Opposition — United States Steel Corporation v. United States Environmental Protection Agency

No. 79-486

In the Supreme Court of the United States

OCTOBER TERM, 1979

UNITED STATES STEEL CORPORATION AND

YOUNGSTOWN SHEET AND TUBE COMPANY.

PETITIONERS

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT

IN OPPOSITION

WabE H. McCreE, JR.

Solicitor General

JAMES W. MoOoRMAN

Assistant Attorney General

JACQUES B. GELIN

RONALD C. HAUSMANN

Attorneys

Department of Justice

Washington, D.C. 20530

INDEX

Pave

IN reba ee Oak ee es |

LG ee ee ee on |

I ee |

ses octet ah TS ET NERD 2

ong, aga he Re RC RE DU NER ENE AEN USI came SOE TT 6

I ae oe ba 10

CIIATIONS

Cases:

Sharon Steel Corp. v. EPA, 597 k. 2d 377 ........ 6

Train v. Natural Resources Defense Council.

agli oi. SRS Ree APRESS PULSE 2

Union Electric Co. v. EPA, 427 U.S. 246 .......... 2

United States Steel Corp. v. EPA,

cule’ GENOMIN CT SORT NOCD RO Oe ee 6

Statutes:

Administrative Procedure Act. 5 U.S.C.

a i be 3

Clean Air Act (formerly codified at 42

U.S.C. 1857 et seqg., now codified at 42

U.S.C. (Supp. 1) 7401 er seq.):

Section 107(d), 42 U.S.C. (Supp. 1)

ces, FEE AL AO 2-3

Section 107(d)(1), 42 U.S.C. (Supp. 1)

og, SRPRST ESA AIMEE lies terrae oni 3

Section 107(d)(2), 42 U.S.C. (Supp. 1)

SEN AME THIIES SDL ANG ates cane haat Cea 3

Page

Statutes—(Continued):

Section 107(d)(1)-4(2). 42 U.S.C. (Supp. 1)

ORGY)... 6. 7

Section 109, 42 U.S.C. (Supp. 1) 7409 ......... 2

Section 129(c), 42 U.S.C. (Supp. 1)

TIBOR cvs Ga 6-7

Section 171(2), 42 U.S.C. (Supp. 1)

FIO) o.com 4.7

Sections 171-178, 42 U.S.C. (Supp. 1)

FROUTTID wvccsisusscdatsceeee 3

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

FORMA) nonceeccnne 4

Section 307(d)(9), 42 U.S.C. (Supp. I)

POOREID orca 5, 9, 10

Clean Air Act Amendments of 1970.

Pub. L. No. 91-604. 84 Stat. 1676.0... 2

Clean Air Act Amendments of 1977.

Pub. L. No. 95-95, 91 Stat. 685 ooocccccccccccc ee. 2

Miscellaneous:

43 Fed. Reg. 8962 (1978) ooo... ccccccccccsccecceseeeees 3

43 Fed. Reg. 8962-9057 (1978) oooccocccccecccecccceeee. y

43 Fed. Reg. 45993, 46007-46008

Lb 1 | RN ave 4

44 Fed. Reg. 2617 and 24845 (1979) ........ 7

44 Fed. Reg. 15743 and 53081 QOUOE : tncckscicesvecasd 7

eee

Miscellaneous-—(Continued):

44 Fed. Reg. 19212 and 53081 (1979) woo...

44 Fed. Reg. 19213 and 41782 (1979) woo...

H.R. Rep. No. 95-294, 95th Cong., Ist Sess.

NE ea tn sedan oo centers oa co dnssasiwsniisinvainn's

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-486

UNITED STATES STEEL CORPORATION AND

YOUNGSTOWN SHEET AND TUBE COMPANY.

PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL PROTEC ION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A20)

Is not yet reported.

JURISDICTION

The judgment of the court of appeals was entered on

August I, 1979. The petition for a writ of certiorari was

filed on September 21, 1979. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

!. Whether the court of appeals properly affirmed the

determination of the Administrator of the Environmental

Protection Agency that good cause existed to promulgate

air quality nonattainment designations without prior

notice and opportunity for comment.

(1)

ht

5

standards for judicial review under the Clean Air Act in

linding that the alleged procedural error of the Ad-

ministrator of the Environmental Protection Agency was

not sufficient to require reversal of the agency's air quality

nonattainment designations.

STATEMENT

In the Clean Air Act Amendments of 1970 (Pub. L. No.

