# Petitioners Brief — General Motors Corp. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0670%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1990 - **Citation:** 496 U.S. 530 ## Text IN THE Supreme Court of the United S OCTOBER TERM, 1989 GENERAL Motors CORPORATION, Petitioner, v. UNITED STATES OF AMERICA, Respondent. i ee ei ee, ae tt ea — — On Writ Of Certiorari To The United States Court Of Appeals For The First Circuit BRIEF OF PETITIONER GENERAL MOTORS CORPORATION r Le in, oti te of THEODORE L. GARRETT Counsel of Record Sonya D. WINNER CovINGTON & BURLING 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, D.C. 20044 (202) 662-5398 Of Counsel: Counsel for Petitioner Harry J. PEARCE General Counsel JAMES C. CUBBIN PATRICK J. MCCARROLL General Motors Corporation New Center One Building 3031 West Grand Boulevard Detroit, Michigan 48232 (313) 974-1686 January 1990 | | | 4 5 f } | —— neeeeneeceaeeeneeeeeeeneeeeeeneeemeeieeeeeeieeeieaneenieeseeenemenensenensiemenemieeneien=oeaneeeeneenee end PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 QUESTIONS PRESENTED In 1985 the Commonwealth of Massachusetts re- vised its Clean Air Act implementation plan to pro- vide an extension of time to 1987 for General Motors to comply with certain air regulations. The revision was adopted pursuant to the Clean Air Act and pub- lished EPA policy. The extension of time allowed GM time to build a new $200 million facility that achieved lower emissions than were otherwise required. EPA failed to approve or disapprove the Commonwealth's revision, and instead filed suit against GM seeking penalties for failure to meet the original deadline. The questions presented are: 1. Where EPA has failed to act on a revision to a state plan within four months, as required by the Clean Air Act, may the government bring an action for civil penalties against a company that is in com- pliance with the revised plan? 2. Whether the decision below undermines the pri- mary role of the states under the Act and interferes with the ability of states to make ongoing policy choices as to air pollution control measures? 3. Whether the decision below will create disincen- tives for even-handed administration of the Act and will unnecessarily enmesh the courts in litigation con- cerning the reasonableness of EPA’s delay in ap- proving state plans? The names of all parties are set forth in the caption of this case. The appendix to the petition for certiorari (pp. 19a-21la) lists all parent companies, subsidiaries and affiliates as required by Rule 29.1. (DHMS Industries, Ltd. (Korea), listed at page 20a of that appendix, no longer exists.) TABLE OF CONTENTS nnr x STATEMENT OF THE CCH ———ᷓ—4ↄ— A. Statutory Background .........................0+ B. The Massachusetts SIP ......................00+ OO ee OM ee ꝓ— ——— I. THE REQUIREMENT THAT EPA ACT UPON SIP REVISIONS WITHIN FOUR MONTHS IS AN INTEGRAL PART OF THE STATUTORY SCHEME DESIGNED TO PRESERVE THE PRIMARY ROLE OF THE STATES .............. A. The Statute uires EPA To Act Upon SIP Revisions Within Four Months B. The Four-Month Rule Serves As An Im- portant Check On EPA Efforts To Run State Programs And Acts To Preserve The Primary Role Of The States C. EPA’s Pocket Veto“ Of A SIP Revision Frustrates The Statutory Scheme .......... — — 1K 1 t — — 2 — — W © 12 13 17 — — eS iii II. EPA’S FAILURE TO TAKE PROMPT ACTION III. UPON A SIP REVISION BARS AGENCY EN- FORCEMENT OF INCONSISTENT PROVI- SIONS OF THE PRE-EXISTING SIP ............ A. Federal Enforcement Of SIP Require- ments That A State Has Sought To Change Is Inconsistent With The Primary — Of The States Envisioned In The 11 ——————————————— B. The Remedy Fashioned By The Fifth Cir- cuit In American Cyanamid Is An A Es riate, Non-Intrusive Response To PA’s Failure To Comply With A Man- datory Statutory Requirement ................ C. The Fifth Circuit’s 1 — Properly Implements Congress’s View of the Rea- sonable’ Time for EPA Review ............ ALTERNATIVE REMEDIES SUGGESTED BY EPA AND BY THE COURT BELOW ARE IN- ADEQUATE, INTRUSIVE, AND CUMBER- 133 — — A. Alternative Remedies Are Insufficient to Give Full Effect To The Primary Role Of The States Under The Aett . B. EPA’s Failure To Take Prompt Action On SIP Revisions Subjects Industry To Conflicting Federal And State Regulatory irements And Provides A Serious Disincentive To The Adoption Of Inno- vative Pollution Control Strategies ........ C. A Bar On Enforcement Actions That Are Inconsistent With Pending SIP Revisions Upon Which EPA Has Failed To Act ithin Four Months Is Nece To Pre- serve The Integrity of EPA’s SIP Review c 20 20 24 27 31 31 34 37 iv D. The American Cyanamid Remedy, Unlike Other Proposed Remedies, Does Not Re- = Extensive And Continuing Judicial nvolvement In EPA’s Allocation Of k 40 6 ———— —— ů ů — ů ——̃ —-—-— 45 Appendix: Statutory Provisions Involved TABLE OF AUTHORITIES Page CASES Alabama Power Co. v. Costle, 636 F.2d 323 (D.C. 0/0 ̃ d!——— 44 American Cyanamid Co. v. EPA, 810 F.2d 943 GEE TE EIEN ‘Gaciberdecctcmsicnaseceasadauneubiniee 20-22, passim Bethlehem Steel Corp. v. EPA, 782 F.2d 645 (7th GA I taetsctnevesesscancinmivcsnmiiunnscatatemenmiiinnine 18 Bethlehem Steel Corp. v. Gorsuch, 742 F.2d In 10,17,19,20 Brock v. Pierce County, 476 U.S. 253 (1986) ........ 26 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) . 21 Concerned Citizens of Bridesburg v. EPA, 836 F. 2d . 17 Council of Commuter Organizations v, Gorsuch, 683 eg ff: er eee 14 Council of Commuter Organizations v. Thomas, 799 Le 14 Duquesne Light Co. v. EPA, 698 F.2d 456 (D.C. P 14,32 Florida Power & Light Co. v. Costle, 650 F.2d 579 „„ 17 General Motors Corp. v. EPA, 871 F.2d 495 0 22,35, 37,39 Indiana & Michigan Electric Co. v. EPA, 733 F.2d Kü A 18.19 Mision Industrial, Inc. v. EPA, 547 F. 2d 123 (Ist —.— 11 17 Natural Resources Defense Council v. Thomas, 705 F. Supp. 1 D. D. C. 1988) 41,43, 44 NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1974) 44 Table of Authorities Continued Page Sierra Club v. EPA, 719 F.2d 436 (D.C. Cir. 1983), cert. denied, 468 U.S. 1204 (1984) . .. 14 Sierra Club v. Gorsuch, 551 F. Supp. 785 (N.D. Ce REED eececdennpndicsigemisisitiatinessenintintatmnernreee 44 Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145 (7th Cir. 1983) 17,35 Sierra Club v. Ruckelshaus, 602 F. Supp. 892 (N.D. ee Ḱ—„⁊¶!.. 8 43 State of Michigan v. Thomas, 805 F.2d 176 (6th 1 19 Train v. Natural Resources Deſense Council, 421 U.S. 60 (1975) .. 4,14,15,16,17,18,26,42 Union Electric Co. v. EPA, 427 U.S. 11 P 16,17,19,34,42 United States v. Alcan Foil Products, 889 F.2d 1513 (6th Cir. 1989) . . 14,20,28,42 United States v. General Motors, 876 F.2d eee 9-10, passim United States v. National Steel Corp., 767 F.2d 1176 I I otis ees tcmnedemnpnenianeties 14 STATUTES Z CIID cccccoccccssecnccecocecccsescensvesss 1 r ...... 16 e ee 2.3 eee 3 e passim r 13-14, passim ee 13-14, passim eee eee eee 18 e 13,27,28 D 5 . 0 1 vii Table of Authorities Continued Page 42 U.S.C. § 7502(aX2) (1982) . . . . . . . . . . . 4 42 U.S.C. § 7603(a) (1982) .. .. . . 25 42 U.S.C. § 7604(aX2) (1982) . . 10,41,42,43 42 U.S.C. § 7607(bM1) (1982) . .. .. 41 LEGISLATIVE MATERIALS U.S. Senate Committee on Public Works, A Leg- islative History of the Clean Air Act Amend- ments Of 1970 9 ů ů— 15,16 H. R. — 5 No. 95-294, 95th Cong., Ist Sess. 1 ͤÄ—ͤ—ç—E½ . ————— 16 S. Rep. No. 95-127, 95th Cong., 1st Sess. (1977) 16 MISCELLANEOUS . 6 I . — 5.6.24 EPA, Report of Audit: Review of EPA “VS Process for A en ye State Implementation Plans and Revisions, E1K6*8-11-0045-9100210 (March 1989) (copy lodged with the Clerk of ccc —j—————ĩ 25. 29,30 EPA, State Implementation Plan Processing Reform, 54 Fed. Reg. 2214 (1989) .......... 29,30,31,34 46 Fed. Reg. 51386 (1981) . . . .. 5,6 50 Fed. Reg. 18693 (1985) . . .. . .. 6 50 Fed. Reg. 20602 (1985) ...... . . . . 7 51 Fed. Reg. 3476 (1986) .. . . . . 7 51 Fed. Reg. 43394 (1986) ...... ..... . . . . . 7,38 53 Fed. Reg. 36011 (1988) . . . . . .. 9 54 Fed. Reg. 19173 (1989) .. .. 33 ö “ 12 IN THE Supreme Court of the United States OCTOBER TERM, 1989 No. 89-369 GENERAL Motors CORPORATION, Petitioner, V. UNITED STATES OF AMERICA, Respondent. On Writ Of Certiorari To The United States Court Of Appeals For The First Circuit BRIEF OF PETITIONER GENERAL MOTORS CORPORATION OPINIONS BELOW The opinion of the Court of Appeals was rendered on June 7, 1989. It is reported at 876 F.2d 1060 and is reprinted in the Appendix to the Petition for Certiorari. The opinion of the District Court, which was rendered on May 16, 1988, is unpublished and appears at pp. 119- 25 of the Joint Appendix. JURISDICTION This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1) (1982). The petition for certiorari was timely filed on September 5, 1989, and the Court granted the petition on December 4, 1989. STATUTORY PROVISIONS INVOLVED The Clean Air Act provides that the states are to be accorded primary responsibility for assuring air quality within their boundaries. 42 U.S.C. § 7407(a) (1982). This responsibility is fulfilled primarily through the promulga- tion of Implementation Plans by the States, with general oversight by the federal Environmental Protection Agency (“EPA”). 42 U.S.C. § 7410 (1982). The statute requires EPA to act to approve or disapprove State Implementation Plans (“SIPs’’) and revisions to SIPs within four months. 42 U.S.C. § 7410(aX2), (3) (1982). The pertinent provisions of the statute are reprinted in Appendix A to this brief. STATEMENT OF THE CASE This case concerns the appropriate division of authority between the federal government and the states in the es- tablishment of State Implementation Plans under the Clean Air Act. Relying on an EPA policy published in 1981, the Commonwealth of Massachusetts revised its SIP regula- tions to grant General Motors a 20-month extension of time to comply with certain air emission limits. The pur- pose of the SIP revision was to allow General Motes time to construct a new automobile painting facility using a more advanced, lower-emitting painting system than the facility it replaced. EPA failed to approve or disapprove the SIP revision. The new facility was constructed and the extension expired. EPA then filed suit in August 1987 seeking penalties to enforce the 1985 deadline in the orig- inal SIP. Under the Clean Air Act, the states have primary re- sponsibility for developing plans to implement the Act. The statute grants EPA limited authority to approve or dis- approve such plans or revised plans within four months. Citing the Fifth Circuit’s decision in American Cyanamid Co. v. EPA, 810 F.2d 493 (5th Cir. 1987), General Motors argued that EPA's failure to meet the four-month deadline in this case barred any enforcement action against General Motors unless and unt EPA completes its review and in fact disapproves the revision. The district court agreed and entered summary judgment for General Motors. The United States Court of Appeals for the First Circuit reversed, expressly declining to follow the rule established in Amer- ican Cyanamid. A. Statutory Background The Clean Air Act of 1970 established a federal-state partnership for the control of air pollution. The statute creates a logical and straightforward division of authority. The federal government, through the EPA, establishes the national air quality goals for various pollutants, such as ozone, called National Ambient Air Quality Standards (“NAAQS”). 