Opposition — International Ass'n of Machinists & Aerospace Workers v. Iberia Air Lines of Spain

ALCXANDER L.S

OCTOBER TERM, 1980

OHIO DEPARTMENT OF HIGHWAY SAFETY and

DONALD D. Cook, DIRECTOR, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

ANTHONY C. LIOTTA

Acting Assistant Attorney General

ROBERT L. KLARQUIST

ANNE S. ALMY

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Bruce M. DIAMOND

Assistant General Counsel

ROBERT E. KENNEY

MICHAEL H. ELAM

Attorneys

Environmental Protection Agency |

Washington, D.C. 20460

RS aden adnate = Semen vneemnte wwe nen

QUESTION PRESENTED

Whether the Administrator of the Environmental

Protection Agency constitutionally may prohibit the

State of Ohio from registering motor vehicles that

do not pass an existing annual emission control

inspection.

(1)

TABLE OF CONTENTS

| Page

Opinions below ... 1

Jurisdiction .................. 1

Statement:

A. The statutory scheme .................. 2

B. Factual background ..........................cccscccccccsceceees 5

C. The decisions below .......... 8

D. Subsequent developments .........................0sceec0e 9

Argument seaateisianbtnsieethenmnneelindiaebeinitnmeseingts ll

Conclusion BPO URE CEO LOT RRO SS PANE SON 17

IIE sc hvscsrhisAcericesitihcithdhdnceencinny seistinnnstnlisenitipnninedionuianntabsienegennte la

TABLE OF AUTHORITIES

Cases:

Baker V. Carr, 869 U.S. 186 ..2.................00ccccccccccceneee 16

Bibb v. Navajo Freight Lines, 359 U.S. 520 ............ 15

Brown V. EPA, 521 F.2d 827 .200.....22..........ccccccceeecseee 5,18

Brown V. EPA, 566 F.2d 666 -.00................0000000000002. 6, 14, 15

District of Columbia v. Train, 521 F.2d 971 ..5, 18, 14, 15

EPA V. Brown, 481 U.S. 99 ..................ccc cece ccceeeeees 6,11

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

denied, 484 U.S, 902 oo... cece tt secseccesenneeeee 15-16

Fry Vv. United States, 421 U.S. 642 .0000...0...c.... 9

Maryland v. EPA, 580 F.2d 216 ....0.......00...00000.... 5, 18, 14

National League of Cities v. Usery, 426 U.S. 888.. 9,16

Natural Resources Defense Council, Inc. v. EPA,

I I che hen te necidtetiersstbensictstivaheaphaestbenchhedibiinpieginnn 5

Pacific Legal Foundation v. Costle, 627 F.2d 917,

cert. denied, No. 80-828 (Feb. 28, 1981) ............ 10, 12

Pennsylvania Vv. EPA, 600 F.2d 246 .....0...000000000..... 5,18

Railway Express Agency, Inc. v. New York, 336

TT a easdeninians 16

South Carolina Highway Department v. Barnwell,

Pe OS OD, Pee 15

South Terminal Corp. v. EPA, 504 F.2d 646 .......... 18

(m)

| PREVIOUS PAGE WAS GLAMK |

;

:

IV

Cases—Continued Page

Train v. Natural Resources Defense Council, Inc.,

IS RRS es" NEP Ag NA BE) 3

Williamson Vv. Lee Optical of Oklahoma, Inc., 348

RRR RENTS) TESS ls SRO eRe aC ee 16

Constitution, statutes and regulations

United States Constitution:

