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

Eapreme Court, U.S. |

FILED

JAN 15 1993

DPCP MO TE CLERK

-_

No. 92-798

ae: —_—

In the Supreme Court of the Cinited States

OCTOBER TERM, 1992

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL., PETITIONERS

Vv.

COALITION FOR CLEAN AIR. ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

RAYMOND B. LUDWISZEWSKI

Acting General Counsel

Environmental Protection Agency

Washington, D.C. 20460

TABLE OF AUTHORITIES

Cases:

Chevron U.S.A. Inc. v. Natural Resources Defense

Coermeees, Free, SET UG. BRT CEBBE) onc cncnccccvccecccncccsvceccsces

Japan Whaling Ass’n v. American Cetacean Soc’y, 478

Se MY MITTEE Snhdesicpinkannstbcsndsadibindaniinnnininaseseuietihunensnen

Pauley v. Bethenergy Mines, Inc., 111 S. Ct. 2524 (1991). -

Statutes:

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

§ 110(a)(2), 42 U.S.C. 7410(a)(2)(A) «0... eeeeeee

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

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

§ 110(k)(1), 42 U.S.C. 7410(k)(1) (Supp. IT 1990) .......

§ 110(k)(2), 42 U.S.C. 7410(k)(2) ............cccccceceeeeeeeeees

§ 182(c)(2), 42 U.S.C. 751la(c)(2) (Supp. II 1990) ......

§ 182(e), 42 U.S.C. 751la(e) (Supp. IT 1990) .............-

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

§ 193, 42 U.S.C. 7515 (Supp. II 1990) .................0ecceeee

§ 209(e)(1), 42 U.S.C. 7543(e)(1) (Supp. II 1990) ........

ns Se SI. TET stiedih anionuausiannecetbeexsiaunapsentaeensenesein«

§ 213(a)(3), 42 U.S.C. 7547(a)(3) (Supp. II 1990) ........

§ 213(a)(5), 42 U.S.C. 7547(a)(5) (Supp. II 1990) ........

$§ 231-234, 42 U.S.C. 7571-7574 ...........cscccccsssscsscsssensees

Se, Se MII. SINE ic dai eno danckacsbakaccinns innecaaNonebuonsucasces

§ 302(y), 42 U.S.C. 7602(y) (Supp. IT 1990) .......00

Miscellaneous:

136 Cong. Rec. $16,970 (daily ed. Oct. 27, 1990) .....00000...

55 Fed. Reg. (1990):

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Letter from James D. Boyd, Executive Officer, California

Air Resources Board to EPA Regional Administrator

Daniel McGovern (Nov. 30, 1990) ...........c..cceecceeeceeeeeeees

Letter from Norton Younglove, Chairman, SCAQMD

Board to EPA Regional Administrator Daniel McGov-

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In the Supreme Court of the Anited States

OCTOBER TERM, 1992

No. 92-798

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, ET AL., PETITIONERS

Vv.

COALITION FoR CLEAN AIR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

As demonstrated in the petition (Pet. 13-22), the court of

appeals effectively nullified Congress’s decision, expressed

in the 1990 Amendments to the Clean Air Act, to give

California the initial responsibility for developing the

governmental response to the severe problems of air

pollution in the Los Angeles area. Respondents fail to

provide any convincing rationale to justify that judicial

overruling of Congress’s specifically focused determina-

tion. See Point 2, infra. Instead, implicitly recognizing

the weakness of the court of appeals’ ruling on the merits,

respondents principally attempt to minimize the practical

consequences of the decision below. In fact, however (see

Point 1, infra), there is no assurance that respondents’

optimistic and ultimately speculative predictions will

prove correct—even if those predictions would otherwise

justify the court of appeals’ remarkable departure from the

statutory scheme.

1. Respondents seek to minimize the impact of an

immediate EPA federal implementation plan (FIP) for

(1)

2

ozone by downplaying the burdens that it could impose and

by overstating the current availability of approvable state

control measures to relieve EPA of its FIP burden. See

Coalition for Clean Air, et al. (CCA) Br. in Opp. 9-17; South

Coast Air Quality Management District (SCAQMD) Br. in

Opp. 9-17. In fact, however, respondents’ legal position in '

this case would either force EPA to produce an ozone FIP

for the South Coast in the absence of the very state F

measures that respondents assert the FIP can comple-

ment, or compel the relevant state authorities to

accelerate their planning efforts beyond the pace dictated

by the 1990 Amendments. That is so because Section

110(c) requires the preparation of a FIP unless “the State

corrects the deficiency and the Administrator approves

the plan or plan revision” before issuing a FIP. 42 U.S.C.

