Brief for the Respondent in Opposition — Plan for Arcadia, Inc. v. Anita Associates

SUBJECT INDEX

Page

a ARI ERE IRE ST eee et 1

fi RS LER S aes BISA CN Sst Peel omen 2 4

The Clean Air Act Creates No Judicial Remedy

to Compel State Respondents to Adopt and

Submit an Adequate Implementation Plan ...... 4

II

No Cause of Action Exists to Compel State Re-

spondents to Halt Construction or Operation

OF the Shopping COmeee roca cecccecccencce 6

CN sistant cchackecadescasbcblecsssoas a ERR See oe ae &

TABLE OF AUTHORITIES CITED

Cases Page

A & H Transportation, Inc., Petition of, 319 F.2d

69 (4th Cir. 1963), cert. denied 375 U.S. 924

(1963)

Asherman v. Bales, 273 Cal.App.2d 707 (1969) ....

ee 6,

City of Campbell v. Mosk, 197 Cal.App.2d 640

SA aoa

McCarthy v. Watt, 89 F.Supp. 841 (D. Mass.

1950)

Miguel v. McCarl, 291 U.S. 442 (1934)

Morgan v. Null, 117 F.Supp. 11 (S.D. N.Y. 1953)

Moses v. Kennedy, 219 F.Supp. 762 (D. D.C.

| tee tha aaa aa

New York Technical Institute of Maryland v. Lim-

burgh, 87 F.Supp. 308 (D. Md. 1949)

O'Malley v. Chrysler Corporation, 160 F.2d 35

Se aa

Riverside v. Ruckelshaus, 4 E.R.C. 1728 (C.D.

a Rdieeieetnksansneseseose

Shelburne v. New Castle County, 293 F.Stop.

237 (D. Del. 1968)

United States Servicemen’s Fund v. Shands, 440 F.

Ss } Eee

Wilson v. Sharp, 42 Cal.2d 675 (1954) 0.

Federal Register

38 Federal Register 31232 (November 12, 1973)

eee

39 Federal Register 1025 (January 4, 1974) _......

39 Federal Register 1843 (January 15, 1974) _....

6

7

7

6

6

Miscellaneous Page

88 Statutes at Large, p. 246 -........... 7

1974 United States Code Congressional and Ad-

ministrative News, pp. 1163, 1675 _..................... 7

Statutes

Clean Air Act of 1970, Sec. 110 ....................... 4

Clean Air Act of 1970, Sec. 110(c) -.20000000 eee. 4

Clean Air Act of 1970, Sec. 3064 ..................... ,

Energy Supply and Environmental Coordination

roe be |) SRR es Se eee eee a 7

United States Code, Title 5, Secs. 701-06 —............ 5

United States Code, Title 28, Sec. 1361 ................ 5

United States Code, Title 42, Sec. 1857 —2............ 1

United States Code, Title 42, Sec. 1857c-5 _....... 4

United States Code, Title 42, Sec. 15857c-5(a)(1)

sciences tdeh di leas itidampnbiltehaiaigunpecknonpianentnlaniatastceasae 3

United States Code, Title 42, Sec. 1857c-5(c). ...... 4

United States Code, Title 42, Sec. 1857c-5(c)(3)

dhiicu ts telticnael pnapecaccubesincctseumivibdstkceaaiiaen tauiNalbiiin 3

United States Code, Title 42, Sec. 1857h-2 _.......

ashicisinanvendiesn dactansdpecebonpncndcuda Udeandaendasadeceianieas Se

United States Code, Title 42, Sec. 1857h-2(a)(1)

secon DEAS G RAN atlecinstosicacsinildiabainisainciaimnie 4

United States Code, Title 42, Sec. 1983 _................ 5

IN THE

Supreme Court of the United States

October Term, 1974

No. 74-398

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, Joun 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,

Respondents.

Brief of Respondents Governor Reagan and Executive

Officer Maga in Opposition to Petition for Wa of

Certiorari

Preliminary Statement

Petitioner, Plan for Arcadia, Inc., commenced this

action to enjoin further construction and operation by

the non-governmental respondents of a regional shop-

ping center in the City of Arcadia, State oi California.

Petitioner asserts that the shopping center is being con-

structed in violation of the Clean Air Act of 1970

(42 U.S.C. § 1857 et seq.) in that it constitutes a com-

par. ae

plex source of air pollution which will prevent attain-

ment and maintenance of federal ambient air quality

standards. ‘

Additionally, petitioner seeks mandamus relief

against the Administrator of the Environmental Pro-

tection Agency, the Governor of the State of Califor-

nia, the Executive Officer of the California State Air

Resources Board, the Los Angeles County Air Pollu-

tion Control Officer, and the Arcadia City Council.