Art. IV, §4 (Guaranty Clause) ...................... 16

: a csscounens 16

Clean Air Act, 42 U.S.C. 1857 et seq. ..............-....... 2

42 U.S.C. 1857c-5 (a) (2) (A) (i) ...............-...... 3

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

95-95, 91 Stat. 685, 42 U.S.C. (Supp. III) 7401

Oe cecticthieaeleihinetecectindhlencisiniaccincitinanicmenesseteress 2,9, 11

42 U.S.C. (Supp. III) 7401(b) (1) ................ 2

42 U.S.C. (Supp. III) 7407(d) ...................... 9

42 U.S.C. (Supp. III) 7409 ........0....-..-2-ccceoee 2

42 U.S.C. (Supp. III) 7409(b) (1) ................ 2

42 U.S.C. (Supp. III) 7409(b) (2) ................ 2

42 US.C. (Supp. III) 7410 ............................ 8

42 U.S.C. (Supp. III) 7410(a) (1) ................ 8

42 U.S.C. (Supp. III) 7410(a) (2) (A) ........ 8

42 U.S.C. (Supp. III) 7410(a) (2) (B) ........ 4

42 U.S.C. (Supp. III) 7410(a) (2) (G) ........ 4

42 U.S.C. (Supp. III) 7410(a) (2) (1) .......... 9

42 U.S.C. (Supp. III) 7410(c) ...................... 8,6

42 USC. (Supp. III) 7418 ............................ 4

42 U.S.C. (Supp. III) 74138(a) (1) ................ 4,7,8

42 U.S.C. (Supp. III) 7418(a) (2) ................ 4,5,8

42 US.C. (Supp. III) 7418(b) ...................... 4,5

42 US.C. (Supp. ITI) 7418(b) (1) ................ 8

42 U.S.C. (Supp. III) 76502 ............................ 10

42 US.C. (Supp. III) 7502(a) ...................... 10

42 U.S.C. (Supp. III) 7502¢b) (11) (B) ...... 10, 12

42 U.S.C. (Supp. III) 7502(b)(11)(C) ...... 10, 12

42 USC. (Supp. III) 7606(a) ...................... 10

42 U.S.C. (Supp. III) 7602(e) ...................... 4

42 US.C. (Supp. III) 7607(b) (1) ................ 7

Vv

Constitution, statutes and regulations—Continued Page

National Traffic and Motor Vehicle Safety Act of

ED MP ate MIIIOIED: cntececiensctinbtevctbtecesscctocsecsees 15

Ohio Rev. Code Ann. (Page Supp. 1979) :

Fy I icenpta neceistarightbenpendaveniibsttemanpeiniomeessnaencese

§ 4508.02

§ 4508.10

Sa IED | betrrinnstnciivenveenscsertncbonnecsentimevszeseiacine 6,

40 C.F.R. 52.1878 (e)

40 C.F.R. 52.1878(f) ....

88 Fed. Reg. (1978):

Qeanr aan

ELA en ee 5

EES ALTE AAACN 6

) St a a ee ae 6

42 Fed. Reg. (1977):

NS SLES ST 7 NR a 14

p. 30506 Ee BEES TE SRR EA 14

PB, py Sh!) UC 10, 11

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1289

OHIO DEPARTMENT OF HIGHWAY SAFETY and

DONALD D. CooK, DIRECTOR, PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A25) is reported at 635 F.2d 1195. The opinion of

the district court (Pet. App. A26-A35) is not

reported.

JURISDICTION

The judgment of the court of appeals was entered

on December 5, 1980. The petition for a writ of cer-

(1)

ss.

tiorari was filed on January 30, 1981. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254

(1).

STATEMENT

A. The Statutory Scheme

The Clean Air Act, 42 U.S.C. 1857 et seg. (the

Act),’ requires the reduction of pollutants in the

ambient air in order “to protect and enhance the

quality of the Nation’s air resources so as to promote

the public health and welfare and the productive

capacity of its population.” 42 U.S.C. (Supp. III)

7401(b) (1).

The Administrator of the Environmental Protection

Agency (EPA) must establish standards governing

maximum concentra‘ions of particular pollutants in

the air (42 U.S.C. (Supp. ITI) 7409),? but the Act

gives state and local governments the primary re-

sponsibility for establishing and implementing air

1The Act was substantially amended and transferred to

42 U.S.C. (Supp. III) 7401 et seq. by the Clean Air Act

Amendments of 1977, see; infra, pages 9-10. For the sake of

clarity, citations are to the Act as amended in 1977, except

where there are significant differences in the Act in effect

when the case was decided; the changes are identified.

* This case involves only the national primary air quality

standards, “ambient air quality standards the attainment and

maintenance of which in the judgment of the Administrator

* * * are requisite to protect the public health.” 42 U.S.C.

