Reply Brief — Alabama Power Co. v. Environmental Defense Fund

/ FILED

9) rs)

No. 89-373 NOV 20

Pr ANIOL, JR.

IN THE =

Supreme Court of the United States

OCTOBER TERM, 1989

ALABAMA POWER COMPANY, et al.,

‘ Petitioners,

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

PETITIONERS’ REPLY BRIEF

GEORGE C. FREEMAN, JR.

HENRY V. NICKEL

(Counsel of Record)

MICHAEL L. TEAGUE

F. WILLIAM BROWNELL

NORMAN W. FICHTHORN

HUNTON & WILLIAMS

P.O. Box 19230

Washington, D.C. 20036

(202) 955-1500

Counsel for Petitioners

November 1989 Alabama Power Company, et al.

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF AUTHORITIES

CASES:

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, 467 U.S. 887 (1984) ........-.

Environmental Defense Fund v. Gorsuch, 718 F.2d

802 (D.C. Cir. 1983) -...................

Environmental Defense Fund v. Thomas, 870 F.2d

892 (2d Cir. 1989) -...............

Natural Resources Defense Council v. Train, 510

Fae See (2c. Gee. 2976) —..................................

Public Utility Commissioner v. Bonneville Power

Administration, 767 F.2d 622 (9th Cir. 1985)....

Sierra Club v. Thomas, 828 F.2d 783 (D.C. Cir.

1987) ._.. ag

Telecommunications Research and Action Center

v. FCC, 750 F.2d 70 (D.C. Cir. 1984) —..0....W....

Vermont Yankee Nuclear Power Corp. v. Nat-

ural Resources Defense Council, 485 U.S. 519

(1978) | Sp PERS Ta Ra Ee

STATUTES:

Ne ae ee ete CORE Sa ete eee

The Administrative Procedure Act,

5 U.S.C. §§ 551, et seq. (1988) .........-.............. *

The Clean Air Act, 42 U.S.C.

eee

§ 304(a) (2), 42 U.S.C. § 7604(a) (2) (1982)..

~~ ee eee ee ee ee ee) ee ae

Page

IN THE

Supreme Court of the United States

_ OCTOBER TERM, 1989

No. 89-373

ALABAMA POWER COMPANY, et al.,

: Petitioners,

ENVIRONMENTAL DEFENSE FUND, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

PETITIONERS’ REPLY BRIEF

A divided panel of the Second Circuit held that the

Environmental Protection Agency (“EPA”) has a non-

discretionary duty to conduct and complete “rulemaking”

on whether or not to revise national ambient air quality

standards for sulfur oxides under the Clean Air Act,'

and that a district court has jurisdiction to enforce that

purported duty under § 304(a) (2) of the Act.? The court

made this holding notwithstanding the absence of any-

thing in the Administrative Procedure Act* or the Clean

1 42 U.S.C. §§ 7401, et seq. (1982) (hereinafter “Act”).

2 Id. § 7604(a) (2); see Environmental Defense Fund v. Thomas,

870 F.2d 892, 894, 900 (2d Cir. 1989) (hereinafter “EDF v.

Thomas”), App. la, 4a, 17a.

