Brief for the Respondent in Opposition — Francisco Enterprises, Inc. v. Kirby

In the Supreme Court of the United States

OcTOBER TERM, 1973

No. 73-1008

PORTLAND CEMENT CORPORATION, PETITIONER

Vv.

ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-53)

is reported at 486 F. 2d 375.

JURISDICTION

The judgment of the court of appeals was entered on

June 29, 1973. A timely petition for rehearing en

banc was denied on October 1, 1973. The petition for a

writ of certiorari was filed on December 27, 1973. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATUTES INVOLVED

The relevant portions of Section 111 of the Clean

Air Act, 84 Stat. 1683, as added, 42 U.S.C. 1857c-6, and

Section 102(2)(C) of the National Environmental Policy

Act, 83 Stat. 853, 42 U.S.C. 4332(C), are set forth at

Pet. App. 57-63.

(1)

2

QUESTIONS PRESENTED

1. Whether the Administrator of the Environmental

Protection Agency must prepare an environmental impact

statement, pursuant to the National Environmental Poli-

cy Act, 42 U.S.C. 4332(C), prior to promulgating new

source emission standards under the procedures required

by Section 111 of the Clean Air Act, as added, 42 U.S.C.

1857c-6.

2. Whether the court of appeals should have vacated

the regulation’ establishing new-source emission

standards because it was remanding the case to the

Administrator for consideration and clarification of

certain matters concerning the methodology of tests

performed by the Administrator.

STATEMENT

Section 111(b) of the Clean Air Act, as added, 42

U.S.C. 1857c-6(b), provides that within 90 days of the

enactment of the Act the Administrator.of the Environ-

mental Protection Agency shall publish a list of cate-

gories of significant stationary air pollution sources

which he determines may contribute to the endangerment

of public health or welfare. 120 days thereafter, the

Administrator is required to publish proposed federal

standards for new sources of air pollution within each

category and to provide opportunity for interested

persons to comment on the proposed regulations. 90 days

thereafter, he is required to promulgate the standards,

with such modifications as he may deem appropriate. The

standards became effective on promulgation but may be

modified from time to time.

On August 17, 1971, the Administrator published pro-

posed standards for five categories of air pollution

sources, including Portland cement plants, together

with a “Background Document” explaining the basis for the

3

regulations. After receipt of various objections and

comments, the Secretary, on December 23, 1971, pro-

mulgated the standards, including those for Portland

cement plants (Pet. App. 3-5). Petitioner sought review

in the United States Court of Appeals for the District

of Columbia Circuit. On June 29, 1973, that court af-

firmed in part, reversed in part, and remanded the case

to the Agency for further proceedings (Pet. App. 1-53).

The court held that (1) the Administrator, in complying

with the detailed provisions of Section 111 of the

Clean Air Act, was not required to file what would have

been essentially a duplicative environmental impact

statement, as urged by petitioner, prior to promul-

gating new source emission standards (Pet. App. 5-21),

and (2) the case should be remanded to the Adminis-

trator for consideration and clarification of certain

matters raised by petitioner concerning testing method-

ology, but the regulations promulgated by the Adminis-

trator should not be set aside in the interim (Pet. App.

36). Petitioner seeks further review in this Court.!

ARGUMENT

1. Contrary to petitioner’s intimations (Pet. 18-20),

the court of appeals did not hold the National En-

vironmental Policy Act, 83 Stat. 852, 42 U.S.C. 4321,

et seq. (NEPA), inapplicable to the activities of the

Enivronmental Protection Agency (EPA). Rather, it

specifically limited its decision to a holding that EPA

need not file an impact statement prior to promulgating

new source performance standards under Section 111 of

the Clean Air Act. The court, after a thorough analysis

‘Although the court below, in its opinion, expressed its

willingness to consider an application for a_ stay of the

contested regulation “based on probability of success and

furtherance of the public interest” (Pet. App. 36), petitioner

did not seek a stay.

Rae

4

of the two Acts, concluded that “section 111 of the

Clean Air Act, properly construed, requires the func-

tional equivalent of a NEPA impact statement” (Pet. App.

16).

The court reasoned that the weighing and balancing of |

environmental considerations and economic costs |

required in an environmental impact statement are 7

required by the Clean Air Act as well and are to be set

forth in the reasons given by the Administrator to

support the standards (Pet. App. 17-19, 21-24). Thus

filing an environmental impact statement would be

duplicative and inconsistent with the detailed

provisions and time schedule of Section 111 of the

Clean Air Act (Pet. App. 5-21). This, in our view, is

the correct and reasonable correlation of these two

environmental protection Acts.

The rigid time constraints imposed by Congress in the

Clean Air Act (supra, p. 2) require prompt and ef-

fective action by the Administrator in establishing the

new source standards. Both environmental and cost fac-

tors must be considered by the Administrator, and

industry and public comments are sought (and were

received here). The court thoroughly considered the

legislative histories of the two Acts (Pet. App. 6-15)

and correctly concluded that Congress did not intend

the Administrator of the Environmental Protection

Agency to delay and duplicate procedures by preparing

an impact statement under NEPA procedures in addition

to following the parallel procedures of Section 111 of

the Clean Air Act. |

2. The decision of the court below is in accord with j

its own prior decisions and with decisions in other

circuits. The question whether the Administrator of the

Environmental Protection Agency must file an environ-

mental impact statement under other sections of the

RIPE SATE RN IT PRI TE IN SENT ergs 8 CEE WALA NTR NRIOL RIGS URE REET NEY SE Peg ES REE

aes

5

Clean Air Act has arisen in several circuits, and the

courts have uniformly decided that the impact statement

requirements of NEPA are not applicable to such actions.

