Petition for Writ of Certiorari — Plan for Arcadia, Inc. v. Anita Associates
Supreme Court brief1974
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IN THE ;
Supreme Court of the Unite
wine. 4 = $98
T
PLAN FOR ARCADIA, INC., a non-profit corp.,
vs.
ANITA ASSOCIATES, SANTA ANITA CONSOLIDATED,
INC., RUSSELL TRAIN, as Administrator, Environmental
Petitioner,
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
Joun C. McCarTay,
- 100 Pomona Mall West,
Pomona, Calif. 91766,
(714) 629-2521, .
Attorney for Petitioner.
Of Counsel: |
Youna, Henriz & McCartuy, =
PAUL, Hastines, JANorsky & WALKER,
5 : Aan 3
~~ (213) 489-4000.
—
SUBJECT INDEX
Page
RN I ilk cena dadcenpeaiicnscccesnsoisaccieceninsnd 1
EE NEC Tia gee Dee eee 2
ft Ee area Seana nee Denne 2
Statutory Provisions Involved .............02...2...-.-0c-00---- 2
Statement Of the Case on... nanan. 4
Reasons for Granting the Writ .............0.000.0.2....-.-- 8
1. The Decision Below Ignored the Issue Raised
by the Failure of Respondent Administrator
of the Environmental Protection Agency to
Exercise His Authority Under the —e
cy Powers Provision ...................2..0:..0..00---- 8
2. The Decision Below Is a First and Faulty
Construction of the Citizen Suits Provisions
of the Clean Air Act That Will Affect Im-
plementation Plans in Each of the 50 States
aa Sipabe 13
RAI Ss ivechasaccphcnceapbec Insigsnentcoaatntnabenat dias 16
APPENDICES
Appendix 1. Opinion of the United States Court
of Appeals for the Ninth Circuit ........... App. p. 1
Appendix 2. Memorandum Opinion Denying Pre-
liminary Injunction and Dismissing Compiaint .... 4
Appendix 3. Appellants’ Opening Brief ............. 9
Statement of Issues Presented for Review .......... 9
SPINNER TIN CG soon ccs cciconccescccsemsocdaneces. 10
A.. Nature of the Case, ooo... caccccccceeesse 10
B. Summary of the Proceedings to Date ...... 14
At eS I Laatste eae a 16
The Clean Air Act of 1970 Confers Upon Plain-
tiffs the Right to Enjoy Clean Air and the
Right to Bring Suit to Enforce Such Right
When the Responsible Agencies Fail to Do So
eee
A. The Act Was Designed to Benefit Plain-
tiffs
B. Attainment and Maintenance of National
Primary Ambient Air Quality Standards
Are Essential to Protect the Public Health
C. The Agencies Are in Violation of the Act
for Failure to Adopt an Adequate State
Implementation Plan and/or to Promul-
gate Appropriate Regulations to Insure
Attainment and Maintenance of National
Primary Ambient Air Quality Standards..
D. If the Agencies Had Performed Their Du-
ties Under the Act, the Santa Anita Project
Could Not Have Been Started in Its Pres-
ently Planned Form as It Clearly Will
Prevent the Attainment and Maintenance
22
22 .
22
23
of the National eee de Ambient Air Qual-
ity Standards
The “Citizen Suit” Provision of the Act
Was Designed Specifically to Promote Di-
rect Enforcement by Private Citizens
Where the Responsible Administrative
Agencies Have Failed to Take —
ate Action
rh
24
25
Il. Page
Plaintiffs Have Implied Civil Remedies to En-
Oe nn ensues 27
III.
A Private Right of Action Exists in Favor of
Plaintiffs Because the Administrator Refuses to
Exercise His Emergency Powers to Restrain
Santa Anita From Causing or Contributing to
Substantial Endangerment to the Health of
ee Se NINO oo 32
IV.
Relief in the Nature of Mandamus Will Lie to
Compel the Administrator to Perform His Du-
gE REINS SERRE SIRS concealed Sena ee 34
V.
Relief in the Nature of Mandamus Will Lie to
Compel the City Council for the City of Ar-
cadia to Revoke Permits Issued to Santa Anita
and to Compel Appellees Reagan, Maga and
Lunche to Perform Obligations Imposed Upon
the State of California by the Act —.................. 37
VI.
Construction of the Shopping Center Would Be
in Violation of the Fourteenth Amendment .... 38
VII.
The Trial Court Erroneously Concluded That the
Complaint Does Not State a Claim Upon
Which Relief Can Be Granted ..............0......... 38
VII.
No Bond Should Be Required of Plaintiffs as a
Condition for the Issuance of the Injunction .. 43
aa SET SSE ae NV Se net bP ee secpans 44
iv.
TABLE OF AUTHORITIES CITED
Cases Page
Burke v. Compania Mexicana de Aviacion, S.A.,
433 F.2d 1031 (9th Cir. 1970) —..02 2... 10
Carter v. Seamans, 411 F.2d 767 (Sth Cir. 1969)
. 10
J. I. Case Co. v. Borak, 377 U.S. 426 (1964) .. 10
Natural Resources Defense Council v. E.P.A., 475
F.2d 968 (1973) .. 7
People v. United States Department of Agriculture, |
427 F.2d 561 (D.C. Cir. 1970) -....2.0220020.00202.... 10
Riverside v. Ruckelshaus, 4 E.R.C. 1728 (C.D.
Cal. 1972) silertiasllikoapeaodticcdinsicscnieicbucdeneibioe 6
Statutes
Administrative Procedure Act, Sec. 10 -...........0..... 10
Code of Federal Regulations, Title 40, Secs. 50.1-
40.11 7, 14
United States Code, Title 5, Secs. 701-706 ........ 10
United States Code, Title 28, Sec. 1254(1) ...... 2
‘United States Code, Title 28, Sec. 1361 ................ 10
United States Code, Title 42, Sec. 1857(b)(1) .. 11
United States Code, Title 42, Sec. 1857c-4(a)(1)
ae ie actigideisthbaincnpidivacicelipbapegimacsoucaes 6
United States Code, Title 42, "a dasFe-HA) (1)
(B) . I ciateeeraabaniinssnditiiakinebibs teleibiecnigialle 6
United States Code, Title 42, Sec. 1857c-5 ............ 11
United States Code, Title 42, Sec. 1857c-5(a)(1)-
rrr rte ttt eee eee eee ree
Page
United States Code, Title 42, Sec. 1857c-5(a)(2)
(A) (i) SINE: SEES Pen eE EL ORO ae WE SON Re OOO
United States Code, Title 42, Sec. 1857f-1 ...2....:.
United States Code, Title 42, Sec. 1857h-1 ....2, 3,
United States Code, Title 42, Sec. 1857h-2 ...... >,
United States Code, Title 42, Sec. 1857h-2(a) ...
United States Code, Title 42, Sec. 1857h-2(a) (2)
United States Code, Title 42, Sec. 1857h-2(e) ..9,
United States Code, Title 42, Sec. 1857h-2(f)(1)
Supreme Court of the United States
October Term, 1974
UN scdncabsbons
PLAN FOR ARCADIA, INC., a non-profit corp.,
Petitioner,
vs.
ANITA ASSOCIATES, SANTA ANITA CONSOLIDATED, INC.,
RUSSELL TRAIN, as Administrator, Environmental
Protection Agency, RONALD REAGAN, Governor of
‘the State of California, JoHN Maca, Executive Of-
ficer, California Air Resources Board, ROBERT G.
Luncue, Acting Air Pollution Control Officer for
Los Angeles County Air Pollution Control District
_ and City oF ArcapiA City CoUNCIL,
Responder:ts.
Petition for a Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit.
The petitioner, Plan for Arcadia, Inc., respectfully
prays that a writ of certiorari issue to review the Judg-
ment and Opinion of the United States Court of Ap-
peals for the Ninth Circuit entered in this proceeding
on July 10, 1974.
Opinion Below.
The Opinion of the Court of Appeals, 6 ERC 1975
(9th Cir. 1974), appears in the Appendix hereto,
page 1. The Memorandum Opinion Defying Preiim-
inary Injunction and Dismissing Complaint rendered
by the District Court for the Central District of Cali-
fornia also appears in the Appendix, page 4.
alias
Jurisdiction.
The Judgmeni of the Court of Appeals for the Ninth
Circuit was entered on July 10, 1974. A timely peti-
tion for rehearing was denied on September 9, 1974, and
this petition for certiorari is filed within 90 days of
that date. On Sepiember 25, 1974, the Court made its
order staying issuance of mandate to remain in effect
provided this petition is filed on or before October 9,
1974. This Court’s jurisdiction is invoked under 28
U.S.C. §1254(1).
Questions Presented.
1. Whether a private suit may be brought under
the Emergency Powers provisions of the Clean Air Act
of 1970 where the federal Administrator authorized to
abate a pollution source imminentiy endangering the
lives and health of persons fails and refuses to take
action.
2. Whether a private suit may be brought under
the Citizen Suits provisions of the Act or otherwise to
enjoin a private source of air pollution that will prevent
indefinitely the attainment of adopted air quality stand-
ards in an area already in serious violation of such
standards.
Statutory Provisions Involved.
United States Code, Title 42:
§1857 h-1. EMERGENCY POWERS
“Notwithstanding any other provisions of this
Act, the Administrator, upon receipt of evidence
that a pollution source or cumbination of sources
(including moving sources) is presenting an im-
minent and substantial endangerment to the health
a - —
a
of persons, and that appropriate State or local
authorities have not acted to abate such sources,
may bring suit on behalf of the ‘’nited States in
the appropriate United States district court to im-
mediately restrain any person causing or contribut-
ing to the alleged pollution to stop the emission of
air pollutants causing or contributing to such pol-
lution or to take such other action as may be
necessary.”
§1857 h-2. CITIZEN SUITS
“(a) .. . amy person may commence a civil
action on his own behalf (1) against any person
_. . who is alleged to be in violation of (A) an
emission standard or limitation under this Act. . .
or (2) against the Administrator where there is
alleged a failure of the Administrator to perform
any act or duty under this Act which is not dis-
cretionary with such Administrator . . .
“(e) Nothing in this section shall restrict any
right which any person . . . may have under any
statute or common law to seek enforcement of
any emission standard or limitation or to seek any
other relief...
“(f) For purposes of this section, the term
‘emission standard or limitation under this Act’
means—
“(1) a schedule or timetable of comipliance,
emission limitation, standard of performance or
emission standard, or
“(2) a control or prohibition respecting a
motor vehicle fuel or fuel additive,
which in effect under this Act or under an ap-
plicable implementation plan.”
ude
Statement of the Case.
The plaintiff, Plan for Arcadia, Inc., petitioner here-
in, seeks to enjoin the proposed operation of a large
regional shopping center under construction in Arcadia,
California. Petitioner is a non-profit corporation whose
membership consists of thousands of people residing
within two miles of the center.
None of the respondents, consisting of the owners
and builders of the shopping center and the federal,
state and local agencies responsible for administering
the Act, have taken any action under the Act regarding
this project, presumably because California has not yet
adopted the required implementation plan and permit
procedure.
The shopping center is being constructed in the San
Gabriel Valley, 15 miles east of downtown Los Angeles,
California. It is an area that has the most dangerous
motor vehicle-related air pollution in the entire United
States [Clerk’s Transcript Vol. I, p. 56].
The statutory purpose and scheme of the Clean Air
Act are set forth in the Appendix hereto, page 9.
Appellants’ Opening Brief, pages 14-18.
During the past three years two of the primary am-
bient air quality standards established pursuant to the
Act, standards which when exceeded more than one
day per year produce injury to human health, including
respiratory damage and cardiovascular disease, were
exceeded hundreds of days each year.’
1Primary standards for oxidants or ozone (photochemical
smogy were exceeded almost every day of each of the three
months of July, August and September for a total of 223 days
in 1970, 210 days in 1971 and 185 days in 1972. On most of
such days the standards were exceeded by from 3 to 6 times
such permissible levels of air pollution [C.T. Vol. I, pp. 56-
ee ee
Beginning on the proposed opening date, October
14, 1974, the shopping center will generate the con-
centrated traffic of 23,000 motor vehicles each day, re-
sulting in an incredible 219% increase in existing harm-
ful air pollutants in that area [C.T. Vol. I, p. 56].