42 U.S.C. § 7409. However, when it comes to determining the source-specific emission limits to achieve the national standards, each state has the primary re- sponsibility for assuring air quality” within its borders. 42 U.S.C. § 7407(a). Under the Act, each state is required, after notice and public hearings, to adopt a State Imple- mentation Plan (‘‘SIP’’) consisting of regulations providing for the attainment, implementation, and enforcement of the national standards for sources within the state. 42 U.S.C. § 7410. Each state must submit its SIP to EPA for review and approval. 42 U.S.C. § 7410(aX1). However, Congress be- lieved it important that the states retain wide latitude in determining how national standards should be achieved, given local needs and conditions. Accordingly, EPA was prohibited from rejecting a state SIP if it was designed to achieve and maintain the national standards. 42 U.S.C. § 7410(aX2). This Court has emphasized that the State is at liberty to adopt whatever mix of emission limitations — it deems best suited to its particular situation“ as long as the net result is compliance with the national standards. Train v. Natural Resources Defense Counsel, 421 U.S. 60, 79 (1975). The Act contains various deadlines, including those for EPA action on SIPs.' Under 42 U.S.C. § 7410(aX2), EPA is required to approve or disapprove a SIP within four months of its submission. This requirement for prompt review by EPA serves to ensure rapid implementation of the state programs, and to minimize the time during which there may be differences between state and federal air programs. A federally approved SIP is enforceable by both the state and the federal government.’ The statute allows a state to revise its SIP at any time it deems appropriate. 42 U.S.C. § 7410(aX3). Congress an- ticipated that the design and administration of SIPs would be an ongoing process to take into account new air quality data, technological and economic considerations, and evolv- ing policies. EPA’s review of a SIP revision is governed by the same substantive and procedural requirements ap- plicable to original SIPs, including the duty to act on SIP revisions within four months. Jd. As noted above, the four- month deadline requires EPA to render a prompt decision, so that the state may, if necessary, make appropriate ad- justments in its plan and proceed to administer and enforce it with minimal disruption and confusion. B. The Massachusetts SIP General Motors owns and operates an automobile as- sembly plant in Framingham, Massachusetts. The plant The Act contains deadlines for states to promulgate certain aspects of their plans. 42 U.S.C. § 7410(aX1). The Act also contains deadlines for the attainment of air quality standards. For ozone the deadline is December 31, 1987. 42 U.S.C. § 7502(a\2). * The state can enforce it as a part of its legislative and regulatory process. EPA's enforcement authority derives from the Clean Air Act, which authorizes federal enforcement in cases where an applicable EPA approved SIP is violated. 42 U.S.C § 7413(a\1). contains a paint shop that is a source of volatile organic compounds (““VOCs’’), which contribute to ozone. In 1979, the Commonwealth of Massachusetts promulgated SIP reg- ulations establishing limits on emissions of VOCs. 310 CMR 7.18(7), J.A. 27. These regulations applied to automobile painting operations at GM’s Framingham plant, the only automobile plant in the Commonwealth. As originally pro- mulgated, the regulations required full compliance with the emission limits by December 31, 1985—two years before the Clean Air Act’s final 1987 compliance deadline for ozone. 42 U.S.C. § 7502(aX2). These SIP regulations were approved by EPA in 1980. On October 2, 1981, shortly after the Massachusetts SIP requirements were approved, EPA published a policy state- ment advocating delay of the compliance dates for auto- mobile painting operations up to the 1987 statutory deadline. 46 Fed. Reg. 51386 (1981), J.A. 30. Deferral of deadlines in existing SIPs was suggested by EPA as part of its effort to reduce the regulatory burden on the motor vehicle industry.” Jd. The policy noted that deadline de- ferrals would allow the industry time to develop and im- plement more cost-effective technology, including new painting methods and control technology, and would allow a more orderly compliance effort nationally. Jd. EPA stated that it will approve’’ state SIP revisions submitted, con- sistent with the policy, which postpone final compliance with the automobile painting limits up until 1987. Id., J.A. 33-34. In order to allow the industry to concentrate on the development of cost-effective final control tech- niques, EPA recommended that states not impose interim emission limits, but simply grant an extension of time to meet final limits. Jd. at 51387, J.A. 35. Pursuant to this policy statement, General Motors in 1984 submitted a request to the Commonwealth of Mas- sachusetts for extension of the deadline in 310 CMR 7.18(7) to December 31, 1987, for the automobile coating opera- tions at the Framingham plant. This request was based on the proposed installation of abatement controls at Gen- eral Motors’ then-existing lacquer painting facilities at the plant. J. A. 38.“ In mid-1985, General Motors revised its request to reflect a decision to adopt a more substantial long-term air pollution control strategy at the Framingham facility. General Motors decided to close the lacquer facility and build, at a cost of over $200 million, a technologically innovative basecoat/clearcoat enamel paint system.‘ This new system, although much more costly to install, had the advantages of lowering emissions substantially below the level required by 310 CMR 7.18(7), and of improving the efficiency and competitiveness of the Framingham plant. On June 7, 1985, General Motors informed the Common- wealth of its revised plans and reiterated its request for an extension of the SIP compliance deadline. J.A. 41. The Commonwealth provided public notice and held a hearing on the proposed SIP revision, which was attended by EPA representatives. J.A.61. Following the public hearing, the Commonwealth revised its SIP to extend the automobile compliance deadline for 20 months to August 31, 1987, several months short of the final Clean Air Act deadline and GM’s requested extension. The revised SIP was submitted by the Commonwealth to EPA for approval on December 30, 1985. J.A. 50. There was good reason to believe that the Commonwealth's SIP revision was ap- provable, based on EPA’s 1981 policy and Agency actions to implement that policy. * The cost of this conventional control option was estimated by GM to be under $20 million. This basecoat/clearcoat system was cited with approval in EPA's 1981 policy. 46 Fed. Reg. 51386 (1981), J.A. 30. EPA orders issued to several automobile companies under §111(j) of the Act, 42 U.S.C. 974110), also recognized this system as innovative technology. See 40 C. F. R. § 60.398. * Earlier that year, EPA proposed to approve a request for a similar extension of the compliance deadline for a GM plant in Delaware, 50 During the ensuing two years and nine months, EPA took no final action to approve or disapprove the proposed revision.“ In reliance on the SIP revision and EPA’s policy of deferral, General Motors proceeded with its state-ap- proved compliance strategy and spent over $200 million to construct a new, lower-emitting paint facility using the basecoat/clearcoat technology. The old Framingham paint facility was closed on schedule,’ and there is no dispute that General Motors was—and remains—in full compliance with the revised SIP requirements. C. Proceedings Below The Complaint in this action was filed on August 17, 1987, nearly twenty months after the proposed SIP re- vision was submitted to EPA, and more than a month after the old Framingham paint facility was permanently Fed. Reg. 18693 (1985), and EPA approved a similar deferral for a Ford plant in Virginia. 50 Fed. Reg. 20602 (1985). In the following year, EPA reaffirmed the continuing effectiveness of the 1981 policy. 51 Fed. Reg. 3476 (1986). purpose of the revision was to defer the deadline, which would render inappropriate any “‘enforcement’’ of the pre-existing monwealth of Massachusetts and General Motors both filed comments opposition to the proposed disapproval. Eight months passed before EPA brought this suit—still without taking final action on the revision. iy line. JA 23 shut down.“ The Complaint sought civil penalties for vio- lation of the 1985 deadline in the original SIP. The com- plaint also requested injunctive relief.