Petition for Writ of Certiorari — Southern California Association of Governments v. Coalition for Clean Air (No. 92-1014)

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In The

Supreme Court of the United States

October Term, 1992

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SOUTHERN CALIFORNIA ASSOCIATION

OF GOVERNMENTS,

Petitioner,

COALITION FOR CLEAN AIR, ET AL.,

Respondents.

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Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

e

PETITION FOR WRIT OF CERTIORARI ‘

S

CoLin LENNARD*

Burke, WILLIAMS & SORENSEN

611 W. Sixth Street

Suite 2500

Los Angeles, California 90017

(213) 236-0600

HELENE SMOOKLER

Counsel

Southern California

Association of Governments

818 W. 7th St., 12th FI.

Los Angeles, California 90017

(213) 236-1800

Counsel for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Despite Congress’s determination that the develop-

ment of local air pollution control measures is initially the

responsibility of State and local governments, is EPA

required to promulgate a federal air pollution control

plan in Southern California because EPA found in 1988

that California failed to meet air attainment requirements

which have now been repealed by the 1990 Clean Air Act

Amendments and replaced with new requirements which

Southern California has not yet had the opportunity to

meet.

ii

PARTIES TO THE PROCEEDINGS BELOW

The appellants before the court of appeals in No.

91-55383 were the Coalition for Clean Air and Sierra

Club, Inc. The appellant before the court of appeals in

No. 91-55386 was the South Coast Air Quality Manage-

ment District. The appellees in both cases were the

United States Environmental Protection Agency (EPA),

William K. Reilly, Administrator, Daniel G. McGovern,

Regional Administrator, and David P. Howekamp, Direc-

tor, Air and Toxics Division, EPA Region IX.

The Southern California Association of Governments

intervened in the court of appeals in support of EPA. The

Environmental Council of Sacramento and Sierra Club,

Inc. participated in the court of appeals as amici curiae in

support of the appellants.

ili

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

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In The

Supreme Court of the United States

October Term, 1992

¢

SOUTHERN CALIFORNIA ASSOCIATION

OF GOVERNMENTS,

Petitioner,

COALITION FOR CLEAN AIR, ET AL.,

Respondents.

a

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

es —

PETITION FOR WRIT OF CERTIORARI

¢

The Southern California Association of Governments

(“SCAG”), petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at 971

F.2d 219. The opinion of the district court is reported at

762 F.Supp. 1399. The opinions are contained in the

appendix to petition for writ of certiorari (App. 1a-43a)

filed in this matter by the Solicitor General on behalf of

the Environmental Protection Agency, et al. (“EPA’s Peti-

tion”).

JURISDICTION

The judgment of the court of appeals was entered on

July 1, 1992. A petition for rehearing was denied on

September 11, 1992. (EPA’s Petition, App. 44a.) The juris-

diction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Federal Clean Air Act,

42 U.S.C. § 7401 et seg., as amended, are contained in the

appendix to EPA’s Petition. (App. 45a-47a.) Pursuant to

section 174(a) of the Federal Clean Air Act, 42 U.S.C.

§ 7504, SCAG has been designated as one of the co-lead

agencies responsible for development of the nonattain-

ment air plans for the South Coast Air Basin.

The California statutes which mandate that SCAG

participate in the process of preparing elements to be

included in the State Implementation Plan (“SIP”) for the

South Coast Air Basin, Cal. Health & Safety Code

§§ 40460, 40463, 40464, 40465, are reproduced in the

appendix to this petition. (App. Al-A4.)

STATEMENT

SCAG hereby adopts the STATEMENT contained in

EPA’s Petition.

REASONS FOR GRANTING THE PETITION

SCAG concurs in, and adopts the interpretation of,

the Clean Air Act and the 1990 Amendments in the

REASONS FOR GRANTING THE PETITION contained in

the EPA’s Petition. SCAG petitions for a writ of certiorari

independently of EPA to address the appropriate division

of responsibility between the federal, state and local gov-

ernments under the Federal Clean Air Act. SCAG wishes

to emphasize the extremely important issue of state and

local agency involvement in plan preparation, and the

practical impacts of the court of appeals’ decision on

agencies like SCAG if they are precluded from primary

involvement and full participation in the development of

a plan to reduce emissions as contemplated by the Fed-

eral Clean Air Act and the 1990 Amendments. SCAG

contains six counties, over a hundred cities and a popula-

tion of approximately fifteen million.

