Petition — Mountain States Legal Foundation v. Costle

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Supreme Court, U.S,

FILED s

80-1084 | saw 2 1981

MICHAEL RODAK, JR., CLERK

No.

IN THE

Supreme Court of the United States

October Term, 1980

MOoOuNTAIN STATES LEGAL FOUNDATION, et al.,

Petitioners,

versus

Douc.as M. COsTLE,

IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

James G. WaTT, COUNSEL OF RECORD

GALE A. NORTON

MOouNTAIN STATES LEGAL FOUNDATION

1200 LINCOLN STREET, SuiTE 600

DENVER, COLORADO 80203

(303) 861-0244

ATTORNEYS FOR THE PETITIONERS

QUESTIONS PRESENTED FOR REVIEW

Questions relating to the merits:

1. In order to force the Colorado General Assembly to enact

an automobile emission control inspection and maintenance

program, the Environmental Protection Agency withheld over

$300 million in federal highway and sewage treatment facility funds

and imposed a ban on major industrial construction. Did the EPA

action violate the constitutional political rights of legislators and

citizens by:

(a) removing decisionmaking regarding the establishment of

a state program from the legislature and placing it in the hands

of a national administrative agency, thereby attenuating

political accountability, destroying the legislative discretion of

elected officials, and removing ultimate control over

legislators from the people of the state?

(b) restricting legislative debate and public input into the

legislative process by imposing a deadline for enacting

legislation?

conformity?

(d) coercing state legislators to pass legislation meeting

federally imposed criteria, and thereby interfering with the

integral state function of deliberative lawmaking?

2. Has the EPA Administrator exceeded his authority under

the Clean Air Act by:

(a) using withholdings of federal highway and sewage

treatment funds inappropriately and coercively to obtain state

legislative action?

(b) “conditionally approving” the state implementation plan

submitted by Colcrado rather than either approving or

. disapproving the plan?

“ahi

without having specific authority in the state implementation

plan?

Questions relating to the standing of petitioners:

1. Where legislators and citizens alleged that EPA actions

deprived them of constitutional rights, and further alleged that EPA

actions in violation of the Clean Air Act directly and monetarily

affected them, did these petitioners have standing to challenge EPA

actions?

2. Did the court of appeals err in holding that the State of

Colorado was the “real party in interest” and hence the only party

with standing to challenge EPA action regarding the state air

pollution control implementation plan?

s*%

-ili-

IN THE SUPREME COURT OF THE UNITED STATES

MOUNTAIN STATES LEGAL FOUNDATION, a non-profit

corporation, on behalf of its members who are citizens of the State

of Colorado; THE FOLLOWING MEMBERS OF THE SENATE

AND HOUSE OF REPRESENTATIVES OF THE STATE OF

COLORADO IN THEIR RESPECTIVE OFFICIAL CAPA-

CITIES AS INDIVIDUALLY ELECTED LEGISLATORS OF

THE STATE OF COLORADO: Senator FRED E. ANDERSON;

Senator DAN D. NOBLE; Senator L. DUANE WOODARD;

Senator DONALD A. SANDOVAL; Representative ROBERT F.

BURFORD,; Representative JOHN G. HAMLIN; Representative

W. H. (Bill) BECKER; Representative BOB LEON KIRSCHT;

Representative CARL B. BLEDSOE; Representative C. MICHAEL

CALLIHAN; Senator RALPH A. COLE; Representative FRANK

DE FILIPPO; Representative STEVEN J. DURHAM; Representa-

tive CARL H. GUSTAFSON; Representative WILLIAM F.

HILSMEIER; Senator DON MacMANUS; Representative JOHN

R. McELDERRY; Representative RAY POWERS; Representative

FRANK H. RANDALL; Representative PAUL D. SCHAUER;

Representative BEV SCHERLING; Representative JAMES M.

SHEPARD; Representative CARL E. SHOWALTER; Representa-

tive A. J. (Mick) SPANO; Representative KATHY SPELTS;

ond ch NICK THEOS; and the STATE OF COLORADO

ex rel. MOUNTAIN STATES LEGAL FOUNDATION,

Petitioners,

DOUGLAS M. COSTLE, in his official capacity as Administrator

of the UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; ROGER L. WILLIAMS in his official capacity as

Regional Administrator of Region VIII of the UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY; the UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY; and

the STATE OF COLORADO ex rel. J. D. MacFARLANE,

Respondents.

-iv-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW. ....... 000. ee eevee

I I SPD Lae a © arwae a's b bo 08

JURISDICTION

en I oe ek exe w habe ehees

ee es cee belewaiewcee wha ee

SUMMARY OF THE ARGUMENT.........eccceeeees es ee

REASONS FOR GRANTING THE WRIT..........ceeceeeees

I. E.P.A.’s DEMAND THAT THE STATE LEGISLATURE

Enact A New INSPECTION AND MAINTENANCE

PROGRAM OR FACE SEVERE SANCTIONS VIOLATED

THE CONSTITUTIONAL RIGHTS OF LEGISLATORS AND

I eeu CeCe ace oe cna waeee ces Caves

A. The EPA action destroys the constitutional

balance of national and state powers..........

The concept of federalism embodied in the

Constitution prevents the national govern-

ment from interfering with sovereign state

government functions. .............eee0:

EPA’s action unconstitutionally coerces the

state legislature and thereby displaces state

decisionmaking, in excess of the commerce

and spending powers. ..........eeeeeeeee

Preemption is the only constitutional way for

the national government to regulate in the

absence of state cooperation. ...........4.

B. The EPA action destroys the process of political

accountability that is crucial to constitutional

IIE 650554 cok k nc ecuhadwiesasny vos

-\V-

Il. THe E.P.A. ADMINISTRATOR'S ACTIONS EXCEEDED

His AUTHORITY UNDER THE CLEAN AiR ACT...... 15

Ill. THe Court or APPEALS ERRED IN DENYING

PETITIONERS STANDING TO ASSERT THEIR RIGHTS

UNDER THE CONSTITUTION AND THE CLEAN AiR ACT 17

A. As a result of the EPA action, petitioners have

suffered injury in fact in the form of economic

harm and deprivation of their constitutional

ee ances veccphosecess « 17

B. Petitioners have standing as aggrieved parties to

seek judicial review under section 307 of the

EE Oe 20

C. Petitioners have shown standing to assert

violation of their constitutional rights and thus

may address all issues properly before the Court. 22

SO 23

-vi-

TABLE OF AUTHORITIES

Cases

Page

Aissmay, BPA, S2i F.20 842 (9m Cir. 1975)... ccc ccc eee 6

Arlington Heights v. Metropolitan Housing Development

PE CEOE Pe. sce edscasccssveccccsoes 18

ASARCO, Inc. v. EPA, 578 F.2d 319 (D.C. Cir.

ei hese bea vesenesecscesscess 21

Association of Data Processing Services Organizations, Inc.

ES ) 17

ER GS 15

0 15

Brown v. EPA, 521 F.2d 827 (9th Cir. 1975), vacated,

431 U.S. 99 (4977), reinstated in part, 566

ETE ey vcs pvevsccssecesveccees 6, ll

Citizens to Save Spencer County v. EPA, 600 F.2d 844

eR Ce ken i syne se bse beessscccseees 21

Coleman v. Miller, 307 U.S. 433 (1939). ......cccccccccseee 18

Connecticut Light & Power Co. v. FPC, 324 U.S. 515

GN eee esc ynccpcdanccesssccens 16

EEE MP POP CRPEL), ccc ccc cece esc ceece 8

District of Columbia v. Train, 521 F.2d 971 (D.C. Cir. 1975),

vacated sub. nom. EPA v. Brown, 431 U.S. 99

EE ESE 6, ll

Duncan v. McCall, 139 U.S. 449(1891). 0... 0... ce ee eee 15

Dunn v. Blumstein, 405 U.S. 330 (1972)... 0.0... ccc cee eee 8

EPA v. Brown, 431 U.S. 99 (1977). ....... ccc ccccccccece 6,7

Friends of the Earth v. EPA, 499 F.2d 1118

EE ET 21

Fry v. United States, 421 U.S. 542 (1975)... 0... ccc cece eee eee 7

Gravel v. United States, 408 U.S. 606 (1972)............006- 14

Harley-Davidson Motor Co. v. EPA, 598 F.2d 228

a 21

Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977). .......... 19

Hunt v. Washington Apple Advertising Commission,

cece ce cbeesvccsccces 2

Indiana and Michigan Electric Co. v. EPA, 509 F.2d 839

I 21

Kansas v. Colorado, 206 U.S. 46(1907)......... cc eee eee ee 13

-Vii-

Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974). ......... 18

Lane County v. Oregon, 74 U.S. (7 Wall.) 71 (1869). ....... 9,13

Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975),

vacated sub nom. EPA v. Brown, 431 U.S. 99

ogg aE Ning Setanke SA AAR aks eal 29 SE RL ee Aa 6, 8

Margand v. Wirtz, 392U.S. 16S (TSGB)... ic cece cc cscecces 6

McCoy-Elkhorn Coal Corp. v. EPA, 622 F.2d 260

Oe ore Ue ne Perio ee ius bua ee 21

Montgomery County v. Califano, 449 F. Supp. 1230

I no ge wa alan are 10

National League of Cities v. Usery, 426 U.S. 833

Ne Re ee Laer yeas oda 7, 8, 9, 13, 22

NRDC v. EPA, 483 F.2d 690 (8th Cir. 1973)............005. 21

NRDC v. EPA, 489 F.2d 390 (Sth Cir. 1974). ...........0005 21

Oklahoma v. Civil Service Commission, 330 U.S. 127

| ARIE SSS Spr eit ge cee ron St, Ray a 7, 10

Oregon v. Mitchell, 400 U.S. 112(1970)... 2... cee cee eee 8

Pacific Legal Foundation v. Costle, No. 80-828

(U.S., petition for cert. filed Nov. 22, 1980). .............. 6

Pennsylvania v. EPA, 500 F.2d 246 (3d Cir. 1974). ............ 6

Powell v. McCormack, 395 U.S. 486 (1969). ...........005- 13

Reuss v. Balles, 584 F.2d 461 (D.C. Cir. 1978),

Cate, Bem, SSP UD F8F IPT Oe civ voce cccccscever 19

Scripps-Howard Radio v. Federal Communications

CONE, SOO Wh. CREE: acdc ccc ccccncccescread 22

Sharon Steel Corp. v. EPA, 597 F.2d 337

I ga eM hd cL chs a ea ehEw RE 21

Sierra Club v. Adams, 578 F.2d 389

SU I seh ea we bree uls 22

Sierra Club v. Morton, 405 U.S. 727 (1972). ...... 0. cece eens 22

South Terminal Corp. v. EPA, 504 F.2d 646 (1st Cir. 1974)... .. 21

Steele v. Louisville & Nashville Ry., 323 U.S. 192

a soak aah SHE Let eee OP ETE n Ob ods k se 05a eel 13

Steward Machine Co. v. Davis, 301 U.S. 548 (1937). ....... 9,10

Stromberg v. California, 283 U.S. 359(1931)........... 00 eee 15

Tenney v. Brandhove, 341 U.S. 367(1951)......... 00 eee 14

United States v. Brewster, 408 U.S. 501 (1972). .........0000- 14

United States v. Butler, 297 U.S. 1(1936)...........00 0 eee 9,10

United States v. Carolene Products Co., 304 U.S. 144

ORR IRATE FS EIEE Uae ot PIBCiRgm eS Gp ager Sep Pa ra ng ee 12

United States v. Darby, 312 U.S. 100 (1941). ......... 00.0005. 7

United States v. Harriss, 347 U.S. 612 (1954). .........0.5. 14,15

-Vill-

United States v. Helstoski, 442 U.S. 477

Se i ae at ee as bt yuk kan aa 14

United States v. SCRAP, 412 U.S. 669 (1973). ..........0 eee 18

Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533

aera ea gd waged ee’ 8

Warth v. Seldin, 422 U.S. 490 (1975). 0... cc ccc cece cccecs 22

West Virginia State Board of Education v. Barnette,

en cc a akins . Gib ew ae ees cams wee-s 14

Constitution, Statutues and Regulations

Page

United States Constitution:

Article I, § 6 (Speech or Debate Clause)................. 14

Article 1, § 8 (Commerce Clause).............cccccccees 7

Article IV, § 4 (Guaranty Clause)................. 1,12, 15

Se 1,4, 14,15,22

es ceca been 1,4, 7, 8, 11, 13,22

Se os LN ess be baweanaceevces 22

ee, BOP, co boas ea cin scueecuecceec us en |

Ri GS Dg 2 10

Clean Air Act, 42 U.S.C. §§ 7401-7642 (Supp. I 1977):

BB oak 1,16

RS eek ll

Se ES RS sa a 16

I Ras BPN inca esc unccdeccaeescves |

ee RE ALAS ot es |) Se 16

ce Ee 6, 20

SONNE Fr 7, ik Pt, S POPs vc ces cccccs 1,2, 20, 21,22

NR aS ce ip ee 1,16

Colo. Rev. Stat. § 42-4-312(1)(c)(1973) (as amended

a a Dak we ae ee dae bens'en sees 18

Colo. Rev. Stat. § 42-4-313(4) (1973) (as amended

CN ee wee ead wanes wsuenes 18

Colo. Senate Bill 1, 1979 Colo. Sess. Laws 406. ...... 2,3, 18,19

ee OER, oon cena vecteccccccecccensert 17

Oe NR CRO oon cece cc ncs be revecncssccsuns |

oe 4

“ix.

Other Authorities

Page

Comment, The Federal Conditional Spending Power: A

Search for Limits, 70 Nw. U.L. Rev. 293, 303 (1975)..... 10

Kaden, Federalism in the Courts: Agenda for the 1980's, in

Advisory Commission on Intergovernmental Relations,

The Future of Federalism in the 1980's (to be published

| MMM a OE SE 13

Palmer, The Case for a Speech or Debate Privilege for State

Legislators in Federal Courts, 13 Valparaiso U.L. Rev. 501

fog RS OE ae 14

Ripple & Kenyon, State Sovereignty—A Polished But Slippery

Crown, 54 Notre Dame Lawyer 745, 759 (1979)....... 11

Stewart, Pyramids of Sacrifice? Problems of Federalism in

Mandating State Implementation of National Environ-

mental Policy, 86 Yale L.J. 1196, 1257 (1977).......... 10

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The petitioners, twenty-seven members of the Colorado

General Assembly, including the leadership of both the Democratic

and Republican parties, and Mountain States Legal Foundation on

behalf of its officers, members, and supporters, respectfully request

that a writ of certiorari issue to review the judgment of the Tenth

Circuit Court of Appeals entered in this proceeding.

OPINIONS BELOW

On petition for review of a final rulemaking action of the

Environmental Protection Agency, 44 Fed. Reg. 57401 (1979), the

Tenth Circuit Court of Appeals rendered a decision that is reported

at 630 F.2d 754 (1980). The court’s decisior. is included herein as

Appendix A; the EPA order appears herein as Appendix B.

JURISDICTION

The judgment of the Tenth Circuit Court of Appeals was

rendered on August 29, 1980. Petitioners’ timely Petition for

Rehearing and Suggestion for Rehearing En Banc was denied on

October 6, 1980. The order denying the petition is included herein

as Appendix C. The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1)(1976).

RELEVANT AUTHORITIES

The following authorities are relevant in resolving the issues of

this case: Section 307 of the Clean Air Act, 42 U.S.C. §7607 (Supp.

1 1977), was the basis for petitioners’ standing in the Tenth Circuit.

Petitioners have alleged violations of sections 110, 176, and 316 of

the Clean Air Act, 42 U.S.C. §§7410, 7506, 7616 (Supp. I 1977),

and of the United States Constitution, article IV, §4, and

amendments I, V, and X. Because these provisions are lengthy, the

pertinent text is appended hereto as Appendix D.

STATEMENT OF THE CASE

Jurisdiction of the Tenth Circuit Court of Appeals was predi-

cated on section 307 of the Clean Air Act, 42 U.S.C § 7607 (Supp. |

1977), which vests jurisdiction for review of EPA administrative

orders in the courts of appeals. See also Fed. R. App. P. 15.

This controversy stems from an EPA demand that the State of

Colorado change its automobile emission inspection and main-

tenance (I/M) legislation to meet certain EPA criteria, or face the

imposition of over $300 million in fund withholding sanctions and

an industrial construction moratorium. Petitioners presented

evidence that the threatened sanctions, amounting to approximate-

ly 15% of the state’s total budget, would cause a deprivation of vital

services, thousands of lost jobs, and disruption of the Colorado

economy.

Mountain States Legan Foundation’ and twenty-seven

members of the Colorado General Assembly, including both

Democratic and Republican leadership’, filed suit to challenge

EPA's demand for legislative action and its threats to impose massive

sanctions as unjustified interference with the government and

people of Colorado.

In the 1979 legislative session, the Colorado General Assembly

passed Senate Bill 1, which commissioned a study to compare two

alternate approaches to automobile emissions control. The Bill also

provided that if no subsequent action was taken by the legislature, a

program that was a hybrid of the two approaches would auto-

matically go into effect on January 1, 1981.