(Supp. III) 7409(b) (1). A national secondary ambient air

quality standard is “a level of air quality the attainment and

maintenance of which in the judgment of the Administrator

* * * ig requisite to protect the public welfare from any known

or anticipated adverse effects associated with the presence

of [each] air pollutant [for which criteria have been estab-

lished] in the ambient air.” 42 U.S.C. (Supp. III) 7409(b) (2).

quality control programs (42 U.S.C. (Supp. III)

7410). The Act requires each state to submit to the

Administrator plans for “implementation, main-

tenance, and enforcement” of the national standards

for every portion of the state within nine months

after the Administrator promulgates those standards.

42 U.S.C. (Supp. IIT) 7410(a) (1).

These state plans must provide a regulatory scheme

for controlling emissions from stationary and moving

sources of pollution to the extent necessary to attain

the national standards within each of the state’s air

quality control regions (42 U.S.C. (Supp. III) 7410

(a)(1). Within four months after its submission,

the Administrator must approve the state’s imple-

mentation plan if it satisfies the statutory criteria;

if it does not, he must promulgate a substitute plan

for the state that does satisfy those criteria. 42

U.S.C. (Supp. III) 7410(a) (2) and (c). See Train

v. Natural Resources Defense Council, Inc., 421 U.S.

60, 64-67 (1975).

The statute specifically defines the criteria for a

satisfactory implementation plan, which must provide

a regulatory scheme for controlling emissions from

both stationary facilities and motor vehicles to the ex-

tent necessary to attain the national ambient air

quality standards within the state within 3 years of

the plan’s federal approval or promulgation. 42

U.S.C. 1857c-5(a) (2) (A) (i). Each plan must in-

clude emission limitations for pollution sources, sched-

ules for compliance, and provisions for such addi-

tional methods of pollution control as may be neces-

sary. In particular, the Act specifically provides that

an implementation plan must include, if necessary

’ The 1977 Amendments permit an extension of this dead-

line under certain circumstances. 42 U.S.C. (Supp. III)

7410(a) (2) (A); see, infra, pages 9-10.

7%

*-.

4

to insure attainment and maintenance of the na-

tional standards, motor vehicle emission control in-

spection and maintenance programs. 42 U.S.C. (Supp.

III) 7410(a) (2) (B) and (G).*

Enforcement of the state implementation plan is a

federal, as well as a state, responsibility. The au-

thorization for federal enforcement is contained in

42 U.S.C. (Supp. III) 7418. Subsection (a)(1) au-

thorizes the Administrator to issue a notice of viola-

tion to “any person * * * in violation of any require-

ment of an applicable implementation plan.”* If the

violation continues for another 30 days, the Admin-

istrator is authorized to issue an “order requiring

such person to comply with the requirements of such

plan” or he may proceed under 42 U.S.C. (Supp. IIT)

7413(b). Subsection (a)(2) addresses situations

where there are widespread violations of an imple-

mentation plan that appear to result from a state’s

failure to enforce the plan effectively. If the Admin-

istrator finds such a failure, he may notify the state

and, if the situation is not corrected within 30 days,

issue a public notice and assume primary federal

enforcement. In periods of federally assumed en-

forcement, the Administrator may issue compliance or-

ders or proceed under 42 U.S.C, (Supp. III) 7413 (b)

* An inspection and maintenance program checks pollution

emission levels of motor vehicles, and requires those with

excessive emissions to be adjusted. A continuing inspection

program is important, because the efficiency of a vehicle’s

emission control system will decrease with the passage of time

if it is not properly maintained and repaired. The program

identifies vehicles in need of emission control system adjust-

ment and repair.

5’ The term “ ‘person’”’ includes a “State, municipality, [or]

political subdivision of a State * * *” (42 U.S.C. (Supp. III)

7602(e)).

without prior 30-day notice to the person in violation

or to the state.

42 U.S.C. (Supp. ITI) 7418(b) authorizes the Ad-

ministrator to commence a civil action for injunc-

tive relief or for recovery of civil penalties. A civil

action is authorized whenever a person refuses to

comply with an order, continues to violate any re-

quirement of an implementation plan for more than

80 days after notification, or violates a requirement

of an implementation plan during a period of federal

enforcement under 42 U.S.C. (Supp. III) 7418(a)

(2). :

B. Factual Background

In 1978, the State of Ohio submitted to the EPA

transportation control plans for three air quality con-

trol regions: Toledo, Dayton and Cincinnati.° The

*In 1978, acting pursuant to a court order in Natural Re-

sources Defense Council, Inc. v. EPA, 475 F.2d 968 (D.C.

