Reply Brief — Union Electric Co. v. Environmental Protection Agency

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

PETITIONER’S REPLY TO BRIEF FOR THE

ENVIRONMENTAL PROTECTION AGENCY

IN OPPOSITION

WILLIAM H. FERRELL

314 North Broadway

St. Louis, Missouri 63102

Counsel for Petitioner

STEWART W. SMITH, JR. AND

SCHLAFLY, GRIESEDIECK,

FERRELL & TOFT

Of Counsel

SOREL AST LESS OES ERTS SARTO RE TEE

St. Louis Law Printing Co.. Inc.. 812 Olive Street 63101 314-231-4477

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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

PETITIONER’S REPLY TO BRIEF FOR THE

ENVIRONMENTAL PROTECTION AGENCY

IN OPPOSITION

In this reply we direct our attention to new material in the

Environmental Protection Agency (EPA) brief, which is sig-

nificant and either factually or legally inaccurate. And in doing

so we divide our reply between the three headings on pages 2

et seq. of such brief.

QUESTION PRESENTED

The EPA has abbreviated its statement of the question pre-

sented so as to exclude the facts in this case which give rise

a Oa

to the constitutional issue. Thus the EPA’s emasculated state-

ment would be correct if it were qualified and followed by these

facts

“(1) when by such enforcement the source and its re-

sponsible corporate officers incur the risk of severe and

confiscatory civil and criminal penalties, (2) when the

source is legally testing the validity of the application to

it of those emission limitations and (35) when the source’s

actual emissions present no danger to the public health or

welfare—indeed when, as here, it is admitted by all par-

ties that such actual emissions do not impair the mainte-

nance of National Ambient Air Quality Standards.”

As so qualified the question presented is an accurate and fair

one. As emasculated by the EPA, it is neither.

STATEMENT

While the EPA’s statement is not wholly correct, the inac-

curacies are principally factual omissions revolving around the

EPA’s refusal (as stated in the preceding section of this brief)

to recognize the existence of those facts which give rise to an

important constitutional question. Since these facts have been

stated in our Petition for Certiorari (pp. 2 et seq.), we do not

believe this Court should consider itself impeded by any lack of

them in resolving our certiorari request.

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ARGUMENT

Respondent EPA commences its argument by stating that

“the ruling of the court of appeals is unlikely even to cause

petitioner any inconvenience” (p. 4 of EPA brief). The ap-

parent basis for this statement is the September 1978 letter

from the “Director, Enforcement Division, EPA Region VII”

to Petitioner, which said, among other things, that “EPA will

not initiate any enforcement proceedings against (Petitioner)

relative to violations of the federally approved 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 fol-

lowed by a notice of proposed rulemaking and public comment

period.”?

Although the EPA characterizes its non-enforcement letter

as “voluntary,” it should be pointed out that at the time it was

written a Federal District Court order prohibited enforcement

and since that time the issue has been in litigation before the

federal courts. The “stay” granted by the EPA is illusory be-

cause it could be revoked at any time (and probably would be

if the issue was not in litigation).

The Clean Air Act Amendments of 1977 (42 U.S.C. Section

7413) authorize the EPA Administrator to seek civil and crim-

inal penalties 30 days after notifying a party of alleged viola-

tions. Petitioner has been notified and the 30 days have expired.

The “stay” can be revoked at any time and Petitioner will be

liable from that date forward to draconian penalties prescribed

by the Amendments. Due process of law should not be de-

pendent upon the whim of the EPA Administrator.

1 See pages 3-4 of EPA brief.

we

It is apparent that the EPA staff does not intend to adhere to

the fundamental rights of due process. In its nonenforcement

letter, the EPA staff states that the “stay” would continue only

until it makes a recommendation, not until a final decision is

made. It is willing to subject the Petitioner to the severe penal-

ties prescribed by the Amendments before the decision making

process is complete.

Issuance of the “notice of violation” in January 1978 com-

menced the process prescribed under the Clean Air Act Amend-

ments. It is imperative that the Petitioner not be subject to the

whim of the EPA in deciding when it will commence enforce-

ment actions. A judicially-enforceable stay is required by the

holding in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441

(1908). The constitutional protection recognized by this Court

in that case is against the risk of incurring severe and con-

fiscatory fines and penalties, when, as here, petitioner and its

officers must pass upon the question at their own risk.”

