Reply Brief — Pacific Legal Foundation v. Environmental Protection Agency

Pacteio Laat, Fouwpanion, Petitioner,

“On Petition for a Writ of Oertiorasi to the United States

Bice ye Court of Appeals for the Minth Otrentt $

Associate Counsel, Pacific Lege! Foundation,

455 Capitol Mall, Suite 465,

; Sacramento, California 95814,

. Counsel for Petitioner.

EPA has not demonstrated that there is no reasonable

expectation that the gasoline limitation regulations will be

PE. canacesecsecuntasseéacétbadennessensbeneest es 3

Ill

EPA could reinstate the gasoline limitation regulations at

GF TD anc beccencccsccdcsdectccncecédadecedosectess 5

IV

If the gasoline regulations are reinstated their impact will

Se EE 6. 6s 0ib.d054000000660060000806R0000000 8

V

Public interest requires a decision on the merits .......... 14

VI

Table of Authorities Cited

Cases Pages

Alton & So. Ry. Co. v. International Ass’n of Mach. & A.

W.. GB FBG GB (EAD. Gh Boe) cccccccccccececccss 9,14

Committee to Free the Fort Dix 38 v. Collins, 429 F.2d 807

CBB CEP, FRU) ccccccccccccctogcccccccenescececsoess 9

DeFunis v. Odegaard, 416 U.S. 312 (1974) .......... 2, 11, 12, 14

Gray v. Sanders, 372 U.S. 368 (1963) ............000. 9, 10,12

Local No. 806, Oil Workers International Union v. Missouri,

RS Re ree rrr rr ee 5, 6, 7

Motor Coach Employees y. Missouri, 374 U.S. 74 (1963) .. 7,8

Riverside v. Ruckelshaus, 4 E.R.C, 1729 (1972) .......... 4

Southern P. Terminal Co. v. Interstate Commerce Comm'n,

Ck Ge ED 60660 0ncddicccuduccescasnceusuer 12,13

State Highway Commission v. Volpe, 479 F.2d 1099 (8th

eK TD 9 000000000 560000000006085)0080e sess tdeeenns 3,9

Super Tire Engineering Co. v. MeCorkle, 416 U.S. 115

Pe sbeeceedcekcneneeeecasbcdednennsecens 2, 6, 7, 10, 12

United States v. Phosphate Export Asso., 393 U.S. 199

SE nvdesncnaiauxamede anaes adeiacoeeeeee 3

United States v. W. T. Grant Co., 345 U.S. 629 (1953) ... 2,3

Statutes

Ge Wak UO? Gee cc60bnds cab <e daicduetsnncus 2

Texts

Note, Mootness on Appeal, 83 Harv. L. Rev. (1970) :

WUD Ts SOUND. ob 6b. ckcccddecdccadaduuséedsces 3

uD ED Kuh oNn 0s y44 Ob ke obese bees nesnunedenanuen 8

PD GUE 0 0.05060 ce cecacerececdeccSkseasecant 13

Ou the Supreme Court

OF THE

United States

OcroBER TERM, 1976

No. 75-1875

Paciric Lea@at Founpation, Petitioner,

vs.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

On Petitior for a Writ of Certiorari to the United States

Cuurt of Appeals for the Ninth Circuit

BRIEF OF PETITIONER IN OPPOSITION TO RESPONDENT’S

SUGGESTION OF MOOTNESS

I

INTRODUCTION

Rather than respond on the merits to the petition

for certiorari of Pacific Legal Foundation (herein-

after PLE), respondent Environmental Protection

Agency (hereinafter EPA) revoked the gasoline limi-

tation regulations at issue and immediately there-

upon, suggested to this Court that PLF’s petition

(No. 75-1875) is now moot. (EPA Brief in Opposi-

tion in No, 75-1919 and Suggesting Mootness in No.

75-1875 at 6.) The Court has asked the parties to

brief the question of mootness.

As this Court declared in DeFunis v, Odegaard,

416 U.S, 312, 316 (1974):

‘The starting point for analysis is the familiar

proposition that ‘federal courts are without power

to decide questions that cannot affect the rights

of litigants in this case before them.’ North

Carolina v Rice, 404 US 244, 246 (citation

omitted) (1971). The inability of the federal ju-

diciary ‘to review moot cases derives from the

requirement of Article IIL of the Constitution

under which the exercise of judicial power de-

pends upon the existence of a case or contro-

versy.’” (Citations omitted.)

