Petition — Chrysler Corp. v. United States Environmental Protection Agency

80-378

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

CHRYSLER CORPORATION,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and DouGLAS M. CosTLE, Administrator,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

JAMES A. HOURIHAN

GAIL STARLING MARSHALL

HoGAN & HARTSON

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4500

Attorneys for Petitioner

September 8, 1980

WILSON - PES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Did the United States Court of Appeals for the

District of Columbia Circuit err by holding here that the

Clean Air Act requires that the automobile manufacturer,

and not owners and mechanics, is responsible for the

proper maintenance of emission control equipment on

vehicles in use when Congress clearly intended owners

and mechanics to be responsible for proper in-use

maintenance?

2. Did the United States Court of Appeals for the

District of Columbia Circuit err in upholding the United

States Environmental Protection Agency’s order direct-

ing Chrysler to recail 208,000 vehicles which failed to

conform to applicable emission standards where the non-

conformity is caused by illegal misadjustment and tamper-

ing with emission control equipment by owners and

mechanics contrary to the manufacturer’s instructions

and when the agency’s enabling statute authorizes the

recall order only when the nonconforming vehicles are

found to have been properly maintained?

8. In this case of first impression under the Clean

Air Act, did the United States Court of Appeals for the

District of Columbia Circuit err in defining the statu-

tory requirement of “properly maintained” in section 207

(c) (1) in a manner which is contrary to the definition

of proper maintenance expressly set forth in an adjoin-

ing subsection of the Clean Air Act and contrary to the

meaning of proper maintenance as it is understood as

a term of art in the automobile industry and at EPA?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED .................. a

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

A. The Court Below Interpreted Section 207 (c) (1)

of the Clean Air Act So As To Defeat the Plain

Language of the Statute and Substitute Its

Version of the Statute for that Enacted by

Congress

B. By Ignoring Congress’ Intention that the Ser-

vice Industry Bear Primary Responsibility for

the Proper Maintenance of Vehicles in Actual

Use, The Court of Appeals Mistakenly Held This

Manufacturer Responsible for the Improper and

Often Illegal Actions of Owners and Mechanics..

CONCLUSION ..

(iii)

PRECEDING PAGE WAS BLANK

.

10

12

iv

TABLE OF AUTHORITIES

CASES Page

Blue Chip Stamps v. Manor Drug Stores, 421 U.S.

723 (1975) 15

Caminetti v. United States, 242 U.S. 470 (1917)... 14

Harrison v. PPG Industries, Inc., 100 S. Ct. 1889

i epaPR RSPR AEB TY ISLC i 0. Mia Aw ETRE 14

United States v. Great Northern Railway Co., 348

U.S. 562 (1952) ........... 15

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 485 U.S. 519

(1978) 10

CLEAN AIR ACT

§ 203 (a) (3), 42 U.S.C. § 1857f-2(a) (3) (1976) ..5, 10, 20

§ 203(a) (3)(B), 42 U.S.C. §7522(a) (2) (B)

COIs Se NINO sastalicak deraathspilicertasiiats an priniduiieidealaapicninaes 21

§ 205, 42 U.S.C. § 1857f-4 (1976) 5, 10

§ 207 (b) (2), 42 U.S.C. § 1857f-5a(b) (2) (1976).. 3

§ 207 (b) (2) (A), 42 U.S.C. § 1857f-5a(b) (2) (A)

(1976) ........... sidaicet ae belie 11

§ 207(c) (1), 42 U.S.C. § 1857f-5a(c) (1) (1976).. 3,11

§ 207 (c) (3), 42 U.S.C. § 1857f-5a(c) (3) (1976).. 4,11,

13

§ 210, 42 U.S.C. § 1857f-6b (1976) -..00 20

§ 307(b), 42 U.S.C. § 7607(b) (Supp. II 1978)... 6

STATUTES

Ca BRIG) CERIO) acs icccessctctonstecenennnine 2

REGULATIONS

| OCP R SOlerees 119%) |... 11, 18

\40 C.F.R. § 85.075-89 (1976) .. Wr eS

v

TABLE OF AUTHORITIES—Continued

‘MISCELLANEOUS Page

42 Fed. Reg. 56298 (1977) 10

House Comm. on Interstate and Foreign Com-

merce, Report on Clean Air Act Amendments of

1977, H.R. REP. No. 95-294, 95th Cong., 1st Sess.

RATS icncinkeune 2 20, 21

Senate Comm. on Environment and Public Works,

Report on Clean Air Act Amendments of 1977,

S. REP. No. 95-127, 95th Cong., Ist Sess. (1977) .. 20, 22

1 United States Environmental Protection Agency,

General Counsel Opinions “Air Pollution’ 105

(1979) .. fos 11, 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

: No.

CHRYSLER CORPORATION,

Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

and DouGLas M. CosTLe, Administrator,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

OPINIONS BELOW

The Initial Decision, Findings of Fact and Conclusions

of Law, and Order of the Administrative Law Judge

(“ALJ”), dated February 10, 1978, finding that the

United States Environmental Protection Agency (“EPA”)

had properly issued a Recall Order directing Chrysler

to submit a plan for remedying the nonconformity of

all 1975 vehicles equipped with 360 and 400 cubic inch

displacement (CID) engines having two-barrel carbure-

tors and catalytic converters, are unreported and are

reprinted as Appendix C.

