Opposition — Ohio Edison Co. v. Williams

IN THE

Supreme Court of the United

OCTOBER TERM, 1978

x

No. 78-1163

OHIO EDISON COMPANY,

Petitioner,

v.

NED E. WILLIAMS (succeeded

by James F. McAvoy), DIRECTOR

OF ENVIRONMENTAL PROTECTION,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR A WRIT OF

CERTIORARI TO THE SUPREME

COURT OF OHIO

|

WILLIAM J. BROWN

Attorney General of Ohio,

DAVID E. NORTHROP

Assistant Attorney General

Environmental Law Section

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-2766

ATTORNEY FOR RESPONDENT

INDEX Contd.

TABLE OF AUTHORITIES

Cases:

Abbott Laboratories v. Gardner,

tT ee eee

Burger Brewing Co. v. Liquor Control Commission,

96 Chile 9. BHOS (1O7M. .. os even vad ek cows

Cleveland Electric Illuminating Co. v. Williams,

55 Ohio App.2d 272 (Franklin County, 1977)...

Ex parte Young,

yo a Tey

Fuentes v. Shevin,

407 U.S. 67 at 80 (1972)... 1... cee eee eee

St. Louis, lron Mountain and Southern Railway

Company v. Williams, 251 U.S. 63 (1919)......

State ex rel. Williams v. Bozarth,

55 Ohio St.2d 34 (1978)... 2. cece ccccces

Wadley Southern Railway Company v. Georgia,

Sew US. O68 CURSE oss. casedavcesvasetons

State Statutes and Regulations:

Section 119.03, Ohio Revised Code ..............

Chapter 3704, Ohio Revised Code. ...............

Section 3704.03(S), Ohio Revised Code...........

Section 3745-17-04, Ohio Administrative Code .....

Section 3745-17-10, Ohio Administrative Code .....

Section 3745-17-13, Ohio Administrative Code .....

Section 3745-35-03, Ohio Administrative Code .....

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1163

OHIO EDISON COMPANY,

Petitioner,

Vv.

NED E. WILLIAMS (succeeded

by James F. McAvoy), DIRECTOR

OF ENVIRONMENTAL PROTECTION,

Respondent.

STATEMENT OF THE CASE

1. Nature of the Case

This matter arose upon application by Petitioner Ohio Edi-

son Company for variances from air pollution abatement re-

quirements imposed by regulations of the Ohio Environmental

Protection Agency. Ohio Edison appeals from the order of Re-

spondent Director of Environmental Protection denying the ap-

plications, and refusing to permit the administrative evidentiary

hearing, held to grant Ohio Edison the opportunity to demon-

strate its eligibility for variances under applicable regulations, to

be converted into a forum for a broad-based challenge to air

contaminant emission standards. Ohio Edison now claims that

the Director's refusal to ignore or invalidate his regulations in a

quasi-judicial context is a violation of the Due Process Clause of

the Fourteenth Amendment.

2. Course of Proceeding

In February, 1972, the Air Pollution Control Board promul-

gated regulations to remedy the pervasive problem of poor air

quality in Ohio. The regulations resulted from amendment, in

1971, of Chapter 3704, Revised Code, in which the Ohio General

Assembly granted the Board the authority necessary so that

Ohio would “comply with the 1970 amendments of the Federal

Clean Air Act,” uncodified Section 4, Amended Substitute Sen-

ate Bill No. 370, 134 Laws of Ohio, page 650. The regulations

established ambient air quality standards (prescribing concen-

trations of pollutants in the outdoor air necessary to protect

public health and welfare), emission standards (applicable to

each source of air contaminants), and regulations governing the

issuance of permits and variances. The latter regulation unam-

biguously limited issuance of variances — which authorize

emissions in excess of applicable emission standards — to con-

taminant sources which would commit to an abatement pro-

gram resulting in compliance with emission standards, and

prescribed dates beyond which variances would no longer issue.

The regulations are now administered by the Director of En-

vironmental Protection, and are substantially unchanged from

their original promulgation over seven years ago. The variance

regulation, now numbered OAC 3745-35-03 (Appendix L, p. 156a,

Petition for Writ of Certiorari), has been amended to extend the

deadline dates, but has never been altered so as to delete the

requirements of ultimate compliance with emission standards

(OAC 3745-35-03(F) (1)), and the preclusion of issuance of vari-

ances beyond a specified date (OAC 3745-35-03(F) (2)).

