Opposition — Mont. Power Co. v. U.S.E.P.A.

Supreme Court, U.

FILED :

DEC 21 1976

IN THE

Supreme Court of the United States

OctoBEerR TERM, 1976

Nos. 76-529, 76-585, 76-594, 76-603

MontTaNa PowER COMPANY, ET AL.,

Petitioners,

Vv.

Unitep STaTes ENVIRONMENTAL PROTECTION

AGENCY, ET AL.,

Respondents.

CONSOLIDATED BRIEF IN OPPOSITION TO PETI-

TION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

Tonry ANAYA

Attorney General of New

Mexico

Supreme Court Building

Santa Fe, New Mexico

87503

Henry CHARLES GRIEGO

Assistant Attorney

General Environmen-

tid Improvement

Agency

Post Office Box 2348

Santa Fe, New Mexico

87503

Counsel for Respondent

TABLE OF CONTENTS

Page

SD CU 60 b.n50:9-055556500650660400- 0000006085 2

SD FINE vs divine Cush docutnadeceeesveceténs 2

Reasons for Denying the Writ ..............00e00es 3

I. EPA Did Not Act Beyond Its Authority in Pro-

mulgating the Regulations .................4. 3

II. EPA Procedures in Promulgating the Regula-

tions Complied With the Requirements of the

SE: 6 kno Koh 60h C846 R56 s CERES édeee weet ess 6

III. The Regulations Are Not Arbitrary and Capri-

GRE 5 ccketiscaneewéseceeceneseteensseunace 10

IV. The Clean Air Act and the PSD Regulations Are

eee 14

I ox vnc n'ctcccessesecesecesidsvesenessaces 19

Appendix A

Order of the District Court, Sierra Club e¢ al. v.

PED «ooo nesedcecesbucesvececséveudenes la

TABLE OF AUTHORITIES

CASES:

Brown v. EPA, 521 F.2d 527, 538 (1975) certiorari

granted —U.S, — 1976 .......ccccesccvccceves 16, 17

District of Columbia v. Train, Nos. 74-1013, et al.,

CEs SUNS A, SOOO boc ccdcestesconens 14,17

Gibbons v. Ogden, (22 U.S. (9 Wheat) 1 (1824)) .... 14

Hancock v. Train, — U.S. —, 44 U.S.L.W. 4765 (1976) 4

Heart of Atlanta Motel, Inc. v, United States, 379 U.S.

Oe, CUE on ca el veeS teks aend eee pesabeeede 14, 15

Lichter v. United States, 334 U.S. 742 (1947) ...... 18

Maryland v. EPA, 8 ERC 1105 (C.A. 4, 1975) ...... 17

Maryland v. Wirtz, 392 U.S. 183 (1968) ............ 14

National Cable Television Association v. United States

Ce We EE bck Raw eens cegdds Conceecie 18

ii Table of Authorities Continued

Page

Nebbia v. New York, 291 U.S. 502 (1934) .......... 15

North American Co. v. Securities Exchange Comm.,

397 U.S, 686, 705 (1945) .......ceccccccceesee 14

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) .. 18

Pennsylvania v. EPA, 500 F.2d 246 (C.A. 3, 1974) .. 14

Permain Basin Rate Cases, 390 U.S. 747 (1968) .... 18

Scheister Poultry Corp, v. United States, 295 U.S. 495

CREED: in. bbn5.0600nens cess ncenkaeeeeguaetesusns 18

Sierra Club v. Ruckelshaus, 344 F. Supp, 253 (D.D.C.

1972), affirmed 4 ERC 1815, affirmed sub nom,

Sierra Club v. Fri, 412 U.S, 541 (1973) ...... passim

South Terminal Corp. v. EPA, 504 F.2d 646 (C.A, 1,

SUL: wack hcesawn ses neeeeeewetaunseunsannne 14, 15

Texas v. EPA, 499 F.2d 289 (C.A. 5, 1974) ......... 13

Train v. NRDC, 421 U.S. 60 (1975) .........c000- 3, 4, 5

Union Elec. Co, v. EPA, 515 F.2d 206 (C.A, 8, _— se

United States v. Bishop Processing Co., 287 F. Supp.

