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

(¢) Supreme Court, U.S,

No. 89-369 | en me

IN THE

SUPREME COURT OF THE

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 COMMONWEALTHS

OF MASSACHUSETTS AND VIRGINIA AND

THE STATES OF CALIFORNIA, CONNECTICUT,

IDAHO, ILLINOIS, KANSAS, MICHIGAN,

MINNESOTA, NEW YORK, NORTH CAROLINA,

VERMONT, AND WASHINGTON

AS AMICI CURIAE URGING AFFIRMANCE

JAMES M. SHANNON

Attorney General

JAMES R. MILKEY*

Assistant Attorney General 7

One Ashburton Place

Boston, MA 02108

(617) 727-2200

Attorneys for Amicus Curiae

Commonwealth of Massachusetts

*Counsel of Record

[Other Counsel Listed On Inside Of Front

Cover)

OTHER COUNSEL FOR AMICI STATES

JOHN K. VAN DE KAMP

Attorney General of

California

CLARINE NARDI RIDDLE

Attorney Genera: of

JIM JONES ' -

Attorney General of

NEIL F. HARTIGAN

Attorney General of

ROBERT T. STEPHAN

Attorney General of

FRANK J. KELLEY

Attorney General of

HUBERT H. HUMPHREY,

Attorney General of

ROBERT ABRAMS

Attorney General of

LACY H. THORNBURG

Attorney General of

JEFFREY AMESTOY

Attorney General of

MARY SUE TERRY

Attorney General of

KEN EIKENBERRY

Attorney General of

Connecticut

Idaho

Illinois

Kansas

Michigan

Itt

Minnesota

New York

North Carolina

Vermont

Virginia

Washington

ISSUE PRESENTED

Whether Federal Enforcement of the

Existing Provisions of a Clean Air Act

State Implementation Plan Is Barred

Pending Completion of the United States

Environmental Protection Agency’s Review

of a Proposed Revision to the Plan?

TABLE OF CONTENTS

SOGUB POMSUNTED . . 2s ew et tt th the CU

TABLE OF CONTENTS ....- +--+ ++ e+e - il

TABLE OF AUTHORITIES ......+ ++ + iv

INTERESTS OF AMICI STATES ......-. 1

SUMMARY OF ARGUMENT ae ce oe ae ee

ARGUMENT

FEDERAL ENFORCEMENT OF THE EXISTING

SIP PROVISIONS IS NOT BARRED PENDING

COMPLETION OF EPA REVIEW OF A

PROPOSED REVISION [he ee €,6 6 Se

I. Until EPA Rules on a SIP

Revision, the Existing SIP

Remains In Effect aoe’ « « Be

II. EPA’s Failure to Review SIP

Revisions In a Timely Manner

Does Not Create A Bar to

Federal Enforcement of the

Existing SIP . ate «6 «6 « « AC

A. The Clean Air Act Mandates

Federal Enforcement of

Existing SIP Provisions . 16

B. The Proposed Enforcement

Bar Contravenes the

Language and Intent of the

Clean Air Act, As Well As

General Principles Against

Forefeiture of the Public

Interest oeeee*#s»ese-a

efile

The Proposed Enforcement Bar

Will Not Prompt EPA Action

Beyond the Available Mandamus

Remedy ...- ++ + «© «© « « 25

III. Any Unfairness to General Motors

Caused By EPA’s Delay Can Be

Remedied Without An Enforcement

Bar . oe > * .* . .* _ . _ . — > 29

CONCLUS ION . . . . . . . . . . . . . 7 34

-iii-

TABLE OF AUTHORITIES

CASES

, 810 F.2d

493, 495 (5th Cir. 1987) ..-.-.- - &, &2

, 476 U.S. 253, 259

(1986) . * . ° . ° ° ° ° 19-22, 24

S V.

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

1986) . . . . . . . . . . . 4, 21

, 698 F.2d 456,

471 (D.C. Cir. 1983) .. 4, 9, 17, 32

Vv , C.A. No.

89-0403-T (D. Mass.) . .--+-+ ++ + 26

Vv el, 842

F.2d 224, 229 (9th Cir. 1988). . . 26

ew York Vv.

W

Brock, 769 F.2d 37, 41 (2d Cir.

