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

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SUBJECT INDEX

Page

Jurisdiction and Statutes Involved .......................... 2

Questions Presented for Review ..........-...10----- 2

te I ccc 3

ia ie MI TUE AGA isecseenseninccnnponscovoesassansens 3

B. The Proceedings Below ..................---..00cc.0.- 4

C. Summary of Relevant Facts -..................... 6

a = 2 aU MINE acts caceeclasdhcidisennstanncbodaancs 6

2. Construction Prior to the Initiation of

INT sihscis cn teicringenninnsntniactesteisbecbtone z

Pee Relat ik ae RE OE 9

A. Introduction to Clean Air Act Concepts ...... 9

1. The Clean Air Act Under the 1967

and 1970 Amendments ...................... 9

2. Regulatory Structure at the Time the

Action Was Filed ..... 11

3. Statutory and Regulatory Develop-

ments Since the Action Was Filed ...... 12

B. Petitioner’s Claims With Regard to Enforce-

ment of the Ambient Air Quality Standards

by Private Action Were Properly Dismissed.. 13

1. Neither the Clean Air Act nor the

Ambient Air Quality Standards Prom-

ulgated Thereunder, Absent Imple-

menting Regulation, Prohibit the De-

wWelopenent “OE “TMGBS aia. cccccccee eens

Page

2. Appellants Do Not Have Standing to

Bring a Private Cause of Action for

Enforcement of the Ambient Air

Quality Standards Without Reference

to Regulations Implementing Those

UMN or 17

D. Petitioner’s Arguments Based Upon the

Provisions of 42 U.S.C. § 1857h-1 Were

Not Raised Below and Are Improperly In-

cluded in Its Petition Herein .................. 20

oo SRSA ai POORER SF Sot Pe es oe Oe 22

~ Section 1857c-6, Title 40, United States Code... 2

Section 4(b), Pub. Law $3-319, 88 Stat. 246

TABLE OF AUTHORITIES CITED

Cases Page

Crandall v. Biergans, 3 E.R.C 1827 (Mich. 1972)

peaeleiaaesll tidapiaihicielistthidinens 15, 16

Diamond v. General Motors, 20 Set 374

gt re ee ae

Eason v. Dickson, 390 F.2d 585 (9th Cir. 1968),

Came, Umm FIT UG, GEG anno ccvnscccececeeeeee nee 20

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

i RE) fag Oe I ea ae OR RIO Sea 19

Westinghouse Electric Corp. v. Weigel, 426 F.2d

ae We i TON ee 20

Federal Register

38 Federal Register No. 217, p. 31231 .............. 12

39 Federal Register, p. 7270 ..... 19

39 Federal Register No. 3 (Jan. 4, 1974) p. 1025.. 12

39 Federal Register No. 10 (Jan. 15, 1974) p.

1568 cd 12

39 Federal Register No. 38, pp. 7270-7285 _..12, 13

39 Federal Register No. 200 (Oct. 15, 1974) p.

36870 : 12

Miscellaneous

Congressional Record, September 22, 1970, p.

ee gE EEE SEL TER IT 16, 17

House Report No. 728, October 3, 1967, reprint

1967 U.S. Code Congressional and Administra-

tive News, Vol. 2, p. 1964 .2.2.220.0.002020 21

Report of the Committee on Public Works to Ac-

company S. 4358, Senate Report No. 91-1196

SIE WEE RR MOM satctinincelaansebinctciuiensieicinstretence

iv.

Senate Report No. 911196, September 17, 1970, pp.

sono rene: <1 RES C5 Ra

The Clean Air Amendments of 1970, 12 Boston

College Industrial and Commercial Law Review

(1971) pp. 571, 574-93 OnE aL aN ee RAS 9,

United States Code Congressional and Administra-

tive News, (1974), Pp. 1663-1685

Rules

Federal Rules of Civil Procedure, p. 50

Rules of the Supreme Court, Rule 24

Om ewe enw wwwewne

Statutes

Code of Federal Regulations, Title 40, Sec. 50.8 .

Code of Federal Regulations, Title 40, Sec. 50.9

Code of Federal Regulations, Title 40, Sec. 50.11.

