Reply Brief — Kennecott Copper Corp. v. Train

Supreme Court brief1976

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IN THE oe

Supreme Court of the United States

OcTOBER TERM, 1975

No. 75-1029

KENNECOTT CorpvreR CoRPORATION, Petitioner,

Russet, FE. Trarn, 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

PETITIONER'S REPLY MEMORANDUM

ALFRED V. J. PRATHER

J. WitutaM DOooLirTLe

PRATHER SEEGER DOOLITTLE

FARMER & EWING

1101 Sixteenth Street, N.W.

Washington, D.C. 20036

Attorneys for Petitioner

Kennecott Copper Corporation

April 1976

Press oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

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— —

RAILS EMEP LPP TR Te INP NTA te ae ANY

‘ , FCA STAT

TABLE OF AUTHORITIES

Cases: | Page

Regional Rail Reorganization Act Cases, 419 U.S. 102

Lee LA ea vawicy eae Raab ae Chan bas 6

Sierra Club v. EPA, D.C. Cir. Nos. 74-2063, et aloo... 05

Train v. Natural Resources Defense Council, Inc., 421

oo Cr eee 1,2,3,4,8

United States v. Philadelphia Nat'l Bank, 374 U.S, 321

Oe ried ch vou vanes 6

United States v. Wise, 370 U.S. 405 (1962) .......... 6

STATUTES:

Clean Air Act, as amended, Section 110, 84 Stat. 1680,

MT ii dun sccnuacscceaes 5,6

Energy Supply and Environmental Coordination <Act

ED kc ce a ctw e ek nC RE SS h anes e 6

OTueER AUTHORITIES:

119 Congressional Record 19189 (1973) ..........4. 4,5

38 Federal Register 25697 (1973) ........ cc cc cues 4

39 Federal Register 42510 (1974) ............00e0es D

RICrrn rwoMmicw

ASAT Pe, a RRR NE 9) MOU Ie ~ ¥

IN THE

Supreme Court of the United States

OcTroBER TERM, 1975

No. 75-1029

KENNECOT?T CoprerR Corporation, Petitioner,

Vv.

Russet Ek. Traix, 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

PETITIONER’S REPLY MEMORANDUM

ARGUMENT

In its petition for a writ of certiorari, Kennecott

Copper Corporation showed that the decision of the

eourt below is in conflict with this Court’s decision in

Train v. Natural Resources Defense Council, Ine., 421

U.S. 60 (1975), and that it decided an important issue

of Federal law that should be finally resolved by this

Court. The brief in opposition filed on behalf of the

respondent Administrator of the Environmental Pro-

BLEED THROUGH

SEM AE, 0b Titi MEE IM

tection Agency makes no substantial effort either to

address this conflict in decisions or to dispute the im-

portance of this case. In short, the brief in opposition

only confirms that the issuance of a writ of certiorari

by this Court is amply warranted.

lL. In Train ve. NRDC. supra, this Court declared

that, so long as a State’s implementation plan makes

provision for attaining and maintaining national am-

bient air quality standards, EPA has no authority un-

der the Clean Air Act to challenge the particular con-

trol strategy adopted by the State. The court below,

however, held that PA may indeed disapprove a St:te

plan, even though it provides for meeting the national

standards, if it does so by reliance on control strategies

other than the one preferred by EPA. Perhaps the

most remarkable thing about b PA‘s brief in opposition

is its almost total failure to come to grips with this ir-

reconcilable conflict between the Ninth Circuit's deci-

sion and the definitive ruling so recently handed down

by this Court.

Abeut all EPA has to say about this Court's decision

in Tratw vy. NRDC is to argue that the Court’s deserip-

tion of *‘emission limitations”? therein clearly exelud-

ed supplementary-contre! and tall-staek techniques

(Br. Opp. 7-5). To begin with, it is difficult to imagine

that this Court would have announced such a constrict-

ed definition of ‘emission limitations’? at the same time

it Was affirming the States’ freedom to adopt whatever

control strategies are best suited to their local needs.

Furthermore, as we pointed out in the petition, the cited

passage In the Court’s opinion in fact contradicts

EPACS narrow view (Pet. 9). Far from containing

the kind of restrictive qualifications for which EPA

contends, the only requirement it imposes on emission

limitations is that they “tresult in ambient air which

meets the national standards” (421 U.S. at 7s).