1985), cert. denied, 476 U.S. 1140

(1986) = a ee

‘Datanse Counsil, 421 U.S. 60

(1975) . . Be. DB. B39, 32

oducts, 889

F.2d 1513 (6th Cir. 1989) ....- 4

814 F.2d 1099, 1102

(6th Cir. 1987) oo ie . O23, 24, 9

Vv ors,

876 F.2d 1060 (lst Cir. 1989)

(opinion below) . . 3, 15, 22, 25, 30

U

R. Co.,

118 U.S. 120,

125 (1886) .

2d 763-64 (lst Cir. 1985)

307,

STATUTES

33

42

42

42

42

42

42

42

42

42

42

42

42

U.S.C.

U.S.C.

U.S.C.

U.S.C.

G.8-C-

U.S.C.

U.S.C.

U.S.C.

U.S.C.

U.S.C.

i

U.S.C.

U.S.C.

§§ 1251 et seg.

§

§

§

§

§

§

§

§

§

§

320-21 (1967)

7407 °

7409 °

7410 °

7410(a) .

7410(c) .

7410(d) .

7410(g) .

7413 °

7413 (a) (1)

7413(b) .

7413(c) (1)

7604 °

-V-

'

°7

758 F.

388 U.S.

20

30

32

24

REGULATIONS

40 C.F.R. § 50.8(a)(2) ...

OTHER SOURCES

54 Fed. Reg. 19173 (May 4, 1989)

S. Rep. No. 91-1196, 91st Cong.,

2d Sess. 10 (1970) ° .

-vi-

23

23

ee ee a

INTERESTS OF AMICI STATES

The states that have joined in this

brief, like all states, have a

fundamental interest in protecting the

health and welfare of their citizens.

One of the most important ways that

states pursue this interest is through

preventing air pollution. Moreover,

under the Clean Air Act, states have "the

primary responsibility for assuring air

quality" within their respective

borders. 42 U.S.C. § 7407. The

fundamental interest that states share in

protecting their citizens from air

pollution would be served by affirmance

of the opinion below.

The Clean Air Act is administered

jointly by the states and the United

States Environmental Protection Agency

(EPA). Particular roles are assigned to

each. EPA is required to set national

ambient air quality standards (NAAQS) for

designated pollutants. 42 U.S.C.

§ 7409. Each state is then required to

develop and administer state

implementation plans (SIPs) setting forth

the strategy the state will use to bring

its air quality into compliance with the

NAAQS and to maintain such compliance

thereafter. 42 U.S.C. § 7410.

States must submit their SIPs to EPA

for review and approval. 42 U.S.C.

§ 7410(a)(1). Any proposed revisions to

an approved SIP are also subject to EPA

approval. 42 U.S.C. § 7410(a)(3). Only

after such approval is a SIP or SIP

revision effective under the Clean Air

Act. Train v. Natural Resources Defense

Council ("Train"), 421 U.S. 60, 92 (1975).

EPA must approve a SIP submittal when

the agency determines that the submittal

would result in timely attainment of the

NAAQS and that it otherwise complies with

a specified set of statutory

-2-

requirements. See 42 U.S.C.

§§ 7410(a) (2), 7410(a)(3) (A). EPA may

not substitute its judgment for that of

the states regarding the particular mix

of emissions limitations appropriate for

achieving compliance with the NAAQS.

Train, supra, 421 U.S. at 79.

Because SIP revisions are effective

under the Clean Air Act-only after EPA’s

approval, the role of the states as the

primary policy-makers will be preserved

only with prompt EPA review. States

therefore have a strong interest in

ensuring expeditious review of their SIP

“revisions. The statute addresses this

interest by requiring EPA to act on SIP

i/

revisions within four months.

l/ The Court of Appeals for the First

Circuit properly recognized that EPA has

a nondiscretionary duty to act on SIP

revisions within four months. 876 F.2d

at 1066. For the reasons set forth in

(footnote continued)

-3-

Where a SIP revision would relax an

emissions limitation and where EPA has

not acted upon the SIP revision within

four months, Petitioner General Motors

Corporation ("General Motors") argues

that federal enforcement should be barred

against a person who is in compliance

with the proposed revision until FPA

denies the revision. See Brief of

Petitioner General Motors Corporation

("Petitioner’s Brief") at pp. 20-24.

