Opposition Brief — Reilly v. Delaney

2 9 AD

No. 90-456 semind F. BF aes

In The

Supreme Court of the United States

October Term, 1990

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WILLIAM K. REILLY, Administrator of

the Environmental Protection Agency, et al.,

Petitioners,

ROBERTA DELANEY, et al.,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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RESPONDENT’S BRIEF IN OPPOSITION

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Davip S. BARON

Arizona Center for Law

in the Public Interest

3208 E. Fort -Lowell

Suite 106

Tucson, Arizona 85716

(602) 327-9547

Counsel for Respondents :

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COCKLE LAW BRIEF PRINTING CO. 5-6964

OR CALL COLLECT ¥ 342-2831

QUESTIONS PRESENTED

1. Whether this Court should review the propriety

of relief ordered by the Court of Appeals where peti-

tioners did not challenge that court’s authority to order

such relief until a petition for rehearing, even though the

relief had been specifically requested in the opening brief

below.

2. Whether the Court of Appeals, in a case over

which it concededly had jurisdiction under the Clean Air

Act, properly directed the Administrator of the Environ-

mental Protection Agency on remand to prepare a federal

clean air plan for Arizona, where the Act expressly

required the Administrator to prepare such a plan as a

consequence of the court’s decision on the merits.

ii

TABLE OF CONTENTS

Page

Counterstatement of the Cate. .... 0s c05 Si desedeen 2

Reasons for Denying the Writ ..... eheteasandakies i)

CONN os cds sak enna sevens vacate Peeleresaaenes 10

TABLE OF AUTHORITIES

Cases:

Abramowitz v. U.S. EPA, 832 F.2d 1071 (9th Cir.

| mmr rer re rere eo ery 8

Arizona v. Thomas, 829 F.2d 834 (9th Cir. 1987) ....... 9

City of Seabrook v. EPA, 659 F.2d 1349 (5th Cir.

BOWE) «5 xs cade vensaunsdscnnawe pane ora ee 3

City of Seabrook v. Costle, 659 F.2d 1371 (Sth Cir.

| | nr rrrnermrreritase n 5p) 2) Pei Gh? eee 7

Connecticut Fund for the Environment v. EPA, 672

we Be Bee | ee reory ote Try eee 8

Consolo v. Federal Maritime Commission, 383 U.S.

GOT GRIGG so i:cc sv'nss cceeucb eee es Meee eens oss 8

District of Columbia v. Train, 521 F.2d 971 (D.C. Cir.

SORE: vc cbais cna 0d ane Rede eHR NOR Ae Rane es 5

EECA. wo FLRA, G76 USD. 19 Cin s cincansanascesss 6

Environmental Defense Fund v. EPA, 852 F.2d 1316

CAA... CAR FS 6 cannnd neues ene taepebeeeeen ces <s 8

Ford Motor Co. v. N.L.R.B., 305 U.S. 364 (1939) ....... 9

General Motors Corp. v. United States, 110 S. Ct.

SA CA vnc cdc cnucaceviasgaaetaraserisees 5, 6, 7

Hoover v. Ronwin, 466 U.S. 558 (1984) ..............-- 6

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TABLE OF AUTHORITIES - Continued

Page

Indiana & Michigan Electric Co. v. EPA, 733 F.2d 489

Siar hh Wea ann cath ene eess ak denne 8

McCarthy v. Thomas, 17 Envtl. L. Rep. (Envtl. L.

ee AS) ee 3, 4

McCarthy v. Thomas, 18 Envtl. L. Rep. (Envtl. L.

i Oe Ree WONOE, COED Sos ce cece secscasnccence 4

Natural Resources Defense Council v. EPA, 478 F.2d

ee cack Lad cae ash evnnaenes¥eeeass a

Natural Resources Defense Council v. Environmental

Protection Agency, 475 F.2d 968 (D.C. Cir. 1973)..... 7

Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654

ii scien sehee ds ess dhaed vnc 8

Pennsylvania v. EPA, 500 F.2d 246 (3rd Cir. 1974) ..... 5

Sierra Club v. Indiana-Kentucky Electric Corp, 716

EE ao cw vb Wao 6 664 Rep de see cnes 3

Sierra Club v. EPA, 719 F.2d 436 (D.C. Cir. 1983)...... 8

STATUTES:

Administrative Procedure Act, 5 U.S.C. §706......... 9

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

Re eee ce

NE Ps POD 5 5c kn snc necsvusecsesens 3

I wk cheek ence secansass 4, 7, 8, 10

Re EME oss ssa escccecnvnncnss 4, 7, 8, 10

Clean Air Act Amendments of 1977, Pub. L. No.

ee ead eK Add Mee eee a kesesed 3

iv

TABLE OF AUTHORITIES —- Continued

Page

MISCELLANEOUS:

ee Be rr rere rere 5

SS POG Mee, Siaee GA BG, TPFGP oon ee ccc ce sssceess 2

136 Cong. Rec. 516953 (daily ed. Oct. 27, 1990).... 10

1 W.H. Rodgers, Jr., Environmental Law:

Fae Ee ee See NO ake cv eecsancevevcensocaee 8

No. 90-456

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In The

Supreme Court of the United States

October Term, 1990

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WILLIAM K. REILLY, Administrator of

the Environmental Protection Agency, et al.,

Petitioners,

ROBERTA DELANEY, et al.,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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RESPONDENT’S BRIEF IN OPPOSITION

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Respondents Roberta Delaney, Gayle Hartmann,

David Horley, Alma Williams, Maureen Mageau-

Decindis, and Brian McCarthy hereby oppose the petition

for a Writ of Certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit in

this case.

e

COUNTERSTATEMENT OF THE CASE

For purposes of this brief, respondents incorporate

the statement of facts and historical background as set

forth by the court of appeals. Petition for Writ of Cer-

tiorari (Petition) at 2a-3a. The following statement clari-

fies several key points.

1. Respondents’ opening brief in the court of

appeals specifically requested, among other things, that

the court direct the Administrator of the Environmental

Protection Agency (EPA) to disapprove the Arizona state

implementation plan (SIP) and promulgate a federal

implementation plan (FIP) within six months. Brief for

Petitioners at 43, Delaney v. EPA, 898 F.2d 687 (9th Cir.

1990). EPA’s responding brief did not specifically oppose

this request for relief or in any way suggest that the court

of appeals lacked authority to enter such an order. It was

not until the Agency filed its. petition for rehearing, after

the court had issued its decision and order, that EPA

questioned the propriety of ordering FIP promulgation

on remand.

2. EPA did not request a stay of the court of

appeals’ mandate. Instead, the Agency indicated its

intention to comply with the six month deadline for

preparing a federal plan. Petition at 12. EPA issued its

proposed FIP on September 20, 1990, and published the

proposal in the Federal Register on October 10, 1990. 55

Fed. Reg. 41204 (Oct. 10, 1990). On October 29, 1990, EPA

filed a motion in the Ninth Circuit requesting a two

month extension of the November 26, 1990 deadline for

FIP promulgation. That motion is still pending as of this

writing.

3. The requirement that EPA promptly prepare a FIP

was not an invention of the court of appeals. Section

110(c) of the Clean Air Act (the Act) expressly requires

federal plan preparation upon EPA disapproval of a state

implementation plan. Courts have uniformly held that

the plan preparation duty arises automatically upon a

finding of state plan inadequacy. See e.g., Sierra Club v.

Indiana-Kentucky Electric Corp., 716 F.2d 1145, 1153-54 (7th

Cir. 1983); City of Seabrook v. EPA, 659 F.2d 1349, 1352-53

(Sth Cir. 1981); McCarthy v. Thomas, 17 Envtl. L. Rep.

