Opposition Brief — General Motors Corp. v. United States

In the Supreme Court of the United States

OctTospEeR TERM, 1989

GENERAL MOTORS CORPORATION, PETITIONER

*.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

MARTIN W. MATZEN

Davin C. SHILTON

Attorneys

Department of Juatice

Washington, D.C. 20530

(202) 633-2217

—

Whether, if we assume that there is a four-month

time limit for Environmental Protection Agency

(EPA) review of revised state implementation plans

(SIPs) under Section 110(a)(3)(A) of the Clean

Air Act (42 U.S.C. 1

remedy for noncompliance is to bar the United States

from bringing or continuing an enforcement action

against a source cf pollutants for violating the terms

of the existing SIP.

(1)

TABLE OF CONTENTS

Page

CE EE 1

CE EEE X——————————— 1

Statement 7 2

r .... 7

Conclusion 8 16

TABLE OF AUTHORITIES

Cases:

American Cyanamid Co. v. EPA, 810 F.2d 493

CC —r NI. 6, 7, 8, 11

Brock v. Pierce County, 476 U.S. 253 (1986) 13

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) 3

Cook v. Hudson, 429 U.S. 165 (1976)... 15

Costle v. Pacific Legal Foundation, 445 U.S. 198

1 10

Council of Commuter Organizations v. Gorsuch,

683 F.2d 648 (2d Cir. 1982) —.. —

Council of Commuter Organizations v. Thomas,

799 F.2d 879 (2d Cir. 1988))) 8

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406

r / x

Duquesne Light Co. v. EPA, 698 F.2d 456 (D.C.

EE 6-7, 8, 11

Z. I. du Pont de Nemours & Co. v. Train, 430 U.S.

r ... 13

Rice v. Sioux City Memorial Park Cemetery, Inc.,

, 15

Train v. Natural Resources Defense Council, Ine.

r ̃ 2. 2,11

Triangle Improvement Council v. ‘Ritchie, 402 US.

ELE LEST 15

TVA V. Hill, 487 U.S. 153 . 13

United States v. Alcan Foil Products, Division of

Alcan Aluminum Corp,, 694 F. Supp. 1280 (W.D.

Ky. 1988), appeal pending, No. 88-6300 (6th

—— —. —!-Tßs '' 9, 14

IV | v

Cases Continued: Page a Page

United States v. Ford Motor Co., 814 F.2d 1099 46 Fed. Reg. (1981) :

(6th Cir.), cert. denied, 484 U.S. 822 (1987)... 11 D 4

United States v. National Steel cm. 767 F.2d 5. 51 r 4

1176 (6th Cir. 1986) — e 8-9 51 Fed. Reg. 43,304 (1986 1 1

Statutes : 54 Fed. Reg. 2214 (198990 %ͤ

0 N R. 99, 101st „Ist Sess. (1989) 14-15

Administrative Procedure Act: > 2323, — ag Ist Sess. (19890) 15

5 U.S. C. 555(b) ) — — 9 H.R. 3080, 101st Cong. Ist Sess. (1989) 15

5 UBL. 706(1) .. — — ** H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977) 12

Clean Air Act, 42 US. 0. 7401 et seq.: S. 1490, 101st Cong., Ist Sess. ( ————— 15

e 2 S. 1630, 101st Cong., Ist Sess. (1989) 15

80000. . 2

§ 110(a) (1), 42 U.S.C. 7410 () (()) 2

§ 110(a) (2), 42 U.S.C. 7410 (a) (e) 2. 9, 10

§ 110(a) (2) (A), 42 U.S.C. 7410 (a) (2) (A)... 2

§ 110(a) (2) (1), 42 U.S.C. 7410(a) (2) ( 2

11000 (3) (A), 42 U.S.C. 7410(a) (3) ). 2. 5, 8,

9, 10

§ 110(d), 42 U.S.C. 74100 % 2. 11

e 6 5, 11, 13, 14

118 (a), 42 U.S.C. 7413 (a)) 3

§ 113(b), 42 U.S.C. 7413 (-)) 5 3. 10

§ 113(b) (2), 42 U.S.C. 7413 (b (72 10-11, 13

118 (e), 42 U.S.C. 7418 ((e)) * 3

113 (q), 42 U.S.C. 74130 h) 4-5

§120,42U.S.C.7420.. 3. 14

5120 (d) (2), 42 U.S.C. 7420 (d) () 8

5120 (d) (3) (C) (ii), 42 U.S.C. 7420 (d) (3)

77 n, 3

§ 171(2), 42 U.S.C. 7501 ( 2

§ 172(b), 42 U.S.C. 7502(b) | 2

§ 172(b) (2), 42 U.S.C. 7502(b) (2) aad 5

§ 307(b) (), 42 U.S.C. 7607(b) (1) 12

Clean Air Act Amendments of 1977, Pub. L. No.