When Senate Bill 1 was passed, legislators believed that it would

be acceptable to EPA. See Appendix B at 40a. However, EPA's final

‘Mountain States Legal Foundation is a non-profit public interest law center,

dedicated to bringing before the courts those issues vital to the individual rights

and freedoms protected by the United States Constitution and the nation’s legal

traditions. The Foundation is supported entirely by the donations of its

members. In this lawsuit the Foundation represented its officers, members, and

supporters residing within the nonattainment areas wherein the EPA has

required that an I/M program be established, and also those residing in the

remainder of Colorado. Mountain States Legal Foundation has standing to

assert the interests of its members whose rights are affected by the EPA action.

Hunt v. Washington Apple Advertising Commission, 432 U.S. 333 (1977).

*This lawsuit does not concern the advantages or disadvantages of 1/M

programs. The legislators who are parties to this lawsuit represent all points of

view on the 1/M question.

rulemaking action challenged hereim required the legislature to

amend specific provisions of the Senate Bill 1 program or face the

imposition of severe sanctions. The EPA ruling was in the form of a

“conditional approval” of the relevant portions of the state imple-

mentation plan (SIP). Failure to pass complying legislation would

result in disapproval of the SIP and imposition of sanctions until

such time as the state should acquiesce.

The EPA order set specific deadlines and directives for state

executive and legislative action. For example, EPA demanded that

legislation be introduced by February 1, 1980, and that it be passed

by the legislature and signed by the Governor by March 1, 1980.

This crucial timetable is set forth in full in the Tenth Circuit's

opinion, as well as in the EPA rulemaking announcement. Appen-

dix A at 4a-Sa and Appendix B at 40a.

For failure to comply with this timetable, EPA's order

threatened to impose severe sanctions, which included withholding

$132 million in sewage facility construction grants, withholding

and unspecified amount (later set at over $165 million) of highway

construction and air pollution control grants, and banning new

industrial construction in Colorado's major cities. Appendix B at

43a-46a. The sanctions threatened were so severe as to portend

economic disruption for the state if they continued for a significant

period of time. See section Ill. A. infra. It is important to note that

the funds which EPA threatened to withhold were ot funds for the

establishment or operation of an |/M program. EPA threatened to

accelerate the im, vsition of sanctions should the state fall behind

schedule in passing legislation. Appendix B at 44a.

Petitioners’ filed the instant petition for review of the EPA

action in December 1979 in the court of appeals. The Colorado

Attorney General intervened a few weeks later. The Attorney

General sought primarily to have the court define the limits of

federal authority vis-a-vts the states without reference to the instant

conflict between the state and EPA.

The Attorney General did not strongly pursue tenth amend-

ment issues in its brief or oral arguments, but it did razse these issues.

The Attorney General's brief stated that applying sanctions because

legislative authority was not in place on March 1, 1980, if

reasonable progress was being made toward adoption of an I/M

*Mountain States Legal Foundation originally filed this suit as ex relutone

counsel for the State of Colorado. Following the intervention of the Colorado

Attorney General, petitioners did not actively pursue standing wm that capacity.

* 4

statute, “vould be an arbitrary exercise of the Adminsitrator’s

authority under the statute and also would be contrary to the tenth

amendment.” Brief of Intervenor at 8.

The day before EPA announced it would begin imposing

sanctions, the Tenth Circuit granted petitioners’ motion to stay the

imposition of sanctions until May 1, 1980, When the stay expired,

the Colorado Attorney General moved for an additional stay, but

this motion was denied on May 7, 1980. On that date, the

legislature passed new I/M legislation, which was subsequently

approved by EPA. Sanctions officially remained in effect against

Colorado from May 2 until July 16, 1980. 45 Fed. Reg. 47683

(1980).

1/M legislation passed the Colorado General Assembly only

narrowly, and many legislators stated in floor debates that they

voted for the legislation in its existing form only because the EPA

had blackmailed them into cooperation. The number of legislators

who voted for the I/M bill, yet stated they did so only because of

EPA's coercion, exceeded the “swing vote.” In short, the Colorado

General Assembly would not have passed EPA’s version of I/M

legislation without EPA coercion. Furthermore, bills have been pre-

filed for the 1981 session of the Colorado legislature which will

rescind or alter the 1980 I/M legislation.

The Tenth Circuit’s decision did not reach the merits of the

petitioners’ arguments; it noted only that Mountain States Legal

Foundation and the legislators had raised “a panoply of serious

constitutional and statutory contentions.” Appendix A at 27a. The

Tenth Circuit based its ruling upon a lack of standing to bring tenth

amendment and Clean Air Act arguments. The court did not accord

the petitioners standing as to their claims involving denial of their

own first amendment and other personal rights.

SUMMARY OF THE ARGUMENT

The petitioners, as legislators and citizens of Colorado, were

injured in fact by EPA action and were within the zone of interests

protected by the statutes and constitutional provisions involved

herein. The petitioners thus had standing to assert their rights,

particularly first amendment rights, and such standing was not

destroyed by the failure of the State of Colorado to strongly present

“L.e., the number of legislators who would have to change their votes in order

to reverse the final outcome of the vote.

sovereignty arguments.

Inherent in the Constitution is a federal form of government

that allows for maximum input by citizens and that establishes clear

lines of authority and accountability. Administrative actions that

unnecessarily disrupt this essential balance between the state and

national governments are invalid and, if provisions of the Clean Air

Act are interpreted to allow such actions, those provisions should be

declared unconstitutional.

The voices of citizens attempting to participate in the legislative

process were drowned out by the more powerful voice of the

national government, threatening imposition of sanctions if the

state failed to comply. Legislator-petitioners were forced to take

legislative positions different from what they would have chosen

absent EPA pressure. The rights of citizens and legislators were thus

violated by the EPA Administrator.

The uncertain nature of national/state relations demands

further clarification from this Court. Petitioners assert that the

court of appeals erred in denying petitioners, as citizens and

legislators, an opportunity to raise the constitutional issues that

directly affect them, and petitioners urge this Court to utilize EPA’s

egregious interference with state decisionmaking as a forum for

elucidating the issues of political accountability raised herein.

REASONS FOR GRANTING THE WRIT

I. E.PRA’s DEMAND THAT THE STATE LEGISLATURE

ENACT A NEW INSPECTION AND MAINTENANCE

PROGRAM OR FACE SEVERE SANCTIONS VIOLATED

THE CONSTITUTIONAL RIGHTS OF LEGISLATORS

AND CITIZENS.

The strength of the federal structure of the United States

government is of continuing importance to citizens. A national

government interference with state government affects, not just the

state as an abstract entity, but also the constitutional rights of

citizens and legislators. Resolution of the present conflict between

Colorado citizens and the EPA will have a significant impact on

EPA’s policy in Colorado and other states regarding Clean Air Act

implementation. However, it will have much more profound

impact in determining whether the constitutional rights of citizens

to a politically responsive government will be preserved.

The primary concern of petitioners in pursuing this litigation is

to ensure the survival of the federal form of government and of the

political accountability inherent in that form. Briefly, this case

illustrates that recent congressional attempts at “cooperative

federalism” are, in reality, “coercive federalism.” The state is left

with no realistic option but to acquiesce to EPA’s demands. The

federal agency controls the enactment and operation of a state

program, and consequently the state legislature’s constituents lose

their voice in state government. State elected officials are prevented

from performing their representational duties.

A. THe EPA ACTION DESTROYS THE CONSTITUTIONAL

BALANCE OF NATIONAL AND STATE POWERS.

This case is only one small part of a continuing major problem:

preserving the constitutional balance of powers between the

national and state governments. One of the primary areas of

conflict has been the “cooperative federalism” scheme created by the

Clean Air Act. The constitutionality of the EPA’s continuing

attempt to demand state legislation regarding automobile 1/M

programs was seriously questioned by three U.S. Circuit Courts of

Appeals in Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975), vacated

sub nom. EPA v. Brown, 431 U.S. 99 (1977); District of Columbia

v. Train, 521 F. 2d 971 (D.C. Cir. 1975), vacated sub nom. EPA v.

Brown, 431 U.S. 99 (1977); Brown v. EPA, 521 F.2d 827 (9th Cir.

1975), vacated, 431 U.S. 99 (1977), reinstated in part, 566 F.2d

665 (9th Cir. 1977). These cases were consolidated in the Supreme

Court decision in Brown v. EPA, supra.®

In each of the decisions reviewed by this Court, the court of

appeals struck down, as being in excess of statutory authority, EPA

regulations that directed state legislatures to establish an I/M

provram, but the courts further noted that grave constitutional

issues might be raised by the EPA interpretation of the Clean Air

Act. See 431 U.S. at 102. In particular, the courts noted that serious

*Two other cases addressing this point were also decided but did not reach the

Supreme Court for review: Pennsylvania v. EPA, S00 F.2d 246 (3rd Cir. 1974);

Alaska v. EPA, 521 F.2d 842 (9th Cir. 1975). Of the six circuit court decisions,

only Pennsylvania v. EPA held that the EPA had power to require establishment

of a state 1/M_ program. It relied heavily on the subsequently overruled

Muryland v. Wirtz, 392 U.S, 183 (1968), and thus the continuing validity of the

decision is suspect.

A petition for certiorari has been filed in this Court in the case of Pacific Legal

Foundation v. Costle, No, 80-828. Although the underlying issues of that

litigation resemble the instant case, the factual situation raised entirely different

procedural problems, Pacific Legal Foundation was filed pursuant to section 304

of the Clean Air Act, 42 U.S.C. § 7604 (Supp. 1 1977).

state sovereignty issues were presented by the Administrator's

actions. The EPA’s appeal from serveral circuit court decisions

holding the imposition of sanctions to be unconstitutional was

vacated as moot when the EPA Administrator conceded a lack of

authority to impose requirements on the state and therefore with-

drew his regulations. 431 U.S. at 103. Thus this Court has not yet

provided guidance for evaluating EPA’s authority to dictate

legislation to states.

A new analysis of constitutional principles is necessary because

of the change in circumstances created by the growth of the national

government during the past few decades. Never before could the

national government threaten such large cutbacks, on a percentage

basis, of a state’s budget. Only recently has the national government

acquired the power to pull strings on state government actions.

When the “balance” of power between the states and national

government was more than just a theoretical concept, the distortion

of the political process herein challenged could not have occurred. It

was rot possible for the federal government to force states to enact

legislation; states truly had “the simple expedient of not yielding.”

Oklahoma v. Civil Service Commission. 330 U.S. 127, 143 (1947).

From the time that the tenth amendment was introduced in the

first session of Congress to quell the states’ fears about surrendering

power to a central government, United States v. Darby, 312 U.S.

100, 124 (1941), the courts have grappled with the delineation of

state and national spheres of power. This controversy calls upon the

Court to make a major decision regarding the future relationship of

the national and state governments.

1. The concept of federalism embodied in the Con-

stitution prevents the national government from

interfering with sovereign state government

functions.

The most important recent judicial pronouncement regarding

state sovereignty is National League of Cities v. Usery, 426 U.S.

833 (1976). The Court set forth the basic rule that Congress may

not exercise its authority, even under the otherwise plenary

commerce power, in a manner that “impairs the States’ integrity or

their ability to function effectively in a federal system,” 426 U.S. at

843, quoting Fry v. United States, 421 U.S. 542, 547n.7 (1975).

An action which operates to “directly displace the States’ freedom to

structure integral operations in areas of traditional governmental

functions” is beyond the scope of congressional power. 426 U.S. at

852. The application of this rule is far from clear, and further

explanation by this Court is necessary.

An integral state function is an activity “essential to separate and

independent existence” of the state, Coyle v. Smith, 221 U.S. 559

(1911), quoted in National League of Cities, 426 U.S. at 845. In

Coyle, the activity at issue was the selection of a site for the state

capitol and in the National League of Cities, it was the determina-

tion of pay and working conditions of state employees. The activity

at issue here is state legislative decisionmaking.

There is no state government function as basic and essential to

the existence of a state as deliberative lawmaking by the state

legislature. This Court has recognized that the powers reserved to

the states by the tenth amendment include “the right to pass laws, to

give effect to laws through executive action, to administer justice

through the courts, and to employ all necessary agencies for

legitimate purposes of State government. ...” Veazie Bank v.

Fenno, 75 U.S. (8 Wall.) 533, 547 (1869). See also Oregon v.

Mitchell, 400 U.S. 112 (1970); Dunn v. Blumstein, 405 U.S. 330

(1972). In the challenge to the EPA requirement that the State of

Maryland enact an I/M program, the Fourth Circuit said, “[I]f

there is any attribute of sovereignty left to the states it is the right of

their legislatures to pass, or not to pass, laws.” Maryland v. EPA,

530 F.2d 215, 225 (4th Cir. 1975).

2. EPA’s action unconstitutionally coerces the state legislature

and thereby displaces state decistonmaking, in excess of

the commerce and spending powers.

National League of Cities, supra, analyzed state sovereignty as

limiting the commerce power. In contrast, this case presents a

combined exercise of the commerce power and the spending power.

Certain aspects of the Colorado situation raise the crucial issue of

congressional power to condition funding that was left unresolved

by National League of Cities, 426 U.S. at 852 n.17.

National League of Cities established the basic framework for

analysis of constitutionality under the commerce power. Essential-

ly, courts must determine whether the national government has

exercised its commerce power authority in a manner that

“displaces” state decisionmaking regarding an integral state govern-

ment function. 426 U.S. at 852. In the present case, the EPA is

attempting to interfere in one of the most essential state functions —

lawmaking — by imposing severe and unnecessary sanctions

against the states. The result is to shift decisionmaking from the

state to the national government and to destroy the state's

autonomy. The severity of EPA’s intrusion into state affairs violates

the basic constitutional principles of federalism.

The national government is constitutionally prohibited from

interfering with the “functions essential to separate and indepen-

dent existence” of the states, National League of Cities, 426 U.S. at

845, quoting Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76

(1869). The constitutional limitation was explicitly and clearly

stated in National League of Cities:

Congress may not exercise that power [i.e., the commerce

power] so as to force directly upon the States its choices as to

how essential decisions regarding the conduct of integral

governmental functions are to be made.

426 U.S. at 855. EPA’s coercion of the Colorado General Assembly

interferes with integral state government functions and thus exceeds

the commerce power under National League of Cities.

Although there is a need for further clarification of commerce

power analysis, there is a considerably more pressing need for

delineation of the spending power. Boundaries upon the use of the

national government’s spending power have never been clearly

established by this Court. The law is presently in a state of confusion

on this major issue, and it is submitted that the instant case presents

a valuable opportunity for clarification. Petitioners argue that EPA’s

action is just as certainly unconstitutional under spending power

analysis because the spending power is limited where it begins to

interfere with state sovereignty. See United States v. Butler, 297 U.S.

1 (1936).

To determine the constitutionality of conditions placed upon

federal funding, petitioners urge the Court to examine whether:

(1) The national government action interferes with an inte-

gral state government function. (The interference with state

lawmaking was discussed above).

(2) The spending power is exercised in a coercive manner.

Steward Machine Company v. Davis, 301 U.S. 548 (1937).

Steward Machine discussed the constitutionality of various

degrees of pressure brought to bear upon the states by the national

government. It established a distinction which is applicable here,

although Steward Machine presented a substantially different

factual situation. The primary consideration in assessing the consti-

tutionality of national government actions is whether those actions

are “weapons of coercion, destroying or impairing the autonomy of

the states.” 301 U.S. at 586. The Court further elucidated:

[T]he location of the point at which pressure turns into

compulsion, and ceases to be inducement, would be a ques-

tion of degree, — at times, perhaps, of fact.

301 U.S. at 590. Thus the relevant determination under Steward

Machine is whether the EPA’s action has gone beyond the bounds of

mere “inducement” and become “coercion.” For several reasons, the

petitioners urge that such coercion exists in the present situation

and that the coercion analysis would be an appropriate method for

testing national government authority.

The degree to which funds subject to withholding are related to

the compliance sought may be an important factor in determining

whether coercion exists. The often-reiterated reason for finding

that conditions placed on funding are not coercive is that the state

may simply choose not to participate in the offending program.

Oklahoma v. Civil Service Commission, 330 U.S. 127 (1947).

However, that option becomes illusory when the condition is

attached to a variety of major funding programs. See Stewart,

Pyramids of Sacrifice? Problems of Federalism in Mandating State

Implementation of National Environmertal Policy, 86 Yale L.J.

1196, 1257 (1977). A state may be willing to forego participation in

a particular program in order to avoid objectionable conditions, but

be unable to risk the loss of all federal funding. Here, for example,

the state had no realistic choice but to give in to EPA demands. An

unrestricted power “to condition the expenditure of an appropria-

tion would tend to nullify all constitutional limitations upon legis-

lative power.” United States v. Butler, 297 U.S. at 74.

When the federal government threatens a state with economic

crisis, its demands must surely be seen as coercive. Comment, The

Federal Conditional Spending Power: A Search for Limits, 70 Nw.

U.L. Rev. 293, 303 (1975). The states’ overwhelming dependence

on federal funds makes federal coercion a serious concern because

“economic pressure may threaten such havoc to a state’s well being

as to cause the federal legislation to cross the line which divides

inducement from coercion. . . .” Montgomery County v. Califano,

449 F. Supp. 1230, 1247 (D. Md. 1978).

Furthermore, other consequential effects on the state must be

considered. For example, the withholding of sewage treatment

grants could cause the subdivisions of the state to violate the Federal

Water Pollution Control Act and to incur penalties under 33 U.S.C

§ 1319 (Supp. I 1977).

