Commonwealth of Ky. ex rel. Hancock v. Ruckelshaus

• Citation: 497 F.2d 1172
• Decision Date: 05 June 1974
• Docket Number: No. 73-2099.,73-2099.
• Parties: COMMONWEALTH OF KENTUCKY ex rel. Ed W. HANCOCK, Attorney General, Plaintiff-Appellant, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

497 F.2d 1172 (1974)

COMMONWEALTH OF KENTUCKY ex rel. Ed W. HANCOCK, Attorney General, Plaintiff-Appellant, v. William D. RUCKELSHAUS, Administrator of the Environmental Protection Agency, et al., Defendants-Appellees.

No. 73-2099.

United States Court of Appeals, Sixth Circuit.

Argued April 8, 1974.

Decided June 5, 1974.

Ed W. Hancock, Atty. Gen., Commonwealth of Kentucky, David D. Beals, David C. Short, Asst. Attys. Gen., Div. of Natural Resources and Environmental Law Commonwealth of Kentucky, Robert F. Trevey, Atty., Dept. of Natural Resources and Environmental Protection Div. of Air Pollution, Frankfort, Ky., on brief for plaintiff-appellant.

Andrew P. Miller, Atty. Gen. of the Commonwealth of Virginia, amicus curiae, J. Thomas Steger, Asst. Atty. Gen., Richmond, Va., on brief, for the Commonwealth of Virginia as amicus curiae in support of plaintiff-appellant.

Evelle J. Younger, Atty. Gen., Robert H. O'Brien, Asst. Atty. Gen., Nicholas C. Yost, Jan. E. Chatten, Deputy Attys. Gen., Los Angeles, Cal., on brief, for the California Attorney General as amicus curiae in support of the plaintiffs-appellants' interpretation of the Clean Air Act.

John L. Hill, Atty. Gen. of Texas, Larry F. York, First Asst. Atty. Gen., Philip K. Maxwell, Asst. Atty. Gen., Austin, Tex., on brief, for the State of Texas as amicus curiae in support of plaintiffs-appellants.

Beauchamp E. Brogan, Associate Gen. Counsel, Knoxville, Tenn., for defendants-appellees, Tennessee Valley Authority, Aubrey J. Wagner, Lynn Seeber, J. L. McPherson and T. E. Cavaniss; Robert H. Marquis, Gen. Counsel, Herbert S. Sanger, Jr., Deputy Gen. Counsel, Justin M. Schwamm, Asst. Gen. Counsel, Tennessee Valley Authority, Knoxville, Tenn., on brief.

Robert L. Klarquist, Dept. of Justice, Wallace H. Johnson, Asst. Atty. Gen., George Long, U. S. Atty., Louisville, Ky., Jacques B. Gelin, Robert L. Klarquist, Attys., Dept. of Justice, Washington, D. C., on brief, for the Federal defendants-appellees.

Before WEICK and LIVELY, Circuit Judges, and CECIL, Senior Circuit Judge.

LIVELY, Circuit Judge.

This case is concerned with the Clean Air Act Amendments of 1970 (the Act), and more particularly with the meaning of section 118 thereof, 84 Stat. 1689, 42 U.S.C. § 1857.¹ The Attorney General of Kentucky brought this action against various federal departments and agencies which operate facilities within the State that employ pollutant emitting equipment. Included among the defendants were the Secretary of the Army and various Army officers, the chairman of the Board of Directors of the Atomic Energy Commission (AEC) and various officials of that agency and the managing officers of the Tennessee Valley Authority (TVA). The complaint recited that a "Kentucky Plan" for implementation of air quality standards had been adopted, and approved by the Environmental Protection Agency (EPA), and that the plan included a regulation which requires the owners and operators of air pollutant emitting equipment to apply for and obtain from the Kentucky Air Pollution Control Commission (Commission) "a permit to operate their air contaminant equipment."² Stating that the defendants had refused to apply for and obtain such permits, the plaintiff asked for an order directing them to do so and that they be permanently restrained from refusing to comply with the provisions of section 118 of the Act.

