Environmental Protection Agency v. Brown – Oral Argument – January 12, 1977

Media for Environmental Protection Agency v. Brown

Audio Transcription for Opinion Announcement – May 02, 1977 in Environmental Protection Agency v. Brown

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Warren E. Burger:

We will hear arguments next in 75-909, 960, 1050, Environmental Protection Agency v. Brown and the related cases.

Mr. Randolph, after reviewing these briefs, it seems some of the developments that have come in those briefs, it occurs to us that perhaps you and Mr. Lord will have the lion’s share of the two hours we’ve allocated.

You may not need all of that time, and of course you know there is no compulsion to use it just because it’s been allocated.

We leave that up to your good judgment.

Randolph:

Thank you, Mr. Chief Justice, and may it please the Court.

These cases are here on writs of certiorari to the United States Court of Appeals for the Fourth, Ninth and District of Columbia Circuits.

At issue are the Clean Air Act Amendments of 1970 and regulations promulgated by EPA requiring respondents to take certain actions to control motor-vehicle air pollution.

Two of the Courts below, the Ninth and Fourth Circuits, decided the case on statutory grounds, holding EPA’s regulations invalid insofar as they required States to comply with them.

District of Columbia Circuit’s decision is more difficult to summarize.

Basically, it agreed with the EPA that the State as owner of a pollution source — the highways — could be required under the Act to reduce pollution, the State, the Court held, could be required to refuse registration to vehicles exceeding Federal pollution standards; but inspection must be done by the Federal Government.

We petitioned in all three cases, raising the issue whether inspection and maintenance could be required.

The Commonwealth of Virginia cross-petitioned in the District of Columbia case, raising the issue of bus lanes and purchases.

In a decision not being reviewed here, the Third Circuit sustained EPA’s transportation-control regulations against both a statutory and a constitutional challenge.

Before I describe the Act and the regulations and focus the issues somewhat, I’d like to talk a little bit more about what particular subject is involved here, which is air pollution, a topic that this Court referred to in Washington versus General Motors as one of the most notorious types of public nuisance in modern experience.

The chief culprit, or one of the chief culprits, is the automobile, spewing vast amounts of assorted poisons into the air and accounting for by weight, by tonnage, nearly half of all air pollution in the country.

Because of incomplete combustion and evaporation, the internal combustion engine produces carbon monoxide and unburned hydrocarbons.

Because of high temperatures, it oxidizes nitrogen in the air.

In the presence of sunlight, several of these pollutants react in complex ways, producing photochemical oxidants, or what is commonly called smog.

The result is thousands of deaths yearly, millions of days of illness and billions of dollars in health costs and property damage throughout the United States.

One more fact, and I think this is very important to our case, air pollution travels, it moves.

It does not respect State boundaries, it does not stay located in one place.

The Court may have seen an article — I don’t know the truth of it, but it illustrates my point — in last month’s New York Times where it was reported that the vineyards in western New York were being destroyed by air pollution from automobiles in Gary, Indiana.

I think that’s as vivid an illustration as possible; whether it is true or not, I don’t know.

One other fact, in Section 101 of the Act that is in issue here, Congress found that the predominant part of the nation’s population — this is the very first finding in the Act — is located in the rapidly expanding metropolitan areas of the country, which generally cross State borders or are very near State borders.

Now, I don’t think I exaggerate, before I talk about the Act, to say that when Congress legislated in the Clean Air Act, it was doing so and acting for many of the very reasons that the founders met in Philadelphia in 1877 and established the Constitution of the United States.

Let me be explicit.

One of the framers’ main objectives was to create a national system of government whereby one State could not pursue its own selfish interests to the injury and detriment of its sister states and the citizens of its sister states.

I think you all recall one of the most famous statements about why the Constitution met was made by Madison.

He likened New Jersey, sitting between Philadelphia and New York, as a keg tapped at both ends; or North Carolina, sitting between South Carolina and Virginia, as a patient bleeding from both arms.

My point is that in arguing here against national action, because of compulsion on the States, the respondents have to confront the Commerce Clause at its very core.

Randolph:

The air is a national resource; air pollution travels and as I hope to demonstrate in this argument, it is no part of our federalism that the health, the welfare and the property of the citizens of one state have to suffer because surrounding states refuse to take action to combat air pollution stemming from the use of their highways.

Now, in the Clean Air Act Amendments of 1970, Congress recognized that control of air pollution was the primary responsibility of the States.

But strong national action was demanded.

Previous efforts, federal efforts, to combat the mounting crisis had failed.

The history as recounted in the Court’s opinion in Train versus NRDC, suffice it to say here that despite offers of technical and financial assistance to the States, the States had made little progress in meeting their responsibility.

The 1970 Amendments, if I can describe them quickly — the Court had two cases last term dealing with the Clean Air Act, and I will be rather brief in the description — in the 1970 Amendments, the EPA Administrator was required to set air-quality standards at a level that protects against the adverse effects on health and welfare.

Section 110 of the Act sets forth the process for establishing State programs to achieve and maintain these air-quality standards.

Now, exactly how air pollution was to be controlled within a State was left initially to the State itself.

The State was to submit a plan to EPA, which EPA was required to accept if the plan met the broad outline set forth in Section 110 of the Act.

Two of those requirements set forth in 110 are that the State plan contained, where necessary, transportation controls and an inspection and maintenance program.

If the State plan was deficient, EPA would issue a substitute, at least for those parts of the State plan that were deficient.

Although the State plans were due by January of 1972, EPA gave an extension to all the States where transportation controls would be required to meet ambient air-quality standards.

It did this because EPA realized, just like everyone else did, that we had very little experience with transportation controls.

As a matter of fact, that was why we had a problem; however, a Federal Court of Appeals sitting at the District of Columbia Circuit held that the Act did not permit this delay and ordered that the extension of time be rescinded, and EPA complied.

By late 1973, the process of formulating State plans had been completed.

Some of EPA’s final regulations, which in many instances, I might add, reflected State choices — and by that, I mean reflected the choices of the States when they submitted proposals or proposed plans.

Imposed duties on the States with respect to State-owned highways and required the establishment of an emission inspection and maintenance program for vehicles registered by the State.

Now, respondents’ statutory argument in this case is that the 1970 Amendments do not allow compulsion on a State to act to reduce motor-vehicle air pollution; in other words, to put it bluntly, a State can never be in violation of an implementation plan designed to meet air-quality standards.

Well, your argument doesn’t quite go that far, does it?

Randolph:

I think that’s the problem with it.

I mean, don’t they concede that a State can be in violation insofar as municipally owned incinerators or…

Randolph:

That was the point I was about to make.

Yeah.

Randolph:

So if that is true, and I think there is no doubt whatever that States.

And they concede that to be true, do they not?

Randolph:

They concede that.

Therefore, they do not make the broad argument that you just paraphrased.

Randolph:

I think that is the problem with their argument.

A State can be a violator, and I would say the respondents admit it can.

The question then is whether a State, by owning the highways, can be a source of pollution, an owner of a source of pollution which has to comply, like anyone else, with the Clean Air Act’s requirements.

Randolph:

Certainly if the State owns a municipal incinerator, it is clear it is a source of pollution, and it has to comply.

I think that is their position, and the EPA’s position, I think, is clearly set out in our brief and I think it is fundamental to our argument.

The EPA Administrator determined early on before any constitutional issue was raised — this was purely a matter dealing with statute, dealing with legislative histories, the judgment by Administrator, and I don’t think it is open to reasonable doubt — that the States, by owning the highways, own a pollution source and can be required to take action, just like a private source owner can.

Potter Stewart:

But you’ve gone over that pretty quickly as I say they own the pollution sources —

Randolph:

I was getting into it, and I will explain.

The source of the pollution isn’t really the highway, is it?

It is the automobile.

Randolph:

Well, I agree that without automobiles, we would not have air pollution.

Without people driving the automobiles about, we would not have air pollution.Without a highway, we would not have air pollution.

On your theory, the ownership or the control as it exists in some places of the airports and of other sector facilities would open up the same.

Randolph:

Yes, any facility as —

Specifically operated sewers in which the private sector puts effluents.

Randolph:

Any source, — my theory is as long —

Potter Stewart:

In sewers, effluents put in there by private people.

Randolph:

Yes.

Potter Stewart:

Without sparkplugs, you wouldn’t have auto pollution.

Randolph:

That is right.

Without manufacturers of automobiles, we would not have air pollution.

I do not know whether this is properly characterized as a pass-the-buck case, but where does the buck stop?

Does it stop with the automobile manufacturers?

I think Congress said, yes, it does; it stops right there and we are going to regulate them and require them to manufacture cars in a certain way.

They are being required to do that.

Does it stop with the citizen who’s driving the car about?

Well, of course it does; it stops with the citizen.

Who is going to pay for all these in the end?

The citizen is going to have to pay.

Does it stop with the Federal Government?

Yes, it stops with the Federal Government.

The Clean Air Act imposes, I think as the Court said in Train, an incredibly difficult problem of regulation on the Federal Government and money to be spent and so on and so forth.

Does it stop with the States?

Randolph:

The States say no, or at least these four States and the District of Columbia say no, that the Federal Government should do it all.

Well, we don’t think that is the right construction of the Act, and we don’t think that the Constitution requires that result.

We think it is quite a simple proposition that is involved here as far as the EPA’s determination.

Is it unreasonable, as the Administrator found, that when a property owner invites others to engage in certain activities on his property, the owner can be held responsible for the harm caused by those activities?

That is the EPA Administrator’s decision.

The property owner in this case happens to be the State.

The property is the highway.

The persons using them, the invitees or licensees, are the citizens.

Further, and as Mr. Justice Stewart said, we believe the highways are quite analogous to the sewer systems.

In both instances, the polluting matter comes not from the State, it comes from the private citizens; yet a State system of sewage disposal is subject to Federal regulation under the Commerce Clause.

The Court so held in the Sanitary District case.

Potter Stewart:

Well, of course, nobody questions that.

The question here is whether Congress has authorized the Administrator to require the States to enforce his plan.

No one questions the Administrator can promulgate his own plan and enforce it if he finds the State’s plan is not adequate but it is a question of whether he can force the States to enforce it.

Randolph:

Yes, well, I don’t know if I will accept that construction of the Act.

It is not the Administrator forcing the States to enforce his plan.

What it is is forcing the States to comply with his plan, not enforce it.

Potter Stewart:

Well, but provide all of the inspectors and the police and so forth to carry out his plan rather than having the Federal Government provide those people in the implementation of the Federal plan, isn’t it?

Randolph:

Well, that is the choice, I suppose, yes, it may be something different than that.

It may be requiring the State to do this or not having it done at all, depending on what the practical difficulties are of having, for example, a federal highway patrol on the nation’s highways to enforce this.

Potter Stewart:

Well, during the Second World War, we managed to have OPA federal officials in every hamlet during those various times we’ve been at war.

We’ve had draft boards, which, you know, the salutation was, “You’ve been chosen by a board consisting of your friends and neighbors”, and that’s who they were.

Randolph:

Well, I think we pointed out in our reply briefs that the draft — I think this is far afield now; but we used it for another point — the draft in World War II was done by requiring State officials to register the people.

I do not think the question here really is which is the best system, having federal highway patrols for the first time in the country’s history, having federal inspection and maintenance.

The question is whether States have a responsibility here to do this by themselves.

Potter Stewart:

Well, the question is whether Congress has authorized what the EPA Administrator has done.

Randolph:

That is one question.

Potter Stewart:

The first question.

Randolph:

The first question in the case, I agree.

Now, the only response, develop what the EPA Administrator determined.

Randolph:

We set forth in our brief the legislative history; we set forth in our brief the various statements that were made on the floor of Congress.

The only response, I think it is fair to say, that respondents make is that they seek to answer our argument by misstating it.

They argue that Congress could never have intended this, because EPA’s position knows no rational bounds.

One might as well say that pollution from a factory results from State action through, for example, zoning decisions.

I think that is the example they give at, if I’m not mistaken, Page 44 of their brief.

But that ignores the fact that the factory, unlike the highway, sits on private land and if there is one thread running through the entire Clean Air Act, it is that the owner of a source of pollution is responsible, can be made responsible for controlling the pollution.

Warren E. Burger:

If you carry that to its logical conclusion, most of the highways in this country are resting on easements with a diversionary right to the fee owner.

Isn’t that so?

So that if you are talking about the element fee owner, you are talking about the owner of the adjoining land.

