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7 ELR 20375 | Environmental Law Reporter | copyright © 1977 | All rights reserved Environmental Protection Agency v. BrownNos. 75-909, -960, -1050, -1055 (U.S. May 2, 1977)The Supreme Court vacates and remands decisions of the Fourth, Ninth, and D.C. Circuits which invalidated Environmental Protection Agency (EPA) regulations requiring states to implement and enforce EPA-promulgated transportation control plans as part of their air quality implementation plans or face federal enforcement sanctions. The three courts of appeals all held that the regulations, or major portions thereof, exceeded EPA's authority under the Clean Air Act and raised constitutional questions concerning the states' Tenth Amendment rights. In a per curiam opinion, the Supreme Court notes that EPA has conceded in its brief that the challenged regulations are in need of essential modification. To review the regulations at this stage would thus be to render an advisory opinion. The cases are remanded for consideration of mootness. Counsel for the Federal Parties G. William Frick, General Counsel; John E. Bonine, Assoc. General Counsel; Gerald K. Gleason, Deputy Assoc. General Counsel; William F. Pedersen Counsel for Petitioners-Intervenors Joel D. Joseph Counsel for the State Parties Evelle J. Younger, Attorney General; Joel S. Moskowitz, Mark I. Weinberger, Deputy Attorneys General Francis B. Burch, Attorney General; Henry R. Lord, Deputy Attorney General; Edward M. Norton, Jr., Ass't Attorney General Andrew P. Miller, Attorney General; Walter A. McFarlane, Deputy Attorney General; J. Thomas Steger, Ass't Attorney General John R. Risher, Jr., Corporation Counsel; Louis P. Robbins, Principal Ass't Corporation Counsel; John C. Salyer, Ass't Corporation Counsel PER CURIAM. These cases arise under the Clean Air Act, as amended in 1970, 42 U.S.C. § 1857, and raise questions concerning the authority of the Administrator of petitioner Environmental Protection Agency to compel various types of implementation and enforcement actions by the States. Three separate decisions in the Court of Appeals reviewed transportation control plans promulgated by the Administrator for several States which had previously failed to submit adequate plans of their own. Four petitions have been filed seeking review of those decisions which, with limited exceptions, invalidated the Administrator's transportation control plans which had been adopted in the form of regulations. Those transportation control plans have a variety of aspects which need not be discussed in great detail to explain our disposition of the case. In general, they imposed upon the States the obligations (1) to develop an inspection and maintenance program pertaining to the vehicles registered in the affected Air Quality Control Regions, and to submit to the Administrator by fixed deadlines, both a schedule of compliance and the operative regulations by which the program was to be run; (2) to develop various retrofit programs pertaining to several classes of older vehicles, in order to minimize several different types of emissions; (3) to designate and enforce preferential bus and carpool lanes, on streets sometimes specifically identified in the regulations and sometimes left to be chosen by the State; (4) to develop a program to monitor actual emissions as affected by the foregoing programs; and to adopt certain other programs which varied from State to State. The critical fact about all of the foregoing obligations was that they were imposed on the States, under 40 CFR § 52.23, as elements of an applicable implementation plan. The State's failure to carry out any of them would therefore not merely allow the Administrator to step in and carry them out himself under § 113(a)(2),1 but would, in the view of each of the Courts of Appeals, render the State "in violation of a requirement of an applicable implementation plan" and therefore apparently subject to direct enforcement actions against it under the provisions of § 113(a)(1): "Whenever, on the basis of any information available to him, the Administrator finds that any person is in violation of any requirement of an applicable implementation plan, the Administrator shall notify the person in violation of the plan and the State in which the plan applies of such finding. If such violation extends beyond the 30th day after the date of the Administrator's notification, the Administrator may issue an order requiring such person to comply with the requirements of such plan or he may bring a civil action in accordance with subsection (b)." Under dual challenges by the States that these regulations were not within the mandate of the Act, and that if they were they were in violation of the Constitution, the United States Courts of Appeals for the Ninth, Fourth, and District of Columbia Circuits struck them down. All of the courts rested on statutory interpretation, but noted also that serious constitutional questions might be raised if the statute were [7 ELR 20376] read as the United States argued it should be. Brown v. EPA, 521 F.2d 827 (CA9 1975); Arizona v. EPA, 521 F.2d 825 (CA9 1975); District of Columbia v. EPA, U.S. App. D.C. , 521 F.2d 