(footnote continued)

the Brief of Petitioner General Motors

Corporation at p. 12, n. 13, the

correctness of that ruling is not before

this Court. In any event, for the

reasons set forth at pp. 13-14 of the

petitioner’s brief, the ruling is

certainly correct. All other circuits

that have addressed this issue have come

to the same conclusion. See Council of

as, 799

F.2d 879, 888 (2d Cir. 1986); American

, 810 F.2d 493, 495

(Sth Cir. 1987); United States v. Alcan

, 889 F.2d 1513, 1517-18

(6th Cir. 1989); - V

EPA, 698 F.2d 456, 471 (D.C. Cir. 1983).

-4-

General Motors contends that such an

enforcement bar is the only appropriate

and meaningful remedy for EPA delay.

This contention is based primarily on

General Motors’ assessment of the states’

interests. See e.g., Petitioner’s Brief

at p. 22 (arguing that enforcement bar

follows from state interests, not from

unfairness to industry). For the reasons

set forth below, amici states disagree

with petitioner’s assessment. The states

submit this brief so that they, and not

General Motors, may set forth what is in

2/

their interest.

The enforcement bar that General

Motors proposes would have the effect of

allowing a state’s proposed SIP revision

2/ In concurring with EPA that the

agency’s delay should not work an

enforcement bar, the amici states do not

mean to condone EPA’s delay or to

minimize the problems that such delay

causes the states.

-5-

to go into effect without EPA approval.

While states, of course, have an interest

in seeing that their SIP revisions are

federally approved, it does not follow

that states also have an interest in

allowing such revisions to go into effect

without EPA’s approval. EPA’s review and

approval directly benefits a state by

ensuring that relaxation of a particular

emission limitation will not prevent the

state from coming into compliance with

the NAAQS.=/

3/ The differences in the roles assigned

to the states and to EPA are very

important for some purposes, but they

Should not be overstated. Ultimately,

the Clean Air Act charges both the states

and EPA with the same goal: reducing air

pollution so as to achieve compliance

with the NAAQS. While there will

inevitably be tensions between the states

and EPA as to how to achieve the goal of

clean air, the state and federal agencies

should, and generally do, attempt to work

together with mutual respect and

appreciation for the legitimate role of

(footnote continued)

-6-

Moreover, a state proposing a

revision and EPA share a strong interest

in maintaining respect for compliance

with the Clean Air Act. The proposed

enforcement bar would undercut this

interest by condoning knowing violations

of federal law. 4/ For this reason,

states have an interest in preserving the

enforceability of existing SIP provisions

even where they have sought to revise

those provisions.

(footnote continued)

the other. This relationship has been

reflected in the controversy at hand.

While Massachusetts and EPA have a

reasonable difference of opinion

regarding approval of the particular SIP

revision at issue, the relationship

between them has been one of respect.

4/ As discussed below in Part I of the

Argument, the existing SIP provisions

remain the federal standard with which

industry must comply.

oJo

Any proper analysis of state

interests must consider not only the

interests of the state proposing the SIP

revision, but the interests of other

states as well. Air pollution ignores

state boundaries. As a result, states

that are downwind of a state seeking to

relax an emissions limitation have an

important stake in strong EPA oversight

of the proposed revision. For the same

reason, downwind states also have a

strong interest in preserving the

enforceability of the existing SIP

provisions pending completion of EPA

review.

Furthermore, states compete for

industry. This creates economic pressure

for states to reduce the level of air

pollution regulation in order to attract

or to keep “smoke stack industries." EPA

oversight helps police this interstate

competition. See e.g., United States v.

-8-

Ford Motor Co., 814 F.2d 1099, 1102 (6th

Cir. 1987) (without federal oversight,

"major shifts of smoke stack industries

to states with the most lenient pure air

standards would inevitably take

place") .2/ Therefore, even states

that are upwind of the state seeking to

revise its SIP have an interest in

increased federal supervision, not less.