Randolph:

Well, I don’t think that’s so, Mr. Chief Justice, that the highways of the country are resting on easements.

I think the highway is taken by eminent domain.

Warren E. Burger:

If it is vacated, it reverts back to the fee owner of the underlying land.

Randolph:

Well, that may be; but the fact is that the States are the ones that have that highway.

States, like a private owner, are the ones that are allowing people to come on it and use it for a certain purpose, and as a result of that pollution is generated.

It would be no different, for example, if the State owned a facility, a municipal incinerator, I suppose; but the State never operated it and invited a private contractor to come on and run the municipal incinerator.

We think that the State in that situation could be regulated and required to control that private contractor, just like if the private contractor had been operating on his own property with his own factory spewing pollution into the air.

Now, they make another point in this regard with which we agree.

They say the States are forced to comply with Federal law, because they have not exercised their police power.

I think that’s accurate.

But all that means is that we would not have Federal legislation under the Clean Air Act if the States had controlled air pollution, it can’t mean anything more than that because, to use the example we’ve been talking about, if the State incinerator is poisoning the atmosphere, it is because the State has not exercised its police power in a way that Congress wanted the State to do it.

Yet respondents admit that such facilities must comply with Federal pollution standards, air-pollution standards.

Now, this brings me to the point, I think, unless the Court has further questions, I probably should mention one thing which is not mentioned in our brief as far as the statutory point is concerned, and I informed respondents’ counsel of the fact that I may mention this.

I think the appearance and the impression the Court may have is this whole idea of requiring States to comply under penalty of Federal law is something that was never talked about very much during the hearings.

That’s not accurate.

The reason we don’t find great debates about that — and I would like to remind the Court, the Clean Air Act passed the Senate 73 to nothing; it passed the House I think 347 to 1 — the reason one doesn’t find great debates about that, I think it’s fair to say, is if the Court examines the hearings, the legislative history, what you’ll find is that they’re filled with statements from cities, from States, from governors, saying, “We need this legislation, we need tough legislation, we need demanding legislation, we need to be required to do these things”.

The fact is, there wasn’t very much opposition.

As a matter of fact, the only opposition I found from a State Representative — and I have to give California credit for consistency — is the statement of Governor Reagan on Page 1300 of the Senate hearings, where he objected to, as he put it, reserving for State and local governments the task and cost of implementing decisions of the Federal Government under threat of fines and punishment if the job is not done to the satisfaction of then-Secretary of HEW, but now EPA Administrator.

Governor Reagan, I might add, added later on in his testimony that, “Yes, I do think, however, that interstate air-pollution regions would benefit from Federal overview to resolve disputes and to prevent inaction in one State imposing pollution problems on the people of a neighboring State”.

That is at Page 1301 of his testimony.

We have 17 states and the District of Columbia in which pollution transportation controls have been required.

Randolph:

I’ve counted up the cities which are either right on the border of a state or within 100 miles of the border of another state, and the number I get is somewhere between 75% and 85% of all the cities where the controls we are talking about here required are of that category, either right on the border of a state or at least within 100 miles of another state.

Now, I don’t want to give the impression that Governor Reagan was the only governor to talk against this.

I might add this, Douglas M. Head — and this again is not cited in our brief — who is the Attorney General of the State of Minnesota, testified on behalf of the National Associations of Attorneys General and stated at Page 1183 of the Senate hearings that, “If a state like my own state of Minnesota, has not adopted the motor-vehicle inspection law”, and they still have not, “we would still” — he was saying what kind of legislation he wanted — “be pretty much compelled to install an inspection program for emission-control devices”.

And without dragging this out too much further, the National Governors Conference, represented by Governor Sergeant of Massachusetts from Page 449 of the Senate hearings to Page 453, testified in favor of the legislation; and I think Governor Sergeant on behalf of the National Governors Conference said at the end of his testimony, “I think the States can’t just shrug their shoulders and say, well, let the Federal Government do it”.

I submit to the Court that that is the position of the respondents in this case.

As far as the statute is concerned, I think we rest on solid grounds and in fact, the Fourth Circuit and the Ninth Circuit said that they were construing the statute only because of constitutional doubts that they had.

Well, let me address those constitutional doubts.

Potter Stewart:

Before you leave the statute, let’s take the simple case of the municipally operated incinerator, which everybody agrees in this case is subject to the statute.

So the Administrator establishes criteria for standards for ambient air, both primary and secondary pollution, and the State comes in with a plan that is found by the Administrator to be deficient insofar as it regulates municipally owned and operated incinerators in the state.

Is it all that clear under the statute that the Administrator can then say to the State, “Your problem is that you don’t have stringent enough laws or ordinances, and so you go and enact those in controlling municipally operated incinerators”.

Randolph:

Well, there’s been a lot of confusion about that, and I think maybe I can clear it up.

First of all, the Administrator’s position in this case before all the Courts of Appeals has not been we can force States to enact laws.

Potter Stewart:

If there, I think it is clear despite the disclaimers that there has been some change of position by the Government in the course of these, I beg to differ with you.

Randolph:

We will not get anyplace arguing about that.

Potter Stewart:

I suppose not.

Randolph:

The fact of the matter is, it is a silly decision if we took it.

I mean, we all know Tenney v. Brandhove gives legislators immunity from failing to — like speech and debate clause.

Potter Stewart:

We’re not talking about forced actions now, we’re talking about…

Randolph:

But the problem here is that what has happened is that regulations that — the EPA Administrator, in imposing these controls, walked in on cat feet.

He didn’t charge in like a buffalo trying to knock the States down, which is the impression I think that one gets maybe from reading the briefs in this case, and we are as responsible for that as anyone else.

What he did is, first of all, he tried to give them extension of time, which he then was cut back by a court and told that, no, you can’t give an extension and then when he was forced to impose controls, he tried to give the States as much leeway as possible.

I mean, he could have gone and put in his regulations details down to that far and said you do it this way and that is precisely the way you have to do it.

Instead, he tried to be moderate, he tried, in imposing something on the State, tried to give the State leeway.

The States had come to him and said, look, we are going to get legislation to do X or, you know, we are going to have this passed in the House.

The EPA Administrator said, “Okay, fine, when you get the legislation, please submit it to me.”

“Please” wasn’t there, I admit.

“Submit it to me, and then you will be in compliance” it is the same with regulations.

We have accepted the D.C. Circuit’s opinion that says that the EPA Administrator, in promulgating a substitute plan for a State, cannot in that plan say the State shall submit regulations doing X.

Instead, the EPA has to put down in as much detail as required what exactly has to be done.

That’s the history behind that, Mr. Justice Stewart, and I think that the impression that has been given is probably, unless I’ve dispelled it, not an accurate one and not one representative of the EPA.

Potter Stewart:

Well, what is the answer, then, to my question?

Let’s assume that the State regulation of these municipal incinerators is deficient in the opinion of the Administrator.

Then what can he do, just as a matter of statutory authority before you get to any constitutional questions?

Randolph:

He can say to the State that the municipal incinerator shall emit no more than X amount of whatever it is emitting.

Potter Stewart:

Now, he has gone much further in this case with respect to the roads and highways, hasn’t he?

Randolph:

I don’t think so.

I think he has gone far less than that, because what he’s done here is try to give the State a lot of leeway.

These regulations are going to have to be re-promulgated.

We were put in the position on the one hand of being told that under the law we couldn’t promulgate any regulations requiring a state to do something; and then in the District of Columbia Circuit, the case was remanded, you remember, to the Administrator.

But what he has done in this case, what he tried to do — and D.C. Circuit, of course, said you can’t do that — is say to the States, well, look, you fill in the details.

He doesn’t say exactly how much pollution we are going to allow on the highways.

He said you set the regulations, you set a certain failure rate for the automobiles being inspected and set up the program and so forth.

Potter Stewart:

That’s much more detail, much more direction to the States, than you told me he could do with respect to the incinerator.

All you said he could do with the incinerator is just reduce the amount of these particulate pollution-causing materials.

Randolph:

Well, I think what we’re talking about here is something very analogous to a court exercising its equity power, I don’t claim the Administrator of EPA has any such authority; but if you recall when you’re issuing injunctive orders requiring certain things to be done, the first one sometimes is very broad, the next one gets a little narrower, and the next one gets a little narrower and narrower and narrower.

I don’t think that that difference makes a difference under the statute.

I don’t see anything in the statute that makes that in any way different.

I think the Administrator perhaps could say that in order to control pollution, a scrubber shall be installed on that.

Potter Stewart:

Oh, you think he could do that.

Randolph:

Oh, yeah.

Potter Stewart:

Maybe I’m quite mistaken, but it seems to me that is fairly important.

What can he do beginning with a Government-operated incinerator that everybody agrees can be and is subject to regulations?

Randolph:

He can do anything with a Government-operated incinerator that he could do with a private incinerator.

Potter Stewart:

Let’s say you have some regulations having to do with how many scrubbers there should be, and you have to appropriate money if there is an insufficient number of scrubbers and so on and so forth.

Randolph:

I don’t think he can order the State to appropriate money.

Potter Stewart:

How about closing down the plant, because the scrubbers aren’t given away, you know.

Randolph:

Well, I realize that; but my answer to your question is precisely the same answer that Justice Holmes gave in Sanitary District, and I think perhaps analogous to the answer that was given in Edelman v. Jordan.

It may be a necessary consequence of compliance that the State has to spend money; but that’s of no concern to the Federal Government, or even indeed to the Constitution itself, if a requirement is imposed on the State that’s a valid requirement and it has to meet it.

The consequence may be appropriation of money.

I think the consequence, for example, of complying with the regulations in United States v. California on a railroad may be the appropriation of money.

Randolph:

The consequences of complying, for example, with a municipal incinerator, regardless of what you require the State to do, may be the expenditure of money.

John Paul Stevens:

Well, is EPA’s argument here limited to the contention that, in effect, conceding that the Administrator himself has to fill in all the details of a Federal plan after a State plan is rejected in whole or in part and so you’re simply dealing with the State in its essentially proprietary capacity?

The thing I thought was still an issue was that the Administrator said in filling in those details he could say, State, you hire 10,000 people to carry out the details of this plan.

Randolph:

The Administrator will say the State must have an inspection and maintenance program that is adequate to do the following such-and-such and such-and-such, whatever detail is required.

One thing that’s been lost is —

John Paul Stevens:

But that isn’t a detail.

It’s one thing for the EPA to say we’re going to see that no vehicle in the State of California violates Federal standards, which everybody in this case I understand concedes the Congress has a perfect right to authorize and the Administrator has a right to promulgate.

It’s another thing to say we’re going to see to it and we’re going to conscript 10,000 State employees to enforce it.

Randolph:

I’m not clear why you think it’s another thing.

The fact of the matter is that the only objection I think that could be made to that is that, well, what you’re doing is requiring the State to exercise its police power; that is, it is enforcing Federal law against its citizens.

If you require the State to set up a program and it takes 10,000 people, yes, that is what you are — but the Court has never viewed that, so far as I am aware, as a constitutional objection.

Let me give you an example.

John Paul Stevens:

But how about the statute?

Does the statute authorize it?

We’re still at that level.

Randolph:

Does the statute authorize it?

I see nothing in the statute that prevents it.

John Paul Stevens:

Well, but it isn’t a question of if there’s anything in the statute to prevent it; does anything authorize it?

Randolph:

Yes.

Number one, the State has to have an implementation plan.

If the State doesn’t have an implementation plan, the EPA has to substitute an implementation plan for the State.

Under that implementation plan, any owner of a source of pollution can be required to abate the pollution.

EPA’s argument in this case, which I said is fundamental to the case, is that the State is an owner of a source of pollution and therefore can be required to abate that pollution, just as if the steel industry was required to hire 10,000 people in order to abate the pollution that they cause.

We treat them no differently, that’s the extent of the argument here, and there’s nothing under the statute.

The statute says “any person”.

It defines the State as a person.

If the State can be required to clean up the pollution as a result of its municipal incinerators, it can be required to clean up the pollution as a result of the air pollution from the highways, or from the sewer systems.

As a matter of fact, the distance between sewer systems and highways I don’t think is a very large distance.

Sewers systems are to the water what the highways are to the air: they both collect pollution, the pollution comes from private sources and yet the State owns both, and we think the State is responsible for both and it’s not just us, I think this Court has so held.

I think the Sanitary District case stands for that, I think the City of Milwaukee v. Illinois case stands for that.

