# Petitioners Reply Brief — Alabama Power Co. v. Sierra Club

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Reply Brief
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 1248

## Text

Tree Court, US.
No. 83-1429 JUN T 1804
_ — CLERK
IN THE
Supreme Court of the United States

OCTOBER TERM, 1983

ALABAMA POWER Co., et al.,
Petitioners,
v.

SIERRA CLUB, et al.,

Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONERS
ALABAMA POWER CO., ET AL.

HENRY V. NICKEL
(Counsel of Record)

F. WILLIAM BROWNELL

MICHELE POLLAK
HUNTON & WILLIAMS
P.O. Box 19280
2000 Pennsylvania Ave., N.W.
Washington, D.C. 20086
202/955-1500

Counsel for Petitioners
Alabama Power Co., et al.

Wis0n - Eres Paiwrine Co.. Inc. - 789-0096 - WasninacTon, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......

ARGUMENT

I. CERTIORARI SHOULD BE GRANTED TO
ESTABLISH THE STANDARD OF REVIEW
APPLICABLE TO AGENCY INTERPRETA-
TIONS OF LAW

II. CERTIORARI IS NECESSARY TO ESTAB-
LISH THAT EPA, IN THE FACE OF CON-
GRESSIONAL SILENCE, MAY ADOPT
RULES THAT AVOID ABSURD RESULTS...

III. THE POTENTIAL SOCIAL AND ECONOMIC
IMPACTS OF THE D.C. CIRCUIT’S DECI-
SION CALL FOR REVIEW BY THIS COURT..

CFT tcieicasesnnsinsntetiiereajeiniaiestierenaiitieitnicidiipiesieahiaaiioes

Page

ii
TABLE OF AUTHORITIES

CASES: Page
Adamo Wrecking Co. v. United States, 486 U.S.

EARS Ra oar een eee 2

Andrus v. Sierra Club, 442 U. s. 847 aa 5

Big Rivers Electric Corp. v. EPA, 523 F.2d 16
(6th Cir. 1975), cert. denied, 425 U.S. 934
(1976) 5
Board of Governors of the Federal Reserve Sys-
tem v. Investment Company Institute, 450 U.S.
EET ISS 2 A PAR ee eT ee 5
Chevron U.S.A. Ine. v. NRDC, cert. granted, 108
S.Ct. 2427 (May 81, 1983) (No. 82-1005 and

ES ESET CETTE TSS. passim
FCC v. WNCN Listeners Guild, 450 U.S. 582
EE ETSY Se Ce er 5
FEC v. National Right to Work Committee, 459
MBB SSE Ea eee ae 5
FEC v. Democratic Senatorial Campaign Com-
mittee, 454 U.S. 27 (1981) om 5

Kennecott Copper Corp. v. Train, 526 F.2d 1149
(9th Cir. 1975), cert. denied, 425 U.S. 985
EEE OSI. SI EE oo ea nC ee 5-6
Morrison-Knudsen Construction Co. v. Director,
OWCP, 108 S.Ct. 2045 (1983) 5
Motor Vehicle Manufacturers Asa’n v. Ruckelshaus,
719 F.2d 1159 (D.C. Cir. 1983) 8
NLRB v. Local Union No. 108, Int'l Ass’n of Iron

Workers, 484 U.S. 885 (1978) = 5
NDRC v. EPA, 529 F.2d 755 (5th Cir. 1976) ...... 6
Sierra Club v. EPA, 719 F.2d 486 (D.C. Cir.

RE a passim
Train v. NRDC, 421 U.S. 60 (1975) 5
Union Electric Co., 427 U.S. 246 (1976) ................ 2,5
Vermont Yankee v. NRDC, 485 U.S. 519 (1978) _.. 6

STATUTES:
The Clean Air Act, 42 U.S.C. § 7401, et seg. (Supp.

