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

MOTION OF INTERVENOR RESPONDENTS

SUGGESTING MOOTNESS

On April 4, 1977, this Court granted petitions for

writs of certiorari in the above-captioned proceedings.

The order issued on that day limited the questions be-

fore the Court to the following:

1. Whether regulations promulgated by the Environ-

mental Protection Agency to prevent the significant

deterioration of air quality are authorized by the

Clean Air Act;

2. Whether the Clean Air Act permits the Environ-

mental Protection Agency to adopt regulations which

grant to federal land managers and Indian govern-

ing bodies power to reclassify federal and Indian

lands within their jurisdiction.

Intervenor respondents Sierra Club, et al., believe that

the recently enacted Amendments to the Clean Air Act,

P.L. 95-95, which were signed into law by the President

on August 7, 1977, dispose of any doubt as to these two

questions. Consequently, the case before this Court is

essentially moot. To the extent that any questions might

still be raised, they are not of a sufficient consequence

to warrant review by this Court and, in any case, should

first be considered by the lower court in the light of

the new statute.

I

THE REGULATIONS OF THE

ENVIRONMENTAL PROTECTION AGENCY

The regulations at issue here were promulgated by

the Enviromental Protection Agency in December 1974.

39 Fed. Reg. 42509. The promulgation of these regula-

tions was in response to the ruling in Sierra Club v.

Ruckelshaus, 344 F. Supp. 253 (D. D.C. 1972), affirmed

per curiam, 4 ERC 1815, affirmed by an equally divided

Court sub nom. Fri v. Sierra Club, 412 U.S. 541 (1973).

That decision found that the policy of preventing signifi-

2

cant deterioration of existing clean air was part of the

Clear Air Act and indeed had been part of that statute

even before its amendment in 1970. 344 F. Supp. at 256.

The stated purpose of the EPA regulations is the preven-

tion of significant deterioration of air quality—that is,

preventing air which is presently cleaner than would be

allowed by the national ambient air quality standards

adopted by EPA pursuant to the Clean Air Act of 1970,

42 U.S.C. 1857, et seg., from becoming significantly

dirtier. .

The regulations issued by EPA were immediately chal-

lenged by the petitioners now before this Court.“ The

litigation brought before the Court of Appeals for the

District of Columbia Circuit pursuant to Section 307 (b)

(1) of the Clean Air Act, 42 U.S.C. 1857h-5(b) (1),

raised a number of issues concerning the regulations and

their validity, including the two quesiions before this

Court. The Court of Appeals rejected all challenges and

found the regulations valid and reasonable in nearly all

Sierra Club v. Environmental Protection Agency,

540 F. 2d 1114 (1976), set out as an appendix to the

Petition for Writs of Certiorari in Nos. 76-529. How-

ever, as to the question of the authority of Indian govern-

ing bodies and federal land managers to determine the

air quality designation of lands under their control, the

Court of Appeals found the issue not ripe for review. See

Petition for a Writ of Certiorari, No. 76-529, App. A,

p. 47a.

Generally, the regulations provide for a system of air

quality classifications to limit increases in the level of

1 Intervenor respondent Sierra Club also challenged the regula-

tions on the ground that they were not fully adequate to carry out

their purpose. This challenge was rejected by the Court of Appeals,

which found the regulations reasonable, and the Sierra Club’s peti-

tion for a writ of certiorari was denied by this Court. Order of

April 4, 1977, No. 76-617.

two pollutants, sulphur dioxide and particulates, in clean

air areas. 40 C. F. R. 52.21(c). Class I, which is the

most restrictive, allows only small additional amounts of

the two pollutants to be introduced into a clean air area.

40 C. F. R. 52.21 (e) (2) (i). Class II allows a considerable

additional amount of these two pollutants. las III

would allow pollution levels to rise to the lowest of the

national ambient air quality standards. 40 C. F. R. 52.2

(e) (2) (ii). All areas of the country were originally

designated as Class II by EPA, but States and Indian

governing bodies could redesignate lands under thew ju-

risdiction as Classes I or III ana federal land managers

could redesignate from the existing classifivation but only

to a more restrictive one. 40 C. F. R. 52.21(c) (3).

The regulations also estadlish a permit system under

which major new seurces of air pollution are required to

demonstrate, prior to construction, that the emissions of

sulfur dioxide and particulates which they will produce

will not exceed the amounts of these pollutants allowed

by the increments applicable to am area which the

emissions would affect. 40 C. F. R. 52.21(d).