This brief in opposition to the petition for writ of

certiorari is submitted solely on behalf of respondents

Ronald Reagan, Governor of the State of California,

and John Maga, former Executive Officer of the Cali-

fornia State Air Resources Board (hereinafter referred

to as “state respondents” ).

In the proceedings below, the District Court held,

and the Court of Appeals affirmed, that the exclusive

authorization for bringing a private civil suit under the

Clean Air Act is section 304 (42 U.S.C. § 1857h-2),

and that petitioner had failed to state a cause of action

thereunder. As both courts recognized, section 304 pro-

vides no right of injunctive relief against non-govern-

mental parties except for violation of specific stand-

ards, limitations, or orders promulgated under the Act,

and no right to mandamus relief against non-federal

governmental officials for a failure to act. The only

mandamus action authorized under section 304 is

against the Administrator of the Environmental Protec-

tion Agency, and then only for failure to perform non-

discretionary acts or duties.

Plan for Arcadia, Inc. contends in its petition for

writ of certiorari that because the State of California

did not submit an acceptable implementation plan pur-

a

suant to 42 U.S.C. § 1857c-5(a)(1), and because the

Administrator thereafter failed to adopt a plan on its

own as required by 42 U.S.C. § 1857c-5(c)(3), peti-

tioner may bring a private action for injunctive relief

against the non-governmental respondents. (Petnr. Br.,

p. 13.) /

As to state respondents, petitioner seeks a writ of

mandate compelling state respondents to “adopt and

submit to the Administrator a plan for implementation”

in conformity with federal ambient air quality stand-

ards, and to “enjoin and restrain construction or opera-

tion of the shopping center and parking lots until such

plan has been approved by the Administrator.” [Cl.

Tr. p. 14.]

It is respectfully submitted that, for the reasons set

forth below, petitioner has no private right of action,

either express or implied, under which it can compel

state respondents to submit an implementation plan

or require them to enjoin the non-governmental re-

spondents from construction or operation of the shop-

ping center.

| Judicial Remedy to

Compel State Respondents to Adopt and Submit

Plan

Petitioner’s action is purportedly brought pursuant to

section 304 of the Clean Air Act of 1970 (42 U.S.C.

§ 1857h-2), which authorizes private civil actions by

“any person” against “any person . . . who is alleged

to be in violation of an emission standard or limita-

tion.” 42 U.S.C § 1857h 2(a)(1).

Petitioner does not allege that state respondents were

or are “in violation of an emission s.andard or limita-

tion.” Rather/as noted above, petitioner's purported

cause of action against state respondents is that the

State of California has failed to comply with section

110 of the Clean Air Act (42 U.S.C. § 1857c-5),

which requires a state to adopt and submit to the Ad-

ministrator “a plan for implementation, maintenance

and enforcement” of national ambient air quality stana-

ards adopted by the Administrator. [Petnr. Br., p. 13,

CL. Tr. p. 11.]

State respondents readily concede that the Clean Air

Act places ivitial responsibility upon the states for

devising implementation plans. It is respectfuliy sub-

mitted, however, that the Act provides no judicial rem-

edy to compel state respondents to adopt and submit

such a plan. Rather, the Clean Air Act provides that

the Administretor shall prepare, publish, and adopt on

his own an implementation plan for any state that fails

to adopt a plan, or that submits an unacceptable plan.

Clean Air Act § 110(c); 42 U.S.C. § 1857c-5(c).

AAR in SN NS I LEM BE BER A EOE COREE AONE SI et i me =

oo te

The public interest in enforcing the Clean Air Act

is thereby safeguarded by investing the Administrator

the Administrator, as petitioner alleges, fail to impose

j an implementation plan, a mandamus action may be

; brought to require promulgation. In fact, at the time

‘ petitioner filed this action, the Administrator was al-

ready acting pursuant to such a mandate. See River-

side v. Ruckelshaus, 4 E.R.C. 1728 (C.D. Cal. 1972).

It is clear, however, that no cause of action may be

pleaded under section 304 for an order compelling a

state to submit a plan, nor under any other statute or

law cited by petitioner. Federal mandate provisions

are applicable only against federal agencies and offi-

’ cials. 28 U.S.C. § 1361. The same is irue of the federal

Administrative Procedure Act. 5 U.S.C. §§ 761-06.

Petitioner cites two cases (Petnr. Br., App., p. 37)

for the proposition that the court has jurisdiction to

grant injunctive relief against state respondents. Neither

case, however, is supportive of petitioner’s position.

Both Shellburne v. New Castle County, 293 F.Supp.

