Reply Brief — Mont. Power Co. v. U.S.E.P.A.

TTees: |

SEP 13 1977

IN THE — SOAK, JR. CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-529

MONTANA POWER COMPANY, é¢ al.,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

et al.,

Respondents.

and Nos. 76-585, 76-594, 76-603, 76-619, 76-620

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

RESPONSE BY PETITIONERS IN NOS. 76-529,

76-594 AND 76-603 TO MOTION TO DISMISS

THE WRITS OF CERTIORARI AS IMPROVIDENTLY

GRANTED OR TO VACATE AND REMAND AND TO

MOTION OF INTERVENOR RESPONDENTS

SUGGESTING MOOTNESS

[List of attorneys on inside cover]

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WILSON - Eres PRINTING Co.. Inc. - RE 7-6002 - WASHINGTON. D.C. 20001

CINCINNATI GAS & ELECTRIC

COMPANY

COLUMBUS AND SOUTHERN OHIO

ELEcTRIC COMPANY

THE DAYTON POWER AND LIGHT

COMPANY

KENTUCKY POWER COMPANY

OHIO EDISON COMPANY

OHIO POWER COMPANY

C. RANDOLPH LIGHT

Louis E. Tos!

Fuller, Henry, Hodge & Snyder

1200 Edison Plaza

300 Madison Avenue

Toledo, Ohio 43604

Petitioners in No. 76-529

ALABAMA POWER COMPANY

GEORGIA POWER COMPANY

GULF POWER COMPANY

MISSISSIPPI POWER COMPANY

JOHN P. Scott, JR.

Balch, Bingham, Baker,

Hawthorne, Williams & Ward

600 North 18th Street

Birmingham, Alabama 35203

Petitioners in No. 76-603

MONTANA POWER COMPANY

PAciFIC POWER AND LIGHT

COMPANY

PORTLAND GENERAL ELECTRIC

COMPANY

Pucet SouND Power & LIGHT

COMPANY

WASHINGTON WATER POWER

COMPANY

FRANCIS M. SHEA

RICHARD T. CONWAY

Davip BooTH BEERS

I. MICHAEL GREENBERGER

Shea & Gardner

734 15th Street, N.W.

Washington, D.C. 20005

Petitioners in No. 76-529

INDIANA-KENTUCKY ELECTRIC CORPORATION

INDIANA & MICHIGAN ELECTRIC COMPANY

INDIANA STATEWIDE RURAL ELECTRIC COOPERATIVE, INC.

INDIANAPOLIS POWER & LIGHT COMPANY

NORTHERN INDIANA PUBLIC SERVICE COMPANY

PUBLIC SERVICE COMPANY OF INDIANA, INC.

SOUTHERN INDIANA GAS AND ELECTRIC COMPANY

JERRY P. BELKNAP

JON D. NOLAND

BRYAN G. TABLER

Barnes, Hickam, Pantzer & Boyd

1313 Merchants Bank Building

Indianapolis, Indiana 46204

Petitioners in No. 76-594

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-529

MonTANA PowER COMPANY, et al.,

Petitioners,

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

et al.,

Respondents.

and Nos. 76-585, 76-594, 76-603, 76-619, 76-620

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

RESPONSE BY PETITIONERS IN NOS. 76-529,

76-594 AND 76-603 TO MOTION TO DISMISS

THE WRITS OF CERTIORARI AS IMPROVIDENTLY

GRANTED OR TO VACATE AND REMAND AND TO

MOTION OF INTERVENOR RESPONDENTS

SUGGESTING MOOTNESS

This Court granted the petitions for writ of certiorari

and consolidated the cases, on April 4, 1977, to consider

the following questions:

2

1. Whether regulations promulgated by the Envi-

ronmental Protection Agency to prevent the signifi-

cant deterioration of air quality are authorized by

the Clean Air Act?

2. Whether the Clean Air Act permits the Envi-

ronmental Protection Agency to adopt regulations

which grant to Federal land managers and Indian

governing bodies power to reclassify Federal and In-

dian lands within their jurisdiction?

