Petition — Mann v. United States

Supreme Court 9. K

FI. E

_| nov 1 Ns

. iD rou

| MICHAEL ROUAK. - CLERK J

IN THE

Supreme Court of the United States

Octoser Term, 1976

No. 76-620 |

WESTERN ENERGY SUPPLY AND TRANSMISSION ASSOCIATES,

ET AL., Petitioners,

V.

Unirep STATES ENVIRONMENTAL PROTECTION AGENCY,

ET L., Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

List of Counsel on Inside Cover]

COUNSEL FOR PETITIONERS

Western Enercy Suprpty AND TRANSMISSION ASSOCIATES, com-

prised of:

Arizona Electric Power Cooperative, Inc.

Arizona Power Authority

Arizona Public Service Company

City of Anaheim

City of Burbank, Public Service Department

City of Colorado Springs, Department of Public Utilities

City of Glendale, Public Service Department

City of Los Angeles, Department of Water & Power

City of Pasadena, Water & Power Department

Colorado-Ute Electric Association, Inc.

El Paso Electric Co.

Imperial Irrigation District

Nevada Power Co.

Pacific Power & Light Co.

Public Service Co. of Colorado

Public Service Co. of New Mexico

Salt River Project Agricultural Improvement and Power

District

San Diego Gas & Electric Co.

Sierra Pacific Power Co.

Southern California Edison Co.

Tucson Gas & Electric Co.

Utah Power & Light Co.

Jon L. Kyl Bruce Norton

Jennings, Strouss & Salmon Snell & Wilmer

111 West Monroe 3000 Valley Center

Phoenix, Arizona 85003 Phoenix, Arizona 85073

Uran INTERNATIONAL, INC.

C. C. Dietrich Richard N. Carpenter

550 California Street Bigbee, Byrd, Carpenter &

San Francisco, California Crout

94104 P. O. Box 669

Santa Fe, New Mexico 87501

Robert M. Westberg

Pillsbury, Madison & Sutro

225 Bush Street

San Francisco, California 94104

Sa

INDEX

Page

r EE .. eee 2

D .be re 2

e eee 2

CONSTITUTION, STATUTE AND REGULATIONS INVOLVED ....... 3

ä 3

REASONS FOR GRANTING THE WRT. . 5

TE ee 19

a la

r —Ö · -- 19a

TTT . 20a

„„ 25a

CITATIONS

Cass:

Abbott Laboratories v. Gardner, 387 U.S. 136

—

Aetna Life Ins. Co. of Hartford, Conn. v. Haworth,

Ef Se

Anaconda Company v. Ruckelshaus, 482 F.2d 1301

160...

Arizona Public Service Company v. Fri, 5 E. R. C.

LG ere

City of Highland Park v. Train, 519 F.2d 681 (7th

. 2.

Delaware Cit. For Clean Air, Inc. v. Stauffer

Chem. Co., 367 F. Supp. 1040 (D. Del. 1973)

aff'd 510 F.2d 969 (3d Cir. 1975) .

Duquesne Light Co. v. EPA, 481 F.2d 1 (3d Cir.

.

FPC v. Tuscarora Indien Nation, 362 US.

— — —— ——

Getty Oil Company (Eastern Operations) v. Ruck-

elshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied

a

Hagedorn v. Union Carbide Corporation, 363 F.

Supp. 1061 (N. D. W.Va. 1973)

Natural Res. Def. Coun., Inc. v. EPA, 481 F.2d 116

?-

Pinkney v. Ohio Environmental Protection Agen-

cy, 375 F. Supp. 305 (N. D. Ohio 1974) .................

Plan for Arcadia, Inc. v. Anita Associates, 501

F.2d 390 (9th Cir. 1974), cert. denied, 419 U.S.

3 ͤ—

Sierra Club u. Morton, 405 U.S. 727 (1972)

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

D.C. 1972), aff'd per curiam, 4 E.R.C. 1815 (D.C.

13

13

Page

Cir. 1972), aff'd by equally divided Court, sub

nom. Fri v. Sierra Club, 412 U.S. 541 (1973) ....... 3

Toilet Goods Association v. Gardner, 387 U.S. 158

(1967) 17

Train v. Natural Resources Defense Council, ine.