If conditions placed on funding are confined to those which

ensure proper expenditure of the federal funds, the danger of misuse

of the national government's dominant position is not as great. But

the EPA conditions, including passage of I/M legislation, did not

apply to administration of the spending programs; the EPA instead

used the offer of national government funds in one area “to force

surrender of tenth amendment autonomy in another.” Ripple &

Kenton, State Sovereignty — A Polished But Slippery Crown, 54

Notre Dame Lawyer 745, 759 (1979).

Review by this Court is necessary to provide guidance to

Congress and the states about when conditions on funding become

an unconstitutional intrusion into state sovereignty.

3. Preemption is the only constitutional way for the

national government to regulate in the absence of

state cooperation.

The supremacy clause does not provide any authority for the

national government to pursue its current course of action through

the EPA. Instead, it provides one constitutionally permissible means

for the national government to accomplish its objectives — through

the mechanism of preemption. The national government may

prevent the states from regulating a field; it may not conscript state

authority to regulate that field in a manner dictated by Congress.

See District of Columbia v. Train, 521 F.2d 971 (D.C Cir. 1975).

The Clean Air Act, section 110(c), 42 U.S.C. § 7410(c) gives the

EPA Administrator authority to promulgate a federal plan if the

state does not enact a satisfactory SIP. This means of regulating is

constitutionally preferred over making the states into “puppets of a

ventriloquist Congress.” Brown v. EPA, 521 F.2d 827, 839 (9th Cir.

1975).

Establishment of a federal 1/M program in Colorado would be

merely physically intrusive, in the same negligible manner that

existence of the federally operated Post Office is intrusive. In

contrast, the EPA tactic of establishing an I/ M program by coercing

the state into passing legislation funding its own program distorts

the state decisionmaking process and destroys the federal system.

EPA should not be allowed to utilize a means that intrudes upon

constitutional structures and freedoms when a much less intrusive

and less restrictive means is available.

The foregoing brief analysis of state sovereignty reveals that the

instant case presents a compelling factual situation — where an

interference with state decisionmaking actually occurred because of

national government coercion — and also presents legal issues with

immense future ramifications. The true urgency of the state

sovereignty analysis does not arise, however, from the national

government actions’ impact upon the state per se, but rather from

the impact on citizens and officials of the affected state. The

following section analyzes the constitutional deprivations which

have occurred as a result of the EPA’s usurpation of state decision-

makion analyzes the constitutional deprivations which have

occurred as a result of the EPA’s usurpation of state decisionmaking.

B. THE EPA ACTION DESTROYS THE PROCESS OF POLITICAL

ACCOUNTABILITY THAT IS CRUCIAL TO CONSTITUTIONAL

GOVERNMENT.

A basic component of the American constitutional system is the

accountability of government (o the people. A representative form

of government anticipates that citizens can voice their views to

elected officials and those officials can then act to meet the needs of

their constituents. This structure of political accountability was

incorporated into the Constitution through, inter alia, the

guarantee of a republican form of government in article IV, section

4, the freedom of speech, and the citizens’ right to petition the

government. An essential structural safeguard of political account-

ability is the division of power and responsibilities between the state

and national governments, each of which is a representative

government and each of which must therefore be accountable to the

electorate.

The EPA action distorts this essential political structure by

forcing the Colorado General Assembly to sign its name to legisla-

tion mandated by the federal agency. The EPA has essentially tried

to get its own program enacted while avoiding political reprisals if

the program is ineffective or burdensome and while forcing the state

to fund the program.

If the program proves unworkable, to whom do citizens turn for

redress? Not to the legislature — revocation of the 1/M law would

presumably evoke the same sanctions, and thus the legislature could

not act. Not to the EPA — the program in question is a matter of

state law. Thus the citizens are denied effective recourse. See United

States v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 (1938),

suggesting that “legislation which restricts those political processes

which can ordinarily be expected to bring about repeal of undesir-

able legislation, is to be subjected to more exacting judicial

scrutiny.”

The right of citizens to a politically accountable government —

i.e., agovernment that can respond to the electorate or be voted out

of office — is basic to this nation’s constitutional structure. A recent

article by Professor Lewis B. Kaden summarizes the reasons that a

federal form of government is desirable: (1) It increases oppor-

tunities for public communication with officials. (“Proximity

increases accountability by increasing access.”) (2) It promotes

variety in political choice by allowing cultural differences to find

expression in different places. (3) It permits the states to serve as

laboratories for experimentation. Beyond these factors, Kaden

found that “the case for a federal form rests most fundamentally on

the capacity of a federal system to enhance and protect individual

liberty.” Kaden, Federalism in the Courts: Agenda for the 1980's, in

Advisory Commission on Intergovernmental Relations, The Future

of Federalism in the 1980's (to be published 1981).

The tenth amendment is not the only Constitutionai basis for

the federal structure of government. In Kansas v. Colorado, 206

U.S. 46, 81 (1907), this Court emphasized that the national govern-

ment’s role as exercising just enumerated powers “appears from the

Constitution, independently of the Amendments.” This point was

also made in Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76

(1869), quoted in National League of Cities, 426 U.S. at 844,

where the Court noted that “in many articles of the Constitution the

necessary existence of the states, and within their proper spheres,

the independent authority of the states, is distinctly recognized.”

One part of the Constitutional structure of political account-

ability is the right and responsibility of legislators to speak freely.

The elected representatives of the people are charged with faithfully

fulfilling their obligation to their constitutents based upon their own

best judgment and the expressed wishes of the people. “It is a

principle of general application that the exercise of a granted power

to act in behalf of others involves the assumption toward them of a

duty to exercise the power in their interest and behalf.” Steele v.

Louisville & Nashville Ry., 323 U.S. 192, 202 (1944). To perform

this obligation to represent constituents, it is necessary that legisla-

tors be protected from external pressures that would override the

electorat-’s concerns. Powell v. McCormack, 395 U.S. 486, 503

(1969), quotes the writings of James Wilson:

In order to enable and encourage a representative of the public

to discharge his public trust with firmness and success, it is

indispensably necessary, that he should enjoy the fullest liberty

of speech, and that he should be protected from the resent-

ment of every one, however powerful, to whom the exercise of

that liberty may occasion offence.

See also, United States v. Harriss, 347 U.S. 612 (1954),

A legislator’s freedom of speech is hampered by fear of reprisal

to his constituents should he choose to speak and vote freely. Such

forced compliance is antithetical to the first amendment. This Court

eloquently stated the proposition in West Virginia State Board of

Education v. Barnette, 319 US. 624, 641 (1943):

We set up government by consent of the governed, and the Bill

of Rights denies those in power any legal opportunity to

coerce that consent. Authority here is to be controlled by

public opinion, not public opinion by authority.

Another constitutional provision illustrating the need for legis-

lative independence is the speech or debate clause, U.S.Const. art. 1,

§ 6. This Court noted in United States v. Brewster, 408 U.S. 501,

507 (1972), that the purpose of the clause was “to protect the

integrity of the legislative process by insuring the independence of

individual legislators.” See also United States v. Helstoski, 442 U.S.

477, 492 (1979). This independence includes freedom from control

by other segments of the government. Gravel v. United States, 408

U.S. 606, 618 (1972). Although the speech or debate clause does

not, by its terms, apply to state legislators, a similar immunity for

them has often been recognized, based on the same underlying

principles. See Tenney v. Brandhove, 341 U.S. 367 (1951); Palmer,

The Case for a Speech or Debate Privilege for State Legislators in

Federal Courts, 13 Valparaiso U.L. Rev. 501 (1979),

EPA imposed strict deadlines for legislative action in its order,

and it provided that the imposition of sanctions would be acceler-

ated if the state fell behind schedule. Appendix B at 44a. Limiting

the time for legislative debate had a chilling effect on freedom of

expression by the legislators and restricted input by citizens.

These restrictions on legislative action, i.e., violiating the first

amendment rights of legislators by limiting debate, forcing them to

vote according to EPA’s dictates under threat of harm to their

constituents, and disturbing the independence of state legislators

envisioned by the Constitution, are unnecessary infringements on

the political rights of legislators in their representative capacities.

The political rights of citizens were also seriously infringed by

the EPA action. An essential feature of American government is the

notion that elected officials are ultimately responsible to the people.

From the citizens’ point of view, the foremost constitutional

embodiment of the right to participate in governmental decision-

making is the right to petition the government for redress of

grievances. The right also flows from the first amendment freedom

of expression. Both of these rights are based upon the need for

citizen input into the marketplace of ideas in order to maintain a free

society. Stromberg v. California, 283 U.S. 359 (1931); Bond v.

Floyd, 385 U.S. 116 (1966).

Affidavits in the Tenth Circuit record reveal that citizens

represented by Mountain States Legal Foundation were told their

lobbying and petitioning efforts regarding I/M legislation were

futile because legislators had to vote in accordance with federal

dictates. These citizens were denied their rights because EPA had

rendered the state legislative process unable to respond to

constituents,

The same structure of government requiring citizen input is also

reflected in the guarantee of a republican form of government.®

Such representation is impossible when the voices of the electorate

are drowned out by the voice of a more powerful entity such as a

federal agency. The state legislature is not free to exercise its

perception of the will of the people, and thus its operations are no

longer republican in nature. See Duncan v. McCall, 139 U.S. 449,

461 (1891).

The citizens and legislators of Colorado were deprived of their

political rights when the EPA short-circuited the traditional political

process and extorted compliance from the state legislature. Review

by this Court is urgently necessary to protect these political rights in

the context of national government coercion.

li. THE E.PR.A. ADMINISTRATOR'S ACTIONS EXCEEDED

HIS AUTHORITY UNDER THE CLEAN AIR ACT,

In addition to the constitutional infirmities identified above, the

petitioners allege that EPA’s threats and subsequent imposition of

sanctions violated the Clean Air Act in four respects: (1) Many EPA

duties under the Act (including federal promulgation of a plan) are

triggered by disapproval of a state plan, and thus it is crucial to the

*The petitioners seek to utilize the guaranty clause, not as an independent

cause of action, but as an indication that the structure of the Constitution

requires that state governments represent the state's electorate. See, United States

v. Harriss, 347 U.S, 612 (1945) (employing “the American ideal of government

by elected representatives” as a standard for evaluating first amendment claims).

A political question is not raised in this instance, See Baker v. Carr, 369 U.S, 186

(1962).

statutory structure that EPA either approve or disapprove a state

plan (or portions thereof). EPA’s attempt to “conditionally approve”

the Colorado SIP disguises a failure to perform statutory duties.

Furhtermore, EPA used the device of conditional approval as an

additional mechanism for placing coercive pressure on the state

legislature and thereby upsetting the statutory balance between

national and state authority. (2) The EPA has no authority to

impose a ban on industrial construction, Sections 110 and 172 of the

Act, 42 U.S.C. §§ 7410(a)(2)(1) and 7502(a)(1) (Supp. | 1977),

discuss stationary source bans only as provisions of state plans and

do not grant the EPA administrative power to impose a ban absent

enabling authority in the SIP. (3) Withholding of highway funds

under section 176(a) of the Act, 42 U.S.C. § 7506(a) (Supp. |

1977), is appropriate only when a state has not submitted a SIP. The

statute does not contemplate using the severe sanction of withhold-

ing highway funds for altering a minor aspect of an otherwise

satisfactory plan. (4) Similarly, the Administrator withheld sewage

facility construction grants under circumstances not contemplated

by section 316 of the Act, 42 U.S.C. § 7616 (Supp. 11977). There is

no blanket authority for the EPA to withhold sewage treatment

funds based upon an aspect of the SIP unrelated to sewage treat-

ment facilities and to the increased mobile and stationary source

pollution resulting directly from new facilities.

Because the Clean Air Act divided responsibility between

national and state governments, any action taken by the Adminis-

trator to expand federal control must be affirmatively set forth in

the statute. Connecticut Light & Power Co, v. FPC, 324 U.S. 51S

(1945). The Administrator's actions exceeded the bounds of the

national government role contemplated by the Clean Air Act. The

Administrator has not met the burden of showing clear congres-

sional authorization for his actions that interfere with state

autonomy.

lil. THE COURT OF APPEALS ERRED IN DENYING

PETITIONERS STANDING TO ASSERT THEIR RIGHTS

UNDER THE CONSTITUTION AND THE CLEAN AIR

ACT.

A. AS A RESULT OF THE EPA ACTION, PETITIONERS HAVE

SUFFERED INJURY IN FACT IN THE FORM OF ECONOMIC

HARM AND DEPRIVATION OF THEIR CONSTITUTIONAL

RIGHTS.

Petitioners have shown injury to their economic interests and

constitutional rights, and have also based their claim of standing on

the fact that they were directly regulated by the EPA action. They

have alleged the type of interests sought to be protected by the Clean

Air Act and by the constitutional provisions guaranteeing free

speech, the right to petition the government, and a representative,

federal form of government. The legislators and citizens herein have

standing under the test established in Association of Data Process-

ing Services Organizations, Inc. v. Camp, 397 U.S. 150 (1970),

which requires a showing of: (1) Injury in fact and (2) an interest

“arguably within the zone of interests to be protected or regulated

by the statute or constitutional guarantee in question.” 397 U.S. at

153.

From an economic standpoint, the record reveals that the

economy of Colorado would be injured by long-term withholding

of funds resulting in lost jobs and income.’ Citizens would be

deprived of essential services. The continued unavailability of

sewage treatment facilities could halt construction of new homes in

part of the affected region and could adversely affect water quality.

Affidavit of Ira Hardin, Motion for Expedited Review and Stay

Pending Review, Exhibit E. The ban on new stationary sources

would prevent construction of major industrial facilities within the

nonattainment area (and even some facilities outside the nonattain-

ment area, 44 Fed. Reg. 37679), thus hindering Colorado's

economic development.

The evidence presented to the Tenth Circuit revealed injury to

the members of Mountain States Legal Foundation not merely

because of public expenditures in the ordinary sense, but also

because each automobile owner would be required to pay an

"One year of EPA sanctions was estimated to result in a loss of 25,000 jobs.

Affidavit of Jay R. Lower, Motion for Expedited Review and Stay Pending

Review, Exhibit C.

inspection fee of $10.00 and additional amounts up to $100.00 for

repairs necessary to bring vehicles into compliance.’ This manda-

tory fee for 1/M constitutes a personal stake in the outcome of the

litigation.

Of course, economic injury is not the only kind of injury that

can support standing. Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S 252 (1977); United States v. SCRAP,

412 U.S. 669 (1973). Serious violations of the constitutional rights

of citizens and legislators have taken place as a result of the EPA

action. Colorado legislators were specifically required to take

action under the challenged EPA order. The order required that

legislation be introduced and passed, that it contain specific

provisions, that it amend aspects of prior legislation, and that the

legislature act within a specified time frame. Appendix-B at 40a.

Obviously, this requirement has a strong impact upon individual

legislators, particularly the legislative leadership, who were all

petitioners in the instant litigation.

The legislator-petitioners have standing to challenge the EPA

action because it directly affects their activities as legislators. Under

the analysis adopted by the District of Columbia Court of Appeals

in Kennedy v. Sampson, S11 F.2d 430 (D.C. Cir. 1974), relying on

Coleman v. Miller, 307 U.S. 433 (1939), a legislator’s interest in

protecting the effectiveness of his vote can be the basis for showing

injury in fact. The court stated that “[n]o more essential interest

could be asserted by a legislator” than vindicating the effectiveness

of his vote. 511 F.2d at 436. In Coleman, supra, this Court found

that state legislators had standing as aggrieved parties to challenge

the procedure used in voting cn a constitutional amendment. The

Court noted that the standing of public officials was not dependent

upon any showing of “private damage.” 307 U.S. at 445. Standing

of legislators must be premised upon some damage to them as

*The estimated costs of $22.00 - $29.00 per car, based on the study commis-

sioned by Colorado Senate Bill 1, were presented in the Reply Brief of

Petitioners, Exhibit E. The fact that all proposed I/M legislation required

payment of inspection fees by automobile owners was also presented by peti-

tioners. Reply Brief of Petitioners 4. The I/M legislation as passed requires

payment of an inspection fee of $10.00 per automobile. Colo. Rev. Stat. §

42-4-313(4)(a) and (b)(1973)(as amended by Senate Bill 52) provides that a

licensed station shall charge a fee for performing adjustments required for

issuance of a certification of emissions adjustment not to exceed $15.00. Model

year 1981 or later automobiles may be required to expend up to $100.00 for

repairs. Colo. Rev. Stat. § 42-4-312(1)(c)(1973)(as amended by Senate Bill 52).

legislators. Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977);

Reuss v. Balles, 584 F.2d 461 (D.C. Cir. 1978), cert. denied 439

U.S. 997 (1978). Such a showing has been made in this case.

The petitioners were injured by a direct interference with the

legislative process. The entire purpose of EPA’s threats to impose

sanctions and subsequent actual imposition of sanctions was to

force the passage of EPA-dictated legislation. The record contains a

transcript of Colorado General Assembly debates with numerous

statements by legislators that they were voting for the conference

version of the I/M legislation only because of the EPA “blackmail.”

