# 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%3A17

## Record

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

## Text

No. 89-369

IN THE SUPREME COURT OF THE UNITED“SPATES™""-~--
OCTOBER TERM, 1989

GENERAL MOTORS CORPORATION, Petitioner,

V.

UNITED STATES OF AMERICA, Respondent.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF AMICUS CURIAE
SERVICE STATION DEALERS OF AMERICA

Dimitri G. Daskalopoulos
Counsel of Record

325 Pennsylvania Avenue, S.E.
Washington, D.C. 20003
202- 675-6300

January 18, 1990

No. 89-369

IN THE SUPREME COURT OF THE UNITED STATES
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 AMICUS CURIAE
SERVICE STATION DEALERS OF AMERICA

Dimitri G. Daskalopoulos
Counsel of Record

325 Pennsylvania Avenue, S.E.
Washington, D.C. 20003
202- 675-6300

January 18, 1990

TABLE OF CONTENTS

PPP TTTITTTTTTT Le

Interest of Amicus “ene oeeeeneeeeeeeneees ¢

Summary of Argument .......2.ceeeee cece
Argument *“e @©e#weeeneee eee#e#eeeeeeeee#*e #*# © # © ©
I. THE STATES HAVE PRIMARY

If.

Iilt.

AUTHORITY FOR CONTROL OF

AIR POLLUTION SOURCES

WITHIN THEIR BOUNDARIES

UNDER THE CLEAN AIR ACT ......

EPA MUST ACT ON A

PROPOSED SIP REVISION

WITHIN FOUR (4) MONTHS OF

THE APPLICATION BY THE

STATE .ccccccccccccssceesssees

THE FIRST CIRCUIT'S
PROPOSED REMEDY FOR EPA
INACTION IS UNWORKABLE .......

A. The Citizen's Suit .......

B. Reductions In
Potential Penalties
Is Also Not An
Appropriate Remedy
For The Adminis-
trator’s Inaction ....cece

IV. ONLY THE ENFORCEMENT BAR
AS ADOPTED BY THE FIFTH
CIRCUIT IN AMERICAN
CYANAMID PROPERLY
PRESERVES THE ROLE OF THE
STATES AND IS FAITHFUL TO
THE PURPOSES OF THE ACT ...... 19

Conclusion oenreneneeneeseneeneeneenee eee ee em—UcmeRrmUcCrChUCUchhUCUchCUrh!}LUhHhUhF 21

STATEMENT OF INTEREST
With the consent of the parties, the
Service Station Dealers of America (herein-
after SSDA) respectfully submits this Brief

Amicus Curiae in support of the Petitioner.

The SSDA is the voice of America's sixty
thousand (60,000) independent retail gasoline
dealers. It consists of forty-three (43)
State and regional dealer associations. The
SSDA believes that its interests in the case
have not been specifically represented by any
of the parties nor their supporting amaci.
Specifically, the SSDA brings the perspective
of the small business group most affected by
the Clean Air Act to this case. SSDA members
typically own and/or operate a single service
Station, which is the sole means of sup-
porting their families. For purposes of the
Clean Air Act, they would be classified as

non-major stationary sources. Both the

Petitioner, General Motors, as well as many
of its supporting amici are major stationary
sources and are large businesses which would
have greater, but by no means adequate,
resources to utilize the remedy suggested by
the First Circuit for EPA's inaction on a
proposed State SIP revision. Specifically,
the SSDA is very concerned that the proposal
that a small stationary source is some how
adequately protected from EPA inaction by its
ability to file a mandamus action in a
District Court to compel the EPA adminis-
trator to act on a SIP revision. This remedy
that simply does not grant any real world
relief and if anything, for a small business
could be classified as a phyrraic victory.
The litigation costs alone would be too great
for a small business to bear.

According to EPA's own data, the typical

SSDA member firm has a medium net worth of

Only Eighty-one Thousand and 00/100
($81,000.00) Dollars. To suggest, as the
First Circuit did, that dealers spend these
limited resources pursuing actions to compel
the EPA administrator to perform a drty which
he or she clearly has to perform under the
law is simply not facing reality. Indeed, we
further question whether Congress ever
intended that the limited resources of small
business such as those represented as SSDA be
spent on enforcement actions to compel the
administrator to perform a non-discretionary
duty, as opposed to investing in those
control strategies that would most
expeditiously produce attainment of the
National Ambient Air Quality Standards in the
many non-attainment areas across the country.
Thus, while in a very broad sense the
interest of the SSDA coincide with those of

the Petitioner and some of its supporting

amici, the SSDA approaches the issues
presented from a perspective not represented
in the case and thus, has filed the following
brief.

