Petition — American Petroleum Institute v. Gorsuch

8 1 * 1 0 1 9 Win Court, U.S.

ILED

No. DEC 1 198]

IN THE ee 4

Supreme Court of the United States

OCTOBER TERM, 1981

City OF Houston, TEXAS,

Petitioner,

v.

ANNE M. GORSUCH, ADMINISTRATOR, and

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

COURTENAY ELLIs *

CLINTON R. BATTERTON

AKIN, GUMP, STRAUSS, HAUER

& FELD

Suite 400

1333 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 887-4000

* Counsel of Record

Of Counsel:

JAMES C. FAULKNER

Assistant City Attorney

City of Houston

December 1, 1981

— — — —

WILSON - Eres PRINTING CO.. INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether the Clean Air Act and the “taking” clause

of the Fifth Amendment of the United States Constitu-

tion permit the Administrator of the Environmental

Protection Agency to refuse to consider natural condi-

tions in promulgating primary and secondary national

ambient air quality standards, even if the result may be

to impose severe restrictions on human activity in a

major city because of violations attributable to natural

conditions.

2. Whether it was arbitrary, capricious and an abuse

of discretion for the Administrator of the Environmental

Protection Agency to reject evidence that mandatory con-

trol regulations for attaining the national ambient air

quality standards for ozone will not work in Houston,

Texas.

(i)

ii

LIST OF PARTIES

The parties before the court of appeals included the

City of Houston; the American Petroleum Institute and

15 of its member companies (Atlantic Richfield Company,

Continental Oil Company, Exxon Company U.S. A., Getty

Oil Company, Gulf Oil Corporation, Grace Petroleum

Corporation, Kerr-McGee Corporation, Mobil Oil Corpo-

ration, Pennzoil Company, Shell Oil Company, Standard

Oil Company (Indiana), The Standard Oil Company

(Ohio), Texaco Inc., Union Oil Company of California,

and Witco Chemical Corporation) ; the Chemical Manu-

facturers Association and four of its member companies

(American Cyanamid Company, Diamond Shamrock

Corporation, Ethyl Corporation, and Northern Petro-

chemical Company); the Commonwealth of Virginia,

ex rel. the State Air Pollution Control Board; E. I. du

Pont de Nemours & Company; the St. Louis Regional

Commerce and Growth Association; the State of Okla-

homa; the Natural Resources Defense Council; the Dela-

ware Valley Citizens Committee for Clean Air, Inc.; the

Connecticut Lung Association, Inc.; the American Lung

Association; and the Sierra Club.

INDEX

Opinions Below

3 ——

Constitutional Provisions and Statutes Involved ............

Statement of the Case

Reasons for Granting Review

I. The Agency and the Court of Appeals Errone-

ously Refused to Consider Whetier the Ozone

Standard Will Penalize Houston for Failing to

Zr

II. The Agency Arbitrarily and Capriciously Re-

jected Houston’s Evidence that EPA’s § 110 Con-

trol Strategy Regulations Will Not Work in

(((( -

Conclusion

(iii)

1 — —

13

13

17

21

iv

TABLE OF AUTHORITIES

Cases: Page

Brady v. City and County of Denver, 593 P.2d 1254

. a eriteniiin 13

Citizens to Preserve Overton Park v. Volpe, 401

Cc 20

Lead Industries Ass'n v. EPA, 647 F. 2d 1130 (D.C.

Cir.), cert. denied, 449 U.S. 1042 (1980) 12

Melong v. Micronesian Claims Comm’n, 569 F.2d

,, eestenamtiiettth 13

Natural Resources Defense Council v. EPA, No.

79-1639 (D.C. Cir. filed May 7, 19817777 12, 15

Nectow v. City of Cambridge, 277 U.S. 183 (1928).. 16

Penn Central Transportation Co. v. New York

In 16

Quinn v. Butz, 510 F.2d 743 (D.C. Cir. 1975)........ 13

Union Elec. Co. v. EPA, 427 U.S. 246 (1976)........ passim

Constitution and Statutes:

U.S. Const. amend, V V 16

Administrative Procedure Act

§ 10 (e), 5 U.S.C. § 706 20

Clean Air Act

§ 108, 42 U.S.C. 8 7408 2,9

§ 109, 42 U.S.C. § 7409 3,9

t passim

§ 172, 42 U.S.C. § 7502 9

§ 307, 42 U.S.C. § 7607 11, 20

Environmental Research, — * Demon-

stration Authorization Act of 1978

I eee 14

Regulations:

r 6, 9

eee 7, 10, 17

40 C. F. R. 5 51.14 (e) (8) 7

Vv

TABLE OF AUTHORITIES—Continued

Legislative Materials: Page

S. Rep. No. 91-1196, 91st Cong., Ist Sess. 2-3

(1970) 15

Miscellaneous:

43 Fed. Reg. 23,968 (1978) .. — 10

Gr Res 9

Fo SG OS 10

I . 16

46 Fed. Reg. 7193 (198177777 18

National Commission on Air Quality, To Breathe

... ees 14, 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

No.