421 U.S. 60 (1975) . 7

Utah Internat l, Inc. EEA, 478 F.2d 126 (10th

EEE 13

Warth o. Seldin, 422 U.S. 490 (1975) coccccccccccccccccenens 14

Washington v. General Motors Corporation, 406

CC .. 7

Willing v. Chicago Auditorium Ass'n, 277 U.S. 274

CE 14

CONSTITUTION:

United States Constitution

ä — 14

STATUTES:

The Clean Air Act, as amended, 42 U.S.C. 66 1857,

13X§—?ßœ& ̃— passim

REGULATIONS AND Propose REGULATIONS:

Environmental Protection Agency, “Approval and

Promulgation of Implementation Plans: Preven-

tion of Significant Air Quality Deterioration”

39 Fed. Reg. 42509 (December 5, 1974 3.4.5

40 Fed. Reg. 2802 (January 16, 1975) 8 — 4

40 Fed. Reg. 25004 (June 12, 1975) — 4

40 Fed. Reg. 42011 (September 10, 1975) ................. 3.4

Environmental Protection Agency, Approval and

Promulgation of Plans 40 C. F. R. §§ 52.01(d)

and (0 3

Environmental Protection Agency, — ond

Promulgation of Implementation Plans: Signifi-

cant Deterioration of Air Quality—Adding 4

52.21% 37 Fed. Reg. 23836 (November 9, 1972) ..... 4

Iv Citations Continued

P

Environmental! Protection Agency, “Prevention of -

Significant Air Quality Deterioration”, 40 C. F. R.

§ 52.21 4.5.8

Orner AUTHORITIES:

7 BNA Environmental Reporter, No. 23 (October 8,

1976) 16

Map of Federal Lands, United States Geological

Survey Map, 1968, Sheet No. 272 10

IN THE

Supreme Court of the United States

Octoser Term, 1976

Western Enercy Surr_y AND TRANSMISSION ASSOCIATES,

r., Petitioners,

V.

Unrrep States ENVIRONMENTAL PROTECTION AGENCY,

UL, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

This petition is filed on behalf of Western Energy Supply

and Transmission Associates, intervenor in No. 74-2063

below, a trade association of twenty two major public and

private utilities operating in eleven Western States; and

individually on behalf of Arizona Electric Power Coopera-

tive, Inc., Arizona Public Service Company, Nevada Power

Company, Salt River Project Agricultural Improvement and

Power District, Southern California Edison Company, and

Tucson Gas & Electric Company, all of which are electrical

utilities which were petitioners in No. 75-1764 below; and

JURISDICTION

OPINION BELOW

The Opinion of the Court of Appeals has not yet been

The judgment of the Court of Appeals for the District of

Columbia Circuit was entered on August 2, 1976, and this

petition for certiorari was filed within 90 days of that date.

published in the official reports, but it has been published

at 9 E.R.C. 1129.

QUESTIONS PRESENTED

K. 5

Ai 1 i

Sut hi iH

The petitioners respectfully pray that a Writ of Certiorari

issue to review the judgment and opinion of the United

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

States Court of Appeals for the District of Columbia Circuit

on behalf of Utah International, Inc., a coal mining com-

entered in this proceeding on August 2, 1976.

pany which was a petitioner in No. 75-1372 below.

3

regulations which grant to Federal Land Managers and In-

dian Governing Bodies power to control reclassification of

lands.

2. Whether the issue of unlawful grant of authority over

air quality to Federal Land Managers and Indian Govern-

ing Bodies is ripe for review.*

CONSTITUTION, STATUTE AND REGULATIONS

INVOLVED

The regulations being reviewed, 40 C.F.R. §§ 52.01 (d),

(f), and 52.21 (1975), as amended, 40 Fed. Reg. 42011

(September 10, 1975), are set forth in Appendix A hereto.

The relevant provisions of the Constitution and of the

Clean Air Act, as amended, 42 U.S.C. § 1857 et seg, are set

forth respectively in Appendices C and B hereto.

STATEMENT OF THE CASE

This case involves review of regulations promulgated by

Respondent Environmental Protection Agency (EPA) on

November 27, 1974. 39 Fed Reg. 42509, et seg. (Dec. 5,

1974). The regulations have been generically referred to as

the “significant deterioration regulations

The regulations were promulgated as a result of an order

of the United States District Court for the District of Co-

lumbia entered ongfay 30, 1972, in the case of Sierra Club

v. Ruckelshaus, NF. Supp. 253 (D. D.C. 1972). A panel of

the Court of Appeals for the District of Columbia Circuit

affirmed, per curiam, Sierra Club v. Ruckelshaus, 4 E.R.C.

