Appendix — Mountain States Legal Foundation v. Costle

Office -Supreme Court, Us. |

ZILED

JAN 19 198)

ALEXANDER L. S.. VAS,

No. 80-1084 Leg

IN THE

Supreme Court of the United States

October Term, 1980

MountTAIN STATES LEGAL FOUNDATION, et al.,

Petitioners,

versus

DoucLas M. CosTLe,

IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

SUPPLEMENTAL APPENDICES TO

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

MOuNTAIN STATES LEGAL FOUNDATION

1200 LINCOLN STREET, SuITE 600

DENVER, COLORADO 80203

(303) 861-0244

ATTORNEYS FOR THE PETITIONERS

SUPPLEMENTAL APPENDICES

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 80-1084

MOUNTAIN STATES LEGAL FOUNDATION, et al.,”

Petitioners,

versus

DouGLas M. CostTLe

IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF

THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

“Representative James D. Reeves appeared as a petitioner before

the Tenth Circuit Court of Appeals. The list of parties on page itt

of the Petition for a Writ of Certiorari is amended to include Rep.

Reeves as a petitioner in this litigation.

7%

-ij-

TABLE OF CONTENTS

Page

APPENDIX C

ORDER DENYING THE PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC........... |

APPENDIx D

CONSTITUTIONAL AND STATUTORY PROVISIONS. ....... 2

Clean Air Act

Section 110,42 U.5.C, § PAO... oi senha oe 2

Section 472,42 USA § TOOK. os ccs hve vans 3

Secteon 176,42 U.S.C. § 7906). soins vsewcen 4

Section 30/7, EUSA. § FOO oss vex veces sage 5

Section 316, 42 U.S.C. 4 7606... 6500 ers snes 6

United States Constitution

Te, cena 4: es ssc add 0s5%5k eee 7

OTT Te eT PPE re or 7

RINE TY os o.06 0 oc diene eee 7

PURINE Fes. 503k ein dwak age eee 8

NOTE: Appendices A & B are bound with the Petition for

Certiorari.

1

APPENDIX C

SEPTEMBER TERM — OCTOBER 6, 1980

Before Honorable Oliver Seth, Chief Judge, Honorable Williams

J. Holloway, Jr., Honorable Robert H. McWilliams, Honorable

James E. Barrett, Honorable William E. Doyle, Honorable

Monroe G. McKay, Honorabie James K. Logan and Honorable

Stephanie K. Seymour, Circuit Judges.

MOouNTAIN STATES LEGAL FOUNDATION,

etc., et al.

Petitioners,

VS.

DouG as M. CosTLeE, et al.,

Respondents.

STATE OF COLORADO ex rel.

J.D. MACFARLANE,

Petitioner-Intervenor.

)

)

)

)

)

)

) No. 79-2261

)

)

)

)

)

)

This matter comes on for consideration of petitioners’ petition for

rehearing and suggestion for rehearing en banc in the captioned

. Cause.

Upon consideration whereof, the petition for rehearing is denied

by the panel to whom the case was argued and submitted.

The petition for rehearing having been denied by the panel to

whom the case was argued and submitted, and no member of the

panel nor judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc, Rule 35,

Federal Rules of Appellate Procedure, the suggestion for rehearing

en banc is denied.

Howard K. Phillips, Clerk

a

APPENDiIx D

CONSTITUTIONAL AND STATUTORY PROVISIONS

SECTION 110, 42 U.S.C. §7410 — STATE IMPLEMENTATION PLANS:

(a) Submission to Administrator; time; procedures; contents;

approval of revised plan.

(1) Each State shall, after reasonable notice and public

hearings, adopt and submit to the Administrator,. ..a plan

which provides for implementation, maintenance, and

enforcement of such primary standard in each air quality

control region (or portion thereof) within such State... .

(2) The Administrator shall, within four months after the date

required for submission of a plan under paragraph (1), approve

or disapprove such plan or each portion thereof. The

Administrator shall approve such plan, or any portion thereof,

if he determines that it was adopted after reasonable notice and

hearing and that —

(G) it provides, to the extent necessary and practicable, for

periodic inspection and testing of motor vehicles to enforce

compliance with applicable emmission standards;

(I) it provides that after June 30, 1979, no major stationary

source shall be constructed or modified in any

nonattainment area (as defined in section 171(2)) to which

such plan applies, if the emissions from such facility will

cause or contribute to concentrations of any pollutant for

which a national ambient air quality standard is exceeded in

such area, unless, as of the time of application for a permit

for such construction or modification, such plan meets the

requirements of part D (relating to nonattainment areas);

(3)(A) The Administrator shall approve any revision of an

implementation plan applicable to an air quality control region

if he determines that it meets the requirements of paragraph (2)

and has been adopted by the State after reasonable notice and

public hearings.

