# Petitioners Reply Brief — Chevron USA Inc. v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0106%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1984 - **Citation:** 467 U.S. 837 ## Text 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 a 4 ) & | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0106%3A04. Public record. Not legal advice.