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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 1021

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0397%3A1. Public record. Not legal advice.