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

In the

Supreme Court of the United States

October Term, 1989

GENERAL MOTORS CORPORATION,

¥ Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF AMICUS CURIAE OF

WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF THE PETITIONER

Of Counsel: Daniel J. Popeo

Robert H. Lamb Paul D. Kamenar

Robert S. Smith (Counsel of Record)

McGuire, Woods, Battle Washington Legal Foundation

& Boothe 1705 N Street, N.W.

1627 Eye Street, N.W. Washington, D.C., 20036

Washington, D.C. 20006 202-857-0240

Date: January 18, 1990

CASILLAS PRESS INC. 1717 K STREET NW. WASHING TON DX 20036 — 223-1220

TABLE OF AUTHORITIES

Cases:

American Cyanamid Co. v. EPA,

810 F.2d 493 (Sth Cir. 1987) ............ 12

Arnold Irrigation District v. Depart-

ment of Environmental Quality,

79 Or. App. 136, 717 P.2d 1274 (1986) ...... 9

California Federal Savings and Loan

Association v. Guerra,

Gap Gas Ge GD cv ect cevssuceuanuee 7

Council of Commuter Organization

v. Thomas, 799 F.2d 879

f- & rarest 12

Dixson v. United States,

46S US. 4B4 (1SB4) .. eee eee 10

Duquesne Light Co. v. EPA,

698 F.2d 456 (D.C. Cir. 1983) ........... 12

Florida Lime & Avocado Growers,

Inc. v. Paul, 373 U.S. 132

aS ss ee 7

Florida Power & Light Co. v. Costle.

650 F.2d 579 (Sth Cir. 1981)... ........ 5, 8

HJ. Inc. v. Northwestern Bell Telephone Co.,

Fo 2 Ff Beererere es 2

Heckler v. Community Health Services

of Crawford, 467 U.S. 51 (1984) ......... 11

Hines v. Davidowitz, 312 U.S. 52 (1941) ........ 8

Lyng v. Payne, 476 U.S. 926 (1986) .......... 11

Mianus River Preservation Committee v.

Administrator, Environmental

Protection Agency, 541 F.2d 899

EE ee 10

Pacific Gas & Electric Company vy.

The Public Utilities Commission

of California, 475 U.S. 1 (1986) ........... 2

Parklane Hoisery Company, Inc. v.

Shore, 439 U.S. 322 (1979) .............. 2

Train v. Natural Resources Defense

Council, 491 U.S. 60 (1975) ......... 6,7,9

Tull v. United States,

is 2

United States v. Alcan Foil Product,

694 F. Supp. 1280 (W.D. Ky. 1988),

aff d in part and rev'd in part,

889 F.2d 1513 (6th Cir. 1989) ........... 12

United States v. Arkwright, Inc.,

690 F. Supp. 1133 (D.N.H. 1988) ...... 11, 12

W.W. Dean & Associate v. City of

San Francisco, 188 Cal. App. 3d

1330, 234 Cal. Rptr., 51 (1987) ....... ihicig

iv

Constitution, Statutes and Rules:

eS Per eereeerereeery o 3

RF i > OL ere ar 10

BP ae I ED svc cece cewescsones 9

ae Ws OP . .-a 0 6 0 00:0 O89 0 6 4 0'8.00 5

42 U.S.C. §§ 7407(a) and 7410 (1982)....... 9

42 US.C. § 7410 (1982) .......... 3, 9, 13

42 U.S.C. § 7416 (1982) ........... passim

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

40 C.F.R. § 52.1167 (1988) ..............4. 3

46 Fed. Reg. 51, 386 (1981) .............04. 3

310 CMR. 7.18(7).............. cave ate ah ale 3

Publications:

78 U. Mich. L. Rev. 155, 202 (1979) ......... 13

IN THE

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1989

,

GENERAL MOTORS CORPORATION,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent. ~

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF AMICUS CURIAE OF

THE WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF THE PETITIONER

INTERESTS OF AMICUS CURIAE

The Washington Legal Foundation (WLF) is a non-

profit, public interest law and policy center based in

Washington, D.C. with 120,000 members nationwide.

WLF is committed to advancing the free enterprise sys-

tem and to promoting the principles of judicial restraint

involving constitutional and statutory law. To this end,

WLF has appeared as amicus curiae before this Court

as well as other state and federal courts in cases

2

affecting business and commerce. See, e.g., HJ. Inc. v.

Northwestern Bell Telephone Co., 109 S. Ct. 2893

(1988); Tull v. United States, 107 S. Ct. 1831 (1987);

Pacific Gas & Electric Company v. The Public Utilities

Commission of California, 475 U.S. 1 (1986); and Park-

lane Hoisery Company, Inc. v. Shore, 439 U.S. 322

(1979).