It is apparent from the record that EPA’s form of I/M legislation

would not have passed the Colorado legislature without imposition

of sanctions. The legislators also expressed a desire to amend the

legislation if EPA’s ability to reimpose sanctions were halted, and

amendment efforts appear likely to occur despite the risk of

sanctions. Clearly, an actual and continuing interference with the

Colorado legislative process has taken place, and petitioners have

been injured in their capacity as legislators. Thus the legislator-

petitioners have proper standing.

As discussed more fully in section I.B., supra, the deadlines

imposed by EPA limited the time for legislative debate, thereby

abridging the freedom of speech of legislators and limiting the

citizens’ right to petition the government.’ The threat that sanctions

would be imposed if legislators failed to follow EPA’s dictates in

enacting legislation had a chilling effect on legislative debate. Such a

chilling effect also occurred through the utilization of federal

government power to drown out the voices of the citizens.

*Colo. Senate Bill 1 § 3, 1979, Colo. Sess. Laws 406, amending Colo. Revised

Statutes 1973 to add § 42-4-306.5(5), was interpreted by EPA and the court of

appeals to establish March 1, 1980, as a “self-imposed” deadline for legislative

action. Appendix at Sa. This assertion misapprehends the import of the

inclusion of the March | date in Senate Bill 1. Merely labelling the deadline as

“self-imposed” does not resolve the crucial problems of EPA interference with

state decisionmaking. The March 1, 1980, target date for future legislative

action was selected “so that not less than ten months be available for the

implementation of said sections [i.e., the implementation of an |/M program].”

Senate Bill 1, § 3, 1979 Colo. Sess. Laws 406. The date had relevance only as an

attempt to allow sufficient lead time for implementation of the program. It

should be noted that the I/M program established under EPA's directives delayed

the implementation one year until January 1, 1982. Obviously, the delay in the

implementation date destroyed any necessity to begin work on implementation

by March 1, 1980.

The Court’s opinion is dangerously overbroad in stating that it is

the exclusive power of the Attorney General to represent the state in

all matters of public interest. The Court pronounces a rule that the

Attorney General “is the exclusive legal representative of the state in

all litigation with regard to matters of public interest, and he alone

has the right to represent the state as to litigation involving a subject

matter of statewide interest.” Appendix A at 28a (emphasis added).

This pronouncement ignores statutory restrictions on the Colorado

Attorney General’s power and it fails to consider situations where

individual rights might be integrally involved with matters of

“public interest.” Such a pronouncement precludes challenges to

EPA actions by environmental groups because such issues would be

of “statewide interest.” The Court's pronouncement contains no

limitation of the Attorney General’s authority to matters of

governmental interests, and thus may seriously infringe the right to

vindicate individual claims and injuries.

The Tenth Circuit's ruling ignored the personal rights raised by

petitioners. This Court should exercise its review power to prevent

such a deprivation of rights and undue denial of a judicial hearing.

B. PETITIONERS HAVE STANDING AS AGGRIEVED PARTIES TO

SEEK JUDICIAL REVIEW UNDER SECTION 307 OF THE CLEAN

Air ACT.

The Clean Air Act contains two provisions for judicial review of

EPA actions. Section 304, 42 U.S.C. § 7604 (Supp. 1 1977), allows

citizens, without any particular showing of injury, to challenge EPA

failures to perform nondiscretionary duties. Similarly, Congress

structured broad review of final agency action under section 307 of

the Act, 42 U.S.C. § 7607 (Supp. I 1977). The first issue here is

whether the congressional grant of standing is, as the Tenth Circuit

ruled, limited to the State of Colorado itself to challenge an EPA

ruling on the state implementation plan or whether citizens and

legislators have standing. Secondly, even if the Tenth Circuit's

reading of the Act to imply an “aggrieved party” showing is valid,

the issue is presented whether the lower court erred as a matter of

law by refusing to acknowledge that the EPA’s demand for action by

the legislature gave them standing as aggrieved parties.

The Tenth Circuit's opinion characterizes the State of Colorado

as “the real party in interest” for purposes of challenging EPA action

on the state implementation plan. Appendix A at 27a. Such a

holding is entirely contrary to the long line of cases decided under

the Clean Air Act. Environmental interests and regulated industries

have consistently been accorded standing to challenge SIPs. See,

e.g., Indiana and Michigan Electric Co. v. EPA, 509 F.2d 839 (7th

Cir. 1975); Harley-Davidson Motor Co. v. EPA, 598 F.2d 228

(D.C. Cir. 1979), and Sharon Steel Corp. v. EPA, 597 F.2d 377 (3rd

Cir. 1979), allowing those within the zone of interests sought to be

regulated by a statute to have equal standing with those within the

zone of interests sought to be protected by a statute. The legislators

are members of a body directly subject to the EPA’s regulatory

action, in the form of deadlines for introduction and passage of

legislation.

Section 307 has provided a legitimate vehicle for many lawsuits

filed by environmental groups for review of EPA actions, and their

standing has been unchallenged. See, e.g., Citizens to Save Spencer

County v. EPA, 600 F.2d 844 (D.C. Cir. 1979); ASARCO, Inc. v.

EPA, 578 F.2d 319 (D.C. Cir. 1978); Friends of the Earth v. EPA,

499 F.2d 1118 (2d Cir. 1974); NRDC v. EPA, 489 F.2d 390 (Sth Cir.

1974); NRDC v. EPA, 483 F.2d 690 (8th Cir. 1973). Even more

expansively, actions have been maintained by entities only indirectly

affected by the Clean Air Act. See, e.g., McCoy-Elkhorn Coal

Corp. v. EPA, 622 F.2d 260 (6th Cir. 1980) (coal company had

standing to challenge a portion of Clean Air Act as unconstitutional

because it diminished the Company’s market); South Terminal

Corp. v. EPA, 504 F.2d 646 (1st Cir. 1974) (various oil companies,

retailers, and parking companies brought suit to challenge regional

air quality transportation control plan which limited the number of

parking spaces in the city of Boston).

Since EPA actions on SIPs, including the Colorado plan, often

contain provisions affecting the interests of specific individuals or

groups, it would be unfair to limit standing to the state. “The state”

is an amorphous entity without the sensitivity to violation of

individual rights that would be afforded by allowing the affected

individuals to sue. American jurisprudence is based upon litigation

of rights by affected individuals; it has not often set up governmen-

tal entities as the sole defenders of rights and rendered individuals

entirely unable to litigate their claims. Certainly this approach

would not be satisfactory where, as in the Clean Air Act, Congress

has specifically encouraged public input.

To limit standing to challenge EPA actions on SIPs to state

goverments would prevent suits raising purely environmental

concerns as well as those raising other constitutional and statutory

infractions. The Tenth Circuit's decision, as applied to this case,

effectively renders standing under section 307 of the Clean Air Act

(which contains no language restricting standing) more restricted

than standing under the Administrative Procedure Act (which

permits review by a person “adversely affected or aggrieved”). 5

U.S.C. § 702 (1976).

C. PETITIONERS HAVE SHOWN STANDING TO ASSERT VIOLA-

TIONS OF THEIR CONSTITUTIONAL RIGHTS AND THUS MAY

ADDRESS ALL ISSUES PROPERLY BEFORE THE COURT.

As demonstrated by the preceding sections, petitioners have

sustained injury in fact as a result of the EPA’s actions. They have

shown that their interests lie within the scope of the constitutional

guarantees discussed herein and that their regulation by the EPA

under authority of the Clean Air Act brings them within the scope of

interests protected under the Act. Petitioners are entitled to pursue

these interests in the courts.

This Court has not clearly decided the issue of standing to

challenge tenth amendment violations. The question was specifi-

cally left open in National League of Cities v. Usery, 426 U.S. 833,

836n.7 (1976). The issue of state sovereignty was properly an issue

in this litigation, and was fully briefed in an adversary manner by all

petitioners. Although the Colorado Attorney General did not

forcefully argue for protection of state sovereignty, the issue was

raised and a tenth amendment violation was asserted by the

Attorney General. Mountain States Legal Foundation and the

legislators did not exceed their role in this litigation by arguing that

the EPA had infringed upon the powers reserved to the states under

the tenth amendment. As explained earlier, these parties established

standing under section 307 of the Clean Air Act, and thereby are

able to assert the broader public issues. This Court stated the basic

rule in Sierra Club v. Morton, 405 U.S. 727, 737 (1972):

[T]he fact of economic injury is what gives a person standing

to seek judicial review under the statute, but once review is

properly invoked, that person may argue the public interest in

support of his claim that the agency has failed to comply with

its statutory mandate.

Accord, Warth v. Seldin, 422 U.S. 490, 501 (1975); Scripps-

Howard Radio v. Federal Communications Commission, 316 U.S.

4, 14-15 (1942); Sierra Club v. Adams, 578 F.2d 389 (D.C. Cir.

1978).

Whether or not petitioners are accorded standing to argue

violations of state sovereignty, the Tenth Circuit committed a

serious error by failing to accord petitioners standing to protect

their first amendment and other personal constitutional rights.

CONCLUSION

For the above reasons, petitioners submit that the Tenth Circuit

erred in its determination that petitioners, as legislators and citizens

of Colorado whose rights were violated, lacked standing to assert

the statutory and constitutional infirmities of the EPA action. A

multiplicity of constitutional rights of Colorado legislators and

citizens have been violated by the EPA and, if the Clean Air Act is

interpreted to authorize the EPA’s actions, the Act should be

declared unconstitutional. Vital issues about the future of federal-

ism in America are presented by petitioners, and the EPA actions

herein present a uniquely egregious violation of the principles of

federalism. The balancing of powers necessary for a continuation of

the federal system requires guidance from this Court.

Petitioners urge this Court to issue a writ of certiorari to reverse

the Tenth Circuit's denial of standing and to resolve the merits of this

lawsuit.

Respectfully submitted,

MOUNTAIN STATES LEGAL FOUNDATION

James G. Watt

Gale A. Norton

1200 Lincoln Street, Suite 600

Denver, Colorado 80203

(303) 861-0244

Attorneys for the Petitioners

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MOounNTAIN STATES LEGAL FOUNDATION,

et al.,

Petitioners,

v. No. 79-2261

DouG-tas M. CosTLe, et al.,

Respondents.

STATE OF COLORADO ex rel.

J. D. MACFARLANE,

Petitioner-Intervenor.

ON PETITION To REviEW ACTION OF THE

ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY

[AuGusT 29, 1980]

James G. Watt and Gale A. Norton, Mountain States Legal

Foundation, Denver, Colorado (James W. Sanderson of Saunders,

Snyder, Ross & Dickson, Denver, Colorado, with them on the

brief), for Petitioner.

Donald W. Stever, Jr., Attorney, Department of Justice,

Washington, D.C. (James W. Moorman, Assistant Attorney

General, and Angus Macbeth, Deputy Assistant Attorney General,

Washington, D.C., Barbara H. Brandon, Kenneth A. Reich and

Jose Allen, Attorneys, Department of Justice, Washington, D.C.,

with him on the brief) (Michele Beigel Corash, General Counsel,

and Bruce Diamond, James N. Cahan and Eric Smith, Attorneys,

Environmental Protection Agency, Washington, D.C., Christine

Shaver, Attorney, Environmental Protection Agency, Denver,

Colorado, of Counsel), for Respondents.

Janice L. Burnett, Assistant Attorney General, Natural Resources

Section, the State of Colorado (J. D. MacFarlane, Attorney

General, Richard F. Hennessey, Deputy Attorney General, Mary J.

Mullarkey, Solicitor General, and Lawrence A. DeClaire, Assistant

Attorney General, Natural Resources Section, the State of

Colorado, with her on the brief), Denver, Colorado, for Intervenor.

Jackson B.-Battle, Robert J. Golten and Robert F. Wiggington,

Boulder, Colorado, filed an amicus curiae brief for National Wild-

life Federation.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Mountain States Legal Foundation, hereinafter referred to as

Mountain States’, twenty-seven (27) named members of the Senate

and House of Representatives of the State of Colorado in their

respective official capacities as individually elected legislators of the

State of Colorado, and the State of Colorado ex. rel. Mountain

States, hereinafter jointly referred to as Mountain States, et al., or

petitioners, filed a petition for review challenging the constitutional

and statutory authorization of a final rulemaking decision of the

federal Environmental Protection Agency (EPA) conditionally

approving portions of the Colorado air quality control implementa-

tion plan. The petition, dated December 4, 1979, was filed

pursuant to the Clean Air Act, 42 U.S.C. §§ 7401 et seg. and rule 15

of Fed. R. App. Proc., 28 U.S.C.A. The State of Colorado, ex rel. J.

D. McFarlane, Attorney General, intervened.

BACKGROUND

Section 307(b)(1) of the Clean Air Act, 42 U.S.C. § 7607(b)(1),

involves a complex web of exclusive jurisdiction governing review

of various actions of the Administrator of EPA. Decisions handed

down prior and subsequent to the 1977 amendments to the Act

make it clear that exclusive jurisdiction for review of regulations or

actions of the Administrator of EPA vests in the courts of appeals.

Anaconda Company v. Ruckelshaus, 482 F.2d 1301 (10th Cir.

1973); U. S. Steel Corp. v. U. S. Environmental Protection Agency,

595 F.2d 207 (Sth Cir. 1979); Lubrizol Corp. v. Train, 547 F.2d

310 (6th Cir. 1976).

The Clean Air Act creates a complicated statutory framework.

The responsibility for plans to clean up the air is divided between

the federal and state governments. The Act requires the EPA

Administrator to establish ambient air quality standards for various

pollutants. 42 U.S.C. § 7409. Each state governor is then required

to submit a state implementation plan (SIP) designed to accomplish

these standards. 42 U.S.C. § 7410. The EPA Administrator there-

after either approves or disapproves the SIP. 42 U.S.C. §

7410(a)(2)(A) through (K). Thus, the Congress clearly intended the

final decision to be that of the EPA. See 42 U.S.C. §§ 1857(a)(2)(b),

1857c-5, 1857c-6; 42 U.S.C. §§ 7410(a)(2)(1); 7413(a)(5S);

7502(a)(1). See also: 42 U.S.C. § 7411(d)(1)(2), (A) and (B);

7412(d), (1) and (2).

If a state fails to promulgate an acceptable plan, the Act requires

that the EPA Administrator formulate and promulgate a federal

plan for the governing area. 42 U.S.C. § 7410(c). The 1972

Colorado SIP submitted by the Governor met the approval of the

EPA Administrator. 40 C.F.R. § 52.320, et seg. However, the 1972

Colorado SIP was required to be revised by virtue of 1977 amend-

ments to the Act dealing with “nonattainment areas”, i.e., air

quality control regions that fail to meet air quality standards. 42

U.S.C. §§ 7501-7508. States with “nonattainment areas”, such as

Colorado, were required to submit revised SIPs by January 1, 1979,

further, if a state appeared to be unable to meet air quality control

standards by December 31, 1982, an additional requirement is

imposed by the Act: The implementation of an automobile

emission inspection and maintenance (I/M) program. 42 U.S.C. §

7502(b)(11)(B). In the event of a state's failure to comply, the EPA

contends it is empowered to ban new construction in nonattain-

ment areas pursuant to 42 U.S.C. § 7410(a)(2)(1), and to withhold

federal grants pursuant to 42 U.S.C. §§ 7506(a) and 7616(b).

The EPA’s Final Rulemaking on Approval of the Colorado SIP,

44 Fed. Reg. 57401 (October 5, 1979), amended 40 C.F.R. part 52,

so as to approve in part the revised Colorado SIP mandated by the

nonattainment provision of the Clean Air Act. The revised SIP was

submitted to EPA by the State on January 2, 1979. EPA published a

notice of proposed rulemaking on May 11, 1979. See 44 Fed. Reg.

27691. The final rulemaking notice included four different types of

dispositions as to various portions of the SIP: Approval, conditional

approval, disapproval, and no final action. The instant case par-

ticularly relates to the attainment of the ambient air quality

standards for ozone and carbon monoxide in “nonattainment

areas” where EPA required I/M programs. These areas included

portions of Larimer, Weld, Adams, Arapahoe and El Paso

Counties, and the Counties of Denver, Boulder, Douglas and

Jefferson.

The EPA contended that Colorado Senate Bill 1, establishing an

1/M program to begin on January 1, 1981, and commissioning a

study of the effectiveness of various I/M-type programs, was not

“adequate enabling authority.” Accordingly, the legislation did not

receive complete EPA approval. The Administrator found that the

legislation was deficient in several respects: (1) the legislature

retained the right to approve I/M standards before they were to go

into effect; (2) the bill contained no provision for retest after

maintenance; (3) its appropriateness for 1981 and later model

vehicles was questioned; (4) it lacked schedules for implementation

of various administrative elements of the program; (5) the bill

needed provisions for recordkeeping; (6) there were no demonstrat-

ed commitments to reduce emissions by at least 25% or to

implement and enforce the program; and (7) the bill did not provide

for unannounced inspection of facilities. 44 Fed. Reg. 57404-05. As

a result of these alleged deficiencies, EPA ruled: “It is clear, however,

that the program passed by the legislature does not meet the require-

ments of the Clean Air Act and additional action by the legislature is

essential.” 44 Fed. Reg. 57405. The EPA Final Rulemaking of

October 5, 1979, set forth a timetable for the Colorado state

legislature and Governor to follow as a basis for achieving full

approval:

January 1, 1980 - Senate Bill 1 study to be completed

and submitted to legislature.

