Amicus Curiae Brief — Kennecott Copper Corp. v. Train

Russe. E. TRAIN, vena: Scop oha kes ti us

Respondent,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE FOR THE BAY AREA

LEAGUE OF INDUSTRIAL ASSOCIATIONS, INC.

JOHN T. RONAN, Il

Tuxedo;: New York 10987

H. EDWARD DUNKELBERGER, JR.

THEODORE L. GARRETT

. Attorneys for Amicus Curiae

March 1976

Mh LINE NE RG ese A TIMED oer

TABLE OF CONTENTS

Page

ee PTET CETTE TT ETT TE Tee 1

Reasons For Granting The Writ ............cccccncccecseces 2

PERE CORE ECE TEE TET EEOL TE EEE CLOECETE OLR 3

Appendix

TABLE OF CASES

Big Rivers Electric Corporation v. EPA,

og ee rrr rrr Terres ee ee eee pe |

Seas Oe ey Se ee

g

ie

.

“i tet page.

YOLEN,

‘ PO TM NMOL ON LEGER CS,

In the

Supreme Court of the Mnited States

October Term, 1975

No. 75-1029

KENNECOTT CopPER CORPORATION.

Petitioner,

Russext E. Train, Administrator of the

Environmental Protection Agency,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE FOR THE BAY AREA

LEAGUE OF INDUSTRIAL ASSOCIATIONS, INC.

INTEREST OF AMICUS CURIAE

The Bay Area League of Industrial Associations, Inc.

submits this brief in support of Petitioner Kennecott Cop-

per Corporation. Counsel for both petitioner and respon-

dent, Russell E. Train, have consented to the filing of this

brief amicus by letters which have been presented to the

Clerk of the Court pursuant to Rule 42(2).

BLURRED COPY BLEED THROUGH

2

The Bay Area League of Industrial Associations, Inc.

(‘“‘BALIA’’) is an incorporated league of industrial cor-

porations with manufacturing facilities located in the San

Francisco Bay area. BALIA is a party to rulemaking in

which the Environmental Protection Agency (‘‘EPA’’) has

proposed formally to disapprove certain provisions of the

Bay Area implementation plan solely on the grounds that it

permitted ground level monitoring controls, based upon the

same rationale as EPA’s disapproval of the Nevada

regulations involved in this case.

REASONS FOR GRANTING THE WRIT

The decision below involves a question of continuing and

overriding importance concerning the implementation of

the Clean Air Act which should be reviewed by this Court.

This case is one of several cases in which EPA has made it

clear that it would disapprove state implementation plans,

although the plans provide for the attainment and main-

tenance of the national ambient air quality standards, if the

plans do not rely upon “‘constant emission controls’ and

that EPA will not permit other types of emission controls.

The issues presented in this case are also before this

Court in connection with previously filed petitions by a

group of affected electric utilities (No. 75-774, October

Term 1975) to review the decision of the Court of Appeals

in Big Rivers Electric Corporation v. EPA, 523 F.2d 16 (6th

Cir. 1975). Because of the importance of these issues to

BALIA and its members, on January 16, 1976, BALIA filed

a brief amicus curiae on behalf of the petitioners Big Rivers

Electric Corporation, et al.”

' A petition for a writ of certiorari to review this decision has also

been filed by the Tennessee Valley Authority (No. 75-787, October

Term 1975).

? In response to the two Big Rivers petitions filed in February 1976,

EPA took the position that the case is moot and that the judgment

(continued)

3

It is respectfully submitted that the decision below was

erroneous on questions of great importance to amicus

curiae and to other industries affected by state im-

plementation plans. Rather than repeat here arguments

which we have made previously, we will instead refer the

Court to the brief amicus curiae filed by BALIA in the Big

Rivers case, which appears below in the Appendix.

CONCLUSION

For the reasons set forth herein, and in our brief amicus

in Big Rivers, which appears in the attached Appendix, a

writ of certiorari should issue to review the judgment and

opinion of the Ninth Circuit.

Respectfully submitted,

JOHN T. RONAN, III

Tuxedo, New York 10987

H. EDWARD DUNKELBERGER, JR.

THEODORE L. GARRETT

Covington & Burling

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Amicus Curiae

March 1976

? (continued)

should be vacated and, in the alternative, that if the Court does not

agree that the case is moot the petitions should be denied.

Although we do not wish to respond here to the Government’s

suggestion of mootness in the Big Rivers case, to our knowledge there

has been no such suggestion in the present case. Further, EPA has

made it clear that the Agency will be taking further actions to disap-

prove state plans which contain optional control features. See Ap-

pendix at S.

BLURRED COPY ee

-” ee ENE " ™ omg Say “2 AMEE

= 2 NEL TERE 7

ETA a ara ral ~