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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

BRIEFING COMPLETE IN VEHICLE TESTING CASE  Posted: January 12, 2004

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

LOUISVILLE DIVISION

CASE NUMBER 3:03CV-712-H

KENTUCKY RESOURCES COUNCIL, INC.,

and

SARAH LYNN CUNNINGHAM, PLAINTIFFS

V. PLAINTIFFS’ REPLY IN SUPPORT OF

TEMPORARY INJUNCTION

MIKE LEAVITT, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and

LAJUANA WILCHER, SECRETARY, ENVIRONMENTAL AND

PUBLIC PROTECTION CABINET1

and

ARTHUR WILLIAMS, DIRECTOR,

LOUISVILLE METRO AIR POLLUTION CONTROL DISTRICT

and

DR. KAREN CASSIDY, CHAIRPERSON,

LOUISVILLE METRO AIR POLLUTION CONTROL BOARD

DEFENDANTS

* * * * *

In response to this Court’s Order of Conference on November 24, 2003 directing that the Defendants file pleadings responding to “all the legal issues including those concerning remedy and jurisdiction” and that Plaintiffs file any reply by January 9, 2004, Plaintiffs herewith tender this response to the various pleadings filed by Defendants.

I. DEFENDANT LIST’S MOTION TO DISMISS SHOULD BE

OVERRULED

Despite this Court’s Order that the Defendants’ respond to “all the legal issues including those concerning remedy and jurisdiction, Defendant Henry Clay List2 (List) has opted instead to move this Court for dismissal “for three reasons: Lack of jurisdiction; failure to state a claim upon which relief can be granted; and failure to name an indispensable party.” Memorandum in Support of Motion to Dismiss (hereinafter “List Memo”) at 3. Plaintiffs respond briefly to each defense in turn.

On review of a motion to dismiss, the Court views the Complaint in the light most favorable to the Plaintiffs. Leador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir. 1990), cert. den. 498 U.S. 867 (1990); Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). All of the fact alleged by the Plaintiffs are accepted as true and the Court determines whether the Plaintiff “undoubtedly can prove no set of facts in support of his claims which entitle him to relief.” 902 F.2d at 475 (Emphasis added). Against this standard, Defendant List’s motion falls short.

As to the jurisdictional argument, List acknowledges that federal courts may enjoin a state official from violating federal law under Ex Parte Young, 209 U.S. 123 (1908),3 yet argues that in this case, “it is clear that List has not violated any federal law nor does a ”requisite connection” exist between List and the VET program.” List Memo at 4. (citing Sweat v. Hull, 200 F. Supp. 2d 1162 (D. Ariz. 2001).

List draws on the Sweat case to analogize between the situation of the Governor of Arizona, who was dismissed in that case as a party defendant since she had only “general authority” to enforce the laws of Arizona, and Lists’ responsibility as Secretary of the Natural Resources and Environmental Protection Cabinet. According to List, it is Defendants Williams and Cassidy, as Director of the Louisville Metro Air Pollution Control District and Chair of that’s Districts’ Board, respectively, who have the “specific responsibility” and “requisite connection.” List Memo at 6.

Williams and Cassidy have, as one might expect, a somewhat different view. According to Williams and Cassidy, it is the State to whom any injunctive relief should be directed. In its’ Response to Motion for Preliminary Injunction and Memorandum of Law, (hereinafter “District Memo”) Williams and Cassidy argue that if the court decides injunctive relief is warranted it should be directed at the state defendant Cabinet because “it was a state statute that ordered the District to eliminate the VET program; and it is the state’s Division of Air Quality that is ultimately accountable to EPA. The District has only such authority as is granted by the state pursuant to KRS Chapter 77 and KRS 224.20-130. The state has full authority to institute a vehicle emission control program pursuant to KRS 224.20-710 to 224.20-765.” District Memo at 14.

In truth, List, Williams and Cassidy are all proper parties-defendant.

To decide whether a suit against an individual state officer avoids the Eleventh Amendment bar under the Ex Parte Young doctrine, “a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md, Inc. v. Public Service Commission of Md, 535 U.S. 635, 645 (2002), citing Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997).4 In this instance, Plaintiffs seek prospective declaratory and injunctive relief for violations of federal law by state and local agency officials. The Ex Parte Young doctrine allows the maintenance of this action, Eleventh Amendment notwithstanding.

