Reply Brief — Getty Oil Co. v. Ruckelshaus

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Supreme Court of the United States

October Term, 1972.

No. 72-673.

GETTY OIL COMPANY (EASTERN OPERATIONS),

INC., a Delaware Corporation,

Petitioner,

».

WILLIAM D. RUCKELSHAUS, as Administrator of the

Environmental Protection Agency, and the ENVIRON-

MENTAL PROTECTION AGENCY,

Respondents.

REPLY BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Cnares F. Ricnarps, Jr.,

Davip S. Swayze,

Ricuarps, Layton & Fixcer,

4072 DuPont Building,

Wilmington, Delaware. 19899

Attorneys for Petitioner

Getty Oil Company

(Eastern Operations), lune.

International, 711 So. 30th St., Phila., Pa. 19143—Tel. SA 7-8711 Area Code 215

FFA RE BRIE PEG IN EEL Ge HOE Rs = NE

INDEX.

Page

SUMMARY OF ARGUMENT ...........c cece cece cece eeeee 1

BOTETIETED cccccccccncccccccccccccccccccccccccccceccees 1

CONCLUSION 2. ccccccccccccccccccccccccceccsesccsceseees 6

TABLE OF CITATIONS.

Cases: Page

Abbott Laboratories v. Gardner, 387 U. S. 136, 87 S. Ct. 1057,

18 L. Ed. 2d GB1 (1967) ........ 2. eee ween eee e ee eee 3

Anaconda v. Ruckelshaus, 4 ERC 940 (D. Colo. Dec. 18, 1972) 3, 4,5

Coe v. Armour Fertilizer Works, 237 U. S. 413, 59 L. Ed. 1027,

Pee ey Fi .) errr 4

Fuentes, et al. v. Shevin, et al., and Parham, et al. v. Cortese,

et al., — U. S. —, 32 L. Ed. 2d 556, 92 S. Ct. — (1972) 4

Morton v. Davis, 4 ERC 1735 (10th Cir. Nov. 24, 1972) ..... =

Statutes:

Federal Water Pollution Control Act Amendments of 1972, 86

Gant. SEG, GSAT 2.2.2... cc cccccccccccccscccecsceeces 5

National Environmental Policy Act, 42 USC Chapter 55 ..... 1,4,5

I nocenestancacsdccrancctecnnssnasanceenens 5

42 USC § 1857c-B(a) (4)... .- 1 cece cece eee eee e tence ees 1,2,3

7

“PRS SRC NO as

SUMMARY OF ARGUMENT.

The Government in its Answering Brief has chosen to

ignore rather than answer the questions presented in the

Petition for Certiorari. The brief omits any reference to,

or discussion of, the statute under which the Administrator

here purported to act. 42 USC § 1857c-8(a) (4). (Pet. p. 4).

It relegates the National Environmental Policy Act

(NEPA) question (Pet. p. 3) to an arbitrarily placed foot-

) note. It fails to identify any compelling governmental in-

, terest sufficient to justify summary disposition of the

compliance order without a due process hearing prior to

enforcement. The Government evidently hopes the Court

will draw the conclusion that the arguments it ignores are

not worthy of rebuttal. In fact, the Government has chosen

not to discuss the questions presented by this Petition be-

cause of its inability to deal with the questions presented

in a convincing way.

ARGUMENT.

1). The Administrator totally ignores the provisions

of 42 USC § 1857¢-8(a) (4) which provides in pertinent part

that:

‘‘Any order issued under this subsection shall

state with reasonable specificity the nature of the viola-

tion, specify a time for compliance which the Adminis-

trator determines is reasonable, taking into account

the seriousness of the violation and any good faith

efforts to comply with applicable requirements.”’