“ The Complaint made no mention of the Commonwealth’s revision of that SIP deadline; nor did it mention that, despite the passage of nearly two years, EPA had still not taken final action on that revision. On September 18, 1987, General Motors moved for sum- mary judgment. J.A. 14. Relying principally upon the Fifth Circuit’s holding in American Cyanamid Co. v. United States, supra, General Motors asserted that EPA's failure to act upon the proposed SIP revision within the four- month statutory period barred it from bringing an en- forcement action inconsistent with that revision. On May 16, 1988, the District Court granted summary judgment to General Motors. The District Court found that condi- tioning enforcement upon EPA’s compliance with the four- month deadline was appropriate on several grounds, in- cluding the fact that EPA had not taken final action: “First, the EPA always holds the ultimate trump card: it may at any time during or after the allowed four month period reject the proposal and invoke enforce- ment proceedings under the original SIP. Second, it strains credulity that truly important or controversial SIP revisions cannot be effectively identified early on in the process and scheduled for expedited review. . . . Third, a period any greater than four months would On August 14, 1986, prior to taking action on the proposed SIP revision, EPA issued a Notice of Violation (a statutory prerequisite to the initiation of an enforcement action) for violation of the original 1985 deadline. * EPA later withdrew its request for injunctive relief and does not dispute that the painting facility at issue has been permanently closed. See First Amended Complaint, J. A. 112. Accordingly, the relief that EPA currently seeks in this case is past penalties for alleged violations of the old SIP requirements for the period before the facility was closed. ————y — — leave both the states and the affected industries in an unjustifiable state of limbo. For an indefinite pe- riod, the state would be unable to act to balance dic- tated national priorities with the interests of its citizens and industries as the Clean Air Act intended. And the industries themselves, though fully in com- pliance with state law, would in some instances face the Scylla and Charybdis choice between ceasing op- erations now, or possibly being forced out of business by heavy fines later. Slip op. at 7, J.A. 124. EPA appealed the district court’s decision. On Septem- ber 16, 1988, the very day that EPA filed its brief in the Court of Appeals, it published a final notice disapproving the SIP revision. 53 Fed. Reg. 36011 (1988). At that point, of course, the SIP revision had become moot for all prac- tical purposes except EPA’s enforcement action.“ On June 7, 1989, the First Circuit reversed the district court’s de- cision and remanded for further proceedings. The F rst Circuit agreed with the district court that the Clean Air Act imposes a four-month deadline on EPA review of SIP revisions. 876 F.2d at 1066. The court noted that it is unlikely that Congress intended for the states’ legitimate policy choices to be held hostage to EPA’s schedule, and that the American Cyanamid rule provides EPA with the greatest incentive to complete its review within four months. Jd. at 1066-1067. The First Circuit nonetheless held that that EPA may bring an enforcement General Motors has filed a request for reconsideration with EPA, pointing out technical and legal deficiencies and irregularities in the disapproval decision. General Motors also filed a petition for review of the decision in the Court of Appeals. General Motors v. United States, No. 88-2123 (Ist Cir). That appeal has been stayed by the First Circuit pending EPA action on the request for reconsideration—and, of course, the final decision in this case, either of which, if decided in General Motors’ favor, would render the appeal moot. 10 action. It concluded, without citing any factual support, that EPA would frequently miss the deadline even with the incentive of an enforcement bar, and held that an enforcement bar was too drastic.“ Jd. at 1067." The First Circuit suggested a different, two- fold“ rem- edy for EPA’s failure to observe the four-month deadline. First, the affected source may file suit in federal district court under 42 U.S.C. § 7604(aX2) to compel EPA to act on the SIP revision. Jd. Second, when EPA brings an enforcement action, the district court may consider, in as- sessing penalties, the reasonableness of the Agency’s delay and the resulting prejudice, if any, suffered by the com- pany. Id. at 1068. The Court expressed the hope that these remedies would “induce prompt EPA action and thus en- sure that the interests of the states need not yield too far.’’ Id. For the reasons set forth below, the First Cir- cuit’s approach is inconsistent with the primary role of the states in establishing SIPs under the Act, will not sufficiently induce EPA to meet the four-month deadline, and is more intrusive on EPA and the courts than the enforcement bar adopted in American Cyanamid. SUMMARY OF ARGUMENT In enacting the Clean Air Act, Congress created an “experiment in federalism’ that was designed to achieve national standards through state regulation. Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036 (7th Cir. 1984). Under the Act, EPA’s role is significant but limited. The Agency promulgates the national standards and supervises state achievement of those standards, but the development and enforcement of specific emission limitations to achieve those standards is left primarily to the discretion of the states. The First Circuit indicated that it would be receptive to the Amer- ican Cyanamid remedy if it were certain that EPA could review SIP revisions within four months. 876 F.2d at 1067. ee —ů—— —ñ ͤ—u—ͤ———: 11 The statute contains a series of very specific substantive and procedural requirements that are designed to create and maintain the proper balance of state and federal au- thority in the “partnership” between EPA and the states. Among these requirements is a requirement that revisions to SIPs promulgated by the states be acted on by EPA within four months. EPA has regularly, as a matter of policy as well as practice, failed to comply with this re- quirement.’ Instead, the Agency has claimed the right to ignore state-promulgated SIP revisions for extended pe- riods of time and to proceed with enforcement actions against companies who have acted in good-faith compliance with the revised SIP. This policy and practice on the part of EPA seriously upsets the careful balance of state and federal authority created under the Act. The rule adopted by the Fifth Cir- cuit in American Cyanamid Co. v. EPA is a reasonable, limited, and relatively nonintrusive remedy for EPA’s fail- ure to act promptly on SIP revisions. The Fifth Circuit’s approach gives EPA a choice between completing its re- view of a SIP revision within four months, as the statute requires, or foregoing, during the pendency of EPA delay, any enforcement action that would be inconsistent with that revision. This is the only remedy that maintains the balance of authority between the states and the federal government as intended by Congress. Alternative remedies, including those suggested by the First Circuit in this case and by the government, are not effective to redress the imbalance of state and federal authority that EPA creates by not acting promptly upon SIP revisions. Since these remedies leave EPA free to ignore pending SIP revisions in pursuing its enforcement strategy, they create little incentive for the Agency to act on revisions promptly. The alternative remedies also fail See pages 28-31 below. 12 to take into account the extent to which EPA’s insistence on enforcement, where it has failed to act on a pending SIP revision, threatens to undermine the integrity of the SIP review process itself by commingling EPA’s enforce- ment and SIP review functions. Moreover, these remedies would inevitably involve the courts in a constant stream of burdensome and unnecessary litigation over the man- agement of EPA’s SIP review program and the reason- ableness’’ of the delays experienced in particular cases. ARGUMENT I. THE REQUIREMENT THAT EPA ACT UPON SIP RE- VISIONS WITHIN FOUR MONTHS IS AN INTEGRAL PART OF THE STATUTORY SCHEME DESIGNED TO PRESERVE THE PRIMARY ROLE OF THE STATES. The First Circuit held that EPA must act on SIP re- visions within four months, and properly rejected the gov- ernment's position that EPA may act on SIP revisions at its sole convenience.“ However, the First Circuit failed to relate the four-month rule to EPA’s secondary role in the SIP process and erroneously assumed that the deadline is unrealistic. Review of the statutory and policy basis for the four-month rule is important to an understanding of the reasons why the remedy fashioned by the First Circuit is insufficient, and why a temporary bar on enforcement is necessary. In its opposition to General Motors’ petition for certiorari, EPA stated that it reserved the right to challenge the existence of the four- month rule should this court grant certiorari. Brief for the United States in Opposition at 8 n.1 (November 1989). However, since EPA did not itself petition for review, and since that issue was not presented in General Motors’ petition, such a right was not EPA's to reserve. See Sup. Ct. Rule 24.1(a). Moreover, as discussed below, the Court of Appeals’ decision on this point is clearly not plain error evident from the record,” and thus is not properly raised here at this point. Id. 13 A. The Statute Requires EPA To Act Upon SIP Re- visions Within Four Months. We begin with the language of the statute. Section 110(aX2) of the Act, as noted above, establishes a detailed list of substantive and procedural requirements governing EPA’s review of SIPs. 42 U.S.C. § 7410(aX2). This pro- vision requires EPA to approve, within four months, any SIP that provides for the attainment and maintenance of the national air quality standards and fulfills other tech- nical and procedural requirements. Congress anticipated that the design and implementation of SIPs would be a continuing process, and thus provided in § 110(a 3) of the Act for the revision of SIPs by the states. 42 U.S.C. § 7410(aX3). This authority for SIP revisions does not contain a sep- arate list of requirements for EPA approval. Instead, it simply provides that EPA shall approve any revision of an implementation plan [if the Administrator of EPA] de- termines that it meets the requirements of paragraph [§ 110(aX2)] and has been adopted by the State after rea- sonable notice and public hearings.” Jd. Section 110(a\2) requires EPA action on SIPs within four months. Although there is no express deadline in § 110(aX3) for EPA action on SIP revisions, the express incorporation of the sub- stantive and procedural requirements of § 110(aX2) makes it evident that Congress intended the four-month time limit for action on SIPs to apply to SIP revisions as well.“ In short, all of the requirements of § 110(aX(2), including the four-month rule, apply with equal force to EPA review of SIP revisions under § 110(aX3). There is no reason to believe that Congress regarded the expeditious approval of SIP revisions to be any less Further support for this conclusion is found in 42 U.S.C. § 7410(g), which discusses circumstances in which EPA has not acted on a SIP revision designed to prevent plant closings “within the required four month period. See note 34 below. 