As to List’s defense that he is not a proper party defendant because he has only general authority, List finds no shelter behind the Sweat decision.

List is correct that an officer must have a connection, as reflected in the Sweat decision. Properly framed, the “connection” requirement as explained by the Supreme Court in Ex Parte Young, is plainly satisfied in this case:

In making an officer of the State a party defendant in a suit to enjoin

the enforcement of an act alleged to be unconstitutional it is plain that

such officer must have some connection with the enforcement of the

act, or else it is merely making him a party as a representative of the

State, and thereby attempting to make the State a party.

It has not, however, been held that it was necessary that such duty should

be declared in the same act which is to be enforced. In some cases, it is

true, the duty of enforcement has been so imposed (154 U.S. 362, 366,

Section 19 of the Act), but that may possibly make the duty more clear;

if it otherwise exist it is equally efficacious. The fact that the officer by

virtue of his office has some connection with the enforcement of the

act is the important and material fact, and whether it arises out of the general

law, or is specially created by the act itself, is not material so long as it

exists.

209 U.S. at 157.

List has both the specific duty and requisite connection to the obligations to maintain and administer the approved State Implementation Plan necessary to support the exercise of federal question jurisdiction over him as a state agency official under the Ex Parte Young doctrine.

Under the Clean Air Act, it is primarily the state agency that is responsible for enforcing the approved SIP. 42 USC 7407(a) provides that

[e]ach state shall have the primary responsibility for assuring air quality

within the entire geographic area comprising such State by submitting an implementation plan for such State which will specify the manner in which

[air quality standards] will be achieved and maintained within each air quality control region in such State.

Among the state’s obligations under the Act in development of the State Implementation Plan are the requirement to provide assurances that:

the State . . . will have adequate personnel, funding, and authority

under State (and, as appropriate, local) law to carry out such

implementation plan and is not prohibited by any provision of

Federal or State law from carrying out such implementation plan

or portion thereof.

42 USC 7410(a)(2)(E) (Italics added).

The Clean Air Act allows the state agency to designate a local agency to implement all or a portion of a SIP, but requires that in such a case the SIP provide:

necessary assurances that, where the State has relied on a local or

regional government, agency, or instrumentality for the implementation

of any plan provision, the State has responsibility for ensuring adequate

implementation of such plan provision[.]

42 USC 7410(a)(2)(E).

EPA’s regulations at 40 CFR 51.232 further provide that while a State agency may “assign” responsibility for carrying out a portion of the SIP to a local governmental authority, the state must demonstrate to the Administrator’s satisfaction that “the State governmental agency has the legal authority necessary to carry out the portion of plan.” The assignment “does not relieve the State of responsibility under the Act for carrying out such plan, or portion thereof.” 40 CFR 51.232(b)(2).

Under federal law, then, List and his Cabinet have specific authority and a specific duty to maintain and administer the SIP; a duty that is enforceable through a citizens’ suit, as recognized by Defendant Leavitt and EPA in its memorandum.5 List has violated a specific, ongoing, mandatory federal obligation to maintain and enforce the approved SIP and is a proper party defendant.

Curiously, while seeking dismissal for himself for supposed want of a sufficient connection, Defendant List seeks dismissal as well for the alleged failure to have named a party for whom such a specific connection does not exist under the approved SIP. List argues that Louisville Metro Mayor Abramson is a “necessary party” and should have been named instead of List because it was Abramson who caused the elimination of the VET program after having been reminded by the Cabinet of his obligation to comply with federal law.

