Opposition — Mountain States Legal Foundation v. Costle

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No. 80-1084 MAR 18 498]

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In the Supreme Court of the United States ;

OCTOBER TERM, 1980

MOUNTAIN STATES LEGAL FOUNDATION,

ET AL., PETITIONERS

Vv.

DOouGLAS M. COSTLE, IN HIS OFFICIAL CAPACITY AS

ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

WADE H. McCRreEE, JR.

Solicitor General

ANGUS MACBETH

Acting Assistant Attorney General

EDWARD J. SHAWAKER

BARBARA H. BRANDON

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

ty

QUESTIONS PRESENTED

1. Whether the EPA Administrator’s final approval of

the Colorado air quality standard state implementation

plan (SIP) has mooted petitioners’ challenge to the condi-

tional approval that the Secretary had previously granted.

2. Whether the court of appeals erred in holding that

petitioners lacked standing to challenge the Administrator’s

conditional approval of the Colorado SIP.

(I)

TABLE OF CONTENTS

EES Ee ee a er l

eevee dbencoeces l

ACC R RG RASe eb es bee eb ee vosececceces 9

EE 16

TABLE OF AUTHORITIES

Cases:

Amoco Oil Co. v. EPA, 501 F. 2d 722 .......... 2

rr er OP, BED Cocco ccecccceveces 14

Brown v. EPA, 521 F. 2d 827,

vacated and remanded, 431 U.S. 99,

opinion on remand, 566 F 2d 665 ......... 5,13

er ee. MSS cocccccccccces 5,13

De Funis v. Odegaard, 416 U.S.312 ........... 10

District of Columbia v. Train, 521 F. 2d 971,

vaced and remanded sub nom.

ee Oy ee, B28 U.S. FD nccccccccccces 5, 13

og re 5, 11, 13

Fullilove v. Klutznick, No. 78-1007

DE ee Se 14

Friends of the Earth v. Carey, 552 F. 2d 25,

> Se 14

Gallagher v. Continental Insurance Co.,

ee idee cédcosccesce 11

Goldwater v. Carter, 444 U.S. 996 .........ccceeee

Lamm v. Volpe, 449 F. 2d 1202 .............4.. 11

National League of Cities v. Usery,

ee eLd. bese neceneecoeses 12, 13

III

PREVIOUS PAGE WAS BLANK |

IV

Page

Cases—Continued:

National Resources Defense Council, Inc. v.

ae 4

Oklahoma vy. Civil Service Commission,

Ne ees cet ed bee esevees 14

SW PPL ED UL. SPS ccc ccc cc ccceccces 10

State of Maryland v. EPA,

ES 5

State of Texas v. EPA, 499

re 1]

Steward Machine Co. v. Davis,

ee akan scceeeeses 14

Train v. National Resources Defense

EE re 2

United States v. O’Brien, 391

EE EE Ee 14

Weinstein v. Bradford, 423 U.S. 147 ........... 10

Constitution, statutes and regulations:

United States Constitution:

Article IV, Section 4,

I sg cy eke ces seesescees 7,9, 14

Nee i kb keeaee ss 7,9, 14

Ee ee 7,9

pe tem 20, 94

Clean Air Act, 42 U.S.C. 1857 et seq. :

EE, BOTOE vee ccecess ee ta hig alg I

7%

42 U.S.C.

42 U.S.C.

42 U.S.C.

42 U.S.C.

42 U.S.C.

42 U.S.C.

V

Page

Constitution, statutes and regulations—Continued:

SPEED bh Sins ec ce deere cewiss 2

ye es EL) |) i re 2

1ESTOSIAN ZAM) cccccsscccsee l

PEPOUIEED Gabeeressdertcos tees 2

1857c-5(a)(2)(B) and (G) ......... 2

oS ey errr eres rere 2

ree eee 2

42 U.S.C.

Clean Air Act Amendments of 1977, Pub. L. No.

95-95, 91 Stat. 685, 42 U.S.C.