14 important than the approval of original SIPs. As this Court stated in discussing section 110(aX3) in Train, supra: “Far from evincing congressional intent that the Agency assume control of a State’s emission limita- tions mix once its initial plan is approved, the revision section is to all appearances the mechanism by which the States may obtain approval of their developing policy choices as to the most practicable and desirable methods of restricting total emissions to a level which is consistent with the national ambient air standards.“ 421 U.S. at 80. The Court pointed out that the statute “left to the States considerable latitude in determining specifically how the standards would be met. This discre- tion includes the continuing authority to revise choices about the mix of emission limitations.“ Jd. at 87 (emphasis added). All of the courts of appeals that have had occasion to address this issue, including the decision below, have con- cluded that the four-month rule applies to SIP revisions as well as to original SIPs. American Cyanamid Co., su- pra; Duquesne Light Co. v. EPA, 698 F.2d 456, 471 (D.C. Cir. 1983); Council of Commuter Organizations v. Gorsuch, 683 F.2d 648, 651-52 (2d Cir. 1982); Council of Commuter Organizations v. Thomas, 799 F.2d 879, 888 (2d Cir. 1986); United States v. Alcan Foil Products, 889 F.2d 1513 (6th Cir. November 21, 1989). EPA’s position that it may act on SIP revisions at its convenience is thus contrary to the unanimous weight of judicial authority. See also Sierra Club v. EPA, 719 F.2d 436, 469 (D.C. Cir. 1983), cert. denied, 468 U.S. 1204 (1984). In a one-line dictum in a footnote, the Sixth Circuit previously suggested that the four-month rule might not apply to SIP revisions. United States v. National Steel Corp., 767 F.2d 1176, 1182 n.1 (6th Cir. 1985). However, in its recent opinion in Alcan Foil Products, supra, the Sixth Circuit disavowed that dictum and held that the four-month rule does apply to SIP revisions. 15 B. The Four-Month Rule Serves As An Important Check On EPA Efforts To Run State Programs cts To Preserve The Primary Role Of The A fundamental problem with the First Circuit’s decision is its assumption that the four-month rule is simply a procedural device, and that a judicially determined rea- sonableness test should be substituted for the provision enacted by Congress. There is no discussion in the First Circuit’s decision of the function of EPA’s review, and the court thus failed to grasp the rationale for the enforcement bar in American Cyanamid. One or two years might be a reasonable time for review if EPA were supposed to be undertaking a comprehensive review of all of the details of a SIP submission. However, that is not the role intended by Congress. Instead, Congress gave EPA a limited role in reviewing SIPs and specified four months as a reason- able time for EPA to exercise that function. Allowing EPA an open-ended review of SIPs gives the Agency a licence to ignore state policy choices and to frustrate the intent of Congress. In order to ensure that state prerogatives are given full effect, Congress has carefully limited EPA’s ability to in- terfere with a State’s SIP and SIP revision by (1) requiring final EPA action within four months, and (2) explicitly limiting the grounds upon which EPA may decline to ap- prove a SIP or SIP revision. 42 U.S.C. § 7410(al 2). (3); Train v. Natural Resources Defense Council, supra, 421 U.S. at 79. The four-month rule must thus be viewed in »The legislative history indicates that Congress regarded time limits on EPA's review of SIPs as important to the efficient and expeditious attainment of air quality goals. See, e.g., S. Rep. No. 1196, 91st Cong. 2d Sess. 21 (1970), reprinted in 1 U.S. Senate Committee on Public Works, A Legislative History of the Clean Air Act Amendments of 1970, at 421; see also 1 1970 Legislative History, at 385 (Senate debate). 16 the context of broader Congressional concern as to EPA’s limited role. The legislative history of the 1977 amendments to the Act underscores the intent of Congress to preserve the primary responsibility’ of the states. 42 U.S.C. § 7401(aX3). The Senate Report states that Congress was concerned with the need to augment the “authority” and “responsibility” of state and local air pollution control pro- grams. States and localities are given broad discretion to make decisions within the framework of national pol- icy. S. Rep. No. 95-127, supra, at 10. The report also stresses that the “Federal role must be one of support rather than control. The Federal Government does not and will not have the resources required to do an effective job of running state air pollution control programs. Id. The report concludes that EPA will “protect and enhance air quality more by fulfilling its support role rather than by trying to run state programs. Id. Numerous decisions by this Court and lower federal courts have underscored the primary role of the states in developing and implementing SIPs. This Court held in 1975 that “‘[t}he Act gives the Agency no authority to question the wisdom of a State’s choices of emission limitations if they are part of a plan which satisfies the standards of § 110(aX2)...."" Train v. Natural Resources Defense Coun- cil, supra, 421 U.S. at 79. In Union Electric Co. v. EPA, 472 U.S. 246, 265-67 (1976), the Court again emphasized the primary role of the states in establishing and imple- 8. Rep. No. 95-127, 95th Cong. Ist Sess. 10 (1977). The 1977 House report also stressed that one of the Act's principal purposes was “to give the States more flexibility in determining how to protect public health while still permitting reasonable new growth.” H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 213 (1977). Similar views were expressed during debate on the 1970 amendments. See, ¢.g., 1 1970 Legislative History at 113, 127. —— 17 menting regulations under the Act, holding that economic and technological issues should be addressed to the state agency formulating the plan, not to EPA. Since this Court’s decisions in Train and Union Electric Co., the lower courts have consistently underscored the importance of the states’ role as primary designers and implementers of regulations under the Act.“ The Eighth Circuit succinctly summarized the federal-state division of authority under the Act: [Type Clean Air Act creates a partnership between the states and the federal government. The fed- eral government through the EPA determines the ends—the standards of air quality—but Congress has given the states the initiative and a broad responsi- bility regarding the means to achieve those ends through state implementation plans and timetables for compliance. The Clean Air Act is an experiment in federalism, and the EPA may not run roughshod over the procedural prerogatives that the Act has re- served to the States. Bethlehem Steel Corp. v. Gorsuch, supra, 742 F.2d at 1036 (emphasis added). C. EPA’s Pocket Veto“ Of A SIP Revision Frus- trates The Statutory Scheme. The division of federal and state authority in the Act is embodied in the specific and detailed limits on EPA's authority to interfere in a state’s policy choices concerning air quality control. The statute does not permit EPA to write SIP requirements itself, either directly or indirectly, pervisory authority under the Act is limited to review of See, eg. Concerned Citizens of Bridesburg v. EPA, 836 F.2d 777, 780-81 (3d Cir. 1987); Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145, 1148 (7th Cir. 1983); Florida Power & Light Co. v. Costle, 650 F.2d 579, 588 (5th Cir. 1981); Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (ist Cir. 1976). 18 state actions; unless a state fails to promulgate a SIP, EPA is not permitted to promulgate SIP requirements itself.“ As the Eighth Circuit concisely phrased it, the state proposes, [and] the EPA disposes.” Id. at 1036. Un- der the statute, EPA has only two choices in responding to a SIP revision, approval or disapproval. There is no middle course. Train v. Natural Resources Defense Coun- cil, 421 U.S. at 79-80. By ignoring the four-month rule, however, EPA has effectively created for itself a third option, and thus has assumed greater powers than Congress conferred. If EPA agrees with a revision, it approves it. If EPA disagrees with the revision the Agency simply ignores it, often for years at a time.“ This pocket veto power is nowhere authorized in the statute, and it is directly contrary to Congressional intent that the states, not EPA, have the authority to choose among alternative regulatory options for implementing the Act. Bethlehem Steel Corp. v. EPA, 782 F.2d 645, 650 (7th Cir. 1986). Where EPA pocket *When a state fails to promulgate a SIP (or fails to revise and resubmit a SIP that EPA has validly disapproved), EPA may, after compliance with additional requirements, promulgate a SIP on behalf of the state. 42 U.S.C. § 7410(c). If the Agency finds that an existing SIP no longer satisfies the statute, it may require the state to revise it. 42 U.S.C. aalen) By delaying action, EPA has effectively imposed on the state its decision to recognize and enforce the original SIP, contrary to the considered choice made by the state to amend the SIP. In Indiana & Michigan Electric Co. v. EPA, 733 F.2d 489 (7th Cir. 1984), the State of Indiana promulgated a SIP that included both 7 5 : beyond the statutory four- i Agency appropriates for itself the de facto power to ef- fectively disapprove a SIP through inaction—all without having to comply with the procedural and substantive lim- itations on such disapproval that would otherwise apply under Section 110(aX2) of the Act.” In short, pocket vetoes hold the states’ legitimate policy choices hostage to EPA's dilatory schedule. In numerous cases decided since the 1970 amendments to the Act, the courts—including this Court—have stressed that the statute means what it says on the scope of EPA authority in this area, and that the powers expressly granted the Agency under the Act are the only ones that it possesses. Thus, for example, this Court held in Union Electric Co. v. EPA, 427 U.S. 246 (1976), that EPA may not consider in its SIP review process factors, such as technical feasibility, that Section 110(aX2) of the statute does not expressly permit it to consider. The courts have also stressed that the provisions of Section 110 are integral to the statutory scheme, and that EPA may not ignore those provisions—or invent new devices—where the effect is to increase EPA's involvement in the promulgation and implementation of SIPs at the expense of the states.” “A “pocket veto" of a SIP revision also may have the