# intervenors brief — Train v. District of Columbia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** intervenors brief
- **Published:** January 1, 1976
- **Citation:** 426 U.S. 904

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2177%3A3. Public record. Not legal advice.