Cir.), the Administrator required states needing transporta-

tion control plans to amend their implementation plans to

include such plans. 88 Fed. Reg. 2194, 10851 (1978). Several

states failed to amend their plans, and the Administrator

promulgated federal transportation control plans for those

states, including inspection and maintenance programs for

motor vehicles; he ordered the states to implement those

plans. Several states successfully challenged EPA’s authority

under the Clean Air Act and the Constitution to require the

states to implement the federally promulgated plans. Brown

Vv. EPA, 621 F.2d 827 (9th Cir. 1975) (Brown I); Maryland

v. EPA, 580 F.2d 215 (4th Cir. 1975); District of Columbia

v. Train, 521 F.2d 971 (D.C. Cir. 1975); but see Pennsyl-

vania V. EPA, 600 F.2d 246 (8d Cir. 1974). The cases

holding the Administrator to be without his asserted author-

ity were vacated and remanded by this Court as moot after

the government conceded that the proposed federal plans

would have to be modified to eliminate the requirement that

the state submit legally adopted regulations to the Adminis-

*-%

6

Administrator approved the plans for Dayton and

Toledo, 38 Fed. Reg. 30971-30972 (1973), but found

the third plan inadequate to assure attainment of

the primary standard for photochemical oxidants

(ozone) in the Cincinnati area. 38 Fed. Reg. 30972-

30974 (1973). The Administrator then promulgated

an inspection and maintenance regulation for the

Cincinnati region pursuant to 42 U.S.C. (Supp. III)

7410(c), to supplement the state plan. 38 Fed. Reg.

80974 (1973), 40 C.F.R. 52.1878 (hereinafter Cin-

cinnati Regulation )."

The Cincinnati Regulation calls for an inspection

and maintenance program for light-duty motor ve-

hicles owned and operated within Hamilton County,

Ohio, which includes te City of Cincinnati. It re-

quires the County and City to adopt an inspection

and maintenance program providing for yearly emis-

sions testing of vehicles. The regulation bars the

operation after December 31, 1975, of motor vehicles

that have failed to pass the emission test, 40 C.F.R.

52.1878(f), and prohibits the City, the County and

the State of Ohio from allowing the registration of

such motor vehicles or allowing the operation of these

vehicles on public roads or streets under their con-

trol. 40 C.F.R. 52.1878(e).° No one sought judicial

review of the Administrator’s promulgation of this

trator. EPA v. Brown, 481 U.S. 99, 108 (1977). Thereafter,

the Ninth Circuit considered an amended federally promul-

gated California transportation control plan. Brown v. EPA,

566 F.2d 665 (1977) ee II). See discussion, infra,

pages 18-14.

™ This inspection and maintenance regulation is the only

EPA promulgated transportation control measure for the

State of Ohio. See 42 U.S.C. (Supp. III) 7410(c).

*This provision is the only major provision of the Cin-

cinnati Regulation that addresses the conduct of, or imposes

a duty on, the State of Ohio.

7

regulation (42 U.S.C. (Supp. III) 7607(b)(1)); the

County of Hamilton and the City of Cincinnati im-

plemented an inspection and maintenance program.

Both Cincinnati and the neighboring town of Norwood

established and operated inspection facilities; vehicles

of county residents were required to be inspected at

these facilities.? The State of Ohio, however, failed to

comply with the registration ban. Instead, the Ohio

Department of Highway Safety has continued to reg-

ister motor vehicles without requiring any showing

that their emission control systems have passed the

inspection required by the Cincinnati Regulation.”

On March 15, 1976, the EPA Regional Administra-

tor issued a notice of violation to the State of Ohio,

pursuant to 42 U.S.C. (Supp. III) 7418(a)(1). The

notice informed the Department of Highway Safety

that its action in continuing to register noncomplying

motor vehicles was in violation of 40 C.F.R. 52.1878

and, hence, the state implementation plan. A con-

ference with representatives of the EPA in May 1976

* Emissions inspection equipment was installed at pre-

existing motor vehicle safety inspection facilities at these

locations. The Cincinnati facility, which performed almost

60% of the inspections, was permanently closed by a Febru-

ary 11, 1981, ordinance of the City Council (App., infra,

la-2a). The fate of the Norwood facility is unclear; it is

currently funded only through March 81, 1981.