(Supp. III) 7401 et seq. :

42 U.S.C. (Supp. III) 7401 note

42 U.S.C. (Supp. III)

7410(a)(2)(1)

42 U.S.C. (Supp.

42 U.S.C. (Supp.

42 U.S.C. (Supp.

42 U.S.C. (Supp.

42 U.S.C. (Supp.

42 U.S.C. (Supp.

42 U.S.C. (Supp.

42 U.S.C. (Supp.

42 U.S.C. (Supp.

42 U.S.C. (Supp.

42 U.S.C. (Supp.

acd sd anes oes 4,6, 7, 10, 15

SREP SEEEEOT Bid ie ecdevsess 6

ie |) 1 15

FEE) FP ESIOUD sc ckecceeen 3

ijk. 3" | Sarre 3

TEED vos cesses 15

Se TAD cesvcvess'es 4

i Neer 6

111) 7502( BZ) ».. 0. eee eens 4

FES) TAPERMTOD vi vevecnes 4

III) 7502(b)(11)(B) ........ 4

III) 7506(a) ... 5, 7, 10, 14, 15

re

VI

Page

Constitution, statutes and regulations—Continued:

Pe Sas CE: SEED FOE vce cvevscoencoens 6

42 U.S.C. (Supp. III) 760l(ay(l) .......... 16

GE A) he, CHMOD. TTI) TG16 nc ccc cscccees 14

42 U.S.C. (Supp. II]) 7616(b) ......... 5,7, 10

42 U.S.C. (Supp. III) 7616(b)(2) .......... 15

Be Gl ee PEROT 5 cake cicccviscedessens 2

Ree EE BU MUMESD dot v cd ccivscccccéccves 3

SR EMP OSs iswSe-evewercossecveenses 2

Ey EE DE CIPIED ps ccscecclosecceséonss 3

Miscellaneous:

ED cc ccsecsccccccoess 4

oe 3

SI Fed. Reg, oases a00 (1976) nce sccccccce 3

43 Fed. Reg. 8975-8976, 40419 (1978) ........... 6

44 Fed. Reg. 57401-57409 (1979) ............... 6

ree 8

oo re 8

oe Se 10

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

ee is spb hese eee 4

H.R. Conf. Rep. No. 95-294, 95th Cong.,

Ne eee we 15

S. Rep. No. 95-127, 95th Cong., ist Sess.

eee ALCS bc oc aWka sees es hs ee et 15

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1084

MOUNTAIN STATES LEGAL FOUNDATION,

ET AL., PETITIONERS

Vv.

DOouGLAS M. COSTLE, IN HIS OFFICIAL CAPACITY AS

ADMINISTRATOR OF THE UNITED: STATES ENVIRONMENTAL

PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-29a) is

reported at 630 F. 2d 754.

STATEMENT

la. Under Section 109 of the Clean Air Act , 42 U.S.C.

1857c-4, the Administrator of the Environmental Protec-

tion Agency (EPA) is responsible for establishing two

, sets of nationwide ambient air quality standards. The

“primary” ambient standards! for each designated pollu-

tant, designed to protect the public health, were to be

?

'Secondary standards were to be met within “a reasonable time.’

42 U.S.C. 1857c-5(a)(2 Aii).

(1)

2

achieved no later than 1975. 42 U.S.C. 1857c-5(a)(2)(A)(i);

see Train v. National Resources Defense Council, Inc., 421

U.S.C. 60, 64-67 (1975). Each state was required to submit

to the Administrator for approval a state implementation

plan (SIP) for “implementation, maintenance, and enforce-

ment” of the air quality standards for every portion of the

state. 42 U.S.C. 1857c-5(a)(1). If the Administrator found

the plan inadequate, or if the state declined to submit a plan,

the Administrator ultimately was required to promulgate a

federal plan for the state.42 U.S.C. 1857c-5(c). Each SIP

must include emission limitations for stationary pollution

sources, schedules for compliance, and provisions for such

additional methods of pollution control as are necessary.

The Act also provides that each SIP must include measures

designed to reduce pollution from motor vehicles, including

automobile inspection and maintenance (“I/ M”), and other

trnasportation control programs if necessary to insure

attainment and maintenance of the national standards. 42

U.S.C. 1857c-5(a)(2)(B) and (G).?

b. By 1976, it had become clear that many areas of the

country had failed to attain the primary ambient air quality

standards by the 1975 statutory deadline. A then-existing

EPA regulation, 40 C.F.R. 51.18(b) (1976), on its face

prohibited construction of any major source of pollution in

any area in which the standards for any pollutant generated

by the source were not being met. EPA modified this posi-

?These latter provisions tie into another key aspect of the Act. In

Section 202(b), 42 U.S.C. 1857f-1(b), Congress established tail-

pipe emission standards for new motor vehicles manufactured after

certain dates. These standards required substantial reductions in car-

bon monoxide, hydrocarbon, and nitrogen oxide vehicle ernissions.

