Petition for Writ of Certiorari — Fafarman v. Environmental Protection Agency

Supreme Court. U.S. % }

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97 696 OCI 2 1H

No. OFFICE OF THE CLERK

In the

SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1997

LAWRENCE FAFARM&4AN,

fPetitioner,

vs.

U.S. ENVIRONMENTAL PROTECTION AGENCY

et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Lawrence Fafarman

5298'/, Village Green

Los Angeles, CA 90016

(213) 293-6029

Petitioner, pro se

REINER eer nny

eT

QUESTIONS PRESENTED

Five issues are presented here for review.

Ist Issue: The court's opinion disagreed with a material

allegation that was not disputed by any party or intervenor in

the case. Basis for writ: Supreme Court Rule 10(a)

2nd Issue: The court's ruling that the petitioner's

constitutional claims were "untimely" is contrary to the

principle that statutory bars to constitutional claims are

barred by the Supremacy Clause of the U.S. Constitution,

Article VI, Clause 2. See Carter v. Carter Coal Co,, 298

U.S. 238, 296-297 (1935) Basis for writ: Supreme Court

Rule 10(c)

3rd Issue: The right to sue "at any time” for withdrawal

of the so-called “California waivers" (42 U.S.C. §7543(b))

was implicit in a Senate report's reassurance that the U.S.

Environmental Protection Agency ("EPA") would have the

right to withdraw those waivers "at any time," and under

"the cardinal rule .... that repeals by implication are not

favored,” Posadas v, National City Bank, 296 U.S. 497,

503, this right to sue “at any time” was not implicitly

repealed by 42 U.S.C. §7607(b)(1)'s general time limits for

filing suit. Basis for writ: Supreme Court Rule 10(c)

4th Issue: 42 U.S.C. §7607(b)(2) indicates that 42

U.S.C. §7607(b)(1)'s 60-day time limits for petitioning for

judicial review were intended to apply only to court actions

seeking "enforcement," whereas, in the words of Heckler v.

Chaney, 470 U.S. 821, 831-832, this petitioner was not

seeking “enforcement” but was seeking review of

“affirmative act[s] of approval": the EPA's grants of the so-

called California waivers pursuant to 42 U.S.C. §7543(b).

Basis for writ: Supreme Court Rule 10(c)

Sth Issue: A petitioner seeking reversal of an agency

action need only show that non-reversal denies relief, and

need not show that that action was immediate or direct cause

of injury. Basis for writ: Supreme Court Rule 10(a)

TABLE OF CONTENTS

QUESTIONS PRESENTED -i-

TABLE OF AUTHORITIES -iii-

CASE INFORMATION I

STATEMENT OF CASE

BASIS OF FEDERAL JURISDICTION IN 2

THE COURT OF FIRST INSTANCE

(D.C. CIRCUIT COURT OF APPEALS)

se ere ene

BACKGROUND 2

REASONS FOR GRANTING WRIT

APPLICABLE SUPREME COURT 5

RULE 10 REASONS i

FIRST ISSUE FOR REVIEW 6 :

SECOND ISSUE FOR REVIEW 8 |

THIRD ISSUE FOR REVIEW 10 |

FOURTH ISSUE FOR REVIEW 12 |

FIFTH ISSUE FOR REVIEW 13 )

APPENDIX la

De wo he Baa

:

t

;

TABLE OF AUTHORITIES

Abbott Laboratories v. Gardner,

387 U.S. 136, 140-141 (1966)

467 U.S. 340, 345 (1983)

Califano v. Sanders, 430 U.S. 99, 109(1976)

401 U.S. 402

Carter v, Carter Coal Co,,

298 U.S. 238, 296-297 (1935)

Heckler v. Chaney, 470 U.S. 821, 831-832

Johnson v, Robison, 415 U.S. 361, 366(1973)

the California Superior Court,

County of Sacramento, Case #95AS05228,

April 9, 1997

296 U.S. 497, 503 (1935)

Senate Report No, 403,

90th Congress -- Ist Session, p. 34.