The addition of such motor vehicle-related air pol-
lutants will by itself cause, among the 50,000 persons
including plaintiff's membership living within two miles
of the shopping center, from 2 to 15 excess deaths
each year, from 2,000 to 4,000 excess episodes of
disease aggravation and from 10,000 to 30,000 excess
episodes of individuals suffering impairment of im-
portant functions of the body,” in the opinion of one
of the nation’s leading medical epidemiologists [C.T.
Vol. I, p. 132, Affidavit of Dr. John R. Goldsmith}.
Further, he felt the upper limits of these estimates should
be used. At no time have any of the respondents con-
sidered such lethal and injurious consequences from
the operation of the shopping center.
Such additional motor vehicle traffic and related
air pollution to be generated by the proposed shop-
57, Affidavit of air pollution specialist, Dr. Joseph V. Behar].
If the shopping center had been in operation the concentrations
of ozone would have exceeded federal standards by 10
to 14 times in the months indicated [C.T. Vol. I, p. 57].
For carbon monoxide, such standards were violated 25 days
in 1970, 32 days in 1971 and 47 days in 1972. It can neither
be seen nor smelled and is most hazardous in the winter months
when ozone conditions are not generally as prevalent [C.T. Vol.
I, p. 56]. If the shopping center had been in operation there
would have been concentrations of carbon monoxide in excess
of permissible federal primary standards in 12 additional months
of ce period, creating a serious health hazard [C.T. Vol. I,
p. 57].
“As many as 4,000 deaths and 4 million illness-related days
off per year are caused each year by auto air pollution in
urban areas of the nation, according to a study by the National
Academy of Sciences”. UPI release, September 5, 1974.
acai
ping center will make it impossible to attain national
primary ambient air quality standards by 1977 as re-
quired by the Clean Air Act of 1970° or within the
foreseeable future in the vicinity of the. shopping cen-
ter and downwind up to ten miles [C.T. Vol. I, p.
56].
Assuming the automobile industry has the technol-
ogy to produce a “clean” car by 1977, it would be
five to six years after that before one-half of the old
cars would be replaced by “clean” ones, by which
time motor vehicle emissions still could not be reduced
in the San Gabriel Valley sufficiently to meet primary
air quality standards.
Obviously, no implementation plan under the Act
could have authorized at this time and in that be-
3(i) S auiaie ai toueein een bo 1971. — ory dead-
line for publication of pro: national primary secondary
ambient air quality standards (“within 30 days after the date
0 (Dec. 31, 1970) of the Clean Air Amendment of
ed»
(ii) $1857 c-4(a)(1)(B). April 30, 1971. Last date for
promulgation of such standards [“no later than 90 days from
publication”]. This deadline was met.
(iti) §1857 c-5(a)(1). January 31, 1972. Deadline for sub-
bent of state implementation plans [within 9 months of 2,
above].
(iv) §1857 c-5(a)(2). May 31, 1972. Deadline for approval
or disapproval of state plans [within 4 months of 3, host
(v) §1857 c-5(c)(3). July 31, 1972. Deadline for federal
Administrator to adopt implementation plan if state fails to do
so [within 6 months of 3, above].
(vi) §1857 c-5(a)(2)(A)(i). July 31, 1975. Deadline for
attainment of adopted primary air quality standards [within 3
age of %¢ above, unless time extended 2 years by procedure in
, below].
(vii) §1857 c-5(e)(1). July 31, 1977. Deadline for attain-
ment of adopted primary air quality standards when extended
for maximum of two years. Confer Riverside v. Ruckelshaus,
4 E.R.C. 1728 (C.D. Cal. 1972). Opinion contained in Exh. “A”
to Appellants’ Opening Brief. Appendix herein, p. 46.
pee, A
leaguered area the unconditional operation of any new
concentrated air pollution source of the magnitude of
this regional shopping center [C.T. Vol. I, p. 57].
The decision of the Ninth Circuit (Appendix, p.
1) discusses none of these uncontroverted facts. All
of them have been known to respondent agencies at
least since December, 1973, if not before.
The Act itself contains mandatory statutory dead-
lines which required respondent agencies to adopt im-
plementation plans, including land use and moving
source controls, by July 31, 1972. See footnote 3, su-
pra. ~
Congress has not amended the Act to alter such
timetable of compliance. Assuredly, no court can do so,
notwithstanding ‘Natural Resources Defense Council v.
E.P.A., 475 F.2d 968 (1973).
Although primary air quality standards for oxidants,
carbon monoxide and four other pollutants were adopt-
ed as required on April 30, 1971, 40 C.F.R. §§50.1-
50.11, no implementation plan for California has yet
been adopted by respondent agencies.
Construction of the shopping center foundations was
begun on June 6, 1973. The within action was filed
on October 23, 1973.
The Court of Appeals affirmed the District Court
denial of petitioner’s application for a preliminary in-
junction and dismissal of the complaint. The Court
held, in short, that because no implementation plan has
been adopted for California, no private right of action
or remedy is yet available under the Act. See Appen-
dix, page 1.
‘sail.
REASONS FOR GRANTING THE WRIT.
1, The Decision Below Ignored the Issue Raised by
the Failure of Respondent Administrator of the
Environmental Protection Agency to Exercise His
Authority Under the Emergency Powers Provision.
This is the first suit under the Act seeking to enjoin
a specific source of motor vehicle-related air pollution.
Considerable attention, both public agency and ju-
dicial, has been given to whether clean air areas can
be dirtied substantially. And then only on a rule-making
level.
Strangely, no attention whatsoever has been given
to the critical situation where the air already is so
dangerously polluted as to imperil the lives and health
of thousands. And now is about to be impacted by a
219% increase. |
Under the Emergency Powers provisions of the Act,
supra, respondent Administrator of the EPA has the
authority to bring suit to prevent the operation of
the shopping center. Each statutory requirement is pres-
ent under the uncontroverted facts of this case:
1. The operation of the shopping center will pre-
sent “an imminent and substantial endangerment to the
health of persons”.
2. The “appropriate State or local authorities have
not acted to abate such source”.
3. The powers are specifically available against
“moving sources” of pollution suca as the traffic to be
generated by the shopping center.
4. The power “to immediately restrain any person
causing or contributing to the alleged pollution” is “not-
a "ta
withstanding any other provision” of the Act. This
means that the reason stated in the decision for deny-
ing petitioner any relief, the fact that California has not
yet adopted an implementation plan, is not applicable.
Petitioner has strenuously contended that the failure
and refusal of respondent Administrator to exercise
his emergency powers provides petitioner with authority
to do so. See Appellants’ Opening Brief, Appendix
herein, page 32 and Petition for Rehearing, page 5.
The decision, in ignoring this issue entirely, states
“Congress has defined precisely the circumstances un-
der which a private suit may be brought under this
Act.” This is totally erroneous. There are at least four
separate bases for a private action against respondent
Administrator for failure to exercise his emergency
powers.
First, although the statute uses the term “may bring
- Suit to restrain any person... or... to stop
the emission of air pollutants”, §1857 h-1, supra (italics
added), we contend that the duty of respondent Ad-
ministrator to at least consider exercising his emergency
powers in this situation is not discretionary. This he
has refused to do.
Accordingly, this suit will lie under the Citizen Suits
provision. §1857 h-2(a)(2), supra.
Three other jurisdictional bases not “defined pre-
cisely” in the Act are available to petitioner under the
Citizen Suits provision, §1857 h-2(e) which provides
“Nothing in this section shall restrict any right which
any person . . . may have under any statute or common
law to seek enforcement of any emission standard or
limitation or to seek any other relief (including relief
against the Administrator or a State agency ).”
—i0—
_ These include 28 U.S.C. §1361:
“The district courts shall have original jurisdiction
of any action in the nature of mandamus to com-
pel an officer of the United States or any agency
thereof to perform a duty owed to the plaintiff.”
See Carter v. Seamans, 411 F.2d 767 (5th Cir.
1969).
Also available is §10 of the Administrative Proce-
dure Act, 5 U.S.C. §701-706.
§702 “A person suffering legal wrong because of
agency action, or adversely affected or aggrieved
by agency action within the meaning of a regular
statute, is entitled to judicial review thereof.”
See People v. United States Department of Ag-
riculture, 427 F.2d 561 (D.C. Cir. 1970).
Lastly, it is a well-settled principle of federal law
that, where necessary to give full effect to Congression-
al purpose and intent, the Courts will imply appropri-
ate civil remedies in favor of a plaintiff who is within
the class of persons intended to be protected by the
legislation and endangered by agency inaction. See J. I.
Case Co. v. Borak, 377 U.S. 426 (1964), and Burke
v. Compania Mexicana de Aviacion, §.A., 433 F.2d
1031 (9th Cir. 1970).
It is true that the emergency powers issue was not
specifically raised before the trial court. And. for sev-
eral valid reasons.‘ See Appellants’ Opening Brief,
Appendix hereto, page 33.
when it could be obtained. anid Mipetandy: ao Oe ae
clear [Rep. Tr., p. 4] and in its Memorandum Opinion
wens
'
;
'
;
'
ary ae
The importance of the Emergency Powers provisions
reach to the heart of the Clean Air Act, whose objec-
tive is “to protect and enhance the quality of the na-
tion’s air resources so as to promote the public health
and welfare and the productive capacity of its popula-
tion”. 42 U.S.C. §1857 (b)(1).
Such powers affect the implementation of this ob-
jective in every state of our nation. If there ever is or
will be a circumstance in the United States in which
the Clean Air Act Emergency Powers provisions are to
apply to lethal motor vehicle-related air pollution, this
is such a case.
No factory or industrial stationary source with such
potential lethal effect from its stack gas would ever
be permitted by respondent Administrator to be oper-
ated.
If the endangered citizens themselves have no “ght
or remedy to act in such an emergency when the re-
spondent EPA Administrator refuses to exercise his
clear authority to do so, the unenforceable Emergency
Powers provision is indeed the death warrant for thou-
sands of Americans.
Unless this Court issues its writ in this matter the
decision below vindicates the illegal inaction of respond-
ent Administrator and of the 48 states who illegally
have refused to adopt moving source implementation
plans mandated by the Act §1857 c-5.
As of June 1, 1974, only Alabama and Florida had
adopted plans which have been approved by the EPA.
[C.T. Vol. I, pp. 136-140 and Appendix herein, p. 4], that it
did not aa the seriousness of air pollution in the area of the
Proposed s|
plaint was based upon its conclusion that in the absence of an
implementation plan for California, petitioner had no judicial
remedy.
pping center but that its decision to dismiss the com-
—12—
Eight other states have adopted plans which have
not been approved by the EPA and ten others, includ-
ing California, have draft regulations in the public
hearing stage but have not adopted any plan. The bal-
ance of 30 states are doing nothing at all to en
the Act.*
| Because the Act gives respondent Administrator
alone emergency powers to act whether or not the states
have implementation plans, his arbitrary refusal to act,
if not subject to judicial review, can critically under-
mine the complex statutory scheme to achieve and main-
tain clean air in the United States.
It is now almost four years since the Act was adopted.
So long as major new pollution sources such as this
massive shopping center are permitted to proceed and
thus benefit from agency inaction, the pressure from pri-
vate commercial interests is to frustrate implementa-
tion plans and thus to perpetuate agency inaction. See
footnote 3, supra. 7
If, on the other hand, operation of this pollution
source were enjoined forthwith, such interests, no long-
er benefiting from agency delays, would join petitioner
and others in urging all states and responsible agencies
to adopt promptly the required plans or regulations.
Thus, those who are now part of the problem would
become part of the solution.
®Telephone conference, August 20, 1974, between
counsel and EPA planner, David Healey, Region 9, San Fran-
cisco.
ee OTS
one eat
a a
8 Na ahr th ema snemat mann *
sil iee.
2. The Decision Below Is a First and Faulty Con-
struction of the Citizen Suits Provisions of the
Clean Air Act That Will Affect Implementation
Plans in Each of the 50 States.
As stated above, only two of the 50 states have
approved implementation plans for attaining the adopt-
ed primary air quality standards by 1977 as mandated
in the Act. All states were required by law to have
such plans approved by May 31, 1972 [1857 c-5
(c)(3)]. See footnote 3, supra.
In denying the right tc petitioner under the Citizen
Suits provisions [42 U.S.C. §1857 h-2] the decision
holds, in effect, that such illegal delays and inaction
leaves citizens totally without any judicial relief whatso-
ever under the Act. Such a ruling dignifies agency in-
action with the authority to abrogate the specific re-
sponsibility mandated by Congress in the Act, a dele-
gation of power alien to our basic concept of justice.
