Opposition Brief — City of Highland Park v. Train

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IN THE

Supreme Court of the Gnited States

OcTOBER TERM, 1975.

No. 75-610

THE CITY OF HIGHLAND PARK, ILLINOIS, Etc., ET AL.,

Petitioners,

vs.

RUSSELL E. TRAIN, ETC., ET AL.,

Respondents.

BRIEF IN OPPOSITION TO THE PETITION FOR :

A WRIT OF CERTIORARL

4

BuRTON Y. WEITZENFELD,

STANLEY M. LIPNICK,

JOHN L. ROPIEQUET, ;

ARNSTEIN, GLUCK, WEITZENFELD :

& Minow, ’

75th Floor, Sears Tower,

Chicago, Illinois 60606,

Counsel for Respondents Sears, :

Roebuck and Co. and Homart

Development Co. ;

:

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565 ‘

INDEX.

PAGE

Questions Presented .........cccsencrcccccccesvens 1

Statement of the Case .......ccccccccsncncccescces 2

Reasons Why the Writ Should Not Be Granted ......... 9

A. Even if This Court Reviews the Disposition of

Petitioners’ Claims Against the Administrator, Re-

view of the Dismissal of the Complaint Against the

Developers is Unwarranted .............-+5:: 9

B. The Decision Below as to the Administrator Does

Not Warrant Review by This Court ............ 10

he ate cae ka pa bp eS Aare eee 14

Appendix (under this cover)

Text of Seventh Circuit

Order Dated February 11, 1975 .............20005- Al

CITATIONS.

Cases.

Abbott Laboratories v. Gardner, 387 U. S. 136 (1967) .. 11

Anaconda Company v. Ruckelshaus, 482 F. 2d 1301

CHE TPT OS Soak okra sac cease baessceWances 12, 13

Natural Resources Defense Council, Inc. v. Environmental

Protection Agency, 475 F. 2d 968 (D. C. Cir. 1973) .. 3

Natural Resources Defense Council, Inc. v. Environmental

Protection Agency, 512 F. 2d 1357 (D.C. Cir. 1975) . 12

Natural Resources Defense Council, Inc. v. Train, 510 F.

SES TO Ge a BT SP ec a 11

Oljato Chapter of the Navajo Tribe v. Train, 515 F. 2d 654

CES Ga RTO) 5 ceca hess cas ce Sikes Che ees wee 11,12

Plan For Arcadia, Inc. v. Anita Associates, 501 F. 2d 390

(9th Cir.), cert. denied, 419 U. S. 1034 (1974) ...... 9,13

Rusk v. Cort, 369 U. S. 367 (1962) ............... 10, 11

ii

Senn v. Tile Layers Protective Union, 301 U. S. 468

Cy 1p OPPO PETER Perr Rr tee ie ee Le 9

Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D. D. C.),

affd. per curiam, 4 E. R. C. 1815 (D. C. Cir. 1972),

aff'd by an equally divided Court sub nom. Fri v. Sierra

Club, 412 U. S. 541 (1973) .......--eeeeeees 3; 5 6, 3

Statutes.

SU, S C.. §8 TO] ob OG... kai ce ies hens si vave yes 1,6, 12

Ete Ga 2 Ee neers wep ee er Ee Te ho eo ee 10

y Ba Waa os | re eye ee ee eer eee 1,6,12

, oie Bake P| ree ewrey oe E erry co. eee Ty 1, 6

Clean Air Act

Section 110, 42 U. S.C. § 1857c-5 ...........--6-- 4

Section 304, 42 U. S. C. § 1857h-2 ............--

I cake as ce een aaa eke Cake 1, 5, 6, 8, 10, 11, 12, 13

Section 307, 42 U. S. C. § 1857h-5 ..........---. 1,72

Agriculture-Environmental Consumer Protection Appro-

priations Act, P. L. 93-563, 88 Stat. 1822 (Dec. 31,

|) Pee re rT Te ee eT ee SE ee Soe eee 3

Energy Supply and Environmental Coordination Act of

1974, P. L. 93-319, 88 Stat. 246 (June 22,1974) .... 4

Regulations.