(Envtl. L. Inst.) 21214, 21217 (D. Ariz. 1987). Moreover,

prior to the Ninth Circuit decision, EPA’s duty to promul-

gate a FIP for Arizona had been firmly and finally estab-

lished in the district court proceeding. Thus, in ordering

EPA to disapprove the Arizona SIP - an order that EPA

does not contest — the court of appeals necessarily trig-

gered the Agency’s plan promulgation duty as well. The

Court’s remand order simply directed EPA to do what the

statute and the prior district court decision unmistakably

required at that point.

4. The Ninth Circuit’s order came in the ccistext of a

long history of EPA delays in implementing the Clean Air

Act in Arizona. The Act required the state to submit a SIP

by 1979 adequate to ensure attainment of clean air stan-

dards by the end of 1982. 42 U.S.C. §7502(a); Pub. L. No.

95-95, §129(c). It further imposed the federal promulga-

tion duty on EPA to ensure that the attainment deadline

would be met if the state faltered. In Arizona, EPA did

not take final action on the Arizona SIP until 1986, and

refused to commence promulgation of a federal plan until

ordered to do so by the district court in 1987. By the time

this matter reached decision in the Ninth Circuit, Arizona

was more than eleven years delinquent in preparation of

- an adequate clean air plan, and nearly eight years delin-

quent in meeting clean air standards. The process would

have been protracted even further if respondents had

been forced to return to the district court for another

order requiring federal plan promulgation.

5. The Act’s judicial review provisions do not confer

exclusive jurisdiction on the district courts to order fed-

eral plan promulgation. Although §304(a)(2) allows the

district courts to order EPA performance of non-discre-

tionary duties, it does not by its terms limit such author-

ity exclusively to the district courts. Nor does §307, under

which the Ninth Circuit exercised jurisdiction below, con-

tain any language limiting the type of remedy that an

appellate court can order in reviewing EPA action in

approving a state implementation plan. As further dis-

cussed below, both courts and commentators have con-

cluded that courts of appeals can order EPA to perform

non-discretionary duties in matters properly brought

before such courts under §307 of the Act.

6. In the district court proceedings, EPA raised

many of the same arguments that it now presents against

being required to adopt a federal plan within six months:

e.g., that the time frame is insufficient and that the

demands on Agency resources are too great. The district

court rejected these arguments, and EPA chose not to

appeal. McCarthy v. Thomas, 17 Envtl. L. Rep. (Envtl. L.

Inst.) 21214, 21216-17 (D. Ariz. 1987), 18 Envtl. L. Rep.

(Envtl. L. Inst.) 21025, 21026 (D. Ariz. 1988). Moreover,

EPA does not have to start from scratch in preparing a

federal plan for Arizona. The carbon monoxide problem

in Phoenix and Tucson has been the subject of numerous

studies over the past eleven years (see e.g., Petition at 9a),

and the Agency has very recent experience in drafting a

proposed federal plan for Arizona. 53 Fed. Reg. 17378

(1988). In other cases, EPA has promulgated federal

implementation plans within approximately six months.

See e.g., District of Columbia v. Train, 521 F.2d 971, 978

(D.C. Cir. 1975), vacated on other grounds sub nom, EPA v.

Brown, 431 U.S. 99 (1977); Pennsylvania v. EPA, 500 F.2d

246, 249 (3rd Cir. 1974).

s.

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REASONS FOR DENYING THE WRIT

This Court’s long standing practice has been to

refrain from reviewing questions not raised in a timely

manner in the proceedings below. Because EPA did not

object to respondents’ request for a federal plan pro-

mulgation order until after the decision below, review

should accordingly be denied. This. Court’s decision last

term in General Motors Corp v. United States, 110 S. Ct.

2528 (1990), provides no conceivable basis for vacating

and remanding this case for further consideration by the

court of appeals. General Motors simply held that EPA is

not barred from bringing suit to enforce an existing state

implementation plan where the Agency has delayed

action on a proposed revision to that plan. The decision

says nothing whatsoever about a circuit court’s authority

to enter appropriate remand orders upon finding that

EPA has illegally approved a deficient state plan under

the Act. Courts of appeals have routinely issued remand

orders directing EPA to perform nondiscretionary duties

where those duties are set forth explicitly in the Act and

flow directly from the court’s decision on the merits of a

petition for review. A plan promulgation order was par-

ticularly apt under the unique circumstances of this case,

where EPA had already once before been ordered to

prepare a federal plan and compliance with clean air

standards was more than seven years past due.

