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

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SUPREME GOMRT, U. B.

WICHAEL ROBSK, JA_CLERX | ©

Supreme Court of the United States

October Term, 1973

No. 4208 | 73 236 |

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

Petitioners,

vs. ;

NEW JERSEY SPORTS AND EXPOSITION AUTHORITY, i

Respondent. e

On Petition for Writ of Certiorari to the Supreme Court of New Jersey t

e

be

PETITIONERS’ REPLY MEMORANDUM

FREDERICK C. MEZEY }

Attomey for Petitioners x

MEZEY & MEZEY i

93 Bayard Street :

New Brunswick, New Jersey 08901

(201) 545-6011

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BRAG TOE GN pe ETE AO TNL CY ERE Te UP ASI

TABLE OF CONTENTS

Page

Statement of the Case ......---eeececrererrrree 1

Replies to Reasons for Denying the Petition ......--. 5

Conclusion 2... cc cgec errr ccc cccccccessccere 10

TABLE OF CITATIONS

CASES CITED:

Marianne Wuillamey et al. v. David A.

Werblin, etal. . 2... cece cree cc reecce 5, 6

Natural Resources Defense Council v.

Environmental Protection Agency, 475

F.2d 968 (D.C. Cir. 1973) .....---+ee ees

New Jersey Sports and Exposition Authority

v. McCrane, 61 N.J. 1, N.J. 2, 292 A.2d

545 (1972), Appeal dismissed, 409 U.S.

943 (1972) .... ccc cee erccvccrecece

Sports Complex in Hackensack Meadowlands,

62 N.J. 248, 300 A.2d 337, 340 (1973) .....

STATUTES CITED :

Clean Air Act:

42 U.S.C. Sec. 1847 et seq. Po Ore ne Bee et Ts

42 U.S.C. Sec. 304 ......- cece reer eeereeees

42 U.S.C. Sec. 1857c-5(a)(2)(B) ..

42 U.S.C. Sec. 1857c-5(c) ..

A

erm apnea

}

ii

Contents

eotn tee Bits

42 U.S.C. Sec. 110(a)(2)(B) ......0.0.0.ee0e- 8,9

Se 9

RULES CITED:

40 C.F.R. Sec. 61.18 .........0...se eee e ences 8,9

OTHER AUTHORITIES CITED:

36 Fed. Reg. 25233 (Dec. 30, 1971)............-- 8

38 Fed. Reg. 6279 (March 8,1973) .............. 4

38 Fed. Reg. 17782 (Jul. 3,1973) ............... 5

88 Fed. Reg. 17790 ..........0ccccccececeseees 6

38 Fed. Reg. 20851 (August 31,1973) ............ 6

In The

Supreme Court of the Hnited States

October Term, 1973

a

No. A-236

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

Petitioners,

Us.

NEW JERSEY SPORTS AND_ EXPOSITION

AUTHORITY,

Respondent.

On Petition for a Writ of Certiorari to the Supreme

Court of New Jersey

PETITIONERS’ REPLY MEMORANDUM

This brief is submitted in reply to matters raised by

Respondent, New Jersey Sports and Exposition Authority

in its Brief in Opposition to Petition for Writ of Certiorari.

STATEMENT OF THE CASE

- Respondent’s Statement of the Case is inaccurate or

misleading in several respects.

1. At page three of Respondent’s Brief in Opposition

(hereinafter Resp. Br.) it is stated that “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.” The present case

has never been before this Court. The case referred to was

New Jersey Sports and Exposition Authority v. McCrane,

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

943 (1972). Petitioners herein did not participate in the

application for certiorari in 61 N.J. as the grounds asserted

did not concern the air pollution issue. The petitioners

herein were amicus curiae in the earlier case solely to

represent environmental interests, and had no part

whatever to do with the appeal of that case to this Court.

The present case is bined. on the New Jersey Supreme

Court decision repeated in 62 N.J. and concerns review of

the environmental hearings ordered in 61 N.J.

