train, 96 S.Ct. 2518, 2529

(1976).

Under Section 110 a State may choose the mix of

emission reduction measures it feels best. If the State’s

program as a whole is adequate to attain the national

air quality standards and the other essentially procedural

criteria of Section 110 are met, EPA must approve the

State’s program:

Under § 110(a) (2), the Agency is required to ap-

prove a state plan which provides for the timely

attainment and subsequent maintenance of ambient

air standards, and which also satisfies that section’s

other general requirements. The Act gives the Agency

no authority to question the wisdom of a State’s

choices of emission limitations if they are part of a

plan which satisfies the standards of § 110(a) (2),

and the Agency may devise and promulgate a specific

plan of its own only if a State fails to submit an

implementation plan which satisfies those standards.

§ 110(c). Thus, so long as the ultimate effect of a

State’s choice of emission limitations is compliance

with the national standards for ambient air, the

State is at liberty to adopt whatever mix of emis-

sion limitations it deems best suited to its particu-

lar situation. Train v. NRDC, supra, 421 US. at

79, (emphasis in original).

As this quotation observes, another feature of the Act

is that EPA is permitted to adopt specific pollution con-

trol rules under Section 110 only when a State has failed

to submit an adequate plan of its own. Section 110(c).

Thus, the Act does not supplant the exercise of State

power. Rather, it provides supplementary federal power

in the event that the State’s exercise of power is in-

adequate.

15

In addition to designing the Clean Air Act to preserve

State choices, Congress gave the States the opportunity

to minimize regulation of their activities by giving the

States the primary responsibility to allocate the emission

reduction burden. The Act thus respects State activities

by allowing the States to place emission limitations on

private sources of pollution in preference to limitations

on publicly-owned pollution sources. For example, while

the use of roads contributes significantly to photochem-

ical oxidant and other pollution, the Act does not force

the States to implement specific programs exclusively di-

rected to road use. First, the State may choose to require

maximum reduction of pollutants from various station-

ary sources,” thereby reducing the need to control emis-

sions resulting from road use.

Second, if reduction of road-use emissions is necessary

to achieve the air quality standards, the Act calls for

the States to choose the programs and methods to reduce

such pollution.

When a State fails to submit an adequate plan EPA

must act, as in this case, to adopt federal regulations

setting forth a pollution control program in that State.

This action, however, does not limit the prerogatives of

the State to choose a mix of control programs different

from EPA’s."* The Act provides that at any time the

12 Hydrocarbon emissions react with other pollutants to form

photochemical oxidants. See State of Texas v. EPA, 499 F.2d 289

(1974) cert. denied, 44 U.S.L.W. 3746, (June 29, 1976). Stationary

sources contribute large amounts of hydrocarbons, causing viola-

tions of the photochemical oxidant air quality standard. For ex-

ample, stationary sources in the San Francisco area are estimated

by the State of California to contribute 48% of total hydrocarbon

emissions in 1977. “The State of California Implementation Plan

for Achieving and Maintaining the National Ambient Air Quality

Standards, Revision 3”, dated June 21, 1973, submitted July 25,

1973 (Table III-2).

18 In fact, as noted below, most of the programs adopted by EPA

in this case were proposed by the States, not chosen independently

by EPA. |

16

States may submit revisions to the currently effective

plans, including EPA promulgated regulations. Section

110(a) (3). Thus, any of the States before this Court

may select programs to substitute for those promulgated

by EPA and, if the minimum requirements of Section 110

are met, EPA must approve the revision. NRDC v. Train,

supra; Union Electric v. Train, supra.

It should also be noted that the Clean Air Act allows

the States to assign partial responsibility for attaining

and maintaining ambient air quality standards to the

federal government. A State may petition EPA to de-

velop federal emission standards for stationary pollution

sources pursuant to Section 111 of the Act.’* While such

federal standards do not necessarily reduce existing emis-

sions they minimize increases in emissions due to expan-

sion of existing sources or construction of new sources

and thus aid the State’s program to attain and maintain

air quality standards. Similarly, the States can petition

EPA for more stringent emissions standards for new

motor vehicles pursuant to Section 202 of the Act.” In

addition, State emission limitations apply to federally-

owned facilities in the State. Section 118.

