Opposition Brief — Virginia v. Browner

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Supreme Court, U.S

DEC 9 196

No. 96-567

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

COMMONWEALTH OF VIRGINIA,

Vv. Petitioner,

CAROL M. BROWNER, Administrator of the

United States Environmental Protection Agency,

and UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondents,

and

AMERICAN LUNG ASSOCIATION OF

NORTHERN VIRGINIA, ET AL.,

Intervenors.

On Petition for a Writ of Certiorari

To the United States Court of Appeals

for the Fourth Circuit

INTERVENORS’ BRIEF IN OPPOSITION TO

PETITIONER’S PETITION FOR A

WRIT OF CERTIORARI

Katherine E. Slaughter

Deborah M. Murray

Attorneys for Intervenors

SOUTHERN ENVIRONMENTAL LAW CENTER

201 West Main St., Suite 14

Charlottesville, VA 22902

804/977-4090

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QUESTIONS PRESENTED

l. Whether the court of appeals properly found

that the judicial review requirement of § 502(b)(6) of the

Clean Air Act is constitutional, and whether the court

properly deferred to EPA’s interpretation of § 502(b)(6)

under the principles enunciated by this Court in Chevron,

USA _v. Natural Resources Defense Council, 467 U.S. 837

(1984).

a Whether the court of appeals properly found

that Congress has the authority, consistent with the

Commerce and Spending Clauses, and the Tenth Amendment

to the Constitution, to require federal implementation and

operation of the title V program of the Clean Air Act in states

without an approvable program.

>. Whether the court of appeals properly found

that Congress has the authority, consistent with the

Commerce and Spending Clauses, and the Tenth Amendment

to the Constitution, to condition receipt of federal highway

funds in areas that do not meet air quality standards on the

state having an approvable program, and to require additional

emissions reductions from certain stationary sources of

pollution in nonattainment areas.

LIST OF PARTIES BELOW

In accordance with Rule 14(b) of the Rules of the

United States Supreme Court, the following is a list of the

parties to the proceeding below:

The Petitioner was the Commonwealth of Virginia.

The Respondents were the Administrator of the

Environmental Protection Agency and the Environmental

Protection Agency itself. Intervenors were the American

Lung Association of Northern Virginia; the American Lung

Association of Virginia; Audubon Naturalist Society; Clean

Water Action*; Friends of the Rivers of Virginia; James

River Association; Mountain Heritage Alliance; Valley

Concerned Citizens; Virginia Chapter of the Sierra Club;

Virginia Consortium for Clean Air*; Virginia Council, Trout

Unlimited; Environmental Defense Fund*; Kathleen F.

Derricott*; Clifton E. Derricott*; Andre L. Brown*; Caleata

Johnson*; and Gwen Hedgepath*. Amici Curiae were

Virginia Manufacturers Association; Washington Legal

Foundation; Ogden Martin Systems of Lancaster,

Incorporated; Ogden Martin Systems of Alexandria,

Incorporated; National Independent Energy Producers; Ogden

Martin Systems of Fairfax, Incorporated; and Chesapeake

Bay Foundation.

* These are not parties to this brief in opposition to

the Petition for Writ of Certiorari.

In compliance with Rule 29.1, a disclosure of

corporate affiliations and Financial Interest was filed with the

U.S. Court of Appeals for the Fourth Circuit on February 7,

1995. This document showed that the Intervenor

organizations are not publicly owned corporations.

ss

TABLE OF CONTENTS

GPRPEPRUUIEGE SUMEIDEUESEEIED weve cee serv eee esnn i

Sows ee’ sy 8 Es Brera eer ae ii

BEE ME PUMP EUIRRE OUI Soc e ec cceecevees Vv

BEALEMAGINE OF THE CASE 2... cece rene ceen l

BUMEMGAURE GE ARASUMEEINE . 0... cece cee ceen 3

CE cs cheeks caees eee Se een been es 4

I. FINDING THAT § 502(b)(6) OF THE CLEAN AIR

ACT IS CONSTITUTIONAL, THE COURT OF

APPEALS PROPERLY DEFERRED TO EPA’S

INTERPRETATION OF THAT PROVISION... 4

Il. THE COURT OF APPEALS CORRECTLY FOUND

THAT FEDERAL IMPLEMENTATION OF THE

TITLE V PERMIT PROGRAM AND THE

SANCTIONS PROVISIONS ARE VALID

EXERCISES OF CONGRESSIONAL AUTHORITY

A. The Implementation and Sanctions Provisions

Comport with the Tenth Amendment and this

Court’s Analysis in New York and Hodel.