It is factually undisputed that the operation of this
shopping center, commencing on October 14, 1974,
will prevent the attainment of primary’ air quality
standards in the San Gabriel Valley by 1977 or any
reasonable time thereafter.
It is petitioner’s contention that the violation of the
statutory timetable for attaining adopted primary air
quality standards gives petitioner the right to bring the
within citizen suit to enjoin private respondents Anita
Associates and Santa Anita Consolidated, Inc., who
are responsible for such violation (§1857 h-2(e) ).
Support for this view is found in a careful reading
of the definition of “emission standard or limitation”
—14—
which includes both the adopted primary air quality
standards and the timetable for achieving and main-
taining them, the violation of which permits “any per-
son” to “commence a civil action on his own behalf
against any person... .” §1857 h-2(a):
“81857 h-2(f) For purposes of this section, the
term ‘emission standard or limitation under this
Act’ means—
“(1) a schedule or timetable of compliance. . .
“which is in effect under this Act . . . or under
an applicable implementation plan”.
The “schedule or timetable of compliance” refers to
the attainment of primary ambient air quality standards
no later than July 31, 1977 [see footnote 3 above].
That this timetable is “in effect under this Act” rath-
er than “under an implementation plar.” is manifest.
That primary ambient air quality standards are also
“in effect under the Act” rater than “under an imple-
mentation plan” is also manifest 40 C.F.R. §50.1-
§50.11).
If the Act intended to restrict citizen suits only to
violations of “emission standards” as that term is used
in an entirely different part of the Act referring to
motor vehicle exhaust controls [§1857 f-1], it would
have been simple to so state, rather than to employ an
elaborate definition which embraces ambient air quality
standards and the statutory timetable for attaining them.
And if the Act intended, as the decision holds, that
citizen suits would be permitted to enforce violations
of only those standards or limitations, if any, to be
Piel kde ae ksedl
—
ee
as
mer oe
found in an applicable state implementation plan, there
would be no reason to state in the citizen suit provisions
that such standard or limitation means, among other
things, “a schedule or timetable of compliance. . .
which is in effect under this Act ... or under an
applicable implementation plan.” [§1857 h-2(f)(1)]
(Italics added).
The decision disposes of this entire citicial issue in a
footnote comment, “Plaintiffs argue that the national
emission standards may be invoked under (1)(A), but
subsection (f) is clear and against them on this
argument”. See Appendix, p. 2.
The Court of Appeals grounded its decision on a
single issue, “. . . we cannot order the promulgation of
any particular regulation or set of regulations, such as
appellants seek here . . .” Appendix, p. 3. But petitioner
sought no particular regulation or implementation plan.
As emphasized above, any such plan or regulation in
compliance with the Act would necessarily have pro-
hibited at this time and in that area the unconditional
operation of this huge additional pollution source.
Moreover, the decision and respondents concede that
the Citizen Suits provisions of the Act would permit this
type of action by a private party if such plans or reg-
ulations had been promulgated as required but were not
being enforced.
To maintain that citizens in the same position have
no right to sue a private polluter where the agencies’
inaction consists not of failure to enforce their regula-
tions, but failure to promulgate the regulations in the
first place is contrary to logic.
ene, | oe
Conclusion.
For these reasons, a Writ of Certiorari should issue
to review the Judgment and Opinion of the Ninth Cir-
cuit.
Respectfully submitted,
Joun C. McCarthy and
YOUNG, HENRIE & McCCarRTuHy,
and
PAuL, HASTINGS, JANOFSKY & WALKER,
WILLIAM B. CAMPBELL,
Tuomas D. PHILLIPS,
By JoHn C. McCarty,
Attorneys for Petitioner.
Opinien of the United States Court of Appeals
for the Ninth Circuit.
In the United States Court of Appeals for the Ninth
Circuit.
Plan for Arcadia, {nc., a nonprofit corporation, and
Jack Saelid, Plaintiffs-Appellants, v. Anita Associates,
Santa Anita Consolidated, Inc., Russell Train, as Ad-
ministrator, Environmental Protection Agency, Ronald
Reagan, Governor of the State of California, John
Maga, Executive Officer, Califomnia Air Resources
Board, Robert G. Lunche, Acting Air Pollution Con-
trol Officer for Los Angeles County Air Pollution Con-
trol District and City of Arcadia City Council, De-
fendants-Appellees. No. 74-1180.
Appeal from the United States District Court for
the Central District of California.
Filed: July 10, 1974.
Before: CARTER and GOODWIN, Circuit Judges,
and SCHNACKE, District Judge*
SCHNACKE, District Judge:
This action, purportedly brought under the air pol-
lution prevention and control statute, 42 U-S.C.
§§1857 et seq., was dismissed by the court below. We
affirm.
Appellants commenced this action to enjoin the fur-
ther construction and operation by appellees of a large
regional shopping center which, it is claimed, would
produce large quantities of air pollution. They also
sought mandatory orders compelling state and federal
officials to promulgate regulations and plans, pursuant
*Honorable Rolbert H. Schnacke, United States District Judge,
Northern District of California, sitting by designation.
igitliets
to the statute, that would prevent the construction of
pollution-creating developments like that here in-
volved.
The statute charges the states with the initiative in
assuring air quality control and of submitting an im-
plementation plan before December 31, 1970 (sic).
Sections 1857c-2(a), (b); 1957c-5(a)(1).
The primary federal official is the Administrator. If
the state plan submitted to him is not acceptable, he
may issue his own plan in lieu of the state’s, as well as
take other action. Sections 1857c-2(c), 1857¢-5(c) (3).
The record discloses that the state of California has
submitted an implementation plan which has been ap-
proved in part and rejected in part. The area of the
shopping center here involved is presently subject to no
control that would prevent its construction or operation
as appellees intend.
The statute is quite explicit as to actions by private
litigants. “Citizen suits” may be brought under 42
U.S.C. § 1857h-2:
“(1) against any person . . . who is alleged to
be in violation of (A) an emission standard or
limitation under this chapter or (B) an order
issued by the Administrator or a State with re-
spect to such a standard or limitation, or
“(2) against the Administrator where there is al-
leged a failure of the Administrator to perform
any act or duty under this chapter which is not
discretionary with the Administrator.”
Since, as noted, no applicable standards or orders
have been issued, this action will not lie under ( 1).
"Plaintiffs argue that the national emission standards may be
invoked under (1)(A), but subsection (f) is clear and against
them on this argument.
ne seeneeennaennnaasnneaneeed
= ee
Understandably, appellants do not claim that (2) may
be invoked. Rather, they invoke 28 U.S.C. §1361,
which is likewise inapplicable. Undeniably, certain
types of action by the Administrator may be ordered
by the courts. Nat. Res. Def. Coun., Inc. v. Environmen-
tal Prot. Agcy., 475 F.2d 968 (D.C. Cir. 1973). But
we cannot order the promulgation of any particular
regulation or set of regulations, such as appellants
seek here, and once regulations are promulgated, the
sole statutory review is as provided in 42 U.S.C.
§1857h-5(b) (1).
Congress has defined precisely the circumstances
under which a private suit may be brought under this
Act. As the court below correctly determined, appel-
lants do not meet the test.
Affirmed.
jean a
Memorandum Opinion Denying Preliminary Injunction
and Dismissing Complaint.
United States District Court, Central District of Cali-
fornia.
Plan for Arcadia, Inc., etc., et al., Plaintiffs, vs.
Anita Associates, Santa Anita Consolidated, Inc., et
al., Defendants. No. 73-2480-JWC.
Filed: Dec. 12, 1973.
On October 23, 1973, this action was commenced
on behalf of a group of residents and property owners
of the City of Arcadia to enjoin the further construc-
tion in that City of a new shopping center (Santa Anita
Fashion Park) upon the grounds that when completed
this facility would attract such a concentration of ve-
hicular traffic as would raise ambient air pollution
above national air quality standards, established pur-
suant to the provisions of the Clean Air Act 42 U.S.C.
§ 1857, et seq. Plaintiffs further seek to compel the
Administrator to formulate completed air quality im-
plementation plans for the State of California, as con-
templated by the Act.
The plaintiffs are Plan for Arcadia, Inc., a non-
’ profit corporation, whose membership consists of cer-
tain residents and property owners, and Jack Saelid,
an individual who resides in the vicinity of the project.
. . The defendants are the owners and developers of the
land on which the shopping center is being built and
Government officials, both state and local, who have
responsibilities for implementing Clean Air Act stand-
ards.
The matter is now before this court on an ap-
plication for preliminary injunction and a motion to
dismiss as against the Governmental officials.
ye ciaeaiac
The general scheme of the relevant provisions of
this Act follows:
It creates the position of Administrator, who is man-
dated to promulgate regulations establishing national
primary and secondary ambient air quality standards
for certain kinds of air pollutants [Title 42 § U.S.C.
1857c-4]. The states are required to formulate imple-
mentation plans by which the individual states can
reach the national air quality standards promulgated by
the Administrator. The Administrator is to review
these plans and approve or disapprove them, according
to the criteria set forth in the Act. [42 U.S.C. § 1857c-
5]. If the state fails to formulate an acceptable plan
within the period allowed, the Administrator is required
to promptly prepare regulations setting forth an im-
plementation plan for the delinquent state. [42 U.S.C.
§ 1857c-5(c)]. By way of enforcement, private parties
are empowered to bring citizen suits against persons
who are in violation of the regulations promulgated
under the Act, or against the Administrator for failure
to perform non-discretionary duties. [42 U.S.C. 1857h-
2].
California has submitted a proposed plan, which
has been accepted in part by the Administrator. This
plan relates both to stationary sources (“any building,
structure, facility or installation which emits or may
emit any air pollution”) and mobile sources, which
though as yet are not defined, are clearly intended to
relate to motor vehicles, aircraft and the like.
In Natural Resources Defense Council vy. Environ-
mental Protection Agency, 475 F.2d 968 (D.C. Cir.
1973), came the first suggestion that a third source
1Title 42 U.S.C. § 1857c-6(a)(3) specifically so defines the
term “stationary sources”.
cee
——————
iia
should be regulated, namely, a “complex source”, by
which is meant a facility that has or leads to secondary
or adjunctive activity which emits or may emit a pollut-
ant. New regulations promulgated with respect to com-
plex sources specifically list shopping centers as one
kind of “indirect source.” 38 Fed. Reg. 29895. Al-
though it had previously been held in Riverside v.
Ruckelshaus, 4 E.R.C. 1728 (C.D.Cal. 1972) that
the original implementation plan for California should
have been completed by July 31, 1972, the court in
Natural Resources Defenses Council, supra, set up a
new time table ordering the Administrator to review
the maintenance provisions of all state plans in the
light of its decision. Where a state’s plan was disap-
proved, the state would have until April 15, 1973, to
submit a new plan [this date was changed to August
15, 1973, at a later time. See 38 Fed. Reg. 12920
(1973)]. If a state failed to submit a plan by the
deadline, as has occurred here, the Administrator was
to publish a plan for the state within four months
after the deadline date (December 15, 1973). Accord-
ingly, the Administrator has until December 15, 1973,
to promulgate the new portions of the implementation
plan for California.
Since the plaintiffs’ only remedy under the Act is
against persons who are in violation of regulations
promulgated under the Act and since no regulations
have been promulgated with respect to shopping cen-
ters, it follows that no cause of action is stated against
the corporate defendants.
Plaintiffs argue, however, that the shopping center
should come under the stationary source regulations, be-
cause even though referred to as a “complex source”,
it is in fact only one kind of a stationary source. How-
=— =
ever, the discussion of complex sources in the regula-
tions, in addition to defining that term, clearly distin-
guishes between stationary sources and complex sources
[38 Fed. Reg. 6279-80] and plaintiffs’ argument in
this respect is without merit.
Plaintiffs also argue that even in the absence of reg-
ulations controlling complex sources, the Act clearly
precludes the construction of any project which would
interfere with, or prevent attainment and maintenance
of, national primary and secondary air quality stand-
ards. [42 U.S..C §§ 1857c-5 and 1857c-6].
This court does not so read these statutes. Contrary
to plaintiffs’ contentions, these sections of the Act do
not clearly preclude construction of projects which
might interfere with the attainment and maintenance
of air quality standards, rather they provide merely for
the promulgation of implementation plans and the set-
ting of standards of performance for stationary sources.
