Amicus Brief — American Petroleum Institute v. Gorsuch

Office - Supreme Court, U.S.

FILED

6g 10

No. 81-1019 FEB 20 Wee

ALBMANDER L. STEVAS,

** * CLERK zx

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981.

CITY OF HOUSTON, TEXAS,

Petitioner

Vv.

ANNE M. GORSUCH, ADMINISTRATOR,

AND

ENVIRONMENTAL PROTECTION AGENCY,

Respondents,

* * *

BRIEF OF THE STATE OF TEXAS

AS AMICUS CURIAE

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

Attorney General

RICHARD E. GRAY, III

Executive Assistant

Attorney General

TIM BROWN

Chief, Environmental Protection

Division

P.O. Box 12548

Austin, Texas 78711

(512) 475-4143

TABLE OF CONTENTS

PAGE

INTEREST OF THE STATE OF TEXAS ................ ne

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I. The Agency and the Court of Appeals

Erroneously Retused to Consider

Whether the Ozone Standard Will Be

Attainable in the Houston Area.................... 2

II. The Agency's Regulations Impose

Specific Control Strategies on the States,

Contrary to the Provisions of the Clean

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TABLE OF AUTHORITIES

CASES

Alabama Power Co. v. Costle, 636 F2d 323

et cmeee ees

Lead Industries Association v. EPA, 647 F2d

1130 (D.C. Cir.), cert. denied, 449 U.S.

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Natural Resources Defense Council v. EPA,

656 F2d 768 (D.C. Cir.1981)................

Train v. Natural Resources Defense Council,

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

STATUTES

Clean Air Act

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$110, 42 U.S.C. §7410 ...................

§172, 42 U.S.C. §7472 ..............0..0...

REGULATIONS

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LEGISLATIVE MATERIALS

S. Rep. No. 91-1196, 91st Cong., lst Sess.

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PAGE

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

CITY OF HOUSTON, TEXAS,

Petitioner

V.

ANNE M. GORSUCH, ADMINISTRATOR.

AND

ENVIRONMENTAL PROTECTION AGENCY,

Respondents,

* * *

BRIEF OF THE STATE OF TEXAS

AS AMICUS CURIAE

Pursuant to Rule 36 of the Rules of the Supreme Court

of the United States, the State of Texas represented

herein by Mark White, Attorney General of Texas, files

this its brief as amicus curiae.

INTEREST OF THE STATE OF TEXAS

Under the Federal Clean Air Act, 42 U.S.C. §7401, et.

seq., the State of Texas is generally responsible for

maintaining and implementing a State Implementation

Plan (SIP) approved by the Environmental Protection

Agency (EPA) which provides for the attainment of Na-

tional Ambient Air Quality Standards (NAAQS) within

the State. Currently, Texas is required by Section

172(c) of the Clean Air Act, to submit by July, 1982,

Plan revisions that ‘‘assure’’ attainment of the ozone

standard in Harris County, including Houston, by the

end of 1987. Since the required revisions are primarily

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governed by the standard to be acheived, the State of

Texas is vitally interested in this litigation. In addition,

certain questions regarding the EPA’s authority in set-

ting the standards, which should be clarified by this

Court, will continue to affect the State of Texas in its

efforts to comply with the Clean Air Act.

SUMMARY OF ARGUMENT

The State of Texas generally concurs with the

arguments made by the City of Houston in its Petition

for Certiorari, but will not repeat those arguments here.

The State contends, first, that the Court of Appeals

erred in holding that evidence of impossibility of attain-

ment is irrelevant to the promulgation of a NAAQS.

This holding misconstrues the decision in Lead In-

dustries Association v. EPA, 647 F.2d 1130 (D.C.

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

area of confusion which requires review by this Court.

Second, the EPA’s control strategy regulations, 40

C.F.R. §50.14(c)(7), have the effect of imposing a par-

ticular method of ozone control on the states. This im-

position conflicts with the provisions of the Clean Air

Act, which gives the states primary responsibility for

the development of the State Implementation Plan.

ARGUMENT

I. The Agency And The Court Of Appeals

Erroneously Refused To Consider Whether the

Ozone Standard Will Be Attainable In The

Houston Area.