V 1981)

§ 110, 42 U.S.C. § 7410 2,9

§ 128, 42 U.S.C. § 7423 passim

iii
TABLE OF AUTHORITIES—Continued

Page
§207(b), 42 U.S.C. §7541(b) (Supp. V
1981) 8
§ 807 (b) (1), 42 U.S.C. § 7607(b) (1) .......... 2
§ 807 (b) (2), 42 U.S.C. § 7607 (b) (2) 2
FEDERAL REGISTER:
45 Fed. Reg. 34802 (1980) ........... ; 8
MISCELLANEOUS:
44 U.S.L.W. 8449 (Feb. 2, 1976) 2.20.0... ccceceeeeeeeee 6
44 U.S.L.W. 3374 (Dec. 28, 1975) 6

[Current Developments] ENv’T REP. (BNA) (May
NE cennciiceponedneciidbenbehtabtiadet Uae sist sedate chesetie cdnibsarnalileaas 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983
No. 83-1429

ALABAMA POWER Co., et al.,
- Petitioners,

SIERRA CLUB, et al.,

Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONERS
ALABAMA POWER CO., ET AL.

ARGUMENT

In this case, Federal Respondent agrees with Peti-
tioners that the lower court erred in substituting its
judgment on complex, technical issues for that of the
Environmental Protection Agency (EPA or Agency).’
Nevertheless, both Federal Respondent and Respondents
Sierra Club, et al. (hereinafter Sierra Club) oppose cer-

1 See Brief of Federal Respondent 8. Indeed, there apparently
was serious discussion within the government as to whether to seek
certiorari in this case, leading the government to request an exten-
sion of time “to file certiorari to consider those recommendations
{of interested government agencies concerning certiorari], to deter-
mine whether to seek certiorari, and, if we decide to do so, to
prepare and print a petition.” Application for An Extension of
Time in Which to File a Petition For a Writ of Certiorari on Be
half of EPA 8 (March i984).

2

tiorari. For the reasons discussed below, respondents’
arguments in opposition to certiorari are without merit.

I. CERTIORARI SHOULD BE GRANTED TO ESTAB-
LISH THE STANDARD OF REVIEW APPLICABLE
TO AGENCY INTERPRETATIONS OF LAW

Under the Clean Air Act,? the D.C. Circuit has exclu-
sive jurisdiction to review EPA actions of national scope
and effect. CAA § 307(b) (1). Such actions include EPA
rules, such as those promulgated by EPA under § 123 of
the Act, which govern the requirements states must in-
clude in their implementation plans mandated by § 110
of the Act. Once the D.C. Circuit has spoken, no court,
save thie Court on review of a D.C. Circuit opinion, can
consider the correctness of the D.C. Circuit’s pronounce-
ment on the validity of such rules.’

In this setting, the standard of review that the D.C.
Circuit will apply must be known in order to enable rule-
making participants to identify the issues that can legiti-
mately be presented on appeal. If judicial review rights
of those affected by EPA’s rules are to be forever fore-
closed after expiration of the 60-day review period under
§ 307(b) of the Act, fundamental fairness dictates that
affected parties know the ground rules that will be ap-
plied in determining the validity of EPA’s actions.

Contrary to Sierra Club’s assertions, Sierra Club Brief
9-10, 12, the ground rules governing judicial review of
agency interpretations of law are not fixed in the D.C.
Circuit and were not properiy applied by the court below.
In each case that comes before the court, the D.C. Cir-

2 The Clean Air Act, 42 U.S.C. § 7401, et seg. (Supp. V 1981)
(hereinafter referred to as “CAA” or “the Act”). (For convenience,
all further citations will be to the Act. Parallel citations to the
U.S. Code are given in the Table of Authorities.)

8 Clean Air Act § 8307(b) (1), (2); see Adamo Wrecking Co. v.
United States, 486 U.S. 275, 289 (1978) (Powell, J., concurring) ;
Union Electric Co. v. EPA, 427 U.S. 246, 270-71 (1976) (Powell, J.,
concurring) .

