Opposition Brief — Southern California Association of Governments v. Coalition for Clean Air (No. 92-1014)

| Supreme Court, Us.

FILED

/ DEC 18 1998

DERC=H5. OLERK

In THE SUPREME COURT OF THE HAITED STATES a

OCTOBER TERM, 1992

SOUTHERN CALIFORNIA ASSOCIATION

OF GOVERNMENTS, PETITIONER,

.

COALITION FOR CLEAN AIR, INC., ef 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

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

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 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 AUTHORITIES

STATUTES AND REGULATIONS

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

§ 110(c), 42 U.S.C. § 7410(c) (Supp. 11 1990)... .. 6

§ 302(y), 42 U.S.C. § 7602(y) (Supp. 11 1990)... .. 4

be. 0. 8.040. 0..2 22 eee 2

as Se 1

MISCELLANEOUS

55 Fed. Reg. (1990)

in THE SUPREME COURT OF THE HITED STATES

OCTOBER TERM, 1992

No. 92-1014

SOUTHERN CALIFORNIA ASSOCIATION

OF GOVERNMENTS, PETITIONER,

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 Southern California Association of

Governments’ ("SCAG") Petition for Writ of Certiorari

("Petition") and urge that the Petition be denied. As set forth in

more detail in the Coalition’s December 9, 1992, Brief in

Opposition ("Coalition Brief") to the Environmental Protection

, Agency’s ("EPA’s") parallel petition for writ of certiorari ("EPA

‘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.

Petition") in No. 92-798, 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.

Since the SCAG Petition largely repeats and incorporates

the EPA Petition, in response the Coalition incorporates and

relies upon the December 9, 1992, Coalition Brief in its entirety.

The reason for SCAG’s separate petition is unclear. SCAG

was a party to the same appeals addressed by the EPA Petition

in No. 92-798, and by virtue of Supreme Court Rule 12.4 SCAG

is deemed to be a party to the proceedings before this Court as

initiated by the EPA Petition. However, SCAG elected not to

file a brief in support of the EPA Petition within the twenty day

period provided under Supreme Court Rule 12.4, a period that

cannot be extended. Instead, SCAG has styled as a separate

petition what amounts to a brief in support of the EPA Petition -

- as such it is not timely filed.”

The nature of SCAG’s pleading is apparent from the fact

7As with the brief filed by the Los Angeles Area Chamber of

Commerce ("Chamber"), the practical effect of this approach was to

prevent the Coalition from addressing in the original brief in opposition the

points made by SCAG. It also potentially reopens a thirty day period for

filing this opposition. In order to move this matter forward promptly, the

Coalition has filed this brief in opposition well in advance of that new

deadline, and respectfully requests that the matter be set for conference so

that further delays in the FIP can be minimized.

Although this situation appears somewhat unusual since EPA filed its

Petition approximately five weeks before it was due, so the twenty day

period ran before the original deadline to petition for certiorari, there

seems to be no reason to allow SCAG to avoid that twenty day limit simply

by characterizing its supporting brief as a separate petition.

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that SCAG’s statement of the "questions presented" is virtually

identical to EPA’s and SCAG relies throughout its Petition on

reference to EPA’s Petition to provide essential elements of its

own Petition.

The reasons stated by SCAG for granting the petition also

closely parallel the arguments made by EPA. For that reason,

the Coalition relies principally on its earlier Coalition Brief to

respond to most of the arguments in SCAG’s Petition. Only key

points and points not previously raised by EPA are addressed

below.

SCAG first describes the extensive state plan prepared by

SCAG and the South Coast Air Quality Management District

("SCAQMD") and submitted to EPA in 1989, and expresses the

concern that EPA’s FIP will be prepared without considering this

state plan. SCAG Petition at 5. But there is nothing in the 1990

Amendments or the Ninth Circuit’s opinion that prevents EPA

from dovetailing its plan with the already-submitted state plan.

Indeed, a coordinated state/federal process is expressly allowed

under the new definition of FIPs, added by the 1990

Amendments:

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.

