Amicus Curiae Brief — Environmental Protection Agency v. Coalition for Clean Air

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No. 92-798

IN THE

Sigreme Court of the United States

OCTOBER TERM, 1992

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et ai.,

Petitioners

V.

COALITION FOR CLEAN AIR, et al.

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

THE LOS ANGELES AREA CHAMBER OF

COMMERCER’S MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE IN

SUPPORT OF THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY’S

PETITION FOR A WRIT OF CERTIORARI

IRWIN GOLDBLOOM

Counsel of Record

LATHAM & WATKINS

1001 Pennsylvania Avenue, N.W.

Suite 1300

Washington, D.C. 20004-2505

(202) 637-2200

ROBERT A. WYMAN

LATHAM & WATKINS

633 West Fifth Street

Suite 4000

Los Angeles, CA 90071-2007

(213) 485-1234

Attorneys for Los Angeles Area

Chamber of Commerce

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

IN THE

Siymreme Court of the United States

OCTOBER TERM, 1992

No. 92-798

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al.,

Petitioners

V.

(COALITION FOR CLEAN AIR, et al.

Re spond:

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

THE LOS ANGELES AREA CHAMBER OF

COMMERCE’S MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The Los Angeles Area Chamber of Commerce hereby

respectfully moves for leave to file the attached brief

amicus curiae in support of the United States Environ-

mental Protection Agency’s petition for a writ of cer-

ticrari. The Chamber of Commerce obtained the consent

of petitioner United States Environmental Protection

Agency (EPA) and of the following parties below: South-

ern Calhfornia Association of Governments (SCAG),

Southern California Edison Company, Southern Califor-

nia Gas Company, and the South Coast Air Quality Man-

agement District (SCAQMD). The Chamber has filed

with the Clerk of the Court telefaxed letters from these

parties, addressed to the Chamber’s attorneys, indicating

such consent. The consent of the attorney for respondent

Coalition for Clean Air and Sierra Club, Ine. was _ re-

quested but refused. Representatives of the Environmen-

tal Council of Sacramento and Sierra Club, Inc., who par-

ticipated as amici curiae in the court of appeals proceed-

ing, could not be reached.

The interest of the Los Angeles Area Chamber of Com-

merce in this case arises from its members’ intimate con-

nection with the Los Angeles area economy and the effect

of federal and state environmental regulation upon it.

The Chamber is in a unique position to express the South-

ern California business community’s serious concern

about the severe and widespread effect of the Ninth Cir-

cult’s ruling, and of a federal implementation plan, on

persons other than the immediate parties, specifically,

the people and businesses of Los Angeles. As the repre-

sentative of many of the businesses that must ultimately

comply with whatever regulations are promulgated, the

Chamber is able to place the case in its broadest and

most significant factual context. Specifically, the Cham-

ber offers its amicus curiae brief to assist this Court in

determining whether, among other reasons, the severe

practical consequences of the decision below to Southern

California’s social and economic well-being warrant

granting the petition.

Dated: December 7, 1992

Respectfully submitted,

IRWIN GOLDBLOOM

Counsel of Record

LATHAM & WATKINS

1001 Pennsylvania Avenue, N.W.

Suite 1300

Washington, D.C. 20004-2505

(202) 637-2200

ROBERT A. WYMAN

LATHAM & WATKINS

633 West Fifth Street

Suite 4000

Los Angeles, CA 90071-2007

(213) 485-1234

Attorneys for Los Angeles Area

Chamber of Commerce

— er

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE ...................... 2

REASONS FOR GRANTING THE PETITION ......... 3

I eae cede veunGaamaneseh 10

TABLE OF AUTHORITIES

Statutes and regulations:

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

$ 7401(a) (3) (Supp. IT 1996) 3

S$ 7410(a) (1) 3

S$ 7410(a) (5) 7

S$ 7431 7

S$ T5lla(c) (2) (B) 5

$ 75lla(e) (5) 5,8

§ T5lla(¢) 5

55 Fed. Reg. 36,518 (1990) 6,8

Rule:

Rules of the Supreme Court of the United States,

tule 10.1 Seashanuhtes 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-798

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al.,

Petitioners

Wi

COALITION FOR CLEAN AIR, et al.