1815 (D.C. Cir. 1972), and this Court affirmed without

opinion by an equally divided Court. Fri v. Sierra Club, 412

US. 541 (1973).

The petition of Montana Power Company, et al, presents a number

of questions for review. Petitioners here concur in both the delineation of

questions presented and reasons presented therein for the granting of a

Writ of Certiorari. The two questions presented in the instant petition

are similar to the questions enumerated as Question 2(d) in the petition

of Montana Power Company, at 3, but which were not discussed therein.

4

The only written opinion, that of District Court Judge

Pratt, ordered EPA to disapprove all state implementation

plans which did not provide for the prevention of signifi-

cant deterioration of existing air quality where that air

quality was better than that required by the national sec-

ondary standards. The order further required EPA to

promulgate regulations to prevent significant deterioration. .

In response to that order EPA disapproved the imple-

mentation pians of all States insofar as they did not provide

for the prevention of significant deterioration (37 Fed. Reg.

23836 (Nov. 9, 1972)) and promulgated the regulations at

issue here.‘

Petitioners in this action were among those who sought

judicial review of the regulations pursuant to § 307(b) (i) of

the Clean Air Act, 42 U.S.C. § 1857h-5(b)(1). In all, four-

teen petitions were filed in several Circuit Courts of Appeal

and all petitions were eventually consolidated in the Court

of Appeals for the District of Columbia Circuit. A panel of

that Court rendered its decision on August 2, 1976, affirm-

ing the regulations.

The regulations set forth three classifications of all areas

which already meet the federal primary and secondary

standards for sulfur oxides and particulates. Classes I and

II allow only sharply limited incremental increases in exist-

ing levels, while Class III is set at the level of the secondary

standards. 40 C. F. R. § 52.21(c)(2). Class I is to be used for

areas in which “practically any change in the air quality

would be considered significant”; Class II is for areas where

significant would be more than that “normally accompany-

ing moderate well-controlled growth”; and Class III would

allow “deterioration of air quality up to the national stan-

* The text of the regulations within 39 Fed. Reg. 42509 (Dec. 5,

1974), as amended, 40 Fed. Reg. 2802 (Jan. 16, 1975), 40 Fed. Reg. 25004

(June 12, 1975), and 40 Fed. Reg. 42011 (Sept. 10, 1975), and pertinent

portions of the preamble to the December 5, 1974 promulgation are re

produced in Appendix A.

5

dards”. 39 Fed. Reg. 42510. All areas are initially desig-

nated as Class II. 40 C.F.R. § 52.21(c)(3)(1).

The most pertinent portions of the regulations for pur-

poses of this petition are the provisions for reclassification.

The regulations grant to the States the power to reclassify

areas within the State, including all federal lands within

their borders, provided that the States have followed cer-

tain specified procedures and have taken into account

certain specified considerations. 40 C.F.R. §§ 52.21(c)(3)(ii)

and (iii). They then provide in § 52.21(c)(3)(iv) that “Fed-

eral Land Managers” and “Indian Governing Bodies” may

reclassify lands within their respective jurisdictions, pro-

vided only that they follow equivalent procedures, take into

account the same considerations, and consult with the af-

fected States“ Federal Land Managers can reclassify

federal lands only to a more restrictive class. The Adminis-

trator of EPA has no discretion to disapprove any proposed

reclassification unless he determines that the proposer has

arbitrarily and capriciously disregarded the specific sub-

stantive considerations or failed to comply with the

designated procedures. 40 C.F.R. § 52.21(c)(3)(vi).

REASONS FOR GRANTING THE WRIT

. THE CLEAN AIR ACT DOES NOT AUTHORIZE

THE ADMINISTRATOR OF THE ENVIRONMEN-

TAL PROTECTION AGENCY TO ADOPT

REGULATIONS WHICH GRANT TO FEDERAL

LAND MANAGERS AND INDIAN GOVERNING

BODIES POWER TO CONTROL RECLASSIFICA-

TION OF LANDS

o It should be noted that private persons or businesses may not pro-

pose reclassifications; nor are there any procedures for forcing a State,

Federal Land Manager or Indian Governing Body to propose reclassifica-

;

