Cases by Issue - Pollution

Alaska Dept. of Environmental Conserv. v. EPA - Oral Argument

Fri, 09 Jan 2009 14:49:07 +0000

Case:

Alaska Dept. of Environmental Conserv. v. EPA

Media File:

02-658_20031008-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Jonathan S. Franklin

Chief Justice Rehnquist: We'll hear argument now in No. 02-658, Alaska Department of Environmental Conservation v. the Environmental Protection Agency.

Mr. Franklin.

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

The question in this case is whether the Federal Environmental Protection Agency has the legal authority to override by fiat a discretionary determination that Congress expressly directed be made instead by the State of Alaska, which Congress trusted to exercise its own independent judgment according to local priorities and local conditions.

We submit that the answer to that question is no.

When Congress wanted to give EPA the authority to... under the Clean Air Act to review and approve the substance of individual State determinations of the best available control technology, or BACT, Congress said so expressly.

It gave EPA no such role in the circumstances of this case.

Justice O'Connor: Well, do you think that the statute allows EPA to at least say, Alaska, you didn't go through the proper analysis here, you didn't consider, as contemplated by the statute, some of the costs and concerns that would enable a State to say, fine, you go ahead with less than the ultimate equipment?

Now, can EPA, under the statute, say, Alaska, you just didn't follow the required procedures?

Mr. Franklin: EPA can say, yes, Alaska, you did not consider the statutory factors, but that is not the contention that's being made in this case, Your Honor.

Justice O'Connor: Well, isn't that an element here in fact?

Wasn't that part of EPA's concern?

Is it true that the owner of the mine wouldn't even furnish certain financial information to enable the State to make that analysis?

Mr. Franklin: Two points, Your Honor.

The contention that's being made here is not that Alaska failed to consider the factors that Congress set forth.

The contention is that they didn't do it in the way that... that EPA might have done it if EPA were the permitting authority with regard...

Justice Souter: Well, that's a... that's a pretty fine line.

Justice Scalia: I mean, I'm... I'm really surprised by... by your concession.

I... I would have thought a much more rational interpretation of the statute is that, yes, the State has certain obligations under the statute to consider the factors, but if they were not considered, the person who would bring them to account for not considering them is initially the State courts and then, on certiorari, to this Court.

I thought your position was that this is none of EPA's business...

Mr. Franklin: It is our...

Justice Scalia: that this... that this discretionary determination is given to the States, and when the States are reviewed, they should be reviewed in court.

Mr. Franklin: That is our... our position, Your Honor.

Justice Scalia: Well, why isn't it for... for the... for the hypothetical that Justice O'Connor gives as well as for everything else?

Mr. Franklin: I think that the... the line is whether the requirements of the statute were followed or not.

In this case, Alaska has done precisely that which it...

Justice Scalia: Well, assuming they weren't followed, is your position that when they are not followed, EPA can call them to account?

Mr. Franklin: EPA has the authority to enforce the requirements and prohibitions of the act, but we believe that authority should be narrowly circumscribed to the bounds that Congress set for the EPA.

Justice Kennedy: Well, let... let me intervene and... and suggest this.

Could you have answered Justice O'Connor's question this way?

Oh, yes, the EPA can... can complain and make its case that the State did not exercise its discretion the right way, but it can't do so by just issuing an order.

It has to go through the judicial review process.

Would... would that... would that answer your case or...

Mr. Franklin: Yes.

Justice Kennedy: or am I misstating the theory here?

Mr. Franklin: No, you're not, Your Honor.

The... the question in this case is not whether the claims that EPA raises here will be subject to review.

The question is how, when, and in what manner, and...

Justice O'Connor: Okay.

Justice Kennedy: Now, could... could the EPA have gone to Federal court and say, oh, well, this discretion was exercised in good faith and so forth, but it was... it was wrong?

It didn't comply with the statute.

Could it go to Federal court?

Mr. Franklin: if it's contention is it didn't comply with the express terms of the statute...

Justice Kennedy: In... in this case... in this case...

Mr. Franklin: In this case, no.

Justice Kennedy: as Justice O'Connor said, it didn't give... oh, it cannot go to Federal court?

Mr. Franklin: Not in this case, Your Honor.

It could under the State review procedure, and I think there's an open question as to whether...

Justice Breyer: Well, why couldn't it?

Why couldn't it?

They simply proceed under 28 U.S.C. 1345.

Mr. Franklin: Exactly.

Justice Breyer: Now, what they do is they say, we're now in Federal court.

There's a State law here.

The State law happens to say that you cannot be arbitrary.

Mr. Franklin: Correct.

Justice Breyer: And so now they say, we're making the same claim identically.

They were arbitrary, capricious, abuse of discretion.

But it's under State law.

And now, my goodness, what is this case about?

Mr. Franklin: Exactly.

Justice Breyer: You say that they should have gone into the Ninth Circuit under 1345 arguing it was arbitrary, capricious under State law, and they say that they should be in the Ninth Circuit arguing that it's arbitrary and capricious under Federal law, where I've never heard that there's any difference between arbitrary and capricious under State law or under Federal law.

It's just whether it's arbitrary and capricious.

Mr. Franklin: There are two important differences, Your Honor, and... and I think they would have... 1345 is the statute I was just about to cite, and I think they would have the authority to go into Federal court under State law.

Two important distinctions.

First, Your Honor, the... the... going through the State process would require that they go through, in addition to the State judicial review process, the State administrative review process.

In Alaska, that would have allowed Alaska's Department of Environmental Conservation a de novo administrative hearing at which they could have presented a full administrative record, additional witnesses, and they would have had the opportunity to further clarify and defend their decision.

The second point, Your Honor, is that under the fiat that they have exercised here by order, it does not accord Alaska's determination the kind of deference that it would have received under the State process.

The point that we're making, Your Honor, is that the State review process is adequate to address all the concerns...

Justice Breyer: They do go into Federal court, and I do see your point.

What I am curious about is I think there are like maybe a handful of administrative law experts who might have thought there was really some kind of difference between whether you're in Federal court under the State words or in Federal court under the Federal words when the words are identical.

And there may be somebody who thinks there's a difference between what you told Justice O'Connor and what you've told Justice Scalia, but I'm not one of them.

I don't understand how you reconcile those things.

So if we assume Congress is not an expert, why wouldn't they have just meant by this, well, EPA, you stay out of it unless you think what they're doing is unreasonable?

If what you think they're doing is unreasonable, you have the authority to come in and go to Federal court if you want.

That would be simple.

Everybody would understand it.

Mr. Franklin: If Congress had made that clear in the statute, Your Honor, we would not be here.

The reason that Congress did not is that when Congress wanted to give EPA the authority to review and approve the substance of individual State BACT determinations, it said so expressly in section 7475...

Justice Ginsburg: Mr. Franklin...

Mr. Franklin: Yes.

Justice Ginsburg: perhaps I misunderstood your brief, but I thought that you were making the distinction in your brief between the substance of a decision and the procedural motions.

I thought you conceded that if the Alaska agency simply said, well, the company wants Low NOx, so they're going to get it, and we're not going to go through any feasibility analysis.

I thought your brief conceded that if that were the case, there would be access to the Federal court on the part of EPA.

Mr. Franklin: Yes, Your Honor, but that is not what we are here about today.

What we are here about today is EPA...

Justice Ginsburg: Well, why isn't it, going back to Justice O'Connor's question, when the EPA is saying, in essence, you didn't really go through the feasibility analysis because you didn't even ask for the relevant information?

Mr. Franklin: To get back to that, Your Honor, the... what EPA is saying is that we did go through the factors, but we didn't weigh them the way EPA would.

And with respect to the economic considerations, Your Honor, Alaska has followed EPA's own guidance on this which says quite clearly that the individual circumstances and finances of a permit... an applicant are not to be considered in the analysis.

So it was not relevant whether the technology would have bankrupted this company or not.

What Alaska found to be relevant and what it was its statutory prerogative to find relevant and as a matter of its own local priorities was a comparison of the costs between this applicant and other similarly situated applicants in recent decisions.

Justice Scalia: So you want...

Mr. Franklin, it's not just a question of coming into Federal court.

Mr. Franklin: No.

Justice Scalia: It's not just a question of the agency coming into Federal court the way a private citizen would and challenging the State action.

It's a matter of the agency issuing an order...

Mr. Franklin: Exactly.

Justice Scalia: which order is presumptively valid and which would have to be deferred to by the Federal court presumably unless the order was arbitrary or capricious.

Mr. Franklin: And that is what I was...

Justice Scalia: So you'd be deciding in Federal court whether it was arbitrary or capricious for EPA to find the State to have been arbitrary or capricious, a very... a very refined determination, to put it mildly.

Mr. Franklin: Yes, Your Honor, and that is...

Justice Scalia: But isn't that the problem?

It isn't just a matter of getting into Federal court.

It's a matter of how you get into Federal court.

Mr. Franklin: Exactly.

As I was saying before, it's not a question of... of whether these things will be reviewed but how, and more specifically, whether these issues which are...

Justice Ginsburg: But it is.

There's a difference because you're... you said that the review... the reviewing authority would be the State court.

So you aren't talking about whether there would be Federal court review, and I think in response to Justice Scalia, now you are saying that the route is the State court.

You're agreeing with him when he said the route is the State court and this Court on cert.

Do you see any role for the Federal courts?

Mr. Franklin: Well, as Justice Breyer pointed out, it's an open question.

We believe that the Federal courts... if EPA were instituting this, the State review procedure, under section... 28 U.S.C., section 1345, there may be Federal jurisdiction because that confers original Federal jurisdiction on any action brought by a Federal agency.

But that's a narrow, limited scope.

Justice Scalia: Well, but the action has to properly lie in order for it to be successful, and when you have... on what basis would the agency be suing?

Mr. Franklin: They would be suing under the State review procedure, Your Honor.

It would be their option we think, and it's an open question.

It's not one that I think this Court...

Justice Souter: I don't think they could do it.

Justice Breyer: Suppose that the... a State agency decides the best available control technology is a ceiling fan that they brought up to New Orleans... from New Orleans.

They bought it and brought it up to Alaska.

Now, EPA looks at that and says, no, no, this is going too far.

Now, what in your opinion is supposed to happen?

Mr. Franklin: Well, in... in our opinion in that situation, Your Honor, it would be subject to the APA-type review and it would be struck down.

Again, the question is not whether that kind of review of...

Justice Breyer: What's the role of the Federal court?

Mr. Franklin: Well, if EPA is the one bringing the action, I... I would accept Your Honor's premise that once it has proceeded through the comment process, once it has proceeded through the administrative review process... and frankly, we think that that particular matter would end there.

No State would do that because the States take their responsibilities seriously to implement these statutes.

If, however, there were any question that remained at the end of that process, which EPA circumvented in this case by fiat, then and only in that event would EPA be able to seek judicial review, but it would be an APA case.

It would not be...

Justice O'Connor: Well, I don't... I don't understand anyway because the statute that we're looking at, section 113(a)(5) says that if EPA finds a State is not acting in compliance with any requirement or prohibition of the PSD program...

Mr. Franklin: Yes.

Justice O'Connor: EPA can stop construction and issue orders.

It can also bring a civil suit for injunctive or monetary relief.

Suppose it just puts out an order and says, look, Alaska, you did not determine what costs would mean to the mine in terms of profitability, employment, or global competitiveness, and therefore you didn't meet the requirements of the PSD statute, and you stop any construction now on the mine expansion.

That would put the onus on the mine owner or the State to go to court somewhere, wouldn't it?

Mr. Franklin: It would and... and that's precisely the reversal of the kind of presumption of regularity that the States are entitled to in these kinds of cases.

Justice Scalia: Mr. Franklin...

Justice Kennedy: So under 17... or what is it... 7413(a)(5)(C), which is 14a of your brief toward the bottom, you say that in this case the agency cannot invoke that section to issue an order or to go to court.

Mr. Franklin: That is correct, Your Honor.

Justice O'Connor: All right.

Justice Kennedy: You have to say that to be consistent.

Mr. Franklin: Yes.

Justice Kennedy: Now, if you want us to write the opinion your way, you would say under 17... 7413(a)(5), the State... the EPA cannot issue an order barring construction unless.

Now you fill in the blank.

Mr. Franklin: Unless a State has... if there was a demonstrated violation of an express statutory requirement.

For example, a State has not...

Justice Scalia: Well...

Mr. Franklin: issued a permit to begin with or a State has not put a BACT limitation into a permit.

Those are the kind...

Justice Kennedy: Unless there's a violation of an express statutory requirement, but the Government is going to come up and say, there was a... there was a violation of the statute defining BACT.

Mr. Franklin: But in this case, Your Honor, that is not with respect to... to the EPA, that's not what they're saying.

They're saying that we did go through the various factors that the BACT statute requires us to go through.

In their opinion we didn't weigh them the proper way and under the proper policies.

We, in fact, disagree strongly with that, but that is a contention that is raised every day of the week under administrative procedure law.

It's not a contention that the express requirements of the statute...

Justice Kennedy: What your formulation is, is that they did not follow a requirement of the statute.

And I just don't see how that gets you there.

Justice Scalia: You're making a distinction between the express requirements of the statute and the obviously implicit requirements of the statute?

Certainly it... it is implicit in the statute that the State's decision must be made rationally and not arbitrarily.

Don't you think that that's a requirement of law?

Mr. Franklin: It is certainly a requirement of law, Your Honor, but it is a background principle that derives ultimately, we think, from the Due Process Clause not a unstated requirement of the Clean Air Act.

And the important thing is what did Congress intend for EPA to be able to...

Justice Breyer: I mean, that isn't going to get... the reason I think we're... I'm having the same trouble Justice Scalia is because the kind of... in my mind anyway, I tend to think of a classical definition of arbitrary and capricious as sometimes involving they didn't follow what the statute told them to do.

Sometimes they did what the statute told them not to do.

Sometimes they didn't get the weight right.

And I put all those things... and I think a lot of people do... in the same box called arbitrary and unreasonable, capricious, and you try to draw some kind of line between those things.

I don't know how to do it, and I don't think many judges would.

Mr. Franklin: Well, I think that judges would, Your Honor.

It doesn't usually come up because a court, reviewing such a procedure, could... could find the... the order invalid under either basis, either it didn't comply with the statute or it didn't comply with the APA.

Here, though, Congress specifically circumscribed the EPA's authority and it did so for a good reason.

Justice Breyer: Where is...

Justice Stevens: But the language of 113(a)(5) doesn't really seem to be limiting... I'm over here.

Unidentified Justice: [Laughter]

Mr. Franklin: Yes, Your Honor.

Justice Stevens: It doesn't seem to be limiting the authority of EPA.

And I'm just wondering just... I'm not sure I totally follow the argument, but I'm just looking at the... that statutory provision.

And are you saying that statutory provision does not apply even if the State acted arbitrarily and capriciously?

Mr. Franklin: The statute governs how the agency's... gives the agency the discretion.

How the... the agency exercises that discretion is a separate question and one that is traditionally reviewed on a full administrative record by a court, not by EPA acting on its own fiat.

Justice Stevens: Well, but this... that provision gives the... the EPA the authority to issue certain orders.

Mr. Franklin: Yes.

Justice Stevens: And is it your position that they did not have the authority to issue the order here or that the order was wrong?

Mr. Franklin: Our... that they did not have the authority because there was not a... a violation of the requirements of the act, which is the only basis...

Justice Stevens: Even if there were a violation of the requirements of the act, would you say they... if... if there were a violation of the act, would they have the authority to issue it... issue that order?

Mr. Franklin: If there... if there were a violation of the express requirements of the act, then... then that's what the statute says.

But it has to be read in context.

It has to be read in context.

Particularly when Congress wanted to give EPA the authority to review and approve the substance of these determinations, it said so expressly in one narrow instance that is not applicable here.

When a State has...

Justice Ginsburg: That's in advance of the permit.

The fact that... that Congress specified that for certain pollutions, you must, before you give any permit, go to the EPA doesn't exclude that you could have the review after.

But I would... after the permit issues.

But I would like to ask you.

You seem to be saying, well, this is just a determination.

They applied the statutory factors.

EPA didn't like the way they did it.

There seems to be lurking in this a... a difference on what the statute means to this extent.

EPA seems to be taking a single source approach.

That is, you want a new generator?

That generator has to have BACT for that generator.

Never mind if you tell us voluntarily you're going to put Low NOx on all of them and the result would be lowering the emissions.

In other words, EPA seems to be taking a no-bubble approach to this.

You go at it machine by machine...

Mr. Franklin: Right.

Justice Ginsburg: generator by generator, where you're taking the position or Alaska is taking the position that if you can reduce overall emissions by putting the Low NOx on all six generators and in the end have cleaner air, well, then do that and forget about the SCR on one machine.

That seems to be a substantive difference about whether BACT applies to the whole setup or machine... generator by generator.

Mr. Franklin: Yes, it is, and we believe that EPA is... is wrong on that.

But they're wrong as a matter of policy, Your Honor.

The BACT statute gives the States the discretion to weigh, among other factors, environmental factors.

We think that is clearly broad enough for the State to take into consideration the overall environmental effect that this...

Justice Ginsburg: But that's... it's either that you go at it machine... source by source, new source by new source, modification by modification, or you can have the bubble concept.

In Chevron, EPA was... was espousing the bubble concept and the Court... this Court said, EPA, that's a reasonable construction of the statute.

Now EPA seems to be saying as to this program there is no bubble.

You have to look at that machine, that generator in isolation.

Mr. Franklin: Right.

Justice Ginsburg: And that seems to be a basic difference on what the statute means, not on... mix it all up and is it arbitrary and capricious.

Mr. Franklin: We think that it's... in fact, there is a difference on... on how it's to be implemented.

Congress was very clear here.

They understood that States would have different policies, that one State could choose the approach that EPA might choose, which says we are not going to consider the environmental... overall environmental impact here.

Another State might view it differently, but that's what Congress wanted to have happen.

When EPA issued its orders in this case...

Justice Breyer: But on the facts here I thought... now, tell me if I'm right about this.

When I started reading it, I was quite sympathetic to your view that it makes no sense to have more emissions coming out as a result of trying to control this one generator.

Their job is to get fewer emissions not more.

But then when I read into the record a little bit, it seemed to me that the facts are that by the time this generator 17 came up, it was perfectly apparent that the company had to put the... whatever, some low technology, NOx technology or something on four of the other generators anyway.

So that the bottom line is that this bubble has nothing to do with this case because we're talking about one generator coming in in circumstances where the other generators have to be controlled regardless.

Am I right?

Mr. Franklin: You're almost right, Your Honor, but the... the difference is that there... there were four other generators that were subject to the cap, but there were six other generators total.

Justice Breyer: I know, but then we... I had my law clerk go through and do the extra emissions from those other two, and it didn't really make any difference.

Mr. Franklin: It did... it does make a difference, Your Honor.

Justice Scalia: It does?

Mr. Franklin: Because of the assumption that Alaska made, and that is that if you used SCR on MG-17... and this has never been challenged... that... that MG-17 would be the backup generator.

It would not be used.

Therefore, any emissions savings that you can get off those other two engines, 2 and 6, no matter how small they might be... and I think that they probably come in the neighborhood of 100 tons or so.

Any emissions savings that you can get off 2 and 6 add to the bottom line because the assumption that the State has made, which is a... a reasonable and in my view correct assumption, is that MG-17 is not going to be used if it's SCR because SCR has enormous operating costs associated with it.

Again, these were the... the policy determinations...

Justice Scalia: If I go...

Justice Ginsburg: I still don't... I don't... I don't see where Justice Breyer's question fits with... with the issue, does the statute dictate BACT on an individual generator?

Never mind the rest.

In other words, does the act say, no bubble, and that's how EPA seems to be reading the act, that it's not a matter of discretion, that this calls for a new source, modified source, and you just look at that new source and you don't look at the old generators at all.

Mr. Franklin: You look at the new source, Your Honor, but you're allowed to consider environmental impact in looking at it.

And there EPA is wrong, if that's their contention.

Their... for example, they... they do not require States, nor could they, to use their top-down methodology.

EPA understands... and that is the nub of this case... that the BACT determination is not supposed to be a uniform Federal standard.

Justice Ginsburg: What... what other method is there besides the top-down?

I know both briefs have said it's... it's the way it was done here.

That's what EPA recommends, but it isn't inevitable.

What else would they use other than top-down?

Mr. Franklin: It could... it could be bottom-up, Your Honor.

They could look at each technology and eliminate the ones going up.

There's a number of different ways that a State could do it.

The point that's being made here, when EPA issued...

Justice Ginsburg: Is that in fact the situation, that there are other ways, or is it just in theory, but they all use top-down?

Mr. Franklin: Your Honor, I don't know what every State uses, but I do know that Congress made clear... and the legislative history at page 31 of the Senate report is crystal clear on this point... that each State was to have the discretion to weigh the factors in its own judgment.

And... and Congress made clear that a State... it would be permissible for a State to consider such things as anticipated and desired economic development, as well as the amount of the available increment that the State wished a particular source to consume.

When...

Justice Souter: Mr.... Mr. Franklin, the... the difficulty that I'm having with... with your argument about the meaning of the statute goes back to your answer I think to Justice Kennedy's question awhile ago.

He asked you, in effect, what's the role of the statute on your theory, and... and you said, well, if they... if they simply ignore one of the stated statutory factors, they say we're not going to consider this, or if there's a technical defect in the order, if the order is incomplete, that would be a... a circumstance in which EPA could exercise this authority.

But you also said... and I... I assume you said correctly... that later on that these kinds of obvious violations are going to be rare.

Mr. Franklin: Yes.

Justice Souter: And that leads me back to... as I said, I guess, to Justice Kennedy's question, and that is this.

It seems to me that on your view of the... the two statutory sections, there really isn't very much role for them to play, and I can't imagine why Congress would have enacted separate order sections if all they were meant to do is what you say.

So my question is, why... why doesn't your explanation trivialize these two statutes to a point that is implausible?

Mr. Franklin: They don't trivialize it, Your Honor.

There are numerous Federal requirements that if a State does not meet those express statutory requirements, then EPA can step in.

There are ambient air quality standards...

Justice Souter: And... and EPA could do the same thing by following the State review process, couldn't it?

Mr. Franklin: It...

Justice Souter: It could go in and say, look, they forgot X.

Unidentified Justice: They refused to apply Y.

Mr. Franklin: But if its contention is one that the statute gives the discretion but it was simply not exercised in the proper way that we would have exercised it, that is not a contention that Congress wanted EPA to be able to resolve by fiat.

Justice Souter: Well, but I mean, that's... that's the question.

I mean, the... the difficulty I'm having is that if... if it is unlikely that Congress would have provided this entire separate track simply to deal with the problems that you say the track is meant to deal with, then it is not so implausible at all that Congress would have intended the statute to be applied as it has been applied here.

Mr. Franklin: I think it is implausible because Congress made clear that EPA's authority was circumscribed to enforcing the... the statutory requirements, and those requirements were met in this case.

If I might reserve the balance of my time.

Argument of Thomas G. Hungar

Chief Justice Rehnquist: Very well, Mr. Franklin.

Mr. Hungar, we'll hear from you.

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

Petitioner's fundamental contention is that once a State issues a determination of best available control technology so labeled, no matter how arbitrary, factually unsupported, or unreasoned it may be, the Federal Government has no enforcement authority under the act to take actions to stop the invalid permit from taking effect.

Nothing in the text, structure, or history of the act supports the implausible contention that Congress intended to immunize arbitrary, unreasoned State decision making from Federal enforcement review.

Justice Breyer: Well, I don't think he is... I mean, my impression of their argument was, yes, you can review that.

What you have go is through the State procedure and then after you go through the State procedures, in fact, you can go into a Federal court and have them apply the State review procedure if you want.

Mr. Hungar: Yes, but...

Justice Breyer: I think that's what their argument was, or at least one of their arguments.

Mr. Hungar: But, Your Honor, Congress enacted a Federal regulatory scheme and a Federal enforcement scheme.

Justice Breyer: That's a different thing.

Maybe yours is better, but you can't say they're leaving it without review.

So I just wanted to...

Mr. Hungar: Review only under State law, Your Honor, and... and our point is that Congress has enacted a comprehensive Federal regulatory scheme and authorized EPA to serve as a backstop to ensure compliance with all of the requirements of the act, or this... this portion of the act.

Justice Scalia: That's begging... I mean, that... that is exactly the point at issue, it seems to me.

Why is... why is it irrational to envision a scheme such as... such as the petitioners here propose, which is, look it, Congress set certain, absolute requirements?

Ambient air quality, you know, shall be this.

But as long as those requirements are met, below that we also want each State... each emission source in a State to be examined to see whether it is using the best available technology.

But what constitutes the best available technology under the circumstances is a very difficult question.

It involves issues of... of the State economy, as well as scientific issues.

We are content so long as each State meets the absolute standards that the statute sets forth.

Below that standard, we're going to let each State decide whether the best available technology under all the circumstances is being used.

That seems to me a perfectly sensible and rational system.

Mr. Hungar: Your Honor, the definition of best available control technology does not simply leave it to the discretion of the decision maker, the unbridled discretion, to... to select whatever it wants...

Justice Breyer: Well, let's see what it says.

Mr. Hungar: It imposes meaningful constraints, Your Honor.

Maximum emissions reduction that is achievable taking into account specified factors.

A failure, for example...

Justice Scalia: But you're... you're missing the... the first part of it.

It doesn't say which is the best available.

It says the best of means and emission limitation, best on the maximum degree of production of each pollutant subject to regulation under this chapter, blah, blah, blah, blah, which the permitting authority on a case-by-case basis, taking into account these various methods, determines to be the BACT.

I mean, there it is.

Which the permitting authority determines.

Mr. Hungar: Yes, Your Honor.

Two responses.

Number one, the... the United States Code is filled with examples of instances in which Congress defines that it's the initial decision maker for a particular question, but that is not generally taken to mean that delegation of absolute, unreviewable discretion.

Number... particularly when, as here, the statute imposes...

Chief Justice Rehnquist: But they're... they're not saying...

Mr. Hungar: these constraints on the decision maker.

Chief Justice Rehnquist: They're not saying that the discretion is unreviewable.

They're just saying it's reviewable in a different manner than you think it is.

Mr. Hungar: They're saying that it's not reviewable as a matter of Federal law, Your Honor, and that is what we're talking about here.

Justice Breyer: Well, Federal... are you aware of any State in the United States that does not have in its law the requirement that its own agencies have to act rationally, that they can't arbitrarily, abuse of discretion?

Mr. Hungar: I don't know, Your Honor, but...

Justice Breyer: Well, I don't know of any either.

Mr. Hungar: But I know there...

Justice Breyer: And so that seems to be the same standard that you argue that applies, and since there is no State that doesn't have that standard and no Federal Government that doesn't have it, we all have the same standard.

And that's why I think the argument does boil down to which courts will apply it: the Federal court as a matter of Federal law, or the Federal court as a matter of State law

Mr. Hungar: Well, number one, I believe various States have standing requirements that may be more restrictive than those applicable under... under Federal law.

Number two, the question is not merely which court will apply it but whether the... the comprehensive administrative authority confirmed on EPA to issue orders and not just the administrative orders at issue here, but also the possibility of the... of the administrative sanctions proceeding, which is separately provided by Congress in subsection (d) of 7413.

Under petitioner's interpretation, none of that would apply as long as there's some element of discretion in the State's decision.

And it's simply not correct to say that BACT is the only area in which the States enjoy some range of judgment or... or in which there may be factual disputes...

Justice Souter: It's a range of judgment.

Justice Scalia: This is the only provision that reads this categorically.

I... I... which the permitting authority on a case-by-case basis determines.

Mr. Hungar: With respect, Your Honor, that's not correct.

Under... under 7475(a)(3), which is the... the subparagraph prior to (a)(4) which imposes the BACT requirement... 7475(a)(3) is on... I believe it's on 13a of the appendix to the gray brief.

(a)(3) is... is where the... is where the requirement that permittees meet other provisions of the act such as the national ambient air quality standards and the increments.

Justice Scalia: Tell me again where... where...

Mr. Hungar: 7475(a)(3) on... on 13a of the gray brief appendix.

Justice Scalia: On 13a.

Mr. Hungar: Yes.

Justice Scalia: (4).

Right?

Mr. Hungar: (4) is the BACT requirement.

(3) is the national ambient air quality standards, other standards of performance, the increments, and so forth.

All of the other requirements that... that petitioner concedes EPA should be able to enforce.

But if you turn... and that (a)(3), in turn, references 7410...

Justice Scalia: (j).

Mr. Hungar: (j).

7410(j), which is on page 5a of the appendix, says that the permittee must... the permit applicant must demonstrate to the satisfaction of the permitting agency that all of these requirements have been met.

So under petitioner's interpretation, EPA's authority to enforce all of... all of the requirements of the prevention of significant deterioration program would be eviscerated to the extent there is discretion in those determinations and there is necessarily discretion.

All of those other determinations require modeling, and to do modeling, you have to determine what the inputs to the model are and you have to determine what the boundaries of the ambient air area are, and if EPA cannot review any of those discretionary decisions, it has essentially no authority to do anything under this act except to require that permitting authorities mouth the words of the statutory definition.

And that's it.

And if that's all...

Justice O'Connor: Well, could... could we get specific in this case?

Looking at the Clean Air Act provision, 169(3), which the permitting authority on a case-by-case basis determines is achievable, after considering economic impacts and other costs.

Now, EPA says what's wrong.

Alaska did make a determination, did it not?

Mr. Hungar: Alaska made a determination, but it did not determine best available control technology within the constraints of the statute, and the... and the easiest...

Justice O'Connor: Well, how so?

Let... looking at the statute, what provision did they fail to comply with?

Mr. Hungar: Well, they... they didn't determine the maximum degree that is achievable, taking into account these factors, because the only basis for their rejection of the best technology selective control... I mean, selective catalytic reduction was their reliance on economic impacts, and specifically what they said was the foremost consideration... the foremost consideration... for their rejection of SCR, according to the State... this is at page 208 of the joint appendix... was impact of the cost of SCR on the competitiveness of the mine.

And yet...

Chief Justice Rehnquist: What's wrong... what's wrong with that?

Justice O'Connor: And...

Mr. Hungar: What's wrong with that, Your Honor, is that on the previous page, on page 207 of the joint appendix, the State admits that because Cominco refused to provide the financial information, they had no basis for making a judgment.

That's a... they quote judgment.

Justice O'Connor: Well, let me just ask you...

Mr. Hungar: They couldn't make a judgment about that very issue.

Justice O'Connor: a technical point.

Suppose at the end of the day... and I'm not sure if this is what we would do or that I would favor, but suppose at the end of the day we agree EPA had authority to issue a stop order and that it was proper.

Could Alaska then go back and say, well, okay, we're going to run through this drill once more and do consideration of costs, and they're now going to allow Low NOx's instead based on that?

Now, can they do that?

Is that all right?

Mr. Hungar: On... on an appropriate record, absolutely they could do that.

And... and EPA made it clear...

Justice O'Connor: So this wouldn't be the end of the day.

Mr. Hungar: That's correct.

The State has the... has discretion, but that discretion is not unlimited, and that is the point that...

Justice Scalia: Can you tell me, Mr. Hungar...

Justice Kennedy: Speaking of it's appropriate...

Can you tell me, Mr. Hungar, whether or not as... as a matter of past practice, the EPA has intervened in any State administrative review proceedings in State courts?

Mr. Hungar: In State court, no, I don't believe so, Your Honor.

Justice Kennedy: All right.

Has... has it gone to Federal court under... was it... 1345, the United States District?

Mr. Hungar: I don't believe so.

It's an unsettled question I think whether 1345 would authorize EPA to...

Justice Kennedy: So the EPA has been consistent in saying that it... it is not in any case like this or with parallels to this gone through an administrative process.

It's simply issued a stop order?

Mr. Hungar: That's correct.

The EPA has consistently maintained and... and has... has announced this interpretation in a variety of administrative documents, including through notice... in the course of notice and comment rulemakings and in the very orders in this case.

EPA has consistently taken the position for 20 years, at least, that it has authority under these statutes, 7477 and 7413(a)(5) to do exactly what it did in this case...

Justice Scalia: That doesn't surprise me.

You... you mention on an appropriate record.

That is one of the things that makes me uneasy about the... the resolution that you propose.

When this thing comes to a Federal court of appeals, which is not a fact-finding court, it comes on the basis of nothing except EPA's order.

We... we do not know the record before the administrative agency on the basis of which the EPA acted.

Now, if you had gone through the State administrative procedure, that record would have been examined.

That would... the action in question would have been the action of the State agency and... and you would examine the record before the State agency.

But... but the administrative action we're reviewing here is not the State administrative action.

It's your administrative action, and the only relevant record is the record before the EPA.

And... and as I said before, the court of appeals ends up determining whether it was arbitrary and capricious for the EPA to determine that the State agency was arbitrary or capricious.

You combine those two weird factors and... and I'm just dubious that this is the kind of review that Congress intended.

Mr. Hungar: Taking the last part of your question first, Your Honor, there's nothing particularly strange about an appellate court reviewing a prior determination of whether an agency decision was arbitrary and capricious.

Courts do that all the time...

Justice Breyer: Square.

Mr. Hungar: under the APA when a district court... no.

If a... a district court determines whether a... whether the... an agency decision was arbitrary and capricious, the court of appeals, to the extent there are discretionary issues, they would review deferentially, but really as a general matter, it's going to boil down to a question of law, which is I think the case here, which is was it... was it or was it not arbitrary and capricious for the State of Alaska to do what it did here.

Fundamentally that is a question of law upon review of the EPA's determination.

Justice Breyer: All right.

It's a question of judgment and whose judgment gets some weight.

In respect to that, what I'd really suddenly stirred up again here... suppose we reach the second question.

Suppose we reach the question of whether Alaska did, in fact, do something that was pretty unreasonable, and suppose I accept your argument that this was totally unreasonable to say that they didn't have to put in this special technology because of cost when Alaska didn't even know what the cost was.

That's about like the fan.

That's close to the ceiling fan.

That's what you're arguing.

But then they've made another argument, and the other argument is bothering me a lot more.

And that is that the EPA has taken the position that you have to put this extra special converter or whatever on number 17, even if the consequence of that, because of the interaction of the regs and their desires with number 2 and number 6, is more pollution.

Now, that does bother me because it seems to me a State agency that's trying to get a result that is less polluting is not acting arbitrarily and capriciously except in rather unusual circumstances.

Now, what do I do with that argument?

Does that mean if I accept everything you say... but that worries me... I should send it back for another determination of whether this really is arbitrary and capricious?

What should I do with that argument?

Mr. Hungar: Your Honor, the State agency did not justify its final permit decision on that rationale.

The State is now arguing in its brief in this Court...