The argument is misplaced. It is the Louisville Metro Air Pollution Control District that is the agency to whom the management of the Jefferson County portion of the SIP has been assigned under the SIP, not Abramson. It was the LMAPCD Board that voted to terminate the program and the Director of that District who transmitted the request for termination, not Abramson. List admits this later in his memorandum, noting that “[t]he fact is that it was the City of Louisville through the LMAPCD that terminated the VET program, not List.” List Memo at p. 7 (emphasis added). Consistent with Lists’ argument that the parties with specific connection and specific obligations that should be parties defendant, the proper parties are the LMAPCD Director and Chair, to whom the state agency has assigned implementation of the Jefferson County portion of the Kentucky SIP and to whom state law has assigned responsibility for management of the vehicle testing program (a responsibility whose termination is at issue here).6 The decision to repeal the VET regulations and to transmit to the State a request to change the SIP to reflect this unilateral termination of the program, occurred with no independent action by Abramson. The argument should be rejected.

The final argument from List is that because Plaintiffs have not sought preliminary injunctive relief against List, they have failed to state a claim upon which relief can be granted.

List is mistaken. Initially, the Complaint clearly alleges a violation of federal law by List:

Plaintiffs seek a determination that defendants List, Williams and

Cassidy have violated obligations under the federal CAA with respect

to maintenance of the approved Kentucky SIP by eliminating the VET

program prior to receipt of approval for the elimination of the program

from EPA, and that KRS 77.320, to the extent that it mandated that

premature termination, is void ab initio as being violative of the

Supremacy Clause of the U.S. Constitution and interfering with the

fulfillment of federally enforceable obligations of the state and local

agency officials.

Complaint, p. 2.

Plaintiffs have requested preliminary injunctive relief against both state and local agency defendants, as is clear from the Motion and Memorandum filed by Plaintiffs:

Wherefore, for each of these reasons, and in order to protect the ability of this Court to grant meaningful relief and to maintain the last lawful status quo ante pending a hearing on the merits of this action, Plaintiff respectfully requests that this court enter a temporary injunction:

(1) directing the local agency official defendants and state agency official defendants to take such actions as are necessary to assure that the VET program be promptly reinstated and be continued in force and effect, and restraining and enjoining the Secretary of the Natural Resources and Environmental Protection Cabinet and his agents and employees, and the Louisville/Jefferson County Metro Air Pollution Control District Director and Board Chair and their agents and employees, from taking any actions to terminate that program unless and until such termination is approved by EPA; and

(2) restraining and enjoining the Natural Resources and Environmental Protection Cabinet, and the Louisville Metro Air Pollution Control District Director and the Louisville Metro Air Pollution Control District Board from taking any actions to terminate that program, including but not limited to, repealing the authorizing District regulations and terminating contracts; unless and until such termination is approved by EPA[.]

List tacitly acknowledges that a sufficient claim has been asserted, citing the Plaintiffs’ allegation that “the state remains responsible and accountable for assuring that the SIP is maintained and enforced as approved by EPA.” If (as must be accepted in the context of a motion to dismiss) Plaintiffs are correct in asserting that List has a non-delegable responsibility to maintain and enforce the SIP, and the allegation in the Complaint is that the SIP is not being maintained and enforced, then it is clear that the complaint has asserted a claim that List has breached a duty.

In truth, the gravamen of List’s argument goes to the extent of the state’s obligation rather than the existence vel non of such an obligation. List asserts that the state’s duty, such as it is, was satisfied by the issuance of the October 28, 2003 letter to the LMAPCD in which the state agency head reminded the District that:

the SIP, as codified at 40 CFR 52.920 to 52.939, continues to

have full force and effect pursuant to the federal Clean Air Act,

42 USC 7401, et seq. Louisville/Jefferson County Metro, through

the Louisville/Jefferson County Metro Air Pollution Control

District, must as a matter of federal law continuing implementing

its 1-Hour Maintenance Plan, which includes operation of the

vehicle emissions testing program.

The Natural Resources and Environmental Protection Cabinet is

evaluating EPA’s denial. We will share with you our assessment

at the earliest opportunity. However, we wanted to make you aware

of the denial, and of the continuing obligation imposed by federal

law.

(Italics added). A copy of the October 28, 2003 letter was appended to the Complaint in this action.

Unfortunately for List, neither 42 USC 7410(a)(2)(E) nor 40 CFR 51.232 admit to an interpretation that the state agency satisfies its statutory obligations to maintain and enforce the SIP where a local agency defaults on that assigned obligation merely by providing notice to the local agency that it is obligated to continue to maintain its portion of the SIP. Instead, the state bears primary responsibility to assure that the SIP is administered, and in the absence of District action the State must take all necessary actions to enforce the SIP.