Randolph:

As a matter of fact, it’s even further, because the Court held there that even in the absence of Federal law, the Court was going to create Federal law to govern just that kind of pollution, and it indicated in dictum probably, that it would do the same in regard to the ambient air.

But the sanction there wasn’t at all clear.

I suspect that the view might be quite different in a court if the Federal Government said if you don’t provide this corps of inspectors, we’re going to deny you federal funds or federal grants, it might be quite different if you said we’re going to put the head of the Motor Vehicle Division in jail.

But your statute provides here that this kind of issue can’t be raised in the enforcement proceeding.

Randolph:

You’ve mentioned grants in aid, and so in response I’ll talk about that for a minute.

If you mean that the alternative for the Federal Government in this case is offer the State a grant in aid with a condition attached, and if they accept it and then fail to live up to conditions, cut off the money, I have two responses to that.

Number one, that was what the history of the Act was before this; but States failed to take the money, and the pollution went unabated.

Number two, do you realize that that puts the State in the position of a foreign country?

I mean, we might as well say to China please don’t blast in the atmosphere anymore, and a cloud could come over the east coast of the United States.

Here, we will offer you a grant in aid, we will put conditions on it; if you accept it and then don’t comply with the conditions, we’ll cut it off.

Well, we think the States are in somewhat of a more responsible position than a foreign country.

If you mean by that, however, if you mean something more than that, if you mean that the $60 billion that is flowing into the States each year from the Federal Government, what we should say is unless you comply, we’re going to cut off that $60 billion.

We’re not going to appropriate money for you.

If that’s the point, I don’t see any difference.

The lower court said, well, the alternative is to use the whip of coercion.

Well, that is like using the death penalty for a misdemeanor.

I mean, one of two things can happen: either an awful lot of people are going to get killed and money is going to be cut off all over the place for the slightest violation, or else it’s not going to be enforced; it’s not going to be used.

Warren E. Burger:

What about closing the plant?

I raised that question before for the incinerator.I think they could close the plant.

Randolph:

Yes, I think they could close it.

Warren E. Burger:

How about blocking and closing the highway?

You said the sources are the same.

The highway is the source in one case, and the incinerator is the other.

Randolph:

If there was no other way to do it, I think that would be true, Mr. Chief Justice; but there are other ways.

Under the War Powers, we’d move them right down the highway.

The question here is the power of the Administrator to tell the State to close the highway.

Randolph:

Yes.

That’s where we are in this case.

Randolph:

Yes, but that would — sorry.

Lewis F. Powell, Jr.:

Just to take the other extreme, let’s assume that the Administrator concluded that dispensal of highways was really the answer to the pollution problem and ordered, say, the State of Virginia and the State of Maryland, despite their proximity to Washington, to build a billion dollars’ worth of new highways.

Randolph:

Well, that would be requiring them to own another pollution source, and I don’t think we could do that.

Lewis F. Powell, Jr.:

What’s the difference between saying you shall have carpool lanes?

Randolph:

Because what we’re doing is requiring them to control the source they already have rather than telling them to own another one, buy another one.

Lewis F. Powell, Jr.:

Suppose instead of building distinctly different highways, the answer was suggested that you widen the highways you now have to include carpool lanes?

Randolph:

Well, yes, I think that is the same thing; I think it’s requiring them to own more property, and we’re not requiring them to do that.

We’re polluting another source of pollution.

What we’re trying to do is, if they have this source of pollution and are the owners of it, they invite people on it, then people should use it in a way that doesn’t cause harm to others or other states.

Lewis F. Powell, Jr.:

But if, for example, every incinerator in a state were deemed to be so inadequate that it had to be replaced, would that be constructing new property?

Randolph:

There is no doubt whatever that that could be required.

Lewis F. Powell, Jr.:

It is required of private industry, as you say.

Randolph:

It was not only that, Mr. Justice Powell; I think that the Sanitary District case stands for that, and we cited the history of that.

The fact is, the City of Chicago had an inadequate way of disposing of its sewage.

It ran it by draining Lake Michigan and then ran it down into the Mississippi River, where it traveled down to the other states and what the Court finally held there was that the City of Chicago had to devise another system, and I think we quoted in a footnote.

Lewis F. Powell, Jr.:

But, Mr. Randolph, isn’t there a rather plain distinction between operating a sewage system which deposits effluent into the water or the air, as opposed to operating a highway which deposits nothing?

Randolph:

Well, the highway deposits —

Lewis F. Powell, Jr.:

What is your best precedent for saying a highway is itself a source of pollution?

It is indirectly, but within the meaning of the statute.

Randolph:

Well, I think the best precedent is…

Lewis F. Powell, Jr.:

Is it the sewage system?

Randolph:

Corpus Juris Secundum black-letter law that says the owner of a piece of land invites some —

Lewis F. Powell, Jr.:

We are not talking about common-law nuisance; we are talking about statutory authority to compel a State to establish a program affirmatively.

Randolph:

Whether, in fact, it is the highway that’s the polluter.

Lewis F. Powell, Jr.:

It’s not like the sewage system, I don’t think.

Randolph:

We are not saying the highway is the polluter, obviously, the stuff comes out the —

Lewis F. Powell, Jr.:

Well, sure you are.

You’re saying the owner of the source of the pollution.

Randolph:

But the sewer system —

Lewis F. Powell, Jr.:

That’s the highway, as I understand it.

Randolph:

The sewer system is not a polluter in that sense, either.

It collects matter from citizens and deposits it.

Lewis F. Powell, Jr.:

Correct.

Randolph:

The highway collects air pollution from citizens and, instead of depositing it into the streams and waterways of the country, throws it up into the air and allows it to travel throughout the rest of the 49 states, depending upon which way the wind blows.

Thurgood Marshall:

But exhaust doesn’t travel down the highway.

Randolph:

No, it travels up into the air and off into the…

Thurgood Marshall:

In which the State doesn’t own.

Randolph:

That’s right.

So if the State can simply put in a complex of highways and say our citizens living here will not do a thing about controlling.

We won’t do a thing about controlling the air pollution from the vehicles, because we are a state that has the fortune of being upwind from anybody else.

But we do not have to do anything; and that means that when the wind blows, then all the states downwind get it.

And the Administrator can step in and say we’re not going to have this state doing that, we’re going to enforce these prohibitions against them.

Randolph:

That’s right.

So the question here is whether the Administrator is going to do it through Federal agents or whether the Administrator can force the states to do it through their agent.

Randolph:

Yes, force the States to take on the responsibility that we think they have as component parts of this union and to put it in Governor Sergeant’s words, speaking for the National Governors Conference, to not be allowed to simply say, well, let the Federal Government do it.

We think they have more of a responsibility in this case.

Well, of course Governor Sergeant, I take it, was not the author of the legislative history, or did he vote on the Clean Air Act.

Randolph:

That’s right.

I think you have to find some authority in the statute, as Justice Stevens suggests, to authorize what you’re talking about.

Randolph:

Well, I think we’ve found it, and I think our briefs talk about it at length.

Byron R. White:

Well, Mr. Randolph, is there some separate, narrower issue in the case — I take it there is — as to whether a state is required to enforce a Federal prohibition?

I take it from your brief you’re not saying that the state has to pass any law or any regulation or anything like that, is that it?

Randolph:

That’s right, yeah.

We’re not saying that the state —

Byron R. White:

Is your total claim that we have some Federal prohibitions that the Administrator is going to reissue some plan and there are just going to be some prohibitions?

Randolph:

Well, I don’t know if you mean by mandatory versus prohibitory, that kind of a line.

I don’t think I can say that the Administrator is issuing new regulations that will just prohibit the states from doing that.

They may be mandatory, yes.

Byron R. White:

Well, you do want something more than the Court to hold that a state must enforce a Federal prohibition, let’s say the national speed limit.

Randolph:

I don’t want the Court to hold that.

Byron R. White:

Let’s take the national speed limit.

Is the State required to enforce the national speed limit?

Randolph:

Well, now you’re asking me a constitutional question.

Certainly not under the statute; but if you’re asking me a constitutional question, I would say maybe and the reason I’d say that, the reason I can’t give a definite answer is, I think the case would have to be analyzed under National League of Cities.

And as far as we’ve gone through the calculus and the difference, and we’re talking one difference automatic in the case that you posed is that air pollution travels from one state to another.

Byron R. White:

It may be a constitutional question in part, but it might also be a statutory question in the sense that anytime Congress passes a law, you ought to infer that they intend the states to enforce it.

Randolph:

No, we’re not claiming that.

We’re not.

If we had claimed that, Mr. Justice White, then the limit of our argument would not be in regard to highways.

We would be saying that the Administrator can require a state to enforce all of the requirements, like for example with respect to steel plants, with respect to smelters, with respect to any other pollution-casing activity by private industry within the state, the Administrator would be standing up here and saying to the Court that if we promulgate a substitute plan or even if the State has a plan, we can require the State to enforce it against private people, we’re not saying that.

Byron R. White:

You say, then, and what you’re arguing, then, is that you think Congress has said that if the Administrator wants to require the state to enforce these new requirements, he may do so.

Randolph:

If they are the owner of a source of pollution and since I mentioned National League of Cities, I’d like to at least spend some time on that case.

The briefs —

Thurgood Marshall:

I’m having trouble with the owner of the pollutant still, with my brother Stevens and some others.

You said that states could not be required to close down the smelter plant or anything else.

Right?

Randolph:

Right.

Thurgood Marshall:

Anything like that.

Randolph:

The State does not own the smelter in any way.

Thurgood Marshall:

But the Federal Government can compel the state to close down a private automobile.

And the difference is?

Randolph:

The difference is that if the smelter were on State land, we could require the State to not allow it to be used for that purpose, for smelting purposes.

If the private automobile is on State land, we can do the same.

That’s the difference.

The difference is that when a landowner allows somebody else to use his property —

Thurgood Marshall:

I don’t believe either.

I don’t have to believe either, do I?

We’ve got before us — you really are aiming at the automobile, which is not owned by the State.

Randolph:

Right, but the highway is, and without that, the automobile would not be polluting.

John Paul Stevens:

Well, Mr. Randolph, you would draw a distinction, then, between a state which owns its own highways and one which decided to finance all its highways by vesting them in some turnpike commission or something like that.

Randolph:

Yes, sir.

John Paul Stevens:

Then, they would not be a polluter.

Randolph:

Absolutely, then we’d be regulating the turnpike.

John Paul Stevens:

But they would still have the same normal authority over traffic control, regardless of their ownership.

Is the ownership of the highway really the significant factor when you look at the operation of a state running its highways or is it the fact that police forces have an interest in people not getting killed on the highways and things like that?

Randolph:

If we argued that it was the fact that they had the police force, if we argued this —

John Paul Stevens:

What is the specific statutory support for this argument?

I really have trouble finding the text that lends any support at all to this.

Randolph:

Let me pull out the statute.

If the Court turns to 110, I’ll read it — which is the requirements that have to be in an implementation plan —

John Paul Stevens:

Would you just go slowly enough so we find where it is now?

Randolph:

Well, maybe I ought to refer to the briefs, then.

51-A of your Petition, I think.

Thurgood Marshall:

On Page 5-A of the Appendix to your brief, I think it is.

Yes.

John Paul Stevens:

5-A of the Appendix to your brief, right.

Randolph:

Well, that says for Section 110.

In Section 110(G), it’s required that the implementation plan that the state imposes provides to the extent necessary for periodic inspection and testing of motor vehicles to enforce compliance —

John Paul Stevens:

Well, sir, I’m awfully slow; but 110(G) is —

Randolph:

7A.

John Paul Stevens:

7A(G).

It provides to the extent necessary, I see.

Randolph:

To enforce compliance with applicable emissions standards.

Now, if the State doesn’t have that in its plan, EPA can require it.

All the states here, with the exception I think of California, had such a requirement in their plan.

John Paul Stevens:

But again, let me slow you down, Mr. Randolph, because I do want to understand your arguments.

This section, as I understand it, deals with the duty of a State as a regulator, not with the duty of a State as an owner of highways.

Randolph:

Well, this Section 110 deals with the State in both capacities.

John Paul Stevens:

Well, where does it deal with the State in its capacity as a potential polluter or an owner of a highway?

Randolph:

If it doesn’t deal with — in the case of any implementation plan, it has to include this as (b): emission limitations, schedules, timetables for compliance with limitations, “and such other measures as may be necessary to assure attainment of their plan”.

