Opposition Brief — Virginia v. Browner

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No. 96-567 ee es

In the | .

Supreme Court of the United States DEC 12 199

October Term, 1996

ee oo we oe OO ee

COMMONWEALTH OF VIRGINIA,

Petitioner,

Vv.

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

BRIEF IN OPPOSITION TO WRIT OF CERTIORARI

BY INTERVENORS ENVIRONMENTAL DEFENSE

FUND, INC., KATHLEEN F. DERRICOTT, CLIFTON

E. DERRICOTT, ANDRE L. BROWN, CALEATA

JOHNSON AND GWEN HEDGEPETH

Barbara R. Arnwine

Thomas J. Henderson

David S. Bailey”

Lawyers’ Committee for Civil Rights Under Law

1450 G Street, NW

Washington, D.C. 20005

TEL: 202-662-8600

“Counsel of Record

QUESTION PRESENTED

Because of their particular interest in securing access

to the courts to review decisions to issue permits under the

Clean Air Act, Intervenors Environmental Defense Fund,

Inc., Kathleen F. Derricott, Clifton E. Derricott, Andre L.

Brown, Caleata Johnson, and Gwen Hedgepeth limit their

Brief in Opposition to the first of the three questions

presented in the Commonwealth of Virginia's Petition for

Certiorari. These Intervenors suggest that the question is

more appropriately framed as follows:

Whether the Environmental Protection Agency

lawfully refused to authorize the

Commonwealth of Virginia's administration of

the federal Clean Air Act permit program

because Virginia would impose upon the

program only narrow, restrictive opportunities

for state court review of state agency permit

decisions in direct contradiction to the Act's

requirements of expansive citizen participation

in and judicial review of, permit decisions.

TABLE OF CONTENTS

Page

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TAREE GP CORUEMINES os sc knve tambeeebine ii

TARR OF AUTERAREEEES svc ccweenesaeauhen iv

STATEMENT OF THE CASE ......cccccvcens l

REASONS FOR DENYING THE WRIT .......... 8

The Commonwealth of Virginia Has Provided No

Basis Recognized By This Court, To Warrant Review

Of The Decision Of The Fourth Circuit With Respect

To The Judicial Review Provisions Of The Clean Air

Act.

A. The Commonwealth Has

Offered No _ Reasonable

Alternative Interpretation Of

The Judicial Review

Requirements of §502(b)(6) Of

The Clean Air Act That Merits

Review By This Court .......0000- 9

B. The Decision Of The Court Of

Appeals Below Does Not

Conflict With Applicable

Decisions Of This Court........... 17

— eo

a ee

Page

ae The Decision Of The Court Of

Appeals Below Is Not In

Conflict With Decisions Of

Any Other Courts of Appeals ....... 20

eo te | Gre ee ee 21

iii

ausuiomacnidiliadl

TABLE OF AUTHORITIES

Page

Cases

Board of Medici Vireinia Physical

Therapy Ass’n, 13 Va. App. 458,

Ey I, bb occ kena c cake akes 5

Chevron, U.S.A., Inc, v. Natural

Resources Defense Council, 467

Gee, CR. Ou EG Cae eA we Went ba RAO 15

Citi for Clean Air v. C it

of Virginia, 13 Va. App. 430,

rg R &® bo | re ae are ee 4,5

C Ith of Vireini B

80 F.3d 869 (4th Cir. 1996), petition

for cert. filed (No. 96-567).......... 1, 5, 13, 16, 18

State Water Control Board, 12 Va. App. 456,

pe ee Se eS 3. cs aS ook de ea ee ee 4 2

Environmental Defense Fund v. State

Water Control Board, Chan. No.

