# Opposition — Pacific Legal Foundation v. Costle

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 914

## Text

wr -

No. 80-828
as em 00 a-sncn ermal

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

PACIFIC LEGAL FOUNDATION, ET AL., PETITIONERS
v.

DouGLAS M. CosTLE, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

WaDE H. MCCREE, JR.
Solicitor General

ANGUS MACBETH
Acting Assistant Attorney General

Dik D. SNEL
JosHUA If SCHWARTZ
Attorneys

Department of Justice
Washington, D.C. 205380
(202) 683-2217

{

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-828
PAcIFIC LEGAL FOUNDATION, ET AL., PETITIONERS
v.

DOUGLAS M. COSTLE, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS
IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the district court had jurisdiction to
review a temporary moratorium, announced in a regu-
lation promulgated by the Environmental Protection
Agency, on construction of certain major sources of
air pollution in highly polluted areas of California,
where the Clean Air Act vests exclusive jurisdiction
to review regulations and any other final agency
action of EPA in the court of appeals.

2. Whether the district court abused its discretion
in concluding that petitioners had not demonstrated
a probability of success on their claim that provi-
sions of the Clean Air Act which authorize the limi-
tation of federal grant funds to state agencies that
do not participate in particular related federal regu-
latory programs are unconstitutional.

(I)

TABLE OF CONTENTS

Page
Reman ta Rest 7 RSENS SENOS UM ONC Ne oe
IPI SP a mS cy Oe Ney ANC RAAT 1
Rs Seah ih rs er oe de ae 1
RR LER BARRO US ET A I Yo 9
SONI ic vicensisineatainsec tee ees) 15
TABLE OF AUTHORITIES
Cases:
Abbott Laboratories v. Gardner, 387 U.S. 186........ 12
Baker V. Carr, 869 U.S. 186 ...................................... 14
Brown V. EPA, 521 F.2d 827 (Brown 1), 521 F.2d
827, vacated and remanded, 431 U.S. 99... 4,5,18
Brown V. EPA, 566 F.2d 665 (Brown II) _.......... 5,13
Chrysler Corp. Vv. Brown, 441 U.S. 281 .............. 10
Citizens to Save Spencer County v. EPA, 600 F.2d
Re RN ON OE ARS La SEO a 11

Columbia System v. United States, 316 U.S. 407.. 13
Commonwealth of Pennsylvania v. EPA, 500 F.2d

i a Nn Re eC ci ET, TBD (rahe My a 4
District of Columbia v. Train, 521 F.2d 971, va-

cated and remanded sub nom. EPA v. Brown,

Gs: Shee Oe Siecle Sl ee a 4,138
Duke Power Co. v. Carolina Environmental Study
Ns BN Ta i te aa 14
ara: t. Dee Ce UE SS... 4-5
Friends of the Earth v. Carey, 552 F.2d 25, cert.
RI Ge Se OE hi ee 14
Frozen Food Express v. United States, 351 U.S.
TERRIA TENA ROD das wea TN ae 12

Fullilove v. Klutznick, No. 78-1007 (July 2, 1980).. 15
Harrison v. PPG Industries, Inc., No. 78-1918
bE ay han Atal eM ER Rene 9,11,12
Morton V. Ruiz, 416 U.S. 199 .................................. 10
National League of Cities v. Usery, 426 U.S. 8838.. 13

(m1)

PREVIOUS PAGE WAS BLANK |

Cases—Continued Page
FORGE We Ce ig Ie NN I iivceteeneinsseccidasicennabcnceces 4
Oklahoma v. Civil Service Commission, 330 U.S

ISSR eae RIC a EE SEN ORO Ee 14
Sierra Club v. EPA, 540 F.2d 1114, cert. denied,

rn i ackteanas 14
State of Maryland v. EPA, 530 F.2d 2165 ............... 4,5
Steward Machine Co. v. Davis, 301 U.S. 548 ........ 15
ool Uk es a RS ae ee eee 1
United States v. Storer Broadcasting Co., 351

ESRI SRS TREES A Ire Ae Sasa ae ROE 12
Victory Carriers v. Law, 404 U.S. 202 .................... 9
Whirlpool Corp. v. Marshall, 445 U.S. 1 ................ 10

