Circuits Split on Whelther EPA May Require a State to Adopt and Enforce Clean Air Act Transportation Controls

Introduction

Two U.S. Courts of Appeals have recently ruled¹ that § 113 of the Clean Air Act² does not give the Environmental Protection Agency authority to require states, under pain of civil sanctions and penalties, to adopt or enforce particular transportation control measures as part of their implementation plans. The two decisions, which expressly reject a 1974 Third Circuit ruling that EPA does have such power under the Commerce Clause³ and § 113, have dealt a blow to the beleaguered agency's ability to lead and administer effectively the national air pollution control program.

The magnitude of the task of controlling air pollution from auto emissions in certain metropolitan areas was underestimated by EPA in its initial attempts to implement the Clean Air Act. It soon became clear that in some cities, because of topographic features or the sheer numbers of automobiles, the legislatively-mandated 90 percent reduction in per vehicle emissions levels would not be enough by itself to assure achievement and [5 ELR 10194] maintenance of the health-related primary air quality standards established for certain pollutants. This was brought home to EPA by judicial rulings in City of Riverside v. Ruckelshaus⁴ and Natural Resources Defense Council, Inc. v. Environmental Protection Agency,⁵ which essentially ordered the Administrator to promulgate regulations, including restrictions on transportation if necessary, for the control of photochemical oxidants (a product of automobile exhausts and sunlight) and carbon monoxide, and to disapprove state implementation plans which did not provide for the timely attainment and maintenance of the national standards for these two pollutants.

Pursuant to these rulings, EPA disapproved portions of the implementation plans of most states, including California, Pennlsylvania and Maryland. To remedy the inadequacies in the disapproved plans, the agency then promulgated transportation control plans for each of these states, including such measures as state-operated vehicle inspection and maintenance programs, vehicle retrofit requirements, reductions in gasoline sales, parking surcharges, preconstruction review of new parking facilities, and establishment of bus lanes and bikeways.

As a result of the very vocal, though irrational fear that these measures would cause significant changes in lifestyle for auto users, transportation controls quickly became the most politically explosive issue in the national air pollution control effort. EPA retreated on several of the more ambitious of these proposals, such as parking management and preconstruction review of both new parking facilities and indirect sources like shopping centers, in the face of local and congressional pressure. More than any one provision of the plans, however, certain states objected to EPA's claim of power to impose civil sanctions and penalties on a state should it fail to adopt and enforce the particular transportation control strategies recommended or promulgated by the agency.

The Judicial Split: Constitutional Cracks in the Statutory Facade

The first court to rule on whether EPA has this power was the Third Circuit Court of Appeals in its 1974 decision in Pennsylvania v. EPA,⁶ where it reviewed the EPA Administrator's promulgation of retrofit controls for metropolitan Philadelphia in response to a petition from the Commonwealth of Pennsylvania. The court held that imposition of these regulations as part of the state's implementation plan and use of federal enforcement penalties directly against the state for noncompliance with them was a valid exercise of the federal commerce power under § 113 of the Clean Air Act. According to the court, the legislative history and statutory framework clearly show Congress intended that states be required to implement approved transportation control plans. Thus, the Administrator's action in applying federal sactions to enforce such a requirement against Pennsylvania was within his statutory authority.

Pennsylvania had argued strenously that the Administration's actions exceeded the limits of federal power under the Commerce Clause and unconstitutionally infringed upon the state's sovereignty. In the state's view, its activities in proposing, adopting and enforcing transportation control plans under the Clean Air Act represented an exercise of uniquely governmental functions rather than activity also engaged in by private parties. Under this analysis, while the private parties are subject to federal regulation under the commerce power, the state governments are not. The court remained unpersuaded by this line of reasoning, however, deducing from the case law the general principle that the constitutionality under the Commerce Clause of federal regulation of state activities, as of private activities, is determined simply by whether they have an impact on interstate commerce.

Recognizing that compliance with the EPA-promulgated plan would require Pennsylvania to exercise its legislative and administrative powers, the court ruled that this is nonetheless a valid adaptation of established principles of federalism with regard to air pollution control in view of the impracticability of direct federal enforcement and administration of the various state transportation control plans. Such direct federal enforcement, the court noted, would hardly represent any less of an intrusion on state sovereignty in any event.

