The Environmental Protection Agency's Transportation Controls Still Face Constitutional Roadblocks

Four court of appeals have now considered the validity of the Environmental Protection Agency's attempt to compel the states to administer and enforce transportation controls under the Clean Air Act. The split in judicial authority which the first three decisions produced was analyzed in a previous ELR Comment.¹ The D.C. Circuit's recent ruling,² while kinder to EPA's regulatory approach than were the Fourth³ and Ninth⁴ Circuit decisions which preceded it, still leaves the law on this point very uncertain and the viability of the whole idea of transportation controls under the Clean Air Act open to serious question.

Evolution of EPA's Regulatory Scheme

In order to understand the practical and constitutional stakes which have produced such judicial diversity, a brief factual review is in order. Urban transportation controls under the Clean Air Act have thus far had a rocky road. Responding to the D.C. Circuit's 1972 ruling⁵ that the agency lacked authority to allow states to delay submission of transportation control plans, EPA initially promulgated relatively stringent proposals for reducing automobile use — measures such as gasoline rationing, cuts in parking supply, and imposition of parking surcharges. These proposals had barely surfaced when they were shelved⁶ indefinitely by the agency in response to popular and congressional opposition. Congress even went so far as to enact an express prohibition on parking surcharges.⁷

EPA's prudent response was to shift from measures such as these, designed to discourage automobile use directly, to less controversial approaches such as additional buses, bus and carpool lanes and bike paths designed instead to discourage such use indirectly by encouraging use of alternative modes of transportation. All along, EPA has also proposed less drastic measures for motor vehicles themselves, such as inspection and maintenance of all vehicles, followed by vehicle retrofit where necessary, aimed at reducing the pollutant emission levels of vehicles already on the road.

These control mechanisms were inserted in state air quality implementation plans, which the Administrator promulgated after disapproving the states' initial versions under § 110 of the Clean Air Act. Specifically, the Administrator included in each EPA-promulgated plan requirements that the state adopt regulations establishing, administering and enforcing transportation control programs; the programs were to include purchase of additional buses and designation of exclusive bus lanes, construction of bicycle paths, and establishment of inspection, maintenance, and vehicle retrofit requirements. The failure of a state to enact, administer or enforce the EPA-imposed programs thus became in itself a violation of the implementation plan for which the state could be subject to federal enforcement proceedings under § 113. The regulations were designed to force the states to shoulder a major part of the responsibility [6 ELR 10015] for enforcing these unpopular measures, a task which would be far beyond EPA's capacity to accomplish alone.

EPA's Authority Under the Clean Air Act

Like several others, the states of Maryland and Virginia, the District of Columbia,⁸ and a number of local governmental bodies petitioned in the court of appeals for review of the EPA's rules governing the National Capital Region, particularly attacking the provisions requiring enactment of regulations. The court accepted plaintiffs' argument that EPA may not require states to enact statutes and regulations for air pollution control or else face federal enforcement sanctions under § 113 of the Act. Such an approach, held Judge MacKinnon, who wrote for himself and Judges Robb and Christensen, clearly was not contemplated by Congress when it enacted the statute. This view coincides with those expressed by the Fourth⁹ and Ninth¹⁰ Circuits, the two courts of appeals which have taken a narrow view of the extent of EPA's regulatory authority vis a vis the states. But Judge MacKinnon also accepted the Third Circuit's theory¹¹ that the states, in constructing and maintaining a highway system, in operating mass transit systems, and in registering motor vehicles for use, are engaging in pollution-creating activities which EPA can properly regulate under the Clean Air Act and the federal commerce power.