John Paul Stevens:

But my point, Mr. Randolph, is this section is talking about what it must do because it’s a governmental agency, not what it must do because it’s an owner of property which may pollute the atmosphere.

What talks about its duty as an owner of property that may pollute the atmosphere?

John Paul Stevens:

That’s what your whole theory is, as I understand you.

Randolph:

The entire Section 110 speaks to the State in both capacities, and it must, because if it does not, then a state would be under no obligation in an implementation plan promulgated by them or by the Federal Government to comply with the requirements of that plan.

John Paul Stevens:

To regulate itself, as a rule.

Randolph:

To regulate itself.

It must be under those requirements that 110 must mean that, and the reason it must is because, number one — and the States admit this — if they have a municipal incinerator, they have to comply.

John Paul Stevens:

Well, I understand that; but what is it that’s in this section that teaches anything about the owner of a highway being a polluter?

I think Mr. Justice Marshall and I are concerned about the absence of anything in the statute to suggest that that kind of activity makes the state a polluter within the meaning of the statute.

Randolph:

I will readily admit, you cannot read Section A to get to that conclusion, like you cannot read a lot of other statutes.

John Paul Stevens:

It doesn’t say anything about the state as an incinerator owner, either.

Randolph:

It does not.

It does say that transportation controls have to be put on, and that is on Page 6A, Mr. Justice Stevens.

John Paul Stevens:

Well, I can understand the State as a regulator would control the transportation that takes place on its highways; that’s easy.

But does that mean that in its capacity as an owner of the highway, it has a different duty than as a regulator?

Randolph:

Yes, we think the legislative history supports that.

We think that if you read the statute any other way, then what you wind up with is a statute that makes no sense as regard to municipal incinerators.

If you say 110 doesn’t mean the State can be enforcing something against itself, then I don’t know what you do with the respondents’ concession in this case.

It must be —

Warren E. Burger:

Mr. Randolph, I could understand your argument better if you place this on the State’s power to license automobiles, which clearly the State has, I’m sure you’d agree.

Now, would the State have the power to have the emissions standards for each particular automobile as a condition to getting a license to drive the car?

Randolph:

Yes.

Warren E. Burger:

Well then, does this statute operate through that kind of a —

Randolph:

That would be a very bold claim by the Administrator, and he makes no such claim here and the reason it would be bold —

Warren E. Burger:

Bolder than the one you’re making?

Randolph:

Yes, the reason is because we would then have to say, and we don’t say, that simply because the State has the power to regulate a certain activity, therefore the EPA Administrator can require the State to regulate that activity.

That would mean that the EPA Administrator could require them to control private smelters, could require them to control anything.

Warren E. Burger:

You said before, I thought, in response to a question I put that the EPA could close the highway within the state.

Isn’t that a bolder claim than the claim that they should exercise their licensing power in a particular way?

Randolph:

We have never imposed any such requirement, Mr. Chief Justice.

We say that the State can be required to close down a source of pollution that it owns if that’s absolutely necessary for compliance.

In fact, what you mean by closing down the highways is probably that people use other means of transportation, for example.

Randolph:

I don’t know whether maybe block them off or something.

But we’ve never made that kind of claim here — I mean, the Administrator realizes the difficulties of changing habits in the country.

This is demanding legislation.

It is stiff legislation.

The reason it is stiff is because we had done nothing about it, and something had to be done; controls had to be imposed, primary responsibility of the States had to be met, and I think the Court said in NRDC v. Train that the innovation of the statute was that under the Act that States had no choice but to meet that responsibility.

Are they responsible for the pollution coming from the highways?

We think they are.

Now, I’d like to say at least a word about National League of Cities.

We don’t believe the federal laws cross the line marked out by the Court in that case and there is one difference between this case and National League of Cities that I think is immediately apparent.

Unlike National League of Cities, the activity here is not one that, to use the words of that decision, is essential to the separate and independent existence of the States and what is more, the respondents admit it is not.

I will tell the Court why.

They say that if the operation of their transportation systems has to be modified to reduce air pollution, the Federal Government should do it.

I submit that’s an admission that the activity that we’re talking about is not one that’s essential to the existence of the States, why not?

Because they say, well, we want the Federal Government to do it.

If it were essential to their continued existence, they would be making no such claim.

There was no such claim made in the National League of Cities’ case by the States that the Federal Government should come in and control their employees.

Thank you.

Lewis F. Powell, Jr.:

May I ask you a question before you sit down?

What specific regulations are left in this case as of today?

Can you identify those?

In other words, what are we addressing?

What is left as compared with what was before the Courts of Appeals?

Randolph:

Well, Mr. Justice Powell, in the Ninth Circuit, the only regulation that was struck down in that case, there’s only one regulation struck down in the Ninth Circuit, sir.

Lewis F. Powell, Jr.:

That was the inspection and maintenance section?

Randolph:

The regulation on Page 439 of the Appendix.

If you look at the judgment of the Ninth Circuit, that’s the only regulation that was struck down, and that’s the enforcement regulation.

Lewis F. Powell, Jr.:

And that’s both Arizona and California?

Randolph:

Arizona and California.

I might add that Arizona has an inspection and maintenance program, a mandatory requirement; they’re doing what we say the States have to do in this case, and it is not entirely clear to me why they’re a party to this litigation.

It is 52.23, which is the general violation and enforcement and that’s struck down, the Court held in the Ninth Circuit, because it says in there that a governmental entity can be a violator of a plan.

Randolph:

We think that’s absolutely consistent with, for example, Section 307 of the Act, which I didn’t get to.

It says a citizen can sue any person that violates a plan, including a governmental entity, subject to the Eleventh Amendment.

Lewis F. Powell, Jr.:

And what are the sanctions against the governmental entity?

Randolph:

An injunction.

Lewis F. Powell, Jr.:

Any other?

Randolph:

Well, the Administrator has said that we’re not going to use criminal sanctions, even if they were available.

Lewis F. Powell, Jr.:

In a citizen’s suit, it’s an injunction.

Randolph:

In a citizen’s suit, it’s an injunction, yes, sir.

Warren E. Burger:

Would the injunction be the route by which you would carry out your suggestion that the EPA could close the State highway?

Randolph:

I don’t want to say that that’s going to happen.No.

If it had to happen, I would say yes.

Warren E. Burger:

It could happen, yes.

Randolph:

It’s an injunction.

Lewis F. Powell, Jr.:

Mr. Randolph, let me be sure I understand this point.

I thought the underlying regulation that your question presented in your cert petition to the Ninth Circuit judgment attack was the one that imposed a duty on the governmental agency to establish and maintain an inspection program.

So isn’t that what’s really at issue?Well,

Randolph:

I haven’t finished my answer.

Lewis F. Powell, Jr.:

Oh, I’m sorry.

Randolph:

That is the only regulation, Mr. Justice Powell, that was struck down.

Lewis F. Powell, Jr.:

In the Ninth Circuit.

Randolph:

In the Ninth Circuit, in California and Arizona.

Now, let’s stick to the Ninth Circuit for a moment.

We petitioned —

Lewis F. Powell, Jr.:

That is still an issue here.

Randolph:

Oh, yes that is the statutory question, yes.

They struck it down with statute, yes.

We petitioned raising the question, number one, whether the EPA could require the State to take action when it owned a pollution source, namely, the highways.

Second question, whether it would be constitutional for EPA to do so in regard to inspection and maintenance programs.

The only program that we’ve petitioned on was inspection and maintenance.

Now, we did that for a number of reasons, I won’t go into them all; but one of them is that it’s the one program that’s specifically mentioned in the statute.

Randolph:

The legislative history we think is crystal-clear that the Congress.

Now the statements that we quoted that Congress said, yes, States must do that.

Every governor and every mayor is going to have to do this, it is very tough; but we’re very sorry, you’re going to have to do it, because it’s the only way that we’re going to get air pollution down to the quality that protects human life and welfare.

Now, in the District of Columbia Circuit, a number of regulations were upheld; but we narrowed our case down to the same point that the only thing we petitioned on was inspection and maintenance.

So the only regulations that are in issue in the District of Columbia are those in regard to Maryland, the District of Columbia and Virginia that deal with inspection and maintenance.

It’s equivalent to 52-23?

Randolph:

And 52-23, which applies to all programs.

The bus purchase is entirely out of the case now.

Randolph:

That’s out of the case.

The only reason the bus purchase is, there were only two other programs that were in issue in this case, and that is the result of a cross-petition by the Commonwealth of Virginia.

They put in bus purchases as an issue; they put in bus lanes as an issue.

The bus purchases is out of the case; the bus lanes issue is still on the case and with respect to the District of Columbia, and those regulations are all summarized on Page 606 of the Appendix.

Are the bike lanes still in the case?

Randolph:

No, no.

I was going to say before the one thing that is — I’m glad you brought that up.

They’re not in the case because not on any constitutional ground and not even on any statutory grounds, they’re not in the case, because the District of Columbia Circuit held that they weren’t supported by substantial evidence.

There was no indication that they would be a substantial device to avoid pollution, and we have acquiesced in that decision.

Every one of the regulations that the EPA Administrator would impose upon a state is subject to the test that’s always applicable to administrative action — is it arbitrary or capricious?

Does it meet substantial evidence and I think the Court can rest assured that when it’s a State on the other side claiming that its sovereignty is somehow infringed by the regulation that that kind of a test will be administered with great care by the courts to make sure that what the EPA Administrator is imposing is not something that’s arbitrary or capricious, which may take all the hypotheticals that I’ve talked about wouldn’t even reach the question of a constitutional stage if a court said, no, we don’t think that there’s substantial enough evidence to support those regulations.

Mr. Randolph, it’s evident that there has been a good deal of shrinkage in this case since the original litigation in the Courts of Appeals.

I am very interested in the answer to the specific detail of the concrete answer to Mr. Justice Powell’s question, which perhaps can’t be done orally in a short time; but I’m interested in knowing just what’s left in this case and a memorandum would be very helpful to me.

Randolph:

Fine, I’d be happy to provide one.

If you and Counsel could agree on it.

Randolph:

Yes, sir.

Inspection, maintenance and bus lanes.

Randolph:

That’s all, yes; and bus lanes only for the District of Columbia region, that’s all.

There are bus lanes in, for example, Baltimore and various cities in California; but we don’t think that the Court gets to that question, because we didn’t petition from this —

Well, that’s it.

Randolph:

Yeah, it’s far from clear to me up to now what is left in this case.

And would your memorandum include the regulations that still remain intact that we will have to review?

Randolph:

Yes.

The retrofit, for example, fell out of the case, because the cases in those were required for pre ’68 vehicles and we’ve gone now, what, nine years from ’68.

I mean, there’s no use requiring it; those are all off the highways.

So the retrofit issue is all gone, that’s right.

Randolph:

Because they’re off the highways now, so…

From what the brief says, it is very difficult to ascertain what of the core remains.

Warren E. Burger:

Extremely so and it would be particularly helpful if you and your friends agree, so that there isn’t any debate left on that.

Randolph:

I’m sorry I didn’t take less time, and it appears I have taken more.

Warren E. Burger:

Well, obviously, it was over-optimistic on the subject.

Mr. Hawkins.

Mr. Hawkins, I think we all hope you will address yourself very early to the statutory problem.

We hope everyone will do that.

David G. Hawkins:

Indeed I will, Mr. Chief Justice, may it please the Court.

We are unanimous on wanting clean air, so let’s focus on the statute.

Warren E. Burger:

Very good.

David G. Hawkins:

Your Honor, the citizen groups intervened in the court below in the District of Columbia Circuit in support of EPA because of their view, which we’re glad to hear the Court shares, that the statute promotes for clean air and that the EPA regulations are the only practical way of achieving that important objective.

So to the statutory question, is it reasonable to regard a highway as a source of pollution, and Mr. Justice Stevens put it well in asking what is the specific statutory authority.

What is it that talks about the State’s duty as a polluter of the atmosphere?

Well, it is the same section which talks about any source’s duty, and that is the section which empowers EPA to promulgate regulations in the event that a State does not submit an adequate plan.

That section is Section 110(c) of the Act.

It is set forth at EPA’s brief at Page 9A.

What it says is that the Administrator shall set forth, promptly prepare and publish proposed regulations setting forth an implementation plan.

Now, that implementation plan must contain emission limitations, which although it doesn’t say so in Section 110(a), are applicable to pollution sources.

The question then is, is it reasonable to regard a highway as a pollution source?