5 U.S.C. §551(13)

1]

1]

10

13,15

5 U.S.C. §702 14,15

28 U.S.C. §1254(1) l

42 U.S.C. §7543(a) 2

42 U.S.C. §7543(b) 2,4,11,13,14

42 U.S.C. §7604 7,8

42 U.S.C. §7607 2,4,8,12,14,15

Public Law 90-148 1]

Public Law 91-604 1]

California Revenue and Taxation Code, 3

§ §6261-6263 (Vehicle Smog Impact Fee)

U.S. Constitution, art. I, sec. 8, cl. 3 4,5 |

(Commerce Clause)

U.S. Constitution, art. III, sec. 2, cl. 1 7

U.S. Constitution, art. IV, sec. 2, cl. 1 4

(Privileges and Immunities Clause)

U.S. Constitution, art. VI, sec. 2 8,9

(Supremacy Clause)

oh¥-

CASE INFORMATION

Official court opinions or orders: Lawrence Fafarman

, U.S. Court

of Appeals for the District of Columbia Circuit, Case No.

96-1473. This suit was filed as an original action in the

D.C. Circuit Court of Appeals, pursuant to 42 U.S.C.

§7607(b)(1) (hence there is no district court judgment)

Date of entry of judgment: June 30, 1997

Date of entry of denials of rehearing and

rehearing en banc: August 28, 1997

Statute conferring jurisdiction on U.S. Supreme Court:

28 U.S.C. §1254(1).

Statutes and constitutional provisions involved in the case:

42 U.S.C. §7543(a)

42 U.S.C. §7543(b) ("California Waiver" provision)

42 U.S.C. §7607

5 U.S.C. §551(13)

5 U.S.C. §702

California Revenue and Taxation Code §§6261 -6263

("Vehicle Smog Impact Fee")

Commerce Clause of U.S. Constitution (Art. I, Sec.

8, Clause 3)

Privileges and Immunities Clause of U.S. Constitution

(Art. IV, Sec. 2, Clause 1)

Supremacy Clause of the U.S. Constitution (Art. VI,

Clause 2)

STATEMENT OF CASE

BASIS OF FEDERAL JURISDICTION

IN THE COURT OF FIRST INSTANCE

(COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT)

Original jurisdiction of the D.C. Circuit Court of

Appeals is based on 42 U.S.C. §7607(b)(1)'s provision that,

in addition to petitions for review of certain enumerated EPA

actions, a petition for review of “any other nationally

applicable regulations promulgated, or final action taken, by

the Administrator under this chapter" may be filed only in

that court. So-called “California waivers" (42 U.S.C.

§7543(b)) are considered to be “nationally applicable”

agency actions because they affect automotive manufacturers,

suppliers and dealers throughout the nation.

BACKGROUND

Under 42 U.S.C. §7543(b), sometimes called the

"California waiver" provision, the respondent EPA has on

several occasions granted California a waiver of 42 U.S.C.

§7543(a), which generally prohibits individual States from

establishing their own new-car emissions-control regulations.

As a result of these waivers, hereafter called "California

waivers” or simply “waivers,” new cars sold in California

have California emissions-control certification instead of

federal emissions-control certification. However, depending

on the model of vehicle, the federal emissions standards and

the California emissions standards are sometimes the same.

In some cases, new cars sold outside of California have

.2.

California new-car certification.

With certain narrow exceptions that are not based on

emissions levels, California arbitrarily charges an extra fee

of $300, called the "Vehicle Smog Impact Fee" (California

Revenue and Taxation Code §§ 6261-6263), for the new

registration of a used out-of-state motor vehicle if that

vehicle has the federal new-car emissions-control certification

instead of the California certification (as noted above, some

cars that were sold new outside California have the

California certification). In summary: without the

California waivers, there could be no California new-car

emissions certification, and without California new-car

emissions certification, there could be no Vehicle Smog

Impact Fee, as all cars would then have the same new-car

emissions certification (federal) and there would be no basis

for the fee. Thus, the Vehicle Smog Impact Fee is entirely

based on the California waivers and owes its existence to

those waivers. The California Dept. of Motor Vehicles

(DMV) is directed to deposit these fees in the state's General

Fund after deducting authorized administrative costs.

Payment of this fee does not provide the vehicle's owner

with any relief from the requirements of California's

emissions-control inspection & maintenance programs,

including the stringent new program known as "Smog Check

II," and there is absolutely nothing that can legally be done

to the car to avoid this fee. A California Dept. of Motor

Vehicles brochure, titled, "Nonresident Vehicle Smog Impact

Fee," states, in part,

Payment of the $300 Nonresident Vehicle Smog

Impact Fee does not exempt a vehicle from the smog

inspection, equipment, and minimum performance, or

any other requirements.

