Brown v. E.P.A.

• Decision Date: 23 December 1977
• Docket Number: 73-3307 and 77-2558,Nos. 73-3306,73-3305,s. 73-3306
• Parties: , 8 Envtl. L. Rep. 20,140 Edmund G. BROWN et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. PEOPLE OF the STATE OF CALIFORNIA ex rel. Evelle J. YOUNGER, Attorney General, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 665

566 F.2d 665

11 ERC 1161, 8 Envtl. L. Rep. 20,140

Edmund G. BROWN et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

PEOPLE OF the STATE OF CALIFORNIA ex rel. Evelle J. YOUNGER, Attorney General, Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 73-3306, 73-3305, 73-3307 and 77-2558.

United States Court of Appeals Ninth Circuit.

Dec. 23, 1977.

Joel S. Moskowitz (argued), Sacramento, Cal., M. Weinberger, San Francisco, Cal., for petitioners.

Neil T. Proto (argued), Washington D. C., Michael Graves (argued), San Francisco, Cal., for respondent.

On petition to Review Actions of the Administrator of the Environmental Protection Agency.

Before WRIGHT, KILKENNY and SNEED, Circuit Judges.

SNEED, Circuit Judge:

This case in a somewhat more expanded form has been before this court previously. See Brown v. Environmental Protection Agency, 521 F.2d 827 (9th Cir. 1975), vacated 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166, (Brown I ). There we held that neither section 113(a)(1) nor section 113(a)(2) of the then existing version of the Clean Air Act, 42 U.S.C.A. § 1857c-8(a)(1) and (2), 1977 Cum.Ann. Pocket Part, authorized the Administrator to impose sanctions against the State of California and its officials, including Governor Brown, for failing to comply with the directions contained in certain regulations designed to reduce air pollution by automobiles and other types of vehicles which use California's streets and highways. These regulations are listed at 521 F.2d 827, 831. Our holding rested on our interpretation of the Clean Air Act and was influenced heavily by the serious constitutional issues which we believed a contrary interpretation necessarily would encounter. Except as modified herein, we continue to regard, or once more adopt if necessary, our opinion in Brown I as the law of this Circuit.

The Solicitor General's petition for certiorari challenged our holding only with respect to the regulation requiring state inspection and maintenance programs. 40 C.F.R. § 52.242 (Revised as of July 1, 1976). His petition was granted by the Supreme Court more or less contemporaneously with its grant of petitions with respect to cases from the Fourth and the District of Columbia Circuits involving substantially similar inspection and maintenance regulations as well as certain regulations held proper and valid by the District of Columbia Circuit. See EPA v. Brown, 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166 (1977); District of Columbia v. Train, EPA, 172 U.S.App.D.C. 311, 521 F.2d 971 (1975), vacated 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166; Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975), vacated 431 U.S. 99, 97 S.Ct. 1635, 52 L.Ed.2d 166.

The relatively narrow scope of the Solicitor General's challenge was further narrowed when prior to argument before the Supreme Court he informed the Court that certain bus purchase regulations involved in the District of Columbia Circuit decision were to be repealed and thus should not be treated as before the Court. Even this remaining small target was removed when it was conceded by the Government that the inspection and maintenance regulations to be valid should be amended to delete "all requirements that the State submit legally adopted regulations," 431 U.S. at 103, 97 S.Ct. at 1637. The Supreme Court, not wishing to render an advisory opinion with respect to regulations not then in existence, vacated the judgments of the respective Courts of Appeal and remanded the cases "for consideration of mootness and such other proceedings as may be consistent with this opinion." 431 U.S. at 104, 97 S.Ct. at 1637.

The Administrator of the Environmental Protection Agency promulgated on June 8, 1977 a revised regulation pertaining to the inspection and maintenance program California was required to establish. The revised regulation is set forth in the margin in a manner in which the portions deleted by revision appear within brackets. ¹ On July 19, 1977, this court, pursuant to the Supreme Court's remand, set a date for a hearing to address two issues:

(1) Whether this case in whole or in part, is either now moot or presently not ripe for decision;

(2) Assuming this case, in whole or in part, is neither not moot nor unripe for decision, why such ripe and not moot issues should not be decided in accordance with the reasoning employed in our opinion in Brown v. EPA, 521 F.2d 827 (9th Cir. 1975).