Justice Breyer: That's a... that's one point.

I've got that point.

That's a kind of technical point in my mind.

In other words, Alaska might really be polluting more, but because of this sort of which paper they wrote which in, we should just accept it.

Now, I got that argument.

But is there any other?

Mr. Hungar: But it's more than that, Your Honor.

The State agency expressly rejected that analysis, refused to conduct that analysis, refused to base its permit decision on that approach because it agreed it was contrary to the requirements of the act.

That's at page 199 of the joint appendix.

The State agency said we are... we agree that's not an appropriate way in which to analyze the BACT question.

That's consistent with EPA's regulations, in answer to Justice Ginsburg...

Justice Kennedy: Yes.

Justice Ginsburg: I asked that question before.

Mr. Hungar: Yes.

Justice Ginsburg: And... and it is a question of interpretation of the text of this statute.

I thought that EPA was taking an anti-bubble approach, that it said, you want to have generator 17.

We look at generator 17 and that's what the statute means by new source.

I thought you were taking that view, but maybe you're not.

Mr. Hungar: Your Honor, and... and Chevron itself actually discusses this, as you... as you suggested, but Chevron recognizes that EPA has... has construed the... has applied the bubble concept or not differently.

It... the bubble concept applies at the initial stage in determining whether a modification has to go through prevention of significant deterioration analysis.

But once... once that... once it is determined that the total emissions are going to increase so that the... the modification does have to go through that analysis, it is then... the bubble concept no longer applies and the analysis is done on an individual basis.

That's set forth in EPA regulations promulgated through a notice and comment rulemaking...

Justice Scalia: That's what I thought.

Justice Ginsburg: So it isn't a question of just loose, arbitrary, and capricious.

EPA is taking the position that you look at generator 17 because you've already made the determination that adding a generator, modifying another one, is going to add to the pollution.

Mr. Hungar: As a matter of law, what EPA has determined in... in exercising in... its rulemaking authority is that the statute requires that once it's determined that the BACT analysis must be made, it must be made on an individual unit basis, which is exactly what the State ultimately did here.

The State conceded that is correct as EPA's regulations state.

Only in its recent... in this Court is the State now trying to back away from that.

Justice Stevens: Mr. Hungar, can I ask you, going back to Justice Scalia's question earlier, is there a significant difference in the record before us in this proceeding than what the record would contain if they had followed the route of applying a review of the Alaska order through the State system?

Mr. Hungar: We don't believe so, Your Honor.

The EPA gave the State ample authority and Cominco ample... I mean, ample opportunity to place in the record whatever materials they wanted...

Justice Stevens: Because my impression, the record really was the same no matter which way you went.

Mr. Hungar: The Ninth Circuit, when this case was in... in the court of appeals, issued an order directing the preparation of a record and asking the parties what... to... to address whether the record was complete or not.

Cominco and the State said the record was sufficiently complete.

The only things that... that the State identified...

Justice Souter: Well, did they... did they put in the whole State record...

Mr. Hungar: I don't know that the whole...

Chief Justice Rehnquist: before the State agency?

Mr. Hungar: The... the administrative fills a box.

It contains internal ADEC communications, memoranda, analysis, the Cominco application.

It's quite detailed.

Justice Souter: But in any... I take your answer is they can put in the entire State record to go before the court of appeals.

Justice Kennedy: Is that the answer?

Mr. Hungar: Absolutely.

And... and again, under Overton Park and under this case's precedents, if the EPA record is incomplete for some reason, the Court can remand it to the agency for... for further... to complete the record.

But that doesn't... that doesn't suggest that EPA doesn't have the authority to act.

It merely suggests that EPA needs to exercise that authority in a procedurally correct manner.

Justice Ginsburg: It goes back to a question that has now dropped out of the case entirely it seems.

In the Ninth Circuit, I think EPA was arguing this is not a final order.

You have to wait until we go into court and the court that we would go into is a district court where a full record could be developed.

I take it you have now abandoned that argument and seen the error of your ways, and now you accept that this is final.

What led you to change?

Mr. Hungar: Upon further consideration of this Court's more recent precedents in the... in the area of finality, the... the Whitman case and Bennett against Spear and given the particular circumstances of this case where the agency... where EPA was not simply issuing an order to someone saying you're violating preexisting requirements of the act, but was in fact changing the status quo and stating that a... a permit that had been issued by the State that allowed construction could not take effect, in those circumstances we... we concluded that this Court's precedents regarding final orders are satisfied and that this is indeed a final order because it imposes legal obligations, new legal obligations, on Cominco.

Justice Scalia: Mr. Hungar, you... you've just told us that the reviewing court can have the full State record before it when it makes its determination.

What about EPA when it makes its determination, when it issues its order?

What... what does it have in front of it?

It doesn't have to have anything, does it?

Mr. Hungar: Well, it has to have evidence sufficient to make a finding that the State is not complying with the requirements of the act, Your Honor.

Justice Scalia: Well, but it doesn't... it doesn't have to do that on the basis of the record presented to the agency, does it?

Mr. Hungar: Well, it's difficult...

Justice Scalia: Did it in this case?

Is that... is that what it did?

Did it review the agency record here?

Mr. Hungar: Well, in this case it's... although they had extensive record materials before them, the... the flaw in the State's decision making is apparent on the face of the State's own decision.

As I said before, pages 207 and 208 of the joint appendix revealed that the State admits it doesn't have factual support for what it views as the foremost consideration justifying its decision.

But... but if EPA issued... issued an order under this act without... without the record materials in front of it, and... and had... therefore, had no basis for issuing an order, a court of appeals could set it aside.

Justice Breyer: Can you tell me?

I want to be very clear on what I didn't hear in answer to my question.

What I was concerned about... and I understand your legal arguments, but I was concerned about their claim.

If you win this case, what it means is more expensive technology goes onto number 17.

They run number 17 less.

They run 2 and 6 more, and the net result in Alaska is more pollution.

Now, you haven't said... I haven't heard you say, no, that's wrong.

What you have said is we shouldn't reach it.

There... there... they didn't make the claim in the right place with the right words.

And I want to give you a chance to say, no, that's wrong, if it is wrong.

Mr. Hungar: I think it is wrong, Your Honor.

It is... it is theoretically possible that if they installed this expensive generator and spent millions of dollars on it and never once turned it on and they ran all of their other... other generators 100 percent of the time without ever stopping them, it is theoretically possible that there could be slightly more pollution.

However, that is highly implausible, number one, and number two, there is no finding by the State that that is in fact what would happen.

This is merely argument in their appellate briefs.

And what is clear on the record is that under... if the State had adopted SCR as BACT, the total cap on emissions allowable by this facility would be hundreds of tons lower than the cap that was imposed by the State.

That's undisputed and perfectly clear that SCR would result in a total emissions cap far lower than the one that the State wanted to impose.

And so the State's argument, unsupported by any findings, is that... is the sheer speculation that Cominco would spend millions of dollars to install a generator that it would never use.

We submit that's highly improbable.

Justice Souter: So, do I... I understand you to say that they would be forced... I take it you're... implicitly you're saying they'd be forced to use this generator because the use of this generator would be the only way that they, in fact, could comply with the cap?

Mr. Hungar: No, Your Honor.

If... if they installed this generator and if... if selective catalytic reduction were deemed to be required, the total... there's a total emissions cap of 3,878 tons in the State's permit.

Justice Scalia: For...

Mr. Hungar: For all seven generators.

Justice Souter: for this... all seven.

Justice Scalia: Okay.

Mr. Hungar: And if... and that includes MG-17 under... using the Low NOx.

Under Low NOx, MG-17... its output is 531 tons if it's used throughout the year, 531 tons.

Under SCR it would output... put out only a tenth of that at full capacity.

So the total cap under BACT would be hundreds of tons lower, slightly less than 3,500 tons.

Justice Scalia: The cap... the cap wouldn't be lower.

The total emissions would be lower.

The cap would...

Mr. Hungar: The... the total emissions cap would be lower.

The... the company is free to... to choose how to... how to meet the cap, how to... which machines to operate at what times, as long as it doesn't exceed that cap.

But the cap is determined by adding to the preexisting cap total for the other six generators the additional amount that is deemed permissible to...

Justice Souter: So... so the answer is it would probably... most probably use the new generator.

Mr. Hungar: Absolutely.

Justice Souter: Theoretically it wouldn't have to.

Mr. Hungar: Correct.

Your Honor, we... Your Honors, we submit that Congress clearly intended EPA to exercise meaningful enforcement authority in the prevention of significant deterioration program.

Indeed, it specifically authorized in that very context EPA to issue the types of orders at issue here.

We, therefore, ask that the judgment of the court of appeals be affirmed.

Rebuttal of Jonathan S. Franklin

Chief Justice Rehnquist: Thank you, Mr. Hungar.

Mr. Franklin, you have 3 minutes remaining.

Mr. Franklin: Thank you, Your Honor.

Responding to Justice O'Connor's colloquy with counsel as to whether EPA could simply remand the case and then there might be a back and forth that could take...

Justice O'Connor: I didn't ask if it was... could remand it.

I asked whether it would be open to the State to go through the drill that EPA said it didn't do before and that the State said it didn't have the information to enable it to do.

Mr. Franklin: And... and that is precisely the problem in our view because EPA, if the Court upholds its authority in this case, can act by fiat at any time it wants on the basis of any information that it deems relevant, even after a permit has gone through the entire State process, even after it has become final under State law, and even after the source may have invested millions of dollars in the technology.

Then EPA could step in.

What we are saying here... and, Justice Breyer, we don't care which court...

Justice Ginsburg: Well, there are courts... there are courts with doctrines that would not allow such inequitable conduct.

I mean, you brought up it could be years and years later; anytime, 17 years later, EPA could wake up.

The answer to that was that no court would give an ear to EPA having just slept on...

Mr. Franklin: With respect...

Justice Ginsburg: on the situation.

Mr. Franklin: With respect, Your Honor, EPA's enforcement authority in this case is mandatory.

Under section 167, they shall take appropriate measures to stop construction.

Therefore, if the Court upholds their authority in this case, they have to exercise it at any point.

And, Justice Breyer, we don't care which court conducts the review.

We care that a court does and not EPA acting at any time by fiat according to any information that it may have at... at... on the basis of what it thinks may or may not be reasonable or unreasonable.

The point of the matter is, is that the State procedures are fully adequate to address any concerns that EPA has raised here, and its injecting itself into the process, disrupting the orderly process... and, Justice Stevens, the record would be different and it would be different because Alaska law allows, when a party has properly objected, for a de novo administrative hearing, at which the agency is allowed to present additional evidence, witnesses, and further refine and clarify its decision.

If there was any legitimate concern as to whether the State's decision wasn't clear, as it should have been, that is the manner in which it should have been resolved, through the administrative process.

And we are confident that it would have been resolved there, Justice O'Connor.

That's where the back and forth would have occurred, not in the manner of here where we're now 4 years later and we still don't have a decision as to what technology this company can use.

And finally, Your Honors, the... the point of the matter is there's no legitimate dispute here that the result of Alaska's decision is cleaner air and that cannot be unreasonable.

Chief Justice Rehnquist: Thank you, Mr. Franklin.

The case is submitted.

Attribution:

The Oyez Project

Featured:

New York v. United States - Oral Argument

Fri, 09 Jan 2009 14:49:32 +0000

Case:

New York v. United States

Media File:

91-543_19920330-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Peter H. Schiff

Chief Justice Rehnquist: We'll hear argument now in No. 91-543, New York v. United States, 91-558, the County of Allegany v. United States, 91-563, the County of Cortland v. United States.

Mr. Schiff.

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

The petitioners in this case challenge the constitutionality of the Low-Level Radioactive Waste Policy Amendments Act of 1985 as being in violation of the Federal system, and specifically we place our reliance on the Tenth Amendment and the Guaranty Clause.

We recognize that Congress certainly has the power under the Commerce Clause to deal with the subject of the disposal of low-level radioactive waste, but it is our position that the means that it has chosen here is constitutionally defective.

This act is directed solely at the states and makes the states responsible for the disposal of low-level radioactive waste that is generated within the state.

It makes the states responsible for the disposition of the waste of private generators, Federal generators, as well as any that is generated by the state itself.

This is a totally mandatory provision which requires the states to stay, to enter and to stay in the field of low-level, disposal of low-level radioactive waste.

The mandate is made particularly effective by the so-called take title provision which specifies that if the state has not otherwise provided for the disposal of low-level radioactive waste by January 1, 1996 that the state must take title of any such waste, and if it doesn't accept possession that it becomes liable for any, to the other generators if there are any damages, direct or indirect.

In other words, one way or the other the states are simply ordered by Congress to enter this activity.

The statute is truly unique in the annals of American jurisprudence.

We know of no other situation where the states have simply been mandated to take part in a particular activity.

In the past what Congress has done, it has essentially recruited the states in one of two ways to do the regulation that the Federal Government would like to have done.

It has either, as in the Hodel case involving the land mine, surface act, it gives the states an option.

You regulate according to the standards set out by the Federal Government, or otherwise we, the Federal Government, will do the regulation itself.

The other means that they have chosen is the Spending Clause, and to provide Federal money as an inducement for the states to do regulation in accordance with Federal standards.

Justice Scalia: Mr. Schiff, is that all this case is about, that Congress is going to have to tie New York's continuing receipt of highway funds to its assumption of this responsibility?

Mr. Schiff: Well, if that is legal, but it hasn't done that, Your Honor.

Justice Scalia: It seems like a lot of trouble for very little, very little point.

Mr. Schiff: Well, it's our position that the means that the Congress uses is a very important consideration in the constitutional structure of this, of the Government.

It is our basic position that the Constitution contemplates two sets of sovereigns and that the states are intended to have the choice as to which activities they will participate in.

So we think that the means that the Congress chooses is by no means a minor one.

We think it is a vital one, and we think it's a serious incursion on the constitutional structure.

Justice O'Connor: Mr. Schiff, do you suppose Congress could provide that a state without a site for radioactive waste, that no shipments of radioactive waste could be sent out of state?

Mr. Schiff: Yes, we think that's perfectly acceptable.

We have no problem, and we have not, have never objected to that separately.

But we think that's not a, what this case is all about either.

Justice O'Connor: Let me ask you another question.

If we were to agree with you on the take title provision, is it severable?

Mr. Schiff: We think not.

Justice O'Connor: Why not?

Don't you think Congress would probably have enacted this law absent that clause?

Mr. Schiff: Well, as we point out in our brief, we think the legislative history, all of which really shows up in the congressional record I think on December 19 of 1985, the day that this law was passed, shows that the, we don't think it would have been passed by simply excising the take title provision.

We think probably some law would have been passed, but it may have been something very different.

And as we read your cases that, if it is clear, as we think it is, they wouldn't have passed the legislation by simply excising the provision.

Then it's not severable, and there isn't any severability clause here.

Justice O'Connor: Well, I would have thought the problems were so acute that they probably would have passed it without that clause.

We don't know... that provision.

We don't know exactly where it came from.

It appeared rather at the last minute, didn't it?

Mr. Schiff: Well, as we read the legislative history, it came at the instance of the governors of the so-called sited states, ones that had disposal sites, and they made it plaint that they did not think that the legislation as it stood at that point was sufficiently, it didn't have enough teeth.

And they were concerned that the same thing that happened under the 1980 act would happen with respect to the 1985 act, so they said we need teeth.

However, the question of, this Court will have to decide whether it is severable or not, and all I can do is I think refer the Court, in addition to what I have said here on severability, to our brief and commend that you examine that legislative history.

I suppose the threshold question before the Court in light of the Garcia decision which the--

Justice Scalia: What do we do if there's no legislative history, or we don't think any of it is very convincing?

Do you have any advice for those of us who might find that to be the case?

Mr. Schiff: --Well, I think--

Justice Scalia: How do we decide severability?

I thought we decide it on the basis of simply whether the statute works without the provision.

Does it make sense.

Mr. Schiff: --Well, I think there are two elements, Justice Scalia.

If it works is the second element, but the first element is whether it's apparent that it would not have been passed without it.

It may be that it would be, if one doesn't look at the legislative history in this case, you might reach the conclusion that it is severable, because I'm not sure you can tell for sure that it would not have passed.

But for those of us, for those who do look at legislative history we think that the law, that it is apparent that it would not have been passed in that form by simply excising the take title provision.

Justice White: Well, did the title provision originate in the Senate?

Mr. Schiff: Yes.

As I recall it it originated in the Senate.

Justice White: And your senator was all for it, I take it?

Mr. Schiff: Senator Moynihan supported the legislation.

We don't think that... well, if I may I will... that is correct, but I will discus that slightly later.

Justice White: That's all right.

[Laughter]

Justice Scalia: He wasn't representing the State of New York anyway, was he?

[Laughter]

Mr. Schiff: Not in a constitutional sense, Your Honor.

Justice Scalia: He was representing the people of New York, wasn't he?

Mr. Schiff: He was representing the people of New York and he was acting as a senator, but he was not representing the constituted government of the State of New York which has to speak through the legislature and the governor.

And that is I think what this case is all about, that the, that the constitutional system does contemplate action through the state legislatures and through the state governments.

We think that is what the Federal system means and that is what did not happen here.

That is why we think this case is properly reviewable within the confines of the Garcia case.

You will recall while the Garcia case essentially said that this Court will not normally review Tenth Amendment challenges, it did recognize that it would consider or might consider statutes that impair the constitutional structure.

And we think that, contrary to the decisions below, that review of this case comfortably fits within what was left open in the Garcia case.

In fact we suggest that very little else would fit in any better than the present case.

Chief Justice Rehnquist: How exactly does this act of Congress violate the Tenth Amendment in your view?

Mr. Schiff: Because this act regulates not so much commerce as it regulates the states.

It picks out the states and simply directs the states, that you must do a particular activity.

We think that is not a power... we think the decision as to whether to act with respect to engaging in a particular activity is one that is reserved to the states under the Tenth Amendment.

Chief Justice Rehnquist: Well, how about where Congress regulates a state-owned railroad?

Mr. Schiff: Well, this is... the difference between this case and those cases, Your Honor, is that there what Congress is doing is to regulate an activity that the state has already chosen to undertake.

It could withdraw from that activity if it chose.

I mean, that's the kind of case that was involved in the trilogy of Fair Labor Standards Act cases, Wertz, National League of Cities, and the Garcia case.

It's also the kind of thing that was involved in South Carolina against Baker, where the Federal Government decided generally not to permit unregistered bonds if people chose to issue bonds, and, as to states, if they were tax free.

But it was applying across the board generally.

Chief Justice Rehnquist: You say the Congress just included states among the people it was regulating for carrying on a certain activity and it didn't single out states?

Mr. Schiff: That's right.

This case is in many ways analogous to an earlier New York against United States case, the one involving the taxing of the waters from Saratoga Springs that were sold by the State of New York, where the Court did say that you could tax New York if you're taxing them like everyone else, but the Court, admittedly by way of dicta, made it plain that the situation would have been very different if you're simply singling out the states and simply taxing them.

And the whole Court seemed to think that that, said that that would be unconstitutional.

And we think that's precisely the problem here.

This is a problem in this case that was essentially left open or avoided, if I might, in FERC against Mississippi, where--

Justice Blackmun: Mr. Schiff, are you asking that Garcia be overruled?

Mr. Schiff: --No, we're not.

Justice Blackmun: You're willing to sit on the little open door that was left there?

Mr. Schiff: Absolutely.

We think that it is a reasonable open door and what happens in some other cases we leave to another day.

We think that it plainly doesn't need to be overruled.

Justice Kennedy: Are you asking that FERC be overruled?

I see you're about to get to that.

Mr. Schiff: No.

We think FERC is quite distinguishable.

The majority of this Court in FERC made it quite clear that the state had a choice.

It didn't really have to do what that act of Congress required it to do because it didn't have to regulate public utilities, while--

Justice White: Well, you know that it, you know that's a, just a dream world.

Mr. Schiff: --Well, that's what some of the, that's what the dissenters indicated, and I'm not... but the fact of the matter is that the decision as it was written indicated quite plainly that that was critical to that decision.

Justice Kennedy: What are the underlying values that you're trying to further by the Tenth Amendment argument that you urge upon us?

Is it, is this simply just a matter of etiquette and form, the etiquette of federalism, or is there something more substantial?

Mr. Schiff: Well, we think, Justice Kennedy, that, as Justice O'Connor's opinion recently in the Ashcroft case indicated, that the Federal system is a very significant element in the constitutional structure, so we don't think it's a matter of etiquette.

We think that it is important for the states to be able to determine when to undertake activities, where to place their resources--

Justice Kennedy: Is that so that the states can be held accountable to their own political constituencies for the results they reach?

Mr. Schiff: --Absolutely.

Justice Kennedy: Do you think that the state would be any less clear in the responsibility it had to its constituencies if the Federal Government had enacted the statute such as Justice O'Connor proposed earlier, that no nuclear, no nuclear waste could be shipped out of a state unless all of these conditions are met?

It seems to me what the state has done here, or what the Federal Government has done here at least makes it clear who bears the responsibility for this scheme of regulation.

Mr. Schiff: We think that, for one thing it is the question of... waste can be stored as opposed to disposed of on a short-term basis, short-term basis meaning quite a few years.

That's certainly what is being done with respect to high-level radioactive waste.

So it's not as if, this isn't a question of whether we have to ship it out of state or not.

It's a question of whether we have to do this according to the drum beat of the Federal Government where they don't choose to do it.

Actually we're subject to Federal regulation, we're being given a time table which we're not convinced is meaningful or desirable for the people of the State of New York.

So in that context we think the Federal Government should be doing the regulation rather than imposing its will directly on us.

And it's not a matter of shipping it out.

It's a matter of how we control our own destiny.

I do want to say that, perhaps in conjunction with your question, that it is argued by our opponents that this is really, was an agreement among the states, and that somehow that is the way the Federal system is supposed to operate.

Now we just don't understand that here.

The Constitution does provide for agreements though compacts, which again involves the formal action of various state legislatures and the executive, but you don't do agreements by having lobbying activities, even from the Governors' Association or other similar groups and say that represents a state agreement.

Justice Kennedy: I suppose my problem is that it does seem to me that if the Federal Government just sat down for a bit with a pencil and paper it could devise some sort of constitutional scheme to accomplish precisely this result.

So I wonder what the underlying value served, that is being served by our accepting your argument.

Mr. Schiff: Well, Justice Kennedy, we think the Government could also probably find an appropriate means of doing it.

The problem is that they didn't do it, and we think that this opens up a Pandora's box.

Justice O'Connor: Well, Mr. Schiff, I suppose there's a difference between offering incentives to the states to make their own choices and simply mandating that those choices be made.

Isn't that right?

Mr. Schiff: That's precisely our position.

Justice O'Connor: Now, I suppose that finding a location for radioactive waste is a little like trying to find a location for a prison.

We all think we need to have these locations, but no one wants it in their state, their community, their county, their city.

Isn't that right?

Mr. Schiff: Well, as a matter of fact, Your Honor, no, it's not totally correct.

I mean, it may be like--

Justice O'Connor: By and large--

Mr. Schiff: --It may be like finding a prison, except that I know our experience in New York is that there are some areas that want prisons because of the income that it--

Justice O'Connor: --Well, those are pretty few and far between, and I suppose it's not very attractive to Congress to have to make that choice, and this is a rather clever way of shifting responsibility for making the choice to the states, which is politically very unattractive, I would think.

Mr. Schiff: --Well, we agree with that position, and what's happened here is that the Congress has made the directive and all the burdens, all the accountability is shifted to the state which doesn't have the right to decide whether to do it or not.

Chief Justice Rehnquist: Certainly it's the State of New York deciding in this case and not Allegany and Cortland Counties deciding, I guess.

They might have different views.

Mr. Schiff: Well, I think the basic decision is that of the state.

That's correct.

I mean--

Chief Justice Rehnquist: There's no Tenth Amendment that protects the counties from the state.

Mr. Schiff: --Not in this case, no.

I mean, it's, the National League of Cities, you point out the Tenth Amendment did apply to counties in some respects, but I think in this case it would be the state that is being protected, and that's all that any of the petitioners have argued.

Justice White: Would it have made any difference to you if the Congress had said and by the way, we'll pay half the cost, that this law, that will be foisted onto the State of New York?

Mr. Schiff: Well, if it's only, if it's foisted on, Justice White, it wouldn't make any difference.

But if they give us a choice of we will pay half of this and you have an option as to whether you do it, which in the scheme that--

Justice White: No, they're ordering you to do it and they're saying... what if they say we'll pay the entire cost?

Mr. Schiff: --I think our position is that as long as they mandate it without giving the legislature--

Justice White: So you don't think this is just, this is just a budget problem for New York?

Mr. Schiff: --No, I don't think so.

Absolutely not.

And by the way, I should say that the Government somehow thinks in its brief that the Spending Clause is involved here because of the payments that go from the, some money is going from the generators and some of it goes in an escrow fund.

But the statute makes it clear that's not Federal money.

It's not appropriated, it's simply kept there.

So I simply don't understand the argument that the Government has made that that is, the Spending Clause is involved here.

Justice Scalia: Mr. Schiff, is the State obliged to regulate under this law?

Can the State comply with this law without using any of its governmental powers?

Mr. Schiff: No.

It doesn't have to do anything necessarily in the first part of this, although the language is mandatory, but I think it could do without that.

But when you get the take title provision it has no choice but this waste is given to it.

Now what's extraordinary about this legislation is that the Federal Government, as to a good part of its radioactive waste, now stuff from the naval reactors and that low-level radioactive waste is not the state's responsibility, but the Federal Government has actually made the state responsible for the Federal waste.

It's a truly extraordinary law.

Justice White: But you don't challenge it on any ground other than the Tenth Amendment, do you?

Mr. Schiff: Well, the Tenth Amendment, the Guaranty Clause.

I mean basically we're challenging... no, that's the basis on which we're challenging, the Federal system.

I mean, we're not trying to dissect the various elements of what makes up the argument that the Federal system is vital to the constitutional structure.

Justice White: Do you think Congress can pass a law that's generally applicable around the country that says if you're going to operate a waste disposal facility you have to do it in the way we prescribe?

Mr. Schiff: I think it can do that.

Of course, yeah.

I mean, it has... and it's doing that.

I mean basically it, the NRC controls the standards by which you regulate radioactive materials.

Justice Stevens: May I just ask a small question about your argument directed at the take title provision?

Is it at the specific shall take title to the waste, and it also says shall be obligated to take possession of the waste and shall be liable for damages directly or indirectly caused?

Is it just the title part or do you make the same attack on all three obligations?

Mr. Schiff: Well, it's really all three in combination.

Justice Stevens: So it wouldn't really matter to you if you didn't have to take title?

Mr. Schiff: I think the worst part of it is really being responsible, being liable for anything that may happen if we don't take it.

This is a... our obligation in this can run for 5 centuries.

I mean, we think that that is a responsibility that should remain with the generator of the radioactive waste.

Now, to the extent that the state has generated some of this waste we are not saying that we're not, we wouldn't be liable, but we're saying it shouldn't be foisted on us, the rest of the liability.

Justice Stevens: But isn't there a way you can avoid that liability?

Mr. Schiff: I have no idea how we... well, yes, that's why we're here in Court.

[Laughter]

Justice Stevens: There's no way you can get a, set up a program that would avoid your taking--

Mr. Schiff: Well, I suppose, sure, but, I mean, but that's again telling us we have to do something, then we would have to do the regulatory scheme that Justice Scalia was asking about.

So it's one way or the other.

We have been conscripted, commandeered to do the Federal Government's regulation here.

Justice Scalia: --Taking title you say is the sanction for not regulating as the Government has told you to regulate?

Mr. Schiff: That's right, but it's a form of regulating because once we have it eventually we would have to do something with it.

And as Justice White points out, that the Government can require people who are the owners of it to deal with it, so that that puts us in that category and we can't avoid it.

We are stuck.

Justice O'Connor: Well, Mr. Schiff, it's a pretty clever scheme.

Maybe Congress can just require the states to take over a pro rata share of the national debt they have run up.

Mr. Schiff: Well, that was a question that we had thought about.

If this starts I think it leads us down that path.

It can require the state to have beds for all people of a particular illness by some date, and if they don't have it provide a suit to let people who haven't been given a bed, we'll say cancer patients, to sue the state for that.

I mean, it's a radical change of the Federal structure, and we certainly hope that the Court will agree with us.

If there are no further questions at this time I would like to reserve the remainder of my argument for rebuttal.

Argument of Lawrence G. Wallace

Chief Justice Rehnquist: Very well, Mr. Schiff.

Mr. Wallace.

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

This is the second case this term, Arkansas against Oklahoma being the first, concerning Federal legislation addressed to problems arising from the transmission of pollutants across state lines.

In itself the waste disposal problem Congress faced pitted states against states in a manner only Congress could resolve.

The three states that had sites could not discriminate against wastes originating out-of-state, the other states lacked incentive to develop additional facilities, and the three sited states were in the unfortunate position of either having to accept waste from throughout the country or shutting down their disposal facilities and depriving the generators within their states of disposal facilities.

There was also a broader national concern implicated, and that is that the problem of waste disposal must be solved if the people of this Nation are to continue to enjoy the important benefits of the technologies that generate those wastes.

There are millions of residential, commercial, industrial, and institutional customers who get their energy needs from nuclear power plants licensed under Federal statute.

There are--

Justice Scalia: Mr. Wallace, that dilemma that the three states that had waste disposal facilities, that they confronted of either shutting them down so that even they couldn't use them for their own in-state waste or else having to accept waste from everywhere, Congress could have solved that problem under the Commerce Clause, I presume, couldn't it?

Couldn't it have allowed those states, it could have passed a statute allowing those states to use their in-state disposal sites only for their own nuclear waste?

Mr. Wallace: --We believe Congress did solve the problem under the Commerce Clause.

It could have taken that route, but the studies done by the National Governors' Association and others who were expert in the field indicated that 50 separate disposal sites, one in each of the states, would have been very detrimental.

It would have lost economies of scale that were important to the maintenance of these technologies.

Justice Kennedy: That had 47 votes going in, I'm sure.

[Laughter]

Isn't it true, Mr. Wallace, or is it, that this statute is a step further than the Congress has ever gone in that it is telling a state that it must enact a certain rule?

Mr. Wallace: Well, it is giving the state a choice of options because the states came to Congress and proposed that Congress solve this problem by retaining authority in the states to provide for the handling of the low-level nuclear waste.

Justice Kennedy: No, but it says the state shall take title.

Mr. Wallace: That is only if the state doesn't exercise any of the other options available to it, some of which involve minimal state undertaking, such as contracting with an existing disposal site in one of the compacts, or authorizing a private contractor to develop a site within the state.

Justice Kennedy: But can we begin by saying that there is no direct precedent for an enactment of this kind?

Mr. Wallace: I think that is true.

This is a novel approach to a problem where Congress, pursuant to a unanimous request from a state organization representing the governors of all 50 states, was dividing up the responsibility for handling nuclear waste disposal, where Congress, the Federal agencies would undertake the high-level waste responsibilities and most of the responsibility for low-level waste generated by Federal generators, and the states would retain the policy-making authority with respect to the locally sensitive issue of selecting sites for disposal of the low-level nuclear waste.

Justice Kennedy: Could the Federal Government command that the states take title to all illegal handguns within their borders and be responsible for the damages caused by failing to take title and possession?

Mr. Wallace: I can't answer that question definitively.

It certainly would go much further than what has happened here.

Justice Kennedy: Generically it's the same kind of statute, isn't it?

Mr. Wallace: The take title provision, which we don't believe is even ripe for decision today in the setting of this case, it may never apply to New York, it can't take effect until 1996, is only one option down the road if New York doesn't undertake any of the other options that are available here.

It was added in on the face of things because all of the other disincentives would fall on the generators, and there was some fear that this might impair the availability of the technologies that are so important to the country and that an additional disincentive would be useful to insure that the states would do something on behalf of the generators within their borders.

Justice Scalia: It's rather like saying that 30 years in prison is one of your options for embezzlement.

You can either embezzle or spend 30 years in prison.

The Federal Government has told the states that they can either regulate or the nuclear waste is yours.

I mean, in a sense it's an option, but don't you think it's, a sanction is a more descriptive term?

Mr. Wallace: Perhaps.

We refer to it as a penalty in our brief.

It's part of a series of incentives and disincentives that Congress placed in the '85 act after the 1980 act proved to be too toothless to get the job done.

And Congress was relying primarily upon the political clout that the generators within each state would have as the burdens would fall on them to get the state to undertake the responsibilities, and this was added as a final possibility.

Exactly what kind of sanction or penalty it is is really subject to much doubt, which is another reason why ripeness principles should be followed here.

It is far from clear what, if any, actual enforceable liabilities, enforceable in Federal or state court, would be imposed by this, given the clear statement rule of the Atascadero case and other questions about possible implementation of this provision would arise when and if it ever comes into play.

There is no indication that New York will ever actually be subject to this.

It's even doubtful whether the generators, if it did kick in, would make the request that would impose this on New York because they don't like to call attention to themselves in ways that might create public controversy.

There's much that is speculative and in our view premature about the complaint concerning the take title provision that New York is asking this Court to use as a vehicle for undoing this entire statutory scheme, even though it has had the benefit of the extension of time for disposing of its waste in the sited states and the payments made under this scheme for a period of many years now.

And I might point out that most of the amici who are supporting New York with respect to this issue that is prematurely presented agree with us on the severability question.

And if I may just say a word about severability, the answer to that seems quite clear to us for two reasons.

One is that the 1985 act displaces and in terms repeals the 1980 act which would again be resurrected if the 1985 act were not severable.

And it is quite apparent that Congress wanted to make improvements by adding incentives and disincentives to the 1980 act and would prefer the remainder of the 1985 act to the 1980 act, and in fact the 1985 act passed unanimously in the House initially without the take title provision which was then added in the Senate.

There was never a dissenting vote recorded in any of the enactments of the entire 1985 act.

And like the 1980 act which took basically the same approach, it was signed into law by a president who was himself a former governor.

So the circumstances that gave rise to this enactment make it singularly implausible to think of it as an attempt to aggrandize Federal power at the expense of the states.

Indeed the most basic provision of the act is the conferral of power on the states, acting through the regional compacts, to discriminate against interstate commerce which they would not be allowed to do otherwise.

And other than the take title provision which is not ripe for review in our view, we believe that the provisions of which New York complains are squarely within the principle of South Dakota against Dole.

Justice O'Connor: Mr. Wallace, if we disagree with you on whether the take title provision is valid and if we disagree with you and think it is indeed ripe for decision, do you think it's severable from the balance of the act?

Mr. Wallace: We do indeed, for the reasons I stated a few moments ago, that otherwise the 1980 act, which Congress and the National Governors' Association all had found unsatisfactory, would be resurrected to replace the improvements that were enacted in the '85 act.