3

cuit chooses between a “deference” standard and a “de
novo review” standard in judging agency interpreta-
tions of statutory terms. Petition for Certiorari of Ala-
bama Power Co., et al. 16-17 (hereinafter “Pet.”). For
example, while the lower court sustained Sierra Club’s
challenge to EPA’s interpretation of the technical statu-
tory term “good engineering practice’ (GEP) in this
case, in another recent case, Motor Vehicle Manufac-
turers Ass’n v. Ruckelshaus, 719 F.2d 1159 (D.C. Cir.
1983), the lower court rejected an industry challenge and
deferred to EPA’s similar interpretation of GEP under
another provision of the Act.

In the instant case, EPA interpreted GEP to refer
to what engineers had done in the past. While this inter-
pretation of GEP found support in the plain meaning of
the statute and its legislative history, it was nevertheless
rejected by the court.‘ By contrast, in the other recent
decision, the D.C. Circuit rejected a challenge by indus-
trial petitioners to EPA’s interpretation of “good engi-
neering practices” under § 207(b) of the Act. In affirm-
ing EPA’s interpretation in that case, the court found
that it was properly based upon “real world” experience
and “the reasonable capability of personnel and equip-
ment”—i.e., actual engineering practice. According to
the lower court, the ‘““Administrator’s resolution of thorny

technical problems [in defining “GEP”] . . . represents
a reasonable accommodation of conflicting interests en-
trusted to his care. In this respect .. . ‘a reviewing

court must be at its most deferential.’”’* In sum, faced
with consistent Agency interpretations of virtually iden-
tical statutory language, the D.C. Circuit applied differ-

* See Pet. 20-22; Sierra Club v. EPA, 719 F.2d 436, 457 (D.C.
Cir. 1983), Appendix to Petition for Certiorari at 42a-43a (herein-
after “App.”).

5 See Motor Vehicle Manufacturers Ass'n, 719 F.2d at 1167; 45
Fed. Reg. 34802, 34812 (1980).

* Motor Vehicle Manufacturers Ase'n, 719 F.2d at 1167 (citation
omitted).

4

ent standards of review to produce dramatically different
results.

While Federal Respondent, like Petitioners, disagrees
with the lower court’s substitution of its interpretation
of technical terms such as “GEP” and “excessive concen-
trations” for that of EPA,’ Federal Respondent nonethe-
less states that the lower court’s “rejection of EPA’s
interpretation stemmed not from its failure to accord the
proper degree of deference, but from its conclusion that
the legislative history and objectives of Section 123 com-
pelled a different outcome.” Brief of Federal Respondent
8. This statement makes little sense, in light of the gov-
ernment’s assertion that “the court of appeals could have
(and should have) accepted EPA’s definition of key tech-
nical terms in Section 123.” Jd. (emphasis added). If
the lower court’s independent consideration of ambiguous
legislative history and statutory objectives, in the face of
admittedly reasonable Agency conclusions, does not con-
stitute a failure to give deference (as the government
suggests), this Court should take this opportunity to clar-

7 Federal Respondent argues that the lower court’s holdings on
“GEP stack height credit” and ‘‘excessive concentrations” are “ques-
tionable, because the statute itself and other legislative history
lend support to EPA’s reliance on traditional engineering practice.”
Furthermore, Federal Respondent argues, as does Petitioner, that
“Section 123 itself arguably adopts the traditional ‘two and a half
times’ formula as a good estimate of the GEP height, and the House
Report ‘affirms’ that formula.” Brief of Federal Respondent 10
& n.10.

