Brown v. E.P.A.
| Decision Date | 15 August 1975 |
| Docket Number | Nos. 73-3306,73-3307,73-3305,s. 73-3306 |
| Citation | 521 F.2d 827 |
| Parties | , 31 A.L.R.Fed. 57, 5 Envtl. L. Rep. 20,546 Edmund G. BROWN, Jr., Governor of the State of California, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. TRUSTEES OF the CALIFORNIA STATE UNIVERSITY & COLLEGES, etc., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. CALIFORNIA AIR RESOURCES BOARD et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before WRIGHT, KILKENNY and SNEED, Circuit Judges.
This is a proceeding growing out of numerous petitions for review of certain regulations of the Environmental Protection Agency. Petitioners included the Governor of the State of California, Trustees of the California State University and Colleges, the California Air Resources Board, numerous California cities and counties, private business concerns, and others. Certain of these petitioners filed consolidated briefs in which certain constitutional questions were raised. In due course, the Agency moved to expedite the hearing with respect to these constitutional issues. This motion was granted. Those petitioners seeking to present constitutional issues thereafter were directed to appear at a prehearing conference pursuant to Rule 33, Fed. R. App. P., at which the issues sought to be raised were identified and the time to be allowed for oral argument was fixed. At this prehearing conference, the petitioners were informed that this Court contemplated entering a judgment regarding the constitutional issues pursuant to Rule 54(b), Fed. R. Civ. P., prior to a hearing on, or disposition of, such other issues as were raised by the petitioners. Oral argument on the constitutional issues has been heard and our disposition of them is set forth herein. Our jurisdiction to hear these petitions is based on Section 307(b) of the Clean Air Act. 1
The controversy between the petitioners and the Administrator has its roots in the Clean Air Amendments of 1970. 2 Under these Amendments, California was required to submit for the approval of the Administrator a state plan providing for the implementation, maintenance, and enforcement of national ambient air quality standards, 3 including, if necessary, land-use and transportation controls. 4 California complied by submitting its plan on February 21, 1972. 5 The Administrator approved this plan in part and disapproved it in part on May 31, 1972. 6 Following a further revision by California and partial approval by the Administrator, there were promulgated rules by the Administrator on September 22, 1972, applicable to certain aspects of air pollution control. 7 These rules, however, did not purport to control photochemical oxidants.
This omission led to City of Riverside v. Ruckelshaus, 4 E.R.C. 1728 (C.D.Cal.1972), a suit in the District Court for the Central District of California, in which the Administrator was ordered to promulgate regulations to control photochemical oxidants, including all necessary transportation controls and land-use controls, not later than January 15, 1973. The Administrator thereafter issued such regulations but, pursuant to discretion recognized by the court in City of Riverside, extended the time within which the national primary standard for photochemical oxidants in California could be attained for two years. 8
Such extensions were held impermissible under the terms of the Clean Air Act in National Resources Defense Council, Inc. v. Environmental Protection Agency, 154 U.S.App.D.C. 384, 475 F.2d 968 (1973). The court directed the Administrator to inform the states which had not submitted an implementation plan enabling them to meet the primary standard by May 31, 1975 to submit such plans, including but not limited to land-use and transportation controls, not later than April 15, 1973. California failed to submit the required plan and the Administrator disapproved its previous plan because it did not provide for attainment and maintenance of the national standards for photochemical oxidants. 9 Thereafter, the Administrator promulgated a transportation control plan for California 10 which, together with the regulations promulgated pursuant to the mandate of the court in City of Riverside supra, covered all of California's Air Quality Control Regions.
After concluding that attainment of the required ambient air quality standard for photochemical oxidants and carbon monoxide must be deferred until 1977 because the necessary technology or other alternatives are not available, 11 the Administrator's plan contemplated, among other things, the reduction of gasoline sold within the Los Angeles, San Francisco, Sacramento Valley, San Joaquin Valley and San Diego Regions; the operation by the State of California of an inspection and maintenance program designed to reduce emissions from automobiles; limitations to be imposed by the State on the use of motorcycles; the institution by the State of an oxidizing catalyst retrofit program; control of dry cleaning solvent vapor losses; the imposition of surcharges on parking spaces; the development of a procedure of review and approval of construction or modification of parking facilities; the establishment by the State of a computer-aided carpool matching system; and the fixing by the State of certain preferential bus and carpool lanes. 12 This plan specifically directed the State of California to undertake those tasks assigned to it, to report its compliance to the Agency, and, in the case of the inspection and maintenance program, to report the date by which the State would recommend any needed legislation and to submit "(a) signed statement from the Governor and State Treasurer identifying the sources and amounts of funds for the program" and the "text of needed legislation" if existing legislation does not authorize the funds which the program will require. 13 Other miscellaneous duties were imposed upon the State. 14 The Agency has made it clear that it believes it has the legal authority to bring civil actions or seek penalties against the states which fail to comply with its regulations. 15
At least 208 parties petitioned this Court for a review of these actions within the 30-day period allowed by the Clean Air Act. 16 Many of these have been dismissed, but a large number are currently pending. In addition to certain revisions, the Administrator has suspended indefinitely the regulations pertaining to management of parking supply 17 and has withdrawn all parking surcharge regulations. 18 The indefinite suspension of the parking management regulations has enabled us to dismiss without prejudice a number of petitions which were directed to the validity of these regulations. 19
Nonetheless the Administrator insists that the remainder of his regulations constitute a valid exercise of his authority and that his directions to the State of California contained therein must be obeyed. In keeping with this view, the Administrator on April 11, 1975 dispatched to California a "Notice of Violation" pursuant to Section 113(a)(1) of the Clean Air Act 20 for failure "to submit the compliance schedule or the adopted regulations establishing the inspection and maintenance program" required by the Administrator's regulations.
The Administrator, however, suggests that a determination regarding his authority under the Clean Air Act and the Constitution is not ripe at the present time because he has not instituted as yet the procedures necessary to invoke sanctions against the State of California. The sanctions include, the Administrator insists, injunctive relief, 21 imposing a receivership on certain state functions, 22 holding a state official in civil contempt with a substantial daily fine until compliance is secured, 23 and requiring a state to allocate funds from one portion of its budget to another in order to finance the undertakings required by the Agency. 24 The Agency disclaims any authority to seek criminal penalties against state legislators. 25 It also indicates that in the final analysis the fashioning of sanctions is within the discretion of the appropriate court. We do not believe any doctrine of ripeness or exhaustion of administrative remedies should preclude our determination of the issues raised in this proceeding by the State of California and others regarding the authority to impose the regulations with respect to which these petitions for review were filed. Such issues must be determined in this proceeding for it is unlikely they could be raised "in a civil or criminal proceeding for enforcement." 26 Moreover, the orderly administration of the Clean Air Act requires that the serious questions to which the parties have addressed themselves be resolved as expeditiously as possible.
The position of the State of California and the other petitioners in this proceeding is simply that the Clean Air Act does not authorize the Administrator to impose sanctions on the State or its officials for failure to comply with the regulations here being reviewed, and that any such attempt based on the Commerce Power would be unconstitutional. While we do not feel it necessary to embrace fully California's position, we do believe that the meaning of the Clean Air Act, insofar as the imposition(s) of sanctions is concerned, is sufficiently ambiguous to permit us to interpret it in a fashion that avoids the constitutional issues. Accordingly, we hold that the Clean Air Act does not authorize the imposition of sanctions on a state or its officials for failure to...
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