Constitution, statutes and regulations:

United States Constitution, Tenth Amendment.... 14
Administrative Procedure Act, 5 U.S.C. 553(b).... 10
Clean Air Act, as amended by the Clean Air Act
Amendments of 1977, Pub. L. No. 95-95, 91 Stat.
685, 42 U.S.C. (& Supp. I) 7401 et seq.:

42 U.S.C. (1976 ed.) 1857c-5 (a) (2) (A) ........
42 U.S.C. (Supp. I) 7401 note ..........................
Oy Tees CI ED WII So setcccccnvenessneceseoseveceiees
42 U.S.C. (Supp. I) 7410(a) (1) -...22202000200..
42 U.S.C. (Supp. I) 7410(a) (2) (B) 00000000...
42 U.S.C. (Supp. I) 7410(a) (2) (G) —.00....
42 U.S.C. (Supp. I) 7410(a) (2) (1) oo... 8, 6,1
42 U.S.C. (Supp. I) 7410(c) .....0.. ee. 1,
ge ee ae
42 U.S.C. (Supp. I) 7501-7508 20000...
42 U.S.C. (Supp. I) 7502 note .......00... oo...
42 U.S.C. (Supp. I) 7608(a) ............................
42 U.S.C. (Supp. I) 7502(a) (1) «0.02220...
42 U.S.C. (Supp. I) 7502(4) (2) 0000.
42 U.S.C. (Supp. I) 7502(b) (2) -........0 oo...
42 U.S.C. (Supp. I) 7502(b) (10) 00000... 4
42 U.S.C. (Supp. I) 7502(b) (11) (B) ............ 4
& UBL. Sie. 1) TRSRCe) «..-.-~<----50.:00.5
42 U.S.C. (Supp. I) 7506(a) ............................
RR A Taek OTe ae

o
AI ISHN TPR COAWDNRAOOCN NHK Oe

Vv

Constitution, statutes and regulations—Continued Page

I is detstletinsntivinicnncayiniicoemiineniatedancciam 8
42 U.S.C. (Supp. I) 7607(b) (1) -............. 9,10, 11,12
42 U.S.C. (Supp. I) 7607(e) ......................-.-.. 9
ee SIN Slidieeiircceetcsmvacinesininasiereeseneniintnet 5,7

ge | Eb: | en 2
40 C.F.R. (1979) :

RED I Ce ne Se Oe
REET SEE Op et ee be eee”
a cede alipiabaenticnaeinbiienalh
Section 52.2383(d) -................ Ea NA a
a ccsdeeenmnntnienine
|: an
Rn I nc secesccnseninn
ee

AAAI DAAaIh

Miscellaneous:
38 Fed. Reg. (1973) :

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—_
oO
oo
ol
_
~ ie

Sa a ne 2
2

66 Fes. Bay. Sree0 (IST) .................................. 11
rs I TOD cence 7
45 Fed. Reg. (1980) :

sorry?
0
—_
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_
a
NYAIII44

H.R. Rep. No. 95-294, 95th Cong., 1st Sess.
a le i oe a 4

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.
A-25 to A-82) is reported at 627 F.2d 917. The
order of the district court (Pet. App. A-1 to A-24)

is unreported.
JURISDICTION

The judgment of the court of appeals was entered
on August 12, 1980. Rehearing was denied by the
court of appeals on October 2, 1980 (Pet. App. A-33).
The petition for a writ of certiorari was filed on
November 22, 1980. The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).