7410(c)(1) (Supp. II 1990). In order for EPA’s Admin-

istrator to approve a state plan, it must be “submitted”

by the State for approval, zbid., and it must include

“enforceable emission limitations and other control

measures.” 42 U.S.C. 7410(a)(2)(A) (Supp. II 1999).

a. As a result of these provisions, if EPA has an

obligation to prepare a FIP now for ozone attainment, it

cannot rely on current state and local planning efforts to

relieve it of that obligation unless and until California

submits an ozone SIP revision to EPA and the agency

approves it prior to the promulgation of the final FIP.

Under the 1990 Amendments, the time for submission of

the SIP revisions for ozone attainment in the Los Angeles

area is November 15, 1994. 42 U.S.C. 751la(c)(2) and (e)

(Supp. II 1990). Accordingly, California would be denied

much of the planning time afforded by the 1990

Amendments if it were to submit a revised SIP in time to

fill any portion of the “gap” ordered to be filled by EPA in

this case. ! .

1 California recently submitted its revised carbon-monoxide SIP

under the 1990 Amendments. EPA has just begun its review of that

3 -

In California, the state agency that adopts and submits

SIP revisions to EPA for approval is the California Air

Resources Board (CARB). In 1991, respondent SCAQMD

adopted a plan revision addressing ozone, but that 1991 plan

has not yet been adopted by CARB for submission as a SIP

revision. Indeed, the CARB staff has determined that the

1991 plan would besinadequate as a SIP because “[mlJost of

the plan elements * * * are incomplete” and are “unlikely

to be approved by EPA.” CARB staff report, Sept. 16, 1992,

at 34.2 Moreover, the 1991 plan is the subject of a state

court challenge filed by one of the respondents in this case.

Coalition for Clean Air v. California Air Resources

Beard, No. 372697 (Cal. Super. Ct., Sacramento County,

filed Nov. 19, 1992). Accordingly, it is at best speculative

that an approvable SIP submittal will be forthcoming to

foreclose the adoption of a fully independent FIP.*

In its 1990 proposed FIP for the South Coast, EPA

considered a 1989 SIP submission based, in part, on a 1989

plan prepared by SCAQMD.‘* That 1989 SCAQMD plan

plan, however, so it is unclear whether it satisfies the requirements of

the Act.

2 EPA staff informs us that CARB staff has suggested, in informal

discussions, that, as a last resort, it would be inclined to recommend

that CARB submit portions of the concededly inadéquate 1991 plan as a

SIP if EPA ultimately must promulgate a FIP. In light of CARB

staff’s own assessment of the current plan, the prospect that such a

submission would obviate the need for a FIP is remote.

3 The Clean Air Act, moreover, affords EPA 60 days after a plan

submission to determine whether such a submission meets minimum

criteria and a further 12 months after that deadline to determine

whether such a submission should be approved. 42 U.S.C. 7410(k)(1)

and (2). In order to forestall the obligation to adopt a FIP, the SIP

revision must not only be submitted, but must be approved by the

Administrator. 42 U.S.C. 7410(c) (Supp. IT 1990).

4 The 1989 SIP submission was also based in part on the revised

version of the California motor vehicle program adopted by CARB. See

55 Fed. Reg. 36,472 (1990). EPA was willing to credit the South Coast

for emission reductions projected by this program under the expectation

that the revised program itself would be submitted as a SIP revision.

4

contained relatively few immediately enforceable emis-

sions limitations and consisted largely of a schedule upon

which additional emissions limitations on various cate-

gories of sources would be adopted by state and local

agencies in the future. See 55 Fed. Reg. at 36,479-36,484.

EPA proposed to approve limited portions of the SIP

submission but proposed to reject the central showing of

reasonable further progress and the attainment-

demonstration portion of the 1989 SIP “because the

measures in the revised SIP do not provide sufficient

emissions reductions in an enforceable form.” Id. at

36,466. Respondents’ reliance on the 1989 SIP (CCA Br. in

Opp. 12; SCAQMD Br. in Opp. 11) is therefore misplaced,

because the 1989 SIP was inadequate when it was

submitted and it appears that the 1989 SCAQMD plan has

been superseded by the 1991 SCAQMD plan.