Defendants Ronald Reagan, Governor of the State of
California, and John Maga, Executive Officer of the
State Air Resources Board, have been sued as officers
of the State of California. The complaint seeks to com-
pel California to comply with § 110 of the Clean Air
Act [42 U.S.C. § 1857c-5], which requires each state
to adopt and submit to the Administrator “a plan which
provides for implementation, maintenance and en-
forcement” of national primary ambient air quality
adopted by the Administrator. In the first place, there
is no judicial remedy provided in the Act or elsewhere
for the failure of the state to adopt and submit a plan.
The only consequence of a state’s failure to submit a
plan is that the Administrator, then, has the duty to
impose a plan upon the state, and no other remedy
——— ————
RE Te
against the state exists. Secondly, the plaintiffs, as pri-
vate citizens, are given no authority under the Act io
bring such an action. The motion to dismiss on behalf
of these defendants, therefore, should be granted.
As to the defendant, Russell Train, as Administrator
of the Environmental Protection Agency, it is apparent
from what has been said above that this action is pre-
mature.
It appears to this court that not only does the com-
Piaint fail to state facts upon which relief can be
granted, but that there are no facts which can be al-
leged within the perimeters of the complaint which
would afford the plaintiffs a basis for recovery. This ac-
tion is, therefore, dismissed as to all parties.
DATED: December 12, 1973.
/s/ Jesse W. Curtis
JESSE W. CURTIS
United States District Judge
:oaaliilicss
No. 74-1180
IN THE
United States Court of Appeals
FOR THE NINTH CIRCUIT
PLAN FOR ARCADIA, INC., a nonprofit corporation, and
JACK SAELID,
Plaintif{s-A ppellants,
vs.
ANITA ASSOCIATES, SANTA ANITA CONSOLIDATED,
INC., RUSSELL TRAIN, as Administrator, Environmental
Protection Agency, RONALD REAGAN, Governor of the
State of California, JOHN MAGA, Executive Officer, Cali-
fornia Air Resources Board, ROBERT G. LUNCHE, Acting
Air Pollution Control Officer for Los Angeles County Air
Pollution Control District and CITY OF ARCADIA CITY
COUNCIL,
Defendants-A ppellees.
On Appeal From the United States District Court for the
Central District of California.
Honorable Jesse W. Curtis, Judge.
APPELLANTS’ OPENING BRIEF.
STATEMENT OF ISSUES PRESENTED FOR REVIEW.
This action focuses the following questions of first
impression which are of national concern, and which
affect the lives, health and safety of thousands of citi-
zens:
1. Does the Clean Air Act of 1970, 42 U.S.C.
§ 1857, authorize direct action by private citizens
against persons creating sources of air pollution
which endanger lives, health and safety and
which will prevent attainment or maintenance of
| —10—
national primary ambient air quality standards as
promulgated in 40 C.F.R. §§ 50.1-50.11 (attain-
ment and maintenance of which standards ‘are
necessary to protect public health, 42 U.S.C.
§ 1857c-4)7
2. Does such an action exist where the Ad-
ministrator of the Environmental Protection Agen-
cy and the State of California are in violation of |
the Act for failure to promulgate and enforce a
plan of implementation and/or regulations de-
‘Signed to attain and maintain national primary
ambient air quality standards? _
3. Does the Act authorize such action by pri-
vate citizens upon an undisputed factual showing
that the responsible agencies refused to act pur-
suant to available emergency authority where
there is imminent end«agerment to their lives,
health and safety and where the Act was passed
for their benefit and protection?
.4. Did the trial court err in refusing to issue
a preliminary injunction? |
STATEMENT OF THE CASE.
A. Nature of the Case.
In this action Appellants, Plan for Arcadia, Inc.
, and Jack Saelid (hereinafter collectively “plaintiffs”), |
seek to enjoin the further construction or operation of a
72-acre, regional shopping center being erected in Ar-
cadia, California. Plan for Arcadia, Inc. is a nonprofit
corporation whose membership consists of thousands
of residents and property owners residing in the city of
Arcadia in the vicinity of the proposed shopping center.
Jack Saelid is an individual who resides in the city of
——
ee, aaa
Arcadia within approximately 300 yards of said shop-
ping center. Appellees Anita Associates and Santa Ani-
ta Consolidated, Inc. (hereinafter collectively “Santa
Anita”) are the owners, developers and builders of
said shopping center.
Plaintiffs assert that said shopping center is being
constructed in violation of the Clean Air Act of 1970,
42 U.S.C. § 1857. Pursuant to the requirements of 42
U.S.C. § 1857c-4, national primary ambient air quality
standards with respect to certain lethal air pollutants
have been established and are set forth in 40 C.F.R.
§§ 50.1-50.11. By definition the attainment and main-
tenance of these standards are necessary to protect the
public health. 42 U.S.C. § 1857c-4.
The uncontroverted facts shown* by plaintiffs in-
clude the following:
1. The area where this major shopping center
is being constructed in the San Gabriel Valley
fifteen miles east of downtown Los Angeles has
probably the most dangerous smog in the entire
United States.
2. The present lethal and injurious effects of
this smog have not been determined by defendants.
3. The vehicle traffic to be generated by this
huge project (23,000 vehicles each day) will
cause an incredible 219% increase in existing
harmful air pollutants in the area.
4. In the opinion of one of the nation’s lead-
ing medical epidemiologists, addition of such mo-
tor vehicle related air pollutants will, by itseif,
*For the of this appeal said showing stands uncon-
troverted. See discussion in Subpart B, infra, ummary of the
Proceedings to Date.
fet Sa
cause from 2 to 15 excess deaths a year among
the 50,000 persons living within two miles of the
shopping center, from 2,000 to 4,000 excess epi-
sodes of disease aggravation, and from 10,000 to
30,000 excess episodes of individuals suffering
impairment of important functions of the body.
Further, he felt the upper limits of these estimates
should be used [Affidavit of Dr. John R. Gold-
smith, Cl. Tr. Vol. I, p. 132].*
Consequently, the Santa Anita project poses a direct,
imminent threat to the lives, health, safety and well-
being of plaintiffs.
Indeed, for some of the plaintiffs the permit issued
by the City of Arcadia for the construction of this
project is a death warrant.
Under the Act, the Administrator of the Environ-
mental Protection Agency and the State of California
have the direct duty and responsibility for attainment
and maintenance of the national primary ambient air
quality standards. In accordance with the mandatory
timetable set forth in § 1857c-5 of the Act, a State of
California plan of implementation or, in the alternative,
federal regulations promulgated by the Administrator
designed to attain and maintain the primary standards
were to have been in effect no later than July 31,
1972. It is not disputed that both the Administrator
and the State of California are in violation of the Act
for failure to meet this deadline. Such was the holding
in Riverside v. Ruckelshaus, 4 E.R.C. 1728 (C.D. Cal.
1972) (opinion attached hereto as Exhibit “A”). Even
*All references to the Clerk’s Transcript shall be abbreviated
as “Cl. Tr.”. References to the Reporter’s Transcript will be ab-
breviated as “R. Tr.”.
|
ee
<n ernenn
—,
at this late date more than one and one-half years
after the July 31, 1972 deadlinz, the State of Califor-
nia has still not submitted an adequate plan of imple-
mentation. And while the Administrator recently signed
“complex” or “indirect source” regulations, 39 Fed.
Reg. 7269 (Feb. 25, 1974), those regulations will not
take effect until January 1, 1975 and will apply only
to indirect sources “commenced” after that date. As
such they will have no application to the Santa Anita
project.
By their unlawful failure to meet the mandatory
deadlines of the Act for promulgating a plan of imple-
mentation or appropriate regulations, the Administra-
tor and the State of California have not only frus-
trated congressional intent, but have jeopardized the
lives, health and safety of plaintiffs. As the intended
beneficiaries of the Act, plaintiffs now seek to enjoin
Santa Anita from proceeding with its project unless
and until it can be demonstrated that the same will
not prevent attainment or maintenance of primary am-
bient air quality standards, and further seeks an order
requiring the remaining public servant appellees (here-
inafter collectively referred to as “the Agencies”) to
perform their duties under the Act by taking any ac-
tion necessary to halt construction or operation of the
shopping center until it can be demonstrated that the
same will not prevent attainment or maintenance of
primary ambient air quality standards.
Notwithstanding the citizen suit provision of the Act,
42 U.S.C. § 1857h-2, which was designed specifically
to give private citizens a remedy where the responsible
Agencies fail to act, and in the teeth of the well set-
tled principle of federal law that the courts will fashion
appropriate civil remedies where necessary to give ef-
cig
fect to congressional intent, Santa Anita and the Agen-
cies assert that plaintiffs have no remedy whatever un-
der the Act, even though the Santa Anita project
will prevent attainment or maintenance of the primary
standards and is an immediate and serious threat to the
lives, health and safety of plaintiffs. As the trial court
agreed with this position in dismissing plaintiffs’ com-
plaint and denying their application for a preliminary
injunction [Cl. Tr. Vol. I, p. 136], the central is-
sue now joined on this appeal is whether or not such a
private right of action does exist. If so, it is respectfully
submitted that it is abundantly clear that in reversing
the trial court’s dismissal of the complaint, the order
denying plaintiffs’ application for a preliminary injunc-
tion should also be reversed.
B. Summary of the Proceedings to Date.
Petitioners filed a complaint [Cl. Tr. Vol. I, p. 1],
and applied for a temporary restraining order on Oc-
tober 23, 1973. The application for temporary restrain-
ing order was denied by Judge Jesse W. Curtis on
October 24, 1973, and plaintiffs’ application for a pre-
liminary injunction was heard on November 5, 1973.
At this time, Judge Curtis observed that this is a case
of first impression and suggested that the hearing be
treated as a proceeding on a motion for summary judg-
ment so that the issue could be presented to this court
on appeal as soon as possible. In this connection
Judge Curtis stated:
“Gentlemen, the application for a preliminary
injunction, it seems to me here, reaches the meat
of the whole controversy. It would seem to me
that we ought to be hearing this matter on a
motion for summary judgment.
om
“I might as well be frank with you. My present
inclination is to deny it for legal and substantive
grounds. Since this is a rather new field, I really
feel that some opinion ought to be written. But
I don’t feel like writing an opinion on a denial
of an application for a preliminary injunction and
then have you turn around and file a motion for
summary judgment and have to grant that. I would
be inclined to grant that.
“I think what you want is to get this matter
on appeal as soon as you can, if that is the way
‘I am going to decide the matter, and I expect it
will be. I suggest we get it on appeal as soon as
possible without spinning our wheels here.” [R.
Tr., p. 4].
The parties stipulated to this procedure [R. Tr., pp. 5,
20-21], and the parties having so stipulated, Judge
Curtis stated that if he ruled in favor of defendants, he
would assume that all of the allegations in the plain-
tiffs’ affidavits were true [R. Tr., pp. 20-21].
The matter was then taken under submission and on
December 12, 1973, the court issued a memorandum
opinion [Cl. Tr. Vol. I, p. 136] denying plaintiffs’
application for a preliminary injunction and dismissing
the complaint without leave to amend.
On January 7, 1974, plaintiffs applied to the trial
court for and were denied an injunction pending ap-
peal [R. Tr., p. 36]. At this time plaintiffs waived any
right they might otherwise have had to findings of fact
and conclusions of law and the court ruled that the
same would not be required inasmuch as the court had
ruled upon the matter as “essentially a motion to dis-
miss.” [R. Tr., p. 40]. Thereafter, in order that the
ian ks
matter might be decided on its merits before this court
at the earliest possible time, plaintiffs and Santa Anita
stipulated to a waiver of findings of fact and conclu-
sions of law and further stipulated to a waiver of any
procedural defects which might exist in the manner
in which the judgment was reached [Cl. Tr. Vol. I,
p. 156].
On January 9, 1974, plaintiffs filed their Notice
of Appeal [Cl. Tr. Vol. I, p. 143] and on February
1, 1974, they applied to this court for an injunction
pending appeal. On February 25, 1974, said applica-
tion was denied, but this appeal was expedited, and
the clerk was directed to place the matter on an early
argument calendar (Order, filed Feb. 25, 1974). On
March 9, 1974, plaintiffs served their Motion to the
Honorable William O. Douglas for Injunction Pend-
ing Appeal, which motion is still pending.
C. The Facts.
The City of Arcadia where Santa Anita’s shopping
center is being built “has the most dangerous smog
in the State of California . . . and probably in the
nation.” [Affidavit of Dr. Joseph V. Behar, chemist
and air pollution specialist, Cl. Tr. Vol. I, p. 56].