In accordance with Supreme Court Rule 37.1, ami-

cus has not reiterated the arguments of the petitioner,

but has focused on the issue of whether equitable

principles preclude enforcement by the Environmental

Protection Agency.

WLF submits this brief on behalf of petitioners

with the written consent of both parties pursuant to

Rule 37.3.

STATEMENT OF THE CASE

For the sake of brevity and avoidance of duplica-

tion of argument, the statement of the case contained in

the Petition for Writ of Certiorari is incorporated herein

by reference and the argument contained therein is

approved.

In this case a person' subject to the enforcement

powers of two sovereigns is threatened with the imposi-

tion of retroactive penalties by one for having complied

with the law of the other. General Motors, having

complied with the authority of the Commonwealth of

Massachusetts, is subjected to a belated enforcement

action in which the Environmental Protection Agency

(EPA) seeks to have the federal district court, with the

imprimatur of the Supreme Court of the United States,

'As defined in 42 U.S.C. § 7602(e) (1982).

3

impose civil penalties upon it notwithstanding that

compliance.

The framers of the Constitution anticipated conflict

between state and federal law and sought to provide for

it in the supremacy clause. U.S. Const., art. VI, cl. 2.

The supremacy clause does not, however, invalidate or

render unenforceable the Massachusetts law involved in

this case, because the federal Congress expressly

provided that preemption would not apply except in a

narrow band of circumstances, 42 U.S.C. § 7416 (1982).

Moreover, the Commonwealth of Massachusetts

acted in part as an agent of the United States in

conformance with, and at the invitation of, a federal

statute. 42 U.S.C. § 7410 (1982). General Motors, in

continuing to operate the Framingham facility past the

date specifically blessed by EPA, justifiably and rea-

sonably relied on the representations, deference and

failure to perform a statutory duty of one federal agent,

EPA, juxtaposed against the actual and apparent author-

ity of another, the Commonwealth of Massachusetts.

Equitable principles militate against the imposition of

penalties for actions which were based on such reliance.

The following chronology emphasizes the significant

order of events underlying this case.

In 1979, Massachusetts promulgated its SIP

regulation requiring full compliance by

December 31, 1985. 310 C.M.R. 7.18(7); see

40 C.F.R. § 52.1167 (1988).

In 1981, EPA _ published. policy statement

advocating deferral of compliance duties to

1986 or 1987. 46 Fed. Reg. 51, 386 (1981).

4

In 1985, Massachusetts revised its regulations

to extend the applicable deadline for compli-

ance to August 31, 1987.

On December 30, 1985, Massachusetts submit-

ted the revisions to EPA.

In early 1986, negotiations between officials of

EPA Region I and Massachusetts and General

Motors took place.

On July 7, 1987, General Motors shut down the

Framingham paint facility, about two months

ies tp Mlcdaiadens wee tee Gene of

August 31, 1987, and almost six months before

the Congressionally mandated attainment date

for ozone of December 31, 1987. 42 U.S.C.

§ 7502(aX(2) (1982).

On August 17, 1987, the United States filed an

enforcement action against General Motors for

operation of Framingham facility after

December 31, 1985.

ARGUMENT

A. Enforcement by EPA is Barred.

The amicus curiae agrees with the argument of the

Petitioner, that enforcement by EPA is barred as a

result of its failure to disapprove the SIP revisions

within the four month period. Additionally, in the

circumstances of this case, equity bars enforcement by

EPA of the original SIP to protect General Motors from

the jeopardy of conflicting enforcement by two

sovereigns, and by the application of principles of

equitable estoppel.

B. The Massachusetts Revisions Constituted Binding

State Law, Enforceable by the Commonwealth of

Massachusetts against General Motors.

In the Clean Air Act, 42 U.S.C. 7401 et seg., Con-

gress made its intention abundantly clear that the states

retained their police power to regulate in this area,

subject only to specified restrictions. The findings

enacted by Congress include one that “the prevention

and control of air pollution at its source is the primary

responsibility of States and local governments....". 42

U.S.C. § 7401(a)(3) (1982). The purposes of the Clean

Air Act are stated to include the provision of “technical

and financial assistance to State and local governments

in connection with the development and execution of

their air pollution prevention and control programs...

42 US.C. § 7401(b)(3). Only in a narrowly defined

range of circumstances is state regulation displaced in

favor of federal regulation. 42 U.S.C. § 7416. Under

that section, Congress has expressly left to the states the

authority to regulate in the areas not mentioned as being

exclusively within the federal domain.

In circumstances such as those underlying this case,

in which an emission standard or limitation is in effect

under an applicable state implementation plan (SIP), the

state retains the authority to adopt and enforce emission

standards and limitations provided that they are no less

stringent than those under the existing plan. 42 U.S.C.