In short, California’s plans to address attainment of the

Act’s ozone standards in the South Coast are currently in

an uncertain state. Respondents’ assurance that EPA’s

FIP “can be limited in scope to what is necessary to

support state efforts” (SCAQMD Br. in Opp. 10; CCA Br.

in Opp. 17), thus ignores the central fact that those “state

efforts” have not matured into a SIP submittal that EPA

could approve as a mechanism for lessening the “gap” to be

filled by a FIP.

b. Respondents next argue (CCA Br. in Opp. 14-16;

SCAQMD Br. in Opp. 7, 14-15) that an EPA FIP would not

necessarily include harsh measures, and point to EPA’s

1990 FIP proposal as evidence for that proposition. In fact,

however, the “backstop” regulatory measures proposed as

an alternative in the 1990 proposed FIP were viewed as

draconian by commentators. The 1990 proposal anticipated

that near-term reductions in ozone precursors could be

achieved through a combination of state-proposed

Ibid. Most of that program has never been formally submitted by the

State for approval as part of the SIP.

5

measures and federal reformulated-fuels and other

measures (55 Fed. Reg. at 36,462), but called for across-

the-board reductions in emissions from all stationary and

other sources in the area as one alternative means of

attaining the necessary emissions reductions in later

years. Id. at 36,462-36,463. Those proposed reductions

were deemed “technologically infeasible” and “ineq-

uitable” by SCAQMD in 1990. Letter from Norton

Younglove, Chairman, SCAQMD Board to EPA Regional

Administrator Daniel McGovern at 1-2 (Oct. 5, 1990).

Similarly, CARB predicted that “adverse effects would

happen even if the measures are adopted but never

implemented,” because businesses would realize that they

would not be able to comply and would “leave the basin in

advance of implementation.” Letter from James D. Boyd,

Executive Officer, California Air Resources Board to EPA

Regional Administrator Daniel McGovern at 6-7.

Respondent CCA argues (Br. in Opp. 16) that stringent

regulatory FIP measures are a speculative threat, and

that whether to impose them is a matter of EPA choice.

EPA struggled in its 1990 proposal to avoid such

measures, and would no doubt continue such efforts to

mitigate the harsh impacts of a FIP if it were required to

issue one here. The inescapable reality, however, is that

the emissions reductions required to close the “gap” in the

current plans amount to more than 80% of the ozone

precursors in the air basin. 55 Fed. Reg. at 36,460. The

techniques or measures that are both available to EPA and

capable of independent federal enforcement to meet these

demands are strictly limited. As a result, EPA will, in all

probability, be required to propose extraordinarily

stringent measures if it is to prepare a comprehensive

ozone FIP independent of further state plans approvable as

a SIP.®

© Respondent SCAQMD argues (SCAQMD Br. in Opp. 13) that EPA

can avail itself of the authority under new Section 182(e)(5), 42 U.S.C.

751la(e)(5) (Supp. IT 1990), to lessen the burden of a FIP. That Section

6

Respondent CCA contends (Br. in Opp. 14-16) that there

are financial costs associated with any plan to improve air

quality, state or federal, and that the social and economic

burcens of a FIP will be no greater than those ultimately

required under a SIP. In fact, however, the limited tech -

niques available to the federal government, in comparison

to those available to the state and local governments,

dictate that emission reductions mandated by a fully

independent FIP would be likely to impose greater burdens

on the economic and social life of the community. Pet. 22-

23; Los Angeles Chamber of Commerce Amicus Br. Curiae

5-7. Moreover, respondent’s argument fails to account for

the incremental costs that would result from duplication of

compliance efforts by affected sources if the State fails to

submit a SIP revision that can be approved by EPA prior

to promulgation of a FIP. As sources attempt to make the

long-term capital investments necessary to meet their

compliance obligations, they will be faced with questions

concerning which plan—state or federal—will ultimately

be controlling. To the extent that affected sources are

subject to different control requirements by different

governmental entities, pollution control requirements

necessarily become even more onerous.

2. a. As we explain in the petition (Pet. 16-17), the court

of appeals’ interpretation of the Clean Air Act is illogical.