HB-241-3 (City of Richmond, 1992) ............ bs

Gregory vy. Ashcroft,

ge & 4: ee a ee ee 17, 18, 19

IV

eT ee

— I S CO

Comm’n, 219 Va. 675, 250

Hh ee: ere eee ee ee ee 4

Hodel v. Virginia Surface Mini

1 Rec] wey wy

ee 8s.) eee eee eee re 2 oe 2 19

New York v. United States,

SUS U.S. 146 CIFRE) oc ec ccc seeseneseveses 14

neitiaie® ‘in Savi

the Environment y. Kay, 768

F. Supp. 1144

8 aa ee ee eee ee ae ee 7

Town of Fries v, State Water

Control Board, 13 Va. App.

ae FR RE OE, | re rare 4,5

Warth v. Seldin, 422 U.S. 490 (1975)......... 14, 15

United States Constitution

Pi. Serre ee eae eee ee Se 2, 14

Federal Statutes

2 eo: Pere wrrrrryrae rrr yr) yes 12

42 U.S.C. § 7661a(b) (CAA

COUPEE 6 cesnccasesevwes 2, 9, 10, 14, 16, 18

Code of Virginia

We. Come © TR U-ESIGD «oc en vas be eewee seks 4

Federal Regulations

CPG... § TOGO cic vances Ga Weudeas 10

ee EO EPP Pere? Perret Le 7, is

ol, = SS. Seveerrerrry, ree ee 12

De FUG MR: BONO. ad ender casey ee eee en 12

Other Authorities

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

The Clean Air Act Amendments of 1990, reprinted

in 136 Cong. Rec. 516, 941 (daily ed. October 27,

OPE b 00 Chav bs a BAe CbOE OE 11

Page

Joint Legislative Audit and Review Commission of the

Virginia General Assembly, Solid Waste Facility

M in Vireinia: I Minos

vii

OLED A Le

BRIEF IN OPPOSITION TO WRIT OF CERTIORARI

BY INTERVENORS ENVIRONMENTAL DEFENSE

FUND, INC.', KATHLEEN F. DERRICOTT, CLIFTON E.

DERRICOTT, ANDRE L. BROWN, CALEATA

JOHNSON, AND GWEN HEDGEPETH

STATEMENT OF THE CASE

The Commonwealth of Virginia (“Commonwealth”)

has filed a petition for certiorari asking this Court to review

the decision of the Court of Appeals for the Fourth Circuit

holding that the Environmental Protection Agency (“EPA”)

properly did not act arbitrarily, capriciously or unlawfully in

refusing to delegate administration of the Clean Air Act air

permit program. Commonwealth v. Browner, 80 F.3d 879

(4th Cir. 1996). This Brief in Opposition is submitted by

Intervenors, Environmental Defense Fund, Inc. and Kathleen

f. Derricott, Clifton E. Derricott, Andre L. Brown, Caleata

Johnson and Gwen Hedgepeth (“EDF Intervenors’).

Intervenors, a national nonprofit environmental organization

with thousands of Virginia members, and five individual

black citizens of Virginia, have all experienced first hand the

harsh consequences of Virginia’s barriers to state court review

of environmental permitting, which serve to suppress citizen

involvement and grant special privilege to permit applicants.

Intervenors thus oppose the Commonwealth’s efforts to

subvert the express actions of Congress to expand and

encourage citizen participation and afford expansive judicial

' The Environmental Defense Fund, Inc., is a not-for-profit

environmental membership organization. Pursuant to Supreme Court rule

29.6, there are no other parent companies or wholly owned companies.

]

review in the process of issuing air emission permits, by

seeking to extend its own harsh barriers to judicial review to

the administration of the federal Clean Air Act.

Because the primary interests of EDF Intervenors are

in securing meaningful and appropriate citizen participation

in, and judicial review of, Clean Air Act air permit decisions

in Virginia, EDF Intervenors address only the first question

presented in Virginia's petition for certiorari — that regarding

the failure of Virginia to satisfy the judicial review

requirements set forth in §502(b)(6) of the Act, 42 U.S.C.

§7661a(b)(6). EDF Intervenors support the position of the

EPA and the remaining Intervenors with regard to the second

and third questions presented, but do not address those issues

here.

The decision of the Fourth Circuit affirmed EPA’s

determination not to delegate Clean Air Act program

administration to the Commonwealth, in part, because

Virginia law does not allow for judicial review of decisions

that would be made by state agencies in granting or denying

air emission permits under the Act to the extent required if

delegation is to be made. The Court of Appeals held that the

Act required expansive public participation and judicial

review, that the extraordinarily-restrictive limits on judicial

review in the Commoiiwealth do not comport with those

requirements, and that the EPA’s limiting interpretation of the

scope of the Act’s judicial review provisions to conform to

the minimum requisites of Article III of the Constitution was

reasonable and appropriate. The Court of Appeals also

rejected the Commonwealth's argument that the Act’s judicial

review provisions should, in effect, be read out of the Act or,

2

stated differently, that those provisions should be interpreted

to permit a state to impose its own sharply restrictive

opportunities for judicial review on administration of the

federal program.