%” The Ohio Department of Highway Safety is the state

agency responsible for administration of laws relating to the

registration and licensing of motor vehicles. Ohio Rev. Code

Ann. § 4501.02 (Page Supp. 1979). Under Ohio law, annual

registration is required for motor vehicles “operated or driven

upon the public roads or highways.” Ohio Rev. Code Ann.

§ 4508.10 (Page Supp. 1979). An annual license tax is also

levied upon the operation of motor vehicles at the time of

making application for registration. Ohio Rev. Code Ann.

§ 4508.02 (Page Supp. 1979).

’*%

>.

failed to persuade the Ohio Department of Highway

Safety to comply with the registration ban. There-

fore, on June 22, 1976, the EPA Regional Adminis-

trator issued an order to the State of Ohio pursuant

to 42 U.S.C. (Supp. III) 7418(a) (1). This order di-

rected the State to refuse to issue license plates to

any light-duty, spark-ignition powered motor vehicle

owned by a resident of the County or City unless the

vehicle had been certified, following an inspection

made within the preceding 12 months, as being within

established emissions standards. The State refused

to comply with this order.

On November 18, 1976, the United States brought

suit pursuant to 42 U.S.C. (Supp. III) 7413(b) (1)

seeking an injunction to enforce the June 22, 1976,

order.

C. The Decisions Below

Despite the State’s contrary claim, the district court

ruled that the prohibition against vehicle registration

in the Cincinnati Regulation was intended to apply

to the Ohio Department of Highway Safety (Pet.

App. A29). It also ruled, however, that 42 U.S.C.

(Supp. III) 7413(a)(1) does not authorize the EPA

to issue a compliance order directing a state to take

enforcement action contained in a federally promul-

gated regulation. Instead, it concluded that the sole

remedy for nonenforcement by a state under the Act

is the assumption of primary federal enforcement

under 42 U.S.C. (Supp. III) 7418(a) (2).

On appeal, a divided court of appeals reversed. The

court ruled that a state is a “person” subject to the

enforcement procedure of 42 U.S.C. (Supp. III) 7413

(a) (1). Ohio’s ownership and control of streets and

highways, coupled with the historic practice of licens-

ing vehicles “provide a completely rational basis for

9

placing upon the State the obligation to prevent use

of these facilities by noncomplying vehicles” (Pet.

App. Al9).

Moreover, enforcement of this obligation does not

unconstitutionally interfere with integral govern-

mental functions or impair the integrity of the state

or its ability to function in the federal system. See

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

851 (1976); Fry v. United States, 421 U.S. 542, 547

n.7 (1975). The Cincinnati Regulation “does not

require the State to adopt legislation, establish new

regulatory agencies or change its procedures for regis-

tering vehicles. It merely requires the State to deny

use of state-owned facilities to those whose use adds

to the national problem of pollution. Further it does

not appear that compliance will entail large expendi-

tures by the State” (Pet. App. A20-A21).

D. Subsequent Developments

While this litigation was pending in the lower

courts, Congress enacted the Clean Air Act Amend-

ments of 1977, Pub. L. No. 95-95, 91 Stat. 685 et seq.

These amendments call for revisions in state imple-

mentation plans that will affect the Cincinnati Reg-

ulation. The amendments provide for the designation

of nonattainment areas for particular pollutants. 42

U.S.C. (Supp. III) 7407(d). State implementation

plans must bar new stationary sources in nonattain-

ment areas after June 30, 1979, unless the plan com-

plies with special nonattainment area provisions. 42

U.S.C. (Supp. III) 7410(a) (2) (1). These nonattain-

ment area provisions require an implementation plan

to provide for attainment of national primary am-

bient air standards by December 31, 1982. In the

case of photochemical oxidants or carbon monoxide

10

(the pollutants associated with emissions from motor

vehicles), attainment may be extended to not later

than December 31, 1987, if the state demonstrates to

the Administrator that attainment is not possible by

the 1982 date despite the implementation of “‘all rea-

sonably available measures.” 42 U.S.C. (Supp. III)