Petitioners filed their briefs on the merits on or before

May 19, 1977, within the time allowed by the Court’s

Rules without extension. Respondents’ time in which

to file their briefs on the merits was extended by the

Clerk until August 22, 1977.

Instead of filing briefs on the merits, however, re-

spondents filed the motions to which this response is

directed. The Motion of Intervenor Respondents Sug-

gesting Mootness was filed on August 22, 1977, and the

Government’s Motion to Dismiss the Writs of Certiorari

as Improvidently Granted or to Vacate and Remand was

filed on August 26, 1977. For the reasons stated below,

we urge that those motions be denied and that the Court

proceed to hear and decide nese consolidated cases.*

Respondents do not attempt, in their motions, to refute

the demonstration in petitioners’ briefs that EPA’s sig-

nificant deterioration regulations are not authorized by

the Clean Air Act as it read when those regulations were

issued and when they were upheld by the Court of Ap-

peals, and thus that the court below erred in holding

that they were so authorized. Respondents contend in

essence, however, that the regulations have been ratified

by the Congress in enacting the Clean Air Act Amend-

* Pursuant to another motion by the intervenor respondents, the

Clerk has allowed them 30 days after the Court acts upon their

motion suggesting mootness in which to file their brief on the merits.

———}—

ments of 1977 (P.L. 95-95), which was approved by the

President on August 7, 1977.

It is true that Section 127(a) of the 1977 Amendments,

which is set forth in the Appendix to the Government’s

motion, amends Title I of the Clean Air Act to add a

new Part C setting forth detailed provisions (§§ 160-

169 of the Act as so amended) relating to the prevention

of significant deterioration of air quality. Even assum-

ing that those provisions are constitutional, however, they

do not immediately supersede EPA’s regulations or other-

wise generally have immediate effect. Rather, Section

168 of the amended Act provides that:

“(a) Until such time as an applicable implemen-

tation plan is in effect for any area, which plan meets

the requirements of this part to prevent significant

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 enact-

ment 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 amend-

ed so as to conform with such requirements. In the

ease of a facility on which construction was com-

menced 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 permitting

of such facility shall be in accordance with the regu-

lations for the prevention of significant deterioration

in effect prior to the enactment of the Clean Air Act

Amendments of 1977.”

Hence, until such time as a State properly adopts an

“applicable implementation plan . . . which meets the

4

requirements of’ the 1977 Amendments, the areas with-

in that State will not be subject to any requirements for

the prevention of significant deterioration unless there

are “applicable regulations under [the Clean Air] Act

prior to enactment of this part to prevent significant

deterioration of air quality in any such area... .” Of

course, the basic issue on the merits in these cases is

whether, under the Clean Air Act “prior to enactment of

the” 1977 Amendments, there validly could be any “ap-

plicable regulations . . . to prevent significant deteriora-

tion of air quality,” and the second question before the

Court is whether such regulations, even if otherwise valid,

could validly include the provisions regarding reclassifica-

tion of Federal and Indian lands.

We do not believe that it is by any means so clear as

respondents seem to assume, therefore, that the Congress

has ratified EPA’s regulations so as to moot any arguable

issue concerning their validity. And, while the “Congress

may of course do by ratification what it might have

authorized,” the legislation claimed to have effected such

ratification “must plainly show a purpose to bestow the

precise authority which is claimed.” Ex Parte Endo,

323 U.S. 283, 303 n. 24 (1944); accord, Greene v. Mc-

Elroy, 360 U.S. 474, 505 n. 30 (1959).