The Commonwealth sought and was denied rehearing

en banc of the panel decision. It is significant that the

Commonwealth did not seek rehearing of the panel decision

on the issue of the judicial review provisions in seeking en

banc rehearing.

In its Petition, under the guise of an asserted intrusion

upon its state sovereignty, the Commonwealth demands the

award of federal dollars to administer the Clean Air Act

permit program despite its refusal to conform to

Congressional mandates imposed as a prerequisite to federal

program delegation. The first question presented by

Petitioners asks this Court to impose the state’s restrictive

concept of judicial review upon a federal program delegation

that is contrary to the minimum standards set by Congress.

The Commonwealth has imposed the most severe

limitations upon judicial review of environmental agency

decisions of any state. Under a long line of Virginia Supreme

Court decisions interpreting the environmental and

administrative laws of the Commonwealth, the state’s highest

court and its lower appellate courts have repeatedly concluded

that Virginia law effectively bars judicial review of state

agency air and water permit decisions to all but the permit

applicant.’ Modification to the judicial review provisions of

its Air Pollution statute in 1995 largely codified this existing

precedent and essentially retained the restrictions on judicial

review applicable to air permit decisions.?

Thus, under Virginia law, citizens are denied standing

to seek judicial review of any air permit decision even though

they may live or own property downwind or downstream of

the permitted facility, even if they have riparian rights or live

next door.* Under these limits on judicial review, the use of

? Prior to 1995, the Commonwealth’s air and water statutes flatly

prohibited judicial review by anyone but the “owner”, ¢.g., the permit

applicant. Environmental Defense Fund v. Virginia State Water Control

Board, 12 Va. App. 456, 404 S.E.2d 728 (1991); Town of Fries y. State

Water Control Board, 13 Va. App. 213, 409 S.E.2d 634 (1991); Citizens

13 Va. App. 430, 412 S.E.2d

715 (1991).

* The modified statutes purport to allow standing to participants in the

public process related to an agency's decision, but only if the party can

demonstrate that (1) such person has suffered an actual, threatened or

imminent injury; (ii) such injury is an invasion of an immediate, legally

protected, pecuniary and substantial interest which is concrete and

particularized; (iii) such injury is fairly traceable to the decision of the

Board and not the result of the action of some third party not before the

court; and (iv) such injury will likely be redressed by a favorable decision

by the court.” (Emphasis added). Va. Code §10.1-1318. The codification

of the established requisites of “immediate” and “pecuniary and substantial”

essentially continues the bar to anyone but the permit applicant from

seeking judicial review. See,

comm'n, 219 Va. 675, 250 S.E.2d 347 (1979){immediate, pecuniary and

substantial interest required).

tociinaed.. )

the environmental air resource is immaterial, as is the

potential threat to health or welfare. For the same reasons --

lack of standing -- citizens also may not intervene in state

enforcement actions for permit violations. Indeed, even the

denial of a request for either an informal or formal

administrative hearing is not appealable.’ Finally, only

promulgated regulations may be reviewed, while an agency's

use of unpromulgated rules may be only appealed by a permit

applicant.®

Intervenors in this action include five individual

African American citizens. As members of a minority

population, they are particularly affected by barriers against

judicial review of agency decisions. A number of

governmental and private studies have documented the

disproportionate placement of heavily polluting facilities in

areas which members of disadvantaged racial groups

predominantly reside, even when compared to communities

(...continued)

(downstream landowners, riparian users, fishermen); Town of Fries vy.

State Water Control Board, (adjacent permit holder, downstream municipal

water supply intake); Citizens for Clean Air v. Commonwealth of Virginia.

(downwind property owners). Cases cited supra, note 2. See

Commonwealth _v. Browner, 80 F.3d 869, 879 (4th Cir. 1996)

(Commonwealth Petition, App. 21-22.)