Issuance of valid Certification of Compliance

from a smog check station or an engine identification

-%

label issued by the Bureau of Automotive Repair does

not exempt a vehicle from the $300 Nonresident

Vehicle Smog Impact Fee.

Vehicles are certified at the time of manufacture.

After manufacture, a vehicle's certification cannot be

changed by the addition or replacement of equipment.

(http://www.dmv.ca. gov/Brochures/Fast_Facts/FF

VR3.html)

Pursuant to 42 U.S.C. §7607(b)(1), this petitioner

filed in the D.C. Circuit Court of Appeals a petition seeking

reversal of a particular waiver (final rule published in

Federal Register, page 53371, Vol. 61, No. 199, Oct. 11,

1996; EPA Air Docket #A-90-28), within 42 U.S.C.

§7607(b)(1)'s 60-day time limit for such petition. The

petition charged that the Vehicle Smog Impact Fee violates

42 U.S.C. §7543(b) (the so-called “California waiver”

provision) and the U.S. Constitution's Commerce Clause

(Art. I, Sec. 8, Clause 3) and Privileges and Immunities

Clause (Art. IV, Sec. 2, Clause 1). The EPA moved for

dismissal of the petition on grounds that the petitioner had

not submitted timely comments to the agency's docket for

this particular waiver (though the petitioner had submitted to

the EPA many complaints about this fee long before the end

of the official comment period for this particular waiver) and

on the grounds that the issues raised by the petitioner were

unrelated to the waiver in question. The court responded by

dismissing the nonconstitutional claim (alleged violation of

42 U.S.C. §7543(b)), but did not at the same time dismiss

the constitutional claims, seemingly accepting the petitioner's

argument that constitutional claims have priority over

Statutory restrictions on judicial review (as discussed below

under the "Second Issue for Review," the court apparently

reversed itself by later rejecting this argument). However,

-4-

the court ordered the petitioner to show cause as to why his

constitutional claims should not also be dismissed, and

allowed the EPA to file an answer. The petitioner, when

filing his brief for show of cause, amended his original

petition by adding a demand for a withdrawal proceeding

(starting with public hearings) against all California waivers,

not just the single waiver originally chalienged by the

petition. The purpose of the amendment was to guarantee a

remedy for the constitutional claims: withdrawing all

California waivers would end California emissions

certification of new cars (as noted above, such certification

is the sole basis of the fee), and thus prevent assessment of

the fee on cars produced in the future. The court

subsequently dismissed the constitutional claims also.

Incidentally, on April 9, 1997, the California Superior

Court, County of Sacramento, in Jordan v. Calif. Dept. of

Motor Vehicles, Case #95AS05228, ruled that this fee

violates the U.S. Constitution's Commerce Clause.

REASONS FOR GRANTING WRIT

APPLICABLE SUPREME COURT

RULE 10 REASONS

Five issues are raised here for review. The first and

fifth issues rely on that part of Supreme Court Rule 10(a)

that states, "a U.S. court of appeals .... has so far departed

from the accepted and usual course of judicial proceedings

higeics as to call for an exercise of this Court's supervisory

power."

The other three issues (the second, third, and fourth

issues) rely on the part of Supreme Court Rule 10(c) which

-5-

states, "... a United States court of appeals ..... has decided

an important federal question in a way that conflicts with

relevant decisions of this Court."

FIRST ISSUE FOR REVIEW

The first issue for review is that the D.C. Circuit

Court of Appeals, by disagreeing with an allegation that was

not disputed by any party or intervenor in the case, "so far

departed from the accepted and usual course of judicial

proceedings ... as to call for an exercise of this Court's

supervisory power.” (Supreme Court Rule 10(a)). The

allegation in question is the petitioner's allegation that the

Vehicle Smog Impact Fee could not exist if no California

waivers had ever been granted.

In a baldfaced falsification, the judgment dismissing

the petition, Order of 6-30-97 in the Appendix, stated, "The

Vehicle Smog Impact Fee and the waiver nominally at issue

in this case are related only in that the fee might not exist but

for the waiver and its predecessors." (emphasis added)

However, the respondent EPA itself admitted that the fee

could not exist but for the waiver and its predecessors,

affirmatively stating,

. If EPA did not grant preemption waivers to

California, there would be no “California cars" ....

Without "California cars," there could be no smog

impact fee, whose existence is premised on the

distinction between “California cars" and "federal

cars." Respondent's Reply to Petitioner's Show of

Cause and Amendent to Petition at 4 (emphasis

added).