971 (1975); Maryland v. EPA, 530 F.2d 215 (CA4 1975). The only substantial variation in the outcome of these decisions2 was that the District of Columbia Circuit affirmed regulations requiring the creation of bus lanes, the purchase by the affected jurisdictions of a fixed number of new buses, and the denial of registration to a vehicle whose owner in unable to produce a federal certificate of compliance, should a federal inspection program be instituted. The Solicitor General's petitions from all three Courts of Appeals challenged them only insofar as they invalidated the regulations requiring state inspection and maintenance programs. In addition we granted the petition for certiorari of the State of Virginia on its challenge to the regulations which the District of Columbia Circuit had upheld. Prior to argument, the Solicitor General informed the Court that repeal of the bus purchase regulations was imminent, Government Reply Brief, at 25,3 and that issue was thereby effectively removed from the case. Thus the case has undergone a great deal of shrinkage since the decisions below due to the Government's exercise of its prerogative not to seek review of the invalidation of certain regulations. But the Government has not merely renounced an intent to pursue certain specified regulations; it now appears to admit that those remaining in controversy are invalid unless modified in certain respects: "The Administrator . . . concedes the necessity of removing from the regulations all requirements that the States submit legally adopted regulations; the [Administrator's] regulations contain no requirement that the State adopt laws." Government Brief, at 20 n. 14. The Government's position now appears to be that, while the challenged transportation plans do not require the enactment of state legislation, they do now contain, and must be modified to eliminate, certain requirements that the State promulgate regulations. See Government Reply Brief, at at 14 n. 22. We decline the Government's invitation to pass upon the EPA regulations, when the only ones before us are admitted to be in need of certain essential modifications. Such action on our part would amount tothe rendering of an advisory opinion. For this Court to review regulations normally required to be first reviewed in the Court of Appeals, before such review is had, is extraordinary. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584-585 (1952). For it to review regulations not yet promulgated, the final form of which has only been hinted at, would be wholly novel. See generally CBS v. United States, 316 U.S. 407, 417-419 (1942); United States v. Los Angeles & Salt Lake Railroad Co., 273 U.S. 299, 309-310 (1927). The judgments of the respective Courts of Appeals are vacated, and the cases are remanded for consideration of mootness and such other proceedings as may be consistent with this opinion. 1. Section 113(a)(2); 42 U.S.C. § 1857c-8(a)(2): "Whenever, on the basis of information available to him, the Administrator finds that violations of an applicable implementation plan are so widespread that such violations appear to result from a failure of the State in which the plan applies to enforce the plan effectively, he shall so notify the State. If the Administrator finds such failure extends beyond the 30th day after such notice, he shall give public notice of such finding. During the period beginning with such public notice and ending when such State satisfies the Administrator that it will enforce such plan (hereafter referred to in this section as 'period of Federally assumed enforcement'), the Administrator may enforce any requirement of such plan with respect to any person — "(A) by issuing an order to comply with such requirement, or "(B) by bringing a civil action under subsection (b)." 2. Prior to the decision of the Ninth Circuit, a similar set of regulations pertaining to Pennsylvania had been upheld by the Third Circuit. Pennsylvania v. EPA, 500 F.2d 246 (CA3 1974). That decision is not presently before the Court. 3. The regulations were officially rescinded on February 8, 1977. 42 Fed. Reg. 7957. MR. JUSTICE STEVENS, dissenting. The action the Court takes today is just as puzzling as the Government's position. Unless and until the Environmental Protection Agency rescinds the regulations in dispute, it is perfectly clear that the litigation is not moot. Moreover, an apparent admission that those regulations are invalid unless modified is not a proper reason for vacating the Court of Appeals judgments which invalidated the regulations. If the Court is satisfied that the Government will modify the regulations regardless of the outcome of the litigation, the writs of certiorari should be dismissed as improvidently granted. On the other hand, if the survival of the regulations is dependent on our disposition of these cases, we should address the merits and resolve the issues which have been fully beiefed and argued. By vacating the judgments below, the Court hands the Government a partial victory as a reward for an apparent concession that its position is not supported by the statute. I respectfully dissent. 7 ELR 20375 | Environmental Law Reporter | copyright © 1977 | All rights reserved |