# Petition for Writ of Certiorari — Plan for Arcadia, Inc. v. Anita Associates > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0987%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 419 U.S. 1034 ## Text 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