I} PA‘s thesis seems to be that, in deseribing emission

limitations as ‘regulations of the composition of sub-

stances emitted’? ((bid.), this Court eannot have in-

tended to inelude “regulations that mercly regulate the

time * * * or the altitude’ at which pollutants are re-

leased (Br. Opp. 8). That hardly describes the

Nevada plan, in which supplementary coutrols and a

tall stack are integral parts of an overall control strat-

egy that provides for a continuous reduetion in sulfur

emissions of af least 60 perecut (see Br. Opp. 3). Thus,

not only does the Nevada plan contain *Semission limi-

tations” as defined by this Court, but it also would effect

the “Seonstant emission reductions” required by EP A‘s

preferred — strategy. The Ninth Cirenuit’s contrary

holding represents an unacceptable interference with

the States’ exercise of their assigned responsibilities

under the Act.’

2, EPA next arenes that supplementary contro!

systems should not be considered ‘emission limita-

tions’? within the meaning of the Clean Air Act because

they **do not provide a sufficient guarantee that national

primary and secondary ambient air quality standards

will be maintained”? (Br. Opp. 2). This contention, of

course, belies EPA'S insistence that, in resisting the use

of such control techniques, it is not primarily concerned

MEPA’s attempt (Br. Opp. S n.4) to explain away this Court's

disapproval of ‘'forcinge further technological developments”

where “national standards are being attained and maintained”?

(421 US. at 81) is unpersuasive. The gloss that EPA would

apply to the Court’s words would render them virtually meaning-

less——a consummation devoutly to be wished by EPA but scarcely

in accord with the will of Congress.

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with administrative convenience and ease of enforce-

ment (see Br. Opp. 6 n. 2). It must also be observed

that this type of argument ‘goes more to the wisdom of

what Congress has chosen to do than to determining

what Congress has done,”’ Train v. NRDC, supra, 421

U.S. at 92.

What is more to the point, however, is the fact that

EPA itself has repeatedly confirmed the reliability of

supplementary control systems. An EPA Staff Paper

relied on by the court below (Pet. App. 12a n. 24) states

that ‘‘an LCS [intermittent or supplementary control

system], when properly designed and diligently and

conscientiously operated, can be used to attain air qual-

ity standards with the same reliability as a CCS [econ-

stant control system],’’ 119 Cong. Ree. 19189, 19190-91

(1973). Similarly, EPA has publicly declared that

‘*such [supplementary control] systems can be designed

and operated in such a way as to be a reliable means of

attaining and maintaining national standards in se-

lected situations,’’ 38 Fed. Reg. 25697, 25700 (1973).

Thus, the worst that can be said of a supplementary

control system is that—like any technologically ad-

vanced system—its reliability depends on how well it is

designed and how conscientiously it is operated. This

means that EPA and the States must frame regulatory

guidelines and devise enforcement techniques to insure

that only properly designed systems are installed and

that they are efficiently operated and carefully main-

tained. That EPA may find this administrative re-

sponsibility inconvenient or perhaps even onerous is no

reason for the agency or the courts to rewrite the Act.

The foregoing comments apply equally to EPA’s ar-

gument that ‘‘dispersion techniques’’ (the non-statu-

tory label EPA has affixed to supplementary-control

and tall-stack techniques) are inconsistent with ‘‘the

policy of nondegradation in the Clean Air Act’’ (Br.

Opp. 10). In the first place, the factual premises on

which this argument is based are false ; for example, the

EPA Staff Paper cited above conceded that, because a

pollutant that is being dispersed is also being diluted,

‘the assumption that total environmental damage de-

creases with increased pollutant dispersion is reason-

able,’? 119 Cong. Ree. at 19193 (emphasis supplied).

Furthermore, to the extent that the Clean Air Act em-

bodies a “‘policy of nondegradation,’? EPA and the

States have ample means of enforcing it against all

sources, regardless of the control techniques they are

employing.”