4 .

Environmental Defense Fund y. State Water Control Board, 12 Va.

App. 456, 404 S.E.2d 728 (1991) (no review of denial of formal hearing

request); Environmental Defense Fund v. State Water Control Board.

Chan. No. HB-241-3 (City of Richmond, 1992) (no review of denial of

informal hearing).

* Board of Medicine v, Virginia Physical Therapy Ass'n. 13 Va. App.

458, 413 S.E.2d 59 (1991), aff'd 245 Va. 125, 427 S.E.2d 183 (1993).

5

similar in all respects but race.’ The reasons for such

disproportionate placements are clear. First, the minority

residents of these areas lack the voting power to undo by

legislation Virginia's restrictions on their right to challenge

the State's decisions issuing permits for polluting facilities in

their areas. Second, the denial of access to the courts for all

but the permit applicant or holder limits to those with political

or economic influence the ability to affect state or agency

decisions through extra-judicial efforts. Third, the exclusive

availability of judicial review to the permit applicant skews

the decision-making process to the extent that only decisions

adverse to permit holder are subject to judicial review and

correction.* The result is a system in which the lives, health,

~ This issue was first addressed in a study prepared by the U.S.

Government Accounting Office, Siting of Hazardous Waste Landfills and

Their Correlation with Racial and Economic Status of Surrounding

Communities (1983) ([bJlacks make up the majority of the population in

three of the four communities where the landfills are located). That study

was followed by a far larger study by the United Church of Christ

Commission for Racial Justice, Toxic Wastes and Race in the United

States (1987) (although socio-economic status appears to play an important

role in siting of hazardous waste facilities, race still proves to be a more

significant factor). An EPA report concluded that racial minority and low-

income populations experience higher than average exposure to air

pollutants, hazardous waste facilities, comtaminated fish, and agricultural

pesticides, Environmental Equity, Reducing Risk for all Communities,

EPA A230-R-92-008 (June 1992).

* “Without the possibility of judicial review by citizens, public

participation before a State administrative agency could become a paper

exercise. State officials will inevitably spend less time considering and

responding to comments of parties who have no standing to sue, but will

(continued...)

AOE AE AA AS sO ttt ATs ie aU Dit thet a) ate A A ROLE De bin” AB A ICL bas

OD se,

homes and property of minority citizens may be imperiled by

the state agency actions without even the opportunity to

question the legality and propriety of such actions before a

court.

Increasingly, members of racial minorities perceive

that environmentally risky and unwanted land uses involving

pollution and toxic materials are disproportionately located

next to them. Although this question is being debated

throughout the nation, there is strong evidence that, in

Virginia, it is reality. See, e.g., Residents Interested in

Saving the Environment v. Kay, 768 F. Supp. 1144, 1149

(E.D. Va. 1991) aff'd, 768 F.2d 573 (“The placement of

landfills in King and Queen County from 1969 to present has

had a disproportionate impact on black residents.”); Joint

Legislative Audit and Review Commission of the Virginia

General Assembly, Solid Waste Facility Management in

Virginia: Impact on Minority Communities (1995) (“solid

waste facilities in minority communities received fewer

inspections and had especially long periods of non-compliance

compared to those facilities in white communities”).

States clearly have the ability to limit judicial review

of matters solely within the province of a state, so long as

those limits do not transgress Fourteenth Amendment

* (...continued)

be more attentive to the comments of parties who can challenge the

administrative decision in court.” EPA, “Amendment to Requirements for

Authorized State Permit Programs Under Section 402 of the Clean Water

Act”, Final Rule, 61 Fed. Reg. 20972 (1996) (Codified at 40 C.F.R. §

123.30).

guarantees. Here, however, Virginia seeks instead to impose

its peculiarly restrictive limits on the availability of judicial

review upon the administration of a federal program designed

to control air pollution nationwide. Thus, this case does not

raise concerns of state sovereignty. Rather, the case concerns

only the authority of Congress to impose conditions upon

delegation to a state of the administration of a federal

program to protect the nation's air quality. Here, as with a

host of other federal environmental programs, the state is not

obligated to undertake program delegation. The

Commonwealth may forego the incentives offered by

Congress and do nothing, in which event EPA will operate

the program in accord with Congressional instructions. Here,

as a part of a national program, Congress simply required a

consistent minimum standard of judicial review for permit

decisions to be made under the Act and EPA has applied that

requirement. Thus, it cannot fairly be argued that either

Congress or EPA has exceeded the limits of federal power or

intruded on state sovereignty.