Chrysler appealed the decision of the ALJ to Douglas

M. Costle, Administrator of the EPA. The Decision and

2

Order of Administrator Costle, dated November 20, 1978,

upholding EPA’s Recall Order to Chrysler, is unre-

ported and is reprinted as Appendix B.

The opinion of the United States Court of Appeals for

the District of Columbia Circuit, dated June 19, 1980,

affirming the Decision and Order of the EPA, Adminis-

trator, is unreported and is reprinted as Appendix A.

JURISDICTION

The judgment of the Court of Appeals for the District

of Columbia Circuit as to which certiorari is sought was

entered June 19, 1980 (Appendix D). The instant pe-

tition is being filed within 90 days of June 19, 1980,

the date of the judgment appealed from. The jurisdic-

tion of this Court is invoked under 28 U.S.C. § 1254

(1) (1976).

STATUTORY PROVISIONS INVOLVED

Section 207(c) (1) of the 1970 Clean Air Act amend-

ments’ is the applicable recall provision and provides:

(1) If the administrator determines that a sub-

stantial number of any class or category of vehicles

or engines, although properly maintained and used,

do not conform to the regulations prescribed under

section 1857f-1 of this title, when in actual use

throughout their useful life (as determined under

section 1857f-1(d) of this title), he shall immedi-

ately notify the manufacturer thereof of such non-

conformity, and he shall require the manufacturer

1The recall order was initially issued on December 8, 1976

for vehicles built during the 1975 model year (August, 1974 to

July, 1975). Thus the 1970 Clean Air Act amendments are appli-

cable. The Clean Air Act was further amended and the Act’s

sections redesignated in 1977. Parallel citations are given to both

the applicable and current sections in Appendix E.

eI

to submit a plan for remedying the nonconformity

of the vehicles or engines with respect to which such

notification is given. The plan shall provide that the

nonconformity of any such vehicles or engines which

are properly used and maintained will be remedied

at the expense of the manufacturer. If the manu-

facturer disagrees with such determination of non-

conforinity and so advises the Administrator, the

Administrator shall afford the manufacturer and

other interested persons an opportunity to present

their views and evidence in support thereof at a

public hearing. Unless, as a result of such hearing

the Administrator withdraws such determination of

nonconformity, he shall, within 60 days after the

completion of such hearing, order the manufacturer

to provide prompt notification of such nonconformity

in accordance with paragraph (2). [42 U.S.C.

§ 1857f-5a(c) (1) (1976) (emphasis added).]

It is Chrysler’s position that “properly maintained”

as used in section 207(c) (1) should be defined consis-

tently with the maintenance provision of the adjoining

section, section 207(b) (2), which imposes a performance

warranty for emission control equipment upon the ve-

hicle manufacturer for the benefit of the ultimate pur-

chaser and each subsequent purchaser. Section 207(b)

(2) provides:

(2) at such time as he [the EPA Administrator]

determines that inspection facilities or equipment

are available for purposes of carrying out testing

methods and procedures established under paragraph

(1), he shall prescribe regulations which shall re-

quire manufacturers to warrant the emission con-

trol device or system of each new motor vehicle or

new motor vehicle engine to which a regulation un-

der section 1857f-1 of this title applies and which

is manufactured in a model year beginning after

the Administrator first prescribes warranty regula-

tions under this paragraph (2). The warranty under

4

such regulations shall run to the ultimate pur-

chaser and each subsequent purchaser and shall pro-

vide that if—-

(A) the vehicle or engine is maintained and

operated in accordance with instructions under

subsection (c)(3) of this section,

(B) it fails to conform at any time during

its useful life (as determined under section

1857f-1(d) of this title) to the regulations

prescribed under section 1857f-1 of this title,

and

(C) such nonconformity results in the ulti-

mate purchaser (or any subsequent purchaser)

of such vehicle or engine having tw bear any pen-

alty or other sanction (including the denial of

the right to use such vehicle or engine) under

State or Federal law,

then such manufacturer shall remedy such noncon-

formity under such warranty with the cost thereof

to be borne by the manufacturer. [42 U.S.C. § 1857f-

5a(b) (2) (1976) (emphasis added) .]

Section 207(c) (8), referred to above in section 207

(b) (2) (A), provides:

(3) The manufacturer shall furnish with each

new motor vehicle or motor vehicle engine such

written instructions for the maintenance and use

of the vehicle or engine by the ultimate purchaser

as may be reasonable and necessary to assure the

proper functioning of emission control devices and

systems. In addition, the manufacturer shall indi-

cate by means of a label or tag permanently affixed

to such vehicle or engine that such vehicle or engine

is covered by a certificate of conformity issued for

the purpose of assuring achievement of emissions

standards prescribed under section 1857f-1 of this

title. Such label or tag shall contain such other

information relating to control of motor vehicle emis-

sions as the Administrator shall prescribe by regu-

lation. [42 U.S.C. § 1857f-5a(c)(3) (1976) (em-

phasis added).]

Section 203(a) (8) of the Clean Air Act states that

it shall be a prohibited act:

(3) for any person to remove or render inop-

erative any device or element of design installed

on or in a motor vehicle or motor vehicle engine

in compliance with regulations under this subchap-

ter prior to its sale and delivery to the ultimate

purchaser, or for any manufacturer or dealer know-

ingly to remove or render inoperative any such de-

vice or element of design after such sale and delivery

to the ultimate purchaser; [42 U.S.C. § 1857f-2(a)

(3) (1976).]

