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

Court, U.S,

IN THE

Supreme Court of the United

OcToBER TERM, 1977 SEP 16 1977

No. 76-529

Montana Power CoMPANY, ET AL., Petit

om MGR eoDaK. IR, CLER

UNITED StaTES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-585

AMERICAN PETROLEUM INSTITUTE, ET AL., Petitioners

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-594

INDIANA-KENTUCKY ELECTRIC CORPORATION, ET AL.,

Petitioners

V.

UNITED STaTES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-603

ALABAMA POWER COMPANY, ET AL., Petitioners

V.

UNITED StaTES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-619

Utran Power AND Licut CoMPANY, ET AL., Petitioners

Vv.

UNITED STaTES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-620

WESTERN ENERGY SUPPLY AND TRANSMISSION

ASSOCIATES, ET AL., Petitioners

Vv.

Unttrep States ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

PETITIONERS IN NO. 76-619

RESPONSE TO MOTION TO DISMISS THE WRITS

OF CERTIORARI AS IMPROVIDENTLY GRANTED OR

TO VACATE AND REMAND AND TO MOTION OF

INTERVENOR RESPONDENTS SUGGESTING

MOOTNESS

{Counsel Listed on Inside Cover]

Pamss or Braow S. Apams Painting, Inc., WasHiNnoton, D.C.

CounseL For PETITIONERS

Utan Power & Licht ComPANY

Pusuic Service Company oF COLORADO

Cotorapo-UTe Exectric Association, INc.

PLATTE River Power AUTHORITY

CHEYENNE LIGHT, FvEL AND Power COMPANY

Gerry LEVENBERG Uran Power & Light Company

Tuomas A. Karon

Sioney G. Bavucom

LEONARD, COHEN AND GETTINGS Vert R. TopHam

1700 Pennsylvania Avenue, N.W.

Washington, D. C. 20006 P. O. Box 899

Salt Lake City, Utah 84110

Pusuic Servic—E COMPANY OF COLORADO

CHEYENNE LIGHT, FvuEL AND Power COMPANY

Bryant O’DONNELL PLaTTe River Power AUTHORITY

Ketiy, STANSFIELD & O'DONNELL Moses, WItTeMYER and Harrison, P.C.

550 Fifteenth Street 250 Arapahoe Avenue

Denver, Colorado 80202 Boulder, Colorado 80302

Co.Lorapo-U Te EuLectric Association, Inc.

Girts KRUMINS

P.O. Box 1149

Montrose, Colorado 81401

INDEX

I.

THereE Is a Continuinc aNp AcTUAL CONTROVERSY

Tuat NecestTaTes RESOLUTION ON THE MERITS OF THE

Issues Upon Wuicu tHe Court GRANTED THE PETI-

Page

TIONS FOR Writs OF CERTIORARI .............---+45: 4

II.

DIsMISSAL OF THE Writs aS IMPROVIDENTLY GRANTED

ee a ice seeeeeeel caceeeseeesa 11

tt LON ees di Eid ee cee es ceo 15

TABLE OF AUTHORITIES

CasEs:

Cook v. Hudson, 429 U.S. 165 (1976) ............. 12,13

District of Columbia v. Costle, No. 74-1013, (D.C. Cir.

SE PCE cciccbieeszcevecedusdsnecececes

Environmental Protection Agency v. Brown, — U.S.

i > PP EEEEED cécccccssccecesesces ses 7

Federal Trade Commission v. Goodyear Tire & R.