39 Fed. Reg. 7270 (Feb. 25, 1974) ....----+ee+eeees 3,4

39 Fed. Reg. 42510 (Dec. 5, 1974) ....----++e-eeee

40 Fed. Reg. 28064 (July 3, 1975) .....-----ee eee 3

Other.

Conference Report to Accompany H. R. 14368, H. Rep.

No. 93-1085 (93rd Cong., 2d Sess., June 6, 1974) ... 4

6 BNA Environment Reporter, Current Developments... 3

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1975.

No. 75-610.

THE CITY OF HIGHLAND PARK, ILLINOIS, ETC., ET AL.,

Petitioners,

VS.

RUSSELL E. TRAIN, ETC., ET AL.,

Respondents.

BRIEF IN OPPOSITION TO THE PETITION FOR

A WRIT OF CERTIORARI.

QUESTIONS PRESENTED.

1. As to Respondent Train, the questions presented are

whether Petitioners may evade the procedural notice require-

ment of Section 304 of the Clean Air Act, 42 U. S. C. § 1857h-

2, by asserting District Court jurisdiction under ae swe &

§§ 1331, 1361 and 5 U.S. C. §§ 701 et seq., even though the

special Clean Air Act provision was an adequate remedy in the

circumstances of this case for the administrative inaction alleged

by Petitioners, and whether a petition for review was properly

dismissed.

2. No basis for reviewing the dismissal of the Complaint

against these Respondents is shown by the Petition.

2

STATEMENT OF THE CASE.

This Brief in Opposition is filed in behalf of Respondents

Sears, Roebuck and Co. and its subsidiary Homart Develop-

ment Co., the developers of the shopping center referred to in

the Petition.’ The Seventh Circuit affirmed the District Court’s

judgment dismissing in its entirety a four count Complaint

against 17 defendants, and dismissed a petition for review of

an administrative regulation which had been consolidated with

the appeal at Petitioners’ instance. These Respondents, the

Developers, were not parties to the petition for review, and no

relief was sought against them in Counts II, III or IV of the

Complaint. Accordingly, this Brief in Opposition is devoted to

the reasons why this Court should not review the Seventh

Circuit’s disposition of Count I of the Complaint.

The Complaint did not and could not allege that the Re-

spondent Developers were violating or threatening to violate

any regulation issued under the Clean Air Act. It demanded

an injunction against Developers, not on the theory that they

had committed or threatened to commit a wrong, but on the

theory that certain allegedly overdue regulations, when promul-

gated, might retroactively require Developers to obtain an EPA

air quality license for their construction which had already

started.

According to Count I of the Complaint, the Administrator

of the Environmental Protection Agency (“the Administrator”

hereinafter) had failed to perform a non-discretionary duty

under the Clean Air Act—a duty to promulgate regulations by

July 31, 1972, which would prevent air pollution by so-called

“indirect sources” and which would prevent so-called “significant

deterioration” of air quality. By the time the Complaint was

filed, November 30, 1973, the Administrator had already been

1. Originally, the developers were Sears and Northbrook Court

Associates, a partnership between Homart and another company.

Homart has recently succeeded to the interest of the partnership.

acer Nie Bie 3 dD she’

3

ordered by the District of Columbia Circuit to promulgate any

“indirect source” regulation which he considered necessary’ and

had already been ordered by another District Court to “exercise

his expertise” on the subject of “significant deterioration” and

take whatever final action he considered necessary.’

