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

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DEC 27 157%

ICHAEL ROBAK JP_ceesy

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In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-1742

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

VS.

NATURAL RESOURCES DEFENSE COUNCIL, INC.,

Respondent.

AMICUS CURIAE BRIEF OF STATE OF MISSOURI

JOHN C. DANFORTH

Attorney Genera:

WALTER W. Noworny, JR.

Assistant Attorney General

Dan SUMMERS

Assistant Attorney General

Supreme Court Building

Jefferson City, Missouri 65101

(314/751-3321)

Attorneys for Amicus Curiae

F. L. Menpennate, Ivc., 926 Cherry Street, Kansas City. Mo. 64108, 421-3020

INDEX

Interest of Amicus Curiae ..................0.ccccsseseceeeeseeneeeeres

Argument—

Congress did not intend to foreclose the states from

granting variances from their respective imple-

mentation plans where such variances would not

interfere with the attainment and maintenance of

national ambient air quality standards

Conclusion

Citations

CASES

Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3d Cir.

DED cece pnnranceiies cane saeeeadiesmecsoicpsapeerexeaeexnnienseuaonneeenieceeacs

Natural Resources Defense Council, Inc. v. Environ-

mental Protection Agency, 478 F.2d 875 (1st Cir.

1973)

Natural Resources Defense Council, Inc. v. Environ-

mental Protection Agency, 483 F.2d 690 (8th Cir.

1973) F

Natural Resources Defense Council, Inc. v. Environ-

mental Protection Agency, 494 F.2d 519 (2d Cir.

Be tcasainlepn seo Mianlchted esting ltnigancsicietpcede Bate ates

Natural Resources Defense Council, Inc. v. Environ-

mental Protection Agency, No. 72-2145 (9th Cir.,

Nov. 11, 1974)

Union Electric Company v. Environmental Protection

Agency, No. 74-1614 (8th Cir., petition filed August

19, 1974)

11

Il

STATUTES AND REGULATIONS

42 U.S.C. $18570-4(D) cocccceccccsssseevsseevessseesevesevevessseveseesssesseeeses 1,7

42 U.S.C. $1857c-5(a) (2) (A) eeecieceeeeeeseee ee 1,4, 11

42 U.S.C. $1857¢-5(£) occ. cece ee 5, 6, 8,9, 11

70 ORK ORNS E10) (: Os 9, 10

Section 203.110, RSMo 1969 .........c..c.ccccsscsscsesssssssesesssesneeees 2

rT G8 2; a) A. ee ace eae ene 4,11

40 CAFLR. $50.11 (gg) 2 ccccsccccssssececsssssesesssssesevsseessssseesseseees — 4

40 C.F.R. $51.15(d) 4

40 C.F.R. $51.32(f) 4

40 C.FLR. Part 52. occ coco ccececcece cca ceeeeeeeeveeeeceseeeseeeess 7

MISCELLANEOUS

Comment, Variance Procedures Under The Clean Air

Act: The Need For Flexibility, 15 Wm. and M. L.

Rev. SZ4 C1GTS) oncccciccccenciceeiccssnseioscouccnnciseneccoenonasestecaeucnenses 9

EPA, National Strategy For Control of Sulfur Oxides ,

From Electric Power Plants, (Washington, D.C.,

Aa CC | ce rer |)

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-1742

RUSSELL E. TRAIN, ADMINISTRATOR, UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

vs.

NATURAL RESOURCES DEFENSE COUNCIL, INC..

Respondent.

AMICUS CURIAE BRIEF OF STATE OF MISSOURI

INTEREST OF amncut CURIAE

This case presents the question whether under the

Clean Air Act, 42 U.S.C. $1857, et seqg., variances from par-

ticular requirements of the state implementation plans are

allowed, or whether Section 110(f) of the Act, 42 U.S.C.

$1857c-5(f), is the only vehicle for deferring the applica-

tion of a standard, limitation, time schedule or other re-

quirement of a state implementation plan.’ The State of

1. 42 U.S.C. §1857c-5(f) authorizes the Governor to apply

for, and EPA to approve, a postponement of any requirement of

an applicable implementation plan for a. period of one year

upon certain conditions. This postponement can be requested

only up to the date on which a source or class of sources is re-

quired to meet the applicable requirement.

Section 110(e) of the Act, 42 U.S.C. §1857cei(e), provides for

an exteusion of the date for attaining a national primary ambient

air quality standard for a period of up to two years beyond the

three-year date specified by 42 U.S.C. §1857c-5(a) (2) (A) (i).