January 12, 1980- I/M program to be included on list

of Governor's Call Items for the

1980 legislative session,

February 1, 1980- Study results in the form of a draft

final report to be submitted to legis-

lature.

February 1, 1980- Bill introduced in the legislature

- copy submitted to EPA.

March 1, 1980 - Submission to EPA of legislation

signed into law by the Governor, as

well as schedules (milestones, dates,

responsible agency) to implement

the [/M program and corrections to

other noted deficiencies.

44 Fed. Reg. 57405 (1979).

We here observe that the March 1, 1980, “deadline” above

referred to was in fact the creation of the Colorado General

Assembly, by virtue of its passage of Senate Bill 1 in June of 1979

which provided, inter alia: “The general assembly shall. . . take

legislative action thereon, if any, not later than March 1, 1980...”

C.R.S. 1973, 42-4-306.5(5). The deadline was self-imposed by the

Colorado legislature.

The Administrator’s mandate was followed by a listing of the

consequences of noncompliance, including imposition of the

sanctions contained in §§ 176(a) and 316(b) of the Act, 42 U.S.C.

§§ 7506(a) and 7616(b), and a prohibition on construction of

certain new major facilities in nonattainment areas, 42 U.S.C. §

7410(a)(2)(1). 44 Fed. Reg. 38471 (July 2, 1979). The Administra-

tor emphasized the effect of noncompliance: “Due to potentially

severe impacts resulting from the imposition of sanctions, it is vital

that the effects be well understood.” 44 Fed. Reg. 57408. Among

the Administrator's “examples” of affected projects were planning

and research grants, sewage treatment grants totaling $132 million

(itemized by project), and an unspecified amount of federal

highway funds. The EPA further warned that if it appeared that the

state would not meet EPA’s schedule, the imposition of sanctions

would be accelerated. 44 Fed. Reg. 57408. These “admonishments”

were made by EPA Regional Administrator Roger L. Williams

following his meeting on February 28, 1980, with leadership of the

Colorado General Assembly during which time the leadership

expressed no hope that its own March 1, 1980, deadline would be

met and that there was little prospect for the passage of an

acceptable I/M program before the end of the legislative session.

On March 1, 1980, EPA notified this Court of its intention to

disapprove the carbon monoxide and ozone portions of the

Colorado SIP and that it would impose the Section 110(a)(2)(1)

moratorium on construction of new major or modified stationary

sources of these pollutants in the affected nonattainment areas

pursuant to authority it claimed under 42 U.S.C. 7410(a)(2)(1). At

that time, EPA would also begin to exercise its authority under

Sections 176(a) and 316(b) of the Clean Air Act, 42 U.S.C, 7506(a)

and 7616(b), to limit federal funds.

The Mountain States petition for review challenges (a) the EPA

withholding of federal funds under the Clean Air Act and imposi-

tion of a stationary source ban as coercive action designed to

achieve specific state legislative action, (b) the EPA Administrator's

action under the Clean Air Act of “conditionally approving” or

disapproving the SIP, (c) the actions of the EPA Administrator under

the Clean Air Act in requiring the Colorado General Assembly to

pass legislation meeting EPA criteria and an EPA timetable, and (d)

the various actions of the EPA Administrator in violation of the

Administrative Procedure Act, the Tenth Amendment, the First

Amendment, the Fifth Amendment and Article IV, Section 4

(guarantee of a republican form of government) of the United States

Constitution,

The State of Colorado, by and through its Attorney General, as

Intervenor, filed a brief in direct, absolute conflict with the

contentions raised by Mountain States. The State contended: (a) the

EPA Administrator had not exceeded his statutory authority in

conditionally approving the Colorado SIP, (b) the actions proposed

by EPA pursuant to the Clean Air Act, §§ 176(a), 316 and

110(a)(2)(1), do not violate the Tenth Amendment, (c) EPA's

conditional approval does not infringe on First Amendment rights

to freedom of speech and to petition the government for redress of

grievances, (d) due process of law has not been violated, (e) EPA's

conditional approval of the Colorado SIP does not abridge the

guarantee of a republican form of government, and (f) Mountain

States lacks standing to represent the State of Colorado in an ex

relatione capacity.

PROCEEDINGS FOR STAY PENDING REVIEW

Following the filing of the aforesaid Petition for Review,

Mountain States, et al., filed a Motion for Stay pending this Court's

review. The matter was briefed and argued before this Court,

following proper notice.

On March 13, 1980, this Court entered its Order granting

injunctive relief staying enforcement by the EPA of any and all

sanctions to and including May 1, 1980. We further ordered the

Petition for Review submitted. In relation to the May 1, 1980,

deadline, the Court observes that in the course of oral arguments

presented on March 13, 1980, the State of Colorado, by and

through the Colorado Attorney General, represented that it was

likely that the Colorado General Assembly would enact legislation

adopting an I/M program acceptable to EPA on or about May 1,

1980, The Attorney General expressly disclaimed any agreement

with the constitutional and statutory challenges raised by Mountain

States, et al., in their Petition for Review. In fact, the Attorney

General acknowledged that he did not share the views expressed by

Mountain States, et al., in challenging the constitutionality of the

Clean Air Act and/or the actions taken by EPA preceding EPA’

imposition of sanctions. The Attorney General's sole argument

before this Court was that the action of the EPA in imposing the

funding withholding sanctions prior to final adjournment of the

1980 session of the Colorado General Assembly would be arbitrary

and capricious action because the General Assembly was making

reasonable efforts to cure the deficiencies,

On May 2, 1980, this Court's injunctive order expired. On that

date the Administrator of EPA imposed the funding and construc-

tion sanctions. On May 7, 1980, the Colorado legislature adopted

1/M legislation, signed into law by Governor Lamm on May 23,

1980. EPA informed this Court on May 15, 1980, that it tentatively

believed the legislation to be adequate under the Clean Air Act and

had submitted for publication in the Federal Register a notice

proposing approval of 1/M legislation as part of the SIP. It was in

this setting that this Court, on May 29, 1980, upon its own motion,

ordered the parties to file memoranda by June 9, 1980, “showing

cause, if any there be, why the appeal should not be dismissed for

mootness.”

In response to this Court's “mootness” order, the parties have

responded as follows:

(1) The Colorado Attorney General took no position on the

matter. His position is unexplained.

(2) EPA urged that the Court dismiss the action as moot. EPA

points out that while, strictly speaking, the case will be moot only

after EPA has taken the final action to approve the I/M legislation

as part of the State Implementation Plan following the notice of

rulemaking and the comments which may be submitted, the Agency

will act promptly, and anticipates lifting all sanctions so that no

action will be taken under §§ 176(a) and 316. EPA contends that

under Article III of the United States Constitution the jurisdiction of

federal courts is limited to those suits presenting a “live controversy”

at the time the court reviews the case, citing to Sosna v. lowa, 419

U.S. 393 (1975) and DeFunis v. Odegaard, 416 U.S, 312 (1974),

and that this requirement precludes Article Ill courts from issuing

advisory opinions which cannot affect the rights of the parties in the

case before them, citing to North Carolina v. Rice, 404 U.S. 244

(1971) and Oil Workers Unions v. Missouri, 361 U.S. 363 (1960).

EPA also relies on the recent decision of County of Los Angeles v.

Davis, __. U.S. —_., 59 L. Ed. 2d 642 (1979) for the proposition

that a case is moot when the issues are no longer live or the parties

lack a legally cognizable interest in the outcome and where there is

no reasonable expectation that the alleged violation will recur.

As to the contention that the legislators and citizens of Colorado

must be protected from “coercion,” EPA contends that since the

Colorado legislature had acted, it no longer requires any

“protection” from the alleged “coercion,” and thus yf this Court

should reach the merits, it would be merely advising the parties as to

their constitutional right, should this issue ever arise in the future.

[Memo of EPA, June 10, 1980, pp. 5-6).

With reference to any contention that the matters presented are

“capable of repetition yet evading review,” thus coming within the

exception to the mootness doctrine applied in Wemstenr v.

Bradford, 423 U.S. 147 (1975) and Sosna v. lowa, supra, EPA

argues that it cannot be demonstrated that the administrative order

or action that expired will be repeated and that the new order will

again evade review. EPA states that the alleged “coercion” could

only occur again if the Colorado legislature either repeals its 1/M

legislation or fails to implement its provisions; further, that if such

“speculative” events should come to pass, petitioners could again

file suit after EPA imposes a construction moratorium or funding

restrictions.

(3) Mountain States strongly argued that the issues are not moot,

will not become moot, and demands judicial resolution. Mountam

States contends:

Senate Bill 52, enacting the EPA-dictated version of an

inspection and maintenance program, was narrowly

passed by the Colorado General Assembly. A shift of

only two votes in the Senate would have defeated the

measure. Attached to this memorandum are affidavits

[12 of State Senators and Representatives] and a trans-

cript of debates. . . conclusively [demonstrating] that if

the EPA sanctions had not been invoked, the legislation

in its existing form, $.B. 52, would have been over-

whelmingly defeated in both the Senate and House. . .

Furthermore, if sanctions are lifted and the threat of

reimpositior is removed, the program will almost surely

be modified. The direct and continuing effect of EPA's

pressure tactics violates the rights of Colorado citizens

.. . If the status of this case has been changed so that the

Court considers the case moot, it is because the Court

itself has allowed this to happen... The petitioners

expected a decision [from this Court] by that time [May

1, 1980]... The legislature passed legislation only after

the Court had refused to prevent EPA from blackmailing

the legislature and only after sanctions had actually been

imposed. When this lawsuit was initiated, petitioners

contended that the threatened sanctions had a chilling

impact upon the legislature. Since that time, the

sanctions have become a reality, and their ability to

control legislative action has been proven... To date

this Court has chosen to step aside and allow EPA to

intrude into the functions constitutionally given to the

Colorado government. . . Ruling that this case is moot

will have severely negative public policy implications.

Legislators must not be required to sacrifice the state

budget and allow irreparable damage to the state

economy in order to have their rights judicially clarified.

Declaring the issue of this case [the preservation of the

constitutional form of government in America] to be

moot would be an unfair and irresponsible act that

should not be tolerated by this Court or the Supreme

Court of the United States.

{Memorandum of Mountain States, filed June 9, 1980,

pp. 1-6].

THE THRESHOLD ISSUE OF STANDING

EPA has consistently contended that petitioners, Mountain

States, et al. “...lack standing to assert any constitutional

10a

arguments on behalf of the State of Colorado. . . for review since

only the state has standing to make those arguments. The state,

moreover, has epxressly opposed petitioners’ arguments; therefore,

there is no case or controversy with respect to these arguments.”

[Brief of EPA, p. 28]. EPA, citing to those “standing” requirements

articulated in Duke Power Co. v. Carolina Env. Study Group, 438

U.S. 59 (1978); Simon v. Eastern Ky. Welfare Rights Org., 426

U.S. 26 (1976); Warth v. Seldin, 422 U.S. 490 (1975) and O'Shea v.

Littleton, 414 U.S. 488 (1974), argues, inter alia:

One of the “prudential concerns” recognized by the

Supreme Court is that one party should not be permitted

to rest his claim to relief on the rights of another who

does not press those rights. Duke Power Company,

supra, at 80. The rationale for this limitation was

expressed by the Court as follows:

There are good and sufficient reasons for this

prudential limitation on standing when rights

of third parties are implicated — the avoid-

ance of the adjudication of rights which those

not before the Court may not wish to assert,

and the assurance that the most effective

advocate of the rights at issue is present to

champion them.

Neither petitioner, Mountain States Legal Founda-

tion, nor the individual petitioner-legislators, has alleged

a sufficient “personal stake” in this controversy to entitle

it to raise constitutional arguments on behalf of the State

of Colorado.2_/Only the State has sta.iding to press

claims aimed at protecting its sovereign powers under

the Tenth Amendment. Here, the State of Colorado has

intervened in this case and has directly opposed each of

petitioners’ constitutional and statutory arguments.

Hence, the one party with clear standing to raise the

constitutional arguments made by petitioners not only

declined to make those arguments but expressly rejected

them. Therefore, this case presents no justiciable case or

controversy wit!, regard to the constitutional arguments

raised here and the court need not address them. Duke

Power Company, supra. [Emphasis supplied}.

lla

Moreover, the state attacks Mountain States’ standing

to raise constitutional claims on the state’s behalf;

respondents adopt the state’s reasoning. Brief for

Colorado, at 30-34. EPA and the state both rely on this

Court’ decision in Gallagher v. Continental Ins. Co.,

502 F.2d 827 (10th Cir. 1974), as authority for the

proposition that Mountain States lacks standing to raise

claims belonging to the state. There the court held that a

group of citizens and taxpayers lacked standing to

recover (on behalf of the state of Colorado) alleged over-

payments made in connection with a highway project.

a ae a

Although the state did not challenge the standing of

the individual petitioner legislators herein, they have no

better claim to standing than Mountain States, under

Gallagher, the other authorities cited in the state's brief,

and the principles discussed above, apply with equal

force to the legislators’ standing [sic].

Even if state law permitted the petitioner legislators to

press the state’s constitutional claims, the “prudential

concerns” recognized by the Supreme Court in Duke

Power, Co., supra, dictate that this court should not

allow the legislators (or Mountain States) standing to

raise claims that the state itself declines to raise and in fact

Opposes.

[Brief of EPA, pp. 29-31).

In addition, EPA contends that no “case or controversy” exists

entitling the State of Colorado, as Intervenor, to an advisory

opinion. EPA points out that the State of Colorado, through its

Attorney General, has taken a position directly contra to that of

Petitioners, and accordingly:

Colorado contends that, as far as it is concerned, EPA

has not unlawfully trenched upon the state’s sovereign

rights. Notwithstanding this contention, it urges this

court to “set forth the standards according to which EPA

must adhere in implementing the sanctions provisions of

the Clean Air Act.” Colorado’s Brief at 17. Colorado

12a

makes this request out of its concern that the federal

agencies, because of their “tremendous powers” and the

states’ concomitant dependence on continued receipt of

federal funding, might, at some unspecified time in the

future, unlawfully invade Colorado’s sovereign rights;

and, although the state steadfastly maintains the EPA has

not yet done so, it apparently believes that the mere

potentia! for future unlawful action by EPA is sufficient

justification for this court to sketch the constitutional

boundaries of EPA’s authority under the Clean Air Act.

See Brief for Colorado at 9-11, 16 and 17.

The lack of a dispute with regard to the Tenth

Amendment issues between the federal government and

the only party with standing to raise these issues — the

State of Colorado — deprives this case of the indispens-

able Article III “case or controversy” which is the

predicate for the exercise of federal judicial power, and

consequently short-circuits further consideration by this

court of all Tenth Amendment claims. Therefore,

whatever the depths of Colorado’s concerns with regard

to the potential abuse of power by EPA or other federal

agencies, those concerns cannot vest this court with

jurisdiction to render an advisory opinion.

In conclusion there is no case or controversy here

because Colorado contends that the Clean Air Act passes

constitutional muster under the Tenth Amendment and

the petitioners lack standing to raise any contrary Tenth

Amendment claims. Thus any decision on these issues

would be purely advisory and beyond the judicial power

of this court under Article III.

[Brief of EPA, pp. 33-35].

The State of Colorado, by and through its Attorney General,

contends that Mountain States is without standing to represent the

sovereign interest of the State of Colorado in an ex relatione

capacity:

.. .[A]n action concerning matters of general public

l3a

welfare is appropriately instituted in the name of the

attorney general or in the name of the state ex rel.

attorney general. See, e.g., State ex rel. Taylor v. Lord,

28 Or. 498, 43 P. 421 (1896); Coco v. Oden, 143 La.

718,79 So. 287 (1918); State ex rel. Attorney General v.

Cunningham, 81 Wisc. 440, 51 N.W. 724 (1892);

United States v. Throckmorton, 98 U.S. 61, 70 (1878).

C.R.S. 1973, 24-31-101 et seq. provides that the

attorney general shall appear for the state in all actions:

In which the state is a party or is interested

when required to do so by the governor.

C.R.S. 1973, 24-31-101(1)(a). In this case, by executive

order No. D0030-74 the Governor ordered the attorney

general to intervene in this action to represent the

interests of the state. (See attached exhibit C.)

Unless a statute provides otherwise, the attorney

general has the exclusive right to represent the state in

actions to enforce its interests. State Board of Pharmacy

v. Hallett, 88 Colo. 331, 296 P. 540 (1937). Colorado

has passed no legislation authorizing a private person to

represent the state in this or any other such action.

A similar issue arose in an action brought by citizens

and taxpayers of Colorado seeking recovery of the

amounts allegedly unlawfully disbursed in payment of

work done on a tunnel construction project. This circuit

held that these citizens had no standing to seek to recover

these alleged overpayments on behalf of the State of

Colorado. [Gallagher v. Continental Insurance Co., 502

F.2d 827 (10th Cir. 1974)]. Characterizing the suit as a

derivative action on behalf of the State of Colorado, this

circuit found that there was no authority under the

Colorado law for maintaining such an action.

bo bd

Despite its clear lack of authority, petitioner Moun-

tain States Legal Foundation may urge this court to imply

authority for its actions from common law cases in

l4a

which private persons sought to act as relators.

Petitioner’s argument should be rejected.

