intervenors reply brief — Train v. District of Columbia

MICHAEL ROCAK, . CCM

IN THE i onal

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

REPLY BRIEF FOR PETITIONERS-INTERVENORS

DAvw G. HAWKINS

Attorney for Petitioners-Intervenors

Mailing Address:

NATURAL RESOURCES DEFENSE

COUNCIL, INC.

917 15th Street, N.W.

Of Counsel: Washington, D.C. 20005

JoEL D. JosEPH (202) 737-5000

Watergate Office Building, Suite 850

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 338-5560

— ä —— — —

WILSON - EPES PRINTING Co.. INC. - RE 7-6O02 - WASHINGTON. D. C. 20001

Page

r r / / x ( - 1

I. EPA's Basis for Regulation is Ownership of

Highways by States, and Not Their Failure to

Regulate Private Parties er 1

II. EPA’s Conclusion That a Highway is a Source

of Pollution is Reason abe 5

III. The Public’s Use of the States’ Highways Does

Not Eliminate the Responsibility of the States

as Owners of the Highway⸗ÿƷ, cc 10

IV. EPA’s Regulations Do Not Require States to

Enact Laws and Adopt Regulations .................... 13

V. Recognizing the Responsibility of States for

Highway Air Pollution is Necessary to Protect

r 14

RESIS ETS Ee en / // ( ony LTO Te 15

CITATIONS

Cases:

Burton v. Wilmington Parking Authority, 365 U.S.

rr 14, 15

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

ccc 4, 13, 14

Friends of the Earth v. Carey, 535 F.2d 165 (2d

rr 2

Friends of the Earth v. Carey, 74 Civ. 4500 (9

E. R. C. 1007) (S. D. N. V., July 13, 1976) 2

Friends of the Earth v. EPA, 499 F.2d 1118 (2d

X — 2

Georgia v. Tennessee Copper Co., 206 U.S. 230

1 9

Griggs v. Allegheny County, 369 U.S. 84 (1962). 6, 8

Illinois v. City of Milwaukee, 400 U.S. 91 (1972) 7

Missouri v. Illinois, 180 U.S. 208 (1901) 7,9

National League of Cities v. n 96 S.Ct. 2465

EE a renee 14

II

CITATIONS—Continued

Natural Resources Defense Council v. EPA, 478

Pf En

New York v. New Jersey, 256 U.S. 296 (1921) .......

North Dakota v. Minnesota, 263 U.S. 365 (1923) ..

Steward Machine Co. v. Davis, 301 U.S. 548

„

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

Statutes and Regulations:

Clean Air Amendments of 1970, 84 Stat. 1676, 42

U.S.C. 1857 et se.:

11 — 2

r .

Section 113 . m ae

Federal Aid Highway Act. 23 U.S.C. 8 109 ()

. / x emer res

I. ..—— SEESee — —

ir.

Miscellaneous:

38 Fed. Reg. 30632-3383, November 6, 1978

65 C. J. S. Negligence 392. .

13

14

*

IN TRE

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

| REPLY BRIEF FOR PETITIONERS-INTERVENORS

ARGUMENT

I. EPA’s Basis for Regulation is Ownership of Highways

by States, and Not Their Failure to Regulate Private

Parties.

The States of Arizona, California and Maryland, the

Commonwealth of Virginia and the District of Columbia

2

(hereafter “the States”) ask this Court to hold invalid

regulations of the United States Environmental Protec-

tion Agency (EPA) which require the States to take

certain actions to reduce air pollution resulting from the

use of motor vehicles on highways owned and operated

by the States. However, the States concede that Congress

intended, in the Clean Air Act, that State-owned sources

of pollution be regulated in the same manner as private

sources of pollution’ and the States do not question the

constitutionality of this decision by Congress. Thus, the

basic issues in this litigation are whether EPA’s deter-

mination that a highway is a source of air pollution is

a reasonable interpretation of the Clean Air Act and

whether the Act, so interpreted, offends the Constitution.“

Brief for the States at 34, 38 n.61.

2 The City of New York has submitted an amicus curiae brief in

this case which suggests that a case now pending in the Second

Circuit involving the City of New York bears a relationship to the

instant case. The suggestion is wrong.

In the Second Circuit case, citizen plaintiffs sued, pursuant to

§ 304 of the Clean Air Act, to enforce a transportation control plan

adopted by the State, approved by the Administrator, and ratified by

the court. Friends of the Earth v. EPA, 499 F.2d 1118 (2d Cir.

