Opposition Brief — Environmental Protection Agency v. Coalition for Clean Air

'

| FILED

DEC.8 1992

OFFICE OF THE CLERK

No. 92-798

ih THE SUPREME COURT OF THE WRITER STATES

OCTOBER TERM, 1992

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al., PETITIONERS

V.

COALITION FOR CLEAN AIR, INC., et ai.,

RESPONDENTS

On Petition For A Writ Of Certiorari

To the United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

COALITION FOR CLEAN AIR AND SIERRA CLUB

ALAN C. WALTNER*

Law Offices of Alan Waltner

1736 Franklin Street, 8th Floor

Oakland, CA 94612

(510) 465-4494

TRENT ORR

96 Manchester Street

San Francisco, CA 94110

(415) 206-0898

Counsel for Respondents

*Counsel of Record

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Does Section 110(c) of the Clean Air Act, as

amended in 1990, 42 U.S.C. § 7410(c), require the

Environmental Protection Agency ("EPA") to promulgate

Federal Implementation Plans ("FIPs") for ozone and carbon

monoxide for the South Coast Air Basin based upon EPA’s

disapproval in January 1988 of the State Implementation Plan

("SIP") submitted for the South Coast?

2. Should EPA’s representations to Congress prior to

enactment of the 1990 Clean Air Act Amendments, that the

language ultimately adopted in Section 110(c) would mandate

completion of the South Coast FIPs, be considered persuasive in

interpreting the intent of Congress?

3. Independently of the requirements of Section

110(c), does Section 193 of the 1990 Amendments, 42 U.S.C. §

7515, preserve a settlement agreement and order thereon that,

as of the date of the Amendments, required EPA to finalize the

South Coast FIPs and associated control requirements by

February 28, 1991?

TABLE OF CONTENTS

DEA CESMMETE CO EEOES CAR 2. cee cctsestesiceapes 2

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

oe eee eS ee Pe re ey eee 8

B. FIPs Will Support, Rather Than Interfere with,

State Planning Efforts in the South Coast. ........ 9

C. FIPs Can Be an Efficient Supplement to SIPs. ..... 14

D. The Plain Language of Section 110(c) Obligates EPA

To Complete the South Coast FIPs .............. 17

E. All of the Legislative History of Section 110(c) Is

Contrary to EPA’s Litigation Position. ........... 22

F. EPA’s Arguments Also Ignore or Misapply

Established Rules of Statutory Construction ....... 23

G. EPA’s Suggested Expansion of Chevron Is -

Unwise, Unsupported and Should Be Rejected ..... 26

H. The Section 193 Savings Clause Provides an

Alternative Ground for Affirming the Decision ..... 28

I. There Is No Actual or Potential Conflict of Decisions

That Requires Correction by this Court, but a Grant

of Certiorari Would Create a Conflict of Decisions .. 29

CFE ARPUIEN «8.» 5-55 5-6.9'% ae ee 30

ee ee a ae la

rE tLe a uy acs a4 Wb eb ae eee Sa

TABLE OF AUTHORITIES

CASES

Arkansas v. Oklahoma, 112 S. Ct. 1046 (1992) .......... 26

Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) .... 8, 26,

27, 30

Crandon v. United States, 494 U.S. 152 (1989) .......... wl

Delaney v. Environmental Protection Agency, 898 F.2d

687 (9th Cir. 1990), cert. denied, 111 S. Ct. 556

a =

meue V FLIRA, 476 US. 19 (1986)... es 5

Environmental Council of Sacramento v. Environmental

Protection Agency, Civ. No. S-87-420 EJG (E.D.Cal.

Dec. 2, 1991), aff'd, No. 92-15293 (9th Cir. July 9,

1992) petition for cert. filed, November 6, 1992 .... 7, 26

General Motors Corp. v. United States, 496 U.S. 530

CCS ORd wae Ske hk 6 ean 54s ob 6a Vea ke eee 18

Gozlon-Peretz v. United States, 111 S. Ct. 840 (1991) ..... 10

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

round., Inc., 464 U.S. 49 (19867) ................ 20, 21

ili

Cases -- Continued:

Hoover v. Ronwin, 466 U.S. 558 (1984) ...........2205. 5

King v. St. Vincent’s Hosp., 112 S. Ct. 570 (1991) ........ 18

National R.R. Passenger Corp. v. Boston & Maine

Cam, TEE B GE Bore Gee os ea Se ieee ek ee ckes 27

Ramon-Sepulveda v. INS, 863 F.2d 1458 (9th Cir. 1988) ... 25

Rast v. Salven, 131 5S. Ce. TISP EIST) ni vnc ccc ceases 26

Sierra Club v. Secretary of the Army, 820 F.2d 513

igs & -: Pere UeereeeereLr re Tes Tee eee eee 25

RVG U Ge Oe Wk ROP ENOEED 6 i 6 sos ows deen a's aes 8

srae u. Per, S28 US. GR ABP E) nc cc civ anwvcassss 13

Trichilo v. Secretary of Health & Human Serv., 823

Pe ee CE SEED. 5 6 ERASE 6G Ne eK ee RARER OKO 25

Union Elec. Co. v. EPA, 427 U.S. 246 (1976) ........... 13

STATUTES AND REGULATIONS

Clean Air Act, 42 U.S.C. § 7401 et seq:

§ 110(c), 42 U.S.C. § 7410(c) (Supp. 11 1990) .. passim.

§ 110(c)(1), 42 U.S.C. § 7410(c)(1) (Supp. II 1990) ... 4

§ 110(c)(1)(A), 42 U.S.C. § 7410(c)(1)(A)

ee ee es Se 22

iv

Statutes and regulations -- Continued:

§ 110(c)(1)(B), 42 U.S.C. § 7410(c)(1)(B)

CS 8 Perey rere err eee 4, 17, 3

§ 110(h)(1), 42 U.S.C. § 7410(h)(1) (Supp. I1 1990) . 19

§ 110(k)(1)(A), 42 U.S.C. § 7410(k)(1)(A)

co 8G. reer ee rer reer Sree ree 19

§ 182(e)(5), 42 U.S.C. § 7511(e)(5) (Supp. 11 1990) .. 11

§ 187(a)(2)(B), 42 U.S.C. § 7512(a)(2)(B)

eo 8 eer ere reer ee rer 19

§ 193, 42 U.S.C. § 7515 (Supp. II 1990) ....... 3, 6, 21

28, 29, 30

§ 302(y), 42 U.S.C. § 7602(y) (Supp. II 1990) . 12, 13, 16

Clean Air Act Amendments of 1970, Pub. L. No. 91-604

Pe 6 i 6 4 60 50 44 eR EE eee 24

kk SEER TTR CC eee 25

5 = PPT Te VTEC ETT eT Tree ere 24

A CPR. § SEASOMIF CITE) kc cc awe eesereneawes 2

MISCELLANEOUS

135 Cong. Rec. $11,141 (daily ed. Sept. 14, 1989) ........ 4

136 Cong. Rec. (1990)

p. Rizs7i (Gaity eG. May 25, 190)... 2 cc ccasaces 4

p. M2778 (daily ed. May 25, 1990) .... 0. ccc senens 4

p. H2886 (daily ed. May 23, 1990) ................ 4

p. S2162 (daily ed. March 6, 1990) .............. 13

p. S2844 (daily ed. March 21, 1990) .............. 18

S. SIG Bro CGney OG. CE. Zi, FROG) ok ck i cawan ta 7

Miscellaneous -- Continued:

Bp. 316,970 (dally od. Oct. 27, 1990) 20. cece ecccsas 7

Ay | eee ere eee ee pe

55 Fed. Reg. (1990)

0 Bre eee ee ere yee 3

0 Pere ee Tr eee eee ee ee re 3, 6

Pre ee reer ere err er re eee 6, 12

RAC ree errr re ery ee ret ree ee 12

OS reer re rrr rr roc ery ey res 2 13

SPR e eee Terre Ler ee ee 12

EE cee seein hae daeeeNG seek es ee Oe 6

at ia cee ON Cae Onan e ee Ck eas 11

ENAPET TEST ST CST See ee eee eee 6

7. . cack bie seh ee en cena bee eae ee kad 6

SA ee eee eee er er ee 6

De CUP CEIPER cae iece ness Weeweeeseses 5, 26

eo ee re rere 3

H.R. Rep. No. 490, 101st Cong., 2nd Sess. (1990) .... 12,24

H.R. No. 3030, 101st Cong., 2nd Sess. (1990) ........... 4

S. No. 1630, 101st Cong., 1st Sess. (1989) .............. 3

Craig & Hopper, 1001 Pitfalls in English Grammar,

3rd ed. Barrons, New York, 1986 ............... 19

Hodges & Whitten, Harbrace College Handbook, 9th ed.,

Harcourt Brace Jovanovich, 1982 ............... 19

Miscellaneous -- Continued:

N.J. Singer, Sutherland on Statutory Construction,

Ag 8 rere ree ee ee 10, 21, 24

25

W.D. Slawson, The Right to Protection from Air Pollution,

Fee Oe et. | eerererereere sr eee 15

SCAQMD, Draft Final Socio-Economic Report for 1991 Air

Quality Management Plan, (1991) ..............2.. 15

Vii

1h THE SUPREME COURT OF THE HRITER STATES

OCTOBER TERM, 1992

No. 92-798

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al., PETITIONERS

V.