Curiously, Sierra Club suggests that Congress rejected earlier
EPA guidelines in the 1977 Amendments to the Clean Air Act.
See Brief of Sierra Club 3. This statement is seriously misleading.
As the lower court recognized, Congress adopted in 1977 the
essence of EPA's earlier definition of “GEP.” See Sierra Club v.
EPA, 719 F.2d at 441, App. 8a. Congress only rejected that portion
of EPA’s earlier guidance that exempted sources from this GEP
rule if they used “best available control technology” or if continu-
ous controls were infeasible. Jd. These aspects of the earlier
guidance were not relied upon by EPA in the § 123 rulemaking and
are not at issue in this case.

_

oO

ify its prior holdings that appellate courts must accept
“reasonable” interpretations of the Clean Air Act.®

Given the confusion demonstrated by Federal Respond-
ent as to the appropriate standard of judicial review and
given the number of recent D.C. Circuit cases involving
EPA and other agency interpretations of law which have
required review by this Court,’ review of this case is

8 See Union Electric Co., 427 U.S. at 256; Train v. NRDC, 421
U.S. 60, 75 (1975).

*The D.C. Circuit’s shifting standard of review has led this
Court to review and to reverse the D.C. Circuit in numerous cases
over the past few years where the degree of deference to an agency’s
interpretation was in dispute. See Morrison-Knudsen Construction
Co. v. Director, OWCP, 103 S.Ct. 2045 (1983) (OWCP interpreta-
tion of the term “wages” under the Longshoreman and Harbor
Workers’ Compensation Act); FEC v. National Right to Work
Committee, 459 U.S. 197 (1982) (FEC interpretation of the term
“member” of a corporation under the Federal Election Campaign
Act (FECA)); FEC v. Democratic Senatorial Campaign Commit-
tee, 454 U.S. 27 (1981) (FEC interpretation of FECA language
concerning agency relationships) ; FCC v. WNCN Listeners Guild,
450 U.S. 582 (1981) (FCC implementation of the term “public in-
terest” under the Communications Act); Board of Governors of
the Federal Reserve System v. Investment Company Institute, 450
U.S. 46 (1981) (Federal Reserve Board definition of “closely re-
lated to banking” under the Bank Holding Company Act); Andrus
v. Sierra Club, 442 U.S. 347 (1979) (CEQ interpretation of NEPA
language); NLRB v. Local Union No. 103, Int’] Ass’n of Iron
Workers, 434 U.S. 335 (1978) (NLRB interpretation of term “un-
fair labor practice’ under the NLRA). See also Chevron U.S.A.
Ine. v. NRDC, cert. granted, 103 S.Ct. 2427 (May 31, 1983) (No.
82-1005 and consolidated cases) (certiorari granted to review D.C.
Circuit’s rejection of EPA interpretation of the term “source”
under the nonattainment provisions of the Clean Air Act.).

Sierra Club argues that this Court’s denial of petitions for
certiorari in the mid-1970s in cases dealing with the use of “dis-
persion techniques” under the 1970 Clean Air Act should lead it to
deny certiorari here. See Brief of Sierra Club 9. To the contrary,
the courts in those cases deferred to EPA's implementation of the
Clean Air Act’s restrictions on the use of dispersion techniques,
rejecting challenges to EPA's interpretation of the Act. See Big
Rivers Electric Corp. v. EPA, 523 F.2d 16 (6th Cir. 1975), cert.
denied, 425 U.S. 934 (1976); Kennecott Copper Corp. v. Train,

6

necessary to give the lower court and those that must
appear before the D.C. Circuit much needed guidance on
the scope of its review powers. As in Vermont Yankee
v. NRDC, 485 U.S. 519 (1978) (where the Department
of Justice also opposed certiorari), this case provides an
appropriate opportunity for this Court to speak out on
an important question of administrative law. Through
this case, the Court can establish a controlling precedent
that will put an end to the D.C. Circuit’s ad hoc ap-
proach to determining what standard it will use to re-
view agency interpretations of law under the Clean Air
Act and similar statutes.

