Opposition Brief — New Jersey Citizens for Clean Air, Inc. v. New Jersey Sports & Exposition Authority

Agere.

SUPREME Coune uw 2030

SEP 19 1973

MICHAEL RODAK, JR.,CLERK

IN THE

Supreme Court of the Uniteh States

OcTOBER Tam, 1973

23°

No. 236

7

NEW JERSEY CITIZENS FOR CLEAN AIR, INC,

et al.,

Petitioners,

vs.

NEW JERSEY SPORTS AND EXPOSITION

AUTHORITY,

Respondent.

_———

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

4

eee ;

:

James C. Prryey, “

Joun W. BIssELL, F

Attorneys for Respondent.

Of Counsel:

Prrney, Harpin & Kip,

570 Broad Street,

Newark, New Jersey, 07102.

ee EE ET ETT ET

Adams Press Corp., 11 Commerce Street, Newark, N. J.—Market 3-8611-12

ENTS 2 ,

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TABLE OF CONTENTS

Opinions BELOW

JURISDICTION

QuEsTIONS PRESENTED

STATUTES AND RecuiaTions INVOLVED

STATEMENT OF THE CASE

Reasons ror DENYING THE PETITION

I—Plaintiffs’ Rights Under the Clean Air Act Re-

main Unimpaired By the Proceedings Below ..

II—The Proceedings Below Did Not Involve The

Validity of New Jersey’s Implementation Plan

Under the Clean Air Act

I1i—The Complex Source Regulations Were Not

Proposed Until After the Opinion Below, Have

Not Yet Been Implemented, And Can Have

No Bearing On These Proceedings ....................

LEAR IO ee LRA PE Le BE YN

Certificate of Service

wee enn en cee w ew wee ence e cess wecesseccesscesoss

APPENDIX:

A—Letter from United States Environmental

Protection Agency to Frederick C. Mezey,

dated August 16, 1973

B—Opinion and Order of the United States

District Court, District of New Jersey,

Marianne Wuillamey, et al. v. David A.

IL, PP II bicazenceininensnemeabanieenmescmtadsamamee

11

13

15

16

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TABLE OF CONTENTS

PAGE

C—Natural Resources Defense Council, Inc. v.

Environmental Protection Agency, Order of

March 12, 1973 12a

D—Natural Resources Defense Council, Inc. v.

Environmental Protection Agency, Order of

July 26, 1973 17a

Cases Cited

Natural Resources Defense Council, Inc. v. Environ-

mental Protection Agency, 475 F. 2d 968 (D. C.

Cir. 1973) 12

New Jersey Sports and Exposition Authority v. Me-

Crane, 61 N. J. 1, 292 A. 2d 545 (1972), appeal dis-

missed 409 U. S. 943 (1972) 2,4

Sierra Club v. Morton, 405 U. S. 727 (1972)...-..—..W... 9

Sports Complex Hackensack Meadowlands, In re,

62 N. J. 248, 300 A. 2d 337 (1973) 1, 6,8

The Anaconda Company v. Ruckelshaus, —— F. 2d

— (10th Cir., August 8, 1973) 13

Statutes Cited

Clean Air Act:

Sec. 109 6

See. 110 3, 11

See. 304 . 8,11

See. 307 3

N.J.S.A. 5:10-1 et seq. (New Jersey Sports and Ex-

position Authority Law) 2

TABLE OF CONTENTS

N.J.S.A. 5:10-6 a

N.J.S.A. 5:10-6 b., 9, 10

N.IS.A, 5:10-28 ... 4

28 US.C.: ‘

See. 1257(3) t

42 U.S.C.A.:

Sec. 1857¢-4 ;

Oe NE ee

See. 1857e-5(e) (1) 12 :

Sec, 1857¢-8 8,10 E

See 1857h-2 3,10

See. 1857h-2(a) rr

See. 1857h-5(b) (1) nn 3,13

Rules Cited

Federal Rules of Civil Procedure: ‘

12(b) 10 (

Rules Governing the Courts of the State of New

Jersey):

eee i vam at enone es eee ; 8

Regulations Cited

36 Fed. Reg. 8186 (1971) 11

37 Fed. Reg. 10842 >) ras ii .

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iv TABLE OF CONTENTS

PAGE

38 Fed. Reg.:

6279-6280 14

9599 14

15834 (1973) 14

15834-15835 14

15834, 15836 15

17782, 17790 (July 3, 1973) 11-13

17787 (1973) 13

21505 (Aug. 9, 1973) 13

40 C.F.R.:

50.1 6, 11

50.8 7

IN THE

Supreme Court of the United States

OctosER TERM 1973

No. 236

>

—~

NEW JERSEY CITIZENS FOR CLEAN AIR, INC.,

et al.,

Petitioners,

vs.

NEW JERSEY SPORTS AND EXPOSITION

AUTHORITY,

Respondent.

ys

>

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Opinions Below

The opinion of the New Jersey Supreme Court affirm-

ing the state administrative agency hearing involved is

reported in In re Sports Complex Hackensack Meadow-

lands, 62 N. J. 248, 300 A. 2d 337 (1973). The opinion

directing the hearing and defining its scope is reported in

RSPAS LS LIFELESS ee LEN TRIN COM eM Ne eee IAS.

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2

New Jersey Sports and Exposition Authority v. McCrane,

61 N. J. 1, 292 A. 2d 545 (1972), appeal dismissed 409

U. 8. 943 (1972). This latter opinion upheld the consti-

tutionality of the New Jersey Sports and Exposition

Authority Law. N.J.S.A. § 5:10-1 et seq.

Jurisdiction

The Petitioner purports to predicate jurisdiction upon

98 U.S.C. §1257(3).

Questions Presented

1. Whether this Court should review the affirmance by

the highest court of the State of a factual determination

by State administrative agencies made pursuant to a

State statute of limited application?

9. Whether this Court should entertain a Petition

which seeks to invoke as the basis for this Court’s jur-

isdiction Federal Regulations which were not even pro-

posed until after the determination by the Supreme Court

of New Jersey, did not become effective until after the

filing of the Petition with this Court, and have not yet

been implemented in accordance with their terms?

Statutes and Regulations Involved

The statutes and regulations primarily involved in

these proceedings are the following:

1. Section 23 of the New Jersey Sports and Ex-

position Authority Law. NJ.S.A. § 5:10-23.