The decision below has disturbed the statutory role of

the EPA in setting environmental standards under the

Clean Air Act. The City of Houston has argued and

presented evidence that naturally occurring levels of

ozone in the Houston area make attainment of the 0.12

ppm standard impossible for the indefinite future. The

EPA and the Court of Appeals refused to consider this

-3-

argument, holding that impossibility of attainment is ir-

relevant in the promulgation of the standards. For this

conclusion the Court of Appeals relied' upon Lead In-

dustries Association v. EPA, 647 F.2d 1130 (D.C. Cir.),

cert. denied, 449 U.S. 1042 (1980), which held:

the Administrator may not consider

economic and technological feasibility in set-

ting air quality standards . . . [because] of a

deliberate decision by Congress to subordinate

such concerns to the achievement of health

goals.

647 F.2d at 1149.

This position was said to be ‘‘technology forcing”’, i.e.,

combining ambitious standards with strict compliance

requirements, in order to compel the development of bet-

ter pollution control methods. Ultimately, then, Lead

Industries held that the burdens complained of must be

borne because doing so will, one way or another, lead to

attainment. Though harsh, this approach is consistent

with both the Clean Air Act’s unqualified mandate that

the states provide for attainment by a specified date

(Clean Air Act §172; 42 U.S.C. §7472), and its apparent

intent that ‘‘sources of pollutants either should meet the

standard of the law or be closed down.” S.Rep. No.

91-1196, 91st Cong., lst Sess. 2-3 (1970), cited in Union

Electric Co. v. EPA, 427 U.S. 246 (1976) at 258-9.

In turn, the holding in Lead Industries was based in part on

this Court's decisions in Union Electric Co. v. EPA, 427 U.S.

246 (1976), and Train v. Natural Resources Defense Council,

421 U.S. 60 (1975). These cases established that economic and

technological factors are not to be considered in setting a

technology-forcing standard. Properly speaking, the stan-

dards in those cases were not challenged as ‘‘infeasible’’ but

merely as disutilitarian.

fe

The position presented by the City of Houston is com-

pletely distinguishable. We are not concerned here with

“economic or technological’’ infeasibility, but rather

with a literal impossibility. The question raised by the

City of Houston in the present case is whether the Act

authorizes a standard that cannot be achieved

regardless of the burdens assumed, including those con-

sidered in the Lead Industries decision. The Agency

and the Court of Appeals have refused to consider this

argument, holding that even if the evidence conclusively

showed that attainment is impossible by any means it

would be irrelevant as a matter of law.

This position is simply insupportable. First, it im-

putes to Congress the intent to require the states to do

the impossible. Congress would no more try to regulate

naturally occurring ozone levels than it would natural

temperature levels. Second, the stated rationale of

technology forcing is entirely absent. The Clean Air Act

requires attainment of the standards and recognizes

nothing short of that goal. Where attainment is not

possible, the statutory sanctions cannot he avoided

through greater control or improved technology.

This removes an important incentive to improve air

quality. Thus the decision below creates a situation

that interferes with the purposes of the Act.

The potential consequences of this situation further

disrupt the statutory scheme. The Act gives the states

the primary discretion to develop their own State Im-

plementation Plans. The EPA may develop its own SIP

only if the state fails to submit a plan which meets the

statutory requirements. Clean Air Act §110(c), 42

U.S.C. §7410(c). The decision below frees the Agency

from these limitations by sanctioning impossible

standards, which no SIP could ever meet. The

unlimited power to set the standards is a lever by which

the EPA can take over the states’ role in implementa-

tion. At the same time, the states are put in a hopeless

>

position. The Act makes no provision for substantial

compliance; the sanctions provided in the Act (such as

the ban on construction of new stationary sources re-

quired by Section 110(a)(2I), 42 U.S.C. §7410

(a(2)(1) are triggered by noncompliance with the

NAAQS as set by the EPA. Conceding the EPA's good

faith in setting the standards, the exclusion of all

evidence on attainability blinds the Agency to a crucial

consideration in its decision-making. There is nothing

in the Clean Air Act to suggest that the EPA may ig-

nore information on a point that would have such an im-

pact on the states.

Thus the decision of the Court of Appeals confuses

relations between the states and the EPA under the Act,

and raises a conflict between impossible standards and

strict compliance requirements. This conflict has been

highlighted in earlier opinions by the District of Colum-

bia Circuit. In Natural Resources Defense Council v.

EPA, 656 F.2d 768, 785 (D.C. Cir. 1981), the Court of

Appeals appeared to base its approval of water quality

monitoring regulations on assurances that they would

be enforced with flexibility and discretion. And in

Alabama Power Co. v. Costle, 636 F.2d 323, 372 (D.C.