B. The Court of Appeals Properly Relied on this

Court’s Ruling in South Dakota v. Dole in

Holding that Congress Could Condition

Receipt of Federal Highway Funds on

Compliance with the Requirements of Title V.

Peet Pere ee eG ee ek 14

IV

TABLE OF AUTHORITIES

CASES

Chevron, USA, Inc. v. Natural Resources Defense Council,

Or ths See CH 6 6S 6 en 84 a eG eRe koe ta ee

Citi ben {ines Ate State ie Doliiiicen:t) |

412 5.6.20 71D (VG. AMD. TFST) occ ca ccc ncenuar 6

Commonwealth of Virginia v, Browner, 80 F.3d 869 (4th

Ci FI oc 4 Co eee eee eee passim

Envi 1 Diefemen Fund v. Virsinis Stews Waser © }

Board, 404 S.E.2d 728 (Va. App. 1991)........... 5

FERC v. Mississippi, 456 U.S. 742 (1981)......... 13

Gregory v. Ashcroft, 50] U.S. 452 (1991)........ 6,7

Hodel_v. Virginia Surface Mining & Reclamation

Association, Inc., 452 U.S. 264 (1981)

; iE ele Oe ek ek eee eae >, 9, '0, 12, 15, 18

Nevada v. Skinner, 884 F.2d 445 (9th Cir. 1989)... . 16

New York v. United States, 505 U.S. 144 (1992)

Frere rere eer eS 3, 9, 10, 11, 12, 13, 16, 17, 18

Printz v. United States and Mack v. United States, U.S. Nos.

95-1478 and 95-1503 (Lexis, Genfed library, Briefs file). . .

keh bs Cape el bb ee vee eek Tela dees 12

South Dakota v. Dole, 483 U.S. 203 (1987)..........

PUVTTT CET OTT A ee TT ee 3, 4, 9, 14, 15, 18

Town of Fries v, State Water Control Board, 409 S.E.2d

ope ch SERENE ST CE LECT EC re Ce 5

UNITED STATES CONSTITUTION

Article III of the Constitution. ........ By sy Uc Oe OF

fo le eee ere hy ds De Bhe by Bey 28

ON CANNED nk kt awe vies Ey a a 28, 16, 25,38

PN GD sk és ke eeu hehe eee eee 6

Ten NE is wis nee i, 4, & 43, 15, 8

FEDERAL STATUTES

are Oe Geek 6 Sets OPE ak k baw a ceca 14

CAA § 173(c){1), 42 U.S.C. § T50R%(chX1).......... 2

CAA § Trp, @ U.S.C. 6 TRG . ck. cca 2,9

CAA § 179(b)(1), (b)(2), 42 U.S.C. § 7509 (b)(1),(b)(2)

eee eee eed 6 Os ba be oe ee eb corel 9, 16

Cae ee, Oe Ori EE ie wicca eeckicrocn l

CAA § 502(b), 42 U.S.C. § 7661a(b) ............ 4

CAA § 502(b)(6), 42 U.S.C. § 7661la(b)(6)...........

[cheeks ek eke eee Ld i Se oe

CAA § 502(d), 42 U.S.C. § 766la(d) ............ 8

CAA § 502(d)(2). 42 U.S.C. § 7661a(d)(2).......... l

CAA § 502(d)(3), 42 U.S.C. § 7661a(d)(3).......... )

Title V of the Clean Air Act, 42 U.S.C. § 7661-7661f

cade eek hen ROONSEOME Oe ee even passim

FEDERAL REGULATIONS

GO CLE. § FOI wn cece es 5

oe i eran 2

eR | oe

OTHER

Chafee-Baucus Statement of Senate Managers, S. 1630, The

Clean Air Act Amendments of 1990), reprinted in 136 Cong.

Reg. S. 16933, S. 16941 (daily ed. 27 Oct. 1990)..... 8

H. Rep. No. 101-490, 101st Cong., 2d Sess. 4 (1990) . . 17

Vil

STATEMENT OF THE CASE

The Clean Air Act Amendments of 1990 ( “CAA”)

establish a national operating permit program for all major

facilities that discharge air pollution. CAA § 502, 42 U.S.C.

§ 7661a (Pet. App. 36-48). Title V’s key provision prohibits

major stationary sources of air pollution from operating

without a valid permit or in violation of a permit.

