# Reply Brief — Kennecott Copper Corp. v. Train

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_2147%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 935

## Text

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IN THE oe
Supreme Court of the United States

OcTOBER TERM, 1975

No. 75-1029

KENNECOTT CorpvreR CoRPORATION, Petitioner,
V.

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
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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

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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

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2

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

3

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-

5)

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.

6

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

7

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.

8
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,
ALFRED V. J. PRATHER

J. WiLttAM DOooLirrLe

PRATHER SEEGER DOOLITTLe
FARMER & EWING

1101 Sixteenth Street, N.W.

Washington, D.C. 20036

Attorneys for Petitioner
Kennecott Copper Corporation

April 1976

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_2147%3A6. Public record. Not legal advice.