Furthermore, the State of California was an

intervenor in this case on behalf of the respondent EPA, and

-6-

California did not claim that anything that was said about the

fee was false. The difference between the terms "might not”

and “could not" is critical in answering the crucial question

of whether withdrawal of all the California waivers would

guarantee some relief for the constitutional claims by

positively preventing assessment of the fee on cars produced

in the future for sale in the U.S.. It is obvious that the court

dishonestly substituted the incorrect term "might not” in

place of the correct term “could not" in order to provide

support for its false finding that "the relationship between the

waiver and the fee is insufficient to allow review of the fee

on petition for review of the waiver.” (Order of 6-30-97 in

Appendix).

The respondent EPA also argued that the suit should

be dismissed on the grounds that the constitutional claims

against the fee could be presented in a State court. The

petitioner countered by arguing that a federal-court remedy

would not necessarily duplicate a state-court remedy, because

the federal-court remedy might be faster than or greater than

the state-court remedy, or might supplement the state-court

remedy. Also, under the principle of concurrent jurisdiction,

federal courts and state courts may both have jurisdiction

over the same question. Anyway, this argument of the EPA

was not discussed in the court's judgment.

Furthermore, this petitioner even disputes the EPA's

claim that -- in order to satisfy the "cases" and

“controversies” requirement of Article III, Sec. 2, Clause |

of the U.S. Constitution -- he must prove that there was a

personal injury-in-fact that is traceable to the respondent's

actions and that is remediable by the court. The courts have

not been consistent in requiring such proof. For a suit under

the Clean Air Act's “citizen suit" section, 42 U.S.C. §7604,

a petitioner's burden of proving such a personal injury is no

greater than a lynch mob's; that is why such suits are called

b, &

"citizen suits." If proof of such a personal injury is an

absolute minimum constitutional requirement for standing to

sue, as claimed by the EPA, then 42 U.S.C. §7604 is

unconstitutional.

SECOND ISSUE FOR REVIEW

The second issue here is the petitioner's contention that

statutory bars to constitutional claims -- whether such bars

are express or implicit -- are barred by the Supremacy Clause

of the U.S. Constitution, Article VI, Clause 2.

As noted above, the petitioner amended his suit by

adding a demand for withdrawal of all California waivers,

not just the single waiver originally challenged by the

petitioner. The court's judgment called this amendment

“untimely,” apparently referring to 42 U.S.C. §7607(b)(1)'s

60-day time limits for petitioning for review of certain

agency actions made under the Clean Air Act as amended

(there was no question as to the timeliness of the filing of the

original petition challenging just the single waiver, as that

filing was made within the time period specified by the EPA

in the Federal Register). This petitioner repeatedly pointed

out that constitutional claims are not subject to statutory time

limits. Thr Supreme Court has said,

.. when constitutional questions are in issue,

the availability of judicial review is presumed, and

we will not take the “extraordinary” step of

foreclosing jurisdiction unless Congress’ intent to do

so is manifested by "clear and convincing” evidence.

Califano v. Sanders, 430 U.S. 99, 109(1976)

There is no “clear and convincing” evidence of

Congressional intent to bar the constitutional claims in the

present lawsuit. Furthermore, even if a statute showed such

intent, this court has ruled in Johnson y. Robison, 415 U.S.

361, 366(1973), that such intent would "raise serious

questions concerning the constitutionality" of the statute

itself. Furthermore, the petitioner asserts that the preceding

Supreme Court rulings grossly understate the case against

statutory bars of constitutional claims. Allowing such a bar

would put the cart before the horse by making statutory law

superior to constitutional law. The Supremacy Clause of the

U.S. Constitution states,

This Constitution, and the laws d the United

States which shall be made in pursuance theredi and

all treaties made, or which shall be made, under the

authority of the United States, shall be the supreme

law of the land ....

(Article VI, Clause 2 of the U.S. Constitution,

emphasis added)

A law which bars -- or attempts to bar -- constitutional

claims is obviously not "in pursuance" of the Constitution,

and thus -- under the Supremacy Clause above -- is not co-

equal with the Constitution as part of the "supreme law of

the land.” In regard to the above excerpt of the Supremacy

Clause, this court has said,

The supremacy of the Constitution as law is

thus declared without qualification. That supremacy

is absolute; the supremacy of a statute enacted by

Congress is not absolute but conditioned upon its

being made in pursuance of the Constitution. And a

judicial tribunal ...... must apply the supreme law

and reject the inferior statute whenever the two

conflict. Carter v. Carter Coal Co., 298 U.S. 238.