42 U.S.C. § 7602(y) (Supp. If 1990). This is exactly what EPA

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recommended in the proposed FIP rulemaking published

September 5, 1990. 55 Fed. Reg. 36,458 (1990).

Significantly, SCAG recognizes that, "[mJost 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." SCAG Petition at 6. This concession discloses as

mere rhetoric the claim that completion of the FIP at this time

will prevent the state from taking the initiative to develop plan

requirements. SCAG and SCAQMD have been working on this

plan now for over twenty years, and a complete plan was

submitted in 1989, as SCAG recognizes. The state has therefore

had the opportunity to serve as the "primary source of the plan

." Id. The fact remains, however, that the plan cannot

show attainment of the ambient air quality standards by the

statutory deadline without federal measures, as discussed at

length in SCAQMD’s brief in opposition to the EPA Petition.

Curiously, SCAG argues that EPA should have a secondary

"packstop" role that is limited to filling gaps in the state plan, but

this is exactly what EPA did in the September 1990 proposed

FIP -- an approach that now is expressly permitted by the new

FIP definition quoted above. No party, including the Coalition,

has ever argued to the contrary -- i.e., that the FIP will need to

be complete in and of itself. The Ninth Circuit, for its part,

properly applied this principle by recognizing that, “a FIP, as

defined by the 1990 Amendments, is specifically designed to

supplement rather than to replace state planning... ." EPA

Petition at 16a n. 10. The Ninth Circuit also confirmed that,

"there appears to be nothing to stop EPA from allowing

California to rely on anticipated technology by approving SIP

provisions that now meet the requirements of the Act." EPA

Petition at 15a. The harms forecasted by SCAG are

unsupported; in any event those harms are not implicated by the

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language of the Ninth Circuit’s decision.

SCAG’s speculation that EPA’s FIP will not be tailored to

local circumstances (SCAG Petition at 6-7) fails to cite any real

basis for this concern or to point to any particular limitation on

EPA’s ability to adapt the FIP to local circumstances. In fact, no

such limitation exists. EPA can regulate industrial areas

differently than residential areas, for example, just as can SCAG

and SCAQMD.?

The concern that SCAG will be frozen out of the FIP

process (SCAG Petition at 8 - 9) likewise is unsupported. The

Coalition for its part is fully supportive of a reasonable period

for FIP development that allows receipt of public input (at

minimum) through public comment following publication of a

revised FIP proposal. The FIP can take into account the

concerns expressed by SCAG and others and can also take

advantage of the new flexibility in the 1990 Amendments. The

specific concern that SCAG demographic analyses and population

forecasts will not be addressed is belied by the September 1990

proposed FIP which in fact relied on those projections. 55 Fed.

Reg. at 36,501 ("EPA’s proposed FIP for ozone and CO is

largely based on the State’s recent draft baseyear inventory for

calendar year 1987 and the State’s projected inventories for 2000

and 2010 contained in the 1989 AQMP").

The fact that neither SCAG, EPA nor the Chamber can

identify specific reasons why the FIP will be irrationally

burdensome, and instead must rely on general claims of hardship

or dire forecasts of gas rationing and similarly preposterous

‘Similarly, SCAG’s forecast that EPA’s 1976 gas rationing fiasco will

be repeated is not borne out by EPA’s September, 1990, proposed FIP nor

by any other authority.

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proposals, discloses the underlying flaw in their analysis and the

correctness of the Ninth Circuit’s decision. As the Ninth Circuit

held, there is no anomaly in having the FIPs proceed now, and

the plain language of Section 110(c) continuing EPA’s FIP duties

should be enforced despite the long standing objections of some

parties who might be affected. Those objections were presented

to Congress but rejected; Congress’ determination is dispositive.

As with the Chamber’s amicus brief, the nature of SCAG’s

arguments illustrates that this is fundamentally a political matter

that was resolved by Congress in the 1990 Amendments through

the compromise language selected in Section 110(c) and in the

FIP definition quoted above. As EPA Administrator Reilly

recognized, however, this compromise language continued the

agency’s obligation to complete the FIPs for the South Coast.

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 18, 1992