The scheme is further supplemented by EPA’s program requiring the

marketing of lead free gasoline to protect the catalytic converters

installed in late model cars. 42 U.S.C. 1857f-6c; 40 C.F.R. Pait 80; see

Amoco Oil Co. v. EPA, 501 F. 2d 722 (D.C. Cir. 1974).

’%

3

tion by publication of an interpretative rule on December

21, 1976, construing that regulation to permit certain major

sources of pollution to be put into operation in nonattain-

ment areas in certain situations. 41 Fed. Reg. 55524-55530

(1976); 40 C.F.R. Part 51 (1976). Under the interpretative

rule, known as the “emission offset” ruling, a new source

was permitted if emissions from existing sources were to be

reduced by an amount greater than the incremental increase

in pollution from the new source, if the new source was held

to the lowest achievable rate of emissions, and if the appli-

cant for the permit owned no other source that violated the

applicable SIP. EPA also requested the states to develop

revised SIP strategies for areas in which the air quality

standards were not being met. See 41 Fed. Reg. 28600

(1976).

c. In the Clean Air Act Amendments of 1977, Pub. L.

No. 95-95, 91 Stat. 746-751, Congress added a new Part D

to Title I of the Act (42 U.S.C. (Supp. III) 7501-7508)

applicable to “nonattainment areas” in which national

ambient air quality standards had not been met. Under Part

D, the deadlines for attainment of the primary ambient air

quality standards for most pollutants were extended until

December 31, 1982. To ensure that these new deadlines

would be met, Congress required that states submit to EPA

substantially revised SIP’s for nonattainment areas by Jan-

uary 1, 1979. Clean Air Act Amendments of 1977, Section

129(c), 42 U.S.C. (Supp. III) 7502 note. If these revisions

met the requirements of the Act, they were to be approved

by EPA by July 1, 1979.

Congress was also concerned that new sources not be

constructed in nonattainment areas ina manner that would

exacerbate existing violations while the states were formu-

lating their revised plans. Therefore, Congress expressly

ratified EPA’s emission offset ruling, but directed that it be

applied only until July |, 1979. Section 129(a)(1) of the 1977

Amendments, 42 U.S.C. (Supp. III) 7502 note. For later

4

periods, Congress required each state to include in its SIP,

by August 1978,3 a provision imposing a limited morato-

rium on construction or modifications of major stationary

sources after July 1, 1979. The moratorium was to affect

only sources that would emit 100 tons or more per year of a

pollutant for which the national ambient air quality stand-

ard was being violated in a particular area, and it was to

operate only until a revised SIP complying with the provi-

sions of Part D was approved or promulgated by EPA. See

42 U.S.C. (Supp. III) 7410(a)(2)(1).

Widespread failure to attain air quality standards by 1975

for pollutants generated primarily by automobiles, such as

carbon monoxide and photochemical oxidants (ozone),

posed a special problem. In 1977, therefore, Congress auth-

orized EPA to grant limited extensions, until December 31,

1987, for meeting these two standards. 42 U.S.C. (Supp. III)

7502(a)(2). To minimize adverse health effects, however,

Congress required that any state receiving such an exten-

sion must include an enforceable automobile inspection

and maintenance (I/M) program in its revised SIP and

implement this program “as expeditiously as practicable,”

but no later than 1982. 42 U.S.C. (Supp. III) 7502(b)(2),

7502(b)(10) and 7502(b)(11)(B). See H.R. Rep. No. 95-294,

95th Cong., Ist Sess. (1977).

Congress was aware that many states had yet to adopt

transportation control measures, including I/ M, and that

this problem had generated considerable litigation. See

H.R. Rep. No. 95-294, supra, at 286-291.4 Prompted by

‘This date is established by Section 406(d)(2) of the 1977 Amend-

ments, 42 U.S.C. (Supp. Ill) 7401 note.

