# Amicus Curiae Brief — General Motors Corp. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0670%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 496 U.S. 530 ## Text 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