Pacific Legal Foundation v. Gorsuch

Nos. 81-4442; -7060 (9th Cir. October 20, 1982)

The court rules that a public interest law organization and named members of the California legislature lack standing to challenge the Environmental Protection Agency's (EPA's) imposition of a construction ban and funding sanctions against California pursuant to the Clean Air Act for the state's failure to adopt legislation implementing a motor vehicle emissions control inspection and maintenance program. The court first rules that the Pacific Legal Foundation (PLF) lacks standing to assert its claims (1) to force EPA to promulgate state implementation plan (SIP) provisions remedying the inadequacies the Agency found in the state's SIP and (2) to declare the construction ban and funding sanctions unconstitutional. In these cases the organization is not action on behalf of any individuals associated with it and is not itself adversely affected by EPA's actions. Its constitutional claims against the construction ban and funding sanctions under Article IV, Section 4 and the Fifth and Tenth Amendments concern guarantees to the states, not to private organizations. PLF cannot avail itself of the citizen suit authority of § 304 because it does not meet the constitutional standing requirement of Article III that it show an injury in fact to itself or others that it represents.

The court also rules that the legislators lack standing. They do not assert claims as individuals, but as members of the legislature. Therefore, they may only assert the rights of the state guaranteed by Article IV, Section 4 or the Fifth and Tenth Amendments. However, they did not allege that they represent, or have even been authorized to represent, the legislature of the state and thus lack standing. Nor does the allegation of general economic hardship resulting from EPA's action confer standing, for this is the type of generalized grievance appropriately addressed in the legislative branch of government.

Counsel for Appellants
Anthony T. Caso
Pacific Legal Foundation
455 Capitol Mall, Suite 600, Sacramento CA 95814
(916) 444-0154

Counsel for Appellee
David B. Stromberg
Office of Regional Counsel
Environmental Protection Agency, 2153 Mott St., San Francisco CA 94105
(415) 556-2067

Jose R. Allen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

Before WISDOM,^* DUNIWAY, and NORRIS, Circuit Judges.

[13 ELR 20105]

DUNIWAY, Circuit Judge:

In these two cases, whichhave been consolidated for consideration and disposition, we have concluded that the plaintiffs in our No. 81-4442 and the petitioners in our No. 81-7060 do not have the standing required to maintain the proceedings. We therefore affirm in No. 81-4442 and dismiss the petition for review in No. 81-7060.

I. The Plaintiffs and Petitioners.

In No. 81-4442, the amended complaint [13 ELR 20106] lists the plaintiffs as Pacific Legal Foundation, which says that it is a nonprofit tax exempt public interest law organization incorporated under the laws of the State of California, and six named members of the California Senate and eight named members of the California Assembly. In No. 81-7060, the petitioners are the Pacific Legal Foundation, three of the six California senators who are plaintiffs in No. 81-4442, one other California senator, and seven of the California assemblymen who are plaintiffs in No. 81-4442. The listed members of the California Senate and Assembly allege in each case that they are proceeding in their official capacity as members of the California State Legislature.

II. The Background of the Controversy.

These areas arise under the Clean Air Act, 42 U.S.C. §§ 7401, et seq., as amended in 1977. The purpose of the Act is to achieve clean air throughout the nation. In enacting it, the Congress desired to establish a combined state and federal program to control air pollution. Under the Act and particularly § 109, 42 U.S.C. § 7409, the United States is responsible for establishing air quality standards.

The primary responsibility for achieving these standards was placed upon the states. Each state was required to submit to the Administrator a plan for implementation, maintenance and enforcement of air quality standards. We refer to these as State Plans. See 42 U.S.C. § 7410(a)(1). The Act contains detailed requirements as to the contents of State Plans. 42 U.S.C. § 7410(a)(2)(B) and (G).If the Administrator of the Environmental Protection Agency found a State Plan to be inadequate to meet the criteria of the Act, or if the state declined to submit a plan within a certain time, the Administrator was required to promulgate a federal plan for the state. 42 U.S.C. § 7410(c)(1).

By regulation, the Agency prohibited the construction of any major source of pollution in any area in which the standards for any pollutant generated by the source were not being met, 40 C.F.R. § 51.18(b) (1976), subject to certain exceptions, 40 C.F.R. § 51 Appendix S (1979). This prohibition has been continued in effect, first in the 1977 amendments to the Act, 42 U.S.C. §§ 7501-7508, and then by further regulation by the Administrator, 40 C.F.R. § 52.24 (1980).