‘In 1974, acting pursuant to a court order in National Resources

Defense Council, Inc. v. EPA, 475 F. 2d 968 (D.C. Cir. 1973). the

Administrator required states needing transportation control plans

to amend their SIPs to include such plans. 38 Fed. Reg. 2194 (1973).

When several states failed or refused to adopt these amendments, the

Administrator promulgated federal transportation control plans

5

suggestions in several of the relevant court decisions that

withholding of federal funds would be a both useful and

constitutionally permissible incentive for state participa-

tion,> Congress conditioned certain federal grants upon a

State’s satisfactory participation in the SIP program. Under

42 U.S.C. (Supp. III) 7506(a), where transportation control

measures are needed, the revised SIP has not been approved

by July 1, 1979, and reasonable efforts to submit such an

SIP have not been made, EPA “shall not approve” grants

otherwise authorized by the Clean Air Act, and the Secre-

tary of Transportation shall not award certain highway

grants. In addition, under 42 U.S.C. (Supp. III) 7616(b),

grants for sewage treatment works may be withheld or

restricted if the state does not have an approved SIP which

accounts for the increases in air pollution caused by the

sewage works or the residential, commercial, or vehicular

growth made possible by the sewage works.

d. Many states that had nonattainment areas did not

submit revised SIPs to EPA by July 1, 1979. Some of these

for those states, including an inspection and maintenance program for

motor vehicles, and he ordered the states to adopt implementing legisla-

tion. Several states challenged EPA’s authority under the Clean Air Act

and the Constitution to adopt such transportation measures. See, e.g.,

Brown v. EPA, 521 F. 2d 827 (9th Cir. 1975) (Brown I); State of

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

Train, 521 F. 2d 971 (D.C. Cir. 1975). These cases were vacated and

remanded by this Court as moot after EPA conceded that the federal

regulations had to be modified to remove the requirement that the state

adopt implementing laws. EPA v. Brown, 431 U.S. 99 (1977). There-

after, the Ninth Circuit again held that EPA lacked statutory authority

under the Act to bring enforcement actions against the states for failure

to implement the federally promulgated SIP requirements involved in

this case. Brown v. EPA, 566 F. 2d 665 (9th Cir. 1977) (Brown II).

‘See, e.g., Brown I, supra, 521 F. 2d at 840; State of Maryland v.

EPA, supra, 530 F. 2d at 228.

m*

6

states, including Colorado, had not adopted special provi-

sions in their existing SIPs imposing the required construc-

tion moratorium in the nonattainment areas of each non-

complying state. See 42 U.S.C. (Supp. III) 7410(a)(2)(1). On

July 2, 1979, therefore, the Administrator, acting pursuant

to 42 U.S.C. (Supp. III) 7410(c) and 7601, promulgated an

interpretative rule that implemented the operation of the

required moratorium in the nonattainment areas of each

noncomplying state.

2. Because certain areas in Colorado had been desig-

nated as nonattainment areas for carbon monoxide and

photochemical oxidants (43 Fed. Reg. 8975-8976, 40419

(1978)), the State of Colorado, if it desired to avoid the

funding limitations, needed to develop for these nonat-

tainment areas a new Part D SIP under 42 U.S.C. (Supp.

III) 7502(b), which would include certain new measures

such as legislation requiring that vehicle emissions be

tested. On June 8, 1979, the Colorado legislature amended

Senate Bill 1, a statute concerning inspection and mainte-

nance. The law authorized a study to compare the effective-

ness of two alternative programs: (1) a full 1/M program to

test emissions, and (2) a program requiring only that certain

engine adjustments be made on all vehicles. The Colorado

statute further provided that the study would have to be

completed by January |, 1980, and that the legislature

would enact further legislation based on the results of the

study, not later than March 1, 1980.

On October 5, 1979, the Administrator approved Colo-

rado’s SIP on the condition, among others, that the legisla-

ture adopt an acceptable I/M program by March |, 1980,

the deadline that the Colorado legislature had previously

imposed upon itself. 44 Fed. Reg. 57401-57409 (1979). The

Administrator’s approval of the SIP lifted the moratorium

on the construction of major sources that had become

effective in certain areas of Colorado on July 2, 1976. How-

ever, the Administrator’s conditional approval stated that

7

the SIP would ultimately be disapproved if the legislature

failed to adopt an acceptable I/M by its self-imposed

March I, 1980 deadline. The Administrator also pointed

out that the moratorium on construction of major new or

modified stationary sources would again become effective

in each nonattainment area under 42 U.S.C. (Supp. III)

7410(a)(2)(1), and that he would exercise his authority to

withhold federal highway and sewage funds under 42

U.S.C. (Supp. II1) 7506(a) and 7616(b), if the deadline were

not met.

