Brief for the Respondent in Opposition — Clean Air Coordinating Committee v. Roth Adam Fuel Co.

SEP 11 1977

MICHAEL RODAK, JR.,CLERK

Supreme Court of the Anited States

Ocrozer Tn, 1972.

No. 72-243

CLEAN AIR COORDINATING COMMITTEE,

ag Petitioner,

vs.

ROTH ADAM FUEL COMPANY, CHICAGO COAL

MERCHANTS ASSOCIATION, ILLINOIS POLLU-

TION CONTROL BOARD, Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

BRIEF FOR RESPONDENTS IN OPPOSITION.

Harry A. Youne, JR.,

ALLEN C. ENGERMAN,

Rosert J. Lirton,

33 North La Salle Street,

Chicago, Illinois,

Attorneys for Respondents

Roth Adam Fuel Com-

pany and Chicago Coal

Merchants Association.

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Statutory Provisions Involved .................205. 2

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Argument:

I. The Decision of the Court of Appeals is not

in Conflict With Decisions of Other Circuits,

With State Law, or With the Decisions of

. ke ondbh neat uneeauces 4

II. The Decision of the Court of Appeals was

Correct and Does not Require Review by

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CrraTions.

Cases.

Atlantic Coast Line R. Co. v. Brotherhood of Loc.

Eng., 398 U. S. 281, 90 S. Ct. 1739, 26 L. Ed. 2d 234

FF nes badhe h ban acens ckawek eas 9

Machesky v. Bizzell, 414 F. 2d 283 (5 Cir. 1969) .... 5

Mitchum v. Foster 1 „92 S. Ct. 2151, 32

, rc wen da 6, 7, 8

Studebaker Corporation v. Gittlin, 360 F. 2d 692 (2

Tampa Phosphate R. Co. v. Seaboard Coast Line R.

Co., 418 F. 2d 387 (5 Cir. 1969), cert. den. 397 U. S.

910 (1970), reh. den. 397 U. S. 1030 (1970) ........ 6

United States v. Barrett, 442 F. 24 642 (4 Cir. 1971). 5

United States v. Louisiana, 265 F. Supp. 703 (K. D.

la BOOB) hh: 5

Younger v. Harris, 401 U. S. 37, 91 8. Ct. 746, 27 L.

Ed. 2d 66 (17/i7777777777777777 7

Statutes.

OB UT. a a .. 9

LI 9

III 5, 6, 8, 9

2 U. S. C. 187 (ß ( 8

42 U. 8. C. 17e s ù⸗ „ 6

42 U. 8. C. § 1870-5, ..... 2... ccc c cee ccncceees 7

Miscellaneous.

U. S. Sup. Ct. Rule 19, 28 U. S. OGG. 8

Supreme Court of the Gnited States

Ocrosza Team, 1972.

CLEAN AIR COORDINATING COMMITTEE,

Petitioner,

vs.

ROTH ADAM FUEL COMPANY, CHICAGO COAL

MERCHANTS ASSOCIATION, ILLINOIS POLLU-

TION CONTROL BOARD, Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

This is the brief of Respondents Roth Adam Fuel Com-

pany and Chicago Coal Merchants Association in opposi-

tion to the petition for a writ of certiorari filed herein. Re-

participated in the proceedings below, and it is not anti-

cipated that said Respondent will participate in these pro-

ceedings.

OPINIONS BELOW.

The ruling of the United States District Court for the

officially reported. The substance of said ruling is set forth

on page 3 of Petitioner s appendix. The opinion of the

United States Court of Appeals for the Seventh Circuit

has not yet been officially reported, but appears in Petition-

er's appendix.

The jurisdictional requisites are adequately set forth in

the petition.

QUESTION PRESENTED.

Does the Federal Clean Air Act contain an express

authorization’ within the meaning of 28 U. S. C. § 2283

which would permit a United States District Court, at the

instance of a private party, to enjoin proceedings in a

state court?

forth in the petition.

STATEMENT OF THE CASE.