7502(a). In that situation, the implementation plan

provisions must “establish a specific schedule for im-

plementation of a vehicle emission control inspection

and maintenance program[,] and identify other

measures necessary * * *.” 42 U.S.C. (Supp. ITI)

7502(b)(11)(B) and (C). Submission of imple-

mentation plan revisions which meet the nonattain-

ment provision requirements was required by Janu-

ary 1, 1979. 42 U.S.C. (Supp. III) 7502 note. Where

an inspection and maintenance program is needed,

and reasonable efforts to submit such a revised state

implementation plan have not been made, EPA “shall

not approve” grants otherwise authorized by the

Clean Air Act and the Secretary of Transportation

shall not award certain highway grants. 42 U.S.C.

(Supp. III) 7506(a). See Pacific Legal Foundation

v. Costle, 627 F.2d 917 (9th Cir. 1980), cert. denied,

No. 80-828 (Feb. 23, 1981).

The Cincinnati area is one of two regions in the

State of Ohio that require vehicle inspection and

maintenance programs under the 1977 Amendments

(45 Fed. Reg. 73972 (1980)). On August 13, 1980,

after oral argument of the present case in the court

of appeals, the State of Ohio adopted legislation re-

quiring study and implementation of an inspection

and maintenance program by December 31, 1982; it

revised its implementation plan to reflect this new

policy." On November 7, 1980, the EPA published

11 Ag a result of this legislation, the government offered to

dismiss the appeal in the instant case. It concluded that there

Il

a notice that it was considering conditional approval

of the revised Ohio implementation plan. 45 Fed.

Reg. 73972 (1980).

ARGUMENT

1. The present enforcement action has been over-

taken by events. Its outcome is not likely to influence

enforcement of the Clean Air Act because the 1977

Amendments to the Act, have significantly changed

that law. The resolution of the action, moreover,

is unlikely to have a significant impact even in Ohio,

because the abandonment of the Cincinnati inspec-

tion program has substantially changed the factual

basis on which the decisions below rested. As a

result, this case is not an appropriate vehicle for the

resolution of questions concerning the scope of the

Administrator’s authority to compel implementation

of transportation control plans by the states. Cf.

EPA v. Brown, 481 U.S. 99 (1977).

The Cincinnati Regulation, which limited the

State’s duty to a registration ban, is unique among

the transportation control plans promulgated in 1973.

Future inspection and maintenance programs, includ-

ing registration bans, will be created under the terms

of the 1977 Amendments to the Clean Air Act, Pub.

L. No. 95-95, 91 Stat. 685 et seg. Although these

amendments still contemplate that a state will imple-

ment and enforce an inspection and maintenance pro-

gram for motor vehicles under certain circumstances

was no further need to press for enforcement of the June

1976 EPA order, because the state legislation contemplates

a state sponsored inspection and maintenance program by

December 81, 1982, and noncomplying vehicles will there-

after be prohibited from operating on public roads. The State

of Ohio opposed the government’s motion to dismiss and the

court of appeals denied the motion.

|

>.

12

(42 U.S.C. (Supp. ITI) 7502(b) (11) (B) and (C)),

the new amendments provide for methods to induce

the states to create such programs, without relying

on direct judicial action. See Pacific Legal Founda-

tion v. Costle, 627 F. 2d 917 (9th Cir. 1980), cert.

denied, No. 80-828 (Feb. 28, 1981). Because these

inducements are likely to be successful, an enforce-

ment action similar to the present one is unlikely

under the 1977 Amendments.

Indeed, the State of Ohio has responded to the 1977

Amendments by enacting legislation authorizing the

implementation of an inspection and maintenance pro-

gram by December 31, 1982 (Pet. App. A122-A130).

EPA expects that this state program will fulfill the

goal of this enforcement action: to have an effective

inspection and maintenance program in Hamilton

County, Ohio. For this reason, the government ex-

plored the possibility of dismissing this action follow-

ing enactment of the state statute. The court of ap-

peals instead reversed the judgment of the district

court and remanded the case for further proceedings

(Pet. App. A283). Upon remand, the district court

is likely to tailor any relief against the State of Ohio

to take into account the new Ohio statute, to minimize

inter-governmental conflict, and to foster cooperation

to ensure the successful development and implementa-

tion of an inspection and maintenance program for

the State of Ohio by December 31, 1982.

