This Court will not review judgments of the Courts of Appeals
invalidating transportation control plan regulations promulgated by
the Administrator of the Environmental Protection Agency under the
Clean Air Act and imposed on various States as elements of an
implementation plan where the federal parties have not only
renounced an intent to seek review of the invalidation of certain
regulations but have conceded that those remaining in controversy
are invalid unless modified.
No. 75-909, 521 F.2d 825 and 827; No. 75-960, 530 F.2d 215; Nos.
75-1050 and 75-1055, 172 U.S.App.D.C. 311, 521 F.2d 971, vacated
and remanded.
Page 431 U. S. 100
PER CURIAM.
These cases arise under the Clean Air Act, as amended by the
Clean Air Amendments of 1970, 84 Stat. 1676, 42 U.S.C. § 1857
et seq., and raise questions concerning the authority of
the Administrator of the Environmental Protection Agency to compel
various types of implementation and enforcement actions by the
States. Four separate decisions in the Courts of Appeals reviewed
transportation control plans promulgated by the Administrator for
several States which had previously failed to submit adequate plans
of their own. Four petitions have been filed seeking review of
those decisions which, with limited exceptions, invalidated the
Administrator's transportation control plans which had been adopted
in the form of regulations.
Those transportation control plans have a variety of aspects
Page 431 U. S. 101
which need not be discussed in great detail to explain our
disposition of these cases. In general, they imposed upon the
States the obligations (1) to develop an inspecting and maintenance
program pertaining to the vehicles registered in the affected Air
Quality Control Regions, and to submit to the Administrator, by
fixed deadlines, both a schedule of compliance and the operative
regulations by which the program was to be run; (2) to develop
various retrofit programs pertaining to several classes of older
vehicles, in order to minimize several different types of
emissions; (3) to designate and enforce preferential bus and
carpool lanes, on streets sometimes specifically identified in the
regulations and sometimes left to be chosen by the State; (4) to
develop a program to monitor actual emissions as affected by the
foregoing programs; and (5) to adopt certain other programs which
varied from State to State.
The critical fact about all of the foregoing obligations was
that they were imposed on the States, under 40 CFR § 52.23 (1976),
as elements of an applicable implementation plan. A State's failure
to carry out any of them would therefore not merely allow the
Administrator to step in and carry them out himself under §
113(a)(2) of the lean Air Act, [
Footnote 1] but would,
Page 431 U. S. 102
in the view of each of the Courts of Appeals, render the State
"in violation of any requirement of an applicable implementation
plan" and therefore apparently subject to direct enforcement
actions against it under the provisions of § 113(a)(1), 42 U.S.C. §
1857c-8(a)(1):
"Whenever, on the basis of any information available to him, the
Administrator finds that any person is in violation of any
requirement of an applicable implementation plan, the Administrator
shall notify the person in violation of the plan and the State in
which the plan applies of such finding. If such violation extends
beyond the 30th day after the date of the Administrator's
notification, the Administrator may issue an order requiring such
person to comply with the requirements of such plan or he may bring
a civil action in accordance with subsection (b) of this
section."
Under dual challenges by the States that these regulations were
not within the mandate of the Act, and that, if they were, they
were in violation of the Constitution, the United States Courts of
Appeals for the Ninth, Fourth, and District of Columbia Circuits
struck them down. All of the courts rested on statutory
interpretation, but noted also that serious constitutional
questions might be raised if the statute were read as the United
States argued it should be.
Brown v. EPA, 521 F.2d 827
(CA9 1975);
Arizona v. EPA, 521 F.2d 825 (CA9 1975);
District of Columbia v. Train, 172 U.S.App.D.C. 311, 521
F.2d 971 (1975);
Maryland v. EPA, 530 F.2d 215 (CA4 1975).
The only substantial variation in the outcome of these decisions
[
Footnote 2] was that the
District of Columbia Circuit affirmed regulations requiring the
creation of bus lanes, the purchase by the affected jurisdictions
of a fixed
Page 431 U. S. 103
number of new buses, and the denial of registration to a vehicle
whose owner is unable to produce a federal certificate of
compliance, should a federal inspection program be instituted.