Code of Federal Regulations, Title 40, Sec. 52,

wi ama ec nn Mont ape Oe) ete eee 11,

Code of Federal Regulations, Title 40, Sec. 52.22

sted vinasuianidtnoyedaceibeyennstouonbsahsonkonsin cuvnéiiececs acc ocooce... 13,

Code of Federal Regulations, Title 40, Sec. 52.251

Energy Supply and Environmental Coordination

Act of 1974, Sec, 40Gb) 3,

Page

21

10

13

a

>

ee eeweee

United States Code, Title 42, Sec. 1857c-5(a)(2)

|g See ene TAE A ee tae eee eee aS alee 18

United States Code, Title 42, Sec. 1857c-6 ...... a 33

United States Code, Title 42, Sec. 1857c-6(a)

—ehiipaentaecnlsanahonabipbaatalabsbeawihitetbananigs onssibominwsisaseacakcceic.c. 5. 18

United States Code, Title 42. Sec. 1857c-6(d) .... 18

United States Code, Title 42, Sec. Uo rine 11

United States Code, Title 42, Sec. 1857c-7(b) ...... 18

United States Code, Title 42, Sec. 1857h-1 ....20, 21

United States Code, Title 42, Sec. SS ye? nn... 17

United States Code, Title 42, Sec. 1857h-2(a) ...... 18

United States Code, Title 42, Sec. 1857h-2(f) .... 18

IN THE

Supreme Court of the United States

October Term, 1974

No. 74-398

PLAN FOR ARCADIA, INC., a non-profit corporation,

Petitioner,

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,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Brief for Respondents Anita Associates and Santa Anita

Consolidated, Inc. in Opposition to the Issuance

of the Writ.

Pursuant to Rule 24 of the Rules of the Supreme

Court, respondents Anita Associates and Santa Anita

Consolidated, Inc. (“Santa Anita”) oppose the issuance

of a writ of certiorari in the above-entitled case for

the reasons set forth in this brief.

oor, ae

JURISDICTION AND STATUTES INVOLVED.

Petitioner correctly states the basis of this Court’s

jurisdiction and correctly cites the constitutional and

Statutory provisions applicable to the questions raised

by this petition, except that petitioner does not cite or

set forth Sections 1857c-5 and 1857c-6 of Title 42 of

the United States Code or 88 Stat. 246 (1974) (not

yet codified), which are set forth in pertinent part in

Appendix A hereto.

QUESTIONS PRESENTED FOR REVIEW.

In attempting to set forth issues worthy of this

Court’s attention, petitioner limits itself to two conten-

tions. First, petitioner complains of the refusal of the

Court of Appeals to entertain its argument, raised for

the first time on appeal, that mandamus should issue

to compel the Administrator of the Environmental Pro-

tection Agency to exercise his emergency powers un-

der the Clean Air Act. Second, petitioner contends that

a private cause of action exists under the Clean Air

Act to enforce ambient air quality standards even in

the absence of implementing regulation. These respond-

ents will treat these contentions in reverse order to fa-

cilitate logical and concise argument.

et

STATMENT OF THE CASE.

A: Nature of the Case.

In the proceedings below, petitioner’ sought prin-

cipally to prevent the development of Santa Anita Fash-

ion Park (“Fashion Park”), a shopping center, by re-

spondent Anita Associates.’ To this end, petitioner

sought a temporary restraining order and a preliminary

injunction against these respondents and a writ of man-

date addressed to the public entity respondents herein

requiring them to take steps to halt the challenged

developments. Petitioner based its prayer primarily

upon allegations that the developments at issue were

in violation of the Clean Air Act as amended [42

U.S.C. § 1857 et seq. (1970).]

_ Anita Associates and Santa Anita will address them-

selves principally to the merits of petitioner’s conten-

tions concerning the requirements of the Clean Air Act.

Factually, Anita Associates and Santa Anita contend-

ed vigorously below that Fashion Park will reduce

rather than increase air pollution in the San Gabriel

Valley.’ For purposes of this petition, of course, these

Originally, there were two plaintiffs in this action, petitioner

and an individual named Jack Saelid. Mr. Saelid withdrew, how-

ever, following the decision of the Ninth Circuit affirming the

dismissal of this action, pursuant to leave to withdraw granted by

the Court of Appeals by order dated August 28, 1974.

*Secondarily, petitioner sought to prevent the construction of

a new parking lot off Baldwin Avenue for Santa Anita racetrack

by appellee Santa Anita. The Baldwin Avenue Parking Lot,

except for landscaping, was complete and had been open to the

public for nearly two months by the time this action was filed. It

is now entirely complete, and petitioner does not appear to con-

tinue to challenge this development. ‘

*Indeed, the evidence before the District Court on the bene-

ficial regional, as opposed to local, impact of Fashion Park was

uncontested. Shopping centers are attractive to the consumer

(This footnote is continued on next page)

cites

factual contentions are irrelevant because the Act itself

does not prohibit the development at issue; and, even

if it did, petitioner lacks standing under the Act to

challenge the development.