FIPs are defined as federal plans designed to remedy gaps

authorizes EPA to approve certain South Coast ozone SIP submissions

that anticipate development of new or improved control technologies.

SCAQMD’s reliance on Section 182(e)(5) ignores the fact that the State

has not yet submitted any South Coast ozone plan to EPA for approval

under the 1990 Amendments.

Respondents also suggest (SCAQMD Br. in Opp. 12) that EPA could

issue a FIP composed of EPA commitments to develop and adopt at a

later date measures to achieve emissions reductions. EPA proposed

such a “committal” FIP as an alternative in its 1990 FIP proposal, but

noted that “it is unclear whether a committal FIP for the [South Coast]

would be consistent with the statute.” 55 Fed. Reg. at 36,503. The 1990

Amendments did not eliminate that uncertainty.

ee

7

or “inadequac[ies}” in SIPs. 42 U.S.C. 7602(y) (Supp. II

1990). The “inadequacy” that gave rise to the FIP

obligation in this case was the State’s failure to meet pre-

1990 deadlines that were repealed by the 1990 Amend-

ments. Thus, the court of appeals in effect read the Act to

require issuance of a FIP to remedy an “inadequacy” that

nv longer exists.

Respondent CCA claims that the “lack of sufficient

measures [in the pre-1990 South Coast SIP] to attain

NAAQS by any date, including the new statutory

deadlines, is the ‘gap’ that EPA must now fill.” CCA Br. in

Opp. 11 n.11. But it is illogical to say that the old SIP was

declared deficient in 1988 because it did not demonstrate

_compliance with deadlines that were not imposed until

1990.° The “gap” that occasioned EPA’s 1988 disapproval

plainly related to the old law, not the new.

Respondent SCAQMD suggests (Br. in Opp. 16-17) that

its inability under the Act to address certain mobile

sources of pollution—new construction and farm equip-

ment, aircraft, and new locomotives—creates a gap as to

those sources, and recommends that EPA fill that gap in a

FIP. That argument disregards the new statutory

scheme. The 1990 Amendments established specific

schedules and conditions under which EPA is to regulate

most of those classes of mobile sources pursuant to Title

Il of the Act.’ Those provisions are wholly separate from,

6 Even the court of appeals did not endorse this reading of the Act.

To the contrary, the court expressly declined to “decide whether EPA

would be required to meet any additional requirements imposed by the

1990 Amendments in promulgating FIPs for the South Coast.” Pet.

App. 13a.

* Section 209(e)(1) preempts the States from regulating new

locomotives, new locomotive engines, and new farm and construction

equipment with engines of less than 175 horsepower. 42 U.S.C.

7543(e)(1) (Supp. II 1990). Section 213 in turn requires EPA to issue

national standards for new locomotives and locomotive engines by 1995,

and requires EPA to issue standards for other nonroad engines by

8

and independent of, the Title I SIP and FIP provisions at

issue in this case. Thus, the statutory scheme provides no

support for SCAQMD’s suggestion that EPA must

address those sources immediately by promulgating a FIP.

b. Respondents contend (CCA Br. in Opp. 28; SCAQMD

Br. in Opp. 20-22) that the second sentence of the 1990

Amendments’ savings clause, which precludes modification

of any “control requirement * * * required to be adopted by

an order [or] settlement agreement,” preserves EPA’s

FIP obligation in this ease. 42 U.S.C. 7515 (Supp. IT 1990).

lor the reasons set forth in the petition (Pet. 17-18), that

contention is without merit, because the obligation to

promulgate a FIP is not itself a “control requirement”

subject to the savings clause. See also Pet. App. 39a-40a.

Even if there were some doubt about the meaning of the

term “control requirement,” EPA’s reasonable inter-

pretation of that term as encompassing only specific

emissions-control measures would be entitled to deference.

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 843-845 (1984).

Moreover, the savings clause preserves preexisting

orders that require the adoption of control measures only

“to the extent” that they are not “inconsistent with any

provision of this [Act].” 42 U.S.C. 7515 (Supp. II 1990).

The 1990 Amendments repealed the deadlines on which

EPA’s 1988 disapproval of the South Coast SIP submittal

had been based, and substituted new ozone-SIP require-

ments that the State has not yet attempted to meet by

submitting a revised ozone SIP. Thus, EPA’s 1988

November 1992 if certain findings are made. 42 U.S.C. 7547(a)(3) and

(5) (Supp. IT 1990).