STATEMENT

l.a. Under Section 109 of the Clean Air Act, 42
U.S.C. (Supp. I) 7409, the Administrator of the
Environmental Protection Agency is responsible for
establishing two sets of nationwide air quality
standards. The “primary” standards, designed to
protect the public health, were to be achieved no
later than 1975. 42 U.S.C. (1976 ed.) 1857c-5(a)
(2)(A); see Train v. NRDC, 421 U.S. 60, 64-67
(1975). Each state was required to submit to the
Administrator for approval a state implementation
plan (SIP) for “implementation, maintenance, and
enforcement” of the air quality standards for every
portion of the state. 42 U.S.C. (Supp. I) 7410(a)
(1). If the Administrator found the plan inadequate
or if the state declined to submit a plan, the Admin-
istrator ultimately was required to promulgate a
federal plan for the state. 42 U.S.C. (Supp. I) 7410
(c). Each SIP must include emission limitations for
stationary pollution sources, schedules for compli-
ance, and provisions for such additional methods of

(1)

2

pollution controls as are necessary. The Act also pro-
vides that each SIP must include measures designed
to reduce pollution from motor vehicles, including
automobile inspection and maintenance (“I/M”) and
other transportation control programs if necessary
to insure attainment and maintenance of the national
standards. 42 U.S.C. (Supp. I) 7410(a)(2)(B) and
(G).

b. By 1976 it became apparent that many areas
of the country had failed to attain the primary am-
bient air quality standards by the 1975 statutory
deadline. A then-existing EPA regulation, 40 C.F.R.
51.18(b) (1976), on its face prohibited construction
of any major source of pollution in any area in which
the standards for any pollutant generated by the
source were not being met. EPA modified this posi-
tion by publication of an interpretive rule on Decem-
ber 16, 1976, construing that regulation to permit
certain major sources of pollution to be put into op-
eration in nonattainment areas in certain situations.
41 Fed. Reg. 55524-55530; 40 C.F.R. Part 51 (1979).
Under the interpretive rule, known as the “emission
offset” ruling, a new source was permitted if emis-
sions from existing sources were to be reduced by an
amount greater than the incremental increase in
pollution from the new source, if the new source was
held to the lowest achievable rate of emissions, and
if the applicant for the permit owned no other source
that violated the applicable SIP. EPA also requested
the states to develop revised SIP strategies for areas
in which the air quality standards were not being
met. See 41 Fed. Reg. 28600 (1976).

ce. In the Clean Air Act Amendments of 1977, Pub.
L. No. 95-95, 91 Stat. 685, Congress added a new
Part D to Title I of the Act (42 U.S.C. (Supp. I)
7501-7508) applicable to “nonattainment areas” in

3

which national ambient air quality standards had
not been met. Under Part D, the deadlines for attain-
ment of the primary ambient air quality standards
for most pollutants were extended until December 31,
1982. To ensure that these new deadlines would be
met, Congress required states to submit substantially
revised SIP’s for nonattainment areas to EPA by
January 1, 1979. Clean Air Act Amendments of
1977, Section 129(c), 42 U.S.C. (Supp. I) 7502 note.
These revisions were to be approved by EPA by July
1, 1979 if they met the requirements of the Act.
Congress was also concerned that new sources not
be constructed in nonattainment areas in a manner
that would exacerbate existing violations while the
states were formulating their revised plans. There-
fore, Congress expressly ratified EPA’s emission off-
set ruling, but directed that it be applied only until
July 1, 1979. Section 129(a) (1) of the 1977 Amend-
ments, 42 U.S.C. (Supp. I) 7562 note. For later
periods, Congress required each state to include in its
SIP, by August 1978,’ a provision imposing a limited
conditional moratorium on construction and modifi-
cation of major stationary sources after July 1, 1979.
The moratorium was to affect only sources that would
emit 100 tons or more per year of a pollutant for
which the national ambient air quality standard was
being violated in a particular area, and it was to
operate only until a revised SIP complying with the
provisions of Part D was approved or promulgated
by EPA. See 42 U.S.C. (Supp. I) 7410(a) (2) (1).
Widespread failure to attain air quality standards
by 1975 for automobile exhaust pollutants, such as
carbon monoxide and photochemical oxidants (ozone),

‘ This date is established by Section 406 (d) (2) of the 1977
Amendments, 42 U.S.C. (Supp. I) 7401 note.