88-88, O1 Seat. s coccce cee cceeseeceseeeee. 2

Clean Air Amendments of 1970, Pub. L. No. 91-

e * 2

In the Supreme Court of the United States

OcToBER TERM, 1989

No. 89-369

GENERAL Motors CORPORATION, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 2a-

18a) is reported at 876 F.2d 1060. The opinion of

the district court (Pet. Supp. App. SA1-SA7) is

unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App.

la) was entered on June 7, 1989. The petition for a

writ of certiorari was filed on September 5, 1989.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

STATEMENT

1. The Clean Air Amendments of 1970 (Pub. L.

No. 91-604, 84 Stat. 1676) charge EPA with respon-

sibility for establishing National Ambient Air Quality

Standards (NAAQS) for pollutants which cause or

contribute to air pollution. §§ 108, 109, 42 U.S.C.

7408, 7409. Section 110(a)(1) of the Clean Air Act

requires each State to develop and submit to EPA for

approval, within nine months after EPA's promulga-

tion of NAAQS, an implementation plan designed to

achieve and maintain the NAAQS within the State.

42 U.S.C. 7410(a)(1). Section 110(a)(2), in turn,

requires EPA, within four months of receiving the

original state implementation plan (SIP), to deter-

mine whether the SIP meets certain statutory re-

quirements (42 U.S.C. 7410(a)(2)), including at-

tainment of applicable primary NAAQS “as expe-

ditiously as practicable” but generally no later than

three years from the date of approval of the SIP.

42 U.S.C. 7410(a)(2)(A). Section 110(a)(3)(A)

requires EPA to approve revisions to existing SIPs

if EPA determines that the revised SIP meets the re-

quirements applicable to original SIPs. 42 U.S.C.

7410(a)(3)(A). Sources of pollutants are subject

to the existing SIP, however, until the proposed revi-

sion is approved by both the State and EPA. Train

v. Natural Resources Defense Council, Inc., 421 U.S.

60, 92 (1975); 42 U.S.C. 7410(d). Unlike Section

110(a)(2), Section 110(a)(3)(A) contains no ex-

press time limit for acting on revisions.

The Clean Air Act Amendments of 1977 (Pub. L.

No, 95-95, 91 Stat. 685) added further requirements

for SIPs applicable to “nonattainment area[s]”"—

areas where air quality falls short of the NAAQS.

See Sections 110(a)(2)(1), 171(2), 172(b), 42

U.S.C, 7410(a)(2)(1), 7501(2), 7502(b). The

tn

2

= &

—

—

7888

tion to other factors) the size of the business, the

economic impact of the penalty on the business, and

the seciousness of the violation.” 42 U.S.C. 7413(b).

An additional means of enforcement is provided in

Section 120 (42 U.S.C. 7420). Under Section 120,

EPA may administratively assess a noncompliance

penalty against any major stationary source in vio-

lation of SIP emission limits. The penalty begins te

accrue when EPA issues a notice of noncompliance,

and is intended to remove the economic benefit of de-

layed compliance. 42 U.S.C. 7420(d)(2) and 3)

(C) (ii).

2. The entire State of Massachusetts is a non-

attainment area for the ozone NAAQS. In 1980, EPA

4

approved Massachusetts’ proposed non-attainment

area state implementation plan. This SIP required

the painting operations at petitioner’s Framingham

automobile assembly plant to meet increasingly strin-

gent limits on emissions of volatile organic compounds

(VOC), which contribute to ozone. Full compliance

was required by December 31, 1985. Pet. App. 6a.