296-297 (1935).

THIRD ISSUE FOR REVIEW

As noted above, the judgment dismissing this case,

referring to the petitioner's amendment demanding

withdrawal of all California waivers and presumably

referring to 42 U.S.C. §7607(b)(1)'s 60-day time limit for

petitioning for review of agency action, claimed, “the

amendment is untimely.”

The Congressional report that introduced the

"California waiver" provision (now 42 U.S.C. §7543(b) as

amended) contained the following reassurance:

Implicit in this provision is the right of the

Secretary to withdraw the waiver at any time after

notice and an opportunity for public hearing [if] he

finds that the State of California no longer complies

with the conditions of that waiver. Senate

Report No, 403, 90th Congress -- Ist Session, p. 34.

( Emphasis added by petitioner. The word “if,”

absent in the original, was added for the sake of

clarity. The "Secretary" is the Secretary of Health,

Education, and Welfare, predecessor of the EPA

Administrator in administering the California waiver

provision )

The Supreme Court has ruled that legislative history

is a factor in determining judicial reviewability:

Whether and to what extent a particular statute

precludes judicial review is determined not only from

its express language, but also from the structure of

the statutory scheme, its objectives, its legislative

history, and the nature of the administrative action

involved. iti

467 U.S. 340, 345 (1983) (emphasis added)

-10-

The preceding Senate Report excerpt is a fundamental

part of the legislative history of the "California waiver"

statute, 42 U.S.C. §7543(b): this Senate Report

accompanied the bill that introduced this statute, and this

excerpt discussed the originating Senate committee's

interpretation of the "implicit" meaning of the statute.

Presumably, the only reason that the statute itself did not

expressly state that the Secretary (or the EPA) has the right

to withdraw the waiver “at any time” was that the Senate

committee evidently believed that such a statement would

have been superfluous, since the committee believed that

such right was already "implicit" in the proposed statute.

Furthermore, the right to sue “at any time" for

withdrawal of a California waiver is implicit in the above

Senate Report reassurance, because this Court has ruled that

judicial review of agency action may be denied only upon

"clear and convincing" evidence of Congressional intent to

preclude such review, Abbott Laboratories v. Gardner, 387

U.S. 136, 140-141 (1966), and there is no evidence of such

intent in this case (even supposing that Congress has the

doubtful right to bar review of constitutional claims). The

judgment in the present lawsuit implicitly ruled that this right

to sue “at any time" for withdrawal of California waivers

(established by Public Law 90-148) was implicitly repealed

by 42 U.S.C. §7607(b)(1)'s general time limits (established

by Public Law 91-604; later extended from 30 days to 60

days). However, the U.S. Supreme Court has stated, "The

cardinal rule is that repeals by implication are not favored,"

, ("Posadas"), 296 U.S. 497,

503 (1935), and “the intention of the legislature to repeal

must be clear and manifest," Posadas, ibid.. There is no

evidence in this case of any Congressional intention to repeal

the above-described implied right to sue "at any time” for the

withdrawal of California waivers.

8%.

FOURTH ISSUE FOR REVIEW

42 U.S.C. §7607(b)(2), referring to the 60-day time

limits of 42 U.S.C. §7607(b)(1), shows that those time limits

are intended to apply only to judicial reviews seeking

enforcement:

Action of the Administrator with respect to

which review could have been obtained under

paragraph (1) shall not be subject to judicial review

in civil or criminal proceedings for enforcement.

(from 42 U.S.C. §7607(b)(2), emphasis added)

Indeed, if the preceding sentence was not intended to

restrict the 60-day time limits to enforcement actions, then

the words “for enforcement" in that sentence would be

superfluous; indeed, the entire sentence would then be

superfluous, as applicability of the time limits to challenges

of EPA actions in general is apparent in subsection 42

U.S.C. §7607(b)(1).

The petitioner argued that one reason why those time

limits do not apply here is that he is, in the words of Heckler

y. Chaney ("Chaney"), 470 U.S. 821, 831-832, seeking

review of "affirmative act[s] of approval” rather than seeking

“enforcement.” In Chaney, judicial review under 5 U.S.C.