While the case was pending before the District Court, the

Administrator promulgated an “indirect source” regulation,’ and

while it was pending before the Seventh Circuit on appeal, he

promulgated a “significant deterioration” regulation.’ Neither

regulation affects Developers’ center. The “indirect source”

regulation applied only to projects on which construction

was commenced after January 1, 1975;° and the “significant

deterioration” regulation does not apply to pollutants emitted

by automobiles.”

In affirming the dismissal of Count I of the Complaint, the

Seventh Circuit first considered Petitioners’ claim that the Dis-

2. Natural Resources Defense Council, Inc. vy. Environmental

Protection Agency, 475 F. 2d 968 (D. C. Cir. 1973).

3. Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D. D. C.),

aff'd per curiam, 4 ERC 1815 (D. C. Cir. 1972), aff'd by an equally

divided Court sub nom. Fri v. Sierra Club, 412 U. S. 541 (1973).

4. 39 Fed. Reg. 7270 (Feb. 25, 1974).

5. 39 Fed. Reg. 42510 (Dec. 5, 1974).

6. The regulation was subsequently amended in respects not here

material and, most recently, suspended indefinitely. 40 Fed. Reg.

28064 (July 3, 1975). In the Administrator's appropriation for fiscal

1975, Congress prohibited the expenditure of any funds to administer

it. Section 510, Agriculture-Environmental Consumer Protection Ap-

propriations Act, P. L. 93-563, 88 Stat. 1822 (Dec. 31, 1974).

Additionally, Congress is actively considering amending the Clean

Air Act to delineate the Administrator’s “indirect source” obliga-

tions. See, 6 BNA Environment Reporter, Current Developments,

at 1004 (Oct. 10, 1975).

7. The Administrator’s rationale for excluding automobile-related

pollutants from the “significant deterioration” regulation is stated in

39 Fed. Reg. at 42511 (Dec. 5, 1974). The “significant deteriora-

tion” or “nondegradation” controversy is also now receiving Con-

gressional attention. 6 BNA Environment Reporter, Current Devel-

opments at 1009 (Oct. 17, 1975). It appears that consideration is

being given to a possible amendment to the Act which might clarify

the Administrator’s “nondegradation” responsibilities with respect to

automobile-related pollutants. /d., at 548, 549 (Aug. 1, 1975).

4

trict Court should have compelled the Administrator to promul-

gate an “indirect source” regulation retroactively applicable to

Developers’ project. The Court noted that the Administrator had

promulgated an “indirect source” regulation, and that Petitioners

sought adjudication of the validity of a provision in that regula-

tion exempting “indirect sources” which, like Developers’ center,

had commenced construction prior to the regulation’s effective

date (519 F. 2d at 688; App. 20).* The Seventh Circuit held

that such a provision defining the scope of a regulation is an

integral part of the regulation itself, and that judicial review

of the sufficiency of the Administrator’s stated reasons for the

exemption provision (39 Fed. Reg. at 7272-3) would require

examination of the administrative record which was not before

it on the appeal from the District Court’s judgment (519 F. 2d

at 689; App. 22). It therefore held that the exemption provision

could not be reviewed in the action Petitioners filed in the Dis-

trict Court, but only by a petition for review of the regulation

filed in a Court of Appeals (/bid.). The Court noted that Peti-

tioners had in fact filed such a petition for review of the promul-

gated “indirect source” regulation, which was pending in the

District of Columbia Circuit where their claims would be

decided in due course (/bid.).® The Petition does not question

this part of the Seventh Circuit’s disposition of Count I.

Turning to Petitioners’ Court I “significant deterioration”

claim against the Administrator (519 F. 2d at 689-690; App.

8. The Appendix cited above and elsewhere in this Brief is the

Appendix to the Petition.