624 (D. Md. 1968) affirmed, 423 F.2d 469 (C.A. 4),

certiorari denied, 398 U.S. 904 (1970) .... ..... 15

United States vy. Darby, 312 U.S. 100 (1940) ........ 16

United States v. Southwestern Cable Co., 392 U.S, 157

IA IY ENTAILS Nol Oey CREE 18

West Coast Hotel v. Parrish, 300 U.S. 379 (1987) .... 15

MISCELLANEOUS:

Clean Air Act of 1970, 42 U.S.C., 1857 et seq. ...... passim

Cong. Ree, 116, Cong. Ree. 42522; I Leg. Hist. 118 .... 5

State Implementation Plans and Air Quality Enforce-

mame, 6 COCURET EK, GED ccc cccvccccccececseces 11

II. Ree, No, 94-1742, reprinted at 122 Cong. Res. No.

150 (Pt. 2) at H 11959-95 (Daily ed.) .......... 12

Technical Support Document, EPA Regulations for

Preventing Significant Deterioration, Air Quality,

U.S.C. Protection Agency, Air Quality Planning

and Standards (Jan. 1975) ........cccccccccces 16

Se ee ee

IN THE

Supreme Court of the United States

OcToBER TERM, 1976

Nos. 76-529, 76-585, 76-594, 76-603

Montana Power COMPANY, ET AL,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.,

Respondents.

CONSOLIDATED BRIEF IN OPPOSITION TO PETI-

TION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPREALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

The New Mexico Environmental Improvement

Agency prays that writ of certiorari to review the

judgment of the United States Court of Appeals for

the District of Columbia Circuit requested by peti-

2

tioner in Case Nos, 76-529, 76-585, 76-594, and 76-603

be denied.*

OPINION BELOW

The opinion of the Court of Appeals is officially

reported at 540 F.2d 1114 (1976). It is also set out as

Appendix A to the Petition for a Writ of Certiorari

in No, 76-529 which was filed by Montana Power Com-

pany and fourteen other petitioners.**

QUESTIONS PRESENTED

1. Whether the Environmental Protection Agency

(EPA) acted beyond the scope of its authority under

the Clean Air Act of 1970 (the Clean Air Act) in

promulgating regulations for the prevention of signifi-

cant deterioration of air quality (PSD Regulation).

2. Whether the procedures followed by EPA in

promulgating the regulations complied with the Clean

Air Act.

*This brief is filed in opposition to the positions taken by

Montana Power Company, et al., in No. 76-529: American Petro-

leum Institute, et al., in No. 76-585, Indiana-Kentucky Electrie

Corporation, et al., in No, 76-594, and Alabama Power Company,

et al., in No. 76-603. The State of New Mexico ex rel. New Mexico

Environmental Improvement Agency filed a petition for review in

No. 75-1370 below on issues other than those objected to herein.

Insofar as respondent can determine the parties to the consolidated

proceedings below that will also be adverse respondents to the

foregoing petitions are the United States Environmental Protee-

tion Agency, its Administrator (Russell E. Train), Sierra Club,

the Washington Metropolitan Coalition for Clean Air, New Mexico

Citizens for Clean Air and Water, Oregon Environmental Council,

Sally Rodgers, John Tanton, Suzan L. Moore, Stephen Winter

and the State of Nevada.

Paes Hereafter, the appendices to the petitions in the numbers

cited in the caption above are designated as Petition, No. —

App. —.

’

ee OS ee

oa

——)

3

3. Whether the regulations are arbitrary and

capricious on the ground that they are not directly

related to specific adverse effects or on the ground that

adequate data and modeling techniques do not exist to

make them workable.

4. Whether the Clean Air Act, by prohibiting

significant deterioration of existing air quality and the

regulations violate any constitutional prohibition.

REASONS FOR DENYING THE WRIT

The following reasons deal with the issues presented

by the Petitioners as a basis of their request for this

Court to consider the lower court’s decision. The rea-

sons presented are the basis for the respondents oppo-

sition to the petitioners request.

EPA Did Not Act Beyond Its Authority in Promulgating

The Regulations

The district court in Sierra Club v. Ruckelshaus

(App. A at la) ordered the Administ ‘ator to “*[dJis-

approve any portion of a state plan which fails to

effectively prevent the significant deterioration of

existing air quality in any portion of any state.

Since the Administrator under Section 110 of the Clean

Air Act is already required to disapprove a plan that

does not provide for the ‘‘enhancement”’ of dirty air

(Petition, No. 76-529, App. A at 101a), the court order

provides another reason for the disapproval of a plan.