SSDA would add that many of its members
run small auto body and paint shops affected
by the regulations at issue in the case at
bar.

SUMMARY OF ARGUMENT

1. The States have the primary
responsibility for the control of air
pollution sources within their boundaries
under the Clean Air Act; allowing EPA to
delay approval or disapproval of revisions to
the State's plan beyond the four (4) month
deadline, upsets the carefully crafted
Statutory provisions.

2. The plain language of the statute
as well as its legislative history and the

unanimous holdings of the Courts of Appeal to

consider it lead to the conclusion that the
four (4) month deadline for EPA to approve or
disapprove a State's SIP is equally
applicable to proposed revisions to that SIP.

De The First Circuit's proposed
two-pronged remedy for EPA's failure to
observe the four (4) month deadline is
unworkable. First, the citizen's suit remedy
would require a company to potentially expose
itself to a fine of One Million Five Hundred
Thousand and 00/100 ($1,500,000.00) Dollars,
and in practice, litigation costs alone make
this impractical for a small business such as
those represented by SSDA.

The reduction of penalty remedy is
something that is left solely at the
discretion of the District Court and is not
mandatory as are the statutory mitigating

factors.

er ed

4. Only the enforcement bar rule, as
adopted by the Fifth Circuit, gives full
effect to Congressional purposes.

ARGUMENT
I. THE STATES HAVE PRIMARY AUTHORITY
FOR CONTROL OF AIR POLLUTION
SOURCES WITHIN THEIR BOUNDARIES

UNDER THE CLEAN AIR ACT.

Of principal concern to the SSDA in the
case is the position taken by EPA that it can
withhold its approval of a proposed revision
to a State implementation plan and thus, in
effect, “pocket veto" such revisions, while
at the same time seeking penalties against
those corporations and sole proprietorships,
that may act in good faith reliance on such
proposed revisions.

When dealing with the regulation of

stationary sources under the Clean Air Act,

it is not unfair to say that the States are
the dog and the EPA is the tail.

The plain language of the Act makes
clear that “each State shall have the primary
responsibility for assuring air quality
within the entire geographic area comprising
such State." 42 U.S.C. $7407(a) (emphasis
added). Congress has repeatedly reaffirmed
this primary role of the States in its
periodic revisions of the Act.

For example, in the 1977 revisions to
the Act, Congress enacted a method by which
States could grant temporary relief from SIP
requirements in the form of “delayed
compliance orders", the authority for which
is now found at 42 §7413(d). The legislative
history of this provision states that it was
enacted in large part in order to “reaffirm
the primary role of the States in the

formulation and enforcement of State

a es

implementation plans." See, House Report No.
95-294, 95th Congress, First Session, (1977),

re-printed in 1977 U.S. Code Congressional

and Administrative News 1077, 1135-1136.
Thus, as this Court pointed out in Train

v. Natural Resources Defense Council, 421 U.S

60 (1975):

"The agency is plainly charged by
the Act with the responsibility for
setting National Ambient Air
Standards. Just as plainly,
however, it is relegated by the Act
to a secondary role in the process
of determining and enforcing the
specific, source by source
admission limitations which are
necessary if the national standards
that are set are to be met ... the
Act gives the agency no authority
to question the wisdom of a State's
choice of admission limitations if
they are part of a plan which
satisfies the standards of
$110(a)(2) ... S80 long as the
ultimate effect of a State's choice
of admission limitations is in
compliance with the national
standards for ambient air, the
State is at liberty to adopt
whatever mix of admission standards
it deems best suited to its
particular situation."

421 U.S. at 79 (1975).

Te

eS eee

Finally, it should be pointed out that
if a SIP meets the check list of criteria set
out in 42 U.S.C. $7410(ad(2), the
administrator has no choice but to approve
such SIP or a revision thereto.

Allowing EPA to procrastinate beyond the
statutorily prescribed four (4) month
deadline, as discussed in detail infra,
subserviates the State’s to EPA, and grants
the Federal Government the primary role that
the plain language of the Act leaves for the
States.

For this policy reason alone, this Court
should affirm the holding of the First
Circuit that the four (4) month limitation
applies to EPA review of SIP revisions, as
well as to the original SIPs themselves.

II. EPA MUST ACT ON A PROPOSED SIP

REVISION WITHIN FOUR (4) MONTHS OF
THE APPLICATION BY THE STATE.
The threshold issue in this case, as

framed by the First Circuit, is “whether the

|
|
)

Act imposes a four (4) month deadline on EPA

review of SIP revisions." U.S. v. Gener

Motors Corporation, 876 F.2d 1060, 1065 (lst
Cir. 1989). The First Circuit correctly held
that the four (4) month limitation does
indeed apply to SIP revisions as well as the
EPA review of original SIPs. Id. at 1066.