91-604, 84 Stat. 1676), Congress directed that the

national ambient air quality standards established under

Section 109, 42 U.S.C. 7409,! be attained throughout the

country by mid-1975. See 7rain v. Natural Resources De-

Sense Council, 421 U.S. 60 (1975). and Union Electric Co.

V. EPA, 427 U.S. 246 (1976). However. in considering the

1977 amendments to the Act. Congress became aware that

those standards still had not been achieved in many areas

of the country. This failure was attributed to inadey uate

restrictions for certain sources of pollution, insufficient

enforcement of those restrictions. and noncompliance by

the pollution sources. In particular, Congress took note of

the steel industry's especially poor compliance record.

H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 207, 210-

211 (1977),

As a result of this widespread failure to meet. the

original statutory deadline, Congress, in the 1977 amend-

ments, adopted a new regulatory approach. The

first step was to identify all areas where the air quality

was below the applicable standards and to designate those

areas as “nonattainment areas.” Section 107(d), 42 U.S.C.

'The Clean Air Act (formerly 42 U.S.C. 1857 ef seg.) is now

codified as 42 U.S.C. (Supp. 1) 7401 es seg. See les Air Act

Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685. In this Brief in

Opposition, citations will refer to the current codification of the

Clean Air Act, as amended.

2. Whether the court of appeals properly applied the

we

7407(d). Each state was required under Section 107(d)(1)

to assess its air quality and to submit proposed area

designations to the Environmental Protection Agency

(EPA) by December 5, 1977. Pursuant to Section

107(d)(2), the Administrator of EPA was to review each

state’s proposed designations and promulgate a final list,

with any modifications he deemed necessary, by February

3, 1978. For the designated nonattainment areas, the 1977

amendments require that pollution restrictions be imposed

to ensure attainment of the standards as expeditiously as

possible. Sections 171-178, 42 U.S.C. 7501-7508.

On March 3, 1978, the Administrator published the list

of area designations for the entire country. 43 Fed. Reg.

$962 (Pet. App. A21I-A33). Overall, more than 1,300

counties were designated as nonattainment areas for one

or more pollutants (7d. at A30). In particular, the

Administrator approved the State of Indiana’s designa-

tion of portions of Lake County (Gary and East Chicago,

Indiana) as a sulfur dioxide (SO2) nonattainment area (/d.

at A32).

The nonattainment designations were made immediate-

ly effective without an opportunity for prior notice and

comment under the Administrative Procedure Act (APA),

5 U.S.C. 553(b) and (d). The Administrator determined

that the tight statutory schedule of the amendments made

it impracticable and contrary to the public interest to

postpone the effective date of the designations (Pet. App.

A23). Accordingly, the Administrator concluded that

good cause existed under the APA to promulgate the

designations to be effective immediately (/bid.). In

addition, the Administrator solicited public comment on

the designations for 60 days and committed the agency to

revise the designations as appropriate in light of those

comments (ibid.).

Petitioners sought judicial review of the designations in

the court of appeals under Section 307(b\(1), 42 U.S.C.

7607(b)(1). Thereafter, the court granted EPA’s motion to

stay proceedings pending the agency's consideration of

public comments. On October 5, 1978, the Administrator

issued a revised list of designated nonattainment areas. 43

Fed. Reg. 45993, 46007-46008 (Pet. App. A34-A42).

While modifying the designations with respect to some

areas (including several in Indiana), the Administrator

alfirmed the original designation of Lake County as a

sulfur dioxide nonattainment area. He concluded that

since violations of the primary air quality standard had

been measured in the industrialized section of the County,

a nonattainment designation was required. See Section

171(2), 42 U.S.C. 7501(2).

The court of appeals affirmed EPA’s nonattainment

designation for Lake County, finding that petitioners’