A. The Clean Air Act Mandates State Control of Air

Quality Within the Entire Geographic Area of the

State, Subject Only to EPA Supervision

The Clean Air Act expressly grants primary responsibility

over air quality to the States. Section 101(a)(3) provides

“that the prevention and control of air pollution at its

source is the primary responsibility of States and local gov-

ernments”. 42 U.S.C. § 1857(a)(3). Section 107(a) provides:

Each State shall have the primary responsibility for

assuring air quality within the entire geographic area

comprising such State by submitting an implementa-

tion plan for such State which will specify the manner

in which national primary and secondary ambient air

quality standards will be achieved and maintained

within each air quality control region in such State. 42

U.S.C. § 1857¢-2(a) (Emphasis added).

The Act is clear that once the Environmental Protection

Agency has prescribed the national standards to be

achieved and maintained, it is for the States to develop and

implement plans for meeting the standards. In addition,

§ 116 of the Act [42 U.S.C. § 1857d-1] specifically reserves

to each State the right to impose stricter controls than are

required by federal law.

The legislative intent to vest each State with control over

air quality within the entire geographic area comprising

that State is also manifested by § 118 of the Act, which,

provides that all government agencies and departments

with jurisdiction over any property, “shall comply with

Federal, State, interstate, and local requirements respecting

control and abatement of air pollution to the same extent

that any person is subject to such requirements”. 42 U.S.C.

4 1857f.

This statutory scheme has been recognized in several

cases considering the Clean Air Act. In Duquesne Light Co.

v. EPA, 481 F.2d 1, 3 (3d Cir. 1973), for example, the Court

7

agreed that the Clean Air Act granted control over air qual-

ity planning to the States, subject to EPA’s supervision.

In enacting the Clean Air Act Amendments of 1970,

Congress attempted to foster a symbiosis between two

perceived needs. First, Congress wanted to preserve the

basic state and local control of the design and enforce-

ment of air pollution regulations. Second, ... there

was a desire for federal standards and enforcement. .. .

The result of these two conflicting strains was that

Congress in the 1970 Amendments, devised a system in

which certain aspects of the pollution control effort

were assigned exclusively to the EPA, other aspects

being entrusted to the states under federal supervision.

In Train v. Natural Resources Defense Council, Inc., 421

U.S. 60, 95 S. Ct. 1470, 1474 (1975), Mr. Justice

Rehnquist made the following observation with respect to

the 1970 Amendments to the Clean Air Act:

These Amendments sharply increased federal authority

and responsibility in the continuing efforts to combat

air pollution. Nonetheless, the Amendments explicitly

preserved the principle that, ‘Each State shall have the

primary responsibility for assuring air quality within the

entire geographic area comprising such State.

107(a) of the Clean Air Act, as added, 84 Stat. 1678, 42

U.S.C. § 1857¢-2(a).

See also Washington v. General Motors Corporation, 406

U.S. 109, 114-16 (1972).

In summary, the Clean Air Act, by its explicit language

and as judicially construed, mandates that each State shall

control air quality within its own entire geographic area,

subject only to supervision by EPA.

B. The Regulations Contravene the Mandate of the Clean

Air Act that Each State Shall Control Air Quality

Within Its Own Entire Geographic Area by Allowing

Reclassification of Areas Within a State Indepen-

dently of Control by that State.

The EPA regulations at issue contravene the express

mandate of State control by granting to Indian Governing

Bodies and Federal Land Managers the authority over air

quality on federal and Indian lands, as well as large areas of

State and private land. The regulations thus unlawfully

derogate from the primary responsibility and authority of

the States under the Act to assure air quality of all lands

within their geographic boundaries.

There is no language in the Act which, either expressly or

by implication, allows the special treatment of federal and

Indian lands within a State. But, in withdrawing reclassifi-

cation of lands from State control, these regulations affect

not only those federal and Indian lands themselves, but

neighboring State and private lands as well. This is because

the construction or modification of a source covered by the

regulations will not be permitted if the effect of that source

on air quality concentrations will cause a violation either of

the air quality increments applicable in the immediate area

or the increments applicable in any other areas. 40 C.F.R.