2. It is stated at Resp. Br. 4, 5 that the hearing below

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

Sports and Exposition Authority Law”, which relates to

the environmental balance of the Meadowlands, and that

the hearings were concerned solely with scientific and

factual matters. This is somewhat misleading. The New

Jersey Supreme Court did order the hearings because of

Section 23; however, the hearings did cover the legality of

the construction and location of the Sports Complex with

reference to the Clean Air Act, 42 U.S.C. Section 1847 et

seq. On reviewing these hearings, the Court noted that this

had been proper.

““A considerable part of the hearing was concerned

with projections of the impact of the complex on

air quality from the broad point of view of the

public health. While the statutory obligation

Statement of the Case

imposed on the Authority to consult with the

named agencies were concerned only with the

‘delicate environmental balance’ of the

meadowlands, our remand was _ sufficiently

comprehensive to include the broader issue and the

hearing agencies rightly concerned themselves with

it.”

In re Sports Complex in Hackensack Meadowlands, 62 N.J.

248, 300 A.2d 337, 340 (19783). It should be noted that

the remand resulted from the Court’s determination that

prior informal hearings had not been sufficient, and it was

ordered at the request of the petitioners herein, whose

primary concern had been air pollution. The respondent’s

position, that the Clean Air Act was irrelevant to the

proceedings below, infers that construction of the complex

could have proceeded regardless of the findings concerning

air pollution. Such a position seems untenable.

3. It is stated at Resp. Br. 6 that the hearing agencies

findings contained measures to insure that federal ambient

air quality standards would not be violated, citing the

hearing agencies’ findings at pages 260 to 262 of the

petitioners’ appendix (hereinafter Pet. App.). Close

examination shows that these “measures” provide no

insurance that federal air quality standards will not be

exceeded; the only measure even referring to these

standards is a requirement that “studies” be undertaken to

provide “‘facilities and operational procedures . . . in order

to prevent any possible exceeding of federal air quality

standards .. .”” The meaninglessness of this requirement is

illustrated by the fact, never refuted by the respondent,

that federal air quality standards are already being violated

in the area where the sports complex is to be located. See

page 6 of the Petition for Writ of Certiorari (hereinafter

et.).

PTC ACG ETS RL INL OS y al

Statement of the Case

4. Finally, the respondent complains at Resp. Br. 8 and

9 that the petitioners herein submitted a Petition and a

Repetition for Rehearing to the New Jersey Supreme

Court after it rendered its opinion on February 5, 1973

which “raised new matters not previously considered” and

that the Repetition for Rehearing does not exist under

New Jersey appellate practice. Suffice it to say that the

New Jersey Supreme Court, in denying the Repetition,

noted that the matter had been “duly presented to the

Court” Pet. App. 299a. Contrary to the respondents

contention, petitioners consider this a recognition of the

propriety of the Repetition by the final authority on New

Jersey appellate practice. As to the substance of the

petitions, the matters raised were new because they did

not exist at the time of the Court’s decision and could thus

only be raised in petitions for rehearing. The Petition. for

was submitted because the New Jersey Supreme

Court had based its determination that the sports complex

would not violate federal clean air stardards on the

assumption that a valid state implementation plan was in

effect which would preclude this, 300 A.2d, at 340, 341,

Pet. App. 271a, whereas, in fact, this implementation plan

had been invalidated by the District of Columbia Court of

Appeals on January 31, 1973, five days before the decision

below. Natural Resources Defense Council ov.

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

Cir. 1973). Furthermore, the D.C. Circuit stated that the

Administrator acted illegally in approving _ this

implementation plan; apparently, there never had been a

valid plan in effect. The Repetition for Rehearing was

submitted on the basis of an announcement made by the

Administrator at 38 Fed. Reg. 6279 (March 8, 1973) that

supported the interpretation of the Clean Air Act argued

by the petitions in the Court below, which petitioners

considered as warranting a review of the decision.

_ REPLIES TO REASONS FOR DENYING THE PETITION

I

The thrust of the first reason, “Plaintiffs Rights under

the Clean Air Act Remains Unimpaired by the Proceedings

Below’’, is that sources of air pollution may only be

brought under control after they have been built and have

started violating air quality standards. It is the position of

the petitioners herein and of the plaintiffs in Marianne

Wuillamey et al v. David A. Werblin, et al, cited at Resp.