Commonwealth of Virginia v. Browner, 80 F.3d 869, 873

(4th Cir. 1996) (Pet. App. 5).

Congress intended the permitting program to be

implemented and administered at the state level, provided the

State program meets certain criteria set forth in title V.

Among the criteria for approval, each state must provide an

opportunity for judicial review in state court of permitting

decisions. CAA § 502(b)(6), 42 U.S.C. § 7661a(b)(6) (Pet.

App. 41). Section 502(b)(6) requires that judicial review in

state court be available to “any person who participated in the

public comment process.” CAA § 502(b)(6), 42 U.S.C.

§ 7661a(b)(6) (Pet. App. 41-42). EPA has determined that

the “case or controversy” constraints of Article III of the

U.S. Constitution implicitly apply to this requirement. 59

Fed. Reg. 62324, 62325 (1994).

If a state does not submit a program or if a program

fails to be approved by EPA, then EPA is required to

implement and operate the program in the noncomplying

state. CAA § 502(d)(2)(B), 42 U.S.C. § 7661a(d)(2)(B) (Pet.

App. 44). In addition, the failure to have an approvable state

program triggers certain sanctions. These sanctions include

an increase in pollution offset requirements already imposed

on private polluters, i.e., a requirement of a 2-1 emissions

offset for new or expanded stationary sources of air pollution.

l

A second sanction is the withholding of certain federal

highway funds. CAA § 179(b), 42 U.S.C. § 7509(b) (Pet.

App. 74). Both sanctions are to be imposed only in areas

within the state that are not in attainment with air quality

standards (“nonattainment areas”). Jd.; CAA § 173 (c){1),

42 U.S.C. § 7503(c)(1). Even within the nonattainment

areas, funds remain available for highway safety projects and

other specific transportation projects designed to reduce air

pollution from automobiles and trucks. CAA § 179(b), 42

U.S.C. § 7509(b) (Pet. App. 74).

The Commonwealth of Virginia submitted its proposed

title V program to EPA on 12 November 1993. On 17 June

1994, EPA proposed disapproval of the submission, 59 Fed.

Reg. 31183 (1994), and on 5 December 1994, EPA published

its final disapproval. 59 Fed. Reg. at 62325 (1994). EPA’s

disapproval was based on the lack of adequate provision

under state law for judicial review in violation of § 502(b)(6).

Id.

The Commonwealth filed a petition for review on 9

January 1995 in the Court of Appeals for the Fourth Circuit.

A unanimous panel of the court of appeals denied the petition,

upholding EPA’s disapproval of the title V program. Finding

EPA’s interpretation of the judicial review provision of

§ 502(b)(6) to be permissible, the court of appeals also held

that the federal implementation provision and the title V

sanctions were valid exercises of Congress’ Spending and

Commerce Clauses and consistent with the Tenth Amendment

to the Constitution. The court of appeals denied a petition for

a rehearing with a suggestion for rehearing en banc on 12

July 1996.

SUMMARY OF ARGUMENT

The court of appeals held that the Environmental

Protection Agency acted lawfully when it disapproved

Virginia’s title V program on the grounds that it did not

contain an adequate judicial review provision. The court of

appeals properly found that § 502(b)(6) is constitutional, and,

in accordance with the principles outlined in this Court's

decision in

Defense Council, 467 U.S. 837 (1984), deferred to EPA’s

construction of the provision.

The court of appeals also properly held that the

sanctions and federal implementation provision are valid

exercises of congressional authority under the Spending and

Commerce Clauses. As the court stated, “[bJecause the

elimination of air pollution promotes the general welfare,

Congress may tie the award of federal funds to the states’

efforts to eliminate air pollution . . . . Furthermore, the

Commerce Clause . . . gives Congress the power to regulate

‘activities causing air or water pollution, or other

environmental hazards that may have effects in more than one

State.’” Browner, 80 F.3d at 881 (quoting

Hodel v, Virginia

Surface Mining & Reclamation Ass’n, 452 U.S. 264, 282

(1981)) (Pet. App. 26).

Relying on this Court’s decisions in New York v.

United States, 505 U.S. 144 (1992) and Hodel, the Court also

properly rejected Petitioner’s Tenth Amendment attack on the

statute. The Court found that the sanctions and federal

implementation provisions were permissible inducements to

the states to persuade them to comply with the requirements

of title V. Further, the Court appropriately held, in

accordance with this Court’s decision in South Dakota v.