' 8 8 BPP TT ree 10

Furness, Withy & Co. v. Yang-Tsze Insurance Asso-

ciation, 242 U.S. 430 (1917) ...............06- 11

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).. 12

Kleppe v. Delta Mining, Inc., 423 U.S. 403 (1976)... 9

The Monrosa v. Carbon Black Export, Inc., 359 U.S.

i rrr SPEER PORE rer 12

National Coal Operators’ Ass’n. v. Kleppe, 423 U.S.

gr rer 8

Powell vy. McCormack, 395 U.S. 486 (1969) ......... 8

Preiser v. Newkirk, 422 U.S. 395 (1975) ............ 13

Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

DEED. + cecteceud debe hecindcohetnaeiane ss 12,13

Rogers v. Missouri Pacific Railroad Co., 352 U.S. 521

SEE hie Wied nadanheneudkdstdle the ubeaseonn 11

Super Tire Engineering Company v. McCorkle, 416

RR I ree 9

Train v. City of New York, 420 U.S. 35 (1975) ..... 10

United States v. Munsingwear, Inc., 340 U.S. 36

gigs Goin cna tard ie araag 13

ii Table of Authorities Continued

Page

Utah Power & Light Co. v. Envirenmental Protection

Agency, 553 F.2d 215 (D.C. Cir. 1977) ......... 5

Utah Power & Light Co. v. Environmental Protection

Agency, Civ. No. C-77-0063 (D. Ut.)............ 4,7

STaTUTEs AND REGULATIONS:

Clear Air Act Amendments of 1977, Pub. L. 95-95, 91

ES SS ear passim

RR a ae een ree re 5

EES cccesevdiwesbaesuee kabesecees 6

DET Sou cN des ad tak cuueneeattads U6 ctieeciwas 10

I ils Cui ee ge bad aie an oe aS 10

ES ee ee ee ee ae 5

a 6

rr rere 5

MISCELLANEOUS:

H.R. Rep. No. 95-294, 95th Cong., Ist Sess. (May 12,

SD -Natesdekubenes dinetddewecsueeabuncusives 9

Ss. —_ No. 95-127, 95th Cong., 1st Sess. (May 10,

DEE: Wan Miuk Neds chseRe dese nndeds ces Goxendess 10

42 Fed. Reg. 40695 (Aug. 11, 1977) ................ 7

42 Fed. Reg. 40696 (Ang. 11, 1977) ................ 8

‘*Prevention of Significant Deterioration of Air Qual-

ity: A Western a ¢ U.S. Environmental

Protection Agency, Denver, Colorado, presented

at the 70th Annual Meeting of the Air Pollution

Control Association, Toronto, Ontario, Canada

SPU EEN 6 bb Whbd 0003 6c cocdGedeseesaos 8

IN THE

Supreme Court of the United States

OctToBEeR TERM, 1977

No. 76-529

MonTANA PowER CoMPANY, ET AL., Petitioners

Vv.

Untrep StTaTES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-585

AMERICAN PETROLEUM INSTITUTE, ET AL., Petitioners

Vv.

Unirep STaTES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-594

INDIANA-KENTUCKY ELECTRIC CORPORATION, ET AL.,

Petitioners

Vv

Unirep States EN\ %NMENTAL PROTECTION

AGENvY, ET AL.

No. 76-603

ALaBAMA PowER CoMPANY, ET AL., Petitioners

Vv

Unirep States ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-619

Utan Power AND Licut CoMPANY, ET AL., Petitioners

Vv.

UnrtTep STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

No. 76-620

WESTERN ENERGY SUPPLY AND TRANSMISSION

ASSOCIATES, ET AL., Petitioners

V.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL.

On Writs of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

PETITIONERS IN No. 76-619

RESPONSE TO MOTION TO DISMISS THE WRITS

OF CERTIORARI AS IMPROVIDENTLY GRANTED OR

TO VACATE AND REMAND AND TO MOTION OF

INTERVENOR RESPONDENTS SUGGESTING

MOOTNESS

Petitions for writs of certiorari were granted by the

Court on April 4, 1977, to determine whether the pre-

vention of deterioration regulations promulgated by

the Environmental Protection Agency were authorized

by the Clean Air Act and, if so, whether such regula-

3

tions could validly include the provisions concerning

reclassification of Federal and Indian lands. Subse-

quent to the filing of petitioners’ briefs on the merits

on or before May 19, 1977, amendments to the Clean

Air Act were enacted. Pub. L. 95-95, 91 Stat. 685 (Aug.

7, 1977) (hereinafter 1977 Amendments). Respond-

ents, the Environmental Protection Agency, et al.