Petitioners' rely heavily on the decisions of this

Court in Train v. NRDC, 421 U.S. 60 (1975), Union

1 Petition, No. 76-529 at 27-30; Petition, No. 76-585 at 8-12;

Petition, No. 76-594 at 6-11; Petition, No, 76-603 at 11.

4

Electric Co. vy. EPA, —- U.S. —, 44 U.S.L.W. 5060

(June 25, 1976), and a statement made in Hancock v.

Train, — U.S. —, 44 U.S.L.W. 4765 (1976) to

support their contention that the criteria established in

Section 110 concerning the reduction of pollution which

exceeds the national standards are the only ones which

relates to approval of implementation plans by EPA.

They further argue that these decisions are inconsis-

tent with the holding in Sierra Club vy. Ruckelshaus,

thus implicitly overruling it.’

The Court below in considering the decision in Train

v. NRDC based on similar arguments made by Peti-

tioner said:

Unlike the instant case, Train was coneerned with

air pollution below the national standards, and the

question was whether individual variances would

prevent the states from achieving the standards

within the prescribed time limits. The Supreme

Court in Train did not consider the issue of non-

deterioration, even though the decision below was

based in part on Sierra Club yv. Ruckelshaus.

Rather than assume, as the industrial petitioners

would have us, that Train silently overturned the

earlier divided affirmance in Sierra Club, we find

it more reasonable to conclude that the Court did

not address the issue, and we reject the argument

based on Train. Petition, No. 76-529, App. A at

A-28.

Also, in reviewing this Court’s decision in Union

Electric Co. v. EPA, the lower court said:

‘

Although the Court stressed the ‘‘shall approve’?

language of Section 110(a)(2), its construction

was founded on a concern that the congressional

2 Id.

a ee

5

mandate of prompt implementation of pollution

control plans not be disserved. The Court was not

presented with the distinet question whether the

‘‘shall approve’ language of Section 110(a) (2)

must be read to subvert the concomitant congres-

sional directive that significant deterioration of air

cleaner than the national standards be prevented.

Thus, despite the emphasis placed on (a) (2) by

the opinions in Train v. NRDC and Union Elee-

tric, we do not believe the result in the instant case

is controlled by either opinion. Petition, No. 76-

529, App. A at 29a.

It should be noted that the lower court in [nion

Electric expressly pointed out that the state ‘‘*may also

be required to assure the nondegration of air quality

which exceeds the national standards.”’ Supra at 220,

This Court made no comment on this statement in its

opinion.

The Clean Air Act states a policy of protecting clean

air and the congressional testimony of HEW = Secre-

tary Fineh and Undersecretary Venaman, and the

Senate report, as set out in the lower court’s opinion

(Petition, No. 76-529, App. A at 20, 21), show that the

adoption of Section 110 in 1970 did not change that

policy. It would indeed be unfortunate if the 1970

Amendments which Congressman Rodgers deseribed

as legislation in which Congress ‘‘has committed itself

in the strongest possible terms to bringing about clean

air in America’ (116 Cong. Ree. 42522; I Leg Hist.

118) would be construed to allow significant degreda-

tion of this nation’s clean air.

6

II

EPA Precedures in Promulgating the Regulations Complied

With the Requirements of the Act

Indiana-Kentucky Electrie Corp., et al., in Petition,

No. 76-594, make two main arguments in challenging

the procedures followed by EPA in promulgating the

regulations for the prevention of significant deteriora-

tion:

1. EPA did not give states an opportunity to re-

vise their implementation plans before the

Agency promulgated its é6wn regulations, id. at

11, and

EPA failed to hold hearings in every state be-

fore the promulgation of these regulations, id.

at 12.

bo

A. Tue Reauiations Are Not INVALID ON THE GrounpD

THat EPA Dip Nor Give Strares an Opportunity

To Revise Tuer IMPLEMENTATION PLANS

Petitioners rely upon Section 110(a)(2)H of the

Act. That section provides for revisions in state im-

plementation plans to be made by the states. Petition,

No. 76-529, App. E at 103a.

Section 110(a) in general sets forth procedures for

the formulation, revision, submission to EPA and ap-

proval or disapproval by EPA of new and revised

plans, If a new or revised plan is disapproved by

I;PA, Section 110(¢) provides for the promulgation

by EPA of new or revised regulations which add to

or replace all or portions of the plan (see Petition,

No. 76-529, App. E at 101a through 106a).