3. EPA goes on to claim that ‘‘the legislative his-

tory of subsequent amendments to the Clean Air Act

shows that Congress intended that state implementation

plans should require the use of continuous emission

controls when available’? (Br. Opp. 10-11). That

KPA must place such reliance on ‘*subsequent legis-

lative history’? only underscores the fact that nothing

in either the language or the legislative history of the

provision involved in this case (Section 110(a) (2) (B)

of the Act) supports EPA’s position. Moreover, this

Court has repeatedly cautioned that the meaning of a

statute cannot be altered by subsequent statements of

legislators and agency officials or by such ambiguous

2In fact, EPA has already promulgated comprehensive ‘‘non-

degradation’* regulations, 39 Fed. Reg. 42510 (1974), the validity

of which is being litigated in Sierra Club v. EPA (D.C. Cir. Nos.

74-2063, et al.). Among the issues involved in that litigation is

whether Congress did indeed write the so-called ‘‘nondegradation

policy’ into the Act, a question on which this Court (having di-

vided evenly when the issue was last before it) has not yet ruled.

actions as the failure to adopt proposed amendments,

see, c.g., Regional Rail Reorganization Act Cases, 419

U.S. 102, 132 (1974); United States vy. Philadelphia

Nat’l Banh, 874 U.S, 3821, 548-49 (1963); United States

v. Wise, 370 US, 405, 411 (1962).

Particularly wide of the mark is EPA‘sS argument

that the 1974 amendment to the Clean Air Act added by

the Energy Supply and Environmental Coordination

Act supports the ageney’s interpretation of Seetion 1i0

(a)(2)(B) (Br, Opp, 12-13), As EPA correctly states,

the 1974 amendment was adopted to provide relief from

pollution control requirements for certain large emis-

sion sources that switeh from oil or gas to coal because

of the fuel shortage. Under its terms, 2 PA may allow

such sources to employ supplementary control systems

for a limited period, subject to certain restrietive con-

ditions, EPA views the narrowness of those condi-

tions as evidence that Congress disapproves of the use

of supplementary control systems.

This argument totally misconceives the thrust of the

1974 amendment. The cited provision permits EPA

to force supplementary control systems on any State

in which an affected source is located, regardless of

whether the State wishes to use such systems as part

of its control strategy. Since the grant of such a pre-

emptive power to EPA is so at odds with the basie

policy of the Act, Congress naturally placed stringent

conditions on its use. It did so, not to curtail the

State’s choices of control strategies, but to restrict

EPA’s power to override those choices. Thus, far

from reflecting legislative rejection of a particular eon-

trol technique, the 1974 amendment represents a clear

reaffirmation by Congress that it is the States that are

to select the means for controlling pollution in each

local area, not HDA.

4. Finally, EPA points to several proposed amend-

ments to the Clean Air Aet now pending in Congress,

suggesting that they support EPA‘s position on the

merits and that their adoption might rob this case of

any prospective importance (Bi. Opp. 15-14 nm. 10),

Neither of these contentions is meritorious, for the

provisions to which HPA refers have no direct bear-

ing on the present case, The provisions in the [Louse

bill cited by EPA, like the 1974 amendment just dis-

eussed, would merely authorize temporary relief from

State-imposed emission controls; they would not en-

large or diminish the States’? discretion to decide what

controls to impose in the first place, which is what this

case is conecrned with.

The cited provisions of the Senate bill would some-

What amplify the statutory requirements governing

State implementation plus, but the issue posed here—

whether the Administrator may disapprove a State

plan because he disagrees with the means selected by

the State for mecting those statutory requirements—

would remain unaffected by their enactment. Thus,

while the Senate bill speciticaliv sanctions State adop-

tion of supplementary-control strategies for existing

copper smelters, its Chactment would not, so far as we

are aware, alter Ee PA‘s position that it is free to im-

pose time limitations and teehnology-forcing eoudi-

tions on the use of such strategies, as it did here. In-

deed, if the proposed amendments have any signifi-

cance at all for present purposes, it is that they em-

phasize the continuing need for this Court to confine

EPA to its proper role under the Act. That, of

course, 1s What this case is about.

CONCLUSION

The brief in opposition filed on behalf of EPA has

in no way reconciled the sharp conflict between the

decision below and this Court’s authoritative opinion

in Train vy. NRDC. Nor has it challenged the broad

importance of the issues decided by the court below.

Accordingly, for the reasons stated in the petition and

this memorandum, a writ of certiorari should issue to

review the judgment and opinion of the United States

Court of Appeals for the Ninth Cireuit.

Respectfully submitted,