And the House itself had unanimously passed the '85 act without the take title provision.

So there seems little doubt about what the proper resolution of that is if... Congress of course could amend either, but there's no reason to think it would prefer to start with the '80 act rather than the remainder of the '85 act.

But we think that the constitutional power of Congress was adequate to the task in the manner Congress went about this, that the commerce power, as augmented by the necessary and proper clause, allowed Congress here to enact this measured series of incentives and disincentives to redress the inequities that had occurred among the states and to provide assurance not only that those inequities would not reoccur as they had after the 1980 enactment, but that the serious threat that they posed to important national concerns would not be threatened again because of failure to provide sufficient incentives in honoring the states' request that they be allowed to exercise the regulatory authority here.

We think it would be singularly inappropriate to adopt in judicial hindsight some kind of a least restrictive alternative approach to adjudging Federal legislation of this kind.

I mean, what may seem a reasonable way of adding something to the deal, such as otherwise you'll lose your highway money so you should go along with these provisions at that possible expense, may well have been a deal breaker.

Enormous effort went into negotiating and enacting this legislation.

Justice Kennedy: By deal breaker you mean the enactment would not have succeeded if they had not used this particular device?

Mr. Wallace: Well, what--

Justice Kennedy: Because if that's the import of your question, then this case does have great significance, doesn't it?

Mr. Wallace: --Well, what I am suggesting is that what was acceptable to the parties who over a period of years negotiated a compromise between the sited and the unsited states and what... is not always apparent in hindsight to someone who didn't participate in those negotiations.

All the states are treated equally under this legislation, and all had a vigorous voice in the Congress.

This is very unlike cases dealing with insular minorities or cases dealing with state discrimination against out-of-state commercial ventures.

Justice Kennedy: It's like the poor.

They all have an equal right to be disappointed.

Mr. Wallace: Well, it's very different from the state discrimination against interstate commerce cases, where somebody who is not a vigorous participant in the state's political processes is affected by what the state has done in a way that discriminates against interstate commerce.

It's in settings of that kind that the Court has said that the judiciary in hindsight is to see whether a less restrictive approach would have been equally effective.

Justice Scalia: I think what you're saying, Mr. Wallace, is that we really don't know whether this deal would have been put together without this provision, and therefore if we find it invalid I guess the only fair thing to do is to find the whole statute invalid.

That seems to contradict an early point you made, though.

Mr. Wallace: I'm not saying that it's not, I'm not saying that it's not severable.

This--

Justice Scalia: I don't think you can make both arguments then, though.

I mean, either, you know, either it wasn't an essential part of the whole deal and therefore is not severable, or it was, in which case the argument you're now making is valid.

Mr. Wallace: --The argument I'm making is that this additional disincentive was within the legislative power of Congress to enact because it made a judgment about what would be an appropriate grouping of incentives and disincentives.

And what might not be necessary and proper in some other settings, given the magnitude of the legitimate Federal concerns at stake here and the unanimous requests of the states that the decision-making authority be reposed in the states, this was a necessary and proper exercise of the commerce power to see to it that this state against state dispute was equitably resolved and would no longer threaten the availability of the important medical research and energy technologies that are vital to the people of this Nation.

That is our submission, if there are no further questions.

Argument of William B. Collins

Chief Justice Rehnquist: Thank you, Mr. Wallace.

Mr. Collins, we'll hear from you.

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

I'd like to begin by framing this case from the point of view of the three sovereign states I represent and then, because there were several questions about the implications of overruling Garcia, I'd like to address the point that even if this Court, that this case does not hinge on a broad interpretation of Garcia.

Like New York, the sovereign States of Washington, South Carolina, and Nevada have a strong interest in state sovereignty and in the Tenth Amendment, but this case is unlike any of the other Tenth Amendment cases that have come before this Court.

One of the obvious differences is this does not pit Federal power against state power.

Indeed South Carolina, Nevada, and Washington intervened in this case to support this action.

And when you have looked at the amicus briefs you have seen that--

Chief Justice Rehnquist: Isn't what you mean, Mr. Collins, that as a matter of arguments before this Court the states are not all on one side, not that the statute doesn't pit Federal power against state power?

Mr. Collins: --Well, indeed, Your Honor.

But my point is that I think if you look at National League of Cities, Garcia, Hodel, you would not find states here advocating that the statute was valid.

That difference in opinion doesn't mean that it's valid, but it's an indication that this is a different kind of case.

Justice Scalia: That's just, that was just a regrettable consequence of human selfishness.

All states were losers in Garcia.

They all had to pay the higher salaries.

Here some states are losers and some states are winners.

It's not at all surprising that the winners are going to come in and say leave everything alone.

Mr. Collins: That's exactly right, Justice Scalia, and that's why this is a different kind of case.

New York--

Justice Kennedy: I think it is somewhat surprising that the State of Washington and South Carolina and Nevada are arguing that the Federal Government has the right to direct them to enact a law and direct them to take a governmental action without conditioning it the way it's often, the way it's usually done.

Mr. Collins: --Well, first, Justice--

Justice Kennedy: I think that's very surprising.

Mr. Collins: --Well, I don't think it's surprising at all.

This case involves an inherent classic kind of interstate conflict between the states.

Some states, like New York, generate a lot of nuclear, low-level nuclear waste.

They don't want to store it in New York.

Other states, like Washington, South Carolina, and Nevada, have tried to deal with that problem.

We have sites in our states to take care of this waste.

But as a result of the dormant Commerce Clause and this Court's decision in Philadelphia v. New Jersey we have no option but to take waste from all the other states that choose to send it to us, or, or close down the site.

Now this conflict is exactly the thing that separates this case from the other kinds of cases where, as Justice Scalia said, all the states are losers.

In this case states that try to be responsible in dealing with their waste are losers and the other states can take advantage of them.

Justice O'Connor: Well, Mr. Collins, I just don't see any way to draw the line that you would have us draw on behalf of those three states.

I can't believe that the State of Washington or South Carolina or Nevada would be in here arguing that Congress would have the right to shift off part of the national debt or shift off all medical costs by congressional feat to the states, or any other of the potential schemes that this would open up.

I can't believe you'd be here making that argument.

Would you?

Mr. Collins: No.

Indeed we would not.

And we're not--

Justice O'Connor: Well then how do you justify it here, because it's a principle we have to deal with, not some individual scheme?

Mr. Collins: --That's right.

And I think that this law meets the kind of principles that, the narrow kinds of exceptions where the Federal Government can make a statement to the states and involve them in a Federal-state cooperative program.

And the point I want to emphasize is that even, this case does not hinge on a broad reading of your decision in Garcia.

I think that even if we analyze this in light of the dissenting opinions in Garcia that this particular enactment would be valid.

And let me do that.

There are basically two dissenting opinions in Garcia.

One was authored by Justice Powell, and Justice Powell focused on the fourth National League of Cities test to look to see whether the Federal interest is demonstrably greater and state compliance is essential.

Now I submit in this case the Federal interest is demonstrably great, simply because nuclear, the nuclear waste area is something that the Federal Government has been involved in, and it's a problem that must be solved.

Justice Kennedy's handgun example, people certainly differ about whether handguns are a problem or whether they should be regulated.

But no one here is saying that we don't need to safely dispose of nuclear waste.

Justice O'Connor: Well, and I suppose everyone would agree that we need to solve the problem of medical care of the indigent and we need to solve crime and we need to solve prison space, and so forth and so on.

Mr. Collins: But it's a unique concern of the Federal Government, Justice O'Connor.

The second point that I would say why there is a Federal interest is that this case involves a central concern of the Commerce Clause, and that was something that Justice Powell focused on.

This is not a case where the Federal Government through the Commerce Clause power has the ability to have a wide reach and deal with other kinds of things.

This goes to the heart of the Commerce Clause because of the dispute between the states.

When one state acts to have a site, then other states are relieved of the responsibility, and that inherent conflict, I think, means that the, it is a central concern that the Federal Government in those limited states can make a kind of command to the states.

Also I think state compliance is essential simply because you have to do something with this waste.

It needs to be dealt with.

Justice Scalia: Isn't there a fundamental difference between this case and Garcia in that when this statute says each state shall be responsible for providing for the disposal of waste, it doesn't limit it to waste generated by the state itself.

It means all waste in the state, and therefore this statute cannot be complied with by the state without the state using its sovereign powers.

The Federal Government is directing the state how to exercise its sovereign powers.

Mr. Collins: It's directing the state to take responsibility, Justice Scalia.

Justice Scalia: Well, you can put it that way if you like, but it can't take responsibility for somebody else's waste without exercising its sovereign powers.

And that was not Garcia.

Mr. Collins: That's what I'm saying.

I'm not claiming that this... I'm talking about... I agree.

Justice Scalia: I'm saying it's worse than Garcia in that respect, not better.

Mr. Collins: The states are not, are given maximum amount of flexibility to decide how to do this.

There are nine compacts that have been formed.

The states have a wide option.

The last point I'd like to make before I take my seat is just to concur with counsel for the Government that if the Court finds the so-called take title provision invalid, that it is clearly severable from the remainder of the act.

There is no severability clause, but there is a presumption in favor of severability.

It passed the House unanimously, and in fact the act would operate just fine without the so-called take title provision because this act gives part of the power of, the Federal power to the states so that the states actually have the ability when acting within a compact to exclude waste that is generated from outside the compact region.

And that is why we would say that this does not, is not detrimental to the state power.

In fact states have a lot of autonomy.

They have choices about how to deal with it, albeit with the take title provision they must be responsible.

They have a wide range of options of how to deal with the waste.

They can enter into compacts, they can contract with compacts.

One compact can contract with another compact.

The only thing that they are prohibited from doing under the take title provision is simply ignoring the problem.

So we would request that this Court affirm the judgment below or, if the Court finds that the take title provision is invalid, the Court should sever that provision and sustain the remainder of the law which we think is an excellent example of the partnership between the Federal Government and the state government.

Rebuttal of Peter H. Schiff

Chief Justice Rehnquist: Thank you, Mr. Collins.

Mr. Schiff, you have 3 minutes remaining.

Mr. Schiff: I have nothing further absent questions from the Court, Your Honor.

Chief Justice Rehnquist: Very well.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Pennsylvania v. Union Gas Co. - Oral Argument

Sun, 06 Feb 2011 03:45:14 +0000

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Pennsylvania v. Union Gas Co.

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87-1241_19881031-argument.mp3

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87-1241_19881031-argument.xml

Transcript:

ORAL ARGUMENT OF JOHN G. KNORR, III ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 87-1241, Pennsylvania v. Union Gas Company.

Mr. Knorr, you may proceed whenever you're ready.

John G Knorr Iii: Mr. Chief Justice, and may it please the Court:

The question in this case is whether a private party may sue a state for damages in federal court under the Superfund Act.

Now, the parties have briefed and the case could present constitutional issues regarding the Eleventh Amendment and about the continuing vitality of this Court's decision in Hans v. Louisiana.

But the first issue is the statutory question of whether Congress intended to subject states to these kinds of actions, and if the Court agrees that Congress did not, then there is no need to reach those constitutional issues.

When the Court of Appeals first looked at the Superfund Act, it found that the statute showed no evidence of a congressional intention to subject states to private liability.

They found that the statute was very similar to that construed in the Employees of Missouri case, that is, states were literally included among the universe of possible defendants, but there was not the specific indicia that this Court has found necessary to override the Eleventh Amendment.

When on remand from this Court, the Court of Appeals next looked at the statute, they looked at it in light of intervening amendments in an act known by its acronym as SARA, and in light of this Court's decision in Atascadero that to affect the Eleventh Amendment Congress must make itself clear, must express itself with unmistakable clarity in the words of the statute, and the Court of Appeals found that unmistakable clarity in the last clause of an exception to a provision that excludes state and local governments from liability under certain circumstances.

When you look at that amendment--

Unidentified Justice: Where is that set forth either in the briefs or in the petition?

John G Knorr Iii: --The amendment is set forth on pages 3 and 4 of our brief on the merits.

Unidentified Justice: Thank you.

John G Knorr Iii: The amendment is codified at Section 9601(20)(D), and when you look at it as a whole, it is apparent that it's not about the Eleventh Amendment at all.

What Congress was focusing on here was the very different and very narrow question of what do you do about a unit of government that has acquired a site involuntarily, because under Superfund as it was originally enacted, there is strict liability, and a unit of government could well find itself liable under those circumstances.

When the SARA amending act was going through the Senate, the Senate added a provision that would exclude government liability under those circumstances.

The amendments then went to a conference committee, and in the conference committee an exclusion or an exception to that exclusion was added which provided that even if a site was acquired involuntarily, if the government unit then did something to cause or contribute to the discharge of hazardous materials, there would then still be liability, and it's that provision that the Court of Appeals fastened upon and in which they felt Congress had, with unmistakable clarity, focused on the Eleventh Amendment.

There is, however, no explicit mention of the amendment in the statute.

There is nothing in the legislative history that indicates that Congress was even thinking about the Eleventh Amendment or the problems of government immunity in general--

Unidentified Justice: So do you think unmistakable clarity means explicit reference to the Eleventh Amendment?

John G Knorr Iii: --I think in light of Atascadero, it would certainly be prudent, but I wouldn't go so far as to say that it is invariably necessary in every circumstance.

Unidentified Justice: Well, what effect do you give to the second sentence of subparagraph (D) if it is not to impose liability?

John G Knorr Iii: I think that is simply the kind of general liability language, which means that if the unit of government doesn't fit within the first sentence, that is, the exclusion of liability, we are then back to square one with the rest of the statute, and whatever would otherwise control under the statute controls.

I think if you look even in isolation at that last clause of the second sentence, the clause that begins "such a unit of government", you wouldn't find... what you'd find are the following characteristics.

You'd find no mention of the Eleventh Amendment or of state immunity.

You find no mention of state liability to private parties.

You find it is part of a statute which does explicitly mention federal liability, to which the Eleventh Amendment is, of course, no bar.

And you find that even this narrow clause of the statute incudes local governments as well as states.

Now, local governments, of course, don't have any Eleventh Amendment immunity, and it seems to me that this is not the kind of language--

Unidentified Justice: Well, what's the immunity to or from?

It's from being sued in federal court, isn't it?

John G Knorr Iii: --By a private party.

Unidentified Justice: And is it not, it's not immunity from liability.

John G Knorr Iii: I think it amounts to much the same thing in the case of the states--

Unidentified Justice: Well, why is that?

I mean, if you're liable under a federal statute, if you can't sue in federal court, you could sue someplace else.

John G Knorr Iii: --Well, not in this case.

In this case Congress has given exclusive jurisdiction to the federal courts.

Unidentified Justice: You mean in this case it's the same thing.

John G Knorr Iii: In other cases it might not.

Unidentified Justice: But normally liability and jurisdiction really don't go hand in hand.

John G Knorr Iii: That is true.

Unidentified Justice: And, of course I suppose it hurts you that it doesn't in this case.

John G Knorr Iii: I don't know, in this case it does because--

Unidentified Justice: Well, if Congress knew that and said the states are really liable, and therefore, federal courts have jurisdiction.

John G Knorr Iii: --But they didn't, they didn't do anything--

Unidentified Justice: Well, they didn't expect their liability provision to be empty.

Don't you think it was supposed to be recoverable somewhere?

John G Knorr Iii: --Oh, it is.

States are liable to the United States, and under this kind of a statute, only to the United States.

Unidentified Justice: Well, except for the Eleventh Amendment, do you suppose that they could be sued by a private party and rightfully claim liability?

John G Knorr Iii: Well, except for the Eleventh Amendment, certainly.

Unidentified Justice: So you agree that the states were made liable.

John G Knorr Iii: There is... oh, certainly there is liability here.

There is liability to the federal government, but because of the fact that exclusive jurisdiction of these causes of action is within the federal courts, since the Eleventh Amendment is a bar in the federal courts, I don't see any circumstances where a state could be held liable to a private party.

Unidentified Justice: So you're really saying that the provision in SARA for state liability should be construed as not providing for liability to private parties.

John G Knorr Iii: Exactly.

I think it remains, the statute remains very--

Unidentified Justice: Even though, even though on its face it would seem to apply to private parties as well as to the federal government?

John G Knorr Iii: --I think the statute is very similar to the statute that was construed in the Employees of Missouri case.

Unidentified Justice: Well--

John G Knorr Iii: And in that case as well there was certainly literal inclusion of the states among the potential defendants but there was not the explicit, unmistakable clarity necessary, that this Court has found to be necessary to make sure that Congress has specifically and expressly focused on the issue of Eleventh Amendment immunity, that this kind of general language, imposing liability on states, among others, is not enough.

And I think the inclusion of local governments in that last clause is very telling.

I think that it's very difficult to say that Congress was focusing on the Eleventh Amendment immunity here.

Otherwise they would not... this is not what Congress would have written under those circumstances.

And I think the proof of that is to look at what Congress did write virtually, virtually the same day, at almost the identical moment, they were considering amendments to the Rehabilitation Act in response to the Court's Atascadero decision.

And what they said there was this.

A state shall not be immune under the Eleventh Amendment from suit in federal court for a violation of, and then they list the statutes.

That's a clear statement under Atascadero.

This language in SARA, we submit, is not even close to a clear statement.

As I said, if the Court agrees, there is no need to go any further in this case.

But I will not talk about the constitutional issues that we've briefed.

Union Gas has asked the Court to re-examine and reverse its... or overrule its decision in Hans v. Louisiana, and I will get to that in a minute.

But I'd like to talk first about the somewhat different question of the proper relationship between Congress's powers under Article I of the Constitution on the one hand, and the Eleventh Amendment on the other; more specifically still, whether under its Article I powers, specifically the Commerce Clause, Congress may unilaterally abrogate the Eleventh Amendment immunity that a state would otherwise enjoy.

And when the Court has looked at this issue in the past in cases such as the Parden case, it has employed a two-sided or two-step inquiry: first, did Congress intend to subject the states to liability; and second, is there any evidence of state consent to suit in federal court?

Unidentified Justice: --This argument, I gather, doesn't relate at all to Section 5 of the Fourteenth Amendment, does it?

John G Knorr Iii: I'm sorry, Justice Brennan?

Unidentified Justice: Section 5 of the Fourteenth Amendment.

John G Knorr Iii: No, this does not.

Unidentified Justice: Under that, Congress could abrogate the Eleventh Amendment.

John G Knorr Iii: Under that, Congress may undoubtedly abrogate the Eleventh Amendment immunity, but in the Article I context, the Court has in the past locked for some evidence of consent on the part of the state.

Now, the consent can be constructive rather than express.

Congress may act to induce consent, and Congress may act to define what will be construed as consent, but consent of some kind there has to be.

And I think it's important to remember that in this case Union Gas apparently concedes, because they haven't mentioned the issue in their brief, that nothing Pennsylvania did or is alleged to have done can be construed as consent to federal jurisdiction here because everything Pennsylvania is alleged to have done they did before the passage of the Superfund Act.

Union Gas doesn't rely on any theory of consent.

Their theory is that consent is unnecessary and irrelevant, and they rely to support that argument on the idea that a unilateral ability to abrogate immunity is somehow necessary to vindicate Congress's Article I powers.

But this, I would say, is exactly the concern that this Court recognized and addressed in Ex parte Young.

These kinds of Supremacy Clause concerns are exactly what the Court recognized and tried to accommodate in Young.

Young is the Court's effort to balance and accommodate the competing interests of state and national governments.

Union Gas's approach, the approach they advocate, reconciles, if you will, those competing interests by simply eliminating the legitimacy of the state side of that balance.

It's simply a principle of congressional supremacy.

And that, we submit, is not the proper approach for this kind of delicate constitutional problem.

They rely next, as we've already discussed a bit, on Fitzpatrick and on the principle that under its Fourteenth Amendment powers Congress may abrogate immunity.

But what, Fitzpatrick says is that under the Fourteenth Amendment Congress may do what is constitutionally impermissible in other contexts.

Fitzpatrick in the Fourteenth Amendment is the exception that proves the rule.

What they really seem to be suggesting here is that Fitzpatrick was wrongly decided, or at least was wrong in its rationale.

But if you put... the Fourteenth Amendment is not just another addition, is not just another power given to Congress.

It's not just another limitation on what states may do.

It changes the very nature of the relationship between the states and the federal government.

And it is for that reason, I think, that the Court felt that in order to vindicate that power, it was necessary that Congress be able to abrogate the Eleventh Amendment.

But if the Fourteenth Amendment simply stands on the same footing as Article I, then what we are left looking for is some general principle that Congress may set aside what would otherwise be constitutional limitations whenever it wants to.

And I don't know of any support for that principle.

We believe that Fitzpatrick was correctly decided, and also, that the analysis in Parden is correct and ought to remain a part of the Court's Eleventh Amendment analysis.

Consent of some kind in this context is necessary, and consent is entirely, and I believe concededly absent in this case.

I'd like to move on now, if I may, to the... to the last, question that the parties have presented.

Unidentified Justice: Would you say that the only basis for liability of the state is if the state did something?

John G Knorr Iii: The way it ordinarily works is--

Unidentified Justice: Well, that's what the statute says, isn't it, that the state has to do something to contribute to the release of whatever it is that shouldn't be released?

John G Knorr Iii: --No, not ordinarily.

Ordinarily the Superfund Act is a strict liability statute, and no one need do anything particularly to be subject to liability.

Unidentified Justice: Well, I know, but the exclusion provided under this paragraph shall not apply to any state or local government which has caused or contributed to the release or threatened release of the hazardous substance.

John G Knorr Iii: Oh, in that case, in the case of property that was acquired involuntarily--

Unidentified Justice: Exactly, which is this case, isn't it?

John G Knorr Iii: --No, it's not.

Unidentified Justice: The state, how did they get it?

John G Knorr Iii: I believe we got it through the ordinary eminent domain process.

Unidentified Justice: And is state liability premised, though, on this provision?

It is not?

John G Knorr Iii: It's only... it is not premised on the idea that we acquired the property involuntarily.

It's premised on the idea that the last clause of this very narrow amendment is somehow a general abrogation of Eleventh Amendment immunity under all circumstances.

And that's why I said that this is part... that clause is part of a very narrow provision which as a whole was intended to narrow, not to expand the liability.

Unidentified Justice: Well, before this was passed, was a state ever liable to the United States in a voluntary situation?

John G Knorr Iii: I don't know if there were any cases, but it would have been.

Unidentified Justice: But a private party couldn't... could never have sued a state because of the Eleventh Amendment.

John G Knorr Iii: That is correct.

Unidentified Justice: Because they could only sue in the federal court.

John G Knorr Iii: That is correct.

Union Gas, of course, has asked the Court again to re-examine its decision in Hans and to overrule it.

The attack comes on two grounds.

Hans, first of all, is said to have been incorrectly decided as a matter of a historical event or a historical fact.

This is something that has been explored in great detail and with great ability, primarily in the opinions of this Court in the past, and I don't know that there is anything for me to add to the detail of that historical argument.

I will say only that we submit that as a matter of history there is ample support for the holding in Hans, and it seems to me that when you have a case on which the courts and the Congress and the states have relied for a century now, a case that has become so much a part of the fabric of our law in federal-state relations, you need to do more to undercut it than simply come forward with pieces of historical evidence that could possibly have been read the other way.

In a manner of speaking, I--

Unidentified Justice: Can you point to specific instances in which the states have relied on Hans v. Louisiana?

You say there's a general understanding.

John G Knorr Iii: --Well--

Unidentified Justice: Can we really say the states have somehow relied on Hans v. Louisiana?

John G Knorr Iii: --I think they have relied on the idea that they cannot simply be subjected to suit in federal courts unless there is some abrogation of that immunity by Congress.

Unidentified Justice: Well, do you think there's any historical evidence that the states have behaved differently because Hans v. Louisiana is on the books?

John G Knorr Iii: That would be very difficult to prove.

I don't know how you would go about proving such a thing.

Unidentified Justice: Well, if that's so, would it be fair to say that the states have not, and really could not rely on Hans v. Louisiana?

John G Knorr Iii: Well, I think that any legal act, if it is affected by a legal rule that has been around for a century, can be said to rely on it.

I would say that in the same way that--

Unidentified Justice: But you can point to nothing specific?

John G Knorr Iii: --I don't know what there would be, Justice Kennedy, in the way of specific.

Unidentified Justice: Well, you could speculate about a lot of things, I suppose, couldn't you?

I could say states might not have gotten into all sorts of businesses that they are now in if they knew that they could be subjected without their own consent to civil liability, liability to private individuals.

You might speculate that.

John G Knorr Iii: I might speculate it, or I might speculate that states might not participate in a variety of federal programs if they thought that they would be liable for liability actions.

Unidentified Justice: Or you might speculate that the Seventeenth Amendment might not have been supported by the states if they knew that along with it went their inability as states to prevent the assessment of liability to private individuals.

John G Knorr Iii: I might.

As I... I'm not here to--

Unidentified Justice: We really don't know, I suppose, do we?

John G Knorr Iii: --I don't think that we do, but I think that we do know that it has been a part of our law for an awfully long time, and that the point I'm trying to make is that Hans... it there is any doubt, Hans should receive the benefit of that doubt.

Unidentified Justice: Well, one can also, I assume, presume that the state would generally obey the law, and its policy would be to obey the law.

It certainly wouldn't say I'll buy this hazardous piece of property because I know nobody can sue us whereas they might sue a private party.

I would assume they are conscious of their obligations to conform to the law, and we should presume they--

John G Knorr Iii: I think we should presume that the states try, at least, to behave in a responsible manner.

Unidentified Justice: --That they wouldn't take a course of action just because they felt they wouldn't get sued.

Well, they would be sued, I take it, by the federal government under this statute if they mismanaged hazardous property.

John G Knorr Iii: They certainly... I would assume that they would be.

They certainly could be.

It's not at all the case that states are getting a free ride under this statute.

It's perhaps relevant here to point out that there is not only the question of liability if we're sued by the federal government, but as a programmatic matter under the statute, we are required to pick up 10 percent of the costs of the federal government in all of the clean-up activities that the federal government undertakes in our state.

That's something that we have to agree to do as a condition of any federal clean-up.

So it certainly isn't the case that we're free just simply to ignore the problem.

The only final point that I would like to make is that Hans is also attacked on the grounds that it is somehow a harmful decision, that it's a pernicious influence in our law.

I think that that is very far from being the case.

I think that we've always felt in this country that one of the ways, and maybe the primary way, that you protect a free society is to diffuse governmental power among as many pieces of the government as you can, and I think that Hans, in its way, is a part of that structure.

It's a way of preserving to some degree the independence of the states from the federal government.

Unidentified Justice: Could I ask you, what was the basis for the third party claim against the state?

I mean, what provision allows such a claim, purported to allow such a claim?

John G Knorr Iii: It would be Section 9607 of the act, which provides that any... and these are all terms of art... any owner or operator of a facility from which there is a discharge of hazardous material is strictly liable for the clean-up costs.

Unidentified Justice: And that covers a suit by a, a suit by a private party against another private party who was an owner.

John G Knorr Iii: Yes.

Unidentified Justice: So that's where a private party gets the authority.

John G Knorr Iii: The private party would get the authority from the--

Unidentified Justice: Well, now, SARA said that, that amendment said that the involuntary state operator is liable if he contributes to the discharge.

John G Knorr Iii: --Or local government operator.

Unidentified Justice: Yes, all right, to the same extent as a private party, a private owner would be under 9607.

John G Knorr Iii: That's correct.

Unidentified Justice: Now, isn't that on... doesn't that on its face suggest that the state was to be suable under 9607 to the same extent as a private party?

John G Knorr Iii: It might but for the way this Court has construed similar statutes and employees and but for this Court's Atascadero decision.

I think that there is a plausible alternative explanation which is--

Unidentified Justice: Because if an involuntary state owner and subsequent discharger is liable to a private party, you would think a voluntary, a state which has voluntarily gotten into that position, would be, too.

John G Knorr Iii: --That's where it would lead you, but you are then left back with the fact that there is nothing in the original statute that justifies that reading.

That's where you... that's where that leads you.

As I was saying, I think that Hans does play its part in keeping, preserving the diffusion of government power, and I believe that it should be allowed to continue to play that part.

And unless any further questions arise from the Court, I will reserve the balance of my time for rebuttal.

Unidentified Justice: Thank you, Mr. Knorr.

I will hear now from you, Mr. Swift.

ORAL ARGUMENT OF ROBERT A. SWIFT ON BEHALF OF RESPONDENT

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

Congress's purpose in achieving a comprehensive clean-up of contamination sites in the United States will be frustrated if an important participant in the cause of that contamination, the states, cannot be sued for damages by private individuals.

In seeking affirmance of the result in the lower court, Union Gas urges this Court first to overrule Hans v. Louisiana or, absent that, to rule that Congress was authorized to, empowered and did abrogate state immunity from private suit in CERCLA.

Let me address Hans v. Louisiana first.

Hans improperly extended the Eleventh Amendment to bar causes of actions well beyond its plain meaning.

Hans was based on a pre-constitutional notion that states enjoyed sovereign immunity and that this was incorporated into the Constitution by implication.

The Constitution, after all, was a compact of the people to form a nation and create a sovereign power.

It was a system of delegated powers in which the people surrendered much of the state's power to a national government.

The Constitution assumed the existence of the states by placing prohibitions on them, but it did not grant the states substantive sovereign rights.

The Constitution itself contains no express or implied grant of sovereign immunity.

The states did, however, retain sovereignty as to matters not delegated to the federal government, but at least as regards the Commerce Clause, state sovereignty was surrendered by the people.

Essential to the constitutional framework was that the federal courts, this Court, would have the final say as to the Constitution, the federal laws, and the treaties.

Thus, Article III of the Constitution defines jurisdiction of the federal courts in categories of subject matter as well as parties.

The federal courts, on one hand, were entrusted with being the interpreters of the Constitution, laws and treaties; and secondly, with being the neutral forum for diverse parties.

Unidentified Justice: Excuse me.

The notion that the states' compliance with the Constitution has to be enforced by private suits in civil, in federal courts is no stronger, it seems to me, than the notion that the federal government's compliance with the provisions of the Constitution has to be enforced by private suits in federal courts, is it?

Is there any reason why the one is more essential to preserving the Constitution than the other?

Mr. Swift: In terms of preserving the Constitution, I think the important part is that both be subject to suit in federal court--

Unidentified Justice: But we have a doctrine of federal sovereign immunity, don't we?

Mr. Swift: --Well, yes, that's correct, we do have a doctrine, but--

Unidentified Justice: And where is, where is that writ in the Constitution?

Mr. Swift: --Well, that is implied into the Constitution because the Constitution was what created the United States as the sovereign.

It did not create states as sovereigns.

Unidentified Justice: I don't see why whether it created them would be the reason for the implication.

It seems to me the reason for the implication would be the necessity of the matter.

I don't see the necessity for suit in one case any more than the other.

Mr. Swift: It may be then, Mr. Justice, you may be leading to this, that sovereign immunity itself is an outmoded concept; it's a relic of the law.

And bear in mind... I know you're familiar with the academics and the history and the scholars in this area, but when the colonies were originally formed, most of their charters provided that they could sue and be sued in the courts.

And when the nation was formed under that Constitution, the states... the people gave up much of the rights of the states.

And certainly the language of Article III, literally read, would indicate that they understood state citizen diversity as being one grounds, and a separate ground for jurisdiction in the federal courts, as well as federal subject matter jurisdiction.

What this leads up to, and I think it's appropriate to get to, is the Chisholm case.

Chisholm presented the first test of federal court jurisdiction over an action against a state by a citizen of another state for money damages.

Now, the facts of Chisholm I know are well known to this Court.

They've been discussed in many of your decisions.

What is important about Chisholm is that jurisdiction was predicated on the state citizen diversity clause of Article III which has codified by the Judiciary Act of 1789.

I submit that Chisholm holding that the Court did have jurisdiction was a correct one.

Justice Wilson and Attorney General Randolph who participated in the case had been members of the Committee of Detail that drafted Article III of the Constitution, and jurisdiction was consistent with the literal language of Article III and that Judiciary Act.

It follows that the Eleventh Amendment adopted in 1794 which overturned Chisholm was a narrowly drawn jurisdiction preclusion clause which left untouched federal subject matter jurisdiction over the states.

If Congress had intended to grant the states sovereign immunity, certainly the last 14 words of the amendment were superfluous.

Those 14 words are remarkably congruent with the state citizen diversity clause of Article III.

Furthermore, if Congress had intended in the Eleventh Amendment to grant broad sovereign immunity to the states, then it would have restricted its own power to create private causes of action for individuals against the states.

Unidentified Justice: Is that an additional argument, that Congress would have restricted its own power to create private causes of action, is that an additional argument in support of your view of--

Mr. Swift: I believe it is, Mr. Chief Justice.

Unidentified Justice: --Well, was Congress thinking much in 1794 about creating private causes of action in which people could sue states?

Mr. Swift: Well, I don't believe Congress was because, as you know, the great expansion in Congress's power and where they enacted a lot of individual rights, came after the Civil War, after--

Unidentified Justice: So why would Congress's unwillingness to circumscribe its ability to create private causes of action against states have loomed large to any Congress that was sitting in 1794?

Mr. Swift: --Because it would have been consistent with granting substantive sovereign immunity at that time.

Unidentified Justice: But why would Congress have worried?

I mean, if they weren't thinking about creating any private causes of action against states, why would that have concerned them?

Mr. Swift: Well, I, of course, can't put myself in the shoes of Congress at that time, but certainly at that time they were very concerned about their own jurisdiction in federal subject matter cases, treaty cases, for example, and I believe Congress wanted to leave itself all the powers it needed to exercise its Article I rights.

I submit that this Court's Eleventh Amendment jurisprudence built on Hans is unstable and incoherent.

Hans' notion that state sovereign immunity is implicit in the Constitution is today assailed by an overwhelming consensus of legal scholars who believe Hans was an error of constitutional interpretation.

Hans was also based on a notion that state sovereign immunity was an essential foundation of the Constitution.

That notion today is outmoded, and a majority of the states have fully or partially dismantled sovereign immunity in their own states.

Pennsylvania is a good example.

The federal government is another example of the partial dismantlement of sovereign immunity, where individuals may bring causes of action against the federal government in federal court.

Unidentified Justice: Well, I suppose some state may have resisted doing that or been unwilling to do that if it thought it could be sued in the federal court.

Mr. Swift: Well, I'm not sure that I understand Your Honor's question.

Unidentified Justice: Well, you say states have dismantled the notion of sovereign immunity?

Mr. Swift: Many have in their own states, that's correct.

Unidentified Justice: And have they dismantled it so that they can be sued in federal court despite the Eleventh Amendment?