On page 5 of its brief the EPA refers to this Court’s observa-

tion in Union Electric v. EPA, 427 U.S. 246, 266 (1976) that

“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 attain-

ment of the national air quality standards’.”

But as we have previouslv pointed out, consideration of such

claims in the instant case will not interfere in any respect with

the congressional purpose of attainment (or of maintenance

for that matter) of national air quality standards. This is

necessarily true, since all parties admit that a continuance of

* See Wadley Southern R. Co. v. Georgia, 235 U.S. 651, 35 S.Ct.

arty aay (1915) and the quotation therefrom on p. 10 of the Pet.

or Cert.

SS

—

present SO, emissions will not interfere, substantially or other-

wise, with the maintenance of such standards.

Unquestionably the most mystifying aspect of this case is the

establishment and enforcement as federal law of emission limi-

tations which are not geared to national air quality standards,

but which are mandated by states and which may satisfy any

state whim.* We respectfully submit that the U.S. Constitution,

and this Court’s interpretation of it in Ex parte Young, cited

supra, demand the striking of a better balance.

On page 6 of its brief, the EPA says: —

“Here, Missouri law provided petitioner with an oppor-

tunity to challenge the State Implementation Plan, but

petitioner failed to take advantage of the statutory pro-

cedure for obtaining judicial review.”

This statement is rather cryptic to us, since at the time this

suit was filed and for some time prior thereto petitioner had

been seeking a variance from the Missouri Air Commission as

to its Labadie and Sioux Plants. And in the Union Electric

case, cited supra, this Court specifically held that such a pro-

cedure was an appropriate method to obtain relief from emis-

sion regulations (427 U.S. at 266). This Court also there pointed

out (n. 15 at p. 266) that a variance is approvable by the EPA

as a revision of the State Implementation Plan.‘

Although the EPA brief does not say so, perhaps it obtusely

refers to the fact that after its May, 1972 approval of the Mis-

3 In fact, if the EPA and the Court of Appeals are correct, a state

can ban all emissions and the Federal Government must enforce with

Draconian penalties such ban as valid and constitutional federal law.

+ Our mystification is intensified by the fact (p. 3 of EPA brief)

that the Missouri Air Commission has in fact granted the variance,

and any delay rests with the EPA.

sical nes

souri Implementation Plan, Union Electric sought variances

as to its particular plants rather than a review of the State Plan

in the Missouri Courts. Contrary to the EPA we have doubt

that such a review is permissible. Thus we find no authority that

the State Commission’s promulgation of the plan constitutes

an “administrative decision” under Section 203.130, R.S.Mo.,

1978. In any event a possibility of state review really makes

no difference. The Clean Air Act (42 U.S.C. Section 7410)

contains no provision, nor does it contemplate, that the EPA

shall withhold approval of the plan, while the propriety of its

application to one source or another goes through a state ap-

pellate procedure. In view of the fact that the Administrator

must act on the plan within four months after its submission

(42 U.S.C. Sec. 7410(a)(2)) it is certainly unrealistic to think

that a state appellate process would inevitably, or even often,

be completed by that time. We also point out that since the

Clean Air Act Amendments of 1970 and the Implementation

plan approval in 1972, the facts with respect to energy have

vastly changed, and justice requires governmental agencies and

courts alike to recognize and deal with those facts.

In conclusion we note that the Attorney General’s office has

sought succor in statements we made in our brief filed in the

earlier Union Electric case. But the constitutional question

presented in that case had nothing to do with the Ex parte

Young doctrine we present here; and additionally the Court

there declined to consider the constitutional point we presented

(427 US. at p. 269, n. 19).

CONCLUSION

The EPA and its counsel refer to the “spectre” of Ex parte

Young as if it were a constitutional doctrine which must some-:

how be forgotten. But we respectfully submit that that doc-

war aa

trine, which is so clearly applicable here, cannot be abrogated,

changed or modified by any governmental agency or depart-

ment or any court of appeais. Nor can it be eliminated or

changed by refusals to grant certiorari in cases where it is pre-

sented. We therefore respectfully pray that our petition for

certiorari be granted.

Respectfully submitted,

WILLIAM H. FERRELL

314 North Broadway

St. Louis, Missouri 63102

Counsel for Petitioner

STEWART W. SMITH, JR.

and

SCHLAFLY, GRIESEDIECK, FERRELL

& TOFT

Of Counsel