Reply Brief — Harrison v. PPG Industries, Inc.

FOR ARGUMENT

Supreme (out US.

Pti. £2

No. 78-1918 JAR 12 1980

ODAK, JR., CLERK

In the Supreme Court of the Hnited States

OcTOBER TERM, 1979

ADLENE HARRISON, REGIONAL ADMINISTRATOR,

AND DOUGLAS COSTLE, ADMINISTRATOR Ol

ENVIRONMENTAL PROTECTION AGENCY, PETITIONERS

Vv.

PPG INDUSTRIES, INC., AND Conoco, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

WapdE H. McCrer. JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

INDEX

CITATIONS

Page

Cases:

I I OP, BN cen cancislasncesencdseaees. 4

Chrysler Corp. v. Environmental Protection

TO cae c snsasuctasesscicusees 9, 10

Crown Simpson Pulp Co. v. Costle,

a scans lusnsabeniadasene 10

Fourco Glass Co. v. Transmirra Corp,

Nae Rec REPENS 6

Preiser v. Rodriguez, 411 U.S. 475 .....c. 6

United States v. Florida East Coast Ry,

BO Bi. BOO vvkncesnsssess Sc cliatiitidatslihiscccaintaives hina sie 4

Utah Power & Light v. Environmental

Protection Agency, 553 F. 2d 215 ................ 10

Yakus v. United States, 321 U.S. 414.0... 9

Statutes rules and regulation:

Administrative Procedure Act, 5 U.S.C.

S51 et seq. :

ETERS EA EES ON a 4

Cee a ac ccssanuins 4

Ne i siawaeassvlans 3

I i ce 9

Clean Air Act Amendment of 1977 42 U.S.C.

(Supp. I) 7401 e¢ seq. :

Section I11(j), 42 U.S.C. (Supp. 1)

RN a ei es Se on 5

Page

Statutes rules and regulation—(Continued):

Section I11(j)(1)(A), 42 U.S.C. (Supp. 1)

ERR IY A Fe ey Sgn ae OPN EE 5

Section 112(c), 42 U.S.C. (Supp. 1)

WI oot rn cae ss aaciaevund ted xsnkecuieneRoc es 4.5

Section 113, 42 U.S.C. (Supp. 1) 7413. ....... |

Section 119(a){1), 42 U.S.C. (Supp. 1)

WD vocdin seca Bin kesandde ddantaasecietn as snakewene 5

Section 202(b)(1), 42 U.S.C. (Supp. 1)

PN, icici Suitusn a ceeds Pa sa ocak a tee Ss pao 7

Section 202(b)(1)(A), 42 U.S.C. (Supp. 1)

8 RRA ER RT EER Mee Se). SRR srr 7

Section 202(b)(1)(B), 42 U.S.C. (Supp. 1)

CBRNE TED oravcnscasvnsucace Dem ear 7

Section 206(b)(2), 42 U.S.C. (Supp. 1)

fic RGSS ie BREEN Pe po eRe 6

Section 206(b)(2)(B), 42 U.S.C. (Supp. 1)

PI ii cd OE cancun vos euskars cesta 6

Section 206(b)(2)(b)(i), 42 U.S.C. (Supp. 1)

Pa REE A Se RN 6

Section 307(b), 42 U.S.C. (Supp. 1)

WI aie acecactricckasCaudbcscesaneasnsdissasonscckecs 7

Section 307(b)(1), 42 U.S.C. (Supp. 1)

TEIN D. Sieiisntncccindbeieds ae Oe ea ee

Section 307(d), 42 U.S.C. (Supp. 1)

pT SRI DEEAESS ere op atte ene» EB Se ee ee 5

Section 307(e), 42 U.S.C. (Supp. 1)

I cea a a 6

Page

Statutes rules and regulation —(Continued):

Federal Water Pollution Control Act, 33 U.S.C.

RENINOD Sickie Tics calicds vaccktitabaesinvintinapi nae Spmsebonncens 10

Noise Control Act, 42 U.S.C.

NN re aren bs sabcunsavin enaneuonrunionien 9. 10

Safe Drinking Water Act, Pub. L. No. 93-328.

