Amicus Curiae Brief — Train v. Natural Resources Defense Council, Inc.

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PLD EEE OAL AN SBE ARE LVNT SE CMR SIE ANOS RMD Renan Na Bg mk

No. 73-1742 Supreme Court, U. S

FILLED

)

NOV 22 1974

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

RESPONDENT

AMICUS CURIAE BRIEF OF THE STATE OF TEXAS

JOHN L. HILL

Attorney General of Texas

LARRY F. YORK

First Assistant Attorney General of Texas

PHILIP K. MAXWELL

Assistant Attorney General of Texas

DOUGLAS G. CAROOM

Assistant Attorney General of Texas

Attorneys for Amicus .

TABLE. OF CONTENTS:

Page

CITATIONS i

|. INTEREST OF AMICUS CURIAE ?

I. ARGUMENT AND AUTHORITIES ?

(a) Introduction 2

(b) The Fifth Circuits construction — of

» 1857¢-5(1) as the exclusive Means ol

granting Variances under the Clean Air Act

deprives the states of flexibility necessary

to implement their plans and is contrary to

Congressional intent. 4

(c) Section 1857¢-5(a) | 3) authorizes the Ad-

ministrator of EPA to allow state Variance

programs. 6

I. CONCLUSION 9

CITATIONS

CASES: Pages

Bank v. Chicago Grain Trimmers Assn, Inc.,

390 U.S. 459 (1968) a)

Commissioner v. Brown,

380 U.S. 563 (1965) nnn 7

Natural Resources Defense Council v. Environmental

Protection Agency,

489 F.2d 390 (Sth Cir. 1974) 749

Natural Resources Defense Council v. Environmental

Protection Agency,

494 F.2d 519 (2nd Cir. 1974) oo. «64

Natural Resources Defense Council v. Environmental

Protection Agency,

483 F.2d 690 (8th Cir. 1973) _. 4

Natural Reseurces Defense Council v. Environmental

Protection Agency,

478 F.2d 875 (Ist Cir. 1973) ~ . 4.6

Richards v. United States, SO

369 U.S. 1 (1962) ou a 4

Udall v. Tallman,

380 U.S. 1 (1965) tiene 4

STATUTES:

42 U.S.C. » 1857(a)(3) (1969) 2.6

42 U.S.C. » 1857c-S(a) (Supp. 1974)

» 1857¢-5(a)(2)(A) (Supp. 1974) 5

’ 1857c-5(a)(3) (Supp. 1974) 5.9

12 U.S.C. » 1857c-5(f) (Supp. 1974). 4.5.6

- U.S.C. © 1857h-5(b)(1) (Supp. 1974) 10

EX. Rev. Civ. STAT. ANN. art. 4477-5, » 3.21 (Supp.

1974) 2,3

OTHER AUTHORITIES CITED:

THE AMERICAN HERITAGE DICTIONARY OF THE ENG-

LISH LANGUAGE (1969)

WEBSTER’S THIRD INTERNATIONAL DICTIONARY (1969)

vb

No. 73-1742

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM. 1974

RUSSELL F. TRAIN. ADMINISTRATOR. UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, PETIIIONTR

VS.

NATURAL RESOURCES DEFENSI COUNCIL, INC...

RESPONDENI

4

AMICUS CURIAE BRIEF OF THE STAT! OF TEXAS

INTEREST OF AMICUS CURIAE

The State of Texas. through the Texas Air Control

Board. is responsible for implementing the tederal Clean

Air Act in Texas. The Board. pursuant to the provisions

of the Fexus Clean Air Act. utilizes a variance procedure

similar wo the Georgia variance procedure disallowed by

the Fifth Cireuit in the instant case. Under this procedure

the Board has issued a number of variances allowing ex-

tensions of compliance deadimes fer various lengths of

ume up to May 31. 1975. The BoardNgas received notice

under’ the Clean Air Act citizen suit: provision that. the

Validity of these Variances will be challenged on the basis

of the Fitth Circuit's decision.’ Therefore, the State of

Texas is critically concerned with the Court’s resolution

of this case.

ARGUMENT AND AUTHORITIES

(a) Introduction

The Clean Air Act. 42 U.S.C. » 1857¢-5(a), provides

that the states shall submit implementation plans to the

Environmental Protection Agency’ which provide for the

maintenance. implementation and enforcement of the na-

tional primary ambient air quality standards “as expedi-

tiously as practicable”. Pursuant to EPA’s implementation

plan regulations. the Texas Air Control Board submitted

a plan that called for‘a compliance date of December 31.

“A copy of this notice is provided as Appendix I.