1974). The Second Circuit has upheld plaintiffs’ claim. Friends of

the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976). On remand from

the 1976 decision, the District Court suggested that there may be

constitutional infirmities to enforcement as ordered by the Second

Circuit, and, to avoid such constitutional issues, in effect reversed

the Second Circuit’s interpretation of the Clean Air Act. Friends of

the Earth v. Carey, —— F. Supp. ——, 9 E.R.C. 1007 (S.D.N.Y.

1976). Plaintiffs thereupon, in August 1976, petitioned for a writ

of mandamus and moved for summary reversal. The Second Circuit

by order in September, 1976, took the matter under advisement,

received briefs from all parties, and is now considering its decision.

The City’s amicus brief submitted in this Court is virtually

identical to its main brief in the matter now pending in the Second

Circuit. That explains why the amicus brief is, for the most part,

unresponsive to the issues in this case. (The Natural Resources

Defense Council is a plaintiff in the Second Circuit case and could,

on request, provide copies of its briefs responding to the City’s

brief.) The cases are wholly dissimilar. First, in the Second Cir-

cuit case, EPA merely approved the State’s own plan pursuant

The States avoid a direct argument that it is not rea-

sonable to regard a highway as a source of air pollution.

Rather, the States simply assert that EPA’s conclusion

is “an empty fiction.” * Inspired by the strength of this

assertion the States replace EPA’s stated basis for regu-

lation with a principle of their own formulation: “the

failure of the States to enact and enforce laws and regu-

lations to reduce air pollution from privately owned

motor vehicles is the ‘pollution creating activity’ subject

to federal regulation.“ Then the States proceed to at-

tack their own formula rather than EPA's stated ra-

tionale. This joust with a straw man does not aid the

Court in resolving this case.

The facts belie the States’ claim that EPA’s rationale

is a fiction. The statement that a highway is a source

of pollution is no post hoc invention of counsel. It was a

conclusion reached by EPA during its rulemaking process

to Section 110(a) and did not promulgate any regulations under

Section 110(c) requiring the State to act. Second, in the cases

before this Court, States, not political subdivisions, are challenging

EPA’s authority. In the Second Circuit case the State of New

York has not only refused to challenge the constitutionality of the

plan or its enforcement (its own plan, in any event), it has fur-

ther stated that it will follow the provisions of the Clean Air Act

by complying with its existing plan under court order or a revised

plan. The City, however, disagrees with the State of New York’s

position and the State’s plan. Thus, the Second Circuit case raises

issues fundamentally different from the instant case.

The City’s brief also misleads the Court in asserting that imple-

mentation of the plan would be a drain on the City’s treasury. (City

Br. at 2, 3). The City has never supported this claim with facts nor

can it do so because many of the plan’s strategies are self-supporting

and others actually generate revenues. For example, the strategy

to toll those bridges entering Manhattan which are still untolled

was designed to raise net revenues close to $200 million annually.

For another example, the strategy requiring enforcement of traffic

regulations also is a revenue raiser through ticketing of illegally

parked cars.

Brief for the States at 57.

* Ibid. See also, Id. at 16, 38.

4

and explicitly stated when the regulations in question

were promulgated (38 Fed. Reg. 30632-30633, November

6, 1973). As noted in the Intervenors’ opening brief in

this case, a number of States themselves, including the

Commonwealth of Virginia, recognize that a highway is

a source of air pollution.“

In addition, EPA’s actions demonstrate that the

Agency has not lighted upon the States’ ownership of

highways as a device to force the States to regulate pri-

vate polluters. If, as the States assert, EPA’s real in-

tent in promulgating implementation plan regulations

were to “commandeer the police power of the States“

whenever a State failed to regulate a private source of

pollution, one would expect to find duties imposed on the

States in EPA regulations covering sources of pollution

other than highways. However, in all such instances

EPA’s regulations apply to the source owner and do not

require action by the State. For example, see EPA’s

regulations applicable to gasoline stations and dry clean-

ing plants in Maryland [40 CFR 52.1087, 52.1088; (A.

665-668) ].“ Only when the State owns the source of

pollution, as in the case of highways, have EPA’s regu-

lations required action by the State. Thus, EPA’s posi-

tion that the highway is a source of pollution is no fiction

and it deserves a fair consideration on the merits.’