List’s motion should be denied.

II. EPA’S MEMORANDUM SUPPORTS ISSUANCE

OF PRELIMINARY INJUNCTIVE RELIEF

EPA, in response to the Court’s Order of Conference, concurs with the Plaintiffs - that the approved SIP (including sub nom the vehicle emissions testing program) remains the federally applicable and enforceable law notwithstanding any submission of a request by a state or local agency to revise the SIP. EPA Memo at 4.

EPA additionally underscores that a citizen suit such as this is a legitimate and appropriate method for securing enforcement of the approved SIP and compliance by a noncompliant state or local agency. Id. at 6.

EPA acknowledges as well that under the CAA, members of the public may sue to enforce the Act, and that this mechanism for enforcement of the law is distinct from EPA’s discretionary authority to impose sanctions for noncompliance with the Act. EPA does not suggest, nor does the Clean Air Act provide, that enforcement by this Court of the state and District defendants’ obligations should await EPA’s action, but instead acknowledges that on giving 60-days’ notice for the agency to act, the Clean Air Act contemplates direct enforcement by federal courts of the SIPs through citizen suits. As noted in the EPA memorandum, “[w]hile courts welcome participation in Clean Air Act suits of governmental units with both enforcement responsibility and expertise, Congress intended the courts to enforce mandated air quality plans irrespective of the failings of agency participation.” 546 F. Supp. 1357, 1361 (D.D.C. 1982), EPA Memo at p. 7.

In conclusion, EPA’s memorandum is fully consonant with Plaintiffs’ position in this case and supports the exercise of this Court’s equitable powers to assure that in the intervening period between today and March 22, 2005 (the outside date for EPA action on the state’s request for revision of the SIP to remove the VET program) that the ongoing violation of the obligation to maintain and administer the VET as part of the approved SIP does not go unabated and that, as mandated by Congress and recognized by the Supreme Court, the approved SIP is maintained as “the applicable implementation plan during the time a SIP revision proposal is pending.”

EPA has not moved to dismiss, but has reserved that right to file a subsequent motion, arguing that it is not a necessary party defendant in this case, and that this Court is empowered to provide relief irrespective of the participation of EPA in the case. Id. at 7. Plaintiffs do not disagree with EPA’s assessment of the law. Plaintiffs named the EPA, through Administrator Leavitt, as a party-defendant in order to assure that the views of that agency were known to the Court and that the requested relief, which is reinstatement of the vehicle emissions testing program, would not interfere with the agency’s oversight of the law. EPA has indicated that it agrees with the substantive legal position of the Plaintiffs that the analysis in Sweat v. Hull and Clean Air Council v. Mallory are controlling in that the VET program remains federally enforceable and neither the Tenth nor the Eleventh Amendment bar this citizen suit. Plaintiffs do not oppose dismissal of EPA as a party-defendant or realignment of EPA, as the agency chooses.

III. THE LOCAL AGENCY OFFICIALS ACKNOWLEDGE THAT

THEY HAVE VIOLATED A MANDATORY DUTY UNDER THE

CLEAN AIR ACT TO MAINTAIN THE VEHICLE TESTING

PROGRAM

For their part, Defendants Williams and Cassidy admit that they have violated the State Implementation Plan by terminating the vehicle emissions testing program. The District “agrees that the approved SIP is the ‘applicable implementation plan’ (42 USC 7602) and is enforceable.” District Memo at 8. The District further acknowledges (as it must) that “[t]echnically, the state is supposed to obtain EPA approval before revising its SIP.” Id. at 10. The District further “does concede a strong likelihood that the Court will conclude that dropping a SIP measure before receiving EPA approval is a technical violation of federal law.” Id. at 13.