The procedures for revisions to the implementation

plan are essentially the same as for the development

7

of the plan. Both involve formulation by the states

and changes by the Administrator only if required by

the Act. However, they differ in that one relates to

the original adoption of a plan meeting the require-

ments of the Act and the other coneurs subsequent

revision to an approved plan as are necessary or de-

sirable to assure continued compliance with the Act.

The PSD regulations issued by the Administration

relates to the original states implementation pians.

The district court in Sierra Club v. Ruckelshaus or-

dered the Administrator to disapprove all original

states implementation plans if they failed to effectively

prevent significant deterioration, App. A at la. All

state implementation were disapproved by the Admin-

istrator on November 9, 1972, insofar as they related

to significant deterioration of existing air quality. 37

Fed. Reg. 23826. The present regulations were issued

in November 1974 as part of the original state imple-

mentation plans, rather than revisions as that term is

used in the Act. Section 110(a)(2)(H) and (e) (3)

is therefore inapplicable.

Petitioners’ argument would require that all addi-

tions to or modifications «f state plans by EPA result-

ing from the disapproval of the plans be treated as

revisions, invoking the procedures of 110(a)(2)(H)

and 110(c)(3). This would render Section 110(e) (2)

totally meaningless. That section allows the Adminis-

trator to promulgate his own regulations when the

state plan does not carry out the substantive require-

ments of the Act. In contrast, Section 110(¢) (3) per-

mits the Administrator to issue regulations if the state

has not adequately revised its plan. If any EPA modi-

fication of state plans, after their disapproval, is con-

sidered as a revision, Section 110(¢) (2) has no mean-

ing.

8

Furthermore, the district court ordered the Admin-

istrator and not the states to prepare regulations.

There is no mention in the order of notification to the

states to make revisions. If the court had intended

that the states were to be given an opportunity to re-

vise their implementation plans before EPA acted, it

is likely that the court would have provided more than

six months time.

Moreover, the regulations represent the minimum

requirements necessary to prevent significant deteri-

oration of air quality and does not prevent states from

promulgating as strict or stricter regulations.’

B. Tur Reeviations Are Not INVALID ON THE GROUNDS

THat EPA Fatrep To Horp Heartnas 1x Every

Strate Prior To PROMULGATING THE REGULATIONS

The Clean Air Act does not make public hearings

mandatory in every state before promulgation of regu-

lations by EPA ean become part of all state imple-

* The preamble to the PSD regulations proposed on August 27,

1976 states:

To facilitate development of State plans to implement the

general policy set forth in these regulations in the near fu-

ture the Administrator intends to publish guidelines for the

preparation, adoption, and submittal of State Implementation

Plant provisions with respect to the prevention of significant

deterioration (40 C.F.R. 51). These additional guidelines

will provide criteria for submission of State plans to prevent

significant deterioration. The State plans need not be identi-

cal to the regulations proposed herein, but should be developed

to accomodate more appropriately individual conditions and

procedures unique to specifie State and local areas. States are

urged to develop and submit individual plans as revisions

to State Implementation Plans as soon as possible. When

individual State Implementation Plan revisions are approved

as adequate to prevent significant deterioration of air qual-

ity, the applicability of the regulations proposed herein will

be withdrawn for that State. [39 Fed. Reg. 31000.]

9

mentation plans. The relevant section of the Act pro-

vides:

If such state held no public hearing associated with

respect to such plan (or revision thereof), the Ad-

ministrator shall provide opportunity for such

hearing within such state on any proposed regu-

lation.

It is clear that from this provision that EPA must

provide an opportunity for a public hearing within the

state of a proposed regulation only if the state failed

to hold a public hearing before promulgating its im-

plementation plan or revision.

Every state in the country held hearings with regard

to its implementation plan by 1972.° The hearings in

each state constituted a ‘“‘public hearing associated

with regard to such plan * * * ’’. Therefore, in_pro-

mulgating the PSD regulations, EPA was not required

under Section 110(d) to hold new hearings in each

state.

Notwithstanding that hearings were not held in every

state prior to this promulgation of the PDS regula-

tions, the procedures followed by EPA went well be-

yond the informal rulemaking requirements of the

Administrative Procedure Act, 5 U.S.C. 553, and gave

all members of the public and industry adequate op-

portunity to present their views concerning the pro-

posed regulations. The original proposed regulations

were published in the Federal Register on July 16,

1973. 38 Fed. Reg. 18986. EPA also held hearings in

* Section 110(c) (1), Petition, No. 76-529, App. E at 196a.