4

posed a special problem. In 1977, Congress author-
ized EPA to grant limited extensions, until December
31, 1987, for meeting these two standards. 42 U.S.C.
(Supp. I) 7502(a)(2). But to minimize the adverse
health effects, Congress required any state that re-
ceived an extension to include an enforceable I1/M
program in its revised SIP and to implement this pro-
gram “as expeditiously as practicable,” but no later
than 1982. 42 U.S.C. (Supp. I) 7502(b) (2), 7502
(b) (10) and 7502(b)(11)(B). See H.R. Rep. No.
95-294, 95th Cong., lst Sess., 282 (1977).

Congress was aware that many states had yet to
adopt transportation control measures, including I/M,
and that this problem had generated considerable liti-
gation. See H.R. Rep. No. 95-294, supra, at 286-291.”
Prompted by suggestions in several of the relevant

2In 1973, acting pursuant to a court order in NRDC v.
EPA, 475 F.2d 968 (D.C. Cir. 1973), the Administrator re-
quired states needing transportation control plans to amend
their SIP’s to include such plans. 38 Fed. Reg. 2194, 10851
(1973). When several states failed or refused to adopt these
amendments, the Administrator promulgated federal trans-
portation control plans for those states, including an inspec-
tion and maintenance program for motor vehicles, and he
ordered the states to adopt implementing legislation. Several
states, including California, challenged EPA’s authority under
the Clean Air Act and the Constitution to require the states,
through threat of enforcement actions under 42 U.S.C. (Supp.
I) 7413, to adopt transportation control measures. See, e.g.,
Brown V. EPA, 521 F.2d 827 (9th Cir. 1975) (Brown I);
State of Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975) ; Dis-
trict of Columbia Vv. Train, 521 F.2d 971 (D.C. Cir. 1975) ; but
see Commonwealth of Pennsylvania v. EPA, 500 F.2d 246 (3d
Cir. 1974). These cases were vacated and remanded by this
Court as moot after EPA represented that the federal regula-
tions had to be modified to remove the requirement that the
states adopt implementing laws. EPA v. Brown, 431 U.S. 99

= =

5

court decisions that withholding of federal funds
would be both a useful and constitutionally permis-
sible incentive for state participation,* Congress con-
ditioned certain federal grants upon a state’s satis-
factory participation in the SIP program. Under 42
U.S.C. (Supp. I) 7506(a), where transportation
control measures are needed, the revised SIP has not
been approved by July 1, 1979, and reasonable efforts
to submit such a SIP have not been made, EPA
“shall not approve” grants otherwise authorized by
the Clean Air Act and the Secretary of Transporta-
tion shall not award certain highway grants. In ad-
dition, under 42 U.S.C. (Supp. I) 7616(b), grants
for sewage treatment works may be withheld or re-
stricted if the state does not have an approved SIP
that accounts for the increases in air pollution caused
by the sewage works or the residential, commercial,
or vehicular growth made possible by the sewage
works.

d. Many states that had nonattainment areas did
not submit revised SIP’s to EPA by July 1, 1979.
Some of these states had not adopted special provisions
in their existing SIP’s imposing the required con-
struction moratorium in these circumstances.‘ There-

(1977). Thereafter, the court of appeals for the Ninth Cir-
cuit again held EPA lacked statutory authority under the Act
to bring enforcement actions against the states for failure
to implement the federally promulgated SIP requirements in-
volved in that case. Brown v. EPA, 566 F.2d 665 (9th Cir.
1977) (Brown II).

3 See, e.g., Brown I, supra, 521 F.2d at 840; State of Mary-
land v. EPA, supra, 580 F.2d at 228.

*On the other hand, more general language having that
effect had been adopted by, or promulgated for, the states.
40 C.F.R. 51.18(b) required every SIP to include provisions
barring construction of new sources or modification of exist-

6

fore, acting pursuant to 42 U.S.C. (Supp. I) 7410(c)
and 7601, the Administrator promulgated a regula-
tion on July 2, 1979 which had the effect of inserting,
or reaffirming the operation of, the required interim
moratorium in the SIP of each noncomplying state
(Pet. App. A-112 to A-113). This regulation was
described as an “interpretive rule,” stating the view
of the Administrator that the 1977 Amendments, by
adding 42 U.S.C. (Supp. I) 7410(a)(2)(1), them-
selves required imposition of the temporary mora-
torium and that he lacked any discretion in the mat-
ter (Pet. App. A-106 to A-107). No petition for
review of this regulation was filed in the court of
appeals.

