# Reply Brief — Union Electric Co. v. Environmental Protection Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0314%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1979 - **Citation:** 444 U.S. 839 ## Text 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 - ” else. + o-® 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. es poe 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0314%3A4. Public record. Not legal advice.