7416. The issue of what is more or less stringent is to

be determined by reference to the national ambient air

quality standards (NAAQS) and the Congressionally

mandated attainment date. See Florida Power & Light

Co. v. Costle, 650 F.2d 579 (Sth Cir. 1981).

6

In this case, Massachusetts, in exercise of these

retained powers, adopted an air emission standard and

schedule and submitted it to EPA as a revision to its

existing SIP, as tLeing no less stringent than the

standard or limitation under the existing SIP. While

one component of the revision had the effect of ex-

tending the date of compliance with the old standard

which was provided in the existing SIP, this fact by no

means leads to an inevitable conclusien that the

Massachusetts revision was less stringent than the

existing standard. The standard under the submitted

revision required a lowering of emission levels. The

revision was technology forcing, as evidenced by

General Motors’ construction of a new, lower emission

facility. The revision required compliance with the

applicable national standard by the Congressionally

mandated attainment date.

The United States in this case seems to rely on

dictum of this Court in Train v. Natural Resources

Defense Council, 421 U.S. 60 (1975), to support the

contention that notwithstanding the express state

authority to adopt its own requirements without EPA

involvement, the existing SIP stipulates the only

applicable law until a revision is approved by both the

state and EPA. Brief for the United States in Opposi-

tion at 2 and 11. Such reliance is misplaced. While it

may be accurate to state that a revision does not be-

come part of the SIP which is enforceable by EPA until

it is approved by both the state and EPA, and that

timely EPA disapproval may preempt inconsistent state

regulation for the future, the state is acting within its

retained authority when it adopts a standard no less

stringent than that under the existing SIP, and that new

standard constitutes a legally binding obligation of

persons subject to the jurisdiction of the state, enforce-

able by the state, as a matter of state law. Until such

7

time as EPA disapproves state revision regulations, the

source is thus exposed to two enforcement directions:

state (under its revised regulations) and EPA (under the

existing SIP). The requirement that EPA act on state

revisions within four months in part mitigates the poten-

tial dilemma and burden thus imposed on the source.

In the absence of timely EPA disapproval, equity bars

enforcement by EPA.

Moreover, Train is distinguishable from the instant

case on its facts. This Court spoke in Train in the

context of EPA action on a SIP variance, and placed

emphasis on the source’s right to seek court review of

any disapproval. In the present case the EPA took no

formal action for a protracted period of time. Until

such time as the EPA did act, General Motors had no

opportunity to seek court review of that action, but was

bound to comply with Massachusetts law.

Moreover, federal preemption theory does not lead

to the conclusion that the Massachusetts regulations are

invalid in light of the standard contained in the existing

SIP, as the United States apparently suggests by its

citation of Train. Federal preemption of state law “is

not to be lightly presumed.” California Federal Sav.

and Loan Ass'n v. Guerra, 479 U.S. 272, 281 (1987).

In that case, this Court noted three instances in which

federal law may preempt state law. Firstly, Congress

may preempt state law expressly. Secondly, Congres-

sional displacement intent may be inferred where a

comprehensive scheme of federal regulation leaves no

room for supplementary state regulation. Thirdly,

federal law may preempt state law if the latter actually

conflicts with the former. /d. Such conflict may arise

because compliance with both is a physical impossibil-

ity, Florida Lime & Avocado Growers, Inc. v. Paul, 373

U.S. 132, 142-43 (1963), or because state law stands

“as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress." Hines v.

Davidowitz, 312 U.S. 52, 67 (1941).

None of these instances applies in the context of

the Clean Air Act. Congress has not expressly pre-

empted the states except in those few areas enumerated

in the Act. 42 U.S.C. § 7416. Other than in those,

Congress has evinced its intention that the states retain

authority. Congress has not legislated in such a way as

to preclude supplementary state regulation. To the

contrary, the scheme of the Clean Air Act contemplates

state supplementary regulation. Lastly, absent appro-

priate EPA disapproval, the Massachusetts regulations

do not actually conflict with federal law as they com-

port with its retention of state authority, imposing

standards no less stringent than those contained in the

existing plan. The fact that the Massachusetts regula-

tions extend the compliance deadline of the existing SIP

does not necessarily lead to a contrary conclusion. See

Florida Power & Light, 650 F.2d at 587. Nor did the

Massachusetts regulations hinder the attainment of

Congressional objectives, as they did provide for the

attainment of the national standard within the Congres-

sional timetable. That EPA might have done things

differently has no relevance in the context of preemp-

tion, as it is the objectives of Congress, not EPA, which

are to be achieved.

C. The United States is Estopped from Enforcing

the Existing SIP.

