Memorandum — Clean Air Coordinating Committee v. Roth Adam Fuel Co.

INDEX

Cases :

Amalgamated Clothing Workers v. Richman

Brothers Co., 348 U.S. 511_----- anti

Letter Minerals, Inc. v. United States,

gE ee ea

Mitchum Vv. Foster, 407 U.S. 225

National Labor Relations Board v. Nash-

Finch Co., 404 U.S. 138 7

United States v. Barrett, 442 F. 2d 642___-

~ Statutes, regulations and rule:

Clean Air Act, 77 Stat. 392 et seq., as

amended, 42 U.S.C. 1857 et seq.:

Section 109, 42 U.S.C. 1857c-4

Section 110, 42 U.S.C. 1857¢-5___ 3, 4,5, 6, 8

Section 304, 42 U.S.C. 1857h

28 U.S.C. 1331

28 U.S.C. 1337

40 CFR. 51___-_-

42 C.FR. 410___-

42 C.F-R. 420

36 Fed. Reg. 8186__-

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Illinois Rule 203(g) (1) (A)

(I)

491-135—72

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mentation plan a local regulation (Rule 203(g) (1)

(A)) essentially banning all use of coal for residential

and commereial space heating purposes in the Chi-

cago metropolitan area.*

Respondent Roth Adam Fuel Company moved to

dismiss the federal suit on grounds, inter alta, that the

district court was without jurisdiction under 28 U.S.C.

1331 and 1337, and that it was, in any event, precluded

by the federal anti-injunction statute (28 U.S.C. 2283)

from enjoining the state court proceedings. Follow-

ing a hearing, the district court determined that it

had concurrent jurisdiction over the matter with the

Circuit Court of Cook County; the federal court

stayed its hand, however, pending further notice (Pet.

App. 3). The court of appeals, ‘‘[t]reating the order

appealed from as a denial of an injunction”’ (Pet.

App. 7), affirmed. It concluded that the bar in the

federal anti-injunction statute against federal court in-

junctions of state court proceedings applies in the

circumstances presented, and it therefore remanded

the case to the district court with instructions to dis-

miss.”

4Qn April 27, 1972, the Illinois Circuit Court of Cook

County entered a preliminary injunction against the Illinois

Pollution Control Board, prohibiting it from adopting Rule

203(g)(1)(A) unless it contained a provision to compensate

businesses which would be injured by adoption of the Rule. That

ruling is presently pending on interlocutory appeal to the Ili-

nois Appellate Court (Pet. App. 3-4).

? Because the court of appeals disposed of the case under the

federal anti-injunction statute, it deemed it unnecessary to reach

the other arguments relating to the district court's jurisdiction

(Pet. App. 7).

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2. The decision below is, in our view, correct and

does not warrant further review by this Court. The

state court proceedings involved here do not jeopardize

“‘a superior federal interest” (Pet. 12), as petitioner

contends. Nor is there anything in the Clean Air Act

authorizing issuance of a federal injunction in these

circumstances. Accordingly, dismissal of the suit is

proper.

A. Petitioner’s argument rests in part on a limited

judicial exception to the federal anti-injunction statute,

which recognizes that the United States may obtain

an injunction against state court proceedings when it

ean show that the state proceedings, if not stayed,

will have a direct adverse effect on federal interests.

See Leiter Minerals, Inc. v. United States, 352 U.S.

220, 225-226 ; National Labor Relations Board v. Nash-

Finch Co., 404 U.S. 138, 144-147; United States v.

Barrett, 442 F.2d 642, 645-646 (C.A. 4). In our view,

however, even assuming arguendo that the “superior

federal interest” argument is available to private

litigants—a point on which the parties divide sharply

(compare Pet. 12-13 with Opp. 5-6)*—the proceedings

in the Illinois courts present no real threat to a

federal project or policy.

*It is clear that the Clean Air Act does not itself provide

for a private suit of this nature. As pointed out by the court

below (Pet. App. 6), the federal statute contemplates “citizen

participation” only “by way of public hearings on implemen-

tation plans (42 U.S.C. §§ 1857c-5(a) (1), 1857c-5(c)) and by

way of suit to enforce substantive emission standards or limi-

tations (42 U.S.C. §1857h-2) * * *.”