Some further indication that the 1977 Amendments

were not intended in effect to decide the issues before this

Court in these cases is afforded by the savings provisions

in Section 406 of those Amendments, which are set forth

in full in the Appendix hereto. Section 406(a) provides

in part that “[nJjo suit, action, or other proceeding law-

fully commenced . . . against the Administrator . . . in

his official capacity or in relation to the discharge of his

official duties under the Clean Air Act, as in effect im-

mediately prior to the date of enactment of this Act

shall abate by reason of the taking effect of the amend-

ments made by this Act.” (Emphasis added.) Respond-

-_<-

5

ents’ motions appear to amount in effect to a request

that the Court abate these proceedings, which concern

the validity of an action which the Administrator of

EPA took in his official capacity under the Clean Air

Act “as in effect immediately prior to the date of enact-

ment of” the 1977 Amendments, “by reason of the taking

effect of’’ those Amendments.

Furthermore, Section 406(b) provides in part that

“Tajll rules, regulations ... , or other actions duly is-

sued, made or taken by or pursuant to the Clean Air

Act as in effect immediately prior to the date of enact-

ment of this Act . . . shall continue in full force and

effect after the date of enactment of this Act until modi-

fied or rescinded in accordance with the Clean Air Act

as amended by this Act.” (Emphasis added.) If EPA’s

significant deterioration regulations were not “duly is-

sued, made or taken by or pursuant to the Clean Air

Act as in effect immediately prior to the date of enact-

ment of” the 1977 Amendments, but rather were contrary

to those statutory provisions as petitioners have demon-

strated in their briefs on the merits, those regulations

are not saved by Section 406 (b).

We do not mean to suggest to the Court that respond-

ents may not have arguments to support the proposition

that EPA’s regulations have been ratified by the 1977

Amendments. We have sought only to show that there

also are arguments to the contrary, so that respondents’

bare assertions that ratification has occurred should not

be accepted by the Court prior to full briefing and oral

argument of that contention. Indeed, the ratification con-

tention is simply another ground which, if sound, would

support the validity of EPA’s regulations, and thus most

appropriately could be included in respondents’ briefs on

the merits together with any other contentions they may

have as to why those regulations are valid.

We recognize that, under the statutory scheme adopted

in the 1977 Amendments, revised State implementation

plans which meet “the requirements of this part to pre-

vent significant deterioration of air quality” eventually

will be adopted. A very substantial period will elapse,

however, before that point is reached. Under Section 406

(d) (2) of the 1977 Amendments, a “State required to re-

vise its applicable implementation plan by reason of any

amendment made by this Act” has the “later of’ one

year after the enactment of the 1977 Amendments or

nine months after the promulgation by EPA “of any

regulations under an amendment made by this Act which

are necessary for the approval of such plan revision,” in

which to submit to EPA its revised implementation plan.

Section 161 of the amended Clean Air Act requires the

promulgation by EPA of regulations regarding “emis-

sion limitations and such other measures as may be neces-

sary” to be included in “each applicable implementation

plan” for the prevention of significant deterioration in

accordance with the amended Act. Hence, the deadline

for submitting revised State plans could be much more

than a year after enactment of the 1977 Amendments,

depending upon when EPA promulgates the necessary

regulations. If the validity of such regulations should be

litigated, substantial additional delay could be involved.

Moreover, submission of revised State implementation

plans will not end the matter. Upon submission, they

are subject to review and possible amendment by EPA

under Section 110 of the Clean Air Act,* and EPA’s

actions in that regard also could be subject to litigation.

Any litigation in regard to such matters could include

issues as to the constitutionality of the significant de-

terioration provisions of the 1977 Amendments as well

* Section 110 has been amended in some respects by Sections 107

and 108 of the 1977 Amendments, but the basic procedures under

which State implementation plans and revisions thereof are subject

to review and revision by EPA have not been changed.

7

as issues as to compliance with those provisions. In short,

while no one can know at this time when each of the 50

States will have a valid implementation plan which meets

the requirements of the 1977 Amendments, several years

could well elapse before that occurs, even assuming that

no constitutional problems will be involved.