2. California did not submit SIP revisions for any
of its air pollution control districts by July 1, 1979.
A construction moratorium therefore was activated
in its SIP by the regulation promulgated on July 2,
1979. In the succeeding months California submitted
SIP revisions to EPA covering all regions of the
State encompassing nonattainment areas. EPA has
proposed action on each of the submitted plans. Cali-
fornia requested an extension of the December 31,

ing sources where such acts would “interfere with attainment
or maintenance of a national standard.” In reviewing or
promulgating state SIP’s, EPA inserted the necessary provi-
sions wherever they were lacking. 40 C.F.R. 52.10. Califor-
nia’s SIP contained such provisions. See 40 C.F.R. 52.233 (d),
(f) (2), (£) (8) (ii), (g@) (2), and (g)(3). These provisions,
effective prior to July 1, 1979, seemingly implemented a con-
struction moratorium. They did not have that effect, however,
so long as the EPA’s emission offset ruling was in effect. See
pages 2-3, supra. Once the emission offset ruling was sus-
pended on July 1, 1979, as Congress had directed (see page 3,
supra), these provisions again became effective as a construc-
tion moratorium. EPA promulgated the July 2, 1979, mora-
torium regulation at issue in this case partially in order to
make this effect clear to the public.

7

1982, deadline for attainment of primary air quality
standards for carbon monoxide and ozone for six
regions, including major metropolitan nonattainment
areas, pursuant to 42 U.S.C. (Supp. 1) 7502(a). Re-
vised SIP’s for these areas must therefore include an
I/M plan among the measures prescribed for control
of these pollutants. 42 U.S.C. (Supp. I) 7502(b)
(11)(B). EPA has tentatively proposed to disap-
prove the ozone and carbon monoxide provisions of
the revised SIP’s submitted for these areas because
they do not certify the existence of legal authority
necessary to implement an I/M program, as required
by 42 U.S.C. (Supp. I) 7502(b) (10). To remedy
this deficiency, the California legislature has consid-
ered bills to authorize an I/M program and is ex-
pected to resume consideration of I/M in the coming
year.

Given the current impasse, EPA proposed on Sep-
tember 8, 1980 to invoke the restrictions on certain
federal sewer and transportation grant programs, as
required by 42 U.S.C. (Supp. I) 7506 (a) and 7616
(b). On December 12, 1980, EPA gave final notice
that these restrictions were being imposed. 45 Fed.
Reg. 81746.

3. By amended complaint filed on December 21,
1979, petitioners sovtht to compel the EPA Admin-
istrator to perform an allegedly nondiscretionary
duty to promulgate a substitute revised SIP for the
State of California. In their accompanying motion
for a preliminary injunction, however, petitioners
sought only to enjoin EPA from applying the limited

544 Fed. Reg. 57109 (1979) (San Diego Air Basin) ; 45
Fed. Reg. 21271 (1980) (South Coast Air Basin); 45 Fed.
Reg. 21282 (1980) (San Francisco Air Basin) ; 45 Fed. Reg.
58882 (1980) (Sacramento metropolitan area) ; 45 Fed. Reg.
58897 (1980) (Ventura County); and 45 Fed. Reg. 58912
(1980) (Fresno County).

8

construction moratorium described above to nonat-
tainment areas in California and to enjoin EPA from
“threatening” to utilize the funding restriction au-
thority provided by the Act.°

The district court declined to issue a preliminary
injunction. The district court held that exclusive ju-
risdiction of the challenge to the construction mora-
torium was vested by 42 U.S.C. (Supp. I) 7607(b) in
the Court of Appeals for the District of Columbia
Circuit. In the vourt’s view, whether the moratorium
was considered to be the promulgation of a regula-
tion, the promulgation of a state implementation
plan, or other final action by EPA, exclusive juris-
diction of this claim lay elsewhere (Pet. App. A-8 to
A-16). The district court denied relief on the funding
claim because it concluded that petitioners had “vir-
tually no chance of succeeding on the merits” (Pet.
App. A-19 to A-20). The court of appeals affirmed
in a brief opinion approving the reasoning of the dis-
trict court (Pet. App. A-25 to A-32)."