(EPA), and intervenor respondents, Sierra Club, ct

al., now move to dismiss these consolidated cases. The

intervenor respondents contend that the amendments

“dispose of any doubt as to [the two issues before the

Court]. Consequently, [the intervenor respondents

argue] the case before this Court is essentially moot’’

(Motion of Intervenor Respondents Suggesting Moot-

ness, p. 1, emphasis supplied). The federal respond-

ents argue that “the controversy as to the issues on

which certiorari was granted has been effectively

mooted by the new legislation. . .” (Motion to Dismiss

the Writs of Certiorari As Improvidently Granted Or

to Vacate and Remand, p. 7) (hereinafter EPA Mo-

tion to Dismiss). For the reasons set forth below we

urge the Court to deny both motions and to hear and

decide these consolidated cases. We think it clear that

the issues before this Court are not moot. Events have

occurred and continue to occur under the regulations

as promulgated and presented before this Court that

demonstrate that there remains a “live’’ controversy.

Thus, it remains of continuing importance that the

Court decide the merits of the issues presented.’

Petitioners in Nos. 76-529, 76-594 and 76-603 have filed with the

Court a response to respondents’ and intervenor respondents’ mo-

tions to dismiss. We endorse that response. Arguments made in that

response will not be repeated here.

+

L

THERE IS A CONTINUING AND ACTUAL CONTROVERSY

THAT NECESSITATES RESOLUTION ON THE MERITS OF THE

ISSUES UPON WHICH THE COURT GRANTED THE PETITIONS

FOR WRITS OF CERTIORARI.

The Court, in granting the petitions for writs of

certiorari, limited the questions to:

1. Whether regulations promulgated by the En-

vironmental Protection Agency to prevent the

significant deterioration of air quality are au-

thorized by the Clean Air Act.

2. Whether the Clean Air Act permits the En-

vironmental Protection Agency to adopt regu-

lations which grant to Federal land managers

and Indian governing bodies power to reclassify

Federal and Indian lands within their jurisdic-

tion.

No matter what effect the 1977 Amendments have sub-

sequent to August 7, 1977—the date of their enact-

ment—the Amendments do not address the issues be-

fore the Court. The questions remain whether when

and as promulgated the regulations were statutorily

authorized. Resolution of those issues remains impor-

tant, as demonstrated by events that have occurred and

continue to occur under the challenged regulations.

As an example, one of the petitioners in No. 76-619,

Utah Power & Light Co. and respondent EPA are

presently engaged in a separate suit, Utah Power &

Light Co. v. Environmental Protection Agency, Civ.

No. C-77-0063 (D. Ut.), which involves the application

of the challenged regulations to three steam electric

power plants which commenced construction prior to

5

June 1, 1975." Respondent EPA has ruled that certain

actions regarding those three units have occurred since

June 1, 1975 * which constitute ‘‘modifications’’, as that

term is defined in the regulations.‘

While petitioner Utah Power & Light Co. of course

is not now seeking to argue the merits of that case be-

fore this Court, the above facts are important in licht

of respondents’ statement that ‘“‘the reculations them-

selves, as sustained by the court of appeals, remain in

effect except to the extent superseded by the 1977

Amendments’’ (EPA Motion to Dismiss, p. 7: emnha-

sis supplied). As the intervenor respondents recog-

nize, ihe 1977 ‘‘amendments modify the definition con-

tained in the regulations for the commencement of

construction (See. 164(b)) [sic.], a provision which

governs which major new sources will be subject to re-

view under the regulations and the statute’’ (Motion

of Intervenor Respondents Suggesting Mootness, p. 5

n.2). Section 168(b) provides that ‘‘[i]n the case of a

facility on which construction was commenced in ac-

cordance with this definition after June 1, 1975, and

prior to the enactment of the Clean Air Act Amend-

* The validity of the regulations is not at issue in that suit. In

fact, Utah Power & Light Co. could not have challenged the validity

of the regulations in that suit. See Utah Power & Light Co. v. En-

vironmental Protection Agency, 553 F.2d 215, 218-19 (D.C. Cir.