COALITION FOR CLEAN AIR, INC., et al.,

RESPONDENTS

On Petition For A Writ Of Certiorari

To the United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

COALITION FOR CLEAN AIR AND SIERRA CLUB

The Coalition for Clean Air and Sierra Club (jointly, the

"Coalition")’ oppose the Environmental Protection Agency’s

("EPA") Petition for Writ of Certiorari ("Petition") and urge that

the Petition be denied. The Ninth Circuit Court of Appeals

correctly held that EPA is obligated to complete Federal

Implementation Plans ("FIPs") for California’s South Coast Air

Basin, a holding applicable to a very limited set of specific

situations that will not recur.

‘Respondents Coalition for Clean Air and Sierra Club are not-for-

profit corporations that do not have publicly traded stock, or parent or

subsidiary corporations. Sup. Ct. R. 29.1.

2

STATEMENT OF THE CASE

For purposes of this brief, the Coalition incorporates the

statement of facts and historical background set forth by the

Court of Appeals. Petition at 2a-8a. The following statement

clarifies and emphasizes key points.

This case seeks enforcement of EPA’s mandatory duty to

complete FIPs for the South Coast Air Basin and revolves

around interpretation of the provision of the Clean Air Act

establishing that mandatory duty -- Section 110(c), as amended

in 1990, 42 U.S.C. § 7410(c) (Supp. II 1990). Section 110(c)

presently provides: "The Administrator shall promulgate a

Federal implementation plan at any time within 2 years after the

Administrator . . . disapproves a State implementation plan

submission in whole or in part... ." 42 U.S.C. § 7410(c)(1)(B)

(Supp. II 1990) (emphasis added).

EPA’s duty to promulgate the South Coast FIPs was

triggered by the agency’s January 22, 1988, promulgation of a

final rule disapproving carbon monoxide ("CO") and ozone SIP

submissions originally prepared by the South Coast Air Quality

Management District ("SCAQMD") in 1982. 40 C.F.R. §

52.237(a)(1) (1991); 53 Fed. Reg. 1780-81 (1988). In the

preamble to this final rule, EPA described its action:

This notice announces EPA’s final disapproval of the

California State Implementation Plan (SIP) for ozone and

carbon monoxide (CO) in the South Coast Air Basin

(SCAB). ... EPA’s disapproval of the South Coast SIP is

effective February 22, 1988.

53 Fed. Reg. at 1780 (emphasis added). EPA’s disapproval

3

regulation currently remains in effect.’

By disapproving the South Coast SIP in 1988, EPA

continued what should have been no more than a six month gap

in federally enforceable implementation plans for the South

Coast Air Basin, a gap that presently exists only in three areas of

California, including the South Coast.*> EPA acknowledged its

duty by entering into a settlement agreement committing the

agency to complete the FIPs by February 28, 1991. Proposed

FIPs were published in the Federal Register on September 5,

1990, 55 Fed. Reg. 36,458 (1990).

EPA, in the meantime, lobbied Congress to eliminate its

FIP obligations, enjoying early success in the Senate. E.g., S.

*The savings clause in Section 193 of the 1990 Amendments

expressly saves the disapproval action since it is contained in a

regulation. 42 U.S.C. § 7515 (Supp. II 1990). The statement to the

contrary in the dissent below, that "[i]t would . . . make nonsense of the

new law to hold that the old disapproval must continue in effect despite

the relaxation of the standards effected by the 1990 changes... ." is

incorrect. Petition at 3la. Congress provided for the continuing effect

of adopted EPA regulations approving or disapproving SIPs.

*Most other areas of the country have EPA-approved plans that, at

least on paper, contain enough control measures to provide for

attainment of National Ambient Air Quality Standards. In those areas,

a federally-approved SIP remains in effect until plan revisions required

by the 1990 Amendments are approved by EPA. In California, in

addition to the South Coast, neither a complete attainment SIP nor a

FIP is in effect in the Sacramento and Ventura areas. To

Respondents’ knowledge, there are only two other areas of the country

where SIPs were disapproved and not adequately revised by the state

in question before the 1990 Amendments. In both of these areas

(Maricopa and Pima Counties, Arizona and Chicago, Illinois), EPA

subsequently has promuigated a FIP. 57 Fed. Reg. 8268 (1992); 55

Fed. Reg. 26,814 (1990).

4

1630, 101st Cong., 1st Sess. § 105 (1989); 135 Cong. Rec. $11,141

(daily ed. Sept. 14, 1989). However, Senate language that would

have eliminated EPA’s mandatory duty to promulgate FIPs was

removed by a May, 1990 House version of the bill containing the

language of Section 110(c) ultimately adopted by Congress. H.R.

3030, 101st Cong., 2d Sess. § 179, 136 Cong. Rec. H2778 (daily

ed. May 23, 1990).

In response to the House language that was enacted in the

1990 Amendments, the Administrator of the EPA, William

Reilly, wrote to House of Representatives Speaker Thomas Foley

and objected:

The House has [deleted] language that relieved EPA of its

current obligations to complete federal implementation

plans (FIP’s). If current FIP obligations are not relieved,

EPA must impose across-the-board, draconian measures

devastating the country’s largest industrial area. In light of

the new regime for state plan submissions, it makes no

sense for EPA to impose FIPs before the states have had

a chance to meet their new obligations. For these reasons,

the Administration strongly objects to the Committee’s

approach.*

136 Cong. Rec. H2771, H2886-88 (daily ed. May 23, 1990)

“The final version of the bill enacted by Congress added an

additional clause to Section 110(c) allowing EPA to avoid FIP

promulgation if it first approves a state plan. 42 U.S.C. § 7410(c)(1)

(Supp. II 1990). Apart from this change, the language of H.R. 3030 on

May 23, 1990, which the EPA letter addressed, was identical to the

final enacted version. See 136 Cong. Rec. H2778 (daily ed. May 23,

1990).

5

(emphasis added). EPA recognizes that, "[t]o be sure, the

language of Section 110(c) referred to in the Administrator’s

letter was unchanged in the bill as finally enacted... ." Petition

at 20. Thus, EPA’s contemporaneous interpretation and

representations to Congress were that Section 110(c) as adopted

obligated EPA to complete the South Coast FIPs.°

The 1990 Amendments also contained a broadly worded

savings clause, which provides that:

No control requirement in effect, or required to be adopted

‘EPA's letter to the House continued as follows: "In addition to

current FIP obligations, the House Committee bill requires EPA to

promulgate comprehensive FIPs in the future... ." Jd. (emphasis

added). Thus, EPA Administrator Reilly explicitly distinguished

previcusly triggered FIPs from FIPs that would be triggered by future

disapprovals. Through his letter, EPA interpreted the language

ultimately adopted by Congress to trigger FIPs by both past and future

SIP disapprovals.

°EPA claimed for the first time in its rehearing petition below that

its true "contemporaneous" interpretation of Section 110(c) is a Federal

Register notice published January 9, 1991, which asserted in the context

of Delaney v. Environmental Protection Agency, 898 F.2d 687 (9th Cir.