9. The Seventh Circuit did not reach the Developers’ contention,

with which the Government agreed, that both the effective date of the

po and the exemption of shopping centers which, like De-

velopers’, commenced construction prior te that effective date, had

been ratified by Section 4(b) of the Energy Supply and Environ-

mental Coordination Act of 1974, P. L. 93-319, tat, 246 (June

22, 1974), which amended Section 110(c) of the Clean Air Act,

among other ways, by addition of new sub-sections (2)(C) and

(D), 42 U. S. C. §§ 1857c-5(c) (2)(C), (D). See, Conference

Report to Accompany H. R. 14368, H. Rep. No. 93-1085, at page

40 (93rd Cong., 2d Sess., June 6, 1974).

5

23), the Seventh Circuit held that Petitioners could not main-

tain Count I to compel the Administrator to promulgate a

“significant deterioration” regulation because Petitioners had

failed to comply with the Clean Air Act. Section 304(a) (2) of

the Act confers upon the District Courts jurisdiction of actions

to compel the Administrator to perform a non-discretionary act

or duty, but Section 304(b)(2) specifically prohibits com-

mencement of any such action without first giving 60 days prior

notice to the Administrator. 42 U. S. C. §§ 1857h-2(a) (2), (b)

(2). Petitioners “made no attempt whatsoever to comply with

the notice provision” (519 F. 2d at 691; App. 24-25), as the

Petition itself admits at page 6, and the Seventh Circuit held

this defect fatal to Petitioners’ allegation of right under the

special Clean Air Act provision.

The Petition, at page 6, asserts that the notice required by

Section 304 was not given because Petitioners sought prelimi-

nary injunctive relief. It does not, however, advise this Court of

the uncontroverted facts pertinent to Petitioners’ implication

that, when the Complaint was filed, they faced an unforeseen

situation:

1. In January, 1972, the Administrator publicly announced

that he would not promulgate regulations to prevent “significant

deterioration” of air quality.’° Petitioners did nothing.

2. Although Paragraph 40 of the Complaint alleges that the

Administrator had a duty to promulgate “significant deteriora-

tion” regulations no later than July 31, 1972, that date came

and went, but still Petitioners did nothing.

3. Developers’ plan to constiuct the shopping center was

publicly announced on January 19, 1973," and Petitioners not

only knew of it, but admittedly commissioned a traffic study of

10. Sierra Club v. Ruckelshaus, supra, 344 F. Supp. at 254.

11. Note 11 and accompanying text at page 8 of the Memo-

randum submitted to the Seventh Circuit by Petitioners in support of

their motion (which was denied) for a temporary injunction pend-

ing appeal.

6

. the proposed preject-which-was completed-on. March 13, 1973.”

Still they did not assert their claim that the Administrator was

in default of a duty to promulgate a regulation.

4. Petitioners’ inaction continued until the Complaint was

filed, on November 30, 1973, by which date Developers had

millions invested in the shopping center with millions more

committed, and had commenced work on the project.

On these uncontroverted facts, no claim could properly be

made that the 60-day notice requirement of Section 304

rendered that remedy for administrative inaction inadequate in

the circumstances of this case.

The Seventh Circuit also considered Petitioners’ claims that

mandamus against the Administrator or its equivalent were

available to them under 28 U. S. C. §§ 1331, 1361 or 5 U.S.C.

§§ 701 ef seq. It held that these other remedies were not avail-

able to these Petitioners for the specific reason that they are

available only when there is no other adequate remedy, while

the direct remedy of Section 304 of the Clean Air Act was an

adequate remedy in the circumstances of this case for the ad-

ministrative inaction Petitioners had alleged (519 F. 2d at 691-

692; App. 26-28). These holdings made it unnecessary for the

Court to consider Petitioners’ assertion of need for a second

order by a second District Court requiring the Administrator

to do what he had already been required to do in the Sierra

Club case, note 3 supra.

Having disposed of Count I as to the Administrator, the

Seventh Circuit went on to hold that Count I contained no basis

for enjoining Developers (519 F. 2d at 693; App. 30). The

Petition does not discuss the lower court’s disposition of Count

I as to Developers, and advances no reason why it should be

reviewed by this Court, even assuming, arguendo, that re-

view is undertaken of the dismissal of Count I against the

Administrator.

