Amicus Curiae Brief — General Motors Corp. v. United States

IN THE ete ers

Supreme Court of the United States

OCTOBER TERM, 1989

GENERAL MoToRS CORPORATION,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF AMICUS CURIAE OF THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF AMERICA

IN SUPPORT OF THE PETITIONER

ROBIN S. CONRAD

Counsel of Record

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce of the

United States of America

Wiieon - Eras Printine Go., Inc. - 769-0086 - Wasnincron, D.C. 20001

I. Supreme Court Review Will Resolve This Con-

flict In The Circuits And Provide Certainty To

Companies Regulated Under The Clean Air Act..

Il. Supreme Court Review Will Answer Important

Recurring Questions Concerning State Plans

Under The Clean Air Act ...................................

10

Statutes

ii

TABLE OF AUTHORITIES

Cases Page

Alabama Power Co. Vv. Costle, 686 F.2d 323 (D.C.

SS ll

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

C—O OE _.[passim

Bethlehem Steel Corp. v. EPA, 782 F.2d 645 (7th

ES Ase 11

Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028

NG 11

Indiana & Michigan Elec. Co. v. EPA, 733 F.2d

GD Ge Ba Ce eeeeeeneeniettiin 1l

Sierra Club v. Indiana-Kentucky Elec. Corp., 716

QQ yx 12

Train vV. Natural Resources Defense Council, 421

US. 60 (1975) -............... stanesncempaemessmmuatabemmmens 4,11

42 U.S.C. § 7407(a) (1982) ineennisaneniiiiiininiiiaials = 3

42 U.S.C. § 7410(a) (2) (1982) EEE... 3,12

42 U.S.C. § 7401 (a) (3) (1982) EEE. 3,11

BB I

42 U.S.C. § 7410(d) (1962) —.................................. 12

42 U.S.C. § 7607(b) (1962) —................................... 3

42 U.S.C. § 7607(d) (1982)... 3

Adminitrative Actions

46 Fed. Reg. 61386 (1961) ..................._........... 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-369

GENERAL MOTORS CORPORATION,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF AMICUS CURIAE OF THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF AMERICA

IN SUPPORT OF THE PETITIONER

STATEMENT OF INTEREST

On behalf of its member companies, the Chamber of

Commerce of the United States (“the Chamber”) submits

this brief amicus curiae in support of General Motors Cor-

poration’s petition for a writ of certiorari in the above

ease.' The Chamber is the largest federation of business

organizations and individuals in the United States. Its

membership includes over 180,000 corporations, partner-

1 This brief is filed with the written consent of the parties, pur-

suant to Supreme Court Rule 36.1. Letters of consent are on file

with the Clerk of the Court.

ee a ee ee

ships and proprietorships, as well as several thousand

trade and professional associations, and state and local

chambers of commerce. The Chamber regularly repre-

sents the interests of its membership—which reflects

the diversity of American industry and includes com-

panies of all sizes and types—before this Court on im-

portant environmental issues of national concern to

business.”

The question before the Court in this case is whether

the United States may bring an enforcement action seek-

ing compliance with an outdated state Clean Air Act im-

plementation plan where EPA has failed to act to ap-

prove or disapprove a revised state plan within four

months as required by the Act. This case raises funda-

mental issues concerning the proper roles of the federal

government and the states in the establishing and im-

plementing State Implementation Plans (“SIP”) under

the Clean Air Act. The issues presented go to the heart

of the ability of states to make ongoing policy choices

as to air pollution control measures, and raises legal and

practical questions of vital interest to the Chamber and

its members.

The Chamber is committed to the goals of the Clean

Air Act and compliance with its requirements. The Cham-

ber does not believe, however, that Congress intended to

allow EPA to blatantly ignore the primary responsibility

of the states to assure the attainment of air quality goals.

The Chamber is concerned that the First Circuit’s deci-

sion is contrary to the intent of Congress and creates dis-

incentives for the fair administration of the Act.

2 See e.g., Gwaltney of Smithfield v. Chesapeake Bay Founda-

tion, 484 U.S. 49 (1987); Tull v. United States, 481 U.S. 412

(1987); Dow Chemical Company v. United States, 476 U.S. 227

(1986) ; Chemical Manufacturers Association v. Natural Resources

Defense Council, 470 U.S. 116 (1985).

3

STATEMENT OF THE CASE

A. The Central Role Of The States In Implementing

The Act.

The Clean Air Act, as adopted in 1970 and revised in

1977, creates an important federal-state partnership. In

the 1970 Act, Congress increased federal authority and

responsibility for achieving air quality goals. The states

were required to attain federally specified air quality

standards within particular periods of time. The statute

expressly preserves an important principle, however: —

“Each State shall have the primary responsibility for

assuring air quality within the entire geographic

area comprising such State. .. .” 42 US.C.