SETTER

3

2. Sections 110, 304 and 307 of the Clean Air

Act. 42 U.S.C. §§ 1857c-5, 1857-2 and 1857-5.

3. The “Complex Source” regulations promul-

gated pursuant to the Clean Air Act, 38 Fed. Reg.

15834 (1973), on June 18, 1973.

Statement of the Case

This case was previously before this Court on a prior

appeal from the Supreme Court of New Jersey which

was dismissed for want of a substantial federal question.

In the prior proceedings the Supreme Court of New Jer-

sey had upheld the constitutionality of the New Jersey

Sports and Exposition Authority Law. This law created

the New Jersey Sports and Exposition Authority (here-

in referred to as “the Authority”), a public body corpo-

rate and politic empowered to build a sports complex in

the Hackensack Meadowlands in the State of New Jersey.

N.J.S.A. 5:10-6 a. The Authority is authorized to issue

revenue bonds for its public purposes and is given the

right of eminent domain. N.J.S.A. 5:10-6 b., 9 and 10.

One section of the statute is pertinent to the present

Petition:

“It is the express intent of the Legislature that

the authority in undertaking the meadowlands com-

plex shall consult with the Meadowlands Commis-

sion and the Department of Environmental Protec-

tion* with respect to the ecological factors consti-

tuting the environment of the Hackensack meadow-

lands to the end that the delicate environmental

balance of the Hackensack meadowlands be main-

tained and preserved.” (N.J.S.A. 5:10-23).

* Herein referred to simply as the Hearing Agencies.

ATS Pee

4

The Supreme Court of New Jersey construed this stat-

ute in New Jersey Sports and Exposition Authority v.

McCrane, supra, 61 N. J. at 32-33, 292 A. 2d at 561:

“In view of the legislative history and particu-

larly the strong language of section 23, we are

unanimously of the view that an obligation has

been imposed upon the Authority to present its

proposal for site location to the Meadowlands

Commission and the Department of Environmental

Protection, and seek their opinion that in using

such site the ‘delicate environmental balance of

the Hackensack meadowlands may be maintained

and preserved.’ This presentation should be made

after public notice of the time and place thereof,

and actual notice to the parties to the present ac-

: tion, At such time the Authority and all interested

: persons should be permitted to present their views

on the subject. Although section 23 speaks of the

Meadowlands Commission and the Department of

Environmental Protection, we see no reason why

; the presentation could not be made to both agen-

: cies at the same time. In our view the full record

; should be and ean be made expeditiously at that

time, to the end that if any further review is

sought it may be heard and disposed of upon that

4 record.”

: The hearing which is the subject of this Petition thus

3 was held solely pursuant to Section 23 of the New Jersey

4 Sports and Exposition Authority Law. It was not held

z pursuant to any other statute or regulation, state or fed-

i eral. The hearing, which commenced on July 10, 1972

@ and continued daily for an uninterrupted period of five

3 weeks until it was concluded on August 11, 1972, covered

4

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5

a wide range of environmental matters (all scientific and

factual in nature) including the following:

1.

2.

15.

16.

17.

18.

19.

The ecology of the Hackensack Meadowlands Re-

gion;

The location of the proposed Sports Complex with-

in the Meadowlands;

3. Alternative sites considered;

4. Land form and geology of the area;

5. Vegetation of the area;

6. Wildlife of the area;

7. Water quality in the area;

8. The site plan;

9. The proposed site work;

10.

11

12

13

14

Availability of electric energy;

. Availability of an adequate potable water supply;

. Availability of adequate sanitary sewage capacity ;

. Storm water runoff;

. Disposal of solid wastes generated by the Sports

Complex;

Disposition of excavated material unsuitable for

foundations ;

Volume and source of fill to be used during con-

struction;

Noise pollution;

Traffic; and

Air quality.

It is not Respondent’s intention to comment upon the

voluminous factual record which was made before the

Hearing Agencies during the 25 days of hearings, nor

upon Petitioners’ inaccurate and sometimes misleading

characterization of the facts since they are largely ir-

relevant to a determination of this Petition.

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On September 25, 1972, the Hearing Agencies issued

their findings (Pet. App. 9449-261a).* With regard to air

pollution the Hearing Agencies specifically determined

that it was unlikely that any of the federal ambient air

quality standards (40 C.F.R. 50.1 et seq.) promulgated

pursuant to Section 109 of the Clean Air Act (42 U.S.C.A.

§1857¢-4) would be violated when the sports complex be-

comes operational in 1975, and measures were included

in their decision to insure that they would not be. (Pet.

App. 260a-262a). These findings were accepted and adopted

by the Commissioner of the Department of Environmental

Protection and the Chairman of the Hackensack Meadow-

lands Development Commission (Pet. App. 262a-263a).

On appeal to the Supreme Court of New Jersey, that

Court concluded that “the kind of hearing we suggested

was held”, and affirmed the determination of the Hearing

Agencies. In re Sports Complex Hackensack Meadow-

lands, 62 N. J. 248, 300 A. 2d 337 (1973). In its opinion

the Supreme Court made the following comments with

regard to the questions raised by Petitioners as to air

pollution:

“A considerable part of the hearing was con-

cerned with projections of the impact of the com-

plex on air quality from the broad point of view

of the public health. While the statutory obligation

imposed on the Authority to consult with the named

agencies was concerned only with the ‘delicate en-

vironmental balance’ of the meadowlands, our re-

mand was sufficiently comprehensive to include the

broader issue and the hearing agencies rightly con-

cerned themselves with it.

* References are to the Petitioners’ Appendix.

PEER NLEOI

7

«“* * * Tt is also argued that projections of air

pollution emanating from the completed project in-

dicate that standards established under the Federal

Clean Air Act (42 U.S.C.A. §1857, et seq.) will be

violated and will result in a denial of due process

and equal protection, as well as infringe on the

implicit constitutional right to a healthful en- g

vironment. As a corollary, the argument is made

:

that it is beyond the police power of the State to

allow the construction of a project demonstrably -

dangerous to the public health.

“These contentions lack validity. It has not been

demonstrated that the complex will be dangerous

to the public health. Careful consideration was

given to the question of air pollution. The record

indicated that on-site facility emissions from the

complex will be of minor significance on air qual- :

ity and that the real concern was with motor

vehicle emissions.