Responde yts

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

THE LOS ANGELES AREA CHAMBER OF

COMMERCE’S BRIEF AMICUS CURIAE IN SUPPORT

OF THE UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY’S PETITION FOR A

WRIT OF CERTIORARI

The Los Angeles Area Chamber of Commerce submits

this brief in support of the United States Environmental]

Protection Agency’s petition for a writ of certiorari to

review the judgment of the United States Court of Ap-

peals for the Ninth Circuit in this case.

INTEREST OF THE AMICUS CURIAE

The Los Angeles Area Chamber of Commerce is an

organization of approximately 2,300 members representing

various and diverse businesses in the Southern California

region. Its membership comprises and employs some of

the millions of Californians who stand to lose the most

under the decision of the Ninth Circuit.

Chamber members are the primary employers in South-

ern California. They employ approximately one million

people in manufacturing, financial services, health care

delivery and international trade. The member companies

of the Chamber have headquarters or business operations

in the five counties of the South Coast and Ventura air

basins in California. Thus, they and their employees

would be directly affected by the enforcement of the Fed-

eral Implementation Plan (FIP) under the order of the

court below.

The purpose of this brief amicus curiae is to present

information not fully before the Court concerning the

extent and severity of the practical consequences of the

Ninth Circuit’s opinion. Furthermore, the Chamber antici-

pates that the parties mey take opposing positions on the

potential impact of the decision on the South Coast econ-

omy. The Chamber has sought leave of the Court to file

this brief amicus curiae to demonstrate that, from the

direct perspective of the California residents whose em-

ployers would be subject to these regulations, the Ninth

Circuit’s decision promises widespread hardship. Among

the primary interests of the Chamber are both the protec-

tion and promotion of the econcmic health of the Southern

California area and the quality of life of Southern Cali-

fornia residents, including the value of clean air. As a

practical matter, enforcement of the Ninth Circuit’s order

would directly and adversely affect the region’s economy,

without materially assisting the region in obtaining clean

air.

3

In presenting information to the Court, the Los Angeles

Arca Chamber of Commerce brings an important and

unique perspective. The members of the Chamber of

Commerce are the entities that would be regulated under

a FIP and who would need to determine how best to com-

ply with two layers of environmental regulations (i.e.,

federal and state) in an economic climate where many are

finding it difficult to survive. The Chamber will neces-

sarily speak with a more urgent voice than can the regu-

latory agencies already parties to this action.

Based on the foregoing, the Chamber has a vital in-

terest in obtaining review of the Ninth Circuit’s decision.

REASONS FOR GRANTING THE PETITION

This case involves the basic structure of the Clean Air

Act Amendments of 1990 (1990 Amendments) and the

economic health of the nation’s largest industrial area.

In 1970, Congress established a regulatory scheme whereby

state and local agencies decided upon and enforced the

specific combinations of environmental regulations that

would best achieve national clean air goals with a mini-

mum of social and economic dislocation in their particular

states and iocalities. 42 U.S.C. 7410(a)(1). This system

of state and local responsibility was confirmed in amend-

ments to the Clean Air Act passed in 1977 and 1990. See

é.g., 42 U.S.C. 7401(a)13) (Supp. IT 1990). A divided

Ninth Circuit panel, however, has decided that the federal

government, and not state and local authorities, must de-

sign the attainment plan for the South Coast region of

California before California, the Southern California As-

sociation of Governments (SCAG) and the South Coast

Air Quality Management District (‘SCAQMD) have the

opportunity, expressly provided by Congress in 1990, to

develop their plan.

teview by this Court is warranted for at least two

reasons. First, if the petition for a writ of certiorari is

denied, the clear and consistent policy choice that lies at

4

the heart of Congressional efforts to control air pollution—

that states should take the primary and initial role in

planning—will have been reversed by judicial fiat. See-

ond, the error of the pane! below, if not corrected, will

cause severe economic and social dislocation to the Los

Angeles area, and its thirteen million residents, at pre-

cisely the time when it is least able to accommodate it.

