# Petition — Indiana-Kentucky Elect. Corp. v. U.S.E.P.A.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 430 U.S. 953

## Text

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| Sugeeme Sourt, U. &
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Supreme Court of the United States “° *

i OctToBer TERM, 1976

—i6-5944

No.

INDIANA-KENTUCKY ELECTRIC CORPORATION,
INDIANA & MICHIGAN ELECTRIC COMPANY,

~~ STATEWIDE RURAL ELECTRIC COOPERATIVE,
INDIANAPOLIS POWER & LIGHT COMPANY,

NORTHERN INDIANA PUBLIC SERVICE COMPANY,
PUBLIC SERVICE COMPANY OF INDIANA, INC., anp
SOUTHERN INDIANA GAS AND ELECTRIC COMPANY,

Petitioners,
vs.
UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY,
SIERRA CLUB,

METROPOLITAN WASHINGTON COALITION FOR CLEAN
NEW MEXICO CITIZENS FOR CLEAN AIR AND WATER, anp
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

Jerry P. BELKNAP
Jon D. NOLAND
BrYAN G. TABLER
1313 Merchants Bank Building

Indianapolis, Indiana 46204

Attorneys for Petitioners

a

BARNES, HiCKAM, PANTZER & Boyp
1313 Merchants Bank Building

ae’ PAGE

EE ee ee ee 2
Nee es niiiishdReene 2
i ck os willis 2
Statute and Regulations Involved.................... 3
RS ee 3
SE ee 5
Reasons for Granting the Writ ..................... 4

The Decision Below Decided Important Questions of
Federal Law Which Should Be Expressly Settled by

Ph adnneedencodedddcdde cactcceeds o6< 6
The First Question—Is Section 110(a)(2) the
Measure for State Implementation Plans? .... 6
The Second Question—The Procedure for EPA's
Revision of State Implementation Plans... .. .. 11
SD ncbeddnnsddnnendctcccncdccccecsivece: 15
Appendix I—Opinion of the Court of Appeals......... Al
Judgment of the Court of Appeals................... A47
Order of Court of Appeals for the Seventh Circuit. ...... AS3
Appendix Il—Relevant Portions of Clean Air Act, 42
le RY An bobetincscaccdcdecs cbdcce ASS

TABLE OF AUTHORITIES

Cases
Dayton Power & Light Co. v. EPA, 520 F. 2d 703 (6th
ey -Peens6e6deceeesbsenen ed cneaeeeaae 15
Hancock v. Train, U.S. _.., 44 U. S. L. W. 4767
Se Hs Bee ode cbacensbebscbbebaknabainnau 8

Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D. D. C.
1972), affd mem. D. C. Cir. No. 72-1528 (Nov.
1, 1972), affd by an equally divided vote sub nom.,

Fri. v. Sierra Club, 412 U. S. 541 (1973) ........ passim
Train v. Natural Resources Defense Council, 421 U. S. 60
Sebadendtseendenstecdunstandadimesvieb ule passim
Union Electric Co. v. EPA, 5 you .» 44 U. S.
ies We See CRD BR, BIGED ccccccvccecdseccetss 8,9
United States Statutes
Be Ue GB & Se Shc cetsve ic be ee eiibeccc 2
Clean Air Act
es Gee ie Ok > en acouncondedveceacs 13,14
ee Ge ee Ob Ge in nc cc dccccesscceec 14
SS Bae Se ie Oe Ge © ME cccccccccccecesoce 5
2S Cae Ge ee Oe Ge ie Os ecdccecccceecs passim
© OER, GO. BS. 8 BIG. occ cccccccccvccete 12
D> Ba Ge ee Gy Be eh be dc ccsicvcoscde 12
SB SED, GU. & G BOG, ccccccvctocecoscccs 12
§ 114, 42 U. S. ee 12
> Bae Ge ae Os Gy BH A ockcccccéccccccce 12