SCAG is a duly constituted joint powers agency

under California law, a regional governmental body, and

the federally designated Metropolitan Planning Organi-

zation representing the Southern California counties of

Los Angeles, Orange, San Bernardino, Riverside, Ventura,

and Imperial, and most of the cities within those counties.

As the regional council of governments, SCAG is inde-

pendently responsible for a number of regional activities,

including transportation planning, water planning, hous-

ing needs planning, and air quality planning. SCAG also

is responsible for preparing that portion of the Air Qual-

ity Management Plan for the South Coast Air Basin

(“AQMP”) which will become a part of the SIP for the

South Coast Air Basin. The Ninth Circuit’s opinion detri-

mentally affects SCAG’s ability to perform its statutory

obligations in some important ways which are different

from and independent of the detriment suffered by EPA,

as discussed below.

In connection with the implementation of the Clean

Air Act, 42 U.S.C. § 7401 et seg., SCAG has been charged

by California’s legislature, in coordination with cities and

counties in the South Coast Air Quality Management

District (“SCAQMD”), with the independent preparation

of certain SIP elemer.. for © «:*‘ornia’s attainment of

national ambient air qué!'!y stanaards (“NAAQS”) for all

criteria pollutants in the South Coast Air Basin. Cal.

Health & Safety Code § 40460 (App., infra, A1l-A2.) Speci-

fically, SCAG is required to prepare and approve those

elements relating to regional demographic projections

and integrated regional land use, housing, employment

and transportation programs, measures and strategies,

and to provide related emissions data. California Health

& Safety Code § 40460(b). (App., infra, Al.) SCAG also is

charged with providing updated information with respect

to these elements. California Health & Safety Code

§ 40463. (App., infra, A2-A3.) SCAG must coordinate the

input of cities and counties in developing the elements

for which it is responsible. California Health & Safety

Code § 40464. (App., infra, A4.) SCAQMD must incorpo-

rate the elements prepared by SCAG into the AQMP, and

forward it to the California Air Resources Board for

review and inclusion in California’s SIP. The state’s SIP

subsequently is submitted to EPA. Cal. Health & Safety

Code § 40465. (App., infra, A4.)

In accordance with its statutory mandate, SCAG has

proposed measures necessary to achieve and maintain

state and federal ambient air quality standards in the

South Coast Air Basin. On March 17, 1989, SCAQMD

adopted a revision to the AQMP for the South Coast Air

Basin. After approval by the California Air Resources

Board, the AQMP was submitted to EPA on August 18,

1989, as a revision to California’s SIP. Under regulations

proposed in the revised SIP, SCAG would coordinate an

extensive transportation and land-use management pro-

gram, SCAQMD would control emissions produced by

industrial and commercial sources, and the California Air

Resources Board would oversee reductions in emissions

from consumer products and mobile sources. Prior to the

enactment of the 1990 Amendments, California submitted

the revised SIP for EPA’s consideration and approval. As

of this date, EPA has neither approved nor disapproved

California’s latest SIP submittal.

SCAG also has complied with the California Clean

Air Act which requires local air districts along with coun-

cils of governments, such as SCAG, to prepare a similar

plan for attainment of NAAQS. Cal. Health & Safety

Code § 40911 et seq. SCAG approved and the California

Air Resources Board has adopted, in October, 1992, a plan

imposing obligations on local agencies within the South

Coast Air Basin to meet air quality attainment require-

ments of the California statute.

SCAG has proposed measures, as required, necessary

to achieve and maintain state and federal ambient air

quality standards in the South Coast Air Basin. Most of

the work on the matters which are necessary in order to

develop a realistic attainment plan has been completed or

is in the process of being completed.

The court of appeals’ decision has significant conse-

quences adversely affecting the ability of local agencies to

attain NAAQS. The decision usurps the primary role of

state and local agencies in controlling emissions, and

decreases the likelihood that the goals of the Clean Air

Act will be met. In addition to frustrating the goals of the

Clean Air Act, the decision will affect most, if not all,

Californians in the South Coast Air Basin (and the Sacra-

mento and Ventura areas as well)! on a personal level.

EPA-mandated control measures could result in severe

economic and social consequences. Congress in adopting

the 1990 Amendments, recognized that such severe eco-

nomic and social dislocations should be avoided. In fur-

thering this goal, Congress designated state and local

agencies to be the primary source of the plan, relegating

to EPA a secondary “backstop” role.