A few days prior to the above order, July 13, 1977, the State of California filed in this court a petition for review of agency action, which we numbered No. 77-2558, and in which the State asked that we declare invalid the inspection and maintenance regulations as revised on June 8, 1977. This petition was consolidated with cases which the Supreme Court remanded to us.

The final event of juridical significance which occurred prior to our hearing of these cases and their submission for decision was the enactment by Congress on August 7, 1977 of the Clean Air Amendments of 1977.

We hold that the cases before us are not entirely moot, that each of them is at least partially ripe for decision, and that our decision should be substantially on the same, but not identical, basis as was our opinion in Brown I.

I.

Mootness and Ripeness As To Revised Inspection and

Maintenance Regulations.

The mere recital of the rather quick moving events which affect these cases reveals that there exists a duly promulgated inspection and maintenance regulation applicable to California. This regulation requires the State (1) to "establish an inspection and maintenance program", (2) to "inspect all light duty motor vehicles" at certain intervals, (3) to "apply inspection failure criteria" of a prescribed sort, (4) to "ensure" that vehicles which fail inspection "receive the maintenance necessary" to pass inspection, (5) to begin the first inspection cycle on October 1, 1975, completing it by September 30, 1976, (6) to "designate an agency or agencies responsible" for carrying out the program, (7) to refuse to register vehicles which do not pass inspection, and (8) to submit no later than February 1, 1974 a detailed compliance schedule showing the steps it will take to establish "the inspection and maintenance program."

California at present insists, as it did previously in Brown I, with respect to the inspection and maintenance regulation which then existed, that this regulation exceeds the EPA's statutory authority and that if such authority is provided by the Clean Air Act as amended, it is void because in excess of the power of Congress acting under the Commerce Power. California takes this position although it acknowledges that under the revised regulation it is no longer required to submit to the EPA an advance text of laws and regulations implementing the required inspection and maintenance program. In brief, California contends that the Administrator's June 8, 1977 amendments achieved no more than a cosmetic change of the regulation previously before the Supreme Court, that it currently refuses to comply with the amended regulation and, as a consequence, is now in default unless we find the amended regulation invalid. Thus, as California sees it, there exists a "live" issue in which both parties have a "cognizable interest in the outcome." See Powell v. McCormack, 395 U.S. 486, 496-97, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1968). California contends that the case is neither moot nor unripe insofar as it pertains to the revised inspection and maintenance regulation.

EPA does not challenge this conclusion. It points out that its amended regulation has "removed any requirement that the State adopt regulations and any reference to state legislative activity," Memorandum For The Environmental Protection Agency, Nos. 73-3306, 73-3305, 73-3307, and that there remain other regulations invalidated by Brown I, some of which contained references to state legislative activity and the necessity for the state regulations and some of which did not, that were "rehabilitated" by the Supreme Court's vacation of our judgment in Brown I. The asserted validity of at least those regulations which avoid mentioning legislative activity and the necessity to promulgate regulations provides, according to the EPA, a ripe and not moot controversy.

Although the history of Brown I indicates that assertions by the EPA of its intention to adhere steadfastly to a specific position should be viewed with mild skepticism, we must accept its current assertions, at least for the purposes of determining mootness and ripeness of the controversy involving the revised inspection and maintenance regulations. Therefore, it is clear that the State of California and the EPA have taken directly opposing views with respect to the validity of the inspection and maintenance regulations as amended on June 8, 1977. It follows that the cases before us to the extent they concern these regulations are not moot and are ripe for decision.

II.

Disposition of the Controversy Pertaining to the Revised

Inspection and Maintenance Regulation.

EPA's deletion of all references to state legislative activity and the necessity to adopt regulations clearly could not have been for the purpose of establishing that the revised regulations do not impose upon the State of California substantial duties. The recital of commands previously set forth unequivocally demonstrates that to comply the State would be compelled to undertake significant duties which in the nature of government would require the promulgation by the State of juridically effective orders in one form or another. While it is true that the revised regulation leaves to the State a wide range of choice in selecting the means by which it will discharge its duties, even the EPA acknowledges, as it must, that the revised inspection and maintenance regulation "imposes an affirmative duty on the State of California." Memorandum For The Environmental Protection Agency, p. 15.

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