See Brief for the Federal Parties at 23 (A. 435) for the text of

this statement.

o Brief for Petitioners-Intervenors at 7-8 n. 5.

Brief for the States at 28.

® See also EPA regulations applicable to smelting operations in

various States; e.g., Idaho: 40 CFR 52.676.

„In the opinions below in this litigation only the D.C. Circuit

dealt on the merits with EPA’s determination that a highway is a

source of pollution and that court agreed with EPA’s determina-

tion. District of Columbia v. Train, 521 F.2d 971, 989 (D.C. Cir.

1975).

EPA’s basis for regulation is not a theory that “knows

no rational bounds” nor a theory that would permit the

federal government to require State regulation of private

stationary sources of pollution. EPA argues only that

sources owned by the State may be required to be con-

trolled by the State. State-owned highways are one such

source. Private stationary sources are not such sources

and, in fact, as just noted, when private stationary

sources require control EPA has regulated them and has

not required State action.

II. EPA’s Conclusion That a Highway is a Source of

Pollution is Reasonable.

The State’s position is, in essence, that the federal

government is powerless to hold the States responsible

in any way for air pollution resulting from the use of

highways owned by the States. However, the States cite

no decision of this Court nor any other authority sup-

porting the proposition that it is unreasonable to regard

a highway as a source of air pollution or to hold the

owner of a highway responsible for the pollution result-

ing from its use.“

1° Brief for the States at 44.

"The States’ arguments concerning congressional intent under

the Clean Air Act are reducible to the claim that Congress could

not have intended that States be held responsible for highway

pollution because there are no explicit statements in the legislative

history accompanying the 1970 Amendments that EPA may take

enforcement actions against State officials. This claim is without

merit. Congress explicitly provided EPA with authority to promul-

gate regulations reducing pollution from sources in States with

inadequate plans. Section 110(c). By its terms Section 113 au-

thorizes enforcement actions against the owners of sources which

fail to comply with such regulations. The States do not cite any

provision of the Act nor any item of legislative history which

suggests that it is unreasonable to regard highways as sources

of pollution. There is, however, ample legislative history explicitly

recognizing the need to regulate highway use in order to attain

ambient air quality standards. See Brief for the Federal Parties

at 32-33 n.26. Moreover, in highway legislation enacted the same

6

A highway is a piece of property. A tenet of black

letter law is that when an owner of property invites

third persons to engage in certain activities on his prop-

erty he may be held responsible for the harmful effects

of such activities.“ EPA's conclusion that a highway

owner may be held responsible for the pollution of those

using the highway simply recognizes this principle. In

their opening briefs EPA and the Intervenors cited a

number of decisions by this Court and other courts which

upheld this principle.“ The State’s contention that these

authorities are distinguishable because the extent of the

Commerce Power was not in issue, is misplaced. EPA

and the Intervenors rely on these authorities to support

the proposition that governmental entities which own

properties used by third persons may be held responsible

for damages resulting from the use. These authorities

clearly support this principle and thus confirm the rea-

sonableness of holding the highway owner responsible for

reducing pollution resulting from highway use.

In commenting on Griggs v. Allegheny County, 369

U.S. 84 (1962), the States ignore the fact that that

day as the Clean Air Amendments of 1970, Congress explicitly recog-

nized that highway operation could conflict with the mandates of

the Clean Air Act and it directed the Secretary of Transportation

to promulgate regulations to insure that highways constructed

with federal aid would be consistent with air quality implementa-

tion plans under the Clean Air Act. 23 U.S.C. 5 109 (j). Finally,

Congress did act after EPA promulgated its regulations herein to

remove EPA's authority to impose some transportation controls, to

wit, surcharges on parking. However, as EPA’s Brief points out,

Congress deliberately refrained from repealing EPA’s authority

for its regulations requiring actions by the States as owners of

highways. See Brief for the Federal Parties at 33-36.

12 See, e.g., 65 C.J.S. Negligence §92 at p. 1044.

1 Brief for the Federal Parties at 25-26. Brief for Petitioners-

Intervenors at 7-10.

1% Brief for the States at 43.

7

case held a governmental entity responsible for the noise

pollution caused by third parties’ use of a government-

owned transportation facility. Under the rule of Griggs

persons living near a highway would be able to hold the

highway owner responsible for injury caused by noise

and air pollution resulting from use of the highway.