Further, “(t]he eastern portions of the South Coast
Air Basin receiving as they de a substantial amount of
pollutants from metropolitan areas to the west, are the
most heavily polluted by motor vehicle exhaust of any
place in the state (or elsewhere). Accordingly, devel-
opments which would add to the pollution exposure
of such an area are especially hazardous.” [Goldsmith
Affidavit, Cl. Tr. Vol. I, p. 130].
In that area during each of the past three years the
Clean Air Act primary ambient air quality standard
for oxidants or ozone (photochemical smog), a stand-
ard which when exceeded more than one day per year
produces injury to human health, including respiratory
damage and cardiovascular disease, “was exceeded in
Arcadia almost every day of each of the three months
July, August and September for a total of 223 days
in 1970, 210 days in 1971 and 185 days in 1972.
Because there is no horse racing during these months
these figures do not include traffic generated by such
activity. Such averages for oxidants or ozone show that
the standards were exceeded most of these days by
from three to six times federal standards. This is what
is commonly known as smog.” [Behar Affidavit, Cl.
Tr. Vol. I, pp. 55-56]. “In addition, carbon monox-
ide in the vicinity of the race track violated federal
standards 25 days in 1970, 32 days in 1971 and 47
days in 1972. It can neither be seen nor smelled and
is most hazardous in the winter months when ozone
conditions are not generally as prevalent.” [Behar Affi-
davit, Cl. Tr. Vol. I, p. 56].
Presently under construction by Santa Anita adja-
cent to their race track in Arcadia is a major regional
shopping center. It will contain four major department
stores, 125 other retail shops and 5,039 vehicle parking
spaces [Complaint, Cl. Tr. Vol. I, p. 2]. Scheduled for
completion on October 1, 1974, it will attract 23,000
automobiles each weekday [Behar Affidavit, Cl. Tr.
Vol. I, p. 55].
Notwithstanding a related state action brought on
May 1, 1973 by plaintiffs, the foundations for the
shopping center were commenced after the City of Ar-
cadia issued a foundations-only permit on June 6, 1973.
The foundations were completed on October 26,
1973, three days after this action was filed. Construc-
\
be i
tion continues above ground pursuant to a building
permit issued: July 10, 1973, by the City of Arcadia
[Affidavit of Ernie Weber, Santa Anita project man-
ager, Cl. Tr. Vol. I, p. 65].
Immediately upon opening for business on October
1, 1974,
“[t]he addition of the traffic from the proposed
shopping center will cause an additional 219% in-
crease in these harmful pollutants over existing
peak hourly concentrations from existing traffic in
the area. . .. Such additional traffic to be gen-
erated by the proposed shopping center will make
it impossible to attain federal primary standards
within the foreseeable future in the vicinity of the
shopping center and downwind up to 10 miles.”
[Behar Affidavit, Cl. Tr. Vol. I, p. 56].
When the shopping center is placed in operation the
additional automobile traffic will have immediate lethal
effect. Dr. John R. Goldsmith, one of the nation’s
leading medical authorities on the adverse effects of
smog and carbon monoxide on human beings, was
asked under oath “to estimate how much increase in
illness or extra fatalities might be attributable to an
increase in motor vehicle emissions in this area... .”
[Goldsmith Affidavit, Cl. Tr. Vol. I, p. 131]. He re-
sponded by stating:
“In my judgment it is reasonable to anticipate
that with such an increase in air pollution from
this project that the population of approximately
50,000 in this area might experience from 2 to
15 excess deaths per year, from 2,000 to 4,000 ex-
cess episodes of disease aggravation and from 10,-
000 to 30,000 more of the individuals might show
—
some impairment of important functions of the
body.” [Goldsmith Affidavit, Cl. Tr. Vol. I, p.
132].
Dr. Goldsmith also stated: “In view of the knowl-
edge that the San Gabriel Valley has the most severe
motor vehicle related air pollution in the country, it is
reasonable to use the upper limits of these estimates
in order to provide a base for estimating the current
motor vehicle-pollution-related health damage”. [Gold-
smith Affidavit, Cl. Tr. Vol. I, p. 131].
These uncontroverted statistics and opinions consti-
tute a shocking evaluation of this private project not
made public by Santa Anita or the agencies. The build-
ing permit thus becomes a death warrant for 15 people
each year and a license to impair indefinitely the health
of thousands in the area.
No action whatsoever regarding this shopping cen-
ter has been taken by the Agencies. In fact, the statu-
tory deadline of July 31, 1972 for establishing regula-
tions or implementation plans passed without compli-
ance by any of the Agencies. There has been no ex-
tension of this deadline and no court has the authority
to grant such extension or to abrogate the singular emer-
gency provision in the Clean Air Act and thus to de-
prive plaintiffs of the protection afforded by the Act
to their lives, health and safety. 42 U.S.C. § 1857c-5,
Riverside v. Ruckleshaus, 4 E.R.C. 1728 (C.D. Cal.
1972); Natural Resources Defense Council v. Environ-
mental Protection Agency, 475 F.2d 968 (D.C. Cir.
1973).
No factory or plant or industrial stationary source
with such potential lethal effect from its stack gas
would ever be permitted by the Agencies to be con-
=
structed or operated. Thus, even though the Agencies
have failed to promulgate plans of implementation or
regulations covering the Santa Anita project, the emer-
gency powers available to appellee Train (the Admin-
istrator) pursuant to 42 U.S.C. § 1857h-1 apply also
to “moving sources” and are “notwithstanding any
other provisions of this Act.” This means that such
powers must be exercised whether or not implementa-
tion plans or regulations have been adopted.
It is clear that Santa Anita is proceeding with the
construction of this huge shopping center as rapidly as
possible and is spending large sums of money in an
effort to complete the project at the earliest possible
date [Weber Affidavit, Cl. Tr. Vol. I, pp. 63-66].
Thus, if this Court finds that plaintiffs have stated a
claim under the Clean Air Act, the trial court’s denial
of a preliminary injunction should be reversed as well.
Otherwise, Santa Anita will complete its project be-
fore a final determination is reached in this action.
The courts will then be faced with a fait accompli,
depriving them as a practical matter of their jurisdic-
tion. Only by such a preliminary injunction can the
relative positions of the parties be preserved and the
plaintiffs be protected from having their rights effec-
tively foreclosed by the passage of time.
Finally, it is manifest from the record in this case -
that although it has been over three years since the
Act was adopted, none of the Agencies intend to take
any affirmative action to enforce the Act against Santa
—e.
=
Anita until ordered to do so by a court of law, re-
gardless of the danger to the lives, health and safety
of plaintiffs. So long as major new pollution sources
such as this massive shopping center are permitted to
proceed and thus benefit from agency inaction, the
pressure from private commercial interests is to perpet-
uate such agency inaction. If, on the other hand, con-
struction ‘of this shopping center were enjoined forth-
with, such interests, no longer benefiting from agency
delays, would join plaintiffs in urging the responsible
Agencies to adopt promptly the required plans or reg-
ulations. Thus, those who are now part of the problem
would become part of the solution.
A. The Act Was Designed to Benefit Plaintiffs.
The express purpose of the Act is “to protect and
enhance the quality of the Nation’s air resources so as
to promote the public health and welfare and the
productive capacity of its population. . . .” 42 U.S.C.
§1857(b)(1). The House Interstate and Foreign Com-
merce Committee reported the 1970 Clean Air Amend-
ments with the following statement:
“The purpose of the legislation reported unani-
mously by your committee is to speed up, expand,
and intensify the war against air pollution in the
United States with a view to assuring that the air
we breathe throughout the Nation is wholesome
once again.”
House Report No. 91-1146, June 3, 1970,
1970 U.S. Code Congressional & Adminis-
trative News, page 5356 [Emphasis added].
B. Attainment and Maintenance of National Primary Ambient
Air Quality Standards Are Essential to Protect the Public
Health.
The Act requires the Administrator of the Environ-
mental Protection Agency to establish national pri-
mary ambient air quality standards for dangerous pol-
lutants, the attainment and maintenance of which
standards “are requisite to protect the public health.”
42 U.S.C. § 1857c-4. Pursuant to this requirement the
a
|
Administrator on April 30, 1971, published regulations
establishing national standards for ambient air quality
with respect to six specified air pollutants (sulfur
dioxide, particulate matter, carbon monoxide, photo-
chemical oxidants, hydrocarbons and nitrogen di-
oxide). 40 C.F.R. §§ 50.1-50.11.
C. The Agencies Are in Violation of the Act for Failure to
Adopt an Adequate State Implementation Plan and/or to
Promulgate Appropriate Regulations to Insure Attainment
. and Maintenance of National Primary Ambient Air Quality
Standards. .
42 U.S.C. § 1857c-5 establishes the mechanism by
which the national ambient air quality standards are
to be attained and maintained. The states were to pre-
sent implementation plans designed to achieve the goals
of the Act. If a state failed to submit an implementa-
tion plan, or if its implementation plan was inadequate
in any respect, the Administrator was to promulgate
satisfactory regulations. The timetable specified in the
Act provides that such regulations were to have been
in force throughout the country by July 31, 1972.
The State of California, however, failed to submit a
plan adequately providing for the attainment of the
national primary air quality standards with regard to
several important pollutants, including photochemical
oxidants (smog) in the Los Angeles area. Nor did the
Administrator remedy this failure with adequate regu-
lations by July 31, 1972. This failure was found to be
a violation of the Action Riverside v. Ruckelshaus,
supra.
Despite Riverside v. Ruckelshaus and the passage of
more than a year and a half since the statutory dead-
line, adequate regulations are still not in force in the
pam.” Se
Los Angeles area. Presently regulations regarding
“complex” or “indirect” sources, such as the Santa
Anita shopping center, are not scheduled to be in ef-
fect until January 1, 1975 and in any event will not
apply to projects commenced prior to that: date. 39
Fed. Reg. 7269, Feb. 25, 1974.
D. If the Agencies Had Performed Their Duties Under the
Act, the Santa Anita Project Could Not Have Been Started
im Its Presently Planned Form as It Clearly Will Prevent
the Attainment and Maintenance of the National Primary
Ambient Air Quality Standards.
As discussed in some detail above at pages 8-10,
the San Gabriel Valley, where Santa Anita’s project
is being built, now ‘has the most severe air pollution in
the entire United States, regularly experiencing con-
centrations of pollutants several times the national pri-
mary ambient air quality standards. The record also
shows that the concentrated automobile traffic to be
generated by this center will further increase the level
of pollution in this area by 219%. There is no dispute
that the construction of this center will render attain-
ment and maintenance of the national primary ambient
air quality standards in this area impossible. Thus, it
is clear that no set of regulations prepared in com-
Pliance with the Act could have permitted the construc-
tion of this project. Had the regulations required by
the Act been in force in Los Angeles on July 31, 1972,
Santa Anita’s project, not commenced until the summer
of 1973, would have been subject to those regulations
and could not have been approved in its presently
planned form.
—25—
E. The “Citizen Suif” Provision of the Act Was Designed
Specifically to Promote Direct Enforcement by Private
Citizens Where the Responsible Administrative Agencies
Have Failed to Take Appropriate Action.
42 U.S.C. § 1857h-2 provides for the enforcement
of the Act by private citizens against the Administrator
or against any person alleged to be in violation of
“, . + am emission standard or limitation under this
chapter . . .” It has been shown that the construction of
the Santa Anita project will prevent the attainment
and maintenance of the national primary air quality
standards. Certainly such standards as required by
§ 1857c-4 of the Act and promulgated in 40 C.F.R.
$§ 50.1-50.11 are emission standards or limitations
under the Act. As such they may be enforced by pri-
vate citizens under section h-2.
Moreover, Santa Anita agrees that the citizen suit
provisicns of the Act would permit this type of action
by a private party to enjoin a private polluter if ade-
quate regulations had been promulgated but were not
being enforced by the Agencies. To maintain that citi-
zens in the same position have no right to sue a private
polluter where the Agencies’ inaction consists not of
failure to enforce their own regulations, but of failure
to promulgate the regulations in the first place, is con-
trary to logic. Such a result would contravene the con-
gressional purpose embodied in the citizen suit provi-
sion. Senator Muskie, presenting these amendments to
the Senate, stated:
“Finally, the bill extends the concept of public
participation to the enforcement process. The citi-
SRP errceeens ree REECE ETE OREN
waitin.
zen suits authorized in this legislation would apply
important pressure. Although the Committee does
not advocate these suits as the best way to achieve
enforcement, it is clear that they should be an ef-
fective tool”. 116 Cong. Rec. 32903 (1970).