Moreover, in fashioning a remedy the district court

will have to consider the effect of the abandonment

_of some or all of the municipal inspection facilities

(see note 9, supra). This enforcement action has

been litigated from the outset on the factual premise

that those facilities were available to inspect motor

vehicles of Hamilton County residents. The failure

13

of this factual - predicate, while not curing the long-

the State of Ohio, may render

effective relief under this enforcement action imprac-

tical” The County and cities are not parties to the

present action and their rights and duties under the

Cincinnati Regulation, the Clean Air Act and the

Constitution have not been addressed. For this rea-

son, the relief requested in this action—compliance

with the registration ban—may not be effective un-

less and until action is taken, beyond the confines of

this case, to reinstitute inspection programs in Ham-

a

2. Contrary to petitioners’ assertions (Pet. 7-8),

the court of appeals decision in this case does not con-

flict with the decision in Brown II. Brown II was the

final decision in a series of cases which challenged

the EPA’s promulgation of transportation control

plans for several states in 1973. Brown v. EPA, 521

F.2d 827 (9th Cir. 1975) (Brown I); Maryland

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

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

1975)." The regulations at issue in those cases di-

Even if the Norwood facility is not closed, it is not

likely to be adequate to inspect all the vehicles covered by the

plan.

% See Pennsylvania ¥V. EPA, 600 F.2d 246 (3d Cir. 1974);

see generally South Terminal Corp. v. EPA, 504 F.2d 646

(ist Cir. 1974).

14

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

states submit legally adopted regulations. EPA v.

Brown, supra.

The Administrator then promulgated a revised in-

spection and maintenance regulation for California.

42 Fed. Reg. 30504 (1977). This regulation recuired

the state to create an inspection system, provide for

reinspection of failed vehicles, supervise repair fa-

cilities, and refuse to register motor vehicles that

failed to comply with the program. Id. at 30506.

Although the court in Brown II held that the regula-

tion exceeded the Administrator’s authority under

the Clean Air Act, it specifically noted that a simple

registration ban of the kind at issue here “quite

plausibly resembles legitimate steps by the federal

government to prevent interference with its regula-

tion of pollution. It merely requires the state to pro-

ceed in a certain manner if it is to regulate this as-

pect of commerce at all” (566 F. 2d at 673). Accord,

District of Columbia v. Train, supra, 521 F. 2d at

987, 991, vacated and remanded on other grounds,

EPA v. Brown, supra; cf. Maryland v. EPA, supra,

530 F. 2d at 226 (affirming federal power to condi-

tion ongoing state activities, such as vehicle licensing).

Petitioners emphasize (Pet. 12) that Brown II and

District of Columbia contemplated a federally run

inspection and maintenance program as the basis for

the registration ban. But the operation of the in-

spection and maintenance program by the City rather

than the federal government adds no new element to

oy gpg 2 Riga cond oo. cs mage ye

Like a federally run program, the program in this

case is an exférnally managed, valid inspection pro-

caulk euuiiblag tag dine biedeaads ta ts eo.

15

eration.“ Petitioners are also incorrect in suggesting

(Pet. 11-13) that the legal theory underlying the

judgment below is inconsistent with Brown II and

District of Columbia, supra. None of these courts

relied on the argument that the state could itself be

considered a polluter by virtue of its ownership of

the streets and highways. Compare Brown II, supra,

566 F. 2d at 673; District of Columbia v. Train, su-

pra, 521 F. 2d at 991; Pet. App. A19. The decisions

recognize that state power over access to its roads

has never been immune from federal regulation un-

der the Commerce Clause (see National Traffic and

Motor Vehicle Safety Act of 1966, 15 U.S.C. 1892(d)

(preempting state power over motor vehicle safety re-

quirements) ; South Carolina Highway Department v.