B. The Proceedings Below.

Petitioner filed its complaint herein in the United

States District Court for the Central District of Cali-

fornia and applied for a temporary restraining order

on October 23, 1973. [Clerk’s Transcript (“C.T.”),

Vol. I, p. 1] Following a brief hearing in the chambers

of the Honorable Jesse W. Curtis on October 24,

1973, the application was denied, but November 5,

1 973, was set for a hearing on appellants’ motion for

preliminary injunction. When this matter came on for

hearing, however, Judge Curtis indicated that the mat-

ter-seemed ripe for summary judgment and proposed

that it be treated in that fashion. [Reporter’s Tran-

script (“R.T.”), p. 4]. The parties present or repre-

sented by counsel at that hearing—petitioner Plan for

Arcadia and then-plaintiff Jack Saelid and respondents

—5—

Santa Anita, Anita Associates and Russell Train, Ad-

ministrator of the Environmental Protection Agency—

Stipulated to this procedure and the matter was so sub-

mitted. On November 16, 1973, pursuant to previous-

ly obtained leave of Court, petitioner submitted an ad-

ditional affidavit in support of its position. [C.T., Vol.

I, p. 129.] On December 12, 1973, Judge Curtis is-

sued his memorandum opinion denying petitioner’s mo-

tion for preliminary injunction and dismissing the com-

plaint. [C.T., Vol. I, p. 136.]

Qn January 7, 1974, appellants unsuccessfully

moved the District Court for an injunction pending ap-

peal. [R.T. p. 36.] At that time, in an effort to

make this matter ripe for appeal as quickly as possible,

petitioner urged the District Court not to prepare and

file findings of fact and conclusions of law. Respond-

‘ents Anita Associates and Santa Anita believed such

findings and conclusions to be required by Fed.R.Civ.

P. 50 inasmuch as the matter had initially been sub-

mitted as a motion for preliminary injunction. [R.T.

pp. 37-40.] Anita Associates and Santa Anita with-

drew their request for findings and conclusions, how-

ever, in return for petitioner’s stipulation waiving any

procedural defects which might exist in the manner in

which judgment had been reached. [C.T., Vol. I, p.

156. ]

Sa AE

C. Summary of Relevant Facts.

1. Fashion Park.

On April 30, 1970, Santa Anita filed with the City

of Arcadia (“City”) a zone change application to per-

mit the development of a regional shopping center to

be known as Santa Anita Fashion Park.* The develop-

ment was to include three major department stores and

approximately seventy mall stores.

The Planning Commission of the City held extensive

public hearings on this application. The evidence re-

ceived included discussion of planning, economic, traf-

fic, social, environmental and aesthetic matters. On Feb-

ruary 5, 1971, the City Council adopted a resolution

placing on the ballot as a referendum the question of

whether the zoning change should be adopted to per-

mit the development of Fashion Park. The zoning change

itself was, if approved in the referendum, to be sub-

ject to a number of detailed conditions, which were

Conclusions of Law si by

seilllites

presented to the electorate with the same ballot sent

to all registered voters. On April 20, 1971, the voters

of the City of Arcadia approved the proposition.

On April 6, 1972, Santa Anita leased the site for

Fashion Park to Anita Associates, and Anita Associ-

ates submitted preliminary plans to the City Council for

approval. On August 15, 1972, these plans were ap-

proved.

2. Construction Prior to the Initiation of This Action.

Anita Associates applied for a grading permit for the

Fashion Park site on February 26, 1973. The Director of

Public Works held up the issuance of that permit, how-

ever, requesting that Anita Associates provide the

City with data to assist in the preparation of an environ-

mental impact report for the development. On March

12, 1973, following public hearings, the Planning De-

partment submitted to the City Council, with a copy

of petitioner Plan for Arcadia, a document entitled

Environmental Impact Report. On March 20, 1973, the

City Council approved the report for Fashion Park;

and, on March 21, 1973, the City issued a grading

permit for the Fashion Park site. Anita Associates be-

gan work soon thereafter.

On June 6, 1973, Anita Associates obtained a

foundations-only building permit from the City of

Arcadia for the commencement of construction of Fash-

ion Park. Ground was broken and the first footings

poured and rebar work began that same day. The

foundations were completed on October 26, 1973. [Af-

fidavit of Ernie Weber, C.T., Vol. I, p. 63.]

A full building permit was obtained on July 10,

1973. Masonry work began on July 26, 1973, miscel-

laneous metal work on August 1, 1973, electrical work

scl:

on September 5, 1973, plumbing on September 12,

1973. Work on elevators and escalators began on Sep-

tember 10 and 11, 1973, respectively. Structural steel

work began on October 17, 1973. [Affidavit of Ernie 1

Weber, C.T., Vol. I, p. 63.] |

Off-site improvements on the adjoining streets, paid {

for by Anita Associates, began on June 8, 1973. They

were substantially completed on September 28, 1973.

[Affidavit of Ernie Weber, C.T., Vol. I, p. 63.]

olin

ARGUMENT.