Achievement of NAAQS will depend significantly on

the ability of each local jurisdiction to implement control

measures contained in a plan. For implementation to be

! This litigation will resolve not only the instant action, but

will serve as precedent for other actions involving the Sacra-

mento area, Environmental Council of Sacramento v. EPA, Civ. No.

S-87-420 EJG (E.D. Cal. Dec. 2, 1991), aff'd, No. 92-15293, and the

County of Ventura, Citizens te Preserve the Ojai v. EPA, No.

CV-88-00982 HLH (C.D. Cal. March 13, 1991).

successful, control measures imposed on a city, for exam-

ple, the size of Lomita in Los Angeles County (population

19,555) must necessarily be different than those imposed

on, for example, the City of Los Angeles, with its 3

million plus residents and its correspondingly larger

financial and resource capabilities. A city with a large

industrial base such as Vernon should be subject to differ-

ent control measures than a largely residential city such

as Palos Verdes Estates. Similarly, rural and urbanized

cities should be subject to different control measures to

meet air quality attainment standards.

EPA does not have the knowledge or resources to

design a plan that would be responsive to the important

differences among the local jurisdictions. An example of

the type of control measure EPA would adopt is gasoline

rationing. 41 Fed. Reg. 45,565 (1976). While this draconian

measure is as unlikely to be implemented now, if pro-

posed, as when EPA proposed it, it exemplifies the type

of unworkable, unattainable measure which fails to rec-

ognize the diversity among the local jurisdictions within

the South Coast Air Basin and which is likely to be

mandated by EPA if that entity is required to be primarily

responsible for preparation of a plan for the South Coast

Air Basin. State and local agency participation in the

development of a plan pursuant to the newly adopted

time limits and standards contained in the 1990 amend-

ments to the Clean Air Act will ensure that the vast

differences in the local jurisdictions in the South Coast

Air Basin will be duly considered and the likelihood of

achieving NAAQS substantially improved. These agen-

cies for several years have been collecting and analyzing

data concerning land use, transportation, demographics

and other information necessary to develop a workable

plan to achieve NAAQS.

Further, a plan developed by EPA without primary

input from state and local agencies could, and probably

would, overlap, conflict with and duplicate the air plans

already developed by the state and local agencies under

the California Clean Air Act and the Federal Clean Air

Act, causing needless expenditure of public funds, unnec-

essary confusion as to which plan to follow, and unneces-

sary delay in attainment of NAAQS.

SCAG has a vital interest in coordinating and repre-

senting the interests of affected local governments in

connection with the imposition of air quality require-

ments in the South Coast Air Basin. If the court of

appeals’ decision is permitted to stand, it will impair

SCAG’s ability to take advantage of the opportunity to

prepare and suggest air attainment strategies as autho-

rized and encouraged under the new provisions of the

1990 Federal Clean Air Act Amendments. SCAG’s input

under the new time limitations established by the 1990

Amendments to the Federal Clean Air Act will ensure the

involvement of the impacted Southern California coun-

ties and cities in air quality planning and implementation

in the South Coast Air Basin.

The better construction of the Federal Clean Air Act,

and the one clearly contemplated by Congress, is one

which allows state and local agencies to perform the

functions of developing a plan and delegates to EPA the

role of reviewing the plan. Enforcing the terms of the

Settlement Agreement requiring EPA to prepare a plan in

the first instance would require needless expenditure of

taxpayer funds to enforce time limitations and attainment

standards that have been repealed by Congress because

such time limitations and standards proved to be unwise

and unattainable. As congently observed by Judge

Noonan in his dissent to the court of appeals’ majority

opinion: “It 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.” (EPA Petition, App. 31a.)

If permitted to stand, the Court of Appeals’ decision

will deprive state and local air quality planning agencies

such as SCAG the opportunity to prepare, suggest and

implement air pollution control strategies. SCAG believes

Congress intended that state and local agencies prepare

air pollution control plans in the first instance. Thus, the

Court of Appeals’ decision turns the Act on its head by

mandating EPA promulgation of a FIP at this time,

thereby denying the state and tocal agencies in Southern

California the ability to plan and develop air attainment

Strategies in the time frame and manner specifically

authorized under the 1990 Amendments to the Federal

Clean Air Act.

10

CONCLUSION

The petition for a writ of certiorari should be

granted. In the alternative, the Court may wish to con-

sider summary reversal.