Mr. Swift: I don't think that whether a state chose to or not can affect their liability under federal law.

It's for Congress to make that decision and the Constitution, first, to make that decision.

Unidentified Justice: Well, what about other states?

Do states allow themselves to be sued in the state courts of other states where they have waived sovereign immunity?

I mean, it is one thing to say I'll be sued in my own courts.

I, you know, if it's my court I would feel pretty happy about it.

[Laughter]

But have the states, have the states allowed themselves to be sued in the courts of foreign states?

Mr. Swift: As a general matter, no, and that's of course the reason for having the national court system, the federal court system whereby those... there would be diversity of citizenship.

Unidentified Justice: But when a state so-called dismantles sovereign immunity, does it... has any state gone on and said well, and you may sue us in a federal court?

Mr. Swift: Not to my knowledge, Mr. Justice.

Now, to vindicate--

Unidentified Justice: And I suppose, then, and perhaps they wouldn't have been as willing to permit suit if they thought they could be sued in federal courts as well as state courts.

Mr. Swift: --Well, I submit that the Framers initially contemplated that, and certainly that's consistent both with Chisholm and the passage--

Unidentified Justice: Well, that doesn't quite answer my question, but that's all right.

I didn't quite understand your answer to Justice Scalia.

Are you suggesting that a state is not suable in the courts of another state?

Mr. Swift: --No, I'm not suggesting that.

I think--

Unidentified Justice: Because we held to the contrary on that.

Mr. Swift: --I think you have.

Now, to vindicate important principles of federalism, this Court has resorted to exceptions and fiction in its Eleventh Amendment jurisprudence.

For example, this Court allows actions for prospective injunction... injunctive relief against state officials so long as the state itself isn't sued.

Another example used by Pennsylvania: states can bootstrap this Court's jurisdiction by consenting to jurisdiction.

Also, counties and municipalities have no immunity, and also... and which we'll... I'll discuss in a moment... Congress may abrogate state sovereign immunity.

This is an exception that this Court has created to vindicate those important principles of federalism after Hans.

Unidentified Justice: May I ask you on your consent part, do you think a state could consent to diversity jurisdiction if an action was brought by a citizen of another state?

Mr. Swift: I'm not, I'm not sure I understand the question.

Unidentified Justice: Well, say a citizen of New York would like to sue the State of Pennsylvania in the federal court in Pennsylvania.

Could the State of Pennsylvania consent to that diversity jurisdiction?

Mr. Swift: I think under the Constitution there's a problem; the Constitution being a system of delegated powers, that it isn't up to a state to decide what the jurisdiction of this Court is to be.

But that is a doctrine that this Court has used as an exception.

Unidentified Justice: I know in a lot of federal question cases, but do you... but I'm just asking you, under your theory of what, of the proper construction of the Eleventh Amendment, could diverse... could the State of Pennsylvania consent to a diversity action brought by a citizen of New York?

Mr. Swift: Not under the theory that I have espoused today.

Unidentified Justice: So they could--

Mr. Swift: And it's similar, and this is an easy way of thinking of it, to the principle that parties may not by consent stipulate to federal court jurisdiction.

By overturning Hans, this Court can instill clarity and fairness in its Eleventh Amendment jurisprudence.

Congress has created numerus federal rights since Hans, rights that often can best be vindicated by private action against violators for monetary awards.

Prospective injunctive relief is frequently not enough.

In certain statutes such as CERCLA, Congress permitted individual actions against states but granted the federal courts exclusive jurisdiction, and this gets to the point that Mr. Justice White raised earlier during Pennsylvania's argument, that this is a statute that is jealous of the interpretation to be placed on it and provided that the federal system was to have exclusive jurisdiction.

So Pennsylvania cannot sue... rather, Union Gas cannot sue Pennsylvania in state court.

Unidentified Justice: --Or anybody else under this statute.

Mr. Swift: Union Gas can sue other parties... well, that's correct, not in state court in Pennsylvania.

Unidentified Justice: Exactly.

Where is the provision that provides for exclusive federal jurisdiction?

Mr. Swift: I believe it--

Unidentified Justice: Is it expressed?

Mr. Swift: --It's in 112 or 113.

I will find it for you in a moment.

Unidentified Justice: All right, that's all right, Thank you.

Mr. Swift: It's in 113(b), which is at 42 U.S.C. 9613.

Unidentified Justice: Thank you.

Is it in your brief?

Mr. Swift: Yes, It is.

In this case, it would be unfair to prevent Union Gas from recovering a monetary award against Pennsylvania which caused the release of the contamination that Union Gas has now paid to clean up.

Overturning Hans will not result in a wholesale change in the result of Eleventh Amendment decisions of this Court--

Unidentified Justice: Has Pennsylvania waived its sovereign immunity to tort suits generally?

Mr. Swift: --It has partially waived that immunity by statute.

In Pennsylvania--

Unidentified Justice: Was there any other theory nuisance, Ryland v. Fletcher type of action that this Union Gas could have relied on in this case?

Mr. Swift: --Well, not in this case because this was an action begun by the United States suing Union Gas.

Unidentified Justice: Yes, but would Union Gas have had a independent right of recovery under state law?

Mr. Swift: Not necessarily because that right may be cut off by the state sovereign immunity act.

Unidentified Justice: So the state has not waived its sovereign immunity in this instance.

Mr. Swift: That's an issue that hasn't been litigated.

I'm not prepared to concede it one way or another.

Overturning Hans won't result in a wholesale change in this Court's Eleventh Amendment jurisprudence.

A couple examples I think should suffice.

In both Atascadero and Employees, the results in those cases were changed by Congress, in both cases within a year or two after this Court found insufficient evidence of congressional intent to abrogate.

As with regard to state law claims, there probably would be no change.

Once again, so long as this Court were to continue a requirement that there be some intention stated within the act that states are among those parties that can be sued, that should be sufficient.

For example, the clarity that I would suggest would be that which this Court requires in interpreting criminal statutes because I think that if a criminal statute is clear enough to deprive someone of their own personal liberty, certainly there should be no higher standard of clarity when... in an action seeking monetary damages against the state.

Now, but assuming the continued vitality of Hans, this Court should nonetheless treat the Eleventh Amendment as a jurisdiction preclusion clause, not a blanket grant of sovereign immunity.

Congress has authority under Article I of the Constitution to abrogate the Eleventh Amendment's jurisdiction preclusion.

Congress must have the authority necessary to exercise its delegated powers under Article I.

The Eleventh Amendment, after all, places no constraint on Congress.

The only constraint is upon the judicial system.

For Congress to exercise its delegated powers, the judicial branch must have co-equal power to enforce its laws.

This was certainly the view of Chief Justice Marshall writing in Cohens v. Virginia.

Only if the Eleventh Amendment is construed as a jurisdiction preclusion clause which can be abrogated can the laws of Congress be the supreme law of the land as the Constitution declares they must.

I'd like to turn--

Unidentified Justice: If we adopted that for this purpose, why wouldn't... why wouldn't it apply for diversity purposes as well?

Suppose Congress says under the Commerce Clause we think it's important that diversity suits against a state should lie?

Mr. Swift: --Because that's directly prohibited by the Eleventh Amendment.

Unidentified Justice: Oh, but you're saying that that's just... that's not a jurisdiction preclusion clause.

Mr. Swift: I am saying the Eleventh, the Eleventh Amendment is a jurisdiction preclusion clause, that it precludes citizen state diversity cases but not the federal subject matter cases.

Unidentified Justice: Oh, no, when you said it's a preclusion clause, I thought you also meant it's a preclusion clause as to any, any suits by private individuals against the states.

Mr. Swift: No, that wasn't what I meant.

Unidentified Justice: Oh, you're not admitting that for purposes of this argument.

Mr. Swift: Absolutely not.

In fact, my view is to the contrary.

Unidentified Justice: Then I don't see what this argument... I thought you were.

Mr. Swift: CERCLA is amended--

Unidentified Justice: And I take it there's nothing that would prevent the Congress from imposing punitive damages on states?

Mr. Swift: --That's correct, within the statutory scheme, bearing in mind that the... where the states are protected is through their elected representatives in Congress.

This doesn't occur in a vacuum, and that, and I don't believe is consistent, with this Court's holdings in Garcia v. San Antonio.

Turning to the--

Unidentified Justice: Well, there... you have no evidence really that state Senators deem themselves representatives of a state as an entity as opposed to the Individual constituents?

In fact, isn't the evidence the opposite?

Mr. Swift: --Well, it's interesting you raise that.

Well, you may recall that under the Constitution as originally written and until amended in 1913, the state legislatures actually elected the Senators, so there was--

Unidentified Justice: And as Justice Scalia pointed out, when the Seventeenth Amendment abrogated that, Hans v. Louisiana was on the books.

Mr. Swift: --That's true, that's true.

But I submit that Hans was a case of a different time and political climate, certainly where the Court was very concerned about another secession by the Southern states, very concerned about the states' treasuries being emptied by virtue of the debt collection cases, and also very concerned as it spoke at the end of the Hans decision, that it's Immoral for states to change their constitutions to prohibit debt collection.

I'd like to address the statutory interpretation for a moment, if I may.

CERCLA defines persons liable under Section 107 to include states.

This is virtually the same definitional language that this Court found to be clear evidence of abrogation in Fitzpatrick v. Bitzer, and bear in mind, Fitzpatrick v. Bitzer came three years after this Court's Employees decision and two years after Congress had legislatively overturned the Employees decision.

Fitzpatrick v. Bitzer, you'll recall, involved a challenge by the states to liability for monetary damage actions under Title VII of the Civil Rights Act of 1964, and in that statute, the persons who were defined to be liable were governments and governmental agencies.

I submit that the language here which uses the word Mr. Chief Justice Rehnquist wrote about as being clear in Fitzpatrick v. Bitzer.

Unidentified Justice: Do you think the language here differs from the language in Employees--

Mr. Swift: I do.

I think it's stronger, and also Employees, bear in mind, was an amendment to an act.

This was an original act that defined states as being liable.

In Employees, we had a history under the Fair Labor Standards Act of 30 years where states were not liable, and we had amendments in 1966 which changed that, or appeared to change just the definition without changing the liability aspects.

And there is another important distinction which relates to Justice White's question, and that is under the Fair Labor Standards Act, the Department of Labor could bring suit, or private individuals could bring suit in state courts.

Here there is no such opportunity.

Union Gas can't sue Pennsylvania in state court under this act.

Unidentified Justice: --Do you rely principally on the definitional section in the amendment?

Mr. Swift: Well, I do, but it was, as you commented earlier, it was amended in SARA, and that language that you singled out, Mr. Justice, was a virtual replication of the language that the federal government used in Section 120 of the act to waive its own sovereign immunity, and if there were ever clear language, I submit this is it.

Now, Pennsylvania also commented that nowhere in this act is the Eleventh Amendment referred to.

Well, I would refer the Court--

Unidentified Justice: What do you make of, what do you make of the 9607(D)(2) which I take it was a part of this same amendment?

It says no state or local government shall be liable under this subchapter for costs or damages as a result of actions taken in response to an emergency, but it says this paragraph shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by a state or local government?

Mr. Swift: --I think that's supportive language.

Unidentified Justice: But you've never mentioned that, have you?

Mr. Swift: No.

Well, I think, I believe it was mentioned in the court below, but it wasn't one of the things that we briefed.

But I think that is supportive language that Your honor has seized upon.

But I think even more important, as Pennsylvania mentioned, there's no reference to the Eleventh Amendment in this statute.

Well, I suggest that the Court read Section 159 of the act which deals with citizen suits, and there Congress was very careful to say that people may bring citizen suits, but subject to the Eleventh Amendment.

So there is a clear distinction between Section 107(a), which is your general liability clause, and citizen suits, which were specialized suits, not by people who had spent money in a clean-up but people who wanted to sue to enforce an order of a federal agency.

Unidentified Justice: Does the section that Justice White just referred to, does that provide for liability to private individuals necessarily, that provision?

Mr. Swift: I don't believe it does refer to it.

Unidentified Justice: I mean, that liability could just be referring to liability to suit by the United States.

Mr. Swift: Well, I submit that's not how I would read the act.

Unidentified Justice: Well, I'm sure, but--

[Laughter]

Mr. Swift: But after all, Mr. Justice, this was... the name of this act was the Comprehensive Act to clean up, and this didn't occur in a vacuum.

It came after efforts by Congress, several acts which proved--

Unidentified Justice: Well, this specific provision puts the state and the local government, speaks of both of them in the same breath.

Mr. Swift: --That's right.

Unidentified Justice: And yet no one suggests that the local government is immune from suit by a private party.

Mr. Swift: That's right, but you see, the concept of the act is to have a general liability clause with an exception, such as an exception for the sites that are involuntarily acquired.

And Mr. Justice, you seized on a point earlier in asking Pennsylvania a Question that I'd like to elaborate on.

And that is they seize on this exception in the SARA amendment to the definition of owner operator as being indication that states were not intended to be subject to suit under this act.

I submit that it's illogical to suggest that they can be liable for sites that are involuntarily acquired where they then cause the contamination but they can't be sued if they buy the property next door to me and contaminate it and it runs off onto my land.

That's just an illogical interpretation of the act.

I think the logical interpretation is that there's general liability under Section 107 and that this definition provides one exception.

Unidentified Justice: Mr. Swift, I'd like to come back because I'm not sure we understood each other, to your argument saying that even if there is Eleventh Amendment immunity, Congress can eliminate it by statute.

I find that hard to understand.

Mr. Swift: Well, the argument--

Unidentified Justice: We are assuming, I think we have to be assuming for purposes of your argument that the Eleventh Amendment both eliminates diversity jurisdiction over the state's right in federal court, and eliminates, eliminates federal question suits against states.

Mr. Swift: --I don't think that necessarily follows.

I read the language of the Eleventh Amendment literally, and--

Unidentified Justice: Well, that's a separate argument.

I mean, that's the different argument.

That's the argument that we overrule Hans.

I thought this was a supplemental argument saying even if we don't overrule Hans--

Mr. Swift: --That's correct.

Unidentified Justice: --the federal government can, by statute, eliminate its effect.

Now, that argument has to assume that Hans is right.

Mr. Swift: That's correct.

Unidentified Justice: Okay.

So you're with me so far.

Mr. Swift: I'm with you.

Unidentified Justice: Now, if you can eliminate the Hans portion that you don't like by statute, why can't you eliminate the diversity portion by statute as well, under the Commerce Clause?

Congress says under the Commerce Clause, we now decide that it's a good thing to have diversity jurisdiction over states.

Mr. Swift: I don't know that I have a good answer to that, Mr. Justice.

But the point that I've harped upon is that Congress must have its core powers unfettered.

Those powers include the power under Article I, Section 8, which is the Commerce Clause, and that power... if Congress determines that in order to vindicate its power it must establish private damage remedies against parties that include states, then I submit that the constitutional scheme permits that.

Unidentified Justice: Well, I think that's an argument to the effect that Hans was decided wrong.

I don't think it's an argument to the effect that if Hans was decided right we can ignore it.

Mr. Swift: The other point I would make with regard to the statute is that within this scheme where the Congress had legislation that wasn't effectively cleaning up the contamination sites in this country, where in each of those acts it had provided for exemption for the states, the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, each gave that broad exemption.

But CERCLA, coming in 1980, did not and I submit that that is strong evidence of Congress's intention with regard to this statute.

And another strong indicia is the fact that the federal government waived its own liability, and it didn't just waive it in general terms.

It said as to the executive branch, the congressional branch and even this Court can be sued in federal court should it cause contamination.

And the concept, the overriding concept is that we all need to pull together, we all need to clean up these sites.

It's a matter of the national health and safety.

In closing, I'd like to observe that sovereign immunity is a relic that has persisted in the law despite the law's evolution.

State sovereign immunity is not required by nor implied in our Constitution.

And its persistence undermines basic tenets of federalism.

This is the first Eleventh Amendment case before this Court where there is no redress for the state's wrong unless the claim can be presented in federal court.

The means for permitting Union Gas to obtain redress is to overturn Hans v. Louisiana.

Unidentified Justice: Your time has expired, Mr. Swift.

Mr. Knorr, you have five minutes remaining.

REBUTTAL ARGUMENT OF JOHN G. KNORR, III ON BEHALF OF PETITIONER

John G Knorr Iii: Thank you, Mr. Chief Justice.

I think I can perhaps fill in a gap of Pennsylvania law here.

Pennsylvania has enacted a very limited waiver of sovereign immunity in its state courts, but as part of that same statute, expressly preserved its Eleventh Amendment immunity from suit in the federal courts.

That statute is in our reply brief, but it's codified at 42 PA Consolidated Statute, Section 8521.

Unidentified Justice: If there hadn't been the exclusive jurisdiction provision in this statute, that is, if a private party could have sued in state court, would the waiver of immunity by Pennsylvania cover that suit?

John G Knorr Iii: Well, if Congress had not given exclusive jurisdiction to the federal--

Unidentified Justice: Yes.

John G Knorr Iii: --courts, I think the federal cause of action could very likely have been brought in state courts.

Unidentified Justice: The waiver would have covered that.

John G Knorr Iii: Well, as to our own waiver of sovereign immunity, I'm not certain.

One of the areas where immunity is waived is in the damages caused by what's called a dangerous condition of real property.

I don't know for certain, but I think it's conceivable that that exception might cover this.

Unidentified Justice: But they don't exclude, they don't exclude actions against the state arising under federal statute.

John G Knorr Iii: No, not to my knowledge.

Unless there are further questions, that's all I have.

Chief Justice William H. Rehnquist: Thank you, Mr. Knorr.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Hancock v. Train - Oral Argument

Thu, 23 Aug 2012 18:28:35 +0000

Case:

Hancock v. Train

Media File:

74-220_19760113-argument.mp3

Related Transcript:

74-220_19760113-argument

Transcript:

Argument of David D. Beals

Chief Justice Warren E. Burger: We will hear arguments first this morning in Hancock, the Attorney General of Kentucky against Train the administrator of EPA.

Mr. Beals you may proceed when you are ready.

Mr. David D. Beals: Mr. Chief Justice and may it please the Court.

This case arises on a writ of certiorari to the Sixth Circuit to review that court's interpretation of the Cleaner Act Amendments of 1970 as that Act concerns the relations of the Commonwealth of Kentucky and the operator and the respondent operators of existing Federal Air Contaminants Sources located in the Commonwealth Kentucky.

With the passage of the Cleaner Act in 1970, the Congress set forth the clearly define and discernible plan for the enhancement and enforcement and protection of the air resources of the United States. Basic to this plan were minimum standards to be prescribed by the EPA administrator under Section 109.

The Congress stated the means by which these standards would be put into effect.

In Section 107, directing that the states would have implementation plans to achieve and maintain the national primary and secondary Ambient Air Quality Standards.

That these plans were state plans, is entirely consistent with the rest of the scheme of the Act.

In 101(a), one of the findings of the Congress with respect to air pollution was that it was the primary responsibility of the State to control and abate air pollution at its source.

Indeed, Section 101(b) listed as one of the purposes of the Act to assist the states and local governments in the formulation and execution of their air pollution programs.

As to what these programs should at a minimum contain, Congress was also very explicit.

In Section 110, they listed a number of requisites which had to be included in any one county implementation plan.

Among these the basic requirement of the plans was that the plan provide for the attainment of the primary standards as expeditiously as possible and in no case, more than three years following approval.

Also required in 110 were provisions for emission limitations, schedules, timetables for compliance and such other measures as might be deemed necessary to meet these standards.

But in addition to these emission standards, 110 also specified that the states had to incorporate into their plan, appropriate devices, methods and systems for monitoring, compiling and analyzing data and making this data available to the administrator, appropriate procedures and systems for reviewing the location and new sources, appropriate procedures to ensure that no emission in one air quality region would cause or interfere with the attainment of the standards and in the other air quality region.

It also called for adequate personnel spending and authority on behalf of the state to carry out the plan.

It required that the plan have authority to require the installation and monitoring equipment to require periodic reports from air contaminant sources, to correlate this data received from these reports to the emission standards that were currently existing and required authorization to restrain any air pollutant source which was presenting an eminent and substantial danger to health.

The contention of the common law of the Kentucky that these requirements, all of the requirements listed in 110, all the requirements which are contained in the states implementation plan are requirements respecting the control and abatement of air pollution.

Justice Harry A. Blackmun: Mr. Beals, do you envisage situations where the state would not grant a Federal installation of permit?

Mr. David D. Beals: Yes, Mr. Chief Justice, I envision a situation where if the control strategy proposed by a Federal source will in the opinion of the State Air Pollution Control Agency not result in the attainment of the ambient standards, will not result in the meeting of the admitting standards that that Federal source would have to redraft its control strategy, its compliance schedule so that it would indeed meet these standards as required by the act.

Justice Harry A. Blackmun: So you would stop at the permit stage rather than later?

Mr. David D. Beals: At the permit stage, these things can be worked out.

We say your strategy is not sufficiently stringent to meet our standards.

Your emissions are too high to maintain the air quality required.

Therefore you have to incorporate more standards.

This is as opposed to later finding that they are indeed in violation of the standards and presumably shutting down, that is a possibility, highly, unlikely that any of the agencies would be indeed shut down by they would be subject to daily --

Justice Harry A. Blackmun: So you are zeroing in on something more than merely identification on the source of pollution?

Mr. David D. Beals: We are indeed Your Honor --

Justice Harry A. Blackmun: At the permit stage?

Mr. David D. Beals: The implementation plan as expressed by Congress contains considerably more than just identification of the sources of pollution and it contains considerably more than simply emission standards.

It contains the entire mechanism for bringing these standards into being for --

Justice Harry A. Blackmun: Of course you could do that by a compulsion suit later, could you not after the permit is issued?

Mr. David D. Beals: That would hardly be prevention Your Honor.

We might be able to abate any violations that came up later.

But it would hardly relate to any sort of preventive concept, since the time for prevention is before the attainment dates.

What we are talking about is a pre-attainment period seeing to it that these control strategies are moving into proper direction, that the strategies will indeed result in reduced emissions, will indeed result in the air quality of the entire Air Quality Control Region being raised to a level expectable under the minimum standards, minimum primary and secondary standards.

Chief Justice Warren E. Burger: Is it not the environmental agency state that it would submit all of the information which is called for about the application but would not submit it in the form of an application for reasons which were given.

Now, does that not give you everything that the application would give you?

Mr. David D. Beals: Yes Mr. Chief Justice, that gives everything that the application would give you but it does not give you what the permit requires.

The application for permit is not an automatic issue in some department.

Unknown Speaker: Well, as Mr. Justice Blackmun’s suggestion why not wait until you have the problem and then go in on the enforcement where the environmental agency raises no question.

Mr. David D. Beals: Once again Your Honor, the ambient standards are interfered with the attainment and likeness of the ambient standards are interfered with if we --

Chief Justice Warren E. Burger: Well, cannot you not tell them that when they submit the data that they have offered?

Mr. David D. Beals: But the data they offer is just a status report.

That is a listing --

Chief Justice Warren E. Burger: Everything you get in an application?

Mr. David D. Beals: Yes but the process does not stop at the application.

The process goes on.

We use the information that we get from the application to determine what sort of controls are necessary, to determine what kind of emission standards are necessary to be imposed.

This does not stop with just getting the information and finding out where we are and waiting until three years later to see if we got any better.

Chief Justice Warren E. Burger: Do you say if you really had the authority to require permit you could say no to an application, whereas if you do not have the authority require permit, all you can do is kind of file what they are doing and not say no?

Mr. David D. Beals: That is correct.

That is what we can do right now.

That is what we have been doing for the last three years.

Chief Justice Warren E. Burger: But if you read the government’s brief, you get the impression that the government installations will fully comply with the substantive requirements and presumably EPA and that is what is regulating the government’s installations would be saying no in place of the State agency.

Mr. David D. Beals: That would have been fine, if the administrator had come in 1972 under 313 when the implementation plan broke down when they refused to comply with the implementation plan, what the installations, what the respondents have done so far is when requested not on the basis of a periodic report, when requested they have submitted a status report.

This is not similar to a compliance schedule.

The respondents are not operating under any approved compliance schedules because the compliance schedule is the end result of the process that starts with the permit application.

The position of the government that they are to comply with compliance schedules and emission standards is generally hard for me to follow since there are no compliance schedules.

Chief Justice Warren E. Burger: The compliance schedule originates at the time, the permit is issued?

Mr. David D. Beals: That is correct Your Honor.

The way the Kentucky permit system functions, the information is received on the applications.

That information is analyzed to see what steps are necessary to bring the source into compliance.

If the source is already in compliance, then a permit may be issued.

If a source is not in compliance then no permit will be issued until a compliance schedule which will bring the source into compliance within the attainment days has been agreed to by the source.

Justice Thurgood Marshall: Mr. Beals, that is the information the government did furnish you was that acceptable or rejected?

Mr. David D. Beals: It was taken as what it was.

The original --

Justice Thurgood Marshall: Well, that has not been in the form of an application would have permit, when you grant it or not.

Mr. David D. Beals: In some cases perhaps it would have been.

In most cases --

Justice Thurgood Marshall: What about in this case?

Mr. David D. Beals: Well, this case deals with quite a number of different respondents.

Justice Thurgood Marshall: With any (inaudible)?

Mr. David D. Beals: Some of them may have gotten the permit.

Some of them --

Justice Thurgood Marshall: Well, do you have a complaint on those?

Mr. David D. Beals: The complaint?

I do not understand the question Your Honor.

Justice Thurgood Marshall: Well, I mean you just want the formality of asking for permit?

Mr. David D. Beals: No, we want the cooperation.

Justice Thurgood Marshall: How about those that did meet the standards?

The only thing the objective of the government did also say we want a permit, is that right?

Mr. David D. Beals: Well, they did not apply for a permit.

Justice Thurgood Marshall: But they give you all the information that they would have given, if it applied for permit?

Mr. David D. Beals: Only those few sources and I am not sure how many of them, there are which would be in compliance.

In fact, the information only application is just the preliminary information through which the analysis could start.

It would still require some further information, further cooperation by the respondents.

As to those sources which would not be in -- we have asked for the further information.

We get status reports.

Justice Thurgood Marshall: I thought all you asked for was that did they applied for permit.

Mr. David D. Beals: In asking that they applied for a permit, we are asking that they submit to our entire implementation plan system.

Justice Thurgood Marshall: But I thought you just wanted to go through the formality in some instances?

Mr. David D. Beals: Well, in the instances where they are already in compliance, I agree if they applied for permit, they would be granted a permit.

But those are a very few and far between sources which are already in compliance.

They have already met all of the emission standards.

In addition, the information that we gather from these applications are necessary in order to determine at what level the emission standard should be set.

It is not just an automatic process that they apply for a permit, they get a permit.

What they have to do is go through the permit process.

The determination is made but whether or not these strategies will bring them into compliance with the ambient standards, they will be in compliance with the emission standards which are set through the information.

The air quality control region is analyzed to determine what sources are there, what levels of control need to be placed on these sources.

Only through this process, can the emission standards be set.

Now, the fact that the initial information was put in is just the very first step in the whole permit process.

There is a considerable amount of planning required in determining how to bring a plant such as the Shawnee Power Plant of the Tennessee Valley Authority into compliance with the emission standards within three years.

In fact, it has not been done under the system that the government suggests where the only standards which they have to meet are the emission standards and compliance schedules.

This is very similar to the method of implementation that was considered in Train, they discussed the Florida method where we just told in three years you have to be in compliance.

And that was it.

This method was discouraged by EPA.

This is the method we have.

We say, we are turning it loose but in three years, you have to be there.

The state suggests that this is a regulatory statute that the state has some expertise in determining what their air quality control regions require in terms of emission standards.

In developing these emission standards for the particular areas, the Louisville, for instance, the Louisville Air Control Region has considerably more stringent standards than the Bowling Green air control region.

This is developed through a complete control over each stationary source in the commonwealth.

We have to analyze the data from each of these sources in order to make the standards for all.

For the Section 118 --

Chief Justice Warren E. Burger: (Inaudible) at least for me fully answered the questions of Justice Blackmun or Justice Marshall or the ones I was trying to put.

If the environmental agency is prepared to have the Federal facility to everything that it would do except the formality of the application and that you are free to respond in the same way to that issue would be to a formal application in terms of setting up the schedule, then what are we really here for?

Mr. David D. Beals: We are here for the fact that they have not than that.

Chief Justice Warren E. Burger: Well have you responded to the informal approach just the way you would to a formal application?

Mr. David D. Beals: Perhaps not but we have not had the same information.

Chief Justice Warren E. Burger: That is the starting point.

Mr. David D. Beals: Well, the informal approach nonetheless is totally unrelated to our implementation plan.

The Congress said that we have to have this authority.

They said that this is essential to achieving thee plans and what these respondents have declared is that none of these are the things are essential to achieving these standards except the emission standards.

No other way to compliance schedules come into being.

They have not, as I say, we have not gotten control strategies from these sources.

We get status reports which they say, right now we are putting out this much emission.

We are installing this sort of equipment.

There is no opportunity or review to control strategies.

There is no opportunity review to control strategies in light of the rest of the air quality control region.

Unknown Speaker: Mr. Beals, may I ask you a question?

Is there anything in the statute that provides in substance that if a point source is in compliance with the standards, emitting the wrong kind of material but does not have a permit that it is in violation of the Federal statute, does the Federal statute require a permit and provide that the failure to have a permit, there is some kind of remedy for that even though there is compliance with the substantive standards.

Mr. David D. Beals: Not specifically Your Honor.

The Federal statute requires that the states draw an implementation plan containing a certain set of authorities.

Now, the majority of substantial majority of the states have adapted a permit system in order to accomplish this.

The permit system integrates all the requirements of 110.

It integrates all the control necessary.

Unknown Speaker: That is purely a state requirement, the permit itself.

Mr. David D. Beals: Well, it has been approved.

Unknown Speaker: It is a state technique for implementing Section 110.

Mr. David D. Beals: Well, yes, but it has been approved by the Federal EPA.

It has been published as regulations of the Federal EPA.

In effect, the Kentucky implementation plan is the Federal implementation plan for the Commonwealth of Kentucky.

Unknown Speaker: Well, the reason I asked, I was wondering what would happen if the Federal point source were in compliance with the substantive standards and simply refuse to get a permit.

What Federal statutory remedy would there be that Kentucky could assert against the Federal point source?

Mr. David D. Beals: The Federal statutory authority?

Unknown Speaker: Yes.

Mr. David D. Beals: I take it, that there would be not.

Unknown Speaker: So there really have been –-

Mr. David D. Beals: However, if Section 118 clearly makes that is the Federal Statutory Authority which makes all state and Federal requirements respecting control and abatement of air pollution applicable to each of these Federal respondents.

In that regard what we adapt as a requirement respecting control and abatement under Section 110 which is republished as a Federal requirement respecting control and abatement of air pollution by the Federal EPA.

We would think that those would be Federal requirements that are –-

Unknown Speaker: Well, that is the remedy that you pursued this litigation is it not?

That is the remedy.

That is a remedy.

That is the reason this case is here.

You began a lawsuit asking for a declaratory judgment and an injunction.

Mr. David D. Beals: That is correct.

Unknown Speaker: That is a remedy to enforce your permit system, is it not?

Mr. David D. Beals: That is exactly.

Yes, we are preceding under 118.

We are saying that there is a Federal duty under Section 118.

Unknown Speaker: Then what you really want is some kind of reports other than the status report?

Mr. David D. Beals: Well, the point where you –-

Unknown Speaker: Why do you not go up to those instead of going out with permit?

Mr. David D. Beals: Because the permit will give us everything. The permit will get us –-

Unknown Speaker: Or you just want to show up with?

Mr. David D. Beals: Administratively, it is practically impossible to go after each requirement of the permit system individually.

We would have to go after emergency, episode regulations separately.

We would have to go after monitoring separately --

Unknown Speaker: Could you not file the same suit to require them to file these reports?

Mr. David D. Beals: Well, other than the proliferation of Federal District Court suits that that would bring on.

That just is not what we consider the plan, that the Congress had for the enforcement of the standards.

That puts us in Federal District Courts suing every two weeks, if the periodic report does not come in on time, we have to follow another suit to get the same information again.

Chief Justice Warren E. Burger: Has the Congressional program broken down in the states that do not have a permit procedure?

Mr. David D. Beals: It has indeed Your Honor.

The implementation plan –-

Chief Justice Warren E. Burger: Where do we find that in the record?

Mr. David D. Beals: I find that in the record by the fact that none of the respondents herein are committed to compliance schedules.

You will find that in the record in May of 1975, a month-and-a-half before the attainment dates.

The EPA is just then trying to find out whether anybody is in compliance.

In a publication, in a Federal register, the EPA has put out their guidelines to make a firm public commitment, to abate air pollution from Federal sources.

This is exactly the same thing that the implementation plan require the state to do in 1972 which the Commonwealth of Kentucky did do and had that system been allowed to function as it should as not only as Kentucky law but as a Federal regulation for Kentucky.

Then, the same thing that the administrator is trying to do in 1975 would have been doing in 1972 we would be much closer meeting the standards.

Unknown Speaker: Mr. Beals, let us just go down the road away, assume that you prevail in this lawsuit and the Federal government is required to apply for a permit and after all the negotiations and all of the good faith have been exhausted, let us assume the appropriate Kentucky authorities conclude that the -- let us take Fort Knox is not in compliance with the standards.

What do you then, do you try to get an injunction to close down Fort Knox?

Mr. David D. Beals: Well, that would be the direction of the Clean Air Act that is what they say that we should do.

Unknown Speaker: What section of the Act suggests that Congress intended to allow any state to close down Fort Knox?

Mr. David D. Beals: Well, no section suggests that we should be allowed to close down Fort Knox.

However, as in terms, as far as the Air Pollution Control measures taken by Fort Knox, we should be allowed to review them.

The citizens of the Commonwealth of Kentucky are breathing air, we have the Air Quality Control Regions and there is no reason why under the Federal Act, and under the direction of 118 which declares that they shall comply with requirements respecting that they cannot produce a compliance schedule.

Unknown Speaker: This is a national statute we are talking about.

Consider the example of Tennessee Valley Authority which operates in several states in addition to Kentucky, it is at Tennessee and Alabama, perhaps others.

If Kentucky undertook to shutdown a part of TVA, of the Tennessee Value Authority, would that have any impact on its operation in other states?

Mr. David D. Beals: Well, I take that it would but the possibility of shutting down EPA and TVA all together is very, very remote.

We would be going after penalties in terms of -- as a matter of fact, the state of Alabama has recently filed suit against the Tennessee Value Authority for exactly, for violating the emission standards under the their implementation plan.

In that case, they are seeking substantial penalties until the sources brought in to compliance.