5 EPA published initial approval or disapproval of all state

implementation plans by May 31, 1972. 37 Fed. Reg. 10842.

10

August and September, 1973 in five different cities

across the United States, and solicited comments from

specific individuals and groups. 39 Fed. Reg. 31000.

It is clear that the lack of hearings in every state

before promulgation of the PSD regulations did not

violate the Act or deny the public the right to comment

in the proposed regulations.

III

The Regulations Are Not Arbitrary and Capricious

A. Tue Arr Quatity DerertorATION INCREMENTS ARE

Not ARBITRARY AND CAPRICIOUS

Petitioners ° argue that the Class I and Class IT in-

crements are arbitrary and eapricious on the ground

that the Classes are not directly linked to specific ad-

verse effects.’

New Mexico agrees with the position taken by the

Sierra Club in Petition, No. 76-617* coneerning the

Class III inerement allowed by the PSD regulation.

Ilowever, with respect to the other increments, the lack

of a direct relationship with harm to health and wel-

fare does not render the regulations unlawful.

The regulations allow for some variance in the level

of air quality across the country by defining the maxi-

® Petition, No. 76-585 at 21, 22 and Petition, No. 76-603 at 12.

‘Class III inerement under the PSD regulations allows any

amount of degradation up to the national standards. 40 CFR,

92(e) (2) (ii).

* The Sierra Club Petition pending before this Court is not being

opposed in this brief. Rather New Mexico believes the position

taken by the Sierra Club in their petition concerning the Class

If] increment, id. at 9-11, to be correct.

ee

11

mum amounts of additional pollution which may be

considered relatively insignificant.

The court below noted that the term ‘‘significant de-

terioration’’ was not defined by the district court in

Sierra Club v. Ruckelshaus, but left the definition to

the EPA.’ Nor does the legislative history of the Act

or the Act itself define the term. However, the struc-

ture of the Act suggests that the meaning of ‘‘signifi-

cant’’ should not be tied to the secondary standards.

The national primary and secondary standards are by

definition quantified estimates of measured effects of

pollution on health and welfare.” Therefore, one goal

of EPA in the promulgation of the PSD regulations

could be to protect against undetected, unquantified,

or unquantifiable effects of air pollution. 38 Fed. Reg.

18987. Rather than guard against undetected or un-

quantified effects of air pollution, and thus prohibit

any increase in pollution, EPA chose another solution.

EPA’s solution, as stated by the lower court, was:

[a] definition created by its own implementation ;

each state’s evaluation of the relative importance

of the competing interests which surround con-

tinued maintenance of air quality will determine

what level of deterioration would be significant

for that state. The three classifications thus are

not intended to represent a scientific conclusion as

to what constitutes significant deterioration;

rather, they are suggested frameworks for use by

the states after independent evaluation. Because

the regulations do not purport to be mandatory

® Petition, No. 76-529, App. A at 42a.

1 § 109, 43 U.S.C. § 1857 e-4, Petition, No. 76-529, App. E at

99a. Also see generally Comment, Il: State Implementation Plans

and Air Quality Enforcement, 4 Ecology L.Q. 595, 597-593.

12

requirements based on scientific research, they

properly cannot be judged by asking whether the

increments are related to demonstrated health ef-

fects. [ Petition, No. 76-529, App. A at 42a].

Petitioners point to no alternative method of defin-

ing significant deterioration of air quality other than

permitting air to deteriorate to the level of clear, quan-

tifiable harm.

EPA’s approach to preventing significant deteriora-

tion by establishing the Class I and Class I] increments

is reasonable and supported by recent Senate and

House passed bills (S. 3219 and H. R. 10498, 94th

Cong.) as well as a compromise provision.”

Thus, the Class I and Class II increments of the

PSD regulations appear to set reasonable limits on

deterioration of existing clean air.

B. ApeguaTe Data AND MopeLina TEcHNIQUES EXIst

To IMPLEMENT THE REGULATIONS

Petitioners in No. 76-585 at 24, 25, have objected

that available modeling techniques are inadequate to

predict with precision what effect a proposed new

source will have on the ambient air and therefore on

the Class designation for its area.