Br. 10, that such is not the substance of the Clean Air Act

and the various regulations promulgated thereunder.

The plaintiffs in Wuillamey argued that the respondent

herein was required to obtain a permit to commence

construction of its 25,000 car parking facility pursuant to

a transportation control plan proposed by the

Administrator of the Environmental Protection Agency on

June 22, 1973, published at 38 Fed. Reg. 17782 (July 3,

1973). The complaint was dismissed largely because there

was no present exceeding of federal air quality standards

by the inchoate complex itself and the above cited

regulation had only been proposed, and there could thus

be no current violation of it. This transportation control

plan requires some explanation.

The proposed transportation control plan was issued

pursuant to the order of the Court in Natural Resources

Defense Council v. Environmental Protection Agency,

supra as modified on March 12, 1973 and July 26, 1973,

38 Fed. Reg. 17782 (July 3, 1973). Paragraph (3) of that

order required the states whose implementation plans had

been invalidated by that case to submit complying plans

for the attainment of federal air quality standards by

certain deadlines; upon their failure to do so, paragraph (5)

(as modified) required the Administrator to propose a

complying plan for the defaulting states by July 24, 1973

and promulgate one by October 15, 1973 “provided that

any regulations requiring review of the construction,

Replies to Reasons for Denying the Petiton

modification, or enlargement of parking facilities shall be

applicable to such facilities beginning August 15, 1972”.

The plan proposed contained a section requiring permits

for parking facilities under certain circumstances, which

section stated “after the date of this proposed regulation” a

permit would be required, 38 Fed. Reg. at 17790. An

announcement by the Administrator published at 38 Fed.

Reg. 20851 (August 31, 1973) stated that parking facility

regulations were to be effective as of August 15, 1973

apparently in compliance with the Court’s order.

This issue of the August 15 effective date, specifically

for parking facility regulations, was argued extensively at

the hearing which resulted in the dismissal of the

complaint in Wuillamey. The Court’s opinion made no

mention of it, but referred solely to the “‘proposal”’ status

of the plan as a whole. On the basis of this and other

grounds, a notice of appeal to the Third Circuit Court of

Appeals has been filed in Wuillamey; also, plaintiffs in

Natural Resources Defense Council v. Environmental

Protection Agency, have moved for a clarification of the

order as to the effective date of parking facility regulations

proposed by the Administrator.

As to the reply made by the Administrator to the

petitioners’ demand that he move against the respondent

Sports Authority to enforce the transportation control

plan, obviously the petitioners do not agree with his

opinion of the effective date of parking facility

regulations. Further, the respondent seems to have made

an erroneous representation of something else the

Administrator said in that reply. He did not say 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 emission standard under the Act’ Resp.

Br. 11. Rather, in response to a specific demand that he

enforce the plan’s parking facility requirements, the

Replies to Reasons for Denying the Petition

Administrator stated that such enforcement was

discretionary with him, and that “The appropriate use of

Section 304 in such situations is to commence a civil

action against the alleged violation of the implementation

plan.”” Resp. App. 2a, (emphasis added). Of course, this

was the position of the Wuillamey plaintiffs in bringing

suit.

.

li

The respondent states that New Jersey’s

Implementation Plan was not involved in the proceedings

below, and that in any event, they were not a proper

forum to contest the validity of the plan. The first

assertion is simply untrue. As indicated in the Statement

of the Case, supra, the New Jersey Supreme Court’s

affirmance of the agencies’ findings was at least in part

predicated on the belief that a valid plan was in effect; the

fact that this was not the case indicates the infirmity of

the decision below.

The respondent claims that the state tribunals were

improper fora to raise issues concerning state

implementation plans, and that the validity of such plans

may only be contested in the United States Court of

Appeals for the Third Circuit. First, the New Jersey

Supreme Court could properly decide that the existence of

a valid implementation plan was a requisite to approving

state environmental hearings findings that federal air

quality standards would not be violated and apparently did

so. Thus, anyone challenging those hearings has standing to

assert the invalidity of such a plan. Second, the fact that

the validity of an approved implementation plan can only

be challenged in a given court has nothing whatever to do

with the issue of the propriety of a project’s being

commenced without review under a valid plan that should

~ been approved and in effect at that time and has not

n.