Barnwell Bros., Inc., 303 U.S. 177, 189-190 (1938) ),

nor from the constitutional prohibition implicit in

the Commerce Clause. Bibb v. Navajo Freight Lines,

359 U.S. 520, 529 (1959). Indeed, regulation of traf-

fic on state-owned roads and highways has long been

a cooperative effort among federal, state and local

governments. Friends of the Earth v. Carey, 552

4 Petitioners’ claim that the decision below is inconsistent

with the decisions of other circuits because it requires the

State to “revoke license plates” without state legislative au-

thority (Pet. 15) is based on an incorrect premise. Neither

the Cincinnati Regulation nor the EPA compliance order of

June 22, 1976, requires the State to “revoke” license plates.

Rather, they simply require the State to refrain from taking

affirmative action—issuing a new or renewed license—for

nonconforming vehicles. This is precisely the kind of regis-

tration ban approved in Brown II and District of Columbia,

supra.

*%

*.

16

F.2d 25, 38 (2d Cir.), cert. denied, 484 U.S. 902

(1977). Such joint regulation, which imposes only

minimal burdens on the state, does not raise issues

regarding state autonomy of the sort that concerned

the Court in National League of Cities v. Usery,

supra, 426 U.S. at 852.

In sum, the decision below represents an applica-

tion of existing principles to the very narrow factual

circumstances presented by the registration ban pro-

vision in the Cincinnati Regulation. Further review

is not warranted.

% The court of appeals also held petitioners’ Fifth Amend-

ment and Guaranty Clause (U.S. Const. art. IV, § 4) claims

to be without merit. These ruling are correct. Baker v. Carr,

869 U.S. 186, 224 (1962); Railway Express Agency, Inc. Vv.

New York, 886 U.S. 106 (1949); Williamson v. Lee Optical

of Oklahoma, Inc., 848 U.S. 488, 489 (1955). See South

Terminal Corp. Vv. EPA, supra, 5604 F.2d at 678.

Finally, petitioners’ claims concerning the ambiguity in the

regulation raise no substantial issue. Both lower courts found

the Cincinnati Regulation clearly placed an obligation on the |

State of Ohio to deny registration to noncomplying motor

vehicles (Pet. App. A22, A29). No further consideration

of this fact bound question is necessary.

17

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WanE H. McCresz, Jr.

Solicitor General

ANTHONY C, LIOTTA

Acting Assistant Attorney General

ROBERT L. KLARQUIST

ANNE 8S. ALMY

Attorneys

Bruce M. DIAMOND

Assistant General Counsel

ROBERT E. KENNEY

MICHAEL H. ELAM

Attorneys

Environmental Protection Agency

APRIL 1981

la

APPENDIX

PSO

EMERGENCY

CITY OF CINCINNATI

W.P.H.

AN ORDINANCE NO. 45-1981

Modifying the provisions of the Cincinnati Municipal

Code by repealing Chapter 504, “Testing Stations”

and all the sections enumerated therein.

WHEREAS, by Ordinance No. 231-1980 council

repealed the sections of Chapter 504 dealing with

auto safety inspections because the costs incurred in

operating the Safety Lane, including proposed capital

costs for revitalizing the existing equipment, exceeded

the operational revenues, thereby deleting the safety

inspection and retaining only the auto emissions in-

spection ; and

WHEREAS, said ordinance provided for the com-

plete closing of the Safety Lane, including the auto

inspection program, effective December 31, 1982, the

date by which statewide auto emissions testing was

to commence; and

WHEREAS, despite efforts to adjust the fees for

the remaining auto emissions testing to be commen-

surate with the operational expenses, the Safety Lane

is operating at a projected deficit and is no longer

feasible to operate; now, therefore,

BE IT ORDAINED by the council of the city of

Cincinnati, state of Ohio:

Section 1. Chapter 504 of the Cincinnati Munici-

pal Code entitled “Testing Stations” and all of the

sections enumerated therein is hereby repealed.

-s%

2a

Section 2. This ordinance is hereby declared to be

an emergency measure necessary for the preservation

of the public peace, health, safety and general wel-

fare, and shall go into effect forthwith. The reason

for the emergency is the immediate avoidance of ad-

ditional financial losses arising out of the operation

of the Safety Lane.

Passed February 11 A.D., 1981

/s/ David Mann

Mayor

Attest: /s/ Webster W. Posey

Clerk

I Hereby Certify That Ordinance No. 45-1981 was -

Published in the City of Cinn. in Accordance With

the Charter of 2/24/81.

/s8/ Webster W. Posey

Clerk of Council

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