Opposition — Union Electric Co. v. Environmental Protection Agency

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AUG 7 1979 CO

No. 78-1844 [

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In the Supreme Court of the Mnited States

OcToBEeR TERM, 1978

UNION ELECTRIC COMPANY, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE ENVIRONMENTAL PROTECTION

AGENCY IN OPPOSITION

Wave H. McCrer, Jr.

Solicitor General

James W. MoorMAN

Assistant Attorney General:

Jacques B. GELIN

BARBARA BRANDON

MARTIN GREEN

Altorneys

Depariment of Justice

Washington, D.C. 20530

In the Supreme Court of the United States

OcTOBER TERM, 1978

No. 78-1844

UNION ELECTRIC COMPANY, PETITIONER *

Vv.

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

BRIEF FOR THE ENVIRONMENTAL PROTECTION

AGENCY IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A-I to

A-18) is reported at 593 F. 2d 299. The opinion of the

district court (Pet. Supp. App. SA-1 to SA-23) is reported

at 450 F. Supp. 805.

JURISDICTION

The amended judgment of the court of appeals (Pet.

App. A-19) was entered on February 20, 1979. A petition

for rehearing was denied on March 15, 1979 (Pet. App. A-

20). The petition for a writ of certiorari was filed on June

11, 1979. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

QUESTION PRESENTED

Whether a source of air emissions that has received a

notice of violation under Section 113(a) of the Clean Air

Act, 42 U.S.C. 1857c-8(a), may maintain an action to

enjoin the Environmental Protection Agency from

enforcing the emission limitations that allegedly have been

violated.

STATEMENT

-Petitiener’s three coal-fired electric generating plants

are subject to sulfur dioxide and opacity restrictions

under the Missouri Implementation Plan, adopted under

the Clean Air Act, 42 U.S.C. 1857 ef seq.,' and approved

by the Environmental Protection Agency in May 1972

(Pet. App. A-3). Cf. Union Electric Co. v. EPA, 427 U.S.

246 (1976). Under Section 113(a) of the Act, 42 U.S.C.

1857c-8(a), the EPA notified petitioner in January 1978

that the restrictions applicable to two of the three

generating plants were being violated. At the time

petitioner received this notice of violation, it was

attempting, in administrative proceedings before the

Missouri Air Conservation Commission, to secure a

variance in the sulfur dioxide standards applicable to its

plants. .

After receiving the notice of violation, petitioner filed

this action in the United States District Court for the

Eastern District of Missouri. The complaint sought a stay

of any enforcement proceedings that the EPA might

conduct, pending completion of the state administrative

proceeding in which petitioner was engaged. The district

'As a consequence of the Clean Air Act Amendments of 1977, Pub.

L. No. 95-95, 91 Stat. 685, the Act will be recodified at 42 U.S.C.

7401 ef seq.

court granted the relief requested. The court enjoined the

EPA from instituting any enforcement proceeding against

petitioner while petitioner was “actively and in good faith

pursuing a revision or variance of the sulphur dioxide

regulations of the Missouri Implementation Plan in the

administrative agencies and/or courts of the State ol

Missouri” (Pet. Supp. App. SA-23).

While the EPA’s appeal from the preliminary injunc-

tion was pending, the Missouri Air Conservation

Commission granted petitioner's requested variance in the

sulfur dioxide standards. A petition to review that

variance is now pending in the Missouri state courts.

The variance granted by the Missouri Air Conservation

Commission applied only to sulfur standards; petitioner

did not seek, and the Commission did not grant, 4°

variance with respect to the opacity standards applicable

to petitioner's electric generating plants. Nor did the

district court's preliminary injunction stay enforcement

proceedings concerning petitioner's alleged olation of

the opacity regulations (see Pet. App. A-I1 n.5). The

sulfur dioxide variance granted by the Commission

cannot become effective until approved by the EPA (see

Pet. App. A-7 n.2), and the EPA has not yet decided

whether to grant such approval.

In September 1978, while the appeal from the

preliminary injunction was still pending, the EPA advised

petitioner that “notwithstanding any decision by the

Eighth Circuit Court of Appeals to vacate the preliminary

order of the District Court, the EPA will not initiate any

enforcement proceedings against [petitioner] relative to

violations of the federally appreved sulfur dioxide

regulation until EPA, Region VII has _ informed

[petitioner] in writing of its decision regarding a

recommended approval or disapproval of the variance,

which would of course be followed by a notice of

proposed rulemaking and public comment period” (Reply

Br. for the EPA, App. B at 48; see Pet. App. A-16 n.8).

The court of appeals reversed the district court's

decision and dismissed petitioner's complaint. The court

held that “federal courts should not interfere with the pre-

enforcement procedures established by the [Clean Air]

Act to obtain compliance” (Pet. App. A-13). The court

stated that petitioner's grievances, including any claims of

economic and technological infeasibility, could be raised

in future enforcement proceedings, but could not provide

a basis for enjoining the EPA’s enforcement efforts (Pet.

App. A-16 to A-17).

ARGUMENT

The decision below is correct and does not conflict with

Ex parte Young, 209 U.S. 123 (1908). Petitioner has not

been deprived of due process and, indeed, the ruling of

the court of appeals is unlikely even to cause petitioner

any inconvenience. Further review is not warranted.

A notice of violation is the statutorily required first step

in a process designed to secure compliance with the

emission limitations of the State Implementation Plans

promulgated under the Clean Air Act. The sole issue

raised in this litigation, and the sole issue decided by the

court of appeals, is whether a party receiving a notice of

violation is entitled to maintain a suit to enjoin the EPA

from proceeding with enforcement of the standards that

allegedly have been violated. The court of appeals’

decision, that injunctive relief is not available at this early

stage of the enforcement process, was correct, for the

reasons set forth in the court's opinion.