Cir. 1979), the Court of Appeals purported to find an ex-

cuse from compliance where ‘good faith effort’’ had

failed.’ These opinions suggest that the D.C. Circuit has

recognized and attempted to mitigate the harshness of

technology forcing requirements, even where mere dif-

ficulty, and not impossibility, was involved. However,

these assurances conflict with the Clean Air Act's clear

2. “Of course even a congressional mandate, such as a

technology-forcing requirement based on a congressional pro-

jection of technology for the future, is subject to a justified ex-

cuse from compliance where good faith effort to comply has

not been fruitful of results. That is far different from the ex-

emption created by EPA on the basis of current technological

infeasibility."’ 636 F.2d at 372

-6-

requirement of full compliance with the pollution

standards. The decision below opens the door to a

literally impossible standard, increasing the burden on

the states, with no reliable prospect that enforcement of

the ozone standard will be relaxed. While enforcement

of the standard is not before the Court, the case at bar

represents the inital departure from the statutory

scheme, which will cause far greater problems in the

future.

The question which remains unanswered is whether

the EPA can set unattainable standards, as the Court of

Appeals decision in the present case states that it can,

and then insist upon strict compliance, as the Clean Air

Act intends that it will. The Court of Appeals has ruled

that the EPA need not even hear evidence that a given

standard may be impossible to attain. This will remove

the technology forcing rationale that is a key to the Act,

give the EPA undue power over the State Implementa-

tion Plans, and expose the states to the statutory sanc-

tions without hope of compliance. The decision below

presents an important question of federal law, one that

is central to the workings of the Clean Air Act. The out-

come of this case will have national impact upon

federal/state relationships, upon the public health, and

upon the economy, as the costs of compliance

mount. This Court should grant certiorari in order to

consider and clarify these questions.

II. The Agency’s Regulations Impose Specific

Control Strategies on the States, Contrary to

the Provisions of the Clean Air Act.

The Court of Appeals has approved EPA regulations

which require, as a specific strategy for the attainment

of the ozone standard, control of hydrocarbon emissions

to levels set in accordance with one of four types of

models. 40 C.F.R. §51.14(c)(7). This approval is at odds

with the role given to the states by the Clean Air Act,

and with the fundamental purpose of the Act.

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Section 110 of the Clean Air Act gives the states

primary responsibility in developing the State Im-

plementation Plan. Clean Air Act, Section 110, 42

U.S.C. §7410. As long as the requirements of §110(a)(2)

are met, the choice of particular control strategies lies

with the states. This Court recognized the relative roles

of the states and the EPA in Train v. Natural Resources

Defense Council, 421 U.S. 60 (1975), wherein it is stated:

The Act gives the Agency no authority to ques-

tion the wisdom of a State’s choices of emission

limitations if they are part of a plan which

satisfies the standards of §110(a)(2), and the

Agency may devise and promulgate a specific

plan of its own only if a State fails to submit an

implementation plan which satisfies those stan-

dards. §110(c). Thus, so long as the ultimate

effect of a State’s choice of emission limitations

is compliance with the national standards for

ambient air, the State is at liberty to adopt

whatever mix of emission limitations it deems

best suited to its particular situation.

421 U.S. at 79.

The effect of this statutory scheme is to give the states

meaningful discretion in designing their plans, and

preclude the Agency from requiring particular means of

control.

This discretion is in accord with the purposes of the

Clean Air Act and the concepts of federalism built into

it. Section 101 of the Clean Air Act reflects the Con-

gressional intent that prevention and control of air

pollution at its source be the primary responsibility of

state and 'ocal governments, and that the appropriate

federal role consists of leadership and financial

assistance. Clean Air Act, Section 101(a){3), (4); 42

U.S.C. §7401(a)(3), (4). Accordingly, the major purposes

-R-

of the Act include provision for national research ef-

forts, and technical and financial assistance to the

states. Clean Air Act, Section 101(b)(2), (3); 42 U.S.C.

§7401(b)(2), (3). The control strategy requirements

associated with the ozone standard reflect a complete

departure from this framework both in terms of the

state/federal relationship and in terms of EPA's obliga-

tion to provide adequate technical assistance.