*In alleging threatened fund termination, petitioners
pointed only to a telegram from an EPA official to members
of the California legislature (see Pet. App. A-153). The
proposed restriction of funding noticed in the Federal ILezister
(see page 7, supra) had yet to occur. The federal respondents
accordingly suggested that this aspect of the claim was not
ripe for adjudication. Given the December 11 notice cited
in the text, we no longer press the ripeness claim.

7A motion for an injunction pending ruling on a petition
for rehearing was denied on September 15, 1980. Petitioners’
motion for an injunction pending filing of a petition for a
writ of certiorari was denied by the court of appeals on
October 16, 1980. Mr. Justice Rehnquist denied a similar
application on October 22, 1980.

9
ARGUMENT

The petition for a writ of certiorari challenges only
the denial of a motion for a preliminary injunction.
The decision below does not conflict with any decision
of this Court or any court of appeals, presents no
issue of general importance, and is clearly correct.
Harrison Vv. PPG Industries, Inc., No. 78-1918 (May
27, 1980). Review by this Court accordingly is un-
warranted.

1. a. The conclusion reached by the court below
that EPA’s action in instituting the construction
moratorium is reviewable only in the court of appeals
is clearly correct. The United States Court of Ap-
peals for the District of Columbia Circuit has exclu-
sive original jurisdiction to review, inter alia, “any
* * * nationally applicable regulations promulgated
or final action taken, by the Administrator.” The
court of appeals for the circuit in which a given state
is located has exclusive jurisdiction to review ap-
proval or promulgation of “an implementation plan
* * * or any other final action of the Administrator
* * * which is locally or regionally applicable.” 42
U.S.C. (Supp. I) 7607(b) (1), 7607(e). However,
even such locally and regionally applicable actions
are made reviewable only in the Court of Appeals
for the District of Columbia Circuit if the Adminis-
trator certifies the nationwide scope or effect of the
decision embodied therein. /bid.

In this action petitioners seek review of the July
2, 1979 EPA regulation that had the effect of insert-
ing or clarifying provisions in all state implementa-

8 Petitioners’ suggestion (Pet. 10) that the district court
has inherent “traditional equity jurisdiction” not resting on
any statutory grant of jurisdiction, is plainly incorrect. Vic-
tory Carriers v. Law, 404 U.S. 202, 212 (1971).

10

tion plans, including California’s. The regulation ex-
pressly states the Administrator’s determination of
nationwide applicability (Pet. App. A-112), thereby
giving clear notice that the proper forum for judicial
review is in the District of Columbia Circuit. Peti-
tioners’ contention to the contrary rests upon the fact
that the July 2, 1979 regulation was classified as an
“interpretive rule’: by EPA, and was accordingly
promulgated without notice and comment under the
Administrative Procedure Act, 5 U.S.C. 553(b). But
nothing in 42 U.S.C. (Supp. I) 7607(b) (1) excludes
interpretive regulations from its provision for exclu-
Sive jurisdiction in the court of appeals.

Contrary to petitioners’ suggestion (Pet. 10-12),
the decision below does not conflict with Chrysler
Corp. v. Brown, 441 U.S. 281 (1979), or Morton vy.
Ruiz, 415 U.S. 199 (1974). Neither case addresses
the proper forum for judicial review of an interpre-
tive rule. Moreover, the decision below concerning
the proper forum for judicial review in no sense
“gave substantive effect to an interpretive rule’ (Pet.
10, 12). Petitioners’ claim that EPA impermissibly
employed an interpretive rule to establish substantive
law could have been raised in a timely petition for
review of the July 2, 1979, regulation, but petitioners
did not pursue that course. Accordingly, that ques-
tion is not properly presented here. Whirlpool Corp.
v. Marshall, 445 U.S. 1, 11 n.15 (1980).°