effect of denying states and interested parties any opportunity for judicial re- view, since there is arguably no final agency action on which review may be sought. For example, although EPA is permitted under certain circum- stances to approve a SIP in part and disapprove it in part, it may not do so whore the effect would be to render the approved portion of the SIP more stringent than the state intended. Bethlehem Steel Corp v. Gorsuch, 742 F.2d at 1037; Indiana & Michigan Electric Co. v. EPA, 733 F.2d 489 (7th Cir. 1984), see State of Michigan v. Thomas, 805 F.2d 176, 186 (6th Cir. 1986). If EPA finds that a plan requirement is not sufficiently stringent to achieve national standards, then the Agency must follow the procedures established under the Act for pro- 20 These decisions, and the mischief created by EPA inaction, underscore the need to ensure that EPA acts on SIP re- visions within the four-month statutory period. II. EPA’S FAILURE TO TAKE PROMPT ACTION UPON A SIP REVISION BARS AGENCY ENFORCEMENT OF IN- CONSISTENT PROVISIONS OF THE PRE-EXISTING SIP. Given EPA's obligation to act upon SIP revisions within four months and, as discussed below, EPA's deliberate policy of ignoring this obligation, the question presented is whether EPA should be barred from enforcing pre-ex- isting SIP regulations that the states have revised. This issue has so far been considered by four courts of appeals, which have adopted different approaches to dealing with the problem. We submit that only the enforcement bar adopted by the court in American Cyanamid properly im- plements the statute. A. Federal Enforcement Of SIP Requirements That A State Has Sought To Change Is Inconsistent With The Primary Role Of The States Envisioned In The Statute. In American Cyanamid Co. v. EPA, the Fifth Circuit reviewed an EPA administrative penalty determination un- der Section 120 of the Clean Air Act.“ In that case, the State of Louisiana had promulgated a SIP revision in 1982 that would permit American Cyanamid to instal] advanced mulgation of a substitute requirement; it may not avoid those proce- dures through a partial approval that distorts the state s plan to achieve the desired stringency. Bethlehem Steel, 742 F.2d at 1035. „Under Section 120, EPA is empowered to impose administrative penalties on noncomplying sources. Section 113 of the Act, under which this action arises, permits EPA to seek civil penalties and injunctive relief through an action in federal district court. The distinction between these two enforcement remedies is not important for purposes of the issues currently before the Court. See United States v. Alcan Foil Products, supra, slip op. at 9-10. 810 F.2d at 499. The court therefore 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 rejects that revision. Jd. at 500. The Fifth Circuit’s decision in American Cyanamid ex- pressed concern with the impact of EPA's deliberate dis- regard of the states’ prerogatives under the Act: “Where, as here, the state has proposed a revision to its SIP which clearly authorizes local businesses to act in accordance with it without running afoul of the + : 2 : i : Be a i See generally, Chevron US.A., Inc. v. Natural Resources Council, 467 U.S. 837 (1984). As in this case, the SIP revision was promulgated in response to a published EPA policy. menting standards and enforcing the Clean Air Act.’ 810 F.2d at 500. Thus, the court pointed out, the obvious unfairness of the situation to American Cyanamid was al- most beside the point: Me emphasize the importance of the EPA acting not for the benefit of American Cyanamid, but for the benefit for the State of Louisiana which is by statute designated to play a significant cooperating role with the EPA. As the Fifth Circuit recognized, EPA enforcement of a pre-existing SIP that the state has attempted to change is fundamentally inconsistent with Congress s intent that states play the primary role in promulgating and imple- the statute s carefully crafted balance of state and federal authority. “Id. The Fifth Circuit recently held that a similar bar applies enforcement of EPA's belated disapproval of a delayed der issued by a state under Section IId) of the Act. General Corp. » EPA, 871 F.2d 495 (Sth Cir. 1989). In that sought to disapprove an order issued by the State of Texas. the statutory deadline for EPA review had long and the order itself had ceased to be effective by its own terms. Circuit held that belated EPA disapproval of the order under circumstances could not be effective for purposes of enforcement. court found that permitting effective EPA disapproval in such a would interfere with the “authority of the states as the primary ulators of air quality under the Clean Air Act.” Jd. at 499-500. 11347 tit ati He cumstances. Thus, in enforcement against ican Cyanamid the Fifth Circuit did not sacrifice the interest of Louisiana citizens in clean air; it vindicated the right of Louisiana, not EPA, to decide what the public interest was in that situation.” Similarly, in this case, the question is not whether the interest of Massachusetts citizens in clean air should triumph over EPA’s procedural misconduct; but rather : This conclusion is not dependent upon any assumption about the ultimate approvability of the SIP revisions at issue. The State’s judg- ment that some change in its SIP is appropriate must be accorded substantial deference. Even mitted revision, it not follow that any revision would be invalid EPA's concerns. Thus, for example, if EPA had rejected the American Cyanamid bubble revision within four months, the State might have original revision in a manner acceptable to EPA. By delaying action on the revision until after the revised deadline was long past, EPA deprived the State of these alternatives; indeed, the new paint shop was operational by the time EPA took final action 24 whether the Commonwealth of Massachusetts or EPA has the right to decide how that interest in clean air is to be accomplished.” If a state is so fundamentally wrong in its judgment on this point that its decision, embodied in a SIP or SIP revision, violates federal requirements, then EPA should disapprove it. But EPA may not simply ignore a state’s judgment about the interests of its own citizens, or delay its decision until the issue becomes moot. In earlier proceedings in this case, EPA has expressed concern that industries might seek to circumvent regula- tory requirements and deadlines by having state agencies adopt frivolous SIP revisions. This idle speculation, in ad- dition to being insulting to the states, is clearly incon- sistent with Congress’s own perception and desire that the states be granted considerable deference in their design and implementation of SIPs. EPA’s argument on this point displays EPA’s own disdain for the states and their ability to make reasoned policy choices in this area. Congress, however, did not agree with this view, and it is Congress's view that must prevail. B. The Remedy Fashioned By The Fifth Circuit In American Cyanamid Is An Appropriate, Non-In- trusive Response To EPA's Failure To Comply With A Mandatory Statutory Requirement. The Fifth Circuit’s remedy in American Cyanamid re- stores the balance of federal and state authority under the Clean Air Act. The key to the Fifth Circuit’s approach is its deference to EPA: the court did not require EPA to complete its review of all SIP revisions within four months (although that is what the statute requires), nor did it threaten or impose any sanction against EPA for failing Massachusetts here decided that the long-term interests of its cit- izens in improved air quality warranted a temporary compliance ex- tension in return for long-term emissions decreased substantially below that required by 310 CMR 7.18(7). 25 to meet this obligation as a general matter. Instead, the court simply held that EPA may not combine SIP revision delay with an enforcement action. If EPA wishes to ini- tiate an enforcement action that is inconsistent with a pending SIP revision, then it must first act on the revision. If EPA does not devote resources to timely review of a revision, then it need not do so, as long as it does not try to use its resources instead to bring an inconsistent enforcement action. Thus, the Fifth Circuit’s approach leaves EPA’s fate in the Agency’s own hands. There is no permanent bar on EPA enforcement (unless, of course, the SIP revision is consistent with the statute and EPA is ultimately obligated to approve it). If EPA wishes to bring an enforcement action that is inconsistent with a pending revision, it sim- ply has to act on the revision first.” Available evidence suggests that the actual increased burden imposed on EPA by the American Cyanamid ap- proach is minimal. The Agency has estimated that, of the approximately 350 SIP revisions it currently receives each year from all 50 states, only nine are relevant to enforce- ment actions by the Agency.“ EPA can hardly argue that There could, of course, be circumstances under which quick action is required against a source that presents a substantial and immediate endangerment to public health. In such cases, however, Section 303 of the Act expressly grants authority to EPA to seek an emergency re- straining order in federal district court. 42 U.S.C. § 7603(a). The penalty provisions of Sections 113 and 120 would not ordinarily be of immediate importance in such a situation. The effect that a pending SIP revision might have in a case brought under Section 303 has not yet been considered by the courts. That issue is certainly not presented in this case, where EPA did not seek to invoke its emergency authority—and clearly could not have done so in any event since the source at issue was already permanently closed at the time the a7“ on was brought. “EPA, Report of Audit: Review of EPA's Process for Approving/ Disapproving State Implementation Plans and Revisions, E1K6°8-11- 0045-9100210, at 16 (March 1989) (copy lodged with the Clerk of the Court). 26 it would be an insurmountable task to identify this handful of revisions, which amounts to less than one SIP revision for each of the ten EPA regional offices, for timely review and action.“ Before the First Circuit, EPA argued that the American Cyanamid remedy is inconsistent with this Court’s decision in Brock v. Pierce County, 476 U.S. 253 (1986). In that case, the Court held that the Department of Labor's failure to make a finding of misuse of federal grant funds within 120 days of an allegation, as required by the statute, did not bar the Department from later seeking to recover such funds. In this case, there is no dispute that EPA may still disapprove a SIP revision if it fails to do so within four months and that, once it does disapprove the revision, it may then enforce the old SIP prospectively.