§ 307(b)(1), 42 U. S.C. § 1857h-5(b)(1)..... 3,4, 14

iii

Congressional Authority

House Comm. on Interstate and Foreign Commerce, Clean
Air Act Amendments of 1976, H. R. Rep. No. 94-1175,

94th Cong., 2nd Sess. 120 (1976)................. 7,8
The Federal Register
37 Fed. Reg. 23836 (Nov. 9, 1972)................. 4
38 Fed. Reg. 18986 (July 16, 1973)................ 4
39 Fed. Reg. 31000 (August 27, 1974) ........... 4
39 Fed. Reg. 42509 (Dec. 5, 1974)................ passim
39 Fed. Reg. 42513 (Dec. 5, 1974)......... octane’ 13
40 Fed. Reg. 2802 (Jan. 16, 1975)................. 3,4
40 Fed. Reg. 25004 (June 12, 1975)................ 3,4
40 Fed. Reg. 42011 (Sept. 10, 1975)................ 3,4
41 Fed. Reg. 35676 (Aug. 24, 1975) ............ 7
Miscellaneous

U. S. Bureau of the Census, Statistical Abstract of the
United States: 1975 (96th ed.) Washington, D. C.,
WP ME MP Ob eacncndcccdccccdococeceeéccece 7

= Tt) eS | oe oe

Supreme Court of the United States

Octoser Term, 1976

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL.,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

This petition is filed on behalf of seven electric utility com-
panies which own, operate, and from time to time construct or
modify coal-fired steam electric generating stations in the State
of Indiana. The petitioning utilities are: Indiana-Kentucky
Electric Corporation, Indiana & Michigan Electric Company,
Indiana Statewide Rural Electric Cooperative, Inc., Indianapolis
Power & Light Company, Northern Indiana Public Service Com-
pany, Public Service Company of Indiana, Inc., and Southern
Indiana Gas and Electric Company.

2

Respondents are the U. S. Environmental Protection Agency
which issued the regulations reviewed below, Sierra Club, Metro-
politan Washington Coalition for Clean Air, New Mexico
Citizens for Clean Air and Water, and Steven Winter. The
latter four parties intervencd helow as petitioners for review
of the regulations.

The petitioners pray that a Writ of Certiorari issue to review
the judgment of the Court of Appeals for the District of
Columbia Circuit entered in the above cause on August 2,
1976.

OPINIONS BELOW

The opinion of the Court of Appeals for the District of
Columbia Circuit has not yet been officially reported, but is
unofficially reported at 9 ERC 1129, and is included herein
at Appendix 1

The order of the Court of Appeals for the Seventh Circuit
transferring petitioners’ review proceeding is not reported, but
is set forth in Appendix I at AS3-A54.

The judgment of the Court of Appeals was entered on August
2, 1976, and is set forth at Appendix I, A47-A52. The juris-
diction of this Court is invoked under 28 U. S. C. § 1254(1).

QUESTIONS PRESENTED
1. Whether State implementation plans which meet the
eight criteria of Clean Air Act Section 110(a)(2) are also re-
quired by the Clean Air Act to prohibit significant deterioration
of air quality. z

3

2. Assuming plans must prohibit significant deterioration,
whether the Environmental Protection Agency may, under
Clean Air Act Sections 110(c) and 110(d), promulgate identical
regulations revising all 55 implementation plans without accord-
ing the States the opportunity to develop their own plan revisions
and without public hearings within the States.

A subsidiary question is whether petitioner Indiana electric
utilities are entitled to have revisions to the Indiana implementa-
tion plan so dictated reviewed by the Court of Appeals for the
Seventh Circuit as provided by Section 307(b)(1) of the Clean
Air Act.

STATUTE AND REGULATIONS INVOLVED

The provisions of the Clean Air Act Amendments of 1970,
42 U. S. C. §§ 1857 ef seq., primarily involved are set forth
in Appendix II hereto.

