Petitioners Reply Brief — Chevron USA Inc. v. Natural Resources Defense Council, Inc.

FILED |

MAY 4 1983

TIEMANOeH CL STEVAS,

CLERK

In the Supreme Court of the

United States

Ocroszr Tzam 1982

No. 82-1005

Cueveow U.S.A. Inc., a corporation,

| Petitioner,

i etiéiones .

Narvunat Resources Derense Counon., Inc.,

Crrizens For a Berren Exvimonment, Inc.,

Nogsruwestzrx Onto Lune Association, Inc.,

Anne M. Gonsvcn, Apmunsrrator, U.S. ExvimonmenraL

Protection Acency, et al.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITIONER'S REPLY BRIEF

TABLE OF AUTHORITIES CITED

Case

Alabama Power Co. v. Costle,

Se ween Mees. Ss &- 6S . 6> 0 6 16 ese oe

Statute

Clean Air Act:

Section lll(a) (3) (42 U.S.C.

§ 7411(a) (3)) fe ER AO” i Be SS Ne Poe a 4

ee eS

No. 82-1005

In the Supreme Court of the

United States

Ocroser Term 1982

Cuevnon U.S.A. Inc., a corporation,

Petitioner,

vs.

Natunat Resources Derense Covnon, Inc.,

Crrizens For a Better Exvimonment, Ixc.,

Norrawestern Oxn1o Lune Association, Inc.,

Anne M. Gorsuca, Apministrator, U.S. ExvimonmMentTaL

Protection Acency, et al.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

~ for the District of Columbia Circuit

PETITIONER'S REPLY BRIEF

Respondents avoid the crucial question

whether the holding of the Court of Appeals --

that EPA has no authority to use the bubble

concept in nonattainment areas -- conflicts

with the prior decisiéns of that court.

Respondents’ only efforts to explain away

that conflict are based upon the erroneous

assertion that “difference between program

purposes” (R.Br., pp. 7-8, n. 14) accounts

for the conflicting results. But the

point is that the purpose of the non-

attainment provisions involved here is

the same as that of the provisions in

Alabama Power, where the Court of Appeals

approved EPA's use of the bubble concept

(Pet., p. 8).

This Court should resolve this con-

flict. The suggestion by respondents that

this is an ordinary “intra-circuit conflict"

which should be left to the giveth is with-

out merit: Respondents admit that review of

clean air regulations is of national impor-

tance (R.Br., p. 6, n. 11). The fact that

Congress has assigned these cases to the

D.C. Circuit for initial consideration

certainly does not immunize that Circuit's

decisions from review by this Court.

Review by this Court is essential to

prevent further havoc in the national

enforcement of the Clean Air Act.

There is likewise no basis for the

suggestion that review is unnecessary be-

cause of the speculative possibility of

future Congressional action. Respondents

ignore the dangerous precedents which

would result if erroneous Court of Appeals'

opinions were always left unreviewed be-

cause of the possibility of Congressional

"review" of those opinions. — Moreover, the

fact is that Congress has not acted even

though it has been considering revision of

the Clean Air Act for more than two years.

Contrary to respondents’ assertions

(R.Br., pp. 24-26), review by this Court

will not adversely affect public health.

The existing EPA regulations allow a

state to issue construction permits only

if the state has demonstrated to EPA that

its overall air quality plan for the state

assures reasonable further progress toward

meeting air quality standards (Pet., pp. 3,

13-14). Thus, the bubble concept may be

used only as part of a state program which

meets the goals and standards of the Clean

Air Act. Moreover, under the EPA regula-

tions in question, a project would be

allowed to proceed only if any net,

cumulative emission increase from a plant

is below the maximum levels which

Congress has found to be acceptable

(Pet., pp. eas.

On the merits, respondents totally

ignore the fact that the EPA regula-

tions in question simply define “sta-

tionary source" using the precise

definition in section 1ll(a) (3) of the

Clean Air Act (Pet., p. 11). Respon-

dents do not, and cannot, defend the

holding of the Court of Appeals that EPA

committed a per se violation of the Act

by conforming the EPA definition to that

in the statute.

1 ;

Respondents misstate the EPA regula-

tions in question (R.Br., pp. 4-5, n. 9).

The regulations allow modifications only

if the net cumulative emission increase

is below de minimus levels (40 C.F.R.,

Part 51, Appx. S, @ II.A.6., 40 C.F.R. °

§ 52.24(f)(6)). The suggestion that a

refinery owner could build new storage

tanks increasing hydrocarbon pollution

by 40 tons each year is simply incorrect;

the regulations would only al a total

40 ton increase for the entire refinery

over a five-year period.

3

It is also significant that respon-

dents virtually ignore the construction

moratorium in nonattainment areas; unless

the decision below is reviewed, that

moratorium will ban all plant expansions

or modifications in which a proposed

piece of equipment would increase emis+

sions, even if the expansions or

modifications would reduce emissions from

the plant as a whole, employ state-of-the-

art ‘emission control techniques, and

demonstrate existing facility compliance

(R.Be., Pp. 13).

Respondents’ need to engage in an

extensive discussion of legislative his-

tory is a virtual concession that the

Court of Appeals opinion, which attempted

to establish a "bright line test" is

erroneous and confirms that plenary review

by this Court is warranted.

Respectfully submitted,

MICHAEL H. SALINSKY

Counsel of Record

KEVIN M. FONG

Counsel for Petitioner

PILLSBURY, MADISON & SUTRO

of Counsel

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