Further, Senator Spong said:
“We have carefully preserved the right of the
public to participate in the pollution abatement
process. In one significant respect, we have
broadened that right. We have written into the
bill a section authorizing citizens to bring suits on
their own behalf to assure enforcement of stand-
ards, emission requirements or implementation
plans.” 116 Cong. Rec. 32919 (1970).
Thus, the importance of the citizen suit provision
has been summarized as follows:
“The citizen suit provision is a tremendous ad-
dition to the enforceability of air pollution stand-
ards. Inadequate manpower to enforce standards
has long been a major problem in controlling
pollution. Instead of the few enforcement person-
nel that governmental agencies provide, this provi-
sion would remedy the problem by making every
person a potential enforcement official. As a prac-
tical matter, the government is not likely to com-
mit the resources to enforce standards adequately,
but citizens’ suits can make them effective.” Fed-
eral Control of Stationary Source Air Pollution,
2 Ecology L.Q. 283, 306 (Spring, 1972).
= =
II
Plaintiffs Have Implied Civil Remedies
to Enforce the Act.
The citizen suit provisions of the Act aside, it is
clear that plaintiffs have implied civil remedies to en-
force the same. It is a well settled principle of federal
law that even when federal legislation makes no spe-
cific reference to a private right of action, where neces-
sary to give full effect to congressional purpose and
intent, the courts will fashion appropriate civil reme-
dies in favor of a plaintiff who is within the class of
persons intended to be protected by the legislation and
is suffering the type of harm which the legislation was
designed to prevent. The bellwether case of J. J. Case
Co. v. Borak, 377 U.S. 426 (1964) is illustrative. In
this action it was held that a private right of action ex-
isted in favor of a corporate stockholder under §§ 14
(a) and 27 of the Securities Exchange Act of 1934.
In answering the defendants’ contention that Congress
made no specific reference to a private right of action
in § 14(a), the court stated:
“While this language [legislative history] makes
no specific reference to a private right of action,
among its chief purposes is ‘the protection of in-
vestor,’ which certainly implies the availability of
judicial relief where necessary to achieve that re-
sult.” 377 U.S. at 432.
The court went on to hold:
“We, therefore, believe that under the circum-
stances here it is the duty of the courts to be
alert to provide such remedies as are necessary to
make effective the congressional purpose. . . . It
is for the federal courts ‘to adjust their remedies
—
SO as to grant the necessary relief’ where federally
secured rights are invaded. ‘And it is also well
settled that where legal rights have been invaded,
and a federal statute provides for a general right
to sue for such invasion, federal courts may use
any available remedy to make good the wrong
done’.” . . . [omitting citation]. 377 U.S. at 433.
Similarly, in Burke v. Compania Mexicana de Avia-
cion, S.A., 433 F.2d 1031 (9th Cir. 1970), it was
held that a discharged employee of the airline had a
private right of action pursuant to § 2 of the National
Railway Labor Act. As the thrust of § 2 is to make it
unlawful for a carrier to interfere with the organiza-
tion of its employees by unions, the defendant carrier
argued that only the union had a remedy under the
Act. Further, inasmuch as criminal sanctions were im-
posed for violations of § 2, it was argued that the crim-
inal remedy was exclusive. In rejecting these conten-
tions, the court first held that since the carrier could
effectively prevent the organization of a union by fir-
ing employees sympathetic thereto, unless the wrongful-
ly discharged employee himself were allowed to bring
action, there would be “a gap in the enforcement of
that section which would blunt the effectiveness of
the congressional purpose.” 433 F.2d at 1033. The
court then added:
“Nor is Burke’s remedy limited to institution of
criminal proceedings under section 2 (Tenth). In
the absence of a clear congressional intent to the
contrary tue couris are free to fashion appropri-
ate civil remedies based on the violation of a
penal statute where necessary to ensure the full
effectiveness of the congressional purpose . . .
Spe =
a
Where the interest asserted by the plaintiff is
within the class that the statute was intended to
protect, the harm of the type the statute was in-
tended to forestall and the statutory criminal pen-
alty inadequate to fully protect the asserted inter-
est, a civil action for damages arises by implica-
tion.” 433 F.2d at 1033-1034.
The legal principles discussed in Borak and Burke
have now been applied to a wide variety of federal
acts. E.g., The National Banking Act, Deitrick vy.
Greaney, 309 U.S. 190, reh. denied, 309 U.S. 697
(1940); The Federal Communications Act, Reitmeister
v. Reitmeister, 162 F.2d 691 (2d Cir. 1947); The Rail-
way Labor Act, Tunstall vy. Brotherhood of Locomotive
Firemen and Enginemen, 323 U.S. 210 (1944); The
Civil Aeronautics Act, Fitzgerald v. Pan American
World Airways, 299 F.2d 499 (2d Ciz. 1956); The
Rivers and Harbors Act, United States v. Perma Pav-
ing Co., 332 F.2d 754 (2d Cir. 1964); Hill-Burton
Act, Euresti v. Stenner, 458 F.2d 1115 (10th Cir.
1972); Wagner-Peyser Act, Gomez vy. Florida State
Employment Service, 417 F.2d 569 (5th Cir. 1969).
In the instant case there can be no doubt that plain-
tiffs are the intended beneficiaries of the Clean Air
Act, that they are threatened with just the type of
harm which the Act sought to prevent, and that court
action is rm. cy to protect their rights. Indeed, the
instant c: stronger than either Borak or Burke
because « citizen suit provision contained in the
Act. In the foregoing we have discussed the applica-
bility of subparagraph (a) of § 1857h-2 to the in-
stant case. But even if the narrow, restrictive interpre-
tation of this section urged by Santa Anita were adopt-
— =
ed, we further note the language of subparagraph (e)
of § 1857h-2, which provides:
“Nothing in this section shall restrict any right i
which any person (or class of persons): may have :
under any statute or common law to seek en-
forcement of any emission standard or limitation
or to seek any other relief (including relief against
the Administrator or a State agency).” [Emphasis
added].
This language is certainly stronger than that which the
Supreme Court relied upon in the Borak case to im-
ply a private right of action. Thus, as the court in
Borak stated:
“*The power to enforce implies the power to
make effective the right of recovery afforded by
the Act. And the power to make the right of
recovery effective implies the power to utilize any
of the procedures or actions normally available to }
the litigant according to the exigencies of the par-
ticular case.’” 377 U.S. at 433-434. [Emphasis in
original].
Finally, Gomez, supra, illustrates the applicability of
the doctrine of implied private rights of action to legis-
lation which contemplates agency enforcement. Un- '
der the Wagner-Peyser Act of 1933 and regulations |
i
promulgated by the Secretary of Labor. state officials
are charged with protecting the interests of migrant
farm workers by making sure that employers meet
certain job standards. The question presented on ap-
peal was whether or not Gomez, a worker, had a direct
private right of action against the state officials and
his employer where the job standards were not met. |
a a *
a
In holding that private civil remedies were available
against both, the court held:
“There being no explicit indication in the reg-
ulations or the Act that the workers were to
have the opportunity to protect such conferred
interest is not decisive since the existence of such
an explicit grant of a remedy is not necessary. A
civil remedy may be given to those protected by
Statutes or regulations by implication.” 417 F.2d
575-76.
Further, answering the contention that the only rem-
edy against the state officials rested with the Secretary
of Labor by cutting off funds, the court stated:
“It is unthinking that Congress, obviously con-
cerned with people, would have left the Secre-
tary with only the sanction of cutting off funds to
the state. Moreover, the private civil remedy is a
} method of policy enforcement long honored ex-
| plicitly in statutes and by implication with the
help of courts. Congress more and more commits
to individuals, acting as a private Attorney Gen-
eral, the effectuation of public rights through re-
lief to individuals.” 417 F.2d at 576.
Likewise, F itzgerald and Euresti, supra, illustrate
analogous circumstances in which private rights of ac-
tion were implied where necessary to carry out Con-
gressional intent even though the act in question was
supposed to be administered and enforced by an ad-
ministrative agency.
42 U.S.C. § 1857h-1 provides:
Emergency Powers
health of persor + and that appropriate State or
local authorities have not acted to abate such
sources, may bring suit on behalf of the United
in the appropriate United States district
court to immediately restrain any person causing
or contributing to the alleged pollution to Stop the -
emission of such pollution or to take such other
action as may be necessary.”
The Administrator has failed to exercise his emer-
gency powers presumably because he was unaware of
the serious, imminent and substantial danger the po-
tential automobile emissions from Santa Anita’s shop-
ping center pose to the lives and health of the thou-
sands of persons in the immediate vicinity. The reason
wrnereescenrermcrmenene nn |
contatiiiemeteiieiibanideaenatemeinae :
=—
this information was not available to him was be-
cause Santa Anita and the Arcadia City Council did
not make such information public at any time.
In response to Santa Anita’s argument that plaintiffs
should be precluded from urging the emergency provi-
sion on appeal because it was not argued when the
matter was heard by the trial court, we call to this
court’s attention that the full extent of the danger mak-
ing it clear that an emergency situation exists was not
known to plaintiffs at the time of the hearing before
the district court on November 5, 1973. At that hear-
ing plaintiffs asked for and were granted permission to
file the affidavit of a medical epidemiologist as soon
as it could be obtained while the matter was under
submission. Only upon obtaining the affidavit of Dr.
Goldsmith thereafter, filed with the trial court on No-
vember 16, did plaintiffs obtain the specific facts with
respect to the endangerment of health which make it
clear that an emergency situation exists. Thus, these
facts were brought to the attention of the trial court
and defendants at the earliest possible time and while
the case was still under submission. And none of the
appellees objected to the filing of the Goldsmith af-
fidavit while the case was under submission.
Finally, it is well settled that an appellate court may
in its discretion, in the public interest, or to prevent a
miscarriage of justice, consider issues not raised in the
trial court. E.g., United States v. Latrobe Constr. Co.,
246 F.2d 357, 362 (8th Cir.), cert. denied, 355 US.
890 (1957).
At the November 5 hearing the trial court stated
that it did not dispute the seriousness of air pollution
in the vicinity of the proposed shopping center, but
that its principal concern was whether plaintifts were
arene eR EEE ER AE EOEETS
a
afforded any judicial remedy wider the Act, and that
it had all but decided to dismiss the compiaint [R. Tr.,
p. 4]. And in its Memorandum Opinion [Cl. Tr. Vol.
I, pp. 136-140] the court made clear that its decision
was indeed grounded on the conclusion that in the
absence of a plan of implementation or regulations
plaintiffs have no judicial remedy under any provision
of the Act.
It is apparent, however, that the emergency provi-
sion authorized the Administrator to act “notwith-
standing any other provision” of the Act. Obviously
this means just what it Says: that the Administrator
could and should restrain the construction and opera-
tion of this major new source of motor vehicle emis-
sions even though no implementation plan or regula-
tions have been adopted and solely on the uncontra-
dicted evidence of the harmful effect such emissions
will have on thousands of people.
IV.
Relief in the Nature of Mandamus Will Lie to Compel
the Administrator to Perform His Duties Under
the Act.
28 U.S.C. § 1361 states:
“The district courts shall have original jurisdic-
tion of any action in the nature of mandamus to
compel an officer or employee of the United States
or any agency thereof to perform a duty owed to
the plaintiff.”
Some courts have read this jurisdictional grant to
provide only a remedy subject to all the restrictions of
’
:
6
= a
a traditional mandamus action. See, e.g., Carter v.
Seamans, 411 F.2d 767, 733 (Sth Cir. 1969), cert.
denied, 397 U.S. 941 (1970). The traditional require-
ments are that (1) the plaintiff have a clear right to
the relief sought, (2) the defendant have a clear duty
to perform the act in question, and (3) there be no
other adequate remedy available. Yahr v. Resor, 339
F.Supp. 964, 967 (E.D.N.C. 1972). The duty at issue
must also be “ministerial” rather than discretionary.
United States v. Walker, 409 F.2d 477, 481 (9th Cir.
1969). Even under this restrictive view of the remedy
available under § 1361, plaintiffs are entitled to such
relief against the Administrator in this action.
