# Amicus Curiae Brief — Train v. Natural Resources Defense Council, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0401%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 421 U.S. 60 ## Text | 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0401%3A04. Public record. Not legal advice.