However, 42 U.S.C. §1857c-5(e) is not at issue in this cuse, as an

application for such extension can be made only at the time a

state implementation plan is submitted. The deadline for sub-

mission of such plans was May 31, 1972.

Missouri, through the Missouri A‘r Conservation Com-

mission, is responsible for formulating and enforcing its

implementation plan. The state’s Air Pollution Control

Law, Sections 203.010 to 203.195, RSMo 1969, as amended,

contains a variance procedure similar to that of the State

of Georgia, and almost identical to iad of amicus curiae,

State of Texas.”

2. §203.110:

“1. The commission may grant individual. variances be-

yond the limitations prescribed in this chapter whenever it is

found, upon presentation of adequate proof, that compliance with

any provision of this chapter or any rule or regulation, standard,

requirement, or order of the commission or executive secretary

will result in an arbitrary and unreasonable taking of property

or inthe practical closing and elimination of any lawful business,

occupation or activity, in either case without sufficient corres-

pending benefit or advantage to the people; except, that no vari-

ance shall be granted where the effect of the variance will permit

the continuance of a health hazard; and except, also, that any

variance so granted shall not be so construed as to relieve the

person who receives the variance from any liability imposed by

other law for the commission or maintenance of a nuisance.

2. In determining under what conditions and to what extent

a variance may be granted, the commission shall exercise a wide

discretion in weighing the equities involved and the advantages

and disadvantages to the applicant and to those affected by air

contaminants emitted by the applicant.

3. Variances shall be granted for such period of time and.

under such terms and conditions as shall be specified by the com-

mission in its order. The variance may be extended by affirma-

tive action of the commission.

4. Any person seeking a variance shall do so by filing a

petition for variance with the executive secretary. The executive

secretary shall promptly investigate the petition and make a rec-

ommendation to the commission as to the disposition thereof.

Upon receiving the recommendation of the executive secretary,

if the recommendation is against the granting of a variance, a

hearing shall be held if requested as provided in section 203.100.

If the recommendation of the executive secretary is for the grant-

ing of a variance, the commission may do so without a hearing;

except, that upon the petition of any person aggrieved by thé

granting of the variance, a hearing shall be held as provided in

section 203.100. In any hearing under this section, however, the

burden of proot shail be on the person petitioning for a variance.

5. Upon failure to comply with the terms and conditions of

any variance as specified by the commission, the variance may

(Continued on following page)

In addition to the general concern of the State of

Missouri that variance procedures be upheld under the

Clean Air Act, and that those persons who hold variances

from the Missouri Air .Conservation Commission not be

faced with enforcement action because they shave in good

faith relied on the variances granted them, Missouri has

another interest in the instant case. There is presently

pending in the United States Court of Appeals for the

Eighth Circuit a petition by the Union Electric Company.

the major supplier of electric power for the St. Louis area»

for review of the sulfur dioxide regulations of the Missouri :

implementation plan.* The State of Missouri has inter-

vened in the Union Electric case, and has presented the

Court of Appeals with the suggestion that since the Mis-

souri Air Conservation Commission has not passed on

Union Electric’s applications for variances from the sulfur

dioxide regulations, the petition should be dismissed. or

held in abeyance, until the state has the opportunity to do

so.' If this Court were to affirm the decision of the Court

of Appeals below, Missouri would of course be foreclosed

from making this contention.

Footnote Continued—

be revoked or modified by the commission after a hearing held

upon not less than thirty days’ written notice. The notice shall

be served upon all persons who will be subjected to greater re-

strictions if the variance is revoked or modified, or who have

filed with the executive secretary a written request for notifi-

cation.”

3. Union Electric Co. vy. Ervironmental Protection Agency.

No. 74-1614, 8th Cir., petition fied August 19, 1974. Ora! argu-

ment on the question of jurisdiction will be heard on January

10, 1975.

4. This position is bused on language in Getty Oil Co. v.

Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), which indicates that

the Courts of Appeals may not review a state regulation if the

state has not yet passed on a variance request.

ARGUMENT

Congress Did Not Intend to Foreclose the States

from Granting Variances from Their Respective Im-

plementation Plans Where Such Variances-Would Not

Interfere with the Attainment and apnea "a of Na-

tional Ambient Air Quality Standards.