3

Dole, 483 U.S. 203 (1987), that the conditions on federal

expenditure of funds were reasonably related to the purposes

of the Clean Air Act. Because the court of appeals was

correct in its analysis and holding, and because its decision is

consistent with this Court’s decisions, this Court should deny

the petition for writ of certiorari.

ARGUMENT

I. FINDING THAT § 502(b)(6) OF THE CLEAN

AIR ACT IS CONSTITUTIONAL, THE COURT

OF APPEALS PROPERLY DEFERRED TO

EPA’S INTERPRETATION OF THAT

PROVISION.

Section 502(b)(6) of the Clean Air Act (CAA)

provides for judicial review in State court of a final permit

action. This provision unambiguously directs that “an

opportunity for judicial review in State court of the final

permit action” must be provided to “the applicant, any person

who participated in the public comment process, and any

other person who could obtain judicial review of that action

under applicable law.” CAA § 502(b)(6), 42 U.S.C.

§ 7661a(b)(6) (Pet. App. 41).

Section 502 further requires the Administrator of the

Environmental Protection Agency (EPA) to promulgate

regulations establishing the minimum elements necessary for

an approvable state permit program under title V. CAA

§ 502(b)(1)-(10), 42 U.S.C. § 7661a(b)(1)-(10) (Pet. App.

37-43). The statute directs that these elements shall include,

among other items, the provision for judicial review set forth

in § 502(b)(6),and the regulations promulgated by EPA

mirror the statutory requirements. 40 C.F.R.

§ 70.4(b)(3)(x)(1994).

As the court of appeals stated, a literal reading of

§ 502(b)(6) would require that a state allow any person who

participated in the public comment process to seek judicial

review of permitting decisions. Browner, 80 F.3d at 877

(Pet. App. 16). EPA, however, does not require that states

go that far. Instead, it has determined that the “case or

controversy” constraints of Article III of the U.S.

Constitution implicitly apply to the statutory and regulatory

requirement that judicial review be available to “any person

who participated in the public comment process.” See 59

Fed. Reg. at 62325. Thus, § 502(b)(6) is satisfied if a state

simply grants standing to those participants in the public

comment process who would also have Article III standing to

sue in federal court.

EPA disapproved the Commonwealth’s title V permit

program because Virginia’s plan contained inadequate judicial

review provisions in violation of § 502(b)(6), id. at 62324,

and the court of appeals upheld EPA’s action. That

Virginia’s law of standing fails to meet the judicial review

provisions of § 502(b)(6) is not an issue in this petition.’

' The court of appeals found that “Virginia case law makes it

clear that ... [its] ‘pecuniary and substantial’ interest requirement is more

stringent than Article III's requirement of concrete and particularized

injury.” Browner, 80 F 3d at 879 (Pet. App. 21-22). It based its decision

on review of state law cases: Environmental Defense Pund v. Virginia

State Water Control Board, 404 S.E.2d 728, 731-32 (Va. App. 1991)

(standing to appeal water pollution permit denied to association of

recreational users and riparian landowners); Town of Fries v. State Water

Control Board, 409 S.E.2d 634, 637 (Va. App. 1991) (town lacked

standing to review water pollution permit even though discharge was

5

Virginia’s standing law under the State Air Pollution Control

Act (Pet. App. 77) is flatly inconsistent with Article III

requirements, much less any potentially broader requirement

that standing be allowed to anyone who participated in the

public comment process. * Rather, the issues are whether

§ 502(b)(6) is constitutional and whether the court of appeals

properly deferred to EPA’s interpretation that § 502(b)(6) is

constrained by Article III.

The court found that § 502(b)(6) is constitutional on

the grounds that it does not compel the states to modify their

standing rules; it merely induces them to do so. Browner, 80

F.3d at 880-81 (Pet. App. 24-25). A state has the option to

allow the federal government to regulate air pollution sources

if it chooses not to meet the requirements of § 502(b)(6).

Moreover, the court also noted that, under the Supremacy

Clause, state courts may be required to apply federal law,

when applicable, and to adjudicate disputes arising under

federal law. Id. at 880 (Pet. App. 24).

The Commonwealth’s claim that this court’s decision

in Gregory v. Ashcroft, 501 U.S. 452 (1991), dictates a

contrary result is mistaken, as the court of appeals found. In

Ashcroft, the question was whether the federal Age

directly upstream); and Citizens for Clean Air v. Commonwealth, 412

S.E.2d 715, 719-21 (Va. App. 1991) (association not aggrieved under

State air law even though association members owned real estate near

plant).