® Petitioners’ assertion is, in any event, incorrect. The
moratorium regulation simply announced and implemented
the combined effect of Section 129(a) of the 1977 Clean Air
which cancelled the earlier “emission offset” interpretive rale-
Act Amendments and 42 U.S.C. (Supp. I) 7410(a) (2) (1),,
on July 1, 1979 and mandated the construction moratorium.
See pages 2-4, 6-7, supra. Nor is there any necessary incon-

11

ce. In any event, the promulgation of the construc-
tion limitation on July 2, 1979, was “final action”
by the Administrator reviewable only in the court of
appeals. 42 U.S.C. (Supp. I) 7607(b) (1). The deci-
sion in Harrison v. PPG Industries, Inc., supra, re-
jects all arguments that the reach of this jurisdic-
tional provision is narrower than its plain language
indicates. Slip op. 8-13. The Court there held, agree-
ing with the EPA petitioners (id. at 10; emphasis
added) :

that the phrase, “any other final action” * * *
must be construed to mean exactly what it says,
namely, any other final action.

Petitioners acknowledge (Pet. 10) that “the an-
nounceruent of the construction ban may have been
a ‘final action,’” but assert that it escapes the exclu-
sive jurisdiction of the court of appeals under 42
U.S.C. 7607(b) (1) because implementation of the
moratorium entails the application of the moratorium
regulation to individual permit applications. This
contention is unfounded. There is simply no indica-
tion, and petitioners do not suggest, that EPA’s ac-
tion is in any way informal or less than definitive.”

sistency between the label “interpretive” and the fact that a
regulation affects individuals and businesses. See Citizens to
Save Spencer County v. EPA, 600 F.2d 844, 876, 876 n.158
(D.C. Cir. 1979).

Contrary to petitioners’ suggestion (Pet. 9-10), the mora-
torium regulation does not allow any discretion to the state
agency to issue a permit when application is made to construct
a new or modified major source of a pollutant for which the
projected site does not meet national standards. While condi-
tional permits may be issued for such sources during the
moratorium, these permits must prohibit all construction
until a revised SIP is approved or promulgated. See 44 Fed.
Reg. 37680 (1979).

12

It is accordingly final for purposes of judicial review.
See Abbott Laboratories v. Gardner, 387 U.S. 1386,
151 (1967). It is well established that definitive
agency regulations and rulings are final for judicial
review purposes, even where implementation has yet
to occur and may entail further proceedings. Id. at
149-151; United States v. Storer Broadcasting Co.,
351 U.S. 192, 193-200 (1956); Frozen Food Express
v. United States, 351 U.S. 40 (1956) ; Columbia Sys-
tem v. United States, 316 U.S. 407, 418-419 (1942)."
In any event, if petitioners were correct in suggest-
ing that the construction moratorium does not repre-
sent final agency action reviewable in the court of
appeals under 42 U.S.C. (Supp. I) 7607(b) (1), the
district court was equally lacking in jurisdiction, for
reviewable final agency action under the Administra-
tive Procedure Act would then be lacking. Harrison
v. PPG Industries, Inc., supra, slip op. 8, 10. Accord-
ingly, on any view of the law, the district court was
without jurisdiction of petitioners’ challenge to the
construction limitation.

2. Petitioners attempt to buttress their jurisdic-
tional argument by asserting (Pet. 11-12) that EPA
has altered its position as to the nature and effect of
the July 2, 1979 regulation. This effort is unavailing.
The notice of promulgation of the moratorium ex-
plicitly stated the Administrator’s position that the
1977 Clean Air Act Amendments made imposition of
the construction limitation “automatic and manda-
tory” (Pet. App. A-106) ; that the moratorium regu-

The ruling deemed final in Harrison, that PPG Industries’
proposed facility was subject to a particular set of new source
performance standards, left open the question whether the
facility met those standards. Petitioners’ argument there-
fore challenges the result in Harrison.

13

lation activated the construction restrictions already
present in most states’ SIP’s (ibid.); that morato-
rium provisions were added to any SIP’s deficient or
ambiguous in this regard (id. at A-107); and that,
for purposes of judicial review, the moratorium
“rule” was “nationally applicable and is based on de-
terminations of nationwide scope and effect” (id. at
A-112). EPA’s consistent position therefore supports
the jurisdictional ruling below.