I think the difficulty that many people have had is that the highway is owned by the States and, as such, it is difficult to perceive it as a pollution source.

So let’s look at some similar types of sources which are owned by private parties.

For example, let us take a garage which performs tune-ups on automobiles.

Those automobiles are owned by the individuals that bring those cars in.

However, the idling emissions may be substantial, especially for very large garages.

Similarly, a private garage which perhaps stores buses or is a bus terminal.

David G. Hawkins:

The buses are owned by another party; but the garage itself may collect emissions, concentrate emissions and allow the problem to be created.

This is what a highway does, in that it determines the location of motor-vehicle activity.

It concentrates that motor-vehicle activity to a degree where the problem is created.

Thurgood Marshall:

You take Shirley Highway as a garage.

David G. Hawkins:

I would take Shirley —

Mr. Justice Marshall, there’s one exception, and that is the bus lane on Shirley Highway, which moves very well, and that’s what we’re aiming at.

Let’s look at some others.

Is a shopping center where people circulate, idling their cars for hours on end trying to find a parking space during a preholiday sale, is that a source of pollution; or is it fair for the shopping-center operator to insist that any community that adjoins the shopping center must go after the individual vehicles that circulate and are collected and are attracted to that shopping center?

Thurgood Marshall:

You suggest that the EPA could order the owner of the shopping center to establish an inspection system on all vehicles coming into the shopping center to check them for air pollution, is that? …

David G. Hawkins:

We believe there are precedents which would establish just that type of responsibility, and I’d like to turn to some of those.

Thurgood Marshall:

Or should he abandon his parking lot, could he be required to abandon his parking lot in order to eliminate this problem?

David G. Hawkins:

Well, what the EPA actually did, Your Honor, was to require that the shopping centers develop their parking lots in ways that would not produce pollution problems that are associated with the use.

Warren E. Burger:

We will resume there at 1:00 o’clock.

Mr. Hawkins, I think you have a few minutes left.

David G. Hawkins:

Thank you, Mr. Chief Justice.

In the remaining moments, I’d like to just make two points.

First, it is logical to regard highways as sources of air pollution and, second, Congress intended that they be regarded as sources of air pollution.

I’d like to touch on the second point first, Congressional intent.

I want to call the Justices’ attention to the fact that in 1974, after EPA promulgated the regulations here in issue, Congress considered amendments to the Clean Air Act in a Comprehensive Energy Bill.

Those amendments were passed in June of 1974, and one pertinent amendment is in the Government’s brief at Page 12A.

It amended Section 110 of the Act to address EPA’s authority to promulgate the very types of regulations here in issue, namely, bus lanes.

Large Paragraph E on Page 12A specifies that basically no regulation relating to management of parking supply or preferential bus/carpool lanes shall be promulgated after the date of enactment of this paragraph unless there are locally conducted public hearings.

So Congress addressed this issue.

Its only concern about bus lanes was not that it was irrational to regard the highway as a source, but simply that there hadn’t been adequate public participation in some of the bus lanes that had been promulgated up to that point.

However, Congress didn’t even require that those bus-lane regulations be rescinded.

Instead, in the conference report, as is pointed out in the Government’s brief at Page 35, the conference report specifically endorsed the existing bus-lane regulations and simply required a procedural safeguard for future bus-lane regulations.

Congress did something about parking surcharge regulations, too, in those amendments, didn’t it?

David G. Hawkins:

That’s right, Your Honor.

Congress addressed a number of areas with respect to EPA’s regulation of transportation sources of pollution.

In some respects, they removed EPA’s authority, that is, parking surcharges.

David G. Hawkins:

In other cases, they limited it procedurally.

But in no case did they question the rationality of regarding the highway as a source of pollution, nor did they question the EPA’s specific regulations which were on the books, available and indeed in great issue at that time.

Were they asked to change those regulations?

David G. Hawkins:

Yes, on the floor of the House, in fact, an amendment was introduced to prohibit the implementation of bus lanes.

That was passed by the House; however, it was deleted in conference, and the reasons the conferees deleted that provision are stated in the Government’s brief at Page 35 and 36.

They said we do not intend to question EPA’s authority to implement these regulations.

How about the enforcement as between the Federal and the State governments?

David G. Hawkins:

That was not addressed, but EPA’s regulations were clear, they had been in all the newspapers and they had been submitted in testimony on the legislation, and the States were raising quite a bit of opposition to it.

So Congress knew what the issue was, and as I say, the only thing they did was act to limit EPA’s ability to promulgate new bus lanes by requiring some additional public hearings.

I would also like to point out that this is not all post-enactment legislative history.

On the same day that the Clean Air Act was passed, the Clean Air Amendments of 1970, Congress also amended the Federal Aid Highway Act.

In 23 USC Section 109(j), which is referred to in our reply brief, Congress specified that all federal aid highways had to be consistent with air-quality implementation plans.

So, again, there is Congressional recognition that is coincident with the passage of the original amendments that a highway indeed can be a source of pollution.

What would be the consequence of a State’s failure to comply with that provision in the Highway Act?

David G. Hawkins:

This directed the Secretary of Transportation to promulgate regulations.

The Secretary of Transportation has promulgated regulations.

We think they’re inadequate.

The regulations provide that no future highway monies would be available to a state.

Just concluding with the logic of regarding highways or other vehicle facilities as sources, I’d would submit that Griggs v. Allegheny County, a decision of this Court, recognized that an airport is a source of pollution, noise pollution in that case.

The planes were causing the noise pollution; but the airport owner, which in fact was a county, was held responsible.

In cases involving interpretation of the Federal Railroad Safety Appliance Act, a railroad, not as the owner of vehicles, but merely as a track owner, was held liable in U.S. v. Toledo Railroad, which is in our brief at Page 8, was held liable for the safety defects in the cars owned and hauled by another railroad corporation and as I say, the basis of liability in that case and the basis of liability in the statute is that the person was a track owner.

In this case, the State is also a track owner — it happens to be a concrete track rather than a steel track and we think there’s no constitutional significance in the fact that we have steel on rails in one case and rubber on concrete in another.

Thank you very much.

Warren E. Burger:

Very well, Mr. Hawkins.

Mr. Maskowitz.

Joel S. Moskowitz:

Mr. Chief Justice, and may it please the Court.

The Solicitor General has attempted to persuade this Court that the Administrator of the Environmental Protection Agency has both statutory and constitutional authority to predetermine and control state transportation policies.

To prevail in this case, he’s going to have to persuade the Court of the correctness of his position on both of these issues.

I’m going to address myself to the statutory issues, and my colleague, Mr. Lord of Maryland, will discuss the constitutional issues.

The Environmental Protection Agency in its latest position which it takes before this Court now seems to recognize that it may only regulate polluters; and to justify its attempt to regulate State policies and activities, it characterizes the States as polluters, because they own and maintain highways which, it is asserted, are indirect sources of pollution.

Joel S. Moskowitz:

The notion of indirect source of pollution, I think, was developed somewhat more in EPA’s briefs than it was at oral argument, and I think perhaps we should give a little more attention to it here, because it is the slim thread upon which this entire statutory scheme is founded, the notion of indirect source; so we ought to step back a little bit and ask where this notion that a highway is an indirect source of pollution, precisely where does that come from.

The first thing you notice about the term “indirect source” is that it is not found anywhere in the statute.

Nowhere in the Clean Air Act do we read anything not only about a highway being an indirect source, but the term “indirect source” is not found in the statute.

The basis for the notion of indirect source at all, in fact, is submitted by EPA to be an essay by the Administrator as a preamble to some regulations, and this is the only basis we’re given in the regulations for the concept of indirect source.

Now, interestingly enough, there was in the regulations — in fact, there still is.

There is a regulation actually defining “indirect source”, and you’ll find it in the parking regulations, the one … they describe the present status of that regulation as its operation has now been suspended due, of course, to the interposition of Congress.

John Paul Stevens:

Well, how far is your argument going along these lines?

Is it your claim that there’s no power to regulate any indirect source of air pollution?

Joel S. Moskowitz:

No, indeed there is.

What we’re trying to show now is the chain of reasoning by which it is established that a highway is an indirect source of pollution and that State policies with respect to those highways can be the proper subject of legislation.

So what I’m demonstrating now is that starting with no concrete anchor in the statute, we are then given the concept of indirect source and how that concept has been utilized in this particular case.

John Paul Stevens:

Well now, what then leads you to concede that there’s any power to regulate any indirect source if there’s no statutory authority?

Joel S. Moskowitz:

Well, I don’t really have to reach the question of whether there’s a power to regulate any indirect source, because —

John Paul Stevens:

Well, I think it is of some importance here.

Joel S. Moskowitz:

Well, I haven’t really addressed the question of whether there’s power to regulate any indirect source.

What we’re showing is that if there is power to regulate an indirect source, that power does not extend to regulating States’ transportation policies as an indirect source.

John Paul Stevens:

But if there is, then one takes a step from that or doesn’t take a step from that.

But if there isn’t any power whatever to regulate any indirect source, you don’t take the first step.

That’s quite important in this instance where —

Joel S. Moskowitz:

I agree entirely.

Frankly, Your Honor, I don’t see anywhere in the statute where “indirect source” is addressed at all and I’m being cautious on that ground, simply because it’s a question the states don’t have to reach.

I am certainly not conceding anything; I am simply not addressing that.

John Paul Stevens:

Well, you do have to reach it, because as I say if there is a power on the part of the Administrator or a state plan to reach an indirect source, then we’re faced with one kind of a case; if there’s no power at all to reach any indirect source, then you have a much easier case.

Joel S. Moskowitz:

I think the short answer, Your Honor, is, I don’t see it in the statutes.

I don’t see it.

John Paul Stevens:

Well, shouldn’t your argument be perhaps that assuming that there’s power in Congress — not in EPA, in Congress — to regulate indirect sources.

The Congress has not undertaken to exercise it in this statute?

Joel S. Moskowitz:

Oh, we indeed agree on that point and that it’s only —

John Paul Stevens:

Then you say that Congress in this statute has not authorized the Administrator to regulate any indirect source of air pollution.

Is that your position?

Joel S. Moskowitz:

It’s my position simply because I haven’t located the power in the statute.

John Paul Stevens:

Mr. Mascowitz, I’m not quite sure how all these letters and numbers go together; but Section 110(a) to (d), which appears on 135(a) of the petition for writ of certiorari in the District of Columbia case, talks about the contents of plans, and it certainly authorizes regulation of sources.

And couldn’t the Administrator take the position that I’m choosing to define “sources” broadly and that indirect sources would be included, as well as direct sources?

Joel S. Moskowitz:

It seems to me I agree, and conceivably, obviously, he has done that, but I think the question that I would like to proceed with in order to fully answer your question is that we have to understand what an indirect source is.

In order to find —

Am I right in this, in my concept and understanding of what a typical indirect source would be?

It would be a repair garage whose business is repairing carburetors, and private people take their automobiles in there, maybe 100 automobiles a day are in there with the motors running and they’re adjusting the carburetors and the gasoline fumes, the various effluents from carburetors arise from this repair shop.

The repair shop would be an indirect source, would it not be?

Joel S. Moskowitz:

It isn’t the purest example.

Well, isn’t that our definition?

Joel S. Moskowitz:

It isn’t the purest example, because in that particular instance the owner of the repair shop would be creating the fumes through manipulating the cars directly, which isn’t what the States are doing in this case.

These would be cars privately owned by individual owners who brought them in there to be repaired, and the cars would be there as permitees or licensees on the premises.

Joel S. Moskowitz:

Rather than give examples, I think the most helpful thing I could do is to tell you what EPA says it is and then maybe using that, because it’s their concept, and rather than us trying to figure out what it could be, we can see what EPA said it is.

In fact, they have defined it and you can find it in the regulations, which incidentally have not been cited by EPA, interestingly.

But the regulations defining “indirect source” would be focused very narrowly on what the definition is.

It is found in 40 CFR, Section 52.22(b), and I will read it because it is very short.

And the papers here anywhere?

Joel S. Moskowitz:

It has not been cited by EPA, and we have discovered it only belatedly because, as we said, it was tied to regulation of new parking structures.

Its operation has been suspended, whatever that means, and so we didn’t discover it until recently.

But that’s…

Would you repeat the citation, please, I didn’t get it.

Joel S. Moskowitz:

Surely; 40 CFR, Section 52.22(b) and what this says, it’s very short: “The term ‘indirect source’ means a facility, building, structure or installation which attracts, or may attract, mobile source activity that results in emissions of a pollutant for which there is a national standard.