Anaconda Co. v. Ruckelshaus, 482 F. 2d 1301 (C.A.

10); Appalachian Power Co. v. Environmental Pro-

tection Agency, 477 F. 2d 495 (C.A. 4), certiorari

denied, April 29, 1974 (No. 73-1038); Duquesne Light

Co. v. Enivronmental Protection Agency, 481 F. 2d 1

(C.A. 3); Getty Oil Co. v. Ruckelshaus, 467 F. 2d

349 (C.A. 3); Buckeye Power, Inc. v. Environmental

Protection Agency, 481 F. 2d 162 (C.A. 6); Essex

Chemical Corp. v. Ruckelshaus, 486 F. 2d 427 (C.A.

D.C.); International Harvester Company v. Ruckels-

haus, 478 F. 2d 615 (C.A. D.C.).

3. Petitioner argues essentially that a court, in

reviewing the adoption of a regulation by an admin-

istrative agency, necessarily must vacate the regu-

lation if a remand is required. This conclusion would

be disruptive of the processes of orderly administra-

tive action and review and is legally unsound. Camp v.

Pitts, 411 U.S. 138, relied upon by petitioner, re-

quires no such result.

In Camp, the Court held that a reviewing court

may not undertake a de novo review of agency action

unless it finds the fact-finding process by which the

agency record was made inadequate. The Court emphasized

the importance of the administrative record and en-

couraged, rather than precluded, a remand to the agency

for additional explanations or considerations if that

record is unclear (411 U.S. at 143). See also Citizens

to Preserve Overton Park v. Volpe, 401 U.S. 402. The

sensibleness of remand where the record is unclear is

illustrated by the present case. The court of appeals

did not find the Administrator’s action invalid or

conclude that on the administrative record it could do

so. Rather it decided that the administrative record

6

should be supplemented to allow an informed answer to

certain questions that petitioner had raised. In the

interim the regulation, which the court did not find

invalid on the record, is still entitled to the pre-

sumption of validity accorded any regulation. Hynes v.

Grimes Packing Co., 337 U.S. 86, 101; Thompson v.

Consolidated Gas Co., 300 U.S. 55, 69. See Pet. App.

36. And see Ford Motor Co. v. National Labor

Relation: Board, 305 U.S. 364, 373; Placid Oil Corp.

v. Federal Power Commission, 483 F. 2d 880 (C.A. 5),

certiorari granted sub nom. Mobil Oil Corp. v.

Federal Power Commission (Nos. 73-437, 73-457 and 73-

464, January 14, 1974, and argued, April 17, 1974).

The remand proceedings are currently being conducted

by the Administrator and, when they are completed,

petitioner will have the opportunity to challenge

further the source standards, whether altered or not,

based on the supplemented administrative record.?

4. Petitioner is incorrect in stating that the

Administrator’s establishment of different standards

for different industries is arbitrary and_ not

rationally related to the statutory purpose. Section

111 requires that standards be established on the basis

of the levels achievable with the best adequately

demonstrated system of emission reduction, taking cost

into account. Different industries have different

technical situations and may require different control

systems. Even applying the same systems may yield

different levels of pollution control. The court below

correctly observed that each industry standard must be

?Vacating the standards here would have the effect of

postponing the effective date of the standards from August 17,

1971, (the date of proposal, see 42 U.S.C. 1857c-6(2)) until the

new standards are set—possibly to the competitive detriment to

those who have started or completed construction of plants to

comply with the 1971 standard, and contrary to Congress’ em-

phasis in the Act on expeditious regulation subject to subse-

quent revision.

SSD VO AE PN LIE TG ORIEL AEE IBN E SION SEL: FANE BEEPS BROS PE MEN iN TT oer nel

7

judged by the application of the requirements of Sec-

tion 111 to that industry (Pet. App. 26-27).

Even if it should be found that a standard applied to

one industry is too generous, compared to an otherwise

valid standard imposed on another industry, the remedy

is to make the generous standard more stringent to meet

the strict requirements of Section 111, not to relax

the proper standard. Moreover, the Clean Air Act

specifically calls for the establishment of separate

categories of stationary air pollution sources (Pet.

App. 58), recognizing that each industry may have its

own problems. Petitioner did not object to the

designation of Portland cement plants as one such

category, and does not contest the separateness of

cement technology from that of power plants or other

industries. Especially in these circumstances the

application here of separate regulations for different

categories of pollution sources was proper.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

WALLACE H. JOHNSON,

Assistant Attorney General.

Harry R. SACHSE,

Assistant to the Solicitor General.

EDMUND B. CLarRK,

JAMES R. WALPOLE,

Attorneys.

May 1974.

DOJ-1974-05