Just as the Clean Air Act itself respects the States’

right to select programs to reduce air pollution, in every

possible instance EPA has adopted measures selected by

the States themselves. In the Washington, D. C. Metro-

politan Area, the States of Maryland, Virginia and the

District of Columbia proposed specific programs for the

* EPA action on such petitions is subject to judicial review if

the State is not satisfied with EPA’s response. See Oljato Chapter

Vv. Train, 515 F.2d 654, (D.C. Cir. 1975).

18 While specific standards for light-duty vehicles (automobiles

and light trucks) were fixed by Congress through model year 1976,

EPA retains authority to adopt more stringent standards for such

vehicles for later model years and has always possessed discretion

to develop more stringent standards for other significant mobile

sources such as trucks, buses, and motorcycles. Section 202(a).

17

construction of exclusive bus lanes, the expansion of the

bus fleet, and the inspection of motor vehicles. (38 Fed.

Reg. 33703 (December 6, 1973) ) In completing the plan

for the D.C. Area, EPA approved these States’ program

choices. 38 Fed. Reg. 33705-06 (December 6, 1973).

Similarly, for the State of Arizona, EPA adopted pro-

grams proposed by the State for motor vehicle inspection

and maintenance, installation of vehicle pollution control

equipment (“retrofit devices”), and carpooling, 38 Fed.

Reg. 33369-71 (December 3, 1973). In California, the

EPA-promulgated automobile inspection and maintenance

program was proposed by the State in the State Plan

Revision 3** and each of the EPA promulgated vehicle

use (VMT) reduction strategies (express bus lanes,

carpool matching, parking supply management, mass

transit incentives, parking surcharges) was proposed by

one or more of the State/local task forces of the Cali-

fornia Department of Transportation. See 38 Fed. Reg.

81232 et seg. (November 12, 1973) at 31233, 31237,

31241-44. ~

The impact of EPA’s actions on State choices is there-

fore similar to, but less pervasive than the impact of

the wage-freeze program upheld in Fry v. United States,

supra. In most instances the States, not EPA, have chosen

the strategies which require action by the State to reduce

emissions resulting from road use.”

16 Supra, n. 12.

17 The Commonwealth of Virginia implies that EPA chose to

require Virginia to enable the purchase of 475 buses for the Wash-

ington Area. Virginia Petition for Certiorari at 11. This is in-

correct. Virginia itself, along with Maryland and the District of

Columbia, selected the bus purchase strategy and identified the

number of buses to be added in the metropolitan area. 38 Fed.

Reg. 33706 (December 6, 1973).

18

C. The Clean Air Act Does Not Affect Integral Opera-

tions of Traditional State Governmental Functions

In Usery, supra, the Court discussed the State activities

subjected to federal regulation under the FLSA. Because

of the breadth of the FLSA’s definition of “employer,”

virtually all State activities were regulated. Accordingly,

the Court did not have to analyze closely the concept of a

“traditional governmental function.” Rather, the Court’s

opinion simply listed examples of activities regarded as

traditionally governmental: “fire prevention, police pro-

tection, sanitation, public health, and parks and recrea-

tion.” 96 S.Ct. at 2474.

By way of contrary example, the Court reaffirmed the

holding of U.S. v. California, supra, on the ground that

operating a rail transportation system was not a tradi-

tional governmental function. Usery, supra, at 96 S.Ct.

2475, n. 18.

Unlike the FLSA, EPA’s actions under the Clean Air

Act affect only one area of State activity: the ownership

and operation of a highway system designed and man-

aged for use by motor vehicles. Applying the reasoning

in Usery, this State activity cannot be regarded as an

integral part of its governmental activity.

The Court in Usery appears to suggest a test which

asks whether the State’s continued existence as a viable

governing body in the federal system depends on its

ability to make decisions independent of federal dictates

regarding the activity in question. Thus, the Court in

Usery asked whether the wage and hour decisions of a

State employer are “functions essential to separate and

independent existence,” quoting Coyle v. Smith, 221 U.S.