Having thus conceded, the inquiry into whether the SIP has been violated is satisfied, and the sole remaining question is one of remedy. The state acknowledges, (and in its October 28, 2003 letter to the District reminded the local agency) that federal law required continuation of the vehicle testing program by the District officials. EPA has indicated concurrence with the analysis and conclusion of Sweat, a case directly on point in concluding that a state law mandating unilateral termination of a vehicle program that was a component of an approved SIP impermissibly interferes with maintenance of an approved State Implementation Plan and is void under the Supremacy Clause. The local agency acknowledges that the termination of the program violated federal law.

The District officials, having conceded their violation of mandatory obligations under federal law, seek to minimize the significance of the violation by couching it as a “technical violation.” According to the District, the violation is excusable for several reasons: first, because in practice EPA has allowed states to implement SIP revisions before securing EPA approval; and second, because the SIP revision should be approved and EPA’s preliminary notice that it intends to deny the SIP revision is erroneous.

As to the first point, the law is clear. The SIP that must be enforced is the SIP approved by EPA, and no revision to the SIP becomes part of the SIP until it is approved by EPA.

The District suggests, by reference to 42 USC 7410(a)(2) and 40 CFR Part 51 Appendix V that EPA’s regulations and the Act contemplate that the states will adopt changes to state law and regulations and implement those changes prior to EPA approval.

The District’s argument is misplaced. First, 42 USC 7410(a)(2) does not govern revisions to State Implementation Plans, but instead outlines the requirements for initial SIP submittals. General Motors Corporation v. United States, 496 U.S. 530, 536 (1990). Revisions to approved SIPs are governed by 42 USC 7410(l), which provides that:

Each revision to an implementation plan submitted by a State under this

chapter shall be adopted by such State after reasonable notice and public

hearing. The Administrator shall not approve a revision of a plan if the

revision would interfere with any applicable requirement concerning

attainment and reasonable further progress (as defined in section 7501

of this title), or any other applicable requirement of this chapter.

Likewise, the EPA guidance cited by the District, 40 CFR Part 51 Appendix V, applies to initial program submissions under 40 CFR 51.103. Revisions to approved SIPs are governed by 40 CFR 51.104 and 51.105, which provide in full that:

40 CFR §51.104 Revisions.

(a) States may revise the plan from time to time consistent

with the requirements applicable to implementation plans

under this part.

(b) The States must submit any revision of any regulation or

any compliance schedule under paragraph (c) of this section to

the Administrator no later than 60 days after its adoption.

(c) EPA will approve revisions only after applicable hearing

requirements of §51.102 have been satisfied.

(d) In order for a variance to be considered for approval as a revision

to the State implementation plan, the State must submit it in accordance

with the requirements of this section.

[61 FR 16050, Apr. 11, 1996]

* * * * *

40 CFR §51.105 Approval Of Plans.

Revisions of a plan, or any portion thereof, will not be considered part

of an applicable plan until such revisions have been approved by the Administrator in accordance with this part.

[60 FR 33915, June 29, 1995]

Regardless of whether a state (or local agency) may adopt changes to state laws and regulations prior to submittal of those changes as a proposed SIP revision or not, it is clear that those changes are not part of the approved SIP and cannot be implemented prior to approval by EPA. The approved SIP remains the applicable and enforceable plan notwithstanding the pendency of a proposed revision.

There can be little or no doubt that the existing SIP remains

the “applicable implementation plan” even after the State has

submitted a proposed revision. The statute states: ‘For the

purposes of this chapter, an applicable implementation plan is the

implementation plan, or most recent revision thereof, which has

been approved . . . and which implements the requirements of

this section. . . . Both this Court and the Courts of Appeals have

recognized that the approved SIP is the applicable implementation

plan during the time a SIP revision proposal is pending. (Citations

omitted).