Unknown Speaker: It is not like what presumed.

What I am asking you is it the purpose of the lawsuit to shutdown the entire operation of the TVA?

Mr. David D. Beals: It is not just the purpose.

It is the purpose of that lawsuit to compel TVA to bring their source into compliance with the air pollution control requirements.

Unknown Speaker: That is quite similarity, as it would be against any utility company?

Mr. David D. Beals: That is correct, just exactly as it would be against any other utility company.

Unknown Speaker: And certainly Congress contemplated that, is it not?

When it said that the Federal installation should be subject to the least of the substantive requirements of the state program?

Mr. David D. Beals: But the Congress did not contemplate that they would be subject only to the substantive --

Unknown Speaker: But Congress contemplated at least that.

Mr. David D. Beals: At least that --

Unknown Speaker: That the TVA and Fort Knox would be subject to the substantive requirements of the state program?

Mr. David D. Beals: That is correct Your Honor.

But as it comes in, they are not subject to the means of reaching those ends that every other public utility in the Commonwealth of Kentucky has to go through.

They have to come in with a compliance schedule which is approvable by the state which will get them to that point other than to just say that three years from now, we are going to be subject to these things, to these penalties, so we are going to meet the standards.

This is a regulatory statute.

We plan to get the source into compliance.

It is not a question of saying in three years; you are going to have to be responsible to meet these standards I hope you make it.

That is not what the state does.

The state comes in and they plan it.

They see to it.

They say your plan is not adequate.

Then TVA says we will do this.

The state then says well okay that is fine.

Unknown Speaker: And so far as you know is EPA undertaking any parallel monitoring of Federal facilities to see that they come into compliance with the state requirement?

Mr. David D. Beals: In 1975, a month-and-a-half before the attainment dates, the Federal EPA was trying to determine the compliance status of Federal sources and to get them to enter consent agreements, if they were not in compliance, consent agreements which are exactly identical in every respect to what a compliance schedule would have been.

Unknown Speaker: Well do you say if they have been subjected to the permit program you would have had those on in 72 and not 75?

Mr. David D. Beals: That is correct.

The fact that the attainment dates and in addition to that the Federal administrator is talking about bringing the sources into compliances expeditiously as practical.

We were talking about bringing them in three years.

We were talking about trying to arrange it so that they would be in compliance at the end of a three-year period.

EPA apparently is still not talking about that.

I would like to reserve what time I have remaining for rebuttal.

Chief Justice Warren E. Burger: Mr. Friedman?

Argument of Friedman

Mr. Friedman: Mr. Chief Justice and may it please the Court.

I would like at the outset to advert to the question that Mr. Justice Rehnquist just put to my opponent, what if anything the Environmental Protection Agency is doing to ensure compliance by Federal facilities with state pollution standards.

It is doing a great deal.

It has its own office called the Office of Federal Activities whose sole function is to ensure that Federal facilities do come in to compliance.

The record contains numerous items of evidence showing that the various Federal facilities in the Commonwealth of the Kentucky have supplied a great deal of information, a great deal of data have worked closely with the state authorities to ensure that as quickly as possible the Federal facilities do come in to compliance with the state emission standards, that is what we are talking about the substantive standards that the state has imposed in implementing the Federal plan --

Justice William H. Rehnquist: Can it be candidly said Mr. Friedman that the EPA is treating the Federal facilities just as the Kentucky Agency would be treating private facilities?

Mr. Friedman: I think it can.

We endeavored to do that and indeed there is document in the record of direction from the regional administrator which instructs all the Federal facilities to work closely, to cooperate with the state authorities and to submit to them their own plans, their own schedules.

There is a great deal of informal discussion and communication.

I mean, the compliance standard for major installation; it is not a simple thing.

It is very complicated.

There are all sorts of standards.

They are problems about the technology available.

It is not something unfortunately that can be done very quickly.

It does take time but the Federal facilities are moving as rapidly as possible to try to accomplish this.

And this is we think precisely what Congress intended in Section 118 of the Act when it said that the Federal facilities are to comply with state and local requirements with respect to the emission of the pollutants.

The question in the case basically is whether when Congress used that word “requirements” in there, it intended also to subject the Federal instrumentalities to the various procedures that the state might work out in order to accomplish compliance within the state with these various requirements.

Chief Justice Warren E. Burger: And those as possible that each of the states has its own, it is likely that each have their own schedules and own notions about how the compliance can be accomplished so that there will be no uniformity applicable to all Federal installations, is that the way?

Mr. Friedman: That is correct Mr. Chief Justice because now all states have permit.

Some call them permits.

Some call them registration, there is a wide variety in the plan.

But I think it is essential and I think this has been brought out in the colloquy with my opponent as to what we really are talking about here.

What the state is saying is it wants the authority to control the way in which the Federal instrumentalities are operating within the Commonwealth of Kentucky.

What the state permit regulation provides is that you must have a permit in order construct, use, operate or maintain an air contaminant facility.

And I think it was brought out very clearly that if the state believes that Fort Knox is not complying with its standards, it can shutdown Fort Knox.

I think this whole concept that the state somehow has a veto power over the operation of Federal facilities runs and flies in the face of the jurisprudence of this Court for more than 150 years, that ordinarily unless there is a clear indication that Congress intended to do so, that these Federal facilities are not subject to control by the states and that the states cannot require Federal facilities to obtain a permit.

Unknown Speaker: Well, everybody agrees with that Mr. Friedman, I think we do not need to go into that.

The question of this case is the meaning of Section 118.

Mr. Friedman: And whether in 118 Congress has –

Unknown Speaker: Precisely!

Mr. Friedman: -- precisely and clearly indicated that the Federal facilities are -- but I think in determining, I think Mr. Justice in determining whether 118 has that effect, it is important to keep in mind this broad back --

Unknown Speaker: But if does not have that effect then you win.

Mr. Friedman: That is correct.

Unknown Speaker: And if it does, you lose.

Mr. Friedman: That is the thing but our submission is that before one can conclude the Congress intended to subject the Federal facilities to this kind of state control there has to be some clear indication that Congress did so.

And our submission is there is nothing in this statute that indicates that Congress intended to subject the Federal facilities to state permit requirements.

My opponent has considered there is nothing explicit.

And when one looks at the legislative history --

Unknown Speaker: He concedes what in this agreement?

Mr. Friedman: I thought as I understood it --

Unknown Speaker: He says the plain meaning of the language is very explicit as I understood it.

That is quite a lot for him to claim.

He says the statute on its face covers it.

Mr. Friedman: Well, but he has conceded.

He has conceded Mr. Justice --

Unknown Speaker: No, he concedes there is nothing else maybe?

Mr. Friedman: No he is conceded there is nothing in the statute that explicitly refers to permits.

Unknown Speaker: There is nothing in the statute that refers to substantive requirements either.

Mr. Friedman: It says it used the word “requirements.”

Unknown Speaker: Well it does not say substantive.

Mr. Friedman: It does not say substantive but --

Unknown Speaker: It does not say procedural.

Mr. Friedman: It does not.

Unknown Speaker: so which one would you like to leave out?

Mr. Friedman: Well, it is not, with all due respect Mr. Justice it is not a question of leaving it out.

Unknown Speaker: Well which one would you think that would be included?

Mr. Friedman: We think it means only substantive.

We think it means only substantive and we think that is.

Unknown Speaker: But why?

Mr. Friedman: Because that is precisely we think what the legislative history of this statute shows that what Congress is intending to do in this statute.

Unknown Speaker: But if it means only substantive requirements then is it not EPA under a duty to enforce just as rigorously against the Federal facilities, the state's substantive requirements so that Fort Knox will be shutdown if it does not comply?

The only question is whether it will be shutdown by the Kentucky Commission or by the EPA.

Mr. Friedman: Well, I do not think that the shutting down –- I agree that the Federal administration is required to enforce the standards just as rigorously as the state is doing.

That is precisely what we do but the question of shutting down Fort Knox it seems to me is not a substantive standard and I would think that that is a matter for the Federal authorities to decide if they feel it is necessary to shut down Fort Knox because it is not complying with the pollution requirement.

Unknown Speaker: Well, then you are talking about a good deal more than just a permit requirement.

You are talking about the remedies that may be imposed for failure to comply with the substantive standard?

Mr. Friedman: But the remedies Mr. Justice, the remedies are themselves tied into permit requirement because if you have a state permit requirement then you cannot operate unless you have obtained the permit.

Now it seems to me that is a very different kind of think than the situation where there is an obligation on the Federal facilities to comply with the state substantive standards but if there is non-compliance, there are two remedies available either the state can sue as the state of Alabama is suing TVA or alternatively the Federal authorities can take whatever steps are necessary to bring the state, the Federal facilities in the state into compliance.

Unknown Speaker: But you say that even though the state commission dealing with says the Kentucky Power Company.

If it were doing the same thing could order the facility shut down if it have not complied in 90 days.

The EPA given precisely the same situation with respect to the Power Plant at Fort Knox can say, try to come around as a matter of committee in five years.

Mr. Friedman: Well it does not say Mr. Justice with all due respect to try to come around within five years.

They tell them that they have to comply and they are taking every step possible to comply as rapidly as possible.

Unknown Speaker: This is before us now?

Is any remedy issue before us now or is it only the application question before?

Mr. Friedman: Well, the only question really is whether the state can require the Federal facility to obtain a permit.

Chief Justice Warren E. Burger: So it would be another case and another day when we have to deal with the question of whether they can close Fort Knox?

Mr. Friedman: Yes, and I would hope that it would never come to that but the state apparently claims the power.

That is the thing.

Under the argument that it can apply its permits to the Federal facilities the state would claim the power.

Unknown Speaker: Well, of course the President of the United States has the – You have that escape clause --

Mr. Friedman: There is in an escape clause but it has been interpreted rather narrowly because it says in the paramount interest of the United States.

Unknown Speaker: And I would suppose the President can interpret it and make a finding that it is in the paramount interest of the United States --

Mr. Friedman: Not close.

Unknown Speaker: To keep Fort Knox open.

Mr. Friedman: Yes, but it is not just that.

It is a lot of other things in connection with the permit, the way in which the Federal facility operates.

For example, one of the facilities involved in this case is the AECs gases diffusion plant which enriches uranium.

Now, I suspect there is probably a fair amount of pollution involved in that and steps are being taken but the notion that the State Commonwealth of Kentucky can in effect say to the Atomic Energy Commission unless you do not operate this plant the way we want you to, you will not get a permit and threaten them with closing down.

It seems to me that before one could find that Congress intended to give the states that kind of power there have to be some very clear indication of it.

Unknown Speaker: Mr. Friedman, can I be sure, I understand your position?

Assume a facility does not comply with the substantive requirements forgetting the procedure and the permits for the moment --

Mr. Friedman: Yes.

Unknown Speaker: -- And assume the president has not made an exception, would you not agree that the state could then close a facility down?

Mr. Friedman: I would not think it could close it down Mr. Justice. It could bring a lawsuit under Section 304 --

Unknown Speaker: Well then, and would the lawsuit not have merit?

Mr. Friedman: I would think so and I would think --

Unknown Speaker: Of course, the Court would have to decide.

But what would be the defense be to such a suit?

Mr. Friedman: I do not know.

Unknown Speaker: If you assume a violation of the substantive requirement?

Mr. Friedman: If one assumes that I would think the Court would order them to comply and if they fail to comply, the court has whatever sanctions are available to compel compliance.

I would assume that once a court tell the Federal facility that it was not in compliance in order for it to comply it would comply.

One must assume that I think.

Unknown Speaker: We do not have any question that we have to comply with the standards.

Now, what does the legislative history show about what Congress intended in Section 118?

Mr. Friedman: The original Bill that was passed by the House directed that Federal facilities would have comply with local emissions standards.

And the House Committee report on the Bill said the same thing that would direct the Federal facilities to comply with local emission standards.

Now, if that is all that you had, there could be not much question.

We think that clients with local emission standards means that and does not mean complying with permit standards.

The Senate Bill use different language.

It said it should comply with the requirements in this Act in the same manner as any other person should comply but the significant thing to us is that the Senate Committee in reporting this Bill saw no difference apparently between the word 'requirements' in this Bill and a emission standards in the House Bill because it said that the purpose of this section using the words “requirements” was to acquire Federal facilities to meet the emissions standards necessary to achieve ambient air quality standards as well as those established in other sections of Title 1.

Now, when the conference committee came along and adapted the language now in the Bill to comply with their requirements to the same extent as every other person what it said is that the language it was using required that the government comply with requirements respecting control of air pollution that it said, this House Bill and the Senate Amendment declared that the Federal departments and agencies should comply with applicable standards of air quality and emission standards, standards of air quality and emission.

Now if the conference committee believed that in using the word of the Senate Bill “requirements” rather than using the word “emission standards” of the House Bill that it would somehow changing the standard.

It seems to us, most extraordinarily that it did not indicate that to the contrary what it indicated is that it view the same the two phrases as meeting the same thing.

And this is I think particularly brought out by the fact that the very next sentence in the conference report points out that in one respect, it was changing the bills.

What it said was the conference substitute modifies the house provision to require that the President rather than the administrator of EPA be responsible for assuring compliance by Federal Agencies.

Now, it pointed out the change it was making and saying that it was to be the president rather than the administrator of EPA who is responsible for ensuring Federal compliance by Federal agencies but yet it treated the word emission standards and requirements in the two versions of the legislations as meaning the same thing and the same thing it said it meant was standards of air quality and emission.

Moreover, it seems to us would be most extraordinary we think, that after the conference committee said that it was giving the president, responsibility for ensuring compliance with the standards of air quality emissions that it then would have turned around and expected that the president would have to comply with state permit provisions.

Now we have set out at length in our brief a number of respects in which we think the word “requirements” in the statute reflects a congressional intention to cover only the substantive standards and not the procedural ones.

Many of them are rather detailed in technical and not particularly appropriate for oral presentation.

But let me just refer to one particular provision, which I think dramatizes it very clearly that is in Section 110(E) 1(a) and it provides that after the state has approved the plan for compliance.

If a particular emission source is unable to achieve compliance with the deadlines because of technological problems that period for compliance may be extended.

Now, there the requirements with which they can extend the time for compliance because of technological problems, obviously refers to the substantive standards the problems that because of the lack of technology, they are not able to control particular emissions.

It cannot refer in any meaningful sense of the term to any technological problems with respect to seeking a permit.

And if what Congress was attempting to do in that provision was to reach the permit thing.

It seemed to me, it would not have put it in those terms.

Now we have a final point which this Court relied on in its Train opinion last year which is that the administrator of the Environmental Protection Agency, who is the person charged with enforcing this statute has interpreted it as not applying to Federal facilities.

He did it in a 1972 Ruling and a 1973 Ruling.

I should mention that the 1972 Ruling which is embodied in a letter from the regional administrator of EPA in the region involved here at page 57 of the Appendix points out the importance of the Federal instrumentalities submitting their compliance schedules.

It is not just the substantive standards the Federal Instrumentalities are to meet the state compliance standards.

One final point --

Unknown Speaker: The administrator is a party to this litigation, is it not?

Mr. Friedman: Yes, he is a party but he is also a party in the Train case Mr. Justice in which this Court placed considerable reliance on his interpretation.

And indeed, in most litigation which this Court has applied the principle of giving weight to the administrative determinate --

Unknown Speaker: Why does --

Mr. Friedman: It usually is suit to challenge the --

Unknown Speaker: (Inaudible) since the ordinary party does not have?

Mr. Friedman: Well, the ordinary party however does not have the expertise of the administration.

There has been a great deal of discussion here by the Commonwealth as to the importance of the desirability of requiring the Federal instrumentalities to obtain permits.

If this is the most effective way, in which one can assure compliance, that it seems to us is a matter for the Congress to consider because we think that the statute as it is written, its language, its structure, its legislative history rather clearly indicates that Congress did not intend to subject the Federal facilities to state permit requirements.

If that is to be changed, we think it is for Congress to change it and rather significantly there is now pending before the Congress a rather lengthy bill which would revise the Clean Air Act in many, many particulars.

And one provision of that Bill would provide that from now on if this bill is passed Federal facilities would be required to obtain permits from states if the state so required.

That we think is the way in which if Federal facilities are to obtain permits that Congress should make its intention clear and explicit.

Unknown Speaker: Mr. Friedman, before you sit down, would you say it is a fair summary of the legislative history to say that it does not indicate that anybody actually thought of the precise problem that this case would have?

Mr. Friedman: I think that is a fair summary but then our answer is that in this kind of situation unless Congress clearly intended to permit this kind of state authority it should not be implied.

It is the kind of authority we think that has to be provided explicitly.

Thank You.

Chief Justice Warren E. Burger: Thank You gentlemen.

The case is submitted.

Attribution:

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Featured:

Epa v. State Water Resources Control Board - Oral Argument

Thu, 23 Aug 2012 18:28:12 +0000

Case:

Epa v. State Water Resources Control Board

Media File:

74-1435_19760113-argument.mp3

Related Transcript:

74-1435_19760113-argument

Transcript:

Argument of Friedman

Chief Justice Warren E. Burger: We will hear argument next in 1435, the Environmental Protection Agency against California and others.

Mr. Friedman, you may proceed whenever you are ready.

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

This case which is here on a writ of certiorari to the Court of Appeals for the Ninth Circuit presents the same issue as the last case with respect to the need of federal instrumentalities to obtain state permits, except it arises under the 1972 Amendments to the Federal Water Pollution Control Act.

The operative language is the same except for the addition of six words that I will come to later.

Section 313 of the Water Act like Section 118 of the Air Act requires that federal instrumentalities comply with the state requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements.

Because of some differences between the statutes however, I would like briefly to outline to the Court, the regulatory scheme under the Water Act.

Prior to 1972, the Federal program for the control of water pollution was based mainly upon the development by the States of what are called water quality standards.

That is a general standard as to the level of pollutants that would be permissible within water and the Federal enforcement role was rather limited.

The 1972 Amendments marked a dramatic shift in the emphasis and the method by which water pollution was to be controlled.

Instead of stressing primarily the quality of the water generally, the Act decided to deal with what is called point source pollution, the specific individual, the specific firm that is polluting and the focus was on what I call technology-based limitations.

That is trying to devise the best technology possible in order to reduce the pollutants that each particular point source makes.

And this particular technique, the control of the point source pollutants was to be accomplished through a permit system.

So that this case is unlike the other case and that, in the other case there was no reference at all to anything about permits.

In this case there is an explicit scheme for permits.

Now, what the statute does is it requires that the Environmental Protection Agency to develop nationwide standards, standards for effluent limitations for point source pollutants in various industries, it is on industry by industry basis and for example, they might have a standard that for cement plant, the cement plant cannot discharge more than a certain amount of phosphate for each hundred tons of cement produced.

It is that kind of thing to determine the maximum permissible pollutants from each particular source.

And it is made illegal under Section 301 of the act for any person to discharge pollutants into any navigable waters except in compliance with the effluent limitations that the Federal Agency has developed for the particular sources except in compliance with the general water quality standards that the Federal Government and the States have developed and except in compliance with the permit provisions of Section 402 which has created something called the National Pollutant Discharge Elimination System.

And under that system, EPA has undertaken decisions required to issue permits to an individual discharges as long as those discharges meet the standards it has provided for effluent dischargers.

And to date, it is issued more than 30,000 of these permits.

That is, the Federal agency has issued more than 30,000 of these permits.

The Act further provides however that a State may itself submit a plan under which it will issue permits and if the State’s permit plan needs a large variety of specified conditions in the statute as well as meeting the general standards then the administrator of the EPA is directed to approve it and once he approves it that under the statute automatically terminates his authority to continue to issue permits.

And, thus far the administrator of the EPA has approved 27 different state plans for state issuance of permits.

The EPA has issued rather detailed regulations governing the state to permit plans.

And one of those regulations which is at issue in this case is that plans that he approves for State permit programs do not cover agencies and instrumentalities of the Federal Government.

This case arose out of these facts.

The States of California and Washington submitted to the EPA their plans for a programed permit.

EPA approved those plans but indicated in each instance that the plan did not cover permits for federal facilities and that the administrator would therefore continue to issue permits for federal facilities.

In accordance with the provisions of the statute the States then took this ruling to the Court of Appeals for the Ninth Circuit, which held that under this statute the administrator has no authority to deny the States the right to issue permits for Federal facilities.

The arguments that I have just made under the Clean Air Act are, we think equally applicable to this statute.

Section 313, obviously was modeled upon Section 118.

The legislative history of this section like that of Section 118, again reflects repeated emphasis that what the Federal authorities ought to comply with are the State emissions standards, the substantive things, the effluent limitations, same requirements.

There is nothing in this history like that under the Clean Air Act that indicates Congress was intending to require federal facilities to obtain State permits.

Now, there is one distinction between the language of Section 313 and the language of 118, which both the Court of Appeals and the States of California and Washington argue calls for different result.

This is a provision which where after the statute says that they shall comply with State and Federal requirements to the same extent as any other person.

It then adds the phrase including the payment of reasonable service charges.

Justice Potter Stewart: Did you say that they think this -- that language calls in leads to a different result in this case or rather just makes it a stronger case --

Mr. Friedman: Makes it a strong -- there is a suggestion, there is a suggestion.

Justice Potter Stewart: A stronger case than Kentucky’s case.--

Mr. Friedman: Then Kentucky’s case.

And also the suggestion that if the Court were to agree with us in the Kentucky case, it could go the other way in this case.

The argument is made --

Justice Potter Stewart: I thought vice versa, very well, yes, if the Court could agree with you, we should agree with you --.

Mr. Friedman: If they hold it there is no authority to acquire permits under the Clean Air Act.

Now, the argument is that the words, including the payment of reasonable service charges refers to charges that the State might impose for issuing permits and that since a permit might be viewed in the nature of attacks, Congress inserted this provision, in order to make it clear that the Federal facilities could pay for the State permits.

We think to the contrary that what this refers to is to make it clear that the Federal facilities will have to comply with any State requirements relating of treatment of waste materials.

In this statute there are number of provisions which provide for vast Federal funding and research into the development of adequate local waste treatment facilities.

And the charges for those facilities are naturally extensive and we think what Congress intended in this provision was that if a State should conclude as part of its plan, that waste material would have to be processed through a local treatment facility, that the federal instrumentalities would have to comply with that and they would have to pay reasonable charges therefore, not any charge is the State, surfeit to impose but reasonable charges.

I am told that the fees for permits are relatively modest.

An average permit fee may sometimes be $25.00 to $50.00 and State of Washington which is the respondent here makes no charge for a permit fees and it seems most unlikely that Congress was concerned about that.

Much more probable in the light of this whole statute it seems to us is that Congress wanted to make it clear that in complying with the Federal standards, in complying, I am sorry, in complying with the State standards Federal facilities would, if the State required compliance and going through the local waste treatment plants would have to do that.

Now, here again, and under this statute as under the Clean Air Act, there are number of provisions within the statute itself, which we think are inconsistent with the view that Congress intended to require the Federal facilities to get the State permits, which once again as I just mentioned and that is why I want to repeat it, require him to get the State permit means, the State can tell him how to operate.

For example, there are several provisions which authorize the States to adopt certain procedures and certain standards except with respect to point sources of pollution owned or operated by the United States.

One example is Section 308 which provides and requires that permits to be approvable must have detailed provisions governing, monitoring, inspection and entry on to plants, obviously designed to ensure that there is compliance with the substantive standards contained in the permits.

The statute however explicitly provides that the State standards are not applicable to Government facilities.

Now, once again it seems rather unlikely to us that if Congress intended to give the States the authority to require Federal facilities, to obtain permits and then turned around and said to the States, you have got to have in your plans adequate provisions for monitoring and inspection to make sure that your permit holders are complying with these standards, and at the same time would have said, but you cannot do this with respect to Federal facilities.

It is all part of the same thing.

If the inspection and monitoring is that important for compliance and if the Federal facilities were intended to have to get State permits it seems clear to us, Congress would have said and the Federal facilities also are subject to these inspection requirements but Congress did not.

There is a similar thing with respect to so-called new sources of pollution and the statute is explicit that the United States must meet the new sources.

Once again, the Environmental Protection Agency may authorize the States to apply and enforce their own standards of performance for new sources, if they equal the Federal standards except for new sources owned or operated by the United States.

Here too, we think it most unlikely that if Congress had intended to require and authorize the States to issue permits for Federal facilities it would have denied the States the authority to enforce those permits against Federal facilities where the very standards sought to be enforced of those contained in the permits.

We have set forth in our briefs a number of other examples and instances in which the whole statutory scheme, the use of the language, the way it structured the various provisions seem to us inconsistent with the notion that when it used these general words to comply with the requirements respecting pollution of States, Federal and local sources that Congress intended thereby to give the States in effect what amounts to a veto power over the operation of Federal facilities, usually on Federal land within the State unless, the State decides that it wishes to authorize the Federal facilities so to operate.

Once again, as in the Clean Air Act we think something much more explicit and specific is required than what we have in either this language or in this legislative history which -- I reiterate again, indicates that what Congress was concerned about was the effluent limitations and not the procedures that the State might device in order to achieve compliance with those requirements by the private firms and people within the State.

Chief Justice Warren E. Burger: Very well, Mr. Friedman.

Mr. Walston.

Argument of Roderick Walston

Mr. Roderick Walston: Mr. Chief Justice and may it please the Court.

The Solicitor General argues in this case that this case is very similar to the Kentucky case.

However, in one fundamental respect our case is very different from the Kentucky case and that is that our case has a specific permit provision in Section 402 of the Water Act that is applicable to all dischargers.

Thus there is expressed authority in the Water Act for States and the administrator himself issue permits to discharges and that -- as that authorities found in Section 402 of the Water Act and thus the only issue on the Court is whether the States have authority to apply this permits to federal dischargers.

So there is a fundamental difference between this case and the Kentucky case in that respect.

And the administrator argues that Section 313 which imposes an obligation on Federal dischargers to comply with all the requirements under the Act does not include permits under Section 402.

Now, that result would lead to a very illogical result especially as applied to the administrator’s case.

For the administrator concedes that federal dischargers have to comply with permits which he, the administrator himself issues in States where he operates his own NPDES permit program.

Well, what is the source that obligation, where does the administrator himself get authority to issue permits to federal dischargers.

That authority has to be found in Section 313 of the Water Act because that is the only provision in the Water Act that defines the obligation of federal dischargers under the Act.

And that section specifically provides that federal dischargers must comply with both State requirements and Federal requirements.

And therefore the word requirements in 313 must include Section 402 permits or otherwise the administrator himself would lack authority to issue permits to Federal dischargers.

And under that result of course federal dischargers would be entirely exempt from the 402 permit provisions of the Act and the administrator himself in this case has conceded that that is not the result to be implied that Congress indeed intended for federal dischargers to comply with the 402 permit program.

And thus the administrator’s position results in a very difficult dilemma which the administrator has yet failed to address in this case.

Either the word requirement includes Section 402 permits or it does not.

And if it does, it must include permits issued by the States and if it does not, the administrator himself lacks authority to issue permits to federal dischargers.

Now, the Court asked a number of questions in the Kentucky case that I think are partially applicable at least to the issues in this Court, in this case.

First, Justice Burger, Marshall and Blackmun asked the question of why does the State have authority or need authority to issue permits to federal dischargers?

Well, the answer in our case is that the permit process itself is the very process by which an effluent limitation is developed with respect to a federal discharger.

The permit process is the process which enables the State to get the necessary information it needs to define the effluent limitation to be imposed on the discharger himself.

There is a number of questions that have to be asked of these dischargers and we have to get answers from them, for instance, what are the --

Justice William H. Rehnquist: But if, they are willing to give you the answers apparently.

Mr. Roderick Walston: Pardon me.

Justice William H. Rehnquist: They are willing to give you the answers apparently. They are willing to supply the information.

Mr. Roderick Walston: Well, they are not willing to supply the information that the State necessarily requests.

For instance, California has an administrative procedural process which requires all dischargers to come to the State to undergo cross-examination to offer documentary data and so forth.

That I suppose would be classified as a procedural requirement under the administrator’s view.

Justice William H. Rehnquist: And you say the federal facilities in California have been unwilling to comply with or substantially comply with that requirement?

Mr. Roderick Walston: As practical matter they have not.

As a practical matter the federal dischargers in California have historically complied with State administrative procedural requirements.

They have gone to the States or to the State of California and they have got permits from the State of California.

And thus the administrative practice in California is somewhat inconsistent with the position, the theoretical position being advanced by the Solicitor General in this case.

Justice William H. Rehnquist: Well, as a practical matter that is California up to now have been able to get the kind of information you say that it is essential for it to get in order to evolve these effluent limitation?

Mr. Roderick Walston: Yes.

And the reason for that is that the federal dischargers in California have in fact complied with the procedural requirements of California.

Obviously if they were not required to so comply as the Solicitor General says they need not comply then California could not get the information that it has historically obtained through the administrative permit process.

There is a second answer to the argument or the question which was posed by the various justices and that is this, the administrator himself cannot issue permits to federal dischargers once he approves a State program by virtue of Section 402 (c) of the Water Act.

That provision requires the administrator to suspend his permit issuing authority in the entire State after he approves the State program.

Thus, if the administrator himself cannot issue these permits then nobody can according to Solicitor General’s position in this case.

Chief Justice Warren E. Burger: Do you agree that the well established doctrine is that from the Federal Government surrenders its immunity to be accomplished only by very clear expressed statements?

Mr. Roderick Walston: I think that is a probably a correct statement of law Your Honor.

But I do not think the question is really applicable here.

Section 313 of the Water Act constitutes a clear waiver of Federal immunity from State regulation.

It specifically provides that federal dischargers have to comply with State and local requirements.

And as a matter of fact the Solicitor General concedes that this language obligates federal dischargers to comply with State of limitations.

So there has been a waiver of sovereign immunity or Federal immunity in this case, all we are talking about is the extent or the scope of the waiver.

As I say, it seems to me implicit in the concept that the State has the authority to issue effluent limitations to assume they are from -- the State has the authority to issue the permit which contains those limitations.

Justice Thurgood Marshall: But the Government does not have to follow it?

Mr. Roderick Walston: Pardon me.

Justice Thurgood Marshall: There is nothing that says that Federal Government has to follow it?

Mr. Roderick Walston: Section 313 --

Justice Thurgood Marshall: I understand the Solicitor General’s point is that if you want to subject the Federal Government to permit, you have to say it.

Mr. Roderick Walston: Well we think that Congress said that in Section 313 (Voice Overlap) Pardon me.

Justice Thurgood Marshall: (Inaudible) practically?

Mr. Roderick Walston: Yes.

And we think that Congress spelled that out in Section 313. Congress said --

Justice Thurgood Marshall: And it included permits.

Mr. Roderick Walston: Well, if it must have included permits because this is the only -- Section 313 is the only authority that the administrator himself has to issue permits the federal dischargers.

Justice Thurgood Marshall: I could feel, I do not know whether you have to give up a certain point.

Because I understand the Government’s point, they are willing to go along with everything but this permit did.

Mr. Roderick Walston: Yes.

And we feel that that would make it very difficult for the State to actually develop it.

Justice Thurgood Marshall: Well, would be it impossible for the State to do it?

Mr. Roderick Walston: do not think so.

I do not

Justice Thurgood Marshall: (Inaudible)-- difficult.

Mr. Roderick Walston: I do not think that it would be possible for a State to develop an effective, meaningful limitation, effluent limitation unless it -- somehow had the authority to engage the --

Justice Thurgood Marshall: That would be more difficult for you to track that now.

Mr. Roderick Walston: Well, I suppose it would not be impossible, I suppose that is true but it is certainly very difficult.

I think that is true.

Of course, the State could shoot in the dark --

Justice Thurgood Marshall: It just wants the Federal Government to say we are bound by you to the state --

Mr. Roderick Walston: Yes, I suppose that is true.

In other words the State could --

Justice Thurgood Marshall: And the next step is by permit?

Mr. Roderick Walston: Yes.

Maybe it is very difficult --

Unknown Speaker: (Voice Overlap) the less.

Mr. Roderick Walston: Pardon me.

Justice Thurgood Marshall: And you will not settle for less?

Mr. Roderick Walston: We do not think -- we will not settle for less because we do not think Congress settled for less.

We do not see a distinction between the permit process and the effluent limitation that is contained in the permit.

I suppose in answer to your question, Justice Marshall that the State could certainly shoot in the dark, it could throw out some effluent limitations based on very poor data that Federal discharger himself might voluntarily submit.

But we would not have any insurance that that is a very meaningful effluent limitation.

We cannot do that, we cannot form an effective meaningful limitation unless we have got the federal discharger in there to find out for example, how long it is going to take him to solve his water pollution problems.

In others, what kind of schedule of compliance for example, has to be built into the -- the Federal permit --

Justice William H. Rehnquist: What you are suggesting Mr. Walston is that the State substantive regulation do not simply exist as a body of common law that can be plucked out and applied to a particular individual by the EPA but rather that they are developed in the permit application procedure almost on a case by case basis.

Mr. Roderick Walston: That is precisely correct and that is the whole concept Justice Rehnquist to the permit system in the Federal Water Pollution Control Act.

The permit system enables the States or the administrators, the case maybe to develop effluent limitations that are applicable on a case by case basis, permit by permit basis to each individual discharger.

The State cannot develop a broad effluent limitation that is broadly applicable to everybody.

It has to develop a limitation by looking at the exigencies of the specific particular discharge.

And, the Solicitor General’s position would not allow the States to do that.

Next, Justice Powell asked the question of whether the States could prevent Federal dischargers actually from operating.

Could the States for instance shut down Fort Knox?

Well, there are two answers there.

First of all, Section 313 of the Water Act specifically authorizes the president to exempt a Federal effluent source if he deems that exemption to be in a paramount interest of the United States.

And thus, the president could simply say, you cannot shut down Fort Knox, State of Kentucky, simply because I exempt Fort Knox.

Chief Justice Warren E. Burger: (Inaudible) the power to shut down or not shut down?

Mr. Roderick Walston: I suppose hypothetically that if the State refused to issue a permit the discharger then could not operate.

I suppose that is true.

As a practical matter the States do not that.

They issue the permit and then impose the effluent limitations in the permit itself.

So, the effluent limitations are the conditions, which the discharger must meet and this leads into the second response to that question and I think Justice Rehnquist appreciated this response.

We get the same result even under the administrator’s view of this case.

For he concedes that federal discharger have to comply with State effluent limitations.

Well, it is the effluent limitation that defines the specific nature of the obligation on the federal discharger, the permit itself is little more than a certification that the dischargers are complying with those limitations.

But if the effluent limitations that tells the discharger what steps he must take to correct water pollution, to stop polluting the water and when he must take these steps.

