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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0670%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 496 U.S. 530

## Text

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0670%3A14. Public record. Not legal advice.