WILLIAM K. REILLY, ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY, ET AL., PETITIONERS V. ROBERTA DELANEY, ET AL. No. 90-456 In The Supreme Court Of The United States October Term, 1990 The Solicitor General, On Behalf Of William K. Reilly, Administrator Of The Environmental Protection Agency (EPA), Et Al., Petitions For A Writ Of Certiorari To Review The Judgment Of The United States Court Of Appeals For The Ninth Circuit In This Case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit PARTIES TO THE PROCEEDINGS BELOW The petitioners before the court of appeals were Roberta Delaney, Gayle Hartmann, David Horley, Alama Williams, Maureen Mageau-Decindis and Brian McCarthy. The respondents before the court of appeals were William K. Reilly, Administrator of the Environmental Protection Agency (EPA), and EPA. The State of Arizona intervened in the court of appeals in support of the Administrator and EPA. TABLE OF CONTENTS Questions Presented Parties To The Proceedings Below Opinion below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion OPINION BELOW The amended opinion of the court of appeals (App., infra, 1a-16a) is reported at 898 F.2d 687. JURISDICTION The judgment of the court of appeals (App., infra, 18a) was entered on March 1, 1990. A petition for rehearing was denied on May 16, 1990 (App., infra, 17a). On August 9, 1990, Justice O'Connor extended the time for filing a petition for a writ of certiorari to and including September 13, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The relevant provisions of the Clean Air Act, 42 U.S.C. 7401 et seq., are set out in the appendix to this petition. See App., infra, 19a-22a. QUESTION PRESENTED Whether the Clean Air Act authorizes a court of appeals, in a proceeding reviewing agency action, to order the Administrator of the Environmental Protection Agency to prepare a "federal implementation plan" within a specified time period. STATEMENT The Clean Air Act, 42 U.S.C. 7401 et seq., provides two basic avenues to obtain judicial relief relating to EPA's implementation of the Act. Section 307(b)(1) authorizes the courts of appeals to review -- and if necessary reverse -- various actions of the Administrator. 42 U.S.C. 7607(b)(1). Section 304(a)(2), by contrast, authorizes the district courts to compel agency action where "there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." 42 U.S.C. 7604(a)(2). In this case, respondents commenced an action against the Administrator under Section 307 of the Clean Air Act challenging his approval of the State of Arizona's revisions to its state implementation plan. The court of appeals held that the Administrator's action was, in certain respects, arbitrary and capricious, and it reversed the Administrator's approval. The court of appeals also went one step further and ordered the Administrator to promulgate a "federal implementation plan" -- to replace the disapproved state plan -- within six months. The question presented is whether the court of appeals has authority to impose that requirement, which seriously impairs the Administrator's ability to carry out his responsibilities under the Act. 1. The Clean Air Act creates a comprehensive national program for combatting pollution. The basic structure of the present Act was established by the Clean Air Act Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676, and is set out in Sections 109 and 110 of the present Act. Congress charged the Administrator of EPA with developing "national * * * ambient air quality standards" (NAAQS). Section 109(a), 42 U.S.C. 7409(a). Congress then required each State to develop and submit to EPA, within nine months after promulgation of the NAAQS, a state implementation plan (SIP) to achieve and maintain the NAAQS within the State. Section 110(a)(1)(A), 42 U.S.C. 7410(a)(1)(A). The Administrator was required to determine whether each SIP met certain statutory requirements, including the attainment of applicable "primary" NAAQS, as "expeditiously as practicable" but generally not later than three years from the date of approval of the SIP. Section 110(a)(2), 42 U.S.C. 7410(a)(2). If a State failed to submit a SIP, or if the Administrator determined that the SIP failed to meet the Clean Air Act's requirements, the Administrator was empowered to promulgate his own plan (a federal implementation plan or FIP) for the State. Section 110(c)(1), 42 U.S.C. 7410(c)(1). See generally General Motors Corp. v. United States, 110 S. Ct. 2528, 2530 (1990). In 1977, Congress amended the Clean Air Act to respond, in large part, to the States' widespread failure to meet the attainment dates of the 1970 Amendments. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685. The 1977 Amendments retained much of the structure of the 1970 Amendments, but they also created the concept of a "nonattainment area" -- an area where air quality falls short of NAAQS. Section 171, 42 U.S.C. 7501. The 1977 Amendments required each State containing a nonattainment area to prepare and secure EPA approval of a new SIP by July 1, 1979. Sections 110(a)(2)(I), 172(b), 42 U.S.C. 7410(a)(2)(I), 7502(b). Congress extended the deadline for attainment of the primary NAAQS in a nonattainment area to December 31, 1982. Section 172(a)(1), 42 U.S.C. 7502(a)(1). Further extensions were permitted for "photochemical oxidants" (ozone) and carbon monoxide, but only if the State demonstrated that attainment was not possible by 1982, despite the implementation of all reasonably available measures, and that attainment would be achieved "as expeditiously as practicable but not later than December 31, 1987." Section 172(a)(2), 42 U.S.C. 7502(a)(2). The 1977 Amendments retained the provisions requiring the Administrator to promulgate a FIP if the State failed to submit an adequate SIP. See Section 110(c)(1), 42 U.S.C. 7410(c)(1). See generally General Motors, 110 S. Ct. at 2530. As we have noted, the Clean Air Act provides aggrieved persons with two forms of judicial relief. First, Section 307(b)(1) authorizes a court of appeals to review, and if necessary reverse, various actions of the Administrator, including "the Administrator's action in approving or promulgating any implementation plan" for achieving the Act's ambient air quality standards. 42 U.S.C. 7607(b)(1). See also 42 U.S.C. 7607(d). Section 307(e) states that "(n)othing in this chapter shall be construed to authorize judicial review of regulations or orders of the Administrator under this chapter, except as provided in this section." 42 U.S.C. 7607(e). Second, Section 304(a)(2) provides that a person may commence a civil action in a district court against the Administrator of EPA where "there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." 42 U.S.C. 7604(a)(2). The district court has jurisdiction "to order the Administrator to perform such act or duty, as the case may be." 42 U.S.C. 7604(a). 2. This case arises from a challenge by respondents -- a group of Arizona citizens -- to the Administrator's approval of Arizona's state implementation plan for portions of Maricopa and Pima Counties. In 1978, EPA designated parts of those counties (which embrace, respectively, Phoenix and Tucson) as nonattainment areas for carbon monoxide. In 1979, Arizona submitted SIP revisions for both areas and applied for an extension of the 1982 attainment deadline to 1987. In 1982, the Administrator gave conditional approval to Arizona's SIP revisions. Three years later, respondents filed an action against the Administrator in district court, under Section 304(a)(2) of the Clean Air Act, to obtain an order declaring the Arizona SIP revisions inadequate and requiring EPA to perform its "non-discretionary" duty to prepare a FIP for Maricopa and Pima Counties (McCarthy v. Thomas, No. 85-CV-344 (D. Ariz.) (complaint filed Apr. 8, 1985)). See App., infra, 3a. /1/ Upon the agreement of the parties, the district court entered an order staying the suit until January 1, 1987. See McCarthy v. Thomas, supra (order filed Feb. 19, 1986). In late 1986, the Administrator denied Arizona's application for a deadline extension, revoked its 1982 conditional approval, and ultimately did not approve Arizona's subsequent SIP revisions. See App., infra, 3a. /2/ The district court subsequently ordered the Administrator to prepare a FIP no later than six months after September 30, 1987, unless, before that date, Arizona submitted and the Administrator approved adequate SIP revisions. McCarthy v. Thomas, supra (order filed Aug. 11, 1987). The court later extended that deadline to August 10, 1988. McCarthy v. Thomas, supra (order filed Apr. 19, 1988). Arizona submitted SIP revisions and the Administrator ultimately approved them on August 10, 1988. See App., infra, 3a. Respondents then brought the present action in the court of appeals, under Section 307(b)(1) of the Clean Air Act, challenging the Administrator's approval of Arizona's SIP revisions. The court of appeals granted the petition for review and vacated the Administrator's approval. The court first overturned the Administrator's determination that the nonattainment areas are entitled to take three years, from the date of SIP approval, to come into compliance. The court held that, where a state has failed to meet Congress's 1982 attainment deadline, the SIP must provide for attainment "as soon as possible." App., infra, 4a-8a. The court next rejected, as "arbitrary and capricious," the Administrator's failure to require adoption of a number of air pollution control measures that, in the court's view, EPA guidance documents presume are "reasonably available." The court stated that under EPA's guidelines Arizona must bear the burden of demonstrating that the measures would not accelerate the projected attainment date. Id. at 8a-11a. The court also rejected, as arbitrary and capricious, the Administrator's determination that the Maricopa County SIP revisions contain adequate "contingency" and "conformity" provisions. Id. at 11a-13a. The court denied relief on respondents' other challenges to the SIP revisions. Id. at 13a-16a. In the concluding paragraph of its opinion, the court stated: We vacate the EPA's approvals of Maricopa and Pima counties' Clean Air Act implementation plans. We direct the EPA to disapprove these plans and to promulgate federal implementation plans consistent with this opinion within six months. Id. at 16a. The government filed a petition for rehearing and a suggestion of rehearing en banc limited to the question of the court of appeals' relief. /3/ The government urged that the court of appeals lacked authority to order EPA to promulgate a FIP and that the six-month deadline for FIP promulgation was inconsistent with the statute and unreasonable. On May 16, 