Following an examination of the Act's language and structure, the court held that by establishing this regulatory scheme rather than promulgating his own regulations directly controlling sources of air pollution after finding an initial state plan inadequate, the EPA Administrator exceeded the authority conferred on him by § 110(c) of the statute. According to Judge MacKinnon, the logical interpretation of the procedures established in § 110 is that Congress intended regulations promulgated by the Administrator under § 110(c) in place of a disapproved state implementation plan to be actual substantive regulations which the federal government directly enforced against sources of air pollution within that state. This scheme follows the well-established federal pattern authorizing the promulgation of federal regulations to govern an area subject to the federal commerce power in those instances where state enactments do not meet federal standards. If Congress had intended instead to adopt the novel approach of authorizing EPA to order unconsenting states to enact statutes and regulations governing the pollution-creating activities of the general public, it continued, Congress would have clearly stated that intent in the statute. As things stand, nothing in the Act implies that Congress considered federal regulatory power over air pollution so deficient as to require resort to a strategy of ordering states and municipalities to adopt and nforce federally-promulgated regulations.

Judge MacKinnon found further support for this view in a close reading of §§ 113 and 302 EPA had argued that § 113 permits federal enforcement of an applicable implementation plan against any "person" in violation of it, and that states and their political subdivisions are expressly included within that term as it is defined in § 302(e). According to Judge MacKinnon, this establishes only that Congress intended to subject state-operated activities which are direct sources of air pollution to federal regulation, not that it intended to grant EPA power to force states to enact and administer EPA-promulgated transportation control measures with the threat of federal sanctions pursuant to § 113. In addition, that section's procedures and notification provisions give numerous indications Congress did not intend inadequate state performance in adopting, administering or enforcing a plan to be considered, by itself, a "violation" of the plan subject to federal enforcement sanctions. Those portions of EPA's regulations which required the various petitioners to enact vehicle retrofit and inspection and maintenance programs, and to establish bicycle lanes were therefore vacated.

EPA argued, however, that this holding did not necessarily resolve the related but distinct question, that of whether states can be ordered to take actions which implement the federally imposed rules. Judge MacKinnon acknowledged that nowhere in the Act is the Administrator specifically prohibited from forcing the states to administer plans he has promulgated when the plan is directed at a traditional state function such as licensing and registering motor vehicles. According to the court, it is apparent from § 110(a)(2)(6)¹² of the Act and the legislative history that at least in the case of inspection and maintenance programs, Congress did intend the states to be required to cooperate in administering federal transportation control plans. In order to determine whether Congress may constitutionally regulate the states in this manner, and if so, to what extent, Judge MacKinnon therefore undertook an analysis of the limits of federal regulation of state activities under the Commerce Clause.

Limits of the Federal Commerce Power Vis a Vis the States

In enacting the Clean Air Act, Congress clearly determined that air pollution has a substantial effect on interstate commerce and may therefore be subjected to federal regulation under the commerce power. Citing the Third Circuit's decision in Pennsylvania v. EPA¹³ as precedent for upholding this exercise of federal jurisdiction, the D.C. Circuit went on to find that a polluting activity otherwise subject to federal regulation is not exempted from the commerce power simply because it is owned or operated by a state. Judge MacKinnon held that it is immaterial whether the state function being regulated is characterized as "governmental" or "proprietary," and thereby disagreed with the ninth circuit's painstaking effort in Brown v. EPA to show that "proprietary" activities are subject to the federal commerce power while "governmental" functions are not.

Once Congress has properly determined that the [6 ELR 10016] emission of air pollution from motor vehicles has an effect on interstate commerce, it has the power to regulate state activities which generate such pollution either directly or indirectly. Where federal regulations duly adopted pursuant to this power conflict with state practices and regulations, they must prevail under the Supremacy Clause. Thus, the court upheld the Administrator's regulations requiring state construction of exclusive bus lanes and purchases of additional buses. Echoing the view of the Third Circuit, Judge MacKinnon held that state highways and bus systems are properly subject to federal regulations as "indirect" sources of pollution, that is, as factors which influence the use of pollution sources by other parties. These state-owned transportation systems are analogous, according to the judge, to state-operated railroads, which were long ago held subject to federal regulation.¹⁴

The court also upheld as within the federal commerce power provisions in the regulations forbidding the states to register or allow the operation on their highways of any vehicle which does not comply with applicable inspection and maintenance requirements. Judge MacKinnon opined that in so doing the Administrator, acting pursuant to congressional authority, merely prescribed a rule by which commerce on state streets and highways is to be governed. Favoring the rule were its direct relation to activities presently being carried on by the states, and its omission of the specific manner in which the state is to comply. The court noted that a state could comply with the prohibition merely by requiring applicants for vehicle registration to submit a compliance certificate obtained from federal officials or from private mechanics or garages.