City oF HousToN, TEXAS,

y Petitioner,

ANNE M. GorsucH, ADMINISTRATOR, and

ENVIRONMENTAL PROTECTION AGENCY,

Respondents."

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The City of Houston, Texas, petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the District of Columbia Circuit

in this case.

OPINIONS BELOW

The opinion of the court of appeals [Appendix

(“App.”), infra] is not yet reported. The statements of

basis and purpose for the regulations of the Environ-

mental Protection Agency at issue in this case are re-

ported at 44 Fed. Reg. 8202 (1979) and 44 Fed. Reg.

8237 (1979).

JURISDICTION

The judgment of the court of appeals was entered on

September 3, 1981. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

1 Pursuant to Supreme Court Rule 40.3, the caption of this case

has been changed in this petition to reflect the fact that Anne M.

Gorsuch has replaced Douglas M. Costle as Administrator of the

Environmental Protection Agency.

2

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The Fifth Amendment of the United States Constitu-

tion in pertinent part provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury,

nor shall private property be taken for public use,

without just compensation

The Clean Air Act, in pertinent part provides:

Clean Air Act § 108, 42 U.S.C. § 7408

Air quality criteria and control techniques

(a) (2) The Administrator shall issue air quality

criteria for an air pollutant within 12 months after

he has included such pollutant in a list under para-

graph (1). Air quality criteria for an air pollu-

tant shall accurately reflect the latest scientific

knowledge useful in indicating the kind and extent

of all identifiable effects on public health or welfare

which may be expected from the presence of such

pollutant in the ambient air, in varying quantities.

The criteria for an air pollutant, to the extent prac-

ticable, shall include information on

(A) those variable factors (including atmos-

pherie conditions) which of themselves or in

combination with other factors may alter the

effects on public health or welfare of such

pollutant;

(B) the types of air pollutants which, when

present in the atmosphere, may interact with

such pollutant to produce an adverse effect on

public health or welfare; and

(C) any known or anticipated adverse effects

on welfare.

Clean Air Act 8 109, 42 U.S.C. § 7409

National primary and secondary

ambient air quality standards

Protection of public health and welfare

(b) (1) National primary ambient air quality

standards, prescribed under subsection (a) of this

section shall be ambient air quality standards the

attainment and maintenance of which in the judg-

ment of the Administrator, based on such criteria

and allowing an adequate margin of safety, are

requisite to protect the public health. Such primary

standards may be revised in the same manner as

promulgated.

(2) Any national secondary ambient air quality

standard prescribed under subsection (a) of this

section shall specify a level of air quality the attain-

ment and maintenance of which in the judgment of

the Administrator, based on such criteria, is requi-

site to protect the public welfare from any known

or anticipated adverse effects associated with the

presence of such air pollutants in the ambient air.

Such secondary standards may be revised in the

same manner as promulgated... .

Clean Air Act, § 110, 42 U.S.C. § 7410

State implementation plans for national

primary and secondary ambient

air quality standards

Adoption of plan by State; submission to

Administrator; content of plan; revision;

new sources; indirect source review program;

supplemental or intermittent control systems

(a) (1) Each State shall, after reasonable notice

and public hearings, adopt and submit to the Ad-

ministrator, within nine months after the promul-

gation of a national primary ambient air quality

standard (or any revision thereof) under section

7409 of this title for any air pollutant, a plan which

4

provides for implementation, maintenance, an“ en-

forcement of such primary standard in each air

quality contro] region (or portion thereof) within

such State. in addition, such State shall adopt and

submit to the Administrator (either as a part of a

plan submitted under the preceding sentence or sep-

arately) within nine months after the promulgation

of a national ambient air quality secondary standard

(or revision thereof), a plan which provides for im-

plementation, maintenance, and enforcement of such

secondary standard in each air quality control region

(or portion thereof) within such State. Unless a

separate public hearing is provided, each State shall

consider its plan implementing such secondary stand-

ard at the hearing required by the first sentence of

this paragraph.