559, 580 (1911) and Lane County v. Oregon, 7 Wall.

71, 76 (1869). Citing Fry v. United States, 421 U.S.

542, 547 (1975), the Court referred to Congressional

action which “impairs the States’ integrity or their

19

ability to function effectively in a federal system... .

Usery, supra, at 96 S.Ct. 2470, 2474.”

When one employs the test of whether an activity is

essential to the preservation of State government, it is

not difficult to justify the result in Usery, once the prin-

ciple is accepted that the federal commerce power is

limited by the existence of such integral activities. It

cannot be disputed that the employment of persons is a

1® No other test emerges from the majority’s discussion in Usery.

However, the use of the word “traditional” to describe the func-

tions protected by te Court might give rise to an argument that

a State activity which is initiated a “significant” number of years

before federal regulation occurs should be immune from such regu-

lation. Such a test should be rejected, for the length of time a

State has engaged in a particular practice does not make the prac-

tice essential to preserve the viability of the State in the federal

system. Moreover, such a test would create a constitutional doc-

trine of “sdverse possession” wherein a State could alter the boun-

daries of the federal commerce power by acting in an area not

presently regulated by Congress and, if Congress failed to enact

legislation regarding the activity within a constitutionally “short”

period of time, thereafter enjoy immunity from federal control of

the activity.

In an era when many emerging technologies receive direct and

indirect support from governmental bodies on all levels such an

approach could cripple the power of the federal government to con-

trol State-supported technologies of the future whose use might

endanger “the well-being of all the component parts of our federal

system,” Usery, supra, at 96 S.Ct. 2474. The development of nu-

clear energy has been promoted by the federal rather than State

governments; but does the authority of the federal government to

regulate State-owned nuclear power plants rest on that incident

of history? Could a few score years of development work at State

universities turn new technological activities, such as “genetic

engineering,” into traditional State governmental functions? Look-

ing back in time one must ask whether actions by States at the

turn of the 20th Century to provide, own, and operate systems of

improved roads which permitted rapid expansion of motor vehicle

use can be deemed integral governmental functions immune to fed-

eral control, simply because of the passage of time before Congress

recognized the need for federal regulation. ‘The answer to these

questions must be no, because mere duration of action is neither

a sufficient nor necessary element of sovereignty.

20

function essential to the preservation of State govern-

ment, for without employees a State, indeed any institu-

tion, could not act. Nor is it difficult to accept that a

State possesses much less control over its employinent

functions when wage and hour terms for State employees

are fixed by another level of government.

In contrast to the result in Usery, it is very difficult

to support a conclusion that State ownership and opera-

tion of highways is a function “essential to [States’]

separate and independent existence.” Usery, supra, at 96

S.Ct. at 2471. Undeniable State interests in the govern-

ance of highway systems are not pertinent since such

interests can be protected by the State in the absence

of State ownership and operation of the highways.”

The State may be interested in the existence of a good

system of highways in order to facilitate commerce with-

in the State. In addition the State has an obvious police

power interest in regulating behavior on highways in the

State. However, State ownership and operation of the

highways is not essential to support these valid State

interests.

” The State is the subject of EPA’s regulations because it is

the owner/operator of the roads, not for any other reason. EPA

does not seek to impose responsibility on the State simply because

the State regulates the use of roads. This distinction between

regulation and ownership was recognized but was misinterpreted

by the Ninth Circuit in Brown v. EPA, supra:

Nor do we believe that it is proper to equate the operation by

a state of a railroad, an economic activity indistinguishable

from that of private parties, with its governance of the use

of highways and automobiles, an exercise of its police power

with respect to commerce. 521 F.2d at 838 (citation omitted,

emphasis in original).

The Ninth Circuit incorrectly assumed that EPA sought to regu-

late the States because of their governance of roads. That is in-

correct; the State as owner, not as regulator of the road is the

subject of EPA’s regulations.

21

For example, other technological systems such as elec-

tric power systems and telephone systems are doubtless

regarded as essential by the State; yet few States choose

to own such systems. Rather, most States regulate the

private owners of such systems through public utility

commissions.