Beyond this point, however, the court drew the line. The Administrator cannot compel the states to become involved, against their wishes, in administering the details of the EPA-promulgated regulatory scheme without impermissibly intruding upon state sovereignty. EPA's attempt to require the states themselves to administer the inspection and maintenance program and to establish retrofit programs, including the evaluation and approval of retrofit devices, was seen as going beyond proper regulation by Congress under the Commerce Clause. Such a requirement, according to Judge MacKinnon, seeks instead to "commandeer the regulatory powers of the states, along with their personnel and resources" for administering and enforcing a federal regulatory program. The court doubted the existence of any Supreme Court decisions which hold that the federal government may validly exercise its commerce power by requiring unconsenting states to regulate activities affecting interstate commerce.

In response to the petitioners' further contention that the regulations violate the protection afforded state sovereignty by the Tenth Amendment, the judge found that the Supreme Court has not yet made clear exactly what sort of restraints that constitutional provision places on federal action under the Commerce Clause. An examination of recent case law on the question led the court to the proposition that the Amendment may prevent selection of regulatory methods which constitute "drastic" invasions of state sovereignty where "less intrusive alternatives" are available.¹⁵ In any case, the court had no doubt that the inspection and retrofit regulations involved drastic intrusions on state sovereignty, impairing the states' integrity and their ability to function in a federal system. The Tenth Amendment thus served as an additional ground for striking down those particular rules.

Partial Victory of Further Defeat?

On balance, coming as it did after two appellate court rulings which categorically rejected EPA's regulatory scheme for transportation controls under the Clean Air Act, District of Columbia v. Train represents a victory of sorts for the agency. All three circuits ruling on the question this year have agreed that EPA may not force states to enact, administer or enforce federally-promulgated transportation control plans, and this issue consequently seems all but settled. Still, the D.C. Circuit found the scope of EPA power under the Commerce Clause to be significantly wider than did the Fourth or Ninth Circuits, and implicitly reinforced the Third Circuit's linking of the degree of regulatory power which the federal government may permissibly exercise against the states with the extent of state involvment in the development, operation and maintenance of transportation systems that influence the pollutilng activities of private citizens.

On this point, Judge MacKinnon did voice the criticism that the EPA Administrator, and by implication the Third Circuit, significantly understated the federal government's share of the responsibility for air pollution from motor vehicles. In the judge's eyes, the Administrator's observation, quoted with approval by the Third Circuit in Pennsylvania v. EPA, that the states have contributed to air pollution by adopting transportation policies which encourage the use of motor vehicles fails to acknowledge the undeniable effect of massive federal appropriations for highway construction on increasing automobile usage.

Devising a formula for properly apportioning blame is beside the point, however. The overriding task at present is to formulate federal-state mechanisms which meet the undeniable need for air quality-related transportation controls in certain metropolitan areas, created by the indirect results of a matrix of federal and state transportation policies. This third rejection in a row by an appellate court of EPA's attempt to shift the monumental administrative burden of transportation controls to the states obviously undercuts the viability of the agency's entire regulatory scheme. It is generally conceded that EPA does not have the staff or the money to administer vigorous transportation control plans in all the metropolitan areas which need them.

The D.C. Circuit suggested that what is really needed is state cooperation in the administration of the federal transportation control program, and pointed, as had the fourth circuit, to the conditioning of future federal highway aid to each state on establishment of the 55 mile per hour speed limit¹⁶ on its highways as but one example of the numerous means available to Congress for [6 ELR 10017] obtaining such cooperation. Making new federal grants available to states which agree to develop, enact and administer transportation controls in accordance with federally-promulgated guidelines, or conditioning continued receipt of federal funds for highway construction on such an agreement, for example, would go a long way toward sloving the agency's problem. There is little evidence, however, that Congress will write some form of this time-honored "carrot and stick" mechanism for state administration and enforcement of transportation controls into the Clean Air Act amendments upon which it is presently working.