On October 20, 1981, EPA published a policy state-

ment discussing the automobile industry’s conversion

from lacquer paints to basecoat/clearcoat (BC/

CC) technology, as a means of reducing VOC emis-

sions. 46 Fed. Reg. 51.387. EPA stated that it would

entertain proposed SIP revisions intended to allow

automakers until as late as the end of 1986 to install

new painting technology, with some plants requiring

until 1987 to convert. Id. at 51,387. Petitioner sub-

mitted requests consistent with the policy statement

for three of its assembly plants, but not for its Fram-

ingham plant. More than three years later, in No-

vember 1984, petitioner submitted to Massachusetts

a request to extend the December 31, 1985, compli-

ance date to give petitioner additional time to install

emission controls on the lacquer coating lines. In

June of 1985, however, petitioner changed its plans

and proposed converting the plant to BC/CC by the

summer of 1987. On December 30, 1985, one day

before the final compliance deadline in the SIP, Mass-

achusetts submitted to EPA a proposed SIP revision

extending petitioner’s compliance date to the summer

of 1987. Pet. App. 6a-7a.

EPA’s Region I office began reviewing the proposed

SIP revision while negotiating with petitioner and

the State in an attempt to resolve petitioner’s non-

compliance with the existing SIP by means of a de-

layed compliance order under Section 113(d) of the

Act, 42 U.S.C. 7413(d). The negotiations proved

fruitless, however. On July 2, 1986, EPA Region I

sent a draft proposal to disapprove the SIP revision

to EPA Headquarters. Pet. App. 7a. EPA’s notice

of proposed disapproval was published in the Federal

Register on December 2, 1986. 51 Fed. Reg. 43,394.

EPA pointed out (ibid.) that the proposed SIP revi-

sion failed to meet several of the criteria established

in EPA’s 1981 policy statement, and in particular

failed to require the implementation of reasonably

available control technology as expeditiously as prac-

ticable, as required by the Act. See Section 172(b)

(2), 42 U.S.C. 7502 (b) (2). On June 30, 1987, fol-

lowing the receipt of public comment on the proposed

SIP revision, Region I transmitted to EPA Head-

quarters a draft of a final decision disapproving the

proposed SIP revision. EPA published its final deci-

sion disapproving the proposed SIP revision on Sep-

tember 16, 1988. Pet. App. 7a-8a.

3. On August 17, 1987, the United States filed an

action against petitioner under Section 113 of the

Act, 42 U.S.C. 7413, to enforce the existing SIP's

1985 deadline. Pet. App. 7a-Sa. At that point, EPA

had published its proposed disapproval of the SIP

revision, but EPA headquarters had not yet acted on

Region I’s draft final decision of disapproval. The

complaint alleged violations by petitioner of the VOC

emission standards of the existing SIP from January

1, 1986, until petitioner shut down the plant in the

summer of 1987 to convert to the new basecoat/

clearcoat process. On petitioner’s motion, the district

court dismissed the action. The district court con-

strued Section 110(a)(3)(A) of the Act to impose a

four-month time limit on EPA’s review of SIP revi-

sions, and held that EPA was barred from enforcing

6

the existing SIP once the four months had passed.

Pet. Supp. App. SA1-SA7.

The court of appeals reversed and remanded. The

court agreed with the district court that the four-

month deadline explicitly imposed by the Act on

EPA’s review of original SIPs should also apply to

the review of SIP revisions. Although it found the

question “a close one” (Pet. App. lla), the court

concluded that Congress would not have wanted the

States’ policy choices “to be held hostage to the EPA’s

schedule” (id. at 12a). The court noted that, “by

imposing a four-month deadline on the EPA,” it

avoided the possibility that the Agency would have

assigned a lower priority to SIP revisions from First

Circuit states than to those from states in circuits that

had imposed a deadline” (ibid.).

The court of appeals refused, however, to follow

the Fifth Circuit’s holding in American Cyanamid

Co. v. EPA, 810 F.2d 493 (1987), that EPA is

barred from enforcing an existing SIP when EPA

takes more than four months to act on a proposed

SIP revision. The court reasoned that an enforce-

ment bar was too drastic a remedy for agency delay,

especially since it penalized the public’s interest in

clean air, rather than the agency (Pet. App. 14a).