We hee Tees

nag Br a

“The hearing agencies found that the complex °

will not interfere with the State of New Jersey :

achieving the national ambient air quality stand-

ards for sulphur dioxide, particulates, and oxidents

(since oxident standards will be achieved by 1975

the hydrocarbon standard does not apply). It was

also found that under conditions of extreme atmo-

spherie stagnation and high football activity, motor

vehicles in the complex could conceivably cause the

national standard for carbon monoxide to be ex-

ceeded, but not more than once per season.* As

* The national standard for carbon monoxide is 35 ppm.

to be exceeded more than once per year.” (40 C.F.R. 50.8).

“ec

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heretofore noted, the approval given the site and

proposed use calls for establishment of a monitor-

ing system to detect air pollution with alternative

specifies to achieve and maintain acceptable air

quality.

“Actually, it is highly speculative to try and

estimate air pollution in 1975 when the project will

have completed its race track, football stadium and

parking area, or in 1990 when the entire complex

is scheduled for completion. There are too many

variables in the overall picture.” 62 N. J. at 253-55,

300 A. 2d at 340. (Emphasis added).

The Supreme Court of New Jersey then went on to

point out that “certainly the Sports Authority will be sub-

ject to the Clean Air Act,” that in the development and

operation of the sports and exposition complex the Au-

thority must conform to federal standards, and that the

“act empowers the Federal Administrator to bring suit

directly in the federal court to restrain air pollution in

violation of the established standards should any state

fail to enforce its implementation plan effectively.” 62

N. J. at 255, 300 A. 2d at 340-1; 42 U.S.C. §1857e-8.

The Supreme Court of New Jersey rendered its deci-

sion on February 5, 1973, and on February 15, 1973 Peti-

tioners filed a Petition for Rehearing which was denied

on March 6, 1973. On March 19, 1973 they filed a “Re-

petition for Rehearing”. This is a paper which does not

exist under New Jersey appellate practice and if con-

sidered merely as a Petition for Rehearing was out of

time. (Rule 2:11-6 of Rules Governing the Courts of the

State of New Jersey). The Repetition for Rehearing was

likewise denied on May 2, 1973. As will hereinafter ap-

pear both the Petition and the Repetition raised new

iaeiin, as

9

matters not previously considered which are now being

asserted as the basis for the Petition for Writ of Cer-

tiorari filed with this Court.

Reasons for Denying the Petition

What is basically involved in the Petition before this

Court is a factual determination by state administrative

agencies made solely pursuant to a state statute of lim-

ited application, and the Scope of judicial review thereof —

as a matter of state law. The hearing was not held pur-

suant to the Federal Clean Air Act; it did not involve

the validity of a state implementation plan promulgated

under that Act; and it did not affect or impair plaintiff's

rights under that Act. Under the circumstances the Peti-

tion should be dismissed for want of a substantial fed-

eral question.

I.

Plaintiffs’ Rights Under The Clean Air Act Remain

Unimpaired By The Proceedings Below

It is perhaps significant that Petitioners fail to define

with precision what rights under the Clean Air Act were

denied them or their members* in the proceedings below, 4

and what sections of that statute define those rights.

Since the sports complex will not be completed for several 7

years Petitioners cannot complain of the present violation

of any rights. The Supreme Court of New Jersey was 4

* It is submitted that as alleged environmental groups the Peti-

tioners have no rights separate from the rights of their members 4

which they have standing to assert in any event under the Clean 3

Air Act. Sierra Club v. Morton, 405 U.S. 727 (1972). e

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10

careful to point out that “the Sports Authority will be

subject to the Clean Air Act” and that “in the develop-

ment and operation of the sports and exposition complex

the Authority must conform to” the federal ambient air

quality standards. If the Authority should fail to comply

with those standards (or with any other requirement of

the Clean Air Act) in the future, Petitioners’ remedy lies

in the citizens’ suit provisions (Section 304) of that Act

to protect those rights. (42 U.S.C.A. §1857h-2).

The speculative nature of Petitioners’ position in these

proceedings is illustrated by their reference to “two ac-

tions presently pending which could have a substantial

effect on this case and petitioners’ rights thereunder.”

(Pet. 23). The first, Marianne Wuillamey et al. v. David

A. Werblin, et al., was a suit instituted in the United

States District Court for the District of New Jersey on

July 26, 1973 to enjoin construction of the sports complex.

The plaintiffs were the President and the Chairmen of

three of the alleged environmental groups which are Peti-

tioners before this Court (Pet. App. 319a). That suit was

dismissed on August 28, 1973 under Rule 12(b) of the Fed-

eral Rules of Civil Procedure for failure to state a claim

upon which relief can be granted, the court observing that

“the completed Complex will of course have to comply

with whatever final pollution standards are promulgated

under the authority of the Clean Air Act,” and that an

estimate of possible air pollution generated by the Com-

plex in 1975 after it is completed “is, at best, highly specu-

lative.” (Resp. App. 3a, 7a, 9a). The second was a letter

sent by Petitioners on July 26, 1973 to the Administrator

of the Environmental Protection Agency demanding that

he proceed pursuant to 42 U.S.C.A. §1857c¢-8 to prevent

construction of the Authority’s parking facilities which

were alleged to be in violation of the transportation con-

trol plan “imposed” on the State of New Jersey by the

oes: neh rcpoeecen

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11

Administrator (Pet. App. 315a). The Administrator quite

properly pointed out in his reply dated August 16, 1973

that the parking lot construction review provision upon

which Petitioners relied was really only “a notice of pro-

posed rulemaking, pursuant to Section 110(¢) of the Clean

Air Act,” and that final regulations would be promulgated

by October 15, 1973, citing 38 Fed. Reg. 17782, 17790 (July

3, 1973). He also pointed out that Petitioners’ remedy, as

provided by Section 304 of the Clean Air Act, is a suit

against one who is alleged “to be in violation” of an emis-

sion standard under the Act. 42 U.S.C.A. §1857h-2(a)

(Resp. App. la). Petitioners do of course concede that

the sports complex (which will not be completed for sev-

eral years) is not presently in violation.