It is difficult to imagine a worse time to impose duplicate

environmental regulations on Southern California busi-

nesses. The severe negative consequences of the Ninth

Circuit’s order on the region constitute special and im-

portant reasons for review by this Court. Rules of the

Supreme Court, Rule 10.1.

The Chamber supports fully the legal analysis of the

1990 Amendments contained in EPA’s petition. This

amicus curiae brief will, therefore, address only the rea-

sons Why, as a practical matter, the adoption of a FIP

would impose such an unwarranted and burdensome im-

pact on the region.

The Chamber recognizes that attaining the national

ambient air quality standards (NAAQS) may require

measures that impose greater social and economic burdens

on the Southern California region than are necessary in

any other region of the country. In fact, such burdens

are the inevitable consequence of the current attainment

plan for the region, adopted as a result of the lengthy and

comprehensive planning by the California Air Resources

Board, SCAG and the SCAQMD, with considerable as-

sistance of numerous local jurisdictions and other state

agencies. Previous South Coast plans have been widely

recognized as the most ambitious and effective in the

country, and the current plan preserves that distinction.

It is appropriately stringent, but it has the virtue of

spreading its regulatory burdens across the wide and

diverse categories of sources that collectively contribute

to the region’s air quality problem, including large and

small businesses, households, commercial establishments

5

and a wide variety of vehicle and engine tvpes. It thus

reflects the complexity recognized by Congress when it

granted states the primary planning role. As also in-

tended by Congress, the plan is designed to balance the

burdens of regulation with its inevitable significant eco-

nomic and social impact. In Southern California, then, the

Ninth Circuit’s order would require EPA to impose a FIP

on the region that has condueted the most extensive plan-

ning of any in the nation—circumstances virtually the

opposite of those envisioned by Congress.!

In this context, a FIP will impose severe additional

burdens without materially advancing the cause of clean

air. The reasons are several: (1) EPA lacks the wide

range of tools needed to address the diversity of sourges

in the South Coast; (2) the FIP process, by its nature,

will be hastily crafted and insensitive to local cireum-

stances; {3) over time, the FIP process will be less re-

sponsive to emerging technologies and shifting economic

and social conditions; and (4) the FIP will create a dual

set of regulations and thus confuse and potentially

paralyze regulated entities.

In contrast to the wide range of planning and regula-

tory tools available to state and local government, EPA

has, for practical and legal reasons, far fewer tools at its

disposal to achieve the required degree of emissions re-

ductions ‘over 80 percent). As a practical matter, EPA

lacks sufficient information about many of the sources

for which it would need to set emission standards under

Under the pre-1990 Act, even the nation’s best air quality plan,

the South Coast plan, was viewed as deficient because if could not

project ultimate success. Congress addressed this paradox through

the 1990 Amendments by authorizing EPA to judge the adequacy

of a plan, in the interim, by its success at meeting interim progress

milestones, see 42 U.S.C. $8 7511a‘e)(2)(B), T51latge), and by al-

lowing the South Coast to demonstrate ultimate attainment by an-__

ticipating as yet undeveloped technologies. 42 U.S.C. $ 751 1ace) (5).

In making these changes, Congress remedied the only deficiencies

in the states’ plan.

6

the FIP. This is true, for example, of the many hundreds

of small manufacturing facilities, whose emissions are

too small to have triggered the pre-1990 Act’s definition

of “major sources.” While EPA developed a series of

control technique guidelines (CTGs) for major volatile

organic compound (VOC) sources in the late 1970's, it

simply lacks sufficient technical familiarity with _the

range of small VOC sources that do not fall within those

CTG categories and that are currently regulated by the

SCAQMD plan. The 1990 proposed FIP illustrates this

limitation. Instead of setting standards for individual

source categories, EPA proposed a blanket 90° reduce-

tion for all major stationary source categories in the event

that the region failed to meet certain trigger events. See

oo Fed. Reg. 36,518 (1990) (“Because EPA has so far

been unable to develop implementable control measures

for a portion of the VOC inventory, the level of control

for most of the backstop measures must be sufficient to

reduce 1987 or 1990 base year emissions by 90 percent.” )

Such an across-the-board strategy, particularly if adopted

in addition to existing state and local standards,? is blind

to differences among sources in their ability to control

emissions and in the potential impacts of regulation. It

is almost inevitable that such an approach will impose

hardships that would more easily be avoided by the re-

gion’s plan.