1990), cert. denied, 111 S. Ct. 556 (1990), motion to recall mandate

denied, March 20, 1991, that EPA was no longer obligated to complete

FIPs for Arizona. 56 Fed. Reg. 826 (1991). Generally, this Court

should decline review on issues not raised in a timely manner below.

See EEOC v. FLRA, 476 U.S. 19, 24 (1986) ("Our normal practice . .

. is to refrain from addressing issues not raised in the Court of

Appeals."). The rule applies with full force where, as here, the issue

was not raised until a petition for rehearing in the Court of Appeals.

Hoover v. Ronwin, 466 U.S. 558, 574 n.25 (1984). EPA previously

relied upon this Federal Register notice in its unsuccessful motion to

recall mandate in Delaney that relied or the same arguments presented

in the Petition herein. The panel in that case correctly declined to give

weight to such litigation posturing.

6

by an order, settlement agreement, or plan . . . may be

modified after such enactment in any manner unless the

modification insures equivalent or greater emission

reductions of such air pollutant.

42 U.S.C. § 7515 (Supp. II 1990). EPA’s proposed FIP, which

was required to be adopted by the settlement agreement in this

case, included numerous "control requirements.”’

EPA’s assertion in the Petition that "the legislative history

of the Section 193 savings clause indicated that Congress did not

intend EPA to finalize FIPs for the Los Angeles area" relies on

misleading partial quotations of Senators Baucus and Chafee and

misapplies those quotes in its interpretation of Section 110(c).

Petition at 8 (emphasis added), 20. EPA omits the key

statements by those Senators that: "EPA has the obligation to

adopt control measures for sources which it exclusively controls

’The proposed FIP amply confirms that the settlement obligated

EPA to adopt control requirements as part of the FIP. See 55 Fed.

Reg. 36,458 (1990). Throughout the proposed FIP, EPA

interchangeably refers to its provisions as "control measures," “control

requirements,” or simply "requirements." For example, EPA states:

"Estimates of control requirements for the South Coast Federal

Implementation Plan range from $2 to $6 billion . . .," 55 Fed. Reg. at

36,460; "The ‘backstops’ would be rescinded or their requirements

lessened if State and local efforts suffice,” id. at 36,500; "EPA is also

proposing to promulgate a measure of one no drive day per week . . .

. EPA would only implement this requirement as a backstop . . . .” id.

at 36,506; "Federally enforceable means all . . > requirements within any

applicable implementation plan,” id. at 36,545 (emphasis added). The

applicability section of each of the FIP backstop measures also

describes those measures as "requirements." e.g., 55 Fed. Reg. at

36,552. The fact that Congress was aware of these descriptions in the

proposed FIP when it adopted the 1990 Amendments further confirms

that the savings clause is intended to apply to control requirements of

the sort set forth in EPA’s proposed rulemaking.

7

when those controls are necessary to help attain national

standards or meet other requirements of the Act. But, beyond

that, EPA should complete ongoing FIP processes only for the

purposes of ensuring that the standards are met by the statutory

deadlines." 136 Cong. Rec. $16,895, $16,970 (daily ed. Oct. 27,

1990) (emphasis added).* The portions of the Baucus and

Chafee statements on which EPA so heavily relies simply state

that the savings clause does not require EPA to complete the

FIPs in the form proposed in September, 1990, and do not

support EPA’s assertion that the FIPs need not be completed at

all. See Petition at 17a-18a, Appendix 2 hereto at 6a.

EPA has now completed two of the five disputed FIPs that

were in preparation during debates on 1990 Amendments. See

n.3, supra. Only the FIPS for the three California areas remain

to be adopted.

Given the plain language of Section 110(c) compelling FIP

promulgation where SIPs are disapproved, and EPA’s

contemporaneous representations to Congress in Administrator

Reilly's letter that EPA would be required to complete the South

Coast FIPs if the House version of Section 110(c) were passed,

two panels of the Ninth Circuit and a district court’? have

concluded that EPA remains obligated to complete these and

‘EPA cites no legislative history directly supporting its position that

the South Coast FIPs need not be completed at ail, and the Coalition

has found no legislative history to that effect.

*In addition to this case, EPA has unsuccessfully presented these

same arguments in Delaney v. EPA, supra at n.6, and Environmental

Council of Sacramento v. EPA, Civ. No. S-87-420 EJG (E.D.Cal. Dec.

2, 1991), affd, No. 92-15293 (9th Cir. July 9, 1992), petition for cert.

filed, November 6, 1992. The Environmental Council decision is

published in the companion petition for writ of certiorari filed by the

United States on November 6, 1992.

8

similar FIPs. Except for the district court opinion in this case,

no court has concluded to the contrary. These holdings are

correct and should not be disturbed.

REASONS FOR DENYING THE WRIT

A. Introduction.

EPA concedes that the legal issues presented by the

Petition are limited to this case and two other cases in the Ninth

Circuit, and that those issues will not recur. Petition at 26. In

seeking certiorari, EPA must therefore demonstrate not only that

the decision below is in error, but also that an important

question is presented. Neither is the case.

The legal arguments presented in EPA’s Petition are flawed

by an unsupported and grammatically mistaken analysis of

Section 110(c), misstatement and misapplication of the legislative

history, and an improper reading of Chevron U.S.A., Inc. v.

NRDC, 467 U.S. 837 (1984). Further, the Petition repeatedly

| alleges, without support, many of the same policy objections to

FIPs that failed to persuade Congress. EPA’s efforts are

misplaced, since it is not the judiciary’s role to decline

enforcement of Congressional directives based upon its own view

of proper policy. TVA v. Hill, 437 U.S. 153, 195 (1977) ("[I]n our

constitutional system the commitment to the separation of

powers is too fundamental for us to pre-empt congressional

action by judicially decreeing what accords with ‘common sense

....’ Our Constitution vests such responsibilities in the political

branches.") EPA’s baseless policy arguments are all aimed

toward the improper end of convincing this Court to produce a

result that EPA sought from Congress and that Congress refused

to grant.

rence

9

Moreover, even if such policy arguments could properly be

taken into account by this Court, those offered by EPA are

neither compelling nor even properly supported. EPA’s policy

claims boil down to two basic assertions: first, that FIPs

inappropriately intrude on state planning efforts, and second, that

FIPs are burdensome and inefficient. Neither assertion is

correct, nor is either relevant to this case.

B. FIPs Will Support, Rather Than Interfere with, State

Planning Efforts in the South Coast.

EPA’s objection that the FIPs will intrude on the

SCAQMD’s planning efforts in the South Coast (Petition at 13)

is flatly contradicted by that agency’s intervention in support of

the Coalition in this case. Indeed, the SCAQMD, the agency

responsible for state air quality planning for the South Coast, has

concluded that, absent a FIP, attainment of the National

Ambient Air Quality Standards ("NAAQS") will remain out of

reach. See Petition at 40a.

Further, the intrusion argument begs the question of

whether Congress intended Section 110(c) to trigger a FIP

obligation in the instant circumstance, since by definition all FIPs

involve federal-level planning. The FIP requirement in Section

110(c) is a safety net that ensures, where a state fails to generate

an adequate implementation plan, one will be prepared and

adopted by EPA. In that way, the ultimate goal of the Act to

provide healthful air for all citizens is preserved, regulatory gaps

are filled, and no region is rewarded for avoiding its statutory

obligations.

Perhaps recognizing that its general argument regarding

State primacy proves too much, EPA falls back on the defense

that the South Coast FIPs inappropriately intrude on local

efforts at the present time, when state plan revisions are being

10

developed by the states under timetables established in the 1990

Amendments. Petition at 13. However, EPA fails to explain

how this purported intrusion is so extreme that the plain

language of Section 110(c) should not be enforced.

In responding to this argument, the majority opinion

accurately recognizes that the state can still submit, and EPA

consider and approve, appropriate implementation plan revisions

that take advantage of the new flexibility in the 1990

Amendments. Petitic> at 14a-16a. Indeed, Section 110(c)

establishes this as the «- lusive procedure for avoiding FIP

promulgation where EPA disapproves a state plan.

Further, as the majority notes, FIP promulgation at this

juncture will create a situation no different from that where a

FIP has already been promulgated (as in Chicago and Arizona).