? As the court of appeals found, the provision in § 502(b)(6) that

judicial review be afforded to “any other person who could obtain judicial

review of that action under applicable law” preserves any state standing

rule that potentially would be broader than Article II] requirements.

Browner, 80 F.3d at 877 (Pet. App. 16).

6

Discrimination in Employment Act ( “ADEA”), which

covered state “employees,” included state judges. Id. at

464-70. Because the ADEA contained no reference to state

courts or judges, this Court declined to interpret the ADEA

to apply to the state judiciary. The Court’s decision was

based on the principle that federal courts must not imply

congressional intent to alter the usual balance between federal

and state powers unless congressional intent to do so is clear

from the language of the statute. Id. at 470.

Unlike the situation in Ashcroft, there is no ambiguity

here regarding the applicability of § 502(b)(6) to the states.

As the court of appeals stated, § 502(b)(6), “[b]y its terms,

could apply to nothing but state courts.” Browner, 80 F.3d at

879 (emphasis in original) (Pet. App. 20). EPA has simply

construed the reach of the standard set forth in § 502(b)(6).

Faced with EPA’s interpretation that Article III case

or controversy requirements implicitly constrain § 502(b)(6),

the court of appeals followed this Court’s decision in Chevron

and deferred to the agency’s interpretation. As the court

stated, EPA’s interpretation, if reasonable, must be upheld

and take precedence over any other interpretation the parties

or the court could formulate. Browner, 80 F.3d at 878 (Pet.

App. 17-18).

EPA’s rationale for concluding that § 502(b)(6) is

tempered by Article III is that if EPA were to disapprove a

state program, and thus had to implement a title V program,

citizens would have access to judicial review only if they met

the minimal standing requirements of Article III of the U.S.

Constitution. See 59 Fed. Reg. at 62325. The court of

appeals found “EPA’s importation of Article III principles to

resolve the slight tension within CAA § 502(b)(6) to be

;

reasonable.” Browner, 80 F.3d at 878 (Pet. App. 18). In

addition, as the court of appeals noted, the legislative history

shows that Congress intended that “interested persons who

arguably are affected by permit decisions are guaranteed their

day in court.” Browner, 80 F.3d at 877 (quoting Chafee-

Baucus Statement of Senate Managers, S. 1630, The Clean

Air Act Amendments of 1990) (citations omitted) (Pet. App.

15). Thus, contrary to Petitioner’s claim, the legislative

history supports EPA’s interpretation.

In sum, neither Petitioner’s claim that EPA exceeded

its discretion to interpret the standing provision as constrained

by Article III nor its claim that the state is coerced into

changing its standing law provides a valid reason for this

Court’s discretionary review.

0. HE COURT OF APPEALS CORRECTLY

FOUND THAT FEDERAL IMPLEMENTATION

OF THE TITLE V PERMIT PROGRAM AND

THE SANCTIONS PROVISIONS ARE VALID

EXERCISES OF CONGRESSIONAL

AUTHORITY.

A state’s failure to submit a title V permit program or

the submission of a program that fails to meet the statutory

and regulatory criteria means that EPA must develop and

implement its own title V permitting plan within the

noncomplying state. CAA § 502(d), 42 U.S.C. 766ia(d)

(Pet. App. 43-45). As the court of appeals stated, the federal

government then becomes wholly responsible for the

program; the state is not reqrired to do anything to assist

EPA in this effort. Browner, 80 F.3d at 873-74 (Pet. App.

6-9).° EPA’s disapproval of a state’s title V permit program

also triggers certain sanctions, which include the withholding

of certain federal highway funds and an increase in the

pollution offset requirements already imposed on private

polluters. CAA § 179(b), 42 U.S.C. § 7509(b) (Pet. App.

74-76).

Relying on this Court’s decisions in New York v.

United States, 505 U.S. 144 (1992); Model v. Virginia

Surface Mining & Reclamation Ass’n 452 U.S. 264 (1981);

and South Dakota v. Dole, 483 U.S. 203 (1987), the court

rejected petitioner’s Tenth Amendment attack on the federal

implementation and sanctions provisions of the Clean Air

Act. Instead, it found that such provisions were permissible

inducements to the states to persuade them to comply with the

requirements of title V. Thus, the court held that all of the

provisions at issue comport with the requirements of the

Tenth Amendment. Because the court of appeals was correct

in its analysis and holding, this Court should deny the petition

for certiorari.

