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

Supreme Court, U.S.

» |. FILED

No. 89.369 > IAN 8 B88

‘ta

IN THE _ \ comer

Supreme Court of the United State

OCTOBER TERM, 1989

GENERAL MOTORS CORPORATION,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF FOR THE DEPARTMENT OF ENVIRONMENTAL

QUALITY OF THE STATE OF LOUISIANA AS

AMICUS CURIAE IN SUPPORT OF THE PETITIONER

ROLAND T. HUSON III

General Counsel

(Counsel of Record)

ANN C. Coco

Deputy General Counsel

LOUISIANA DEPARTMENT OF

ENVIRON MENTAL QUALITY

625 North 4th Street

Baton Rouge, Louisiana 70802

(504) 342-1240

SS

WILSON - Epes PrinTtiNG Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether the Clean Air Act, which requires the En-

vironmental Protection Agency (“EPA”) to approve or

disapprove a State Implementation Plan (“SIP”) within

four months of a state’s submission of the SIP to EPA,

imposes a similar deadiine on EPA’s consideration of a

state’s proposed revision of that SIP.

2. Whether EPA, having failed either to approve or

disapprove a state’s revision to its SIP within four

months, may bring an enforcement action on the original

SIP before approving or disapproving the revision or may

collect penalties relating to the period of its delay.

(i)

TABLE OF CONTENTS

; Page

| QUESTIONS PRESENTED o0ooooo....sssssscssssssssssssssssssssse i

| TABLE OF AUTHORITIES... iv

INTEREST OF THE AMICUS .............. 1

; ES STS 2

SUMMARY OF ARGUMENT 7

MI i 9

MONTHS ........... . 9

II. WHEN EPA FAILS EITHER TO APPROVE

OR DISAPPROVE A STATE’S SIP REVISION

WITHIN FOUR MONTHS, IT IS BARRED

FROM BRINGING AN ENFORCEMENT AC-

TION BEFORE ACTING ON THE PRO-

POSED REVISION AND MAY NOT COLLECT

PENALTIES RELATING TO THE PERIOD

| Ge ED eit etcccctiiiniien 14

A. A Temporary Limitation On EPA’s Author-

ity To Enforce An Original SIP, When It

Has Failed To Act On A Pending SIP Revi-

sion, Comports With Both The Act’s Struc-

ture And Legislative Purpose 15

B. Neither The United States Nor The Court

Below Provides Any Persuasive Reasons For

Not Imposing A Temporary Ban On EPA’s

Enforcement Authority ‘ 18

CONCLUSION ........ ee 24

iv

TABLE OF AUTHORITIES

CASES: Page

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

ENR ree eee aS nO ee 10, 18, 16

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

RE I. SII cnsccsscnnsosnbiiitisininiitaticaniiaiiditihad sii size cat 11

Bowen v. Georgetown University Hospital, 109

& fF & Beeson eee 10

Brock v. Pierce County, 476 U.S. 253 (1986) ........ 17, 18

Concerned Citizens of Bridesburg v. EPA, 836

a rr 11,13

Council of Commuter Organizations v. Gorsuch,

683 F.2d 648 (2d Cir. 1982) 00.00... 10

Council of Commuter Organizations v. Thomas,

799 F.2d 879 (2d Cir. 1986) 0.0.2... 10

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

a aii 10, 18, 20, 21

General Motors Corp. v. EPA, 871 F.2d 495 (5th

3 FS SESE Ne a SN eee 10

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)........ 10

Public Employees Retirement System v. Betts, 109

fy MERE REESE Dene Scene 'S 9

Train v. Natural Resources Defense Council, Inc.,

Ge Pe Oe I a ooccncciniasctentacncnsaseiectiecasaaetincon! 8, 11, 16

Union Electric Co. v. EPA, 427 U.S. 246 (1976)... 2,16

United States v. Alcan Foil Products, No. 88-6300

eee 10, 20, 21

United States v. National Steel Corp., 767 F.2d

EES Ee re 10

STATUTES:

Clean Air Act, 42 U.S.C. §§ 7401 et seq. (1982)... 1

42 U.S.C. § 7407(a) (1982) 2. 2,11, 15

| 2,11

42 U.S.C. § 7409(a) (1) (1982) 00 12

I 2

42 U.S.C. $ 7410(a) (1) (1982)... 2, 12,19

42 U.S.C. § 7410(a) (2) (1982)... 2, 3, 8, 9, 11, 12

42 U.S.C. § 7410(a) (3) (A) (1982) .......... 3, 8, 10, 11

42 U.S.C. § 7410(d) (1982) 2. eeeees 17

a

v

TABLE OF AUTHORITIES—Continued

Page

ea 8, 14, 21

42 U.S.C. § 7418(a) (1982) ......000000 17

42 U.S.C. § 7413 (d) (2) (1982) 2.000. 12

42 U.S.C. § 7502(a) (2) (1982) 0000. 4

42 U.S.C. § 7604 (1982) 2.00002. 20

42 U.S.C. § 7604(a) (2) (1982) 2000. 7

REGULATIONS:

IE A 19

ee E _, 4

44 Fed. Reg. 8220 (1979) 2.0.0.0... .ccccccccceccceceeeeeeeeeeees 3

45 Fed. Reg. 61,293 (1980) 0.0.0.0... 4

45 Fed. Reg. 61,295 (1980) 2.0.0.0... 4

46 Fed. Reg. 51,886 (1981) 0.000000. 4

51 Fed. Reg. 48,394 (1986) 2.0.0.0... eee 5

51 Fed. Reg. 48,395 (1986) 0.0.0.0... eee ceeeeeeceeeeee 5

I iin ctcsnccnsncsnsnscenssinimatentinne 23

LEGISLATIVE MATERIALS:

S. Rep. No. 1196, 91st Cong., 2d Sess. 21 (1970),

reprinted in 1 A Legislative History of the

Clean Air Act Amendments of 1970 (“Legisla-

tive History’) 397 (1974) ...........cccccceeeececeeeeeeeeee 12

116 Cong. Rec. 33,116-17 (1970), reprinted in 1

Legislative History S86 ........................-..ccc<...ce--- 12

116 Cong. Rec. 42,382 (1970), reprinted in 1 Leg-

CO 16

116 Cong. Rec. 42,520 (1970), reprinted in 1 Leg-

NR RESEINER Gs Oe. nee 16

H.R. 99, 101st Cong., Ist Sess. § 103 (1989)........ 23

H.R. 2328, 101st Cong., Ist Sess. § 401 (1989)... 24

H.R. 3030, 101st Cong., 1st Sess. § 101 (a) (1)

REET ES TER eae s ee re ea MME Ue NE Ts aD 23, 24

S. 1490, 101st Cong., Ist Sess. §101(a) (1989).... 24

MISCELLANEOUS AUTHORITIES:

1 W. Rodgers, Environmental Law: Air And

Water §3.9 (1986) ...... caidiahinteiidintiidesiaduscinalna 23

IN THE

Siyreme Cut of the Wuited States

OCTOBER TERM, 1989

No. 89-369

GENERAL MOTORS CORPORATION,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF FOR THE DEPARTMENT OF ENVIRONMENTAL

QUALITY OF THE STATE OF LOUISIANA AS

AMICUS CURIAE IN SUPPORT OF THE PETITIONER

INTEREST OF THE AMICUS?

The State of Louisiana, like all other states, has a major

role in the regulation of air pollution under the Clean Air

Act (“Act”), 42 U.S.C. $§ 7401 et seg. (1982). Under the

Act, each state has primary responsibility for devising,

administering, and, if necessary, revising a State Imple-

mentation Plan (“SIP”) to achieve the National Ambient

Air Quality Standards that the Environmental Protec-

tion Agency (“EPA”) has established. In Louisiana,

1 Counsel for both parties have consented to the filing of this

brief. Their consents have been filed with the Clerk of this Court.

2

that responsibility rests with the Department of Environ-

mental Quality (“DEQ”). Both original SIPs and SIP

revisions are subject to EPA approval. This case raises

important questions concerning the respective roles of

the federal government and the states in the adoption of

SIPs: namely, whether EPA must review SIP revisions

within the four-month period specified in the Act for

review of original SIPs, and what consequences flow from

EPA’s failure to meet that deadline. The State of Louisi-

ana, through DEQ, has a significant and immediate inter-

est in the resolution of these issues.

STATEMENT

1. The Clean Air Act is a comprehensive statute gov-

erning the control of air pollution. Congress amended the

Act in 1970, and again in 1977, to create an important

partnership between the federal government and the in-

dividual states in setting and achieving National Am-

bient Air Quality Standards throughout the country. The

division of authority under the Act is well-defined: the

federal government, through EPA, promulgates National

Ambient Air Quality Standards on a_ pollutant-by-

pollutant basis; in turn, the states—through agencies such

as DEQ—adopt State Implementation Plans (“SIPs’’)

to ensure achievement of those standards within their

jurisdictions. See 42 U.S.C. §§ 7409, 7410.

The Act expressly gives each state “primary respon-

sibility” for ensuring air quality within its borders. 42

U.S.C. § 7407(a). The Act empowers each state to de-

termine what combination of regulatory requirements will

best ensure the attainment of National Ambient Air

Quality Standards within its jurisdiction and to design

its SIP in a manner that is consistent with the state’s

political, economic, and social policy concerns. See, e.g.,

Union Electric Co. v. EPA, 427 U.S. 246, 266-67 (1976).

Although the state must submit its SIP to EPA for re-

view and approval (42 U.S.C. § 7410(a) (1), (2)), the

3

Act prohibits EPA from rejecting any SIP that satisfies

the Act’s substantive and procedural requirements. 42

U.S.C. § 7410(a) (2); see Train v. Natural Resources

Defense Council, Inc., 421 U.S. 60, 79 (1975) (noting

that EPA “is required to approve a state plan” that will

result in the attainment of the National Ambient Air

Quality Standards and that meets the other statutory re-

quirements for evaluation of a proposed SIP) (emphasis

in original). The Act, moreover, requires EPA either to

approve or disapprove a SIP within four months of its

submission. 42 U.S.C. § 7410(a)(2). Once EPA ap-

proves the SIP, both the state and the federal govern-

ment have authority to enforce it. The state’s enforce-

ment authority derives from its adoption of the SIP

through the state’s regulatory and legislative process;

EPA’s authority derives from the Act itself. See 42

U.S.C. § 7413.

In enacting the Act, Congress recognized that each

state requires the freedom to revise its SIP from time

to time to reflect new technology, changes in local needs,

or other developments. Consequently, the Act permits a

state to revise its SIP at any time it deems appropriate.

See 42 U.S.C. § 7410(a)(3)(A). As with the original

SIP, the Act requires the state to submit any SIP revi-

sion to EPA for approval; EPA, however, may not reject

a SIP revision if it will result in the attainment of the

applicable National Ambient Air Quality Standards and

if it meets the other requirements applicable to the eval-

uation of original SIPs. 42 U.S.C. § 7410(a) (3) (A);

see id. § 7410(a) (2).

2. General Motors owns and operates an automobile

assembly plant in Framingham, Massachusetts that, as a

product of its painting operations, emits volatile organic

compounds (“VOCs”). In February 1979, EPA promul-

gated the National Ambient Air Quality Standards for

ozone. 44 Fed. Reg. 8220 (1979). Later that year, Mas-

sachusetts adopted a proposed SIP limiting VOC emis-

sions from sources in the Framingham, Massachusetts

4

area (310 CMR § 7.18(7) (1979)), including the paint-

ing operations at General Motors’ plant. The SIP, which

EPA approved in 1980 (45 Fed. Reg. 61,293, 61,295

(1980)), required compliance by December 31, 1985—

two years before the Act’s December 31, 1987 final com- —

pliance deadline for attainment of the national ozone

standards. See 42 U.S.C. § 7502(a) (2).