(2) The Administrator shall, within four months

after the date required for submission of a plan

under paragraph (1), approve or disapprove such

plan for each portion thereof. The Administrator

shall approve such plan, or any portion thereof, if

he determines that it was adopted after reasonable

notice and hearing and that—

(A) except as may be provided in subparagraph

(I) (i) in the case of a plan implementing a

national primary ambient air quality standard,

it provides for the attainment of such primary

standard as expeditiously as practicable but

(subject to subsection (e) of this section) in no

case later than three years from the date of

approval of such plan (or any revision thereof

to take account of a revised primary standard) ;

and (ii) in the case of a plan implementing a

national secondary ambient air quality stand-

ard, it specifies a reasonable time at which such

secondary standard will be attained;

(B) it includes emission limitations, schedules,

and timetables for compliance with such limi-

tations, and such other measures as may be

necessary to insure attainment and mainte-

5

nance of such primary or secondary standard,

including, but not limited to, transportation

controls, air quality maintenance plans, and

preconstruction review of direct sources of air

pollution as provided in subparagraph (D);

(C) it includes provision for establishment and

operation of appropriate devices, methods, sys-

tems, and procedures necessary to (i) monitor,

compile, and analyze data on ambient air qual-

ity and, (ii) upon request, make such data

available to the Administrator.

(D) it includes a program to provide for the

enforcement of emission limitations and regula-

tion of the modification, construction, and

operation of any stationary source, including a

permit program as required in parts C and D

of this subchapter and a permit or equivalent

program for any major emitting facility, within

such region as necessary to assure (i) that

national ambient air quality standards are

achieved and maintained, and (ii) a procedure,

meeting the requirements of paragraph (4), for

review (prior to construction or modification)

of the location of new sources to which a stand-

ard of performance will apply;

(E) it contains adequate provisions (i) pro-

hibiting any stationary source within the State

from emitting any air pollutant in amounts

which will (I) prevent attainment or mainte-

nance by any other State of any such national

primary or secondary ambient air quality stand-

ard, or (II) interfere with measures required

to be included in the applicable implementation

plan for any other State under part C of this

subchapter to prevent significant deterioration

of air quality or to protect visibility, and (ii)

insuring compliance with the requirements of

section 7425 of this title, relating to interstate

pollution abatement ....

6

Preparation and publication by Administrator

of proposed regulations setting forth

implementation plan; transportation regulations

study and report; parking surcharge; suspension

authority; plan implementation

(e) (1) The Administrator shall, after consid-

eration of any State hearing record, promptly pre-

pare and publish proposed regulations setting forth

= — plan, or portion thereof, for a

tate if—

(A) the State fails to submit an implementa-

tion plan which meets the requirements of this

section,

(B) the plan, or any portion thereof, sub-

mitted for such State is determined by the Ad-

ministrator not to be in accordance with the

requirements of this section, or

(C) the State fails, within 60 days after noti-

fication by the Administrator or such longer

period as he may prescribe, to revise an imple-

mentation plan as required pursuant to a provi-

sion of its plan referred to in subsection (a)

(2) (H) of this section

The EPA regulations in issue in pertinent part

provide:

National primary and secondary ambient

air quality standards for ozone,

40 C.F.R. § 50.9

(a) The level of the national primary and sec-

ondary ambient air quality standards for ozone

measured by a reference method based on Appendix

D to this part and designated in accordance with

Part 53 of this chapter, is 0.12 per part million (235

ug/m3). The standard is attained when the ex-

pected number of days per calendar year with maxi-

mum hourly average concentrations above 0.12 part

per million (235 ug/m3) is equal to or less than 1,

7

as determined by Appendix H. 44 Fed. Reg. 8220,

col. 3 (1979). 1 i 5

(7) In selecting an appropriate model to deter-

mine the amount of hydrocarbon reductions neces-

sary to demonstrate attainment of the ozone stand-

ard, one of the following techniques must be applied:

(i) Photochemical dispersion models — These

models are based on the most accurate available

physical and chemical principles underlying the

formation of ozone.

(ii) Empirical Kinetics Modeling Approach

(EKMA)—This model represents a compromise

between rigorous treatment of chemical and

physical principles underlying ozone formation

and dispersion and the extensive data require-

ment that would be necessitated by such an

approach.

(iii) Empirical and statistical models—These

models reflect observed relationships between

ozone and other variables.

(iv) Proportional rollback—This model as-

sumes a linear relationship between hydrocar-

bon emissions and ambient concentrations of

— 8 @ * *

(8) In developing an ozone control strategy for

a particular area, background ozone concentrations

and ozone transported into an area must be con-

sidered. States may assume that the ozone stand-

ard will be attained in upwind areas... .

Control strategy: Carbon monoxide, hydrocarbons,

ozone, and nitrogen dioxide,

40 C. F. R. § 51.14

(a) Priority I Regions. (1) Each plan for a

region classified Priority 1 with respect to carbon

monoxide, ozone, or nitrogen dioxide shall set forth

a control strategy which shall provide for the degree

8

of emission reduction necessary for attainment and

maintenance of the national standard for each such

pollutant after consideration of the emission reduc-

tions that will result from the application of Federal

motor vehicle emission standards promulgated pur-

suant to section 202 of the Act.