Section 205 of the Clean Air Act imposes a civil

penalty for tampering with emission control equinment

and provides:

Any person who violates paragraph (1), (2),

(3), or (4) of section 1857f-2(a) of this title shall

be subject to a civil penalty of not more than $10,000.

Any such violation with respect to paragraph (1),

(2), or (4) of section 1857f-2(a) of this title shall

constitute a separate offense with respect to each

motor vehicle or motor vehicle engine. [42 U.S.C.

§ 1857f-4 (1976).]

The full text of all of the above statutes and the other

sections of the Clean Air Act referred to herein are

set out in Appendix E.

STATEMENT OF THE CASE

This petition for certiorari concerns the validity of an

order (“Recall Order”) issued by the Administrator of

the EPA directing Chrysler to recall 208,000 1975 model

year vehicles equipped with 360 and 400 cubic inch dis-

6

placement (CID) engines having two-barrel carburetors

and catalytic converters. The Recall Order was os-

tensibly issued pursuant to section 207(c)(1) of the

Clean Air Act, and alleged that a substantial number of

vehicles in the recall class when in actual use exceeded

the 1975 federal standard for carbon monoxide (CO),

although properly maintained and used.

Chrysler exhausted its administrative remedies by re-

questing a hearing before an Administrative Law Judge

in which Chrysler contested the Recall Order and by

appealing the ALJ’s adverse decision to the Adminis-

trator of the EPA who upheld and reissued the Recall

Order on November 20, 1978. Thereupon, pursuant to

section 307(b) of the Clean Air Act, 42 U.S.C. § 7607

(b) (Supp. II 1978), Chrysler appealed the Adminis-

trator’s final order to the United States Court of Ap-

peals for the District of Columbia Circuit which af-

firmed the Decision and Order of the EPA Administrator.

This case is one of first impression and presents an

important question of statutory interpretation under sec-

tion 207(c) (1) of the Clean Air Act, as all parties

have recognized from the outset of this dispute. EPA’s

initial recall letter, as well as the final order of the

Administrator approving the recall, and the decision of

the United States Court of Appeals for the District of

Columbia Circuit all acknowledged that the overriding

legal issue presented here is whether vehicles which have

been misadjusted, contrary to the manufacturer’s instruc-

tions, can be considered properly maintained for pur-

poses of ordering a manufacturer to recall the vehicles

for modification pursuant to section 207(c) (1). Thus,

this case raises for the first time the question of who

is responsible for the proper maintenance of vehicles

which have left the manufacturer’s control and are in

actual use on the road. The material facts as found by

the Court of Appeals or as otherwise undisputed are

summarized below.

7

The 1975 model year standard for carbon monoxide

(CO) was 15 grams/mile as measured by the Federal

Test Procedure, down from 39 grams/mile in 1974. To

achieve this lower emission level, Chrysler engineers added

to the 1975 model year vehicles a new emission control

device called a catalytic converter. Preproduction testing

confirmed that Chrysler could meet the new federal

standard using the catalytic converter without an auxil-

iary air pump.

The other principal components of the emission control

system utilized in the recall vehicles were carried over

from the previous model year. The entire emission con-

trol system was well within the state-of-the-art at the

time of its design and manufacture. In particular, Chrys-

ler’s carburetor, which EPA alleges was deficient, was

similar to what other domestic and foreign manufactur-

ers were using at the time. App. A, p. 18a n.46.

Before production of the 1975 models began in the

summer ef 1974, Chrysler, as required by the Clean Air

Act, submitted to EPA for its review the design speci-

fications for these vehicles, the recommended maintenance

instructions, and prototype vehicles for emission testing.

App. A, p. 64a. The maintenance instructions specific-

ally included the idle set procedures at issue in this case.

Based on this information and the actual emission test

results of the prototypes, EPA certified that these ve-

hicles conformed with federal emission standards and all

applicable regulations, thus permitting their production

and sale. App. A, p. 18a. EPA also approved Chrys-

ler’s proposed maintenance instructions for the recall

vehicles. App. A, p. 64a.

As part of its in-use testing, EPA, in 1976, con-

tracted with Olson Laboratories to run tests on recall

class vehicles in the Detroit area. Ten vehicles of each

recall class were secured and the Federal Test Pro-

cedure, used to certify compliance with applicable stand-

ards, was run twice on each Chrysler vehicle—once in

the “‘as received” condition and once “after maintenance,”

that is, with the idle air/fuel mixture screw and other

vehicle parameters set as prescribed in Chrysler’s in-

structions. App. A, p. 24a. EPA also gathered the test

results of recall class vehicles involved in a different

EPA study program (the so-called “Emission Factor”

Program) and reviewed reports of state inspection/

maintenance programs for the recall class vehicles. These

two programs, however, testeu vehicles without regard

to their state of maintenance and the state inspection/

maintenance programs did not use the Federal Test

Procedure. App. A, pp. 22a-23a.

The results of the Olson investigation were communi-

cated to Chrysler in December, 1976, in a letter in which

the EPA demanded recall of the vehicles for excessive CO

emissions. The Olson results communicated to Chrysler

were as follows:

860’s 400’s

As After As After

Received Maint. Received Maint.

Number Tested 10 10 10 10

Percent Over

Standard

co 100% 20% 80% 80%

EPA founu that the excessive CO in the “as received”

vehicles was due to misadjustment of the idle caused

by persons in the field adjusting the idle mixture screws

contrary to the manufacturer’s instructions. See App.