As discussed above, plaintiffs are clearly among the
class of people who are entitled to receive the benefits
from the performance of the Administrator’s duties as
required by the Act. The duty of the Administrator is
also clear. The Act sets out definite nondiscretionary
obligations on his part to provide regulations which
will result in attainment and maintenance of the na-
tional ambient air quality standards either by approval
of a state implementation plan or by promulgation of
regulations of his own. Thus, it was held that the Ad-
ministrator had breached a nondiscretionary duty by
not publishing proposed regulations for transportation
controls for the Los Angeles region by July 31, 1972.
Riverside v. Ruckelshaus, supra.
It is not within the Administrator’s discretion
to choose not to act as all and to permit the further
degradation of the air by refusing to review or assess
a ae
the impact of major new sources, such as Santa Anita’s
shopping center. As it is now clear that the Adminis-
trator has no intention whatever of revicwing or regu-
lating Santa Anita’s project, plaintiffs have no ade-
quate remedy other than by this action.
Moreover, some courts have seen § 1361 as a
broader jurisdictional grant to Carry out the mandate
of § 10 of the Administrative Procedure Act.
“While the statute is couched in terms of man-
damus action, its liberalizing purpose, to remove
technical objections that existed outside the Dis-
trict of Columbia, was intended to permit District
Courts generally to issue appropriate corrective
orders where Federal officials are not acting with-
in the zone of their permissible discretion but are
abusing their discretion or otherwise acting con-
trary to law, and hence to entertain a civil action
under § 10 of the Administrative Procedure Act.”
Peoples v. United States Departiaent of Agricul-
ture, 427 F.2d 561, 565 (D.C. Cir. 1970).
Section 10 of the Administrative Procedure Act pro-
vides in part:
“A person suffering legal wrong because of
agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant
Statute, is entitled to judicial review thereof.” 5
U.S.C. § 702.
The plaintiffs in the present case have suffered legal
wrong because of the inaction of the Administrator,
and thus should be entitled to judicial review under
the Administrative Procedure Act.
pen
v
Relief in the Nature of Mandamus Will Lie to Compe!
the City Council for the City of Arcadia to Revoke
Permits Issued to Santa Anita and to Compel
Appellees Reagan, Maga and Lunche to Perform
Obligations Imposed Upon the State of California
by the Act.
A federal court has jurisdiction to provide injunctive
relief against state and local government entities or of-
ficials for violations of federal law. Shellburne, Inc. vy.
New Castle County, 293 F.Supp. 237 (D. Del. 1968).
This jurisdiction is not limited to the imposition of
negative injunctive relief, but extends as well to positive
mandatory relief against state and local officials. See
e.g., United States Servicemen’s Fund v. Shands, 440
F.2d 44 (4th Cir. 1971) (Manager of County Audi-
torium ordered to permit plaintiff to use auditorium
where denial of use was violation of plaintiff's civil
rights).
The Act places duties on states, most particularly
the duty to prepare, submit and enforce a Satisfactory
implementation plan. 42 U.S.C. § 1857c-5. The Admin-
istrator’s regulations specify further responsibilities of
the states or their local authorities. See generally, 40
C.F.R. Part 51. The fact that the Act does not con-
tain sanctions for noncompliance does not in any way
derogate from these duties. Those whom these duties
are intended to benefit, therefore, are entitled to bring
an action in the nature of mandamus to compel their
performance.
a) a
a
VI
' Construction of the Shopping Center Would Be in
Violation of the Fourteenth Amendment.
It is undisputed that the concentration of air pollu-
tants in the San Gabriel Valley area is currently many
times the federal standards established for the mainte-
nance of public health. It is also undisputed that the
effect of Santa Anita’s shopping center will be to dra-
matically raise the concentration of air pollutants in the
immediate vicinity and to cause death and serious injury
to the health of thousands each year who live or work
nearby. :
The construction of this nonessential project and the
consequent threat to lives‘in the area are made possible
by the issuance of building permits by the Appellee
City of Arcadia. In issuing such permits, the City ig-
nored known standards of ambient air quality and
failed to consider the adverse impact on the public
health of its citizens through motor-vehicle-related air
pollution.
Thus the Agencies through inaction and appellee
City through issuance of building permits are responsi-
ble for endangering the lives, health and safety of
plaintiffs, all in violation of the Fourteenth Amendment
to the United States Constitution.
VIL. | |
The Trial Court Erroneously Concluded That the Com-
plaint Does Not State a Claim Upon Which Relief
Can Be Granted.
As discussed above, pages 17-18, Congress clearly in-
tended to encourage private citizen suits as an added
arm of enforcement. Further, as is shown, page 17,
the national primary ambient air quality standards
SS
=
are emission standards or limitations which can be
/ enforced by private citizens pursuant to 42 U.S.C.
§ 1857h-2. The trial court erroneously concluded that
the citizen suit provision could be employed only to
enforce regulations promulgated by the Administrator
[Cl. Tr. Vol. I, p. 138]. In so holding it apparently
did not even consider the question of whether or not
the primary ambient air quality standards, which are
the bedrock of the entire legislative scheme, are en-
forceable under the citizen suit provision.
Further, adoption of the trial court’s reasoning
would Icave a gaping loophole in the citizen suit provi-
sion in contravention of congressional intent. For if it
is clear that citizens may bring private actions to en-
force regulations promulgated by the Administrator as
an added means of enforcing the Act, by the stronger
reasoning it is also clear that citizens have a right to
bring private actions to enforce the Act where the Ad-
ministrator has not even promulgated the regulations
required by the Act in the first place. Under such cir-
cumstances, all the more reason, and the more neces-
sity, for private citizens suits.
Moreover, the trial court’s opinion that plaintiffs
have no judicial remedy in the absence of a plan of
implementation or regulations is contrary to an opinion
of the Attorney General for the State of California
rendered on December 18, 1973, six days after the trial
court’s decision. In response to an inquiry from Appellee
Maga, Executive Officer of the California Air Re-
sources Board, the Attorney General concluded:
“California’s air pollution control districts pres-
ently are authorized to regulate complex sources
of air pollution for the purpose of denying authori-
eltiicie
ty to construct such sources where the emissions
indirectly generated by such sources would prevent
the attainment or maintenance of federal or state
air quality standards.” Op. Atty. Gen. SO 73-43.
Had Appellee Maga’s counsel, the Attorney General,
advised the trial court of his impending formal opinion
(published Jan. 4, 1974) the trial court might logically
have concluded that plaintiffs did have a judicial rem-
edy under applicable law governing the state agency
defendants. One can only assume that had the Attor-
ney General’s opinion been supportive of the trial
court’s position, counsel for Appellee Maga would have
brought the same to the attention of the trial court.
The trial court also neglected to consider, or even dis-
cuss, the well settled principle of federal law that even
whete federal legislation does not explicitly set forth
civil remedies for private individuals, when necessary
to insure the full effectiveness of congressional intent
the courts will imply a private right of action where
Congress intended to protect the interest asserted by
the plaintiff and the harm being done is of the type
which the statute intended to forestall. Neither the cases
cited by plaintiffs nor the applicability of the principle
for which they stand are discussed in the trial court’s
opinion. :
The trial court also erroneously held that plaintiffs’
action against the Administrator was premature, and
in effect concluded that the Administrator was under no
obligation to promulgate regulations relating to complex
sources in the Los Angeles area until December 15,
1973. The trial court reasoned that the deadline of
July 31, 1972, the date mandated by § 1857c-5 for
promulgation of all state implementation plans or fed-
ES ian
eral regulations, was superseded and further extended
by judicial fiat in National Resources Defense Council
v. Environmental Protection Agency, 475 F.2d 968
(D.C. Cir. 1973). The court also erroneously conclud-
| ed that this decision for the first time created the re-
quirement that “complex sources” be regulated.
These conclusions misread the Act and the Natural
Resources decision. The Act itself quite clearly estab-
lishes the timetable which required the Administrator
to promulgate regulations by July 31, 1972. Contrary
to the interpretation of the trial court in its Memoran-
dum Opinion, the court in Natural Resources made it
clear that the Act did not authorize the Administrator
to delay promulgation of transportation controls and
that in so doing he had acted “unlawfully”. Thus, the
timetable which the court set up for promulgation of
the long overdue regulations did not alter the fact that
the Administrator was in violation of the Act for his
failure to promulgate these regulations earlier.
Moreover, although the Administrator was slow to
recognize it, the Act itself (not the decision in Natural
Resources) clearly requires control over “complex” or
“indirect” sources such as the Santa Anita shopping
center. As he finally acknowledged, compliance with
the clear mandate of the Act required “provisions which
will permit the review, and provide the authority to
prevent, the construction, modification, or operation of
complex sources at a location where emissions associat-
ed with such source would result in violation of a
national standard or the State’s control strategy.” 38
Fed. Reg. 6279, March 8, 1973.
| The trial court, enmeshed in this tangle of dates and
court decisions, also missed the thrust of plaintiffs’ con-
oa ee
tentions on this point. Plaintiffs do not seek an order
establishing yet another timetable for the promulgation
of long awaited, long overdue regulations. Nor do they
quarrel with the deadlines which have been imposed
in Riverside and Natural Resources. But rather, plaintiffs
assert that Santa Anita’s project, destructive to the
health and well-being of thousands of citizens, should
be stopped until such time as the Agencies perform
their obligations under the Act by promulgating and
applying to this project regulations which will insure
attainment and maintenance of the national primary
ambient air quality standards.
The need for court action is highlighted by the in-
adequacy of the “indirect” source regulations finally
promulgated by the Administrator in February of this
year. 39 Fed. Reg. 7269, Feb. 25, 1974. These
regulations will apply only to indirect sources com-
menced after January 1, 1975. As these regulations will
not apply to the Santa Anita project commenced much
earlier, the Administrator is still in violation of the Act
for having failed to promulgate regulations covering
projects now under construction which are known
sources of pollution, and which, as in the instant case,
will prevent attainment or maintenance of primary
standards.
A source of pollution gains no vested right to pol-
lute because regulations take effect after it has been
commenced. To the contrary the Act clearly contem-
plates that regulations will be applied to existing
sources. See, ¢.g., 42 U.S.C. § 1857c-6(d); § 1857c-
7(c).
— a
—
No Bond Should Be Required of Plaintiffs as a
Condition for the Issuance of the Injunction. .
Where plaintiffs have sought compliance with either
the National Environmental Policy Act or California
Environmental Quality Act no bond has been required
of them as a condition to obtaining an injunction halt-
ing construction. None was required, or oniy a nom-
inal bond, in the following cases:
Natural Resources Defense Council v. Morton,
337 F.Supp. 167, 3 E.R.C. 1473 (D.D.C.
1971): $100 bond;
Friends of Mammoth v. Mono County Board
of Supervisors, 8 Cal.3d 247 (1972): no
bond;
Keith v. Volpe, 352 F.Supp. 1324 (C.D. Cal.
1972); no bond;
Environmental Defense Fund, Inc. v. Corps of
Engineers, 331 F.Supp. 925 (D.D.C. 1971):
$1 bond (Tennessee-Tombigbee Waterway);
Environmental Defense Fund, Inc. v. Corps of
Engineers, 324 F.Supp. 878 (D.D.C. 1971):
$1 bond;
West Virginia Highlands Conservancy v. Island
Creek Coal Co., 441 F.2d 232, 236 (4th
Cir. 1971): $100 bond; |
Wilderness Society v. Hickel, 325 F.Supp. 422
(D.D.C. 1970): $100 bond (Trans-Alaska
Pipeline).
The court in NRDC ». Morton, supra, although not-
ing that federal judges have great discretion with re-
spect to requiring bonds, held that requiring such bonds
as
would stifle the intent of NEPA. The court added
that public interest would be far more gravely damaged
by the failure of the courts to rigorously and consis-
tently enforce NEPA than by any damage to defend-
ants. And in this case, to compare the endangered
health and lives of thousands of affected residents
with the financial investment of the owners and devel-
opers of the shopping center would be a grotesque exer-
cise.
Conclusion.
As it is clear from the allegations of that complaint
and the supporting affidavits of Behar and Goldsmith
that plaintiffs have a private right of action under
the Act against Santa Anita and the Agencies, it is
respectfully submitted that the decision of the trial
court dismissing the complaint for failure to state a
claim should be reversed, and the case should be re-
manded to the trial court for trial on the merits. In
addition, it is respectfully submitted that based upon
the showing made by plaintiffs, the trial court’s denial
of plaintiffs’ application for a preliminary injunction
should also be reversed.