For the same reason, upwind states also

have an interest in the continued

enforceability of the existing SIP while

the proposed revision is under

5/ See also Duquesne v. EPA, supra, 698

F.2d at 471 (recognizing EPA’s role "to

ensure national uniformity where needed,

for example, to ensure that states do not

compete unfairly for industry by offering

air quality standards that are too lax to

bring about needed improvements in the

air we breath").

review. 2/

In sum, states have a strong interest

in EPA acting promptly, but it does not

follow that the enforcement bar proposed

by General Motors is also in their

interest. States have an independent

interest in preserving the enforceability

of an existing SIP while a proposed

revision is under EPA review. This

interest would be directly undercut by

General Motors proposed remedy. The

amici states therefore ask this court to

decline General Motors’ invitation to

create the proposed enforcement bar and

instead to affirm the decision of the

Court of Appeals for the First Circuit.

6/ A state prevented from putting its

SIP revision into effect without EPA

approval achieves a reciprocity of

benefit from the fact that other states

find themselves in the same position.

What states gain from this arrangement

overcomes any special interest states

have in seeing SIP revisions go into

effect without EPA approval.

-10-

SUMMARY OF ARGUMENT

Under the plain language of the Clean

Air Act, there can be no doubt that an

existing SIP remains in effect until EPA

approves a proposed revision. In the

interim, EPA delay in reviewing the

proposed revision should bar the agency

from enforcing the existing SIP only if

Congress clearly intended such a result.

The language and intent of the statute

demonstrate that an enforcement bar was

not intended. This is further evidenced

by the fact that the statute itself sets

forth a less drastic remedy for EPA

inaction.

The enforcement bar requested by

General Motors is not only unfounded, it

would not serve the purpose for which

General Motors claims it was intended.

To the extent that the available mandamus

remedy would be ineffective in inducing

-ll-

EPA action, an enforcement bar would also

be ineffective.

General Motors, and any other

polluter similarly situated, will have

every opportunity to argue to the

District Court why EPA’s actions should

diminish the amount of any penalty owed.

A per se rule against the imposition of

penalties is unnecessary and

inappropriate.

ARGUMENT

FEDERAL ENFORCEMENT OF THE EXISTING SIP

PROVISIONS IS NOT BARRED PENDING

COMPLETION OF EPA REVIEW OF A PROPOSED

REVISION.

I. Until EPA Rules on a SIP

Revision, the Existing SIP

Remains In Effect.

The language of the Clean Air Act

makes clear that until a proposed

revision has been finally approved by

EPA, the existing SIP continues to be the

federal standard with which industry must

-12=+

comply.’ This Court has explicitly

recognized this principle. See Train v.

Natural Resources Defense Council, 421

U.S. 60, 92 (1975) (polluter subject to

the requirements of an existing SIP until

a SIP revision has been approved by both

the state and EPA). Other federal courts

have unanimously come to the same

conclusion. 2/ See e.g., U.S. Vv.

7/ Failure to comply with an "applicable

implementation plan" is a violation of

federal law. 42 U.S.C. § 7413. The

"applicable implementation plan," is "the

implementation plan, or most recent

revision thereof, which has been approved

{in accordance with the statutorily

mandated procedures]." 42 U.S.C. §

7410(d). These procedures include

approval by both the applicable state and

EPA, except in limited circumstances

where EPA itself is authorized to

promulgate a SIP in place of a state. 42

U.S.C. §§ 7410(a), 7410(c).

8/ American Cyanamid Co. v. EPA, supra,

810 F.2d at 499-50 and the District Court

opinion in the case at hand are not to

the contrary. Those opinions held that

(footnote continued) , ,_

Ford Motor Co., supra, 814 F. 2d at 1102

(noting “overwhelming authority declaring

that revisions of State Implementation

Plans are ineffective until approved by

EPA").

The principle that a SIP revision is

not effective until approved by EPA

accords with the role assigned to EPA by

the Clean Air Act. While this role may

be limited, it is also critically

important. The statute gives EPA the

primary role in determining whether the

revised SIP will result in timely

attainment of the NAAQS. Accordingly,

(footnote continued)

there were limitations on EPA’s enforcing

the existing SIP, but they did not hold

that this SIP was no longer in effect.

In any event, for the reasons set forth

in Part II, below, these opinions were

wrongly decided.