A, p. 3a; App. B, pp. 74a-75a.

The Chrysler-specified method for setting the idle on

these vehicles was submitted to EPA for its approval

prior to production and is affixed to the vehicle by means

of an underhood label reading in part:

Use exhaust analyzer, placed in probe tap in front

of catalytic converter. Adjust idle speed screw and

mixture screws to give .8% carbon monoxide * * *

with lowest hydrocarbons or smoothest idle at 750

RPM.

EPA approved Chrysler’s idle set procedure as being in

compliance with its regulations regarding “reasonable

and necessary” written maintenance instructions to be

provided to the ultimate purchaser. App. A, p. 64a.

Exhaust analyzers, which measure concentrations of

specified gases, are .vailable for purchase (and have

been since about 1970) ,? are widely used by EPA in state

inspection programs for emission measurements, are

recommended by the National Academy of Science for

diagnostic garage service work,® are conceded to be the

most accurate method of setting idle to an emission speci-

fication,s and can be used accurately by mechanics of

average ability.®

When idle mixture screws of vehicles of the recall class

are set in accordance with Chrysler’s recommended pro-

cedures, the vast majority of these vehicles meet the ap-

plicable federal emission standards throughout their

statutory useful lives (five years or 50,000 miles). App.

A, p. 10a.

2 Joint Appendix filed in the court below at 1:47 (hereinafter

cited as “J.A. —:—”). [A copy of the Joint Appendix has been

lodged with the Clerk of this Court.]

8 J.A. IV:1304, 1342.

4J.A. I1:799-801.

5 App. A, p. 6la n.145.

10

REASONS FOR GRANTING THE WRIT

This case presents an important question of first im-

pression under the Clean Air Act concerning who is

responsible—the manufacturer or the mechanic/owner—

for improper maintenance of emission control equipment

on vehicles which have left the manufacturer’s control

and are in actual use on the road. In this case it is undis-

puted that emission nonconformities in the recall vehicles

are caused by misadjustments by mechanics and owners

of the idle set screw, contrury to the manufacturer’s in-

structions. When done by mechanics, such acts constitute

illegal “tampering” with the vehicle punishable by a civil

penalty. See Clean Air Act §§ 203(a) (3) and 205, 42

U.S.C. §§ 1857f-2\a) (3) and 1857f-4 (1976). Despite

this penalty, it is also undisputed that such intentional

tampering is widespread throughout the service industry

and common on all models of domestic automobiles. See,

e.g., 42 Fed. Reg. 56298 (1977). Nowhere in its 66-page

opinion does the court below treat this undisputed evi-

dence of pervasive tampering and misadjustment by me-

chanics and owners; instead, it reaches its own conclu-

sion that manufacturers are responsible for failing to

foresee and prevent tampering and intentional misad-

justments of the emission control system.

The court’s rationale for why EPA’s Recall Order is

proper here has no support in the underlying Clean Air

Act or in the relevant legislative history. Rather, this

ease is a disturbing example of the tendency of some

courts in recent years to expand by judicial fiat the au-

thority of regulatory agencies beyond the plain limitations

set down by Congress in the agency’s enabling legislation.

This Court has tried to arrest this trend on several

occasions in recent years,® but as this case dramatically

6 See, €.g., Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519 (1978).

11

illustrates, some courts have continued to place their own

views of the public interest ahead of the clear mandate

of the legislation duly enacted by Congress.

In this instance Congress expressly provided that, for

purposes of section 207(b) of the Clean Air Act, a motor

vehicle is properly maintained when it has been main-

tained in accordance with the manufacturer’s instructions

as approved by EPA. See Clean Air Act, §§ 207(b) (2) (A)

and 207(c) (3), 42 U.S.C. §§ 1857f-5a(b) (2) (A) and

1857f-5a(c) (3) (1976). See also 40 C.F.R. 35 85.075-38,

39 (1976). Congress in section 207(c) then expressly

limited the recall power of EPA to vehicles in actual use

which fail to comply with applicable emission standards

“although properly maintained and used.” Clean Air Act,

§ 207(c) (1), 42 U.S.C. § 1857f-5a(c) (1) (1976).

Chrysler contends that Congress clearly intended “prop-

erly maintained” in section 207(c) (1) to mean the same

thing it does in section 207(b); that is, as defined in

section 207(c) (3) ‘to be in accordance with the manu-

facturer’s written instructions for the maintenance and

use of the vehicle. The published opinions of EPA’s Gen-

eral Counsel agree. See 1 United States Environmental

Protection Agency, General Counsel Opinions “Air Pollu-

tion” 105 (1979). EPA and the court below reached a

different conclusion by disregarding the plain meaning

of the statute and the intent of Congress.

The Administrator below found that the recall vehicles

were emitting excessive CO due to improper adjustment

by owners and mechanics of the air/fuel idle mixture in

carburetors in the recall vehicles contrary to the manu-

facturer’s instructions. App. B, pp. 74a-75a. Realizing

that section 207(c) (1), as written, did not authorize a

recall order to the manufacturer in such circumstances,

the Administrator arrogated to himself the power to

amend section 207(c) (1) by openly and expressly adding

what he called a “further gloss” to the statute of his own

12

creation. App. B, p. 78a. The Court of Appeals allowed

the Recall Order to stand by accepting the Administra-

tor’s “further gloss” on section 207(c) (1) and by adding

its own gloss to the statute. The court’s gloss is vari-

ously formulated, but is to the effect that EPA may order

a recall even when the nonconforming vehicles are not

being properly maintained by owners and mechanics if

the improper maintenance by owners and mechanics was

foreseeable by the manufacturer and it was within the

practical ability of the manufacturer to reduce the impact

of the improper maintenance by designing the vehicle

differently. App. A, p. 50a.