OE ee Te VE. TPE, sdaesicichciccons 2

See i BE Ged assceeest pena niesivtedreounonin 2

Fe Ma ER scscicharenssiotahnessdiccantecis banganioe peaeomnaet 4

a: PIII sindunkedspcspcaninsendcaxteledcapncadanantis! 3

+ Sik oe | Eee enere tone

Fed. R. App. P. :

IE Oe “ciuicenccakbeakecsnciodndeGuacquncanene outteinenistaaaeaiee 4

BIE “NS isc wetcdeipieic sig vaten ineelacnlalalte ead ues uaa 4

Miscellaneous:

Currie and Goodman, Judicial Review of

Agency Action: Quest for the Optimum

Forum, 75 Colum. L. Rev. 1 (1975). .............. 2

In the Supreme Court of the Hnited States

OCTOBER TERM, 1979

No. 78-1918

ADLENE HARRISON, REGIONAL ADMINISTRATOR,

AND DOUGLAS COSTLE, ADMINISTRATOR OF

ENVIRONMENTAL PROTECTION AGENCY, PETITIONERS

Vv.

PPG INDUSTRIES, INC., AND Conoco, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

-

REPLY BRIEF FOR THE PETITIONER

1. Under our view of Section 307(b)(1), all preenforce-

ment review is by the courts of appeals.' If the record is

inadequate for such, review, the court of appeals may

remand to the agericy for a more complete record.

Although PPG repeatedly characterizes our interpreta-

tion as “extreme” and as “contradictory and conflicting”

(Br. 2, 17), our construction is far more practical than

the complicated scheme offered by PPG.

‘Once the agency commences administrative enforcement

proceedings under Section 113, preenforcement review is no longer

available (see our opening brief at 26 n.19). 42 U.S.C. (Supp. 1)

7413(a).

(1)

tN

Under PPG's interpretation, jurisdiction depends

entirely on the form of the record of the challenged

administrative action. If the agency action was based on

a “contemporaneously compiled administrative record”

(Br. 24), then review lies only in the courts of appeals. If

the record is of lesser quality, then only the district

courts have jurisdiction (under 28 U.S.C. 1331).2 Of

necessity, each “final action” case would require a

preliminary evaluation of the substance of the record to

determine which court had original jurisdiction. What is

more, the two courts might not agree. No decision to

take jurisdiction by a district court would ever be certain

until appellate review confirmed it. An erroneous

decision by a district court to assume jurisdiction would

invite enormous and wasteful discovery and other

proceedings. An erroneous decision by a court of appeals

to assume jurisdiction would waste its time. the litigants’

time, perhaps this Court’s time, and inevitably delay

reaching the merits. In short, a constant shuttle between

courts is an unavoidable consequence of PPG's inter-

. “Congress knows exactly how to make a_ broad grant. of

jurisdiction to courts of appeals. and yet preserve limited district

court jurisdiction when that is intended. In the judicial review

provision of the Safe Drinking Water Act. Pub. L. No, 93-328. 88

Stat. 1689, 42 U.S.C. 300j-7. enacted in 1974, prior to. the

amendments to Section 307(b)(1), Congress placed jurisdiction to

review certain enumerated actions in the court of appeals for the

District of Columbia. The regional courts of appeals were given

jurisdiction to review the promulgation of “any other regulations,”

issuance of “any order.” or the Administrator's actions in “making

any determination” under the Act. 2s

C ongress, however, specifically placed review in the district courts

ot actions granting or refusing exemptions or waivers under the Act

Otherwise, review of those actions would have been in the regional

courts of appeals under the broad terms of their jurisdiction.

pretation.’ By construing Section 307(b)(I1) to place

judicial review of all final actions of the Administrator in

the courts of appeals, such wasteful exercises are wholly

eliminated.*

2. The premise of PPG's argument is that the

specifically enumerated items in Section 307(b)(1) are

actions that the Act (or the Administrative Procedure

Act) requires to be made on what PPG. variously

describes as a “definite and contemporaneously compiled

record,” a “complete and contemporaneously compiled

record” a “comprehensive administrative record,” and an

“explicit administrative record” (Br. 26, 27, 37, 38).

Therefore PPG concludes that “any other final action”

must likewise be based on such a record. There are two

main flaws in this argument.

(a) Although what PPG means by its label of a

“contemporaneous” and “definite” record is unclear, the

fact is that any agency action reviewable under the Act,

‘The jurisdictional uncertainty avoided by our view is quite

separate from the promptness it fosters in obtaining final decisions

on judicial review. In this latter connection, PPG suggests, by citing

a law review article (Br. 58), that initiating judicial review in district

courts would not delay ultimate resolution of the merits and would

not strain judicial and litigants’ resources since appeals would be

infrequent. The quoted portion of the article, however, refers only to

the possibility of direct review in social security cases. Currie and

Goodman, Judicial Review of Agency Action: Quest for the

Optimum Forum, 75 Colum. L.Rev. 1, 25 (1975). We believe that

the discovery in district courts contemplated by PPG (Br. 54) in the

name of “verifying” the agency record would severely tax the

resources of litigants and the district courts and that appeals would

still be taken—on such voluminous records—to the courts of

appeals.