(2) The plan shall contain: (i) A description of

enforcement methods including, but not limited to,

procedures for monitoring compliance with the

selected traffic control measures, procedures for han-

dling violations, and a designation of enforcement

responsibilities (i.e., air pollution control agency,

State police, State Department of Motor Vehicles,

State Registrator of Motor Vehicles, etc.)

(ii) Proposed or adopted rules and regulations

pertaining to the selected transportation control

measures.

(iii) A description of administrative proce-

dures to be used in implementing all selected

transportation control measures, including, but

not limited to, methods of achieving transporta-

tion improvements and a designation of respon-

sibility for administration of such procedures

(e.g., State Treasurer responsible for purchase

of buses).

(iv) A schedule designating dates by which

legal authority necessary to implement the plan

will be obtained, other significant steps in the

implementation of the plan will be achieved and

each control measure will be implemented.

(b) Control strategy development. In a region

in which attainment and maintenance of a national

standard will require emission reductions in addition

to those which will result from application of the

Federal motor vehicle emission standards, the con-

trol strategy shall provide for application of such

other measures as may be necessary for attainment

and maintenance of such national standard.

9

(e) Adequacy of control strategy. (1) The plan

shall demonstrate, by means of a proportional model

or diffusion, photochemical model or other procedure

which is adequate and appropriate, that the control

strategy included in each plan for a region classified

as priority I is adequate for attainment and mainte-

nance of the national standard(s) to which such

control strategy applies. Control measures shall not

result in an increase in the concentration of any

pollutant to a level that exceeds a national ambient

air quality standard. The plan shall include provi-

sions as necessary to prevent such increases in con-

centrations as a result of traffic increases that

may be stimulated by transportation control

measures

STATEMENT OF THE CASE

Ozone is produced in the atmosphere through complex

chemical reactions between organic compounds (“pre-

cursors”) and nitrogen oxides in the presence of sun-

light. App. at 6a. “Precursors” include hydrocarbon

emissions from vehicles and from industrial sources, and

natural emissions from vegetation. Jd. In addition, ozone

from the stratosphere may intrude into the lower atmos-

phere. Id. In 1979, respondent Environmental Protection

Agency (“EPA”) promulgated regulations establishing

national primary and secondary ambient air quality

standards for ozone, pursuant to §§ 108 and 109 of the

Clean Air Act, 42 U.S.C. Ss 7408, 7409. 44 Fed. Reg.

8202 (1979), codified at 40 C. F. R. $50.9 (1981). The

regulations restrict the maximum permissible ozone

levels, under both the primary and secondary standards,

to 0.12 parts per million (“p.p.m.”), which may not be

exceeded more often than an average of one day in any

three-year period. 44 Fed. Reg. at 8220. The standard

must be met by December 31, 1982 or, with an exten-

sion for good cause shown, no later than December 31,

1987. 42 U.S.C. § 7502. At the same time, the EPA

promulgated regulations that force the States, in draft-

10

ing implementation plans to carry out the new standard,

to choose one of four “models” for determining the

amount by which hydrocarbon emission must be reduced

in order to achieve the ozone standard, 44 Fed. Reg.

8237 (1979), codified at 40 C. F. R. § 51.14 (e) (7) (1981).

Petitioner, the City of Houston, Texas ( Houston“),

participated in the rulemaking through its City Health

Department. Houston was concerned that the City’s

high levels of ozone of natural origin would not be ade-

quately considered by the agency in setting the standard

and in establishing a workable control strategy. Even in

the absence of emissions from industry, transportation

or other human activity, natural sources in Houston

create relatively high concentrations of ozone, making

compliance with the standard impossible for the indefinite

future. Rulemaking Record, II-D-97; VI-18; IIA-E ()-

47; Joint Appendix (“J.A.”) 1613-16; 1621-29; 1651-55.

Houston presented evidence that natural sources gen-

erate ozone levels ranging from 0.04 to as high as 0.13

p.p.m. in the Houston area. Rulemaking Record, Hous-

ton Petition, II-D-97 at 45-46. High ozone levels have

persisted in Houston despite a 40% reduction in man-

made hydrocarbon emissions. Id. at 18-19.

The agency refused to consider natural conditions in

Houston. EPA did recognize, however, that natural con-

ditions may have a substantial effect upon ambient ozone

levels. For example, in its brief to the court of appeals,

EPA justified its “rolling three-year average” method of

measuring compliance, which permits an average of one

day per year in which the ozone level exceeds the standard

for one hour or more, as an attempt to factor out “the

effects of unusual weather conditions in any single year.”

EPA Brief to D.C. Cireuit at 143, citing 43 Fed. Reg.