State regulation of highways and their users can also

be accomplished without State ownership of the highways

themselves. It is a commonplace that competent govern-

ments can exercise jurisdiction over all property within

their territory without regard to its ownership. It is not

questioned that the State has a strong and valid interest

in regulating liquor stores and their patrons, yet this

Court did not find State ownership and operation of liquor

stores to be an essential function for purposes of inter-

governmental tax immunity; South Carolina v. United

States, 199 U.S. 437 (1905).

Most States implicitly recognize the distinction be-

tween ownership, operation, and regulation of highways

by dividing these responsibilities between different agen-

cies: typically the state police and department of motor

vehicles for regulatory functions and a State highway

or transportation department for construction and opera-

tion of the highways. See, e.g., Code of Virginia, titles

33, 46.1, and 52.

Before the 20th Century when State ownership and

operation of highway systems began to flourish, State

regulation of roads without ownership was a common

condition. In a continuation of the prevailing condition

in the colonial period, provision of highways in the 18th

and most of the 19th century was an activity carried

on not by the States, but by local authorities using “statute

labor” or by private turnpike corporations.” Between

20 Rae, J. B., The Road and the Car in American Life 12, 26

(MIT Press, Cambridge 1971).

22

1800 and 1850 most significant road-building was under-

taken by private turnpike corporations.” The turnpikes

constructed were noted by this Court as subject to State

regulation even though they were not owned by the

States.**

Until the turn of the 20th century, many States were

prohibited by their constitutions from issuing bonds to

build public works, including highway systems.** The

first State to pass legislation empowering the State to

aid the construction of highways was New Jersey in

1891.** It could hardly be argued that prior to acquiring

and exercising their authority to build and operate high-

ways that the States were less sovereign than they are

today.

EPA’s actions under the Clean Air Act focus on a

particular transportation system—motor vehicles and the

improved highways provided for their use. It is appropri-

ate to examine further the State role in the development

of this distinct and relatively recent technological system.

The emergence of the automobile, the development of

materials suitable for building substantial mileage of

*! Rae, supra, at 18. From 1850 to 1900 little road-building of

any sort occurred due to the pre-eminence of the railroad. /bid.

at 20.

22 Gibbons v. Ogden, 9 Wheat. (21 U.S.) 1, 208 (1824).

28 As late as 1913 the constitutions of the following twenty-one

of the forty-eight States prohibited the issuance of bonds for pub-

lic works: Arizona, Arkansas, Colorado, Florida, Georgia, Indiana,

Louisiana, Michigan, Missouri, Nebraska, Nevada, North Dakota,

Ohio, Oregon, Pennsylvania, South Dakota, Texas, Utah, Virginia,

West Virginia, Wisconsin. U.S. Congress, Joint Committee on

Federal Aid in the Construction of Fost Roads, “Federal Aid

to Good Roads,” Committee Print, April 25, 1913, at 16. See

also, American Public Works Association, History of Public Works

in the United States 1776-1976 at 65-66 (1976).

** Young, F. G., “Tendencies in Recent American Road Legisla-

tion,” 2 U. of Oregon Bulletin 2, 16 (1905). See also, History of

Public Works in the United States, supra, n. 23, at 70.

hard-surfaced roads conducive to motor vehicle use and

the revolutionary changes in State policies from a con-

dition of inaction to one of organized promotion of high-

way construction—all these events occurred during the

three decades between 1890-1920.” In upholding Mary-

land’s law requiring motor vehicle owners to register

their cars and to pay a fee to the State this Court recog-

nized the interdependerce of road building and motor

vehicle use, the recent expansion of State activities to

include building improved roads, and the proprietary in-

terest of the State in the “special facilities” it was pro-

viding the motor vehicle operator :

“The movement of motor vehicles over the high-

ways is attended by constant and serious dangers

to the public, and is also abnormally destructive to

the ways themselves. Their success depends on good

roads the construction and maintenance of which are

exceedingly expensive; and in recent years insistent

demands have been made upon the states for better

facilities, especially by the ever-increasing number

of those who own such vehicles. As is well known,

in order to meet this demand and accommodate the

growing traffic the State of Maryland has built and

is maintaining a system of improved roadways... .