II

THE CLEAN AIR ACT AMENDMENTS OF 1977

On August 7, 1977, President Carter signed into law

extensive amendments to the Clean Air Act, including

detailed provisions for the prevention of significant de-

terioration of air quality. The amendments passed by the

Congress, H.R. 6161 (123 Cong. Rec. H8507 (daily edi-

tion) ), have two main effects on this litigation.

First, they establish detailed rules for preventing sig-

nificant deterioration of clean air, including (1) a re-

quirement that state implementation plans be developed

to prevent significant deterioration of air quality (Sec.

4

161), (2) the adoption of applicable increments (Sec.

163(b)), (3) provision for the automatic designation of

national parks, wilderness areas, and other similar areas

as Class I areas where very little additional pollution

will be allowed (Sec. 162(a)), (4) permission for States

and Indian governing bodies to redesignate other areas

(See. 164(c)), and (5) procedures for preconstruction

review of major new sources of air pollutants (Sec. 165).

These provisions are applicable as soon as a state im-

plementation plan is issued for a particular area (Sec.

168(a)).

Second, the 1977 Amendments specifically adopt the

present regulations and provide that they shall be in force

until a state implementation plan has been developed, ex-

cept where inconsistent with specific provisions of the

bill:

Sec. 168(a). Until such time as an applicable imple-

mentation plan is in effect for any area, which plan

meets the requirements of this part to prevent sig-

nificant deterioration of air quality with respect to

any air pollutant, applicable regulations under this

Act prior to enactment of this part shall remain in

effect to prevent significant deterioration of air

quality in any such area for any such pollutant

except as otherwise provided in subsection (b).

(b) If any regulation in effect prior to enactment

of this part to prevent significant deterioration of

air quality would be inconsistent with the require-

ments of section 162 (a), section 163 (b) or section

164(a), then such regulations shall be deemed

amended so as to conform with such requirements.

In the case of a facility on which construction was

commenced in accordance with this definition after

June 1, 1975, and prior to the enactment of the Clean

Air Act Amendments of 1977, the review and permit-

ting of such facility shall be in accordance with the

regulations for the prevention of significant deteriora-

5

tion in effect prior to the enactment of the Clean Air

Act Amendments of 1977.

It is readily apparent, from even a cursory comparison

of the regulations and the 1977 Amendments, that both

the essential structure and underlying philosophy of the

regulations were adopted and incorporated in the final

statute. Both the regulations and the 1977 Amendments

provide for the use of an increment system based on land

classifications. Both allow for redesignation by States and

Indian governing bodies of the lands within their juris-

diction.* Both provide for preconstruction review of ma-

jor new pollution sources to ensure that the applicable

pollution increments will not be violated. However, even

more important, Section 168 adopts virtually all the

regulations for the period prior to the issuance of the

implementation plans at which time the statutory pro-

? The provisions of the 1977 Amendments which immediately

amend and supersede the regulations deal with the mandatory

Class I areas (Sec. 162(a)), the applicabie increments (Sec. 163(b)),

and the areas which are initially classified Class II but may be

— — only to Class (See. 164¢a)). In addition, the amend-

ments modify the defimitiwm contained in the regulations for the

commencement of construction (Sec. 164(b)), a provision which

governs which

the regulations the statute

major mew sources will be subject to review under

and

the

federal land manager has been changed from

that of a redesignating authority (40 C. F. R. 52.21 (e) (3) (iv)) to

one offering recommendations for further designations of Class I

lands and determining where certain variances from the statutory

standards may, or may not, be permitted (Sec. 164(d), 165). The

reason for the — in role is obviously that the statute itself

provides for the protection of the most sensitive federal areas by

actually making them Class I. Thus, the provision in the regula-

tions which gave the federal land managers authority to redesignate

only to a more restrictive classification (40 C.F.R. 52.21(c) (3) (iii),

(iv)) and, in this fashion, provide protection for the sensitive

lands under their jurisdiction will largely be unnecessary.

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III

EFFECT OF THE 1977 CLEAN AIR ACT AMENDMENTS

ON THE PROCEEDINGS BEFORE THIS COURT

It is a matter of basic law that this Court will re-

view a case on the basis of the “law as it now stands,

not as it stood when the judgment below was entered.”

Diffenderfer v. Central Baptist Church, 404 U.S. 412,

414 (1972). The law regarding the prevention of sig-

nificant deterioration of air quality, as it now stands,

is the statute signed into law on August 7, 1977. From

the date of that statute onward, the questions before this

Court are entirely moot. There can be no doubt after

that date whether the “regulations promulgated by the

Environmental Protection Agency * * * are authorized

by the Clean Air Act” (Question 1), or whether the “Act

permits the Environmental Protection Agency to adopt

regulations which grant to federal land managers and In-

dian governirg bodies powers to reclassify federal and In-

dian lands within their jurisdiction” (Question 2). Dur-

ing the interim period while the States are modifying

their implementation plans to comport with the 1977

Amendments, the statute itself adopts and enacts the

regulations with only minor adjustments to make them

compatible with the provisions of the 1977 Act. After

the plans are adopted, the statute, rather than the EPA

regulations, will govern.