If a defendant, whose action has been challenged

in court, voluntarily ceases that activity before final

disposition of the case, the case does not automatically

become moot. When the legality of the defendant’s

actions has been questioned, something still remains

to be decided, United States v. W. T. Grant Co., 345

U.S. 629, 632 (1953), and when it appears that there

is a danger of recurrence of the facts as they existed

before the defendant ceased his activity, case law

indicates that the merits of the case may be reached

by the courts. ‘‘The question is ‘whether the facts

alleged, under all the circumstances, show that there

is a substantial controversy, between parties having

adverse legal interests, of sufficient immediacy and

reality to warrant the issuance of a declaratory judg-

ment.’ Super Tire Engineering Co. v. McCorkle,

416 U.S. 115, 122 (1974).

‘The statutory mechanism for review of implementation plans

(42 U.S.C. §1857h-5(b)(1)) appears to be a remedy in the nature

of a declaratory relief.

3

In making this determination, the courts have tra-

ditionally examined the possibility of recurrence of

the challenged action from two perspectives. First,

can the defendant demonstrate ‘‘that there is no

reasonable expectation that the wrong will be re-

peated”? W. 7. Grant, supra at 633. Second, can it be

shown that if the action is repeated, the impact will

fall upon the same litigants? State Highway Com-

mission v. Volpe, 479 F.2d 1099, 1106 (8th Cir. 1973).

See also, Note, Mootness on Appeal, 83 Harv. L. Rev.

1672, 1682-1685 (1970).

This brief undertakes to examine the application of

these two questions to the situation existing in the

present case.

II

EPA HAS NOT DEMONSTRATED THAT THERE IS NO REASON-

ABLE EXPECTATION THAT THE GASOLINE LIMITATION

REGULATIONS WILL BE REISSUED

Case law has placed the burden of showing moot-

ness with the defendant. ‘‘The case may nevertheless

be moot if the defendant can demonstrate that ‘there

is no reasonable expectation that the wrong will be

repeated.’ [Footnote omitted.] The burden is a heavy

one.” W. T. Grant, supra at 633.

In United States v. Phosphate Export Asso., 393

U.S. 199, 203 (1968), this Court reiterated the prin-

ciples stated in W, 7. Grant:

‘The test for mootness in cases such as this is

a stringent one. Mere voluntary cessation of al-

legedly illegal conduct does not moot a case; if

4

it did, the courts would be compelled to leave

‘(t]he defendant ... free to return to his old

ways.’ [Citation omitted.] A case might become

moot if subsequent events made it absolutely clear

that the allegedly wrongful behavior could not

reasonably be expected to recur. But here we

have only appellees’ own statement that it would

be uneconomical for them to engage in any fur-

ther joint operations. Such a statement, standing

alone, cannot suffice to satisfy the heavy burden

of persuasion which we have held rests upon those

in appellees’ shoes. . . .”

In the present case, EPA has revoked the gasoline

regulations on the basis that it has no desire to im-

plement them because of their seriously disruptive

nature and on the belief that Congress does not desire

that they be implemented, EPA Brief, Appendix A

at 7-9. Although the Administrator offers no assur-

ances that similar regulations will not be reissued, his

statement that EPA has no desire to implement the

regulation may well be an assurance that it will not

actively seek to renew this action.

The decision regarding such regulation is not solely

under the Administrator’s control. Until Congress

does act, it is apparent from EPA’s previous posture

in this case that it has interpreted the Clean Air Act

so as to allow it to issue the gasoline limitation regu-

lations. The initial regulations promulgated by EPA

for California were drawn up under court order. See

Riverside v. Ruckelshaus, 4 E.R.C. 1729 (1972). Under

these circumstances, without a definitive change in

law, it is possible that EPA will again be put into

5

a position in which it feels it must reissue similar

regulations.

The Administrator of EPA has assert d through-

out this case that he has the authority under present

law to issue the gasoline limitation regulations. In-

deed, a major reason given for revoking the regula-

tions is that the law the Administrator alleges gives

him authority to make the regulations is expected

eventually to be changed. EPA Brief, Appendix A

at 8-9. If the present law is not changed, it appears

that the Administrator will again consider himself

free to reissue the regulations.