§702 was denied on the grounds that the challenged agency

inaction was a decision not to “enforce,” and that, with

regard to judicial standing under 5 U.S.C. §702, such

decisions are committed to agency discretion. The Supreme

Court, in explaining why review under 5 U.S.C. §702 was

granted in Citizens to Preserve Overton Park v, Volpe

("Overton Park"), 401 U.S. 402, while being denied in

Chaney, said,

Overton Park did not involve an agency's refusal

to take requested enforcement action. It involved an

42.

affirmative act dg approval under a Statute that set

clear guidelines for determining when approval

Should be given. Refusals to take enforcement steps

generally involve precisely the opposite situation

Chaney, supra, 470 U.S. at 831 (Emphasis added).

For the following reasons, a California waiver is an

“affirmative act of approval" rather than an “enforcement

action": (1) California waiver determinations are not

“enforcement actions” because the EPA has no authority to

enforce California's compliance with the terms of the

waivers, the EPA's sole authority here being to grant, deny

or withdraw the waivers; and (2) a grant of a California

waiver is, in the words of Chaney above, an “affirmative act

of approval under a statute that set clear guidelines for

determining when approval should be given," that statute

being 42 U.S.C. §7543(b).

FIFTH ISSUE FOR REVIEW

The Order of 6-30-97 dismissing this lawsuit -- see

Appendix -- claims that the petitioner's amendment seeking

withdrawal of all California waivers "suffers from the same

defects as the original petition" which sought reversal of a

single waiver, one of those alleged defects being that

"petitioner has not demonstrated that the waiver itself is

unconstitutional." However, the petitioner is not required to

show that the waivers themselves are -- or were --

unconstitutional; the petitioner need only show that EPA's

failure to withdraw the waivers denies relief for his

constitutional claims. The definition of "agency action" in

5 U.S.C. §551(13) from the Administrative Procedures Act

2%.

("APA") includes "denial" of relief and "failure to act." The

petitioner's amended suit charged that the EPA denied relief

for his constitutional claims by failing to withdraw all

California waivers because of the unconstitutional Vehicle

Smog Impact Fee; as noted above, withdrawal of all the

waivers would provide some relief for the constitutional

claims by positively preventing assessment of the fee on cars

produced in the future. Also, 5 U.S.C. §702 of the APA

provides judicial standing not just for persons suffering legal

wrong because of agency action, but also for persons

"adversely affected or aggrieved" by agency action; this

Statute states, in part,

A person suffering legal wrong because of an

agency action, or adversely af fected or aggrieved by

agency action within the meaning of a relevant

Statute, is entitled to judicial review thereof ....

(from 5 U.S.C. §702, emphasis added)

In other words, under 5 U.S.C. §702, the agency

action need not be the direct cause of the injury; this statute

only requires that a petitioner be "adversely affected or

aggrieved” by the agency action. The present petitioner is

"adversely affected" and "aggrieved" by the so-called

California waivers (42 U.S.C. §7543(b)) because these

waivers are the sole basis of the unconstitutional Vehicle

Smog Impact Fee of California.

Under 42 U.S.C. §7607(d)(1)(V) ("such other action

as the Administrator may determine"), the EPA has the

option of applying 42 U.S.C. §7607(d) to California waiver

proceedings, and the EPA has already in this case chosen

that option by invoking 42 U.S.C. §7607(d)(7)(B) (generally

denying judicial review for issues not raised during the

public comment period) against the petitioner's claims.

-14-

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Hence, 42 U.S.C. §7607(d) applies to this suit, and the

preceding two APA provisions, 5 U.S.C. §551(13) and 5

U.S.C. §702, were not among the following APA provisions

generally excluded by 42 U.S.C. §7607(d)(1), indicating tiiat

Congress intended these two preceding APA provisions to

apply to rulemaking under 42 U.S.C. §7607(d):

The provisions of section 553 through 557 and

section 706 of title 5 shall not, except as expressly

provided in this subsection, apply to actions to which

this subsection applies.

(from 42 U.S.C. §7607(d)(1))

Lawrence Fafarman,

Petitioner, pro se

-15-

APPENDIX

WRITTEN OR ORAL COURT OPINIONS, ORDERS,

FINDINGS OF FACT, ETC.

ORDER OF 6-30-97 (final judgment)

U.S. Court of Appeals for the District of Columbia Circuit

Case No. 96-1473, Lawrence Fafarman, petitioner, v, U.S.