§ 52.21(d) (2) (i). EPA itself has emphasized the dramatic

effect of this provision:

Calculations have shown that because of the small air

quality increments specified for Class I areas, these lev-

els can be violated by a source located many miles

inside an adjacent Class II or III area. For example, a

power plant which just meets the Class II increment for

SOg could under some conditions violate the Class |

increment for 802 60 or more miles away. . . Therefore,

wherever a Class I area adjoins a Class II or III area, the

potential growth restrictions, especially for power plant

development, extends well beyond the Class I bounda-

ries into the adjacent area. A similar situation exists, to

a greater or lesser degree, wherever areas of different

classification adjoin each other. ... [I]t should be clear

that the Class II or III increment could only be fully

utilized toward the center of the area and that at the

periphery, allowable deterioration will be dictated by

the adjoining Class I area rather than the Class II or III

increment. 39 Fed. Reg. 42512 (Dec. 5, 1974).

EPA acknowledged that this “drift factor” could limit

growth outside a Class | area as much as 60 to 100 miles. Id.

at 42513. The reclassification of federal or Indian lands can

dictate growth and development on adjacent State and pri-

vate lands for many miles around.

By allowing federal and Indian lands to be reclassified

independently of State control, the regulations treat those

lands differently from all other lands in the States and

grant to Federal Land Managers and Indian Governing

Bodies a decision-making power equal to that of the States

themselves. Insofar as the prevention of significant deterio-

ration is concerned, there is nothing inherent in the nature

of air quality above federal or Indian lands which per se

should remove its protection from State control. Indeed, as

noted earlier, with regard to federal lands and entities,

118 explicitly provides that they shall be subject to the

same State and other requirements as other persons within

the State. Similarly, with regard to Indian lands and enti-

ties, it is well settled that “general Acts of Congress apply

to Indians as well as to all others in the absence of a clear

expression to the contrary....” FPC v. Tuscarora Indian

Nation, 362 U.S. 99, 120 (1960). Since the Clean Air Act

contains no special provisions for Indian tribes, they are

subject to all the provisions thereof, including those grant-

ing the States the responsibility and authority, subject to

EPA’s supervision, for implementing the Act within their

borders.“ In short, by granting Federal Land Managers

Several petitioners below argued that the regulations in question

violated rights of due process under the United States Constitution. The

allocation of the responsibility for reclassification of Indian lands by In-

{Continued }

10

and Indian Governing Bodies a separate decision-making

power from that of the States, EPA has purported to grant

authority which the Act does not give it to grant. It has also

attempted to confer that authority on political entities

whom the Act did not intend should have such authority.

The power granted federal agencies and Indian Governing

Bodies creates particularly severe problems in the eleven

Western States served by petitioners because of the exten-

sive amounts of federal and Indian lands and the

checkerboard land ownership patterns in those States.’

The petitioner which intervened in No. 74-2063 and peti-

tioners in No. 75-1764 below are all charged with providing

essential electric service to consumers in the West; and, in

order to carry out their mandates, must continue to con-

struct and operate fossil fuel steam electric plants. The

petitioner which petitioned in No. 75-1372 below is engaged

in mining coal, on and off Indian reservations, for use in

such plants and, prospectively, for manufacture on-site into

dian Governing Bodies and the “reach” of such reclassifications beyond

the Indian land borders is an example of such a denial of due process

rights. While petitioners could seek judicial review of a Federal Land

Managers actions or that of a State in federal or State courts, respective

ly, there is no judicial forum in which to review the Indian Governing

Body action. Judicial review of the actions of Indian tribes under these

regulations would only be available in the narrow sense of seeking review

of EPA's approval of any reclassification.

1 The statistics regarding ownership of land in two representative

Western States, New Mexico and Arizona, are as follows:

New Mexico* Arizona**

Percent of Ownership Percent of Ownership

Federal 33.3 44.5

State 11.8 13.2

Private 45.5 15.3

Indian 9.3 27.0

* Source: Federation of Rocky Mountain States.

** Source: Map of Federal Lands, United States Geological Survey

Map, 1968, Sheet No. 272.

11

synthetic natural gas. The existing and prospective plants

produce emissions subject to limitation and are themselves

subject to preconstruction review under the regulations. In

view of the checkerboard mixture of federal, State, private

and Indian lands in the Western States, the effectuation

into regulation of the primary role of the States, as envis-

aged and mandated by the Clean Air Act, is crucial.