REASONS FOR DENYING THE WRIT

The Commonwealth of Virginia Has Provided No

Basis Recognized By This Court, To Warrant Review

Of The Decision Of The Fourth Circuit With Respect

To The Judicial Review Provisions Of The Clean Air

Act.

The Commonwealth asserts in its Petition that review

of the decision below is warranted because it presents an

important federal question that should be decided by this

Court, a conflict with relevant decisions of this Court, and a

8

conflict with decisions of other federal Courts of Appeals.

However, the Commonwealth is unable to support any of

those assertions. With respect to the Court of Appeals’

determinations regarding judicial review provisions of the

Act. To the contrary, as discussed within, Petitioner can

formulate no alternate to the Court of Appeals’ interpretation

of those provisions that would merit review by this Court.

Neither can Petition demonstrate any conflict between the

Court of Appeals’ decision and relevant decisions of this

Court or other federal Courts of Appeals. Accordingly, the

writ should be denied.

A. The Commonwealth Has

Offered No _ Reasonable

Alternative Interpretation Of

The Judicial Review

Requirements of §502(b)(6) Of

The Clean Air Act That Merits

Review By This Court

Section 502(b)(6) of the Clean Air Act, 42 U.S.C. §

7661a(b), provides that, in order to receive federal program

delegation, a state program must provide the opportunity for

judicial review to three categories of persons. Specifically,

§502(b)(6) states that a state program must provide:

Adequate, streamlined, and reasonable

procedures for expeditiously determining when

applications are complete, for processing such

applications, for public notice, including

offering an opportunity for public comment

and a hearing, and for expeditious review of

9

permit actions, including applications,

renewals, or revisions, and including an

= opportunity for judicial review in State court of

the final permit action by 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 (emphasis added).

EPA incorporated this statutory language verbatim into the

Clean Air Act program requirements according to which it

assessed Virginia’s compliance. 40 C.F.R. § 70.4(b)(3)(x).

The language of the Act plainly requires expansive

opportunities for judicial review of permit actions as a

condition of program delegation to a state. The legislative

history is equally clear that this section was intended to

preserve and expand the availability of judicial review, not

restrict it. These provisions were deemed essential to the fair

treatment of all parties in the permit issuance process, as

indicated by the Statement of the Senate Managers of the Act:

Several other provisions [in section 502(b)(6)]

are included to ensure fair treatment in the

permit process. For example, we make clear

that judicial review of final actions by the

permitting authority to issue or deny permits

shall be available in State court to anyone who

could obtain such review under any applicable

law. This provision ensures that existing

provisions of law governing the availability of

review of final actions on permit applications

10

are in no way limited, and that interested

parties who arguably are affected by permit

decisions are guaranteed their day in court.

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

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

Rec. 516, 941 (daily ed. October 27, 1990) (emphasis added).

It is likewise clear that the public participation and

judicial review requirements serve important roles in the

functioning of delegated programs. They serve to ensure that

the federal-state partnership inherent in delegated federal

programs is implemented in a manner which not only

incorporates federal and state resources, but the resources of

citizens as well in fighting the common pollution enemy. The

critical importance of active and meaningful citizen

participation in successfully implementing environmental

programs cannot be overemphasized, and are particularly

relevant in delegated programs where federal oversight is

necessarily relaxed.’ Moreover, the opportunity for judicial

* In describing the respective delegation roles of the federal-state

partnership and citizens under the Clean Water Act permit program,

analogous to the Clean Air Act permit program now before the Court,

EPA stated: “EPA [has a] strong policy interest in deferring to State

administration of authorized NPDES [permit] programs. EPA firmly

believes that States should implement the NPDES program in lieu of the

federal government. However, EPA just as firmly believes that the

opportunity for citizen participation is a vital component of a State

NPDES program. In authorizing State programs to act in lieu of the

federal government, EPA must ensure that the implementation of the State

program will be substantially adequate and procedurally fair. Because this

(continued...)