On December 4, 1979, a petition for review challenging

the Administrator’s conditional approval of the Colorado

SIP was filed in the United States Court of Appeals for the

Tenth Circuit by petitioners Mountain States Legal Foun-

dation (“Foundation”) and 27 individual members of the

Colorado General Assembly.® Essentially, they claimed

that the Administrator’s conditional approval violated the

First, Fifth, and Tenth Amendments, as well as Article IV,

Section 4, of the Constitution, allegedly because the Admin-

istrator was coercing the state legislature to adopt an I/M

bill. Petitioners also asserted that the Administrator had

exceeded his statutory authority under the Clean Air Act.

The State of Colorado intervened, through its Attorney

General, and took the position that the Administrator had

not violated the Clean Air Act, that the construction

moratorium and funding cutoff provisions of the Act did

not violate the First, Fifth, or Tenth Amendments and,

finally, that Foundation had no standing to represent the

State of Colorado.

The Colorado legislature failed to meet its March |, 1980

deadline for passing an I/ M bill. On March 1, 1980, there-

fore, the Administrator informed the court of appeals that

Petitioner Foundation seeks review here on behalf of its members

who are citizens of the State of Colorado and on behalf of the State of

Colorado (Pet. iii).

| .

|

8

he had reinstated the construction moratorium in Colora-

do’s nonattainment areas, and that he would proceed to

withhold highway and sewage funds. Petitioners moved for

a stay pending review,’ which the Tenth Circuit granted at

oral argument on March 13, 1980. The State of Colorado,

through its Attorney General, both in its brief and at oral

argument, expressly disclaimed any agreement with the

constitutional and statutory challenges raised by Founda-

tion and the 27 individual petitioners (Pet. App. 6a-7a). The

Attorney General argued only that the Administrator’s

action would be arbitrary and capricious if he were to

impose the funding restrictions before the final adjourn-

ment of the 1980 legislative session because the legislature

“was making reasonable efforts to cure the deficiencies” (id.

at 7a).

On May 2, 1980, the stay entered by the court of appeals

expired according to its terms, and the construction morat-

orium again became effective. A further stay was sought

and denied at that time. On May 7, 1980, the Colorado

legislature passed an I/M bill, which Governor Lamm

signed into law on May 23, 1980. On May 15, 1980, the

Administrator informed the court of appeals that he

believed that the Colorado bill was adequate, and that he

would shortly publish in the Federal Register a notice of

proposed rulemaking approving the I/ M legislation as part

of the Colorado SIP. On May 29, 1980, the court of appeals,

on its own motion, requested memoranda on the question

of mootness. Pet. App. 7a. On June 13, 1980, the Adminis-

trator published a notice of proposed rulemaking (45 Fed.

Reg. 40167), and, on July 16, 1980, he again conditionally

approved the Colorado SIP, revoked the construction

moratorium, and stated that funding cutoffs would not be

pursued (45 Fed. Reg. 47682).

7An earlier stay motion had been denied on January 7, 1980.

9

On August 29, 1980, the court of appeals dismissed the

petition for review. The court held that only the Colorado

Attorney General had standing to raise the issue that the

Clean Air Act and the Administrator’s actions were uncon-

stitutionally coercive under the First, Fifth, and Tenth

Amendments to the Constitution. Because the Attorney

General had expressly declined to raise that issue, the court

held that petitioners could not do so on behalf of the state

(Pet. App. 27a-29a).

ARGUMENT

The petition for review, which was dismissed by the court

of appeals, challenged agency action that has since been

superseded. This case is therefore moot, and the petition for

a writ of certiorari should be denied. Moreover, even if the

case were not moot, the holding of the court of appeals that

petitioners lacked standing would provide no basis for

further review because that holding is correct and does not

conflict with any decision of this Court or any other court of

appeals.