For example, in the Four Corners Area of Arizona, Utah,

Colorado and New Mexico there are located electric gener-

ating plants owned wholly and partly by some of the

intervenor and petitioner utilities in Nos. 74-2063 and 75-

1747 below and coal mining operations of the petitioner in

No. 75-1372 below for fuel for some of these plants and,

prospectively, for synthetic fuel conversion. Within 60 to

100 miles of the existing and proposed plants within the

New Mexico portion of the Four Corners region, there are

four Indian reservations, two national monuments, three

national forests, thousands of acres of federal public do-

main, as well as three other States.“ The delegated

authority to New Mexico to reclassify becomes of little

value under these circumstances, since one of the considera-

tions is the effects of the proposed redesignations on

adjoining areas which include differing Indian Governing

Bodies and differing Federal Land Managers, each having

the power of reclassification. A protest by any one of the

multiple Federal Land Managers or Indian Governing Bod-

ies limits the circumstances under which EPA can approve

the reclassification. Moreover, each can initiate its own re-

classification, though the federal agencies only to a more

restrictive class. This hodgepodge of conflicting “sover-

According to the Energy Committee of the New Mexico Legislature

1976, a “recent study on the northwest coal fields in New Mexico con-

ducted State Geologist showed that coal ownership was 57.3

percent federal, 32 percent Indian, 5.9 percent private and 4.8 percent

12

eigns”, utterly ignoring the primary role for the State in

which the sources are geographically situated, creates a

maze of potential vetoes for energy development that inhib-

its, if not curtails, petitioners’ plans to meet the near and

Because the vast majority of State and private land in the

Western States lies within 60 miles of federal or Indian

land, the classification of federal and Indian lands as Class

I or even Class II in effect grants to entities other than the

States air quality and land use control over most — and in

some States all — of the lands within those State regard -

less of ownership. The regulations at issue abrogate

Congress’ grant to the States of the primary responsibility

and authority to assure air quality and to make land use

decisions within their own borders. At least to the extent of

that abrogation, the regulations are inconsistent with the

Clean Air Act and exceed the authority granted to EPA by

the Act.

II. THE ISSUE OF UNLAWFUL GRANT OF AUTHOR-

ITY OVER AIR QUALITY TO FEDERAL LAND

MANAGERS AND INDIAN GOVERNING BODIES

IS RIPE FOR REVIEW

A. The Circuit Court Decision Creates a Conflict Among

the Circuits on the Issue of Exclusivity of Review

Under the Clean Air Act

An important reason for granting the writ is to resolve a

conflict among the Circuits resulting from the decision of

the Circuit Court for the District of Columbia that the is ue

of unlawful grant of authority over air quality within a

State to Indian Governing Bodies and Federal Land Man-

agers was not ripe for review. 9 E.R.C. 1129, 1147-48. By its

“deferral of this question until it arises in a more concrete

context” (9 E.R.C. 1148), the Court holds that petitioners

would have the right to litigate the issue in some court at a

the proposition that a

Highland Park v. Train, 519 F.2d 681 (7th Cir. 1975); Getty

Oil Company (Eastern Operations) v. Ruckelshaus, 467

F.2d 349, 355-56 (3d Cir. 1972), cert. denied 409 U.S. 1125

(1973); Plan for Arcadia, Inc. v. Anita Associates, 501 F.2d

390, 392 (9th Cir. 1974), cert. denied, 419 U.S. 1034 (1974);

Utah Internat Il. Inc. v. EPA, 478 F.2d 126, 128 (10th Cir.

1973); Anaconda Company v. Ruckelshaus, 482 F.2d 1301,

1304 (10th Cir. 1973); Pinkney v. Ohio Environmental Pro-

tection Agency, 375 F. Supp. 305, 309 (N.D. Ohio 1974);

Arizona Public Service Company v. Fri, 5 E.R.C. 1878 (D.

Ariz. 1973); Hagedorn v. Union Carbide Corporation, 363

F. Supp. 1061, 1068 (N.D. W.Va. 1973); Delaware Cit. For

Clean Air, Inc. v. Stauffer Chem. Co., 367 F. Supp. 1040,

1046 (D. Del. 1973), aff'd 510 F.2d 969 (3d Cir. 1975).