The Administrator argues that since this is a case of clear

violation that his hands are tied and he must order im-

mediate compliance. But that is simply not so. It is not

what the statute, supra, provides for. The statute says

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that after you have a violation then the Administrator must

still fix a reasonable compliance schedule (not immediate

compliance); that the Administrator must consider the

seriousness of the violation and that he must consider the

good faith efforts to comply. The statute grants the Ad-

ministrator discretion to grant a violator future time to

comply where the violation is not serious in its effect on

the public and where the violator is making and has made

good faith efforts to comply.

The Administrator would have the Court believe that

Regulation VIII absolutely ties his hands. But that it is not

how the Administrator acted in the Allied case. (Pet. A54-

58). The Administrator in his Answering Brief ignores

Allied, and with reason. Allied was denied a variance in

the same opinion as was Getty by Delaware’s Secretary of

Natural Resources and Environmental Control. (Appel-

lant’s Appendix, Court of Apps., Swayze Aff., Ex. D., p.

68a). Allied was in clear violation of a regulation that be-

came effective on the same date as the regulation involved

here. Allied exists in the same ambient air as Getty, New

Castle County, Delaware, yet Allied was granted a 20%

month extension from January 1, 1972 under 42 USC

§ 1857c-8(a)(4). If the Administrator’s discretion could be

granted in favor of Allied, why not Getty? The Govern-

ment’s brief is silent on this point. Indeed at the argument

before the Court of Appeals, the Government’s attorneys

claimed to know nothing about the Allied matter at all.

The Government’s brief asserts that since many of

the arguments we advance under 42 USC § 1857c-8(a) (4)

could also have been advanced in a $307 petition that the

Administrator’s exercise of discretion under §1857c-

8(a)(4) is non-reviewable. This is a non sequitur. How

could the exercise of his discretion have been reviewed by

the Court of Appeals before he had exercised it?

2 Reply Brief

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Reply Brief 3

The Government’s reliance on cases under the Motor :

Vehicle Safety Act (GB p. 10, n. 6) is inapt. As the District ‘

Court observed, the Clean Air Act is not similar to the

Motor Vehicle Safety Act. (Pet. A17 n. 10). The Clean Air e

Act does not set up nationwide regulations of general ap-

plication. Rather, within certain guidelines it delegates to

each state the responsibility to develop and handcraft for

its region its own plan and regulations, and the emphasis is

on flexibility. A reading of the Clean Air Act reveals the

many opportunities for changes and adjustments in what

is admittedly a complicated field. One avenue for adjust- 4

ment is the state variance procedure which Getty pursued.

Another opportunity for flexibility based on the stated

criteria of the seriousness of the violation and good faith

efforts to comply is provided for by § 1857c-8(a) (4).

2). The Administrator similarly avoids reference to

Abbott Laboratories v. Gardner, 387 U. S. 136, 87 S. Ct.

1057, 18 L. Ed. 2d 681 (1967). Once the Administrator’s

discretion becomes apparent as it must upon analysis of

§ 1857¢-8(a) (4), jurisdiction follows under the Administra-

tive Procedure Act as interpreted by Abbott and others, as

the District Court held (Pet. A13-21). Moreover, an inde-

pendent basis of jurisdiction clearly exists under NEPA.

In addition to the cases cited in our Petition (Pet. p. 16) on

this point, Judge Winner recently reached the same conclu-

sion in Anaconda v. Ruckelshaus, 4 ERC 940 (D. Colo. Dec.

18, 1972).

3). The Administrator’s treatment of our claim to a

due process hearing is similarly cavalier. Like the Court

of Appeals, he fails to explain where we could have received

a hearing on the exercise of the Administrator’s discretion

under § 1857c-8(a)(4). He fails to cite facts supporting a

a sinceitsanianeasoincenitl

4 Reply Brief

compelling public interest in summary enforcement on the

particularized facts of this case. Both the District Court

and Court of Appeals recognized the absence of any such

interest by staying enforcement pending judicial review.