1. The present case is clearly moot. Petitioners originally

brought this administrative review action to challenge the

Administrator’s decision of October 5, 1979 to approve the

Colorado SIP subject to the condition that Colorado enact

an I/M bill prior to the March 1, 1980 deadline that the

state had previously imposed upon itself in Senate Bill 1,

which the legislature amended on June 8, 1979. The Admin-

istrator stated on October 5, 1979, that he would disapprove

the SIP, withhold federal highway and sewage funds, and

reimpose a moratorium on the construction of new sources,

if the state did not act by March 1, 1980. Because Colorado

did not meet that deadline, the Administrator took those

steps on May 2, 1980. See pages 7-8, supra. One week later,

Colorado adopted an I/M bill. On July 16, 1980, the

Administrator approved the Colorado I/ M plan, lifted the

construction moratorium, and removed the possibility that

>

>

10

funds would be withheld. As the Administrator stated on

July 16, 1980, his May 2, 1980 disapproval of the Colorado

SIP had been superseded, and he therefore “remov[ed] the

federal funding and stationary source construction restric-

tions” (45 Fed. Reg. 47684).

The Administrator’s July 16, 1980 final action approving

the Colorado I/M plan revoked his conditional approval

action of October 5, 1979, which was the action that peti-

tioners sought to have reviewed. Moreover, it was precisely

the allegedly “coercive” nature of the Administrator’s con-

ditional action upon which petitioners based their constitu-

tional and statutory challenges. When the State of Colo-

rado enacted the I/M legislation that was signed by

Governor Lamm on May 23, 1980, thereby providing the

Administrator with a proper basis for granting final appro-

val to this element of the SIP, the State of Colorado set in

motion the chain of events that would necessarily moot this

controversy. Because the Colorado I/ M plan is now fully

approved, there is no longer any “live controversy” between

the parties concerning the constitutional or statutory valid-

ity of the Administrator’s conditional approval. See Sosna

v. Iowa, 419 U.S. 393 (1975); Defunis v. Odegaarda, 416

U.S. 312 (1974). It is likewise clear that this case does not

fall within the “capable of repetition yet evading review”

exception to the mootness doctrine. If the State of Colo-

rado had not adopted a proper I/ M plan, the case would

not be moot. Moreover, petitioners do not and cannot

demonstrate that the issues which they seek to present

would evade review if Colorado were to repeal its I/M

legislation and the Administrator were again to exercise his

statutory authority under 42 U.S.C. (Supp. III) 7410(a)(2)(1),

7506(a), and 7616(b). See Weinstein v. Bradford,423 U.S. 147

(1975); Sosna v. Iowa, supra. lf those events were to occur,

petitioners could then invoke the jurisdiction of the federal

courts and put forward their constitutional and statutory

claims. In their present posture, however, petitioners seek

11

what clearly amounts to an advisory opinion, which this

Court has no power to grant. See EPA v. Brown, 431 US.

99 (1977).

2. Contrary to petitioners’ contention (Pet. 17-22), the

court of appeals correctly held that only the State of Colo-

rado had standing to assert that the Administrator’s actions

under the Clean Air Act violated the Tenth Amendment,

and that this claim could not therefore be raised by Founda-

tion and the 27 individual legislators who are petitioners

here.8

The State of Colorado intervened in the court below,

through its Attorney General, and took the position that

neither the Clean Air Act nor the Administrator’s actions

under the Act violated the Constitution. The State of Colo-

rado also took the position that, as a matter of state law, the

Attorney General has the exclusive right to represent the

state in actions to protect its interests. See Gallagher v.

Continental Insurance Co., 502 F. 2d 827 (10th Cir. 1974).

As the court of appeals correctly observed (Pet. App. 19a),

“the position of the State of Colorado is completely in

contradiction to that of [Foundation] and the twenty seven

[legislators] on the constitutional and statutory challenges

raised by the petitioners.” The court of appeals therefore

held, as the State of Colorado had urged, that only the

Attorney General could represent the state’s interest, and

that petitioners lacked standing to raise their asserted con-

stitutional claims. Lamm v. Volpe, 449 F. 2d 1202 (10th

Cir. 1971). Accord, State of Texas v. EPA, 499 F. 2d 289,

320 (Sth Cir. 1974).9 This holding clearly comports with this

8Indeed, petitioners’ recognition of this fact caused them to file this

action not only on their own behalf, but also purportedly on behalf of

the State of Colorado (see Pet. iii). Petitioners nonetheless declined to

brief the standing question in the court of appeals. See Pet. App. 15a,

29a n.2.