1977}.

*40 C.F.R. §52.21(d)(1) of the regulations states that ‘‘any

new or modified stationary source .. . which has not commenced

construction or modification prior to June 1, 1975’ is subject to

the review of new sources provisions of the regulations.

* See EPA Motion for Summary Judgment, p. 2, Civ. No. C-77-

0063 (D. Ut.). ‘‘Modification’’ is defined in 40 C.F.R. § 52.01(d).

EPA is seeking to require Utah Power & Light Co. to add an esti-

mated $75 million worth of scrubber equipment to the three steam

electric power plants.

6

ments of 1977, the review and permitting of such fa-

cility shall be in accordance with the regulations for

the prevention of significant deterioration .. .” (em-

phasis supplied). ‘‘Commenced”’ is defined by the 1977

Amendments as a major emitting facility which ‘‘has

obtained all necessary preconstruction approvals or

permits ... and either has (i) begun, or caused to be-

gin, a continuous program of physical on-site con-

struction of the facility or (ii) entered into binding

agreements or contractual obligations . . .”’ § 169(2)

(A). The challenged regulations—in contrast to the

definition in the 1977 Amendments—define ‘‘com-

menced”’ as ‘‘a continuous program of construction or

modification’’ § 52.21(b)(7) (emphasis supplied). In

short, the ‘‘modification’’ of a source is no longer sub-

ject to the permit provisions.

However, in its most recent pleading in the Utah

district court case, filed September 6, 1977,° EPA

continues to advocate that Utah Power’s three steam

electric power plants at issue must obtain permits

under the regulations because of alleged ‘‘modifica-

tions.’’ Absolutely no reference is made in that plead-

ing to the 1977 Amendments. Since the definition of

‘‘eommenced’’ in the 1977 Amendments alters the defi-

nition of ‘‘commenced’’ in the regulations, EPA’s

pleading in that case conflicts with its representations

made in this Court in its Motion to Dismiss, filed

August 26, 1977, ‘‘that if such regulations would be

inconsistent with specified sections of the new statute,

the regulations shall be deemed amended to conform

with the requirements of those sections’? (EPA Mo-

* EPA Reply Memorandum in Support of Motion for Summary

Judgment and Motion for a Protective Order, Civ. No. C-77-0063

(D. Ut.).

7

tion to Dismiss, p. 5) (emphasis supplied). EPA’s

continued enforcement of the challenged regulations

as promulgated, and unamended by the 1977 Amend-

ments, belies its argument that the issues in these con-

solidated cases are now moot. So long as EPA contin-

ues to enforce the regulations at issue here, this case

remains a “‘live’’ controversy.

This situation is noticeably different from the one

existing in Environmental Protection Agency Vv.

Brown, —— U.S. ——, 97 S.Ct. 1635 (1977). In En-

vironmental Protection Agency v. Brown, the govern-

ment admitted that the contested regulations were in-

valid unless modified in certain respects. The Court

therefore vacated the courts of appeals judgments and

remanded for consideration of mootness. On remand,

the Court of Appeals for the District of Columbia

found the controversy moot. Not only had the con-

tested regulations been modified, but ‘‘[t]he Admin-

istrator state[d] that he [was] not enforcing the reg-

ulations.’’ District of Columbia v. Costle, No. 74-1013,

slip op. at 4 (D.C. Cir. Aug. 19, 1977). In contrast, in

Utah Power & Light Co. v. EPA, supra, the Adminis-

trator continues to enforce the challenged regulations

that are before this Court.

Another example of the continuing importance of

the issues in this case is a redesignation that occurred

prior to the enactment of the 1977 Amendments. On

August 5, 1977, the Northern Cheyenne Indian Reser-

vation was redesignated from a Class II area to a

Class I area pursuant to the regulations. 42 Fed. Reg.