The basic question before this Court is whether the

Clean Air Act leaves room for the states to grant certain

types of variances from their respective implementation

plans. Counsel for the State of Missouri trusts that the

parties to this case will present the relevant case law and

statutory citations, and, therefore, Missouri has no need

to present a lengthy brief on the subject. However, Mis-

souri is concerned that the opinion of the Court of Appeals

for the Ninth Circuit be presented to the Court as the

correct construction of the Clean Air Act.

That opinion, Natural Resources Defense Council, Inc.

v. Environmental Protection Agency, No. 72-2145 (9th Cir.,

Nov. 11, 1974), held that minor variances (those variances

which will not interfere with the attainment and mainte-

nance of national ambient air quality standards) could be

granted even beyond the date specified by 42 U.S.C.

$1857c-5(a} (2) (A) (i). This opinion goes beyond the posi-

tions taken by the First, Second and Eighth Circuits,’ and

beyond the postition now taken by EPA.* Missouri sub-

5. Natural Resources Defense Council, Inc. v. Environmental

Protection Agency, 478 F.2d 875 (1st Cir. 1973); Natural Re-

sources Defense Council, Inc. v. Environmental Protection Agency,

483 F.2d 690 (8th Cir. 1973); Natural Resources Defense Council,

Inc. v. Environmental Protection Agency, 494 F.2d 519 (2d Cir.

1974).

6. 40 C.F.R. §§51.11(g), 51.15(d), 51.32(f). Prior to the 1st

Cir. Opinion, EPA had taken the position that variances which

did not interfere with the attainment and maintenance of na-

tional standards would be permitted as revisions of the imple-

mentation plan during both the pre-attainment and post-attain-

ment periods. 40 C.F.R. §§51.6, 51.32(f).

5

mits that the proper construction of the Clean Air Act

would allow minor variances (those variances not inter- —

fering with attainment and maintenance of national stan- ©

dards) both before and after the mandatory attainment —

date, and that the decision whether to grant such variances ©

is left by the Act to the respective states.

It is the position of the State of Missouri that 42 U.S.C. —

$1857c-5(f) was not intended by Congress to be the exclu-

sive means of granting relief from a particular requirement ~

of an implementation plan, where a source of emissions |

cannot comply with the plan because of technological in-

feasibility. This position is based on the proposition that

the attainment and maintenance of national ambient air

quality standards, and not emission limitation, is the basic

goal of the ,Act, and that under the Clean Air Act, as

amended, the primary responsibility for attainment and

maintenance of the national standards still resides in the

states. These propositions are adequately supported by a

reading of the Clean Air Act as a whole, rather than nar-

rowing the inquiry to an analysis of the specific language

of 42 U.S.C. §1857ce5(f) alone. The United States has

thoroughly covered these points in its brief, and Mi:souri

will not burden the Court with a repetition of these argu-

ments. Instead, Missouri will argue that the rationale of

the Ninth Circuit should be adopted by this Court.

As discussed above, the Ninth Circuit has held that

the Clean Air Act does not prohibit the states trom grant-

ing variances from particular requirements of implementa-

tion plans, where such variances will not interfere with the

attainment and maintenance of ambient air quality stan-

dards. The State of Missouri believes that the Ninth Cir-

cuit position is the only logical one to take. when the practi-

cal effects of the other positions are considered.

J

The effects of the other positions before the Court can

readily be seen from the following situation. A large elec-

tric utility, supplying 99 percent of the electric power to a

metropolitan area of 1.8 million people, is in violation of

specific emission limitations (set by state regulations) at

the mandatory attainment date. However, the national

ambient air quality standards for that pollutant are not

being exceeded for the metropolitan area. The utility

finds that it is unable to apply those emission control tech-

niques required to bring its emissions of the particular

pollutant within state regulation limitations, because the

technology for such controls has not been developed, or

because shortages of fuels and/or control equipment make

compliance with the state emission limitation impossible

at the present time.’

- Faced with this situation, the utility has a choice. Un-

der the positions taken by the United States and Natural

Resources Defense Council, Inc., it can either continue to

operate in violation of the emission limitation and face

large fines for such violations, or it can shut down its oper-

ations, thereby causing a substantial, even massive dis-

ruption of the regional economy and a threat to the public

welfare. We submit that Congress did not intend such a

result and that the Clean Air Act cannot be read to man-

date such a result.