This is an action by an unincorporated association filed

in a United States District Court seeking to enjoin the

enforcement of a preliminary injunction issued on April

27, 1972 by the Circuit Court of Cook County, Illinois

against the Illinois Pollution Control Board, an agency of

the State of Illinois. The state court injunction, which is

presently on appeal in the Illinois Appellate Court, tem-

porarily enjoins said state agency from adopting a certain

state regulation issued pursuant to a state statute relat-

— a

In the proceedings in the Cireuit Court of Cook County,

Illinois, entitled Roth Adam Fuel Company, et al v. Illinois

Pollution Control Board, et al., No. 72 CH 1484, which action

petitioner seeks to enjoin, respondents challenged a pro-

posed rule of the Illinois Pollution Control Board which

would limit the emission of particulate matter from existing

solid fuel combustion sources located in the Chicago Major

Metropolitan Area. The effect of this rule, as admitted by

the Illinois Pollution Control Board and as found by the

Cireuit Court of Cook County, Illinois, would be a total

ban on the use of coal for residential and commercial space

heating purposes in the Chicago Major Metropolitan Area.

After an evidentiary hearing in the Circuit Court of Cook

County, Illinois, that court (Hon. Nathan M. Cohen, Judge

Presiding) entered on April 27, 1972, an order granting a

Pollution Control Board from adopting the subject rule

or any other rule which has a similar effect. On April 28,

1972, a notice of interlocutor} appeal was filed by the IIli-

nois Pollution Control Buard which is also a respondent in

this case. Accordingly, the state court proceedings are now

pending on appeal to the Illinois Appellate Court.

The action pending in the state courts of Illinois does

not attack or seek to invalidate any federal statute, or any

rule or regulation of any federal agency, or any action of

any federal agency, but is concerned solely with statutes

and regulations of the State of Illinois and of the agencies

of the State of Illinois. Neither the United States nor any

Federal agency is a party to the state court proceedings.

During the pendency of the state court proceedings, peti-

tioner commenced the present action in the United States

District Court for the Northern District of Illinois, Eastern

Division, seeking to enjoin the enforcement of the state

court injunction. The relevant facts relating to the action

in the district court are fully stated in the opinion of the

United States Court of Appeals for the Seventh Circuit,

which appears in the appendix to the petition herein.

Briefly stated, the court of appeals refused to grant peti-

4

tioner’s motion for a preliminary injunction and remanded

the case to the district court with directions to dismiss the

action, on the grounds that the federal anti-injunction

statute, 28 U. S. C. § 2283 precluded the federal courts from

enjoining the state court proceedings.

The United States Environmental Protection Agency,

which had originally been named as a party defendant by

petitioner, was dismissed at its request as a party defendant

while the action was pending in the district court, and has

taken no active part in these proceedings. The Illinois Pol-

lution Control Board, the principal defendant in the state

court proceedings and also a respondent in these proceed-

ings, has not actively participated in these proceedings.

On or about July 27, 1972, the United States Environ-

mental Agency, pursuant to 42 U. S. C., § 1857¢-5(c), pro-

posed as a substitute for the state rule which the Illinois

Pollution Control Board was enjoined from adopting, a

federal regulation which will regulate particulate emis-

sions from residential and solid fuel combustion sources in

the Chicago area by regulating the ash content of (rather

that particulate emissions from) solid fuels which may be

sold or used. Hearings on said proposed federal rule com-

menced in Chicago, Illinois on August 31, 1972. When and

if adopted said federal regulation will, by operation of fed-

eral law, supercede Illinois law and regulations.

ARGUMENT.

I.

The Decision of the Court of Appeals Is Not in Conflict with

Decisions of Other Circuits, with State Law, or with

Decisions of This Court.

The court of appeals in the present case has held that

there is no express authorization in the Federal Clean

Air Act, 42 U. S. C. § 1857 et seq., which would permit a

5

private party to invoke the jurisdiction of the federal courts

to enjoin proceedings pending in a state court, and that

petitioner’s action is accordingly barred by 28 U. S. C.

§ 2283. This decision is not in conflict with decisions of

other circuits.

Petitioner has cited Studebaker Corporation v. Gittlin,

360 F. 2d 692 (2d Cir. 1966) and Machesky v. Bizzell, 414

F. 2d 283 (5th Cir. 1969) as authority for the proposition

that a private party is free from the prohibitions of 28

U. S. C. § 2283 where such party is attempting to enforce

a superior federal interest. Studebaker Corporation v.