The Solicitor General's petitions from all three Courts of
Appeals challenged them only insofar as they invalidated the
regulations requiring state inspection and maintenance programs. In
addition, we granted the petition for certiorari of the
Commonwealth of Virginia on its challenge to the regulations which
the District of Columbia Circuit had upheld. Prior to argument, the
Solicitor General informed the Court that repeal of the bus
purchase regulations was imminent, Reply Brief for Federal Parties
25, [
Footnote 3] and that issue
was thereby effectively removed from the case. Thus, the litigation
has undergone a great deal of shrinkage since the decisions below
due to the federal parties' exercise of their prerogative not to
seek review of the invalidation of certain regulations.
But the federal parties have not merely renounced an intent to
pursue certain specified regulations; they now appear to admit that
those remaining in controversy are invalid unless modified in
certain respects:
"The Administrator . . . concedes the necessity of removing from
the regulations all requirements that the States submit legally
adopted regulations; the [Administrator's] regulations contain no
requirement that the State adopt laws."
Brief for Federal Parties 20 n. 14. The federal parties'
position now appears to be that, while the challenged
transportation plans do not require the enactment of state
legislation, they do now contain, and must be modified to
eliminate, certain requirements that the State promulgate
regulations. See Reply Brief for Federal Parties
14 n. 22.
We decline the federal parties' invitation to pass upon the EPA
regulations when the only ones before us are admitted to be in need
of certain essential modifications. Such action on
Page 431 U. S. 104
our part would amount to the rendering of an advisory opinion.
For this Court to review regulations normally required to be first
reviewed in the Court of Appeals, before such review is had, is
extraordinary.
See Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579,
343 U. S.
584-585 (1952). For it to review regulations not yet
promulgated, the final form of which has only been hinted at, would
be wholly novel.
See generally Columbia Broadcasting System v.
United States, 316 U. S. 407,
316 U. S.
417-419 (1942);
United States v. Los Angeles &
Salt Lake R. Co., 273 U. S. 299,
273 U. S.
309-310 (1927).
The judgments of the respective Courts of Appeals are vacated,
and the cases are remanded for consideration of mootness and such
other proceedings as may be consistent with this opinion.
It is so ordered.
[
Footnote 1]
Section 113(a)(2), 42 U.S.C. § 1857c-8(a)(2), provides:
"Whenever, on the basis of information available to him, the
Administrator finds that violations of an applicable implementation
plan are so widespread that such violations appear to result from a
failure of the State in which the plan applies to enforce the plan
effectively, he shall so notify the State. If the Administrator
finds such failure extends beyond the 30th day after such notice,
he shall give public notice of such finding. During the period
beginning with such public notice and ending when such State
satisfies the Administrator that it will enforce such plan
(hereafter referred to in this section as 'period of federally
assumed enforcement'), the Administrator may enforce any
requirement of such plan with respect to any person -- "
"(A) by issuing an order to comply with such requirement,
or"
"(B) by bringing a civil action under subsection (b) of this
section."
[
Footnote 2]
Prior to the decision of the Ninth Circuit, a similar set of
regulations pertaining to Pennsylvania had been upheld by the Third
Circuit.
Pennsylvania v. EPA, 500 F.2d 246 (1974). That
decision is not presently before the Court.
[
Footnote 3]
The regulations were officially rescinded on February 8, 1977.
42 Fed.Reg. 7957.
MR. JUSTICE STEVENS, dissenting.
The action the Court takes today is just as puzzling as the
federal parties' position. Unless and until the Environmental
Protection Agency rescinds the regulations in dispute, it is
perfectly clear that the litigation is not moot. Moreover, an
apparent admission that those regulations are invalid unless
modified is not a proper reason for vacating the Court of Appeals
judgments which invalidated the regulations.
If the Court is satisfied that the EPA Administrator will modify
the regulations regardless of the outcome of the litigation, the
writs of certiorari should be dismissed as improvidently granted.
On the other hand, if the survival of the regulations is dependent
on our disposition of these cases, we should address the merits and
resolve the issues which have been fully briefed and argued. By
vacating the judgments below, the Court hands the federal parties a
partial victory as a reward for an apparent concession that their
position is not supported by the statute. I respectfully
dissent.