1990, the court of appeals denied the petition without opinion. App., infra, 17a. REASONS FOR GRANTING THE PETITION As this Court recently explained, the Clean Air Act provides specific, carefully crafted remedies for agency inaction, and the courts do not have license to supplant the statutory remedies with judicially created ones. See General Motors Corp. v. United States, 110 S. Ct. 2528, 2533-2534 (1990). That reasoning applies with equal force in this case. Section 307 of the Clean Air Act authorizes the court of appeals to review and, if necessary, reverse the Administrator's approval of Arizona's SIP revisions. The court had no authority, however, to take the further step of ordering the Administrator to promulgate a FIP within a specified time period. This Court's decision in General Motors specifically identified Section 304 of the Clean Air Act, which authorizes the district courts to compel agency action, as the appropriate source of judicial relief in the event that the Administrator fails to perform a non-discretionary duty. The court of appeals did not have the benefit of this Court's General Motors decision at the time it entered its decision. We therefore suggest that this Court grant our petition, vacate the court of appeals' judgment insofar as it orders the Administrator to prepare a FIP within a specified time period, and remand the case for further consideration in light of that decision. In the alternative, we urge this Court to reverse summarily the court of appeals' judgment insofar as it orders inappropriate relief. 1. In General Motors, the petitioners argued that EPA's failure to approve a State's SIP revisions in a timely manner barred EPA from enforcing the provisions of an existing SIP. This Court rejected that contention, holding that Congress did not intend to bar EPA enforcement suits in those circumstances and that the courts have no authority to impose such a bar. 110 S. Ct. at 2533-2534. The Court explained that the Clean Air Act provides "statutory remedies * * * when EPA delays action on a SIP revision" and that courts accordingly should not create other remedies in their stead. Id. at 2534. The Court specifically stated that "the statutory remedies for EPA inaction include a suit to compel agency action under Section 304(a)(2)." Id. at 2534 n.4. As we have explained, Section 304 authorizes a district court to order the Administrator to perform non-discretionary duties. See 42 U.S.C. 7604. The Court's decision in General Motors arose in the context of an EPA enforcement suit, brought under Section 113(b) of the Act (42 U.S.C. 7413(b)), against a pollution source. The Court's reasoning, however, is equally applicable in this case. Here, respondents brought a Section 307 suit seeking judicial review of the Administrator's approval of Arizona's SIP revisions. Section 307 authorizes a court of appeals to review, and, if necessary, reverse, the Administrator's approval. Once the court of appeals reversed the Administrator's action, however, that court's reviewing function was at an end. The court had no authority to require EPA to promulgate a FIP within a specified time period. Section 110(c) sets forth the Administrator's obligations in the event a State's proposed SIP revisions are rejected. See 42 U.S.C. 7410(c). If the Administrator fails to fulfill his statutory obligations, respondents have a remedy. As General Motors indicates, they may bring a Section 304 suit to compel the Administrator to perform a non-discretionary duty. Indeed, the principle recognized in General Motors applies with even greater force in this case. As an initial matter, the court of appeals was not entitled to presume that the Administrator would fail to promulgate a FIP in a timely manner. See FCC v. Schreiber, 381 U.S. 279, 296 (1965) (administrative agencies are entitled to the presumption "that they will act properly and according to law"). See also, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1971). Additionally, Congress has not given the courts of appeals jurisdiction to provide a remedy for the Administrator's failure to perform a non-discretionary duty; to the contrary, Congress's remedy, set forth in Section 304, lies strictly in the district courts. Moreover, the Clean Air Act's carefully crafted provisions for judicial oversight are themselves drawn from settled principles of administrative law. This Court has consistently recognized that once a reviewing court finds an agency's action invalid and sets it aside, the court's reviewing function is at an end and the matter returns to the agency for further appropriate agency action. The Court stated the "guiding principle" nearly 40 years ago: (T)he function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the (agency) for reconsideration. FPC v. Idaho Power Co., 344 U.S. 17, 20 (1952). /4/ The Clean Air Act's judicial review provisions employ this principle. Section 307 empowers the reviewing court -- in this case the court of appeals -- to review and, if necessary, reverse agency action, but it does not give the court power to direct the agency's subsequent activities on remand. As the Court has recognized, an agency's task on remand remains "infused with judgment and discretion, requiring the '"accommodation of conflicting policies that were committed to the agency's care."'" Department of the Treasury v. FLRA, 110 S. Ct. 1623, 1629 (1990). "It is not a task (courts) ought to undertake on the agency's behalf in reviewing its orders." Id. at 1630. See FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 144 (1940). The court of appeals' requirement that the Administrator develop a federal implementation plan within six months, like the enforcement bar in General Motors, was apparently intended to motivate prompt agency action. /5/ The Clean Air Act contains other provisions, however, to ensure that the Administrator acts with appropriate dispatch. As the Court noted in General Motors, Section 304 authorizes interested citizens to bring suit against the Administrator "where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." 