“ The Amer- ican Cyanamid remedy is thus entirely different from the one considered in Brock: EPA remains free to disapprove the revision, but if it does not act within four months, it may not collect penalties for the interim period. There is also an important factual distinction between this case and Brock arising from the context in which the delay occurred. The Court's opinion in Brock did not sug- gest that the delay in question was the result of anything other than negligence on the part of Department officials. See 476 U.S. at 260. Here, in contrast, the delay is not simply the result of negligence by EPA officials; it con- EPA has advance notice of SIP revisions when proposed by a state so in practice the Agency has several months’ lead time before the four-month period for EPA review begins to run. *The American Cyanamid approach is therefore consistent with this Court's indication in Train v Natural Resources Defense Council, supra, that a company seeking judicial review of EPA's disapproval of a var- iance may not rely upon the pendency of such review as a defense to an enforcement action. 421 U.S. at 92. Under the American Cyanamid approach, once EPA does act to disapprove a SIP revision, it is free to enforce the old SIP prospectively, even if the State or a private party seeks judicial review of that disapproval. 27 stitutes the accepted and considered policy of the Agency, which admits that its policy is to ignore the four-month requirement. See, g., J.A. 103-11; pages C. The Fifth Circuit's Properly Implements Congress’s View Of The Reasonable Time For EPA Review. The First Circuit declined to follow American Cyanamid because it assumed, without citing any factual support, that EPA would not be able to comply with the four-month rule. 876 F.2d at 1067. EPA’s failure to meet the four- month deadline is not simply a matter of inadvertence or inability, however, but rather a deliberate policy of indif- ference to state policy choices and a decision to use the SIP review process to assert control over state decisions in a manner that Congress rejected. The problem stems not from the limited period that EPA is given to fulfill its statutory role, but from EPA's efforts to expand its role into one that cannot be fully performed within the statutory period. The First Circuit’s approach in this case thus constitutes a deliberate second-guessing of Congress’s decision on this issue. The First Circuit assumed that the four-month rule Moreover, in Brock, the Departments delay in seeking recovery had no substantive impact on whether the funds were in fact misspent and should be recovered. Here, in contrast, EPA is seeking penalties for a violation that arguably would not have occurred at all if EPA manner. alternatives that might have been acceptable to EPA. By delaying to the point where the issue became moot, EPA completely eliminated this opportunity. The First Circuit incorrectly suggested in a footnote of its opinion that the American Cyanamid approach might render § 110g) of the Act superfluous. 876 F.2d at 1069 n.6. Section 1100 of the Act, 42 U.S.C. § 7410(g) allows a state to issue temporary emergency suspen- embodies an error on the part of Congress and that EPA should be afforded more time by the courts. Yet the court cited no authority for this assumption, and none exists. When the statute was enacted, Congress evaluated the limited supervisory task that it was assigning to the Agency in evaluating a SIP or SIP revision, and deter- mined that four months was a reasonable period of time to perform that task. As a matter of law, Congress has already established four months as a “reasonable” time for EPA to act. Any longer period of time is per se un- reasonable. EPA's failure to comply with the four-month rule in reviewing the Massachusetts SIP revision at issue here is not an isolated case. As discussed above, there have now been several litigated cases in which EPA has brought enforcement actions that are inconsistent with SIP revi- sions that, at the time the suits were brought, had been pending before EPA for many months, if not years.“ sions of SIP requirements where necessary to prevent a plant from closing. This section envisions a situation where the state has adopted a SIP revision to provide relief to the plant, and the state concludes that a suspension of the previous SIP is appropriate without waiting for EPA to act on the revision “within the required four month period Id. The American Cyanamid remedy, in contrast, would bar EPA en- forcement only after the four month period expires, and thus would not make § 110(g) superfluous. The First Circuit apparently interprets § 110g) as requiring that the state wait until the four month period for EPA action on the SIP revision expires before issuing the suspension. This interpretation is not well founded, given the fact that the suspension is only effective under § 110(g\2) for four months. Moreover, Congress obviously con- templated that any rare delay that occurred before EPA completed its review would not last beyond the four month suspension. Otherwise, § 110(g) would only serve to delay economic dislocations rather than preventing them as Congress intended. * See, eg. American Cyanamid Co. v. EPA, supra (SIP revision submitted for EPA review more than two years before enforcement action filed; no final action ever taken on revision); United States v. supra. Thus, for example, many substantial delays are at- tributable to the Agency’s “inordinate concern for indi- vidual actions” and its insistence that SIP requirements de similar State to State and source to source. 54 Fed. Reg. at 2216-17. This EPA-imposed requirement of con- sistency is, of course, directly inconsistent with the statute, in many cases, EPA delays its review of SIP revisions for Alcan Foil Products, supra (SIP revision submitted for EPA review one year before enforcement action filed; EPA disapproved revision more than a year later, after district court granted summary judgment for defendant). See also State Implementation Plan Processing Reform, 54 Fed. Reg. 2214 (1989). " See EPA, Report of Audit, supra, at 8, 20-21. The experience of the Commonwealth of Massachusetts in this case was therefore appar- ently a typical one: EPA took approximately 33 months to complete its review of the Massachusetts revision involving the Framingham facility. 30 lengthy periods in order to ensure a consistency that Con- gress intentionally did not require. Another important source of EPA delay is its deliberate practice of holding. often for years, final action on pend- ing SIP revisions pending formulation of new or revised EPA policies relevant to the revisions.“ The Audit Report by EPA's Inspector General reveals that this was the cause of the delay at issue in the American Cyanamid case: “EPA published an interim policy in December 1982 for reviewing requests for emissions trading. How- ever, a final policy was not developed until August 1986. In the interim, the review of SIP revisions re- questing emissions trading was put on hold. In the case of American Cyanamid, the Agency has still not taken final action on the revision, which was submitted more than seven years ago. Obviously, Congress did not intend that EPA development of policies and guidance doc- uments to assist the states would take precedence over timely action on the SIP revisions themselves.” A related problem has been the “moving target syndrome,” under which EPA review of a SIP revision that was consistent with EPA policy at the time it was proposed takes so long that the revision becomes ir _nsistent with a new or revised Agency policy. Jd. at 2216. Although it has not yet been fully developed in the record, it appears that General Motors may well have been the victim of such a change in EPA policy. The Agency's 1981 policy clearly contemplated—and indeed encouraged—revisions of the type promulgated by Massachusetts in this case. Yet, as EPA stated in its proposed disapproval notice in this case, the Agency apparently later decided that it preferred to address delays in automobile painting emission requirements through an enforcement mechanism. See note 6 above. „EPA. Report of Audit, supra at 12. EPA has also identified management problems, including excessive bureaucratic review requirements for even simple SIP revisions, a lack of accountability within the Agency for timely processing of SIPs, and the absence of an adequate system for tracking revisions through the process, as contributing to delays. 54 Fed. Reg. at 2216-17; EPA. Report of Audit, supra, at 7-9. 31 EPA has conceded that the lengthy delays in its review of SIP revisions seriously impede many of the fundamental goals of the Clean Air Act: “The EPA is concerned that uncertainty and exces- sive delays in processing SIPs frustrate the devel- opment of an optimum State/Federal partnership, cause confusion for sources regarding applicable reg- ulations, and generally dampen initiative in State reg- ulatory programs.” 