If the federal courts were to permit private parties to assert Tenth

Amendment claims that a state has declined to raise, unnecessary

7%

12

Court’s longstanding concern that third parties not be given

unlimited power to assert the rights of other parties, a

concern that is directly at stake here because the state’s

exclusive legal representative has taken a position directly

opposed to the stance petitioners advocate.

Petitioners also attack the Court’s holding that they

lacked standing to challenge the Administrator’s action on

grounds other than the Tenth Amendment. As the court of

appeals observed, no aspect of the EPA action in disap-

proving the plan, withholding funds or imposing the

moratorium constituted an injury that affected Founda-

tion, its officers and members. Because petitioners’ argu-

ments were, in substance, all directed to the Administrator’s

allegedly unconstitutional actions that were “coercing” the

State of Colorado into adopting an I/M bill, petitioners

sought to stand in the shoes of the state. The Colorado

Attorney General spoke for the state, however, and

advanced a position directly contrary to that advanced by

Foundation. Thus, the court below correctly held that

friction between the states and the federal government would certainly

be created. In the present case, for instance, petitioners originally

asserted that the Administrator was unconstitutionally attempting to

“coerce” the state into enacting certain legislation. At the time that this

review action was filed, the State of Colorado, acting through its

Attorney General, not only declined to support petitioners’ contention,

but explicitly repudiated it. In the interim, that legislation has passed

the general assembly and has been signed into law by the governor. In

the present posture of this case, therefore, petitioners’ controversy is as

much with the State of Colorado as it is with the Administrator. In

support of their positicn, petitioners ask that the Court look to state-

ments made by legislators during the debates preceding the enactment

of the bill to determine their state of mind. Such an inquiry certainly

constitutes a novel function for the federal courts to perform. Petition-

ers’ “legislator standing” cases (Pet. 18-19) are simply inapposite

because in none of those did the legislators seek to raise claims that are

analogous in any way to those that petitioners seek to raise here. See

Goldwater v. Carter, 444 U.S. 996 (1979). See also National League of

Cities v. Usery, 426 U.S. 833, 836 n.7 (1976).

13

the “injuries” of which petitioners were complaining were

not theirs to assert.

3. Petitioners also ask that the Court decide several con-

stitutional and statutory issues that were not decided below

because of the court’s holding that petitioners lacked stand-

ing. Those issues are not now properly presented for review

(see EPA v. Brown, 431 U.S. 99, 103-104 (1977)), and they

lack merit in any event.

_a. As we have shown (pages 7-9, supra), Colorado’s

enactment of the I/M bill led the Administrator to revoke

the allegedly “coercive” requirements that petitioners chal-

lenged below, thereby mooting this case. No need exists,

therefore, for this Court to consider the constitutional

claims (Pet. 5-15) that petitioners would raise. We note,

however, that these claims are insubstantial. Petitioners’

reliance (Pet. 7-8) on National League of Cities v. Usery,

426 U.S. 833 (1976), for instance, is inapposite because the

construction moratorium does not entail regulation of any

state function atall, much less “functions essential to separ-

ate independent existence” of the state. What is challenged

here is simply direct regulation of private commerce, which

is authorized by the Commerce Clause. Compare National

League of Cities v. Usery, supra, 426 U.S. at 845, 852. Such

“direct federal regulation by definition involves no intru-

sion on sovereignty what soever.” District of Columbia v.

Train, 521 F. 24971,994n.27 (D.C. Cir. 1975), vacated and

remanded sub nom. EPA v. Brown, 431 U.S. 99 (1977);

Brown v. EPA, 521 F. 2d 827, 840 (9th Cir. 1975), vacated

and remanded, 431 U.S. 99 (1977), opinion on remand, 566

F. 2d 665 (9th Cir. 1977) (see pages 4-5, note 4, supra).!° The

'0The Brown decisions of the court of appeals do not support peti-

tioners’ contentions. In the Brown cases, EPA claimed the authority to

direct the state to take particular action and adopt particular state laws,

and \to enforce this authority in the courts through injunctive relief,

imposition of a receivership on state functions, and contempt citations

7%

14

court of appeals have uniformly sustained federal laws,

passed under the Commerce power, which, like the Clean

Air Act (see page 14, infra), allow the states to choose

whether to participate in a federal regulatory scheme. See

e.g., Friends of the Earth v. Carey, 552 F. 2d 25, 36-39 (2d

Cir.), cert. denied, 434 U.S. 902 (1977). Petitioners’ Tenth

Amendment claim is therefore devoid of merit.