Such indirect sources include, but are not limited to”, and then seven examples follow.

I think it’s worthwhile to pay a little bit of attention to what those examples are.

They include retail commercial and industrial facilities; recreation, amusement, sports and entertainment facilities; airports; office and governmental buildings; apartment and condominium buildings; education facilities.

What basically EPA is saying is that any place which anyone could ever want to get to for any purpose which is a manmade structure or facility is an indirect source.

It includes virtually every manmade object within the jurisdiction of EPA.

It is a very, very broad and sweeping concept and certainly represents an expansive view of EPA’s powers.

Now, interestingly, one of the examples given in this commodious list of what an indirect source is and the reason I wanted to read that, I think it shows you that it is far more than garages; it is everything.

This building is an indirect source.

Joel S. Moskowitz:

Everything is an indirect source.

But the curious thing is that also included on the list of indirect sources are highways and roads.

That, in fact, is interestingly given as the very first example.

There’s a difference between highways and roads and all these other indirect sources.

As I indicated, the other examples that are given are destinations, a place to which a person might want to go.

He is attracted to those destinations, such as having to go to work he is attracted to work, and then after work he’s attracted to going back home; he is attracted to the supermarket and maybe to the ballpark.

John Paul Stevens:

Well, he’s attracted to the superhighway, too, to get to work.

Joel S. Moskowitz:

Well, the difference between being attracted to the highway and being attracted to his destination is that the highway is the means of going to the indirect source.

John Paul Stevens:

Well, let’s assume that the Indianapolis Speedway is owned by the City of Indianapolis.

Does the Administrator have the power to regulate the —

Joel S. Moskowitz:

The Indianapolis Speedway is under this definition clearly an indirect source.

The sole point that I’m trying to make here is that unlike the other examples of indirect sources, unless one is a street dragster or, maybe in the case of the Indianapolis Highway, a racecar driver, few people are intrinsically attracted to highways.

So the difference between them and I’m only showing this difference to show how there is this drift from the statutory grounding.

The difference is is that the highway we could perhaps term as an indirect indirect source.

It enables one to get to an indirect source.

It is not an intrinsic attraction; it serves as the means by which one would get to the intrinsic attraction.

John Paul Stevens:

How about a sewer?

That is a conduit for effluent from one place to another.

Joel S. Moskowitz:

Well, of course, the sewer example, we have two dimensions to the sewer example, and I suppose they’re not trying to regulate that as an indirect source here.

John Paul Stevens:

No, because that’s why I brought it up; it’s not air pollution.

Joel S. Moskowitz:

I suppose the constitutional question’s as to whether that analysis would apply and is proper in this regards.

The point that we’re trying to make here is that the concept of the highway as an indirect source is not statutorily grounded.

Whether Congress could have written it in as they wrote in sewers or as the federal common law considered sewers is maybe a question we don’t have to consider now.

But I think the point that I’ve made so far is that highways are at best an indirect indirect source.

But as the sole authority for EPA’s application of its concept of indirect source makes plain, namely, the Administrator, it doesn’t stop there with solely saying that the highway is an indirect source.

Rather, it uses the concept that the highway is a source of pollution as a springboard for its next step and the Administrator in his preface says that what he’s concerned about is not so much the existence of highways.

What he’s concerned about is that the,“regulatory taxing and investment decisions made at all levels of government which encourage the use of highways by automobiles are also indirect sources”.

He cites his indirect sources as particular examples: licensing vehicles and operators, providing a system of traffic laws, as well as not making choices which would have discouraged the use of single-passenger automobiles and encouraged the use of mass transit.

So there’s a certain shift here from the physical objects which may attract someone to go in a mobile source of pollution, namely, a car, which as we indicated includes everything in the known universe.

There’s a shift to State policies which encourage the use of these automobiles as opposed to mass transit and State involvement not solely as an owner, because the owner concept is what’s been stressed before this Court, but the focus as set forth by the Administrator himself when he came up with this idea is not the State as an owner, but the State as a regulatory taxing and investment maker, the provider of traffic laws.

John Paul Stevens:

Mr. Mascowitz, on that very point, supposing you had a large factory with a large parking lot that would come within the indirect-source definition you’ve described.

Would it be your view that the Administrator would have the statutory authority to regulate that indirect source by saying you must adopt a company policy of certain timing of shifts or certain regulations in the parking lot or you can’t let anybody use the parking lot unless they have a car with the proper emissions, that kind of regulation of a private owner.

Would that be permissible?

Joel S. Moskowitz:

What we would say of course there was a good deal of dispute, as you recall, before the Congress and the Administrator abandoned the parking lots as an indirect source and told the Administrator not to regulate that; there was a good deal of constitutional discussion, and it’s a position which I don’t believe the State ever took a position on it and we don’t take one now.

But there’s a substantial difference between what the Administrator could do to that owner of the parking lot and what he’s prepared to do vis-à-vis the States, because if he were to tell the owner of the parking lot shut down your parking lot.

It is very different from telling the State I want you to exercise your police powers to regulate that private individual.

John Paul Stevens:

Well, would you answer my question?

Did you understand it?

Joel S. Moskowitz:

The question is, could he —

John Paul Stevens:

Does the Administrator have the statutory authority to promulgate a regulation affecting an indirect source such as the one described which would require it to adopt certain affirmative rules applying to its own employees, how they use the parking lots and the like, for the purpose of reducing concentrations of air emissions in that parking lot?

Joel S. Moskowitz:

Okay, I think the answer would be that indirect-source regulation may be permissible in some circumstances.

The question was identical to the one we were asking before: Is an indirect-source regulation ever permissible?

The position we’ve taken is that it is; but I’m not sure exactly what the parameters are, because the concept of indirect source we view as a drift from the statutory grounding, but in fact the drift has gone on so far that everything is an indirect source, not solely a parking lot.

So I am concerned with the slippery slope, because if we accede to the concept you could ever regulate an indirect source and the Administrator has made everything an indirect source, then the conclusion we’re logically drawn to is that he can regulate everything, and that’s a position which the State vehemently does not wish to take.

There may be some activities where the nexus of ownership is so close to the pollution that’s generated that one could really say that the owner is causing the pollution in some meaningful way.

But we’re simply saying that nexus doesn’t exist here; that the State is not, in fact, causing this pollution; the private people who are using the highways are causing the pollution; and furthermore, that even if the highways could be regarded as an indirect source of pollution, that this object, the highway as the indirect source of pollution, that the remedy adopted.

Namely, telling the States to exercise their police power to regulate not solely access to the highway.

John Paul Stevens:

Well, let me stop you right there.

If you make the assumption and I realize you’re very reluctant to agree to anything, I guess, other than that you don’t like this particular program but if you make the assumption that a privately owned factory and associated parking lot is an indirect source subject to regulation.

Would you not further agree that on those facts, the owner of those facilities could be compelled affirmatively to adopt certain controls of the use of those properties, such as times people can enter and leave, how many cars can be parked at any given time, whether they can be of a particular —

Joel S. Moskowitz:

If we make the assumption as an indirect source, yes, we would agree with that.

John Paul Stevens:

Then why can’t the Government make the State — I mean, under the statute, what’s the difference, then?

Joel S. Moskowitz:

The difference is this.

We’ve acceded, as you know, to the incinerator example.

The notion that the State owns an incinerator, private people come, they put their refuse in there, it burns up and violates emissions standards, the Federal Government could say to the State, like any other private incinerator owner.

You cannot let an excess of emissions come from your incinerator.

Now, where in the statute do you get the Administrator’s power to do that?

Joel S. Moskowitz:

Frankly, I don’t know.

John Paul Stevens:

Well, then why do you concede that he has power to do it?

Joel S. Moskowitz:

Perhaps because I’m being —

John Paul Stevens:

Because once you do, your case is much weaker than it otherwise would be, your statutory case.

Joel S. Moskowitz:

I agree, I agree and all I can say is that I’ve been very reluctant to concede that, because I don’t find it anywhere in the statute.

But I’m not troubled about conceding it, because the incinerator example is so much different from our example, because the difference is in the remedy.

You see, if the Administrator were to say I want you to attach a scrubber to your incinerator chimney.

John Paul Stevens:

Or hire ten more people.

Joel S. Moskowitz:

That is very different from saying I —

John Paul Stevens:

To operate your incinerator, including all sorts of inspectors and so forth.

Joel S. Moskowitz:

Very different from saying to the private party I want you to pre-treat your garbage under pain of civil and criminal enforcement, so that it does not pollute when you put it in my incinerator.

See, it’s not only a question of the subject of the regulation, namely, highways, incinerators, sewers, whatever.

An important thing to keep in mind is not solely the subject of the regulation, but the contents of the regulation.What is it that was being asked to happen here?

Thurgood Marshall:

Mr. Mascowitz, getting back to my brother Stevens’ question, if you’ve got a steel plant and a huge parking lot and it’s discovered that two-thirds of the pollution in that area comes from the plant, you’d have no problem with that, would you?

Joel S. Moskowitz:

No.

Thurgood Marshall:

What would you do.

You’d tell them to clean it up and one-third comes from the parking lot that you can’t touch.

Joel S. Moskowitz:

Well, as I said, I may appear to be waffling around the subject.

Thurgood Marshall:

Is there any way you take that position?

There’s no way for you to take that.

Joel S. Moskowitz:

No, I’m not taking that position as I say, I may appear to be waffling, and I don’t mean to be.

What I’m suggesting is —

Thurgood Marshall:

Let’s get to another one.

What about the bus lanes?

That is in the control of the State.

Right, it is; it is.

What’s wrong with that?

Joel S. Moskowitz:

The difference between — of course, the bus lanes, of course you don’t get to that question as to whether the bus lanes is a regulation of the highways, as opposed to the police-power regulation until you decide that the highway is an indirect source.

So once you’ve got to the point that the highway is an indirect source, then the question is, is the bus lane the regulation of the highway, or is the bus lane the regulation of people, of private sources of emission?

That’s also a tougher question than inspection and maintenance.

Thurgood Marshall:

So what’s the answer?

Joel S. Moskowitz:

Okay, the answer is, I —

Thurgood Marshall:

Let’s hear it.

Joel S. Moskowitz:

Okay, the answer is that what the State is being required to do is to use its police powers to keep people in the bus lane and not outside of it.

We would submit that that is not permissible, because what it really comes down to is, those people are going to get tickets; the State is forced to give them tickets under its police power and to use its criminal laws to enforce particular behavior upon its citizens.

The prime example of the regulation of a highway not involving the regulation of citizens under the police power —

Thurgood Marshall:

Do you agree that the bus lane is a good idea?

Joel S. Moskowitz:

No.

Thurgood Marshall:

You don’t think so.

Joel S. Moskowitz:

That’s my personal view, I don’t.

In fact, what it’s meant to do is to provide a —

Thurgood Marshall:

So you disagree with EPA, I thought you did.

Joel S. Moskowitz:

Well, the bus-lane idea is not so much that they’re going to clean up the air, but it is what they call to provide a disincentive to private traffic.

We had the experience in Los Angeles, you may have read about it the Diamond Lanes.

It wasn’t so much that the smog was any less; the smog was more, because the remaining lanes were so clogged with people idling as the bus lane was empty that there was more smog.

The strategy behind the bus lane really is that people will become so infuriated at the traffic congestion that they’ll take buses.

So I am not sure that it’s a good idea and, in fact, certainly not in Los Angeles.

William H. Rehnquist:

Mr. Mascowitz, what would be your view of an Administrator’s regulation that did not require the State to establish a bus lane, but simply said no more than X amount of exhaust emissions shall be permitted per given linear mile of freeway and if the State wants to do it by putting in a bus lane, fine; if they want to put it by limiting the cars on the highway, fine.

Would you view that differently than the bus-lane regulation?

Joel S. Moskowitz:

If something were available to the States, such as building a plastic dome over the freeway and somehow not letting those pollutants into the air, but putting it somewhere else to make it somehow more analogous to the sewer example, then perhaps we could say they could do that.

But, see, the prime evil here is not so much the subject matter of the regulation.

That’s why we haven’t been very hard on the notion abstractly of indirect source, that somehow a highway could be regulated.

The prime evil here and the one that I wish to stress and leave with this Court is what EPA’s contents of the regulations are, the notion that the State must use its police power to regulate private conduct to make not coming in for an inspection a violation.