A. The Implementation and _ Sanctions

Provisions Comport with the Tenth

> Although the court of appeals refers to federal permit

implementation as a “sanction,” the sanctions provision of the statute in

fact includes only highway sanctions and offsets. CAA § 179(b)(1), (2),

42 U.S.C. § 7509(b)(1), (2) (Pet. App. 74-76). Instead, federal

implementation is addressed in the provisions relating to submission and

approval of a title V program. CAA § 502(d)(3), 42 U.S.C.

§ 7661a(d)(3) (Pet. App. 45). If no state program has been approved two

years after the required date of submission, then the EPA Administrator is

required to “promulgate, administer, and enforce a [title V] program” for

that state. Id.

Amendment and this Court’s Analysis in

New York and Hodel.

As the court below stated, the essence of a Tenth

Amendment violation is that the state is commanded to

regulate. Regarding the federal implementation provision,

the court found no violation because “Virginia is not

commanded to regulate; the Commonwealth may choose to do

nothing and let the federal government promulgate and

enforce its own permit program within Virginia.” Browner,

80 F.3d at 882 (Pet. App. 29).* The court concluded that the

federal implementation provision is constitutional because

“‘the full regulatory burden will be borne by the Federal

government’”. Id. (Pet. App. 29). (quoting Hodel_v.

irgini ini *n, 452 U.S. at

288).

In reaching this conclusion, the court stated that this

Court’s decision in Hode] was controlling and was in fact

“the mirror image of this case.” As the Court explained:

In Hodel the federal government first

implemented an environinental regulatory

regime within each state but then gave each

* Petitioner wrongly states that the court of appeals “evaded the

Tenth Amendment issue in this case by ignoring mandatory language of

Title V.” Pet. Brief at 16. In fact, the court expressly addressed and

rejected this contention. Browner, 80 F.3d at 883 (Pet. App. 30).

Similarly , Justice O’Connor rejected a similar argument in New York,

stating that courts should interpret statutes to avoid constitutional

problems unless such interpretation would clearly be contrary to

congressional intent. New York, 505 U.S. at 170.

10

state the ability to end the federal program by

implementing its own state environmental

regulations that met certain criteria. In the

present situation, the federal government gives

the states the chance to enact their own

regulations before the federal plan is imposed.

For purposes of constitutional analysis, we

cannot see how it makes a difference whether

the federal plan is imposed first, or whether

the states are given the chance to avoid

imposition of the federal plan first. If

anything, the CAA’s method -- to give the

states a chance first to avoid imposition of any

federal plan ... -- seems less coercive than the

program upheld in Hodel.

Browner, 80 F.3d at 882-83 (Pet. App. 29-30).

This Court’s decision in New York v. United States,

505 U.S. 144 (1992), also fully supports the court of

appeals’ ruling that the federal implementation requirement is

constitutional. In New York, this Court held that the Low

Level Radioactive Waste Policy Amendments Act, as a

whole, did not coerce state compliance because Congress

offered the states a choice to regulate according to federal

standards or have the state rules preempted by federal

regulation. Id, at 167. Writing for the Court, Justice

O’Connor stated that such programs give the states a choice:

“they may choose to have the Federal Government rather than

the State bear the expense of a federally mandated regulatory

program ....” Id. at 168.

In New York, the Court found the Act’s monetary and

access incentives were constitutional exercises of Congress’

authority under the Commerce and Spending Clauses of the

1]

U.S. Constitution. The third provision, however,

commanded the states either to regulate according to federal

statute or to take title to radioactive waste generated within its

borders. Id, at 175. The Court found this provision

unconstitutional because Congress may neither command the

states to regulate nor compel transfer of ownership of

radioactive waste from waste generators to recalcitrant states.

Unlike the regulatory framework at issue here, Congress

provided no option for the state to decline the federal

program, thus impermissibly crossing the line from

encouragement to coercion. Id, at 175-77.

By contrast, Congress in the Clean Air Act has given

the states the option to decline the federal program or avoid

preemption and implement their own plans that meet federal

standards. Browner, 80 F.3d at 883 (Pet. App. 30). The

state thus may “do nothing,” leaving the federal government

to implement the federal program.’ Id, at 882 (Pet. App.