Likewise, although EPA can enforce minimum national

motor vehicle emission standards and certain fuel regula-

tions, it cannot regulate the use of the automobile by

“The proposed 90 FIP requirement would be caleulated from

1987 or 1990 base year emissions, notwithstanding the fact that

most stationary sources in the basin already have been heavily reg-

ulated in past years. Thus, although the SCAQMD plan regulate

many of such sources further, a FIP would almost certainly impose

additional reduction requirements, regardless of whether the tech-

nology for such additional reductions exists. For many sources, the

EPA requirement for a 90% reduction bevond 1987 or 1990 levels

could only ve met by curtailing or shutting down operations.

7

means of indirect source controls or otherwise require

land use restrictions. See 42 U.S.C. ss 7410(a) (5) (re-

garding limits to EPA’s indirect source authority), 7431

(protecting local land use authority). Moreover, to the

limited extent EPA ean regulate automobile use, it lacks

the practical capacity to implement and enforce such reg-

ulations. Because it cannot manage the region’s transpor-

tation programs, the FIP js likely to contain partial bans

on the use of vehicles as the only way to address the

region’s anticipated growth in vehicle miles travelled. See

EPA Petition for a Writ of Certiroari at 24,

Given its inability to adopt carefully tailored regula-

tions for the complete range of sources in the South

Coast basin, EPA would be much better suited to filling

gaps in the state plan if it ultimately determines that

the plan falls short of the Act’s requirements. However,

EPA will not know whether and to What extent such

gap-filling is necessary until the South Coast attainment

plan is submitted in the fall of 1994, two years from

now.

In addition to lacking the nec ‘ssary information and

authority to craft an effective FIP, the EPA lacks suffi-

cient time and opportunity for public input. Although the

actual schedule for the FIP has not been set, EPA may

well be granted a limited time in which to plan. Under

stringent time constraints, the Agency will not be able to

remedy its lack of information or to solicit and review public

comment. Rulemaking at the local level ordinarily re-

quires several steps, involving an initia] workshop by the

agency to gather information about specific souree cate-

gories, followed by publication of one or more draft reg-

ulations and a series of meetings or hearings for the

agency to receive public comment. Often the loca] agency

Visits one or more facilities to view operations first hand.

This process ocecurs for each of the over one hundred

rules promulgated by the SCAQMD. By contrast, EPA

8

must propose and promulgate final emission standards for

this enormous variety of sources in a limited period of time,

all as part of a single rulemaking action. In such a con-

text, EPA will be unable to take into account individual

circumstances of specific sources or source categories to

any significant degree. As a result, FIP requirements

are almost certain to cause unintended adverse impacts

on many of the sources the FIP regulates. EPA antici-

pated these impacts in its 1990 proposal: “The severe

backstop emission reduction requirements derive from

areawide reduction requirements of the FIP, rather than

from the normal Agency assessments of available tech-

nologies. As such, they may be costly and disruptive,

”’ 55 Fed. Reg. 36,518 (1990).

A third reason why EPA’s FIP regulations would be

certain to inflict unwarranted distress on Southern Cali-

fornia is that the FIP is less susceptible to change. Un-

der the Act, the state can continue to refine and improve

its plan for the South Coast throughout the period from

enactment of the 1990 Amendments until attainment in

the year 2010. During the interim years, the South

Coast can rely on the emergence of technologies that do

not yet exist, so long as the region meets interim prog-

ress requirements. See 42 U.S.C. $$ T5lla(e) (5).

Throughout this period, the state may evaluate changes

in its emissions inventory (due, for example. to shifting

economic and social conditions!, and in the available

array of emission reduction technologies. Based on these

changing conditions, the state would assuredly revise its

plan on an ongoing and regular basis. This is encouraged

hy Congress to achieve the dual goals of clean air and

a healthy economy. While, in theory, EPA could con-

tinually revise the FIP to reflect similar developments,

such flexibility would almost certainly be absent at the

federal planning level due to a shortage of necessary re-

sources to continue to track and revise the plan. The

lack of flexibility will prevent EPA from capitalizing on

9

emerging control opportunities and from mitigating un-

intended impacts when they materialize.

