# Opposition Brief — Virginia v. Browner

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1601%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1090

## Text

o

' un 8
~“—a0 Arif? ‘.

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
URIS EMI CUNARD cc iw sv awitesecneuess i
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

17

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.

18

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

19

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.

20

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

21

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1601%3A4. Public record. Not legal advice.