This stay remains in effect. Further, the Administrator

asserts that if such a hearing were held, Petitioner would

not prevail. Plainly the record in this case does not sup-

port such an assertion in view of the undisputed testimony

concerning the high quality of the air and the tremendous

economic impact without any corresponding public benefit.

Surely this is not a frivolous challenge of the kind the Gov-

ernment refers to at GB p. 14. However, a party’s right to

a due process hearing is not dependent upon a showing that

he will prevail. Coe v. Armour Fertilizer Works, 237 U.S.

413 at 424, 59 L. Ed. 1027 at 1031-32, 35 S. Ct. 625 (1915)

and Fuentes, et al. v. Shevin, et al., and Parham, et al. v.

Cortese, et al., — U. S. —, 32 L. Ed. 2d 556, 92 S. Ct. —

(1972).

4). The Administrator’s answer to the attack on his

failure to prepare and circulate an environmental impact

statement (GB p. 14 n.9) is singularly without case or

legislative support. He fails to comment on the large

number of decisions interpreting NEPA in accordance with

its clear language, to mean that every federal agency must

prepare impact statements where applicable. Since our

Petition was filed, several recent cases have been decided

which further strengthen our position and conflict with the

Third Circuit’s opinion in this case. We refer to Anaconda

v. Ruckelshaus, supra, which held that NEPA was ap-

plicable to the EPA at the rule making stage and to Morton

v. Davis, 4 ERC 1735 (10th Cir. Nov. 24, 1972) which held

NEPA was applicable to the Department of Interior’s ap-

proval of the Pueblo Indian tribe’s lease of Indian land

to a commercial developer. Using an argument which has

Reply Brief 5

become increasingly popular with government agencies, the

Bureau of Indian Affairs contended that Congress never

intended that the Bureau be included under NEPA. The

Court of Appeals rejected this contention noting that

NEPA ‘‘directs all agencies to present a detailed statement

on the environmental impact of the proposed action.’’ Ibid.

at 1736. The Court held, ‘‘{A]s our Court had occasion

to consider once before, this Act [NEPA] was intended to

include all federal agencies, including the Bureau of Indian

Affairs.’’ Ibid. at 1738. The Court of Appeals then ad-

dressed the narrower contention that the provision of 25

USC § 415 that ‘‘. . . the Secretary of the Interior shall

first satisfy himself that adequate consideration has been

given to . . . the effect on the environment of the uses

to which the lease land will be subject’? was intended by

Congress to supplant NEPA. The lower court held that

NEPA did not apply to Indian lands or otherwise 25 USC

§415 would not have addressed the problem of environ-

mental concerns. The Court of Appeals found this con-

clusion to be erroneous. The Court of Appeals in reversing

the findings of the lower court held that, ‘‘unless the obliga-

tions of another statute are clearly mutually exclusive with

the mandates of NEPA, the specific requirements of NEPA

will remain in force.’’ Ibid. at 1738.

Indeed there can be little doubt, that Congress did

not intend the EPA to be exempt from the provisions

of NEPA under the Clean Air Act in light of the specific

exemption contained in the Federal Water Pollution Con-

trol Act Amendments of 1972, 86 Stat. 816, Ԥ511, which

exempts only the EPA’s activities under that Act. The

EPA sought a general exemption from Congress and failed

to get it. The fact that Congress included an exemption

in the Water Act and not in the Clean Air Act is indicative

of Congress’s intention that the activities of the EPA under

the Clean Air Act be subject to NEPA’s requirements and

Anaconda v. Ruckelshaus, supra, so holds.

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6 Reply Brief

For the reasons stated in the Petition for a Writ of

Certiorari and herein, it is respectfully submitted that the

Petition should be granted.

Respectfully submitted,

Cuar.es F. Ricnarps, Jr.,

Davip 8S. Swayze,

Ricuarps, Layton & Fixcer,

4072 DuPont Building,

Wilmington, Delaware. 19899

Attorneys for Petitioner,

Getty Ou Company

(Eastern Operations), Inc.