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

No. 89-369

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

GENERAL MOTORS CORPORATION,

Petitioner,

vs.

THE UNITED STATES OF AMERICA

On Writ of Certiorari to the

United States Supreme Court on appeal

from the First Circuit, United States

Court of Appeals

Brief of Mid-America Legal Foundation

as Amicus Curiae supporting

the position of petitioner

Martha A. Churchill, Counsel of Record

MID-AMERICA LEGAL FOUNDATION

20 N. Wacker Drive, Suite 1721

Chicago, Illinois 60606

312/263-5163

James T. Harrington, Co-Counsel

Ross & Hardies

150 N. Michigan Avenue

Chicago, Illinois 60601

312/558-1000

TABLE OF CONTENTS - 6 @ @ «

TABLE OF AUTHORITIES. ....

INTEREST OF AMICUS CURIAE . .

SUMMARY OF ARGUMENT .....

AMGUMEMET «© ec se ee ee ee

CONCLUSION. . . 1. «© «© «© © « «

Page 1

TABLE OF AUTHORITIES

CASES:

U.S. v. General Motors Corp., 876

F. 2d 1060 (lst Circuit, 1989)

American Cyanamid Co. v. EPA, 810

F. 2d 493 (Sth Cir. 1987)

STATUTES:

Clean Air Act, 42 USCA § 7410 (a) (3)

Page 2

INTEREST OF AMICUS CURIAE

Mid-America Legal Foundation ("MALF")

is a non-profit Illinois corporation. MALF

has an interest in the disposition of the

case which is before this Court on writ of

certiorari to review the judgment and

opinion of the United States Court of

Appeals for the First Circuit in United

States vs. General Motors, 876 F. 2d 1060

(1989, lst Circuit), based on the expertise

and purpose of this organization.

MALF was organized in 1975 to engage

in legal research, study and advocacy for

the benefit of the general public. MALF

takes special interest in issues of nation-

al scope that have a direct impact on the

Midwest region, namely Illinois, Indiana,

Iowa, Michigan, Minnesota, Ohio and Wiscon-

sin.

The Midwest region is one of the most

important manufacturing areas of the na-

tion. Many of the states in the Midwest

Page 3

are within the purview of the USEPA Region

5, which had 83 “Source Specific” SIP

(State Implementation Plan) variances

awaiting Agency approval or disapproval as

of the end of 1989. The issues before the

Court have direct application to the

industries and states in the Midwest.

Page 4

The USEPA cannot claim it lacks re-

sources to comply with the statutory four

month deadline for deciding a SIP variance,

where it has sufficient staffing to bring

an enforcement action against that same

regulated entity.

First of all, this court should affirm

the ruling of the First Circuit holding

that the four-month rule applies equally to

SIP revisions as to original SIP's. Clean

Air Act, 42 USCA § 7410 (a) (3) (A). This

is the most logical result, in light of the

Page 5

statutory scheme which requires swift

action by all concerned.

The First Circuit has indicated that

the USEPA ~annot be expected to act on all

SIP variance applications within the

four-month time allotment, as it lacks the

necessary resources to do so. However the

actions of the Agency prove that this is

not the reason for its failure to act in a

timely manner. This can be seen by the

fact that the Agency frequently brings

enforcement actions against the very

companies which have applications pending

for SIP variances.

Certainly an approval or disapproval

of a SIP variance takes less effort for the

Agency than commencing litigation against

the company. .

The rule set forth in American Cyana-

mid Co. v. EPA, 810 F. 2d 493 (Sth Cir.

1987) is logical and fair, in that the

Agency has within its control the option of

Page 6

handing down a decision as to the SIP

variance. This procedure would provide the

company advance knowledge as to its posi-

tion, and it could then act accordingly.

It is absurd for the Agency to say, on

the one hand, that it lacks the resources

to hand down a timely decision as to a SIP

variance, but meanwhile it has the re-

sources to bring litigation with respect to

the same issue which is the subject of the

SIP variance.

The First Circuit suggests the trial

court may take into consideration the

Agency's tardiness as to the SIP variance,

in its decision as to the amount of the

penalty against a company for its violation

of the underlying SIP. But such a plan

would lead to a totally unworkable system,

in that a regulated industry would have no

means of knowing in advance whether its

course of conduct was legal within the

applicable time frame.

Page 7

a

Consider the following hypothetical:

The USEPA brings an enforcement action

against a company while its requested SIP

' Variance is “pending”. The Agency then

obtains a judgment and penalties. After

that, it grants the sIp variance. The EPA

thus obviates the right to obtain the

penalties which it already has extracted.

The lack of due process rights to the

states and to the regulated industries is

unavoidable if the Agency prevails in this

matter, and is permitted to bring enforce-

ment actions while sIp variance requests

languish far in excess of the four months

allowed for decision.

CONCLUSION

The Agency should be granted some

deference in its activities promoting a

cleaner environment for the next genera-

tion. On the Other hand, this Court ought

not allow needless trampling of due process

Page 8

rights to the regulated industries, and

even to the States which have in good faith

approved the SIP variance requests before

they are submitted to the USEPA.

The USEPA ought to be compelled to

make a decision as to a SIP variance re-

quest, or delay enforcement until such

decision can be made. Such a practice by

the USEPA would protect the environment and

the rights of the regulated entities.

Respectfully submitted:

AMERICA LEGAL FOUNDATION, AMICUS CURIAE

Martha A. Churchill, Counsel of Record

20 N. Wacker Drive, Suite 1721

Chicago, Illinois 60606

(312) 263-5163

James T. Harrington, Co-Counsel

Ross & Hardies

150 N. Michigan Avenue

Chicago, IL 60601

(312) 558-1000

Dated: January 16, 1990

Page 9