23,968 (1978) (notice of proposed rulemaking). In

criticizing Houston’s evidence that ozone emissions in the

Houston area have not declined despite declining man-

made hydrocarbon emissions, the agency insisted that a

11

much longer period of study is essential to factor out the

effects of adverse weather conditions thus, once again

recognizing the impact of natural forces on ozone levels.

44 Fed. Reg. at 8235. In the preamble to the regulation,

the agency also acknowledged that:

The maximum ozone concentrations which will occur

in any given time period will vary from one period

to the next, even if precursor emissions remain con-

stant. These variations are mainly due to the ran-

dom nature of meteorological factors which affect

the formation and dispersion of ozone in the atmos-

phere.

44 Fed. Reg. at 8218. The agency admitted that natural

background levels of ozone may exceed 0.08 p.p.m. at a

“not insignificant” rate, but contended, generally, that

a natural level in excess of 0.12 p.p.m. “can be consid-

ered quite rare at any particular location.” 44 Fed. Reg.

at 8212.

Becat e Houston’s high total ozone levels have per-

sisted even in the face of substantial reductions in local

hydrocarbon emissions, J.A. 1269, 1651-55, Houston also

expressed concern that a control strategy directed solely

toward the further reduction of hydrocarbon emissions

without any consideration of the impact of oxides of

nitrogen emissions would not effectively reduce ozone

levels in Houston. Rulemaking Record, II-D-97; J.A.

1613-15.

With respect to Houston’s first concern—the problem

of natural ozone—the court of appeals on review re-

2 EPA referred generally to unspecified data which it had assert-

edly compiled over a number of years. Id.

The court of appeals had jurisdiction to review the rulemaking

under 42 U.S.C. § 7607.

12

jected Houston’s argument that the 0.12 p.p.m. standard

should be invalidated because natural conditions make at-

tainment physically impossible. Relying upon its deci-

sion in Lead Industries Ass’n v. EPA, 647 F.2d 1130

(D.C. Cir.), cert. denied, 449 U.S. 1042 (1980), the court

of appeals approved EPA’s refusal to consider whether

the standards were economically or technologically

feasible or even attainable at all. App. at 15a. In-

deed, the court expressly ruled that “[a]ttainability

and technological feasibility are not relevant consid-

erations in the promulgation of national ambient air

quality standards.” Id. Citing Natural Resources De-

fense Council v. EPA, No. 79-1639 (D.C. Cir. filed

May 7, 1981), the court of appeals added that the

agency need not create local exceptions to national

ambient air quality standards. Id. On the same theories,

EPA also refused even to place in the rulemaking record

one of its own studies of the impact of natural hydro-

carbon emissions on ozone formation, which had been

secured from the agency by the American Petroleum

Institute, the petitioner in No. 81-871, under the Free-

dom of Information Act. J.A. 1003, 1073.

With respect to Houston’s second concern—that EPA's

prescribed control strategy would be ineffective—the

agency rebuffed Houston’s challenge to the mandatory

hydrocarbon control strategy regulations by question-

ing Houston's evidence that declining hydrocarbon

emissions in Houston have not reduced ozone levels.

EPA argued that other studies support the general

proposition that a reduction in hydrocarbon emissions

will assist in the reduction of ozone levels; that Hous-

ton would have to collect data for five to eight years

before its evidence would have any meaning; and that

Houston’s studies had failed to “normalize the trends for

meteorological differences.” 44 Fed. Reg. at 8235.

13

REASONS FOR GRANTING REVIEW‘

I. The Agency and the Court of Appeals Erroneously

Refused to Consider Whether the Ozone Standard Will

Penalize Houston for Failing to Do the Impossible.

This case presents a novel issue of substantial and

wide-ranging importance—whether the Clean Air Act

permits the Administrator of the EPA to establish a

national ambient air quality standard that is unlikely

ever to be met by one of the largest cities in the United

States, not because the standard is economically or tech-

nologically infeasible, but simply because natural condi-

tions inevitably place that city in a position of non-

compliance. In this case, the agency has refused to con-

sider evidence that Houston may not meet the prescribed

standard even if human activity in Houston were sub-

stantially reduced or eliminated entirely.

It need not be said that the Clean Air Act is designed

to reduce human, not natural, emissions. The Act does

not require the States to restrict the emissions of plant

and animal life or to control the weather.“ Nor may the

Act be so construed. It is a basic principle of statutory

construction that a statute should not be construed to

require the absurd or the impossible. See e.g., Quinn v.

Butz, 510 F.2d 743, 753 (D.C. Cir. 1975) (“The con-

struction of a statute leading to unjust or absurd con-

sequences should be avoided.“ ; Melong v. Micronesian

Claims Comm’n, 569 F.2d 630, 634 (D.C. Cir. 1977) (“A

construction ... leading... to patent absurdity is

obviously to be avoided”) ; Brady v. City and County of

* Houston concurs with the petition of the American Petroleum

Institute in No. 81-871, but shall not in this petition reiterate

API’s reasons for granting review.