On October 20, 1981, EPA published a policy statement

advocating deferral of the ozone compliance dates for

automobile painting operations. 46 Fed. Reg. 51,386-88

(1981). The policy statement noted that the automobile

industry was developing new technology to reduce VOC

emissions. Accordingly, EPA concluded that allowing a

deferral of compliance would give the industry needed

time to develop a more efficient and cost-effe-tive tech-

nology. To this end, the policy statement provided that

EPA would approve state-submitted revisions of SIPs

giving auto makers until 1986 or 1987 to achieve final

compliance with the emission limits for painting opera-

tions in order to allow tor further development of coating

technology—provided that the extension did not impact

the states’ ability to obtain the ambient air quality

standards.

In 1984, pursuant to this policy statement, General

Motors submitted to Massachusetts a timely request for

an extension of the compliance deadline for its Framing-

ham painting operations until December 31, 1987. Gen-

eral Motors based this request on its proposed installa-

tion of abatement controls at its then-existing painting

facility. Subsequently, General Motors decided to close

its existing painting facility and replace it with a new

technologically-advanced system designed to achieve sub-

stantially lower VOC emissions. On June 7, 1985, Gen-

eral Motors informed Massachusetts of its revised plans

and reiterated its request for an extension of the SIP

compliance deadline to December 31, 1987. Following a

public hearing, which an EPA representative attended,

Massachusetts revised its SIP to extend the applicable

5

compliance deadline to August 31, 1987, a twenty-month

extension of the initial state deadline but still several

months short of the Act’s attainment deadline for ozone.

Massachusetts submitted the SIP revision to EPA for ap-

proval on December 30, 1985. Pet. App. 6a; Supp. Pet.

App. SA-3.

For 33 months, EPA took no final action to approve or

disapprove Massachusetts’ SIP revision; the compliance

deadlines for both the original SIP and SIP revision

passed without final EPA action.’ In the interim, Gen-

eral Motors proceeded with its state-approved compliance

strategy. It closed the old Framingham painting facility

on schedule and spent over $200 million on the construc-

tion of a new facility, using a more effective and envir-

onmentally sound painting system. Finally, on Septem-

ber 16, 1988, EPA disapproved the proposed SIP revi-

sion. Pet. App. 8a.

3. On August 14, 1986, prior to taking final action on

the proposed SIP revision, EPA issued a Notice of Vio-

lation to General Motors, asserting that the Framingham

painting facility was in violation of Massachusetts’ orig-

inal SIP. Supp. Pet. App. SA-4. Thereafter, on August

17, 1987, nearly 20 months after Massachusetts submitted

its proposed SIP revision to EPA but still prior to any

final action on that revision, EPA filed its complaint in

federal district court in Massachusetts. EPA sought

civil penalties for the violation of the 1985 deadline in

the original SIP.’

20On December 2, 1986, EPA issued a Notice of Proposed Rule-

making, stating that it was considering disapproval of the revision.

51 Fed. Reg. 43,394 (1986). It reasoned that “[e)xtensions of the

December 31, 1985 date should instead be obtained through an

enforcement mechanism,” id. at 43,395, ignoring the fact that the

entire purpose of the revision was to change the 1985 compliance

deadline and thereby preclude its enforcement. General Motors and

Massachusetts both filed comments in opposition to the proposed

disapproval.

3In addition, EPA sought injunctive relief even though General

Motors had permanently closed the old Framingham paint shop over

a month earlier. EPA later withdrew its request for such relief.

6

4. On May 16, 1988, the district court granted sum-

mary judgment to General Motors. The court held that

the Act required EPA to act upon Massachusetts’ proposed

SIP revision within four months and that EPA, having

failed to do so, was precluded from enforcing the old

SIP until it made a decision on the SIP revision.

The district court found that the application of the

four-month limitation to EPA’s review of SIP revisions

derived support from the “struc.ure” of the statute,

which provides for “a cooperative venture in which fed-

eral authorities prescribe long-term national standards

but allow each state, within limits, to determine the best

way to reach them.” Supp. Pet. App. SA-4-5. It further

found that the application of a four-month SIP review

period was appropriate on policy grounds as well. First,

the court noted that “EPA always holds the ultimate

trump card” because “it may at an[y] time during or

after the allowed four-month period reject the proposal

and invoke enforcement proceedings under the original

SIP.” Jd. at SA-6. Second, the court found that “it

strains credulity that truly important or controversial

SIP revisions cannot be effectively identified early on in

the process and scheduled for expedited review.” Jd.

Finally, the court noted that a period longer than four

months “would leave both the states and the affected

industries in an unjustifiable state of limbo.” Jd. The

states “would be unable to act to balance dictated na-

tional priorities with the interests of its citizens and

industries,” and the industries would face the dilemma

of “ceasing operations now, or possibly being forced out

of business by heavy fines later.” Jd.

The court also addressed the ramifications of EPA’s

failure to meet the four-month deadline. It held that

where, as here, EPA does not render a decision on a pro-

posed SIP revision within four months, it is “prohibited

from bringing or continuing enforcement proceedings un-

der the original SIP until final action is taken.” Supp.

Pet. App. SA-7.

7

5. EPA appealed the district court’s order.’ On June

7, 1989, the First Circuit reversed the district court and

remanded the case for further proceedings. It agreed

with the district court that the Act requires EPA to re-

view SIP revisions within four months. Pet. App. 9a-12a.

It held, however, that EPA may still bring an enforce-

ment action and collect penalties notwithstanding its

failure to act on a proposed revision within that four-

month period. The court acknowledged that “Congress

clearly was concerned with preserving the states’ ability

to tailor SIPs to local needs and conditions,” id. at 11a,

and that Congress did not intend “the states’ legitimate

policy choices to be held hostage to the EPA’s schedule.”

Id. at 12a. The court nonetheless held that the district

court should not have dismissed EPA’s enforcement ac-

tion. Jd. at 12a-18a. Rather, the court concluded that,

when EPA fails to comply with the four-month period, a

“twofold” remedy is available: (1) the affected company

may file suit under Section 304(a)(2) of the Act to

compel EPA to act, 42 U.S.C. § 7604(a)(2), or (2) at

the penalty stage of an enforcement suit, the district

court may take into account EPA’s delay, and the prej-

udice that the company suffered as a result, in assessing

penalties. Pet. App. 14a-15a. The court noted that the

district court’s “power to adjust the penalties” will give

EPA “the necessary incentive to act without unreason-

able delay.” Jd. at 15a-16a.