The Third Circuit's reasoning has not proven to be the last word on the issue, however, On August 15, 1975, the Ninth Circuit Court of Appeals weighed in with its decision in Brown v. Environmental Protection Agency,⁷ holding emphatically that § 113 of the Clean Air Act does not give EPA the power to impose adoption and enforcement of particular transportation controls on states under pain of civil sanctions and penalties. Then, on September 19, 1975, this even match in judicial views became lopsided when the Fourth Circuit Court of Appeals adopted the Ninth Circuit's position with its ruling in Maryland v. Environmental Protection Agency.⁸

The decision in Brown v. EPA and Maryland v. EPA, while based on statutory construction, were shaped in large part by constitutional considerations. According to these two courts, if Congress had intended to work a fundamental change in existing federal-state relationships it would have unequivocally expressed that intention in the statute. Characterizing the legislative history as ambiguous on this point, both courts pointed out that the canons of stautory construction dictate an interpretation in such circumstances which avoids raising constitutional issues. Although this resolution of the dispute made it unnecessary for either circuit to rule on [5 ELR 10195] the extent of the federal commerce power in the field of air pollution control, neither court could resist discussing for purposes of illustration the constitutional sticking points which they were nominally so anxious to avoid confronting.

The Fourth Circuit's treatment of these problems was quite direct. Terming "astonishing" EPA's regulations requiring Maryland to adopt statutes, regulations and enforcement procedures regarding vehicle retrofit, the court observed that the right of the state legislature to pass, or not to pass, laws is a most fundamental attribute of state sovereignty. Stripping a state of this right by giving EPA the power to require it to adopt and enforce federally-proposed transportation controls under pain of civil sanctions and penalties is therefore of very doubtful constitutional validity.

The Ninth Circuit took a longer and more painstaking look at the constitutional issues, addressing the limits of federal regulatory power under the Commerce Clause. The court distinguished between an economic activity affecting commerce, concededly subject to regulation, and a state's exercise of its police power with respect to such an activity, which exercise is not subject to federal regulation. In other words, the power of the states over commerce must yield to federal regulatory power solely because of the Supremacy Clause, not because such state power is itself commerce. Therefore while particular state actions governing commerce which conflict with federal law may be invalidated under the Supremacy Clause, to treat all unexercised state power as additionally within the plenary reach of the federal commerce power would fundamentally alter existing federal-state relationships.

On the Ninth Circuit's analysis, Congress is clearly free to determine that if a state chooses to regulate matters which have an effect on interstate commerce, it may do so only in certain specified ways. Congress also has the power to authorize the Administrator to induce a reluctant state to cooperate by conditioning federal expenditures within the state on the state's adopting and enforcing a program of transportation controls suggested by the Administrator. But to deny a state the choice of abandoning to the federal government all regulatory responsibility in this or any area without becoming liable to sanctions is contrary to existing constitutional practice. The court noted that while federal law often prohibits the states from doing certain things, it rarely, if ever, imposes directly upon a state or its officials the duty to undertake a particular task or face federal sanctions. Such an approach would enable Congress to control increasing portions of state budgets, and would, according to the court, raise the possibility that the Tenth Amendment's federal pledge to guarantee to the states a republican form of government was being violated.

In reaching these conclusions, the Fourth and Ninth Circuits disagreed with the Third Circuit's reasoning in Pennsylvania v. EPA. The court in Brown v. EPA attempted to explain this split by asserting that the Third Circuit "failed to recognize the difference between a state engaging in commerce, as all states must under the Supreme Court's interpretation of the Commerce Power, and a state's regulation of the commerce of others." But the Fourth and Ninth Circuit opinions sidestepped one pivotal EPA contention. In Brown v. EPA, the court admitted that pollution-creating activities of the state itself, as distinct from state regulation of the polluting activities of citizens and industries, are subject to federal regulation and sanctions. EPA argued forcefully that the states' actions in building and maintaining highways and licensing both vehicles and drivers are, in fact, just such pollution-creating activities. The Ninth Circuit implicitly rejected this view and the Fourth Circuit did not even mention it. The Third Circuit had found this line of reasoning persuasive, however, and displayed a sophisticated understanding of the basic dilemma which EPA's contention pointed up:

The states have, by their transportation policies, contributed to the problem of air pollution from automobile emissions, and they can be required to take affirmative actions to correct it. The Commonwealth cannot by denominating traffic control and vehicle registration as "governmental" activities, immunize them from federal regulation designed to reduce air pollution.⁹

Implications: The End of Clean Air Act Transportation Control?