-14-

the statute also recognizes that a

proposed SIP revision goes into effect

only after EPA determines that the

revision will not jeopardize such

attainment .2/

Faced with the unambiguous language

of the statute and with Train and similar

case law, General Motors has not even

attempted to argue that a SIP revision

9/ The statute includes one exception to

this general rule. Under certain

circumstances where EPA has failed to act

on a SIP revision within four months of

-its submittal, a governor may issue an

emergency suspension of the existing SIP

in order to keep a plant open, subject to

EPA override. 42 U.S.C. § 7410(g). The

existence of this explicit exception

demonstrates that in all other

circumstances, the provisions of the

existing SIP remain in effect. As

recognized by the First Circuit in the

opinion below, the emergency suspension

provision evinces a statutory intent that

exisiting SIP provisions remain valid and

enforceable notwithstanding EPA delay in

reviewing any proposed revision. See 876

F.2d at 1069, n. 6.

The emergency suspension provision

was not used in the case at hand.

could be effective without EPA approval. Amendments to the act .29/ The statute

Nevertheless, General Motors attempts to now not only authorizes EPA to enforce

achieve exactly the same result through applicable SIPs, it compels the agency to

arguing that the existing SIP provisions, do so. See e.g., 42 U.S.C.

while effective, are unenforceable. §§ 7413(a) (1), 7413(b) .>/ There is no

Through this "sleight of hand," General language anywhere in the statute that

Motors attempts to make the language of conditions EPA’s enforcement mandate on

the statute disappear. For the reasons its duty to comply with the four month

set forth below, the Court should reject review deadline.

this attempt. The statute also mandates that all

knowing violations of an existing SIP be

II. EPA’s Failure to Review SIP Revisions

In a Timely Manner Does Not Create A

Bar to Federal Enforcement of the 10/ The 1970 Amendments authorized EPA

Existing SIP. to issue administrative orders and to

seek injunctive relief. See Duquesne v.

A. The Clean Air Act Mandates EPA, supra, 698 F.2d at 463. The 1977

Federal Enforcement of Existing Amendments expanded this power by

SIP Provisions. authorizing the agency to seek civil

penalties and to assess administrative

One of the most important changes penalties. Id.

brought about by the 1970 Amendments to ll/ The statute requires the EPA

Administrator to notify persons violating

the Clean Air Act was its assigning to an applicable SIP of their

noncompliance. 42 U.S.C. § 7413(a)(1).

EPA a role in enforcing SIPs. This role Where, as here, the violations continue

and the polluter is a "major stationary

was greatly strengthened by the 1977 source," the EPA Administrator is

required to bring a civil action to

-16- enforce the SIP. 42 U.S.C. § 7413(b).

-17-

subject to punishment. Pursuant to 42 inferred. See St. Regis Mohawk Tribe,

U.S.C. § 7413(c) (1): _ New York v. Brock, 769 F.2d 37, 41 (2d

[aJny person who knowingly . . . Cir. 1985), cert. denied, 476 U.S. 1140

violates any requirement of an

applicable implementation plan. . . (1986) (government does not lose

shall be punished by [listed

sanctions including penalties and jurisdiction over regulated activity for

imprisonment]. [emphasis added).

failure to act within a particular time

Here again, the statutory mandate is not

frame unless the statute "both expressly

in any way connected to, much less

requires an agency or public official to

conditioned on, the timeliness of EPA

act within a particular time period and

review.

specifies a consequence for failure to

B. The Proposed Enforcement Bar comply with the provision") (cited in

Contravenes the Language and

Intent of the Clean Air Act, As Brock v. Pierce County ("Brock"), 476

Well As General Principles

Against Forefeiture of the U.S. 253, 259 (1986)).

Public Interest.

In Brock, this Court left open the

As discussed above, neither the

possibility that a bar against government

mandate that EPA enforce the provisions

enforcement could be found without

of an existing SIP, nor the mandate that

explicit language to that effect. Brock

knowing violations of those provisions be

made clear, however, that such a bar

subject to punishment, is conditioned on

should not be found absent a showing of

timely EPA review of a proposed

congressional intent through indicia

revision. In the absence of such

other than the plain language of the

language, no such intent should be . -19-

-18-

statute. This flows from the

great principle of public policy,

applicable to all governments alike,

which forbids that the public

interests should be prejudiced by the

negligence of the officers or agents

to whose care they are confided.

Brock at 260 (quoting United States v.

Nashville, C. & St. L. R. Co., 118 U.S.

120, 125 (1886)).