Ohio Edison, in August of 1972, applied for variances for air

contaminant sources at twelve facilities within the State of Ohio.

The applications did not, despite the clear provisions of OAC

3745-35-03, commit Ohio Edison to timely compliance with

emission standards, but rather sought to challenge the air pollu-

tion regulatory code as unlawful and therefore inapplicable to

Ohio Edison. The Director was requested, in effect, to respond

to Ohio Edison’s applications by declaring his own regulations

unlawful and granting to Ohio Edison a new, lenient emission

standard in an administrative order to be denominated a

“variance.”

The Director declined Ohio Edison’s request to ignore his

own regulations, but rather, in May, 1973, issued proposed vari-

ances to Ohio Edison which, as required by OAC 3745-35-03,

contained schedules by which applicable emission standards

were to be attained. Ohio Edison, in June, 1973, requested ad-

judication hearings, thereby preventing the proposed variances

from becoming final until completion of hearing proceedings. At

hearing, Ohio Edison did not attempt to demonstrate its eligibil-

ity for variances under OAC 3745-35-03, but rather adduced

evidence upon which the Director was requested to rule that

OAC 3745-17-10, OAC 3745-17-13, and OAC 3745-35-03, in spite

of their clear applicability to Ohio Edison, were to be shunted

aside and variances issued containing more lenient terms ac-

ceptable to Ohio Edison. Thus, Ohio Edison persisted in its

quest for a rewriting of the air pollution regulatory code.

On December 12, 1974, the Director issued his decision

(Appendix G, p. 27a, Petition for Writ of Certiorari). Because he

was now convinced that his sulfur dioxide emission standard

regulation, OAC 3745-17-13, was more stringent than necessary

to achieve the purposes of Chapter 3704, Revised Code, the

Director appropriately declined to issue the variances sought by

Ohio Edison, for, as required by OAC 3745-35-03(F) (1), such

variances would necessarily contain a schedule within which

Ohio Edison would be quired to comply with such emission

standard. As to emissior.: of particulate matter, however, the

Director found no reason tu further delay compliance with the

emission standard regulation. He therefore issued an enforce-

ment order pursuant to Section 3704.03(S), Revised Code, re-

quiring that Ohio Edison's facilities comply with the particulate

matter emission standard, either through installation of abate-

ment equipment or phase out of the facility, by April 15, 1977, the

date prescribed by OAC 3745-17-04 upon which the ambient air

quality standards were to be attained. The Director again

explicitly declined to rewrite his regulations, stating, at page 16

of his opinion (Appendix G, p. 40a, Petition for Writ of Cer-

tiorari):

The Director is bound by law and his own regulations to

base his final decision in any adjudication hearing solely

on the evidence presented in the record. When deciding

the outcome of an adjudication hearing, the Director can

not act in a legislative (rulemaking) capacity. He must act

as judge.

And, at page 20 (p. 44a, Petition for Writ of Certiorari):

The Director is not at liberty to address the general

validity of his own regulations in the context of this final

findings and order. Regulations may be amended or

rescinded only through the procedures established in

Section 119.03 of the Ohio Revised Code.

Therefore, the quasi-judicial rulemaking sought by Ohio Edison

was not forthcoming from the Director.

In January, 1975, Ohio Edison and other utility companies

subject to the Director's decision and orders appealed to the

Environmentai Board of Review. The Board separated the

utilities for purposes of deciding the appeals, and decided the

appeal of the Cleveland Electric Illuminating Co. first, in October

of 1976. Cleveland Electric’s appeal reached this Court through

filing of a Petition for Writ of Certiorari on July 27, 1978 (No.

78-152). The Petition, which presented, inter alia, the identical

issue presented by the instant Petition, was denied on October

2, 1978.