A further evident purpose was to secure some com-

pensation for the use of facilities provided at great

cost from the class for whose needs they are essen-

tial and whose operations over them are peculiarly

injurious.” Hendrick v. Maryland, 235 U.S. 610, 622

(1915) .?°

25 History of Public Works in the United States, supra, n. 23,

at 66-70, 73, 74; Dearing, C. L., American Highway Policy, 45-58

(Brookings, 1942).

26In Kane v. New Jersey, 242 U.S. 160 (1916), Justice Brandeis

emphasized the proprietary basis of the Hendrick decision. Quot-

ing from Hendrick he concluded:

“And it was expressly recognized that the purpose of the

Maryland law ‘was to secure some compensation for the use

24

State courts also recognized the novelty of the State ac-

tivities in the highway area. See, e.g., Saviers v. Smith,

101 Ohio St. 132, 128 N.E. 269, 271 (1920):

“It is within the common knowledge, and the court

will take judicial notice of the entirely new use to

which the roads of the country have been put within

a comparatively few years, as well as of the enorm-

ous number of motor vehicles and the vast traffic

conducted by means of them upon our highways

....+ More and more it becomes one of the important

instrumentalities in in the conduct of the commerce

and trade of the country. Moreover, by common con-

sent there has been a general tendency to the con-

struction of roads of a quality and character vastly

superior to those which were constructed prior to

the coming of the automobile.”

The Court’s discussion of the highway function in Hen-

drick v. Maryland, supra, suggests that highway build-

ing and ownership was recognized as a recent phenomenon

and not viewed as purely governmental. This Court has

never been called upon to decide whether highway owner-

ship was an essential governmental function for purposes

of federal tax immunity. However, the Court has not

held other types of State-owned transportation systems

essential to “safeguard the necessary independence of the

State.” Helvering v. Powers, 293 U.S. 214, 227 (1934)

(street railway).** The State activity found to be non-

of facilities provided at great cost from the class for whose

needs they are essential and whose operations over them are

peculiarly injurious.’” 242 U.S. at 169.

The State of M:ryland and other States have enjoyed the benefits

of their proprietorship of highways for some 60 years. It would

be inappropriate for them to claim that their highway activity is

exclusively governmental and thus immune from federal control

now that the federal government simply seeks to apply to the

States some of the responsibilities of proprietorship.

27 See also, Flint v. Stone Tracy Co., 220 U.S. 107, 172 (1911);

and this Court’s discussion in Usery, supra, at 96 S.Ct. 2475, n. 18,

of the result in United States v. California, supra.

essential in Helvering v. Powers, supra,—operation of a

street railway—was brought about by another state ac-

tivity only slightly less recent: the provision of im-

proved highways for motor vehicles, whose success soon

drove privately-owned street railways into bankruptcy,

compelling public acquisition.”

These considerations demonstrate that the State ac-

tivity to which the federal regulation is directed—owner-

ship and operation of highways—is not integral to the

performance of essential governmental functions of the

States.

D. States Must Be Responsible For Their Polluting

Activities to Protect Strong Interests of the Federal

System

Vehicular air pollution in the United States threatens

public health, crosses State boundaries, and requires a

combination of actions which cannot be accomplished

through exclusive action by one level of government.

A substantial proportion of the population of the United

States is regularly exposed to air pollution levels which

greatly exceed national air quality standards established

to protect public health. Photochemical oxidant pollution

reaching two and three times the primary health stand-

ard is not an uncommon occurrence throughout the

country, including the States before this Court.”

28 History of Public Works in the United States, supra n. 23, at

177.

2° The National Ambient Air Quality Standard for photochemical

oxidants is 160 micrograms per cubic meter (ug/m*) for 1 hour.

