ELR Citation: ELR 20793
No(s). 73-2766 (5th Cir. Oct 14, 1974)

The Fifth Circuit Court of Appeals reverses a district court decision and holds that the Clean Air Act Amendments of 1970 require the Tennessee Valley Authority and the U.S. Army to comply with the permit requirements of the Alabama implementation plan before operating equipment which causes air pollution. Section 118 of the Amendments effectively conveys a congressional intent that federal facilities are to be treated equally with private facilities in the scheme of control established under the statute, and the scheme of the Act as a whole supports the conclusion that federal facilities are subject to state permit requirements. The court expressly declines to follow a contrary ruling by the Sixth Circuit in Kentucky v. Ruckelshaus (4 ELR 20484), noting that an examination of the legislative history of §118 does not support the Sixth Circuit's view of the meaning of that provision. Defendants' contentions that their facilites are exempt from state permit requirements on grounds of the Supremacy Clause and sovereign immunity are mistaken, since Congress may authorize the subjection of federal facilities to state regulation, and §118 constitutes such an authorization. The court also rules that Executive Order No. 11752, which disclaims requiring federal facilities to comply with state pollution control procedures, is neither an authoritative administrative interpretation of §118 nor a blanket exemption of all federal facilities from state permit requirements.

Counsel for Plaintiffs
Myron H. Thompson Asst. Attorney General
250 Administrative Building
64 N. Union Street
Montgomery, Ala. 36104

Counsel for Amici Curiae in Support of Plaintiffs
Phillip K. Maxwell Asst. Attorney General
P.O. Box 12548
Capitol Station
Austin, Tex. 78711
David C. Short Asst. Attorney General
309 Shelby Street, Rm. 111
Frankfort, Ky. 40601

Counsel for Defendants
Robert H. Marquis General Counsel
Tennessee Valley Authority Knoxville, Tenn. 37601

Larry G. Gutterridge
Department of Justice
Washington, D.C. 20530