The Board rendered its decision regarding Ohio Edison's

appeal on May 20, 1977. As with the Cleveland Electric appeal,

the Board affirmed the Director's refusal to engage in de facto

rulemaking in the context of a quasi-judicial administrative hear-

ing. The Board further affirmed the Director's order insofar as it

required Ohio Edison to comply with Ohio EPA's particulate

matter emission standard, but extended the time for such com-

pliance by requiring the Director to issue variances beyond the

dates provided by OAC 3745-35-03(F) (2) beyond which vari-

ances may not issue.

Both the Director and Ohio Edison appealed to the Court of

Appeals for Franklin County, Ohio. The Director argued, and the

court held (Appendix D, p. 7a, Petition for Writ of Certiorari), that

the deadline dates and other provisions of OAC 3745-35-03 are

lawful as a matter of Ohio law, and therefore reversed the Board

insofar as the Board ordered issuance of variances beyond such

dates. Tne court affirmed the Director and the Board in holding

that a quasi-judicial administrative hearing presented Ohio Edi-

son the opportunity to demonstrate its eligibility for variances

under the regulatory code, but did not constitute a forum in

which Ohio Edison could mount a broad-based attack upon air

pollution regulations: The court held that such an attack could

be made in defense to an action brought by the Director to

enforce the regulations. Because Ohio Edison was ciearly ineli-

gible for variances under the OAC 3745-35-03, the court declined

to address Ohio Edison's other assignments of error, the dispo-

sition of which would not affect the judgment of the court or

proceedings on remand.

Upon appeal, the Supreme Court of Ohio refused jurisdic-

tion, noting “that no substantial constitutional question exists

herein.” (Appendix A, p. 1a, Petition for Writ of Certiorari).

Ohio Edison, on January 25, 1979, filed its Petition for Writ

of Certiorari.

QUESTION PRESENTED

Does the Due Process Clause require the Ohio Director of

Environmental Protection, in an administrative hearing re-

quested by an applicant for a variance from air pollution abate-

ment requirements, to give cognizance to such applicant's

broad-based challenge to such requirements, when to do so

would offend settled notions of Ohio administrative law, and any

variance issuing as a result of such challenge would contravene

the clear terms of the lawful regulation governing issuance of

such variances?

REASONS FOR DENYING THE PETITION

FOR WRIT OF CERTIORARI

1. The Question Presented Here Is Identical To That Pre-

sented By Petitioner Cleveland Electric Illuminating

Company In No. 78-152, Which Petition Was Denied By

This Court On October 2, 1978.

This petition is the companion of an earlier petition of the

Cleveland Electric Illuminating Co. in No. 78-152. The December

12, 1974, decision of Respondent Director was issued at the

close of a consolidated proceeding in which both Cleveland

Electric and Ohio Edison participated as parties, and from

which both appealed. The Environmenta! Board of Review de-

cided Cleveland Electric’s appeal approximately seven months

prior to deciding the Ohio Edison appeal, even although both

appeals presented virtually identical issues of law. Conse-

6

quently, the decisions of the Ohio appellate courts, and the

petitions for writ of certiorari, are separated by several months.

In every tribunal, both Cleveland Electric and Ohio Edison

have argued that they should be permitted to attack applicable

regulations rather than adduce evidence to demenstrate eligibil-

ity for variances under OAC 3745-35-03. Both petitions for writ of

certiorari contend that the Due Process Clause requires the

Director to grant the requested relief, i.e., that the narrowly-

defined administrative hearing below be distorted into a virtually

boundless proceeding in which nearly every air pollution issue

may be litigated, see Petition for Writ of Certiorari, No. 78-152, at

pages 16 through 18.

There is nothing to distinguish this petition from that in No.

78-152. Accordingly, this petition should be denied for the same

reasons which support denial of the earlier petition.

2. The Due Process Clause Does Not Require That A

State Provide A Forum Within Which An Air Polluter

May Mount A Pre-enforcement Challenge To Emission

Standard Regulations.

The contention of Ohio Edison is two-fold: a.) that the Due

Process Clause requires a state to provide a forum for a pre-

enforcement challenge to emission standards; and b.) that the

Due Process Clause required Respondent Director to convert

the administrative hearing below into such a forum, despite

contrary provisions in a regulation held lawful under state law.

Both contentions lack merit.