The Proceedings Below Did Not Involve The Valid-

ity Of New Jersey’s Implementation Plan Under The

Clean Air Act

Section 110 of the Clean Air Act prescribes the admin-

istrative procedure for the promulgation and adoption of

plans for the implementation, maintenance, and enforce-

ment of the federal ambient air quality standards within

each State. 42 U.S.C.A. §1857e-5. The portions of the Act

which are here pertinent became effective on December 31,

1970 and required each state to prepare a plan for imple-

menting federal ambient air quality standards to be prom-

ulgated by the Administrator of the Environmental Pro-

tection Ageucy. 42 U.S.C.A. §$1857e-4, 1857-5. The Ad-

ministrator promulgated these standards on April 30, 1971.

36 Fed. Reg. 8186 (1971); 40 C.F.R. 50.1 et seq.

New Jersey’s implementation plan was timely submitted

to the Administrator on January 26, 1972. 38 Fed. Reg.

TEE AIT RS BEBE TS POS OW Ta tats TOP Te eee eee en eas is in ve ~

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12

17782 (1973). At that time, as permitted by the Act,

§1857¢-5(e)(1), a number of States (including New Jer-

sey) requested extensions of time to comply with certain

of the standards. On May 31, 1972 the Administrator ap-

proved New Jersey’s plan, granting the extensions as re-

quested. 37 Fed. Reg. 10842 (1972).

Contrary to the suggestion of the Petitioners (Pet. 10,

16, 17) the validity of New J ersey’s implementation plan

was in no way involved in the proceedings below which

was not the proper forum in which to contest validity in

any event (as will hereinafter appear). Indeed it was not

until after the Supreme Court of New Jersey had ren-

dered its decision on February 5, 1973 that the Petitioners

asserted for the first time in their Petition for Rehearing

filed February 15, 1973 that New Jersey’s implementation

plan was invalid (Pet. App. 273a et seq.). The basis for

this assertion was unrelated to the sports complex. It was

a case decided fifteen days before by the United States

Court of Appeals for the District of Columbia. Natural

Resources Defense Council, Inc. v. Environmental Protec-

tion Agency, 475 F. 2d 968 (D. C. Cir. 1973). In that case

the Court of Appeals decided that the Administrator had

erred in granting extensions to the several states. In or-

dering those extensions rescinded the Court carefully pre-

scribed procedures to implement its decision. Those pro-

cedures have been and are being carefully followed under

the close scrutiny of the Court of Appeals (Resp. App.

12a-18a). In the case of New Jersey the Administrator

proposed an implementation plan for the State on July 3,

1973. 38 Fed. Reg. 17782.* The plan was to have become

* It is intimated in the Petition (p. 19) that the Sports Authority

was delinquent in failing to obtain a permit to build a new park-

ing facility in the sports complex. However, as indicated above,

the transportation control plan of which these provisions covering

new parking facilities are but a part is only proposed by the Ad-

ministrator.

sinidessiegie

13

effective on August 15, 1973, after a series of public hear-

ings and opportunity to submit written comments, which it

was acknowledged “may lead the Administrator to adopt

final regulations that differ in important ways from this

proposal.” 38 Fed. Reg. 17782, 17787, (1973).

The Court of Appeals for the District of Columbia,

however, has recently granted the Administrator’s re-

quest that the deadline for promulgation of all such

plans be extended to October 15, 1973. 38 Fed. Reg.

21505 (Aug. 9, 1973). When New Jersey’s implementa-

tion plan is ultimately adopted (and in whatever form),

Petitioners’ sole right of review will lie in the United

States Court of Appeals for the Third Circuit. 42 U.S.

C.A. §1857h-5(b)(1); The Anaconda Company v. Ruck-

elshaus, —— F. 2d —— (10th Cir., August 8, 1973). That

right of review was not impaired by the proceedings be-

low.

The Complex Source Regulations Were Not Pro-

posed Until After The Opinion Below, Have Not Yet

Been Implemented, And Can Have No Bearing On

These Proceedings

Throughout the Petition it is intimated that the federal

“Complex Source” regulations and the review procedures

which remain to be prescribed thereunder have some

bearing on the proceedings below. (Pet. 3, 11, 14, 18, 21,

22, 24, 25, 27, 29, 34). Petitioners first attempted to in-

ject these regulations into this case in their “Repetition

for Rehearing” filed out of time over a month after

the decision of the New Jersey Supreme Court. The

Repetition was filed on March 19, 1973 “on the basis of a

SAAS PRLS, Ne - f

14

new regulation issued on March 8, 1973” according to

Petitioners. (Pet. App. 289a). Actually this statement was

somewhat misleading. What was involved was not in

fact a new regulation, but an announcement by the Ad-

ministrator of the Environmental Protection Agency of

his intention to draft a new regulation governing the con-

struction of facilities (“Complex Source”) which may re-

sult in increased emissions from motor vehicle activity.

The announcement indicated that the regulation would

“further provide that each State must have procedures

whereby, prior to construction or modification of such

sources, the State will be able to determine whether the

construction or modification of the complex source would

cause violations of a control strategy or interfere with

the attainment or maintenance of the national ambient

air standards.” 38 Fed. Reg. 6279-80.

Following this advance notice, the proposed regulations

were published on April 18, 1973. 38 Fed. Reg. 9599. On

June 18, 1973 the “Complex Source” regulations as fin-

ally adopted were promulgated. 38 Fed. Reg. 15834

(1973).

It is clear that these new regulations as promulgated

have yet to be implemented, and as such have no inde-

pendent force or effect even today. Under the terms

thereof all States were required to submit revisions of

their implementation plans to comply with the new re-

quirements involving procedural review of new “Complex

Sources”, no later than August 15, 1973. After submis-

sion the Environmental Protection Agency has two

months (until October 15, 1973) to review and approve

or disapprove the revisions and an additional two months

(until December 15, 1973) to propose and promulgate reg-

ulations to replace any disapproved State procedures. 38

Fed. Reg. 15834-5.

15

We are not aware that “Complex Source” review pro-

cedures have been approved as yet by the Environmental

Protection Agency for any of the 50 states (including

New Jersey). Although it may be conceded that the reg-

ulations contemplate some uniformity in these review pro-

cedures (38 Fed. Reg. 15834, 36), it is difficult to conceive

how such review procedures can be applied (when they

are finally promulgated and approved) to an administra-

tive hearing which was sheld over a year before their ©

adoption (as Petitioners apparently are suggesting in

Points I and II of their Petition).

