Supreme Court Refuses to Define EPA's Power to Require State Enforcement of Clean Air Act Transportation Controls

To the apparent dissatisfaction of all the parties involved, the Supreme Court on May 2, 1977 refused to resolve the issue of whether the Clean Air Act empowers the Environmental Protection Agency (EPA) to require states under pain of federal enforcement sanctions to implement EPA-drafted transportation controls as part of their air quality implementation programs. Seizing upon an admission in EPA's brief that the agency's transportation control regulations require substantial modification, the Court, in a per curiam opinion,¹ simply vacated and remanded for consideration of mootness decisions by the Fourth,² Ninth,³ and D.C. Circuits,⁴ which held the regulations illegal for exceeding EPA's statutory authority and suggested that they violated the states' Tenth Amendment rights as well. The Court's failure to reach the merits of the issue basically continues the legal uncertainty that has stymied progress in the implementation of urban transportation controls, which are necessary for meeting the health-related primary ambient air quality standards in many major metropolitan areas.

Background

In 1973, the D.C. Circuit Court of Appeals held that EPA lacked authrity to allow states to delay submission of transportation control programs for areas in which such measures would be necessary for timely attainment of the ambient air quality standards as part of their air [7 ELR 10098] quality implementation plans.⁵ Pursuant to this decision, the EPA Administrator disapproved state implementation plans to the extent that they did not include such controls where necessary and promulgated substitute portions of those plans that required the states to enact or adopt regulations for the establishment, administration, and enforcement of a number of control mechanisms. The failure of a state to enact, administer, or enforce the EPA-imposed programs therefore became in itself a violation of the implementation plan for which the state would be subject to federal enforcement proceedings under § 113(a)(1) of the Clean Air Act.⁶

Decisions Below

Several states, including Pennsylvania, Arizona, California, Maryland, Virginia, and the District of Columbia, petitioned in the courts of appeals for review of these EPA transportation control rules. The Third Circuit was the first to rule on the point and upheld EPA's approach as both within the scope of its statutory authority and the federal power to regulate commerce.⁷ The next three decisions, however, all went against the agency.

The Fourth⁸ and Ninth⁹ Circuits both held that § 113 does not give EPA the power to impose the adoption of particular transportation controls on states under pain of civil sanctions and penalties. Both courts emphasized that such an interpretation of the Act was necessary to avoid raising fundamental constitutional issues.¹⁰ Although both courts disclaimed the need to reach these constitutional questions, they gave clear indications that the EPA regulatory scheme went beyond the limits of federal power under the Commerce Clause and violated the states' rights under the Tenth Amendment.

These decisions were followed by a D.C. Circuit ruling¹¹ which subscribed to the view that Congress did not intend to give EPA the power to require states to enact statutes or regulations for air pollution control or else face federal sanctions under § 113. However, the court also adopted the position that state highways and bus systems are properly subject to federal regulation under the Commerce Clause as "indirect sources of pollution." The court said that the requirements for state designation of exclusive bus lanes and purchasing additional buses and the prohibition against state registration of any vehicle that does not comply with applicable inspection and maintenance requirements were therefore valid. Because the provision that the state itself adopt, administer, and enforce the EPA-drafted inspection and maintenance program involved a drastic intrusion on state sovereignty, the court held that the Tenth Amendment served as an additional ground for invalidating that portion of the EPA regulations.

The Supreme Court's Ruling

EPA petitioned the Supreme Court for certiorari in the latter three cases; the writs were granted on June 1, 1976¹² and oral argument took place on January 13, 1977.EPA's basic contention was that the states, as indirect polluters because of their construction and operation of state highway systems, were subject to federal regulation under the Clean Air Act. Thus, the transportation control requirements imposed on the states by EPA were not unconstitutional intrusions into the realm of state sovereignty protected by the Tenth Amendment. The states, on the other hand, relying heavily on the Court's recent decision in National League of Cities v. Usery,¹³ argued that the requirement for state adoption and administration of EPA-imposed transportation controls was a federal usurpation of state governmental authority which amounted to an unconstitutional interference with state sovereignty. In the states' view, the only sanction available to EPA under the Act in the event of state failure to enforce federal transportation controls is EPA's assumption of the administration and enforcement of those controls directly against violators.

On May 2, 1977, the Court side-stepped the contentions of both parties on the merits and disposed of the case by vacating and remanding the three courts of appeals decisions for consideration of mootness in light of EPA's admission, both in its brief and at oral argument, that the transportation control regulations required essential modification. EPA had conceded the necessity of removing all requirements that the states adopt aspects of the transportation control program by regulation, saying that the agency itself would draft and promulgate these measures for each state. Yet the agency continued to insist that it has the power to require the states to enforce these federally drafted and issued provisions or face federal enforcement sanctions under § 113. Reviewing the EPA regulations before revision would, the Court stated, "amount to the rendering of an advisory opinion."

Justice Stevens argued in dissent that the case was clearly not moot since EPA had not yet rescinded the regulations. In his view, EPA's apparent admission that portions of the regulations are invalid is no reason to vacate three lower court judgments holding them invalid. If the Court believed EPA would modify the regulations regardless of the outcome of the litigation, argued Justice Stevens, then the proper course of action would be to dismiss the writs of cetiorari as improvidently granted. Otherwise, the Court should have addressed the merits and resolved the issues which had been fully briefed and argued.

[7 ELR 10099]

Conclusion

TheCourt's failure to resolve the uncertainty regarding EPA's power to require the states to enforce transportation control measures for air pollution control purposes disappointed almost everyone involved in the litigation and, as Justice Stevens pointed out, is open to criticism on both logical and legal grounds. By ducking the merits, the Court only postponed its day of reckoning with the difficult task of delineating the boundaries of federal power and state sovereignty in the context of the complicated regulatory structure established by the Clean Air Act. Moreover, this postponement comes at the expense of a further lengthy delay in full implementation of transportation controls under the Act while EPA develops and promulgates revised regulations and the rules are once again tested on the same basic legal points, first in the courts of appeals and finally in the Supreme Court.

1. Environmental Protection Agency v. Brown, 45 U.S.L.W. 4445, 7 ELR 20366 (May 2, 1977).

2. Maryland v. Environmental Protection Agency, 530 F.2d 215, 5 ELR 20651 (4th Cir. 1975.)

3. Brown v. Environmental Protection Agency, 521 F.2d 827, 5 ELR 20546 (9th Cir. 1975).

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

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

6. 42 U.S.C. § 1857c-8(a)(1), ELR 41206.

7. Pennsylvania v. Environmental Protection Agency, 500 F.2d 246, 5 ELR 20618 (3d Cir. 1974).

8. Maryland v. Environmental Protection Agency, 530 F.2d 215, 5 ELR 20651 (4th Cir. 1975).

9. Brown v. Environmental Protection Agency, 521 F.2d 827, 5 ELR 20546 (9th Cir. 1975).

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

11. District of Columbia v. Train, 521 F.2d 971, 6 ELR 20007 (D.C. Cir. 1975). See comment, The Environmental Protection Agency's Transportation Controls Still Face Constitutional Road Blocks, 6 ELR 10014 (Jan. 1976).

12. 426 U.S. 904 (June 1, 1976).

13. 426 U.S. 831 (June 1, 1976).