b. Petitioners’ arguments concerning the alleged uncon-

stitutionality of the limitations in 42 U.S.C. (Supp. III)

7506(a) and 7616 likewise fail to withstand scrutiny. This

Court has repeatedly upheld the constitutionality of sta-

tutes conditioning the availability of federal grant funds

upon state participation in related regulatory programs.

Oklahoma v. Civil Service Commission, 330 U.S. 127, 143-

144 (1947); Steward Machine Co. v. Davis, 301 U.S. 548,

589-591 (1937); see also Fullilove v. Klutznick, No. 78-1007

(July 2, 1980), slip op. 22 (plurality opinion).

c. Petitioners erroneously assert that the Administra-

tor’s actions under the Clean Air Act violate Article IV,

Section 4 of the Constitution and the First Amendment.

That part of petitioners’ challenge which is based on the

Guaranty Clause presents no justiciable question apart

from their Tenth Amendment claims. Baker v. Carr, 369

U.S. 186, 224 (1962). Moreover, contrary to petitioners’

assertion (Pet. 12-15), the Administrator’s disapproval of

the Colorado SIP plan and imposition of a construction

moratorium did not chill the rights of free expression of

members of the Colorado legislature or interfere with the

First Arnendment rights of citizens to petition for the red-

ress of grievances, and the cases upon which petitioners rely

do not remotely support their position. See United States v.

O’Brien, 391 U.S. 366, 377 (1968).

against state officials including the governor. Here, EPA has done none

of these things and asserts no power to require Colorado to act at all.

EPA has not, in fact, required Colorado to do anything.

15

5. Petitioners also raise a number of statutory claims

that lack merit. They broadly assert that the Clean Air Act

provides no support for the Administrator’s imposition of a

moratorium on the construction or modification of major

pollution-emitting sources in nonattainment areas after

July 1, 1979, because a revised SIP has not been approved

by the Administrator.'' However, 42 U.S.C. (Supp. III)

7410(a)(2)(1), 42 U.S.C. (Supp. III) 7413(a)(5), and 42

U.S.C. (Supp. III) 7502(a)(1) all provide direct support for

the Administrator’s interpretation of his powers under the

Act. Furthermore, the legislative history of these sections

demonstrates the statutory basis for imposing such a

moratorium. S. Rep. No. 95-127, 95th Cong., Ist Sess.

163-170 (1977). H.R. Conf. Rep. No. 95-564, 95th Cong., Ist

Sess. 157 (1977).

Petitioners contend that the Administrator lacked statu-

tory authority to withhold federal highway funds if Colo-

rado considered but failed to adopt an I/ M bill. This claim

is both moot and without substance. 42 U.S.C. (Supp. III)

7506(a) was intended by Congress to induce states to partic-

ipate in the SIP program and to take such necessary steps as

passing I/ M legislation. This provision would be nullified if

a state could avoid a federal fund cutoff by simply consider-

ing an I/M provision, without ever enacting one.

Petitioners further argue that Congress did not grant the

Administrator the authority to withhold sewage funds if a

state fails to adopt I/M legislation. However, 42 U.S.C.

(Supp. III) 7616(b)(2) expressly authorizes the Administra-

tor to withhold funds from sewage projects which would

indirectly increase emissions from “mobile sources.”

''As we have shown (pages 9-11, supra), the moratorium has been

lifted and the controversy with respect to the Administrator's authority

is Moot in any event.

16

In addition, petitioners err when they assert that the

Administrator may not grant conditional approval for an

SIP. Although the Administrator has now removed the

conditions which petitioners challenged, petitioners also

overlook the fact that 42 U.S.C. (Supp. III) 7601(a)(1)

authorizes the Administrator to attach conditions to his

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

1124 (2d Cir. 1974).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCRrEE, JR.

Solicitor General

ANGUS MACBETH

Acting Assistant Attorney General

Edward J. SHAWAKER

BARBARA H. BRANDON

Attorneys

MARCH 1981

DOJ-1981-03