SUMMARY OF ARGUMENT

I. Under the Clean Air Act, EPA has only four

months to approve or disapprove a state’s revision of its

SIP. This conclusion follows from both the language and

structure of the Act. Section 110(a) (2), which governs

original SIPs, explicitly provides for a four-month re-

*EPA filed its opening brief on September 16, 1988, the same

day that it published its decision disapproving Massachusetts’ pro-

posed SIP revision.

4

8

view period. 42 U.S.C. § 7410(a) (2). Section 110(a)

(3)(A), which governs SIP revisions, specifically incor-

porates “the requirements” of Section 110(a)(2). 42

U.S.C. § 7410(a) (3) (A). Not surprisingly, every court

of appeals to address the issue has concluded that EPA

must act on SIP revisions within four months. These

courts, like the court below, have so held because a con-

trary ruling would be inconsistent with the statutory

scheme and would have grave policy implications. Ab-

sent a four-month rule, EPA would have no incentive to

render a timely decision regarding SIP revisions. Con-

trary to Congress’ intent to give states a primary role in

the attainment of air quality within their borders, EPA

could essentially exercise a “pocket veto” over a state’s

proposal simply by refusing to take action on the SIP

revision.

II. Having correctly concluded that the Act requires

EPA to act on a SIP revision within four months, the

court below effectively nullified that limitation by holding

that EPA can still take enforcement action based on the

original SIP, and can still collect noncompliance penal-

ties, even though it fails to adhere to that statutory

period. The court below thus refused to adopt a rule

imposing a temporary enforcement ban that would pre-

clude EPA from enforcing the original SIP during the

pendency of EPA’s delay in acting on a SIP revision. It

declined to do so even though such a rule properly ac-

commodates the federal-state partnership that Congress

created in the Act and effectively advances the Act’s pur-

poses of achieving air quality.

There is no merit in any of the reasons advanced

against such a temporary enforcement ban. A _ tem-

porary ban would not, as the United States has sug-

gested, encourage states and industry to submit last-

minute SIP revisions to thwart EPA’s enforcement au-

thority. Moreover, a less severe remedy would be inade-

quate to effectuate the Act’s purposes. Contrary to the

reasoning of the court below, industries do not have éf-

9

fective alternative means of addressing agency delay in

the review of SIP revisions that the states deem neces-

sary to achieving air quality within their boundaries.

Finally, a temporary enforcement ban is a reasonable

consequence of EPA’s failure to meet that four-month

deadline. Congress explicitly selected that deadline, and

EPA is not free to ignore it with impunity.

ARGUMENT

I. THE CLEAN AIR ACT REQUIRES EPA TO ACT ON

SIP REVISIONS WITHIN FOUR MONTHS

In defending the First Circuit’s judgment, the United

States makes the threshold argument that the four-

month time period applicable to original SIPs is not

applicable to SIP revisions. U.S. Opp. Cert. 8-9. Ree-

ognizing that it did not prevail on this point below, the

United States advances this argument “as an alterna-

tive ground for upholding the court of appeals’ judg-

ment.” U.S. Opp. Cert. 8 n.1. Both courts below, how-

ever, properly rejected this argument. An analysis of

the Act’s language, structure, and underlying policies

amply demonstrates that Congress intended the four-

month period to apply to both original SIPs and SIP

revisions.

In interpreting a statute, this Court’s analysis must

“begin, as always, with the language of the statute it-

self.” Public Employees Retirement System v. Betts, 109

S. Ct. 2854, 2865 (1989). Section 110(a)(2) of the

Act requires EPA to approve, within four months, any

SIP that provides for the attainment of the appropriate

National Ambient Air Quality Standards and that ful-

fills certain technical requirements. 42 U.S.C. § 7410( a)

(2). Anticipating that the states would have to revise

these SIPs periodically, Congress further provided, in

Section 110(a)(3)(A) of the Act, that the Administra-

tor of EPA “shall approve any revision of an implemen-

tation plan applicable to an air quality control region

if he determines that it meets the requirements of

[$ 110(a)(2)] and has been adopted by the State after

10

reasonable notice and public hearings.” 42 U.S.C. § 7410

(a) (3) (A) (emphasis added) .*

Although Section 110(a)(3)(A), unlike Section 110

(a) (2), does not contain an express deadline for EPA’s

approval or disapproval of a proposed SIP revision, its

incorporation of both the substantive and procedural re-

quirements of Section 110(a)(2) reflects that Congress

intended the four-month limitation to apply to SIP re-

visions as well. Not surprisingly, in addition to the court

below, the four other courts of appeals that have

faced the question have agreed that the four-month lim-

itation applies to SIP revisions. See 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 n.2 (2d Cir. 1982); Council of Commuter Organiza-

tions v. Thomas, 799 F.2d 879, 888 (2d Cir. 1986):

American Cyanamid Co. v. EPA, 810 F.2d 493, 495 (5th

Cir. 1987) ; General Motors Corp. v. EPA, 871 F.2d 495,

498 (5th Cir. 1989); United States v. Alcan Foil Prod-

ucts, No. 88-6300, slip op. at 8 (6th Cir. Nov. 21, 1989)."

5 The court below correctly held that EPA is not entitled to defer-

ence in its interpretation of these statutory provisions. See Pet.

App. lla; accord United States v. Alcan Foil Products, No. 88-6300,

slip op. at 8 (6th Cir. Nov. 21, 1989). This Court has made clear

that where, as here, the agency’s interpretation of a statute in-

volves a pure question of law, rather than the application of law to

facts, it will not accord the agency’s interpretation any particular

deference. INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987);

cf. Bowen v. Georgetown University Hosp., 109 S. Ct. 468, 473

(1988) (refusing to give deference to agency litigation positions

that are “wholly unsupported by regulations, rulings or adminis-

trative practice”).

*In its brief in the court below, the United States placed great

weight on dicta in a Sixth Circuit opinion, United States v. Na-

tional Steel Corp., 767 F.2d 1176, 1182-83 n.1 (6th Cir. 1985), in

which the court suggested that the four-month limitation does not

apply to SIP revisions. The Sixth Circuit, however, recently dis-

avowed that dicta and held—consistent with all other circuits that

have faced this issue—that EPA must act on SIP revisions within

four months. See United States v. Alcan Foil Products, slip op. at 8.