CONCLUSION

For the foregoing reasons it is respectfully sub-

mitted that the Petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

James C. Pitney,

JoHN W. BIssELL,

Attorneys for Respondent.

Of Counsel:

Pitney, Harpixn & Kipp,

570 Broad Street,

Newark, New Jersey, 07102.

16

Certificate of Service

I, James C. Pirvey, a member of the Bar of the Su-

preme Court of the United States, hereby certify that

on this 19th day of September, 1973, three copies of Re-

spondent’s Brief in Opposition to Petition for Writ of

Certiorari were served by first class mail, postage pre-

paid, on the following attorneys:

Frederick C. Mezey, Esq.,

Mezey & Mezey,

93 Bayard Street,

New Brunswick, New Jersey 08901.

Ralph W. Chandless, Esq.,

Chandless, Weller & Kramer,

84 Main Street,

Hackensack, New Jersey 07601.

Malcolm S. Zlotkin, Esq.,

Shackleton & Kelly,

Lacy Road at Route 9,

Forked River, New Jersey 08731.

I further certify that all parties required to be served

have been served.

James C. PITNEY,

570 Broad Street,

Newark, New Jersey 07102,

Attorney for Respondent.

APPENDIX A

Letter from United States Environmental Protection

Agency to Frederick C. Mezey, dated August 16, 1973

Unitep States ENVIRONMENTAL PROTECTION AGENCY

Wasuincton D. C. 20460

August 16, 1973

Office of

Enforcement and General Counsel

Mr. Frederick C. Mezey

Mezey and Mezey

Counsellors at Law

93 Bayard Street

New Brunswick, New Jersey 08903

Re: No. 5606

Dear Mr. Mezey:

The Administrator has asked me to reply to your letter

of July 26, 1973.

The parking lot construction review regulation to which

you refer in your letter was not “imposed” on the State of

New Jersey on June 22, 1973. Rather, it constituted a no-

tice of proposed rulemaking, pursuant to Section 110(c)

of the Clean Air Act, 38 Fed. Reg. 17782, 17790 (July 3

1973). Final regulations on transportation controls will

be promulgated by October 15, 1973.

In addition, because enforcement of an implementation

plan by the Environmental Protection Agency falls within

the category of prosecutional discretion, it is our opinion

[1a]

2a,

‘Appendia A

that non-enforcement in a particular instance does not

constitute a non-discretionary duty of the Administrator

under Section 304 of the Act. The appropriate use of

Section 304 in such situations is to commence @ civil ac-

tion against the alleged violator of the implementation

plan.

Sincerely,

Rosert L. Baum

Associate General Counsel

Air Quality and Radiation

Division

ee: Mr. Gerald M. Hansler, Regional Administrator

Mr. Martin Green, Department of Justice

3a

APPENDIX B

Opinion and Order of the United States District Court,

District of New Jersey, Marianne Wuillamey, et al. v.

David A. Werblin, et al.

Unitep States District Court

District or New JERSEY

e

=

—

Marianne WouriwaMey, Barsara Eister and James Draco,

Plaintiffs,

v.

Davi A. Wersiin and Ricuarp J. SULLIVAN

Defendants.

+

Crvm Action No. 1099-73

Appearances: ;

Mezey & Mezey, Esqs. :

By: Frepertck C. Mezey, Esq. :

Attorneys for Plaintiffs

Pitney, Harpin & Kipp é

By: James C. Pitney, Esq. §

Attorneys for Defendant David A. Werblin 3

Josepu M. Crayton, Jr., Deputy Attorney General ;

Attorney for Defendant Richard J. Sullivan '

Cootanan, District Judge: :

This is a suit brought by certain individuals and en- ®

vironmental organizations, on behalf of themselves and 3

é,

i

“s ws ¢ |

4a

Appendix B

those similarly situated, seeking an injunction under Fed.

R. Civ. Pro. 65 against construction of the Hackensack

Meadowlands Sports Complex authorized under the New

Jersey Sports and Exposition Authority Law, N.J.S.A.

5:10-1 et seq. Plaintiffs also seek a judgment to the ef-

fect that the New Jersey statute is fatally inconsistent

with the Clean Air Act, 42 US.C. § 1857 et seq., and must

therefore be enjoined under the Supremacy Clause. Gib-

bons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).

Federal jurisdiction is based on the claim that the state

statute conflicts with a federal statute which, by virtue of

the Supremacy Clause, is controlling. As stated in Swift

& Company v. Wickham, 389 U. S. 111 (1965) at 127,

“« . . eases of conflict [of a state statute] with a fed-

eral statute . . . follow their normal course in a single-

judge [federal district] court.” Other bases alleged for

jurisdiction of this court are 28 U.S.C. § 1331 (federal

1 Among the environmental and conservationist organizations are

New Jersey Citizens for Clean Air, Inc. (whose president is plain-

tiff Eisler), Hoboken Environment Committee, Hudson River Fish-

erman’s Association, Weehauken Environment Committee, C.A.P.

A.B.LE., Save the Palisades Association (chairman Drago), Citi-

zens Committee of Hudson County, and the Hudson County Citi-

zens for Clean Air.

Defendant Werblin is the Chairman of the New Jersey Sports

and Exposition Authority. Defendant Sullivan is the Commission-

er of the New Jersey Department of Environmental Protection.

This Opinion will not address the question of whether this ac-

tion is, or can be brought under Fed. R. Civ. Pro. 23 as a class

action.

5a

Appendiz B

question) and 42 U.S.C. § 1857h-2(a) (establishment of

citizen’s right to bring suit under the Clean Air Act).?