12. Id., notes 14 and 15 at page 9.

7

"While the Respondent Developers were not parties to the

petition for review which the Seventh Circuit dismissed, they

are aware of the circumstances under which, and the reason

why it was consolidated with the appeal from the District Court's

dismissal of the Complaint.

The petition for review itself suggested that it be consoli-

dated with the appeal “since both causes involve identical facts

and identical issues”. Shortly after it was filed, certain third

persons moved for transfer to another Circuit where other peti- ;

tions for review of the same regulation were already pending.

Petitioners’ response was a memorandum in which they again

represented to the Seventh Circuit that “identical issues of fact

and law are raised” by their petition for review and by their

appeal.

The Seventh Circuit took Petitioners at their word and, on

February 7, 1975, two weeks before scheduled oral argument

of the appeal, entered an order denying transfer and consolidat-

ing the petition for review with the appeal, adhering to the '

date already set for oral argument, all as Petitioners had re- ¢

quested, and stating that: {

“Petitioners have represented in their Petition for Review }

and Memorandum in Opposition to Motion to Transfer :

that the consolidated cases present identical substantive F

issues on appeal.”

Requests for reconsideration of the order of consolidation

were filed, by the Respondent Developers among others, point-

ing out that an appeal from a District Court dismissal of a Com-

plaint and a petition for review of an administrative regulation

necessarily have different records and raise different issues, and

that the administrative record necessary for review of the regula-

tion for alleged inadequacy was not yet before the Court and

could not be brought before it by the date set for oral argu-

ment of the appeal with which the petition for review had

been consolidated. The Seventh Circuit, on February 11, 1975,

not only declined to reconsider its order of consolidation, but

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did so in terms which dispelled any conceivable lingering doubt

of the terms on which consolidation had been ordered at Peti-

tioners’ suggestion and on the basis of their repeated representa-

tions that they sought to raise by their petition for review only

issues “identical” to those already raised in their appeal:

“This Court based its order [of consolidation] on the

fact that Petitioner-appellants intended to raise identical

substantive issues in its petition for review as it has in its

brief in [the appeal] . . . . This Court’s February 7, 1975

order of consolidation was intended to limit the scope of

Petitioner's petition for review to the issues raised in [the

appeal].”

That order concluded by advising Petitioners and everyone else,

in no uncertain terms, that the Seventh Circuit understood that

Petitioners did not wish to raise “the issue of adequacy of the

EPA regulations”, and had limited the scope of their petition

for review to the Administrator’s failure to act alleged in Count

I of the Complaint.” Petitioners acquiesced.

The Seventh Circuit dismissed the petition for review on the

ground that the Administrator's alleged failure to act, the issue

to which the petition for review had been limited, could not be

challenged by petition for review but only by action commenced

in the District Court, and that such an action must be brought

under and in compliance with Section 304 of the Act where,

as here, it is an adequate remedy.

13. For the Court’s convenience, the full text of the Seventh Cir-

cuit’s order of February 11, 1975, is set forth in the Appendix which

follows this Brief in Opposition.

REASONS WHY THE WRIT SHOULD NOT BE GRANTED.

A. Even if This Court Reviews the Disposition of Petitioners’

} Claims Against the Administrator, Review of the Dismissal

of the Complaint Against the Developers Is Unwarranted.

It is undisputed that Developers have neither violated nor

threatened to violate any regulation issued under the Clean Air

Act, and it is more than time for their role in this litigation to

come to an end, whether or not the dispute goes on between

Petitioners and the Government. There is no reason why this

Court should review the dismissal of the Complaint which sought

an injunction against the Developers. The courts are in harmony

that injunctions do not lie against private citizens in the

circumstances of this case.