The doctrine in Colorado at common law was that a

private person could not, as a matter of right, bring an

action for wrongs done to the public. Private persons

could represent the people as a relator only where the

injury, in addition to affecting the public, peculiarly

affected them. People ex rel. Byers v. Grand River Bridge

Co., 13 Colo. 11, 21 P. 898 (1889); People ex. rel.

Jerome v. Regents of State University, 24 Colo. 175

(1897); People ex rel. v. Blake, 128 Colo. 111, 260 P.2d

592 (1953).

The petition for judicial review, filed with this court on

December 4, 1979 by petitioner, is utterly devoid of any

allegations of fact attempting to demonstrate that

Mountain States Legal Foundation has any special

interest in this matter other than that of the general

public. Thus, even under the common law test,

Mountain States Legal Foundation has no standing to

represent the state as a relator in this action. McCamant

v. Denver, 31 Colo. App. 287, 501 P.2d 142 (1972).

Petitioners may also erroneously seek to premise their

ex relatione status on Colo. R. Civ. P. 106, which

provides that if the district attorney declines to bring an

action under rule 106(a)(3) it may be brought upon the

relation and complaint of any person. Rule[s] 106(a)(3),

however, refers only to actions involving usurpation of

office or franchise and is irrelevant to the situation

herein.

Moreover, even if rule 106 or the common law

provided a proper basis for authority for petitioner's

attempt to attain ex relatione status, it should be noted

that the state has not declined to become involved in this

action but has intervened as a party. Petitioners may have

serious standing problems concerning their right to raise

the tenth amendment issue (see respondent’s memoran-

dum in opposition to petitioner’s motion for stay

pending review, pp. 25-28). This does not give them the

lSa

right to bootstrap themselves, however, into a position

whereby, without any authority whatsoever, they

purport to represent the state and thus obtain standing to

raise issues they would otherwise be unable to raise. See

Gallagher v. Continental Insurance Co., supra.

[Brief of Intervenor, pp. 30-34).

Mountain States did not specifically address the “standing” issue,

apparently of the view that the challenge is without substance.

Contending that “this controversy” calls upon the court to make a

major decision regarding the future relationship of the national and

state governments [Brief of Petitioners, p. 13], Mountain States

urges that the EPA Administrator's action be invalidated under the

Administrative Procedure Act, 5 U.S.C. §706, and that, in

addition, relevant portions of the Clean Air Act be declared

unconstitutional. Relying heavily on National League of Cities v.

Usery, 426 U.S. 833 (1976), Mountain States argues that the

essence of that decision “. . . is that courts must determine whether

the national government has exercised its commerce power

authority in a manner that ‘displaces’ state decisionmaking

regarding an integral state government function. This involves a

determination of (1) whether an integral function is involved and (2)

whether state decisionmaking has been displaced. If both of these

factors are present, then the action of the national government is

unconstitutional as violative of the tenth amendment.” [Brief of

Petitioners, p. 15]. [Footnote omitted].

Mountain States, et al., contends that in this case EPA is

attempting to interfere in one of the most essential state functions —

lawmaking — by imposing severe and unncessary sanctions against

the states, the result of which is to shift decisionmaking from the

state to the national government and to destroy the state's

autonomy. After recounting the severe impact of the threatened

sanctions, 1.e., halt to various projects, loss of jobs, serious financial

difficulties for local governments, Mountain States concludes: “In

short, the EPA sanctions threaten economic havoc for the state, its

political subdivisions, and its people. It is difficult to imagine that

the state government could compensate for the loss of federal funds

or that the economy could adjust to such a setback. Consequently, it

is likely that citizens of Colorado would be deprived of essential

services.” [Brief of Petitioners, p. 10].

l6a

GENERAL PRINCIPLES OF STANDING

The critical, principal question here is whether any of the peti-

tioners qualify as “aggrieved” persons entitled to judicial review of

final agency action, or whether the petitioners have presented a

sufficient “case or controversy” to import justiciability between the

petitioners and the respondent within the meaning of Article III of

the United States Constitution.

The question of standing involves “whether the litigant is entitled

to have the court decide the merits of the dispute or of particular

issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). In Duke Power

Co. v. Carolina Env. Study Group, 438 U.S. 59 (1978), the

Supreme Court recognized “injury in fact” as the one constant

element in judicial statements concerning standing:

The essence of the standing inquiry is whether the

parties seeking to invoke the court’s jurisdiction have

“alleged such a personal stake in the outcome of the

controversy as to assure that concrete adverseness which

sharpens the presentation of issues upon which the court

so largely depends for illumination of difficult constitu-

tional questions.” Baker v. Carr, 369 U.S. 186, 204

(1962). As refined by subsequent reformulation, this

requirement of a “personal stake” has come to be under-

stood to require not only a “distinct and palpable injury,”

to the plaintiff, Warth v. Seldin, 422 U.S. 490, 501

(1975), but also a “fairly traceable” causal connection

between the claimed injury and the cha'lenged conduct.

Arlington Heights v. Metropolitan Housing Dev. Corp.,

429 U.S. 252, 261 (1977).

438 U.S. at p. 72.

“Injury in fact” means concrete and certain harm. It may be the

out-of-pocket costs to a business resulting from obedience to a new

governmental rule, Hunt v. Washington Apple Advertising

Comm’r., 432 U.S. 333 (1977), or the unwanted result of a govern-

ment rule whether or not a pecuniary loss is sustained. Arlington

Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977).

Even so, in the absence of a specific statutory grant of a right of

review, a plaintiff must allege some particularized injury that sets

him apart from the man on the street. United States v. Richardson,

418 U.S. 166 (1974). Thus, in National Collegiate Athletic

17a

Association v. Califano, F.2d (No. 78-1632, 10th Cir.,

April 17, 1980) we held that a plaintiff has standing if he is “injured

in fact” by the defendant's conduct and that the “injury in fact” must

constitute concrete and certain harm.

It is well established that judicial review of final agency action by

an “aggrieved” person will not be denied uniess there is a persuasive

reason to believe that such was the purpose of Congress. Morris v.

Gressette, 432 U.S. 491 (1977). A party must clearly demonstrate

by facts alleged that “he himself adversely affected” or those he

represents have been “injured in fact” by the agency’s conduct. Sierra

Club v. Morton, 405 U.S. 727 (1972); Data Processing Service v.

Camp, 397 U.S. 150 (1970).

STANDING IN RELATION TO PERTINENT

STATUTORY PROVISIONS OF THE CLEAN AIR ACT

AND A COLORADO STATUTE

It is necessary in cases involving “standing” contentions to

concentrate on the specific statutory framework from which the

challenges have their origin in order to place the issue in proper

focus. Thus, in the case at bar, we must first analyze the Clean Air

Act in its pertinent parts together with any relevant Colorado

statutes.

The [EPA] Administrator is directed to “. . . cooperate with and

encourage cooperative activities by all Federal departments and

agencies having functions relating to the prevention and control of

air pollution, so as to assure the utilization in the Federal air

pollution control program. . . [in conjunction with]. . . coopera-

tive activities by the States and local governments for the prevention

and control of air pollution...” 42 U.S.C. § 7402(b) and (a).

“Each State shall have the primary responsibility for assuring air

quality within the entire geographic area comprising such State by

submitting an implementation plan for such State which will specify

the manner in which national primary and secondary ambient air

qualtiy standards will be achieved and maintained within each air

quality control region in such State.” 42 U.S.C. § 7407(a) [emphasis

supplied]. The Administrator is directed to make various deter-

minations relative to a State plan which, by the language of the

statute must include “the comprehensive measures and require-

ments” to be approved by the Administrator with an “attainment”

date not later than December 31, 1982. 42 U.S.C. § 7410. Should

there exist any “nonattainment areas” within a State from and after

18a

June 30, 1979, in which construction or modification is not then

being pursued, the Administrator contends that he is directed to

terminate construction of any major stationary source under 42

U.S.C § 7410(a)(2)(1), and to withhold certain federal assistance

funds from the affected “nonattainment areas,” if the Governor of

the affected state has not submitted an implementation plan which

considers the required elements enumerated in 42 U.S.C. § 7502 or

if reasonable efforts toward such submission are not being made

after July 1, 1979. 42 U.S.C. §§ 7506(a)(3) and 7616(b)(2). Thus,

the Congress expressly authorized the sanctions imposed in this

case; furthermore, it is ludicrous to imagine that the Congress did

not understand the significance of the economic impact of the

funding restrictions it directed.

Significantly, the Act deals with compliance requirements beyond

state plans and provides for private penalties. The Act mandates

exclusive review in the courts of appeals governing the grant or

denial of waivers to companies unable to comply with applicable

standards, 42 U.S.C. §§ 7411(j), 7412(c), 7413(d) and 7419 and

establishes a procedure empowering the Administrator to impose

noncompliance penalties against the affected party following notice

and hearing. 42 U.S.C. § 7420. In terms of “citizen suits,” they are,

in our view, clearly authorized by direct proceedings in the district

courts under 42 U.S.C. §§ 7604 when the EPA Administrator is

charged with failure to perform a non-discretionary duty. See 38

ALR Fed. 578. In our view, Congress thus restricted citizens’ suits to

actions seeking to enforce specific non-discretionary clear-cut

requirements of the Clean Air Act. Anaconda Co. v. Ruchelshaus,

482 F.2d 1301 (10th Cir. 1973).

The EPA Administrator’s Final Rulemaking on Approval of the

Colorado SIP of October 5, 1979, challenged here, was solely and

exclusively directed to the State Plan. The 1977 amendment to the

Clean Air Act required that a specific schedule be adopted to

establish the inspection/ maintenance (I/M) program, as “expedi-

tiously as possible.” To be acceptable, an I/M program must

achieve the required 25% reduction in both hydrocarbon and

carbon monoxide exhaust emissions by 1987. It was in this setting

that the EPA Administrator on March 14, 1980, published a final

rule, 45 F.R. 16486, disapproving the carbon monoxide and ozone

portions of the Colorado State Implementation Plan, invoking the

restrictions on construction of major new or modified stationary

sources and announcing that it would begin withholding certain

financial assistance form the affected “nonattainment areas.”

19a

We have heretofore observed that the State of Colorado, by and

through its Attorney General, has in fact intervened in this case. The

position of the State of Colorado is completely in contradiction to

that of Mountain States and the twenty-seven members of the

Colorado General Assembly on the constitutional and statutory

challenges raised by the petitioners. The sole contention raised by

the State of Colorado was that the imposition of the sanctions by the

EPA Administrator prior to final adjournment of the 1980 session

of the Colorado General Assembly would constitute arbitrary and

capricious action by the EPA. Thus, the State of Colorado, by and

through its chief legal officer, the Attorney General, has elected to

disassociate itself with the contentions raised by petitioners herein

involving constitutional and statutory challenges to EPA’s actions

taken or threatened. We observe that this posture is one which, at all

times, must necessarily have been known to all state officials and to

the officers and members of Mountain States. Even so, there is

nothing whatsoever in this record indicating that (a) the Governor

of Colorado at any time directed the Attorney General to raise the

challenges presented here by petitioners, or (b) the General

Assembly [or any one of the twenty-seven legislators who appear as

petitioners here] requested the Attorney General to prosecute suit

against the EPA, notwithstanding the provisions of C.R.S. 1973,

24-31-101(1)(a):

The attorney general of the state shall be the legal

counsel and advisor of each department, division, board,

bureau, and agency of the state government other than

the legislative branch. He shall attend in person at the

seat of government during the session of the general

assembly and term of the supreme court and shall appear

for the state and prosecute and defend all actions and

proceedings, civil and criminal, in which the state is a

party or is interested when required to do so by the

governor and he shall prosecute and defend for the state

all causes in the appellate courts in which the state ts a

party or interested. [Emphasis supplied].

Attached to Intervenor’s Brief as Exhibit “C,” is a copy of an

Executive Order executed by Governor Richard D. Lamm, dated

December 21, 1979, ordering the Attorney General to intervene in

this lawsuit pursuant to C.R.S. 1973, 24-31-101(1)(a) as one in

which “the State is interested.” Intervention was granted on January

20a

30, 1980.

One must necessarily ask: Who represents the State of Colorado?

In light of the complete, unequivocable conflict in postions

heretofore emphasized between petitioners and the State of

Colorado, by and through the Attorney General, the issue must be

addressed.

STANDING OF MOUNTAIN STATES TO SUE FOR ITSELF

We hold that Mountain States doe not have standing to sue in its

own right. There is no showing that the challenged EPA actions will

in anywise impair the functions and activities of Mountain States.

There is no contention that Mountain States will suffer loss of

membership, sustain financial loss or any other impairment as a

result of the actions of the EPA, whether actually taken or

threatened. Furthermore, Mountain States cannot satisfy the

standing requirement contained in § 10(a) of the Administrative

Procedure Act, 5 U.S.C. § 702:

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is entitled

to judicial review thereof.

We hold that Mountain States has not demonstrated that it has a

sufficient “personal stake” in the outcome of the controversy to

render itself, as an organization deeply interested in the problem, an

“aggrieved person” with a demonstrated “legal wrong” or claimed

invasion of a “legal right.” Unites States v. SCRAP, 412 U.S. 669

(1973); Sierra Club v. Morton, supra. Notwithstanding the fact

that Mountain States has advanced constitutional claims on behalf

of its officers, members, supporters, and the State of Colorado, we

conclude that Mountain States has nothing more than an indirect

stake in the action. In Sierra Club v. Morton, supra, the matter was

well articulated:

The requirement that a party seeking review must

allege facts showing that he is himself adversely affected

does not insulate executive action from judicial review,

nor does it prevent any public interests from being pro-

tected through the judicial process. It does serve as at

2la

least . rough attempt to put the decision as to whether

review will be sought in the hands of those who have a

direct stake in the outcome. That goal would be under-

mined were we to construe APA to authorize judicial

review at the behest of organizations or individuals who

seek to do no more than vindicate their own value prefer-

ences through the judicial processes.

405 U.S. at p. 740.

In Natural Res. Def. Coun., Inc. v. United States Env. P. Agcy.,

481 F.2d 116 (10th Cir. 1973), Judge Breitenstein, writing for this

Court, noted that 42 U.S.C § 1857h-5(b)(1), which was the

predecessor to § 7607(b)(1), simply provides that a petitioner

seeking review of the EPA Administrator’s action in approving or

promulgating any implementation plan under § 1857c-5 of the

Clean Air Act may do so by filing a petition in the appropriate

United States Court of Appeals, without any requirement that the

person or organization seeking review is a person “adversely

affected or aggrieved” as required under 5 U.S.C. § 702. Notwith-

standing the “blanket invitation to all the world to petition a court

of appeals for review” under § 1857h-5(b)(1), we held that a party

attacking agency action, whether it be in connection with rule

making or after an adjudicatory type hearing, must have standing,

which, under Article III, requires a showing of injury in fact

bringing the party within the zone of interests protected by the

Clean Air Act.

ll.

STANDING OF MOUNTAIN STATES TO SUE FOR

Its OFFICERS, MEMBERS AND SUPPORTERS

We turn now to the question of whether Mountain States has

standing to sue on behalf of its officers, members, and supporters

who are citizens of and reside in the “nonattainment” areas of the

State of Colorado affected by the EPA action, and those officers,

members and supporters “in the remainder” of Colorado who are

deprived of their constitutional and statutory rights.

We hold that there is nothing contained in this record showing

that the officers, members and supporters of Mountain States have

that necessary “personal stake” demonstrating injury in fact. The

only resources they may have committed or advanced are those

e*%

22a

representing membership fees or tax payments, the former consti-

tuting voluntary action unassociated with issues involved here, and

the latter in a class common to all taxpayers generally. There is no

showing that their activities within the Mountain States organi-

zation have been or will be affected in any manner as a result of the

challenged EPA actions. There is nothing about the EPA action,

including the sanctions, which can be considered compulsion by

unwanted and unlawful government edict constituting injury per se

traceable to the officers, members or supporters of Mountain

States. There is no analogy here to that loss of accounts experienced

by the apple dealers in Hunt v. Washington Apple Advertising

Comm'n., 432 U.S. 333 (1977) or the inability of a builder to

undertake a program of low-cost building in an area included in

restrictive zoning ordinances, as set forth in Arlington Heights v.

Metropolitan Housing Corp., 429 U.S. 252 (1977). In terms of the

“legal wrongs” or “zones of interests” tests relative to standing to

sue, under the Administrative Procedures Act, individuals, as

officers, members and supporters of an organization, must

demonstrate that the challenged statutes and/or regulations have

some articulable “cause-and-effect” relation to an identifiable

“injury” which, in fact, affects them:

. . .Petitioners must allege facts from which it reason-

ably could be inferred that, absent the r ts

zoning practices, there is a substantial probability that

they would have been able to purchase or lease. . . and

that, if the court affords the relief requested, the asserted

inability of petitioners will be removed.

Warth v. Seldin, 422 U.S. at p. 504.