Accepting the proposition that the regulatory scheme

of the Act is designed to force the development of new air

7. Although at the moment hypothetical, we believe that

this set of facts could exist in Missouri on June 1, 1975, with re-

spect to sulfur dioxide emission limitations. The hypothetical

assumes that the one-year postponement provided in 42 U.S.C.

§1857c-5(f) was not taken advantage of. The same situation

could well exist on June 1, 1976, after the one-year postponement

had — even if the postponement were applied for and

granted. ;

~

pollution control technology, Congress could not have in-

tended that substantia] economic disruption should occur.

where the national ambient air quality standards are being

met and maintained, simply to achieve an emission limita-

tion which was ambitiously set at a level more stringent

than necessary. The national ambient air quality stan-

dards, by definition, are set at a level which will protect

the public health and welfare.~ If the public health and

welfare are being adequately protected in an air control

region, then it is illogical to enforce a more stringent

emission limitation against a source which cannot comply

with it,” especialiy when economic disruption detrimental

to the public welfare will result.

Under the construction of the Clean Air Act, advanced

by the parties to the case at bar, there is almost no flexi-

bility in the Act to meet the exigencies of a situation Where

technology has not advanced as rapidiy as anticipated in

1970. -With the mandatory attainment date fast approach-

ing,'” there are still technological hurdles to be crossed in

order to effectively contro! certain pollutants such as the

a

8. 42 U.S.C. §1857c-4(b).

9. To some extent we are also talking about a situation

where compliance, with an emission limitation more stringent

than necessary to meet national standards is technologically feasi-

ble, but economically infeasible. In some situations the cost of

compliance could reach a point where it would have an economie

impact outweighing the benefit to the public from extra incre-

r.ents of emission reduction. In such cases. we submit that the

states should have the authority and responsibility to strike the

balance between costs and benefits.

10. The mandatory attainment date for national primary

ambient air quality standards in most states is May 31, 1975.

40 C.F.R. Part 52. In addition, a number of states must also meet

secondary standards by that date. 40 C.F.R. Part 52

photochemical oxidants.'' And clean fuels are in shorter

supply than anticipated in 1970. There seems to be little

chance that some of the technological and resource supply

problems will be resolved by mid-1975, or even mid-1976.

Yet the: positions of the First, Second and Eighth Circuits

are that no later than mid-1976 (for most states) all

sources must comply with emission limitations, even if na-

tional standards have been met and are being maintained.

The position of the Fifth Circuit is, of course, even more

restrictive. .

.Missouri submits that with regard to the issue before

the court, the only logical construction of the Clean Air

Act is that plaged on it by the Ninth Circuit. That is, that

42 USC. $1857c-5(f) is’ not the exclusive means of

achieving flexibility in enforcement of state implementa-

tion plans. Instead, a state may grant a minor variance

(one which does not interfere with the attainment and

maintenance of, national] standards) even after the manda-

tory attainment date. Any other construction of the Act

will result in absurd consequences,'- and Congress cannot

be presumed to have intended such absurdities.”

11. In addition, there is a great dispute between the EPA

and the electric power industry as to whether the technology for

controlling sulfur dioxide emissions is presently available. Fur-

thermore, assuming EPA’s position is correct that the technology

for controlling sulfur dioxide emissions is now presently avail-

able, common sense dictates that all power plants in the United

States cannot be brought into compliance by mid-1976, simply

because it is physically impossible to complete such a massive

construction program by mid-1976. Therefore, no matter what

it is called, variances will have to be granted from such manda-

tory dates.

12. Major industrial and utility facilities closing down or

paying large fines, even though the public health and welfare is

being protected (because national ambient air quality standards

are being met) and compliance within an emission limitation is

impossible or economically ruinous, is, we subniit, absurd.

Admittedly, all sources must comply with the national

ambient air quality standards on the mandatory attainment

date (unless a one-year postponement is granted pursuant

to 42 U.S.C. §1857c-5(f)). Yet there is no statutory lan-

guage which would suggest that minor variances be

treated any differently after the attainment date than be-

fore such date. In fact the Act. in implicitly encouraging

the states to adopt implementation plans more stringent

than necessary to achieve and maintain the national stan-

dards,’* would seem to require post-attainment flexibility.

“Ss

and it has been postulated that 42 U.S.C. §1857c-5(f)

itself requires a uniform approach to pre-attainment and

post-attainment variances.'' We see no basis in the Act

for a differ-nt treatment of pre-attainment and post-attain-

ment variances.