Petition at 14a. EPA recognizes that if the South Coast FIPs

had been promulgated before the 1990 Amendments, the SIP

revisions required by the Amendments would currently be under

development with that FIP in place. See Petition at 17. EPA has

not explained how that circumstance would present the state with

‘It is by now well established that a court is not permitted to

substitute an interpretation which differs from the plain statutory

language simply because it considers another interpretation to make

more sense. Gozlon-Peretz v. United States, 111 S. Ct. 840, 849 (1991);

N.J. Singer, Sutherland on Statutory Construction, § 46.01 (Sth ed. 1992)

(“Unless the defendants can demonstrate that the natural and

customary import of the statute’s language is either repugnant to the

general purview of the act or for some other compelling reason should

be disregarded, the court must give effect to the statute’s plain

meaning.”).

11

any particular difficulties or create "anomalies" in the statutory

scheme.”

Contrary to its objections to this Court that South Coast

FIPs would disrupt the state’s role in clean air attainment, the

FIPs that EPA actually proposed in 1990 were consciously

harmonized with state and local planning. EPA’s proposed FIP

states:

EPA strongly supports State and local initiatives ....

Wherever legally permissible, EPA’s own proposal relies

on, builds upon, and reinforces these initiatives. In this

“EPA makes much of the fact that the Amendments extend the

deadlines for attainment of NAAQS, but the deadline extension was

such an obvious feature of the 1990 Amendments that it provides little

insight concerning Congress’ intention regarding specific provisions

elsewhere in the amended Act. Indeed, the new attainment deadlines

actually support increased harmonization of state and federal planning,

not the suspension of FIPs. Before extension of the expired 1987

deadlines, EPA arguably was obligated to adopt control measures that

would provide for attainment as scon as possible. 55 Fed. Reg. 36,504

(1990). With new deadlines, the FIPs need only assist in meeting

attainment for CO by 2000 and ozone by 2010. Thus, EPA has more

flexibility to dovetail with local planning efforts. Further, Section 182

(e)(5) in the 1990 Amendments, which allows EPA to approve South

Coast SIP provisions "which anticipate development of new control

techniques" gives additional leeway to coordinate the two processes.

42 U.S.C. § 7511a(e)(5) (Supp. II 1990).

EPA also mischaracterizes its SIP disapproval rulemaking as

having been based solely on failure to demonstrate attainment by 1987.

Petition at 11 n.6, 16 n.9. EPA’s disapproval instead notes that the SIP

did not provide for attainment "by any other fixed date... ."_ 53 Fed.

Reg. 1780 (1988). The lack of sufficient measures to attain NAAQS

by any date, including the new statutory deadlines, is the "gap" that

EPA now must fill.

12

with and duplication of local efforts, and encourage speedy

implementation of the measures State and local authorities

wish to adopt. ... EPA has attempted to design its FIP so

as to lend maximum support to the continued development

of the State plan, and to allow it eventually to supplant the

federal plan in the manner intended by the framers of the

Clean Air Act.

55 Fed. Reg. 36,460-61 (1990). Under the new definition of FIPs

added by the 1990 Amendments, the FIP can be limited to a

supportive role:

The term "Federal implementation plan" means a plan (or

portion thereof) promulgated by the Administrator to fill

all or a portion of a gap or otherwise correct all or a

portion of an inadequacy in a State implementation plan,

and which includes enforceable emissions limitations or

other control measures, means or techniques (including

economic incentives, such as marketable permits or

auctions of emissions allowances), and provides for

attainment of the relevant national ambient air quality

standard.

way, we hope to minimize federal intrusion, avoid conflict

42 U.S.C. § 7602(y) (Supp. II 1990). EPA proposed in

September 1990 to approve numerous state measures in tandem

with its proposed FIP (55 Fed. Reg. 36,466, 36,470), and EPA

appears free to finalize its approval of those state measures and

This definition represents Congress’ only response to EPA’s policy

objections to FIPs, as set out in Administrator Reilly’s letter: "[T]he

legislation, as noted later, in defining the term ‘Federal Implementation

Plan’ should remove many of the uncertainties and concerns often

expressed by EPA in applying this process." H.R. Rep. No. 490, 101st

Cong., 2d Sess., pt. 1, at 229 (1990).

—

13

related agency commitments now. Thus, the FIP will not need

to rely solely on measures within federal control. Petition at 12,

23-24.

EPA’s policy arguments about FIP interference with state

and local planning efforts are also undermined by the fact that

the FIP provision survived the 1990 Amendments in large part

due to lobbying by state and local air pollution control

agencies.'* This is not surprising given that FIPs augment state

efforts with federal measures."

Since EPA proclaims great sensitivity to state and local

concerns, and has been given new flexibility in crafting FIPs

through the added FIP definition, it can be expected to plan in

a cooperative and minimally disruptive manner in concert with

state and local agencies. 42 U.S.C. § 7602(y) (Supp. II 1990).

In any event, policy concerns with state primacy cannot

trump "the heart of the 1970 Amendments, . . . that the plan

provide for attainment of the national primary ambient air

quality standards in the particular State ‘as expeditiously as

practicable .... Train v. NRDC, 421 U.S. 60, 66-67 (1974);

See, e.g., "Recommendations of the State and Territorial Air

Pollution Program Administrators and the Association of Local Air

Pollution Control Officials on the Administration-Bipartisan Senate

Clean Air Act Agreement," 136 Cong. Rec. $2162-65 (daily ed. March

6, 1990).

'*In extreme cases like the South Coast, these additional measures

can make the difference between an approvable implementation plan

capable of attaining federal standards by the statutory deadlines and

one that cannot be approved because local measures alone cannot

provide sufficient controls. EPA’s September 1990 rulemaking

containing the proposed FIPs was recognized to have precisely this

effect. 55 Fed. Reg. 36,468 (1990).

14

Union Elec. Co. v. EPA, 427 U.S. 246, 249 (1976).

Here, federal controls are necessary now for the

implementation plan ever to work and meet the NAAQS. It was

rational for Congress to continue EPA’s FIP duties in this

circumstance, as the plain language of Section 110(c) provides.

C. FIPs Can Be an Efficient Supplement to SIPs.

In painting FIPs as irrationally burdensome, EPA first

confuses the significant costs and benefits inherent in any

regulations sufficient to attain required air quality standards in

the Los Angeles area with far less momentous questions of which

agency or agencies are required by Congress to establish such

regulations and when they are required respectively to act.

The burdens of air quality regulation will not be imposed

on the Los Angeles region only if the FIPs are adopted; likewise,

those burdens will not be eliminated if the FIPs are delayed

pending state planning efforts, as EPA requests. Nearly all of

the policy arguments raised by EPA (ce., that significant efforts

will be required and that economic and social costs will be

incurred) are equally applicable to state and_ federal

implementation plans. Congress’ decision to undertake these

smog cleanup efforts is fundamental to the Clean Air Act,

including the 1990 Amendments, and EPA does not dispute that

a major effort will be required in the South Coast area,

regardless of the outcome in this case. Petition at 12 ("Any plan

to attack and solve the area’s ‘extreme’ ozone problem . . . [will

have pervasive impacts]"). The lesser questions of exactly when

15

and how EPA should participate in this effort simply do not have

the broad, highly charged impact attributed to them by EPA.”

EPA also claims, without basis, that FIPs are inherently

expensive and inefficient, and that federal planning will

necessarily be more costly and disruptive than state planning

alone. Petition at 22,23. EPA argues that if an implementation

plan is limited to measures over which it has authority,

inefficiency will result because some cost-effective measures are

not within EPA’s power to impose. Petition at 23. Ironically,

the state and local agencies have long argued the other side of

the coin -- that the incremental measures within their authority

are less cost-effective than certain measures available to EPA.

Neither side is entirely right or wrong. Since each level of

‘SEPA persistently emphasizes the costs of air pollution cleanup.

But costs and benefits exist on both sides of the equation. Specifically,

the social and economic impacts of enduring severe air pollution are

staggering. One commentator compiled estimatesof health and welfare

costs of air pollution in the South Coast Air Basin alone, concluding:

Social scientists have estimated that the air pollution in the

Basin costs about $8 billion a year in medical costs, lost

work time, and property damage. Another $8 billion a year

is lost in aesthetic damages and human discomfort. Also,

medical scientists have concluded that many premature

deaths result from air pollution.