The court also found it likely that EPA would fre-

quently need longer than four months to issue a con-

sidered ruling, and would therefore miss the deadline

even with the incentive of an enforcement bar (id. at

13a-14a). At the same time, the court rejected the

D.C. Cireuit's alternative approach. As the court

explained, the D.C. Circuit had held that, if a SIP

revision is ultimately rejected, “penalties may be as-

sessed retroactively, with interest, for the entire

period after the deadline” (Pet. App. 13a, citing

7 8

Duquesne Light Co. v. EPA, 698 F.2d 456 (1983)).

Seeking to “steer a middle course between these two

extremes” (Pet. App. 14a), the court concluded that

the appropriate remedies for agency inaction were

(1) a suit to compel agency action unreasonably de-

layed; or (2) a request by the subject of an enforce-

ment proceeding for reduction or elimination of pen-

alties during any period in which unreasonable

agency delay resulted in prejudice (id. at 14a-15a).

The court stated that the agency’s failure to act

within four months would not necessarily be unrea-

sonable (id. at 15a).

The court remanded the case to the district court

for further proceedings, and specified that, “if on re-

mand in this case, the district court finds that [peti-

tioner] was prejudiced by the Agency’s lengthy re-

view and that the delay was not justified or that

some portion of the delay was not justified, it may re-

duce the penalties in a manner it sees fit.” Pet. App.

15a. The court further observed that petitioner is

free to raise a variety of issues “concerning the equi-

ties of this case” before the district court on remand.

Id. at 17a.

ARGUMENT

The court of appeals correctly vacated the district

court’s dismissal of the government’s enforcement ac-

tion. If we assume for present purposes that a four-

month limit does apply to EPA’s review of SIP revi-

sions, the court of appeals properly concluded that

enforcement of the existing SIP is not barred if

EPA’s consideration of the SIP revision takes longer

than four months. Although the enforcement bar rul-

ing conflicts with the rationale of American Cyana-

mid Co. v. EPA, 810 F.2d 493 (5th Cir. 1987), and

although the issues raised by petitioner are not in-

8

substantial, we submit that granting review would

not be appropriate at this time because further pro-

ceedings in the district court may affect the outcome

of the case and because Congress is considering

amendments to the Clean Air Act which could re-

solve, or at least significantly alter, the contours of

the enforcement bar issue.

1. As the court of appeals recognized (Pet. App.

5a), Section 110 (a) (3) (A), which governs review

of SIP revisions, does not impose an explicit time

limit on the agency’s review.“ Nevertheless, the court

below, explicitly stating that the States in the First

Circuit thus would not be disadvantaged, agreed with

the rule adopted in three other circuits and applied

the four-month time limit for consideration of orig-

inal SIPs to EPA’s consideration of SIP revisions

(Pet. App. 1la-12a). See American Cyanamid Co.,

810 F.2d at 495 (four-month limit applies to SIP

revisions); Council of Commuter Orgnizations v.

Thomas, 799 F.2d 879, 888 (2d Cir. 1986) (same) ;

Council of Commuter Organizations v. Gorsuch, 683

F.2d 648, 651 n.2 (2d Cir. 1982) (same); Duquesne

Light Co. v. EPA, 698 F.2d 456, 471 (D.C. Cir.

1983) (same); but see United States v. National

1 Although the four-month limit issue is not presented in

the petition, the court’s holding that there is such a limit

forms a necessary predicate for petitioner’s argument that

enforcement is barred after four months. If the Court grants

the petition, it will be permissible for the United States to

argue, as an alternative ground for upholding the court of

appeals’ judgment reversing the dismissal of the enforcement

action, that there is no four-month time limit for EPA review

of SIP revisions. Dayton Bd. of Educ. v. Brinkman, 433 U.S.

406, 419 (1977). Because the court of appeals’ present deci-

sion is interlocutory, the United States could also present that

question to this Court in a petition from a final judgment.

— — —

Steel Corp., 767 F. 2d 1176, 1182-1183 n.1 (6th Cir.

1985) (four-month limit does not apply to SIP re-

visions). Although Section 110 (a) (3) (A) says only

that the revised SIP must meet the requirements of

Section 110 (a) (2), the courts (except for the Sixth

Cireuit) have found an implied requirement that

EPA meet the four-month limit found in Section

110(a)(2). In view of the fact that the statutory

language does not provide a four-month deadline, and

in view of the fact that Congress was explicit about

other deadlines in the Clean Air Act, the application

of the Section 110(a) (2) deadline for initial agency

approval of SIPs as a Section 110(a)(3)(A) dead-

line for subsequent agency review of SIP revisions is

unwarranted.