Far from evincing an intent to bar

EPA enforcement, the Clean Air Act

demonstrates an intent to compel

enforcement. The statute unquestionably

mandates that existing SIP provisions

remain in effect until proposed revisions

are approved by both the state and EPA,

and further mandates that knowing

violations of those provisions be

punished. The suggested enforcement bar

would directly contravene this intent by

allowing proposed SIP revisions to be

effective de facto without EPA approval.

-20-

Moreover, another aspect of the Clean

Air Act demonstrates that Congress did

not intend an enforcement bar. This

Court has stated that it will not infer

congressional intent to bar governmental

enforcement because of agency delay where

“there are less drastic remedies

available for failure to meet a statutory

deadline." Brock, supra, 476 U.S. at

260. Section 304 of the Clean Air Act

authorizes aggrieved parties to bring a

mandamus action to require EPA to comply

with non-discretionary duties, such as

its duty to meet statutorily-mandated

deadlines. 42 U.S.C. § 7604(a)(2). See

e.g-, Council of Commuter Organizations

v. Thomas, supra, 799 F.2d. at 888

(section 304 provides the remedy for

undue delay in EPA’s reviewing SIP

revisions). The statute thus explicitly

provides a remedy for EPA tardiness.

Given the availability of this remedy,

-2li1-

courts should not infer a congressional

intent to bar EPA enforcement. Brock,

supra, at 260.+2/

General Motors attempts to

distinguish Brock and similar cases on

the grounds that in those cases, the

question was whether the agency

permanently lost jurisdiction by its

12/ Congress in fact provided an

additional remedy for EPA inaction. As

discussed in note 9, supra, the Clean Air

Act includes an emergency suspension

provision that authorizes a governor to

suspend the terms of an existing SIP in

limited circumstances, subject to EPA

override, in order to keep a plant open.

Under the plain language of the statute,

a governor can invoke the emergency

suspension provision only after the four

month deadline for EPA review has run.

See 42 U.S.C. § 7410(g). This

demonstrates that Congress specifically

contemplated that EPA would at times fail

to meet the four month deadline and that

Congress intended the existing SIP to

remain in full force and effect unless an

emergency suspension was issued. The

Court of Appeals below recognized that

General Motors’ suggested enforcement bar

would render the emergency suspension

provision superfluous. 876 F.2d at 1069,

n.6.

-22-

failure to act. See Petitioner’s Brief

at p. 26. Here, General Motors argues,

the issue is "only" whether EPA is

temporarily barred from enforcing the SIP

until it acts on the revision. Id. This

distinction makes no difference. For the

period of EPA tardiness, any air

pollution that would be allowed under the

SIP revision could result in permanent

harm that would not be undone by

subsequent EPA action.+3/ From

13/ The consequences of temporary

violations should not be underestimated.

The NAAQS are iealth-based standards

designed to protect the most vulnerable

members of society. See S. Rep. No.

91-1196, 91st Cong., 2d Sess. 10

(1970) (setting forth a clear intent that

the most sensitive individuals be

protected). The standards are so

important that compliance with them must,

for some purposes, be measured on an

hourly basis. See e.g., 40 C.F.R.

§ 50.8(a) (2) (mational primary ambient air

quality standard for carbon monoxide set

forth as a one hour average concentration

not to be exceeded more than once per

year).

-23-

the standpoint of potential harm to the

public health during the interim period,

therefore, it makes no difference whether

the enforcement ban is temporary or

permanent. The principles in Brock turn

on whether the public interest would be

forfeited, not the duration of the

forfeiture. These principles dictate

that EPA not be barred from enforcing the

existing stp.2%

14/ It is not a sufficient answer to

note that "citizens" (including downwind

states) could sue to enforce the existing

SIP provisions even if EPA itself were

barred. See 42 U.S.C. § 7604 (citizen

suits). Citizen enforcement was intended

to supplement EPA enforcement, not to

supplant it. This is especially so given

that there are substantial "transaction

costs" that deter citizen enforcement.

Unlike the Clean Water Act, 33 U.S.C.

§§ 1251 et seg., the Clean Air Act has no

general permit and self-monitoring scheme

that would make it readily amenable to

citizen enforcement.