See, e. g., 42 U.S.C. 5 7410 (a) (2), which provides that air

quality standards are to be met by controls on emissions resulting

from human activity, such as transportation controls, vehicle in-

spection programs, stationary source standards for the operation

and new construction of manufacturing plants, and the like.

14

Denver, 508 P.2d 1254, 1256 (Colo. 1973) (“No provi-

sion of law should be interpreted in a way which requires

an impossible task.”). Here, the agency and the court

of appeals would permit just such an absurd result

by refusing even to consider the effects of climatic

conditions and natural ozone sources. As one of the

agency’s Science Advisory Board“ members noted, “if

you were to go to the standard setting and set the

standards lower than the natural background, this would

be purely ridiculous.” J. A. Ex. 2 at 100.“

The Congress may have intended to rely, in part, upon

“technology forcing” (requiring future compliance with

a standard that might be met only with the development

of new technology), or may have accepted the possibility

that businesses that could not find economically feasible

means of compliance would be forced to close their doors.“

It is inconceivable, however, that Congress, through the

Clean Air Act, intended EPA to impose requirements

that are unattainable because of nature and then to

saddle one of the largest cities in the United States with

a futile attempt to comply with an impossible air quality

standard.“

Congress has required the agency to consult with a “Science

Advisory Board” in the course of promulgating air quality stand-

ards. 42 U.S.C. § 4365. See the API petition in No. 81-871.

7In addition, a researcher for the National Science Foundation

studying the “intrusion” of natural ozone from the stratosphere

warned EPA that the level from intrusion alone could reach 0.25

p.p.m. for one hour, and wondered aloud as to what the agency

would do if “Mother Nature” violated the standard. J.A. Ex. 1 at

4-51; Rulemaking Record IV-F-11 at 40, 40.

8 See n.12, infra.

The evidence in the rulemaking record has been further sub-

stantiated by the subsequent report of the National Commission

on Air Quality, 70 Breathe Clean Air (1981), which concludes

that Houston and several California cities will regularly exceed

the standard even after 1987. Id. at 121, 126. EPA subsequently

recognized, in part, the impossible burden which it has imposed

15

With the standard in place, Texas is obligated to pro-

duce a state implementation plan which will assure

Houston’s compliance by the final statutory deadline,

December 31, 1987. 42 U.S.C. § 7410. If Houston busi-

nesses cannot comply, they may be closed down.“ Natural

ozone levels will ensure that the net impact of any

attempt at full compliance will be severe.“ Given the

upon Houston and other cities, and authorized Texas to submit a

state implementation plan which would postpone Houston’s day of

reckoning beyond 1987. 46 Fed. Reg. 7182 (1981). EPA questioned

its own statutory authority to permit such a delay; imposed a

requirement of a particularly clear showing that the 1987 deadline

cannot be met; and offered no opinion as to whether Houston could

meet even such an extended deadline. Jd. The agency’s interpreta-

tion is no less absurd merely because the Clean Air Act contemplates

a uniform national standard. Moreover, the only authority cited by

the court of appeals for excusing the agency on this ground was

its opinion in Natural Resources Defense Council v. EPA, No. 79-

1639, slip op. at 34 (D.C. Cir. May 7, 1981). There, the court re-

jected an argument presented by the City of Anchorage, Alaska,

to the effect that the city would have great difficulty monitoring

compliance with the EPA’s standards for water pollution because

of the 30-foot tides in Cook Inlet and because of the presence of ice

in the inlet in winter. Citing no authority, the court rejected the

city’s concerns with a one-sentence statement that because the Act

contemplates national standards, the agency need not consider local

ecmpliance problems. However, the court was concerned that the

regulations were unduly inflexible and relied, in part, upon EPA’s

assurance that the regulations “will be enforced with flexibility and

discretion.” Jd. Here, by contrast, the standard may not be met at

all due to natural conditions and no similar assurance has been

offered.

10 As noted above, n.9, it may now be possible for Houston to

postpone this date for some period beyond 1987.

11 In Union Elec. Co. v. EPA, 427 U.S. 246, 258-59 (1976), this

Court noted that the Senate committee that considered the Clean

Air Act “determined that existing sources of pollutants either

should meet the standard of the law or be closed down...” S. Rep.

No. 91-1196 91st Cong., Ist Sess. 2-3 (1970).

12 Unlike an industrial business entity faced with serious com-

pliance problems, Houston may not ask Texas to impose a heavier

16

indisputable premise of the Clean Air Act that the pri-

mary and secondary ambient air quality standards are

to be achieved by controlling man-made emissions, whether

through present or future control technology or by clos-

ing down emission sources, it was an error for the agency

and the court of appeals to refuse to permit considera-

tion of Houston’s evidence that natural ozone levels would

exceed or easily force Houston over the standard. The

significance of this basic issue of statutory construction

to Houston and to the other sectors of the United States

which may face similar problems is substantial and war-

rants this Court’s consideration.”

