Opposition — Harrison v. PPG Industries, Inc.

“Buprams Court, U.S.

‘BILED

JUL 81 1979

\

MICHAEL BODAK JR. CLERK

~ oe ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1918

ADLENE HARRISON, REGIONAL ADMINISTRATOR AND

DOUGLAS COSTLE, ADMINISTRATOR OF

ENVIRONMENTAL PROTECTION AGENCY,

Petitioners,

versus

PPG INDUSTRIES, INC., and

CONOCO, INC.,

Respondents.

OPPOSITION OF RESPONDENT CONOCO, INC. TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GENE W. LAFITTE

J. BERRY ST. JOHN, JR.

One Shell Square, 50th Floor

New Orleans, Louisiana 70139

Attorneys for Respondent

Conoco, Inc.

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096. N. O.. LA. 70153 - 504/822-1611

si tN

TABLE OF CONTENTS

Page

PEG TION PREGENTED oc. 5c. c cess ccsesceess 2

OT Peet COP THIG CASE 2. nc ccsccccvcccccse 2

REASONS FOR DENYING THE PETITION ..... 2

EE SLU Ud da aie vale CRW wa a's 8

TABLE OF AUTHORITIES

Cases:

Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402 (1971) .:.......ceee voeese 6

E. I. du Pont de Nemours & Co. v. Train, 430

Ne a aes awk ee 4

Ely v. Velde, 451 F.2d 1130 {4th Cir. gg ) re 7

Environmental Defense Fund, Inc. v. Ruckel-

shaus, 439 F.2d 584 (D.C. Cir. 1971) .......... 7

PPG Industries, Inc. v. Harrison, 587 F.2d 237

ee eee ane bees hud 2,3,4

Save the Bay, Inc. v. Administrator, 556 F.2d

Ge eg) SPOT Ee TET EE EVERETTE EET 6

Sharon Steel Corp. v. EPA, 597 F.2d 377 (3rd

i a a hk eg we tes 4

Texas v. EPA, 499 F.2d 289 (Sth Cir. 1974),

cert. denied, 427 U.S. 905 (1976) .......... ee eeee 6

United States Steel Corp. v. EPA, 595 F.2d 207

my = en FS ee a se awee weada 3,4

li

TABLE OF AUTHORITIES (Continued)

Page

Statutes:

Clean Air Act, as amended by Clean Air Act

Amendments of 1977, Pub. L. No. 95-95, 91

Stat. 685 (1977) (to be codified at 42 U.S.C.

§§7401-7642)

Section 307(b)(1), 42 U.S.C. §7607(b)(1) ...2,3,4,6

Section 307(d)(9)(A), 42 U.S.C. §7607

en oie 6

i

!

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 78-1918

ADLENE HARRISON, REGIONAL

ADMINISTRATOR and

DOUGLAS COSTLE, ADMINISTRATOR OF

ENVIRONMENTAL PROTECTION AGENCY,

Petitioners,

versus

PPG INDUSTRIES, INC., and

CONOCO, INC.,

Respondents.

OPPOSITION OF RESPONDENT CONOCO, INC.

TO PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

i Respondent, Conoco, Inc., who appeared as Inter-

| venor below, herein opposes the petition for certiorari

filed on June 29, 1979, on behalf of Petitioners Adlene

Harrison and Douglas M. Costle.

2

QUESTION PRESENTED

Whether Section 307(b)(1) of the Clean Air Act, 42

U.S.C. §7607(b)(1), confers original and exclusive juris-

diction on the courts of appeals to review final actions

by the Administrator of the U.S. Environmental Pro-

tection Agency applying new source performance

standards to particular facilities.

STATEMENT OF THE CASE

Respondent Conoco, Inc., concurs in the Supple-

mental Statement of the Case set forth in the Memo-

randum in Opposition filed by Respondent PPG In-

dustries, Inc.

REASONS FOR DENYING THE PETITION

1. ThereIs No Conflict Among the Relevant

Decisions of the Courts of Appeals.

Petitioner has asserted that there are some 90 ac-

tions now pending which depend on the meaning of the

“any other final action” clause of Section 307(b)(1) to

determine proper jurisdiction. (Petition at 13 n.8.) Peti-

tioner then states that the decision of the Fifth Circuit

in PPG Industries, Inc. v. Harrison’ creates serious prob-

lems in administering the Clean Air Act. However, an

examination of the decisions dealing with this jurisdic-

1 587 F.2d 237 (5th Cir. 1979).

3

tional issue shows that the courts of appeals have had

no difficulty in arriving at nonconflicting results.

Only the Fifth and Third Circuits have considered

whether the addition of the “any other final action”

language by the 1977 Amendments to the Clean Air

Act requires that all final agency action be subject to

initial review in the courts of appeals. In PPG Industries,

Inc. v. Harrison, the Fifth Circuit reviewed the legisla-

tive history of the 1977 Amendments in an attempt to

discern what type of action was included within that

phrase. Because the legislative history addressed only

venue and did not mention a major shift of jurisdiction

to the courts of appeals, the court sought other guides

to the construction of the phrase. The court concluded

that Congress drafted Section 307(b)(1) with the limi-

tations on the ability of the courts of appeals to develop

facts in mind.2 Thus, the court held that an EPA action

that was so informal that it gave rise to a record un-

suited to court of appeals review was not included

within the “any other final action” phrase in Section

307(b)(1).3

In United States Steel Corp. v. EPA, 595 F.2d 207 (Sth Cir.