A new Congress and a new Administration have

been elected. Whether the new Congress will act as

the Administrator judged the old body desired to, or

whether the new Administration will follow the same

policy as the old, are questions incapable of determina-

tion at this time. These iactors lend support to PLF’s

belief that questions regarding the validity of the

gasoline limitation regulations remain very much

alive.

III

EPA COULD REINSTATE THE GASOLINE LIMITATION

REGULATIONS AT ANY TIME

In Local No. 806, Oil Workers International Union

v. Missouri, 361 U.S. 363 (1960), plaintiff questioned

the constitutionality of a state law which allowed the

governor ‘‘to take possession of and operate a public

utility affected by a work stoppage when in his opin-

6

ion ‘the public interest, health and welfare are jeop-

ardized’....” Id. at 364. By the time the case came

up for final decision, the strike and seizure which

had prompted the lawsuit were over. This Court

found the case moot.

The decision in Oil Workers is explained by this

Court in Super Tire, supra at 122-123:

‘‘In both Harris [v. Battle, 348 U.S. 803

(1954)] and Oil Workers a state statute author-

ized the Governor to take immediate possession

of a publie utility in the event of a strike or

work stoppage that interfered with the public

interest. The seizure was not automatic for every

public utility labor dispute. It took effect only

upon the exercise of the Governor’s discretion.

In each case the Court held the controversy to be

moot because both the seizure and the strike had

terminated prior to the time the case reached this

Court. The governmental action challenged was

the authority to seize the public utility, and it

was clear that a seizure would not reeur except

in circumstances where (a) there was another

strike or stoppage, and (b) in the judgment of

the Governor, the public interest required it, The

question was thus posed in a situation where the

threat of governmental action was two steps re-

moved from reality. This made the recurrence

of a seizure so remote and speculative that there

was no tangible prejudice to the existing inter-

ests of the parties and, therefore, there was a

‘want of a subject matter’ on which any judg-

ment of this Court could operate.”

This Court, in Super Tire, distinguished the situa-

tion there presented and held that case not moot. In

7

Super Tire, the Court found that although the strike

which had engendered the suit had ended, the contro-

versy remained alive since the statute questioned

would take effect imucediately without the discretion-

ary act of any officia). 7d. at 123.

The present case appears to lie somewhere between

the extremes presented by Oil Workers and Super

Tire. The immediate activity (regulation) which

brought about this lawsuit has ceased. Unlike the

Oil Workers situation, however, only one event need

occur before the situation which began the lawsuit

re-occurs—the action of EPA in reissuing the regu-

lations. However, unlike Super Tire, a discretionary

act of an official, again the reissuing of the regula-

tion, is necessary before the facts are the same as

they were before the cessation of the inciting activity.

The case at bar more closely resembles Motor Coach

Employees v. Missouri, 374 U.S. 74 (1963), wherein

plaintiffs again challenged the statute at issue in Ovl

Workers. In Motor Coach Employees, a strike was

in progress, however, the governor had terminated his

seizure of the public utility. This Court refused to

find the case moot:

“There .. . exists in the present case not merely

the speculative possibility of invocation of the

King-Thompson Act [which authorized seizure]

in some future labor dispute, but the presence of

an existing unresolved dispute which continues

subject to all the provisions of the Act. Cf. South-

ern P. Terminal Co v Interstate Commerce Com.

219 US 498, 514-516 . . . United States v W. T.

Grant Co. 345 US 629, 632 .. .” Id. at. 78.

8

In the case at bar, the Clean Air Act remains un-

changed by Congress. Defendant maintains that it

has authority under the Act to issue gasoline limita-

tion regulations, while plaintiff asserts it does not.

This indicates ‘‘the presence of an existing unresolved

dispute” as in Motor Coach Employees. Id. Further,

in Motor Coach Employees, as in the present case, the

challenged action involves the discretion of one gov-

ernment official which could at any time be exercised

to return the parties to direct confrontation.

IV

IF THE GASOLINE REGULATIONS ARE REINSTATED THEIR

IMPACT WILL FALL UPON PETITIONER

In eases in which a private defendant alleges moot-

ness against a government plaintiff because of the

cessation of the activity which has precipitated the

lawsuit, the court generally presumes the same parties

will again be affected if the activity recurs. This is

true because the government is usually seeking en-

forcement of the law and is equally affected any time

allegedly illegal conduct by a private defendant

occurs. In suits against the government, however, it

cannot be presumed that a private litigant will be

affected if the activity which has ceased before a final

disposition of the case is renewed. (See Note, Mootness

on Appeal, supra at 1683.) Therefore, in cases of this

nature, the lower federal courts have often stressed

the need for assurance that the same parties will again

be affected if the terminated action begins again.