§ 7407 (a).

A central mechanism to implement the Clean Air Act

involves the formulation by each state of a plan for the

implementation, maintenance, and enforcement of the na-

tional air quality standards within each region in the

state.* Impiementation plans are adopted by the states

and submitted to EPA for review, and within four months

EPA must either approve or disapprove all or part of the

plan.* A plan validly adopted by a state and approved by

EPA is enforceable by both the federal government and

the state.

8 A state’s implementation plan (“SIP”) must include emission

limitations, schedules for compliance, and such other measures as

may be necessary to ensure attainment and maintenance of the

national standards. 42 U.S.C. § 7410(a) (2).

442 U.S.C. § 7410(a) (2), (3). If a state fails to submit a plan

within the time prescribed, or submits a plan that the Administra-

tor determines not to comply with the requirements of the Act, the

Administrator shall promulgate a plan for that state. 42 U.S.C.

§ 7410(c). Such an EPA promulgation is subject to notice and com-

ment requirements as well as judicial review, 42 U.S.C. §§ 7607(b)

and (d).

4

It is important to underscore that the Clean Air Act

gives EPA no authority to question the wisdom of a

state’s choices of emission limitations if the plan other-

wise satisfies the requirements of the Act. Thus, a state

is free to alter or fine tune its air quality program as

often as needed to accommodate changing economic, tech-

nological or air quality conditions.* As this Court em-

phasized in Train v. Natural Resources Defense Council,

421 U.S. 60, 79 (1975), “so long as the ultimate effect of

a State’s choice of emission limitations is compliance with

the national standards for ambient air, the State is at

liberty to adopt whatever mix of emission limitations it

deems best suited to its particular situation.”

B. The Decision Below.

The Commonwealth of Massachusetts adopted regula-

tions requiring the painting operations at General Motors’

automobile plant in Framingham to meet certain air

emission limits for volatile organic compounds (“VOCs”)

by December 31, 1985. In October 1981, the U.S. Environ-

mental Protection Agency (EPA) published a policy state-

ment supporting deferral of certain Clean Air Act com-

pliance dates for automobile painting to encourage devel-

opment of more cost-effective and environmentally bene-

ficial processes. 46 Fed. Reg. 51386 (1981). Pursuant to

this policy, the Commonwealth extended the applicable

deadline for automobile painting operations to August 31,

1987, and submitted the revised regulations for EPA ap-

proval in December 1985.

® States often revise their implementation plans in efforts to re-

solve source-specific compliance issues, especially where the enforce-

ment of an existing SIP may be highly disruptive to the local

economy or inappropriate to changed circumstances. These revi-

sions frequently contain innovative pollution control measures,

including the use of more cost-effective alternative technologies and

emission trading policies. They also may provide ways to bring

companies into compliance without shutting them down immedi-

ately. See American Cyanamid Co. v. EPA, 810 F.2d 493 (5th

Cir. 1987).

ve ee es es CULES eC L!mLCm eT = = ie 2 im sf —-- —- a

The purpose of the extension was to allow General

Motors to continue operating the old paint facility until

it could construct a $200 million new facility which, in

keeping with the deferral policy, uses advanced technol-

ogy and lower VOC content paint. In compliance with

the revised state regulations, General Motors permanently

shut down the old paint facility in July 1987, a full month

ahead of schedule.

Rather than promptly reviewing the revised SIP within

the four-month period required by law,° EPA chose to

bring an enforcement action seeking penalties and injunc-

tive relief for General Motors’ alleged noncompliance with

the 1985-deadline in the original regulations. Citing Amer-

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

the District Court granted summary judgment to Gen-

eral Motors, and held that EPA’s failure to take final

action on the revised regulations in a timely manner bars

EPA from obtaining the relief requested.

In American Cyanamid, the Fifth Circuit invalidated

a nearly identical enforcement action. There, the court

held that EPA may not commence an enforcement action

seeking penalties for alleged violations of outdated state

regulations where EPA had failed to take final action on

revised state regulations within four months. The court

reasoned that EPA’s disregard of “the important role

which the state plays in defining authorized emissions”

bars EPA from collecting a penalty in such circumstances.

810 F.2d at 500. The court found such a bar to be neces-

sary in order (1) to give effect to the states’ prerogatives

under the Act to decide what emission limits are appro-

priate, and (2) to avoid the bias that would inevitably be

® See n.4 above. EPA in fact did not take final action until the

day it filed its brief in the First Circuit. EPA took the position

that the 4-month rule did not apply to SIP revisions, a position

reiected by the First Circuit as well as the majority of courts

which have considered the issue. See Slip Op., General Motors

petition, Appx. 9a-12a.