General Motors Corporation v. United States, 496 U.S. 530, 540 (1990). (Italics added). The case law is uniformly in accord with the principle that a SIP plan “once adopted by a state and approved by the EPA, becomes controlling and must be carried out by the state.Friends of the Earth v. Carey, 535 F.2d 165, 169 (2d Cir. 1976), cert. den. 434 U.S. 902 (1977); Sweat v. Hull, 200 F.Supp. 1162, 1170 (D. Ariz. 2001). This Circuit has squarely faced the question of whether a proposed revision may be implemented prior to EPA approval of that change as part of a SIP, and has rejected the proposition in U.S. v. Ford Motor Co., 814 F.2d 1099 (6th Cir. 1987), cert. den. 484 U.S. 822 (1987). The District has admitted that the VET program requirement is, in the context of enforcement of the SIP, an “emission standard or limitation” under 42 USC 7604(f)(3), and the Sixth Circuit affirmed in Ford Motor, reviewing a claim that a SIP variance granted by a state to a company should be enforceable prior to EPA approval, that “the original emission limit remains fully enforceable until a revision or variance is approved by both the State and EPA.”

The District’s argument that the regulatory language contemplates state implementation of changes in advance of EPA approval, was considered and soundly rejected by the District Court in Sweat v. Hull:

Defendants argue that the CAA does not “require states to obtain

EPA clearance before changing or repealing statutes or rules that

are included in approved SIPs.” [ ] As authority for this argument,

Defendants cite to 42 U.S.C. 7410(l) for the proposition that states

must first “adopt” and then submit SIP revisions to the EPA for

approval.

* * *

Defendants’ argument that the CAA does not require states to

obtain EPA clearance before repealing and not enforcing provisions

included in an approved SIP is directly contrary to Gen. Motors

and Ford, which clearly provide that a state’s SIP remains

enforceable during the time a revision proposal is pending and that

the EPA has “final authority to approve revisions of EPA-approved

SIPs.”

Sweat v. Hull, 200 F.Supp. 2d at 1170.

Finally, 42 USC 7416 imposes a specific bar against the adoption and enforcement of an emission standard or limitation that is less stringent than one in an approved SIP:

[n]othing in this chapter shall preclude or deny the right of any State

or political subdivision thereof to adopt or enforce (any standard or limit-

ation respecting emissions of air pollutants or (2) any requirement

respecting control or abatement of air pollution; except that if an

emission standard or limitation is in effect under an applicable

implementation plan . . . such State or political subdivision may not

adopt or enforce any emission standard or limitation which is less

stringent than the standard or limitation under such plan or section.

In this case, the state statute was void ab initio under the Supremacy Clause since it irreconcilably interfered with continuing federal obligations under the approved SIP. The statute was illegal as adopted and as implemented by the District. The actions of the District in repealing the authorizing regulations and terminating the program were likewise unlawful. The law, regulations, and case law, uniformly require that the existing SIP, which in this case includes the vehicle emissions testing program, must be maintained in force and effect pending agency review. Irrespective of whether the District believes that EPA should approve ultimately the revision (their second argument, addressed below), Williams and Cassidy were without the authority to unilaterally terminate a component of the SIP prior to receiving EPA approval.

The termination of such a measure after having been reminded by the state agency officials of the federal obligation to maintain the program, resulting in an admitted increase of 690 tons per year of volatile organic compounds into the Metro Louisville air each day in year 2005, District Memo at 13, cannot be excused by trivializing the violation as a “technical” violation.

As to the second point, the District defends its violation of the SIP by attempting to argue that EPA should ultimately approve the SIP revision, as if the disposition of the revision request justifies blatant violation of the obligation to maintain the approved program components until such approval.

The law and regulations do not support Williams and Cassidy on this point. No state or local agency is authorized to unilaterally terminate a component of the SIP prior to approval, no matter how convinced the agency might be that the change will or should be approved. In fact, EPA has indicated that it will disapprove the requested SIP revision for two separate and sufficient reasons, and that it has until March 22, 2005 to do so (and then a time thereafter to determine whether to impose sanctions). To the extent that the District believes that the disapproval (if and when it occurs) is erroneous the District may avail itself of the applicable judicial review provisions of the law. The Act does not, however, admit to a reading that allows termination by the District or the General Assembly of approved SIP components in advance of approval of the termination by EPA, irrespective of whether the District believes that “there is no real justification for EPA to deny the revision.” District Memo at 10.

The District officials make two final arguments: first, that the Court should take no action and await EPA’s decision to approve or disapprove the revision and then to take or forswear sanctions; and second, that injunctive relief is not warranted because either (a) the injunctive relief should be addressed to the state Cabinet since the legislature directed the program to be terminated and the state agency is ultimately accountable; and (b) since ending the program won’t cause a violation of the 1-hour standard, there is no harm.