By the unlawful and unjustified failure of the Agen-
cies to perform their duties under the Act, and by
Santa Anita’s callous disregard for the lives, health
and safety of plaintiffs, appellees have thrown the
gauntlet at the feet of this court. In a similar context,
the Court of Appeals for the District of Columbia
answered the challenge where Judge Skelly Wright
wrote:
“Several recently enacted statutes attest to the
commitment of the Government to control, at
long last, the destructive engine of material ‘prog-
ress’. |[footnoting to the Clean Air Act as well
=
as other environmental legislation]. But it remains
to be seen whether the promise of this legislation
will become a reality. Therein lies the judicial
role . . . Our duty, in short, is to see that im-
portant legislative purposes, heralded in the halls
of Congress, are not lost or misdirected in the
vast hallways of the federal bureaucracy.” Calvert
Cliffs’ Coordinating Comm. v. United States Atom-
ic Energy Com’n, 449 F.2d 1109, 1111 (D.C.
Cir. 1971).
We urge this court to accept the challenge in the
instant case. Otherwise, it is clear that as to plaintiffs
the Act will remain as it has been since it was passed
—a literary monument to the good intentions of the
United States Congress but of no meaning to the citi-
zens whom it was intended to protect and benefit. Like
Shakespeare’s description of life—“Full of sound and
fury, signifying nothing.”
’ Joun C. McCartuy and
YounG, Henrie & McCartuy,
PAUL, HASTINGS, JANOFSky &
WALKER,
WILLIAM B. CAMPBELL,
THOMAS D. PHILLIPs,
Attorneys for Plaintiffs-A ppellants.
— a
EXHIBIT A.
Riverside v. Ruckelshaus, U.S. District Court, Cen-
tral District of California.
City of Riverside; City of San Bernardino; The Re-
gional Antipollution Authority, a joint-powers agency;
Desert People United, a nonprofit corporation; Edward
Mehren, and Christopher J. Diebenkorn v. William D.
Ruckelshaus, as Administrator, Environmental Protec-
tion Agency. No. 72-2122-IH, November 16, 1972.
Full Text of Opinion
HILL, J.: |
The above cause came on regularly for hearing on
October 30, 1972 and November 6, 1972, upon plain-
tiffs’ Motion for Preliminary Injunction and defendant's
Motion to Dismiss and Motion to Stay; the Court,
with the agreement of counsel for all parties, invoked
Rule 65(a) (2) of the Federal Rules of Civil Proce-
dure; and the Court after hearing the evidence and
having considered said motions, affidavits and memo-
tranda with respect thereto, and having heard the argu-
ments of counsel, now makes the following findings
of fact and conclusions of law:
FINDINGS OF FACT
1. Plaintiffs filed a Complaint on September 6,
1972, for a preliminary and permanent injunction and
a mandamus order pursuant to Title 5, United States
Code, Section 702 and Title 28, United States Code,
Sections 1331, 1337 and 1361 claiming that defend-
ant, William D. Ruckelshaus, as Administrator of the
Environmental Protection Agency, had breached a non-
discretionary duty imposed upon him by Section 110
of the Clean Air Act of 1970, 42 U.S.C. § 1857c-5,
—
and seeking to have this Court order the defendant to
prepare and publish an implementation plan for the
South Coast Air Basin showing that the national pri-
mary ambient air quality standards for nitrogen oxides,
particulates and photochemical oxidants will be met in
* the Basin within the time prescribed by law. The Com-
plaint also sought reasonable attorneys’ fees.
2. Plaintiffs filed a Motion for Preliminary Injunc-
tion on September 6, 1972, requesting that the de-
fendant, Administrator, be enjoined immediately to pre-
pare and publish such an implementation plan for the
South Coast Air Basin.
3. Attached by plaintiffs to the Motion for Pre-
liminary Injunction were the affidavits of eight resi-
dents of the South Coast Air Basin, including medical
doctors, indicating that air pollution in the Basin is
presently a severe problem, that adverse health effects
have resulted therefrom, and that plaintiffs had actively
sought solutions to the problem and were injured by the
Administrator’s failure to propose an implementation
plan.
4. On October 6, 1972, the United States, on be-
half of the Administrator, moved to dismiss the action
on the ground that the Court lacks jurisdiction because
the plaintiffs did not give notice to the Administrator
60 days prior to initiating the action, as required by
Section :304(b) (2) of the Clean Air Act of 1970,
42 U.S.C. § 1857h-2(b)(2), and regulations pursuant
thereto.
5. The United States, on behalf of the Adminis-
trator, moved on October 13, 1972, to stay the ac-
tion on the grounds that the Administrator had already
fulfilled many of the responsibilities to which the Com-
—48-—
plaint was directed and had ‘publicly committed him-
self to fulfill the balance of those responsibilities by
February 15, 1973; attached to the motion of defend-
ant to stay the action was the affidavit of Mr. Irwin
Auerbach, Director of Program Planning and Review,
Office of Air and Water Programs, United States En-
vironmental Protection Agency.
6. At a hearing on the motion of plaintiffs for a
preliminary injunction and on the motions of defend-
ant to dismiss or, alternatively, to stay this action, the
Court received the testimony of Mr. David Souten, an
employee of Region IX of the United States Environ-
mental Protection in San Francisco, California, whose
work responsibility is to review and propose necessary
modifications to the implementation plan submitted by
the State of California to the Environmental Protection
Agency pursuant to Section 110 of the Clean Air Act
of 1970, 42 U.S.C. § 1857c-5; Mr. Souten is an
engineer with considerable experience in the field of
air pollution control.
7. On or about February 23, 1972, the Adminis-
trator received from the State of California an imple-
mentation plan to achieve the Federal national ambient
air quality standards within the various air quality con-
trol regions in California.
8. On May 31, 1972, the Administrator an-
nounced his disapproval of large portions of the Cali-
fornia plan.
9. Certain regulations proposed by the Adminis-
trator on September 22, 1972, to correct deficiencies
in the California implementation plan (37 Fed. Reg.
19812-19815, 19829-19835) apparently completed the
plan with respect to the South Coast Air Basin (i.e.,
eee
=—
the Metropolitan Los Angeles Intrastate Air Quality
Control Region) for meeting the particulate and nitro-
gen oxide Federal national ambient primary standards
by July of 1975, but did not set forth the necessary
transportation controls to meet the photochemical oxi-
dant standard.
10. The Administrator subsequently announced in
the Federal Register of September 22, 1972, that he
would propose appropriate transportation controls for
the Metropolitan Los Angeles region by February 15,
1973.
THE CLEAN AIR ACT OF 1970
11. The Clean Air Act of 1970 crzated a new
federal program “to protect and enhance the quality
of the nation’s air resources so as to promote the pub-
lic health and welfare and the productive capacity of
its population . . .” 42 U.S.C. § 1857(b)(1). The
Act requires each state to adopt an implementation
plan specifying the manner in which national primary
and secondary ambient air quality standards will be
achieved and maintained within each air quality con-
trol region in such state within three years from the ap-
proval of such plan. If a state fails to submit a satisfac-
tory implementation plan, the Act requires the Ad-
ministrator to develop such a plan, and he has broad
authority to enforce an implementation plan with civil
and criminal penalties.
12. The Clean Air Act establishes firm deadlines
for actions to be taken by a state and by the Ad-
ministrator in furtherance of the goal of clean air.
(a) Within 30 days after December 31, 1970,
the Administrator of EPA was required to pub-
lish proposed regulations prescribing national pri-
—
mary and secondary ambient air quality standards
for each pollutant for which air quality criteria
had been issued. On January 31, 1971 air qual-
ity criteria had been issued for carbon monoxide,
sulfur dioxide, nitrogen oxides, particulates and
photochemical oxidants.
(b) Within 90 days after publication of the
proposed regulations, the Administrator of EPA
was required to promulgate by regulation the pro-
posed primary and secondary air quality stand-
ards “with such modifications as he deems ap-
propriate.” 42 U.S.C. § 1857c-4(a)(1)(B).
(c) Within nine months after promulgation of
the standards, each state was required to submit
to the Administrator of EPA an implementation
plan providing for achieving the national primary
air quality standards in each air quality region.
42 U.S.C. § 1857c-5(a)(1).
(d) Within four months after the date of sub-
mission of such an implementation plan, the Ad-
ministrator was required to approve or disap-
prove it. 42 U.S.C. § 1857c-5(a)(2).
(e) The Administrator was entitled to approve
a state implementation plan only if he found that
it provided for the achievement of national pri-
mary ambient air quality standards “as expedi-
tiously as possible, and in no case later than three
years from the date of approval of such plan.”
_ In order to meet the statutory target date, the
state plans were required to include emissions lim-
itations, schedules and timetables for compliance,
and “such other measures as may be necessary
to insure attainment and maintenance of such
— =
primary or secondary standard, including, but not
limited to, land use and transportation controls.”
42 U.S.C. § 1857c-5(a)(2)(B).
(f) Section 110(c) of the Clean Air Act, 42
U.S.C. § 1957c-5(c), provides in pertinent part
as follows:
“The Administrator shall, after consideration
of any State hearing record, promptly prepare
and publish proposed regulations setting forth
an implementation plan, or portion thereof, for
a State if—
(2) the plan, or any portion thereof, sub-
mitted for such State is determined by the Ad-
ministrator not to be in accordance with the re-
quirements of this section.
The Administrator shall, within six months af-
ter the date required for submission of such plan
- +» promulgate any such regulations unless, prior
to such promulgation such State has adopted a
plan . . . which the Administrator determines to
be in accordance with the requirements of this
section.” .
Thus, the Act requires that the Administrator.
promulgate regulations to replace any portion of
a state plan he disapproves within two months
of the date of disapproval: In this case by July
31, 1972.
a
CONCLUSIONS OF LAW
1. This Court has jurisdiction over the parties and
the subject matter.
2. Plaintiffs admittedly failed to give the Adminis-
trator 60 days notice before filing this action, as re-
quired by subsection 304(a)(2) of the Clean Air Act
of 1970, 42 U.S.C. § 1857h-2(a)(2). The Court con-
cludes that the provisions of subsection (e) of that
section do not apply in this case, since this is a suit
against the Administrator to compel him to perform a
non-discretionary duty under the Act and therefore
covered by subsection (a)(2). Although this construc-
tion would give the Administrator an additional 60
days after each of the firm deadlines set by Congress
in which to perform the various non-discretionary duties
imposed under the Clean Air Act, the statutory lan-
guage appears to require this result.
| [1] 3. There has been substantial compliance and
actual constructive compliance by plaintiffs with the
sixty-day notice provision, 42 U.S.C. § 1857h-2(b)(2),
in that:
1) Filing of the complaint herein on September
6, 1972 and personal service of the complaint on
the Administrator constituted actual notice of the
plaintiffs’ demand for action by the Administrator.
. 2) Sixty days elapsed between the filing date
and the date that hearing on plaintiffs’ request
for injunction was complete and this Court ren-
dered its judgment.
3) During that sixty day period the Adminis-
trator had all the beneficial effect of the sixty day
notice provision, so the purposes of the provision
were fulfilled.
a
4) During the sixty day period in which this
action has been pending, the Administrator not
only failed to promulgate the plan as requested
by plaintiffs, he reiterated in the Federal Register
of September 22, 1972 his intention not to do so
until February 15, 1973.
[2] 4. By not publishing proposed regulations for
transportation controls for the Metropolitan Los An-
geles Intrastate Air Quality Control Region by July
31, 1972, the Administrator breached a non-discretion-
ary duty under the Clean Air Act of 1970, 42 US.C.
§ 1857c-5(c).
5. None of the justifications or excuses for delay
alleged by the Administrator are valid under the statute.
6. Judgment for plaintiffs is granted on the merits,
and the defendant is ordered to prepare and publish
in the Federal Register by no later than January 15,
1973, regulations setting forth an implementation plan
| for attaining the national primary ambient air quality
standard for photochemical oxidants in California, in-
cluding all necessary transportation controls and land
use controls. Such proposed regulations shall demon-
Strate that the national primary standard for photo-
| chemical oxidants shall be attained within three years
of the date of final adoption, or. if a request for a two-
year extension is or has been made by the Governor
of California and thereafter approved by the Adminis-
trator pursuant to § 1857c-5(c)(1) of the Clean Air
Act, no later than five years from the date of adoption.
7. The court declines to award plaintiffs costs or
attorneys’ fees since the action is one against the U.S.
Government.
ot SA hh a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.