—_— —_— s — ——— i ci P —— i oe OO OE Veen Eee llr! eS —_- _ —_— ———E—— _ —— ———————— “a

;

introduced into EPA’s SIP review process should the

Agency be permitted to bring enforcement actions before

deciding whether to approve a SIP revision which would

moot the enforcement issues.

In this case, however, the First Circuit reversed the

district court and held that EPA may bring an enforce-

ment action against General Motors despite the Agency’s

failure to act on a SIP within four months as required

by statute. The court acknowledged that “Congress clearly

was concerned with preserving the states’ ability to tailor

SIPs to local needs and conditions” and that Congress

did not intend “the states’ legitimate policy choices to be

held hostage to the EPA’s schedule.”” The court below

expressly disagreed with the Fifth Circuit’s approach in

the American Cyanamid case, however. The court spec-

ulated that EPA will frequently fail to act within four

months without citing any factual support for this prop-

osition, and concluded that the American Cyanamid en-

forcement bar was “too drastic” a remedy.* Instead, the

First Circuit ruled that the enforcement action could be

brought, and that General Motors’ only remedy for EPA’s

delay is to urge the trial court to exercise its discretion

to reduce the amount of the penalties based on the rea-

sonableness of EPA’s delay and the prejudice suffered

by the company as a result.’

The decision below leaves EPA free to ignore state

SIP revisions and to enforce original SIP provisions which

no longer reflect state policy choices as to how best to

achieve air quality goals. The decision creates no incen-

tives for EPA to act in a timely manner, and will frus-

trate the ability of states and companies to adopt and

implement SIP provisions reflecting changing needs and

conditions.

7 Slip Op., General Motors petition, Appx. 1la-12a.

* Id. at 14a.

* Id. at 15a.

7

REASONS FOR GRANTING THE PETITION

I. Supreme Court Review Will Resolve This Conflict In

The Circuits And Provide Certainty To Companies

Regulated Under The Clean Air Act.

The issue presented in this case is whether EPA may

bring a suit to enforce existing state implementation

plan (SIP) regulations when the state has revised its

plan and EPA has taken no action to review the plan for

almost two years, well outside the four-month period in

the statute. The correct reading of the Clean Air Act,

adopted by the district court in this case” and the Fifth

Circuit in the American Cyanamid decision is that EPA

may not prosecute a suit for penalties under such cir-

cumstances.

The Fifth Circuit addressed the proper remedy for

EPA’s violation of the four-month rule in detail in Amer-

ican Cyanamid. In that case, EPA failed to take action

on a SIP revision submitted by the State of- Louisiana

concerning the manner in which a company could demon-

strate compliance with certain emission limitations. In-

stead, EPA filed an enforcement action more than four

months after the SIP revision was proposed for noncom-

plianece with the old SIP requirements.

Stressing the importance of avoiding a situation in

which “EPA loses nothing by its contumaciousness,” 810

F.2d at 499, and emphasizing the need to give EPA an

incentive to respect the four-month rule, the Fifth Cir-

cuit held that “EPA may not collect a penalty for the

period between (1) four months after a state submits a

proposed revision, and (2) the date the EPA finally re-

jects that revision.” "' 810 F.2d at 500. Since the Notice

10 General Motors petition, Suppl. Appx.

1! The court pointed out that if the SIP revision were ultimately

rejected, “American Cyanamid will not benefit ‘undeservedly,’”

any violation of the old SIP <nat occurred before EPA

completed its review of the revision—whether or not

EPA ultimately rejected the revision.”

The court in American Cyanamid also pointed out that

EPA’s practice of bringing enforcement actions before

acting on SIP revisions “may encourage the EPA to re-

ject [SIP] revisions that it should accept.” Jd. at 499.

After EPA brings such an enforcement action, it is dif-

ficult to see how EPA could act in a disinterested way to

approve a SIP revision and thereby rule that the com-

pany involved is not subject to enforcement after all. As

the Fifth Circuit held, such a situation contains a built in

conflict which threatens to undermine “EPA’s even-

handed administration of the Act.” /d.

The equitable and policy implications of the First Cir-

cuit’s decision should also be noted. There was no signi-

ficant detriment to the environment involved in this sit-

uation—indeed, the long-term emissions from the Fram-

ingham plant were actually reduced through the con-

since the state had undertaken to authorize its method of compli-

ance and “{i)f the EPA collects less than it could collect retro

actively . . . it is because of its own failure to act within the time

limits set by the Act.” /d. at 501.

2 The Fifth Circuit also rejected the position adopted by the

First Circuit in this case (General Motors petition, Appx. 14a)

that a remedy for addressing EPA's failure to complete its review

in four months is a suit in the district court to require EPA to

act:

“The EPA must review a revision within four months whether

or not the state or some other party sues to hasten its decision.