1]

review is an essential element even to effective public

participation at the administrative level, as EPA recognized in

promulgating parallel rules requiring the availability of state

judicial review for delegated federal programs under the

Clean Water Act, 33 U.S.C. § 1251:

When citizens are denied the opportunity to

challenge executive decisions in court, their

ability to influence permitting decisions

through other required elements of public

participation, such as through public comments

and public hearings on proposed permits, may

be seriously compromised. If citizens perceive

that a state is not addressing their concerns

about permits because the citizens have no

recourse to an impartial judiciary, that

perception also has a chilling effect on all the

remaining forms of public participation in the

permitting process.

Amendment to Requirements for Authorized State Permit

Programs Under Section 402 of the Clean Water Act, 60 Fed.

Reg. 14588, 14589 (March 17, 1995) (notice of proposed rule

* (...continued)

rule will provide additional assurance of State program adequacy and

fairness, it will allow EPA to exercise less oversight of State programs and

allow more State autonomy in implementing NPDES [permit] programs.”

Id., 61 Fed. Reg. at 20974.

12

making"). (Cited by the lower court with approval in

Commonwealth of Virginia v. Browner, 80 F.3d 869, 880

(4th Cir. 1996). (App. 21-22).

Given the express statutory language, clear intent of

Congress, and important role of judicial review in the

functioning of the delegated program, the only issue as to

which an interpretation of the judicial review provisions is

required, if at all, is with respect to the phrase affording

judicial review to “any person who participated in the public

comment process.” The Court of Appeals, as well as both

EPA and the Commonwealth, all agreed that this phrase

requires a limiting interpretation. This is necessary because

the phrase does not contain language which expressly limits

its application to participants in the public comment process

who meet the requisites of Article III standing or, as the

Commonwealth argues, without such an _ interpretation

limiting its reach to Article III requirements “the provision

requires states to affort standing, regardless of injury to any

person who participated in the public comment process”. Pet.

at 12.

It has long been recognized that although Congress has

no power to alter the basic Article III standing requirements,

it does have the power to waive prudential obstacles to

standing:

10 The EPA amendments were finalized on June 7, 1996, and are

codified at 40 C.F.R. § 123.30. i.

13

Congress may grant an express right of action

to persons who otherwise would be barred by

prudential standing rules. Of course, Art. III’s

requirement remains: the plaintiff still must

allege a distinct and palpable injury to himself,

even if it is an injury shared by a large class of

other possible litigants. But so long as this

requirement is satisfied, persons to whom

Congress has granied a right of action, either

expressly or by clear implication, may have

Standing to seek relief on the basis of the legal

rights and interests of others, and, indeed, may

invoke the general public interest in support of

their claim.

Warth vy. Seldin, 422 U.S. 490, 501 (1975) (citations

omitted).

In enacting Section 502(b)(6), 42 U.S.C.§

7661a(b)(6), Congress chose to exercise that right by

expanding the rights to judicial review of air permits. The

legislative history indicates that Congress felt strongly about

the availability of judicial review, and clearly meant to

remove every prudential barrier within their authority in order

to encourage citizen participation. At the same time,

Congress is under no requirement specifically to restate in

every Statute the requiremenst of Article III and every statute

is to be interpreted, if at all possible, in a manner that

conforms to the Constitution. New York v. United States,

505 U.S. 144, 170 (1992) (citations omitted). This canon of

judicial construction ensures that every act of Congress shall

be contained within its constitutional bounds.

14

Recognizing the plain language of the Act itself,

combined with the long-standing ability of Congress to grant

any right of action subject to the Constitutional requirements

of Article III, EPA correctly interpreted the provisions of

section 502(b)(6) to establish a “minimum floor” as limited by

the requirements of Article III of the U.S. Constitution.

The Fourth Circuit upheld EPA’s interpretation under

the general rule established in Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, 467 U.S. 837 (1984).

Commonwealth of Virginia, 80 F.3d at 878 (App. 17-18) at

878. Finding EPA’s interpretation in harmony with the

Statute, and resolving the “slight tension” within section

502(b)(6), the Fourth Circuit ruled that EPA’s interpretation

was a “permissible construction of the statute” and entitled to

deference. Id.

