Reply Brief — Beame v. Friends of the Earth

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 194 7MNCHAEL RODAK, JR., CLERK

ABRAHAM BEAME, MICHAEL J. CODD, ABRAHAM

N. GOODMAN, MOSES L. KOVE, ELINOR

GUGGENHEIMER, ROBERT A. LOW, ALEX

MAUTNER, VICTOR MARRERO, MORRIS TARSHIS,

PAUL O'DWYER, THEODORE KARAGHEUZOFF,

P.E., and THE CITY OF NEW YORK,

Petitioners,

-against-

FRIENDS OF THE EARTH, FRIENDS OF THE EARTH

NEW YORK BRANCH, NATURAL RESOURCES DEFENSE

COUNCIL, INC., SIERRA CLUB, CITIZENS FOR

A BETTER NEW YORK, CITIZENS FOR CLEAN AIR,

INC., COMMITTEE FOR BETTER TRANSIT, INC.,

HARLEM VALLEY TRANSPORTATION ASSOCIATION,

INSTITUTE FOR PUBLIC TRANSPORTATION, NYC

CLEAN AIR CAMPAIGN, NEW YORK STATE TRANS-

PORTATION COUNCIL, NORTH EAST TRANSPORTA-

TION COALITION, WEST VILLAGE COMMITTEE,

DAVID SIVE and PAUL DUBRUL,

Respondents.

PETITIONER'S REPLY BRIEF

W. BERNARD RICHLAND

Corporation Counsel of the

City of New York

Attorney for Petitioners

Municipal Building

New York, N.Y. 10007

(212) 566-2091

L. KEVIN SHERIDAN,

JOSEPH F. BRUNO,

JOHN C. BRENNAN,

of Counsel

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

ABRAHAM BEAME, MICHAEL J. Copp, ABRAHAM N.

GOODMAN, MOSES L. KOVE, ELINOR GUGGEN-

HEIMER, ROBERT A. LOW, ALEX MAUTNER,

VICTOR MARRERO, MORRIS TARSHIS, PAUL

O'DWYER, THEODORE KARAGHEUZOFF, P.E.,

and THE CITY OF NEW YORK,

Petitioners,

-against-

FRIENDS OF THE EARTH, FRIENDS OF THE

EARTH NEW YORK BRANCH, NATURAL RESOURCES

DEFENSE COUNCIL, INC., SIERRA CLUB,

CITIZENS FOR A BETTER NEW YORK, CITI-

ZENS FOR CLEAN AIR, INC., COMMITTEE FOR

BETTER TRANSIT, INC., ENVIRONMENTAL

ACTION COALITION, INC., HARLEM VALLEY

TRANSPORTATION ASSOCIATION, INSTITUTE

FOR PUBLIC TRANSPORTATION, NYC CLEAN AIR

CAMPAIGN, NEW YORK STATE TRANSPORTATION

COALITION, WEST VILLAGE COMMITTEE,

DAVID SIVE and PAUL DUBRUL,

Respondents.

PRELIMINARY STATEMENT

On June 2, 1977, the City defendants

filed with this Court a petition for writ

of certiorari to the United States Court

of Appeals for the Second Circuit. Briefs

in opposition to the City's petition were

submitted by several parties, including

the United States Environmental Protec-

tion Agency (EPA).

In its petition, the City cited

Environmental Protection Agency v. Brown,

45 U.S.L.W. 4445 (May 3, 1977) and its

companion cases for the proposition that

the federal government may not require

a state to pass regulations in order to

implement its transportation control

plan (City's petition for cert., pp.

31-32). In its brief in opposition,

the EPA attemoted to distinguish these

cases from the case at bar on the ground

that, here, the New York plan had been

promulgated by the State of New York.

(EPA brief, p. 14). This reply brief

is addressed solely and specifically

to the issue raised by the EPA, i.e.,

2

the ability of the Governor to “promulgate”

a transportation control plan on behalf

of the State, and thereby irreversibly

commit the state, without legislative

approval or ratification, to a detailed

plan to discourage traffic in the Borough

of Manhattan.*

ARGUMENT

Section 110 of the Clean Air Act

(42 U.S.C. §1857c-5) provides that "“[e]ach

State shall...submit to the Administrator

¥On August 5, 1977, Mr. Justice Marshall,

in denying a stay sought’ by the City,

filed an opinion which, inter alia,

indicated that he viewed the petitioner's

arguments on the merits as less than

compelling, noting that the opinion of

the Court of Appeals appeared "facially

correct” (Opinion, p. 5). AS we read

the Rules of this Court a reply to

that opinion is not in order. We would

not, however, have our failure to

respond to it taken as acquiescence in

its correctness. Moreover, we note that

the opinion is entirely silent on this

critical issue, which is the linchpin of

EPA's argument.

~~

+++@ plan which provides for implementa-

tion, maintenance and enforcement" of air

quality standards promulgated by the

Administrator of the United States Environ-

mental Protection Agency pursuant to the

Act. In April, 1973, purportedly acting

pursuant to this provision, then Governor

Nelson Rockefeller submitted to the Admini-

Sstrator the “New York City Metropolitan

Area Air Quality Implementation Plan Trans-

portation Controls", which embodied a

number of strategies designed to discourage

automobile usage in the Borough of Manhat-

tan. The plan submitted by the Governor

had not been authorized or approved by the

New York State Legislature or, indeed, by

any other legislative body or officer.