procedural and substantive challenges were without merit

(Pet. App. Al-A20). The court held that the “legislative

scheme” of the 1977 amendments (id. at A7), and

particularly the “series of tight statutory deadlines” (ibid),

the “time-consuming process” of developing revised state

plans for designated nonattainment areas (id. at A7-A8),

and the “adverse impact on health that any further delays

would entail” (id. at Al0), gave the Administrator good

cause under the APA to dispense with prior notice and

comment and to make the designations immediately

effective. The court also noted that the problem of delay

had been compounded by the failure of some states to

meet their deadlines for submitting proposed designations

to EPA (id. at A9). Finally, throughout its opinion, the

court stressed the clear congressional intent in the 1977

amendments that the air quality standards be attained “as

expeditiously as practicable” (e.g., id. at A7-A8. Al3).-

In addition, the court observed in dicta (Pet. App. Al2-

A15) that, even if good cause did not exist, invalidation of

the Secretary's action was not warranted under Section

307(d)(9) of the Clean Air Act, 42 U.S.C. 7607(d)(9). The

court explained that Section 307(d)(9) was designed to

limit judicial review of EPA rulemaking in order to avoid

“endless litigation over technical and procedural

irregularities” (id. at Al3). The court found that Section

307(d)(9) extended to the designation of nonattainment

areas either as an action by the Administrator

promulgating an implementation plan’ or significant

deterioration regulations (id. at Al4 n.12) or as one of the

general EPA rulemaking actions intended by Congress to

be covered by the judicial review provisions of the 1977

amendments (/d. at Al4). Applying Section 307(d)(9) to

the procedural errors alleged by petitioners, the court

concluded that “none of the prerequisites for reversal have

been satisfied” (ibid.).3

*The court specifically declined to follow decisions of the Third and

Fifth Circuits holding that the Administrator did not have good cause

under the APA (Pet. App. A8-A9 n.5, A9 n.7, AI0-All n.10. All-

Al2 n.I1, AIS n.14). Moreover, the Seventh Circuit panel circulated

its Opinion among all judges of the court in regular service, and a

majority did not favor rehearing en banc on this difference among the

circuits (id. at Al3 n.11).

‘The court also dismissed petitioners’ substantive challenge to the

Lake County nonattainment designation. This issue is not presented

as a reason for granting the petition.

ARGUMENT

|. Petitioners correctly note (Pet. 8-17) that the

Seventh Circuit decision in this case, in sustaining the

Administrator’s deterreination of good cause under the

APA, is in conflict with the decisions of the Third Circuit

in Sharon Steel Corp. v. EPA, 597 . 2d 377 (1979) (Pet.

App. A75-A84), and of the Fifth Circuit in United States

Steel Corp. v. EPA, 595 Fk. 2d 207 (1979) (Pet. App. A&85-

A101).4. However, in the circumstances presented here,

such a conflict does not warrant review by this Court.

The statutory scheme of the 1977 amendments to the

Clean Air Act confronted EPA with a unique situation.

The express purpose of the amendments was to remedy

the past failure to meet the national ambient air quality

standards and to ensure that those standards would be

achieved “as expeditiously as possible.” The amendments

established a regulatory process, governed by a series of

very tight statutory deadlines, in which each subsequent

step was triggered by completion of the prior step. See

Section 107(d)(1)-(2), 42 U.S.C. 7407(d)(1)-(2), and Pub.

L. No. 95-95, Section 129(c), 91 Stat. 750, 42 U.S.C.

(Supp. 1) 7502 note. The first step in the process—

identification and designation of nonattainment areas —

needed to be completed quickly so that the states would

have the maximum opportunity to accomplish the more

complicated and lengthy second step—the development

and adoption of revised implementation plans, which

under the statute were required to be submitted by

January |, 1979. Section 129(c) of Pub. L. No. 95-95, 91

‘This question is also pending in cases before the District of

Columbia and Sixth Circuits. See State of New Jersey v. EPA, No.

78-1392 (D.C. Cir.), and Columbus & Southern Ohio Electric

Company vy. Costle, No. 78-3197 (6th Cir.), and related cases.

Stat. 750, 42 U.S.C. 7502 note. The Administrator

assessed the need to adhere to the statutory deadlines and

the importance of avoiding any further postponements in

attaining the air quality standards, and on that basis he

determined that there was good cause to make the

nonattainment designations immediately effective without

the delay that would be entailed by advance notice and

comment (Pet. App. A23). However, in order to obtain

the views of the public, the Administrator requested the

submission of comments for 60 days following promulga-

tion of the designations (/bid.). This procedure ensured

that necessary changes in the original designations could

be made before the states completed the plan revisions. It

also assured that changes could be made before new

pollution restrictions were imposed on any source.

Under the 1977 amendments, there is no longer any

need to promulgate additional nonattainment

designations that would be immediately effective; the

critical time period covered by these statutory provisions

has passed. Of course, in accordance with the definition

set out in Section 171(2), 42 U.S.C. 7501(2), EPA

continues to revise its nonaitainment designations on the

basis of changed circumstances and new information.

However, these re-designations are not subject to the

stringent deadlines of Sections 107(d)(1)-(2), and are

promulgated after prior notice and opportunity for public

comment.® In short, the unique statutory circumstances

that created the practical need to promulgate the original

designations without prior notice and comment no longer

exist, and the issue presented in the petition will not recur.