54 Fed. Reg. at 2214. Congress clearly did not intend EPA to undertake the detailed, highly bureaucratized review of SIPs that EPA's extended internal schedules now contem- plate. man quires an evaluation by the district court what constitutes a reasonable time for EPA review * SIP revisions. In suggesting that the district court should eval- uate this issue on a case-specific basis, the First Circuit has all but ignored the fact that the issue is already de- cided by the statute itself. III. ALTERNATIVE REMEDIES SUGGESTED BY EPA AND BY THE COURT BELOW ARE INADEQUATE, INTRUSIVE, AND CUMBERSOME. The American Cyanamid remedy is most consistent with Congressional intent. The remedies proposed by the court below are entirely ineffective as meaningful remedies for EPA's failure to comply with the four-month rule, and are substantially inferior to the American Cyanamid remedy in achieving this goal. In addition, these alternative rem- edies would inevitably require substantial and detailed in- volvement by the lower courts in the day-to-day functioning of the Agency. A. Alternative Remedies Are Insufficient To Give Full Effect To The Primary Role Of The States Under The Act. The alternatives that have been suggested to the Amer- ican Cyanamid remedy simply do not restore the primacy 32 of state authority intended by Congress that is away by EPA's noncompliance with the four-month American Cyanamid is the only remedy that provides EPA a real incentive to act in a manner that respects and gives effect to the role of the states under the Act. EPA's policy of delaying action on SIP revisions for extended periods of time, coupled with its enforcement of existing SIPs, inevitably has a serious negative impact on the states’ ability to ensure that their SIPs reflect devel- opments and changes in state priorities. Deferrals such as those involved here call for “hard choices, choices which the state regulator must make in the first instance. Gen- eral Motors v. EPA, supra, 871 F.2d at 504. With no prospect that EPA will even try to act upon revisions in a timely manner, the states’ practical ability to revise their SIPs is seriously impaired. This is particularly the case where the revision involves a short-term change in the SIP, such as the extension involved here. EPA has con- ceded that it “should not delay action on a SIP revision in such a manner as would thwart the state’s intent in The alternative remedy suggested in the Duquesne decision— mere deferral of enforcement action with retroactive penalties if the revision is ultimately disapproved—does even less to address the needs of the states. As the Fifth Circuit pointed out in American Cyanamid, “the Duquesne holding provides little or no incentive to the EPA to abide by § 7410s four-month rule; the EPA loses nothing by its con- tumaciousness 810 F.2d at 499. The states, on the other hand, lose just as much as if the courts ignored EPA's disregard of the four- month rule altogether. As long as EPA has no incentive to speed its review process, the ability of the states to implement changes in their plans will be effectively frustrated. requesting the SIP revision. Although EPA has given lip service to the need for timely action, the Agency's ee ee en See pp. 28-31 ulation under the Clean Air Act be a flexible, continuously re ean dl eatlte source in any given location will inevitably Ie of emissions from that source and from other sources, the overall air quality in the area, the availability of control technology, the cost of that technology, the economic im- portance of the source 's operations to the state, the en- 4 factors. Virtually all of these factors are subject to change over time. By denying the states an effective ability to revise their SIPs to reflect such changes, EPA denies the states the ability to tailor their SIPs to their own partic- ular circumstances, as Congress intended. Moreover, if the courts were to permit EPA to proceed with enforcement actions that are inconsistent with SIP revisions, then com- panies will in the future decline to accept and act upon changed state requirements embodied in SIP revisions dur- ing the period (often years) of EPA review. The First Circuit's alternative remedies condone EPA's 1 2 ai 8. 1119792 712115 4 e 8 12111111 83 Union Electric Co. v. EPA, supra, 427 U.S. at 256-64. 215 HH: x Subjects Industry To Conflicting Fed- vides A Serious Disincentive To The Adoption Of Innovative Pollution Control Strategies. B. EPA's Failure To Take Prompt THe eG RHE | lean ‘i 10 f 1177 1145 21221 0 M Aft 1 , Hie eh 11 11112 : THE Hula BET ell 1 I [Heel Without an effective remedy for EPA's failure timely action on a SIP revision, industries will + E i Hi i fi Hl Ha 0 1 0 iT have been cheaper in the short term simply to add controls to the old facility and meet SIP deadline. If General Motors would “pocket veto” the SIP revision, and that it might state- 7 > K r tno car aa innovative technologies. Perhaps the greatest anomaly in enforcement is the Agency's attempt to seek penalties for conduct that EPA itself does not necessarily believe to be “wrong.” The American Cyanamid case itself is a classic example of this situation. In that case, EPA had been unable to make up its mind whether the bubble that the company was re- lying upon was or was not consistent with the Act, even though the revision incorporating that bubble had been pending before the Agency for more than two years. Yet EPA asked the court to confirm substantial penalties against the company for relying upon In other words, EPA asked the court to agree to penalize the com- pany for doing something “wrong” even though EPA itself 37 still not decided whether the company’s bubble is or is not consistent with the Act. C. A Bar On Enforcement Actions That Are Incon- sistent With Pending SIP Revisions Upon Which EPA Has Failed To Act Within Four Months Is Necessary To Preserve The Integrity Of EPA’s SIP Review Process. The American Cyanamid remedy is also important as a mechanism to ensure the fair and even-handed review of SIP revisions by EPA. As the Fifth Circuit pointed out, it will be difficult, if not impossible, for EPA to review a —— ——5 1 —äĩ there is a substantial danger that permitting such enforce- ment actions to proceed may encourage the EPA to reject [SIP] revisions that it should accept. 810 F.2d at 499. As a practical matter, once the enforcement proceeding has begun, officials will inevitably be “reluctant to approve [a state’s] revision and admit that [the company] is not liable for noncompliance after all. Jd. In those circum- stances, “EPA's even-handed administration of the Act will be open to substantial question. Id.; see also General Motors Corp. v. EPA, 871 F.2d 495, 501 (5th Cir. 1989). 1 HHS 1 BE : it ea Hue 17228171 11477117 Hit | i | ; ii 11 : : E . 38 This concern is particularly strong in this case. After July and August 1987, when the old Framingham paint facility shut down and the new deadline established by the SIP revision passed, the revision ceased to have any rel- evance whatsoever in the regulatory context. After that point, the revision, and EPA's review of it, had continued relevance only to this enforcement action which itself was filed after the regulatory issue had become moot.“ EPA's act of publishing its final disapproval the day its brief was due and filed in the First Circuit unmasked its pretense of objectivity; this action served no purpose except to sup- port the Agency’s enforcement efforts in this proceeding. Because the SIP revision in this case was by its nature temporary, EPA's delay raises special concerns. If EPA acts promptly, it must consider the merits of the SIP revision and, if it has objections, advise as to what might be done to meet these objections. If EPA fails to act, the state and the company are without guidance or options.“ primary role of the states. There is a very significant practical difference between the potential internal tensions in EPA's role that the First Circuit identified and the even stronger tensions that are created when EPA commits itself publicly to an enforcement action without first completing a regulatory decision that might have the effect of mooting that action. In such a case, there will be extremely strong pressure on Agency officials to disapprove the revision in order to avoid subjecting the Agency to criticism for wasted resources and unfair harassment of the regulated community. “EPA made it clear as early as December 1986, when it published its Notice of Proposed Rulemaking, that it was considering the Mas- sachusetts revision and the Agency's enforcement strategy as a single package and was inclined to the view that ‘‘[e]xtensions of the Decem- ber 31, 1985 date should instead be obtained through an enforcement mechanism. 51 Fed. Reg. 43394, 43395 (1986). The Agency thus con- ceded that its regulatory and enforcement decisions were part of a single, combined strategy in which enforcement would be given priority. At that point, objective review of the revision became a practical im- possibility. — 39 General Motors v. EPA, supra, 871 F.2d at 500. When EPA dawdles not only beyond“ the statutory four month period but, as happened here, “past the expiration date of [the SIP revision], the EPA’s review of the [SIP re- vision] necessarily takes on an abstract, almost counter- factual character.” Jd. Once the Agency has decided to pursue enforcement, EPA is likely to disapprove the SIP for reasons that are simply window dressing for its en- forcement action. The filing of an enforcement action be- fore the regulatory process has been completed totally skews the regulatory process. Id. at 501. One need not presume actual misconduct on the part of EPA officials in order to recognize that such a situation seriously undermines the federal-state partnership upon which the Clean Air Act is based. Where, as here, EPA’s delay continues for so long that completion of the review process has no practical purpose other than support of the Agency's commitment to an enforcement action, there will, at minimum, inevitably be a strong appearance of impro- priety. Common sense suggests that something is amiss when an agency purports to disapprove an expired order ,after the fact.“ Such an appearance undermines confi- "dence of the public and the regulated community that SIP revisions will be reviewed by the Agency on their merits, unprejudiced by extraneous Agency priorities. An appear- ance of bias may discourage states from revising SIPs containing innovative solutions to attain air quality stand- ards. By creating the appearance that its review is in fact influenced, if not governed, by such extraneous factors, EPA does a substantial disservice both to its state partners and to the public. The Fifth Circuit's approach in American Cyanamid serves to further the “even-handed administration of the General Motors v. EPA, supra, 871 F.2d at 504. pressure on EPA to disapprove SIP revisions in cases subject to enforcement actions will continue unabated. In this respect as well, therefore, the Fifth Cireuit's approach is clearly superior to that of the First Circuit. D. The American Cyanamid Remedy, Unlike Other Proposed Remedies, Does Not Require Extensive And Continuing Judicial Involvement In EPA's Al- location Of Agency Resources. In contrast to the First Circuit’s two- fold remedy, the American Cyanamid enforcement bar involves relatively little judicial interference with EPA's administrative and enforcement decisions. EPA is left entirely free to decide when it will act on a SIP revision. It is also left entirely free to prosecute any enforcement action that it chooses— provided that it first acts on any SIP revision that, if approved, would be inconsistent with such an action.