A. INTRODUCTION TO CLEAN AIR ACT CONCEPTS.

The Clean Air Act, enacted in 1963 and amended

in 1967 (the “1967 amendments”) and in 1970 (the

“1970 amendments”), created a unique system of regu-

lation for the improvement and control of air quality

throughout the United States. The Act mandates co-

operation between state and federal authorities in a

complex and often confusing manner that is largely un-

paralleled in other legislation. Intelligent discussion of

the Act and its scope necessarily requires as back-

ground a brief history of the Act and a rapid sketch of

its regulatory approach.

1. The Clean Air Act Under the 1967 and 1970

Amendments,

The Clean Air Act has its historical genesis in

legislation enacted in 1963 as an incentive to research

and study of the air pollution problems of the nation

and as an aid to state enforcement of pollution controls

through limited federal participation in enforcement.

77 Stat. 392. More important, however, were the 1967

amendments (known as the Air Quality Act of 1967

[81 Stat. 485]) which resulted in major changes in the

Clean Air Act and provided the conceptual basis of the

present regulatory approach. Finding air pollution con-

trol to be properly a matter principally of state and

local responsibility (42 U.S.C. § 1857), Congress took

an approach that left the states almost solely in control

of setting standards, of devising plans for meeting those

5A general treatment of this topic can be found in The Clean

Air Amendments of 1970, 12 Boston College Industrial and

Commercial Law Review 571, 574-93 (1971).

Ltrs toe eee ee

vedi

standards and of enforcing the rules promulgated as

part of those plans. Aside from the well publicized pro-

visions dealing with motor vehicle emission standards

and other limited areas not relevant herein, the federal f

legislation did not, of itself, purport to make any spe- )

cific activity unlawful. |

The 1970 amendments to the Clean Air Act were

responsive to widespread criticism of the ineffectiveness

of the 1967 amendments in general and of the way

they were being administered in particular. See, The

Clean Air Amendments of 1970, supra at n.4, at 577-

581. The 1970 amendments are sufficiently broad and

supplant enough of the 1967 amendments to constitute

the entirely new statutory scheme presently in effect.

They do, however, retain much of the philosophy of the

1967 amendments in their approach toward state re-

sponsibility for regulation with the important difference

that tight federal control is maintained throughout in

order to ensure the enactment of effective and compre-

hensive, regulatory programs.

Under the 1970 amendments the Administrator of

the Environmental Protection Agency must publish

ambient air quality standards for each pollutant for

which criteria had been established under the previous

legislation.” 42 U.S.C. 1%57c-4 (1970). The 1970

_ amendments are not regulatory in nature. Aside from ’

provisions, not relevant here, dealing with motor

vehicle emissions, they do not purport to prohibit any

pera standards, the gy | pees stticien: Paige pina

health, the latter at levels necessary to protect ic’ welfare.

On November 25, 1971, eg bi erga

tas

specific activity. Rather they mandate regulatory activ-

ity by the states and by the Administrator to create a

comprehensive and integrated program of prohibitions

and limitations for the attainment of the ambient air

quality standards, specifically requiring, for the first

time, the inclusion of programs of traffic control. The

initial responsibility for devising implementation plans

for achieving these standards is left with the states. The

Administrator is given the primary responsibility of

designating for regulation new stationary pollution

sources and for setting emission standards for them

(42 U.S.C. 1857c-6), and for adopting regulations

dealing with hazardous pollutants not covered by the

ambient air quality standards (42 U.S.C. 1857c-7).

The 1970 amendments give the Administrator the au-

thority and the obligation to promulgate his own imple-

mentation plan for any given area should the state in-

volved fail to meet the deadlines for promulgation con-

tained in the Act. 42 U.S.C. 1857c-5.

2. Regulatory Structure at the Time the Action Was

Filed,

When this action was brought, no comprehensive

implementation plan had yet been adopted for the

region containing the Los Angeles Metropolitan Area.

Many of the substantive provisions of the implementa-

tion plan proposed by the State of California as they

related to that region had been rejected by the Ad-

ministrator, although portions of the plan had been

adopted. 40 C.F.R. part 52, subpart F. In addition,

the Administrator had proposed several well publicized

supplemental traffic control regulations for inclusion in

this region’s implementation plan. At that time, how-

ever, there were no regulations in effect that purported

—]2—

to govern the activity involved in the development at

issue here.

3. Statutory and Regulatory Developments Since the

Action Was Filed.

Since October 23, 1973, the Administrator has pro-

mulgated two distinct but overlapping sets of regula-

tions requiring preconstruction review of developments

similar to Fashion Park. The first set of regulations,

the California Transportation Control Plan, was pub-

lished November 12, 1973 [38 Federal Register No.