Nevertheless, the Second Circuit Court of

4

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Appeals has held that the Governor's sub-

mission and the subsequent acceptance of

the plan by the Administrator constituted

the creation of a binding pact between the

state and federal governments, and, by

necessary implication, that the Governor

of the State of New York was possessed of

adequate power to irreversibly bind the

State and City to the terms of a far-

reaching and highly detailed plan for the

control of traffic in New York City. In

reaching this conclusion the Court of

Appeals totally ignored one of the most

fundamental precepts embodied in the con-

stitutions of the United States and each

of the fifty states: the doctrine of

separation of powers.

The powers of the Governor are set

forth in Art. 4, §3 of the New York State

Constitution, and include the power “to

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expedite all such measures as may be re-

solved upon by the legislature," and to

“take care that the laws are faithfully

executed.” It is well-settled under New

York law that the executive may not en~

croach upon the functions of the legisla-

tive branch nor interfere with its

duties. Jaffe v- McGoldrick, 285 ApP-

Div. 889, 137 N.Y.S. 2d 519, (2nd Dept.

1955); People ex rel. Ingenito vy. Warden

267 App. Div. 295,

etc. Auburn Prison,

46 N.Y¥.S. 2d 72, (4th Dept. 1943), aff'd,

293 N.Y. 803, 59 N.E. 2d 174, (1944).

This principle

tial “not to promote efficiency

of separation of powers

is essen

but to preclude the exercise of arbitrary

power. The purpose [is] not to avoid

friction, but, by means of the inevitable

ion incident to the distribution of

frict

Ae ME ER GAR Ot en Ea. et

OA LE SA CIE LM * Vita May wilt EN Mii a ne al ei Diletta Kh

governmental powers among three departments,

to save the people from autocracy." Myers

v. United States, 272 U.S. 52, 240, 293

(1926) (Brandeis, J., dissenting).

The nature and scope of executive

power was discussed by this Court in

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952). That case involved

the constitutionality of a presidential

order directing the Secretary of Commerce

to seize and operate most of the nation's

steel mills in order to avert a strike

by steel workers. The Court pointed out

that executive power must derive either

from the Constitution or from an Act of

Congress. Id., p. 585. After noting the

absence of statutory authorization for

the President's action, the Court rejected

the government's argument that seizure can

ee i Se en ee eee eee ee ee er eet

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be sustained by virtue of the constitu-

tional grant of executive power:

"In the framework of our consti-

tution, the President's power

to see that the laws are faith-

fully executed refutes the idea

that he is to be a lawmaker.

The constitution limits his

functions in the lawmaking

process to the recommending of

laws he thinks wise and the

vetoeing of laws he thinks bad.

And the Constitution is neither

silent nor equivocal about who

shall make laws which the Presi-

dent is to execute..."

Id., p. 587.*

*Although Youngstown Steel involved

issues arising under the federal

Constitution, the principles set

forth therein apply with egual force

to the case at bar, since the relevant

provisions of the New York State Con-

stitution were modeled on the federal

Constitution. The principles of

separation of power arising from the

N.Y. Constitution are thus the same

as those arising under the federal

Constitution. Cf. Loma Holding Corp.

v. Cripple Bush Realty Corp., 14

Misc. ’ oYeSe o Ce

N.Y. Co. 1933), aff'd 240 App. Div.

1028, 268 N.Y.S. 995 (lst Dep't 1934),

aff'd 265 N.Y. 463, 193 N.E. 272

(1934).

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The power of a governor to enter

into binding contracts with respect

to matters falling within the province

of the legislature was dealt with by

this Court in Washington Market Co. v.

District of Columbia, 172 U.S. 361

(1899). That case involved a suit

by a public market seeking, inter alia,

damages stemming from alleged wrongful

interference by the District with

rights arising under a contract

between the plaintiff and the governor.

In finding that the Governor lacked

the authority to bind the District,

the Court held:

"The making of regulations with

respect to the use of the market

grounds and the establishment of

a tariff of charges .... were

beyond question within the pro-

vince of the Legislative Assembly,

and any assumption on the part

of the Governor, either with

or without the sanction of the

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Board of Public Works, of autho-

rity to conclude the Legislative

Assembly in such matters, would

have been purely ultra vires."

Id., p. 370.

In the case at bar, it is clear that

the strategies agreed to by former

Governor Rockefeller, e.g., the imposition

of tolls on certain bridges, are by their

nature legislative actions. Yet it is un-

disputed that the Legislature at no time

approved or authorized the challenged

Transportation Control Plan, nor did the

Legislature delegate to the Governor

power to irreversibly commit the State

to a far-reaching scheme which, although

directed ostensibly at reducing air pollu-

tion and controlling traffic in the New

York Metropolitan area, will have a severe

negative impact on the economy of New

York City and the life styles of its

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residents. In thus purporting to bind the

State, former Governor Rockefeller clearly

exceeded his executive authority and

infringed upon the powers of the Legisla-

ture. Under the rule set forth in

Washington Market Co. v. District of

Columbia, supra, his attempt to commit

the State must be treated as ultra vires,

and the State cannot be deemed bound by

his action.

Dated: New York, New York

September, 1977

Respectfully submitted,

W. BERNARD RICHLAND

Corporation Counsel

City of New York

Attorney for Petitioner

Municipal Building

New York, New York 10007

(212) 566-2091

L. KEVIN SHERIDAN,

JOSEPH F. BRUNO,

JOHN C. BRENNAN,

of Counsel.

LL