The final reason why the FIP would impose unwar-

ranted and severe burdens on the region is that it would

establish a duplicative set of emission standards on regu-

lated entities. Already, sources in the South Coast com-

ply with the most comprehensive set of air quality stand-

ards ever enacted, comprising hundreds of pages of de-

tailed provisions. As is amply illustrated by EPA’s 1990

proposal, any FIP that does more than fill gaps in state

regulation will leave sources uncertain as to whether

they should invest in technologies that will meet the cur-

rent state plan or whether they should instead prepare

to meet a different federal standard. Characterizing the

federal standard as a “backstop” helps little, of course,

because businesses planning for compliance must take

into account the contingency that the backstop will be

triggered by a state failure to meet federal require-

ments. This dual planning will inevitably add consider-

able cost to businesses in the region, and deliver a dam-

aging blow to the region’s efforts to retain and attract

businesses.

Whatever the ultimate content of a FIP, the FEPA’s

lack of sufficient information and tools to craft a carefully

tailored and effective program, the haste with which it

would have to act, its inability to respond to future

changes in the region, and the burdens of compliance with

two sets of regulations make it certain that a FIP would

deliver a terrible blow to Southern California when it can

least afford it. While such a hammer would arguably be

justified if the region had failed to meet its responsibili-

ties under the 1990 Amendments, that is clearly not the

case here, as the current South Coast plan is the most

comprehensive and aggressive plan enacted anywhere in

the country.

Now, especially, the California economy requires the

care, precision and subtlety of the state implementation

10

plan (SIP) process. The Los Angeles region is a vibrant

community, with a dynamic yet fragile economy in which

change—in demographics, economics, and technology—is

lanning approach

ize on everyday

the onlv constant. The region needs a }

that is able to adapt to and capita

changes. Mindful of this fact, Congress confirmed in the

1990 Amendments that state and local governments were

to play the primary role in crafting attainment strategies.

The EPA, on the other hand, is for practical reasons in-

stitutionally incapable of meeting the attainment goals of

the Clean Air Act for the South Coast without causing

substantial disruption. Its failures would stem not from

any inherent weakness in the EPA itself but rather from

the Ninth Cireuit’s attempt to force the FIP process into

a situation in which Coneress did not intend it to be used.

As fully developed by the Solicitor General’s Petition,

the plain language of the 1990 Amendments to the Clean

Air Act, as well as its legislative history, demonstrate

that Congress did not intend a result, as ordered by the

Ninth Circuit that is impracticable, unwise and harmful

to the region.

CONCLUSION

There are special and important reasons for review 01

the Ninth Cireuit’s decision. This case involves questions

of enormous practical significance for the people of the

South Coast and other areas of California. Congress

granted the state and the region the time to craft an

attainment program with care. If EPA’s petition is de-

nied, the citizens and businesses of the Los Angeles area

will be denied that opportunity. Instead, the federal gov-

ernment will make the choices for them. Without the

necessary time, tools and process, EPA will necessarily

adopt a FIP that imposes unwarranted social and eco-

nomic hardship. The Chamber believes the degree of such

impact could be staggering. It need not be so. The Cham-

ber respectfully urges the Court to grant the petition for

writ of certiorari or, in the alternative, based on the

1]

compelling legal arguments articulated in EPA’s petition,

to consider summary reversal.

Respectfully submitted,

IRWIN GOLDBLOOM

Counsel of Record

LATHAM & WATKINS

1001 Pennsylvania Avenue, N.W

Suite 1300

Washington, D.C. 20004-2505

(202) 637-2200

ROBERT A. WYMAN

LATHAM & WATKINS

633 West Fifth Street

Suite 4000

Los Angeles, CA 90071-2007

(213) 485-1234

Attorneys for Los Angeles Area

December 1992 i, ambe r of Commerce