«

9

State Highway Commission v. Volpe, supra; Alton &

So. Ry. Co. v. International Ass’n of Mach. & A. W.,

463 F.2d 872, 881 (D.C. Ciz. 1972) ; Committee to Free

the Fort Dix 38 v. Collins, 429 F.2d 807, 812 (3d Cir.

1970).

However, the views of this Court on the require-

ment for such assurances are somewhat uncertain. In

several cases dealing with the mootness issue between

private plaintiff and public defendant, this Court has

tended to stress the need to question the likelihood

of recurrence but has not required a separate and

definitive showing that the same plaintiff will cer-

tainly be involved again.

In Gray v. Sanders, 372 U.S. 368 (1963), a voter

sought an injunction and declaratory relief challeng-

ing certain Georgia statutes dealing with the method

of counting votes in a Democratic primary for the

nomination for Ui. ed States Senator and other

offices. Before the final resolution of the case, the

Democratic Committee voted to hold the 1962 primary

on a popular vote basis, rather than on the method

challenged. This Court reasoned that this voluntary

action did not moot the case.

‘*Moreover, we think the case is not moot by

reason of the fact that the Democratic Committee

voted to hold the 1962 primary on a popular vote

basis. But for the injunction issued below, the

1962 Act remains in force; and if the complaint

were dismissed it would govern future elections.

In addition, the voluntary abandonment of a prac-

tice does not relieve a court of adjudicating its

legality, particularly where the practice is deeply

10

rooted and long standing. For if the case were

dismissed as moot appellants would be ‘free to

return to... [their] old ways.’ United States v

W. T. Grant Co. 345 US 629, 632, 97 L ed 1303,

1309, 73 S Ct 894.” Id. at 375.

Although this action involved a private party versus

the government, this Court did not mention the neces-

sity for proof that the specific plaintiffs would be

affected if the state action were again commenced.

A somewhat similar situation was presented in

Super Tire wherein private plaintiffs challenged a

state statute which allowed welfare benefits to strik-

ing workers. By the time the case was to be decided

the strike involving plaintiffs had ceased and with it

the challenged activity of welfare payments. This

Court found that the case was not moot in that, among

other things, the likelihood of government action con-

tinued since the statute remained in effect to be used

if and when a new strike occurred. At no point did

this Court mention the necessity that the private plain-

tiffs who were employers, show that in a new case

they would be affected. Of course, in Super Tire, the

existence of the challenged statute could influence

workers in their collective bargaining negotiations. Id.

at 124.

If this analysis is correct, it appears that this Court

does not require a separate showing of certain effects

on particular plaintiffs if the facts of the case make

clear that plaintiffs will indeed be involved if the

activity begins anew or if a residuum of government

activity remains.

11

In DeFunis v. Odegaard, supra, another case in

which a private party challenged government action,

this Court, in dictum, plainly ignored the necessity

that the private plaintiff show that the activity which

had ceased would affect it if renewed.

‘There is a line of decisions in this Court stand-

ing for the proposition that the ‘voluntary cessa-

tion of allegedly illegal conduct does not deprive

the tribunal of power to hear and determine the

case, ..e., does not make the case moot.’ [Citations

omitted.] These decisions and the doctrine they

reflect would be quite relevant tf the question of

mootness here had arisen by reason of a unilateral

change in the admissions procedures of the Law

School. For tt was the admissions procedures that

were the target of this litigation, and a voluntary

cessation of the admissions practices complained

of could make this case moot only if it could be

said with assurance ‘that “‘there is no reasonable

expectation that the wrong will be repeated.”’

United States v W. T. Grant Co. supra, at 633

(citation omitted). Otherwise, ‘[t]he defendant

is free to return to his old ways,’ id., at 632 (cita-

tion omitted) and this fact would be enough

to prevent mootness because of the ‘public

interest in having the legality of the practices

settled.’ Ibid. But mootness in the present case

depends not at all upon a ‘voluntary cessation’

of the admissions practices that were the subject

of this litigation. It depends, instead, upon the

simple fact that DeFunis is now in the final quar-

ter of the final year of his course of study, and

the settled and unchallenged policy of the Law

School to permit him to complete the term for

which he is now enrolled.” Jd. at 318. (Emphasis

added.)