3

(c) Preparation and publication of proposed regulations; hearings;

promulgation of regulations.

(1) The Administrator shall, after consideration of any State

hearing record, promptly prepare and publish proposed regula-

tions setting forth an implementation plan, or portion thereof,

for a State if —

(A) the State fails to submit an implementation plan which

meets the requirements of this section.

(B) the plan, or any portion thereof, submitted for such

State is determined by the Administrator not to be in

accordance with the requirements of this section, or

(C) the State fails, within 60 days after notification by the

Administrator or such longer period as he may prescribe, to

revise an implementation plan as required pursuant to a

provision of its plan referred to in subsection (a)(2)(H).

The Administrator shall, within six months after the date

required for submission of such plan (or revision thereof),

promulgate any such regulations unless, prior to such promul-

gation, such State has adopted and submitted a plan (or

revision) which the Administrator determines to be in accor-

dance with the requirements of this section.

SECTION 172, 42 U.S.C. § 7502 — NONATTAINMENT PLAN

PROVISIONS:

(a) (1) The provisions of an applicable implementation plan

for a State relating to attainment and maintenance of national

ambient air quality standards in any nonattainment area which

are required by section 110(a)(2)(I) as a precondition for the

construction or modification of any major stationary source in

any such area on or after July 1, 1979, shall provide for

attainment of each such national ambient air quality standard

in each such area as expeditiously as practicable, but, in the case

of national primary ambient air quality standards, not later

than December 31, 1982.

(2) In the case of the national primary ambient air quality

standard for photochemical oxidants or carbon monoxide (or

both) if the State demonstrates to the satisfaction of the

Administrator (on or before the time required for submission of

4

such plan) that such attainment is not possible in an area with

respect to either or both of such pollutants within the period

prior to December 31, 1982, despite the implementation of all

reasonably available measures, such provisions shall provide

for the attainment of the national primary standard for the pol-

lutant (or pollutants) with respect to which such demonstration

is made, as expeditiously as practicable but not later than

December 31, 1987.

(b) The plan provisions required by subsection (a) shall —

(11) in the case of plans which make a demonstration pursuant

to paragraph (2) of subsection (a) —

(B) establish a specific schedule for implementation of a

vehicle emission control inspection and maintenance

program.

SECTION 176, 42 U.S.C. § 7506 — LIMITATIONS ON CERTAIN

FEDERAL ASSISTANCE:

(a) The Administrator shall not approve any projects or award any

grants authorized by this Act and the Secretary of Transporta-

tion shall not approve any projects or award any grants under

title 23, United States Code, other than for safety, mass transit,

or transportation improvement projects related to air quality

improvement or maintenance, in any air quality control

region—

(1) in which any national primary ambient air quality standard

has not been attained,

(2) where transportation control measures are necessary for

the attainment of such standard, and

(3) where the Administrator finds after July 1, 1979, that the

Governor has not submitted an implementation plan which

considers each of the elements required by section 172 or that

reasonable efforts toward submitting such an implementation

plan are not being made (or, after July 1, 1982, in the case of an

implementation olan revision required under section 172 to be

submitted before July 1, 1982).

5

(b) In any area which the State or, as the case may be, the general

purpose local government or governments or any regional

agency designated by such general purpose local governments

for such purpose, is not implementing any requirement of an

approved or promulgated plan under section 110, including

any requirement for a revised implementation plan under this

part, the Administrator shall not make any grants under this

Act.

No department, agency, or instrumentality of the Federal

Government shall (1) engage in, (2) support in any way or pro-

vide financial assistance for, (3) license or permit, or (4)

approve, any activity which does not conform to a plan after it

has been approved or promulgated under section 110. No

metropolitan planning organization designated under section

134 of title 23, United States Code, shall give its approval to any

project, program, or plan which does not conform to a plan

approved or promulgated under section 110. The assurance of

conformity to such a plan shall be an affirmative responsibility

of the head of such department, agency, or instrumentality.