1973. The plan clearly indicated that the compliance date

was selected with the understanding that ie smail number

of sources Would be unable to achieve compliance by that

date. These seurces. it was understood. woule umize the

Variance procedures contained in the Pexas Clean Ai Net.

which Was submitted and approved as a part of the state's

implementation plan.

It is important. in evaluating the arguments presented

by the amicus and the Fitth Circuits decision, to under-

stand the actual operation ci the variance procedure in

Texas. To begin with. the Texas Clean Air Act authorizes

Variances in stricly limited situations. Only it the denial

of a variance would result in (a) the arbitrary and unrea-

sonable taking of property or (b) the practical closing of

a lawful business can a variance be ined, These limited

statutory provisions account for the extremely small num-

ber of variances currently outstanding 1 in the State of Texas.

Of approximately 3.000 ‘air pollution sources in Texas.

only thirteen have been Issued variances. euler these

variances, based upon an administrative record alter ex-

°Section 2 431 “of the Texas Clean Air Act. Trex. Rev. Civ. Stat

ANN. art. 4477-5 (Supp. 1974), provides:

The board may grant individual variances beyond the limitations

presenbed in “this Act oF in the rules and regulations of the

board whenever it as found. upon presentation’ of adequate

proof, that compliance with any provision of this Act, or any

rule or reguiation of the board. will result in an arbitrary and

unreasonable taking of property. or in the pragiieal closing and

chmination of any lawtui business. occupation or activity, in

either case without sufficient corresponding benefit or advan-

tage to the people . . .

oe

4

haustive public hearings, generally impose stringent interim

compliance schedules.

Texas therefore believes that the position taken by the

First. Second, and Eighth Circuit Courts of Appeals and

by EPA, allowing the granting of state variances in the

period before the attainment date fer national ambient air

standards. achieves the goals of Congress and does so “as

expeditiously as practicable”.

(b) The Fifth Circuit's construction of § 1887c-5(f) as

the exclusive means of granting variances under the

Clean Air Act deprives the states of flexibility neces-

« sary to implement their plans and is contrary to Con-

gressional intent.

In construing the pertinent provisions of the Clean Air

Act involved in this case, it is important that the meaning

and intent of the whole statute be considered. As this Court

stated in Richards v. United States:

e We believe it fundamental that a section of a statute

should not be read in isolation from the context of the

whole Act. and that in fulfilling our responsibility in

interpreting legislation “we must not be guided by a

single sentence or member of a sentence, but [should }

look to the provisions of the whole law, and to its ob-

ject and policy.” 369 U.S. 1, 11 (1962)

Natural Resources Defense Council v. Environmental Protection

Avency, 494 F.2d S19 (2nd Cir, 1974); Natural Resources De-

fense Council vy. Environmental Protection Agency, 483 F.2d 690

(Sth Cir, 1973): Natural Resources Defense Council v. Envirort-

mental Protection Agency, 478 F.2d 875 (ist Cir. 1973).

ae ee

As shown below, the Fifth Circuit’s mechanistic construc-

tion of » 1857c-5(f) vesting the Administrator of EPA

with the exclusive authority to grant extensions of. com-

pliance deadlines. does violence to the gouls and overall

operation of the Clean Air Act.

First, the Act places the duty of controlling air pollution

at its source not on the Administrator, but squarely on the

states. $2 U.S.C. ¢ 1857(a)(3) specifically states that “the

prevention and control of air pollution at its source is the

primary responsibility of the states and local governments”:

the federal role, given a sound and well administered im-

‘plementation plan, is essentially one of oversight. Consistent

with this policy of state primacy, the Act requires the states.

not the Administrator, to prepare and implement a plan

to achieve the national ambient air quality standards es-

tablished by EPA. Section 1857¢-5(a)(2)(A) allows the

state considerable flexibility in the attainment of these stan-

dards. The state is allowed to pick any date. up to three

years after the plan’s approval—i.e.. before May 31. 1975

-— which will achieve compliance with national primary

standards “as expeditiously as practicable.” As noted ear-

lier, Texas chose December 31. 1973. as the compliance

date tor the regulations contained in its implementation

plan. concluding that all but a handful of the 3.000 sources

in the state could comply by that date and that the non-

compliant few would be placed en abatement schedules via

the state variance procedure and submitted to EPA as re-

visions or modifications of the plan.

po, a

It the procedure mandated by 42 U.S.C. » 1857c-5(f)

were the only means of issuing variances from the state

selected compliance dates in state implementation plans,

not only would the Act’s policy of state primacy in air

pollution regulation be violated. but the Congressional goal

of achieving the national ambient air standards as expedi-

tiously as practicable would be frustrated. A state, unable

to impose compliance schedules through a variance pro-

cedure on certain individual sources, might well postpone

the complianeé deadline tor all sources. Congress surely

cannot have intended such an anomalous result, yet this ts

precisely the result fostered by the decision of the Fifth

Circuit. The First Circuit. by contrast, recognized the prob-

lem and concluded quite correctly that the Act

“ . . permittfec) a state to ate eas emission

limitations now, subject to individud}-exemptions if

practicability warrants: otherwise it may_be forced to

adopt less stringent limitations in order to accommo-

date those who. notwithstanding reasonable efforts,

are us yet unable to comply.”