II. CERTIORARI IS NECESSARY TO ESTABLISH
THAT EPA, IN THE FACE OF CONGRESSIONAL
SILENCE, MAY ADOPT RULES THAT AVOID
ABSURD RESULTS

Federal Respondent, like Petitioners, disagrees with
the lower court’s decision on plume impaction and con-
tends that “EPA should have been allowed to fill the gap
created by Congress.” Brief of Federal Respondent 9.
Sierra Club, by contrast, argues that “[t]he absence of a
[specific] plume impaction exemption in § 123 must...
be interpreted as a deliberate congressional choice to deny
such treatment here.” Brief of Sierra Club 13. The lower
court’s decision therefore presents a major issue of ad-
ministrative law, involving the authority of a federal
agency to interpret its enabling statute in a manner
which avoids absurd results that were clearly never con-

526 F.2d 1149 (9th Cir. 1975), cert. denied, 425 U.S. 9385 (1976) ;
see also 44 U.S.L.W. 3449 (Feb. 2, 1976); 44 U.S.L.W. 3874 (Dec.
23, 1975) ;¢f. NRDC v. EPA, 529 F.2d 755, 760 (5th Cir. 1976)
(court of appeals approved EPA's 2.5 times source height GEP
rule in the face of NRDC’s challenge). Those cases therefore pro-
vide no support for denial of certiorari here since, in this case,
the court of appeals refused to defer to EPA's interpretation of
the Act, requiring a redirection of the § 110 state air programs.
Whenever asked to review a case rejecting EPA's construction of
the Act and requiring such redirection, this Court has granted the
petition. See Pet. 2-8.

7

templated by Congress in enacting the provision.” Cer-
tiorari is needed to establish that, contrary to Sierra
Club’s contention, congressional silence on “plume im-
paction” should not be construed “as a deliberate con-
gressional choice to deny such treatment” in these rules.
Brief of Sierra Club 13; see Pet. 22-26.

III. THE POTENTIAL SOCIAL AND ECONOMIC IM-
PACTS OF THE D.C. CIRCUIT’S DECISION CALL
FOR REVIEW BY THIS COURT

Federal Respondent does not dispute the potentially
serious social and economic impacts that could result from
the D.C. Circuit’s decision. To the contrary, the Solicitor
General’s motion for enlargement of time to consider
EPA’s recommendation on certiorari, see supra note 1,
and recent EPA statements concerning interim imple-
mentation of § 123"' reflect the seriousness of the lower

10 Pet. 22-26. As Appendix A to this brief (hereinafter “Br.
App. A”) shows, over 40 states have very high terrain features
within their borders. To suggest, as the lower court did, that Con-
gress was “indifferent” to “harsh” discrimination against economic
development in rugged terrain areas is to impute a fundamentally
irrational intent on the part of the vast majority in Congress.
Such an interpretation would be inconsistent with the law of this
Court. See Pet. 25 & n.55.

11 EPA explains in an interim policy statement issued in May
1984 that, since the lower court has set aside significant portions
of the final § 123 rules,

[the Agency will try) to avoid actions that may need to be

retracted later... [including action on] specific emission limi-

tations ... and requests to redesignate areas to attainment....
{Current Developments! ENv’T Rep. (BNA) 85 (May 18, 1984).
Moreover, EPA states that actions already taken will have to be
reviewed and may require revision as a result of any remand
proceeding. Id.

The need to conduct numerous, time-consuming individual plant
reviews and to reassess area classifications are the types of serious
impacts that led Federal Respondent to seek certiorari in a recent
case involving the nonattainment provisions of the Clean Air Act.
See Petition for Certiorari of EPA at 23-24, EPA v. NRDC (No.82-
1591) (consolidated with Chevron U.S.A. Inc. v. NRDC (No. 82-
1005) ). Moreover, while that case could have required action in

8

court’s decision to the administration of the Act. Sierra
Club, on the other hand, attempts to discount the poten-
tial impacts of the lower court’s decision. Sierra Club
thus observes that “[t]he few facilities with stacks above
65 meters consist almost exclusively of 148 power plants
and four copper smelters.” Brief of Sierra Club 6-7
(emphasis added).