The regulations at issue require that the control

strategy include an assessment of the amount of

hydrocarbon reduction necessary to attain the ozone

standard. 40 C.F.R. §51.14(c)(7). This requirement,

seemingly related only to the form of information to be

submitted, will in practice limit the discretion of the

states in developing a control strategy. The actual ef-

fect will be to discourage the use of control methods

other than hydrocarbon control, and to limit the means

by which the problem is studied.

The regulations focus on hydrocarbon reductions

alone as the key bit of information by which the Plan

will be evaluated. While the states are technically free

to pursue other means, the emphasis on hydrocarbons in

the regulations will inevitably encourage the states to

adopt this ‘‘approved”’ strategy, and direct efforts away

from possible alternatives. The evidence submitted by

the City of Houston suggests that control of hydrocar-

bons alone will not be an effective means of controlling

ozone levels, and the City has argued that control of ox-

ides of nitrogen (*‘NOx’’) may be a crucial part of an ef-

fective stategy.’ The regulations place a redundant

burden on the State and City to control hydrocarbons in

3. It remains questionable whether attainment of the 0.12 stan-

dard will be possible with any strategy. But it remains impor-

tant to search for the most helpful methods, to bring about the

most improvement possible in air quality. That search is for

the states to direct.

-9-

addition to taking such other means as they might find

helpful. Under the Act it is the State’s prerogative to

choose the mix of control methods. The EPA has in-

truded on that prerogative by requiring a showing of

hydrocarbon reductions.

The second effect of the requirement is to limit the

means by which the problem can be evaluated. The

regulations specify four models, one of which must be

used to estimate the need for hydrocarbon reductions.

40 C.F.R. §51.14(c)(7). This requirement discourages the

states from making an independent study by mandating

the use of limited time and resources on the required

studies. To argue that the states are free to undertake

such additional studies as they may desire again places

a redundant burden on the states, with no prospect of

corresponding benefits. If state discretion under the

Act is to mean anything, the states must be free to

evaluate the problems and policy choices in whatever

way they find appropriate, as a first step to the

autonomous development of the State Implementation

Plan. If these evaluations and plans can be shown to

meet the requirements of the Act, the EPA has no alter-

native but to approve. The regulations in question go

beyond that role, thus exceeding the authority given to

the Agency by Congress and violating the concepts of

federalism built into the Clean Air Act.

The State of Texas further believes that the Court of

Appeals’ approach regarding this issue is at odds with

its own reasoning in the case of Alabama Power v. Cos-

tle, supra. There, the court sustained guideline regula-

tions regarding diffusion modeling requirements for per-

mit applications under the PSD program, qualifying its

decision as follows:

But though we today sustain EPA’s model-

ing regulations, a final observation is in

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order. Of great importance is a reasoned agen-

cy response to substantial questions of fact,

policy or science raised in comments on recom-

mended models or in proposals to employ new

techniques . . .. Modeling, the agency tells us, is

on ‘the frontiers of scientific knowledge,’ but

the lack of scientific certitude about modeling

techniques increases rather than reduces the

need for the agency to critically examine all

substantial questions of fact and science emerg-

ing from the commenting process. EPA's

guideline warns that all proposed deviations

from the endorsed models must be fully sup-

ported, but this language should not be overem-

phasized, for the models presently specified in

the guidelines are concededly flawed.

636 F.2d at 387-388.

In a footnote, the court then stated:

We would associate ourselves with the observa-

tion that ‘decisions which are not arbitrary and

capricious in the light of existing knowledge

may beccme so by the dint of scientific ad-

vances. By its use of estimations and sparce

data, the EPA creates a continuing respon-

sibility to develop, review and apply updated

and more sophisticated information.”’ Texas v.

EPA, 499 F.2d 289, 301 n.16. (5th Cir. 1974).

636 F.2d 388, n.116.

That concern was prompted by technical uncertainty

similar to that now at issue. Texas believes that the

continued focus on hydrocarbon control alone through

the use of four totally vague alternative models falls far

short of EPA’s “responsibility to develop . . . and apply

updated and more sophisticated information,’’ and

renders the present requirement arbitrary and

capricious.

e§$-

CONCLUSION

For the foregoing reasons, the State of Texas believes

that this case presents important issues for review and

clarification by this Court, and that the petition for writ

of certiorari by the City of Houston should be granted.

Respectfully submitted,

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

Attorney General

RICHARD E. GRAY, III

Executive Assistant

Attorney General

TIMOTHY L. BROWN

Assistant Attorney General

Chief, Environmental

Protection Division

P.O. Box 12548

Austin, Texas 78711

(512) 475-4143