There was widespread failure to attain air quality standards for automobile exhaust pollutants, carbon monoxide and ozone. As to these, Congress authorized the Agency to grant limited extensions for meeting the standards until December 31, 1987, 42 U.S.C. § 7502(a)(2). However, in order to receive such an extension, a state was required to include a motor vehicle emission control inspection and maintenance program in its revised State Plan, to enact necessary legislation by January 1, 1979, and to implement the program as expeditiously as practicable. 42 U.S.C. § 7502(b)(2), (10), and (11)(B); Pub.L. No. 95-95, § 129(c) (1977), 42 U.S.C. § 7502 note.

Congress conditioned certain federal grants upon a state's satisfactory participation in the State Plan program. Where transportation control measures are needed and the state has not submitted, or made reasonable efforts to submit, a revised plan by July 1, 1979, the Agency is not to approve grants otherwise authorized by the Clean Air Act, and the Secretary of Transportation is not to award certain highway grants. 42 U.S.C. § 7506(a). Section 7616(b) of Title 42 authorizes the Administrator to withhold or restrict sewage treatment construction grants if the state does not have or is not carrying out an approved State Plan containing certain provisions.

California had not met the Federal requirements for its State Plan or Plans, or for a vehicle inspection and maintenance program, when this action was filed. It was therefore subjected to the prohibition on construction of new sources of pollution in nonattainment areas, and to the withholding of grants. In effect these are inducements to California to adopt Plans and programs conforming to the Act.

California has submitted revisions of its State Plans for most of its air pollution control districts. On September 8, 1982, California finally enacted a law which provides for implementation of a mandatory motor vehicle inspection and maintenance program (Senate Bill 33). However, because we hold that plaintiffs do not have standing, we do not pass on the effect of this statute or of California's revised Plans, or the merits of this case.

III. The Relief Sought.

In No. 81-4442, in their amended complaint, the plaintiffs sought the following relief:

A judgment declaring: that the Administrator has a nondiscretionary duty to promulgate a revised State Plan, which arose on July 1, 1979, and has failed to perform that duty, and ordering her to do it;

that the administrator is without authority to impose an areawide ban on construction or modification of major stationary sources of pollutants in California, and that the ban was imposed as an unlawful and unconstitutional sanction for the state's refusal to enact a vehicle inspection and maintenance program, and enjoining enforcement of the ban;

that the Administrator is without constitutional authority to require officials of the State of California or its political subdivisions to enact legislation or perform other government functions, and prohibiting her doing so.

A judgment enjoining the Administrator from imposing any other sanctions on the plaintiffs, the State of California, or its citizens, including the withholding of federal grant moneys, for the failure of California to enact legislation.

In No. 81-7060, the same plaintiffs, except for three senators and one assemblyman, and with the addition of a different senator, petition for review of the Administrator's decision of December 12, 1980, to withhold federal funds available to certain areas of the State of California under the Clean Air Act, the Clean Water Act, and the Surface Transportation Assistance Act. 45 Fed.Reg. 81,746 (1980) (to be codified at 40 C.F.R. Ch. 1).

IV. The Relationship of the Plaintiffs to the Wrongs Complained of and to the Relief Sought in their Complaint.

In No. 81-4442, the plaintiffs allege the following, as to the Pacific Legal Foundation:

Policy for PLF is set by an eighteen member Board of Trustees composed of concerned citizens who reside throughout the State of California and the States of Washington and Idaho. Thirteen of the eighteen member Board are attorneys. The Board evaluates the merits of any contemplated action and authorizes such action only where the Foundation's position has broad support within the general community. The Board has approved the filing of this action.

PLF is a person within the meaning of 42 U.S.C. §§ 7602(e) and 7604(a) (CAA §§ 302(e) and 304(a)). This action is brought pursuant to 42 U.S.C. § 7604(a)(2) (CAA § 304(a)(2)), . . .

Among the members, supporters, and contributors of PLF are residents of major metropolitan areas of the State of California who suffer from the effects of air pollution. PLF, its members, supporters, and contributors are deeply concerned with the adverse effects of air pollution in California and are also vitally interested in avoiding severe economic dislocation.

Among the members, supporters, and contributors of PLF are citizens and voters of the State of California. PLF, its members, supporters, and contributors are vitally interested in maintaining a republican form of government for the State of California and a Legislature that is free from unlawful coercion by unelected federal officials.

[13 ELR 20107]

These interests of PLF, its members, supporters, and contributors are injured in fact by the failure of defendant Costle [the then Administrator] to promulgate a plan for the implementation of primary national ambient air quality standards (NAAQS) for nonattainment areas within the State of California, and by defendant Costle's unlawful attempts to extort affirmative conduct on the part of the California State Legislature. These interests are within the zone of interests of the Clean Air Act.

As to the members of the Legislature, there is a seperate paragraph for each which states that he is a duly elected member of the Legislature and then continues as follows:

As a State Legislator, [he] is vitally interested in preserving the integrity of state legislative processes as guaranteed by Article IV, Section 4 of the United States Constitution and by the Tenth Amendment to the United States Constitution. These interests of [his] are injured in fact by defendant Costle's unlawful attempts to extort affirmative conduct on the part of the California State Legislature.