The regulations under review, 40 C. F. R. §§ 52.01(d),(f)
and 52.21 (1975), as amended, were promulgated by the U. S.
Environmental Protection Agency as amendments to all state

implementation plans under the Clean Air Act. They were
published in the Federal Register, together with an explanatory
preamble, on December 5, 1974 (39 F. R. 42509), and were
revised on January 16, 1975 (40 F. R. 2802), June 12, 1975
(40 F. R. 25004) and September 10, 1975 (40 F. R. 42011).
The regulations thus promulgated are set forth as Appendix III
hereto.

STATEMENT OF THE CASE.

This case follows in the wake of the Court's four-to-four
division three years ago in Fri v. Sierra Club.‘ The incon-
clusiveness of the Court's action there left in force a district

i

, Club v. 253 (D. D.C. 1972),
i ae. Se (D.C. Cir. ), off'd by
. Sierra Club, 412 U. S$. 541 (1973).

4

Court of Appeals for the District of Columbia Circuit. Pursuant
to that order, the Administrator of the Environmental Protection
Agency (EPA) determined that the implementation plans of
every State, including Indiana, were defective to the extent they
failed to prohibit “significant deterioration” of air quality in
areas where the air-was less polluted than allowea by national
ambient air quality standards promulgated under the Act.”

After proposing several alternative plans for preventing
significant deterioration® and holding public hearings at five
sites* across the country—none in Indiana—EPA promulgated
final regulations at 39 Fed. Reg. 42509 er seq. (Dec. 5, 1974).
The regulations were incorporated as revisions into the im-
plementation plans of every State, despite the lack of public
hearings within Indiana or nine-tenths of the States and without
regard to the prior content of the implementation plans affected.*

Petitioners sought to have the regulations affecting Indiana
reviewed by the Court of Appeals for the Seventh Circuit as
required by Clean Air Act Section 307(b)(1).* Over their
objection, that review proceeding was transferred to the Court
of Appeals for the District of Columbia Circuit and consolidated
with thirteen other petitions for review filed in the various
judicial circuits. On August 2, 1976, a panel of the District of
Columbia Circuit rendered its decision upholding the regulations
in every respect.

2. 37 Fed. Reg. 23836-37 (Nov. 9, 1972). The order cautioned
that some of the plans thes disapproved sight later % Oe

Scanition of oop der we delaiica EPA Wihota & todd make
tte

3. 38 Fed. 18986 et seq. (July 16, 1973); 39 Fed. Reg.
31000 (Aug. 27, 1974).

4. Hearings in Atlanta, Dallas, Denver, San Francisco
and Washington, D’ C., 39 Fed. Reg. 31000 (Aug. 27, 1974).

5. 40 C. F. ray y amendments were promul-
Chane 2197 Fed. Reg. 2802 (Jan. 16, 975); 40 Fed. Reg 25004
June | “ey Hy tr eae ee ).

6. 42 U.S.C. § 1857h-5S(b)(1).

The Regulations

The significant deterioration regulations apply to all areas
of the country where concentrations of sulfur dioxide or particu-
late matter are less than allowed by the national secondary
ambient air quality standards established for those pollutants
under Section 109(b) of the Act.’ For such areas, the regula-
in ambient pollutant concentrations to be allowed as a result of
economic growth. In Class I areas, “practically any” increase in
ambient levels of the two pollutants, and thus practically any
economic growth, is prohibited." In Class II areas, somewhat
larger increases in the levels of those pollutants are allowed, so
that what EPA deems “moderate well-controlled growth” is
possible. In Class III areas, pollutant levels may reach the na-
tional standards.’ Thus, an increase in ambient pollutant con-
centration which exceeds the allowable increment for an area
constitutes “significant deterioration” of air quality in the area.

All clean air areas are initially designated Class II."° The
regulations set forth procedures by which, subject to numerous
conditions a State may propose, and EPA may approve, redes-
ignation of an area to another Class. Among the prerequisites
is a determination by EPA of the adequacy of the State’s con-
sideration of the following factors:

upon the area being proposed for redesig-

Soe ad ae ie ee ee (3) any im-
pacts of such proposed redesignation upon regional or
national interests.”

7. 42 U.S.C. § 1857c-4(b).

8. 39 Fed. Reg. 42510 (Dec. 5, 1974).