Similarly, the States misrepresent the import of Illi-

nois v. City of Milwaukee, 406 U.S. 91 (1972). “ In

declining to accept that case on the merits under its

original jurisdiction, this Court of necessity found that

a cause of action was available in federal district court

against a governmental body which discharged the sew-

age pollution of the public to the detriment of a neigh-

boring State. Contrary to the States’ assertion, this

Court did not “treat only the narrow federal jurisdic-

tional issue. The opinion in City of Milwaukee also

discusses at some length federal common law as the rule

of decision for cases which are brought. Significantly,

at the close of its opinion this Court explicitly rejected

the contention that a State or municipality might assert

sovereign immunity to avoid responsibility for its dis-

charge of the public’s sewage: “While the kind of equi-

table relief to be accorded lies in the discretion of the

chancellor [citation omitted], a State that causes a public

nuisance is suable in this Court.. 406 U.S. at 108

n.10.

In City of Milwaukee this Court referred to the line

of cases beginning with Missouri v. Illinois, 180 U.S. 208

(1901), which established the rule that a government

may be held responsible for the sewage pollution result-

ing from the use of government facilities by members

of the public. In a subsequent case involving sewage dis-

charges by the State of New Jersey, this Court confirmed

15 Jd. at 43-44.

1% Id. at 43.

8

the power of the federal government to require New

Jersey to treat its sewage prior to discharge. New York

v. New Jersey, 256 U.S. 296 (1921). In this case the

federal government intervened on its own behalf in an

original suit brought by New York against New Jersey.

A stipulation obligating the State of New Jersey, through

an authorized agency, to treat its sewage was entered

into by the United States and the New Jersey agency.

It was argued that the stipulation was invalid for want

of power on the part of the United States. This Court

held that under the “large powers of the Government

over navigation and commerce” as well as under its prop-

erty power, the federal government had the power to

sue the State of New Jersey and to settle that suit by a

stipulation requiring New Jersey to reduce its sewage

pollution. 256 U.S. at 308.

There is no distinction between the water pollution dis-

charges from State sewers and the air pollution dis-

charges from State highways. In each case the State

constructs a facility which has the effect of collecting,

along an artificial artery, pollutants generated by indi-

vidual members of the public. In each case it is the con-

centration of many sources of pollution within a public

facility which creates a pollution problem of greater

severity. This latter point applies with particular

strength to highways. A highway, unlike a sewer, is not

simply a channel for pollution which would have occurred

anyway. A highway and the system of highways are

the necessary preconditions to the very existence of our

present motor vehicle pollution problems. The provision

of highways by the States has made it possible for the

number of vehicles and the frequency of their use to

grow to a point where the total volume of pollutants

generated has become a hazard to public health.

Thus, we believe that the decisions of this Court in

Griggs v. Allegheny County, supra, and in the line of

sewage discharge cases beginning with Missouri v. Illi-

nois, supra, clearly support the propriety under the Clean

Air Act and under the Constitution of EPA’s position

that a highway is a source of pollution and that the

owner of the highway may be held responsible for reduc-

ing the pollution resulting from its use.

If, on the contrary, this Court were to hold that con-

siderations of State sovereignty prevented the federal

government from imposing duties on the States on this

basis, then the vitality of Missouri y. Illinois, supra, and

subsequent cases would be put in serious question. If

the federal government is prevented by State sovereignty

from holding a State responsible for the polluting effects

of State facilities, then how could one State overcome

the same claim of sovereignty in an *riginal suit in this

Court against an adjacent polluting tate?

To hold that the federal government may not require

a State to reduce pollution from its highways would

surely mean that one State could not seek relief in this

Court against an adjacent State to protect its citizens

from injury due to pollution generated on the highways

of that adjacent State. Yet this Court has frequently

recognized that among the sovereign rights which re-

mained with each State after it joined the union was

the right to protect its air and water from unreasonable

pollution by the acts of persons beyond its control,

whether such persons be private parties, Georgia v. Ten-

nessee Copper Co., 206 U.S. 230, 237-238 (1907), or

sister States. Missouri v. Illinois, supra, 180 U.S. at 241;

North Dakota v. Minnesota, 263 U.S. 365, 373-374

(1923).

This case involves claims of competing rights of a

sovereign nature just as it would if it were a suit be-

tween two States where one State was seeking to require

a sister State to reduce pollution generated by its high-

ways. If this Court concludes that the rights claimed by

10

the States in this case are superior to thuse claimed by

the federal government then the right of each State to

generate air pollution will be elevated to a position su-

perior to that of the right of any State (or the union

of States) to be free from harmful levels of air pollu-

tion. We believe this result would be an inappropriate

interpretation of a Constitution whose purpose is, in part,

to “promote the general Welfare.”