The regulations provide that prevention of signifi-

cant deterioration in designated clean air areas should

be enforced chiefly through the preconstruction review

of new and modified sources. 40 C.F.R. 52.21(d).

EPA suggests the use of diffusion modeling techniques

1 The Conference bill failed of passage in both Houses prior to

adjournment, sine die. See H.R. No. 94-1742 reprinted at 122

Cong. Res. No. 150 (Pt. 2) at H 11959-94 (daily ed.). Specifically

H 11970-73, 11987-88.

13

to predict if a proposed new source will violate the

allowable increment for the area and to keep track of

the unused increment.

EPA acknowledges that existing techniques for

modeling are not entirely accurate but states (39 Fed.

Reg. 31003) :

It should also be noted, however, that data obtained

from current diffusion modeling techniques, while

not corresponding to actual conditions in the am-

bient air, do provide a consistent and reproducible

guide which can be used in comparing the relative

impact of a source.

The method of air quality management in Section

110 of the Act depends on the use of some type of

model for relating emissions to air quality.”

In Teras v. EPA, 499 F.2d 289 (1974), the Court of

Appeals for the Fifth Circuit, in considering EPA’s

reliance on atmospheric models, said:

In the absence of sophisticated information, the

EPA has been foreed to rely on crude assumptions.

We cannot object, for it is not our role to judge

whether the EPA’s projections are accurate, but

only whether they represent arbitrary or capri-

cious exercises of its authority. Necessity, which

has mothered the EPA’s invention of this model,

also protects it from a judicial insistence on great-

er reliability. Decisions which are not arbitrary

and capricious inthe light of existing knowledge

may become so by dint of scientific advance. By

its use of estimations and sparce data, the KPA

12§110(a)(2)D and 110(a)4, Petition, No. 76-529 at 102a,

104a. These sections require that state implication plans include

a preconstruction review procedure similar to that required in

the PSD regulations.

14

creates a continuing responsibility to develop, re-

view and apply updated and more sophisticated

information.

It is clear that should model inaccuracy be the basis

for invalidating the PSD regulations the control of air

pollution through modeling techniques, as employed

under § 110 of the Clean Air Act, may be endangered.

IV

The Clean Air Act and the PSD Regulations Are Not

Unconstitutional

A. Tue Act Anp THE REGULATIONS ARE WITHIN THE

Powers GRANTED UNbDER THE COMMERCE CLAUSE

Petitioners in No. 76-585 at 17, 18 argue that under

the Commerce Clause the Congress has no authority

to require prevention of significant deterioration of

existing air quality.

This Court has repeatedly recognized this broad

sweep of the power Congress has over commerce.” In

addition, several circuit courts have found that air

pollution has an effect upon commerce and therefore

can be regulated by Congress."

Both Congress and the courts have recognized that

air pollution recognizes no boundaries and is by defini-

13 Gibbons v. Ogden, 9 Wheat 1, 196 (1824); North America Co.

v. Securities and Exchange Comm., 327 U.S. 686, 705 (1945);

Heart of Atlanta Motel v. U.S., 399 U.S. 241, 255 (1964); Mary-

land v. Wirtz, 392 U.S. 183, 190 (1968).

™ Pennsylvania v. EPA, 500 F.2d 246, 259 (C.A. 3, 1974); Ae-

cord South Terminal Corp. v. EPA, 504 F.2d 646, 677 (C.A. 1,

1974) ; District of Columbia v. Train, — F.2d —, — (C.A.D.C.,

1975).

15

tion a part of interstate commerce.” Given that air

pollution control is within the commerce power of Con-

gress, control of air pollution via PSD regulations

would similarly be within power.

B. Tue Act Anp THE REGULATIONS Do Nor VIOLATE

THE FirtH AMENDMENT

Petitioners in No. 76-585 at 23, 24, argue that the

Act and regulations violate substantive due process

because they bear no relationship to the protection of

health and welfare.

This Court has repeatedly held that if the laws ave

not arbitrary and bear a reasonable relationship to a

proper legislative purpose then the requirements of

due process are not violated.”

Section 101(b) provides that the purpose of the Act

is ‘‘to protect and enhance the quality of the Nation’s

air resources so as to promote the public health and

welfare and the productive capacity of its population.”

Petition, No. 76-529, App. E at 97a.