W. D. Slawson, The Right to Protection from Air Pollution, 59B S. Cal.

L. Rev. 667, 673 (1986) (emphasis added). This grim accounting is

confirmed by parallel estimates accompanying the SCAQMD’s Draft

1991 Plan, which predicted that annual health benefits will be

approximately $9 billion when the NAAQS are attained. SCAQMD,

Draft Final Socio-Economic Report for 1991 Air Quality Management

Plan, ES-S (1991). A copy of this SCAQMD report is attached as

Exhibit B to Appellants’ Request For Judicial Notice filed with the

Ninth Circuit.

16

government has distinct areas of authority, each has available a

range of measures with differing cost-effectiveness. The most

cost-effective comprehensive set of regulations can only be

achieved if all potential measures (local, state and federal) are

available for inclusion in the equation.

EPA’s argument also assumes -- erroneously -- that the FIP

will need to include only federal control requirements, rather

than the combination of state and federal measures that is now

permitted. See p.12 & n.11, supra; 42 U.S.C. § 7602(y) (Supp. I

1990) (FIP definition quoted at page 12 supra). By combining

federal and state measures, the implementation plan can achieve

the greatest air quality benefit using the most efficient means

available at either level of government.

Finally, EPA retreats to creative, colorful depictions of an

imagined South Coast FIP, suggesting that it would precipitously

cut off fuel supplies to this automobile-dependent region or

curtail major industrial sectors. However, it is telling that gas

rationing and similarly extreme measures are absent from the

FIP actually proposed by EPA in September 1990, even before

the 1990 Amendments provided additional flexibility in the FIP

definition. EPA’s argument reflects compound speculation that

draconian measures will be sought by environmentalists or

others, that EPA will adopt such measures, that these will survive

judicial review, that the public will passively accept them, and

that Congress will not act. This Court need not address such

unfounded and unlikely forecasts. EPA’s FIP obligation has

existed for nearly twenty years, but no gas has been rationed nor

any industrial subsector shut down yet for clean air purposes."®

‘For its part, the Coalition has repeatedly objected to such

suggestions and vehemently opposes gas rationing or similarly dire

proposals that would undoubtedly produce a counterproductive public

opinion backlash.

17

At base, EPA’s complaints about the costs of achieving the

air quality standards in the Los Angeles region openly question

Congress’ wisdom in requiring that those standards be met.

Petition at 22. Yet there can be no doubt that the requirement

to meet NAAQS has been established and that Congress was

well aware of its cost when the Amendments were passed.

Appendix 1 at 2a. Congress has already balanced these

competing policies, and societal costs and benefits; this balance

Should be enforced, not disregarded as EPA urges. Even if

EPA’s dire projections were to come true, resort would be to

Congress, not to the agency or the courts, to change the law.

D. The Plain Language of Section 110(c) Obligates EPA

To Complete the South Coast FIPs.

EPA’s extended presentation of flawed factual and policy

arguments seems intended to divert this Court from the basic

fact that this case revolves around the interpretation and

application of a single subsection of the 1990 Amendments,

Section 110(c)(1)(B), which provides: "The Administrator shall

promulgate a Federal implementation plan at any time within 2

years after the Administrator -- .. . disapproves a State

implementation plan submission in whole or in part... ."_ 42

U.S.C. § 7410(c)(1)(B) (Supp. II 1990) (emphasis added).

In taking action on the South Coast SIP, EPA employed

the very term that serves to trigger Section 110(c)(1)(B), through

its "disapproval" of the South Coast SIP. See pages 2 to 3, supra.

Thus, the language applied by EPA when it took action on the

deficient South Coast plan (of which Congress was aware) is

18

identical to the term Congress chose in drafting the statutory

trigger for EPA’s continued FIP obligation.”’

~PA’s principal argument in response is that the use of the

prese . ense "disapproves" in Section 110(c) requires only future

applicauca of the FIP requirement, ie., after the date of the

1990 Amendments. However, EPA fails to explain the flat

contradiction between this argument and the agency’s

contemporaneous representations to Congress in Administrator

Reilly’s letter. Also missing is any explanation for the lack of an

express temporal limitation in Section 110(c), particularly in light

of the fact that Congress expressly included transitional

provisions elsewhere in the statute such as the one that EPA

would imply in Section 110(c).”

"During debateson the Amendments, EPA provided Congress with

extensive background information, and specifically informed Congress

of its January 1988 disapproval of the SIP submission for the South

Coast: "Pursuant to [Abramowitz, 832 F.2d at 1079], EPA took final

action to disapprove [the South Coast ozone and carbon monoxide]

SIPs and to lay the groundwork for imposing the construction ban

under section 110(a)(2)(1), 53 FR 1760 (Jan. 22, 1988)." 136 Cong.

Rec. $2844 (daily ed. March 21, 1990). There can be no argument that

EPA’s FIP obligation, triggered by its 1988 SIP disapproval, was

continued by Congress inadvertently. It is also illuminating that EPA’s

description to Congress of its South Coast disapproval regulation was

stated in the infinitive "to disapprove" rather than the past tense form

that EPA now insists was necessary for its mandatory FIP duty to

remain enforceable.

'*It is well established that where Congress has included limiting

language in one portion of a statute, the exclusion of such language

elsewhere is an indication that no limitation was intended. See General

Motors Corp. v. United States, 496 U.S. 530 (1990) ("Since the statutory

language does not expressly impose a 4-month deadline and Congress

expressly included other deadlines in the statute, it seems likely that

Congress acted intentionally in omitting the 4-month deadline in

19

EPA also does not rebut the Ninth Circuit's statement of

proper grammar and usage that "the present tense is commonly

used to refer to past, present, and future all at the same time."

Petition at 11a."° Instead, EPA merely argues that the choice

of tense in statutory language is important, which is undisputed,

without explaining why Congress’ use of the simple present tense

in Section 110(c)(1)(B) should not be taken to refer to past,

present and future disapprovals alike, in accordance with

accepted usage. Petition at 14. EPA’s failure in this regard is

footnote continued:

$110(a)(3)(A).”); King v. St. Vincent’s Hosp., 112 S. Ct. 570, 586 (1991).

Congress knew how to draft limiting language when it intended

to restart a date from enactment of the Amendments, and it did so

repeatedly. See, e.g., 42 U.S.C. § 7410(h)(1) (Supp. IT 1990) ("Not later

than 5 years after November 15, 1990, and every 3 years thereafter . .

--"); 42 U.S.C. § 7410(k)(1)(A) (Supp. II 1990) (“Within 9 months after

November 15, 1990... ."). Congress also knew how to enact "special

rules" regarding such dates when it deemed it necessary. Thus, Section

187(a)(2)(B) provides: "Within 2 years after November 15, 1990, in the

case of Denver, the State shall submit a revision that includes the

transportation control measures as required in section 751 la(d)(1)(A)

of this title... ." 42 USC. § 7512a(a)(2)(B) (Supp. II 1990).

Congress provided for specific circumstances when it wanted to but

chose not to for EPA’s FIP obligation in the South Coast. The phrase

"disapproves a [SIP]" in Section 110(c)(1)(B) is unqualified.

‘The rule is not reasonably subject to dispute: See, e.g., Craig &

Hopper, 1001 Pitfalls in English Grammar, 34 Ed, Barrons, New York,

1986, at 34 ("RULE: Use the present tense to describe something that

is true regardless of time."); Hodges & Whitten, Harbrace C. ollege

Handbook, 9th Ed., Harcourt Brace Jovanovich, 1982, at 87 ("The

present tense, for example, is by no means limited to the present

time.").

20

critical, since it leaves the Petition unsupported at its central

point.”

As a fallback, EPA attempts to find support in Gwaltney of

Smithfield, Lid. v. Chesapeake Bay Found., Inc., 484 U.S. 49

(1987), which limits citizens’ suits under the Clean Water Act to

enforcement against polluters "in violation" of the Act. The

Ninth Circuit’s opinion correctly disposed of this argument.

Petition at 10a-11a.”"