A suit to force the agency to act is one remedy, but should not

be the only remedy for delay, once the interests of the states

themselves are recognized.” (810 F.2d at 501 n11).

struction of a new paint facility that has lower emissions

than the old one would have had even with planned cun-

trols.“ That the emissions authorized in the short term

under the SIP revision did not present a serious environ-

mental problem is demonstrated by EPA’s own actions:

the state of its own right to explore regulatory alterna-

i to a form of its SIP that could meet

nationa! standards in a manner the state deemed to be

most consistent with its interests and with the interest of

its citizens. Such a result, if permitted to continue, would

“It was, presumably, this consideration that led the Common-

wealth to promulgate the SIP revision in the first place. See p. 4,

“If EPA is as concerned as it claims to be about limited re-

sources and the appropriate ordering of priorities, it is difficult to

understand why EPA cannot allocate the resources to review SIP

revisions in a timely manner but can find the resources that bring

enforcement actions against permanently closed facilities that may

never have been out of compliance at all.

—————

10

be both inequitable and directly contrary to the policy of

the Clean Air Act.

Il. Supreme Court Review Will Answer Important Re

curring Questions Concerning State Plans Under The

Clean Air Act.

In construing the Clean Air Act, federal and state ju-

dicial review and enforcement cannot be regarded as in-

dependent and unrelated instruments of justice. The

First Cireuit’s decision fails to appreciate the fundamental

need to assure that the objectives of the Clean Air Act

will be attained through coordinated federal and state

actions, and in a manner consistent with the primary role

of the states.

It must be emphasized that SIPs implementing the

Clean Air Act are not static. State agencies must revise

their program periodically to accommodate a variety of

circumstances, including new air quality data, changing

economic and technological conditions, and revised state

policies and programs. State SIP revisions, such as the

revision involving General Motors in Massachusetts, can

address specific air control issues in an innovative way

resulting in increased air pollution control.

Congress anticipated that the states would be revising

their SIPs periodically. Section 110/a)(3) of the Act

18 As emphasized in the American Cyanamid decision:

“It distorts the statutory scheme to place virtually full em-

phasis upon the business entity involved as a charged ‘polluter.’

The emphasis of the statute, rather, is upon the important

role which the state plays in defining authorized emissions. .. .

The issue then is not so much pollution by American Cyanamid

but the default of the EPA in carrying out the congressional

intent to work in close cooperation with the states in imple-

menting standards and enforcing the Clean Air Act.” /d. at

500.

Delay on the part of EPA should not hamper the state's right and

duty to regulate and protect its own citizens as it sees fit.

11

allows the states to adopt plan revisions, and provides

that EPA may review such revisions on the same basis

as the initial state plans. 42 U.S.C. § 7410(a)(3). This

Court specifically underscored the importance of the sec-

tion 110(a) (3) authority of states to revise SIPs to effec-

tuate their ongoing policy choices:

“(T]he revision section is to all appearances the

mechanism by which the States may obtain approval

of their developing policy choices as to the most prac-

ticable and desirable methods of restricting total

emissions to a level which is consistent with the na-

tional ambient air standards.” (Train v. NRDC,

supra, 421 U.S. at 80).

Under EPA’s theory, the government can simply ig-

nore a state’s policy choices and statutory authority to

select whatever mix of emission limits will achieve the

national standards. The EPA believes that it can ignore

a SIP revision indefinitely, if it chooses to, and bring a

suit to enforce the origina] state plan. Instead of defer-

ring to states’ choices of control strategies, the Agency

exercises the equivalent of a “pocket veto” over state

implementation decisions, a result clearly not contemplated

by the statute. See, Bethlehem Steel Corp. v. EPA, 782

F.2d 645, 650 (7th Cir. 1969)."*

Conflicting federal and state requirements will neces-

sarily result from prolonged EPA inaction. State plan

1® Courts have previously rejected similar exercises of unilateral

federal regulations through failure to take timely action. See, ¢.g.,

Indiana & Michigan Electric Co. v. EPA, 733 F.2d 489, 492 (7th

Cir. 1984) (EPA may not delay action on a key provision of a plan

if such delay has the effect of disapproving an integral part of

the plan without determining that the part violates the require-

ments of the Act); Bethlehem Steel Corp. v. Gorsuch, 724 F.2d

1028, 1086 (7th Cir. 1984) (while EPA may approve a regulation

in part and disapprove it in part, it may not, under the guise of

partial approval, change the substance of the regulation) ; Alabama

Power Co. v. Costle, 636 F.2d 323, 364 (D.C. Cir. 1979) (EPA may

not dictate to a state how it will manage internal growth by use of

available increments).

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™ See 42 U.S.C. § 7410(d).

% See Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d

1145, 1151 (7th Cir. 1983).