Under the state-federal relationship established by

the Clean Air Act, state action can fall into one of

three categories. Firstly, state action may be expressly

excluded. 42 U.S.C. § 7416. Secondly, action may be

taken under state police powers which existed under the

9

Cemeennan Sean anann O Se OS AM, at

which are retained by the state pursuant to Congres-

sional intent. /d. Thirdly, state action be taken in

may

areas in which Congress has assumed federal authority,

oe ne ee ee See

42 U.S.C. § 741

hee

ihedet

Wn

ate

apparatus.

responsibility to establish, administer and revise SIPs

falls within the third category. See 42 US.C. §§

7407(a) and 7410 (1982); Train v. Natural Resources

Defense Council, 421 U.S. 60 (1975).

State actions which fall within the third category

are in the nature of federal actions. To the extent

they are taken by the states qua federal agents

Act of Congress, they are cloaked with federal

unless such authority is revoked by or under |

ity of Congress, and are of at least equal

the actions of EPA. In the circumstances

Massachusetts was acting in part as an agent

federal government under authority delegated to

Congress. 42 U.S.C. §§ 7410.

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The concept of the states acting as agents of

federal government has been recognized in the context

of environmental legislation. In Arnold Irrigation

District v. Department of Environmental Quality, 79 Or.

App. 136, 717 P.2d 1274 (1986), the Court of Appeals

of Oregon noted that the states, in passing on applica-

tions for certificates under the federal Clean Water Act,

33 U.S.C. § 1341 (1982), “act in part as agents of the

federal government." 717 P.2d at 1278, n.4. See also,

W.W. Dean & Assocs. v. City of San Francisco, 188 Cal.

App. 3d 1330, 234 Cal. Rptr., 51, 58 (1987) (city acted

as an administrative agent of the state and federal

10

governments in implementing the Endangered Species

Act, 16 U.S.C. § 1531 (1982)); but see Mianus River

Preservation Committee v. Administrator, Environmental

Protection Agency, 541 F.2d 899, 906 (2d Cir. 1976)

(states not relegated to the status of enforcement agents

for the executive branch of the federal government

under the Federal Water Pollution Control Act Amend-

ments of 1972, 33 U.S.C. § 1369(b)(1FXSupp.IV), and

therefore free to enact requirements no less stringent

than the federal standards. )’

The concept of non-federal persons acting as federal

agents has been recognized by this Court in other

contexts. In Dixson v. United States, 465 U.S. 484

(1984), this Court held officers of a private non-profit

corporation administering and expending federal devel-

opment block grants to be “public officials” acting “for

or on behalf of the United States” for purposes of the

federal bribery statute, 18 U.S.C. § 201(a) (1982).

This Court has never decided that the United States

may not be estopped. The Court has declined to state a

rule that

there are no cases in which the public interest

in ensuring that the Government can enforce

the law free from estoppel might be outweighed

by the countervailing interest of citizens in

some minimum standard of decency, honor and

reliability in their dealings with their Govern-

11

Heckler v. Community Health Services of Crawford, 467

U.S. 51, 60-61 (1984) (emphasis in original).

Estoppel requires the reasonable reliance by one

party, to its detriment, upon the misrepresentations of

another. See Lyng v. Payne, 476 US. 926 (1986);

Heckler at 59; United States v. Arkwright, Inc., 690 F.

Supp. 1133 (D.N.H. 1988). In the present case, General

Motors relied upon representations made on behalf

EPA's 1981 release, in the revisions granted by Massa-

chusetts in 1985, by EPA’s failure to disapprove the

revisions in a timely fashion and by

negotiations with Massachusetts and General Motors

after approval by Massachusetts of its revisions.’

Such reliance was reasonable given the level of

authority. Cf. Heckler; Arkwright. General

relied on EPA’s guidelines published in the

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v. Thomas, 799 F.2d 879, 888 (2d

United States v. Alcan Foil Prods., 694

(W.D. Ky. 1988), affd in part and rev’

F.2d 1513 (6th Cir. 1989).

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13

tent enforcement powers of two sovereigns, and by the

application of estoppel.*

Respectfully submitted,

Daniel J. Popeo

Paul D. Kamenar

(Counsel of Record)

Washington Legal

Foundati

1705 N Street, N.W.

Washington, D.C. 20036

202-857-0240

Of Counsel:

Robert H. Lamb

Robert S. Smith

McGuire, Woods, Battle & Boothe

1627 Eye Street, N.W.

Washington, D.C. 20006

January 18, 1990

*The intention of Congress that the federal courts should exercise

equity jurisdiction in the context of granting modifications of

requirements to avoid hardship under the Clean Air Act is evinced

by the Act itself. See 42 U.S.C. § 7410(i); Curme, Relaxation of

Implementation Plans Under the 1977 Clean Air Act Amendments,

78 U. Mich. L. Rev. 155, 202 (1979).