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Brown v. EPA

Citation: 8 ELR 20140
No. No. 73-3306, 566 F.2d 665/11 ERC 1161/(9th Cir., 12/23/1977) Petitions for review granted in part

On remand from the United States Supreme Court, the Ninth Circuit partially invalidates the Environmental Protection Agency's (EPA's) revised regulations requiring that California establish an automobile inspection and maintenance program. The case is not moot but ripe for decision, at least as to the dispute between EPA and the state over the validity of the revised regulations. An examination of the legislative history of the 1977 amendments to the Clean Air Act leads the court to adhere to the reasoning of its earlier decision, 5 ELR 20546, regarding the original regulations and to rule that the Act, as amended, does not authorize EPA to treat state as a polluter subject to federal sanctions under §113 because of its refusal to adopt such a program. Congress did not intend a state to be considered a polluter because of the emissions from automobiles that use highways it builds and maintains. The court emphasizes that a contrary ruling, although narrower than the one EPA sought in the earlier litigation, would raise serious constitutional questions regarding the limits of the federal commerce power as established by National League of Cities v. Usery, 426 U.S. 833 (1976).

Counsel for Petitioners
Evelle J. Younger, Attorney General; R. H. Connett, Assistant Attorney General
555 Capitol Mall, Suite 350, Sacramento CA 98514
(916) 445-9555

Counsel for Respondent
James W. Moorman, Ass't Attorney General; Neil T. Proto, Edmund B. Clark
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 737-8200

Joined by Wright & Kilkenny, JJ.