There are harms to the public health and welfare at

air quality levels below the secondary standards which

are impossible to quantify.”

15 § 101(a)(2) of the Act, Petition, No. 76-529, App. E at 97a;

South Terminal Corp. v. EPA, supra, 504 F.2d at 667; United

States v. Bishop Processing Co., 287 F. Supp. 624, 629 (D. Md.

1968), affirmed 423 F.2d 469 (C.A. 4), Certiorari denied, 398 U.S.

904 (1970).

16 Nebbia v. New York, 291 U.S. 502, 537 (1934); West Coast

Hotel yv. Parrish, 300 U.S. 379, 391 (1939); Heart of Atlanta Mo-

tel, Inc. v. United States, 379 U.S. 241, 253-259.

17 EPA has stated that:

Limitations on air quality that result in cleaner air than

the national ambient air quality standards cannot * * * be

16

Congress, consistant with the due process clause of

the Fifth Amendment, can properly prohibit signifi-

cant deterioration of existing clean air even though

existing scientific information does not establish the

pollution levels below the national standards that might

harm the public. Such a decision, to prevent unknown

but possible harm, surely bears a reasonable relation-

ship to a proper legislative purpose.

C. Tue Act Anp Rroevutations Do Not VIoLATEeE THE

TENTH AMENDMENT

Petitioners Nos. 76-585 at 15 and 76-603 at 11 argue

that the Act, if it authorizes the PSD regulations, vio-

lates the Tenth Amendment by assuming the right of

the states to regulate land use. This Court in United

States v. Darby, 312 U.S. 100, 114 (1940), has made it

clear that any activity within the state police power

does not preclude regulations at the federal level based

on the commere? clause.”*

The Court of Appeals for the Ninth Cireuit recently

held in Brown vy. EPA, 521 F.2d 527, 538 (1975),

certiorari granted, — U.S. —, (1976), that Con-

gress has in the Clean Air Act exercised its power

based on any quantitative measure of harm to either public

health or welfare. This is not, however, to say that there are

no possible unquantified adverse effects on public health or

welfare below the levels of the national standards. Examples

of such unqvantified effects involve the transformation of

sulfur dioxide into suspended sulfates and sulfurie acid

aerosols, resulting in possible effects on health, visibility,

climatic changes, acidity of rain, and deterioration of mate-

rials. Technical Support Document—EPA Regulations for

Preventing the Significant Deterioration of Air Quality, U. 8.

Environmental Protection Agency, Office of Air Quality Plan-

ning and Standards (January 1975), at 6.

18 Also see discussion under IV A above.

17

under the commerce clause to exclude state regulation

of interstate commerce.

[ T the State’s exercise of its police power must not

improperly burden interstate commerce * * *.

With this proposition no one differs * * *. [I]n

the area of control of air pollution federal law has

preempted state law * * *.

Moreover the prohibition against significant dete-

rioration of air quality in the statute and regulations

has no greater effect on land use than other restrictions

imposed by the Act. Thus, the petitioners arguments

constitute an attack upon the constitutionality of the

entire Act.

Peitioners in No. 76-585 at 17, 18 also argue that the

regulations violate the Tenth Amendment by requiring

the States to implement and enforce the PSD regula-

tions. Neither the statute nor the regulations force the

states to do anything to enforce the regulations. ‘The

states are given the opportunity to assume the respon-

sibility for the implementation and enforcement of the

regulations, but in no way are compeled to do so.”

D. AutTHority TO Promu.LGcATe THE PSD

REGULATIONS Is Nor AN UNCONSTITUTIONAL

DELEGATION OF UEGISLATIVE AUTHORITY

Petitioners in Nos. 76-585 at 12 and 76-603 at 11

argue that Congress has unconstitutionally delegated

19 Several Courts of Appeals have held that regulations that

compel the States to take affirmative action to carry out the Clean

Air Act are unconstitutional. Brown v. EPA, 521 F.2d supra at

838; District of Columbia v. Train, 521 F.2d 971 (C.A.D.C. 1975),

certiorari granted — U.S. — (1976); Maryland v. EPA, 530 F.2d

215 (C.A. 4, 1975), certiorari granted, — U.S. — (1976). How-

ever, none of these decisions support the position that the PSD

regulations violate the Tenth Amendment.

18

legislative authority to EPA by failing to set forth

adequate criteria under which EPA prevent significant

deterioration of existing clean air.

