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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 999

## Text

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

W 6. 6. covennwant reumrine orrice, toe 944000 6808

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1249%3A2. Public record. Not legal advice.