4Our construction also avoids the incongruous result of construing

“final action” in completely different ways under the Clear Air Act

and the Administrative Procedure Act, 5 U.S.C. 704. PPG does not

address this inconsistency.

however informal, must be based on an administrative

record. Where judicial review of agency action is laid in

the courts of appeals, 28 U.S.C. 2112(a) provides that

the agency must file the administrative record with the

court of appeals in “all proceedings instituted in the

courts of appeals to * * * review or enforce orders of

administrative agencies * * * and officers * * *.” 28

U.S.C. 2112(b) provides that the record must include,

among other things, the agency’s order, the findings or

report on which that order is based, and any pleadings.

proceedings or evidence before the agency. If the court

subsequently determines that non-included portions of

the record are necessary for its review, the court may

direct that the record be supplemented. 28 U.S.C.

2112(b). Rules 15 and 16 of the Federal Rules of

Appellate Procedure, also authorized by 28 U.S.C. 2112.

detail the manner of petitioning the court on direct

review and the composition of the record for review of

agency action. Thus, even the most informal agency

action under the Act will be presented to the courts of

appeals with a sufficient record. That procedure was

followed here and is ordinarily followed in all cases of

judicial review of “informal” agency action.®

‘Contrary to PPG's argument (Br. 51 n.47). records of rulemaking

under 5 U.S.C. 553 are not necessarily “formal.” Rulemaking

proceedings under 5 U.S.C. 553 must be based on a formal record

only if required by other statutes to be made “on the record” after

an agency hearing. Otherwise, Section 553(c) requires only that the

affected party be given notice and an opportunity to submit written

data or argument. United States v. Florida East Coast Ry, 410 U.S.

224. 238-240 (1973). The administrative record for review is

compiled as directed by 28 U.S.C. 2112.

“Moreover, the quality of the administrative record should not

determine whether review is more appropriate in the district courts

or the courts of appeals. Ordinarily, even in the district courts when

the administrative record is too skeletal for review. the district court

Vee ee -

(b) Contrary to PPG's premise, moreover, not all the

specifically enumerated items in Section 307(b)(1) are

required to be based on a “formal” record. Significantly,

PPG. admits (Br. 50) that the Administrator’s orders

under Section 112(c) are specifically made reviewable

under Section 307(b)(1) in the regional courts of appeals,

even though the Act does not require such action to be

based on notice and a hearing or a formal record. It is

obviously speculation by PPG (Br. 54) to dismiss this

inconsistency in its argument with the curt suggestion

that Congress must have wanted “special review.”

regardless of the form of the record, merely because the

Section 112(c) agency action involves “hazardous

pollutants.” In addition, PPG incorrectly states (Br. 53)

that any order under Section I11(j) must be preceded by

notice and an opportunity for a hearing.’ Only an order

granting a waiver under Section I11(j) must be preceded

by notice and a public hearing. 42 U.S.C. (Supp. 1)

7411(j). An order denying a waiver may be made by the

Administrator without formal proceedings. Such denials

fall within the phrase “any order under Section I11(j)”

made reviewable in the regional courts of appeals by

Section 307(b)(1). Similarly, an order issued by the

Administrator under Section 119(a), 42 U.S.C. (Supp. 1)

may not permit discovery and trial de novo but must remand to the

agency for a more complete record. The only exceptions are where

the agency’s fact-finding procedures are inadequate @ and where the

district court proceedingGare enforcement proceedings. Camp v.

Pitts, 411 U.S. 138, 142 (1973).

Section I11(j)(1)(A) provides that the owner or operator of a new

stationary source may request a waiver from = the applicable

standards for such sources in order to use innovative technology or

continuous emission reduction systems. 42 U.S.C. (Supp. |)

741 1G 1A)

7419(a), denying an application for a primary nonferrous

smelter order, is not subject to notice-and-hearing

requirements, but is explicitly reviewable by the terms of

Section 307(b)(1) in the courts of appeals.*

3. PPG (Br. 40-43) creates an illusory conflict between

our interpretation of Section 307(b)(1) and two other

provisions of the Act. First, Section 206(b)(2)(B)

provides that a manufacturer may challenge in the courts

of appeals (i) the Administrator’s prototype testing for

new vehicles or engines and (ii) suspension or revocation

of a certificate of conformity for new vehicles or engines.

