# Opposition — Mountain States Legal Foundation v. Costle

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 1050

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1058%3A4. Public record. Not legal advice.