42 U.S.C. 7604(a)(2). See 110 S. Ct. at 2534 & n.4. Significantly, however, such suits must be brought in a district court, which -- unlike a court of appeals -- has the factfinding capabilities necessary to investigate the reasons for the agency's inaction, to determine an appropriate remedy and its timing, and to modify the remedy to the extent that changed circumstances dictate. Congress was careful to give the courts of appeals power over those matters that require judicial review of completed agency action, while conferring authority on the district courts as to those matters requiring the exercise of factfinding and enforcement powers. The court of appeals' decision in this case, which would require that court to assume the factfinding role of a district judge, upsets Congress's carefully drawn distinction. /6/ 2. Although the legal objection that we present in this petition is narrow, it raises a matter of great practical importance. The court of appeals' requirement that the Administrator promulgate a FIP within a specified time period places severe limitations on the Administrator's ability to exercise "judgment and discretion" (FLRA, 110 S. Ct. at 1629) in formulating a legally adequate FIP. The court of appeals' six-month deadline is not required by statute and was formulated without regard to (or even significant inquiry into) what the development of a FIP entails. The Administrator is moving resolutely to meet the court of appeals' six-month deadline. That deadline, however, has required a redirection of EPA's limited resources during a period of serious budgetary constraints and has hampered the Administrator's ability to exercise considered judgment in a sensitive matter of joint federal-state concern. /7/ The court of appeals' order not only curtails the Administrator's exercise of discretion, it eliminates or hampers the ability of other interested parties to exercise their statutory rights. For example, Section 110(c)(1) of the Clean Air Act provides that a State may avoid the Administrator's imposition of a FIP if, prior to its promulgation, "such State has adopted and submitted a plan (or revision) which the Administrator determines to be in accordance with the requirements of his section." Section 110(c)(1), 42 U.S.C. 7410(c)(1). The court of appeals' order in this case, however, prevents Arizona from exercising that important right and limits the State to "submit(ting) proposals to the EPA for its consideration in developing the plans." App., infra, 16a n.1. In addition, EPA expects that Arizona citizens, who will be directly affected by the FIP's pollution control measures, will wish to participate through the public commenting process in the preparation of the FIP. The court of appeals' deadline, however, will impose serious time constraints on the Administrator's ability to analyze public comments in formulating the final rule. See note 6, supra. Indeed, it is not uncommon, and sometimes necessary, for an agency to issue a revised proposed rule in response to public comments. See, e.g., United States v. National Steel Corp., 767 F.2d 1176, 1181 (6th Cir. 1985). See also Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 546-547 (D.C. Cir. 1983). The court of appeals' timetable intrusively forecloses that option. As this Court observed, there is a special need to adhere to Congress's dictates where "important public rights are at stake." General Motors, 110 S. Ct. at 2534. In this case, the Clean Air Act specifies an important but limited role for the court of appeals, namely, to review agency action. The court of appeals ignored the Act's limitations and dictated the Administrator's actions on remand. This Court's recent decision in General Motors indicates that the court of appeals acted improperly. We submit, however, that the court of appeals should be given an opportunity to reconsider its decision before this Court conducts plenary review. The court of appeals' decision was issued prior to this Court's guidance in General Motors, and the court's opinion provided no reasoning or justification for its decision or for its departure from other established precedent. We suggest, accordingly, that this aspect of the court of appeals' judgment should be vacated and the case remanded to the court of appeals for reconsideration in light of General Motors. In the alternative, it would be appropriate for this Court to reverse summarily the court of appeals' judgment insofar as it dictates the Administrator's actions on remand. The court's presumption that the Administrator would not act properly and according to law, and the court's exercise of control over