If the statute must be construed to permit the imposi-

tion of severe standards upon Houston with no prospect

of compliance, due to natural conditions, then the Act

must pass muster under the “taking” clause of the Fifth

Amendment of the United States Constitution. This Court

has identified two tests to be used to determine whether

an unconstitutional taking has occurred: (1) whether the

regulation is “not reasonably necessary to the eflectua-

tion of a substantial public purpose”; or (2) whether

it has an “unduly harsh impact upon the owner’s use of

the property.” Penn Central Transportation Co. v. New

York City, 438 U.S. 104, 127 (1978). See also Nectow v.

City of Cambridge, 277 U.S. 183 (1928). In this case,

the regulations are not “reasonably necessary to the effec-

tuation of a substantial public purpose” if forces of

nature will cause them to be violated in Houston regard-

less of efforts to control man-made emissions and if, as

burden on another area so that Houston may face less stringent

controls. See Union Electric, supra, 427 U.S. at 266.

10 In addition to Houston, EPA expects a “few” other urban

areas to fail to comply with the standards by 1987. 46 Fed. Reg.

7182 (1981). A total of 24 states have requested extensions to

1987 to comply with the ozone standard. Id. at 7190. The National

Commission on Air Quality expects at least 32 U.S. counties to be

in violation of the standard after 1987. To Breathe Clean Air 143

(1981).

17

discussed below, the emission controls prescribed by the

regulations are not effective in reducing ozone levels in

Houston. The regulations are “unduly harsh” if, as the

court of appeals found, Houston must attempt full com-

pliance regardless of natural ozone levels.

II. The Agency Arbitrarily and Capriciously Rejected

Houston’s Evidence that EPA’s § 110 Control Strategy

Regulations Will Not Work in Houston.

EPA compounded its error in refusing io consider

Houston’s evidence of the impact of the natural produc-

tion of ozone by also refusing to consider the impact of

its control strategy regulations on Houston. Despite the

evidence that substantial reductions of hydrocarbon emis-

sions have not reduced ozone levels in Houston, EPA’s

prescription for compliance is to keep on requiring ever

greater reductions in hydrocarbon emissions. EPA ar-

gues that Texas and Houston have discretion to impose

additional controls on oxides of nitrogen on top of the

mandatory hydrocarbon emission reductions if they

choose. But EPA refused to consider the possibility that

its regimen of hydrocarbon reductions would be a point-

less exercise for the citizens of Houston.

The control strategy regulations are in the form of a

directive that each State implementation plan for the

attainment of the ozone standard shall contain provisions

for the reduction of hydrocarbon emissions. The extent

to which hydrocarbon emissions must be reduced is to be

measured by one of four “models,” each of which pro-

vides a separate method for projecting expected reduc-

tions in ozone, and all of which require substantial re-

ductions of hydrocarbons. 40 C. F. R. § 51.14 (e) (7)

(1981).

Each of the “models” for measuring the probable

success of state implementation plans in reducing

ozone levels is based entirely upon the supposition that

a reduction in hydrocarbon levels shall be uniformly

18

effective in all parts of the United States.“ EPA’s regu-

lations therefore refuse to accept any state implemen-

tation plan that does not purport to reduce ozone levels

to the standard by reducing hydrocarbo:: emissions. Even

if there is to be only one, national, standard of air qual-

ity, it does not follow that the EPA therefore should be

entitled to impose control strategies that do not and

cannot work in particular areas, even with the imposi-

tion of draconian control measures.

In this case, Houston argued, inter alia, that its

evidence demonstrated that the agency should consider

the impact of the emission of oxides of nitrogen (“NOx’’)

and the mix of such oxides with hydrocarbons in Hou-

ston. 44 Fed. Reg. at 8205.“ EPA’s response was that

14 One model, the “EKMA” model, permits some consideration of

nitrogen oxide levels, but only if the City pursues an even greater

reduction of hydrocarbon levels, which to date has been ineffective.

EPA brief to D.C. Circuit at 140 n.134; J.A. 1645. In 1981, the

agency proposed to eliminate the “proportional rollback” control

strategy “model.” 46 Fed. Reg. 7193 (1981).