While not relied upon by EPA in its Petition, the District Court

committed a different, but equally critical, grammatical error when it

inferred an ambiguity in the referent of the clause "disapproves a [SIP]"

by assuming that Congress intended a single, exclusive referent: "The

question, then, is which rejected SIP is the revised §110 now referring

to -- the one which was rejected in 1988 or the new one which must be

submitted under the new criteria and on the new time schedule [for

SIP submissions under the 1990 Amendments]?" Petition at 38a

(emphasis added). Yet, the phrase used by Congress is "a [SIP]".

Thus, in defining which SIP could trigger EPA’s FIP obligation,

Congress used the indefinite article "a" rather than the definite article

("the SIP"), and Congress did not limit the referent by adjectives or

attributives, such as "a new SIP" or "the 1994 SIP." As a result, there

is no basis for the District Court’s conclusion that Congress was

referring to one and only one SIP, or to any particular SIP. The very

fact that the District Court thought the provision ambiguous concerning

which SIP, past or future, is referred to in Section 110(c)(1)(B)

underscores that the statutory use of the simple present tense |

"disapproves" encompasses both.

"In Gwaltney, this Court held that a good faith allegation of a

continuing rather than wholly past violation is required to maintain a

Clean Water Act citizen enforcement suit. As the opinion below

recognized, Gwaltney addresses different statutory language in a

different context and therefore sheds no light on the proper

interpretation of Section 110(c)(1)(B). In addition to the reasons

identified by the majority opinion, the holding in Gwaltney is

inapplicable here for several reasons. First, unlike Gwaltney, this is not

a

21

EPA’s final concern, that its FIP was due before enactment

of the 1990 Amendments, was accommodated by the Ninth

Circuit’s order, which directed the District Court "to establish an

expeditious schedule," (Petition at 3a) not one that was

unattainably retroactive,” or that "reduced the time for

footnote continued:

a civil penalty case, but instead seeks to enforce EPA’s mandatory

duties. Second, EPA’s violation (failure to promulgate a FIP) is

continuing. It is not the original disapproval that constitutes the

challenged violation but EPA’s failure to carry out its resultant FIP

obligation. Third, adopted regulations (such as SIP disapprovals)

fundamentally differ from the violations of pollution control

requirements addressed in Gwaliney. Acts of pollution, unlawful when

they occurred, can be terminated before a lawsuit has been filed.

Gwaliney, supra, 484 U.S. at 59-61. In contrast, once adopted, a

regulation has continuing effect until amended or repealed -- a result

underscored here by the Section 193 savings clause in the 1990

Amendments. Thus, the disapproval itself continues, i.e., EPA, by

virtue of its continuing SIP disapproval regulation, currently

“disapproves” of the 1982 SIP -- or, to parallel the language of

Gwaltney, is "in disapproval" of that SIP -- yet still fails to carry out its

consequent FIP duties.

“EPA suggests that continuing its obligation to complete the FIPs

for the South Coast Air Basin raises questions of "retroactivity."

Petition at 14-15. The flaw in this argument is that the statute required

FIPs both before and after the 1990 Amendments, and therefore it is

not retroactive. Sutherland, supra at n.10, § 41.01 (1985) ("[A] statute

is not rendered retroactive merely because the facts upon which its

subsequent action depends are drawn from a time antecedent to its

effective date.") EPA’s duty to promulgate the FIPs was adjudicated

in this very case before the 1990 Amendments. The only change in the

statute was to increase the time for FIP completion, but application of

a longer time period to act (two years after SIP disapproval rather than

the six months provided prior to the Amendments) cannot possibly

have surprised or prejudiced EPA. Id., § 42.02.

22

producing a FIP to zero." Petition at 14.”

In sum, EPA has presented no valid support for its

assertion that the use of the present tense "disapproves" limits

application of Section 110(c) to disapprovals occurring after the

1990 Amendments. The Ninth Circuit is correct that common

usage dictates the opposite conclusion.

E. All of the Legislative History of Section 110(c) Is

Contrary to EPA’s Litigation Position.

In ruling that EPA’s obligation to complete the South Coast

FIPs continued after the 1990 Amendments, the Ninth Circuit

simply came to the same conclusion as had EPA Administrator

Reilly regarding the plain meaning of the language adopted by

Congress: Mr. Reilly told Congress that the language would

compel EPA to complete the FIPs for the South Coast Air

Basin.

The Administrator’s letter is useful legislative history for

two important reasons. First, it is a direct admission by EPA of

what the "plain language” says. Second, it underscores Congress’

clear intent in adopting the current language of Section 110(c):

Having been told by EPA that such adoption would continue

EPA’s obligation to complete the ongoing South Coast FIP

*EPA’s second fallback, that a FIP could not have been triggered

under one of the provisions of Section 110(c)(1)(A) prior to passage of

the 1990 Amendments, is a red herring. The Coalition has never

argued that this trigger has occurred. Further, that one of three

distinct triggers in Section 110(c) is on its face prospective hardly

demonstrates Congressional intent to make the other, temporally

unqualified triggers prospective as well. The majority correctly

disposed of this issue, applying the triggers separately since they are

disjunctively referenced. Petition at 10a - 12a.

——————————EEeeEeE————

23

process, Congress plainly acted intending just that result.

Administrator Reilly’s interpretation of Section 110(c) as

preserving both existing and future FIP obligations is exactly the

opposite of EPA’s position in this litigation and severely

undercuts the credibility of the latter position, transparently

formulated to convince the judiciary to undo what Congress did.

Other supportive legislative history is presented in the

Opinion below, including the statements of Senators Chafee and

Baucus.” Petition at 16a-19a. No legislative history supports

EPA’s position.”

F. EPA’s Arguments Also Ignore or Misapply Established

Rules of Statutory Construction.

EPA's arguments depend upon the assertion that the 1990

Amendments eliminated all applicable pre-Amendment

requirements, replacing them with an entirely new Statutory

scheme. This is by no means the case; the 1990 Amendments

preserved nearly all of the key substantive provisions of the

former Act. The basic structure of the Act was unaffected, with

“Implicitly, EPA now argues that it was "crying wolf" to Congress,

exaggerating the impact of Section 110(c). Petition at 20. This

assertion is not only disingenuous but does not counter the fact that

Congress, being advised by EPA that the FIPs would be required,

approved of that result and left the proverbial wolf at EPA’s door.

*Contrary to EPA’s claim that the majority simply dismissed these

statements, it is clear that the majority evaluated them and concluded

that they do not support EPA’s interpretation. Petition at 17a.

**EPA’s repeated reliance on the legislative history of the 1977

Amendments (Petition at 3, 4, 24) is particularly off point, since that

legislative history sheds little if any light on the intended meaning of

specific provisions of the 1990 Amendments passed some 13 years later.

24

implementation plans being required to provide for NAAQS

attainment by statutory deadlines. That the 1990 Amendments

extended the deadlines does not affect this basic structure.

EPA wants to deny the obvious, that the 1990 Amendments

were simply a second "mid-course correction" to a program first

developed by Congress in 1970. By this artifice, EPA attempts

to avoid the basic rule of construction that applies: "Provisions

of the original act or section which are repeated in the body of

the amendment, either in the same or equivalent words, are

considered a continuation of the original law." Sutherland, supra

at n.10, § 22.33 (1985).”’

Repeatedly, EPA inaccurately describes the effect of the

Amendments on the former statute using such extreme terms as

“repealed,” "eliminated," "replaced with new provisions that do not

preserve any element of the State’s prior failures," "[having mooted] the

State’s original failure," etc. Petition at 8, 11 & n.6, 19. However,

Section 110(c) was amended, not repealed. Sutherland, supra at n.10,

§ 23.02. As described by Congress, the Amendments continued the

existing clean air program without radical change: "Fundamentally,

titie I is a continuation of what is already required in current law --

that all areas attain National Ambient Air Quality Standards

(NAAQS)." House Report, supra at n.12, 165. Even Judge Noonan’s

dissent recognized that "[t]he new statute is certainly comparable . . .

." and District Court Judge Hupp observed that "§ 110 was left virtually

and ambiguously untouched ... ."_ Petition at 29a, 41a. Prior to

amendment of Section 110(c)(1)(B), EPA’s FIP obligation was

triggered by a finding that the SIP was not "in accordance with the

requirements of this section.” 1970 Clean Air Amendments ("CAA"),

Pub. L. No. 91-604, §110(c)(2), 84 Stat. 1676, 1681-82 (1970)

(renumbered 1977, amended 1990). In 1990, Congress changed the

language to require FIP promulgation after EPA "disapproves a [SIP]".