The complaint then proceeds to allege that the Administrator is under a mandatory statutory duty to adopt a revised State Plan for California, the state not having done so, and continues:

Plaintiff PLF, its members, supporters, and contributors suffer injury-in-fact by reason of defendant Costle's failure to perform this nondiscretionary duty.

Defendant Costle's refusal to approve a revised [State Plan] for California without legislative authorization for [a vehicle inspection and maintenance] program is presumedly based in part on nonattainment of primary [standards] for photochemical oxidants (pollutants from motor vehicle exhaust) in major population centers of California. Defendant Costle's failure to perform his nondiscretionary duty of promulgating a revised [State Plan] for California, however, will not improve air quality.

Regarding the Administrator's ban upon construction or modification of major sources of pollutants in nonattainment areas, the complaint alleges:

Plaintiffs are injured by defendant Costle's unlawful actions. This ban on construction will, at the least, cause economic stagnation and, more likely, will cause severe economic dislocation for millions of Californians who rely on jobs from both construction and industry.

The complaint further alleges:

While defendant Costle continues his unlawful and extortion-like threats to plaintiff Legislators and the California Legislature, plaintiff PLF suffers the adverse health effects of deteriorating air quality and the severe economic impact of the construction ban.

Under the heading "Interference with Constitutionally Guaranteed Political Rights," the plaintiffs make the following allegations:

Article IV, Section 4 of the United States Constitution guarantees each state a republican form of government. Inherent within a republican form of government is a legislative body that is responsive and accountable to the electorate and free from external coercive interference. Defendant Costle has violated this constitutional right of plaintiffs by his extortion-like tactics in his quest to conquer the California State Legislature.

The Fifth Amendment to the United States Constitution guarantees to the people that they will not be deprived of liberty without due process of law. Inherent in the concept of liberty is the people's control over their law makers through the electoral process. Defendant Costle seeks to deny this liberty to plaintiffs and other citizens of California.

The Tenth Amendment to the United States Constitution reserves to the states the police power, subject only to the prohibitions enumerated in the Constitution. A major component of this police power is the performance of governmental functions by the state. It is axiomatic, therefore, that a State Legislature performing the legislative function is acting within the police power reserved to the states by the Tenth Amendment to the United States Constitution. Defendant Costle has impermissibly intruded upon the police power of the State of California by sanctioning the people of California for the refusal of the State Legislature to enact the defendant's proposed legislation, and plaintiff Legislators are injured thereby.

* * *

With regard to each of the above violations of law and infringements on constitutional rights, plaintiffs now suffer and will continue to suffer immediate and irreparable harm unless an injunction is granted.

In No. 81-7060, the petition alleges, as to the Foundation:

Among the members, supporters, and contributors of PLF are citizens and voters of the State of California. PLF, its members, supporters, and contributors, are vitally interested in maintaining a republican form of government for the State of California and a legislature that is free from unlawful coercion by unelected federal officials.

Among the members, supporters, and contributors of PLF are citizens of the State of California who live and work in areas of the state that are affected by the announced federal funding limitation. PLF, its members, supporters, and contributors would derive substantial benefit from the air pollution planning, construction of sewage treatment facilities, and construction and maintenance of roads that would be financed by the federal funds withheld from the state by the Administrator.

As to the legislators, the petition alleges:

As state legislators, they are vitally interested in preserving the integrity of the state legislative processes as guaranteed by Article 4, Section 4 of, and the Tenth Amendment to, the United States Constitution. Among their duties as California State Legislators, they must decide how to distribute the scarce financial resources of the state in a manner that would best benefit the health and welfare of the citizens of the state in general and, specifically, their constituents. The withholding of federal funds for air pollution planning, construction of sewage treatment facilities, and construction and maintenance of roads has a substantial impact on their official duties.

Finally, petitioners state:

The action taken by the Administrator directly injures these interests of PLF and the named members of the California State Legislature.

V. Standing.

A. Pacific Legal Foundation.

The foundation has no standing to assert any of the claims that it makes.It does not allege that any of its directors, members, supporters, or contributors has authorized or asked it to represent them in either case. It does not allege that it does represent any of them. Moreover, it does not breathe the air in California, nor is its corporate health affected by what the Administrator has or has not done in California. Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 9 Cir., 1974, 507 F.2d 905, 910. None of the members, directors, supporters, or contributors is here asserting the claims that the Foundation asserts.