5 ie . ~

. 478 F.2d at 887.

(c) Section 18§7ce-5(a)(3) authoriz es the Administra-

tor of EPA to allow state variance’ programs.

Section 1857¢-5(a) (3) provides that the Administrator

of the Environmental Protection Agency “shall approve

any revision of an implementation plan applicable to an air

quality control region if he determines that it meets the re-

quirements of paragraph (2) and has been adopted by the

state after reasonable notice and public hearings.” (Em-

lia,

phasis added.) The provisions in paragraph (2) are tiose

same general requirements laid out for the state impleraen-

tation plan.

The plain language of this section would seem to autho-

rize the Administrato: to approve state-issued variances as

revisions to the implementation plan as long as they other-

Wise complied with the Act. Such variances, imposing com-

pliance schedules different from that generally requirec in

the implementation plan as originally submitted to and ap-

proved by EPA, would obviously constitute “changes” or

“modifications” of the plan, terms which are commoniy

equated with the word “revision” .' .

The Fifth Circuit arbitrarily rejected this common sense

approach and, without citation cf authority. blandly con-

cluded that “[a] revision is a change in a generally applic- *

able requirement... [while a} variance [is) a change in

the application of a requirement to a particular party.” +89

F.2d at 401. While this distinction may be “familiar and

clear” to the Fifth Circuit, your amicus finds it remarkecly

novel. Not only does it fail of any linguistic or semantical

sense, it does not particularly serve the purposes of the Act.

‘See definitions of “revise” and “revision” in WeBsTER’s THD

INTERNATIONAL DICTIONARY (1969) at p. 1944. and in THe Amrti-

CAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (1959) at

p. 1112.

This Court has held that in the absence of persuasive reasons to

the contrary, the words of a statute will be given their ordina’y

meaning. Bank v. Chicago Grain’ Trimmers Ass'n, Inc., 390 U.S.

459, 465, (1968) Commissioner v. Brown. 380 U.S. 563 (1965) (de-

parture from ordinary meaning justified only to avoid absurd results).

pak el

Consider the following hypothetical: A state has conclud-

ed that one of only two sources of a given pollutant in a giv-

en air quality control region in the state cannot meet the gen-

eral compliance deadline set forth in the implementation

plan approved by EPA, but that the other source can. The

state has also concluded, however, that within six months

the non-compliant source can install the necessary abate-

ment equipment to meet the regulation and that the com-

bined contribution of the two sources in the meantime will

not result in a violation of the EPA-set ambient air standard

for that pollutant in that region. The state, it would seem,

shovt of completely shutting the plant down, with the ac-

conipanying economic hardship and dislocation, has twe

alternatives: (a) it can issue a variance to the non-com-

pliant source requiring that it install the necessary equip-

ment and be in compliance in six months; or (b) it can

redraw the regulation itself in such a fashion that the non-

compliant source can comply. This could be done, for ex-

ample, by dropping the sampling technique which causes

the source to read in violation of the regulation, leaving in

effect only those sampling procedures which do not yield

violations. Alternatives (a) and (b) would each effective-

°A convenient example is the “opacity” sampling procedure for meas-

uring the emission of particulates. Under this procedure a trained

ob:erver “reads” the plume coming from. a source to see to what

pe-centage degree it obscures visibility. The test is designed to control

easily respirable and hence more dangerous small particles of nat-

ter. Many industries contend that, while they cannot comply with

opacity measurements, they can meet the other two common tests

of particulate emission—in stack concentration and property line con-

centration. These methods, however, rely on the weight of the parti-

cles and thus do not effectively mect the small particle problem.

ly exempt the non-compliant source, but only (a) would

violate the Fifth Circuit's rationale and hence require re-

jection by the Administrator. Alternative (b) would seem-

ingly pass Fifth Circuit muster, since it is a “change in a

generally applicable requirement.” 489 F.2d at 401. As

long as alternative (b) otherwise complied with ¢ 1857c-

5(a)(3), it would be approvable thereunder.