42 U.S.C. § 7410(c)(1)(B) (Supp. II 1990). The language is equivalent

because EPA approval of a SIP was mandatory if Section 110

requirements were met; as a corollary, disapproval required a finding

that the SIP did not meet the requirements of the Act. CAA §

110(a)(2), 84 Stat. at 1680-81 (amended 1990).

25

The FIP provision of Section 110(c) was present in the

originai Clean Air Act and has been continued in substantially

the same form through the two major amendments in 1977 and

1990. Even EPA, in note 1 of its rehearing petition to the Ninth

Circuit, recognized that "The language of this particular directive

was not changed by the 1990 Amendments... .". Applying the

rule of construction cited above, Section 110(c) must be treated

as a continuation of the pre-Amendment law. EPA has never

addressed this rule of construction, presumably because the rule

cleanly disposes of EPA’s indirect and inferential arguments.”

Also, by arguing that changes elsewhere in the 1990

Amendments (specifically the attainment deadline extensions)

implicitly limit the unqualified FIP triggers in Section 110(c),

EPA’s Petition also runs afoul of the rule of construction

disfavoring implied repeal of statutes. Sutherland, supra at n.10,

§ 23.09 (1985). Similarly, EPA’s argument that the implementing

policy of the statute to promote state planning primacy overrides

(or renders ambiguous) the plain language of Section 110(c)

turns the applicable rule of construction on its head. Id., §

20.12. EPA’s failure to apply these established rules of

construction should not be condoned.

*The Ninth Circuit’s decision is consistent with other decisions

addressing minor amendments to statutes in the context of a statutory

timetable. See, e.g., Trichilo v. Secretary of Health & Human Serv., 823

F.2d 702, 706 (2d Cir. 1987) (rejecting the argument that the 1985

amendments to EAJA restarted the clock for calculating a cost of living

adjustment); Ramon-Sepulveda v. INS, 863 F.2d 1458, 1463-64 (9th Cir.

1988); Sierra Club v. Secretary of the Army, 820 F.2d 513, 522 (ist Cir.

1987).

26

G. EPA’s Suggested Expansion of Chevron Is Unwise,

Unsupported and Should Be Rejected.

Lacking direct arguments of substance, EPA retreats to the

Chevron doctrine, arguing that its view of the scope of its

mandatory FIP duties should be given deference. Yet EPA has

identified no true conflict between the result below and the

decisions in Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984),

and its progeny Arkansas v. Oklahoma, 112 S. Ct. 1046 (1992),

and Rust v. Sullivan, 111 S. Ct. 1759 (1991).% The majority

opinion below, and Environmental Council, supra at n.9, fully

complied with Chevron by applying the plain meaning rule and,

secondarily, by acknowledging Administrator Reilly’s letter as the

agency’s true contemporaneous construction of the statute.”

By applying Chevron at all, the majority opinion in fact

expanded the scope of the Chevron doctrine from the delegation

?>These cases hold that where Congress has left a gap for an agency

to fill, and the agency’s interpretation of the statute (embodied in

regulation) is a permissible one, the Court will then defer to that

interpretation. However, where Congress has mandated that EPA take

action, no gap is left for discretionary administrative interpretation.

Moreover, EPA has not embodied its interpretation of Section 110(c)

in any regulation. Notably, its contemporaneous interpretation of the

statutory language, set forth in Administrator Reilly’s letter discussed

above, conflicts with its litigation posturing here.

*It bears emphasis that the Arizona Federal Register notice

(discussed supra at n.6) that EPA claims deserves deference (Petition

at 19) was not even cited to the Ninth Circuit as EPA’s

contemporaneous construction of the statute until EPA’s petition for

| rehearing, thus explaining the majority’s failure to discuss it. Apart

from the fact that such late-presented arguments generally should be

disregarded, the timing of the argument confirms that EPA’s reliance

on the Arizona notice is simply a post hoc rationalization for litigation

purposes rather than a true official or formal interpretation.

a

27

context, in which it was developed, to a mandatory duty context,

in which it has never been applied.*! In Chevron, the Supreme

Court found that Congress had left a gap for EPA to fill through

rulemaking on the technical definition of "stationary source"

under the Clean Air Act, and that EPA’s regulations filling that

gap were within the permissible range of discretion intended by

Congress. Chevron held that where a statute included a broad

definition, the very breadth of the definition implied a delegation

to the agency to fill the gap in a manner consistent with the

goals and purposes of the statute. Here, however, we face a

broad mandatory duty that is triggered by all SIP disapprovals;

there is no implied delegation such as the one that served as the

basis for the Chevron decision. Where Congress establishes a

broad mandate, EPA lacks discretion to pick and choose among

the duties so mandated; it must comply with all mandates of

Section 110(c) without limitation.** Expanding Chevron to

create a rule implying agency discretion to avoid statutorily

prescribed mandatory duties would seriously risk misapplying

Congressional directives.

The dissent below also misapplied Chevron by doing just what

Chevron proscribes -- applying the Court’s view of proper policy or

sensible result to override the plain meaning of the statute.

**Similar to the limitations on Chevron suggested by Justice Scalia

in the dissent in Crandon v. United States, 494 U.S. 152, 177 (1989), the

interpretation and enforcement of EPA’s mandatory duties are judicial,

not administrative, functions. EPA’s views of the scope of its

mandatory duties are not entitled to deference under Chevron since

EPA is not charged by Congress with interpreting the scope of those

duties. The concerns expressed by Justices White, Blackmun and

Thomas about applying Chevron to the "post hoc rationalization of

government lawyers" are similarly applicable here. National R.R.

Passenger Corp. v. Boston & Maine Corp., 112 S. Ct. 1394, 1405 (1992)

(White, J., dissenting).

28

H. The Section 193 Savings Clause Provides an

Alternative Ground for Affirming the Decision.

Even if EPA were correct concerning the proper

interpretation of Section 110(c), the Section 193 savings clause,

42 U.S.C. § 7515 (Supp. II 1990), was designed to preserve the

benefits of settlement agreements such as the one in this case

and to prevent backsliding in ongoing efforts to improve air

quality. Because the majority below found that the language of

Section 110(c) continued EPA’s FIP obligations, it did not

address the effect of Section 193 in its opinion. Petition at 8a.

However, this savings clause provides an alternative (and more

than sufficient) basis for upholding the decision below.

The savings clause precludes modification of any "control

requirement . . . required to be adopted by . . . an order [or]

settlement agreement .. . unless the modification insures

equivalent or greater emission reductions ...." The settlement

agreement herein obligated EPA to adopt "control requirements"

as the central element of the South Coast FIP, as plainly

evidenced by the requirements EPA included in its proposed

FIP. See n.7, supra. Indeed, EPA bases its policy arguments

concerning Section 110(c) on a parade of horribles resulting from

the control requirements that it claims would be needed in the

FIP. At a minimum, Section 193 saves the control requirements

that were "required to be adopted by . . . [the] settlement

agreement” herein, in effect at the passage of the 1990

Amendments. The savings clause thus provides an alternative

basis for affirming the decision below.”

The savings clause issue occupied a significant portion of the

briefing to the Court of Appeals, and complete presentation of the

issue is of necessity beyond the scope of this opposition.

29

I. There Is No Actual or Potential Conflict of Decisions

That Requires Correction by this Court, but a Grant

of Certiorari Would Create a Conflict of Decisions.

EPA concedes that "the particular legal question presented

in this case is of limited scope and of a non-recurring nature."

Petition at 26. The narrow legal question presented here is

whether EPA disapprovals of SIPs prior to the 1990

Amendments were intended by Congress to trigger a federal

planning obligation under amended Section 110(c). Obviously,

all such disapprovals have already occurred. Therefore, the legal

effect of the decision has quite restricted application, as EPA

acknowledges. Only three areas of California have disapproved

SIPs: the South Coast and Sacramento and Ventura Counties,

both subjects of citizen suits parallel to this case.** These latter

two are the only other cases that could be affected by the

outcome here.” As a result, this case presents no broad

precedential questions that might warrant review by this Court.