Intervenors assert that the language is plain on its face,

and if any interpretation is required by EPA, it is negligible.

Further, the interpretation given by EPA is so fundamental

that it is no interpretation at all, but rather a reiteration of the

basic constitutional holding of this Court in Warth v. Seldin,

422 U.S. at 501. Similarly, the “deference” granted to EPA

by the lower court was minimal, and the statute’s words and

Congressional intent were easily discernible without any

deference to EPA.

The Commonwealth’s Petition fails even to identify a

reasonable, alternative to this interpretation of §502(b)(6) that

it suggests merits this Court’s attention. Although this failure

is disguised by the profuse assertions regarding state

sovereignty, it warrants denial of the writ.

15

Although it poses no such interpretation to this Court,

the Commonwealth suggested an interpretation in the court

below, which the Court of Appeals carefully considered and

properly rejected. Specifically, the Commonwealth suggested

that that language of §502(b)(6) granting judicial review to

those in the second category of §502(b)(6) “any person who

participated in the public comment process” — should be

limited by the language of the third category — “any other

person who could obtain judicial review. . .under applicable

law.” Commonwealth v. Browner, 80 F.3d at 877 (App. 15).

The Court of Appeals properly rejected that argument holding

that “Virginia’s proposed reading is contrary to ordinary

principles of statutory construction and to the rules of English

usage,” Id, and one that would render the first to categories

of persons granted review “mere surplusage.” Id, (Citations

omitted).

Thus, in contrast to the limiting interpretation of EPA

held appropriate by the Court of Appeals, which the Court

found “harmonizes” the several portions of the Act and

conforms it to Article III requisites, the only interpretation the

Commonwealth has offered is one that would render the

section meaningless by eliminating any minimum floor for

judicial review and supplanting it, instead, with whatever

judicial review provisions any state wished to impose —

however restrictive.

In short, in the face of express statutory language,

clear expressions of congressional intent, the important

purposes served in the functions of delegated programs each

of which mandates expansive judicial review of permit

decisions, and a reasonable, harmonizing interpretation

16

which, at the same time, recognizes the authority of Congress

to remove prudential barriers to standing and the requisites of

Article III, to the extent that the Commonwealth offers any

alternative interpretation it is a tortured one that would

require in the administration of a federal program application

of each state's peculiar limits on judicial review, even to the

extent of limiting that opportunity to the permit applicant

alone. The Commonwealth has carefully avoided presenting

such a proposed interpretation to this Court in its Petition, and

such an interpretation does not merit consideration by this

Court.

B. This Case Presents No Conflict

Between The Established Law

Of This Court That Would

Merit Review

With respect to the first question presented, the

Commonwealth relies exclusively upon a purported conflict

between the decision below and this Court’s decision in

Gregory vy. Ashcroft, 501 U.S. 452 (1991), as a basis for

granting the writ. Pet. 10-16. No such conflict exists. The

Court of Appeals carefully considered the language of

Gregory as applied to this case. A brief review demonstrates

that no conflict exists.

Gregory has no application until a federal program

impinges on some aspect of state sovereignty. Gregory, 501

U.S. at 467 (federal law not applicable to state judges unless

Congress has made it clear that state judges are included).

In Gregory, the question was whether federal law imposed a

direct, involuntary mandate on state judges. Here, the entire

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applicability of the program, whatever, its interpretation, is

voluntary. There is no impingement on state sovereignty in

the Clean Air Act delegation provisions unless the state elects

to accept delegation. While the Commonwealth criticizes the

Fourth Circuit for stating that section 506(b)(6)

unambiguously applies to state courts (Petition at 14), the

Commonwealth ignores the voluntary nature of Clean Air Act

program delegation. For the same reason, the “plain statement

rule” applied in cases such as Gregory does not apply where

Congress has provided a choice for states. As the Supreme

Court stated in Gregory, the requirement that Congress

Clearly state its intent to preempt traditional state sovereign

powers “is nothing more than an acknowledgment that the

States retain substantial sovereign powers under our

constitutional scheme, powers with which Congress does not

readily interfere.” Gregory, 501 at 461. It is a rule of

interpretation designed to avoid a constitutional conflict.