11

This interpretation fully comports with the structure

of the Act. In the Act, Congress established a federal-

state cooperative program that requires EPA to set Na-

tional Ambient Air Quality Standards for particular pol-

lutants. 42 U.S.C. § 7409. The Act, however, vests the

states with “the primary responsibility for assuring air

quality within the entire geographic area comprising

such State.” 42 U.S.C. § 7407(a). It gives them wide

latitude to “specify the manner in which national pri-

mary and secondary ambient air quality standards will

be achieved” within their borders. 42 U.S.C. § 7407(a);

see Train v. Natural Resources Defense Council, Inc.,

421 U.S. at 79. It thus ensures, as the court below noted

(Pet. App. 4a), that the states can adopt particular air

regulations that address local needs, current technology,

and other developments. See, e.g., Concerned Citizens of

Bridesburg v. EPA, 836 F.2d 777, 789 (3d Cir. 1987);

Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1036

(7th Cir. 1984).

Consistent with the states’ primary role in developing

plans to achieve air quality, Congress carefully limited

EPA’s corresponding role in this process. Of course, the

Act does require EPA to review all SIPs. 42 U.S.C.

$$ 7410(a)(2) & 7410(a)(3)(A). It -makes equally

clear, however, that EPA must approve a proposed SIP

or SIP revision if it satisfies the objective requirements

of Section 110(a) (2) of the Act. 42 U.S.C. §§ 7410(a)

(2) & 7410(a) (3) (A): see Train v. Natural Resources

Defense Council, Inc., 421 U.S. at 79; Concerned Citizens

of Bridesburg v. EPA, 836 F.2d at 781. Because Con-

gress did not assign EPA a broad policy-making role

in the design of SIPs, it had no need to give EPA a

lengthy time period for SIP review. A four-month lim-

itation on EPA’s review process is, therefore, entirely

consistent with the limited and carefully-circumscribed

role that EPA plays in the development and approval

of SIPs.

12

A four-month deadline for approval of SIP revisions

is likewise consistent with one of the Act’s recurrent

themes: the need for speedy achievement of National

Ambient Air Quality Standards. Congress made abun-

dantly clear its intent that the states, along with EPA,

must put SIPs into place as quickly as possible and im-

plement them with dispatch. Thus, Congress gave EPA

only 120 days to promulgate National Ambient Air Qual-

ity Standards, 42 U.S.C. § 7409(a)(1); it gave states

only nine months thereafter to submit their SIPs for

approval, id. § 7410(a)(1); and it gave EPA only four

months after such submissions to approve those plans, id.

§ 7410(a) (2). Moreover, it gave EPA only 90 days to

approve or disapprove a state’s order delaying the date

by which a source must comply with its SIP. 42 U.S.C.

§ 7413(d)(2). To conclude, as the United States has

argued, U.S. Opp. Cert. 9, that a four-month limitation

on the approval of SIP revisions is “unwarranted” would

plainly contravene Congress’ intent to ensure prompt

attainment of air quality through effective state plans.

See S. Rep. No. 1196, 91st Cong., 2d Sess. 21 (1970),

reprinted in 1 A Legislative History of the Clean Air

Act Amendments of 1970 (“Legislative History”), at 414

(1974) (“[i]n order to insure achievement of air quality

necessary to protect the health of persons within the

period specified in the bill, time constraints would be

placed on the [{Administrator’s] review and approval

authority” ).’

The court of appeals’ determination that EPA must act

on a SIP revision within four months properly effectuates

congressional intent and the important policies under-

7 See also 116 Cong. Rec. 33,116-17 (Sept. 22, 1970), reprinted in

1 Legislative History, at 385 (1974) (statement of Sen. Cooper )

(“fo]ne of the principal difficulties for the existing law has been

the lack of a decisive enforcement authority and the bill before

the Senate seeks to streamline and expedite this authority so that

procedural delays in enforcement activities do not frustrate the

clear intent of the... Act’).

13

lying the Act. Absent a four-month limitation on EPA’s

review of SIP revisions, EPA would remain free to delay

action on those revisions and thus to hold “the states’

legitimate policy choices . . . hostage to the EPA’s sched-

ule.” Pet. App. 12a. Even though a state has proposed

a SIP revision that it deems appropriate to effectuate

both the Act’s purposes and the state’s own local inter-

ests, EPA can—for any reason or for no reason at all—

exercise a “‘pocket veto” over a state’s determination of

the proper means to control air emissions merely by de-

laying action on the SIP revision. This pocket veto ex-

pands EPA’s review power far beyond its statutory au-

thority by freeing EPA from the standards that Con-

gress imposed under Section 110(a) (3) (A). Cf. Ameri-

can Cyanamid Co. v. EPA, 810 F.2d at 495 (noting that

EPA “must” approve plans and revisions that satisfy the

statutory requirements); Duquesne Light Co. v. EPA

698 F.2d at 471 (noting that EPA is required to approve

plans that are adopted after reasonable notice and hear-

ing if they will attain and maintain National Ambient

Air Quality Standards). See also Pet. App. 10a (discuss-

ing “Congress’ decision to limit the EPA’s discretion to

reject a state plan” and holding that “the Act gives the

Agency no more discretion to reject a SIP revision than

to reject an original SIP”). Certainly, Congress did not

intend to grant EPA such a pocket veto and to permit

e- to usurp a. states’ role as the principal architects

eir air quality programs. See Conc iti

Bridesburg v. EPA, 836 F.2d at 781. peer og fd

The threat of lengthy delay, moreover, can only un-

dermine the achievement of better air quality. States

have the responsibility to develop new and innovative

emission control strategies to reduce air pollutant emis-

sions. To encourage industry to attempt such develop-

ment, states must be able to revise their air plans to

permit the new technology and assure industries that,

within a relatively short period of time, EPA will make

a final decision on whether the revised plan meets the

14

statutory standards. The absence of a four-month rule

would, therefore, discourage industries from taking these

innovative approaches, thereby increasing emissions. It

would require them to factor the unnecessary uncertainty

associated with EPA delay into important decisions about

whether to install emission control equipment, what kind

of control technology to adopt, and when to install that

technology. For example, in the present case, Massachu-

setts granted General Motors a 20-month extension of

the compliance deadline to allow General Motors to de-

velop a new technology to reduce VOC emissions. Had

General Motors waited for EPA to act on the proposed

revision before investing in this new technology, Massa-

chusetts’ goal of reducing emissions would have been

seriously undermined.