These recent judicial defeats may have seriously compromised EPA's ability to bring the Clean Air Act's pollution control program to fruition. Chronically understaffed and struggling under a huge workload, the agency has of necessity adopted the strategy of assigning actual administration and enforcement of transportation controls to the states themselves. EPA is undoubtedly correct in asserting that direct federal implementation of such controls would be both inefficient and impractical. As the Third Circuit noted in Pennsylvania v. EPA, it would require the federal government to undertake detailed responsibility for the regulation of roads and highways which are presently patrolled and maintained by state agencies. Similarly, it would mean the establishment of federally-staffed and -operated inspection, maintenance and retrofit programs for vehicles which, at present, are registered, inspected, and regulated almost exclusively at the state and local level. As Congressman Staggers (D-W. Va.), the floor manager of the legislation in the House, put the matter:

If we left it all to the federal government, we would have about everybody on the payroll of the United States. We know this is not practical.¹⁰

The Fourth Circuit's blunt reply to this line of argument, however, was that even if it is true, "constitutional [5 ELR 10196] principles may not be violated for administrative expedience."

A decision has not yet been made on whether to petition the Supreme Court for certiorari in Brown and Maryland. It is interesting to note that Attorney General Levi, whose Department is representing EPA in both cases, stated in congressional testimony last spring¹¹ that a national no-fault auto insurance bill was probably unconstitutional in as much as it provided for federal power to direct states in certain instances to impose no-fault plans, an administrative framework very similar to EPA's asserted interpretation of the Clean Air Act in these cases.

If no petitions are filed, or if the judgments are upheld on appeal, EPA's options are not attractive. Direct federal administration and enforcement of transportation controls at the state and local level would require vast increases in federal personnel, expenditures, and intrusion into state and local affairs, and is extremely unrealistic. The agency could go to Congress for an amendment to the statute, but it seems fairly clear that the Fourth and Ninth Circuits would hold unconstitutional any Clean Air Act amendment which explicitly authorized EPA to force the states to adopt and enforce federally-promulgated transportation controls.

The time-honored federal "carrot and stick" approach remains an alternative. Under the Urban Mass Transportation Act,¹² transfer of federal highway and mass transit funds to the states could be conditioned on adoption and enforcement of transportation controls at the state level. This approach has already been used to persuade the states to adopt and enforce the 55 mile per hour speed limit for the purpose of energy conservation. Although transportation controls under the Clean Air Act are designed to reduce air pollution, they would conserve significant amounts of gasoline as well. Whether such an approach is politically realistic is, however, uncertain at this point.

In this regard, it is worth noting that the Urban Mass Transportation Administration, in conjunction with the Federal Highway Administration, recently promulgated regulations¹³ requiring state and metropolitan officials to study actions, such as parking management and designation of bus lanes, which could be taken to curb auto use and encourage mass transit. Under these rules, each urbanized area, as a condition of receiving federal capital or operating assistance, must have a continuing, comprehensive transportation planning process, which, inter alia, is coordinated with air quality planning under the Clean Air Act. These regulations indicate that state and local governments will almost certainly have to impose some form of transportation controls in the long run, for mass transit and energy conservation purposes if not for the control of air pollution. Ironically, by fighting EPA-imposed transportation controls at this juncture, state and local governments will ultimately have to bear the onus of imposing such controls themselves, rather than being able to point to a federal agency as the "bad actor" who forced them to do so.

Conclusion

If the view of the Fourth and Ninth Circuits prevails, the EPA-directed transportation controls program under the Clean Air Act will be severely hindered, at least in the near term. While such a result may be politically comfortable, it represents a retreat in the battle for clean air. Without the adoption and enforcement of transportation controls in the very near future, a number of metropolitan areas will be unable to meet the statutory ambient air quality standards on time, even with the extensions of statutory deadlines which have already been granted. In view of the seriousness of these consequences, the Third Circuit's reasoning in Pennsylvania v. EPA should be given careful consideration by the Supreme Court, if an appeal is taken, or by other courts of appeals which may have occasion to rule on the issue prior to, or in the absence of, a Supreme Court decision.

1. Brown v. Environmental Protection Agency, 5 ELR 20546 (9th Cir. Aug. 15, 1975); Maryland v. Environmental Protection Agency, 5 ELR 20651 (4th Cir. Sep. 19, 1975).

2. 42 U.S.C. § 1857c-8 (1970).

3. Pennsylvania v. Environmental Protection Agency, 500 F.2d 246, 5 ELR 20618 (3rd Cir. 1974).

4. 3 ELR 20043 (C.D. Cal. 1972).

5. 475 F.2d 968, 3 ELR 20155 (D.C. Cir. 1973).

6. Supra n. 3.

7. Supra n. 1.

8. Supra. n. 1.

9. 500 F.2d 246, 261; 5 ELR 20618, 20625.

10. 116 Cong. Rec. 19204 (June 10, 1970).

11. Hearings on S. 354 before the Senate Commerce Comm., 94th Cong., 1st Sess. 496, 502, 504 (1975).

12. 49 U.S.C. § 1601 et seq. (1970).

13. 23 C.F.R. 450.100-122, 40 Fed. Reg. 42976 (Sep. 17, 1975).