40 C.F.R. § 50.9. In 1973, oxidant levels in California exceeded

400, 600 an sometimes 800 ug/m* in a number of areas. In Fair-

fax County, Virginia, oxidant readings of 520 ug/m* were recorded

in 1973. In Phoenix, Arizona oxidant levels reached 450 ug/m*.

In Baltimore, Maryland, levels of 490 ug/m* were recorded and in

the National Capital Area (DC-Md.-Va.) oxidant levels exceeded

800 ug/m* at a Bethesda monitoring station. U.S. EPA, Office of

Air Quality Planning and Standards, Monitoring and Air Quality

Trends Report, 1978, EPA-450/1-74-007 (October 1974), Table D-1.

26

Moreover, pollution generated within one State does

not remain there. Polluted air often travels hundreds of

miles, crossing from the State of origin to sister States

“downwind.” * For example, recent studies show that a

large portion of the pollution burden suffered by Con-

necticut and Massachusetts has traveled from New York

and New Jersey.”

The population of the United States is distributed in a

fashion that places a large percentage of the nation’s

people close to State borders. Over 110 million people

live in major metropolitan areas located within 75 miles

of a State border.** Thus, over 50% of the American

people live in areas where they may be affected by pol-

luted air not only from their own State but also from

neighboring States.

In theory citizens can affect the policies and practices

of their own State regarding air pollution from highway

use by exercising their right to vote. However, such citi-

zens have no representation in neighboring States whose

programs relating to highway use may generate pollu-

tion which affects the health and welfare of such citizens.

Given the evidence of interstate pollution problems avail-

able before and since the passage of the Clean Air

Amendments of 1970, this impact on out-of-State popula-

tions is not merely conjectural.

8° Martinez and Meyer, “Urban-Nonurban Ozone Gradients and

their Significance,” Air Pollution Control Association, Proceedings,

Conference on Ozone/Oxidants—Interactions with the Total Envi-

ronment (1976) at 221.

"Jd. at 225-6. Cleveland, W. S., et al., “The Analysis of the

Ozone Problem in the Northeast United States,” Proceedings, supra,

n. 30, at 109-120.

* Calculated from U.S. Office of Management and Budget,

Standard Metropolitan Statistical Areas (rev. ed. 1975) and U.S.

Department of Commerce, “Standard Metropolitan Statistica] Areas

defined by Office of Management and Budget, January 1, 1974,”

United States Maps, GE-50, No. 55.

27

This situation points up a basic difference between the

impact of non-compliance by a State with the Clean Air

Act and the impact of State non-compliance with the

FLSA considered in Usery. If a State declines to pay the

minimum wages prescribed by the FLSA any injury will

be confined to that State’s employees; neither the resi-

dents of the State in general, nor a sister State nor its

residents will be adversely affected. In fact, the most

likely effect on a sister State will be beneficial, since the

sister State can either reduce its wage scales to the levels

of the “non-complying” State or enjoy a competitive ad-

vantage in recruiting employees by paying higher wages

in any categories where labor demand exceeds supply.

In contrast, a State which fails to control pollution

from motor vehicle use can injure not only its own citi-

zens but also the sister States whose borders its pollu-

tion crosses and the citizens of those States. A “down-

wind” State lying in the path of pollution from a State

which refuses to control highway use may be injured in

several ways. First, if the “downwind” State does noth-

ing, the health and welfare of its citizens may be threat-

ened by that pollution. Second, if the “downwind” State

does act to reduce the pollution it receives, it is being

forced to spend its tax dollars to solve a problem created

in another State. Third, if the “downwind” State relies

on direct action by the federal government to reduce the

pollution it receives, its residents and those of other

States, through their federal income tax payments, will

be forced to contribute to a program to reduce pollution

caused by another State’s activity.

Therefore, unlike the facts in Usery, here the ability

of the federal government to require compliance with the

Act’s requirements is necessary to prevent one State by

its actions from injuring other States. In this case the

assertion of complete immunity by one State diminishes

the rights not only of the federal government, it would

also infringe the rights of sister States.

28

Finally, the impact on the federal government of hav-

ing to directly regulate motor vehicle use in each State

should be examined and compared to the impact on the

States of carrying out the EPA regulations themselves.

