# Amicus Brief — American Petroleum Institute v. Gorsuch > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0819%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1982 - **Citation:** 455 U.S. 1034 ## Text 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 gf, err 2 GE pv vc cnccééccsveascacaveuyselareeee 2 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 BPE. oc 0 0 x 0.0e 0 eGuide oa ees heeea else 6 GD 6 oes te cen 0osouaceueseanneeea eee 11 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. ee Natural Resources Defense Council v. EPA, 656 F2d 768 (D.C. Cir.1981)................ Train v. Natural Resources Defense Council, ee eeu sce seceneecees Union Electric Co. v. EPA, 427 U.S. 246 (1976). . STATUTES Clean Air Act ES, gc csccsevcccscsveccs $110, 42 U.S.C. §7410 ................... §172, 42 U.S.C. §7472 ..............0..0... REGULATIONS RE ee eerereerereee LEGISLATIVE MATERIALS S. Rep. No. 91-1196, 91st Cong., lst Sess. ee ead 6 sae week ved cecne PAGE PU ree rer 5,9,10 eee 2,3,4 aaa 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. -7- 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 -10- 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0819%3A3. Public record. Not legal advice.