3.a. In view of the jurisdictional defect infecting
petitioners’ claim, there is no need to consider the
constitutional issues they would raise (Pet. 5-8).
These claims are, in any event, entirely unfounded.
National League of Cities v. Usery, 426 U.S. 833
(1976), is inapposite here, for the construction mora-
torium does not entail regulation of any state func-
tions at all, much less “functions essential to separate
and independent existence” of the state. Compare,
National League of Cities, supra, 426 U.S. at 845,
852. What is challenged here is simply direct regula-
tion of private commerce authorized by the Commerce
Clause. See National League of Cities, 426 U.S. at
845. Such “direct federal regulation by definition
involves no intrusion on state sovereignty whatso-
ever.” District of Columbia v. Train, 521 F.2d 971,
994 n.27 (D.C. Cir. 1975), vacated and remanded
sub nom. EPA v. Brown, 431 U.S. 99 (1977) ; Brown
v. EPA, 521 F.2d 827, 840 (9th Cir. 1975), vacated
and remanded, 481 U.S. 99 (1977), opinion on re-
mand, 566 F.2d 665 (9th Cir. 1977) (see note 2,
supra). The courts of appeals have uniformly sus-

'2 The Brown decisions of the court of appeals do not sup-
port petitioners’ contentions. In the Brown cases, EPA
claimed the authority to direct the state to take particular
action and adopt particular state laws, and to enforce this

14

tained federal laws, passed under the Commerce
Clause power, which, like the Clean Air Act, allow
the states the choice as to whether to participate in a
federal regulatory scheme. See, e.g., Friends of the
Earth v. Carey, 552 F.2d 25, 36-39 (2d Cir.), cert.
denied, 484 U.S. 902 (1977); Sierra Club v. EPA,
540 F.2d 1114, 1140 (D.C. Cir. 1976), cert. denied,
430 U.S. 959 (1977). See also, Duke Power Co. v.
Carolina Environmental Study Group, 488 U.S. 59,
84 n.27 (1978). Petitioners’ Tenth Amendment claim
is therefore devoid of merit.”

b. Petitioners’ arguments concerning funding limi-
tations may be raised in a petition for review of
whatever limitations the Administrator ultimately
applies to California’s non-attainment areas and
therefore should not be considered here. In any case,
the district court plainly did not abuse its discretion
in denying a preliminary injunction based on a deter-
mination that petitioners have “virtually no chance
of succeeding on the merits” of their constitutional
claim. This Court repeatedly has upheld the consti-
tutionality of statutes conditioning availability of
federal grant funds upon state participation in re-
lated regulatory programs. Oklahoma v. Civil Service
Commission, 330 U.S. 127, 148-144 (1947) ; Steward

authority in the courts through injunctive relief, imposition
of a receivership on state functions, and contempt citations
against state officials, including the governor. Here, EPA has
done none of these things, and asserts no power to require the
State to act at all. EPA has not, in fact, required California
to do anything.

18 Petitioners’ reliance (Pet. 7) on the Guaranty Clause is
equally unfounded. See Baker v. Carr, 369 U.S. 186, 224
(1962).

15

Machine Co. v. Davis, 301 U.S. 548, 589-591 (1937) ;
see also Fullilove v. Klutznick, No. 78-1007 (July 2,
1980), slip op. 22 (plurality opinion).

c. Petitioners’ repeated claims (Pet. 6-7, 13) that
the Administrator has breached a mandatory duty to
promulgate a substitute SIP for California on July
1, 1979, is not properly presented to this Court. Peti-
tioners deliberately excluded this contention from the
scope of their motion for a preliminary injunction
(Pet. App. A-7), and this question was not addressed
by either court below. Petitioners’ motion for sum-
mary judgment on this point has been presented to
the district court and is now awaiting decision.

CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

WADE H. MCCREE, JR.
Solicitor General

ANGUS MACBETH
Acting Assistant Attorney General

DirK D. SNEL
JOSHUA I. SCHWARTZ
Attorneys
JANUARY 1981

* U. &. GOVERNMENT PRINTING OFFICE; 1961 335641 236

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0830%3A2. Public record. Not legal advice.