To make not after the inspection and after 50% of the cars which are mandated to fail fail, not fixing it up within two weeks to make that a violation of the State’s criminal law and so on, to make the governor of the State.

The officers of the State liable under the statute to criminal and civil enforcement if they do not propose legislation which is acceptable to the Administrator.

The evil is the usurpation and arrogation of the State’s police power, not solely making highways the object of regulation.

William H. Rehnquist:

The Government’s withdrawn that, though, haven’t they?

Joel S. Moskowitz:

The Government has not withdrawn that.

What they have said, and I think it’s very plain from Footnote 14 of their brief, they wish now to reword their statutes or their regulations.

Rather than saying to a State, “State, you must pass a law that says X”, what they mean now to do is say, “State, we want you to achieve the result of a maintenance and inspection program somehow happening”.

Well, that was Mr. Justice Rehnquist’s question.

What if the Administrator just said no more than X amount of emissions per linear foot of expressway, and achieve it any way you want to?

Joel S. Moskowitz:

Our answer to that is that if the only ways that are available are to exercise our police power, then that is not an acceptable solution.

You think that is equally beyond his authority under the statute.

Joel S. Moskowitz:

If the ways that are available.

John Paul Stevens:

Well, it’s up to you to find out how to do it, just the same as any private polluter.

Joel S. Moskowitz:

Yes; but, you see, any private polluter, if the only ways that are available — this is why I use the astrodome over the freeway example.

If the only ways that are available are to use our police power to make certain conduct criminal, then the answer is no.

John Paul Stevens:

You simply have more power than a private polluter to do it and to do it more easily.

Joel S. Moskowitz:

The Administrator hasn’t gone to Mr. Justice Rehnquist’s position.

The Administrator rather presents this Court with a notion that it has gone to change the very regulations which are at issue here, and this deals with Mr. Justice Powell’s question of what’s left in this case.

Everything is left in this case upon which certiorari was granted, because the Administrator not only has not told this Court I’m going to withdraw these regulations, the case is moot.

He hasn’t said that.

He says I am going to give you these exact same regulations back, but the difference in the regulations is going to be the States are going to do exactly the same thing, physically they are going to do the same things; but the difference is that we are going to phrase it slightly differently.

Rather than specifically commanding passage of a state law, we are going to say achieve this result, knowing it requires the passage of a state law; but then you can view that simply as an indirect unfortunate circumstance.

John Paul Stevens:

May I ask you one more question?

Joel S. Moskowitz:

Surely.

John Paul Stevens:

Assuming that their regulation said this is the result we want to achieve: we want vehicles inspected, we want maintenance and all the rest of it.

They define what the result should be, and they said in substance if you don’t do it, we will do it with Federal employees and Federal money.

Would you agree they had that kind of power?

Joel S. Moskowitz:

Indeed.

We do agree they have that kind of power.

John Paul Stevens:

So it isn’t a question of what may be regulated, but really just the fact that they’re asking and the States ironically are asking to have Federal people to come into the states and do this regulating of their own citizens.

Joel S. Moskowitz:

Well, the short answer is, yes, we agree; but, you see, the question is not physical intrusion into the state or having State people on our freeways.

John Paul Stevens:

The different(Inaudible) will control the patronage.

Joel S. Moskowitz:

Well, the real issue is whether the State’s police power is going to be controllable by the Administrator, and that’s the issue in this case and we submit that’s the question before this Court, not whether highways are a proper subject of Federal regulation.

Federal officials have intruded into the states since the time of the Whiskey Rebellion.

Joel S. Moskowitz:

Indeed, and in fact many of the examples given by the Administrator are specific constitutional empowerment of the Federal Government to force the states to do particular kinds of things under the War Powers Act or Article III and various other examples; but no such powers exist under the Commerce Clause to force the states to use their police power in any particular manner, and that’s our major point with this case.

I think your position is that under this particular statute, the Federal Government has no authority to cause to be created or to force to be created a bus lane.

Joel S. Moskowitz:

Exactly, our basal position is that this is a traditional State function.

Although there’s only one person against which it could operate to create a bus lane, and that would be the State.

Joel S. Moskowitz:

We simply suggest that if you read the statute, you don’t find any specific authority, and the presumption is that traditional State functions are not likely to be found to be usurped or regulated by the Federal Government and that this statute does not present that specific authority and that, in the absence of that, this should not be surmised, it should not be read into the statute.

The presumption should be that traditional State authorities are to be maintained unimpaired by Federal statutes unless Congress says differently.

Then is your position also that under the Constitution, the Federal Government has no power to cause the creation of a bus lane?

Joel S. Moskowitz:

Indeed, that’s the next one, and I should properly cede that to the next.

But is that your position?

Joel S. Moskowitz:

No, it’s not my position.

Perhaps constitutionally they could; but Mr. Lord may have a contrary opinion.

Warren E. Burger:

I have a question, too; but I’m going to save it for your colleague, because you’re using his time now.

Joel S. Moskowitz:

I know.

Warren E. Burger:

Well, I have a question for you, and I’m going to use some of your colleague’s time to answer it.

Would you take the same position with respect to a privately owned toll road, that the Administrator cannot require the creation of a bus lane on a privately owned toll road?

Joel S. Moskowitz:

No, the short answer is that we’re not complaining so much at the subject matter of regulation, whether it be parking lots or highways or supermarkets or anything of that nature.

Now, we are not conceding that it’s in the statute, and I don’t wish to be any more indefinite than I have to be; I’m simply not trying to commit myself on issues I haven’t given sufficient thought to.

But the question is not the subject matter of regulation, but the contents of regulation.

What are they asking the States to do and in this case, what they’re asking the States to do is to make particular private conduct criminal.

That’s the evil here is the arrogation of State power, not the fact that they’ve chosen a highway as the subject matter of regulation.

But the privately owned highway is still indirect source.

Joel S. Moskowitz:

Indeed.

Well, because I thought you just answered.

Joel S. Moskowitz:

But everything’s an indirect source.

No, but you just answered Mr. Justice Rehnquist that, yes, that would be all right with you to do that.

Joel S. Moskowitz:

But, you see, the private operator doesn’t have the police power available to him.

I understand that.

I thought you said a while ago that there’s no authority to regulate any indirect source.

That was the one that I appeared to be waffling on, simply because I haven’t explored all its parameters, because once one suggests any indirect source, then one gets into the Administrator’s regulation where everything is an indirect source and I’m not willing to concede that he can regulate everything.

But the difference between a private highway operator doing this and the State doing this is that the private highway operator can’t give tickets.

He can’t use any police power, any criminal sanctions, to force people to stay in that bus lane.

I suppose he can say don’t you come back here anymore.

But uniquely the State is the one that has to keep people in the bus lanes, and the way they do it is through enforcing the system of traffic laws.

When the Administrator tells the State we demand you use your police power to ,“enforce our regulation”, to make that private conduct criminal under State law, that’s the evil we’re addressing here and that’s what we’re suggesting is nowhere to be found anywhere within the four corners of the Clean Air Act.

Warren E. Burger:

Alright, we’ll hear from Mr. Lord now.

Joel S. Moskowitz:

Thank you.

Warren E. Burger:

Thank you, Mr. Mascowitz.

Mr. Lord?

Henry R. Lord:

Mr. Chief Justice, and may it please the Court.

The constitutional argument will attempt to track the most recent metamorphoses of the EPA position as reflected in the two briefs and in the argument this morning.

While the shift in position of EPA, contrary to its statement, has been desperate and radical, the outcome does not change, and the effect upon the States possibly is even more intrusive than with the regulations which were presented to the Circuit Courts on petitions by the party states.

I think perhaps the way to demonstrate the difference would be to turn to Appendix A of the brief that we describe as Sovereign Gold, and that’s Pages 1a through 3a.

We have set out there an illustrative inspection and maintenance program.

It happens to be the one that was mandated for the State of Maryland.

Now, bear in mind that in the Metropolitan Baltimore Intrastate Air Quality Control Region, there are approximately 1.1 million private vehicles, light, medium and heavy-duty vehicles.

I suppose the number increases as much as sevenfold when you move into the Los Angeles Air Quality Control Region.

Now, looking at the regulation on the first page, when this becomes a Federal regulation in all its particulars as described by Mr. Randolph this morning, the essential change in Page 1a will be instead of saying, “The State of Maryland shall establish” at the bottom of the page “an inspection and maintenance program”, it will say, “The State of Maryland shall carry out a Federal inspection and maintenance program”.

We haven’t seen these new regulations, so all we can do is surmise as to what they may contain; but this would seem to be logically following from the positions stated in the briefs and in argument.

At the top of Page 2a in the fourth line, “The State will no longer have any power to exempt any category of vehicles”, and I’m sure that any exemptions that exist would be Federal exemptions.

The business about “the State shall submit within a particular time period legally adopted regulations” would no longer be necessary, because the Federal regulations would speak for themselves.

Now, all of the operative provisions, which would be Provisions (c)1 through 6 on 2A, (d) and (e) at the top of Page 3A, would become Federal regulations.

Reading down there, you can see that in 2 there is a standard set.

That’s one of the things EPA says it has a right to do, set a standard.

It doesn’t help you very much.

It’s a little like saying to a first-grade teacher you shall pass only 70% of the students on to the second grade without telling the teacher what sort of expectations as far as the learning experience should be instilled in that student.

It says that 30% of vehicles shall be failed, it happens to be 50% of the vehicles in some of the California Districts.

The frequency of inspection is stated in 1, and this again would be a new Federal regulation, it says that all vehicles, all 1.1 million vehicles, will have to be inspected periodically no more than one year apart.

So that’s the standard and the frequency.

We also have a frequency provision down in 5 at the bottom of the page that the first inspection cycle shall be in a year that expired during the time that this case was being considered by the courts.

Now, those would be the new Federal regulations.

Lewis F. Powell, Jr.:

So what’s going to happen to the provisions that are (f) on Page 3A?

Henry R. Lord:

Your Honor, those provisions I think would be out the same way the earlier provisions about the State having to submit within a particular time at the top of Page 2A, because the State presumably, if we follow strictly the argument that you’ve heard from EPA, would not have to adopt any legislation and would not have to adopt any regulations.

These would become the State statutes and regulations in effect with no further action of the State required.

Lewis F. Powell, Jr.:

This, what we’re looking at here, has now been withdrawn, has it?

Henry R. Lord:

Well, it has not been withdrawn, Your Honor.

The statement has been made by EPA and again made here this morning that they would be withdrawn and recast in this new way and I appreciate Justice Powell’s problem, because frankly the States have had the same problem trying to prepare for this case.

Henry R. Lord:

Now, as far as sanctions are concerned, I think we can begin to see the intrusive nature of this new approach.

If you look at 3, it says, “These shall include”that would be these provisions “sanctions against individual owners and repair facilities, retest of failed vehicles following maintenance” and then another sanction is for people who disconnect devices between the licensing year.

Bear in mind that in Maryland, for example, the licensing year for a vehicle is April 1 of this year till March 31st of the following year.

There is no safety-inspection program, so this would be a brand-new program.

The only safety inspection in Maryland, for example, is when a vehicle changes hands; a used cars is sold, it has to be inspected.

So for the first time, we have a new —

Do you know how many states do not have safety?

Henry R. Lord:

The great majority, it is in EPA’s brief.

I think EPA says between five and ten States have some sort of an annual safety program.

I think Virginia does, Maryland does not happen to have one and so it’s obvious here that despite what EPA would like to have this Court believe.

The sanction here is not merely a licensing sanction on an annual basis, the theory being, I suppose, that because the State licenses already, it’s not really very much to ask the State to conduct its licensing affairs in a different way.

There will have to be interim sanctions against violators.

Presumably, those will be criminal.

If someone has been inspected on a Monday and told within two weeks that he must bring his vehicle into compliance, does not, there has to be an interim sanction there.

It could be a de-licensing.

I suspect that if what he does the second time is to disconnect the devices he’s placed upon his car, most likely a criminal sanction.

Where is the source of it?

The source is going to have to be this new Federal regulation, because Maryland does not happen to have any legislation on that subject and at this point has not had any reason to have any legislation on the point.

So I think it’s much too seductive an argument to suggest that legislation is not inevitable.

This program will be one that will have to be managed by a group of people.

Now, we’ve had the helpful suggestion from EPA that we can contact this out and maybe even make money on it.

I don’t know that the states have to adopt the suggestions made by Counsel.

Obviously, that would have to be considered.

Arizona has done that.