85 U.S.C. §§ 551, et seg. (1988) (hereinafter “APA”).

2

Air Act requiring EPA—or any agency—to conduct

“rulemaking” where it decides that rules need not be

made. Moreover, in the absence of any statutory require-

ment that the agency conduct rulemaking, the court below

failed to defer to the agency’s construction of the Act

and instead “simply impose{d] its own construction on

the statute.” *

In his brief in opposition, the Administrator agrees

with petitioners that “the court of appeals’ failure to give

appropriate deference and its erroneous imposition of a

formal decision requirement . . . misapplies the legal

standards” announced by this Court in Chevron U.S.A.,

Inc. v. Natural Resources Defense Council® and Vermont

Yankee Nuclear Power Corp. v. Natural Resources De-

fense Council. The Administrator asserts, however, that

“Toj]n the precise issue” decided below, “there is no con-

flict of decisions.” *

The brief for respondents Environmental Defense

Fund, et al. (hereinafter referred to collectively as

“EDF”), however, makes plain the importance of the

issues raised by the Second Circuit’s decision and the

conflict posed by that decision with basic administrative

law principles applied by this Court and the other circuit

courts of appeais. EDF argues that “a final decision not

4 Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467

U.S. 837, 843 (1984),

5 Supra note 4.

6485 U.S. 519 (1978); see Brief for the Administrator of the

Environmental Protection Agency, et al. in Opposition, Nov. 1989,

at 7 (hereinafter “EPA Brief”). Moreover, the Administrator

agrees with petitioners that the Second Circuit’s decision is “incon-

sistent” with decisions of other circuits because it holds that the

plaintiffs in the present case were not required to seek an agency

decision on their claims before they sought judicial intervention.

EPA Brief at 5.

TEPA Brief at 7.

a

8

to revise a... [national ambient air quality standard]

falls within the definition of a ‘rule’ under the Admin-

istrative Procedure Act and can only be determined by

way of rulemaking procedures.”* EDF argues that

“lrjetention of the existing standards . .. is a rule”

under the APA.® That is, the Second Circuit’s decision, as

construed by EDF, stands for the proposition that an

agency determination to retain a rule must be subjected

to the same procedures as an agency determination to

make a rule. It is difficult to imagine a clearer contradic-

tion of fundamental administrative law principles, the

APA, and this Court’s decision in Vermont Yankee.”

8 Brief for Respondents in Opposition, Nov. 6, 1989, at 10 n.7

(hereinafter “EDF Brief”) (emphasis added). EDF cites Envi-

ronmental Defense Fund v. Gorsuch, 713 F.2d 802, 815 (D.C. Cir.

1983), cited in EDF Brief at 10 n.7. That case, however, required

rulemaking where the agency sought to amend an existing rule.

See 713 F.2d at 814-17, 818 (holding that the agency’s suspension

of the effective date of an existing rule was an attempt by the

agency to promulgate a new rule). Here, in contrast, the agency

has proposed not to amend existing rules, i.e., to keep the rules

exactly as they are.

® EDF Brief at 10 n.7.

10 EDF asserts that this issue was not before the Second Circuit

and is not before this Court, on the grounds that when the Second

Circuit issued its decision, EPA already had published a proposed

decision not to revise the standards. Jd. In addition, the Adminis-

trator suggests that “[i]t would be premature to conclude that”

review by this Court is warranted, since “EPA’s current practice

.. . is to initiate a rulemaking and solicit public comment on pro-

posed decisions not to revise national ambient air quality stand-

ards.” EPA Brief at 6.

EDF and the Administrator misconstrue the nature of the ques-

tion decided below and presented to this Court: Does a court have

jurisdiction to compel an agency to conduct and complete a rulemak-

ing—regardless of whether the agency has already published a pro-

posed decision—where the agency intends to maintain the status

quo and not to make or change a rule. Contrary to EDF’s assertion,

that is the very question decided below and presented here.

Contrary to the Administrator’s suggestion, there is no reason to

4

Further, EDF and the Administrator suggest that the

decision below does not authorize district courts to review

evolving scientific information and, on the basis of that

review, to compel rulemaking." The court below held,

however, that scientific documents prepared by EPA

“triggered a [nondiscretionary] duty on the part of EPA

to address and decide whether and what kind of revision

[to standards] is necessary.” *

In addition, EDF is wrong in arguing that the decision

below creates no conflict with the rule of preclusive court

of appeals jurisdiction adopted by the District of Colum-

bia Circuit in Telecommunications Research and Action

Center v. FCC (“TRAC”) and by the Ninth Circuit in

an opinion by then-Judge Kennedy in Public Utility Com-

missioner v. Bonneville Power Administration.* EDF as-

serts that this rule is inapplicable here because “the

Clean Air Act provides for a bifurcated system of judi-

cial review.” |

EDF ignores the D.C. Circuit’s decision in Sierra Club

v. Thomas, which held that the TRAC rule applies to

believe that that question would be more sharply drawn in a case

where, as was the case when this proceeding was before the district

court, the agency had not voluntarily published a proposed decision

not to revise rules. A court has no more authority to compel comple-

tion of an agency proceeding already begun than it does to compel

initiation of such a proceeding.