9. Id.

10. 40 C. F. R. §52.21(c)(3).

11. 40C. F. R. § 52.21(c)(3)(ii)(d).

Preconstruction review is the primary means of preventing
breach of the allowable increments for an area. It is required
for nineteen specified types of stationary sources of sulfur oxides
or particulate matter,’ and requires a determination by EPA
(or a State authorized to perform the function) that emissions
from the new source, together with emissions from all other
sources (commercial, residential, industrial), will not violate
the significant deterioration increments applicable to that area,
or “any other area.”"* By referring to the effects of increments
upon “any other area,” the regulations thus impose a “shadow
effects” rule that extends a zone’s increment ceilings far beyond
the boundaries of the zone itself. For most areas of the Nation,
for example, EPA has suggested that a Class I inhibition could
stretch 60 to 100 miles into a neighboring Class II or III area.
39 Fed. Reg. 42513 (Dec. 5, 1974). In addition, any such
source is required to meet an emission limit, to be specified by
the Administrator, which would result from application of the
“bes: available control technology” for sulfur dioxide and par-
ticulate matter. 40 C. F. R. § 52.21(d) (2) (ii).

REASON FOR GRANTING THE WRIT

The Decision Below Decided Important Questions of Federal
Law Which Should Be Expressly Settled by This Court.

The First Question—Is Section 110(a)(2) the Measure for State
Implementation Plans?

The first question presented by this petition—whether the
Clean Air Act requires that implementation plans prevent
significant deterioration—was determined to be in need of
settlement by this Court nearly four years ago when certiorari
was granted in Ruekelshaus v. Sierra Club, 409 U. §, 1124
(1973). However, with only eight members participating, the
Court was unable to decide the question, and the lower court's

12, 40C. F.R. § 52.21(d).
13. 40 C, F. R. § 52.21(d)(2)(i).

7

opinion was affirmed ex necessitate by an equally divided Court
sub nom. Fri v. Sierra Club, 412 U. S. 541 (1973).

The question is no less important today and should be settled
by this Court.

The regulations at issue in fact place under several new levels
of political and administrative control the economic develop-
ment of the vast bulk of the land in the United States. Estimates
vary as to the proportion of the country subject to the regula-
tions. Petitioners’ home state of Indiana, however, provides a
quite conservative illustration, for only twelve states occupy
less land,'* but in terms of dollar value added by manufacturing,
Indiana is the tenth most industrialized state.’ The State, thus,
has a relatively large number of pollution sources situated in a
relatively small land area. EPA's recent action on Indiana's
revised implementation plan strategy for sulfur dioxide approved
classification of 85 of its 92 counties (or roughly 92% of its
area) as having ambient sulfur dioxide levels less than allowed
by the national secondary standards.'* Thus, the decision below
has subjected to Federal control the economic development and
land use planning of over 90% of the land mass of this highly
industrialized State.

The U. S. House of Representatives recently passed a bill
which, if enacted as an amendment to the Clean Air Act, would
have established a classification scheme identical to the one im-
posed by the regulations at hand, as shown by the following
description:

Initially most areas which are cleaner than the national
ambient air quality standards with respect to any pollutant
would be classified as Class II . . . Areas where air quality
is worse than those minimum Federal standards would not
be classified at all and would not be affected by this section

14, U. S. Bureau of the Census, Statistical Abstract of the
United States, 1975 (96th ed.) Washington, D. C., 1975, at 176.

1S. Id., 749.

16. 41 Fed. Reg. 35676-77 (Aug. 24, 1976).

since the goal in these areas is to attain and maintain the
minimum Federal ambient standards.'" .
The committee report gave the following estimate of the
proportion of the country subject to the bill’s significant deterio-
ration provisions:
First, it must be re-emphasized that more than 98% of
the country is initially designated Class II."*
Thus, the question whether the Clean Air Act requires state
plans to contain non-degradation provisions may fairly be viewed
as the question whether land use planning of more than 90% of
the United States is subject to Federal administrative control.
The overriding importance of this question is self-evident.
Since dividing equally on the question of significant deterio-
ration in Fri v. Sierra Club,"* the Court has interpreted the Clean
Air Act three times: Union Electric Co. v. EPA, ......... U. S.
km » 44U.S. L. W. 5060 (June 25, 1976); Hancock v. Train,
cnet U.S. ........, 44 U. S§. L. W. 4767 (June 7, 1976); Train v.
Natural Resources Defense Council, 421 U. S$. 60 (1975).