“ How EPA makes these decisions, and how it allocates its re- sources to support them, is left entirely to the Agency's discretion, and the courts would not examine how that discretion is exercised. The alternative remedies proposed by the First Circuit in this case are a very different matter. The First Circuit suggested that there should be two principal remedies available for dealing with EPA's delay: (1) consideration by the district court in a penalty action of the reasona- bleness of the delay as a factor relevant to the amount As noted at pp. 25-26 above, this should not be difficult for EPA to accomplish. 41 of penalties, and (2) a civil action pursuant to Section 304(aX2) of the Act to compel EPA to act.“ The First Circuit’s penalty reduction” approach would result in intense judicial examination and involvement in EPA's internal management. If the “reasonableness” of EPA's delay is a factor relevant to the determination of penalties, then the way in which EPA goes about decid- ing how to conduct its review of the revision, including its internal schedule for review, the manpower assigned to the project, and similar matters, would be open to ex- amination.“ The court would have to decide, inter alia, whether the Agency should have more re- sources to reviewing the particular revision at issue, or whether the review process should have been managed more efficiently. Ultimately, the court would be required to examine and opine on the efficiency and reasonableness of EPA's internal management Obviously, this burden- 876 F.2d at 1067-68. Section 30 a2) authorizes a civil action by “any person to compel EPA “to perform any act or duty under this Act which is not discretionary... 142 U.S.C. § 7604(a,(2). In stating the relevant standard for judging EPA's delay as one the Agency act within a specific period of time. “The district court may also become enmeshed in consideration of the merits of EPA's decision to disapprove the SIP revision, even r — — the juriedi of the court of appeals. 42 U.S.C. § 7607(by1). “ See, eg Natural Resources Defense Council v. Thomas, 705 F. Supp. 1, 4 (D.D.C. 1988). In many cases, such a defense would pre- sumably require factual findings following a trial. In such cases, the : 5 7 a : i 11 4612811814125 : ii i inte 15 4 i i f 11 1 fit aT 14, 1 HE Tih 1 fei 347881 58827 l 1 Sail Te eae 2 5 esese gee. Jes 883 1215117 , 1771 Ji ia Ai fh i 11 0 ii If | $ 1111155 1 st A ne acelin innit gedit 1110181 427 US. “In this regard, we would note that Congress can hardly have in- For example, EPA missed—in many cases by years—the statutory The courts that have addressed EPA's failure to comply with the four-month rule have treated such compliance as a nondiscretionary duty. See p. 14, supra. This treatment is consistent with this Court's rulings in Train v. Natural Resources Defense Council and Union Elec- tric Co. v. EPA that the requirements of Section 11a) are mandatory in nature. See Train, 421 U.S. at 79-80; Union Electric Co. at 256. delay, once the interests of the states themselves F.2d at 501, n.11 (emphasis added). view program. Again, this is neither a result Congress intended a function for which the courts are best suited. What the courts are well-equipped to do is to decline, as the Fifth Circuit did in American Cyanamid, to become parties to EPA's deliberate policy of flouting the proce- dural requirements of the Clean Air Act. By bringing en- One wonders why EPA would support the First Circuit's mandamus remedy given its claim that it cannot meet the four-month deadline in any event. The courts have in certain cases recognized that there may be cases in which it is simply impossible for EPA to meet a statutory deadline. However, the courts have stressed that: fact inconsistent with the Act. That means that if the company would not be in violation if E pending SIP revision, EPA must first act to review of that revision before bringing an enforcement action. of Appeals for the First Circuit be reversed and that this case be remanded with instructions that an order be en- tered affirming the judgment of the District Court. Respectfully submitted, TuHeopore L. GARRETT Counsel f Record Sonya D. WINNER Covincton & BURLING 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, D.C. 20044 (202) 662-5398 Counsel for Petitioner APPENDIX la APPENDIX Pertinent provisions of the Clean Air Act, 42 U.S.C. § 7401, et al., are as follows: § 7407. Air quality control regions (a) Responsibility of each State for air quality; submis- sion of implementation plan Each State shall have the primary responsibility for as- suring air quality within the entire geographic area com- prising such State by submitting an implementation plan for such State which will specify the manner in which national primary and secondary ambient air quality stand- ards will be achieved and maintained within each air qual- ity control region in such State. § 7410. State implementation plans for national primary and secondary ambient air quality standards (a) Adoption of plan by State; submission to Adminis- trator; content of plan; revision; new sources; in- direct source review program; supplemental or intermittent control systems (1) Each State shall, after reasonable notice and public hearings, adopt and submit to the Administrator, within nine months after the promulgation of a national primary ambient air quality standard (or any revision thereof) un- der section 7409 of this title for any air pollutant, a plan which provides for implementation, maintenance, and en- forcement of such primary standard in each air quality control region (or portion thereof) within such State. In addition, such State shall adopt and submit to the Ad- ministrator (either as a part of a plan submitted under the preceding sentence or separately) within nine months after the promulgation of a national ambient air quality secondary standard (or revision thereof), a plan which pro- vides for implementation, maintenance, and enforcement of such secondary standard in each air quality control re- 2a gion (or portion thereof) within such State. Unless a sep- arate public hearing is provided, each State shall consider its plan implementing such secondary standard at the hear- ing required by the first sentence of this paragraph. (2) The Administrator shall, within four months after the date required for submission of a plan under paragraph (1), approve or disapprove such plan, or any portion thereof. The Administrator shall approve such plan, or any portion thereof, if he determines that it was adopted after reasonable notice and hearing and that— (A) except as may be provided in subparagraph (Ii) in the case of a plan implementing a national primary am- bient air quality standard, it provides for the attainment of such primary standard as expeditiously as practicable but (subject to subsection (e) of this section) in no case later than three years from the date of approval of such plan (or any revision thereof to take account of a revised primary standard); and (ii) in the case of a plan imple- menting a national secondary ambient air quality standard, it specifies a reasonable time at which such secondary standard will be attained; (B) it includes emission limitations, schedules, and time- tables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary or secondary standard, in- cluding, but not limited to, transportation controls, air quality maintenance plans, and preconstruction review of direct sources of air pollution as provided in subparagraph (D). (C) it ineludes provision for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on am- bient air quality and, (ii) upon request, make such data available to the Administrator; (D) it includes a program to provide for the enforcement of emission limitations and regulation of the modification, 3a construction, and operation of any stationary source, in- cluding a permit program as required in parts C and D and a permit or equivalent program for any major emitting facility, within such region as necessary to assure (i) that national ambient air quality standards are achieved and maintained, and (ii) a procedure, meeting the requirements of paragraph (4), for review (prior to construction or mod- ification) of the location of new sources to which a stand- ard of performance will apply: (3XA) The Administrator shall approve any revision of an implementation plan applicable to an air quality control region if he determines that it meets the requirements of paragraph (2) and has been adopted by the State after reasonable notice and public hearings. (B) As soon as practicable, the Administrator shall, con- sistent with the purposes of this chapter and the Energy Supply and Environmental Coordinator Act of 1974 [15 U.S.C. 791 et seq.], review each State’s applicable imple- mentation plans and report to the State on whether such plans can be revised in relation to fuel burning stationary sources (or persons supplying fuel to such sources) without interfering with the attainment and maintenance of any national ambient air quality standard within the period permitted in this section. If the Administrator determines that any such plan can be revised, he shall notify the State that a plan revision which is submitted by the State shall, after public notice and opportunity for public hearing, be approved by the Administrator if the revision relates only to fuel burning stationary sources (or persons supplying fuel to such sources), and the plan as revised complies with paragraph (2) of this subsection. The Administrator shall approve or disapprove any revision no later than three months after its submission. (C) Neither the State, in the case of a plan (or portion thereof) approved under this subsection, nor the Admin- istrator, in the case of a plan (or portion thereof) pro- 4a mulgated under subsection (c) of this section, shall be required to revise an applicable implementation plan be- cause one or more exemptions under section 7418 of this title (relating to Federal facilities), enforcement orders un- der section 7413(d) of this title, suspensions under sub- section (f) or (g) of this section (relating to temporary energy or economic authority), orders under section 7419 of this title (relating to primary nonferrous smelters), or extensions of compliance in decrees entered under section 7413(e) of this title (relating to iron- and steel-producing operations) have been granted, if such plan would have met the requirements of this section if no such exemptions, orders, or extensions had been granted. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0670%3A08. Public record. Not legal advice.