42 U.S.C. (Supp. 1) 7525(b)(2)(B). PPG argues (Br. 42)

that our interpretation of “any other final action” repeals

the review provision of Section 206(b)(2)(B). Not so. To

begin with, PPG neglects to mention that whatever

problem Section 206(b)(2)(B) poses to our construction Is

equally posed to PPG’s theory. Section 206(b)(2)(B)(i)

requires agency proceedings to be “on the record,” a

statutory feature that would trigger review under the

“any other final action” clause even under PPG's view of

Section 307(b)(1).2 More importantly, Section 206(b)(2)

‘Individual owners or operators of a primary nonferrous smelter

are allowed under Section 119(a)(1), 42 U.S.C. (Supp. 1) 7419(a)(1).

to have the compliance date for emission limitations for sulfur

oxides postponed under specified conditions. Section 307(d),

specifying rulemaking procedures for certain actions of the

Administrator, recognized the existence of Section 119 orders

denying action and exempts such orders from any rulemaking

procedures. 42 U.S.C. (Supp. 1) 7607(d)(1)(G).

%Section 307(e) provides that nothing in the Act “shall be

construed to authorize judicial review of regulations or orders of the

Administrator under this Act. except as provided in this section.”

This provision could hardly have been intended to nullify the

judicial-review provision expressly authorized by Section

206(b)(2)(B). PPG argues (Br. 43 n.40) that Section 307(e) was only

intended to prohibit review in citizen suits of issues that may be

reviewed on preenforcement review. See PPG App. Sa. This appears

to be correct, although there is little legislative history on the issue.

is fully consistent with our construction. Since Section

206(b)(2)(B) establishes a specific review mechanism for

the agency action it describes, that provision is obviously

controlling for that type of action over the more general

“any other final action” language of Section’ 307(b)(1).

Fourco Glass Co. v.. Transmirra Corp., 353 U.S. 222,

228-229 (1957); cf. Preiser v. Rodriguez. 411 U.S. 475

489-490 (1973).'

Second, PPG argues that our construction nullifies the

parenthetical exception from review in Section 307(b).

Not so again. The parenthetical material exempts from

review any “standard required to be prescribed under

Section 202(b)(1).” Our interpretation does not resubject

such standards to review. Once again, the specific

exclusive language of the parenthetical concerning a

specific type of agency action controls over the general

inclusive language of “any other final action.”!!

"Both Section 206(b)(2)(B) and Section 307(b\(1) provide for

review in the courts of appeals under similar procedures. The only

difference is in the venue allocations. Section 206(b)(2)(B) lays venue

in the circuit wherein the manufacturer has its principal place of

business or resides.

''The “standards” referred to in the parenthetical are not subject

to any preenforcement review. This is understandable inasmuch as

those standards are statutorily set by Section 202(b)(1) and are not

set by EPA. Section 202(b)(1)(A) requires that certain regulations

“shall contain standards which provide that [certain] emissions * * *

may not exceed I.5 grams per vehicle mile of hydrocarbons and 15.0

grams per gr vehicle mile of carbon monoxide.” Section

202(b)(1)(B) requires that the regulations for certain nitrogen oxide

emissions require “standards which provide that [certain] emissions

** * may not exceed 2.0 grams per vehicle mile.” There is no point

in authorizing judicial review of standards not set by EPA but by

Congress.

8

4. PPG tries to make much (Br. 32-33) of the fact that

the House Committee did not expressly endorse or reject

Recommendation E of the Administrative Conference.

That recommendation dealt with subject-matter jurisdic-

tion under the Clean Air Act only by suggesting that the

parenthetical omission for new-car standards be dropped

and that such standards be added to the list of

specifically enumerated items. Since Congress did not

eliminate this exception, it is understandable that

Recommendation E dealing with “Actions Subject to

Court-of-Appeals Review” was not expressly approved.

Had the Administrative Conference recommended that

an “any other final action” clause be inserted, the House

Report no doubt would have addressed it. No such

recommendation was made, and it is unilluminating to

try to divine some meaning from the failure of the House

Report to address a recommendation that really does not

fit the action later taken by Congress.'? Perhaps the most

compelling response to PPG’s argument that only venue

changes were intended is that even PPG admits that the

“other final action” clauses expanded the subject-matter

jurisdiction of the courts of appeals. How far it was

expanded is the basic question, and the Administrative

Conference recommendations and the references to them

by the House Committee do not really supply a direct

answer.

"Similarly, had Congress really intended to adopt only the

“venue” recommendation of the Administrative Conference, it would

simply have provided that action “approving or promulgating state

implementation plans is reviewable in the circuit containing the state

whose plan is challenged,” the only recommended change in venue

suggested by the Conference (see PPG App. 8a). That Congress did

not limit itself to this narrow change shows that it went well beyond

the narrow venue recommendation of the Conference.