40695 (Aug. 11, 1977). Petitioners discussed at length

in their brief the land use impact of such redesigna-

tion, pointing out that a redesignation can affect land

8

use planning 60-100 miles outside of the redesignated

area. Brief for the Petitioners in No. 76-619, pp. 39-

44. In fact, the respondent EPA’s ruling approving

the Northern Cheyenne redesignation specifically noted

that ‘‘the construction of electric power plant units

known as Colstrip 3 & 4... as proposed, would violate

the Class I increments for SO: on the reservation .. .”’

42 Fed. Reg. 40696 (Aug. 11, 1977). In a paper re-

cently presented by EPA officials at the Annual Meet-

ing of the Air Pollution Control Association, it was

noted that the redesignation “could have a significant

impact on proposed future development along the

eastern boundary of [the] Crow reservation. .. .’’*

Thus, the effect of the Northern Cheyenne Indian

Reservation redesignation will be a continuing one.

The Court has described mootness as ‘‘when the

issues presented are no longer ‘live’ or the parties lack

a legally cognizable interest in the income.’’ Powell

v. McCormack, 395 U.S. 486, 496 (1969). The issues

upon which the petitions for writs of certiorari were

granted remain ‘“‘live’’ and petitioners maintain a

legally cognizable interest in the outcome as the above

actions indicate.

That the Court should decide the merits in this case

is supported by recent decisions. In National Coal

Operators’ Ass’n. v. Kleppe, 423 U.S. 388 (1976), the

Secretary of Interior had issued certain civil penalty

assessment regulations. Coal mine operators argued

***Prevention of Significant Deterioration of Air Quality: A

Western Viewpoint’’ 8, U.S. Environmental Protection Agency,

Denver, Colorado (emphasis supplied), presented at the 70th An-

nual Meeting of the Air Pollution Control Association, Toronto,

Ontario, Canada (June 20-24, 1977).

~.S

9

that the regulations violated the Federal Coal Mine

Health and Safety Act of 1969, 83 Stat. 742, 30 U.S.C.

§ 801, et seg. Subsequent to initiation of the suit, the

regulations were reissued. Respondents, mine opera-

tors in the companion case, Kleppe v. Delta Mining,

Inc., 423 U.S. 403 (1976), argued that the case was

moot. This Court rejected that argument, inter ala,

‘‘heeause there are assessments under the contested

regulations awaiting enforcement”. 423 U.S. at 393-

394 n. 4.

Similarly, EPA is seeking to apply the challenged

regulations to certain steam electric power plants un-

der construction. As this Court has recognized, a case

is not moot when ‘‘the challenged governmental activ-

ity in the present case is not contingent, has not evap-

orated or disappeared, and, by its continuing and brood-

ing presence, casts what may well be a substantial ad-

verse effect on the interests of the petitioning parties.”’

Super Tire Engineering Company v. McCorkle, 416

U.S. 115, 122 (1974).

Furthermore, Congress—which was aware of this

litigation "—included in the 1977 Amendments a sav-

ings clause that provides:

™The House Committee Report accompanying the bill to amend ©

the Clean Air Act states :

These regulations were immediately challenged by both

industry and environmental groups. These suits are still pend-

ing and will likely take several more years to resolve. H.R.

Rep. No. 95-294, 95th Cong., Ist Sess, 105 (May 12, 1977).

And the analogous Senate Committee Report states :

The Circuit Court of Appeals gave broad support to existing

EPA regulations in its decision. The case is now on appeal to

the Supreme Court, and has been accepted for review. The

earliest this case could be heard would be in the fall of the

10

No suit, action, or other proceeding lawfully

commenced by or against the Administrator...

shall abate by reason of the taking effect of the

amendments made by the Act. §406(a) (empha-

sis supplied).

This Court has upheld the validi’, of savings clauses

and ruled that cases pending on the date of enactment

of a particular statute would not be affected where

there was an appropriate savings clause. See Train v.

City of New York, 420 U.S. 35, 41 n. 8 (1975); Fed-

eral Trade Commission v. Goodyear Tire & R. Co., 304

U.S. 257 (1938). Thus, contrary to respondents’ asser-

tions, the ‘‘taking effect’’ of the 1977 Amendments

does not abate these cases.