In short, the Fifth Circuit's “distinction” between revision

and variance is. in the true sense of the phrase. a distinction

without a difference.” What really matters is not so much

the form in which the state deals with the problems that

arise in the practical administration of its implementation

plan, but rather whether the method chosen will achieve

compliance “as expeditiously as practicable” as required by

the Act.

3

CONCLUSION

The decision of the Fifth Circuit is without foundation

in law or logic. Not only does it contravene the Clean Air

Act’s policy of state primacy in the regulation of air pollu-

tion at its source, discourage the states from setting carly

dates for compliance with their implementation plans. and

subvert the ordinary meaning of the words Congress chose

in writing the Act, the decision also is in direct conflict with

* This is, of course. not quite accurate. There is a substantial. deleteri-

ous difference between alternatives (a) and (b) in the hypothetical

discussed in the text. While alternative (a). the variance given to the

one non-compliant source, ensures that the compliant source main-

tains the low level of emissions required by the general regulation,

alternative (b). the regulation amendment method, permits the com-

pliant source to increase emission levels.

_~9—

the interpretation placed on the Act,by the agency entrusted

,with its enforcement. As this Court noted in Udall vy, Tall-

man, 380 U.S. 1 (1965), an agency’s interpretation of the

Statute it administers is entitled to great weight and should

be respected by the courts if reasonable. As Texas has

shown, allowing the states to deal with isolated instances

of non-compliant sources through a variance procedure,

with EPA exercising its rightful role as arbiter of whether

amy given variance/revision meets the requirements of the

Act. is an eminently workable and reasonable construction

of the Act. ~

The decision of the Fifth Circuit should be reversed.

Respectfully submitted,

JOHN L. HILL

Attorney General of Texas

DOUGLAS G. CAROOM

Assistant Attorney General of Texas

5

P. O. Box 12548, Capitol Station

Austin, Texas 78711

AC 512-475-4143

Attorneys for Amicus State of Texas

‘It should be noted that the Administrator's approval of any “revi-

sion” of a state implementation plan can be subjected to judicial

review under 42 U.S.C. § 1857h-5(b) (1).

tin

PROOF OF SERVICE

l, Philip K. Maxwell. one of the attorneys for the State

of Texas, amicus herein, and a member of the Bar of the

United States Supreme Court. hereby certify that. on the

22nd day of November. 1974. 1 served copies of the fore-

going briet to the Supreme Court of the United States and

on the several parties Unereto as tollows:

1. On Russell E. Train. by mailing a copy in a duly

addressed envelope, with air mai! postage prepaid. to Robert

H. Bork, SolicitorsGeneral, Wallace H. Johnson, Assistant

Attorney General, Edmund W. Kitch. Assistant to the Solic-

itor General, Edmund B. Clark. and Henry J. Bourguinon,

Attorneys, Department oi Justice, Washington, D.C. 20530.

2. On the Natural Resources Defense Coungil. by mail-

ing a copy in a duly dddressed envelope. with air mail post-

age prepaid, to Richard E. Ayres. Natural Resources De-

fense Council, Inc., 1710 N Street, N.W.. Washington,

D.C. 20036.

>»

BU Titt

RRR ERR RRR RE ARERR RRR ERR ERE TERRE RRR EERE ERE EHH RAE

That

SRAROW £. GORMAN 4

#4 BAY

BAYTOWw™,

and cther persons,

eitizens oO: tite United States cf America and State of Texas,

to subsection 3094(5) of the Clean Air’ Act (Sec. 12,

Public Law 91-604; 84 Stat. 1706, 42 U.S.C. §§ 1857.et sez) end

force

Courts as follow:

ambient

of 1979.

,

nological

Texas Clean (Article 4477-5, sec. 3.13 YACS).

-II.

~ That, the “exas Air’Control Board tas granted variances

from the partic

rules, re

prescribed by te federal Clean Aire“Act.

That certain corporations d5ing bubiness in the Stabe

(the nares of which are attiched herito az arpondix A} fren end

PA Na a a

after January 1, 1974, and each and every Gay thereafter have

’

tere

emitted and continue to emit air Contaminancs into the atnoss

SO as to violate the emission standards and limitations reguirei

by the Texas Clean Air Act and Kules anc: Regulations adopted by

the Texas Air Control Board, under variances issued by the Texas

Air Control Board. And that said emissions into the etnosrhere

@re unlawful. ’

if Iv.

That under the case of the Satural

v. Environ-sntal

Feb. 8, 1974), the conduct of the Administret

Board, and above mentioned corporations

Attorney fo2r Sharon £. Gorman