In a case with remarkable factual similarity, the Ninth Cir-

cuit reached the same result as was reached below as to De-

velopers, affirming dismissal of a Complaint for injunction

against shopping center construction which allegedly should

have been but was not regulated under the Clean Air Act. Plan

tor Arcadia, Inc. v. Anita Associates, 501 F. 2d 390 (9th

Cir.), cert. denied, 419 U. S. 1034 (1974). The Court there

held that private parties may not be enjoined under the Act

except from violating regulations which have been issued and

which are in effect.

oF

al at

Even if the Administrator is ultimately held to have com-

mitted a wrong, the dismissal of the Complaint against De-

velopers would still be right. Petitioners sought to enjoin De-

velopers’ lawful use of their own land as a “remedy” for the

alleged wrongs of the Administrator. It has long been settled

that no one has a right to a “remedy” against the lawful con-

duct of another. Senn v. Tile Layers Protective Union, 301 U. S.

468, 483 (1937).

For these reasons, this Court should not review the decision

below affirming dismissal of Count I of the Complaint against

the Respondent Developers.

I oar’

Ee

10

B. The Decision Below as to the Administrator Does Not

Warrant Review by This Court.

Contrary to Petitioners’ assertions, the decision below does

not ignore the saving clause contained in Section 304(e), 42

U. S. C. § 1857h-2(e), and does not hold that the special

remedy for administrative inaction provided by Section 304(a)

of the Act is exclusive in all cases:

“.. . the saving provision [Section 304(e) of the Clean

Air Act], expressing the general intention of Congress not

to disturb existing rights to seek relief, does not have the

affirmative effect of removing conditions which existing

law imposes upon the exercise of those rights. . . . We are

not holding that if the remedy provided by the statute were

inadequate in the circumstances of a particular case, other

remedies would be unavailable.” 519 F. 2d at 693;

App. 29.

The Seventh Circuit gave effect to the Section 304(e) sav-

ing clause by carefully considering each and every basis on

which Petitioners attempted to maintain their District Court

action against the Administrator without giving the notice which

would have entitled them to proceed under Section 304(a)(2).

Wherever it turned, it found a right to proceed conditioned

upon the inadequacy of the special statutory procedure, which

was adequate in this case but not followed by Petitioners, and

its decision so holding does not conflict with the decisions

cited in the Petition.”*

Rusk v. Cort, 369 U. S. 367 (1962), decided that the special

provision of the Immigration and Nationality Act for review by

habeas corpus of an administrative decision of forfeiture of citi-

zenship, under the circumstances of that case, did not preclude

forms of review otherwise available. It did not decide that other

forms of review were available in all circumstances. While that

14. “The form of proceeding for judicial review is the special

statutory review proceeding relevant to the subject matter in a court

specified by statute or, in the absence or inadequacy thereof, any

applicable form of legal action. . . 5 U.S.C. § 703.

ll

Act’s special habeas corpus remedy was-not held inadequate

in so many words, its inadequacy in the circumstances of the

case is explicit in this Court’s statement that resort in that

‘ case to habeas corpus would have required:

“

. that a native of this country living abroad must

travel thousands of miles, be arrested, and go to jail in

order to attack an administrative finding that he is not a

citizen of the United States.” 369 U. S. 375.

Abbott Laboratories v. Gardner, 387 U. S. 136 (1967), de-

cided that the special provision of the Federal Food, Drug and

Cosmetic Act, as amended, for review of certain regulations

promulgated under the Act had not by silence precluded forms

of review otherwise available. It did not decide that forms of

review other than provided specifically by the Drug Act were

available in all circumstances. While the Drug Act’s special

review procedure was not specifically held inadequate by

Abbott, its inadequacy in the circumstances presented is implicit

in this Court’s opinion, 387 U. S. 152-154.