To begin with, Amicus believes that this
interpretation is supported by the only
reasonable interpretation of the plain
language of the Act. Specifically, the Act
requires that EPA either approve or dis-
approve of an original SIP submitted by a
State within a hundred twenty (120) days of
receipt by EPA of the SIP. 42 U.S.C.
$7410(a)(2). Next, $7410(a)(3)(A) dealing
with SIP revisions, expressly incorporates
the requirements of §7410(a)(2).

Therefore, the First Circuit was clearly

correct in following its sister circuits in

10

holding that the one hundred twenty (120) day
deadline for EPA action on a SIP revision is
incorporated into 42 U.S.C. $7410(a)(3)(A).

Moreover, 42 U.S.C. $7410(g)(1)
discusses circumstances when the EPA
administrator has not approved or disapproved
the SIP revision within the “required four
(4) month period". It should be noted that
the First Circuit did not examine the plain
implication of §7410(g)(1) in reaching its
decision.

While Amicus believes that the Court
need go no further than the plain language of
the statue in order to affirm the bolding of
the First Circuit, it is important to note
that in at least one Federal Register notice
concerning regulations governing penalties
for non-compliance pursuant to 42 U.S.C.
§7420, EPA itself has acknowledged that the

four (4) month Limitation applies to SIP

ll

revisions. See, 50 Federal Register 36,732
et. seg. at 36, 733 (September 9, 1985).
Finally, it is important to note that
there is now unanimity within the circuits
that the Clean Air Act imposes a four (4)

month deadline on EPA review of proposed SIP

revisions. See Council of Commuter
Organizations v. Gorsuch, 683 F.2d 648,
651-52 N.2 (2nd Cir. 1982); Duquesne Light
Company v. EPA, 698 F.2d 456 (D.C. Cir.
1983); American Cyanamid v. U.S. Environ~
mental Protection Agency, 810 F.2d 493, 495

(Sth Cir. 1987); United States v. General
Motors Corporation, 876 F.2d 1060, 1066 (lst

12

Cir. 1989); United States v. Alcan Oil

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

III. THE FIRST CIRCUIT'S PROPOSED REMEDY
FOR EPA INACTION IS UNWORKABLE.

The First Circuit in rejecting the
enforcement bar adopted by the Fifth Circuit

in American Cyanamid attempted to steer what

it termed a “middle course between the two

extremes, attempting to permit trial courts

1 At one time it appeared that the Sixth
Circuit may not have required EPA
compliance with the four (4) month rule.
See United States v. National Steel
Corporation, 76? F.2d 1176, 1182-1183
N.1 (6th Cir. 1985). The Sixth Circuit
rejected this earlier dicta in its
recent Alcan decision. Amicus hereby
incorporates by reference the arguments
made by Petitioner on this point.
Suffice it to say that if the Court
should reverse the decision below and
hold that the four (4) month limitation
does not apply to EPA review of SIP
revisions, we would truly be ina
situation where the tail, in this case
EPA, was truly wagging the dog, the
States.

13

to take account of the circumstances of each
case and hopefully accommodate both the
State's needs and the public's desire for

clean air." U.S. v. General Motors Corpor-

ation, 876 F.2d 1060 at 1067. The First
Circuit suggested two possible remedies for
EPA inaction. The first was for the affected
company to bring a citizen's suit pursuant to
42 U.S.C. $7604(a)(2) in order to compel
agency action. Id. The second remedy it
proposed was for the District Court to
consider "the reasonableness of the agency's
delay and the prejudice, if any, suffered by
the company as a result." Id. We discuss
the problems with each of these remedies
separately.

A. The Citizen's Suit Remedy.

In order to assess the possible
efficiency of the “citizen's suit” remedy

proposed by the First Circuit, it is

14

necessary to examine the statutory language
authorizing such suits which is found at 42
U.S.C. $7604.

Specifically, $7604(a)(2) allows any
person to commence a civil suit on his behalf
against the Administrator where there is a
failure of the Administrator to perform an
act or duty which is non-discretionary under
the Act. §7604(b)(2) provides that no such
action may be maintained unless the proposed
Plaintiff has given the Administrator sixty
(60) days notice of such proposed action.

This notice in turn cannot be provided
until the statutory period within which the
Administrator may act has run out, in the
case of a proposed SIP revision, one hundred
twenty (120) days.

Thus, a major stationary source must put
itself at risk of a fine of up to One Million

Five Hundred Thousand and 00/100

15

($1,500,000.00) Dollars before it could even
begin to avail itself of the remedy proposed
by the First Circuit.

Not only must such a source risk such
potential exposure, the infliction of
litigation costs alone may well be more than
such source may bear. This is particularly
true of relatively small “major sources."

