Reply Brief of Petitioner — Clean Air Coordinating Committee v. Roth Adam Fuel Co.

Is Taz

Supreme Court of the Auited States

Ocroszer Tzam, 1972

No. 72-243

REPLY MEMORANDUM OF PETITIONER

The brief of Respondent coal interests raises a multi-

tude of arguments for the first time in the certiorari pro-

ceedings including Supreme Court Rule 19 reasons for

certiorari not raised by petitioner, the assertion that only

one question is involved, the claim that there is no fed-

eral jurisdiction because no federal question is supposed-

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ly involved, and the issue of the noninvolvement of the

Illinois Pollution Control Board (“State Board”) and the

Federal Administrator of the Environmental Protection

Agency (“Federal Administrator”).

Said respondents assert that the only question in the

case is that of a private party using the “express au-

thorization” exception to the federal anti-injunction stat-

ute. There are three questions, one involving the appli-

cation of the “express authorization” exception but not

involving standing of a private party to use that excep-

tion for no case law opposes such use, a second involving

the “superior federal interest” exception to the anti-in-

junction statute and a third involving private party stand-

ing to use the “superior federal interest” exception. The

questions themselves do not give a sufficient indication of

the importance of granting certiorari.

Respondent begins its legal argument by making it ap-

pear that petitioner is relying for certiorari on reasons

of conflicts between circuits, conflicts with state law and

conflicts with decisions of this Court. Petitioner in its

first brief did not rely on these conflicts as a reason for

certiorari and respondent has raised them as straw men

it could try to knock down. Petitioner requested certi-

orari because an important federal question involving the

interpretation of a new federal law needed resolution by

this Court for that question was not only important to

this case but would reoccur throughout the country as

implementation plans are constantly formulated under the

Clean Air Act and because the decision below delays the

application of federal regulations designed to stop pres-

ently occurring harm to human health, and affects state

imput to such plans.

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Because said respondents raised the question of conflicts

between circuits, petitioner feels it must bring to the

Court’s attention three such conflicts. First, the Seventh

Circuit holds that there can be state court review of the

state suggestions for a federal regulation which were

made under the terms of the federal Clean Air Act. That

state proposal was part of a unitary process by which

the Federal Administrator causes an implementation

plan to become a federal regulation in force in a state

and review of this process by statute can only occur in

the United States Court of Appeals within thirty days

after final action by the Federal Administrator. 42 U.S.C.

§1857h-5(b)(1). The ninth eireuit holds that when Con-

gress designates a forum for judicial review of adminis-

trative action, such forum is exclusive, and that result

does not depend on the word “exclusive” being in the

statute providing for said forum. UMC Industries v. Sea-

borg, 439 F. 2d 953 at 955 (9th Cir. 1971).

Secondly, the Second Circuit in Studebaker v. Gittlin,

360 F. 2d 692 (1966) and the Fifth Cireuit in Tampa

Phosphate v. Seabord Coast Line, 418 F. 2d 387 at 392-4

(1969) held that private parties such as petitioner have

standing to use the “superior federal interest” exception

to the federal anti-injunction statute for public purposes

in circumstances in which standing was denied by the

Seventh Circuit in this case. Respondents have attempted

to give those cases and others narrower meaning than

they have, although petitioner admits that the use of the

“superior federal interest” exception by a private party

is highly limited, but in a way to permit use by peti-

tioners in this case.

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Thirdly, the Seventh Cireuit decision is in conflict with

portions of the Third Cireuit’s yet unreported decision of

Getty Oil v. Ruckelshaus (No. 72-1419) which is the only

other circuit decision dealing with the amended Clean

Air Act. In that case Delaware proposed implementation

plan provisions that were identical for a state regula-

tion and also for transmittal to the Federal Administra-

tor for his action as required under the Clean Air Act.

The plant was adopted as a state regulation and was

approved by the Federal Administrator as a federal

regulation for Delaware. The court pointed out that

Getty Oil could have appealed the state regulation to the

state court and the federal regulation to the United

States Court of Appeals within the limited time pro-

vided by 42 U.S.C. §1857h-5(b)(1). Getty instead filed

a request for a variance from the state regulation with

the state administrative agency, which if granted would

have had to have federal approval because of federal

preemption of minimum implementation plan standards.

When the state did not proceed with granting Getty a

variance, Getty obtained a preliminary injunction in state

court against the enforcement of the state regulation, and

when federal enforcement of the federal regulation (which

was identical to the state regulation) was threatened,

Getty attempted to obtain a temporary restraining order

in federal district court against such enforcement. The

Third Circuit held that the only review of the federal im-

plementation plan process was exclusively in the United

States Court of Appeals within thirty days of the Fed-

eral Administrator’s final action on the plan. The Third

Circuit went on to say at page 12 of the opinion that

“Getty attempts to end run around the (Clean Air) Act

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by seeking pre-enforcement judicial review before WARC

(the state administrative agency) has had an oppor-

tunity to pass upon Getty’s application for a variance,

and before the (Federal) Administrator has had an op-

portunity to review any forthcoming state action.” The

Seventh Circuit has permitted such an “end run” as pro-

hibited by the Third Circuit by permitting a state court

to preempt the Federal Administrator’s consideration of

state suggestions for a federal regulation by enjoining

the state from formalizing portions of the suggested plan

that the state was to submit to the Federal Administrator

under the terms of the Clean Air Act. The state court

preemption of the Federal Administrator’s considerations

is contra to the above referred to provisions of the Clean

Air Act which state that the Federal Administrator’s con-

siderations are only subject to limitations through judi-

cial review in the United States Court of Appeals within

a limited period after he has acted.