1. The general rule is that this Court will decline

review On issues not raised in a timely manner below. See

EEOC v. FLRA, 476 U.S. 19, 24 (1986). The rule applies

with full force where, as here, the issue was not raised

until a petition for rehearing in the court of appeals.

Hoover v. Ronwin, 466 U.S. 558, 574 n. 25 (1984). The

Agency’s tardiness strongly suggests that its challenge to

the relief requested is little more than an afterthought.

The fact that EPA did not seek to stay the Ninth Circuit’s

mandate and has already published its proposed FIP

further undermines any claim that the remand order

raises serious problems deserving of this Court’s atten-

tion.

2. This Court’s decision in General Motors is com-

pletely irrelevant to the correctness of the Ninth Circuit’s

remand order below. The sole issue in General Motors was

whether EPA could be barred from bringing suit to

enforce an existing state implementation plan on the

ground that the Agency had unreasonably delayed action

on a proposed revision to that plan. The Court found no

enforcement bar because the Act did not reveal any con-

gressional intent to preclude enforcement under the cir-

cumstances. 110 S. Ct. at 2533-34. The decision says

nothing whatsoever about the authority of the circuit

courts to enter appropriate remand orders in Clean Air

Act cases, and does not hold that district courts have

exclusive authority to order EPA performance of non-

discretionary duties. The Court’s opinion does note in

passing that §304 of the Act provides one possible avenue

of relief for unreasonable EPA delay, but does not in any

way suggest that the district courts have the sole author-

ity to order EPA compliance with the statute. 110 S. Ct. at

2534.

Even if General Motors is read more broadly to hold

that the courts may not supplant statutory remedies

under the Act with judicially created ones, the decision

below is unaffected. The remedy ordered by the Ninth

Circuit, federal plan promulgation by EPA, is precisely

the one mandated under §110(c) of the Act. It was not

created by some inference of the court as was the enforce-

ment bar in General Motors. Nor is there any language in

the Act expressly precluding a circuit court from enforc-

ing the clear mandate of §110(c). To the contrary, §307

expressly confers exclusive jurisdiction on the courts of

appeals to act on petitions for review such as the one in

this case. See e.g., City of Seabrook v. Costle, 659 F.2d 1371,

1373 (5th Cir. 1981).

3. There is nothing novel or unusual in the Ninth

Circuit’s remand order in this case. Other circuit courts

have ordered EPA to promulgate federal plan provisions

upon finding that the Agency had illegally approved

inadequate state plans. See, e.g., Natural Resources Defense

Council v. EPA, 478 F.2d 875, 888-91 (1st Cir. 1973); Natural

Resources Defense Council v. Environmental Protection

Agency, 475 F.2d 968, 970-72 (D.C. Cir. 1973). Circuit

courts have also routinely issued remand orders directing

EPA to perform other non-discretionary duties, where

those duties flowed directly from the court’s decision on

the merits of a petition for review. See, e.g., Environmental

Defense Fund v. EPA, 852 F.2d 1316, 1331 (D.C. Cir. 1988),

cert. denied, 109 S. Ct. 1120 (1989); Abramowiiz v. U.S. EPA,

832 F.2d 1071, 1075-76, 1078-79 (9th Cir. 1987); Sierra Club

v. EPA, 719 F.2d 436, 469-70 (D.C. Cir. 1983), cert denied,

468 U.S. 1204 (1984); Connecticut Fund for the Environment

v. EPA, 672 F.2d 998, 1009 n. 24 (2d Cir.), cert denied, 459

U.S. 1035 (1982). The decisions recognize that there is

considerable overlap between the Act’s judicial review

provisions, §§304 and 307, and that the circuit courts are

not precluded from ordering EPA to carry out mandatory

duties in cases properly before them under §307 merely

because similar relief might be available in th» district

court under §304. See also Indiana & Michigan Electric Co.

v. EPA, 733 F.2d 489, 490-91 (7th Cir. 1984); Oljato Chapter

of Navajo Tribe v. Train, 515 F.2d 654, 661 n.9 (D.C. Cir.