The holdings in Union Electric and Train vy. NRDC appear
irreconcilable with the decision below. The Court held in
Union Electric that EPA may not disapprove a State imple-
mentation plan on the basis of factors not among the eight
criteria listed in Section 110(a)(2):*

This approach is apparent on the face of § 110(a) (2).

The provision sets out eight criteria that an implementation
plan must satisfy, and provides that if these criteria are met
and if the plan was adopted after reasonable notice and hear-
ing, the Administrator “shall approve” the proposed state
plan. The mandatory “shall” makes it quite clear that the
17. House Comm. on Interstate and —— Commerce, Clean

Air Act Amendments of 1976, H. R. Rep. No. 94-1175, 94th Cong.,
2d Sess. 120 (1976).

18. Id., 149.
19. 412 U. S. 541 (1973).
20. 42 U.S. C. 1857c-5(a)(2).

9

Administrator is not to be concerned with factors other than
those specified, Train v. NRDC, 421 U. S. at 71 n.11,
79, and none of the eight factors appears to permit con-
sideration of technological or economic infeasibility. None-
theless, if a basis is to be found for allowing the Admin-
istrator to consider such claims, it must be among the
eight criteria, and so it is here that the argument is
focused.

The major premise of the decision below, however, is pre-
cisely contrary to the quoted language and to the holding of
Union Electric. That premise is that EPA shall not approve
any implementation plan except upon determining that it meets
a ninth criterion, implementation of a “Judicially-created
requirement of nondeterioration” (App. I, A15).

While it appears that Union Electric should have controlled
the proceeding below, the Court of Appeals avoided it on the
argument that the precise issue of significant deterioration was
not before this Court in that case( App. I, A24). This raises
a question of Federal law, the extreme importance of which is
belied by the obviousness of its answer: When Congress has
written a statute which says EPA shall approve implementation
plans which meet eight specified criteria, and the Supreme
Court has construed the statute to mean that EPA shall approve,
and cannot disapprove, implementation plans which meet the
same eight criteria, should an additional criterion be added by
judicial legislation and made the basis for disapproving State
plans?

In Train v. Natural Resources Defense Council, 421 U. S.
60 (1975), the Court held that under Section 110(a)(3) of
the Clean Air Act, EPA is required to “approve any revision
of a state implementation plan,” including the grant of variances
to individual pollution sources, so long as the revision leaves the
plan in conformity with the eight criteria in Section 110(a) (2)

21. Union Electric Co. v. EPA, supra, 44 U. S. L. W. at 5063
(footnote omitted).

10

and is adopted after public notice and hearing. 421 U. S. 60,
at 80, 99. The decision below concedes that significant dete-
rioraton is not expressly included in Section 110 (App. I, A39),
but flatly contradicts the holding of Train on the basis that this
Court’s language does not mean what it says (App. I, A23-A24).
It approves EPA-imposed regulations which effectively prohibit
the States from revising their plans or granting variances to
accommodate new or modified sources in areas where national
ambient air quality standards are met unless a host of new
Federal requirements having no relation to Section 110(a) (2)
are met.

The holding in Train was based upon the Court's analysis

to be met. Under § 110(a)(2), the Agency is required to

approve a state plan which provides for the timely attain-
ment and subsequent maintenance of ambient air stand-

tations if they are part of a plan h satisfies the
ards of § 110(a)(2), and the
promulgate a specific plan of its own only if a State

is
at liberty to adopt whatever mix of emission limitations it
deems best suited to its particular situation.”
22. 421 U. S. 60, 79 (1975), (footnote omitted; emphasis in
Original ) .