237 (D. Del. 1968), and United States Servicemen’s

Fund v. Shands, 440 F.2d 44 (4th Cir. 1971), involved

the federal Civil Rights Act. However, that Act ex-

} pressly provides that relief is available “in an action at

law, in equity, or other proper proceeding for redress.”

| 42 U.S.C. § 1983. As noted, section 304 of the Clean

Air Act (42 U.S.C. § 1857h-2) permits private actions

only against persons creating emissions in excess of

emission standards or limitations, or against the Ad-

ministrator. It does not provide for equitable relief

eguinst non-federal governnicntal officials.

PS EG A A GON TS EN TSUN heel a a ee ed

a

Il

No Cause of Action Exists to Compel State Respond-

ents to Halt Construction or Operation of the

Shopping Center

Petitioner also seeks an order requiring state respond-

ents to take action to halt construction and operation

of the shopping center until an implementation plan for

California is approved by the Administrator of the

Environmental Protection Agency. [Cl. Tr. p. 14.]

What Plan for Arcadia, Inc. appears to request is a

mandatory injunction requiring state respondents to in-

stitute legal proceedings against the non-governmental

respondents. It is submitted that no cause of action

exists to require a public official to institute such litiga-

tion.

A. mandatory injunction is in effect equivalent to a

writ of mandamus and is normally governed by like

considerations. Miguel v. McCarl, 291 U.S. 442, 452

(1934); McCarthy v. Watt, 89 F.Supp. 841, 842 (D.

Mass. 1950); New York Technical Institute of Mary-

land v. Limburg, 87 F.Supp. 308, 313 (D. Md. 1949).

In this regard, the courts have uniformiy refused to

issue writs of mandate to compel law enforcement

agencies to institute prosecutorial activities for the rea-

son that the decision to undertake prosecution is en-

tirely within the discretion of the agency and not sub-

ject to control by way of mandamus. Petition of A &

H Transportation, Inc., 319 F.2d 69, 71 (4th Cir.

1963), cert. denied 375 U.S. 924 (1963); Moses v.

Kennedy, 219 F.Supp. 762, 765-66 (D. D.C. 1963);

Morgan v. Null, 117 F.Supp. 11, 15 (S.D. N.Y.

1953); Wilson v. Sharp, 42 Cal.2d 675, 678-79

(1954); Ascherman v. Bales, 273 Cal.App.2d 707,

~_<

708 (1969); City of Campbell v. Mosk, 197 Cal.App.

2d 640, 647 (1961).

It should also be noted that mandatory injunctions

are rarely granted and ouly in a very urgent case

where a clear entitlement to issuance is demonstrated.

O’Malley v. Chrysler Corporation, 160 F.2d 35, 36

(7th Cir. 1947).

The present action, however, is not such a case.

Plan for Arcadia, Inc. fails to indicate in its petition

for writ of certiorari that the Administrator, having

promulgated an implementation plan for California, in-

cluding a regulation entitled “Management of Parking

Supply,” is now fully in compliance with the require-

ments of the Act. See 38 Fed. Reg. 31232 (November

12, 1973) as amended by 39 Fed. Reg. 1025 (January

4, 1974) and 39 Fed. Reg. 1848 (January 15, 1974).

While the Administrator deferred the effective date of

regulation until January 1, 1975, this suspension of the

Clean Air Act timetable has been expressly authorized

by Congress in section 4(b) of the Energy Supply

and Environmental Coordination Act of 1974. 88 Stat.

246, 1974 U.S. Code Cong. and Admin. News 1663,

1675.

Thus, not only has the matter of compelling state

respondents to submit an implementation plan become

moot, but it would appear that in view of the author-

ization contained in section 4(b) of the Energy Supply

and Environmental Coordination Act of 1974, state

respondents are precluded by statute from bringing an

action to enjoin construction or operation of the shop-

ping center.

suntiliiate

Conclusion

It is readily apparent that no cause of action exists

as against state respondents. Rather, given the Ad-

ministrator’s promulgation of a California implementa-

tion plan, together with regulations governing projects

of the nature involved herein, it is clear that the shop-

ping center is being constructed and operated in full

compliance with the requirements of the Clean Air Act.

For the foregoing reasons, state respondents respect-

fully urge this court to deny petitioner’s request for writ

of certiorari.

Respectfully submitted,

EVELLE J. YOUNGER,

Attorney General,

CARL BORONKAY,

Assistant Attorney General,

Davip R. GOLDMAN,

Deputy Attorney General,

Attorneys for Respondents Ronald Rea-

gan, Governor of the State of Cali-

fornia and John Maga, Executive Of-

ficer, California Air Resources Board.