The court’s gloss also means the manufacturer will be

second guessed, even though its design is within the state-

of-the-art, if later designs prove more resistant to illegal

tampering. Unless the faulty holding of the Court of

Appeals is corrected by this Court, the intent of Con-

gress to allocate responsibility for proper maintenance

on veicles in use to owners and mechanics will be frus-

trated, and a manufacturer will suffer the enormous cost

and unjustified expense of recalling over 208,000 vehicles

due to the illegal or improper acts of others outside the

manufacturer’s control.

A. The Court Below Interpreted Section 207(c)(1) of

the Clean Air Act So As To Defeat the Piain Language

of the Statute and Substitute its Version of the Stat-

ute for that Enacted by Congress.

As the statute makes clear, and all parties agree,

EPA’s recall authority under section 207(c) (1) is con-

tingent upon EPA’s “proving that a substantial number

of in-use vehicles of the recall class exceed the applicable

Federal emission standard although properly maintained

and used.” See App. B, p. 77a; App. A, p. 34a. The

Administrative Law Judge found: “It is clear that the

phrase ‘properly maintained and used’ contained in Sec.

13

-207(c) (1) is synonymous with the statement in Sec.

207(b) (2) (A) that a vehicle be ‘maintained and oper-

ated in accordance with instructions under subsection

(ec) (8).’” App. C, p. 180a. That subsection requires an

automobile manufacturer to:

[f]urnish with each new motor vehicle * * * such

written instructions for the maintenance and use

of the vehicle or engine by the ultimate purchaser

as may be reasonable and necessary to assure the

proper functioning of emission control devices and

systems. [42 U.S.C. § 1857f-5a(c) (3) (1976).]

The Administrator himself noted that this definition was

“consistent with the related warranty provisions of Sec-

tion 207 of the Act” and the technical meaning of the

term in the industry. App. B, pp. 75a-76a.7 EPA’s own

General Counsel has reached the same conclusion and

stated that “the ‘properly maintained and used’ language

of §207(c)(1) * * * refer[s] to the maintenance de-

scribed in § 207(c) (3).” 1 United States Environmental

Protection Agency, General Counsel Opinions “Air Pol-

lution” 105, 111 (1979).

Given this clear and correct interpretation of the mean-

ing of the phrase “properly maintained” in section 207

by EPA, there is a jarring inconsistency in the issuance

of the Recall Order since the Administrator readily

admits:

[T]he record in this proceeding conclusively estab-

lishes that the cause of excessive carbon monoxide

7 Chrysler’s position would not mean that a manufacturer would

be free to specify technical or difficult maintenance instruction

because EPA must review such instructions for feasibility and

reasonableness during certification of vehicle design prior to manu-

facture. See 40 C.F.R. §§ 85.075-38, 89 (1976). Further, the Court

of Appeals here found that in 1974 EPA approved Chrysler’s

maintenance instructions for the recall vehicles as “reasonable and

necessary to assure the proper function” of the emission control

system. App. A, p. 64a.

14

emissions in the Chrysler recall class vehicles is at-

tributable to misadjustments of the carburetor idle

mixture adjustment and that such misadjustments

were performed in a manner inconsistent with or

contrary to the manufacturer’s written specifica-

tions. [App. B, p. 75a. (emphasis added).]

Thus, in the Administrator’s own words, the noncon-

formity of the vehicles at issue has been conclusively

established to have been caused by a failure of the cars

to be properly maintained.

Faced with the fact that this Recall Order cannot be

sustained based on the plain language of the statute, the

court below followed the Administrator in adding a

“further gloss” to section 207(c) (1) which, stripped of

its camouflage, is nothing more than an attempt to con-

jure up the power to recall vehicles that were not prop-

erly maintained when Congress has not conferred that

power upon EPA.

Both the court below and the Administrator try to

justify their interpretation of section 207(c) (1) by look-

ing beyond the clear words of the statute to their own

notion of what the proper allocation of responsibility

should be between manufacturer, mechanic and owner

for the proper maintenance of emission equipment on

vehicles in use on the highways. This type of reason-

ing violates this Court’s recent admonition in Harrison

v. PPG Industries, Inc., 100 S. Ct. 1889, 1894-98 (1980),

that statutes which are clear on their face should be

interpreted as such and should not be amended by ju-

dicial fiat because the court believes a different rule would

better serve its view of the public interest.

When, as here, the statutory meaning is clearly re-

vealed by the words of the statute itself, there is no

warrant for looking outside the four corners of the

statute for clues to its meaning. Caminetti v. United

States, 242 U.S. 470, 485 (1917). Only “unmistakable

15

support in the history and structure of the legislation”

can justify the rejection of otherwise unambiguous lan-

guage. Blue Chip Stamps v. Manor Drug Stores, 421

U.S. 723, 756 (1975) (Powell, J. concurring). By ap-

proving the Administrator’s “further gloss” on section

207(c) (1), the court below violated its duty “to apply

statutes on the basis of what Congress has written, not

what Congress might have written.” United States v.

Great Northern Railway Co., 343 U.S. 562, 575 (1952).

