Supplemental Brief — Manchester Environmental Coalition v. Environmental Protection Agency

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3n The NOV 18 962

Supreme Court Of The United) States. cceves.

No. 82-247 _

OCTOBER TERM, 1982

MANCHESTER ENVIRONMENTAL COALITION

and

MICHAEL DWORKIN

Petitioners

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL

Respondents

SUPPLEMENTAL BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ADDRESSING EVENTS OCCURRING SINCE THE

DATE OF THE FILING OF THE PETITION

SUPPLEMENTAL BRIEF OF PETITIONERS IN

SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

WITH ATTACHED APPENDIX

ANTHONY F. PAGANO

Beck & Pagano

447 Center Street

Manchester, CT 06040

(203) 646-5606

Counsel for Petitioners

QUESTION PRESENTED FOR REVIEW

Whether the denial, without opinion, of costs and at-

torneys’ fees to a successful petitioner, suing for violations of

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

§7607(f) of the Act.

PARTIES

The Petitioners are Manchester Environmental! Coalition

and Michael Dworkin (hereinafter, ‘‘Petitioners”). The

Respondents are the United States Environmental Protection

Agency, Connecticut Fund for the Environment, Inc., John

Walton, The State of Connecticut, National Retail Merchants

Association, National Realty Committee and International

Council of Shopping Centers (hereinafter, ‘‘Respondents’’).

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW i

LIST OF PARTIES i

TABLE OF AUTHORITIES... ii

UNITED STATES STATUTE RELEVANT TO

THIS BRIEF.. 1

STATEMENT OF PURPOSE FOR SUPPLEMENTAL

BRIEF AND ARGUMENT....ccsscsssssssssscsssssssssssssesessesees 1

ES 3

APPENDIX 1A

TABLE OF AUTHORITIES

Page

Statutes:

42 U.S.C. §7607(f) i,1,2

Cases:

Anne M. Gorsuch, Administrator v. Sierra Club, Et Al,

Supreme Court Docket No. 82-242 1,2,3

Save the Valley, Inc. v. EPA, Supreme Court Docket

No. 82-637 2

RELEVANT STATUTE

42 U.S.C. §7607(f):

COSTS. > any judicial proceeding under this Section, the

Court may award costs of the litigation (including reasonable

attorney and expert witness fees) whenever it determines

that such an award is appropriate.

STATEMENT OF PURPOSE FOR THE

SUPPLEMENTAL BRIEF AND ARGUMENT

. On August 11, 1982, the undersigned, pursuant to

- Supreme Court Rule 28.2, filed a Petition for Certiorari in the

instant case. The Petition seeks review by this Court of an

Order of the Court of Appeals for the Second Circuit denying

Petitioners’ Request for Attorneys’ Fees and Costs ander 42

U.S.C. §7607(f). Since Petitioners were partially successful in

the case below and furthered the purpose of the Clean Air

Act,! the denial of such fees and costs was contrary to all

established precedent as of the date of filing.

On the same day that the undersigned filed this Petition

for Certiorari, the Solicitor General, on behalf of the

Administrator of the Environmental Protection Agency, filed

a Petition for Certiorari raising a similar issue under 42

U.S.C. §7607(f), in the case of Anne M. Gorsuch, Administrator,

IThe government's untimely brief (see Supreme Court Rule 22.1) asserts

that no fees are due petitioners in this case since the purposes of the

However, even assuming arguendo, the validity of this legal proposi-

tion, it draws no strength from this case as Petitioners, in fact, raised

the new source construction moratorium both in their briefs and in oral

argument. Appendix pages 1A-3A. The government's position, if

adopted by this Court, would seriously undermine the remedial purpose

of the Clean Air Act while strengthening Petitioner's claim that review

by this Court of this case is necessary.

Environmental Protection Agency v. Sierra Club and

Environmental Defense Fund, Supreme Court Docket No.

82-242 (hereinafter, “Gorsuch, Administrator v. Sierra Club, Et

Al). On October 18, 1982, the Court granted the Petition for

Certiorari in said case.

In Gorsuch, Administrator v. Sierra Club, Et Al, No. 82-242,

the Petitioners were awarded over $90,000.00 in attorneys’

fees and costs by the United States Court of Appeals for the

District of Columbia Circuit although they did not prevail on

a single issue raised in the case. See Petition for a Writ of

Certiorari in the case of Gorsuch, Administrator v. Sierra Club,

Et Al, No. 82-242, at p. 6. Here, although partially prevailing

below, the Petitioners were denied any fees or costs pursuant

to the same Section of the Clean Air Act.

Thus, this case presents the reverse side of the issue

raised by the government in Gorsuch, Administrator v.

Sierra Club, Et Al, No. 82-242, since the Petitioners were

denied attorneys’ fees and costs, without a written opinion,

in a Clean Air Act case in which Petitioners herein partially

prevailed. The granting of certiorari in this case, with in

tandem arguments to Gorsuch, Administrator v. Sierra

Club, Et Al, No. 82-242, will provide the Court with an

opportunity to resolve conflicting approaches taken by the

Federal Courts in interpreting and applying 42 U.S.C.

§7607(f) in a variety of factual situations, thereby

providing guidance to both the Courts and the Bar.?

2The same issue has been raised in a Petition for Certiorari filed in Save

the Valley, Inc. v. Environmental Protection Agency, Supreme Court

Docket No. 82-637.