As to the claims that the Administrator is violating the Constitution, Article IV, Section 4, and the Fifth and Tenth Amendments, the violation, if any there be, is not a violation of any rights of the Foundation. Article IV, Section 4, and the Tenth Amendment, are guarantees to the States, [13 ELR 20108] not to the Foundation. If there has been any violation of the Fifth Amendment, it is a violation of rights of the State, not of the rights of the Foundation. Mountain States Legal Foundation v. Costle, 10 Cir., 1980, 630 F.2d 754, 767-769, is directly in point.

Nor can the Foundation gain comfort from 42 U.S.C. § 7604(a), which provides:

(a) Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf —

* * *

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator,

* * *

The district courts shall have jurisdiction without regard to the amount in controversy or the citizenship of the parties, . . . to order the Administrator to perform such act or duty, . . .

In Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 1982, U.S. , 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982), the Court restated the requirements of standing imposed by Article III of the Constitution and reiterated its previous holdings:

[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 [99 S. Ct. 1601, 1608, 60 L. Ed. 2d 66] (1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 [96 S. Ct. 1917, 1924, 1925, 48 L. Ed. 2d 450] (1976). In this manner does Art. III limit the federal judicial power "to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process." Flast v. Cohen, supra, [1968, 392 U.S. 83] at 97 [88 S. Ct. 1942 at 1951, 20 L. Ed. 2d 947].

__ U.S. at __, 102 S. Ct. at 758.

The Foundation has shown no actual injury to itself or to anyone else for whom it can speak, arising out of the alleged violations of Article IV, Section 4, or of the Fifth or Tenth Amendments. For that reason, we must read § 7604(a)(2) as not applicable to the Foundation in this case.

In Valley Forge Christian College, supra, the Court also said:

The Art. III aspect of standing also reflects a due regard for the autonomy of those persons likely to be most directly affected by a judicial order. The federal courts have abjured appeals to their authority which would convert the judicial process into "no more than a vehicle for the vindication of the value interests of concerned bystanders." United States v. SCRAP, 412 U.S. 669, 687 [93 S. Ct. 2405, 2415, 37 L. Ed. 2d 254] (1973) . . . . As we said in Sierra Club v. Morton, 405 U.S. 727, 740 [92 S. Ct. 1361, 1368, 31 L. Ed. 2d 636] (1972)

"The requirement that a party seeking review must allege facts showing that he is himself adversely affected . . . does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome."

__ U.S. at __, 102 S. Ct. at 759.

All of the Foundation's trustees, members, supporters, and contributors are, so far as this case is concerned, anonymous. None of them is alleged to have authorized the Foundation to represent his or her personal, direct interests in this case. If any of them "can show 'injury in fact' resulting from the action which they seek to have the court adjudicate," id., he or she is not identified, nor is he or she shown to have authorized the Foundation to represent him or her in making such a showing. They simply are not here.

B. The Legislator Plaintiffs.

As we have seen, these plaintiffs sue only in their official capacities as members of the Legislature. They do not assert independent claims as individuals. Thus, their specific claims are confined to those under Article IV, Section 4, and the Fifth and Tenth Amendments. But those are claims of the State of California, and there is no allegation that the legislator plaintiffs represent, much less that they have been authorized to represent the house of the legislature of which they are members, the legislature itself, or the State.

For all that appears, the State may not desire to assert the constitutional claims that they make, either because it does not believe that the claims have merit, or for other reasons. In California, the Attorney General is, "[s]ubject to the powersand duties of the Governor, . . . the chief law officer of the State." Cal.Const., Art. 5, § 13. He "has charge, as attorney, of all legal matters in which the State is interested . . ." (Cal. Government Code § 12511), and ". . . shall . . . prosecute or defend all causes to which the State . . . is a party. . . ." (Id., § 12512). For whatever reason, he is not here.

In Mountain States Legal Foundation, supra, the state was before the court, arguing against the petitioners' claims. Here, it is not present at all. That fact, however, does not, by some alchemy, transfer the state's claims to the plaintiffs, just because the plaintiffs want to assert them. Here again, Mountain States is directly in point. See 630 F.2d at 769-771.

If we assume that the allegation that "plaintiffs" are injured by the ban on construction of major sources of pollution is intended to include the plaintiff legislators, it is still insufficient to give them standing. The injury involved, "economic stagnation," or "severe economic dislocation," may or may not in fact affect any of them, or any of the Foundation's members, supporters, or contributors. It is just the kind of claimed injury the assertion of which is an attempt at having the court adjudicate "'abstract questions of wide public significance' which amount to 'generalized grievances, pervasively shared and most appropriately addressed in the representative branches." Valley Forge College, supra, U.S. at , 102 S. Ct. at 760, quoting Warth v. Seldin, 1974, 422 U.S. 490, 499-500, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343.

In No. 81-4442, the judgment is affirmed. In No. 81-7060, the petition is dismissed.

* The Honorable John Minor Wisdom, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.