Also named defendants were the Administrators of EPA and the regional administrator whose responsibility includes Kentucky. It was complained that these defendants had refused to initiate appropriate actions against the previously named defendants to require their compliance with the permit requirements of the Kentucky Plan. It was alleged that section 113 of the Act³ requires the EPA administrators to proceed in the manner requested. The relief sought against these defendants was entry of an order directing them to commence an action under section 113 to obtain full compliance by the other defendants with the permit requirement. In addition, a declaratory judgment was sought to the effect that the defendant operators of federal facilities do not have the right to refuse to comply with the permit regulations of the Kentucky Plan and that the EPA defendants, with knowledge of widespread violations by the other federal defendants, do not have a right to fail to initiate appropriate action under section 113.

All defendants filed motions to dismiss or for summary judgment. The plaintiff also filed a motion for summary judgment and various parties filed affidavits in support of their motions. Although plaintiff did not concede that all the federal facilities in Kentucky are in compliance with air pollution emission standards or have adopted schedules which will bring them into compliance, the district court determined that resolution of this issue was not required for decision of the case. Upon consideration of the cross-motions, District Judge James F. Gordon granted summary judgment to the defendants and dismissed the action.

The issues on appeal are narrow. In the first place, the appellant contends that section 118 of the Act "requires that those persons in charge of the administration and operation of air contaminant sources owned or operated by the federal government comply with all state requirements respecting the control and abatement of air pollution including Kentucky's permit requirements." The appellees maintain that section 118 requires compliance with substantive provisions of the Kentucky Plan, but does not compel federal officials to obtain state or local permits for the operation of federal facilities. It is the position of the appellant that the permit requirement is substantive in nature because the Kentucky Plan is so formulated that the State cannot meet its primary responsibility under the Clean Air Act without the use of permits. To this the appellees respond that they are willing to supply, and in fact have supplied, the information sought on the permit application form, but will not seek the permit itself.

It is agreed by the parties that section 304 of the Act⁴ provides a means by which the United States may be sued for violation of an emission standard or limitation, or order with respect thereto. The appellant argues that this provision only permits abatement actions and that the Commission needs to be able to prevent air pollution as well as abate violations. It is maintained that the permit device is the only means by which the State can exercise preventive control over polluters. The language of section 304 does not require that suit be deferred until an actual violation of an established emission standard occurs. Sub-section (f) (1) clearly permits the filing of an action for violation of a schedule or timetable of compliance. Thus, it is not necessary under section 304, that the State or other aggrieved party wait until an emission standard is violated to bring suit. It may be done at the first instance where the owner or operator of polluting equipment fails to meet a level prescribed in a schedule or timetable of compliance. Such an action would surely be preventive in nature.

Both the doctrine of sovereign immunity and the application of the Supremacy Clause of the Constitution are involved in the decision of this case. We view the action against the non-TVA defendants as a suit against the United States. The sovereign can only act through its agents, and the relief sought in this case does not seek to impose personal liability of the named defendants, but rather would affect public administration Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688-689, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); Land v. Dollar, 330 U.S. 731, 738, 67 S. Ct. 1009, 91 L.Ed. 1209 (1947). Every declaration of a waiver of sovereign immunity must be strictly construed. United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Section 118 contains no waiver and that included in section 304 does not permit suit to require owners and operators of federal facilities to obtain permits from a state agency in order to continue to operate. The two sections are part of the same Act and must be read together. By failing to include a separate waiver of immunity in section 118 Congress indicated that compliance with its provisions may be compelled by suit only to the extent permitted by section 304. This section provides ample means for enforcement of air quality and emission standards.

The TVA defendants do not claim sovereign immunity from suit, but do maintain that the Supremacy Clause of the United States Constitution exempts federal agencies and officials in the performance of their duties from state and local regulations. From the time of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), this has been a settled principle of our federalism. See Mayo v. United States, 319 U.S. 441, 445-448, 63 S.Ct. 1137, 87 L.Ed. 1504 (1943). The doctrine has been held applicable to TVA. Posey v. Tennessee Valley Authority, 93 F.2d 726, 727 (5th Cir. 1937). The appellant argues that Congress determined in this instance to submit federally owned and operated facilities to state regulation by providing, in section 118, that agencies of the federal government "shall comply" with state requirements. This does not necessarily follow. An examination of the legislative history of the 1970 Act reveals no congressional intent to subject federal instrumentalities and agencies to state administrative regulations. Separate House and Senate bills were interpreted in the respective Reports as requiring federal agencies to comply with applicable "emission standards" and the Joint Conference Report stated that the House bill and Senate amendment which became section 118 "declared that Federal departments and agencies should comply with applicable standards of air quality and emissions." This language appears to us to refer only to substantive requirements and...