-24-

Cc. The Proposed Enforcement Bar

Will Not Prompt EPA Action

— Available Mandamus

General Motors argues that EPA will

have an adequate incentive to act quickly

on SIP revisions only if the agency faces

an enforcement bar if it does not so

act. See Petitioner’s Brief, at p. 32.

For the reasons discussed below, this

argument fails. The remedy that General

Motors proposes is therefore not only

unfounded, it would not even serve the

purpose for which the petitioner claims

it was intended.

It is important to keep in mind that

under the First Circuit’s formulation,

EPA will still face the "threat" that its

delay will diminish its claim for

penalties. See 876 F.2d at 1068-69.

Adopting an enforcement bar would simply

transform the risk of such a consequence

-25-

into a certainty. The incremental effect

of this change on EPA’s actions is likely

to be minimal .22/

Where EPA delay is caused by factors

within the agency’s control, mandamus

16/

should be an effective remedy.

15/ General Motors’ asserts that without

an enforcement bar, EPA has an

affirmative incentive to delay review of

SIP revisions in order to build an

enforcement case. This fear is unfounded

on the current record and it is contrary

to the presumption that public officials

will act in compliance with the law. See

e.g., el,

842 F.2d 224, 229 (9th Cir. 1988).

Moreover, any incentive to act in such a

manner is removed by the First Circuit’s

recognition that these actions would

diminish EPA’s claim for penalties.

16/ Recently, Massachusetts successfully

used a § 304 suit to compel EPA action on

a SIP revision. Massachusetts v. Reilly,

C.A. No. 89-0403-T (D. Mass.). In July

(footnote continued)

-26-

Indeed, it is difficult to imagine a more

effective remedy than threatened

contempt-of-court sanctions. General

Motors’ “scare story" of protracted

mandamus litigation is undercut by the

inherent simplicity of the mandamus cause

of action.+//

(footnote continued)

of 1988, Massachusetts submitted to EPA a

proposed SIP revision regarding gasoline

volatility. The proposed revision was to

be effective as of May 13, 1989. When

EPA delayed ruling on the revision,

Massachusetts brought its mandamus suit

in February of 1989 and promptly filed a

Motion for Summary Judgment the following

month. EPA approved the revision in

April, prior to the hearing of

Massachusetts’ motion. See 54 Fed. Reg.

19173 (May 4, 1989).

17/ Because EPA has a nondiscretionary

duty to act on SIP submittals within four

months, in order to succeed in a mandamus

suit, a plaintiff would merely have to

prove that a SIP revision had been

submitted, that more than four months had

passed, and that EPA had not yet acted.

-27-

Mandamus suits do not provide an

effective remedy where agency delay is

caused by factors outside of the agency’s

control. In such instances, however, an

enforcement bar would do nothing to speed

the process. In other words, where

mandamus suits would be ineffective, an

enforcement bar would also be

ineffective. Thus, the enforcement bar

proposed by General Motors would not

further the state interest in prompt EPA

review beyond the remedy already

provided. It would serve only to

threaten the public interest in enforcing

the existing SIP in circumstances where

the delay was caused by factors beyond

18/

the agency’s control.

18/ The enforcement bar might in fact

delay, not prompt, EPA review. Without

an enforcement bar, affected companies

will be induced to keep pressure on EPA

to act quickly. With such a bar, this

incentive is removed.

-28-

III. Any Unfairness to General

Motors

Caused By EPA’s Delay Can Be

ee Without An Enforcement

r.

Given the plain language of the

statute, General Motors must have known

that the existing SIP provisions remained

in effect until EPA approved the

revision. Yet, the company declined to

pursue the mandamus remedy that was

available to it. Instead, General Motors

knowingly chose to violate the existing

SIP provisions and thereby to assume the

risk of federal enforcement .22/

19/

Under the undisputed facts, Gen

eral

Motors violated the terms of the existing

SIP even during the four month period

given to EPA to review the proposed

—— Joint Appendix at 19, 79

eneral Motors does not and cannot a

rgue

that the public interest would have been

served by an enforcement i j

mone ne bar during this

-29-

This is not to say that EPA’s

tardiness is irrelevant to the District

Court’s assessment of any penalties.

General Motors has presented a number of

case-specific factors, of varying degrees

of merit, that argue for a reduction of

the amount of penalties to be assessed.

