# Petition — Mountain States Legal Foundation v. Costle > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1058%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 1050 ## Text 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? (c) chilling legislative expression and compelling political 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? (c) placing a moratorium on new industrial construction “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. a -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.......... 3. 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 11 -\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 rs -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. 2 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. 3 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 6 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 8 852. 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 9 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: 10 [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 ll 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 12 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.” 13 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- 14 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- 15 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). 16 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. V7 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. 18 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). 19 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. 20 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 21 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 22 (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. a3 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 la 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 2a 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. 3a 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- 4a 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 Sa 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. 6a 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, 7a 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 - Sa 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 9a 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 Kn 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. I. 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 A [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1058%3A1. Public record. Not legal advice.