‘Proposed designations and the agency's review of comments and

final action are now routinely published. See 44 Fed. Reg. 2617 and

24845 (1979); 44 Fed. Reg. 15743 and 53081 (°979); 44 Fed. Reg.

19212 and 53081 (1979): 44 Fed. Reg. 19213 and 41782 (1979).

Moreover, this is not a situation in which a conflict in

the circuits poses problems of inconsistent compliance

Obligations for petitioners.© The nonattainment des-

ignations and consequent pollution restrictions are set

in each state rather than on a regional or national basis.

That the nonattainment designations are made in some

states after notice and public comment, while in other

states the designations are made immediately effective

subject to subsequent public comment, does not raise for

petitioners the risk of inconsistent legal requirements that

usually results from a contlict in the circuits.’

Given that the pertinent statutory periods have now

passed and that petitioners are not subject to divergent

compliance responsibilities, we submit that review by this

Court is unwarranted.*

‘We note that the relief afforded by the Third Circuit was limited

to the two companies involved in that proceeding (Pet. App. A83-

A84) and therefore does not affect petitioners.

“Any burden resulting from the conflict in the circuits falls upon

the EPA, which did not petition for a writ of certiorari in either the

Third or the Fifth Circuit cases.

‘Petitioners also argue that the Seventh Circuit's decision ts “clearly

erroneous” (Pet. 17). Their claim apparently rests on the mere fact

that the Seventh Circuit found good cause while the Third and Fifth

Circuits did not. That does not establish either that the Seventh

Circuit did not properly review EPA’s actions or that the court's

decision is clearly erroneous. On the contrary, the Seventh Circuit

fully reviewed all of the factors considered by the agency in reaching

the decision to make the designations immediately effective (Pet.

App. A2-A12). The Seventh Circuit also reviewed the changes in the

designations made by EPA in response to public comments, and

found that the agency was “clearly willing to consider, fully and

objectively, all comments” (/d. at AIS). Accordingly, the Seventh

Circuit concluded that there was “no reason to believe” (ébid.) that

prior notice and comment would have altered the result. In contrast,

neither the Third nor the Fifth Circuits weighed all the factors before

2. After sustaining the Administrator's determination

that good cause existed under the EPA to dispense with

prior notice and public comment, the Seventh Circuit

went on to observe (Pet. App. Al2-A15) that in any event

the technical deviation from APA procedures alleged by

petitioners would not be sufficient, under the judicial

review provisions of Section 307(d)(9) of the Clean Air

Act, 42 U.S.C. 7607(d)(9), to reverse the Administrator's

nonattainment designations. Petitioners contend (Pet. 13)

that “[t]he decision of the Seventh Circuit regarding the

applicability of 42 U.S.C. 7607(d)(9) causes uncertainty in

pending and future [EPA] rulemaking * * *.” However,

the Seventh Circuit's discussion on the proper interpreta-

tion of Section 307(d)(9) was clearly dicta, since the court

had previously found that there was good cause under the

APA for the Administrator's action, and hence the

outcome of the case was not affected by the Seventh

Circuit’s observations in this regard. Moreover, neither

the Third nor the Fifth Circuits had considered the

applicability of Section 307(d)(9) (Pet. App. AIS n.14),

and therefore no conflict among the circuits is presented.

the Administrator. For example. they failed to recognize that EPA

reviewed or made 1300 county nonattainment designations (/d. at

A30) and modified over 300 designations proposed by the states (43

Fed. Reg. 8962-9057 (1978)). Such considerations clearly undermine

the Third Circuit’s conclusion that “the state’s submission was likely

to constitute the final rule” (Pet. App. A&I) and that therefore EPA

could have received prior public comments without disregarding the

deadlines imposed by the 1977 amendments. The Third and Fifth

Circuits also ignored the delay caused by late state submissions (id. at

A9). The Seventh Circuit, after careful consideration of the earlier

opinions, declined to follow the decisions of the Third and Fifth

Circuits. As the latest and most complete analysis of the issue, the

Seventh Circuit’s decision represents, we submit, the correct resolu-

tion.

10

There will be time enough after the courts of appeals have

construed Section 307(d)(9) for this Court to consider the

issue in a case in which it is squarely and directly raised.’

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

JACQUES B. GELIN

RONALD C. HAUSMANN

Attorneys

NOVEMBER 1979

*We note that this issue was not briefed or argued by the parties in

the court below (Pet. 7).

DOJ-1979-11