In upholding EPA's authority to require additional buses and bus lanes, and to prohibit states from registering for operation vehicles which do not conform to applicable inspection, maintenance and retrofit requirements, the D.C. Circuit at least gave the agency something to work with for the time being. Most states have existing safety-related inspection and maintenance programs, and EPA has already indicated interest in the private contractor approach used in many of these states and suggested by Judge MacKinnon as a possible alternative to direct state administration. Under this system, a qualified private mechanic or garage could run the transportation control inspection program, receiving compensation through the system of inspection fees paid by motorists. In fact the two programs could in many cases be integrated simply by adding tests for pollutant emission levels to the checklist for existing state-required inspection.

But in drawing the line delimiting the federal commerce power differently than the other three circuits, and without a really convincing explanation as to why it should go precisely there, the court further confused an already muddled area of the law. On account of this confusion and because of the limits placed on federal regulatory power under the Clean Air Act and the Commerce Clause by the Fourth, Ninth and D.C. Circuits, the larger prognosis for transportation controls under the Act remains grim. The proliferation of divergent judicial views makes it very difficult to implement those measures which have already been developed, and in at least two judicial circuits, the Fourth and the Ninth, EPA will remain totally stymied on the transportation control front without vast infusions of money and personnel so as to be able to administer and enforce all programs itself.

As there are no further petitions for review of this issue pending in the federal courts of appeals, the question is clearly ripe for consideration by the Supreme Court. The justice Department, which is handling the cases for EPA, has finally determined, after a long period of indecision in the face of EPA's strong recommendation that an appeal be taken to petition the Court for certiorari in Brown v. EPA, Maryland v. EPA, and District of Columbia v. Train. As was noted in the earlier ELR Comment,¹⁷ Attorney General Levi expressed doubt at congressional hearings last summer as to the constitutionality of Congress forcing states to adopt federally-promulgated no-fault insurance plans under a proposed national no-fault bill,¹⁸ a regulatory scheme seemingly analogous to that at issue in these cases.

At present EPA's efforts to reduce automobile-generated pollution in metropolitan areas are virtually paralyzed as a result of these divergent appellate court rulings. In view of the seriousness of this result, an expeditious resolution of the controversy, by either judicial or congressional action, is urgently needed.

1. Comment, Circuits Split on Whether EPA May Require a State to Adopt and Enforce Clean Air Act Transportation Controls, 5 ELR 10193 (Nov. 1975).

2. District of Columbia v. Train, 521 F.2d 971, 6 ELR 20007 (D.C. Cir. Oct. 28, 1975).

3. Maryland v. EPA, __ F.2d __, 5 ELR 20651 (4th Cir. Sept. 19, 1975).

4. Brown v. EPA, __ F.2d __, 5 ELR 20546 (9th Cir. Aug. 15, 1975).

5. Natural Resources Defense Council v. EPA, 475 F.2d 968, 3 ELR 20155 (D.C. Cir. 1973).

6. 40 Fed. Reg. 29713 (July 15, 1975).

7. 42 U.S.C. § 1857c-5(c)(2)(B), ELR 41234 (§ 4(b) of ESECA).

8. While the District of Columbia, as a federal entity, does not enjoy the same sovereign status under the Constitution as do the states, the Clean Air Act treats it as a state for the purposes of developing implementation plans.

9. Supra n. 3.

10. Supra n. 4.

11. Pennsylvania v. EPA, 500 F.2d 246, 5 ELR 20618 (3d Cir. 1974).

12. 42 U.S.C. § 1857c-5(a)(2)(G), ELR 41206.

13. Supra n. 11.

14. United States v. California, 297 U.S. 175, 183-85 (1936).

15. Fry v. United States, __ U.S. at __, 95 S. Ct. at 1796 (1975).

16. Emergency Highway Energy Conservation Act, Pub. L. 93-239, 87 Stat. 1046.

17. Supra n. 1.

18. Hearings on S. 354 before the Senate Commerce Comm., 94th Cong., 1st Sess. 496, 502, 504 (1975).