Respondent coal interests repeatedly raise the issue of

the lack of involvement in this case by the State Board

and the Federal Administrator. The coal interests pre-

dict in their brief that the State Board will not partici-

pate knowing that they have taken steps to prevent such

participation. While assuring this Court that this is sup-

posedly a state court matter, said respondents have told

the state appellate court that it should not interfere with

the injunction against the State Board “until a deter-

mination can be obtained from the United States Su-

preme Court” in this case. The State Board, to prevent

itself from being whipsawed between the two cases by

the tactics of the respondent coal interests, is not par-

ticipating in this case. This has nothing to do with the

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merits. In the trial court the State Board stated its in-

tention to dismiss as a defendant and intervene as a

plaintiff with the petitioner, but minutes later the judge

stayed all proceedings. That stated intention is signifi-

cant. The Federal Administrator is in an awkward posi-

tion being forced to suggest substitute regulations be-

cause the state court injunction halted the State Board’s

formal transmittal. Respondent coal interests have re-

fused to participate in federal hearings on the Federal

Administrator’s suggestions. However, this case should

not revolve around respondents extra record innuendoes

regarding the interest of other governmental entities and

petitioner’s forced extra record explanations. What is

important is the questions and issues raised and these

should be revolved on their own merits as they were re-

solved in a similar situation in Studebaker v. Gittlin, 360

F. 2d 692 (2nd Cir. 1966) where a private party en-

forced the Security and Exchange Commission regula-

tions without that Commission or any other governmental

entity being a party.

Respondent coal interests next raise the issue of fed-

eral jurisdiction, which was not reached by the appellate

court. They claim that there is no jurisdiction under 28

USC §1331 because the case involves no federal question,

but supposedly only deals with questions of state law.

They neglect to make it clear that the state court pro-

ceeding has two effects, enjoining passage of a state regu-

lation and at the same time, enjoining transmittal of

finalized state recommendations for the Federal Adminis-

trator which is a part of the development of federal regu-

lations for Illinois. If the state suggestions to the Fed-

eral Administrator meet federal statutory criteria, they

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become federal regulations. (42 USC 4§1857c-5[a][2]).

State regulations must meet the minimum standards set

by the federal regulations (42 USC §1857d-1) and if

state enforcement of the state regulations does not oc-

cur, the Federal Administrator enforces the federal regu-

lations. (42 USC §1857c-8[a]J[1]). It should be obvious

that what a federal official can enforce is a federal regu-

lation, not a state regulation. The Getty Oil case, dis-

cussed above, makes the federal aspects clear. This ac-

tion was only to enjoin interference with the federal as-

pects. The fact that the Federal Administrator is now

considering its own implementation plan sections because

the state court enjoined state imput does not change the

fact of state imput rights and requirements under fed-

eral law and does not isolate what the state court did as

a state law question. Where the act of a state court en-

joining state officials from registering voters also inter-

fered with the 1965 Federal Voting Rights Act. a fed-

eral question was involved. United States v. Louisiana,

265 F. Supp. 703 (E.D. La. 1966). A state court injunc-

tion of a state authority which interfered with a federal

housing program involved a federal question. United

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

acts affecting federal regulatory plans cause federal

questions to arise. Wickard v. Filbourn, 317 U.S. 111 at

119-124 (1942) and White v. United States, 399 F. 2d

813 at 824 (8th Cir. 1968). If a state official was called

to a congressional hearing to testify regarding what

should be a federal regulation in his state, a federal mat-

ter is certainly involved and in this case which is similar,

a federal matter is certainly involved supporting federal

question jurisdiction.

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Said respondents also claim that there is no federal

jurisdiction under petitioner’s alternative jurisdictional

ground, 28 U.S.C. 1337. They admit that the Clean Air

Act was passed by Congress in the valid exercise of its

commerce power. United States v. Bishop Processing, 287

F. Supp. 624 at 629 (D. Md. 1969). But said respondents

claim a private party cannot assert that jurisdictional

ground. The law is contrary. Under that section a dis-

trict court has jurisdiction over any civil action arising

out of any act of congressionally regulated commerce

without attempting a limitation with regard to actions

brought by individuals. Lyons v. Atlantic Coast Line, 224

F. Supp. 1014 at 1016-17 (W.D. S. C. 1964) and cases

cited therein.

Respectfully submitted,

Ricuarp M. Kates

208 S. LaSalle Street

Suite 572

Chicago, IIlinois 60604

Counsel for Petitioner

September 26, 1972