the Administrator's activities on remand (including their scheduling), are flatly inconsistent with well settled principles of administrative law. Moreover, the court of appeals' actions will seriously hamper the Administrator's ability to promulgate a FIP that satisfies the requirements of the Clean Air Act while providing the State of Arizona, its citizens, and other affected persons with an appropriate opportunity for public participation. CONCLUSION The petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated insofar as it orders the Administrator to promulgate a FIP within a specified time period, and the case remanded for further consideration in light of this Court's decision in General Motors Corp. v. United States, 110 S. Ct. 2528 (1990). In the alternative, the Court may wish to consider summary reversal of the court of appeals' judgment insofar as it orders inappropriate relief. Respectfully submitted. KENNETH W. STARR Solicitor General RICHARD B. STEWART Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General JEFFREY P. MINEAR Assistant to the Solicitor General MICHAEL A. McCORD DAVID W. ZUGSCHWERDT Attorneys E. DONALD ELLIOTT General Counsel ALAN ECKERT Associate General Counsel SARA SCHNEEBERG Attorney Environmental Protection Agency SEPTEMBER 1990 /1/ The court of appeals incorrectly suggested that respondents filed their district court action at a later date. See App., infra, 3a. /2/ See Arizona v. Thomas, 829 F.2d 834 (9th Cir. 1987); see also Arizona v. Thomas, 824 F.2d 745 (9th Cir. 1987). /3/ Similarly, in this Court, we do not seek review of the court of appeals' determinations as to the adequacy of Arizona's SIP revisions. /4/ See FTC v. Morton Salt Co., 334 U.S. 37, 55 (1948); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 140-146 (1940). This Court has repeatedly followed that principle. For example, the Court concluded in FPC v. Transcontinental Gas Pipe Line Co., 423 U.S. 326 (1976), that a lower court, by ordering an agency to complete an investigation within 30 days, had "overstepped the bounds of its reviewing authority." Id. at 329-330, 331. The Court explained that a reviewing court may not, after determining that additional evidence is requisite for adequate review, proceed by dictating to the agency the methods, procedures, and time dimension of the needed inquiry and ordering the results to be reported to the court without opportunity for further consideration on the basis of the new evidence by the agency. Id. at 333. See also, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524-525 (1978). Similarly, when this Court recently held that the Federal Labor Relations Authority erred in its application of certain provisions of the Civil Service Reform Act, the Court refused to adopt a "permissible" alternative interpretation because the agency had not considered the interpretation "in the first instance." Department of the Treasury v. FLRA, 110 S. Ct. 1623, 1629 (1990). /5/ The court's concern is understandable. Arizona repeatedly has failed to meet the Clean Air Act's deadlines for attainment of the NAAQS. But Arizona is not alone. Indeed, the problem of continuing nonattainment, now as in 1977, is an important legislative topic. Congress is presently considering revisions to the Clean Air Act that will address that matter. See S. 1630, 101st Cong., 2d Sess. (1990) (The Clean Air Act Amendments of 1990). /6/ The courts of appeals have repeatedly recognized the Clean Air Act's bifurcated system for judicial oversight of the agency's implementation of the Act. See Maine v. Thomas, 874 F.2d 883, 884 (1st Cir. 1989); Environmental Defense Fund v. Thomas, 870 F.2d 892, 896 (2d Cir. 1989); Sierra Club v. Thomas, 828 F.2d 783, 787 (D.C. Cir. 1987); Indiana & Michigan Elec. Co. v. EPA, 733 F.2d 489, 490-491 (7th Cir. 1984). The Ninth Circuit has itself noted that the Act assigns separate roles to the courts of appeals and the district courts. See Farmers Union Central Exchange, Inc. v. Thomas, 881 F.2d 757, 760 (1989); Abramowitz v. EPA, 832 F.2d 1071, 1075 (1987). See also Kamp v. Hernandez, 752 F.2d 1444, 1454 (1985); Kennecott Copper Corp. v. Costle, 572 F.2d 1349, 1353 (1978). /7/ The court of appeals' mandate issued on May 25, 1990, and the Administrator accordingly is under an obligation to complete the promulgation of the FIP by November 26, 1990. The agency has conducted new air quality modeling for the affected regions, which entails the use of data on emissions and pollutant concentrations to predict mathematically the effects of future pollution controls. The Administrator intends to analyze the modeling results, determine appropriate control measures and publish a notice of proposed rulemaking on September 20, 1990. A public hearing will be held in October, and the public comment period will close in early November. If the government fails to secure relief from the court of appeals' order, the Administrator will have a mere three weeks to analyze the public comments, make appropriate revisions, and sign a final rule. See Rodway v. Department of Agriculture, 514 F.2d 809, 817 (D.C. Cir. 1975) (noting an agency's obligations to "respond in a reasoned manner to the comments received, to explain how the agency resolved any significant problems raised by the comments, and to show how that resolution led the agency to the ultimate rule"). APPENDIX