The absence of a four-month rule would also deprive

the states of vital enforcement powers. Under the Act,

the states are the primary enforcement authorities of

clean air regulations. See 42 U.S.C. § 7413. When a

state revises its SIP, its old SIP may no longer be a part

of its regulations. Additionally, in the absence of EPA

approval, the state may be reluctant to bring an enforce-

ment action to compel a company to comply with its new

SIP.

In short, the Act’s language, structure, and underlying

policies strongly support the application of the four-month

rule to SIP revisions. For this reason, the Court should

affirm this aspect of the decision below.

II. WHEN EPA FAILS EITHER TO APPROVE OR DIS-

APPROVE A STATE’S SIP REVISION WITHIN

FOUR MONTHS, IT IS BARRED FROM BRINGING

AN ENFORCEMENT ACTION BEFORE ACTING

ON THE PROPOSED REVISION AND MAY NOT

COLLECT PENALTIES RELATING TO THE PE-

RIOD OF ITS DELAY

Although the court below correctly held that EPA must

act on proposed SIP revisions within four months, its con-

15

clusion that EPA’s failure to do so does not preclude it

from enforcing the original SIP during the period of de-

lay renders the time limitation meaningless. The decision

below replaces the strong incentive of an -enforcement

bar with remedies that provide EPA with far less moti-

vation to act promptly on a state’s proposed SIP revision.

In so doing, the decision improperly ignores the states’

“primary responsibility” for assuring air quality within

their borders, see 42 U.S.C. § 7407(a), and, accordingly,

their vital interests in adopting timely and responsive

SIP revisions. Because this approach comports with nei-

ther the Act’s structure nor its underlying policies, and

because it undermines the critical role that the states

play under the Act, this Court should not approve it.

Rather, this Court should hold that EPA cannot enforce

existing SIP provisions or collect penalties for noncom-

pliance during the period of its delay, i.e., from the ex-

piration of the four-month review period until it acts on

a proposed SIP revision.

A. A Temporary Limitation On EPA’s Authority To

Enforce An Original SIP, When It Has Failed To

Act On A Pending SIP Revision, Comports With

Both The Act’s Structure And Legislative Purpose

Neither the language of the Act nor its legislative his-

tory answers the second issue in this case: whether, and

to what extent, EPA’s failure to act on a SIP revision

within four months deprives it of enforcement authority

during the pendency of its delay. Although the Act’s

language is silent on this issue, its structure provides

persuasive evidence that Congress did not intend to afford

EPA unfettered authority to take enforcement actions

that are at odds with the states’ authority to develop and

implement plans to achieve air quality.

This Court has recognized that EPA plays a coopera-

tive, but secondary, “role in the process of determining

and enforcing the specific, source-by-source emission lim-

itations” necessary to achieve National Ambient Air Qual-

16

ity Standards. Train v. Natural Resources Defense Coun-

cil, Inc., 421 U.S. at 79. Congress vested the states, not

EPA, with the authority to develop plans that best ad-

dress their local interests consistent with the national

goal of achieving air quality. Jd; Union Electric Co. v.

EPA, 427 U.S. at 266. Congress also contemplated that

the states, rather than EPA, would retain primary en-

forcement authority under their SIPs.* For these rea-

sons, “the interest of the state itself is deeply involved

in the required four month approval or disapproval of the

proposed revision.” American Cyanamid Co. v. EPA,

810 F.2d at 500.

When a state proposes a SIP revision, it does so be-

cause it has concluded that the interests of its residents

demand the revision. Under these circumstances, impos-

ing a temporary limitation on EPA’s power to enforce

a SIP that no longer meets a state’s interests plainly

comports with the cooperative federal-state relationship

that Congress established in the Act. This “bright-line”

rule, which the Fifth Circuit adopted in American

Cyanamid, provides the clearly-defined and effective in-

centive necessary to ensure that EPA acts promptly to

approve or disapprove a state’s proposed revision to its

SIP. Prompt action reduces uncertainty within state en-

vironmental agencies, and the industries that they regu-

late, as to the status of the states’ air programs and

minimizes the possibility that the states will be unable to

8 See 116 Cong. Rec. 42,520 (Dec. 18, 1970), reprinted in 1 Legis-

lative History, at 112 (statement of Rep. Staggers) (“[t)he

States on the other hand will have primary responsibility for the

enforcement of State plans and the emission limitations provided

for in those plans with regard to existing stationary sources”) ;

116 Cong. Rec. 42,382 (Dec. 18, 1970), reprinted in 1 Legislative

History, at 127 (statement of Sen. Muskie) (“[t]he Senate remains

convinced that most effective enforcement of standards would take

place on the State and local levels. It was here that the public

could participate most actively and bring the most effective pressure

to bear for clean air’).

17

take enforcement actions to ensure compliance with their

revised (and preferred) means of achieving air quality.

This limitation on EPA’s enforcement authority, more-

over, accommodates these important state interests with-

out sacrificing the Act’s goal of achieving air quality or

unduly compromising EPA’s enforcement powers. Pre-

cluding EPA from enforcing an original SIP between the

expiration of the four-month period and the date that it

either approves cr disapproves the SIP revixion—a period

that rests completely within EPA’s control—is neither

extreme nor unreasonable. This enforcement limitation

does not mean that the states can transform their revised

plans into “appiicable implementation plan[s]” without

EPA approval. See 42 U.S.C. § 7410(d). Nor does this

limitation in any way deprive EPA of its ability to en-

force the original SIP if it ultimately concludes that the

SIP revision does not satisfy the Act’s requirements; once

EPA reaches such a conclusion, it can freely enforce the

provisions of the original SIP. 42 U.S.C. § 7413(a). Al-

though EPA is unable to collect penalties for noncompli-

ance during the period that it delayed a decision on the

SIP revision, that result is merely the price of agency

delay. More importantly, that price provides the incen-

tive to avoid that delay in the future.®

* Contrary to the assertion of the United States, U.S. Opp. Cert.