217, at 31231; 40 C.F.R. part 52, subpart F], as a

portion of the California implementation plan. Rele-

vant portions of the California Transportation Control

Plan required the Administrator or his designee to re-

view, prior to construction or modification, the develop-

ment or addition of a specified number of parking

spaces to any parking facility. 40 C.F.R. § 52.251.

This review procedure applies to facilities whose con-

struction or modification was commenced after August

15, 1973. The effective date of these regulations has

been deferred by successive amendments by the Ad-

ministrator to June 30, 1975. 39 Fed. Reg. No. 3, at

1025 (January 4, 1974); Reg. No. 10, at 1848 (Jan-

uary 15, 1974); 39 Fed. Reg. No. 200 at 36870 (Octo-

ber 15, 1974).

The second set of regulations are those which appel-

lants sought from the Administrator below, regulations

governing review of “indirect sources,” i.e., develop-

ments which do not themselves emit pollutants but

which have associated activities which do so. The

Indirect Source Regulations were published February

25, 1974 and are incorporated into the implementation

plans of several states, including California. 39 Fed.

cai

Reg. No. 38, at 7270-7285; 40 C.F.R. § 52.22. The

Indirect Source Regulations, which also cover develop-

ments like Fashion Park, require the Administrator or

his designee to review, prior to construction or modifi-

cation, parking facilities of specified Capacities within a

Standard Metropolitan Statistical Area, such as Los

Angeles. The regulations are effective January 1, 1975,

and cover developments commenced after that date.

The Clean Air Act was amended in June of this

year by the enactment of the Energy Supply and En-

vironmental Coordination Act of 1974. 88 Stat. 246

(1974 U.S. Code Cong. & Admin. News 1663-1685).

Section 4(b) of that act prohibits certain types of

regulation of parking facilities, requires the Adminis-

trator to submit certain analyses to Congress and rati-

fies the deferral until J anuary 1, 1975, of any regula-

tions requiring preconstruction approval of parking

facilities.

B. PETITIONER’S CLAIMS WITH REGARD TO EN.

FORCEMENT OF THE AMBIENT AIR QUALITY

STANDARDS BY PRIVATE ACTION WERE PROP-

ERLY DISMISSED.

1. Neither the Clean Air Act nor the Ambient Air

Quality Standards Promulgated Thereunder, Ab-

sent Implementing Regulation, Prohibit the De-

velopment at Issue.

Petitioner has placed its primary hope throughout

of this action on an effort to establish prohibitions

against the construction of developments such as

Fashion Park based solely upon the ambient air

quality standards and the nonregulatory provisions of

the Act, particularly upon sections 1857c-4 and 1857c-

5 of Title 42 which require the promulgation of imple-

a oe

menting regulations. Since, as discusséd in section A

above, those provisions are not aimed at the prohibition

of any specific activity, petitioner is unable to point to

any explicit prohibition directed toward the develop-

ment at issue. Petitioner therefore must overcome two

substantial hurdles. First, it must argue that the ad-

monitions to the states and to the Administrator to en-

act implementation plans themselves create the basis for

inferring prohibitions against specific activities which

are alleged to interfere with attainment of the ambient

air quality standards. Second, petitioner must establish

that, as part of these inferred prohibitions, there exists

a cause of action enabling private citizens to prosecute

lawsuits of the nature involved herein. Both arguments

are essential to petitioner’s claims, and both arguments

are wholly at odds with the structure and history of the

Act. These arguments are closely related and, hence,

discussion of one necessarily overlaps with discussion

of the other. Respondents, however, will focus pri-

marily on the first argument in this section and on the

second argument in the section that follows.

As has been discussed above, the Act depends for

its effectiveness upon specific and objective implemen-

tation plans and regulations enacted under it, envi-

sioning a coordinated strategy for each air quality con-

trol region for the attainment of the ambient air quality

standards. Those standards alone were not intended to

affect the sources of pollution. The Senate Committee

report notes:

“The establishment alone of ambient air qual-

ity standards has little effect on air quality. Stand-

ards are only the reference point for the analysis

of the factors contributing to air pollution and the

imposition of control strategy and tactics. This

ot ae

program is an implementation plan.” Report of

the Committee on Public Works to Accompany

S. 4358, Senate Report No. 91-1196 at 11-12

(1970).

Indeed, not even the Administrator has authority

under the Act to enforce the ambient air quality stand-

ards absent specific regulation. His predecessor, the

Secretary of Health, Education and Welfare had en-

joyed such authority, in limited circumstances, under

the 1967 amendments. 81 Stat. 491. This power was

eliminated by the 1970 amendments, and the Senate

Committee Report indicates that this was a purposeful

attempt to avoid the unsatisfactory generality attend-

ant on such a regulatory approach:

“Because attainment of ambient air quality is

possible only through the enforcement of precise

and objective emission controls the Committee bill

would delete the enforcement requirement for the

abatement of violations of the air quality stand-

ard.” Senate Report, supra, at 21.