As to the last point first, Plaintiffs have demonstrated clearly (and Williams and Cassidy have admitted!) that the Clean Air Act and the SIP are being violated. Under the rule of Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1183 (6th Cir. 1972), this demonstration is sufficient irreparable harm to support an injunction without any further showing of actual harm.

Beyond that, however, Williams and Cassidy’s argument that there is no real harm from elimination of the program is factually incorrect. As the harm-in-fact that elimination of the program has caused, the Court need look no further than the letter written by Williams to then-Governor Patton seeking a veto of the bill that became KRS 77.320, a copy of which is annexed to the Plaintiffs Memorandum in Support of Motion For Preliminary Injunction Pursuant to FRCP 65:

Dear Governor Patton:

On behalf of Jefferson County and its Air Pollution Control District

and Board, I request that you veto House Bill 618 because of its serious,

adverse effects on the public and economic health of Jefferson County

and the surrounding area.

There are several substantial reasons which strongly justify your veto and

which are set forth below with appropriate supporting references and

information.

1. House Bill 618 Harms Public Health

The most serious consequence of eliminating the Vehicle Emissions Test

(VET) in Jefferson County will be to place back into the air breathed by

this community approximately 6.5 million pounds per year of volatile

organic compounds (VOC’s), 2.5 million pounds per year of oxides of

nitrogen (NOx) and 70 millions (sic) pounds per year of carbon monoxide

(CO).

For the approximately 100,000 people in the Louisville metro area who

already have some form of respiratory disease or illness the introduction

of this enormous amount of pollution will necessarily further imperil

their health.

* * *

There is no doubt that the enormous quantity of air pollution placed into

Louisville’s air will seriously damage public health with all the associated

adverse consequences.

2. House Bill 618 Harms Economic Health

Emissions from vehicles are our community’s, and most communities’,

largest source of several significant air pollutants including carbon

monoxide (CO), hydrocarbons (HC) and oxides of nitrogen (NOx).

. . . The 23 million miles per day driven by our over 400,000 vehicles

generate 40% of our ozone pollution and 80% of our carbon monoxide

pollution. Vehicle pollution is also a major source of particulate

pollution.

* * *

[W]ithout the VET program our region will have to shift the burden

of reducing air pollution on to the backs of existing industries. This

will jeopardize the community’s and the Commonwealth’s ability to

attract new industry into the region and to allow existing industry to

expand by causing the businesses and industries to bear a burden more

equitably borne by the mobile source sector.

The burden of shifting this responsibility to business and industry is

not only unfair it is also not cost effective.

The VET program is extremely cost effective. The pollution that

is removed from our ambient air by the VET program is done so at a

cost of $300-$500 per ton. To achieve comparable reductions of VOC’s

by business and industry, which over the last decade has installed

state of the art pollution control at a cost of over $50 million, would

cost well over $10,000 per ton with total costs that could well approach

$100 million.

Additionally, removal of the VET also will threaten many of the key growth

areas of Jefferson County because of the impact from increased CO levels.

Letter from LMAPCD Director Arthur Williams to Governor Paul Patton, March 26, 2002.7

CONCLUSION

It is clear that the SIP has been violated by the termination of the VET program, and that Williams, Cassidy and List each have violated their obligations under the SIP to maintain that program. In order to remedy the ongoing harm from this clear violation of federal law and ongoing frustration of Congressional purpose and mandate, and to remedy the ongoing damage to the public health and air quality which defendant Williams described as “enormous amount of pollution [that] will unnecessarily further imperil” the health of the 100,000 Metro Louisville residents suffering from respiratory disease or illness, (and including Ms. Cunningham), a preliminary injunction mandating reinstatement by defendants Williams and Cassidy of the vehicle emissions testing program is both fully justified and needed.

Respectfully submitted,

_________________________

Tom FitzGerald

Counsel for Plaintiffs

Kentucky Resources Council, Inc.