Sound reasons support the difference in applicable

deadlines suggested by the language of the statute.

SIP revisions frequently involve relaxation or delay

of strict emission control requirements, which, given

their sheer number and complexity (as well as the

requirement for notice and comment), cannot realis-

tically be processed so quickly. See Pet. App. 14a

(“EPA inevitably will often miss the deadline.”). A

four-month deadline is not necessary to uphold the

States’ role in the process; the Administrative Proce-

dure Act itself requires agencies to conclude matters

“within a reasonable time” (5 U.S.C. 555(b)) and

The Sixth Circuit is presently considering the United

States’ appeal from a decision holding, despite the Sixth

Circuit’s National Steel decision, that the four-month limit

applies to EPA’s review of SIP revisions, and that enforce-

ment of the existing SIP is barred after the four month

period passes. United States v. Alcan Foil Products, Division

of Alcan Aluminum Corp., 694 F. Supp. 1280 (W.D. Ky.

1988), appeal pending, No. 88-6300 (argued Aug. 3, 1989).

10

provides a remedy for agency action “unreasonably

delayed.” 5 U.S.C. 706(1); Costie v. Pacific Legal

Foundation, 445 U.S. 198, 220 n.14 (1980). As a

threshoid matter, then, we do not agree with the

court of appeals’ interpretation imposing a four-

month deadline on EPA’s SIP revision determination;

the lack of a deadline in the statute, however, pro-

vides an alternative ground for defending the judg-

ment of the court of appeals.

2. If the Section 110(a)(2) deadline does apply

to Section 110(a)(3)(A) revisions, the court of ap-

peals correctly concluded that EPA’s failure to meet

the deadline should not lead to an absolute bar of en-

forcement actions for violations of the original SIP

in the interval between the end of the four-month

deadline and the agency’s action on the revision. The

statute does not address the enforcement consequences

of the EPA’s failure to act within a specified period,

and the court found no “indication from Congress

that the public was to bear the brunt of the Agency’s

failure to observe a deadline.” Pet. App. 16a. The

court noted that Section 113(b) permits a court, in

assessing penalties, to “ ‘take into consideration (in

addition to other factors) the size of the business, the

economic impact of the penalty on the business, and

the seriousness of the violation’” (Pet. App. 15a)

and concluded that “giving the district court the

power to adjust the penalties will provide the Agency

with the necessary incentive to act without unreason-

able delay” (id. at 15a-16a).

The court of appeals’ analysis comports with the

statute. The statute states that EPA may bring an

action for penalties and injunctive relief whenever a

person is in violation of any requirement of an “ap-

plicable implementation plan.” §113(b)(2), 42

11

U.S.C. 7413 (b) (2). Without question, the existing

SIP remains the applicable“ plan even after the

State has submitted a proposed revision. See Section

110 (d), 42 U.S.C. 7410 (d); Train v. Natural Re-

sources Defense Council, Inc., 421 U.S. at 92;

American Cyanamid Co., 810 F.2d at 495; United

States v. Ford Motor Co., 814 F.2d 1099, 1102 (6th

Cir.), cert. denied, 484 U.S. 822 (1987); Duquesne

Light Co., 698 F.2d at 471. Thus, barring enforce-

ment actions after the four-month deadline would

create a category of immunity from Section 113 en-

forcement actions that the statute itself does not

envision.

The court of appeals properly rejected the conclu-

sion of the Fifth Circuit, in American Cyanamid Co.,

that barring enforcement of the applicable SIP if

EPA has not acted on a proposed revision within

four months would further the purposes of the Act.