There is no dispute between the parties that the Due Pro-

cess Clause requires a state to provide an opportunity to a

regulatee to mount a defense to regulatory requirements “at

a meaningful time and in a meaningful manner,” Fuentes v.

' Shevin, 407 U.S. 67, at 80 (1972). Rather, the parties dispute

whether Ohio Edison had available to it a pre-enforcement re-

medy that it chose not to employ, and, if not, whether its con-

ceded opportunity to challenge regulations as a defense to an

enforcement action (unless waived or barred by res judicata or

tite such doctrine) constitutes a meaningful opportunity to be

eard.

7

Assuming, arguendo, that Ohio Edison may only challenge

applicable emission standards as a defense to an enforcement

action, Ohio Edison has not demonstrated that such offends the

Due Process Clause. Ohio Edison relies exclusively on Ex parte

Young, 209 U.S. 123 (1908). There, the Court, in an extremely

narrow holding, ruled that the Due Process Clause prevents a

state from establishing mandatory rates for a railroad, and, in

the absence of a pre-enforcement remedy, providing such harsh

penalties for violating such rate requirements that the railroad

will not risk non-compliance so as to challenge the rates in the

resultant enforcement action. The Court concluded that such a

scheme wholly deprived the regulatee of a meaningful opportu-

nity to challenge the rates.

Young does not govern here for two reasons. First, as dis-

cussed more fully below, Ohio Edison had available to it a pre-

enforcement remedy it chose not to employ. Second, Young

rests upon the fact that the penalties for non-compliance were

so extreme that the railway chose to comply rather than risk

enforcement. In the present case, as is clear from the Petition for

Writ of Certiorari, Ohio Edison has chosen not to comply, but

rather to persist in an ill-chosen course of administrative litiga-

tion. Clearly, therefore, the risks of being subjected to penalties

in enforcement did not coerce Ohio Edison into compliance, as

had occurred in Young. Therefore, a requisite of the holding and

discussion in Young is lacking, rendering the case distinguish-

able from the case at bar.

Moreover, the Court indicated in Abbott Laboratories v.

Gardner, 387 .U.S. 136 (1967), that the constitution does not

require provision of a pre-enforcement remedy against adminis-

trative regulations. The Court concluded, on the basis of statu-

tory provisions, that a pre-enforcement remedy existed against

the regulations there at issue. The Court noted, however, that

had the intent of Congress been to the contrary, the Court would

be bound thereby, thus necessarily concluding that Congress is

under no constitutional mandate'to provide the pre-enforcement

remedy. Such is apparent from the passage set forth at page

153:

Where the legal issue presented is fit for judicial resolu-

tion, and where a regulation requires an immediate and

significant change in plaintiffs’ conduct of their affairs

with serious penalties attached to noncompliance, ac-

cess to the courts under the Administrative Procedure

Act and Declaratory Judgment Act must be permitted,

absent a statutory bar or some other unusual circum-

stance, neither of which appears here. (Emphasis

added).

Because Congress may impose “a'statutory bar" to availability

of a pre-enforcement remedy, such a remedy cannot be required

by the Due Process Clause.

Therefore, Ohio Edison's invitation to the Court to expand

the Due Process Clause well beyond its recognized scope

should be declined.

3. Ohio Edison Had Available To it A Pre-enforcement

Remedy It Chose Not To Employ.

The holding in Young is premised on the conclusion that the

railway did not have available to it a pre-enforcement remedy

against the prescribed rates, and that the enforcement defense

remedy was effectively foreclosed. By contrast, Ohio Edison had

a pre-enforcement remedy.

The emission standards of which Ohio Edison complains

were effectuated by the now defunct Air Pollution Control Board

in February of 1972. No exclusive statutory scheme had been

established for review of such regulations, and Ohio Edison

therefore had available to it an action in declaratory judgment to

challenge the lawfulness of the emission standards, Burger

Brewing Co. v. Liquor Control Commission, 34 Ohio St.2d 93

(1973). It was not until October of 1972 that the General Assem-

bly extinguished the availability of declaratory judgment by

creation of the Environmental Protection Agency subject to ex-

clusive review in the Environmental Board of Review, State ex

- rel. Williams v. Bozarth, 55 Ohio St.2d 34 (1978). Therefore, for

over eight months, Ohio Edison sat on a pre-enforcement re-

medy against emission standards. Ohio Edison, however, made

the deliberate choice to attempt to convert the licensing pro-

ceeding for a variance into a forum for its broad-based chal-

lenge to the emission standards. As the court ruled below, the

variance proceeding may not be converted into such an ad hoc

rulemaking proceeding. Therefore, Ohio Edison simply erred in

picking the wrong remedy, and should not now rely on the Due

Process Clause to rectify its error.