Subsection (b) of the savings provision is further

evidence that Congress did not intend the 1977 Amend-

ments to moot these cases. Section 406(b) provides

that ‘‘[a]ll rules, regulations . . . 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 not suspended by the

Administrator or the courts, shall continue in full

force and effect .. . until modified or rescinded in ac-

cordance with the Clean Air Act as amended by this

Act’’ (emphasis supplied). Thus, it remains for the

Court to determine whether the regulations were

‘“‘duly’’ issued.

——

1977 term of the Supreme Court. S. Rep. No. 95-127, 95th

Cong., Ist Sess. 8 (May 10, 1977).

There is nothing in the legislative history that indicates Congress

intended or foresaw that the 1977 Amendments would moot the

eases presently before the Court.

I ts -

11

Il.

DISMISSAL OF THE WRITS AS IMPROVIDENTLY GRANTED

IS NOT WARRANTED.

Respondents contend that ‘‘[i]n light of [the 1977

Amendments] .. . the questions upon which this Court

granted certiorari are no longer appropriate for its

consideration.’’ Respondents seek a dismissal of ‘‘the

writs on the ground that the subsequent legislation

[the 1977 Amendments] has rendered the grants im-

provident’? (EPA Motion to Dismiss, p. 6, 7). How-

ever, no matter what effect the 1977 Amendments have

on the contested regulations, that effect could not war-

rant a dismissal of the writs as improvidently granted.

A dismissal of a writ as improvidently granted is

warranted where circumstances that existed at the time

of granting the petition for a writ of certiorari were

not adequately brought to the Court’s attention. Had

those circumstances been adequately brought to the

Court’s attention ‘‘the writ would not have been al-

lowed.’’ Furness, Withy & Co. v. Yang-Tsze Insurance

Association, 242 U.S. 430, 433 (1917). The occasional

need to dismiss a writ as improvidently granted has

been previously explained. With the large ‘‘volume of

certiorari business, not to mention the remainder of

the Court’s business, the initial decision to grant a pe-

tition for certiorari must necessarily be based on a

limited appreciation of the issues in a case. .. . The

course of argument and the briefs on the merits may

disclose that a case appearing on the surface to war-

rant a writ of certiorari does not warrant it... .”’

Rogers v. Missouri Pacific Railroad Co., 352 U.S. 521,

527-528 (1957) (Frankfurter dissenting opinion). In

light of ‘‘cireumstances, which ‘were not . . . fully ap-

12

prehended at the time certiorari was granted’... the

writ of certiorari will be dismissed as improvidently

granted.’’ The Monrosa v. Carbon Black Export, Inc.,

359 U.S. 180, 183 (1959).

Respondents have demonstrated no circumstances

that justify a dismissal of these writs as improvidently

granted. Indeed, in their response to the petitions for

writs of certiorari, respondents noted that bills had

been introduced in the 95th Congress to amend the

Clean Air Act. (Memorandum for the Federal Re-

spondents, p. 8). Respondents’ basis for a dismissal is

not related to relevant undisclosed circumstances that

existed when the petitions for writs of certiorari were

granted, but rather is founded on circumstances that

have occurred subsequent to the granting of the writs.

The two cases, Rice v. Sioux City Memorial Park

Cemetery, 349 U.S. 70 (1955), and Cook v. Hudson,

429 U.S. 165 (1976), relied upon by respondents for

dismissal are readily distinguishable from the present

cases. Rice involved a constitutional challenge to a con-

tract clause. A state statute was enacted prior to the

filing of the petition for a writ of certiorari. The

“‘statute that beiatedly came to the Court’s attention

in Rice reached precisely the same situations that

would have been covered by a decision in this Court

sustaining the petitioner’s claim on the merits.’’ Jones

v. Alfred H. Mayer Co., 392 U.S. 409, 417-418 n. 21

(1968). The Court remarked that “‘[h]ad the statute

been properly brought to our attention and the case

thereby put into proper focus’’ certiorari would have

been denied. 349 U.S. at 76. Accordingly, the Court

dismissed the writ as improvidently granted.