Here, however, there is no such conflict.

Furthermore, for Gregory to even come into play in

the interpretation of this statute, the statute must be, as a

threshold matter, ambiguous as to whether Congress intended

to impinge upon a core state function. As the Fourth Circuit

Opinion correctly notes, there is no such ambiguity present in

this statute. Commonwealth vy, Browner, 80 F.3d at 879.

(App 20). It is clear that the statute requires a delegated state

program to show availability of state court judicial review for

air emission permits. There is no ambiguity on that point

and, thus, Gregory’s admonition to avoid interpretations that

raise constitutional questions is inapplicable.

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No one doubts the principle that control of the state

judiciary is a core state function. Such core functions,

however, are not impacted by any federal law until that

federal law directly impinges upon the state. It was clearly

established by this Court in Hodel v. Virginia Surface Mining

and Reclamation Association, Inc., 452 U.S. 269 (1981), that

even though the federal law may have major impacts on state

natural resource regulation or use, such impacts do not raise

constitutional questions where Congress operates within its

authority and offers the state the option to administer the

program or leave its application to the federal government.

Here, the Commonwealth is free to choose whether it wishes

to accept delegation of the Clean Air Act permit program, and

with it embrace the notions of fairness and citizen

participation, including judicial review, that the Congress has

chosen to impose on programs the states elect to operate.

Whatever application Gregory v. Ashcroft may have to state

sovereignty situations, it is not applicable here.

What the Commonwealth really fears is that its long-

standing restrictions barring citizen access to the courts will

be undercut where, should it fail to accept delegation, the

issuance of air emission permits will be done by EPA, ina

forum where citizen participation is welcomed, and the full

protection of the courts is granted to those who are injured

within the bounds of the U.S. Constitution. As a sovereign

power, the Commonwealth is free to take offense at such

notions, but it is not unconstitutional for the Congress to think

otherwise.

Whatever the Commonwealth's motives may be, it’s

Petition before this Court presents no conflict with Gregory

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or any other case. In fact, the Commonwealth would have

this Court chart a new course for its long-standing application

of the judicial review standard enunciated in Gregory,

converting a rule of interpretation into a process that would

bring every facial federal relationship with state government

into a constitutional confrontation. The Petition fails to state

any substantive grounds for the Court to so dramatically

change its application of the interpretative rule in Gregory.

Rather, the Commonwealth's Petition is an invitation for this

Court to consider Virginia's own views about citizen

standing. The proper forum for that political argument is the

U.S. Congress, not this Court, and the Petition should be

denied.

. The Decision Of The Court Of

Appeals Below Is Not In

Conflict With Decisions Of

Any Other Courts of Appeals

There is no conflict among the Courts of Appeals

regarding the judicial review provisions of the Clean Air Act.

Petitioners indicate that each question presented

satisfies this Court’s several standards as to the grant of a writ

of certiorari, including that the decision below conflicts with

those of other federal courts of appeal. Pet. at 9. However,

the Commonwealth does not cite or refer to a single decision

of a court of appeal that in any way conflicts with the decision

of the Fourth Circuit at issue on the issue of the judicial

review provisions of the Clean Air Act. See Pet. 10-16.

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nn

In fact, there are no decisions of the Courts of Appeal

that conflict with the decision below. This condition is

undoubtedly traceable to the Commonwealth’s uniquely

extreme restrictions on those who have standing to seek

judicial review of state agency decisions on air permits,

discussed above. Nevertheless, the Commonwealth cannot

establish a conflict among federal circuit courts on this issue

that would warrant review of this Court.

CONCLUSION

For the above reasons, the Petition for Writ of

Certiorari should be DENIED.

Respectfully submitted,

Barbara R. Armwine

Thomas J. Henderson

David S. Bailey”

Lawyers’ Committee for Civil Rights Under Law

1450 G Street, NW

Washington, DC 20005

TEL: 202-662-8600

“Counsel of Record

Attorneys for

Environmental Defense Fund, Inc., Kathleen F. Derricott,

Clifton E. Derricott, Andre L. Brown, Caleata Johnson,

Gwen Hedgepeth

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