Environmental Protection Agency et al., respondents

Date of entry: June 30, 1997

Before: Wald, Rogers, and Tatel, Circuit Judges

Pursuant to 42 U.S.C. 7607(b)(1), this petition was filed

as an original action in the D.C. Circuit Court of Appeals

(therefore there is no district court judgment)

Text:

Upon consideration of the court's order to show

cause filed April 25, 1997, the response thereto and

amendment to the petition for review, the reply, the

unopposed motion for leave to file a reply to the

reply, and the lodged reply to the reply, it is

ORDERED that the motion for leave to file a

reply to the reply be granted. The Clerk is directed

to file the lodged pleading. It is

FURTHER ORDERED that the order to show

cause be discharged. It is

FURTHER ORDERED that the amendment be

dismissed. The amendment is untimely and suffers

from the same defects as the original petition,

discussed below. It is

-la-

FURTHER ORDERED that the remainder of

the petition for review (that is, the constitutional

claims) be summarily denied. The merits of the

parties are so clear as to warrant summary action.

See Cascade Broadcasting Group Lid. v. FCC, 822

F.2d 1172, 1174 (D.C. Cir. 1987) (per curiam). The

Vehicle Smog Impact Fee and the waiver nominally

at issue in this case are related only in that the fee

might not exist but for the waiver and _ its

predecessors. However, petitioner has _ not

demonstrated that the waiver itself is unconstitutional,

and the relationship between the waiver and the fee is

insufficient to allow review of the fee on petition for

review of the waiver.

The Clerk is directed to withhold issuance of the

mandate herein until seven days after disposition of

any timely petition for rehearing. See D.C. Cir Rule

41.

Per Curiam

s/(judges' initials)

Denial « f rehearing

Date of entry: Aug. 28, 1997

Text:

Upon consideration of petitioner's petition for

rehearing filed July 22, 1997, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: s/Robert A. Bonner

Robert A. Bonner, Deputy Clerk

Denial of rehearing en banc

Date of entry: Aug. 28, 1997

Text:

Upon consideration of petitioner's Suggestion

for Rehearing In Banc, and the absence of a request

by any member of the court for a vote, it is

ORDERED that the suggestion be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: s/Robert A. Bonner

Robert A. Bonner, Deputy Clerk

LAWS AND CONSTITUTIONAL PROVISIONS

42 U.S.C. §7543 State Standards

(a) Prohibition No State or any political subdivision

thereof shall adopt or attempt to enforce any standard relating

to the control of emissions from new motor vehicles or new

motor vehicle engines subject to this part. No State shall

require certification, inspection, or any other approval

relating to the control of emissions from any new motor

vehicle or new motor vehicle engine as condition precedent

to the initial retail sale, titling (if any), or registration of

such motor vehicle, motor vehicle engine, or equipment.

(b) Waiver

(1) The Administrator shall, after notice and opportunity

for public hearing, waive application of this section to any

State which has adopted standards (other than crankcase

emissions standards) for the control of emissions from new

motor vehicles or new motor vehicle engines prior to March

30, 1966, if the State determines that the standards will be,

a

in the aggregate, at least as protective of public health and

welfare as applicable Federal standards. No such waiver

shall be granted if the Administrator finds that --

(A) the determination of the State is arbitrary and

capricious,

(B) such State does not need such State standards to

meet compelling and extraordinary conditions, or

(C) such State standards and accompanying

enforcement procedures are not consistent with section

7521(a) of this title.

9 See

(California is the only state satisfying the preceding

March 30, 1966 requirement, hence this waiver is often

called the “California waiver")

COMMERCE CLAUSE OF U.S. CONSTITUTION

(art. I, sec. 8) The Congress shall have power --

(clause 3) To regulate commerce with foreign nations, and

among the several States, and with the Indian tribes.

PRIVILEGES AND IMMUNITIES CLAUSE OF THE

U.S. CONSTITUTION

(Art. IV, Sec. 2, Clause 1) The citizens of each State

shall be entitled to all privileges and immunities of citizens

in the several States.

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SUPREMACY CLAUSE OF THE

U.S. CONSTITUTION

(Art. VI, Clause 2) This Constitution, and the laws of

the United States which shall be made in pursuance thereof;

and all treaties made, or which shall be made, under the

authority of the United States, shall be the supreme law of

the land; and the judges in every State shall be bound

thereby, any thing in the Constitution or laws of any State to

the contrary notwithstanding.

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