And so hypothetically, I suppose a State could develop such a stringent effluent limitation Justice Powell that the practical effect would be to shut down the Federal facility.

Justice Thurgood Marshall: Mr. Walston, suppose --

Mr. Roderick Walston: The administrator concedes that --.

Justice Thurgood Marshall: The State says that you must not discharge more than one point million whatever it is, certain kind of liquid into a stream, right?

Mr. Roderick Walston: The State says that?

Justice Thurgood Marshall: Yes.

Mr. Roderick Walston: Yes.

Justice Thurgood Marshall: The Federal Government has got to abide with it, right?

Well now, I suppose the State says, you cannot discharge more than one point blank the same figure, can also get a permit?

Mr. Roderick Walston: Yes.

Justice Thurgood Marshall: What is the benefit of the permit?

Mr. Roderick Walston: The permit enables the States to make that determination about the 1.1 figure that the federal discharger has to live with.

If the State cannot issue the permit and engage in the administrative process that leads to the issuance of the permit, it may not know whether the 1.1 figure is correct or whether 1.2 figure would be correct or whether the figure should be five or three or two or whatever.

Justice Thurgood Marshall: Well, once the Federal Government said, you go ahead and tell me how much I can do, right?.

Is that okay without a permit?

Mr. Roderick Walston: I did not quite appreciate the question.

Justice Thurgood Marshall: The Federal Government says we have got plant x, you tell us how much we can discharge and we will buy it back but we will not give you – we will not apply for a permit.

Mr. Roderick Walston: Well, certainly the Federal Government in that case, the federal discharger has to comply and live with that particular limitation.

Justice Thurgood Marshall: I said they said that.

Mr. Roderick Walston: Yes.

They agree with that.

Justice Thurgood Marshall: Would they still have to get a permit?

Mr. Roderick Walston: Yes under Section 313 --

Justice Thurgood Marshall: Why?

Mr. Roderick Walston: Well, Section 313 of the Water Act requires that.

Section 313 requires federal dischargers to comply with State requirements respecting control and abatement of pollution.

Justice Thurgood Marshall: And if we do not agree with you on what 313 means and that is it?

Mr. Roderick Walston: It is not only that is it.

It means that the federal dischargers themselves are completely exempt from Section 402 permit provisions.

And the administrators, this is the --

Justice Thurgood Marshall: But before we get to all of that, you lose.

Mr. Roderick Walston: Well, we lose the administrator, the administrator loses his own authority to issue permits.

Justice Thurgood Marshall: Do you agree that you lose?

Mr. Roderick Walston: Yes, I certainly agree with that.

Justice Potter Stewart: And your point is that, under any consistent reading of the statutory language and the administrator too would lose any authority to issue permits.

Mr. Roderick Walston: Precisely.

Justice Potter Stewart: I understand your basic 402 argument, which I understand.

I think you are beginning to explain a specific and more limited argument with respect to 402 (c) a few minutes ago when we interrupted you with question I am not sure I understand.

Mr. Roderick Walston: The 402 (c) requires the administrator to suspend the issuance of permits in to a State once he suspend his issuance of permits in that particular State once he approves the State program.

And thus, under that result the administrator once he approves the State program does not have authority to issue permits to anybody.

Federal dischargers or anybody, so what I am saying is that once the administrator approves a State permit program he does not have any authority to issue permits to federal dischargers under the language of the Act.

Well, that leads the result into the --

Justice Potter Stewart: That language, can you tell us where the language is?

Mr. Roderick Walston: Yes, it is in the Section 402 (c) of the --

Justice Potter Stewart: Where in the papers filed, in the briefs served.

Mr. Roderick Walston: Page -- California’s brief, page 11.

Justice Potter Stewart: Thank you.

Mr. Roderick Walston: And along these lines, I would like to confirm that result, Justice Stewart by quoting the Senate and House Report which describe the effect of Section 402 ©.

Now listen carefully, this is the House Report now page 854 of the one legislative history volumes, “upon approval of the State program, the administrator would suspend the issuance of permits for dischargers in to the waters of that State” that is the House report.

The Senate report

Justice Potter Stewart: Has specific reference to 402 (c)?

Mr. Roderick Walston: And the senate report and we did quote the Senate report in our Brief page 10 at footnote 10, states as follows, “therefore the bill provides that after a States submits a program which meets the criteria established by the administrator pursuant to regulations, the administrator shall suspend his activity in such State under the Federal permit program.

Thus, once the administrator approves the State program he loses the authority to issue permits that any discharger Federal or otherwise and that he has no authority to issue permits to Federal dischargers once he approves the State program”.

Unknown Speaker: Mr. Walston can I ask the question about the Federal permit program?

As I read 402 (a), the whole Federal permit program is permissive rather than mandatory.

Do you understand that the Federal Government is required to issue permits rather than for example setting general limitations which must be provided across the board?

Mr. Roderick Walston: We believe that section 402 is mandatory as quite the federal dischargers by virtue of section of 313.

Unknown Speaker: That everything must be done on a permit by permit basis?

Mr. Roderick Walston: Yes, that is correct.

Thank you Your Honor.

Chief Justice Warren E. Burger: Mr. Attorney General.

Argument of Slade Gorton

Mr. Slade Gorton: Mr. Chief Justice and may it please the Court.

Mr. Justice Stevens, the basic answer to your last question is that there are of course a number of Sections of this Act which are of great importance.

The one which answers your last questions is section 301 which is the prohibitory section of the Act.

That says thou shall not without a permit.

This means --

Unknown Speaker: I do not think it quite says that Mr. Gorton, I do not so read it maybe that is the way it is generally understood.

Where do we find that?

Mr. Slade Gorton: All right, section 301 (a) except—

Unknown Speaker: We will find that in the papers --

Mr. Slade Gorton: I am not sure but 301 is quoted in full in any of the Briefs that maybe in ours.

Unknown Speaker: It says, except that it is in compliance with this section in Section 402 among other section.

Mr. Slade Gorton: Right, the discharge in a pollutant.

Unknown Speaker: The discharge is unlawful.

But what is it that says one is not in compliance with 402 if there has been no permit program instituted?

The permit program provided by, specified in 402 is permissive as what I am suggesting?

Unknown Speaker: And as the federal permit program.

Mr. Slade Gorton: The Federal Permit Program is a -- thus it is true that the Federal Program says that the second line of section 402 says that the administrator may issue a permit --

Unknown Speaker: I could not read that I just suggest this is possibility to allow a specific permit of greater discharge than the limitation would normally authorized.

Mr. Slade Gorton: Yes, there is no question about that.

This is why we have—

Unknown Speaker: So well, just to get my thought out so that you can address would it not be consistent with the scheme of the Act for the Federal Government have a general effluent limitation.

And then some permits which are more liberal.

Mr. Slade Gorton: Yes, as a matter of fact that is the scheme of the program.

We have certain goals set out in the Statute for 1977, others for 1985.

Those goals are not met by the conditions of the permits which are issued today.

Unknown Speaker: Then would it not follow that the abandonment or suspension of a Federal Permit Program within a given State would not remove all Federal control over discharges within that State.

Mr. Slade Gorton: No, I do not.

Unknown Speaker: The limitations would still apply

Mr. Slade Gorton: No, because the State under section 510 has the right to impose more stringent limitations than does the Federal Government itself.

That State authority is specifically not only preserved but perhaps as you may say created by Section 510.

Unknown Speaker: Do you understand just to get my last question so I understand this.

Do you understand that the Federal Government would have the authority to disapprove of a State permit program on the ground that it was too severe?

Mr. Slade Gorton: No, the Federal Government would not have the authority to disapprove because of 510.

We must meet nine qualifications under section 402 (b) to be authorized to have a permit program.

When we have met those nine qualifications, we are entitled to manage our own permit program but that permit program and our effluent limitations maybe more respective than those which the EPA Administrator had operated under section 402 (a).

This is consistent, I would like to go back if I can and walk through several sections of the Statute and just a bit of history.

Up in the 1970 of course as the Solicitor and we agree.

Only the States could issue permits in water pollution control matters.

In 1970, the president discovered the 1899 Refuse Act and the core of engineers begin to issue permits to water polluters.

This of course created a duplicatory and relatively wasteful system besides having the core of Engineers involved in it.

Which it was one of the principal designs of the 1972 act to cure, it wanted to get rid of that duplicatory system.

So the Permit System in 402 first says, under 402 (a) EPA issues permits.

Second, it says in section 402 (b) and this was expected and it is explicitly listed in the sponsor’s remarks about the Act.

That as soon as the States met Federal qualifications.

The EPA must approve the State plan.

Not may at one point it did say may.

But as the Act that was passed, it said must approve the States plans and under 402 (c) must promptly suspend the issuance of its own permits.

Now, 402, we all agree it contains no exemptions for Federal agencies.

But during the course of the passage of that Act through Congress at one point it did contain an exemption for Federal agencies from one relatively limited element of section 402.

But that was not only taken out by the conference committee but the conference committee report shows that it was taken out conscious of the fact that the Federal Government should not have that specific exemption.

Section 301 refers to persons, the prohibition of section 301 refers to persons and as the basic prohibitory section of the Act.

But Federal agencies are not included within the definition of persons in Section 502, subsection 5.

So if it were not for section 313, EPA could not issue permits to federal entities.

And of course, neither could States.

Section 313 as my colleague from California has already said is the reason EPA can issue permits as well the States.

And it lands them directly together.

It says Federal agencies are to comply with Federal and State requirements respecting control of the abatement of pollution to the same extent that any person is subject to such requirements.

So the Federal agencies seek 402 (a) permits or 402 (b) permits by a reason of exactly the same authority.

And if the word “requirements” in the statute Mr. Chief Justice, is not broad enough to include procedural matters, i.e. State permits under 402 (b) it is not broad enough to include Federal procedural requirement or permits under 402 (a).

The authority of the EPA and the States are identical.

Now not only is this a wrong and absurd result because it would free Federal agencies from any obligations to secure any permits at all and because the dictionary definition of the word requirements has to be totally distorted for you to come to that kind of answer.

It is also wrong-

Justice John Paul Stevens: Mr. Gorton, may I go back to my prior point just where you are now.

It would not however free the Federal agency from the requirement of complying with the applicable effluent limitation is that not right?

Mr. Slade Gorton: That is right.

Justice John Paul Stevens: Yes.

Mr. Slade Gorton: That is right.

This part of the distinction would still theoretically exist but neither we nor EPA makes the claim of course, that EPA does no want make claim that Federal entities are free from the permit, its own permit requirements.

But there is another matter which helps in this connection as well.

And this may answer directly your question.

If you go to section 505 F6, 505 F6 or 505 is the so called citizen suit provision of the statute which means that if EPA does not do its job and the State does not do its job.

A citizen can come in and bring a lawsuit in order to enforce the Act.

Under that, an effluent limitation, i.e. the substance that the Solicitor is talking about is defined in 505 F6 as a section 402 permit.

That is to say there is no distinction between substance and procedure.

And then in parenthesis which is also includes a section 313 requirement.

Right back to the very word which the Solicitor claims does not include permits.

Effluent limitations permits requirements, all fall within the same category

Justice John Paul Stevens: Have you reproduced anything than we have here?

Mr. Slade Gorton: Page 19 of—

Unknown Speaker: (Voice Overlap)

Mr. Slade Gorton: It will be on page 19

Justice John Paul Stevens: Of what, of your Brief?

Mr. Slade Gorton: No, this is the California Brief.

Justice John Paul Stevens: Of the California Brief.

Mr. Slade Gorton: I think it is probably in the appendix to my Brief as well.

Justice John Paul Stevens: Alright.

Mr. Slade Gorton: Well, of the Gray.

Unknown Speaker: Is this color, whatever the color is, funny color.

Mr. Slade Gorton: Right and let me read it.

Section 505 describes “an effluent standard or limitation” as including “a permit or condition there of issued under section 402 of this act which is in effect under this act (including a requirement applicable by reason of section 313 of this Act)”.

And the only answer the Solicitor has to that proposition is that the first five subsections of that subsection are not requirements and that therefore this does not mean anything.

But first five subsections are not included in the parenthetical expression.

It is a known secret or even so much as to argue that point.

Chief Justice Warren E. Burger: Mr. Attorney General can you tell us how many States have founded trustful function without a permit system?

Mr. Slade Gorton: No States, Your Honor.

This is not like the air case.

This is not like the air case—

Chief Justice Warren E. Burger: Unlike the Air case.

Mr. Slade Gorton: No.

This is not that kind; there are 27 States as the Solicitor General says which have qualified to operate their own permit system.

But in the other 23, the administrator continues to operate a permit system.

This is the current number.

Now, the United States claims that because Federal agencies are expressly exempted from State procedures enforcing new source standards by the terms of 306 (c) of the Act and because Federal agencies are expressly exempted from State procedures for inspection monitoring and entry with respect to point sources within the State by the terms of 308 (c) an exemption from the State permit programs authorized by section 402 (b) has got to be implied.

Now there are two reasons why this is not so.

The first is, because each of those exemptions not to mention another in 401 (a) which is irrelevant to this argument and the original house version which was right in section 402 itself and which removed by the conference committee.

Each of these shows graphically that the congress know perfectly well how to exempt Federal agencies from specific water control act programs when it wished to do so.

Not only did it not do so, in either section 402 or 313 it even expunged the partial exemption which originally appeared in section 402 in the House version, and the legislative history, which we shall find noted on page 30 of the California Brief, expressly shows that the conference committee knew exactly what it was doing in taking out that particular exemption.

Chief Justice Warren E. Burger: When you use the term program, what do you appraise in that?

Mr. Slade Gorton: Well, in the case of 306 (c) and 308 (c) these were fragmented and limited programs.

306 (c) applied or section 306 applies only to new source standards, that is a new factory or your new installation.

And section 308 creates a way in which there will be inspection and monitoring a procedural matter.

I think essentially as opposed to substantive requirements.

And this of course is exactly the point.

What the Congress decided was that the State wanted to do a half baked job.

And only control new sources or perhaps only to have an independent inspection system not related to any substantive requirements whatsoever.

Congress was not to let the States do that to Federal agencies and that is why they were exempted.

They wanted to encourage the States to take over the whole program.

This is the point of the entire Act.

So a State can have a program for new sources only.

It can have an inspection program only but without having a full.

402 (b) permit system, but it cannot enforce that against the Federal Government because EPA and that same State will still be operating a permit program under 402 (a) and that Congress did not want this kind of duplicatory system.

But once the State took its responsibilities under 402 (b) then Federal agencies fall within it because under the expressed terms of section 402 (b), we must have elements of a new source program under 306 and an inspection and monitoring system covered by section 308.

And at that point of course the Federal agencies must secure State permits as well as abide by State substantive standards.

And so this Act is completely consistent throughout.

Just as the State cannot require Federal agencies to abide by fragmented States program and to create a dual or duplicatory system while EPA is still issuing permits under section 402 (a), So EPA cannot create a dual or parallel permit program like harping Federal agencies out of the State permit program under 402 (b).

With all of the confusion which is automatically going to attend upon a Federal permit program to enforce State standards.

This is what section 402 (c) says, it said what section 313 says and is what they mean.

And the very case which the Solicitor General is making takes him right out of Court himself along with us.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Attorney General.

Mr. Friedman

Rebuttal of Friedman

Mr. Friedman: Mr. Chief Justice and may it please the Court.

First let me just briefly allude to the argument that Mr. Gorton has made with reference to section 505 (f) 6 and what that says that in effect a citizen suit maybe brought against a Federal instrumentality which is alleged to be violating an effluent standard or limitation and then it says that an effluent standing or limitation includes a permit or condition thereof issued under 402 of the Act which is in effect under the Act including a requirement applicable by reason of section 313 of the Act.

We think that the requirement applicable by reason of section 313 of the act refers to is a substantive standard imposed in a Federal permit.

Not in the State permit in a Federal permit that has been issued to a Federal facility.

I would like to also --

Unknown Speaker: Mr. Friedman that depends on that if you answer the case when you say that, that depends on how you read 313 does it not?

And it is never really decided.

Mr. Friedman: Yes Mr. Justice.

But it does come back to that but my point they say that the fact that there is reference to a requirement of 313 in 505 f 6

Justice John Paul Stevens: And is it not requested, what is the word requirement mean in 313?

Mr. Friedman: Yes, it seems to me if you conclude one way or the other it is easy what they say is the fact as a reference to requirement on the 313 necessarily indicates that 313 requirements includes the State permit system.

Justice John Paul Stevens: Oh I see, you are saying, you argue requirement means substantive limitation in 313

Mr. Friedman: In --

Justice John Paul Stevens: It means the same thing in 506?

Mr. Friedman: Well, we say as it means as substantive requirement either in a -- it means a substantive requirement in a Federal permit Mr. Justice.

That is our point that if they are right if it is -- it could mean more of two things.

It could not mean the substantive requirement in a permit because we say the States have no authority to require permits for Federal facilities.

But we do say it means the same substantive requirement which may be included in a Federal permit that has been issued to a Federal Facility.

If I may just refer briefly to one point you made earlier as to whether the permit program under section 402 is a mandatory program.

The environmental protection agency takes the position that it is.

That they have to have a permit program that is the whole scheme of the statute to control point source pollution by a program of permits.

First to be issued by the environmental protection agency and then if a satisfactory State permit program is included by the State.

Now, the suggestion is made of that because the statute requires and terminates the authority of the administrator to issue Federal permits once he approves a State permit program.

If he approves a State permit program that means one of two things, either that is entire authority to issue permits to Federal facilities as terminated or as it has been suggested in the brief that somehow when he gets rid of his authority to issue permits, that means somehow the States get.

Well, it seems to us that if we are correct in our position that there is no authority under this statute for the States to compel Federal instrumentalities to obtain permits, that when the administrator approves a State plan which provides for the State issuance of permits necessarily, he cannot approve the plan insofar as it purports to give the States authority to issue permits for Federal facilities.

Because there is nothing in the statute that permits that and we think inherit in the whole concept is when he approves a plan, all that he can approve and all that he loses authority to issue is with respect to those portions of the State plan that are valid and if the State plan is invalid as he held in his regulation and as he held in these two cases.

If it is invalid because under the statute the State cannot require a Federal instrumentality to obtain a permit, then necessarily his approval of the State plan does not touch upon that issue.

Justice John Paul Stevens: That is your response to the 402 (c) argument?

Mr. Friedman: Yes.

Justice John Paul Stevens: How about more basic 402 argument that State and Federal permits under the statute standard fall together.

Mr. Friedman: We do not think they have to Mr. Justice.

Justice John Paul Stevens: Well, I would like hear why.

Mr. Friedman: Because-

Justice John Paul Stevens: Because the great big part of their argument is so far as I have heard you have not redirected the authority.

Mr. Friedman: Our answer to that is that the authority to issue permits does not stand from 313, it stems from 402.

All that 313 does is State that the Federal facilities must comply with the substantive requirements of State and Federal law.

However those requirements were imposed.

Whether they are imposed under a State program, whether the State has some sort of a regulatory scheme that does not matter as long as the State imposes substantive requirements, 313 requires that the Federal instrumentality is comply.

But there is nothing in 313 that speaks of permits.

The whole argument is whether the word requirements in 313 covers permits.

But 313 does not authorize any issuance of permits.

The permits are issued by the Federal system under -- by the administrator under 402 if the administrator delegates to the States, the authority to issue such permits then they have that authority under 402.

But you look to 402 only to see who can issue permits?

But the authority to issue permits and the requirement that there be compliance with the substantive standards either in the permits or else where is what 317 does.

Unknown Speaker: Perhaps you said Mr. Friedman; would the administrator approve a State plan that did not have a permit system?

Mr. Friedman: He would not have -- no, because under 402 the only State plan is a State plan for a permit.

Now he could have approved.

Unknown Speaker: So that if the State does not have a permit system their plan will be disapproved?

Mr. Friedman: Well, that is right.

The only State because -- and then the Federal permit plan would continue in operation, that is what we have and 23 States have not submitted and do not have any State, any federally delegated, Federally approved permit but that does not mean that the State could not impose other requirements.

But a State might have a permit plan which is very different from the Federal standards which it would apply within the State but nevertheless there would still be the Federal permit plan.

The only way that the State can oust the EPA plan which is in operation is if it submits a plan which EPA approves.

Unknown Speaker: So that if a State submits a plan that has only substantive standards and had no permit system, what happens?

Mr. Friedman: The EPA would have to disapprove that plan.

Unknown Speaker: In its entirety?

Mr. Friedman: In its entirety.

Unknown Speaker: So in that respect, this statute is different from the Federal statute, different from the air legislation --

Mr. Friedman: It is different—

Unknown Speaker: It does not require that State plans have permits.

Mr. Friedman: That is correct.

The statute is different because one of the key elements of this is a permit plan.

Unknown Speaker: Right.

Mr. Friedman: But it seems to us its – there has been a suggestion here that somehow because you have a permit plan generally, that necessarily indicates that Congress intended to impose that same kind of permits issued by the States upon the Federal authorities and the State authority.

It seems to us it is a very different thing I like to conclude on this note.

Between saying that the Federal instrumentalities have to comply with the substantive requirements that the State has imposed which is what Congress has done section 370 and to take the next and to us a very large step of saying and it is the States, it is the States and not the Federal Government that can require the Federal instrumentalities to do that.

We do not think Congress has gone that far in the statute.

Unknown Speaker: Mr. Friedman can I just ask one question, is there anyway for a State to articulate a substantive requirement except through a permit?

Mr. Friedman: Well I think they negotiate, they do it they can announce it for a particular, they can come in and talk and they could say for a particular point, you cannot throw into the water more than ten gallons chlorine a day.

They can come in, they talk to these people, they can work the thing out and then the Federal people would be required to comply with that.

We do not accept this notion that the only way you can have meaningful effluent standards is through a State permit program.

Attribution:

The OYEZ Project

Featured:

Huron Cement Co. v. Detroit - Oral Argument, Part 1

Thu, 29 Nov 2012 22:24:26 +0000

Case:

Huron Cement Co. v. Detroit

Media File:

86_19600229-argument-1

Related Transcript:

86_19600229-argument-1

Transcript:

Argument of Alfred E. Lindbloom

Mr. Alfred E. Lindbloom: May it please the Court.

This is an appeal (inaudible) Court of Michigan.

The Supreme Court of Michigan affirmed the decree of the trial court which held that the Detroit's smoke ordinance which in effect provided for the inspection and -- and approval of boilers on -- on appellant's vessels engaged in interstate commerce and which had been approved, inspected and proved and licensed by the Federal Government to navigate was applicable to -- to those vessels.

And also that the penalty provision of the smoke ordinance which could not be complied with, with the boilers which had been approved, inspected and licensed by the Federal Government.

The appellant claims that the Federal Government by its boiler or by its inspection laws had preempted the field and that therefore the city ordinance could not validly be applied to the vessels.

It also claimed that the equipment on vessels engaged in interstate commerce required uniform treatment.

And that the ordinance which also provided for inspection and approval of the same equipment and require a -- required necessary treatment and that -- and it was an undue burden upon interstate commerce.

The facts are that this appellant has a mill in Alpena, Michigan and has a fleet of six vessels which -- with which it transports cement from its mill in Alpena to various ports on the Great Lakes.

Five of these vessels are steam vessels and they're equipped with hand-fired Scotch marine boilers.

And --

Justice Felix Frankfurter: It's necessary to understand your case, to understand what -- what a marine Scotch boiler is because it's sold and you'd better explain that these -- one ignoramus to understand.

Mr. Alfred E. Lindbloom: I don't think it is, Your Honor.

If it is, it's merely a boiler in which you put in the fuel and the fuel heats tubes that runs over the fuel.

Justice Charles E. Whittaker: Well, this hand -- hand-fired Scotch marine has more smoke, that is emphasized.

Mr. Alfred E. Lindbloom: That's right.

That's right.

The -- the hand-fired Scotch marine boiler is the grand dad of the boilers used on the vessels and it -- it as, Your Honor -- as Your Honor said it does admit more smoke.

But these vessels are inspected annually at the time and bi-annually now by the United States Coast Guard.

There, the vessels are inspected and the (inaudible) is inspected.

And after this --

Justice Felix Frankfurter: But it's just -- do they -- do the statutes or regulations specifically call for inspection of boilers?

Mr. Alfred E. Lindbloom: Yes.

Yes, Your Honor.

Justice Felix Frankfurter: Specifically.

Mr. Alfred E. Lindbloom: Yes.

Justice Charles E. Whittaker: Well, is that the -- the only authority for safety on stevedoring purposes or is it also for air pollution.

Mr. Alfred E. Lindbloom: Well, sir, I can't point to anything in the statute that says air pollution.

No.

But the statute says that if the broiler is for any reason unsafe, it should not be approved.

The approval says it shall be -- it shall be approved only of it's safe and in whole in part or if it's because of defective design or defective workmanship, defect of material or for any other reason is unsafe, then the boiler should be and must be (Inaudible) that purpose.

Justice Felix Frankfurter: And I take that you will argue that unsafe is not restricted to safety for purposes of functioning as a boiler.

Mr. Alfred E. Lindbloom: That is part of my argument.

But my argument is more than that because I -- after the Federal Government has inspected these boilers, found them safe for whatever purpose the statute requires, it issues a certificate, which certificate also contains a license.

And that -- that license is, the said vessel is permitted to be navigated for one year on the Great Lakes.

Now, that is the license which is included in the certificate of inspection.

Then there's also another certificate which the Treasury Department issues and that at the bottom of it.

That is -- that and the photostat of that is contained in the transcript for the record following page 42.

There at the bottom of that, there's a license.

“License is hereby granted for the said vessel to be employed in carrying on the coasting and foreign trade for one year from the date hereof but no longer.”

It is our -- It is my primary contention that by those two licenses, the Federal Government has specifically said that this vessel bearing in mind that the first license describes the vessel, describes the boiler and it has inspected the boilers, says that this vessel maybe used to navigate the Great Lakes for one year.

Justice Charles E. Whittaker: May I ask you, Mr. Lindbloom, if Michigan might say at one of these vessels as it passed through the Detroit River should not exceed five knots per hour.

Would that be in light of these licenses, these federal licenses beyond the state power?

Mr. Alfred E. Lindbloom: I would doubt if it were.

But there you see, there, the -- the vessel could be controlled by that speed.

The point I'm getting to here is that this smoke ordinance cannot be complied with, with the equipment that has been approved and licensed.If -- if in Your Honor's question, these vessels could not go unless -- it could not go at a speed of -- of as little as five knots an hour then I would say that -- that the Detroit could -- but under the question, they could comply with the -- with the ordinance, and here, they can't.

Justice John M. Harlan: How old is this federal statute?

Mr. Alfred E. Lindbloom: Oh, I think it goes back for many, many years probably the 1870 and through there.

I'm picking -- figure out the year but it is old.

Justice John M. Harlan: Long before the State of Morgans?

Mr. Alfred E. Lindbloom: Oh, yes.

Yes.

Justice Hugo L. Black: I didn't -- I didn't quite understand the last statements you made when you said --

Justice Felix Frankfurter: He doesn't argue.

Justice Hugo L. Black: And did I understand you to say that they cannot comply with the ordinance?

Mr. Alfred E. Lindbloom: They cannot.

Justice Hugo L. Black: It -- it's impossible to comply with the ordinance.

Mr. Alfred E. Lindbloom: Is -- yes.

That's a finding of the -- of the -- that was admitted in the trial and it's -- it's a finding in the -- of this.

Justice Felix Frankfurter: You mean with this, “and use this boiler.”

Mr. Alfred E. Lindbloom: Use this boiler.

Justice Hugo L. Black: Well, I --

Mr. Alfred E. Lindbloom: Yes.

Justice Hugo L. Black: I thought you -- but now I understand that you're qualifying it that way.

Mr. Alfred E. Lindbloom: Oh I -- that's right.

It can't --

Justice Hugo L. Black: Well, I'm not assuming that it's impossible to --

Mr. Alfred E. Lindbloom: Oh no.

No, no.

Justice Charles E. Whittaker: Well --

Mr. Alfred E. Lindbloom: We -- we could put in -- we could put in other -- we could put in another boiler or we could put in an underfeed stoker at a cost of $70,000 or $80,000 and -- or we could put in oil -- oil burning equipment at a $100,000 withheld which -- with which we could probably comply with the present Detroit's --

Justice Hugo L. Black: It's a question of cost.

Mr. Alfred E. Lindbloom: It's a question of cost to begin with.

But I think there's more than that because I think there is this question of preemption.

Justice Hugo L. Black: Well, I'm simply --

Mr. Alfred E. Lindbloom: Yes.

Justice Hugo L. Black: -- do you think because that it's affected by preemption.

As in effect, preemption.

Mr. Alfred E. Lindbloom: Yes.

The -- the -- it seems to me that Congress by -- by passing or by issuing these licenses has expressly said that this particular vessel may be used.

And because -- now to go for a minute --

Justice Hugo L. Black: Is there anything in the record which shows it specifically and expressly that the Government agreed that vessels which would emit this kind of smoke could be utilized despite the city ordinance?

Mr. Alfred E. Lindbloom: Well, if you mean by that, I'm not quite sure I understand.

If you mean by that that the Federal Government expressly say that ignoring or taking --

Justice Hugo L. Black: Yes.

Mr. Alfred E. Lindbloom: -- a consideration of the Detroit ordinance?

Justice Hugo L. Black: Yes.

Mr. Alfred E. Lindbloom: No.

I mean -- I mean, there's nothing -- there's nothing in the record.

Justice Hugo L. Black: Does it have -- does it -- does a federal Government regulation have any provisions as to smoke control at all?

Mr. Alfred E. Lindbloom: Not expressly, none.

None expect what I argued a moment ago that -- where they said that the boiler is unsafe for any reason.

Justice Hugo L. Black: Yes, that's the closest you come to any federal regulation.

Mr. Alfred E. Lindbloom: Yes, Your Honor.

Chief Justice Earl Warren: Is there anything in the -- in the inspection service of the Coast Guard to -- to indicate that -- that the Government has any standards or -- or is interested in how much smoke these boilers emit?

Mr. Alfred E. Lindbloom: I think to answer that candidly, I have to say there isn't anything.

And this -- the Detroit smoke ordinance, first -- first, requires an inspection of any equipment that's used within the city and -- and it -- then it also provides that if a boiler emits smoke three times of the prohibited time within any 12 months period, the equipment shall be sealed and the seal shall -- shall stand unless the sea Commissioner finds that there's an improvement in the equipment.

Justice Hugo L. Black: Have they tried to do that here?

Mr. Alfred E. Lindbloom: No, not yet.

Justice Hugo L. Black: We don't -- we don't have an actual effort to do that under the ordinance.

We don't yet because as I tried to explain in my reply brief, the -- there was a difference of opinion of the Attorney General in Michigan and as soon as -- soon as the city started to -- to enforce the -- the penalty provision, we got the injunction and -- but we allege in our bill of complaint that the city has threatened to enforce the ordinance against us.

Chief Justice Earl Warren: Is that the only sanction with the ordinance?

Mr. Alfred E. Lindbloom: Well, it can --

Chief Justice Earl Warren: To prevent the -- to prevent the -- the -- to tie the ship up?

Is that the only sanction in the ordinance?

Mr. Alfred E. Lindbloom: No, no.

We could --

Chief Justice Earl Warren: What are the other sanctions?

Mr. Alfred E. Lindbloom: That it -- its criminal, $100 fine and for -- not only the company but also the -- the officers on the boats one -- and a $100 fine, 30 days in jail or both and each day's violation is a new -- is a new penalty.

Chief Justice Earl Warren: You attack the whole ordinance, the entire ordinance before they have applied any sanction to the company.

Mr. Alfred E. Lindbloom: Except the criminal.

They started the criminal proceedings.

Chief Justice Earl Warren: Yes.

Mr. Alfred E. Lindbloom: And that, they started the criminal proceedings, they issued a warrant or a ticket as they call them, against the company and against the officers of the vessel.

Chief Justice Earl Warren: Yes.

Mr. Alfred E. Lindbloom: And at that point, we filed the bill.

Chief Justice Earl Warren: Yes.

Mr. Alfred E. Lindbloom: And we allege in there that they're going to enforce the ordinance against us, and the city says in effect, they're going to force all, it's legally applicable.

So I think there's a fair inference that they will enforce the -- enforce the whole thing which it requires the inspection and also a sealing if you violate the ordinance criminally three times within the 12 months period.

Chief Justice Earl Warren: Do you -- has it been violated twice before and so found criminally?

Mr. Alfred E. Lindbloom: No this was the -- this (Voice Overlap) first --

Chief Justice Earl Warren: Yes.

Well then, in this -- in this action, they couldn't impose the final sanction of -- of tying that to your ship, could they?

Mr. Alfred E. Lindbloom: They couldn't but I mean I don't think there's any doubt that you would violate it more than three times within a year because as I say, the -- the smoke of the prohibited kind cannot be prevented with this -- with these boilers.

Our problem is that we -- we dock at Detroit.

It shows one of these vessels docked 26 times, we'll say the other one 22 times in a year.

And they're there for about 16 hours to two -- to a full day each time.

And every four hours, they have to rebuild the fire.

At that time there's smoke of the prohibited kind is apt to -- to come forth.

And on -- in fact, on the day in question, they were charged, each ship, with violating the smoke ordinance for -- from between nine and 10 minutes.

And --

Justice Potter Stewart: Is that when -- is that when their growing tubes as it's called or --

Mr. Alfred E. Lindbloom: Building a new fire, Your Honor.

Justice Potter Stewart: Is this a fire tube or water tube kind of boiler?

Mr. Alfred E. Lindbloom: That I am not sure, I think it's what you call a fire tube.

But I'm not wholly positive.

Justice Charles E. Whittaker: May I ask you, sir?

Do we have here any question of territorial jurisdictions?

In other words is Lake Erie within the city limits of Detroit?

Mr. Alfred E. Lindbloom: Well, the Detroit River, yes, which is a connecting river.

Justice Charles E. Whittaker: And that's where you offend the claim, is that it?

Mr. Alfred E. Lindbloom: Yes we're tied -- we -- we -- these particular offenses that we're charged with occurred when we were tied up at a dock in the Detroit River.

And the Detroit -- the City of Detroit jurisdiction extends to the middle of the river.

But all boats using -- engaged in the Great Lakes, going from one lake to the other must -- must use the Detroit River.

And there's apparently about 250 vessels on the Great Lakes are in the same predicament.

That is they're equipped with hand-fired Scotch marine boilers.

And as I -- I don't think that the trial court and the Michigan Supreme Court merely held that there -- there was no preemption.

Both of them paid no attention to the argument concerning the licensing.

It seems to me that under Gibbons versus Ogden where a license is granted, no one else can say that this license can be used only on certain conditions.

Justice Felix Frankfurter: May I ask you this question.

