Memorandum — Pacific Legal Foundation v. Environmental Protection Agency

In the Supreme Court of the Hnited States

-Octoser TERM, 1976

No. 75-1875

PACIFIC LEGAL FOUNDATION, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY

No. 75-1919

PEOPLE OF THE STATE OF CALIFORNIA, ET AL., PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE ENVIRONMENTAL PROTECTION

AGENCY IN OPPOSITION IN NO. 75-1919 AND

SUGGESTING MOOTNESS IN NO. 75-1875

OPINION BELOW

The opinion of the court of appeals (Pet. App. A,

pp. i-xv)! is reported at 534 F. 2d 150.

‘All “Pet. App.” references are to the appendices to the petition

in No. 75-1875.

(1)

2

JURISDICTION

The judgments of the court of appeals were en-

tered on March 29, 1976.2 The petition for a writ of cer-

tiorari in No. 75-1875 was filed on June 26, 1976. The

jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

The petition for a writ of certiorari in No. 75-1919

was filed out of time. The time for filing a petition for a

writ of certiorari was not extended and therefore ex-

pired on June 27, 1976. The petition was filed on June 29,

1976. Accordingly, this Court lacks jurisdiction over that

case. See Toledo Scale Co. v. Computing Scale Co., 261

U.S. 399, 417-418.

STATEMENT

The Clean Air Act, 77 Stat. 392, as amended, 42

U.S.C. (and Supp. V) 1857 ef seq., requires the Adminis-

trator of the Environmental Protection Agency (EPA) tu

promulgate national primary and secondary ambient

air quality standards that will protect the public from

known or anticipated adverse effects of various air pol-

lutants. Each State is primarily responsible for assuring

the quality of the air within its territory and must devise

an implementation plan designed, at a minimum, to

implement, maintain and enforce the national primary

and secondary ambient air quality standards.

Under Section 110(a)(2) of the Act, 42 U.S.C. 1857c-

5(a)(2), the Administrator is required to approve a state

implementation plan if he determines, inter alia, that

“it includes emission limitations, schedules, and time-

tables for compliance with such limitations, and such other

measures as may be necessary to insure attainment and

2A copy of the judgments of the court of appeals are attached

hereto as Exhibit B.

3

maintenance of such primary or secondary standard,

including, but not limited to, land-use and transportation

controls * * *” (Section 110(aX2B), 42 U.S.C. 1857c-

5(aX?)(B)). However, if a State submits a plan that

does not provide for the attainment of any national am-

bient air quality standard, Section 110(c\1)(B) of the Act,

42 U.S.C. (Supp. V) 1857c-S(c\1)(B), requires that

the Administrator promulgate adquate substitute

regulations.

Because the State of California failed to submit those

portions of its implementation plan imposing trans-

portation controls to the Environmental Protection Agency

by the April 15, 1973 deadline,’ the Administrator dis-

approved that aspect of the state plan. 38 Fed. Reg. 16550,

16556, 16564. On October 30, 1973, after public hearings,

the Administrator promulgated substitute regulations to

control emissions from mobile sources of aii pollution in

five of the State’s air quality control regions. 38 Fed. Reg.

31232 et seq.

The Administrator concluded that even if all other

reasonable stationary source and mobile source emission

reduction measures were imposed, the primary ambient

air quality standard for photochemical oxidants would

not be satisfied in these five regions by May 31, 1977,

3The Clean Air Act required each State to submit an implemen-

tation plan to EPA by January 30, 1972; the Administrator was re-

quired to approve or disapprove a state plan within four months ot

its submission. 42 U.S.C. 1857c-S(aX2). The Administrator later

granted any State which was required to impose transportation and

land-use controls until February 15, 1973, to submit those por-

tions of its plan. 36 Fed. Reg. 15486; 37 Fed. Reg. 10844. In Natural

Resources Defense Council, Inc. v. Environmental Protection Agency,

475 F. 2d 968, 970 (C.A.D.C.), the court held that the Act did not

authorize this extension and gave the States until April 15, 1973,

to submit the deferred portions of their plans.

4

the latest date to which he was authorized to extend

California’s attainment deac.ine under Section 110(e) of

the Act, 42 U.S.C. 1857c-5(e). 38 Fed. Reg. 31233, 31235-

31236. Photochemical emissions are larg.'y attributable

to automobiles. 38 Fed. Reg. 7323. The Administrator ©

determined that the only measure by which the

ambient air quality standards might be satisfied by the

mandatory compliance date was by reducing the supply

of gasoline, and thus the number of automobile miles

traveled in the affected regions. He therefore promul-

gated a Gasoline Limitation Regulation which provides

that no later than May 31, 1977, he may “implement a

program * * * limiting the total gallonage of gasoline

delivered to retail outlets in [the regions] to that amount

which, when combusted, will not result in the ambie.

air quality standards being exceeded.” 40 C.F.R. 52.241,

38 Fed. Reg. 31245.4 According to current EPA estimates,

even assuming that non-automobile hydrocarbon emis-

sions are reduced by 50 percent by 1977, severe gasoline

rationing still would be required in four of these five air

quality control regions in order to satisfy the ambient

air quality standard for photochemical oxidants (Pet. App.