No party to this proceeding has addressed the question

of whether these particular plaintiffs, as individuals, pos-

sess the requisite standing to bring suit. For a plaintiff

to possess standing, there must be claimed injury to a

legally protected interest, t.e., “... a wrong which direct-

ly results in the violation of a “legal right.” Alabama

Power Company v. Ickes, 302 U. S. 464, 479 (1938). Al-

though the parties’ contentions concern themselves almost

exclusively with air pollution, there apparently does not

as yet exist a legally protected interest, per se, in main-

taining pollution-free air. That these plaintiffs, as indi-

viduals, do possess sufficient standing to secure this court

as a proper forum can, however, be descried from a read-

ing of the policy and purposes of the Clean Air Act it-

self. As stated in 42 U.S.C. § 1857(a)(2), “... the growth

in the amount and complexity of air pollution brought

about by ... the increasing use of motor vehicles, has re-

sulted in mounting dangers to the public health and wel-

fare...” And in 42 U.S.C. § 1857(b)(1) it is stated that

the purposes of the Clean Air Act include protection and

enhancement of “. . . the quality of the Nation’s air re-

sources so as to promote the public health and welfare

and the productive capacity of its population.” Enact-

2 The court finds that jurisdiction does not lie under 42 U.S.C.

§ 1857h-2(a), as that section pertains only to an action brought

“... to enforce . . . an emission standard or limitation . . .,” and

to an action in the nature of mandamus against the Administrator

of the federal Environmental Protection Agency. Because no final

standard or limitation exists, none can be enforced. And the Ad-

ministrator has not been named as a party-defendant in the pres-

ent proceedings.

a

Ps

*

4

Eee Re apes Pe

: .

,

einai

6a,

Appendix B

ment of the Clean Air Act into law was plainly intended

to protect the health and welfare of, among others, these

plaintiffs, who are citizens and inhabitants of the United

States. The impairment of the plaintiffs’ health that is

alleged to be a probable deleterious consequence of con-

struction of the Sports Complex constitutes a sufficiently

grave invasion of a legally protected interest to confer

standing.

The Sports Complex is currently planned to comprise a

large stadium and a race track. The stadium alone is to

have a capacity of around 75,000 persons, and parking is

to be provided for about 25,000 motor vehicles. The Com-

plex is to be financed by selling close to $270,000,000 worth

of bonds, to private investors.

The proposed Complex has produced extensive litiga-

tion in the state courts. New Jersey Sports and Expost-

tion Authority v. McCrane, 119 N. J. Super. 457 (L. Div.

1972), aff'd as modified 61 N. J. 1 (1972), exhaustively

deals with the state issues presented. See also In re.

Sports Complex Hackensack Meadowlands, 62 N. J. 248

(1973).

Plaintiffs in the instant litigation seek injunctive relief

against the continued construction of the Complex. In

this Circuit, there are four “essential criteria” that must

be satisfied by one secking a preliminary injunction. Suc-

einctly put in Winkleman Vv. New York Stock Exchange,

445 F. 2d 786, 789 (3d Cir. 1972), these comprise “. . - (1)

irreparable harm to appellants absent such stay; (2) ab-

sence of substantial harm to other interested parties; (3)

absence of harm to the public interest; (4) a likelihood

that appellants would prevail on the merits.” Plaintiffs’

argument appears to be that, unless an injunction issues,

Ta

Appendia B

the Complex when constructed and the vehicular traffic it

generates must be in violation of the applicable national

ambient air quality standards found in 40 C.F.R. § 50.1

et seq.

Plaintiffs in the case at bar do not seek to abate a pres-

ently existing nuisance. Rather, they seek equitable re- .

lief against a possible future violation of federal air qual-

ity standards. The extensive hearings conducted between

July 10 and August 11, 1972 by the New Jersey Depart-

ment of Environmental Protection concluded, however,

that “. . . the Sports Complex will not interfere with the

State of New Jersey achieving the National Ambient Air

Quality Standards for sulphur dioxides [sulphur oxides,

40 C.F.R. §§ 50.4, 50.5], particulates [40 C.F.R. §§ 50.6,

50.7], and oxidants photo-chemical oxidants, [40 C.F.R.

§ 50.9] ...” Hearing Officers’ Report and Recommenda-

tions at 55. This finding of fact, though pertaining to

events in futuro, is sufficiently buttressed by technical ex-

pertise to render it unassailable before a court of law.

An estimate of possible air pollution generated by use of

the Complex in 1975 (its scheduled completion date) is,

at best, highly speculative. Such speculation seems en-

tirely to foreclose the plaintiffs’ ability to demonstrate

that, absent an injunction, they will suffer any harm,

“irreparable” or other.*

8 Should use of the Complex cause excessive pollution, those ag-

grieved have remedy in a suit at common law to abate a public

nuisance. Further, 42 U.S.C. § 1857d(k) permits a federal injunc-

tion to abate excessive pollution on an emergency basis, on the ap-

plication of the Attorney General. This section was recently in-

voked in the United States District Court for the Northern Dis-

trict of Alabama, Pointer, J., to curtail industrial production in

Birmingham until a health emergency had abated. See also 42

U.S.C. § 1857d(g)(1), permitting similar abatement across state

lines.

ek oe

PEALE ARETE STI Pe

8a

Appendia B

Since the plaintiffs at bar cannot carry their burden of

showing irreparable harm to them absent injunction re-

lief, it becomes unnecessary to consider the other Winkle-

man criteria. In passing, however, the court notes that,

since the harm complained of is entirely in futuro, the

likelihood is remote that plaintiffs could “prevail on the

merits,” é.c., demonstrate that the national air quality

standards will probably be exceeded. Accordingly, the

application for a preliminary injunction against continued

construction of the Complex is denied.

The plaintiffs also seek a judgment that N.J S.A. 5:10-1

et seq. is repugnant to 42 U.S.C. § 1857 et seq., and there-

fore void under the Supremacy Clause. Their attack is

premised on the following syllogism: (1) The New Jersey

statute, as interpreted by the New Jersey Supreme Court,

requires that the Complex be located only in the Hacken-

sack Meadowlands. (2) Placing the Complex in the Mead-

owlands must cause the national ambient air quality

standards to be exceeded in the New Jersey-New York-

Connecticut metropolitan region, or at least in that por-

tion of the region adjacent to the Complex. (3) There-

fore the state statute permitting the Complex to be con-

structed violates federal law.