1975); 1 W.H. Rodgers, Jr., Environmental Law: Air &

Water §3.3 at 197 (1986). The arbitrary limitation on cir-

cuit court powers urged by EPA would result in repeated

games of “jurisdictional badminton” between the court of

appeals and the district court that would seriously under-

mine enforcement of the Act. See Abramowitz v. U.S. EPA,

832 F.2d at 1075-76.

This Court has likewise ruled that once court of

appeals jurisdiction over administrative action is pro-

vided by statute, it may be extended in the interests of

judicial economy to include closely related matters that

otherwise would be subject to review in district court.

Consolo v. Federal Maritime Commission, 383 U.S. 607,

616-617 (1966). On a petition for review, a court of

appeals may exercise equitable powers in its choice of

remedy as long as it remains within the bounds of the

statute and does not intrude into the administrative prov-

ince. Ford Motor Co. v. N.L.R.B., 305 U.S. 364, 373 (1939).

See also 5 U.S.C. §706(1) (requiring reviewing courts to

compel Agency action unlawfully withheld or unreason-

ably delayed). Here, the court of appeals has prudently

exercised its powers and prevented a needless waste of

judicial resources by directing EPA to do what the Clean

Air Act plainly required under the circumstances. The

court’s order does not in any way intrude upon matters

that are wholly within the Agency’s discretion, and in

that respect this case is plainly distinguishable from those

cited by EPA (Petition at 9-10) limiting judicial inter-

ference in matters of Agency judgment.

4. EPA’s assertions about the inadequacy of the time

allowed for plan preparation are unfounded. As already

noted above, much of the gromndwork for an Arizona

implementation plan had already been completed before

the court of appeals decision below, and the district court

has previously rejected EPA claims that a six month time

frame is inadequate for the task. The brevity of the public

comment period on EPA’s pending plan proposal is due

to the Agency’s delay in publishing the proposal - it is

hardly the fault of the court of appeals. Nor can EPA

seriously complain about the court of appeals’ refusal to

allow EPA to approve yet another Arizona SIP submittal

in lieu of adopting a federal plan. Given the consistent

inadequacy of the state’s submissions for more than a

decade, and the fact that EPA had already once been

ordered to promulgate a federal plan, the court of appeals

was fully justified in requiring firm and final action by

EPA itself. See Arizona v. Thomas, 829 F.2d 834, 839 (9th

Cir. 1987).

10

5. On October 27, 1990, Congress completed passage of

the Clean Air Act Amendments of 1990. As of this writing,

these amendments have yet to be signed by the President,

and respondents have been unable to secure an official copy.!

The respondents are informed that the amendments do not

make any material changes in the Act relevant to the sole

issue raised by EPA in its petition for certiorari - namely, the

authority of the circuit courts to order FIP promulgation as

part of a remand order. The bill apparently does not alter the

relevant language of §307(b)(1) of the Act under which the

Ninth Circuit exercised jurisdiction below, or the relevant

language of §304(a) concerning district court authority to

order EPA performance of nondiscretionary duties. See 136

Cong. Rec. 16953 (daily ed. Oct. 27, 1990) (statement of

Senate Managers).

CONCLUSION

For the foregoing reasons, the petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

Davip S. BARON

Arizona Center for Law

in the Public Interest

3208 E. Fort Lowell Road

Tucson, Arizona 85716

(602) 327-9547

Counsel for Respondents

November 9, 1990

1 The bill was passed on the very last day of the session,

and printing was apparently delayed due to the press of end of

session business.