Do the -- do the examinations both by the Coast Guard and by the Bureau of Customs, they make separate examinations?

Mr. Alfred E. Lindbloom: I'm not too sure that the Bureau -- that the Custom makes much of an -- the Custom issues that only if the Coast Guard has already inspected.

Justice Felix Frankfurter: Now, does the Coast Guard inspect locally then it inspect -- it inspects --

Mr. Alfred E. Lindbloom: Yes.

Justice Felix Frankfurter: -- either in Detroit or wherever your boat --

Mr. Alfred E. Lindbloom: I think they do or -- or we go somewhere where they ask us to.

Justice Felix Frankfurter: But It's a -- it's a physical inspection --

Mr. Alfred E. Lindbloom: Oh, yes.

Justice Felix Frankfurter: -- and not a -- and not passing on -- on a written application?

Mr. Alfred E. Lindbloom: No, Your Honor, they -- it's a physical examination.

As matter of fact they sometime tear down the boilers.

Periodically, you got to tear down the boilers, you go to operate them when they're standing there watching you.

Justice Felix Frankfurter: Is there a Coast Guard division of whatever it's called, is there a-- Coast Guard stationed in Detroit or in the Detroit River?

Mr. Alfred E. Lindbloom: I -- yes.

I think this --

Justice Felix Frankfurter: Did the local people examine this?

Mr. Alfred E. Lindbloom: They're -- they're local employees of the -- yes, on the -- on page 41 of the transcript or I mean the record.There, the Commander, Mr. Hansen, Commander of the United States Coast Guard is -- is stationed at Detroit, Michigan.

And I think in there, it shows that the boiler, the mountings have been removed at certain times and different themes like that.

Now, it's a -- it's a good faith and a very careful examination.

Justice Felix Frankfurter: Well, I'm sure to -- I assume it's in good faith.

Mr. Alfred E. Lindbloom: Yes.

Justice Felix Frankfurter: What I want to know is --

Mr. Alfred E. Lindbloom: No, I mean it's more than a -- than writ.

Justice Felix Frankfurter: Because somebody who lives in Detroit, knows about Detroit ordinances, doesn't he?

Mr. Alfred E. Lindbloom: I would assume so.

I would assume so.

Chief Justice Earl Warren: Does the Customs Service certificate have anything to do with safety?

Mr. Alfred E. Lindbloom: I don't think so.

I mean I think --

Chief Justice Earl Warren: Then how is it pertinent here?

Mr. Alfred E. Lindbloom: Well, it's pertinent in this respect that it is a license.

That's --

Chief Justice Earl Warren: A license to do what?

Mr. Alfred E. Lindbloom: A license -- license is hereby granted for the said vessel, it's naming -- it names a vessel up above to be employed in carrying on the coasting and foreign trade for one year from the date hereon but no longer.

Chief Justice Earl Warren: Yes.

But isn't that only so far as the -- the Customs laws are concerned?

Isn't that all it's concerned with?

Mr. Alfred E. Lindbloom: No.

I think not, Your Honor, because under a statute, that license does not issue until the Coast Guard has completed their license and approved the vessel.

Chief Justice Earl Warren: But if the Coast Guard didn't -- didn't certify it, it couldn't?

It couldn't travel at all?

Mr. Alfred E. Lindbloom: That's right.

Nor would the (Voice Overlap) --

Chief Justice Earl Warren: So with the second.

So there'd be no necessity of the Customs Service bothering about Customs on the ship if it couldn't -- if it couldn't under the Coast Guard certificate use the coastline, isn't that right?

Mr. Alfred E. Lindbloom: That's right.

I mean --

Chief Justice Earl Warren: And --

Mr. Alfred E. Lindbloom: -- they're both, it's -- it's just two licenses.

Chief Justice Earl Warren: Yes.

But the second one means nothing in this case does it?

Mr. Alfred E. Lindbloom: Well --

Chief Justice Earl Warren: Because it doesn't deal -- it doesn't deal with anything but Customs.

Mr. Alfred E. Lindbloom: No.

I think it does more than that.

Chief Justice Earl Warren: What does it deal with?

What --

Mr. Alfred E. Lindbloom: It deal -- it deals with safety in this respect that -- but it delegates the safety function to the United States Coast Guard.

Chief Justice Earl Warren: Well, does the Customs Service have anything to do with safety?

Mr. Alfred E. Lindbloom: No.

Chief Justice Earl Warren: Then why do you say it depends upon the safety?

Mr. Alfred E. Lindbloom: Well --

Chief Justice Earl Warren: (Voice Overlap) that the -- that the Coast Guard certifies to?

Mr. Alfred E. Lindbloom: No, because under the statutes, you cannot -- the Coast -- the -- the Custom cannot issue that certificate until after the vessel has been approved --

Chief Justice Earl Warren: Yes.

Mr. Alfred E. Lindbloom: -- by the Coast Guard. (Voice Overlap) --

That's the only connection.

Chief Justice Earl Warren: I suppose that Customs Service is -- is interested in the operation of the vessel from the standpoint of -- of the Customs.

Mr. Alfred E. Lindbloom: I would assume that is right.

Chief Justice Earl Warren: And -- and I would assume nothing else unless there's something in the Act to -- to indicate something else.

Mr. Alfred E. Lindbloom: Well --

Chief Justice Earl Warren: But if -- if it cannot -- if it doesn't have the certificate of the Coast Guard and can't operate at all, then of course there's no -- there's no reason why the -- the Customs Service should -- should grant a certificate and isn't that the only reason that they require first a certificate of the Coast Guard?

Mr. Alfred E. Lindbloom: Well, that I -- I mean that maybe so, Your Honor.

I mean all I know is the statute says --

Chief Justice Earl Warren: Well --

Mr. Alfred E. Lindbloom: “And it shall not issue unless and until the Coast Guard issues a certificate.”

Chief Justice Earl Warren: But my point is this, if you are going to the question of preemption.

Mr. Alfred E. Lindbloom: The other one is --

Chief Justice Earl Warren: And use -- and using the second -- the second certificate as an argument that the Government has preempted it.

I suppose that the purpose of the certificate would have -- have something to -- to do with determining whether there was preemption so far as the emission of the smoke is concerned.

Mr. Alfred E. Lindbloom: I would -- I would assume that but I think it seems to me it goes -- might go a little bit further.

If the Federal Government gives a license that -- leaving out -- leaving out the -- the preemption that the Federal Government gives a license to use this vessel on navigable water can the city come along and say, "Well, you can use it only on our terms."

Chief Justice Earl Warren: Well, let's suppose this, that instead of this being a vessel, it was -- it's one of these big diesel trucks that goes along a -- an interstate highway and is authorized by the Interstate Commerce Commission to -- to go through the cities and it goes through the cities emitting just as much of that black smoke as it wants to emit without -- without any power in the cities to -- to restrain it?

Mr. Alfred E. Lindbloom: That I don't know.

As practical matter, it does [Laughs] but I mean they couldn't --

Chief Justice Earl Warren: Isn't the fact of the matter, the cities do, don't they?

Mr. Alfred E. Lindbloom: I don't know.

I mean I -- I would think that would be a little different, Your Honor for the -- for one reason if no other and that is that this Court has granted much greater control in respect to highways than you have to -- to sea water.

It seems to me that -- that our case is much closer to your -- to your Service Storage and Transfer versus Virginia which was just decided a short time ago.

Or that company had a -- a certificate from the ICC and there, Virginia found that it picked up goods and delivered goods in -- in Virginia through a point in West Virginia and -- and was found that that was a fraud and it was violating the Intrastate Carrier Act and fined it for $3500.

This Court said to -- to allow that fine to stand would be the same thing as a partial, a cancellation of the federal placements of the certificate.

Chief Justice Earl Warren: Well, suppose the issue we have here in that case was not the one we did have but suppose that the trains, they're running their trains 75 miles an hour through a -- through a thickly populated district, do you think the city would be prevented from -- from regulating the speed of that to conform to the safety of the public?

Mr. Alfred E. Lindbloom: No.

But like (Voice Overlap) --

Chief Justice Earl Warren: I said --

Mr. Alfred E. Lindbloom: I think, I think --

Chief Justice Earl Warren: Did have, more like what we've got here?

Mr. Alfred E. Lindbloom: No, no because -- because as I said, our vessels can with the equipment as approved in the license cannot at all times comply with the ordinance.

If -- you see, what I meant was, in my original bill, I asked that this -- that the city be enjoined except where the smoke was caused by our negligence or the improper use of the equipment.

I'm -- I'm claiming it only where this -- only where this -- offense of smoke cannot be prohibited, cannot be prevented with -- or with the equipment which we do have.

Justice Felix Frankfurter: In short of the -- short of it -- short of your case is, isn't it?

You've got a license to use a vessel with a particular equipment, if you have to supply -- if you have to obey the ordinance of Detroit, you couldn't use your vessel with the equipment.

You say you got a license from Uncle Sam to use that equipment and that license is controlling.

And therefore, the question is whether impliedly, there is power in the State and this is what it gets down to, to make regulation which, in and of itself is enough -- is a -- a regulation that the State may make for itself in welfare.

That's the problem, isn't it?

Mr. Alfred E. Lindbloom: Yes.

It's -- it's -- the problem is whether or not -- whether or the State -- the city's regulation may -- may limit the federal license.

I mean and -- and I'm also using the federal license as -- as indicating preemption of the field.

Justice Felix Frankfurter: Also, we first have to determine if the federal license really license you to do.

Mr. Alfred E. Lindbloom: That's right.

That's right.

Justice Felix Frankfurter: Whether it says you may use this vessel.

Mr. Alfred E. Lindbloom: Yes.

Justice Felix Frankfurter: We, the United States having superior power to say, “Go ahead and use this vessel no matter what anybody says about it because we're the boss.”

Mr. Alfred E. Lindbloom: That's right.

Justice Felix Frankfurter: And the other suggestion is that their implications to that -- that license.

May I ask you -- I do have a curiosity of what the Chief Justice said about the second license, the Customs.

I take it -- am -- am I right in inferring if it is the Coast Guard, even though the calling pass must of the Coast Guard when they issued your license.

The Bureau of Customs doesn't automatically have to give you its license, is that right?

Mr. Alfred E. Lindbloom: That's probably.

I think that's right.

Justice Felix Frankfurter: Now, what help is the Customs charged with?

In the first place, you can't use your vessel if you're not a -- with this Coast Guard's traffic, isn't it?

Under the Coast Guard's traffic law.

Mr. Alfred E. Lindbloom: Yes.

Justice Felix Frankfurter: Therefore, it's only -- it's confined to American citizens.

I suppose the coast -- Customs are concerned with that --

Mr. Alfred E. Lindbloom: That's correct.

Justice Felix Frankfurter: Are they not?

Mr. Alfred E. Lindbloom: Yes.

Justice Felix Frankfurter: It has to ascertain that.

Do they get any revenue?

Do -- do you pay by tonnage or whatnot for getting this license?

Mr. Alfred E. Lindbloom: I would think not, Your Honor, because we just hold for ourselves.

Chief Justice Earl Warren: We'll recess now, Mr. --

Featured:

Huron Cement Co. v. Detroit - Oral Argument, Part 2

Thu, 29 Nov 2012 22:24:26 +0000

Case:

Huron Cement Co. v. Detroit

Media File:

86_19600229-argument-2

Related Transcript:

86_19600229-argument-2

Transcript:

Argument of Alfred E. Lindbloom

Mr. Alfred E. Lindbloom: -- claiming that the license in and of itself was (Inaudible) although it is -- it is some evidence of -- of preemption.

Congress, in respect to steamships and in respect to vessels on navigable waters, it passed very elaborate regulations as this Court said in Kelly versus Washington --

Justice Felix Frankfurter: (Inaudible)

Mr. Alfred E. Lindbloom: -- you said provisions with respect --

Justice Felix Frankfurter: (Inaudible)

Mr. Alfred E. Lindbloom: -- the steam vessels are extremely detailed.

And they are.

They provide for the inspection of the hull, the lifeboats, the equipment on the vessels not only the boilers, but all the other equipment and specify the number of crew and so many seamen, so many pilots and so many mates and so on.

They're extremely detailed and it is my claim that by those acts, Congress has preempted the field that is that the control, the inspection and approval of steamships.

Therefore, the city --

Justice John M. Harlan: From what point of view?

Mr. Alfred E. Lindbloom: I beg your pardon?

Justice John M. Harlan: From what point of view?

Mr. Alfred E. Lindbloom: I -- well, I mean I would probably have to say safety.

Justice John M. Harlan: Safety.

Mr. Alfred E. Lindbloom: But I don't think that the point of view makes any difference if they preempted -- if they preempted the entire field of -- of inspecting and approving vessels whether -- whether -- I don't think it makes any difference what point of view you referred to as this Court said in Napier versus Atlantic Coast Guards, they say hoarding because the standard set by -- by the Commission, that's the ICC, must prevail.

Requirements of the State are precluded however commendable or however different their purpose.

So, it's my contention that Congress has preempted the field and therefore, the city cannot come along and say, “Here, you got -- your -- your equipment is subject to inspection and approval by us,” when it's already been inspected and approved by the Coast Guard.

And as to the penalty provisions, I claim that inasmuch as the penalty provisions can only be -- can only be complied with by changing your equipment, therefore, they are specifying the kind of equipment that we may -- we must use.

In other words, we can only use that equipment which complies with the Detroit ordinance.

And keep -- bearing in mind that Congress has already preempted the field of the control of -- of vessels and their equipment.

Justice Felix Frankfurter: Where -- where is the license of the Coast Guard?

Is that printed in the record?

Mr. Alfred E. Lindbloom: Yes.

That's that photo stamp that's attached to opposite page -- you have it in your hand.

Justice Felix Frankfurter: That's (Inaudible) is it?

Mr. Alfred E. Lindbloom: Oh, the Coast Guard?

I'm sorry.

The Coast Guard starts on page 38.

Justice Felix Frankfurter: 38.

Mr. Alfred E. Lindbloom: And it -- for the next four pages -- or next three pages.

Justice Felix Frankfurter: How do they say -- do they merely certify that your equipment is safe or do they specifically certify that you may use this vessel, which?

Mr. Alfred E. Lindbloom: They say -- they don't say it's safe.

Justice Felix Frankfurter: Where is it?

Mr. Alfred E. Lindbloom: Down in the bottom of page 39, they say the said vessel is permitted to be navigated for one year on the Great Lakes.

Justice Felix Frankfurter: In other words, they -- they -- whatever this is worth, it's an authorization for the vessel and not a certification of its safety.

Mr. Alfred E. Lindbloom: That's right.

And it is my contention that the inspection provisions, in respect to vessels, are as broad as the boiler inspection for the railroads.

And this Court in Napier versus Atlantic Coast Guard -- Atlantic Coast Line there, two States came along and wanted some additional equipment put on, put on the -- the locomotives.

This automatic door and a cabin curtain, not changing the equipment, they're putting on something addition, something which the Interstate Commerce Commission had not ordered.

And this Court said that the Congress by the Boiler Inspection Act had preempted the field.

I claim that same reasoning is true here.

And therefore, those two state statutes were invalid.

Justice John M. Harlan: Your preemption -- your preemption argument goes to the extent of saying that every time that the Coast Guard licenses a vessel to operate in navigable waters, that means the State is removed from any kind of local police control.

Mr. Alfred E. Lindbloom: No.

No, it doesn't.

No, no, Your Honor.

The point I'm trying to make -- again, making myself clear yet.

If -- if you can comply with the local police regulations with the vessel as licensed, obviously, they'd have to comply with it.

Justice William O. Douglas: For example, what you -- what you point -- I suppose, your real point of emphasis is on page 41 of the record where the Coast Guard officer specifies the type of boilers that you have for use and the type of fuel that you have for use.

Mr. Alfred E. Lindbloom: Yes, yes.

They know that.

They have approved that.

Justice Felix Frankfurter: But you're different as to -- which is different from requirement of speed for safety, because although this local law may cut down your speed, you still can use it.

Mr. Alfred E. Lindbloom: We can still use our equipment.

Justice Felix Frankfurter: And you don't say you may use the vessel that can only -- that you may use this vessel at any speed.

They say you may use this vessel.

Mr. Alfred E. Lindbloom: That's right.(Voice Overlap) --

Chief Justice Earl Warren: How about -- how about the -- the diesel -- big diesel trucks?

Certainly, the -- the local communities and the States can have something to say about the smoke they emit and what's the difference between that and -- and the situation that Justice Frankfurter has just spoken to you about?

Mr. Alfred E. Lindbloom: Well, I think there's this distinction as a -- as a point -- I mean, I think, there's this distinction.

This Court has -- has granted the States much greater leeway in the control of the speed and the safety on highways and you -- you frankly, just about made an exception as to -- to highways and Railway Express versus New York.

Chief Justice Earl Warren: No, but I -- I don't think that's -- that isn't the point that I'm trying to make.

This -- this big diesel trucks, if they don't have something on the -- on their exhaust, emit this -- this smoke as they go along in the highway to -- to the -- the detriment of traffic and to create smog conditions and other -- other things of that kind.

And -- and probably they can't operate without doing that, unless they put some attachment on their -- on their truck.

But if they do put in -- an attachment on there, they can diffuse that smoke, so that it doesn't create those hazardous conditions.

Now, what is the difference between -- if -- if I'm correct in that, what is the difference between compelling him to put something -- some equipment on their automobile to control that -- that smoke on the one hand then on the other hand, requiring you to do somewhat similar thing with your boilers --

Mr. Alfred E. Lindbloom: No --

Chief Justice Earl Warren: -- to accomplish the same purpose.

Mr. Alfred E. Lindbloom: Well, it's more than just putting something on.

It's putting in an entirely different boiler.

Chief Justice Earl Warren: Well, it's a question -- maybe a question of degree, but we're going here to power -- to the question of whether the Federal Government has preempted this field and whether the State has any power at all.

Mr. Alfred E. Lindbloom: I think -- I think there's another answer to Your Honor's question that has slipped me for a moment.

I think this Court has found under the -- under the Motor Carrier Act that Congress has not preempted the field as to, you know, size, roads and -- and control of the highway.

I think they've expressly left that to the State.

I think that's your distinction.

Chief Justice Earl Warren: But there is nothing in -- nothing in this Act as you have said -- you have told us that specifically shows that they've covered this situation either.

And there's nothing in their inspection practices or in their regulations that show that they -- they have any concern with this.

And why doesn't that bear on the question of preemption in the same way as -- as that you have described?

Mr. Alfred E. Lindbloom: Well, no.

No, because as to the motor vehicle, I think Congress expressly said we are not, we are not taking this -- the -- we're not taking the control -- control of the highways away from the local authorities, the control of -- of the use of the highways.

Justice Charles E. Whittaker: I think this is good, isn't it, that the Congress decided about it, but authorized the Commissioner on transport regulations and the Commission has never passed any such (Voice Overlap) --

Mr. Alfred E. Lindbloom: That's probably it.

I've --

Justice Charles E. Whittaker: We have just the matter (Inaudible)

Mr. Alfred E. Lindbloom: And that is different from here.I mean, here, I grant you -- I grant you the -- the federal inspection law, do not use the word, “smoke.”

Justice John M. Harlan: Could I ask you this question, sir, was there any evidence in the record that in order to equip the vessel, so as to comply with the smoke ordinance, that by so equipping the vessel that the -- that kind of equipment will run afoul with some federal regulation as to the kind of equipment the vessel --

Mr. Alfred E. Lindbloom: No.

Justice John M. Harlan: -- must have?

Mr. Alfred E. Lindbloom: No.

Justice John M. Harlan: Nothing of that kind.

Mr. Alfred E. Lindbloom: No, no.

Justice Charles E. Whittaker: Did I understand you, if I may ask again.

In answer to Mr. Justice Douglas' question, that page 21 specifies the type of boiler and fuel that you must use?

Mr. Alfred E. Lindbloom: No, that we may -- I think here -- I think he said, “may.”

Justice Charles E. Whittaker: And the words with “may?”

Mr. Alfred E. Lindbloom: Oh, yes.

I don't think there is any requirement, but then, we have to -- but they -- well, I mean, yes and no.

What I mean is to comply with these particular license, we have to use this -- this vessel because that's the one that's approved.

I mean this boiler, because that's the one that's approved.

Justice William O. Douglas: If you wanted to put an all -- an oil burner and you get to that -- get a new certificate.

Mr. Alfred E. Lindbloom: That's right.

That's right.

I mean this particular certificate that we -- we have to use.

Justice Charles E. Whittaker: In that sense, that is non-applicable?

Mr. Alfred E. Lindbloom: Yes.

In that sense, yes, but I -- there is no doubt, we could get another certificate to be put on an oil burner.

I'm not (Inaudible) to mislead you.

Now --

Justice Charles E. Whittaker: As your point -- and my point is that as I understand it, that you would have this certificate to get license for a period of a year.

And your argument then follows that you don't have to get another so long as -- as this one's good.

Mr. Alfred E. Lindbloom: That's -- that's as far as the license argument go.

I'd say yes.

I mean, I'm arguing two things.

One, the -- in that -- the license per se and also the preemption that the license is the final step in the -- in the inspection and the approval of all the equipment and therefore, Congress has preempted the entire field of vessels and their equipment.

Do I make myself clear?

Justice Felix Frankfurter: They're not two steps, if I may say so.

It's because the license -- your argument is, is because the license came out the federal statute and the license has particularity as to what you're authorized to do, that therefore, there is preemption.

It isn't that you have a license and preemption.

Mr. Alfred E. Lindbloom: Well, I would beg --

Justice Felix Frankfurter: Preemption derives from the license, unless the statute itself, preempts.

Mr. Alfred E. Lindbloom: Well, I think the -- I think the statute itself preempts by the completeness of its control of the vessels and their equipment.

Justice Felix Frankfurter: Are you sure -- are you sure that the Coast Guard wouldn't, in the license, say subject to the regulations, if there were regulations and whatever health measures, the city -- the -- the port of arrival may impose, couldn't they do that?

Mr. Alfred E. Lindbloom: There's nothing in the statute that authorizes them --

Justice Felix Frankfurter: There's nothing that denies it, but couldn't they do that?

Mr. Alfred E. Lindbloom: Well, I mean --

Justice Felix Frankfurter: Anyhow, we haven't got that case here.

Mr. Alfred E. Lindbloom: No, I think -- I think that --

Justice Felix Frankfurter: We'd have a very different case, I think.

Mr. Alfred E. Lindbloom: Yes.

I think, you only have the right to clear what -- what statute authorizes them to --

Justice Felix Frankfurter: Yes, but if statute doesn't -- what other pieces of writing didn't [Laughs] -- all includes this.

Mr. Alfred E. Lindbloom: Now, as I say in the -- getting back to this Napier case and refers to the Atlantic Coast Lines, there, the boiler -- the Boiler Act, it was held -- preempted the appeal.

Now, to get to this license for just one minute --

Justice Charles E. Whittaker: May I ask you right on that point, isn't that the Boiler Instruction Act, more specific to the question involved in the Napier case, that is that law which distract in pertinent instruction by the Coast Guard as applied to inland vessels?

Mr. Alfred E. Lindbloom: I'm not quite sure.

I mean, it doesn't apply -- it is limited to inland vessels.

Justice Charles E. Whittaker: No.

But was not the Boiler Inspection Act involves, I understand, the Navy?

Mr. Alfred E. Lindbloom: Yes, Your Honor.

Justice Charles E. Whittaker: As to what must be contained on that engine?

Mr. Alfred E. Lindbloom: Yes.

Justice Charles E. Whittaker: And the State sought to require something efficient?

Mr. Alfred E. Lindbloom: I don't believe so.

I think that case -- ICC, the right to specify what should be on the --

Justice Charles E. Whittaker: And they haven't done so.

Mr. Alfred E. Lindbloom: And they haven't done so.

Justice Charles E. Whittaker: And not that they have not -- not --

Mr. Alfred E. Lindbloom: Not done so.

Justice Charles E. Whittaker: Not done so.

Mr. Alfred E. Lindbloom: That's the way I understand it.

Now, getting to this license business for just a minute, as I said earlier, in this -- in this Service Storage and Transfer case, there -- there the storage company was charged with just carrying 3% of its freight in intrastate and they were fined $3500, and this Court held that to have sustained, that fine would be tantamount to a partial cancelation of the license.

It seems to me that language is very applicable here and in the Castle versus Hayes Freight Line case, there -- there, the freight line had been overloading in violation of the state law and there was no doubt that the State had the right to pass such a law and they barred -- the State barred the -- the carrier from use of the highway.

And this Court said, “You couldn't do that because they have a federal license certificate and they have the right to use the highway even though they have violated the state law.”

And in both of those cases, the carrier could comply with the state law with the equipment of which he has had.

One case, it wouldn't have to carry freight from Virginia to Virginia and the other one, it didn't have to overload.

But here, we have -- here we have a different thing and it seems to me that a little bit of language from Hill versus Florida is -- is rather applicable to our situation here.

There you -- there, this Court said that “But here, the agent has been enjoined and if the Florida law is valid, he could be found guilty of a contempt of doing that which the act of Congress permits him to do.

Here, we could be found guilty of violating the -- violating the smoke ordinance when Congress has permitted us to do so.

Justice Felix Frankfurter: The -- in Hill against Florida, the act of Congress couldn't say that someone who's been convicted of a crime can't be a union official, did it?

Mr. Alfred E. Lindbloom: No.

Or you what -- this Court held that that was the -- the --

Justice Felix Frankfurter: This far --

Mr. Alfred E. Lindbloom: -- freight and they implied, yes.

But here, we have -- here, we have a direct statement that this vessel maybe used.

Then, of course, my second argument --

Justice Felix Frankfurter: Will on that act --

Justice Charles E. Whittaker: Would the State -- would the City of Detroit have the right by ordinance to exclude this licensed vessel from carrying deceased persons in the city limits?

Mr. Alfred E. Lindbloom: Well, I would assume so, yes.

Justice Charles E. Whittaker: Well then, that would be requiring you change of structure as you answered in answer to my argument about going slower --

Mr. Alfred E. Lindbloom: That's right.

Justice Charles E. Whittaker: Now then, what's the difference between that power and the power to stop the spread of gases and smokes that might cause disease?

Mr. Alfred E. Lindbloom: Well, the -- the whole difference is -- I mean, I'm claiming that Congress and by the -- by the vessel inspection acts themselves and also by the license, have preempted the field to the extent of excluding the city.

That's my argument.

Justice Felix Frankfurter: But you given earlier the practical difference.

You can slow a vessel and it can still go.

Mr. Alfred E. Lindbloom: Yes.

Justice Felix Frankfurter: But this vessel, as equipped, can't go --

Mr. Alfred E. Lindbloom: That's right.

Justice Felix Frankfurter: -- if you obey the ordinance.

Mr. Alfred E. Lindbloom: That's right.

And my second argument is that the Commerce Clause in and of itself, preempts the fields where uniformity is necessary.

I claim, I'm talking about uniformity of equipment.

The city and I differ as to what should be uniformed.

They talk about uniformity of smoke control.

I -- I grant you that that doesn't require a uniform treatment.

But it seems to me that the equipment on the vessels must be uniformed and I point to Morgan versus Virginia and Southern Pacific versus Arizona, Kelly versus Washington and Friedman versus New York.

And it seems to me that those cases all hold that where -- where your equipment is necessary, in the constitutional sense, that is useful, for the purpose for which it is intended that requires uniformity and therefore, the city is precluded from passing an ordinance which would make us use something different -- or -- or precludes the city from passing an ordinance governing that -- the equipment.

Chief Justice Earl Warren: Mr. Hathaway, you may proceed.

Argument of John F. Hathaway

Mr. John F. Hathaway: Mr. Chief Justice, if the Court please.

The City of Detroit adopted the smoke ordinance in question about 13 years ago and approximately a little of four years ago, issued the violation that is in question in here and pursuant to the provisions of the ordinance in question here.

The violation that we issued was a violation that stated that the appellant, in this case, issued smoke in violation in Section 2. 2A, which limits the emission of smoke in -- to a certain density.

The provision is governed pursuant to a Ringelmann Chart which provides that you cannot issue -- smoke cannot be emitted to any greater density than would be showing at a No. 2 Ringelmann chart.

This is a standard form of rate of measuring smoke for the purposes of a Smoke Abatement Code and it's probably in effect in all 48 States and probably on every industrial community in the country.

Now, after we issued the violation, the plaintiff went into the Circuit Court.

Plaintiff or appellant here, went into the Circuit Court of the County of Wayne and asked for an injunction to restrain us from enforcing the ordinances as to him, claiming that he was engaged in interstate commerce.

That is ship had been approved by Coast Guard pursuant to the federal regulations and that he could be prosecuted, but only for the negligent operation of that equipment, combustion equipment, which is -- the smoke the issue is from.

Now Circuit Court of the County of Wayne determined only one question.

They determined that the ordinance was a reasonable regulation and that the city had the right to issue that violation, in question, and prohibit the emission of dense smoke.

And this was affirmed by the Supreme Court of the State of Michigan.

Now, the appellant is before this Court arguing that question of preemption.

I think that the general -- when you consider the general rules of preemption, this Court has determined that when there's an actual conflict shown or there is a repugnancy, or if Congress has manifested the clear intent to regulate the field that you're talking about, then the cities or states do have the right to adopt the regulation.

Now, first of all, when you consider the regulation in question and the federal regulation, I don't think Congress concerned themselves in any way with the emission of smoke and that would be -- I mean, there's no provision within that regulation.

The original regulation, in answer to a question here, was adopted in 1871.

In this regulation, from checking the various sections of that code, only goes to the question of the equipment of that ship.

They make a thorough inspection of that ship from the hull to the combustion equipment, to the lifeboats and every other boat, only for the purpose to determine that that boat can leave the dock and travel in safety.

And for no other purpose, this was the intent of Congress.

Justice Felix Frankfurter: How do you know that?

Mr. John F. Hathaway: Well --

Justice Felix Frankfurter: Did they tell you?

Did they tell me?

Mr. John F. Hathaway: I would say --

Justice Felix Frankfurter: I'm not saying you're not right.

But I just wondered how you know what they intended (Voice Overlap) --

Mr. John F. Hathaway: Well --

Justice Felix Frankfurter: -- when they don't intend it.

Mr. John F. Hathaway: I do -- by -- by reading those reports, the United States Code Annotated, they point out the information that was put from the congressional reports in there.

Where they --

Justice Felix Frankfurter: Do they say -- do they say --

Mr. John F. Hathaway: -- state that just because to limit the disaster at sea.

Justice Felix Frankfurter: Well that -- that --

Mr. John F. Hathaway: And they point out, when they amended them this year, that this was the purpose and the purpose of further amendments of code has been to limit disaster at sea and (Voice Overlap) --

Justice Felix Frankfurter: But this Court has held several times that although an Act of Congress does not cover the subject matter of the statement legislation, Congress meant that to be free of anything, but federal legislation and in the (Inaudible) the reason they found it, it doesn't mean to regulate the boats.

You've said that again and again.

You don't have to have -- that you can't -- that the State isn't free to regulate as to subject matters not included within, the legislation of Congress has that.

This Court has said that again and again.

If the Congress intended, could anyone fairly say from reading the legislation or the legislative history that (Inaudible) not to prohibit (Inaudible) of becoming union officials and yet this Court held that is to be implied.

I didn't mean to --

Mr. John F. Hathaway: No attempt --

Justice Felix Frankfurter: (Inaudible) all I can say is that these are the only set of questions for both or you suggest the Court --

Mr. John F. Hathaway: No.

Justice Felix Frankfurter: Does that merely infer (Inaudible) but on this -- also the local (Inaudible) an actual grant of (Inaudible) solution.

Chief Justice Earl Warren: Mr. Hathaway, to deal with a legislative history of (Inaudible) in your -- in your brief.

Mr. John F. Hathaway: Now, not as to the (Inaudible) question, merely, but the legislators to ever deal that was -- it was an act of Congress passed in 1955.

Which an appropriation statute for that purpose (Inaudible) funds (Inaudible) various communities (Inaudible) --

Justice John M. Harlan: (Inaudible)

Mr. John F. Hathaway: Second District would not be able to comply with our ordinance.

Justice Felix Frankfurter: 60 did you say?

Mr. John F. Hathaway: (Inaudible)

Justice Felix Frankfurter: 60%

Mr. John F. Hathaway: Well, no.

I'm --

Justice Felix Frankfurter: Well I'm sorry (Voice Overlap) --

Mr. John F. Hathaway: It's a rough guess.

Justice Felix Frankfurter: The size of a figure.

Mr. John F. Hathaway: Yes, I think.

Justice John M. Harlan: Would not be able to comply.

Mr. John F. Hathaway: Under all conditions.

Justice John M. Harlan: Well, I don't understand that.

Mr. John F. Hathaway: Well, the steamship in question, here, could proceed through the Detroit River and comply with our ordinance.

However, the hand-fired Scotch marine boiler that (Inaudible) and when they're in the (Inaudible) question here, they had been pumping this black smoke out for approximately nine minutes.

Justice John M. Harlan: Now what -- what's the smell?

Mr. John F. Hathaway: That -- to maintain their continued pressure to run a self-unloader -- the self-unloader is -- let me see, well, it's a conveyor type system that is put upon the ship to dip the equipment, whatever it is -- like this, on this particular ship, get cement out of the car -- out of the cargo hauls and put it up unto the shore at -- at some point.

This is --

Justice John M. Harlan: Well, what's -- what is the other kind of equipment in contrast to the Scotch boiler that would have to be --

Mr. John F. Hathaway: Well --

Justice John M. Harlan: -- installed here to meet --

Mr. John F. Hathaway: It does not have to change the boiler.

Justice John M. Harlan: Yes.

Mr. John F. Hathaway: It continue to use the boiler in question here, but he wouldn't have to install like an under -- underfeed stoker.

Justice John M. Harlan: All right.

Now, are there --

Mr. John F. Hathaway: (Voice Overlap) --

Justice John M. Harlan: -- are there -- are there other ships that have the underfeed stoker that have been licensed by the Federal Government to operate?

Mr. John F. Hathaway: Oh, yes.

I mean --

Justice John M. Harlan: There are?

Mr. John F. Hathaway: I think, in the record would show that there was some steam liner and testified that he'd installed it on approximately 28 ships in the past three or four years at the time of the testimony.

Justice John M. Harlan: And those have been federally licensed ships?

Mr. John F. Hathaway: Oh, yes.

Oh, there's no question I think that Mr. Lindbloom would agree that he could change his equipment anytime he wants.

I mean -- and they would be approved by the Coast Guard.

Justice John M. Harlan: And, of course, it's -- it involves some --

Mr. John F. Hathaway: I mean to --

Justice John M. Harlan: -- expense, naturally.