III. The Public’s Use of the States’ Highways Does Not

Eliminate the Responsibility of the States as Owners

of the Highways.

The States argue that EPA can regulate automobile

drivers directly and thus it is unnecessary and improper

to regulate the States as the owners of the highway fa-

cilities which the drivers use. However, to accept this

principle would immunize a great many actions by States

from regulation by Congress under the Commerce Power.

The States’ apparent position is that where, in any State

facility, acts by members of the public contribute to the

burden on commerce, that Congress may proceed only

against the individuals and cannot impose duties on the

State as the owner of the facility. Thus, a State could

presumably own and operate a public race course for

automobiles, motorcycles, snowmobiles, etc., and if fed-

eral air or noise pollution limits were exceeded the fed-

eral government’s only remedy would be to regulate the

individual users of the course. Similarly, States could

locate airports in areas where flights would interfere

with flight patterns supervised by the federal government

with complete State immunity from federal regulation.

A decision by a State to purchase land and invite its

citizens to use that land to burn their refuse would ap-

parently not be subject to regulation by the federal gov-

ernment.’ One can think of many other examples of

17 As a corollary to this line of reasoning a sister State which

objected to such a trash-burning “park” located just within the

11

facilities on whose owner, whether a State or a private

party, the government ought to be able to impose duties

but could not under the State’s line of argument: for

example, bars serving alcoholic beverages; gambling es-

tablishments; parks for mobile homes (and their at-

tendant sewage) ; hunting and target-shooting areas. We

believe the States would reject any claims by a private

proprietor of any of these facilities that it was unrea-

sonable for a State to regulate him because the State

could regulate his patrons instead. The argument possess

no greater vitality simply because the State is the owner.

In addition, the States’ argument in this vein is ob-

jectionable because of their very direct role as builders

and owners of highways in determining how many vehi-

cles are able to operate simultaneously within their

borders. If the federal government were to regulate each

vehicle directly the magnitude of its task and the re-

sources it must devote to that task would be determined

principally by the number of vehicles it would be re-

quired to regulate. As the owners of highways the States

are free to undertake projects which can significantly

increase the number of vehicles operating in given areas.

For example, many States, including Virginia and the

District of Columbia, make some or all lanes of major

arterial highways in metropolitan areas one-way during

“rush aours” in order to permit more commuter automo-

biles to enter and leave the city each day. Over longer

periods of time States permit and encourage increases

in the number of motor vehicles by building major new

highways. Thus, the State governments by these actions

can cause increases in traffic and thereby significantly

increase the administrative burden and cost of regulating

that traffic. It is inappropriate for the States to insist

borders of an adjacent State presumably could not seek relief

against the adjacent State in this Court because of the availability

of the remedy of suits against each of the individual trash-burners.

12

cha DPA ohuuld be aooigucd the busta of svgulating

motor vehicle traffic while at the same time insisting on

their rights to increase that traffic by building new high-

ways or devoting additional lanes of existing highways

to commuter automobiles. The States, as the level of

government which makes highway construction and oper-

ation decisions which may increase traffic, are properly

assigned the responsibility to manage that traffic to re-

duce pollution.

Regulatory agencies routinely must regulate pollution

sources where actions by large numbers of individuals

contribute to the total pollution generated. However, the

agencies are not limited to regulation of the individuals;

rather they may impose responsibility on the source

owner. For example, an integrated steel mill may con-

tain thousands of workers individually or collectively

operating a variety of polluting processes. The institu-

tion which owns the mill, however, is not exempt from

regulation. A highway system fit for intensive use by

motor vehicles is a sophisticated technological develop-

ment which would not exist in the absence of a coordi-

nating institution responsible for its construction and

management.“ If a private body were the highway

owner and operator there is no doubt that regulatory

agencies would properly impose pollution abatement

duties on that body. Instead, the States have established

themselves as the institutional owners of highways. How-

ever, this choice by the States to fill the essential role

of highway owner and manager should not cause the

federal government to lose its authority to impose duties

on the owner of the source. As Intervenors have shown

in their opening brief“ the States have chosen to engage

Prior to State construction and management of highways, the

road “networks” were acknowledged to be of poor quality and not

systematically laid out. See the brief history set forth in Brief

for Petitioners-Intervenors at 19-25.