In this connection, PPG states (Br. 36-37) that the

Administrative Conference “pointed to one common

characteristic, shared by each section enumerated in

Section 307(b)(1) (pre-1977 Amendments)” and that

“{t]hat common element was that each of the specified

actions of the Administrator had to be taken in

compliance with the Administrative Procedure Act and

then would have been taken upon a complete and

contemporaneously compiled administrative record.”

Evidently, PPG’s point is that Congress meant to carry

this scheme forward in the 1977 Amendments. No such

statement, however, appears in the report of the

Administrative Conference (see PPG Appendix).!'

Curifygsly, moreover, in the next breath (Br. 37 n.36)

PPG admits the statement it attributes to the Conference

is erroneous.

5. PPG's due process challenge (Br. 59-60) is without

merit. First, PPG has had a “reasonable opportunity to

be heard and present evidence” under EPA’s determina-

tion procedure (40 C.F.R. 60.5). Yakus v. United States,

321 U.S. 414, 433 (1944). Second, all persons affected by

EPA final actions under the Act have ample time to file

review petitions. Indeed, the period for filing them does

not even begin to run until EPA publishes notice in the

Federal Register of its action. Third, even where the Act

does not require formal proceedings, the agency may not

'S3PPG contends that the technical amendments would not have

been necessary under our construction. The same, however, ts

equally true of PPG's construction inasmuch as PPG contends all

(but one) of the specifically enumerated items in the technical

amendments were already covered by the “final action” clauses. As

we pointed out at pages 22-23 (note 17) of our opening brief,

however, it is not fatal to our (or PPG's) argument that Congress

indulged in some redundancy to make sure certain actions were

reviewed in one circuit rather than another.

10

arbitrarily and unreasonably refuse to consider any

information a party may wish to offer in support of its

position, and any such refusal may render the agency's

final decision arbitrary and capricious. 5 U.S.C. 706(2).

It is therefore highly unlikely that any final agency

action may ever be taken and affirmed on preenforce-

ment review under the Act in violation of due process.

Finally, if any such denial of fair procedure ever does

occur, there will be time enough to determine the

constitutionality of the preclusion clause at that time. In

such a case, the remedy would be invalidation of the

preclusion clause as applied. not a modification of the

scope of Section 307(b)(1).'"

The special statutory problem involved in Chrvrsler Corp. v.

Environmental Protection Agency. 600 F. 2d 904, 913 (D.C. Cir.

1979). justified that court’s reference to the potential due process

question. Although the Noise Control Act. 42 U.S.C. 4915(a). has a

preclusive review provision like that in the Clean Air Act. only

specific enumerated sections in the Noise Act are subject to

preenforcement review. 42 U.S.C. (Supp 1) 4915(a). The problem in

Chrvsler was that the Administrator decided that certain regulations

were in fact within the ambit of the review provisions of the Noise

Act only after the period for review had expired. To avoid the

constitutional issue, the ambiguous list of enumerated actions was

construed not to include the regulations. This problem cannot arise

under the Clean Air Act because of the addition of the “any other

final action” clause and the protection of Federal Register

publication.

None of the decisions (PPG Br. 44-45) construing the pre-

enforcement-review provisions of other environmental statutes are

relevant because none of them contain the critical “any other final

action™ clause. The pre-amended version of the Clean Air Act. the

Federal Water Pollution Control Act. 33 U.S.C. 1369(b,(1). and the

Noise Act, 42 U.S.C. 4915(a). authorize original preenforcement

review in the courts of appeals only for specifically enumerated

actions. See Utah Power & Light v. Environmental Protection

Agency. 553 F. 2d 215, 218-219 (D.C. Cir. 1977) (pre-amended

For these reasons, and the reasons stated in our

opening brief, the judgment of the court of appeals

should be vacated and the case remanded for considera-

tion of the merits.

Respectfully submitted.

Waprt H. McCree, JR.

Solicitor General

JANUARY 1980

Clean Air Act); Crown Simpson Pulp Co. v. Costle, 599 F. 2d 897,

900 (9th Cir. 1979) (Federai Water Pollution Control Act

Amendments of 1972); Chrysler Corp. v. Environmental Protection

Agency, 600 F. 2d 904, 907 (D.C. Cir. 1979)) (Noise Control Act).

In addition. no court of appeals other than the Fifth Circuit has

declined jurisdiction under Section 307(b)(1) of the Clean Air Act

on the theory advanced below.

DOJ-1980-01