Ineffectiveness of the prior approach was not the

only reason or even the most important reason that

enforcement procedures were left solely to the imple-

mentation plans and the Administrator’s regulations

under the 1970 amendments. Air quality control is a

complex and multi-faceted problem, requiring a coor-

dinated regional approach for a regional effort to attain

the desired standards. The case by case analysis that

is the heart of the common law approach to problems

is not consistent with this approach and the courts

are not equipped to make the complex policy decisions

required. See, Diamond v. General Motors, 20 Cal.

App.3d 374 (1971); Crandall y. Biergans, 3 E.R.C.

Bie ae

1827 (Mich. 1972). Indeed, decisions requiring spe-

cific methods of air quality control in isolated cases

without reference to the integrated plan of control

could seriously hinder the effectiveness of the Act by

reducing the options open to the states and to the

Administrator in formulating control tactics for overall

air quality improvement. ,

Fears of precisely such an effect were voiced during

the Senate debates on the inclusion of a private cause

of action in the 1970 amendments. Senator Cooper,

during his remarks on the floor, indicated that the

Committee which reported the bill out had been con-

cerned that “the development of a common law of pol-

lution could reduce the effectiveness of the Clean Air

Act.” Congressional Record, September 22, 1970, p.

$16257. As the Committee report states, the private

cause of action was allowed to remain because en-

forcement provisions under the Act would involve only

the objective question of whether or not an implement-

ing regulation had been violated:

“[The private suits provision] would not sub-

stitute a ‘common law’ or court-developed defini-

tion of air quality. An alleged violation of an

emission control standard, emission requirement,

or a provision in an implementation plan, would

not require reanalysis of technological or other

considerations at the enforcement stage. These

matters would have been settled in the adminis-

trative procedure leading to an implementation

plan or emission control provision. Therefore, an

objective evidentiary standard would have to be

met by the citizen who brings an action under

this section.” Senate Report, supra, at 36 (1970).

a

The case at hand is illustrative of the difficulties

which Congress intended to avoid by its continued

adherence to specific behavior criteria rather than gen-

eralized reference to air quality. Petitioner submitted

the Affidavit of James Behar [C.T., Vol. I, p. 53] to

the District Court in support of its assertion that the

development of Fashion Park will result in a deteri-

oration in the quality of air in the immediate vicinity

of the shopping center. These respondents, on the other

hand, submitted the Joint Affidavit of John Dunzer,

Vincent Mestre and Dr. G. S. Samuelson [C.T., Vol.

II, p. 99] showing that developments of this nature

could be a method of reducing pollution inasmuch as

the shopping center would result in the overall improve-

ment of air quality in the San Gabriel Valley as a whole

by significantly reducing the total miles driven each

day. The District Court was thus asked by appellants

not simply to rule that this particular development

could not go forward, but also to hold that the ap-

proach to pollution control it offered was improper.

It would have been neither appropriate nor lawful

for the District Court so to restrict the discretion of

the Administrator in these matters. The promulgation

of specific enforcement provisions must be left where

Congress intended, with the states and the Administra-

tor.

2. Appellants Do Not Have Standing to Bring a

Private Cause of Action for Enforcement of the

Ambient Air Quality Standards Without Reference

to Regulations Implementing Those Standards.

The 1970 amendments to the Act do provide for

citizens’ actions. 42 U.S.C. § 1857h-2. This private

cause of action is, however, quite narrow in scope and

manifestly does not include actions of the nature con-

—18—

templated by petitioner. Private civil actions, other than

those against the Administrator, are allowed only when

the actions challenged are alleged to be “in violation

of an emission standard or limitation under the Act

or an order issued by the Administrator or a State

with respect to such a Standard or limitation.” 42

U.S.C. § 1857h-2(a). “Emission standard or limitation

under this Act” is further defined, in pertinent part, as:

“A schedule or timetable of compliance, emis-

sion limitation, standard of performance or emis-

sion standard. . . .” 42 U.S.C. § 1857h-2(f).

Schedules, timetables of compliance and emission

limitations are all required elements to be included in

state implementation plans. 42 U.S.C. § 1857c-5(a)

(2)(B) (1970). Standards of performance and emis-

sion standards are to be elements of state plans and

Administrator regulations dealing with stationary

sources. 42 U.S.C. §§ 1857c-6(a) and (d), 1857c-7(b)

(1970). Nowhere in the Act ~are the ambient air

quality standards, as petitioner would have the Court

believe, treated as “emission standards or limitations.”