The court is not persuaded by this argument for sever-

al reasons. First, as seen supra, there is no proof that

the Complex will cause federally mandated pollution lev-

els to be exceeded. Second, the New Jersey statute could

be superseded by a federal statute only if the federal law

expressed & Congressional intent to preempt the state’s

exercise of its power in the same field. As stated in

Schwartz v. Texas, 344 U. S. 199, 202-03 (1952), “fijt will

not be presumed that a federal statute was intended to

supersede the exercise of the power of the state unless

een Pa hit alas DY Pitageate sae i ge a RB i i

9a

Appendia B

there is a clear manifestation of [Congressional] intention

to do so.” N.J.S.A. 5:10-1 et seg. does not concern itself

with air pollution. Rather it simply permits a sports

stadium and attendant facilities to be developed in one

area of the Meadowlands. Since the subjects dealt with

by the juxtaposed statutes are entirely different (an open-

air hippodrome and air pgllution), no claim can be heard .

that Congress intended to supercede the state’s exercise

of power in the same field. The completed Complex will

of course have to comply with whatever final pollution

standards are promulgated under the authority of the

Clean Air Act. The court is sure that the Sports and

Exposition Authority will obey the law. The fact that

the standards may not, at some future point in time, be

met does not constitute a question arising under the Su-

premacy Clause or, apparently, a question of any consti-

tutional dimension. The court concludes that no question

of federal preemption of or conflict with a state statute is

presented under the Supremacy Clause.

Plaintiffs finally contend that a Clean Air Act regula-

tion, 40 C.F.R. § 52.1590, which appears as part of the

New Jersey proposed transportation control plan at 38

Fed. Reg. 17790 (July 3, 1973), has not been complied

with by the defendants and that therefore the project is

proceeding in violation of federal law. The regulation

reads in pertinent part as follows:

§ 52.1590 Management of parking supply.

(a) Definitions:

(1) “Construction” means fabrication, erec-

tion, or installation of a parking facility,

or any conversion of land to use as a fa-

cility.

SESSA STONE EOE

(4)

(5)

(b)

(c)

Environmental

10a

Appendia B

“Commenced” means the date on which

an owner or operator and a contractor to,

or affiliate of such owner or operator, en-

ter into a binding agreement or contrac-

tual obligation to undertake and complete,

within a reasonable time, a continuous

program of construction, modification, or

enlargement.

Parking facility (also ealled “facility”)

means any facility, building, structure, or

lot or portion thereof used primarily for

temporary storage of motor vehicles.

This regulation is applicable in all areas

within the New Jersey portion of the

New Jersey-New York-Connecticut Inter-

state Region... -

No person, after the date of this proposed

regulation, shall commence construction

of any new parking facility or modify or

enlarge any existing parking facility until

he has first received from the Administra-

tor or from an agency approved by the

Administrator a permit stating that con-

struction, modification, or enlargement of

such facility will not interfere with the

attainment of applicable Federal Air

Quality Standards.

Plaintiffs’ contention is that the defendants have never

received a permit from the Administrator of the federal

Protection Agency to construct their pro-

nit iin tn Nill nN ae as AGE

|

i

{

lla

Appendix B

posed 25,000 vehicle parking lot. But 40 C.F.R. § 52.1590

is only a proposed regulation. 38 Fed. Reg. 21505 (Aug.

9, 1973) reports that the United States Court of Appeals

for the District of Columbia Circuit “. . . has granted a

request that the deadline for promulgation [of the New

Jersey transportation control plan, 38 Fed. Reg. 17782-

92] be October 15, 1973.”. This court is not prepared to -

disregard the mandate of the Court of Appeals having di-

rect responsibility for supervision and promulgation of

the transportation control plan.

A proposed regulation may be modified or abandoned.

It does not have the force of law. Since 40 C.F.R. § 52.

1590 is at this date not final, plaintiffs cannot be heard to

complain that it is being violated.‘

For the foregoing reasons it is OrpERrED that the com-

plaint be, and hereby is, dismissed. Costs shall not be

awarded either party.

James A. CooLAHAN,

United States District Judge

*The fact that the period during which the public may submit

comments in writing to the Environmental Protection Agency has

now, under 38 Fed. Reg. 21505, been extended until August 15,

1973 indicates that some parts of the transportation control plan

may be modified or abandoned by October 15, 1973. Among these

may be 40 C.F.R. 52.1590(c). Only if § 52.1590(c) is promul-

gated as a final regulation as of October 15, 1973 will the question

of whether the phrase “the date of this proposed regulation” refers

to July 3, 1973 or October 15, 1973, be ripe for resolution.

:

12a

APPENDIX Cc

Natural Resources Defense Council, Inc. v- Environmental

Protection Agency, Order of March 12, 1973

(Original Filed—March 12, 1973)

UNITED STATES COURT OF APPEALS

For THE DistRicT OF CotumsBi1a CIRCUIT

SEPTEMBER TERM, 1972

No. 72-1522

a>

—

os

NaruraL RESOURCES DeFENsE CoUNCIL, Inc.,

Petitioner

v.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent

No. 72-1598

FRIENDS OF THE Eartu, Inc., METROPOLITAN WasHINGTON

CoaLiTion FoR CLEAN Arr, Inc., MS. EvcentE ANDERSON,

Eric Peter LEvINE,

Petitioners

Vv.

ExvinoNMENTAL PROTECTION AGENCY,

Respondent

No. 72-1810

a

~

13a

Appendix C

a

~~

Narurat Resources Derense Councu, Inc., et al.,

Petitioners

Vv.

ENVIRONMENTAL ProTecTion AGENCY,

*

Respondent |

No. 72-1941

Naturat Resources Derense Councit, Inc., FRIENDS OF

THE Earta, Inc., MS. Henrietra Bartow, Eric PETER

LEVINE,

Petitioners

Vv.

ENvironMENTAL Protection AGENCY,

Respondent

No. 72-1982

NaruraL Resources Derense Councit, Inc., FRIENDS OF

tHE Eartu, Inc., Jonn Herman, Metro Crean AIR

Commirrer, Crrizens FENvironMentaL CoUNCIL OF

Greater Kansas Crry, Mark SHapiron,

Petitioners

A

ENVIRONMENTAL ProtecTION AGENCY,

Respondent

No. 72-1985

sities

al

NS Ta Te

bf i ee Se,

?

Natura, Resources Derense Councn, Inc.,

Petitioner

v.

EnvmonMentaL Protection AGENCY,

Respondent

No. 72-2028

Narurat Resources DerensE CounciL, Inc., FRIENDS OF

THE Eartu, Inc., Cororapo CITIZENS FOR Crean AIR,

Geratp L. Jensen, Esq., Marca M. Raskin,

Petitioners

v.