Respectfully submitted,

CoLin LENNARD

Burke, WittiamMs & SORENSEN

HELENE SMOOKLER

Counsel, Southern California

Association of Governments

December 10, 1992

Al

APPENDIX A

§ 40460. (a) No later than January 31, 1979, the south

coast district board shall adopt a plan to achieve and

maintain the state and federal ambient air quality stan-

dards for the South Coast Air Basin. The plan shal! be

revised and adopted by the south coast district board by

January 31, 1982, according to a schedule consistent with

subdivision (a) of Section 40463. The plan revisions shall

be compiled by the south coast district board, with the

cooperation of the state board and the Department of

Transportation, and the active participation of the South-

ern California Association of Governments and the coun-

ties and cities within the South Coast Air Basin.

(b) With the assistance of counties and cities, the

Southern California Association of Governments shall

have responsibility for preparing and approving the por-

tions of the plan relating to regional demographic projec-

tions and integrated regional land use, housing,

employment, and transportation programs, measures,

and strategies. The Southern California Association of

Governments shall analyze and provide emissions data

related to its planning responsibilities.

(c) The south coast district shall have the respon-

sibility for preparing and analyzing the portions of the

plan elements relating to existing air quality, emissions

data, results of air quality modeling, and stationary

source control measures. The south coast district shall

combine its portion of the plan with those prepared by

the Southern California Association of Governments.

In consultation with the south coast district board,

the Southern California Association of Governments, and

A2

other appropriate local agencies, the state board shall

provide the emissions reductions attributed to technolog-

ical vehicular source control strategies included in the

plan.

(d) Upon adoption by the state board, the plan and

future revisions shall be the air quality management plan

and, as submitted to the Environmental Protection

Agency, the federally required state implementation plan

for the South Coast Air Basin. Notwithstanding any other

provision of this division, the state implementation plan

for the air basin shall only include those provisions nec-

essary to meet the requirements of the Clean Air Act (42

U.S.C. Sec. 7401 et seq.).

§ 40463. (a) The plan shall be formally reviewed every

two years beginning in 1982 by the agencies responsible

for preparing plan revisions. In the event of revisions, the

compliance schedules and emission limitations shall be

amended to reflect advances in technology, control strate-

gies, and administrative practices. The south coast dis-

trict board may delay submittal of revisions up to two

years if necessary to synchronize with the dates of sub-

mittal required under the Clean Air Act (42 U.S.C. Sec.

7401 et seq.).

(b) With the active participation of the Southern

California Association of Governments, a South Coast Air

Basin emission carrying capacity for each state and fed-

eral ambient air quality standard shall be established by

the south coast district board for each formal review of

A3

the plan consistent with subdivision (a) and shall be

updated to reflect new data and modeling results. A

carrying capacity is the maximum level of emissions

which would enable the attainment and maintenance of

an ambient air quality standard for a pollutant. Emission

carrying capacity for state standards shall not be a part of

the state implementation plan requirements of the Clean

Air Act for the South Coast Air Basin.

(c) The state board shall review and comment,

within 60 days of submittal by the south coast district, on

the emission carrying capacity, air quality model selec-

tion, and all other data required by this section. The south

coast district board and the Southern California Associa-

tion of Governments Executive Committee shall consider

the comments of the state board and shall either accept

the state board’s recommendations regarding carrying

capacity or shall advise the state board that the recom-

mendations are not accepted.

(d) If the state board receives notification that its

recommendations are not accepted, the state board shall

convene a conflict resolution committee within 30 days to

attempt to resolve the differences. The committee shall be

composed of two members each of the state board, the

Executive Committee of the Southern California Associa-

tion of Governments, and the south coast district board

appointed by the entity they represent. The committee

shall make a recommendation to the three governing

boards.

A4

§ 40464. The Southern California Association of Govern-

ments shall coordinate the efforts of the counties and

cities in the precess of developing and reviewing plan

elements which meet the requirements of the plan, state

and federal law, and local needs relating to transporta-

tion, land use, demographic projections, employment,

housing, and other matters of local concern.

§ 40465. The Southern California Association of Govern-

ments shall submit its plan elements to the south coast

district board by June 1 of each odd-numbered year,

except in the case of a delayed submittal as provided in

subdivision (a) of Section 40463, for incorporation into

the air quality management plan. The district shall com-

bine the association’s plan elements with the south coast

district elements as specified in subdivision (a) of Section

40460. Each agency shall prepare and submit all neces-

sary documentation, including that of public and inter-

governmental involvement.