The crux of petitioners’ requested legal redress, as identified in

the Petition for Review, is an order from this Court setting aside the

actions of the Administrator of EPA on a variety of constitutional

grounds essentially targeted at the threatened “punitive sanctions

against the State of Colorado.” Significantly, the Petition states that

prior to filing said Petition, Mountain States dispatched a letter to

Governor Lamm requesting him “to direct the Attorney General to

protect the interests of the State of Colorado”; further, both

formally and informally, specific requests were made of the

Attorney General to “protect the sovereign interests of the State of

Colorado from federal government intrusion into the internal

affairs of the State” by filing the Petition for Review within the

requisite time limit, to-wit, by December 4, 1979. The Petition

states that because representatives of the Attorney General's office

23a

stated that there was no present intention to challenge the Admin-

istrator’s rulemaking order of October 5, 1979, “. . . Mountain

States Legal Foundation takes it upon itself the responsibility to file

this Petition ex relatione on behalf of the sovereign State of

Colorado. Should the Governor of the State of Colorado direct the

Attorney General to represent the state’s interest in this grave

constitutional matter, the Mountain States. ..would eagerly

welcome his involvement.” The foregoing is, in our view, an implicit

acknowledgment by petitioners that the challenges advanced by

them are, in reality, [if accepted as true based on the pleadings

contained in the Petition] challenges directly affecting the sovereign

State of Colorado. As thus cast, these challenges could only be

advanced here by the Attorney General. In fact, however, the

Attorney General, in intervention, has refused to associate the

interests of the State of Colorado with the challenges advanced by

petitioners,

In Gallagher v. Continental Insurance Company, 502 F.2d 827

(10th Cir. 1974), this Court held that a growp of citizens and

taxpayers had no standing to recover, on behalf of the State of

Colorado, alleged overpayments made in connection with a

highway project. We there said:

Plaintiffs urge that as state citizens and taxpayers they

may sue for the recovery of unlawfully disbursed funds.

Viewed in this light, the suit is a derivative action to

assert state rights. Authority to bring a suit of that nature

depends on state law. Colorado has no constitutional or

statutory authorization for maintenance of derivative

actions on behalf of the state. It has been held that absent

statutory authorization citizens and taxpayers may not

bring a derivative suit on behalf of the state. . . In some

cases courts have implied such a right. . . In Colorado,

the right would have to be implied. We agree with the

district court that it is not “the province of the federal

judiciary to fashion implied state rights of action.”

[Citations omitted].

$02 F.2d at 832.

The issue of “standing” in a case very similar to the case at bar was

before this court in Natural Res. Def. Coun., Inc., v. United States

Env. P. Agcy., supra. There, the petitioners, although not asserting

constitutional issues, did challenge the EPA Administrator's

approval of portions of implementation plans submitted under the

Clean Air Act by Colorado, New Mexico and Utah. We held that

24a

the petitioners were without standing. The petitions for review

were dismissed. We there said, in relevant part:

We believe that the question is whether the party

attacking agency action has standing, not whether the

issue itself is justiciable. . . [F]actors [to be considered]

are whether the attack on agency action is by a person

within the zone of protected interests... .

We come then to the effect of §1857h-5(b)(1). By

permitting anyone in the world to petition for review of

agency action without hindrance or limitation, Congress

attempts to authorize private attorney generals to assert

a public interest. If Art. II is not controlling, the question

is the power of Congress to affect the Court imposed rule

of self-restraint. We are helped by no decided cases. . . .

Anything which we might say on the rights of private

citizens to assert their ideologies in public actions would

add little if anything to the literature on the subject.

... We believe that any congressional authorization

of suits by private attorney generals must be unequivocal

and appropriate.

...§1857h-5(b)(1) is not an appropriate authori-

zation. .. . Unrestricted litigation by private persons to

assert their own ideologies under a claim of public

interest presents the potential of hazardous conse-

quences to our constitutional system based as it is on the

concept of separation of powers.

... We believe that Art. III is controlling and that

petitioners lack standing because they fail to state any

injury in fact and hence do not present a case or con-

troversy within the constitutional mandate. If we are

wrong in this, we believe that petitioners have no

standing because they have alleged nothing which brings

them within the zone of interests protected by the Clean

Air Act Amendments of 1970. If we are wrong in both of

these conclusions. . . we believe that §1857h-5(b)(1) is

ineffective to deny the exercise of judicial restraint in

determination of standing in cases like these, and we

choose to exercise that restraint.

481 F.2d at pp. 120-121.

We hold that Mountain States is without standing to seek judicial

review on behalf of its officers, members and supporters.

25a

Ill.

STANDING OF THE ITWENTY-SEVEN NAMED

MEMBERS OF THE COLORADO GENERAL

ASSEMBLY TO SUE

It is the contention of the named members of the Colorado

General Assembly that “. . . EPA has entered a sensitive area by

telling a state legislature to pass new legislation meeting certain

specific requirements... The actions of the EPA — requiring

passage of legislation and threatening sanctions against the state —

have a serious chilling effect upon the legislators’ freedom of

speech.... Compelling an affirmative act of a political or

ideological nature is not permitted by the first amendment. Wooley

v. Maynard, 430 U.S. 705 (1977). .. . The national interest does

not outweigh the first amendment interest in preserving the

important right of legislators to vote according to the wishes of their

constituents, not at the behest of another government agency.”

[Brief of Mountain States, pp. 33-34}.

A private litigant, whether he be a legislator, a citizen or a

taxpayer must, in order to have “standing” to sue, demonstrate a

personal stake in the outcome, and demonstrate that he is the

proper party to request adjudication of the particular issue. Flast v.

Cohen, 392 U.S. 83 (1968). Federal courts do not have power to

render advisory opinions. F.C.C. v. Pacifica Foundation, 438 U.S.

726 (1978).

In Lamon v. Volpe, 449 F.2d 1202 (10th Cir. 1971), this court

held, inter alia, that the plaintiff, who filed a class action seeking a

declaratory judgment that a federal statute constituted an

usurpation of the police power reserved to the State of Colorado in

violation of the Tenth Amendment, was without “standing.” There

Lamm (now Governor Lamm) sued individually as a citizen and

taxpayer of the State of Colorado and of the United States, ard us a

member of the Colorado legislature. He contended, much in the

manner of the twenty-seven legislators in the instant case, that 23

U.S.C. §131 was unconstitutional as violative of the Tenth

Amendment. That provision was enacted as part of the 1965

Highway Beautification Act, which regulated outdoor advertising

along federal-aid highways. It provided that if the Secretary of

Transportation decided that any State had not provided “effective

control” of outdoor advertising along federal-aid highway systems,

the total Federal-Atd Highway Allotment to that State would be

reduced 10% per year [estimated to be $6 million per year to

26a

Colorado]. Lamm had introduced bills in the Colorado legislature,

in reliance on the State’s police power, which apparently would have

declared the outdoor advertising adjacent to certain highways,

including the federal-aid highway system, subject to destruction or

abatement without compensation as injurious to public safety as a

public nuisance. Lamm had contended that the “withholding”

statute had, in effect, intimidated the Colorado Legislature and had

prevented due consideration of his bills. We held that Lamm lacked

standing to raise the Tenth Amendment challenge because he had

not demonstrated that Congress, in enacting 23 U.S.C. §131,

supra, had exceeded its taxing and spending power delegated to it

by Article I, §8, and that Congress had not thereby invaded the

legislative province reserved to the states by the Tenth Amendment.

In dicta we observed:

Here the power of regulation has not been preempted

by the Congress. But that begs the point. The Congress

has clearly determined that the “taking” of outdoor

advertisements adjacent to federal-aid highways

required “just compensation.” The Tenth Amendment

has been construed “as not depriving the national

government of authority to resort to all means for the

exercise of a granted power which are appropriate and

plainly adapted to the permitted end.” United States v.

Darby, 312 U.S. 100. . .(1941). And while the United

States is “not concerned with, and has no power to

regulate local political activities as such by state officials,

it does have power to fix the terms upon which its money

allotments to state shall be disbursed.” Oklahoma v.

U.S. Civil Service Comm’n., 330 U.S. 127. . .(1947).

% % %

Following oral arguments, Lamm submitted “tradi-

tional cases” in further support of his standing con-

tention. He cited Allen v. Hickel, 138 U.S. App. D.C.

31, 424 F.2d 944 (1970); Protestants and Other

Americans United for Separation of Church and State v.

Watson, 132 U.S. App. D.C. 329, 407 F.2d 1264

(1968); Association of Data Processing Service Organt-

zations v. Camp, 397 U.S. 150. . .(1970); and School

Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203

.. .(1963). These decisions do not aid Lamm. In each

27a

case the challenge to the taxing and spending power was

anchored to an alleged constitutional provision restrict-

ing its exercise. The Tenth Amendment does not raise the

challenge.

449 F.2d at pp. 1203-1205.

CONCLUSION

The constitutional issues of paramount concern to Mountain

States, et al., relate to the rights of the State of Colorado and all of its

citizens. They have been invoked by Mountain States, et al., in the

context of a federal statute, the Clean Air Act, which requires

particular action on the part of the State of Colorado (submission of

a SIP which meets approval of the EPA Administrator) and which, if

not approved, triggers imposition of sanctions as a result of the

failure of the State to submit a plan meeting EPA standards. Thus, in

truth, the State of Colorado is the real party in interest. C.R.S.

1973, 24-31-101(1)(a) provides that the Attorney General of the

State of Colorado is to appear “for the state” in all actions, civil and

criminal, in which the State “is a party or interested” when “required

to do so by the governor.” Here, the Attorney General was directed

to intervene on behalf of the State of Colorado by Governor Lamm

on the basis that “the State is interested.” We must assume, of

course, that the absolutely conflicting position posited by the

Attorney General to the panoply of serious constitutional and

statutory contentions so forcefully advanced by Mountain States, et

al., are views shared by Governor Lamm who directed the Attorney

General to intervene. The Colorado Supreme Court has held that

C.R.S. 1973, 24-31-101(1)(a) grants the Attorney General the

exclusive right, in the absence of another statute providing

otherwise, to represent the State in actions to protect its interests.

State Board of Pharmacy v. Hallett, 296 P. 540 (Colo. 1937).

Following intervention, the Attorney General vehemently

opposed all of the constitutional chaiicuges advanced by

petitioners. His soic aiid only challenge involved the possible

imposition of limitations on federal financial assistance and ban on

construction. The Attorney General argues that in light of the good

faith efforts of the State in achieving compliance, the imposition of

sanctions during the 1980 legislative session would be arbitrary,

capricious and unreasonable. At no time, did the Colorado General

Assembly request the Attorney General to appear for the State and

advance the contentions made herein by Mountain States, et al.

28a

Nothing in the record indicates the enactment of any resolution or

declaration by the Colorado General Assembly indicating a

“consensus” with the contentions advanced by the twenty-seven

legislators who are petitioners herein. For standing purposes,

“abstract injury” does not suffice for the required “injury in fact.”

O'Shea v. Littleton, 414 U.S. 488 (1974).

Thus, on the state of the record before us, we must hold that the

only party with the requisite “standing” to challenge the actions of

the EPA Administrator is the State of Colorado, represented here

solely by the Colorado Attorney General by virtue of statutory and

executive authority. The general rule is that, by virtue of consti-

tutional and/or statutory provisions or common-law power, the

state attorney general, as chief law officer of the state, is the

exclusive legal representative of the state in all litigation with regard

to matters of public interest, and he alone has the right to represent

the state as to litigation involving a subject matter of statewide

interest. See 7 C.J.S., Attorney General, §8(c) and cases cited; 7

Am. Jur.2d, Attorney General, §11 and cases cited. Again, we

pointedly observe that, with the exception of the threatened

imposition of sanctions by EPA, the State of Colorado flatly

contradicts the contentions of Mountain States, et al. , that the State

of Colorado, its citizens and legislators, have suffered any consti-

tutional harm or injury. The Attorney General, to the contrary,

vehemently contends that the State of Colorado has not suffered

any concrete injury as a result of the EPA Administrator's actions

under authority of the Clean Air Act. “Concrete injury, whether

actual or threatened, is that indispensable element of a dispute

which serves in part to cast it in a form traditionally capable of

judicial resolution.” Schlesinger v. Reservists to Stop the War, 418

U.S. 208, 220-221 (1974).

We take no position as to the utterly conflicting views involving

the constitutional and statutory challenges posited by Mountain

States, et al. In light of our ruling on the “standing” issue, the

conflict does not present a justiciable case. It does, of course,

present sharp political and ideological differences of substantial

import. These are not matters, however, properly directed to this

Court for resolution in view of the fact that the only party with

standing to advance them has elected not to do so. The complaints

registered herein directed at the alleged unlawful actions of the EPA

Administrator are, in reality, complaints against the Congress of the

United States which enacted the Clean Air Act, as amended. The

1977 amendments to that Act included the provisions directing

29a

administrative imposition of the sanctions.

On June 13, 1980, EPA proposed approval of the Governor's

submittal of the revised Colorado SIP relative to the motor vehicle

emissions control program and solicited comments on this action.

See 45 Fed. Reg. 40167. The notice of final rulemaking approving

Colorado’s automobile exhaust emissions control program for

inclusion in its SIP and removing the federal funding and stationary

source construction restrictions was executed under date of July 10,

1980. It was published and became effective July 16, 1980. See 45

Fed. Reg. 47682. As previously noted, the Colorado Attorney

General has taken no position on the mootness issue. We hold that

the aforesaid final rulemaking action does, under the circumstances

of this case, render any and all contentions raised and advanced by

the State of Colorado, as intervenor, moot.

The petition for review is dismissed.

‘A non-profit corporation, organized “as a public interest law center dedicated

to bringing, before the courts those issues vital to individual rights and freedoms

protected by the United States Constitution and the nation’s legal traditions,”

whose offices are in Denver, Colorado, on behalf of its officers, members, and

supporters who reside within the “nonattainment” areas affected by the chal-

lenged action and in the remainder of the State of Colorado, and who are being

deprived ot their constitutional and statutory rights.

2 (Indeed petitioners have not even responded, in their brief, to respondents’

arguments in its Memorandum in Opposition to Petition for Stay that they lack

standing in this case to make any constitutional arguments on behalf of the state.

30a

3la

APPENDIX B

ENVIRONMENTAL PROTECTION AGENCY*

40 CFR Part 52

[FRL 1333-7]

[44 Fed. Reg. 57401 (October 5, 1979)]

Final Rulemaking on Approval of

Colorado State Implementation Plan

AGENCY: Environmental Protection Agency.

ACTION: Final Rulemaking.

“NOTE: Portions of the EPA Final Rulemaking that are not relevant to this

Petition for Certiorari and that were not reviewed by the lower court have been

omitted.

SUMMARY: The purpose of this notice is to approve, in part,

the State Implementation Plan (SIP) revision for Colorado which

was received by EPA on January 2, 1979. In addition, EPA is taking

final action to conditionally approve some elements of the Colo-

rado SIP. The conditional approval requires Colorado to submit

additional materials to satisfy the conditions. This plan revision was

prepared by the State to meet the requirements of Part D (Plan

Requirements for Nonattainment Areas) of the Clean Air Act (the

Act), as amended in 1977. On May 11, 1979 (44 FR 27693), EPA

published a notice of proposed rulemaking which described the

nature of the SIP revision, discussed certain provisions which in

EPA’s judgment did not comply with the requirements of the Act,

and requested public comment. Numerous comments were

received.

The Environmental Protection Agency (EPA) has reviewed

public comments received on the May 11, 1979, proposal and is

taking the following actions:

1. Approval — a. Strategy for Colorado Springs (The urbanized

area) as defined by the continuing, comprehensive, and coopera-

32a

tive planning process (3-C). Total Suspended Particulates (TSP); b.

Strategy for Grand Junction (Mesa designated area) TSP; c.

Strategy for Denver (3-C urbanized area), Nitrogen Dioxide; d.

Strategy for Denver (designated area), TSP.

2. Conditional Approval — a. Denver (Counties of Arapahoe,

Adams, Denver, Jefferson, Boulder, and Douglas), Ozone and

Carbon Monoxide (CO); b. Colorado Springs (3-C urbanized

area), CO; c. Larimer-Weld Region (Fort Collins and Greeley) CO;

d. Strategy for Pueblo (3-C urbanized area), TSP; e. Regulation 3,

“Process for Emission Permit Review”; f. Regulation 7 “Volatile

Organic Compounds”; g. Inspection/ Maintenance Program; h.

Section 172(b)(11)(A) of the Act (Alternatives Analysis).

3. No final action — a. Colorado Springs (El Paso County),

Ozone; b. Larimer-Weld (designated area), TSP; c. Larimer-Weld

Counties, Ozone; d. Larimer-Weld Transportation Control

Measures Schedules (proposed elsewhere); e. Denver Transpor-

tation Control Measures Schedules (proposed elsewhere).

4. Disapproval — Regulation 3, Legal Authority Under Section

110 of the Act.

Elsewhere in today’s Federal Register, EPA is inviting public

comment on the acceptability of deadlines for complying with the

conditions of approval. Also in that same notice, EPA is requesting

comment on the acceptability of transportation control measures

schedules for Denver and Larimer-Weld, submitted by the State on

July 27, 1979, and July 5, 1979, respectively.

EPA has also chosen to take no action in areas which are being

proposed for redesignation to unclassifiable or attainment under

Section 107 of the Act and on the transportation control measures

schedules for Denver and Larimer-Weld. Until EPA’s “Final

Rulemaking” on the redesignations, the SIP for these areas will not

be approved.

In this notice the SIP is summarized, issues resulting in SIP

approval, conditional approval and no action are discussed, and

EPA’s responses to relevant comments received on its proposal are

included. It should be noted that only the requirements with respect

to Part D of the Act are discussed, with one exception, Regulation 3.

EFFECTIVE DATE: Effective October 5, 1979.

FOR FURTHER INFORMATION CONTACT: Robert R.