13, an enforcement bar in the circumstances presented here is not

inconsistent with Brock v. Pierce County, 476 U.S. 253 (1986). In

Pierce County, this Court allowed the Secretary of Labor to recover

misused Comprehensive Employment and Training Act (‘CETA”)

funds notwithstanding the Secretary’s failure to make a determina-

tion, within the statutorily-mandated time period, that the funds

were misused. The party who had misused the funds sought a per-

manent ban of the Secretary’s ability to recover the funds, which

would have substantially undermined Congress’ intent to prevent the

misuse of CETA funds. The rule that is advanced here, by contrast,

only prevents enforcement of an original SIP during the period in

which EPA delays its decision on the SIP revision beyond four

months. EPA’s regulatory authority is thus left intact, while its

18

B. Neither The United States Nor The Court Below

Provides Any Persuasive Reasons For Not Imposing

A Temporary Ban On EPA’s Enforcement Authority

The United States and the court below make various

arguments to support their position that even a tempor-

ary ban on EPA’s enforcement authority during the pe-

riod that EPA fails to act on a SIP revision is improper.

These arguments are that such a ban (1) would invite

state-industry collusion in the submission of last-minute

SIP revisions to stave off EPA enforcement action; (2)

is unnecessary because of the availability of other meas-

ures to address agency delay; and (3) puts EPA in the

position of having to comply with a statutory deadline

that it lacks resources to meet. Those arguments do not

withstand scrutiny.

1. The United States maintains that a temporary en-

forcement ban will “encourage industries to propose last-

minute SIP revision proposals for the purpose of staying

EPA enforcement actions and postponing compliance with

SIP provisions.” U.S. Opp. Cert. 12. This argument is

all but frivolous.””

To begin with, the states, not industry, propose SIP

revisions. The United States’ argument therefore pre-

sumes, with no evidence or support, that states will act in

bad faith to propose revisions solely for the purpose of

undermining EPA’s enforcement authority. In other

enforcement authority is limited only to the extent that it fails to

act within the statutory approval period. In short, the approach

urged by DEQ reinforces Congress’ intent, whereas the posi-

tion of the defendant in Pierce County would have undermined that

intent.

1 EPA also asserts that the enforcement ban will give “noncom-

plying sources in States that propose revisions .. . unfair advan-

tage over those in other States... .” U.S. Opp. Cert. 12. EPA,

however, has the option to prevent such “advantage” by acting

within four months on the proposed revision. Thus, any advantage

is solely the result of EPA’s failure to follow the Act.

19

words, the United States argues that states will improp-

erly approve SIP revisions—regardless of whether such

revisions satisfy the states’ own interests—in order to

undermine enforcement of the Act. EPA cites nothing

to show that the states have engaged, or likely would

engage, in such behavior.

Moreover, EPA’s reference to “last-minute SIP revi-

sions” totally misperceives the states’ role in developing

such revisions. Under the Act, a state may not submit

“eleventh-hour” SIP revisions to EPA at a company’s be-

hest. The state must first comply with the Act’s mandate

that it provide reasonable notice of the SIP and hold

public hearings. 42 U.S.C. § 7410(a)(1); 40 C.F.R.

$ 51.102 (state must conduct one or more public hearings

and must provide 30-day notice to, inter alia, the public

“by prominent advertisement,” the Administrator, and

each local air pollution control agency that will be sig-

nificantly impacted). States must also comply with their

own statutes and regulatory procedures governing legis-

lation and rulemaking. The process of proposing SIP re-

visions is thus potentially lengthy and complicated—and

is wholly incompatible with hastily-concocted and improp-

erly-motivated SIP revisions. In addition, the mere sub-

mission of a proposed SIP revision will not automatically

“stay” EPA enforcement actions. Such actions will be

stayed or precluded only when, and only to the extent

that, EPA fails to approve or disapprove the SIP revision

within four months of its submission to EPA.

2. The court below and the United States further con-

tend that companies held hostage to unreasonable agency

delay have effective remedies short of a temporary pro-

tection from an EPA enforcement action. Pet. App. 14a;

U.S. Opp. Cert. 10. They suggest that companies have

two remedies: (1) a “company may at any time after

the end of the four-month period bring suit in the dis-

trict court under § 304(a)(2) of the Act to compel

agency action,” Pet. App. 14a; and (2) if the Section

20

304 remedy proves unavailing, the district court can

“eonsider the reasonableness of the Agency’s delay and

the prejudice, if any, suffered by the company” at the

penalty stage of a Section 113 proceeding, Pet. App.

15a; U.S. Opp. Cert. 10." This “twofold” remedy, how-

ever, is both unworkable and inconsistent with the Act’s

policies.

As the court below indicated, Pet. App. 14a, companies

undoubtedly can file actions to compel agency action under

Section 304 of the Act. 42 U.S.C. § 7604. A court, more-

over, can plainly “assess the Agency’s reasons for not com-

plying with the four-month time limit and take such action

as it deems reasonable” in the context of a Section 304

action. Pet. App. 14a. But attempting to prevent agency

delay with a suit to compel agency action under Section

304, at bottom, requires companies to divert valuable

resources to fund entirely preventable and thus need-

less litigation. A final judicial determination that EPA

has unduly delayed action, perhaps years after the sub-

mission of a SIP revision, would cost substantial time

and money and would do little to enhance either EPA’s

efficiency or the states’ interests in SIP adoption. More-

over, during the action, penalties could continue to ac-

crue. It is hardly surprising, therefore, that the Sixth

Circuit recently recognized that the remedy of a suit to

compel EPA to act “is not very effective.” United States

11 In so concluding, the court eliminated a third potential remedy

that the D.C. Circuit adopted in Duquesne Light Co. v. EPA, 698

F.2d 456. In that case, the court concluded that, in cases of agency

delay, the penalty should be held in abeyance pending the agency's

final decision on the proposed revision. If the revision is ultimately

rejected, penalties may be assessed retroactively, with interest, for

the entire period after the deadline. Jd. at 472. The court below

correctly determined that the D.C. Circuit’s approach is “extreme” ;

it “gives the Agency little or no incentive to conclude its review

within the statutory time limit because, no matter how long the

Agency procrastinates, it knows that it may collect full penalties if

the revision is ultimately rejected.” Pet. App. 12a-13a.

