District of Columbia v. Costle

No. 74-1013 (D.C. Cir. August 19, 1977)

Pursuant to the Supreme Court's remand in Environmental Protection Agency v. Brown, 7 ELR 20375, the Court of Appeals for the District of Columbia Circuit concludes that petitioner's challenge to the transportation control regulations promulgated by the Environmental Protection Agency (EPA) in 1975 is moot. EPA conceded before the Supreme Court that the disputed regulations were invalid in certain respects and has since modified the regulations to remove requirements that the states adopt regulations or pass legislation for the implementation and enforcement of transportation controls. While petitioner challenges the validity of these modified regulations as well, these new rules are not the subject of this litigation. The original 1975 regulations no longer exist, and no record has been made before the agency concerning the present modified regulations. The old controversy is moot and must be dismissed.

Counsel for Petitioner
Louis P. Robbins, Principal Ass't Corporation Counsel, John C. Salyer, Ass't Corporation Counsel
District Bldg., 14th & Pennsylvania Ave. NW, Washington DC 20004
(202) 629-3864

Counsel for Intervenors Washington Area Bicyclist Ass'n et al.
Joel D. Joseph
Washington Area Bicyclist Ass'n
1520 16th St. NW, Washington DC 20036
(202) 265-4317

Counsel for Respondents
Edmund B. Clark
Department of Justice, Washington DC 20530
(202) 737-8200

Before MACKINNON and ROBB, Circuit Judges and A. SHERMAN CHRISTENSEN,^* United States Senior District Judge for the District of Utah.

[7 ELR 20701]

MACKINNON, Circuit Judge:

In 1975, this court decided District of Columbia, et al. v. Train, 172 U.S. App. D.C. 311, 521 F.2d 971 (1975), which upheld in part and vacated in part transportation control regulations promulgated by the Administrator of the Environmental Protection Agency (EPA). Thereafter, the Supreme Court granted EPA's petition for certiorari which focused on the inspection and maintenance regulations. This court had invalidated such regulations to the extent they required states to administer and enforce EPA-promulgated plans or to pass legislation or regulations concerning such plans, with the exception that the federal government can prohibit the states from registering non-conforming vehicles. 172 U.S. App. D.C. at 334, 521 F.2d at 994. While the case was awaiting argument in the Supreme Court, the EPA conceded that the disputed regulations were invalid unless certain modifications were made. Acting upon that representation, the Supreme Court vacated the judgment of this court in Environmental Protection Agency v. Brown, U.S. , 97 S. Ct. 1635 (1977), and remanded the case to this court for consideration of the question of mootness and other matters consistent with its opinion.

On June 15, 1977, over a month after the Supreme Court's May 2, 1977 decision in Environmental Protection Agency v. Brown, the EPA modified its inspection and maintenance regulations so as to remove (1) requirements that the states adopt regulations, (2) references to state legislative activity, and (3) certain details concerning implementation of the program and other administrative concerns. 42 Fed. Reg. 30504, 30507-09 (1977).

On June 23, 1977, this court ordered the EPA to advise the court whether the regulations at issue in this case were considered by the EPA to have any validity or to be otherwise enforceable. The point of this order was to determine whether the issues of this case are in fact moot.

In its July 15, 1977 memorandum filed with this court, the EPA stated that it believes the modified regulations to be "valid, reasonable and enforceable in their entirety." Memorandum for the Administrator of the Environmental Protection Agency at 4. With respect to other regulations which were not the subject of the Supreme Court case but were invalidated in part in this court's 1975 decision, the Administrator indicated that the Agency was reviewing them and "will probably remove such references [to requirements that the states adopt regulations or to state legislative activity] and requirements or withdraw such regulations." Id. at 5. The Administrator added: "[t]hese regulations will not be enforced until such review is complete." Id.

Virginia and the District of Columbia have responded to the Administrator's memorandum. Both take the position that the modified regulations are invalid in that they still require state action in a manner disapproved by this court. The District of Columbia also states that this controversy is not moot so long as the Administrator promulgates illegal regulations. The District of Columbia has petitioned to review the new regulations. Response of the District of Columbia, at 6. Virginia, however, argues that this court should declare the new modified regulations invalid and discontinue the case.

It thus appears that the regulations at issue in 1975, upon which the record before this court was made, which were taken to the Supreme Court, no longer exist. The record before this court does not deal with the present regulations. The regulations at issue in this case have been modified so as to comply, in some respects, with our 1975 opinion. The Administrator states that he is not enforcing the regulations which were the subject of that opinion. It thus does not appear that there is any reason to continue the litigation begun in 1975.

Clearly, there is controversy as to the validity of the new regulations. However, the new regulations are not the subject of the case argued here and taken to the Supreme Court, and no record has been made before the agency by the parties hereto concerning the present regulations, with all the modifications.

We accordingly conclude that the old controversy is now moot. The appeals are therefore dismissed.

Judgment accordingly.

* Sitting by designation pursuant to Title 28 U.S.C. § 294(d).