29). Under the analyses in both New York and Hodel, the

court of appeals thus properly found that the CAA does not

> Printz v. United States and Mack v. United States, Nos. 95-

1478 and 95-1503, involving provisions of the Brady Bill, and currently

under review by this Court, are distinguishable from Browner. Under the

Brady Bill, Congress has directly ordered the state chief law enforcement

officers to conduct background checks of persons seeking to purchase

handguns until 1998 when a national background check system will be in

place. Petitioner’s Brief on Writ of Certiorari. Printz v, United States,

Nos. 95-1478 (LEXIS, Genfed library, Briefs file). By contrast, Browner

involves a program of cooperative federalism; states are not coerced but

rather encouraged through a series of incentives to administer an air

pollution permit program. The critical distinction between the Brady Bill

provision and the CAA is that, under the CAA, states may opt ot to

regulate.

12

cross the line from inducement to coercion. Browner, 80

F.3d at 882 (Pet. App. 28-30).

The court of appeals also correctly determined that the

sanctions provisions, which trigger withholding of federal

highway funding, discussed in Section II.B. infra, and which

impose a 2-1 emissions offset, are within congressional

authority and do not violate the Tenth Amendment. Congress

may develop incentives to encourage state implementation so

long as each is a proper exercise of congressional authority.

See New York, 505 U.S. at 166-68.

In this case, the court of appeals found that the

requirement of a 2-1 emissions offset for new or expanded

sources of stationary pollution in nonattainment areas did not

pose a Tenth Amendment concern because it applies to private

pollution sources, not states. Browner, 80 F.3d at 882 (Pet.

App. 28). This sanction thus does not burden the state as a

governmental unit but falls on private parties. As Justice

O’Connor wrote in an analogous situation, such action “does

not violate the Tenth Amendment, for it merely pre-empts

state control of private conduct, rather than regulating the

‘States as States’.” FERC v. Mississippi, 456 U.S. 742, 775

n.1 (1981) (Justice O’Connor concurring in part, dissenting

in part).

There is also no basis for the Commonwealth’s

contention that the court of appeals’ analysis is faulty for

allegedly failing to assess the cumulative effects of the

sanctions. To the contrary, the court of appeals properly

followed this Court’s decision in New York, which requires

an analysis of each individual incentive to determine whether

it is a proper exercise of congressional authority under the

Constitution.

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In addition, petitioner’s assertion that the sanctions are

coercive because they will continue after a federally

implemented program is in place is also without merit.

Congress clearly has the authority under its Commerce and

Spending Clauses, as the court of appeals found, directly to

impose restrictions designed to reduce overall pollution, such

as the 2-1 emissions offset and the withholding of federal

funds for transportation projects that increase use of the

automobile. Browner, 80 F.3d at 882 (Pet. App. 28).

Accordingly, it is well within Congress’ authority to impose

these restrictions as sanctions if the federal government must

bear the full responsibility for implementation in the event

that the state chooses not to administer the title V program.°

B. The Court of Appeals Properly Relied on

this Court’s Ruling in South Dakota v. Dole

in Holding that Congress Could Condition

Receipt of Federal Highway Funds on

Compliance with the Requirements of Title

V.

The court of appeals also properly held that the

highway sanction is a valid exercise of congressional

authority under the Spending and Commerce Clauses.

* Moreover, Petitioner erroneously states that EPA has the option

umder section 113 of the CAA to take administrative, civil and criminal

action against a noncomplying State. Pet. Brief at 20. As the court of

appeals noted, section 113 deals not with disapproval of a permit program

but with “State Failure to enforce SIP or permit program.” It explicitly

applies only after a program has been approved, and then only to

“violations of . ... an approved permit program.” Browner, 80 F.3d at

881 n.6 (Pet. App. 25) (citing CAA § 113, 42 U.S.C. § 7413) (Pet. App.

68).

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Browner, 80 F.3d at 881 (Pet. App. 26-27). As the court of

appeals stated, “[b]ecause the elimination of air poliution

promotes the general welfare, Congress may tie the award of

federal funds to the states’ efforts to eliminate air pollution .

. Furthermore, the Commerce Clause . . . gives Congress

the power to regulate ‘activities causing air or water

pollution, or other environmental hazards that may have

effects in more than one state.’” Id. (quoting Hodel, 452

U.S. 264, 282 (1981)).

Having determined that the withholding of federal

funds was validly based on the Spending and Commerce

Clauses, the court of appeals analyzed the sanction under this

Court’s decision in South Dakota v. Dole, 483 U.S. 203, 211

(1987), to determine whether Congress overstepped its

bounds under the Tenth Amendment. The court’s analysis

involved two inquiries. First, whether “the financial

inducement offered by Congress [is] so coercive as to pass the

point at which ‘pressure turns into compulsion.’” Browner,

80 F.3d at 881 (quoting South Dakota, 483 U.S. at 211) (Pet.

App. 26). Second, whether the conditions to which the

federal funds are subject are “‘reasonably related to the

purpose for which the funds are expended.’” Id. (quoting

South Dakota, 483 U.S. at 213).