Natural Resources Defense Council, Inc. v. Train, 510 F. 2d

692 (D. C. Cir. 1975), held that Section 505(a) of the Water

Pollution Control Act, as amended, which parallels Section

304(a) of the Clean Air Act, does not oust the District Courts

of subject matter jurisdiction to award other available remedies

to compel the Administrator to perform a duty. The decision

considered only the trial court’s subject matter jurisdiction

to award such other remedies as might be available, 510 F. 2d ;

at 698-699, and neither holds that other remedies are available

in all cases nor delineates the circumstances in which they

are available.

PE eee

The lack of conflict between the decision below and the views

of the District of Columbia Circuit is demonstrated by a more

recent decision by that Court which Petitioners chose to rele- :

gate to a footnote. Oljato Chapter of the Navajo Tribe v. Train,

515 F. 2d 654 (D. C. Cir. 1975), decided that the particular

relief there sought could be obtained by filing a Section 307 4

12

petition for review in the Court of Appeals, and not by filing an

action in a District Court. In the course of so deciding, the Court

declined to consider the possibility of District Court jurisdiction

under 28 U. S. C. § 1331, “[blecause we find that petitioners

do not lack a forum in which to bring their action. . . .” 515

F. 2d at 658 n. 5. The Court went on to state its view that

the Administrative Procedure Act is an independent source of

jurisdiction “of the ‘gap-filling’ variety”, 515 F. 2d at 663, and

then emphasized and re-emphasized its view that independent

“gap-filling” jurisdiction is conferred by the A. P. A. only when

there is no other adequate judicial remedy. 515 F. 2d at 664.

These views are consistent with those expressed in Anaconda

Company v. Ruckelshaus, 482 F. 2d 1301, 1304 (10th Cir.

1973), and are precisely the basis on which the Seventh Circuit

rejected Petitioners’ effort to proceed under 28 U.S. C. § 1331

and the Administrative Procedure Act. There is no conflict.

In affirming the dismissal of Count I of the Complaint, the

Seventh Circuit had no occasion to consider and did not con-

sider the scope of review available in the District Court in a

Section 304 action. While Petitioners assert that such actions

may not encompass alleged abuse of discretion, the District of

Columbia Circuit has indicated that they do encompass alleged

abuse of discretion. Oljato Chapter, supra, 515 F. 2d at 663

n. 14. In any event, it is unnecessary and inappropriate to engage

in idle speculation as to the Seventh Circuit’s possible decision

on this question in the future. If and when it decides this ques-

tion contrary to the view of the District of Columbia Circuit,

there will be time enough for this Court to consider whether

the conflict is of such moment as to merit this Court’s attention.

Natural Resources Defense Council, Inc. v. Environmental

Protection Agency, 512 F. 2d 1351 (D. C. Cir. 1975), decided

that the authority to award attorney's fees conferred by Section

304 of the Clean Air Act is limited to District Court actions

brought pursuant to that section, and does not include actions

initiated under Section 307 by filing a petition for review with a

13

Court of Appeals. The decision below does not remotely touch

upon this question.

Just as there is no conflict among the federal courts concern-

ing the circumstances in which the notice required by Section

304 must be given, so, contrary to Petitioners’ contention, there

is no conflict between or confusion among the courts concerning

the respective jurisdiction of the District Courts and the Courts

of Appeals. The District Courts may, in appropriate cases, order

the Administrator to act; once he has acted, review of the

“adequacy of his regulations” must be sought by petition for

review to the Court of Appeals.”®

When the Complaint was filed, no regulations had been

promulgated. During the pendency of the case, they were

promulgated but not to Petitioners’ satisfaction. Petitioners’ chal-

lenge to the “indirect source” regulation has been raised by a

petition for review now pending before the District of Columbia

Circuit. Their petition for review of the “significant deteriora-

tion” regulation filed before the Seventh Circuit was at their

request limited to an issue not cognizable by a petition for

review and submitted for decision without the administrative

record. Hence it had to be dismissed. No real jurisdictional

dilemma under the Clean Air Act exists and review of the

dismissal of Count I is not warranted.