Accordingly, the issues before the Court regarding the

validity of EPA’s existing regulations (including the is-

sue as to whether those regulations have been ratified)

retain very substantial importance. If the Court should

conclude that those regulations are not valid, a major

emitting facility on which construction is commenced

prior to the adoption of a valid and applicable State

implementation plan will not be subject to any require-

ments regarding the prevention of significant deteriora-

tion. In view of the continued viability and importance

of the issues before the Court in these cases, the Court

should neither regard those issues as moot nor dismiss

the writs of certiorari as improvidently granted, and

should proceed to a decision on the merits after briefing

has been completed and oral argument has been heard.

Respondents also suggest, as an alternative, that the

Court remand these cases to the Court of Appeals for

further consideration in light of the 1977 Amendments.

We submit, however, that such a course makes no sense

at all, as the Government virtually concedes (Motion, at

7). Insofar as we are aware, no one contends that the

1977 Amendments provide an additional ground for ar-

guing that EPA’s existing regulations were or are in-

valid. And, since the Court of Appeals already has held

that those regulations are valid, any views that it might

express on such a remand regarding the effect of the 1977

Amendments would be pure dicta amounting in effect to

an advisory opinion. As we see the matter, the only

situation in which it would be appropriate to remand

these cases to the Court of Appeals for consideration in

the light of the 1977 Amendments would be after this

Court decides that EPA’s regulations were not authorized

by the Clean Air Act prior to those Amendments. In that

circumstance, the Court possibly might prefer to reverse

the decision below and remand for consideration by the

Court of Appeals of respondents’ ratification contention,

although we do not urge that course and believe that the

Court should decide all the issues, including ratification,

now that these cases are before it.

If the Court should agree with respondents’ contention

that enactment of the 1977 Amendments has mooted the

issues in these cases and that “no controversy” remains

(Government Motion, at 6), then the Court should follow

its “established practice . . . to reverse or vacate the

judgment below and remand with a direction to dis-

miss.” United States v. Munsingwear, 340 U.S. 36, 39

(1950). If that is done, “the rights of all parties are

preserved” and “none is prejudiced by a decision which

in the statutory scheme was only preliminary” (id., at

40), and which, in these cases at least, may well be

erroneous. Even if the 1977 Amendments have ratified

EPA’s regulations, situations may arise in which the

validity of those regulations under the Clean Air Act

as it read prior to those Amendments could be significant.

If the “ratified” regulations should be applied to pre-

vent use of facilities on which construction commenced

between June 1, 1975 and the date of enactment of the

1977 Amendments, for example, the constitutional validity

of that action could depend upon whether or not the

regulations were valid prior to such “ratification.” If

the regulations were invalid prior to “ratification,” the

1977 Amendments could hardly be regarded as merely

“a curative statute aptly designed to remedy mistakes

and defects in the administration of justice where the

remedy can be applied without injustice,” Graham &

Foster v. Goodcell, 282 U.S. 409, 429 (1931), but rather

would appear to constitute a retroactive deprivation of

property rights without compensation and without due

process of law. See, e.g., Forbes Boat Line v. Board of

Commrs., 258 U.S. 3388 (1922). In addition, since the

time at which construction “commenced” for purposes

of the amended Act depends in part upon when “all

necessary preconstruction approvals or permits required

by Federal, State, or local air pollution emissions and

air quality laws and regulations’ have been obtained

($ 169(2) of the amended Act), the validity of the regu-

lations prior to the presumed ratification could be im-

portant in that regard. If those regulations were in-

valid, the preconstruction permit or approval which they

required in terms would not have been “necessary” prior

to enactment of the 1977 Amendments even if those

regulations otherwise would have been applicable.

Consequéntly, if this Court does not proceed to hear

and decide these cases on the merits, it should reverse

or vacate the judgment of the Court of Appeals and re-

mand the case with directions to dismiss the proceedings.

For the reasons which we have stated, however, we urge

the Court to hear and decide these cases on the merits.