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tor to promulgate national air quality standards nec-

essary to protect the public health and welfare.‘ Such

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aie camelienmn, oul camiinne (7) easter wills eouallene

inspection requirements; and (8) provimons for revimon.

state plan and sent them to the federal agency. With

respect to Rule 203(g) (1)(A), whieh is due to become

effective May 30, 1975, subject to the state court pro-

ceedings challenged here, the Board added the pro-

(see n. 1, supra)—that the Rule “should not be con-

sidered to ban the use of coal for space heating in

residential and commercial buildings in the Chicago

7

Thus, the state court proceedings in Illinois do not,

as petitioner suggests, seriously jeopardize the federal

clean air-_progr: .a. Congress clearly contemplated that

many States would, for various reasons, be unable to

submit to the EPA Administrator completely satis-

factory implementation plans. It therefore devised a

“statutory scheme” calling for a coordimated effort

on the part of the federal government and the States

te achieve national air quality standards. Where, as

in this case, the State implemention pian is in some

respects deficient, and the State is unwilling or unable

to make the revisions necessary to conform the plan

to national standards, the Clean Air Act explicitly

provides for the promulgation of federal regulations

to remedy the deficiency. Whatever might be the mini-

mal delay that is caused by invoking this procedure—

a delay that might have been avoided had the state

court not been permitted to enjoin the adoption of

Rule 203(g)(1)(A)—it is a delay which Congress

fully anticipated and took into account in drafting

the federal legisiation.

Accordingly, we agree with the court of appeals

that “the scheme of the Federal Clean Air Act has

located in Chicago, Ill, any solid fuel which contains ash

in excess of the following limits:

Compliance date

Maximum ash content December 31, 1973

(percent, by weight) July 31, 1975

8.0

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not been thwarted by the state court suit” (Pet. App.

7). Notwithstanding the state proceedings, a suitable

implementation plan for the State of Illinois is being

devised well within the general time-frame contem-

plated for accomplishing the objectives of the federal

clean air program. Nor is the development of that plan

without state participation. The contested state litiga-

tion deals with but one aspect of the plan submitted by

the Illinois Pollution Control Board; in all other re-

spects the State is integrally involved in implementing

a program for Illinois that will enable that State to

achieve the national air quality standards. And, even

insofar as the ultimate plan concerns control of the

particulate emissions involved here, the State still

may have an opportunity to participate if the pre-

liminary injunction entered by the Circuit Court of

Cook County is reversed on appeal in the state courts.

For the Clean Air Act provides that, even after the

EPA Administrator has promulgated a regulation in

this area, that portion of the implementation plan

may be revised by the State if the revision satisfies

all other statutory criteria. 42 U.S.C. 1857¢-5(a) (3).

We therefore do not believe that either the policy or

the underlying purpose of the Clean Air Act is ad-

versely affected by the pending litigation in the Illi-

nois courts. Petitioner’s argument to the contrary, to

avoid the anti-injunction prohibition in 28 U.S.C.

2283, fails to appreciate the “statutory scheme”’ on

which it is based, and was properly rejected by the

court below.

3. The court of appeals also correctly rejected pe-

titioner’s alternative contention that the Clean Air

Act “expressly authorized” the granting of an in-

junction in these cireumstances and thus removed the

bar of the anti-injunction statute. As this Court stated

in Mitchum v. Foster, 407 U.S. 225, 238, the applica-

bility of the “expressly authorized’’ exception in 28

U.S.C. 2283 turns on “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 the state court proceeding.”

In the present context, there is, as we have indi-

eated, no need for such a stay to carry out the ob-

jectives of the Clean Air Act as Congress intended.

Congress has delegated to the EPA Administrator the

responsibility in the first instance of reviewing, and,

where appropriate, revising,state implementation plans

that will achieve clean air standards. Federal judi-

cial intervention is, by the terms of the Act (42 U.S.C.

1857c-5(f)(2)(B)), confined to appellate court re-

view of the Administrator’s decision to approve or dis-

approve the state plan, if suit is filed within 30 days

of the contested decision. Nowhere does the statute

suggest earlier consideration by the federal courts of

implementation plans proposed by the various States.

Accordingly, we agree with the court below (Pet. App.

5) that the injunctive relief sought by petitioner in

this case finds no “express” authorization in the Clean

Air Act “within even the most attenuated meaning of

the term” (Amalgamated Clothing Workers v. Rich-

man Brothers Co., 348 U.S. 511, 516).

10

For the foregoing reasons, it is the view of the

United States that the petition for a writ of certiorari

should be denied.

Respectfully submitted.

Exwin N. Griswop,

Solicitor General.

Kent FrizzE1,

Assistant Attorney General.

Ww. Braprorp REYNOLDs,

Assistant to the Solicitor General.

Epmunp B. CuiakK,

MartTmn GREEN,

James R. WALPOLE,

Attorneys.

C.S. GOVERNMENT PRINTING OFFICE: (872