ExvmonmentaL Protection AGENCY,

Respondent

No. 72-2159

Narurat Resources DeFrensE CouncIL, Inc., FRIENDS OF

cue Eartu, Inc., Paut F. McCrary, Pam Forpine,

Petitioners

Vv.

EwnvironMentaL Protection AGENCY,

Respondent

CoMMONWEALTH OF KENTUCKY

Intervenor.

lida

Appendix C

Before: Bazeton, Chief Judge, Wricht and MacKrixnxon,

Cireuit Judges.

ORDER

On consideration of respondent’s application for modifi-

cation of this Court’s order of January 31, 1973, and of .

petitioners’ memorandum regarding respondent’s motion

for modification of order, it is

OrperED by the Court that respondent’s aforesaid mo-

tion is granted, and the order filed in the above-entitled

eases on January 31, 1973, is hereby modified as follows:

Paragraph (4) of the order shall be changed to read

as follows:

(4) The Administrator shall, within two months

after the date required for submission of a plan

under paragraphs (3) or (9) of this order, approve

or disapprove such plan or each portion thereof

pursuant to the requirements of Section 110(a) (2),

except that approval or disapproval of the portion

of the implementation plan to be submitted pur-

suant to paragraph (9) of this order, to the extent

such provisions are also necessary for the attain-

ment of the standards, may be deferred until the

time for approval or disapproval specified in that

paragraph.

Paragraph (9) of the order shall be modified by de-

leting the last two sentences and adding the following:

Respondent shall propose in the Federal Register

no later than April 15, 1973, amendments to 40

C.F.R. Part 51 which will set forth the require-

16a

Appendia C

ments for State implementation plan procedures

necessary for the maintenance of the national stand-

ards. Such proposed amendments shall be promul-

gated no later than June 11, 1973. States shall be

directed to submit implementation plan provisions

to comply with such regulations no later than

August 15, 1973. Such new plans shall be dealt

with by the Administrator in the manner set out

in paragraphs (4) and (5) of this order.

So ordered.

Dated: March 12, 1973

Sint bbw Lanta

rasta < Lapatind ete LS

17a

APPENDIX D

Natural Resources Defense Council, Inc. v. Envirenmental

Protection Agency, Order of July 26, 1973

(Original Filed—July 26, 1973)

UNITED STATES COURT OF APPEALS

For tHe District og Cotumsia Circuit

September Term, 1972

Nos. 72-1522, 72-1598

72-1810, 72-1941

72-1982, 72-1985

72-2028, 72-2159

NaturaL Resources Derense Counci, Inc., et al.,

Petitioners,

v.

ENVIRONMENTAL ProTEecTION AGENCY,

Respondent.

Sa

Before: Bazelon, Chief Judge; Wright and MacKinnon,

Circuit Judges

ORDER

On consideration of Respondent’s application for modi-

fication of this Court’s order of January 31, 1973, as modi-

fied on March 12, 1973, it is

a ee ee rE ee

18a

Appendix D

Orperep by the Court that paragraph (5) of the order

of January 31, 1973, be modified as follows:

(5) If any state fails to comply with the require-

ments of paragraphs (3) or (9) of this order, or if

any state plan is determined by the Administrator

not to be in accordance with the requirements of

paragraphs (3) or (9) of this order, the Adminis-

trator shall prepare, publish, and promulgate regu-

lations setting forth an implementation plan, or

portion thereof, for the noncomplying state, follow-

ing the procedures established in Section 110(¢) ex-

cept that proposal and promulgation of any such

regulations shall be made in accordance with the

following schedule: j

(A) For regulations required due to a State’s failure to

comply with paragraph (3) of this order—

(i) Proposal of any such regulations by July 24,

1973, and

(ii) Promulgation of any such regulations by

October 15, 1973, provided that any regulations re-

quiring review of the construction, modification, or

enlargement of parking facilities shall be applicable

to such facilities beginning August 15, 1973;

cabich aie Wier ees

o sieSd ti gatideend cvs SIA ah CRIN ks sires

(B) For regulations required due to a State’s failure to

comply with paragraph (9) of this order—

(i) Proposal of any such regulations by October

15, 1973, and

(ii) Promulgation of any such regulatious by De-

cember 15, 1973.

BERR eS

SE Fae a a,

Per Curiam 7

For the Court:

Hues E. Kuiine

Clerk

In The | ius ae nC ||

Supreme Court of the United States

October Term, 1973

o—

No. A-1154

NEW JERSEY CITIZENS FOR CLEAN AIR, INC., et al.,

; Petitioners,

U8

NEW JERSEY SPORTS AND EXPOSITION AUTHORITY,

Respondent.

ERRATTA

FREDERICK C. MEZEY

Attomey for Petitioners

—-,,

MEZEY & MEZEY

93 Bayard Street

New Brunswick, New Jersey 08901

(201) 545-6011

LUTZ APPELLATE PRINTERS, INC.

(6395) Law and Financia! Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.

ee: ; ' -6H 8 50) 7 : ‘ , «GG . ‘ ° es

i i ee ee

$e ERIE oe aR Tae LT A RR, PLE a

Page

ili

30

Ta

15a

63a

ERRATTA

Petition

Citation for Gunther should be: Gunther v. San

Diego & Arizona Eastern Railroad Co., 382 U.S.

257, 86 S.Ct. 368, 15 L.Ed. 2d 308 (1965).

Second sentence after section a. should begin:

“However, they were well aware that some air

quality standards for all automobile related air

pollutants were currently being violated... .”

Appendix

Bold faced “Public Health and Welfare 42 Section

1857c” should be deleted.

Bold faced “Public Health and Welfare” should be

deleted.

The following should be added directly above line

6, starting with “permitted by the Eleventh

Amendment.”

Section 1857h-2. Citizen suits-Establishment of

right to bring suit

(a) Except as provided in subsection (b) of this

section, any person may commence a civil action

on his own behalf —

(1) against any person (including (i) the United

States, and (ii) any other governmental

instrumentality or agency to the extent.

Announcement dealing with Title 32 should be

deleted.

Announcement dealing with Title 41, and pages

125a, 126a, and 127a should be deleted.