C, p. Xxxv)

The State of California, various local government bodies,

and petitioner in No. 75-1875 filed timely petitions to

review the Gasoline Limitation Regulation in the United

States Court of Appeals for the Ninth Circuit. None of the

parties attacked the Administrator's authority to limit

gasoline sales in the exercise of his statutory responsi-

bility to insure that state implementation plans include

emissions limitations and transportation controls neces-

sary to achieve the primary ambient air quality standards.

‘The gasoline sales limitation regulation applies to the Metropo-

litan Los Angeles, San Francisco Bay Area, Sacramento Valley,

San Joaquin Valley, and San Diego Intrastate Air Quality Control

Regions.

5

Indeed, they conceded “that some form of rationing may

ultimately be required * * * if the air quality standards

are to be met” (Pet. App. A, p. x). Rather, they argued

that the Administrator could not impose a regulation

having as great a social and economic impact as the

Gasoline Limitation Regulatian, even if there were no

alternative method for complying with the ambient

air quality standards.

The court of appeals found that imposition of a limita-

tion on gasoline sales in the affected areas was the only

conceivable means for attaining the national photo-

chemical oxidant air quality standard (Pet. App. A, pp. ix-

xii). It therefore held that the Administrator's promul-

gation of this regulation had been neither arbitrary nor

capricious (Pet. App. A, p. xii). It also rejected petitioner's

constitutional objection based solely on the magnitude

of the effect of this exercise of the federal government's

plenary power under the Commerce Clause (Pet. App. A,

p. xiii):

The authority of Congress to regulate air pollution

under the Clean Air Act pursuant to the commerce

clause has previously been upheld in this case.* * *

The authority to regulate pollution carries with

it the power to do so in a manner reasonably cal-

culated to reach that end. Since petitioners do not

deny that gasoline reduction is rationally related to

its stated purpose, they cannot argue that it is beyond

the administrator's authority.

ARGUMENT

On October 12, 1976, John Quarles, Acting Adminis-

trator of the EPA, signed a “Revocation of Gasoline Ra-

tioning Regulations” (Appendix A, infra). That document,

which became effective upon publication in the Fed-

eral Register (41 Fed. Reg. 45565, October 15, 1976), re-

6

vokes in its entirety 40 C.F.R. 52.241, the regulation at

issue in this case. Consequently, the Gasoline Limitation

Regulation no longer exists, and the action is moot. See,

e.g., North Carolina v. Rice, 404 U.S. 244; Bus Employees

v. Wisconsin Board, 340 U.S. 416.

CONCLUSION

The petition for a writ of certiorari in No. 75-1875

should be granted, the judgment of the court of appeals

should be vacated, and the case should be remanded to

that court to dismiss the petition for review as moot.

The petition for a writ of certiorari in No. 75-1919 should

be denied because it is untimely.

Ropert H. Bork,

Solicitor General.

PeTeR R. TAFT,

Assistant Attorney General.

ALFRED T. GHIORZI,

NeiL T. Proto,

MICHAEL D. GRAVES,

Attorneys.

OCTOBER 1976.

DOJ-1976-10

7

APPENDIX A

Title 40— Protection of Environment

CHAPTER I—ENVIRONMENTAL

PROTECTION AGENCY

SUBCHAPTER C—AIR PROGRAMS

PART 52—APPROVAL AND PROMULGATION

OF IMPLEMENTATION PLANS

Revocation of Gasoline Rationing Regulations

Under the Clean Air Act as amended in 1970, State

Implementation Plans (SIP’s) were required to contain

all regulations necessary to attain the health-related

national ambient air quality standards (NAAQS) no later

than mid-1977. To the extent that State-developed SIP

regulations are inadequate to insure such NAAQS

attainment, the Act requires EPA to promulgate the

necessary SIP regulations.

In 1973, EPA was required by Court orders to prom-

ulgate SIP regulations providing for timely attainment of

the NAAQS for carbon monoxide and photochemical

oxidants in certain areas of the United States. In response

to these orders, EPA added to some SIP’s a gasoline

rationing regulation to take effect in 1977. This type

of regulation was imposed only in those areas where

EPA found that all reasonably available measures would

not be adequate to attain the NAAQS by mid-1977.