The court below rejects Chrysler’s contention that sec-

tion 207(c) (1) is clear on its face for two reasons. After

conceding, as it must, that proper maintenance for pur-

poses of section 207(b) (2) (A) of the Clean Air Act is

defined by section 207(c) (3) as maintenance in accord-

ance with the manufacturer’s written instructions, the

court observes that section 207(c) (1) reads “properly

maintained and used” without express reference to the

manufacturer’s written instructions. Even though sec-

tion 207(c) (3) is part of the same statutory subpart of

the Clean Air Act as section 207(c) (1), and even though

both subparts were enacted by Congress contemporane-

ously, the court asserts that Congress “may” have meant

something very different in section 207(c) (1) because it

did not refer to section 207 (c) (3) explicitly.

While admitting that Chrysler’s definition, the ALJ’s

definition, the EPA General Counsel’s definition and the

industry’s definition of “properly maintained” as that set

out in section 207(c) (3) is “plausible,” the court specu-

lates that in the context of section 207(c) (1) it is “pos-

sible * * * that Congress intended” properly maintained

to have a different meaning. App. A, p. 43a.

The court’s specious reasoning derives from its con-

cern that EPA “might not be able to obtain precise

documentation of the maintenance ‘hat was performed”

on vehicles in a proposed recall clas: and thus have dif-

ficulty proving proper maintenance. The court contrasts

16

EPA’s position in this regard with that of an owner

who has ready access to maintenance information about

his own car in a warranty action under section 207 (b)

(2)(A). App. A, p. 48a. This concern about EPA’s

access to maintenance information, even if it were jus-

tified, would be no basis on which to imply a new defini-

tion of “properly maintained” contrary to that expressly

identified by Congress.

But in any event, obtaining detailed maintenance in-

formation from owners is not essential for EPA to

justify a recall under section 207(c) (1). Here, for ex-

ample, EPA could have justified a recall order against

Chrysler without any information about past mainte-

nance of the recall vehicles by showing that when the

carburetors of the recall vehicles are adjusted to Chrys-

ler’s specifications a substantial number of them still

emit excessive CO. EPA’s own Olson tests in this case,

however, show exactly the opposite, namely that the vast

majority of the recall vehicles meet the applicable CO

standard in actual use when properly adjusted. Thus,

the court is plainly wrong that section 207(c) (1) must

be read inconsistently with section 207(c) (3) in order

for EPA to preserve an effective recall power under

section 207 (c) (1).®

8 Contrary to the implication of the court’s opinion, numerous

recalls can and have been carried out to date, without the need for

detailed maintenance information by EPA and with the voluntary

cooperation of automobile manufacturers, where in-use testing sug-

gested that the prototype vehicle certified by EPA unexpectedly

deteriorated in use to the point that the vehicles could no longer

meet the applicable emission standards and remedial repairs were

necessary.

This recall is contested because these vehicles not only complied

with applicable emission standards when sold by Chrysler, but

they will continue to do so in use if they are properly maintained

by owners and mechanics. There has been no deterioration in the

system or any of its parts.

17

The court also justifies reading sections 207(c) (1)

and 207(c) (3) differently on the meaning of “properly

maintained” because section 207(c)(1) contains the

phrase “when in actual use.” App. A, p. 44a. The court

states this language shows “Congress was concerned with

everyday conditions, not with an ideal world in which

the technical instructions of the manufacturer are obeyed

to the letter.” Jd. This may be true, but it is beside the

point. Chrysler does not oppose this Recall Order on the

ground there has been some technical or trivial failure

by owners and mechanics to maintain the recall vehicles

properly. Rather, the undisputed evidence shows and the

Administrator found that the recall vehicles are not in

compliance due to intentional gross misadjustments of the

carburetor by owners and mechanics contrary to the ex-

press instructions of the manufacturer and in violation

of the anti-tampering provisions of the Clean Air Act.

See text at p. 11, supra. In sum, the court below offers

no compelling reason for rejecting the plain language

of section 207(c) (1) and for defining “properly main-

tained” there differently than Congress expressly did in

subparts (b) (2) (A) and (c) (3) of the same statute.

B. By Ignoring Congress’ Intention that the Service In-

dustry Bear Primary Responsibility for the Proper

Maintenance of Vehicles in Actual Use, the Court of

Appeals Mistakenly Held This Manufacturer Respon-

sible for the Improper and Often Illegal Actions of

Owners and Mechanics.

Brushing aside the clear language of section 207(c)

(1), the court below purported to define the meaning of

the “properly maintained” language in this section based

on the underlying legislative history and the statutory

scheme of the Clean Air Act. Remarkably, however, the

court below fails to cite any evidence in the legislative

history of section 207(c)(1) which supports its claim

that Congress intended to impose absolute liability on

18

the manufacturer for in-use nonconformities even in the

face of intentional tampering. Rather, the legislative his-

tory plainly shows that Congress required that manu-

facturers produce cars which would meet applicable emis-

sion standards if maintained by owners and mechanics

using “reasonable and necessary maintenance proce-

dures” approved by EPA. There is no warrant in the

legislative history for rewriting section 207(c) (1) along

the lines proposed by the court and the Administrator

below.