On the other hand, since EPA’s request to be relieved of

its federal planning obligation for Arizona areas in Delaney was

denied by the Ninth Circuit, permitting EPA to avoid its duties

in the South Coast would create a direct intra-circuit conflict

with that decision. Since EPA sought and was denied certiorari

in that case shortly after the 1990 Amendments, the creation of

“Similarly, the Section 193 savings clause issues are temporally

limited. All of the California cases were the subject of parallel

settlement agreements when the 1990 Amendments were passed. No

new Cases can arise under the savings clause because it requires a

settlement agreement and/or order in effect at the time of the 7

Amendments. Petition at 47a.

EPA has cited no other decisions on this issue in any other circuit

or district court, and the Coalition knows of none. Nor are there other

pending or potential cases raising the question.

30

such a conflict could not be remedied.

Thus, while there is no conflict of decisions to be resolved

by the Supreme Court, a grant of certiorari herein would risk

creating such a conflict.

CONCLUSION

For the foregoing reasons, EPA’s petition for a writ of

certiorari should be denied.”

Respectfully submitted,

ALAN WALTNER*

Law Offices of Alan C. Waltner

1736 Franklin Street, 8th Floor

Oakland, CA 94612

(510) 465-4494

TRENT ORR

96 Manchester Street

San Francisco, CA 94110

(415) 206-0898

Counsel for Respondents

*Counsel of Record

December 9, 1992

*EPA’s suggestion that the matter is appropriate for summary

reversal is entirely inappropriate for a variety of reasons. In addition

to the correctness of the decision below, EPA’s proposed expansion of

the Chevron decision alone would warrant full briefing and argument.

Again, other than the necessarily brief discussion above, the Section

193 savings clause issue has not been briefed or argued to this Court.

More generally, interpretation of a complex Congressional enactment

such as the 1990 Amendments is not properly the subject of a summary

reversal.

la

APPENDIX 1

The letter from Administrator Reilly to House Speaker Foley,

printed at 136 Cong. Rec. H2771, H2886-88 (daily ed. May 23,

1990), reads in pertinent part as follows:

The White House

Washington, D.C.

May 22, 1990

Hon. Thomas S. Foley,

Speaker, U.S. House of Representatives

Washington, D.C.

Dear Mr. Speaker:

As the full House prepares to consider H.R. 3030, the

clean air bill which has been reported by the Committee on

Energy and Commerce, we would like to offer the

Administration’s views on both the bill as reported by the

Committee and several likely amendments.

The Administration’s goal is to secure passage of clean

air legislation which obtains the urgently needed environmental

benefits called for in the President’s original bill in the most

efficient and cost-effective manner possible. We are pleased that

the bill incorporates many of the features which were included

in the President's proposal for the purpose of achieving this goal.

We are particularly pleased that the bill contains the

following central features:

SO

2a

Provisions designed to bring the overwhelming majority

of America’s cities into attainment with standards for

ozone, carbon monoxide, and particulate matter within

10 years; and provisions suggested by the President to

ensure steady progress toward attainment by requiring

annual percentage reductions in ozone-forming

emissions.

We do, however, have several concerns with the

Committee bill and with several amendments that may be offered

on the House floor.

On January 19th, the President sent a letter to the

leadership of the Senate outlining five minimum tests of balance

and reasonableness that must be met in any Clean Air legislation

which he would sign. Specifically, the President believes that:

The environmental protections in the Administration’s

bill must be maintained and preserved over time;

The bill should not impose aggregate cost on the

economy which exceed those embodied in_ the

Administration’s bill by more than 10 percent;

Controls in the bill should achieve reductions in the most

cost effective way;

The system of acid rain emissions trading must be

preserved and allowed to work; and

The legislation must not include a national electricity tax

to pay for controls.

The estimated cost of the Committee bill is already at or

slightly above the cost threshold outlined in the President’s letter.

3a

Certain amendments could, if adopted, cause the bill to violate

this and several other of the President’s tests. These

amendments are discussed below. Several additional concerns

that the Administration has with the Committee bill as reported

are discussed in the attachment.

CONCLUSIONS

The Administration, the House, and the Senate have all

devoted a remarkable amount of time to consideration of clean

air legislation during the current Congress. We believe that the

Outlines of a consensus bill that affords significantly increased

environmental protection in a cost effective manner are clear.

We now have an Opportunity to break a decade-long

logjam on clean air. The Administration believes that the House

should seize this unique opportunity, and avoid the adoption of

any unnecessarily costly amendments which provide little

incremental environmental benefit.

We urge Members ef the House to Support a bill which

meets the President’s five twsts of balance and reasonableness so

that clean air legislation can be signed at the earliest Opportunity

this year.

Thank you very much for your consideration.

Sincerely,

William K. Reilly

Administrator, Environmental Protection Agency

John H. Sununu,

Chief of Staff

4a

ATTACHMENT-KEY ADMINISTRATION CONCERNS

WITH COMMITTEE BILL AS REPORTED

FIP’S - The House has deiegated language that relieved

EPA of its current obligations to complete federal

implementation plans (FIP’s). If current FIP obligations are not

relieved, EPA must impose across-the-board draconian measures

devastating the country’s largest industrial area. In light of the

new regime for state plan submissions, it makes no sense for

EPA to impose FIPs before the states have had a chance to meet

their new obligations. For these reasons, the Administration

strongly objects to the Committee’s approach.

In addition to current FIP obligations, the House

Committee bill requires EPA to promulgate comprehensive FIPs

in the future, regardless of how unworkable such federal

measures would be or how impracticable it would be for EPA to

implement the FIP. This requirement ignores the dismal history

of the current attainment-FIP requirement, including the public

uproar and virtual collapse of Title I of the Act that resulted

from previous FIPs. It would be counterproductive to signal in

this new law that states can avoid their new obligations by simply

delaying and waiting for EPA to impose the necessary controls.

As in the past, attainment FIPs would be an excuse for state

inaction and an albatross around EPA’s neck. I: would be more

responsible for the law to recognize the limitations EPA faces in

this area and either allow partial FIPs on a discretionary basis or,

as in the Senate bill, mandate only partial FIPs that would assure

progress toward attainment.

Sa

APPENDIX 2

The colloquy between Senators Wilson and Chafee, at 136 Cong.

Rec. $17,237 (daily ed. Oct. 26, 1990) reads as follows:

Mr. WILSON. I have another concern regarding the

"General Savings Clause" which was section 193 of title I of the

House bill, and the effect that it could have on California’s

flexibility to develop its own plan to meet the new requirements

of the act. EPA, pursuant to a court settlement, has proposed

a federal implementation plan, or FIP, for the Los Angeles area,

and has agreed to do similar plans for four other areas of

California. The proposed FIP for Los Angeles is a complete

plan which includes some questionable federally imposed control

measures, such as a 90-percent across the board reduction to all

sources regardless of technological or economical feasibility. I

am concerned, and I know officials at EPA are concerned, that

some might interpret the savings clause as a requirement that

EPA finalize its Federal plan and preempt ongoing State and

regional air quality planning which would otherwise be required

under this bill.

I want to make sure that this bill does not lock us into a

virtual Federal takeover of air quality planning in most of the

urban areas of California. A takeover that might occur before

State and local agencies even have the opportunity to implement

the provisions of this act. I am sure that the Senator will agree

with me that this was not the intent of the conference committee

agreement on this point?

Mr. CHAFEE. The savings provision was intended to

ensure that there is no backsliding on the implementation of

adopted and currently feasible measures that EPA has approved

as part of a State implementation plan in the past, or that EPA

has added to State plans on its own initiative or pursuant to a

6a

court order or settlement. The situation you describe goes

beyond that intent and would, I agree, create an unfair situation.

If EPA were to promulgate complete new plans based on

requirements of the old act, the areas subject to those Federal

plans would be deprived of the opportunity to utilize the

significantly revised and clearly more workable requirements of

the revised act. This would be unreasonable, and clearly not our

intent.

EPA has been provided significant discretion in applying

the savings provision as it relates to FIP’s in California. EPA

has the obligation, as I discussed earlier, to adopt control

measure for sources which it exclusively controls when these

controls are necessary to attain national standards and meet

other requirements of this act. Beyond that, EPA should

complete ongoing FIP processes only for the purposes I have

stated above.