At the time EPA promulgated the gasoline rationing

regulations and several times since then, EPA has

publicly stated that such regulations would produce

extremely adverse social and economic consequences if

implemented. Since EPA has had no desire to implement

the regulations, EPA has since 1973 proposed and en-

dorsed amendments to the Clean Air Act which would

8

authorize their revocation. Over the last several months,

new Clean Air Act amendments which would have

authorized such a revocation passed both Houses of

Congress (H.R. 10498 and S. 3219). Such authorization

was retained in the compromise amendments approved

by the House and Senate Conferees. On October 1,

however, Congress adjourned without completing action

on the new Clean Air Act amendments.

Since it appears quite unlikely that Congress will

enact new legislation before implementation of the

gasoline rationing regulations is scheduled to begin

(certain reports are to be filed by March 1977 and

full implementation is to occur in May 1977), and since

EPA has no intention of implementing the regulations,

I believe that EPA should revoke them now.

| realize that this revocation will render the affected

SIP’s defective as a legal matter, since such SIP’s

will no longer contain regulations which provide for

NAAQS attainment. I am convinced, however, that

whatever benefits may be gained from keeping a tech-

nically legal SIP on the books by retaining the gasoline

rationing regulations are outweighed by the seriously

disruptive social and economic consequences of such

regulations.

This revocation should not be construed as indicating

that EPA will accept SIP’s which do not insure at-

tainment of the health-related NAAQS on grounds of

cost. In fact, EPA is currently in the process of notifying

many States that their presently-inadequate SIP’s must

soon be revised to include all achievable measures

necessary to attain the NAAQS as expeditiously as

practicable. Onerous, expensive, and/or “technology-

forcing” requirements must be imposed wherever neces-

sary. EPA’s action today is thus a special case; it is

being taken only because of the extraordinarily disruptive

9

nature of the gasoline rationing regulations and because

both Houses of Congress have affirmatively expressed

their desire that such regulations not be implemented.

This revocation is effective [date of Federal Register

publication]. (Sections 110 and 301 of the Clean Air

Act, as amended, 42 U.S.C. 1857c-5, 1857g.)

/s/John Quarles

Acting Administrator

Dated: October 12, 1976

10

Part 52 of Chapter I, Title 40 of the Code of Federal

Regulations is amended as follows:

Subpart F - California

§52.241 [Revoked]

l. Section 52.241 is revoked.

Subpart G - Colorado

§$52.330 [Revoked]

2. Section 52.330 is revoked.

Subpart V - Maryland

§52.1110 [Revoked]

3. Section 52.1110 is revoked.

Subpart FF - New Jersey

§52.1592 [Revoked]

4. Section 52.1592 is revoked.

Subpart SS - Texas

§52.2293 [Revoked]

5. Section 52.2293 is revoked.

11

APPENDIX B

UNITED STATES COURT.OF APPEALS

For THE NINTH CIRCUIT

No. 73-3262

City oF SANTA Rosa, CITY OF PETALUMA,

MUNICIPAL CORPORATIONS AND CHARTER CITIES,

City OF CLOVERDALE, CITY OF HEALDSBURG, CITY OF

SEBASTOPOL AND CITY OF SONOMA, MUNICIPAL

CORPORATIONS, PETITIONERS,

Vv.

Russet, E. TRAIN, ADMINISTRATOR AND

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, RESPONDENTS.

JUDGMENT

Upon Petition to Review an order of the Environmental

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This Cause came on to be heard on the Transcript of

the Record from the Environmental Protection Agency

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On Consideration Whereof, it is now here ordered and

adjudged by this Court, that the Petition to Review the

decision of the said Environmental Protection Agency in

this Cause be and hereby is denied.

Filed and entered: __March 29, 1976

12

UNITED STATES COURT OF APPEALS

For THE NINTH CIRCUIT

No. 73-3306

RONALD REAGAN, GOVERNOR OF THE STATE OF

CALIFORNIA; AND THE CALIFORNIA DEPARTMENT OF

TRANSPORTATION, PETITIONER,

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT.

JUDGMENT

Upon Petition to Review an order of the Environmental

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the Record from the Environmental Protection Agency

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On Consideration Whereof, it is now here ordered and

adjudged by this Court, that the Petition to Review the

decision of the said Environmental Protection Agency in

this Cause be and hereby is denied.

-Filed and entered: March 29, 1976

13

UNITED STATES COURT OF APPEALS

For THE NINTH CIRCUIT

No. 73-3343

PaciFic LEGAL FOUNDATION, A CALIFORNIA CORPORATION,

PETITIONER,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

JUDGMENT

Upon Petition to Review an order of the Environ-

Mental Protection Agency ...........cccccccssrscsrsrsreeereceeeeeeeees

This Cause came on to be heard on the Transcript

of the Record from the Environmental Protection Agency

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On Consideration Whereof, it is now here ordered and

adjudged by this Court, that the Petition to Review

the decision of the Said Environmental Protection Agency

in this Cause be, and hereby is denied.

Filed and entered: March 29, 1976