An alternative to the granting of minor variances in

cases of technological or economic infeasikjlity is, of

course, a relaxation (lowering) of emission limitations to

the bare minimum.'* The difficulty with this approach is

that it lowers air pollution control for all sources to the

lowest common denominator. This approach flies in the

face of reason and the provisions of 42 U.S.C. $1857d-1.'°

13. 42 U.S.C. §1857d-1: Comment, Variance Procedures Un-

der The Clean Air Act: The Need For Flexibility, 15 Wm. and

M. L. Rev. 324, 336-337 (1973).

14. Id.; see also Natural Resources. Defense Council, Inc. v.

Environmental Protection Agency, supra, Slip Opinion pp. 7-8" <"*

15. EPA has suggested (at least implicitly) this approach

in certain informal publications.

16. Footnote 13, supra; 42 1/.S.C. §1857d-1 provides:

“Except as otherwise provided in sections 1857f-6a, 1857f-

6c(c)(4), and 1857f-11 of this title (preempting certain

State regulation of moving sources) nothing in this chapter

(Continued on following page)

=

ae

10

Does it not make more sense to set emission limitations at

levels which make an effort to improve ambient air quality,

and make judicious use of minor variances to accomodate

cases where the stringent limitations cannot be met for a

period of time, than to require all sources to meet only the

minimum levels of emission reduction necessary to protect

the public health and welfare?

We submit that 42 U.S.C. §1857d-1 provides, at the

least, that the respective states have the option to enact

such a scheme of regulation. Otherwise, Congress would

have had no reason to specifically provide in that section

for state regulation and enforcement of emission limita-

tions in the terms there provided. Congress could not have

intended to enact a regulatory scheme encouraging innova-

tion and progressive regulation, yet prohibit any flexibility

after the scheme takes final effect.

It might also be suggested that the flexibility required

to meet technological and economic reality could be pro-

vided by a judicious delay of enforcement, or the use of

schedules of compliance in enforcement orders, by EPA."

+

Footnote Continued—

shall preclude or deny the right of any State or political sub-

division thereof to adopt or enforce (1) any standard or limi-

tation respecting emissions of air pollutants or (2) any re-

quirement respecting control or abatement of air pollution:

except that if emission standard or limitation is in effect

under an applicable implementation plan or under section

1857c-6 or section 1857c-7 of title, such State or political

~ subdivision may not adopt or enforce any emission standard

or limitation which is less stringent than. the standard or

limitation under such plan or section.”

17. EPA has suggested the use of such a scheme in its

publication “National Strategy For Control of Sulfur Oxides Froin

Electric Power Plants”, pp. 16-17, 23-24 (Washington, D.C., July

1974).

11

This would amount, in effect, to EPA’s granting of vari-

ances to individual sources. We feel, however, that this

scheme is less desirable than state variance procedures,

because state variances are granted after public hearing.

EPA, on the other hand, need not hold a hearing, or other-

wise subject a proposed enforcement order to public

scrutiny. In addition, state variances can be granted only

for certain specified reasons,'’* while EPA’s standards of

granting compliance delays are known only to them. We

the variance by EPA," is a more equitable procedure, less

susceptible to abuse, and is a procedure contemplated by

Congress when it enacted the Clean Air Act.

CONCLUSION

Amicus Curiae, the State of Missouri, submits that 42

U.S.C. §1857c-5(f) is not the exclusive method whereby

compliance with particular requirements of a state imple-

mentation plan may be deferred if national ambient air

quality standards are being met and maintained. Rather.

the Clean Air Act allows the states to grant minor vari-

ances, subject to EPA approval, both before and after the

mandatory attainment dates provided in 42 U.S.C. §1857c-

5(a)(2)(A). Any other reading of the Clean Air Act

would plainly defeat the intent of Congress to encourage

the states to set emission limitations and compliance dates

more stringent than required to meet national ambient air

18. See Appendix p. 1.

19. Variances are presently treated as revisions of the state

implementation plan, 40 C.F.R. $51.6.

12

quality standards, and would result in inequitable, absurd

and economically disastrous consequences.

Respectfully submitted,

t JOHN C. DANFORTH

Attorney General

WALTER W. Nowortny, JR.

Assistant Attorney General

Dan SUMMERS

Assistant Attorney General

Supreme Court Building

Jefferson City, Missouri 65101

(314/751-3321)

Attorneys for Amicus Curiae