15. Plan For Arcadia, supra; Anaconda Company v. Ruckel-

shaus, 482 F. 2d 1301, 1304 (10th Cir. 1973); Compare Sierra

Club v. Ruckelshaus, supra note 3, with the subsequent order in

the same case cited and discussed in note 1 at page 4 of the Petition.

at

SIAN

SON EIA NERS BED WII ELLIO ERE FEE EES

Zoe

LOR REPS AE TN FILET AE PET Y

14

CONCLUSION.

Respondents Sears, Roebuck and Co. and Homart Develop-

ment Co. respectfully pray that the Petition be denied as to

the Seventh Circuit's decision affirming dismissal of Count I of

the Complaint.

Respectfully submitted,

BuRTON Y. WEITZENFELD,

STANLEY M. LIPNICK,

JOHN L. ROPIEQUET,

ARNSTEIN, GLUCK, WEITZENFELD

& MINow,

75th Floor, Sears Tower,

Chicago, Illinois 60606,

Counsel for Respondents Sears,

Roebuck and Co. and Homart

Development Co.

5 Rc AN, FTL LE IEE

Al

APPENDIX.

UNITED STATES COURT OF APPEALS,

For the Seventh Circuit,

Chicago, Illinois 60604.

February 11, 1975.

Before

Hon. WALTER J. CuMMINGS, Circuit Judge

Hon. WiLBur F. PELL, Jr., Circuit Judge

THE City OF HIGHLAND PARK, ET AL., |

Plaintiffs-appellants,

No. 74-1271 vs.

Appeal from _ the

RussELL E. TRAIN, ET AL., vere ee yr

Defendants-appellees, trict Court for te ;

Northern District of

Illinois, Eastern :

Tue City oF HIGHLAND Park, ETC., i Division.

aoe Petitioners, No. 73 C 3027

No. 75-1006 vs. Petition for Review of 4

an Order of the

Russe. E. Train, Administrator and United States En-

U. §S. ENVIRONMENTAL PROTEC- vironmental Protec-

TION AGENCY, tion Agency.

Respondents,

FO

SIERRA CLUB, ET AL.,

Intervenors. ;

This matter comes before the Court on Intervenor’s “Motion

For Reconsideration Of The Order Granting Consolidation of

NS LEN ee tI ME ete oo eee ee

A2

Case Nos. 1271 and 75-1006”, and the “Motion of Defendants-

appellees Northbrook Court Associates and Sears, Roebuck

and Co. For Reconsideration Of Order Of Consolidation”.

On February 7, 1975 this Court ordered the consolidation

of the above appeals. This Court based its order on the fact that

Petitioner-appellants intended to raise identical substantive

issues in its petition for review as it has in its brief in 74-1271,

filed herein on September 14, 1975. In light of the pending

Motion to Dismiss Appeal 74-1271, which is to be taken with

the case, it appears that Petitioners have attempted to safe-

guard their jurisdictional ground by filing the petition for

review in 75-1006. Without making any comment on the pro-

priety of the action employed by Petitioners in the instant ap-

peals, consolidation of the two cases is in the interest of judicial

economy. This Court’s February 7, 1975 order of consolida-

tion was intended to limit the scope of Petitioner’s petition for

review to the issues raised in 74-1271.

Intervenors have indicated their intent to raise the issue of

adequacy of the EPA regulations promulgated December 5,

1974, 39 Fed. Reg. 42509. Because this issue is not within the

scope of the present consolidated appeals and because Inter-

venors have been granted leave to intervene in Indiana-Ken-

tucky Electric Corp., et. al. v. U. S. Environmental Protection

Agency, 74-2055, in which case intervenors will have the op-

portunity to challenge the adequacy of the regulations in ques-

tion. IT IS HEREBY ORDERED, sua sponte, that the Order

of this Court granting intervention be, and the same is hereby,

VACATED.