It is thus evident, as the legislative history discussed

in section B.1 above would lead one to expect, that

the private action provided in the Act may be main-

tained against private entities only to enforce compli-

ance with specific existing regulations.

Petitioner continues to press for a right of action in-

dependent of implementing regulation, however, argu-

ing somewhat viscerally that the Administrator has

failed to comply with the timetables established by the

Clean Air Act for the promulgatiotsof such regula-

tion. This failure, petitioner sugg-sts, would leave the

Act impotent in the absence of che right of action it as-

serts and thereby justifies the judicial creation of a pri-

pwr

vate cause of action where none is provided. This argu-

ment is without merit, for petitioner is hardly without

remedy. Its appropriate action, should it be correct in

its assertion that the Administrator has not complied

with the timetable for promulgation, would be for

mandamus requiring promulgation.’

More fundamentally, however, petitioner has failed

to bring to the attention of this Court the recent regula-

tory and legislative developments outlined in subsection

A.3 above which indicates that the Administrator is

fully in compliance with the timetable of the Clean Air

Act in the adoption of regulations dealing with facil-

ities such as Fashion Park. On February 25, 1974, the

Administrator promulgated the Indirect Source Regula-

tions which require preconstruction review and ap-

proval of facilities such as Fashion Park. 39 Fed. Reg.

7270; 40 C.F.R. § 52.52. The effective date of these

regulations is January 1, 1975, hence excluding Fashion

Park from the requirements. However, far from being in

conflict with the Act, this late effective date has been

explicitly authorized by section 4(b) of the Energy

Supply and Environmental Coordination Act.*

Therefore, in contrast to the impression which peti-

tioner has attempted to create, there presently exist

regulations governing facilities of the nature involved

herein. It is true that these regulations do not affect

Fashion Park because of their effective date of January

1, 1975, but this effective date has been explicitly au-

"At the time this action was filed, the Administrator was, in

fact, already acting pursuant to just such a mandate. See River-

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

"The Energy Supply and Environmental Coordination Act

also ratified a similar deferral of the effective date of the parking

management provisions of the California Transportation Control

Plan. See section A.3 above.

—20—

thorized by Congress. Respondents thus respectfully sub-

mit, petitioner’s rhetoric aside, that the Administrator

is in compliance with the Act’s timetables and the con-

struction of Fashion Park is being carried forward in full

compliance with the plainly expressed intent of Con-

gress.

D. PETITIONER’S ARGUMENTS BASED UPON THE

PROVISIONS OF 42 U.S.C. § 1857h-1 WERE NOT

RAISED BELOW AND ARE IMPROPERLY IN-

CLUDED IN ITS PETITION HEREIN.

In its petition, petitioner suggests that the provisions

of 42 U.S.C. § 1857h-1, the pollution emergency pro-

vision of the Clean Air Act, provide authority for the

issuance of a writ of mandamus addressed to the Ad-

ministrator requiring him to act to prevent the opera-

tion of Fashion Park. Petitioner appears to argue, first,

that this section authorizes private suits against fancied

sources of pollution and, second, that the Administra-

tor can be compelled by such suits to exercise the

powers bestowed upon him by that section to achieve

the results that petitioner seeks herein.

These contentions appeared for the first time on ap-

peal. Petitioner never suggested these arguments to the

District Court, and respondents had no opportunity to

argue these issues in that forum. Under these circum-

stances, it was perfectly proper for the Court of Ap-

peals to reject consideration of these arguments. West-

inghouse Electric Corp. v. Weigel, 426 F.2d 1356 (9th

Cir. 1970); Eason v. Dickson, 390 F.2d 585 (9th

Cir. 1968), cert. denied 392 U.S. 914.

In an effort to excuse the untimely manner in which

these contentions were raised, petitioner asserts that the

alleged facts which gave rise to this argument were

wholly unknown until petitioner filed the affidavit of

aS ee

Dr. Goldsmith on November 16, 1973. This somewhat

improbable contention, even if accepted, offers feeble

excuse for petitioner’s failure to raise this argument

below. By its own admission, all the facts ware available

by November 16, 1973. The District Court did not

render its opinion until nearly one month later and did

not lose jurisdiction of this matter until the Notice of

Appeal was filed on January 9, 1974. Petitioner had

ample opportunity to bring these matters to the District

Court’s attention, but chose not to do so. Having made

that decision, it could not repent of it and raise those

matters for the first time on appeal.