Title II also establishes EPA’s authority, in conjunction with the

Department of Transportation, to regulate emissions from aircraft. 42

U.S.C. 7571-7574. The States are preempted from imposing more

stringent standards “respecting emissions of any air pollutant from any

aircraft or engine,” 42 U.S.C. 7573, but the Act does not prevent the

States from reducing aircraft emissions in other ways.

9

disapproval of the South Coast SIP is “inconsistent with”

the new SIP provisions of the 1990 Amendments, and does

not survive by reason of the savings clause.

ce. Respondents err in contending (CCA Br. in Opp. 6-7,

22-23; SCAQMD Br. in Opp. 8, 23-24) that the legislative

history of the 1990 Amendments supports their interpreta-

tion of the Act. Respondents rely on Senator Baucus’s

statement that “EPA should complete ongoing FIP

processes only for the purposes of ensuring that the

standards are met by the statutory deadlines.” CCA Br. in

Opp. 7 (quoting 136 Cong. Rec. $16,970 (daily ed. Oct. 27,

1990)); SCAQMD Br. in Opp. 23. Respondents read this

statement to mean that EPA must promulgate a FIP now,

but fail to explain how that interpretation can be

reconciled with Senator Baucus’s contemporaneous

statement that “[wJe do not intend that this savings clause

requires EPA to finalize the Federal Implementation Plan

in California.” 136 Cong. Rec. $16,970 (daily ed. Oct. 27,

1990); see Pet. 21. Read together, the Senator’s two

statements show that he believed that the 1990 Amend -

ments suspended EPA’s pre-1990 FIP obligation, but that

EPA will need to promulgate a FIP demonstrating

attainment if California ultimately fails to meet its SIP

obligations under the 1990 Amendments.*

d. Finally, respondent CCA’s contention that Chevron

does not apply here (CCA Br. in Opp. 26-27) is incorrect.

CCA errs in suggesting that Chevron deference has never

been applied in a mandatory duty context. See Japan

Whaling Ass’n v. American Cetacean Soc’y., 478 U.S. 221,

® Respondents also rely in part on floor statements to the effect that

“EPA has the obligation to adopt control measures for sources which it

exclusively controls when those controls are necessary to help attain

national standards or meet other requirements of the Act.” 136 Cong.

Rec. $16,970 (daily ed. Oct. 27, 1990). Those statements, however, refer

to the mobile sources of pollution (7.e., non-road engines, locomotives,

and aircraft) that EPA alone can address under its authority in Title II

of the Act, and shed no light whatsoever on the question whether EPA

must promulgate a FIP under Title I of the Act.

10

231-235 (1986) (Court deferred to agency’s reasonable de-

termination of circumstances under which mandatory

statutory duty arose). Nor is it necessary for Congress to

provide an express delegation to the agency, as respon -

dents imply (CCA Br. in Opp. 27). See Pauley v. Bethen-

ergy Mines, Inc., 111 S. Ct. 2524, 2534 (1991) (Congress

may delegate interpretive authority to an agency either

“through express delegation or the introduction of an in-

terpretive gap in the statutory structure”).’

The relevant provisions of the amended Act either

clearly dispense with the old-law FIP obligation, or can

reasonably be interpreted in that way. As a result, under

either prong of the analysis mandated in Chevron, the

court of appeals’ decision to the contrary is erroneous.

For the foregoing reasons and those stated in the

petition, it is respectfully submitted that the petition for a

writ of certiorari should be granted.

KENNETH W. STARR

Solicitor General

RAYMOND B. LUDWISZEWSKI

Acting General Counsel

Environmental Protection Agency

JANUARY 1992

® Respondents also rely (CCA Br. in Opp. 4-5, 22-23) on the letter

written by EPA Administrator Reilly to Congress some six months

before enactment of the 1990 Amendments, but EPA’s post-enactment

interpretation of the Act should be regarded as the agency’s

authoritative interpretation. See Pet. 20-21. EPA cited that interpre-

tation in a supplemental brief filed on April 3, 1992. Thus, at the time of

its decision on the merits, the Ninth Circuit had before it EPA’s

contemporaneous construction of the statute.