The delegation by Congress to EPA to prevent sig-

nificant deterioration of existing clean air is not un-

constitutional. Such delegation falls within the limits

set by this Court in Lichter v. United States, 334 U.S.

742, 785 (1948) :

It is not necessary that Congress supply adminis-

trative officials with a specific formula for their

guidance in a field where flexibility and the adap-

tation of the congressional policy to infinitely vari-

able conditions constitute the essence of the pro-

gram. If Congress shall lay down by legislative

act and intelligible principle * * * such legislative

action is not a forbidden delegation of legislative

power.

Petitioners cite National Cable Television Associa-

tion v. United States, 415 U.S. 336, 342 (1974);

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)

and A.L.A. Scheichter Poutry Corp. v. United States,

295 U.S. 495 (1935) as authority for their contentions.

However, other decision by this Court have allowed

Congress wide latitude in delegating its powers.”

With regard to the Clean Air Act, the First Cireuit

Court of Appeals in South Terminal Corp. v. EPA, 504

F.2d 646, 676 (1974) pointed out that ‘‘The [Clean

Air] Act leaves considerable flexibility to EPA in the

” Legislative criteria that have been described by this Court as

adequate standards in delegating its powers are: the direction to

do what is ‘‘ necessary’ to carry out the agency’s frnctions, United

States v. Southwestern Cable Co., 392 U.S. 157, 180-181 (1968) ;

and ‘‘just and reasonable’’ rates, Fermian Basin Rate Cases, 390

U.S. 747 (1968).

19

choice of means. Yet there are benchmarks to guide

the Agency and the courts in determining whether or

not EPA is exceeding its powers * * *.”’

It appears that Congress has within the Clean Air

Act set out a clear policy by which EPA must conform

in promulgating the preventing of significant dete-

rioration regulations.

CONCLUSION

For the foregoing reasons, respondent respectfully

submit that Petitions for a Writ of Certiorari Nos.

76-529, 76-585, 76-594, and 76-603 should be denied.

Respectfully submitted,

TongEY ANAYA

Attorney General of New

Mexico

Supreme Court Building

Santa Fe, New Mexico

87503

Henry CHARLES GRIEGO

Assistant Attorney

General Environmen-

tal Improvement

Agency

Post Office Box 2348

Santa Fe, New Mexico

87503

Counsel for Respondent

APPENDIX

la

APPENDIX A

Srerra Crus, et al., Plaintiffs,

v.

Rvucxetsuaus, Defendecnt.

Crviz Action Number 1031-72

Preliminary Injunction

(Firep May 30, 1972)

It appearing to the Court that a Preliminary Injunction

pending hearing and determination of plaintiffs’ request

for a permanent injunction and other relief should be is-

sued because, unless defendant is enjoined from approv-

ing portions of state implementation plans permitting sig-

nificant deterioration of air quality, plaintiffs may suffer

immediate and irreparable injury, loss and damage before

the determination of this case on the merits,

Now Tuererore, Ir Is Orperep, that defendant, his

agents, officers, servants, employees, and attorneys, and

any persons in active concert or participation with him,

be and they are, hereby enjoined until plaintiffs’ request

for a permanent injunction and other relief has been de-

termined by this Court from, directly or indirectly, ap-

proving any state implementation plan under 42 U.S.C.

1857¢c-5 unless he approves the state plan suhject to subse-

quent review by him to insure that it does not permit sig-

nificant deterioration of existing air quality in any portion

of any state where the existing air quality is better than

one or more of the secondary standards promulgated by

the Administrator. ‘The Administrator shall complete

this review of all the state plans within four months of

this order. The Administrator, shall within this four-

month period, approve any portion of a state plan which

effectively prevents the significant deterioration of existing

2a

air quality in any portion of any state, and disapprove any

portion of a state plan which fails to effectively prevent

the significant deterioration of existing air quality in any

portion of any state.

The Administrator shall prepare and publish proposed

regulations, pursuant to 42 U.S.C. 1857¢e-5 (c) as to any

state plan which he finds, on the basis of his review, either

permits the significant deterioration of existing air quality,

in any portion of any state or fails to take the measures

necessary to prevent such significant deterioration. Such

regulations shall be promulgated within six months of this

order.

This order shall be stayed until 9:00 a.m., May 31st, 1972.

/s/ ILLEGIBLE

District Judge

Date: 30 May 1972