Gittlin, 360 F. 2d 692 (2d Cir. 1966), involved an action by

a private party for the enforcement of rights under the

Securities Exchange Act, which action was a necessary

supplement to action by the Securities Exchange Commis-

sion. The present case is not a supplement to action by any

federal agency, and involves no potential or present activi-

ties of interest to the United States or any of its agencies.

The United States Environmental Protection Agency, which

was originally named as a party-defendant, was dismissed

from this action with prejudice, and has not seen fit to

intervene as a party-plaintiff.

In Machesky v. Bizzell, 414 F. 2d 283 (5th Cir. 1969) a

private party was allowed to maintain an action in the fed-

eral courts to enjoin state court proceedings in order to

protect constitutionally favored First Amendment rights.

No such rights are involved in the present case.

In United States v. Barrett, 442 F. 2d 642 (4th Cir. 1971)

and United States v. Louisiana, 265 F. Supp. 703 (E. D. La.

1966) cited by petitioner, both actions were commenced by

the United States to enforce federally protected rights.

Petitioner in the present case is a private party and neither

the United States nor any federal agency has seen fit to

intervene in this action to protect any ‘‘superior federal

interests.

Finally, in Tampa Phosphate R. Co. v. Seaboard Coast

Line R. Co., 418 F. 2d 387 (5th Cir. 1969), cert. den. 397

U. S. 910 (1970), reh. den. 397 U. S. 1030 (1970), the court

held that the Interstate Commerce Act contained an ex-

press authorization for injunctive actions by private

parties, which brought the plaintiff in that case within the

exception to 28 U. S. C. § 2283. No such express authoriza-

tion can be found in the Federal Clean Air Act. The

decision of the Court of Appeals in the present case is

accordingly not in conflict with the decisions of any other

circuit.

In addition, the court of appeals in the present case

has not decided an important state question in a way in con-

flict with applicable state law. No point of Illinois law

entered into or was affected by the court of appeal’s deci-

sion. The court of appeals merely applied a federal statute,

28 U. S. C. § 2883, to the facts of this case and refused to

interfere with a proceeding pending in the courts of the

State of Illinois.

Finally, the decision of the court of appeals in no way

conflicts with any applicable decision of this Court. To the

contrary, the court of appeals has correctly applied and

followed the rule set forth in Mitchum v. Foster, U. 8.

— 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972), wherein this

court stated at 92 S. Ct. 2155 that:

„In short, if aln! . . action is not an expressly

authorized’’ statutory exception, the anti-injunction

law absolutely prohibits in such an action all federal

equitable intervention in a pending state court proceed-

ing, whether civil or criminal, and regardless of how

extraordinary the particular circumstances may be.

and further at 92 S. Ct. 2159-2160 that:

‘«(1)t is clear that, in order to qualify as an expressly

authorized’’ exception to the anti-injunction statute

an Act of Congress must have created a specific and

7

uniquely federal right or remedy, enforceable in a

federal court of equity, which could be frustrated if the

federal court were not empowered to enjoin a state

court proceeding.

The test, rather, is whether an Act of Congress,

clearly creating a federal right or remedy enforceable

in a federal court of equity, could be given its intended

scope only by the stay of a state court proceeding.

Petitioner has yet to indicate wherein the Federal Clean

Air Act expressly authorizes’’ federal judicial inter-

vention in pending state court proceedings, or wherein said

act clearly creates a federal right or remedy enforceable

in a federal court which can be effectuated only by a stay of

state court proceedings.

In the present case, respondents have, in the state court

proceedings which petitioner seeks to enjoin, sought review

of state regulations of a state agency adopted pursuant to

a state statute. Accordingly, the state court proceedings

which petitioner seeks to enjoin do not interfere with any

area of exclusive federal law. The United States Environ-

mental Protection Agency is free to promulgate and adopt

regulations for the State of Illinois pursuant to 42 U. S. C.

§ 1857e-5(c) and in fact has already commenced proceedings

in this regard. Accordingly, a stay of the state court pro-

ceedings in the present case is not necessary to effectuate

any federal right or remedy created by the Federal Clean

Air Act. The decision of the court of appeals therefor is in

accord with the applicable decisions of this court.