18 The correctness of Houston’s position has been further con-

firmed by the subsequent report of the National Commission on

Air Quality, To Breathe Clean Air 141 (1981), which concluded:

Commission and other studies indicate that further control

of both hydrocarbon and nitrogen oxides emissions will be

necessary to enable areas exceeding the ozone standard to meet

this standard (Shutler, 1980; SAI, 1980b). The basic chemis-

try of ozone formation from hydrocarbons and nitrogen oxides

is well established and does not vary from site to site. How-

ever, the effect of controlling hydrocarbon or nitrogen oxides

emissions will vary depending upon such local conditions as

the ratio of hydrocarbon emissions to nitrogen oxides emissions

in the atmosphere. The Commission’s panel of experts stated

that controlling hydrocarbons will almost always have a benefi-

cial effect on reducing ozone levels except in areas with severe

ozone non-attainment problems. [N.B.—such as Houston.]

Control of hydrocarbon alone is more likely to have little or

no effect where there are very high levels of hydrocarbons

compared to the levels of nitrogen oxides. (Shutler, 1980).

The role of nitrogen oxides in ozone production is an important

factor in determining the benefits of controlling emissions of

19

Houston and Texas would have to determine for them-

selves what should be done with NOx emissions, drafting

their own standards as necessary to comply with the

national ozone standard. Id. In effect, EPA’s response

is that even if a reduction of hydrocarbon emissions in

Houston would be pointless, Houston, while incurring the

costs of such a futile exercise, could, in addition, adopt

potentially efficacious NOx emission standards.

EPA also pointed to evidence in the record that sup-

ports the general proposition that ozone levels are de-

pendent, at least in part, upon the level of hydrocarbons

in the atmosphere. Even if this proposition is correct, it

does not follow that the reduction of hydrocarbon emis-

sions generated through human activity in the Houston

area will reduce the ozone level in Houston to the 0.12

p.p.m. standard that EPA has set. EPA implicitly con-

ceded as much when it attempted to discount Houston’s

data by arguing that Houston had not factored out Hous-

ton’s climatological conditions. Indeed, the record is

replete with evidence that climatological conditions may

have a direct and immediate effect on ozone levels, as

noted above. Moreover, EPA belittled Houston’s evidence

by applying it against an impossible standard—contend-

ing that only a study of up to eight years’ duration

could be considered accurate, and apparently believing

that this was a good reason to refuse to confront the

problem in the meantime. As to the impact of NOx

emissions, EPA concluded only that its “data base” was

hydrocarbons or nitrogen oxides. Emissions of nitrogen oxides

can either :educe or increase ozone levels, depending on local

conditions.

* * + *-

After considering the costs and benefits of nitrogen oxides

control, the Commission’s panel of experts supported additional

reasonable controls of nitrogen oxides. However, the panel

emphasized that the complex behavior of hydrocarbons, nitro-

gen oxides, and ozone in the atmosphere dictates that different

control plans should be developed for different areas of the

country. (Shutler, 1980).

insufficient to establish the impact of ozone precursors

other than hydrocarbons. 44 Fed. Reg. at 8205. EPA

simply refused to come to terms with the question

whether the control strategy would work in Houston.

EPA cited §110 of the Clean Air Act as authority

for the control strategy regulations. There can be no

question, however, that § 110 of the Clean Air Act re-

quires the Administrator to approve state implementation

plans that are effective in attaining compliance with the

national ambient air quality standards and to dis-

approve those that do not promise reasonable and

timely attainment. This Court found as much in Union

Electric, supra. There, the Court noted that the Admin-

istrator is obligated, under § 110, to consider whether

it is feasible for a state plan to require more progress

than it does, in order to achieve the primary standards

“as expeditiously as practicable’ and the secondary

standards within a “reasonable time.” 427 U.S. at

264-65 & n.13.

At a bare minimum, EPA should have considered the

effectiveness of its compliance regulations in light of

natural and climatological conditions. In light of the

evidence that Houston will never be able to comply with

the standard, EPA should have reviewed the question of

an appropriate control strategy with exceptional care.

At the very least, the cost of this futile effort could have

been minimized and the reduction in ozone levels, even if

insufficient to meet the standard, could have been maxi-

mized. EPA’s cavalier dismissal of Houston’s evidence

as to the efficacy of the control strategy did not consider

all relevant factors and therefore was arbitrary, ca-

pricious and an abuse of discretion.“ In consequence,

16 The standard for review of the control strategy regulations

is set forth in the Administrative Procedure Act at 5 U.S.C. § 706,

which requires the Administrator to demonstrate a consideration

of all relevant factors in promulgating regulations. Citizens to

Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). The

air quality standards themselves are subject to review under sepa-

rate standards set forth in the Clean Air Act. 42 U.S.C. § 7607.

21

EPA and the court below have required Houston not

only to achieve the impossible, but also to pursue an in-

effective means of trying to do so.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

COURTENAY ELLIS

CLINTON R. BATTERTON

AKIN, GUMP, STRAUSS, HAVER

& FELD

Suite 400

1333 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 887-4000

Of Counsel:

JAMES C. FAULKNER

Assistant City Attorney

City of Houston

December 1, 1981