The requirements for inspection of vehicles and estab-

lishment of exclusive bus lanes create a need for en-

forcement machinery to check compliance by individual

motorists. The impact on the States of assuming these

functions is small because they have an adequate en-

forcement system already in existence, namely their

motor vehicle registration systems and their State and

local traffic enforcement forces.

To ensure compliance with the inspection program

the State need only add a condition to its existing ve-

hicle registration procedure requiring that inspection of

the vehicle have occurred. With respect to the exclusive

bus lane strategy, existing State traffic forces which

patrol the highways would acquire an added responsibil-

ity of preventing unauthorized use of the lanes by motor-

ists. The States have failed to show that this added re-

sponsibility would impair the ability of these forces to

carry out their existing duties.

If the federal government must establish its own forces

to enforce requirements against each motorist the citi-

zens of this country will either be left with dirty air or a

substantially higher federal tax bill. Unlike the States

the federal government does not have existing enforce-

ment resources. If, as Virginia suggests," a separate

sticker system for inspection programs were required, the

federal government would have to duplicate the resources

of the State’s motor vehicle registration system in each

State where such a program is required. In addition, the

federal government would have to establish duplicative

highway patrol forces to check vehicles for inspection

8° Virginia Petition for Certiorari at 7.

stickers and to enforce bus lane restrictions. Establishing

these forces would involve hiring large numbers of per-

sonnel, patrol cars, office buildings, records systems and

additional sets of government forms for motorists to

complete. All of these resources would duplicate what

the States already possess and would impose a large and

avoidable expense on all taxpayers.

We fear that the result of a finding of State immunity

in this case would not be confined to a waste of taxpay-

ers’ dollars. The impasse which has existed for the past

four years with no action by either the federal or the

States’ governments will continue for the forseeabie fu-

ture if EPA’s actions are found unconstitutional. The

result will be additional years of exposure to harmful

pollution levels for millions of people who need the pro-

tection of their government but witness quarrels instead.

We do not believe that the State’s decisions to own and

operate highways for polluting vehicles are so essential

to their continued “separate and independent existence”

that immunity must be found in the face of the adverse

consequences of such a finding.

The vehicular pollution control programs addressed by

EPA’s regulations in these cases require significant

changes in transportation habits. States have been Te

luctant to make these changes in the past. We believe

that this reluctance will continue unless each State is

convinced that other States with similar pollution prob-

lems will make equal efforts to clean the air. The actions

of the federal government which are challenged in these

cases help to assure each State that the necessary efforts

will be made by all States with severe pollution prob-

lems.

CONCLUSION

Our discussion has shown that the Clean Air Act does

not intrude on the State’s essential sovereign functions.

The Act sets broad public health objectives and does not

30

displace State choices as to how to achieve those objec-

tives. The Act imposes duties on the States only as a last

resort, only where the States operate polluting sources,

and only until the States propose some alternative action

to reduce overall pollution to levels protecting public

health.

The Commonwealth of Virginia has stated, “Power

without responsibility produces an unhealthy situation,

whether in the private or the public sector.” ** We agree.

The States have exercised power to build and operate

roads and have not assumed responsibility for the result-

ing pollution. They have allowed a literally unhealthy

situation to develop; a situation which will continue as

long as the States avoid their responsibility.

This Court has recognized that the Tenth Amendment

is an express declaration of constitutional policies pro-

tecting the State’s rights to continued existence. Fry Vv.

United States, supra. Yet the Tenth Amendment also

recognizes the rights of the people of the United States.

The interests of the people in breathing air which does

not damage their health will be impaired if the States

may not be held responsible for their polluting activities.

The Constitution need not be construed to endorse alle-

gations of State sovereignty which are made at the ex-

pense of the people’s health.

Accordingly, it is suggested that this Court reverse

the decisions of the Ninth and Fourth Circuits below

and reverse in part the decision of the District of Colum-

bia Circuit below.

Respectfully submitted,

Davip G. HAWKINS

Attorney for Petitioners-

September 1976 Intervenors

%4 Virginia Petition for Certiorari at 15.