1° Brief for Petitioners-Intervenors at 21-25.

13

iu the activity of owning highways and they may choose

to withdraw from this activity if they wish. See Steward

Machine Co. v. Davis, 301 U.S. 548 (1937). However,

while they remain the highway owners the States may

not properly insist that the federal government’s power

to reduce air pollution from highways is confined to

regulation of individual vehicles.

IV. EPA’s Regulations Do Not Require States to Enact

Laws and Adopt Regulations.

The States argue that EPA is directly coercing the

States into passing legislation and adopting regulations.

However, EPA has conceded that its regulations cannot

require performance of such actions.” Accordingly, the

States contention that EPA at one time took a different

position is not relevant. The federal government’s con-

cession has eliminated any controversy which may have

existed.

However, the States argue that they must legislate and

adopt regulations simply to implement EPA’s regula-

tions. To the extent this assertion is correct, it does not

render EPA’s regulations unconstitutional. First, u 'r

the Clean Air Act and the Supremacy Clause, promulga-

tion of substantive regulations by EPA under Section

110(c) of the Clean Air Act provides the States with

legal authority to enforce those regulations against indi-

viduals.” Second, while in some instances appropriations

legislation may be necessary to provide specific State

agencies with the authority under State law to expend

funds for particular programs, similar appropriations

legislation might be equally necessary to permit a State

20 See EPA Pet. No. 75-909 at 17 n.15 and Brief for the Federal

Parties at 20 n.14, 54.

21 See Natural Resources Defense Council v. EPA, 478 F.2d 875,

888 (Ist Cir., 1973), Accord, District of Columbia v. Train, 521 F.2d

971, 984. (D.C. Cir. 1975).

14

agency to purchase pollution control equipment for a

State incinerator or to purchase safety couplers for State

railroad cars.** Such legislation is auxiliary or incidental

to the discharge by the State of its duties to reduce its

pollution.“ If the duties are properly imposed they do

not become constitutionally infirm because they require

an assignment of State funds to particular agencies,

which under State law may only be accomplished by a

legislative act.

V. Recognizing the Responsibility of States for Highway

Air Pollution is Necessary to Protect Individual Rights.

The States argue that EPA, not the States, should be

required to carry out programs to reduce highway air

pollution. They do not contend that they cannot reduce

highway air pollution nor that EPA can reduce highway

air pollution more effectively or more rapidly than the

States could. Rather it is the States’ position that they

have the right to do nothing to reduce highway air pollu-

tion and that they intend to insist on this right regard-

less of the impacts on the health of their citizens. We

do not believe that the States, as owners of the highways,

have the right to do nothing.

When important human rights are in need of protec-

tion this Court has held States responsible for the harm-

ful actions of private persons using State facilities and

has refused to accept the argument that the State has

»The States have conceded that EPA may impose the former

duties and this Court in National League of Cities v. Usery, 96

S.Ct. 2465 (1976) explicitly reaffirmed the latter duty, first an-

nounced in United States v. California, 297 U.S. 175 (1936).

28 District of Columbia v. Train, supra, n.21, 521 F.2d at 987. This

Court recognized that a State agency might have to adopt regula-

tions applicable to a private tenant of a State parking garage in

order to discharge a State duty to provide equal protection of the

laws. Burton v. Wilmington Parking Authority, 365 U.S. 715, 720,

725 (1961).

15

no duty to act affirmatively to prevent such harmful

action. Burton v. Wilmington Parking Authority, 365

U.S. 715, 725 (1961). Like the individual rights pro-

tected in Burton, the right to a life free from suffering

caused by air pollution is an important right. A person

suffering from emphysema or lung cancer experiences a

diminished life. We do not argue that the States have

a constitutional obligation to prevent such a diminution

of life by air pollution. Rather, we argue that the right

to health is important enough that it outweighs on bal-

ance State claims of sovereign rights to do nothing in

the face of threats to health caused by air pollution from

highways which the States own and operate.

CONCLUSION

For the foregoing reasons, the judgments of the Court

of Appeals — Ninth and Fourth Cireuits should be

reversed and the judgment of the Court of Appeals for

the Distriet of Columbia Cireuit should be reversed inso-

far as it prohibits EPA from requiring a State to imple-

ment necessary transportation control measures, and

affirmed in all other respects.

Respectfully submitted,

Davip G. HAWKINS

Attorney for Petitioners-Intervenors

January 1977