CONCLUSION

Petitioners respectfully request this Court to grant

certiorari and schedule argument in tandem to Gorsuch,

Administrator v. Sierra Club, Et Al, No. 82-242, so as to

allow for a full determination of the various issues raised in

both petitions.

Respectfully submitted,

Oy

ANTHONY F. PAGANO

Beck & Pagano

447 Center Street

Manchester, CT 06040

(203) 646-5606

Counsel for Petitioners

SECTION II OF REPLY BRIEF OF THE

PETITIONERS MANCHESTER ENVIRONMENTAL

COALITION AND MICHAEL DWORKIN

FILED IN THE CASE BELOW

II. ASIP APPROVAL CONDITIONED UPON COM-

PLIANCE SUBSEQUENT TO THE EPA AP-

PROVAL DATE VIOLATES THE CLEAN AIR

ACT.

It is clear from reviewing respondents briefs that even

they are confused about the effect and validity of the

Connecticut conditional approval. For while EPA believes six

elements of the Connecticut SIP were conditionally approved

(EPA brief, footnote 12, p. 17), Connecticut states that only

five portions of the SIP were conditionally approved. (Con-

necticut Brief at p. 17).

However, all the parties to this case are in agreement

with one important fact: that the approved Connecticut SIP

has deficiencies. The respondents argue that they are only

minor deficiencies; while the petitioners and the Act itself,

says nothing of minor or major deficiencies. (emphasis

added). As the petitioner has argued in its brief, the Act

requires full compliance not partial compliance. Manchester

Environmental Coalition v. EPA, 612 F2d 56 (2d Cir. 1979).

In this regard, the United States Supreme Court held that

the EPA cannot approve a SIP revision if the revision would

prevent the SIP from meeting the requirements of 42 U.S.C.

Sec. 7410(a)(2) (hereinafter Sec. 110(a)(2)). Train v. NRDC,

421 U.S. 60 at 71, 72. A plan that does not contain all of the

criteria set forth in Sec. 110(a)(2) and in the case of

Connecticut, the criteria in Part D of the act, is a plan that

will be unable to control all sources of air pollution. Such a

plan would curtail a state's ability to attain and maintain the

National Ambient Air Quality Standards, (hereinafter the

NAAQS). See Union Electric Co. v. EPA, 427 U.S. 246,

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249-250, Train v. NRDC, supra at 78. Although attainment of

the NAAQS may be delayed until a future date noted in the

Act (in this case not later than December 31, 1983 or

December 31, 1987, 42 U.S.C. Sec. 7502(a)(2)) the SIP must

still meet the requirements of Section 110(a)(2) and Part D at

the present time, not only in the future. Train v. NRDC, supra

at 68.

By conditionally approving the Connecticut SIP, EPA has

given a partially completed SIP all the benefits of a SIP which

fully complied with Sections 110 and 172 of the Act. Since

Section 110(a)(2)(I) calls for construction restrictions in states

without an approved SIP on July 1, 1979; there is little doubt

that Congress meant to insure full compliance with the

important requirements of Sections 110 and 172. In

Connecticut’s case the conditional approval is extremely

obnoxious because the elements that were conditionally

approved would assist in the reduction of ozone air pollution,

the cause of Connecticut's non-attainment status. Although

the plan for these pollution controls should have existed on or

before July 1, 1979 so that implementation could take place

after July 1, 1979; the conditional approval effectively voided

this possibility.

Even McManus v. CAB, 286 F2d 414 (CA2 1961) does not

support the respondents thesis as the conditionally approved

CAB order in that case was only valid after amendments

were made to it. Moreover, neither McManus v. CAB, Id, or

National Air Carrier Association v. CAB, 436 F2d 185 (CA.DC.

1970) have any application here as the conditional approvals

given by the CAB were not at variance with a federal statute's

requirements or an unlawful extension of a statute's

mandates. Likewise, CAB conditional approval in National

Air Carrier Association v. CAB, Id, merely approved with

subsequent hearings to determine whether such approved

order was adverse to the public interest. No regulations,

studies or other requirements that would supply information

necessary to comply with a federal statute needed to be

completed. The present case is far different in that

environmental inventories must be taken and regulations

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must either be adopted or modified. Petitioner MEC’s Brief

Section IB. Furthermore, the CAB conditional approval dealt

only with economic impacts and not the health of our

country’s citizens. When one considers that if Connecticut

does not have a plan to attain the NAAQS two years after

mandated by the Act, one could only speculate as to whether

actual implementation to attain the NAAQS will ever take

place?

Likewise, Friends of the Earth v. EPA, 499 F2d 1118

(CA 2, 1974), does not excuse Connecticut’s full compliance

with the Act. In this case, a plan to reduce parking in

Manhattan business districts was approved although there

was not specific mention of which off-street facilities would

be eliminated. Since the Court found that the names of the

off-street facilities which would be eliminated was essen-

tially procedural; the plan was approved. In the present

case, some of the SIP deficiencies call for the obtaining of

information upon which to base regulations. At any time

prior to the promulgation of regulations, disputes could

arise as to the effectiveness of these future regulations.

Accordingly, this case lends no support to EPA's action as

it relates to the Connecticut SIP.

Finally, the conditional approval is really a mechanism

that allows unhealthy air to stay unhealthy during a two

year period that should have been utilized to actuaily

t what should have been planned two years ago.

To have the EPA urging this Court to allow for a violation

of the strict time requirements of the Act is most

unfortunate. For if the agency charged with the duty of

protecting our health from the effects of air pollution

shirks its responsibility, then only this Court can remedy

the defect.

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