In any event, the arguments which petitioner attempt-

ed to inject into the appeal do not alter the propriety

of the result reached by the District Court. The legisla-

tive history of the Clean Air Act plainly shows that

the emergency powers contained in 42 U.S.C. § 1857h-1

were intended to provide emergency remedies to handle

“unusual atmospheric inversion or other extraordinary

grouping of circumstances creating a substantial and im-

minent danger to public health,” and not to handle

“chronic or generally recurring pollution problems”

such as those extant in the San Gabriel Valley.’ House

Report No. 728, October 3, 1967, reprinted in 1967

U.S. Code Congressional and Administrative News,

Vol. 2 at 1964 (dealing with the Original pollution

emergency provisions in the 1967 legislation). Accord

Senate Report No. 911196, September 17, 1970, at

35-36 (discussing the present wording of these pro-

visions), The provisions of 42 U.S.C. § 1857h-1 are

thus wholly inapplicable to the issues at hand.

*These powers are, of course, reserved solely to the Ad-

ministrator of the Environmental Protection Agency and are not,

as appellants seem to suggest, available to private persons.

aa, |, aan

Conclusion.

Respondents Anita Associates and Santa Anita Con-

solidated, Inc. respectfully submit that the petition for

a writ of certiorari should be denied.

Respectfully submitted, .

SIDNEY H. WALL

Attorney for Respondents Anita Associ-

ates and Santa Anita Consolidated.

Of Counsel:

O’MELVeEny & Myers,

PuHILip F. WEsTBROOK, Jr.,

FRANCIs J. BURGWEGER, JR.,

JaMEs W. Cotsert, III,

and

BARRETT, STEARNS, COLLINS,

GLEASON & KINNEY, INC.,

A Professional Corporation.

APPENDIX A.

Section 1857¢-5, Title 40, United States Code.

(a) (1) Each State shall, after reasonable notice

and public hearings, adopt and submit to the Ad-

ministrator, within nine months after the promulgation

of a national primary ambient air quality standard (or

any revision thereof) under section 1857c-4 of this title

for any air pollutant, a plan which provides for imple-

mentation, maintenance, and enforcement of such pri-

mary standard in each air quality control region (or

portion thereof) within such State. In addition, such

State shall adopt and submit to the Administrator

(either as a part of a plan submitted under the preced-

ing sentence or separately) within nine months after

the promulgation of a national ambient air quality sec-

ondary standard (or revision thereof ), a plan which

provides for implementation, maintenance, and en-

forcement of such secondary standard in each air

quality control region (or portion thereof) within such

State. Unless a separate public hearing is provided,

each State shall consider its plan implementing such

secondary standard at the hearing required by the first

sentence of this paragraph.

(2) The Administrator shall, within four months

after the date required for submission of a plan under

paragraph (1), approve or disapprove such plan or

each portion thereof.

** *

(c) 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—

cath

(1) the State fails to submit an implementation

plan for any national ambient air quality primary

or secondary standard within the time prescribed,

(2) the plan, or any portion thereof, submitted

for such State:is determined by the Administrator

not to be in accordance with the requirements of

this section, * * * _

(d) For purposes of this chapter, an applicable im-

plementation plan is the implementation plan, or most

recent revision thereof, which has been approved under

subsection (a) of this section or promulgated under

subsection (c) of this section and which implements a

national primary or secondary ambient air quality stand-

ard in a State.

Section 1857c-6, Title 40, United States Code.

(a) For purposes of this section:

(1) The term “standard of performance”

means a standard for emissions of air pollutants

which reflects the degree of emission limitation

achievable through the application of the best sys-

tem of emission reduction which (taking into ac-

count the cost of achieving such reduction) the

Administrator determines has been adequately

demonstrated.

Section 4(b), Pub. Law 93-319, 88 Stat. 246.

(b) Subsection (c) of section 110 of the Clean Air

Act is amended by inserting “(1)” after “(c)”; by redes-

ignating paragraphs (1), (2), and (3) as subpara-

graphs (A), (B), and (C), respectively, and by add-

ing at the end thereof the following new paragraph:

* * *

shies

“(C) The Administrator is authorized to suspend

until January 1, 1975, the effective date or applicability

of any regulations for the management of parking

supply or any requirement that such regulations be a

part of an applicable implementation plan approved or

promulgated under this section. The exercise of the

authority under this subparagraph shall not prevent the

Administrator from approving such regulations if they

are adopted and submitted by a State as part of an

applicable implementation plan. If the Administrator

exercises the authority under this subparagraph, regula-

tions requiring a review or analysis of the impact of

proposed parking facilities before constructing which

take effect on or after January 1, 1975, shall not apply

to parking facilities on which construction has been

initiated before January 1, 1975.

“(D) For purposes of this paragraph—

“(ii) The term ‘management of parking sup-

ply’ shall include any requirement providing that

any new facility containing a given number of

parking spaces shall receive a permit or other prior

approval, issuance of which is to be conditioned

on air quality considerations.

* * *