21

v. Alcan Foil Products; slip op. at 14; see also

Light Co. v. EPA, 698 F.2d at 472 (section eaieh dow

not “act as a full safeguard”).

Seeking redress for agency delay pursuant to a Section

113 penalty proceeding is a similarly inadequate remedy.

42 U.S.C. § 7413. Of course, as the court below noted, the

Act expressly permits a court, at the penalty stage, to

“take into consideration (in addition to other factors) the

size of the business, the economic impact of the penalty

on the business, and the seriousness of the violation,” Pet.

App. 15a; the “other factors,” according to the court, in-

clude the reasonableness of the agency’s delay. Jd. The

fact that agency delay would be a “factor” at a penalty

proceeding, however, where the focus of the proceeding

would be on industry rather than agency noncompliance,

provides little assurance that courts will consider such

delay more than superficially, if at all. Thus, this

redress provides little comfort to a company trying to

determine whether it can follow a proposed SIP revision

in the face of EPA inaction. More fundamentally, the

equitable approach, which focuses on the harm suffered

by industry as a result of EPA’s delay, does nothing to

address the harm suffered by the state in being unable

to carry out its public policy. In short, such recourse

does little to address the states’ interests in gaining

prompt review of SIP revisions.

Moreover, the “twofold” remedy that the court below

advances will needlessly result in costly litigation for all

involved parties. Because this approach allows an en-

forcement action prior to final EPA action with

to a proposed SIP revision, it could allow EPA to pursue

an enforcement proceeding before an administrative law

“ Indeed, even after the decision below, judges have struggled

with the parameters of these various factors and their usefulness in

addressing agency delay in acting on SIP revisions. Compare United

States v. Alean Foil Products, slip op. at 14-15 ( majority opinion)

with id. at 17-19 (concurring opinion).

22

judge, the Administrator, and a federal court without

determining whether the defendant was acting in con-

formity with a revised state plan that ensures the

achievement of National Ambient Air Quality Standards.

If, after all of these proceedings, EPA were to approve

the state’s revisions, the enforcement actions would have

wasted the resources of the state, the federal government,

and the defendant company. In addition, if penalties

were collected and the proposal later approved, the de-

fendant would have been penalized for following a course

of conduct that EPA ultimately determined would result

in the attainment of all relevant National Ambient Air

Quality Standards.

Also, during the enforcement proceeding, instead of

focusing on the importance of acting on SIP revisions

within four months, EPA will spend countless hours and

resources defending the reasonableness of its delay. Sim-

ilarly, instead of focusing on the achievement of air

quality through new technologies and cooperative state-

industry ventures, industry will spend valuable time and

money attempting to prove unreasonable agency delay

and, thereby, reduce any penalties assessed against it

under Section 113. Finally, the courts will devote enor-

mous resources in adjudicating these disputes and de-

veloping appropriate standards to guide review of agency

delay in these contexts. Adopting a “bright-line” rule

that imposes a temporary ban on EPA’s enforcement au-

thority prevents this needless waste of agency, judicial,

and industry resources.

3. Finally, the United States argues, U.S. Opp. Cert.

9, that a temporary enforcement ban is improper because

EPA cannot comply with the statutory four-month re-

view period given its large SIP revision workload. That

argument completely misperceives the nature of EPA’s

statutory mandate.

The Act plainly contemplates that the primary burden

of developing SIPs, including priority reviews, drafting

ee a

of plans, and public comment and hearings, rests with

the states. The states, therefore, must invest substan-

tial resources and time commitments to this task even

before EPA becomes involved. By contrast, EPA’s task

is more limited. Congress expressly articulated the

criteria that EPA must consider in reviewing SIPs

and, significantly, deemed four months to be adequate

time for EPA to do so. See 1 W. Rodgers, Environ-

mental Law: Air and Water §3.9, at 257 (1986)

(noting that the principal reason for restricting proce-

dural rights before EPA “is that ostensibly action must

be taken quickly under the statutory scheme: The Admin-

istrator has only four months to approve or disapprove

a submitted plan”). That EPA has the capacity to act

more promptly is evidenced by its recent promulgation

of procedures that are intended to enable it to do pre-

cisely that. See 54 Fed. Reg. 2214 (1989) (iden-

tifying “fundamental problems” with its approval proc-

ess and adopting changes to make review faster and more

efficient); U.S. Opp. Cert. 15-16 n.7 (noting that regu-

latory changes “should result in more expeditious deci-

sions on SIP revision proposals”).

In any event, EPA’s limited resources do not justify its

disregard of a statutory mandate to review SIP revisions

within four months. To be sure, like each partner state,

EPA confronts daily the task of allocating limited re-

sources to various agency priorities. But, in Section 110

(a), Congress set a priority that EPA is not free to ig-

nore: EPA must approve or disapprove SIPs and SIP

revisions within four months. To the extent that EPA dis-

agrees with that priority, for whatever reason, it must

direct that concern to Congress." EPA cannot simply ig-

8 Indeed, as the United States itself notes, U.S. Opp. Cert. 14

n.5, Congress is currently considering three bills that would amend

the Act to require EPA, as a general matter, to act on a SIP revi-

sion within twelve months. See H.R. 99, 101st Cong., Ist Sess.

§ 103 (1989) ; H.R. 3030, 101st Cong., Ist Sess. § 101(a)(1) (adding

Se LS ie ee

nore Congress’ four-month limitation and force the states

and the industries that they regulate to live with the

day-to-day consequences of its delay.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

January 1990 (504) 342-1240

§ 110(e)(2) to the Act) (1989); S. 1490, 101st Cong., Ist Sess.

§ 101(a) (adding § 110(e)(2) to the Act) (1989). Another pending

bill would allow EPA nine months to act on certain SIP provisions.

H.R. 2323, 101st Cong., Ist Sess. § 401 (1989).