The Fifth Circuit concluded that an enforcement bar

was necessary to penalize EPA for “contumacious-

ness,” to preserve the role of the States under the Act,

and to assure even-handed consideration of SIP re

vision requests. American Cyanamid Co., 810 F.2d

at 499. The court of appeals here persuasively re-

butted each of the Fifth Circuit’s policy justifications

for an enforcement bar. The penalty rationale fails

because “[i]f the EPA cannot enforce existing stand-

ards, it is the public and not the EPA that is hurt”

(Pet. App. 14a). The federalism rationale is equally

flawed, because an enforcement bar may not be in the

States’ interest (as Massachusetts itself recognized

here (id. at 16a)), and because the alternative reme-

dies suggested by the court “ensure that the interests

of the state need not yield too far” (ibid.). The spec-

ulative possibility that an enforcement action could

12

undermine even-handed administration and influence

the outcome of the final decision on a SIP revision

stems not from agency delay but from Congress’s de-

cision to assign both enforcement and SIP review re-

sponsibilities to the same agency (id. at 16a-17a). In

addition, Congress provided an adequate remedy for

anyone aggrieved by an allegedly biased decision by

providing for review of final agency decisions in the

courts of appeals. § 307 (b) (1), 42 U.S.C. 7607(b)

(1). Indeed, GM has invoked that remedy here (Pet.

App. 17a). Thus, as the court of appeals concluded,

an enforcement bar is not necessary to further the

purposes of the Act.

An enforcement bar, moreover, may have serious

adverse consequences. It could encourage industries

to propose last-minute SIP revision proposals for the

purpose of staying EPA enforcement actions and post-

poning compliance with SIP provisions which Con-

gress required to be achieved within the deadlines set

forth in the Act and the SIPs themselves. If existing

SIPs cannot be enforced by EPA, noncomplying

sources in States that propose revisions will gain un-

fair advantage over those in other States, and the

public will suffer from further delays in attainment

of national air quality standards, contrary to Con-

gress’s clear intent. See, e.g., H.R. Rep. No. 294, 95th

Cong., Ist Sess. 71-72 (1977).°

The facts of this case illustrate the negative results of an

enforcement bar. Petitioner had more than ample time (five

years) to bring its plant into compliance with the emission

limits of the 1980 SIP either by installing control devices on

its lacquer coating lines or by converting to the basecoat/

clearcoat process without undue delay. Instead of making

the investment necessary to achieve this result, petitioner

waited until shortly before the deadline to propose a solu-

tion (the basecoat/clearcoat process) that would require a

13

A more fundamental defect in the approach adopted

by the Fifth Circuit and advocated by petitioner is its

misconception of the nature of the courts’ role. Con-

gress provided for enforcement of the “applicable”

. SIP (42 U.S.C. 7413 (b) (2)), and made no excep-

tion for the situation in which a proposed revision has

been pending for more than four months. It is not

the province of the judiciary to carve out such an ex-

ception based on notions of “what accords with ‘com-

mon sense and the public weal.’” TVA v. Hill, 437

U.S. 153, 195 (1978). Cf. Z. I. du Pont de Nemours

& Co. v. Train, 430 U.S. 112, 138 (1977) (“The ques-

tion * * * is not what a court thinks is generally

appropriate to the regulatory process; it is what Con-

gress intended * * *.”). As this Court stated in Brock

v. Pierce County, 476 U.S. 253, 260 (1986) (footnote

omitted): When there are less drastic reme-

dies available for failure to meet a statutory deadline,

courts should not assume that Congress intended the

agency to lose its power to act.” Less drastic remedies

are available here (Pet. App. 14a-15a). Thus, even if

we assume that there is a four-month deadline, the

court below was correct in rejecting the American

Cyanamid Co. enforcement bar rule.*

further one and one-half-year extension of the SIP time

limits. Allowing petitioner to follow this course of conduct

without penalty would ignore the damage to the public inter-

est caused by the one and one-half-year delay in reaching the

stricter emission limits, and would give petitioner an eco-

nomic adva ‘age over companies that made the investments

necessary to meet applicable limits in a timely fashion.

* As the court of appeals noted (Pet. App. 16a n. 4), this

case arose under Section 113 of the Act, 42 U.S.C. 7413,

which explicitly directs the courts to consider a number of

equitable factors before assessing a penalty; American Cyana-

mid Co. and Duquesne Light Co., in contrast, arose under

14

8. Although the court of appeals’ decision rejected

the rationale of American Cyana”’id Co., and although

the issue is of considerable importance, two factors

counsel against review of the issue at this time. First,

the court of appeals’ decision is interlocutory. The

remand to the district court—and possible further re-

view by the court of appeals—may greatly clarify

both the interests at stake in this litigation and the

practical operation of the First Circuit’s newly an-

nounced standard. Review at this stage, before the

district court has had an opportunity to consider

petitioner’s claims regarding the “equities of this

case” (Pet. App. 17a), would thus be premature.