In this case the regulations being challenged were promul-

gated under § 110c-5ic) [42 U.S.C. § 1857c-5(c)], as

identical implementation plans for each State to prevent

significant deterioration of air quality. The cases cited

above hold that a challenge to a promulgation under 9 110c-

5 must be brought in the United States Court of Appeals

for the appropriate Circuit within 30 days of the promulga-

tion. § 307(b) (1). In Getty Oil Company (Eastern

Operations) v. Ruckelshaus, supra, the Court said:

If Congress specifically designates a forum for judicial

review of administrative action, such forum is exclusive,

* “The Constitution requires an opportunity at a meaningful time

and in a meaningful manner for s hearing appropriate to the nature of

the case.” Getty Oil Company (Eastern Operations) v Ruckelshaus,

supra, 467 F.2d at 356.

14

and this result does not depend on the use of the word

‘exclusive’ in the statute providing for a forum for judi-

cial review. 467 F.2d at 356.

The holding of the Court below thus squarely conflicts

with holdings in the other Circuits which have dealt with

the question. The issue to be resolved is extremely impor-

tant, going as it does to the question of where and how

review of certain major EPA promulgations may be

brought.

B. Where Congress Has Provided an Exclusive Statutory

Method of Review of an Agency Regulation Within a

Limited Time After Promulgation, No Additional

Showing of Ripeness is Required to Obtain Review of

the Regulation

Under the view prevailing in other Circuits, petitioners’

challenge to the regulations at issue must be in this action.

Under that view, no additional showing of ripeness is neces-

sary.

Subject to constitutional constraints, Congress may legis-

late as to court jurisdiction and procedure. As long as the

Article III “case or controversy” requirement is recognized,

Congress may allocate judicial resources and timing of judi-

cial review by statutorily providing that judicial access

standards such as standing and ripeness are to be consid-

ered met in certain classes of cases even though, in the ab-

sence of such a statute the courts might not consider them

satisfied. Warth v. Seldin, 422 U.S. 400, 95 S. Ct. 2197,

2206 (1975) (dictum on standing); Sierra Club v. Morton,

405 U.S. 727, 737-38 (1972); compare Aetna Life Ins. Co. of

Hartford, Conn. v. Haworth, 300 U.S. 227 (1937), with

Willing v. Chicago Auditorium Ass'n, 277 U.S. 274, 288-89

(1928); cf. Natural Res. Def. Coun., Inc. v. EPA, 481 F.2d

116, 120-21 (10th Cir. 1973).

The traditional rationale for the ripeness doctrine has

been to prevent courts from becoming entangled in abstract

15

disagreements over administrative policy and to protect

decision has been formalized and its effects felt. Abbott

Laboratories v. Gardner, 387 U.S. 136, 148 (1967). The re-

view procedure provided in the Act is not antithetical to

that rationale. As to the first aspect of the rationale, the

issue here presented is purely legal — does EPA have the

right under the Act to delegate decision making to Indian

Governing Bodies and Federal Land Managers That legal

issue will never become less “abstract” than it presently is.

terest in prompt resolution of any questions as to their

validity, Congress explicitly provided that judicial review of

such Agency action must be initiated within 30 days after

promulgation.” By specifically providing the early “judi-

cial interference”, Congress plainly determined that the

necessity for prompt review of major EPA prom-

ulgations satisfied the considerations underlying both

branches of the ripeness doctrine rationale.

If a petition is based solely on grounds arising after the 30th day, it

may be filed after the 30th day. § 307 (b) (1). The question of whether

16

The unlawful grant of authority to Indian Governing

Bodies and Federal Land Managers has created a potential

veto power over energy development, especially in the

Western States served by petitioners. The very existence of

that veto power will have a chilling effect on planning, in-

vestment and development for meeting our energy needs.

Planning for electric power plants and other energy facili-

ties, including assurance of adequate fossil fuel supplies,

cannot proceed properly pending resolution of the conflict-

ing jurisdictions of the States, Indian tribes and various

federal agencies under the regulations. Petitioners cannot

risk spending millions of dollars on planning and prepz«-ing

a plant site only to have the site (or its fuel source) elimi-

Congress sought to minimize by, in effect, inferring ripeness

of purely legal questions which go directly to the underlying

validity of a final regulation and providing for review in

Circuit Courts within 30 days of promulgation.

In terms of reviewability under § 307 (b) (1), there is no

difference between all of the other issues decided by the

17

C. The Issue of Unlawful Granting of Authority is Purely

a Legal Issue Resolvable by Statutory Construction

Either the Act grants reclassification authority to Federal

Land Managers and Indian Governing Bodies or it does

not. That is purely a legal issue. No factual situation will

properly assist in its resolution.