Replies to Reasons for Denying the Petition

Ill

The third reason given for denial of the writ is that

“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.”’ In short, this reason is based on the dates of

proposal and promulgation and effective dates of the

regulations which, if in effect, would require a

preconstruction review of the sports complex. Generally,

the petitioners do not disagree with the dat-s as stated by

the respondent, except that to the extent that

preconstruction review of complex sources is necessary for

the attainment of federal air quality standards as opposed

to the maintenance thereof. The deadlines for such

regulations would, according to the D.C. Circuit Court’s

order, be proposed by July 26 and promulgation by

October 15, 1973.

However, the real issue here is misstated by the

respondent. The issue is the correctness of the decision by

the New Jersey Supreme Court. The petitioners argued

below that the Clean Air Act and regulations then in effect

required preconstruction review of sources of air pollution

such as the sports complex. The complex source

regulations, proposed as promulgatea thereafter,

established that the petitioners’ contention was correct.

40 C.F.R. Section 51.18, as amended by 36 Fed. Reg.

25233 (Dec. 30, 1971), required preconstruction review of

stationary sources, e.g., factories, in state implementation

plans. New Jersey’s plan had been submitted and approval

as providing for such review. Section 110 (a)(2)(B) of the

Act, 42 U.S.C. Section 1857c-5(a)(2)(B), requires state

plans to contain all measures “necessary to insure this

attainment and maintenance” of federal standards. At 38

Fed. Reg. 9599 the Administrator said “In the

Replies to Reasons for Denying the Petition

Administrator’s judgment, this amplification of the

requirements of 40 C.F.R. Section 51.18 is a step

necessary to insure the maintenance of the national

ambient air quality standards. .. ’’ The Administrator was

thus indicating that to be valid, all implementation plans

should have been submitted with complex source review

provisions from the beginning. If the requirements of the

Act had been followed, New Jersey would have had

provisions for such review by July 31, 1972, at the latest.

The E.P.A. promulgated national ambient air quality

standards on April 30, 1971, and Section 110 of the Act

42 U.S.C. Section 1857c-5 requires the states to submit

their plans within nine months of such promulgation, i.e.,

by January 31, 1972. The Administrator is then required

by Section 110(c), 42 U.S.C. 1857c-5(c) to approve or

disapprove the plan within four months, and if a plan is

disapproved, tc promulgate one within six months of

submission, or July 31, 1972.

This means two things: (1) The court below was

incorrect in assuming the state’s citizens were protected

from violations of federal air quality standards by a valid

implementation plan even before that plan was invalidated

by the District of Columbia Court of Appeals; (2) Due to

lack of compliance with the Act by the New Jersey

Department of Environmental Protection and the United

States Environmental Protection Agency, there has been a

hiatus in regard to protective regulations between July 31,

1972 and the present, when the people of New Jersey had

a right to such regulations. The Sports authority hopes to

push its complex through the hiatus and gain vested rights

before some kind of meaningful controls can be imposed

on it. It should not be allowed to profit from the failures

of these agencies to perform their duties, particularly when

the Commissioner of one of them gave the approval for the

complex to proceed, and the issue of the necessity of

review of the complex pursuant to a valid plan was raised

repeatedly as long ago as July of 1972.

10

CONCLUSION

By way of conclusion, petitioners would like to note

that the matters raised in this Reply Brief has a result of

respondent’s brief are matters which, while arising in New

Jersey, involve principles of national application. It seems

clear that the Clean Air Act requires good faith and

cooperation between each state and the Environmental

Protection Agency if the beneficial objects of the Act are

to be achieved. Without a clear statement from this Court

requiring compliance by the States with the Act, it will

unfortunately be inevitable that a state will sacrifice the

quality of the air we all breathe if necessary to realize a

state project. For the additional reasons set forth herein,

therefore, it is respectfully requested that certiorari be

granted.

Respectfully submitted,

s/ Frederick C. Mezey

Attorney for Petitioners