Petitioners Reply Brief — American Petroleum Institute v. Gorsuch

Office reme Court 1.5.

PILED

No. 81-1019 FEB 26 1962

= — L STEVAS,

Ix THE —

Supreme Court of the United States

OCTOBER TERM, 1981

CiTy oF HousTOoN, TEXAS,

Petitioner,

V.

ANNE M. Goxsuch, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

REPLY MEMORANDUM

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

* Counsel of Record

Of Counsel:

JAMES C. FAULKNER

Assistant City Attorney

City of Houston, Texas

February 26, 1982

WILSON - Epes PrinNTING Co. INC. - 789-0096 - WASHINGTON. D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-1019

City oF Houston, TEXAS,

0 Petitioner,

ANNE M. GorRSUCH, ADMINISTRATOR,

ENVIRONMENTAL PROTECTION AGENCY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

REPLY MEMORANDUM

The petition for a writ of certiorari filed by the City

of Houston presents two questions. On this reply, Houston

will further address only the first question. The first is

whether the Circuit Court of Appeals erred in its deter-

mination that the Clear Air Act permits the Environ-

mental Protection Agency to establish National Ambient

Air Quality Standards for ozone which are impossible to

meet because of natural conditions not within human

control. In their brief in opposition, respondents in effect

enter a plea of confession and avoidance. Respondents do

not deny that the decision below allows the agency to

disregard evidence that it is impossible to comply with

an air quality standard due to natural conditions. In-

2

stead, respondents suggest that Houston’s evidence, which

the agency below refused to consider, does not prove

that Houston will be unable to comply with the ozone

standards.

Respondents hold out the possibility that Houston will

not find itself out of compliance due to natural conditions

on a “routine” basis, and that Houston therefore will

be entitled to invoke an exception from the standards for

ozone. In the first place, only respondents’ ipse dixit sup-

ports the notion that natural ozone conditions will not

force Houston to exceed the standard on a “routine” basis.

Second, the ozone standards do not require “routine”

compliance; they require near-total compliance, permitting

an average exceedance of only one day per year. 40

C. F. R. 5 50.9 (a) (1981). Third, the “exception” which

respondents eite does not permit non- compliance on a less

than “routine” basis. In fact, the “exception” cited does not

permit non-compliance at all. That regulation provides:

For purposes of developing a control strategy, data

derived from measurements of existing ambient levels

of a pollutant may be adjusted to reflect the extent

to which occasiona! natural or accidentai phenomena,

e.g., dust storms, forest fires, industrial accidents,

demonstrably affected such ambient levels during the

measurement period.

40 C. F. R. 5 51.12 (d) (1981) (emphasis added). Once

the control strategy is decided upon, the states are obli-

gated to enforce compliance. 42 U.S.C. § 7413. In short,

even if, for the sake of argument, Houston’s continuing

ozone problems could be analogized to “dust storms, forest

fires [or] industrial accidents,” the regulation to which

respondents refer is completely irrelevant.

Respondents also attempt to belittle Houston’s con-

cerns by referring to Houston’s problem as “parochial.”

Houston is the fifth largest city in the United States, and,

as Houston noted in its petition at 16 n.13, in the view

3

of the National Commission on Air Quality, as many as

32 U.S. counties will also be in violation of the ozone

standards after 1987.

The second question presented by Houston’s petition

is whether respondents improperly imposed a control

strategy upon Houston without adequately considering

environmental conditions prevailing in Houston. Respond-

ents dismiss any responsibility to devise a workable con-

trol strategy for Houston as a “parochial” concern. On

this reply Houston will refer the Court to the amicus

brief of the State of Texas. As Texas notes, by imposing

an unworkable control strategy upon Houston through the

State of Texas, respondents have unlawfully intruded

upon the rights of the states under the Clean Air Act to

develop their own implementation plans designed to take

into account local conditions.

For the reasons stated here and in the amicus brief

of Texas and in the petition for a writ of certiorari, the

petition should be granted.

Respectfully submitted,

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, Texas

February 26, 1982