# Amicus Curiae Brief — General Motors Corp. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0670%3A19 ## 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0670%3A19. Public record. Not legal advice.