The Court in Cook v. Hudson, 429 U.S. 165, granted

a petition for a writ of certiorari challenging the con-

13

stitutionality of the termination of a teacher by a

Mississippi public school board. Subsequent to the

termination but prior to the filing of the petition for

a writ of certiorari, a Mississippi statute was passed

that prohibited the type of school board action that

took place. In light of that statute and a case decided

subsequent to the time of granting the writ, the Court

dismissed the writ as improvidently granted.

The writs were dismissed as improvidently granted

in Rice and in part in Cook because of circumstances

existing at the time of granting the petitions for the

writs. In the present cases, respondents and intervenor

respondents seek dismissal solely because of circum-

stances occurring subsequent to the time of granting

the petitions for writs.

Although respondents contend that the writs were

improvidently granted, they argue that “‘the contro-

versy as to the issues on which certiorari was granted

has been effective'y mooted by the new legislation’’

(EPA Motion to Dismiss, p. 7; emphasis supplied).

If indeed dismissal is warranted—which petitioners

contend it is not—then these proceedings should be

dismissed as moot.’ Should the Court dismiss the writs

as moot, petitioners respectfully request that in ac-

cordance with its long-standing practice it reverse or

vacate the lower court judgment and remand with a

direction to dismiss. See Preiser v. Newkirk, 422 U.S.

395 (1975); United States v. Munsingwear, Inc., 340

U.S. 36, 39 n. 2 (1950) and cases cited therein. In that

manner ‘‘the rights of all parties are preserved; none

is prejudiced by a decision which in the statutory

scheme was only preliminary.’’ Jd. at 40.

*Intervenor respondents have moved to dismiss as moot. See

Motion of Intervenor Respondents Suggesting Mootness.

14

Intervenor respondents suggest that an alternative

course of action for this Court is 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” (Motion of Intervenor Respond-

ents Suggesting Mootness, p. 8). Respondents believe

“that little purpose would be served’’ by a remand.

(EPA Motion to Dismiss, p. 7). Similarly, petitioners

believe that such a remand is inappropriate. The lower

court has already ruled that the regulations were au-

thorized by the existing law. The 1977 Amendments do

not address the issue of whether the regulations were

authorized at the time of issuance. It is that issue which

is before the Court. To remand to the court of appeals

as intervenor respondents suggest could result in that

court rendering an advisory opinion.

15

CONCLUSION

For the foregoing reasons, petitioners request the

Court to deny respondents’ and intervenor respond-

ents’ motions to dismiss. At the very least, neither of

those motions should be granted by the Court prior to

full briefing on the merits and oral argument. Should

the Court grant the motions to dismiss, the judgment

of the lower court should be reversed or vacated and

remanded with a direction to dismiss, in accordance

with the Court’s established practice.

Respectfully submitted,

CounsEeL For PErITIONERS

Utan Power & Licut CoMPANY

Pus.ic Service CoMPaNy oF COLORADO

Co.torapo-UTe Execrric Association, INc.

PuLaTTe River Power AUTHORITY

CHEYENNE LIGHT, FuEL aNnD Power CoMPANY

Gerry LEVENBERG Uran Power & Licht CoMPANY

Tuomas A, Karo. .

Sipney G. Bavcom

LEONARD, COHEN AND GETTINGS Vert R. TopHam

1700 Pennsylvania Avenue, N.W.

Washington, D. C. 20006 P. O. Box 899

Salt Lake City, Utah 84110

Pusuic Service Company OF COLORADO

CHEYENNE Liont, Fven anp Power CoMPANY

Bryant O'DONNELL PuattTe River Power AUTHORITY

Keuuy, STansFiELp & O'DONNELL Moses, WITTEMYER and Harrison, P.C.

550 Fifteenth Street 250 Arapahoe Avenue

Denver, Colorado 80202 Boulder, Colorado 80302

Co.orapo-Ute Exectric Association, INC.

Girts KruMIns

P.O. Box 1149

Montrose, Colorado 81401