1979), the Fifth Circuit was again faced with a chal-

lenge to its jurisdiction to review agency action under

Section 307(b)(1). Finding that it had jurisdiction, the

court distinguished its earlier decision in PPG Industries,

Inc. v. Harrison. Because the U.S. Stee! case involved a sub-

2 587 F.2d at 245.

3 587 F.2d at 245.

stantial record growing out of a rulemaking proceeding,

the factors which led to the decision in PPG Industries

were not present. In Sharon Steel Corp. v. EPA, 597 F.2d

377 (3rd Cir. 1979), the Third Circuit treated the same

jurisdictional question briefly. Like the Fifth Circuit in

U.S. Steel, the court found that PPG Industries did not app-

ly because in the case before it EPA had taken rule-

making action pursuant to 5 U.S.C. §553.

Thus, the three reported decisions that have con-

sidered the “any other final action” clause of Section

307(b)(1) do not conflict. In the absence of any conflict

among the courts of appeals, there is as yet no need for

Supreme Court review.

Finally, the issue raised by the decision in PPG Indus-

tries is potentially complex. The Fifth Circuit, for exam-

ple, has characterized EPA’s interpretation of Section

307(b)(1) as indicating “a massive shift of jurisdiction to

the courts of appeals.”4 In this situation, it is well to

recall the Supreme Court’s recognition of “the wisdom

of allowing difficult issues to mature through full con-

sideration by the courts of appeals.” E. I. du Pont de

Nemours & Co. v. Train, 430 U.S. 112, 135 n.26 (1977).

The considerations expressed by the Supreme Court in

this regard are equally applicable to the case at bar.

4 587 F.2d at 243.

ed

5

2. The Decision Below is Narrowly Drawn

and Therefore of Limited Applicability.

By its terms, the decision applies only to those

situations in which the agency action was so informal

that it produced an administrative record clearly in-

sufficient to provide an adequate basis for judicial

review in the courts of appeals. As the court of appeals

observed, the administrative record in the instant case

is comprised of nothing more than a collection of cor-—

respondence between the agency and respondent PPG

Industries, Inc.’ A perusal of this correspondence

reveals a near total lack of articulable bases for the

agency’s determination that the waste-heat boilers in

question are new sources subject to new source per-

formance standards under the Clean Air Act. The

Administrator’s “reasons” for subjecting these facili-

ties to these regulations are not reasons at all, but mere

conclusions. It is only in this and similar situations —

where the administrative record is so patently in-

complete as to afford no meaningful basis for judicial

appraisal of the agency’s decision-making process —

that initial review of agency action is inappropriate at

the appellate level.

3. The Decision of the Court of Appeals is

Correct.

a. Where the administrative record is clearly in-

sufficient to permit meaningful review of agency ac-

5 587 F.2d at 244.

6

tion, the court of appeals may refuse to exercise its

jurisdiction under Section 307(b)(1). In such a case,

review is more properly had in the district court so as to

permit fact and record development prior to court con-

frontation. In reviewing agency action under the Clean

Air Act, courts are instructed to enquire whether that

action is “arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” Clean Air

Act §307(d)(9)(A), 42 U.S.C. §7607(d)(9)(A). That

determination cannot be made where the ad-

ministrative record consists of only the sparsest of doc-

umentation. See Texas v. EPA, 499 F.2d 289, 321-22 (5th

Cir. 1974) (Clark, J., concurring), cert. denied, 427 U.S.

905 (1976). Although remand to the agency fora state-

ment of reasons for its decision is one alternative, that

solution “would risk after the fact rationalization,

which the evidence gathering power of atrial court can

more easily penetrate.” Save the Bay, Inc. v. Administrator,

556 F.2d 1282, 1292 (Sth Cir. 1977). See Citizens to Pre-

serve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420-21

(1971). In such a case, the district court becomes the

only available forum for meaningful review of agency

action.

b. Initial review in the district courts of agency ac-

tion unsupported by a complete administrative record

will not burden the administration of the Clean Air

Act. District court review of agency action will only be

required in a limited number of cases. Out of the

approximately 90 actions now pending against EPA

which depend on the meaning of “any other final ac-

tion” to determine proper jurisdiction, only two, other

7

than the present case, have involved simultaneous fil-

ings in both the district court and the court of appeals.

(Petition at 13 n.8.) Where simultaneous filing does oc-

cur, it will be a relatively simple matter for the court of

appeals to determine on the face of the administrative

record that the agency action in question is or is not

sufficiently supported so as to warrant initial appellate

review. Thus, contrary to Petitioner’s assertion that

jurisdiction to review EPA action will be left “entirely

tochance,” that decision will be committed to the sound

discretion of the courts of appeals.

Finally, it is the agency’s responsibility to ensure that

its decisions are supported by an adequate adminis-

trative record. The law requires that administrative

agencies “articulate the factors on which they base

their decisions,” Environmental Defense Fund, Inc. v. Ruckel-

shaus, 439 F.2d 584, 597 (D.C. Cir. 1971), and “explicate

fully [their] course of inquiry, ... analysis and ...

reasoning,” Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir.

1971). Where the agency has failed to fulfill its proper

function in this respect, it cannot be heard to complain

of the “burdensome discovery” which may take place in

the district courts. The practical effect of the decision

below, therefore, is tocompel the Administrator to ful-

ly and clearly set forth the reasons for his decisions in

every instance. This, in turn, will mean that fewer

cases need be subject to initial review in the district

courts.

8

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

GENE W. LAFITTE

J. BERRY ST. JOHN, JR.

One Shell Square,

50th Floor

New Orleans, LA 70139

Attorneys for Respondent

Conoco, Inc.