12

This language, which was unnecessary for the deci-

sion, appears quite startling, since in DeF'unis, it was

obvious that the plaintiff would have been unable to

show future affect if this had been a ‘‘voluntary cessa-

tion” case.

If the approach taken by this Court in DeF unis,

Super Tire and Gray v. Sanders indicates a trend to

abandon the requirement that private plaintiffs show

to a certainty they will be affected by recurrent gov-

ernment action, PLF’s discussion of mootness could

be limited to a review of EP4A’s assertions of non-

reissuance of the gasoline regulations. However, nei-

ther DeFunis, Super Tire nor Gray v. Sanders

explicitly spoke to the “certainty of affect” require-

ment and the finding of not moot in Super Tire can

be explained on numerous grounds. Jd. at 122-127.

Therefore, it is necessary to examine whether or not,

in the light of well established case law, petitioner

will need to or be able to show its continued interest

if EPA were to reissue the gasoline limitation regu-

lations.

The necessity that private plaintiffs show a con-

tinuing interest in challenged government action has

definitely been abandoned in a series of federal cases

originating from this Court’s decision in Southern P.

Terminal Co. v. Interstate Commerce Comm’n, 219

U.S. 498, 516 (1911). Therein the Court stressed the

public interest in the case presented by the private

party and allowed the case to go forward without

requiring proof that the specific plaintiffs would be

affected if the government reinstated the order about

13

which the plaintiffs complained. The Southern Pactfic

Terminal line of cases, however, which has stressed

the public interest, rather than plaintiff’s continued

involvement in a case, has in large part been limited

to situations in which the government action is ‘‘capa-

ble of repetition, yet evading review.” Id. at 515. See

Note, Mootness on Appeal, supra at 1685-1686.

The present case would fit within this standard if

EPA were again to issue a gasoline rationing regula-

tion scheduled to go into effect by May 1977. Even

if a new time table is enacted by Congress, it is not

unlikely that the resolution of a future challenge could

be as long delayed as the present one.

Petitioner in the present case, however, is not a

sole party representing only its own interests. Rather,

it is a nonprofit corporation organized and existing

under the laws of California for the purpose of en-

gaging in litigation on behalf of California citizens

in matters affecting the public interest. In the case

at bar, petitioner seeks to represent the interests of its

members, contributors and supporters who own or use

vehicles which rely on gasoline. It is certain that

these members, contributors and supporters will con-

‘tinue to be affected by any new actions on the part

of defendant which seek to limit the gasoline supplies

to California.

14

V

PUBLIC INTEREST REQUIRES A DECISION

ON THE MERITS

A claim of public interest in the questions presented

by the litigation will not alone save a case from a

determination of mootness. DeFunis, supra at 316.

However, ‘‘{w]hen the court views the public interest

as greater a lesser possibility of repetition may

suffice ....” Alton & So. Ry. Co. v. International

Ass’n of Mach. & A. W., supra at 880.

There can be little question that litigation dealing

with the Clean Air Act presents issues of immense

public interest. The interests of the public in a defini-

tive resolution of the validity of the gasoline limita-

tion regulations should prompt this Court to rule on

the merits of this case.

VI

CONCLUSION

In that respondent EPA has not carried its burden

of proof that the revoked gasoline limitation regula-

tions will not be reissued and petitioner PLF has

demonstrated that a reissuance of such regulations

will fall upon it and its members, PLF suggests that

the criteria for mootness have not been met. Peti-

tioner believes that the more appropriate disposition

15

would be to grant certiorari and summarily reverse

the decision of the court of appeals.

Respectfully submitted,

RonaD A. ZUMBRUN,

JOHN H. FINDLey,

Counsel, Pacific Legal Foundation,

455 Capitol Mall, Suite 465,

Sacramento, California 95814,

SANDRA R. JOHNSON,

Associate Counsel, Pacific Legal Foundation,

455 Capitol Mall, Suite 465,

Sacramento, California 95814,

Counsel for Petitioner.

GLENN E. Davis,

Pacific Legal Foundation,

1990 M Street, N.W.,

Suite 550,

Washington, D.C. 20036,

Of Counsel.

November, 1976