The portions of the legislative history cited by the

court below show only that Congress was very concerned

with the problem of clean air and allocated responsibility

for ensuring that the emission standards were met not

only to the manufacturer, but to the vehicie owner and

mechanic as well. App. A, pp. 44a-48a. Congress recog-

nized that a partnership between manufacturer, owner

and mechanic was necessary. In fact, in one portion of

the legislative history quoted by the court below, Senator

Muskie acknowledges that “it is not presently possible

[for manufacturers] to build a maintenance-proof clean

ear,” but that it is possible for manufacturers to build

“durable” systems which will work satisfactorily if main-

tained properly by the owner. App. A, p. 46a. Senator

Muskie emphasized, however, that without both manu-

facturer and owner working together the objective of

cleaner air could not be realized. The court below ac-

knowledged all of this, but placed no weight on it.

Instead, the court below relies on an ambiguous col-

loquy between Senators Allott and Muskie to conclude

that the primary responsibility for proper maintenance

of emission control equipment on vehicles in actual use

rests with the manufacturers of those vehicles and not

with the service industry whose job it is to maintain

those vehicles. App. A, pp. 44a-48a. After noting that

Senator Allott complained that obtaining competent main-

19

tenance was very difficult these days, the court quotes

at length from Senator Muskie’s response to the effect

that Congress cannot solve the problem of poor main-

tenance or create a maintenance capability throughout

the country, since “only the automobile industry can do

that.” Ibid. From this remark and this remark alone,

the court below infers that Congress intended to place

“primary responsibility on the design capability of the

manufacturers rather than on the maintenance capa-

bilities of mechanics and owners” in its effort to solve

the problem of proper maintenance.

The court’s conclusion does not follow from the pas-

sage relied upon, since whatever obligation car manu-

facturers may have to improve the education and train-

ing of mechanics across the country, that obligation does

not mean that when mechanics intentionally misadjust

carburetors on vehicles in violation of the anti-tampering

laws the manufacturer is responsible for correction of

this problem. In fact, the court admits that it was not

until EPA adopted new regulations in 1979 that the

manufacturer was obligated—starting with the 1981

model year—to construct engines which would pass fed-

eral emission standards even when misadjusted. App.

A, p. 51a. The present case attempts to apply this new

regulation retroactively to Chrysler’s 1975 model year.

In relying on the ambiguous colloquy between Senators

Allott and Muskie, the court below ignored much more

persuasive evidence of Congress’ intent, as disclosed in

the anti-tampering and after-sale inspection provisions

of the 1970 and 1977 Clean Air Act amendments, to

place the burden of overseeing and assuring proper

maintenance of in-use vehicles on the service industry

and on EPA and the states as the policemen of service

industry practices. There are inspection/maintenance

programs provided for in the Clean Air Act, along with

grants for such programs, clearly indicating Congress’

20

intent to place reliance on proper monitoring of the serv-

ice industry. Clean Air Act, § 210, 42 U.S.C. § 1857f-

6b (1976). Only by completely ignoring this clear evi-

dence of Congress’ intent could the court below have

reached the conclusion it did.

In 1970, Congress prohibited tainpering with emission

control equipment by manufacturers or dealers, Clean

Air Act, § 208(a) (3), 42 U.S.C. § 1857f-2(a) (3) (1976),

and made funds available to states to establish voluntary

inspection and emission control programs to monitor the

emission performance of vehicles in use and the type of

maintenance these vehicles were receiving by owners and

mechanics, Clean Air Act, § 210, 42 U.S.C. § 1857f-6b

(1976). Presumably, Congress, like the manufacturers,

believed these measures would be adequate to discourage

tampering and promote proper maintenance. Unfortun-

ately, as the facts of this case show, they are not.

Sometime after the 1975 model year cars were sold

and in use, investigations by EPA and others indicated

that illicit tampering with emission control devices by

owners and mechanics was becoming commonplace and

continuing on all makes of automobiles. In 1977, evi-

dence was submitted to Congress showing widespread

tampering and improper maintenance throughout the

service industry. House Comm. on Interstate and For-

eign Commerce, Report on Clean Air Act Amendments

of 1977, H.R. Rep. No. 95-294, 95th Cong., 1st Sess.

282-84 (1977) (hereinafter cited as “House Report on

Clean Air Act Amendments of 1977’). In fact, Congress

noted that in the wake of the energy crisis of 1974 and

thereafter a number of private garages had publicly

and extensively advertised emission control device re-

moval services. Senate Comm. on Environment and Pub-

lic Works, Report on Clean Air Act Amendments of

1977, S. Rep. No. 95-127, 95th Cong., Ist Sess. 78

(1977) (hereinafter cited as “Senate Report on Clean

21

Air Act Amendments of 1977”). Emission control re-

moval manuals were marketed. Ibid.

The states, Congress also determined, had not been

enforcing state anti-tampering laws effectively. Ibid.

Accordingly, in 1977, Congress strengthened the federal

anti-tampering provision by amending it to apply to

private garages as well as dealers and manufacturers.

Clean Air Act, § 203(a) (3)(B), 42 U.S.C. § 7522(a)

(3) (B) (Supp. II 1978). This amendment was intended

to help assure that emission control systems would func-

tion in the field as intended by the manufacturer and

to save fuel, since tampering often hurts (rather than

helps) fuel economy and engine durability. House Report

on Clean Air Act Amendments of 1977, supra, at 197-98.

In 1977, Congress also expanded and improved pro-

visions for state inspection and maintenance programs

primarily in order to reduce in-use vehicle emissions “by

ensuring that the emission levels of those vehicles are

not permitted to deteriorate due to inadequate or im-

proper maintenance.” House Report on Clean Air Act

Amendments of 1977, supra, at 282.