P.O. Box 1070

Frankfort, KY 40602-1070

(502) 875-2428

(502) 875-2845 (fax)

FitzKRC@aol.com

Certificate of Service

I hereby certify that a true and correct copy of Plaintiffs’ Reply In Support of Temporary Injunction was served this 9th day of January, 2004 by first-class mail on the following:

Martin F. McDermott

U.S. Department of Justice

Environmental Defense Section

P.O. Box 23986

Washington, D.C. 20026

Sara Schneeberg

Office of General Counsel

US EPA

Washington D.C. 20460

John Horne, Esq.

Mike Haines, Esq.

Office of Legal Services, NREPC

Fifth Floor, Capital Plaza Tower

Frankfort KY 40601

Hon. Greg Stumbo, Attorney General

Commonwealth of Kentucky

State Capitol

Frankfort, KY 40601

Hon. Scott Lilly

Suite 1001

531 Court Place

Louisville, Kentucky 40202

Hon. William O'Brien

Room 2086

600 W. Jefferson Street

Louisville, Kentucky 40202

Hon. Lauren Anderson

Louisville-Metro Air Pollution Control District

850 Barrett Avenue

Louisville, KY 40204

John Horne

Mike Haines

Office of Legal Services, NREPC

Fifth Floor, Capital Plaza Tower

Frankfort, KY 40601

W. Brady Miller

Assistant U.S. Attorney

510 West Broadway 10th Floor

Louisville, KY 40202

_______________________

Tom FitzGerald

1 LaJuana S. Wilcher was sworn in as the new Secretary of the newly minted Environmental and Public Protection Cabinet on December 22, 2003. She is automatically substituted pursuant to FRCP 25(d)(1).

2 While former Secretary List has been replaced by LaJuana Wilcher as the Secretary of the reorganized Environmental and Public Protection Cabinet, this brief will continue to refer to the arguments of the state agency officials by the former Secretary’s name.

3 Neither List nor the District have advanced a broader 11th Amendment challenge. The analyses in the decisions of Sweat v. Hull, 200 F.Supp. 2d 1162 (D. Ariz. 2001) and Clean Air Council v. Mallory, 226 F.Supp. 2d 705 (E.D. Pa. 2002) support the applicability of the Ex Parte Young exception to this case.

4 This Circuit has recently applied the ‘straightfoward inquiry’ approach recognized in Verizon in finding the Chair and Executive Director of the Michigan Board of Law Examiners and Michigan Bar to be proper parties-defendant to a suit brought by an applicant denied bar admission. Dubuc v. Michigan Board of Law Examiners, 342 F.3d 610, 616 (6th Cir. 2003).

5 State law additionally recognizes that the Cabinet is the agency responsible for air pollution control under the Clean Air Act in the Commonwealth and directs that the agency “take all action necessary or appropriate to secure to this state and all cities, counties, districts, and authorities within this state the benefits of such federal acts.” KRS 224.16-060. Williams and Cassidy argue further that the state has the authority to implement a separate vehicle testing program for Metro Louisville under KRS 224.20-710 – 765; however that remedy is not available since by statute the state agency is limited to implementing such programs for counties that are designated as being in nonattainment, and a formal designation of nonattainment for the more rigorous ozone standard has not been made for Metro Louisville.

6 To the extent that this Court believes the Louisville Metro Mayor should be added as a party Plaintiffs do not object. There is obviously no prejudice to the Mayor, since his counsel appeared at the Conference on this case and has been on notice; in fact participating in argument at the conference even though not a party.

7 Additional points raised in that letter included a recent county-wide poll indicating broad public support for the program notwithstanding the “vocal minority of VET opponents,” and a District concern with the precedent and momentum that HB 618 would create for removal of other I/M programs. Several bills pending before the 2004 General Assembly attest to the prescience of Williams’ concern, since the bills direct termination of the northern Kentucky vehicle emissions program by the state agency Defendants in advance of EPA review and approval. See: . Issuance of a preliminary injunction in this case will serve the interests of judicial efficiency by alerting state legislators that any further actions to terminate components of the approved SIP, such as mandating termination of the vehicle testing program for northern Kentucky, should not be adopted or made effective until EPA approval is obtained.



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