Mr. John F. Hathaway: Yes, that's true.

Justice Hugo L. Black: What would it be?

Mr. John F. Hathaway: Well, they testified that at the trial and I think it was -- uncontroverted that approximately somewhere between $75,000 and $100,000.

Justice Felix Frankfurter: Mr. --

Chief Justice Earl Warren: How big are these ships?

Mr. John F. Hathaway: Well the ship's -- I'm not so sure though, the exact length of the ship (Voice Overlap) --

Chief Justice Earl Warren: Three to 100 feet.

Mr. John F. Hathaway: Three to 100 feet, the ships go on the Great Lakes to anywhere from 250 feet to 600 feet.

Justice Charles E. Whittaker: (Inaudible)

Mr. John F. Hathaway: Not --

Justice Charles E. Whittaker: (Inaudible)

Mr. John F. Hathaway: No, that is not true.

I said this is where he would be sure to violate the ordinance when you -- the operating the self-unloader.

The violation, of course, when the -- when they talk about the Scotch marine boilers such as he has here, it's the (Inaudible) aboard the ship which throw the coal in with shovels and this is what -- where you get your incomplete combustion is when, which they call green coal hits the top of the -- or the hot coals that the heat that is generated there carries it up the flue or up the stack, carries small particles which -- which I indicate, are black smoke.

The underfeed stoker brings in the coal in from the bottom and before it reaches the top of it, more complete combustion.

Justice Felix Frankfurter: Mr. Hathaway, could the Coast Guard decline to issue a certificate for a ship or the vessel equipped that this one was with the Scotch.

It is Scotch because they're (Inaudible)

Mr. John F. Hathaway: Well, I think they were -- I think they were invented in Scotland, it wouldn't --

Justice Felix Frankfurter: But could they -- could they decline to issue a certificate, a license for a vessel thus equipped --

Mr. John F. Hathaway: (Voice Overlap) --

Justice Felix Frankfurter: -- Coast Guard?

Mr. John F. Hathaway: The Coast Guard.

No, I think they can answer your question two ways that the legal district officer for the Coast Guard states, no.

They have no control over the question of emission and smoke.

I mean, it is not whether -- I mean that's --

Chief Justice Earl Warren: Who says that --

Mr. John F. Hathaway: (Voice Overlap) his opinion.

Chief Justice Earl Warren: (Voice Overlap) effort.

Mr. John F. Hathaway: Well, it -- that's the legal district officer -- legal Coast Guard district officer.

Chief Justice Earl Warren: Yes.

Mr. John F. Hathaway: And he claims that they have no method of regulating the emission of smoke.

Justice Felix Frankfurter: Where?

Justice John M. Harlan: Where is that?

Mr. John F. Hathaway: That is located in the appendix?

Justice John M. Harlan: Where does that that appear?

Mr. John F. Hathaway: It's in the -- it's on page 5 (b) of the appellees' appendix.

Justice Felix Frankfurter: Oh, yes, just a second.

Justice John M. Harlan: Could I ask you a question of whether -- you say 60% or roughly -- roughly 60% of these ships are not equipped to comply with the -- with the Detroit ordinance, that --

Mr. John F. Hathaway: Well, no.

When I'd say 60%, I don't -- not all -- I'm talking about the whole fleet, marine fleet.

Justice John M. Harlan: Yes.

Mr. John F. Hathaway: Both Canadian and American --

Justice John M. Harlan: Yes.

Mr. John F. Hathaway: -- that operates on the Great Lakes.

Now, many of these ships are canalers that do not come into our area.

What percentage of those ships that come into our area, I have no way of telling.

And in the records, it's passengers -- I mean it's approximately 20,000 passengers a year, through the Detroit River.

Justice John M. Harlan: Well, what are you trying to get at is it is -- is it a -- you -- you have trouble with the enforcement of this ordinance?

Do you enforce it are you --

Mr. John F. Hathaway: Yes.

Justice John M. Harlan: (Voice Overlap) about it or what?

Mr. John F. Hathaway: Well -- I mean, a smoke ordinance is not there.

We don't just issue tickets.

I mean, primarily, what you do is issue notices of violation first.

I mean, because there are many problems and being a local regulation with our own people, I mean, you're forcing people to spend a million dollars in the City of Detroit to change some of their equipment.

And, I think in this County of Los Angeles, the oil industry has spent probably $40 million changing certain equipment.

Justice John M. Harlan: Well, what governs your -- what -- what governs you in issuing --

Mr. John F. Hathaway: Well --

Justice John M. Harlan: -- this notice of the violation?

Mr. John F. Hathaway: Well, that could be -- certainly, this notices of violation, we then try to arrange conferences between the people that own the various equipment --

Justice John M. Harlan: And --

Mr. John F. Hathaway: -- and just ask them, if they would be able to do anything.

Well, and we start out from that point and they start changing their equipment or doing whatever is necessary to try to bring the smoke down to where it could comply with our ordinance.

And then --

Justice John M. Harlan: And in the most instances, do you work it out?

Mr. John F. Hathaway: In most cases, yes.

Now, as to the regulation of vessels, it's very difficult for the City of Detroit to enforce this ordinance for the simple reason.

When a vessel is on the Detroit River, you can never tell without a range finder or unless it's in a specific location whether or not the -- the ship is on the American side or the Canadian side.

Now, we do not have any jurisdiction on the Canadian side of the river and it would be up to the Canadian Government to enforce their regulations as to air pollution on that side.

There's only a certain specific location in the Detroit River although a ship might proceed the whole length of the river, emitting this smoke.

If they are emitting smoke at this one specific location, when we know for sure that they are on the Detroit side of the river, and we know this because the water in the Canadian side at this point is so shallow that they could not proceed through there.

We then give them a ticket.

And we don't always prosecute on those tickets.

If they would come into our bureau and put themselves to that bureau before, to discuss the matter to see what could be done if directed -- this -- this matter by continuing violations.

Because we know that they do have a problem and we do give them time and that we like the railroads in changing over from steam to diesel and I'm speaking specifically of the railroads that do the switching within the City of Detroit, we give them a period of approximately eight years we agreed that they would take eight years to change their equipment.

Because I mean, you just can't win it.

Have railroad pull 40 to 50 switch engines out of business and leave them with nothing to operate with, so, I mean that's it's -- it's -- make -- have to make adaptation of the ordinance.

Justice Charles E. Whittaker: I'm caused to wonder how consistent you have been in -- in applying this ordinance to the shipowners, if 60% of them still are not able, under certain conditions, to apply -- to comply.

Mr. John F. Hathaway: Well, this example, Pittsburgh Steamship Company has approximately 20 ships and about 10 of them comply -- when I talk -- when you talk about comply -- I mean, by -- by that we mean, able to comply with our emission standards and our code.

They say they -- they will change the other ships.

The rest of the fleet will change.

I mean, we're having this problem.

Many will change, if the others would change, but nobody wants to spend their money unless the other ships in the same classification will spend the money.

Justice Charles E. Whittaker: So, you're arguing that starts somewhere.

Mr. John F. Hathaway: Well -- well, yes.

It's kind of a two-headed --

Justice John M. Harlan: How many States do you know have these smoke ordinances at this time?

Mr. John F. Hathaway: Well, I'm going to talk about first -- I think almost every State has -- some of the cities within almost every State in the union have this smoke ordinance.

Justice John M. Harlan: Well, I'm (Inaudible)

Mr. John F. Hathaway: Now, let's talk about navigation.

Justice John M. Harlan: Navigation.

Mr. John F. Hathaway: Well, I know that the City of New York has, the City of New Orleans, the County and City of Los Angeles, and then they have in San Francisco, they have what they call a Bay Area ordinance.

It's an application of probably six counties which was adopted pursuant to a state regulation out there.

Now, these, l know, for sure because we worked with these people and the City of New Orleans, I know, from the opinion of the Attorney General of the State of Michigan where he contacted the district legal officer of the United States Coast Guard where he stated about the -- the problems in the City of New Orleans in enforcing their ordinances to ships.

Justice John M. Harlan: Are they -- they collected, in your brief, the references to the other ordinance?

Mr. John F. Hathaway: No, because I didn't -- probably it wasn't exactly --

Justice William O. Douglas: What did you say --

Mr. John F. Hathaway: -- contained within the record.

Pardon?

Justice William O. Douglas: Why did you say to the appellant's argument that refers on page 42 of his brief in the New York (Inaudible) four of these -- these ship -- the question that is applied to the Court and then two weeks later, adopted New York, might rather follow what New York did.

Mr. John F. Hathaway: Yes, this helped.

Justice William O. Douglas: Is that true?

Mr. John F. Hathaway: This is true.

You -- any equipment can smoke.

You can take the finest oil burning equipment and if you don't operate it right, in other words you have to have a mixture of oxygen and the fluid that you're burning of just the proper mixture.

I mean, the United States Navy could take their whole fleet from -- I think, from San Diego to the harbors of Japan and never allow any smoke to be seen on the horizon.

I mean, this is not an impossible situation.

But, if you come in and something goes wrong with the equipment, then they're liable to smoke or if it's operated carelessly, it would smoke.

Now, in the -- he points out about the Queen Mary.

Justice William O. Douglas: Yes.

Mr. John F. Hathaway: As this one.

Now, in that case, what happened there, they point out that it -- at least the Supreme Court of New York did that this steamship was not immune from prosecution.

They could be prosecuted, but the lower court did not allow this -- the Queen Mary to -- to interject a defense that at the time that the smoke was emitted, some equipment had been broken down or a situation existed where they could do nothing but smoke.

I mean, that seems to be reasonable.

Justice William O. Douglas: All -- all the ship in -- of ours here in Detroit installs in the underfeed stoker, then goes to New York, would it be subject to prosecution in New York?

Mr. John F. Hathaway: No, it could comply.

There is not any regulation that I know of that is more stringent than the No.2 Ringelmann requirement, as -- as set forth in our ordinance.

A little -- I've heard testimonies that there was but, I don't know of any ordinance.

Chief Justice Earl Warren: In other words, Mr. --

Mr. John F. Hathaway: (Voice Overlap) --

Chief Justice Earl Warren: Oh, pardon me.

Justice William O. Douglas: There is some suggestion in this -- in this record that -- that you can -- you can spend his 10 or 20 or whatever thousand dollars if -- to comply with -- with Detroit to enter into another harbor, he might -- he might be in trouble there.

Mr. John F. Hathaway: Well --

Justice William O. Douglas: And I think the reference was to the underfeed stoker, but I'm not sure.

Mr. John F. Hathaway: Yes.

But my explanation for that is, let's assume for the sake of argument that an -- a city adopted a more stringent regulation that could not be complied with, we'll say, with an underfeed stoker.

If it could not be complied with an underfeed stoker, I don't think it can be applied within the boiler either.

I don't think.

This I'm not too sure.

However, if that ordinance that was reasonable, as to that community, for the necessary -- and necessary for the health of those citizens, I think that that type of regulation should be more stringent.

Maybe you would have to change this equipment again.

In the City of Los Angeles, they have developed an ordinance which goes beyond almost anything.

They still provide for this No. 2 Ringelmann.

It's the same type of density.

But what they have done, they have provided for what they call an alert system where they -- as that smog in that area continues to get thicker, they will then notify certain people and they will the announcements on radios and other types of publications to request that people will quit driving.

After they go through so many alert systems and when they reach the final system, they provide for a notice to the governor and then the governor -- this is what it says, but in effect, it amounts to like martial law.

Or they're going to trucks off the street and the automobiles and people will be refused permission to drive until that smog has either raised (Inaudible) that he's presented here -- the steamships could go into the harbors at Los Angeles and while they were carrying people to the hospital, he would be able to say, “We're awfully sorry about -- we're going to have to continue the smoke.”

No, I don't think that the Commerce Clause was intended to be anything more than that there would be for the general welfare of all the people of the country.

In other words, the Commerce Clause, I think, should be interpreted that it benefits all of us and that it would -- and there should be no barriers put up to stop the free flow of commerce.

But I don't think it should be turned around and say, “Well, while it's benefiting certain people, the others must all suffer a detriment to their health.”

I don't think that the Commerce Clause has provided that we can protect the concrete on -- on our streets.

We can't protect their lungs in this type of contamination and air pollution.

Chief Justice Earl Warren: Well, Mr. Hathaway, last -- in our last term, we had a highway case where we struck down a law of the State of -- of Illinois under the Commerce Clause and in that case, the State of Illinois required certain equipment on trucks that flaps on them for rainy weather, for bad weather.

Now, the -- the contention was -- contention was made on the part of those who were attacking the ordinance that if they complied with this Illinois law as soon as they got over into -- into Arkansas, that that equipment would be illegal and that because of that, it was -- it would be a burden on commerce.

Now, do you have anything of that kind in this -- in this case?

If these people complied with the Detroit City ordinance, would that very compliance with your Detroit ordinance make this illegal in any part of the United States, so far as you know it?

Mr. John F. Hathaway: Oh, no.

Chief Justice Earl Warren: Well then that --

Mr. John F. Hathaway: No, I mean, our ordinance --

Chief Justice Earl Warren: I don't -- I don't argue with that.

Mr. John F. Hathaway: No.

Chief Justice Earl Warren: I just --

Mr. John F. Hathaway: Our ordinance sets up a particular standard of emissions and which, under certain conditions, they can emit more smoke or less smoke at a given time depending on what you are doing at that time.

Almost every -- they couldn't -- if he lessens his -- the output of the smoke, he could not then be in violation of another community, because, I mean, that would be their purpose, too.

The only purpose of any regulation is to limit the emission of smoke.

And I mean, if you -- if I -- if the City of Detroit is instrumental in making the instrument then our state commerce emit less smoke, it could not necessarily be in violation of another community.

Justice Felix Frankfurter: He may -- he may lessen that efficiently for Detroit.

But you indicated a minute ago that Los Angeles has the steepest standards made the equipment which would lessen it sufficiently with Detroit, not be so -- not be potentially sufficient to lessen that for Los Angeles.

Mr. John F. Hathaway: That isn't exactly what I said.

But let's assume that that laws -- no --

Justice Felix Frankfurter: Directing on people.

Mr. John F. Hathaway: Oh, I said that --

Justice Felix Frankfurter: I thought you said that (Voice Overlap) --

Mr. John F. Hathaway: The -- the emissions --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Hathaway: The emission standards in both cities are the same.

However, I said that the County of Los Angeles has done more things --

Justice Felix Frankfurter: Has done more --

Mr. John F. Hathaway: -- more things in their ordinance to where they will control not the emission standard, but to the elimination of any type of instrumental that would emit smoke, under certain smog conditions.

Justice Felix Frankfurter: Well, anyhow, I'm -- I'm sorry to have misunderstood you.

Mr. John F. Hathaway: But assume --

Justice Felix Frankfurter: But could they -- could they put in an instrument or an equipment that would satisfy the Detroit and yet, may not be adequate to satisfy some other cities?

Mr. John F. Hathaway: Well --

Justice Felix Frankfurter: I'm just asking I'm (Voice Overlap) --

Mr. John F. Hathaway: But I think --

Justice Felix Frankfurter: (Voice overlap) about that.

Mr. John F. Hathaway: I think that situation could eventually exist.

But I don't think that we -- we should declare this ordinance unconstitutional, because of a hypothetical situation which does -- which the record --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Hathaway: -- doesn't show, now.

Justice Felix Frankfurter: It may bear -- it may bear on -- it may bear on whether Congress left the various navigations cities -- navigable cities to which come navigation -- to which come navigation free to make their individual regulation.

It bears on that question, not on the Commerce Clause as such, but on the fact that Congress didn't leave it to the potentiality of the Commerce Clause.

There's a potential basis for adjudication, but that has passed specific legislation and authorized the granting of a specific license which is the immediate part.

I don't think the Commerce Clause is --

Mr. John F. Hathaway: No --

Justice Felix Frankfurter: -- in my point of view, was argued.

Mr. John F. Hathaway: No, but I think in -- let's -- in considering the statute in question, the federal regulation -- I mean the license and then none of it -- that -- but the license is just the reflection that the statute has been -- complied with.

Justice Felix Frankfurter: I know, but its unqualified license that you can go ahead and navigate this vessel.

And this vessel is the vessel as equipped.

It didn't say you satisfy the federal standard.

We hereby license you to employ a useful navigation that is special.

Chief Justice Earl Warren: Mr. Hathaway, may I ask you this question, does -- does your ordinance attempt to -- to tell the petitioner here how they shall satisfy the ordinance, how they shall -- shall remedy their ship in order to keep the density down or do you just say that they shall keep the density of smoke down below a certain level?

Mr. John F. Hathaway: Yes, we just provide a standard for emission.

Chief Justice Earl Warren: Yes.

Mr. John F. Hathaway: I mean, we don't tell them what type of equipment.

Chief Justice Earl Warren: Yes.

Mr. John F. Hathaway: And I -- I don't think we'd want to tell them what type of equipment to use.

Chief Justice Earl Warren: Sure.

Mr. John F. Hathaway: We'll make that, their own discretion.

As a matter of fact, they could continue to use the equipment they have and first -- then they could -- and naturally, they would probably suffer the consequences of the --

Justice Felix Frankfurter: I don't understand that.

Mr. John F. Hathaway: (Voice Overlap) well, I mean -- there's nothing -- there's nothing --

Justice Felix Frankfurter: (Voice Overlap) I do -- if I do understand, then you tell I must leave appellant's argument that this vessel could not be employed in navigation without violating the penal -- without coming within the penal sanctions of Detroit, is that right?

Mr. John F. Hathaway: (Voice Overlap) --

Justice Felix Frankfurter: Is that right or wrong?

Mr. John F. Hathaway: Well, I am too sure I understood you.

Let me explain it, Your Honor, if I may.

Justice Felix Frankfurter: Please do.

Mr. John F. Hathaway: Our ordinane, what I was saying, doesn't make any specific requirements as to the designs of equipment.

But if he does violate the emission standards, then we would -- he would suffer the penalties, yes.

Justice Felix Frankfurter: But he must violate the emission standard, if he uses the vessel in coming into Detroit, is that right with the person to question?

Mr. John F. Hathaway: Well, I think, I'd agree -- I would have to say, yes, he probably would.

Justice Felix Frankfurter: Well, I -- I don't know I'm asking --

Mr. John F. Hathaway: Well I'm -- I've never seen it like myself except that there were witnesses that testified --

Justice Felix Frankfurter: Well it --

Mr. John F. Hathaway: -- that at this time that they would violate the smoke --

Justice Felix Frankfurter: It's very important at least for me whether you agree or disagree on that, because if you can carry out the license that he -- that the certificate gives him, and complies with the ordinance, there's no problem.

Mr. John F. Hathaway: Well, that --

Justice Felix Frankfurter: But if he can, as a physical fact, use the vessel which was certificated for use, then just as you don't require him to -- what to do in order to comply with the ordinance, so this certificate didn't say whether he could use this vessel with or without compliance, it says you can use this vessel as indicated.

So that one argument is as good as the other.

And since you got a clash between local law and federal law, you got a problem there.

Justice William O. Douglas: I don't see it as you -- but treated the Napier case in your brief, did I overlook it?

Mr. John F. Hathaway: That would be -- the -- the case cited by the -- by the appellant appear (Inaudible) any coast line case?

Justice William O. Douglas: Yes.

I just want on how you -- how you --

Mr. John F. Hathaway: In -- in that case --

Justice William O. Douglas: -- distinguish?

That was the Georgia case that required automatic fire doors on locomotives, remember?

Mr. John F. Hathaway: Yes.

Justice William O. Douglas: And then Wisconsin case required cab curtains on railroad?

Mr. John F. Hathaway: Now, in that case --

Justice William O. Douglas: Then there was no order in the Interstate Commerce Commission requiring --

Mr. John F. Hathaway: Prior -- prior to the license, this case coming into this Court, there'd been decisions wherein they had said that the Federal Government had not preempted that entire field.

Then with the amendment to this Boiler Act, they said the Federal Government had now preempted the entire field that there had been a manifest intent by the Federal Government to -- to take over the entire field.

Now, if that state law was the same type of legislation as the Federal Government has, they didn't specifically point out cab curtains in the federal -- regulations, but they were both what amounted to was a regulation of -- of railroads, specifically aimed at interstate commerce.

Our regulation was purely a local regulation and was not aimed at interstate commerce.

Our regulations had to --

Justice William O. Douglas: Well, may I put you this question, supposed that the Coast Guard issued a certificate conditionally, on the equipment of this vessel with -- with a boiler that did not give out smoke or smoke-free, would that be valid regulation of the Coast Guard?

Mr. John F. Hathaway: Well, actually -- I don't -- I don't think that they could.

I mean, the law provides what they shall do and I think the rules and regulations must have some basis in the law that has been adopted.

Justice John M. Harlan: What significance do you attribute to this federal statute as quoted in the opinion of the Supreme Court of Michigan, in relation with the 1955 appropriation of $5 million investigation of the smoke control, et cetera -- et cetera?

Mr. John F. Hathaway: No --

Justice John M. Harlan: Do you rely on that at all?

Mr. John F. Hathaway: Yes, I do, to this extent that the -- I assume when I -- I think we must assume that Congress knows what their -- about and that they -- when they took -- when they made this -- when they passed this Act, they passed for the purpose of appropriating money to give aid to the various communities and it pointed out that there we was not interstate question involved.

This -- I'm talking about in their report.

In the Act, it points out that the primary responsibility of air pollution rests with the local government and it would -- I wouldn't assume that Congress being aware of the air pollution situation and Congress being aware of the -- the Federal Government had no air pollution law or standards of purity and then this an argument where you can argue both ways, I would assume that they did -- they did not want it.

Those instruments engaged in interstate -- interstate commerce to be immune from prosecution.

Justice Charles E. Whittaker: Are -- are you arguing thus that the fact that Congress appropriated this money for State use in eliminating air pollution, is to be waived in construing the effect of the Coast Guards' license here as not covering the question of air pollution, as leaving that matter free to the city, is that what you argue?

Mr. John F. Hathaway: Yes.

I think, as far as the Congress of the United States is concerned, they stated that air pollution problems were the primary responsibility of local government.

Justice Charles E. Whittaker: But do they relate it in any way to a -- a shipping --

Mr. John F. Hathaway: No.

Justice Charles E. Whittaker: -- by sea or --

Mr. John F. Hathaway: I agree -- I agree with that that they don't.

But I would assume that Congress being -- in adopting one law, would have to be aware that there is -- had another regulation also adopted.

And I would assume that -- at least, I think, it should be argued that in adopting the second regulation or the later regulation, their appropriation for air pollution, that they knew that the existence of the first regulation with steamships and then, if they wanted to eliminate steamships from complying with any local regulations as to air pollution, they might well have stated so.

Justice Charles E. Whittaker: Do -- just was a matter of practice, I'd like to know, does Cleveland and Toledo right there your neighbors, do they have the same ordinances you have?

Mr. John F. Hathaway: I'm not -- at -- at Cleveland.

Justice Charles E. Whittaker: To Cleveland --

Mr. John F. Hathaway: One difference, I mean it provides the same thing and except that it provides for a certain length, longer time for the emission pursuant to another Ringelmann classification.

Justice Charles E. Whittaker: Well, isn't Detroit's position that they all suffer -- all ships on the Great Lakes licensed twice, must meet the toughest ordinance that any city on the Lakes may have?

Mr. John F. Hathaway: Oh, I haven't thought of it.

I would -- I would say that they would be bound by the most -- as long as they're going into the port -- into the territorial waters of that city, I think that they would be bound by that regulation, if the regulation is reasonable of itself.

It would be very difficult for a community to prove that the emission as provided in most of the municipal ordinances -- I mean to lessen that.

In other words, they provide for an -- the emission of smoke in a density equal to a No. 2 Ringelmann, which is No. 2 Ringelmann is a chart put up the Bureau of Mines which provides for what sets up a visual observations of smoke that for -- for purposes of smoke density.

I -- I'm not too sure that you could get testimony to prove that if you were going to lessen the emissions or require that the emissions, he can be less than the standard that you would be able to have people testify to that fact that it would -- that it could be complied with and therefore, it would make be unreasonable as a local regulation, that even considering interstate commerce.

Justice Charles E. Whittaker: Is there --

Mr. John F. Hathaway: In other words --

Justice Charles E. Whittaker: -- is there power in any commission now for the Coast Guard or anybody else to prescribe smoke standards --

Mr. John F. Hathaway: No.

Justice Charles E. Whittaker: -- that you know of?

Mr. John F. Hathaway: None.

Justice Hugo L. Black: If Congress had authorized use of this particular kind of a vessel, would your position be different?

Mr. John F. Hathaway: No.

Justice Hugo L. Black: You would still --

Mr. John F. Hathaway: You mean --

Justice Hugo L. Black: -- you would still say that the city could -- ordinance would provide it.

If they have expressly provided an act of Congress and thus was moving in interstate commerce move that this kind of boiler, what would you about your (Voice Overlap) --

Mr. John F. Hathaway: What -- I can't I hear the last part, Your Honor.

Justice Hugo L. Black: What is that?

Mr. John F. Hathaway: With -- where the --

Justice Hugo L. Black: Assuming that Congress had passed a statute which expressly authorized the use of this type of boiler on ships moving in interstate commerce, would you say your ordinance must then -- valid as against his?

Mr. John F. Hathaway: Yes, I would say so.

I mean, in effect, they've done the same thing.

I mean, they've said that you have to put in a boiler that's of such and such a construction, such and such a steel, such and such a strength.

Justice Hugo L. Black: What do you say -- what you're saying in is that the United States cannot regulate borders so far as controlling the emission of smoke is concerned move into various city ordinance.

Mr. John F. Hathaway: No, I think that Congress didn't pass an air pollution law.

Justice Hugo L. Black: A what?

Mr. John F. Hathaway: Passed an air pollution law -- I mean the smoke laws.

And I think that they can officially --

Justice Hugo L. Black: Of course, it didn't do that, but concluded to permit ships -- let's assume that it included that it would permit ships to move in interstate commerce with boilers precisely like this with full knowledge of fact.

It violated some city ordinance.

Would you say that your city ordinance would withstand or that it can rest on enactment would stand.

I'm trying to find out if you're basing it on a constitutional ground or the power of the Federal Government of our --

Mr. John F. Hathaway: No, I'm basing --

Justice Hugo L. Black: -- (Voice Overlap) if Congress hasn't done it.

Mr. John F. Hathaway: I'm -- well, my -- my argument is that Congress has not done it.

I mean that the -- the intent of Congress on the deregulations that are now in existence, do not cover the same field that we're in on as far as the City of Detroit ordinance is concerned.

I mean, we're getting -- we're showing that they're showing the preemption by inference.

Justice Hugo L. Black: I thought its part of your argument.

It seemed directed though it wasn't saying that Congress couldn't do that even if it wants.

Mr. John F. Hathaway: Oh -- I -- yes, I think Congress could do that.

Justice Hugo L. Black: You think it could regulate and say that this particular type of boiler could move into the waters of interstate commerce into Detroit?

Mr. John F. Hathaway: Yes, I think that they --

Justice Hugo L. Black: (Inaudible) act would be --

Mr. John F. Hathaway: Under the --

Justice Hugo L. Black: -- supreme over the city ordinance.

Mr. John F. Hathaway: I think that they manifested a clear intent in that purpose.

I -- I think that they could, because I think the Commerce Clause gives them the complete and absolute power to do what they want in interstate commerce.

Justice Hugo L. Black: Then your argument is based wholly on the fact that you say Congress --

Mr. John F. Hathaway: Has not.

Justice Hugo L. Black: -- has not authorized it?

Mr. John F. Hathaway: That's correct sir.

Justice Felix Frankfurter: Could Congress say -- could Congress say “We think this is a subject matter that calls for uniformed legislation and we don't want the States to consult their individual notions of what is required as part of the 1955 Appropriation Act.”

Would that make a difference with -- with -- would your answer be different about the (Voice Overlap) --

Mr. John F. Hathaway: Put that -- put that in the corporation --

Justice Felix Frankfurter: Could they -- could they say “We want the States to keep hands-off,” to answer to Justice Clark that they could affirmatively authorize?

They could -- you said they (Inaudible) to the national anti --

Mr. John F. Hathaway: Yes.

Justice Felix Frankfurter: -- pollution statute, could they say “We -- we want a national non-antipollution situation,” could they do that?

Mr. John F. Hathaway: Oh, I don't think that they could do it in affecting -- affecting local matters but I think, they could pass --

Justice Felix Frankfurter: Well, they would have to affect local matters.

You can't help affecting local matters because that's the real problem.

There's -- there's both the local and important or local interest and also national interest.

Chief Justice Earl Warren: But may I ask you this question to bring it down to practical terms.

Your -- your State or your city ordinance provides that a certain level of density, now, we'll call that two.

I think you mentioned two something --

Mr. John F. Hathaway: That's correct.

Chief Justice Earl Warren: -- I don't know what it will -- will say that's two.

Now, supposed the Government said that this State is or this ship is authorized to -- to travel on the Great Lakes for one year provided it -- the smoke it emits does not exceed four which would be twice the -- the amount of -- of smoke that your city ordinance requires.

If it specifically directed its attention to that subject in that manner, do you have any doubt with what the Federal Government could -- could do that and preempt the situation?

Mr. John F. Hathaway: No, I think in the --

Chief Justice Earl Warren: Yes.

Mr. John F. Hathaway: -- terms of the Commerce Clause, they could.

If in --

Chief Justice Earl Warren: But your contention is that it has not done that.

Mr. John F. Hathaway: That's correct.

And I think that when you consider the -- the question of our -- the -- the local police powers, and I mean -- I think that this Court is determined that you should weigh the national interest versus the local interest, I think the health and welfare of the citizens of the City of Detroit and all the rest of the communities that have similar ordinance far outweighs the question of whether or not, steamships would use devices which could comply with the various ordinances in the country.

I don't think that it's as difficult to -- to eliminate smoke as it -- as maybe some people would think.

I think that -- as an example, I pointed out that one thing.

I think that the whole United States Navy could be moved across an ocean without smoke and then -- and all that uses oil -- oil burning type of equipment which is installed in many ships, similar kind that operate in the Detroit River and the Great Lakes area.

Justice Hugo L. Black: There's another constitutional rule that's been followed sometimes I have not always agreed with it (Inaudible) followed the courts to the extent that the Commerce Clause in and of itself require uniformity in certain matters in order to achieve a uniform operation, whatever this business is, that's going on.

What do you say about that phase of the case?

Mr. John F. Hathaway: Well, that -- that is an argument that's put forth by the plaintiff.

You know, the -- in the argument of uniformity would always be good.

I mean, it would -- if the Congress of the United States would adopt the regulation covering all these problems, I suppose you could argue that that would be good and they would not have an argument.

But until they do, I don't think that the cities under their reserved powers should be precluded from adopting health regulations for the citizens in their own communities.

And I don't think that it's a very difficult situation to always weigh the national interest versus the local in considering those problems but I don't think that the Commerce Clause in this situation, by its very force, precludes us from adopting air pollution ordinance.

Justice Hugo L. Black: You say that the Court would not be justified in finding that uniformity is so essential in this field to ordering that this must stricken down on the Commerce Clause alone?

Mr. John F. Hathaway: Yes, that's correct.

Justice Charles E. Whittaker: Do you make any differentiation out there as to whether this is a foreign ship, a Canadian ship or an American ship or do you treat them all alike?

How do you do that?

Mr. John F. Hathaway: Well, we treat them all alike except -- we have -- we have a problem there.

You're talking about prosecution.

We just have a very difficult problem in getting service or process.

I mean, the ships are not located necessarily in the State of Michigan.

And when it comes through the Detroit River, they have a question, imagine, just issuing a ticket if they do -- do not have any resident agents in the State of Michigan.

And if they do not operate in the State of Michigan, except to proceed through your territorial waters, that's one thing and it's kept by a question of constitutional enforcement in the ordinance to a minimum.

Justice Charles E. Whittaker: Well, does Canada have a like regulation over (Inaudible) as yours --

Mr. John F. Hathaway: No.

Justice Charles E. Whittaker: -- ordinance?

Well, then, how -- how are you to protect yourself when smoke from a Canadian -- on the Canadian side, to just a detriment of Detroit and ask if the ship were over on the Detroit side, which is a narrow river?

Mr. John F. Hathaway: The problem has been this.

10 years ago, the City of Detroit and the State of Michigan asked the International Joint Commission to make the study to see if there would a federal regulation and the Canadian regulations.

Justice Charles E. Whittaker: Maybe what I asked you involved so -- it is just a curiosity.

Mr. John F. Hathaway: There was just one more point that I wish to bring to this Court's attention.

The plaintiff argues that we are demanding inspection and licensing.

I would like to point out that we have never demanded an annual inspection.

We have never demanded that they obtain a license.

There's no provision exactly for licenses, what they call a certificate of compliance.

Being a local regulation, when the matter was adopted, when the ordinance was adopted, we wanted anybody to put in new furnaces, new equipment to obtain permits in the City of Detroit, the building department.

And subsequent to that, they would make an inspection as to their proper installation and also to the smoke characteristics.

At least the Smoke Abatement Bureau would do this.

Now, it's our contention that we also adopted a severability clause within our own ordinance.

And the purpose of that natural indefinite severability clause is so that if there are any provisions within the ordinance which would be unconstitutional or be in contravention of the -- of the Constitution of the United States or the State of Michigan, that this section could be eliminated and not considered.

Now, the inspection and licensing of steamship has never been contemplated by the City of Detroit.

13 years, we've never demanded it or in any other instrument of --

Justice Hugo L. Black: What about seizure of the ship?

Mr. John F. Hathaway: Pardon?

Justice Hugo L. Black: What about seizure of the ship?

Mr. John F. Hathaway: Now, that section also was adopted which provides that -- we don't say that -- seizure of ships.

All it says is that equipment, if in -- used in the City of Detroit, violates our ordinance three times, we then can seal the equipment.

Is this the section you're referring to?

Justice Hugo L. Black: Yes.

Well in --

Mr. John F. Hathaway: Now --

Justice Hugo L. Black: We're in the same results.

Mr. John F. Hathaway: Now, we have never done that.

That section also provides that if we can't obtain service on the owner of our process, that we will post a notice on the premises at the place of violation which would require us to post a notice somewhere in the middle of the Detroit River.

I mean this in -- this section of the ordinance was clearly intended as a local regulation from there.

We've never applied it to any instrument in -- engaged in interstate commerce.

And if the Court is to be concerned with that section, we argue that our ordinance is severable.

These sections have no application and no necessity except in aids in enforcing the purpose of the ordinance which is the control of what comes out of the stack and not a regulation of the combustion and equipment, except that I suppose in -- by inference.

Chief Justice Earl Warren: That's all, Mr. Andrews.

Very well.

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