The actions of Congress in 1970 and 1977 and the

expressed reasons given by Congress for those actions,

speak far more clearly than the ambiguous colloquy

relied on by the court below between Senators Allott

and Muskie. These actions show that Congress intended

owners and mechanics (and not manufacturers) to be

responsible for the proper maintenance of emission con-

trol systems in vehicles in use. Even in 1977, Congress

did not require Detroit to produce a tamper-proof or

maintenance-proof car. Clearly, both in 1970 and 1977,

Congress was relying on owners and mechanics to main-

tain in-use vehicles properly and upon EPA and the

states to see to it that they did.

22

In fact, Congress has explicitly recognized that the mis-

adjustment of the idle mixture, for which the court

below attempts to hold Chrysler responsible, constitutes

“tampering.”

Tampering includes not only the removal of add-on

pollution control devices and the disconnection of ele-

ments in the pollution control system but it ex-

tends to the purposeful setting of engine adjust-

ments to other than manufacturers’ recommended

specifications. For example, the setting of the idle

fuel flow to result in excessively rich mixtures at

idle would be considered tampering. [Senate Re-

port on Clean Air Act Amendments of 1977, supra,

at 78-79 (emphasis added).]

Since Congress has plainly stated in unequivocal terms

that idle mixture misadjustments constitute tampering,

the court below cannot properly rely on an ambiguous

exchange of remarks between two senators to support its

claim that the recall vehicles herein which have been sub-

jected to such tampering are “properly maintained” un-

der section 207(c) (1).

The Administrator himself found that the misadjust-

ments occuring in the field on the recall vehicles are

intentional acts, many of which constitute illegal “tam-

pering,” prohibited by section 203(a) (3) of the Clean

Air Act. App. B, p. 12la. Further, a recent study by

EPA found that tampering is an industry-wide problem,

not limited to Chrysler vehicles. J.A. IV:1575-1684. The

court below avoids reference to these uncontested facts

in trying to pin responsibility on Chrysler for the mis-

adjustments which have occurred.

It is obvious that the carburetor misadjustments at

issue here were intentional, since Chrysler’s specified idle

setting stares out at the mechanic each time he opens

the hood. EPA’s own witness on mechanics’ capabilities

and knowledge testified that there was “generally good

23

knowledge [among mechanics] that they are not supposed

to do anything but adjust to manufacturer’s specifica-

tions.” J.A. I1:588. The Court of Appeals specifically

acknowledged that mechanics were capable of performing

Chrysler’s procedures but were not motivated to do so.

App. A, p. 6la n.145. Thus, the nonconformity of the

recall class vehicles is in the main attributable to deliber-

ate illegal acts by those who seel: to defeat the emission

control systems designed and installed by the manufac-

turer. In these circumstances, the appropriate remedy is

not recall at the expense of the manufacturer, as the

court below concludes, but to stop tampering through

vigorous enforcement of the laws and public education.

Unfortunately this has not been done either by EPA or

the states.

The Court of Appeals admits, as it must, that it makes

little sense to impose liability on the manufacturer for

emission nonconformities primarily caused by intentional

or negligent maintenance by owners and mechanics. App.

A, p. 49a. Ironically, it is precisely this type of inten-

tional and faulty maintenance by owners and mechanics

which the Administrator found causes the nonconformi-

ties in vehicles in the recall class. When properly ad-

justed, the recall vehicles do meet the applicable CO

standard in actual use.

To salvage this Recall Order on these facts, the court

below distorts the language of section 207(c) (1) be-

yond recognition and holds Chrysler responsible for mis-

adjustments of the recall vehicles made after the vehicles

have left Chrysler’s control and contrary to Chrysler’s

express instructions for proper maintenance. In so do-

ing, the court says:

[iJf a manufacturer knowingly used an emission

control system resulting in a large number of mis-

adjustments, instead of a less sensitive and more

durable system available to it, it should be held

24

responsible under the Act for the consequences and

be subject to a recall. [App. A, p. 50a.]

Chrysler vigorously denies that it is fair or in the public

interest to require manufacturers to foresee, and to take

every step to prevent, all forms of improper maintenance

which may occur given the design of their vehicles and

to bear the enormous cost of a recall if they fail to do

all they can to minimize the impact of improper main-

tenance in the field, or if their procedures were later

deemed “cumbersome.” To require manufacturers to do

so would make them virtual insurers of the maintenance

performed on their cars even though they have no con-

trol over the quality of that maintenance.

But what is in the public interest is not for Chrysler

or the court below to say, because Congress has spoken

directly to this issue in section 207(c)(1) and made

clear that the manufacturer’s duty extends to building

cars which are functional and which will meet the ap-

plicable emission standards throughout their statutory

useful life if properly maintained and used. The recall

vehicles will do that. Having found, along with the

ALJ and the Administrator, that the emission noncon-

formities in the recall vehicles are due to intentional

misadjustment by owners and mechanics, the court below

erred in ordering Chrysler to bear the enormous cost

of a recall for failing to do more to anticipate and

minimize the impact of the widespread tampering with

these vehicles by owners and mechanics which has

occurred.

25

CONCLUSION

For all of the above reasons, it is respectfully sug-

gested that certiorari be granted and that the judgment

of the Court of Appeals be reversed.

Respectfully submitted,

JAMES A. HOURIHAN

GAIL STARLING MARSHALL

HoGAN & HARTSON

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4500

Attorneys for Petitioner

September 8, 1980