Second, Congress is currently considering major

amendments to the Clean Air Act. Several pending

proposals address problems caused by application of

a four-month limit to SIP revisions and adopt a time

period of either twelve months or nine months for

the review of SIP revisions.’ Similarly, several of the

Section 120, 42 U.S.C. 7420, which provides a procedure for

EPA to collect penalties for noncompliance, but does not

expressly authorize the consideration of equitable factors.

Thus it is possible that the apparent conflict between Ameri-

can Cyanamid Co. and the court of appeals in this case can

be reconciled by viewing the different conclusions as resting

on the different statutory provisions; neither court, however,

limited its analysis in such a fashion. The Sixth Circuit is

currently considering the enforcement bar issue in a proceed-

ing in which the agency proceeded both under Section 113

and Section 120. United States v. Alcan Products, Division

of Alcan Aluminum Corp., No. 88-6300 (argued Aug. 3,

1989) ; see note 2, supra.

5 Three bills would require EPA to act on a SIP revision

within twelve months of EPA’s certification that the pro-

posed revision meets certain minimum criteria. See H.R. 99,

15

bills introduced this session contain explicit confirma-

tion of EPA’s power to enforce the existing SIP until

the time when the proposed revision is actually ap-

proved.“ Such statutory revisions, if enacted, may

raise the question whether a previously granted

writ of certiorari should be dismissed. See Cook v.

Hudson, 429 U.S. 165, 165-66 (1976); Triangle Im-

provement Council v. Ritchie, 402 U.S. 497, 498-499

(1971) (Harlan, J., concurring) ; Rice v. Sioux City

Memorial Park Cemetery, Inc., 349 U.S. 70, 76-77

(1955). It is also possible that a grant of certiorari

at this time might affect congressional consideration

of the clarification proposals, and of the need for

them.“

101st Cong., Ist Sess. § 103 (1989): H.R. 3030, 101st Cong.,

Ist Sess. § 101 (a) (1) (adding § 110 (e) (2) to Clean Air Act)

(1989); S. 1490, 101st Cong., Ist Sess. 5 101 (a) (adding

§ 110(e) (2) to Clean Air Act) (1989). One bill would allow

EPA nine months to act on certain SIP revisions. H. R. 2323,

101st Cong., Ist Sess. § 401 (1989).

*S. 1630, 101st Cong., Ist Sess. § 104 (b) (1989) is typical.

It provides:

SAVINGS CLAUSES AND ENFORCEABILITY OF PLANS.

—Section 110(d) of the Clean Air Act is amended by

adding the following at the end thereof: Such term in-

eludes any portion of an implementation plan which has

been submitted by a State and approved by the Adminis-

trator. otwithstanding any other provision of this Act,

each provision of such implementation plan (and each

permit in effect under such plan) shall remain in effect,

and shall be enforced under this Act, until a revision of

such plan is approved by the Administrator or a plan is

promulgated by the Administrator under subsection (c).”

Similar provisions are contained in H.R. 99, supra, (§ 303 (f))

and in H.R. 2323, supra (§ 608(e)).

In addition, EPA has recently made a number of admin-

istrative changes in its SIP review process which should

16

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

MARTIN W. MATZEN

Davip C. SHILTON

Attorneys

NOVEMBER 1989

result in more expeditious decisions on SIP revision pro-

posals. 54 Fed. Reg.-2214 (1989). These developments are

likely to decrease, but probably will not eliminate, the number

of instances in which EPA can be claimed to have exceeded

a time limit. The changes include: review of proposed SIP

revisions for completeness against specific criteria, and re-

quiring prompt modification of incomplete submittals; delega-

tion of decision authority to Regional Administrators for SIP

actions that are not nationally significant; and providing for

“grandfather[ing]” of SIP revisions that were prepared in

good faith by a State but which may become deficient because

of a change in EPA policy subsequent to state adoption. Ibid.

„. 2. coveenment rewmrtine orrice; 1969 262203 see