11 See EDF Brief at 10-11; EPA Brief at 6.

122 EDF v. Thomas, 870 F.2d at 900, App. 17a (emphasis added) ;

see also id. at 896, App. 9a (duty exists “[i]n view of” EPA’s

scientific documents) ; id. at 901 n.2, App. 2la (majority’s “in view

of” statement creates “the necessary implication that [district] if

courts ... will review, to some undetermined extent, the substance

of discretionary decisions by the Administrator”) (Mahoney, J.,

dissenting) (emphasis added).

13 750 F.2d 70, 75 (D.C. Cir. 1984).

14 767 F.2d 622, 626 (9th Cir. 1985).

15 EDF Brief at 13.

cases under the Clean Air Act,’* and that § 304(a) (2)

jurisdiction exists only where the Act “ ‘categorically’ ”

mandates that the Administrator take a specified action

by a date-certain deadline.'* Because the Act does not

mandate, categorically or otherwise, that EPA conduct

and complete rulemaking on a decision to keep an air

quality standard as it is, the Second Circuit’s decision

conflicts with the principles applied by the D.C. Circuit

in Sierra Club and TRAC and the Ninth Circuit in Pub-

lie Utility Commissioner.

As the above discussion shows, the Court should review

the Second Circuit’s decision because it conflicts with the

principles of this Court’s decisions and those of other

circuits and with fundamenta. principles of administra-

tive law. Moreover, the Court should review the decision

because it establishes a precedent that will harm peti-

tioners’ interests in future litigation and may result in

EPA’s acquiescence in the Second Circuit’s erroneous

view of the law.

In addition, petitioners urge review because the deci-

sion below, if allowed to stand, wil! seriously jeopardize

the interests of petitioners that are at stake in the present

case. A decision by EPA to revise the air quality stand-

ards could result in much more stringent—and costly—

emission limitations for electric utility power plants op-

erated by petitioners and their member companies, as

well as for facilities in many other industries. Such a

decision would, in turn, be more likely if petitioners were

denied a full opportunity to present information and

arguments to EPA demonstrating why EPA should not

16 See Sierra Club v. Thomas, 828 F.2d 783, 787-92 (D.C. Cir.

1987).

17 Jd. at 791 (quoting Natural Resources Defense Council v.

Train, 510 F.2d 692, 712 (D.C. Cir. 1975)).

6

revise the standards.'* Because the Second Circuit’s de-

cision allows the district court to force EPA to end its

proceeding prematurely, that decision may deny peti-

tioners a full opportunity to convince EPA that revisions

to the standards continue to be unwarranted.

Equally important, Congress is now considering amend-

ments to the Clean Air Act that, if enacted, could greatly

change the nature of the program for regulation of sulfur

oxides and other substances under the Act.’ A district

court order compelling EPA to act on sulfur oxides while

Congress is considering issues related to sulfur oxides

regulation could result in precipitous administrative ac-

tion adverse to petiticners’ interests.

Respectfully submitted,

GEORGE C, FREEMAN, JR.

HENRY V. NICKEL

(Counsel of Record)

MICHAEL L. TEAGUE

F. WILLIAM BROWNELL

NORMAN W. FICHTHORN

HUNTON & WILLIAMS

P.O. Box 19230

Washington, D.C. 20036

(202) 955-1500

Counsel for Petitioners

November 1989 Alabama Power Company, et al.

18 EPA has proposed not to revise the standards and has solicited

public comments on that proposal, but has come to no conclusion on

whether to make that proposal final.

19 See EPA Brief at 7 n.2.