Amicus can scarcely believe that
Congress intended for those sources making
good faith, best efforts to reduce pollution,
would be forced to squander their resources
on actions to compel the administrator to
perform non-discretionary duties, when their
limited resources would be better spent on
pollution abatement. This is particularly
true in the case of relatively small
businesses.

It should be noted that both the Sixth

Circuit in Alcan, as well as the D.C. Circuit

16

———

in Duguesne Light, both took the view that
the “citizen's suit" remedy adopted herein
by the First Circuit would simply not be an
effective remedy for EPA inaction. SSDA
fully agrees with the Sixth and D.c. Circuits
and strongly urges the Court to reject the
idea that a citizen's suit is an effective .
remedy for agency inaction in the present
context.

B. Reductions In Potential Penalties

Is Also Not An Appropriate Remedy
For The Administrator's Inaction.

In reaching its holding tt t District
Courts should consider the reasonableness of
the Agency's delay and the prejudice, if any,
to a company by the Agency's inaction in
determining what penalties should be imposed
under the Act, the First Circuit did not
accurately quote §113 (42 U.S.C. $7413) of

the Clean Air Act.

17

“—

Specifically, the First Circuit quoted
that section of the Act as expressly allowing
courts to “take into consideration the size
of the business, economic impact of the
penalty on the business and the seriousness
of the violation in determining an
appropriate penalty." 876 F.2d at 1068.

The distinction between the factors
enumerated by the statute and the proposed
remedy of the First Circuit is that the
factors Listed by the statute are mandatory,
that is, §$113(b) of the Act states that
District Courts “shall take into
consideration the size of the business, the
economic impact of the penalty on the
business and the seriousness of the
violation."

On the other hand, the balancing test
proposed by the First Circuit would be purely

discretionary with the trial court. Thus, a

18

“—

trial court would have no duty to reduce the
penalties, and even if it did exercise its
discretion to reduce such penalties, the
penalties would surely be greater than that
which a small business, such as those
represented by SSDA members, could absorb.

In sum, the hope that a District Court
may reduce a penalty due to EPA inaction, is
not something that any rational businessman
would risk both his Livelihood and those of
his or her employees over. It is not a
workable remedy and the Court should reject

it.

IV. ONLY THE ENFORCEMENT BAR AS ADOPTED
BY THE FIFTH CIRCUIT IN
Sean STATES. pansenvie ter

E STATES AND IS FAITHFUL
TO THE PURPOSES OF THE ACT

The SSDA strongly urges the Court to
adopt the pos.tion taken by the Fifth Circuit
in American Cyanamid and require EPA to

19

either accept or reject a SIP revision before
it may bring an enforcement action against
the company that is in compliance with such
State authorized revisions. SSDA can add
little to the cogent arguments already made
by Petitioner and the other amici in this
regard.

However, we would point out that there
are similarities in this situation to other
areas of the law. For example, under the
antitrust laws, a party which takes actions
which may be anti-competitive, yet are
compelled by the State, are shielded from
antitrust liability by virtue of the state
action Doctrine. This was reaffirmed as

recently as this Court's 1985 decision in the

Southern Motor Carriers case. Similarly, it

seems most inequitable to subject a company
that acts pursuant to State authorization by

virtue of a SIP revision under the Clean Air

20

Act to be subject to penalties. It would be
Similar to allowing the Department of Justice
to unilaterally define substantive antitrust
offenses for which a party, acting under
State compulsion, could be held liable. We
thus strongly urge adoption of the Fifth
Circuit rule.
CONCLUSION

The judgment of the First Circuit should
be affirmed as to the issue of whether the
four (4) month rule applies to EPA approval
of proposed SIP revisions. The judgment
should be reversed as to the issue of the
appropriate remedy for the agency inaction
upon such SIP revision.

Respectfully submitted,

Dirlig’ J) Dase
Dimitr . Das opoulos
Counsel of Record for

Amicus Service Station
Dealers of America

21

CERTIFICATE OF SERVICE
I hereby certify that on this 18th day
of January, 1990, I mailed, first class mail,
postage prepaid, three (3) copies of this
Brief Amicus Curiae to: Theodore L. Garrett,
Covington and Burling, 1201 Pennsylvania
Avenue, N.W., P. O. Box 7566, Washington,

D.C., 20044 (Counsel of Record for

| Petitioner, General Motors Corporation), and
to: Kenneth W. Starr, Solicitor General,
| U.S. Department of Justice, Washington, D.C.,

. 20530 (Counsel of Record for Respondent,

United States of America). I further
certifiy that all parties required to be

served have been served.

Dimitri G. Das °

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0670%3A17. Public record. Not legal advice.