First, the court of appeals properly held that the

highway sanction “does not rise to the level of ‘outright

coercion.’” Browner, 80 F.3d at 882 (Pet. App. 27). As the

court explained, a state does not lose any highway funds that

would be spent in areas of the state that are in attainment.

Browner, 80 F.3d at 881 (Pet. App. 27). The withholding of

federal funds only applies to projects that would increase

pollution in areas of the state that do not meet air quality

standards. And, even within these nonattainment areas, eight

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exemptions allow federal funding for a variety of projects

designed to promote safety or reduce air pollution. Id.

These exemptions include: (1) public transit capital programs;

(2) construction of highways or lanes for buses or other high

occupancy vehicles; (3) employee work-trip-related

reductions; (4) projects to improve traffic flow and reduce

emissions; (5) fringe and corridor parking projects; (6)

vehicle control programs for downtown or congested areas;

(7) vehicle management and information systems to reduce

congestion and emissions; and (8) any other transportation

related programs that would improve air quality and not

encourage single occupancy vehicle use. CAA

§ 179(b)(1)(A)&(B), 42 U.S.C. § 7509 (b)(1)(A)&(B) (Pet.

App. 74-75).

Moreover, the court noted that the highway sanction

is less severe than other sanctions upheld in other cases. Id.

at 881-82 (Pet. App. 27). For example, under the statute in

New York, a claim to all federal grants was forfeited if

certain milestones were missed. See New York, 505 U.S. at

173. Similarly, in Nevada v. Skinner, 884 F.2d 445, 448

(9th Cir. 1989), all federal highway funding was withheld

unless the state posted a maximum speed limit of 55 miles per

hour on all roads, including those that were not part of the

federal interstate network.

Second, the court of appeals found that the highway

funding conditions are “reasonably related” to the goal of

reducing air pollution. Browner, 80 F.3d at 882 (Pet. App.

28). As the court stated:

The CAA as a whole is a comprehensive

scheme to cope with the problem of air

pollution from ail sources. Congress may

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ensure that funds it allocates are not used to

exacerbate the overall problem of air

pollution. It is therefore of no consequence

that a highway sanction, which will have the

effect of reducing emissions from mobile

pollution sources, is being used to induce

compliance with a portion of the Act designed

to reduce emissions from stationary sources.

Id, (Pet. App. 28).

The court’s analysis is correct. The legislative history

of the Clean Air Act is replete with references to the impact

of vehicle emissions on air quality. See, e.g., H. Rep. No.

101-490, 101st Cong., 2d Sess. 4 (1990). In furtherance of

the Clean Air Act’s goals and in order to persuade states to

implement the statute, Congress conditioned receipt of federal

transportation funds in nonattainment areas on an approvable

state title V program for stationary sources and an adequate

State implementation plan (SIP) for mobile (vehicle)

emissions. The EPA Administrator is instructed to apply the

sanctions provisions both to nonapproved title V programs

and to inadequate SIPs. The highway funding sanctions will

further reduce vollution from vehicles in the most polluted

areas of the state. Thus, the conditions clearly “bear some

relationship to the purpose of the federal spending.” New

York, 505 U.S. 144 at 167.

CONCLUSION

Rule 10(c) of the Rules of this Court provides that a

writ of certiorari will be granted only for compelling reasons.

Because there are no such compelling reasons in this case,

this Court should refuse to exercise its discretion to hear this

case. In particular, the court of appeals properly applied the

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principles that this Court enunciated in Chevron in deferring

to EPA’s interpretation of the Clean Air Act to limit standing

according to Article III of the U.S. Constitution. The court

of appeals also properly found title V to be a valid exercise of

congressional authority under the Commerce and Spending

Clauses and consistent with the Tenth Amendment principles.

Because the court’s decision is also fully consistent with the

precedent of this Court, including New York v. United

States, Hodel v. Virginia Surface Mining & Rec!

‘n., and South Dakota v. Dole, and is in conflict with no

other reported federal circuit case, this Court should deny the

petition for writ of certiorari.

Respectfully submitted,

Katherine E. Slaughter

Deborah M. Murray

Attorneys for Intervenors

Southern Environmental

Law Center

201 West Main St., Suite 14

Charlottesville, VA 22902

804/977-4090

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