Insofar as the regulations applied prior to August 7,

1977, even if we assume arguendy that the 1977 Amend-

ments did not constitute a ratification of the regulations

as they existed prior to enactment,‘ intervenor respond-

*We submit that the 1977 Amendments do constitute such a

ratification. Congress repeatedly reaffirmed during the considera-

tion of this legislation that the Clean Air Act of 1970 prohibited

the significant deterioration of air quality. See, e.g., Clean Air

Amendments of 1977, Senate Committee on Environment and Public

——

7

ents submit that this case should only be considered by

this Court at this time if significant actions were taken

under the regulations which, standing alone, would be

of sufficient importance to justify the grant of writs of

certiorari to consider the two questions presently before

the Court. It must be determined whether [tjhe case

has therefore lost its character as a present, live con-

troversy of the kind that must exist if we are to avoid

advisory opinions on abstract propositions of law.” Hall

v. Beals, 396 U.S. 45, 48 (1969), quoted in Diffenderfer

v. Central Baptist Church, supra, 404 U.S. at 414.

In Rice v. Sioux City Cemetery, 349 U.S. 70 (1955),

this Court considered whether a writ of certiorari should

be dismissed because of facts which emerged after it was

granted. This Court held that the facts which “must be

weighed in the exercise of that ‘sound judicial discre-

tion’” are the same as those which govern the grant

or denial of petitions for writ of certiorari. Id. at 77.

The Court explained (id. at 79):

In the words of Mr. Chief Justice Taft, speaking

for a unanimous Court: “If it be suggested that as

much effort and time as we have given to the con-

sideration of the alleged conflict would have en-

abled us to dispose of the case before us on the merits,

the answer is that it is very important that we be

consistent in not granting the writ of certiorari

except in cases involving principles the settlement

of which is of importance to the public as distin-

guished from that of the parties, and in cases where

Works, 95th Cong., Ist Sess. 28-29 (1977); Clean Air Act Amend-

ments of 1977, No. 95-294, House Committee on Interstate and

Foreign Commerce, 95th Cong., Ist Sess. 103-105; 123 Cong. Rec.

H8665 (daily edition, August 4, 1977). It also reaffirmed the

authority of EPA to issue regulations to enforce this requirement

of the 1970 statute. See, e.g., 123 Cong. Rec. H8664-8665 (daily

edition, August 4, 1977). Moreover, the 1977 Amendments, by |

adopting virtually all of the EPA regulations for the interim

period before issuance of the state implementation plans, clearly

demonstrate Congress’ approval of the EPA regulations.

8

there is a real and embarrassing conflict of opinion

and authority between the circuit courts of appeal.”

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387, 393.

In the Rice case, the Court cited an impressive list of

cases that were dismissed even after full argument. Id.

at 78.

There can be little doubt that the granting of writs of

certiorari would not be justified in the present situation.

The regulations have no independent application to ac-

tions taken after August 7, 1977. Almost no actions were

taken under the regulations prior to that date. Only one

area had been redesignated, the redesignation by the

Northern Cheyenne Tribe of their reservation as a Class

I area. 42 Fed. Reg. 40695. A number of the pollution

sources had sought, and been granted, permits but, as

far as intervenors are aware, no source had been denied

one.“

If the issue concerning the justification for this

Court's review of this case, based on the present situa-

tion, were far more doubtful, we submit that the ques-

tions in this ease should first be considered by the Court

of Appeals in light of the recent statute. Consequently,

if this Court does not simply dismiss as moot, we sub-

mit that the proper course would be to remand the cases

to the Court of Appeals for determination of the effect of

the new law on the regulations, as to the period prior to

August 7, 1977. The determination of the Court of Ap-

peals could then be considered by this Court to deter-

mine whether granting writs of certiorari would be j

tified.

f

A few challenges to the requirement of a permit are pending

in the courts.

9

CONCLUSION

For the reasons stated above, intervenor respondents

request that these consolidated proceedings either be dis-

missed as rendered moot by the passage of the Clean Air

Act Amendments of 1977 or be remanded to the Court of

Appeals for consideration in the light of the newly en-

acted legislation.

Respectfully submitted,

BRUCE J. TERRIS

NATHALIE V. BLACK

1526 18th Street, N.W.

Washington, D.C. 20036

Attorneys for Intervenor Respondents