This court has, in its recent decisions, delt extensively

with the subject of federal judicial intervention in state

court proceedings. Younger v. Harris, 401 U. S. 37, 91 S. Ct.

746, 27 L. Ed. 2d 669 (1971) ; Mitchum v. Foster, U. 8.

— 92 S. Ct. 2151, 32 L. Ed. 2d 705 (1972). Accordingly,

none of the considerations governing review on certiorari

PFF

set forth in U. S. Sup. Ct. Rule 19 are present, and this

case does not warrant or merit review by this court on

certiorari.

II.

The Decision of the Court of Appeals Was Correct and

Does Not Require Review by This Court.

The state court proceedings which petitioner seeks to

enjoin present no challenge to any federal statute or regula-

tion nor to the action of any federal agency, as said

proceedings are directed against a regulation of a state

agency adopted pursuant to a state statute. Neither the

United States nor any federal agency are parties to or

affected by the state court proceedings, nor have they

indicated any interest in the present proceedings or taken

any steps to protect any alleged ‘‘superior federal in-

terests.’’ Even the Illinois Pollution Control Board, the

principal defendant in the state court proceedings and a

nominal respondent in these proceedings, has taken no

active interest in these proceedings.

The subject matter of this action, i.e. pollution control,

does not rest exclusively in the federal courts. The Federal

Clean Air Act contemplates the implementation and en-

forcement of pollution control programs by the several

states. See 42 U. S. C. §§ 1857 (a) (3), 1857c-2(a). Therefor,

no exclusive federal jurisdiction over pollution control pro-

grams is created by the Federal Clean Air Act.

Accordingly, no ‘‘uniquely federal right or remedy”’ is

being frustrated in the present case so as to justify a stay

of state court proceedings by a federal court at the instance

of a private party. As there is no express authorization in

the Federal Clean Air Act which would permit such an

invocation of federal jurisdiction, the Court of Appeals was

correct in holding that 28 U. S. C. § 2283 is a complete bar

to the maintenance of petitioner’s action. Mitchum v. Foster,

— v. 8. 92 8. Ct. 2151, 32 L. Ed. 2d 705 (1972).

Where there are any doubts as to the propriety of a fed-

eral injunction against a state court proceeding, such doubts

should be resolved in favor of permitting state courts to

proceed in any orderly fashion to finally determine the

controversy. Atlantic Coast Line R. Co. v. Brotherhood of

Loc. Eng., 398 U. S. 281, 297, 90 S. Ct. 1739, 26 L. ed. 2d

234 (1970).

Since the Court of Appeals based its decision solely on

28 U. S. C. § 2283, the other arguments of the parties re-

garding the district court’s jurisdiction were not con-

sidered. Respondents submit, however, that the court of

appeals had ample reason to dismiss petitioner’s action for

lack of federal jurisdiction. No federal statute, federal

regulation, or action of any federal agency, has been ques-

tioned or is involved in the state court proceedings. The

district court therefor had no jurisdiction under 28 U. S. C.

§ 1331 (Federal question jurisdiction).

In regards to petitioner’s claim that the district court

had jurisdiction pursuant to 28 U. S. C. § 1337, while there

is no doubt that Congress has validly exercised its power to

regulate interstate commerce in enacting the Federal Clean

Air Act, (which in part seeks to regulate the movement of

pollutants across state lines) this does not, however, mean

that a complaint involving“ the Federal Clean Air Act,

which is filed by a private party, confers jurisdiction on a

United States District Court under 28 U. S. C. § 1337. The

present case is not a suit to abate pollution, nor has it

been brought by the United States or any agency thereof.

There is no provision in the Federal Clean Air Act which

would serve to confer jurisdiction on a federal court

pursuant to 28 U. S. C. § 1337 to entertain a suit by a private

citizen to enjoin a state court proceeding.

The decision of the Court of Appeals was correct and

in accord with the decisions of this court, and does not

require review by this court.

10

CONCLUSION.

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari herein should be

denied.

Respectfully submitted,

Hangar A. Younse, In.,

Ax C. ENcERMAN,

Rosert J. Lrrrox,

33 North La Salle Street,

Chicago, Illinois,

Attorneys for Respondents

Roth Adam Fuel Com-

pany and Chicago Coal

Merchants Association.