Respectfully submitted,

CINCINNATI GAS & ELU&CTRIC

COMPANY

COLUMBUS AND SOUTHERN OHIO

ELECTRIC COMPANY

THE DAYTON POWER AND LIGHT

COMPANY

KENTUCKY POWER COMPANY

OHIO EDISON COMPANY

OnI0 PoweR COMPANY

«. RANDOLPH LIGHT

Louris E. Tosi

Fuller, Henry, Hodge & Snyder

1200 Edison Plaza

300 Madison Avenue

Toledo, Ohio 43604

Petitioners in No. 76-529

ALABAMA POWER COMPANY

GEORGIA POWER COMPANY

GULF POWER COMPANY

MISSISSIPPI POWER COMPANY

JOHN P. Scott, JR.

Balch, Bingham, Baker,

Hawthorne, Williams & Ward

600 North 18th Street

Birmingham, Alabama 35203

Petitioners in No. 76-603

10

MONTANA POWER COMPANY

PACIFIC POWER AND LIGHT

COMPANY

PORTLAND GENERAL ELECTRIC

COMPANY

Pucet SouND PowER & LIGHT

COMPANY

WASHINGTON WATER POWER

COMPANY

FRANCIS M. SHEA

RICHARD T. CONWAY

Davi BooTH BEERS

I. MICHAEL GREENBERGER

Shea & Gardner

734 15th Street, N.W.

Washington, D.C. 20005

Petitioners in No. 76-529

INDIANA-KENTUCKY ELECTRIC CORPORATION

INDIANA & MICHIGAN ELECTRIC COMPANY

INDIANA STATEWIDE RURAL EL&CTRIC COOPERATIVE, INC.

INDIANAPOLIS POWER & LIGHT COMPANY

NORTHERN INDIANA PUBLIC SERVICE COMPANY

PuBLic SERVICE COMPANY OF INDIANA, INC.

SOUTHERN INDIANA GAS AND ELECTRIC COMPANY

JERRY P. BELKNAP

Jon D. NOLAND

BRYAN G. TABLER

Barnes, Hickam, Pantzer & Boyd

1313 Merchants Bank Building

Indianapolis, Indiana 46204

Petitioners in No. 76-594

la

APPENDIX

SAVING PROVISION ; EFFECTIVE DATES

Sec. 406. (a) No suit, action, or other proceeding law-

fully commenced by or against the Administrator or any

other officer or employee of the United States in his of-

ficial capacity or in relation to the discharge of his official

duties under the Clean Air Act, as in effect immediately

prior to the date of enactment of this Act shall abate by

reason of the taking effect of the amendments made by

this Act. The court may, on its own motion or that of

any party made at any time within twelve months after

such taking effect, allow the same to be maintained by

or against the Administrator or such officer or employee.

(b) All rules, regulations, orders, determinations, con-

tracts, certifications, authorizations, delegations, or other

actions duly issued, made, or taken by or pursuant to

the Clean Air Act as in effect immediately prior to the

date of enactment of this Act, and pertaining to any func-

tions, powers, requirements, and duties under the Clean

Air Act, as in effect immediately prior to the date of

enactment of this Act, and not suspended by the Ad-

ministrator or the courts, shall continue in full force

and effect after the date of enactment of this Act until

modified or rescinded in accordance with the Clean Air

Act as amended by this Act.

(c) Nothing in this Act nor any action taken pursuant

to this Act shall in any way affect any requirement of

an approved implementation plan in effect under section

110 of this Act or any other provision of the Act in effect

under the Clean Air Act before the date of enactment

of this section until modified or rescinded in accordance

with the Clean Air Act as amended by this Act.

(d) (1) Except as otherwise expressly provided, the

amendments made by this Act shall be effective on date

of enactment.

2a

(2) Except as otherwise expressly provided, each State

required to revise its applicable implementation plan by

reason of any amendment made by this Act shall adopt

and submit to the Administrator of the Environmental

Protection Administration such plan revision before the

later of the date—

(A) one year after the date of enactment of this

Act, or

(B) nine months after the date of promulgation

by the Administrator of the Environmental Protec-

tion Administration of any regulations under an

amendment made by this Act which are necessary

for the approval of such plan revision.