Each department, agency, or instrumentality of the Federal

Government having authority to conduct or support any pro-

gram with air-quality related transportation consequences shall

give priority in the exercise of such authority, consistent with

statutory requirements for allocation among States or other

jurisdictions, to the implementation of those portions of plans

prepared under this section to achieve and maintain the

national primary ambient air quality standard. This paragraph

extends to, but is not limited to, authority exercised under the

Urban Mass Transportation Act, title 23 of the United States

Code, and the Housing and Urban Development Act.

SECTION 307, 42 U.S.C. § 7607 — ADMINISTRATIVE PROCEEDINGS

AND JUDICIAL REVIEW:

(b) (1)...A petition for review of the Administrator’s action in

approving or promulgating any implementation plan under

section 110 or section 111(d), any order under section 111(j),

under section 112(c), under section 113(d), under section 119,

or under section 120, or his action under section 119(c)(2)(A),

(B), or (C) (as in effect before the date of enactment of the Clean

Air Act Amendments of 1977) or under regulations thereunder,

or any other final action of the Administrator under this Act

6

(including any denial or disapproval by the Administrator

under title I) which is locally or regionally applicable may be

filed only in the United States Court of Appeals for the

appropriate circuit. Notwithstanding the preceding sentence a

_ petition for review of any action referred to in such sentence

may be filed only in the United States Court of Appeals for the

District of Columbia if such action is based on a determination

of nationwide scope or effect and if in taking such action the

Administrator finds and publishes that such action is based on

such a determination. Any petition for review under this

subsection shall be filed within sixty days from the date notice

of such promulgation, approval, or action appears in the

Federal Register, except that if such petition is based solely on

grounds arising after such sixtieth day, then any petition for

review under this subsection shall be filed within sixty days after

such grounds arise.

SECTION 316, 42 U.S.C. § 7616 — SEWAGE TREATMENT GRANTS:

(a) No grant which the Administrator is authorized to make to any

applicant for construction of sewage treatment works in any

area in any State may be withheld, conditioned, or restricted by

the Administrator on the basis of any requirement of this Act

except as provided in subsection (b).

(b) The Administrator may withhold, condition, or restrict the

making of any grant for construction referred to in subsection

(a) only if he determines that —

(1) such treatment works wiil not comply with applicable

standards under section 111 or 112,

(2) the State does not have’ in effect, or is not carrying out, a

State implementation plan approved by the Administrator

* uich expressly quantifies and provides for the increase in

emissions of each air pollutant (from stationary and mobile

sources in any area to which either part C or part D of title |

applies for such pollutant) which increase may reasonably be

anticipated to result directly or indirectly from the new sewage

treatment capacity which would be created by such construc-

tion.

7

(3) the construction of such treatment works would create new

sewage treatment capacity which —

(A) may reasonably be anticipated to cause or contribute

to, directly or indirectly, an increase in emiss‘ons of any air

pollutant in excess of the increase provided for under the

provisions referred to in paragraph (2) for any such area, or

(B) would otherwise not be in conformity with the appli-

cable implementation plan,

In the case of construction of a treatment works which would

result, directly or indirectly, in an increase in emissions of any

air pollutant from stationary and mobile sources in an area to

which part D of title I applies, the quantification of emissions

referred to in paragraph (2) shall include the emissions of any

such pollutant resulting directly or indirectly from areawide and

nonmajor stationary source growth (mobile and stationary) for

each such area.

UNITED STATES CONSTITUTION, ARTICLE IV, SECTION 4:

The United States shall guarantee to every State in this Union a

Republican Form of Government, and shall protect each of

them against Invasion; and on Application of the Legislature, or

of the Executive (when the Legislature cannot be convened)

against domestic Violence.

UNITED STATES CONSTITUTION, AMENDMENT I:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the people

peaceably to assemble and to petition the Government for a

redress of grievances.

UNITED STATES CONSTITUTION, AMENDMENT V:

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces, or

in the Militia, when in actual service in time of War or public

dang *r: nor shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be

8

deprived of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without just

compensation.

UNITED STATES CONSTITUTION, AMENDMENT X:

The powers not delegated to the United States by the Constitu-

tion, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.