Under the First Circuit’s opinion,

however, General Motors will have every

opportunity to raise these factors in

District Court and to argue that the

Court, in its discretion, should reduce

the penalty accordingly. See 876 F.2d at

1068-69. See generally, United States v._

Ven-Fuel, Inc., 758 F. 2d 763-64 (lst

Cir. 1985) (always within the discretion

of the trial court to determine whether

penalties, given facts of a particular

case, are warranted).

-30-

General Motors is dissatisfied with

leaving the setting of the penalty to the

discretion of the District Court.

Instead, it argues for an enforcement bar

under which, the day the four month

period elapses without EPA decision, a

polluter would be free to begin violating

the existing SIP without fear of any

penalty. There is no language in the

statute that supports General Motors’

understandable desire to escape even the

possibility of penalties. To the

contrary, as discussed above, the statute

explicitly mandates that knowing

violations of any provision of the

existing SIP be subject to punishment. A

per se rule precluding penalties against

companies that knowingly violate existing

SIP provisions would mock governmental

enforcement efforts and diminish the

regulated community’s respect for

-3l-

20/

compliance with the act.

Clearly there will be circumstances

where a company in compliance with a

proposed SIP revision should be penalized

for violating the terms of the existing

SIP. This would be the case, for

example, where the polluter had reason to

This follows regardless of the

— a A merits of the proposed SIP

revision. That is, even where EPA

eventually approved a SIP revision, a

company should not be shielded from

penalties for violating existing law in

the interim period. Under analogous

circumstances, courts have long held that

court orders must be obeyed even where

the order was improperly issued. see

os. 307, 320-21 Papeth. gpte wo — hi

nowingly violate a cou orde

aahbenen the underlying validity of the

order in contempt of court proceeding).

Accordingly, there should be no per se

rule against the imposition of penalties

even where the proposed SIP provision was

“approvable." To this extent, Duquesne

supra, 698 F.2d at 472,

was wrongly decided.

-32-

doubt that the SIP provision would be

approved. 24/ In the case at hand,

General Motors continued to violate the

existing SIP after it had been informed

that EPA had made a preliminary

determination to deny the proposed

revision. Joint Appendix at 19, 91-96.

Whether or not penalties were

assessed in particular circumstances, the

threat of penalties is essential to

governmental enforcement efforts.

General Motors’ proposed enforcement bar

21/ Another circumstance that can arise

is where the SIP revision is ultimately

and untimely denied, but where the result

could not have been predicted either

way. The question would then become

whether the uncertainty should benefit

the public (through allowing enforcement

actions to ensure compliance with the

existing SIP) or industry (through an

enforcement bar until denial of the

revision). Given the purposes of the

Clean Air Act, the uncertainty should be

resolved in favor of the public. cf.

Train, supra, 421 U.S. at 92 (appeal of

denial of SIP revision "carried out on

the polluter’s time, not the public’s").

-33-

would shield one who knowingly violated

federal law from facing even the threat

of penalties. This proposed rule is

unnecessary and inappropriate, and the

Court should decline to adopt it.

CONCLUSION

For the reasons set forth above, this

Court should affirm the decision of the

United States Court of Appeals for the

First Circuit.

Respectfully submitted,

JAMES M. SHANNON

ATTORNEY GENERAL

JAMES R. MILKEY*

ASSISTANT ATTORNEY GENERAL

Attorneys for Amicus Curiae

Commonwealth of Massachusetts

*Counsel of Record

[Other Counsel Listed On Next

Page)

-34-

OTHER COUNSEL FOR AMICI STATES

JOHN K. VAN DE KAMP

Attorney General of

California

CLARINE NARDI RIDDLE

Attorney General of

JIM JONES

Attorney General of

NEIL F. HARTIGAN

Attorney General of

ROBERT T. STEPHAN

Attorney General of

FRANK J. KELLEY

Attorney General of

HUBERT H. HUMPHREY,

Attorney General of

ROBERT ABRAMS

Attorney General of

LACY H. THORNBURG

Attorney General of

JEFFREY AMESTOY

Attorney General of

MARY SUE TERRY

Attorney General of

KEN EIKENBERRY

Attorney General of

-35-

Connecticut

Idaho

Illinois

Kansas

Michigan

III

Minnesota

New York

North Carolina

Vermont

Virginia

Washington