11

The decision below conflicts with the scheme set forth in this
passage in the following respects:

1. It upholds EPA’s promulgation of emission limita-

and only where not necessary to meet national standards.

2. It upholds EPA action devising and promulgating

a specific plan of its own for 55 States, districts and terri-

tories on grounds other than incongruence of their plans
with Section 110(a) (2).

The Second Question—The Procedure for EPA’s Revision of
) State Implementation Plans.

The second question presented by this petition is whether
under Sections 110(c) and 110(d)** EPA may usurp the right
of the States to develop their own implementation plans by pro-
mulgating requirements that plans prevent significant deterio-
ration and on the same day imposing revisions of all 55 plans
to satisfy the newly-defined requirements, all without hearings
within the States.

In addition to the conflicts with the Train decision set forth
above, the decision of the Court of Appeals, in upholding the
procedure followed by EPA, is in further conflict with Train,
as follows:

1. It upholds EPA’s assumption of a primary, instead
of a secondary, role in devising specific emission limita-
tions for major sources in over 90% of the country.

2. It upholds EPA action devising and promulgating its
own plans for 55 states, districts and territories without
observing the procedures of Section 110(c), which the
Court cited as applicable.

This question goes to the very heart of what an implementa-
tion plan is, how an implementation plan comes into being,
and how one may be enforced. The statutory definition is in
Section 110(d):

23. 42 U.S.C. §§ 1857c-S(c) and 1857c-5(d), respectively.

12

_ For purposes of this Act, an applicable implementation
plan is the implementation plan, or most recent revision
thereof, which has been approved under subsection (a)
or promulgated under subsection (c) and which imple-
ments a national primary or secondary ambient air quality
standard in a State.

This is a definition of fundamental importance to the func-
tioning of the statutory scheme because according to Section
113, with minor exceptions, EPA is without power under the
Clean Air Act to enforce anything but an “applicable imple-
mentation plan.”** It is clear that the regulations at issue do
not “implement{ ] a national primary or secondary ambient air
quality standard . . .” and were not “approved under subsection
(a)” of Section 110. It is obvious also that the regulations were
not “promulgated under subsection (c)” of Section 110. That
provision restricts EPA’s authority to propose and promulgate
revisions of State plans to three distinct circumstances: (1) a
State’s failure to submit a plan to implement a primary or sec-
ondary standard by the statutory deadline; (2) nonconformity
of a plan with the requirements of Section 110; (3) a State’s
failure to revise a plan within 60 days of EPA’s notice that the
plan should be revised to achieve new primary or secondary
standards or should achieve standards more quickly. None of
these circumstances was the basis of the December, 1974, regu-
lations, as the opinion below acknowledges (App. I, A38-
A39).

Section 110(c) also requires that a State have the oppor-
tunity to cure its plan of any deficiencies EPA determines to

:
i
f

7
C. § 1857c-9; and the anapeliall author-

, he iemection ent provisions
) USC. § 1857e-10

13

raneously with promulgating the definition of significant deterio-
ration, EPA issued its disapproval of all plans for failing to
prevent significant deterioration. On the same day it revised
each plan with curative regulations, thereby violating Section
110(c) by not holding public hearings in 46 of the affected
States.”

The significant deterioration regulations then raise a distinct
problem: Of the four attributes which define a regulatory pro-
vision as part of an applicable implementation plan, the regu-
lations possess not one. The Supreme Court has explicitly
noted that the characteristics set forth in Section 110(d), and
particularly the characteristic of implementing national stand-
ards, are essential to the identity of an implementation plan:

An exception which does jeopardize national standards,
on the other hand, cannot be a revision because it would
deprive the revised plan of a characteristic without which
it cannot under the Act be an applicable plan. See
§ 110(d) which defines “applicable implementation plan”
as the “implementation plan, or most recent revision there-
of, which has been approved under [§ 110(a)(2)]. .. .”%

Thus, the question is whether an implementation plan is what
it appears to the naked eye to be, or whether the gloss of
legislative history actually operates to contradict the Supreme
Court and to amend Section 110(d) to read:

For the purposes of this Act, an applicable implementa-
tion plan is the implementation plan, or most recent
revision thereof, which has been approved under
subsection (a), or promulgated under subsection (c) or
promulgated under the authority implicit in Section 101(b)
(1) pursuant to such procedure as the Administrator shall
employ and which implements a national primary or
secondary ambient air quality standard in a State or which
implements a prohibition against the significant deteriora-
tion of air quality in areas of a State where primary and
secondary ambient air quality standards are met.