The “minimal impact” assertions of Sierra Club do not
withstand analysis. The 148 power plants referred to
by Sierra Club constitute 28% of the fossil fuel-fired
electric generation capacity in this nation, serving po-
tentially more than 70 million customers. These plants
are located in 41 states, see Br. App. B; many of them
are located in areas of rugged terrain that will be es-
pecially severely affected by the lower court’s decision,
see Br. App. A; and still others are located in industrial
areas where false stack height assumptions will affect
neighboring sources and industrial growth. See Pet. 27.
Finally, the lower court’s mandate will affect future eco-
nomic development in any area where a new power plant
or other major industrial facility attempts to locate.”

The contention of Sierra Club that this case is of little
practical consequence is also belied by their own state-
ments in the administrative proceedings in this case. At
an EPA public hearing held on December 19, 1983 to
discuss the implications of the lower court’s decision, for
example, a representative of respondent NRDC testified
that “[i]n remanding [the GEP rule], the vourt asked

potentially 31 states, this case could require imple'nentation plan
revisions in at least 41 states. See Appendix B to this brief (here
inafter “Br. App. B”). It is thus understandable that Federal Re
spondent has not disputed the practical significance of this case.

'2 Pet. 27 n.59 & accompanying text. The potentially serious,
adverse impacts of the lower court's decision on other industries
are discussed in the briefs that have been filed before this Court by
representatives of the smelter industry, the coal industry, the paper
industry, and others. It should be noted that Sierra Club refused
to consent to the filing of briefs explaining the potential effects
of the lower court's decision on other industries.

9

EPA to consider whether the use of the formula could
ever be justified.” Transcript of Public Hearing Regard-
ing GEP Stack Height Regulations 34 (emphasis added).
Further, NRDC testified that abandonment of the GEP
formula could require case-by-case examination of ‘429
stacks over the de minimis height.” Id. at 34-35.

Finally, Federal Respondent suggests that, with respect
to the GEP formula, the lower court has “left the EPA
considerable discretion in implementing the court’s man-
date” on remand. Brief of Federal Respondent 12. In
light of the errors in the lower court’s decision, the po-
tentially significant impacts that could flow from these
errors, and the position of NRDC before EPA that the
Agency has no flexibility on remand under the lower
court’s decision, this general statement is not reassuring.
At most, it holds open the promise of further litigation
in the D.C. Circuit, creating further uncertainty for the
states and regulated industries.

In sum, review by this Court is justified by the prac-
tical importance of this case and the need to settle the
law governing this important aspect of the § 110 state-

federal air quality programs.

CONCLUSION

For the reasons discussed in the Petition for Certiorari
and those additional reasons presented above, this Court
should grant certiorari and reverse the decision of the
D.C. Circuit. Further, as described in the accompanying
Motion to Defer Decision on this Petition, another
Clean Air Act case that is currently before this Court
for decision raises standard of review issues of a nature
similar to those presented in this case. See Chevron
U.S.A. Ine. v. NRDC (No. 82-1005 and consolidated
cases). Since resolution of that case may have a direct
bearing on the Court’s dezision on this Petition for Cer-
tiorari, Petitioners respectfully request that action on this

10

petition be withheld pending a decision by this Court in
Chevron U.S.A. Inc. v. NRDC, and the filing of a supple-
mental brief by Petitioners on the significance of that
decision.

Respectfully submitted,

HENRY V. NICKEL
(Counsel of Record)

F. WILLIAM BROWNELL

MICHELE POLLAK
HUNTON & WILLIAMS
P.O. Box 19230
2000 Pennsylvania Ave., N.W.
Washington, D.C. 20036
202/955-1500

Counsel for Petitioners
Alabama Power Co., et al.

June 7, 1984

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