The Act, comprehensive and detailed in all other respects,

says absolutely nothing of “Federal Land Managers” or

“Indian Governing Bodies”, but places the primary respon-

sibility for prevention and control of air pollution with the

States and local governments. See, eg. §§ 101 (a) (3) and

107 (a). Statutory interpretation provides the answer to the

legal question of whether authority was properly removed

from the States and delegated by the Agency to the Indian

and federal entities.

Therefore, this case is unlike Toilet Goods Association v.

Gardner, 387 U.S. 158 (1967), cited by the Circuit Court in

support of its view on ripeness. 9 E.R.C. at 1147. Though

purely legal (as here), the issue in Toilet Goods was not

determinable by reference to the language of the law alone.

This Court held there that evaluation of various problems

in enforcement, supervision and administration were neces-

sary to show “whether the statutory scheme as a whole

justified promulgation of the regulation”. 387 U.S. at 164.

In the present case evaluation of the operation of the regu-

lations might show whether they work well or poorly, but it

cannot offer relevant assistance in interpreting the law.

The Circuit Court’s avoidance of the issue was based

upon its uncertainty of “how a conflict may evolve’, and its

speculation that EPA might someday approve a State plan

which did not include the powers granted to the Indian and

federal entities. 9 E.R.C. at 1148. But, it is legally unimpor-

tant how a conflict might evolve — the power to act has

been fragmented and placed in the hands of two additional

18

classes of entities by final Agency action in violation of the

law under which the Agency operates. It is the threat of

exercise of that power, not its actual exercise, which already

has and will continue to inhibit planning for future devel-

opment. It is not a condition of ripeness that unlawfully

delegated power necessarily be exercised before its legality

may be challenged. See Abbott Laboratories v. Gardner,

supra. Moreover, it is not helpful to a resolution of the is-

sue to speculate about what a State plan may be like in the

future. Petitioners’ plans for energy development are inhib-

ited now by the regulations which exist now. Review is

required to determine whether these regulations are lawful.

That is a legal determination, not properly or necessarily

aided by waiting either for future operation of the regula-

tions or for their possible future amendment.

19

CONCLUSION

For all of these reasons, the Petition for Writ of Certiorari

should be granted.

Respectfully submitted,

Jon L. Kyl Bruce Norton

Jennings, Strouss & Snell & Wilmer

Salmon 3000 Valley Center

111 West Monroe Phoenix, Arizona 85073

Phoenix, Arizona 85003

C. C. Dietrich Richard N. Carpenter

550 California Street Bigbee, Byrd, Carpenter

San Francisco, California & Crout

94104 P. O. Box 669

Santa Fe, New Mexico

85701

Robert M. Westberg

Pillsbury, Madison & Sutro

225 Bush Street

San Francisco, California 94104

List of Counsel For Respective Petitioners on Next Page]

DATED: October 29, 1976

20

COUNSEL FOR PETITIONERS

WESTERN ENERGY SUPPLY AND TRANSMISSION ASSO-

CIATES, comprised of:

Arizona Electric Power Cooperative, Inc.

Arizona Power Authority

Arizona Public Service Company

Cith of Anaheim

City of Burbank, Public Service Department

City of Colorado Springs, Department of Public Utilities

City of Glendale, Public Service Department

City of Los Angeles, Department of Water & Power

City of Pasadena, Water & Power Department

Colorado-Ute Electric Association, Inc.

El Paso Electric Co.

Imperial Irrigation Listrict

Ne ada Power Co.

Pacific Power & Light Co.

l'ublic Service Co. of Colorado

Public Service Co. of New Mexico

Salt River Project Agricultural Improvement and Power

District

San Diego Gas & Electric Co.

Sierra Pacific Power Co.

Southern California Edison Co.

Tucson Gas & Electric Co.

Utah Power & Light Co.

Jon L. Kyl Bruce Norton

Jennings, Strouss & Salmon Snell & Wilmer

111 West Monroe 3000 Valley Center

Phoenix, Arizona 85003 Phoenix, Arizona 85073

UTAH INTERNATIONAL,

INC.

C. C. Dietrich Richard N. Carpenter

550 California Street Bigbee, Byrd, Carpenter &

San Francisco, California Crout

94104 P. O. Box 669

N Santa Fe, New Mexico 87501

Robert M. Westberg

Pillsbury, Madison & Sutro

225 Bush Street

San Francisco, California 94104