DeSpain, Chief, Air Programs Branch, Environmental Protection

Agency, Region VIII, 1860 Lincoln Street, Denver, CO 80295,

(303) 837-3471.

33a

SUPPLEMENTARY INFORMATION:

Introduction

The information in this notice is divided into five sections entitled

“INTRODUCTION, “BACKGROUND, “SIP DEFICIENCIES /

CONDITIONAL APPROVAL,” “PUBLIC COMMENTS ON

PROPOSAL, and “EPA ACTIONS.” This first section outlines the

development of the Colorado SIP revision. The “BACKGROUND”

section describes the Colorado SIP revision for each nonattainment

area. The “SIP DEFICIENCIES/CONDITIONAL APPROVAL”

section describes where the SIP is inadequate because it did not

accomplish enough and gives schedules and deadlines to correct

these deficiencies, and how some deficiencies cited in the proposal

were satisfied by the Governor’s supplemental submittals on July 5,

July 23, and July 27, 1979. The “PUBLIC COMMENTS ON

PROPOSAL” section summarizes relevant comments received on

the proposal and EPA’s response to them. The “EPA ACTIONS”

section explains EPA decision to approve, conditionally approve, or

take no action, on the SIP based on considerations discussed in the

two preceding sections.

The Colorado SIP revision was developed and submitted to EPA

in response to the requirements of Part D of the Act. In general, the

SIP is required to provide for attainment and maintenance of the

national ambient air quality standards (NAAQS) for all areas which

have been designated “nonattainment” pursuant to Section 107 of

the Act. Specific requirements for an approvable SIP are discussed in

detail in the April 4, 1979, Federal Register (44 FR 20372).

On March 3, 1978 (43 FR 8962) and on September 11, 1978 (43

FR 40419), pursuant to Section 107 of the Act, EPA designated

certain areas as nonattainment based on existing violations of the

NAAQS. The designated nonattainment areas in Colorado are

displayed in Table 1.

[Table omitted. ]

In accordance with Section 174 of the Act, primary responsibility

for preparing carbon monoxide (CO) and ozone control plans was

delegated by the Governor to organizations of local elected officials.

These organizations are the Pikes Peak Area Council of Govern-

ments (PPACG) for the Colorado Springs nonattainment areas the

Denver Regional Council of Governments (DRCOG) for the

Denver Region nonattainment areas, and the Larimer-Weld

Regional Council of Governments (LWRCOG) for Larimer and

Weld Counties. Designated regional planning agencies were

generally responsible for development of transportation control

34a

measures, which were coordinated with the transportation

planning process. The State was responsible for technical support to

designated agencies as well as for Inspection/ Maintenance (I/M)

programs, stationary source control, new source review and any

other programs encompassing areas beyond the authority of local

governments.

The locally prepared plans were submitted to the Colorado Air

Quality Control Commission (Commission) during fall of 1978.

The Commission modified each locally prepared plan prior to

incorporation into the SIP. The Commission deemed such changes

necessary to make the various locally prepared plans consistent with

each other, with State policy, and with Federal requirements.

Following a public hearing, the Commission adopted the SIP and

submitted it to the Governor of Colorado. The Governor submitted

the SIP to EPA on January 2, 1979. The submittal was followed by a

letter from the Governor on January 5, 1979, requesting time

extensions for certain areas for meeting the CO and/or ozone

standards.

In a January 19, 1979, letter to the Governor, EPA identified

several items which required clarification and others which were

omitted. On January 31, 1979, EPA received a partial response

from the Air Quality Control Division, the technical support orga-

nization within the Department of Health, which contained

information that was of assistance to EPA in its continuing review

and a schedule for submitting the additional required information.

In a meeting between EPA and State officials on March 13, 1979,

additional issues were raised by EPA. The Division responded by

submitting clarifying material to EPA on March 15, 1979. EPA

proposed action on the SIP revision in the Federal Register on May

11, 1979.

On July 5, 1979, the Governor submitted the final comments of

the commission with respect to issues raised in EPA’s proposed

action. On July 23, 1979, the Governor submitted, as part of the

SIP, House Bills 1109 (the revised Colorado Air Quality Control

Act), 1090 (amendments to the provision for burning solid wastes),

and Senate Bill 1 (provisions for reducing motor vehicle emissions).

At this time, EPA is taking no action on House Bill 1109 but will

soon propose action in the Federal Register to invite comments on

its acceptability. On July 27, 1979, the Governor submitted the

DRCOG schedules for implementation of the transportation

control strategies. Action is proposed on these schedules and on the

35a

schedules for Larimer-Weld elsewhere in today’s Federal Register.

Background

The following discussion describes the nature of the air quality

problems, the SIP revision for each nonattainment area, and related

regulations.

For the areas where the Governor has requested redesignations,

Larimer-Weld (primary TSP, ozone) and Colorado Springs (ozone),

EPA has chosen to take no action on these portions of the SIP.

Colorado Springs Area

1. Carbon Monoxide. The Colorado Springs plan_ predicts

attainment of the 8-hour CO standard during 1985 with imple-

mentation of the Federal Motor Vehicle Emission Control Program

(FMVECP), an I1/M program yet to be adopted, the Federal high

altitude emission standards to be adopted for model year (MY)

1981, and the transportation control measures that are currently

programmed for implementation. The plan also predicts

reasonable further progress (RFP) towards attainment. The

transportation control measures include transit improvements,

improved carpool locator service, and traffic flow improvements.

The PPACG conducted a preliminary screening of all the trans-

portation control measures in section 108(f) of the Act and

determined that certain measures required more study before a

specific commitment to implement them could be made.

Consequently, the plan provides that some of the measures will be

analyzed and implemented prior to 1982 if they are found to be

feasible for the area. The remaining measures will be analyzed as

part of the long term transportation planning process with the

completion of the analyses scheduled for February 1980; and

implementation expected prior to 1985.

The City Council and County Commissioners adopted the CO

plan. The schedules for developing and implementing measures

that were provided in the locally prepared plan also constitute a

commitment to implement the plan and to provide adequate

resources.

Denver Area

I. Nitrogen Dioxide. The Denver area plan predicts attainment

of the standard by 1982 as a result of the FMVECP. The NOz pre-

diction was made using a linear rollback model.

Il. Carbon Monoxide and Ozone. The analysis in the Denver

36a

plan predicts attainment of the 8-hour CO standard in 1987. This

estimate assumes no additional controls beyond the FM VECP, and

1/M program yet to be adopted, Regional Transportation District

(RTD, Denver's public transit operator) Transit Development Plan

(TDP), and the DRCOG carpool locator service. However, an addi-

tional 43% reduction would still be needed to achieve the standard

by 1982.

Based on the same assumptions used in the CO modeling, the

predicted 1987 ozone concentration exceeds the standard. Based on

the predicted ozone concentrat.on in 1982, an additional reduction

of about 19% would still be necessary to meet the standard. A

different set of assumptions was used in additional analyses

(submitted July 27, 1979) which do show attainment by 1987.

The transportation measures included in the plan are commit-

ments to either implement or study an expanded I/ M program and

possible implementation of retrofit (study), EPA implementation of

the high altitude standards, smoking vehicle ordinances, TDP

implementation and analysis by RTD of alternate funding sources,

employer based incentives for ridesharing, variable work hours

(study and demonstration), vanpool demonstration program,

expanded carpool matching service, bicycle plan implementation

and demonstration project, revised transportation project pro-

gramming process to provide priority to air quality projects, high

occupancy vehicle (HOV) lane study and implementation (where

feasible), no drive day, Sante Fe Drive HOV lane, parking

management plan, and land use assessment handbook (CO hotspot

analysis).

Larimer-Weld Area. . .

Il. Carbon Monoxide. The Larimer-Weld plan analysis predicts

attainment of the CO standard by 1986 and 1984 in Fort Collins

and Greeley, respectively, with implementation of the FMVECP, an

I/M program yet to be adopted, and the adopted transportation

control measures.

The transportation control measures in Section 108(f) adopted

for implementation by the City of Greeley by 1982 are improved

public transit, bicycle lanes, staggered work hours, vehicle fleet

controls, and traffic flow improvements.

The measures adopted for implementation by the City of Fort

Collins by 1982 are improved public transit, expanded carpool

locator service, bicycle lanes, and traffic flow improvements at

specified locations.

37a

A commitment to implement the adopted control measures and

to provide the resources needed to carry out the plan is provided in

the form of resolutions adopted by each city and by LWRCOG.

State Regulations

Section 172 of the Act requires that reasonably available control

technology (K .CT) be applied to existing stationary sources of air

pollution in nonattainment areas. The Commission has eleven (11)

air pollution control regulations of which three (3) must satisfy this

RACT requirement. Regulation 1, which controls particulates,

visible emissions, and sulfur oxides from stationary sources was

revised for existing sources of sulfur oxides and for existing iron and

steel facilities. Regulation 5 contains requirements for the control of

existing alfalfa dehydration plants. Regulation 7, whic.. provides

for control of volatile organic compounds, was revised extensively.

In addition to the RACT requirements, Regulation 3, which

includes the new stationary source review program, was revised to

be consistent with the requirements of Section 173 of the Act.

Regulation 9 requires large employers to offer incentives to

employees to commute to and from work in other than single

occupant vehicles. The incentives include providing information on

bus routes, providing preferential parking to carpools and

vanpools, and providing bicycle parking facilities. Regulation 10

establishes criteria that will be used to determine whether transpor-

tation projects and programs conform to the SIP as required under

Section 176(c) of the Act and pursuant to Department of

Transportation requirements in 23 U.S.C. 109(j) and 23 CFR Part

770. EPA is deferring action on Regulation 10 and will propose

approval or disapproval in the near future. Regulation !1 provides

requirements for the licensing and certification of inspectors,

inspection facilities and emission measurement equipment for the

inspection/ maintenance program.

SIP Deficiencies /Conditional Approval

This section contains a discussion of deficiencies identified by

EPA in the May 11, 1979, proposed rulemaking and during the

public comment period, and includes deadlines and schedules to

correct them.

These deficiencies are summarized first by portions of the SIP that

apply statewide and were prepared by the Commission, and then by

local plans prepared by the regional planning agencies. Also

included in this section are clarifications by the Commission on

38a

deficiencies raised in the proposed rulemaking.

State-Developed SIP Provisions

I. Inspection/ Maintenance. Section 172(b)(11)(B) of the Act

requires that when the necessity for an extension for the attainment

date for ozone in Denver and CO in Denver, Colorado Springs, and

Larimer-Weld from 1982 up to 1987 has been demonstrated, the

State must establish a specific schedule for implementing a motor

vehicle I/M program. The Commission has demonstrated the need

for an extension for CO and ozone in these areas. The Colorado

legislature, in recognition of the need for an 1/M program in these

areas, passed Colorado Senate Bill 1 (as amended June 8, 1979).

This bill initiates a program on January 1, 1981, for the Denver,

Colorado Springs and Larimer-Weld metropolitan areas including a

total of nine counties for 1968-79 model years. The bill also

describes how the State will consider program alternatives.

However, Colorado Senate Bill 1, as amended June 8, 1979, does

not provide adequate enabling authority to establish an effective

I/M program and cannot be unconditionally approved by EPA.

The reasons for this are as follows:

1. Colorado Senate Bill 1 does not provide for a re-test after

required adjustments are performed. Without such a re-test there is

no way of confirming that the adjustments will be correctly

performed, or if additional maintenance is required to bring a

vehicle into compliance. There is also no provision for additional

maintenance to ensure this compliance. Because of these

deficiencies, it has not yet been shown that the emission reductions

presumed in the plan will result.

2. Colorado Senate Bill 1 contains no emission standards nor

does it provide authority to establish such standards to determine

pass or fail of a motor vehicle. Without emission standards, an 1/M

program is not enforceable. Rather, the Bill directs the Commission

to recommend standards to the legislature, which must approve

such standards by legislation. Also Senate Bill 1 provides that all

regulations adopted by the Commission expire on June 1 of the

following year unless specifically approved by the legislature. Both

these problems could impede the implementation and continued

operation of an effective 1/M program.

3. The program outlined in Senate Bill 1 may not be appropriate

for 1981 and later model year vehicles since significant changes in

automotive emission control technology will result in the partial or

complete elimination of the adjustments specified in the Bill.

39a

In addition to these deficiencies, the Colorado I/M program also

lacks the following:

1. Schedules (milestones, dates, responsible agency) to

implement the following I/M_ program elements; a_ public

information program, certification of full legislative authority to

carry out the program (including emission standards), initial

notification of garages explaining the program and a schedule of

implementation, initiation of construction of referee facilities,

completion of construction of referee facilities, adoption of

procedures for certification of inspection stations, completion of

equipment purchase and delivery of equipment, initiation of hiring

and training of inspectors or licensing of garages, initiation of

introductory program (voluntary maintenance with either

voluntary or mandatory inspection) if not previously initiated,

initiation of mechanics training and/or information program,

initiation of mandatory inspection, initiation of mandatory repair

for failed vehicles, and establishment of quality control procedures.

2. Provisions for recordkeeping, submittal of appropriate

records by inspection facilities, and periodic and unannounced

inspections of facilities.

3. A demonstration of an commitment to at least a 25% re-

duction in light duty vehicle exhaust emissions of carbon monoxide

and hydrocarbons by December 31, 1987, compared to what the

total emissions would be without the 1/M program.

4. A commitment to implement and enforce the program.

Colorado Senate Bill 1 authorizes a study to compare the effec-

tiveness of an emissions control program which requires motor

vehicles to be inspected for exhaust gas emissions by means of an

infrared analyzer with a program requiring adjustment of all motor

vehicles to certain manufacturer's specifications in order for vehicles

to obtain a certification of emission maintenance. The study will

examine the use of exhaust gas emission standards designed to

ensure no less than twenty, thirty, or forty percent of the vehicles fail

such standards, and which requires vehicles which fail such inspec-

tion to be repaired to comply with such standards.

In addition, Senate Bill 1 contains a commitment that the study

will be completed by January 1, 1980, and the general assembly will

review the results of the study and pass appropriate additional

legislation by March 1, 1980, to meet Act requirements.

EPA considers that the State is committed to adopting an accept-

able program based on the results of the above study by March 1,

1980, and that this represents progress toward submitting a plan. It

40a

is clear, however, that the program passed by the legislature does not

meet the requirements of the Clean Air Act and additional action by

the legislature is essential. There was misunderstanding on the part

of some of the legislators concerning whether EPA could approve

the program established in Senate Bill 1. Thus, EPA considers that

the State of Colorado has satisfied the condition for an extension of

the deadline for certification of adequate legal authority for an 1/M

program to March 1, 1980 (44 FR 20377, footnote 27, April 4,

1979). Therefore, EPA conditionally approves this part of the SIP if

adequate I/M legal authority is certified by March 1, 1980, and

submitted to EPA, along with materials correcting the other

identified deficiencies. The conditional approval is based on the

State meeting the following schedule:

January 1, 1980 — Senate Bill 1 study completed,

submitted to legislature.

January 12, 1980 — I/M included on list of Governor's

Call items for the 1980 legislative session.

February 1, 1980 — Study results in the form of a draft

final report reported to legislature.

February 1, 1980 — Bill introduced in the legislature —

copy submitted to EPA.

March 1, 1980 — Submission to EPA of legislation

signed into law by the Governor, as well as schedules

(milestones, dates, responsible agency) to implement

the I/M program and corrections to other noted defi-

ciencies.

A notice soliciting public comment on the acceptability of this

schedule appears elsewhere in today’s Federal Register.

Clarification by Commission

On July 5 and July 27, 1979, the Governor submitted final

comments by the Commission on issues identified in EPA’s

proposal. This information helped clarify some of the issues. These

clarifications are as follows:

Il. Expeditious Attainment. Sections 172(a)(2) and 172(b)(11)

ozone and CO standards as expeditiously as practicable, but no

later than December 31, 1987, if a demonstration is made that

attainment is not possible by December 31, 1982.

The Commission revised the request for extensions of the attain-

4la

ment dates to reflect the actual expected dates of attainment of the

CO standard. This revised extension request submitted on July 5,

1979, seeks extension in CO attainment beyond the end of 1982 to

December 31, 1985, in Colorado Springs, to December 31, 1986, in

Fort Collins, and to December 31, 1984, in Greeley. EPA finds these

revised dates acceptable.

I. Denver Area Ozone and CO Attainment Demonstration.

The ambient ozone concentration predicted for Denver in 1987 was

0.127 ppm which exceeds the standard. Therefore, the measures

needed to show attainment were not provided. Also, EPA

considered the ozone improvement between 1982 and 1987 to lack

adequate technical justification.

Computer model “compliance runs” for carbon monoxide and

ozone have not yet been made due to the difficulties experienced by

the Division in obtaining the necessary vehicle travel pattern data

for 1982 and 1987. As a result, definitive RFP curves were not

submitted to EPA. Instead, a preliminary RFP curve for CO

attainment was provided which was based upon use of the

“rollback” analysis technique. The preliminary RFP curve for ozone

attainment reflected a commitment to attain the ozone standard by

the end of 1987, rather than any calculation of actual reductions

over time. It is recognized, however, that a “compliance run” and its

attendant analyses realistically could not be completed by July 1,

1979. In light of this situation, the Commission has prepared an

interim Ozone compliance assessment, using the linear

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.