No question of due process is raised by this case. The

State of Missouri has granted a variance in the sulfur

dioxide emissions permissible under the State Implemen-

tation Plan, and the EPA’s regional office, which must

decide whether to recommend approval of the variance,

has voluntarily undertaken not to bring any enforcement

action against petitioner until that decision is made. If the

variance is approved, the EPA will take no further action

concerning petitioner’s sulfur dioxide emissions (assum-

ing, of’course, that those emissions meet the standards set

forth in the variance).

On the other hand, if the EPA's regional office

recommends disapproval of the variance, then petitioner

will remain free to raise its arguments concerning

economic and technological infeasibility in any enforce-

ment proceeding that may ensue. Apparently because the

EPA retains the power to enforce the emission limitations

contained in the State Implementation Plan, petitioner

raises the spectre of Ex parte Young, supra, and contends

(Pet. 10-12) that, before it runs the risk of incurring

further liability under the Clean Air Act, it is entitled to

challenge the validity of the limitations imposed by the

Missouri plan. But, as this Court observed in Union

Electric Co. v. EPA, 427 U.S. 246, 266 (1976), Congress

intended that judicial consideration of claims of economic

and technological infeasibility under the Act should occur

only when it “will not substantially interfere with the

primary congressional purpose of prompt attainment of

the national air quality standards.” The Court suggested

that such claims could be resolved most expeditiously

before the state agency formulating the implementation

plan’ or on judicial review of the plan and its exemptions

in state court (id. at 266-267).

?Missouri law requires the State Air Conservation Commission to

use only “practical and economically feasible methods” in controlling

air pollution. This limitation covers all the Commission's activities,

including its work in devising an implementation plan under the

Here, Missouri law provided petitioner with an

opportunity to challenge the State Implementation Plan,

but petitioner failed to take advantage of the statutory

procedure for obtaining judicial review. See Mo. Ann.

Stat. §203.130 (Vernon 1972) and §536.050 (Vernon

1953). Ex parte Young, supra, is therefore distinguishable;

the premise of the Court’s holding in that case was that

the railroads could not obtain review of Minnesota’s rate

regulation legisiation without violating the statute and

thereby risking severe penalties. As the Second Circuit has

explained:

Young [and cases following it] * * * establish that

one has a due process right to contest the validity of

a legislative or administrative order affecting his

affairs without necessarily having to face ruinous

penalties if the suit is lost. The constitutional

requirement is satisfied by a statutory scheme which

provides an opportunity for testing the validity of

statutes or administrative orders without incurring

the prospect of debilitating or confiscatory penalties.

Brown & Williamson Tobacco Corp. v. Engman, 527 F.

2d 1115, L119 (2d Cir. 1975}, cert. denied, 426 U.S. 911

(1976).

The harshness of the choice confronting the railroads in

Young is simply not present here. In addition to the

opportunity for advance negotiation with the state agency

responsible for the implementation plan and in addition

to the Missouri statutory procedure for judicial review of

the agency’s decision, the variance mechanism that

Clean Air Act. Mo. Ann. Stat. §203.030 (Vernon 1972). In addition,

Missouri law provides that the Commission may adopt no “standard,

rule or regulation” without first holding a public hearing in

accordance with Mo. Ann. Stat. §203.070 (Vernon 1972).

petitioner has already used and the remedial discretion

lodged in the EPA inject ample flexibility into the

regulatory scheme. As this Court noted in Union Electric

v. EPA, supra, 427 U.S. at 268:

When a source is found to be in violation of the state

implementation plan, the Administrator may, after a

conference with the operator, issue a compliance

order rather than seek civil or criminal enforcement.

Such an order must specify a “reasonable” time for

compliance with the relevant standard, taking into

account the seriousness of the violation and “any

good faith efforts to comply with applicable

requirements.” §113(a)(4) of the Clean Air Act, as

added, 84 Stat. 1686, 42 U.S.C. §1857c-8(a)(4).

Claims of technological or economic infeasibility, the

Administrator agrees, are relevant to fashioning an

appropriate compliance order under §113(a)(4).

Finally, of course, judicial review of the economic and

technological feasibility of particular emission limitations

may be available in any civil or criminal enforcement

action that the EPA chooses to pursue. See /ndiana &

Michigan Electric Co. v. EPA, 509 F. 2d 839, 847 (7th

Cir. 1975); Buckeye Power, Inc. v. EPA, 481 F. 2d 162,

173 (6th Cir. 1973) (both indicating that infeasibility

arguments can be considered in enforcement proceedings).

See also Union Electric Co. v. EPA, supra, 427 U.S. at

268 n.18 (explicitly refusing to address the question

whether claims of economic or technological infeasibility

may be raised as a defense in an EPA enforcement

proceeding). Indeed, in Union Electric v. EPA, supra,

where petitioner argued that claims of economic or

technological infeasibility should be cognizable on review

of the EPA’s decision to approve a state implementation

plan, petitioner conceded that all due process re-

quirements would be satisfied if such claims could be

raised as a defense in an enforcement action (Pet. Br. 31

(No. 74-1542)).

The court of appeals’ decision in the present case does

nothing more than free the EPA to fulfill its statutory

obligation to enforce the Clean Air Act. No penalties of

any kind have yet been imposed on petitioner, and the

court of appeals’ ruling does not mean that petitioner's

infeasibility arguments cannot be asserted in any future

enforcement proceeding that the EPA may conduct.

Further review is inappropriate at this stage.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

JACQUES B. GELIN

BARBARA BRANDON

MARTIN GREEN

Attorneys

AuGusT 1979

DOJ-1979-08

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