25. 39 Fed. Reg. 42509 et seg. (Dec. 5, 1974).
a Train v. Natural Resources Defense Council, 421 U. S. 60,
90 n.25 (1975) (emphasis in original).

14

Whether such a fundamental rewriting of the Clean Air Act
should be allowed to stand is an important question of Federal
law which should be settled by this Court.

Judicial review of the significant deterioration regulations has
also been at odds with the statutory scheme and has contributed
to EPA’s usurpation of the function of the States. The judicial
review provision of the Clean Air Act reads in pertinent part:

A petition for review of the Administrator’s action in
approving or promulgating any implementation plan under
section 110 or section 111(d), or his action under section
119(c)(2)(A), (B) or (C) or under regulations there-
under, may be filed only in the United States Court of
Appeals for the appropriate circuit. Any such petition shall
be filed within 30 days from the date of such promulgation,
approval, or action or after such date if such petition is
based solely on grounds arising after such 30th day.”

Petitioners contend, as they have since originally filing their
petition for review in the Seventh Circuit, that the obvious
meaning of this provision is that review of EPA action on a
State implementation plan be performed “only” by the Court
of Appeals for the Circuit in which the affected State lies.
This is consonant with the repeated injunction in Section 110
that implementation plans may not be adopted or revised with-
out a public hearing within the State, and that each plan is to be
reviewed separately by EPA. It is consistent also with the con-
gressional finding in Section 101(a)(3)," and direction in
Section 107(a),” that air pollution control is the primary
responsibility of the States and local governments. In the
proceeding below Petitioners made substantial claims that, prior
to EPA’s disapproving and revising it, the Indiana implemen-
tation plan contained measures to prevent degradation of the
State’s clean air, and that differences between Indiana’s plan and
the one EPA devised for the purpose were not legal grounds for
27. Section 307(b)(1), 42 U. S. C. § 1857h-5(b) (1).

28. 42 U. S.C. § 1857(a)(3).
29. 42U.S.C. § 1857c-2.

15

disapproving the State’s plan. The court below, faced with
arguments as to most of the pl4ns in the Nation, did not review
those claims. Petitioners submit that avoidance of such inade-

to mean that every petitioner for review should have to guess
which circuit is the most appropriate, Dayton Power & Light
Co. v. EPA, 520 F. 2d 703 (6th Cir. 1975) notwithstanding.

The decision below is in conflict with applicable decisions
of this Court and, if allowed to stand, will have worked a
major restructuring of State-Federal relationships and will have
effectively rewritten a major piece of Federal legislation.

For these reasons, a writ of certiorari should issue to review
the judgment and opinion of the Court of Appeals for the
District of Columbia Circuit.

Respectfully submitted,

Jerry P. BELKNAP
Jon D. NOLAND
Bryan G. TABLER
BARNES, HickaM, PANTzer & Boyp
1313 Merchants Bank Building

Indianapolis, Indiana 46204
Attorneys for Petitioners

A. Josern Dowp
AMERICAN ELECTRIC POWER
SERVICE CORPORATION
2 Broadway
New York, New York 10004
LivinosTon, Di_pine, Haynie & YODER
425 Lincoln Bank Tower
Fort Wayne, Indiana 46802

Parr, RICHEY, OBREMSKEY, PEDERSEN
& MorTON
Union Federal Savings and Loan Building
Lebanon, Indiana 46052

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1667%3A1. Public record. Not legal advice.