The availability of the pre-enforcement remedy renders

Young inapposite. In both Wadley Southern Railway Company v.

Georgia, 235 U.S. 641 (1915), and St. Louis, Iron Mountain and

Southern Railway Company v. Williams, 251 U.S. 63 (1919), the

Court refused to apply the doctrine of Young on the ground that

the railways had had an opportunity to challenge the rates in a

forum other than in defense to enforcement. The Court's final

paragraph in Wadley is pertinent here, 235 U.S. at 699:

But where, as here, after reasonable notice of the mak-

ing of the order, the carrier failed to resort to the safe

adequate, and available remedy by which it could con-

test in the courts its validity, and preferred to make its

defense by attacking the validity of the order when sued

for the penalty, it is subject to the penalty when that

defense, as here, proved to be unsuccessful. (Emphasis

added).

Ohio Edison, having chosen to forego declaratory judgment,

should be left to its defenses in enforcement, and should not be

permitted, on spurious due process grounds, to stretch its

licensing proceeding well beyond its appropriate scope.

4. Even if Correct, Ohio Edison's Due Process Analysis Is

Not Necessarily Applicable To The Administrative Pro-

ceeding Here At Issue.

Ohio Edison's contention that the Due Process Clause re-

quires provision of a pre-enforcement remedy, even if correct,

does not compel the conclusion that the licensing proceeding

below must constitute that remedy. Surely, it is the state which

must determine how to provide such a remedy, either by de-

claratory. judgment, administrative proceeding, or otherwise.

But Ohio Edison argues that it is this licensing proceeding

which must be regarded as the due process hearing in which to

challenge emission standards. Surely, the Due Process Clause is

not so specific as to require the state to endorse a regulatee's

choice of the forum such regulatee chooses to employ in mount-

ing its challenge to regulatory requirements.

Therefore, because Ohio's purported duty to provide to

Ohio Edison a pre-enforcement remedy may exist independently

from the administrative proceeding below, review and remand

are inappropriate.

i i

10

5. The Alleged Error Did Not Alter The Result, And Is

Therefore Not Prejudicial.

Lastly, even if the Director erred in not permitting the chal-

lenge to emission standards, such error was not prejudicial, and

therefore should not be the subject of appellate review. The

Proceeding arose upon applications for variances, which are

governed by OAC 3745-35-03. Subsection (F) (2) of that regula-

tion flatly forbids issuance of variances after specified and now

expired deadline dates. The deadline dates have been upheld as

authorized by and consistent with Ohio law, Cleveland Electric

Illuminating Co. v. Williams, 55 Ohio App.2d 272 (Franklin

County, 1977). Therefore, Ohio Edison's challenge to emission

Standards, even if successful, would not have served as a basis

upon which variances could issue.

In this sense, therefore, Ohio Edison seeks a forum in which

the Director is to issue an advisory opinion regarding his emis-

sion standards. Such, Surely, is not mandated by any accepted

notion of due process.

CONCLUSION

Ohio Edison has not demonstrated that the denial of vari-

ances in accordance with a lawful state regulation has offended

the Due Process Clause. Accordingly, Ohio Edison has not pre-

sented a case to this Court in which “a state court has decided a

federal question of substance not theretofore determined by this

court, or has decided it in a way probably not in accord with

applicable decisions of this court,’ U.S. Sup. Ct. Rule 19(1) (a).

Therefore, a writ of certiorari should not issue.

Respectfully submitted,

WILLIAM J. BROWN

ATTORNEY GENERAL OF OHIO

DAVID E. NORTHROP

Assistant Attorney General

Environmental Law Section

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-2766

Attorney for Respondent

——

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