Henry R. Lord:

That’s correct, Arizona has done it, and I think that there was a referendum in November at which that program was approved and effective about 12 days ago.

That certainly is an option.

Thurgood Marshall:

They could have private inspections.

Henry R. Lord:

Certainly.

Thurgood Marshall:

Several states have done that.

Henry R. Lord:

I suppose, Your Honor, very many governmental programs could be leased out.

Henry R. Lord:

The whole budget-making program, I suppose, could be leased out to an accounting firm; but it seems to me that one of the essences of sovereignty is that the states continue to have the options available to them as to whether this will be done or whether it won’t be done, and to suggest that everything is foreclosed to a state except the option of hiring someone to carry out the program I think by its own terms is intrusive enough.

Now, when you look at the constitutional framework of this and bear in mind, we also have had another gracious concession by EPA that despite the clear language of Section 113, this Administrator at least will not seek criminal sanctions against states for violations here.

Despite the fact that there’s a $25,000-a-day fine and a one-year-in-jail per-day fine or both, that this Administrator has decided that he won’t seek that against states.

Now, that’s somewhat reassuring, but hardly puts the case to rest.

Obviously, the injunctive remedies here could be very difficult for states to live with.

Now, this is advanced to this Court as a comprehensive substitute transportation-control plan.

Indeed, that is the only way in which this program could have any Federal authority whatsoever under Section 110.

Now, I’ll come later to the significance of this lack of comprehensiveness.

But turning to the —

Mr. Lord, I am late in asking you this question; but I want to be sure I understand it, even though belatedly.

Your argument is proceeding upon the premise, upon the hypothesis that the statute does authorize what the Administrator has purported to do and you’re saying that it is unconstitutional?

Is that correct?

Henry R. Lord:

That’s correct, Your Honor.

I should have said that in advance.

I am assuming that we have lost the statutory argument.

That is what I thought.

Henry R. Lord:

I don’t think we should.

But this is a question really not addressed in the Courts of Appeals.

They construed the statute because of grave constitutional doubts about any other construction.

Am I correct?

Henry R. Lord:

Well, Your Honor, if you read the Fourth Circuit’s opinion and the Ninth Circuit’s opinion carefully, it’s a little hard to —

I thought I had.

Henry R. Lord:

Say this precisely.

I should say, Your Honor, if one read them carefully rather than be as direct, I got the direct impression that the court had taken an early look — in fact, discussed in some detail the constitutional problems and had followed the doctrine that when the constitutional problems seem to be overwhelming.

If there is a way in which the constitutional issue can be avoided, the court would do it, and it is clear that those are based on statutory holdings.

But I think it’s also clear that both of those courts, if more had been written, would have found the program as stated then, pre-National League of Cities by almost a year, both those cases unconstitutional.

But now your argument is assuming that contrary to the Courts of Appeals that the statute does permit what the Administrator did do here.

Henry R. Lord:

Correct, Your Honor and turning to that, first of all, there is an irony that after describing this new Federal program, we find that the only way that the Federal Government has gotten to the point of having authority to do it is through the mechanism of a prior finding several years ago that the States didn’t have sufficient authority to do this themselves, that they had not presented enough.

So the States were told and we’re all told back in 1973 that they had not produced enough authority to carry out the program.

That was the exciting cause, if you will, of the intrusion of the Federal Government.

Henry R. Lord:

Now, we’re told that these regulations have been withdrawn and that there’s been inherent Federal authority all along to do this through Federal regulations.

Now, the point was brought up by Justice Stevens about a swarm of Federal officials coming into the states and perhaps being more intrusive if not in a constitutional sense, in a governmental sense, than what we are opposing today.

That, I can only say, is a possibility.

Apparently, the Federal Government, perhaps based on the Prohibition experience, has decided that that is not what it wants to do, that it will not take that issue on.

We don’t know why and we haven’t been informed; but our position constitutionally is, just as Mr. Mascowitz said, that the Federal Government has ample authority to take this program over itself.

In fact, I would go so far as to say that the Federal Government could preempt this entire program, carry it out through Federal funds and Federal employees and by a notice some time prior to the licensing expiration period in a state notify a state that X vehicle is not yet in compliance and the state would then have to use in that limited intrusion its licensing function to not issue a state license.

We happen to feel that that would not be so intrusive as to be constitutionally violative.

Anything short of that, however, would be.

Could the Federal Government say no car on the highway without a Federal sticker?

Henry R. Lord:

That’s correct, but then the question comes up, and we’ve talked about this, as to whether that would require a separate Federal registration and licensing or whether that could be carried out and executed through the State licensing function.

Our conclusion is, even though perhaps it’s a concession that we don’t have to make, that the Federal Government could use the existing licensing and de-licensing mechanism of the States with the Feds.

I take it the Federal Government under your view would have to have its own inspection system.

Henry R. Lord:

That’s correct.

Would that not sticker on the Federal (Inaudible)?

Henry R. Lord:

Sure, that’s right, But it could then say to the States if the vehicle coming in for licensing does not have the Federal sticker, you cannot give it tags, that’s my point.

The Federal Government would give it tags or not.

If you gave it a tag, they’d have to take it off the street; if you didn’t give it a tag, they’d have to take it off the street.

Henry R. Lord:

There would be the additional sanctions of the State against the vehicle.

That’s all, Your Honor.

So the State police could pick the guy up, whereas in the other system perhaps you’d have to wait for the Federals.

Henry R. Lord:

Right, we may have to have the swarm that Justice Stevens was concerned about.

Now, I think it’s interesting that the EPA has said to this Court this morning that no constitutional source was cited for the 1973 regulations and all of these regulations and this whole theory was conceived of in the latter half of 1973, within 10 months after EPA lost NRDC v. EPA.

That’s simply not the case.

In fact, right in the preamble to the Administrator’s theories, which have been discussed at length today, is a citation to United States v. California as the authority for what it is doing.

In fact, US v. California was so appealing to EPA that in its brief in chief, United States v. California was cited four times.

The United States v. California decision is really more helpful to the States than it is to the EPA and the reason for that is that in the California case, there was a railroad owned by the State of California that connected 45 State-owned wharves in San Francisco with a bunch of industrial users some distance away at an interstate railroad.

It charged for the service, just like any private railroad would have; and as such, the Court found that there was no valid distinction between what California was doing and what a private railroad was doing.

What we have here is the support for our conclusion that State facilities are in no way exempted from the Clean Air Act.

In fact, State facilities are included; but it’s not the type of State facility that EPA would urge this Court to include.

It would be if the State did own an incinerator, which it doesn’t, that’s a traditionally municipal function, or a sewage treatment plant, which it doesn’t — again a traditionally local or municipal function, those would be covered.

Henry R. Lord:

The most obvious example and the perfect parallel to United States v. California is the State auto fleet.

Every State owns a fleet of vehicles.

If those vehicles are polluting, those vehicles can be reached under this Act and can be constitutionally reached.

Now, of course they can be reached; I think everybody here in the audience agrees with that, but how can they be reached?

Can the Administrator tell the State you have to adopt regulations governing your vehicles?

Henry R. Lord:

Yes, the State as the operator of a State auto fleet can be treated just as a private industrial owner that owned a fleet of vehicles.

Alright, so the Administrator can tell the State you must regulate this, even though it might involve the exercise of the police powers.

Henry R. Lord:

These vehicles are in violation.

Now, once again, I’m passing the statutory argument here; but constitutionally, the State could be told that those vehicles must be brought into compliance, and the full enforcement power of the Federal Government could be brought against it.

Whatever it takes to do, you must do it and how is that different from the case before us?

Henry R. Lord:

Well, Your Honor, without trying to reopen all the argument about —

No, no, we’re talking constitutionally; that’s your argument.

Henry R. Lord:

Alright, constitutionally.

Constitutionally, the State is being regulated itself.

It’s not told to go regulate someone else.

Yes, it is, it’s told to regulate the drivers and the repairmen of those cars.

Henry R. Lord:

No, Your Honor, with all due respect, that’s not correct.

The State owns them, and the State maintains them through State garages and the simple direction is that the State must take steps to bring its own vehicles into compliance.

It’s not regulating any third persons at all.

How constitutionally is that different from saying the State must take steps to bring its own roads into compliance?

Henry R. Lord:

Well, the difference, Your Honor, is that in this case the State is not being told to bring its own roads into compliance; it’s being told to bring the drivers of vehicles which may happen to use State roads into compliance.

The Federal Government has decided that it is not going to enforce the program.

I don’t know whether appropriations were not available or just appropriations were not sought; but that was obviously a conscious governmental decision.

EPA had to cast around, or Congress, for a police power somewhere to enforce this statute.

It spotted the police power of the states, and then it conscripted it.

William H. Rehnquist:

Mr. Lord, could I interrupt?

I think it’s relevant to your colloquy with Justice Stewart.

Your analogy to the California case suggests that what you’re arguing is something like this, that to the extent that the State is an owner of a road and therefore there’s power over it, like the owner of a factory parking lot, it may be compelled to do things which other owners might be compelled to do; but it may not be compelled to exercise governmental powers which private owners don’t have.

It couldn’t exercise the criminal sanctions and so forth.

Is that the essence of what you’re saying?

Henry R. Lord:

That’s correct.

Thurgood Marshall:

Mr. Lord, are you giving away too much in your agreement as to the State could have to do something on its own vehicles?

Do you include fire and police in there?

Henry R. Lord:

Well, no, Your Honor.

Thurgood Marshall:

The Federal Government can — are you going that far?

Henry R. Lord:

No, I am glad you brought that up, because I have just drawn a distinction without explaining its significance.

Obviously, when you’re talking about a municipality or a county or a township, they do not share the Tenth and Eleventh Amendment protections that a state has, and they cannot urge on this Court with any degree of success — at least, they’ve never been able to do so in the past.

The State’s sovereignty arguments available to a state.

Fire and police protection have been essentially local matters, and so I don’t think they really fall within the example that I gave.

I do think that the State auto fleet.

Well, those vehicles could be reached under the same theory as my colloquy with Justice Stewart.

Henry R. Lord:

I may be, Your Honor; but I do think constitutionally that that’s correct.Is it in this case?

John Paul Stevens:

It may be you could take it back perhaps on another page?

Thurgood Marshall:

Mr. Lord, following up on Justice Stevens’ question for a minute, if the Federal Government sets out to reach this fleet of motorcars that’s operated by the State as you concede it may, can the Administrator say to the State you shall fine every driver who does not keep his vehicle in compliance with applicable Federal standards not less than $100?

Henry R. Lord:

I would have a great trouble with that.

I think to the extent that it doesn’t require operation on anyone else, even another State employee in the form of a sanction, I think it’s unconstitutional.

Once it gets beyond that, I’m afraid it gets into a dangerous area.

Now, the arguments that I’m presenting today are hardly novel.

In fairness, we have been waiting with bated breath to receive the reply brief from the Federal Government which we received on Monday to see if they were at that point able to find a single case that stood for the proposition that they espouse, and they have not.

It’s clear that there is no case which stands for the proposition that the Commerce Clause can be used to dragoon the police power of a sovereign state.

Now, analogies have been flying around this courtroom and through the briefs and as recently as the reply brief that indicate —

This is on the premise, I take it, that the so-called mere enforcement requirement of Federal regulations would necessarily involve the police power.

Henry R. Lord:

I think so in the broadest sense, Your Honor.

Whether it’s police power in getting someone out of an exclusive bus lane and telling him that he’s got to pull over and be fined or ticketed.

Or having that power.

Henry R. Lord:

Right, or going back to the Maryland v. Wirtz line and the National League of Cities line, the whole governance of a state and the decision-making in the state and the budget-making function, and which programs will advance and which will not advance, is part of the exercise of the police power for the benefit of the health, the safety and welfare of the population of the states.

Well, listen, the proprietary power, if looked at one way at least, is not unlike the power of the owner of a private turnpike would have to limit the traffic density on his turnpike at the behest of the Administrator and the Administrator concededly, as we’ve heard both under the statute and under the Constitution, would have the power to regulate the owner of a private turnpike and say no more than so many vehicles a minute on the turnpike; and why couldn’t the same thing be said to the State, because the private operator doesn’t have any police power; he just has the proprietary power that comes from owning the turnpike?

Henry R. Lord:

Which means that if he can own it, he can also shut it down or limit access to it.

That’s right, or limit access to it.

Henry R. Lord:

Well, I have a great deal of problem with the proposition that the State could, for example, declare a moratorium on new-car registrations.